SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): October 11, 1996
MICROTECH MEDICAL SYSTEMS, INC.
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(Exact Name of Registrant as Specified in Charter)
Colorado 2-94117-D 84-0867911
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
Holly Sugar Building, Suite 330, 2 N. Cascade Avenue, Colorado Springs, CO 80903
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including Area Code:
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719/520-1800
<PAGE>
ITEM 2. ACQUISITION OF ASSETS.
Pursuant to a Purchase Agreement dated September 30, 1996 between
Microtech Medical Systems, Inc. (the "Company") and Glacier Valley Holding
Corporation, a Colorado Corporation ("GVH"), on October 9, 1996, the Company
formally completed the purchase of approximately thirteen (13) acres, comprised
of approximately thirty (30) platted lots and approximately twenty (20)
unplatted lots located in Colorado Springs, Colorado. The real estate is a
portion of a manufactured home subdivision known as The Community at Bear Creek.
Escrow closed on October 9, 1996. The property was acquired by the Company for a
total purchase price of Seven Hundred Thousand and No/100 ($700,000.00) Dollars,
consisting of the following:
1. Assignment of real estate sales contract on property owned by
the Company in the amount of One Hundred Twenty Thousand and No/100
($120,000.00) Dollars;
2. Assignment of Promissory Note secured by a Deed of Trust, both
in favor of the Company, in the amount of One Hundred Ten Thousand and
No/100 ($110,000.00); and
3. Six million two hundred twenty-five thousand (6,225,000) shares
of restricted Common Stock of the Company issued to GVH. For purposes
of determining the purchase price, the value assigned to the restricted
Common Stock of the Company was $.0267 per share. The Company paid no
cash to GVH as a result of the transaction, although the Company
assumed a certain note secured by Deed of Trust in favor of James L.
Wright, Jr., in the face amount of Three Hundred Three Thousand Seven
Hundred Ninety-Three and No/100 ($303,793.00) Dollars.
The Company initially intends to commence the development of the
initial thirty (30) platted lots in preparation of the sale to manufactured home
dealers, residential customers and others.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
a. Financial Statements and Proforma Financial Information - It is
impracticable to provide the required financial statements and proforma
financial information at this time, and the Company intends to file with the
Commission as soon as they are available and within the required time periods.
b. Exhibits
EXHIBIT NO. DESCRIPTION
10.17 Purchase Agreement dated September 30, 1996 between the
Company and Glacier Valley Holding Corporation.
10.18 Promissory Note dated July 25, 1996 between Glacier
Valley Holding Corporation and James L. Wright, Jr.,
assumed by the Company.
10.19 Amendment to Loan Documents dated October 11, 1996
between Company and James L. Wright, Jr.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: October 15, 1996
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MICROTECH MEDICAL SYSTEMS, INC.
By: /s/ J. Royce Renfrow
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J. ROYCE RENFROW
Corporate Secretary and General Counsel
AGREEMENT OF SALE
AGREEMENT, dated as of and effective this 30th day of September, 1996, by and
between MICROTECH MEDICAL SYSTEMS, INC., a Colorado corporation (the "Buyer"),
and GLACIER VALLEY HOLDING CORPORATION, a Colorado corporation (the "Seller).
WHEREAS: the Seller is the owner of a real estate development known as Community
at Bear Creek Phase III and other assets,
AND WHEREAS: Buyer is the owner of a certain real estate sale contract, note
secured by deed of trust and is prepared to issue certain shares of common stock
in itself to exchange for said real estate development,
AND WHEREAS: it is the intention of the parties hereto that, upon consummation
of the transaction herein contemplated, the Buyer will acquire one hundred
percent (100%) said real estate development, Seller will acquire a one hundred
(100%) percent interest in said real estate sales contract, note and deed of
trust and certain shares of common stock in Buyer.
NOW THEREFORE, IT IS AGREED THAT:
1. Sale of Community at Bear Creek, Phase III.
1.1 Other than as disclosed, the Seller represents that it
owns the tangible and intangible assets (the "Assets") including one hundred
(100%) percent of the real estate as listed in Disclosure Schedule 1.1, attached
hereto and incorporated herein by reference, free and clear of all liens and
encumbrances, other than disclosed herein and will have such ownership on the
Closing Date. Seller shall execute a General Warranty Deed to Buyer transferring
ownership of said assets at closing.
1.2 In payment for said real estate subject to deed as set
forth on Disclosure Schedule 1.1, Buyer shall transfer the following property to
Seller:
1.2.1 The Buyer shall make a downpayment consisting of the
assignment of a certain sales contract in the amount of One Hundred Twenty
Thousand and No/100 ($120,000.00) Dollars upon the real property described
therein, a copy of which contract is attached hereto and incorporated herein by
reference as Disclosure Schedule 1.2.1 at the time of execution of the contract.
