PURCHASE AGREEMENT
THIS AGREEMENT is hereby made this, April 30, 1999 by and between Borderline
Outdoor Advertising, Inc., a Texas corporation, ("Company" or "SELLER"), and
Xxxxxx Outdoor Advertising & Travel Centers Incorporated, a Nevada corporation
("XXXXXX").
Purpose of Agreement
XXXXXX desires to purchase and SELLER desires to sell certain tangible and
intangible assets described on Schedule A that comprise SELLER's billboard
business known as "Borderline Outdoor Advertising " Therefore, in consideration
of the premises and of the mutual representations, warranties and covenants
herein contained, the parties hereby agree as follows:
Terms and Conditions
Purchase Price
The purchase price shall be One Hundred Fifty Thousand and No/100 Dollars
($150,000.00) paid in the following manner:
(a) $150,000.00 cash at closing;
In addition to the amount specified above, at closing an adjustment of the
purchase price listed above shall be made for:
(a) an amount equal to the amount of any prepaid rents, leases,
permits and taxes as specified in attached Exhibit E and incorporated
for all purposes herein. This amount will be paid by XXXXXX to SELLER,
but will be reduced by the amount of any prepaid advertising rents
received by SELLER and further reduced by XXXXXX'x prorated share
(prorated by day as of Closing date) of the current month's revenue
billed in advance by SELLER.
(b) an additional $12,500.00 for the purchase of a 12 x 24 unipole
structure that is located in storage and a 10 x 30 structure removed
from the Cresson site, also in storage.
The purchase price, and payments noted above, shall be the sole considerations
paid by XXXXXX under this agreement.
Date of Closing
The parties contemplate that Closing shall take place on April 30, 1999. If
Closing does not occur by that date, it will occur as soon thereafter as XXXXXX
is able to complete its due diligence investigation. The parties agree that
XXXXXX'x obligation to complete this purchase is contingent upon XXXXXX being
satisfied, in its sole discretion, that all representations made to it
concerning SELLER's assets are true; that the financial condition, books, and
accounts of SELLER are sound; that the land leases, outdoor advertising permits
and advertising contracts are of satisfactory condition to XXXXXX; and that the
value of the assets being transferred is not less than the purchase price.
Transfer of Assets
At closing, SELLER will sell, transfer, assign, convey and deliver to XXXXXX
free and clear of any liens, debts, or encumbrances, save and except any liens
or encumbrances affecting the underlying fee title estate on the real property
subject of the land leases and/or easements for the sign sites, and XXXXXX will
purchase, accept and acquire from SELLER all of the Assets listed in Exhibit A
attached hereto and incorporated for all purposes herein. Within 60 days from
Closing, XXXXXX will pickup the structures in storage with Xxx Xxxxxxx, 0000
Xxxxxx Xx., Xxxxxx, Xxxxx 00000. SELLER will be responsible for any storage
charges prior to Closing and for up to 60 days thereafter.
Instruments of Transfer
(a) SELLER Deliveries. At the closing, SELLER shall deliver to XXXXXX:
i. A xxxx of sale transferring to XXXXXX title to the Assets as
provided herein, in form and substance acceptable to XXXXXX and
SELLER;
ii. Form(s) from SELLER to the Texas Department of Transportation to
effect transfer of the outdoor advertising permits from SELLER to
XXXXXX.
iii. Assignment of land lease agreements and/or easements pertinent to
sign sites located on property owned by third parties (See
attached Exhibit G);
iv. Such other bills of sale, titles and other instruments of
assignment, transfer and conveyance as XXXXXX shall reasonably
request, in recordable form, where appropriate, and properly
executed, evidenced and notarized where appropriate in such form
as shall be necessary or appropriate to vest in XXXXXX good title
to the Assets.
v. Advertising contracts for all current advertisers.
vi. A corporate resolution.
(b) XXXXXX'x Deliveries. At the closing, XXXXXX shall deliver to SELLER:
i. Immediately available funds to one or more accounts designed by
SELLER for the purchase price as specified herein;
ii. Checks in an amount sufficient to pay the net amount due for
items listed in Exhibit E.
(c) Other Transfer Instruments. Following the Closing, at the request of
XXXXXX, SELLER shall deliver any further Instruments and take all
reasonable action as may be necessary or appropriate to vest in XXXXXX
all of SELLER's title to the assets.
