EXHIBIT 10.1
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CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS
([**]), HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (the "Agreement") is entered
into as of August 31, 2005 by and among Transol Holdings Pty Limited (ACN 100
078 046), a corporation registered in Victoria, Australia (receivers and
managers appointed) ("Transol Holdings"), Transol PTY Limited (ABN 65 095 538
828), a corporation incorporated in Victoria, Australia (receivers and managers
appointed) ("Transol PTY"), Transol Corporation Limited (ABN 73 089 224 402), a
corporation registered in New South Wales, Australia (receivers and managers
appointed) ("Transol Limited"), and Alleasing Finance Australia Limited (ABN 94
003 421 136), a corporation registered in New South Wales, Australia formerly
known as RentWorks Limited ("Alleasing") and Xxxxxx Traffic Systems, Inc., a
Delaware corporation ("Purchaser"). Transol Holdings, Transol PTY, Transol
Limited are collectively referred to herein as the "Debtors", and, together with
Alleasing, "Sellers".
RECITALS
A. On September 30, 2004, Alleasing, Debtors, Xxxxxx Xxxxxx an
individual, and Xxxxxxx Xxxxxx also an individual entered into that certain
RentWorks Agreement (as amended, the "MASTER RENTAL AGREEMENT"), pursuant to
which Alleasing leased to Debtors certain equipment (the "LEASED EQUIPMENT") and
extended financial accommodations to or for the direct or indirect benefit of
Debtors.
B. To secure the payment and performance of the obligations of Debtors
under the Master Rental Agreement, Alleasing and Debtors entered into that
certain Deed of Charge and Transol Holdings and Alleasing entered into that
certain Collateral Grant of Security Interests in Patents and Trademarks, each
dated as of even date with the Master Rental Agreement (collectively, the
"DEBTORS' SECURITY AGREEMENTS"), whereby Debtors granted to Alleasing a
continuing perfected security interest in and lien upon all the assets of
Debtors (the "DEBTORS' COLLATERAL").
C. Transol USA INC. ("TRANSOL USA") is a wholly-owned subsidiary of
Debtors, and depends upon Debtors for funding and financial support and in order
to induce Alleasing to enter into the Master Rental Agreement and as a condition
to Debtors being permitted to sublease or make available to Transol USA some of
the Leased Equipment, Transol USA executed a Guaranty dated as of even date with
the Master Rental Agreement (the "GUARANTY"), in favor of Alleasing guaranteeing
the due and punctual payment, performance and discharge of Debtors' obligations
under the Master Rental Agreement.
D. To secure the payment and performance of the obligations of Transol
USA under the Guaranty, Alleasing and Transol USA entered into that certain
Security Agreement dated as of even date with the Guaranty (the "TRANSOL U.S.A.
SECURITY AGREEMENT", the Debtors' Security Agreements and the Transol U.S.A.
Security Agreement are collectively referred to as the "SECURITY AGREEMENTS"
and, together with the Master Rental Agreement and the Guaranty, are
collectively referred to as the "CREDIT DOCUMENTS"), whereby Transol USA granted
to Alleasing a continuing perfected interest in and lien upon all personal
property of Transol USA (the "GUARANTOR COLLATERAL" and together with the
Debtors' Collateral, the "COLLATERAL").
E. Debtors are in default of their obligations to Alleasing with
respect to the Credit Documents (all of such obligations are collectively
referred to herein as the "OBLIGATIONS"), and the Obligations have been
accelerated and are now immediately due and payable under the terms of the
Credit Documents (which Credit Documents are governed by the law of the State of
California).
F. On July 14, 2005, pursuant to those certain Deeds Appointment of
Receivers and Managers, Xxxxxxx Xxxxxx Xxxx and Xxxx Xxxxxxxx Xxxxxxxxx (in such
capacity only, and not individually, "RECEIVERS") were appointed as receivers
and managers for the Debtors and the Debtors' Collateral.
G. Alleasing has the unequivocal right to enforce all of its remedies
against Debtors and Transol USA, including the right to enforce its security
interests and liens against the Collateral.
H. Pursuant to those certain Peaceful Foreclosure Agreements of even
date herewith ("Foreclosure Agreements"), entered into by and among each of
Transol USA and the Debtors and Alleasing (true and complete, fully executed
copies of which have been furnished to Purchaser), each of Transol USA and the
Debtors has consented to the sale by Alleasing to Purchaser of all of, Debtors'
and Transol USA's right, title and interest in certain of the Collateral more
fully identified on SCHEDULE I to this Agreement (the "PURCHASED ASSETS") and
the Debtors have agreed to cooperate with Alleasing to facilitate the sale of
the Purchased Assets and are joining in this Agreement as Sellers in order to
convey any remaining right, title and interest of the Debtors in the Purchased
Assets on the terms and conditions set forth herein.
I. Subject to the terms and conditions of this Agreement, Purchaser
has agreed to purchase from Sellers, and Sellers have agreed to sell to
Purchaser, the Purchased Assets on the terms and conditions set forth herein and
to assume all of the Assumed Obligations (as defined herein), on the terms and
conditions set forth herein. The Purchased Assets do not include any of the
Excluded Assets (as defined herein).
NOW THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller hereby agree as follows:
1. Sale of Purchased Assets.
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(a) CLOSING. Upon the terms and subject to the conditions of this
Agreement, in consideration of and in exchange for Sellers' receipt of the
Purchase Price defined in Section 2 herein, (i) Alleasing agrees, on the Closing
Date (as defined herein), to irrevocably sell, transfer, assign, convey, and
transfer to Purchaser and Purchaser hereby agrees to purchase from Alleasing,
pursuant to Section 9610 of the California Uniform Commercial Code (the "Uniform
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Commercial Code") and other applicable law, all of Debtors' and Transol USA's
rights, title and interests in the Purchased Assets (the "FORECLOSURE"), (ii)
Alleasing also agrees, on the Closing Date (as defined herein), to irrevocably
sell, transfer, assign, convey, and transfer to Purchaser and Purchaser hereby
agrees to purchase from Alleasing, pursuant to applicable law, all of
Alleasing's rights, title and interests in any of the Purchased Assets owned by
Alleasing and leased to Debtors or Transol USA, and (iii) Debtors' agree on the
Closing Date (as defined herein), to irrevocably sell, transfer, assign, convey,
and transfer to Purchaser and Purchaser hereby agrees to purchase from Debtors,
pursuant to applicable law, any remaining rights, title and interests of Debtors
in the Purchased Assets. The sale of the Purchased Assets is "as is", "where is"
and (except as set forth in Sections 5 and 6) without representations or
warranties of any kind, express or implied, including, without limitation, any
warranties as to merchantability, value, useful life, fitness for intended use,
title, possession, quiet enjoyment or similar representations and warranties. On
the Closing Date, each of Sellers and Purchaser shall execute and deliver to
each other a Xxxx of Sale and Assignment, substantially in the form attached
hereto as EXHIBIT A. On the Closing Date:
(i) each of Sellers and Purchaser shall execute and deliver
to each other an Assignment of Intellectual Property Rights [to be
drafted], substantially in the form attached hereto as EXHIBIT B [to
be included]; and
(ii) Sellers shall deliver an executed deed of release by
Alleasing in full release of the fixed and floating charges over the
Purchased Assets (ASIC charge numbers 1085953, 1085954 and 1085955)
and executed ASIC Forms 312 in a form ready for lodgment with ASIC to
record the release of those fixed and floating charges.
