Prepared by XXXXXXX CORPORATION xxx.xxxxxxxxxxxxxx.xxx
Exhibit 10.8
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into this day of December, 1999 by and between TechnoVision
Communications, Inc., a Georgia corporation or its designee ("Buyer"), on the one hand, and Xxxxx X. Xxxxxx (the "Trustee" and "Seller"), the duly appointed Chapter 11 trustee for the estate of In re Alliance Leasing
Corporation, a Nevada corporation fdba Airlink Corporation and Turbo Leasing Corporation ("Alliance") pending in the United
States Bankruptcy Court for the Southern District of California as Case No. 98-14142-B11 (the "Bankruptcy Estate"), on the other hand (the Buyer and Seller/Trustee are
hereinafter collectively referred to as the "Parties"), with respect to the following facts:
Recitals
A. Alliance
was a corporation that leased equipment and other personal property primarily under 60 month leases. On October 15, 1998, Alliance filed a
voluntary petition under Title 00, Xxxxxxx 00 xx xxx Xxxxxx Xxxxxx Code (the "Bankruptcy Filing"). Alliance operated as Debtor-in-Possession until on or about
November 25, 1998 when the United States District Court for the Southern District of California ordered the appointment of a bankruptcy trustee. On December 10, 1998, Xxxxx X. Xxxxxx was
appointed Chapter 11 Trustee of the Bankruptcy Estate.
B. Buyer
is one of Alliance's equipment lessees under certain leases, copies of which are attached collectively hereto as Exhibit 1 and incorporated herein by
this reference (the "Leases"). Buyer desires to acquire certain assets of Alliance from the Trustee and the Bankruptcy Estate, namely the Leases and all equipment related thereto as set forth on the
Addendum attached thereto (the "Assets") on the terms and conditions set forth herein.
C. Buyer
and Trustee have entered into a separate Settlement Agreement and Mutual General Release ("Settlement Agreement") regarding Buyer's existing obligations, if
any, under the Leases in consideration for which Buyer has agreed to purchase the Leases and Assets free and clear of all liens, claims and encumbrances as discussed below.
IN
CONSIDERATION OF the promises and mutual covenants contained in this Agreement, in reliance on the recitals set forth above, and for good and valuable consideration, the Parties
agree as follows:
1. Purchase and Sale of Assets and Leases. On the Closing Date (as hereinafter defined) Seller will
transfer to Buyer, and Buyer will purchase from Seller, all of Seller's right, title and interest to the Leases and the Assets.
2. Purchase Price. The purchase price of the Leases and the Assets shall be Seven Hundred Seventy Five
Thousand Dollars ($775,000.00) (U.S.) ("Purchase Price"), payable by Buyer to the Seller as follows:
2.1 Initial Deposit. Seller acknowledges receipt of the sum of Seventy Five Thousand Dollars
($75,000.00) (U.S.) already deposited with Trustee (the "Deposit"). Buyer's Deposit shall be non-refundable to Buyer should Buyer unilaterally terminate this Agreement for any reason, or
otherwise fail to close the transaction contemplated hereby. If the sale transaction closes as set forth herein, the Non-Refundable Deposit shall be credited toward the Purchase Price. If
Seller fails to satisfy its obligations hereunder or under the Settlement Agreement, Buyer shall be entitled to return of the Deposit.
2.2 Balance of Purchase Price. Upon the Closing Date (as hereinafter defined), Buyer shall pay the
Balance of the Purchase Price of Seven Hundred Thousand Dollars ($700,000.00) (U.S.) in cash. There are no contingencies to Buyer's performance under this Agreement, unless as set forth below.
2.3 Closing Costs. Broker's commissions (if any) shall be borne by Buyer. Notwithstanding anything
herein to the contrary, Buyer is not responsible for compensation of any kind to any brokers not retained by Buyer; Seller represents and warrants that he has not retained a broker to assist in this
transaction. Each party hereto shall bear their own attorneys' fees and related costs, subject to Section 9.4, below or in connection with the closing.
2.4 Taxes. Seller shall be responsible for all sales taxes, transfer taxes or other taxes or
assessments associated with the sale.
