Exhibit 10.28
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ASSET PURCHASE AGREEMENT
Dated as of October 16, 2001
by and among
CAPITAL ADVERTISING, INC., CAPITAL MEDIA II, INC.
and CAPITAL OUTDOOR, INC., as Seller
and
NEXTMEDIA OUTDOOR, INC., as Buyer
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TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS.......................................... 1
1.1 Defined Terms.......................................... 1
ARTICLE II SALE AND PURCHASE OF ASSETS............................ 5
2.1 Agreement to Sell and Purchase......................... 5
2.2 Excluded Assets........................................ 6
2.3 Nonassignable Assumed Contracts........................ 6
2.4 Liabilities............................................ 7
2.5 Purchase Price......................................... 9
2.6 Adjustments and Prorations............................. 9
2.7 Allocation............................................. 10
2.8 1031 Exchange.......................................... 10
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER............... 10
3.1 Organization, Standing and Authority................... 10
3.2 Authorization and Binding Obligation................... 11
3.3 Absence of Conflicting Agreements...................... 11
3.4 Licenses............................................... 11
3.5 Site Leases............................................ 11
3.6 Title to and Condition of Personal Property............ 12
3.7 Assumed Contracts...................................... 12
3.8 Consents............................................... 12
3.9 Advertising Displays................................... 12
3.10 Financial Information.................................. 12
3.11 Reports................................................ 13
3.12 Taxes.................................................. 13
3.13 Claims; Legal Actions.................................. 13
3.14 Compliance with Laws................................... 13
3.15 Undisclosed Liabilities................................ 14
3.16 Books and Records...................................... 14
3.17 Assets................................................. 14
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TABLE OF CONTENTS
(continued)
Page
3.18 Environment, Health and Safety........................ 14
3.19 Brokerage............................................. 14
3.20 Affiliated Transactions............................... 14
3.21 Real Property......................................... 15
3.22 Absence of Certain Changes............................ 15
3.23 Seller's Financial Condition.......................... 15
3.24 No Third Party Options................................ 15
3.25 Full Disclosure....................................... 15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER............... 15
4.1 Organization, Standing and Authority.................. 15
4.2 Authorization and Binding Obligation.................. 15
4.3 Absence of Conflicting Agreements or Consents......... 16
4.4 Brokerage............................................. 16
ARTICLE V COVENANTS............................................. 16
5.1 Further Assurances.................................... 16
5.2 Accounts Receivable................................... 16
5.3 Taxes, Fees and Expenses.............................. 17
5.4 Bulk Sales Law........................................ 17
5.5 Confidentiality....................................... 17
5.6 Noncompetition and Nonsolicitation.................... 17
5.7 Financial Information................................. 19
5.8 Employee Matters...................................... 19
5.9 Compliance with Laws.................................. 19
5.10 Additional Site....................................... 22
5.11 Condemnation Indemnity................................ 22
5.12 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Lease............................... 23
5.13 Advertising Contract Covenant......................... 24
ARTICLE VI CLOSING; TERMINATION AND RISK OF LOSS................. 24
6.1 Closing............................................... 24
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TABLE OF CONTENTS
(continued)
Page
6.2 Deliveries by Seller................................... 24
6.3 Deliveries by Buyer.................................... 25
ARTICLE VII SURVIVAL AND INDEMNIFICATION........................... 26
7.1 Survival of Representations, Warranties and Covenants.. 26
7.2 Indemnification by Seller.............................. 26
7.3 Indemnification by Buyer............................... 27
7.4 Procedure for Indemnification.......................... 27
7.5 Limitations on Indemnification......................... 28
ARTICLE VIII MISCELLANEOUS.......................................... 29
8.1 Notices................................................ 29
8.2 Benefit and Binding Effect............................. 30
8.3 Headings............................................... 30
8.4 Gender and Number...................................... 30
8.5 Counterparts........................................... 30
8.6 Entire Agreement....................................... 30
8.7 Amendment.............................................. 30
8.8 Severability........................................... 30
8.9 Governing Law.......................................... 31
8.10 Jurisdiction........................................... 31
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EXHIBITS
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Exhibit A Form of Indemnification Escrow Agreement
Exhibit B Form of ▇▇▇▇ of Sale
Exhibit C Form of Assignment and Assumption Agreement
SCHEDULES
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Schedule 1.1(a) Advertising Contracts
Schedule 1.1(b) Advertising Displays
Schedule 2.6 Deposits Under Site Leases
Schedule 2.7 Allocation of Purchase Price
Schedule 3.4 Licenses
Schedule 3.5 Site Leases
Schedule 3.6 Personal Property
Schedule 3.7 Assumed Contracts
Schedule 3.8 Consents
Schedule 3.10 Financial Information
Schedule 3.12 Taxes
Schedule 3.13 Claims; Legal Actions
Schedule 3.15 Undisclosed Liabilities
Schedule 3.18 Environment, Health and Safety
Schedule 3.20 Affiliated Transactions
Schedule 3.22 Material Changes
Schedule 5.6 Non-Restricted Displays
Schedule 5.8 Employees
Schedule 5.9 Purchase Price Per Advertising Display
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of October 16,
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2001 is made and entered into by and among CAPITAL ADVERTISING, INC., a New York
corporation ("Advertising"), CAPITAL MEDIA II, INC., a New York corporation
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("Media"), and CAPITAL OUTDOOR, INC., a New York corporation ("Outdoor")
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(Advertising, Media and Outdoor are hereinafter collectively referred to as
"Seller"), NEXTMEDIA OUTDOOR, INC., a Delaware corporation ("Buyer") and, solely
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with respect to Section 5.6 hereof, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇.
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PRELIMINARY STATEMENTS
WHEREAS, Seller owns and operates an outdoor advertising business
which develops billboard sites and sells advertising on billboards in the Market
(as defined herein) (the "Business"); and
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WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
from Seller certain Assets (as defined herein) used in the operation of Seller's
Business upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and for other good, valuable and binding consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
STATEMENT OF AGREEMENT
ARTICLE I
DEFINED TERMS
1.1 Defined Terms. The following terms shall have the following meanings in
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this Agreement:
"Accountant" shall have the meaning set forth in Section 2.6(b)
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hereof.
"Accounts Receivable" means any and all amounts or other obligations
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owed to Seller by reason of a sale of a good or the provision of a service
(including the provision of outdoor advertising) in the ordinary course of
Seller's conduct of the Business prior to the date hereof and for which such
goods have been sold or such services have been provided and for which Buyer has
no liability or obligation with respect thereto.
"Additional Site" shall have the meaning set forth in Section 5.10
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hereof.
"Advertising" shall have the meaning set forth in the recitals above.
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"Advertising Contracts" shall mean the contracts, including trade
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advertising contracts, whether written or oral, for advertising services to be
provided by Seller (including rental of space on Advertising Displays) in effect
as of the date hereof which relate to the site locations to be acquired
hereunder. All Advertising Contracts in effect as of the date hereof are listed
on Schedule 1.1(a) hereto.
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"Advertising Displays" shall mean the illuminated and unilluminated
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bulletins, panels and other outdoor advertising displays, including billboards
and the existing structures used in the display thereof (such as supporting
structures, upright beams, brackets, lighting equipment and other fixtures
attached thereto), whether or not in the process of construction or assembly,
reflected on Schedule 1.1(b) hereof as being owned, leased, used or operated by
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Seller and which relate to the site locations to be acquired hereunder. All
Advertising Displays as of the date hereof are described on Schedule 1.1(b)
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hereto.
"Affiliate" has the meaning given to such term in Rule 12b-2 of
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Regulation 12B under the Exchange Act.
"Agreement" shall have the meaning set forth in the recitals above.
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"Ancillary Agreements" shall have the meaning set forth in Section 3.2
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hereof.
"Assets" shall have the meaning set forth in Section 2.1 hereof.
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"Assumed Contracts" means, collectively, the contracts, leases,
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commitments and agreements (including any amendments or other modifications
thereto) to which Seller is a party which relate to the operation of the site
locations to be acquired hereunder and which are listed on Schedule 3.7 hereof,
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including, without limitation, contracts relating to the operation, construction
and development of the Advertising Displays, the Advertising Contracts and the
Site Leases.
"Assumed Liabilities" shall have the meaning set forth in Section
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2.4(a) hereof.
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"Basket" shall have the meaning set forth in Section 7.5(b) hereof.
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"Bulk Sales Law" shall have the meaning set forth in Section 5.4
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hereof.
"Business Day" means any day other than a Saturday, a Sunday or a day
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on which banking institutions in New York, New York are not required to be open.
"Business" shall have the meaning set forth in the recitals above.
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"Buyer" shall have the meaning set forth in the recitals above.
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"Cause of Action" means a right to receive or recover property, debt
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or damages on a cause of action, whether pending or not and whether arising in
contract, tort or otherwise.
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The term shall include, but shall not be limited to, rights to judgments,
settlements and proceeds from judgments or settlements.
"Claimant" shall have the meaning set forth in Section 7.4(a) hereof.
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"Closing" means the consummation of the transactions contemplated by
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this Agreement in accordance with the provisions of Article VI hereof.
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"Closing Date" means the date of the Closing specified in Article VI
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hereof.
"Closing Payment" shall have the meaning set forth in Section 2.5
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hereof.
"Code" means the Internal Revenue Code of 1986, as amended to the date
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hereof.
"Collection Period" shall have the meaning set forth in Section 5.2
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hereof.
"Consents" means the consents of third parties, including, without
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limitation, applicable governmental authorities, necessary to transfer the
Assets to Buyer or otherwise to consummate the transactions contemplated hereby,
all of which Consents are set forth on Schedule 3.8 hereto.
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"Environmental Claims" refers to any complaint, summons, citation,
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notice, directive, order, claim, litigation, investigation, judicial or
administrative proceeding, judgment, letter or other communication from any
governmental agency, department, bureau, office or other authority, or any third
party involving violations of Environmental Laws with respect to the ownership
of the Assets or the operation of the Business.
"Environmental Laws" include the Comprehensive Environmental Response,
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Compensation and Liability Act, 42 U.S.C. 9601 et seq., as amended; the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 et seq., as amended; the Clean Air
Act, 42 U.S.C. 7401 et seq., as amended; the Clean Water Act, 33 U.S.C. 1251 et
seq., as amended; the Occupational Safety and Health Act, 29 U.S.C. 655 et seq.,
and any other federal, state, local or municipal laws, statutes, regulations,
rules or ordinances imposing liability or establishing standards of conduct for
protection of the environment, including, without limitation, the protection of
surface water, groundwater, drinking water, air, wildlife, plants or other
natural resources, or the health and safety of Persons or property, including,
without limitation, protection of the health and safety of employees.
