EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and entered
into as of this 10th day of January, 2001, by and between TTI Holdings Inc., a
Nevada corporation (the "Buyer") and PNV Inc., a Delaware corporation (the
"Seller").
RECITALS
A. The Seller is a provider of data, cable TV and telecommunications
services to the long haul trucking industry.
B. The Seller wishes to sell to the Buyer substantially all the assets it
uses in connection with the business described in Recital "A" above at
the price and on the other terms and conditions specified in detail
below and the Buyer wishes to so purchase and acquire such assets from
the Seller.
C. The Seller has commenced Case No. 00-27807-BKC-PGH (the "Bankruptcy
Case") under Chapter 11 of the United States Bankruptcy Code (the
"Bankruptcy Code") by filing a voluntary petition in the United States
Bankruptcy Court for the Southern District of Florida (the "Bankruptcy
Court") and remains in possession of the Property (as such term is
defined in Section 1.1 hereof) in order to effect this Agreement. The
Buyer and the Seller acknowledge that the Bankruptcy Court must approve
this Agreement before its implementation.
D. Material inducements to the Buyer in entering into this Agreement are
that the Seller owns good and marketable title in and to the Property
and the Property shall be transferred to the Buyer at the Closing
pursuant to a Bankruptcy Court order which is reasonably acceptable to
the Buyer and which provides that the transfer shall be pursuant to
Sections 363(b)(1),(f) and (m) of the Bankruptcy Code, free and clear
of all Encumbrances (hereinafter defined), except for (i) any Assumed
Liabilities (as defined in Section 2.2) expressly assumed by the Buyer
pursuant to this Agreement at the Closing and (ii) certain agreements
related to the Property (as defined in Section 1) to be assumed by the
Seller and assigned to the Buyer pursuant to Section 365(f) of the
Bankruptcy Code.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Transfer of Property
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8.1 PURCHASE AND SALE OF THE PROPERTY. On the Closing Date, as hereinafter
defined, in consideration of the covenants, representations, and obligations of
the Buyer hereunder, and subject to the conditions hereinafter set forth, the
Seller shall sell, assign, transfer, convey, and deliver to the Buyer, and the
Buyer shall purchase from the Seller all of the Seller's right, title,
and interest as of the Closing Date in and to the following assets, wherever
located, free and clear of all Encumbrances (hereinafter defined):
1.1.1 The Seller's right, title, and interest transferred
pursuant to an assumption and assignment under an order or orders pursuant to
Section 365(f) of the Bankruptcy Code (which may be the Approval Order) entered
on or before ninety (90) days after the Closing Date (it being agreed that (a)
in no event shall the Seller be deemed to have assumed and assigned to the Buyer
any lease or contract until such assumption has been approved by an order of the
Bankruptcy Court, (b) each lease and contract which is not expressly assumed by
the Seller and assigned to the Buyer shall not constitute a portion of the
Property for all purposes, and (c) the Seller shall retain all Liability,
including, without limitation, damage claims associated with rejection, for any
lease or contract that is not expressly assumed by the Seller and assigned to
the Buyer prior to the Closing and for all Liability, including, without
limitation, damage claims associated with rejection, for any Key Contract that
is not assumed by the Seller and assigned to the Buyer following the Closing
after notice by the Buyer to the Seller pursuant to Section 8.2, or expiration
of the Decision Period): (i) as lessee under those real property leases
identified on EXHIBIT A-1 to this Agreement (collectively, the "Real Property
Leases"); (ii) as lessee under those equipment, personal property, and
intangible property leases, rental agreements, licenses, contracts, agreements,
and similar arrangements identified on EXHIBIT A-2 to this Agreement
(collectively, the "Other Leases"); and (iii) as a party to those other
contracts, leases, orders, purchase orders, licenses, contracts, agreements and
similar arrangements, including but not limited to, that certain agreement
between Travel Centers of America ("TCA") and the Seller (the "TCA Agreement"),
identified on EXHIBIT A-3 (collectively, the "Other Contracts" and together with
the Other Leases, the "Other Leases and Contracts"). The TCA Agreement is
attached at EXHIBIT A-4.
1.1.2 Any improvements located on the real property
(collectively, the "Real Property") occupied by the Seller under the Real
Property Leases, but in all events only to the extent, if any, of the Seller's
interest in the same (collectively, the "Improvements").
1.1.3 All of those items of equipment and tangible personal
property owned by the Seller and listed in EXHIBIT B attached to this Agreement,
including but not limited to, all vending machines, installed or otherwise
("Vending Machines"), all telecommunications kiosks, installed or otherwise
("Kiosks"), and all furniture, fixtures, and equipment owned by the Seller,
including, without limitation, all computers, servers, copy machines, fax
machines, computer printers, telephone equipment, cellular phones, pagers,
personal data assistants, palm pilots, and other analog or digital devices owned
by the Seller, as more specially identified by the location and the type and
make or function on EXHIBIT B (collectively, the "Personal Property"). As used
in this Agreement, the Personal Property shall not include the Inventory (as
defined in Section 1.1.5).
1.1.4 All intangible personal property owned by the Seller and
used exclusively in connection with the Property, but in all cases only to the
extent of the Seller's interest therein and only to the extent transferable,
together with all books, records and like items pertaining exclusively to the
Property (collectively, the "Intangible Property"), including, without
limitation,
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all patents issued or pending; the trademark, service xxxx, or trade name "Park
N View," "PNV," "PNV Connect," "Incab PNV," "PNV USA," "PNV Drive," "XXX.xxx,"
"Xxxxxxxxx.xxx" or any other xxxx or name used or registered for use by the
Seller; all software owned by the Seller; the domain names "XXX.xxx,"
"Xxxxxxxxx.xxx" or any other domain name registered by the Seller or any agent
or affiliate of the Seller; and the items identified on EXHIBIT C hereto. As
used in this Agreement, Intangible Property shall in all events exclude, (i) any
materials containing privileged communications or information about employees,
disclosure of which would violate an employee's reasonable expectation of
privacy and any other materials which are subject to attorney-client or any
other privilege, and (ii) the Seller's corporate books and records relating to
its organization and existence.
8.1.1 All supplies, goods, materials, work in process,
inventory, and stock in trade owned by the Seller exclusively for use or sale in
the ordinary course of the business, including all pre-paid telephone cards in
the Vending Machines and all proceeds of sales that are in the Vending Machines
or the Kiosks on the Closing Date (collectively, the "Inventory").
1.1.6 All accounts receivable arising out of the operation of
the Property (collectively, the "Receivables").
1.1.7 To the extent transferable, all Permits owned by Seller
in connection with the Property (collectively, the "Permits"). As used herein,
the term Permits shall mean all licenses, permits, franchises, consents,
approvals, variances, exemptions, and other authorizations of or from
governmental entities.
1.1.8 All operating policy and procedure manuals and
materials, customer and supplier lists, customer and supplier files, insurance
and claims files, sales and promotional literature and copies of accounting
records requested by Buyer (including accounting policy and procedure manuals
and materials) (collectively, the "Records").
1.1.9 To the extent transferable, all telephone system
software, accounting software, communications software, customer service
software, personnel software, and all other computer software owned or licensed
by the Buyer identified on EXHIBIT D hereto, together with all computer data
generated by the Seller with respect to the Property, delivered in an accessible
digital format, with all passwords, codes and other security clearance
information with respect thereto (the "Computer Software and Data").
1.1.10 All cash remaining in the Vending Machines as of the
Closing (collectively, the "Vending Machine Cash"), and all security deposits or
xxxxxxx deposits under any contract assumed by Seller and assigned to the Buyer
pursuant to this Agreement.
1.1.11 All other tangible or intangible property of the Buyer
relating to the operation of the Seller's business or the Property except for
the xxx.xxx Business (as defined in Section 1.2 below), wherever located, other
than the Excluded Assets defined in Section 1.2 (the "Other Property").
As used herein, the term "Property" shall mean the collective reference to (i)
the Real Property Leases, the TCA Agreement and the Other Leases and Contracts,
(ii) the Improvements, (iii) the Vending Machines, (iv) the Kiosks, (v) the
Personal Property, (vi) the Intangible Property, (vii)
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the Inventory, (viii) the Receivables, (ix) the Records, (x) the Permits, (xi)
the Computer Software and Data, (xii) Vending Machine Cash, and (xiii) Other
Property and shall not include the Excluded Assets (as defined in Section 1.2
below). Notwithstanding any other provision of this Agreement, in no event shall
any Real Property Lease, the TCA Agreement, or any Other Leases and Contracts
which is not expressly assumed by the Buyer and approved by the Bankruptcy Court
by an appropriate order on or before ninety (90) days after the Closing Date be
included in the "Property." The Seller acknowledges and agrees that the Buyer
shall not be in the "chain of title" of any lease or contract which is not
expressly assumed by the Buyer on or before ninety (90) days after the Closing
Date.
