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EXHIBIT 10.77
PURCHASE AGREEMENT
This Purchase Agreement ("Agreement") is made and entered into this
17th day of June, 1994, between WHITE BROADCASTING CORPORATION, a Michigan
corporation with an address at 685 East Long Lake, Bloomfield Hills, Michigan
48304 ("Seller"), and TROPIC OF KEY WEST, INC., a Nevada corporation with an
address at 3366 Riverside Drive, Suite 200, Columbus, Ohio 43221 ("Buyer").
Seller is the licensee, owner and operator of Broadcast Station
WIIS-FM, 107.1 mhz, Key West, Florida (the "Station"). Seller desires to sell
and assign and Buyer desires to purchase and acquire substantially all of the
property and assets used or held for use in the operation of the Station (the
"Transaction"). The parties acknowledge that the license issued by the Federal
Communications Commission (the "Commission" or "FCC") for the operation of the
Station may not be assigned without the prior written consent of the
Commission.
Accordingly, in consideration of the foregoing and of the mutual
promises, covenants, and conditions set forth below, the parties agree as
follows:
1. ASSETS TO BE CONVEYED. On the Closing Date (as defined
below), Seller shall sell, assign, transfer, and deliver to Buyer and Buyer
shall purchase from Seller, all of the assets used or held for used in the
operation of the Station, other than Excluded Assets (as defined below) (the
"Assets"):
1.1 LICENSES and AUTHORIZATIONS. All licenses,
permits, permissions, and other authorizations issued for the operation of the
Station by the Commission and other governmental agencies, including, but not
limited to, those listed on Schedule 1.1 and the right to use the Stations'
call letters (the "Station Licenses"), and all applications for modification,
extension, or renewal thereof, and any pending applications for any new
licenses, permits, permissions, authorizations granted or authorizations
pending on the Closing Date, including, but not limited to, those listed on
Schedule 1.1 (the "Station Applications").
1.2 STATION EQUIPMENT. All the fixed and tangible
personal property owned by Seller and used or useful in the operation of the
Station including, but not limited to, the transmitters, towers and studio
equipment and the property listed on Schedule 1.2 together with any
replacements, improvements, or additions thereto made between the date hereof
and the Closing Date (the "Station Equipment").
1.3 CONTRACTS. All rights of Seller for the
benefit of the Station including, without limitation, those rights under: (a)
all agreements, contracts, or leases described on Schedule 1.3; (b) such other
contracts (other than for the sale of time on the Station), agreements, or
leases entered into (i) with the written consent of Buyer, or (ii) in the
ordinary course of business and consistent with past practice, between the date
of this Agreement and the Closing Date, that do not, in the aggregate, impose
obligations in excess of Two Thousand Dollars ($2,000) on Buyer; (the
contracts, agreements and leases described in clauses (a) and (b) are
collectively referred to as the "Operating Contracts"); (c) all contracts for
the sale of time of the Stations for cash (i) at rates substantially in
accordance with the Station's past practices with a
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remaining term at Closing of eleven (11) months or less or (ii) entered into
after the date hereof with the written consent of Buyer ("Sales Agreements");
(d) all contracts in effect as of the date hereof for the sale of time on the
Station in exchange for merchandise or services used or useful for the benefit
of the Station to the extent that such contracts (i) were entered into in the
ordinary course of business, (ii) are preemptible for cash time sales,
(iii) obligate the Buyer to provide advertising time only on a "run of
schedule" basis and (iv) have a remaining term of eleven (11) months or less
("Trade Agreements"); (e) all contracts for the sale of time on the Station
in exchange for programming set forth on Schedule 1.3 or entered into after
the date hereof with the written consent of Buyer ("Barter Agreements"); and
(f) all Trade Agreements entered into after the date hereof with the written
consent of Buyer. In the event that Seller submits any Operating Contract,
Sales Agreement, Trade Agreement or Barter Agreement (together, the
"Contracts") to Buyer for its consent, such consent shall be deemed to have
been given if Buyer does not notify Seller of its rejection of the Contract
within ten (10) days after its receipt of Seller's written request for such
consent. In the event that the Trade Agreements and Barter Agreements to be
assumed have a negative Trade Balance (as defined below) in excess of Five
Thousand Dollars ($5,000), Buyer will receive credit against the Purchase
Price for such excess amount (as defined in Section 3). "Trade Balance"
means the difference between the aggregate value of time owed pursuant to
the Trade Agreements and Barter Agreements (based upon the rates for cash
sales on the Stations in effect on the date of this Agreement) and the
aggregate value of goods and services to be received (after the Closing Date)
pursuant to the Trade Agreements and Barter Agreements. The Trade Balance
is "negative" if the value of time owed subsequent to the Closing Date
exceeds the value of goods and services to be received subsequent to the
Closing Date.
1.4 REAL PROPERTY. All of Seller's right, title,
and interest in the real property used in the operation of the Station and
owned, leased, or licensed by Seller or its affiliate, as described in Schedule
1.4 (together, the "Real Property").
1.5 CALL SIGNS, PROMOTIONAL MATERIALS AND
INTANGIBLES. All of Seller's or its affiliates' rights in the call signs,
copyrights, trademarks, tradenames, slogans, logos, service marks, computer
software (if any), magnetic media, data processing files, systems and programs,
business lists, trade secrets, sales and operating plans, all goodwill of the
Station and other similar intangible property rights used or held for use in
the operation of the Station, including but not limited to the intangible
property identified on Schedule 1.5 (the "Intangible Property").
1.6 RECORDS. All records, including but not
limited to all books of account, customer lists, supplier lists,
non-confidential employee personnel files, local public records file materials,
engineering data, logs, programming records, consultants' reports, ratings
reports, budgets, financial reports and projections, and sales, operating and
business plans, relating to or used in the operation of the Station or
necessary or desirable to show compliance with any law or regulation applicable
to the Station or the operation of the Station and not pertaining solely to
Seller's internal corporate affairs (the "Station Records"); it being
understood that Seller shall have the right to retain copies of any such
records.
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1.7 EXCLUDED ASSETS. It is understood and agreed
that the following assets shall not be among the Assets purchased pursuant to
this Agreement: (i) Seller's cash and cash equivalents on hand or in banks,
certificates of deposit, money market funds, and securities; (ii) Seller's
accounts receivable; (iii) the articles of incorporation, bylaws, minute books,
stock transfer records and all other corporate books of Seller; (iv) sales,
income and other tax refunds and claim therefore relating to the period prior
to Closing; (v) life insurance policies; (vi) claims against third parties,
based on activities occurring prior to Closing, other than those claims
specifically conveyed or specifically related to Assets which are conveyed;
(vii) claims against officers, directors and affiliates of Seller; and (viii)
assets listed in Schedule 1.7.
2. ASSUMPTION OF LIABILITIES. Buyer shall not assume any of
Seller's liabilities, except liabilities which accrue after the closing of the
transactions contemplated herein (the "Closing") under the Contracts to be
assigned to Buyer pursuant to (and as limited by) Section 1.3 above. If any
Contract requires the consent of third parties for assignment, but (i) such
consent has not been obtained as of the Closing Date, and (ii) in the case of
any consent required under any contract designated a "Material Contract" on
Schedule 1.3 ("Required Consent"), and Buyer waives such condition precedent to
the Closing in its sole discretion, then Buyer shall assume Seller's
obligations under such Contract only for the period after Closing during which
Buyer receives the benefits to which Seller is currently entitled under such
Contract (unless consent is subsequently obtained and such delay has not
prejudiced Buyer, and unless the failure of Buyer to receive benefits under
such Contract is due to Buyer's failure to perform Seller's obligations
thereunder after Closing).
3. PURCHASE PRICE AND PAYMENT.
3.1 PURCHASE PRICE. The purchase price for the
assets shall be Three Hundred Twenty-Five Thousand Dollars ($325,000) (the
"Asset Purchase Price"). The Purchase Price shall be payable as follows:
3.2 ESCROW DEPOSIT. Upon the execution of this
Agreement, Buyer will place the sum of Twenty-Five Thousand Dollars ($25,000),
(the "Escrow Deposit"), in an escrow account in Barnett Bank of Tampa, Florida
under the control of Jorgenson Broadcast Brokerage (the "Escrow Agent") to be
held in escrow pending the Closing or the termination of the Purchase
Agreement.
3.3 CASH AT CLOSING. At Closing, Buyer will pay to
Seller by certified bank check or wire transfer of federal funds, pursuant to
wire instructions that Seller shall deliver to Buyer prior to Closing, (i) the
Purchase Price, (ii) less the Escrow Deposit, (iii) plus or minus any
adjustments as set forth in Section 4 hereof or elsewhere in this Agreement.
3.4 ALLOCATION. The Asset Purchase Price shall be
allocated among the assets in accordance with the amounts as set forth on
Schedule 3.4. Seller and Buyer agree (i) to
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jointly complete and separately file Form 8594 with their federal income tax
return for the tax year in which the Closing occurs, and (ii) that neither
Seller nor Buyer will take a position on any income, transfer or gains tax
return, before any governmental agency charged with the collection of any such
tax or in any judicial proceeding that is an any manner inconsistent with the
terms of any such allocation without the written consent of the other.
