1
EXHIBIT 10.20
ASSET PURCHASE AGREEMENT
BETWEEN
LET'S TALK CELLULAR OF AMERICA, INC.
AND
NORTH POINT CELLULAR, INC.
AND
MICHAEL WEINSTOCK
AND
MARC GREENE
AUGUST 31, 1996
2
THIS AGREEMENT, dated as of August 31, 1996, is entered into by and
among Let's Talk Cellular of America, Inc., a Florida corporation having its
principal offices at 5200 N.W. 77th Court, Miami, Florida 33166 (the "Buyer"),
and North Point Cellular, Inc., a Georgia corporation having its principal
offices at 990 Holcomb Bridge Road, Suite 2, Roswell, Georgia 30076 (the
"Seller"), and Michael Weinstock and Marc Greene (each individually, a
"Shareholder" and together, the "Shareholders"; and the Shareholders and the
Seller are collectively, the "Selling Parties" and each individually, a "Selling
Party").
ARTICLE 1
PURCHASE OF ASSETS; ASSUMPTION OF LIABILITIES
1.1 Purchase of Assets. Subject to the terms and conditions set forth
in this Agreement, the Seller agrees to sell, assign and transfer to the Buyer,
and the Buyer agrees to purchase and acquire from the Seller on the Closing
Date, all of the assets of the Seller, except for the Excluded Assets
(collectively, the "Purchased Assets"), including, without limitation, the
assets of the Seller set forth on Schedule 1.1 hereto.
1.2 Excluded Assets. The assets of the Seller set forth on Schedule
1.2 hereto shall not be transferred to the Buyer and are excluded from this
Agreement (collectively, the "Excluded Assets").
1.3 Assumption of Liabilities. The Buyer agrees to assume and
discharge only the liabilities and obligations of the Seller set forth on
Schedule 1.3 hereto (collectively, the "Assumed Liabilities").
1.4 Excluded Liabilities. All other liabilities of the Seller (the
"Excluded Liabilities"), including, without limitation, the liabilities set
forth on Schedule 1.4 hereto, shall not be assumed by the Buyer and shall be
paid by the Seller.
ARTICLE 2
CLOSING MATTERS
2.1 Date and Time. The closing of the transactions contemplated hereby
(the "Closing") shall take place at the offices of Weinstock & Scavo, P.C., at
10:00 a.m. on the date hereof (the "Closing Date").
2.2 Closing. At the Closing, and on the basis of the representations,
warranties, covenants and agreements made herein and in the schedules hereto and
in the certificates and other instruments delivered pursuant hereto, and subject
to the terms and conditions hereof:
(a) Transfer of Purchased Assets. The Seller shall transfer,
convey, sell, assign and deliver to the Buyer all of the Seller's right, title
and interest in the Purchased Assets by delivering to the Buyer bills of sale,
assignments, and documents of conveyance, each duly executed and acknowledged by
the Seller, and such other good and sufficient instruments of
3
transfer and conveyance as shall be effective to vest in the Buyer all of the
Seller's right, title and interest in the Purchased Assets.
(b) Purchase Price. The Buyer shall pay to the Seller the
purchase price (the "Purchase Price") for the Purchased Assets by paying to the
Seller the sum of $250,000.00 in cash or other immediately available funds, as
adjusted pursuant to Section 2.4.
2.3 Deliveries at Closing. At the Closing, the following documents
shall be delivered:
(a) Assignments. The Seller shall execute and deliver to the
Buyer the following assignments:
(i) an assignment of the Airtouch Agreement (as
hereinafter defined), in the form attached hereto as
Exhibit 2.3(a)(i) (the "Airtouch Assignment"),
(ii) an assignment of each Lease (as hereinafter defined),
substantially in the form attached hereto as Exhibit
2.3(a)(ii),
(iii) an assignment of the Advertising Agreement (as
hereinafter defined), substantially in the form
attached hereto as Exhibit 2.3(a)(iii); and
(iv) an assignment covering each Customer Activation
Agreement (as hereinafter defined) in the form attached
hereto as Exhibit 2.3(a)(iv).
(b) Bill of Sale. The Seller shall execute and deliver to the
Buyer a bill of sale in the form attached hereto as Exhibit 2.3(b) (the "Bill of
Sale").
(c) [Intentionally Omitted]
(d) Legal Opinion. Legal counsel for the Selling Parties shall
deliver a legal opinion to the Buyer in substantially the form attached hereto
as Exhibit 2.3(d).
(e) Employee Records. The Seller shall deliver to the Buyer all
personnel records in the Seller's possession.
(f) Secretary's Certificate. The Seller shall execute and
deliver to the Buyer a Secretary's Certificate, in the form attached hereto as
Exhibit 2.3(f).
(g) Name Change by the Seller. The Seller shall deliver to
Buyer, prior to the earlier of (x) the date 30 days from the date hereof and (y)
the date of the release of funds from escrow provided for in the Consulting
Agreement, evidence that it has changed its corporate name to a name that is
dissimilar to, and not a variation of, North Point Cellular, Inc.
(h) Affidavit of Michael Weinstock. Michael Weinstock shall
execute and deliver to the Buyer an affidavit, in the form attached hereto as
Exhibit 2.3(h).
2
4
(i) Customer Activation Agreements. The Seller shall deliver to
the Buyer substantially all copies and originals of the Customer Activation
Agreements.
(j) Consulting Agreements. The Seller shall execute and deliver
to the Buyer a consulting agreement in the form attached hereto as Exhibit
2.3(j) (the "Consulting Agreement").
(k) Advertising Agreement. The Seller shall deliver to the Buyer
a true and complete copy of the Advertising Agreement.
2.4 Closing Date Adjustments to the Purchase Price. All payments of
rent, utilities, real estate taxes and other similar obligations for the account
of the Seller shall be prorated as of the Closing Date, and the Purchase Price
shall be adjusted accordingly.
2.5 Amounts owed under Airtouch Agreement. Without making any
adjustment to the Purchase Price: (i) amounts due and payable to the Seller by
Airtouch under the Airtouch Agreement as of the Closing Date shall be paid
directly to the Seller by the Buyer upon receipt by the Buyer of such amounts
from Airtouch; and (ii) amounts due and payable to Airtouch by the Seller under
the Airtouch Agreement as of the Closing Date shall be offset from the amounts
received by the Buyer from Airtouch which are due and payable to the Seller by
Airtouch under the Airtouch Agreement as of the Closing Date described in clause
(i), provided that if such amounts due and payable to Airtouch by the Seller
exceed the amounts due and payable to the Seller by Airtouch and received by the
Buyer, then the Seller shall promptly reimburse the Buyer for such excess.
2.6 Estoppel Letters . The Seller shall deliver to the Buyer as soon
as practicable after Closing (i) an estoppel letter from each lessor pursuant to
each of the Leases, substantially in the form attached hereto as Exhibit 2.6
(each individually, an "Estoppel Letter" and collectively, the "Estoppel
Letters") and (ii) the written consent of 990 Holcomb Bridge Road Associates,
the lessor pursuant to Section 8 of the lease agreement set forth in Section 5.8
with respect to the sublease set forth therein.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER.
Each Selling Party hereby jointly and severally represents and warrants
to the Buyer as follows as of the Closing Date:
3.1 Due Organization. The Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Georgia
with full corporate power and authority to carry on its business as it is now
being conducted, and to own, operate and lease its properties and assets. The
Seller is duly qualified or licensed to transact business in good standing in
every jurisdiction in which the conduct of its business or the ownership or
lease of its properties requires it to be so qualified or licensed. The Seller
has no subsidiaries.
3.2 Due Authorization. Each Selling Party has full power and authority
to enter into this Agreement and the agreements contemplated hereby and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement
3
5
and all other agreements and transactions contemplated hereby have been duly
authorized by the Board of Directors and shareholders of the Seller. This
Agreement and all other agreements contemplated hereby to be entered into by any
Selling Party each constitutes a legal, valid and binding obligation of such
Selling Party, enforceable in accordance with its terms.
3.3 No Violation. The execution, delivery and performance by the
Selling Parties of this Agreement, and all other agreements contemplated hereby,
and the fulfillment of and compliance with the respective terms hereof and
thereof by such Selling Parties, do not and will not (a) conflict with or result
in a breach of the terms, conditions or provisions of, (b) constitute a default
or event of default under, (c) result in the creation of any lien, security
interest, encumbrance or charge upon the Seller's capital stock or assets
(including, without limitation, the Purchased Assets) pursuant to, (d) give any
third party the right to accelerate any obligations under, (e) result in a
violation of, or (f) require any authorization, consent, approval, exemption or
other action by, notice to, or filing with any third party or court or
governmental instrumentality pursuant to, the charter or bylaws of the Seller,
or, to the best knowledge of the each Selling Party, any applicable law,
regulation, order, writ, statute, rule, injunction or decree of any court or
governmental instrumentality or any agreement or instrument to which any of the
Selling Parties or any of their properties are subject. Each Selling Party has
complied, in all material respects, with all applicable laws, regulations and
orders in connection with the execution, delivery and performance of this
Agreement and all other agreements and transactions contemplated hereby.
3.4 Airtouch Commission Reports. Attached as Exhibit 3.4 hereto are
true and complete copies of the commission reports prepared by Airtouch for the
12 most recent monthly periods (the "Airtouch Commission Reports").
