PURCHASE AGREEMENT
THIS AGREEMENT is hereby made this, January 4, 1999 by and between Big Tex
Advertising, Inc., a Texas corporation ("Big Tex" or the "Company"or "SELLER"),
Lawrence J. Link, individually, and John Roy Terrell, individually, shareholders
of Big Tex ("Shareholder"), and Bowlin Outdoor Advertising & Travel Centers
Incorporated, a Nevada corporation ("BOWLIN").
Purpose of Agreement
Bowlin desires to purchase and Big Tex desires to sell certain tangible and
intangible assets that comprise a portion of Big Tex's business known as "Big
Tex Advertising, Inc." Therefore, in consideration of the premises and of the
mutual representations, warranties and covenants herein contained, the parties
hereby agree as follows:
Terms and Conditions
Purchase Price
The purchase price shall be One Million Five Hundred Thousand and No/100 Dollars
($1,500,000.00).
In addition to the amount specified above, at closing an adjustment of the
purchase price listed above shall be made for:
(a) an amount equal to the amount of any prepaid rents, leases, permits,
paper, vinyls or other items, as specified in attached in Exhibit B, C, D,
E, and F and incorporated for all purposes herein; and
(b) an amount equal to the amount of prepaid leases and permits effective
after January 4, 1999 paid by Big Tex on December 31, 1998 in the amount of
$2,340.00.
The purchase price, and payments noted above, shall be the sole considerations
paid by BOWLIN under this agreement.
Date of Closing
The parties contemplate that Closing shall take place on January 4, 1999.
If Closing does not occur by that date, it will occur as soon thereafter as
Bowlin is able to complete its due diligence investigation. The parties
agree that Bowlin's obligation to complete this purchase is contingent upon
Bowlin being satisfied, in its sole discretion, that all representations
made to it concerning Big Tex's assets are true; that the financial
condition, books, and accounts of Big Tex are sound; that the land leases,
outdoor advertising permits and advertising contracts are of satisfactory
condition to Bowlin; and that the value of the assets being transferred is
not less than the purchase price.
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Transfer of Assets
At closing, SELLER will sell, transfer, assign, convey and deliver to BOWLIN
free and clear of any liens, debts, or encumbrances, save and except any liens
or encumbrances affecting the underlying fee title estate on the real property
subject of the land leases and/or easements for the sign sites, and BOWLIN will
purchase, accept and acquire from SELLER all of the Assets listed in Exhibit A
attached hereto and incorporated for all purposes herein.
Instruments of Transfer
(a) Big Tex and Shareholder's Deliveries. At the closing, Big Tex shall
deliver to Bowlin:
i. A bill of sale transferring to Bowlin title to the Assets as
provided herein, in form and substance acceptable to Bowlin;
ii. A ten (10) year non-competition agreement for Lawrence J. Link,
John Roy Terrell and Morris Duree. (See attached Exhibit G1, G2
and G3);
iii. Letter(s) from Big Tex and Shareholder to the Texas Department of
Transportation regarding transfer of the applicable outdoor
advertising permits from Shareholder to Bowlin in the form of
attached Exhibit E;
iv. Assignment of land lease agreements pertinent to sign sites
located on property owned by third parties (See attached Exhibit
F);
v. Such other bills of sale, titles and other instruments of
assignment, transfer and conveyance as Bowlin shall reasonably
request, in recordable form, where appropriate, and properly
executed, evidenced and notarized where appropriate in such form
as shall be necessary or appropriate to vest in Buyer good title
to the Assets.
vi. A Corporate resolution signed by Big Tex and Shareholder
authorizing Lawrence J. Link to act on behalf of the corporation
and sell assets thereof.
(b) Bowlin's Deliveries. At the closing, Bowlin shall deliver to Big Tex:
i. A wire transfer for the purchase price as specified herein;
ii. Checks in an amount sufficient to pay the net amount due for
items listed in Exhibit B, C, D, E F and H and in Purchase Price
(b) listed above;
(c) Other Transfer Instruments. Following the Closing, at the request of
Bowlin, Big Tex shall deliver any further Instruments and take all
reasonable action as may be necessary or appropriate to vest in Bowlin
all of Big Tex's title to the assets.
