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EXHIBIT 99.5
JOINT VENTURE
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is entered into as of
February 28, 1997 ("Closing Date"), by and between OUTDOOR SYSTEMS, INC., a
Delaware corporation ("Buyer"), and XXXXXXXX/TOWER OUTDOOR SIGN JOINT VENTURE, a
Texas joint venture ("Seller"). (Buyer and Seller are sometimes herein referred
to individually as a "Party" and collectively as the "Parties".)
RECITALS
Seller is engaged in the business of owning and operating outdoor signs
and billboards and otherwise providing outdoor advertising services in the
metropolitan Dallas/Fort Worth area (the "Business"). Seller desires to sell and
assign the outdoor advertising assets to Buyer, and Buyer desires to purchase
such assets and to assume certain liabilities associated with such assets,
pursuant to the terms, conditions, limitations and exclusions contained in this
Agreement.
AGREEMENT
The Parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the terms listed on Exhibit A attached
hereto have the meanings specified or referred to in Exhibit A.
2. PURCHASE AND SALE OF THE ASSETS; CLOSING
2.1 AGREEMENT TO PURCHASE AND SELL. Subject to the terms and conditions
of this Agreement, Seller hereby grants, sells, assigns, transfers, conveys and
delivers all right, title and interest in and to the Purchased Assets, free and
clear of any liens, title claims, Encumbrances or Security Interests (except for
Permitted Liens), and Buyer hereby buys and acquires the Purchased Assets from
Seller, and assumes the Assumed Liabilities upon the terms and conditions set
forth in this Agreement.
2.2 PURCHASED ASSETS. The Purchased Assets are all of the assets of
Seller used in the Business, including:
(a) All of the billboard displays and other out-of-home
advertising structures (including rights to walls), including, without
limitation, those set forth and described in Schedule 2.2(a) attached hereto,
together with all components, fixtures, parts, appurtenances, and equipment
attached to or made a part thereof that are existing, under construction or for
which Seller has any rights (collectively, the "Structures");
(b) All leases, licenses, easements, other rights of ingress
or egress, and all other grants of the right to place, construct, own, operate
or maintain the Structures on land, buildings and
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other real property owned by third parties, and all rights therein
(collectively, the "Site Leases"), including, without limitation, those Site
Leases listed on Schedule 2.2(b); and all state and local licenses or
permits/tags which Seller has with respect to the Structures and, to the extent
assignable, all other Governmental Authorizations that are required for the
operation of the Structures, (collectively, the "Permits"), including, without
limitation, those Permits listed on Schedule 2.2(b);
(c) All rights under existing and pending sales and
advertising contracts associated with the Structures, and all rights to the
advertising copy displayed on the Structures as of the Closing Date
(collectively, the "Advertising Contracts"), including, without limitation,
those Advertising Contracts listed on Schedule 2.2(a) attached hereto;
(d) All pertinent Books and Records;
(e) All Intangible Property used in connection with the
Business except the trade name "Xxxxxxxx"; and
(f) All rights (including any benefits arising therefrom),
causes of action, claims and demands of whatever nature (whether or not
liquidated) of Seller relating to the Purchased Assets, including, without
limitation, condemnation rights and proceeds, and all rights against suppliers
under warranties covering any of the Purchased Assets.
Notwithstanding the foregoing, the Purchased Assets shall not include the assets
listed on Schedule 2.2(x) (collectively, "Excluded Assets").
2.3 AGREEMENT TO ASSUME CERTAIN LIABILITIES. Buyer hereby assumes and
agrees to discharge and perform all liabilities and obligations that arise or
are attributable to events occurring on or after the Closing Date pursuant to
the Site Leases and the Advertising Contracts(the "Assumed Liabilities") but to
the extent and only to the extent that:
(a) Such obligations are performable on or after the Closing
Date; and
(b) Such obligations are attributable to periods arising on or
after the Closing Date.
2.4 EXCLUDED LIABILITIES. All claims against and liabilities and
obligations of Seller not specifically assumed by Buyer pursuant to Section 2.3,
including, without limitation, the following claims against and liabilities of
Seller (the "Excluded Liabilities"), are excluded, and shall not be assumed or
discharged by Buyer, and shall be discharged in full when due by Seller:
(a) Any liabilities to the extent not attributable to the
Purchased Assets;
(b) Any liability of Seller for Taxes arising prior to or from
the sale of the Purchased Assets under this Agreement other than Transfer Taxes.
