Multiple Closings. To comply with the FCC’s multiple ownership rules, prior to Closing with respect to KMTV (Omaha), Buyer must consummate the divestiture of two or more radio stations now owned by it that are located in the market in which KMTV is located. Notwithstanding anything in this Agreement to the contrary: (a) the FCC Application shall consist of separate applications (each a “Partial Application”), one for WFTX and KGUN (the “Primary Application”) which shall be filed at the time provided by Section 1.10(a), and one for KMTV (the “KMTV Application”) which shall be filed no later than the date on which the application for FCC consent for the last necessary Omaha radio divestiture is filed; (b) if the Primary Application is granted before the KMTV Application, then the transactions contemplated by this Agreement shall be consummated in two separate Closings (each a “Partial Closing”) as follows: (i) at a Closing (the “First Closing”) on the fifth business day after the date of the FCC Consent with respect to the Primary Application (subject to the satisfaction or waiver of the applicable conditions set forth in Articles 6 or 7 below), (A) Buyer shall pay Seller the Purchase Price less $10,000,000, and (B) Seller shall convey to Buyer all Station Assets other than the KMTV FCC Licenses; (ii) at a second Closing (the “Second Closing”) on the fifth business day after the date of the FCC Consent with respect to the KMTV Application (subject to the satisfaction or waiver of the applicable conditions set forth in Articles 6 or 7 below), (A) Buyer shall pay Seller the balance of the Purchase Price, and (B) Seller shall convey the KMTV FCC Licenses; and (iii) at the First Closing, (A) the Outside Date (defined below) for KMTV shall be extended to October 15, 2008, provided, however, that if the FCC Consent for KMTV has not been obtained at least five (5) business days prior to October 15, 2008 due to allegations concerning Seller’s licensee qualifications, the Outside Date shall automatically be extended until five (5) business days after the date of the FCC Consent with respect to KMTV, and (B) the parties shall enter into a local programming and marketing agreement with respect to KMTV (the “LMA”) in the form attached hereto as Exhibit A, and (C) Buyer shall provide Seller the rent-free use of those KMTV Station Assets that are necessary for Seller to comply with its obligations under the KMTV FCC Licenses and the LMA during the term thereof (and, if the LMA term ends without an assignment of the KMTV FCC Licenses to Buyer, then such facility use term may be extended by Seller for one year thereafter); and (c) taking into account such multiple closings: (i) the terms “Closing,” “Closing Date,” “FCC Application” and “FCC Consent” shall mean, and refer separately to, the applicable Partial Closing, the date on which such Partial Closing occurs (or is to occur), the applicable Partial Application, and the applicable partial FCC Consent, each as the context requires; (ii) with respect to each Partial Closing, the provisions of this Agreement that apply before, at or after a Closing shall apply before, at or after the applicable Partial Closing; (iii) for purposes of Section 9.2(b), with respect to each Partial Closing, the maximum liability amount shall be determined based upon the portion of the Purchase Price paid at such Partial Closing; and (iv) any termination of this Agreement prior to the first Partial Closing shall constitute a termination of this Agreement in its entirety, but after the first Partial Closing, any termination of this Agreement shall constitute a termination only with respect to the Station Assets not subject to any prior Partial Closing, each Partial Closing and each partial payment of the Purchase Price being final and non-rescindable; provided, however, that if after the First Closing and before the Second Closing the main station FCC Licenses for KMTV are revoked or renewal thereof is denied by Final Order (defined below) other than as a result of a breach or default by Buyer under the LMA, then the parties will cooperate in good faith to restore the status quo ante as to KMTV, including but not limited to (a) the reassignment, transfer and conveyance from Buyer to Seller of the Station Assets relating to KMTV that are still in existence as the same were assigned, transferred and conveyed to Buyer at the First Closing; (b) the assumption by Seller and the assignment by Buyer of all liabilities, obligations and commitments of Buyer arising or accruing on or after the date of termination pursuant to the KMTV Station Contracts included in the reconveyed assets, which liabilities, obligations and commitments shall be prorated to the effective date of termination; (c) the offer by Seller of employment to all persons employed by Buyer at KMTV immediately prior to the effective date of termination upon substantially the same terms and conditions and with substantially the same duties and benefits as in effect immediately preceding the effective date of termination; and (d) the repayment by Seller to Buyer of the portion of Purchase Price that is attributable to KMTV.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Journal Communications Inc), Asset Purchase Agreement (Emmis Communications Corp)
Multiple Closings. To comply Notwithstanding Paragraph 1D above or any other provision hereof to the contrary, if the Parties receive or otherwise obtain such Governmental Approvals (referred to herein as the "INITIAL GOVERNMENTAL APPROVALS") as are necessary to consummate a portion of the Investment Transaction but as of such date have not received or - 3 - otherwise obtained all of the Governmental Approvals that are necessary to consummate the entire Investment Transaction (such other Governmental Approvals being referred to herein as the "REMAINING GOVERNMENTAL APPROVALS"), then, subject to the satisfaction of the other conditions to Closing set forth in Section 2 and Section 3 below (or the waiver of any such conditions by the Party or Parties entitled to the benefit thereof), the Parties shall (upon the written request of the Purchasers), within two business days following the receipt of such Initial Governmental Approvals and the satisfaction of such other conditions, consummate such portion of the Investment Transaction as may be consummated without the Remaining Regulatory Approvals and such portion of the Repurchase Transaction as may be consummated with the FCC’s multiple proceeds of such partial Investment Transaction (I.E., the aggregate number of Repurchased Shares and Repurchased Options sold in such portion of the Repurchase Transaction shall equal the number of shares of Preferred Stock purchased in such portion of the Investment Transaction), and shall (subject to the remaining provisions of this Paragraph 1E) consummate the remaining portion of the Investment Transaction and the remaining portion of the Repurchase Transaction in one or more subsequent closings (to the fullest extent then permitted based on the receipt of such Remaining Governmental Approvals) within two business days following receipt of such Remaining Governmental Approvals. For example, if the Parties have received or otherwise obtained all Governmental Approvals, other than those required from the NASD, the Parties shall (upon the written request of the Purchasers) consummate a portion of the Investment Transaction and