ASSET PURCHASE AGREEMENT
THIS AGREEMENT, is made on February 28, 1997, between XXXXX XXXXX OUTDOOR
ADVERTISING, INC., a New Jersey corporation ("Seller"), and UNIVERSAL OUTDOOR,
INC., an Illinois corporation ("BUYER"). In consideration of the mutual promises
and undertakings contained in this Agreement, and other good and valuable
consideration the receipt of which is acknowledged, SELLER agrees to sell and
BUYER agrees to buy certain specified assets of SELLER, upon the following terms
and conditions:
1. DEFINED TERMS. The terms set forth below are defined in the section
of this Agreement set forth opposite each term:
Assets 3
Broker Agreement 4
Buyer Preamble
Closing 5
Contracts 3.3
Displays 3.1
KOA Preamble
Leases 3.2
Locations 3
Permits 3.4
Prepaid Leases 10
Seller Preamble
Steelgrave 4
Unbuilt Locations 3.5
2. EFFECTIVE DATE. The effective date of the transfer of the assets to
be conveyed shall be the date of Closing.
3. ASSETS TO BE SOLD. SELLER agrees to convey to BUYER at the time of
Closing, good and merchantable title to the assets, by a Xxxx of Sale and
Assignment and Assumption Agreements, the following property ("Assets") at the
locations listed on Exhibit 3 ("Locations"):
3.1 OUTDOOR ADVERTISING DISPLAYS. All personal property owned by
SELLER used in the operation of the existing bulletin, junior poster, eight-
sheet painted walls or any other outdoor advertising displays ("Displays") as
are more fully described by Location in Exhibit 3 which property shall be
conveyed pursuant to the original
Xxxx of Sale which is attached as Exhibit 3.1;
3.2 GROUND LEASES. The title, leases, licenses or agreements for the
rights of use ("Leases"), for the Locations listed on Exhibit 3, which Leases
shall be conveyed pursuant to the original Assignment and Assumption of Leases,
which is attached as Exhibit 3.2;
3.3 ADVERTISING CONTRACTS. The advertising contracts ("Contracts")
for the Locations listed on Exhibit 3, which Contracts shall be conveyed
pursuant to the original Assignment and Assumption of Advertising Contracts,
which is attached as Exhibit 3.3;
3.4 PERMITS. All necessary and requisite permits and governmental
approvals ("Permits") for the Locations listed on Exhibit 3, which Permits shall
be conveyed pursuant to the original Assignment and Assumption of Permits, which
is attached as Exhibit 3.4; and
3.5 UNBUILT LOCATIONS. Any complete or partially complete Displays
and any Leases, Contracts or Permits for locations which have not yet been
constructed ("Unbuilt Locations"). The Unbuilt Locations of SELLER are more
fully described in Exhibit 3.5 and any Leases, Contracts and Permits pertaining
to Unbuilt Locations shall be conveyed by the Xxxx of Sale and Assignment and
Assumption Agreements attached as Exhibit 3.1 - 3.4.
4. PURCHASE PRICE. BUYER agrees to purchase the assets listed above for
the total sum of $4.7 million (plus or minus prorations specified below) (the
"Purchase Price") payable to SELLER at Closing. Simultaneously with the payment
of the Purchase Price to SELLER, at the direction of SELLER, Buyer shall pay
$600,000 to Steelgrave Investment Corp. ("Steelgrave") in compensation for
amounts due to it by SELLER pursuant to that certain agreement dated as of
January 14, 1997 among SELLER and Steelgrave (the "Broker Agreement"). The
Purchase Price shall be paid by wire transfer as designated on Exhibit 4.
5. CLOSING. This transaction shall be closed ("Closing") on the date
first set forth above or on such date as mutually agreed ("Closing Date"), at a
location to be mutually agreed upon.
6. TRANSFER OF ASSETS.
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6.1 SELLER shall convey all property and assets referred to in
Sections 3 through and including 3.5 to BUYER by delivering to BUYER a Xxxx of
Sale and Assignment and Assumption Agreements in the form set forth on Exhibits
3.1, 3.2, 3.3, 3.4 and 3.5.