"Exchange Act" shall have the meaning set forth in Section 5.7 hereof.
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"Excluded Assets" shall have the meaning set forth in Section 2.2
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hereof.
"Excluded Liabilities" shall have the meaning set forth in Section
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2.4(b) hereof.
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"Financial Information" shall have the meaning set forth in Section
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3.10 hereof.
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"GAAP" means generally accepted accounting principles, consistently
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applied, of the United States.
"Hazardous Substances" means all substances, materials or waste that
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are regulated by federal, state or local government under the Environmental Laws
as hazardous, toxic or pollutants or contaminants as well as any petroleum or
petroleum derived product.
"Indemnifying Party" shall have the meaning set forth in Section
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7.4(a).
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"Licenses" means all of the licenses, permits and other authorizations
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issued by, or pending with, any federal, state or local governmental authorities
with respect to the Assets which are used in connection with the operation of
the site locations to be acquired hereunder, including, without limitation,
those listed on Schedule 3.4 hereto.
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"Liens" means any claims, mortgages, pledges, liens, security or other
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third party interests, conditional sales agreements, options, encumbrances,
debts or charges of any kind.
"Market" means each of the following locations in which Seller
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currently conducts the Business and in which Assets are being transferred to
Buyer: the counties of New York, Bronx and Queens within New York City, New
York.
"Media" shall have the meaning set forth in the recitals above.
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"Nonassignable Right" shall have the meaning set forth in Section
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2.3(a) hereof.
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"Noncompete Period" shall have the meaning set forth in Section 5.6(b)
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hereof.
"Outdoor" shall have the meaning set forth in the recitals hereof.
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"Person" means an individual, a partnership, a corporation, a limited
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liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Personal Property" includes, without limitation, computer programs,
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computer software, copyrights, patents, trademarks, leasehold improvements,
supplies, spare parts and all other tangible or intangible personal property
which is owned, used or leased by Seller and which relates directly to the
operation of the site locations to be acquired hereunder, all of which is listed
on Schedule 3.6 hereto.
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"Proceeding" shall have the meaning set forth in Section 5.9 hereof.
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"Purchase Price" means the consideration payable to Seller for the
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Assets as provided in Section 2.5 hereof.
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"Restricted Parties" shall have the meaning set forth in Section
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5.6(a) hereof.
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"Restrictive Covenant" shall have the meaning set forth in Section
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5.6(a) hereof.
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"Securities Act" shall have the meaning set forth in Section 5.7
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hereof.
"Seller" shall have the meaning set forth in the recitals above.
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"Site Leases" shall mean all leases, licenses, easements, occupancy
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agreements and other grants of the right to use real property not owned in fee
by Seller for the use, operation, construction, or management of Advertising
Displays, and all extensions, modifications or renewals (whether or not pursuant
to different terms and conditions) thereof to which Seller was a party or of
which it had the benefit as of the date hereof, including, without limitation,
rights to locations on which structures have not been built. All Site Leases as
of the date hereof are listed on Schedule 3.5 hereto, which sets forth for each
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Site Lease: (a) the location of the property, (b) the name of the lessor or
grantor, (c) the annual base rent for such Site Lease, if any, and (d) the
expiration date of such site lease, if any.
"Taxes" means all federal, state, county, local, foreign and other
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taxes of any kind whatsoever (including, without limitation, income, profits,
premium, estimated, excise, sales, use, occupancy, gross receipts, franchise, ad
valorem, severance, capital levy, production, transfer, license, stamp,
environmental, withholding, employment, unemployment compensation, payroll
related and property taxes, import duties and other governmental charges and
assessments), whether or not measured in whole or in part by net income, and
including deficiencies, interest, additions to tax or interest, and penalties
with respect thereto, and including expenses associated with contesting any
proposed adjustment related to any of the foregoing.
"Tax Return" means any return, information report or filing with
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respect to Taxes, including any schedules attached thereto and including any
amendment thereof.
"1031 Exchange" shall have the meaning set forth in Section 2.8
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hereof.
ARTICLE II
SALE AND PURCHASE OF ASSETS
2.1 Agreement to Sell and Purchase. Subject to the terms and conditions set
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forth in this Agreement, Seller hereby agrees to sell, transfer and deliver to
Buyer, and Buyer agrees to purchase from Seller, all of the rights, title and
interest of Seller in and to certain of the assets related to the operation of
Seller's Business (collectively, the "Assets"), free and clear of any Liens
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(except as otherwise expressly set forth herein), as described below:
(a) All of the Assumed Contracts;
(b) All of Seller's right, title and interest in and to the Licenses;
(c) The Advertising Displays;
(d) The Personal Property;
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(e) All files, books and other records relating to the operation of
the site locations to be acquired hereunder, including, without limitation,
executed copies of the Assumed Contracts or, if no executed agreement exists, a
summary of such Assumed Contract, price lists, marketing information, sales
records, customer lists and files;
(f) All rights under, or pursuant to, all warranties, representations
and guarantees made by suppliers or servicers in connection with the Advertising
Displays to the extent that such warranties, representations and guarantees are
assignable; and
(g) Except as provided in Section 2.2 below, all such other assets,
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properties, interests and rights owned, leased, licensed or used by Seller in
connection with the operation of the site locations to be acquired hereunder,
including the goodwill associated therewith.
2.2 Excluded Assets. All assets of Seller not specifically described in
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Section 2.1 above, including, but not limited to, the assets hereinafter
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described in this Section 2.2, shall be retained by Seller, shall not be
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acquired by Buyer and shall be deemed excluded assets (collectively, the
"Excluded Assets"):
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(a) Seller's Accounts Receivable;
(b) All cash on hand and in bank accounts, and other cash items and
equivalents of Seller as of the date hereof;
(c) Seller's minute books and other books and records relating to its
internal governance matters, and any books and records not related to the Assets
and to the operations thereof;
(d) Seller's right, title and interest in and to the names "Capital
Advertising," "Capital Media II" and "Capital Outdoor" or any derivations
thereof;
(e) Any claims, rights or interests of Seller in or to any refunds of
federal, state or local franchise, income or other Taxes or fees of any nature
whatsoever which either: (i) relate solely to the period prior to the Closing
Date; or (ii) do not relate to the Assets;
(f) All contracts other than the Assumed Contracts and all assets or
funds held in trust, or otherwise, associated with or used in connection with
Seller's employee benefit plans, programs or arrangements; and
(g) All of Seller's rights in and to all Causes of Action relating to
the Assets which existed on or prior to the date hereof and which relate
entirely to the period prior to the Closing Date.
2.3 Nonassignable Assumed Contracts.
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(a) Nonassignability. Without limiting or otherwise affecting the
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rights of Buyer pursuant to Article VII of this Agreement, to the extent that
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any Assumed Contract or
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License is not capable of being assigned without the consent, approval or waiver
of a third Person, or if such assignment or attempted assignment would
constitute a breach thereof or a violation of any law or regulation (each, a
"Nonassignable Right"), nothing in this Agreement will constitute an assignment
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or require the assignment thereof, except to the extent provided in this Section
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2.3.
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(b) Seller to Use Commercially Reasonable Efforts. Notwithstanding
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anything to the contrary contained herein, Seller shall not be obligated to
assign to Buyer any rights or obligations in, to or under any of the
Nonassignable Rights without first having obtained all consents, approvals or
waivers necessary for such assignment; provided, however, that Seller shall use
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its commercially reasonable efforts to obtain all such consents, approvals and
waivers. Buyer acknowledges and agrees that it shall cooperate with Seller in
Seller's efforts to obtain all required consents, approvals and waivers.
(c) If Waivers or Consents Cannot Be Obtained. To the extent that any
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consent, approval or waiver required for the assignment of any Nonassignable
Right cannot be obtained by Seller either prior to or after the Closing, then
Seller shall use its commercially reasonable efforts to: (i) provide to Buyer
the financial and business benefits of such Nonassignable Right and (ii)
enforce, at the request of Buyer and for the account of Buyer, any rights of
Seller arising from any such Nonassignable Right (including, without limitation,
the right to elect to terminate in accordance with the terms thereof upon the
advice of Buyer).
2.4 Liabilities.
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(a) Assumed Liabilities. Subject to the provisions of Section 2.4(b)
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herein, at Closing, Buyer shall assume, discharge and perform the liabilities
and obligations of Seller arising or to be performed after the Closing Date
under the Assumed Contracts and Licenses in effect on the Closing Date and all
other liabilities and obligations that arise from the ownership or operation of
the Assets after the Closing Date. All of the foregoing liabilities and
obligations shall be referred to herein collectively as the "Assumed
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Liabilities."
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(b) Excluded Liabilities. Notwithstanding anything contained in this
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Agreement to the contrary, Buyer shall not assume or otherwise be liable in
respect of, or be deemed by virtue of the execution and delivery of this
Agreement, or as a result of the consummation of the transactions contemplated
by this Agreement, to have assumed or otherwise be liable in respect of, any
debt, claim, obligation, or other liability of Seller, or any of Seller's
Affiliates, other than the Assumed Liabilities, including, without limitation,
any of the following liabilities or obligations of Seller (collectively, the
"Excluded Liabilities"):
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(i) any obligations or liabilities of Seller or any predecessor
or Affiliate of Seller which in any way relate to, or arise out of, any of
the Excluded Assets;
(ii) any and all Tax liabilities of Seller;
(iii) any liabilities or obligations of Seller owed to any of its
Affiliates;
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(iv) any liabilities or obligations of Seller for borrowed money
or for interest on such borrowed money;
(v) any liabilities or obligations arising out of any breach by
Seller or any predecessor or Affiliate of Seller of any of the terms or
conditions of any provision of any contract;
(vi) any liabilities or obligations of Seller or any predecessor
or Affiliate of Seller resulting from, caused by or arising out of, any
violation of law;
(vii) any claims, liabilities, or obligations of Seller as an
employer, including, without limitation, liabilities for wages,
supplemental unemployment benefits, vacation benefits, severance benefits,
retirement benefits, Federal Consolidated Omnibus Budget Reconciliation Act
of 1985 benefits, Federal Family and Medical Leave Act of 1993 benefits,
Federal Workers Adjustment and Retraining Notification Act obligations and
liabilities, or any other employee benefits, withholding Tax liabilities,
workers' compensation, or unemployment compensation benefits or premiums,
hospitalization or medical claims, occupational disease or disability
claims, or other claims attributable in whole or in part to employment or
termination by Seller or arising out of any labor matter involving Seller
as an employer, and any claims, liabilities and obligations arising from or
relating to any employee benefit plans;
(viii) any claims, liabilities, losses, damages, or expenses
relating to any litigation, proceeding, or investigation of any nature
arising out of Seller's ownership of the Assets or Seller's operation of
its Business on or prior to the Closing Date including, without limitation,
any claims against or any liabilities for injury to, or death of, persons
or damage to or destruction of property, any workers' compensation claims,
and any warranty claims;
(ix) except as may otherwise be provided herein, any accounts
payable, other indebtedness, obligations or accrued liabilities of Seller;
(x) any claims, liabilities, losses, damages, expenses or
obligations resulting from the failure to comply with, or imposed pursuant
to, any Environmental Law or resulting from the use, presence, generation,
storage, treatment, transportation, handling, disposal, emission or release
of Hazardous Substances, solid wastes, or gaseous matters by Seller or by
any other Person related to, or affiliated with, Seller, the Assets or
Seller's operation of the Business to the extent related to, arising from
or otherwise attributable to acts or omissions prior to, or conditions
existing as of, the Closing Date, including, without limitation, any
liability or obligation for cleaning up waste disposal sites from or
related to acts or omissions occurring on or prior to the Closing Date;
(xi) any fees and expenses incurred by Seller in connection with
negotiating, preparing, closing, and carrying out this Agreement and the
transactions
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contemplated by this Agreement, including, without limitation, the fees and
expenses of Seller's attorneys, accountants, consultants and brokers; and
(xii) any liabilities or obligations with respect to any
contracts that Buyer is not specifically assuming.
