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Exhibit 99.4
ASSET PURCHASE AGREEMENT
dated as of February 24, 1997
by and between
OUTDOOR SYSTEMS, INC.
AND
GRTP, LTD.
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TABLE OF CONTENTS
1. DEFINITIONS...................................................... 1
2. PURCHASE AND SALE OF THE ASSETS; CLOSING......................... 1
2.1 Agreement to Purchase and Sell.......................... 1
2.2 Purchased Assets........................................ 1
2.3 Agreement to Assume Certain Liabilities................. 2
2.4 Excluded Liabilities.................................... 3
2.5 Closing................................................. 3
2.6 Purchase Price.......................................... 3
2.7 Transactions at the Closing............................. 4
2.8 Third Party Consents.................................... 4
2.9 Joint Venture Assets.................................... 5
3. REPRESENTATIONS AND WARRANTIES OF SELLER......................... 5
3.1 Organization and Good Standing.......................... 5
3.2 Authority; No Conflict.................................. 5
3.3 Solvency................................................ 6
3.4 Books and Records....................................... 6
3.5 Structures.............................................. 6
3.6 Permits................................................. 6
3.7 Site Leases and Advertising Contracts................... 6
3.8 Real Property........................................... 7
3.9 Title, Encumbrances..................................... 7
3.11 Taxes................................................... 7
3.12 Compliance with Legal Requirements...................... 8
3.13 Legal Proceedings; Orders............................... 8
3.14 Other Contracts......................................... 8
3.15 Insurance............................................... 8
3.16 Environmental Matters................................... 8
3.17 Intangible Property..................................... 9
3.18 Relationships with Affiliates........................... 9
3.19 Brokers or Finders...................................... 9
3.20 Employee Benefit Matters................................ 9
3.21 HSR Compliance.......................................... 10
3.22 Seller's Formation...................................... 10
3.23 Disclosure.............................................. 11
4. REPRESENTATIONS AND WARRANTIES OF BUYER.......................... 11
4.1 Organization and Good Standing.......................... 11
4.2 Authority; No Conflict.................................. 11
4.3 Certain Proceedings..................................... 11
4.4 Brokers or Finders...................................... 12
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5. COVENANTS OF SELLER................................................ 12
5.1 Access and Investigation.................................. 12
5.2 Due Diligence............................................. 12
5.3 Operation of the Purchased Assets......................... 12
5.4 Negative Covenant......................................... 12
5.5 Required Approvals........................................ 12
5.6 Notification.............................................. 13
5.7 No Negotiation............................................ 13
5.8 Tax Clearance............................................. 13
5.9 Leases.................................................... 13
6. COVENANTS OF BUYER................................................. 13
6.1 Required Approvals........................................ 13
6.2 Best Efforts.............................................. 13
6.3 Imprints.................................................. 13
6.4 Notification.............................................. 14
6.5 Office Lease.............................................. 14
6.6 Transfer Taxes............................................ 14
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE................ 14
7.1 Accuracy of Representations............................... 14
7.2 Seller's Performance...................................... 14
7.3 Consents.................................................. 14
7.4 Additional Documents...................................... 15
7.5 No Proceedings............................................ 15
7.6 No Prohibition............................................ 15
7.7 No Material Adverse Change................................ 15
7.8 Due Diligence............................................. 15
7.9 Bank Lien................................................. 15
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE............... 15
8.1 Accuracy of Representations............................... 15
8.2 Buyer's Performance....................................... 16
8.3 Additional Documents...................................... 16
8.4 No Proceedings............................................ 16
8.5 No Prohibition............................................ 16
9. TERMINATION........................................................ 16
9.1 Termination Events........................................ 16
9.2 Effect of Termination..................................... 17
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10. INDEMNIFICATION; REMEDIES........................................ 17
10.1 Indemnification and Payment of Damages by Seller........ 17
10.2 Indemnification and Payment of Damages by Buyer......... 17
10.3 Procedure for Indemnification -- Third Party Claims..... 18
10.4 Procedure for Indemnification -- Other Claims........... 18
10.5 Survival/Limitations.................................... 19
11. GENERAL PROVISIONS............................................... 19
11.1 Expenses................................................ 19
11.2 Headings; Construction.................................. 19
11.3 Public Announcements.................................... 19
11.4 Availability of Equitable Remedies...................... 19
11.5 Notices................................................. 20
11.6 Further Assurances...................................... 21
11.7 Waiver.................................................. 21
11.8 Entire Agreement and Modification....................... 21
11.9 Assignments, Successors, and No Third-Party Rights...... 21
11.10 Accounts Receivable..................................... 21