8.2 EXCLUDED ASSETS. Notwithstanding anything to the contrary in this
Agreement, the Property shall not include (i) those items excluded pursuant to
the provisions of Section 1.1 above; (ii) all cash and cash equivalents as of
the Closing (excluding Vending Machine Cash); (iii) Inventory used or disposed
of by the Seller in the ordinary course of the business prior to the Closing
Date; (iv) any real property lease, personal property lease, rental agreement,
contract, agreement, license, or similar arrangement ("Contracts") terminated or
expired prior to the Closing Date in accordance with its terms or in the
ordinary course of the business or rejected by the Seller prior to the Closing
Date and all Contracts which are not expressly assumed by the Seller and
assigned to the Buyer on or before ninety (90) days after the Closing Date; (v)
all claims and causes of action of the Seller, including, without limitation,
any such claims and actions arising under Sections 544, 547, 548, 549, and 550
of the Bankruptcy Code, and any claims against officers, directors, agents,
employees, accountants, auditors and other third parties; (vi) the Seller's
rights under this Agreement and all cash and non-cash consideration payable or
deliverable to the Seller pursuant to the terms and provisions hereof; (vii)
insurance proceeds, claims, and causes of action with respect to or arising in
connection with (A) any Contract which is not assigned to the Buyer at the
Closing, or (B) any item of tangible or intangible property not acquired by the
Buyer at the Closing, and (ix) the business and all of the assets of the
division of the Seller commonly referred to as xxx.xxx and the domain names and
trade marks and service marks "xxx.xxx," and "Xxxxxxxxx.xxx" (collectively,
referred to as the "xxx.xxx Business").
1.3 INSTRUMENTS OF TRANSFER. The sale, assignment, transfer, conveyance
and delivery of the Property to the Buyer and the assumption of Liabilities
provided herein by the Buyer shall be made by assignments, xxxx of sale, and
other instruments of assignment, transfer, and conveyance provided for in
Section 3 below and such other instruments as may reasonably be requested by the
Buyer or the Seller. None of the foregoing documents shall increase in any
material way the burdens imposed by this Agreement upon the Seller or the Buyer.
1.4 DEFINITIONS.
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1.4.1 As used herein, the term "Encumbrances" shall mean all
mortgages, liens, pledges, security interests, claims, demands, rights,
interests, charges, restrictions, options to purchase, encumbrances, debts,
commitments, Employee and Consultant Claims (hereinafter defined), taxes, and
all tort or contractual claims, whether absolute or contingent, matured or
unmatured, accrued or unaccrued, asserted or unasserted, known or unknown of any
nature whatsoever, whether in rem or in personam, pursuant to Sections 363(f)
and 365(f) of the
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Bankruptcy Code, including, without limitation, any claims predicated upon any
theory of Successor Liability (as defined in Section 2.2.1) or any similar
theory (collectively, the "Encumbrances").
1.4.2 As used herein, the term "Employee and Consultant
Claims" shall mean the collective reference to any and all claims accruing or
arising on or prior to the Closing against the Buyer or the Property made by any
current or former employees, independent contractors, consultants, investment
bankers, accountants, attorneys or agents of the Seller or by any of their
respective beneficiaries or dependents, including but not limited to, claims
arising in connection with, or related to, "golden parachute payments",
severance or termination payments, pension, or employee benefits claims,
retirement, profit sharing, defined contribution, and defined benefit plans,
vacation pay, accrued sick pay, accrued personal days, payments under any health
and welfare plans, any and all liability under the Worker Adjustment and
Retraining Notification Act, sexual harassment, age discrimination, race
discrimination, sexual preference discrimination, violation of federal or state
employment labor laws, retainer agreements, engagement agreements, awards,
bonuses, stock options, loans, or similar or other payments or arrangements for,
to or on behalf of such employees, independent contractors, accountants,
attorneys or agents.
2. CONSIDERATION.
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2.1 PURCHASE PRICE.
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2.1.1 The cash consideration to be paid by the Buyer to or on
behalf of the Seller for the Property (the "Purchase Price") shall be FIVE
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($5,500,000.00), subject to
adjustment as set forth in Sections 3.5 and 4.4.
2.1.2 On the Closing Date, the Buyer shall pay and deliver to
the Seller, by wire transfer the Purchase Price subject to prorations as set
forth in Section 3.5; provided, however in the event that (i) a third party
asserts in writing a bona fide claim of ownership in any portion of the Property
on or prior to the Closing or (ii) a third party asserts in writing a bona fide
claim or institutes an action against the Seller, the Buyer or the Property,
which could cause an Encumbrance with respect to any portion of the Property,
including, without limitation, any Successor Liability Claims on or prior to the
Closing (collectively, a "Third Party Claim"), which constitutes a breach of any
of the Seller's representations and warranties set forth in Sections 5.1, 5.2,
5.3 or 5.4 hereof, then, unless such Third Party Claim is resolved by the
Bankruptcy Court in the Approval Order (or any Order entered in connection
therewith), Buyer may reserve from the Purchase Price, and deliver to the
Bankruptcy Court, the estimated damages caused by such Third Party Claim to the
Buyer, as reasonably estimated by the Buyer, for the Bankruptcy Court's
administration of the Third Party Claim as set forth in Section 4.4.
8.1 ASSUMED LIABILITIES. Subject to Sections 2.2.1 and 8.2, to the
extent any Real Property Leases or Other Leases and Contracts are assumed by
Seller and assigned to Buyer in accordance with an order entered by the
Bankruptcy Court under Section 365(f) of the Bankruptcy Code, which may be the
Approval Order, Buyer, effective as of the Closing, shall
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pay, perform and discharge all Liabilities required to be paid, performed or
discharged with respect to such Real Property Leases or Other Leases and
Contracts (the "Assumed Liabilities"). In addition, Buyer shall be solely
responsible for any amounts due, past due or penalties associated with past,
including pre-petition, due amounts ("Cure Amounts") with respect to any Real
Property Leases or Other Leases and Contracts which are expressly assumed by the
Seller and Assigned by the Buyer in accordance with an order entered by the
Bankruptcy Court under Section 365(f) of the Bankruptcy Code, which may be the
Approval Order. Except as set forth hereinabove, the Buyer is not assuming and
shall not be liable for any Liabilities or obligations of the Seller.
2.2.1 For purposes of this Agreement, the term "Liability" or
"Liabilities" shall include, without limitation, any direct or indirect
indebtedness, guaranty, endorsement, claim (including, without limitation,
"claim" as defined in Section 101(5) of the Bankruptcy Code), loss, damage,
deficiency, cost, expense, obligation, or responsibility, fixed or unfixed,
known or unknown, asserted or unasserted, xxxxxx or inchoate, liquidated or
unliquidated, secured or unsecured, matured or unmatured, absolute or
contingent, whether arising under contract, tort, or by statute. Without
limiting the breadth and generality of the foregoing, the Buyer shall not assume
or incur any Liability in respect to any of the following:
(a) Liabilities to any of the Seller's creditors for
deficiencies following the sale, return, or other disposition of any assets,
which are subject to their respective security interests;
(b) Any Liabilities of the Seller arising out of any
product liability, premises liability, or similar claim for injury to person or
property, regardless of when made or asserted, which arises out of or is based
upon any expressed or implied representation, warranty, agreement, or guaranty
made by the Seller, or alleged to have been made by the Seller, or which is
imposed or asserted to be imposed by operation of law, and any claim seeking
recovery for consequential damage, lost revenue, or income;
(c) Any Liabilities of the Seller arising out of any
foreign, federal, state, or local taxes, including excise and sales taxes, or
payphone service charges: (i) payable with respect to the Property, or (ii)
incident to or arising as a consequence of the negotiation or consummation by
the Seller or any member of any affiliated group of which any is a member, of
this Agreement and the transactions contemplated hereby;
(d) Any Liability arising or accruing on or prior to
the Closing to any employees, agents, or independent contractors of the Seller,
whether or not employed by the Buyer after the Closing, or under any benefit
arrangement with respect thereto and any Liability arising with respect to any
Employee and Consultant Claims;
(e) Any Liability of the Seller arising or incurred
in connection with the negotiation, preparation, and execution of this Agreement
and the transactions contemplated hereby, including, fees and expenses of
counsel, accountants, and other experts (except as provided in Section 4.4);
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(f) Any Liability of the Seller arising with respect
to any Employee and Consulting Claims;
(g) Any Liability arising with respect to any
successor or alter ego Liability of the Seller under any legal, statutory,
contract, tort or equitable theory (collectively, "Successor Liability");
(h) All Liability of the Seller arising with respect
to any Environmental Laws (hereinafter defined); or
(i) Any other Liability of the Seller, other than the
Assumed Liabilities, Cure Amounts and the Security Deposits (as defined below).
3. CLOSING TRANSACTIONS.
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3.1 CLOSING. The closing of the transactions provided for herein (the
"Closing") shall take place at the offices of at the offices of Xxxxxxxxxx
Xxxxxxxx LLP, 000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, two (2)
business days after the Approval Order (hereinafter defined) has become final
and non-appealable (the "Closing Date").
3.2 ALTERNATIVE CLOSING DATE. The parties may mutually agree to an
extended Closing Date and shall diligently endeavor to satisfy all conditions to
the Closing.
3.3 THE SELLER'S DELIVERIES TO THE BUYER AT THE CLOSING. On or before
the Closing Date, the Seller shall make the following deliveries to the Buyer:
3.3.1 An Assignment and Assumption Agreement, under an order
pursuant to Section 365(f) of the Bankruptcy Code, substantially in the form and
content attached as EXHIBIT E hereto, duly executed by the Seller, pursuant to
which the Seller assigns the Real Property Leases and the Other Leases and
Contracts (the "Assignment Agreement"); provided, however, that the Assignment
Agreement need not be delivered by the Seller if the Bankruptcy Court has issued
an order prior to the Closing Date authorizing such assumption and assignment of
the Real Property Leases and the Other Leases and Contracts.