Seller acknowledges and agrees that Seller shall pay promptly when due any and
all Excluded Liabilities not discharged by it at or prior to Closing.
2.5 Purchase Price. The Purchase Price for the Assets is Eight Million
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Eight Hundred Fifty Six Thousand, Six Hundred Seventeen Dollars ($8,856,617) and
shall be paid to Seller or its designee at Closing by wire transfer to an
account or accounts designated by Seller (the "Closing Payment"); provided,
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however, that notwithstanding anything to the contrary contained in this
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Agreement, Eight Hundred Eighty Five Thousand, Six Hundred Sixty One Dollars and
Seventy Cents ($885,661.70) of the Purchase Price will be paid into escrow at
Closing and retained therein pursuant to an Indemnification Escrow Agreement,
substantially in the form of Exhibit A hereto, by and among Buyer, Seller and
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the escrow agent named therein.
2.6 Adjustments and Prorations.
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(a) All revenues arising from the ownership and operation of the
Assets, earned or accrued until midnight on the day prior to the Closing Date,
and all expenses, costs or liabilities, arising therefrom incurred, accrued or
payable up until such time including, without limitation, business, license,
utility charges, real and personal property Taxes and assessments levied against
the Assets, property and equipment rentals, applicable copyright or other fees,
sales and service charges and Taxes (other than income Taxes, which shall be
Seller's sole responsibility for all Taxable periods ending prior to the Closing
Date, and those Taxes arising from the sale and transfer of the Assets, which,
in the case of transfer and other similar Taxes shall be paid as set forth in
Section 5.3) shall be prorated between Buyer and Seller in accordance with the
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principle that: (i) Except as provided below, Seller shall receive all revenues,
refunds and deposits (to the extent such refunds or deposits can be released or
refunded) of Seller held by third parties, and shall be responsible for all
expenses, costs and liabilities incurred, payable or allocable to the operation
of the Business and the ownership of the Assets for the period prior to the
Closing Date and (ii) Buyer shall receive all revenues earned or accrued, and
shall be responsible for all expenses, costs and liabilities incurred, payable
or allocable to the operation of the Assets for the period commencing on and
continuing after the Closing Date (provided, however, that Buyer shall have no
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responsibility for any wages, salaries, vacation, sick pay or other similar
expenses of any employee of Seller, it being understood that Buyer is not the
successor employer of any of Seller's employees). Notwithstanding the foregoing,
Seller shall receive $20,416.69 from Buyer at Closing, which amount represents a
credit for rent abatement from October 2001 through April 2002, for the site
lease located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, in consideration of
Seller's expenditures for the Advertising Display at such location.
Notwithstanding the foregoing, Buyer shall have the right to receive from each
of the lessors under the Site Leases identified on Schedule 2.6 the deposits
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related to such Site Leases and
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Seller acknowledges that it shall have no interest in such deposits. On the
Closing Date, Buyer shall pay Seller an amount equal to the Site Lease deposits
referenced on Schedule 2.6.
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(b) Adjustments and prorations pursuant to this Section 2.6 will,
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insofar as feasible, be determined and paid on the Closing Date based upon
Seller's calculation thereof delivered to Buyer prior to the Closing Date and
approved by Buyer, with final settlement and payment by the appropriate party
occurring as described below. In the event any adjustment must be made
post-Closing, the determination of the amount of adjustment under this Section
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2.6 shall be made by Buyer. Upon such determination, within ninety (90) days
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following the Closing Date, Buyer shall submit such determination to Seller for
approval. If Seller disagrees with the determination made by Buyer of the
adjustment, Seller shall give prompt written notice thereof, but in no event
later than ten (10) days after receipt of such determination, specifying in
reasonable detail the nature and extent of such disagreement and stating the
amount of Seller's proposed final allocation and proration, and Buyer and Seller
shall have a period of ten (10) days in which to resolve such disagreement in
good faith. If the parties are unable to resolve such disagreement within such
10-day period, the matter shall be submitted to the New York, New York office of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, an independent certified public accounting firm
("Accountant"), which accounting firm shall be directed to submit a final
----------
resolution to Buyer and Seller within thirty (30) days. Accountant's
determination shall be binding on both Buyer and Seller. Each party shall bear
the fees and expenses of its own representatives, including its independent
accountants, if any, and shall share equally the fees and expenses of
Accountant, if any. Within ten (10) Business Days following a final
determination hereunder of the adjustments or prorations (either by agreement of
the parties or pursuant to the dispute mechanism described above), the party
obligated to make payment will pay the amounts determined to be due and owing in
accordance with this Section 2.6.
-----------
2.7 Allocation. The Purchase Price for the Assets shall be allocated in
----------
accordance with Schedule 2.7 hereto. Such allocation shall be consistently
------------
reported by Buyer and Seller on Form 8594 in compliance with Section 1060 of the
Code.
2.8 1031 Exchange. Buyer hereby agrees to reasonably cooperate with Seller
-------------
in connection with a proposed "Section 1031 Exchange" pursuant to the Code (the
"1031 Exchange"), including paying all or part of the Purchase Price to a
-------------
"qualified intermediary" (as such term is used in the Code), provided that Buyer
--------
shall not incur any liability or expense in connection with the foregoing. In
this regard, Buyer agrees that, notwithstanding the provisions of Section 8.2 of
-----------
this Agreement, Seller may assign all or a portion of the benefits of this
Agreement, but not its obligations, to such a qualified intermediary. Seller
agrees to indemnify Buyer and its Affiliates from and against any and all
losses, damages, liabilities, claims, costs and expenses, interest, penalties,
judgments and settlements (including, without limitation, reasonable attorneys'
fees and disbursements), resulting from, imposed upon or incurred by Buyer or
its Affiliates in connection with such 1031 Exchange or such assignment and
acknowledges that the indemnification liability imposed pursuant to this Section
-------
2.8 shall not be subject to the limitations imposed in Article 7. Seller hereby
--- ---------
covenants and agrees that in connection with the consummation of the proposed
1031 Exchange that it will use no portion of
10
the Purchase Price delivered to the qualified intermediary to acquire or to
purchase any interest in any outdoor advertising business or any assets
associated with any outdoor advertising business.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
3.1 Organization, Standing and Authority. Each Seller is a corporation
------------------------------------
validly existing and in good standing under the laws of the State of New York.
Seller has all necessary power and authority to own, lease and operate its
Business as now being conducted and as proposed to be conducted and is duly
qualified to do business in each jurisdiction in which its operation of its
Business or its ownership or leasing of property makes such qualification
necessary.
3.2 Authorization and Binding Obligation. Seller has the requisite power
------------------------------------
and authority to execute, deliver, and perform this Agreement and all other
agreements to be executed and delivered by it hereunder or in connection
herewith, including, without limitation, the ▇▇▇▇ of Sale and the Assignment and
Assumption Agreement (the "Ancillary Agreements"), and all necessary actions on
--------------------
the part of Seller have been duly and validly taken to authorize the execution,
delivery and performance of this Agreement and the Ancillary Agreements. This
Agreement has been duly executed and delivered by Seller and constitutes the
legal, valid and binding obligation of Seller enforceable against Seller, and
each of the Ancillary Agreements to be delivered by Seller, when executed and
delivered at Closing, will constitute a valid and binding obligation of Seller,
enforceable in accordance with its terms, except as provided by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors' rights
generally and general equitable principles.
3.3 Absence of Conflicting Agreements. Neither the execution, delivery or
---------------------------------
performance of this Agreement or the Ancillary Agreements when so executed (with
or without the giving of notice, the lapse of time, or both) nor the
consummation of the transactions contemplated hereby: (i) will conflict with any
provision of the organizational charter or bylaws of any Seller; (ii) will
conflict with, will result in a breach of, or will constitute a default under
any applicable law, judgment, order, ordinance, decree, rule, regulation or
ruling of any court or governmental instrumentality; (iii) will result in a
breach of, will conflict with, will constitute a default under or will permit
any party to terminate, modify, accelerate the performance of or cancel the
terms of, any Assumed Contract or License to which Seller is a party or by which
Seller may be bound; or (iv) will create any Lien upon any of the Assets.
3.4 Licenses. Schedule 3.4 hereto contains a true, correct and complete
-------- ------------
list of all of the Licenses. The Licenses comprise all of the permits and other
authorizations used by Seller in connection with the operation of the
Advertising Displays and the other Assets. The Licenses, to the best of Seller's
knowledge after reasonable inquiry, are now in full force and effect. Upon
11
consummation of the transactions contemplated hereby, all of Seller's right,
title and interest in the Licenses will be transferred to Buyer.
3.5 Site Leases. Schedule 3.5 hereto contains a true, correct and complete
----------- ------------
list of the Site Leases used in connection with, or necessary to operate, the
Advertising Displays to be acquired hereunder. Seller has good and marketable
title to all of the Site Leases and none of such Site Leases is subject to any
Lien, except for: (a) Liens described on Schedule 3.5, (b) Liens for Taxes not
------------
yet due and payable and (c) such imperfections of title and encumbrances, if
any, which are not, individually or in the aggregate, material in character,
amount or extent, and which do not materially detract from the value, or
materially interfere with the present use or anticipated use of the property
subject thereto or affected thereby. Each of the Site Leases is in full force
and effect. Upon consummation of the transactions contemplated hereby, the Site
Leases will be transferred to Buyer subject to the obtaining of the consents
reflected in Schedule 3.8. Except as otherwise disclosed on Schedule 3.5, Seller
------------ ------------
is not, and to Seller's knowledge, no other party is in material default under
any Site Lease. Seller has the full legal power and authority to assign its
rights under each Site Lease listed on Schedule 3.5 hereto to Buyer.
