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EXHIBIT 10.30
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of the __ day
of January, 1999, by and among XXXXXXX OUTDOOR ADVERTISING COMPANY, a Georgia
corporation ("Buyer"), XXXXXXX INNS, INC., a Georgia corporation and the sole
stockholder of Buyer ("Xxxxxxx"), and XXXXXXX HOSPITALITY, LLC, a Georgia
limited liability company ("Seller").
WITNESSETH:
WHEREAS, Seller is the owner of, among other things, certain outdoor
advertising assets in the form of billboards and other related assets as
described on Exhibit A hereto (the "Assets") which it desires to sell; and
WHEREAS, Buyer desires to acquire the Assets and to assume certain
related liabilities as described on Exhibit B hereto (the "Liabilities");
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, representations and warranties hereinafter set forth, the parties
agree as follows:
1. SALE AND PURCHASE OF ASSETS; ASSUMPTION OF LIABILITIES.
Subject to all of the terms and conditions of this Agreement, as of the closing
date set forth in Section 7 below(the "Closing Date"), Seller shall sell, assign
and transfer to Buyer the Assets and Buyer shall accept such sale, assignment
and transfer and shall assume the Liabilities.
2. PURCHASE PRICE. Subject to adjustment pursuant to Section 7.4
below, the Purchase Price for the Assets shall be as follows:
a. 72,727 newly issued shares of Xxxxxxx'x 9.25% Series A
Cumulative Preferred Stock, par value $1.00 per share (the "Shares");
and
b. Cash in the amount of Four Hundred Thousand Dollars ($400,000)
in immediately available funds; and
c. Assumption by Buyer of the Liabilities.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Buyer, which representations and warranties shall
survive the Closing (as defined in Section 7 below), as follows:
3.1 Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Georgia and has all authority as a limited liability company to own and
use its properties and to carry on its business as now being conducted.
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3.2 Seller owns each of the Assets free and clear of all
liabilities, obligations, liens, security interests and encumbrances
except as described on Exhibit B hereto.
3.3 Seller has the power and authority as a limited
liability company to enter into and perform this Agreement and has
taken all necessary actions to carry out the terms hereof and thereof.
3.4 This Agreement has been duly authorized, executed and
delivered by Seller and is a valid obligation of Seller, enforceable in
accordance with its respective terms. Neither the Articles of Formation
or Operating Agreement of Seller nor any other agreement or instrument
to which Seller is a party or by which it or any of the Assets is bound
prohibits, limits or otherwise affects the right, power or authority of
Seller to enter into and perform this Agreement or to consummate the
transactions contemplated herein.
3.5 Neither the execution and delivery of this Agreement
by Seller nor the consummation of the transactions contemplated
hereunder will result in the violation of any term or provision of or
constitute a breach or default under any indenture, mortgage, deed of
trust, license, permit, easement, right of way, lease or other
agreement or instrument to which Seller is a party or by which it or
any of the Assets is bound, including without limitation the ground
leases and other contracts and agreements which are included among the
Assets (the "Contractual Assets").
3.6 Seller is not subject to any order, judgment or
decree, or any other restriction of any kind or character, which would
prevent consummation of the transactions contemplated by this
Agreement.
3.7 Seller has all necessary governmental leases,
licenses, permits and other rights necessary to own and operate the
Assets and such leases, licenses, permits and rights are in full force
and effect. No violations exist or have been recorded in respect of any
governmental license, permit or other right and no proceeding is
pending or threatened with respect to the revocation or limitation of
any such governmental lease, license, permit or other right which would
have an adverse effect on the Assets, and there is no basis or grounds
for any such revocation or license.
3.8 None of the Assets is in violation of any applicable
law, code, rule, regulation, ordinance, license or permit, including
but not limited to those relating to building, zoning or environmental
matters. No notice from any governmental body or other person or entity
has been served upon Seller or upon any of the Assets claiming any
violation of any such law, code, rule, regulation, ordinance, license
or permit, or
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requiring or calling attention to the need for, any work, repair,
construction, alteration, removal or installation of, on or in
connection with the Assets which has not been fully complied with. No
authorization, approval or consent of any governmental department,
bureau or agency or other public board or authority is required for the
consummation by Seller of the transactions contemplated by this
Agreement.
3.9 There is, directly or indirectly, affecting the
Assets, (i) no suit, action or pending claim, (ii) no investigation or
inquiry or any administrative agency or governmental body and (iii) no
legal, administrative or arbitration proceeding pending or threatened
against Seller or the Assets which would have an adverse effect on the
Assets. There is no outstanding order, writ, injunction or decree of
any court, administrative agency or governmental body or arbitration
tribunal adversely affecting the Assets.