11.11 Severability............................................ 21
11.12 Risk of Loss............................................ 21
11.13 Post-Closing Access..................................... 22
11.14 Applicable Law.......................................... 22
11.15 Counterparts............................................ 22
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EXHIBITS
Exhibit A - Definitions
Exhibit B - Assignment of Contracts
Exhibit C - Assignment of Permits
Exhibit D - Assignment of Site Leases
Exhibit E - Xxxx of Sale, Assignment and Assumption Agreement
Exhibit F - Leases
SCHEDULES
Schedule 2.2(a) - Structures/Permits/Management Agreements
Schedule 2.2(b) - Site Leases
Schedule 2.2(d) - Joint Venture Agreements
Schedule 2.2(x) - Excluded Assets
Schedule 2.3 - Assumed Liabilities
Schedule 2.9 - Purchase of Joint Venture Assets
DISCLOSURE SCHEDULE
Part 3.2(b) Part 3.10
Part 3.2(c) Part 3.11(a)
Part 3.5 Part 3.13
Part 3.6 Part 3.14
Part 3.7 Part 3.16
Part 3.9(b) Part 3.18
Part 3.20
Part 3.21
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is entered into as of
February 24, 1997, by and between OUTDOOR SYSTEMS, INC., a Delaware corporation
("Buyer"), and GRTP, LTD., a Texas limited partnership ("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 certain 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 agrees to grant, sell, assign, transfer, convey
and deliver all right, title and interest in and to the Purchased Assets, free
and clear of any liens, title claims, Encumbrances or Security Interests (except
as otherwise specifically permitted pursuant to the provisions of this
Agreement), and Buyer hereby agrees to buy and acquire the Purchased Assets from
Seller, and to assume 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");
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(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 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 rights and interests in joint venture arrangements,
however organized, engaged in the outdoor advertising business ("Joint Venture
Agreements"), including, without limitation, those Joint Venture Agreements
listed on Schedule 2.2 (d);
(e) All rights and interests in agreements to manage
structures on behalf of third parties ("Management Agreements"), including,
without limitation, those listed on Schedule 2.2(b);
(f) The Office Lease;
(g) All pertinent Books and Records;
(h) All tangible personal property, including furniture,
equipment, computer hardware and software, owned by Seller and used in the
operation of the Business, save and except those items listed on Schedule
2.2(x);
(i) All Intangible Property used in connection with the
Business except the trade name "Xxxxxxxx"; and
(j) 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. At the Closing, Buyer
shall assume and agree to discharge and perform all liabilities and obligations
that are set forth on Schedule 2.3 or arise or are attributable to events
occurring on or after the Closing Date pursuant to the Site Leases, the
Advertising Contracts, the Joint Venture Agreements, the Management Agreements
and the Office Lease (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.
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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.
(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 CLOSING. The purchase and sale of the Purchased Assets (the
"Closing") provided for in this Agreement will take place at the offices of
Xxxxxxxxxxx & Price, L.L.P., in Dallas, Texas on February 28, 1997 or such later
time and place as the Parties may agree. The effective time of the Closing shall
be 11:59 p.m., Eastern Standard Time, on the Closing Date.
2.6 PURCHASE PRICE. In consideration for the Purchased Assets, Buyer
shall assume the Assumed Liabilities, and pay an amount (the "Purchase Price")
equal to Thirty Million Fifty Thousand Dollars ($30,050,000). 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. Percentage rents shall be prorated as of the Closing Date. Any
prorations not determined at the Closing shall be prorated on the basis of the
most current information available at Closing. On the Closing Date, Seller shall
provide to Buyer a list of items and the prorations required by this Section
2.6(a) ("Preliminary Adjustment") and the Purchase Price shall be adjusted
accordingly. Seller agree to furnish Buyer with any documents or records in
Seller's possession that may be needed for Buyer to confirm the adjustment and
prorations in this Section 2.6(a).
(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 2.6, shall be
made on the basis of the Closing Date Adjustment.
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(c) The parties agree to cooperate with each other in
determining and reaching an agreement in writing on the allocation of the
Purchase Price among the Purchased Assets on or prior to Closing.
2.7 TRANSACTIONS AT THE CLOSING. The following transactions shall take
place at the Closing:
(a) Seller shall enter into (as applicable) (and in the case
of certain Leases, Xxxxxxxx) and deliver to Buyer: (i) the Xxxx of Sale, (ii)
the Assignment of Contracts, (iii) the Assignment of Site Leases, (iv) the
Assignment of Permits, (v) the Leases, (vi) all applicable Tax Clearances, and
(vii) other instruments of transfer, evidence of consent and all other related
documents as may be necessary to evidence or perfect the sale, assignment,
transfer, and conveyance of good title to all of the Purchased Assets, in each
case free and clear of all Security Interests and Encumbrances. Seller shall
also deliver to Buyer all Books and Records, including the originals of the
Advertising Contracts and Site Leases.
(b) Buyer shall deliver to Seller the Purchase Price, as
adjusted pursuant to Section 2.6, by wire transfer of immediately available
funds.
(c) Buyer shall enter into (as applicable) and deliver to
Seller: (i) the Xxxx of Sale, (ii) the Assignment of Contracts, (iii) the
Assignment of Site Leases, (iv) the Assignment of Permits, (v) the Leases, and
(vi) other assumption agreements, instruments and other documents as may be
necessary to evidence the assumption by Buyer of the Assumed Liabilities.
(d) The Parties shall also deliver to each other the
agreements, instruments, opinions, certificates, and other documents referred to
in this Agreement.
