Document/Exhibit Description Pages Size
1: 10-Q Paxson Communications, Inc. Form 10-Q 21 142K
13: EX-10.100 Asset Purchase Agreement 40 175K
14: EX-10.101 Asset Purchase Agreement 41 177K
15: EX-10.102 Asset Purchase Agreement 45 190K
16: EX-10.103 Construction Agreement 9 37K
17: EX-10.104 Loan Agreement 29 120K
18: EX-10.105 Asset Purchase Agreement 44 184K
19: EX-10.106 Asset Purchase Agreement 42 176K
20: EX-10.107 Agreement and Plan of Merger 34 110K
21: EX-10.107.01 First Amendment to Agreement and Plan of Merger 3 17K
22: EX-10.108 Asset Purchase Agreement 41 174K
23: EX-10.109 Option Agreement 9 35K
24: EX-10.110 Subordinated Note 13 50K
25: EX-10.111 Asset Purchase Agreement 40 142K
26: EX-10.112 Asset Purchase Agreement 40 169K
27: EX-10.113 Time Brokerage Agreement 28 96K
28: EX-10.114 Purchase Agreement 17 63K
29: EX-10.115 Asset Purchase Agreement 32 138K
30: EX-10.116 Asset Purchase Agreement 32 148K
31: EX-10.117 Asset Purchase Agreement 32 144K
32: EX-10.118 Asset Purchase Agreement 33 147K
33: EX-10.119 Time Brokerage Agreement 16 70K
34: EX-10.120 Loan Agreement 28 109K
35: EX-10.121 Second Amendment to Asset Purchase Agreement 6 22K
36: EX-10.122 Asset Purchase Agreement 41 180K
37: EX-10.123 Asset Purchase Agreement 94 303K
38: EX-10.124 Loan Agreement 52 170K
39: EX-10.125 Time Brokerage Agreement 28 98K
40: EX-10.126 Option Agreement 18 64K
2: EX-10.89 Amended as Restated Promissory Note 6 25K
3: EX-10.90 First Anemdment to Loan Agreement 2 15K
4: EX-10.91 Asset Purchase Agreement 15 73K
5: EX-10.92 Asset Purchase Agreement 41 174K
6: EX-10.93 The Brokerage Agreement 29 97K
7: EX-10.94 Asset Purchase Agreement 38 173K
8: EX-10.95 First Amendment 2 15K
9: EX-10.96 Promissory Note 4 21K
10: EX-10.97 Stock Purchase Agreement 42 199K
11: EX-10.98 Asset Purchase Agreement 42 178K
12: EX-10.99 Asset Purchase Agreement 42 177K
41: EX-27 Financial Data Schedule (For SEC Use Only) 1 12K
EXHIBIT 10.91
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Contract"), made the 15th day of
March, 1996 between RALPH E. KASCHAI, d/b/a CASHI SIGNS, CASHI CORP., a Florida
corporation, CASHI OUTDOOR ADVERTISING, INC., a Florida corporation, and CASHI
SERVICES, INC., a Florida corporation, whose address is 1460 33rd Street, P. 0.
Box 5672, Orlando, Florida 32855-5672 (collectively, the "Seller"), and PAXSON
OUTDOOR, INC., a Florida corporation, whose address is 601 Clearwater Park
Road, West Palm Beach, Florida 33401, or assignee (the "Purchaser").
1. Sale of Business and Assets. Seller agrees to sell and
Purchaser agrees to purchase, upon the terms and conditions herein set forth,
the outdoor advertising business owned and operated by Seller (the "Cashi
Advertising Business"'), consisting of one hundred sixty-nine (169) outdoor
advertising billboard faces as described in the schedule of billboard locations
attached as Exhibit "A", and the Business Summary incorporated as Exhibit "B",
as described hereinbelow, together with all real and personal property used in
connection with the business and all of the structures, buildings and
improvements now or hereafter placed thereon (hereinafter called the
"Properties"), and all of Seller's right, title and interest in and to all
leases, fixtures, equipment, installations, articles of personal property
(other than furnishings, decorations, etc.) and all books and records and other
intangibles used in connection with the Cashi Advertising Business (all
property sold hereunder is herein referred to collectively as the "Business and
Assets").
A. Description of Business and Assets. Seller has
prepared and has furnished to Purchaser a bound compilation of information
concerning the Cashi Advertising Business, and the Business and Assets,
including but not limited to the real properties owned and leased by the
Seller, and the billboards located thereon and the co-op signs, (herein called
the "Business Summary"). The Business Summary is hereby incorporated by this
reference as Exhibit "B" to this Contract.
B. Matters Excluded. The Assets shall not include
Seller's cash or cash equivalents, books and records pertaining to corporate
organization, employee pension and other benefit plans or collective bargaining
agreements.
2. Purchase Price. The Purchase Price for the Business and
Assets shall be the sum of TWELVE MILLION DOLLARS ($12,000,000.00), to be paid
in cash at Closing, adjusted as provided herein, including the following:
A. TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) as a
deposit (the "Deposit") to be held by Broad and Cassel, as Escrow Agent and
Closing Agent for First American Title Insurance Company, until the
consummation of this transaction, with any interest thereon paid to Purchaser.