3.3.2 Right to possession of the Property shall transfer to
the Buyer on the Closing Date. The Seller shall deliver to the Buyer on the
Closing Date such keys, lock and safe combinations, and other similar items as
the Buyer shall require to obtain immediate and full occupation and control of
the Property and shall also make available to the Buyer the originals of all
documents in the Seller's possession that are required to be transferred to the
Buyer by this Agreement.
3.3.3 A xxxx of sale, duly executed by the Seller, in the form
and on the terms of the xxxx of sale attached hereto as EXHIBIT F, pursuant to
which the Seller transfers the Personal Property and Inventory (the "Xxxx of
Sale").
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3.4 BUYER'S DELIVERIES TO THE SELLER AT THE CLOSING. On the Closing
Date, the Buyer shall make or cause the following deliveries to the Seller:
3.4.1 The Purchase Price to be delivered by the Buyer and the
Escrow Agent (as defined in Section 7.1 below) directly to the Seller at the
Closing under Section 2.1 and 7.1 hereof, reduced by any proration under Section
3.5 hereof.
3.4.2 The Assignment Agreement, duly executed by the Buyer.
3.4.3 The Cure Amounts relating to any Real Property Leases or
Other Leases and Contracts that are assumed by the Seller and assigned to the
Buyer in accordance with an order entered by the Bankruptcy Court under Section
365(f) of the Bankruptcy Code, which may be the Approval Order, effective as of
the Closing, if any; provided if any Real Property Leases or Other Leases and
Contracts are assumed by the Seller and assigned to the Buyer during the
Decision Period, the Buyer shall pay the Cure Amount relating to such Real
Property Lease or Other Leases and Contracts as provided in Section 8.2 hereof.
3.4.4 The amount of any security or similar deposits
(collectively the "Security Deposits") with the landlords or other contracting
parties under the Real Property Leases and Other Leases and Contracts that are
assumed by the Seller and assigned to the Buyer in accordance with an order
entered by the Bankruptcy Court under Section 365(f) of the Bankruptcy Code,
which may be the Approval Order, effective as of the Closing; provided if any
Real Property Leases or Other Leases and Contracts are assumed by the Seller and
assigned to the Buyer during the Decision Period, the Buyer shall pay to the
Seller the Security Deposit, if any, relating to such Real Property Lease or
Other Leases and Contracts as provided in Section 8.2 hereof.
3.5 PRORATIONS. Subject to Section 2.2 of this Agreement, rent, current
taxes, and other items of expense with respect to the Real Property Leases
(including, without limitation, any prepaid insurance) shall be prorated between
the Seller and the Buyer as of the Closing Date.
3.6 SALES, USE, AND OTHER TAXES. Any sales, purchases, transfer, stamp,
documentary stamp, use, or similar taxes which may be payable by reason of the
sale of the Property under this Agreement or the transactions contemplated
herein shall be borne and timely paid by the Seller.
4. Conditions Precedent to the Closing.
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4.1 CONDITIONS TO THE SELLER'S OBLIGATIONS. The Seller's obligation to
make the deliveries required of the Seller at the Closing Date shall be subject
to the satisfaction or waiver by the Seller of each of the following conditions.
4.1.1 All of the representations and warranties of the Buyer
contained herein shall continue to be true and correct at the Closing in all
material respects, all covenants and obligations to be performed by the Buyer
prior to the Closing shall have been performed in all material respects, and the
Buyer shall have certified the foregoing to the Seller in writing.
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4.1.2 The Buyer shall have executed and delivered to the
Seller the Assignment Agreement and each other document reasonably requested by
the Seller pursuant to Section 1.3.
4.1.3 The Seller shall have received the Purchase Price, the
Cure Amounts and the Security Deposits in immediately available funds.
4.1.4 The Buyer shall have delivered to the Seller appropriate
evidence of all necessary corporate action by the Buyer in connection with the
transactions contemplated hereby, including, without limitation: (i) certified
copies of resolutions duly adopted by the Buyer's directors approving the
transactions contemplated by this Agreement and authorizing the execution,
delivery, and performance by the Buyer of this Agreement; and (ii) a certificate
as to the incumbency of officers of the Buyer executing this Agreement and any
instrument or other document delivered in connection with the transactions
contemplated by this Agreement.
4.1.5 No order enjoining or restraining the Closing shall have
been issued by a court of competent jurisdiction.
4.1.6 The Bankruptcy Court shall have entered the Procedure
Order in accordance with Section 7.2.1 below and the Approval Order, both of
which shall be on terms and conditions reasonably acceptable to the Seller, and
the Approval Order shall not have been stayed as of the Closing Date.
4.2 CONDITIONS TO THE BUYER'S OBLIGATIONS. The Buyer's obligation to
make the deliveries required of the Buyer at the Closing shall be subject to the
satisfaction or waiver by the Buyer of each of the following conditions:
4.2.1 The representations and warranties of the Seller set
forth in Sections 5.5, 5.6 and 5.7 hereof shall be true and correct at the
Closing Date in all material respects and all covenants and obligations to be
performed by the Seller prior to the Closing Date shall have been performed in
all material respects, and the Seller, or the Seller's authorized representative
or successor, shall have certified the foregoing to the Buyer in writing.
4.2.2 The Seller shall have executed and delivered to the
Buyer the Assignment Agreement, the Xxxx of Sale, and each other document
reasonably requested by the Buyer pursuant to Section 1.3.
4.2.3 No order enjoining or restraining the Closing shall have
been issued by a court of competent jurisdiction.
4.2.4 The Bankruptcy Court shall have entered the Procedure
Order in accordance with Section 7.2.1 below and the Approval Order, both of
which shall be on terms and conditions reasonably acceptable to the Buyer, and
the Approval Order shall not have been stayed as of the Closing Date.
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8.1 TERMINATION. If any of the above conditions is neither satisfied
nor waived on or before the date by which the condition is required to be
satisfied, the party affected thereby may terminate this Agreement by delivering
to the other written notice of termination. Any waiver of a condition shall be
effective only if such waiver is stated in writing and signed by the waiving
party; provided, however, that the consent of a party to the Closing shall
constitute a waiver by such party of any conditions to Closing not satisfied as
of the Closing Date.
4.4 ADMINISTRATION OF BREACHES BY THE SELLER OF REPRESENTATION OR
WARRANTY. In the event of a Third Party Claim on or before the Closing Date, the
Buyer may send written notices to the Seller setting forth the estimated cost to
the Buyer to cure such Third Party Claim, as estimated by the Buyer in good
faith (such cost for each breach, the "Breach Cost"). At the Closing, the Buyer
may reserve from the Purchase Price the aggregate amount of all Breach Costs
(such aggregate Breach Costs, the "Aggregate Breach Cost") and, at the Closing,
the Buyer shall deliver such Aggregate Breach Cost to the Bankruptcy Court or
such other escrow agent acceptable to the Seller and the Buyer; provided,
however that such escrow deposit shall not become a portion of the bankruptcy
estate of the Seller. The Seller shall have twenty (20) days after the Closing
Date to object to any portion of the calculation of the Aggregate Breach Cost.
In the event the Seller and the Buyer fail to resolve any dispute with respect
to the Aggregate Breach Cost after Seller's written notice, then, the parties
shall be entitled to petition the Bankruptcy Court to resolve any such dispute.
Notwithstanding the foregoing, if the Approval Order (as defined in Section
7.2.2 below) (or other order relating thereto) resolves, overrules, or otherwise
disposes of a Third Party Claim, then a reserve, if any, in respect thereof
shall be delivered to the Seller or the Buyer as set forth in the Approval Order
(or other order relating thereto).
5. THE SELLER'S REPRESENTATIONS AND WARRANTIES. The Seller hereby makes
the following representations and warranties to the Buyer, which
representations shall be true and correct as of the date hereof and as
of the Closing Date for all purposes:
5.1 TITLE TO PROPERTY. The Seller has good and marketable title to the
Property. At the Closing, the Buyer will acquire and have good and marketable
title in and to all of the Property, free and clear of any Encumbrances, subject
to the Buyer's assumption of the Assumed Liabilities. Each of the lists of the
items comprising the Property set forth on each of the Exhibits and Schedules
described in Section 1.1 and attached to, and incorporated into, this Agreement,
are true, correct and complete, in all material respects.
5.2 TAXES. There are no federal, state, or other tax liens filed with
respect to, or attached to, any of the Property. The Seller has complied in all
material respect with all applicable laws, rules, and regulations relating to
the payment and withholding of federal, state and other taxes and has, within
the time and in the manner prescribed by law, withheld from employee wages and
paid over to the proper governmental authorities all amounts required to be so
withheld and paid over under all applicable laws.
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5.3 EMPLOYEE BENEFIT PLANS. SCHEDULE 5.3 identifies each of the
Seller's employee benefit plans, including all retirement, profit sharing,
defined contribution, and defined benefit plans, as well as any severance,
vacation pay, health and welfare, employment, or other agreements (oral or
written) relating to the employees of the Seller (collectively, the "Plans").
Except as set forth on SCHEDULE 5.3, no Plan is a multi-employer or a defined
benefit plan, and neither the Seller nor any predecessor or affiliate (which for
all purposes in this Agreement means any person or entity controlling,
controlled by, or under common control with another person or entity) of the
Seller or a predecessor has ever been a party to or sponsored a multi-employer
or defined benefit plan. Except as set forth on SCHEDULE 5.3, the Seller is not
a member of a group of businesses under common control or businesses
constituting a single employer (a "Group"), except a Group in which no member
has been a party to a defined benefit plan, nor, except as set forth on SCHEDULE
5.3, does the Seller have any current or projected liability with respect to
post-employment or post-retirement pension benefits for former or retired
employees of the Seller, affiliated entities, or a member of a Group.
