Exhibit 2.3
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STOCK PURCHASE AGREEMENT
BETWEEN
GRANITE BROADCASTING CORPORATION
AND
THE XXXXX X. XXXXXXX
CHARITABLE REMAINDER UNITRUST
dated as of
June 26, 1998
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TABLE OF CONTENTS
Page
1. Definitions....................................................................................................2
1.1 Defined Terms........................................................................................2
1.2 Accounting Terms.....................................................................................8
1.3 Other Definition Provisions..........................................................................8
2. Purchase of Shares, Purchase Price and Method of Payment.......................................................9
2.1 Purchase of Shares...................................................................................9
2.2 Consideration........................................................................................9
2.2.1 Purchase Price............................................................................9
4. Representations Relating to Pacific...........................................................................10
4.1 Organization and Standing...........................................................................10
4.2 Capital Stock.......................................................................................10
4.2.1 Outstanding Stock........................................................................10
4.2.2 No Encumbrances..........................................................................11
5. Representations and Warranties of Seller......................................................................11
5.1 Organization and Standing...........................................................................11
5.2 Authorization and Binding Obligations...............................................................11
5.3 No Contravention; Consents..........................................................................12
5.3.1 No Contravention.........................................................................12
5.3.2 Consent..................................................................................13
5.4 Ownership of Shares.................................................................................13
6. Representations and Warranties of Buyer.......................................................................13
6.1 Organization and Standing...........................................................................13
6.2 Authorization and Binding Obligations...............................................................14
6.3 No Contravention....................................................................................14
6.4 Litigation..........................................................................................15
6.5 Qualifications as Broadcasting Licensee.............................................................16
6.6 Financial Capacity..................................................................................16
7. Conduct Pending Closing.......................................................................................16
7.1 Seller's Covenants..................................................................................16
7.1.1 Organization, Etc........................................................................16
7.1.2 Litigation...............................................................................17
7.1.3 Offers to Purchase.......................................................................17
7.1.4 No Breach of Representations and Warranties..............................................17
7.1.5 No Violations............................................................................18
7.1.6 Encumbrances; Transfers..................................................................18
(i)
Page
7.2 Buyer's Covenants...................................................................................18
7.2.1 Organization, Etc........................................................................18
7.2.2 Litigation...............................................................................19
7.2.3 No Breach of Representations and Warranties..............................................19
7.2.4 No Violations............................................................................19
8. Conditions Precedent to the Obligations of the Parties........................................................20
8.1 Conditions Precedent to the Obligation of Buyer.....................................................20
8.1.1 Accuracy of Representations and Warranties...............................................20
8.1.2 Compliance with Agreement................................................................20
8.1.3 No Obstructive Proceeding................................................................21
8.1.4 Adverse Change...........................................................................22
8.1.5 Authorization............................................................................23
8.1.6 Opinions of Counsel......................................................................23
8.1.7 Proceedings..............................................................................23
8.1.8 HSRA Waiting Period......................................................................24
8.1.9 FIRPTA Affidavits........................................................................24
8.2 Conditions to Obligations of Seller.................................................................24
8.2.1 Accuracy of Representations and Warranties...............................................24
8.2.2 Compliance with Agreement................................................................25
8.2.3 No Obstructive Proceeding................................................................25
8.2.4 Proceedings..............................................................................27
8.2.5 Opinion of Counsel.......................................................................27
8.2.6 HSRA Waiting Period......................................................................27
8.2.7 Authorizations...........................................................................27
8.2.8 Payment..................................................................................28
8.2.9 Officer's Certificate....................................................................28
9. Instruments of Conveyance and Transfer; Closing Certificates..................................................28
9.1 Instruments of Conveyance and Transfer of Shares....................................................28
9.2 Closing Certificate.................................................................................29
10. Brokers......................................................................................................29
11. Survival; Indemnification....................................................................................30
11.1 Survival...........................................................................................30
11.2 Seller's Indemnification...........................................................................30
11.3 Buyer's Indemnification............................................................................30
11.4 Indemnification Claim..............................................................................31
11.5 Notice of Claim....................................................................................32
11.6 Date of Notice of Claim............................................................................34
11.7 Consent of Indemnitee..............................................................................34
(ii)
Page
12. Termination..................................................................................................34
12.1 Termination........................................................................................34
12.1.1 Buyer...................................................................................34
12.1.2 Seller..................................................................................34
12.1.3 Mutual Consent..........................................................................35
12.1.4 By Seller Upon Breach...................................................................35
12.1.5 By Buyer Upon Breach....................................................................35
12.2 Limitations........................................................................................35
13. Confidentiality..............................................................................................36
13.1 Seller's Confidentiality...........................................................................36
13.2 Buyer Confidentiality..............................................................................36
13.3 Specific Performance...............................................................................38
14. Miscellaneous................................................................................................38
14.1 Grace Period.......................................................................................38
14.1.1 Default Grace Period....................................................................38
14.1.2 Final Order Grace Period................................................................38
14.2 Costs, Expenses, Etc...............................................................................39
14.3 Further Assurances.................................................................................40
14.4 Notice of Proceedings..............................................................................40
14.5 Notices............................................................................................41
14.6 Headings and Entire Agreement; Amendment...........................................................42
14.7 Waiver.............................................................................................42
14.8 Binding Effect and Assignment......................................................................43
14.9 Counterparts.......................................................................................43
14.10 Exhibits and Attachments..........................................................................43
14.11 Rights Cumulative.................................................................................44
14.12 Governing Law.....................................................................................44
14.13 Severability......................................................................................44
14.14 Third Party Rights................................................................................44
14.15 Press Releases....................................................................................45
14.16 Specific Performance..............................................................................45
14.17 Concurrent Closing................................................................................45
(iii)
EXHIBITS
Exhibit A - Form of Opinion of Counsel to Seller
Exhibit B - Form of Opinion of Counsel to Buyer
SCHEDULES
Schedule 1-F - Excluded KOFY Assets; Excluded Contracts
Schedule 4.10.1 - Station Employee Benefit Plans
Schedule 4.10.2 - Terminated Employee Benefit Plans
(iv)
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, dated as of June __, 1998, between GRANITE BROADCASTING
CORPORATION, a Delaware corporation ("Buyer"), and the Trust for Public Land as
trustee for The Xxxxx X. Xxxxxxx Charitable Remainder Unitrust (the "Seller").