3.5 Financial and Operating Information. The Seller has provided the
Buyer with true and complete copies of each of the Seller's 12 most recent
monthly statements for account number 8801317465 at Sun Trust [Atlanta, N.A.].
(a) Leases. Each of the lease and license agreements (each
individually, a "Lease" and collectively, the "Leases") to which the Seller is a
party. Each Lease is set forth under item (b) in Schedule 1.1.
(b) Customer Activation Agreements. Each customer activation
agreement (collectively, the "Customer Activation Agreements") between the
Seller and each customer of the Seller that is delivered to the Buyer pursuant
to Section 2.3(i), which Customer Activation Agreements provide for, among other
things, charge-backs to be paid to the Seller by each customer.
(c) Advertising Agreements. That certain Advertising Agreement
by and between the Seller and The Atlanta Journal Constitution (the "Advertising
Agreement"),
3.6 Assumed Liabilities. Except for the Assumed Liabilities, the
Buyer shall not be subject to and shall not have assumed any obligations or
liabilities (whether accrued, absolute, contingent, unliquidated or otherwise)
of the Seller.
4
6
3.7 Title to Purchased Assets. The Seller has good, valid and
marketable title to all Purchased Assets, and none of such property is held by
the Seller under any lease or conditional sales contract, or is subject to any
security agreement, lien, encumbrance, charge, equity or claim. Upon delivery to
the Buyer of the bills of sale, assignments and documents of conveyance referred
to in Section 2.2(a), the Buyer shall receive good, valid and marketable title
to all of the Purchased Assets free and clear of all liens, encumbrances,
charges, equities and claims.
3.8 Absence of Certain Change of Events. Except as set forth on
Schedule 3.8 hereto, since June 30, 1996, (a) there has not been, to the best
knowledge of each Selling Party, (i) any material adverse change in the
business, operations, properties, assets, technology, condition (financial or
otherwise) or liabilities of the Seller, in its employee, customer, supplier,
distributor or franchise relations or relations with Airtouch or in the
prospects of the Seller's business, or (ii) any damage, destruction or loss
(whether or not covered by insurance) materially and adversely affecting the
business, operations, properties, assets or condition (financial or otherwise)
of the Seller, its employee, customer, supplier, distributor or franchise
relations or relations with Airtouch or the prospects of the Seller's business;
and (b) the Seller has not (i) sold, transferred, leased, pledged or mortgaged
or agreed to sell, transfer, lease, pledge, or mortgage any of its material
assets, property or rights or canceled, waived or compromised or agreed to
cancel, waive or compromise, any material debts, claims or rights, (ii) made or
permitted any material amendment or early termination of any material contract,
lease, agreement or license relating to the operation of its business, (iii)
made any significant change in any method of accounting, or (iv) granted any
general increase in the compensation of officers or employees (including,
without limitation, any such increase pursuant to any bonus, pension,
profit-sharing or other plan or commitment).
3.9 Condition of Purchased Assets. To the best knowledge of each
Selling Party, the Purchased Assets set forth under item (c) of Schedule 1.1 are
in good operating condition and repair consistent with normal industry
standards, except for ordinary wear and tear, and except for such assets which
shall have been taken out of service on a temporary basis for repairs or
replacement consistent with the Seller's prior practices and normal industry
standards.
3.10 Patents, Trademarks, Etc. Schedule 3.10 hereto contains a list of
all of the material patents, trademarks, trade names, service marks and
copyrights, and applications therefor, which are owned by or licensed to the
Seller, or in which the Seller has any interest or which are presently being
used in connection with the business, products or processes of the Seller's
business, and any pending or current registration of any of the foregoing is set
forth in Schedule 3.10 hereto. No Selling Party has been charged with
infringement of, nor to the best knowledge of each Selling Party is any Selling
Party threatened to be charged with infringement of, nor has any Selling Party
infringed in any material respect, any unexpired patent, trademark, trademark
registration, trade name, service mark, copyright, copyright registration or
other proprietary right of any party in connection with the Seller's business.
3.11 Litigation. Except as set forth on Schedule 3.11 hereto, there
are no actions, suits or proceedings pending or, to the best of the knowledge of
each Selling Party, threatened by or against any Selling Party, at law or in
equity or before or by any governmental authority or instrumentality or before
any arbitrator of any kind, (a) with respect to this Agreement or any of
5
7
the other agreements or transactions contemplated hereby, or (b) with respect to
the Purchased Assets, Assumed Liabilities or the Seller's business.
3.12 Compliance with Law. To the best knowledge of each Selling
Party, the Seller is and has been in material compliance with all applicable
statutes, rules, regulations, ordinances, codes, orders, licenses, franchises,
permits, authorizations and concessions, as such apply to the Seller's business,
including, without limitation, any applicable building, zoning, antipollution,
hazardous chemical, waste disposal, occupational safety, health or other law,
ordinance or regulation in respect of any of the, offices, structures or
operations of the Seller's business, and no Selling Party has received any
notification alleging any violation of any of the foregoing.
3.13 Consents and Approvals. To the best knowledge of each Selling
Party, no notice to, consent, approval or authorization of, or declaration,
filing or registration with, any federal, state or local governmental or
regulatory authority, and no consent, approval or authorization of or notice to
any other person or entity, is required to be made or obtained by or on behalf
of any Selling Party in connection with the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby.
3.14 Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement binding
upon any Selling Party.
3.15 Leases. All amounts due and payable thereunder by the Seller,
including, without limitation, all rental, maintenance and marketing payments,
have been made. To the best knowledge of each Selling Party, (i) each of the
Leases is valid and enforceable and is in full force and effect, and, except as
set forth on Schedule 3.15 hereto, there are no defaults, or events which
constitute or would constitute (with notice or lapse of time or both) defaults,
by the Seller or any subsidiary under any of such Leases or, to the knowledge of
any Selling Party, by any other party thereto; (ii) the execution, delivery and
performance by the Selling Parties of this Agreement and the agreements
contemplated hereby and the consummation of the transactions contemplated hereby
and thereby will not result in the termination of, or in any increase of any
amounts payable under, any Lease; (iii) no Selling Party has received any notice
that the landlord with respect to any Lease would refuse to renew such Lease
upon expiration of the period thereof upon substantially the same terms; and
(iv) each Lease contains the entire agreement of the parties thereto with
respect to the subject matter thereof.
3.16 Airtouch Agreement. To the best knowledge of each Selling Party,
that certain Sales Agent Agreement for Cellular Radiotelephone Service dated
October 19, 1993 by and between Airtouch and the Seller, as amended by that
certain Amendment to Sales Agent Agreement for Cellular Radiotelephone Service
dated April 6, 1995 by and between Airtouch and the Seller, true and complete
copies of which agreement and amendment are attached hereto as Exhibit 3.16 (the
Sales Agent Agreement for Cellular Radiotelephone Service as so amended, the
"Airtouch Agreement") is valid and enforceable. The Airtouch Agreement contains
the entire agreement of the parties thereto with respect to the subject matter
thereof.
3.17 Disclosure. Neither this Agreement nor any of the exhibits,
attachments, written statements, documents, certificates or other items prepared
for or supplied to the Buyer by or on
6
8
behalf of any Selling Party with respect to the transactions contemplated hereby
contains any untrue statement of a material fact or omits a material fact known
to any Selling Party necessary to make each statement contained herein or
therein not misleading. There is no fact known to any Selling Party which any
Selling Party has not disclosed to the Buyer in writing and of which any Selling
Party or any of the Seller's officers, directors or executive employees is aware
and which could reasonably be anticipated to have a material adverse effect upon
the execution, delivery or performance of this Agreement or the agreements
contemplated hereby or on the consummation of the transactions contemplated
hereby and thereby.
3.18 Activations. To the best knowledge of each Selling Party, all
activations of radiotelephone service pursuant to the Customer Activation
Agreements and all other activations of radiotelephone service reported by the
Seller to Airtouch for payment pursuant to the Airtouch Agreement are good and
collectible. All such activations are valid, genuine and subsisting, arise out
of bona fide sales of radiotelephone service.
3.19 Customer Activation Agreements. To the best knowledge of each
Selling Party, each of the Customer Activation Agreements is valid and
enforceable.
3.20 Advertising Agreement. To the best knowledge of each Selling
Party, the Advertising Agreement is valid and enforceable and contains the
entire agreement of the parties thereto with respect to the subject matter
thereof.
3.21 Affidavit of Michael Weinstock. To the best knowledge of each
Selling Party, the Affidavit of Michael Weinstock referred to in Section 2.3(h)
is true and correct as of the date hereof.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer hereby represents and warrants to the Seller as follows as of
the Closing Date:
4.1 Due Organization. The Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida
with full corporate power and authority to carry on its business as it is now
being conducted, and to own, operate and lease its properties and assets. The
Buyer is duly qualified or licensed to transact business in good standing in
every jurisdiction in which the conduct of its business or the ownership or
lease of its properties requires it to be so qualified or licensed.
4.2 Due Authorization. The Buyer has full corporate power and
authority to enter into this Agreement and the agreements contemplated hereby
and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Agreement and all other agreements
and transactions contemplated hereby have been duly authorized by the Board of
Directors of the Buyer and no other corporate proceedings on its part are
necessary to authorize this Agreement and the transactions contemplated hereby.
