Contract
Exhibit
2.1
This Asset Purchase Agreement (the
“Agreement”) is made and
entered into this 14th day of January, 2009, by and between PQH Wireless, Inc.,
a Nebraska corporation (“Buyer”), Xxxx Xxxxx (“Salem”) and VZ Wireless, LLC,
a Wisconsin limited liability company (“Seller” and collectively
referred to with Salem as the “Selling
Parties”).
BACKGROUND
A. Seller
owns various items of personal property used in the operation of a cellular
phone business operated at the locations specified on the Leased Real Property
Schedule, attached hereto as Schedule A.1 (the
“Business”).
B. Seller is
willing to sell, assign and transfer to Buyer and Buyer desires to purchase the
Purchased Assets, as hereinafter defined, and subject to all the terms and
conditions set forth in this Agreement; and Buyer has previously delivered an
advance payment of the Purchase Price (as defined below) in the amount of
$100,000 (the “Advance
Payment”).
C. Seller
desires to assign to Buyer, and Buyer desires to assume from Seller, the Assumed
Contracts, including the leases (the “Leases”) for the locations set
forth on the Leased Real Property Schedule (collectively, the “Premises”).
AGREEMENT
Now, Therefore, in consideration of the
foregoing facts and premises hereby made a part of this Agreement, and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF ASSETS
1.1 Sale and Purchase of
Assets. On the terms and subject to the conditions of this
Agreement, at the Closing (as hereinafter defined) Seller shall sell, assign,
transfer, convey and deliver to Buyer, free and clear of all liens,
encumbrances, pledges, charges or adverse claims of any kind or character, other
than Permitted Encumbrances (collectively, “Encumbrances”), and Buyer
shall purchase from Seller, all of the personal property and trade fixtures
located upon or used in the operation of the Business, including without
limitation the personal property and fixtures hereinafter described
(collectively, the “Purchased
Assets”):
(a) all of
the items of furniture, trade fixtures, removable leasehold improvements and
equipment used in connection with the Business;
(b) all of
Seller’s inventory of accessories associated with Cricket Communications, Inc.
(“Cricket”), existing at
the Premises on the Closing Date (other than the
Phone Inventory, as defined below);
(c) all of
the Seller’s signs used in connection with the Business;
(d) the cash
registers/computers used in connection with the Business located at the
Premises, and all software relating to the operation of the Business, including
without limitation software relating or pertaining to the accounting system used
in the Business located at the Premises (other than the TeleTracker POS system,
as described below);
(e) all of
Seller’s rights against its suppliers with respect to express or implied
warranties made in the sale to Seller of assets comprising any part of the
Purchased Assets;
(f) all of
Seller’s books, records, files and papers relating to the conduct of the
Business located at the Premises at any time prior to the Closing, other than
Seller’s corporate minute book and related corporate records;
(g) to the
extent transferable, all permits, authorizations and licenses used by Seller in
the conduct of the Business;
(h) all
contracts and agreements, whether oral or written, used by Seller in the conduct
of the Business that are set forth on Assumed Contracts Schedule, attached
hereto as Schedule
1.1(h) (all of such
contracts and agreements, being hereinafter collectively referred to as
the “Assumed Contracts”);
(i) any and
all goodwill associated with the Business and the Purchased Assets;
and
(j) any and
all other properties, assets and rights of Seller which are used in the Business
at the Premises and not expressly listed or referred to in Section
1.2.
1.2 Excluded Assets. The
following properties, assets and rights (collectively, the “Excluded Assets”) are
expressly excluded from the purchase and sale contemplated hereby and, as such,
are not be transferred to Buyer and shall not be included within the
definition of Purchased Assets: (a) all cash, including but not
limited to xxxxx cash, money-market, checking, savings and similar type
accounts, and cash equivalents of Seller as of the Closing Date, and all of
Seller’s accounts and notes receivable as of the Closing Date; (b) all of
Seller’s rights under the contracts and agreements not used in the conduct of
the Business or not included on Schedule 1.1(h); (c) all of
Seller’s right, title and interest in and to those items described on Schedule 1.2; (d) the online
based TeleTracker POS system sales tracker system (it being understood that
Buyer will apply for its own license to use said software); (e) wherever
located, warehoused inventories and inventories of handset telephones as used in the Business (the “Phone Inventory”);
(e) all intercompany receivables, intercompany contracts, and
all rebates due from Cricket for sales and contract entered into prior to the
Closing Date (it being understood that Buyer will enter into a new contract with
Cricket for the Premises); (f) all current and prior insurance policies and all
rights of any nature with respect thereto, including all insurance recoveries
thereunder and rights to assert claims with respect to any such insurance
recoveries; (g) all leased computer equipment including in-store processors,
direct access storage devices (DASDs), electronic funds transfer devices, and
store manager PCs/NCs; (h) all software, including all store systems software
and back office software owned or licensed to Seller, including without
limitation, software for self checkout and point of sale controllers and
registers; and (i) all trade names of Seller used in the Business.
1.3 Purchase Price and
Allocation. The purchase price (the “Purchase Price”) payable by
Buyer to Seller for the Purchased Assets will be One Million Eight Hundred
Twenty-Eight Thousand and No/100 Dollars ($1,828,000.00). Buyer will
pay to Seller the Purchase Price (less the Advance Payment) by wire transfer in
accordance with written instructions given by Seller to Buyer not less than two
(2) Business Days prior to the Closing Date. The fair market value of
the Purchased Assets and the allocation of the Purchase Price among the
Purchased Assets for purposes of Section 1060 of the Internal Revenue Code of
1986, as amended (the “Code”), shall be as set forth
in Schedule 1.3
attached hereto (the “Allocation”). The Allocation
shall be binding upon Buyer and Seller, and Buyer and Seller each agree to
report the sale and purchase of the Purchased Assets for all federal, state and
local tax purposes in a manner consistent with the Allocation and to file or
cause to be filed any and all forms required to properly report the Allocation
in a timely fashion.
1.4
Liabilities.
