Exhibit 10.10
ASSET PURCHASE AGREEMENT
CAPITAL PAY PHONE GROUP, LLC
&
TELALEASING ENTERPRISES, INC.
THIS ASSET PURCHASE AGREEMENT ("Agreement") is effective on the first day
of January, 1996, by and between Capital Payphones Group LLC, a North Carolina
Limited Liability Company (hereinafter referred to as "Capital" or "Seller") and
Telaleasing Enterprises, Inc. (hereinafter referred to as "Telaleasing," "TEI,"
"Purchaser" or "Buyer").
W I T N E S S E T H,
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WHEREAS, the Seller owns and operates pay telephones and related service
facilities pursuant to agreements which are sometimes styled "Public
Communication Location Agreements," "Public Telephone Equipment and Service
Contracts," "Paytelephone Agreements," Coin Operated Telephone Equipment and
Service Contracts," "Contracts," "Payphone Location Agreements," "Royalty
Agreements," "Vending Agreements," "Leases," or other similar names and all of
which hereinafter are called "Location Agreements"; and
WHEREAS, Capital is a North Carolina Limited Liability Company owned 100%
by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇'▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇. The designated Managers of Capital under the laws of South Carolina are
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ either one of whom alone is authorized to
act as agent for Capital in this transaction.
WHEREAS, Purchaser is an Illinois Corporation, solely owned by Davel
Communications Group, Inc. ("Davel").
WHEREAS, Purchaser is in the business of owning and operating pay
telephones and providing associated services; and
WHEREAS, Seller and Davel Communications Group, Inc. entered into a Letter
of Intent dated December 19, 1995 which Letter was assigned to Davel's wholly
owned subsidiary, Telaleasing Enterprises, Inc. Said Letter of Intent
contemplates the transaction memorialized by this Agreement. Any rights, duties
and obligations of Davel, Telaleasing or Capital created by, or arising out of,
said Letter of Intent are terminated and void as of the date of this Agreement.
This Agreement shall be the sole expression of the intent of the parties, their
rights duties and obligations with respect to all matters arising out of the
transaction contemplated by either the Letter of Intent or this Agreement.
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Seller desires to sell, and the Purchaser desires to purchase 103 installed pay
telephones from Seller together with associated Location Agreements, equipment,
contracts and inventory.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the parties agree as follows:
1. ASSETS TO BE PURCHASED.
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Subject to the terms and conditions set forth herein, Purchaser agrees
to purchase and acquire from the Seller, and the Seller agrees to sell,
transfer, assign and convey to the Purchaser, free and clear of any and all
liens and encumbrances (excepting obligations imposed by the Location Agreements
which shall be assumed by Purchaser), 103 installed pay telephones located in
North Carolina (all of said units are hereinafter referred to as "Installed Pay
Telephones"), certain uninstalled, complete pay telephone sets, associated
enclosures, equipment, inventory, tools, parts, supplies, associated Location
Agreements and all assets and records related to the operation of the Installed
Pay Telephones. All of said assets, including the Installed Pay telephones, may
be collectively referred to herein as the "Assets" and are more fully described
below. No liabilities are assumed by the Purchaser except as explicitly
described in this Agreement. The Assets include, but are not limited to, the
following:
(a) Installed Pay Telephones and Equipment. All equipment, communications
equipment, pay telephones, enclosures, masts, cables, wiring, electrical wiring,
conduit, slabs and related property used in connection with, or located at, all
of Seller's Installed Pay telephones, a true and correct list of which is
attached hereto as Exhibit 1-a.
(b) Location Agreements. All Location Agreements associated with the
Installed Pay telephones. All rights, duties, obligations and liabilities
arising out of the Location Agreements and attributable to periods prior to
"Closing" (as hereinafter defined) shall be retained by Seller and all such
rights, duties, obligations and liabilities attributable to periods after
Closing shall be assumed by and be the property of the Purchaser. A few Location
Agreements may not be memorialized by a writing but are nonetheless assigned by
this Agreement. All written Location Agreements are listed in Exhibit 1-b true
and exact copies of all such Location Agreements are attached to Exhibit 1(b).
(c) Inventory. Inventory as more fully described in Exhibit 1-c.
(d) Tools and Equipment. Tools, furnishings and equipment, if any, used in
the installation, maintenance and operation of the pay telephones as more fully
described in Exhibit 1-d.