Assumption of Liabilities
It is expressly understood and agreed by the parties hereto that
except as is otherwise provided herein to the contrary, XXXXXX assumes
no debts, liabilities (including tax liabilities) or obligations
(contractual or otherwise) of SELLER or any other debts, liabilities
or obligations related to the conduct of SELLER's business arising
prior to Closing. XXXXXX shall assume SELLER's obligations pursuant to
the advertising contracts, land leases, easements, outdoor advertising
permits and any other of SELLER's assets purchased by XXXXXX that
accrue after the Closing so long as such accrual was not as a result
of a default thereunder by SELLER for which SELLER will continue to be
responsible. XXXXXX agrees to hold harmless and indemnify SELLER from
any actions brought as a result of an breach by XXXXXX of the
obligations assumed pursuant to the previous sentence.
Representations and Warranties
SELLER represents and warrants to XXXXXX as of the date hereof and on
the closing date as follows (all representations and warranties being
joint and several):
(a) Authority. SELLER has the legal authority to sell, transfer,
and deliver to XXXXXX the tangible and intangible assets of
the SELLER's outdoor advertising business.
(b) Title. SELLER has good and indefeasible title to all
properties, assets and leasehold estates, real and personal,
tangible and intangible, to be transferred pursuant to this
Agreement subject to no mortgage, pledge, lien, conditional
sales agreement, encumbrance or charge except for mortgages,
liens or encumbrances on the real property fee simple
estates of the ground lessors and liens to be released at
Closing.
(c) Insurance. SELLER carries insurance, which it believes to be
adequate in character and amount, with reputable insurers in
respect of assets being acquired and such insurance policies
are still in full force and effect, and shall be in effect
without interruption until closing has occurred.
(d) Violations, Suits, Claims, etc. To the best of SELLER's
actual knowledge, SELLER is not in default under any law or
regulation, or under any order of any court or federal,
state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality
wherever located, and to SELLER's actual knowledge and
belief there are (1) no claims, actions, suits or
proceedings instituted or filed and (2) no claims actions,
suits or proceedings threatened presently or which in the
future may be threatened or asserted against or affecting
SELLER at law or in equity, or before or by any federal,
state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality
wherever located, and (3) there are no potential claims,
demands, liens, encumbrances, or debts with regard to the
assets that are the subject of this sale or that may create
for XXXXXX any environmental or regulatory liability, except
as have been previously disclosed to XXXXXX.
(e) Tax Returns. SELLER has filed or will file all requisite
federal, state and other tax returns due for all fiscal
periods ended on or before the date of this agreement. There
are no claims against SELLER for federal, state or other
taxes for any period or periods to and including the date of
this agreement.
(f) Authorizations and Enforceability. SELLER has all requisite
power and authority to execute, deliver and perform this
Agreement and the other agreements and instruments delivered
pursuant hereto and to consummate the transactions
contemplated hereby. This Agreement and the other agreements
and instruments delivered pursuant hereto have been duly and
validly authorized, executed and delivered by SELLER and
constitutes the valid and binding obligations of SELLER,
fully enforceable in accordance with their terms.
(g) Effect of Agreement. To the best of SELLER's actual
knowledge, the execution, delivery and performance of this
Agreement by SELLER and the consummation of the transactions
contemplated hereby will not, with or without the giving of
notice or the lapse of time, or both: (a) violate any
material provision of law, statute, rule or regulation to
which SELLER is subject; (b) violate any judgment, order,
writ or decree of any court, arbitrator or governmental
agency applicable to SELLER; or (c) result in a material
breach of or material conflict with any term, covenant,
condition or provision of, result in the modification or
termination of, constitute a material default under, or
result in the creation or imposition of, any lien, security
interest, charge or encumbrance upon any of the Assets
pursuant to any charter, bylaw, commitment, contract or
other agreement or instrument, to which SELLER is a party or
by which any of its Assets is bound.
(h) Permits, Licenses, Compliance with Applicable Laws and Court
Orders. SELLER has all requisite power and authority, and
all permits, licenses and approvals of governmental and
administrative authorities, to own, lease and operate its
properties and to carry on its business as presently
conducted; all such permits, licenses and approvals material
to the conduct of the business of SELLER are in full force
and effect. To the best of SELLER's actual knowledge,
SELLER's conduct of its business does not materially violate
or infringe any applicable law, statute, ordinance or
regulation. To the best of SELLER's actual knowledge, SELLER
is not in default in any respect under any executive,
legislative, judicial, administrative or private (such as
arbitration) ruling, order, writ, injunction or decree.
(i) Financial Information. All financial information relating to
the Assets or the business and provided to XXXXXX by SELLER
have been prepared from the books and records of SELLER and
fairly and accurately present the financial condition of
SELLER and the business relating to the Assets as of the
date of such information.
