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EXHIBIT 10.7
EXECUTION COPY
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into as of
this 12th day of August, 1997 by and among Ranger Holdings Corp. a Delaware
corporation ("Ranger"), LIN Television Corporation, a Delaware corporation
("LIN"), LIN Broadcasting Corporation, a Delaware corporation ("Broadcasting"),
LIN Michigan Broadcasting Corporation, a Michigan corporation ("Michigan") and
LCH Communications, Inc., a Delaware corporation ("LCH"). LCH, Broadcasting and
Michigan are hereinafter collectively referred to as "Seller" or "Sellers".
WHEREAS, contemporaneously with the execution of this Agreement,
Ranger, Ranger Acquisition Company, a Delaware corporation, and a wholly-owned
subsidiary of Ranger, and LIN are entering into an Agreement and Plan of Merger
(the "Merger Agreement");
WHEREAS, Seller is the owner and licensee of television broadcast
station WOOD-TV, together with certain auxiliary facilities (the "Station"),
together with certain local marketing agreement rights and other auxiliary
facilities (the "LMA Station") and has an option to acquire television broadcast
station WOTV; the operations of the Station as currently conducted and Seller's
provision of services to the LMA Station being referred to herein as the
"Business";
WHEREAS, Ranger is unwilling to enter into this Agreement (and effect
the transactions contemplated hereby) unless LIN has waived its right of first
refusal with respect to the purchase of the Station and the LMA Station, and has
agreed to continue to provide consulting services to the Station and the LMA
Station from the date hereof until the Closing Date, and LIN has agreed to
provide such waiver and agreement;
WHEREAS, Broadcasting has an option to purchase the LMA Station (the
"Option");
WHEREAS, Ranger desires to purchase all the Assets (as hereinafter
defined) and to receive the assignment of the Option from Seller if the Merger
is consummated, all in accordance with and subject to the terms and conditions
hereinafter set forth;
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WHEREAS, LIN desires to purchase all the Assets and to receive an
assignment of the Option from Seller, if the Merger is not consummated, all in
accordance with and subject to the terms and conditions hereinafter set forth;
WHEREAS, Seller desires to sell and transfer the Assets, and to assign
the Option, to Ranger or LIN, as the case may be, as more particularly set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE 1
DEFINITIONS AND REFERENCES
Capitalized terms used herein without definition shall have the
respective meanings assigned thereto in Annex I attached hereto and incorporated
herein for all purposes of this Agreement (such definitions to be equally
applicable to both the singular and plural forms of the terms defined). Unless
otherwise specified, all references herein to "Articles" or "Sections" are to
Articles or Sections of this Agreement. If the Merger Agreement is not
terminated prior to the Effective Time (as defined in the Merger Agreement), the
term "Buyer" shall mean, and apply to, Ranger. If the Merger Agreement is
terminated prior to the Effective Time for any reason whatsoever, the term
"Buyer" shall mean, and shall apply to, LIN. All covenants, agreements,
liabilities and obligations of Parent and LIN as set forth in this Agreement are
several and not joint.
ARTICLE 2
SALE AND PURCHASE OF ASSETS; ASSUMPTION OF LIABILITIES
SECTION 2.1 ASSET SALE AND PURCHASE OF ASSETS. Subject to the terms
and conditions hereof and in reliance upon the representations, warranties and
agreements contained herein, at the Closing, Seller shall sell, assign,
transfer, convey and deliver to Buyer, and Buyer shall purchase, acquire, pay
for and accept from Seller at the Closing, all of Seller's right, title and
interest in, to and under the Station and all of Seller's rights in respect of
the LMA Station and the Option, and all real, personal and mixed assets, rights,
benefits and privileges, both tangible and intangible, owned, leased, used, or
held for use by Seller in connection with the Business (collectively, the
"Assets"); but excluding the Excluded Assets described in Section 2.2.
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The Assets shall include, without limitation, all of Seller's right,
title and interest in, to and under the following:
(a) FCC Licenses. All licenses, permits and other authorizations
issued by the FCC to Seller for the operation of the Station, including the
right to use the call letters "WOOD-TV" (the "FCC Licenses"), including without
limitation those listed in Schedule 2.1 (a), and all applications therefor,
together with any renewals, extensions or modifications thereof and additions
thereto.
(b) Real Property Interests. (i) All rights of Seller, including any
prepaid rent, security deposits and options to renew or purchase in connection
therewith, in the leased real property listed on Schedule 2.1 (b), together
with, to the extent owned or leased by Seller, all buildings, fixtures and
improvements erected thereon (collectively, the "Leased Premises") and (ii) all
right, title and interest of Seller in the owned real property listed on
Schedule 2.1 (b), together with all buildings, fixtures and improvements erected
thereon, and all easements and rights-of-way and other appurtenances thereto
(collectively, the "Real Property").
(c) Tangible Personal Property. The furniture, fixtures, furnishings,
machinery, computers, equipment, inventory, supplies, antenna installations,
towers, transmitters, generators, office materials and other tangible property
of every kind and description maintained, owned, leased or otherwise used by
Seller in connection with the Business, including without limitation those items
set forth and described in Schedule 2.1 (c), as well as all replacements thereof
and additions thereto.
(d) Intellectual Property. The service marks, copyrights, franchises,
software, licenses (other than the FCC Licenses), trademarks, trade names,
jingles, commercials, other promotional material, slogans, logotypes and other
similar intangible assets maintained, owned, used, held for use or otherwise
held by Seller in connection with the Business (including any and all
applications, registrations, extensions and renewals relating thereto) (the
"Intellectual Property"), and all of the rights, benefits and privileges
associated therewith.
(e) Program Contracts. The program licenses and contracts, under which
Seller is authorized to broadcast programs on the Station, listed on Schedule
2.1 (e), including (a) all cash and non-cash (barter) program licenses and
contracts, and (b) any other such program contracts that are entered into
between the date of this Agreement and the Closing Date in accordance with the
terms of this Agreement (collectively, the "Program Contracts").
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(f) Trade-out Agreements. All contracts and agreements (excluding
Program Contracts) pursuant to which Seller has sold, traded or bartered
commercial air time on the Station in consideration for any property or services
in lieu of or in addition to cash, including, without limitation, contracts
under which commercial air time availability within a particular program is
exchanged for the provision of such program, listed on Schedule 2.1 (f)
(collectively, the "Trade-out Agreements").
(g) Employment Contracts. The employment agreements and talent
contracts and all Cash Flow Growth Participation Agreements, and any rights,
privileges and benefits thereunder, held by the Station listed on Schedule 2.1
(g) (collectively the "Employment Agreements").
(h) Operating Contracts. The broadcast time sales agreements, network
affiliation agreements and national and local advertising representation
agreements for the Station listed on Schedule 2.1 (h), together with all
contracts and agreements that will be entered into between the date of this
Agreement and the Closing Date in accordance with the terms of this Agreement.
(i) LMA Station. The Programming Agreement, a copy of which is
provided as Schedule 2.1 (i), and any other contracts and agreements relating to
the operation of the LMA Station (the WOTV Contracts").
(j) Name. All rights to the name "WOOD-TV" or any logo or variation
thereof and the goodwill associated therewith.
(k) Prepaid Items. All deposits made by the Station and prepaid
expenses of the Station, including, without limitation, those set forth and
described in Schedule 2.11(k).
(l) Vehicles. The automotive equipment and motor vehicles maintained,
owned, leased or otherwise used by Seller in connection with the business and
operations of the Station and the LMA Station, including those referred to in
Schedule 2.1 (c).
(m) Files and Records. All engineering, business and other books,
papers, logs, files and records pertaining to the Business, including without
limitation all ratings reports, advertising customer lists, all sales
advertising materials and any information relating to Taxes imposed on the
Assets, but not the articles of incorporation, by-laws, minute books, stock
transfer records, or other corporate records of Seller, or the original
personnel and employment records in relation to the employees of the Business.
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(n) Auxiliary Facilities. The translators, earth stations, and other
auxiliary facilities, and all applications therefor owned, leased or otherwise
used by Seller in connection with the Business.
(o) Permits and Licenses. All permits, approvals, orders
authorizations, consents, licenses, certificates, franchises, exemptions of, or
filings or registrations with, any court or Governmental Authority (other than
the FCC) in any jurisdiction, which have been issued or granted to or are owned
or used by Seller in connection with the Business and all pending applications
therefor.
(p) Accounts Receivable. All Accounts Receivable arising out of the
Business.
(q) Cash and Bank Accounts. Subject to the provisions of Section 2.2
(a), all cash and cash equivalents and all bank and lock box accounts pertaining
to the Business.
(r) Rights and Claims. To the extent they are transferable, all of the
rights, claims, credits, causes of action or rights of set-off of Seller against
third parties to the extent relating to or affecting the Assets, the Business or
the Assumed Liabilities.
(s) Warranties. To the extent they are transferable, all vendors',
suppliers', manufacturers' and contractors' warranties, representations and
guaranties in respect of any Asset.
To the extent any of the assets described in Sections 2.1 (r) and 2.1
(s) are not transferable, Seller shall cooperate with Buyer to obtain all
approvals, consents or waivers necessary to convey such Assets to Buyer, and at
the request of Buyer, cooperate with Buyer in any reasonable and lawful
arrangements designed to provide the benefit of such Assets to Buyer. Buyer
shall reimburse Seller for any reasonable out of pocket expenses incurred in
seeking to provide such benefits.
SECTION 2.2 EXCLUDED ASSETS.
(a) Cash. Notwithstanding anything to the contrary in this Agreement,
there shall be excluded from the Assets and retained by Seller all cash and cash
equivalents in excess of three (3) million dollars held by Seller such as bank
balances and rights in and to bank accounts, Treasury Bills and other marketable
securities as they exist at the following dates and times: If the Buyer is
Ranger, as of 11:59 P.M. (Eastern Standard Time) on January 1, 1998. If the
Buyer is LIN, as of 11:59 P.M. (Eastern Standard Time) March 1,
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1998. As used herein the term "Accretion Date" shall mean either January 1, 1998
if Buyer is Ranger or March 1, 1998 if Buyer is LIN.
(b) Other Assets. Notwithstanding anything to the contrary in this
Agreement, there shall be excluded from the Assets and retained by Seller, to
the extent in existence at 11:59 P.M. (Eastern Standard Time) on the date
immediately preceding the Closing Date, the following assets (collectively,
these assets and the assets excluded pursuant to Section 2.2 (a) are referred to
as the "Excluded Assets"):
(i) Insurance. All contracts of insurance and all insurance plans and
the assets thereof owned or procured by Seller or Seller's Affiliates.
(ii) Employee Plans and Assets. All Plans, Benefit Arrangements,
Qualified Plans and Welfare Plans and the assets thereof, other than those
agreements listed or described on Schedule 2.1 (g).
(iii) Personal Property Disposed Of. All tangible personal property
disposed of or consumed in the Ordinary Course of Business as permitted by this
Agreement.
(iv) Right to Income Tax Refunds. Any and all claims of Seller with
respect to any Income Tax refunds for any period, or any portion of any period,
ending on or prior to the applicable Accretion Date.
(v) Certain Books and Records. All of (a) Seller's corporate minute
books, stock transfer books, corporate records and corporate seals, and
originals of account books of original entry, (b) all of Seller's original
personnel and employment records in relation to the employees of the Business;
(c) all records prepared by or on behalf of Seller in connection with the sale
of the Station, and (d) all records and documents relating to any Excluded
Assets.
(vi) Rights Under this Agreement. All of Seller's rights under or
pursuant to this Agreement.
(vii) Securities. All capital stock or other securities (other than
cash equivalent marketable securities) of Seller.
SECTION 2.3 PURCHASE PRICE. For and in consideration of the
conveyances and assignments described herein, and in addition to the assumption
of Liabilities as set forth in Section 2.6, Buyer agrees to pay to Seller, and
Seller agrees to accept from Buyer, an
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amount equal to one hundred twenty five million, five hundred thousand dollars
($125,500,000), plus any additional amounts payable in accordance with Section
2.5, and a reimbursement for any cash contributed to the Business by Seller
subsequent to the Accretion Date pursuant to Section 7.1 (g)(iii), plus a
further additional amount at the Applicable Rate (as defined in Section 2.5)
from the date of contribution of such cash (collectively, the "Purchase Price").
The Purchase Price shall be payable as described in Section 2.4.
SECTION 2.4 PAYMENT OF PURCHASE PRICE; ALLOCATION. Buyer shall deliver
the Purchase Price to Seller at the Closing by wire transfer of immediately
available federal funds to an account which will be identified by Seller not
less than two (2) days prior to the Closing Date. The Purchase Price (including
the amount of the Assumed Liabilities) shall be allocated among the Assets based
on the value of such Assets in accordance with Section 1060 of the Code. Each
party shall reflect such allocation on their forms filed under Section 1060 of
the Code and shall file all Tax returns and reports in a manner consistent with
such allocation.
SECTION 2.5 ADDITIONAL AMOUNTS. If the Closing shall occur on a date
after January 1, 1998 for any reason other than a breach by the Seller of any of
its representations or warranties contained herein or a failure by the Seller to
perform any of its obligations hereunder, then, at the Closing, the amount of
cash to which the Seller shall become entitled pursuant to Section 2.3 shall be
increased by an additional amount equal to $125,500,000 multiplied by a fraction
(A) the numerator of which shall be equal to the Applicable Rate (as defined
below) multiplied by the number of days from and including: (a) if the Buyer is
Ranger, January 1, 1998; or (b) if the Buyer is LIN, March 1, 1998, to but
excluding the date on which the Closing occurs and (B) the denominator of which
shall be 365. For purposes of this Section 2.5, the term "Applicable Rate" shall
mean a rate of 8% per annum.
SECTION 2.6 ASSUMPTION OF LIABILITIES.
(a) At the Closing, Buyer shall assume, agree to perform and indemnify
Seller from all Liabilities of Seller relating to the Station and the Assets
relating to or arising out of the Business or operations of the Station or the
Assets in respect of the period prior to the Closing Date (except to the extent
such Liabilities constitute Excluded Liabilities) by entering into the
Assumption Agreement. The Liabilities assumed pursuant to this Section 2.6 are
sometimes referred to herein, collectively, as the "Assumed Liabilities".