WITNESSETH:
WHEREAS, Pacific FM Incorporated, a California corporation ("Pacific") owns
and operates, under license from the Federal Communications Commission (the
"FCC"), television station KOFY, Channel 20, San Francisco, California and its
auxiliary facilities ("KOFY"), including all of the assets associated therewith;
WHEREAS, Seller owns 637 shares of outstanding capital stock of Pacific
(the "Seller's Shares"); and
WHEREAS, Buyer desires to purchase from the Seller all of the outstanding
capital stock of Pacific owned by Seller, and Seller desires to sell and assign
all of the outstanding capital stock of Pacific owned by Seller to Buyer, all in
accordance with the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises contained herein and
for the other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
1.1 Defined Terms.
"Accrued Pacific Taxes" means all Taxes of Pacific accruing during any
tax period ending on or prior to the Closing Date, including but not limited to
Taxes attributable to: (i) the direct or indirect transfer and assignment of the
Excluded Pacific Assets from Pacific and its Subsidiaries to Stockholder Co. and
the assumption by Stockholder Co. of the Excluded Pacific Liabilities; and (ii)
the distribution of the stock of Stockholder Co. from Pacific to its
stockholders.
"Affiliate" (and, with a correlative meaning, "Affiliated") shall
mean, with respect to any Person, any other Person that directly, or through
one or more intermediaries, controls or is controlled by or is under common
control with such first Person, and, if such a Person is an individual, any
member of the immediate family (including parents, spouse and children) of
such individual and any trust whose principal beneficiary is such individual
or one or more members of such immediate family
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and any Person who is controlled by any such member or trust. As used in this
definition, "control" (including, with correlative meanings, "controlled by"
and "under common control with," shall mean possession, directly or
indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise)).
"Agreement" means this Stock Purchase Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Buyer" has the meaning set forth in the recitals hereto.
"Buyer's Representative" has the meaning set forth in Section 13.2
hereof.
"Closing" means the consummation of the purchase, assignment and sale
of the shares of Pacific Common Stock as contemplated hereby.
"Closing Date" means a time and business date to be selected by
Buyer, which date shall occur between: (i) two business days after the date
on which the conditions specified in Section 8 and Section 14.17 hereof shall
have been met or waived
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by the beneficiary thereof; and (ii) subject to the provisions of Section
14.1 hereof, the Outside Closing Date, unless Buyer and Pacific mutually
agree to a different time and date.
"Closing Place" means the offices of Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P., 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000
or such other place as the Buyer and Pacific may agree.
"Code" means the Internal Revenue Code of 1986, as amended, and the
treasury regulations promulgated thereunder, as in effect from time to time.
"Communications Act" means the Communications Act of 1934, as amended,
and the rules, regulations and policies promulgated thereunder, as in effect
from time to time.
"Date of Notice of Claim" has the meaning set forth in Section 11.6
hereof.
"Effective Time" means 12:01 a.m. on the Closing Date.
"Encumbrances" means all mortgages, security interests, pledges,
claims, liens, charges, covenants, easements, rights of way, restrictions,
encroachments, leases, occupancies, tenancies, options, preemptive purchase
or other rights or any other encumbrances whatsoever.
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"Excluded Pacific Assets" means: (a) Accounts Receivable; (b) cash
on hand and in bank accounts that relate exclusively to the operation of
Pacific prior to the Closing Date; and (c) any Contract, Employee Benefit
Plan, agreement or asset listed on Schedules 1-F or 4.10.1 or 4.10.2.
"Excluded Pacific Liabilities" means all Liabilities (including
Accrued Pacific Taxes), commitments or other obligations of KOFY, Pacific,
Stockholders (as defined in the GL Stock Purchase Agreement) or any of their
Affiliates or stockholders of any kind and nature, whether direct or indirect,
absolute, accrued, contingent or otherwise, or due or to become due, asserted or
unasserted, matured or unmatured, other than Included Pacific Obligations (as
defined in the GL Stock Purchase Agreement).
"FCC" has the meaning set forth in the recitals hereto.
"FCC Applications" has the meaning set forth in Section 3.1 of the GL
Stock Purchase Agreement
"FCC Consent" has the meaning set forth in Section 3.2 of the GL Stock
Purchase Agreement.
"Final Order" has the meaning set forth in the GL Stock Purchase
Agreement.
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"GAAP" means generally accepted accounting principles in effect in
the United States of America at the time of determination, and which are
consistently applied.