(j) Agreements, Plans, Arrangements, etc. Except as set forth in
Exhibit A, none of the Assets are bound or affected by, any
oral or written:
(1) lease agreement (whether as lessor or lessee) relating
to real or personal property;
(2) license agreement, assignment or other contract
(whether as licensor or licensee, assignor or assignee)
relating to trademarks, trade names, patents,
copyrights (or applications therefor);
(3) agreement with any business broker with respect to this
transaction;
(4) agreement with any supplier, distributor, franchisor,
dealer, sales agent or representative;
(5) joint venture or partnership agreement with any other
person;
(6) agreement with any bank, factor, finance company or
similar organization regarding the financing of
accounts receivable or other extensions of credit;
(7) agreement granting any lien, security interest or
mortgage on any Asset or other property of SELLER,
including, without limitation, any factoring agreement
for the assignment of accounts receivable, other then
encumbrances that will be released at Closing;
(8) agreement for the Construction or modification of any
Asset or leasehold interest of SELLER;
(9) agreement with any employee, consultant, or independent
contractor providing personal services to SELLER.
(k) Acquisition Agreements. There are no agreements relating to
the acquisition of the business or Assets of SELLER to which
SELLER is presently a party, other than this Agreement.
(l) Status of Real Property. SELLER has not received any notice
of noncompliance with respect to real property on which any
of the Assets are located (the "Real Property") with any
applicable statutes, laws, codes, ordinances, regulations or
requirements relating to fire, safety, health or
environmental matters or noncompliance with any covenants,
conditions and restrictions (whether or not of record) or
local, municipal, regional, state or federal requirements or
regulations. To the best of SELLER's actual knowledge, there
has been no release or discharge on or under the Real
Property by SELLER of any toxic or hazardous substance,
material or waste which is or has been regulated by any
governmental or quasi-governmental authority or is or has
been listed as toxic or hazardous under any applicable
local, state or federal law. To the best of the SELLER's
actual knowledge, there are no subsurface or other
conditions related to toxic or hazardous waste affecting the
Real Property or any portion or component thereof, and there
are no underground storage tanks located on the Real
Property.
(m) Defects. To the best of SELLER's actual knowledge, there are
no structural or operational defects in any of the Assets.
SELLER acknowledges that to the best of SELLER's actual
knowledge all signs were constructed and installed to normal
industry standards by qualified and licensed manufacturers
and installers.
(n) Leases Current. All obligations of the SELLER under all
existing lease agreements which are required by such
agreements to have been performed by SELLER have been
fulfilled by the SELLER, including the payment by the SELLER
of all lease payments due and payable through the date
hereof.
(O) Permits Current. All payments due and payable for required
permits from governmental bodies have through the date
hereof been fulfilled by the SELLER.
XXXXXX represents and warrants to SELLER as of the date hereof and the Closing
date as follows:
(a) Organization. XXXXXX is a validly existing corporation
organized under the laws of the State of Nevada and has all
requisite corporate power and authority to own, operate and
lease its properties and assets.
(b) Authority. XXXXXX has full corporate power, authority and
legal rights to execute and deliver, and to perform its
obligations under this Agreement, and has taken all
necessary action to authorize the purchase hereunder on the
terms and conditions of this Agreement and to authorize the
execution, delivery and performance of this Agreement. This
Agreement has been duly executed by XXXXXX, and constitutes
a legal, valid and binding obligation of XXXXXX enforceable
in accordance with its terms.
(c) Compliance with Instruments, Consents, Adverse Agreements.
Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will
conflict with or result in any violation of or constitute a
default under the articles of incorporation or the by-laws
of XXXXXX, or any Law, Instrument, lien or other Contract by
which XXXXXX is bound. XXXXXX is not a party or subject to
any Contract, or subject to any article or other corporate
restriction or any Law which materially and adversely affect
the business operation, prospects, properties, assets or
condition, financial or otherwise, of XXXXXX.
(d) Litigation. There is no suit, action or litigation,
administrative, arbitration, or other proceeding or
governmental investigation pending or, to the knowledge of
XXXXXX, threatened which might, severally or in the
aggregate materially and adversely affect the financial
condition or prospects of XXXXXX or XXXXXX'x ability to
acquire the Assets as contemplated by this Agreement.
(e) Brokers. All negotiations relative to the Agreement and the
transactions contemplated hereby have been carried on by
XXXXXX in such a manner as not to give rise to any valid
claim against SELLER for a finder's fee, brokerage
commission or other like payment.