(b) Buyer shall not assume or be obligated for any, and Seller shall
solely retain, pay, perform, defend and discharge all of the following
liabilities and obligations of Seller, which shall be "Excluded Liabilities" for
purposes of this Agreement:
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(i) any Taxes which arise from the operation of the Business or the
ownership of the Assets prior to the Closing Date;
(ii) any liability or obligation of Seller in respect of indebtedness
for borrowed money, or any obligation to Seller or its Affiliates, except as
expressly provided by this Agreement or disclosed in the Schedules hereto;
(iii) any costs and expenses incurred by Seller incident to its
negotiation and preparation of this Agreement;
(iv) any liabilities or obligations, whenever arising, related to,
associated with or arising out of the Plans, Benefit Arrangements, Qualified
Plans and Welfare Plans;
(v) any Liability arising under the Assumed Contracts after the
Closing Date which is attributable to any improper action or failure to act by
Seller in accordance with the terms of such Assumed Contracts prior to the
Closing Date, except to the extent reflected as a Liability on the June 30, 1997
balance sheet included in the Financial Statements, or any Liability arising as
a result of the transfer or assignment thereof to Buyer without any consent
required by the terms thereof, unless and to the extent, in each case, such
Liability is reflected on the Financial Statements; and
(vi) any Liabilities in respect of the claims, suits, proceedings or
investigations described in Schedule 3.24; or
(vii) any Liability for which Sellers have indemnified Buyer pursuant
to Section 12.2(e).
ARTICLE 3
REPRESENTATIONS AND WARRANTIES BY SELLER
LCH, Michigan and Broadcasting jointly represent and warrant to Ranger
and LIN as set forth below. LCH, Michigan and Broadcasting make no
representations or warranties except as set forth in this Agreement.
Section 3.1 Organization and Standing. LCH, Michigan and Broadcasting
are corporations duly organized, validly existing and in good standing under the
laws of the state set forth in the first paragraph of this Agreement and are
duly qualified to do business as foreign corporations and are in good standing
in each jurisdiction where such qualification is
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necessary, except for those Jurisdictions where the failure to be so qualified
would not, individually or in the aggregate, have a Material Adverse Effect. LCH
and Michigan have the full corporate power and authority to own, lease and
otherwise to hold the Assets, to carry on the Business as now conducted, and to
enter into and perform the terms of this Agreement, the other Seller Documents
and the transactions contemplated hereby and thereby. Broadcasting has the full
corporate power and authority to enter into this Agreement and to assign the
Option.
SECTION 3.2 SUBSIDIARIES AND INVESTMENTS. Sellers do not, directly or
indirectly, (a) own, of record or beneficially, any outstanding voting
securities or other equity interests in any corporation, partnership, joint
venture or other entity which is involved in or relates to the Business (except
that Broadcasting owns all of the outstanding capital stock of LCH and Michigan)
or (b) otherwise control any such corporation, partnership, joint venture or
other entity which is involved in or relates to the Business, except that
Seller's indirect parent corporation beneficially owns shares of common stock of
LIN.
SECTION 3.3 AUTHORIZATION. The execution, delivery and performance of
this Agreement and of the other Seller Documents, and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary action of the board of directors of each Seller and
by any other necessary corporate or shareholder actions of each Seller or its
Affiliates (none of which actions has been modified or rescinded and all of
which actions are in full force and effect). This Agreement has been duly
executed and delivered by each Seller and constitutes, and upon execution and
delivery each other Seller Document will constitute, valid and binding
agreements and obligations of each Seller enforceable against each Seller in
accordance with their respective terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights generally and
by the application of general principles of equity.
SECTION 3.4 COMPLIANCE WITH LAWS. Sellers are in compliance in all
material respects with all Laws applicable to Sellers in connection with the
Assets, to the Assets, to the Station and to the Business. To the Knowledge of
Sellers, the Business is in compliance in all material respects with all Laws
applicable to the Business, and Sellers have not received any notice alleging
that the Business is in violation of any such Laws. To the Knowledge of Sellers,
Sellers possess all material permits, licenses, franchises and other
authorizations (collectively, "Permits") necessary for the conduct of the
Business as currently conducted, all such permits are valid and in full force
and effect and the Business is in compliance with the terms and conditions of
such Permits, except to the extent that any such
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noncompliance, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
SECTION 3.5 ASSETS. Except for leased or licensed Assets (as to which
Seller has a valid leasehold or license interest), Sellers are the owners of,
and have good and marketable title to, the Assets free and clear of any
Encumbrances, except for and subject only to (a) the Permitted Encumbrances, and
(b) those Encumbrances listed in Schedule 3.5. At the Closing, Buyer shall
acquire good and marketable title to, and all of Sellers' right, title and
interest in and to the Assets, free and clear of all Encumbrances, except for
the Permitted Encumbrances. None of Sellers' Affiliates have any right, title or
interest in any real, personal or mixed assets, rights, benefits or privileges,
tangible or intangible, wheresoever located, owned, leased, used, or held for
use in conneCtion with the business and operations of the Station or the LMA
Station, except for any interest any such Affiliate may have in any Excluded
Assets.
SECTION 3.6 FINANCIAL STATEMENTS. Schedule 3.6 contains the unaudited
balance sheets and related income statements of the Business as of and for the
periods ended December 31, 1996 and June 30, 1997 (the "Financial Statements").
The Financial Statements have been prepared in accordance with the policies and
practices of Sellers consistently applied and present fairly in all material
respects the financial position and results of operations of the Business as of
and for the periods ended December 31, 1996 and June 30, 1997. No Seller is
subject to any material Liability with respect- to the Business which is
required to be shown on a balance sheet prepared in accordance with the policies
and practices of Sellers other than Liabilities set forth in the June 30, 1997
balance sheet included in the Financial Statements and Liabilities incurred in
the Ordinary Course of Business after June 30, 1997. Without limiting the
foregoing, such June 30, 1997 balance sheet includes an accrual of not less than
$1,160,257 dollars for amounts payable under the Cash Flow Participation
Agreements.
SECTION 3.7 CONSENTS AND APPROVALS; NO VIOLATIONS.
(a)To the Knowledge of Sellers, the execution and delivery by the
Sellers of this Agreement does not, and the consummation by the Sellers of the
transactions contemplated hereby and compliance by the Seller with the
provisions hereof will not conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or the
loss of a benefit under, or result in the creation of any Encumbrance upon any
of the properties or assets of Sellers or any of their respective subsidiaries
under, (i) any provision of the certificate of incorporation, by-laws or
comparable organization documents
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of Sellers (ii) any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement (other than, with respect to termination, agreements
terminable at will or upon 90 days' or less notice by the terminating party),
instrument, permit, concession franchise or license applicable to Sellers, (iii)
assuming all the consents, filings and registrations referred to in the next
paragraph are made and obtained, any judgment, order decree statute, law,
ordinance, rule or regulation applicable to Sellers or any of their respective
properties or assets, other than, in the case of clause (ii), any such
violation, defaults, rights, losses or liens, that, individually or in the
aggregate, would not reasonable be expected to have a Material Adverse Effect.
(b) No filing or registration with, or authorization, consent or
approval of, any domestic (federal and state) or foreign court, commission,
governmental body, regulatory agency, authority or tribunal (a "Governmental
Entity" is required by or with respect to Sellers or any of their respective
subsidiaries in connection with the execution and delivery of this Agreement by
Sellers or is necessary for the transactions -contemplated by this Agreement,
except (i) applicable filings, if any, pursuant to the provisions of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), (ii) such filings with, and orders of, the Federal Communications
Commission (the "FCC") as may be required under the Communications Act of 1934,
as amended, and the rules and regulations promulgated thereunder (the
"Communications Act"), (iii) such filings as may be required in connection with
statutory provisions and regulations relating to real property transfer gains
taxes and real property transfer taxes, and (iv) such other consents, approvals,
orders, authorizations, registrations, declarations and filings the failure of
which to be obtained or made would not, individually or in the aggregate,
reasonable be expected to have a Material Adverse Effect or -prevent or
materially delay the ability of Buyer to consummate the transaction contemplated
by this Agreement.
SECTION 3.8 BOOKS AND RECORDS. The books and records of Sellers
relating to the Business have been maintained in accordance with good business
practices and applicable legal, regulatory and accounting requirements, reflect
only valid transactions, are complete and correct in all material respects and
accurately reflect in all material respects the basis for the financial position
and results of operations of the Business.
SECTION 3.9 ACCOUNTS RECEIVABLE. All accounts receivable of Sellers
relating to the Business have arisen from bona fide transactions by Sellers in
the Ordinary Course Of Business.
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SECTION 3.10 LICENSES.
(a) The Sellers have all permits, licenses, waivers and authorizations
(other than FCC Licenses, but including licenses, authorizations and
certificates of public convenience and necessity from applicable state and local
authorities), which are necessary for the Sellers to conduct the Business in the
manner in which it is presently being conducted (collectively, "Licenses"),
other than any Licenses the failure of which to have Would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect. The
Sellers are in compliance with the terms of all Licenses (other than FCC
Licenses), except for such failures so to comply which would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
The Sellers have duly performed their respective obligations under such
Licenses, except for such non-performance as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. There is no
pending or, to the Knowledge of the Sellers, threatened application, petition,
objection or other pleading with any Governmental Entity other than the FCC
which challenges or questions the validity of, or any rights of the holder
under, any License (other than an FCC License), except for such applications,
petitions, objections or other pleadings, that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or that are
applicable to the broadcast industry generally.
(b) Except as set forth in Schedule 3.1 0(b) and except as does not
materially adversely affect the operation by the Seller of the Station: (i) the
Seller and those of its subsidiaries that are required to hold FCC Licenses, or
that control FCC Licenses, are financially qualified and, to the Knowledge of
the Seller, are otherwise qualified to hold such FCC Licenses or to control such
FCC Licenses, as the case may be; (ii) the Seller and those of its subsidiaries
that are required to hold FCC Licenses hold such FCC Licenses; (iii) the Seller
is not aware of any facts or circumstances relating to the Seller or any of its
subsidiaries that would prevent the FCC's granting the requisite consent to the
FCC Form 314 Assignment of License Application to be filed with respect to the
transactions contemplated by this Agreement (the "FCC Application"), (iv) the
Seller is in material compliance with all FCC Licenses held by it; and (v) there
is not pending or, to the Knowledge of the Seller, threatened any application,
petition, objection or other pleading with the FCC or other Governmental Entity
which challenges the validity of, or any rights of the holder under, any FCC
License held by Seller except for rule making or similar proceedings of general
applicability to persons engaged in substantial the same business conducted by
the Station.
SECTION 3.11 ORDINARY COURSE. Since June 30, 1997, the Business has
been operated in the Ordinary Course of Business consistent with past practice
and there has been
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no material (i) change in the Business, the Assets or the manner of conducting
the Business, (ii) transaction relating to the Assets or the Business outside of
the Ordinary Course of Business (iii) lien created or assumed with respect to
any of the Assets, except Permitted Encumbrances (iv) liabilities incurred,
individually, or in the aggregate, that could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.12 REAL PROPERTY AND LEASED PREMISES. Seller has made
available to Buyer true, correct and complete of all real property leases with
respect to the Business, including all amendments, modifications and renewals
thereof. There are no parties that have any right of use or occupancy derived
from or granted by Sellers to all or any portion of the Leased Premises.
SECTION 3.13 TAXES. Seller has timely filed, or has had filed on its
behalf, with or has obtained, or has had obtained on its behalf, a filing
extension from the appropriate federal, state, local and foreign governments or
governmental agencies with respect to, all Tax returns required to be filed by
Seller or on behalf of Seller on or prior to the date hereof for all Taxes. All
Taxes shown to be payable on such Tax returns have been paid in full. All
written assessments of Taxes due and payable by, on behalf of or with respect to
Seller, which if unpaid might result in a lien upon any of the Assets after
giving effect to the transactions contemplated hereby, have been paid by or on
behalf of Seller, or are being contested in good faith by appropriate
proceedings. All amounts required to be withheld by Seller from employees for
income taxes, social security and other payroll taxes have been collected and
withheld, and have either been paid to the respective governmental agencies, set
aside in accounts for such purpose, or accrued, reserved against and entered
upon Sellers books and records. None of the Assets is required to be treated as
being owned by a person other than Seller pursuant to Section 168(f)(8) of the
Internal Revenue Code of 1954, as amended and in effect immediately prior to the
enactment of the Tax Reform Act of 1986.
For purposes of this Agreement, the term "Tax" shall mean all taxes,
levies or other like assessments, charges or fees, including, without
limitation, income, gross receipts, excise, value added, real or personal
property, withholding, asset, sales, use, license, payroll, transaction,
capital, business, corporation, employment, net worth and franchise taxes, or
other governmental taxes imposed by or payable to the United States of America
or any State, local or foreign governmental entity, whether computed on a
separate, consolidated, unitary, combined or any other basis; and in each
instance such term shall include any interest, penalties or additions to tax
attributable to any such tax.
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SECTION 3.14 PERSONAL PROPERTY LEASES. Schedule 3.14 contains a list
of each written lease or other agreement or right, under which Seller is lessee
of, or holds or operates, any machinery, equipment, vehicle or other tangible
personal property owned by a third party and used in or relating to the Business
and which is not terminable by Seller without penalty on 30 days' notice or less
and which provides for annual rentals in excess of $50,000.
SECTION 3.15 EMPLOYEES. Schedule 3.15 contains a list of all the
titles of individuals employed by Seller in connection with the Business as of
the date hereof and the then current rate of compensation for such employees.
SECTION 3.16 EMPLOYEE RELATIONS.
(a) Seller has complied in respect of the Business in all material
respects with all applicable laws, rules and regulations which relate to wages,
hours, discrimination in employment and collective bargaining and to the
operation of the Business and is not liable for any arrears of wages or any
taxes or penalties for failure to comply with any of the foregoing.