5.4 ENVIRONMENT, HEALTH, AND SAFETY. With regard to its leased premises
which the Seller shall assume and assign to Buyer hereunder, the Seller has
complied in all material respects with all laws concerning pollution or
protection of the environment, and all laws concerning employee health and
safety, including laws relating to emissions, discharges, releases, or
threatened releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes (including petroleum and any fraction or
derivative thereof) into ambient air, surface water, ground water, or lands, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or hauling of such substance (collectively, the
"Environmental Laws"), and no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, demand, or notice has been filed or commenced against
it alleging any failure so to comply, nor is the Seller aware of any factual
basis therefore. The Seller has obtained and been in compliance with all of the
terms and conditions of all material permits, licenses, franchises, and other
approvals required under all Environmental Laws.
5.5 VALIDITY OF AGREEMENT. Subject to the Approval Order, the
execution, delivery, and performance of this Agreement has been duly authorized
by the Seller, and this Agreement is a valid and binding obligation of the
Seller enforceable in accordance with its terms.
5.6 ORGANIZATION, STANDING AND POWER. The Seller is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Subject to the applicable provisions of Bankruptcy Code and the
Approval Order, the Seller has all requisite corporate power and authority to
execute, deliver, and perform this Agreement and all writings relating hereto.
The Seller has no subsidiaries.
5.7 NO CONFLICTS OR VIOLATIONS. Upon obtaining the Approval Order, the
execution and delivery of this Agreement, the consummation of the transactions
herein contemplated, and the performance of, fulfillment of, and compliance with
the terms and conditions hereof by the Seller do not and will not: (i) conflict
with or result in a breach of the certificate of incorporation or the by-laws of
the Seller; (ii) violate any statute, law, rule, or regulation, or any order,
writ,
11
injunction, or decree of any court or governmental authority; (iii) violate or
conflict with or constitute a default under any agreement, instrument, or
writing of any nature to which the Seller is a party or by which the Seller or
the Properties may be bound; or (iv) result in the creation or imposition of any
Encumbrance in favor of any third party with respect to any of the Property.
6. THE BUYER'S REPRESENTATIONS AND WARRANTIES. The Buyer hereby makes the
following representations and warranties to the Seller:
6.1 VALIDITY OF AGREEMENT. All action on the part of the Buyer
necessary for the authorization, execution, delivery, and performance of this
Agreement by the Buyer, including, but not limited to, the performance of the
Buyer's obligations hereunder, has been duly taken. This Agreement, when
executed and delivered by the Buyer, shall constitute the valid and binding
obligation of the Buyer enforceable in accordance with its terms.
6.2 ORGANIZATION, STANDING, AND POWER. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Nevada. The Buyer has all requisite corporate power and authority to own, lease,
and operate its properties, to carry on its business as now being conducted, and
to execute, deliver, and perform this Agreement and all writings relating
hereto.
6.3 NO CONFLICTS OR VIOLATIONS. The execution and delivery of this
Agreement, the consummation of the transactions herein contemplated, and the
performance of, fulfillment of and compliance with the terms and conditions
hereof by the Buyer do not and will not: (i) conflict with or result in a breach
of the articles of incorporation or by-laws of the Buyer; (ii) violate any
statute, law, rule, or regulation, or any order, writ, injunction, or decree of
any court or governmental authority; or (iii) violate or conflict with or
constitute a default under any agreement, instrument, or writing of any nature
to which the Buyer is a party or by which the Buyer or its assets or properties
may be bound.
6.4 FINANCING. The Buyer has sufficient funds available to consummate
the transactions contemplated hereby.
6.5 "AS IS" TRANSACTION. Buyer hereby acknowledges and agrees that,
except as otherwise expressly provided in Section 5 above, the Seller makes no
representations or warranties whatsoever, express or implied, with respect to
any matter relating to the Property including, without limitation, income to be
derived or expenses to be incurred in connection with the Property, the physical
condition of any personal property comprising a part of the Property or which is
the subject of any Other Lease or Contract to be assumed by Seller and assigned
to Buyer at the Closing, the environmental condition or other matter relating to
the physical condition of any real property or improvements, which are the
subject of any real property lease to be assumed by Buyer at the Closing, the
zoning of any such real property or improvements, the value of the Property (or
any portion thereof), the terms, amount, validity or enforceability of any
assumed liabilities, the merchantability or fitness of the personal property or
any other portion of the Property for any particular purpose, or any other
matter or thing relating to the Property or any portion thereof. Without in any
way limiting the foregoing, Seller hereby disclaims any
12
warranty, express or implied, of merchantability or fitness for any particular
purpose as to any portion of the Property. Buyer further acknowledges that Buyer
has conducted an independent inspection and investigation of the physical
condition of the Property and all such other matters relating to or affecting
the Property as Buyer deemed necessary or appropriate and that in proceeding
with its acquisition of the Property, except for any representations and
warranties expressly set forth in Section 5, Buyer is doing so based solely upon
such independent inspections and investigations. Accordingly, subject to the
representations and warranties of the Seller set forth in Sections 5, the Buyer
will accept the Property at the Closing "as is", "where is" and "with all
faults."
7. CONDUCT AND TRANSACTION PRIOR TO THE CLOSING.
---------------------------------------------
8.1 DEPOSIT. Concurrently with the execution and delivery of this
Agreement (the date of such mutual execution and delivery is sometimes referred
to herein as the "Execution Date"), the Buyer shall deposit into a segregated
trust account (the "Escrow") maintained by Kozyak, Tropin & Xxxxxxxxxxxx, PA, as
escrow agent (the "Escrow Holder"), pursuant to an escrow agreement that is
reasonably acceptable to the Buyer and Seller and that recognizes that such
deposit is not property of the bankruptcy estate, the sum of $1,100,000.00 (the
"Deposit") in immediately available, good funds. Upon receipt of the Deposit,
the Escrow Holder shall immediately place the Deposit into an interest-bearing
account. Except as set forth below, the Buyer shall reimburse the bankruptcy
estate for any reasonable fees and charges relating to the Escrow. If the
Closing occurs, then the Deposit (including any interest accrued thereon) shall
be applied by the Seller to the Purchase Price. If the Closing does not occur,
then, the Deposit shall become nonrefundable and shall be delivered to the
Seller if and only if (i) Seller has satisfied each of Buyer's conditions set
forth in Sections 4.2.1, 4.2.2, 4.2.3 and 4.2.4 and (ii) a Buyer's Default
(hereinafter defined) has occurred and continues to exist as of the Closing
Date. As used herein, the term "Buyer's Default" shall mean, either (i) the
failure of Buyer to close the transaction contemplated by this Agreement on the
Closing Date or (ii) the failure of Buyer to satisfy each of the conditions to
Seller's obligation to close set forth in Section 4.1.1, 4.1.2, 4.1.3, or 4.1.4
on the Closing Date. The Escrow Agent shall return to the Buyer the Deposit,
together with all interest accrued thereon, and the Buyer shall not be required
to reimburse the bankruptcy estate for any and all fees and charges of the
Escrow Holder related to the Escrow if any of the following events occur: (A) if
the Procedure Order is not approved by the Bankruptcy Court on or before 5:00
p.m., Eastern time, seven (7) business days after the Execution Date; or (B) if
this Agreement is terminated in accordance with the terms of this Agreement by
either party or if the Closing fails to occur (i) because an Outbid (as defined
in Section 7.2.1) occurs, (ii) because the Bankruptcy Court approves the sale of
a portion of the Property to any third party (other than Buyer), (iii) because
each of the conditions to Buyer's obligation to close set forth in Sections
4.2.1, 4.2.2, 4.2.3 and 4.2.4 is not satisfied as of the Closing Date, (iv)
because Seller fails to close the transactions contemplated under this Agreement
on the Closing Date, or (v) because the Closing fails to occur for any reason,
other than Buyer's Default, on or before thirty-five (35) days after the date of
the Procedure Order.
