ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into as of this
February 27, 1998 by and among XXXXXX OUTDOOR ADVERTISING & TRAVEL CENTERS INC.,
a Nevada corporation (the "Purchaser") and XXXXXXX OUTDOOR, INC., a Texas
corporation (the "Company").
Purchaser desires to purchase from the Company, and the Company desires to
sell to the Purchaser, those certain assets of the Company hereinafter described
upon the terms and conditions set forth herein. In consideration of the
respective agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
TRANSFER OF ASSETS AND ASSUMPTION OF OBLIGATIONS
1.1 Transfer of Assets; Assumption of Obligations
A. Transfer of Assets. For purposes of this Agreement, the term "Business"
shall be defined to mean the Company's current business of providing and
marketing outdoor display advertising on signs and billboards that are located
within Texas counties more fully described on Exhibit C (the "Territory").
Subject to the terms and conditions set forth in this Agreement, the Company
agrees to sell, convey, transfer, assign and deliver to the Purchaser, and the
Purchaser agrees to purchase from the Company on the Closing Date, the following
(such assets to be referred to herein as the "Assets"):
1. The outdoor advertising display structures and faces (together with
all ladders, walks, trim, lighting equipment and other installed
accessories) owned or leased by the Company (the "Sign Structures") erected
on land within the Territory and all other tangible personal property and
assets more fully described on Exhibit A (collectively, the Sign Structures
and such other tangible property and assets are herein referred to as the
"Tangible Property");
2. Subject to Section 1.1B herein, all of Company's right, title and
interest in and to contracts for outdoor display advertising, to the extent
performable on the Closing Date by posting or other display on Sign
Structures erected on locations within the Territory (collectively, the
"Advertising Contracts"); and
3. Subject to Section 1.1B herein, all of the Company's right, title
and interest and to all agreements for the erection and/or placement of
Sign Structures at locations within the Territory (the "Site Agreements"),
such locations being those listed on Exhibit A1 ("the Locations");
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4. Subject to Section 1.1B herein, the leases, subleases, contracts,
contract rights and agreements (other than Advertising Contracts and Site
Agreements) more fully described on Exhibit A2 (the "Other Contracts"); and
5. All franchises, approvals, permits, licenses, orders,
registrations, certificates, variances, and similar rights obtained from
governments and governmental agencies required or necessary for the conduct
of the Business in the Territory, to the extent they relate to the
operation of the Business within the Territory and are assignable or
transferrable by the Company to Purchaser (the "Licenses"). Attached hereto
as Exhibit A3 is a list of all Licenses and other franchises, approvals,
permits, etc. obtained from governments and governmental agencies that are
required or necessary to the operation of the Business in the Territory.
As used in this Agreement, the term "Contracts" shall mean and include,
collectively, the Advertising Contracts, the Site Agreements, and the Other
Contracts. Notwithstanding anything to the contrary contained herein, the Assets
do not include any of the following: (i) all liabilities, obligations, payables
or debts of any nature whatsoever of the Company not specifically included in
the definition of the Assumed Liabilities pursuant to Section 1.1B hereof; (ii)
any right or interest in any Plan as defined in Section 2.15, including any
trust created thereunder; (iii) any cash, cash equivalents, marketable
securities or investment securities owned by the Company; (iv) any receivables
(except prepaids), accounts, accounts receivable, notes, notes receivable or
other evidence of indebtness or obligation for the payment of money to or in
favor of the Company existing on the Closing Date; (v) the Company's name, any
assumed name, or any logo xxxx, slogan, or other identifying feature (except
Purchaser will be allowed 6 months from the Closing Date to replace imprints on
Sign Structures bearing the Company's name with imprints containing Purchaser's
name; and (vi) any of the tangible personal or other property and assets listed
on Exhibit A4 hereto (the "Excluded Assets").
B. Assumption of Obligations. Subject to the exceptions an exclusions of
this Section 1.1B, the Purchaser agrees that on the Closing Date, the Purchaser
will assume and agree to perform and pay when due:
1. All unperformed and unfulfilled obligations of the Company under
the Advertising Contracts for which the Company is not in default on the
Closing Date;
2. All obligations of the Company under the Site Agreements to the
extent performance thereof is not warranted by the Company hereunder and
all liabilities arising out of or resulting from any Location Claim (as
defined in Section 2.3 hereof);
3. All unperformed and unfulfilled obligations of the Company under
the Other Contracts for which the Company is not in default on the Closing
Date; and
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4. The obligations imposed upon holders of the Licenses for which the
Company is not in default on the Closing Date; and
5. The obligations and liabilities of the Company described and
referred to on Exhibit B attached hereto for which the Company is not in
default on the Closing Date
(collectively, the "Assumed Obligations"). The Assumed Obligations shall not
include any other debts, liabilities or obligations, whether accrued, absolute,
contingent or otherwise, in contract or in tort, including but not limited to
(i) accrued income taxes, (ii) deferred income taxes, (iii) accrued franchise
taxes, (iv) any tax imposed on the Company because of the operations of any its
respective business on or prior to the Closing Date, (v) any of the liabilities
or expenses of the Company incurred in negotiating and carrying out its
obligations under this Agreement; (vi) any obligations of the Company under
employee benefit agreements; (vii) any liabilities or obligations incurred by
the Company in violation of, or as a result of the Company's violation of, this
Agreement, and (vii) liabilities, costs, and expenses associated with the
litigation described in Schedule 2.4 hereto.
1.2 Consideration for Assets and Non-Compete will be as follows: (i)
$900,000 payable in cash at closing, as the purchase price for the Assets and
(ii) the non-compete consideration will be payable in ten annual installments of
$10,000 each, commencing on the first anniversary date of the closing and each
year thereafter on that date until paid.
1.3 Determination Period.
A. For and in consideration of the sum of $2,500,00 (which amount is
paid by Purchaser to company of even date herewith as consideration for the
rights described in this Section 1.3 and not a deposit), the Company grants
Purchaser the right to inspect, review, audit, analyze, enumerate, verify,
evaluate and/or inventory the Assets, Assumed Obligations, financial and
other records of or pertaining to the Business, and to otherwise conduct
due diligence regarding its decision to purchase the Assets (the
"Purchaser's Review") during the period commencing on the date hereof and
expiring on February 28, 1998 (the "Determination Period"). In exchange for
the consideration above recited and paid, Purchaser may, at any time prior
to the expiration of the Determination Period, for any reason or no reason,
terminate this Agreement by the delivery to the Company of written notice
to that effect meeting the requirements of Section 9.3. At Closing,
Purchaser shall be entitled to a credit against the cash portion of the
purchase price then payable an amount equal to the consideration previously
paid to the Company pursuant to this Section 1.3.