The Deposit shall be placed and held in an interest bearing account. The
Deposit (which term includes all interest thereon) shall be paid to Seller at
Closing as a part of the Purchase Price, and shall be a credit to Purchaser
against payment of the Purchase Price.
B. The balance of the Purchase Price in the amount of
ELEVEN MILLION SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($11,750,000.00) at Closing
by wire transfer of funds to the account of the Escrow Agent on the day of
Closing, to be paid to Seller together with the Deposit described in paragraph
A above, subject to credits and prorations as provided herein, if any.
3. Seller's Representations. Seller represents to Purchaser, to
the best of his knowledge, as follows:
A. Organization Standing and Authority. Each corporate
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida. Each Seller, both corporate and
individual, has all requisite power and authority (i) to own, lease and use the
Business and Assets as now owned, leased and used; (ii) to conduct the Cashi
Advertising Business as now conducted; and (iii) to execute and deliver this
Contract and the documents contemplated hereby, and to perform and comply with
all the terms, covenants, and conditions to be performed and complied with by
each Seller hereunder. Each Seller is not a participant in any joint venture
or partnership with any other third party with respect to any part of the
operations of the Cashi Advertising Business.
B. Authorization and Binding Obligation. The execution,
delivery and performance of this Contract by each Seller has been duly
authorized by all necessary action on the part of such Seller and its
Shareholders, if applicable. This Contract has been duly executed and
delivered by each Seller and constitutes a legal, valid and binding obligation
of such Seller, enforceable against it in accordance with its respective terms,
except as the enforceability of this Contract may be affected by bankruptcy,
insolvency or similar laws affecting creditor's rights generally and by
judicial discretion in the enforcement of equitable remedies.
C. Consent. Subject to obtaining the consents listed
herein, the execution, delivery and performance of this Contract, and the
documents contemplated hereby, (i) do not require the consent of any third
party; (ii) will not conflict with any provision of such Seller's Articles of
Incorporation; (iii) will not conflict with, result in a breach of, or
constitute a default under, any law, judgment, order, ordinance, injunction, or
ruling of any court or governmental instrumentality; (iv) will not conflict
with, or constitute grounds for termination of, result in a breach of,
constitute a default under or permit the acceleration of any performance
required by the terms of any agreement, license or permit to which Seller is a
party or by which Seller may be bound; and (v) will not create any claim
liability, mortgage, lien, pledge, condition, charge or encumbrance of any
nature whatsoever upon any of the Business or Assets.
D. Accuracy of Statements and Exhibits. That the
Business Summary and all statements, instruments and Exhibits furnished to the
Purchaser by the Seller hereunder are true, complete and accurate in all
respects, represent all governmental authorizations and all material items of
tangible personal property necessary to conduct the Cashi Advertising Business,
as presently conducted, contain the final understanding between all parties
thereto, include copies of all amendments, supplements, modifications, exhibits
and schedules, are in good standing and
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free of defaults, and neither Seller nor any party to any such instrument
has done or failed to do anything which, with the giving of notice or the
passage of time, would constitute a default thereunder.
E. Leases and Tenancies.
(1) The Billboard Contracts and the Ground Leases
(collectively, the "Leases") described in the Business Summary incorporated as
Exhibit "B" hereto, represent all leases, ground leases, billboard contracts,
tenancies and guaranties necessary to conduct the Cashi Advertising Business,
as presently conducted, and there are no oral or written amendments or
modifications thereto, except as listed in Exhibit "B". All alterations,
installations and other work required to be performed by the Seller under the
provisions of any Lease have been completed and fully paid for.
(2) Between now and the Closing, Seller shall
neither by act nor omission do anything that would result in a default by
Seller under any of the Leases. Seller is not in default under any of the
Leases nor does Seller have any knowledge of any alleged default by Seller
under any of the Leases.
(3) Each and every Lease and all contracts,
insurance policies or other instruments related thereto or listed in the
Exhibits hereto are valid, binding agreements, and in full force and effect as
of the date hereof.
(4) Seller has not given or suffered any
assignment, pledge or encumbrance with respect to any of the Leases or its
interests thereunder which shall not be released at closing. All of the Leases
are assignable by Seller without the consent of any party, other than the Lake
Co-Op signs discussed in subparagraph (5) herein.
(5) Purchaser acknowledges that Seller has
informed it that the Lake Co-Op signs, as described in the Business Summary,
are based upon oral agreements with Lake, which cannot be assigned without the
consent of Lake. There shall be no contact with Lake during the Investigation
Period. The initial contact with Lake concerning such assignment, after the
Investigation Period has expired, shall be made by and through Seller. If
Seller shall be unable to obtain the consent of Lake to such assignment, the
Lake Co-Op signs shall be removed from the Business and Assets to be sold and
purchased hereunder.
