EXHIBIT 2.6
ASSET PURCHASE AGREEMENT
by and between
INFINITY BROADCASTING CORPORATION
and
ENTRAVISION COMMUNICATIONS CORPORATION
Dated as of June 14, 2000
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS................................................... 1
SECTION 2. PURCHASE AND SALE OF THE ASSETS; CLOSING...................... 1
2.1 Agreement to Purchase and Sell................................ 1
2.2 Purchased Assets.............................................. 1
2.3 Retained Assets............................................... 2
2.4 Agreement to Assume Certain Liabilities....................... 2
2.5 Excluded Liabilities.......................................... 3
2.6 Closing....................................................... 3
2.7 Purchase Price................................................ 3
2.8 Adjustment.................................................... 3
2.9 Transactions at the Closing................................... 4
2.10 Third-Party Consents.......................................... 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF INFINITY.................... 5
3.1 Organization and Good Standing................................ 5
3.2 Authority; No Conflict........................................ 5
3.3 Structures.................................................... 6
3.4 Permits, Site Leases and Advertising Contracts................ 6
3.5 Title, Encumbrances........................................... 7
3.6 Owned Real Property........................................... 7
3.7 Environmental Matters......................................... 7
3.8 Absence of Changes............................................ 7
3.9 Litigation and Compliance with Laws........................... 7
3.10 Tax Matters................................................... 8
3.11 1999 Revenue.................................................. 8
3.12 "30-Sheet" Structures......................................... 8
3.13 Brokers or Finders............................................ 8
3.14 LIMITED WARRANTIES............................................ 8
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER....................... 8
4.1 Organization and Good Standing................................ 8
4.2 Authority; No Conflict........................................ 9
4.3 Qualifications................................................ 9
4.4 Due Diligence; Reliance on Buyer's Experts.................... 9
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TABLE OF CONTENTS
(continued)
Page
4.5 Brokers or Finders............................................ 9
SECTION 5. COVENANTS OF INFINITY......................................... 10
5.1 Access and Investigation...................................... 10
5.2 Approvals and Consents........................................ 10
5.3 Best Efforts.................................................. 10
5.4 Conduct of the Business Pending Closing....................... 10
5.5 Surveys of Owned Real Property and Environmental Matters...... 11
SECTION 6. COVENANTS OF BUYER............................................ 11
6.1 Required Approvals............................................ 11
6.2 Best Efforts.................................................. 11
6.3 Imprints...................................................... 11
6.4 Releases...................................................... 12
6.5 No Employment of Business Employees by Buyer.................. 12
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER.................. 12
7.1 Accuracy of Representations................................... 12
7.2 Infinity's Performance........................................ 12
7.3 Transfer Instruments.......................................... 12
7.4 Officer's Certificate......................................... 12
7.5 Secretary's Certificate....................................... 12
7.6 DOJ Consent................................................... 12
7.7 No Prohibition................................................ 13
SECTION 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF INFINITY............... 13
8.1 Accuracy of Representations................................... 13
8.2 Buyer's Performance........................................... 13
8.3 Assumption Instruments........................................ 13
8.4 Officer's Certificate......................................... 13
8.5 Secretary's Certificate....................................... 13
8.6 DOJ Consent................................................... 13
8.7 No Prohibition................................................ 13
SECTION 9. TERMINATION................................................... 14
9.1 Termination Events............................................ 14
9.2 Effect of Termination......................................... 14
ii
TABLE OF CONTENTS
(continued)
Page
SECTION 10. INDEMNIFICATION; REMEDIES.................................... 15
10.1 Indemnification and Payment of Damages by Infinity........... 15
10.2 Indemnification and Payment of Damages by Buyer.............. 15
10.3 Procedure for Indemnification - Third-Party Claims........... 15
10.4 Procedure for Indemnification - Other Claims................. 16
10.5 Survival and Limitations..................................... 16
10.6 Exclusive Remedies........................................... 16
SECTION 11. GENERAL PROVISIONS........................................... 17
11.1 Expenses..................................................... 17
11.2 Bulk Sales Waiver............................................ 17
11.3 Public Announcements; Confidentiality........................ 17
11.4 Notices...................................................... 17
11.5 Further Assurances........................................... 18
11.6 Waiver....................................................... 18
11.7 Entire Agreement and Modification............................ 18
11.8 Assignments, Successors, and No Third-Party Rights........... 19
11.9 Severability................................................. 19
11.10 Post-Closing Access.......................................... 19
11.11 Headings; Construction....................................... 19
11.12 Applicable Law and Jurisdiction.............................. 19
11.13 Counterparts................................................. 20
11.14 Limited Non-Competition...................................... 20
iii
TABLE OF CONTENTS
(continued)
EXHIBITS
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Exhibit A - Definitions
Exhibit B - Allocation of Purchase Price
Exhibit C - Form of ▇▇▇▇ of Sale, Assignment and Assumption Agreement
SCHEDULES
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Schedule 2.2(a) - Billboard Displays
Schedule 2.2(b) - Site Leases
Schedule 2.2(c) - Advertising Contracts
Schedule 2.2(d) - Wireless Communications Contracts
Schedule 2.2(e) - Owned Real Property
Schedule 2.2(h) - Tangible Personal Property
Schedule 2.8(b)(i) - Excluded Site Leases
Schedule 2.8(b)(ii) - Adjustment Calculations
Schedule 5.2 - Best Efforts Consents
DISCLOSURE SCHEDULE
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Part 3.2 - No Conflicts
Part 3.3 - Location of Structures
Part 3.4 - Material Defaults Under Site Leases and Advertising
Contracts
Part 3.5 - Encumbrances
Part 3.7 - Environmental Matters
Part 3.8(b) - List of Certain Assets
Part 3.9(a) - Orders, Proceedings and Defaults
Part 3.9(b) - Active Proceedings
iv
EXECUTION COPY
ASSET PURCHASE AGREEMENT
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This Asset Purchase Agreement (this "Agreement") is entered into as of the
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14th day of June, 2000, by and among ENTRAVISION COMMUNICATIONS CORPORATION, a
Delaware corporation ("Buyer"), and INFINITY BROADCASTING CORPORATION, a
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Delaware corporation ("Infinity," and together with the Seller Subsidiaries (as
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defined below), the "Sellers"). (Buyer and Infinity are sometimes herein
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referred to individually as a "Party" and collectively as the "Parties").
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RECITALS
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Infinity is engaged, through the Seller Subsidiaries, in the business of
(i) owning and operating certain outdoor signs and billboards as set forth in
Section 2.2 hereof and otherwise providing outdoor advertising services with
respect to such outdoor signs and billboards set forth in Section 2.2 hereof in
the New York City area (the "Business"). Infinity is a signatory to that
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certain Stipulation and Order filed December 6, 1999 in the U.S. District Court
for the District of Columbia, United States v. CBS Corporation, Infinity
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Broadcasting Corporation and Outdoor Systems Inc., Civil Action No. 99-3212,
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providing for entry of the proposed Final Judgement in this matter (the "Final
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Judgment"), and concerning the divestiture of certain assets of Sellers,
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including the assets which are the subject of this Agreement. Sellers desire to
sell and assign certain outdoor advertising assets to Buyer as set forth in
Section 2.2 hereof, 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 and subject
to the Final Judgment.
AGREEMENT
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The Parties, intending to be legally bound, agree as follows:
SECTION 1. DEFINITIONS
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For purposes of this Agreement, the terms listed on Exhibit A attached
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hereto have the meanings specified or referred to in Exhibit A.