B. Purchaser acknowledges and agrees that is is an experienced
participant in the outdoor advertising industry, and that is possesses
adequate specialized knowledge concerning that industry and concerning
assets of the type as are comprised by the Assets to carry out the
Purchaser's Review and otherwise make an informed decision based thereon
(and on those representations, warranties and covenants of the Company
expressly made herein) as to whether or not to purchase the same. Purchaser
agrees and acknowledges that it is relying and will rely on the Purchaser's
Review in making its decision to consummate the transactions contemplated
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hereby, provided that undertaking the Purchaser's review will n ot impair
or limit any warranty, representation or covenant of the Company expressly
made or given in the Agreement. As to any matter not specifically addressed
by an express representation, warranty or covenant of the Company contained
herein, Purchaser shall rely (and shall be deemed to have relied) solely on
the purchaser's Review in making any determination concerning that matter.
Without limitation of the foregoing (and notwithstanding anything to the
contrary in this Agreement), Purchaser shall rely exclusively on the
results of the Purchaser's Review in determining (i) the existence,
magnitude, risk, and nature of nay Location Claims; and (ii) the need for
consent to the assignment of any Contract of License by any party thereto
or any third party.
C. All documents and information may be made available in the course
of the Purchaser's Review to Purchaser, its stockholders, agents and/or
employees are hereby acknowledged to be and remain subject to the terms and
provisions of that certain terms sheet and letter agreement dated February
11, 1998, between the company and Purchaser regarding confidentiality and
non-disclosure. Such agreement shall survive Closing and/or any expiration
or termination of this Agreement, except that following Closing,
Purchaser's obligation of confidentiality and non-use thereunder shall
terminate as to such documents and information to the extent the same
pertain to the Contracts, other Assets or the Business.
1.4 Instruments of Transfer. The Company will deliver to the Purchaser at
Closing such bills of sale, endorsements, assignments and other good and
sufficient instruments of conveyance, transfer and assignment as shall be
effective to vest in the Purchaser good title to the Assets as warranted herein.
The Purchaser will deliver to the Company at Closing such instruments of
assumption as shall be effective to obligate Purchaser to the payment and/or
other performance of the Assumed Liabilities. SAVE AND EXCEPT FOR THOSE
WARRANTIES EXPRESSLY HEREIN MADE BY COMPANY, NEITHER THE COMPANY NOR ANY OF ITS
EMPLOYEES, SHAREHOLDERS, OFFICERS, DIRECTORS, REPRESENTATIVES OR AGENTS MAKES
ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR OR
GENERAL PURPOSE OR USE, SUITABILITY, QUALITY, QUANTITY, MAGNITUDE, RISK,
CONDITION, OR OTHER CHARACTERISTIC WHATSOEVER OF OR WITH RESPECT TO ANY OF THE
ASSETS OR ASSUMED LIABILITIES. SAID INSTRUMENTS SHALL CONVEY, TRANSFER AND
ASSIGN THE ASSETS AND GIVE EFFECT TO PURCHASER'S ASSUMPTION OF THE ASSUMED
LIABILITIES, IN THEIR AS-IS CONDITION AND/OR EXISTING STATE, WITHOUT ANY
REPRESENTATION OF WARRANTY, EXPRESSED OR IMPLIED, EXCEPT AS SPECIFICALLY STATED
IN THIS AGREEMENT. THE COMPANY DISCLAIMS, AND THE PURCHASER HEREBY ACKNOWLEDGES
THE DISCLAIMER OF, ANY AND ALL SUCH REPRESENTATIONS OR WARRANTIES, EXCEPT AS
STATED IN THIS AGREEMENT. The disclaimer given by Purchaser shall survive the
Closing and the conveyance of the Assets or any expiration or termination of
this Agreement.
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1.5 Closing. Payment of the Purchase Price and delivery of documents and
instruments evidencing the assumption of the Assumed Liabilities required to be
made by the Purchaser to the Company, the transfer of the Assets by the Company
and the other transactions contemplated hereby (the "Closing") shall take place
in the offices of the Company in Xxxxx, Texas on March 2, 1998, the transaction
contemplated hereby to have effect, however, as of 12:01 a.m. on March 1, 1998.
The date of the Closing is referred to in the Agreement as the "Closing Date".
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The representations and warranties of the Company are made and given as of
the date of 0execution of this Agreement, and shall be deemed to have been again
made and given as of the Closing. The Company represents and warrants to the
Purchaser as follows:
2.1 Organization, Existence and Good Standing. The Company is a corporation
duly organized, validly existing in good standing under the laws of the State of
Texas and has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now being conducted.
2.2 Authority. The Company has full corporate power, authority and legal
capacity to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized and approved by the Company's board of directors and its
shareholders, and no corporate proceedings on the part of the Company or its
shareholders are necessary to authorize the execution and delivery of this
Agreement by the Company and the consummation of the transaction contemplated
hereby. Xxxxx X. Xxxxxxx Xx. and wife, Xxxx Xxxxxxx are the only persons having
and interest in the outstanding capital stock of the Company.
2.3 Title to Assets. Except as otherwise provided herein, the Company has
good and marketable title to the Assets and, except as noted on Exhibits A, A1,
A2 and A3, and except for statutory liens for taxes, assessments or governmental
charges or levies which are not delinquent, none of the Assets are subject to
any lien, mortgage, pledge, security interest, lease, option, claim,
restriction, condition, transfer, assignment or other encumbrance, of any nature
whatsoever. Notwithstanding the foregoing or anything to the contrary in this
Agreement, however, Purchases expressly acknowledges and agrees that, with
respect to the Site Agreements, Company warrants and represents only that:
A. It is in possession of such agreements, and has not sold
assigned, transferred, or pledged them or any of its interest in
them;
B. The Company has paid, and as of the Closing Date will have paid,
all amounts due under the Site Agreements to those persons or
entities that, to the best of the Company's knowledge, are
entitled to such payment; and
C. Except as disclosed to the Purchaser in Schedule 2.3 (with
respect to Location Claims first asserted prior to the date
hereof) or otherwise disclosed to Purchaser in writing prior to
the Closing Date (with respect to Location Claims first asserted
between date hereof and Closing), it has not received notice of
nor, to the best of Company's knowledge, it is otherwise actually
aware of any Location Claim concerning any of the Site
Agreements.
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The Purchaser shall, as part of the Purchaser's Review, determine which, if any,
of the Site Agreements by their terms require, in order to make valid the
assignment thereof by Company to Purchaser pursuant to this Agreement, the
consent of any party thereto or third party, and shall secure such consent.