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No Assumption of Liabilities
It is expressly understood and agreed by the parties hereto that Bowlin
assumes no debts, liabilities (including tax liabilities) or obligations
(contractual or otherwise) of Big Tex or Shareholder or any other debts,
liabilities or obligations related to the conduct of Big Tex's business.
Representations and Warranties
Big Tex and Shareholder represent and warrant to Bowlin as of the date
hereof and on the closing date as follows (all representations and
warranties being joint and several):
(a) Authority. Big Tex has the legal authority to sell, transfer, and
deliver to Bowlin the tangible and intangible assets of the business
known as "Big Tex Advertising Inc."
(b) Title. Big Tex has good and marketable title to all properties, assets
and leasehold estates, real and personal, tangible and intangible, to
be transferred pursuant to this Agreement subject to no mortgage,
pledge, lien, conditional sales agreement, encumbrance or charge.
(c) Insurance. Big Tex carries insurance, which it believes to be adequate
in character and amount, with reputable insurers in respect of its
properties, assets, and business and such insurance policies are still
in full force and effect, and shall be in effect without interruption
until closing has occurred.
(d) Violations, Suits, Claims, etc. Big Tex is not in default under any
law or regulation, or under any order of any court or federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality wherever located, and there are (1) no
claims, actions, suits or proceedings instituted or filed and (2) no
claims actions, suits or proceedings threatened presently or which in
the future may be threatened or asserted against or affecting Big Tex
at law or in equity, or before or by any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality wherever located, and (3) there are no potential
claims, demands, liens, encumbrances, or debts with regard to the
assets that are the subject of this sale or that may create for Bowlin
any environmental or regulatory liability.
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(e) Tax Returns. Big Tex has filed all requisite federal, state and other
tax returns due for all fiscal periods ended on or before the date of
this agreement. There are no claims against Big Tex for federal, state
or other taxes for any period or periods to and including the date of
this agreement, the amounts shown as provisions for taxes on the
financial statements of Big Tex as of the date of this agreement
delivered to Bowlin are sufficient for the payment of all taxes of all
kinds for all fiscal periods ended on or before that date.
(f) Sole Shareholder. Shareholders are the sole owners of all issued and
outstanding capital stock of the Company, and no other person has any
right to acquire shares of capital stock of the Company.
(g) Organization, Good Standing, Power, etc. Big Tex (a) is a corporation
duly organized, validly existing and in good standing under the laws
of the State of Texas; and (b) has the requisite power and authority
to own, lease and operate its properties and to carry on its business
as currently conducted.
(h) Authorizations and Enforceability. Big Tex has all requisite power and
authority to execute, deliver and perform this Agreement and the other
agreements and instruments delivered pursuant hereto and to consummate
the transactions contemplated hereby. This Agreement and the other
agreements and instruments delivered pursuant hereto have been duly
and validly authorized, executed and delivered by Big Tex and
constitutes the valid and binding obligations of Big Tex, fully
enforceable in accordance with their terms.
(i) Effect of Agreement. The execution, delivery and performance of this
Agreement by Big Tex and Shareholder and the consummation of the
transactions contemplated hereby will not, with or without the giving
of notice or the lapse of time, or both: (a) violate any material
provision of law, statute, rule or regulation to which Company is
subject; (b) violate any judgment, order, writ or decree of any court,
arbitrator or governmental agency applicable to Company; or (c) result
in a material breach of or material conflict with any term, covenant,
condition or provision of, result in the modification or termination
of, constitute a material default under, or result in the creation or
imposition of, any lien, security interest, charge or encumbrance upon
any of the Assets pursuant to any charter, bylaw, commitment, contract
or other agreement or instrument, to which Company is a party or by
which any of its Assets is bound.
(j) Permits, Licenses, Compliance with Applicable Laws and Court Orders.
