Quarterly Report — Form 10-Q
Filing Table of Contents
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
EX-10.114 — Purchase Agreement
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EXHIBIT 10.114
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT made and entered into this 17th day of July,
1996, by and between IMPACT COMMUNICATIONS OF CENTRAL FLORIDA, INC., a Florida
corporation, hereinafter referred to as "Seller", and PAXSON 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 nineteen (19) and, through management
agreements, the operator of three (3) outdoor advertising display structures 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 located ("Land Leases"), permits necessary for the ownership and
operation of the 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 a commercial billboard outdoor advertising business (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, 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 FIVE
MILLION SEVEN HUNDRED THOUSAND DOLLARS ($5,700,000), adjusted as provided
herein. Within three days of full execution of this Agreement, Buyer shall
make an earnest money deposit in the amount of Two Hundred Fifty Thousand
Dollars ($250,000) with First Union National Bank of Florida, N.A. (the
"Deposit") pursuant to an Escrow Agreement among the parties. 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 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
shall 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 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 relating to the Outdoor
Advertising Business, provided Buyer desires to assume such agreements and
provided such agreements are terminable by Seller or Seller's successor upon no
more than thirty days written notice (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. Franchises, approvals, permits, licenses, orders,
registrations, certificates, variances, and similar rights obtained from
governments and governmental agencies;
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H. 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;
I. All currently existing and hereafter arising proceeds
of all of the foregoing.
The term "Assets" shall specifically exclude all cash or cash
equivalents belonging to Seller, all accounts receivable of Seller existing as
of the date of Closing, all books and records pertaining to Seller's corporate
formation and operation, all deposits held by Seller under Sign Leases, and all
choses in action relating to, or arising out of the operation of the Outdoor
Advertising Business prior to Closing, specifically including, without
limitation, all rights to the litigation known as Impact Communications of
Central Florida, Inc. and Frances Sirianni vs. National Advertising d/b/a 3M
Media and POA Acquisition Corp., Case No. 95-142-3LV, and Impact Communications
of Central Florida, Inc. vs. HMO, Case No. CI 951749 (collectively hereinafter
referred to as the "Excluded Assets"). Seller shall be entitled to retain
exclusive control over, and possession of, all Excluded Assets.
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.
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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.
A. Buyer is a corporation duly organized, validly
existing and in god standing under the laws of the State of Florida and Buyer
has all requisite power and authority to execute and deliver this Agreement and
the Escrow Agreement and the documents contemplated hereby and thereby 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 of 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 organized, validly
existing and in good standing under the laws of the State of Florida and has
all requisite power and authority to execute and deliver this Agreement and the
Escrow Agreement
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and the documents, contemplated hereby and thereby 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 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 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 affect
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 (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
presently 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
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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 and their assignment to Buyer.
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 Seller's 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 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 as now conducted. 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. Except as set forth on Exhibit G, 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. Except as set forth on Exhibit H, 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 or the Outdoor Advertising
Business nor does Seller know or have reason to be aware of any basis for the
same.
K. Seller has complied in all material respects with all
laws, rules, and regulations of all federal, state and local governments
concerning the
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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 or the Outdoor Advertising Business 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.
N. 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. 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 within sixty (60) days
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.
8. Operations Prior to Closing. Seller agrees that, between the
date of this Agreement and the Closing, Seller shall operate the Outdoor
Advertising Business diligently in the ordinary course of business in
accordance with its past practices and in accordance with the other covenants
in this Agreement.
A. Seller shall not increase the compensation, bonuses or other
benefits payable or to be payable to any person employed in connection with the
conduct of the Outdoor Advertising Business, except in accordance with past
practices.
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B. Seller will not enter into any contract or commitment relating
to the Assets or the Outdoor Advertising Business or amend or terminate any
contract or incur any obligation that will be binding on Buyer after Closing,
except for advertising sales made in the ordinary course of business.
C. Seller shall not sell, assign, lease or otherwise transfer or
dispose of any of the Assets, except where no longer used or useful in the
Outdoor Advertising Business or in connection with the acquisition of
replacement property of equivalent kind and value.
D. Seller shall not create, assume or permit to exist any claim,
liability, mortgage, lien, pledge, condition, charge or encumbrance of any
nature whatsoever upon the Assets or the Outdoor Advertising Business except
for liens set forth on Exhibit I which shall be removed on or prior to Closing
and liens for current taxes not yet due and payable.
E. Seller shall not cause or permit by any act or failure to act
any of the licenses or permits set forth in Exhibit D to expire or to be
revoked, suspended or modified or take any action that could cause any
governmental authority to institute proceedings for the suspension, revocation
or adverse modification of any of such licenses.
