EXHIBIT 10.11
ASSET PURCHASE AGREEMENT
SUNTEL
&
TELALEASING ENTERPRISES, INC.
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made this 16th day of
April, 1996, by and between Suntel (also known as Suntel Company, Sun Tel, Inc.
and Suntel, Inc.), hereinafter referred to as "Suntel" 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 paytelephones 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
hereinafter are called "Location Agreements"; and
WHEREAS, Suntel is a Maryland general partnership and from time to time
has conducted its business under the names Suntel Company, Sun Tel, Inc. and
Suntel, Inc.; although the selling entity has never been incorporated under the
laws of any jurisdiction; and
WHEREAS Robert A. Watkins and Marc Authier are the general partners of
Suntel and Suntel has no other partners, and
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, subject to the terms and conditions hereinafter set forth, the
Seller desires to sell, and the Purchaser desires to purchase all of Seller's
installed pay telephones consisting of units in and around Baltimore, Maryland
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.
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) 70 installed pay telephones located in and around
Baltimore, Maryland ("Installed Pay telephones"), associated enclosures,
equipment, inventory, tools, parts, supplies, associated Location Agreements
(including approximately 20 where no equipment is yet installed) and all assets
and records directly used in 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, Equipment and Location Agreements. 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 and
associated Location Agreements, a true and correct list of which is attached
hereto as Exhibit 1-a. And also including approximately 20 Location Agreements
without installed pay telephone equipment. All rights, duties, obligations and
liabilities arising out of the Location Agreements and attributable to periods
prior to Closing 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 and obligation 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 and attached to
Exhibit 1-a.
(b) Equipment and Inventory. As described in Exhibit 1-b.
(c) Business Records. As requested by Purchaser, all business records
and copies of financial records directly pertaining to the Assets or necessary
for the operation of the Assets.
(d) Warranties and Licenses. All warranties and licenses and patents,
if any, relating to any of Assets including, but not limited to, computer
software licenses.
(e) Prepaid Expenses and Deposits. All coin in the pay telephones.
(f) 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.
(g) 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.
2. CONSIDERATION.
(a) Purchase Price. As consideration for the transfer and assignment
of the Assets, Purchaser shall pay a total purchase price of $205,000.
(b) Payment at Closing. $149,275 of the purchase price shall be paid
in by wire transfer to Seller's account as directed by Seller at Closing.
Fifteen thousand of the purchase price shall be paid in accordance with and
subject to the contingencies set forth at (P)2(c), below. $40,725 shall be paid
to the Sellers in accordance with and subject to the contingencies at (P)2(d),
below.
(c) General Contingencies. Fifteen thousand dollars of the purchase
price shall be paid on or before July 1, 1996 subject to performance by Seller
of its representations, warranties and covenants herein including but not
limited to payment by Seller of those items specified in paragraphs 3(l), 3(m),
3(o), 3(q), 3(r), 6(b), 11, 12, 14 and 15 of this Agreement. The $15,000 of the
purchase price due July 1, 1996 is security for and subject to deduction for the
items specified in paragraphs 2(d), 3(l), 3(m), 3(o), 3(q), 3(r), 6(b), 11, 12,
14 and 15 of this Agreement.
(d) Baltimore Minor Privilege Permits. The parties are uncertain
about the applicability of, or requirement for, certain Special Privilege
Permits to operate phones encroaching on a public way or easement. Seller hereby
agrees to assume the risk that such permits are not required for any of the
installed phones for which permits have not previously been issued. Buyer wishes
further security for this agreement of Seller. Therefore, $40,725 of the
purchase price shall be paid to Seller in six equal,
quarterly installments of $6,787.50, payable at the end of the quarter, subject
to reduction of $271.50 for each telephone which Buyer is required to remove by
reason of failure to obtain such permit. The reduction to the quarterly payment
shall apply to all phones so removed in the quarter for which payment is made
and to all quarters thereafter. However, the reduction for the quarter in which
the pay telephone is removed shall be prorated based on the number of days in
the quarter for which the phone was installed. For example, if no phones are
required to be removed in the first quarter, four on the first day of the second
quarter, two at the midpoint of the third quarter and none thereafter, the
payments required would be as follows: first quarter = $6,787.50, second quarter
= $5,701.50, third quarter = $5,430.00 and $5,158.50 thereafter.
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 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.
(b) Financial Information. The Seller prior to Closing will furnish
to Purchaser detailed financial information which will verify that the installed
pay telephones are performing substantially in accordance with Exhibit 3-b. To
the best of Seller's knowledge no fact or condition exists, or is contemplated
or threatened, which would 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. There is no unobtained approval of any
third party, except pursuant to release of liens, required as a condition to the
execution and delivery of this Agreement by the Seller or the consummation of
the transactions contemplated hereby. The obligation for the receipt of all 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 due and payable), 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 material 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 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. All available originals, and
where none is available an exact copy, if available, of each Location Agreement
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.