3.10 Each of the Contractual Assets is in full force and
effect and Seller has not received notice of and is not aware of any
default or other occurrence with respect to any Contractual Asset which
would give any party thereto the right, with or without the passage of
time, to terminate such Contractual Asset. No consent of any party
other than Seller is required for the sale and assignment thereof to
Buyer.
3.11 None of the Contractual Assets is the subject of any
breach or payment or other dispute by or among the parties thereto and,
to Seller's knowledge, no condition exists or event has occurred which
could give rise, with or without the passage of time, to such a breach
or dispute.
3.12 All of the representations made and financial and
other data provided by Seller and Seller's representatives to
Interstate/Xxxxxxx Xxxx Corporation ("IJLC") in connection with the
issuance of IJLC's letters to Xxxxxxx dated November 3, 1998, and to
Xxxxxxx and Buyer dated the date hereof relating to the fairness of the
consideration to be paid by Buyer for the Assets were at the date
provided to IJLC and shall be at the Closing Date true, correct and
complete.
3.13 All of the rental payments payable by Buyer to Seller
under the terms of the Contractual Assets consisting of ground leases
and billboard agreements will constitute "rents from real property" as
defined in section 856(d)(1)(A) of the Internal Revenue Code of 1986,
as amended.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants to Seller, which representations shall survive the
Closing, as follows:
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4.1 Buyer is a corporation duly organized validly
existing and in good standing under the laws of the State of Georgia
and has all corporate authority to enter into and perform this
Agreement. Buyer has taken all necessary actions to carry out the terms
hereof.
4.2 This Agreement has been duly authorized, executed and
delivered by Buyer and is a valid obligation of Buyer, enforceable in
accordance with its terms. Neither Buyer's Articles of Incorporation or
Bylaws nor any other agreement or instrument to which Buyer is a party
or by which it is bound prohibits, limits or otherwise affects the
right, power or authority of Buyer to enter into and consummate this
Agreement.
4.3 Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereunder will result in
the violation of any term or provision of, or constitute a default
under, any indenture, mortgage, deed of trust or other agreement or
instrument to which Buyer is a party or by which it is bound.
4.4 Buyer is not subject to any order, judgment or
decree, or any other restriction of any kind or character, which would
prevent consummation of the transactions contemplated by this
Agreement.
5. REPRESENTATIONS AND WARRANTIES OF XXXXXXX. Xxxxxxx hereby
represents and warrants to Seller, which representations shall survive the
Closing, as follows:
5.1 Xxxxxxx is a corporation duly organized validly
existing and in good standing under the laws of the State of Georgia
and has all corporate authority to enter into and perform this
Agreement and to issue the Shares. Xxxxxxx has taken all necessary
actions to issue the Shares as provided herein.
5.2 This Agreement has been duly authorized, executed and
delivered by Xxxxxxx and is a valid obligation of Xxxxxxx, enforceable
in accordance with its terms. Neither Xxxxxxx'x Amended and Restated
Articles of Incorporation, as amended, or Bylaws, as amended, nor any
other agreement or instrument to which Xxxxxxx is a party or by which
it is bound prohibits, limits or otherwise affects the right, power or
authority of Xxxxxxx to enter into and consummate this Agreement or to
issue the Shares.
5.3 Neither the execution of this Agreement nor issuance
of the Shares will result in the violation of any term or provision of,
or constitute a default under, any indenture, mortgage, deed of trust
or other agreement or instrument to which Xxxxxxx is a party or by
which it is bound.
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5.4 Xxxxxxx is not subject to any order, judgment or
decree, or any other restriction of any kind or character, which would
prevent consummation of the transactions contemplated by this Agreement
or issuance of the Shares.
5.5 When issued to Seller in accordance with this
Agreement, the Shares will be duly issued, validly outstanding and
nonassessable capital stock of Xxxxxxx subject to the restrictions set
forth in Section 5 below and to those contained in the Designation of
Rights, Preferences and Restrictions of Preferred Stock, Part II.A of
the Articles of Amendment filed by the Xxxxxxx on March 13, 1998, with
the Secretary of State of the State of Georgia (the "Designation").
6. INVESTMENT INTENT; RESTRICTIONS ON SHARES.
6.1 Seller represents that it is acquiring the Shares for
purposes of investment only and not with a view to resale or
distribution.