This Agreement and all other agreements contemplated hereby to be entered into
by the Buyer each constitutes a legal, valid and binding obligation of the
Buyer, enforceable against the Buyer in accordance with its terms.
7
9
4.3 No Violation. The execution, delivery and performance by the
Buyer of this Agreement, and all other agreements contemplated hereby, and the
fulfillment of and compliance with the respective terms hereof and thereof by
the Buyer, do not and will not (a) conflict with or result in a breach of the
terms, conditions or provisions of, (b) constitute a default or event of default
under, (c) result in the creation of any lien, security interest, encumbrance or
charge upon the Buyer's capital stock or assets pursuant to, (d) give any third
party the right to accelerate any obligations under, (e) result in a violation
of, or (f) require any authorization, consent, approval, exemption or other
action by, notice to, or filing with any third party or court or governmental
instrumentality pursuant to, the charter or bylaws of the Buyer, or, to the best
knowledge of the Buyer, any applicable law, regulation, order, writ, statute,
rule, injunction or decree of any court or governmental instrumentality or any
agreement or instrument to which the Buyer or any of its properties are subject.
The Buyer has complied, in all material respects, with all applicable laws,
regulations and orders in connection with the execution, delivery and
performance of this Agreement and all other agreements and transactions
contemplated hereby.
4.4 Brokerage. There are no brokerage commissions, finder's fees or
similar compensation arrangements in connection with the transactions
contemplated by this Agreement such as to give rise to any valid claim against
the Buyer.
ARTICLE 5
OTHER AGREEMENTS
5.1 The Buyer to Make Records Available. After the Closing, the Buyer
shall make available to the Seller as reasonably requested by the Seller or any
taxing authority all information, records or documents relating to the Purchased
Assets for all periods prior to Closing and shall preserve all such information,
records and documents until two years after the Closing. Prior to destroying any
records related to the Seller's business after the Closing Date, the Buyer shall
notify the Seller of its intent to destroy such records, and the Buyer shall
permit the Seller to retain any such records.
5.2 Tax Allocation. The allocation of the Purchase Price to the
Purchased Assets shall be as set forth in Schedule 5.2 hereto so as to comply
with Section 1060 of the Internal Revenue Code of 1986, as amended.
5.3 Employment Matters. The Buyer shall have the right, but not the
duty, to offer employment to any or all of the employees currently or formerly
employed by the Seller in the conduct of the Seller's business. The Buyer shall
have no obligation in respect of, and assumes no responsibility for, accrued
employment benefits of any kind claimed to belong or belonging to such employees
(should there be any), including but not limited to pension or retirement
benefits, stock, profit sharing, bonus or other incentive compensation plans,
vacation pay, severance pay and benefits, payroll withholding, medical or dental
plans or insurance plans.
5.4. Non-Competition
(a) General. Marc Greene agrees that for the period commencing
on the Closing Date and ending on the third anniversary of the Closing Date, he
will not serve as or be a consultant to or employee, officer, agent, director or
owner of more than three percent (3%) of
8
10
another corporation, partnership or other entity which competes with the Buyer
within a 75 mile radius of the City of Atlanta in the Buyer's Business. The term
"Buyer's Business" shall mean the business of selling cellular or wireless
communications services or products. Marc Greene further agrees that for the
period commencing on the Closing Date and ending on the third anniversary of the
Closing Date, he (i) will not (x) solicit for employment, (y) endeavor in any
way to entice away from employment with the Buyer, the Seller or their
affiliates or (z) employ or contract with any employee of the Buyer or (for the
purpose of competing with the Buyer in the Buyer's Business) the Seller or any
of their affiliates who is an officer, a manager of any department, salesperson
or any sub-agent, sub-contractor or other independent contractor of the Buyer or
(for the purpose of competing with the Buyer in the Buyer's Business) the Seller
or any of their affiliates, including, without limitation, any resellers of
cellular or wireless communications services and (ii) will not solicit any
person, corporation, partnership or other entity that is a customers of the
Seller immediately prior to the Closing for the purpose of selling cellular or
wireless communications services or products.
(b) Non-Disclosure. Marc Greene hereby agrees that he shall,
and shall cause his affiliates and their respective agents, accountants, legal
counsel and other representatives and advisers (and shall use his best efforts
to cause his employees), to hold in strict confidence all, and not divulge or
disclose any, information concerning the Seller's trade secrets or the other
information set forth under item (f) to Schedule 1.1 for the purpose of
permitting such information to be used to compete with the Buyer in the Buyer's
Business within a 75 mile radius of the City of Atlanta; provided, however, that
the foregoing obligation of confidence shall not apply to (i) information that
is or becomes generally available to the public other than as a result of a
disclosure by any of the Selling Parties or any of their respective affiliates,
employees, agents, accountants, legal counsel or other representatives or
advisors (collectively, "Related Persons"), (ii) information that is or becomes
available to the Selling Parties or any of their Related Persons after the
Closing on a non-confidential basis prior to its disclosure by any of the
Selling Parties or any of their Related Persons and (iii) information that is
required to be disclosed by any of the Selling Parties or any of their Related
Persons as a result of any applicable law, rule or regulation of any federal,
state or local governmental authority; and provided, further, that the Selling
Parties shall promptly notify the Buyer of any disclosure pursuant to clause
(iii) above.
(c) Injunction. The parties hereto hereby acknowledge that a
breach or violation by any of the Selling Parties or their Related Persons of
any or all of the covenants and agreements contained in Section 5.4 may cause
irreparable harm and damage to the Buyer in a monetary amount which may be
virtually impossible to ascertain. As a result, each of the Selling Parties
acknowledges and agrees that the Buyer shall be entitled to an injunction from
any court of competent jurisdiction without having to post a bond and
restraining any breach or violation of any or all of the covenants and
agreements contained in Section 5.4 by the Selling Parties and/or their Related
Persons, either directly or indirectly, and that such right to injunction shall
be cumulative and in addition to whatever other rights or remedies that the
Buyer may possess hereunder, at law or in equity. Nothing contained in this
Section 5.4 shall be construed to prevent the Buyer from seeking and recovering
from the Selling Parties damages sustained by it as a result of any breach or
violation by any of them of any of the covenants or agreements contained in this
Section 5.4.
9
11
5.5 Confidential Documents. No Selling Party shall retain any
originals or copies of any of the following, whether written, printed or another
form of hard copy, or in electronic or magnetic form or contained on a computer
diskette or other similar media: (i) any of the Seller's customer lists; and
(ii) any product pricing materials relating to the Seller's business.
5.6 Fees for Assignment of Leases. The Seller shall be liable for
fees, if any, charged by the landlords in connection with the assignment of the
Leases set forth under item (b) in Schedule 1.1 and for any fees related to any
liabilities or obligations of the Seller (or any other person that is a party to
the Lease) that arose or are otherwise asserted by reason of events, acts (or
failure to act) or transactions occurring prior to the Closing Date.
5.7 Bulk Sales. The Buyer and the Selling Parties each hereby
acknowledge that the Selling Parties do not intend to comply with the Georgia
Bulk Sales Act in connection with the execution, delivery and performance of
this Agreement and the agreements contemplated hereby and the consummation of
the transactions contemplated hereby and thereby. The Selling Parties, jointly
and severally, shall indemnify and hold the Buyer harmless from any loss,
liability or expense resulting from the Selling Parties' failure to comply
therewith.
5.8 Sublease of Seller's Principal Offices. The Buyer hereby agrees
to sublease from the Seller the premises leased by Seller pursuant to that
certain lease agreement dated as of October 24, 1995 by and between North Point
Cellular, Inc. (d/b/a Peachtree Mobility) and 990 Holcomb Bridge Road Associates
relating to the lease of Suite 2 in the building located at 990 Holcomb Bridge
Road, Roswell, Fulton County, Georgia for a period of 90 days commencing on the
Closing Date and to pay rent at the rate of $4,790 per month, which rent shall
include all utilities. At the expiration of such 90-day period, the Buyer shall
promptly vacate such premises. The Buyer and the Seller each hereby acknowledge
and agree that whether or not such lease is so assigned, the Buyer shall be
entitled to remove or otherwise dispose of the furniture, equipment and other
contents of the leased premises that constitute the Purchases Assets purchased
by the Buyer on the Closing Date.
5.9 Claims of Shareholders. Each Shareholder hereby releases and
gives up any and all claims that he has against the Purchased Assets, including,
without limitation, those claims referred to in Schedule 5.9.
5.10 Reimbursement. The Buyer shall promptly reimburse the Seller for
any obligations of the Buyer after Closing that the Seller pays on behalf of the
Buyer as agreed by the Buyer and Seller.
ARTICLE 6
INDEMNIFICATION
6.1 Indemnification by the Seller. Each Selling Party agrees, jointly
and severally, to indemnify and hold harmless the Buyer and its affiliates at
all times against and in respect of all losses, liabilities, costs and expenses
(including reasonable attorneys' fees) which arise out of or are based on (a)
any taxes (federal, state or local) payable by the Seller or arising from the
transactions contemplated hereby, (b) any breach of the representations,
warranties, covenants or
10
12
agreements of the Selling Parties set forth in this Agreement and (c) any
Excluded Liabilities. The Buyer shall promptly notify any one of the Selling
Parties in writing of all matters which may give rise to the right to
indemnification hereunder. The Selling Parties shall not, without the prior
written consent of the Buyer, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not the Buyer is an actual or potential party to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of the Buyer from all liability arising out of such claim,
action, suit or proceeding. The Buyer and the Selling Parties shall keep each
other informed of all settlement negotiations with third parties and of the
progress of any litigation with third parties. The Buyer and the Selling Parties
shall permit each other reasonable access to books and records and otherwise
cooperate with all reasonable requests of each other in connection with any
matter or claim for indemnification by a third party.