The transactions contemplated herein shall be consummated (the "CLOSING") on or
before August 31, 2005 (the "CLOSING DATE"). Notwithstanding anything to the
contrary, the Excluded Assets shall not be transferred to Purchaser and all
Excluded Assets shall be retained by Seller. Notwithstanding any other provision
hereof, Purchaser assumes no liabilities under this Agreement except the Assumed
Obligations (as defined in Section 4).
(b) RETAINED ASSETS. Except as otherwise provided in this Agreement,
Debtors and Transol USA shall retain and Sellers shall not transfer to Purchaser
any interest in the Excluded Assets. For purposes of this Agreement, "EXCLUDED
ASSETS" shall mean all assets of Debtors and Transol USA other than those assets
specifically included and described in the definition of Purchased Assets.
Without limiting the generality of the previous sentence and solely for
clarification, Excluded Assets shall include, without limitation the following
items: (a) all cash, cash equivalents and uncashed checks received prior to the
Closing Date, (b) any contracts of insurance, except the rights of Debtors,
Transol USA or Sellers as an additional insured or loss payee on any insurance
contract, (c) any intercompany agreements, contracts or commitments between
Debtors and Transol USA and any of their respective affiliates, (d) any right
that Debtors and Transol USA have with respect to tax refunds, claims for tax
refunds and tax attributes arising prior to the Closing Date, (e) to the extent
prohibited by any license or other agreement, any software or other licensed
products that may be installed on or attached to the Purchased Assets delivered
to Purchaser, and (f) the personal property identified on SCHEDULE II, hereto.
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(c) EXTINGUISHMENT OF LIENS. All of the Purchased Assets to be sold
to Buyer pursuant to SECTION 1(a) shall be sold free and clear of any security
interests, liens or other encumbrances. It is the express intent of the Parties
that the sale of the Purchased Assets contemplated pursuant to SECTION 1(a) be
consummated pursuant to SECTION 9610 of the Uniform Commercial Code and other
applicable law. Upon deposit of the full Purchase Price with the Escrow Agent,
Sellers will discharge their security interests in the Purchased Assets, and any
security interests junior and/or subordinated thereto will be discharged in
full. Sellers will remain responsible for any security interests that will not
be discharged as a result of the Foreclosure and shall cause them to be
discharged as provided herein.
(d) PURCHASE PRICE. On the Closing Date, in consideration of the
sale and transfer of the Purchased Assets, Purchaser agrees to purchase from
each of the Sellers the Purchased Assets owned by such Seller for an aggregate
amount equal to $2,000,000 (as it may be adjusted pursuant to SCHEDULE 2(a), the
"PURCHASE PRICE"). (All amounts in this Agreement are in U.S. Dollars). An
amount equal to $200,000 has been deposited by Buyer with U.S. Bank National
Association, a national banking association, ("ESCROW AGENT") and shall be
applied against the Purchase Price at Closing. The Purchase Price shall be paid
at Closing as follows:
(i) $216,801.06 shall be paid to the Debtors by wire
transfer as follows:
Account Name: Transol PTY Ltd (Receivers and Managers Appointed)
Bank: Westpac Banking Corporation
000 Xxxxxx Xxxxxx, Xxxxxx XXX
BSB: 032 000
Account No.: 567599
SWIFT code: "XXXXXX0X"
(ii) $1,783,198.94, which amount includes the $200,000
already held by Escrow Agent, shall be deposited with U.S. Bank
National Association, a national banking association, as Escrow Agent
pursuant to wire transfer as follows:
BBK: U.S. Bank N.A. (ABA #000000000)
BNF: U.S. Bank Trust N.A. / AC #180121167365
Ref: Transol Escrow Account
Attn: Xxxxx Xxxx, (000) 000-0000
2. Risk of Loss.
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Until the Closing, any loss of or damage to the Purchased Assets
from fire, casualty or any other occurrence shall be the sole responsibility of
Debtors and Transol USA. At the Closing, title to the Purchased Assets shall be
transferred to Purchaser, and Purchaser shall thereafter bear all risks of loss
associated with the Purchased Assets.
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3. Delivery of Purchase and Sale Documents on the Closing Date.
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(a) DELIVERY BY SELLERS. Sellers hereby agree to deliver, or
cause to be delivered, to Purchaser the documents or instruments with respect to
the Purchased Assets set forth in Exhibit C. Debtors shall also terminate the
registration in Australia of the business name "Transol Group", registered in
Victoria Australia (registration number B1594220R).
(b) DELIVERY BY PURCHASER. Purchaser hereby agrees to deliver or
cause to be delivered to Sellers at the Closing (a) the Purchase Price in
accordance with Section 1(c) above, and (b) the instruments and documents set
forth in Exhibit D.
4. ASSUMPTION OF OBLIGATIONS. Effective on the Closing Date,
Purchaser, in reliance on Sellers' representations and warranties set forth in
Section 6 and 7, hereby assumes all of the obligations of Debtors and Transol
USA under the contracts listed on Exhibit A (the "Assumed Contracts"), except
for obligations arising out of actions or inactions of Sellers before the
consummation of the transactions contemplated by this Agreement (the "Assumed
Obligations").
5. REPRESENTATIONS AND WARRANTIES OF ALLEASING. Alleasing hereby
represents and warrants to Purchaser, as of the date hereof and as of the
Closing Date, as follows:
(a) (i) Alleasing has good and marketable title to the Leased
Equipment included in the Purchased Assets (as listed on Exhibit A); (ii)
Alleasing has a valid and enforceable lien upon and security interest in
Debtors' and Transol USA's right, title and interest in the Purchased Assets;
(iii) one or more defaults under the Credit Documents has occurred and is
continuing; and (iv) Alleasing has the right and is entitled to enforce its
security interest by foreclosure sale, and has taken all steps required for such
sale under the Uniform Commercial Code as the same may, from time to time, be
enacted and in effect in the State of California or in the state where the
Purchased Assets are located, if necessary, including, without limitation,
notice to any junior lien holders.
(b) Alleasing is (i) a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation; and (ii) duly qualified, licensed to do business and in good
standing as a foreign corporation in each jurisdiction where the failure to be
so qualified or licensed could reasonably be expected to have a Material Adverse
Effect on Alleasing. For purposes of this Agreement, a "Material Adverse Effect"
shall mean a material adverse effect on the enforceability of this Agreement or
the sale and purchase of the Purchased Assets.
(c) Alleasing has the full power, authority and legal right to
execute and deliver this Agreement (and all agreements executed and delivered by
it in connection herewith) and to perform all transactions contemplated by this
Agreement (and by all agreements executed and delivered by it in connection
herewith). The execution, delivery and performance by Alleasing of this
Agreement (and all agreements executed and delivered by it in connection
herewith) and the consummation by Alleasing of the actions contemplated by it
hereby and thereby have been duly authorized by all necessary actions on the
part of Alleasing and Alleasing has duly executed and delivered this Agreement
(and all agreements executed and delivered by it in connection herewith). The
execution of this Agreement by Alleasing constitutes a legal, valid and binding
obligation of Alleasing, enforceable against Alleasing in accordance with its
terms.
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(d) No consent, approval, order or authorization of, or
registration, declaration or filing with any governmental authority or other
person or entity (including without limitation the shareholders of any person or
entity) is required in connection with the execution and delivery of this
Agreement by Alleasing, or the performance and consummation of the transactions
contemplated hereby.