4. PRORATIONS AND ADJUSTMENTS. The operation of the Station
and the income and normal operating expenses, including without limitation
assumed liabilities and prepaid expenses, attributable thereto through the date
of the Closing Date (the "Adjustment Date") shall be for the account of Seller
and thereafter for the account of Buyer. Expenses for goods or services
received both before and after the Adjustment Date, power and utilities
charges, frequency discounts, prepaid cash time sales agreements, and rents and
similar prepaid and deferred items shall be prorated between Seller and Buyer
as of the Adjustment Date (the "Closing Date Adjustments"). All special
assessments and similar charges or liens imposed against the Real Property, and
Station Equipment in respect of any period of time through the Adjustment Date,
whether payable in installments or otherwise, shall be the responsibility of
Seller, and amounts payable with respect to such special assessments, charges
or liens in respect of any period of time after the Adjustment Date shall be
the responsibility of Buyer, and such charges shall be adjusted as required
hereunder. A final accounting of prorated items shall be made by Buyer with
the cooperation of Seller, and the sum due from one party to the other pursuant
to this Section 4 shall be paid in cash, within sixty (60) days after the
Closing Date.
5. NON-COMPETE AGREEMENT. At Closing, Seller and Buyer,
shall enter into a Non-Compete Agreement substantially in the form as that
attached hereto as Exhibit B (the "Covenant"). The Covenant shall have a
term of four (4) years.
6. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller makes
the following representations and warranties all of which have been relied upon
by Buyer in entering into this Agreement and, except as otherwise specifically
provided, all of which shall be true and correct at Closing.
6.1 ORGANIZATION. Seller is a corporation, validly
existing and in good standing under the laws of State of Michigan, and has full
power and authority to conduct the business as currently conducted and proposed
to be conducted and to enter into and perform this Agreement. The address of
Seller's chief executive offices, all of Seller's additional places of
business, and the locations of all tangible personal property included in the
Assets are listed in Schedule 6.1. Except as set forth in Section 6.1, during
the past five (5) years Seller has not used, nor to the best of Seller's
knowledge has any prior owner of the Station been known by or used, any
corporate, partnership, fictitious or other name in the conduct of the
Station's business or in connection with the use or operation of the Assets.
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6.2 AUTHORIZATION. The execution and delivery of
this Agreement by Seller has been duly authorized by any actions required under
Florida or federal laws. This Agreement has been duly executed by Seller and
delivered to Buyer and constitutes a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms.
6.3 NO BREACH. None of (i) the execution, delivery
and performance of this Agreement by Seller, (ii) the consummation of this
Agreement and all other documents or instruments related thereto or executed in
connection therewith or in contemplation of the transaction hereunder (the
"Transaction"), or (iii) Seller's compliance with the terms and conditions
hereof will, with or without the giving of notice or the lapse of time or both,
conflict with, breach the terms and conditions of, constitute a default under
or violate any judgment, decree, order, or (except as disclosed in Schedule
6.3) any agreement, lease or other instrument to which Seller is a party or by
which Seller is legally bound, or any law, rule, or regulation applicable to
Seller or the operation of the Station.
6.4 STATION LICENSES. The Station Licenses are all
of the licenses, permits, and other authorizations used or necessary to operate
the Station as it is now operated and are validly issued in the name of Seller.
The Station Licenses are in full force and effect, are valid for the balance of
the current license term applicable generally to radio stations licensed to
communities in the state where the Station is located, are unimpaired by any
acts or omissions of Seller, Seller's employees, officers, directors, or
shareholders, and are free and clear of any restrictions which might limit the
full operation of the Station (other than restrictions under the terms of the
licenses themselves). Except as set forth on Schedule 6.4, there are no
applications, proceedings, or complaints pending or, to the knowledge of
Seller, threatened which may have an adverse effect on the business or
operation of the Station (other than rulemaking proceedings that apply to the
radio broadcasting industry generally). Seller is not aware of any reason why
those of the Station Licenses subject to expiration might not be renewed in the
ordinary course based on current FCC rules or of any reason why any of the
Station Licenses might be revoked. The Station is in compliance with the
Commission's policy on exposure to radio frequency radiation. No renewal of
any Station License would constitute a major environmental action under the
rules of the Commission. Access to the Station's transmission facilities is
restricted in accordance with the policies of the Commission.
6.5 STATION APPLICATIONS. All information
contained in any Station Applications (as described on Schedule 1.1 hereto) and
which are pending with the Commission is true, complete and accurate in all
material respects.
6.6 TITLE TO ASSETS. Except as set forth on
Schedule 6.6, Seller has good and marketable title to the Assets, free and
clear of all mortgages, deeds of trust, liens, pledges, collateral assignments,
security interests, leases, easements, covenants, restrictions and encumbrances
or other defects of title ("Encumbrances"). To the knowledge of Seller, all
material Encumbrances against any of the Assets are disclosed on Schedule 6.6
hereto.
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6.7 CONDITION OF EQUIPMENT. The equipment listed
on Schedule 1.2 (the "Station Equipment") is available for use in connection
with the operation of the Station constitutes all of the personal property that
is used or held by the Seller for use by the Station, or necessary to operate
the Station as it is now operated. The Station Equipment is sufficient to
permit the Station to operate in accordance with the Station Licenses and the
rules and regulations of the Commission. To the knowledge of Seller, except
(i) as set forth on Schedule 6.7, (ii) as may be disclosed in the Engineering
Report and (iii) to the extent that the Capital Budget contemplates the repair
or replacement of the Station Equipment, there is no material deficiency in the
Operating Equipment. To the knowledge of Seller, the Engineering Report will
disclose no material deficiency in the Operating Equipment not disclosed on
Schedule 6.7 or to be resolved by expenditures planned in the Capital Budget.
6.8 CONDITIONS OF THE REAL PROPERTY. The Real
Property listed on Schedule 1.4 constitutes all the real property owned or
leased by Seller or others in connection with the operation of the Station as
it is now operated. To the knowledge of Seller, there are no encroachments
upon the Real Property used in the transmitter site (the "Transmitter Site") by
any buildings, structures, or improvements located on adjoining real estate
except to the extent such encroachments do not impair the present use of the
property. Seller has received no notice that utility lines serving the
Transmitter Site passes over the lands of others except where appropriate
easements have been obtained. There are no pending or, to the best of Seller's
knowledge, contemplated condemnation or eminent domain proceedings that may
affect the Real Property. To the knowledge of Seller, Seller's use and
occupancy of the Transmitter Site complies in all material respects with all of
Seller's leasehold obligations and with all regulations, codes, ordinances, and
statutes of all applicable governmental authorities, including without
limitation all sanitary laws and regulations, occupational safety and health
regulations, and electrical codes, but excluding Environmental Laws except as
set forth in Section 8.2.2 of this Agreement and there are no material
structural defects in the buildings, structures, and improvements located on
the Transmitter Site. All towers and other structures on the Real Property and
the Land are painted and/or lighted in accordance with the requirements of the
Station Licenses, the Commission, the Federal Aviation Administration and all
applicable requirements of federal, state and local law. The leased premises
are leased at the rates and for terms ending on the dates shown on Schedule 1.4
pursuant to the agreements described in Schedule 1.4 which are the sole and
complete agreements concerning Seller's use of the leased premises.
6.9 LEASE FOR TOWER AND TRANSMITTER SITE. The
Tower Lease Agreement is in full force and effect, is not subject to any
setoffs and Seller is not in default of any material provision thereof nor has
Seller been notified of any potential event of default thereunder. The Tower
Lease Agreement is assignable to Buyer under its terms or Seller will obtain
any necessary waivers or consents to such assignment. Except as provided in
the Tower Lease Agreement, no consent of any person or entity is required for
the transfer of the Tower Lease by Seller to Buyer.
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6.10 CONTRACTS. The Contracts are assignable to
Buyer without consent, or, if consent of the other contracting party to the
assignment is required, Seller shall use its reasonable best efforts to secure
such consents before the Closing Date. Each Contract is in full force and
effect and is materially unimpaired by any acts or omissions of Seller,
Seller's employees, officers, directors or shareholders. There has not
occurred as to any Material Contract any material default by Seller or any
event that, with the lapse of time or otherwise, could become a material
default by Seller. To the knowledge of Seller, there has not occurred as to
any Material Contract any material default by any other party thereto or any
event that, with the lapse of time or at the election of any person other than
Seller, could become a material default by such party. Those Contracts whose
stated duration extends beyond the Closing Date will, at Closing, be in full
force and effect and will be materially unimpaired by any acts or omissions of
Seller, Seller's employees, officers, directors or shareholders. Seller has
provided to Buyer true and correct copies of all Contracts (other than Sales
Agreements) that are material to the operation of the Station or create
obligations that in the aggregate are material or create aggregate obligations
of more than Two Thousand Dollars ($2,000), as modified to date, and one or
more forms that is representative of the terms of the Sales Agreements now in
effect. The Contracts as amended through the date of this Agreement, will not
be modified without Buyer's written consent (which shall not be unreasonably
withheld, and which shall be deemed given in the event Buyer has not responded
to a written request therefore within ten (10) days). At Closing, Seller shall
provide Buyer with a list showing Trade Agreements and Barter Agreements then
in effect with an analysis of the then-current Trade Balance at no less than
monthly intervals between the date hereof and the Closing Date.
6.11 EMPLOYEES. No employee of the Station is
represented by a union or other collective bargaining unit, no application for
recognition of a collective bargaining unit is now pending before the NLRB with
respect to the Station's employees, and to Seller's knowledge, no concerted
effort to unionize any of the Station's employees is currently in progress.