(e) Business Records. All business records and copies of financial records
pertaining to the Assets and the operation of the Assets, including, without
limitation, the following: sales records; customer lists; correspondence with
customers; agency letters; correspondence and agreements with local exchange
carriers, interexchange carriers, and alternate operator services, including
bills and commission statements; records pertaining to suppliers; insurance
policies; insurance policy data; service records; advertising materials;
computer access codes and passwords. Seller will cooperate in providing such
records in a format and media convenient to Buyer. Seller may retain copies of
any such records.
(f) Warranties and Licenses. All warranties and licenses and patents, if
any, relating to any of the Assets including, but not limited to, computer
software licenses necessary to the operation of the Installed Pay Telephones.
(g) Prepaid Expenses and Deposits. All prepaid expenses, utility deposits,
security deposits, lease deposits and insurance premiums and AOS commissions
relating to the Assets.
(h) Advertising Agreements. All Advertising Agreements whether written or
oral that provide for income to Seller resulting from advertising revenue
produced from booths, enclosures or other sources.
(i) Accounts Receivable. All accounts receivable attributable to periods
after Closing. Seller shall provide such notification to payers regarding
payment for amounts attributable to post Closing periods as Purchaser shall
reasonably request. All accounts receivable attributable to periods prior to
Closing shall remain the property of Seller and are not conveyed hereby.
(j) Revenues. All revenues attributable to periods subsequent to Closing
less expenses and charges attributable to such periods required by this
Agreement to be paid prior to Closing.
(k) Goodwill. The Seller shall assign to Purchaser at Closing all of
Seller's interest in the business telephone numbers of Seller as set forth at
Exhibit 1-k.
2. CONSIDERATION.
(a) Purchase Price. As consideration for the transfer and assignment
of the Assets, Purchaser shall pay a total purchase price of $$$$$. The purchase
price shall be allocated among the assets in accordance with Exhibit 2a. As
required by applicable law and regulation, the parties agree that after Closing
each shall file an Asset Acquisition Statement prepared pursuant to I.R.C.
(S)1060 on IRS Form 8594 consistent with said allocation.
(b) Payment. Unless subject to modification as provided at (P)6(e)
$$$$$ of the purchase price shall be paid at Closing by cashiers check,
certified check, or wire transfer to the Seller as the Seller shall direct. An
additional $$$$$, unless subject to modification as provided by (P)6(e), of the
purchase price shall be paid at Closing into escrow and held and paid as set
forth at (P)8. The escrowed amount of $$$$$, or $$$$$$ as the case may be, is
held to secure the payment by Seller of those items specified in paragraphs,
3(a), 3(b), 3(c), 3(g), 3(h), 3(i), 3(l), 3(m), 3(n), 3(o), 3(q), 6(b), 6(c),
6(e), 11, 12, 14 and 15 of this Agreement.
3. REPRESENTATIONS AND WARRANTIES.
Seller's Representations and Warranties
The Seller represents and warrants to the Purchaser that the following
are true and correct as of the date hereof, and will be true and correct on the
"Closing Date" (as hereafter defined) except as Seller may notify Purchaser
prior to Closing in a signed writing. Any such notification prior to Closing
which modifies any of the following representations and warranties shall, at the
sole option of Purchaser, result in termination of this Agreement without any
liability for such termination to Seller:
(a) Taxes. No claim or liability is pending or has been assessed or
asserted, or has been threatened against the Seller in connection with any taxes
which are, or may, become a lien against the Assets. Seller shall provide such
reasonable evidence as Seller may require in support of the warranty made by
this paragraph.
(b) Financial Information. The financial information regarding the
Assets and business of Seller and all reports of revenues and expenses provided
to the Purchaser are true, correct and complete and present fairly and
accurately the true financial position, condition and results of operations of
the business of Seller for the periods indicated. Such financial information has
been prepared in accordance with generally accepted accounting principles on a
basis consistently applied. To the best of Seller's knowledge no fact or
condition exists, or is contemplated or threatened, which might have a material
adverse effect on the business of Seller or the Assets.
(c) No Finders or Brokers. No agent, broker or other person acting
pursuant to the Seller' authority is entitled to make any claim against the
Purchaser or the Seller for any commission or finder's fee in connection with
the transactions contemplated by this Agreement.