2.8 THIRD PARTY CONSENTS. To the extent that Seller's rights under any
Advertising Contract, Site Lease or other interest in the Purchased Assets may
not be assigned without the consent of a third party and such consent has not
been obtained, this Agreement shall not constitute an agreement to assign the
same if an attempted assignment would constitute a breach thereof or be
unlawful, and Seller and Buyer, to the maximum extent permitted by law and any
terms of or limitations relating to such asset, shall use their Best Efforts to
obtain for Buyer the benefits thereunder, and shall cooperate to the maximum
extent permitted by law and any terms of or limitations relating to such asset
in any reasonable arrangement designed to provide such benefits to Buyer,
including any sublease or subcontract or similar arrangement, and if Buyer has
obtained such benefits, Buyer shall discharge Seller's obligations thereunder
arising from and after the Closing Date, except for those obligations arising
because of Seller's breach.
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2.9 JOINT VENTURE ASSETS. The parties agree that:
(a) in lieu of acquiring Seller's interest in the Joint
Venture Agreements, Buyer, at its option, may purchase at the Closing all of the
assets of each underlying joint venture for the purchase prices set forth on
Schedule 2.9 and upon such other terms and conditions mutually satisfactory to
the parties thereto; and
(b) in such event, the Joint Venture Agreements shall be
excluded from the Purchased Assets and Assumed Other Contracts, and the Purchase
Price shall be adjusted downward as set forth on Schedule 2.9.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING. Seller is a limited partnership and
the General Partner is a limited liability company, each of which is duly
organized, validly existing and in good standing under the laws of the State of
Texas. Seller's predecessor is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware. 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. Each of Seller, the General Partner and Seller's
predecessor 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) This Agreement constitutes the legal, valid, and binding
obligation of Seller, enforceable against it in accordance with its terms. Upon
the execution and delivery by Seller of any documents to be executed at Closing
pursuant to this Agreement (collectively, the "Closing Documents"), such Closing
Documents will constitute the legal, valid, and binding obligations of Seller,
as applicable, 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 Closing Documents to which it is a party and to perform
its obligations thereunder. The execution, delivery and performance of this
Agreement has been specifically authorized by the general partner and sole
limited partner of Seller. Xxxxxxxx Outdoor, Inc. is the sole limited partner of
Seller and Xxxxxxxx owns all of the outstanding capital stock of Xxxxxxxx
Outdoor, Inc. Xxxxxxxx Texas Properties, LLC is the sole general partner of
Seller.
(b) Except as set forth in Part 3.2(b) of the Disclosure
Schedule, 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
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any Order to which Seller, the Business or any of the
Purchased Assets or Real Property may be subject; (C) to Seller's
Knowledge, any Governmental Authorization held by Seller or that
otherwise relates to the Business, the Purchased Assets or Real
Property; 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 Real
Property; or result in the imposition or creation of any Encumbrance
upon or with respect to any of the Purchased Assets or Real Property.
(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 or those of Seller's predecessor. Before giving effect to the
transactions contemplated hereby, Seller and Seller's predecessor have been
paying its debts as they become due in the Ordinary Course of Business and,
after giving effect to the transactions contemplated hereby, each 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 and Seller's predecessor 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. Schedule 2.2(a) contains a complete and correct
description of the ownership of the Structures. Except as set forth in Part 3.5
of the Disclosure Schedule, 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. Except as set forth in Part 3.6 of the Disclosure
Schedule, the Permits constitute all material licenses, permits, registrations
and approvals necessary to operate the Business. Seller is, and Seller's
predecessor was, 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 and Seller's predecessor have not received written notice
that any Governmental Body issuing any Permit intends to cancel, terminate,
modify or amend any Permit.
3.7 SITE LEASES AND ADVERTISING CONTRACTS. Seller has delivered to
Buyer true and complete copies of the Advertising Contracts and the Site Leases.
Except as set forth on Part 3.7 of the Disclosure Schedule, 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
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force and effect, and are binding upon the parties thereto. Except as set forth
in Part 3.7 of the Disclosure Schedule, to the Knowledge of Seller, (x) no
default by Seller or any other party (including Seller's predecessor) 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 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 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 Seller's predecessor has received any written notice of default,
termination or non-renewal under any Site Lease or Advertising Contract.
3.8 REAL PROPERTY. Seller has indefeasible record title to the Real
Property, such title being a fee interest in the Real Property. Neither Seller
nor Seller's predecessor has granted or agreed to grant to any Person (except to
Buyer pursuant to the Leases) any option, agreement or other right to purchase,
sell, lease or occupy any of the Real Property.
3.9 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 and the Bank Lien.
(b) Except as set forth in Part 3.9(b) of the Disclosure
Schedule, none of the Structures, Site Leases or the Real Property 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 or the lease of
the Real Property to Buyer pursuant to the Leases. Neither Seller nor Seller's
predecessor 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 or the Real
Property.
3.10 NO UNDISCLOSED LIABILITIES. Except as set forth in Part 3.10 of
the Disclosure Schedule, neither Seller nor Seller's predecessor has any
material liabilities or obligations of any nature relating to the Purchased
Assets.
3.11 TAXES. With respect to the Purchased Assets and the Real Property:
(a) Seller and Seller's predecessor 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 Seller's predecessor 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 Seller's predecessor, except such Taxes, if
any, as are listed in Part 3.11(a) of the Disclosure Schedule and are being
contested in good faith.