(6) Seller has not received, nor will he take or
receive, prepayment of any rent from any tenant/advertiser, except for the
rental due on the first day of each current month during the term of each
Lease, and except for the security deposits described in certain of such
Leases, other than those specifically disclosed by Seller to Purchaser. None
of the tenants/advertisers have been given any concessions as consideration for
the rental of any space, and no tenant/advertiser is entitled to any
concession, rebate, allowance or free rent for any period before or after the
closing other than as provided in the Leases, or as specifically disclosed by
Seller to Purchaser. All renewal rights, if any, are shown in the Leases.
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(7) Attached hereto as composite Exhibit "C" is a
rent roll dated as of March 4, 1996, containing Board numbers, names of
tenant/advertisers and guarantors, if any, expiration dates, monthly rents,
annual rents, total current annual rent roll, renewals, and other information
with respect to the Leases, which Exhibit will be updated and recertified by
Seller at closing.
F. Taxes and Assessments. That all real and personal
property taxes, sales taxes and all similar liabilities or obligations,
assessments or expenses have been fully and timely paid. Seller has no
knowledge of any pending improvement liens or assessments to be made by any
authority,
G. Pending Litigation. That as of the date of this
Contract, there are no legal or other proceedings pending or contemplated
affecting the Business and Assets, except for those matters described in
Exhibit "D" attached hereto, and routine collection matters.
H. Contracts. That there are no employment,
subcontractor, trade, supply, security, service or maintenance agreements
involving the Business and Assets or any portions thereof which are now or will
hereafter be in force and effect, except as listed on Exhibit "E". Other than
those listed in Exhibit "E", Seller requires no other contract or agreement to
enable it to operate the Cashi Advertising Business, as presently conducted.
All of the contracts are in full force and effect and are valid, binding and
enforceable in accordance with their terms and Seller has full legal power and
authority to assign its rights under the contracts to Buyer, and such
assignment will not affect the validity or continuation of any of the
contracts.
I. Insurance. That the only policies of insurance
maintained by Seller now in force and effect with respect to the Business and
Assets are listed in Exhibit "F".
J. Compliance with Law. That all structures and
improvements of the Cashi Advertising Business have been constructed and
installed in full compliance with all applicable laws, statutes, ordinances,
codes, covenants, conditions and restrictions. Seller has complied in all
material respects with all federal, state and local laws, rules and regulations
applicable to the Cashi Advertising Business.
K. Ownership of Properties. That Seller owns, will own
by closing, and will be able to convey marketable fee simple title or its
leasehold interest, as the case may be (subject to the Lake consent referred to
hereinabove) to the Properties and the Business and Assets, including the
improvements and personal property referred to in Paragraph 1 hereof as
required hereunder. The Business and Assets are now, or will at closing be,
free and clear of all mortgages or liens, and any other obligations,
reservations, judgments, restrictions, limitations, prohibitions, conditions,
easements, encroachments, rights-of-way, interests, claims or rights which
would prevent or interfere with the use of the Business and Assets for
commercial billboard purposes.
L. Environmental Matters. To the best of Seller's
knowledge, Seller has complied in all material respects with all laws, rules
and regulations of all federal, state and local governments concerning the
environment, public health
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and safety, and employee health and safety. No charge, complaint, action,
suit, proceeding, hearing, investigation, claim, demand or notice has been
filed or commenced against either Seller in connection with its ownership or
operation of the Cashi Advertising Business, alleging any failure to comply in
any material respect with any such law, rule or regulation. To the best of
Seller's knowledge, no pollutant, contaminant or chemical, industrial,
hazardous or toxic material or waste has ever been manufactured, buried,
leaked, spilled or released by either Seller in connection with its ownership
and operation of the Cashi Advertising Business.
M. Truth of Representations. That all of Seller's
representations set forth in this Contract or in any certificate, document or
other instrument furnished to Purchaser pursuant hereto shall be true at the
time of closing, and all obligations involving action or performance by Seller
prior to closing shall be complied with.
4. Business Records. Seller shall make available at all
reasonable times for review by Purchaser or its agents, all books and records
maintained by Seller in connection with the operation of the Cashi Advertising
Business, including, without limitation, copies of all correspondence and
instruments related to every matter connected with the subject matter of this
Contract, permits, operations, construction, guarantees, architect
certificates, expenses, title insurance policies, agreements, leases and
compliance with laws. At Purchaser's request, at no cost to Seller, Seller
shall make copies of any and all instruments desired by Purchaser and deliver
same to Purchaser. Seller does hereby grant to Purchaser and Purchaser's
representatives, at Purchaser's cost, the right to thoroughly and completely
audit all income and expenses, profits and losses and operational results of
the Cashi Advertising Business for the three (3) year period prior to closing.
Seller shall make all books and records and other documents and information
related to the foregoing, readily available to Purchaser and its
representatives from time to time and at any reasonable time until closing.