(d) Approval of Government Agencies. No approval of any governmental
or administrative agency or authority is required as a condition to the
execution and delivery of this Agreement by the Seller or its consummation of
the transactions contemplated hereby.
(e) Approval of Third Parties. No approval of any third party is
required as a condition to the execution and delivery of this Agreement by the
Seller or its consummation of the
transactions contemplated hereby. The obligation for the receipt of any such
approvals shall rest solely with Seller and is a condition precedent to Closing
and payment.
(f) No Prohibition Against Purchaser. The Seller is not a party to,
or otherwise subject to, any agreement, indenture, instrument, lease, judgment
or any other decree or any other regulation or demand of any government, bureau,
board or agency which would prohibit the consummation of the transaction
contemplated by his Agreement or would otherwise be breached or impaired by such
consummation.
(g) Title to Assets. The Seller is the owner of all the Assets and
will convey the Assets to the Purchaser free and clear of all mortgages,
pledges, liens (including liens for taxes), encumbrances, charges, claims, title
retention agreements or other security interests or arrangements except as
specifically provided herein. Purchaser shall assume no responsibility for any
liability, claim or obligation of Seller arising prior to the date of Closing
and otherwise only as provided in this Agreement.
(h) Litigation. Seller has operated the Assets in compliance with all
applicable laws, rules and regulations except as may be immaterial to this
transaction. There are no actions, lawsuits or proceedings pending or
threatened against the Seller in law or in equity, or before any governmental
agency, that if determined adversely to the Seller would materially affect the
Assets being sold hereunder or the business of Seller or that would bring into
question the validity of this Agreement or any action taken or to be taken in
accordance with or in connection with this Agreement.
(i) Contractual Interests. The Location Agreements are in full force
and effect. To the best of Seller's knowledge there are no existing defaults
under these agreements on the part of Seller, which are, individually or in the
aggregate, material to the operation of the Assets. The original of each
Location Agreement, or a copy where no original is available, as scheduled at
Exhibit 1-b and associated documents have been furnished to the Purchaser. The
Seller is not a party to any other material contract, agreement or understanding
(whether oral or written) relating to the Assets or Location Agreements which
has not been disclosed in writing to the Purchaser.
(j) Fixed Assets and Inventory. The Assets conveyed by this Agreement
are conveyed in an "as is" condition and no warranty as to condition or fitness
is made except that Seller warrants that it has no knowledge of any condition or
state of the Assets which would have a material adverse effect on the Assets.
(k) Employment Agreements. Seller has no employment or consulting
contracts relating to the Assets which will cause any lien to attach or charge
to be imposed on or against the Assets.
(l) Location Agreements. Seller warrants that as of the execution of
this Agreement, it has no knowledge of any claims existing or contemplated
against Seller whatsoever by the parties to the Location Agreements. Further,
Seller warrants that it has no knowledge of any claims existing or contemplated
by third parties relating to the use or operation of the Assets.
(m) Payment of All Taxes. The Seller has paid, or will pay, on or
prior to the Closing Date, all sales, excise, use, income or other taxes or
similar charges due or to become due by Seller for all periods prior to Closing,
the non-payment of which may subject Purchaser to liability, jointly or
severally, in whole or in part for such amounts.
(n) Noncancelability of Location Agreements. The Location Agreements
are not terminable due to the execution of this Agreement or the performance of
the terms hereof.
(o) Payment of All Commissions. The Seller has paid, or will pay, on
or prior to the Closing Date, all commissions due from Seller or attributable to
periods prior to Closing under all Location Agreements.
(p) Installed Pay telephone Keys. The Seller has delivered to the
Purchaser, on or prior to the Closing Date, all keys to the Installed Pay
telephones, including keys to the upper housing and lower housing, and there are
no other keys or copies thereof held by any other parties, including employees
of Seller.
(q) Payment of Telephone Charges. The Seller has paid, or will pay,
on or prior to the Closing Date all telephone bills and charges due from the
Seller to the local exchange carrier, any interexchange carriers or to any other
entity or party for services provided for all periods prior to Closing and
attributable to the Assets.
(r) Good Standing. Seller warrants that it has the legal capacity and
authority to own and transfer property and to conduct business in all
jurisdictions applicable to the transactions contemplated by this Agreement.