(e) As of the Closing Date, the Purchased Assets shall be free
and clear of any lien, claim or encumbrance other than (i) the possible lien,
claim or encumbrance in favor of [**], against certain rights to payment under
that certain [**] Agreement by and between Transol USA Inc. and [**], dated as
of [**], pursuant to that certain stop notice dated as of [**], in the amount of
[**], and (ii) any lien, claim or encumbrance in favor of [**], against certain
rights to payment under that certain [**] Agreement, by and between Transol USA
Inc. and [**], dated as of [**] in an amount not to exceed [**].
(g) The copies of the Foreclosure Agreements delivered to
Purchaser are true and correct and form an integral part of this Agreement.
Purchaser shall be entitled to rely thereon and on the representations,
warranties and covenants of the parties to the Foreclosure Agreements.
The provisions of this Section 5 shall survive until February 28,
2006.
6. REPRESENTATIONS AND WARRANTIES OF DEBTORS AND RECEIVERS. Debtors
and Receivers hereby represent and warrant to Purchaser, as of the date hereof
and as of the Closing Date, as follows:
(a) Receivers, as receivers and managers for the Debtors, have
the right and power on behalf of Debtors to sell, transfer and assign all of the
Debtors' interests in the Purchased Assets.
(b) Receivers have the full power, authority and legal right to
execute and deliver this Agreement on behalf of the Debtors (and all agreements
executed and delivered by them in connection herewith) and to perform all
transactions contemplated by this Agreement (and by all agreements executed and
delivered by them in connection herewith). The execution, delivery and
performance by the Debtors of this Agreement (and all agreements executed and
delivered by them in connection herewith) and the consummation by the Debtors of
the actions contemplated by them hereby and thereby have been duly authorized by
all necessary actions and the Receivers have duly executed and delivered this
Agreement on behalf of the Debtors (and all agreements executed and delivered by
it in connection herewith). The execution of this Agreement by the Receivers
constitutes a legal, valid and binding obligation of Debtors, enforceable
against Debtors in accordance with its terms.
(c) No consent, approval, order or authorization of, or
registration, declaration or filing with any governmental authority or other
person or entity (including without limitation the shareholders of any person or
entity) is required in connection with the execution and delivery of this
Agreement by Debtors, or the performance and consummation of the transactions
contemplated hereby.
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(d) As of the Closing Date, the Purchased Assets shall be free
and clear of any lien, claim or encumbrance other than (i) the possible lien,
claim or encumbrance in favor of [**], against certain rights to payment under
that certain [**] Agreement by and between Transol USA Inc. and [**], dated as
of [**], pursuant to that certain stop notice dated as of [**], in the amount of
[**], and (ii) any lien, claim or encumbrance in favor of [**], against certain
rights to payment under that certain [**] Agreement, by and between Transol USA
Inc. and [**], dated as of [**] in an amount not to exceed [**].
The provisions of this Section 6 shall survive until February 28, 2006.
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to each of the Sellers, as the date hereof and as of the
Closing Date, as follows:
(a) DUE ORGANIZATION. Purchaser (i) is duly organized
corporation, validly existing and in good standing under the laws of the State
of Delaware, (ii) has all requisite corporate power and authority to own and
lease property and to carry on its business as now being conducted and (iii) is
duly qualified or authorized to conduct business and is in good standing in such
jurisdictions in which the character or location of any property owned or leased
by it requires such qualification or authorization except where failure to be so
qualified or authorized in any jurisdiction has not or would not have a Material
Adverse Effect.
(b) CORPORATE AUTHORITY. Purchaser has the full power, authority
and legal right to execute and deliver this Agreement (and all agreements
executed and delivered by it in connection herewith) and to perform all
transactions contemplated by this Agreement (and by all agreements executed and
delivered by it in connection herewith). Furthermore, Purchaser has duly
authorized by all necessary corporate, stockholder, member, or other acts
required on the part of Purchaser, the execution, delivery and performance of
this Agreement (and all agreements executed and delivered by it in connection
herewith), and has duly executed and delivered this Agreement (and all
agreements executed and delivered by it in connection herewith). This Agreement
(and each agreement executed and delivered by it in connection herewith),
assuming due authorization, execution and delivery by each other party hereto
(and thereto), constitutes Purchaser's legal, valid and binding obligation
enforceable in accordance with its terms.
(c) CONDITION OF THE PURCHASED ASSETS. Purchaser and its
representatives and agents have had and have exercised, prior to the date
hereof, the right to make all inspections and investigations of the Purchased
Assets deemed necessary or desirable by Purchaser. Purchaser is purchasing the
Purchased Assets based solely on the results of its inspections and
investigations and on the representations and warranties of Sellers expressly
set forth in this Agreement. In light of these inspections and investigations
and the representations and warranties made to Purchaser by Sellers in Sections
6 and 7 herein, Purchaser is relinquishing any right to any claim based on any
representations and warranties, other than those specifically included in
Sections 6 and 7. Any claims Purchaser may have for breach of representation or
warranty shall be based solely on the representations and warranties of Sellers
set forth in Sections 6 and 7 herein. All warranties of habitability,
merchantability and fitness for any particular purpose, title, possession, quiet
enjoyment and all other warranties arising under the Uniform Commercial Code (or
similar foreign Laws), are hereby waived by Purchaser.
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(d) NO CONSENT REQUIRED. No consent, approval, authorization or
order of, or registration or filing with, or notice to, any court or
governmental agency or body having jurisdiction or regulatory authority over
Purchaser (or any of its properties) is required for (i) Purchaser's execution
and delivery of this Agreement (and each agreement executed and delivered by it
in connection herewith) or (ii) the consummation by Purchaser of the
transactions contemplated by this Agreement (and each agreement executed and
delivered by it in connection herewith) or, to the extent so required, such
consent, approval, authorization, order, registration, filing or notice has been
obtained, made or given (as applicable) and is still in full force and effect.
(e) NO BROKERS' OR FINDERS' FEES. No person or entity acting on
behalf of Purchaser or Sellers or any of their affiliates or under the authority
of any of them is or will be entitled to any brokers' or finders' fee or any
other commission or similar fee, directly or indirectly, from Purchaser or any
of its affiliates in connection with any of the transactions contemplated
hereby.
(f) NO KNOWLEDGE OF BREACH OF SELLER'S REPRESENTATIONS AND
WARRANTIES. Purchaser has reviewed each Seller's representations and warranties.
Purchaser has no current actual knowledge of any breach by any Seller or any of
their representations or warranties contained in this Agreement or the Xxxx of
Sale and Assignment.
(g) FINANCING. As of the date hereof, Purchaser has, and on the
Closing Date, Purchaser will have, sufficient funds available to deliver the
Purchase Price to Sellers and consummate the transactions contemplated by this
Agreement.
(h) CONFLICT OF INTEREST. Purchaser represents and warrants that
no current officer, director, employee or agent of any Seller has been or will
be retained or paid a fee, or otherwise has received or will receive any
personal compensation or consideration, by or from Purchaser or any of
Purchaser's officers, directors, employees, or agents in connection with the
obtaining, arranging or negotiation of this Agreement or other documents entered
into or executed in connection with this Agreement.
The provisions of this Section 7 shall survive until February 28, 2006.
8. TRANSITIONAL SERVICES AGREEMENT. At the Closing, Sellers shall
cause Transol USA Inc. to enter into, execute and deliver a transitional
services agreement substantially to the effect set forth in EXHIBIT E (the
"TRANSITIONAL SERVICES AGREEMENT") to enable Purchaser to assume and integrate
the Purchased Assets. Purchaser shall be responsible for all direct costs
incurred by Transol USA and the Debtors in providing the transitional services
under the Transition Services Agreement.