(b) There is no (i) unfair labor practices charge or complaint against
Seller pending before the National Labor Relations Board, any state labor
relations board or any court or tribunal and, to the Knowledge of Seller, none
is threatened, (ii) strike, slowdown or work stoppage with respect to the
employees of the Business, of which Seller is aware, pending against Seller and,
to the Knowledge of Seller, none is threatened, (iii) written employee grievance
of which Seller has notice pending against Seller and, to the Knowledge of
Seller, none is threatened, (iv) arbitration proceeding arising out of or under
any collective bargaining agreement pending against Seller and, to the Knowledge
of Seller, none is threatened, or (v) pending demand for recognition as the
collective bargaining representative with respect to any employee of the
Business by any labor or group of employees.
SECTION 3.17 CONTRACTS. The Assumed Contracts do not omit any lease,
contract, agreement or understanding that is material to the operation of the
Business. Each of the Assumed Contracts is a valid and binding agreement of the
applicable Seller and, to the Knowledge of Seller, is in full force and effect.
To the Knowledge of Seller, no event or condition has occurred or exists or is
alleged by any of the other parties thereto to have occurred or existed, which
constitutes, or with lapse of time or giving of notice or both might constitute
a material default or breach by the applicable Seller or any other party under
any of the Assumed Contracts. The applicable Seller enjoys peaceful and
undisturbed possession under all leases or licenses with respect to any of the
Assets or under which any
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portion of the Business is operating. No Seller is a party to and the Business
and the Assets are not bound by, any contract, agreement, instrument, lease,
license, arrangement or understanding which has had, or is expected to have, a
Material Adverse Effect.
SECTION 3.18 EMPLOYEE BENEFIT PLANS. Schedule 3.18 lists all "Employee
Benefit Plans", as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and all other employee benefit
arrangements or payroll practices, including, without limitation, severance pay,
sick leave, vacation pay, salary continuation for disability, consulting or
other compensation agreements, retirement, deferred compensation, bonus, stock
purchase, hospitalization, medical insurance, life insurance and scholarship
programs with respect to the Business maintained by Sellers or any of their
affiliates or to which Sellers or any of their affiliates contributed or is
obligated to contribute thereunder with respect to which any Employee
participates (the "Plans"). Copies of the summary plan descriptions related to
the Plans thereto have been made available or delivered to Buyer.
SECTION 3.19 INTELLECTUAL PROPERTY
(a) No person has made, or, to the Knowledge of Seller, threatened to
make, any claims that the operations of the Business are in violation of or
infringe upon any patents, trade secrets, trademarks or trade names, trademark
or trade name registrations, service marks or service xxxx registrations,
copyrights or copyright registrations or any other proprietary or trade rights
of any third party.
(b) There are no actions or proceedings pending or, to the Knowledge
of Seller, threatened, which challenge the right of Seller to make, use or sell
products or services embodying, and, to the Knowledge of Seller, no person is
infringing or otherwise violating, the Intellectual Property.
SECTION 3.20 ENVIRONMENTAL MATTERS.
(a) The following definitions shall apply to the terms listed below
when used in this Agreement:
"Environmental Law" means any U.S. local, county, state and/or federal
law or regulation that governs the existence of or provides a remedy for release
of Hazardous Substances, the protection of persons, natural resources or the
environment, the management of Hazardous Substances, or other activities
involving Hazardous Substances including, without limitation, under CERCLA or
any other similar federal, state, local and/or county
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laws or regulations, in each case as in effect on or prior to the Closing Date
or, with respect to representations and warranties made on the date hereof, on
or prior to the date hereof.
"Environmental Permits" has the meaning set forth in Section 3.20.
"Hazardous Substance" means any substance that is regulated under any
Environmental Law or is deemed by any Environmental Law to be "hazardous,"
"toxic," a "contaminant," "waste," a source of contamination or a pollutant.
"Release" means any releasing, spilling, leaking, discharging,
disposing of, pumping, pouring, emitting, emptying, injecting, leaching, dumping
or allowing to escape.
"Remedial Action" means actions required by Environmental Law to: (i)
clean up, remove, treat or in any other way address Hazardous Substances; and
(ii) prevent the Release, or minimize the further Release, of Hazardous
Substances.
(b) Except as set forth on Schedule 3.20:
(i) To Seller's Knowledge, with respect to the Business, Seller is in
compliance in all material respects with all applicable laws, rules,
regulations, ordinances, decrees, orders, judgments, permits and licenses of or
from governmental bodies, including those relating to the use of the Assets and
operation of the Business.
(ii) To Seller's Knowledge, all material environmental permits,
certificates, licenses, approvals, registrations and authorizations required for
operating the Business ("Environmental Permits") are listed on Schedule 3.20 and
any that are not transferable are so designated. Seller has not received any
written notice that (i) such Environmental Permits are not in full force and
effect or (ii) Seller is not in compliance in all material respects with the
terms of such Environmental Permits.
(iii) To Seller's Knowledge, there are no underground storage tanks or
surface impoundments in, on or under any properties or facilities that are used
or have been used by the Seller for the storage of products or any other
substance, nor to Seller's Knowledge, except as set forth in Schedule 3.20 have
any underground storage tanks or surface impoundments ever been located in, on
or under any such properties or facilities. To Seller's Knowledge, there are no
friable asbestos or equipment owned by the Company containing polychlorinated
biphenyls, located in, on or under-such properties or facilities.
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(iv) To Seller's Knowledge, the transactions contemplated by this
Agreement will not require any governmental approvals under Environmental Law,
except as set forth on Schedules 3.20, including, without limitation, those that
are triggered by sales or transfers of business or real property.
(v) To Seller's Knowledge, the on-site operations of the Business have
not, and do not now, involve the generation, transportation, treatment, recycle
or disposal of Hazardous Substances except for amounts that would qualify
Seller's facilities or operations as a small quantity generator or a
conditionally exempt small quantity generator. (vi) Seller has complied with the
property transfer requirements of M.C.L.A. 324.20116.
Notwithstanding anything contained in this Section 3.20 to the
contrary, (x) no representation or warranty made by Seller in this Section 3.20
shall apply to compliance by Seller with any applicable Environmental Law, it
being expressly understood and agreed that any and all representations and
warranties of Seller with respect to the compliance by Seller with any
applicable Environmental Law are set forth below, (y) Buyer has the option to
perform an environmental audit pursuant to Section 3.20 of this Agreement and
(z) no representation or warranty made by Seller in this Section 3.20 shall
apply to compliance by any such party with respect to any applicable building,
zoning, safety or fire laws, ordinances, resolutions or codes, it being
expressly understood and agreed that any and all representations and warranties
of Seller with respect to such matters are set forth in Schedule 3.20.
SECTION 3.21 ENTIRE BUSINESS; CONDITION OF ASSETS. The Assets, the FCC
License and the Consulting Agreement constitute all of the assets, properties
and rights, together with the services of the employees and the other rights
Buyer will obtain under this Agreement, necessary to conduct the Business in all
respects as currently conducted and there are no material Assets of the Business
that Seller will retain following the Closing. To the Knowledge of Seller, there
are no (i) material structural defects in any of the buildings or other
improvements situated on the Leased Premises or the Real Property or (ii)
building systems, structures, improvements, fixed assets or equipment owned,
leased or used by Seller and required for the conduct of the Business as
currently conducted that are not in all material respects in good condition and
working order, normal wear and tear excepted, and adequate in quality and
quantity for the current normal operation of the Business.
SECTION 3.22 FCC REPORTS. All notices, reports, forms and other
statements required to be filed by Seller with the FCC relating to the Station
and, to the Knowledge of Seller, relating to the LMA Station, have been filed
and complied with in all material respects and are complete and correct in all
material respects as filed.
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SECTION 3.23 BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by and on behalf of the Seller.
SECTION 3.24 LITIGATION. Except as set forth on Schedule 3.24, there
is no litigation, proceeding or investigation pending, or to Seller's Knowledge
threatened, against Seller relating to the Business or the Assets, which if
adversely determined would have a Material Adverse Effect, or, as of the date
hereof, questions the validity of this Agreement or any action to be taken by
Seller in connection with the consummation of the transactions contemplated
hereby or would otherwise prevent or result in a material delay of the
consummation of the transactions contemplated hereby. The Station, the Assets
and to the Knowledge of Sellers, the LMA Station, are not subject to any order,
writ, injunction or decree of any court or Governmental Authority other than
orders of the FCC.
SECTION 3.25 TRANSACTIONS WITH AFFILIATES; SERVICES CONTRACTS. Except
for the Consulting Agreement and the transactions as set forth in Schedule 2.1
(h), Seller is not a party, directly or indirectly, to any contract, lease,
arrangement or transaction which is material to the business or operations of
any Station, whether for the purchase, lease or sale of property, for the
rendition of services or otherwise, with any Affiliate of Seller, or any
officer, director, employee, proprietor, partner or shareholder of Seller.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES BY RANGER AND LIN
Ranger represents and warrants to Seller as follows:
SECTION 4.1 ORGANIZATION AND STANDING. Ranger is a corporation
duly organized, validly existing and in good standing under the laws of the
state set forth in the first paragraph of this Agreement and by the Closing Date
will be duly qualified to do business as a foreign corporation where such
qualification is necessary, except for those jurisdictions where the failure to
be so qualified would not, individually or in the aggregate, have a material
adverse effect on Ranger's ability to perform its obligations under this
Agreement. Ranger has the full corporate power and corporate authority to enter
into and perform the terms of this Agreement and the other Buyer Documents and
to carry out the transactions contemplated hereby and thereby.
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SECTION 4.2 AUTHORIZATION. The execution, delivery and performance of
this Agreement and of the other Buyer Documents, and the consummation of the
transactions contemplated hereby and thereby, have been duly and validly
authorized by all necessary actions of Ranger (none of which actions has been
modified or rescinded and all of which actions are in full force and effect),
including approval of its board of directors. This Agreement has been duly
executed and delivered by Ranger and constitutes, and upon execution and
delivery each such other Buyer Document will constitute, a valid and binding
agreement and obligation of Ranger, enforceable against Ranger in accordance
with its respective terms, except as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights generally and by the
application of general principles of equity.
SECTION 4.3 CONSENTS AND APPROVALS; NO VIOLATIONS.
(a) The execution and delivery by Ranger of this Agreement does not,
and the consummation by Ranger of the transactions contemplated hereby and
compliance by Ranger with the provisions hereof will not, result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or the loss of a benefit under, or result in the creation of any
lien upon any of the properties or assets of Ranger, (i) any provision of the
certificate of incorporation or by-laws of Ranger, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to Ranger or
(iii) assuming all the consents, filings and registrations referred to in the
next sentence are made and obtained, any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Ranger (or any of its affiliates) or
any of its properties or assets, other than, in the case of clause (ii) or
(iii), any such violations, defaults, rights, losses or liens, that,
individually or in the aggregate, would not reasonably be expected to prevent or
result in a third party materially delaying the consummation of the transactions
contemplated herein.
(b) No filing or registration with, or authorization, consent or
approval of, any Governmental Entity is required by or with respect to Ranger
(or any of its affiliates) in connection with the execution and delivery of this
Agreement by Ranger or is necessary for the consummation of the transactions
contemplated by this Agreement, except (i) applicable filings, if any, pursuant
to the HSR Act, (ii) such filings with, and orders of, the FCC as may be
required under the Communications Act, (iii) such filings as may be required in
connection with statutory provisions and regulations relating to real property
transfer gains and real property transfer and (iv) such other consents,
approvals, orders, authorizations, registrations, declarations and filings the
failure of which to be obtained or made would not,
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individually or in the aggregate, reasonably be expected to prevent or result in
a third party materially delaying the consummation of the merger.
SECTION 4.4 BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by and on behalf of Ranger except for the Chase Manhattan Bank and Chase
Securities, Inc., whose fees and expenses will be paid by Ranger in accordance
with Ranger's agreements with such firms.
SECTION 4.5 FCC LICENSES OF RANGER AND AFFILIATES. Ranger and any of
its affiliates that are required to hold FCC Licenses, or that control FCC
Licenses, are financially qualified and, to the Knowledge of Ranger and such
affiliates, are otherwise qualified to hold such FCC Licenses or to control such
FCC Licenses, as the case may be. Ranger is not aware of any facts or
circumstances relating to Ranger or any of its affiliates that would prevent the
FCC's granting the requisite consent to the FCC Application (other than as set
forth in Schedule 4.5) Each broadcast station owned, controlled or operated by
Ranger or any pending or, to the Knowledge of Ranger and its affiliates is in
material compliance with all FCC Licenses held by it. There is not pending or,
to the Knowledge of Ranger and its affiliates, threatened any application,
petition, objection or other pleading with the FCC or other Governmental Entity
which challenges the validity of, or any rights of the holder under, any FCC
License held by Ranger or any of its affiliates, except for rule making or
similar proceedings of general applicability to persons engaged in substantially
the 'same business conducted by the broadcast stations owned, controlled or
operated by Ranger or any of its affiliates.
SECTION 4.6 FCC APPLICATION. To Ranger's Knowledge and except as set
forth in Schedule 4.6, Ranger and its affiliates are qualified under Current FCC
Policy to hold, or control the entities which hold or will hold, the FCC
Licenses currently held or controlled by Seller and to be held by Ranger or any
person under common control with Seller after the Closing. Ranger is not aware
of any facts or circumstances relating to Ranger and its Affiliates that would
under Current FCC Policy prevent or materially delay, a grant of the FCC
Application.
SECTION 4.7 OWNERSHIP AND OPERATIONS OF RANGER. Ranger was formed
solely for the purpose of engaging in the transactions contemplated by this
Agreement and the Merger Agreement. As of the date hereof and as of the
Effective Time, except for obligations or liabilities incurred in connection
with its incorporation or organization and the transactions contemplated by this
Agreement and except for this Agreement and any other agreements or arrangements
contemplated by this Agreement, Ranger has no and will not
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have incurred, directly or indirectly, through any subsidiary or affiliate, any
obligations or liabilities or engaged in any business activities of any type or
kind whatsoever or entered into any agreements or arrangements with any person
or own or lease any real property.
