Exhibit 10.27
AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
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This Amendment No. 2 to Asset Purchase Agreement (this "Amendment") is made
and entered into this 7th day of August, 2001, by and among CityVision LLC, a
Delaware limited liability company, CityVision Mid-America, LLC, a Delaware
limited liability company, CityVision Connecticut, LLC, a Connecticut limited
liability company, CityVision Massachusetts, LLC, a Delaware limited liability
company (collectively, "Seller"), NextMedia Outdoor, Inc., a Delaware
corporation ("Buyer") and, solely with respect to the amendments being made to
Section 5.12 of the Agreement (as defined below), both Triumph Holdings, LLC, a
Delaware limited liability company ("Triumph") and Xxxxx XxXxxxx.
WHEREAS, the parties to this Amendment entered into an Asset Purchase
Agreement dated as of January 31, 2001, as amended (the "Agreement");
WHEREAS, the transactions contemplated by the Agreement were consummated on
February 27, 2001;
WHEREAS, certain provisions of the Agreement were intended to be performed
by or otherwise to bind the parties following the closing of the transactions
contemplated by the Agreement, including, without limitation, the provisions
contained in Section 2.5, Section 5.12 and Article X of the Agreement; and
WHEREAS, the parties hereto desire to make certain amendments to the
Agreement to memorialize their current intent with respect to the subject matter
thereof.
NOW THEREFORE, in consideration of the premises, the covenants and the
agreements contained herein, the parties hereto hereby agree as follows:
SECTION 1. BUYOUT
Concurrently with the execution of this Amendment, Buyer shall pay to
Seller the sum of Six Hundred Thousand Dollars ($600,000) by wire transfer of
immediately available funds to an account designated by Seller in writing to
Buyer in full satisfaction of seventy-five percent (75%) of the Earn-Out amount
that would otherwise become due and payable to Seller in accordance with the
provisions of Section 2.5(b) of the Agreement at the end of the Earn-Out Period.
Seller shall be entitled to receive the remaining twenty-five percent (25%) of
the Earn-Out amount as provided in Section 2.5(b) of the Agreement, as amended
by Section 2.2(a) of this Amendment.
SECTION 2. AMENDMENTS
The Agreement is hereby amended as follows:
2.1 Section 1.1. Defined Terms. Section 1.1 of the Agreement shall be
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amended by deleting the definition of "Management Agreement" in its entirety and
replacing it with the following:
"Management Agreement" shall mean that certain Management Agreement,
as amended, dated as of February 27, 2001, between CityVision and Buyer."
Section 1.1 of the Agreement shall be amended further by deleting each
of the following definitions in their entirety: (i) "Notice Period"; (ii)
"Permitted Site"; (iii) "Permitted Site Notice"; (iv) "Permitted Site
Price"; and (v) "Third Party Price".
2.2 Section 2.5. Purchase Price.
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(a) Section 2.5(b) of the Agreement is hereby amended by deleting the
second sentence of Section 2.5(b) in its entirety and replacing it with the
following:
"For the purposes hereof, the "Earn-Out" shall mean an amount equal to
twenty-five percent (25%) of: (i) the sum of (x) Cash Flow (as defined in
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paragraph (c) below) attributable to the Assets and other Assets of the
Buyer purchased by Buyer in accordance with the terms and conditions of the
Management Agreement located on any Identified Site (as such term is
defined in the Management Agreement), plus (y) Cash Flow attributable to
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the Assets and other assets of the Buyer purchased by Buyer in accordance
with the terms and conditions of the Management Agreement located on any
Identified Site, which have been sold, assigned or transferred by Buyer
after the Closing Date to a third party at any time during the Earn-Out
Period, (ii) multiplied by seven (7), minus (iii) the sum of (x) the
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Closing Payment, (y) Capital Expenditures (as defined in the Management
Agreement) incurred by Buyer (or committed by Buyer to the extent any Cash
Flow has been generated with respect thereto) in connection with the
construction of any Advertising Displays during the Earn-Out Period and (z)
Overhead Costs and Development Costs (as such terms are defined in the
Management Agreement), (iv) plus the amount equal to the excess of Period
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Cash Flow (as defined below) over $1,250,000."