6.2 Seller acknowledges that:
a. The offer and sale of the Shares to Seller have not
been registered under the Securities Act of 1933, as amended
(the "Act"), or any state securities law;
b. The Shares cannot be sold, assigned or transferred by
Seller in any manner without registration under the Act and
applicable state securities laws or in compliance with
exemptions therefrom; and
c. No sale, assignment or transfer of the Shares by
Seller will be valid except pursuant to effective registration
statements under the Act and applicable state securities or an
opinion of counsel satisfactory to Xxxxxxx that such
registration is not required.
6.3 Seller further acknowledges that certificates
representing the Shares will bear legends evidencing the
above-described restrictions on the sale, assignment and transfer of
the Shares as well as certain restrictions on sale and ownership of the
Shares prescribed under the Designation.
7. THE CLOSING. The consummation of the transactions described
herein (the "Closing") shall occur at 10:00 a.m. on April 2, 1999, at the
offices of Seller or at such other time and place agreed to in writing by the
parties (the "Closing Date"). Title to and risk of loss, destruction, or damage
to the Assets shall pass to Buyer at the conclusion of the Closing. At the
Closing, the following shall occur:
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7.1 Buyer shall deliver to Seller:
a. Cash in the amount of $400,000 by check or
other means satisfactory to Seller;
b. A fully executed Assignment and Assumption
in the form of Exhibit C hereto; and
c. A certificate executed by an authorized
officer of Buyer stating that all of the representations and
warranties of Buyer set forth in this Agreement are true and
correct at the time of Closing.
7.2 Seller shall deliver to Buyer:
a. A fully executed Assignment and Assumption
in the form of Exhibit C hereto; and
b. A certificate executed by an authorized
officer of Seller stating that all of the representations and
warranties of Seller set forth in this Agreement are true and
correct at the time of Closing.
7.3 Xxxxxxx shall deliver to Seller:
a. Certificates representing the Shares in such
denominations as Seller may designate, such certificates to
bear the legends described in Section 6.3 above; and
b. A certificate executed by an authorized
officer of Seller stating that all of the representations and
warranties of Xxxxxxx set forth in this Agreement are true and
correct at the time of Closing.
7.4 The parties shall adjust, apportion, and prorate all
ad valorem taxes on personal property, all real estate taxes, general
and special assessments, municipal improvements liens, liens on
property purchased, and all prepaid expenses, utility charges, rents or
other like charges levied, assessed, or imposed upon any of the Assets
being sold hereunder. Should any such tax, assessment, or charge be
undetermined on the Closing Date, the last determined tax, assessment,
or charge shall be used for the
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purpose of adjustment. If not finalized at the Closing, all adjustments
shall take place as soon thereafter as is practicable.
8. UNDERSTANDING OF THE PARTIES REGARDING ASSIGNMENT OF RIGHTS
UNDER BILLBOARD AGREEMENTS. The Contractual Assets consist in part of certain
contractual rights of Seller held in its own name or as successor by merger to
certain other entities (Seller and each of such predecessor entities being
referred to as "Xxxxxxx"in the Billboard Agreements, as defined herein) under
certain agreements (styled therein and referred to hereinafter as the "Billboard
Agreements") between Seller and/or one of such predecessor entities and a party
denominated as "Advertiser" thereunder. Acknowledging the legal identity in
certain Billboard Agreements of the entity denominated therein as "Xxxxxxx" and
the entity denominated as "Advertiser," the parties agree that in the event the
assignment by Seller to Buyer pursuant to this Agreement of Seller's rights as
"Xxxxxxx" under the Billboard Agreements is ever challenged or declared void or
invalid as a result of such identity of the parties thereto, Buyer and Seller
shall, effective at the Closing Date, be deemed to have entered de novo into
legally binding agreements having terms and conditions identical to the terms
and conditions of the Billboard Agreements, Buyer having all of the rights,
duties and obligations of "Xxxxxxx" thereunder and Seller having all of the
rights, duties and obligations of the "Advertiser."
9. POST-CLOSING ASSISTANCE. After Closing, each of Buyer and
Seller at the request of the other and without further consideration agrees to
execute and deliver at its expense such other instruments of transfer or
assumption and take such other action as reasonably may be requested to
effectively carry out the provisions and intent of this Agreement and to put
Buyer in possession of the Assets.
10. INDEMNIFICATION.
10.1 Buyer shall indemnify, defend, and hold Seller
harmless from and against any and all claims or actions, liabilities,
losses, damages, costs, charges, including reasonable attorneys' fees,
and other expenses of any kind which Seller may incur with respect to
the Assets and which are predicated upon events or occurrences taking
place subsequent to the Closing or due to the breach by Buyer of this
Agreement or any representation or warranty of Buyer herein.