SECTION 4.8 ATTRIBUTABLE INTERESTS. Schedule 4.8 contains a list of
all media properties in the Grand Rapids Designated Market Area in which Ranger
or any of its affiliates have any "attributable interest" as defined in the FCC
rules as of the date hereof.
LIN represents and warrants to Seller as follows:
SECTION 4.9 ORGANIZATION AND STANDING. LIN is a corporation duly
organized, validly existing and in good standing under the laws of the state set
forth in the first paragraph of this Agreement and by the Closing Date will be
duly qualified to do business as a foreign corporation where such qualification
is necessary, except for those jurisdictions where the failure to be so
qualified would not, individually or in the aggregate, have a material adverse
effect on LIN's ability to perform its obligations under this Agreement. LIN has
the full corporate power and corporate authority to enter into and perform the
terms of this Agreement and the other Buyer Documents and to carry out the
transactions contemplated hereby and thereby.
SECTION 4.10 AUTHORIZATION. The execution, delivery and performance of
this Agreement and of the other Buyer Documents, and the consummation of the
transactions contemplated hereby and thereby, have been duly and validly
authorized by all necessary actions of LIN (none of which actions has been
modified or rescinded and all of which actions are in full force and effect),
including approval of its board of directors and approval of a majority of its
independent directors. This Agreement has been duly executed and delivered by
LIN and constitutes, and upon execution and delivery each such other Buyer
Document will constitute, a valid and binding agreement and obligation of LIN,
enforceable against LIN in accordance with its respective terms, except as the
same may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general applicability relating to or affecting creditors'
rights generally and by the application of general principles of equity.
SECTION 4.11 CONSENTS AND APPROVALS; NO VIOLATIONS.
(a) The execution and delivery by LIN of this Agreement does not, and
the consummation by LIN of the transactions contemplated hereby and compliance
by LIN with the provisions hereof will not, result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or
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acceleration of any obligation or the loss of a benefit under, or result in the
creation of any lien upon any of the properties or assets of LIN, (i) any
provision of the certificate of incorporation or by-laws of LIN, (ii) any loan
or credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to LIN or (iii)
assuming all the consents, filings and registrations referred to in the next
sentence are made and obtained, any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to LIN (or any of its affiliates) or
any of its properties or assets, other than, in the case of clause (ii) or
(iii), any such violations, defaults, rights, losses or liens, that,
individually or in the aggregate, would not reasonably be expected to prevent or
result in a third party materially delaying the consummation of the transactions
contemplated herein.
(b) No filing or registration with, or authorization, consent or
approval of, any Governmental Entity is required by or with respect to LIN (or
any of its affiliates) in connection with the execution and delivery of this
Agreement by LIN or is necessary for the consummation of the transactions
contemplated by this Agreement, except (i) applicable filings, if any, pursuant
to the HSR Act, (ii) such filings with, and orders of, the FCC as may be
required under the Communications Act, (iii) such filings as may be required in
connection with statutory provisions and regulations relating to real property
transfer gains and real property transfer and, (iv) such other consents,
approvals, orders, authorizations, registrations, declarations and filings the
failure of which to be obtained or made would not, individually or in the
aggregate, reasonably be expected to prevent or result in a third party
materially delaying the consummation of the merger.
SECTION 4.12 BROKERS. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement.
SECTION 4.13 FCC LICENSES OF LIN AND AFFILIATES. LIN and any of its
affiliates that are required to hold FCC Licenses, or that control FCC Licenses,
are financially qualified and, to the Knowledge of LIN and such affiliates, are
otherwise qualified to hold such FCC Licenses or to control such FCC Licenses,
as the case may be, LIN and any of its affiliates that are required to hold FCC
Licenses hold such FCC Licenses. LIN is not aware of any facts or circumstances
relating to LIN or any of its affiliates that would prevent the FCC's granting
the requisite consent to the FCC Application. Other than as set forth in
Schedule 4.13 each broadcast station owned, controlled or operated by LIN and
its affiliates is in material compliance with all FCC Licenses held by it. There
is not pending or, to the Knowledge of LIN and its affiliates, threatened any
application, petition, objection or other pleading with the FCC or other
Governmental Entity which challenges the
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validity of, or any rights of the holder under, any FCC License held by LIN or
any of its affiliates, except for rule making or similar proceedings of general
applicability to persons engaged in substantially the same business conducted by
the broadcast stations owned, controlled or operated by LIN or any of its
affiliates.
SECTION 4.14 FCC APPLICATION. LIN and its affiliates are legally,
financially and otherwise qualified to hold, or control the entities which hold
or will hold, the FCC Licenses currently held or controlled by the Company or to
be held by LIN or any person under common control after the Effective Time, and
is not aware of any facts or circumstances that might prevent or delay prompt
consent to or waivers for the FCC Application.
ARTICLE 5
COVENANTS AND AGREEMENTS OF SELLER
Seller covenants and agrees with Ranger and LIN as follows:
SECTION 5.1 NEGATIVE COVENANTS. Pending and prior to the Closing,
Seller will not, except in the Ordinary Course of Business, without the prior
consent of Ranger, which consent will not be unreasonably withheld, conditioned,
or delayed, do or agree to do any of the following:
(a) Change in the Business. Make any material change in the Business
or the operations of the Station, except as required by lawful authorities. The
conversion of the Station to digital programming and broadcast format shall not
be deemed to be a material change in the operations of the Station.
(b) Dispositions; Mergers, Cash. Sell, assign, lease or otherwise
transfer or dispose of any of the Assets other than in the Ordinary Course of
Business; or create or suffer to exist any Encumbrance on the Assets, except
Permitted Encumbrances, other than in the Ordinary Course of Business, and with
a book value of not more than $200,000; or remove cash from the Business other
than in connection with the conduct of the Business or as otherwise expressly
permitted under this Agreement; or merge or consolidate with or into any other
entity or enter into any contracts or agreements relating thereto.
(c) Network Affiliation Agreements and Local Marketing Arrangements.
Acquire or enter into any network affiliation agreements, local marketing
arrangements,
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programming contracts, joint operating agreements, time brokerage agreements or
other similar contracts, or exercise the Option.
(d) Breaches. Do or omit to do any act which will cause a material
breach of any material Assumed Contract.
(e) Capital Expenditures. Make any capital expenditure, or enter into
any contract or commitment therefor, in excess of one (1) million dollars in the
aggregate from the date of this Agreement until December 31, 1997, and two (2)
million dollars in the aggregate in 1998.
(f) Amendments or Waivers to Assumed Contracts. Subject to Section
8.2(d), amend or consent to the amendment of any of the Assumed Contracts, the
aggregate effect of which is to cause the terms of such Assumed Contract to be
materially less favorable than prior to such amendment or consent to amendment,
or waive any rights of Seller pursuant to the Assumed Contracts.
(g) Change in Accounting Policies. Except as required by generally
accepted accounting principles, make any change in the accounting policies
applied in the preparation of the Financial Statements.
(h) Cancellation of Claims. Cancel or agree to cancel without fair
consideration therefor any material debts owed to or material claims held by
Seller in respect of the Business (including the settlement of any material
claims or material litigation).
(i) Employee Matters. Enter into or become subject to any employment,
labor, union, or professional service contract not terminable at will, or any
bonus, pension, insurance, profit sharing, incentive, deferred compensation,
severance pay, retirement, hospitalization, employee benefit, or other similar
plan; or increase the compensation payable or to become payable to any employee,
or pay or arrange to pay any bonus payment to any employee, except in the
Ordinary Course of Business.
(j) Actions Affecting FCC Licenses. Take any action which may
jeopardize the validity or enforceability of or rights under the FCC Licenses.
(k) Affiliated Transactions. Enter any transaction with any Affiliate
of Seller regarding the operation of the Station, including, without limitation,
any renewal, extension, modification or other change in, any existing contract
or agreement to which an Affiliate of
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Seller is a party or any other transaction regarding the operation of the
Station involving an Affiliate of Seller which will have continued effectiveness
after the Closing Date.
(l) Agreements and Commitments. Agree or commit to do or authorize any
of the foregoing.
(m) Tax Matters. From the Accretion Date until the Closing Date,
except to the extent required by law, make or revoke any Tax election or change
(or make a request to any taxing authority to change) any material aspect of its
method of accounting for tax purposes.
SECTION 5.2 AFFIRMATIVE COVENANTS. Pending and prior to the Closing
Date, Seller will:
(a) Preserve Existence. Preserve its corporate existence and business
organization intact, maintain its existing franchises and licenses, use
commercially reasonable efforts to preserve the relationships of the Station
with suppliers, contractors, licensors, employees, customers and others having
business relations with the Business and keep all Assets substantially in their
present condition, ordinary wear and tear excepted.
(b) Normal Operations. Subject to the terms and conditions of this
Agreement (including, without limitation, Section 7.1 (h), (i) carry on the
businesses and activities of the Station, including without limitation, the sale
of advertising time, entering into other contracts and agreements, or purchasing
and scheduling of programming, in the Ordinary Course of Business consistent
with past practices; (ii) pay or otherwise satisfy all obligations (cash and
barter) of the Station in the Ordinary Course of Business; (iii) maintain normal
collection practices; (iv) continue to make planned capital expenditures through
December 31, 1997 (estimated to be $650,000 in the aggregate from the date of
this Agreement); and (v) maintain its books of account, records, and files in
substantially the same manner as heretofore.
(c) Maintain FCC Licenses. Maintain the validity of the FCC Licenses,
and comply in all material respects with all requirements of the FCC Licenses,
the Communications Act and the rules and regulations of the FCC.
(d) Network Affiliation. Use commercially reasonable efforts to
maintain in full force and effect Seller's present network affiliation
agreements for the Station (and any and all modifications and renewals thereof).
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(e) Assumed Contracts. Pay and perform its obligations in the Ordinary
Course of Business under the Assumed Contracts and the Consulting Agreement in
accordance with the respective terms and conditions of such Assumed Contracts
and the Consulting Agreement.
(f) Consulting Agreement. Use commercially reasonably efforts to
maintain in full force and effect and shall not waive any of its rights pursuant
to, the Consulting Agreement.
(g) Taxes. Pay or discharge all Taxes when due and payable in the
Ordinary Course of Business, except any Taxes contested in good faith.
(h) Corporate Action. Take all corporate action (including, without
limitation, all shareholder action) under the Laws of any state having
jurisdiction over Seller necessary to effectuate the transactions contemplated
by this Agreement and by the other Seller Documents.
(i) Access. Cause to be afforded to representatives of Buyer
reasonable access during normal business hours to offices, properties, assets,
books and records, contracts and reports of the Station and the LMA Station, as
Buyer shall from time to time reasonably request.
(j) Insurance. Maintain in full force and effect all of its existing
casualty, liability, and other insurance through the day following the Closing
Date in amounts not less than those in effect on the date hereof.
(k) Cash Balance. Seller will have on hand, after giving effect to the
retention of cash and cash equivalents contemplated by Section 2.2(a), not less
than three (3) million dollars in cash or cash equivalents in the Business on
the Accretion Date.
(l) Real Estate Liens. Prior to Closing Seller will satisfy and
discharge any liens on the Real Property that may be discharged or satisfied by
the payment of money.
SECTION 5.3 CONFIDENTIALITY
(a) Seller and its Affiliates shall, at all times, maintain strict
confidentiality with respect to all documents and information furnished to
Seller by or on behalf of Buyer. Nothing shall be deemed to be confidential
information that: (a) is known to Seller at the time of its disclosure to
Seller; (b) becomes publicly known or available other than through disclosure by
Seller;
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(c) is received by Seller from a third party not actually known by Seller to be
bound by a confidentiality agreement with or obligation to Buyer; or (d) is
independently developed by Seller. Notwithstanding the foregoing provisions of
this Section 5.3(a), Seller may disclose such confidential information (a) to
the extent required or deemed advisable to comply with applicable Laws; (b) to
its officers, directors, employees, representatives, financial advisors,
attorneys, accountants, and agents with respect to the transactions contemplated
hereby (so long as such parties agree to maintain the confidentiality of such
information); and (c) to any Governmental Authority in connection with the
transactions contemplated hereby. In the event this Agreement is terminated,
Seller will return to Buyer all documents and other material prepared or
furnished by Buyer relating to the transactions contemplated hereunder, whether
obtained before or after the execution of this Agreement.
(b) Seller shall, at all times, maintain strict confidentiality with
respect to all documents and information relating to the business and operations
of the Station, the LMA Station and the Assets. For the purposes of this Section
5.3(b), nothing shall be deemed to be confidential information that: (i) becomes
publicly known or available other than through disclosure by Seller (ii) is
received by Seller after the Closing by a third party and the Seller does not
have Knowledge of such third party being bound by a confidentiality agreement
with or obligation to Buyer or (iii) is independently developed by Seller after
Closing. Notwithstanding the foregoing provisions of this Section 5.3(b), Seller
may disclose such confidential information (x) to the extent required or deemed
advisable to comply with applicable Laws; (y) to its officers, directors,
employees, representatives, financial advisors, attorneys, accountants, and
agents with respect to the transactions contemplated hereby (so long as such
parties agree to maintain the confidentiality of such information); and (z) to
any Governmental Authority in connection with the transactions contemplated
hereby.
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(c) This Section 5.3 shall become null and void and of no force or
effect upon a date two years after the date of this Agreement.
ARTICLE 6
COVENANTS AND AGREEMENTS OF RANGER AND LIN
Ranger and LIN, severally and not jointly, covenant and agree with
Seller as follows:
SECTION 6.1 CONFIDENTIALITY
(a) Ranger and LIN shall, at all times prior to the Closing, maintain
strict confidentiality with respect to all documents and information furnished
to them by or on behalf of Seller. Nothing shall be deemed to be confidential
information, that: (i) is known to a party at the time of its disclosure to the
party; (ii) becomes publicly known or available other than through disclosure by
the party; (iii) is received by that party from a third party not actually known
by that party to be bound by a confidentiality agreement with or obligation to
Seller; or (iv) is independently developed by that party. Notwithstanding the
foregoing provisions of this Section 6.1, Ranger and XXX xxx disclose such
confidential information (x) to the extent required or deemed advisable to
comply with applicable Laws; (y) to its officers, directors, employees,
representatives, financial advisors, attorneys, accountants, agents,
underwriters, lenders, investors and any other potential sources of financing
(including the agents and advisors of such potential sources of financing) with
respect to the transactions contemplated hereby (so long as such parties agree
to maintain the confidentiality of such information); and (z) to any
Governmental Authority in connection with the transactions contemplated hereby
or the financing thereof. In the event this Agreement is terminated in whole or
with respect to a party, Ranger and LIN will return to Seller all documents and
other material prepared or furnished by Seller relating to the transactions
contemplated by this Agreement, whether obtained before or after the execution
of this Agreement.
