EXHIBIT 6.3
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into
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this 18/th/ day of February, 1999 (the "Effective Date"), by and between North
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Orlando Sports Promotions, Inc., a Florida corporation (the "Purchaser"), and
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The Information SuperHighway Corporation, a Florida corporation (the "Seller").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller is engaged in the business of providing internet
services, including internet access, e-mail and web hosting, and web application
development (the "Business"); and
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WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
acquire from Seller, substantially all of the assets of Seller relating to the
Business, all on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the parties, on the basis
of, and in reliance upon, the representations, warranties, covenants,
obligations and agreements set forth herein, and upon the terms and subject to
the conditions contained herein, agrees as follows:
ARTICLE I - ACQUISITION OF ASSETS; CLOSING
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1.1 Purchase of Assets. On the terms and subject to the conditions
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set forth in this Agreement, on the Effective Date, Seller agrees to sell,
transfer, assign, convey and deliver to Purchaser, and Purchaser agrees to
purchase, acquire and accept from Seller, all of Seller's right, title and
interest in and to all of the assets, rights and properties of Seller owner or
used by Seller solely in the conduct of the Business, as and to the extent
existing on the Effective Date (the "Assets"), including, without limitation,
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those identified under the heading "Assets" on Schedule 1.1 to this Agreement,
free and clear of any lien, claim, pledge, security interest or encumbrance (the
"Assets"). Any provision of this Agreement notwithstanding, Purchaser shall not
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acquire and there shall be excluded from the Assets the assets identified under
the heading "Excluded Assets" on Schedule 1.1 (the "Excluded Assets").
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1.2 Assumption of Liabilities. Subject to the terms and conditions
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set forth in this Agreement, except as set forth in the second sentence of this
Section 1.2, Purchaser agrees that, on the Effective Date, Purchaser shall
assume and thereafter pay, perform and discharge when due all of the debts,
obligations and liabilities of Seller with respect to the Business (the "Assumed
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Liabilities"), whether such debts, obligations or liabilities become due and
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payable prior to, on or subsequent to the Effective Date, which Assumed
Liabilities include, but are not limited to, those identified under the heading
"Assumed Liabilities" on Schedule 1.2 of this Agreement. Any provision of this
Agreement notwithstanding, Purchaser shall not assume, take subject to, pay,
discharge or in any manner be responsible for, and there shall be excluded from
the Assumed Liabilities, any debts, liabilities or obligations of Seller or the
Business to Seller, any director, officer or shareholder of Seller, or any
spouse or relative not more than one degree removed from any such person (the
"Excluded Liabilities"). Seller, to the extent applicable, shall pay and
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discharge when due all Excluded Liabilities of Seller.
1.3 Consideration; Closing Conditions.
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(a) The aggregate purchase price (the "Consideration") to be
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paid by Purchaser for the Assets is (i) Two Hundred Eight and 33/100 Shares of
the common stock of Purchaser (the "NOSP Stock"), and (ii) the assumption by the
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Purchaser of the Assumed Liabilities, in each case payable in the manner set
forth herein. Payment of the Consideration shall be made by delivery by the
Purchaser to the Seller at the Closing (as defined below) of the share
certificates representing the NOSP Stock that constitutes the Consideration.
Purchaser shall pay all documentary stamp and other taxes due on the issuance of
the NOSP Stock constituting the Consideration.
(b) On the Closing date, Seller shall deliver to the Purchaser:
(i) certified copies of the resolutions of the shareholder and director of
Seller authorizing and approving the execution and delivery of this Agreement
and the transactions contemplated hereby, and (ii) such good and sufficient
instruments of sale, assignment, conveyance and transfer, as shall be required
to fully and effectively vest in Purchaser all right, title and interest in and
to the Assets, free and clear of any and all mortgages, security interests,
liens, charges or encumbrances of any kind.
1.4 Closing Date. The closing of the sale of Assets contemplated by
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this Agreement (the "Closing") shall take place concurrently with the execution
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of this Agreement at the offices of Xxxxx & Xxxxxxxxx LLP, 2300 SunTrust Center,
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000. Purchaser is tendering
herewith the NOSP Stock constituting the Consideration, with all requisite
documentary stamps attached. Simultaneously, Seller hereby sells, conveys,
assigns and transfers to Purchaser good and valid title in and to the Assets,
free and clear of all liens, security interests, pledges or encumbrances of any
kind.