Company expressly does not warrant, nor make any representation concerning, the
validity or enforceability of any of the Site Agreements, nor concerning
Company's right, title or interest in or to any land covered by any of the Site
Agreements, and Purchases acknowledges that it shall rely exclusively on the
Purchaser's Review in ascertaining those matters. Purchaser acknowledges that
Site Agreements may be subject to Location Claims, liability for which (if any)
will, at Closing, be expressly assumed by Purchaser. As used in this Agreement,
the term "Location Claims" means any alleged or actual defect in or any claim
adverse to a Site Agreement or a location covered thereby concerning or relating
to title, boundary, access, limitations, description of land, parties,
signatures, forgeries, imposters, authority, capacity, improper identification,
location of improvements, encroachments, trespass, failure to properly direct
payments due, conveyance or assignment of any rights in land or under any Site
Agreement or other defect in or adverse claim to or affecting title, possession
or right to use or occupy property, asserted by any person or entity (other than
Company), and without regard to when any events or circumstances giving rise to
any such claim occurred or took place or when any such claim is asserted.
Location Claims expressly include, without limitation, any claim (i) that a Sign
Structure is a fixture and is realty (it is Company's position that Sign
Structures are personalty and not fixtures or improvements to realty) and (ii)
of failure to have any person or entity join in the execution of a Site
Agreement, to place of record any Site Agreement, to secure any renewal or
extension of any Site Agreement, or to secure the approval to the transfer of
any Site Agreement from any third party. Purchaser further acknowledges that, as
a result of Locations Claims, Purchaser right to possession of or access to Sign
Structures located pursuant to a particular Site Agreement may be impaired or
otherwise adversely affected. Purchaser acknowledges that Company's warranty of
any representations concerning title shall, with regard to Sign Structures, be
subject to the effect thereon of any Location Claim. Purchaser agrees that it
will exclusively on the Purchaser's Review for any assurance against any
impairment of its rights of possession of or access to Sign Structures due to
any Location Claims.
The definition of "Locations Claims" set forth above shall not be read as
encompassing claims of third parties for damages arising from acts or omissions
of the Company or its employees, contractors or agents upon property that is the
subject of a Site Agreement to the extent such claims are for (i) the death of
or bodily injury to one or more persons: (ii) the loss of, or damage or
destruction to personal property of one or more persons: or (iii) contamination,
pollution or disposal upon any real or personal property of one or more third
persons of hazardous or toxic materials.
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2.4 Litigation. Except as stated on Schedule 2.4 attached hereto, there are
no legal, administrative, arbitration, investigatory or other proceedings
pending or, to the best of Company's knowledge, threatened against of affecting
the Company or the Assets or as to which the Company has received notice that it
is or might become a party, or challenging the validity or propriety of the
transactions contemplated by this Agreement.
2.5 No Broker's or Finder's Fee. No agent, broker, investment banker,
person or firm has acted directly or indirectly on behalf of the Company in
connection with this Agreement or the transaction contemplated herein.
2.6 Tax Returns. Within the times and in the manner prescribed by law,
including extensions permitted thereunder, the Company has filed and will file
all federal, state and local tax returns required by law and has paid and will
pay all taxes, assessments and penalties due and payable in connection with the
Business through and including the Closing Date. Nothing herein shall impair or
limit Company's right to, in good faith, contest any charge or assessment of any
such taxes, assessments, and penalties in accordance with applicable law. To the
Company's knowledge, there are no present disputes as to taxes of any nature
payable by the Company.
2.7 Tangible Property. The Tangible Property includes all Sign Structures
owned by, leased by, in the lawful possession of, or used by the Company within
the geographic boundaries of the Territory. Except as disclosed on Exhibit A or
A1, none of the Tangible Property is held under any lease, security agreement,
conditional sales contract, or other title retention or security arrangement.
The Company is in possession of all the Tangible Property, subject only to
Location Claims.
2.8 Advertising and Other Contracts. There has not been any default by the
Company under any of the Advertising Contracts or Other Contracts, nor has there
occurred any event which would, with the passing of time or the giving of
notice, constitute default by the Company under any of the Advertising and Other
Contracts. To the best of Company's knowledge, each of the Contracts is valid
and in full force and effect, and, except as noted on Schedule 2.8, no other
party thereto is in default thereunder, nor has there occurred any event that
with notice or lapse of time or both, would constitute a default by any other
party to any of the Advertising Contracts or Other Contracts. The Purchases
shall, as a part of the Purchaser's Review, determine which, if any, of the
Advertising and/or Other contracts by their terms require, in order to make
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valid the assignment thereof by Company to Purchaser pursuant to this Agreement,
the consent of any party thereto or third party, and shall advise Company
thereof. Company shall, with Purchaser's reasonable cooperation, use
commercially reasonable efforts to procure such consent. Prior to the successful
procurement of any such consent or approval, Company agrees that it shall
perform all acts and execute any and all documents as may be reasonably
requested by Purchaser so that Purchaser may realize the benefits of such
Advertising and/or Other Contracts as Purchaser deems necessary or desirable,
until such time as such consent is obtained. In the event any of the Advertising
Contracts and/or Other Contracts is later determined to be non-assignable, then
Company (to the extent permitted under the terms of such contracts or
applicable), shall subcontract to the Purchaser the remaining work on such
contract, and the Company shall forward to the Purchaser all proceeds of such
contract received by the Company; provided, however, that Company shall be
reimbursed for any reasonable out-of-pocket expenses incurred by it. To the
extend any such contract cannot be subcontracted, Purchaser agrees to cooperate
with Company and enter into such other commercially reasonable arrangements as
will enable Company to fulfill its remaining obligations under said contracts.
Purchaser will pay any fees and otherwise at its cost and expense fulfill any
conditions to consent to the assignment to or assumption by Purchaser of any
Advertising and/or Other Contract that may be charged or imposed by a party to
such contract other than the Company or an affiliate or shareholder of the
Company. Notwithstanding the foregoing, Purchaser shall not be obligated
hereunder to pay any past due amount or otherwise cure any breach or default by
the Company that may exist under any such contract. The Company has not received
notice, nor, to the best of Company's knowledge, is it otherwise aware that any
party to any of the Advertising Contracts or Other Contracts intends to cancel
or terminate any of them or exercise or not exercise any options that they might
have thereunder.
2.9 Licenses. The Company, in the conduct of the Business, has not
infringed, and is not now infringing, on any license belonging to any other
person, firm, or corporation. The Company lawfully owns or hold adequate
licenses or other rights to use all Licenses necessary for the Business as now
conducted by the Company. The Purchaser shall, as a part of the Purchaser's
Review, determine which of the Licenses require, in order to make valid the
assignment or transfer thereof by Company to Purchaser pursuant to this
Agreement, consent or approval of any body issuing the same, and shall, at its
cost and expense prepare all necessary applications and pay all required fees.
Company will join in, provide all available information and render all
reasonable assistance to Purchaser with regard to any such applications.