(b) This Section 6.1 shall become null and void and of no force or
effect upon a date two years after the date of this Agreement.
SECTION 6.2 CORPORATE ACTION. Prior to the Closing, Ranger and LIN
shall take all corporate action (including, without limitation, all shareholder
action) under the Laws of any State having jurisdiction over the party necessary
to effectuate the transactions contemplated by this Agreement and the other
Buyer Documents.
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SECTION 6.3 NO SOLICITATION; NO HIRE. Except as provided in this
Agreement neither Ranger, nor its Affiliates, shall (1) solicit for employment
any executive or employee of the Station or the LMA Station or (2) solicit or
employ any person listed on Schedule 6.3, in each case until the earlier of (a)
the Closing or (b) three months following the termination of this Agreement in
accordance with its terms.
SECTION 6.4 EMPLOYEE MATTERS.
(a) Buyer shall be solely responsible for the conduct of any
negotiations prior to the Closing Date with any union with respect to collective
bargaining agreements, if any, or other labor agreements applicable to its
employees to be effective after the Closing Date, whether or not at the time of
the negotiation such individuals are employees of the Station.
(b) Buyer agrees to offer to employ at the Closing each of the
employees of Station who are listed on Schedule 6.4(b) (which shall be updated
as of the day prior to Closing) and who are employed by Seller immediately prior
to the Closing ("Acquired Employees") at the same total aggregate cash
compensation levels (i.e., salary plus cash bonus, if any) in effect on the
Closing Date, which shall be maintained for at least two years following the
Closing Date for all employees who remain employed by the Buyer, including any
reasonable salary action approved as of the Closing Date but not yet
implemented. Employment with Buyer shall be effective at 12:01 A.M. on the
Closing Date, except offers of employment extended to employees receiving
short-term disability benefits or on approved leaves of absence with a
guaranteed right of reinstatement on the Closing Date which will become
effective upon their return to active status at the termination of the
short-term disability or approved leaves of absence, respectively. Such persons
shall become employees of Buyer and shall initially have positions (including
status, offices, titles and reporting requirements), authority, duties
responsibilities comparable to those held and exercised by such employee with
Station on the Closing Date; provided, however, that Buyer shall in no event be
restricted from making such employment decisions after the Closing as it deems
appropriate. Buyer agrees to give such employees full credit for the paid time
off and sick pay earned or accrued by them during, and to which they are
entitled as a result of, their employment by Station, either by allowing such
employees such paid time off and sick pay as to which such employees would have
been entitled as of the Closing Date under the policies of Station if such
employees had remained employees of Station or, upon termination of employment,
by making full payment to such employees of the paid time off that such
employees would have received had they taken such paid time off.
(c) Buyer agrees that effective as of the Closing Date and for at
least two years after Closing, it will provide to all Acquired Employees, at a
minimum, post-closing group
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health benefits substantially comparable to those currently offered by Seller
("Post-closing Benefits").
(d) To ensure that all Acquired Employees will be actually covered by
group health plans of Buyer immediately upon Closing and so that Seller shall
have no continuing obligation for providing continuation of medical coverage to
Acquired Employees, Buyer shall not offer an "opt out" provision under its group
health plan to any Acquired Employee. For purposes of determining whether any
Acquired Employee or such employee's covered dependents have satisfied any
required co-payments, annual deductibles and out-of-pocket maximums under the
terms of the Buyer's group health plan for the calendar year in which their
employment with Buyer commences, Acquired Employees and their covered dependents
shall be credited with the amount of deductibles and co-payments made by, or on
behalf of, such Acquired Employees and their covered dependents under the
Seller's group health plan for such year.
(e) Buyer shall recognize all service with Seller, including service
with predecessor employers that was recognized by Seller, for purposes of the
Buyer's benefit plans and programs, including, but not limited to, vacation
entitlement, eligibility to participate and vesting in any pension,
profit-sharing or stock bonus plan (including one with a cash-or-deferred
arrangement), health and welfare plan participation and vesting, and severance
pay.
(f) Ranger and LIN acknowledge and agree that as of the date and time
the Closing is effective, Buyer is considered for purposes of the WARN Act the
employer of the employees of Station and that Buyer (and not Station) shall
thereupon be responsible for complying with the WARN Act with respect to such
employees.
(g) Buyer shall indemnify, defend and hold Seller harmless from and
against any and all losses, claims and expenses of any kind whatsoever,
including, without limitation, attorneys' fees and costs of investigation,
resulting from or arising out of (i) the discharge or other termination of
employment by Buyer from and after the Closing Date of any employee of Station,
including, without limitation, claims for health care coverage or benefits and
all compliance obligations (including, without limitation, the obligation to
give notice or pay money) of Station or Buyer under the WARN Act, and (ii) the
Station Union Contracts from and after the Closing.
(h) Buyer agrees to assume Seller's obligations under the Cash Flow
Growth Participation Contracts as of the Closing; provided, however, that Buyer
shall have the right
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to amend or terminate the Cash Flow Growth Participation Contracts at any time
and in any manner it deems appropriate or desirable. Provided, however, that any
termination of such Plan shall not reduce or eliminate any benefit accrued by a
Plan participant up to the date of termination (whether or not vested) and
participants shall continue to vest in any benefits unvested as of the date of
termination through service with the Buyer.
(i) As of midnight on the day before the Closing Date, all Station
Employees will cease to participate as active employees in or accrue benefits
under the Benefit Plans maintained by Seller or in which Seller participates,
except for those plans the terms of which provide for termination of
participation as of the end of the month in which employment terminates.
SECTION 6.5 BULK SALES LAWS. Ranger and LIN hereby waive compliance by
Seller, in connection with the transactions contemplated hereby, with the
provisions of any applicable bulk transfer laws.
SECTION 6.6 RIGHT OF FIRST REFUSAL. LIN and Broadcasting agree that
that certain Right of First Refusal Agreement between them, a copy of which is
appended hereto as Schedule 6.6, is waived with respect to the transactions
contemplated by this Agreement and will be terminated and of no further force or
effect with no further action by any party if the Closing occurs or if this
Agreement is terminated for any reason except pursuant to Section 9.1 (c). If
this Agreement is terminated pursuant to Section 9.1 (c), LIN's waiver of the
Right of First Refusal Agreement shall terminate and such Right of First Refusal
Agreement shall continue in full force and effect with no further action by any
party.
ARTICLE 7
ADDITIONAL COVENANTS AND AGREEMENTS OF RANGER, LIN AND
SELLER
SECTION 7.1 REASONABLE BEST EFFORTS.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, each of the parties agrees to use its reasonable best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with the other parties in doing, all things reasonably
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement,
including (i) the obtaining of all necessary actions, waivers, consents,
licenses and approvals from Governmental Entities and the making of all
necessary registrations and
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filings (including filings with Governmental Entities) and the taking of all
reasonable steps as may be necessary to obtain an approval, waiver or license
from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the
obtaining of all necessary consents, approvals or waivers from third parties,
(iii) the defending of any lawsuits or other legal proceedings, whether judicial
or administrative, challenging this Agreement, or the consummation of the
transactions contemplated by this Agreement, including seeking to have any stay
or temporary restraining order entered by any court or other Governmental Entity
vacated or reversed and (iv) the execution and delivery of any additional
instruments necessary to consummate the transactions contemplated by, and to
carry out fully the purposes of, this Agreement.
(b) Without limiting the foregoing, each of the parties hereto shall
use its reasonable best efforts and cooperate in promptly preparing and filing
as soon as practicable, following the earlier to occur of (i) the termination of
the Merger Agreement in accordance with its terms; or (ii) the consummation of
the Merger, (y) notifications under the HSR Act and (z) the FCC Application and
related filings in connection with the Merger and the other transactions
contemplated hereby, and to respond as promptly as practicable to any inquiries
or requests received from the Federal Trade Commission (the "FTC"), the
Antitrust Division of the United Stated Department of Justice ("the "Antitrust
Division"), the FCC and any other Governmental Entities for additional
information or documentation and to respond as promptly as practicable to all
inquiries and requests received from any State Attorney General or other
Governmental Entity in connection with antitrust matters or matters relating to
the FCC Application.
(c) Each of the parties hereto, to the extent applicable, further
agrees to file (and, in the case of Buyer to cause its affiliates to file)
contemporaneously with the filing of the FCC Application any requests for
temporary or permanent waivers of applicable FCC rules and regulations or rules
and regulations of other Governmental Entities and in furtherance of those
waiver requests to pledge to hold separate, to place in trust and/or to divest
any of the businesses, product lines or assets of (A) LIN or any of its
subsidiaries at any time after the Effective Time or (B) Buyer or any of its
affiliates at any time prior to, on or after the Effective Time (collectively,
"Divestitures"), in each case as may be required under Current FCC Policy to
obtain approval of the FCC Application and other governmental approvals in order
to permit consummation of the transactions contemplated by this Agreement prior
to the Termination Date and to expeditiously prosecute such waiver requests and
to diligently submit any additional information or amendments for which the FCC
or any other relevant Governmental Entity may ask with respect to such waiver
requests.
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(d) Ranger further covenants that, prior to the Closing, neither it
nor any of its affiliates shall acquire any new or increased "attributable
interest," as defined in the FCC rules, in any media property ("Further Media
Interest"), which Further Media Interest could not be held in common control
with the Station by Ranger and its Affiliates following the Closing Date
(including by virtue of the FCC's multiple ownership limits), without the prior
written consent of Seller.
(e) In connection with, but without limiting, the foregoing
Subsections 7.1 (a) through (d), Ranger, LIN and Seller shall use their
reasonable best efforts to resolve such objections, if any, as may be asserted
with respect to the transactions contemplated by this Agreement under any
antitrust, competition or trade regulatory laws, rules or regulations of any
Governmental Entity ("Antitrust Laws") or any laws, rules or regulations of the
FCC or other Governmental Entities relating to the broadcast, newspaper, mass
media or communications industries (collectively, "Communications Laws") and
will take all necessary and proper steps (including, without limitation, any
Divestitures) as may be required (i) for securing the termination of any
applicable waiting period or for the approval of the FCC Application under the
Antitrust Laws or Communications Laws, in each case in order to permit the
consummation of the Merger and other transactions contemplated hereby prior to
the Termination Date or (ii) by any domestic or foreign court or similar
tribunal, in any suit brought by a private party or governmental Entity
challenging the transactions contemplated by this Agreement as violative of any
Antitrust Law or Communications Law, in order to avoid the entry of, or to
effect the dissolution of, any injunction, temporary restraining order or other
order that has the effect of preventing the consummation of any such
transactions.
(f) Each of the parties hereto shall promptly provide the others with
a copy of any inquiry or request for information (including any oral request for
information), pleading, order or other document either party receives from any
Governmental Entities with respect to the matters referred to in this Article 7.
(g) Seller shall give prompt notice to Ranger and LIN of (i) any
notice of, or other communication relating to, a default or event which, with
notice or lapse of time or both, would become a default, received by it
subsequent to the date of this Agreement and prior to the Closing, under any
material Assumed Contract, (ii) any notice or other communication from any third
party alleging that the consent of such third party is or may be required in
connection with the transactions contemplated by this Agreement, provided that
the delivery of any notice pursuant to the foregoing provisions of this Section
7.1 (g) shall not limit or otherwise affect the remedies available hereunder to
the party receiving such notice or (iii) any capital contribution or cash
infusion made by Seller to the Business on a
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date following the Accretion Date (including the amount thereof and a
description of the purpose thereof).
(h) Control of Seller's Operations. Notwithstanding any other
provision of this Agreement, prior to the Closing Date, control of Seller's
television broadcast operations, along with all of the Seller's other
operations, shall remain with the Seller. The Seller, Ranger and LIN acknowledge
and agree that neither Ranger or LIN nor any of their employees, affiliates,
agents or representatives, directly or indirectly, shall, or have any right to
control, direct or otherwise supervise, or attempt to control, direct or
otherwise supervise, such broadcast and other operations, it being understood
that supervision of all programs, equipment, operations and other activities of
such broadcast and other operations shall be the sole responsibility, and at all
times prior to the Closing remain within the complete control and discretion, of
the Seller, subject to the terms of Article 5. The provision of services by LIN
under the Consulting Agreement shall not be deemed to be a violation of this
covenant.
(i) Notification of Certain Matters. If Seller receives an
administrative or other order or notification relating to any violation or
claimed violation of the rules and regulations of the FCC, or of any
Governmental Entity, that could affect Seller's, Ranger's or LIN's ability to
consummate the transactions contemplated -hereby, or should Ranger, LIN (or
their affiliates) or the Seller become aware of any fact (including any change
in law or regulations (or any interpretation thereof by the FCC relating to the
qualifications of Ranger (and its controlling persons) that reasonably could be
expected to cause the FCC to withhold its consent to the transfer of control of
the FCC Licenses, Ranger, LIN or the Seller, as the case may be, shall promptly
notify the other parties thereof and shall use all reasonable efforts to take
such steps as may be necessary to remove any such impediment to the transactions
contemplated by this Agreement. In addition, Ranger, LIN or Seller, as the case
may be, shall give to the other parties prompt written notice of (a) the
occurrence, or failure to occur, of any event of which it becomes aware that has
caused or that would be likely to cause any representation or warranty of
Ranger, LIN or the Seller, as the case may be, contained in this Agreement to be
untrue or inaccurate at any time from the date hereof to the Closing date, and
(b) the failure of Ranger, LIN or the Seller, as the case may be, or any
officer, director, employee or agent thereof, to comply with or satisfy in any
material respect any covenant, condition or agreement to be complied with or
satisfied by it hereunder. No such notification shall affect the representation
or warranties of the parties or the conditions to their respective obligations
hereunder.