1.5 Nonassignable Assets and Liabilities. To the extent that
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assignment hereunder by Seller to Purchaser of any lease or contract is not
permitted or is not permitted without the consent of a third party, this
Agreement shall not be deemed to constitute an undertaking to assign the same if
such consent is not given or if such an undertaking otherwise would constitute a
breach of or cause a loss of benefits thereunder. Seller will use commercially
reasonable efforts to obtain any and all such third party consents; provided,
however, that Seller shall not be required to pay or incur any cost or expense
to obtain any third party consent which Seller is not otherwise required to pay
or incur in accordance with the terms of the applicable lease or contract. If
any such third party consent is not obtained before the Closing, Seller will
cooperate with Purchaser in any reasonable arrangement designed to provide
Purchaser after the Closing the benefits under the applicable contract or lease.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
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2.1 Representations and Warranties of Sellers. Seller represents and
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warrants to Purchaser as follows:
(a) Corporate Organization. Seller is a corporation, duly
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organized, validly existing and in good standing under the laws of the State of
Florida, and has the power and authority to carry on its business as presently
conducted.
(b) Validity and Execution of Agreement. Seller has all
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necessary power and authority, corporate and otherwise, to enter into, execute
and deliver this Agreement and to fully perform its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by all necessary
action, corporate or otherwise, on the part of Seller, and this Agreement
constitutes the valid and legally binding agreement of Seller, enforceable in
accordance with the terms hereof.
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(c) Litigation and Government Proceedings. Except as disclosed
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to Purchaser, there is no pending or, to the Seller's best knowledge, threatened
suit, claim, action or litigation or administrative, arbitration or other
proceeding or governmental investigation or inquiry (collectively, "Litigation")
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against Seller to which its assets are subject and which would have a material
adverse effect upon the Assets. Seller is not now subject to any judgment,
order, injunction or decree directed specifically to Seller of any court,
administrative agency or other governmental authority which would materially,
adversely affect any of the Assets.
(d) Conflicts; Defaults. Neither the execution and delivery of
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this Agreement by Seller, nor the performance of its obligations hereunder, will
violate, conflict with or constitute a default under, or result in the
acceleration of any obligation under, any contract, lien, permit, deed, lease,
instrument, order, judgment or decree to which Seller is a party, or by which
Seller or the Assets are bound, and will not constitute an event which, after
notice or lapse of time or both, will result in such violation, conflict,
default or acceleration. The execution and delivery of this Agreement by
Seller, and the performance by it of the transactions contemplated hereby, will
not, except as specifically authorized herein, result in the creation or
imposition of any liens, charges or encumbrances of any kind or other rights,
whether legal or equitable, in any third person or entity upon or against any of
the Assets, and will not violate any judgment, decree or order or, to the best
knowledge of the Seller, any law, rule or regulation of any governmental
authority applicable to the Seller or the Assets.
(e) Title; Liens; No Undisclosed Liabilities. Seller has good
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and marketable title to the applicable Assets, and the Seller owns outright all
of the Assets, free and clear from any mortgages, security interests, liens,
charges or encumbrances of any kind. Other than those obligations and
liabilities set forth on Schedule 1.2, there are no obligations or liabilities
of the Seller relating to the Assets or the Business.
(f) Governmental Approvals and Filings. No consent, approval or
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action of, filing with or notice to any court, tribunal, arbitrator, authority,
agency, commission, official or other instrumentality of the United States, any
foreign country, or any domestic or foreign state, county, city or other
political subdivision on the part of Seller or the Company is required in
connection with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, except (i) such consents,
approvals, actions, filings or notices as have been obtained, made or given, or
(ii) where the failure to obtain any such consent, approval or action, to make
any such filing or to give any such notice could not reasonably be expected to
materially adversely affect the validity or enforceability of this Agreement.