------------
3.6 Title to and Condition of Personal Property. Schedule 3.6 hereto
------------------------------------------- ------------
contains a true, correct and complete list of the items of Personal Property
which permit the operation of the site locations to be acquired hereunder as now
being operated. Seller has good and marketable title to all Personal Property
and none of the Personal Property is subject to any Lien, except for: (a) Liens
for Taxes not yet due and payable and (b) such imperfections of title and
encumbrances, if any, which are not, individually or in the aggregate, material
in character, in amount or extent, and which do not detract from the value, or
interfere with the present use, of the Personal Property subject thereto or
affected thereby. Seller is not, and to Seller's knowledge no other party is, in
material default under any of the leases, licenses or other agreements relating
to the Personal Property. Except as otherwise disclosed in Schedule 3.6 hereto,
------------
the Personal Property listed therein is in good operating condition and repair
(ordinary wear and tear excepted), permits the operation of the site locations
to be acquired hereunder as currently operated without any immediate need for
replacement and is available for immediate use.
3.7 Assumed Contracts. Schedule 3.7 hereto contains a true, correct and
----------------- ------------
complete list of all of the Assumed Contracts in effect on the date hereof. On
or prior to the date hereof, Seller has provided Buyer with true, correct and
complete copies of the Assumed Contracts set forth on Schedule 3.7. All of the
------------
Assumed Contracts are in full force and effect and are valid, binding and
enforceable against Seller in accordance with their terms. Except as otherwise
disclosed on Schedule 3.7, there is no default or breach by Seller, or to
------------
Seller's knowledge, any other party to any Assumed Contract and there are no
negotiations pending or in progress to revise, modify, terminate or extend any
such Assumed Contracts. To Seller's knowledge, there is no provision in any
Assumed Contract which any party to such Assumed Contract is unable to perform.
The Assumed Contracts are the only contractual agreements necessary to operate
the site locations to be acquired hereunder as currently operated and as
presently proposed to be operated.
12
3.8 Consents. Schedule 3.8 sets forth: (a) those Assumed Contracts which
-------- ------------
require consent or notice for assignment to Buyer and (b) all of the other
consents, governmental or otherwise, required to consummate the transactions
contemplated hereby. Except for the Consents described on Schedule 3.8 hereto,
------------
no consent, authorization, approval, order, license, certificate or permit of or
from, or declaration or filing with, any federal, state, local or other
governmental authority or any court or other tribunal, and no consent or waiver
of any party to any contract to which Seller is a party is required or
declaration to or filing with any governmental or regulatory authority, or any
other third party is required to: (i) execute this Agreement or any Ancillary
Agreement, (ii) consummate this Agreement or any Ancillary Agreement and the
transactions contemplated hereby or thereby, or (iii) permit Seller to assign or
transfer the Assets to Buyer.
3.9 Advertising Displays. Seller owns the Advertising Displays, all of
--------------------
which are free and clear of all Liens.
3.10 Financial Information. Schedule 3.10 hereto contains a true, correct
--------------------- -------------
and complete list of all of the financial information that has been delivered to
Buyer by Seller related to the Assets to be acquired by Buyer (the "Financial
---------
Information"). The Financial Information was prepared by Seller in accordance
-----------
with its past practice, consistently applied. The Financial Information is true
and correct in all material respects.
3.11 Reports. All returns, reports and statements relating to the Assets or
-------
to the operation of the Business which Seller is required to file with any
governmental agency have been filed, and all reporting requirements of
governmental authorities having jurisdiction over the ownership of the Assets or
the operation of the Business have been complied with.
3.12 Taxes. Except to the extent set forth in Schedule 3.12, Seller has
----- -------------
filed or has caused to be filed all federal, state, county, local or city Tax
Returns affecting the Assets or the operation of the Business which are required
to be filed by Seller, and all Tax assessments and other governmental charges
which are due and payable have been timely paid. To Seller's knowledge, there
are no Tax liens upon the Assets. With respect to the Assets or the operation of
the Business, all Tax reports filed by Seller fairly reflect the Taxes of Seller
for the periods covered thereby and the Seller has received no notice of any Tax
deficiency or delinquency. With respect to the Assets or the operation of the
Business, no Internal Revenue Service audit of Seller is pending or, to the
knowledge of Seller, threatened and the results of any completed audits are set
forth in Schedule 3.12 hereto. All monies required to be withheld by Seller from
-------------
employees or collected from customers for income taxes, social security and
unemployment insurance Taxes and sales, excise and use Taxes, and the portion of
any such Taxes to be paid by Seller to governmental agencies or set aside in
accounts for such purposes have been so paid or set aside, or such monies have
been approved, reserved against and entered upon the books of Seller.
3.13 Claims; Legal Actions. Except as set forth on Schedule 3.13, there are
--------------------- -------------
no actions, suits, proceedings, orders or claims pending or, to the knowledge of
Seller, threatened against Seller, or pending or threatened by Seller against
any third party, at law or in equity, or before or
13
by any governmental department, commission, board, bureau, agency or
instrumentality which relate to, or in any way affect, the Assets or the
operation of the Business (including, without limitation, any actions, suits,
proceedings or investigations with respect to the transactions contemplated by
this Agreement or any Ancillary Agreement). Seller is not subject to any
judgment, order or decree of any court or other governmental agency, and Seller
has received no written opinion or memorandum from legal counsel to the effect
that it is exposed, from a legal standpoint, to any liability which relates to,
or in any way affects, the Assets or the operation of the Business.
3.14 Compliance with Laws. Seller has complied in all material respects
--------------------
with all applicable federal, state and local laws, rules, regulations,
ordinances, codes, statutes, judgments, orders and decrees in connection with
the ownership of the Assets and the operation of the Business; provided,
--------
however, that this Section 3.14 shall not be applicable to, or be deemed to
------- ------------
include any representation or warranty with respect to any License, or any law,
regulation, ordinance, code, statute, judgement, order or decree relating to any
License or the operation of any Advertising Displays thereunder. Except as
disclosed in Schedule 3.13, Seller has not received written notice of any
-------------
violation (which has not been cured) of any law, regulation, ordinance, code,
statute, judgement, order or decree. To Seller's knowledge, neither the
ownership nor the use of the Assets conflicts with the rights of any other
Person.
3.15 Undisclosed Liabilities. With respect to the Business or the ownership
-----------------------
and operation of the Assets, except as set forth in Schedule 3.15 hereto or as
-------------
otherwise disclosed in this Agreement or any Schedule or exhibit hereto, Seller
has no contingent liabilities or other liabilities outside the ordinary course
of business.
3.16 Books and Records. The books and other records of the Seller relating
-----------------
to the Assets are true, correct and complete in all material respects.
3.17 Assets. The Assets include all assets used in connection with the
------
operation of the site locations to be acquired hereunder as currently operated.
Seller will transfer good and valid title to the Assets other than the Licenses,
as to which it will transfer all its right, title and interest, free and clear
of any Liens.
3.18 Environment, Health and Safety. To Seller's knowledge, except as set
------------------------------
forth on Schedule 3.18:
-------------
(a) Seller's operation of the Assets and the Business is in compliance
in all material respects with Environmental Laws;
(b) Seller has obtained, and is in material compliance with, all
necessary permits or authorizations that are required under Environmental Laws
to operate the Assets and the Business;
14
(c) No Environmental Claims have been asserted against Seller or, to
the knowledge of Seller, any predecessor in interest, nor does Seller have
knowledge or notice of any threatened or pending Environmental Claim against
Seller; and
(d) Seller further represents that it has delivered to Buyer true,
correct and complete copies of all environmental reports, studies,
investigations or correspondence in Seller's possession, if any, regarding any
environmental conditions at any of the Site Lease locations.
3.19 Brokerage. Except for ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., LLC, there are no claims
---------
for brokerage commissions, finders' fees or similar compensation in connection
with the transactions contemplated by this Agreement based on any arrangement or
agreement binding upon Seller. Seller shall pay, and shall hold Buyer harmless
against, any liability, loss or expense (including, without limitation,
reasonable attorneys' fees and out-of-pocket expenses) arising in connection
with any such claim.
3.20 Affiliated Transactions. Except as set forth on Schedule 3.20 hereto,
----------------------- -------------
no officer, director, employee, shareholder, member or Affiliate of Seller or
any individual related by blood, marriage, or adoption to any such individual or
any entity in which such Person owns any beneficial interest, is a party to any
agreement, contract, commitment, or transaction with Seller with respect to the
Assets.
3.21 Real Property. Seller does not own any real property which is used in
-------------
connection with the operation of the Assets.
3.22 Absence of Certain Changes. Except as set forth on Schedule 3.22,
-------------------------- -------------
since June 1, 2001, there has not been: (a) any material damage, destruction or
loss of any kind with respect to the Assets not covered by valid and collectible
insurance, nor, to Seller's knowledge, has there been any event or circumstance
which has had, or reasonably could be expected to have, a material adverse
effect on the ownership of the Assets or the operation of the Business; (b) any
change by Seller in its financial or Tax accounting principles or methods,
except insofar as required by GAAP or applicable law; (c) any sale or
encumbrance of any of the Assets except in the ordinary course of business; or
(d) any adverse change in Seller's relationship with its material lenders,
suppliers or customers which has had, or reasonably could be expected to have, a
material adverse effect on the ownership of the Assets or the operation of
Business. Seller has no reason to believe that any such adverse change may be
reasonably likely to occur.
3.23 Seller's Financial Condition. No insolvency proceedings of any
----------------------------
character, including, without limitation, bankruptcy, receivership,
reorganization, composition or arrangement with creditors, voluntary or
involuntary, affecting the Business are pending, or to Seller's knowledge,
threatened, and Seller has made no assignment for the benefit of creditors, nor
taken any action with a view to, or which would constitute a basis for, the
institution of any such insolvency proceedings.
15
3.24 No Third Party Options. There are no existing agreements with, options
----------------------
or rights of, or commitments to any Person, other than to Buyer, to acquire any
of the Assets or any interest therein.
3.25 Full Disclosure. No representation or warranty by Seller contained in
---------------
this Agreement (including the schedules hereto), or in any certificate furnished
pursuant to this Agreement, contains or will contain any untrue statement of a
material fact, or omits or will omit to state any material fact necessary, in
light of the circumstances under which it was or will be made, in order to make
the statements herein or therein made not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation validly
------------------------------------
existing and in good standing under the laws of the State of Delaware.