1.2.2 The assignment and transfer at closing to Seller of a
certain note and deed of trust upon Lot 9, Mountaindale Equestrian Estates,
Fremont County, Colorado, in the amount of One Hundred Ten Thousand and No/100
($110,000.00) Dollars, a copy of which is attached hereto as Disclosure Schedule
1.2.2 and incorporated herein by reference.
1.2.3 The balance of the purchase price shall be paid to
Seller by the issuance of sixty-two thousand two hundred fifty (62,250) shares
of common stock in Buyer following an anticipated one hundred to one reverse
split currently being accomplished by Buyer. In the event said reverse split
does not occur (or is not 100 to 1), the price per share and shares issued shall
be adjusted accordingly. The common stock issued to Seller shall be subject to
piggyback registration rights in Seller upon Buyer's next public offering,
provided, however, fifty (50%) percent of the stock so registered shall be
subject to a lock-up agreement of standard form for a period of one (1) year.
2. Representations, Warranties and Covenants of Both Parties.
2.1 Representations, Warranties and Covenants of the Seller.
The Seller covenants, warrants, and represents as follows:
2.1.1 The Seller owns its assets (as, in part, defined in
Section 1.1), free and clear of all liens, encumbrances and charges and, except
as will be set forth in Disclosure Schedule Number 1.1 and those arising
involuntarily by operation of law. The Seller presently has such title. All of
the Seller's assets are in the possession of the Seller.
With respect to the real estate owned by the Seller and the
encumbrances thereon, as set forth in Disclosure Schedule Number 1.1, the Seller
specifically Covenants, Warrants and Represents as follows:
(A) The Seller is currently in full compliance with
all Covenants, Conditions and Agreements set forth in the various Deeds of
Trusts listed on Disclosure Schedule Number 1.1 and further, Covenants, Warrants
and Represents that this Agreement does not violate any such Agreements of
Corporation with Owners of said encumbrances.
(B) The holder of the note and deed of trust (James
L. Wright, Jr.) as set forth in Disclosure Schedule 1.1 has agreed to the
assumption of the note and deed of trust by Buyer, partial release schedule in
exchange for proportionate reduction in note of approximately Ten Thousand One
Hundred Twenty-Six and 53/100 ($10,126.53) Dollars per lot, and has further
agreed to subordinate said note and deed of trust to a note and deed of trust
for development costs incurred by Buyer in preparation of the project site for
sale in an amount determined to be reasonable.
2.1.2 Copies of the Seller's Articles of Incorporation and
By-Laws, including all amendments thereto, have been delivered to the Buyer, and
such copies are true, complete and correct in every particular. The Seller is
currently in good standing with the State of Colorado.
2.1.3 The Seller has the power to enter into this agreement
and to carry out its obligations hereunder. The execution and delivery of this
agreement and the consummation of the transaction contemplated have been duly
authorized by the Seller. No other company, court or other proceedings are
necessary to authorize the consummation of this agreement and the transactions
contemplated hereby. This agreement has been duly executed and delivered by the
Seller, and constitutes a valid and binding obligation of the Seller and the
Seller. The execution and performance of this agreement by the Seller does not
violate, or result in a breach of, or constitute a default under any judgment,
order or decree to which he may be subject, nor does such making or performance
constitute a violation of or conflict with any provision of the Seller's
Articles of Incorporation or By-Laws. Neither the execution and delivery of this
agreement, nor the consummation of the transaction contemplated hereby, nor
compliance with the terms and provisions hereof, will result in the creation or
imposition of any lien, charge or encumbrance upon any of the Seller's assets
pursuant to the terms of, or conflict in any way with the provision of, or
constitute a default under, or require the consent of any other party to, any
indenture, mortgage, deed of trust, agreement, lease or other instrument to
which the Seller or the Seller is a party or by which it or they may be bound,
or to which it or he may be subject.
2.1.4 Disclosure Schedule Number 2.1.4 will contain a list of
all outstanding vendor purchase orders and accounts payable of the Seller. Said
lists will be true, complete and correct in all material respects to the best of
Seller's knowledge. The Seller's relations with its customers are satisfactory,
and the Seller has no reason to believe that any dispute (other than those which
arose or may arise in the ordinary course of business) will arise between it and
any of them or any reason to believe that any of them will terminate its
business relationship with the Seller, or, after consummation hereof, with the
Buyer.
2.1.5 The purchase contemplated hereby does not require the
approval or consent of any governmental authority having jurisdiction over the
Seller.