1.4.1 Assumed
Liabilities. Upon the terms and subject to the conditions of
this Agreement, Buyer agrees, effective at the Closing, to assume only the
following Liabilities related to the Premises (collectively, the “Assumed
Liabilities”):
i. except
as provided in Section 1.4.2, all liabilities for any actions commenced, or any
claims made, relating to the ownership of the Purchased Assets after the Closing
Date;
ii. all
liabilities arising under any Assumed Contracts relating to the existence or
performance of such contracts after the Closing Date, and all liabilities
arising under each of the post-closing Assumed Contracts (i.e., contracts
entered into after the Closing) after, in each case, the time such post-closing
Assumed Contract was assigned or assumed by Buyer; and
iii. except
as provided in Section 1.4.2, all other liabilities arising after the Closing
relating to the physical condition of the Purchased Assets as of the
Closing.
1.4.2 Retained
Liabilities. Notwithstanding any other provision in this
Agreement, Selling Parties shall retain and be responsible for the following
(collectively, the “Retained
Liabilities”):
i. all
liabilities related to the ownership or operation of the Business prior to the
Closing; and
ii. all
liabilities for taxes of Seller or taxes related to, imposed on, or arising from
the Premises, Business, or the Purchased Assets for any taxable period (or
portion thereof) on or prior to the Closing, except for (a) taxes attributable
to actions taken or failures to act after the Closing by Buyer, any of its
affiliates or any transferee of Buyer or any of its affiliates (other than any
such action expressly required or otherwise expressly contemplated by this
Agreement or with the written consent of Seller); or (b) real and personal
property taxes for the calendar year of the Closing attributable to the portion
of the year during which the respective real or personal property of the
Premises is owned by Buyer, its affiliates or any transferee of Buyer or its
affiliates.
1.5 Permitted
Encumbrances. As used in this Agreement, “Permitted Encumbrances” shall
mean: (i) real estate taxes and assessments and other governmental fees and
charges levied or imposed on, or assessed with respect to, any real property,
all or any portion of which comprises the Premises, which taxes, assessments,
fees or charges are (A) not due and payable as of the Closing Date, or (B) are
being contested in good faith and, in either case, for which taxes, assessments,
fees and charges appropriate reserves have been established in accordance with
GAAP; (ii) zoning codes or ordinances, building codes and other laws,
regulations, ordinances, decrees or orders regulating the use or occupancy of
any Premises that are not violated by the current use or occupancy of such
Premises; and (iii) easements, restrictions, covenants and conditions affecting
the title to the Premises that do not and shall not materially impair conduct of
Business at the Premises.
ARTICLE
II
CLOSING
2.1 Time and Place of
Closing. The closing (the “Closing”) shall be conducted
by facsimile and electronic transmission on the second (2nd) business day
following the Buyer entering into a dealer agreement with Cricket and the
satisfaction or waiver of any other conditions precedent specified in Article
VI, but in no event later than January 14, 2009 (“Closing
Date”). For purposes of this Agreement, the Closing
shall be deemed to occur and be effective as of 11:59 P.M., Eastern Daylight
Time, on the Closing Date.
2.2 Seller’s
Deliveries. At the Closing: (a) Seller will assign,
convey and transfer to Buyer the Purchased Assets by delivering a Xxxx of Sale
in the form attached hereto as Exhibit A (the “Xxxx of Sale”), and any other
instruments of transfer as shall be deemed necessary by Buyer to vest in Buyer
the title to the Purchased Assets; (b) Seller will deliver possession of the
Purchased Assets to Buyer; (c) the Closing certificate contemplated in Section
6.1(g) below; and (d) Seller shall deliver to Buyer certified copies of
resolutions of Seller’s members and managers authorizing and approving the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby.
2.3 Buyer’s
Deliveries. At the Closing: (a) Buyer shall deliver
payment of the Purchase Price as provided in Section 1.3; (b) Buyer shall
deliver the Closing certificate contemplated in Section 6.2(c) below; (c) Buyer
shall deliver to Seller the Xxxx of Sale; (d) Buyer shall deliver to
Seller certified copies of resolutions of Buyer’s board of directors authorizing
and approving the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF SELLER
The Selling Parties hereby jointly and
severally represent and warrant to Buyer as follows, which representations and
warranties shall survive the closing for a period of 14 months after the Closing
Date. Any suit alleging a breach of the representations and
warranties shall be filed within 14 months after the Closing Date.
3.1 Organization and Good
Standing. Seller is a corporation or limited liability company
duly incorporated or formed, validly existing and in good standing under the
laws of its jurisdiction of incorporation or formation. Seller has
the requisite power to own, operate, use and/or lease the Purchased Assets, as
applicable, and to conduct the Business as presently being conducted, other than
authorizations, licenses and permits that would not have a Material Adverse
Effect (as defined below). Seller is qualified or otherwise
authorized to transact business in each jurisdiction in which the nature of the
Business requires such qualification.
3.2 Authority; Binding
Obligation. Seller has the requisite corporate power and
authority to execute and deliver this Agreement and perform its obligations
hereunder. Seller’s execution and delivery of this Agreement, and
performance of its covenants and agreements hereunder, have been duly authorized
by all necessary corporate action of Seller. This Agreement has been
duly executed and delivered by Seller and constitutes a valid and binding
obligation of Seller and is enforceable against them in accordance with its
terms.
3.3 Financial Statements. Seller
has previously provided Buyer with a balance sheet, income statement and
statement of cash flows of Seller at December 31, 2007 (such statements shall be
collectively referred to herein as the “Financial
Statements”). The Financial Statements: (a)
have been prepared from Seller’s books and records; (b) have been prepared in
accordance with generally accepted accounting principals consistently applied
throughout the periods indicated, except as otherwise described in the Financial
Statements or the notes thereto; and (c) fairly present the financial condition
of the Seller as of the date thereof and, as applicable, the results of the
operations and cash flows of the Seller for the periods referred to
therein.
3.4
No
Conflict.