Except as has been disclosed to Buyer in writing, there are no controversies
pending or, to Seller's knowledge, threatened between Seller and any of the
Station's employees, nor, to Seller's knowledge, are there any facts that could
reasonably result in any such controversy. Seller has no retirement, pension,
profit-sharing, bonuses, severance pay, disability, health, vacation, sick
leave or other employee benefit plans, practices, agreements, or understandings
except as listed or described in Schedule 6.11 (it being understood and
acknowledged that Buyer is not assuming, and shall have no liability with
respect to, any such plans, practices, agreements or understandings).
6.12 LITIGATION. Except as set forth in Schedule
6.12, there is no unsatisfied judgment outstanding, Seller has received no
notice of any litigation, proceeding, claim or investigation of any nature
pending against Seller and, to Seller's knowledge, there is no litigation,
proceeding, claim or investigation of any nature threatened against Seller
which might have an adverse effect on the continued operation of the Station or
impair the value of the Assets or which might have an adverse effect on
Seller's ability to perform in accordance with the terms of this Agreement.
Seller is not aware of any facts that could reasonably result in any such
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proceedings.
6.13 PAYMENT OF TAXES. Seller has, or by the
Closing Date will have, paid and discharged all taxes, assessments, excises and
other levies relating to the Assets, excepting such taxes, assessments, and
other levies as will not be due until after the Closing Date and that are to be
prorated between Seller and Buyer pursuant to Section 4.
6.14 COMPLIANCE WITH LAWS. Except as disclosed on
Schedule 6.14 or in the reports to be delivered to Buyer under this Agreement,
or as may be indicated by the remedial actions to be taken under the Capital
Budget, Seller, to the knowledge of Seller, has complied in all respects with,
and is not in violation of any federal, state, or local laws, regulations, or
orders (other than Environmental Laws) relating to the operation of the
Station. Without limiting the generality of the foregoing:
(a) The Station's transmitting and studio equipment
is operating in accordance with the terms and conditions of the Station
Licenses and all underlying construction permits, and the rules, regulations
and policies of the Commission, including without limitation all regulations
concerning equipment authorization and human exposure to radio frequency
radiation.
(b) Seller has, in the conduct of the Station's
business, complied in all material respects with all applicable laws, rules and
regulations relating to the employment of labor, including those concerning
wages, hours, equal employment opportunity, collective bargaining, pension and
welfare benefit plans, and the payment of Social Security and similar taxes,
and Seller is not liable for any arrearages of wages or any tax penalties due
to any failure to comply with any of the foregoing.
(c) Seller has received no notification from the
Commission that Seller's employment practices fail to comply with the
Commission rules and policies.
(d) All ownership reports, employment reports, tax
returns and other documents required to be filed by Seller with the Commission
or other governmental authorities have been filed. Such items as are required
to be placed in the Station's local public records files have been placed in
such files. All proofs of performance and measurements that are required to be
made by Seller with respect to the Station's transmission facilities have been
completed and filed at the Station. All information contained in the foregoing
documents is true, complete and accurate in all material respects.
(e) To Seller's knowledge, the reports to be
delivered to Buyer under this Agreement will not disclose any noncompliance
with this Section 6.14 except as disclosed on Schedule 6.14 or to the extent
that such non-compliance would be cured by improvements undertaken pursuant to
the Capital Budget.
6.15 INSOLVENCY PROCEEDINGS. Seller is not the
subject of any pending or threatened insolvency proceedings of any character,
including without limitation bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary. Seller
has not made an assignment for the benefit of creditors or taken any action
with a view to or that would constitute a valid basis for the institution of
any such insolvency proceedings. After
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giving effect to the Transaction, Seller will have sufficient capital to carry
on its business and transactions, (ii) will be able to pay its debts as they
mature or become due, and (iii) will own assets the fair value of which will be
greater than the sum of all of its liabilities (including contingent
liabilities) not specifically assumed by Buyer pursuant to the terms of this
Agreement. Seller is not insolvent or will become insolvent as a result of
entering into this Transaction.
6.16 CITIZENSHIP. Seller is not a "foreign person"
as defined in Section 1445(f)(3) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder (the "Code"). On the Closing Date,
Seller will deliver to Buyer affidavits to that effect, verified as true and
sworn to under penalty of perjury by a duly-authorized officer of Seller. The
affidavits shall also set forth Seller' name, address, taxpayer identification
number, and such additional information as may be required to exempt the
Transaction from the withholding provisions of Section 1445 of the Code. Buyer
shall have the right to furnish copies of the affidavit to the Internal Revenue
Service ("IRS").
6.17 PATENTS, TRADEMARKS, COPYRIGHTS. The call sign
and all slogans, logos, copyrights, trademarks, tradenames, service marks, and
other similar intangible property rights currently used to promote or identify
the Station, or otherwise used in the promotion of the Station's business, are
listed or described on Schedule 1.5 (the "Promotional Rights"). Seller pays no
royalty to anyone with respect to the Promotional Rights. Seller does not have
any knowledge, nor has Seller received any notice to the effect that its use of
any of the Promotional Rights may or are claimed to infringe on the right of
another. Seller has no knowledge of any infringement or unlawful or
unauthorized use of such Promotional Rights, including without limitation the
use of any call sign, slogan or logo by any broadcast or cable station in the
Key West, Florida geographical area that may be confusingly similar to the call
sign, slogans, and logos currently used by the Station. To Seller's knowledge,
the operation of the Station does not infringe any copyright, patent,
trademark, tradename, service mark, and other similar right of any third party.
6.18 FINANCIAL STATEMENTS. Seller has furnished
Buyer with financial statements for the Station for the years ending December
31, 1990, 1991 and 1992 (the "Financial Statements") and monthly financial
statements for each month ending between January 1, 1993 and the date of this
Agreement (the "Interim Statements"). The Financial Statements and the
Interim Statements fairly and accurately reflect the financial results of the
operations of the Station for the periods indicated based upon consistent
reporting standards throughout the periods involved and as compared with prior
periods. Except as reflected in the Financial Statements, the Interim
Statements or otherwise disclosed to Buyer in writing, no event has occurred
since the preparation of the most recent Interim Statement that would make the
Financial Statements or the Interim Statements misleading in any material
respect.
6.19 UTILITIES. All utilities that are required for
the current occupancy and use of the Station and the Real Property for the
purposes for which such properties are presently being used by Seller,
including without limitation electric, water, sewer, telephone and similar
services, have been connected and, to the knowledge of Seller, are in good
working order. By the
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Closing Date, Seller will have paid all charges for such utilities, including
without limitation any "tie-in" charges or connection fees, except for those
charges that will become due until after the Closing Date and that are to be
prorated between Seller and Buyer pursuant to Section 4.
6.20 NO MISLEADING STATEMENTS. To Seller's
knowledge, no statement made by Seller to Buyer and no statement as set forth
in this Agreement, or information delivered or to be delivered to Buyer in
satisfaction of a requirement of this Agreement, contains or will contain any
untrue statement of a material fact or omits or will omit a material fact
necessary in order to make such statements or information in light of the
circumstances under which such statement or information is delivered not
misleading.
7. REPRESENTATIONS AND WARRANTIES OF BUYER. Subject to the
qualifications set forth on Schedule 7, Buyer makes the following
representations and warranties, all of which have been relied upon by Seller in
entering into this Agreement and, except as set forth on Schedule 7 or as
otherwise specifically provided, all of which shall be true and correct as of
Closing.
7.1 ORGANIZATION. Buyer is a corporation duly
organized, validly existing, and in good standing, under the laws of the State
of Nevada, is duly qualified to do business in the State of Florida and has
full corporate power and authority to enter into and perform this Agreement.
7.2 AUTHORIZATION. The execution and delivery of
this Agreement by Buyer has been duly authorized by all necessary corporate
action on the part of Buyer. Evidence of such authorization shall be delivered
to Seller at Closing. This Agreement has been duly executed by Buyer and
delivered to Seller and constitutes a legal, valid, and binding obligation of
Buyer, enforceable in accordance with its terms.
7.3 NO BREACH. None of (i) the execution, delivery
and performance of this Agreement by Buyer, (ii) the consummation of the
Transaction, or (iii) Buyer's compliance with the terms and conditions hereof
will, with or without the giving of notice or the lapse of time or both,
conflict with, breach the terms and conditions of, constitute a default under,
or violate Buyer's articles of incorporation, bylaws, any judgment, decree,
order, agreement, lease or other instrument to which Buyer is a party or by
which Buyer is legally bound, or any law, rule or regulation applicable to
Buyer.
7.4 LITIGATION. There is no action, suit,
investigation or other proceedings pending or, to Buyer's knowledge, threatened
which may adversely affect Buyer's ability to perform in accordance with the
terms of this Agreement, and Buyer is unaware of any facts which could
reasonably result in any such proceeding.
7.5 NO MISLEADING STATEMENTS. To Buyer's
knowledge, no statement made by Buyer to Seller set forth in this Agreement,
contains or will contain any untrue statement of a material fact.
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7.6 QUALIFICATION AS BROADCAST LICENSEE. As a
licensee of commercial radio stations (the "Tropic Stations"), Buyer knows of
no fact that would, under the Communications Act of 1934, as amended, or the
rules, regulations and policies of the FCC, disqualify Buyer from becoming the
licensee of the Station. There are no proceedings, complaints, notices of
forfeiture, claims, investigations pending or, to the knowledge of Buyer,
threatened against any or in respect of any of the Tropic Stations that would
materially impair the qualifications of Buyer to become a licensee of the
Station or delay the FCC's processing of the Assignment Applications.