(g) Restricted Securities. Seller understands and acknowledges
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that the NOSP Stock being issued to Seller hereby have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), or any state
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securities laws, and are being offered and sold pursuant to exemptions from
registration provided for by such securities laws and the rules and regulations
promulgated thereunder. Accordingly, Seller understands and agrees that the
NOSP Stock cannot be offered, sold or otherwise disposed of unless they are
subsequently registered under the Securities Act and any applicable state
securities laws, or sold in a transaction exempt from such registration
requirements. Seller represents and warrants to Purchaser that Seller (i) is
acquiring the NOSP Stock solely for Seller's own account, for investment only,
and is not purchasing such NOSP Stock with a view to, or for the resale,
distribution, subdivision or fractionalization thereof, (ii) has no contract,
understanding, undertaking, agreement or arrangement, formal or informal, with
any person to sell, transfer or pledge the NOSP Stock to any person, and (iii)
has no present plans to enter into any such contract, undertaking, agreement or
arrangement. Seller understands the legal consequences of the foregoing
representations and warranties to mean that Seller must bear the economic risk
of the investment in the NOSP Stock for an indefinite period of time because the
NOSP Stock has not been registered under the Securities Act or
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any applicable state securities laws and, therefore, cannot be sold unless they
are subsequently registered under applicable securities laws or an exemption
from such registration is available.
(h) Informed Decision to Purchase. Seller acknowledges that
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Purchaser, prior to the execution of this Agreement and prior to the sale of the
NOSP Stock, has made available to the Seller an adequate opportunity to ask
questions of and receive answers from any person authorized to act on behalf of
Purchaser, its operations, business, financial condition and prospects, and that
all documents, records, books and other information pertaining to the Purchaser
and the value of its capital stock requested by Seller have been made available
to Seller to the extent Purchaser possesses such documents, records, books and
other information or can acquire them without unreasonable effort or expense.
Seller acknowledges that the price for the NOSP Stock constituting the
Consideration has been determined arbitrarily in the sense that it was not based
on an independent valuation of the past or projected earnings or asset value of
the Purchaser, nor does it necessarily reflect the current market value of the
NOSP Stock or the net book value per share of the Purchaser's capital stock.
2.2 Representations and Warranties of Purchaser. Purchaser represents
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and warrants to Seller as follows:
(a) Organization and Standing of Purchaser. Purchaser is a
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corporation duly organized and existing in good standing under the laws of the
State of Florida, and has all necessary power to own its property and to carry
on its business as presently conducted.
(b) Validity and Execution of Agreement. Purchaser has all
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necessary power and authority, corporate and otherwise, to enter into, execute
and deliver this Agreement and to fully perform its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by all necessary
action, corporate or otherwise, on the part of Purchaser, and this Agreement
constitutes the valid and legally binding agreement of each such person, as
applicable, enforceable in accordance with the terms hereof.
(c) Capital Stock. Immediately prior to the Closing, the
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authorized capital stock of the Purchaser consists solely of 1,000 shares of
common stock, par value $1.00 per share, of which 500 shares are issued and
outstanding, which shares are issued as follows:
Xxxxxx Xxxxx: 250 shares of NOSP Stock
Xxxxxxx X. Xxxxxxxx: 250 shares of NOSP Stock.
The NOSP Stock to be delivered to the Seller in accordance with this Agreement
shall be duly authorized and validly issued, fully paid and nonassessable. All
of the NOSP Stock to be issued to the Seller in accordance herewith will be
offered, issued and delivered by Purchaser in compliance with federal securities
laws and the applicable state securities laws and none of such shares will be
issued in violation of any preemptive rights of any shareholder of the
Purchaser.
(d) No Conflicts. The execution and delivery by the Purchaser
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of this Agreement do not, and the performance by the Purchaser of its
obligations under this Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result in a violation, default or
breach, as applicable, of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to the Purchaser or any of
its assets and properties (other than such conflicts, violations or breaches
which could not in the aggregate reasonably be expected to materially adversely
affect the validity or enforceability of this Agreement).
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(e) Governmental Approvals and Filings. No consent, approval or
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action of, filing with or notice to any court, tribunal, arbitrator, authority,
agency, commission, official or other instrumentality of the United States, any
foreign country, or any domestic or foreign state, county, city or other
political subdivision on the part of the Purchaser is required in connection
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, except (i) such consents,
approvals, actions, filings or notices as have been obtained, made or given, or
(ii) where the failure to obtain any such consent, approval or action, to make
any such filing or to give any such notice could not reasonably be expected to
materially adversely affect the validity or enforceability of this Agreement.
ARTICLE III - CERTAIN COVENANTS
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3.1 Examination and Investigation. Prior to the Closing, Purchaser
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shall be entitled to make such investigations of the assets, properties,
business and operations of the Seller in connection with the Assets as Purchaser
may wish, which investigation shall be at reasonable times and under reasonable
circumstances. The Seller shall furnish Purchaser with such information and
documents concerning the Assets as Purchaser may reasonably requests, and Seller
shall cooperate fully in connection with any such investigation or examination.