(b) No unpaid Taxes create an Encumbrance (other than
Permitted Liens) on the Purchased Assets or the Real Property.
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(c) Buyer shall not be liable for any Taxes of Seller or
Seller's predecessor as a result of the Contemplated Transactions.
3.12 COMPLIANCE WITH LEGAL REQUIREMENTS. Seller and Seller's
predecessor have complied with all Legal Requirements applicable to their
respective 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.
3.13 LEGAL PROCEEDINGS; ORDERS. Except as set forth in Part 3.13 of the
Disclosure Schedule, there is no Proceeding pending or, to the Knowledge of
Seller, Threatened against Seller or Seller's predecessor or affecting any of
the Purchased Assets or the Real Property, and there is no Order to which
Seller, Seller's predecessor, the Purchased Assets or the Real Property is
subject.
3.14 OTHER CONTRACTS Seller is not a party to or bound by any Other
Contract, except for the Office Lease, the Joint Venture Agreements, the
Management Agreements and as disclosed in Part 3.14 of the Disclosure Schedule.
Seller has delivered to Buyer true and complete copies of the Assumed Other
Contracts. The Assumed Other Contracts are in full force and effect, and are
binding upon the parties thereto. Except as set forth in Part 3.14 of the
Disclosure Schedule, to the Knowledge of Seller, (x) no default by Seller or any
other party (including Seller's predecessor) has occurred under the Assumed
Other 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 thereunder or would entitle any
other party to terminate an Assumed Other Contract, to make a claim or set-off
against Seller or otherwise to amend such Assumed Other Contract or prevent such
Assumed Other Contract from being renewed in accordance with its terms. Neither
Seller nor Seller's predecessor has received any written notice of default,
termination or non-renewal under any Assumed Other Contract.
3.15 INSURANCE. Seller maintains in full force and effect policies of
fire and other casualty, liability, title and other forms of insurance covering
the Purchased Assets, the Real Property and the Business, and the operation
thereof, of the types and with the amounts of coverage as are consistent with
industry standards for outdoor advertising businesses comparable to the
Business.
3.16 ENVIRONMENTAL MATTERS. Except as set forth in Part 3.16 of the
Disclosure Schedule, with respect to the Purchased Assets and the Real Property
and the use or operation thereof: to Seller's Knowledge, (i) Seller and Seller's
predecessor are, and have been, in material compliance with all Environmental
Laws; (ii) Seller and Seller's predecessor have 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, including the Real Property, or in areas for which Seller or Seller's
predecessor would have responsibility under Environmental Laws; (iv) neither
Seller nor Seller's predecessor has 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,
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tests, or monitoring possessed by Seller or Seller's predecessor pertaining to
Hazardous Materials in, on, or under the properties included in the Purchased
Assets or the Real Property.
3.17 INTANGIBLE PROPERTY. Seller uses, and Seller's predecessor used,
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.
3.18 RELATIONSHIPS WITH AFFILIATES. Except as set forth on Part 3.18 of
the Disclosure Schedule, Seller is not, and Seller's predecessor has not been, 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, Seller's predecessor or any of their respective 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 or Seller's
predecessor) that has business dealings or a material financial interest in any
transaction with Seller or Seller's predecessor involving the Purchased Assets,
the Real Property or the Business.
3.19 BROKERS OR FINDERS. Neither Seller nor Seller's predecessor 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.
3.20 EMPLOYEE BENEFIT MATTERS. Except as disclosed on Part 3.20 of the
Disclosure Schedule, with respect to each of Seller and Seller's predecessor:
(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.
(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 3.20 the terms "Seller" and "Seller's predecessor"
shall be deemed to include any other corporation, trade, business or other
entity, other than Seller or Seller's predecessor, which would together with
Seller or Seller's predecessor, respectively, now or in the past, constitute a
single employer within the meaning of Section 414 of the IRC.
3.21 HSR COMPLIANCE.
(a) None of the Seller, its Partners nor Xxxxxxxx is a person
(or included in a person), that has total assets of $10 million or more or
annual net sales of $10 million or more, within the meaning of, and all as
determined in accordance with, the HSR Act. Seller has consulted with its
counsel in determining and making such representation.
(b) Attached hereto as Part 3.21 of the Disclosure Schedules
as the following financial statements (collectively, "Financial Statements"):
(a) unaudited financial statements for the fiscal year ended December 31, 1996
for the Seller's predecessor and (b) the most recently regularly prepared
balance sheet of the Seller's
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predecessor, being the unaudited balance sheet of the Seller's predecessor as of
and for the one month ended January 31, 1997. The Financial Statements have been
prepared in accordance with the accounting principles normally used by the
Seller's predecessor on a consistent basis throughout the periods covered
thereby. Seller does not have its own balance sheet or an annual financial
statement.
3.22 SELLER'S FORMATION.
(a) Seller was formed on February 19, 1997 (the "Formation
Date"). Pursuant to the Agreement of Limited Partnership dated February 19, 1997
between the General Partner and the Limited Partner (the "Acquisition
Agreement"), Seller acquired all of the assets and liabilities of Seller's
predecessor related to the Business (the "Acquisition"). Seller has heretofore
delivered to Buyer accurate and complete copy of the Acquisition Agreement.