3. Seller's Obligations Regarding Exclusivity. Notwithstanding anything herein to the contrary, prior
to Closing, Seller may not entertain additional offers, and may not execute any agreement with anyone other than Buyer for the sale of the Leases or Assets.
4. No Representations. BUYER AGREES TO ACQUIRE THE ASSETS FROM SELLER "AS IS" AND "WHERE IS" AND
ACKNOWLEDGES THAT EXCEPT AS CONTAINED HEREIN SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE ASSETS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
REPRESENTATION OR WARRANTY REGARDING CONDITION OF THE ASSETS, OR THE FITNESS, DESIRABILITY, OR MERCHANTABILITY THEREOF OR SUITABILITY THEREOF FOR ANY PARTICULAR PURPOSE. BUYER FURTHER ACKNOWLEDGES AND
REPRESENTS THAT IT HAS REVIEWED AND INSPECTED THE ASSETS, AND ENTERS INTO THIS AGREEMENT AFTER INDEPENDENT INVESTIGATION OF THE FACTS AND CIRCUMSTANCES RELATING TO THE TRANSACTION DESCRIBED HEREIN.
BUYER AND SELLER FURTHER ACKNOWLEDGE THAT SELLER'S TRANSFER OF TITLE TO THE LEASES AND ASSETS SHALL BE FREE AND CLEAR OF ALL LIENS, CLAIMS AND ENCUMBRANCES AS ALLOWED UNDER 11 U.S.C. §
363(f) and (m). BUYER AGREES THAT SELLER HAS NO OBLIGATION OR LIABILITY WHATSOEVER WITH RESPECT TO ANY SEPARATE AGREEMENTS, INDEMNITIES, REPRESENTATIONS OR WARRANTIES ENTERED INTO BY BUYER UPON
EXECUTION HEREOF.
4.1 Liens. The Leases and Assets are to be sold free and clear of all liens, claims and interests
pursuant to the provisions of 11 U.S.C. § 363(f), with all such liens and interests (if any) to attach to the proceeds of the sale upon the Closing Date. The net proceeds shall be
transferred into an interest-bearing account opened by the Trustee and all liens shall attach thereto pending further order of the Bankruptcy Court.
4.2 Assumption of Liability. Unless agreed to by Buyer in writing, Buyer is not assuming any contracts,
purchase orders, leases, liabilities or other obligations of Seller or Alliance.
5. Conditions to Closing. Seller's obligation to transfer the Leases and Assets to Buyer and Buyer's
obligation to purchase the Leases and Assets shall be subject to fulfillment by Buyer and Seller, as applicable, of the following conditions on or before the Closing Date (as hereinafter defined):
5.1 Deliveries. The Parties shall have made the deliveries as required in paragraph 6, below.
5.2 Bankruptcy Court Approval of the Sale Agreement. The Bankruptcy Court for the Southern District of
California ("Bankruptcy Court") shall issue a final, non-appealable order (the "Sale Order") and such Sale Order shall authorize and confirm each of the provisions of this Agreement and
the transaction contemplated herein. Said Sale Order shall provide that the sale is a sale of the Leases and Assets free
and clear of liens, claims and interests pursuant to 11 U.S.C. § 363(f) subject to and in compliance with the provisions of 11 U.S.C. § 363(m).
5.3 Bankruptcy Court Approval of the Settlement Agreement and Mutual General Release. The Bankruptcy
Court shall issue a final, non-appealable order ("Settlement Order") approving the terms and conditions of the separate Settlement Agreement executed concurrently with this Agreement.
6. Deliveries at Closing. The Parties shall make the following deliveries at Closing (as hereinafter
defined):
6.1 Executed Documents. Buyer and Seller shall exchange the executed originals of this Agreement and
the Settlement Agreement, subject to Section 10(b) of the Settlement Agreement, which provides for execution in several counterparts.
6.2 Xxxx of Sale. Seller shall deliver to Buyer a Xxxx of Sale in form and substance attached hereto as
Exhibit "2" together with Uniform Commercial Code Form UCC-2 forms terminating any and all liens of record affecting the Leases and/or Assets.