10.2 Seller shall indemnify, defend, and hold Buyer
harmless from and against any and all claims or actions, liabilities,
losses, damages, costs, charges, including reasonable attorneys' fees,
and other expenses of any kind which Buyer may incur with respect to
the Assets and which are predicated upon events or occurrences
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taking place subsequent to the Closing or due to the breach by Buyer of
this Agreement or any representation or warranty of Buyer herein.
10.2 Seller shall indemnify, defend, and hold Buyer
harmless from and against any and all claims or actions, liabilities,
losses, damages, costs, charges, including reasonable attorneys' fees,
and other expenses of any kind which Buyer may incur with respect to
the Assets and which are predicated upon events or occurrences taking
place prior to the Closing or due to the breach by Seller of this
Agreement or any representation or warranty of Seller herein.
10.3 Xxxxxxx shall indemnify, defend, and hold Seller
harmless from and against any and all claims or actions, liabilities,
losses, damages, costs, charges, including reasonable attorneys' fees,
and other expenses of any kind which Seller may incur due to the breach
by Xxxxxxx of this Agreement or any representation or warranty of
Xxxxxxx herein.
11. BULK SALES ACT. Seller hereby guarantees that the sale
contemplated by this Agreement shall conform to the Bulk Sales Provisions of the
Uniform Commercial Code or other laws or regulations having similar purpose and
therefore agrees to indemnify and hold Buyer harmless from any liability, loss,
damage, cost, charge, or expense of any kind as a result of Seller's breach of
this Section 11. Seller further agrees that the Purchase Price received at the
Closing shall be applied to the satisfaction of any indebtedness to creditors
which is identified in any list of creditors prepared and furnished to Buyer in
compliance with such Bulk Sales laws.
12. SALES TAXES. Any sales, use or transfer taxes which may be
payable in connection with the transfer of the Assets to the Buyer shall be
borne solely by Seller, which shall indemnify and hold Buyer harmless therefrom.
13. PRESERVATION OF ASSETS. Prior to the Closing, Seller shall
preserve the Assets in good condition and in so doing shall exercise its best
efforts to (i) continue Seller's use of the Assets only in the ordinary and
usual course in accordance with its past practice, (ii) maintain and keep in
good repair all of the Assets, (iii) comply with all applicable laws, rules, and
regulations of each federal, state and municipal authority having jurisdiction
over Seller with respect to the Assets, and (iv) maintain Seller's insurance
coverage of the Assets in conformity with past practice.
14. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The obligation
of Buyer to purchase the Assets and assume the Liabilities pursuant to this
Agreement shall be subject, at Buyer's option, to the following conditions:
14.1 NO MATERIAL ADVERSE CHANGE. There shall not have
occurred any material adverse change in the condition of the Assets
from the date of this Agreement until the conclusion of the Closing.
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14.2 REPRESENTATIONS AND WARRANTIES OF SELLER TRUE. All
representations, warranties and other statements of Seller contained
herein were true and correct when made and at and as of the Closing
Date shall be true and correct as if made at the time of the Closing.
14.3 CONSENTS AND AMENDMENTS. Seller shall have obtained
all necessary written consents to the transactions contemplated by this
Agreement and any amendments which may be required to any of the
Contractual Assets.
14.4 LITIGATION. On the Closing Date, there shall not be
any pending litigation in any court or any proceedings by or before any
judicial, administrative or governmental commission, board, agency or
other instrumentality adversely affecting the Assets or the
consummation of the transactions contemplated by this Agreement.
14.5 FAIRNESS OPINION. Buyer and Xxxxxxx shall have
obtained an opinion of Interstate/Xxxxxxx Lane Corporation dated the
Closing Date stating that the consideration payable to Seller in
connection with the transactions contemplated herein is fair, from a
financial point of view, to shareholders of Xxxxxxx.
14.6 PERFORMANCE. Seller shall have performed and complied
with all agreements and conditions required by this Agreement to be
performed or complied with by Seller prior to or at the Closing.
15. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The
obligation of Seller to sell the Assets to Buyer pursuant to this Agreement
shall be subject, at Seller's option, to the following conditions:
15.1 NO MATERIAL ADVERSE CHANGE. There shall not have
occurred any material adverse change in the financial condition or
operations of Buyer or Xxxxxxx from the date of this Agreement until
the conclusion of the Closing.