8. ENVIRONMENTAL MATTERS.
8.1 DEFINITIONS.
8.1.1 "Hazardous Materials" means substances defined
as "hazardous wastes," "hazardous substances," "toxic substance," "pollutants,"
"contaminants," "radioactive materials," "petroleum or any fraction thereof,"
under and regulated pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986 ("CERCLA"), 42 U.S.C. Section 9601 et seq.;
the Toxic Substances control Act ("TSCA"). 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; the Resource
Conservation and Recovery Act. ("RCRA"), 42 U.S.C. Section 9601 et seq.; the
Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act 42, U.S.C. Section 300f et seq.; The Clean Air Act ("CAA"),42 U.S.C.
Section 7401 et seq.; or any analogous federal or state law; and in the rules,
regulations or ordinances adopted, or other enforceable criteria and guidelines
promulgated pursuant to the preceding laws; all as in effect as of the Closing
Date (collectively the "Environmental Laws").
8.1.2 "Environmental Conditions" means conditions of
environment, including the ocean, natural resources (including flora and
fauna), soil, surface water, ground water, any present or potential drinking
water supply, subsurface strata or the ambient air, relating to or arising out
of the use, handling, storage, treatment, recycling, generation,
transportation, release, spilling, leaking, pumping, pouring, emptying,
discharging, injecting, escaping, leaching, disposal, dumping or threatened
release of Hazardous Material by Seller or Seller's predecessors in interest or
onto or into the Real Property or Land. With respect to claims by employees,
Environmental Conditions also includes the exposure of persons to Hazardous
Materials introduced to the environment prior to the Closing Date, within a
work place on the Real Property.
8.1.3 "Environmental Noncompliance" means: (1) the
release or threatened release of any Hazardous Materials into the environment,
any storm drain, sewer, septic system or publicly owned treatment works, in
violation of any effluent or emission limitations, standards or other
Environmental Law; (2) any material noncompliance with applicable Environmental
Laws; (3) any facility operations, procedures, designs, etc. which do not
conform in all material respects to applicable statutory or regulatory
requirements of the CAA, the CWA, the TSCA, the RCRA or any other applicable
Environmental Laws intended to protect public health, welfare and the
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environment; (4) the failure to have obtained material permits, variances or
other authorizations required under applicable Environmental Laws for the
operation of any equipment, process, facility or any other activity; (5) the
operation of any facility or equipment in violation any material permit
condition, schedule of compliance, or administrative or court order.
8.1.4 "Environmental Claims" means claim, demands,
suits, causes of action for personal injury or property damage (including any
depreciation of property values and lost use of property) arising directly or
indirectly out of Environmental Noncompliance; claims for the recovery of
response costs, or administrative or judicial orders directing the performance
of investigations, response or remedial actions under CERCLA, RCRA, or other
applicable Environmental Laws; a requirement to implement a "corrective action"
plan pursuant to any order or permit issued pursuant to RCRA; claims for
restitution, contribution or indemnity from third parties or any governmental
agency arising directly or indirectly out of Environmental Conditions or
Environmental Noncompliance; fines, penalties, liens against property arising
directly or indirectly out of Environmental Conditions or Environment
Noncompliance; claims for injunctive relief or other orders or notices of
violation from federal, state or local agencies or courts arising directly or
indirectly out of Environmental Conditions or Environmental Noncompliance; and
with regard to any present or former employees, claims for exposure to or
injury from Environmental Conditions.
8.1.5 "Expenses" includes any liability, loss, cost
or expense arising directly or indirectly from an Environmental Condition or
Environmental Noncompliance, including, without limitation, costs of
investigation, cleanup, remedial or response action, the cost associated with
posting financial assurances for the completion of response, remedial or
corrective actions, the preparation of any closure or other necessary or
required plans or analyses, or other reports or analyses submitted to or
prepared by regulating agencies, including the cost of health assessments,
epidemiological studies and the like, retention of engineers and other expert
consultants, legal counsel, capital improvements, operation and maintenance
testing and monitoring costs, power and utility costs and pumping taxes or
fees, and administrative costs incurred by governmental agencies.
8.2 SELLER'S ENVIRONMENTAL DISCLOSURES. The
matters set forth in this Section constitute disclosures of Seller which shall
be true and accurate as of the Closing Date. In the event that, during the
period between the execution of this Agreement and the Closing Date, Seller
learns, or has reason to believe, that any of the following disclosures may
cease to be true, Seller hereby covenants to give notice thereof to Buyer as
promptly as reasonably possible. Except as set forth or described in the
Environmental Assessments on Schedule 8.2, Seller hereby discloses that to the
knowledge of Seller:
8.2.1 NO PROCEEDINGS. There are no Environmental
Claims pending against Seller or, to the best of Seller's knowledge pending
against Seller's studio landlord or transmitter and tower site landlord, based
on Environmental Conditions or Environmental Noncompliance at the Real
Property, or any part thereof, or otherwise arising from Seller's activities at
the Real
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Property involving Hazardous Materials, including proceedings under CERCLA,
RCRA, or any other Environmental Laws based on the off-site transportation,
treatment, storage, recycling or disposal of Hazardous Materials generated by
Seller;
8.2.2 ENVIRONMENTAL COMPLIANCE. With respect to
operations being conducted at the Real Property by the Seller, such operations
are being conducted in compliance with and are in compliance with all of the
applicable Environmental Laws;
8.2.3 ABESTOS. There are no structures,
improvements, equipment, activities, fixtures or facilities owned by or
otherwise under the control of Seller on the Real Property which are
constructed with, use or otherwise contain unencapsulated friable
asbestos-containing construction materials. For the purposes of this
subsection: (1) "asbestos" means fibrous forms of chrysotile (fibrous
serpentine), crocidolite (fibrous reibecktite), amosite (fibrous
cummingtonite-grunerite), fibrous tremolite, fibrous actinolite, and fibrous
anthophyllite, to the extent regulated under applicable Environmental Laws; (2)
"asbestos-containing construction materials" means any manufactured
construction material which contains more than one-tenth of one percent
asbestos by weight;
8.2.4 HAZARDOUS MATERIALS. Except with respect to
ordinary course operations, processes and activities involving the use of
Hazardous Materials conducted in material compliance with applicable
Environmental Laws, there are no structures, improvements, equipment, fixtures,
activities or facilities owned by or under the control of Seller on the Real
Property which use or contain (in amounts or concentrations requiring
remediation under applicable Environmental Laws) Hazardous Materials or
equipment containing concentrations of polychlorinated biphenyls subject to
TSCA regulations, except to the extent that such use or presence does not
constitute a condition Environmental Noncompliance; and
8.2.5 RELEASES. There are no processes, operations,
or any other activities involved in Seller's use of the studio or tower and
transmitter site which currently result in the release of threatened release of
Hazardous Materials into the environment in excess applicable reportable
quantities, except to the extent that such releases or threatened releases do
not constitute a condition of Environmental Noncompliance.
8.3 COMPLETE DISCLOSURE. Seller has no knowledge
of any environmental matters other than those that will be disclosed in the
Environmental Assessments as set forth on Schedule 8.2.
9. PRE-CLOSING OBLIGATIONS. The parties covenant and agree
as follows with respect to the period prior to the Closing Date:
9.1 APPLICATIONS FOR COMMISSION CONSENT. As soon as
possible, but in no event later than fifteen (15) business days after the date
of this Agreement, Seller and Buyer shall join in and file an application or
applications requesting the Commission's written consent to the assignment of
the Station Licenses from Seller to Buyer (the "Assignment Applications"), and
they will diligently take all steps necessary or desirable and proper to
prosecute expeditiously the
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Assignment Applications and to obtain the Commission's determination that
approval of the Assignment Applications will serve the public interest,
convenience, and necessity. The failure by either party to timely file or
diligently prosecute its portion of the Assignment Applications shall be deemed
a material breach of this Agreement.
9.2 OTHER GOVERNMENTAL CONSENTS. Promptly
following the execution of this Agreement, Seller and Buyer shall proceed to
prepare and file with the appropriate governmental authorities (other than the
Commission) such requests, if any, for approval or waiver as may be required
from such governmental authorities in connection with the Transaction, and
shall jointly, diligently and expeditiously prosecute, and shall cooperate
fully with each other in the prosecution of, such requests for approval or
waiver and all proceedings necessary to secure such approvals and waivers.
9.3 FINANCIAL INFORMATION. Between the date hereof
and the Closing Date, Seller shall furnish Buyer with monthly financial
statements within thirty (30) days after the end of each calendar month, and
with such additional data concerning the Station's financial condition as are
prepared by Seller in the ordinary course of business.
9.4 CONSENTS. Seller shall use its reasonable best
efforts to obtain the consents of the other contracting parties to the
assignment of the Contracts that require such consent and to the assignment of
the Tower Lease Agreement.