9. EXPENSES. Except as provided in the next sentence, Purchaser
and Sellers shall each bear their own expenses incurred in connection with the
transactions contemplated by this Agreement. Notwithstanding the foregoing, if
either party breaches this agreement, the breaching party shall be responsible
for the costs and expenses, including reasonable attorneys' fees, incurred by
the other party in enforcing this Agreement against such breaching party.
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10. ASSIGNMENT OF CONTRACTS AND APPROVALS FOR UNINSTALLED
APPROACHES. Purchaser shall perform all of Transol USA's obligations under each
of the contracts identified on Schedule 10A (the "CONTRACTS") from the Closing
Date through January 15, 2006. Purchaser shall have the continuing obligation
after the Closing Date through January 15, 2006 to diligently use commercially
reasonable efforts to obtain each of the municipalities party to the Contracts
acknowledgment of the assignment and acknowledgment that such municipality will
not exercise any optional right to terminate its respective contract on or
before January 15, 2006 ("AFFIRMATION STATEMENT") and, upon obtaining each
Affirmation Statement, the Purchaser shall promptly notify the Sellers.
Purchaser shall have the continuing obligation after the Closing Date through
January 15, 2006 to diligently use commercially reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary for it to do under applicable laws to obtain written confirmation
("DESIRED INSTALLATION CONFIRMATION") from each of the municipalities party to
the Contracts that such municipality continues to have an interest in having a
traffic camera system at each of the approaches listed on Schedule 10B
("UNAPPROVED APPROACH") that pertain to such municipality or at an alternative
approach within such municipality and, upon obtaining each Desired Installation
Confirmation, the Purchaser shall promptly notify the Sellers.
11. TRANSFER TAXES. Purchaser shall pay all sales, use, excise,
stamp, documentary, filing, recording, transfer or similar fees or taxes or
governmental charges, including any Goods and Services Tax ("GST"), as levied by
any taxing authority or governmental agency in connection with the transfer of
Purchased Assets contemplated by this Agreement (collectively, "Transaction
Taxes"). All prices or other sums payable or consideration to be provided under
this contract are exclusive of Transaction Taxes. As soon as reasonably
practicable but in any event within sixty (60) days after the Closing Date, (i)
Purchaser shall deliver to each of the Sellers a copy of Purchaser's resale
certificate or other evidence that these transactions are exempt from sales tax,
or (ii) Purchaser shall remit to each of the Sellers any sales tax due as a
result of these transactions. Sellers hereby agree to file all necessary
documents with respect to such amounts in a timely manner. The Sellers
acknowledge and agree that this Agreement will be made outside Australia and,
accordingly, GST liability will arise as a result of the transactions
contemplated hereby. Notwithstanding the forgoing, if for any reason Sellers are
responsible for any Transaction Taxes, Purchaser shall reimburse Sellers for
such Transaction Taxes within thirty days following delivery of an invoice for
the same.
12. NOTICES. Any notice or other communication provided for
herein or given hereunder to a party hereto shall be in writing, and shall be
deemed given when personally delivered to a party set forth below or when sent
by telecopy providing a transmission confirmation (provided that such notice is
immediately sent by a recognized overnight delivery service), or three (3) days
after mailed by first class mail, registered, or certified, return receipt
requested, postage prepaid, or when delivered by nationally-recognized overnight
delivery service, with proof of delivery, delivery charges prepaid, in any case
addressed as follows:
To Sellers:
Alleasing Finance Australia Limited
Lv 00 Xxxxxxx 0 Xxxxxxxxx Xxxxx
Xxxxxx XXX 0000
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Australia
Attn: Xxxx Xxxxxx, Chief Risk Officer
Fax: 00 00 0000 0000
and
Xxxxxxx Xxxxxx Xxxx,
Receiver and Manager for Transol Group
Xxxx Partners
Xxxxx 00, Xxxxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxxx Xxxxx
GPO Box 5151
Xxxxxx XXX 0000
Xxxxxxxxx
Fax: 00 00 0000 0000
with a copy to:
Winston & Xxxxxx, LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
To Purchaser:
Xxxxxx Traffic Systems, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxxxx, Esq., General Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx, Xxxxx & Xxxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
13. NO PERSONAL LIABILITY. The Receivers will not incur any personal
liability whatsoever under this document or under any deed, instrument or
document entered into under or in connection with it."
14. LIMITATION ON LIABILITY. Notwithstanding anything to the
contrary, neither Sellers' nor Purchaser's liability for any breach of this
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Agreement, including any breach of any of the representations and warranties
contained in Sections 6 and 7 herein, shall not exceed the Purchase Price (as
adjusted).
15. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement, together with the schedules
and exhibits attached hereto, constitutes the entire agreement of the parties
hereto regarding the purchase and sale of the Purchased Assets, and all prior
agreements, understandings, representations and statements, oral or written, are
superseded hereby.
(b) CAPTIONS. Section captions used in this Agreement are for
convenience only, and do not affect the construction of this Agreement.
(c) COUNTERPART EXECUTION. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and all of which
shall together constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile transmission
shall be effective as delivery of a manually executed counterpart thereof and
shall be deemed an original signature for all purposes.
(d) SEVERABILITY. If any provision of this Agreement shall for
any reason be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid or unenforceable provision
had never been contained in this Agreement.
(e) FURTHER ASSURANCES. At any time or from time to time after
the Closing, without further consideration, Sellers shall, at the request of
Purchaser, execute and deliver all further instruments and documents and take
all such further actions as Purchaser may reasonably request in order to
evidence or effect the consummation of the transactions contemplated by this
Agreement and to put Purchaser in possession of, and to vest in Purchaser, good,
valid and unencumbered title to the Purchased Assets (including the transfer to
Purchaser of any security interest retained by Seller in any of the Purchased
Assets, and including obtaining and delivering to Purchaser any and all consent
and waivers necessary or appropriate for consummation of the transactions
contemplated by this Agreement).
(f) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
Purchaser and Sellers. No waiver by any party hereto of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(g) GOVERNING LAW; EFFECTIVENESS. This Agreement shall be
governed by and interpreted in accordance with the laws of the State of
California (without reference to conflicts of law principles). This Agreement
will be made and come into effect in the United States upon Purchaser's
execution hereof (with Purchaser being the final signatory).
(h) WAIVER OF TRIAL BY JURY. SELLERS AND PURCHASER HEREBY
EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE
11
OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, OR IN
ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE
PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO
OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. SELLERS AND
PURCHASER HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT
AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO
WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
(i) CONSTRUCTION. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean "including without limitation".
(j) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person or entity other than the parties hereto
and their respective successors and permitted assigns.
(k) SUCCESSOR AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. Neither party may assign its rights or
interests hereunder without providing the other party with prior written notice;
provided, however, that Purchaser shall be entitled to assign its rights under
this agreement to an entity wholly-owned by it. Neither party may delegate all
or any of its obligations or duties hereunder, without the prior written consent
of the other party.
(l) CONFIDENTIALITY. Sellers agree that they will hold in
confidence all information, data and documents obtained by them or any of their
representatives from any representative, officer or employee of each other, and
that none of them nor any of their representatives will disclose any such
information, data or documents to any third party and none of them will discuss
this Agreement or the transactions contemplated hereby with any party other than
officers, employees, agents and representatives of the party or their legal
counsel and financing sources deemed necessary to the completion of the
transactions described herein, except that they may disclose (a) that this
transaction has taken place, the date thereof and the names of the parties to
this transaction and, with respect to customers of Debtors and/or Transol USA
who are parties to Assumed Contracts, such information as may be necessary or
appropriate to retain such customers and/or perform its obligations under the
Assumed Contracts, and (b) information about this transaction if and as required
by U.S. securities or other laws or regulations. Notwithstanding the forgoing,
Sellers may disclose confidential information to Transol USA and its
representatives, employees, officers and directors to the extent necessary to
12
enable Transol USA to perform services under the Transition Services Agreement.