3.2 Preservation of Business. From the date hereof through the
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Closing, the Seller shall use commercially reasonable efforts to (a) conduct the
Business in the ordinary course consistent with past practice in all material
respects, and (b) preserve the Assets.
3.3 Third Party Consents. Seller and Purchaser agree to use
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commercially reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or advisable to
consummate and make effective as promptly as practicable the transactions
contemplated by this Agreement, including, without limitation, the obtaining of
all necessary waivers, consents and approvals.
ARTICLE IV - SURVIVAL OF REPRESENTATIONS
AND WARRANTIES AND INDEMNIFICATION
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4.1 Survival of Representations and Warranties. All representations
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and warranties made or given by the parties in this Agreement shall survive the
Closing and the consummation of all transactions contemplated herein for the
applicable limitations period.
4.2 Indemnification by Sellers. Seller shall indemnify, defend and
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hold harmless and reimburse Purchaser, its directors, officers, and shareholders
(the "Purchaser Indemnified Parties") against, from and for, any and all claims,
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loss, damages, costs and expenses, including, without limitation, reasonable
attorneys' fees incurred by Purchaser Indemnified Parties and which arise out
of, in connection with or related to: (i) any breach by Seller of any
representation or warranty made by Seller contained in this Agreement; or (ii)
any failure by Seller to pay, perform and discharge any debt, obligation or
liability of Seller which is not being assumed by Purchaser in connection with
the transactions contemplated hereby or related hereto.
4.3 Indemnification by Purchaser. Purchaser shall indemnify, defend
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and hold harmless and reimburse Seller, its directors, officers, and
shareholders (the "Seller Indemnified Parties") against, from and for, any and
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all claims, loss, damages, costs and expenses, including, without limitation,
reasonable attorneys' fees incurred by Seller Indemnified Parties and which
arise out of, in connection with or related to: (i) any breach by a Purchaser
of any representation or warranty made by Purchaser
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contained in this Agreement; (ii) any Assumed Liability; or (iii) any claims,
loss, damages, costs and expenses incurred by Purchaser resulting from the
operation of the Business on and after the Closing.
4.3 Indemnification Procedures. In case of any claim or proceeding
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affecting a Purchaser Indemnified Party or Seller Indemnified Party (the
"Indemnified Party"), such Indemnified Party shall promptly notify the party
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required to provide indemnification (the "Indemnifying Party") in writing, and
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the Indemnifying Party, within ten (10) days after notification shall retain
counsel reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party and any others the Indemnifying Party may designate in such
proceeding, and shall pay the fees and disbursements of such counsel related to
such proceeding. Any Indemnified Party shall have the right to retain its own
counsel, but at its own expense, unless (i) the Indemnifying Party have failed
to retain counsel; or, (ii) counsel retained by the Indemnifying Party is
inappropriate due to actual potential differing interests between such an
Indemnified Party and any other person.
ARTICLE V - MISCELLANEOUS
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5.1 Assignment. This Agreement shall not be assignable by any party
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without the prior written consent of the other party. Nothing in this
Agreement, expressed or implied, is intended to confer upon any person, other
than the parties hereto and their successors and permitted assigns, any rights
or remedies under or by reason of this Agreement.
5.2 Further Assistance. Seller agrees that it will, upon request of
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Purchaser, do such further acts, assignments, transfers, agreements, powers of
attorney and assurances as may be reasonably required for the better assigning,
transferring, granting, assuring and confirming to Purchaser or to its
successors and assigns, or for aiding and assisting in collecting and reducing
to possession, the Assets by Purchaser and the performance of any or all
obligations of Seller hereunder. Purchaser agrees that it will cooperate with
Seller in providing the accounting records it has and any information related to
the collection of the accounts receivable assigned to Seller.
5.3 Notices. Any notice, request, instruction or other document to
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be given hereunder by any party shall be in writing and delivered personally or
sent by registered or certified mail, postage prepaid or by overnight delivery
service, to:
If to the Purchaser, to: NORTH ORLANDO SPORTS PROMOTIONS, INC.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile No.: _________________
If to the Seller, to: THE INFORMATION SUPERHIGHWAY CORPORATION
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice is received by any other Person to whom a copy of such notice, request or
other communication is to be delivered pursuant to this Section). Any party
from time
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to time may change its address, facsimile number or other information for the
purpose of notices to that party by giving notice specifying such change to the
other party hereto.