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SECTION 2. PURCHASE AND SALE OF THE ASSETS; CLOSING
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2.1 Agreement to Purchase and Sell. Subject to the terms and conditions
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of this Agreement (including, without limitation, Section 2.10 hereof), Sellers
hereby agree 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 (other than Permitted Liens and
except as otherwise specifically permitted pursuant to the provisions of this
Agreement), and Buyer hereby agrees to buy and acquire the Purchased Assets from
Sellers, 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 following
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assets of Sellers used in the Business (the "Purchased Assets"):
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(a) all of the billboard displays and other out-of-home advertising
structures (including rights to walls) set forth and described in Schedule
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2.2(a) attached hereto, together with all components, fixtures, parts,
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appurtenances, and equipment attached to or made a part thereof that are
existing, under construction or for which Sellers have 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 listed on Schedule 2.2(b) attached hereto (collectively, the "Site
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Leases"), and all rights of Sellers in and to such Site Leases;
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(c) all rights under existing and pending sales of advertising and
advertising contracts listed on Schedule 2.2(c) attached hereto (collectively,
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the "Advertising Contracts") to the extent associated with the Structures as of
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the Closing Date, and all other existing advertising contracts to the extent
associated with the Structures entered into on or prior to the Closing Date;
(d) all rights under existing wireless communications contracts for
antennae attached to the Structures, which wireless communications contracts are
listed on Schedule 2.2(d) attached hereto;
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(e) all of the real property owned in fee by Sellers and utilized in
the Business (the "Owned Real Property") and all structures located thereon, in
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each case as listed on Schedule 2.2(e) attached hereto;
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(f) any state and local licenses or permits/tags which Sellers have as
of the Closing Date with respect to the Structures or the other Purchased
Assets, to the extent assignable (collectively, the "Permits");
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(g) all pertinent Books and Records;
(h) the tangible personal property owned by Sellers and used
exclusively in the operation of the Business listed on Schedule 2.2(h) attached
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hereto; and
(i) all rights (including any benefits arising therefrom), causes of
action, claims and demands of whatever nature (whether or not liquidated) of
Sellers 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.
2.3 Retained Assets. The assets of Sellers which are not included in
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Section 2.2 hereof are expressly excluded from the Purchased Assets and shall be
retained by Sellers (the "Retained Assets").
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2.4 Agreement to Assume Certain Liabilities. At the Closing, Buyer
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shall assume, effective as of the Closing Date, and agree to discharge and
perform only the following liabilities and obligations of Sellers relating to
the Purchased Assets or the conduct of the Business that accrue and are
attributable to or arise from facts, events, or conditions that occur after the
Closing Date (the "Assumed Liabilities"):
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(a) all obligations under the Site Leases;
(b) all obligations under the Advertising Contracts;
(c) all obligations arising under any Proceedings relating to the
Purchased Assets; and
(d) all other liabilities and obligations relating to the Purchased
Assets.
2.5 Excluded Liabilities. All claims against and liabilities and
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obligations of Sellers relating to the Business and the Purchased Assets not
specifically assumed by Buyer pursuant to Section 2.4 (the "Excluded
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Liabilities"), including, without limitation, the following claims against and
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liabilities of Sellers, are excluded and shall not be assumed or discharged by
Buyer:
(a) any liabilities of Sellers relating to the Retained Assets;
(b) any liabilities of Sellers for Taxes and for mechanic's,
materialmen's and similar liens relating to the conduct of the Business that
accrued and are attributable to or arose from facts, events, or conditions that
occurred on or prior to the Closing Date;
(c) any liabilities for or related to indebtedness of Sellers to
banks, financial institutions, or other Persons; and
(d) any liabilities of Sellers with respect to claims that accrued and
are attributable to or arose from facts, events, or conditions that occurred on
or prior to the Closing Date.
2.6 Closing. The purchase and sale of the Purchased Assets (the
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"Closing") provided for in this Agreement will take place at the offices of
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Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 a.m.,
on the earlier to occur of (i) sixty (60) days after the Buyer's Registration
Statement on Form S-1 (Registration No. 333-35336), initially filed on April 20,
2000, is declared effective under the 1933 Act or (ii) September 15, 2000;
provided, that all conditions to the respective obligations of the Parties have
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been satisfied or waived, or at such other time, date and place as the Parties
may agree.
2.7 Purchase Price. In consideration for the Purchased Assets, Buyer
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shall assume the Assumed Liabilities, and pay an amount (the "Purchase Price")
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equal to One Hundred Sixty-Eight Million Two Hundred Fifteen Thousand Dollars
($168,215,000), as adjusted pursuant to the provisions of Section 2.8 hereof.
2.8 Adjustment. The Purchase Price shall be subject to adjustment as
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follows:
(a) The following items shall be prorated between Sellers and Buyer as
of the Closing Date with respect to the Purchased Assets: power and utility
charges, personal property taxes, rents (including percentage rents) and
security deposits under Site Leases and advertising revenues 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. At least one (1) business day prior to the Closing Date, Infinity
shall provide to Buyer a list of items and the prorations required by this
Section 2.8(a) ("Preliminary Adjustment") and the Purchase Price shall be
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adjusted accordingly.
(b) In the event that on the Closing Date any Designated Site Lease
has been terminated in its entirety (such that it is no longer of any force or
effect as of the Closing Date), the Purchase Price shall be reduced with respect
to such terminated Designated Site Lease by the amount determined in accordance
with the calculations set forth in Schedule 2.8(b)(ii).
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(c) Within seventy-five (75) days after the Closing Date, Buyer will
prepare and provide to Infinity the final calculations of adjustments to the
Purchase Price (the "Closing Date Adjustment"). On the 90/th/ day after the
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Closing Date, all required refunds or payments under this Section 2.8, shall be
made on the basis of the Closing Date Adjustment; provided, however, that if any
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dispute arises over any amount to be refunded or paid under this Section, 2.8(c)
such refund or payment shall nonetheless be promptly made to the extent such
amount is not in dispute. If any such dispute cannot be resolved by the
Parties, it shall be referred to a mutually satisfactory independent public
accounting firm of national stature that has not been employed by any Party
during the two (2) years preceding the Closing Date. The determination of such
firm shall be conclusive and binding on each Party. The fees of such firm shall
be paid fifty percent (50%) by Infinity and fifty percent (50%) by Buyer.
(d) The Parties agree that the Purchase Price shall be allocated as
set forth in Exhibit B attached hereto for completing the Form 8594 required to
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be filed with the IRS. The Parties further agree to use such allocations for
reporting the purchase and sale of the Purchased Assets for federal, state and
local Tax purposes and not to take any position with any Governmental Body which
is inconsistent with such allocation unless required to do so in accordance with
a final determination of a Governmental Body.
2.9 Transactions at the Closing. The following transactions shall take
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place at the Closing:
(a) Sellers shall deliver to Buyer (i) the ▇▇▇▇ of Sale, Assignment
and Assumption Agreement; (ii) a deed for each parcel of Owned Real Property
conveying good and valid title to Buyer; (iii) subject to Section 2.10 hereof,
separate written assignments of the Site Leases executed by the applicable
Seller Subsidiary; (iv) wire transfer instructions for the payment of the
Purchase Price which shall be provided to Buyer in writing no later than two (2)
business days prior to the Closing; (v) to the extent applicable, UCC-3
termination statements and other necessary releases signed by the appropriate
parties releasing all Encumbrances, other than Permitted Liens, against the
Purchased Assets and (vi) other instruments of transfer, evidence of required
consents and other related documents as may be necessary to evidence or perfect
the sale, assignment, transfer, and conveyance of all of Sellers' right, title
and interest in and to all of the Purchased Assets, in each case free and clear
of all Security Interests and Encumbrances, other than Permitted Liens. Sellers
shall also deliver to Buyer all pertinent Books and Records.