Prior to the Acquisition, Seller had conducted no business and incurred no
liabilities, other than in connection with its formation, and all such
liabilities have been paid or discharged.
(b) The execution and delivery of the Acquisition Agreement
and the consummation of the transactions contemplated thereby (including,
without limitation, the Acquisition) were duly and validly authorized by all
necessary action on the part of the parties thereto. The Acquisition Agreement
was duly and validly executed by each of the parties thereto and constituted the
valid and binding agreement of each party thereto, enforceable against each such
party in accordance with its terms.
(c) Neither the execution and delivery of the Acquisition
Agreement by the parties thereto nor the consummation or performance of any of
the transactions contemplated thereby by the parties thereto:
(i) conflicted with, violated or resulted in a breach
of (A) any provision of the Organizational Documents of Seller or
Seller's predecessor; (B) to Seller's Knowledge, any Legal Requirement
or any Order to which Seller, Seller's predecessor, the Business or any
of the Purchased Assets or Real Property may have been subject; (C) to
Seller's Knowledge, any Governmental Authorization held by Seller or
Seller's predecessor or that otherwise relates to the Business, the
Purchased Assets or Real Property; or (D) any material Contract to
which Seller or Seller's predecessor was a party or by which Seller,
Seller's predecessor or the Purchased Assets may have been bound; or
(ii) contravened, conflicted with, or resulted in a
violation or breach of any provision of, or gave 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 or Seller's predecessor in or to the
Purchased Assets or Real Property; or resulted in the imposition or
creation of any Encumbrance upon or with respect to any of the
Purchased Assets or Real Property.
(d) All notices and Consents required from any Person in
connection with the execution and delivery of the Acquisition Agreement or the
consummation or performance of any of the transactions contemplated thereby were
given or obtained as required.
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3.23 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. Except as set forth on Part 4.3 of the Disclosure
Schedule, 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.
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. COVENANTS OF SELLER
5.1 ACCESS AND INVESTIGATION. Between the date of this Agreement and
the Closing Date, Seller will, and will cause its Representatives to, afford
Buyer and its Representatives reasonable
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access during normal business hours to Seller's personnel, properties, Books and
Records, and other documents and data relating to the Purchased Assets and the
Business, and furnish Buyer and its Representatives with copies of the same.
5.2 DUE DILIGENCE. Buyer shall have the right, and Seller shall afford
access to Buyer and its Representatives, at all reasonable times upon advance
notice to perform due diligence on the Purchased Assets and the Business from
the date hereof through and including the date that occurs seven (7) calendar
days after the date hereof (the "Due Diligence Period").
5.3 OPERATION OF THE PURCHASED ASSETS. Between the date of this
Agreement and the Closing Date, Seller will:
(a) operate the Business only in the Ordinary Course of
Business;
(b) use its Best Efforts to maintain the Purchased Assets, and
maintain the relations and good will with advertisers, landlords and others
associated with the operation of the Business; and
(c) confer with Buyer concerning any new Advertising Contract,
Site Lease or Other Contract which involves a term of more than three (3) months
or payment of amounts in excess of $50,000.
5.4 NEGATIVE COVENANT. Except as otherwise expressly permitted by this
Agreement, between the date of this Agreement and the Closing Date, Seller will
operate the Business consistent in all material respects with past practice,
except as otherwise provided in this Agreement.
5.5 REQUIRED APPROVALS AND CONSENTS. As promptly as practicable after
the date of this Agreement, Seller will make all filings required by Legal
Requirements to be made by it in order to consummate the Contemplated
Transactions and use its Best Efforts to obtain such of the Consents identified
in Section 3.2(c) for the transfer of the Purchased Assets.
5.6 NOTIFICATION. Between the date of this Agreement and the Closing
Date, Seller will promptly notify Buyer in writing if Seller become aware of any
fact or condition that causes or constitutes a material breach of any of
Seller's representations and warranties as of the date of this Agreement, or if
Seller become aware of the occurrence after the date of this Agreement of any
fact or condition that would (except as expressly contemplated by this
Agreement) cause or constitute a material breach of any such representation or
warranty had such representation or warranty been made as of the time of
occurrence or discovery of such fact or condition. During the same period,
Seller will promptly notify Buyer of the occurrence of any material breach of
any covenant of Seller in this Section 5 or of the occurrence of any event that
may make the satisfaction of the conditions in Section 7 impossible or unlikely.
5.7 NO NEGOTIATION. Until the earlier of March 31, 1997 or such time,
if any, as this Agreement is terminated pursuant to Section 9, neither Seller
nor any Affiliate will, nor will it permit its Representatives to, directly or
indirectly solicit, initiate, or encourage any inquiries or proposals from,
discuss or negotiate with, provide any non-public information to, or consider
the merits of any
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unsolicited inquiries or proposals from, any Person (other than Buyer or its
Representatives) relating to or affecting any transaction involving the sale of
the Purchased Assets.