2.1.6 From the date of this Agreement to the Closing Date the
Seller will not have, except with the written consent of the Buyer: (i)
mortgaged, pledged or subjected to lien, charge or any other encumbrance, any of
the real estate or other assets being sold to Buyer pursuant to this Agreement,
other than as may arise involuntarily by operation of law or as may be
distributed to the Seller as contemplated by this agreement; (ii) sold, assigned
or transferred any of its assets other than in the ordinary course of business
or as may be distributed to the Seller as contemplated by this agreement; (iii)
suffered any material damages or losses to its assets; (iv) entered into any
transactions other than in the ordinary course of business in accordance with
good business practice; (v) permitted the occurrence of any event not consistent
with the representations and warranties herein.
2.1.7 To the extent of the Seller's and Seller's knowledge,
neither the Seller nor the Seller has any notice of any actions, suits, claims,
proceedings, or investigations (whether or not purportedly on behalf of or
against the Seller) pending and no knowledge of any that are threatened against
or affecting the Seller's real estate at law or in equity, or before or by any
federal, state, municipal or other governmental court, department, commission,
board, bureau, agency or instrumentality, domestic or foreign, unless set forth
in Schedule 2.1.7. The Seller is not in default with respect to any order, writ,
injunction or decree of any court or federal, state municipal or other
governmental department, commission, board, bureau, agency or instrumentality
affecting its business. There are no violations of any laws, regulations and
orders applicable to the Seller's assets being sold hereby, including without
limitation all environmental and pollution control requirements that are
presently applicable or that have been announced as being applicable at some
future date.
2.1.8 The premises, owned by the Seller does not encroach on the
property of others, and there are no violations of any building or zoning or
other laws by the premises.
2.1.9 The Seller is not a party to any lease, license, contract or
royalty agreement affecting or relating to the Seller's property being sold
other than those as will be listed and described in Disclosure Schedules
attached hereto.
2.1.10 Neither the Seller nor the Seller has become in any way
obligated for any broker's, finder's, agent's or similar fee with respect to the
transactions contemplated by this agreement other than to its accountants and
attorneys.
2.1.11 No representation or warranty of the Seller made in this
Agreement, nor in any document, certificate, or schedule required to be
furnished pursuant to this agreement, contains or will contain any untrue
statement of a material fact, and copies of any documents furnished to the Buyer
will be true and correct copies of such documents.
2.1.12 All of the foregoing representations and warranties will
be true on and as of the closing date.
2.2 REPRESENTATIONS and WARRANTIES of the BUYER. The Buyer
represents and warrants as follows:
2.2.1 It is a corporation duly organized and validly existing
and in good standing under laws of the State of Colorado.
2.2.2 It has the power to enter into this agreement and to
carry out its obligations hereunder. The execution and delivery of this
agreement and the consummation of the transactions contemplated have been duly
authorized by its Board of Board of Directors; no other proceedings are
necessary to authorize its Officers to effectuate this agreement and the
transactions contemplated thereby. This agreement has been duly executed and
delivered by it, and constitutes a valid obligation binding on it. The execution
and performance of this agreement by it does not violate, or result in a breach
of, or constitute a default under, any judgment, order or decree to which it may
be subject, nor does such making or performance constitute a violation of or
conflict with any provision of its charter or by-laws. Neither the execution and
delivery of this agreement, nor the consummation of the transactions
contemplated hereby, nor compliance with the terms and provisions hereof, will
result in the creation or imposition of any lien, charge or encumbrance upon any
of its property or assets pursuant to the terms of, or conflict in any way with
the provisions of, or constitute a default under, or require the consent of any
other party to, any indenture, mortgage, deed of trust, agreement, lease or
other instrument to which it is a party or by which it may be bound, or to which
it may be subject.
2.2.3 It has not employed any broker, finder or agent, nor has
it otherwise become in any way obligated for any broker's, finder's, agent's or
similar fee with respect to the transactions contemplated by this agreement.
2.2.4 The execution and carrying out of this agreement and
compliance with the provisions hereof by it will not violate, with or without
giving notice and/or the passage of time, any provisions of law applicable to
it.
2.2.5 The Buyer does not have any knowledge of any claim,
litigation, threatened litigation or any other action which has been instituted
or threatened affecting its ability to perform its obligations under this
agreement.
2.2.6 All of the foregoing representations and warranties
will be true on and as of the closing date.
3. INVESTIGATION. During the period prior to the closing date, the
Seller shall cause the Buyer to have free access to the offices, facilities,
records, files, books of account and copies of tax returns of the Seller for the
purposes of conducting an investigation of the subject property and title
thereto, and all other matters relating to the subject property and assets;
provided, however, that such investigation shall be conducted in any manner that
does not unreasonably interfere with the Seller's normal operations. The Seller
shall cause the Seller's personnel to aid and assist such investigation and
shall make its counsel, accountants, engineers, employees and other
representatives available for such purposes. During such investigation the Buyer
shall have the right to make copies of such records, files, tax returns and
other materials as it may deem advisable. The Buyer and its representatives
shall treat all information originally obtained in such investigation and not
otherwise known to it or already in the public domain as confidential and shall
not use such information in the conduct of its business, and shall return to the
Seller all copies of received or made of material belonging to the Seller as
follows:
(A) As to tax documents and matters, the same shall
be confidential forever and shall be returned if the transaction is not
consummated.