5. Inspection Period. Purchaser shall have a period of up to
sixty (60) days from the Effective Date of this Contact (the "Inspection
Period") to inspect the Business and Assets and the books and records of the
Seller. Purchaser's obligation to close under this Contract is contingent upon
and subject to proper confirmation and verification by Purchaser of the
financial and other information made available to Purchaser by the Seller,
review of further financial or other information relating to the purchase of
the Business and Assets and operation of the Cashi Advertising Business, as may
be requested by Purchaser, all to the satisfaction of Purchaser in its sole
discretion.
6. Conduct of Business Prior to Closing. Seller shall have the
absolute right to continue to conduct the Cashi Advertising Business in the
manner of his normal business practices until closing, provided, Seller agrees
that, without Purchaser's written consent, there will be no out of the ordinary
change, amendment, modification or addition of any item contained or listed in
any Exhibit prior to the date of closing. No security deposit under any Lease
shall be returned in whole to in part to the depositor prior to the expiration
of such tenancy. Any new lease or renewal of an existing Lease, and service
contracts, shall be executed in good faith, at arm's length, and in accord with
Seller's normal business practices. At all times prior to closing, Seller
shall continue to conduct business with respect to the Business and Assets in
the same manner in which said business has been heretofore conducted
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and, except as otherwise expressly provided in this Contract, shall not,
without the prior written consent of Purchaser, make any change in or
acceleration of its normal and customary advertising, promotional and
maintenance practices. Seller shall provide Purchaser with a monthly statement
of income and expenses for the Cashi Advertising Business and such other
financial information as Purchaser may reasonably request.
7. Title. Within forty-five (45) days from the Effective Date of
this Contract, Seller shall obtain and deliver to Purchaser: a title
commitment covering all of the land included within the Properties, including
fee simple and leasehold interests, to be written on the ALTA Form B form for
at least the amount of the Purchase Price, which shall reflect that the
Seller's interest is subject only to the matters described in paragraph 3.K.
hereof. Purchaser shall have ten (10) business days from receipt of the title
commitment to examine and notify Seller in writing to object to any title
matters which are not in accordance with the terms of this Contract. If
Purchaser shall object to the title as to one or more of the parcels included
within the Properties, Seller shall have the right, in his sole discretion, to
determine whether any such title objection can be cured, and shall advise
Purchaser in writing at least two (2) days prior to closing. If Seller is
unable to remove said defect(s), or if Seller shall determine that such defects
cannot be removed prior to closing, or if Seller, despite its best efforts, is
unable to obtain and furnish the title commitment with respect to one or more
of the parcels within the time permitted, Purchaser shall have the option of
either accepting title as it then is, or removing such affected parcel from
this Contract, by written notice to Seller at least one (1) day prior to
closing. Failure to furnish the written notice shall be deemed a waiver of the
title objection and election to accept title as it then is. All mortgages
affecting the Properties will be satisfied by Seller prior to or at the
Closing.
8. Plans and Specifications. Within fifteen (15) days from the
Effective Date of this Contract, Seller will deliver to Purchaser all plans and
specifications, and all working drawings, for the Properties and improvements
constructed thereon, which are in the possession of Seller.
9. Adverse Change. Purchaser shall not be obligated to
consummate the Contract if there has been a change in the Business or the
tangible properties of the Business, taken as a whole, including any unrestored
damage, destruction or loss materially adversely affecting any Assets used or
useful in the conduct of the Business, or a loss materially adversely affecting
the conduct of the business, during the period from the date of the Contract
until Closing. For purposes of this Contract, the parties agree that
"materially adversely affecting" shall mean any such change or loss affecting
six percent (6%) or more of the billboard faces owned and operated by Seller.
10. Closing. The Closing of this transaction shall be held at the
offices of Broad and Cassel on or before ten (10) days following the end of the
Inspection Period (the "Closing Date"). The cash proceeds of the sale shall be
held in escrow by the Escrow Agent until recordation of the deed and assignment
of leases to Purchaser and delivery to Purchaser of an endorsement to the title
commitment showing Purchaser to be vested with a good, marketable and insurable
fee simple title or leasehold interest to the Properties, as the case may be,
which title shall be subject only to the matters described herein and those
accepted by Purchaser as herein provided. Possession of the Business and
Assets shall be delivered to the Purchaser at
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closing, free from all tenancies or other occupancies unless referred to herein
or approved by Purchaser.
A. Use of Buildings Subsequent to Closing. Anything herein to
the contrary notwithstanding, Seller shall retain the right to use and
possession of two (2) of the buildings located on the main shop property of the
Cashi Advertising Business, said buildings described as 1408 and 1460 33rd
Street, respectively, for a period of up to ninety (90) days after the Closing
Date, and the right to enter upon said property from time to time to remove
Seller's personal property which is stored and located thereon. It shall be
the sole responsibility of Seller to maintain insurance upon the Seller's
personal property which is stored in said buildings. Seller shall indemnify
Purchaser of and from any loss, damage or claim which Purchaser may incur by
reason of such use of the buildings described by Seller.