Seller is in good standing in North Carolina. At or before Closing, Seller will
provide Buyer a Certificate and Resolution in substantially the form attached
hereto at Exhibit 3(r) evidencing Seller's authority for the transactions
contemplated by this Agreement.
Purchaser's Representations and Warranties
The Purchaser represents and warrants to the Seller that the following are
true and correct as of the date hereof, and will be true and correct on the
Closing Date except as Purchaser may notify Seller prior to Closing in a signed
writing. Any such notification prior to Closing which modifies any of the
following representations and warranties shall, at the sole option of Seller,
result in termination of this Agreement without any liability for such
termination to Purchaser:
(s) No Finders or Brokers. No agent, broker or other person acting
pursuant to the Purchaser's authority is entitled to make any claim against the
Seller or the Purchaser for any commission or finder's fee in connection with
the transactions contemplated by this Agreement.
(t) Approval of Government Agencies. No approval of any governmental
or administrative agency or authority is required as a condition to the
execution and delivery of this Agreement by the Purchaser or its consummation of
the transactions contemplated hereby.
(u) Approval of Third Parties. No approval of any third party is
required as a condition to the execution and delivery of this Agreement by the
Purchaser or its consummation of the transactions contemplated hereby. The
obligation for the receipt of any such approvals shall rest solely with Seller
and is a condition precedent to Closing and payment.
(v) No Prohibition Against Purchaser. The Purchaser is not a party
to, or otherwise subject to, any agreement, indenture, instrument, lease,
judgment or any other decree or any other regulation or demand of any
government, bureau, board or agency which would prohibit the consummation of the
transactions contemplated by his Agreement or would otherwise be breached or
impaired by such consummation.
(w) Corporate Standing. Telaleasing Enterprises, Inc. is a
corporation duly organized and validly existing in good standing under the laws
of the State of Illinois with full power an authority to own its properties and
conduct its business as conducted.
(x) Corporate Authority. This Agreement and the transactions
contemplated hereby have been duly and validly authorized by Purchaser.
4. ACCESS TO RECORDS/VERIFICATION OF ASSETS.
Seller has and will permit representatives of Purchaser full access to
all the property, books, contracts, documents, records, reports, and data bases
of Seller relating to the Assets and shall furnish such additional information
concerning same as Purchaser or its agents may reasonably request. Purchaser and
Seller agree that the basis for the establishment of the purchase price is the
financial statements and accounting information previously provided and the
number of Installed Pay telephones. If there is substantial deviation from these
previous representations, the Purchaser may elect to terminate this Agreement
without penalty or seek an adjusted purchase price from Seller prior to Closing.
5. DUE DILIGENCE.
This Agreement shall be binding upon the parties effective as of the
date of execution subject to verification, by the Purchaser, from information,
records, documents and other items provided by the Seller sufficient to verify
the factual basis for the warranties and representations made to it by the
Seller herein. In the event during such review period information is made
available to the Purchaser which is materially inconsistent with the
representations or warranties contained herein, then Purchaser may deliver
written notice prior to Closing terminating this Agreement without penalty or
further obligation.
6. PRE-CLOSING TRANSITION MATTERS.
(a) Implementation of Change With Owners. After Closing Seller shall
fully cooperate with Purchaser, but only as specifically requested from time to
time, in advising parties to the Location Agreements that the business of Seller
is under new management as of the date of Closing and to advise them as to the
manner in which to place requests for service in the future.
(b) Non-Coin Long Distance. Seller is entitled to receive
compensation for long distance traffic from 0+ and 0- traffic from Operator
Service Providers. All such commissions, payments or other monies due and owing
Seller attributable to periods prior to Closing shall be the property of Seller
and shall be properly paid to Seller. This and any other property of Seller
which may come into Purchaser's possession shall be promptly delivered by
Purchaser to Seller. All such commissions, payments or other monies due and
owing Seller attributable to periods after Closing shall be the property of
Purchaser and shall be properly payable to Purchaser. This and any other
property of Purchaser which may come into Seller's possession shall be promptly
delivered by Seller to Purchaser. After Closing Seller shall provide such
notification to payors regarding payment for amounts attributable to post
Closing periods as Purchaser shall reasonably request. Seller agrees to assist
as required in the implementation of any change of Long Distance provider
requested by Purchaser after Closing Date subject to compliance with applicable
regulations.