(a) Neither
the execution and delivery of this Agreement or any of the documents
contemplated hereby (the “Ancillary Documents”), nor the
consummation or performance of any of the transactions contemplated by this
Agreement or such Ancillary Documents (such transactions being collectively
referred to hereinafter as the “Contemplated Transactions”)
will directly or indirectly (with or without notice or lapse of
time): (i) contravene, conflict with or result in a violation of or
default under any provision of Seller’s articles or certificate of incorporation
or bylaws, or any resolution adopted by the board of directors or shareholders
of Seller; (ii) contravene, conflict with or result in a violation of or default
under, or give any Governmental Body (as defined below) or other Person (as
defined below) the right to challenge any of the Contemplated Transactions or
exercise any remedy or obtain any relief under, any federal, state or local law,
regulation, ordinance or administrative order or any judgment or decree to which
Seller, the Business and/or the Purchased Assets are subject; (iii) contravene,
conflict with or result in a violation or breach of or default under any
provision of, or give any Person the right to declare a default or exercise any
remedy under, or to accelerate the maturity or performance of, or to cancel,
terminate or modify any contract or other arrangement to which Seller is a party
or by which Seller is bound; or (iv) result in the creation of any Encumbrance
of any kind or nature upon any of the Purchased Assets. Seller is not
required to give any notice to or obtain any consent from any Person in order
for Seller to consummate the Contemplated Transactions, except for consents
required for the assignment of the Leases.
(b) For
purposes of this Agreement, the definitions set forth below shall
apply.
(i) The term
“Governmental Body”
means any (A) nation, xxxxx, xxxx, xxxx, xxxxxxx, xxxxxxxx or other jurisdiction
of any nature; (B) federal, state, provincial, local, municipal, foreign or
other government; (C) governmental or quasi-governmental agency, branch,
department, official or entity and any court or other tribunal;
(D) multi-national organization or body; or (E) any other body entitled to
exercise any administrative, executive, judicial, legislative, police,
regulatory or taxing authority or power of any nature.
(ii) The term
“Person” means any
individual, partnership, corporation, limited liability company, association,
joint-stock company, trust, joint venture, unincorporated organization or
association or a Governmental Body (or any department, agency or political
subdivision thereof).
3.5 Title, Sufficiency and
Condition of Assets. Seller has good and marketable title to
each asset constituting the Purchased Assets, free and clear of any
Encumbrances, except for Permitted Encumbrances. On the Closing Date,
Seller will transfer to Buyer good and marketable title to the Purchased Assets,
free and clear of all Encumbrances, except for Permitted
Encumbrances. To the best of Seller’s knowledge and without
independent inquiry, the Purchased Assets are in a condition and repair,
ordinary wear and tear excepted, to be usable in the ordinary course of
business. To Seller’s knowledge and without independent inquiry,
there are no material defects in the Purchased Assets.
3.6 Personal Property
Leases. The Purchased Assets do not include any leases
relating to any item of tangible personal property leased by Seller for use in
the operation of the Business.
3.7 Real Property
Leases. The Business uses only those leases relating to real
estate (locations) as set forth on Schedule A.1 (the
“Leases”), and such
Leases are valid, not in material default by Seller (or landlord) and are
enforceable in accordance with their terms. Seller has provided Buyer
with true and correct copies of all Leases and no Lease requires any consent to
or for any assignment which Seller either has not already delivered to Buyer or
which Seller will not deliver to Buyer by no later than One Hundred Twenty (120)
days after the Closing Date. Buyer shall fully cooperate with Seller
in obtaining landlord’s consent to said assignments, including but not limited
to furnishing any information that landlords may request. Upon
assignment of the Leases, Buyer will owe no amounts to any landlord under any
Lease relating to the leasing of any Premises prior to the Closing
Date.
3.8 Intellectual
Property. The Intellectual Property includes all intellectual
property owned by Seller and used exclusively in the Business that is,
individually or in the aggregate, material to the Business. With
respect to the Intellectual Property: (a) no interference actions or
other judicial or adversary proceedings, or other disputes, concerning such
intellectual property are outstanding or pending and, to Seller’s knowledge, no
such action or proceeding is threatened; and (b) Seller has the right and
authority to use such intellectual property in connection with the conduct of
the Business in the manner presently conducted and has not received notice that
such use conflicts with, infringes upon or violates any rights of any other
person, firm or corporation.
3.9 Litigation. Except
as set forth on Schedule 3.9, there are no
legal actions, suits, arbitrations or other legal, administrative or
governmental proceedings or investigations (any of the foregoing are a “Proceeding”) pending or, to
the knowledge of Seller, threatened against Seller, the Business or the
Purchased Assets, and neither Seller nor any director, shareholder, officer or
manager of Seller is aware of any facts reasonably expected to result in or form
the basis for any such Proceeding.
3.10 Court Orders, Decrees and
Laws. To the knowledge of Seller, Seller has not violated or
failed to comply, in all material respects, with any statute, law, ordinance or
regulation of any Governmental Body in the conduct of the Business which could,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. To the knowledge of Seller Seller
has not received notice of any violation of any applicable law, order,
regulation or requirement relating to the Purchased Assets or the
Business. Seller is not in default with respect to any judgment,
order or decree of any court or any Governmental Body.
3.11 Consents. Except
as otherwise set forth on Schedule 3.11, there are
no consents, approvals or other authorizations of, orders or notifications of,
registrations, declarations or filings with, any Person pursuant to the Assumed
Contracts, which are required in connection with the valid execution, delivery
or performance of this Agreement by Seller and the consummation by Seller of the
Contemplated Transactions.
3.12 Taxes. Seller
has filed and will timely file all federal, state, local and other tax returns
required to be filed by Seller. Seller has paid and will pay prior to
delinquency all taxes, interest, penalties, governmental charges, duties, fees
and fines imposed by the United States, foreign countries, states, counties,
municipalities, and subdivisions, and by all other governmental entities or
taxing authorities, the nonpayment of which would result in any Encumbrance on
any of Seller’ assets, other than real and personal property taxes for the
calendar year of the Closing attributable to the portion of the year that the
respective real or personal property of the Purchased Assets and the Premises,
which shall be apportioned between Seller and Buyer. There are no
suits, actions, claims, investigations, inquiries or proceedings threatened or
pending against Seller with respect to taxes, interest, penalties, governmental
charges, duties or fines, nor are any such matters under discussion with any
governmental authority, nor have any claims for additional taxes, interest,
penalties, charges, fines, fees or duties been received by or assessed against
Seller.