(b) Buyer shall deliver to Infinity the Purchase Price, as adjusted
pursuant to Section 2.8(a), by wire transfer of immediately available funds.
(c) Buyer shall deliver to Infinity (i) the ▇▇▇▇ of Sale, Assignment
and Assumption Agreement and (ii) such assumption agreements, instructions 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, certificates, and other documents referred to in this Agreement.
2.10 Third-Party Consents. To the extent that Sellers' rights under any
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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 Sellers and Buyer, to the maximum extent permitted by law and any
terms of or limitations relating to such Purchased 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
Purchased Asset in any reasonable arrangement designed to provide such benefits
to Buyer, including any sublicense, sublease or subcontract, escrow or similar
arrangement. Upon Buyer and Sellers obtaining such consents or entering into a
reasonable arrangement designed to provide such benefits to Buyer, Buyer shall
discharge Sellers' obligations under such Advertising Contract, Site Lease or
other interest in the Purchased Assets benefiting Buyer arising from and after
the Closing Date. In the event that Sellers receive any rents, revenues,
security deposits or any other dollar amounts, notices or documents under any
such Advertising Contract, Site Lease or other interest in the Purchased Assets
after the Closing Date, Sellers shall remit the applicable amounts, notices or
documents to Buyer within five (5) business days of receipt thereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF INFINITY
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Infinity hereby represents and warrants to Buyer as follows:
3.1 Organization and Good Standing. Infinity is a corporation duly
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organized, validly existing and in good standing under the laws of its state of
incorporation, with full power and authority to conduct its business as it is
now being conducted, to own or use the Purchased Assets, and to perform all its
obligations in connection with the Purchased Assets. Infinity and the
applicable Seller Subsidiaries are duly qualified or licensed to do business in
each jurisdiction in which the Purchased Assets are owned, leased or operated by
them, except where the failure to be so qualified or licensed would not have a
Material Adverse Effect. The Seller Subsidiaries are directly or indirectly
wholly owned by Infinity.
3.2 Authority; No Conflict.
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(a) This Agreement constitutes the legal, valid, and binding
obligation of Infinity, enforceable against it in accordance with its terms
(except as the enforceability thereof may be limited by any applicable
bankruptcy, insolvency or other laws affecting creditors' rights generally or by
general principles of equity, regardless of whether such enforceability is
considered in equity or at law). Infinity has all requisite corporate power and
authority to
execute and deliver this Agreement and the other documents contemplated hereby
(the "Closing Documents"), to perform its obligations hereunder and thereunder,
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and to consummate the Contemplated Transactions. The applicable Seller
Subsidiaries have all requisite corporate power and authority to execute and
deliver the Closing Documents to which each such Seller Subsidiary is a party,
to perform their respective obligations under this Agreement and the Closing
Documents to which each such Seller Subsidiary is a party, and to consummate the
Contemplated Transactions.
(b) Except as set forth in Part 3.2 of the Disclosure Schedules, the
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execution, delivery and performance of this Agreement by Infinity will not, and
the execution, delivery and performance by the Seller Subsidiaries of the
Closing Documents to which they are a party will not: (i) conflict with, violate
or result in any material breach of any provision of the respective
Organizational Documents of Sellers, (ii) result in a default (or give rise to
any right of termination, modification, cancellation or acceleration) under, or
conflict with, any of the terms, conditions or provisions of any Contract to
which one or more of Sellers is a party or by which the Purchased Assets may be
bound, which default, termination, modification, cancellation, acceleration or
conflict would have a Material Adverse Effect, (iii) subject to compliance with
the Final Judgment, conflict with or violate any Legal Requirement applicable to
Sellers, the Purchased Assets or the Business, which conflict or violation would
have a Material Adverse Effect, (iv) subject to compliance with the Final
Judgment, conflict with or violate any Governmental Authorization held by
Sellers or that otherwise relates to the Purchased Assets or the Business, which
conflict or violation would have a Material Adverse Effect or (v) result in the
creation or imposition of any Security Interest on any of the Purchased Assets.
(c) Except as set forth in Part 3.2 of the Disclosure Schedules,
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Sellers are not 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, except for
any such notice or Consent which, if not given or obtained, would not,
individually or in the aggregate, have a Material Adverse Effect.
3.3 Structures. Except as set forth in Part 3.3 of the Disclosure
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Schedules, (i) Sellers own all of the Structures and (ii) to Infinity's
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knowledge, each Structure is located entirely on property covered by a Site
Lease or is located entirely on the Owned Real Property. Since January 1, 2000,
the Purchased Assets hereunder have been maintained in accordance with Sellers'
usual and customary practices.
3.4 Permits, Site Leases and Advertising Contracts. Sellers have made
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available to Buyer true and complete copies of the Permits, the Site Leases and
the Advertising Contracts (including any files maintained by Sellers relating
exclusively to such Permits, Site Leases and Advertising Contracts, as
applicable). Except (i) for the impact of any violation by Sellers of the
Permits or the failure of Sellers to obtain any Governmental Authorization
required under the Site Leases, the Advertising Contracts or by applicable Legal
Requirement or (ii) as set forth in Part 3.4 of the Disclosure Schedules,
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Sellers are not (and to Infinity's knowledge, no other party is) in default of
any material provision of, nor is in default in any material respect under the
terms of, any of the Site Leases or the Advertising Contracts which default, if
not cured or waived, would have a Material Adverse Effect. Each of the Site
Leases and the Advertising
Contracts are valid and binding obligations of Infinity or the applicable Seller
Subsidiaries enforceable in accordance with their terms.
3.5 Title, Encumbrances. Except as set forth in Part 3.5 of the
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Disclosure Schedules, Sellers have good title to all of the Purchased Assets,
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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.
Except as set forth in Part 3.5 of the Disclosure Schedules, all of the
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Purchased Assets, including the Owned Real Property, are owned free and clear of
all Encumbrances except for (i) Permitted Liens, (ii) liens securing Sellers'
obligations for borrowed money, which shall be released prior to Closing and
(iii) Encumbrances which, individually or in the aggregate, would not have a
Material Adverse Effect.
3.6 Owned Real Property. Each Seller Subsidiary has good and valid title
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to the Owned Real Property owned by it. Sellers have not received any written
notice of pending or Threatened claims, condemnation or eminent domain
proceedings or other Proceedings, planned public improvements, annexations,
special assessments, rezonings or other adverse claims affecting the Owned Real
Property, except as would not otherwise reasonably be expected to have a
Material Adverse Effect.
3.7 Environmental Matters. Except as set forth in Part 3.7 of the
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Disclosure Schedules or as would not otherwise reasonably be expected to have a
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Material Adverse Effect, with respect to the Purchased Assets and the use or
operation thereof: (i) Sellers and the Purchased Assets are in compliance with
all Environmental Laws and (ii) to Infinity's knowledge, Sellers have not
received any written notice from any Governmental Body or private or public
entity advising them that they are 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, the Business.
3.8 Absence of Changes.
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(a) Other than in connection with the proposed transactions
contemplated by this Agreement and except as disclosed in the Disclosure
Schedules, since January 1, 2000, there has not been (i) any material change in
the financial condition, business or operating results of Infinity with respect
to the Business or (ii) any loss or damage (whether or not covered by insurance)
to any of the Purchased Assets which materially affects or materially impairs
Infinity's ability to conduct the Business as currently conducted on the date
hereof.
(b) Part 3.8(b) of the Disclosure Schedules sets forth a list of
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certain assets which, had this Agreement been entered into as of December 31,
1999, would have constituted Site Leases under the terms of this Agreement, but
do not constitute Site Leases hereunder due to the fact that such leases have
expired in accordance with their terms (and have not been renewed) or have been
otherwise terminated prior to the date hereof.