2.10 Employment Contracts. Company has no employment contracts, collective
bargaining agreements, pension, bonus, or profit sharing plans providing for
employee remuneration or benefits with respect to employees of the Company
(whether working in the Business or not) that by their terms or by law will
become binding upon or the obligations of Purchaser. Company is in compliance
with, and upon the Closing will remain in compliance with all of its obligations
under such agreements or other arrangements.
2.11 Compliance with Laws. To the best of Company's knowledge, Company has
complied with, and is not in violation of, applicable federal, state or local
statutes, laws, and regulations (including, without limitation, any applicable
building code or other law, ordinance or regulation) that affects, directly or
indirectly, any of the Assets or the Business. There are not any uncured
violations of federal, state or municipal laws, ordinances, orders, regulations
or requirements affecting any portion of the Business of which Company has
received notice or of which it is aware.
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2.12 No Breach or Violation. The consummation of the transactions
contemplated by this Agreement will not result in or constitute any of the
following: (i) a default or any event that, with notice or lapse of time or
both, would be a default, breach or violation of, or that would permit any party
to terminate, any lease, license, promissory note, conditional sales contract,
commitment, indenture, mortgage, deed of trust, security agreement or other
agreement, instrument or arrangement by which the Assets or the Business may be
materially affected, or to which the Assets or the Company may be bound (other
than a failure to obtain any consent or approval to assignment of any Contract
or License0, (ii) the creation or imposition of any lien, charge, or encumbrance
on any of the Assets, or (iii) a breach of any term or provision of this
Agreement.
2.13 Valid and Binding Obligations. Upon execution and delivery, this
Agreement, and each document, instrument and agreement to be executed by the
Company in connection herewith, will constitute the legal, valid, and binding
obligations of the Company, enforceable in accordance with each such
agreement's, document's, or instrument's respective terms, except as may be
limited by applicable bankruptcy laws, insolvency laws, and other similar laws
affecting the rights of creditors generally.
2.14 Financial Statements. The term "Financial Statements" shall mean the
unaudited balance sheet and income statements of the Company as of December 31,
1997, which are true and correct in all respects, and have been prepared in
accordance with accounting principles consistently applied by Company in its
conduct of the Business.
2.15 Absence of Certain Changes or Events. Except as disclosed in Schedule
2.16, since December 31, 1997, with respect to the Business there has been no:
(i) Material adverse change in the condition, financial or otherwise,
of the Assets or the Business;
(ii) Material loss, destruction or damage to any Assets that has not
been or will not be repaired as of the Closing Date (subject to limitations
contained in any License);
(iii) Change in accounting methods or practices (including, without
limitation, any change in depreciation or amortization policies or rates)
by the Company and applicable to the Business or the Assets;
(iv) Re-evaluation by the Company of any of the Assets;
(v) Lien, mortgage, pledge or other encumbrance of any Asset;
(vi) Any known waiver of a right or claim held by the Company that was
material to the Business;
(vii) Any material change in the personnel of the Company involved in
the Business, or the terms or conditions of their employment;
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(viii) Any transaction by the Company outside of the normal course of
business having a material effect on the Business or the Assets;
(ix) Any capital expenditure by the Company relating to the Assets or
Business in excess of $10,000;
(x) Agreement by the Company to do any of the things described in the
preceding clauses (i) through (ix).
2.17 Disclosure. This Agreement, the Schedules and Exhibits hereto, and all
other documents and written information furnished by the Company to the
Purchaser pursuant hereto or in connection herewith, are true, complete and
correct in all material respects, and do not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements made herein and therein not misleading.
2.18 Sale of Assets. For purposes of determining whether a sale and a use
tax charge is applicable, the sale of the Assets constitutes an "occasional
sale" under applicable state law.
2.19 Insurance Polities. Schedule 2.19 to this Agreement is a list of all
insurance policies held by the Company concerning the Business or the Assets.
Wherever in this Agreement the term "to the best of Company's knowledge" is used
with respect to a party's ascertainment of any status, condition,
characteristic, existence, non-existence, or other matter, it is acknowledged
and agreed that such term is descriptive of that party's knowledge without its
having conducted any particular inquiry, investigation, audit or inspection
directed at such ascertainment, and that it is neither actually aware nor has it
received notice that its ascertainment is contrary to the statement made.
Notwithstanding anything to the contrary in this Agreement, the Company neither
makes nor attempts to make any disclosures, or gives any representation,
warranty, or other assurance whatsoever (and Company hereby DISCLAIMS any such
representation, warranty, or other assurance) (i) that Purchaser shall obtain
hereunder any right, privilege or power with respect to any Sign Structure or
Site Location in excess of limitations imposed thereon by any License; and (ii)
concerning any effect on the value, prospects, utility, or other characteristic
of any of the Assets or the Business of (a) any past, present, pending or
contemplated act or activity of any city, county, state, or federal legislative,
rule making, or governing body, or (b) general or specific economic or business
conditions affecting any particular locality, market, or industry.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The representations and warranties of the Purchaser contained in this
(Article III) are made and given as of the date of execution of this Agreement,
and shall be deemed to have been again made and given as of the Closing. The
Purchaser represents and warrants to the Company as follows:
3.1 Organization, Existence and Good Standing. The Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation or organization, and has duly qualified and is
fully authorized to conduct business under the laws of the State of Texas.
Purchaser has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now being conducted and
as will be conducted following the consummation of the sale contemplated hereby.
3.2 Authority. The Purchaser has full corporate power, authority and legal
capacity to execute and deliver this Agreement and to consummate the transaction
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have been duly and validly
authorized and approved by the Purchaser's board of directors and its
shareholders, and no corporate proceedings on the part of the Purchaser or any
of its shareholders are necessary to authorize the execution and delivery of
this Agreement by the Purchaser and the consummation of the transaction
contemplated hereby.
3.3 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement, the consummation of the transaction contemplated
hereby, nor the compliance by the Purchaser with any of the provisions hereof
will, as of the Closing Date, (i) conflict with or result in any breach of any
provision of the Articles of Incorporation or Bylaws (or any other
organizational document) of the Purchaser, (ii) result in a violation or breach
of, or constitute (with or without due notice or lapse of time or both) a
default under, any of the terms, conditions or provisions of any agreement or
obligation to which the Purchaser is a party or by which the Purchaser or any of
its properties or assets may be bound, (iii) violate any law, regulation,
judgment, order, writ, injunction or decree applicable to the Purchaser or any
of the Assets.
3.4 Broker's or Finder's Fees. Purchaser has used the services of Xxx X.
Xxxxxxx, CPA acting as Purchasers agent in this matter and will be solely
responsible for any payments due as a result, no other agent, broker, investment
banker, person or firm has acted directly or indirectly on behalf of the
Purchaser in connection with this Agreement or the transaction contemplated
herein.