3.13 Labor and Employment
Matters. Seller has complied in all material respects with all
applicable laws, rules and regulations relating to the employment of the
employees of the Business, including but not limited to those relating to wages,
hours, collective bargaining and the payment and withholding of taxes and other
sums as required by appropriate governmental authorities. During the
three-year period preceding the date of this Agreement, no unfair labor practice
charge or complaint of unfair labor practice has been brought or threatened
against Seller with respect to any employees or former employees of the Business
or any labor organization with respect to the Business before any federal, state
or local agency; and no complaint of such unfair labor practices has been
issued, no work stoppage affecting the Seller’s operation of the Business has
been brought or threatened, and no grievance has been brought. All
accrued obligations of Seller, whether arising by operation of law, contract or
past custom, for unemployment-compensation benefits, pension benefits, salaries,
bonuses, sick leave, severance, vacation, worker-compensation claims and other
forms of compensation payable to the employees or former employees of the
Business, or to trusts or other funds or to any governmental agency, in respect
of the services rendered by any such individuals prior to the date hereof, have
been paid or will be paid prior to the Closing Date. No trade union,
council of trade unions, affiliated bargaining agency, employee-bargaining
agency or labor organization has bargaining rights for any of employees of the
Business pursuant to the provisions of all applicable laws, rules or regulations
relating to the employment of labor.
3.14 Employee Benefit
Matters. Seller has no employee benefit plans, as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended,
including without limitation any group insurance and self insured health plan,
severance-pay plan, non qualified deferred-compensation plan or retirement
plans, maintained or contributed to by Seller for its employees engaged in the
operation of the Business, former employees of the Business or dependents and
beneficiaries of such employees or former employees.
3.15 Assumed
Contracts. Seller has delivered to Buyer true and complete
copies of the Assumed Contracts, including all amendments, supplements and
modifications thereof. Seller has performed, in all material
respects, all obligations required to be performed by it in connection with the
Assumed Contracts and is not in receipt of any claim of default under any
Assumed Contract; Seller has no present expectation or intention of not fully
performing any material obligation pursuant to any Assumed Contract, and has no
knowledge of a breach or anticipated breach, in any material respect, by any
other party to any Assumed Contract.
3.16 Brokers. No
broker, finder or similar agent has been employed by or on behalf of any Seller
in connection with the Contemplated Transactions, and no person with whom Seller
have had any dealings is entitled to a commission or other compensation as a
result of the consummation thereof.
3.17 Disclaimer. Buyer
and its representatives and agent have had and have exercised, prior to the date
hereof, the right to make all inspections and investigations of the Premises and
the Purchased Assets deemed necessary or desirable by Buyer. Buyer is
purchasing the Purchased Assets based solely on the results of its inspections
and investigations and on the representations and warranties of Seller expressly
set forth in this Agreement. In light of these inspections and investigations
and the representations and warranties made to Buyer by Seller in this Section,
Buyer is relinquishing any right to any claim based on any representations and
warranties, other than those specifically included in this Article 3 and claims
based on fraud or willful misconduct. Any claims Buyer may have for
breach of representation or warranty shall be based solely on the
representations and warranties of Seller set forth in this
Article. All implied warranties of habitability,
merchantability and fitness for any particular purpose, and all other implied
warranties arising under the Uniform Commercial Code (or similar foreign laws),
are hereby waived by Buyer. Buyer further represents that neither
Seller nor any other Person has made any representation or warranty, express or
implied, as to the accuracy or completeness of any information regarding the
Premises, or any of the Purchased Assets that is not expressly set forth in this
Agreement, and neither Seller nor any other Person will have or be subject to
any liability to Buyer or any other Person resulting from the distribution to
Buyer or its representatives or agents (except to the extent such actions
involved fraud or willful misconduct), or Buyer’s use of, any such information
or any other documents or information provided to Buyer or its representatives
or agents in connection with the sale of the Premises.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to
Seller as follows, which representations and warranties shall survive the
closing for a period of 14 months after the Closing Date. Any suit
alleging a breach of the representations and warranties shall be filed within 14
months after the Closing Date:
4.1 Organization and Good
Standing. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Nebraska. Buyer has all requisite corporate power and authority to
execute and deliver this Agreement and perform its obligations
hereunder.
4.2 Authority; Binding
Obligation. Buyer has the requisite corporate power and
authority to execute and deliver this Agreement and perform its obligations
hereunder. Buyer’s execution and delivery of this Agreement and performance of
its obligations hereunder, have been duly authorized by all necessary corporate
action on the part of Buyer. This Agreement has been duly executed
and delivered by Buyer and constitutes a valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
4.3 Court Orders, Decrees and
Laws. To Buyer’s knowledge, Buyer has not violated or failed
to comply with any statute, law, ordinance or regulation of any Governmental
Body in the conduct of Buyer’s business which could, individually or in the
aggregate, adversely affect Buyer’s ability to perform its obligations under
this Agreement. Buyer is not in default with respect to any judgment,
order or decree of any court or any Governmental Body which could, individually
or in the aggregate, adversely affect Buyer’s ability to perform its obligations
under this Agreement.
4.4 No
Conflict. Neither the execution and delivery of this Agreement
or any of the Ancillary Documents, nor the consummation or
performance of the Contemplated Transactions will directly or indirectly (with
or without notice or lapse of time): (i) contravene, conflict with or
result in a violation of or default under any provision of Buyer’s articles or
certificate of incorporation or bylaws, or any resolution adopted by the board
of directors or shareholders of Buyer; (ii) contravene, conflict with or result
in a violation of or default under, or give any Governmental Body or
other Person the right to challenge any of the Contemplated Transactions or
exercise any remedy or obtain any relief under, any federal, state or local law,
regulation, ordinance or administrative order or any judgment or decree to which
Buyer is subject; (iii) contravene, conflict with or result in a violation or
breach of or default under any provision of, or give any Person the right to
declare a default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate or modify any contract or other
arrangement to which Buyer is a party or by which Buyer is
bound. Buyer is not required to give any notice to or obtain any
consent from any Person in order for Buyer to consummate the Contemplated
Transactions.