9.5 ENGINEERING REPORT. Within sixty (60) days of
the date of this Agreement, Seller shall deliver to Buyer (a) a report prepared
by a consulting communications engineer acceptable to Buyer concerning the
condition of the Station Equipment and (b) a report prepared by an AIA
certified consultant acceptable to Buyer concerning the compliance of Seller's
transmitter and tower improvements on the Real Property with applicable access,
fire, proposed zoning and other land-use laws (together, the "Engineering
Report"). If the Engineering Report discloses the need for modifications
(other than those contemplated in the Capital Budget) that in Buyer's
reasonable judgment involve expenses in excess of $5,000.00, Buyer shall
deliver in writing to Seller, within 30 days of receipt of the Engineering
Report, Buyer's objections to such matters. Thereafter, at any time prior to
the Closing Date, Seller shall have the option, but not the obligation, to take
such action as Seller and Buyer shall agree upon in order to satisfy Buyer's
objections. If Seller fails or declines to take such actions, Buyer shall have
the option to either terminate this Agreement or consummate the transactions
contemplated herein including accepting the Station Equipment and the
transmitter and tower improvements subject to such conditions.
9.6 CONFIDENTIALITY. Each party agrees that any
and all information learned or obtained by it from the other (and that is not
otherwise public or known in the radio broadcast industry) shall be
confidential and agrees not to disclose any such information to any person
whatsoever other than as is necessary for the purpose of effecting the
Transaction or as otherwise required by law.
9.7 ACCESS. Between the date hereof and the
Closing Date, Seller shall give, upon prior notice, Buyer or representatives of
Buyer (including underwriters, lenders,
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consultants and investors) reasonable access to the Assets (to the Extent
permitted by the Tower Lease Agreement) and to the books and records of Seller
relating to the business and operation of the Station. It is expressly
understood that, pursuant to this Section, Buyer, at its sole expense, shall be
entitled to make such engineering inspections of the Station and transmitter
and tower site, and such audits of the Station's financial records, as Buyer
may desire, so long as the same do not unreasonably interfere with Seller's
operations of the Station.
9.8 EMPLOYEE MATTERS. Seller has provided to Buyer
an accurate list of all current employees of the Station on Schedule 9.8 (the
"Station Employees") together with a description of the terms and conditions of
their respective employment and their duties as of the date of this Agreement.
Seller shall promptly notify Buyer of any changes that occur prior to Closing
with respect to such information. On or prior to Closing, Seller shall
compensate each of the Station's employees for all accrued commissions, accrued
vacations, sick leave and other accrued benefits. Seller shall terminate the
employment of all the Station Employees effective on the Closing Date.
9.9 OPERATIONS PRIOR TO CLOSING. Between the date
of this Agreement and the Closing Date:
(a) Seller shall operate the Station in the normal
and usual manner, generally consistent with Seller's past practice and the
rule, regulations, and policies of the Commission, and shall conduct the
Station's business only in the ordinary course. To the extent consistent with
such operations, Seller shall use its reasonable best efforts to: (i) maintain
the present entertainment format of the Station and the quality of its
programs; (ii) keep available for Buyer the services and number of the
Station's present employees reasonably necessary for the operation of the
Station; (iii) preserve the Station's present customers and business relations;
(iv) satisfy Seller's obligations under the Trade Agreements; (v) continue to
make expenditures and engage in activities designed to promote the Station;
(vi) continue making capital expenditures in accordance with the capital
expenditure budget for the Station set forth in Schedule 9.9(a)(vi)(the
"Capital Budget") and otherwise consistent with past station practice (it being
understood that the Capital Budget contemplates expenditures to be made after
the projected Closing Date which will not be Seller's responsibility); and
(vii) undertake to collect its accounts receivable in accordance with Seller's
normal and customary collection practices.
(b) Seller shall: (i) subject to Section 14.3,
maintain the Assets in their present condition (reasonable wear and tear
normal use excepted); and (ii) maintain all inventories of supplies, tubes,
and spare parts at levels generally consistent with the Station's prior
practices.
(c) Seller shall maintain its books and records in
the usual and ordinary manner, on a basis consistent with prior periods.
(d) Seller shall comply with all laws, rules,
ordinances and regulations applicable to it, to the Assets and to the business
and operation of the Station, the failure with which to comply could have a
material adverse affect on any of the Assets, the Station or the business or
operations of the Station.
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(e) Seller shall perform all Contracts and its
obligations under the Tower Lease Agreement without material default and shall
pay all of Seller's trade accounts payable in a timely manner; provided,
however, that Seller may dispute, in good faith, any alleged obligation of
Seller.
(f) Seller shall not, without the express written
consent of Buyer which shall not be unreasonably withheld, and which shall be
deemed given in the event Buyer has not responded to a written request therefor
within ten (10) days: (i) sell or agree to sell or otherwise dispose of any of
the Assets (A) other than in the ordinary course of business, and (B) unless
such Assets are replaced prior to Closing by assets of equal or greater worth,
quality and utility: (ii) acquiesce in any infringement, unauthorized use or
impairment of the Intangible Property or change the Station's call signs; (iii)
enter into any employment contract on behalf of the Station unless the same is
terminable at will and without penalty; or (iv) enter into any other contract,
lease or agreement that will be binding on Buyer after Closing, except for (A)
Sales Agreements, Trade Agreements, and Barter Agreements to the extent
consistent with Section 1.3, and (B) other contracts, leases and agreements
that in the aggregate will not impose obligations on Buyer in excess of Two
Thousand Dollars ($2,000).
9.10 ADVERSE DEVELOPMENTS. Seller shall promptly
notify Buyer of any materially adverse developments that occur prior to Closing
with respect to the Assets or the operation of the Station; provided, however,
that Seller's compliance with the disclosure requirements of this Section 9.10
shall not relieve Seller of any obligation with respect to any representation,
warranty or covenant of Seller in this Agreement or waive any condition to
Buyer's obligations under this Agreement.
9.11 ADMINISTRATIVE VIOLATIONS. If Seller receives
any finding, order, complaint, citation or notice prior to the Closing Date
which states that any aspect of the Station's operations violates any rule or
regulation of the Commission or of any other governmental authority (an
"Administrative Violation"), including without limitation any rule or
regulation concerning environmental protection, the employment of labor, or
equal employment opportunity, Seller shall promptly notify Buyer of the
Administrative Violation, remove or correct the Administrative Violation, and
be responsible for the payment of all costs associated therewith, including any
fines or back pay that may be assessed.
9.12 BULK SALES ACT. Seller agrees to indemnify,
defend, and hold Buyer harmless against any claims, liabilities, costs, or
expenses, including reasonable attorneys' fees, that Buyer may incur as a
result of the failure to comply with the bulk sales provisions of the Uniform
Commercial Code or similar laws.
9.13 CONTROL OF STATION. This Agreement shall not
be consummated until after the Commission has given its written consent
thereto, and notwithstanding anything herein to the contrary, between the date
of this Agreement and the Closing Date, Buyer shall not directly or indirectly
control, supervise or direct, or attempt to control, supervise or direct the
operation of the Station. Such operations shall be the sole responsibility of
Seller.
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10. CONDITIONS PRECEDENT.
10.1 MUTUAL CONDITIONS. The obligation of both
Seller and Buyer to consummate this Agreement is subject to the satisfaction of
each of the following conditions:
10.1.1 COMMISSION CONSENT. The Commission shall have
granted its consent to the Assignment Applications and such FCC Consent shall
have become a Final Order (as defined below). Final Order means an order or
action of the Commission that, by reason of expiration of time or exhaustion of
remedies, is no longer subject to administrative or judicial reconsideration or
review.
10.1.2 ABSENCE OF LITIGATION. As of the Closing
Date, no action, claim, suit or proceeding seeking to enjoin, restrain, or
prohibit the consummation of the Transaction shall be pending before any court,
the Commission, or any other governmental authority; provided, however, that
this condition may not be invoked by a party if any such action, suit, or
proceeding was solicited or encouraged by, or instituted as a result of any act
or omission of, such party.
10.2 CONDITIONS TO BUYER'S OBLIGATION. In addition
to satisfaction of the mutual conditions contained in Section 10.1, the
obligation of Buyer to consummate this Agreement is subject to the satisfaction
of each of the following conditions:
10.2.1 REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller to Buyer shall be true, complete, and
correct in all material respects as of the Closing Date with the same force and
effect as if then made.
10.2.2 COMPLIANCE WITH CONDITIONS. All of the terms,
conditions and covenants to be complied with or performed by Seller on or
before Closing Date shall have been timely complied with and performed in all
material respects.
10.2.3 NO ADVERSE DEVELOPMENT. There shall not be or
have been any (a) breach by Seller or any Affiliate of Seller, or failure to
be in full force in effect on the Closing Date, of any Material Contract; or
(b) any other adverse change in the business or prospects of either the Station
or the condition of the Assets. No adverse development shall have occurred
with respect to the Station that results in an impairment to the ability of the
Station to operate as it is now operated or represents an impairment of the
value of the Station or Assets being conveyed.
10.2.4 ENGINEERING REPORT. Buyer shall have timely
received the Engineering Report which shall reveal nothing inconsistent with
Seller's representations, warranties or disclosures hereunder, or to which
Buyer has an express right to object hereunder except to the extent such
inconsistencies have been expressly waived by Buyer.
10.2.5 VALIDITY OF STATION LICENSES. On the Closing
Date, Seller shall be the owner and holder of the Station Licenses to the
extent that such authorizations can be owned or held by Seller under the
Communications Act of 1934, as amended; the Station Licenses shall be in
unconditional full force and effect, valid for the balance of the current
license term applicable generally to radio stations licensed to communities in
the state where the Station is located; and the Station Licenses shall be
unimpaired by any acts or omissions of Seller or Seller's employees, agents,
officers, directors or shareholders.