4.2 Authorization and Binding Obligation. Buyer has the requisite power and
------------------------------------
authority to execute, deliver, and perform this Agreement and any Ancillary
Agreements and all necessary action on the part of Buyer has been duly and
validly taken to authorize the execution, delivery and performance of this
Agreement and the Ancillary Agreements. This Agreement has been duly executed
and delivered by Buyer and constitutes the legal, valid and binding obligation
of Buyer enforceable against Buyer, and each of the Ancillary Agreements to be
delivered by Buyer, when executed and delivered at Closing, will constitute a
valid and binding obligation of Buyer, enforceable in accordance with its terms,
except as provided by bankruptcy, insolvency, fraudulent conveyance or similar
laws affecting creditors' rights generally and general equitable principles.
4.3 Absence of Conflicting Agreements or Consents. No consent,
---------------------------------------------
authorization, approval, order, license, certificate or permit of or from, or
declaration or filing with any federal, state, local or other governmental
authority or any court or other tribunal, and no consent or waiver of any party
to any contract to which Buyer is a party is required for the execution,
delivery or performance of this Agreement or any Ancillary Agreement. Neither
the execution, delivery or performance of this Agreement or any Ancillary
Agreement (with or without the giving of notice, the lapse of time, or both) nor
the consummation of the transactions contemplated hereby or thereby: (i) will
conflict with the certificate of incorporation of Buyer; (ii) will conflict
with, result in a breach of, or constitute a default under any applicable law,
judgment, order, injunction, decree, rule, regulation or ruling of any court or
governmental instrumentality or (iii) will conflict with, result in a breach of,
constitute a default under, permit any party to terminate, modify, accelerate
the performance of or cancel the terms of, any agreement, lease, instrument of
indebtedness, license or other obligations to which Buyer is a party, or by
which Buyer may be bound, such that Buyer could not acquire the Assets or
operate the Assets.
16
4.4 Brokerage. There are no claims for brokerage commissions, finders' fees
---------
or similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement binding upon Buyer. Buyer shall
pay, and hold Seller harmless against, any liability, loss or expense
(including, without limitation, reasonable attorneys fees and out-of-pocket
expenses) arising in connection with any such claim.
ARTICLE V
COVENANTS
5.1 Further Assurances. From and after the Closing, Seller shall from time
------------------
to time, at the request of, and without further cost and expense to Buyer, take
such actions, and shall execute and deliver to Buyer such further deeds, bills
of sale or other transfer documents as may be reasonably requested by Buyer in
order to more effectively consummate the transactions contemplated hereby.
5.2 Accounts Receivable. At Closing, Seller shall deliver to Buyer a true,
-------------------
correct and complete detailed statement (certified by a duly authorized
financial officer of Seller) as of the Closing Date of each Account Receivable.
For the one hundred-twenty (120) day period following the Closing Date (the
"Collection Period"), Buyer shall, on Seller's behalf, use its commercially
-----------------
reasonable efforts to collect such Accounts Receivable in accordance with
Buyer's customary billing and collection practices; provided, however, that
-------- -------
Buyer shall not commence litigation, employ counsel or engage the services of a
collection agency to effect such collection without Seller's prior written
consent, nor shall Buyer have any obligation to compromise, adjust, concede or
settle any account receivable generated after the Closing Date, or otherwise
grant any credit or allowance, to effect the collection of an Account
Receivable. Absent written evidence that an account debtor owing an Account
Receivable is disputing in good faith any portion of such Account Receivable or
that any payment received from such account debtor corresponds to a particular
account receivable, any payments received by Buyer during the Collection Period
from such account debtor shall be presumed to represent payment on the most-aged
account receivable then owing from such account debtor, whether the account
receivable is for the account of Buyer or Seller. Any and all such Accounts
Receivable collected by Buyer on Seller's behalf shall be remitted to Seller
within five Business Days after the end of each calendar month during the
Collection Period. Upon expiration of the Collection Period, Buyer shall have no
further obligation to collect the Accounts Receivable on Seller's behalf. From
and after the Closing Date through the expiration of the Collection Period,
Seller agrees not to institute legal proceedings or engage the services of a
collection agency to collect any Accounts Receivable without Buyer's prior
written consent.
5.3 Taxes, Fees and Expenses. All sales, use, transfer, and purchase Taxes
------------------------
and fees, if any, arising out of the transfer of the Assets pursuant to this
Agreement shall be paid by Seller. Except as otherwise provided in this
Agreement, each party shall pay its own costs and expenses incurred in
connection with the authorization, preparation, execution, and performance of
this Agreement, including, without limitation, all fees and expenses of counsel,
accountants, agents and other representatives.
17
5.4 Bulk Sales Law. Buyer hereby waives compliance by Seller with the
--------------
provisions of Article 6 of the Uniform Commercial Code - Bulk Transfers and the
Bulk Sales Act and any other applicable United States, state or provincial bulk
sales act or statute, if applicable ("Bulk Sales Law"), and Seller warrants and
--------------
agrees to pay and discharge when due all claims of creditors which could be
asserted against Buyer by reason of such noncompliance to the extent that such
liabilities arise before the Closing, and agrees to protect, defend, hold
harmless and indemnify Buyer from and against any and all such claims and
demands pursuant to the procedures set forth in Article VII hereof which shall
-----------
apply thereto in all respects in the event liability for noncompliance with the
Bulk Sales Law arises at any time following the Closing.
5.5 Confidentiality. Except as necessary for the consummation of the
---------------
transactions contemplated hereby, each party hereto shall keep confidential the
economic terms of this Agreement and any information which is obtained from the
other party in connection with the transactions contemplated hereby, except to
the extent that such materials or information are or become readily available to
the public, have been obtained from independent sources, were known by either
party on a non-confidential basis prior to disclosure to such party or are
required to be disclosed in public filings or otherwise by applicable law.
5.6 Noncompetition and Nonsolicitation.
----------------------------------
(a) As additional consideration for Buyer's agreement to purchase the
Assets and to pay the Purchase Price to Seller, each Seller, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇ (collectively, the "Restricted Parties") has agreed to the
------------------
noncompetition, nonsolicitation and noninterference provisions set forth in
subparagraphs (b), (c) and (d) below (collectively, the "Restrictive Covenant").
--------------------
Each of the Restricted Parties hereby represents and acknowledges that: (i) the
Restrictive Covenant is being entered into in connection with Seller's sale of
the Assets to Buyer and (ii) in the absence of the Restricted Parties agreeing
to be bound by the terms and conditions of the Restrictive Covenant, the sale
would not be consummated by Buyer.
(b) For a period of twenty-four (24) months following the Closing Date
(the "Noncompete Period"), each of the Restricted Parties agrees that such party
-----------------
will not, within the Market, directly or indirectly, carry on, engage in, assist
in or have any financial interest in, or otherwise participate or be involved in
any way in, as an owner, partner, member, employee, agent, officer, board
member, consultant, independent contractor or shareholder, any outdoor
advertising business that is competitive with the Buyer's use and operation of
the Assets. Nothing contained herein shall prohibit any of the Restricted
Parties from being a passive owner of not more than five percent (5%) of the
outstanding stock of any class of securities of a corporation or other entity
which is publicly traded and in which such Restricted Party has no active
participation. Notwithstanding the foregoing, nothing contained herein shall
prohibit any of the Restricted Parties from continuing to own or operate any of
the advertising displays referenced on Schedule 5.6 hereto. Nothing in this
------------
Section 5.6 shall be deemed to prohibit the Restricted Parties from engaging in
-----------
activities competitive with Buyer in connection with (i) the advertising
displays referred to in Schedule 5.6, (ii) the development of the lease sites
------------
referred to on Schedule 5.6, (iii) their ownership or operation of Capital
------------
Mobile Media LLC or (iv) their ownership or operation of ▇▇▇ ▇▇▇▇▇▇/Capital LLC.
18
(c) Each of the Restricted Parties further acknowledges and agrees
that for a period of five (5) years from and after the Closing Date that such
party shall not knowingly take any action, or cause any other person to take any
action, which would impede, prohibit, restrict or interfere in any way with
Buyer's ability to own or operate the Assets.
(d) During the Noncompete Period, each of the Restricted Parties will
not solicit for employment any employee of Buyer if such Person is then, or was
at any time within the preceding one (1) year, an employee of Buyer, its
subsidiaries or its Affiliates.
(e) If, at the time of enforcement of the Restrictive Covenant, a
court shall hold that the duration, scope, area or other restrictions stated
therein are unreasonable, each of the Restricted Parties agrees that reasonable
maximum duration, scope, area or other restrictions may be substituted by such
court for the stated duration, scope, area or other restrictions and upon
substitution by such court, this Agreement shall be automatically modified
without further action by the parties hereto.
(f) Each of the Restricted Parties hereby agrees that damages at law,
including, but not limited to, monetary damages, would be an insufficient remedy
to Buyer in the event that the Restrictive Covenant is violated and that, in
addition to any remedies or rights that may be available to Buyer, all of which
other remedies or rights shall be deemed to be cumulative, retained by Buyer and
not waived by the enforcement of any remedy available hereunder, including, but
not limited to, the right to ▇▇▇ for monetary damages, Buyer shall also be
entitled, upon application to a court of competent jurisdiction, to obtain
injunctive relief, including, but not limited to, a temporary restraining order
or temporary, preliminary or permanent injunction, to enforce the Restrictive
Covenant, all of which shall constitute rights and remedies to which Buyer may
be entitled.
5.7 Financial Information. Seller hereby covenants and agrees that, unless
---------------------
otherwise specifically provided in this Agreement, any financial information
delivered or required to be delivered pursuant to this Agreement and any
calculations required to be made pursuant to this Agreement have been or shall
be prepared or calculated in accordance with GAAP. At all times after the date
hereof, Seller shall, and shall cause all of Seller's representatives (including
Seller's independent public accountants) to, cooperate in all reasonable
respects with the efforts of Buyer and Buyer's independent auditors to prepare
such audited and interim unaudited financial statements with respect to Buyer's
ownership of the Assets as Buyer may reasonably determine are necessary in
connection with any filing required to be made by it or any of its Affiliates
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
------------
the Securities Act of 1933, as amended (the "Securities Act"). Seller shall use
--------------
commercially reasonable efforts to cause its independent public accountants to
make available to Buyer and its representatives all of their work papers related
to the financial statements or tax returns of Seller (to the extent they relate
to the Assets or the operation of the Business) and to provide Buyer's
independent public accountants with full access to those personnel who
previously have been involved in the audit or review of Seller's financial
statements or tax returns, subject to any limitations imposed by Seller's
independent accountants. Any reasonable out-of-pocket costs incurred by Seller
in connection with Seller's obligations under this Section 5.12 shall be
------------
19
reimbursed by Buyer within a reasonable time after Buyer's receipt of reasonably
detailed information regarding such costs.