"GL Stock Purchase Agreement" means the Stock Purchase Agreement,
dated October 3, 1997, among Buyer, Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and
Pacific providing for the sale of 780.3 shares of the Pacific Common Stock from
Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx to Buyer.
"Governmental Authority" means any court or federal, state, municipal
or other governmental or quasi-governmental authority, department, commission,
board, agency or instrumentality, foreign or domestic, or any employee or agent
thereof.
"HSRA" means the Xxxx-Xxxxx-Xxxxxx Act.
"Indemnitee" has the meaning set forth in Section 11.4 hereof.
"Indemnitor" has the meaning set forth in Section 11.4 hereof.
"Material Adverse Effect" means any material and adverse effect
upon the business, assets, prospects, liabilities, financial condition,
rights or results of operations of KOFY, the
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broadcasting assets of Pacific, or upon the ability of Buyer, Seller to
perform in any material respect their respective obligations under this
Agreement.
"Notice of Claim" has the meaning set forth in Section 11.4 hereof.
"Outside Closing Date" shall mean July 1, 1998.
"Pacific" has the meaning set forth in the recitals hereto.
"Pacific Common Stock" has the meaning set forth in Section 4.2.1
hereof.
"Person" shall mean any natural person, corporation, partnership,
limited liability company, firm, joint venture, joint-stock company, trust,
association, unincorporated entity of any kind, trust, governmental or
regulatory body or other entity.
"Purchase Price" has the meaning set forth in Section 2.2.1 hereof.
"Seller's Shares" has the meaning set forth in the recitals hereof.
"Shares" means all of the issued and outstanding shares of Pacific
Common Stock.
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"Stockholder Co." means a direct wholly-owned subsidiary of Pacific,
that shall be assigned all the Excluded Pacific Assets and assume all of the
excluded Pacific Liabilities prior to the Closing.
"Subsidiary" means, with respect to any Person, any corporation or
other entity, whether now existing or hereafter organized or acquired, of which
securities or other ownership interests are at the time owned by such Person
and/or one or more Subsidiaries of such Person.
1.2 Accounting Terms. All terms of an accounting nature not
specifically defined herein shall have the respective meanings given to them
under GAAP.
1.3 Other Definition Provisions. The masculine form of words
includes the feminine and the neuter and vice versa, and, unless the context
otherwise requires, the singular form of words includes the plural and vice
versa. The words "herein," "hereof," "hereunder" and other words of similar
import when used in this Agreement refer to this Agreement as a whole, and
not to any particular section or subsection.
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2. Purchase of Shares, Purchase Price and Method of Payment.
2.1 Purchase of Shares. In accordance with the terms and upon
satisfaction of the conditions contained in this Agreement, at the Closing,
Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer
shall purchase from Seller, all of the shares of Pacific Common Stock owned by
Seller, consisting of 637 shares of Pacific Common Stock.
2.2 Consideration.
2.2.1 Purchase Price. The Purchase Price for the Seller's Shares
of Pacific Common Stock to be sold and transferred pursuant to this Agreement
shall be Fifty-Nine Million Eight Hundred Forty-Eight Thousand Eight Hundred
Fifty-Seven Dollars ($59,848,857). At the Closing, Buyer will pay to Seller by
wire transfer of immediately available federal funds (pursuant to wire
instructions that Pacific shall deliver to Buyer prior to Closing) the Purchase
Price.
3. FCC Notification. Buyer and Seller shall timely file with the FCC any
required notifications and documentation with respect to this Agreement and
the transactions contemplated herein.
9
4. Representations Relating to Pacific. Seller is informed and believes
and based thereon, represents to Buyer that, as of the date hereof:
4.1 Organization and Standing. Each of Pacific and its
Subsidiaries: (a) is a corporation duly organized, validly laws of the State
of California; (b) has full corporate power and authority to own, lease and
use its properties and to conduct its business and operations as now being
conducted and proposed to be conducted under existing agreements and to
perform the obligations required to be performed by it hereunder and to
consummate the transactions contemplated hereby; (c) is duly qualified to do
business in every jurisdiction in which the nature of its business requires
such qualification, except where the failure to so qualify would not have a
Material Adverse Effect.
4.2 Capital Stock.
4.2.1 Outstanding Stock. The authorized capital stock of
Pacific consists solely of 12,000 shares of common stock, par value $10.00
per share ("Pacific Common Stock"). As of the date hereof and as of the
Closing, the only issued and outstanding capital stock of Pacific is, and
will be, the Shares,
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which consist of 1,530 shares of Pacific Common Stock, of which Shares 637
constitute the Seller's Shares.
4.2.2 No Encumbrances. The Seller's Shares will at the Closing be
free and clear of all Encumbrances.
5. Representations and Warranties of Seller. Seller represents and warrants
to Buyer that, as of the date hereof:
5.1 Organization and Standing. Seller: (a) is a trust duly
organized, validly existing and in good standing under the laws of the state
of its incorporation or formation; and (b) has full power and authority to
enter into this Agreement and to perform the obligations required to be
performed by it hereunder and to consummate the transactions contemplated
hereby.
5.2 Authorization and Binding Obligations. The execution, delivery and
performance by Seller of this Agreement and the agreements, exhibits and other
documents to be executed and delivered by Seller pursuant hereto or in
connection herewith have been duly and validly authorized and, upon execution
thereof, will be duly executed and delivered by Seller, and constitute the valid
and binding agreement of Seller enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, moratorium or
other laws relating to or
11
affecting creditors' rights generally and the exercise of judicial discretion
in accordance with general equitable principles.