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10.2.6 CLOSING DOCUMENTS. Seller shall deliver to
Buyer all of the closing documents specified in Section 11.2.1, all of which
documents shall be dated as of the Closing Date, duly executed, and in a form
customary in the state where the Assets are located and reasonably acceptable
to Buyer.
10.2.7 THIRD PARTY CONSENTS. Seller shall have
obtained all Required Consents to the assignment of the Material Contracts, as
listed on Schedule 1.3, and all consents necessary for the assignment of the
Tower Lease Agreement from Seller to Buyer such that Buyer will enjoy all of
the rights and privileges of Seller under the Contracts and the Tower Lease
Agreement subject only to the same obligations as are binding on Seller
thereunder, pursuant to the present terms thereof.
10.2.8 ESTOPPEL CERTIFICATES. Seller shall have
obtained such fee owner's consents and mortgagee's estoppel and non-disturbance
agreements with respect to the leases for the Leased Premises as are reasonably
requested by Buyer not less than ten (10) days prior to the Closing Date.
10.2.9 SETTLEMENT OF CLAIMS. Seller shall have
settled any and all claims against Seller that affect or concern the Assets.
10.2.10 TITLE TO ASSETS. Seller shall hold and be
able to deliver to Buyer on the Closing Date good and indefeasible title to the
Assets.
10.3 CONDITIONS TO SELLER'S OBLIGATION. In addition
to satisfaction of the mutual conditions contained in Section 10.2, the
obligation of Seller to consummate this Agreement is subject to satisfaction of
each of the following conditions:
10.3.1 REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer to Seller shall be true, complete and
correct in all material respects as of the Closing Date with the same force and
effect as if then made.
10.3.2 COMPLIANCE WITH CONDITIONS. All of the terms,
conditions and covenants to be complied with or performed by Buyer on or before
the Closing Date shall have been timely complied with and performed in all
material respects.
10.3.3 PAYMENT. Buyer shall pay and/or deliver to
Seller the consideration set forth in Section 3.
10.3.4 CLOSING DOCUMENTS. Buyer shall deliver to
Seller all the closing documents specified in Section 11.2.2, all of which
documents shall be dated as of the Closing Date, duly executed, and in a form
customary in transactions of this type and reasonably satisfactory to Seller.
11. CLOSING.
11.1 CLOSING DATE. The Closing hereunder shall
occur on a date mutually agreeable to Buyer and Seller as soon as possible but
in any event no later than fifteen (15) business days after the Commission's
action granting its consent to the Assignment Application has become a Final
Order (the "Closing Date"), and shall be effective as of 11:59 P.M. on the
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Closing Date; provided, however, that in the event a Final Order is not
received on or before March 31, 1995, then (unless the parties agree to an
extension of such deadline) this Agreement shall be terminated as of such date
and held to be void ab initio, and all monies previously delivered to the
Escrow Agent or any party hereto shall be returned to the conveying party and
all liabilities and obligations hereunder shall cease to exist (except to the
extent required to unwind the Transaction contemplated hereunder). The Closing
shall take place at the office of Buyer's counsel in Columbus, Ohio, or at such
other location as may be mutually agreeable to Buyer and Seller, commencing at
10:00 A.M. on the Closing Date. If, as of the Closing Date, any condition
precedent described in Section 10 has not been satisfied, the party of the
absence of such condition precedent at or before the Closing and simultaneously
therewith postpone the Closing until a date ten (10) days after all such
conditions have been (or are able to be) performed, and such postponed date
shall constitute the new Closing Date for all purposes hereunder.
11.2 PERFORMANCE AT CLOSING. The following
documents shall be executed and delivered at Closing.
11.2.1 BY SELLER. Seller shall deliver to Buyer:
(a) A certificate executed by Seller attesting to
Seller's compliance with the matters set forth in Section 10.2.1, 10.2.2
and 10.2.3 together with certified copies of (i) the Articles of Incorporation
and Bylaws, or other organization documents, if any, of Seller, (ii) the
Tower Lease Agreement, and (iii) a resolution of Seller's directors
authorizing Seller to enter into and consummate this Agreement;
(b) One or more assignments transferring to Buyer
all of the interests of Seller in and to the Station Licenses, the Station
Applications, and all other licenses, permits, and authorizations issued by any
other governmental authorities that are used in or necessary for the lawful
operation of the Station;
(c) One or more bills of sale conveying to Buyer
the Station Equipment and Assets;
(d) One or more assignments, together with all
required consents, assigning to Buyer all of the Contracts, Station
Records, Tower Lease Agreement, Studio Lease and the Intangible Property;
(e) The Covenant;
(f) Opinions of Seller's Counsel in the form
set forth in Exhibit C; and
(g) The affidavit described in Section 6.15 above.
11.2.2 BY BUYER. Buyer shall deliver to Seller:
(a) A certificate executed by Buyer attesting to
Buyer's compliance with the matters set forth in Section 10.3.1 and 10.3.2,
together with appropriate evidence of Buyer's authorization to enter into and
consummate this Agreement;
(b) The Purchase Price and the payment due pursuant
to the Covenant;
(c) Such assumption agreements and other
instruments and documents as are required to make, confirm, and evidence
Buyer's assumption of and obligation to pay,
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perform, or discharge Seller's obligations under the Contracts to the extent
the same are to be assumed by Buyer pursuant to the terms of this Agreement;
and
(d) Opinions of Buyer's Counsel in the form set
forth in Exhibit D.
11.2.3 OTHER DOCUMENTS AND ACTS. The parties will
also execute such other documents and perform such other acts, before and after
the Closing Date, as may be necessary for the complete implementation and
consummation of this Agreement.
12. POST-CLOSING OBLIGATIONS. The parties covenant and agree
as follows with respect to the period subsequent to the Closing Date:
12.1. INDEMNIFICATION.
12.1.1 BUYER'S RIGHT TO INDEMNIFICATION. Seller
undertakes and agrees to indemnify, defend by counsel acceptable to Buyer, and
hold harmless Buyer, its parent, affiliates, successors and assigns and their
respective directors, officers, employees, shareholders, representatives and
agents (hereinafter referred to collectively as "Buyer Indemnitees") from and
against and in respect of any and all direct losses, costs, liabilities,
claims, obligations, Environmental Claims and Expenses, diminution in value and
expenses, including reasonable attorneys' fees, incurred or suffered by a Buyer
Indemnitee arising from (i) the claims of third parties with respect to
operation of the Station or ownership of the Assets prior to Closing not
expressly assumed by Buyer pursuant to this Agreement or otherwise consented to
by Buyer in writing; (ii) a breach, misrepresentation, or other violation of
any of Seller's covenants, warranties or representations contained in this
Agreement; (iii) all liabilities of Seller or the Station not expressly assumed
by Buyer pursuant to this Agreement or otherwise consented to by Buyer in
writing; (iv) all liens, charges, or encumbrances on any of the Assets which
are not expressly permitted by this Agreement or otherwise consented to by
Buyer in writing; (v) all Administrative Violations and alleged Administrative
Violations occurring prior to Closing; and (vi) any breach or default by Seller
under any Contract, prior to Closing. The foregoing indemnity is intended by
Seller to cover all acts, suits, proceedings, claims, demands, assessments,
adjustments, diminution in value, costs, and expenses with respect to any and
all of the specific matters in this indemnity set forth but shall not extend to
indirect, consequential or punitive damages except to the extent such damages
are due on account of third party claims. Notwithstanding the foregoing,
Seller shall have no obligation to indemnify the Buyer unless and until the
aggregate amount of damages exceeds $25,000, at which time indemnification for
the full amount of all damages (including the first $25,000) shall be due.
12.1.2 SELLER'S RIGHT TO INDEMNIFICATION. Buyer
undertakes and agrees to indemnify, defend by counsel acceptable to Seller, and
hold harmless Seller and Seller's respective subsidiaries, affiliates,
successors and assigns, directors, officers, employees, shareholders, partners,
representatives and agents (hereinafter referred to collectively as "Seller
Indemnitees"), from and against and in respect of any and all losses, costs,
liabilities, claims, obligations and expenses, including reasonable attorneys'
fees (and including without limitation any of the
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foregoing with respect to environmental matters), incurred or suffered by a
Seller Indemnitee arising from (i) the operation of the Station or ownership or
operation of the Assets after Closing (including without limitation
environmental conditions and claims, and Environmental Noncompliance to the
extent resulting from or attributable to the conduct of Buyer after the Closing
Date); (ii) a breach, misrepresentation, or other violation of any of Buyer's
covenants, warranties and representations contained in this Agreement; (iii)
all liabilities under the Contracts assumed by Buyer pursuant to this
Agreement; and (iv) any breach or default by Buyer under any Contract after
Closing. The foregoing indemnity is intended by Buyer to cover all acts,
suits, proceedings, claims, demands, assessments, adjustments, costs, and
expenses with respect to any and all of the specific matters in this indemnity
set forth but shall not extend to indirect or consequential damages except to
the extent such damages are due on account of third party claims. None of the
foregoing indemnities apply to claims for environmental conditions or
Environmental Noncompliance to the extent such do not result from or are not
attributable to the conduct of Buyer after the Closing Date. Notwithstanding
the foregoing, Buyer shall have no obligation to indemnify the Seller unless
and until the aggregate amount of damages exceeds $25,000, at which time
indemnification for the full amount of all damages (including the first
$25,000) shall be due.
