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EXHIBIT 10.132
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT made and entered into this _____ day of August,
1996, by and between BOARDWORKS OUTDOOR ADVERTISING COMPANY, INC., a Florida
corporation, hereinafter referred to as "Seller", and XXXXXX OUTDOOR, INC., a
Florida corporation, hereinafter referred to as "Buyer."
W I T N E S S E T H :
WHEREAS, Seller is the owner of twenty-two (22) outdoor advertising
display structures and permits necessary to construct outdoor advertising
display structures in fourteen (14) additional locations, as described on
Exhibit A attached hereto ("Billboards"), real estate leasehold interests under
real property leases for each of the sites on which the Billboards are currently
located ("Land Leases"), permits necessary for the ownership and operation of
the constructed Billboards, leases of Billboard space with Billboard advertising
customers, and other related assets as will be more specifically described in
this Agreement (collectively, the "Assets") which Seller operates as part of
Seller's commercial billboard outdoor advertising business (such part
hereinafter referred to as the "Outdoor Advertising Business"), and
WHEREAS, Seller desires to sell, transfer, assign and convey the Assets
to Buyer subject to the terms, provisions and conditions of this Agreement, and
WHEREAS, Buyer desires to acquire from Seller said Assets subject to
the terms, provisions and conditions of this Agreement.
NOW, THEREFORE, in exchange for mutually agreeable consideration, the
parties hereby agree as follows:
1. Sale. Subject to the terms and conditions set forth in this
Agreement, Seller hereby agrees to sell, transfer, assign and deliver and Buyer
agrees to buy, on the Closing Date, subject to the terms and conditions set
forth herein, all of the Assets of the Outdoor Advertising Business free and
clear of all debts, liens, encumbrances or other liabilities.
2. Price. The total purchase price for the Assets shall be One Million
Three Hundred Thousand Dollars ($1,300,000). Within three (3) days of full
execution of this Agreement, Buyer shall make an xxxxxxx money deposit in the
amount of $100,000 with First Union National Bank, as escrow agent. Such deposit
shall be deposited in an interest-bearing escrow account. The deposit, together
with all interest earned thereon, shall be applied to the purchase price at
Closing. The purchase price shall be increased or decreased as required to
effectuate the proration of revenues and expenses in accordance with this
Agreement and with the principle that Seller shall be entitled to all revenues
and responsible for all expenses, costs and liabilities allocable to the period
prior
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to the Closing and Buyer shall be entitled to all revenues and responsible for
all expenses, costs and obligations allocable to the period on and after the
Closing.
3. Assets to be Purchased. The term "Assets," as used herein to mean
the assets to be purchased under this Agreement, shall include all the assets of
Seller relating to the Outdoor Advertising Business, including without
limitation all right, title, and interest in and to all of the following:
A. Any and all land, buildings, improvements, fixtures,
easements, and rights appurtenant thereto which are owned, leased or otherwise
used by Seller in the conduct of the Outdoor Advertising Business, including
without limitation any and all real property interests in the Billboards and
Seller's leasehold interests under the Land Leases described on Exhibit B
attached hereto;
B. All tangible personal property (such as machinery,
equipment, inventories of raw materials and supplies, manufactured and purchased
parts, goods in process and finished goods, furniture, automobiles, trucks,
tractors, trailers, and tools) including without limitation the Billboards
described on Exhibit A and other tangible personal property described on Exhibit
C attached hereto;
C. All licenses and permits necessary for the ownership and
operation of the Billboards and the Outdoor Advertising Business (the
"Permits"), including without limitation the Permits listed on Exhibit D
attached hereto;
D. All leases or licenses of Billboard space between Seller
and Billboard advertising customers (the "Sign Leases"), including without
limitation those Sign Leases described on Exhibit E attached hereto;
E. Service agreements, leases and other contracts relating to
the Outdoor Advertising Business (the "Service Agreements"), including without
limitation those Service Agreements described on Exhibit F attached hereto;
F. Intellectual property, goodwill associated therewith,
licenses and sublicenses granted and obtained with respect thereto and rights
thereunder, remedies against infringements thereof, and rights to protection of
interests therein under the laws of all jurisdictions;
G. Claims, deposits, repayments, refunds, causes of action,
choses in action, rights of recovery, rights of set-off, and rights of
recoupment;
H. Franchises, approvals, permits, licenses, orders,
registrations, certificates, variances, and similar rights obtained from
governments and governmental agencies;
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I. Books, records, ledgers, files, documents, correspondence,
lists, plats, architectural plans, drawings, specifications, creative materials,
advertising and promotional materials, studies, reports, and other printed or
written materials; and
J. All currently existing and hereafter arising proceeds of
all of the foregoing.
Finally, Seller's principal, Xxxxx Xxxxxxx and/or Xxxxxx Xxxxx, shall
provide his services to assist Buyer in the construction of the fourteen (14)
permitted, but unbuilt billboard locations along the Florida Turnpike and I-75
following Closing. Compensation for Xx. Xxxxxxx' and or Xx. Xxxxx service is
included as part of the Purchase Price set out in paragraph 2 above and he shall
receive no additional compensation aside from the reimbursement of approved
out-of-pocket expenses. Xx. Xxxxxxx and Xx. Xxxxx shall supervise each
billboards construction for a period of sixty (60) days following Closing or
sooner if Buyer and Seller mutually agree that his supervision is no longer
required. Buyer shall be responsible for all other expenses associated with the
construction of the these fourteen (14) locations.
4. Assumption of Liabilities and Obligations. As of the date of
Closing, Buyer shall assume and undertake to pay, discharge, and perform all
obligations and liabilities arising under the Land Leases, Sign Leases, Service
Contracts, or otherwise arising from the ownership or operation of the Assets
and the conduct of the Outdoor Advertising Business to the extent that such
obligations and liabilities relate to the time after the Closing. Buyer shall
not assume any other obligations or liabilities of Seller, including without
limitation: any obligations or liabilities under any agreement not included in
the agreements to be assigned hereunder; any obligations or liabilities under
the agreements to be assigned hereunder relating to a period prior to Closing;
any claims, litigation, or proceedings relating to the operation of the Assets
or the conduct of the Outdoor Advertising Business prior to Closing, whether
asserted or filed before or after Closing; any obligations or liabilities of
Seller under any management incentive, employee pension, retirement, or other
benefit plans; any obligations or liabilities of Seller under any collective
bargaining agreement; any obligation to any employee of Seller for severance
benefits, vacation time, or sick leave accrued prior to Closing; any credit
agreements, note purchase agreements, indentures, or other financing
arrangements; any agreements entered into other than in the ordinary course of
business; or any obligations or liabilities caused by, arising out of, or
resulting from any action or omission of Seller prior to Closing. All of such
excluded obligations and liabilities shall remain the obligations and
liabilities solely of Seller.
5. Representations, Covenants and Warranties of Buyer. As a material
inducement to Seller to enter into this Agreement, Buyer makes the following
representations, covenants and warranties.