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(c) Any liabilities for or related to indebtedness of Seller
to banks, financial institutions, or other Persons;
(d) Any liabilities of Seller for or with respect to any
employees of Seller, including, without limitation, any liabilities pursuant to
any compensation, collective bargaining, pension, retirement, severance,
termination, or other benefit plan, agreement or arrangement; and
(e) Any other liabilities of Seller that are attributable to
or arise from facts, events, or conditions that occurred or came into existence
prior to the Closing.
2.5 PURCHASE PRICE. The Purchase Price for the Assets is Three Hundred
Seventy Six Thousand Ninety Five Dollars ($376,095). The Purchase Price shall be
subject to adjustment as follows:
(a) The following items shall be prorated between Seller and
Buyer as of the Closing Date with respect to the Purchased Assets: power and
utility charges, real and personal property taxes, rents (including percentage
rents) prepaid leases and security deposits under Site Leases and payments and
security deposits under Advertising Contracts. Prorations will be on a
dollar-for-dollar basis based on the number of days of display before and after
the Closing Date. Percentage rents shall be prorated as of the Closing Date. The
effective time of the Closing shall be 11:59 p.m., Eastern Standard Time, on the
Closing Date.
(b) Within ninety (90) days after the Closing Date, Buyer will
prepare and provide to Seller the final calculations of adjustments to the
Purchase Price (the "Closing Date Adjustment"). On the 120th day after the
Closing Date, all required refunds or payments under this Section 2.5, shall be
made on the basis of the Closing Date Adjustment.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING. Seller is a joint venture duly
organized, validly existing and in good standing under the laws of the State of
Texas. Seller has the full power and authority to conduct the Business as it is
now being conducted, to own or use the Purchased Assets, and to perform all its
obligations. Seller has delivered to Buyer true and complete copies of its
Organizational Documents, as currently in effect. Seller is duly qualified to do
business and in good standing in each jurisdiction in which the property owned,
leased or operated by it or the nature of the business conducted by it makes
such qualification necessary.
3.2 AUTHORITY; NO CONFLICT.
(a) Each of this Agreement and any documents executed
contemporaneously herewith pursuant to this Agreement (collectively, the
"Closing Documents") constitutes the legal, valid, and binding obligation of
Seller, enforceable against it in accordance with its terms. Seller has the
absolute and unrestricted right, power and authority to execute and deliver this
Agreement and the
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Closing Documents to which it is a party and to perform its obligations
thereunder. The Joint Venturers are the sole holders of any interest in Seller.
The execution, delivery and performance of this Agreement has been specifically
authorized by the Joint Venturers.
(b) Neither the execution and delivery by Seller of this
Agreement nor the consummation or performance by Seller of any of the
Contemplated Transactions will:
(i) conflict with, violate or result in a breach of
(A) any provision of the Organizational Documents of Seller; (B) to
Seller's Knowledge, any Legal Requirement or any Order to which Seller,
the Business or any of the Purchased Assets may be subject; (C) to
Seller's Knowledge, any Governmental Authorization held by Seller or
that otherwise relates to the Business or the Purchased Assets; or (D)
any material Contract to which Seller is a party or by which Seller or
the Purchased Assets may be bound; or
(ii) contravene, conflict with, or result in a
violation or breach of any provision of, or give any Person the right
to declare a default or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any
interest or rights of Seller in or to the Purchased Assets; or result
in the imposition or creation of any Encumbrance upon or with respect
to any of the Purchased Assets;
(c) Except as set forth in Part 3.2(c) of the Disclosure
Schedule, Seller is not and will not be required to give any notice to or obtain
any Consent from any Person in connection with the execution and delivery of
this Agreement or the consummation or performance of any of the Contemplated
Transactions.
3.3 SOLVENCY. By consummating the transactions contemplated hereby,
Seller does not intend to hinder, delay or defraud any of Seller's present or
future creditors. Before giving effect to the transactions contemplated hereby,
Seller has been paying its debts as they become due in the ordinary course of
business and, after giving effect to the transactions contemplated hereby,
Seller will have paid or discharged all of its debts (or made adequate provision
for the payment thereof).
3.4 BOOKS AND RECORDS. The books of account, and other Books and
Records of Seller maintained in connection with the Purchased Assets are
complete and correct in all material respects and have been maintained in
accordance with sound business practices.
3.5 STRUCTURES. Seller owns all of the Structures. To Seller's
Knowledge, each Structure (i) is located entirely on property covered by a Site
Lease or is located entirely on the Real Property, and (ii) complies in all
material respects with the terms of the Permits pertaining to it.