3.9 Litigation and Compliance with Laws.
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(a) Subject to the Final Judgment and compliance therewith and except
(i) as disclosed in Part 3.9(a) of the Disclosure Schedules or (ii) for the
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impact of any violation by Sellers of the Permits or the failure of Sellers to
obtain any Governmental Authorization required
by applicable Legal Requirement, Sellers have not been operating the Business
under or subject to, or in material default with respect to, any Order or
Proceeding other than such Orders or such Proceedings or such defaults, as the
case may be, which, individually or in the aggregate, would not have a Material
Adverse Effect.
(b) Part 3.9(b) of the Disclosure Schedules lists all active
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Proceedings relating to Sellers' conduct of the Business, except for active
Proceedings relating to alleged violations by Sellers of the Permits or alleged
failures of Sellers to obtain any Governmental Authorization required by
applicable Legal Requirement.
3.10 Tax Matters. For all periods ending prior to or on, and including,
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the Closing Date, Sellers have duly paid, caused to be paid, or made provision
for the payment of and will timely pay, all Taxes for which the non-payment of
would (i) result in an Encumbrance, other than a Permitted Lien, on any of the
Purchased Assets, (ii) have a Material Adverse Effect on the Business or on any
of the Purchased Assets or (iii) result in Buyer becoming liable therefor.
3.11 1999 Revenue. Net revenue of outdoor advertising space (net of
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agency or any other commissions) of the business of Seller relating to the
Purchased Assets (as conducted by Sellers or any predecessors thereto during the
period referred to in this Section 3.11 and including the assets comprising such
business as of and for such periods) for the 12-month period ending December 31,
1999, was not less than Twenty-Two Million Dollars ($22,000,000).
3.12 "30-Sheet" Structures. Those Structures that constitute "30-sheet
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structures" (as such term is customarily used in the outdoor advertising
industry) represent all of the "30-sheet structures" in New York City, New York
which Sellers own or otherwise have rights to use as of the date hereof in
connection with the operation of the Business.
3.13 Brokers or Finders. Except for Brush & ▇▇▇▇▇▇, LLC whose compensation
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shall be the sole and exclusive responsibility of Infinity at the Closing,
Infinity 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.
3.14 LIMITED WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE
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PURCHASED ASSETS ARE BEING SOLD "AS IS, WHERE IS," WITH NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND, AND SELLERS EXPRESSLY DISCLAIM ALL OTHER EXPRESS OR
IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF INCOME POTENTIAL, OPERATING
EXPENSE, USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY OR
CONDITION.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer hereby represents and warrants to Infinity as follows:
4.1 Organization and Good Standing. Buyer is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of its state of
incorporation, with full power and authority to own or lease its properties,
carry on its business as presently conducted and to
perform all its obligations. Buyer is duly qualified or licensed to do business
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,
except where the failure to be so qualified or licensed would not have a
material adverse effect on Buyer's business, financial condition or operations.
4.2 Authority; No Conflict.
----------------------
(a) This Agreement constitutes the legal, valid, and binding
obligation of Buyer, enforceable against it in accordance with its terms (except
as the enforceability thereof may be limited by any applicable bankruptcy,
insolvency or other laws affecting creditors' rights generally or by general
principles of equity, regardless of whether such enforceability is considered in
equity or at law). Buyer has all requisite corporate power and authority to
execute and deliver this Agreement and the Closing Documents, to perform its
obligations hereunder and thereunder, and to consummate the Contemplated
Transactions.
(b) Neither the execution and delivery by Buyer of this Agreement nor
the consummation or performance by Buyer of any of the Contemplated Transactions
will conflict with, violate or result in a breach of (i) any provision of the
Organizational Documents of Buyer, (ii) subject to compliance with the Final
Judgment, any Legal Requirement or any Order to which Buyer may be subject, or
(iii) any material Contract to which Buyer is a party or by which Buyer may be
bound.
(c) Buyer is not required to give any notice to or obtain any Consent
from any Person (other than the DOJ pursuant to the Final Judgment) in
connection with the execution and delivery of this Agreement or the consummation
or performance of any of the Contemplated Transactions.
4.3 Qualifications. To Buyer's knowledge, Buyer is, for purposes of (a)
--------------
obtaining the Consent from the DOJ to consummation of the Contemplated
Transactions and (b) the entry of the Final Judgment by the U.S. District Court,
legally, financially and otherwise qualified to purchase, use and otherwise
possess the Purchased Assets and assume, perform and discharge the Assumed
Liabilities.
4.4 Due Diligence; Reliance on Buyer's Experts. Prior to Buyer's
------------------------------------------
execution and delivery of this Agreement, Buyer has conducted such due diligence
activities and investigations in connection with the Purchased Assets as Buyer
deems reasonable or necessary and, in connection with such activities and
investigations, Buyer has relied on its own financial, legal and other experts
and advisors in arriving at Buyer's decision to execute, deliver and consummate
this Agreement and the Contemplated Transactions. Buyer is not relying on any
representations, warranties or covenants of Sellers except as expressly set
forth in this Agreement, the Disclosure Schedules hereto and in the other
agreements executed and delivered by Sellers in connection with the Contemplated
Transactions.
4.5 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.
SECTION 5. COVENANTS OF INFINITY
---------------------
5.1 Access and Investigation. Between the date of this Agreement and
------------------------
the Closing Date, Infinity shall, and shall cause the Seller Subsidiaries and
each of its and their Representatives to, afford Buyer and its Representatives
reasonable access during normal business hours to Sellers' personnel,
properties, Books and Records, and other documents and data relating to the
Purchased Assets and the Business.
5.2 Approvals and Consents. As promptly as practicable after the date
----------------------
of this Agreement, Infinity shall, and shall cause the Seller Subsidiaries to,
make all filings required by Legal Requirements to be made by it and them and to
take all actions required to be taken by it or them under the Final Judgment, in
order to consummate the Contemplated Transactions and shall, and shall cause the
Seller Subsidiaries to, use its and their Best Efforts to obtain all
Governmental Authorizations required for the Contemplated Transactions,
including those required pursuant to the Final Judgment or otherwise identified
in Section 3.2. Between the date of this Agreement and the Closing Date,
Infinity shall, and shall cause the Seller Subsidiaries to, use its and their
Best Efforts to assist Buyer in obtaining the Consents identified on Schedule
--------
5.2 (the "Designated Consents") for the transfer of the Purchased Assets. In
--- -------------------
addition to any obligations of Sellers under Section 2.10 hereof, for a period
of three (3) months from and after the Closing Date, Infinity shall, and shall
cause the Seller Subsidiaries to, use its and their Best Efforts to assist Buyer
in its efforts to obtain those Designated Consents which were not otherwise
obtained prior to the Closing Date. In furtherance of the foregoing, Infinity
shall, and shall cause the Seller Subsidiaries to, take all reasonable steps
necessary to secure the approval of the DOJ for the proposed divestiture of the
Purchased Assets to Buyer pursuant to the Final Judgment, including, but not
limited to, (i) responding to all requests for information by the DOJ to
Infinity or the Seller Subsidiaries concerning the proposed divestiture of the
Purchased Assets to Buyer and (ii) cooperating with the DOJ in any investigation
of the proposed divestiture that the DOJ may conduct and in any efforts by the
DOJ to ensure compliance with the Final Judgment and the ▇▇▇▇▇▇ Act.
5.3 Best Efforts. Between the date of this Agreement and the Closing
------------
Date, Infinity will, and will cause the Seller Subsidiaries to, use its and
their Best Efforts to cause the conditions in SECTION 7 and SECTION 8 to be
satisfied.