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A. Buyer has all requisite power and authority to execute and
deliver this Agreement and the documents contemplated hereby and to perform and
comply with all of the terms, covenants, and conditions to be performed and
complied with by Buyer hereunder and thereunder.
B. The execution, delivery and performance of this Agreement
by Buyer have been duly authorized by all necessary actions on the part of
Buyer. This Agreement has been duly executed and delivered by Buyer and
constitutes the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms except as the enforceability of this
Agreement may be affected by bankruptcy, insolvency, or similar laws affecting
creditors' rights generally and by judicial discretion in the enforcement of
equitable remedies.
C. The execution, delivery and performance by Buyer of this
Agreement and the documents contemplated hereby (i) do not require the consent
of any third party; (ii) will not conflict with the Articles of Incorporation or
By-Laws of Buyer; (iii) will not conflict with, result in a breach of, or
constitute a default under, any law, judgment, order, injunction, regulation or
ruling of any Court or Governmental Instrumentality; or (iv) will not conflict
with, constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license or permit to which
Buyer is a party or by which Buyer may be bound, that may impair Buyer's ability
to acquire or operate the Assets.
D. No representation or warranty made by Buyer in this
Agreement or in any certificate or other document furnished by Buyer pursuant
hereto contains or will contain any untrue statement of a material fact or omits
or will omit to state any material fact that is required to make any statement
made herein or therein not misleading.
6. Representations, Covenants and Warranties of Seller. As a material
inducement to Buyer to enter into this Agreement, Seller makes the following
representations, covenants and warranties:
A. Seller is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Florida. Seller has all
requisite power and authority (i) to own, lease and use the Assets as now owned,
leased and used, (ii) to conduct the business and operations associated with the
Assets as now conducted and (iii) to execute and deliver this Agreement and the
documents contemplated hereby and to perform and comply with all of the terms,
covenants and conditions to be performed and complied with by Seller hereunder
and thereunder.
B. The execution, delivery and performance of this Agreement
by Seller have been duly authorized by all necessary actions on the part of
Seller. This Agreement has been duly executed and delivered by Seller and
constitutes the legal, valid and binding
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obligation of Seller, enforceable against it in accordance with its terms except
as the enforceability of this Agreement may be affected by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by judicial
discretion in the enforcement of equitable remedies.
C. The execution, delivery, and performance by Seller of this
Agreement and the documents contemplated hereby (i) do not require the consent
of any third party, or such consent has been obtained, (ii) will not conflict
with, result in a breach of, or constitute a default under, any law, judgement,
order, rules, regulation or ruling of any court of governmental instrumentality,
(iii) will not conflict with, constitute grounds for termination of, result in a
breach of, constitute a default under or accelerate or permit the acceleration
of any performance required by the terms of any agreement instrument license or
permit to which Seller is a party or by which Seller may be bound and (iv) will
not create any claim, liability, mortgage, lien, pledge condition charge or
encumbrance of any nature whatsoever upon any of the Assets.
D. Seller has good and marketable title to or, where
applicable, a valid and insurable leasehold interest in the Assets free and
clear of all liens and encumbrances. The Assets are all of the properties and
assets required to legally conduct the Outdoor Advertising Business as currently
conducted, and immediately after consummation of the transactions contemplated
herein, Buyer will be entitled to use the Assets free and clear of all liens and
encumbrances.
E. Neither Seller nor any shareholder, employee, or agent of
Seller has incurred any obligation for any finder's, broker's, or agent's fee in
connection with the transactions contemplated hereby.
F. The Permits listed on Exhibit D constitute all the
governmental authorizations required from any governmental or regulatory
authority for the lawful conduct of the Outdoor Advertising Business and
operation of the Assets in the manner and to the full extent they are now
conducted. None of these governmental or regulatory authorities has modified or
otherwise changed its permitting ordinances in any material respect since the
issuance of the Permits. None of the Permits is subject to any restriction or
condition that would limit Buyer's full operation of the Assets or the Outdoor
Advertising Business as now operated following Closing. The Permits are in full
force and effect and the current conduct of the Outdoor Advertising Business and
operation of the Assets is in full accord therewith. Seller has no reason to
believe that any of the Permits will not continue to remain in effect following
Closing.
G. The Billboards listed on Exhibit A and the tangible
personal property listed on Exhibit C constitute all items of tangible personal
property necessary to conduct Outdoor Advertising Business at each of the
Billboard locations as now conducted. Seller owns and has good title to each
Billboard and other item of tangible personal property and,
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except as disclosed on Exhibit G, none is subject to any security interest,
mortgage, pledge, conditional sales agreement or other lien or encumbrance,
except for liens for current taxes not yet due and payable.
H. The Land Leases, Sign Leases, and Service Contracts listed
on Exhibits B, E, and F, respectfully, constitute all the Land Leases, Sign
Leases, and Service Contracts associated with the operation of the Billboards
and the Outdoor Advertising Business. Seller has delivered to Buyer true and
complete copies of all such Land Leases, Sign Leases, and Services Contracts and
all of the Land Leases, Sign Leases and Service Contracts are in full force and
effect and are valid, binding and enforceable in accordance with their terms.
Seller has full legal power and authority to assign its rights under such Land
Leases, Sign Leases, and Service Contracts to Buyer in accordance with this
Agreement and such assignment will not affect the validity, enforceability or
continuation of any of the assigned Land Leases, Sign Leases, and Service
Contracts.
I. No consent, approval, permit or authorization of or
declaration to or filing with any governmental or regulatory authority or any
other third party is required (i) to consummate this Agreement and the
transactions contemplated hereby (ii) to permit Seller to assign or transfer the
Assets to Buyer or (iii) to enable Buyer to conduct the business and operations
associated with the Assets in essentially the same manner as such business and
operations are now conducted.
J. There is no claim, legal action, suit, arbitration,
governmental investigation or other legal, administrative or tax proceeding, nor
any order, decree or judgment in progress or pending, or to the knowledge of
Seller threatened, against Seller with respect to its ownership or operation of
the Assets nor does Seller know or have reason to be aware of any basis for the
same.
K. Seller has complied with all laws, rules, and regulations
of all federal, state and local governments concerning the environment, public
health and safety and no complaint, charge or notice has been filed or commenced
against Seller in connection with its ownership or operation of the Assets
alleging any failure to comply with any such law, rule or regulation.
L. The books of account of Seller have been kept accurately in
all material respects in the ordinary course of its business; the transactions
entered therein represent bona fide transactions; and the revenues, expenses,
assets, and liabilities of Seller have been properly recorded in such books.
M. All the Billboards are constructed within the boundaries of
the applicable Land Lease, and each Land Lease provides adequate access to and
from a public road.
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N. Seller is aware of no structural or latent defects in any
of the Assets.
O. No representation or warranty made by Seller in this
Agreement or in any certificate, document or other instrument furnished or to be
furnished by Seller pursuant hereto contains or will contain any untrue
statement of a material fact or omits or will omit to state any material fact
that is required to make any statement made herein or therein not misleading.