Debtors shall cause Transol USA to agree to be bound by the provisions of this
Section 15(l). Notwithstanding anything to the contrary in this Agreement, the
parties hereto each agree to keep the terms of this Agreement as they relate to
[**] and [**] confidential except to the extent required by U.S. Securities or
other laws or regulations.
[Signature Page Follows]
13
SIGNATURE PAGE TO PURCHASE AND SALE AGREEMENT
IN WITNESS WHEREOF, Purchaser and Sellers have caused this Agreement
to be executed as of the day and year first above written.
SELLERS:
ALLEASING FINANCE AUSTRALIA, LIMITED TRANSOL HOLDINGS PITY LIMITED
(receivers and managers appointed
acting by one of its joint and
several recivers and managers
By Signature:
----------------------------------- ------------------------
Name Title XXXXXXX XXXXXX XXXX,
--------------------------------- as Receiver and Manager
Title
--------------------------------
TRANSOL PTY LIMITED (receivers and TRANSOL CORPORATION LIMITED
managers appointed) acting by one of (receivers and managers appointed)
its joint and several receivers and acting by one of its joint and
managers several receivers and managers
Signature: Signature:
---------------------------- ------------------------
Title: XXXXXXX XXXXXX XXXX, Title: XXXXXXX XXXXXX XXXX,
as Receiver and Manager as Receiver and Manager
PURCHASER:
XXXXXX TRAFFIC SYSTEMS, INC.
By
---------------------------------
Name
---------------------------------
Title
---------------------------------
Signature Page To Purchase and Sale Agreement
SCHEDULE I
----------
PURCHASED ASSETS
----------------
1. Australian Patent Application 00000/00, Xxxxxx Xxxxxx Patent Application
10/430032, and International Application PCT/AU 2004 / 000572, and the
underlying invention described therein, and all divisions, renewals,
reissues, continuations and continuations-in-part thereof, and all Letters
Patent of the United States which have been or may be granted thereon and
all foreign counterparts thereof, together with the right to xxx and
recover damages for future or past infringements thereof
2. The business name "Transol Group", and any and all trademarks, service
marks, trade names and the like, whether registered or at common law,
associated with the business name along with the good will associated
therewith.
3. All other "technical know how" which is the property of the Transol Group,
including but not limited to all technical papers, research and development
documents, invention records, experimental and engineering reports, pilot
designs, production designs, production specifications, raw material
specifications, quality control reports and specifications, drawings,
photographs, models, tools, parts, algorithms, processes, methods, market
and competitive analysis, or other information that are the property of the
company, located in both North America and Australia other than related to
the CLNet product and associated business
4. The goodwill of the Transol business other than related to the CLNet
product and associated business
5. The Transol website, and the domain names used in connection therewith and
associated domain name registrations, including xxxxxxxxxxxx.xxx, and the
related web-page content; logos; slogans; common law and registered
copyrights; and unpublished work
6. Computer Source code for Red Light Traffic Camera System currently running
at all Transol intersections, and any and all related rights therewith, all
software implementations of algorithms, models and methodologies, whether
in source code or object code, and descriptions, flow-charts and other work
product used to design, plan, organize and develop any of the foregoing,
and all documentation, including user manuals and training materials,
relating to any of the foregoing.
7. Computer Source code for the Transol Violation Processing System, and any
and all related rights therewith, all software implementations of
algorithms, models and methodologies, whether in source code or object
code, and descriptions, flow-charts and other work product used to design,
plan, organize and develop any of the foregoing, and all documentation,
including user manuals and training materials, relating to any of the
foregoing.
8. Computer Source Code for the Transol Mobile Speed Camera, and any and all
related rights therewith, all software implementations of algorithms,
models and methodologies, whether in source code or object code, and
1
descriptions, flow-charts and other work product used to design, plan,
organize and develop any of the foregoing, and all documentation, including
user manuals and training materials, relating to any of the foregoing.
9. Computer Firmware Source Code for all hardware boards, including inductive
phase sensor, camera controller, laser presence detector, mobile speed
camera controller, look down laser, and any and all related rights
therewith, all software implementations of algorithms, models and
methodologies, whether in source code or object code, and descriptions,
flow-charts and other work product used to design, plan, organize and
develop any of the foregoing, and all documentation, including user manuals
and training materials, relating to any of the foregoing.
CONTRACTUAL ASSETS
------------------
1. Northglenn, Colorado, Automated Traffic Enforcement Lease and Service
Agreement dated March 28, 2003, by and between Transol USA Inc. and The
City of Northglenn, Colorado.
2. Agreement dated July 23, 2003, by and between Transol USA Inc. and the City
of Whittier, California.
3. Agreement dated November 25, 2003, by and between Transol USA Inc. and The
City of Santa Fe Springs, California.
4. Agreement for Red Light Camera Enforcement System Services between the City
of Roseville and Transol USA Inc. dated December 17, 2003, by and between
Transol USA Inc. and City of Roseville, a municipal corporation.
5. Beta Test Agreement dated December 18, 2003, by and between Transol USA
Inc. and the City of Berkeley, California.
6. Beta Test Agreement with Payment Options dated January 23, 2004, by and
between Transol USA Inc. and the City of Xxxxxxxxx.
7. Transol Dual Red Light Photo Enforcement Agreement dated October 4, 2004,
by and between Transol USA Inc. and the City of Beaumont, California.
8. Professional Services Photo Enforcement Agreement with Town of Xxxxxxxxx
Xxxx, Xxxxxxxx dated January 10, 2005 by and between Transol USA Inc. and
Town of Riverdale Park, Maryland.
RECEIVABLES AND UNBILLED REVENUES
---------------------------------
1. Receivables at Closing
3. Unbilled work in progress revenue
2
PLANT AND EQUIPMENT ASSETS
--------------------------
1. Contract related plant and equipment located at the following contract
sites (including the manufacturers warranties to the extent assignable):