5.8 Employee Matters. The parties hereto acknowledge and agree that Buyer
----------------
is not a successor employer of Seller's employees for any purpose, was not
required to employ any of such employees and has no liability whatsoever with
respect to any employee of Seller arising from or related to such employee's
employment relationship with Seller. Buyer intends to offer employment only to
those persons listed on Schedule 5.8 hereto. Buyer will offer employment as of
------------
the Closing Date to all of the persons listed on Schedule 5.8 on such terms of
------------
employment as may be determined by Buyer in its sole and absolute discretion.
All employees of Seller who are employed by Buyer on or after the Closing Date
shall be new employees of Buyer and any prior employment by Seller of such
employees shall not affect entitlement to, or the amount of, salary or other
cash compensation, current or deferred, which Buyer may make available to its
employees. Seller shall be responsible for any debt, liability or duty to pay of
any nature whatsoever, whether secured, unsecured, recourse, non-recourse,
liquidated, unliquidated, accrued, absolute, fixed contingent, ascertained,
unascertained, known, unknown or otherwise, including without limitation,
liabilities and obligations under executory contracts, to those employees not
offered employment by Buyer, and Buyer shall have no obligations whatsoever with
respect to such employees.
5.9 Compliance with Laws.
--------------------
(a) Buyer may be entitled to indemnification from Seller to the extent
that any Advertising Display was not in compliance with any applicable law or
ordinance, as such law or ordinance was in effect prior to the Closing Date.
Seller agrees, as further provided herein, to indemnify, defend and hold
harmless Buyer and its Affiliates from and against any and all losses,
liabilities, damages, expenses, costs, fines and penalties including, without
limitation, any losses associated with Buyer's permanent inability to use any
such Advertising Display, incurred by or assessed against Buyer or its
Affiliates in connection with such noncompliance, up to a maximum of the amount
for each Advertising Display set forth on Schedule 5.9 hereto, as reduced as
------------
hereinafter provided in Section 5.9(b).
--------------
(b) The maximum indemnification liability amount with respect to any
Advertising Display shall be reduced such that the maximum amount at any time
for which Seller shall have indemnification responsibility with respect to an
Advertising Display for noncompliance with applicable laws prior to the Closing
Date shall equal the value of such Advertising Display as set forth on Schedule
--------
5.9 (the "Value"), minus (i) the product of: (x) a fraction, the numerator of
--- -----
which shall be the number of years, including any partial years (based upon the
number of days elapsed during such year over the actual number of days included
in such year) which have elapsed from the Closing Date to the date that notice
has been given to Seller of a Proceeding, as defined in Section 5.9(c) (an
--------------
"Indemnification Notice"), and the denominator of which shall be seven (7),
----------------------
multiplied by (y) the Value and, in the event the Proceeding seeks to
permanently enjoin the use of an Advertising Display, (ii) minus the product of:
(x) a fraction, the numerator of which shall be the number of years, including
any partial years (based upon the number of days elapsed during such year over
the actual number of days
20
included in such year ) which have elapsed from the date of the Indemnification
Notice through the date on which Buyer is first permanently unable to use the
Advertising Display or the date on which the Proceeding has been settled or the
date that Buyer, in accordance with Section 5.9(d) hereof, has decided not to
--------------
defend such Proceeding, and the denominator of which shall be fourteen (14),
multiplied by (y) the Value. If any such Proceeding (the "First Proceeding")
----------------
shall result in a Final Determination, settlement or other result which does not
render Buyer permanently unable to use such Advertising Display, the maximum
indemnification responsibility with respect to such Advertising Display in any
subsequently initiated Proceeding shall be determined as though there had been
no First Proceeding, except that in determining the maximum indemnification
liability with respect to the Advertising Display in such subsequent Proceeding,
the costs and expenses, including any fines, penalties and reasonable attorneys'
fees, incurred in defending or prosecuting the First Proceeding shall be added
to the Value. The parties acknowledge and agree, however, that in no event shall
the amount for which Seller shall be responsible under this Section 5.9(b)
--------------
exceed the amount set forth on Schedule 5.9 with respect to such Advertising
------------
Display. For purposes of illustration only, assuming the Closing had taken place
on October 1, 2001, (i) if Seller, on March 31, 2003, received an
Indemnification Notice regarding a Proceeding threatening to permanently enjoin
the use of an Advertising Display and Buyer was first permanently unable to use
the Advertising Display on September 30, 2004 as a result of such Proceeding,
Buyer would be entitled to indemnification for its losses for so much of the
Value as found by the formula: Value minus (x) (1.5/7) multiplied by the Value
minus (y) (1.5/14) multiplied by Value.
(c) Within five (5) Business Days after receipt by Buyer of any notice
of any judicial or administrative action or proceeding (each, a "Proceeding")
----------
with respect to any Advertising Display, Buyer shall deliver a copy of such
notice to Seller. Buyer shall control the defense of any such Proceeding, but
Seller may elect to participate in any such Proceeding at its sole cost and
expense. Notwithstanding the foregoing, Buyer may, after notice to Seller, in
its sole and absolute discretion, settle without Seller's consent any such
Proceeding to the extent such Proceeding seeks fines, penalties or other
monetary damages. Buyer shall be entitled to receive from Seller the reasonable
costs and expenses associated with the Proceeding prior to settlement thereof,
or prior to the time a Final Determination (as defined herein) has been made,
upon presentation of written evidence of such costs and expenses to Seller.
(d) In the event that in any Proceeding in which the party instituting
such Proceeding seeks an order or judgment permanently prohibiting the use of
any Advertising Display and Buyer, acting in good faith, has determined that the
party initiating such Proceeding may be entitled to such relief, Buyer may elect
to settle or may decline to defend such Proceeding prior to the time that a
Final Determination has been rendered regarding the prohibition on such
Advertising Display; provided, however, that prior to settling or declining to
-------- -------
defend such Proceeding, Buyer shall have exercised commercially reasonable
efforts to defend such Proceeding unless, in its reasonable business judgment,
Buyer has determined that in the absence of the settlement of such Proceeding or
by defending such Proceeding, Buyer would be materially adversely affected in
the operation of the Assets or with respect to its financial condition relative
to the threatened Asset. A "Final Determination" shall mean a judgment or
decision of a court of
21
competent jurisdiction or other applicable entity having authority to determine
the issues raised in a Proceeding, which judgment or decision is not subject to
appeal, reconsideration or review.
(e) If a Proceeding seeks the payment of fines, penalties, or monetary
damages, Seller may demand that Buyer (i) accept any such settlement offer made
to Buyer with respect to such monetary claims or (ii) make a settlement offer,
in the event Seller deems that it is commercially reasonable to do so. In the
event that Buyer, in its sole and absolute discretion, elects not to settle such
Proceeding when able to do so after demand by Seller, any further monetary
liability of Seller with respect to such Proceeding following the date such
Proceeding could have been settled on Seller's demand shall not exceed the
amount of money offered by Seller to be paid in connection with such proposed
settlement plus the costs and expenses associated with defending the Proceeding.
If a Proceeding seeks the permanent removal of an Advertising Display, Seller
may require Buyer to: (i) accept any settlement offer made to Buyer or (ii) make
a settlement offer, in the event Seller deems that is commercially reasonable to
do so. If the settlement results in the permanent inability of the Buyer to use
any such Advertising Display, Seller shall pay the remaining amount required to
be paid pursuant to Section 5.9(a) with respect to the relevant Advertising
--------------
Display. Buyer acknowledges and agrees that it shall give Seller notice of any
proposed settlement offer or opportunity in any Proceeding.
(f) During the course of any Proceeding, Buyer shall promptly deliver
to Seller, and Seller shall promptly deliver to Buyer, copies of any filings or
other written communications by such party with the relevant court or
administrative agency, and such party shall use its commercially reasonable
efforts promptly to provide to the other party the substance of any material
oral communications with such court or administrative agency.
(g) In the event that Seller makes an indemnification payment pursuant
to this Section 5.9 as a result of a Proceeding alleging that Buyer is
-----------
permanently unable to use any Advertising Display, other than an indemnification
payment related to costs and expenses associated with defending or settling any
such action where Buyer will continue to operate the Advertising Display, Buyer
shall, at the time of such payment from Seller, transfer to Seller all of
Buyer's right, title and interest in the Advertising Display and the related
assets required for the operation of the Advertising Display.
(h) In the event that Buyer is entitled to indemnification from Seller
pursuant to this Section 5.9, Buyer first shall be reimbursed from the escrow
-----------
deposit pursuant to the terms and conditions of the Indemnification Escrow
Agreement provided for in Section 2.5. To the extent that the amount of such
-----------
escrow deposit is insufficient to reimburse Buyer in accordance with Section
-------
5.9(a), Buyer shall be entitled to indemnification from Seller directly.
------
5.10 Additional Site. Seller hereby acknowledges and agrees that it shall
---------------
use its commercially reasonable efforts to enter into an extension of the
existing lease for the site located at ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
(the "Additional Site") on terms acceptable to Buyer. The parties hereto
---------------
acknowledge and agree that in the event that Seller is able to deliver a lease
extension for the Additional Site to Buyer within one hundred fifty (150) days
from the date of Closing, along with the additional assets related to the
continued operation
22
of the Additional Site, pursuant to definitive documentation containing the
representations, warranties and covenants that would have been made with respect
to such assets had such assets been delivered on the Closing Date, Buyer shall
be obligated to pay Seller cash in the amount of Six Hundred Forty Three
Thousand Three Hundred Eighty Three Dollars ($643,383) upon the delivery to
Buyer of the lease extension and the assets related to the ownership and
operation of the Additional Site. Notwithstanding the foregoing, Sixty Four
Thousand Three Hundred Thirty Eight Dollars and Thirty Cents ($64,338.30) shall
be paid into escrow at the time of delivery of the Additional Site to Buyer and
shall be retained by the escrow agent pursuant to the terms of the
Indemnification Escrow Agreement. Failure by Seller to deliver the Additional
Site will not constitute a breach of this Agreement, but Seller will forfeit its
right to receive the additional compensation for the delivery of such Additional
Site as provided in this Section 5.10. The Additional Site shall be included as
------------
a Retained Site on Schedule A to the Sales Representation Agreement being
----------
executed simultaneously herewith, and shall be subject to the terms and
conditions thereof, unless and until it is transferred to Buyer as provided
herein.