B. Right to Terminate. Purchaser or Seller may terminate this
Contract without penalty or liability (except in the event of a default of a
party) if for any reason the Closing hereunder has not taken place by the
Closing Date. Provided, however, that if this Contract is terminated for any
reason whatsoever under any provision of this Contract, other than a default by
Purchaser which would entitle Seller to receive and retain the Deposit under
the terms of this Contract, Seller shall be entitled to receive reimbursement
from the Deposit, for all its expenses, including, but not limited to, title
work, reasonable attorney's fees and the reasonable costs of Seller's employees
in producing the materials necessary for Closing, with the balance of the
Deposit after payment of Seller's expenses to be promptly refunded to Purchaser
along with an expense summary.
11. Closing Costs. State documentary stamps on the deed, or
assignment of leases shall be paid by Seller. Recording the deed and
assignment, the cost of title searches, and title insurance premium insuring
Purchaser's fee simple interest and leasehold interest in the Properties, as
the case may be, shall be paid one-half (1/2) by Seller and one-half (1/2) by
Purchaser at Closing.
12. Prorations. Ad valorem real property taxes and personal
property taxes levied against the Properties and the Business and Assets shall
be prorated based on the most recent tax bill or, if available, based on the
current year's valuation or assessment and the last known millage rate, and
reprorated when known for the year of closing. Certified governmental
improvement liens and any pending liens shall be paid by Seller.
Tenant/advertiser rents received by Seller or due and owing to Seller prior to
closing and operating expenses shall be prorated as of the date of closing.
Purchaser agrees to pay Seller any unpaid base monthly rents for the period
prior to closing which are actually collected by Purchaser from
tenants/advertisers, less all costs of collection, including, but not limited
to, attorney's fees. Seller shall retain the right to sue any Tenant after
closing for back rent or in connection with their Leases or tenancies for
matters owing or arising for the period prior to closing. All security
deposits, last month's rent, or prepaid rent shall be delivered by Seller to
Purchaser at closing or at Purchaser's option, deducted from the cash to close.
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13. Deliveries at Closing.
A. By Seller: Unless waived in writing by Purchaser, Seller
shall deliver or cause to be delivered to Purchaser at closing, in form and
substance reasonably satisfactory to Purchaser, the following:
(1) Seller shall use its best efforts to obtain and
deliver a written statement or certificate on forms provided or approved by
Purchaser, dated and current as of the month of closing, and executed and
acknowledged by the landlords under the Ground Leases having a remaining term
of more than one (1) year, certifying the amount of the annual rent, and total
rent paid for the past two years; the commencement and expiration dates of the
original term, renewal terms, or other options; that the landlord knows of no
default thereunder; that the Ground Leases described in the Exhibits represent
the complete, final, unmodified and unamended understanding between the parties
thereto and there exist no written or verbal modifications, amendments, side
agreements or understandings related to such Ground Leases or the tenancy
thereunder. If Seller fails or is unable to obtain a current estoppel for a
particular Ground Lease at closing, Seller shall furnish, in lieu of the
missing or non-current Ground Lease estoppels, a certification from Seller
representing the truth and accuracy of all the information that would appear on
a current estoppel for such Ground Lease. Seller shall represent at closing
that it has no knowledge of and has received no notice of any matters which
would cause any of the items in any Ground Lease estoppel to be or become
incomplete, inaccurate or untrue. Seller and Purchaser agree that Seller shall
not be required to obtain such certificates for Ground Leases for a remaining
term of less than one (1) year. However, Seller agrees to cooperate and
consult with Purchaser in any efforts Purchaser may make to extend for up to
twelve (12) months any Ground Lease that has a remaining term of less than one
(1) year.
(2) The original or duplicate original of each and every
instrument listed in all Exhibits annexed hereto, all instruments modifying any
such instrument, each report, notice, agreement, arbitration award and court
decision, if any, or a copy thereof relating to any matter herein contained and
a certified rent roll current as of closing in form and content of Exhibit "C".
(3) The title insurance policy described in paragraph 7
above.
(4) A bill of sale, executed and acknowledged by Seller,
containing warranties of title and against encumbrances (including, without
limitation, all chattel mortgages, conditional sales and security interests of
every nature) covering any personal property included in this sale, and
assignments of the certificates of title to all vehicles and equipment owned
and utilized by the Cashi Advertising Business. All personal property, sales
and other taxes, if any, and all tax returns required to be made in connection
with the instant transactions shall be promptly paid and filed by Seller at
Seller's sole cost and expense.
(5) Any and all municipal, county and state permits or
licenses necessary for the use or occupancy of the buildings on the Premises
and the billboards; provided it is agreed that such delivery shall not include
any contractor's licenses or competency licenses held by Seller.
8
(6) A warranty deed which includes full covenants of
title to the Properties, in proper form for recordation, duly executed, and
acknowledged by Seller, effective to convey to Purchaser or its assigns, the
fee simple title to the properties owned by Seller, free of all encumbrances,
except as herein stated.