3.5 Tax Returns. Within the times and in the manner prescribed by law,
including extensions permitted thereunder, the Purchaser has filed and will file
all federal, state and local tax returns required by law and has paid and will
pay all taxes, assessments and penalties due and payable in connection with the
operation of its business through and including the Closing Date and in
connection with its operation of the Business after the Closing Date. Nothing
herein shall impair or limit Purchaser's right to, in good faith, contest any
charge or assessment of any such taxes, assessments, and penalties in accordance
with applicable law. There are no present disputes as to taxes of any nature
payable by the Purchaser.
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3.6 Compliance with Laws. To the best of Purchaser's knowledge, Purchaser
has complied with, and is not in violation of, applicable federal, state or
local statutes, laws, and regulations (including, without limitation, any
applicable building code or other law, ordinance or regulation) that affects,
directly or indirectly, any business or activities of the Purchaser.
3.7 Valid and Binding Obligations. Upon execution and delivery, this
Agreement, and each document, instrument and agreement to be executed by the
Purchaser in connection herewith, will constitute the legal, valid, and binding
obligations of the Purchaser, enforceable in accordance with each such
agreement's, document's, or instrument's respective terms, except as may be
limited by applicable bankruptcy laws, insolvency laws, and other similar laws
affecting the rights of creditors generally.
ARTICLE IV
OBLIGATIONS OF THE PARTIES PENDING CLOSING
During the period commencing on the date of this Agreement through the
Closing Date, the parties covenant and agree as follows:
4.1 Conduct of Business. The Company shall conduct the operations of the
Business in the usual and ordinary course of business and shall (without making
any commitment on behalf of, or which would be binding on, the Purchaser other
than entering into Advertising Contracts and/or Site Agreements with third
parties or securing permits and/or approvals in the ordinary course of business)
use its normal and customary efforts to preserve its good relationships with its
employees, customers, and suppliers and others having business relationships
with it.
4.2 Condition of Assets. The Company will maintain and keep the Assets in
substantially the condition in which they exist as of the date of this
Agreement, subject to ordinary wear and tear (and in the case of the Contracts,
subject to termination or expiration in accordance with the terms thereof in the
ordinary course of business), and will notify Purchaser of any material damage
or destruction of any of the Assets caused by casualty or other reason.
Purchaser acknowledges that the terms of the Licenses may prevent the
replacement of certain Sign Structures in the event of casualty loss;
notwithstanding anything in this Agreement, in such event Company shall have no
obligation to replace such Sign Structure if not permitted by any applicable
License.
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ARTICLE V
THE CLOSING
5.1 Closing. The Closing shall take place on the Closing Date, unless the
time is changed by mutual agreement of the parties.
5.2 Company's Deliveries. At the Closing, the Company shall deliver or
cause to be delivered to the Purchaser:
(a) Two (2) duly authorized and executed originals of the Xxxx of
Sale, Assignment and Assumption Agreements executed by Company and
Purchaser, together with such other instruments of assignment and transfer
or bills of sale as the Purchaser shall reasonably request; and
(b) A certificate signed by the secretary of the Company certifying
the adoption by Company's board of directors of resolutions authorizing the
transactions contemplated hereby.
In addition, the Company will relinquish full possession and enjoyment of all
Assets immediately upon consummation of the Closing.
5.3 Purchaser's Obligations. At the Closing, the Purchaser will deliver or
cause to be delivered to the Company or other designated person, the following:
(a) Payment, in good and collected funds available in Brady, Texas, of
the Purchase Price in the aggregate amount of Nine Hundred Thousand and
No/100 Dollare ($900,000.00), which delivery shall be facilitated by wire
transfer;
(b) Two (2) duly authorized and executed original of the Xxxx of Sale;
Assignment and Assumption Agreement
(c) Payment by Purchaser of all costs and fees associated with the
transfer of state permits to Purchaser in connection with the transactions
contemplated hereby;
(d) Purchaser's non-interest bearing promissory note to evidence its
obligation to make payment of the non-competition consideration in the
amount of $100,000, payable in ten (10) annual installments of $10,000
each, due and payable on the first and on each subsequent anniversary date
of the Closing Date, containing the usual provisions for default,
acceleration and recovery of attorney's fees and collection costs in the
event of non-payment; and
(e) A certificate signed by the secretary of the Purchaser certifying
the adoption by the Company's board of directors of resolutions authorizing
the transactions contemplated hereby.
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5.4 Prorations. The Company and the Purchaser shall prorate amount
themselves and make a net adjustment, as of the effective date of the
transaction, for prepayments received by the Company under the Advertising
Contracts of pursuant to other Assets, consideration paid in advance by the
Company under Site Agreements or other Assumed Obligations, and other prepaid
and/or deferred items as shall be appropriate to effect a transfer of the
Business as of the effective date of the transaction as set forth in Section
1.5. Such adjustment shall be applied to reduce or increase (as the case may be)
the purchase price payable at Closing to account for such prorations, and the
parties agree to execute a statement setting forth such prorations and
adjustments at Closing.
5.5 Insurance, Ad Valorem Taxes, Income Taxes, Receivables. Purchaser will
not assume any contracts of insurance as a part of the transactions contemplated
hereby. Under no circumstances shall the Purchaser be obligated to reimburse the
Company for any insurance premium payments that have been prepaid. With regard
to ad valorem taxes on the Assets for the 1997 tax year, the Company and the
Purchaser agree that the taxes to be paid shall be prorated as of the Closing
Date.
5.6 Further Assurances. At and after the Closing, each of the parties shall
take all appropriate action and execute all documents of any kind which may be
reasonably necessary or desirable to carry out the transactions contemplated
hereby. The Company, at any time at or after the Closing, will execute,
acknowledge and deliver any further bills of sale, assignments and other
assurances, documents and instruments of transfer reasonably requested by the
Purchaser, and will take any other action consistent with the terms of this
Agreement that may reasonably be requested by the Purchaser for the purpose of
assigning and confirming to the Purchaser all of the Assets. The Purchaser, at
any time at or after the Closing, will execute, acknowledge and deliver any
further amendments, documents, instruments or other papers, reasonably requested
Company. In addition, the Company shall make available the books and records of
the Business during reasonable business hours and take such other actions as are
reasonably requested by the Purchaser to assist the Purchaser in the operation
of the Business.