Company has all requisite power and authority, and all permits,
licenses and approvals of governmental and administrative authorities,
to own, lease and operate its properties and to carry on its business
as presently conducted; all such permits, licenses and approvals
material to the conduct of the business of Company are in full force
and effect. Company's conduct of its business does not materially
violate or infringe any applicable law, statute, ordinance or
regulation. Company is not in default in any respect under any
executive, legislative, judicial, administrative or private (such as
arbitration) ruling, order, writ, injunction or decree.
(k) Financial Information. All financial information relating to the
Assets or the business and provided to Bowlin by Big Tex have been
prepared from the books and records of seller in accordance with
generally accepted accounting principles and fairly and accurately
present the financial condition of Big Tex and the business relating
to the Assets as of the date of such information.
(l) Absence of Undisclosed Liabilities. Big Tex has no liabilities other
than those that are expressly disclosed in the financial information
provided to Bowlin. Between the date of this Agreement and the
Closing, there will be no material change in the financial position of
Big Tex.
(m) Agreements, Plans, Arrangements, etc. Except as set forth in Exhibit A
hereto, Company is not a party to, nor is Company or any of the Assets
bound or affected by, any oral or written:
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(1) lease agreement (whether as lessor or lessee) relating to real or
personal property;
(2) license agreement, assignment or other contract (whether as
licensor or licensee, assignor or assignee) relating to
trademarks, trade names, patents, copyrights (or applications
therefor);
(3) agreement with any business broker with respect to this
transaction;
(4) agreement with any supplier, distributor, franchisor, dealer,
sales agent or representative;
(5) joint venture or partnership agreement with any other person;
(6) agreement with any bank, factor, finance company or similar
organization regarding the financing of accounts receivable or
other extensions of credit;
(7) agreement granting any lien, security interest or mortgage on any
Asset or other property of Company, including, without
limitation, any factoring agreement for the assignment of
accounts receivable;
(8) agreement for the Construction or modification of any Asset or
leasehold interest of Company;
(9) agreements with advertisers for lease of sign structures;
(10) agreement with any employee, consultant, or independent
contractor providing personal services to Company.
(n) Acquisition Agreements. There are no agreements relating to the
acquisition of the stock, business or Assets of Company to which
Company is a party, other than this Agreement.
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(o) Status of Real Property. Neither Company nor Shareholder has received
any notice of noncompliance with respect to real property on which any
of the Assets are located (the "Real Property") with any applicable
statutes, laws, codes, ordinances, regulations or requirements
relating to fire, safety, health or environmental matters or
noncompliance with any covenants, conditions and restrictions (whether
or not of record) or local, municipal, regional, state or federal
requirements or regulations. To the best of Company's and
Shareholder's knowledge, there has been no release or discharge on or
under the Real Property by the Company of any toxic or hazardous
substance, material or waste which is or has been regulated by any
governmental or quasi-governmental authority or is or has been listed
as toxic or hazardous under any applicable local, state or federal
law. To the best of the Company's and Shareholder's knowledge, there
are no subsurface or other conditions related to toxic or hazardous
waste affecting the Real Property or any portion or component thereof,
and there are no underground storage tanks located on the Real
Property.
(p) Defects. To the best of Company's and Shareholder's knowledge, there
are no structural or operational defects in any of the Assets.
(q) Leases Current. All obligations of the Company under all existing
lease agreements which are required by such agreements to have been
performed by Company have been fulfilled by the Company, including the
payment by the Company of all lease payments due and payable through
the date hereof.
Bowlin represents and warrants to Big Tex and Shareholder as of the date hereof
and the Closing date as follows:
(a) Organization. Bowlin is a validly existing corporation organized under
the laws of the State of Nevada and has all requisite corporate power
and authority to own, operate and lease its properties and assets.
(b) Authority. Bowlin has full corporate power, authority and legal rights
to execute and deliver, and to perform its obligations under this
Agreement, and has taken all necessary action to authorize the
purchase hereunder on the terms and conditions of this Agreement and
to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed by Bowlin, and
constitutes a legal, valid and binding obligation of Bowlin
enforceable in accordance with its terms.