6.2 SELLER shall be entitled to all payments due under the Contracts
for the month of February, 1997 and before. BUYER shall be entitled to all
payments due under the Contracts for the month of March, 1997, and after. BUYER
shall be entitled to a credit at Closing for a prorated amount of the xxxxxxxx
for that portion of the month of February, 1997 beginning the day after Closing
through the end of the month. The parties agree that the February, 1997 xxxxxxxx
were $58,699.96 net of all agency commissions paid or to be paid by SELLER. In
the event SELLER receives payments belonging to BUYER after Closing, those
payments shall be immediately transferred to BUYER and SELLER shall endorse any
such checks payable to the order of BUYER. Any sums due under the Contracts for
any time period before the month of February, 1997, shall remain the property of
the SELLER and shall continue to be receivable of the SELLER, even after
Closing. If there shall be any check received pertaining to both time periods
(before and after February, 1997), BUYER and SELLER agree to promptly distribute
(and in no event later than five (5) days after receipt) the proceeds in a
manner consistent with this paragraph. At Closing, SELLER shall deliver executed
notices from SELLER to advertisers directing payment to BUYER after the Closing
of payments for advertising services after February, 1997, on the Contracts
conveyed. At Closing, SELLER shall deliver executed notices from SELLER to
lessors of the Leases advising the lessors that the SELLER's obligations under
the Leases have been assigned to the BUYER effective as of the Closing Date. All
notices in this Section 6.2 shall be in the form attached as Exhibit 6.2.
6.3 SELLER will, on or after Closing, execute and deliver any other
documents as may be reasonably necessary to transfer or further perfect title to
the assets transferred to BUYER including, without limitation, bills of sale,
assignments, permits and any other documents, sending letters and notices to
advertisers, lessors and appropriate government officials notifying them of the
date of transfer and that future payments, notices, etc., are to be directed to
BUYER or its nominee.
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7. CLOSING STATEMENT. At the time of Closing, the parties shall prepare a
Closing Statement which shall be signed by each of the parties and shall
indicate appropriate debits and credits on account of the Purchase Price,
prorations, security deposits and other adjustments as more fully described in
this Agreement.
8. BOOKS AND RECORDS. At the time of Closing, SELLER shall deliver to
BUYER all correspondence, notes, books, records, and other documents in SELLER's
possession or control, relating to the assets purchased including but not
limited to the following: (1) all Leases, (2) all Contracts, (3) all Permits and
(4) all files and computer-generated reports pertaining to the Locations
including the Unbuilt Locations to the extent they exist and to the extent
conveniently available, including a complete list of all ground lease lessors,
advertising customers and their respective mailing addresses and phone numbers,
all photographs of Displays under contract to the extent available and all art
work, sketches, pounce patterns, diagrams, schematics and related materials.
8.1 SELLER may retain copies of and shall continue after Closing to
have access to any books, records or other documents transferred:
8.1.1 which are or may be relevant to any claim or defense
SELLER may have against third persons or which SELLER reasonably deems necessary
in any action or proceeding concerning SELLER's assets, or
8.1.2 which are or may be relevant to SELLER's liability for
taxes in connection with or arising out of the conduct or ownership of the
assets purchased. SELLER shall not deliver to BUYER any books, records, or other
documents relating to ideas SELLER may have had for the conduct of any business
other than the business relating to the assets purchased by BUYER.
8.2 This provision shall not constitute a covenant by or requirement
that the BUYER preserve or retain for more than three (3) years from Closing any
books, records, or other documents delivered under this provision.
9. NO LIENS AT CLOSING. SELLER will, prior to or at the Closing, take
such steps necessary to deliver title to
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the assets to be conveyed free of any liens or encumbrances and as otherwise
warranted.
10. PRORATIONS. The Purchase Price set forth in Section 4 is subject to
the following adjustments and prorations.
10.1 Plus an amount which will credit SELLER for lease payments which
have been paid in advance for time periods following Closing ("Prepaid Leases").
10.2 Minus the amounts which will credit BUYER for the following:
10.2.1 Any lease payments for which BUYER becomes obligated
relating to any period of time prior to Closing.
10.2.2 Any advertising services delivered after Closing for
which SELLER has already billed or otherwise receives payment.
10.2.3 All items of income and expense listed below relating to
the Assets will be prorated as of the Closing Date, with SELLER liable to the
extent such items relate to any time period up to and including the Closing
Date, and BUYER liable to the extent such items relate to periods on or
subsequent to the Closing Date; including without limitation (a) personal
property, real estate, occupancy and water taxes, if any, on or with respect to
the Assets; (b) rents, taxes and other items payable by SELLER under any
contract to be assigned to or assumed by BUYER; (c) the amount of sewer rents
and charges for water, telephone, electricity and other utilities and fuel; (d)
all rentals that are or would be payable or have accrued pursuant to "percentage
rental" lease provisions with respect to periods after the Closing Date (for
purposes of this Section 10.2.3, the Closing Date shall be the end of any such
periods for accrual purposes); and (e) all items paid or payable on or after the
Closing Date under any obligation specifically assumed to the extent not
specifically referenced in clauses (a) - (d) above which are normally prorated
in connection with similar transactions. A list of percentage leases with the
date of expiration is attached hereto as Exhibit 10.2.3;
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10.2.4 If current payments with respect to items to be prorated
pursuant to this Section 10.2 are not ascertainable on or before the Closing
Date, such payments shall be prorated on the basis of the most recently
ascertainable xxxx therefor and shall be reprorated between SELLER and BUYER
when the current bills with respect to such items have been issued and a cash
settlement shall be made within thirty (30) days thereafter.