5.4 Conduct of the Business Pending Closing. From the date hereof to the
---------------------------------------
Closing, Infinity (on behalf of itself and the Seller Subsidiaries) covenants
and agrees to operate the Business in the ordinary and usual course in
accordance with Sellers' past custom and practice and to use its and their
reasonable Best Efforts to preserve intact the Business and relationships with
suppliers and customers of the Business. Except as otherwise contemplated by
this Agreement or consented to in writing by Buyer, Infinity (on behalf of
itself and the Seller Subsidiaries) covenants and agrees that, until the
Closing:
(a) it shall maintain insurance coverage with respect to the Business
at presently existing levels so long as such insurance is available at
commercially reasonable rates;
(b) other than in Sellers' ordinary and usual course of business, it
shall not, with respect to the Business, incur any material liabilities
(including, but not limited to,
arrangements to receive services or property other than cash in exchange for
advertising to be made by Sellers on the Purchased Assets) which would
constitute Assumed Liabilities hereunder;
(c) it shall provide reasonable notice to Buyer of renewals,
extensions and expirations of any Site Leases;
(d) it shall not sell any Purchased Assets or make any commitment
relating to the sale of any Purchased Assets other than in Sellers' ordinary and
usual course of business or pursuant to this Agreement; and
(e) it shall use its Best Efforts to renew any Site Lease expiring
during the period between the date hereof and the Closing.
5.5 Surveys of Owned Real Property and Environmental Matters. With
--------------------------------------------------------
respect to each Owned Real Property as to which an owner's title insurance
policy is to be procured, Infinity will, and will cause the Seller Subsidiaries
to, use its and their Best Efforts to (i) assist Buyer in the procurement of a
current land title survey of the Owned Real Property and (ii) assist Buyer in
obtaining Phase I Environmental Site Assessments ("ESA's") of the Owned Real
-----
Property, and, to the extent reasonably required (as determined by an
environmental consultant or engineer reasonably satisfactory to Buyer and
Infinity), Phase II ESA's. Notwithstanding anything herein to the contrary,
Buyer shall be solely responsible for all costs and expenses associated with any
such title surveys or ESA's and will indemnify and hold harmless Sellers with
respect thereto.
SECTION 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
identified in Part 3.2 of the Disclosure Schedules to be made by it to
------------------------------------
consummate the Contemplated Transactions and will use its Best Efforts to obtain
all Governmental Authorizations identified in Section 3.2, including those
required by the Final Judgment. In furtherance of the foregoing, Buyer shall
use its Best Efforts to assist Sellers in obtaining the approval of the DOJ for
the proposed divestiture of the Purchased Assets to Buyer pursuant to the Final
Judgment, including, but not limited to, (i) responding to all requests for
information by the DOJ to Buyer concerning Buyer and the proposed divestiture of
the Purchased Assets to Buyer; (ii) cooperating with the DOJ in any
investigation of the proposed divestiture that the DOJ may conduct and in any
efforts by the DOJ to ensure compliance with the Final Judgment and the ▇▇▇▇▇▇
Act; and (iii) subject to such confidentiality restrictions as may be reasonably
negotiated, coordinating and cooperating with Sellers in exchanging such
information and rendering such reasonable assistance to Sellers as Sellers may
request in connection with this approval process.
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 SECTION 7 and
SECTION 8 to be satisfied.
6.3 Imprints. No later than ninety (90) days after the Closing, Buyer
--------
shall remove from all Structures included in the Purchased Assets all imprints
used by Sellers containing Sellers' trade names or the trade names of any of
Sellers' Affiliates.
6.4 Releases. Prior to Closing, Buyer shall (a) obtain releases of
--------
Sellers from any and all obligations or agreements for letters of credit, bonds,
surety arrangements and all guarantees or similar assurances which give rise to
a liability of Sellers for obligations related to the Purchased Assets, and
Buyer shall have replaced all such agreements held by third parties, or (b)
deliver to Sellers separate letters of credit, bonds and/or other surety
arrangements which provide complete and total indemnity for such obligations of
Sellers that are not released which arrangements must be in form acceptable to
Sellers.
6.5 No Employment of Business Employees by Buyer. Sellers and Buyer
--------------------------------------------
expressly acknowledge and agree that Buyer will not employ any of Sellers'
employees relating to the Business and Sellers shall remain fully responsible
for, and hold harmless Buyer with respect to, any and all salary, bonus,
benefits or any other obligations owed to all such employees.
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
--------------------------------------------
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 in writing by Buyer in whole or in part, to the
extent permitted by applicable law).
7.1 Accuracy of Representations. Infinity'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.
7.2 Infinity's Performance. The covenants and obligations that Infinity
----------------------
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.
7.3 Transfer Instruments. Buyer shall have received from Infinity and
--------------------
the applicable Seller Subsidiaries an executed ▇▇▇▇ of Sale, Assignment and
Assumption Agreement and such other instruments as may be necessary to evidence
or perfect the sale, assignment, transfer and conveyance of good title to all of
the Purchased Assets, all in form and substance reasonably satisfactory to
Buyer.
7.4 Officer's Certificate. Buyer shall have received a certificate,
---------------------
dated as of the Closing Date, signed by an authorized officer of Infinity, to
the effect that the conditions set forth in Sections 7.1 and 7.2 have been
satisfied.
7.5 Secretary's Certificate. Infinity shall have delivered to Buyer (i)
-----------------------
a copy of a resolution adopted by the board of directors of Infinity and (ii)
copies of resolutions adopted by the boards of directors or stockholder(s) of
the applicable Seller Subsidiaries, in each such case authorizing the
transactions contemplated by this Agreement, certified by a Secretary or
Assistant Secretary of Infinity.
7.6 DOJ Consent. All authorizations and consents required to be
-----------
obtained by Infinity from the United States Department of Justice (the "DOJ")
---
under the Final Judgment shall have been received by Infinity.
7.7 No Prohibition. There must not be in effect any Legal Requirement
--------------
or any injunction or other Order that prohibits the consummation of the
Contemplated Transactions, and all requirements of the Final Judgment shall have
been satisfied, including, without limitation, (i) receipt by Infinity, in a
form satisfactory to Infinity, of notice from the DOJ that the DOJ does not
object to the proposed divestiture of the Purchased Assets to Buyer pursuant to
the terms of the Final Judgment; (ii) entry of the Final Judgment by the U.S.
District Court pursuant to the ▇▇▇▇▇▇ Act, and either (a) the expiration of all
applicable time periods for further review of the Final Judgment, or (b) a
determination by Infinity that further review is unlikely and (iii) compliance
with the terms of the Final Judgment and the requirements of the ▇▇▇▇▇▇ Act.
SECTION 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF INFINITY
-----------------------------------------------
Infinity's obligation to sell or cause to be sold the Purchased Assets and
Infinity's obligations to take or cause to be taken the other actions required
to be taken by Sellers 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 in writing by Infinity in whole or in part, to the extent permitted by
applicable law).
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.
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.
8.3 Assumption Instruments. Infinity shall have received from Buyer an
----------------------
executed ▇▇▇▇ of Sale, Assignment and Assumption Agreement and such other
instruments as may be necessary to evidence and effect Buyer's assumption of the
Assumed Liabilities, all in form and substance reasonably satisfactory to
Infinity.
8.4 Officer's Certificate. Infinity shall have received a certificate,
---------------------
dated as of the Closing Date, signed by an authorized officer of Buyer, to the
effect that the conditions set forth in Sections 8.1 and 8.2 have been
satisfied.
8.5 Secretary's Certificate. Buyer shall have delivered to Infinity a
-----------------------
copy of a resolution adopted by the board of directors and, if necessary,
stockholders of Buyer, authorizing the transactions contemplated by this
Agreement, certified by a Secretary or Assistant Secretary of Buyer.
