XXXX OF SALE AND ASSIGNMENT
THIS XXXX OF SALE AND ASSIGNMENT, is made and delivered this 24th day of
June 1999, by VODAVI COMMUNICATION SYSTEMS, INC., a Delaware corporation (herein
"Seller"), and AZTEC INTERNATIONAL LLC, a Delaware limited liability company
("Purchaser").
WHEREAS, Seller has agreed to sell, transfer and assign to Purchaser and
Purchaser has agreed to purchase from Seller, all of Seller's right, title and
interest in and to the Purchased Assets as the same are described in the
attached Schedule A for the total consideration of $494,616 which is to be paid
by the delivery of Purchaser's Purchase Order of even date (the "Purchase
Order').
NOW, THEREFORE, for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, it is hereby agreed that:
1. CONVEYANCE. Seller hereby sells, assigns, transfers, conveys and
delivers to Purchaser all of the right, title and interest of Seller in and to
each of the Purchased Assets owned by it as the same are defined and described
in the Schedule A hereto.
2. REPRESENTATION AND WARRANTY. Seller represents and warrants to Purchaser
that, at the date hereof, the machinery and equipment sold hereunder is in good
working order reasonable wear and tear excepted, Seller has good and marketable
title to the Purchased Assets being conveyed by it hereunder and under the
Purchase Agreement, and has transferred to and vested in Purchaser good and
marketable title to each of the Purchased Assets herein conveyed, free and clear
of all liens, claims, charges, encumbrances and security interests of any kind
or nature.
3. UNDERTAKINGS. If, subsequent to the date hereof, any property that is
part of the Purchased Assets herein conveyed comes into possession of Seller,
Seller shall promptly deliver the same to Purchaser and, if such property is in
the form of checks, drafts or other negotiable instruments, Seller shall
promptly endorse the same to Purchaser. If, subsequent to the date hereof, any
property that is not part of the Purchased Assets comes into the possession of
Purchaser, Purchaser shall promptly deliver the same to Seller and, if such
property is in the form of checks, drafts or other negotiable instruments,
Purchaser shall promptly endorse the same to Seller.
4. The REPAIR AND REFURBISHMENT AGREEMENT. Nothing contained in this Xxxx
of Sale and Assignment shall be deemed to supersede, limit or modify any of the
obligations, agreements, covenants or warranties of Seller or Purchaser
contained in the Service Agreement dated August 28, 1998 and Repair and
Refurbishment Agreement of the same date herewith, all of which survive the
execution and delivery of this Xxxx of Sale and Assignment. If any conflict
exists between the terms of this Xxxx of Sale and Assignment and the Repair and
Refurbishment Agreement, then the terms of the Repair and Refurbishment
Agreement shall govern and control.
5. GOVERNING LAW. This Xxxx of Sale and Assignment shall be governed by and
construed in accordance with the laws of the State of Arizona without regard to
conflicts of laws principles.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Xxxx of Sale and
Assignment to be executed and delivered as of the date first above written.
SELLER:
VODAVI COMMUNICATION SYSTEMS, INC.
By /s/ Xxxx Xxxxxx
-------------------------------------
President
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SCHEDULE A TO XXXX OF SALE
BY VODAVI COMMUNICATIONS SYSTEMS, INC. AND
VODAVI REPAIR SERVICES, INC. TO AZTEC INTERNATIONAL LLC
Inventory described in Inventory List of Seller's Repair Division dated
June 24, 1999 consisting of 60 pages.
Machinery equipment and furniture used in the Seller's repair business
described in a Fixed Asset List of Seller's Repair Division dated June 24, 1999
consisting of 10 pages.
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SCHEDULE A
Terms and Conditions of Purchase Order
from Aztec International in favor of
Vodavi Communications Systems dated June 24, 1999
The purchase order is subject to the following terms and conditions:
1. Vodavi Communications Systems Inc. will transfer title to certain equipment
and inventory which/are described in a certain Xxxx of Sale, a copy of
which is attached hereto as Exhibit B.
2. Vodavi Communications Systems, Inc. shall ship said equipment and inventory
to Aztec at destinations which it specifies.
3. The obligation to make payment as set forth in the purchase order is
contingent upon Aztec receiving delivery of said test equipment and
inventory.
4. AZTEC INTERNATIONAL LLC'S RIGHT TO SET-OFF. Aztec International LLC will
have a right to set-off any indemnification obligation arising under
paragraph 12 of the Repair and Refurbishment Agreement of even date
herewith against the amounts due under this purchase order. If the amounts
of the inventory and the test equipment sold and delivered pursuant to the
Xxxx of Sale of the same date hereof are less than the quantities stated in
Schedule A, the amounts due under this purchase order shall be reduced to
account for such shortages. The valuations of the inventory and test
equipment shall be the standard values used on Schedule A. Aztec
International, LLC shall make any claims for adjustments within 30 days
from its receipt of the inventory and test equipment. Any reductions in
this purchase order shall be made from payments first becoming due under
this purchase order.