3.6 PERMITS. The Permits constitute all material licenses, permits,
registrations and approvals necessary to operate the Business. Seller is in
material compliance with the terms of the Permits. Seller is not aware of any
fact or event which constitutes a material violation of any Permit, and Seller
has not received written notice that any Governmental Body issuing any Permit
intends to cancel, terminate, modify or amend any Permit.
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3.7 SITE LEASES AND ADVERTISING CONTRACTS. Seller has delivered to
Buyer true and complete copies of the Advertising Contracts and the Site Leases.
All sales made to advertisers in connection with the Structures have been made
pursuant to Advertising Contracts. The Site Leases and the Advertising Contracts
are in full force and effect, and are binding upon the parties thereto. To the
Knowledge of Seller, (x) no default by Seller or any other party has occurred
under the Site Leases or Advertising Contracts, and (y) no event, occurrence or
condition exists which (with or without notice or lapse of time or the happening
of any further event or condition) would become a default by Seller or Manager
thereunder or would entitle any other party to terminate a Site Lease or
Advertising Contract, to make a claim or set-off against Seller or Manager or
otherwise to amend such Site Lease or Advertising Contract or prevent such Site
Lease or Advertising Contract from being renewed in accordance with its terms.
Neither Seller nor Manager has received any written notice of default,
termination or non-renewal under any Site Lease or Advertising Contract.
3.8 TITLE, ENCUMBRANCES.
(a) Seller has good title to all of the Purchased Assets, and
there are no existing agreements, options, commitments or rights with, of or to
any Person to acquire any of the Purchased Assets or any interest therein. All
of the Purchased Assets are owned by Seller free and clear of all Encumbrances
and Security Interests except for Permitted Liens.
(b) None of the Structure or Site Leases are or will be, to
the Knowledge of Seller, subject to zoning, use, or building code restrictions
that will prohibit the continued effective ownership, leasing or other use of
such assets as currently owned and used by Seller. Neither Seller nor Manager
has received any notice of pending or Threatened claims, Proceedings, planned
public improvements, annexations, special assessments, rezonings or other
adverse claims affecting the Site Leases.
3.9 NO UNDISCLOSED LIABILITIES. Seller has no material liabilities or
obligations of any nature relating to the Purchased Assets.
3.10 TAXES. With respect to the Purchased Assets;
(a) Seller and the Joint Venturers have filed or caused to be
filed all Tax Returns that are or were required to be filed by each of them
pursuant to applicable Legal Requirements. Seller and the Joint Venturers have
paid, or made provision for the payment of, all Taxes that have or may have
become due pursuant to those Tax Returns or otherwise, or pursuant to any
assessment received by Seller or the Joint Venturers.
(b) No unpaid Taxes create an Encumbrance (other than
Permitted Liens) on the Purchased Assets or the Real Property.
(c) Buyer shall not be liable for any Taxes of Seller or the
Joint Venturers as a result of the Contemplated Transactions.
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3.11 COMPLIANCE WITH LEGAL REQUIREMENTS. Seller has complied with all
Legal Requirements applicable to its ownership or use of the Purchased Assets
and Real Property, except for noncompliances or failures that, individually or
in the aggregate, would not be reasonably expected to have a Material Adverse
Effect.
3.12 LEGAL PROCEEDINGS; ORDERS. There is no Proceeding pending or, to
the Knowledge of Seller, Threatened against Seller or the Joint Venturers or
affecting any of the Purchased Assets, and there is no Order to which Seller or
the Joint Venturers or the Purchased Assets are subject.
3.13 OTHER CONTRACTS Seller is not a party to or bound by any Other
Contract.
3.14 ENVIRONMENTAL MATTERS. With respect to the Purchased Assets and
the use or operation thereof: to Seller's Knowledge, (i) Seller is, and has
been, in material compliance with all Environmental Laws; (ii) Seller has timely
filed all material reports, obtained all required approvals and permits relating
to the Business, and generated and maintained all material data, documentation
and records under any applicable Environmental Laws; (iii) to the Knowledge of
Seller, there has not been any release of the Hazardous Materials at or in the
vicinity of the Business, or in areas for which Seller would have responsibility
under Environmental Laws; (iv) Seller has not received any written notice from
any Governmental Body or private or public entity advising it that it is or may
be responsible for response costs with respect to a Release, a threatened
Release or clean up of Hazardous Materials produced by, or resulting from, its
Business, operations or processes; and (v) Seller has delivered to Buyer true
and complete copies and results of any reports, studies, analyses, tests, or
monitoring possessed by Seller pertaining to Hazardous Materials in, on, or
under the properties included in the Purchased Assets.
