PURCHASE AGREEMENT
THIS AGREEMENT is hereby made this, March 1, 1999 by and between GDM Outdoor
Advertising, a partnership ("GDM" or the "Company"or "SELLER"), ▇▇▇▇▇ ▇▇▇▇▇▇,
individually, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, individually, partners of GDM ("Partner"),
and ▇▇▇▇▇▇ Outdoor Advertising & Travel Centers Incorporated, a Nevada
corporation ("▇▇▇▇▇▇").
Purpose of Agreement
▇▇▇▇▇▇ desires to purchase and GDM desires to sell certain tangible and
intangible assets that comprise a portion of GDM's business known as "GDM
Outdoor Advertising". Therefore, in consideration of the premises and of the
mutual representations, warranties and covenants herein contained, the parties
hereby agree as follows:
Terms and Conditions
Purchase Price
The purchase price shall be One Million Three Hundred and Fifty Thousand and
No/100 Dollars ($1,350,000.00).
In addition to the amount specified above, at closing an adjustment of the
purchase price listed above shall be made for:
(a) an amount equal to the amount of any prepaid rents, leases, permits
and taxes as specified in attached Exhibit E and incorporated for all
purposes herein. This amount will be paid by ▇▇▇▇▇▇ to SELLER, but will
be reduced by the amount of any prepaid advertising rents received by
SELLER and further reduced by ▇▇▇▇▇▇'▇ prorated share (prorated by day
as of Closing date) of the current month's revenue billed in advance by
SELLER; and
The purchase price, and payments noted above, shall be the sole considerations
paid by ▇▇▇▇▇▇ under this agreement.
Date of Closing
The parties contemplate that Closing shall take place on March 1,
1999. If Closing does not occur by that date, it will occur as
soon thereafter as ▇▇▇▇▇▇ is able to complete its due diligence
investigation. The parties agree that ▇▇▇▇▇▇'▇ obligation to
complete this purchase is contingent upon ▇▇▇▇▇▇ being satisfied,
in its sole discretion, that all representations made to it
concerning GDM's assets are true; that the financial condition,
books, and accounts of GDM are sound; that the land leases,
outdoor advertising permits and advertising contracts are of
satisfactory condition to ▇▇▇▇▇▇; and that the value of the assets
being transferred is not less than the purchase price.
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Transfer of Assets
At closing, SELLER will sell, transfer, assign, convey and deliver to ▇▇▇▇▇▇
free and clear of any liens, debts, or encumbrances, save and except any liens
or encumbrances affecting the underlying fee title estate on the real property
subject of the land leases for the sign sites, and ▇▇▇▇▇▇ will purchase, accept
and acquire from SELLER all of the Assets listed in Exhibit A attached hereto
and incorporated for all purposes herein.
Instruments of Transfer
(a) GDM and Partner's Deliveries. At the closing, GDM shall deliver to
▇▇▇▇▇▇:
i. A ▇▇▇▇ of sale transferring to ▇▇▇▇▇▇ title to the Assets as
provided herein, in form and substance acceptable to ▇▇▇▇▇▇;
ii. A five (5) year non-competition agreement for ▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. (See attached Exhibit G1, and G2);
iii. Letter(s) from GDM and Partner to the Texas Department of
Transportation regarding transfer of the applicable outdoor
advertising permits from Partner to ▇▇▇▇▇▇ in the form of
attached Exhibit E also any forms or letters necessary to
transfer permits from the Arkansas Department of Transportation;
iv. Assignment of land lease agreements pertinent to sign sites
located on property owned by third parties (See attached Exhibit
D);
v. Such other bills of sale, titles and other instruments of
assignment, transfer and conveyance as ▇▇▇▇▇▇ shall reasonably
request, in recordable form, where appropriate, and properly
executed, evidenced and notarized where appropriate in such form
as shall be necessary or appropriate to vest in Buyer good title
to the Assets.
vi. Advertising contracts for all current advertisers.
(b) ▇▇▇▇▇▇'▇ Deliveries. At the closing, ▇▇▇▇▇▇ shall deliver to GDM:
i. Immediately available funds to one or more accounts designed by
SELLER for the purchase price as specified herein;
ii. Checks in an amount sufficient to pay the net amount due for
items listed in Exhibit E.
(c) Other Transfer Instruments. Following the Closing, at the request of
▇▇▇▇▇▇, GDM shall deliver any further Instruments and take all
reasonable action as may be necessary or appropriate to vest in ▇▇▇▇▇▇
all of GDM's title to the assets.