a portion of the Repurchase Transaction such that (i) the Purchasers shall purchase a number of shares of Preferred Stock (pro rata among the Purchasers based on the total number of shares of Preferred Stock to be purchased by each such Purchaser as set forth on the SCHEDULE OF PURCHASERS attached hereto and at a price per share equal to $36.4324) representing 24.99% of the Company's outstanding Common Stock (assuming conversion of the Existing Preferred and the Preferred Stock to be purchased at such Closing and the repurchase of Repurchased Shares and Repurchased Options as described in clause (ii) below) and (ii) the Company shall apply the proceeds of such portion of the Investment Transaction to repurchase an aggregate number of Repurchased Shares and Repurchased Options (pro rata among the Sellers based on each such Seller's ownership rulesinterest in the Repurchased Shares and Repurchased Options as set forth on the SCHEDULE OF SELLERS attached hereto and at a price per Repurchased Share equal to $36.4324 and, in the case of Repurchased Options, at a price per share of Common Stock issuable upon exercise of such Repurchased Options equal to $36.4324 less the aggregate exercise price associated with such Repurchased Options) equal to the number of shares of Preferred Stock purchased in such Investment Transaction, and the Parties shall consummate the remaining portion of the Investment Transaction and Repurchase Transaction as provided above following receipt of such Remaining Governmental Approvals (in this example, the requisite NASD approval). If there is more than one closing hereunder, then (A) the first such closing shall be referred to in this Paragraph 1E as the "INITIAL CLOSING," (B) the Initial Closing shall not take place prior to January 15, 2004 without the Company's written consent, (C) all references to the "Closing" in this Agreement shall be deemed to be references to the Initial Closing with respect to KMTV (Omaha), Buyer must consummate the divestiture of two or more radio stations now owned by it that are located in the market in which KMTV is located. Notwithstanding anything and all references in this Agreement to the contrary:
(a) the FCC Application shall consist of separate applications (each a “Partial Application”), one for WFTX and KGUN (the “Primary Application”) which "Closing Date" shall be filed at the time provided by Section 1.10(a), and one for KMTV (the “KMTV Application”) which shall deemed to be filed no later than the date on which the application for FCC consent for the last necessary Omaha radio divestiture is filed;
(b) if the Primary Application is granted before the KMTV Application, then the transactions contemplated by this Agreement shall be consummated in two separate Closings (each a “Partial Closing”) as follows:
(i) at a Closing (the “First Closing”) on the fifth business day after references to the date of the FCC Consent with respect to the Primary Application (subject to the satisfaction or waiver of the applicable conditions set forth in Articles 6 or 7 below)Initial Closing, (AD) Buyer for the avoidance of doubt, it is acknowledged and agreed that the Closing Balance Sheet shall pay Seller the Purchase Price less $10,000,000, and (B) Seller shall convey to Buyer all Station Assets other than the KMTV FCC Licenses;
(ii) at a second Closing (the “Second Closing”) on the fifth business day after be prepared as of the date of the FCC Consent with respect to the KMTV Application Initial Closing and (subject to the satisfaction or waiver E) each of the applicable conditions set forth Parties shall use reasonable efforts to take all actions and to do all things necessary, proper or advisable in Articles 6 or 7 below), (A) Buyer shall pay Seller order to consummate and make effective the balance remaining portions of the Purchase Price, and (B) Seller shall convey the KMTV FCC Licenses; and
(iii) at the First Closing, (A) the Outside Date (defined below) for KMTV shall be extended to October 15, 2008, provided, however, that if the FCC Consent for KMTV has not been obtained at least five (5) business days prior to October 15, 2008 due to allegations concerning Seller’s licensee qualifications, the Outside Date shall automatically be extended until five (5) business days after the date of the FCC Consent with respect to KMTV, and (B) the parties shall enter into a local programming and marketing agreement with respect to KMTV (the “LMA”) in the form attached hereto as Exhibit A, and (C) Buyer shall provide Seller the rent-free use of those KMTV Station Assets that are necessary for Seller to comply with its obligations under the KMTV FCC Licenses Investment Transaction and the LMA during the term thereof (and, if the LMA term ends without an assignment of the KMTV FCC Licenses to Buyer, then such facility use term may be extended by Seller for one year thereafter); and
(c) taking into account such multiple closings:
(i) the terms “Closing,” “Closing Date,” “FCC Application” and “FCC Consent” shall mean, and refer separately to, the applicable Partial Closing, the date on which such Partial Closing occurs (or is to occur), the applicable Partial Application, and the applicable partial FCC Consent, each as the context requires;
(ii) with respect to each Partial Closing, the provisions of this Agreement that apply before, at or after a Closing shall apply before, at or after the applicable Partial Closing;
(iii) for purposes of Section 9.2(b), with respect to each Partial Closing, the maximum liability amount shall be determined based upon the portion of the Purchase Price paid at such Partial Closing; and
(iv) any termination of this Agreement prior to the first Partial Closing shall constitute a termination of this Agreement in its entirety, but after the first Partial Closing, any termination of this Agreement shall constitute a termination only with respect to the Station Assets not subject to any prior Partial Closing, each Partial Closing and each partial payment of the Purchase Price being final and non-rescindable; provided, however, that if after the First Closing and before the Second Closing the main station FCC Licenses for KMTV are revoked or renewal thereof is denied by Final Order (defined below) other than as a result of a breach or default by Buyer under the LMA, then the parties will cooperate in good faith to restore the status quo ante as to KMTV, including but not limited to (a) the reassignment, transfer and conveyance from Buyer to Seller of the Station Assets relating to KMTV that are still in existence as the same were assigned, transferred and conveyed to Buyer at the First Closing; (b) the assumption by Seller and the assignment by Buyer of all liabilities, obligations and commitments of Buyer arising or accruing on or after the date of termination pursuant to the KMTV Station Contracts included in the reconveyed assets, which liabilities, obligations and commitments shall be prorated to the effective date of termination; (c) the offer by Seller of employment to all persons employed by Buyer at KMTV immediately prior to the effective date of termination upon substantially the same terms and conditions and with substantially the same duties and benefits as in effect immediately preceding the effective date of termination; and (d) the repayment by Seller to Buyer of the portion of Purchase Price that is attributable to KMTVXxxxxxxxxx Xxxxxxxxxxx.