7.2 BANKRUPTCY COURT APPROVALS.
--------------------------
13
7.2.1 BANKRUPTCY COURT APPROVAL OF SALE PROCEDURES. Promptly
following the Execution Date, the Seller will file a motion (the "Sale Procedure
Motion") with the Bankruptcy Court requesting the entry of an order (the
"Procedure Order") no later than 5:00 p.m., Eastern time, two (2) business days
after the Execution Date (i) requesting expedited hearings on the Sale Procedure
Motion and the Sale Motion (as hereinafter defined), (ii) requesting the
Bankruptcy Court to fix the time, date, and location of a hearing (the "Approval
Hearing") to approve the Seller's consummation of this Agreement, (iii)
requesting the approval of the assignment and assumption of certain executory
contracts or agreements and rejecting certain executory contracts or agreements,
if necessary, (iv) providing that if the Seller solicits bids (whether
voluntarily or at the direction of the Bankruptcy Court) from a third party,
such third party shall be pre-qualified by depositing with the Seller's
bankruptcy counsel no later than 24 hours prior to the submission of such bid an
amount equal to the Deposit and such offer is for a purchase price for the
Property that is greater than the Purchase Price and is subsequently approved by
the Bankruptcy Court and closes as provided by its terms but in no event later
than the earlier of ten (10) days after Bankruptcy Court approval or two (2)
business days after the Approval Order becomes final and non-appealable, then
the Seller shall pay the Buyer at such closing a flat fee payment of
$550,000.00, (v) providing that if the Seller receives a bid from a third party,
the Seller shall provide a copy of such bid to the Buyer within 24 hours of the
receipt of such bid, (vi) providing that no prospective purchaser who bids for
the Property shall be entitled to purchase the Property unless such prospective
purchaser offers to purchase all the Property, and the purchase is for
consideration which is at least $6,150,000 and otherwise on terms at least as
favorable to the Seller as those set forth in this Agreement (an "Outbid"),
(vii) providing that after any initial Outbid, all further Outbids must be in
increments of at least $50,000, (viii) noting that the holders of the majority
of the bonds of the Seller joins with the Seller in submitting the Sale
Procedure Motion and the Sale Motion, and approving the procedures specified in
Sections 7.1 and 8. Should bidding take place, the Buyer shall have the right,
but not the obligation, to participate in the bidding and to be approved as the
highest bidder at the Approval Hearing based upon any such Outbid. Following the
filing of the Sale Procedure Motion, the Seller shall use Seller's best efforts
to obtain the Procedure Order (the date on which the Procedure Order is entered
and becomes final is referred to herein as the "Sale Procedure Date").
7.2.2. BANKRUPTCY COURT'S APPROVAL OF SALE. Promptly following
the Execution Date, and contemporaneously with the filing of the Sale Procedure
Motion, the Seller shall file a motion with the Bankruptcy Court (the "Sale
Motion") requesting entry of an order (the "Approval Order") providing the
following, unless specifically waived by the Buyer:
8 Make a finding that matters subject to this
Agreement are "core" matters over which the
Bankruptcy Court has jurisdiction pursuant
to 28 U.S.C. Sections 1334 and 157;
9 Make a finding that due and proper notice of
the transactions contemplated by this
Agreement and ancillary agreements has been
given to creditors, shareholders, potential
claimants, and other parties in interest;
10 Make a finding that the Purchase Price
constitutes fair value for the Property;
14
11 Make a finding that the Property is being
purchased by the Buyer in good faith and
that the Purchase Price was not controlled
by an agreement among potential bidders and
otherwise complies with the requirements of
Section 363(m) of the Bankruptcy Code;
12 Make a finding that "sound business reasons"
exist for Bankruptcy Court approval of this
Agreement;
13 Except as otherwise provided in this
Agreement, approve the Agreement and provide
that the Property is to be conveyed to the
Buyer free and clear of all Encumbrances;
14 Except as otherwise provided in this
Agreement, provide that the Buyer shall not
be liable or obligated for any Liability
(including Successor Liability), Employee
and Consultant Claims, liens, interests,
damages, costs, expenses, claims, or demands
arising from or relating to the Seller's
ownership or operation of the Property or
the Seller's conduct of the business related
to the Property on or prior to the Closing
Date or taxes arising out of the sale of the
Property;
15 Specifically overrule objections, if any, to
the sale; provided, however, that the
Approval Order shall not have been stayed,
materially modified, withdrawn, or reversed
as of the Closing;
16 Approve the Assignment Agreement and the
Xxxx of Sale pursuant to Section 365(f) of
the Bankruptcy Code and reject the executory
contracts or agreements requested by the
Buyer;
17 Copies of the Procedure Order and the
Approval Order shall be served on all
creditors and interested parties, including
but not limited to, all past and present
employees and all necessary taxing and
regulatory authorities; and
18 The terms and provisions of the Agreement,
together with the terms and provisions of
the Procedure Order and the Approval Order
shall be binding in all respects on any
trustee appointed in the Seller's Chapter 11
Bankruptcy Case, or if the Bankruptcy Case
is converted to a Chapter 7 proceeding, on
any trustee appointed in a Chapter 7
proceeding.
Following the filing of the Sale Motion, the Seller shall use reasonable efforts
to obtain entry of the Approval Order. Both the Buyer's and the Seller's
obligations to consummate the transactions contemplated in this Agreement shall
be conditioned upon the Bankruptcy Court's entry of the Procedure Order and the
Approval Order.
8. CONDUCT POST-CLOSING.
--------------------
8.1 WEEKLY ADVANCE. Commencing at the Closing and continuing until the
Real Property Leases identified on Exhibit A-1, the Other Leases identified on
Exhibit A-2, the Other Contracts identified as the on Exhibit A-3 and the TCA
Agreement identified on Exhibit A-4 (collectively the "Key Contracts") are
either assumed by the Seller and assigned to the Buyer or rejected by the
Seller, but in no event later than 90 days following Closing Date, the Buyer
shall pay to the Seller, and the Seller shall distribute to the applicable
lessor or vendor when due, an amount equal to the following week's rental or
lease payments required under such Key Contracts. The Seller shall provide to
the Buyer written notice of the weekly amounts due under such Key Contracts, and
within two (2) days after receipt of such notice, the Buyer shall remit
15
payment to the Seller. The Buyer shall provide the Seller with written notice
identifying the Key Contracts for which payment is made. In the event the Buyer
does not make the payments required by this Section 8.1 with respect to a Key
Contract, then the Seller may, in its sole and absolute discretion, reject such
Key Contracts, or, if the Buyer fails to identify the Key Contracts to which
payment should be allocated and the Buyer has not previously paid the Seller
adequate funds to pay all amounts due under the Key Contracts as provided
herein, the Seller may reject all Key Contracts.
8.2 ASSIGNMENT AND ASSUMPTION PROCEDURES. The Buyer shall have the
right and option, exercised from time-to-time within 90 days after the Closing
Date, to request the Seller to make application to the Bankruptcy Court to
assume and assign to Buyer all or any Key Contracts, provided the Buyer makes
such request in accordance with the provisions hereof on or before ninety (90)
days after the Closing Date (the "Decision Period"). If the Buyer notifies the
Seller, by facsimile or otherwise, of its desire for the Seller to assume and
assign to the Buyer a particular Key Contract, the Seller shall cooperate with
the Buyer in effectuating such assignment, including without limitation, the
submission of an appropriate motion to the Bankruptcy Court, and upon Bankruptcy
Court approval of any such assumption and assignment, the Buyer shall pay the
Cure Amount with respect to such Key Contract, if any, and reimburse the Seller
for the Security Deposit relating to such Key Contract, if any. If the Buyer
notifies the Seller, by facsimile or otherwise, of its desire for the Seller to
reject a particular Key Contract, the Seller shall promptly submit an
appropriate motion to the Bankruptcy Court and seek expedited treatment of such
motion. Until such time as the Seller accepts and assigns to the Buyer a Key
Contract, the Buyer shall deliver any cash, revenues or profits (excluding any
cash, revenues or profits that the Seller would be entitled to retain pursuant
to the terms of such Key Contract) received under such Key Contract to the
Seller. The Buyer shall not be obligated to pay any Cure Amount or Security
Deposit with respect to any Key Contract by reason of the Buyer's execution of a
contract or lease with a party that is a party or a successor to a party to a
Key Contract. Upon the earlier of (i) the date the Bankruptcy Court approves the
Seller's rejection of a Key Contract following the Buyer's notification of the
Seller, by facsimile or otherwise, that it wishes the Seller to reject a Key
Contract, or (ii) the expiration of the Decision Period, the Buyer's obligation
to pay the amounts described in Section 8.1 shall terminate. For the purposes of
Section 8, notice to the Seller shall be effectuated by notice to the Seller's
bankruptcy counsel (Kozyak Tropin & Xxxxxxxxxxxx, PA) and such other parties as
the Approval Order may designate.
9. MISCELLANEOUS.
--------------
9.1 REASONABLE ACCESS TO RECORDS AND CERTAIN PERSONNEL. So long as the
Bankruptcy Case is pending, (i) the Seller shall permit the Buyer's counsel and
other professionals employed in the Bankruptcy Case reasonable access to the
financial and other books and records relating to the Property (whether in
documentary or data form) for the purpose of monitoring the status of the
Property, which access shall include (a) the right of such professionals to
copy, at the Buyer's expense, such documents and records as they may request in
furtherance of the purposes described above, and (b) the Seller's copying and
delivering to the Buyer or its
16
professionals such documents or records as they may request, but only to the
extent the Buyer or its professionals furnishes the Buyer with reasonably
detailed written descriptions of the materials to be so copied and the Buyer
reimburses the Seller for the reasonable costs and expenses thereof), and (ii)
the Seller shall provide the Buyer and such professionals (at no cost to the
Buyer) with reasonable access to such personnel employed by the Seller during
regular business hours to assist the Buyer in the monitoring the Property,
provided that such access does not unreasonably interfere with the Seller's
business operations.
9.2 NOTICES. Unless otherwise provided herein, any notice, tender, or
delivery to be given hereunder by either party to the other may be effected by
personal delivery in writing, or by registered or certified mail, postage
prepaid, return receipt requested, and shall be deemed communicated as of the
date of mailing. Mailed notices shall be addressed as set forth below, but each
party may change his address by written notice in accordance with this
paragraph.
To the Seller: PNV Inc.