(d) Coin. The parties shall allocate all pay telephone coin revenues
by assigning to Buyer all uncollected coin in the pay telephone boxes on the
Closing Date to Purchaser. Seller shall not accelerate or otherwise alter its
normal collection practices to take advantage of this method of allocation.
(c) Local Lines. After Closing Seller will cooperate in the transfer
of local telephone company lines and services to Purchaser, as required.
(d) Records and Rate Files. Seller shall cooperate with Purchaser in
making available all rate files, databases and similar information prior to
Closing to facilitate the transfer of the Installed Pay telephones to Buyer at
Closing. Seller will cooperate in providing such records in a format and media
convenient to Buyer.
(e) Renew Month to Month Contracts. Location Agreements with respect
to 20 Pay Telephones identified by reference to the Assigned Contract Numbers at
Exhibit 1(b) will, or have, expired prior to December 31, 1996, to wit: #▇▇, #▇,
#▇▇, #▇▇, #▇▇, #▇, #▇▇, #▇▇, #41, #48, #49, #▇▇, #▇▇, #▇▇,
#▇▇, #▇▇, #▇▇, #▇▇, #▇▇ and #105. Seller Agrees hereby to obtain new Location
Contracts with a minimum term of at least five years for each of the above
designated locations prior to Closing. If Seller has not obtained the required
renewals prior to Closing the additional sum of $1,000 per each Location for
which a renewal has not been obtained prior to Closing, up to $20,000, shall be
withheld from sums otherwise due to Seller at Closing and paid into escrow by
Buyer until such renewals are obtained and presented by Seller to Buyer. To the
extent that Seller is unable to obtain the required renewals on or before
February 1, 1996, the Purchase Price shall be reduced by $1,0000 for each pay
telephone location for which no renewal is obtained and such reduction shall be
refunded to Buyer from the escrowed funds.
7. CLOSING.
The transactions contemplated by this Agreement shall be consummated
effective January 1, 1995 except as accelerated or extended by mutual, written
agreement of the parties. Said date or accelerated or extended date shall be
known herein as the "Closing Date" or the "Closing." The Seller and the
Purchaser shall take the following actions on the Closing Date:
(a) The Seller shall deliver to the Purchaser the following fully
executed documents as a condition precedent to payment:
(i) A ▇▇▇▇ of Sale substantially in the form as set
forth at Exhibit 7-a-i transferring ownership of the Assets
except for those items conveyed pursuant to (P) 7(a)(ii)
and (P) 7(a)(iii)
(ii) An Assignment of the Location Agreements
substantially in the form as set forth at Exhibit 7-a-ii;
(iii) All documents of Title relating to any
separately titled property, free and clear of liens and
evidencing transfer of ownership to Purchaser;
(iv) All originally executed Location Agreements;
(v) Such other documents as may be reasonably
required to consummate and evidence the transactions and
transfers contemplated by this Agreement as may be
requested by Buyer.
(b) The Purchaser shall pay the sums provided to Seller as set forth
and in the manner provided by (P)2, (P)6(e) and (P)18.
(c) Transfer of Assets. On or prior to Closing Seller shall deliver
all of the Assets to Purchaser. Seller shall deliver all keys (and any copies
thereof) to all Installed Pay telephones (both upper housing and lower housing
keys).
(d) Place of Closing. All transactions contemplated herein shall be
consummated at Buyer's Tampa, Florida office or at such other places the parties
may mutually determine in writing.
(e) Exhibits. Any Exhibits not provided at the time of execution of
this Agreement shall be provided at or prior to Closing as a condition precedent
to Closing.
8. CONTINUING RELATIONSHIPS.
The Seller agrees to use its reasonable efforts for a period not to
exceed 90 days from Closing to assure an orderly transition and favorable
business relationship between the Purchaser and Seller's existing phone
customers and suppliers. Seller shall provide adequate training of personnel on
the procedures of Seller's business. The Seller shall not, from and after the
Closing Date, solicit orders from such customers. In addition, the Seller
shall, from and after such time, direct to the Purchaser all inquiries from such
customers and other persons regarding the business of Seller in South Carolina
and North Carolina. The Seller shall, from and after the Closing Date, maintain
the absolute confidentiality of all matters relating to the Assets and business
for three (3) years following the Closing Date.