3.15 INTANGIBLE PROPERTY. Seller uses no Intangible Property in
connection with the operation of the Purchased Assets except for the Permits,
the Books and Records, the trade name "Xxxxxxxx", and licenses for commonly
available software programs under which Seller is currently the licensee.
3.16 RELATIONSHIPS WITH AFFILIATES. Except as set forth on Part 3.16 of
the Disclosure Schedule, Seller is not a party to any contract with an Affiliate
of Seller or Seller's predecessor relating to the Purchased Assets, the Real
Property or the Business. None of Seller or any of its Affiliates is the owner
(of record or as a beneficial owner) of an equity interest or any other
financial or profit interest in, a Person (other than Seller) that has business
dealings or a material financial interest in any transaction with Seller
involving the Purchased Assets or the Business.
3.17 BROKERS OR FINDERS. Neither Seller nor any Affiliate of Seller has
incurred any obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other similar payment in connection with
this Agreement.
3.18 EMPLOYEE BENEFIT MATTERS. With respect to each of Seller and each
Joint Venturer:
(a) Each does not maintain and has never maintained an
"employee benefit pension plan", within the meaning of ERISA Section 3(2), that
is or was subject to Title IV of ERISA.
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(b) Each does not have and has not ever had any past, present
or future obligation or liability to contribute any "multiemployer plan", as
defined in ERISA Section 3(37).
For purposes of this Section 3.18, the terms "Seller" and "Joint Venturer" shall
be deemed to include any other corporation, trade, business or other entity,
other than Seller or the Joint Venturer, which would, together with Seller or
the Joint Venturer, now or in the past, constitute a single employer within the
meaning of Section 414 of the IRC.
3.19 DISCLOSURE. No representation or warranty of Seller in this
Agreement and no statement in the Disclosure Schedule omits to state a material
fact necessary to make the statements herein or therein, in light of the
circumstances in which they were made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware.
4.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
Upon the execution and delivery by Buyer of the Closing Documents to which Buyer
is a party, such Closing Documents will constitute the legal, valid, and binding
obligations of Buyer, enforceable against Buyer in accordance with their
respective terms. Buyer has the absolute and unrestricted right, power, and
authority to execute and deliver this Agreement and the Closing Documents and to
perform its obligations under this Agreement and the Closing Documents to which
Buyer is a party.
(b) Neither the execution and delivery of this Agreement by
Buyer nor the consummation or performance of any of the Contemplated
Transactions by Buyer will give any Person the right to prevent, delay, or
otherwise interfere with any of the Contemplated Transactions pursuant to (i)
any provision of Buyer's Organizational Documents; (ii) any resolution adopted
by the board of directors or the stockholders of Buyer; (iii) any Legal
Requirement or Order to which Buyer may be subject; or (iv) any material
Contract to which Buyer is a party or by which Buyer may be bound. Buyer is not
and will not be required to obtain any Consent from any Person in connection
with the execution and delivery of this Agreement or the consummation or
performance of any of the Contemplated Transactions.
4.3 CERTAIN PROCEEDINGS. There is no pending Proceeding that has been
commenced against Buyer and that challenges, or may have the effect of
preventing, making illegal, or otherwise interfering with, any of the
Contemplated Transactions. To Buyer's Knowledge, no such Proceeding has been
Threatened in writing and no event has occurred or circumstance exist that may
give rise to or serve as a basis for the commencement of any Proceeding.
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4.4 BROKERS OR FINDERS. Buyer has not incurred any obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement.
5. INDEMNIFICATION; REMEDIES
5.1 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER. Seller will
indemnify and hold harmless Buyer, stockholders, controlling Persons, and
Affiliates (collectively, the "Seller Indemnified Persons") for, and will pay to
the Seller Indemnified Persons the amount of, any loss, liability, claim,
damage, expense (including reasonable costs of investigation and defense and
reasonable attorneys' fees), whether or not involving a third-party claim
(collectively, "Damages"), arising, directly or indirectly, from or in
connection with:
(a) any material breach of any representation or warranty made
by Seller in this Agreement, the Disclosure Schedule, or any other certificate
or document delivered by Seller pursuant to this Agreement;
(b) any breach by Seller of any covenant or obligation of
Seller in this Agreement or any certificate or document delivered by Seller
pursuant to this Agreement;
(c) the failure of Seller to satisfy and discharge any
Excluded Liabilities, except only the Assumed Liabilities; and
(d) the failure of Seller to comply with bulk sales or other
similar laws in any applicable jurisdiction; provided, however, that any claim
for Damages pursuant to this Section 5.1 must be made on or before the first
anniversary of the Closing Date.