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No Assumption of Liabilities
It is expressly understood and agreed by the parties hereto that
▇▇▇▇▇▇ assumes no debts, liabilities (including tax liabilities)
or obligations (contractual or otherwise) of GDM or Partners or
any other debts, liabilities or obligations related to the conduct
of GDM's business.
Representations and Warranties
GDM and Partner represent and warrant to ▇▇▇▇▇▇ as of the date
hereof and on the closing date as follows (all representations and
warranties being joint and several):
(a) Authority. GDM has the legal authority to sell, transfer,
and deliver to ▇▇▇▇▇▇ the tangible and intangible assets of
the business known as "GDM Outdoor Advertising"
(b) Title. GDM has good and marketable title to all properties,
assets and leasehold estates, real and personal, tangible
and intangible, to be transferred pursuant to this Agreement
subject to no mortgage, pledge, lien, conditional sales
agreement, encumbrance or charge.
(c) Insurance. GDM carries insurance, which it believes to be
adequate in character and amount, with reputable insurers in
respect of its properties, assets, and business and such
insurance policies are still in full force and effect, and
shall be in effect without interruption until closing has
occurred.
(d) Violations, Suits, Claims, etc. GDM is not in default under
any law or regulation, or under any order of any court or
federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality
wherever located, and there are (1) no claims, actions,
suits or proceedings instituted or filed and (2) no claims
actions, suits or proceedings threatened presently or which
in the future may be threatened or asserted against or
affecting GDM at law or in equity, or before or by any
federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality
wherever located, and (3) there are no potential claims,
demands, liens, encumbrances, or debts with regard to the
assets that are the subject of this sale or that may create
for ▇▇▇▇▇▇ any environmental or regulatory liability.
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(e) Tax Returns. GDM has filed all requisite federal, state and
other tax returns due for all fiscal periods ended on or
before the date of this agreement. There are no claims
against GDM for federal, state or other taxes for any period
or periods to and including the date of this agreement, the
amounts shown as provisions for taxes on the financial
statements of GDM as of the date of this agreement delivered
to ▇▇▇▇▇▇ are sufficient for the payment of all taxes of all
kinds for all fiscal periods ended on or before that date.
(f) Sole Partners. Partners are the sole owners of the Company,
and no other person has any right to acquire any interest in
the Company.
(g) Effect of Agreement. The execution, delivery and performance
of this Agreement by GDM and Partner and the consummation of
the transactions contemplated hereby will not, with or
without the giving of notice or the lapse of time, or both:
(a) violate any material provision of law, statute, rule or
regulation to which Company is subject; (b) violate any
judgment, order, writ or decree of any court, arbitrator or
governmental agency applicable to Company; or (c) result in
a material breach of or material conflict with any term,
covenant, condition or provision of, result in the
modification or termination of, constitute a material
default under, or result in the creation or imposition of,
any lien, security interest, charge or encumbrance upon any
of the Assets pursuant to any charter, bylaw, commitment,
contract or other agreement or instrument, to which Company
is a party or by which any of its Assets is bound.
(h) Permits, Licenses, Compliance with Applicable Laws and Court
Orders. Company has all requisite power and authority, and
all permits, licenses and approvals of governmental and
administrative authorities, to own, lease and operate its
properties and to carry on its business as presently
conducted; all such permits, licenses and approvals material
to the conduct of the business of Company are in full force
and effect. Company's conduct of its business does not
materially violate or infringe any applicable law, statute,
ordinance or regulation. Company is not in default in any
respect under any executive, legislative, judicial,
administrative or private (such as arbitration) ruling,
order, writ, injunction or decree.
(i) Financial Information. All financial information relating to
the Assets or the business and provided to ▇▇▇▇▇▇ by GDM
have been prepared from the books and records of seller in
accordance with generally accepted accounting principles and
fairly and accurately present the financial condition of GDM
and the business relating to the Assets as of the date of
such information.
(j) Absence of Undisclosed Liabilities. GDM has no liabilities
other than those that are expressly disclosed in the
financial information provided to ▇▇▇▇▇▇. Between the date
of this Agreement and the Closing, there will be no material
change in the financial position of GDM.