8.6 DOJ Consent. All authorizations and consents required to be
-----------
obtained by Infinity from the DOJ under the Final Judgment, shall have been
received by Infinity.
8.7 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, and all requirements of the Final Judgment shall
have been satisfied, including, without limitation, (i) receipt by Infinity, in
a form satisfactory to Infinity, of notice from the DOJ that the DOJ does not
object to the proposed divestiture of the Purchased Assets to Buyer
pursuant to the terms of the Final Judgment; (ii) entry of the Final Judgment by
the U.S. District Court pursuant to the ▇▇▇▇▇▇ Act, and either (a) the
expiration of all applicable time periods for further review of the Final
Judgment, or (b) a determination by Infinity that further review is unlikely and
(iii) compliance with the terms of the Final Judgment and the requirements of
the ▇▇▇▇▇▇ Act.
SECTION 9. TERMINATION
-----------
9.1 Termination Events. This Agreement may, by notice given prior to or
------------------
at the Closing, be terminated:
(a) by written mutual consent of Buyer and Infinity;
(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 Infinity, 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
Infinity to comply with its obligations under this Agreement) and Infinity has
not waived such condition on or before the Closing Date;
(c) by Buyer, on the one hand, or Infinity, 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 December 31, 2000, or such later date as the
Parties may mutually agree upon;
(d) by Infinity, if Infinity does not receive by August 31, 2000, in
a form satisfactory to Infinity, notice from the DOJ that the DOJ does not
object to the proposed divestiture of the Purchased Assets to Buyer pursuant to
the terms of this Agreement as required by the Final Judgment; or
(e) by Infinity or Buyer if (i) the U.S. District Court finds,
pursuant to (S) 2(e) of the ▇▇▇▇▇▇ Act that the Final Judgment is not in the
public interest; or (ii) any court of competent jurisdiction or other
Governmental Authority shall have issued an Order enjoining or otherwise
prohibiting the Contemplated Transactions (unless such order has been withdrawn,
reversed or otherwise made inapplicable).
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; 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 (including,
but not limited to, specific performance), separately or simultaneously, will
survive such termination unimpaired.
SECTION 10. INDEMNIFICATION; REMEDIES
-------------------------
10.1 Indemnification and Payment of Damages by Infinity. Infinity will
--------------------------------------------------
indemnify and hold harmless Buyer and its successors and assigns (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 breach of any representation or warranty made by Infinity
in this Agreement; provided, however, under no circumstances shall Infinity be
-------- -------
responsible to the Seller Indemnified Parties for consequential or punitive
damages;
(b) any breach by Infinity of any covenant or obligation of
Infinity in this Agreement;
(c) the failure of Infinity to satisfy and discharge any Excluded
Liabilities, except only the Assumed Liabilities; and
(d) bulk sales non-compliance under Section 11.2 below.
10.2 Indemnification and Payment of Damages by Buyer. Buyer will
-----------------------------------------------
indemnify and hold harmless Sellers and their successors and assigns
(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 breach of any representation or warranty made by Buyer in
this Agreement; provided, however, under no circumstances shall Buyer be
-------- -------
responsible to the Buyer Indemnified Parties for consequential or punitive
damages; and
(b) any breach by Buyer of any covenant or obligation of Buyer in
this Agreement; or
(c) the failure of Buyer to satisfy and discharge the Assumed
Liabilities.
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.
(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 reasonably
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 SECTION 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. 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 (20) 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 without its consent (which 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 and Limitations.
------------------------
(a) All representations and warranties contained in this Agreement
shall survive until the date that is two (2) years following the Closing Date.
(b) Notwithstanding anything herein to the contrary, Infinity shall
indemnify and hold the Seller Indemnified Persons harmless pursuant to this
Agreement to the extent that the Damages exceed in the aggregate Two Hundred
Fifty Thousand Dollars ($250,000) (the "Basket Amount"); provided, that if
------------- --------
aggregate claims hereunder exceed the Basket Amount, then Infinity shall
indemnify and hold the Seller Indemnified Persons harmless pursuant to this
Agreement only for the amount exceeding the Basket Amount. Notwithstanding any
other provisions of this Agreement in no event shall Infinity's liability to
indemnify the Seller Indemnified Persons hereunder exceed Ten Million Dollars
($10,000,000) (the "Cap").
---
10.6 Exclusive Remedies. The remedies provided in this SECTION 10 will be
------------------
exclusive for any inaccuracy or breach of any representation or warranty made by
either Party in this Agreement or any Closing Document delivered pursuant
hereto.
SECTION 11. GENERAL PROVISIONS
------------------
11.1 Expenses. 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. Infinity shall be responsible for the payment of any and all
Transfer Taxes incurred in connection with the Contemplated Transactions
11.2 Bulk Sales Waiver. The Parties hereby waive compliance by the
-----------------
Parties with the bulk sales law and any other similar laws in any applicable
jurisdiction in respect to the Contemplated Transactions.
11.3 Public Announcements; Confidentiality. Except as required by
-------------------------------------
applicable Legal Requirements, 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 Infinity mutually agree in
writing; provided, that the Parties shall reasonably cooperate in such
--------
announcements. Except as required by applicable Legal Requirements or unless
consented to by Buyer and Infinity in advance, prior to the Closing, each Party
(including its respective Affiliates) 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 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 registered 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 Infinity, to:
Infinity Broadcasting Corporation
c/o Transportation Displays Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer, to:
Entravision Communications Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Fognani, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
11.5 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.
11.6 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.
11.7 Entire Agreement and Modification. This Agreement supersedes all
---------------------------------
prior agreements between the Parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the Parties with
respect to its subject matter. As used herein, the "Agreement" shall be defined
to include all Exhibits, Schedules and Disclosure Schedules attached hereto.
This Agreement may not be amended except by a written agreement executed by the
Party to be charged with the amendment.
11.8 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 Party. Notwithstanding the foregoing, Buyer may assign its rights at
Closing to any wholly-owned subsidiary, including, but not limited to, Vista
Media Group, Inc.; provided, that Buyer shall remain responsible for the payment
--------
of the Purchase Price and all other obligations hereunder. 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.
11.9 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.
11.10 Post-Closing Access. Buyer agrees that from and after the Closing
-------------------
all Books and Records delivered to Buyer by Sellers pursuant to this Agreement
shall be maintained open for inspection by Sellers (at any time during regular
business hours and upon reasonable notice) for purposes of Sellers' compliance
with any Legal Requirement, and that Sellers, at their expense, may make such
copies thereof as it may reasonably desire. Infinity agrees (on behalf of
itself and the Seller Subsidiaries) that from and after the Closing all Books
and Records retained by Sellers shall be maintained open for inspection by Buyer
(at any time during regular business hours and upon reasonable notice) for
purposes of Buyer's compliance with any Legal Requirement, and that Buyer, at
its expense, may make such copies thereof as it may reasonably desire.
Notwithstanding the foregoing, to the extent that any books and records retained
by Sellers contain information related to both the Purchased Assets and the
Retained Assets, Sellers will, from and after the Closing, provide Buyer (at
Buyer's sole cost and expense), upon reasonable prior notice and during regular
business hours, access to redacted versions of such books and records redacting
information not directly and exclusively related to the Purchased Assets.
Nothing contained in this Section 11.10 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.
11.11 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.
---------
11.12 Applicable Law and Jurisdiction. 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 New York
applicable to contracts made in that State. The Parties hereby irrevocably
submit to the jurisdiction of any New York or United States federal court
sitting in New York, New York over any Proceeding brought by either Party
arising out of or relating to this Agreement and the Parties hereby irrevocably
agree that all claims with respect to such Proceedings may be heard and
determined in such courts. In the event of any
Proceeding, the prevailing Party shall be entitled to reasonable attorneys' fees
and other costs and expenses (including without limitation travel expenses)
incurred in litigating, enforcing or otherwise resolving or settling such
Proceeding.