5.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER. Buyer will
indemnify and hold harmless Seller and its stockholders, controlling Persons,
and Affiliates (collectively, the "Buyer Indemnified Persons") for, and will pay
to the Buyer Indemnified Persons the amount of any Damages arising, directly or
indirectly, from or in connection with:
(a) any material breach of any representation or warranty made
by Buyer in this Agreement or in any certificate or document delivered by Buyer
pursuant to this Agreement; and
(b) any breach by Buyer of any covenant or obligation of Buyer
in this Agreement including, without limitation, any failure to pay Assumed
Liabilities after the Closing;
provided, however, that any claim for Damages pursuant to this Section 5.2 must
be made on or before the first anniversary of the Closing.
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5.3 PROCEDURE FOR INDEMNIFICATION -- THIRD PARTY CLAIMS.
(a) Promptly after receipt by an Indemnified Person under
Section 5.1 or 5.2, of notice of any claim against it, such Indemnified Person
will, if a claim is to be made against an Indemnifying Party under such Section,
give notice to the Indemnifying Party of the commencement of such claim, but the
failure to notify the Indemnifying Party will not relieve the Indemnifying Party
of any liability that it may have to any Indemnified Person, except to the
extent that the Indemnifying Party demonstrates that the defense of such action
is prejudiced by the Indemnifying Party's failure to give such notice.
(b) If any claim referred to in Section 5.3(a) is brought
against an Indemnified Person and it gives written notice to the Indemnifying
Party of such claim, the Indemnifying Party may, at its option, assume the
defense of such claim with counsel satisfactory to the Indemnified Person and,
after written notice from the Indemnifying Party to the Indemnified Person of
its election to assume the defense of such claim, the Indemnifying Party will
not, as long as it diligently conducts such defense, be liable to the
Indemnified Person under this Article 5 for any fees of other counsel or any
other expenses with respect to the defense of such claim, subsequently incurred
by the Indemnified Person in connection with the defense of such claim, other
than reasonable costs of investigation. If the Indemnifying Party assumes the
defense of a claim, (i) no compromise or settlement of such claims may be
effected by the Indemnifying Party without the Indemnified Person's consent
unless (A) there is no finding or admission of any violation of Legal
Requirements or any violation of the rights of any Person, and (B) the sole
relief provided is monetary damages that are paid in full by the Indemnifying
Party; and (ii) the Indemnified Person will have no liability with respect to
any compromise or settlement of such claims effected without its consent.
Subject to Section 5.3(c), if notice is given to an Indemnifying Party of any
claim and the Indemnifying Party does not, within twenty days after the
Indemnified Person's notice is given, give notice to the Indemnified Person of
its election to assume the defense of such claim, the Indemnifying Party will be
bound by any determination made in such Proceeding or any compromise or
settlement effected by the Indemnified Person.
(c) Notwithstanding the foregoing, if an Indemnified Person
determines in good faith that there is a reasonable probability that a claim may
adversely affect it or its affiliates other than as a result of monetary damages
for which it would be entitled to indemnification under this Agreement, the
Indemnified Person may, by notice to the Indemnifying Party, assume the
exclusive right to defend, compromise, or settle such claim, but the
Indemnifying Party will not be bound by any determination of a claim so defended
or any compromise or settlement effected or expenses incurred without its
consent (which consent may not be unreasonably withheld).
5.4 PROCEDURE FOR INDEMNIFICATION -- OTHER CLAIMS. A claim for
indemnification for any matter not involving a third-party claim shall be
asserted by written notice to the Indemnifying Party from whom indemnification
is sought.
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5.5 SURVIVAL/LIMITATIONS.
(a) The parties hereto agree that (i) the covenants and
agreements contained in Article 5 and in Article 6 hereto shall survive the
Closing without limitation (unless expressly limited by their terms), and (ii)
all other covenants, agreements, representations and warranties contained herein
shall survive until the first anniversary following the Closing Date.
(b) Seller's obligation to indemnify the Seller Indemnified
Persons for Damages pursuant to Section 5.1 hereof is subject to the following
limitation: in no event shall Seller's obligation to indemnify the Seller
Indemnified Persons exceed ten percent (10%) of the Purchase Price.