(B) As to all other matters, if this transaction is
not consummated, the same shall be confidential forever and the same shall be
returned; if it is consummated, the same shall remain confidential.
4. INDEMNIFICATION.
4.1 Nothing herein to the contrary withstanding, the Seller's
obligations under this agreement for breach of promise, misrepresentation,
breach of warranty or nonfulfillment of any obligation or agreement, negligence,
promissory estoppel, detrimental reliance or any other action which arises out
of the transactions herein contemplated shall be only as follows:
(A) all liabilities or obligations of the Seller as
of the Closing Date (other than those specifically disclosed to the Buyer
pursuant hereto) for taxes (but in any case excluding taxes resulting from
Internal Revenue Code Section 338 or any transaction contemplated by this
agreement) and any reasonable legal and other expenses which may be incurred by
the Buyer and its successors and assigns relating thereto; and
(B) any and all damage, loss, deficiency, costs or
expenses resulting from any other misrepresentation, breach of warranty or
non-fulfillment of any obligation or agreement on the Seller's part under this
Agreement, including without limitation any and all actions, suits, proceedings,
judgments and reasonable legal and other expenses incident to the foregoing.
4.2 Said notice shall be to the Seller of any claim or
litigation the existence of which gives rise to the operation of the foregoing
indemnity, and Seller shall have the power to investigate and defend such claim
at his expense with power to settle such claim, unless the amount claimed and
the reasonably estimated expenses of defense exceed the amount set forth in
Section 4.1 above.
4.2.1 If the Seller fails to defend, the Buyer may
defend such claim with power to settle and the Seller shall pay the costs and
expenses thereof and the amount of any settlement or judgment up to the amount
set forth Section 4.1 above; provided however, that in any case, no settlement
shall bind the Seller to pay any amount which is not first approved in writing
by the Seller.
4.2.2 If the amount claimed and the reasonably
estimated expenses of defense exceed the amount set forth in Section 4.1 above
then either (1) the Seller may defend (and assume the entire risk of the
settlement or judgment and costs of defending the same (whether or not they
exceed the amount set forth in Section 4.1 above) or (2) the Seller may notify
the Buyer (within 10 days of receiving written notice of the claim from the
Buyer) that the Buyer is to defend such claim with power to settle and the
Seller shall pay the costs and expenses thereof and the amount of any settlement
or judgment (but the total liability of the Seller shall not be in excess of the
amount se forth in Section 4.1 above).
4.3 Whether or not the transactions herein contemplated shall
be consummated, the Buyer will pay the fees, expenses and disbursements of the
Buyer and its agents, representatives, accountants and counsel incurred in
connection with the subject matter of this agreement and any amendments thereto,
and the Seller will pay such fees, expenses and disbursements of the Seller and
its agents, representatives, accountants and counsel (if not otherwise accrued).
5. Termination. This agreement may be terminated by the Buyer
under any of the following circumstances by notice in writing if during the
period from the date hereof to the closing date any of the following shall
occur:
5.1 The Seller's assets being sold shall suffer any loss from
fire, flood, explosion or other casualty which substantially affects the use
thereof or, irrespective of insurance, their value.
5.2 The Buyer shall learn of any fact or condition with
respect to the Seller's real property being sold hereunder which is
substantially at variance with one or more of the representations or warranties
as set forth above or with other written information provided to the Buyer by
the Seller, and after written notice thereof the Seller shall be unable to
furnish reasonable assurance satisfactory to the Buyer.
5.3 The Seller or the Seller shall commit a substantial breach
of any one or more of the obligations or prohibitions set forth in Section
2.1.10 of this agreement and shall be unable to furnish reasonable assurance
satisfactory to the Buyer.
5.4 On the occurrence of any of the events specified in
Sections 5.1 to 5.3 above, the parties may agree upon an amount by which the
consideration shall be reduced on account of such event, in which case the Buyer
shall not terminate this Agreement and the consideration shall be so reduced. If
the occurrence is a loss due to fire, flood, explosion or other casualty, the
Buyer shall have the right at its election within ten (10) days after such event
to either terminate or to require consummation of this agreement with that
portion of any insurance proceeds received which relates to the damage to the
operating assets included in the assets transferred.
6. No Liability for Failure to Consummate. If this agreement shall not
be consummated either because it is terminated pursuant to a reasonable
application of Sections 5.1, 5.2, 5.3, or 5.4 to the actual facts or because of
the inability of any of the parties by reason or causes beyond its control to
carry out its performance as contemplated by this Agreement, the downpayment set
forth in Paragraph 1.2.1 shall be refunded to Buyer, and no party shall be
liable to any other for loss, damage, or expense and the only remedy of any
party shall be to terminate or cancel this agreement.