7. Due Diligence Period. Buyer shall have a period of up to thirty (30)
days after full execution of this Agreement (the "Due Diligence Period") to
inspect the Assets and the books and records of the Outdoor Advertising Business
and to conduct such other inspections or investigations to confirm the
feasibility and suitability of the Assets for Buyer's purposes. If Buyer is
dissatisfied, in its sole discretion, with the results of such inspections and
investigations for any reason, then Buyer shall be entitled to terminate this
Agreement prior to the expiration of the Due Diligence Period and receive a
return of any and all deposits paid hereunder. Seller shall permit Buyer and
Buyer's authorized representatives full access to, and make available for
inspection, all of the Assets and business premises of Seller and shall furnish
Buyer all documents, records, and information with respect to the affairs of
Seller as Buyer and its representatives may reasonably request, all for the
purpose of permitting Buyer to become familiar with the Assets, the Outdoor
Advertising Business, and liabilities of Seller. In connection therewith, Buyer,
its agents and representatives, shall have the right of access to the Assets for
purposes of conducting surveys, soil tests, market studies, engineering tests,
and such other tests, investigations, studies and inspection as Buyer deems
desirable, provided that all of the same shall be conducted at Buyer's expense.
8. Prorations; Closing Expenses. At the time of Closing, Seller shall
provide Buyer with a schedule of all rental payments and revenues received by
Seller for periods from and after the date of Closing. The aggregate amount of
all such prepaid revenues shall be deducted from the purchase price at Closing.
All normal and customarily proratable items, including without limitation, real
estate taxes and assessments, personal property taxes and assessments, utility
bills, alarm and security bills, and rents, shall be prorated as of the date of
Closing, Seller being charged and credited for all of the same up to such date
and Buyer being charged and credited for the same on and after such date. If the
actual amounts to be prorated are not known at the time of Closing, the
prorations shall be made on the basis of the best evidence then available, and
thereafter, when actual figures are received, a cash settlement will be made
between Seller and Buyer. All deposits held by Seller under Sign Leases shall be
credited in favor of Buyer against the purchase price.
9. Buyer's Conditions Precedent. Except as may be waived in writing by
Buyer, the obligations of Buyer hereunder are subject to the fulfillment at or
before the Closing of each of the following conditions:
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A. Each representation and warranty of Seller contained in
this Agreement shall be true and correct in all material respects as of the
Closing;
B. Seller shall have performed and complied with all covenants
or conditions required by this Agreement to be performed and complied with by
Seller at or before Closing;
C. No suit, action, order, or other proceeding by any court or
governmental body or agency shall have been threatened in writing, asserted,
instituted, or entered to restrain or prohibit carrying of the transactions
contemplated by this Agreement;
D. No material, adverse, undisclosed condition or material,
adverse change in the Outdoor Advertising Business or the Assets shall have
occurred;
E. Seller shall have received all consents and approvals, if
any, necessary to consummate the transactions contemplated hereby; and
F. Buyer shall have received all estoppel certificates,
consents, and non-disturbance and recognition agreements required to be
delivered hereunder.
10. Seller's Conditions Precedent. Except as may be waived in writing
by Seller, the obligations of Seller hereunder are subject to the fulfillment at
or before Closing of each of the following conditions:
A. Each representation and warranty of Buyer contained in this
Agreement shall be true and correct in all material respects as of Closing;
B. Buyer shall have performed and complied with all covenants
or conditions required by this Agreement to be performed and complied with by it
at or before Closing;
C. No order by any court or governmental body or agency shall
have been entered to restrain or prohibit the consummation of the transactions
contemplated herein.
11. Closing. The Closing hereunder shall occur on August 29, 1996, at
the Buyer's Orlando, Florida offices and the parties shall mutually agree upon
such date.
12. Documents for Closing. Upon the Closing hereof, Seller shall
deliver the following documents to Buyer:
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A. Duly executed Warranty Xxxx of Sale, Assignment of Land
Leases, Assignment of Sign Leases, Assignment of Permits and other transfer
documents which shall be sufficient to vest and fully warrant good and
marketable title to the Assets in the name of Buyer, free and clear of all
mortgages, liens, restrictions, encumbrances and obligations except for liens
for current taxes not yet due and payable;
B. All original documents of Land Leases, Sign Agreements,
Service Agreements, Permits and all records and correspondence with regard to
the Assets being sold hereunder;
C. Estoppel certificates of the lessors of all leasehold and
subleasehold interests included in the real property interests conveyed
hereunder (substantially in the form as set forth in Exhibit G attached hereto)
and any consents of third parties which enable Seller to transfer, assign and
convey the Assets to Buyer;
D. A certificate, dated as of the Closing Date, executed on by
Seller, certifying that these representations and warranties of Seller contained
in this Agreement are true and complete in all material respects as of the
Closing Date as though made on and as of that date and that Seller has in all
material respects performed and complied with all of its obligations, covenants
and agreement set forth in this Agreement to be performed and complied with on
or prior to the Closing Date; and
E. Any other documents reasonably necessary for the
consummation of the transactions contemplated hereby.
13. Further Assurances. At any time before or after Closing, Seller
agrees to execute, acknowledge and deliver all instruments reasonably requested
by Buyer in order to consummate the transactions contemplated by this Agreement
and to fully vest in Buyer the ownership of the Assets from and after the
Closing. Promptly upon receipt of any rental payments under the Sign Leases for
periods after the Closing, Seller shall pay over to Buyer all such payments.
14. Default. If Buyer shall breach any material representation,
warranty, or covenant contained herein, then the entire xxxxxxx money deposit
paid hereunder shall be paid to Seller and Seller may undertake any and all
legal and equitable actions, including, without limitation, a suit for specific
performance. If Seller shall breach any material representation, warranty, or
covenant contained herein, Buyer, in addition to obtaining a refund of its
xxxxxxx money deposit, may undertake any and all legal and equitable actions,
including without limitation, a suit for specific performance. Seller
acknowledges that a refusal by Seller to consummate the transactions
contemplated hereby will cause irrevocable harm to Buyer, for which there may be
no adequate remedy at law and for which the ascertainment of damages would be
difficult. Therefore, Buyer shall be entitled,
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in addition to, and without having to prove the inadequacy of, other remedies at
law, to specific performance of this Agreement, as well as injunctive relief.
15. Indemnification Provisions.
A. Indemnification by Seller. After the Closing, and
regardless of any investigation made at any time by or on behalf of Buyer or any
information Buyer may have, Seller hereby agrees to indemnify and hold Buyer and
its officers, directors, employees, and representatives harmless against and
with respect to, and shall reimburse Buyer and its officers, directors,
employees, and representatives for:
(i) Any and all losses, liabilities, or damages
resulting from the operation or ownership of the Outdoor Advertising Business
prior to the Closing, including without limitation any environmental liabilities
and liabilities arising under the Land Leases, Sign Leases, Service Agreements,
or any other source to the extent such liabilities relate to events occurring
prior to the Closing Date, or resulting from any other obligations of Seller
that are not assumed by Buyer pursuant to this Agreement, including without
limitation any liabilities arising at any time under any contract that is not
assumed hereunder.