5.7 Termination of Employment of the Company's Employees. Nothing herein
shall imply or guarantee employment of any employee of the Business by the
Purchaser. If the Business's employees desire employment with the Purchaser,
they will be interviewed in conjunction with the applicants from other sources
and given strong consideration for available positions with Purchaser, at the
wages, hours, and conditions of employment established by Purchaser prior to
hiring any employees. Nothing shall prohibit Purchaser from terminating any of
the employees subsequent to their employment by Purchaser. Company shall pay all
wages, benefits, accrued vacation, sick pay and any other benefits the employees
of the Business are entitled to receive on or before the Closing. The Company
agrees to use reasonable efforts to make available employees of the Business to
the Purchaser that Purchaser desires to hire for the purpose of operating the
Business.
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5.8 Licenses. To the extent allowed under applicable law, the Company shall
have executed and delivered to Purchaser assignments of all the Licenses. With
respect to any License in which the consent of a governmental authority or third
party is required, Company and Purchaser shall each use commercially reasonable
efforts to procure such consent (subject to agreements herein contained
regarding the payment of transfer and other fees and costs). Prior to the
successful procurement of any such consent or approval to the assignment of
Licenses in which the same is required, and subject to any limitations imposed
by applicable law or regulation, Company agrees that it shall perform all acts
and execute any and all documents as may be reasonable requested by Purchaser so
that Purchaser may realize the benefits of such Licenses to the greatest degree
possible, until such time as such Licenses are successfully assigned to
Purchaser and/or until Purchaser is able to procure its own licenses with
respect to such Licenses and any others. Purchaser will pay any fees and
otherwise at its cost and expense fulfill any conditions to consent to the
transfer to Purchaser of any License that may be charged or imposed by the
agency or body issuing the same. Notwithstanding the foregoing, Purchaser shall
not be obligated hereunder to pay any past due amount or otherwise cure any
violation or breach by the Company that may exist under any such License, any
such past due amounts, violations, or breaches shall be remedied by the Company
within a reasonable period of time consistent with the principles and conditions
contained in the agreement.
ARTICLE VI
COVENANTS NOT TO COMPETE
6.1 Scope of Covenant. The Company hereby agrees that, for a period of ten
(10) years after the Closing Date (the "Non Compete Period"), neither it nor any
of its shareholders will engage in any business in the Territory similar to or
competitive with the Company's or Purchaser's business (as conducted on the
Closing Date) (a "Competing Business"), either directly or indirectly, whether
through any partnership of which any such person is a partner, through any trust
of which any such person is a beneficiary or trustee, or through a corporation
or other association in which any such person has any interest, legal or
equitable, or as agent, consultant, nominee, receiver, assignee, trustee or in
any other capacity whatsoever. During the Non Compete Period, neither the
Company nor any of its shareholders, officers, or directors will, either
directly or indirectly, on his own behalf or in the service of or on behalf of
others, solicit or attempt to divert to a Competing Business any person,
concern, or entity who is or was a customer of Purchaser or any subsidiary of
affiliate of Purchaser (or any customer of any of the foregoing), and further,
Company will not, either directly or indirectly, on its own behalf or in the
service of or on behalf of others, initiate a call upon any person, concern or
entity who is a customer of Purchaser or any of such customers for the purpose
of diverting or appropriating business to a Competing Business. Furthermore,
during the Non Compete Period, the Company will not, either directly or
indirectly, on its own behalf or in the service of or on behalf of others,
solicit, divert, or recruit any employee of Purchaser or any subsidiary or
affiliate to leave such employment or otherwise terminate his or her employment,
whether or not such employment is pursuant to a written contract or at will.
15
6.2 Severability of Provisions. The parties hereto agree that the duration
and area for which this covenant is to be effective are reasonable. In the event
that any court determines that the time period or the area, or both, are
unreasonable and the covenant is to that extent unenforceable, the parties agree
that the restrictions of this Article VI shall remain in full force and effect
for the greatest time period and within the greatest area that would not render
it unenforceable.
6.3 Remedies. The Company acknowledges and agrees that, by virtue of its
conduct of the Business and its use of the Assets, it has acquired a special
knowledge of the affairs, business and customer operations of the Business and
irreparable loss and damage will be suffered by Purchaser if Company should
breach or violate any of the covenants and agreements contained in this
Agreement. Company further acknowledges and agrees that each of the covenants
herein contained is reasonably necessary to protect and preserve the value of
the Assets acquired by Purchaser from the Company. Company therefore agrees and
consents that, in addition, to any other remedies available to Purchaser, to the
extent permissible by law Purchaser shall be entitled to an injunction or other
equitable relief to prevent a breach by Company of any of the covenants or
agreements contained in this Article VI. In the event either party hereto brings
legal action to enforce its rights hereunder, to the extent permissible by law,
the non-prevailing party shall pay all of the prevailing party's court costs and
reasonable legal fees and expenses arising out of such action.
6.4 Acknowledgment of Enforceability. Company hereby acknowledges and
agrees that a part of the consideration for this covenant not to compete is the
benefits Company is receiving under this Agreement. Company further acknowledges
and agrees that this covenant not to compete contains reasonable limitations as
to time, geographical area, and scope of activity to be restrained that do not
impose a greater restraint than is necessary to protect the goodwill or other
business interest of Purchaser and the value of the Assets acquired by Purchaser
from Company. Therefore, Company agrees that all restrictions are fairly
compensated for and that no unreasonable restrictions exist.
ARTICLE VII
TERMINATION
7.1 Termination. Purchaser may terminate this Agreement pursuant to Section
1.3 hereof. Otherwise, this Agreement may only be terminated upon the following
terms and conditions, subject to Section 7.3:
(i) Mutual Consent. By mutual consent of the Purchaser and the
Company.
(ii) By the Purchaser. By the Purchaser pursuant to the provisions of
Section 1.3, or if, as of the Closing Date, any of the conditions specified
in Section 5.2 of this Agreement have not be satisfied and shall not have
been waived by the Purchaser.
16
(iii) By the Company. By the Company if, as of the Closing Date, any
of the conditions specified in Section 5.3 of this Agreement have not been
satisfied and shall not have been waived by the Company, or if, for any
reason other than Company's failure to comply with the provisions hereof,
the Closing has not taken place by May 1,1998.
7.2 Notice of Termination. In the event that any party hereto exercises its
right to terminate this Agreement in accordance with the provisions of Section
7.1 hereinabove, such election shall be effective only when notice of such
election is given to each of the other parties hereto, in writing, in accordance
with the provisions of Section 9.3 hereof.
7.3 Effect of Termination or Waiver. In the event that this Agreement shall
be terminated pursuant to the provisions of Section 7.1 hereof, this Agreement
shall become null and void and shall have no further effect, and all further
obligations of the parties hereto under this Agreement shall terminate without
further liability of any party to another, except as otherwise provided in this
Agreement.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification.