12.1.3 CONDUCT OF PROCEEDINGS. If any claim or
proceeding covered by the foregoing agreements to indemnify and hold harmless
shall arise, the party who seeks indemnification (the "Indemnified Party")
shall give written notice thereof to the other party (the "Indemnitor")
promptly after the Indemnified Party learns of the existence of such claim or
proceeding; provided, however, that the Indemnified Party's failure to give the
Indemnitor prompt notice shall not bar the Indemnified Party's right to
indemnification unless such failure has materially prejudiced the Indemnitor's
ability to defend the claim or proceeding. The Indemnitor shall have the right
to employ counsel reasonably acceptable to the Indemnified Party to defend
against any such claim or proceeding, or to compromise, settle or otherwise
dispose of the same, if the Indemnitor deems it advisable to do so, all at the
expense of the Indemnitor; provided that the Indemnitor shall not have the
right to control the defense of any such claim or proceeding unless it has
acknowledged in writing its obligation to indemnify the Indemnified Party fully
from all liabilities incurred as a result of such claim or proceeding and then
and periodically thereafter provides the Indemnified Party with reasonably
sufficient evidence of the ability of the Indemnitor to satisfy any such
liabilities. The parties will fully cooperate in any such action, and shall
make available to each other any books or records useful for the defense of any
such claim or proceeding. If the Indemnitor fails to acknowledge in writing
its obligation to defend or contest such obligation against or settle such
claim or proceeding within twenty (20) days after receiving notice thereof from
the Indemnified Party (or such shorter time specified in the notice as the
circumstances of the matter may dictate), the Indemnified Party shall be free
to dispose of the matter, at the expense of the Indemnitor, in any way in which
the Indemnified Party deems to be in its best interest.
12.1.4 INDEMNIFICATION SOLE REMEDY. Except for
specific performance of
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Seller's obligation to effectively and lawfully convey the Assets to Buyer as
provided in this Agreement, the right to indemnification hereunder shall be the
exclusive post-Closing remedy of any party in connection with or arising out of
this Agreement, including without limitation, any breach by another party of
its representations, warranties, or covenants in this Agreement. SELLER MAKES
NO REPRESENTATIONS OR WARRANTIES EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND
HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Except for
specific performance of Seller's obligation to effectively and lawfully convey
the Assets to Buyer as provided in this Agreement, and except for Buyer's
obligations under the Term Note and Security Agreement given by Buyer to Seller
as provided in this Agreement, each party hereby releases and discharges the
other party from any liability or claim with respect to post-closing remedies
for which there is not an express indemnity under this Agreement.
12.1.5 RIGHT OF OFFSET. Each of Buyer and Seller
shall have the right to offset against amounts owing to the other any amounts
owing to such party pursuant to this Agreement, provided that such party shall
first follow the procedures set forth in Section 13.1 hereof.
12.2 CERTIFICATION OF FINANCIAL STATEMENTS. After
the Closing Date, the chief financial officer of Seller and/or Seller shall
cooperate and provide and shall cause the accounting firm or firms, if any,
responsible for the preparation of the financial statements for the Station to
provide such further assurances as it is willing to provide concerning the
accuracy of the pre-closing financial statements of the Station as Buyer or
Buyer's accountants may reasonably request in connection with any public
offering of Buyer.
12.3 Accounting for Accounts Receivables. After the
Closing Date, Buyer will collect all accounts receivable of Seller for a period
of at least sixty (60) days following Closing. Buyer shall provide to Seller a
weekly accounting of all accounts receivable of Seller so collected, and, at
the end of such sixty (60) day period, shall remit to Seller, in cash, all
accounts receivable of Seller so collected, less any amounts applied by Buyer
to the payment of Seller's obligations as approved by Seller. After said sixty
(60) day period, Seller shall have sole responsibility for collection of and
accounting for all accounts receivable of Seller, unless the parties hereto
agree to a continuation of the arrangement first set forth in this Section 12.3
or to some other collection arrangement. For purposes of this Section, the
term "accounts receivable of Seller" shall mean all uncollected sales made by
Seller in his operation of the Station prior to the Closing Date. Buyer agrees
that with respect to any collections made on accounts receivable from customers
with whom both Buyer and Seller have accounts receivable, and which accounts
are not in dispute, such collections shall first be credited to the accounts
receivable of Seller from such customer before any credit shall be given for
such collections to receivables from such customer arising after the Closing
Date.
13. DEFAULT AND REMEDIES.
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13.1 BREACH AND OPPORTUNITY TO CURE. If either
party believes the other to be in default hereunder, the nondefaulting party
shall provide the defaulting party with notice specifying in reasonable detail
the nature of such default. If such default has not been cured by the earlier
of: (i) the Closing Date, or (ii) within twenty-one (21) days after delivery
of such notice, then the party giving such notice may (x) terminate this
Agreement, (y) extend the Closing Date under Section 11.1 (but no such
extension shall constitute a waiver of such nondefaulting party's right to
terminate as a result of such default), and/or (z) exercise the remedies
available to such party pursuant to Sections 13.2 or 13.3 hereof, subject to
the right of the other party to contest such action through appropriate
proceedings, or pursuant to Section 12.1.5 hereof.
13.2 SELLER'S REMEDIES. Buyer recognizes that if
the Transaction is not consummated as a result of Buyer's default, Seller would
be entitled to compensation. The parties, therefore, agree that if this
Agreement is not consummated due to the default of Buyer, Seller, provided that
Seller is not in default and has otherwise complied with its obligations under
this Agreement, shall be entitled to the Escrow Deposit. The parties agree
that this sum shall constitute liquidated damages and shall be in lieu of any
and all other relief to which Seller might otherwise be entitled due to Buyer's
failure to consummate, or default under, this Agreement.
13.3 BUYER'S REDEMIES. Seller agrees that the
Assets include unique property that cannot be readily obtained on the open
market and that Buyer would be irreparably injured if this Agreement is not
specifically enforced after default. Therefore, Buyer shall have the rights to
specifically enforce Seller's performance under this Agreement and to sue for
damages, and Seller agrees to waive the defense in any such suit that Buyer has
an adequate remedy at law and to interpose no opposition, legal, or otherwise,
as to the propriety of specific performance as a remedy. In the event Buyer
elects to terminate this Agreement as a result of Seller's default instead of
seeking specific performance, Buyer shall be entitled to the return of the
Escrow Deposit and to recover Buyer's damages.
14. TERMINATION.
14.1 ABSENCE OF COMMISSION CONSENT. This Agreement
may be terminated at the option of either party upon notice to the other if a
Final Order approving the Assignment Applications has not been obtained on or
before March 31, 1995, (unless Buyer and Seller agree to extend such deadline);
provided, however, that neither party may terminate this Agreement if such
party is in default hereunder, or if a delay in any decision or determination
by the Commission respecting the Assignment Applications has been caused or
contributed to by such party's action or inaction with respect to the
Assignment Applications. In the event of termination pursuant to this Section,
the Escrow Deposit shall be returned to the Buyer and the parties shall be
released and discharged from any further obligation hereunder unless the
failure to obtain such Final Order is attributable to Buyer, as provided in
this Section, and Seller is not in default and has otherwise complied with its
obligations under this Agreement, in which case the Escrow Deposit shall be
released to Seller as liquidated damages pursuant to Section 13.2.
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14.2 DAMAGE.
14.2.1 RISK OF LOSS. The risk of loss or damage to
the Assets shall be upon Seller at all times prior to the Closing. In the
event of loss or damage, Seller shall promptly notify Buyer thereof and use its
reasonable best efforts to repair, replace or restore the lost or damaged
property to its former condition as soon as possible. If such repair,
replacement, or restoration has not been completed prior to the Closing Date,
Buyer, at its option:
(a) elect to consummate the Transaction
in which event Seller shall assign to Buyer all of Seller's rights to insurance
proceeds related to such casualty under any applicable insurance policies; or
(b) elect to postpone the Closing Date,
with prior consent of the Commission if necessary, which consent both parties
will use their reasonable best efforts to obtain, for such reasonable period of
time (not to exceed ninety (90) days) as is necessary for Seller if Seller so
elects in its sole discretion to repair, replace, or restore the lost or
damaged property to its former condition. If, after the expiration of that
extension period, the lost or damaged property has not been adequately
repaired, replaced or a restored, Buyer may terminate this Agreement, and the
parties shall be released and discharged from any further obligation hereunder,
except to the extent of the return to Buyer of the Escrow Deposit.
14.2.2 FAILURE OF BROADCAST TRANSMISSION. Seller
shall give prompt written notice to Buyer if either of the following (a
"Specified Event") shall occur: (i) the regular broadcast transmissions of the
Station in the normal and usual manner is interrupted or discontinued other
than for routine maintenance or repairs for more than three (3) hours; or (ii)
the Station is operated at less than its licensed antenna height above average
terrain or at less than ninety percent (90%) of its licensed effective radiated
power other than for routine maintenance or repairs for more than three (3)
hours. If any Specified Event persists for more than seventy-two (72) hours
or, in the event of weather conditions or utility failure affecting generally
the Station in the market served by the Station, ninety-six (96) hours, whether
or not consecutive, during any period of thirty (30) consecutive days, then
Buyer may, at its option: (i) terminate this Agreement by written notice given
to Seller not more than ten (10) days after the expiration such thirty (30) day
period, or (ii) proceed in the manner set forth in Section 14.2.1. In the
event of termination of this Agreement by Buyer pursuant to this Section, the
Escrow Deposit shall be returned to Buyer and the parties shall be released and
discharged from any further obligation hereunder.