6.2 Indemnification by the Buyer. The Buyer agrees to indemnify and
hold harmless the Seller at all times against and in respect of (i) all losses,
liabilities, costs and expenses (including reasonable attorneys' fees) which are
caused by any breach of the representations, warranties, covenants or agreements
of the Buyer set forth in this Agreement and (ii) any liabilities that accrue
after the Closing Date in connection with the operation of the Seller's
business. The Seller shall promptly notify the Buyer in writing of all matters
which may give rise to the right to indemnification hereunder, it being
understood that if the Buyer does not receive notice of any matter known to the
Seller and as to which the Seller is entitled to indemnification hereunder in
time to contest the determination of any such liability which is susceptible to
being successfully contested, the Buyer shall not be obligated to indemnify the
Seller with respect thereto. The Buyer shall have the right with the consent of
the Seller, which shall not be unreasonably withheld, to settle all
indemnifiable matters related to claims by third parties which are susceptible
to being settled, and to defend (without the consent of the Seller) through
counsel of its own choosing, at its own expense, any action which may be brought
by a third party in connection therewith; provided, however, that the Seller
shall have the right to have its counsel participate fully in such defense at
its own expense. The Buyer and the Seller shall keep each other informed of all
settlement negotiations with third parties and of the progress of any litigation
with third parties. The Buyer and the Seller shall permit each other reasonable
access to books and records and otherwise cooperate with all reasonable requests
of each other in connection with any matter or claim for indemnification by a
third party.
ARTICLE 7
MISCELLANEOUS
7.1 Binding Effect and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided, that neither this Agreement nor any of the
rights, benefits or obligations hereunder shall be assigned or transferred, by
operation of law or otherwise, by any Selling Party without the prior written
consent of the Buyer.
7.2 Survival. Any provision of this Agreement which contemplates the
performance or existence of obligations after the Closing Date, and any and all
representations and warranties set
11
13
forth in this Agreement, shall not be deemed to be merged into or waived by the
execution and delivery of the instruments executed at the Closing, but shall
expressly survive Closing and shall be binding upon the party or parties
obligated thereby in accordance with the terms of this Agreement, subject to any
limitations expressly set forth in this Agreement.
7.3 Severability. Each of the provisions contained in this Agreement
shall be severable, and the unenforceability of one shall not affect the
enforceability of any others or of the remainder of this Agreement.
7.4 Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the transactions covered hereby, superseding
all negotiations, prior discussions and preliminary agreements made prior to the
date hereof and is not intended to confer upon any other person any rights or
remedies hereunder.
7.5 Modification. This Agreement may not be amended, supplemented or
otherwise modified except by an instrument in writing signed by all of the
parties hereto.
7.6 Waiver The failure of any party to enforce any condition or part
of this Agreement at any time shall not be construed as a waiver of that
condition or part, nor shall such party forfeit any rights to future enforcement
thereof.
7.7 Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Georgia.
7.8 The headings of the sections and subsections of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
hereof.
7.9 More than one counterpart of this Agreement may be executed by the
parties hereto, and each fully executed counterpart shall be deemed an original.
7.10 Remedies. The rights and remedies provided by this Agreement are
cumulative, and the use of any one right or remedy by any party hereto shall not
preclude or constitute a waiver of its right to use any or all other remedies.
Such rights and remedies are given in addition to any other rights and remedies
a party may have by law, statute or otherwise.
7.11 Attorneys' Fees. In the event any suit or other legal proceeding
is brought for the enforcement of any of the provisions of this Agreement, the
parties hereto agree that the prevailing party or parties shall be entitled to
recover from the other party or parties upon final judgment on the merits
reasonable attorneys' fees, including attorneys' fees for any appeal, and the
costs incurred in bringing such suit or proceeding.
7.12 Each party hereto shall, at the request of any other party,
execute and deliver to such other party all such further instruments,
assignments, assurances and other documents as such other party may reasonably
request in connection with the carrying out of this Agreement.
12
14
7.13 Notices. All communications, notices and consents provided for
herein shall be in writing and be given in person or by means of telex, telecopy
or other wire transmission (with confirmation of receipt in a manner typical
with respect to communications of that type) or by mail, and shall become
effective (i) on delivery if given in person, (ii) on the date of transmission
and confirmation of receipt if sent by telex, telecopy or other wire
transmission, or (iii) four business days after being deposited in the mails,
with proper postage for first-class registered or certified air mail, prepaid.
Notices shall be addressed as follows:
If to the Buyer, to: Let's Talk Cellular of America, Inc.
5200 N.W. 77th Court
Miami, Florida 33166
Attn: Mr. Nick Molina and Mr. Brett Beveridge
Fax: (305) 477-1359
with a copy to: Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, Florida 33131
Attn: Jorge L. Freeland, Esq.
Fax: (305) 579-0717
If to the Seller, to: Weinstock & Scavo, P.C.
305 Piedmont Road, N.E.
Suite 300
Atlanta, Georgia 30305
Attn: Michael Weinstock
Fax: (404) 231-1618
provided, however, that if either party shall have designated a different
address by notice to the other as provided herein, then to the last address so
designated.
7.14 Expenses. The Seller shall bear its own expenses, including
without limitation, legal fees and expenses, with respect to this Agreement and
the transactions contemplated hereby. The Buyer shall bear its own expenses,
including without limitation, legal fees and expenses, with respect to this
Agreement and the transactions contemplated hereby.
* * *
13
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
LET'S TALK CELLULAR OF AMERICA, INC.
By: /s/Brett Beveridge
------------------------
Name: Brett Beveridge
Title: President
NORTH POINT CELLULAR, INC.
By: /s/Marc Greene
------------------------
Name: Marc Greene
Title: President
/s/Michael Weinstock
------------------------
Michael Weinstock
/s/Marc Greene
------------------------
Marc Greene
14
16
SCHEDULE 1.1
PURCHASED ASSETS
"Purchased Assets" shall be transferred to the Buyer and include,
without limitation, the following:
(a) Tradenames; Trademarks. All right, title and interest of the
Seller in and to all tradenames and trademarks used in the operation of the
Seller's business, all variants thereof and all goodwill associated therewith,
including, but not limited to all rights in and to the names, "Peachtree
Mobility" and "North Point Cellular, Inc."
(b) Leases. All of the Seller's right, title and interest in and
to the following Leases:
(i) Lease dated as of August 31, 1993 by and between
Buckhead Cellular, Inc. (d/b/a Peachtree Mobility) and James B. Cummings related
to the lease of a portion of a building located at 2955 Peachtree Road, City of
Atlanta, Fulton County, Georgia.
(ii) Lease dated as of July 29, 1993 by and between North
Point Cellular, Inc. (d/b/a Peachtree Mobility) and North Point Mall Limited
Partnership relating to the lease of a portion of North Point Mall located in
the City of Alpharetta, Fulton County, Georgia.
(iii) Lease dated as of April 13, 1994 by and between Town
Center Cellular, Inc. (d/b/a AirTouch) and Cobb Place Associates, L.P. relating
to the lease of Store No. 1424 in the Town Center at Cobb located in the City of
Kennesaw, Cobb County, Georgia.
(iv) Lease dated as of April 13, 1994 by and between
Gwinnett Cellular, Inc. (d/b/a Air Touch) and Gwinnett Place Associates, L.P.
relating to the lease of Store No. 0522 in the Gwinnett Place Mall located in
the City of Duluth, Gwinnett County, Georgia.
(v) License No. 1177 dated as of May 16, 1996 by and
between North Point Cellular, Inc. (d/b/a Peachtree Mobility) and Perimeter
Mall, Inc. relating to the license to sell from June 3, 1996 to August 31, 1996
retail cellular phones, phone accessories and phone services within Location No.
1002 of the Perimeter Mall located in the City of ___________ , Fulton/DeKalb
County, Georgia.
(vi) License No. 1178 dated as of May 16, 1996 by and
between North Point Cellular, Inc. (d/b/a Peachtree Mobility) and Perimeter
Mall, Inc. relating to the license to sell from September 1, 1996 to December
31, 1996 retail cellular phones, phone accessories and phone services within
Location No. 1002 of the Perimeter Mall located in the City of ___________,
Fulton/DeKalb County, Georgia.
(c) Equipment. All supplies, equipment, machinery, fixtures,
furniture (except as set forth under item (e) on Schedule 1.2), leasehold
improvements and other tangible property currently owned or used by the Seller
in connection with the operation of its business, including,
F-11
17
without limitation, the computer system used to catalogue the Seller's inventory
and all of the foregoing property located at the premises leased by the Seller
pursuant to that certain lease agreement set forth in Section 5.8 of this
Agreement.
(d) Airtouch Carrier Agreement. All of the Seller's right, title
and interest in and to the Airtouch Agreement.