Appears in 1 contract
Samples: Stock Purchase and Recapitalization Agreement (optionsXpress Holdings, Inc.)
Multiple Closings. To comply with (a) If the FCC’s multiple ownership rulesconditions precedent in Article VII are met for all Facilities other than for certain Acquired Entities which are not a Hospital (the “Associated Business”) whose operations are immaterial to the operation of the associated Hospital, prior to the Closing will proceed with respect to KMTV (Omaha), Buyer must consummate all Acquired Entities other than the divestiture of two or more radio stations now owned by it that are located Associated Business in the market in which KMTV is located. Notwithstanding anything in accordance with this Agreement to the contrary:
(a) the FCC Application shall consist of separate applications (each a “Partial Application”)any such Closing, one for WFTX and KGUN (the “Primary Application”) which shall be filed at the time provided by Section 1.10(a), and one for KMTV (the “KMTV Application”) which shall be filed no later than the date on which the application for FCC consent for the last necessary Omaha radio divestiture is filed;
(b) if the Primary Application is granted before the KMTV Application, then the transactions contemplated by this Agreement shall be consummated in two separate Closings (each a “Partial Closing”). From and after the Partial Closing, HCA and Purchaser shall use commercially reasonable efforts to complete the acquisition of the Associated Business. From and after the Partial Closing HCA shall cooperate in any reasonable arrangement to provide Purchaser the benefit under any and all rights of the Associated Business including but not limited to economic benefits and control of management decisions until the earlier of the date described in clause (ii) below, and such time as follows:
the Associated Business is acquired by Purchaser as described in the remainder of this Section 2.6(a). If, after such Partial Closing and prior to the later of (i) termination of this Agreement and (ii) the date that is 180 days after the Effective Time of such Partial Closing, the conditions precedent in Article VII are subsequently satisfied with respect to any such excluded Acquired Entities, Purchaser shall be obligated to consummate the purchase of and HCA shall be obligated to consummate the sale of all such excluded Acquired Entities for which the conditions in Article VII have been satisfied at a Closing (the “First Closing”) on the fifth in accordance with and subject to Article II. Such Closing will be held within ten business day days after the date satisfaction of the FCC Consent with respect to the Primary Application (subject to the satisfaction or waiver of the applicable conditions set forth in Articles 6 VII and VIII with respect to such Acquired Entities, or 7 below)such other date as may be mutually agreed upon by the parties hereto. Such Closing will take place without regard to whether the conditions in Article VII have been satisfied for all such excluded Acquired Entities.
(b) In the event that (i) the parties conclude in good faith that HCA was not able to deliver the economic benefits of the Associated Business between the Partial Closing and acquisition of the Associated Business by Purchaser or (ii) the Associated Business is not acquired by Purchaser, HCA and Purchaser will negotiate in good faith to determine an appropriate adjustment to the Base Purchase Price as a result of such failure to deliver economic benefit or exclusion of an Acquired Entity.
(i) If the parties are unable to agree upon such a price reduction, (A1) Buyer shall pay Seller the Base Purchase Price less $10,000,000will not be reduced as of the Closing Date, (2) the Partial Closing will not be delayed as a result of the parties’ inability to agree upon such adjustment, (3) the Base Purchase Price will be adjusted after the Closing in accordance with dispute resolution procedures agreed upon by the parties, and (B4) Seller shall convey HCA will be required to Buyer all Station Assets other than pay Purchaser interest on such price adjustment from the KMTV FCC Licenses;date of the Partial Closing to the date of payment of such price adjustment at the rate of interest set forth in Section 2.3(e). Either HCA or Purchaser may initiate such proceedings to determine the adjustment to the Base Purchase Price at any time following the Partial Closing.
(ii) If the parties have not determined the amount of the price adjustment with respect to an excluded Acquired Entity as of the date of a subsequent Closing at a second Closing (which Purchaser acquires such Acquired Entity, the “Second parties will negotiate in good faith to determine the amount of interest to which Purchaser is entitled for having delivered the Base Purchase Price for such Acquired Entity at an earlier Closing”. Such amount will be equal to interest at the rate set forth in Section 2.3(e) on the fifth business day after portion of the Base Purchase Price attributable to such Acquired Entity from the date of the FCC Consent with respect to Partial Closing until the KMTV Application (subject to the satisfaction or waiver date of the applicable conditions set forth in Articles 6 or 7 below)subsequent Closing. If the parties are unable to agree upon such amount, (A1) Buyer shall pay Seller the balance Closing for the Acquired Entity will not be delayed as a result of the Purchase Priceparties’ inability to agree upon such amount, and (B2) Seller shall convey the KMTV FCC Licenses; andamount of such interest payment will be determined after the Closing in accordance with dispute resolution procedures agreed upon by the parties. Either HCA or Purchaser may initiate such proceedings to determine the adjustment to the Base Purchase Price at any time following the Partial Closing.