4.5 Consents. There
are no consents, approvals or other authorizations of, orders or notifications
of, registrations, declarations or filings with, any Person, which are required
in connection with the valid execution, delivery or performance of this
Agreement by Buyer and the consummation by Buyer of the Contemplated
Transactions.
4.6 Brokers. No
broker, finder or similar agent has been employed by or on behalf of any Buyer
in connection with the Contemplated Transactions, and no person with whom Buyer
have had any dealings is entitled to a commission or other compensation as a
result of the consummation thereof..
4.7 Financial
Capability. Buyer has funds sufficient to pay the Purchase
Price to be paid by it under the terms of this Agreement.
ARTICLE
V
COVENANTS
5.1 Access to Purchased
Assets. Subject to Buyer’s prior notification and coordination
with Seller, between the date of this Agreement and the Closing, Seller shall
allow Buyer reasonable access during normal business hours to the locations at
which the Business is conducted and such examination of the books, contracts and
records of Seller relating to the ownership of the Purchased Assets and the
operation of the Business, so long as such access does not unreasonably
interfere with the business operations of Seller. Further, no
investigation pursuant to this Section 5.1 shall affect any representations or
warranties made herein or the conditions to the obligations of the respective
parties to consummate the transactions contemplated by this
Agreement.
5.2 Efforts to
Consummate. Subject to the terms and conditions of this
Agreement, each of the parties shall use such party’s commercially reasonable
best efforts to take or cause to be taken all action and to do or cause to be
done all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective, as soon as reasonably practicable,
the Contemplated Transactions, including without limitation the obtaining of all
consents, authorizations, orders and approvals of any third party, whether
private or governmental, required in connection with such party’s performance of
such transactions, and each of the parties hereto shall cooperate with the
others with respect to the foregoing.
5.3 Conduct of Business.
Between the date hereof and the Closing Date, Seller shall, except as otherwise
specifically consented to in writing by Buyer, conduct the operations of the
Business in the manner required to make the representations and warranties set
forth in Article III true and correct as of the Closing Date.
5.4 Notification of Certain
Matters. Seller shall give prompt written notice to Buyer of
(a) the occurrence or failure to occur of any event which would be likely to
cause a Material Adverse Effect, (b) any material claims, actions, proceedings
or investigations commenced or, to Seller’s knowledge, threatened, involving or
affecting the Business or any of the Purchased Assets and which would be likely
to cause a Material Adverse Effect, and (iii) any material adverse change in the
condition (financial or otherwise), properties, assets, or liabilities of the
Business, which taken as a whole, so far as reasonably can be foreseen at the
time of its occurrence, would be likely to cause a Material Adverse
Effect.
5.5 Non-Competition and
Non-Solicitation.
(a) During
the Restricted Period (as defined below), each of the Selling Parties will not,
without Buyer’s prior written consent (which may be withheld with or without
reason), directly or indirectly, for themselves, together or on behalf of any
other Person, engage or be interested in, directly or indirectly, the Restricted
Business (as defined below), as a partner, investor, shareholder, principal,
agent, officer, director, employee, technical advisor, lender, trustee,
beneficiary or otherwise, anywhere within the Restricted Territory (as defined
below).
(b) As used
in this Agreement, the following definitions shall apply:
(i) “Restricted Business” means the
business of selling Cricket wireless products or services or otherwise competing
pre-paid products or services.
(ii) “Restricted Period” means the
period commencing on the Closing Date and ending on the third anniversary of the
Closing Date; provided,
however, that if any Selling Party violates the restrictive covenants
contained in this Section, the Restricted Period shall be extended for a period
of time equal to the duration of the period of such violation.
(iii) “Restricted Territory” means
the territory encompassed within the 50-mile radius of the Premises located in
the City of St. Louis, Missouri and the City of Kansas City,
Missouri.
(iv) The term
“engage or be interested,
directly or indirectly” shall include but not be limited to rendering
advice or technical or financial assistance by loan, guarantees, stock
transactions, or in any other manner, to any Person engaging or about to engage
in the Restricted Business within the Restricted Territory, but shall not by
itself include the Selling Parties’ ownership of one percent or less of the
outstanding stock of any corporation whose shares are traded on a national
securities exchange or automated quotation system, or Seller’s ownership of real
estate that is leased to a business that sells Cricket wireless products and
services.
(c) Each of
the Selling Parties agrees that for a period of one year from and after the
Closing Date, without Buyer’s prior written consent (which may be withheld with
or without reason), the Selling Parties shall not, directly or indirectly,
acting alone or together with or on behalf of or through any other Person (i)
hire as employee, consultant or other independent contractor, (ii) enter into
any other business relationship (including without limitation as partners, joint
venturers, guarantors, business associates, investors, financiers, lenders,
owners of a corporation or other business organization, entity or enterprise)
with or (iii) request, induce, advise or encourage a termination of employment
by, any employee of Seller on the Closing Date who, as of the Closing Date,
continues as an employee of Buyer.
(d) Because
the breach or anticipated breach of the restrictive covenants set forth in this
Section could result in immediate and irreparable harm and injury to Buyer, for
which it will not have an adequate remedy at law, each of the Selling Parties
agrees that Buyer shall be entitled to relief in equity to enjoin temporarily or
permanently such breach or anticipated breach and to seek any and all other
legal and equitable remedies to which Buyer may be entitled. In the
event that the foregoing restrictive covenants are considered by a court of
competent jurisdiction or arbitrator to be excessive in its duration or scope,
it shall be considered modified and valid for such duration and for such
business and area as such court or arbitrator may determine reasonable under the
circumstances.
