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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
AGREEMENT entered into as of the 8th day of May, 1996, by and between
RailCom, Ltd., a Georgia corporation ("RailCom"), and Outdoor Systems, Inc., a
Delaware corporation ("Purchaser").
RailCom has entered into that certain Purchase and Sale Agreement
between CSX Realty Development Corporation, The Three Rivers Railway Company,
The Atlantic Land and Improvement Company, Winston-Salem Southbound Railway
Company, Gainesville Midland Railroad Company, Richmond, Fredericksburg and
Potomac Railway Company, and RailCom, Ltd., dated January 23, 1996, as amended
by that certain Amendment to Purchase Agreement, dated March 29, 1996, and that
certain Second Amendment to Purchase Agreement, dated May 8, 1996, a copy of
which is attached hereto as Exhibit A (the "CSX Purchase Agreement"). References
herein to "CSX" refer collectively to all of the parties identified as "Seller"
in the CSX Purchase Agreement (i.e., all of the parties other than RailCom,
Ltd.). All capitalized terms used in this Agreement shall have the meanings
ascribed to them by the CSX Purchase Agreement, except to the extent otherwise
defined by this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, and covenants herein contained, the parties agree
as follows:
1. Purchase and Sale of Assets. On and subject to the terms and
conditions set forth in this Agreement, within two (2) days after RailCom and
CSX consummate the transactions contemplated by the CSX Purchase Agreement,
RailCom shall sell to Purchaser, and Purchaser shall purchase from RailCom all
(but not less than all) of the assets and rights that RailCom acquires from CSX
pursuant to the CSX Purchase Agreement, including the Easement and the License
Agreement for each Outdoor Advertising Facility (the "Purchased Assets"), and
Purchaser shall assume all obligations and liabilities of RailCom under the CSX
Purchase Agreement (including the RailCom Note), the Easement and the License
Agreement.
2. Purchase Price. The purchase price for the Purchased Assets shall be
Two Million Four Hundred Thousand Dollars ($2,400,000.00) (the "Purchase
Price").
3. Payment of Purchase Price. At the Closing, Purchaser shall pay the
Purchase Price to RailCom by wire transfer of immediately available funds to
such account in the United States as is designated by RailCom prior to Closing.
4. Transfer of Assets. At the Closing, (i) RailCom shall execute and
deliver to Purchaser a limited warranty deed conveying to Purchaser the Easement
acquired by RailCom pursuant to the CSX Purchase Agreement, and (ii) RailCom and
Purchaser shall execute an assignment and assumption instrument in substantially
the form attached hereto as Exhibit B. After the Closing, RailCom shall from
time to time at the request of Purchaser and without further consideration
execute and deliver to Purchaser such additional instruments of transfer as
Purchaser may reasonably request to transfer more effectively the Purchased
Assets to Purchaser.
5. Prorations; Transfer Tax. The parties will prorate as of the Closing
Date all revenues and expenditures relating to the Purchased Assets, including
all payments from licensees and all ad valorem taxes and utility charges
(determined in the same manner as set forth in the CSX Purchase Agreement). In
particular, without limiting the generality of the preceding sentence, RailCom
shall be entitled to all payments of whatever kind due from licensees under the
various License Agreements attributable to the period through and including the
Closing Date (determined in the same manner as set forth in Paragraph 3.2 of the
CSX Purchase Agreement). RailCom shall bear the real estate transfer tax, if
any, on the transfer of the Easement from CSX to RailCom (but not from RailCom
to Purchaser). RailCom agrees to deposit with Purchaser at Closing the sum of
$20,000 to be used by Purchaser, and further agrees to promptly pay or reimburse
Purchaser for any such tax in excess of the Deposit, to satisfy RailCom's
obligation pursuant to the preceding sentence as and when the Easement is
recorded. Without diminishing RailCom's continuing obligation to bear the tax
(pursuant to the second preceding sentence), any portion of the Deposit not
expended by Purchaser by the date occurring one year after Closing shall be
refunded, without interest, to RailCom.
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6. Closing. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Railcar, Ltd. at
1819 Peachtree Road, N.E., Suite 315, Atlanta, Georgia 30309, commencing at
11:00 a.m., Georgia time, on May 22, 1996, or at such other time and place as
RailCom and Purchaser may mutually determine. The date and time of the Closing
is referred to herein as the "Closing Date."
7. Expenses. All expenses incurred by Purchaser in connection with the
authorization, preparation, execution and performance of this Agreement and the
transactions contemplated hereby shall be paid by Purchaser. All expenses
incurred by RailCom in connection with the authorization, preparation, execution
and performance of this Agreement and the transactions contemplated hereby shall
be paid by RailCom.