(iii) at the First Closing, (A) the Outside Date (defined below) for KMTV shall be extended to October 15, 2008, provided, however, that if the FCC Consent for KMTV has not been obtained at least five (5) business days prior to October 15, 2008 due to allegations concerning Seller’s licensee qualifications, the Outside Date shall automatically be extended until five (5) business days after the date of the FCC Consent with respect to KMTV, and (B) If the parties shall enter into a local programming and marketing agreement with respect have determined the adjustment to KMTV (the “LMA”) in the form attached hereto as Exhibit A, and (C) Buyer shall provide Seller the rent-free use of those KMTV Station Assets that are necessary for Seller Base Purchase Price applicable to comply with its obligations under the KMTV FCC Licenses and the LMA during the term thereof an excluded Acquired Entity (and, if such adjustment shall have been determined after the LMA term ends without an assignment of the KMTV FCC Licenses to Buyer, then such facility use term may be extended by Seller for one year thereafter); and
(c) taking into account such multiple closings:
(i) the terms “Closing,” “Closing Date,” “FCC Application” and “FCC Consent” shall mean, and refer separately to, the applicable Partial Closing, HCA shall have paid Purchaser the date on which such Partial Closing occurs amount due under clause (or is to occurA), above, in respect of such excluded Acquired Entity), at any subsequent Closing of the applicable Partial Application, and the applicable partial FCC Consent, each as the context requires;
(ii) with respect sale of such Acquired Entity to each Partial ClosingPurchaser, the provisions of this Agreement that apply before, at or after a Closing shall apply before, at or after the applicable Partial Closing;
(iii) for purposes of Section 9.2(b), with respect to each Partial Closing, the maximum liability amount shall be determined based upon the portion of the Base Purchase Price paid at for such Partial Closing; and
(iv) any termination of this Agreement prior to Acquired Entity will be the first Partial Closing shall constitute a termination of this Agreement in its entirety, but after the first Partial Closing, any termination of this Agreement shall constitute a termination only with respect to the Station Assets not subject to any prior Partial Closing, each Partial Closing and each partial payment of the Purchase Price being final and non-rescindable; provided, however, that if after the First Closing and before the Second Closing the main station FCC Licenses for KMTV are revoked or renewal thereof is denied by Final Order (defined below) other than as a result of a breach or default by Buyer under the LMA, then the parties will cooperate in good faith to restore the status quo ante as to KMTV, including but not limited to (a) the reassignment, transfer and conveyance from Buyer to Seller of the Station Assets relating to KMTV that are still in existence as the same were assigned, transferred and conveyed to Buyer at the First Closing; (b) the assumption by Seller and the assignment by Buyer of all liabilities, obligations and commitments of Buyer arising or accruing on or after the date of termination pursuant to the KMTV Station Contracts included in the reconveyed assets, which liabilities, obligations and commitments shall be prorated to the effective date of termination; (c) the offer by Seller of employment to all persons employed by Buyer at KMTV immediately prior to the effective date of termination upon substantially the same terms and conditions and with substantially the same duties and benefits as in effect immediately preceding the effective date of termination; and (d) the repayment by Seller to Buyer of the portion of Purchase Price that is attributable to KMTVpreviously determined adjustment amount.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lifepoint Hospitals, Inc.)
Multiple Closings. To comply with the FCC’s multiple ownership rules, prior to Closing with respect to KMTV (Omaha), Buyer must consummate the divestiture of two or more radio stations now owned by it that are located in the market in which KMTV is located. Notwithstanding anything in this Agreement to the contrary:
(a) Notwithstanding the FCC Application shall consist provisions of separate applications Section 1.4 and subject to applicable Laws, if, at any time, all of the conditions to Closing set forth in Article VII and Article VIII (each a other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived, except for the requirement to have received any Governmental Approval required to effect the transfer of ownership of any of the Acquired Assets, the China Interests or the Launch Shares (any of the foregoing, the “Partial ApplicationWithheld Assets”), one for WFTX and KGUN then SPX or Purchaser may, by written notice to the other party at any time thereafter (the “Primary ApplicationSection 1.7 Notice”) which ), elect to proceed with the Closing notwithstanding the absence of such Governmental Approval. If a Section 1.7 Notice is delivered, then the Effective Date shall be filed at the time provided by Section 1.10(a), and one for KMTV (the “KMTV Application”) which shall be filed no later than third Business Day following the date on which the application for FCC consent for Section 1.7 Notice is given. At the last necessary Omaha radio divestiture is filed;
(b) if the Primary Application is granted before the KMTV ApplicationClosing, then all of the transactions contemplated by this Agreement shall be consummated in two separate Closings (each a “Partial Closing”) as follows:
except for the transfer of the Withheld Assets with respect to which the requisite Governmental Approval has not been received, and (i) the Cash Purchase Price to be paid pursuant to Section 1.3(c) shall be reduced by the Agreed Amount applicable to such Withheld Assets, (ii) the Estimated Closing Date Cash, the Estimated Closing Date Working Capital, the Estimated Closing Date Indebtedness, the Estimated Closing Date Intragroup Receivables Amount and the Estimated Closing Date Intragroup Payables Amount shall each, as applicable, exclude any estimates with respect to such Withheld Assets, (iii) the Reference Working Capital shall be reduced by the amount of the Agreed Reference Working Capital applicable to such Withheld Assets, and (iv) subject to the last sentence of Section 1.7(e), the Closing Date Statements to be delivered pursuant to Section 1.5 shall not include any amounts related to such Withheld Assets, but all other provisions of Section 1.5 and 1.6 apply.