5.6 Lease
Consents. Salem will deliver to Buyer, on or prior to the
120th day after the Closing Date, written consents from each of the landlords
who are parties to the Leases.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS
6.1 Conditions Precedent to
Obligations of Buyer. All obligations of Buyer under this
Agreement are subject to the fulfillment, at or prior to the Closing, of each of
the following conditions, which conditions may be waived only by Buyer in
writing:
(a) The
representations and warranties of Seller herein contained, which are not
qualified as to materiality, shall be true and correct as of the date hereof and
shall continue to be true and correct as of the Closing with the same force and
effect as though made as of the Closing.
(b) Seller
shall have performed or complied, in all material respects, with all the
obligations, agreements and covenants herein contained to be performed by Seller
prior to or as of the Closing.
(c) Intentionally
Deleted.
(d) Intentionally
Deleted.
(e) Buyer
shall have obtained all licenses, permits and approvals from governmental and
quasi-governmental authorities necessary to operate the Business.
(f) Seller
shall have obtained releases of all Encumbrances of whatever nature relating to
the Purchased Assets (other than the Permitted Encumbrances).
(g) Seller
shall have delivered to Buyer a certificate of an officer of Seller certifying
to the satisfaction of the conditions set forth in paragraphs (a) and (b)
above.
6.2 Conditions Precedent to
Obligations of Seller. All obligations of Seller under this
Agreement are subject to the fulfillment, at or prior to the Closing, of each of
the following conditions, which conditions may be waived only by
Seller:
(a) The
representations and warranties of Buyer herein contained shall be true and
correct as of the date hereof and shall continue to be true and correct as of
the Closing with the same force and effect as though made as of the
Closing.
(b) Buyer
shall have performed or complied with all the obligations, agreements and
covenants herein contained to be performed by Buyer prior to or as of the
Closing.
(c) Buyer
shall have delivered to Seller a certificate of an officer of Buyer , dated the
date of Closing, certifying that the conditions specified in paragraphs (a) and
(b) above, inclusively, have been fully satisfied.
ARTICLE
VII
INDEMNIFICATION
7.1 Indemnification of
Buyer. The Selling Parties shall jointly and severally
indemnify and hold harmless Buyer and its directors, officers, shareholders,
employees, representatives, agents, heirs and assigns (collectively,
the “Buyer
Parties”) from any and all damages, liabilities, losses, taxes, fines,
penalties, costs and expenses of any kind or nature whatsoever, including
without limitation reasonable fees of counsel, whether arising out of direct or
third-party claims and including all amounts paid in investigation, defense or
settlement of the foregoing (collectively, “Damages”), which may be
sustained or suffered by any of the Buyer Parties resulting from: (a)
any breach of the Selling Parties’ representations or warranties, or covenants
or agreements contained in this Agreement; (b) the ownership and use of the
Purchased Assets and operation of the Business prior to Closing; and (c) any
liabilities and obligations of Seller of any nature whatsoever.
7.2 Indemnification of
Seller. Buyer shall indemnify and hold harmless Seller and its
directors, officers, shareholders, employees, representatives, agents, heirs and
assigns (collectively, the “Indemnified Seller Parties”)
from any and all Damages, which may be sustained or suffered by any of the
Indemnified Seller Parties resulting from: (a) any breach of Buyer’s
representations or warranties, or covenants or agreements contained in this
Agreement; (b) the ownership and use of the Purchased Assets and operation of
the Business after Closing; and (c) any liabilities and obligations of Buyer of
any nature whatsoever.
7.3 Third-Party
Claims. In the event that any third-party claim or claims
arise for which indemnification may be provided under this Agreement, the
parties entitled to indemnification shall promptly deliver to the indemnifying
party the original or a true copy of any written demand or statement of claim
delivered to the indemnified party or any summons or process issued in any
proceeding to assert or enforce any claim which is served upon the indemnified
party. The indemnifying parties shall have the right to defend
against any such claim with attorneys of their own selection at their cost and
expense. The indemnified party shall have the right to participate in
such defense at its own cost and expense. The indemnifying parties
shall not make any settlement of any claim which settlement would adversely
affect the rights of the indemnified party without the written consent of the
indemnified party.
ARTICLE
VIII
TERMINATION
This
Agreement may be terminated: (a) by the mutual consent of Seller
and Buyer; or (b) by Buyer by written notice to Seller, if the conditions
set forth in Article VI hereof shall not have been
complied with or performed at or prior to Closing and shall not have been
waived; or (c) by Seller by written notice to Buyer if the conditions set
forth in Article VI hereof shall not have been
complied with or performed at or prior to Closing and shall not have been
waived; or (d) by either Buyer or Seller if the Closing shall not have
occurred by January 14, 2009; provided, however, that the
party seeking to terminate this Agreement pursuant hereto may do so only if the
failure to close shall not have resulted from the failure of such party to
comply with any of the terms of this Agreement or from the inaccuracy of any
representation or warranty of such party.
In the event of termination of this
Agreement by either Seller or Buyer as provided in this Article, this Agreement
shall forthwith become void and there shall be no liability on the part of any
party to any other party under this Agreement for such
termination. However, nothing contained herein shall relieve any
party from liability for any knowing or willful breach of this Agreement prior
to such termination.
ARTICLE
IX
GENERAL
PROVISIONS
9.1 Knowledge
Convention. Whenever any statement herein or in any schedule,
exhibit, certificate or other document delivered to any party pursuant to this
Agreement is made “to the knowledge” of a party hereto or words of similar
intent, such statement shall be deemed to be made to the best knowledge of the
party and, to the extent applicable, its directors and management, and shall in
all cases be deemed to include a representation that a reasonable investigation
of the subject matter thereof has been conducted.
9.2 Reservation of
Rights. Neither a party’s representations and warranties
contained in this Agreement nor the party’s indemnification obligations set
forth in this Agreement shall be affected by (a) any due diligence or other
investigation conducted by another party, or (b) any knowledge on the part of
another party or its agents or representatives of any circumstances resulting
from such investigation or otherwise, including without limitation knowledge
that one or more of such party’s representations or warranties might be untrue
when made or become untrue on or prior to the Closing.