7. Closing.
7.1 Prior to the Closing. Seller shall cooperate in any documents,
applications, and procedures which may be required by the State of Colorado,
County of El Paso, City of Colorado Springs. This obligation of Sellers shall be
a continuing one and shall survive the closing of this agreement.
7.1.1 Any fees and costs incurred by the respective parties
shall be the sole obligation of the party so incurring.
7.2 Closing Date. The closing date shall be October 9, 1996, or such
earlier or later date as may be mutually agreed upon by the parties. The closing
shall take place on the closing date at Capital Title Services, 2 N. Nevada
Avenue, Colorado Springs, CO.
7.3 During the closing.
7.3.1 The Buyer shall deliver such opinions of counsel,
receipts, certifications, notices and further assurances as counsel for the
Seller may reasonably request, including a certificate executed by the Buyer's
Board of Directors that the representations and warranties made in this
agreement by the Buyer are correct as of the closing date with the same force as
though made on the closing date, and an opinion of its counsel, to the following
effects:
(A) that all corporate action necessary for the Buyer
to authorize the execution and delivery of this Agreement and the transactions
contemplated thereby have been duly and validly taken, and the Agreements
constitute legal, valid, binding and enforceable obligations, except as limited
by any applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights and remedies of creditors generally, and except as the
remedy of specific performance, rests in the discretion of the court;
(B) The Seller shall deliver to the Buyer, a General
Warranty Deed representing the real estate listed in Disclosure Schedule 1.1,
consents to assumption of indebtedness and development cost subordination upon
said real estate, as set forth in Disclosure Schedule 1.1 and Secretarial
Certificate setting forth resolutions of the Board of Directors and/or
shareholders of the corporation authorizing sale of said property, together with
authorization to the Officers of the Corporation to consummate the transaction
contemplated by this Agreement.
(C) The Seller and Seller shall deliver to the Buyer,
in form and substance mutually satisfactory to the parties any and all other
documents, including, but not limited to assignments, deeds, consents to
assignment, bills of sales, releases, and transfers necessary to accomplish the
transactions herein contemplated, and Buyer shall deliver to Seller The Seller
shall deliver to the Buyer, in form and substance mutually satisfactory to the
parties, the promissory notes and other documents necessary to accomplish the
transactions herein contemplated.
7.4 At Closing. The following shall be accomplished at closing:
7.4.1 Delivery of documents set forth above in Section 8.3.
7.4.2 At closing, Buyer shall tender executed instructions to
Buyer's transfer agent to issue Seller approximately sixty-two thousand two
hundred fifty (62,250) shares of common stock in Buyer, which is to be issued
pursuant to Paragraph 1.2.3 above.
8. After the Closing. Subsequent to the closing:
8.1 Each party to this agreement shall at the request of any
other furnish, execute and deliver such documents, instruments, opinions of
counsel, certificates, notices or other further assurances as counsel of the
requesting party shall reasonably deem necessary or desirable for effecting
complete consummation of this agreement.
8.2 The Buyer shall give the Seller access to the files and
records delivered to the Buyer hereunder during usual business hours as may be
required in connection with tax matters or other legitimate needs so long as the
operations of the Buyer are not unreasonably interfered with.
9. Miscellaneous.
9.1 Each and every one of the representations, warranties,
covenants and agreements made herein by any party (including any statements made
in the Disclosure Schedules and in any certificates, schedules, exhibits,
instruments or documents furnished pursuant to or concurrently with this
Agreement), shall survive the closing and the consummation of the transactions
contemplated by this Agreement, notwithstanding any investigation heretofore or
hereafter made by the parties hereto.
9.2 All notices, approvals or other communications to be sent
or given to the Seller shall be deemed validly and properly given or made if in
writing and delivered by hand or registered or certified mail, return receipt
requested, and addressed to Glacier Valley Holding Corporation, Seller, 13 S.
Tejon Street, Colorado Springs, CO, 80903.
All notices, approvals or other communications to be
sent or given to the Buyer shall be deemed validly and properly given or made if
in writing and delivered by hand or registered or certified mail, return receipt
requested, and addressed to Microtech Medical Systems, Inc., Holly Sugar
Building, Suite 330, 2 N. Cascade Avenue, Colorado Springs, CO, 80903.
Any of the parties hereto may give notice to the
others at any time by the methods specified above of a change in the address at
which, or the person to whom, notices addressed to it are to be delivered in the
future.