(j) Assistance. If Ranger or LIN requests, Seller will cooperate, and
will cause Coopers and Xxxxxxx, LLP to cooperate, in all reasonable respects
with the efforts of Ranger to finance the transactions contemplated by this
Agreement, including without
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limitation, providing assistance in the preparation of one or more offering
documents relating to debt financing to be obtained by Ranger, all at the sole
expense of Ranger. The Seller (a) shall furnish to Coopers and Xxxxxxx, LLP, as
independent accountants to the Seller, such customary management representations
letters as Coopers and Xxxxxxx, LLP may require of the Seller in connection with
the delivery of any customary " comfort" letters requested by Ranger's financing
sources and (b) shall furnish to Ranger all financial statements (audited and
unaudited) and other information in the possession of Seller or its
representatives or agents relating to the Business as Ranger shall reasonably
determine is necessary or appropriate for the preparation of such offering
documents. Notwithstanding the foregoing, prior to the Closing, the Seller shall
not be required to file or assist Ranger in filing any registration statement
with the SEC in connection with Ranger's efforts to finance the transactions
contemplated hereby. Ranger will indemnify and hold harmless Seller and its
officers, directors and controlling persons against any and all claims, losses,
liabilities, damages, costs or expenses (including reasonable attorneys' fees
and expenses) that may arise out of or with respect to the efforts by Ranger to
finance the transactions contemplated hereby, including, without limitation, any
offering documents and other documents related thereto.
SECTION 7.2 CONVEYANCE TAXES. Each of the parties hereto shall
cooperate in the preparation, execution and filing of all returns,
questionnaires, applications, or other documents regarding any real property
transfer gains, sales, use, transfer, value added, stock transfer and stamp
taxes, any transfer, recording, registration and other fees, and any similar
taxes that become payable in connection with the transactions contemplated
hereby.
SECTION 7.3 RISK OF LOSS. The risk of loss or damage by fire or other
casualty or cause to the Assets until the Closing Date shall be upon Seller. In
the event of loss or damage prior to the Closing Date, that constitute a
Material Adverse Effect, which shall not be restored, replaced, or repaired as
of the Closing Date, Buyer shall, at its option, either:
(a) proceed with the Closing and receive at Closing, the insurance
proceeds or an assignment of the right to receive such insurance proceeds, as
applicable, to which Seller otherwise would be entitled, whereupon Seller shall
have no further liability to Buyer for such loss or damage; or
(b) terminate this Agreement by written notice to Seller, whereupon no
party to this Agreement shall have any liability to any other party to this
Agreement, and this Agreement in its entirety, except for the provisions set
forth in Sections 5.3 and 6.1 (which
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shall survive such termination), shall be deemed null and void and of no further
force and effect.
SECTION 7.4 PUBLIC ANNOUNCEMENTS. Seller Ranger and LIN shall consult
with each other before issuing (or permitting any of their respective Affiliates
to issue) any press release or otherwise making any public statements with
respect to this Agreement or the transactions contemplated herein and shall not
issue (or permit any of their respective Affiliates to issue) any such press
release or make any such public statement without the prior written consent of
the other party, which shall not be unreasonably withheld; provided, however,
that a party (or any such Affiliate) may, without the prior written consent of
the other party, issue such press release or make such public statement as may
be required by Law or any listing agreement with a national securities exchange
to which Seller, Ranger or LIN (or any Affiliate of Ranger or LIN or Seller) is
a party if it has used all reasonable efforts to consult with the other party
and to obtain such party's consent but has been unable to do so in a timely
manner.
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SECTION 7.5 NOTICE AND CURE OF BREACH. If any party hereto shall,
prior to the Closing, obtain actual knowledge of any alleged or actual breach of
any representation, warranty or covenant by any other party, it shall give
prompt notice to such other party of the existence and nature of such alleged or
actual breach and, if circumstances giving rise to such alleged or actual breach
of the representation, warranty or covenant shall have been corrected to the
reasonable satisfaction of the notifying party prior to the Closing, the
existence of such breach shall not constitute a basis for termination of this
Agreement. The failure to provide the notice specified in the first sentence of
this Section 7.5 shall not constitute a breach of this Agreement, nor (except to
the extent the breaching party's ability to cure such breach is materially
prejudiced thereby) shall it constitute a waiver of such alleged or actual
breach.
ARTICLE 8
CONDITIONS
SECTION 8.1 CONDITIONS TO OBLIGATION OF EACH PARTY. The respective
obligations of each party to consummate the transactions contemplated by this
Agreement shall be subject to the satisfaction at or prior to Closing of the
following conditions:
(a) FCC Approval. The FCC shall have approved the FCC Application and
such approval shall have become final; provided that such approval may be
subject to Buyer (or its affiliates) making Divestitures as set forth in Article
7. For purposes of this Agreement, FCC approval of the FCC Application shall be
deemed to be final if the FCC has taken action approving the transfer of the FCC
Licenses for the operation of the Station , except as may be waived in writing
by Ranger or LIN, as the case may be, has not been reversed, stayed, enjoined,
set aside, annulled or suspended, with respect to which no timely request for
stay, petition for reconsideration or appeal of sua sponte action of the FCC
with comparable effect is pending and as to which the time for filing any such
request, petition or appeal or for the taking of any such sua sponte action by
the FCC has expired.
(b) HSR Waiting Period. The waiting period applicable to the
consummation of the transactions contemplated hereby under the HSR Act shall
have expired or been terminated.
(c) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement shall be in
effect, nor shall any proceeding by
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any Governmental Entity seeking any of the foregoing be pending. There shall not
be any action taken, or any statute, rule, regulation or order enacted, entered,
enforced or deemed applicable to the of the transactions contemplated by this
Agreement, which makes the consummation of the of the transactions contemplated
by this Agreement illegal.
SECTION 8.2 CONDITIONS TO OBLIGATIONS OF THE BUYER. The obligation of
the Buyer to consummate the transactions contemplated by this Agreement is
subject to the satisfaction of the following additional conditions unless
waived by the Buyer:
(a) Deliveries. Sellers shall have delivered to Buyer all contracts,
agreements, instruments and documents required to be delivered by Sellers to
Buyer pursuant to this Agreement.
(b) Representations and Warranties of the Seller. The representations
and warranties of the Sellers set forth in this Agreement shall be true and
correct in all respects (provided that any representation or warranty of Sellers
contained herein that is subject to a materiality, Material Adverse Effect or
similar qualification shall not be so qualified for purposes of determining the
existence of any breach thereof on the part of Sellers), as of the date of this
Agreement and (except to the extent such representations and warranties speak as
of an earlier date) as of the Closing Date as though made on and as of the
Closing Date, except for such breaches that would not, individually or in the
aggregate with any other breaches on the part of Sellers, reasonably be expected
to have a Material Adverse Effect, and Buyer shall have received a certificate
signed on behalf of an Officer of Seller to such effect.
(c) Performance of Obligations of the Seller. The Seller shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date, and Buyer shall have
received a certificate signed on behalf of the Seller by an officer of the
Seller to such effect.
(d) Consents. Seller shall have obtained all necessary consents to the
assignment to Buyer of the network affiliation agreements relating to the
Station and the LMA Station, the WOTV Contracts and any lease with respect to a
transmitter site or studio lease. In order to obtain such consents, Seller, with
the consent of Ranger, which shall not be unreasonably withheld, may agree to
modifications to such agreements.
(e) LMA Agreement; Waiver Requests. There shall not have been a
material modification or termination of the LMA Agreement which individually or
in the aggregate would reasonably be expected to have a materially adverse
economic effect on the business,
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financial condition or results of operations of Seller taken as a whole or a
denial by the FCC of any of the waiver requests referred to in Schedule 4.6
(provided that Buyer has made and/or agreed to make any necessary Divestitures
pursuant to Section 7.1 (c), in each case other than as directed by the FCC
under Current FCC Policy. For purposes of this Agreement, the FCC shall be
deemed to have acted under Current FCC Policy except to the extent that its
action is the result of (i) legislative change enacted after the date of this
Agreement, (ii) FCC action taken after the date of this Agreement in a rule
making proceeding, or (iii) application by the FCC Staff of interim decisions,
policies or processing guidelines adopted by the FCC Staff with respect to
requests for waivers of the duopoly rule, 47 C.F.R. Section 73.3555(b), or the
one-to-a-market rule, 47 C.F.R. Section 73.3555(c), or to LMAs, not heretofore
applied to transfer applications for stations similarly situated to WOOD-TV.
SECTION 8.3 CONDITIONS TO OBLIGATIONS OF THE SELLERS. The obligation
of the Sellers to consummate the transactions contemplated by this Agreement is
subject to the satisfaction of the following additional conditions unless waived
by the Sellers:
(a) Representations and Warranties of the Buyer. The representations
and warranties of the Buyer set forth in this Agreement shall be true and
correct in all respects (provided that any representation or warranty of Buyer
contained herein that is subject to a materiality, material adverse effect or
similar qualification shall not be so qualified for purposes of determining the
existence of any breach thereof on the part of Buyer), as of the date of this
Agreement and (except to the extent such representations and warranties speak as
of an earlier date) as of the Closing Date as though made on and as of the
Closing Date, except for such breaches that would not, individually or in the
aggregate with any other breaches on the part of Buyer, reasonably be expected
to have a material adverse effect and Buyer shall have received a certificate
signed on behalf of an Officer of Buyer to such effect.
(b) Performance of Obligations of Buyer. Buyer shall have performed in
all material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date, and the Seller shall have received a
certificate signed on behalf of Buyer by the Chief Executive Officer of Buyer to
such effect.
ARTICLE 9
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1 TERMINATION. This Agreement may be terminated at any time
prior to Closing:
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(a) only as to and between Ranger and Seller, by mutual written
consent of Ranger and Seller;
(b) only as to and between LIN and Seller, by mutual written consent
of LIN and Seller;
(c) by Ranger or LIN, so long as the terminating party is not then in
material breach of its obligations hereunder, upon a breach of any material
representation, warranty, covenant or agreement on the part of Seller set forth
in this Agreement, or if any such representation or warranty of Seller shall
have been or become untrue, in each case such that the conditions set forth in
Section 8.2(b) or Section 8.2(c), as the case may be, would not be satisfied and
such breach or untruth (i) cannot be cured by the Closing Date or (ii) has not
been cured within 30 days of the date on which Seller receives written notice
thereof from Buyer and further provided that any right of termination under this
Subsection (c) shall be effective only as between Seller and the party
terminating this Agreement pursuant to this Subsection (c);
(d) by Seller as to Ranger or LIN, so long as Seller is not then in
material breach of its obligations hereunder, upon a breach of any material
representation, warranty, covenant or agreement, on the part of the party with
respect to which Seller would terminate this Agreement, set forth in this
Agreement, or if any such representation or warranty of that party shall have
been or become untrue, in each case such that the conditions set forth in
Section 8.3(a) or Section 8.3(b), as the case may be, would not be satisfied and
such breach or untruth (i) cannot be cured by the Closing Date or (ii) has not
been cured within 30 days of the date on which the party receives written notice
thereof from Seller, and further provided that any right of termination under
this Subsection (d) shall be effective only as between the Seller and the party
as to which the Agreement is terminated under this Subsection (d);
(e) by any party if, any permanent injunction or other order, decree,
ruling or action by any Governmental Entity preventing the consummation of the
transactions contemplated under this Agreement shall have become final and
nonappealable; provided that any termination under this Subsection 9.1 (e) shall
only be as to, and between the Seller and the party to which the injunction, or
other order, decree, ruling or action shall have become final and nonappealable;
further provided that such right of termination shall not be available to any
party if such party shall have failed to make reasonable efforts to prevent or
contest the imposition of such injunction or other order, decree, ruling or
action and such failure materially contributed to such imposition;
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(f) by any party if (other than due to the willful failure of the
party seeking to terminate this Agreement to perform its obligations hereunder
required to be performed at or prior to the Effective Time) the Merger shall not
have been consummated on or prior to the earlier of (a) nine months following
the Effective Time; or (b) December 31, 1998 (the "Termination Date"); and
(g) This Agreement will be deemed to be terminated (1) as to Ranger if
the Merger Agreement is terminated prior to the Effective Time (as defined
therein) for any reason whatsoever in accordance with its terms, and (2) as to
LIN if the Merger Agreement is not terminated prior to the Effective Time, in
each case without any further action by any party.
SECTION 9.2 EFFECT OF TERMINATION. Any termination of this Agreement
as between Seller, Ranger or LIN shall have no effect on the rights and
obligations under this Agreement as between Seller and the non-terminated party
and if such termination occurs, this Agreement shall remain in full force and
effect as to and between LIN and Seller and the non-terminated party. In the
event of the termination of this Agreement as to a party pursuant to Section
9.1, this Agreement shall forthwith become void with respect to such party and
there shall be no liability on the part of such party, or any other party hereto
with respect to such party ; provided, however, that nothing herein shall
relieve any party from liability for any breach hereof.
SECTION 9.3 FEES AND EXPENSES. All fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fees or expenses, whether or not the
transactions occur.
SECTION 9.4 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
SECTION 9.5 WAIVER. At any time prior to the Closing, any party
hereto, to the extent lawful, may (a) extend the time for the performance of any
of the obligations or other acts of the other parties hereto, (b) waive any
inaccuracies i the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions contained herein. Any such extension or waiver shall be
valid if set forth in an instrument in writing signed by the party or parties to
be bound thereby.
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ARTICLE- 10
GENERAL PROVISIONS
SECTION 10.1 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy, telegram or telex or by registered or certified mail(postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
If to the Ranger:
Ranger Holdings Corp.
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx Xxxxxxxxxx, Esq.
If to LIN:
LIN Television Corporation
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxx
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with a copy to:
Xxxxxxx, Xxxxxxxx and Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
If to Sellers:
Xxxxxx X. Xxxxx
Vice President & General Manager -
Corporate Productivity & CFO
AT&T Corp.
Room 4426E1
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
with a copy to:
Vice President - Law and Secretary
AT&T Corp.