5.11 Condemnation Indemnity. Notwithstanding any provision contained herein
----------------------
to the contrary, in the event that the Site Lease related to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ is
terminated by reason of a condemnation proceeding pursuant to the applicable
provisions of New York law (the "Condemnation Proceeding") and the related
-----------------------
Advertising Display is required to be removed by reason of such Condemnation
Proceeding prior to May 30, 2003, or, if such Site Lease has been extended
pursuant to the terms of Section 15 thereof, May 31, 2007, Seller acknowledges
that it shall pay to Buyer the "Repayment Amount" (as hereinafter defined) with
respect to such Site Lease. The Repayment Amount with respect to such Site Lease
shall equal: (a) the product (the "Product") of (i) a fraction, the numerator of
-------
which shall be 7 minus the number of years, including any partial years (based
upon the number of days elapsed during such year over the actual number of days
included in such year) elapsed after the Closing Date through the date that such
Advertising Display is required to be and has been removed, and the denominator
of which shall be 7, and (ii) the value of such Site Lease assigned thereto on
Schedule 5.9, minus (b) the amount of any award or settlement payable to Buyer
------------
in the Condemnation Proceeding or Further Proceeding (as hereinafter defined).
Buyer shall deliver a copy of any offer, pursuant to the applicable provisions
of New York law, from any agency possessing the power of eminent domain to
purchase such Site Lease or any assets related thereto, as well as any notice of
the commencement of any such Condemnation Proceeding and all actions, including
proceedings to determine just compensation for such acquisition pursuant to the
applicable provisions of New York law, which may be instituted in connection
therewith (the "Further Proceedings"). Seller may elect to participate in any
-------------------
Condemnation Proceeding, Further Proceedings or settlement discussions related
thereto at its sole cost and expense. Buyer may not accept any amount offered by
way of settlement either prior to, or during, the Condemnation Proceeding or any
Further Proceeding (the "Offer") without the prior written consent of Seller,
-----
which consent shall not be unreasonably withheld. In the event Buyer wishes to
accept the Offer, and Seller does not consent thereto, Seller may, at its sole
cost and expense, assume control of the Condemnation Proceeding or any Further
Proceeding and shall indemnify and hold Buyer harmless from all costs, expenses
and disbursements arising out of or relating to the conduct of the Condemnation
Proceeding or any Further Proceeding up to Seller's assumption of control. In
determining the
23
Repayment Amount, in the event Seller has assumed control of the Condemnation
Proceeding or any Further Proceeding prior to the removal of the Advertising
Display, for purposes this Section 5.11, the date that the Advertising Display
------------
has been deemed to have been finally removed shall be the date on which Seller
has assumed control of the Condemnation Proceeding or Further Proceeding, unless
such removal had earlier occurred. In the event that Seller has assumed control
of the Condemnation Proceeding or any Further Proceeding, Seller shall be
entitled to recover its reasonable costs and expenses associated with such
control of the Condemnation Proceeding or Further Proceeding out of the positive
difference, if any, (but not to exceed such positive difference) between (i) any
positive difference between the amount of any award or settlement payable to
Buyer in the Condemnation Proceeding or Further Proceeding generated by Seller
following Seller's assumption of control of the Condemnation Proceeding or
Further Proceeding and the settlement amount that Buyer would have obtained had
Seller not assumed control of such Condemnation Proceeding or Further Proceeding
and (ii) the Repayment Amount to which Buyer would have been entitled had Seller
not assumed control of the Condemnation Proceeding or Further Proceeding.
5.12 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Lease. Seller hereby acknowledges that Buyer should
-----------------------
be entitled, following the assignment of Seller's rights thereunder to Buyer, to
continue to lease the premises located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ through the
expiration of the term of the ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Site Lease (the "Centre Street
-------------
Lease"), notwithstanding the provisions of Paragraph 21 of the Centre Street
-----
Lease. If at any time Buyer is required to institute or to defend any Proceeding
in connection with a threatened termination or modification of the Centre Street
Lease by the lessor thereunder by reason of the provisions of Paragraph 21 of
the Centre Street Lease, Buyer shall be entitled to prosecute or to defend such
action and Seller shall be required to reimburse Buyer for one-half of Buyer's
expenses, including reasonable attorney's fees, incurred in prosecuting or
defending such Proceeding. In connection with any Proceeding, in the event that
Buyer's rights under the Centre Street Lease are terminated pursuant to a Final
Determination (as such term is defined in Section 5.9) as a result of the
-----------
invocation by the lessor thereof of the provisions of Paragraph 21 of the Centre
Street Lease prior to the expiration of the term of the Centre Street Lease,
Seller acknowledges that it shall be required to pay to Buyer the "Adjustment
Amount" (as hereinafter defined) with respect to the Centre Street Lease. The
Adjustment amount shall equal: (a) the product of (i) a fraction, the numerator
of which shall be 7 minus the number of years, including any partial years
(based upon the number of days elapsed during such year over the actual number
of days contained in such year) elapsed after the Closing Date through the date
of the Final Determination and the denominator of which shall be 7, and (ii) the
value of the Centre Street Lease assigned thereto on Schedule 5.9, minus (b) any
------------
amount which Buyer may recover in connection with the Proceeding regarding the
termination of the Site Lease.
5.13 Advertising Contract Covenant. Seller hereby represents, warrants,
-----------------------------
covenants and agrees that Buyer shall be able to secure an advertising contract
or contracts (collectively, the "Replacement Contract") for the Advertising
--------------------
Display located at ▇▇▇ ▇▇▇▇▇▇▇▇ which will generate net revenues to Buyer during
the twelve month period following the expiration of the existing Advertising
Contract for such location in an aggregate amount equal to or greater than
$125,000. Seller hereby further covenants that in the event that Buyer is unable
to secure a Replacement Contract which has generated an aggregate amount of net
revenue equal to or
24
greater than $125,000 during the twelve month period following the expiration of
the existing Advertising Contract that, as soon as is reasonably practicable
following receipt of written evidence of the actual net revenue generated by the
Advertising Display during such twelve month period, Seller shall remit to Buyer
the difference between $125,000 and the actual net revenue which was generated
by the Advertising Display during such twelve month period.
ARTICLE VI
CLOSING; TERMINATION AND RISK OF LOSS
6.1 Closing. The execution of this Agreement by the parties and the Closing
-------
shall take place simultaneously on the date hereof, and shall be held at the
offices of Buyer's attorney, or at such other place or time as shall be mutually
agreed upon by Buyer and Seller.
6.2 Deliveries by Seller. Prior to, or on the Closing Date, as applicable,
--------------------
Seller shall deliver or shall cause to be delivered to Buyer the following, in
form and substance reasonably satisfactory to Buyer and its counsel:
(a) Indemnification Escrow Agreement. A duly executed Indemnification
--------------------------------
Escrow Agreement, substantially in the form of Exhibit A hereto;
---------
(b) ▇▇▇▇ of Sale. A duly executed ▇▇▇▇ of Sale , substantially in the
------------
form of Exhibit B hereto.
---------
(c) Assignment Agreement. A duly executed Assignment and Assumption
--------------------
Agreement with respect to the Assumed Contracts, substantially in the form of
Exhibit C hereto;
---------
(d) Consents. A copy of each required Consent listed on Schedule 3.8;
-------- ------------
(e) Certified Resolutions. A certificate of Seller, dated as of the
---------------------
Closing Date, executed by an officer of Seller certifying that the resolutions,
as attached to such certificate, were duly adopted by such Seller's board of
directors and shareholders, authorizing and approving the execution of this
Agreement and the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby and that such resolutions remain in full force
and effect;
(f) Licenses, Contracts, Business Records, Etc. To the extent they are
------------------------------------------
in possession of Seller, copies of all Licenses, Assumed Contracts, plans,
engineering records, and all files and records used by Seller in connection with
the ownership of the Assets or the operation of the Assets;
(g) Good Standing. Certificates of Good Standing of Seller issued by
-------------
the Special Deputy Secretary of State of the State of New York and by the New
York Department of Taxation, dated within thirty (30) days of the Closing Date
and brought down to the Closing Date by facsimile of such Comptroller or
Treasurer.
25
(h) Pay-Off Letters. Pay-off Letters evidencing payment of Seller's
---------------
obligations with respect to any outstanding loan agreements or capital leases
which are secured by the Assets;
(i) UCC-3 Termination Statements. UCC-3 Termination Statements
----------------------------
terminating or releasing any outstanding Liens against the Assets;
(j) Estoppel Certificates. Seller shall have delivered to Buyer such
---------------------
estoppel certificates as Buyer shall have reasonably requested;
(k) Agreement Regarding ▇▇▇ ▇▇▇▇▇▇▇▇. A counterpart of that certain
--------------------------------
agreement relating to the transfer of Seller's rights to Buyer with respect to
the Advertising Display located at ▇▇▇ ▇▇▇▇▇▇▇▇; and
(l) Other. Duly executed copies of all other deeds, endorsements,
-----
assignments, consents and instruments as may be necessary to transfer the Assets
to Buyer.
6.3 Deliveries by Buyer. Prior to, or on the Closing Date, as applicable,
-------------------
Buyer shall deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and its counsel:
(a) Closing Payment. The Closing Payment, as provided in Section 2.5
--------------- -----------
hereof;
(b) Assumption Agreement. A duly executed counterpart of the
--------------------
Assignment and Assumption Agreement with respect to the Assumed Contracts,
substantially in the form of Exhibit B hereto;
---------
(c) Good Standing. A certificate of good standing of Buyer issued by
-------------
the Secretary of State of Delaware, dated within thirty (30) days of the Closing
Date and brought down to the Closing Date by telegram of the Secretary of State
of Delaware; and
(d) Agreement Regarding ▇▇▇ ▇▇▇▇▇▇▇▇. A counterpart of that certain
--------------------------------
agreement relating to the transfer of Seller's rights to Buyer with respect to
the Advertising Display located at 183 Broadway.
ARTICLE VII
SURVIVAL AND INDEMNIFICATION
7.1 Survival of Representations, Warranties and Covenants.
-----------------------------------------------------
(a) Notwithstanding any examination made for or on behalf of any of
the parties hereto, the knowledge of any officer, director, employee or agent of
any of the parties hereto or any of their respective Affiliates, or the
acceptance of any certificate contemplated hereby, all representations and
warranties contained in this Agreement shall be deemed
26
continuing representations and warranties and shall survive the Closing Date for
a period of two (2) years except for any breach of the representations and
warranties contained in Section 3.12 hereof, which shall survive the Closing
------------
Date until the expiration of the applicable statute of limitations, the
representations and warranties contained in Section 3.18 hereof, which shall
------------
survive the Closing Date for ten (10) years, and the representations and
warranties contained in Section 3.17 hereof, which shall survive the Closing
------------
Date indefinitely.