11. SELLER'S WARRANTIES. SELLER represents, warrants and agrees that the
following are true and correct on the date of this Agreement and will continue
to be true and correct on each day until and including the Closing as though
made on and as of each day:
11.1 ORGANIZATION. SELLER is a corporation formed under the laws of
the State of New Jersey, it has complied with all laws concerning the right of
the corporation to conduct its business and is legally qualified to transact
such business. SELLER has the full power and authority to own, lease and operate
its properties and conduct its business as conducted in the places where the
properties are now owned, leased or operated, by SELLER.
11.2 AUTHORIZATION. SELLER is duly authorized to execute, deliver
and complete this Agreement.
11.3 LIABILITIES. As of the date of this Agreement, SELLER has no
knowledge of any liability, absolute or contingent, arising from or in any way
connected with the Assets.
11.4 LITIGATION. To SELLER's knowledge, there is no action,
proceeding, or investigation pending or threatened against SELLER or involving
any of the Assets before any court or before any governmental department,
commission, board, agency, or instrumentality, nor does SELLER know of any basis
for any such action, proceeding or investigation which could result in any
order, injunction or decree against SELLER or involve any of the Assets except
as set forth in Exhibit 11.4.
11.5 AGREEMENTS. This Agreement will not conflict with, result in a
breach of the terms and conditions of, accelerate any provision of, or
constitute any
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default under any contract or agreement to which SELLER is now, or may become a
party.
11.6 TITLE OF ASSETS. SELLER has good title to all of the assets,
properties, rights and interest to be sold, subject to no mortgage, pledge,
lien, charge or encumbrance of any nature, except as noted on Exhibit 11.6,
which will be discharged at or before the Closing.
11.7 CONDITION OF DISPLAYS. The Displays and equipment to be sold to
BUYER are in good working order and repair, and comply with all applicable
building codes, zoning or other promulgations of entities having jurisdiction
over the construction and maintenance of the Displays and are fit for intended
purpose in accordance with industry standards.
11.8 COMPLIANCE WITH STATES' CORPORATE LAWS. SELLER will comply with
all the requirements and conditions of the corporate and revenue laws and
ordinances of all states and municipalities in which SELLER transacts business
relative to the sale of the Assets by the date of Closing and will deliver to
BUYER, upon request, proper certified copies of corporate resolutions
authorizing negotiation and consummation of this transaction whether or not
required by applicable law.
11.9 LEASES. The Leases are valid and in full force and effect and
permit the continued presence of the Display. Neither SELLER nor to SELLER's
knowledge any lessor is in default of any Lease. Contractual lease payments will
be made by SELLER for all periods up to and including Closing.
11.10 CONTRACTS. The Contracts are valid and in full force and
effect. Neither SELLER nor to SELLER's knowledge is any advertiser in default of
any Contract.
11.11 PERMITS. SELLER has obtained all necessary permits and other
federal, state and local authorizations necessary to allow the continued
presence of the Displays where located; all applicable fees for such permits
have been paid; all such permits are valid and in effect and to SELLER's
knowledge are fully transferable; and to SELLER's knowledge neither the
execution nor the consummation of this Agreement will terminate any Permit.
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SELLER agrees to cooperate fully with BUYER in renewing any Permit after
Closing.
11.12 BROKERS. SELLER is not a party to or in any way obligated
under any contract for payment of fees and expenses to any broker or finder in
connection with the origin, negotiation, execution or consummation of this
Agreement except for Steelgrave, as to which BUYER shall, pursuant to Section 4
hereof, pay such amount as set out in such Section 4 and as to which BUYER shall
incur no further obligation or liability, and notwithstanding Section 16, SELLER
agrees to indemnify and hold BUYER harmless from any liability arising from this
transaction from any loss, liability or obligation incurred by BUYER by reason
of a breach of this representation including reasonable attorneys' fees and
costs.
11.13 DISCLOSURE. No representation or warranty made by SELLER in
this Agreement nor any statement or certificate already furnished or to be
furnished by SELLER in connection with the transactions contemplated, contain
any known untrue statement of or fails to state a known material fact.