5.3 No Contravention; Consents.
5.3.1 No Contravention. The execution, delivery and
performance of this Agreement and the other documents to be executed in
connection herewith, the consummation of the transactions contemplated hereby
and thereby and the compliance with the provisions hereof and thereof by
Seller do not and will not, after the giving of notice, or the lapse of time,
or otherwise: (a) conflict with or violate any provisions of the trust
documents or other formation or governance documents of Seller; (b) result in
the breach of any of the terms of, constitute a default under, conflict with,
result in, or constitute grounds for, the termination or alteration of, or
result in the acceleration of the performance required by the terms of, any
agreement, license, permit or other instrument to which Seller is a party or
by which Seller or any of its properties is bound or affected, or result in
the creation of any Encumbrance upon any of its assets; or (c) violate,
result in the breach of, or conflict with, any laws, regulations, orders,
writs,
12
ordinances, injunctions, decrees, rules, or judgments applicable to such
Seller or any of its assets.
5.3.2 Consent. No consent, waiver, authorization or approval
from, or filing of any notice or report with, any Governmental Authority or
other Person is necessary in connection with the execution, delivery or
performance by Seller of this Agreement or any of the documents or transactions
contemplated hereby (with or without the giving of notice, the lapse of time or
both).
5.4 Ownership of Shares. Seller is the record and beneficial owner of
the Seller's Shares free and clear of all Encumbrances. At the Closing, Seller
shall deliver to Buyer duly endorsed certificates evidencing such shares, free
and clear of all Encumbrances.
6. Representations and Warranties of Buyer. Buyer represents, warrants and
covenants to Pacific that:
6.1 Organization and Standing. Buyer: (a) is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware; (b) has full corporate power and authority to own its properties
and to transact the business in which it is currently engaged and to perform
the
13
obligations required to be performed by it hereunder and to consummate the
transactions contemplated hereby; and (c) is duly qualified to do business
and in good standing as a foreign corporation in every jurisdiction in which
the nature of the business to be conducted by it requires such qualification,
except where the failure to so qualify would not materially adversely affect
the transactions contemplated hereby.
6.2 Authorization and Binding Obligations. The execution, delivery and
performance of this Agreement and the agreements, exhibits and other documents
to be executed and delivered by Buyer pursuant hereto have been duly and validly
authorized and, upon execution thereof, will be duly executed and delivered by
Buyer and constitute valid and binding agreements of Buyer enforceable in
accordance with their terms except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other laws relating to or affecting
creditors' rights generally and the exercise of judicial discretion in
accordance with general equitable principles.
6.3 No Contravention. The execution, delivery and performance of
this Agreement and the other documents to be executed in connection herewith,
the consummation of the
14
transactions contemplated hereby and thereby in accordance with the terms
hereof and thereof and the compliance with the provisions hereof and thereof
by Buyer do not and will not, after the giving of notice, or the lapse of
time, or otherwise: (a) conflict with or violate any provisions of the
Certificate of Incorporation or Bylaws of Buyer; (b) result in the breach of,
conflict with, or constitute a default under, the provisions of any agreement
or other instrument to which Buyer is a party or by which the property of
Buyer is bound or affected; or (c) violate or conflict with any laws,
regulations, orders, writs, decrees, injunctions or judgments applicable to
Buyer, including the Communications Act.
6.4 Litigation. As of the date hereof, except for administrative
rulemaking or other proceedings of general applicability to the broadcast
industry, there is no civil, criminal or administrative action, suit, demand,
claim, litigation, action, proceeding or investigation of any nature pending
or, to the best of Buyer's knowledge, threatened against or affecting Buyer
that would adversely affect its or, if Buyer assigns its rights hereunder to
a permitted assignee, its
15
permitted assignee's ability to consummate the transactions contemplated in
this Agreement.
6.5 Qualifications as Broadcasting Licensee. Subject to obtaining the
FCC Consent to the FCC Applications, Buyer is legally qualified under the
Communications Act to own the Shares and consummate the transactions
contemplated hereby.
6.6 Financial Capacity. Buyer has the financial capacity to satisfy
all of Buyer's obligations under this Agreement and the documents to be executed
and exchanged at the Closing, and to perform all of Buyer's obligations at the
Closing.
7. Conduct Pending Closing.
7.1 Seller's Covenants. Seller covenants and agrees that prior to
Closing:
7.1.1 Organization, Etc. Consistent with normal business
practices, Seller shall use its reasonable best efforts to prevent any change
in its business organization or financial capacity that would materially
impair its ability to consummate the transactions contemplated hereby. Seller
shall not seek any protection under any Federal or state laws affecting
creditors' rights, including bankruptcy and insolvency laws.
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Seller shall notify Buyer of the occurrence of any event identified in this
Section 7.1.1.
7.1.2 Litigation. Seller shall notify Buyer: (a) of any
litigation pending or, to its knowledge, threatened against or affecting Seller
or which challenges or seeks any damages or other payments in connection with
the transactions contemplated hereby; and (b) any change that would adversely
affect the Seller's ability to consummate the transactions contemplated hereby.