5.4 Expenses. Each of the parties shall bear its own costs and
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expenses (including, without limitation, legal and accounting fees and expenses)
incurred in connection with this Agreement and the transactions contemplated
hereby.
5.5 Governing Law, Jurisdiction and Venue. This Agreement shall be
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governed by and construed in accordance with the Laws of the State of Florida
applicable to an agreement executed and performed in such State without giving
effect to the conflicts of laws principles thereof; and the courts of such State
in the Ninth Judicial Circuit and the United States District Court for the
Middle District of Florida (Orlando Division) shall be the exclusive courts of
jurisdiction and venue for any litigation, special proceeding or other
proceeding as between the parties that may be brought, or arise out of, in
connection with, or by reason of this Agreement. Purchaser and Seller hereby
consent to the jurisdiction of such courts.
5.6 Modification; Waiver. This Agreement shall not be modified
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except by an instrument in writing duly signed on behalf of the party against
whom enforcement of such modification is sought. No waiver of any provision of
this Agreement shall be effective unless in writing and similarly signed, nor
shall any failure of any party to enforce any right or remedy hereunder be
deemed a waiver of such right or remedy for the future in the same or any
situation.
5.7 Headings. Captions have been inserted in this Agreement for
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reference only and shall not limit or otherwise affect any of its terms and
provisions.
5.8 Counterparts. This Agreement may be executed concurrently in
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one or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
5.9 Severability. Each section, subsection and lesser section of
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this Agreement constitutes a separate and distinct undertaking, covenant or
provision hereof. In the event that any provision of this Agreement shall be
determined to be invalid or unenforceable, such provision shall be deemed
limited by construction in scope and effect to the minimum extent necessary to
render the same valid and enforceable, and, in the event such a limiting
construction is impossible, such invalid or unenforceable provision shall be
deemed severed from this Agreement, but every other provision of this Agreement
shall remain in full force and effect.
5.10 Entire Agreement. This Agreement (as amended in writing from
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time to time), the exhibits and the schedules delivered pursuant hereto contain
the entire agreement between the parties with respect to the transactions
contemplated hereby and all prior agreements, understandings and negotiations
are superseded hereby. No representation, warranty or agreement, express or
implied, has been made other than as contained herein.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officer of each party hereto as of the date first above
written.
"Purchaser":
NORTH ORLANDO SPORTS PROMOTIONS, INC.
By: /s/ Xxxxxx X. Kurir
--------------------------------
Name: Xxxxxx X. Kurir
Title: CEO
"Seller":
THE INFORMATION SUPERHIGHWAY CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx, President
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Schedule 1.2
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Assumed Liabilities
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Seller's lease for space at Tradewinds Office Building for 3 year term, starting
September 1997, at $209/month.
AT&T Universal Business Card (VISA) credit card liabilities, which are generally
paid off monthly. As of February 26, 1999, outstanding debt is estimated to be
less than $750.00.
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Exhibit A
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XXXX OF SALE
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THIS XXXX OF SALE dated as of February 18, 1999, by The Information SuperHighway
Corporation, a Florida corporation (the "Seller") to North Orlando Sports
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Promotions, Inc., a Florida corporation (the "Purchaser").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Asset Purchase Agreement, dated as of February 18, 1999
(the "Purchase Agreement"), by and between the Purchaser and the Seller provides
------------------
for, among other things, the transfer and sale to the Purchaser of certain
assets of the Seller, all as more fully described in the Purchase Agreement, for
consideration in the amount and upon the terms provided in the Purchase
Agreement; and
WHEREAS, by this instrument the Seller is vesting in the Purchaser all
of the properties, assets, and rights of the Seller hereinafter described.
NOW, THEREFORE, in consideration of the premises and of other valuable
consideration to the Seller in hand paid by the Purchaser, at or before the
execution and delivery hereof, the receipt and sufficiency of which by the
Seller is hereby acknowledged, the Seller has conveyed, granted, bargained,
sold, transferred, set over, assigned, aliened, remised, released, delivered and
confirmed, and by this Xxxx of Sale does convey, grant, bargain, sell, transfer
set over, assign, alien, remise, release, deliver and confirm unto the
Purchaser, its successors and assigns forever, all of the Seller's right, title
and interest in the Assets (as defined in Section 1.1 of the Purchase Agreement)
of every nature and description, whether tangible or intangible, whether real,
personal, or mixed, whether accrued, contingent or otherwise, wherever located.