9.3 This agreement, together with the Disclosure Schedules and
other documents delivered pursuant hereto, including the lease of the Premises,
if any, constitutes the entire agreement among the parties hereto and supersedes
all prior correspondence, conversations and negotiations. This agreement may be
executed in several counterparts that together shall constitute but one and the
same agreement. This agreement shall be binding upon and inure to the benefit of
the successors and assigns of the parties. The title of the Sections of this
agreement have been assigned thereto for convenience only and shall not be
construed as limiting, defining or affecting the substantive terms of the
agreement. This agreement may be amended only by a writing executed by the
parties hereto. This agreement shall be construed and interpreted according to
the laws of the State of Colorado.
9.4 The parties agree, upon the request of any other party, to
execute any agreements, documents or instruments consistent with this agreement
which are necessary to consummate the transactions contemplated in this
agreement.
9.5 This agreement may be executed in any number of
counterparts, each of which shall be taken to be an original.
9.6 No modification of this agreement shall be valid unless
such modification is in writing and signed by all of the parties to this
agreement.
9.7 No waiver of any provision of this agreement shall be
valid unless in writing and signed by the person or party against whom charged.
9.8 The invalidity or unenforceability of any particular
provision of this agreement shall not affect the other provisions of this
agreement, and this agreement shall be construed as if such invalid or
unenforceable provision was omitted. All parties hereto having participated
actively in the negotiation and drafting of this agreement, and each party
having been represented by counsel, the terms of this agreement shall not be
construed against, nor more favorably to, any party, regardless of their
responsibility for its preparation.
9.9 This agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, legal representatives,
executors, administrators, successors and assigns.
9.10 This agreement and any documents or instruments delivered
pursuant to this agreement constitute the entire agreement and understanding
between the parties and supersede any prior agreement and understanding relating
to the subject matter of this agreement.
9.11 Whenever in this agreement words, including pronouns, are
used in the masculine, they shall be read and construed in the feminine or
neuter wherever they would so apply, and wherever in this agreement words,
including pronouns, are used in the singular, they shall be read and construed
in the plural, wherever they would so apply.
<PAGE>
9.12 This agreement shall be subject to and governed by the
laws of the State of Colorado, including its choice of laws, irrespective of the
residence of the parties.
SELLER:
GLACIER VALLEY HOLDING CORP.
BY: /s/ Cary Carpenter
---------------------------
Its: President
---------------------------
ATTEST:
BY: __________________________
Its: __________________________
BUYER:
MICROTECH MEDICAL SYSTEMS, INC.
BY: /s/ J. Royce Renfrow
---------------------------
Its: Secretary
---------------------------
STATE OF }
} ss.
COUNTY OF }
On this _____ day of _______________, 19___, before me personally
appeared _______________, to me known as the __________ of _______________ and
who executed the within instrument, and who acknowledged the same to be in
behalf of said Seller by authority of its Board of Directors and said
_______________ acknowledged said instrument to be the free act and deed of said
Seller.
------------------------------
Notary Public
My Commission Expires:
<PAGE>
STATE OF }
} ss.
COUNTY OF }
On this _____ day of _______________, 19___, before me personally
appeared _______________, to me known as the __________ of _______________ and
who executed the within instrument, and who acknowledged the same to be in
behalf of said Seller by authority of its Board of Directors and said
_______________ acknowledged said instrument to be the free act and deed of said
Buyer.
------------------------------
Notary Public
My Commission Expires:
<PAGE>
DISCLOSURE SCHEDULE 1.1
TO
AGREEMENT OF SALE
BETWEEN
MICROTECH MEDICAL SYSTEMS, INC.
AND
GLACIER VALLEY HOLDING CORPORATION
DATED THE 30TH OF SEPTEMER 1996
1. Description of Property
A portion of the Community at Bear Creek, comprising Phase II
of that development, as set forth in Exhibit "A" attached hereto and
incorporated herein by reference, with the exception of one lot which Seller has
previously agreed to deed to James L. Wright, Jr., pursuant to an unrelated
transaction and in consideration for his release of Seller from liability under
note and deed of trust being assumed by Buyer and subordination of said note and
deed of trust to a note and deed of trust for development costs upon said
property.
2. Encumbrances
A. Promissory Note payable to James L. Wright, Jr., in the
amount of Three Hundred Three Thousand Seven Hundred Ninety-Three and No/100
($303,793.00) Dollars, dated the 25th day of July, 1996, secured by Deed of
Trust of even date, copies of which are attached hereto and incorporated herein
by reference.
B. Taxes for 1996, payable in 1997, which shall be prorated
to date of closing.
3. Assumptions
Assumption of Three Hundred Thousand Seven Hundred
Ninety-Three and No/100 ($303,793.00) Dollar Promissory Note dated July 25, 1996
secured by Deed of Trust, copies of which are attached to this Disclosure
Schedule 1.1 as Exhibits "B" and "C", and incorporated herein by reference.