6.3 Bankruptcy Court Orders. Seller shall provide to Buyer conformed copies of the entered Sale Order
and Settlement Order.
6.4 Balance of Purchase Price. Buyer shall deliver to Seller the balance of the purchase price as set
forth in paragraph 2.2 above.
7. Closing. The closing ("Closing") shall occur as soon as reasonably possible after entry of the Sale
Order and the Settlement Order by the United States Bankruptcy Court, Southern District of California, but no later than 5:00 p.m. (Pacific Standard Time) on the day that is 15 calendar days
after entry of the Sale Order and Settlement Order, or at such time as the Parties may mutually agree ("Closing Date").
8. Assignment of Purchase Rights by Buyer. Buyer may assign, encumber or otherwise transfer its
purchase rights under this Agreement to any person(s) or entity(ies) it so designates, without Seller's prior written consent for the convenience of Buyer. Seller agrees that the Agreement may be
assigned by Buyer, and an assignee of Buyer may take title to the Leases and Assets on the Closing Date, in Buyer's sole discretion; provided, however, that Buyer shall not be relieved of its
obligations under the Agreement.
8.1 Matters Satisfactory to Parties and Their Counsel. All matters incident to the transactions
contemplated hereby shall be in a form and substance satisfactory to Buyer and Seller and their representative counsel.
9. Miscellaneous.
9.1 Entire Agreement. This Agreement and the written agreements referred to herein and executed in
connection herewith constitute the entire understanding between the Parties with respect to the subject matter hereof, and supersede all negotiations, prior discussions or other agreements, oral or
written.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
9.3 Counterparts. This Agreement may be executed in counterparts.
9.4 Fees and Costs. If any action is instituted to enforce any provision of this Agreement, including
an action instituted after the bankruptcy of a party, the prevailing party in such action shall be entitled to recover from the losing party reasonable attorneys' fees and costs as awarded by the
court or arbitrator.
9.5 Amendment. This Agreement may only be amended or modified by the written agreement of the Parties.
9.6 Severability. If any of the provisions of this Agreement are held invalid under any law, such
invalidity shall not affect the remainder of the Agreement.
9.7 Litigation Forum. Any action arising out of this Agreement shall be brought and maintained in the
United States Bankruptcy Court or the United States District Court for the Southern District of California, and no other court.
9.8 No Assignment. Neither this Agreement nor any rights or obligations hereunder shall be assigned by
any party without the prior written consent of the other party hereto, except as set forth in paragraph 8, above.
9.9 Further Assurances. Each party agrees to perform any further action and to execute and deliver any
further documents reasonably necessary and proper to carry out the intent of this Agreement.
9.10 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the Parties.
9.11 Headings. The headings of the various sections of this Agreement are for convenience only and are
not intended to explain or modify any of the provisions of this Agreement.
9.12 Representations and Warranties. Each party signing this Agreement represents and warrants that it
has the legal authority to enter into this Agreement covered in Settlement Agreement and bind the entity upon whose behalf it signs. Buyer and Seller represent and warrant that this Agreement, upon
the execution and delivery to the other party signing this Agreement, is a valid and binding obligation of Buyer and Seller, enforceable in accordance with its terms.
9.13 Survival of Obligations. All obligations of Buyer and Seller set forth in this Agreement shall
survive the Closing and Closing Date.
9.14 Effect of Course of Dealing. No course of dealing between the Parties in exercising any of their
respective rights under this Agreement shall operate as a waiver of any such rights, except where expressly waived in writing.
9.15 Notices. All notices to be given by either party to this Agreement shall be in writing, and shall
be given by certified or registered mail, return receipt requested, postage prepaid, to the other, sent by telefax or facsimile transmission, or personally delivered, at the addresses set forth below
(or at such other address for a party has specified by like notice) and shall be deemed given when received if sent by facsimile transmission or personally delivered, or if mailed as provided herein,
on the third day after it is so placed in the mail.
The
addresses referred to above are:
| Buyer:
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| TechnoVision Communications, Inc.