(k) Agreements, Plans, Arrangements, etc. Except as set forth in
Exhibit A hereto, Company is not a party to, nor is Company
or any of the Assets bound or affected by, any oral or
written:
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(1) lease agreement (whether as lessor or lessee) relating
to real or personal property;
(2) license agreement, assignment or other contract
(whether as licensor or licensee, assignor or assignee)
relating to trademarks, trade names, patents,
copyrights (or applications therefor);
(3) agreement with any business broker with respect to this
transaction;
(4) agreement with any supplier, distributor, franchisor,
dealer, sales agent or representative;
(5) joint venture or partnership agreement with any other
person;
(6) agreement with any bank, factor, finance company or
similar organization regarding the financing of
accounts receivable or other extensions of credit;
(7) agreement granting any lien, security interest or
mortgage on any Asset or other property of Company,
including, without limitation, any factoring agreement
for the assignment of accounts receivable;
(8) agreement for the Construction or modification of any
Asset or leasehold interest of Company;
(9) agreements with advertisers for lease of sign
structures;
(10) agreement with any employee, consultant, or independent
contractor providing personal services to Company.
(l) Acquisition Agreements. There are no agreements relating to the
acquisition of the stock, business or Assets of Company to which
Company is a party, other than this Agreement.
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(m) Status of Real Property. Neither Company nor Partner has received
any notice of noncompliance with respect to real property on
which any of the Assets are located (the "Real Property") with
any applicable statutes, laws, codes, ordinances, regulations or
requirements relating to fire, safety, health or environmental
matters or noncompliance with any covenants, conditions and
restrictions (whether or not of record) or local, municipal,
regional, state or federal requirements or regulations. To the
best of Company's and Partner's knowledge, there has been no
release or discharge on or under the Real Property by the Company
of any toxic or hazardous substance, material or waste which is
or has been regulated by any governmental or quasi-governmental
authority or is or has been listed as toxic or hazardous under
any applicable local, state or federal law. To the best of the
Company's and Partner's knowledge, there are no subsurface or
other conditions related to toxic or hazardous waste affecting
the Real Property or any portion or component thereof, and there
are no underground storage tanks located on the Real Property.
(n) Defects. To the best of Company's and Partner's knowledge, there
are no structural or operational defects in any of the Assets.
SELLER acknowledges that to the best of SELLER's knowledge all
signs were constructed and installed to normal industry standards
by qualified and licensed manufacturers and installers.
(o) Leases Current. All obligations of the Company under all existing
lease agreements which are required by such agreements to have
been performed by Company have been fulfilled by the Company,
including the payment by the Company of all lease payments due
and payable through the date hereof.
(q) Permits Current. All payments due and payable for required
permits from governmental bodies have through the date hereof
been fulfilled by the respective SELLER.
▇▇▇▇▇▇ represents and warrants to GDM and Partner as of the date hereof and the
Closing date as follows:
(a) Organization. ▇▇▇▇▇▇ is a validly existing corporation organized
under the laws of the State of Nevada and has all requisite
corporate power and authority to own, operate and lease its
properties and assets.
(b) Authority. ▇▇▇▇▇▇ has full corporate power, authority and legal
rights to execute and deliver, and to perform its obligations
under this Agreement, and has taken all necessary action to
authorize the purchase hereunder on the terms and conditions of
this Agreement and to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly
executed by ▇▇▇▇▇▇, and constitutes a legal, valid and binding
obligation of ▇▇▇▇▇▇ enforceable in accordance with its terms.
(c) Compliance with Instruments, Consents, Adverse Agreements.
Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will
conflict with or result in any violation of or constitute a
default under the articles of incorporation or the by-laws of
▇▇▇▇▇▇, or any Law, Instrument, lien or other Contract by which
▇▇▇▇▇▇ is bound. ▇▇▇▇▇▇ is not a party or subject to any
Contract, or subject to any article or other corporate
restriction or any Law which materially and adversely affect the
business operation, prospects, properties, assets or condition,
financial or otherwise, of ▇▇▇▇▇▇.
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(d) Litigation. There is no suit, action or litigation,
administrative, arbitration or other proceeding or governmental
investigation pending or, to the knowledge of ▇▇▇▇▇▇, threatened
which might, severally or in the aggregate materially and
adversely affect the financial condition or prospects of ▇▇▇▇▇▇
or ▇▇▇▇▇▇'▇ ability to acquire the Assets as contemplated by this
Agreement.
(e) Brokers. All negotiations relative to the Agreement and the
transactions contemplated hereby have been carried on by ▇▇▇▇▇▇
is such manner without giving rise to any valid claim against GDM
for a finder's fee, brokerage commission or other like payment.
Competition
Simultaneously with the execution of this Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ will execute and deliver to ▇▇▇▇▇▇ a Non-Competition
Agreement in the form and on the terms as set forth in Exhibit G1 and G2
attached hereto and incorporated by reference herein for all purposes.