5.8 TAX CLEARANCE. Seller shall obtain all certificates of clearances
for Taxes ("Tax Clearances"), if any, required by the State of Texas and
applicable local jurisdictions, or, if such Tax Clearances are required but not
available at the Closing, certificates from the State of Texas and such local
jurisdictions certifying as to the payment by or on behalf of Seller of all
Taxes due on or prior to a date not more than thirty (30) days prior to the
Closing Date (it being agreed and understood that, notwithstanding the
foregoing, if any Tax Clearances are not obtained prior to the Closing, Seller
shall obtain such Tax Clearances after the Closing and shall be responsible for,
and shall discharge in full, all liabilities and obligations therefor).
5.9 LEASES. Seller agrees to enter into, or to cause Xxxxxxxx to enter
into, a Lease with Buyer for each location listed on Exhibit F for a term of 25
years.
6. COVENANTS OF BUYER
6.1 REQUIRED APPROVALS. As promptly as practicable after the date of
this Agreement, Buyer will make all filings required by Legal Requirements to be
made by it to consummate the Contemplated Transactions.
6.2 BEST EFFORTS. Between the date of this Agreement and the Closing
Date, Buyer will use its Best Efforts to cause the conditions in Sections 7 and
8 to be satisfied; provided that this Agreement will not require Buyer to
dispose of or make any change in any portion of its business or to incur any
other burden to obtain a Governmental Authorization.
6.3 IMPRINTS. No later than 150 days after the Closing, Buyer shall
remove from all Structures included in the Purchased Assets all imprints used by
Seller containing Seller's trade name; provided, however, until the earlier of
(i) such removal or (ii) the expiration of such 150- day period, Buyer may
display Seller's trade names on such Structures.
6.4 NOTIFICATION. Between the date of this Agreement and the Closing
Date, Buyer will promptly notify Seller in writing if Buyer becomes aware of any
fact or condition that causes or constitutes a breach of any of Buyer's
representations and warranties as of the date of this Agreement, or if Buyer
becomes aware of the occurrence after the date of this Agreement of any fact or
condition that would (except as expressly contemplated by this Agreement) cause
or constitute a breach of any such representation or warranty had such
representation or warranty been made as of the time of occurrence or discovery
of such fact or condition. During the same period, Buyer will promptly notify
Seller of the occurrence of any breach of any covenant of Buyer in this Section
6 or of the occurrence of any event that may make the satisfaction of the
conditions in Section 8 impossible or unlikely.
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6.5 OFFICE LEASE. Xxxxxxxx, Xxxxx Xxxxxxxx and Xxxxx Xxxxxxx shall be
permitted to continue to use their current office space and supporting office
equipment (such as copiers, fax machine, etc) until the expiration of the
current term of the Office Lease; provided, however, that such use is for office
purposes and that such use does not interfere with Buyer's use of the remainder
of the premises.
6.6 TRANSFER TAXES. Buyer agrees to 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).
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Purchased Assets and to take the
other actions required to be taken by Buyer at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Buyer, in whole or in part):
7.1 ACCURACY OF REPRESENTATIONS. Seller's representations and
warranties in this Agreement must have been accurate as of the date of this
Agreement, and must be accurate in all material respects as of the Closing Date
as if made on the Closing Date, and Buyer shall have received a certificate of
an executive officer of Seller, dated as of the Closing Date, as to such
accuracy.
7.2 SELLER'S PERFORMANCE. The covenants and obligations that Seller is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been performed and complied with in all material respects,
and Buyer shall have received a certificate of an executive officer of Seller,
dated as of the Closing Date, as to such compliance.
7.3 CONSENTS. Each of the Consents required pursuant to Section 3.2 (c)
must have been obtained and must be in full force and effect. These shall
include, without limitation, the consents of Seller's joint venture partners
under the Joint Venture Agreements, and the joint venture partners' waivers of
any rights of first refusal, with respect to the Contemplated Transactions.
7.4 ADDITIONAL DOCUMENTS. Each of the following documents must have
been delivered to Buyer:
(a) an opinion of Xxxxxxxxxxx & Price, L.L.P dated the Closing
Date, in form and substance reasonably satisfactory to Buyer;
(b) the deliveries required from Seller in Section 2.7; and
(c) such other documents as Buyer may reasonably request for
the purpose of (i) evidencing the satisfaction of any condition referred to in
this Section 7, or (ii) otherwise facilitating the consummation or performance
of any of the Contemplated Transactions.
7.5 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced and pending or Threatened by any Person or any Proceeding
(i) involving any challenge to, or seeking damages or other relief in connection
with, any of the Contemplated Transactions,
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(ii) that prevents, makes illegal, or otherwise materially interferes with any
of the Contemplated Transactions or seeks to do any of the foregoing, or (iii)
that involves any material claim against Seller.
7.6 NO PROHIBITION. There must not be in effect any Legal Requirement
or any injunction or other Order that prohibits or restricts the consummation of
the Contemplated Transactions, including, without limitation, HSR Act
compliance.
7.7 NO MATERIAL ADVERSE CHANGE. There shall not have been a Material
Adverse Change since the date hereof.
7.8 DUE DILIGENCE. Buyer's due diligence investigation and review of
the Business with respect to the Purchased Assets, the Real Property, the
Business and the Assumed Liabilities shall not reveal any fact or circumstance
not disclosed to Seller in the Disclosure Schedule prior to the execution hereof
which in Buyer's judgment, exercised in good faith, would cause or be likely to
cause a Material Adverse Change to the value of the Purchased Assets.