(e) Business as a Going Concern. The business of the Seller as a
going concern, including, without limitation, its franchises, permits, licenses,
telephone numbers (including without limitation, the following numbers: (770)
645-6900, (770) 497-9330, (770) 425-7900, (770) 751-1211, (770) 395-9144 and
(404) 816-3663), signage, customer deposits, customer lists, vendor lists,
referral lists and contracts, advertising materials and data, restrictive
covenants, causes of action and similar obligations owing to the Seller, its
officers, employees, agents and others, together with all books, computer
software, files, papers, records and other data of the Seller relating to the
assets, properties, business and operations of the Seller's business.
(f) Trade Information. All proprietary knowledge, technical
information, quality control data, processes (whether secret or not), methods,
and other similar know-how or rights used in the conduct of the Seller's
business, including, but not limited to, the areas of retailing, sales,
marketing, advertising and personnel training and recruitment, together with all
rights to use any and all information, trade secrets, patents, copyrights,
trademarks, tradenames and other intangible properties that are necessary or
customarily used by the Seller for the ownership, management or operation of its
business.
(g) Deposits. All utility, security, lease and other deposits and
prepaid expenses attributable to the operation of the Seller's business,
including, without limitation, the deposits under the Leases set forth in item
(b) of this Schedule 1.1.
(h) Customer Activation Agreements. All of the Seller's right
title and interest in and to the Customer Activation Agreements.
(i) Invoices. All of the Seller's right title and interest in and
to the invoices for fixtures, fixed assets and construction on the premises
leased by the Seller pursuant to the Leases.
(j) Advertising Agreement. All of the Seller's right, title and
interest in and to the Advertising Agreement.
(k) Other. All other property and rights of every kind or nature
used by the Seller in the operation of its business (other than the Excluded
Assets).
18
SCHEDULE 1.2
EXCLUDED ASSETS
"Excluded Assets" shall not be transferred to the Buyer and are as follows:
(a) All inventories of the Seller relating to the operation of its
business.
(b) All corporate minute books of the Seller and any copies
thereof.
(c) All of the Seller's accounts receivable.
(d) All cash of the Seller in any of its cash registers, other
point of sale equipment or in any other location.
(e) All furniture located in Marc Greene's office at the principal
offices of the Seller leased pursuant to the lease agreement set forth in
Section 5.8 of this Agreement.
(f) Marc Greene's personal computer located at the premises set
forth in item (e) above.
(g) All of the Seller's bank records (excluding copies thereof),
tax returns and personal correspondence between the Shareholders.
(h) The Seller's account credit at the Chateau Elan Resort in
Braselton, Georgia.
19
SCHEDULE 1.3
ASSUMED LIABILITIES
"Assumed Liabilities" shall be transferred to the buyer and are as
follows:
(a) The liabilities of the Seller under the Airtouch Agreement
that accrue after the Closing Date or charge-backs which have accrued and have
not been reported to the Seller by Airtouch as of the Closing Date for
activations of radiotelephone service that have been subsequently terminated.
(b) The liabilities of the Seller under the Leases that accrue
after the Closing Date.
20
SCHEDULE 1.4
EXCLUDED LIABILITIES
"Excluded Liabilities" shall not be transferred to the Buyer and
include, without limitation, the following:
(a) With regard to the Airtouch Agreement, the following:
(i) Any and all expenses, obligations or liabilities in
connection with fraudulent activations reported to Airtouch by the Seller.
(ii) Cooperative charges for the account of the Seller
relating to marketing expenses.
(b) All sales, value added and other taxes, permit fees and other
similar obligations or liabilities of the Seller.
(c) Seller's pro rata share of the portions of the rental payments
under the Leases which are based upon a percentage of the Seller's annual 1996
sales ("percentage rent"). For each Lease, such pro rata share shall be equal to
the product of (i) the sum of such percentage rent and (ii) the result of
dividing the number of days elapsed in 1996 prior to the Closing Date by 365.
(d) All matters set forth on Schedule 3.11.
21
SCHEDULE 3.8
CERTAIN CHANGES OR EVENTS
22
SCHEDULE 3.10
PATENTS, TRADEMARKS, ETC.
The Notice of Publication under Section 12(a) of the Trademark Act of
1946, as amended, from the United States Department of Commerce, Patent and
Trademark Office, dated June 14, 1996, Serial Number 75/023.838, and the related
publication of the service mark pertaining thereto in the Marks Published For
Opposition Section of the Official Gazette of The United States Patent and
Trademark Office, Volume 1188, Number 3, dated July 16, 1996, page TM 265,
copies of each of which are attached hereto.
23
SCHEDULE 3.11
LITIGATION
(a) North Point Mall Limited Partnership vs. North Point Cellular,
Inc., Civil Action File No. 96-ED-0275925, in the Magistrate Court of Fulton
County, State of Georgia, and Civil Action File No. 96DD0002523 in the State
Court of Fulton County, State of Georgia.
24
SCHEDULE 3.15
LEASE DEFAULTS/CLAIMS
(a) [List of signage claims under certain Leases.]
25
SCHEDULE 5.2
ALLOCATION OF PURCHASE PRICE
(a) The Buyer will submit within 30 days a proposal for allocating
the Purchase Price.
26
SCHEDULE 5.9
SHAREHOLDER CLAIMS
[See attached]
27
EXHIBIT 2.3(A)(II)
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE (this "Assignment"), made as of August __,
1996 by and between NORTH POINT CELLULAR, INC. a Georgia corporation (the
"Seller"), having its principal offices at 990 Holcomb Bridge Road, Suite 2,
Roswell, Georgia 30076 and LET'S TALK CELLULAR OF AMERICA, INC., a Florida
corporation (the "Buyer"), having its principal offices at 5200 N.W. 77th Court,
Miami, Florida 33176.
WHEREAS, the Seller and the Buyer, have entered into an Asset Purchase
Agreement dated as of August ___, 1996 (the "Acquisition Agreement"; capitalized
terms used herein without further definition are used with the meanings
specified therefore in the Acquisition Agreement);
WHEREAS, pursuant to the Acquisition Agreement, the Seller has agreed
to assign to the Buyer the Lease; and
WHEREAS, the Seller and the Buyer desire to execute this Assignment to
further evidence the transfer of the Lease by the Seller to the Buyer;
NOW THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, the Seller and the Buyer agree as follows:
The Seller does hereby convey, assign and set over to the Buyer, its
respective successors and assigns, all of the Seller's right, title and
interest in and to the Lease Agreement dated as of ______________ by and
between _______________ and ________________ (the "Lease").
The Seller hereby represents to the best of its knowledge that:
(1) The Seller has good title to the Lease;
(2) The Seller has not heretofore assigned any of its right, title
and interest in and to the Lease;
(3) The Lease is in full force and effect.
(4) The Seller is not in default in the performance of any of its
covenants under the Lease and no event has occurred and no
condition exists that, with the giving of notice or the
passage of time, or both, would constitute a default in any
material respect, and to its best knowledge, no event has
occurred and no condition exists that, with the giving of
notice or the passage of time, or both, would constitute a
default, under the terms of the Lease.
28
(5) The Lease has not been modified, altered or amended in any
respect.
(6) The Lease contains the entire agreement of the parties thereto
with respect to the subject matter thereof.
(7) Funds totaling $_________ have been deposited by the Seller
under the Lease and are assigned to the Buyer hereunder.
Other than as set forth herein, the Seller makes no representation or
warranty, express or implied, with respect to the Lease.
By its execution hereof, the Buyer accepts this Assignment, including
all of the terms, conditions and obligations hereof imposed upon the Buyer.
Except as otherwise expressly provided in the Acquisition Agreement or in any of
the other documents executed in connection therewith; the Buyer assumes and
agrees to perform and observe all of the terms, conditions, covenants and
agreements required to be performed or observed by the Seller under the Lease
accruing on or after the date hereof.
This Assignment shall be governed by and construed in accordance with
the laws of the State of Georgia.
2
29
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Assignment to be duly executed and delivered as of this ____ day of August,
1996.
SELLER:
NORTH POINT CELLULAR, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
BUYER:
LET'S TALK CELLULAR OF AMERICA,
INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
3
30
EXHIBIT 2.3(A)(III)
ASSIGNMENT OF ADVERTISING AGREEMENT
THIS ASSIGNMENT (this "Assignment"), made as of August __, 1996 by and
between NORTH POINT CELLULAR, INC. a Georgia corporation (the "Seller"), having
its principal offices at 990 Holcomb Bridge Road, Suite 2, Roswell, Georgia
30076 and LET'S TALK CELLULAR OF AMERICA, INC., a Florida corporation (the
"Buyer"), having its principal offices at 5200 N.W. 77th Court, Miami, Florida
33176.
WHEREAS, the Seller and the Buyer, have entered into an Asset Purchase
Agreement dated as of August ___, 1996 (the "Acquisition Agreement"; capitalized
terms used herein without further definition are used with the meanings
specified therefore in the Acquisition Agreement);
WHEREAS, pursuant to the Acquisition Agreement, the Seller has agreed
to assign to the Buyer the Advertising Agreement; and
WHEREAS, the Seller and the Buyer desire to execute this Assignment to
further evidence the transfer of the Advertising Agreement by the Seller to the
Buyer;
NOW THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, the Seller and the Buyer agree as follows:
The Seller does hereby convey, assign and set over to the Buyer, its
respective successors and assigns, all of the Seller's right, title and
interest in and to the Advertising Agreement dated as of ______________ by and
between the Seller and The Atlanta Journal Constitution (the "Advertising
Agreement").