11.13 Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which when fully executed and delivered by all parties
hereto and taken together shall constitute a single agreement, binding against
each of the Parties. To the maximum extent permitted by law or by any
applicable Governmental Body, any document may be signed and transmitted by
facsimile with the same validity as if it were an originally executed document.
11.14 Limited Non-Competition. In consideration of Buyer's covenants
-----------------------
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by Infinity, Infinity
agrees that, during the four (4) year period commencing on the Closing Date,
none of Infinity or any of its Controlled subsidiaries will, directly or
indirectly, contact or solicit (in either case, with the intention of making a
bid) or make any bid to, any landlord, licensor or grantor of the Site Leases
for the purpose of entering into leases, licenses or similar arrangements for
its own respective outdoor advertising operations at any of the locations
covered by any Site Lease herein.
[signature page follows]
IN WITNESS WHEREOF, the Parties have executed, sealed and delivered this
Agreement as of the date first written above.
ENTRAVISION COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President and Chief Operating Officer
INFINITY BROADCASTING CORPORATION
By: /s/ ▇▇▇▇ ▇. Haut
----------------
Name: ▇▇▇▇ ▇. Haut
Title: VP
[Signature Page to Asset Purchase Agreement]
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.
"Assumed Liabilities" - as defined in Section 2.4.
-------------------
"Basket Amount - as defined in Section 10.5(b).
-------------
"Best Efforts" - the efforts that a prudent Person desirous of achieving a
------------
commercially reasonable result would use in similar circumstances.
"▇▇▇▇ of Sale, Assignment and Assumption Agreement" - the ▇▇▇▇ of Sale,
-------------------------------------------------
Assignment and Assumption Agreement in the form of Exhibit C attached hereto.
---------
"Books and Records" - all of Sellers' books and records directly and
-----------------
exclusively 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
relating directly and exclusively to the Purchased Assets.
"Buyer" - as defined in the first paragraph of this Agreement.
-----
"Cap" - as defined in Section 10.5(b).
---
"Closing" - as defined in Section 2.6.
-------
"Closing Date" - the date and time as of which the Closing actually takes
------------
place.
"Closing Date Adjustment" - as defined in Section 2.8(b).
-----------------------
"Closing Documents" - as defined in Section 3.2(a).
-----------------
"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
Sellers and assignment to and assumption by Buyer of the Assumed Liabilities,
and (b) the performance by Buyer and Infinity 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.
A-1
"Control", "Controlled" or "Common 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.
"Damages" - as defined in Section 10.1.
-------
"Deposit" - as defined in Section 2.7.
-------
"Designated Consents" - as defined in Section 5.2.
-------------------
"Designated Site Lease" - any Site Lease (other than those other Site
---------------------
Leases listed on Schedule 2.8(b)(i)) (i) with net revenues (net of agency or
other commissions) for the year ended December 31, 1999, in excess of $200,000
and (ii) which by its terms expires on or prior to Closing.
"Disclosure Schedule" - the disclosure schedule, delivered by Infinity to
-------------------
Buyer concurrently with the execution and delivery of this Agreement.
"DOJ" - as defined in Section 7.6.
---
"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.
"ESA" - as defined in Section 5.5.
---
"Excluded Liabilities" - as defined in Section 2.5.
--------------------
A-2
"Final Judgment" - as defined in the Recital to this Agreement.
--------------
"Governmental Authorization" - any approval, consent, license, permit,
--------------------------
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"Governmental Body" - any federal, state, local, municipal, foreign, or
-----------------
other government; or governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity and
any court or other tribunal).
"Hazardous Materials" - any waste or other substance that is listed,
-------------------
defined, designated, or classified as, or otherwise determined to be, hazardous,
radioactive, or toxic or a pollutant or a contaminant under or pursuant to any
Environmental Law, and specifically including petroleum and all derivatives
thereof or synthetic substitutes therefor and asbestos or asbestos-containing
materials.
"Indemnified Person" - any of the Seller Indemnified Persons or the Buyer
------------------
Indemnified Persons, as the context requires.
"Indemnifying Party" - Buyer or Infinity, as the context requires.
------------------
"Infinity" - as defined in the first paragraph of this Agreement.
--------
"IRS" - the United States Internal Revenue Service and, to the extent
---
relevant, the United States Department of the Treasury.
"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, including,
but not limited to, the rules and regulations of the Securities and Exchange
Commission and New York Stock Exchange.
"Material Adverse Effect" - a material adverse effect on the Business, the
-----------------------
Purchased Assets or the Owned Real Property or the operations or conditions
(financial or otherwise) relating thereto, taken as a whole.
"1933 Act" - the Securities Act of 1933, as amended.
--------
"Order" - any award, decision, injunction, judgment, order, ruling or
-----
verdict entered, issued, made, or rendered by any court, administrative agency,
or other Governmental Body or by any arbitrator and not subject to further
review or appeal.
"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.
A-3
"Owned Real Property" - as defined in Section 2.2(e)
-------------------
"Party" - as defined in the first paragraph of this Agreement.
-----
"Permits" - as defined in Section 2.2(f).
-------
"Permitted Liens" - liens for taxes not yet delinquent, for mechanic's,
---------------
materialmen's and similar liens which have arisen in the ordinary course of
business or for other liens which are immaterial in amount or character.
"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.
"Preliminary Adjustment" - as defined in Section 2.8(a).
----------------------
"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 2.7.
--------------
"Purchased Assets" - as defined in Section 2.2.
----------------
"Release" - any spilling, leaking, emitting, discharging, depositing,
-------
escaping, leaching, dumping, or other releasing of Hazardous Material into the
Environment, whether intentional or unintentional.
"Representative" - with respect to a particular Person, any director,
--------------
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"Security Interest" - any mortgage, pledge, lien, encumbrance, charge or
-----------------
other security interest or option or right of any third party with respect
thereto.
"Sellers" - as defined in the first paragraph of this Agreement.
-------
"Seller Subsidiaries" - Infinity Outdoor Systems, Inc., Transportation
-------------------
Displays Incorporated, or any subsidiaries of Infinity, Infinity Outdoor
Systems, Inc. or Transportation Displays Incorporated having any right, title or
interest in, to or under the Purchased Assets or any liabilities included in the
Assumed Liabilities.
"Site Leases" - as defined in Section 2.2(b).
-----------
"Structures" - as defined in Section 2.2(a).
----------
"Tax" - shall mean all tax (including income tax, capital gains tax, value
---
added tax, sales tax, property tax, transfer tax or intangibles tax), levy
assessment, tariff, duty,
A-4
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.
"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.
"Transfer Taxes" - state and local sales and use Taxes on the transfer of
--------------
the Purchased Assets hereunder.
"▇▇▇▇▇▇ Act" - Antitrust Procedures and Penalties Act, 15 U.S.C. (S) 16.
----------
"U.S. District Court" - United States District Court for the District of
-------------------
Columbia.
A-5
EXHIBIT B
---------
Allocation of Purchase Price
EXHIBIT C
---------
Form of ▇▇▇▇ of Sale, Assignment and Assumption Agreement
THIS ▇▇▇▇ OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is
---------
made as of _________, 2000, between ENTRAVISION COMMUNICATIONS CORPORATION, a
Delaware corporation ("Assignee"), and [SELLER], a [Delaware] corporation
--------
("Assignor," and together with the Assignor's Subsidiaries, the "Assignors").
--------- ---------
Unless otherwise indicated, capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to such terms in the Asset
Purchase Agreement (as defined below).