(b) Unless a specified period is set forth in this Agreement (in which
event such period will control), the covenants in this Agreement will survive
the Closing and remain in effect indefinitely provided that any claim for
indemnification must be brought prior to the expiration of any applicable
statute of limitations.
7.2 Indemnification by Seller. Seller agrees to indemnify, defend and hold
-------------------------
harmless Buyer and its Affiliates and their respective directors, officers,
partners, employees, agents and representatives from and against:
(a) Any and all losses, liabilities or damages resulting from any
untrue representation or breach of any warranty by Seller contained herein or in
any certificate, document or instrument delivered to Buyer hereunder;
(b) Any and all losses, liabilities or damages resulting from the
nonfulfillment of any covenant or other agreement of the Seller contained herein
or in any certificate, document or instrument delivered to Buyer hereunder;
(c) Any and all losses, liabilities or damages resulting from Seller's
ownership of the Assets or operation or control of the Business prior to the
Closing Date, including, without limitation, any and all liabilities arising
under the Licenses, the Assumed Contracts or the Site Leases which relate to
events occurring prior to the Closing Date;
(d) Any Excluded Liabilities;
(e) Any failure to comply with the Bulk Sales Law; and
(f) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs or expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or in enforcing this indemnity.
7.3 Indemnification by Buyer. Buyer agrees to indemnify, defend and hold
------------------------
harmless Seller and its Affiliates and their respective directors, officers,
partners, employees, agents and representatives from and against:
(a) Any and all losses, liabilities or damages resulting from any
untrue representation or breach of warranty by Buyer contained herein or in any
certificate, document or instrument delivered to Seller hereunder;
27
(b) Any and all losses, liabilities or damages resulting from the
nonfulfillment of any covenant or other agreement of Buyer contained herein or
in any certificate, document or instrument delivered to Seller hereunder;
(c) Any and all losses, liabilities or damages resulting from Buyer's
ownership of the Assets on and after the Closing Date, including, without
limitation, any and all liabilities arising under the Assumed Contracts which
relate to events occurring after the Closing Date; or
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs or expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or in enforcing this indemnity.
7.4 Procedure for Indemnification. The procedure for indemnification shall
-----------------------------
be as follows:
(a) The party claiming indemnification (the "Claimant") shall give
--------
reasonably prompt notice to the party from whom indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
------------------
third party, specifying: (i) the factual basis for such claim and (ii) the
amount of the claim. If the claim relates to an action, suit or proceeding filed
by a third party against Claimant, such notice shall be given by Claimant within
ten (10) Business Days after written notice of such action, suit or proceeding
is received by Claimant.
(b) Following receipt of notice from the Claimant of a claim, the
Indemnifying Party shall have twenty (20) Business Days (or such shorter period
of time as may be required to respond to the subject litigation or proceeding)
to make such investigation of the claim as the Indemnifying Party deems
necessary or desirable. For the purposes of such investigation, the Claimant
agrees to make available to the Indemnifying Party or its authorized
representative(s) the information relied upon by the Claimant to substantiate
the claim. If the Claimant and the Indemnifying Party agree at or prior to the
expiration of said 20-day period (or any mutually agreed upon extension thereof)
to the validity and amount of such claim, the Indemnifying Party shall
immediately pay to the Claimant the full amount of the claim. If the Claimant
and the Indemnifying Party do not agree within said period (or any mutually
agreed upon extension thereof), the Claimant may seek appropriate legal remedy.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification hereunder, the Indemnifying Party shall
have the right at its own expense, to participate in or assume control of the
defense of such claim, and the Claimant shall cooperate fully with the
Indemnifying Party. If the Indemnifying Party elects to assume control of the
defense of any third-party claim, the Claimant shall have the right to
participate in the defense of such claim and retain separate co-counsel at the
Indemnifying Party's expense; provided if requested to participate at
Indemnifying Party's request or if the Claimant reasonably believes (based upon
an opinion of counsel) that a conflict of interest exists between Claimant and
the Indemnifying Party, then the Claimant will be reimbursed for reasonable
expenses of
28
counsel. The Indemnifying Party will select counsel reasonably satisfactory to
the Claimant. The Indemnifying Party will not consent to an entry of judgment or
settlement without release of liability and, with respect to nonmonetary terms,
the Claimant's consent (not to be unreasonably withheld or delayed).
(d) If a claim, whether between the parties or by a third party,
requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party does not elect to assume control or
otherwise participate in the defense of any third party claim, it shall be bound
by the results obtained by the Claimant with respect to such claim.
7.5 Limitations on Indemnification.
------------------------------
(a) No individual representative of Seller or Buyer shall be
personally liable for any losses, liabilities or damages under the provisions
contained in this Article 7. Nothing herein shall relieve either party of any
---------
liability to make any payment expressly required to be made by such party
pursuant to this Agreement.
(b) Buyer shall not be entitled to indemnification under Section 7.2
-----------
unless and until the amount for which Buyer is entitled to indemnification under
this Agreement exceeds Twenty Five Thousand Dollars ($25,000) (the "Basket") in
------
the aggregate for all such matters, whereupon Buyer shall be entitled to
indemnification for all losses, liabilities, damages, costs and expenses which
have been incurred; provided, however, that the Basket shall not apply to claims
-------- -------
based on intentional fraud by Seller.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, Buyer acknowledges and agrees as follows: the maximum aggregate
liability of Seller to Buyer for any and all losses, liabilities or damages
incurred or suffered by Buyer (including losses, liabilities or damages with
respect to claims of third parties) pursuant to this Agreement and the Ancillary
Agreements shall not exceed the sum of the Purchase Price and the amount, if
any, paid by Buyer for the Additional Site in accordance with Section 5.10,
------------
regardless of whether Buyer seeks to recover pursuant to this Article 7, Section
--------- -------
5.9, Section 5.11, Section 5.12, Section 5.13, or otherwise regardless of the
--- ------------ ------------ ------------
form of action, whether in contract or tort, including negligence, and
regardless of whether or not Seller and Buyer are notified of the possibility of
damages to Buyer; provided, however, that nothing herein shall limit the
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remedies Buyer may have for losses, liabilities or damages based on intentional
fraud by Seller or in any claim for indemnification Buyer may have with respect
to Section 2.8 of this Agreement.
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ARTICLE VIII
MISCELLANEOUS
8.1 Notices. All notices, demands, and requests required or permitted to be
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given under the provisions of this Agreement shall be: (i) in writing, (ii)
delivered by personal delivery, or sent by commercial delivery service or
registered or certified mail, return receipt requested or sent by telecopy,
(iii) deemed to have been given on the date of personal delivery or the date set
forth in the records of the delivery service or on the return receipt or, in the
case of a telecopy, upon confirmation thereof and (iv) addressed as follows:
If to Seller:
Capital Advertising, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Davidoff & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer:
NextMedia Outdoor, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Weil, Gotshal & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
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8.1.
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8.2 Benefit and Binding Effect. Neither party may assign this Agreement
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without the prior written consent of the other party hereto; provided, however,
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that Buyer may assign this Agreement: (i) to any of its wholly owned
subsidiaries or Affiliates or (ii) upon five days prior written notice to
Seller, to any Person in connection with (x) the sale of all or substantially
all of Buyer's assets, (y) any dissolution, merger, consolidation or other
reorganization of Buyer or (z) the sale or transfer of at least fifty percent
(50%) of the capital stock of the Buyer. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
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8.3 Headings. The headings herein are included for ease of reference only
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and shall not control or affect the meaning or construction of the provisions of
this Agreement.
8.4 Gender and Number. Words used herein, regardless of the gender and
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number specifically used, shall be deemed and construed to include any other
gender, masculine, feminine or neuter, and any other number, singular or plural,
as the context requires.
8.5 Counterparts. This Agreement may be signed in any number of
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counterparts with the same effect as if the signature on each such counterpart
were upon the same instrument.
8.6 Entire Agreement. This Agreement, all schedules and exhibits hereto
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and all documents, writings, instruments and certificates delivered or to be
delivered by the parties pursuant hereto collectively represent the sole and
entire understanding and agreement between Buyer and Seller with respect to the
subject matter hereof. All schedules, and exhibits attached to this Agreement
shall be deemed part of this Agreement and incorporated herein, as if fully set
forth herein. This Agreement supersedes all prior negotiations and
understandings between Buyer and Seller whatsoever, and all letters of intent
and other writings relating to such negotiations and understandings.
8.7 Amendment. This Agreement cannot be amended, supplemented or modified
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except by an agreement in writing which makes specific reference to this
Agreement or an agreement delivered pursuant hereto, as the case may be, and
which is signed by the party against which enforcement of any such amendment,
supplement or modification is sought.
8.8 Severability. If in any jurisdiction any provision of this Agreement
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or its application to any party or circumstance is restricted, prohibited or
unenforceable, such provision shall, as to such jurisdiction, be ineffective
only to the extent of the restriction, prohibition or unenforceability without
invalidating the remaining provisions hereof and without affecting the validity
or enforceability of such provision in any other jurisdiction or its application
to other parties or circumstances. In addition, if any one or more of the
provisions contained in this Agreement shall for any reason in any jurisdiction
be held excessively broad as to time, duration, geographical scope, activity or
subject, it shall be construed, by limiting and reducing it, so as to be
enforceable to the extent compatible with the applicable law of such
jurisdiction as it shall then appear.
8.9 Governing Law. This Agreement will be governed by, and construed and
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enforced in accordance with, the laws of the State of New York, without regard
to conflicts of law principles thereof.
8.10 Jurisdiction. THE PARTIES HERETO AGREE THAT ANY DISPUTE BETWEEN OR
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AMONG THE PARTIES HERETO SHALL BE BROUGHT BEFORE EITHER (i) THE SUPREME COURT OF
THE STATE OF NEW YORK, COUNTY OF NEW YORK, OR (ii) THE UNITED STATES DISTRICT
COURT IN THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE THE
EXCLUSIVE JURISDICTION OVER ALL DISPUTES AND MATTERS RELATING TO THE
INTERPRETATION AND ENFORCEMENT OF THIS
31
AGREEMENT, AND EACH OF THE PARTIES EXPRESSLY CONSENTS TO SUCH JURISDICTION.
32
This Agreement has been executed by the parties hereto as of the date first
above written.
NEXTMEDIA OUTDOOR, INC.
By:_____________________
Name:___________________
Title:__________________
CAPITAL ADVERTISING, INC.
By:_____________________
Name:___________________
Title:__________________
CAPITAL MEDIA II, INC.
By:_____________________
Name:___________________
Title:__________________
CAPITAL OUTDOOR, INC.
By:_____________________
Name:___________________
Title:__________________
The following individuals, solely with respect to
Section 5.6 hereof:
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________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________
▇▇▇▇▇ ▇▇▇▇