7.1.3 Offers to Purchase. Seller shall not entertain or
conduct discussions or negotiations with any Person with respect to any,
direct or indirect, offer or proposal for the purchase or sale of any portion
of the assets or capital stock of Pacific, its Subsidiaries or KOFY, or with
respect to any financing, merger, acquisition, combination, consolidation or
similar transaction involving Pacific, any of its Subsidiaries or KOFY or any
significant assets or business of any of them, or enter into any agreement or
transaction relating to any of the foregoing.
7.1.4 No Breach of Representations and Warranties. Neither
Seller, nor any of its officers, directors,
17
employees, agents or representatives, shall take any action or pursue any
other course of conduct, or fail to take any action, that would cause any of
the representations and warranties made by Seller in this Agreement (or any
document delivered in connection herewith) to be materially untrue, incorrect
or inaccurate.
7.1.5 No Violations. Seller shall take all reasonable actions to
prevent, and Seller shall not take any action that would cause, a breach of this
Agreement.
7.1.6 Encumbrances; Transfers. Seller shall not sell, assign,
transfer or dispose of any shares of Pacific Common Stock or agree to do any of
the foregoing. Seller shall not create, assume or permit to exist any
Encumbrance affecting any shares of Pacific Common Stock.
7.2 Buyer's Covenants. Buyer covenants and agrees that prior to
Closing:
7.2.1 Organization, Etc. Consistent with normal business
practices, Buyer shall use its reasonable best efforts to prevent any change in
its business organization or financial capacity that would materially impair its
ability to consummate the transactions contemplated hereby. Buyer shall not seek
any protection under any Federal or state laws affecting
18
creditors' rights, including bankruptcy and insolvency laws. Buyer shall
notify Seller of the occurrence of any event identified in this Section 7.2.1.
7.2.2 Litigation. Buyer shall notify Seller: (a) of any
litigation pending or, to its knowledge, threatened against or affecting Buyer
or which challenges or seeks any damages or other payments in connection with
the transactions contemplated hereby; and (b) any change that would adversely
affect the Buyer's ability to consummate the transactions contemplated hereby.
7.2.3 No Breach of Representations and Warranties. Neither the
Buyer, nor any of its officers, directors, employees, agents or representatives,
shall take any action or pursue any other course of conduct, or fail to take any
action, that would cause any of the representations and warranties made by Buyer
in this Agreement (or any document delivered in connection herewith) to be
materially untrue, incorrect or inaccurate.
7.2.4 No Violations. Buyer shall take all reasonable actions to
prevent, and Buyer shall not take any action that would cause, a breach of this
Agreement.
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8. Conditions Precedent to the Obligations of the Parties.
8.1 Conditions Precedent to the Obligation of Buyer. The obligations
of the Buyer under this Agreement are subject, at the Buyer's option, to the
satisfaction on or prior to the Closing Date of each of the following express
conditions precedent:
8.1.1 Accuracy of Representations and Warranties. All
representations and warranties of Seller contained in this Agreement (and in any
document delivered in connection herewith) shall be true and correct in all
respects when made and at and as of the Closing Date as though made at and as of
that time (without regard to any "materiality," "knowledge," or "awareness"
limiting or qualifying language stated therein), except to the extent the
failure to be true and correct, in the aggregate, would not or could not
reasonably be expected to have a Material Adverse Effect, and Buyer shall have
received a certificate, executed by Seller, repeating, as of the Closing Date,
all such representations and warranties.
8.1.2 Compliance with Agreement. Seller shall have performed and
complied in all respects (without regard to any "materially" limiting or
qualifying language stated therein) with all covenants, agreements and
conditions required by this
20
Agreement to be performed or complied with by it prior to or on the Closing
Date.
8.1.3 No Obstructive Proceeding.
(a) No Litigation. No action, suit, investigation, or
proceeding shall have been instituted or be pending against or affecting any
of the parties to this Agreement or any of their Affiliates before any court
or any other Governmental Authority to restrain or prohibit, or to obtain
substantial damages in respect of, this Agreement or the consummation of the
transactions contemplated hereby, which may reasonably be expected to result
in a preliminary or permanent injunction against consummating the
transactions contemplated hereby or, if the transactions contemplated hereby
were consummated, an order to nullify or render ineffective this Agreement or
such transactions, or the recovery against Buyer or Pacific of substantial
damages or otherwise have a material adverse effect on Buyer, the business or
operations of Pacific or KOFY or the broadcasting assets of KOFY;
(b) No Governmental Intervention. None of the parties to
this Agreement or their Affiliates shall have received written notice from any
Governmental Authority of: (i)
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its intention to institute any action or proceeding to restrain or enjoin or
nullify or render ineffective this Agreement or the transactions contemplated
hereby if consummated, or commence any investigation into the consummation of
this Agreement or the transactions contemplated hereby; or (ii) the actual
commencement of such an investigation;
(c) No Order. No order, decree or judgment of any
Governmental Authority shall be subsisting against any of the parties which
would render it unlawful or materially restrain or limit Buyer's ability, as of
the Closing Date, to effect the transactions contemplated hereunder in
accordance with the terms hereof or to operate KOFY as presently being
conducted.
8.1.4 Adverse Change. No loss, destruction, impairment,
confiscation or condemnation of any of the broadcasting assets of or relating
to KOFY shall have occurred by reason of fire, explosion, disaster, flood,
accident, riot, insurrection, war, act of God or other occurrence which
individually or in the aggregate has a Material Adverse Effect. In addition,
since June 30, 1996, there shall have been no material adverse change in the
business or operations, prospects
22
or condition, financial or otherwise, of Pacific, KOFY or the broadcasting
assets of or relating to KOFY.