7.9 BANK LIEN. The Bank Lien and any liens other than Permitted Liens
shall have been released.
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
Seller's obligation to sell the Purchased Assets and Seller's
obligations to take the other actions required to be taken by Seller at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Seller, in whole or in
part):
8.1 ACCURACY OF REPRESENTATIONS. Buyer's representations and warranties
in this Agreement must have been accurate as of the date of this Agreement and
must be accurate in all material respects as of the Closing Date as if made on
the Closing Date, and Seller shall have received a certificate of an executive
officer of Buyer, dated as of the Closing Date, as to such accuracy.
8.2 BUYER'S PERFORMANCE. The covenants and obligations that Buyer is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been performed and complied with in all material respects,
and Seller shall have received a certificate of an executive officer of Buyer,
dated as of the Closing Date, as to such compliance.
8.3 ADDITIONAL DOCUMENTS. Buyer must have caused the following
documents to be delivered to Seller:
(a) an opinion of Powell, Goldstein, Xxxxxx & Xxxxxx, dated
the Closing Date, in form and substance reasonably acceptable to Seller;
(b) the deliveries required from Buyer in Section 2.7; and
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(c) such other documents as Seller may reasonably request for
the purpose of (i) evidencing the satisfaction of any condition referred to in
this Section 8, or (ii) otherwise facilitating the consummation of any of the
Contemplated Transactions.
8.4 NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced and pending or Threatened any Proceeding (i) involving any
challenge to, or seeking damages or other relief in connection with, any of the
Contemplated Transactions, or (ii) that prevents, makes illegal, or otherwise
materially interferes with any of the Contemplated Transactions or seeks to do
any of the foregoing.
8.5 NO PROHIBITION. There must not be in effect any Legal Requirement
or any injunction or other Order that prohibits or restricts the consummation of
the Contemplated Transactions.
9. TERMINATION
9.1 TERMINATION EVENTS. This Agreement may, by notice given prior to or
at the Closing, be terminated:
(a) by mutual consent of Buyer and Seller;
(b) (i) by Buyer if any of the conditions in Section 7 has not
been satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through the failure of Buyer to comply with
its obligations under this Agreement) and Buyer has not waived such condition on
or before the Closing Date; or (ii) by Seller, if any of the conditions in
Section 8 has not been satisfied as of the Closing Date or if satisfaction of
such a condition is or becomes impossible (other than through the failure of
Seller to comply with its obligations under this Agreement) and Seller has not
waived such condition on or before the Closing Date; or
(c) by Buyer, on the one hand, or Seller, on the other hand,
if the Closing has not occurred (other than through the failure of the other
Party seeking to terminate this Agreement to comply fully with its obligations
under this Agreement) on or before March 31, 1997, or such later date as the
Parties may agree upon.
9.2 EFFECT OF TERMINATION. Each Party's right of termination under
Section 9.1 is in addition to any other rights it may have under this Agreement.
If this Agreement is terminated pursuant to Section 9.1, all further obligations
of the Parties under this Agreement will terminate, except that the obligations
in Sections 11.1, 11.3 and 11.4 will survive; provided, however, that if this
Agreement is terminated by a Party because of the breach of the Agreement by the
other Party or because one or more of the conditions to the terminating Party's
obligations under this Agreement is not satisfied as a result of the other
Party's failure to comply with its obligations under this Agreement, the
terminating Party's right to pursue all legal and equitable remedies, separately
or simultaneously, (including specific performance) will survive such
termination unimpaired.
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10. INDEMNIFICATION; REMEDIES
10.1 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 10.1
must be made on or before the first anniversary of the Closing Date.
10.2 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.
10.3 PROCEDURE FOR INDEMNIFICATION -- THIRD PARTY CLAIMS.
(a) Promptly after receipt by an Indemnified Person under
Section 10.1 or 10.2, 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.
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(b) If any claim referred to in Section 10.3(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 10 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 10.3(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).
10.4 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.
10.5 SURVIVAL/LIMITATIONS.
(a) The parties hereto agree that (i) the covenants and
agreements contained in Sections 10.1 and 10.2 and in Article 11 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 10.1 hereof is subject to the following
limitation: in no event shall Seller's obligation to indemnify the Seller
Indemnified Persons exceed Three Million Dollars ($3,000,000).
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11. GENERAL PROVISIONS
11.1 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. 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.
11.2 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.
11.3 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. Unless consented to by Buyer and Seller in advance or
required by Legal Requirements, prior to the Closing, each Party shall, and
shall cause their respective Representatives to, keep this Agreement strictly
confidential and may not make any disclosure of this Agreement to any Person.
11.4 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, either
before or after the Closing, 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.
11.5 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 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
GRTP, Ltd.
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx #000
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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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
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
11.6 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.
11.7 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.
11.8 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
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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.
11.9 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.
11.10 ACCOUNTS RECEIVABLE. Buyer agrees to forward to Seller any
payments that Buyer may receive with respect to any accounts receivable of
Seller.
11.11 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.
11.12 RISK OF LOSS. Material risk of loss or damage to the Purchased
Assets from any cause whatsoever prior to the Closing shall be borne by Seller,
and after the Closing shall be borne by Buyer.