14.2.3 RESOLUTION OF DISAGREEMENTS. If the parties are
unable to agree upon the extent of any loss or damage, the cost to repair,
replace or restore any lost or damaged property, the adequacy of any repair,
replacement, or restoration of any lost or damaged property, or any other
matter arising under this Section 14.2, the disagreement shall be referred to a
qualified consulting communications engineer mutually acceptable to Seller and
Buyer who is a member of the Association of Federal Communications Consulting
Engineers, whose decision shall be final, binding upon and non-appealable by
the parties, and whose fees and expenses shall be paid one-half by Seller and
one-half by Buyer.
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14.3 LEGAL ACTIONS. If, prior to the Closing Date,
any action, suit, or proceeding shall have been instituted by or before any
court or other governmental authority (other than the Commission) to enjoin,
restrain, or prohibit the consummation of the Transaction, the Closing may be
adjourned at the option of either party, with prior consent of the Commission
if necessary, which consent both parties will use their reasonable best efforts
to obtain, for a period of up to ninety (90) days, and if, at the end of such
period, the action, suit, or proceeding shall not have been favorably resolved,
either party may, by written notice to the other, terminate this Agreement;
provided, however, that if such action, suit, or proceeding shall have been
solicited or encouraged by, or instituted as a result of any act or omission of
either Seller or Buyer, then such party shall not have any right of adjournment
or termination pursuant to this Section. In the event of termination pursuant
to this Section, the Escrow Deposit shall be returned to Buyer and the parties
shall be released and discharged from any further obligation hereunder unless
Buyer is in default or has otherwise failed to comply with its obligations
under this Agreement and Seller is not in default and has otherwise complied
with its obligations hereunder, in which case the Escrow Deposit shall be
released to Seller as liquidated damages pursuant to Section 13.2.
15. GENERAL PROVISIONS.
15.1 BROKERAGE. Seller represents to Buyer that
Seller shall pay the fees of Jorgenson Broadcast Brokerage as broker in
connection with the Transaction, And Jorgenson shall compensate The Connelly
Company out of such sum for its services provided to this transaction. The
parties agree to indemnify and hold each other harmless against any claim from
any other broker or finder based upon any agreement, arrangement, or
understanding alleged to have been made by the indemnifying party.
15.2 EXPENSES. Except as otherwise provided herein,
all expenses involved in the preparation and consummation of this Agreement
shall be borne by the party incurring the same whether or not the Transaction
is consummated. All Commission filing fees for the Assignment Application or
Applications shall be shared equally by Buyer and Seller. Seller shall make
the payments for Commission filing fees and Buyer shall reimburse Seller for
its portion of such payments. All recording costs for instruments of transfer,
and all stamp, sales, use and transfer taxes shall be paid by Seller.
15.3 NOTICES. All notices, requests, demands, and
other communications pertaining to this Agreement shall be in writing and shall
be deemed duly given when delivered personally (which shall include delivery by
Federal Express or other nationally recognized reputable overnight courier
service that issues a receipt or other confirmation of delivery) to the party
for whom such communication is intended, or three (3) business days after the
date mailed by certified or registered U.S. mail, return receipt requested,
postage prepaid, addressed as follows:
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(a) If to Seller:
White Broadcasting
685 East Long Lake
Bloomfield Hills, Michigan 48304
Attention: Mr. J. Larry White
(810) 644-5443 Fax: (810) 644-1094
with copies (which shall not constitute notice) to:
James J. Freeman, Esq.
Reed, Smith, Shaw & McClay
1200 18th Street, N.W.
Washington, D.C. 20036
(202) 457-8624 Fax: (202) 457-6113
(b) If to Buyer:
Mr. John E. Rayl
Partech Communications Group, Inc.
3366 Riverside Drive, Suite 200
Columbus, Ohio 43221
(614) 538-0660 Fax: (614) 538-0670
with copies (which shall not constitute notice) to:
Charles A. Koenig, Esq.
Cloud Koenig & Owen
5354 North High Street, Suite 3D
Columbus, Ohio 43214
(614) 221-3621 Fax: (614) 221-2698
Any party may change its address for notices by notice to the others given
pursuant to this Section.
15.4 ATTORNEY'S FEES. If any party initiates any
litigation against any other involving this Agreement, the prevailing party in
such action shall be entitled to receive reimbursement from the other party for
all reasonable attorneys' fees and other costs and expenses incurred by the
prevailing party in respect of that litigation, including any appeal, and such
reimbursement may be included in the judgment or final order issued in that
proceeding.
15.5 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
INDEMNIFICATION RIGHTS. The several representations and warranties of the
parties contained herein, and the parties respective indemnification rights
pursuant to Section 12, shall survive the Closing for a period of eighteen (18)
months, at which time, the same shall expire (except for claims asserted during
such eighteen (18) month period); provided, however, that representations and
warranties with respect to title and authorization shall survive in perpetuity.
15.6 EXCLUSIVE DEALINGS. For so long as this
Agreement remains in effect, neither Seller, its officers, directors,
employees, shareholders, or partners or owners, as the case may be, nor any
person acting on Seller's behalf, shall, directly or indirectly, solicit or
initiate any offer from, or conduct any negotiations with, any person other
than Buyer or Buyer's assignee(s) concerning the acquisition of the Station or
Stations.
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15.7 WAIVER. Unless otherwise specifically agreed
in writing to the contrary: (i) the failure of any party at any time to
require performance by another of any provision of this Agreement shall not
affect such party's right thereafter to enforce the same; (ii) no waiver by any
party of any default by any other shall be valid unless in writing and
acknowledged by an authorized representative of the nondefaulting party, and no
such waiver shall be taken or held to be a waiver by such party of any other
preceding or subsequent default; and (iii) no extension of time granted by any
party for the performance of any obligation or act by any other party shall be
deemed to be an extension of time for the performance of any other obligation
or act hereunder.
15.8 ASSIGNMENT. No party may assign its rights or
obligations hereunder without the prior written consent of the other parties
except: (i) Buyer may assign its rights and obligations to a corporation,
partnership or other business entity that controls, is controlled by, or is
under common control with Buyer, provided that Buyer shall remain liable for
all obligations under this Agreement, and (ii) Buyer may make a collateral
assignment of its rights under this Agreement to any lender who provides funds
to Buyer for the acquisition or operation of the Station. Seller agrees to
execute acknowledgments of such assignment(s) and collateral assignment(s) in
such forms as Buyer or Buyer's lender(s) may from time to time request.
Subject to the foregoing, this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the parties hereto and their respective
successors and assignees.
15.9 ENTIRE AGREEMENT. This Agreement, the Exhibits
and Schedules hereto (which are incorporated by reference herein), constitute
the entire agreement between the parties with respect to the subject matter
hereof and referenced herein, supersede and terminate any prior agreements
between the parties (written or oral). This Agreement may not be altered or
amended except by an instrument in writing signed by all parties hereto.
15.10 COUNTERPARTS. This Agreement may be signed in
any number of counterparts with the same effect as if the signatures on each
such counterpart were on the same instrument.
15.11 CONSTRUCTION. The Section headings of this
Agreement are for convenience only and in no way modify, interpret or construe
the meaning of specific provisions of the Agreement. As used herein, the
neuter gender shall also denote the masculine and feminine, and the masculine
gender shall also denote the neuter and feminine, where the context so permits,
and "knowledge" of a party means only the actual knowledge and awareness of the
executive officers of such party.
15.12 SCHEDULES AND EXHIBITS. The Schedules and
Exhibits to this Agreement are a material part of this Agreement.
15.13 SEVERABILITY. If any one or more of the
provisions contained in this Agreement should be found invalid, illegal or
unenforceable in any respect, the validity, legality, and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. Any illegal or unenforceable terms shall be deemed to be
void and of no force and effect only to the minimum extent necessary to bring
such term within the provisions of
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applicable law and such term, as so modified, and the balance of this agreement
shall then be fully enforceable.
15.14 CHOICE OF LAW. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware, without regard to the choice of law rules utilized in that
jurisdiction.
15.15 COUNSEL. Each party has been represented by
its own counsel in connection with the negotiation and preparation of this
Agreement and, consequently, each party hereby waives the application of any
rule of law that would otherwise be applicable in connection with the
interpretation of this Agreement, including but not limited to any rule of law
to the effect that any provision of this Agreement shall be interpreted or
construed against the party whose counsel drafted that provision.
15.16 PUBLIC STATEMENTS. Prior to the Closing Date,
neither Seller nor Buyer shall, without the prior written approval of the other
party, make any press release or other public announcement concerning the
transactions contemplated by this Agreement except (i) Seller and Buyer shall
issue a mutually agreeable public announcement press release promptly after the
signing of this Agreement; and (ii) to the extent that either party shall be so
obligated by law, in which case the other party shall be so advised and the
parties shall use their best efforts to cause a mutually agreeable release or
announcement to be issued.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed by a respective duly authorized officer as of the date
first written above.
BUYER:
TROPIC OF KEY WEST, INC.
By: /s/ JOHN RAYL / CEO
------------------------------------
Title: ________________________________
SELLER:
WHITE BROADCASTING
By: J LARRY WHITE
----------------------------------
Title: PRESIDENT
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