No of Sets of No. of
Location Equipment Approaches
-------- -------------------- ----------
City of NorthGlenn, CO 2 2
City of Whittier, CA 2 4
City of Davenport, IA 5 5
City of Santa Fe Springs, CA 3 8
City of Roseville, CA 4 5
City of Berkeley, CA 3 8
City of Riverdale Park, MD - -
City of Beaumont, CA - -
TOTAL 19 32
2. Plant and equipment and office furniture located at Phoenix head office
3. Plant and equipment and office furniture located at the Tempe Warehouse
4. VPS Test System:
5. The following equipment located in the Melbourne office:
A. Two IBM X-Series 305 servers (1 Rack units)(+- 3 years old)
B. IBM X-Series 205 e-server(Desktop tower)(+-2 years old)
C. Source code server: pretty basic, 3-4 year old IBM desktop machine.
D. CISCO Pix router used to establish the VPN link to the Phoenix.
INVENTORY ASSETS INCLUDING WORK IN PROGRESS
-------------------------------------------
1. Inventory located in warehouse in Tempe, Phoenix
2. Work in progress in the books of Transol USA Inc
3. All prototype assets, including laser speeding devices
3
- Laser presence detector
- Scalextrix car track- red light test bed
- Version 2 of the software presence detector (image processing solution
for tracking vehicles through an intersection)
4
SCHEDULE II
-----------
EXCLUDED PERSONAL PROPERTY
--------------------------
1. Cash at Bank
2. Current insurance policies of the Transol Group
3. Prepayments, including general and insurance
4. Bid deposits
5. Security deposits
6. Transol Group inter-company debts and loans
7. Investments in subsidiary companies
8 Other assets not specified as "included" in the tender
9. The financial books and records of the Transol Group (reasonable access and
where appropriate photocopies will be given to the successful purchaser,
but title will remain with the Transol Group)
10. All "technical know how" related to the CLNet product and associated
business which is the property of the Transol Group, including all
technical papers, research and development documents related to the CLNet
product and associated business that are the property of the company,
located in both North America and Australia
6. The goodwill of the Transol business related to the CLNet product and
associated business
8. Computer Source for the Computerised License Testing System currently
installed in 3 driving schools in Singapore
9. 10 multimedia license testing kiosks in relation to contract with
Department of Motor Transport in Bahrain consist of:
- stainless steel multimedia kiosk
- IBM Think Centre P4 2.8Ghz
- 17" TFT Microtouch touch screens
1
SCHEDULE 2(a)
ADJUSTMENT TO PURCHASE PRICE
1. Pursuant to Section 2(a) of the Purchase and Sale Agreement, $1,583,198.94 of
the Purchase Price (the "ESCROWED PURCHASE PRICE") shall be deposited into an
escrow account (the "ESCROW ACCOUNT"), which together with the $200,000
previously deposited by Purchaser shall be subject to adjustment as follows:
a) An amount of up to [**] of the Escrowed Purchase Price (the "[**]
ESCROW AMOUNT") will be withheld from the Purchase Price and paid into
the Escrow Account pending settlement with [**] regarding the possible
lien, claim or encumbrance in favor of [**], against certain rights to
payment under that certain [**] Agreement by and between Transol USA
Inc. and [**], dated as of [**], pursuant to that certain stop notice
dated as of [**], in the amount of [**] (the "[**] Stop Notice"). The
[**] Escrow Amount shall be made available solely to satisfy any
claims arising out of the [**] STOP NOTICE. In the event that, on or
before [**], the Sellers are able to obtain a full and complete
release of the [**] Stop Notice in exchange for any settlement amount
(the "[**] Settlement Amount"), the Purchase Price shall be reduced by
an amount equal to the [**] SETTLEMENT AMOUNT, and an amount equal to
the difference between the [**] Escrow Amount and the [**] Settlement
Amount shall be released from the Escrow Account and paid to the
Sellers as part of the Purchase Price and the [**] Settlement Amount
shall be returned to Purchaser who shall be solely responsible for its
payment and the [**] Stop Notice. If the Sellers, however, are unable
to obtain a full and complete release of the [**] Stop Notice on or
before [**], the Purchase Price shall be adjusted accordingly by the
deduction from the Escrowed Purchase Price of the [**] Escrow Amount.
The [**] Escrow Amount shall thereafter be released from the Escrow
Account and returned to Purchaser who will remain primarily liable for
any payments to [**] under the [**] Stop Notice.
b) An amount of up to [**] of the Escrowed Purchase Price (the "[**]
ESCROW AMOUNT") will be withheld from the Purchase Price pending the
settlement with [**] regarding the release by [**] of any lien, claim,
encumbrance or stop notice perfected by [**] relating to that certain
[**] Agreement, by and between Transol USA and [**] dated as [**] (the
"[**] STOP NOTICE"). The [**] Escrow Amount shall be made available
solely to satisfy any claims arising out of the [**] Stop Notice. Upon
the earlier to occur of (i) the lapse of all applicable periods of
time within which [**] could perfect any lien or stop notice with
respect to the [**] Stop Notice, and (ii) a full and complete release
by [**] of the [**] Stop Notice in exchange for a settlement payment
(the "[**] SETTLEMENT AMOUNT") on or before [**], the Purchase Price
shall be adjusted as follows: In the event of the occurrence of (i)
above, no adjustment will be made and the [**] Escrow Amount shall be
released from the Escrow Account and paid in full to Sellers as part
of the Purchase Price. In the event of the occurrence of (ii) above,
the Purchase Price shall reduced by an amount equal to the [**]
Settlement Amount, and an amount equal to the difference between the
[**] Escrow Amount and the [**] Settlement Amount shall be released
from the Escrow Account and paid to Sellers as part of the Purchase
Price and the [**] Settlement Amount shall be returned to Purchaser
who shall be solely
1
responsible for its payment and the [**] Stop Notice. If the Sellers,
however, are unable to obtain a full and complete release of the [**]
Stop Notice on or before [**], the Purchase Price shall be adjusted
accordingly by the deduction from the Escrowed Purchase Price of the
[**] Escrow Amount, and the [**] Escrow Amount shall thereafter be
released from the Escrow Account and returned to Purchaser who will
remain primarily liable for any payments to [**] under the [**] Stop
Notice.
2. An additional $1,500,000 of the Escrowed Purchase Price will be reserved
in the Escrow Account pending the determination of the following adjustments to
the Purchase Price:
a) Adjustment by an amount of $50,000 for each installed approach under
any Contract that is actually terminated on or before January 15, 2006
by the municipality with or without cause pursuant to an optional
right in favor of the municipality to terminate the contract without
cause or because of the assignment of such contract to Purchaser by
Transol USA Inc. Any such terminated Contract would be deemed to be an
Excluded Asset, including any plant and equipment associated with such
contract, if any.
b) Adjustment by an amount of $20,000 for each uninstalled approach under
any Contract that is actually terminated on or before January 15, 2006
by the municipality with or without cause pursuant to an optional
right in favor of the municipality to terminate the contract without
cause or because of the assignment of such contract to Purchaser by
Transol USA Inc. Any such terminated contract would be deemed to be an
Excluded Asset, including any plant and equipment associated with such
contract, if any.
c) Adjustment by an amount of $20,000 for each of the Unapproved Approach
if a Desired Installation Confirmation is not obtained and an
alternative site not proposed by the relevant municipality on or
before January 15, 2006, provided, however, that no such adjustment
shall be made for any Unapproved Approach if an adjustment has
previously been made under Section 2(b) with respect to such
Unapproved Approach.
d) Notwithstanding anything to the contrary herein, the adjustments under
this Agreement attributable to the Contract with the Town of Riverdale
Park shall not in the aggregate exceed $120,000 [**].
e) Notwithstanding any of the adjustments under this Section 2, the
minimum purchase price would not be less than $500,000 subject only to
adjustments for the [**] Escrow Amount, the [**] Escrow Amount and the
amount of any other liens, security interests and other encumbrances
on the Purchased Assets which have not been discharged by Sellers
("Other Liens" and, individually, an "Other Lien").
f) If Purchaser determines that there are any Other Liens on the
Purchased Assets and provides the Sellers with written notice thereof
(which notice shall include a copy of the record of any such Other
Liens), the Purchase Price shall be adjusted accordingly by the
deduction from the Escrowed Purchase Price of the amount of such Other
Lien or Liens (the "Other Lien Amount"), and the Other Lien Amount
shall thereafter be released from the Escrow Account and returned to
Purchaser who will remain primarily liable for any payments to
discharge the Other Liens.
2
3. The Escrow Agent shall pay to Sellers from the Escrow Account as
follows:
A. Upon receipt of an Affirmation Statement an amount equal to $25,000
for each installed approach covered by such contract and $10,000 for
each uninstalled approach covered by such contract ($5,000 for each
Uninstalled Approach in Riverdale Park), excepting any Unapproved
Approaches for which a Desired Installation Confirmation has not been
received.