00000 X.X. 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn: Xxx Xxx, President and CEO
Fax: 000-000-0000
With a copy to: Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxx X'Xxxxxxx
Fax: 000-000-0000
and
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Fax: 000-000-0000
and
Kozyak Tropin & Xxxxxxxxxxxx, PA
2800 First Union Financial Center
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx Xxxxxx
Fax: 000-000-0000
and
17
Xxxxxxxx Xxxxx Xxxxxx & Xxxxx
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Fax: 000-000-0000
To the Buyer: TTI Holding Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, President
Fax: 000-000-0000
With a copy to: Xxxxxxx Law Firm, P.C., L.L.O.
000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Fax: 000-000-0000
and
Xxxxxx, Xxxxx & Xxxxxxxxx
000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx
Fax: 000-000-0000
9.3 ENTIRE AGREEMENT. This instrument and the documents to be executed
pursuant hereto contain the entire agreement between the parties relating to the
sale of the Property. Any oral representations or modifications concerning this
Agreement or any such other document shall be of no force and effect excepting a
subsequent modification in writing, signed by the party to be charged.
9.4 MODIFICATION. This Agreement may be modified, amended, or
supplemented only by a written instrument duly executed by all the parties
hereto.
9.5 CLOSING DATE. All actions to be taken on the Closing pursuant to
this Agreement shall be deemed to have occurred simultaneously, and no act,
document, or transaction shall be deemed to have been taken, delivered, or
effected until all such actions, documents, and transactions have been taken,
delivered, or effected.
9.6 SEVERABILITY. Should any term, provision, or paragraph of this
Agreement be determined to be illegal or void or of no force and effect, the
balance of the Agreement shall survive except that, if the Buyer cannot acquire
and the Seller cannot sell substantially all of the Property, either party may
terminate this Agreement, and it shall be of no further force and effect, unless
both parties agree in writing to the contrary.
18
9.7 CAPTIONS. All captions and headings contained in this Agreement are
for convenience of reference only and shall not be construed to limit or extend
the terms or conditions of this Agreement.
9.8 FURTHER ASSURANCES. Each party hereto will execute, acknowledge,
and deliver any further assurance, documents, and instruments reasonably
requested by any other party hereto for the purpose of giving effect to the
transactions contemplated herein or the intentions of the parties with respect
thereto.
9.9 WAIVER. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of other provisions, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
9.10 BROKERAGE OBLIGATIONS. The Seller is represented by Xxxxxxxx Xxxxx
Xxxxxx & Xxxxx ("HLHZ") as its exclusive sale agent with respect to the
transactions contemplated herein. HLHZ's commission, fees, and expenses are to
be paid by the Seller directly from sales proceeds as a cost of the sale and in
accordance with the terms and provisions of HLHZ's employment agreement with the
Seller. The Seller and the Buyer each represent and warrant to the other that,
except for the obligation of the Seller to HLHZ, such party has incurred no
Liability to any real estate broker or agent with respect to the payment of any
commission regarding the consummation of the transaction contemplated hereby.
Except for any claims of HLHZ against the Seller (which are to be handled and
satisfied by the Seller in accordance with the above referenced order), it is
agreed that if any claims for commissions, fees, or other compensation,
including, without limitation, brokerage fees, finder's fees, or commissions are
ever asserted against the Buyer or the Seller in connection with this
transaction, all such claims shall be handled and paid by the party whose
actions form the basis of such claim and such party shall indemnify, defend
(with counsel reasonably satisfactory to the party entitled to indemnification),
protect, and save and hold the other harmless from and against any and all such
claims or demands asserted by any person, firm, or corporation in connection
with the transaction contemplated hereby.
9.11 PAYMENT OF FEES AND EXPENSES. Each party to this Agreement shall
be responsible for, and shall pay, all of its own fees and expenses, including
those of its counsel, incurred in the negotiation, preparation, and consummation
of the Agreement and the transaction described herein.
9.12 SURVIVAL. None of the respective representations, warranties,
covenants, and agreements of the Seller and the Buyer herein, including without
limitation Section 5 hereof, or in any certificates or other documents delivered
prior to or at the Closing, shall survive the Closing. Buyer hereby acknowledges
and agrees that Buyer's sole remedy for breach of Seller's representations and
warranties in Section 5 is a purchase price reduction pursuant to Section 2.1.2.
19
9.13 ASSIGNMENTS. This Agreement shall not be assigned by the Seller
without the prior written consent of the Buyer. This Agreement shall be freely
assignable by the Buyer, without approval or consent of the Seller, so long as
the Buyer remains liable for performance in the event of default in performance
by the Buyer's assignee.
9.14 BINDING EFFECT. Subject to the provisions of Section 8.13 above,
this Agreement shall bind and inure to the benefit of the respective heirs,
personal representatives, successors, and assigns of the parties hereto.
9.15 APPLICABLE LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the state of Florida.
9.16 GOOD FAITH. All parties hereto agree to do all acts and execute
all documents required to carry out the terms of this Agreement and to act in
good faith with respect to the terms and conditions contained herein before and
after the Closing.
9.17 CONSTRUCTION. In the interpretation and construction of this
Agreement, the parties acknowledge that the terms hereof reflect extensive
negotiations between the parties and that this Agreement shall not be deemed,
for the purpose of construction and interpretation, drafted by either party
hereto.
9.18 COUNTERPARTS. This Agreement may be signed in counterparts. The
parties further agree that this Agreement may be executed by the exchange of
facsimile signature pages.
9.19 TIME IS OF THE ESSENCE. Time is of the essence in this Agreement,
and all of the terms, covenants, and conditions hereof.
9.20 BANKRUPTCY COURT JURISDICTION. THE BUYER AND THE SELLER AGREE THAT
THE BANKRUPTCY COURT SHALL HAVE EXCLUSIVE JURISDICTION OVER ALL DISPUTES AND
OTHER MATTERS RELATING TO: (i) THE INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT OR ANY ANCILLARY DOCUMENT EXECUTED PURSUANT HERETO; AND/OR (ii) THE
PROPERTY AND/OR ASSUMED LIABILITIES, AND THE BUYER EXPRESSLY CONSENTS TO AND
AGREES NOT TO CONTEST SUCH EXCLUSIVE JURISDICTION.
9.21 ATTORNEYS FEES. In the event that either party hereto brings an
action or other proceeding to enforce or to interpret the terms and provisions
of this Agreement, the prevailing party in that action shall be entitled to have
and recover from the non-prevailing party all such fees, costs, and expenses,
including, without limitation, all court costs and reasonable attorneys' fees,
as the prevailing party may suffer or incur in pursuit or defense of such
action.
20
IN WITNESS WHEREOF, the parties hereto have executed this Asset
Purchase Agreement as of the day and year first above written.
TTI HOLDING INC., a Nevada corporation
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxx, President
PNV INC., a Delaware corporation
Debtor and Debtor In Possession
By: /s/ Xxxxxx X. May
--------------------------------------
Name: Xxxxxx X. May
Its: President and Chief Executive Officer
21
Index of Exhibits
-----------------
A-1 Real Property Leases
A-2 Other Leases
A-3 Other Contracts
A-4 TCA Agreement
B Personal Property
C Intangible Property
D Computer Software and Data
E. Assignment and Assumption Agreement
F Xxxx of Sale
Schedule 5.3 Employee Benefit Plans
Exhibit A-1
Real Property Leases
PNV Inc.
Unipower, for the lease of the real property located at 00000 Xxxxxxxxx 00xx
Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxx 00000
Note: The Seller agrees to move any Property that is currently in another
facility to either the Seller's headquarters facility or the headquarters
facilities of the Buyer on or prior to the Closing.
X-0
Xxxxxxx X-0
Other Leases
PNV Inc.
Xerox
Xxxxxx
A-2
Exhibit A-3
Other Contracts
PNV Inc.
Truck Stop Contracts (Multi-stop operators)
Truck Stop Contracts (Individual)
Truck Stop Contracts
Fleet Contracts and Service Agreements
Transcommunications Incorporated
CFL, LLC
CAIS Software Solutions, Inc.
Glarnet Communications Services, Inc.
AT&T Communications
Cisco Systems Capital Corporation
Echostar Communications Corp.
A-3
Exhibit A-4
TCA Agreement
PNV Inc.
[Copy has been provided to the Buyer]
A-4
Exhibit B
Personal Property
PNV Inc.