(b) Following the Closing and until the Termination Date, SPX and Purchaser shall continue to seek, in accordance with Section 6.1, all Governmental Approvals required for the transfer of the Withheld Assets to Purchaser and the provisions of Sections 4.1, 4.2, 4.3 and 4.4 shall remain applicable to the Withheld Assets until the applicable Withheld Asset Closing. If by the Termination Date all Governmental Approvals required for the transfer of any of the Withheld Assets to Purchaser shall not have been obtained, then either SPX or Purchaser may terminate this Agreement with respect to any of the Withheld Assets not theretofore purchased with the same effect as set forth in paragraph (c) of this Section 1.7.
(c) If at a Closing any time (the “First Closing”) on the fifth business day whether prior to or after the date Closing) any of the FCC Consent conditions set forth in Section 7.5, 7.6, 8.5 or 8.6 becomes incapable of being satisfied with respect to the Primary Application (subject transfer of the ownership of any of the Withheld Assets, then this Agreement shall be deemed amended to eliminate the provisions regarding the purchase and sale of such Withheld Assets, and, if the Closing has not yet occurred, then the Cash Purchase Price shall be reduced by the applicable Agreed Amount, the statements to be prepared and delivered pursuant to Sections 1.3(e) and 1.5 shall not include any amounts relating to such Withheld Assets, and the Reference Working Capital shall be reduced by the amount of the Agreed Reference Working Capital applicable to such Withheld Assets. Notwithstanding anything herein to the satisfaction or waiver contrary, if the Closing occurs without the transfer of any of the applicable conditions set forth Withheld Assets, SPX’s continued ownership and operation of the Service Solutions Business conducted by SS China, SS Korea and/or SS India, and/or its continued ownership of the Launch Shares, as applicable, at any time after the Closing shall not constitute a violation of Section 4.5(a).
(d) Within three Business Days after receipt of any required Governmental Approval required to effect the transfer of any Withheld Assets, SPX shall prepare and deliver to Purchaser the good faith estimates referred to in Articles 6 or 7 below), (ASection 1.3(e) Buyer shall pay Seller the Purchase Price less $10,000,000but only with respect to such Withheld Assets, and (B) Seller shall convey to Buyer all Station within three Business Days thereafter, or on such other date as Purchaser and SPX may agree, the closing of the purchase and sale of such Withheld Assets other than the KMTV FCC Licenses;
(ii) at a second Closing (the “Second Withheld Assets Closing”) on shall take place. At the fifth business day after Withheld Assets Closing, SPX shall cause the date transfer to Purchaser of the FCC Consent ownership of such Withheld Assets, and Purchaser shall pay to SPX the Withheld Asset Closing Date Payment Amount with respect to the KMTV Application (subject Withheld Assets being transferred by wire transfer of immediately available U.S. dollars to the satisfaction or waiver of the applicable conditions set forth in Articles 6 or 7 below), (A) Buyer shall pay Seller the balance of the Purchase Price, and (B) Seller shall convey the KMTV FCC Licenses; and
(iii) at the First Closing, (A) the Outside bank accounts designated by SPX. The “Withheld Asset Closing Date (defined below) for KMTV shall be extended to October 15, 2008, provided, however, that if the FCC Consent for KMTV has not been obtained at least five (5) business days prior to October 15, 2008 due to allegations concerning Seller’s licensee qualifications, the Outside Date shall automatically be extended until five (5) business days after the date of the FCC Consent Payment Amount” with respect to KMTV, and (B) the parties Withheld Assets being transferred shall enter into a local programming and marketing agreement with respect mean an amount equal to KMTV (the “LMA”) in the form attached hereto as Exhibit A, and (C) Buyer shall provide Seller the rent-free use of those KMTV Station Assets that are necessary for Seller to comply with its obligations under the KMTV FCC Licenses and the LMA during the term thereof (and, if the LMA term ends without an assignment of the KMTV FCC Licenses to Buyer, then such facility use term may be extended by Seller for one year thereafter); and
(c) taking into account such multiple closings:
(i) the terms “Closing,” “Closing Date,” “FCC Application” and “FCC Consent” shall meanAgreed Amount applicable to such Withheld Assets, and refer separately to, the applicable Partial Closing, the date on which such Partial Closing occurs (or is to occur), the applicable Partial Application, and the applicable partial FCC Consent, each as the context requires;
plus (ii) the amount (if any) by which the Estimated Closing Date Working Capital with respect to such Withheld Assets exceeds the Agreed Reference Working Capital applicable to such Withheld Assets, minus (iii) the amount (if any) by which the Estimated Closing Date Working Capital with respect to such Withheld Assets is less than the Agreed Reference Working Capital with respect to such Withheld Assets, plus (iv) the amount of Estimated Closing Date Cash (if any) with respect to each Partial Closingsuch Withheld Assets, minus (v) the provisions amount of this Agreement that apply before, at or after a any Estimated Closing shall apply before, at or after the applicable Partial Closing;
Date Indebtedness (iiiif any) for purposes of Section 9.2(b), with respect to each Partial Closingsuch Withheld Assets, plus (vi) the maximum liability amount shall be determined based upon the portion of the Purchase Price paid at such Partial Closing; and