6. GENERAL PROVISIONS
6.1 EXPENSES. Except as otherwise expressly provided in this Agreement,
each Party to this Agreement will bear its respective expenses incurred in
connection with the preparation, execution, and performance of this Agreement
and the Contemplated Transactions, including all fees and expenses of agents,
representatives, brokers or finders, counsel, and accountants. Buyer shall pay
any Transfer Taxes, and such Taxes, if any, shall not be considered a liability
of Seller for any purpose, including, without limitation, for purposes of
Section 2.4(b) hereof. In the event of termination of this Agreement, the
obligation of each Party to pay its own expenses will be subject to any rights
of such Party arising from a breach of this Agreement by another Party.
6.2 HEADINGS; CONSTRUCTION. The headings of Sections in this Agreement
are provided for convenience only and will not affect its construction or
interpretation. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
6.3 PUBLIC ANNOUNCEMENTS; CONFIDENTIALITY. Any public announcement or
similar publicity with respect to this Agreement or the Contemplated
Transactions will be issued, if at all, at such time and in such manner as Buyer
and Seller agree in writing, provided that the parties shall reasonably
cooperate in such announcements, and provided further that nothing contained
herein shall prevent any party from at any time furnishing information required
by a Governmental Body.
6.4 AVAILABILITY OF EQUITABLE REMEDIES. The Parties acknowledge and
agree that (i) a breach of the provisions of this Agreement could not adequately
be compensated by money damages, and (ii) any Party shall be entitled, in
addition to any other right or remedy available to it, to an injunction
restraining such breach and to specific performance of this Agreement, and no
bond or other security shall be required in connection therewith.
6.5 NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by certified mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt
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requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
Party may designate by notice to the other Parties):
If to Seller, to:
Xx. Xxxxxx X. Xxxxxxxx III
Xxxxxxxx/Tower Outdoor Sign Joint Venture
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx #000
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxxxxxx & Price, L.L.P.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Buyer, to:
Outdoor Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
and
Xxxxxxx X. Xxxxxx
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, XX, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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6.6 FURTHER ASSURANCES. The Parties agree (i) to furnish upon request
to each other such further information, (ii) to execute and deliver to each
other such other documents, and (iii) to do such other acts and things, all as
the other Party may reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in this Agreement.
6.7 WAIVER. Neither the failure nor any delay by any Party in
exercising any right, power, or privilege under this Agreement or the documents
referred to in this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege.
6.8 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the Parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the Parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the Party to be charged with the amendment.
6.9 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. No Party may
assign any of its rights under this Agreement without the prior consent of the
other Parties except that Buyer may assign any of its rights under this
Agreement to any affiliate of Buyer. This Agreement will apply to, be binding in
all respects upon, and inure to the benefit of the Parties, and their
successors, by liquidation or otherwise, and their permitted assigns. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the Parties to this Agreement any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement.
6.10 ACCOUNTS RECEIVABLE. Buyer agrees to forward to Seller any
payments that Buyer may receive with respect to any accounts receivable of
Seller.
6.11 SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
6.12 POST-CLOSING ACCESS. Buyer agrees that all Books and Records
delivered to Buyer by Seller pursuant to this Agreement shall be maintained open
for inspection by Seller at any time during regular business hours upon
reasonable notice for a period of six (6) years (or for such longer period as
may be required by applicable Legal Requirements) following the Closing and
that, during such period, Seller, at its expense, may make such copies thereof
as it may reasonably desire. Seller agrees that all books and records relating
to the Purchased Assets and retained by Seller shall be maintained open for
inspection by Buyer at any time during regular business hours for a period of
six (6) years (or for such longer period as may be required by applicable Legal
Requirements) following the Closing and that, during such period, Buyer, at its
expense, may make such copies thereof as it may reasonably desire. Nothing
contained in this Section 6.12 shall obligate any Party hereto to make
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available any books and records if to do so would violate the terms of any
Contract or Legal Requirement to which it is a party or to which it or its
assets are subject.
6.13 APPLICABLE LAW. This Agreement shall be governed and controlled as
to validity, enforcement, interpretations, construction, effect and in all other
respects by the internal laws of the State of Texas applicable to contracts made
in that State. The parties hereto agree to submit exclusively to any federal or
state court located in the State of Texas any dispute or controversy arising out
of or relating to this Agreement.
6.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
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IN WITNESS WHEREOF, the Parties have executed, sealed and delivered
this Agreement as of the date first written above.
BUYER:
OUTDOOR SYSTEMS, INC.
By:
----------------------------------
Xxxxxxx X. Xxxxxx
Chairman
SELLER:
XXXXXXXX/TOWER OUTDOOR SIGN JOINT
VENTURE
By: GRTP, Ltd., Manager
By: Xxxxxxxx Texas Properties, L.C.,
General Partner
By:
----------------------------------
Xxxxxx X. Xxxxxxxx, III
Manager
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EXHIBIT A
DEFINITIONS
"ADVERTISING CONTRACTS" -- as defined in Section 2.2(c).