(ii) Any loss, liability, obligation, or cost
resulting from any agreement with any finder, broker, advisor, or similar person
retained by or on behalf of Seller relating to the transactions contemplated by
this Agreement.
(iii) Any and all out-of-pocket costs and expenses,
including reasonable legal fees and expenses, of any incident to the foregoing
or incurred in investigating or attempting to avoid the same or to oppose the
imposition thereof, or in enforcing this indemnity.
B. Indemnification by Buyer. After the Closing, and regardless
of any investigation made at any time by or on behalf of Seller or any
information Seller may have, Buyer hereby agrees to indemnify and hold Seller
and Seller's officers, directors, employees, and representatives harmless
against and with respect to, and shall reimburse Seller and each Seller's
officers, directors, employees, and representatives for:
(i) Any and all obligations of Seller assumed by
Buyer pursuant to this Agreement.
(ii) Any and all losses, liabilities, or damages
resulting from the operation or ownership of the Outdoor Advertising Business
after the Closing.
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(iii) Any loss, liability, obligation, or cost
resulting from any agreement with any finder, broker, advisor, or similar person
retained by or on behalf of Buyer relating to the transactions contemplated by
this Agreement.
(iv) Any and all out-of-pocket costs and expenses,
including reasonable legal fees and expenses, incident to any action, suit,
proceeding, claim, demand, assessment, or judgment incident to the foregoing or
incurred in investigating or attempting to avoid the same or to oppose the
imposition thereof, or in enforcing this indemnity.
C. Procedure for Indemnification. The procedure for
indemnification shall be as follows:
(i) The party claiming indemnification (the
"Claimant") shall promptly give written notice to the party from which
indemnification is claimed (the "Indemnifying Party") of any claim, whether
between the parties or brought by a third party, specifying in reasonable detail
the factual basis for the claim.
(ii) With respect to claims solely between the
parties, following receipt of notice from the Claimant of a claim, the
Indemnifying Party shall have thirty days 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 and its authorized representatives 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 the thirty-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 the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy at law or equity.
(iii) With respect to any claim by a third party as
to which the Claimant is entitled to indemnification under this Agreement, if
the Indemnifying Party notifies the Claimant in writing within ten days of its
receipt of notice from the Claimant of the third-party claim that the
Indemnifying Party acknowledges its potential liability to the Claimant under
this Agreement, 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, subject to
reimbursement for actual out-of-pocket expenses incurred by the Claimant as the
result of a request by 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 at its own expense.
If the Indemnifying Party fails timely to notify the Claimant in writing that
the Indemnifying Party acknowledges its potential liability to the Claimant
under this Agreement or if the Indemnifying Party does not elect to assume
control or otherwise participate in the
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defense of any third-party claim, the Indemnifying Party shall be bound by the
results obtained by the Claimant with respect to such claim.
(iv) 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.
(v) For the purpose of the procedures set forth in
this Section, any indemnification claim by any officer, director, employee, or
representative of Buyer shall be made by and through Buyer, and any
indemnification claim by any officer, director, employee, or representative of
any Seller shall be made by and through such Seller.
16. Survival. All representations, warranties and indemnifications
contained in this Agreement shall be deemed continuing representations,
warranties and indemnifications and shall survive the Closing.
17. Attorneys Fees. In the event of a default or breach hereunder by
either party which results in a lawsuit or other proceeding for any remedy
available under this Agreement, the prevailing party shall be entitled to
reimbursement from the other party of its reasonable legal fees and expenses,
including on appeals and bankruptcy proceedings.
18. Physical Condition. Except as expressly provided in this Agreement
to the contrary, Buyer and Seller agree that the Assets are being sold "as is"
as to their physical condition existing at the time of execution of this
Agreement.
19. Controlling Law. Any dispute which may arise concerning this
Agreement shall be resolved in accordance with the laws of the State of Florida
and parties agree to venue in Pinellas County, Florida.
20. Risk of Loss; Maintenance of Assets. The risk of any loss, damage,
impairment, confiscation or condemnation of any of the Assets from any cause
whatsoever shall be borne by Seller at all times prior to Closing. Seller shall
maintain all of the Assets in their condition as of the date of this Agreement
(ordinary wear and tear excepted), and use, operate and maintain all of the
Assets in a reasonable manner. Seller shall maintain inventories of parts and
supplies at levels consistent with past practices. If any insured or indemnified
loss, damage, impairment, confiscation, or condemnation of or to any of the
Assets occurs, Seller shall repair, replace, or restore such Assets to their
prior condition as soon thereafter as possible (and at Buyer's option, prior to
Closing), and Seller shall use the proceeds of any insurance or other recovery
solely to repair, replace, or restore such Assets. Seller shall maintain the
existing levels of insurance on the Assets. In the event of any loss, damage,
impairment, confiscation, or condemnation of any of the Assets, if restoration
or replacement has not occurred prior to Closing, Buyer shall be entitled to
elect to delay the Closing until such restoration or replacement is completed or
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close the transaction and receive from Seller a transfer or assignment of all
insurance proceeds or other compensation applicable thereto.
21. Notices. All notices, demands, and requests required or permitted
to be given under this Agreement shall be in writing and shall be either (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid with return receipt requested, (c) delivered by overnight express
delivery service or same day local courier service, or (d) delivered by telecopy
or facsimile transmission, to the address set forth below, or to such other
address as may be designated by the parties from time to time in accordance with
this section.
If to Seller: Boardworks Outdoor Advertising Company, Inc.
X.X. Xxx 00
Xxx Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
with a copy to: Xxxxxxxx X. Xxxxxxxx, Esq.
Xxxxxx, White et al.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
If to Buyer: Xxxxxx Outdoor, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
Notice delivered personally, by overnight express delivery service or
by local courier service shall be deemed given as of actual receipt. Mailed
notices shall be deemed given three business days after mailing. Notices
delivered by telecopy or facsimile transmission shall be deemed given upon
confirmation of the transmission.
22. Entire Agreement. This Agreement supersedes all prior agreements
and understandings relating to the subject matter hereof and cannot be amended,
supplemented or changed except by an Agreement in writing signed by the party
against which enforcement of any such amendment, supplement, or modification is
sought.
14
14
23. Binding Effect. This Agreement and the rights, interests and
obligations hereunder shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, personal representatives,
estates, devisees, successors, and assigns.
24. Severability. If any portion of this Agreement is invalid, illegal
or unenforceable, the balance of this Agreement shall remain in full force and
effect and this Agreement shall be construed in all respects as if such invalid,
illegal or unenforceable provision were amended.
25. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one instrument.
15
15
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
the day and year first above written.
In the Presence of:
"Seller"
BOARDWORKS OUTDOOR
ADVERTISING COMPANY, INC.