9. CONDUCT OF BUSINESS.
From the date of this Agreement through the Closing Date, the Seller
shall:
(a) not enter into any material or unusual contracts affecting the
business of Seller without the prior written consent of the Purchaser;
(b) not create any security interests in any of the Assets.
(c) continue to operate the business in a routine and regular fashion,
not attempting to manipulate collections or payment to its advantage, including
but not limited to coin collection from the Installed Pay telephones, commission
payments to owners or payment of telephone company charges.
10. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.
The obligations of the Purchaser to acquire the Assets in accordance
with the terms of this Agreement and the obligations of Seller to sell the
Assets shall be subject to the fulfillment on, or prior to, the Closing Date of
each of the following conditions:
(a) Accuracy of Representations. All representations and warranties
of the Purchaser and Seller contained in this Agreement, and Exhibits hereto or
otherwise made in writing pursuant to this Agreement shall be true and correct
on as of the Closing Date with the same force and effect as though made on and
as of the Closing Date.
(b) Performance of Obligations. The Seller and Purchaser shall have
performed and complied with all of the obligations and conditions required by
this Agreement to be performed or complied with by Seller and Purchaser on or
prior to the Closing Date.
(c) No Change of Condition and Due Diligence. The Assets shall not
have been adversely affected in any way, directly or indirectly, which would
affect Purchaser's operation or use of the Assets.
11. BULK TRANSFERS.
The parties believe that the transactions contemplated by this
Agreement are not subject to the bulk transfer laws and agree that Seller and
Purchaser will not comply with the requirements of any applicable law dealing
with the bulk transfer of assets. Seller agrees to indemnify and hold Purchaser
harmless from any loss, expenses, costs (including legal fees and expenses)
incurred by Purchaser from failure to so comply.
12. COMPLIANCE WITH TAX PROVISIONS.
Seller agrees to indemnify and hold Purchaser harmless from and
against any and all sales, excise, use, income or other taxes due as a result of
this transaction and to pay such taxes, if any, when due.
13. ADDITIONAL INSTRUMENTS.
The Seller agrees from time to time, upon the request of the
Purchaser, to execute and deliver to the Purchaser such other instruments of
sale, transfer, assignment and conveyance and to take such other action as the
Purchaser may reasonably request to effectively vest ownership in the Purchaser
of all of the Assets sold, transferred, assigned and conveyed hereunder.
14. EXPENSES.
Each party hereto shall pay all expenses incurred by it in connection
with the negotiation, execution and performance of this Agreement, whether or
not the transactions contemplated herein are consummated, including the fees and
expenses of the counsel and accountants of each. The Seller and Purchaser shall
prorate as of the Closing Date all personal property taxes which may be assessed
or levied on the Assets.
15. INDEMNIFICATION.
The Seller agrees to indemnify the Purchaser fully and hold the
purchaser harmless from and against and in respect of all demands, actions or
causes of action, assessments, losses, damages, liabilities, judgments, costs
and reasonable expenses (including interest and reasonable attorneys' fees)
asserted against or incurred by the Purchaser arising out of a breach of any
representation, warranty or agreement of the Seller contained in this Agreement
or in any Exhibit hereto or arising out of any act or omission of the Seller
prior to the Closing Date (except with respect of liabilities specifically
assumed by the Purchaser).
16. SURVIVAL OF REPRESENTATION.
All representations, warranties and agreements contained in this
Agreement or any Exhibit hereto or made pursuant of the transactions
contemplated by this Agreement shall survive the Closing Date for a period of
five years from the Closing Date.
17. MISCELLANEOUS PROVISIONS.
(a) Publicity. All notices to third parties and all other publicity
concerning the transaction contemplated by this Agreement shall be planned and
coordinated by Purchaser. Seller agrees not to make any public disclosure
regarding this transaction without the prior written approval of Purchaser.
(b) Effect of Headings. The subject headings of the articles,
sections and paragraphs of this Agreement are included for purposes of
convenience only and shall not affect the construction or interpretation of any
of its provisions.