The Seller hereby represents to the best of its knowledge that:
(1) The Seller has not heretofore assigned any of its right, title
and interest in and to the Advertising Agreement;
(2) The Advertising Agreement is in full force and effect.
(3) The Seller is not in default in the performance of any of its
covenants under the Advertising Agreement and no event has
occurred and no condition exists that, with the giving of
notice or the passage of time, or both, would constitute a
default in any material respect, and to its best knowledge, no
event has occurred and no condition exists that, with the
giving of notice or the passage of time, or both, would
constitute a default, under the terms of the Advertising
Agreement.
4
31
(4) The Advertising Agreement has not been modified, altered or
amended in any respect.
(5) The Advertising Agreement contains the entire agreement of the
parties with respect to the subject matter thereof.
(7) Funds totaling $0 have been deposited by the Seller under the
Advertising Agreement and are assigned to the Buyer hereunder.
Other than as set forth herein, the Seller makes no representation or
warranty, express or implied, with respect to the Advertising Agreement.
By its execution hereof, the Buyer accepts this Assignment, including
all of the terms, conditions and obligations hereof imposed upon the Buyer.
Except as otherwise expressly provided in the Acquisition Agreement or in any of
the other documents executed in connection therewith; the Buyer assumes and
agrees to perform and observe all of the terms, conditions, covenants and
agreements required to be performed or observed by the Seller under the
Advertising Agreement accruing on or after the date hereof.
This Assignment shall be governed by and construed in accordance with
the laws of the State of Georgia.
2
32
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Assignment to be duly executed and delivered as of this ____ day of August,
1996.
SELLER:
NORTH POINT CELLULAR, INC.
By:
---------------------------
Name:
-------------------------
Title:
-----------------------
BUYER:
LET'S TALK CELLULAR OF AMERICA,
INC.
By:
---------------------------
Name:
-------------------------
Title:
-----------------------
3
33
EXHIBIT 2.3(A)(IV)
ASSIGNMENT OF CUSTOMER ACTIVATION AGREEMENTS
THIS ASSIGNMENT (this "Assignment"), made as of August __, 1996 by and
between NORTH POINT CELLULAR, INC. a Georgia corporation (the "Seller"), having
its principal offices at 990 Holcomb Bridge Road, Suite 2, Roswell, Georgia
30076 and LET'S TALK CELLULAR OF AMERICA, INC., a Florida corporation (the
"Buyer"), having its principal offices at 5200 N.W. 77th Court, Miami, Florida
33176.
WHEREAS, the Seller and the Buyer, have entered into an Asset Purchase
Agreement dated as of August ___, 1996 (the "Acquisition Agreement"; capitalized
terms used herein without further definition are used with the meanings
specified therefore in the Acquisition Agreement);
WHEREAS, pursuant to the Acquisition Agreement, the Seller has agreed
to assign to the Buyer each Activation Agreement; and
WHEREAS, the Seller and the Buyer desire to execute this Assignment to
further evidence the transfer of each Activation Agreement by the Seller to the
Buyer;
NOW THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, the Seller and the Buyer agree as follows:
The Seller does hereby convey, assign and set over to the Buyer, its
respective successors and assigns, all of the Seller's right, title and interest
in and to each customer Activation Agreement by and between the Seller and each
customer providing for the activation of radio-telephone service in connection
with the Airtouch Agreement (each, an "Activation Agreement" and collectively,
the "Activation Agreements").
The Seller hereby represents that to the best of his knowledge that:
(1) The Seller has not heretofore assigned any of its right, title
and interest in and to any Activation Agreement;
(2) Each Activation Agreement is in full force and effect.
(3) The Seller is not in default in the performance of any of its
covenants under any Activation Agreement and no event has
occurred and no condition exists that, with the giving of
notice or the passage of time, or both, would constitute a
default in any material respect, and to its best knowledge, no
event has occurred and no condition exists that, with the
giving of notice or the passage of time, or both, would
constitute a default, under the terms of any Activation
Agreement.
(4) No Activation Agreement has been modified, altered or amended
in any respect.
34
(5) Attached hereto are true and complete copies of the Activation
Agreements delivered to the Buyer pursuant to Section 2.3(i)
of the Acquisition Agreement.
Other than as set forth herein, the Seller makes no representation or
warranty, express or implied, with respect to the Activation Agreements.
By its execution hereof, the Buyer accepts this Assignment, including
all of the terms, conditions and obligations hereof imposed upon the Buyer.
Except as otherwise expressly provided in the Acquisition Agreement or in any of
the other documents executed in connection therewith; the Buyer assumes and
agrees to perform and observe all of the terms, conditions, covenants and
agreements required to be performed or observed by the Seller under the
Activation Agreements accruing on or after the date hereof.
This Assignment shall be governed by and construed in accordance with
the laws of the State of Georgia.
IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Assignment to be duly executed and delivered as of this ____ day of August,
1996.
SELLER:
NORTH POINT CELLULAR, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
BUYER:
LET'S TALK CELLULAR OF AMERICA,
INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
2
35
Exhibit 2.3(b)
BILL OF SALE
THIS BILL OF SALE effective as of August __, 1996, from NORTH POINT
CELLULAR, INC., a Georgia corporation ("SELLER"), to LET'S TALK CELLULAR OF
AMERICA, INC., a Florida corporation ("BUYER").
KNOW ALL MEN BY THESE PRESENTS, that pursuant to that certain Asset
Purchase Agreement dated August __, 1996, among BUYER, SELLER, and Michael
Weinstock and Marc Greene (the "Asset Purchase Agreement") and in consideration
of the payment of the Purchase Price (as defined in the Asset Purchase
Agreement), the assumption by BUYER of certain of the liabilities, obligations
and commitments of SELLER, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, SELLER hereby grants,
conveys, assigns, transfers and delivers to BUYER, its successors and assigns,
all of SELLER's right, title, interest and benefit in and to the Purchased
Assets (as defined in the Asset Purchase Agreement), free and clear of any and
all liabilities, liens, encumbrances, mortgages, security interests, pledges,
restrictions and claims of any kind or nature, contingent or otherwise, except
as expressly provided in that certain Asset Purchase Agreement of even date
herewith.
This Bill of Sale is subject to the terms and conditions of the Asset
Purchase Agreement and the transactions contemplated thereby.
All of the terms and provisions of this Bill of Sale shall be binding
upon SELLER and its successors and assigns and shall inure to the benefit of
BUYER and its successors and assigns.
IN WITNESS WHEREOF, SELLER has caused this Bill of Sale to be signed in
its name by its officer thereunto duly authorized as of the date first above
written.
NORTH POINT CELLULAR, INC.
By:
---------------------------------
36
EXHIBIT 2.3(D)
OPINION OF COUNSEL FOR SELLING PARTIES
The following opinion shall be addressed to Let's Talk Cellular of
America, Inc. Capitalized terms used herein without definition shall have the
meanings as set forth in the Asset Purchase Agreement (the "Acquisition
Agreement") dated as of August __, 1996 by and between Let's Talk Cellular of
America, Inc., North Point Cellular, Inc., Michael Weinstock and Marc Greene.
In such counsel's opinion, the Acquisition Agreement and the exhibits
attached thereto, other than the consulting agreement, to be entered into by
each Selling Party each constitutes a legal, valid and binding obligation of
such Selling Party, enforceable in accordance with its terms.
In such counsel's opinion and to the best of such counsel's knowledge:
(1) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Georgia with full corporate
power and authority to carry on its business as it is now being conducted, and
to own, operate and lease its properties and assets. The Seller is duly
qualified or licensed to transact business in good standing in every
jurisdiction in which the conduct of its business or the ownership or lease of
its properties requires it to be so qualified or licensed. The Seller has no
subsidiaries.
(2) The Seller has good, valid and marketable title to all
Purchased Assets, and none of such property is held by the Seller under any
lease or conditional sales contract, or is subject to any security agreement,
lien, encumbrance, charge, equity or claim. Upon delivery to the Buyer of the
bills of sale, assignments and documents of conveyance referred to in Section
2.2(a) of the Acquisition Agreement, the Buyer shall receive good, valid and
marketable title to all of the Purchased Assets free and clear of all liens,
encumbrances, charges, equities and claims.
(3) Each Selling Party has full power and authority to enter into
the Acquisition Agreement and the agreements contemplated thereby and to
consummate the transactions contemplated thereby. The execution, delivery and
performance of the Acquisition Agreement and all other agreements and
transactions contemplated thereby have been duly authorized by the Board of
Directors and shareholders of the Seller.