Estimated Closing Date Intragroup Receivables Amount (ivif any) any termination of this Agreement prior to the first Partial Closing shall constitute a termination of this Agreement in its entirety, but after the first Partial Closing, any termination of this Agreement shall constitute a termination only with respect to the Station Assets not subject to any prior Partial Closingsuch Withheld Assets, each Partial Closing and each partial payment of the Purchase Price being final and non-rescindable; provided, however, that if after the First Closing and before the Second Closing the main station FCC Licenses for KMTV are revoked or renewal thereof is denied by Final Order minus (defined below) other than as a result of a breach or default by Buyer under the LMA, then the parties will cooperate in good faith to restore the status quo ante as to KMTV, including but not limited to (avii) the reassignment, transfer and conveyance from Buyer Estimated Closing Date Intragroup Payables Amount (if any) with respect to Seller of the Station Assets relating to KMTV that are still in existence as the same were assigned, transferred and conveyed to Buyer at the First Closing; (b) the assumption by Seller and the assignment by Buyer of all liabilities, obligations and commitments of Buyer arising or accruing on or after the date of termination pursuant to the KMTV Station Contracts included in the reconveyed assets, which liabilities, obligations and commitments shall be prorated to the effective date of termination; (c) the offer by Seller of employment to all persons employed by Buyer at KMTV immediately prior to the effective date of termination upon substantially the same terms and conditions and with substantially the same duties and benefits as in effect immediately preceding the effective date of termination; and (d) the repayment by Seller to Buyer of the portion of Purchase Price that is attributable to KMTVsuch Withheld Assets.
Appears in 1 contract
Multiple Closings. To comply with (a) If the FCC’s multiple ownership rulesconditions precedent in Article VII are met for all Facilities other than for certain Acquired Entities which are not a Hospital (the “Associated Business”) whose operations are immaterial to the operation of the associated Hospital, prior to the Closing will proceed with respect to KMTV (Omaha), Buyer must consummate all Acquired Entities other than the divestiture of two or more radio stations now owned by it that are located Associated Business in the market in which KMTV is located. Notwithstanding anything in accordance with this Agreement to the contrary:
(a) the FCC Application shall consist of separate applications (each a “Partial Application”)any such Closing, one for WFTX and KGUN (the “Primary Application”) which shall be filed at the time provided by Section 1.10(a), and one for KMTV (the “KMTV Application”) which shall be filed no later than the date on which the application for FCC consent for the last necessary Omaha radio divestiture is filed;
(b) if the Primary Application is granted before the KMTV Application, then the transactions contemplated by this Agreement shall be consummated in two separate Closings (each a “Partial Closing”). From and after the Partial Closing, LifePoint and Purchaser shall use commercially reasonable efforts to complete the acquisition of the Associated Business. From and after the Partial Closing LifePoint shall cooperate in any reasonable arrangement to provide Purchaser the benefit under any and all rights of the Associated Business including but not limited to economic benefits and control of management decisions until the earlier of the date described in clause (ii) below, and such time as follows:
the Associated Business is acquired by Purchaser as described in the remainder of this Section 2.6(a). If, after such Partial Closing and prior to the later of (i) termination of this Agreement and (ii) the date that is 180 days after the Effective Time of such Partial Closing, the conditions precedent in Article VII are subsequently satisfied with respect to any such excluded Acquired Entities, Purchaser shall be obligated to consummate the purchase of and LifePoint shall be obligated to consummate the sale of all such excluded Acquired Entities for which the conditions in Article VII have been satisfied at a Closing (the “First Closing”) on the fifth in accordance with and subject to Article II. Such Closing will be held within ten business day days after the date satisfaction of the FCC Consent with respect to the Primary Application (subject to the satisfaction or waiver of the applicable conditions set forth in Articles 6 VII and VIII with respect to such Acquired Entities, or 7 below)such other date as may be mutually agreed upon by the parties hereto. Such Closing will take place without regard to whether the conditions in Article VII have been satisfied for all such excluded Acquired Entities.
(b) In the event that (i) the parties conclude in good faith that LifePoint was not able to deliver the economic benefits of the Associated Business between the Partial Closing and acquisition of the Associated Business by Purchaser or (ii) the Associated Business is not acquired by Purchaser, (A) Buyer shall pay Seller LifePoint and Purchaser will negotiate in good faith to determine an appropriate adjustment to the Purchase Price less $10,000,000as a result of such failure to deliver economic benefit or exclusion of an Acquired Entity.
(i) If the parties are unable to agree upon such a price reduction, (1) the Preliminary Payment Amount will not be reduced as of the Closing Date, (2) the Partial Closing will not be delayed as a result of the parties’ inability to agree upon such adjustment, (3) the Purchase Price will be adjusted after the Closing in accordance with dispute resolution procedures agreed upon by the parties, and (B4) Seller shall convey LifePoint will be required to Buyer all Station Assets other than pay Purchaser interest on such price adjustment from the KMTV FCC Licenses;date of the Partial Closing to the date of payment of such price adjustment at the rate of interest set forth in Section 2.3(e) of the SPA. Either LifePoint or Purchaser may initiate such proceedings to determine the adjustment to the Purchase Price at any time following the Partial Closing.