8.1.5 Authorization. Buyer shall have received certified copies
of all the respective actions taken by Seller authorizing and approving the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereunder.
8.1.6 Opinions of Counsel. Buyer shall have received the written
opinion of Xxxxxx X. Xxx, counsel for Seller, dated the Closing Date,
substantially in the form attached to this Agreement as Exhibit A.
8.1.7 Proceedings. All proceedings to be taken in connection with
the consummation of the transactions contemplated by this Agreement, and all
documents incident thereto, shall be reasonably satisfactory in form and
substance to Buyer and its counsel, and Buyer and its counsel shall have
received copies of such documents as Buyer or its counsel, as the case may be,
may reasonably request in connection with said transactions.
23
8.1.8 HSRA Waiting Period. The applicable waiting period(s) under
HSRA with respect to the transactions contemplated by this Agreement shall have
expired.
8.1.9 FIRPTA Affidavits. At the Closing, Seller shall execute and
deliver to Buyer affidavits pursuant to Section 1445(b)(2) of the Code in the
form set forth in Treas. Reg. ss. 1.1445-2(b)(2)(iii)(A), and Buyer agrees that,
except as otherwise provided in Section 1445(b)(7) of the Code and the
regulations promulgated thereunder, upon the execution and delivery of such
affidavits to Buyer, no deduction shall be made or claimed against the Purchase
Price by reason of the requirements of Sections 897 and 1445 of the Code.
8.2 Conditions to Obligations of Seller. The obligations of Seller at
Closing are subject, at Pacific's option, to the fulfillment prior to or at the
Closing Date of each of the following conditions:
8.2.1 Accuracy of Representations and Warranties. All
representations and warranties of Buyer or its permitted assignee contained in
this Agreement (and any document delivered in connection herewith) shall be true
and correct in all respects at and as of the Closing Date as though made at and
as of
24
that time (without regard to any "materiality," "knowledge," or "awareness"
limiting or qualifying language stated therein), except where the failure to
be true and correct, in the aggregate, would not have a material adverse
effect on the ability of Seller to consummate the transactions contemplated
hereby, and Agent shall have received a certificate, executed on behalf of
Buyer or its permitted assignee by an officer thereof, to that effect.
8.2.2 Compliance with Agreement. Buyer or its permitted assignee
shall have performed and complied in all respects (without regard to any
"materiality" limiting or qualifying language stated therein) with all
covenants, agreements and conditions required by this Agreement to be performed
or complied with by it prior to or on the Closing Date except where the failure
to so perform and comply, in the aggregate, would not have a material adverse
effect on the ability of Seller to consummate the transactions contemplated
hereby.
8.2.3 No Obstructive Proceeding.
(a) No Litigation. No action, suit, investigation, or
proceeding shall be pending against any of the parties to this Agreement or any
of their Affiliates before any court or any other Governmental Authority to
restrain or prohibit,
25
or to obtain substantial damages in respect of, this Agreement or the
consummation of the transactions contemplated hereby, which may reasonably be
expected to result in a preliminary or permanent injunction against
consummating the transactions contemplated hereby or, if the transactions
contemplated hereby were consummated, an order to nullify or render
ineffective this Agreement or such transactions, or the recovery against
Seller of substantial damages or otherwise have a material adverse effect on
Seller.
(b) No Governmental Intervention. None of the parties to
this Agreement or their Affiliates shall have received written notice from any
Governmental Authority of: (i) its intention to institute any action or
proceeding to restrain or enjoin or nullify or render ineffective this Agreement
or the transactions contemplated hereby if consummated, or commence any
investigation into the consummation of this Agreement and the transactions
contemplated hereby; or (ii) the actual commencement of such an investigation.
(c) No Order. No order, decree or judgment of any
Governmental Authority shall be subsisting against any of the parties which
would render it unlawful or materially
26
restrain or limit Seller's ability, as of the Closing Date, to effect the
transactions contemplated hereunder in accordance with the terms hereof.
8.2.4 Proceedings. All proceedings to be taken in connection with
the consummation of the transactions contemplated by this Agreement, and all
documents incident thereto, shall be reasonably satisfactory in form and
substance to Seller and its counsel, and Seller and its counsel shall have
received copies of such documents as Seller or its counsel, as the case may be,
may reasonably request in connection with said transactions.
8.2.5 Opinion of Counsel. Seller shall have received the
written opinion of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel for
Buyer, dated the Closing Date, substantially in the form attached hereto as
Exhibit B.
8.2.6 HSRA Waiting Period. The applicable waiting period(s) under
HSRA with respect to the transactions contemplated by this Agreement shall have
expired.
8.2.7 Authorizations. Agent shall have received certified copies
of all of the actions taken by Buyer authorizing and approving the execution and
delivery of this
27
Agreement and the consummation of the transactions contemplated hereunder.
8.2.8 Payment. Buyer shall pay Seller the Purchase Price.
8.2.9 Officer's Certificate. Buyer shall have delivered to Seller
a certificate signed by its Chairman, President or Vice President and its
Secretary or Assistant Secretary dated the Closing Date, to the effect that the
conditions set forth in Sections 8.2.1, 8.2.2 and 8.2.3 have been satisfied.