(c) Compliance with Instruments, Consents, Adverse Agreements. Neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will conflict with or result in any
violation of or constitute a default under the articles of
incorporation or the by-laws of Bowlin, or any Law, Instrument, lien
or other Contract by which Bowlin is bound. Bowlin is not a party or
subject to any Contract, or subject to any article or other corporate
restriction or any Law which materially and adversely affect the
business operation, prospects, properties, assets or condition,
financial or otherwise, of Bowlin.
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(d) Litigation. There is no suit, action or litigation, administrative,
arbitration or other proceeding or governmental investigation pending
or, to the knowledge of Bowlin, threatened which might, severally or
in the aggregate materially and adversely affect the financial
condition or prospects of Bowlin or Bowlin's ability to acquire the
Assets as contemplated by this Agreement.
(e) Brokers. All negotiations relative to the Agreement and the
transactions contemplated hereby have been carried on by Bowlin is
such manner without giving rise to any valid claim against Big Tex for
a finder's fee, brokerage commission or other like payment.
Covenants
Between the date of this agreement and the closing date:
(a) Big Tex's officers will cause Big Tex to
(1) Carry on its outdoor advertising business in substantially the
same manner as it has heretofore and not introduce any material
new method of management, operation or accounting;
(2) Maintain their properties and facilities in as good working order
and condition as at present, ordinary wear and tear excepted:
(3) Perform all material obligations under agreements relating to or
affecting its assets, properties and rights;
(4) Keep in full force and effect present insurance policies or other
comparable insurance coverage; and
(5) Use its best efforts to maintain and preserve its assets intact,
retain its present employees and maintain its relationships with
suppliers, customers and others having business relations with
it.
(b) Big Tex's officers will not permit Big Tex without the prior written
consent of Bowlin to:
(1) Enter into any contract or commitment or incur or agree to incur
any liability or make any capital expenditures except in the
normal course of business;
(2) Create, assume or permit to exist any mortgage, pledge or other
lien or encumbrance upon any assets or properties transferred
under this agreement, whether now owned or hereafter acquired; or
(3) Sell, assign, lease or otherwise transfer or dispose of any
property or equipment subject to this agreement except in the
normal course of business.
Competition
Simultaneously with the execution of this Agreement, Lawrence J. Link and
John Roy Terrell will execute and deliver to Bowlin a Non-Competition
Agreement in the form and on the terms as set forth in Exhibit G1, G2 and
G3 attached hereto and incorporated by reference herein for all purposes.
Conditions to Bowlin's Obligations
The obligations of Bowlin hereunder are subject to the fulfillment, at or
prior to the Closing, of each of the following conditions, any or all of
which may be waived in writing by Bowlin, in its sole discretion:
(a) Accuracy of Representations and Warranties. Each of the
representations and warranties of Big Tex and Shareholder contained in
this Agreement shall be true on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date,
except as affected by transactions contemplated hereby.
(b) Performance of Covenants. Big Tex shall have performed and complied
with all covenants, obligations and agreements to be performed or
complied with by it on or before the Closing Date pursuant to this
Agreement.
(c) No Litigation or Claims. No claim, action, suit, proceeding,
arbitration, investigation or hearing or notice of hearing shall be
pending or threatened against or affecting Big Tex which: (a) might
foreseeably result, or has resulted, either in an action to enjoin or
prevent or delay the consummation of the transactions contemplated by
this Agreement or in such an injunction; or (b) could, in the
determination of Bowlin, have an adverse effect on the assets to be
transferred hereunder.
(d) No Violations. No material violation of Big Tex shall exist, or be
alleged by any governmental authority to exist, of any law, statute,
ordinance or regulation, the enforcement of which would adversely
affect the financial condition, results of operations, properties or
business of Big Tex.
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(e) Consents and Assignments. Big Tex shall have delivered to Bowlin all
consents and assignments of all persons and entities necessary for the
performance of the transactions contemplated by this Agreement,
including the transfer of all assets and the assignment of leases, and
Big Tex shall have obtained the consents of: any lender to Big Tex,
or, in the alternative, the release of all liens held by such lender,
with respect to the sale and transfer of the assets; and any other
consents of third parties deemed necessary or appropriate by Bowlin.