B. Upon receipt of both an Affirmation Statement and a Desired
Installation Confirmation, an amount equal to $10,000 for each
uninstalled approach covered by such contract ($5,000 for each
Uninstalled Approach in Riverdale Park).
C. The balance of the Purchase Price due as of January 15, 2006.
D. Interest on any amounts earned on the Purchase Price by Escrow Agent.
4. If Purchaser enters into a new contract with a municipality that terminated
any contract under Section 2(a) above on or before January 15, 2006, (the
"EXISTING CONTRACTS") and for which a price adjustment was made to the
Escrowed Purchase Price pursuant thereto, within 12 months of such
termination, if the new contract is at least 20% more favorable to the
municipality than the Existing Contracts, the Purchase Price shall be
adjusted upward by the payment by Purchaser to Sellers of an additional
$30,000 per approach covered by such new contract up to the number of
approaches for which Purchaser received a price reduction upon the
installation of such approaches. If such Existing Contracts are on terms
that are less than 20% favorable to the municipality, the Purchase Price
shall be adjusted upwards by the payment to Sellers by Purchaser of an
additional $50,000 per approach covered by such new contract up to the
number of approaches for which Purchaser received a price reduction upon
the installation of such approaches. Purchasers shall pay such increase in
the Purchase Price within ten days of such new contract.
5. If Purchaser enters into a new contract with a municipality that terminated
any contract under Section 2(b) above on or before January 15, 2006, (the
"PREVIOUS CONTRACTS") and for which a price adjustment was made to the
Escrowed Purchase Price pursuant thereto, within 12 months of such
termination, if the new contract is at least 20% more favorable to the
municipality than the Previous Contracts, the Purchase Price shall be
adjusted upward by the payment to Sellers by Purchaser of an additional
$12,000 per approach covered by such new contract ($6,000 for each approach
in Riverdale Park) up to the number of approaches for which Purchaser
received a price reduction upon the installation of such approaches. If
such Previous Contracts are on terms that are less than 20% favorable to
the municipality, the Purchase Price shall be adjusted upwards by the
payment to Sellers by Purchasers of an additional $20,000 per approach
covered by such new contract ($10,000 for each approach in Riverdale Park)
up to the number of approaches for which Purchaser received a price
reduction upon the installation of such approaches. Purchasers shall pay
such increase in the Purchase Price within ten days of such new contract.
3
6. If Purchaser obtains approval to install any Unapproved Approach or to
install an alternative approach within such municipality after January 15,
2006 and before December 31, 2006, the Purchase Price shall be increased by
an amount equal to the amount by which the Purchase Price was previously
reduced pursuant to 2(c) above for each such Unapproved Approach or
alternative approach. Purchasers shall pay such increase in the Purchase
Price within ten days of such approval.
7. Notwithstanding anything herein to the contrary, (A) there shall be no
adjustment to the Purchase Price with respect to any contracts that (i) are
terminated by Purchaser, (ii) that are terminated by the municipality in
connection with any material breach by Purchaser of any of the terms of the
contracts, or (iii) that are cancelled by the municipality after Purchaser
becomes subject to any bankruptcy or insolvency proceeding (except for
involuntary proceedings brought against Purchaser which proceedings are
terminated within 90 days) and, (B) any adjustments to the Purchase Price
shall be determined by Seller and Purchaser at any time on or before
January 31, 2006, and upon the expiration of such time no further
adjustments shall be made to the Purchase Price and the remainder of the
Escrowed Purchase Price shall be paid to the Sellers.
4
SCHEDULE 10A
------------
LIST OF CONTRACTS
-----------------
1. Northglenn, Colorado, Automated Traffic Enforcement Lease and Service
Agreement dated March 28, 2003, by and between Transol USA Inc. and The
City of Northglenn, Colorado.
2. Agreement dated July 23, 2003, by and between Transol USA Inc. and the City
of Whittier, California.
3. Agreement dated November 25, 2003, by and between Transol USA Inc. and The
City of Santa Fe Springs, California.
4. Agreement for Red Light Camera Enforcement System Services between the City
of Roseville and Transol USA Inc. dated December 17, 2003, by and between
Transol USA Inc. and City of Roseville, a municipal corporation.
5. Beta Test Agreement dated December 18, 2003, by and between Transol USA
Inc. and the City of Berkeley, California.
6. Beta Test Agreement with Payment Options dated January 23, 2004, by and
between Transol USA Inc. and the City of Xxxxxxxxx.
7. Transol Dual Red Light Photo Enforcement Agreement dated October 4, 2004,
by and between Transol USA Inc. and the City of Beaumont, California.
8. Professional Services Photo Enforcement Agreement with Town of Xxxxxxxxx
Xxxx, Xxxxxxxx dated January 10, 2005 by and between Transol USA Inc. and
Town of Riverdale Park, Maryland.
1
SCHEDULE 10B
------------
LIST OF UNAPPROVED APPROACHES
-----------------------------
1. Santa Fe Springs, Telegraph & Bloomfield, East Bound Approach
2. Santa Fe Springs, Telegraph & Bloomfield, West Bound Approach
3. Beaumont, Beaumont & 4th, North Bound Approach
4. Beaumont, Beaumont & 4th, East Bound Approach
5. Beaumont, Beaumont & 5th, North Bound Approach
6. Beaumont, Beaumont & 5th, West Bound Approach
7. Xxxxxxxxx Xxxx, Xxxxxxxxxx & Xxxx Xxxx Xxx, Xxxx Bound Approach
8. Xxxxxxxxx Xxxx, Xxxxxxxxxx & Xxxx Xxxx Xxx, Xxxx Bound Approach
9. Riverdale Park, Jefferson & Kenilworth, South Bound Approach
10. Riverdale Park, Jefferson & Kenilworth, North Bound Approach
11. Xxxxxxxxx Xxxx, Xxxxxxxxx & Xxxxxxxxxx, Xxxxx Bound Approach
12. Riverdale Park, Edmonston & Kenilworth, South Bound Approach
1
EXHIBIT A
---------
FORM OF XXXX OF SALE AND ASSIGNMENT
-----------------------------------
XXXX OF SALE AND ASSIGNMENT
---------------------------
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and pursuant to that certain Purchase and Sale Agreement
dated as of [August] ___, 2005 (the "PURCHASE AGREEMENT"), by and among Transol
Holdings Pty Limited (ACN 100 078 046) (receivers and managers appointed)
("TRANSOL HOLDINGS"), Transol PTY Limited (ABN 65 095 538 828) (receivers and
managers appointed) ("TRANSOL PTY"), Transol Corporation Limited (ABN 73 089 224
402) (receivers and managers appointed) ("TRANSOL LIMITED", and collectively
with Transol Holdings and Transol PTY, "DEBTORS"), and Alleasing Finance
Australia Limited (ABN 94 003 421 136), formerly known as RentWorks Limited
("ALLEASING" and together with Debtors, "SELLERS") and Xxxxxx Traffic Systems,
Inc., a Delaware corporation ("PURCHASER"), Sellers hereby irrevocably and
unconditionally sell, convey, transfer, assign and deliver to Purchaser, its
successors and assigns forever to its and their own use, all legal, beneficial
and other right, title and interest of Sellers and Transol USA Inc. in and to
the Purchased Assets more fully identified on Schedule I hereto, free and clear
of all liens and encumbrances upon the terms and as more particularly described
and set forth in the Purchase Agreement, to have and to hold the same unto
Purchaser, its successors and assigns, to or for its use forever. Unless defined
herein, capitalized terms shall have the meanings attributed to them under the
Purchase Agreement.