"AFFILIATES" -- when used with reference to a specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Specified
Person. For purposes of this definition of Affiliate, "control" means the
possession, directly or indirectly, of the power to direct or to cause the
direction of management and policies of the Person in question, whether through
the ownership of voting securities or by contract or otherwise.
"ASSUMED LIABILITIES" -- as defined in Section 2.3.
"BEST EFFORTS" -- the efforts that a prudent Person desirous of
achieving a result would use in similar circumstances.
"BOOKS AND RECORDS" -- All of Seller's books and records relating to
the Purchased Assets, including, without limitation, all Site Lease files,
Advertising Contract files, Permit files, maintenance and other records for the
Structures, logs, advertiser, customer and supplier lists.
"BUYER" -- as defined in the first paragraph of this Agreement.
"CLOSING" -- as defined in Section 2.5.
"CLOSING DATE" -- as defined in the first paragraph of this Agreement.
"CLOSING DOCUMENTS" -- as defined in Section 3.2(a).
"CONFIDENTIAL INFORMATION" -- any information concerning the businesses
and affairs of Seller that is not generally available to the public.
"CONSENT" -- any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"CONTEMPLATED TRANSACTIONS" -- all of the transactions contemplated by
this Agreement, including: (a) the purchase of the Purchased Assets by Buyer
from Seller and assignment to and assumption by Buyer of the Assumed
Liabilities, and (b) the performance by Buyer and Seller of their respective
covenants and obligations under this Agreement.
"CONTRACT" -- any agreement, contract, obligation, promise, or
undertaking (whether written or oral and whether express or implied) that is
legally binding.
"DAMAGES" -- as defined in Section 5.1.
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00
"XXXXXXXXXX XXXXXXXX" -- the disclosure schedule, delivered by Seller
to Buyer concurrently with the execution and delivery of this Agreement.
"ENCUMBRANCE" -- any charge, claim, condition, equitable interest,
lien, option, pledge, security interest, right of first refusal, or restriction
of any kind, including any restriction on use, transfer, receipt of income, or
exercise of any other attribute of ownership.
"ENVIRONMENT" -- soil, land surface or subsurface strata, surface
waters, groundwaters, drinking water supply, stream sediments, ambient air
(including indoor air), plant and animal life, and any other environmental
medium or natural resource.
"ENVIRONMENTAL LAW" -- any Legal Requirement pertaining to
environmental discharges, Release, emissions or spills or the manufacture, sale,
processing, handling, transportation, storage or disposal of any Hazardous
Materials, or relating to any environmental processes or condition, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), the Clean Air Act, the Clean Water Act, the Resource
Conservation and Recovery Act ("RCRA"), the Endangered Species Act, the Federal
Insecticide, Fungicide and Rodenticide Act, the Hazardous Materials
Transportation Act, the Surface Mining Control and Reclamation Act, the
Emergency Planning and Community Right to Know Act, the Safe Drinking Water Act,
the Toxic Substances Control Act, the Coastal Zone Management Act, the National
Environmental Policy Act, the Noise Control Act. As used in this Agreement,
Environmental Laws shall mean any of such laws or regulations as the same exist
now or at the Closing Date.
"ERISA" -- the Employee Retirement Income Security Act of 1974 or any
successor law, and regulations and rules issued pursuant to that Act or any
successor law.
"EXCLUDED ASSETS" -- as defined in Section 2.2.
"EXCLUDED LIABILITIES" -- as defined in Section 2.4.
"GOVERNMENTAL AUTHORIZATION" -- any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"GOVERNMENTAL BODY" -- any federal, state, local, municipal, foreign,
or other government; or governmental or quasi-governmental authority of any
nature (including any governmental agency, branch, department, official, or
entity and any court or other tribunal).
"HAZARDOUS MATERIALS" -- any waste or other substance that is listed,
defined, designated, or classified as, or otherwise determined to be, hazardous,
radioactive, or toxic or a pollutant or a contaminant under or pursuant to any
Environmental Law, and specifically including petroleum and all derivatives
thereof or synthetic substitutes therefor and asbestos or asbestos-containing
materials.
"INDEMNIFIED PERSON" -- any of the Seller Indemnified Persons or the
Buyer Indemnified Persons, as the context requires.
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"INDEMNIFYING PARTY" -- the Buyer or the Seller, as the context
requires.