(f) Certificate. Bowlin shall have received a certificate signed by Big
Tex and Shareholder, dated the Closing Date, satisfactory in form and
substance to Bowlin and its counsel, certifying as to the fulfillment
of the conditions specified above.
(g) Satisfactory Completion of Due Diligence. Bowlin shall be satisfied in
its sole discretion with the content of the final Exhibits hereto and
other related documents for closing and shall otherwise be satisfied
in its sole discretion with the results of its due diligence review,
including the right to terminate this agreement with no penalty in the
event that the land leases, outdoor advertising permits and
advertising contracts are not of satisfactory condition to Bowlin.
Indemnification
(a) Indemnification of Bowlin by Big Tex and Shareholder. Big Tex and
Shareholder, jointly and severally, agree to indemnify and hold harmless
Bowlin and any person claiming by or through it or its successors and
assigns from, against and in respect of any and all losses, claims, and
liabilities incurred by or asserted against Bowlin or its successors or
assigns in connection with;
(i) any breach of any covenant or agreement made by Big Tex or
Shareholder in this Agreement;
(ii) any liability, debt or obligation of Big Tex or lien or
encumbrance on the Assets or
(iii) any claim arising out of the use, sale or operation of the
Assets by Big Tex or Shareholder and/or the operation of the
business of Big Tex or Shareholder prior to the Closing.
(b) Indemnification of Big Tex and Shareholder by Bowlin. Bowlin agrees to
indemnify and hold harmless Big Tex and Shareholder and any person claiming
by or through it or its successors and assigns from, against and in respect
of any and all losses, claims, and liabilities incurred by or asserted
against Big Tex or Shareholder or its successors or assigns in connection
with:
(i) any breach of any representation or warranty of Bowlin;
(ii) any breach of any covenant or agreement made by Bowlin in this
Agreement;
(iii) any act or omission of Bowlin after Closing, and
(iv) any claim arising out of the use, sale or operation of the Assets
by Bowlin and/or the operation of the business by Bowlin after
Closing.
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(c) IF THE EVENT GIVING RISE TO SUCH INDEMNIFICATION OBLIGATION ARISES OUT
OF THE JOINT OR CONCURRENT NEGLIGENCE OF THE PERSON TO BE INDEMNIFIED
AND THE INDEMNIFYING PARTY, THE PERSON TO BE INDEMNIFIED SHALL BE
INDEMNIFIED TO THE EXTENT THAT THE INDEMNITOR'S NEGLIGENCE CAUSED SUCH
EVENT. IT IS THE INTENT OF THE PARTIES THAT BUYER SHALL BE ENTITLED TO
COMPARATIVE INDEMNIFICATION.
Taxes
Real Estate and personal property taxes, if any, assessed or to be assessed
for the current calendar or fiscal year, regardless of when payable, shall
be prorated between Bowlin and Big Tex as of the closing date.
Risk of Loss
The risk of loss or destruction of or damage to the assets transferred
hereunder, including inventory, fixtures, equipment and real property from
any cause whatsoever at all times on or subsequent to the execution of this
document but before closing shall be borne by Big Tex.
Bowlin's Remedies
Bowlin shall be entitled, without limitation, to all incidental and
consequential damages resulting from a breach of any warranty or
representation or covenant of Big Tex or Shareholder made herein including,
but not limited to, all costs of litigation incurred, including reasonable
attorney's fees.
Dispute Resolution
(a) In the event of any dispute arising from this Agreement, the Parties
agree to attempt a solution through nonbinding mediation conducted by
a mutually agreed mediator. While the mediation shall be nonbinding in
all respects (except agreements in settlement of the dispute
negotiated by the Parties), each Party agrees that:
(i) it shall appear when directed by the mediator, be fully prepared
to work towards a resolution of the dispute, and participate in
good faith in the mediation towards a resolution of all disputed
issues or concerns; and
(ii) the duty to mediate in good faith shall be specifically
enforceable by the courts of Texas.