9. Instruments of Conveyance and Transfer; Closing Certificates.
9.1 Instruments of Conveyance and Transfer of Shares. At the
Closing, to effect the transfers, conveyances or assignments of the Seller's
Shares from Seller to Buyer or Buyer's assignee as herein provided, Seller
shall deliver to Buyer stock certificates representing the Seller's Shares,
duly endorsed in blank or accompanied by stock powers endorsed in blank, all
of said transfers or assignments of the Seller's Shares being free and clear
of all Encumbrances, all in form and substance
28
reasonably satisfactory to counsel for Buyer and dated the Closing Date.
9.2 Closing Certificate. At the Closing, Buyer shall have received a
copy of the organizational documents under which Seller was formed, and a
certificate executed by an authorized officer of Seller certifying such trust
instrument.
10. Brokers. Seller represents and warrants to Buyer that Seller has not
engaged any broker, finder or consultant in connection with this Agreement or
the transactions contemplated herein or any aspect hereof. Buyer represents and
warrants to Seller that it has not engaged any broker, finder or consultant in
connection with this Agreement or the transactions contemplated hereby other
than H. Xxx XxXxx. The brokerage commission of H. Xxx XxXxx shall be paid by
Buyer at Closing. Subject to the previous sentence, each party agrees to
indemnify and hold the other parties harmless from any and all loss, cost,
liability, damage and expense (including legal and other expenses incident
thereto) in respect of any claim for a broker, finder or consultant's fee or
commission or similar payment by virtue of any alleged agreements, arrangements
or understandings with the indemnifying party or any of its Affiliates.
29
11. Survival; Indemnification.
11.1 Survival. The several representations and warranties of the
parties contained in this Agreement (or in any document delivered in
connection herewith) shall be deemed to have been made on the date of this
Agreement and on the Closing Date, shall survive the Closing Date and shall
remain operative and in full force and effect without limitation.
11.2 Seller's Indemnification. Seller agrees to indemnify, defend and
hold Buyer and its Affiliates harmless from and against any and all loss, cost,
Liability, Tax, damage and expenses (including reasonable legal and other
expenses incident thereto) resulting from breach of Seller's representations,
warranties, covenants or agreements (without reference to any "materiality"
limiting or qualifying contained therein) contained in this Agreement or any
instruments delivered in connection herewith.
11.3 Buyer's Indemnification. From and after the Closing, Buyer agrees
to indemnify, defend and hold Seller harmless from and against any and all loss,
cost, Liability, damage and expense (including reasonable legal and other
expenses incident thereto) resulting from Buyer's breach of any of its
30
representations, warranties, covenants or agreements under this Agreement or
any instrument delivered in connection herewith.
11.4 Indemnification Claim. Upon obtaining knowledge of any claim
or demand which has given rise to, or could reasonably give rise to, a claim
for indemnification hereunder, the party seeking indemnification
("Indemnitee") shall promptly give written notice ("Notice of Claim") of such
claim or demand to the party or parties it is seeking indemnification from
("Indemnitor"). Indemnitee shall furnish to the Indemnitor in reasonable
detail such information as Indemnitee may have with respect to such
indemnification claim (including copies of any summons, complaint or other
pleading which may have been served on it and any written claim, demand,
invoice, billing or other document evidencing or asserting the same). Subject
to the limitations set forth in Section 11.1 hereof, no failure or delay by
Indemnitee in the performance of the foregoing shall reduce or otherwise
affect the obligation of Indemnitor to indemnify and hold Indemnitee
harmless, except to the extent that such failure or delay shall have
materially adversely affected Indemnitor's ability to defend against, settle
or satisfy any Liability,
31
damage, loss, claim or demand for which Indemnitee is entitled to
indemnification hereunder.
11.5 Notice of Claim. If the claim or demand set forth in the
Notice of Claim given by Indemnitee pursuant to Section 11.4 hereof is a
claim or demand asserted by a third party, Indemnitor shall have fifteen (15)
days after the Date of Notice of Claim to notify Indemnitee in writing of its
election to defend such third party claim or demand on behalf of the
Indemnitee. If Indemnitor elects to defend such third party claim or demand,
Indemnitee shall make available to Indemnitor and his agents and
representatives all records and other materials which are reasonably required
in the defense of such third party claim or demand and shall otherwise
cooperate with, and assist Indemnitor in the defense of, such third party
claim or demand, and so long as Indemnitor is defending such third party
claim in good faith, Indemnitee shall not pay, settle or compromise such
third party claim or demand. If Indemnitor elects to defend such third party
claim or demand, Indemnitee shall have the right to participate in the
defense of such third party claim or demand, at Indemnitee's own expense. In
the event, however, that Indemnitee reasonably determines that representation
by counsel to Indemnitor
32
of both Indemnitor and Indemnitee may present such counsel with a conflict of
interest, or where non-monetary relief is being sought against Indemnitee by
a third party, then such Indemnitee may employ separate counsel to represent
or defend it in any such action or proceeding and Indemnitor will pay the
fees and disbursements of such counsel; provided, however, that Indemnitor
shall not be required to pay the fees and disbursements of more than one
separate law firm for all Indemnitees in any jurisdiction in any single
action or proceeding. If Indemnitor does not elect to defend such third party
claim or demand or does not defend such third party claim or demand in good
faith, Indemnitee shall have the right, in addition to any other right or
remedy it may have hereunder, at Indemnitor's expense, to defend such third
party claim or demand; provided, however, that (i) Indemnitee shall not have
any obligation to participate in the defense of, or defend, any such third
party claim or demand; and (ii) Indemnitee's defense of or its participation
in the defense of any such third party claim or demand shall not in any way
diminish or lessen the obligations of Indemnitor under the agreements of
indemnification set forth in this Section 15.