Conditions to Xxxxxx'x Obligations
The obligations of XXXXXX hereunder are subject to the
fulfillment, at or prior to the Closing, of each of the following
conditions, any or all of which may be waived in writing by
XXXXXX, in its sole discretion:
(a) Accuracy of Representations and Warranties. Each of the
representations and warranties of SELLER contained in this
Agreement shall be true on and as of the Closing Date with
the same force and effect as though made on and as of the
Closing Date, except as affected by transactions
contemplated hereby.
(b) Performance of Covenants. SELLER shall have performed and
complied with all covenants, obligations and agreements to
be performed or complied with by it on or before the Closing
Date pursuant to this Agreement.
(c) No Litigation or Claims. No claim, action, suit, proceeding,
arbitration, investigation or hearing or notice of hearing
shall be pending or threatened against or affecting SELLER
which: (a) might foreseeably result, or has resulted, either
in an action to enjoin or prevent or delay the consummation
of the transactions contemplated by this Agreement or in
such an injunction; or (b) could, in the determination of
XXXXXX, have an adverse effect on the assets to be
transferred hereunder.
(d) No Violations. No material violation of SELLER shall exist,
or be alleged by any governmental authority to exist, of any
law, statute, ordinance or regulation, the enforcement of
which would adversely affect the financial condition,
results of operations, properties or business of SELLER.
(e) Consents and Assignments. SELLER shall have delivered to
XXXXXX all consents and assignments of all persons and
entities necessary for the performance of the transactions
contemplated by this Agreement, including the transfer of
all assets and the assignment of leases, and SELLER shall
have obtained the consents of: any lender to SELLER, or, in
the alternative, the release of all liens held by such
lender, with respect to the sale and transfer of the assets;
and any other consents of third parties deemed necessary or
appropriate by XXXXXX.
(f) Satisfactory Completion of Due Diligence. XXXXXX shall be
satisfied in its sole discretion with the content of the
final Exhibits hereto and other related documents for
closing and shall otherwise be satisfied in its sole
discretion with the results of its due diligence review,
including the right to terminate this agreement with no
penalty in the event that the land leases, outdoor
advertising permits and advertising contracts are not of
satisfactory condition to XXXXXX.
Indemnification
(a) Indemnification Obligations of SELLER. SELLER shall defend,
indemnify, save and keep harmless XXXXXX and its successors
and permitted assigns against and from any liability, loss,
cost, damage, claim, fine, penalty or expense, including,
without limitation, reasonable attorneys' fee ("Damages"),
sustained or incurred by any of them resulting from or
arising out of or by virtue of : (a) any material inaccuracy
in or material breach of any representation and warranty
made by SELLER in the Agreement or in any closing document
delivered to XXXXXX in connection with this Agreement;
and/or (b) any breach of contract on or prior to the Closing
arising out of SELLER's ownership of the Assets; and/or (c)
any personal injury and/or property damage from any accident
occurring on or before the Closing arising out of SELLER's
ownership of the billboards.
(b) Indemnification Obligations of XXXXXX. XXXXXX shall defend,
indemnify, save and keep harmless SELLER and its successors
and permitted assigns against and from all Damages (as
defined in subparagraph (a) immediately preceding) sustained
or incurred by any of them resulting from or arising out of
or by virtue of: (a) any material inaccuracy in or breach of
any representation and warranty made by XXXXXX in this
Agreement or in any closing document delivered to SELLER in
connection with this Agreement; and/or (b) XXXXXX'x failure
to pay, discharge and perform any of the liabilities assumed
in this Agreement; and/or (c) any breach of contract arising
out of XXXXXX'x ownership of the Assets from and after the
Closing, and/or (d) any personal injury and/or property
damage arising out of any accident occurring from and after
the Closing. XXXXXX'X INDEMNIFICATION OBLIGATIONS UNDER THIS
SUBPARAGRAPH SHALL INCLUDE DAMAGES WHICH ARISE FROM THE SOLE
OR CONCURRENT NEGLIGENCE OR FAULT OF SELLER OR EMPLOYEES OR
INDEPENDENT CONTRACTORS DIRECTLY RESPONSIBLE TO SELLER,
ARISING OUT OF, INCIDENT TO, OR IN ANY WAY CONNECTED OR
RELATED TO THE ORIGINAL CONSTRUCTION, USE, CONDITION,
LOCATION, MAINTENANCE, REPAIR OR OPERATION OF THE
BILLBOARDS. IT IS THE EXPRESSED INTENTION OF THE PARTIES
HERETO, BOTH SELLER AND XXXXXX, THAT THE INDEMNITY PROVIDED
FOR IN THIS PARAGRAPH IS AN INDEMNITY BY XXXXXX TO INDEMNIFY
AND PROTECT SELLER FROM THE CONSEQUENCES OF SELLERS OWN
NEGLIGENCE, WHETHER THAT NEGLIGENCE IS THE SOLE OR A
CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE.