WHEREAS, Infinity Broadcasting Corporation ("Infinity") and Assignee have
--------
entered into that certain Asset Purchase Agreement, dated June 14, 2000, as
amended from time to time in accordance with the terms thereof (the "Asset
-----
Purchase Agreement"), pursuant to which, among other things, (i) Infinity agreed
------------------
to sell Assignee and Assignee agreed to buy from Infinity, certain assets of
Assignors as specified in the Asset Purchase Agreement and (ii) Assignee agreed
to assume certain liabilities and obligations with respect to the Purchased
Assets; and
WHEREAS, Assignors desire to transfer and assign to Assignee the Purchased
Assets listed on Schedule A attached hereto (the "Specified Assets"), and
---------- ----------------
Assignee desires to accept the transfer and assignment of the Specified Assets
and to assume all obligations of Assignors in respect of such Specified Assets
and the Assumed Liabilities relating to such Specified Assets.
NOW, THEREFORE, for and in consideration of the mutual covenants set forth
below and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Assignors and Assignee agree as follows:
1. Assignors hereby bargain and sell, convey, transfer, assign, deliver
and set over to Assignee, all Assignors' right, title and interest in, to and
under the Specified Assets, free and clear of any Liens other than Permitted
Liens, and Assignee hereby purchases and accepts from Assignors, as of the date
hereof, all right, title and interest of Assignors in, to and under all such
Purchased Assets.
2. From time to time, at the request of Assignee, and without further
consideration or cost or expense to Assignee, Assignors shall do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acts, deeds, assignments, transfers, conveyances and
assurances that may reasonably be required for the sale, conveyance, transfer,
assignment, delivery, assurance and confirmation to Assignee, or to its
successors and assigns permitted under the Asset Purchase Agreement of, or for
aiding and assisting in collecting or reducing to possession, any or all of the
Specified Assets.
3. Assignee hereby accepts the transfer and assignment of the Specified
Assets and absolutely and irrevocably assumes and agrees to pay, keep, perform,
observe, discharge and be solely liable and responsible for all claims,
liabilities and obligations of
Assignors which are based upon, arise out of, or otherwise exist in respect of
(i) the Specified Assets, (ii) the Assumed Liabilities relating to such
Specified Assets, and (iii) the operation of the Business. Without limiting the
generality of the foregoing, Assignee agrees to be bound by and to pay, keep,
perform, observe and discharge all the terms, provisions and conditions of each
of the agreements, contracts and instruments included in the Specified Assets,
to be paid, kept, performed, observed and discharged by Assignors thereunder,
all with full force and effect as if Assignee had executed such agreements,
contracts and instruments originally.
4. Assignors hereby constitute and appoint Assignee the true and lawful
attorney of Assignors in the name of Assignee or in the name of Assignors, but
by and on behalf of and for the sole benefit of Assignee, to demand and receive
from time to time any and all of the Specified Assets, or to receive, collect,
or enforce any right, title, benefit or interest of any kind in or to the
Specified Assets. Without limitation of the foregoing, Assignors hereby
authorize Assignee to endorse or assign any instrument, contract or chattel
paper relating to the Specified Assets. Assignee agrees that the foregoing
appointment made and the powers hereby granted are coupled with an interest and
shall be irrevocable by Assignors or by dissolution of any or all of Assignors
or in any manner or for any reason. To the extent that any representation,
warranty, covenant or other provision of this Agreement conflicts or is
inconsistent with the terms of the Asset Purchase Agreement, the terms of the
Asset Purchase Agreement shall govern.
5. This Agreement may be executed with counterpart signature pages or in
one or more counterparts, all of which shall be deemed one and the same
agreement, and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to all the parties.
6. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, such provision
shall be ineffective to the extent, but only to the extent of, such invalidity,
illegality or unenforceability, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
7. This Agreement shall be construed, performed and enforced in
accordance with, and governed by, the laws of the State of New York, without
giving effect to the principles of conflicts of laws thereof, except if it is
necessary in any other jurisdiction to have the law of such other jurisdiction
govern this Agreement in order for this Agreement to be effective with respect
to a particular Specified Asset, then the laws of such other jurisdiction shall
govern this Agreement with respect to such Specified Asset.
8. This Agreement shall inure to the benefit of, and shall be binding
upon, the successors and assigns of the parties hereto permitted under the Asset
Purchase Agreement.
[Balance of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
officers to execute and deliver this Agreement on the day and year first above
written.
ASSIGNOR:
--------
[SELLER]
By:_____________________________
Name:
Title:
ASSIGNEE:
--------
ENTRAVISION COMMUNICATIONS CORPORATION
By:_____________________________
Name:
Title:
SCHEDULE 2.2(a)
---------------
Billboard Displays
SCHEDULE 2.2(b)
---------------
Site Leases
SCHEDULE 2.2(c)
---------------
Advertising Contracts
SCHEDULE 2.2(d)
---------------
Wireless Communications Contracts
NONE.
SCHEDULE 2.2(e)
---------------
Owned Real Property
SCHEDULE 2.2(h)
---------------
Tangible Personal Property
SCHEDULE 2.8(b)(i)
------------------
Excluded Site Leases
Lease Location Number Location
----- ---------------- --------
3181 Q4 Astoria Blvd w/l 43rd st.
3181 Q39 Astoria Blvd w/l 43rd st.
3296 TS7000 ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
3296 TS7003 ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
SCHEDULE 2.8(b)(ii)
-------------------
Adjustment Calculations
PPA = 13 X NCF
Where:
PPA = Amount by which Purchase Price shall be reduced
NCF = Net revenues (net of agency and other commissions) for Designated Site
Lease for the fiscal year ended December 31, 1999, minus lease expenses for
-----
Designated Site Lease for the fiscal year ended December 31, 1999.
SCHEDULE 5.2
------------
Best Efforts Consents
Location Number Lease Number Location
--------------- ------------ --------
M4 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇/▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ 11th Ave S/O 30th Street
MM6 31242 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ @▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Q440 3150 Van Wyck Expressway and Northern Blvd
______________________________________________
DISCLOSURE SCHEDULES
TO
ASSET PURCHASE AGREEMENT
______________________________________________
PART 3.2 TO DISCLOSURE SCHEDULES
--------------------------------
No Conflicts
(b) Such consents as may be required under the Site Leases.
Consents required with regard to the "Thirty Sheet" locations on the
elevated structures are subject to the terms and conditions of the
contract between TDI and the MTA.
(c) Any notice and consent requirements related to compliance with the
Final Judgement.
Such consents as may be required under the Site Leases.
Consents required with regard to the "Thirty Sheet" locations on the
elevated structures are subject to the terms and conditions of the
contract between TDI and the MTA.
PART 3.3 TO DISCLOSURE SCHEDULES
--------------------------------
Location of Structures
PART 3.4 TO DISCLOSURE SCHEDULES
--------------------------------
Material Defaults Under Site Leases and Advertising Contracts
NONE.
PART 3.5 TO DISCLOSURE SCHEDULES
--------------------------------
Encumbrances
Agreement dated November 16, 1994, by and between Villepigue Outdoor Advertising
Corporation and Service Sign Erectors Company, Inc.
PART 3.7 TO DISCLOSURE SCHEDULES
--------------------------------
Environmental Matters
NONE.
PART 3.8(b) TO DISCLOSURE SCHEDULES
-----------------------------------
list of certain assets
▇▇▇
▇▇▇▇
M115W
M575
M660
M7268
M7226
TS7000
TS7003
Q7589
B4W
K115
K165
Q4
Q39
PART 3.9(a) TO DISCLOSURE SCHEDULES
-----------------------------------
Orders, Proceedings & Defaults
NONE.
PART 3.9(b) TO DISCLOSURE SCHEDULES
-----------------------------------
Active Proceedings