9.3 Further
Assurances. Seller shall, at any time and from time to time at
and after the Closing, upon request of Buyer and without additional
consideration, take any and all steps reasonably necessary to place Buyer in
possession and operating control of the Purchased Assets, and Seller will do,
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, all such further acts, deeds, assignments,
transfers, conveyances and assurances as may be reasonably required for the more
effective transferring and confirming to Buyer or for reducing to its
possession, any or all of the Purchased Assets.
9.4 Notices,
Etc. All notices, consents, demands, requests or
communications which are required or may be given hereunder shall be in writing
and shall be deemed to have been duly given or made on the date of delivery, in
the case of hand delivery, or three business days after deposit in the United
States registered mail, postage prepaid, return receipt requested, or on the
date of receipt if transmitted by facsimile transmission or sent by Federal
Express or other reputable express delivery service, addressed in any case
to
If to
Seller, to:
VZ
Wireless, LLC
000
Xxxxxx Xx.
Xxxxxxxxx,
XX 00000
Fax: (000)
000-0000
Attn:
Xxxx Xxxxx
With a
copy to:
Xxxx
& Associates, PLLC
0000
Xxxxxxx Xxxx Xxxx
Xxxxx
000
Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attn:
Xxxxxxx X. Xxxx, Esq.
If to
Buyer, to:
PQH
Wireless, Inc.
00000
Xxxxxxxxx Xxxxxx
Xxxxx,
Xxxxxxxx 00000
Fax: (000)
000-0000
Attn: Xxxx
Xxxxxxxx
With a
copy to:
Xxxxxx
Xxxxxxx Xxxxxx & Brand, LLP
3300
Xxxxx Fargo Center
00 Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Attn: Xxxx
X. Xxxxxxxxxx, Esq.
Fax: (000)
000-0000
Or to
such other person or persons at such address or addresses as may be designated
by written notice hereunder.
9.5 Severability. Whenever
possible, each provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or the
remaining provisions of this Agreement, and the parties shall use all reasonable
efforts to amend this Agreement in order to effect the parties’ original intent
with respect to such provision, to the extent practicable.
9.6 Amendments; Waivers,
Etc. This Agreement may not be amended, modified or
supplemented except by an instrument in writing signed by Seller and Buyer, and
referring specifically to the provision alleged to have been amended, modified
or supplemented. The conditions of this Agreement may be waived only
in a writing signed by or on behalf of the parties waiving the condition,
referring specifically to the provision alleged to have been
waived. No course of dealing between or among the parties shall be
deemed effective to modify, amend or discharge any part of this Agreement or any
rights or obligations of any party under or by reason of this Agreement and a
waiver of any provision by any party on one occasion shall not be deemed to be a
waiver of the same or any other breach on a future occasion.
9.7 Assignment. This
Agreement may not be assigned nor delegated in any manner by either party
without the express written consent of the other party. If assigned
as permitted hereunder, this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns.
9.8 Governing
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Missouri without regard to its
conflicts-of-law provisions.
9.9 Entire
Agreement. All of the exhibits and schedules referred to
herein are hereby incorporated into this Agreement by reference, and this
Agreement as so constituted embodies the entire agreement and understanding of
the parties with respect to the subject matter hereof. This Agreement
supersedes all prior negotiations, discussions, communications, agreements and
understandings, whether oral or written, relating to the subject matter of this
Agreement. This Agreement contains the final and entire agreement
between the parties hereto and each shall not be bound by any terms, conditions,
statements, warranties or representations, oral or written, not contained
herein. Except as expressly provided in this Agreement, no
party shall rely on any representation or warranty with respect to the Purchased
Assets or any other matter or transaction contemplated herein, except as set
forth in this Agreement.
9.10 Construction. No
provision of this Agreement shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority or by any board of arbitrators by reason of such party or its counsel
having or being deemed to have structured or drafted such
provision. The headings and captions used in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any
Schedule or Exhibit attached hereto and not otherwise defined therein shall have
the meaning set forth in this Agreement.
9.11 Discretion. Whenever
a party may take action under this Agreement in his, her or its “sole
discretion,” “sole and absolute discretion” or “discretion,” or under a grant of
similar authority or latitude, such Person shall be entitled to consider any
factors and interests as it desires, including its own interests.
9.12 Counterparts and Delivery of
Signatures. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument. The parties
hereby acknowledge and agree that for purposes of this Agreement and the
Ancillary Documents, and all certificates, documents and other items to be
delivered pursuant to the terms thereof, that facsimile signatures and other
electronically delivered signatures shall be deemed acceptable to and binding
upon each party hereto.
9.13 Expenses. Unless
otherwise stated in this Agreement, each Party shall bear its own costs and
expenses incurred in connection with the negotiation and preparation of this
Agreement and the consummation of the transaction contemplated hereby,
including, but not limited to, their respective lawyers, accountants, investment
bankers and consultants.
9.14 No Third-Party
Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and their permitted assigns and nothing herein expressed or
implied, shall give or be construed to give any Person, other than the parties
hereto and such permitted assigns, any legal or equitable rights
hereunder.
In Witness Whereof, the parties have
executed this Asset Purchase Agreement as of the date first above
written.
SELLER:
VZ
Wireless, LLC
A
Wisconsin limited liability company
By: /s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title:
Manager
/s/ Xxxx
Xxxxx
Xxxx
Xxxxx
BUYER:
PQH
WIRELESS, INC,
a
Nebraska corporation
By: /s/ Xxxx
Xxxxxxxx
Name:
Xxxx
Xxxxxxxx
Title:
President
Exhibit
“A”
XXXX
OF SALE
KNOW ALL
MEN BY THESE PRESENTS, by this Xxxx of Sale, made and entered into as of January
16, 2009, VZ Wireless (“Seller”), a Wisconsin limited liability company, for
good and valuable consideration paid to such Seller this date by PQH Wireless,
Inc., a Nebraska corporation (“Buyer”), receipt and
sufficiency of which consideration is hereby acknowledged by Seller, pursuant to
the terms and provisions of that certain Asset Purchase Agreement dated as of
January 16, 2009, by and among Seller and Buyer, as amended and/or restated or
further modified from time to time (the “Purchase Agreement”),
do hereby bargain, grant, sell, convey, assign, transfer and deliver to Buyer
and its successors and assigns all of Seller’s right, title and interest in and
to the Purchased Assets (as defined in the Purchase
Agreement). Capitalized terms not otherwise defined herein shall have
the meanings assigned to such terms in the Purchase Agreement.