Purchaser accepts such right, title and interest in the Purchased Assets on
an "AS IS" AND "WHERE IS" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO
MERCHANTABILITY, HABITABILITY, VALUE, USEFUL LIFE, FITNESS FOR INTENDED USE,
TITLE, POSSESSION, QUIET ENJOYMENT, AND ALL OTHER WARRANTIES ARISING UNDER THE
UNIFORM COMMERCIAL CODE (OR SIMILAR FOREIGN LAWS) OR SIMILAR REPRESENTATIONS AND
WARRANTIES, EXCEPT IN ALL RESPECTS THOSE REPRESENTATIONS OR WARRANTIES WHICH ARE
EXPRESSLY SET FORTH IN THE PURCHASE AGREEMENT.
There shall be excluded from this Xxxx of Sale and Assignment the Excluded
Assets.
This Xxxx of Sale and Assignment, and in particular the Sellers' sale,
conveyance, transfer and assignment of the Purchased Assets, as provided herein,
shall be effective only upon the Closing of the transactions contemplated by the
Purchase Agreement and delivery of the Purchase Price to Sellers as provided in
the Purchase Agreement.
This Xxxx of Sale and Assignment shall be governed and construed in
accordance with the laws of the State of California, without reference to the
conflict of law rules or principles of law of such State.
1
2
IN WITNESS WHEREOF, the parties have executed this Xxxx of Sale as of
August 31, 2005.
ALLEASING FINANCE AUSTRALIA, LIMITED TRANSOL HOLDINGS PITY LIMITED
(receivers and managers appointed
acting by one of its joint and
several recivers and managers
By Signature:
----------------------------------- ------------------------
Name Title XXXXXXX XXXXXX XXXX,
--------------------------------- as Receiver and Manager
Title
--------------------------------
TRANSOL PTY LIMITED (receivers and TRANSOL CORPORATION LIMITED
managers appointed) acting by one of (receivers and managers appointed)
its joint and several receivers and acting by one of its joint and
managers several receivers and managers
Signature: Signature:
---------------------------- ------------------------
Title: XXXXXXX XXXXXX XXXX, Title: XXXXXXX XXXXXX XXXX,
as Receiver and Manager as Receiver and Manager
XXXXXX TRAFFIC SYSTEMS, INC.
By
---------------------------------
Name
---------------------------------
Title
---------------------------------
2
EXHIBIT B
---------
FORM OF ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
--------------------------------------------------
PATENT AND TRADEMARK TRANSFER STATEMENT
---------------------------------------
Effective as of August 31, 2005
THIS TRANSFER STATEMENT ("TRANSFER STATEMENT") is presented pursuant to the
provisions of Section 9-619 of the Uniform Commercial Code, effective in
California ("UCC"). As required by the UCC, upon receipt of this Transfer
Statement, the United States Patent and Trademark Office shall (i) accept the
Transfer Statement, and (ii) promptly amend its records to reflect the transfer
described herein.
1. SECURED OBLIGATIONS. Transol PTY Limited (ABN 65 095 538 828), a
corporation incorporated in Victoria, Australia (receivers and managers
appointed) ("DEBTOR"), certain affiliates of Debtor and Alleasing Finance
Australia Limited (ABN 94 003 421 136), a corporation registered in New South
Wales, Australia formerly known as RentWorks Limited ("SECURED PARTY"), entered
into that certain RentWorks Agreement (as amended, the "MASTER RENTAL
AGREEMENT"), pursuant to which Alleasing leased to Debtor and its affiliates
certain equipment and extended financial accommodations to or for the direct or
indirect benefit of Debtor and its affiliates. To secure the payment and
performance of the obligations of Debtor and its affiliates under the Master
Rental Agreement, Alleasing and Debtors entered into that certain Deed of Charge
and Debtor and Alleasing entered into that certain Collateral Grant of Security
Interests in Patents and Trademarks, each dated as of even date with the Master
Rental Agreement (collectively, the "SECURITY AGREEMENTS"), whereby Debtor and
its affiliates granted to Alleasing a continuing perfected security interest in
and lien upon all the assets of Debtor and its affiliates (the "DEBTORS'
COLLATERAL"), including, among other things, the patent application filed with
the United States Patent and Trademark Office on May 5, 2003 in favor of Debtor
under the name Traffic Violation Detection, Recording and Evidence Processing
System as patent application number 10/430032 (the "TRANSFERRED PATENT").
2. DEFAULT. Debtor defaulted on its obligations to Secured Party with
respect to the Master Rental Agreement.
3. EXERCISE OF POST-DEFAULT REMEDIES. Secured Party has foreclosed upon the
Transferred Patent by selling the Transferred Patents and Trademarks, along with
other assets of the Debtor, to Xxxxxx Traffic Systems, Inc. ("Transferee") at a
private foreclosure sale pursuant to Section 9610 of the California Commercial
Code.
4. TRANSFEREE'S RIGHTS IN TRANSFERRED PATENTS AND TRADEMARKS. As a result
of Secured Party's foreclosure sale, and pursuant to the terms of that certain
Purchase and Sale Agreement dated as of August 31, 2005, Tranferee has acquired
all right, title and interest of Debtor in the Transferred Patent, and the
underlying invention described therein, and all divisions, renewals, reissues,
continuations and continuations-in-part thereof, and all Letters Patent of the
United States which have been or may be granted thereon and all foreign
counterparts thereof, including International Application PCT/AU 2004 / 000572,
together with the right to xxx and recover damages for future or past
infringements thereof and to fully and entirely stand in the place of the Debtor
in all matters related thereto.
5. NAMES; MAILING ADDRESSES. The name and mailing address of Debtor,
Secured Party, and Transferee are as follows:
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Debtor:
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Xxxxxxx Xxxxxx Xxxx,
Receiver and Manager for Transol Pty Limited
Xxxx Partners
Xxxxx 00, Xxxxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxxx Xxxxx
GPO Box 5151
Xxxxxx XXX 0000
Xxxxxxxxx
Secured Party:
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Alleasing Finance Australian Limited
Lv 00 Xxxxxxx 0 Xxxxxxxxx Xxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Attn: Xxxx Xxxxxx, Chief Risk Officer
Transferee
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Xxxxxx Traffic Systems, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxxxx, Esq., General Counsel
Please be advised that nothing contained herein shall act as a waiver of
any of Secured Party's rights under the Master Rental Agreement or the Security
Agreements, any documents executed in connection therewith or applicable law,
all of which are expressly reserved.
ALLEASING FINANCE AUSTRALIA LIMITED
By
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Name
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Title
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EXHIBIT C
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List of instruments and documents to be provided by Sellers:
(a) duly executed copies of the Assignment of Intellectual Property
Rights;
(b) duly executed deed of release by Alleasing in full release of the
fixed and floating charges over the Purchased Assets (ASIC charge
numbers 1085953, 1085954 and 1085955) and executed ASIC Forms 312
in a form ready for lodgment with ASIC to record the release of
those fixed and floating charges;
(c) duly executed copies of the Transition Services Agreements; and
(d) copies of the Escrow Agreement duly executed by each of the
parties thereto.
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EXHIBIT D
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List of instruments and documents to be provided by Purchaser:
(a) duly executed copies of the Transition Services Agreements;
(b) good standing certificates for Purchaser; and
(c) copies of the Escrow Agreement duly executed by each of the
parties thereto.
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