11.14 DISPLAY AND ADVERTISING FACES. There are six (6) Displays with
a total of ten (10) advertising faces being purchased by BUYER.
11.15 NO CONTINUING INTEREST. Following Closing, neither SELLER nor
any officer, director or shareholder of SELLER will have any direct, indirect or
beneficial ownership or other financial interest in any real or personal
property which is in any way involved with or related to the operation of the
sign structures being purchased by BUYER.
12. BUYER'S WARRANTIES. BUYER represents, warrants and agrees that the
following are true and correct on the date of this Agreement.
12.1 ORGANIZATION. BUYER is a corporation formed under the laws of
the State of Illinois, it has complied with laws concerning the right of the
corporation to conduct its business and is legally qualified to transact such
business. BUYER has the full power and authority to own, lease and operate its
properties and
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conduct its business as conducted in the places where the properties are now
owned, leased or operated, by SELLER.
12.2 AUTHORIZATION. BUYER is duly authorized to execute, deliver and
complete this Agreement.
12.3 COMPLIANCE WITH STATES' CORPORATE LAWS. BUYER will comply with
all the requirements and conditions of the Business Corporation Act ("Act"), in
the state of Illinois relative to the sale of the assets by the date of Closing
and will deliver to SELLER an Officer's Certificate attesting to the authority
of BUYER to negotiate and consummate this transaction whether or not required by
the Act.
12.4 BROKERS. BUYER is not a party to or in any way obligated under
any contract for payment of fees and expenses to any broker or finder in
connection with the origin, negotiation, execution or consummation of this
Agreement, and notwithstanding Paragraph 15, BUYER agrees to indemnify and hold
SELLER harmless from any liability arising from this transaction from any loss,
liability or obligation incurred by SELLER by reason of a breach of this
representation including reasonable attorneys' fees and costs.
13. CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of BUYER to close
or perform is subject to the satisfaction of the following conditions, any of
which the BUYER may at its election enforce or waive:
13.1 BUYER shall have completed, prior to Closing and to BUYER's
reasonable satisfaction BUYER's due diligence inspections and investigations,
including BUYER's review of SELLER's books and records specified in Section 8
above, and that such inspections and investigations shall not reveal a breach of
any representation, warranty or covenant in this Agreement.
13.2 All representations and warranties of SELLER shall be true and
correct as of the date of this Agreement and shall be true and correct in all
respects on the Closing Date with the same force as if such representations and
warranties had been made on the Closing Date, all agreements to be performed by
SELLER on or prior to the Closing Date shall have been fully performed, and,
upon request, BUYER shall have received a certificate dated
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the Closing Date signed by the duly authorized President or Vice President and
attested by the Secretary or an Assistant Secretary of SELLER to that effect.
13.3 If requested, BUYER shall have received an original certificate
of good standing for the SELLER issued by the states in which SELLER transacts
business; and resolutions of the Board of Directors or unanimous written consent
of the shareholders of SELLER, authorizing the execution, delivery and
performance of this Agreement, certified by the Secretary or an Assistant
Secretary of SELLER.
13.4 There shall not have been any material adverse change in
SELLER's assets or condition, financial or otherwise, including, without
limitation, its relationships with customers, landlords or others, between the
date of this Agreement, and the date of Closing. SELLER agrees to operate and
maintain its business in its regular course from the date of this Agreement to
Closing.
13.5 SELLER shall have maintained its assets to be conveyed,
including the Displays, in at least as good condition and repair as on the date
of this Agreement and will not voluntarily suffer anything to be done that will
decrease the value of its property, ordinary wear and tear excepted.
13.6 Counsel for BUYER shall have approved the form, substance and
sufficiency of all instruments to be delivered by SELLER at or before Closing.
Approval will not be unreasonably withheld, denied or delayed.
13.7 If SELLER cannot timely cure any defect which prevents Closing
after good faith efforts, then either party may rescind this Agreement.
13.8 SELLER shall have executed and delivered to BUYER a
Noncompetition, Nonsolicitation and Nondisclosure Agreement in the form attached
as Exhibit 13.8.
14. GENERAL CONDITIONS.
14.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by the Parties to this Agreement
shall
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survive the consummation and/or Closing of this Agreement and any investigation
made at that time by or on behalf of either party.
14.2 SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of SELLER and BUYER.
14.3 NOTICES. All notices shall be in writing and delivered in
person or sent by certified, registered or express mail or by facsimile:
IF FOR SELLER, ADDRESSED TO: Xxxxx Xxxxx, Outdoor Advertising
Xxxxx Xxxxx, President
00 Xxxxx Xxxx
Xxxx Xxxx Xxxxxx, Xxx Xxxxxx 00000
Telephone 000-000-0000
Facsimile 000-000-0000
WITH A COPY TO: Xxxxxxxx, Hanlon, Doherty,
XxXxxxxxx & Xxxxxxx
Xxxxx Xxxxxxx
00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
IF FOR BUYER, ADDRESSED TO: Universal Outdoor, Inc.