Room A2029
000 Xxxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
SECTION 10.2 PARTIES IN INTEREST. This Agreement shall be binding upon
an inure solely to the benefit of each party hereto and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
SECTION 10.3 ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, such remedy being in addition to any
other remedy to which any party is entitled at law or in equity.
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SECTION 10.4 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
SECTION 10.5 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 10.6 ADDITIONAL ACTIONS, DOCUMENTS AND INFORMATION. Buyer
agrees that it will, at any time, prior to, at or after the Closing Date, take
or cause to be taken such further actions, and execute, deliver and file or
cause to be executed, delivered and filed such further documents and instruments
and obtain such consents, as may be reasonably requested by Seller in connection
with the consummation of the purchase and sale contemplated by this Agreement.
Seller agrees that it will, at any time, prior to, at or after the Closing Date,
take or cause to be taken such further actions, and execute, deliver and file or
cause to be executed, delivered and filed such further documents and instruments
and obtain such consents, as may be reasonably requested by Buyer in connection
with the consummation of the purchase and sale contemplated by this Agreement.
SECTION 10.7 EXPENSES AND TRANSFER TAXES. Each party hereto shall pay
its own expenses incurred in connection with this Agreement and in the
preparation for and consummation of the transactions provided for herein.
Notwithstanding the foregoing, Seller and Buyer shall each pay one-half of (a)
any sales (including, without limitation, bulk sales), use, documentary, stamp,
gross receipts, registration, transfer, conveyance, excise, recording, license
and other similar Taxes and fees ("Transfer Taxes") applicable to, imposed upon
or arising out of the transactions contemplated hereby whether now in effect or
hereinafter adopted and regardless of which party such Transfer Tax is imposed
upon, (b) any FCC filing fees incurred in connection with the assignment of the
FCC Licenses, and (c) any fees and expenses incurred in connection with any HSR
Filings.
SECTION 10.8 WAIVER. No delay or failure on the part of any party
hereto in exercising any right, power or privilege under this Agreement or under
any other instrument or document given in connection with or pursuant to this
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No waiver shall be valid
against any party hereto unless made in writing and signed by the party against
whom enforcement of such waiver is sought and then only to the extent expressly
specified therein.
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SECTION 10.9 REIMBURSEMENT FOR TAXES. Buyer shall reimburse Seller for
any Taxes paid by Seller with respect to the Business for the period beginning
on the Accretion Date and ending on the Closing Date (the "Reimbursement
Period") and the Taxes Buyer is required to reimburse Seller for pursuant to
this Section 10.9 shall be referred to herein as the "Reimbursed Tax Amount").
For purposes of this Agreement, the Reimbursed Tax Amount shall equal (a) the
sum of (i) the Tax liability of the Business for the Reimbursement Period,
computed as if the Business were conducted on a stand alone basis and assuming a
maximum tax rate for federal, state and local income tax purposes of 39 percent
and (ii) any other Taxes paid by Seller with respect to the Business for the
Reimbursement Period less (b) the amount of any Taxes with respect to the
Business for the Reimbursement Period paid by Seller from operating cash of the
Business during the Reimbursement Period. To the extent the operation of the
Business during the Reimbursement Period results in a loss for Tax purposes then
the Seller shall reimburse the Buyer in an amount equal to the product of (x)
the amount of the taxable loss with respect to the Business for the
Reimbursement Period, computed as if the Business were conducted on a stand
alone basis and (y) an applicable tax rate of 39 percent (the "Reimbursed Tax
Loss Amount"). In calculating the Reimbursed Tax Amount or the Reimbursed Tax
Loss Amount, as the case may be, items of income, gain, loss, deduction and
credit shall be allocated to the Business in a manner consistent with past
practice. Seller shall provide Buyer with a statement (the "Reimbursed Tax
Statement") setting forth in reasonable detail calculations of the Reimbursed
Tax Amount or the Reimbursed Tax Loss Amount, as the case may be, and Buyer
shall have the right to review and approve the Reimbursed Tax Statement for 30
days following the receipt thereof. Seller and Buyer shall attempt in good faith
mutually to resolve any disagreements regarding such Reimbursed Tax Statement.
If such dispute is not resolved within 45 days, the parties shall jointly retain
a nationally recognized independent accounting firm to resolve the dispute. The
fees of the independent accounting firm shall be borne equally by Buyer and
Seller, and the decision of such independent accounting firm be final and
binding on all parties.
SECTION 10.10 BENEFIT AND ASSIGNMENT. Except as hereinafter
specifically provided in this Section 10.10, no party hereto shall assign this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of the other party hereto; and any purported
assignment contrary to the terms hereof shall be null, void and of no force and
effect. Buyer may assign all of its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of it, provided that no such
assignment shall relieve Buyer of any of its obligation under this Agreement.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns as permitted
hereunder. No Person other than the parties hereto is or shall be entitled to
bring any action to enforce any provision of this Agreement against any
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of the parties hereto, and the covenants and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
the parties hereto or their respective successors and assigns as permitted
hereunder.
SECTION 10.11 ENTIRE AGREEMENT. This Agreement, including the
Schedules and Exhibits hereto and the other instruments and documents referred
to herein or delivered pursuant hereto, and the Consulting Agreement contains
the entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior oral or written agreement, commitments or
understandings with respect to such matters. No amendment, modification or
discharge of this Agreement shall be valid or binding unless set forth in
writing and duly executed by the party or parties against whom enforcement of
the amendment, modification or discharge is sought.
SECTION 10.12 SEVERABILITY. If any part of any provision of this
Agreement or any other contract, agreement, document or writing given pursuant
to or in connection with this Agreement shall be invalid or unenforceable under
applicable law, such part shall be ineffective to the extent of such invalidity
or unenforceability only, without in any way affecting the remaining parts of
such provisions or the remaining provisions of said contract, agreement,
document or writing.
SECTION 10.13 HEADINGS. The headings of the sections and subsections
contained in this Agreement are inserted for convenience only and do not form a
part or affect the meaning, construction or scope thereof.
SECTION 10.14 SIGNATURE IN COUNTERPARTS. This Agreement may be
executed in separate counterparts, none of which need contain the signatures of
all parties, each of which shall be deemed to be an original, and all of which
taken together constitute one and the same instrument. It shall not be necessary
in making proof of this Agreement to produce or account for more than the number
of counterparts containing the respective signatures of, or on behalf of, all of
the parties hereto.
SECTION 10.15 RECORDS. (a) Seller shall retain all original records in
its possession after "Closing" (including employment records) that relate to the
operations of the Business for a period of three years following the Closing,
(b) Buyer shall retain all original records received from Seller at Closing that
relate to the operation of the Business for a period of three years following
the Closing and (c) Buyer and Seller shall afford authorized representatives of
the other party access to the records subject to this Section, upon reasonable
notice, for matters arising under the provisions of this Agreement. Nothing
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herein contained shall or shall be deemed to alter the provisions of Sections
5.3 and 6.1 of this Agreement concerning confidentiality and non-disclosure.
ARTICLE 11
THE CLOSING
SECTION 11.1 CLOSING. The Closing hereunder shall be held on a date
specified by Seller that is not later than ten (10) days following the date that
all of the FCC Orders for transfer of the Station have become Final Orders (the
"Closing Date"). Subject to the satisfaction (or waiver, if applicable) of all
of the conditions set forth in Article 8 The Closing shall be held at 10:00 A.M.
local time at the offices of AT&T Corp., 000 Xxxxxxxxxx Xxxx, Xxxxxxx Xxxxx,
X.X. 00000, or at such other time and place as the parties may agree.
Notwithstanding the foregoing, a Closing with LIN as the Buyer shall not occur
before March 1, 1998.
SECTION 11.2 DELIVERY BY SELLER. At or before the Closing, Seller
shall deliver to Buyer the following:
(a) Agreements and Instruments. The following bills of sale,
assignments and other instruments of transfer, dated as of the Closing Date and
duly executed by Seller:
(i) the Xxxx of Sale;
(ii) the Assignment of FCC Licenses;
(iii) the Assignment of Contracts and Leases;
(iv) the Assumption Agreement;
(v) deeds in a form reasonably acceptable to Buyer for all
Real Property owned by Seller in a form commonly used
in the jurisdictions where such Real Property is
located; and
(vi) Such other instruments of transfer, duly executed by
the Seller, as are necessary to transfer the Assets in
accordance with applicable Law.
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(b) Consents. Copies of all consents Seller has been able to obtain to
effect the assignment to Buyer of Assumed Contracts.
(c) Certified Resolutions. A copy of the resolutions of directors of
Seller, certified as being correct and complete and then in full force and
effect, authorizing the execution, delivery and performance of this Agreement,
and of the other Seller Documents, and the consummation of the transactions
contemplated hereby and thereby.
(d) Officers' Certificates. A certificate of Seller signed by an
officer of Seller certifying the matters set forth in Section 8.2(c).
(e) Secretary's Certificate. A certificate signed by the Secretary of
Seller as to the incumbency of the officers of Seller executing this Agreement
or any of the other Seller Documents on behalf of Seller and other customary
matters.
SECTION 11.3 DELIVERY BY BUYER. At or before the Closing, Buyer shall
deliver to Seller the following:
(a) Purchase Price Payment. The Purchase Price in the amount and
manner set forth in Article 2.
(b) Assumption Agreement. The Assumption Agreement dated as of the
Closing Date and duly executed by Buyer.
(c) Certified Resolutions. Copies of the resolutions of the directors
of Buyer, Certified as being correct and complete and then in full force and
effect, authorizing the execution, delivery and performance of this Agreement
and of the other Buyer Documents, and the consummation of the transactions
contemplated hereby and thereby.
(d) Officers' Certificate. A certificate of Buyer signed by an officer
of Buyer certifying the matters set forth in Section 8.3(b).
(e) Secretary's Certificate. A certificate signed by the Secretary of
Buyer as to the incumbency of the officers of Buyer executing this Agreement or
any of the other Buyer Documents on behalf of Seller and other customary
matters.
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ARTICLE 12
SURVIVAL; INDEMNIFICATION
SECTION 12.1 SURVIVAL OF REPRESENTATIONS. Unless otherwise set forth
herein, all representations and warranties, covenants and agreements of Seller
and Buyer contained in this Agreement or in any certificate furnished pursuant
hereto shall survive the Closing Date and shall remain in full force and effect
to the following extent: (a) unless otherwise specified below, representations,
warranties and covenants shall survive for a period of one (1) year after the
Closing Date, (b) the covenants and agreements in this Article 12 shall continue
in full force and effect until fully discharged , (c) the representation and
warranties made in Sections 3.1, 3.3, 3.5, 3.13, 4.1, 4.2, 4.9 and 4.10, and the
covenants given in Sections 5.1 (b), 5.2(b)(iv) and 5.2(k) of this Agreement
shall survive indefinitely, (d) the representations and warranties made and
covenants given in Sections 3.15, 3.16, 3.18 and 6.4 shall survive for five
years, and (e) the representations and warranties made and covenants given in
Sections 3.20 shall survive for five years, and (f) any representation,warranty,
covenant or agreement that is the subject of a claim which is asserted in a
reasonably detailed writing prior to the expiration of the applicable survival
period shall survive with respect to such claim or dispute until the final
resolution thereof.
SECTION 12.2 INDEMNIFICATION BY SELLER. Subject to the conditions and
provisions of Section 12.4 and Section 12.5, from and after the Closing Date,
Seller agrees to indemnify, defend and hold harmless Buyer from and against and
in any respect of, on a net after-tax and insurance basis, any and all Losses,
asserted against, resulting to, imposed upon or incurred by Buyer, directly or
indirectly, by reason of or resulting from: (a) any misrepresentation or breach
of the representations and warranties of Seller contained in or made pursuant to
this Agreement or any other Seller Document; (b) any liability which is not an
Assumed Liability; (c) any liability for failure by Seller to comply with any
applicable bulk transfer laws; (d) any breach by Seller of any covenants of
Seller contained in or made pursuant to this Agreement or any other Seller
Document or (e) (i) the occupancy, operation, use or control of the Real
Property or the Leased Premises prior to the Closing Date or (ii) the operation
of the Business prior to the Closing Date, in each case incurred or imposed
pursuant to any Environmental Laws, including, without limitation, any release
or storage of any Hazardous Substances on, into, at or from (A) any such owned
Real Properties or Leased Premises or (B) any real property or facility owned by
a third party at which Hazardous Substances attributable to the operation of the
Business were sent prior to the Closing Date by the Business.
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SECTION 12.3 INDEMNIFICATION BY BUYER. Subject to the conditions and
provisions of Section 12.4 and Section 12.5, from and after the Closing Date,
Buyer hereby agrees to indemnify, defend and hold harmless Seller from, against
and with respect of, on a net after-tax and insurance basis, any and all Losses,
asserted against, resulting to, imposed upon or incurred by Seller, directly or
indirectly, by reason of or resulting from: (a) any failure by Buyer to pay,
perform or discharge any Liabilities assumed by Buyer pursuant hereto; (b) the
business or operations of the Station; (c) any misrepresentation or breach of
the representations and warranties of Buyer contained in or made pursuant to
this Agreement or any other Buyer Document; (d) any breach by Buyer of any
covenants of Buyer contained in or made pursuant to this Agreement or any other
Buyer Document or (e) (i) the occupancy, operation, use or control of the Real
Property or the Leased Premises after the Closing Date or (ii) the operation of
the Business after the Closing Date, in each case incurred or imposed pursuant
to any Environmental Laws, including without limitation, any release or storage
of any Hazardous Substances on, into, at or from (A) any such Real Properties or
Leased Premises or (B) any real property or facility owned by a third party at
which Hazardous Substances attributable to the operation of the Business were
sent after the Closing Date by the Buyer.