(7) An Assignment to Purchaser, in recordable form, of
all of Seller's rights, title and interest in all Leases or other tenancies and
all other contracts to be assumed by Purchaser in connection with the Business
and Assets; provided Purchaser acknowledges that the Lake Co-Op signs are based
upon oral agreements with Lake, which must be confirmed prior to closing and
cannot be assigned by Seller without Lake's consent.
(8) Keys to the Business and Assets and every lock
thereon.
(9) An Assignment to Purchaser of all warranties and
guaranties on roof and equipment and builder's guaranties which have not
expired. The Seller represents that it has not done, and that it will not
between now and the date of closing do anything or suffer any act which could
cancel, terminate, reduce or interfere with the validity, effectiveness or good
standing of any such guaranties.
(10) An agreement whereby Seller agrees to indemnify and
hold Purchaser harmless against and reimburse Purchaser for any and all direct
losses, liabilities or damages resulting from the operation or ownership of the
Cashi Advertising Business prior to the Closing, including any liabilities
arising under the Leases or the other assumed contracts which relate to events
occurring prior to the Closing Date, including claims from third parties.
(11) Instruments reasonably satisfactory to Purchaser and
the title insurance company reflecting the proper power, good standing and
authorization for the sale of the Business and Assets from Seller to Purchaser
hereunder.
(12) An affidavit by Seller that there are no liens or
encumbrances existing on the Properties, and Assets, there has been full
payment of all labor, services and material rendered to the Business and Assets
by all contractors, materialmen, developers, and the owner, and a warranty,
indemnification and hold harmless agreement against such claims, liens or
encumbrances on account of any of same, there are no liens or encumbrances
existing on the Business and Assets, there has been full payment of all labor,
services and material rendered to the Business and Assets by all contractors,
subcontractors, materialmen, developers, and the owner, and containing such
other matters as the title insurance company may reasonably require for the
removal of the standard exceptions to title.
(13) An Affidavit by Seller that there have been no
changes in the condition of title from that shown in the title commitment
delivered to Purchaser.
(14) Notification to tenants/advertisers and other persons
of change of ownership on forms provided or approved by Purchaser.
(15) Affidavit of non-foreign status from each Seller.
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B. By Purchaser: Unless waived in writing by Seller, Purchaser
shall deliver or cause to be delivered to Seller at Closing, in form and
substance reasonably satisfaction to Seller, the following:
(1) An agreement whereby Purchaser will agree to
assume certain existing contracts and Leases of Seller relating to the Assets,
as described in this Contract. Purchaser shall assume and undertake to pay,
discharge and perform all obligations and liabilities of Seller under the
assumed contracts and Leases insofar as they relate to the time on and after
the Closing Date and arise out of events related to Purchaser's ownership of
the Assets on or after the Closing Date, and agrees to indemnify and hold
Seller harmless of and from all claims, losses or damage resulting from the
operation of the Cashi Advertising Business by Purchaser subsequent to the
Closing Date.
(2) The Purchase Price as provided herein.
C. By Seller and Purchaser:
(1) A non-competition and consulting agreement,
containing terms and conditions mutually agreed upon by the parties, including
a restrictive covenant prohibiting Ralph E. Kaschai and Cash Kaschai from
competing against Purchaser in the business of outdoor advertising in any
county in which the Business and Assets are located for a term of three (3)
years.
14. Fire, Condemnation. If, prior to closing, any portion of the
Business and Assets shall be damaged or destroyed by fire or other casualty, or
any portion of the Business and Assets shall be condemned or taken by eminent
domain, then in such event, Purchaser shall remain obligated to conclude the
transaction herein provided for. In the case of fire or other casualty, Seller
shall be obligated to restore the Business and Assets to the condition existing
prior to such damage with reasonable diligence, the closing shall occur as
provided herein, and Seller shall be obligated to complete the restoration as
soon as reasonably possible after the closing. There shall be no reduction in
the Purchase Price and Purchaser shall be entitled in the case of a
condemnation or taking by eminent domain, to receive the entire award with
respect to the Business and Assets or the portion thereof so taken and Seller
will execute and deliver to Purchaser on the closing hereunder all proper
instruments for the assignment and collection of such award. The risk of loss
or damages to the Business and Assets by fire or otherwise until the delivery
of the deed and occupancy by Purchaser is assumed by Seller. Seller agrees to
maintain in force and effect until the closing, the insurance policies listed
in Exhibit "F".
15. Broker. Purchaser and Seller each represent and warrant to
the other that they have dealt with no broker in connection with this
transaction. Purchaser and Seller agree to, and hereby do indemnify and hold
each other harmless from and against any and all causes, claims, demands,
losses, liabilities, fees, commissions, settlements, judgments, damages,
expenses and fees (including attorneys' fees and court costs) incurred by said
party in connection with any claim for commissions, fees, compensation, or
otherwise for the bringing about of this transaction, or the consummation
thereof which may be made against the other by any person,
10
firm or entity as the result of any of the acts of such indemnifying party or
of its representatives.