Taxes
Real Estate and personal property taxes, if any, assessed or to be
assessed for the current calendar or fiscal year, regardless of
when payable, shall be prorated between XXXXXX and SELLER as of
the closing date.
Risk of Loss
The risk of loss or destruction of or damage to the assets
transferred hereunder, including inventory, fixtures, equipment
and real property from any cause whatsoever at all times on or
subsequent to the execution of this document but before closing
shall be borne by SELLER.
Dispute Resolution
(a) In the event of any dispute arising from this Agreement, the
Parties agree to attempt a solution through nonbinding
mediation conducted by a mutually agreed mediator. While the
mediation shall be nonbinding in all respects (except
agreements in settlement of the dispute negotiated by the
Parties), each Party agrees that:
(i) it shall appear when directed by the mediator, be fully
prepared to work towards a resolution of the dispute,
and participate in good faith in the mediation towards
a resolution of all disputed issues or concerns; and
(ii) the duty to mediate in good faith shall be specifically
enforceable by the courts of Texas.
(b) Any questions, claims, disputes, or litigation arising from
or related to this Agreement are governed by the laws of the
state of Texas without regard to the principles of conflicts
of law.
(c) The Parties agree that Texas has a substantial relationship
to this transaction, and that this Agreement is performable
in Tarrant County, Texas. Each Party consents to personal
jurisdiction in the courts thereof, and any action or suit
arising from or related to this Agreement shall only be
brought by the Parties in any federal or state court with
appropriate jurisdiction over the subject matter established
or sitting in the state of Texas located in Tarrant County,
Texas.
Miscellaneous
(a) Expenses. Except as otherwise provided herein, whether or
not the transactions contemplated by this Agreement are
consummated, each party hereto shall pay its own expenses
and the fees and expenses of its counsel and accountants and
other experts. Furthermore, XXXXXX shall be responsible for
payment to the business broker retained by it.
(b) Survival of Representations and Warranties. The
representations, warranties, covenants and agreements set
forth in this Agreement and any other written representation
in any ancillary document shall survive the Closing.
(c) Waivers. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
(d) Binding Effect; Benefits. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
(e) Notices. All notices, requests, demands and other
communications which are required to be or may be given
under this Agreement shall be in writing and shall be deemed
to have been duly given when delivered in person or
transmitted by fax or five (5) days after deposit in the
U.S. mails by certified or registered first class mail,
postage prepaid, return receipt requested, addressed to the
party to whom the same is so given or made.
if to SELLER to:
Xxxxxx Xxxx
0000 Xxxxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
if to XXXXXX to:
XXXXXX Outdoor Advertising and Travel Centers Incorporated
000 Xxxxxxxxx Xxxx. X.X.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President
or to such other address or Fax Number as any party may
designate by giving notice to the other parties hereto.
(f) Further Assurances. The Company shall, from time to time at
or after the Closing, at the request of XXXXXX, and without
further consideration, execute and deliver such other
instruments and take such other actions as may be reasonably
required to confer to XXXXXX and its assignees the benefits
contemplated by this Agreement.
(g) Entire Agreement. This document contains the entire
agreement between the parties and supersedes all prior
agreements between the parties, if any, written or oral,
with respect to the subject matter thereof.
AGREED and ACCEPTED:
XXXXXX OUTDOOR ADVERTISING & TRAVEL CENTERS INCORPORATED
By:________________________________________
Xxxxxxx X. Xxxxxx, CEO/President/Chairman
BORDERLINE OUTDOOR ADVERTISING, INC.
By:______________________________________
Xxxxxx Xxxx, President
Acknowledgment for Corporations
STATE OF NEW MEXICO )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ___ day of
__________________, 199___, by Xxxxxxx X. Xxxxxx, CEO/President/Chairman of
XXXXXX Outdoor Advertising & Travel Centers Incorporated, a Nevada Corporation,
on behalf of the corporation.
--------------------------------
Notary Public
My commission expires:
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STATE OF TEXAS )
) ss.
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ___ day of
___________________, 199__ by Xxxxxx Xxxx, President of Borderline Outdoor
Advertising, a Texas Corporation, on behalf of the corporation.
--------------------------------
Notary Public
My commission expires:
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