TO HAVE AND TO HOLD all of the Assets unto the Purchaser, its
successors and assigns to its and their own use forever.
The Seller hereby constitutes and appoints the Purchaser, its
successors and assigns, the Seller's true and lawful attorney, with full power
of substitution, in the Seller's name and stead, but on behalf and for the
benefit of the Purchaser, its successors and assigns, to demand and receive any
and all of the Assets, and to give receipts and releases for and in respect of
the same, and any part thereof, and from time to time to institute and prosecute
in the Seller's name, or otherwise, for the benefit of the Purchaser, its
successors and assigns, any and all proceedings at law, in equity or otherwise,
which the Purchaser, its successors and assigns, may deem proper for the
collection or reduction to possession of any of the Assets or for the collection
and enforcement of any claim or right of any kind hereby sold, conveyed,
transferred and assigned, or intended so to be, and to do all acts and things in
relation to the Assets which the Purchaser, its successors and assigns shall
deem desirable, the Seller hereby declaring that the foregoing powers are
coupled with an interest and are and shall be irrevocable by the Seller or by
their death or dissolution or in any manner or for any reason whatsoever.
The Seller hereby covenants that, from time to time after the delivery
of this instrument, at the Purchaser's request and without further
consideration, the Seller will do, execute, acknowledge, and deliver, or will
cause to be done, executed, acknowledged and delivered, all and every such
further acts, deeds, conveyances, transfers, assignments, powers of attorney and
assurances as reasonably may be
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required more effectively to convey, transfer to and vest in the Purchaser, and
to put the Purchaser in possession of, any of the Assets.
Nothing in this instrument, express or implied, is intended or shall
be construed to confer upon, or give to, any person, firm or corporation other
than the Purchaser and its successors and assigns any remedy or claim under or
by reason of this instrument or any terms, covenants or condition hereof, and
all the terms, covenants and conditions, promises and agreements in this
instrument contained shall be for the sole and exclusive benefit of the
Purchaser and its successors and assigns.
This instrument is executed by, and shall be binding upon, the Seller,
its successors and assigns, for the uses and purposes above set forth and
referred to, effective immediately upon its delivery to the Purchaser. This
instrument shall be governed by and construed in accordance with the laws of the
State of Florida applicable to an agreement executed and performed in such State
without giving effect to the conflicts of laws principles thereof; and the
courts of such State in the Ninth Judicial Circuit and the United States
District Court for the Middle District of Florida (Orlando Division) shall be
the exclusive courts of jurisdiction and venue for any litigation, special
proceeding or other proceeding as between the parties that may be brought, or
arise out of, in connection with, or by reason of this instrument. Purchaser
and Seller hereby consent to the jurisdiction of such courts.
IN WITNESS WHEREOF, the Seller has executed this Xxxx of Sale or have
caused this Xxxx of Sale to be executed on their behalf by their duly authorized
officers as of the date first above written.
Attest: THE INFORMATION SUPERHIGHWAY
CORPORATION
_______________________________ By:____________________________
Secretary Xxxxxx X. Xxxxx, President
Receipt of the foregoing instrument acknowledged:
Attest: NORTH ORLANDO SPORTS PROMOTIONS,
INC.
_______________________________ By:____________________________
Secretary Name:
Title:
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Exhibit B
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement"), dated as
of February 18, 1999, by and between North Orlando Sports Promotions, Inc., a
Florida corporation (the "Purchaser"), and The Information SuperHighway
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Corporation, a Florida corporation (the "Seller").
------
WHEREAS, by an Asset Purchase Agreement dated as of February 18, 1999
(the "Purchase Agreement"), among the Purchaser and the Seller, the Seller has
------------------
agreed to sell and assign the Assets to Purchaser; and
WHEREAS, as part of the Consideration for the Assets, the Purchaser
has agreed to assume the Assumed Liabilities; and
WHEREAS, the parties hereto desire to execute this Agreement to
further evidence the assignment by Seller and the assumption by Purchaser;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
1. Definitions. Except as otherwise provided herein, all capitalized
-----------
terms contained and not defined herein (including the recitals hereto) shall
have herein the respective meanings ascribed to them in the Purchase Agreement.