<PAGE>
DISCLOSURE SCHEDULE 2.1.4
TO
AGREEMENT OF SALE
BETWEEN
MICROTECH MEDICAL SYSTEMS, INC.
AND
GLACIER VALLEY HOLDING CORPORATION
DATED THE 30TH OF SEPTEMER 1996
None.
<PAGE>
DISCLOSURE SCHEDULE 2.1.7
TO
AGREEMENT OF SALE
BETWEEN
MICROTECH MEDICAL SYSTEMS, INC.
AND
GLACIER VALLEY HOLDING CORPORATION
DATED THE 30TH OF SEPTEMER 1996
None.
================================================================================
The printed portions of this form approved by the
Colorado Real Estate Commission (NTD 81-11-83)
- -------------------------------------------------
IF THIS FORM IS USED IN A CONSUMER CREDIT TRANSACTION, CONSULT LEGAL COUNSEL.
THIS IS A LEGAL INSTRUMENT, IF NOT UNDERSTOOD, LEGAL, TAX OR OTHER COUNSEL
SHOULD BE CONSULTED BEFORE SIGNING.
PROMISSORY NOTE
U.S. $303,793.00 Colorado Springs, Colorado
July 25, 1996
1. FOR VALUE RECEIVED, the undersigned (Borrower) promise(s) to pay James L.
Wright, Jr.
or order, (Note Holder) the principal sum of Three Hundred Three Thousand Seven
Hundred Ninety-Three and No/100 ($303,793.00)
U.S. Dollars, with interest on the unpaid principal balance from July 25, 1996,
until paid, at the rate of 15.5 percent per annum. Principal and interest shall
be payable at P. O. Box 1083, Monument, Colorado 80132, or such other place as
the Note Holder may designate, in 12 payments of Three Thousand Nine Hundred
Twenty-three and 99/100 Interest only Dollars (U.S. $3923.99), due on the 25th
day of each month, beginning August 25th, 1996. Such payments shall continue
until the entire indebtedness evidenced by this Note is fully paid; provided,
however, if not sooner paid, the entire principal amount outstanding and accrued
interest thereon, shall be due and payable on August 25th, 1997.
2. Borrower shall pay to the Note Holder a late charge of 15% of any payment not
received by the Note Holder within 15 days after the payment is due.
3. Payments received for application to this Note shall be applied first to the
payment of late charges, if any, second to the payment of accrued interest at
the rate specified below, if any, third, to accrued interest first specified
above, and the balance applied in reduction of the principal amount hereof.
4. If any payment required by this Note is not paid when due, or if any default
under any Deed of Trust securing this Note occurs, the entire principal amount
outstanding and accrued interest thereon shall at once become due and payable at
the option of the Note Holder (Acceleration); and the indebtedness shall bear
interest at the rate of 21 percent per annum from the date of default. The Note
Holder shall be entitled to collect all reasonable costs and expense of
collection and/or suit, including, but not limited to reasonable attorneys'
fees.
5. Borrower may prepay the principal amount outstanding under this Note, in
whole or in part, at any time without penalty.
Any partial prepayment shall be applied against the principal amount outstanding
and shall not postpone the due date of any subsequent payments or change the
amount of such payments.
================================================================================
No. NTD 81-11-83. PROMISSORY NOTE
Readford Pulbishing, 1743 Wazee St., Denver, CO 80202--(303) 292-2500--12-89
<PAGE>
6. Borrower and all other makers, sureties, guarantors, and endorsers hereby
waive presentment, notice of dishonor and protest, and they hereby agree to any
extensions of time of payment and partial payments before, at, or after
maturity. This Note shall be the joint and several obligation of Borrower and
all other makers, sureties, guarantors and endorsers, and their successors and
assigns.
7. Any notice to Borrower provided for in this Note shall be in writing and
shall be given and be effective upon (1) delivery to Borrower or (2) mailing
such notice by first-class U.S. mail, addressed to Borrower at the Borrower's
address stated below, or to such other address as Borrower may designate by
notice to the Note Holder. Any notice to the note Holder shall be in writing and
shall be given and be effective upon (1) delivery to Note Holder or (2) by
mailing such notice by first-class U.S. mail, to the Note Holder at the address
stated in the first paragraph of this Note, or to such other address as Note
Holder may designate by notice to Borrower.