16. Default. In the event this transaction does not close solely
on account of Purchaser's default, Seller may receive and retain the Deposit
from the Escrow Agent as Seller's sole remedy and as agreed upon and liquidated
damages on account of Purchaser's breach of contract, and both parties shall
thereupon be relieved of all further obligations to each other hereunder. If
Seller fails to perform any of the covenants of this Contract, the aforesaid
Deposit paid by the Purchaser shall, at the option of Purchaser, be returned to
the Purchaser on demand and the Purchaser shall have as its sole remedy
hereunder, the right of specific performance of this Contract; provided, if any
of the representations of Seller herein shall be determined to be incorrect,
the sole remedy of Purchaser shall be the right to terminate this Contract and
to receive back the Deposit paid hereunder. Provided further, anything herein
to the contrary notwithstanding, if Seller shall default by selling the Cashi
Advertising Business, or any portion thereof, to another party, then in such
event Purchaser shall have the right to recover damages as a result of that
default by Seller.
17. Relationship of Parties. Nothing contained in this Contract
or in the activities contemplated hereby shall be construed to create the
relationship of principal and agent, partnership, joint venture, trust,
tenants/advertisers in common or any other relationship between the parties
hereto other than separate and distinct entities dealing at arm's length as
Seller and Purchaser, respectively, for their own separate interests and
benefit.
18. Confidential Transaction. Purchaser and Seller each agree
that it will use its best efforts to keep confidential (except for disclosure
requirements of federal or state securities laws and securities markets along
with such disclosure to attorneys, bankers, consultants, underwriters,
investors, etc., as may be appropriate in the furtherance of this transaction)
all information of a confidential nature obtained by it from the other
(including the terms of this proposal and the identify of Purchaser) in
connection with the transactions contemplated by this Contract, and in the
event that such transactions are not consummated, will return to the other all
documents and other materials obtained from the other in connection therewith.
19. Escrow Agent. The Escrow Agent shall be BROAD and CASSEL, and
the Escrow Agent shall not be liable for any acts taken in good faith, shall
only be liable for its willful misconduct or gross negligence, and may, in its
sole discretion, rely upon the written notices, communications, orders or
instructions given by any party hereto. Seller and Purchaser, jointly and
severally, indemnify and hold the Escrow Agent harmless from and against any
and all matters directly or indirectly related to or in connection with the
funds held by Escrow Agent or this Contract, including, without limitation,
attorneys' fees and any other costs or expenses (hereinafter referred to as
"Escrow Expenses"). In the event that any Escrow Expenses are paid by Escrow
Agent, Escrow Agent may recover such payments, at its option, as follows: (a)
as a first priority out of the funds held by Escrow Agent, or (b) from Seller
or Purchaser. If either party makes a written demand upon Escrow Agent for
payment of the deposit, Escrow Agent shall give notice to the other party of
such demand. If Escrow Agent does not receive a written objection from the
non-demanding party to the proposed payment within five (5) days after the
giving of such notice, Escrow Agent is authorized to make such payment. If
Escrow Agent does receive such written objection within such 5-day period or if
for any other reason Escrow Agent
11
in good faith shall elect not to make such payment, Escrow Agent shall continue
to hold such amount until otherwise directed by written instructions from the
Seller and Purchaser or a final judgment of a court having jurisdiction.
Escrow Agent shall have the right at any time to interplead the escrowed
proceeds and interest thereon, if any, in the circuit court of Orange County,
in which the Escrow Agent and the Business office are located. Escrow Agent
shall give written notice of such interpleader to Seller and Purchaser. Upon
such interpleader, Escrow Agent shall be relieved and discharged of all further
obligations and responsibilities hereunder, and Seller and Purchaser shall
indemnify Escrow Agent for any and all expenses incurred.
20. Governing Law, Actions. This Contract is entered into and
shall be governed by the laws of the State of Florida. The venue for any
action to enforce the terms of this Contract, or concerning the subject matter
of this Contract, shall be located in Orange County, Florida.
21. Notices. Each notice or other communication shall be in
writing and given by hand delivery, or by mailing by certified or registered
mail, postage prepaid, return receipt requested, or by Federal Express or other
comparable expedited mail service, or Western Union telegram, to the addresses
first set forth above or at such other addresses as the parties hereto may from
time to time designate by notice given in the manner herein provided. Notices
shall be effective upon receipt if hand delivered, or upon deposit with Federal
Express, another comparable mail service, Western Union, or in the United
States mail as aforestated.
22. Further Instruments. At Purchaser's request, at any time and
from time to time before and after closing, Seller will execute, acknowledge
and deliver all instruments reasonably requested by Purchaser in order to carry
out the purposes of this Contract.
23. Waiver. Prior to and at closing, Purchaser may, in its sole
discretion, waive in writing any requirements for payment or performance by
Seller, and the truth and accuracy of any of Seller's representations,
warranties and agreements hereunder.
24. Merger. All understandings and agreements between the parties
are merged in this Contract which alone fully and completely expresses their
agreement.