(4) The execution, delivery and performance by the Selling Parties
of the Acquisition Agreement, and all other agreements contemplated thereby, and
the fulfillment of and compliance with the respective terms thereof by such
Selling Parties, do not and will not (a) conflict with or result in a breach of
the terms, conditions or provisions of, (b) constitute a default or event of
default under, (c) result in the creation of any lien, security interest,
encumbrance or charge upon the Seller's capital stock or assets (including,
without limitation, the Purchased Assets) pursuant to, (d) give any third party
the right to accelerate any obligations under, (e) result in a violation of, or
(f) require any authorization, consent, approval, exemption or other action by,
notice to, or filing with any third party or court or governmental
instrumentality pursuant to, the charter or bylaws of the Seller, or, to the
best
37
of our knowledge, any applicable law or regulation or any order, writ, statute,
rule, injunction or decree of any court or governmental instrumentality known to
us to which the Seller is subject or any agreement or instrument known to us to
which any of the Selling Parties or any of their properties are subject. Each
Selling Party has complied, in all material respects, with all applicable laws,
regulations and orders in connection with the execution, delivery and
performance of the Acquisition Agreement and all other agreements and
transactions contemplated thereby.
(5) Except as set forth in the Acquisition Agreement, there are no
actions, suits or proceedings pending or, to the best of our knowledge,
threatened by or against any Selling Party, at law or in equity or before or by
any governmental authority or instrumentality or before any arbitrator of any
kind, (a) with respect to the Acquisition Agreement or any of the other
agreements or transactions contemplated thereby, or (b) with respect to the
Purchased Assets, Assumed Liabilities or the Seller's business.
(6) No notice to, consent, approval or authorization of, or
declaration, filing or registration with, any federal, state or local
governmental or regulatory authority, and no consent, approval or authorization
of or notice to any other person or entity, is required to be made or obtained
by or on behalf of any Selling Party in connection with the execution, delivery
and performance of the Acquisition Agreement and the consummation of the
transactions contemplated thereby.
2
38
EXHIBIT 2.3(F)
CERTIFICATE OF SECRETARY OF NORTH POINT CELULAR, INC.
I, Michael Weinstock, hereby certifiy that:
1. I am duly elected, qualified and acting Secretary of North
Point Cellular, Inc., a Georgia corporation (the "Corporation"), and as such,
have access to the books and records of the Corporation, and am personally
familiar with the facts concerning the matters herein certified.
2. Attached hereto as Exhibit "A" is a true and correct copy of
a Consent to Actions Taken by the Shareholders and Directors of the Corporation,
as of the date of this Certificate, and such Consent is in full force and
effect, and is filed with the records of the Corporation.
4. The following named persons are, as of the date hereof, the
only directors of the Corporation, and each is qualified and acting in the
office set forth below, opposite his name.
NAME OFFICE SIGNATURE
- ---- ------ ---------
Marc S. Greene President
-------------------------
Michael Weinstock Secretary
-------------------------
5. The signature appearing opposite the name of such persons as
set forth above is such person's genuine signature and Let's Talk Cellular,
Inc. may rely on the form of such signature in accepting any document
referred to in the Consent attached hereto as Exhibit "A".
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
corporate seal of the Corporation on this day of , 1996.
---- --------------
NORTH POINT CELLULAR, INC.
-----------------------------------------
Michael Weinstock, Secretary
39
EXHIBIT 2.3(H)
AFFIDAVIT
STATE OF GEORGIA )
) SS:
COUNTY OF __________ )
BEFORE ME, the undersigned authority, personally appeared Michael
Weinstock, who, after first being duly sworn, deposes and says that the
following facts are true and correct and given on personal knowledge:
1. I, Michael Weinstock, have no present intent (i) to serve as or be a
consultant to or employee, officer, agent, director or owner of more than three
percent (3%) of another corporation, partnership or other entity which competes
with the Buyer within a 75 mile radius of the City of Atlanta in the Buyer's
Business (the term "Buyer's Business" means the business of selling cellular or
wireless communications services or products); (ii) either (x) to solicit for
employment, (y) to endeavor in any way to entice away from employment with the
Buyer or its affiliates or (z) to employ any employee of the Buyer or any of its
affiliates who is an officer, a manger of any department, salesperson or any
sub-agent, sub-contractor or other independent contractor, including, without
limitation, any resellers of cellular or wireless communications services; or
(iii) to solicit any person, corporation, partnership or other entity that is a
customer of the Seller immediately prior to the Closing for the purpose of
selling cellular or wireless communications services or products. Capitalized
terms not defined above have the meanings given in that certain Asset Purchase
Agreement dated as of August __, 1996 by and
40
among Let's Talk Cellular of America, Inc., North Point Cellular, Inc., Michael
Weinstock and Marc Greene.
FURTHER AFFIANT SAYETH NAUGHT.
---------------------------------
STATE OF GEORGIA )
) SS:
COUNTY OF __________ )
Sworn to and subscribed before me this _____ day of ______________,
19_____. He/she/they personally appeared before me, is/are personally known to
me or produced ____________ ____________________ as identification, and [did]
[did not] take an oath.
Notary:
---------------------------------
[NOTARIAL SEAL] Print Name:
------------------------------
Notary Public, State of
-----------------
My commission expires:
------------------
2
41
EXHIBIT 2.3(J)
CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "Agreement") dated as of August __, 1996,
between Let's Talk Cellular of America, Inc., a Florida corporation (the
"Corporation"), and North Point Cellular, Inc., a Georgia corporation (the
"Consultant").
WHEREAS, the Consultant is willing to make its expertise and experience
available to the Corporation upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto do hereby agree as follows:
1. Term. For the period commencing on the date hereof and ending
on the date 30 months after the date thereof (the "Term"), the Consultant shall
provide advisory services to the Corporation as provided in Section 2.
2. Services.
(a) Subject to the restrictions set forth in paragraph
(b) below, during the Term the Consultant shall provide to the Corporation on a
non-exclusive basis advisory services relating to budgeting, developing
projections, administrative issues, financial reporting and other projects as
reasonably requested by the Corporation. The Consultant may provide its services
hereunder from its own place of business during the Consultant's normal business
hours according to a schedule reasonably acceptable to the Consultant and by way
of, among other means, telephone consultation or written correspondence and
otherwise in the manner reasonably acceptable to the Consultant. The Corporation
shall provide the Consultant with reasonable notice of any services requested.
The Consultant's services shall include obtaining on behalf of the Corporation
those certain estoppel letters set forth in the Escrow Agreement (as hereinafter
defined). With respect to each such estoppel letter that the Consultant delivers
to the Corporation, the Corporation shall promptly pay to the consultant an
amount equal to the deposit held by the landlord with respect to the lease
referred to in such estoppel letter. The Consultant shall not be obligated to
devote more than hours in any month to the provision of services hereunder
(b) The Consultant agrees that agrees that for the period
commencing on the date hereof (the "Closing Date") and ending on the third
anniversary of the Closing Date, it will not serve as or be a consultant to or
owner of more than three percent (3%) of another corporation, partnership or
other entity which competes with the Corporation within a 75 mile radius of the
City of Atlanta in the Corporation's Business. The term "Corporation's Business"
42
shall mean the business of selling cellular or wireless communications services
or products. The Consultant further agrees that for the period commencing on the
Closing Date and ending on the third anniversary of the Closing Date, it (i)
will not (x) solicit for employment, (y) endeavor in any way to entice away from
employment with the Corporation or its affiliates or (z) employ any employee of
the Corporation or any of its affiliates who is an officer, a manager of any
department, salesperson or any sub-agent, sub-contractor or other independent
contractor, including, without limitation, any resellers of cellular or wireless
communications services and (ii) will not solicit any person, corporation,
partnership or other entity that is a customer of the Corporation for the
purpose of selling cellular or wireless communications services or products.
(c) The parties hereto hereby acknowledge that a breach
or violation by the Consultant of any or all of the covenants and agreements
contained in paragraph (b) above may cause irreparable harm and damage to the
Corporation in a monetary amount which may be virtually impossible to ascertain.
As a result, the Consultant acknowledges and agrees that the Corporation shall
be entitled to an injunction from any court of competent jurisdiction without
having to post a bond and restraining any breach or violation of any or all of
the covenants and agreements contained in paragraph (b) above by the Consultant,
either directly or indirectly, and that such right to injunction shall be
cumulative and in addition to whatever other rights or remedies that the
Corporation may possess hereunder, at law or in equity. Nothing contained in
this Section 2 shall be construed to prevent the Corporation from seeking and
recovering from the Consultant damages sustained by it as a result of any breach
or violation by it of any of the covenants or agreements contained in this
Section 2.
3. Fees. In consideration of its agreement to act as a Consultant
pursuant to the terms of this Agreement, the Corporation hereby agrees to pay
the Consultant at the execution of this Agreement the sum of (i) $175,000 by
wire transfer of immediately available funds and (ii) $425,000 subject to an
escrow agreement in the form attached hereto as Exhibit A.
4. Expenses. The Consultant shall pay any and all costs or
expenses incurred by it in connection with any services it provides to the
Corporation hereunder.
5. Confidentiality. All information, knowledge and data relating
to or concerned with the operations, business and affairs of either the
Consultant or the Corporation, as the case may be, which are exchanged by the
parties hereto in connection with the performance by the Consultant of its
duties hereunder (including the existence of this Agreement) shall be the
property of the Corporation and be treated as confidential information and shall
be held in a fiduciary capacity by the parties hereunder. The Consultant shall
not disclose or divulge such information to any firm, person, corporation or
other entity other than in connection with the performance of its duties
hereunder.