The
Purchased Assets are hereby conveyed to Buyer, and its successors and assigns,
TO HAVE AND TO HOLD, forever.
Seller
and its respective successors and assigns, agree upon the written request of
Buyer to execute, acknowledge, and deliver, or cause to be done, executed,
acknowledged, and delivered, each and all of such further acts, deeds,
assignments, transfers, conveyances, powers of attorney and assurances as may
reasonably be required pursuant to the Purchase Agreement in order to assign,
transfer, set over, convey, assure and confirm unto and vest in Buyer, its
successors and assigns the Purchased Assets and title thereto and to put Buyer
in possession and operating control of the Purchased Assets. Buyer
will acquire the sole and exclusive title to the Purchased Assets and all right,
title and interest therein, and Seller will have no right, title, or interest in
or to any such Purchased Assets, nor will Seller have any retaining possessory
or other Lien thereon.
The
scope, nature and extent of the Purchased Assets are expressly set forth in the
Purchase Agreement. Nothing herein contained will itself change,
amend, extend or alter (nor should it be deemed or construed as changing,
amending, extending or altering) the terms or conditions of the Purchase
Agreement in any manner whatsoever. This Xxxx of Sale does not create
or establish rights, liabilities or obligations not otherwise created or
existing under or pursuant to the Purchase Agreement. Seller and
Buyer acknowledge and agree that the representations, warranties, covenants,
agreements and indemnities contained in the Purchase Agreement will not be
superseded hereby, but will remain in full force and effect to the full extent
provided therein. In the event of any conflict or inconsistency
between the terms of the Purchase Agreement and the terms of this Xxxx of Sale,
the terms of the Purchase Agreement will govern.
Nothing
in this Xxxx of Sale, express or implied, is intended or shall be construed to
confer upon or give to any person, firm or corporation, other than Buyer and its
successors and assigns, any remedy or claim under or by reason of this Xxxx of
Sale or any term, covenant or condition hereof, and all of the terms, covenants,
conditions, promises and agreements in this Xxxx of Sale shall be for the sole
and exclusive benefit of Buyer and its successors and assigns.
This Xxxx
of Sale shall be binding on, and shall inure to the benefit of, the parties
hereto and their respective legal representatives, successors and
assigns.
This Xxxx
of Sale may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one document.
This Xxxx
of Sale shall be governed by and construed, interpreted and enforced in
accordance with the substantive laws of the State of Missouri without regard to
its principles of conflicts of law.
IN
WITNESS WHEREOF, the parties have executed this Xxxx of Sale as of the date
first above written.
SELLER:
VZ
Wireless, LLC
A
Wisconsin limited liability company
By: _____________________________
Xxxx
Xxxxx
Title: Manager
BUYER:
PQH
Wireless, Inc.
a
Nebraska corporation
By: _____________________________
Name: Xxxx
Xxxxxxxx
Title: President
Schedule
A.1
Leased
Real Property Schedule
|
1.
|
0000
X. Xxxxx Xxxx., Xx. Xxxxx, XX 00000
|
|
2.
|
0000
Xx. Xxxxxx Xxxxxx Xxxx Xx., Xxxxx X&X, Xxxxxxxx, XX
00000
|
|
3.
|
0000
Xxxxxxxx, Xxxxx X, Xx. Xxxxx, XX
00000
|
|
4.
|
0000
Xxxxxxx Xxx., Xx. Xxxxx, XX 00000
|
|
5.
|
0000
Xxxxx xxx Xxxxx Xxxxxxxxx, Xx. Xxxxx, XX
00000
|
|
6.
|
0000
Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000
|
|
7.
|
0000
Xxxx Xxxxxxx Xxxx, Xxxxxxx, XX
00000
|
|
8.
|
0000
Xxxxx Xxxxx Xxxxx, Xx. Xxxxx, Xx
00000
|
|
9.
|
00
X. 00xx Xx., Xxxxxx Xxxx, XX 00000
|
|
10.
|
0000
Xxxxxx Xxx., Xxxxxx Xxxx, XX 00000
|
|
11.
|
000
XX Xxxxxxxxx, Xxxxxx Xxxx, XX 00000
|
|
12.
|
0000
Xxxxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxxx, XX
00000
|
Schedule
1.1(h)
Assumed
Contracts
Lease of
0000 X. Xxxxx Xxxx., Xx. Xxxxx, XX 00000
Lease of
0000 Xx. Xxxxxx Xxxxxx Xxxx Xx., Xxxxx X&X, Xxxxxxxx, XX 00000
Lease of
0000 Xxxxxxxx, Xxxxx X, Xx. Xxxxx, XX 00000
Lease of
0000 Xxxxxxx Xxx., Xx. Xxxxx, XX 00000
Lease of
0000 Xxxxx xxx Xxxxx Xxxxxxxxx, Xx. Xxxxx, XX 00000
Lease of
0000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000
Lease of
0000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, XX 00000
Lease of
0000 Xxxxx Xxxxx Xxxxx, Xx. Xxxxx, Xx 00000
Lease of
00 X. 00xx Xx., Xxxxxx Xxxx, XX 00000
Lease of
0000 Xxxxxx Xxx., Xxxxxx Xxxx, XX 00000
Lease of
000 XX Xxxxxxxxx, Xxxxxx Xxxx, XX 00000
Lease of
0000 Xxxxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000
Schedule
1.2
Excluded
Assets
The books
and records of VZ Wireless, LLC.
Any
assets not located at the Premises.
Schedule
3.9
Litigation
None.
Schedule
3.11
Consents
|
1.
|
Seller
needs the written consent of Cricket Communications, Inc. for the
assignment of the dealer agreement.
|
|
2.
|
Seller
needs the written consent of the Landlords to assign the various Leases to
Buyer.
|