(ii) at a second Closing (If the “Second Closing”) on parties have not determined the fifth business day after amount of the price adjustment with respect to an excluded Acquired Entity as of the date of a subsequent Closing at which Purchaser acquires such Acquired Entity, the FCC Consent with respect parties will negotiate in good faith to determine the KMTV Application (subject amount of interest to which Purchaser is entitled for having delivered the satisfaction or waiver of Purchase Price for such Acquired Entity at an earlier Closing. Such amount will be equal to interest at the applicable conditions rate set forth in Articles 6 or 7 below), (ASection 2.3(e) Buyer shall pay Seller the balance of the Purchase Price, and (B) Seller shall convey the KMTV FCC Licenses; and
(iii) at the First Closing, (A) the Outside Date (defined below) for KMTV shall be extended to October 15, 2008, provided, however, that if the FCC Consent for KMTV has not been obtained at least five (5) business days prior to October 15, 2008 due to allegations concerning Seller’s licensee qualifications, the Outside Date shall automatically be extended until five (5) business days after the date of the FCC Consent with respect to KMTV, and (B) the parties shall enter into a local programming and marketing agreement with respect to KMTV (the “LMA”) in the form attached hereto as Exhibit A, and (C) Buyer shall provide Seller the rent-free use of those KMTV Station Assets that are necessary for Seller to comply with its obligations under the KMTV FCC Licenses and the LMA during the term thereof (and, if the LMA term ends without an assignment of the KMTV FCC Licenses to Buyer, then such facility use term may be extended by Seller for one year thereafter); and
(c) taking into account such multiple closings:
(i) the terms “Closing,” “Closing Date,” “FCC Application” and “FCC Consent” shall mean, and refer separately to, the applicable Partial Closing, the date SPA on which such Partial Closing occurs (or is to occur), the applicable Partial Application, and the applicable partial FCC Consent, each as the context requires;
(ii) with respect to each Partial Closing, the provisions of this Agreement that apply before, at or after a Closing shall apply before, at or after the applicable Partial Closing;
(iii) for purposes of Section 9.2(b), with respect to each Partial Closing, the maximum liability amount shall be determined based upon the portion of the Purchase Price paid at attributable to such Partial Closing; and
(iv) any termination Acquired Entity from the date of this Agreement prior to the first Partial Closing shall constitute a termination of this Agreement in its entirety, but after until the first Partial Closing, any termination of this Agreement shall constitute a termination only with respect to the Station Assets not subject to any prior Partial Closing, each Partial Closing and each partial payment date of the Purchase Price being final and non-rescindable; providedsubsequent Closing. If the parties are unable to agree upon such amount, however, that if after (1) the First Closing and before for the Second Closing the main station FCC Licenses for KMTV are revoked or renewal thereof is denied by Final Order (defined below) other than Acquired Entity will not be delayed as a result of a breach the parties’ inability to agree upon such amount, and (2) the amount of such interest payment will be determined after the Closing in accordance with dispute resolution procedures agreed upon by the parties. Either LifePoint or default by Buyer under Purchaser may initiate such proceedings to determine the LMA, then adjustment to the Purchase Price at any time following the Partial Closing. If the parties will cooperate have determined the adjustment to the Purchase Price applicable to an excluded Acquired Entity (and, if such adjustment shall have been determined after the Partial Closing, LifePoint shall have paid Purchaser the amount due under clause (A), above, in good faith to restore the status quo ante as to KMTVrespect of such excluded Acquired Entity), including but not limited to (a) the reassignment, transfer and conveyance from Buyer to Seller at any subsequent Closing of the Station Assets relating sale of such Acquired Entity to KMTV that are still in existence as Purchaser, the same were assigned, transferred and conveyed to Buyer at the First Closing; (b) the assumption by Seller and the assignment by Buyer of all liabilities, obligations and commitments of Buyer arising or accruing on or after the date of termination pursuant to the KMTV Station Contracts included in the reconveyed assets, which liabilities, obligations and commitments shall be prorated to the effective date of termination; (c) the offer by Seller of employment to all persons employed by Buyer at KMTV immediately prior to the effective date of termination upon substantially the same terms and conditions and with substantially the same duties and benefits as in effect immediately preceding the effective date of termination; and (d) the repayment by Seller to Buyer of the portion of Purchase Price that is attributable to KMTVfor such Acquired Entity will be the previously determined adjustment amount.
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Multiple Closings. To comply with If the FCC’s multiple ownership rules, prior conditions to Closing contained in Article 8 have been satisfied or waived (by the Party for whose benefit the condition is imposed) other than obtaining any approval required pursuant to the ICA and the Australian Required Consents, then a partial Closing of the Foreign Sale Transaction with respect to KMTV all of the Foreign Equity Interests (Omaha), Buyer must consummate the divestiture of two or more radio stations now owned by it that are located in the market in which KMTV is located. Notwithstanding anything in this Agreement to the contrary:
(a) the FCC Application shall consist of separate applications (each a “Partial Application”), one for WFTX and KGUN (the “Primary Application”) which shall be filed at the time provided by Section 1.10(a), and one for KMTV (the “KMTV Application”) which shall be filed no later other than the date on which Canadian Equity Interests and the application for FCC consent for Australian Equity Interests) and the last necessary Omaha radio divestiture is filed;
(b) if Closing of the Primary Application is granted before the KMTV Application, then the transactions contemplated by this Agreement shall be consummated in two separate Closings (each a “Partial Closing”) as follows:
(i) at a Closing U.S. Sale Transaction (the “First Closing”) will occur in accordance with the terms and conditions of this Agreement, and the additional provisions contained in this Section 2.4 will apply.
(a) At the First Closing, Buyer will pay to Seller the U.S. Consideration and the Foreign Consideration other than the portion of the Foreign Consideration attributable to the Canadian Equity Interests and the Australian Equity Interests as specified on Schedule 2.