All personal property set forth on the Fixed Inventory Listed dated December 28,
2000 delivered by Buyer to Seller except the following items:
o The personal property used in the conduct of the xxx.xxx
Business located at 00 Xxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx, 00000
o Leasehold improvements located at a facility other than the
facility set forth on Exhibit A-1
o Laser Printer leased pursuant to a lease with Computer Grants
dated April 5, 2000
o The items set forth below
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DESCRIPTION ASSET ID LOCATION ID QTY COST BASIS ACCUM DEPR NET BOOK
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'99 Chevrolet Express Cargo Van- 1999 CHEVROLET-2 FT.LAUDERDALE 1 21,215.17 11,037.16 10,178.01
'99 Chevrolet G20 Express Cargo 1999 CHEVROLET-1 FT.LAUDERDALE 1 20,455.08 10,641.75 9,813.33
'99 GMC Savana Cargo Van - Leasi 1999 GMC SAVANA-2 FT.LAUDERDALE 1 20,476.94 10,653.10 9,823.84
'99 GMC Savana Cargo Van - Leasi 1999 GMC SAVANA-3 FT.LAUDERDALE 1 20,476.94 10,653.10 9,823.84
'99 GMC Savana Van - Leasing Ass 1999 GMC SAVANA-1 FT.LAUDERDALE 1 20,511.73 10,671.22 9,840.51
1999 CHEVROLET -LEASING ASSOC. 1999 CHEVROLET-7 FT.LAUDERDALE 1 16,583.00 5,528.60 11,054.40
1999 CHEVROLET-LEASING ASSOCIATE 1999 CHEVROLET-8 FT.LAUDERDALE 1 4,000.00 1,248.71 2,751.29
1999 FORD TAURUS LX SEDAN-LEASIN 1999 FORD TAURU-3 FT.LAUDERDALE 1 3,500.00 1,092.62 2,407.38
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TOTAL 127,218.86 61,526.26 65,692.60
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FIXED ASSETS INVENTORY LIST
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DESCRIPTION ASSET ID LOCATION ID QTY COST BASIS ACCUM DEPR NET BOOK
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'98 Chevrolet Cargo Van #G21405 1998 CHEVROLET-1 FT.LAUDERDALE 1 20,970.75 12,675.50 8,295.25
'98 Chevrolet Malibu Sedan -Xxxx 1998 CHEVROLET-3 FT.LAUDERDALE 1 15,688.00 7,839.52 7,848.48
'98 Chevrolet Cargo Van #CG11405 1998 CHEVROLET-2 FT.LAUDERDALE 1 20,468.18 12,371.74 8,096.44
'98 Ford X000 Xxxxx Xxx - Xxxxx 0000 XXXX-0 FT.LAUDERDALE 1 21,301.00 12,423.17 8,877.83
'98 Ford Escort SE 4-xx Xxxxx - 1998 FORD-4 FT.LAUDERDALE 1 14,091.00 8,218.13 5,872.87
'98 Ford Escort SE 4-Xx Xxxxx - 1998 FORD-5 FT.LAUDERDALE 1 14,091.00 8,218.13 5,872.87
'98 Ford Taurus SE 4-Xx Xxxxx - 1998 FORD-2 FT.LAUDERDALE 1 17,888.00 10,432.62 7,455.38
'98 Ford Taurus SE 4-Xx Xxxxx - 1998 FORD-3 FT.LAUDERDALE 1 18,302.00 10,674.08 7,627.92
'98 Ford Taurus SE Sedan White - 1998 FORD-7 FT.LAUDERDALE 1 18,645.00 10,874.11 7,770.89
'98 Ford Taurus XX Xxxxx - #1017 1998 FORD-1 FT.LAUDERDALE 1 18,301.97 11,062.40 7,239.57
'98 Isuzu Hombre Pickup - White 1998 ISUZU-1 FT.LAUDERDALE 1 11,995.00 6,995.69 4,999.31
'98 Isuzu Hombre Pickup - White 1998 ISUZU-2 FT.LAUDERDALE 1 11,995.00 6,995.69 4,999.31
'98 Isuzu Hombre Pickup - White 1998 ISUZU-3 FT.LAUDERDALE 1 11,995.00 6,995.69 4,999.31
'99 Chevrolet Cargo Xxx-Xxxxx - 1999 CHEVROLET-6 FT.LAUDERDALE 1 20,446.15 10,217.24 10,228.91
'99 Chevrolet Express Cargo Van 1999 CHEVROLET-3 FT.LAUDERDALE 1 21,296.16 10,642.02 10,654.14
'99 Chevrolet Malibu Sedan - Whi 1999 CHEVROLET-5 FT.LAUDERDALE 1 15,688.00 7,839.52 7,848.48
'99 Chevrolet Malibu Sedan White 1999 CHEVROLET-4 FT.LAUDERDALE 1 15,688.00 7,839.52 7,848.48
1997 Ford Truck Econoline 1997 FORD TRUCK-1 FT.LAUDERDALE 1 19,720.93 18,490.91 1,230.02
1998 ISUZU - Hombre Pickup - Whi 1998 ISUZU-10 FT.LAUDERDALE 1 11,838.00 5,413.28 6,424.72
1998 ISUZU - Hombre Pickup-White 1998 ISUZU-9 FT.LAUDERDALE 1 11,838.00 5,413.28 6,424.72
1998 ISUZU -Hombre -Pickup-White 1998 ISUZU-11 FT.LAUDERDALE 1 11,838.00 5,413.28 6,424.72
1998 ISUZU Hombre - Pickup - Whi 1998 ISUZU-8 FT.LAUDERDALE 1 11,838.00 5,413.28 6,424.72
1998 ISUZU Hombre - Pickup - Whi 1998 ISUZU-13 FT.LAUDERDALE 1 11,838.00 5,413.28 6,424.72
1998 ISUZU Hombre - Pickup -Whit 1998 ISUZU-12 FT.LAUDERDALE 1 11,838.00 5,413.28 6,424.72
1998 ISUZU Hombre - Pickup White 1998 ISUZU-5 FT.LAUDERDALE 1 11,838.00 5,413.28 6,424.72
1998 ISUZU Hombre - Pickup White 1998 ISUZU-7 FT.LAUDERDALE 1 11,838.00 5,413.28 6,424.72
1998 Isuzu Hombre-Pickup - White 1998 ISUZU-4 FT.LAUDERDALE 1 11,838.00 5,413.28 6,424.72
1998 ISUZU Hombre-Pickup White # 1998 ISUZU-6 FT.LAUDERDALE 1 11,838.00 5,413.28 6,424.72
0000 XXXX -XXXXX00X0X0000000 1999 CHEVROLET-19 FT.LAUDERDALE 1 1,156.11 168.62 987.49
1999 CHEV EXPRESS CARGO XXX -XXX 1999 CHEVROLET-10 FT.LAUDERDALE 1 4,228.00 1,319.85 2,908.15
1999 CHEV EXPRESS CARGO XXX-XXXX 1999 CHEVROLET-11 FT.LAUDERDALE 1 4,228.00 1,319.85 2,908.15
1999 CHEV EXPRESS CARGO XXX-XXXX 1999 CHEVROLET-12 FT.LAUDERDALE 1 4,228.00 1,319.85 2,908.15
1999 CHEV EXPRESS CARGO XXX-XXXX 1999 CHEVROLET-13 FT.LAUDERDALE 1 16,913.68 5,279.99 11,633.69
1999 CHEV G2500 CARGO VAN -LEASI 1999 CHEVROLET-9 FT.LAUDERDALE 1 16,453.86 5,136.41 11,317.45
1999 CHEV G2500 CARGO VAN-LEASIN 1999 CHEVROLET-14 FT.LAUDERDALE 1 4,000.00 1,248.71 2,751.29
1999 CHEVROLET EXPRESS CARGO VAN 1999 CHEVROLET-15 FT.LAUDERDALE 1 16,913.68 5,279.99 11,633.69
1999 CHEVROLET EXPRESS CARGO VAN 1999 CHEVROLET-16 FT.LAUDERDALE 1 16,913.68 5,279.99 11,633.69
1999 FORD TAURUS 4 DOOR SEDAN WH 1999 FORD TAURU-8 FT.LAUDERDALE 1 3,541.00 1,032.69 2,508.31
1999 FORD TAURUS 4 DOOR WHITE -L 1999 FORD TAURU-6 FT.LAUDERDALE 1 3,616.50 1,054.70 2,561.80
1999 FORD TAURUS 4 DOOR WHITE-LE 1999 FORD TAURU-5 FT.LAUDERDALE 1 14,466.42 4,218.97 10,247.45
1999 FORD TAURUS 4 DOOR WHITE-LE 1999 FORD TAURU-7 FT.LAUDERDALE 1 14,163.97 4,130.75 10,033.22
1999 FORD TAURUS LX SEDAN-LEASI 1999 FORD TAURU-4 FT.LAUDERDALE 1 3,500.00 1,092.62 2,407.38
1999 FORD TAURUS LX SEDAN -LEASI 1999 FORD TAURU-1 FT.LAUDERDALE 1 13,936.00 4,646.10 9,289.90
1999 FORD TAURUS LX SEDAN-LEASIN 1999 FORD TAURU-2 FT.LAUDERDALE 1 13,994.00 4,665.45 9,328.55
1999 FORD TAURUS SEDAN SILVER-LE 1999 FORD TAURU-11 FT.LAUDERDALE 1 14,598.99 4,257.63 10,341.36
1999 FORD TAURUS SEDAN SILVER-LE 1999 FORD TAURU-12 FT.LAUDERDALE 1 3,640.00 1,061.55 2,578.45
1999 FORD TAURUS SEDAN WHITE-LEA 1999 FORD TAURU-9 FT.LAUDERDALE 1 14,598.99 4,257.63 10,341.36
1999 FORD TAURUS SEDAN WHITE-LEA 1999 FORD TAURU-10 FT.LAUDERDALE 1 3,640.00 1,061.55 2,578.45
2000 CHEV EXP CARGO VAN WHITE-LE 2000 CHEV WHITE-1 FT.LAUDERDALE 1 21,321.28 4,875.49 16,445.79