SECTION 12.4 LIMITATION ON INDEMNIFICATION. Notwithstanding any other
provision of this Agreement to the contrary, in no event shall Losses include a
Party's incidental or consequential damages. Neither Seller nor Buyer shall be
liable to the other in respect of any indemnification pursuant to Sections
12.2(a) or (d) and 12.3(c) except to the extent that (a) the aggregate Losses of
the party to be indemnified under this Agreement exceed $250,000 (the "Basket
Amount") and then only to the extent of the excess over the Basket Amount,
except that this Section 12.4(a) shall not apply to indemnification pursuant to
Section 12.2(a) based on any misrepresentation or breach of the representations
and warranties of Seller contained in Section 3.20 or indemnification pursuant
to Section 12.2(d), and (b) the aggregate amount of such indemnification,
together with all other indemnification by the indemnifying party for Losses of
the party to be indemnified under this Agreement is less than fifteen percent
(15%) of the Purchase Price, except that this Section 12.4(b) shall not apply to
indemnification pursuant to Section 12.2(d) based on any breach by Seller of the
covenants contained in Sections 5.1 (b), 5.1 (c) (but only as (c) relates to
network affiliation agreements, local marketing arrangements or the exercise of
the Option) or 5.1 (e) or Sections 5.2(b)(iv) or 5.2(k).
SECTION 12.5 CONDITIONS OF INDEMNIFICATION. The obligations and
liabilities of Seller and of Buyer hereunder with respect to their respective
indemnities pursuant to this Section 12.5, resulting from any Losses, shall be
subject to the following terms and conditions:
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(a) The party seeking indemnification (the "Indemnified Party") must
give the other party or parties, as the case may be (the "Indemnifying Party"),
notice of any such Losses promptly after the Indemnified Party receives notice
thereof, provided that the failure to give such notice shall not affect the
rights of the Indemnified Party hereunder except to the extent that the
Indemnifying Party shall have suffered actual damage by reason of such failure.
(b) The Indemnifying Party shall have the right to undertake, by
counsel or other representatives of its own choosing, the defense of such Losses
at the Indemnifying Party's risk and expense.
(c) In the event that the Indemnifying Party shall elect not to
undertake such defense, or, within a reasonable time after notice from the
Indemnified Party of any such Losses, shall fail to defend, the Indemnified
Party (Upon further written notice to the Indemnifying Party) shall have the
right to undertake the defense, compromise or settlement of such Losses, by
counsel or other representatives of its own choosing, on behalf of and for the
account and risk of the Indemnifying Party (subject to the right of the
Indemnifying Party to assume defense of such Losses at any time prior to
settlement, compromise or final determination thereof). In such event, the
Indemnifying Party shall pay to the Indemnified Party, in addition to the other
sums required to be paid hereunder, the costs and expenses incurred by the
Indemnified Party in connection with such defense, compromise or settlement as
and when such costs and expenses are so incurred.
(d) Anything in this Section 12.5 to the contrary notwithstanding (a)
if there is a reasonable probability that Losses may materially and adversely
affect the Indemnified Party other than as a result of money damages or other
money payments, the Indemnified Party shall have the right, at its own cost and
expense, to participate in the defense, compromise or settlement of the Losses,
(b) the Indemnifying Party shall not, without the Indemnified Party's written
consent, settle or compromise any Losses or consent to entry of any judgment
which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the Indemnified Party of a release from all
liability in respect of such Xxxx.xxx in form and substance satisfactory to the
Indemnified Party, (c) in the event that the Indemnifying Party undertakes
defense of any Losses, the Indemnified Party, by counsel or other representative
of its own choosing and at its sole cost and expense, shall have the right to
consult with the Indemnifying Party and its counsel or other representatives
concerning such Losses and the Indemnifying Party and the Indemnified Party and
their respective counsel or other representatives shall cooperate with respect
to such Losses, (d) in the event that the Indemnifying Party undertakes defense
of any Losses, the Indemnifying Party shall have an obligation to keep the
Indemnified Party informed of the status of the
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defense of such Losses and furnish the Indemnified Party undertakes defense of
any Losses, the Indemnifying Party shall have an obligation to keep the
Indemnified Party informed of the status of the defense of such Losses and
furnish the Indemnified Party with all documents, instruments and information
that the Indemnified party shall reasonably request in connection therewith, (e)
in the event of a dispute arising under Section 12.2(e), or 12.3(e) Buyer and
Seller agree to submit the dispute for resolution to a consultant with expertise
in environmental sciences selected jointly by Buyer and Seller. To assist in
his/her deliberations, the consultant may review existing data and written
materials submitted by the parties, if he/she so determines, and (f) Buyer
agrees that it shall not conduct invasive environmental sampling or testing,
except as required by Environmental Law, by an order or mandate of a
Governmental Authority or as necessary to respond to an emergency situation,
unless it has provided Sellers with advance notice of such action in writing,
which notice will include an explanation of the reasonable basis for such
sampling or testing. Seller shall not indemnify Buyer until and unless it is
notified in advance of such sampling or testing activities.
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IN WITNESSES WHEREOF, each of the parties hereto has executed this
Asset Purchase Agreement, or has caused this Asset Purchase Agreement to be duly
executed and delivered in its name on its behalf, all as of the day and year
first above written.
LCH COMMUNICATIONS, INC.
BY
-----------------------------------
Name:
Title:
RANGER HOLDINGS CORP.
By
-----------------------------------
Name:
Title:
LIN BROADCASTING CORPORATION
By
-----------------------------------
Name:
Title:
LIN TELEVISION CORPORATION
By
-----------------------------------
Name:
Title:
LIN MICHIGAN BROADCASTING
CORPORATION
By
-----------------------------------
Name:
Title:
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ANNEX 1
DEFINITIONS
"Accounting Firm" shall have the meaning specified in Section 2.5.
"Accounts Receivable" means all accounts receivable with respect to
the Stations as of the end of the broadcast day immediately preceding the
Closing Date.
"Affiliate" of a person means a person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first mentioned person.
"Assets" shall have the meaning set forth in Section 2.1.
"Assumed Liabilities" shall have the meaning specified in Section
2.6(a).
"Assignment of Contracts and Leases" means that certain Assignment of
Contracts and Leases, to be dated as of the Closing Date and executed by Seller
in form and substance reasonably satisfactory to Buyer and Seller.
"Assignment of FCC Licenses" means that certain Assignment of FCC
Licenses, to be dated as of the Closing Date and executed by Seller, in form and
substance reasonably satisfactory to Buyer and Seller.
"Assumed Contract" means all contracts, leases and agreements
applicable solely to the Business.
"Assumption Agreement" means that certain Assumption Agreement, to be
dated the Closing Date and executed by Buyer and Seller, in form and substance
reasonably satisfactory to Buyer and Seller.
"Basket Amount" shall have the meaning set forth in Section 12.4.
"Benefit Arrangement" means a benefit program or practice for bonuses,
incentive compensation, vacation pay, severance pay, insurance, restricted
stock, stock options, employee discounts, company cars tuition reimbursement or
any other perquisite or benefit (including, without limitation, any fringe
benefit under Section 132 of the Code) to employees, officers or independent
contractors that is not a Plan.
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"Xxxx of Sale" means that certain Xxxx of Sale and Assignment of
Assets, dated as of the Closing Date and executed by Seller, in form and
substance reasonably satisfactory to Buyer and Seller.
"Buyer Documents" shall mean, collectively, this Agreement and the
Assumption Agreement.
"Cash Flow Participation Growth Agreements" means the agreements
relating to Cash Flow Participation Growth Units that are listed on Schedule 2.1
(g).
"Closing" means the closing of the purchase, assignment and sale of
the Assets contemplated hereunder.
"Closing Date" means the time and date on which the Closing takes
place, as established by Section 11. 1.
"Code" means the internal Revenue Code of 1986, as amended, and all
laws promulgated pursuant thereto or in connection therewith.
"Control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management
policies of a person, whether through the ownership of stock, as trustee or
executor, by contract or credit arrangement or otherwise;
"Communications Act" means the Communications Act of 1934, as amended.
"Consulting Agreement" means the Agreement entered into among LCH,
LIN, and Michigan, dated December 28, 1994, as renewed from time to time.
"Current FCC Policy" shall have the meaning set forth in the Merger
Agreement.
"Divestiture" shall have the meaning set forth in the Merger
Agreement.
"Effective Time" shall have the meaning set forth in the Merger
Agreement.
"Encumbrances" mean any mortgages, pledges, liens, security interests,
restrictions, defects in title, easements, encumbrances, and any other matters
affecting title.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and all Laws promulgated pursuant thereto or in connection therewith.
"Excluded Assets" shall have the meaning specified in Section 2.2.
"FCC" means the Federal Communications Commission. "FCC Licenses"
shall have the meaning specified in Section 2.1 (a).
"FCC License" means any permit, license, waiver or authorization that
a person is required by the FCC to hold in connection with the operation of its
business.
"FCC Order" means an order or orders of the FCC, or of the Staff of
the FCC acting under delegated authority, consenting to the assignment to Buyer
of the FCC Licenses for the stations.
"Final Order" means an FCC Order as to which the time for filing a
request for administrative or judicial review, or for instituting administrative
review sua sponte, shall have expired without any such filing have been made or
notice of such review having been issued; or, in the event of such filing or
review sua sponte, as to which such filing or review shall have been disposed of
favorably to the grant and the time for seeking further relief with respect
thereto shall have expired without any request for such further relief having
been filed, except in each case as may be waived in writing by Buyer.
"Governmental Authority" means any agency, board, bureau, court,
commission, department, instrumentality or administration of the United States
government, any state government or any local or other governmental body in a
state, territory or possession of the United States or the District of Columbia.
"Government Entity" shall have the meaning set forth in the Merger
Agreement.
"Xxxx-Xxxxx-Xxxxxx" or HSR Act means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and all Laws promulgated pursuant thereto
or in connection therewith.
"HSR Filing" shall have the meaning specified in Section 5.2.
"Income Taxes" shall mean all federal state and local taxes based upon
income earned by Seller which is attributed to income from the Assets which
includes all taxes
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installments of estimated taxes, assessments, deficiencies, levies, imports,
duties, license fees, registration fees, withholdings, or other similar charges
of every kind, character or description imposed by any Governmental Authorities.
"Indemnified Party" and "Indemnifying Party" shall have the respective
meanings specified in Section 12.5(a).
"Intellectual Property" shall have the meaning specified in Section
2.1 (d).
"Knowledge" means to the knowledge of the executive officers of the
party to whom such term is being applied, without requiring such executive
officers to make or assuming they have made, any investigation of the facts, but
is relying on such facts as have actually come to their attention.
"Laws" means any federal, state or local law, statute, code,
ordinance, regulation, order, writ, injunction, judgment or decree applicable to
the specified Person and to the businesses and assets thereof.
"Liabilities" shall mean as to any Person, all debts, adverse claims,
liabilities and obligations, direct, indirect, absolute or contingent of such
Person, whether accrued, vested or otherwise, whether in contract, tort, strict
liability or otherwise and whether or not actually reflected, or required by
generally accepted accounting principles to be reflected, in such Person's
balance sheets or other books and records.
"Losses" means any and all demands, claims, complaints, actions or
causes of action, suits, proceedings, investigations, arbitrations, assessments,
losses, damages, liabilities, obligations (including those arising out of any
action, such as any settlement or compromise thereof or judgment or award
therein) and any costs and expenses, including, without limitation, reasonable
attorney's and other advisor's fees and disbursements.
"Material Adverse Effect" means a material adverse effect on the
business, assets or financial condition of the Stations taken as a whole, except
for any adverse affect resulting from general economic or other conditions
applicable to the television broadcast industry in general.
"Merger" shall have the meaning set forth in the Merger Agreement.
"Operating Contracts" shall mean the contracts referred to in Section
2.1 (h).
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"Ordinary Course of Business" means, with respect to Seller, actions
taken in the ordinary course of business consistent with past practices of
Seller in relation to the Business or any actions taken pursuant to the
requirements of law or contracts existing on the date hereof or permitted to be
entered into under Article 5.
"Pension Plan" means an "employee pension benefit plan" as such term
is defined in Section 3(2) of ERISA.
"Permitted Encumbrances" means (a) Encumbrances arising in connection
with equipment or maintenance financing or leasing, (b) Encumbrances on Real
Property that do not interfere with the use of the Real Property in the
operations or business of the Stations, (c) Encumbrances for Taxes not,yet due
and payable or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on Seller's
books in accordance with generally accepted accounting principles, or (d)
Encumbrances that, individually or in the aggregate, do not and would not
materially detract from the value of any of the Assets or materially interfere
with the use thereof as currently used.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization, other form
of business or legal entity or Governmental Authority.
"Plan" means any plan, program or arrangement, whether or not written,
that is or was an "employee benefit plan" as such term is defined in Section
3(3) of ERISA and (a) which was or is established or maintained by Seller, (b)
to which Seller contributed or was obligated to contribute or to fund or provide
benefits; or (c) which provides or promises benefits to any person who performs
or who has performed services for Seller and because of those services is or has
been (i) a participant therein or (ii) entitled to benefits thereunder.
"Program Contracts" shall have the meaning specified in Section 2.1
(e).
"Purchase Price" shall have the meaning specified in Section 2.3.
"Qualified Plan" means a Pension Plan that satisfies, or is intended
by Seller to satisfy, the requirements for tax qualification described in
Section 401 of the Code.
"Real Property" means all realty, towers, fixtures, easements,
rights-of-way, leasehold and other interests in real property, buildings and
improvements owned, leased, occupied or used in the business and operations of
the Station.
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"Schedules" shall mean the disclosure schedules delivered by Seller to
Buyer in connection herewith.
"Seller Documents" shall mean, collectively, this Agreement, the
Assignment of Contracts and Leases, the Xxxx of Sale, the Assignment of FCC
Licenses, and the Assumption Agreement.
"Seller Tax Returns" means all federal, state, local, foreign and
other applicable Tax returns, declarations of estimated Tax reports required to
be filed by any of Seller (without regard to extensions of time permitted by law
or otherwise).
"Station Contracts" shall have the meaning specified in Section 2.1
(h).
"Taxes" shall have the meaning specified in Section 3.13(n).
"Trade-out Agreements" shall have the meaning specified in Section 2.1 (f).
"Transfer Taxes" shall have the meaning specified in Section 14.3.
"Welfare Plan" means an "employee welfare benefit plan" as such term
is defined in Section 3(l) of ERISA.
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