A. By the Company. The Company shall indemnify, save, defend and hold
harmless the Purchaser and Purchaser's shareholders, directors, officers,
partners, agents and employees (collectively, the "Purchaser Indemnified
Parties") from and against any and all costs, lawsuits, losses, liabilities,
deficiencies, claims and expenses, including interest, penalties, attorneys'
fees and all amounts paid in investigation, defense of settlement of any of the
foregoing (collectively referred to herein as "Damages"), (i) incurred in
connection with or arising out of or resulting from or incident to any breach of
any covenant or warranty or the inaccuracy of any representation, made by the
Company in or pursuant to this Agreement, or any other agreement contemplated
hereby or in any schedule, certificate, exhibit, or other instrument furnished
or to be furnished by the Company or its affiliates under this Agreement, or
(ii) based upon, arising out of, or otherwise in respect of any liability or
obligation of the Business or relating to the Assets (a) relating to any period
prior to the Closing Date, other than those Damages based upon or arising out of
the Assumed Liabilities, or (c) relating to any period on and after the Closing
Date which constitute a breach or violation of this Agreement by the Company.
Notwithstanding anything to the contrary in this Section 8.1A, the Company shall
not be liable for any such Damages to the extent, if any, such Damages result
from or arise out of a breach or violation of this Agreement by or any negligent
or willful act or omission of any Purchaser Indemnified Parties.
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B. By the Purchaser. The Purchaser shall indemnify, save, defend and hold
harmless the Company and Company's shareholders , directors, officers, agents
and employees (collectively, the "Company Indemnified Parties") from and against
any and all Damages (i) incurred in connection with or arising out of or
resulting from or incident to any breach of any covenant or warranty, or the
inaccuracy of any representation, made by the Purchaser in or pursuant to this
Agreement, or any other agreement contemplated hereby or in any schedule,
certificate, exhibit, or other instrument furnished or to be furnished by the
Purchaser under this Agreement, or (ii) based upon, arising out of or otherwise
in respect of any liability or obligation of the Business or relating to the
Assets (a) relating to any period on and after the Closing Date or (b) arising
out of the Assumed Liabilities, or (c) relating to any period preceding the
Closing Date or arising out of facts or circumstances existing prior to the
Closing Date which constitute a breach or violation of this Agreement by the
Purchaser
C. Establishment of Damages from Third-Party Claims. If any lawsuit or
enforcement action (a "Claim") is filed by any third party against the Purchaser
Indemnified Parties or the Company Indemnified Parties (Purchaser Indemnified
Parties or Company Indemnified Parties, as the case may be, hereinafter, the
"Indemnitees"), which, if sustained, would result in Damages to the Indemnitees,
then the Indemnitees shall give written notice thereof describing such Claim in
reasonable detail and indicating the amount (estimated, if necessary) or good
faith estimate of the reasonably foreseeable estimated amount of Damages (which
estimate shall in no way limit the amount of indemnification the Indemnitees are
entitled to receive hereunder), shall be given to the indemnifying party as
promptly practicable (and in any event within ten (10) days after service of the
citation or summons) ("Notice of Action"); provided that the failure of any
indemnified party to give timely notice shall not affect its rights to
indemnification hereunder to the extent that the indemnified party demonstrates
that the amount the indemnified party is entitled to recover exceeds the actual
damages to the indemnifying party caused by such failure to so notify within ten
(10) days. The indemnifying party may elect to compromise or defend any such
Claim, and to assume all obligations contained in this Section 8.1 to indemnify
the Indemnitees by a delivery of notice of such election ("Notice of Elections")
within ten (10) days after delivery of the Notice of Action. Upon delivery of
the Notice of Election, the indemnifying party shall be entitled to take control
of the defense and investigation of such lawsuit or action and to employ and
engage attorneys of its own choice to handle and defend the same, at the
indemnifying party's sole cost, risk and expense, and such Indemnities shall
cooperate in all reasonable respects, at the indemnifying party's sole cost,
risk and expense, with the indemnifying party and such attorneys in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom; provided, however, that the Indemnitees may, at their own
cost, risk and expense, participate in such investigation, trial, and defense of
such lawsuit or action and any appeal arising therefrom. No settlement or
compromise of any Claim may be made by the indemnifying party without the prior
written consent of the Indemnitees unless (i) prior to such settlement or
compromise the indemnifying party acknowledges in writing its obligation to pay
in full the amount of the settlement or compromise and all associated expenses,
and the Indemnitees are furnished with security therefor reasonably satisfactory
to the Indemnitees that the indemnifying party will in fact pay such amount and
expenses; or (ii) the indemnifying party in fact pays the amount of the
settlement and compromise and all associated expenses. If the indemnifying party
elects not to defend the Claim or does not deliver to the Indemnitees a Notice
of Election within ten (10) days after delivery of the Notice of Action, the
Indemnitees may, (but shall not be obligated to) defend, or may compromise or
settle (exercising reasonable business judgment) the Claim on behalf, for the
account, and at the risk, of the indemnifying party.
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D. Establishment of Damages from Claims of Indemnified Parties. If the
Indemnitees assert any entitlement to Damages against the indemnifying party,
they shall give written notice to the indemnifying party of the nature and
amount of the Damages asserted. In the event of any such claim, it is agreed by
the parties that Damages shall not include (and the parties each hereby waive)
special, consequential, exemplary or punitive damages. If the indemnifying party
within a period of thirty (30) days after the giving of the Indemnitees' notice,
shall not respond in writing to the Indemnitees announcing its intent to contest
such assertion of the Indemnitees (such notice by the indemnifying party being
hereinafter referred to as the "Contest Notice"), such assertion of a claim for
Damages shall be settled by arbitration to be held in Waco, Texas in accordance
with the Commercial Rules of American Arbitration Association then existing. The
determination of the arbitrator shall be delivered in writing to the
indemnifying party and the Indemnitees and shall be final, binding and
conclusive upon all of the parties hereto, and the amount of the Damages, if
any, determined to exist, shall be deemed established.
E. Establishment of Damages by Agreement. The Indemnitees and the
indemnifying party may agree in writing, at any time, as to the existence and
amount of Damages, and, upon the execution of such agreement such Damages shall
be deemed established.
F. Payment of Damages. The indemnifying party hereby agrees to pay the
amount of established Damages within 15 days after the establishment thereof.
The amount of established Damages shall be paid in cash. Where Damages are
established by an arbitrator, judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof if such Damages are not
timely paid.
8.2 Survival of Representations and Warranties. All of the representations,
warranties, covenants and agreements contained in this Agreement shall survive
the Closing of the transactions contemplated herein and the execution and
delivery of the documents, instruments and agreements described in Article V
hereof, notwithstanding any investigation made by or on behalf of the Company or
the Purchaser.
ARTICLE IX
MISCELLANEOUS
9.1 Amendment and Modification. Except as provided otherwise in this
agreement, this Agreement may be amended, modified or supplemented only by
written agreement of the parties hereto.