2000 CHEV EXP CARGO VAN WHITE-LE 2000 CHEV WHITE-2 FT.LAUDERDALE 1 21,886.88 5,004.80 16,882.08
2000 CHEVROLET EXPRESS - L.A.#10 2000 CHEV EXPRE-2 FT.LAUDERDALE 1 21,903.00 3,644.25 18,258.75
2000 CHEVROLET EXPRESS CARGO VAN 2000 CHEVROLET-1 FT.LAUDERDALE 1 16,978.01 4,951.45 12,026.56
2000 CHEVROLET EXPRESS CARGO VAN 2000 CHEVROLET-2 FT.LAUDERDALE 1 4,244.00 1,237.73 3,006.27
2000 CHEVROLET EXPRESS-L.A.#1069 2000 CHEV EXPRE-1 FT.LAUDERDALE 1 21,796.00 3,626.44 18,169.56
2000 CHEVROLET EXPRESS-L.A.#1072 2000 CHEV EXPRE-3 FT.LAUDERDALE 1 21,903.00 3,644.25 18,258.75
2000 CHEVY EXP-LEASING ASSOC#107 2000 CHEV EXPRE-6 FT.LAUDERDALE 1 21,809.70 2,718.14 19,091.56
2000 CHEVY EXPRESS - LEASING ASS 2000 CHEV EXPRE-5 FT.LAUDERDALE 1 21,624.03 3,153.80 18,470.23
2000 CHEVY EXPRESS - LEASING ASS 2000 CHEV EXPRE-4 FT.LAUDERDALE 1 21,624.03 3,153.80 18,470.23
2000 CHEVY EXPRESS - LEASING ASS 2000 CHEVY EXPR-1 FT.LAUDERDALE 1 22,006.40 3,209.57 18,796.83
2000 CHEVY EXPRESS-LEASING ASSOC 2000 CHEV EXPRE-7 FT.LAUDERDALE 1 21,809.70 2,718.14 19,091.56
2000 CHEVY EXPRESS-LEASING ASSOC 2000 CHEV EXPRE-8 FT.LAUDERDALE 1 21,809.70 2,718.14 19,091.56
2000 CHEVY EXPRESS-LEASING ASSOC 2000 CHEV EXPRE-9 FT.LAUDERDALE 1 21,809.70 2,718.14 19,091.56
2000 CHEVY EXPRESS-LEASING ASSOC 2000 CHEV EXPRE-11 FT.LAUDERDALE 1 20,219.28 2,519.93 17,699.35
2000 CHEVY EXPRESS-LEASING ASSOC 2000 CHEV EXPRE-12 FT.LAUDERDALE 1 1,695.00 105.45 1,589.55
2000 CHEVY EXPRESS-LEASING ASSOC 2000 CHEV EXPRE-10 FT.LAUDERDALE 1 21,809.70 2,718.14 19,091.56
2000 FORD F-250 CARGO VAN-LEASIN 1999 CHEVROLET-17 FT.LAUDERDALE 1 18,367.00 3,445.63 14,921.37
2000 FORD TAURUS - LEASING ASSOC 2000 FORD TAURU-9 FT.LAUDERDALE 1 18,908.00 2,356.50 16,551.50
2000 FORD TAURUS - LEASING ASSOC 2000 FORD TAURU-8 FT.LAUDERDALE 1 18,802.00 2,742.23 16,059.77
2000 FORD TAURUS GOLD PARCHMENT- 2000 FORD TAURU-2 FT.LAUDERDALE 1 18,173.00 4,155.60 14,017.40
2000 FORD TAURUS SE - L.A.#1070 2000 FORD TAURU-7 FT.LAUDERDALE 1 18,347.00 3,052.61 15,294.39
2000 FORD TAURUS SEDAN-LEASING A 1999 CHEVROLET-18 FT.LAUDERDALE 1 14,756.00 2,768.24 11,987.76
2000 FORD TAURUS SEDAN-LEASING A 2000 FORD TAURU-6 FT.LAUDERDALE 1 14,668.00 2,751.69 11,916.31
2000 FORD TAURUS SILVER -LEASING 2000 FORD TAURU-4 FT.LAUDERDALE 1 18,322.00 4,189.66 14,132.34
2000 FORD TAURUS TOREADOR-LEASIN 2000 FORD TAURU-5 FT.LAUDERDALE 1 18,322.00 4,189.66 14,132.34
2000 FORD TAURUS WHITE GRAPHITE 2000 FORD TAURU-1 FT.LAUDERDALE 1 9,801.48 2,241.30 7,560.18
2000 FORD TAURUS WHITE GRAPHITE- 2000 FORD TAURU-3 FT.LAUDERDALE 1 18,173.00 4,155.60 14,017.40
2000 FORD TAURUS-LEASING ASSOC#1 2000 FORD TAURU-11 FT.LAUDERDALE 1 18,908.00 2,356.50 16,551.50
2000 FORD TAURUS-LEASING ASSOC#1 2000 FORD TAURU-12 FT.LAUDERDALE 1 18,908.00 2,356.50 16,551.50
2000 FORD TAURUS-LEASING ASSOC-1 2000 FORD TAURU-10 FT.LAUDERDALE 1 18,908.00 2,356.50 16,551.50
2001 CHEVROLET #1088 2001 CHEVROLET-1 FT.LAUDERDALE 1 22,070.15 1,222.76 20,847.39
00 Xxxxx Xxxxx Xxx #0000 - Lease 98 CHEV VAN1014-1 FT.LAUDERDALE 1 20,403.50 14,427.45 5,976.05
00 Xxxxx XX00000 Cargo Van-Lease 98 CHEV VAN1010-1 FT.LAUDERDALE 1 20,478.32 14,914.88 5,563.44
00 Xxxxx XX00000 Cargo Van-Lease 98 CHEV VAN1011-1 FT.LAUDERDALE 1 20,478.32 14,480.37 5,997.95
00 Xxxxx XX00000 Cargo Van-Lease 98 CHEV VAN1012-1 FT.LAUDERDALE 1 20,736.32 14,662.79 6,073.53
98 Ford Escort Wagon #1013 Lease 98 ESCORT 1013-1 FT.LAUDERDALE 1 13,961.00 9,871.90 4,089.10
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1,303,422.52 458,187.41 845,235.11
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Exhibit C
Intangible Property & Other Assets
PNV Inc.
Filing Fees -Public Service Commission $62,811.00
*Unipower Lease Deposit (See Note) $26,750.00
Intellectual Property related to Proprietary Software in Truck stop Switches
All Custom Software Internally Developed
*Note: If such lease is assumed by the Seller and assigned to the Buyer, the
Buyer shall be obligated to deliver an amount equal to the Security Deposit to
the Seller pursuant to Section 3.4.4 of the Agreement.
C-1
Exhibit D
Computer Software and Licenses
PNV Inc.
PNV Inc. - Software Licenses
Products Licenses held Total
-------- ------------- -----
MS Windows 95 25 25
MS Windows 98 54 oem 10 mcsp 64
MS Windows NT Workstation 161oem 15 mcsp 176
MS Windows 2000 5 mcsp 5
MS Windows NT Server Enterprise 1 1
MS Windows NT Server Dell 19 oemIBM 5 mcsp 54
MS Windows NT Server CALS 220 oem 20 MSBO 240
MS Windows SMS Server 1p 5 mcsp 6
MS Windows SMS Server CALS 10 10
MS SQL Server 1p 4mcsp 5
MS SQL Server CALS 25 25
MS Exchange Enterprise 1p 1mcsp 2
MS Exchange CALS 125 p 50 mcsp 175
MS Word 2000 4 4
MS Office 97 1 1
MS Office 2000 Pro 213 oem 10 mcsp 223
MS FrontPage 2000 5 p 10 mcsp 15
MS Project 98 2 2
MS Project 2000 15p 10 mcsp 25
MS Visio 2000 Standard 15 15
MS Visio 2000 Technical 1 1
MS Visio 2000 Pro 7 7
MS Visual Studio 5 mcsp 5
NetObjects Server 1 1
Technet 1 mcsp 1
Norton Anti Virus 100 100
Act 15 15
PC Anywhere 50 50
Cisco Network Registar 1250 1250
TNG 0 0
AHD 10 10
Winzip 1 1
WS_FTP 1 1
What's Up 20 20
Adobe 10 10
WinFax Pro 1 1
Great Plains accounting software 20 20
Great Plains accounting FRX 4 4
Crystal Reports 25 25
Exhibit E
Assignment Agreement
PNV Inc.
[To be agreed to by the parties prior to Closing]
Exhibit F
Xxxx of Sale
PNV Inc.
[To be agreed to by the parties prior to Closing]
Schedule 5.3
Employee Benefit Plans
PNV Inc.
PNV Inc. 401(k) Plan
PNV Inc. Amended and Restated Severance Program
PNV Inc. 2000 Equity Compensation Plan
Park `N View, Inc. Stock Option Plan
PNV Inc. Employee Stock Purchase Plan
PNV Inc. Supplemental Deferred Compensation Plan
PNV Inc. Health and Welfare Plan
PNV Inc. Premium Only Plan
PNV Inc. Employee Assistance Program
PNV Inc. Management Incentive Plan
Park `N View, Inc. Compensation Plan
Employment agreement between PNV Inc. and Xxxxxx Xxx dated March 1, 1999
Employment agreement between PNV Inc. and Xxxxxx Xxxxxx dated May 24, 1999
Employment offer letter from PNV Inc. to Xxxxx Xxxxxxx dated April 17, 2000
Severance agreement between PNV Inc. and Xxxxxxx Xxxxxxxx dated March 20, 2000
Severance agreement between PNV Inc. and Xxxxxxx Xxxxxxxxxxx dated November 30,
2000
Retention bonus commitments from PNV Inc. to all PNV Inc. officers
Retention severance agreement between PNV Inc. and Xxxxx Xxxxxx dated October
30, 2000