25. Modifications, Successors. This Contract may be modified only
by an instrument in writing, signed by each of the parties. The provisions
aforesaid are to apply to and bind the heirs, executors, administrators,
successors and assigns of the respective parties.
26. Plurals, Captions. For all purposes of interpretation or
construction of this Contract, the singular shall include the plural and the
plural shall include the singular. Words of any gender shall include words of
any other gender. Captions and paragraph headings used herein are for
convenience only and are not part of this Contract and shall not be used in
construing it.
12
27. Severability. If any provision or portion of this Contract is
found by a court of competent jurisdiction to be unenforceable or null and
void, such provision shall be deemed stricken and severed from this Contract,
and the remaining provisions and portions thereof shall continue in full force
and effect.
28. Confidential Business Information. Purchaser acknowledges and
agrees that all information which is contained in the Business Summary, and in
the books and records of the Cashi Advertising Business is deemed and agreed to
be proprietary and strictly confidential. None of such information which
Purchaser may obtain from the Business Summary or the books and records of
Seller may be disclosed, communicated or published to any other person, for any
reason whatsoever, without the prior written consent of Seller.
Purchaser will not be permitted, under any circumstances, to contact
any person whose name, identity or position is obtained from the Business
Summary or the books and records of Seller, or as a result of Seller having
permitted Purchaser access to portions of those books and records, for any
reason whatsoever, without the prior written consent of Seller. The term
"person" as used in this Contract shall include any natural person,
corporation, partnership, company, firm, association or other form of business
entity.
By execution of this Contract, Purchaser acknowledges and agrees that
any violation of the terms and conditions of this provision shall be deemed to
be an unfair trade practice under both federal and state laws having
applicability, and shall also be deemed to be and constitute a tortious
interference with an existing contract and/or business relationship, as the
case may be. In the case of any such violation of the terms of this Contract,
Purchaser further acknowledges and agrees that Seller shall be entitled to
recover from Purchaser, any and all damages which Seller may suffer or incur
arising directly or indirectly as a result of the violation of the terms of
this Contract.
Each party further agrees that in the event it shall be necessary for
such party to employ the services of an attorney to enforce the terms of this
Contract, whether or not it shall be necessary to file a legal action in a
court of competent jurisdiction, the non-prevailing party shall also be
obligated to pay all costs and expenses which the prevailing party may incur in
so enforcing the terms of this Contract, including but not limited to attorneys
fees.
Notwithstanding other inconsistent language in this paragraph,
Purchaser will not be in violation of this paragraph's prohibitions due to the
disclosure requirements of federal or state security laws and the regulations
of the American Stock Exchange. Similarly, disclosures to attorneys, bankers,
underwriters, etc. as may be appropriate in furtherance of this transaction
shall not be in violation of this paragraph 28.
29. Time for Acceptance. This Contract must executed by Seller
and delivered to Purchaser within three (3) days after execution by Purchaser
and delivery of the executed Contract to Seller. If not so executed, the
Contract shall be considered null and void and of no further force and effect,
and the parties shall be discharged from all further obligations hereunder.
13
30. Effective Date. The Effective Date of this Contract shall be
the date when this Contract has been signed by the last one of Purchaser and
Seller to execute same, and a fully-executed copy thereof delivered to the
other party.
EXECUTED as of the date first above written, in several counterparts,
each of which shall be deemed an original but all constituting only one
contract.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF: SELLER:
/s/ ??? /s/ Ralph E. Kaschai
---------------------------- ---------------------------------
RALPH E. KASCHAI, D/B/A CASHI
SIGNS
/s/ ???
----------------------------
DATED: MARCH 15, 1996
---------------------
CASHI CORP.
/s/ ??? BY: /s/ Ralph E. Kaschai
---------------------------- -------------------------------
RALPH E. KASCHAI, PRESIDENT
/s/ ???
----------------------------
DATED: MARCH 15, 1996
---------------------
CASHI SERVICES, INC., AND CASHI
OUTDOOR ADVERTISING, INC.
/s/ ??? BY: /s/ Ralph Cash Kaschai
---------------------------- -------------------------------
RALPH CASH KASCHAI, PRESIDENT
/s/ ???
----------------------------
DATED: MARCH 15, 1996
---------------------
{SIGNATURES CONTINUED ON FOLLOWING PAGE}
14
PURCHASER:
PAXSON OUTDOOR, INC.
/s/ ??? BY: /s/ ???
--------------------------------- ------------------------------------
President
/s/ ???
---------------------------------
DATED: MARCH , 1996
--------------------------
ESCROW AGENT:
RECEIPT OF FUNDS IN THE AMOUNT OF
DEPOSIT ACKNOWLEDGED.
(If paid by check, subject
to clearance).
BROAD AND CASSEL
By: /s/ ???
------------------------------------
Partner
DATED: MARCH 15, 1996
15
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘10-Q’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 8/13/96 |
| For Period End: | | 6/30/96 |
| | 3/15/96 | | 14 | | 15 |
| | 3/4/96 | | 4 | | | | | S-1/A |
| List all Filings |
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