6. Independent Contractor. In performing the services provided
for hereunder, the Consultant is acting as an independent contractor, and the
Consultant's employees at all times during the term of this Agreement shall be
in the employment of and under the supervision and responsibility of the
Consultant, and no person employed by the Consultant either directly or
indirectly shall be deemed by virtue of this Agreement, or any other agreement
related to the Business, to be the servant, agent or employee of the Corporation
or any affiliate of the Corporation for any purpose whatsoever.
-2-
43
7. Assignment. All of the terms of this Agreement shall inure to
the benefit of, be enforceable by and be binding upon the parties hereto and
their respective successors and assigns; provided, that the Consultant shall not
have the right to assign his rights or duties hereunder or any interest herein
without the prior written consent of the Corporation.
8. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if sent by registered or certified mail, return receipt requested,
with first-class postage fees prepaid, or if hand delivered against receipt or
if sent via facsimile transmission upon electronic confirmation of receipt
thereof during normal business hours, to the applicable party at the address
indicated below:
If to the Consultant:
If to the Corporation:
or, to each party, to such other address as shall be designated by such party in
a written notice to the other party pursuant to the provisions of this Section
8. All such notices, requests, demands and other communications shall be
effective when sent.
9. Severability. In the event any part of this Agreement, for any
reason, shall be finally adjudged by any court of competent jurisdiction to be
invalid, such judgment shall not affect, impair or invalidate the remainder of
this Agreement and this Agreement shall be reformed consistent with the original
objectives of this Agreement. The invalidity of any part or parts of this
Agreement shall not relieve the parties from their other duties and obligations
under this Agreement.
10. Waiver. The failure of either party to enforce any provision
of this Agreement or exercise any right granted hereby shall not be construed to
be a waiver of such provision or right nor shall it affect the validity of this
Agreement or any part hereof or limit in any way the right of either party
subsequently to enforce any such provision or exercise such right in accordance
with its terms.
11. No Third-Party Beneficiaries. This Agreement shall be
construed to be for the benefit of only the parties hereto and shall confer no
right or benefit upon any other person based on the theory of third party
beneficiaries or otherwise.
12. Amendments. The term of this Agreement may be amended,
modified, discharged, waived or terminated only by a written instrument executed
by both parties or, in the case of a waiver, by the party waiving compliance,
unless such waiver is conditional.
-3-
44
13. Titles and Headings. The titles and headings included in this
Agreement are inserted for convenience only and shall not be deemed to be a part
of or considered in construing this Agreement, nor limit or otherwise affect the
meaning hereof.
14. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, and which
together shall constitute but one and the same instrument.
15. Entire Agreement. This Agreement and the Full Unconditional
Release constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof, and no amendment or modification hereof shall be
valid or binding unless made in writing and signed by the party against whom
enforcement thereof is sought.
16. Applicable Law. This Agreement shall be governed, interpreted
and construed in accordance with the laws of the State of Georgia without regard
to choice-of-law principles thereof.
17. Limits of Liability. No party shall have any liability
hereunder to the other except for wilful misconduct or violation of any
applicable law. No direct or indirect shareholder, officer, director or agent of
the Consultant shall have any obligation or liability hereunder or with respect
to any judgments obtained by any party against such corporation.
* * *
45
IN WITNESS WHEREOF, the parties hereto have caused this Consulting
Agreement to be duly executed on the date and year first above written.
LET'S TALK CELLULAR OF AMERICA,
INC.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
NORTH POINT CELLULAR, INC.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
46
EXHIBIT 2.6
ESTOPPEL LETTER
THIS ESTOPPEL LETTER (this "Agreement") dated as of _____________,
199_, by and between __________________________________________________, whose
address is _________________________________ ("Landlord"),
_______________________________, a ___________ corporation ("Tenant").
WHEREAS, the Tenant has by a written lease dated ______________, 19__
(as amended from time to time hereinafter called the "Lease") leased from the
Landlord all or part of certain real estate and improvements thereon located on
the property more particularly described in Exhibit A hereto (the "Premises");
WHEREAS, Let's Talk Cellular of America, Inc., a Florida corporation
(the "Purchaser") intends to acquire all of the assets of the Tenant (the
"Acquisition") and desires to have the Lease assigned to it prior to the
consummation of the Acquisition;
WHEREAS, the Purchaser and the Tenant desire to obtain the consent of
the Landlord to facilitate the consummation of the Acquisition.
NOW, THEREFORE, in consideration of the premises hereof and mutual
promises and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Consent to Acquisition. The Landlord hereby acknowledges and
agrees that (a) the Purchaser may acquire the assets of the Tenant and such
Acquisition does not constitute a breach of, or default under, or modify the
terms of, the Lease and, to the extent the Lease contains any provision to the
contrary, such provisions are hereby waived with respect to the Acquisition, and
(b) the Tenant may assign the Lease to the Purchaser.
2. Acknowledgement of Security Interest. The Landlord
acknowledges that the Purchaser and/or Tenant has or will execute and deliver a
security agreement (the "Security Agreement") in favor of its lenders on the
Lease and (a) all property, including, without limitation, trade fixtures,
equipment and inventory located on or used in connection with the Premises by
the Tenant, and (b) operating licenses and permits now or at any time hereafter
relating to the use of the Premises (all such property being collectively
referred to as the "Collateral") and the Landlord agrees that the execution,
delivery and performance of the Security Agreement by the Purchaser and its
lenders do not constitute a breach of, or default under, or modify the terms of,
the Lease.
3. Acknowledgment of Certain Rights. The Landlord hereby
acknowledges that (i) the Tenant intends to enter into (A) an Assignment,
Assumption and Consent Agreement (the "AirTouch Assignment") by and among the
Tenant, the Purchaser and AirTouch Cellular of Georgia ("AirTouch") providing
for, among other things, the assignment to the Purchaser of that certain Sales
Agent Agreement dated October 19, 1993 by and between AirTouch and the
47
Tenant, as amended by an Amendment to Sales Agent Agreement for Cellular
Radiotelephone Service dated April 6, 1995 (as so amended, the "Sales Agent
Agreement") and (B) an Amendment Number Two to Sales Agent Agreement for
Cellular Radiotelephone Service by and between AirTouch and Purchaser and (ii)
pursuant to the AirTouch Assignment, AirTouch will have (A) the right to approve
or disapprove certain transfers of the Purchaser's right, title or interest in
any lease for certain of its retail stores, including the Lease, or any right,
title or interest in either of the trade names "Peachtree Mobility" or "Let's
Talk Cellular and Wireless" and (B) a right of first refusal in certain
circumstances to purchase Tenant's right, title or interest in any or all of the
leases for certain of its retail stores, including the Lease, or any of Tenant's
right, title or interest in either of the trade names "Peachtree Mobility" or
"Let's Talk Cellular and Wireless."
4. No Defaults. The Landlord acknowledges and agrees that there
are no existing defaults under the Lease on the part of the Landlord and the
Tenant, the Tenant has paid all rent through the last day of the whole calendar
month ending prior to the date hereof and the Tenant has performed all covenants
required of the Tenant under the terms of the Lease prior to the date hereof.
5. Notices. Any notice(s) required or desired to be given
hereunder (a) to the Landlord shall be in writing directed to
__________________________________, Attention: _____________________________,
and (b) to the Purchaser shall be directed to Let's Talk Cellular of America,
Inc., Attention: ___________________________. All notices hereunder shall be
sent by prepaid certified or registered mail, return receipt requested, or
delivered to a regularly scheduled overnight delivery carrier with delivery fees
either prepaid or an arrangement, satisfactory with such carrier, made for the
payment of such fees.
6. Amendments; Notice of Assignment of Interests. The agreements
contained herein may not be modified or terminated orally and shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors or assigns. The Lenders shall promptly notify the Landlord, in the
event that the Lenders shall assign their right, title and interest in or under
the Security Agreement to any third person. The Landlord shall promptly notify
the Lenders in the event that the Landlord shall assign or encumber its interest
in the Premises or under the Lease.
7. Deposits. The Landlord currently holds deposits of the Tenant
under the Lease totaling $________________.
8. Tenant's Obligations. THIS AGREEMENT SHALL NOT IMPAIR OR
OTHERWISE AFFECT TENANT'S OBLIGATIONS TO PAY RENT AND ANY OTHER SUMS PAYABLE BY
TENANT OR TO OTHERWISE PERFORM ITS OBLIGATIONS TO THE LANDLORD PURSUANT TO THE
TERMS OF THE LEASE.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
[LANDLORD]
By:
----------------------------
Title:
------------------------
[TENANT]
By:
----------------------------
Title:
------------------------
-2-
48
STATE OF _________________ )
) SS
COUNTY OF ________________ )
On this ____ day of __________________, 199_, before me, the
undersigned, a Notary Public in and for the __________________________,
personally appeared _________________ _________________________, to me
personally known, who, being by me duly sworn, did say that he is the
_____________________________ of said corporation executing the within and
foregoing instrument; that (no seal has been procured by the said) (the seal
affixed thereto is the seal of said) corporation; that said instrument was
signed (and sealed) on behalf of said corporation by authority of its Board of
Directors; and that the said ________________ _______________________________ as
such officer acknowledged the execution of said instrument to be the voluntary
act and deed of said corporation, by it and by him voluntarily executed.
-------------------------------------
Notary Public in and for the
----------------------------
-3-