F. Seller shall use its best efforts to preserve the Outdoor
Advertising Business and use its best efforts to keep available to such Outdoor
Advertising Business its present employees and to preserve the present
relationships with suppliers, advertisers and other having business relations
with it.
9. Buyers 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:
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;
8
D. No 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;
F. Schrimsher Land Fund VII, Ltd. shall have agreed to
modify its Land Lease in accordance with the terms of the provisions of
Paragraph 12F below.
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 a date mutually
agreed upon by the parties, but in any event on or before July 31, with the
parties using their best efforts to close on or before July 24. The Closing
shall occur at the Seller's attorney's offices at a time mutually agreed to by
the parties.
12. Documents for Closing. Upon the Closing hereof, Seller shall
deliver the following documents to Buyer:
A. Duly executed Warranty Bill 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, and Permits in Seller's possession and control,
and all records and correspondence in Seller's possession or control relating to
the Assets and the
9
Outdoor Advertising Business being sold hereunder, with the etc.
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 J 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;
E. Seller and Frances R. Sirianni shall have executed a
Noncompetition Agreement substantially in accordance with that attached hereto
as Exhibit K;
F. Seller's real property leases with Schrimsher Land
Fund VII, L.T.D. ("Schrimsher") for the six (6) I-4 Billboard locations shall
have been amended in consideration of a one-time, lump-sum payment of One
Million Six Hundred Thousand Dollars ($1,600,000) due and payable in cash to
Schrimsher by Buyer at Closing. The amended lease shall provide for a monthly
lease fee of $16,200 for all six (6) locations or twenty percent (20%) of the
total net revenue from the six (6) locations (as defined in the lease)
whichever is greater.
G. 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 earnest money deposit
paid hereunder shall be paid to Seller, as liquidated damages and not as a
penalty, as Seller's exclusive remedy, and the parties thereafter shall be
relieved of any further liability or
10
obligation hereunder. If Seller shall breach any material representation,
warranty, or covenant contained herein, Buyer, in addition to obtaining a
refund of its earnest 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, 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 Sellers. 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.
11
(iii) Any and all out-of-pocket costs and expenses,
including reasonable legal fees and expenses, incident to 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 of 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.
(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 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
12
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 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
for a period of
13
eighteen (18) months.
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 Orange 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 consistent with past practices.
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
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
14
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.
[Download Table]
If to Seller: Impact Communications of Central Florida, Inc.
1712 Demetree Drive
Winter Park, FL 32789
FAX: 407-628-1511
ATTN: Fran Sirianni, President
With a Copy to: Douglas E. Starcher, Esq.
Broad and Cassel
390 North Orange Avenue
Orlando, FL 32801
If to Buyer: Paxson Outdoor, Inc.
1460 33rd Street
Orlando, FL 32839
FAX: 407-425-2264
ATTN: John Jennings, General Manager
With a Copy to: William L. Watson, Esq.
Paxson Communications Corporation
601 Clearwater Park Road
West Palm Beach, FL 33401
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. Transaction Costs. Each party shall be responsible for paying
their own attorney's and accounting fees in connection with this transaction.
All closing costs, such as transfer taxes and filing fees, shall be paid by
Buyer.
23. 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.
15
24. 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.
25. 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.
26. 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.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
the day and year first above written.
[Enlarge/Download Table]
In the Presence of: Impact Communications of Central Florida, Inc."Seller"
/s/
-----------------------------------------
By: /s/ Francis R. Surann
----------------------------------------------------------
/s/ Its: President
----------------------------------------- ----------------------------------------------------------
As to "Seller"
In the Presence of: Paxson Outdoor, Inc.
"Buyer"
/s/ Julie Greengrass
-----------------------------------------
By: /s/ Bill Watson
----------------------------------------------------------
/s/ Sue Parks Its: /s/ Secretary
----------------------------------------- ----------------------------------------------------------
As to "Buyer"
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STATE OF FLORIDA ]
]
COUNTY OF Orange ]
I, Lois A. McCoy, a Notary Public in and for the State of Florida,
do hereby certify that Frances R. Sirianni the duly authorized President of
Impact Communications of Central Florida, Inc., personally appeared before me
in said jurisdiction and acknowledged executing the foregoing Purchase
Agreement on behalf of the corporation. He/she is personally known to me or
has produced _______________________________ ________________________________as
identification.
Given under my signature and seal this 17th day of July, 1996.
[SEAL]
/s/ Lois A. McCoy
-----------------------------------
Notary
STATE OF FLORIDA ]
]
COUNTY OF Palm Beach ]
I, Lori Closson, a Notary Public in and for the State of Florida, do
hereby certify that William L. Watson the duly authorized Secretary of Paxson
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 18th day of July, 1996
/s/ Lori E. Closson
[SEAL] -------------------------------
Notary
17
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