8. The indebtedness evidenced by this Note is secured by a Deed of Trust dated
July 25, 1996, and until released said Deed of Trust contains additional rights
of the Note Holder. Such rights may cause Acceleration of the indebtedness
evidenced by this Note. Reference is made to said Deed of Trust for such
additional terms. Such Deed of Trust grants rights in the property identified as
follows:
Property address: ______________________________________________________________
-----------------------, Colorado ----------------------------
(CAUTION: SIGN ORIGINAL NOTE ONLY/RETAIN COPY)
IF BORROWER IS NATURAL PERSON(S):
/s/ Kenneth M. Cahill
- --------------------------------------- --------------------------------------
Additional Guarantor Kenneth M. Cahill
/s/ Kenneth M. Cahill as President doing business as /s/ J. Royce Renfrow
- --------------------------------------- --------------------------------------
Additional Guarantor Microtech Medical Secretary
Systems Incorporated
IF BORROWER IS CORPORATION:
ATTEST: Glacier Valley Holding Corporation
--------------------------------------
Name of Corporation
/s/ Cary Carpenter /s/ Darel A. Tiegs
- -------------------------------------- --------------------------------------
Secretary President
(SEAL)
IF BORROWER IS PARTNERSHIP: --------------------------------------
Name of Partnership
by ___________________________________
General Partner
Borrower's address: ____________________________________________________________
------------------------------------------------------------
KEEP THIS NOTE IN A SAFE PLACE. THE ORIGINAL OF THIS NOTE MUST BE EXHIBITED TO
THE PUBLIC TRUSTEE IN ORDER TO RELEASE A DEED OF TRUST SECURING THIS NOTE.
AMENDMENT TO LOAN DOCUMENTS
THIS AMENDMENT TO LOAN DOCUMENTS consisting of a Promissory Note and
Deed of Trust is made this 11th day of October, 1996, by and between JAMES L.
WRIGHT, JR., hereinafter called "Lender", and MICROTECH MEDICAL SYSTEMS, INC.,
hereinafter called "Borrower".
WHEREAS, Glacier Valley Holding Corporation and Lender executed a
certain Promissory Note dated July 25, 1996, with the principal face amount of
Three Hundred Three Thousand Seven Hundred Ninety-Three and No/100 ($303,793.00)
Dollars and James L. Wright, Jr., Payee, Glacier Valley Holding Corporation as
the Maker, and Borrower as Guarator, and
WHEREAS, the Promissory Note was secured by a certain Deed of Trust
dated July 25, 1996, recorded in Book ____ at Page ____ of the Books and Records
of the Clerk and Recorder of El Paso County, Colorado, on __________, and
WHEREAS, copies of the above referenced documents are attached hereto
as Exhibits "A" and "B" respectively, and are incorporated herein by reference,
and
WHEREAS, Borrower and Lender desire to enter into this Amendment in
order to approve the assumption of said Promissory Note by Borrower.
NOW THEREFORE, in consideration of the conditions, covenants and
agreements herein contained for such other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Promissory Note.
(a) Lender hereby approves the assumption of the
Promissory Note by Borrower.
(c) In all other respects, the Promissory Note shall
remain unchanged.
<PAGE>
2. Amendment to Deed of Trust.
(a) Notwithstanding anything in the Deed of Trust to
the contrary, said Deed of Trust is amended to conform to the assumption of the
Promissory Note set forth in Paragraph 1 hereinabove.
(b) The Deed of Trust shall be amended to provide for
partial release thereon upon payment to Lender of Ten Thousand One Hundred
Twenty-Six and 53/100 ($10,126.53) Dollars per lot transferred by Borrower once
the subject real estate is platted in final form as per attached preliminary
plat.
3. Acknowledgement of Prior Glacier Valley Commitment and
Assumption.
(a) The parties agree Lender shall have his pick of
one (1) of the lots currently being platted for a price of Twelve Thousand Five
Hundred and No/100 ($12,500.00) Dollars as per agreement with previous Glacier
Valley Holding Corporation. Mr. Wright must make his choice and pay for said lot
within ten (10) days after notification said lots are staked.
4. Recordation.
(a) The recordation of this Amendment shall not alter
the priority of the lien on the property created by the Deed of Trust referred
to hereinabove.
5. Release.
(a) The execution of this Amendment does not and
shall not constitute a waiver of any rights or remedies to which Lender is
entitled pursuant to the Promissory Note and Deed of Trust except as
specifically set forth herein.
6. Advice of Counsel.
(a) The parties hereto are advised to consult legal
counsel regarding the effect of this document and the signatures hereon
acknowledge that counsel has been consulted or that the parties desire not to so
consult counsel.
7. Binding Effect.
(a) This Amendment shall be binding upon and enure to
the benefit of the parties hereto, their heirs, successors, devisees and
assigns.
2
<PAGE>
8. Multiple Originals.
(a) This Amendment may be executed in multiple
originals, each of which shall be deemed an original and one of which may be
attached to the Promissory Note without having been first recorded.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment the
date and year first above written.
BORROWER:
MICROTECH MEDICAL SYSTEMS, INC.
BY: _________________________________
STATE OF COLORADO
COUNTY OF ________________
Sworn to and subscribed before me this ____ day of October, 1996 by
_____________________________ on behalf of Microtech Medical Systems, Inc.
___________________________________
Notary Public, Colorado
My commission expires:_____________
3