Conditions to ▇▇▇▇▇▇'▇ Obligations
The obligations of ▇▇▇▇▇▇ hereunder are subject to the fulfillment, at or
prior to the Closing, of each of the following conditions, any or all of
which may be waived in writing by ▇▇▇▇▇▇, in its sole discretion:
(a) Accuracy of Representations and Warranties. Each of the
representations and warranties of GDM and Partner contained in
this Agreement shall be true on and as of the Closing Date with
the same force and effect as though made on and as of the Closing
Date, except as affected by transactions contemplated hereby.
(b) No Litigation or Claims. No claim, action, suit, proceeding,
arbitration, investigation or hearing or notice of hearing shall
be pending or threatened against or affecting GDM which: (a)
might foreseeably result, or has resulted, either in an action to
enjoin or prevent or delay the consummation of the transactions
contemplated by this Agreement or in such an injunction; or (b)
could, in the determination of ▇▇▇▇▇▇, have an adverse effect on
the assets to be transferred hereunder.
(c) No Violations. No material violation of GDM shall exist, or be
alleged by any governmental authority to exist, of any law,
statute, ordinance or regulation, the enforcement of which would
adversely affect the financial condition, results of operations,
properties or business of GDM.
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(d) Consents and Assignments. GDM shall have delivered to ▇▇▇▇▇▇ all
consents and assignments of all persons and entities necessary
for the performance of the transactions contemplated by this
Agreement, including the transfer of all assets and the
assignment of leases, and GDM shall have obtained the consents
of: any lender to GDM, or, in the alternative, the release of all
liens held by such lender, with respect to the sale and transfer
of the assets; and any other consents of third parties deemed
necessary or appropriate by ▇▇▇▇▇▇.
(e) Certificate. ▇▇▇▇▇▇ shall have received a certificate signed by
GDM and Partner, dated the Closing Date, satisfactory in form and
substance to ▇▇▇▇▇▇ and its counsel, certifying as to the
fulfillment of the conditions specified above.
(f) Satisfactory Completion of Due Diligence. ▇▇▇▇▇▇ shall be
satisfied in its sole discretion with the content of the final
Exhibits hereto and other related documents for closing and shall
otherwise be satisfied in its sole discretion with the results of
its due diligence review, including the right to terminate this
agreement with no penalty in the event that the land leases,
outdoor advertising permits and advertising contracts are not of
satisfactory condition to ▇▇▇▇▇▇.
Indemnification
(a) Indemnification of ▇▇▇▇▇▇ by GDM and Partner. GDM and Partner, jointly
and severally, agree to indemnify and hold harmless ▇▇▇▇▇▇ and any
person claiming by or through it or its successors and assigns from,
against and in respect of any and all losses, claims, and liabilities
incurred by or asserted against ▇▇▇▇▇▇ or its successors or assigns in
connection with;
(i) any breach of any representation or warranty of GDM or
Partner;
(ii) any breach of any covenant or agreement made by GDM or
Partner in Partner in this Agreement;
(iii)any liability, debt or obligation of GDM or lien or
encumbrance on the Assets or
(iv) any claim arising out of the use, sale or operation of the
Assets by GDM or Partner and/or the operation of the
business of GDM or Partner prior to the Closing.
(b) Indemnification of GDM and Partner by ▇▇▇▇▇▇. ▇▇▇▇▇▇ agrees to
indemnify and hold harmless GDM and Partner and any person claiming by
or through it or its successors and assigns from, against and in
respect of any and all losses, claims, and liabilities incurred by or
asserted against GDM or Partner or its successors or assigns in
connection with:
(i) any breach of any representation or warranty of ▇▇▇▇▇▇;
(ii) any breach of any covenant or agreement made by ▇▇▇▇▇▇ in
this Agreement;
(iii) any act or omission of ▇▇▇▇▇▇ after Closing, and
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(iv) any claim arising out of the use, sale or operation of the
Assets by ▇▇▇▇▇▇ and/or the operation of the business by
▇▇▇▇▇▇ after Closing.
(c) IF THE EVENT GIVING RISE TO SUCH INDEMNIFICATION OBLIGATION ARISES OUT
OF THE JOINT OR CONCURRENT NEGLIGENCE OF THE PERSON TO BE INDEMNIFIED
AND THE INDEMNIFYING PARTY, THE PERSON TO BE INDEMNIFIED SHALL BE
INDEMNIFIED TO THE EXTENT THAT THE INDEMNITOR'S NEGLIGENCE CAUSED SUCH
EVENT. IT IS THE INTENT OF THE PARTIES THAT BUYER SHALL BE ENTITLED TO
COMPARATIVE INDEMNIFICATION.