15.2 REPRESENTATIONS AND WARRANTIES OF BUYER AND XXXXXXX
TRUE. All representations, warranties, and other statements of Buyer
and Xxxxxxx contained herein were true and correct when made and at and
as of the Closing Date shall be true and correct as if made at and as
of the Closing Date.
15.3 AMENDMENT TO XXXXXXX'X AMENDED AND RESTATED ARTICLES
OF INCORPORATION. Xxxxxxx shall have filed with the Secretary of State
of the State of Georgia an amendment to Xxxxxxx'x Amended and Restated
Articles of Incorporation increasing to an aggregate of one million two
hundred seventy-two thousand seven
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hundred twenty-seven (1,272,727) the number of authorized shares of
Xxxxxxx'x 9.25% Series A Cumulative Preferred Stock, par value $1.00
per share.
15.4 LITIGATION. On the Closing Date, there shall not be
any pending litigation in any court or any proceedings by or before any
judicial, administrative or governmental commission, board, agency or
other instrumentality materially adversely affecting Buyer's or
Xxxxxxx'x financial condition or operations or the consummation of the
transactions contemplated by this Agreement.
15.5 PERFORMANCE. Buyer and Xxxxxxx shall have performed
and complied with all agreements and conditions required by this
Agreement to be performed or complied with by Buyer and Xxxxxxx,
respectively, prior to or at the Closing.
16. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed sufficiently given
if delivered personally or sent by certified mail, return receipt requested,
postage prepaid, addressed as listed below or to such other address as the party
concerned may substitute by notice to the other in accordance with the
provisions of this paragraph.
If to Buyer:
Xxxxxxx Outdoor Advertising Company
0 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
If to Seller:
Xxxxxxx Hospitality, LLC.
0 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
If to Xxxxxxx:
Xxxxxxx Inns, Inc.
0 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
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17. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties with respect to the transactions
contemplated hereby. No representation, promise, inducement, or statement of
intention has been made by Buyer, Seller or Xxxxxxx which is not embodied in
this Agreement. None of Buyer, Seller or Xxxxxxx shall be bound by or liable for
any alleged misrepresentation, promise, inducement or statement of intention not
so set forth.
18. ASSIGNMENTS. Neither this Agreement nor any of the rights or
duties of the parties hereto may be assigned by any party without the consent of
the other parties.
19. AMENDMENT. This Agreement may be changed, modified or amended
only by an instrument in writing duly executed by the parties.
20. WAIVER. No consent or waiver, express or implied, by a party
to or of any breach by another in the performance by such other of its
obligations hereunder shall be deemed or construed to be a consent or waiver to
or of any other breach in the performance by such other party of the same or any
other obligations of such party hereunder. Failure on the part of a party to
complain of any act or failure to act of another, irrespective of how long such
failure continues, shall not constitute a waiver by such party of its rights
hereunder.
21. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of Georgia without regard to the
conflict of laws provisions thereof.
22. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
constitute but one and the same instrument.
23. SEVERABILITY. If any term or provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the balance of this Agreement shall remain in full force and effect and shall
not be affected, impaired or invalidated thereby.
24. LITIGATION COSTS. If a party commences litigation to enforce
any of the provisions of this Agreement, the nonprevailing party in such
litigation shall reimburse the prevailing party for all reasonable costs and
expenses incurred in the pursuit of such litigation, including reasonable
attorneys' fees.
25. EXPENSES. The parties shall each be responsible for their own
respective costs, expenses and fees (including without limitation attorneys'
fees) incurred in connection with this Agreement and the transactions
contemplated hereby, and agree to indemnify and hold each other harmless from
and against any and all liabilities or claims with respect to such expenses,
costs, or fees.
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26. NO THIRD-PARTY BENEFICIARIES. Except for proper heirs, successors
and permitted assigns, the parties intend that no third party shall have any
rights or claims by reason of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives, thereunto duly authorized, as of
the day and year first above written.
SELLER:
ATTEST: XXXXXXX HOSPITALITY, LLC
By:
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Secretary Xxxxxx X. Xxxxxxx, President
BUYER:
ATTEST: XXXXXXX OUTDOOR ADVERTISING COMPANY
By:
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Secretary Xxxxx X. Xxxxxxx, President
XXXXXXX:
ATTEST: XXXXXXX INNS, INC.
By:
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Secretary Xxxxx X. Xxxxxxx, President
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EXHIBIT A
TO
ASSET PURCHASE AGREEMENT
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EXHIBIT B
TO
ASSET PURCHASE AGREEMENT
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EXHIBIT C
TO
ASSET PURCHASE AGREEMENT
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