"INTANGIBLE PROPERTY" -- All right, title and interest in and to the
goodwill and other intangible property (except for Seller's corporate or trade
names and trade logos) used in connection with the Purchased Assets, all
licenses, permits and authorizations pertaining to the Purchased Assets or the
right to own and operate the Purchased Assets and all right, title and interest
in and to (i) any intellectual property used in connection with the Purchased
Assets, and (ii) all records and data relating specifically to the Purchased
Assets.
"IRC" -- the Internal Revenue Code of 1986, as amended from time to
time, or any successor law, and regulations issued by the IRS pursuant to the
Internal Revenue Code or any successor law.
"IRS" -- the United States Internal Revenue Service and, to the extent
relevant, the United States Department of the Treasury.
"JOINT VENTURERS" -- Manager and Tower Sign Company, Inc.
"KNOWLEDGE" -- a Person will be deemed to have "Knowledge" of a
particular fact or other matter only if such Person is actually aware of such
fact or other matter without making any independent inquiry or investigation. A
Person (other than an individual) will be deemed to have "Knowledge" of a
particular fact or other matter if any individual who is serving as a director,
officer, partner, executor, or trustee of such Person (or, in the case of
Seller, the Manager) (or in any similar capacity) has Knowledge of such fact or
other matter.
"LEGAL REQUIREMENT" -- any federal, state, local, municipal, foreign,
international, multinational, or other administrative Order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"MANAGER" -- GRTP, Ltd., a Texas limited partnership.
"MATERIAL ADVERSE CHANGE" -- a change that will probably cause a
Material Adverse Effect.
"MATERIAL ADVERSE EFFECT" -- a material adverse effect on the Business,
the Purchased Assets, or the Real Property or operations or conditions
(financial or otherwise) relating thereto, taken as a whole.
"ORDER" -- any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"ORGANIZATIONAL DOCUMENTS" -- (a) the articles or certificate of
incorporation and the bylaws of a corporation; (b) the partnership agreement and
any statement of partnership of a general partnership; (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership; (d) any charter or similar document adopted or filed in connection
with the creation, formation, or organization of a Person; and (e) any amendment
to any of the foregoing.
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"OTHER CONTRACT" -- any Contract (other than a Site Lease or
Advertising Contract) relating to or affecting the Purchased Assets or the
operation thereof (i) under which Seller has or may acquire any rights, (ii)
under which Seller has or may become subject to any obligation or liability, or
(iii) by which Seller or any of the Purchased Assets is or may become bound.
"PARTY" -- as defined in the first paragraph of this Agreement.
"PERMITS" -- as defined in Section 2.2(d).
"PERMITTED LIENS" -- liens for taxes not yet delinquent.
"PERSON" -- any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"PROCEEDING" -- any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"PURCHASE PRICE" -- as defined in Section 2.5.
"PURCHASED ASSETS" -- as defined in Section 2.2.
"RELEASE" -- any spilling, leaking, emitting, discharging, depositing,
escaping, leaching, dumping, or other releasing into the Environment, whether
intentional or unintentional.
"REPRESENTATIVE" -- with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"SECURITY INTEREST" -- any mortgage, pledge, lien, encumbrance, charge
or other security interest or option or right of any third party with respect
thereto.
"SELLER" -- as defined in the first paragraph of this Agreement.
"SITE LEASES" -- as defined in Section 2.2(b).
"STRUCTURES" -- as defined in Section 2.2(a).
"TAX" -- shall mean all tax (including income tax, capital gains tax,
value added tax, sales tax, property tax, transfer tax or intangibles tax), levy
assessment, tariff, duty, deficiency or other fee and any related charge or
amount (including fine, penalty and interest) imposed, assessed or collected by
or under the authority of any Governmental Body.
"TAX RETURN" -- any return (including any information return), report,
statement, schedule, notice, form, or other document or information filed with
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or submitted to, or required to be filed with or submitted to, any Governmental
Body in connection with the determination, assessment, collection, or payment of
any Tax or in connection with the administration, implementation, or enforcement
of or compliance with any Legal Requirement relating to any Tax.
"TRANSFER TAXES" -- any sales, use or transfer taxes arising from the
transfer of the Purchased Assets from Seller to Buyer hereunder.
"THREATENED" -- a claim, Proceeding or dispute will be deemed to have
been "THREATENED" if any demand or statement has been made or any notice has
been given that would lead a prudent Person to conclude that such a claim,
Proceeding or dispute is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
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SCHEDULE 2.2(x)
EXCLUDED ASSETS
1. Cash and Accounts Receivable