Taxes
Real Estate and personal property taxes, if any, assessed or to be assessed
for the current calendar or fiscal year, regardless of when payable, shall
be prorated between ▇▇▇▇▇▇ and GDM as of the closing date.
Risk of Loss
The risk of loss or destruction of or damage to the assets transferred
hereunder, including inventory, fixtures, equipment and real property from
any cause whatsoever at all times on or subsequent to the execution of this
document but before closing shall be borne by GDM.
▇▇▇▇▇▇'▇ Remedies
▇▇▇▇▇▇ shall be entitled, without limitation, to all incidental and
consequential damages resulting from a breach of any warranty or
representation or covenant of GDM or Partner made herein including, but not
limited to, all costs of litigation incurred, including reasonable
attorney's fees.
Dispute Resolution
(a) In the event of any dispute arising from this Agreement, the Parties
agree to attempt a solution through nonbinding mediation conducted by
a mutually agreed mediator. While the mediation shall be nonbinding in
all respects (except agreements in settlement of the dispute
negotiated by the Parties), each Party agrees that:
(i) it shall appear when directed by the mediator, be fully prepared
to work towards a resolution of the dispute, and participate in
good faith in the mediation towards a resolution of all disputed
issues or concerns; and
(ii) the duty to mediate in good faith shall be specifically
enforceable by the courts of Texas.
(b) Any questions, claims, disputes, or litigation arising from or related
to this Agreement are governed by the laws of the state of Texas
without regard to the principles of conflicts of law.
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(c) The Parties agree that Texas has a substantial relationship to this
transaction, and that this Agreement is performable in ▇▇▇▇▇ County,
Texas. Each Party consents to personal jurisdiction in the courts
thereof, and any action or suit arising from or related to this
Agreement shall only be brought by the Parties in any federal or state
court with appropriate jurisdiction over the subject matter
established or sitting in the state of Texas located in ▇▇▇▇▇ County,
Texas.
Miscellaneous
(a) Expenses. Except as otherwise provided herein, whether or not the
transactions contemplated by this Agreement are consummated, each
party hereto shall pay its own expenses and the fees and expenses of
its counsel and accountants and other experts. Furthermore, ▇▇▇▇▇▇
shall be responsible for payment to the business broker retained by
it.
(b) Survival of Representations and Warranties. The representations,
warranties, covenants and agreements set forth in this Agreement and
any other written representation in any ancillary document shall
survive the Closing.
(c) Waivers. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
(d) Binding Effect; Benefits. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
(e) Notices. All notices, requests, demands and other communications which
are required to be or may be given under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered in
person or transmitted by fax or five (5) days after deposit in the
U.S. mails by certified or registered first class mail, postage
prepaid, return receipt requested, addressed to the party to whom the
same is so given or made.
if to GDM or Partner to:
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
if to ▇▇▇▇▇▇ to:
▇▇▇▇▇▇ Outdoor Advertising and Travel Centers Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
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or to such other address or Fax Number as any party may designate by giving
notice to the other parties hereto.
(f) Further Assurances. The Company and Partner shall, from time to
time at or after the Closing, at the request of ▇▇▇▇▇▇, and
without further consideration, execute and deliver such other
instruments and take such other actions as may be required to
confer to ▇▇▇▇▇▇ and its assignees the benefits contemplated by
this Agreement.
(g) Entire Agreement. This document contains the entire agreement
between the parties and supersedes all prior agreements between
the parties, if any, written or oral, with respect to the subject
matter thereof.
AGREED and ACCEPTED:
▇▇▇▇▇▇ OUTDOOR ADVERTISING & TRAVEL CENTERS INCORPORATED
By:_/s/ ▇. ▇.▇▇▇▇
▇. ▇. ▇▇▇▇, Executive Vice President
GDM OUTDOOR ADVERTISING
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Partner
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Acknowledgment for Corporations
STATE OF TEXAS )
) ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ___ day of
__________________, 199___, by ▇. ▇. ▇▇▇▇, Executive Vice President of ▇▇▇▇▇▇
Outdoor Advertising & Travel Centers Incorporated, a Nevada Corporation, on
behalf of the corporation.
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Notary Public
My commission expires:
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Acknowledgment for Individuals
STATE OF TEXAS )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ___ day of
__________________, 199__ by ▇▇▇▇▇ ▇▇▇▇▇▇, Individually.
--------------------------------
Notary Public
My commission expires:
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STATE OF TEXAS )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ___ day of
_________________, 199__ by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Individually.
--------------------------------
Notary Public
My commission expires:
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