(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,
taken as a whole.
(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 and payable or to become due and payable 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.
Notwithstanding anything to the contrary contained in this Agreement, Seller
shall be responsible and liable for all taxes relating to the Assets or their
use on or before the Closing and Purchaser shall be responsible and liable for
all taxes relating to the Assets and their use after Closing. After the Closing,
each party shall cooperate with the other in dealing with any taxing authority
with respect to the business conducted and the Assets. Purchaser may, at its
sole discretion if Seller has failed to pay such taxes or charges within 10 days
of Seller's receipt of written notice, pay said taxes or charges and (i) give
prompt notice to Seller for reimbursement, such reimbursement to be made within
three (3) business days; or (ii) pay such taxes or charges and deduct same as a
credit against the balance of the purchase price or any other consideration due
to Seller. This provision does not relieve Seller from its obligation to pay
such charges or taxes if Purchaser does not avail itself of the foregoing
remedies.
(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. Alternatively, the
Seller shall pay such commissions as they become due after the Closing for the
period before the Closing. If the Seller fails to pay any such commissions
arising for
periods before the Closing, the Purchaser may pay any such commissions at its
sole discretion if Seller has failed to pay such commissions within 10 days of
Seller's receipt of written notice, pay said commissions and (i) give prompt
notice to Seller for reimbursement, such reimbursement to be made within three
(3) business days; or (ii) pay such commissions and deduct same as a credit
against the balance of the purchase price or any other consideration due to
Seller. This provision does not relieve Seller from its obligation to pay such
charges or taxes if Purchaser does not avail itself of the foregoing remedies.
(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 to the best of Seller's knowledge and belief.
(q) Payment of Telephone Charges. The Seller has paid, or will pay,
on the later of the Closing date or when billed by the local exchange carrier,
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.
Alternatively, the Purchaser may pay any such bills and charges at its sole
discretion if Seller has failed to pay such bills and charges within 10 days of
Seller's receipt of written notice, pay said bills and charges and (i) give
prompt notice to Seller for reimbursement, such reimbursement to be made within
three (3) business days; or (ii) pay such bills and deduct same as a credit
against the balance of the purchase price or any other consideration due to
Seller. This provision does not relieve Seller from its obligation to pay such
charges or taxes if Purchaser does not avail itself of the foregoing remedies.
(r) Authority. Under the laws of the State of Maryland Seller has
full power and authority to own its properties and conduct its business as
conducted and is authorized to own its properties and conduct its business as
conducted. Seller has obtained, and to the extent permitted by law will transfer
to Purchaser, all necessary permits and licences for the operation of the Pay
Telephones. Permit and license fees are not subject to proration under this
Agreement. This Agreement and the transactions contemplated hereby have been
duly and validly authorized and, at closing, indefeasible title to the Assets
will be vested in the Seller and transferred to the Purchaser free and clear of
any claims or encumbrances except for any liens created by Purchaser or
obligations of Purchaser assumed under this Agreement. This Agreement shall,
when executed, be a valid and binding obligation of Seller and its partners in
their individual capacities.
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:
(t) 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 for any commission or finder's fee in connection with the transactions
contemplated by this Agreement.
(u) 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.
(v) 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.
(w) 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.
(x) 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 and authority to own its properties and
conduct its business as conducted.
(y) Corporate Authority. This Agreement and the transactions
contemplated hereby have been duly and validly authorized and Purchaser shall
provide at or prior to Closing the Seller with Certified Resolutions or other
reasonable evidence of authority for the transaction memorialized by this
agreement.
4. ACCESS TO RECORDS/VERIFICATION OF ASSETS.
Prior to Closing Seller 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 will furnish such 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 Paytelephones (70).
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.
6. 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.
(c) Coin. The parties shall poll the phones at Closing and Seller
shall be credited for all coin in the phones at Closing. Buyer shall be entitled
thereafter to remove and retain all coin in the phone at Closing without further
accounting to Seller for such coin.
(d) Local Lines. After Closing Seller will cooperate in the transfer
of local telephone company lines and services to Purchaser, as required.
Purchaser shall use its reasonable best efforts to proceed promptly to effect a
transfer of service to the local exchange carrier and will accomplish all such
transfers no later than April 15, 1996.
(e) 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 Paytelephones to Buyer at
Closing. Seller will cooperate in providing such records in a format and media
convenient to Buyer.
7. CLOSING.
The transactions contemplated by this Agreement shall be consummated
on or before April 16, 1996. Said 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 Bill 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).
(ii) An Assignment and Assumption of the Location Agreements
substantially in the form as set forth at Exhibit 7-a-ii;
(iii) All existing, available originally executed Location
Agreements;
(iv) 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 and the
Escrow agent as set forth and in the manner provided by (P)2.
(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 Paytelephones (both upper housing and lower housing
keys).
(d) Place of Closing. All transactions contemplated herein shall be
consummated at Seller's Maryland 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.