11.13 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 11.13 shall obligate any Party hereto to make
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.
11.14 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.
11.15 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:
-----------------------------------
Xxxx Xxxxxx
President
SELLER:
GRTP, LTD.
By: Xxxxxxxx Texas Properties LLC,
General Partner
By:
-----------------------------------
Xxxxxx X. Xxxxxxxx, III
President
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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.
"ASSIGNMENT OF CONTRACTS" -- the Assignment and Assumption of Contracts
in the form of Exhibit B attached hereto.
"ASSIGNMENT OF PERMITS" -- the Assignment and Assumption of Permits in
the form of Exhibit C attached hereto.
"ASSIGNMENT OF SITE LEASES" -- the Assignment and Assumption of Site
Leases in the form of Exhibit D attached hereto.
"ASSUMED LIABILITIES" -- as defined in Section 2.3.
"ASSUMED OTHER CONTRACTS" -- the Office Lease, the Joint Venture
Agreements and the Management Agreements.
"BANK LIEN" -- that certain security interest and lien in the Purchased
Assets held by Bank One.
"BEST EFFORTS" -- the efforts that a prudent Person desirous of
achieving a result would use in similar circumstances.
"XXXX OF SALE" -- the Xxxx of Sale, Assignment and Assumption Agreement
in the form of Exhibit E attached hereto.
"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" -- the date and time as of which the Closing actually
takes place.
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"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, (b) the execution and delivery by Buyer and Seller of the Leases,
and (c) 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 10.1.
"DEEDS" -- limited warranty deeds (or the statutory equivalent thereof
with covenants against grantor's acts only), in recordable form, with respect to
the Owned Real Property.
"DISCLOSURE SCHEDULE" -- the disclosure schedule, delivered by Seller
to Buyer concurrently with the execution and delivery of this Agreement.
"DUE DILIGENCE PERIOD" -- as defined in Section 5.2.
"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.
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"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.
"GENERAL PARTNER" -- Xxxxxxxx Texas Properties, LLC.
"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.
"HSR ACT" -- the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and any regulations and rules promulgated thereunder.
"JOINT VENTURE AGREEMENTS" -- as defined in Section 2.2(e).
"INDEMNIFIED PERSON" -- any of the Seller Indemnified Persons or the
Buyer Indemnified Persons, as the context requires.
"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.
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"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, any of Seller's Partners) (or in any similar capacity) has Knowledge of
such fact or other matter.
"LEASES" -- those leases pertaining to the Real Property leased by
Seller, and the real property leased by Xxxxxxxx, to Buyer substantially in the
form of Exhibit F and on the terms further described on Exhibit F.
"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.
"LIMITED PARTNER" -- Xxxxxxxx Outdoor, Inc.
"MANAGEMENT AGREEMENTS" -- as defined in Section 2.2(e).
"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.
"OFFICE LEASE" -- that certain Office Lease for office space in Dallas,
Texas between Xxxxxxxx Outdoor, Inc. and Summer Springs Joint Venture Limited
Partnership dated February 19, 1989, as amended April 20, 1989 and September 2,
1993.
"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.
"ORDINARY COURSE OF BUSINESS" -- an action taken by a Person will be
deemed to have been taken in the "Ordinary Course of Business" if such action is
consistent with the past custom and practices of such Person and is taken in the
ordinary course of the normal day-to-day operations of such Person (including
with respect to quantity and frequency).
"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, Management
Contract or Advertising Contract) relating to or affecting the Purchased Assets,
the Real Property, 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
or the Real Property is or may become bound.
"PARTNERS" -- the General Partner and the Limited Partner.
"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, mechanic's,
materialmen's and similar liens which have arisen in the ordinary course of
business, and purchase money security interests.
"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 2.6.
"PURCHASED ASSETS" -- as defined in Section 2.2.
"REAL PROPERTY" -- as defined in Schedule 2.2(x).
"RELEASE" -- any spilling, leaking, emitting, discharging, depositing,
escaping, leaching, dumping, or other releasing into the Environment, whether
intentional or unintentional.
"XXXXXXXX" -- Xxxxxx X. Xxxxxxxx, III, a resident of Highland Park,
Dallas County, Texas.
"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.
"SELLER'S PREDECESSOR" -- Xxxxxxxx Outdoor, Inc.
"SITE LEASES" -- as defined in Section 2.2(b).
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"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 CLEARANCES" -- as defined in Section 5.9.
"TAX RETURN" -- any return (including any information return), report,
statement, schedule, notice, form, or other document or information filed with
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)
1. All of the real property owned in fee by Seller, and all buildings,
facilities, fixtures, leasehold and other improvements located therein (other
than the Structures), listed on the attached list.
2. All accounts receivable of Seller.
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SCHEDULE 2.9
Total Adjustment to
Purchase Price Purchase Price
Joint Venture for Assets Payable to GRTP, Ltd.
------------- ---------- ---------------------
RV Outdoor Sign Joint Venture $1,500,000 ($ 750,000.00)
Xxxxxxxx/XxXxxxx Joint Venture 332,615 ( 166,307.50)
Outdoor Sign Joint Venture 376,095 ( 188,047.50)