Xxxx X. Xxxxx, Secretary
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone 000-000-0000
Facsimile 000-000-0000
WITH A COPY TO: Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
Xxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
of such other address for either or both as is stated in a written notice given
in compliance under this clause.
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14.4 HEADINGS. The various headings used in this Agreement as
headings for sections or otherwise are for convenience and shall not be used in
interpreting the text of the section in which they appear.
14.5 PRESS RELEASES. Any press releases or other public announcement
of this transaction, other than any filing that may be required by law, shall be
first approved by BUYER and SELLER.
14.6 GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with the law of the State of Illinois.
14.7 SEVERABILITY. The invalidity of any provision of this Agreement
shall not impair the validity of any other provision. If any provision of this
Agreement is determined by a court of competent jurisdiction to be
unenforceable, that provision will be deemed severable and the Agreement shall
be enforced with that provision severed or as modified by the court to the
extent necessary to carry out the present manifest intentions of the parties.
14.8 ENTIRE AGREEMENT AND MODIFICATION. This Agreement sets forth
the entire understanding of the parties. It may be amended, modified or
terminated only by instruments signed by the parties.
14.9 COUNTERPARTS. This Agreement is executed in three counterparts,
each of which shall be deemed to be and shall constitute one and the same
instrument.
14.10 FEES AND COSTS. BUYER and SELLER agree that each party shall
bear its own costs and expenses, including attorneys' fees, in connection with
this transaction.
15. INDEMNIFICATION.
15.1 SELLER shall defend, indemnify and hold BUYER harmless against
and in respect of:
15.1.1 Any and all loss, damage, deficiency, or liability from
(i) any misrepresentation, breach of representation, warranty or covenant, or
nonfulfillment of any agreement on the part of SELLER under this Agreement; and
(ii) any liability or obligation incurred by
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SELLER or arising out of any event or circumstances occurring prior to the
Closing Date which is not assumed by BUYER; and
15.1.2 Any and all actions, suits, proceedings, demands,
assessments, costs and expenses, including reasonable attorneys' fees, incident
to Sub-Section 15.1.1.
15.2 BUYER shall defend, indemnify and hold SELLER harmless against
and in respect of:
15.2.1 Any and all loss, damage, deficiency, or liability from
(i) any misrepresentation, breach of representation, warranty or covenant, or
nonfulfillment of any agreement on the part of BUYER under this Agreement; (ii)
any liability or obligation incurred by BUYER or arising out of any event or
circumstances involving the assets occurring after Closing Date; and
15.3 BUYER or SELLER shall, within reasonable time of its receiving
notice of a claim, give written notice to the other party of any claim for which
that party seeks indemnification under Section 15.1 and 15.2, and the indemnitor
shall have the right to contest, defend, or litigate any matter in respect of
which indemnification is claimed. Any delay in or failure to give notice of a
claim for indemnification shall not relieve the indemnitor's obligation except
to the extent that the indemnitor can demonstrate prejudice by such delay or
failure. The indemnitor shall have the exclusive right to settle, either before
or after the initiation of litigation, any matter in respect of which
indemnification is claimed, but, prior to any such settlement, written notice of
not less than ten (10) days of its intention to do so shall be given to the
other party. In the event the indemnitor fails promptly to defend any such claim
as provided in Sections 15.1 or 15.2, the other party may do so and shall then
have the right, in its sole discretion, exercised in good faith and upon the
advice of counsel, to settle, either before or after the initiation of
litigation, any matter in respect of which indemnification is claimed.
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16. SELLER'S BREACH OF WARRANTIES. In addition to any other remedy BUYER
may have at law or equity, if SELLER breaches any of the representations,
warranties and covenants, and the result of the breach of representation,
warranty or covenant by SELLER is that BUYER can no longer maintain the Displays
in their existing locations, SELLER shall refund to BUYER a prorated portion of
the purchase price as the value of the lost Displays bears to the total amount
paid.
17. CORPORATE NAME. BUYER specifically agrees that it is not acquiring
any right to use the name of SELLER in the operation of the assets purchased.
BUYER further agrees that it will cause to be removed any name identification of
the SELLER from the purchased assets within one hundred eighty (180) days of
Closing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXX XXXXX OUTDOOR ADVERTISING, INC.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: President
UNIVERSAL OUTDOOR, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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