--------------------------------- ----------------------------------
By:
-------------------------------
Its: PRESIDENT
------------------------------
---------------------------------
As to "Seller"
"Buyer"
XXXXXX OUTDOOR, INC.
--------------------------------- ----------------------------------
By:
-------------------------------
Its:
------------------------------
---------------------------------
As to "Buyer"
16
16
STATE OF FLORIDA ]
]
COUNTY OF _________________ ]
I, _______________________________, a Notary Public in and for the
State of Florida, do hereby certify that ___________________________ the duly
authorized ____________________ of Boardworks Outdoor Advertising Company, Inc.,
personally appeared before me in said jurisdiction and acknowledged executing
the foregoing Purchase Agreement on behalf of the corporation. He is personally
known to me or has
produced _____________________________ as identification.
Given under my signature and seal this _____ day of August, 1996.
____________________________________
[SEAL] Notary Public
STATE OF FLORIDA ]
]
COUNTY OF PALM BEACH ]
I, Xxxx X. Xxxxxxx, a Notary Public in and for the State of Florida, do
hereby certify that _______________________________, the duly authorized
__________________ of Xxxxxx Outdoor, Inc., personally appeared before me in
said jurisdiction and acknowledged the foregoing Purchase Agreement on behalf of
the corporation. He is personally known to me.
Given under my signature and seal this _____ day of August, 1996.
____________________________________
[SEAL] Notary Public
17
17
EXHIBIT A
---------
The parties acknowledge that the following is a list of the Billboards to be
transferred from Seller to Buyer as part of this Purchase Agreement. Billboards
as referenced below shall mean a single advertising structure each having two or
four faces with the indicated dimensions including all related equipment located
above and below ground at each site:
[ADD DESCRIPTION OF BILLBOARDS]
18
18
EXHIBIT B
[ADD LISTING OF LAND LEASES THEIR LOCATION AND DURATION]
19
19
EXHIBIT C
[ADD DESCRIPTION OF TANGIBLE PERSONAL
PROPERTY OTHER THAN BILLBOARDS]
20
20
EXHIBIT D
[ADD LISTING AND LOCATION OF PERMITS]
21
21
EXHIBIT E
[ADD LISTING OF SIGN LEASES]
22
22
EXHIBIT F
Manufacturing/Warehouse/Office Lease dated November 4, 1994 between First Pasco
Service Corp. and Boardworks Outdoor.
23
23
EXHIBIT G
PERSONAL PROPERTY
SECURITY INTERESTS
24
24
EXHIBIT H
LESSOR'S ESTOPPEL CERTIFICATE
TO: Xxxxxx Outdoor, Inc.
_________________________________________ ("Lessor"), certifies to
Xxxxxx Outdoor, Inc. as follows:
I. Lessor's correct legal name is __________________ __________________,
and Lessor is a _______________________ organized and existing under the laws of
the State of __________.
1. Lessor is the owner of the property described on attached Exhibit A
(the "Demised "Premises"). Lessor leases the Demised Premises to
_____________________________________ __________________________ ("Lessee"),
pursuant to a ____________________________________ __________________ dated
_____________________________ (the "Lease"). True copies of the Lease and any
amendments are attached to this certificate as Exhibit B.
2. The Lease (a) is in full force and effect according to its terms;
(b) has not been otherwise amended, assigned or modified; (c) has not been
terminated or superseded, nor has Lessor's performance of Lessor's obligations
under the Lease been waived in any material respect; and (d) constitutes the
entire agreement between Lessor and Lessee with respect to the Demised Premises.
3. Lessor has not received notice of a prior transfer, assignment,
hypothecation or pledge by Lessee of any of Lessee's interest in the Lease.
4. Lessor is not in default with respect to any obligations to the
other under the Lease.
5. To the knowledge of Lessor, Lessee is not in default with respect to
any obligations under the Lease and no condition exists that, with the passage
of time or giving of notice, would constitute a default.
6. No actions, voluntary or otherwise, involving Lessor are pending in
connection with any bankruptcy, reorganization, or insolvency proceedings under
federal or state laws.
7. Lessor acknowledges that you are purchasing an assignment of
Lessee's leasehold interest in reliance upon this certificate, and hereby
consents to such assignment.
IN WITNESS WHEREOF, Lessor has executed this certificate, this ______
day of ____________, 19____.
_______________________________________
"LESSOR"
25
CLOSING STATEMENT
This Closing Statement is delivered in connection with the consummation
of the transaction contemplated by the Purchase Agreement dated as of August
29, 1996 (the "Purchase Agreement"), by and between Xxxxxx Outdoor, Inc., a
Florida corporation ("Buyer") and Boardworks Outdoor Advertising Company, Inc.,
a Florida corporation ("Seller").
The undersigned acknowledge and agree that the Purchase Price payable at
the Closing (as those terms are defined in the Purchase Agreement) shall be as
set forth in Exhibit A hereto, subject to final adjustment and payment as
provided in Section 8 of the Purchase Agreement.
This Closing Statement may be signed in counterparts with the same
effect as if the signature on each counterpart were upon the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Closing Statement
as of August 29, 1996.
XXXXXX OUTDOOR, INC.
By: /s/
---------------------------------
Its: Secretary
BOARDWORKS OUTDOOR ADVERTISING
COMPANY, INC.
By: /s/
--------------------------------
Its: President
--------------------------------
26
EXHIBIT A
CLOSING STATEMENT
--------------
A. Calculation of Purchase Price:
Boardworks Outdoor Advertising Company, Inc.
Prorations $ 759.32
Cash Payment 1,300,000.00
-------------
Total $1,300,759.32
B. Disbursements To or For Seller:
1. Wire transfer from Buyer to: $1,200,759.32
Wauchula State Bank
ABA# 0631 0492 7
"Online with Federal Reserve"
To Credit Boardworks Outdoor Advertising Company, Inc.
Account # 0000000
2. Wire transfer from First Union to Wauchula $ 100,000.00
-------------
-------------
GRAND TOTAL $1,300,759.32
27
BOARDWORKS OUTDOOR ADVERTISING COMPANY, INC.