(b) Any questions, claims, disputes, or litigation arising from or related
to this Agreement are governed by the laws of the state of Texas
without regard to the principles of conflicts of law.
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(c) The Parties agree that Texas has a substantial relationship to this
transaction, and that this Agreement is performable in Hood County,
Texas. Each Party consents to personal jurisdiction in the courts
thereof, and any action or suit arising from or related to this
Agreement shall only be brought by the Parties in any federal or state
court with appropriate jurisdiction over the subject matter
established or sitting in the state of Texas located in Hood County,
Texas.
Miscellaneous
(a) Expenses. Except as otherwise provided herein, whether or not the
transactions contemplated by this Agreement are consummated, each
party hereto shall pay its own expenses and the fees and expenses of
its counsel and accountants and other experts. Furthermore, Bowlin
shall be responsible for payment to the business broker retained by
it.
(b) Survival of Representations and Warranties. The representations,
warranties, covenants and agreements set forth in this Agreement and
any other written representation in any ancillary document shall
survive the Closing.
(c) Waivers. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
(d) Binding Effect; Benefits. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
(e) Notices. All notices, requests, demands and other communications which
are required to be or may be given under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered in
person or transmitted by fax or five (5) days after deposit in the
U.S. mails by certified or registered first class mail, postage
prepaid, return receipt requested, addressed to the party to whom the
same is so given or made.
if to Big Tex or Shareholder to:
Lawrence J. Link
PO Box 5101
Granbury, Texas 76049
if to Bowlin to:
Bowlin Outdoor Advertising and Travel Centers Incorporated
150 Louisiana Blvd. N.E.
Albuquerque, New Mexico 87108
Attention: Michael L. Bowlin, President
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or to such other address or Fax Number as any party may designate by giving
notice to the other parties hereto.
(f) Further Assurances. The Company and Shareholder shall, from time
to time at or after the Closing, at the request of Bowlin, and
without further consideration, execute and deliver such other
instruments and take such other actions as may be required to
confer to Bowlin and its assignees the benefits contemplated by
this Agreement.
(g) Entire Agreement. This document contains the entire agreement
between the parties and supersedes all prior agreements between
the parties, if any, written or oral, with respect to the subject
matter thereof.
AGREED and ACCEPTED:
BOWLIN OUTDOOR ADVERTISING & TRAVEL CENTERS INCORPORATED
By:_/s/ C. C.Bess
C. C. Bess, Executive Vice President
BIG TEX ADVERTISING
By: /s/ Lawrence J. Link
Lawrence J. Link
President
By: /s/ Lawrence J. Link
Lawrence J. Link, Individually
By: /s/ John Roy Terrell
John Roy Terrell
Vice President
By: /s/ John Roy Terrell
John Roy Terrell, Individually
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Acknowledgment for Corporations
STATE OF TEXAS )
) ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ___ day of
__________________, 199___, by C. C. Bess, Executive Vice President of BOWLIN
Outdoor Advertising & Travel Centers Incorporated, a Nevada Corporation, on
behalf of the corporation.
--------------------------------
Notary Public
My commission expires:
- ----------------------
STATE OF TEXAS )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ___ day of
__________________, 199__ by Lawrence J. Link, President of Bidg Tex
Advertising, Inc., a Texas Corporation, on behalf of the corporation..
--------------------------------
Notary Public
My commission expires:
- ----------------------
STATE OF TEXAS )
) ss
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ___ day of
_________________, 199__ by John Roy Terrell, Vice President of Big Tex
Advertising, Inc. a Texas Corporation, on behalf of the corporation..
--------------------------------
Notary Public
My commission expires:
- ----------------------
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Acknowledgment for Individuals
STATE OF TEXAS )
)ss.
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this ___ day of
________________, 199__ by Lawrence J. Link, Individually.
--------------------------------
Notary Public
My commission expires:
_______________________
STATE OF TEXAS )
)ss.
COUNTY OF _____________
The foregoing instrument was acknowledged before me this ___ day of
_________________, 199__ by John Roy Terrell, Individually.
--------------------------------
Notary Public
My commission expires:
________________________