0000 Xxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
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Seller:
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Bankruptcy Estate of Alliance Leasing Corporation
c/o Xxxxx X. Xxxxxx
Chapter 11 Trustee
Xxxxx X. Xxxxxx
X.X. Xxx 000000
Xxx Xxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
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With copies to:
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Xxxxxx X. Xxxxxxx, Esq.
(counsel for Seller) Xxxxxxxx, Xxxx, Xxxxxxxxxx & Xxxxxxx LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Business (000) 000-0000
Fax (000) 000-0000
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Xxxxxxx X.X. Xxxxxxxxxx, Esq. (counsel for Buyer)
Xxxx, Forward, Xxxxxxxx & Scripps LLP
000 Xxxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Either
party at any time may give notice of another address in accordance with the provisions of this paragraph.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be fully executed as of the day and year first above written.
| SELLER:
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| BUYER:
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ALLIANCE LEASING CORPORATION,
a California corporation,
Debtor, United States Bankruptcy Court,
Southern District of California,
Case No. 98-14142-B11
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TECHNOVISION COMMUNICATIONS, INC.,
a Georgia corporation
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By:
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/s/ Xxxxx X. Xxxxxx
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By:
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/s/ Xxxxx X. Xxxx
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| Xxxxx X. Xxxxxx, Chapter 11 Trustee
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| Xxxxx X. Xxxx, Chief Executive Officer
| EXHIBIT "1"
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LEASES AND ADDENDA
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Lease Nos.: 9802002
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9802003
9802004
9803001
9803003
9803006
9803015
9803011
9803012
9804030
9804031
9804039
9805043
EXHIBIT "2"
XXXX
OF SALE
Xxxxx
T, Xxxxxx (the "Trustee" and "Seller"), the duly appointed Chapter 11 trustee for the estate of In re Alliance Leasing Corporation, pending in the United States Bankruptcy Court
for the Southern District of California as Case No. 98-14142-B11 (the "Bankruptcy Estate"), for good and valuable consideration, receipt of which is hereby acknowledged,
and pursuant to the Asset Purchase Agreement dated
as of , 1999 (the "Agreement") between Seller and TechnoVision or its designee ("Buyer"), does hereby sell, convey, assign, transfer and deliver to Buyer on the
date hereof, all of Seller's and the Bankruptcy Estate's right, title and interest in and to the Leases and Assets (as those terms are defined in the Agreement).
ALL
LEASES AND ASSETS ARE TRANSFERRED, "AS IS" AND "WHERE IS." SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE ASSETS
CONVEYED HEREBY, AND SPECIFICALLY EXCLUDES ANY REPRESENTATION OR WARRANTY REGARDING CONDITION OF THE ASSETS, OR THE FITNESS, DESIRABILITY OR MERCHANTABILITY THEREOF, OR THE SUITABILITY THEREOF FOR ANY
PARTICULAR PURPOSE. ALL LEASES AND ASSETS ARE TRANSFERRED FREE AND CLEAR OF ALL LIENS, CLAIMS AND ENCUMBRANCES OF ANY KIND AS PROVIDED FOR IN 11 U.S.C. § 363(f) and (m).
BUYER
ACKNOWLEDGES AND REPRESENTS THAT IT HAS REVIEWED AND INSPECTED THE ASSETS, AND HAS INDEPENDENTLY INVESTIGATED THE FACTS AND CIRCUMSTANCES RELATING TO THE TRANSACTION DESCRIBED
HEREIN AND IN THE AGREEMENT.
This
Xxxx of Sale is entered into pursuant to the Agreement. Buyer acknowledges and agrees that Seller shall have no liability nor shall Buyer have any recourse to Seller hereunder
except as provided for in the Agreement. Seller shall execute all other documents necessary to effectuate the transfer including execution of UCC-2 Financing Statements.
IN
WITNESS WHEREOF, Seller has caused the same to be signed on its behalf as of , 199 .
ALLIANCE
LEASING CORPORATION, a California corporation, Debtor, United States Bankruptcy Court, Southern District of California, Case No. 98-14142-B11
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Xxxxx X. Xxxxxx, Chapter 11 Trustee
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ACCEPTED:
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| Buyer
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| Printed Name
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