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9.2 Waiver of Compliance; Consents. Any failure of the purchaser on the one
hand, or the Company, on the other hand, to comply with any obligation,
covenant, agreement or condition herein may be waived by the Company or the
Purchaser, respectively, only by a written instrument signed by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section
9.2.
9.3 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the other party at
the following addresses (or at such other address for a party as shall be
specified by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof):
(i) if to the Company, to:
Xxxxxxx Outdoor, Inc.
X.X. Xxx 000
Xxxxx, Xxxxx 00000
Attention: Xx. Xx Xxxxxxx
with a copy to:
Xx. Xxx Xxxxxxx
Xxxxxx, Xxxxxxx & Xxxxxxx, L.L.P.
X.X. Xxx 000
Xxxxxxxx, Xxxxx 00000
(ii) if to the Purchaser, to:
Xxxxxx Outdoor Advertising & Travel Centers, Inc.
000 Xxxxxxxxx XX
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
9.4 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties. This
Agreement is not intended to and shall not confer upon any person other than the
parties any rights or remedies hereunder.
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9.5 Governing Law. This Agreement shall be governed by the Laws of the
State of Texas (regardless of the laws that might otherwise govern under
applicable Texas principles of conflicts of law) as to all matters, including
but not limited to matters of validity, construction, effect, performance and
remedies.
9.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.7 Interpretation. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
9.8 Entire Agreement. This Agreement, including the exhibits hereto and the
documents, instruments and schedules referred to herein, embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, representations,
warranties, covenants, or undertakings, other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
undertakings between the parties with respect to such subject matter.
9.9 Waiver. A provision of this Agreement may be waived only by a written
instrument executed by or on behalf of the party waiving compliance. The failure
of any party at any time or times to require performance of any provision hereof
shall in no manner affect the right at a later time to enforce the same. No
waiver by any party of any condition, or of any breach of any term, covenant,
representation or warranty contained in this Agreement, in any one or more
instances, shall be construed to be a waiver of any other condition or of any
other breach of the same or any other term, covenant, representation or
warranty.
9.10 Disclosure. The parties hereto shall not, prior to Closing, make any
public disclosure of the transactions contemplated hereby or in connection
herewith without the written consent of the other party.
9.11 Expenses. Except as otherwise provided in this Agreement, the
Purchaser shall pay all expenses incurred by the Purchaser in connection with
entering into and carrying out its obligations pursuant to this Agreement,
including all its attorneys' fees, and the Company shall pay all expenses
incurred by the Company in connection with entering into and carrying out their
obligations pursuant to this Agreement, including all of its attorneys' fees.
9.12 Arbitration.
A. Binding Arbitration of Controversies. Notwithstanding any provision in
this agreement to the contrary, in case any disagreement, controversy or claim
whatsoever (other than an Excepted Controversy) shall arise between the parties
21
hereto in relation to this Agreement, whether as to any breach hereof, the
construction or operation hereof or the respective rights and liabilities
hereunder (a "Controversy"), and if said Controversy cannot be settled through
negotiation, the parties agree first to try in good faith to settle the
Controversy by mediation under the Commercial Mediation Rules of the American
Arbitration Association, before resorting to arbitration, litigation, or any
other dispute resolution procedure. If mediation is unsuccessful, then upon the
written demand of any party (a "Notice to Arbitrate"), whether made before or
after the institution of any other judicial proceeding, any Controversy shall be
settled by binding arbitration, to be held in Waco, Texas. Arbitration shall be
initiated by either party giving Notice to Arbitrate to the other, stating
therein the question to be arbitrated and the name of the arbitrator selected by
that party. Within thirty (30) days of the date of such Notice to Arbitrate, the
other party shall select and give written notice of its arbitrator to the
initiating party. The two arbitrators so selected shall select a third
arbitrator and give written notice within thirty (30) days after the second
arbitrator is chosen. The arbitration shall be conducted solely by the third
arbitrator, who shall hear evidence within sixty (60) days after the notice of
selection of the third arbitrator is given to the parties and to render an award
within thirty days of the hearing, which award, when signed by the third
arbitrator, shall be final. If a party receiving Notice of Arbitration shall
refuse or neglect to appoint an arbitrator within the time provided herein, then
the arbitrator so appointed by the first party shall have power to proceed to
arbitrate and determine the matter of disagreement as if he were an arbitrator
appointed by both the parties hereto for that purpose, and his award in writing
signed by him shall be final; provided that such award shall be made within
ninety (90) days after such refusal or neglect of the other party to appoint an
arbitrator. The party against which such award is made shall pay all costs and
expenses of the arbitration. Judgment upon the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof.
B. Excepted Controversies. Although the parties hereto may agree to submit
Excepted Controversies to mediation or binding arbitration, neither party shall
be required to do so. As used in this Agreement, the term "Excepted Controversy"
means (i) a claim or action by a party seeking solely injunctive relief
(together with costs and reasonable attorneys' fees incurred in connection
therewith) to (a) compel the performance of the confidentiality obligations of
Purchaser described in Section 1.4D hereof or restrain actions prohibited
thereby, or (b) compel specific performance of this Agreement following the
satisfaction or waiver by a party of all conditions to Closing provided for
herein; and (ii) any counterclaim by a party against which a claim described in
clause (i) is asserted seeking solely injunctive or declaratory relief (together
with costs and reasonable attorneys' fees incurred in connection therewith). No
claim or action (nor any counterclaim or counteraction) seeking damages
(including, without limitation, any Damages) shall be an Excepted Controversy.
9.13 Specific Performance; Remedies. Each of the parties hereby agrees that
the transactions contemplated by this Agreement are unique, and that each party
shall have, in addition to any other legal or equitable remedy available to it,
the right to enforce this Agreement by decree of specific performance. The
parties expressly authorize any arbitrator to render a binding decree of
specific performance or other relief of an equitable nature. If any legal action
22
or other proceeding is brought for the enforcement of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party or
parties be entitled to recover reasonable attorneys' fees other costs incurred
in that action or proceeding in addition to any other remedies to which it or
they may be entitled at law or equity. The rights and remedies granted herein
are subject to the provisions of Section 9.13 hereof, but are cumulative and not
exclusive of any other right or remedy granted herein or provided by law.
IN WITNESS WHEREOF, each of the parties hereto has caused the Agreement to
be executed on its behalf as of the date first above written.
"Purchaser" "Company"
XXXXXX OUTDOOR ADVERTISING XXXXXXX OUTDOOR, INC.
& TRAVEL CENTERS, INC.
By: By:
----------------------------- -----------------------------
X.X. Xxxx Xxxxx X. Xxxxxxx, Xx.
Executive Vice President President
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