8. Brokers. RailCom and Purchaser hereby represent and warrant that no
broker or finder has acted on its behalf in connection with this Agreement or
the transactions contemplated herein. Each party (the "Indemnitor") shall
indemnify the other party and hold it harmless from and against any and all
claims or demands for commissions or other compensation from any broker or other
similar agent claiming to have been employed by or on behalf of the Indemnitor.
9. Maintenance of CSX Purchase Agreement. RailCom shall take all steps
reasonable and necessary on its part to maintain the CSX Purchase Agreement in
full force and effect and to consummate the transactions contemplated by the CSX
Purchase Agreement.
10. Representations and Warranties of RailCom. RailCom represents and
warrants to Purchaser as follows:
(a) Due Authorization by RailCom. RailCom is a corporation
duly organized, validly existing and in good standing under the laws of Georgia.
RailCom has the full right, power, and authority to execute and deliver and to
perform and comply with this Agreement in accordance with its terms; this
Agreement has been duly and validly executed and delivered by RailCom and has
been duly and validly authorized by all necessary corporate action; this
Agreement constitutes the valid and legally binding obligation, subject to
general equity principles, of RailCom, enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally; and neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will constitute a violation or breach by
RailCom of its organizational and governing documents or any provision of any
contract or other instrument to which RailCom is a party or is bound.
(b) Prior Commitments. Except as set forth in the CSX Purchase
Agreement, RailCom is not party nor subject to any outstanding contracts,
demands, commitments, or other agreements or arrangements under which it is or
may become obligated to sell, transfer or assign any of the Purchased Assets.
(c) Noncontravention. To the knowledge of RailCom, the sale of
the Purchased Assets contemplated hereby does not violate any law of the United
States or of any state.
(d) Litigation. RailCom is not a party to, and is not
threatened with, any legal action or other proceeding before any court or
administrative agency which might materially adversely affect RailCom's ability
to perform its obligations and consummate the transactions contemplated herein,
and, to the knowledge of RailCom, there is no basis for any such legal action or
proceeding.
(e) Contracts, Leases, Etc. There is no default, and no facts
or circumstances which with the passage of time or otherwise shall constitute or
result in a default, with respect to the CSX Purchase Agreement, and neither the
execution of this Agreement nor the consummation of the transactions
contemplated herein shall cause or result in a default or acceleration of
liability under the CSX Purchase Agreement. The execution and delivery of this
Agreement by RailCom and the consummation of the transactions contemplated
hereby do not require the consent of any party other than CSX.
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(f) CSX Purchase Agreement. A true, correct and complete copy
of the CSX Purchase Agreement is attached hereto as Exhibit A. The CSX Purchase
Agreement is owned by RailCom free and clear of any liens, charges or other
encumbrances of any nature whatsoever. Railcom shall not make any changes,
alterations, modifications or amendments to the CSX Purchase Agreement without
the prior written consent of Purchaser.
(g) No Suits, Etc. There are no actions, suits, complaints,
claims, counter-claims, petitions, set-offs, inquiries, investigations,
administrative proceedings, arbitrations, or private dispute resolution
proceedings, whether at law, in equity, by contract or agreement, or otherwise,
pending or threatened against, by or affecting RailCom, RailCom's assets and
properties or RailCom's business. RailCom has not been charged with, nor is it
under investigation with respect to any charge concerning, any violation of any
provision of, any federal, state, local or municipal constitutions, statutes,
rules, regulations, ordinances, acts, codes, legislation, treaties, conventions
and similar laws and legal requirements as in effect from time to time. There
are no unsatisfied judgments against RailCom for any orders, writs, judgments,
decrees, rulings and awards of any court, tribunal, agency, administrative or
governmental body to which RailCom or any of RailCom's assets and properties are
subject.
11. Representations and Warranties of Purchaser. Purchaser represents
and warrants to RailCom as follows: Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Purchaser has full corporate power and authority to make, execute and perform
this Agreement and the transactions contemplated hereby. This Agreement and all
transactions required hereunder to be performed by Purchaser have been duly and
validly authorized and approved by all necessary corporate action on the part of
Purchaser. This Agreement has been duly and validly executed and delivered on
behalf of Purchaser by its duly authorized officers, and constitutes the valid
and legally binding obligation, subject to general equity principles, of
Purchaser, enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
constitute a violation or breach of Purchaser's organizational and governing
documents, or any provision of any contract or other instrument to which
Purchaser is a party or is bound.