(b) Section 2.5(b) of the Agreement is hereby further amended by
deleting the last sentence, beginning with the phrase "Notwithstanding the
foregoing", in its entirety.
2.3 Section 5.12. Noncompetition and Nonsolicitation. Sections 5.12(a) and
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(b) of the Agreement are hereby amended by deleting Sections 5.12(a) and (b) in
their entirety and replacing them with the following:
(a) As additional consideration for Buyer's agreement to purchase the
Assets and to pay the Purchase Price to Seller, Triumph (the "Restricted
Party") has agreed to the noncompetition provision set forth in
subparagraph (b) below (the "Restrictive Covenant"). The Restricted Party
hereby acknowledges that (i) the Restrictive Covenant is being entered into
in connection with Seller's sale of the Assets, and (ii) in the absence of
the Restricted Party's agreeing to be bound by the terms and conditions of
the Restrictive Covenant, the sale would not have been consummated by
Buyer.
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(b) During the original term of the Management Agreement and for a
period of 18 months thereafter (the "Noncompete Period"), the Restricted
Party will not, within any of the Markets, 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 Business. Nothing herein shall prohibit the Restricted Party 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 engaged in such
business which is publicly traded and in which he/it has no active
participation.
2.4 Section 11.1. Notices. Section 11.1 of the Agreement is hereby amended
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by deleting the notice address for Seller in its entirety and replacing it with
the following:
If to any Seller:
CityVision, LLC
0 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx XxXxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxx
Gaberman & Parish, P.C.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
SECTION 3. REAFFIRMATION OF AGREEMENT
Except as expressly provided herein, the Agreement is not otherwise
amended, modified or affected by this Amendment, and the Agreement and the
obligations of the parties hereto thereunder are hereby ratified and confirmed
by the parties in all respects.
SECTION 4. CAPITALIZED TERMS
Any capitalized term used, but not otherwise defined, in this
Amendment shall have the meaning set forth in the Agreement.
SECTION 5. BINDING EFFECT
This Amendment shall benefit and bind the parties and their respective
assigns, successors, and legal representatives.
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SECTION 6. GOVERNING LAW
This Amendment shall be governed by and construed in accordance with
the laws of the State of New York, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
SECTION 7. COUNTERPARTS
This Amendment may be executed in multiple counterparts, each of which
shall constitute an original, but all of which shall be but one and the same
agreement.
[The Remainder of this Page Is Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
NEXTMEDIA OUTDOOR, INC.
By:_____________________________
Xxxx X. Xxxxxx
Vice President
CITYVISION, LLC
By: Triumph Holdings, LLC,
its Managing Member
By:_____________________________
Xxxxx X. Xxxxxxxx,
Manager
CITYVISION MID-AMERICA, LLC
By: CityVision, LLC,
its Managing Member
By: Triumph Holdings, LLC,
its Managing Member
By:_____________________________
Xxxxx X. Xxxxxxxx,
Manager
CITYVISION CONNECTICUT, LLC
By: CityVision, LLC,
its Managing Member
By: Triumph Holdings, LLC,
its Managing Member
By:_____________________________
Xxxxx X. Xxxxxxxx,
Manager
CITYVISION MASSACHUSETTS, LLC
By: CityVision, LLC,
its Managing Member
By: Triumph Holdings, LLC,
its Managing Member
By:_____________________________
Xxxxx X. Xxxxxxxx,
Manager
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first written above solely with respect to Section 5.12.
TRIUMPH HOLDINGS, LLC
By:_____________________________
Xxxxx X. Xxxxxxxx,
Manager
_____________________________
Xxxxx XxXxxxx