(c) Counterparts. This Agreement may be executed simultaneously in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(d) Waiver of Compliance. Any failure of Purchaser, on the one hand,
or Seller, on the other hand, to comply with any obligation, covenant, agreement
or condition herein may be expressly waived in writing. Failure to insist upon
strict compliance with such obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
(e) Availability of Equitable Remedies. Since a breach of various
provisions of this Agreement could not adequately be compensated by money
damages, Seller or Purchaser, as the case may be, may obtain, in addition to any
other remedy available to it, an injunction restraining such breach and specific
performance of such provisions of this Agreement without proof of loss or
imminent loss, and no bond or other security shall be required in connection
therewith.
(f) Parties in Interest. Nothing in this Agreement, whether express
or implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any person other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third person to any party to this
Agreement, nor shall any provision give any third person any right of
subrogation or action over or against any party to this Agreement.
(g) Binding on Successors. This Agreement shall be binding on, and
inure to the benefit of, the parties to it and their respective heirs, legal
representatives and successors.
(h) Recovery of Litigation Costs. If any legal action, arbitration or
other proceeding is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with any
of the provisions of this Agreement, the party substantially prevailing shall be
entitled to recover reasonable attorneys' fees and other costs incurred in that
action or proceeding, whether or not such action is brought to judgment, in
addition to any other relief to which it may be entitled.
(i) Full Disclosure. No representation or warranty made by any party
hereto and no certificate or document furnished or to be furnished to any party
hereto pursuant to this Agreement contains or will contain any untrue statement
of a material fact or fails to contain information necessary to make the
statements contained therein not misleading.
(j) Exhibits. The exhibits referred to herein shall be attached
hereto and are a part of this Agreement as if fully set forth herein.
(k) Notices. All notices, requests, demands or other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been delivered on the third day after posting by certified United States Mail,
with postage prepaid:
(1) If to Purchaser: Telaleasing Enterprises, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇
With a copy to: Davel Communications Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
(2) If to Seller: Capital Pay Phone Group, LLC.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
or to such other person or address as Purchaser shall furnish to the other
parties hereto in writing.
(l) Governing Law and Arbitration. This Agreement shall be governed
and construed in accordance with the law of the State of North Carolina and its
courts shall have jurisdiction of any matters arising hereunder. Any dispute
arising out of this Agreement shall be submitted by the parties for arbitration
in accordance with the rules and procedures of the American Arbitration
Association.
(m) Entire Agreement. This Agreement, including the exhibits and
other documents referred to herein which form a part hereof, embodies the entire
agreement and understanding or the parties hereto in respect to the subject
matter contained herein. There are no restrictions, promises, warranties,
covenants or understandings, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by the parties hereto.
(n) Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
(o) Non-Disclosure. Seller agrees that it shall not negotiate for the
sale, trade or other transfer of any of the assets which are the subject of this
Agreement after the execution of this Agreement and prior to the earlier of
termination of the Agreement or Closing.
18. ESCROW PROVISIONS.
On the date of Closing the amount determined in accordance with the
provisions of (P) 6(e) and (P) 2(b) shall be paid into escrow account number
▇▇▇▇▇▇▇ at Central Carolina Bank, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ to
secure payment of the items set forth at paragraphs 3(a), 3(b), 3(c), 3(g),
3(h), 3(i), 3(l), 3(m), 3(n), 3(o), 3(q), 6(b), 6(c), 6(e), 11, 12, 14 and 15 of
this Agreement. Upon receipt of renewed Location Contracts as required by
(P)6(e), $1,000 for each Pay Telephone renewed shall be released from Escrow, up
to $20,000 upon joint certification by the parties to the escrow agent of such
renewal. The escrow Agreement shall provide that both parties will submit full
accountings to each other within 90 days of Closing at which time, upon written
direction to the escrow agent signed by both parties, the escrow agent shall
disburse all funds in accordance with said written direction. The terms of the
Escrow Agreement shall be substantially as set forth at Exhibit 18.
19. GUARANTY.
In accordance with the terms of the Guaranties attached hereto at Exhibits
19(1) - 19(4), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇'▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇ being all the owners or shareholders of Seller hereby fully
guaranty, individually and severally, the performance of this Agreement in all
of its particulars by Seller.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first above written.
PURCHASER:
TELALEASING
ENTERPRISES, INC., an Illinois Corporation
___________________________
▇▇▇▇▇ ▇▇▇▇, Chairman
ATTEST:
___________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Assistant Secretary
Seller:
CAPITAL PAY PHONE
GROUP, LLC
____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Manager