12. Conditions to Obligations of Purchaser. The obligations of
Purchaser under this Agreement to purchase the Shares are subject to the
fulfillment and satisfaction of each and every of the following conditions on or
prior to the Closing Date, any or all of which may be waived in writing in whole
or in part by Purchaser:
(a) The representations and warranties made by RailCom herein
shall be true and correct at the time of Closing as though they were made at
that time. In the event of any breach of the preceding sentence known to
Purchaser at Closing, unless otherwise agreed by the parties, Purchaser's sole
recourse and remedy against RailCom shall be either (1) to waive the breach and
close the transactions herein contemplated, or (2) to terminate this Agreement,
in either of which events RailCom shall have no further liability or obligations
hereunder.
(b) RailCom shall have performed and complied with all
covenants, agreements and conditions required by this Agreement to be performed
or complied with prior to or on the Closing Date.
(c) RailCom shall have delivered to Purchaser duly adopted
resolutions of the Board of Directors of RailCom, certified by the secretary or
an assistant secretary of RailCom, dated the Closing Date, authorizing and
approving the execution of this Agreement by RailCom and all other actions
necessary to enable RailCom to comply with the terms of this Agreement.
(d) No legal action shall have been commenced by any Person
seeking to enjoin or prohibit the transactions contemplated hereby.
(e) The CSX Purchase Agreement shall not have been modified
(except for any modification to which Purchaser has consented in writing).
(f) CSX shall have consented to RailCom's transfer of the
Purchased Assets as contemplated by
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this Agreement, in writing in an instrument or instruments reasonably
satisfactory to Purchaser.
13. Conditions to Obligations of RailCom. The obligations of RailCom
under this Agreement are subject to the fulfillment and satisfaction of each and
every of the following conditions on or prior to the Closing Date, any or all of
which may be waived in writing in whole or in part by RailCom:
(a) The representations and warranties made by Purchaser
herein shall be true and correct at the time of Closing as though they were made
at that time.
(b) Purchaser shall have performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with by Purchaser prior to or on the Closing Date.
(c) Purchaser shall have delivered to RailCom duly adopted
resolutions of the Board of Directors of Purchaser, certified by the secretary
or an assistant secretary of Purchaser, dated the Closing Date, authorizing and
approving the execution of this Agreement by Purchaser and all other actions
necessary to enable Purchaser to comply with the terms of this Agreement.
(d) No legal action shall have been commenced by any Person
seeking to enjoin or prohibit the transactions contemplated hereby.
(e) CSX shall have consented to RailCom's transfer of the
Purchased Assets as contemplated by this Agreement and shall have agreed to
release RailCom from all obligations and liabilities of RailCom under the CSX
Purchase Agreement, in writing in an instrument or instruments reasonably
satisfactory to RailCom.
14. Miscellaneous.
(a) Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their successors and
assigns. Notwithstanding anything in this Agreement to the contrary, neither
this Agreement nor any rights or benefits of Purchaser hereunder may be assigned
by Purchaser.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, without reference
to its conflicts of laws principles.
(c) Survival. All representations, warranties, covenants and
agreements made by the parties in this Agreement and pursuant to the terms
hereof shall survive the Closing (except to the extent the damaged party knew of
any misrepresentation or breach thereof at the time of the Closing) and continue
in full force and effect forever thereafter (subject to any applicable statutes
of limitations).
(d) Limitation of Liability. RailCom shall have no liability
in excess of amounts received by it hereunder for any claims, actions, suits,
demands, assessments, judgments, losses, damages, liabilities, costs and
expenses suffered or incurred by Purchaser by reason of or arising out of the
breach by RailCom of any representation, warranty, covenant or agreement
hereunder or any indemnity obligation hereunder.
(e) Headings; Including. The section and paragraph headings in
this Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement. "Including" means including
without limitation.
(f) Gender. Where the context requires, the use of any gender
shall include any and all genders.
(g) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same instrument.
(h) Severability. If any term or provision in this Agreement
is held to be invalid, void, illegal or
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unenforceable in any respect, the Agreement shall not fail, but shall be deemed
amended to delete the void or unenforceable term or provision, and the remainder
of this Agreement shall be enforceable in accordance with its terms and shall
not in any way be affected or impaired thereby.
(i) Time of Performance. Time is of the essence.
(j) Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter. This Agreement may be modified only by a written instrument
signed by each of the parties hereto.
EXECUTED, under seal, as of the date first above written.
[Signatures appear on following page]
RAILCOM:
RAILCOM, LTD.
By: /S/ Wilds L. Pierce
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Name:
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Title: President
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[CORPORATE SEAL]
PURCHASER:
OUTDOOR SYSTEMS, INC.
By: /S/ William S. Levine
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Name:
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Title: Chairman
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[CORPORATE SEAL]
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