as of March 18, 1994, among Alphafax, the Lessee, the General Partner, the
Owner Participant, the Trust, the Individual Owner Trustee, the Corporate Owner
Trustee, the Indenture Trustee and Trust Company Bank, as Lender (as amended,
the "Participation Agreement").
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENTS
1.
PURCHASE AND SALE.
Seller agrees to sell and convey the Owner Participant Interest to Purchaser,
and Purchaser agrees to purchase the Owner Participant Interest from Seller, all
on the terms and conditions set forth in this Agreement.
The Owner Participant
Interest does not include and Seller is retaining the right to all Seller
Retained Rights (as such term is defined in the Assignment and Assumption
Agreement (as herein defined)).
The Owner Participant Interest does not include
and Seller is retaining the responsibility for the Seller Retained Obligations
(as defined in the Assignment and Assumption Agreement).
2.
PURCHASE PRICE.
The purchase price shall consist of the acquisition of the Owner Participant
Interest subject to the debt outstanding under the Notes on the Closing Date (as
such term is defined in the Assignment and Assumption Agreement) and a cash
payment (the "Cash Purchase Price") for the Owner Participant Interest of
Twenty-Nine Million Nine Hundred Sixty-One Thousand and No/100ths Dollars
($29,961,000.00), payable in immediately available funds at the closing of
purchase and sale hereunder (the "Closing).
3.
EARNEST MONEY.
WITHIN THREE (3) BUSINESS DAYS AFTER THE EFFECTIVE DATE, PURCHASER SHALL DELIVER
TO SELLER THE AMOUNT OF TWO HUNDRED FIFTY THOUSAND AND NO/100THS DOLLARS
($250,000.00) (TOGETHER WITH ALL INTEREST EARNED THEREON, THE "EARNEST MONEY").
SELLER SHALL HOLD THE EARNEST MONEY IN AN INTEREST-BEARING ACCOUNT AT AN FDIC
INSURED COMMERCIAL BANK AND SHALL DISBURSE THE EARNEST MONEY AS PROVIDED
HEREIN.
UPON THE TERMINATION OF THIS AGREEMENT FOR ANY REASON OTHER THAN
PURCHASER'S DEFAULT HEREUNDER, THE EARNEST MONEY, TOGETHER WITH ALL INTEREST
EARNED THEREON, SHALL BE RETURNED TO PURCHASER, AND NEITHER SELLER NOR PURCHASER
THEREAFTER SHALL HAVE ANY FURTHER RIGHT OR OBLIGATION UNDER THIS AGREEMENT
UNLESS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT.
2
4.
COVENANTS, REPRESENTATIONS AND WARRANTIES.
4.1
SELLER COVENANTS, REPRESENTS AND WARRANTS TO PURCHASER, BOTH AS OF
THE DATE HEREOF AND AS OF THE DATE OF CLOSING, AS FOLLOWS:
(A)
SELLER IS A VALIDLY EXISTING DELAWARE CORPORATION.
(B)
SELLER HAS DULY AUTHORIZED THE EXECUTION, DELIVERY AND PERFORMANCE
OF ITS OBLIGATIONS UNDER THIS AGREEMENT. SELLER HAS ALL NECESSARY POWER AND
AUTHORITY TO EXECUTE, DELIVER AND PERFORM THIS AGREEMENT AND TO COMPLETE THE
TRANSACTION PROVIDED FOR HEREIN. ANY REQUIRED CONSENTS FROM THIRD PARTIES TO
SELLER'S EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT (OTHER THAN THE
APPROVALS REQUIRED UNDER SECTION 8.01 OF THE PARTICIPATION AGREEMENT) HAVE BEEN
OBTAINED.
THIS AGREEMENT HAS BEEN DULY AND VALIDLY EXECUTED AND DELIVERED BY
SELLER AND IS THE LEGAL, VALID AND BINDING OBLIGATION OF SELLER, ENFORCEABLE
AGAINST SELLER IN ACCORDANCE WITH ITS TERMS.
(C)
EXCEPT FOR PURCHASER AND AS OTHERWISE PROVIDED IN THE TRANSACTION
DOCUMENTS, NO PERSON HAS ANY