2. Assignment. Seller hereby sells, transfers, conveys, assigns and
----------
sets over to Purchaser, its successors and assigns, all of the Assets,
including, without limitation, the leases, contracts, commitments and
undertakings which constitute a portion of the Assets (such leases, contracts,
commitments and undertakings, the "Assigned Agreements").
-------------------
3. Assumption of Assumed Liabilities. Purchaser hereby assumes and
---------------------------------
undertakes to pay, perform and discharge the Assumed Liabilities.
4. Assignability of Assigned Agreements. To the extent that any of
------------------------------------
the Assigned Agreements are not assignable without the consent of another party
and such consent has not been obtained on or prior to the Effective Date, this
Agreement shall not constitute an assignment or attempted assignment if such
assignment would constitute a breach thereof. Any obligation of the Seller
under the Purchase Agreement to effect the transfer of any Assigned Agreement to
Purchaser shall not be terminated or abridged by this provision.
5. Third Party Consents and Waivers. The Seller agrees and
--------------------------------
undertakes to secure those consents and waivers required by the Purchase
Agreement, and the Seller agrees to cooperate with Purchaser in obtaining any
consents or waivers of third parties necessary to transfer to Purchaser all
property, rights and benefits in and under the Assigned Agreements.
6. Further Assurances. At any time and from time to time after the
------------------
date hereof, at the request of Purchaser, and without further consideration, the
Seller shall execute and deliver such other instruments of sale, transfer,
conveyance, assignment and confirmation and take such other action as Purchaser
may reasonably request as necessary or desirable in order to more effectively
transfer, convey and assign to Purchaser the Assets.
--------------------------------------------------------------------------------
Page 13
7. Governing Law; Jurisdiction and Venue. This Agreement shall be
-------------------------------------
governed by and construed in accordance with the Laws of the State of Florida
applicable to an agreement executed and performed in such State without giving
effect to the conflicts of laws principles thereof; and the courts of such State
in the Ninth Judicial Circuit and the United States District Court for the
Middle District of Florida (Orlando Division) shall be the exclusive courts of
jurisdiction and venue for any litigation, special proceeding or other
proceeding as between the parties that may be brought, or arise out of, in
connection with, or by reason of this Agreement. Purchaser and Seller hereby
consent to the jurisdiction of such courts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Attest: NORTH ORLANDO SPORTS PROMOTIONS,
INC.
_______________________________ By:____________________________
Secretary Name:
Title:
Attest: THE INFORMATION SUPERHIGHWAY
CORPORATION
_______________________________ By:____________________________
Secretary Xxxxxx X. Xxxxx, President
--------------------------------------------------------------------------------
Page 14
Schedule 1.1
------------
Assets
------
Description of Asset Acquisition Date Original Value Condition
--------------------------------------------------------------------------------
Gateway P-120 Computer 4/94 $ 2,541.98 Good
Xxxxxxxxxx PM2-ER Router 4/96 2,786.53 Good
4 Motorola Modems 4/96 1,157.22 Good
Adtran TSU 1/96 900.00 Good
Gateway P-133 Computer 7/96 2,680.48 Good
2 Motorola Modems 11/96 298.88 Good
Xxxxxxxxxx 5-BRI Card 10/96 1,490.00 Good
Xxxxxxxxxx OR-HS, Adtran TSU 12/96 1,940.65 Good
Acer P-66 Computer 1/97 1,109.82 Good
2 hard Drives 10/96 540.00 Good
Ethernet Hub 5/96 80.00 Good
UPS 8/96 110.00 Good
Equipment Rack 8/96 40.00 Good
Silicon Graphics Indy Computer 3/98 1,000.00 Good
Xxxxxxxxxx OR-HS, Adtran TSU 3/98 900.00 Good
Xxxxxxxxxx PM-3 Router
w/20 digital modems 7/98 7,616.63 Good
---------
Total: 25,192.00
=========
Also included: all Internet-related receivables dated March 1, 1999 or later.
Excluded Assets
---------------
Any and all assets not explicitly described under "Assets" above.
15
Schedule 1.2
------------
Assumed Liabilities
-------------------
Seller's lease for space at Tradewinds Office Building for 3 year term, starting
September 1997, at $209/month.
AT&T Universal Business Card (VISA) credit card liabilities, which are generally
paid off monthly. As of February 26, 1999, outstanding debt is estimated to be
less than $750.00.
16