TANGIBLE TAXES PRORATION WORKSHEET
TAXES THIS PRORATION
YEAR IF NO DATE
BUDGET AUGUST 29,1996 DUE TO
SIGN # FOLIO # CHANGE 124/365 SELLER
-----------------------------------------------------------------------------------------------------------
PASCO COUNTY
BPA051-BPA052 B 00831 101 416.09 0.339726 141.36
BPA053-BPA054 B 00831 102 416.09 0.339726 141.36
BPA055-BPA058 B 00831 103 312.66 0.339726 106.22
BPA059-BPA062 B 00831 104 293.71 0.339726 99.78
BPA063-BPA066 B 00831 105 304.75 0.339726 103.53
BPAOOI-BPA004 B 00831 106
BPA005-BPA008 B 00831 106
BPA009-BPA012 B 00831 0X0
XXX000-XXX000 B 00831 106
BPA015-BPA018 B 00831 106
BPA031-BPA032 B 00831 106
BPA037-BPA038 B 00831 106
BPA039-BPA040 B 00831 106
BPA041-BPA042 B 00831 106
BPA043-BPA046 B 00831 106
BPA047 B 00831 106
BPA048-BPA051 B 00831 106
BPA052 B 00831 106
BPA053-BPA054 B 00831 106 304.75 0.339776 03.53
BPA075-BPA076 B 00831 107 275.17 0.339726 93.48
HERNANDO COUNTY
BHE019-BHE020 P-009920-000
BHE021-BHE027 P-009920-000
BHE023-BHE024 P-009920-000
BHE025-BHE076 P-009920-000
BHE027-BHE079 P-009920-000
BHE029-BHE030 P-009920-000
BHU033-BHE034 P-009920-000
BHE035-BHE036 P-009920-000
BHE057-BHE060 P-009920-000 508.57 0.339726 172.77
POLK COUNTY
BPO055-BPO056 11 303750 159.45 0.339726 54.17
---------
$1,016.20
=========
28
Summary
Type Credit to Buyer Due Seller
---- --------------- ----------
Rent Expense/Monthly $ 0.00
Rent Expense/Other $ 758.06
Tangible Taxes
Permits $ 707.46
Receivables
Ad Revenue/Monthly $1,550.00
Electric Deposits $1,860.00
--------- ---------
Totals $1,550.00 $3,325.52
Tangible Tax $1,016.20
Net Due to Seller $759.32
Page 1
29
Rent Expenses_Monthly
Landowmer GR_mo Pro-Rations/days August Amt. paid Due to Seller
--------- ----- ---------------- ---------------- -------------
Xxxx $25.00 0 $25.00 $0.00
Xxxx $25.00 0 $25.00 $0.00
Xxxx $25.00 0 $25.00 $0.00
Xxxx $25.00 0 $25.00 $0.00
Xxxx $25.00 0 $25.00 $0.00
Xxxx $25.00 0 $25.00 $0.00
Xxxx $25.00 0 $25.00 $0.00
Xxxx $25.00 0 $25.00 $0.00
H&S $50.00 0 $50.00 $0.00
H&S $50.00 0 $50.00 $0.00
H&S $50.00 0 $50.00 $0.00
H&S $50.00 0 $50.00 $0.00
Scotty's $53.00 0 $53.00 $0.00
Scotty's $53.00 0 $53.00 $0.00
Stor-ette $25.00 0 $25.00 $0.00
Stor-ette $25.00 0 $25.00 $0.00
Stor-ette $25.00 0 $25.00 $0.00
Stor-ette $25.00 0 $25.00 $0.00
Xxxxxx $75.00 0 $75.00 $0.00
Xxxxxx $75.00 0 $75.00 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
One Pasco $53.00 0 $53.00 $0.00
One Pasco $53.00 0 $53.00 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Jan Jan $53.00 0 $53.00 $0.00
Jan Jan $53.00 0 $53.00 $0.00
Tri County $150.00 0 $150.00 $0.00
Tri County $150.00 0 $150.00 $0.00
Xxxxx $75.00 0 $75.00 $0.00
Xxxxx $75.00 0 $75.00 $0.00
Xxxxxxxxxxx $25.00 0 $25.00 $0.00
Xxxxxxxxxxx $25.00 0 $25.00 $0.00
30
Rent Expenses_Monthly
Xxxxxxxxxxx $25.00 0 $25.00 $0.00
Xxxxxxxxxxx $25.00 0 $25.00 $0.00
Xxxxxx $100.00 0 $100.00 $0.00
Xxxxxx $100.00 0 $100.00 $0.00
Wendy's $27.50 0 $27.50 $0.00
Wendy's $27.50 0 $27.50 $0.00
Wendy's $27.50 0 $27.50 $0.00
Wendy's $27.50 0 $27.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $83.50 0 $83.50 $0.00
Xxxxxx $50.00 0 $50.00 $0.00
Xxxxxx $50.00 0 $50.00 $0.00
$3,097.00 $3.097.00 $0.00
Page 2
31
Rent Expenses_Other
Landowmer GR_mo Pro-Rations/days Paid up to 12/1 Due to Seller
--------- ----- ---------------- --------------- -------------
Dame $125.00 91 $375.00 $379.03
Dame $125.00 91 $375.00 $379.03
------- ------- -------
$250.00 $750.00 $758.06
Page 1
32
Permits
Face ID DOT # Annual Fees Proration Due Seller
------- ----- ----------- --------- ----------
BOA001 BJ295-35 $35 137 $13.10
BOA002 BJ296-35 $35 137 $13.10
BOA003 BJ295-35 $35 137 $13.10
BOA004 BJ296-35 $35 137 $13.10
BOA005 BJ297-35 $35 137 $13.10
BOA006 BJ298-35 $35 137 $13.10
BOA007 BJ297-35 $35 137 $13.10
BOA008 BJ298-35 $35 137 $13.10
BOA009 BK129-35 $35 137 $13.10
BOA010 BK130-35 $35 137 $13.10
BOA011 BK129-35 $35 137 $13.10
BOA012 BK130-35 $35 137 $13.10
BOA013 BJ370-35 $35 137 $13.10
BOA014 BJ371-35 $35 137 $13.10
BOA015 BK523-35 $35 137 $13.10
BOA016 BK522-35 $35 137 $13.10
BOA017 BK523-35 $35 137 $13.10
BOA018 BK522-35 $35 137 $13.10
BOA019 BK435-35 $35 137 $13.10
BOA020 BK436-35 $35 137 $13.10
BOA021 BK904-35 $35 137 $13.10
BOA022 BK905-35 $35 137 $13.10
BOA023 BK910-35 $35 137 $13.10
BOA024 BK911-35 $35 137 $13.10
BOA025 BK912-35 $35 137 $13.10
BOA026 BK913-35 $35 137 $13.10
BOA027 BK902-35 $35 137 $13.10
BOA028 BK903-35 $35 137 $13.10
BOA029 BK629-35 $35 137 $13.10
BOA030 BK630-35 $35 137 $13.10
BOA031 BL311-35 $35 137 $13.10
BOA032 BL310-35 $35 137 $13.10
BOA033 BJ908-35 $35 137 $13.10
BOA034 BK909-35 $35 137 $13.10
BOA035 BK730-35 $35 137 $13.10
BOA036 BL731-35 $35 137 $13.10
BOA037 BL474-35 $35 137 $13.10
BOA038 BJ473-35 $35 137 $13.10
BOA039 BJ082-35 $35 137 $13.10
BOA040 BJ083-35 $35 137 $13.10
BOA041 BM832-35 $35 137 $13.10
33
Permits
BOA042 BM833-35 $35 137 $13.10
BOA043 BJ085-35 $35 137 $13.10
BOA044 BJ084-35 $35 137 $13.10
BOA045 BJ085-35 $35 137 $13.10
BOA046 BJ084-35 $35 137 $13.10