(b) At the fifth business day First Closing, Seller will sell and transfer to Buyer, and Buyer will purchase from Seller, all of the Company Equity Interests and all of the Foreign Equity Interests other than the Canadian Equity Interests and the Australian Equity Interests.
(c) The Canadian Equity Interests will be retained by TLL after the date First Closing (the “Canadian Retained Assets”) and will be sold to Buyer in accordance with the terms and conditions of this Agreement once any approval required under the FCC Consent ICA has been obtained.
(d) At the First Closing, Seller and Buyer will enter into a Management Agreement with respect to the Primary Application Canadian Retained Assets in the form attached as Exhibit G.
(subject e) After the First Closing, Buyer and Seller will continue to use their respective commercially reasonable efforts to obtain any approval required under the ICA in order to sell and transfer the Canadian Equity Interests to Buyer and to obtain the Australian Consents as promptly as practicable, and the covenants and agreements of Buyer and Seller under this Agreement will be fully applicable in seeking such approval and consents after the First Closing.
(f) Upon receipt of the required approval under the ICA, the Closing will occur with respect to the satisfaction Canadian Equity Interests (the “Canadian Closing”) two Business Days after the date that the required ICA approval is obtained or waiver of such other date mutually agreed by Seller and Buyer, and Buyer and Seller will take all actions necessary and appropriate on their parts to proceed to the applicable Canadian Closing on the terms and conditions set forth in Articles 6 or 7 below), (A) Buyer shall pay Seller the Purchase Price less $10,000,000, and (B) Seller shall convey to Buyer all Station Assets other than the KMTV FCC Licenses;
(ii) at a second Closing (the “Second Closing”) on the fifth business day after the date of the FCC Consent with respect to the KMTV Application (subject to the satisfaction or waiver of the applicable conditions set forth in Articles 6 or 7 below), (A) Buyer shall pay Seller the balance of the Purchase Price, and (B) Seller shall convey the KMTV FCC Licenses; and
(iii) at the First Closing, (A) the Outside Date (defined below) for KMTV shall be extended to October 15, 2008, provided, however, that if the FCC Consent for KMTV has not been obtained at least five (5) business days prior to October 15, 2008 due to allegations concerning Seller’s licensee qualifications, the Outside Date shall automatically be extended until five (5) business days after the date of the FCC Consent with respect to KMTV, and (B) the parties shall enter into a local programming and marketing agreement with respect to KMTV (the “LMA”) in the form attached hereto as Exhibit A, and (C) Buyer shall provide Seller the rent-free use of those KMTV Station Assets that are necessary for Seller to comply with its obligations under the KMTV FCC Licenses and the LMA during the term thereof (and, if the LMA term ends without an assignment of the KMTV FCC Licenses to Buyer, then such facility use term may be extended by Seller for one year thereafter); and
(c) taking into account such multiple closings:
(i) the terms “Closing,” “Closing Date,” “FCC Application” and “FCC Consent” shall mean, and refer separately to, the applicable Partial Closing, the date on which such Partial Closing occurs (or is to occur), the applicable Partial Application, and the applicable partial FCC Consent, each as the context requires;
(ii) with respect to each Partial Closing, the provisions of this Agreement that apply before, at or after a Closing shall apply before, at or after the applicable Partial Closing;
(iii) for purposes of Section 9.2(b), with respect to each Partial Closing, the maximum liability amount shall be determined based upon the portion of the Purchase Price paid at such Partial Closing; and
(iv) any termination of this Agreement prior to the first Partial Closing shall constitute a termination of this Agreement in its entirety, but after the first Partial Closing, any termination of this Agreement shall constitute a termination only with respect to the Station Assets not subject to any prior Partial Closing, each Partial Closing and each partial payment of the Purchase Price being final and non-rescindableAgreement; provided, however, that if after a Section 116 Certificate has not been obtained on or prior to the First date on which the Canadian Closing and before would otherwise occur pursuant to the Second Closing the main station FCC Licenses for KMTV are revoked or renewal thereof is denied by Final Order (defined below) other than as a result terms of a breach or default by Buyer under the LMAthis Section 2.4, then the parties Canadian Closing will cooperate in good faith to restore be delayed until the status quo ante as to KMTV, including but not limited to (a) the reassignment, transfer and conveyance from Buyer to Seller first Business Day of the Station Assets relating next succeeding calendar month if requested by Seller.
(g) Upon receipt of all of the Australian Required Consents, the Closing will occur with respect to KMTV the Australian Equity Interests (the “Australian Closing”) two Business Days after the date that the Australian Required Consents are still obtained or such other date as mutually agreed by Seller and Buyer, and Buyer and Seller will take all actions necessary and appropriate on their parts to proceed to the Australian Closing on the terms and conditions set forth in existence as this Agreement.
(h) If this Section 2.4 becomes applicable, then the same were assigned, transferred and conveyed following provisions will apply:
(i) All references to Buyer at the “Closing” will mean the First Closing; (b) , the assumption by Seller and Canadian Closing or the assignment by Buyer of all liabilitiesAustralian Closing, obligations and commitments of Buyer arising or accruing on or after the date of termination pursuant to the KMTV Station Contracts included in the reconveyed assets, which liabilities, obligations and commitments shall be prorated to the effective date of termination; (c) the offer by Seller of employment to all persons employed by Buyer at KMTV immediately prior to the effective date of termination upon substantially the same terms and conditions and with substantially the same duties and benefits as in effect immediately preceding the effective date of termination; and (d) the repayment by Seller to Buyer of the portion of Purchase Price that is attributable to KMTVappropriate.
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