8. CONTINUING RELATIONSHIPS.
The Seller agrees to use its reasonable efforts for a period not to
exceed 10 days from closing to assure an orderly transition and favorable
business relationship between the Purchaser and Seller's existing phone
customers and suppliers. 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. 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. Except for information which Seller has made publicly available or is
otherwise in the public domain, Purchaser shall not use or disclose any
information which Purchaser may have acquired concerning the Seller, or the
business practices of Seller, that are not directly related to the Assets.
Without limiting the foregoing and except for information which Seller has made
publicly available or is otherwise in the public domain, Purchaser shall not use
or divulge to any third person any financial information concerning the Seller,
including, but not limited to, the Financial Statements (except for financial
information directly related to the Installed Paytelephones).
Neither Seller nor any of its partners shall for a period of sixty (60)
months from the date of Closing directly or indirectly, own, manage, operate,
join, control, participate in, advise, or be connected in any manner with any
person, firm, corporation or other entity which is, or becomes engaged in the
operation of Paytelephones or in the solicitation for the installation or sale
the of or of any associated services, including but not limited to long distance
services, to any customers of Seller within 300 miles of Baltimore, Maryland or
any person or entity within such area. This covenant on the part of the Seller,
its officers and shareholders shall be construed as an agreement independent of
any other provisions of this Agreement. The parties hereto agree that this
restrictive covenant may be enforced in law or in equity, including, but not
limited to, injunctive relief against Seller. The parties hereto agree that in
the event of the breach of this restrictive covenant, the Purchaser and related
entities may not have an adequate remedy at law other than an injunction, or
that damages will be difficult to ascertain as the result of such breach and
that, if an injunction is sought by the Purchaser or related entities, Seller
waives any requirement that the Purchaser post any bond and the unsuccessful
party agrees to pay any attorneys' fees and court costs in the event the
successful party receives its requested relief.
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.
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
in all material respects on 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 agree that Seller and Purchaser will not comply with the
requirements of any applicable law dealing with bulk transfers of assets.
Seller agree 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. If the Seller does not pay any such taxes the Purchaser may
pay any such taxes at its sole discretion if Seller has failed to pay such taxes
within 10 days of Seller's receipt of written notice, pay said taxes and (i)
give prompt notice to Seller for reimbursement, such reimbursement to be made
within three (3) business days; or (ii) pay such commissions and deduct same as
a credit against the balance of the purchase price or any other consideration
due to Seller. This provision does not relieve Seller from its obligation to pay
such taxes if Purchaser does not avail itself of the foregoing remedies.
Notwithstanding the foregoing, Purchaser knows of no taxes, sales taxes, excise
taxes, use taxes or other taxes (other than federal income taxes) that will
become due as a result of the transactions contemplated by this Agreement.
Purchaser agrees to indemnify and hold Seller harmless from and
against any and all sales, use, property, income or other taxes due as a result
of Purchaser's use or operation of the Assets on and after the Closing Date.
13. ADDITIONAL INSTRUMENTS.
The Seller agree 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.
15. INDEMNIFICATION.
(a) Seller. 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). In no event shall Seller's aggregate
obligation under this section, 15(a), exceed the purchase price paid to it under
section 2 hereof.
(b) Purchaser. The Purchaser agrees to indemnify the Seller fully and
hold the Seller harmless from and against and in respect of all demands,
actions, or causes of action, assessments, losses, damages, liabilities,
judgements, costs and reasonable expenses, including interest and reasonable
attorney fees) asserted against or incurred by the Seller arising out of a
breach of any representation, warranty or agreement of the Purchaser contained
in this Agreement or in any Exhibit hereto or arising out of any act or omission
of the Purchaser after the Closing Date (except with respect of liabilities
specifically retained by the Seller).
(c) De Minimus Recovery Limitation. Notwithstanding the provisions of
sections 15(a) and 15(b) no party shall be liable for any indemnification or
breach of representation or warranty until the amount of all damages or losses
exceeds $5,000 in the aggregate. The limitations of this section shall not apply
to any operating liabilities or revenues or taxes. Once the $5,000 limit is
exceeded, the party liable shall be liable for the entire amount of such loss or
damage, including the $5,000 threshold amount.
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
one year 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,
except as otherwise required by this Agreement, or applicable law.
(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, subject to the provisions of
section 4 hereof.
(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 five days after posting by certified United States Mail, with
postage prepaid:
(1) If to Purchaser:
Davel Communications Group, Inc.
601 West Morgan
Jacksonville, IL 62650
Attn: T.C. Rammelkamp, Jr.
(2) If to Seller:
Suntel
5921 Moravia Park Dr.
Baltimore, MD 21206
or to such other person or address as a party 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 Maryland 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.
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
__________________________________
By: Ed Turnipseed
Its: President
SELLER:
SUNTEL
__________________________________
Robert A. Watkins
__________________________________
Marc Authier