BOA047 BK744-35 $35 137 $13.10
BOA048 BK745-35 $35 137 $13.10
BOA049 BJ195-35 $35 137 $13.10
BOA050 BJ194-35 $35 137 $13.10
BOA051 BJ195-35 $35 137 $13.10
BOA052 BJ194-35 $35 137 $13.10
BOA053 BM349-35 $35 137 $13.10
BOA054 BM350-35 $35 137 $0.00
BOA055 137 $0.00
BOA056 137 $13.10
------ -------
$1,890 $707.46
34
Ad Rev-Monthly
Face ID Advertiser Net Income Proration Credit Buyer
------- ---------- ---------- --------- ------------
XXX000 Xxxxxxxx Regional $275 0 $0.00
BOA002 Xxxxxxxx Insurance $275 0 $0.00
BOA003 Dade City Hospital $275 0 $0.00
BOA004 Ancient Oaks $300 0 $0.00
BOA005 Beef X'Xxxxx $275 0 $0.00
BOA006 Columbia Regional $275 0 $0.00
BOA007 Avail $0 0 $0.00
BOA008 Avail $0 0 $0.00
BOA009 East Pasco Interiors $250 0 $0.00
BOA010 Avail $0 0 $0.00
BOA011 Zephyrhills Dental $300 0 $0.00
BOA012 Zephyrhills Dental $200 0 $0.00
BOA013 Dade City Hospital $400 0 $0.00
BOA014 Avail $0 0 $0.00
BOA015 Avail $0 0 $0.00
BOA016 Avail $0 0 $0.00
BOA017 Avail $0 0 $0.00
BOA018 Dade City Hospital $275 0 $0.00
BOA019 Century 21-Corp $350 0 $0.00
BOA020 Xxxxxx Xxxx Cent 21 $250 0 $0.00
BOA021 Marathon $800 0 $800.00
BOA022 Racetrac $650 0 $0.00
BOA023 Big Top Flea $650 0 $0.00
BOA024 Xxxx Lakes $600 0 $0.00
BOA025 Florida Aquarium $765 n/a 0 $0.00
BOA026 Columbia Regional $630 0 $0.00
BOA027 Comfort Inn $750 30 $750.00
BOA028 Xxxxxxxxxxx $800 0 $0.00
BOA029 Columbia Regional $630 0 $0.00
BOA030 Sugar Mill $700 0 $0.00
BOA031 Texaco/Blimpie's $400 0 $0.00
BOA032 Columbia Regional $630 0 $0.00
BOA033 Avail $0 0 $0.00
BOA034 Xxxx Lakes $600 0 $0.00
BOA035 Xxx Xxxxxxx Ford $600 0 $0.00
BOA036 Xxx Xxxxxxx Ford $600 0 $0.00
BOA037 Avail $0 0 $0.00
BOA038 Avail $0 0 $0.00
BOA039 Lone Star $450 0 $0.00
BOA040 Krystals $500 0 $0.00
BOA041 Pit Boss BBQ $550 0 $0.00
BOA042 Xxxxxxxxxxx $630 0 $0.00
35
Ad Rev-Monthly
BOA043 Avail $0 0 $0.0
BOA044 Our Father's Business $300 0 $0.00
BOA045 Xxxxxx $0 0 $0.00
BOA046 Avail $0 0 $0.00
BOA047 Avail $0 0 $0.00
BOA048 Avail $0 0 $0.00
BOA049 Xxxxxxx Pools $250 0 $0.00
BOA050 Xxxxxxx Pools $250 0 $0.00
BOA051 LOL Transmission $300 0 $0.00
BOA052 Columbia Regional $275 0 $0.00
BOA053 Avail $0 0 $0.00
BOA054 Avail $0 0 $0.00
BOA055 Avail $0 0 $0.00
BOA056 Avail $0 0 $0.00
------- ---------
$17,010 $1,550.00
36
Deposits
Withlacoochee Electric
----------------------
BOA021 $97.50
BOA022 $97.50
BOA023 $97.50
BOA025 $97.50
BOA026 $97.50
BOA027 $97.50
BOA028 $97.50
BOA029 $97.50
BOA030 $97.50
BOA031 $97,50
BOA032 $97.50
BOA033 $97.50
BOA034 $97.50
BOA035 $97.50
BOA036 $97.50
Florida Power
BOA039 $75.00
BOA040 $75.00
BOA041 $75.00
BOA042 $75.00
---------
Total Deposits $1,860.00
Page 1
37
ESCROW AGREEMENT
THIS IS AN AGREEMENT made and entered into this 15th day of August, 1996, by
and among: Xxxxxx Outdoor, Inc., a Florida corporation (hereinafter "Buyer"),
Boardworks Outdoor Advertising Company, Inc., a Florida corporation
(hereinafter "Seller"), and First Union National Bank of Florida (hereinafter
"Escrow Agent").
WHEREAS, Buyer and Seller have entered into a Purchase Agreement of even
date herewith which provides for the assignment of the Assets (as therein
defined) used in the operation of Seller's commercial billboard outdoor
advertising business, all on the terms and conditions set forth in the Purchase
Agreement; and
WHEREAS, the Purchase Agreement provides that Buyer shall deposit in escrow
with the Escrow Agent the sum of One Hundred Thousand Dollars ($100,000) to
be deposited contemporaneously herewith (the "Escrow Deposit") upon the
execution of the Purchase Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Appointment of Escrow Agent. Buyer and Seller each appoint
First Union National Bank of Florida as Escrow Agent to receive, hold,
administer and deliver the Escrow Deposit and all interest earned thereon
(collectively, the "Escrow Fund") in accordance with this Agreement and the
Escrow Agent accepts such appointment, all subject to and upon the terms and
conditions set forth in this Agreement.
The Escrow Agent shall invest and reinvest the Escrow Fund as directed
by Buyer. The Escrow Agent shall invest the Escrow Fund and the interest
thereon only in U.S. government obligations maturing not more than 90 days from
the date of purchase or in a money market account investing solely in U.S.
government obligations.
2. General Intention. Buyer herewith deposits the Escrow Fund
with the Escrow Agent and the Escrow Agent acknowledges such deposit. The
Escrow Agent shall dispose of the Escrow Fund in accordance with the express
provisions of this Agreement and, except upon the terms and conditions of
Section 3 of this Agreement, shall not make, be required to make or be liable
in any manner for its failure to make, any determination under the Purchase
Agreement or any other agreement, including without limitation any
determination of whether either Buyer or Seller has complied with the terms of
the Purchase Agreement or is entitled to delivery of the Escrow Fund or to any
other right or remedy thereunder.
3. Release of Escrow Fund. The Escrow Agent shall hold the Escrow
Fund as provided in this Section 3:
3.1 Seller's Demand. If the Escrow Agent receives a written
notice signed by Seller stating that Seller is entitled to any portion of the
Escrow Fund and certifying that
1
38
a copy of the notice has been delivered to Buyer in a manner specified in
Section 6, the Escrow Agent shall deliver a copy thereof to Buyer in a manner
specified in Section 6 and, unless the Escrow Agent receives a written
objection from Buyer within ten business days after the date of delivery of the
notice to Buyer by the Escrow Agent as provided in Section 6, the Escrow Agent
shall deliver to Seller the portion of the Escrow Fund claimed by Seller. If
the Escrow Agent receives a written objection from Buyer, the Escrow Agent
shall continue to hold the Escrow Fund until it has received written
instructions signed by Seller and Buyer or a final non-appealable order of a
court of competent jurisdiction, directing delivery of the Escrow Fund, in
which case the Escrow Agent shall deliver the Escrow Fund in accordance with
the instructions or order.
3.2 Buyers Demand. If the Escrow Agent receives a written notice
signed by Buyer stating that Buyer is entitled to any portion of the Escrow
Fund and certifying that a copy of the notice has been delivered to Seller in a
manner specified in Section 6, the Escrow Agent shall deliver a copy thereof to
Seller in a manner specified in Section 6 and, unless the Escrow Agent receives
a written objection from Seller within ten business days after the date of
delivery of the notice to Seller as provided in Section 6, the Escrow Agent
shall deliver to Buyer the portion of the Escrow Fund claimed by Buyer. If the
Escrow Agent receives a written objection from Seller, the Escrow Agent shall
continue to hold the Escrow Fund until it has received written instructions
signed by Seller and Buyer or a final non-appealable order of a court of
competent jurisdiction, directing delivery of the Escrow Fund, in which case
the Escrow Agent shall deliver the Escrow Fund in accordance with the
instructions or order.
3.3 Court Order or Joint Instructions. Notwithstanding anything
to the contrary in this Agreement:
(a) The Escrow Agent may deposit the Escrow Fund with the
Clerk of any Court of competent jurisdiction upon commencement of an action in
the nature of interpleader or in the course of any Court proceedings. If at
any time the Escrow Agent receives a final non-appealable order of a Court of
competent jurisdiction directing delivery of the Escrow Fund, the Escrow Agent
shall comply with the order or instructions.
(b) The Escrow Agent shall comply with written
instructions signed by Seller and Buyer directing the delivery of the Escrow
Fund. In this situation, the Escrow Agent's actions shall not be governed by
any notice provisions or other objection period mechanisms noted above.
(c) Upon any delivery or deposit of the entire Escrow
Fund as provided in this Section 3, the Escrow Agent shall and will thereupon
be released and discharged from any and all further obligations arising in
connection with this Agreement without further documents or action by Buyer or
Seller.
2
39
3.4 Partial Release of Escrow Fund. If the Escrow Agent disburses
less than all of the Escrow Fund pursuant to any demand, Court Order, or joint
instructions in accordance with this Agreement, that portion of the Escrow Fund
not disbursed shall continue to be held in escrow by the Escrow Agent subject
to the terms of this Agreement.
4. Escrow Agent. The Escrow Agent shall not be liable under this
Agreement except for its own gross negligence or willful misconduct. Except
with respect to misconduct that are successfully asserted against the Escrow
Agent, Buyer and Seller jointly and severally shall indemnify and hold harmless
the Escrow Agent (and any successor Escrow Agent) from and against any and all
losses, liabilities, claims, actions, damages and expenses, including
reasonable attorneys' fees and disbursement, arising out of or in connection
with this Agreement.
This Agreement expressly sets forth all of the duties of the Escrow
Agent with respect to any and all matters pertinent to this Agreement. In
performing its duties hereunder, the Escrow Agent shall be entitled to rely
upon any order, judgment, certification, demand, notice instrument or other
writing delivered to it under this Agreement without being required to
determine the authenticity or the correctness of any fact stated therein or the
propriety or validity of the service thereof. The Escrow Agent may act in
reliance upon any instrument or signature reasonably believed by it to be
genuine and may assume that any person signing such instrument or purporting to
give any notice hereunder has been duly authorized to do so.
The Escrow Agent may act in good faith pursuant to the advice of counsel
with respect to any matter relating to this Agreement, including without
limitation, any determination that a Court order is final and non-appealable.
The Escrow Agent may only resign and be discharged from its duties or
obligations hereunder if: (i) it has given written notice to the parties hereto
of such resignation, specifying a date when such resignation shall take effect,
and (ii) a replacement Escrow Agent has been selected and accepted by the
parties. Should the parties not agree upon a replacement Escrow Agent, both
parties agree to apply to a Court of competent jurisdiction for such a
selection.
5. Termination. This Agreement shall be terminated (a) upon the
disbursement or release in accordance with this Agreement of the entire Escrow
Fund, including the deposit of the Escrow Fund with the Clerk of any Court of
competent jurisdiction in accordance with Section 3 or (b) by written consent
signed by all parties. This Agreement shall not otherwise be terminated.
6. Notices. All notices, requests, demands or other
communications herein required to permitted to be given shall be in writing and
may be personally served, telecopied, telexed or sent by United States mail.
It shall be deemed to have been
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given, when delivered in person, upon receipt of telecopy of telex or seven
business days after postage prepaid and properly addressed as follows:
To Seller: Boardworks Outdoor Advertising Company, Inc.
Xxxx Xxxxxx Xxx #00
Xxx Xxxxxxx, XX 00000
Fax: [352] 000-0000
Phone: [352] 000-0000
To Buyer: Xxxxxx Outdoor, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax No.: [407] 000-0000
Phone: [407] 000-0000
To Escrow Agent: First Union National Bank of Florida
Corporate Trust Department
000 Xxxxx Xxxxxx, 0xx Xxxxx (FLO122)
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx, Asst. V.P.
Fax.: [904] 000-0000
Phone: [904] 000-0000
7. Escrow Fees. Buyer and Seller shall share equally and pay any
fees due to the Escrow Agent for the services to be rendered by the Escrow
Agent under this Agreement. Buyer and Seller shall share equally and pay for
or reimburse the Escrow Agent upon request for all reasonable expenses,
including reasonable attorneys' fees, incurred by it in the performance of its
duties under this Agreement.
8. Benefit and Assignment. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Neither party hereto may voluntarily or involuntarily
assign its interests under this Agreement without the prior written consent of
the other parties hereto.
9. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Florida.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument,
11. Entire Agreement. This Agreement contains all the terms
agreed upon by the parties with respect to the subject matter hereof.
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12. Amendments. Except as provided in Section 5, this Agreement
may only be modified or terminated by a writing signed by all the parties
hereto, and no waiver hereunder shall be effective unless embodied in a writing
signed by the party to be charged.
13. Tax Reporting. For tax reporting purposes, all interest
earned on the Escrow Fund shall be deemed to be for the account of Buyer.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
Xxxxxx Outdoor, Inc. Boardworks Outdoor Advertising Co., Inc.
By: /s/ By: /s/
--------------------- --------------------
Its: Secretary Its: President
-------------------- ------------------
First Union National Bank of Florida
By:
----------------------
Its:
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