33
11.6 Date of Notice of Claim. The term "Date of Notice of Claim" shall
mean the date the Notice of Claim is effective pursuant to Section 14.5 of this
Agreement.
11.7 Consent of Indemnitee. No claim giving rise to a Notice of Claim
shall be compromised or settled except with the prior written consent of the
Indemnitee, which consent shall not be unreasonably withheld.
12. Termination. This Agreement may be terminated:
12.1 Termination.
12.1.1 Buyer. Subject to Section 14.1, by Buyer if the Closing
shall not have occurred on or prior to the Outside Closing Date (other than as a
result of the failure by Buyer to fully comply with its obligations under this
Agreement);
12.1.2 Seller. Subject to Section 14.1, by Seller if the Closing
shall not have occurred on or prior to the Outside Closing Date (other than as a
result of the failure by Seller, the Sellers under the GL Stock Purchase
Agreement or any other owner of Pacific Common Stock) to fully comply with this
Agreement, the GL Stock Purchase Agreement or any documents executed in
connection therewith;
34
12.1.3 Mutual Consent. By mutual consent of Buyer and Seller,
which consent may be withheld at the absolute discretion of each such party;
12.1.4 By Seller Upon Breach. Subject to Section 14.1, by Seller
if: (a) Buyer is in material breach of this Agreement; and (b) neither Seller,
any Seller under the GL Stock Purchase Agreement nor any other owner of Pacific
Common Stock is then in material breach of this Agreement, the GL Stock Purchase
Agreement or any other document executed in connection therewith).
12.1.5 By Buyer Upon Breach. Subject to Section 14.1, by Buyer:
if (a) Seller is in material breach of this Agreement; and (b) Buyer is not then
in material breach of this Agreement.
12.2 Limitations. Notwithstanding any provision of this Agreement to
the contrary recourse against Buyer or any breach of this Agreement and/or the
GL Stock Purchase Agreement shall be limited to the Deposit, as defined in the
GL Stock Purchase Agreement.
35
13. Confidentiality.
13.1 Seller's Confidentiality. Seller shall at all times from the date
hereof until three (3) years after the Closing Date, maintain confidential and
not use for any purpose other than the operation of KOFY, any information
relating to KOFY (other than information in the public domain not as the result
of a breach of this Agreement), its business and operations except: (a) for
disclosure to authorized representatives of Buyer; (b) as necessary to the
performance of this Agreement; (c) as authorized in writing by the Buyer; or (d)
to the extent that disclosure is required by law or the order of any
Governmental Authority under color of law; provided, that, prior to disclosing
any information pursuant to this clause (d), the disclosing Person shall have
given prior written notice thereof to Buyer and provided Buyer with the
opportunity to contest such disclosure at the Buyer's expense.
13.2 Buyer Confidentiality. Prior to the earlier of: (a) three (3)
years from the date hereof; and (b) the Closing, Buyer shall keep and shall
cause its Affiliates and agents (collectively, "Buyer's Representatives") to
keep all information with respect to Pacific and/or KOFY obtained in
connection with
36
the negotiation and performance of this Agreement (other than information in
the public domain not as the result of a breach of this Agreement), as
confidential and shall not disclose, and shall cause Buyer's Representatives
not to disclose, such information to any third party (other than Buyer's
financing sources or potential financing sources or potential financing
sources or as may be required in connection with any financing) without
Pacific's express prior written consent, except: (w) for disclosure to
authorized representatives of Pacific; (x) as necessary to the performance of
this Agreement; (y) as authorized in writing by Pacific; or (z) to the extent
that disclosure is required by law or the order of any Governmental Authority
under color of law; provided, that, prior to disclosing any information
pursuant to this clause (z), the disclosing Person shall have given prior
written notice thereof to Pacific and provided Pacific with the opportunity
to contest such disclosure at Pacific's expense. If the transactions
contemplated by this Agreement are not consummated, Buyer will return to
Pacific all confidential information obtained from Pacific by Buyer or
Buyer's Representatives. Buyer shall advise any third party to whom
disclosure of confidential information is made hereunder of the
37
confidential nature of such information and shall request that the
confidentiality of such information be preserved.
13.3 Specific Performance. The parties hereby acknowledge that the
damages the other parties would sustain in the event of any violation of the
provisions of this Section 13 are difficult or impossible to ascertain.
Accordingly, the parties hereby agree that each party shall be entitled, in
addition to any other remedy or damages available to it in the event of any
such violation, to injunctive relief to restrain such violation of this
Section 13 by any other party or any Person intended to be subject to the
restriction contained herein which may be acting for or with such other party
or such other Person.
14. Miscellaneous.
14.1 Grace Period.
14.1.1 Default Grace Period. Notwithstanding any other
provision of this Agreement, if a default by any party hereto can be cured or
a condition satisfied within fifteen (15) business days after the time
initially fixed for Closing as set forth herein, then the Closing Date shall
be extended for the period (not to exceed fifteen (15) business days)
required for such party to make such cure or satisfaction; provided that such
38
default does not, and would not reasonably be expected to, have a material
adverse effect on KOFY, Pacific, the broadcasting assets of KOFY or Buyer. If
such cure or satisfaction cannot be, or is not, completed within fifteen (15)
business days after such initial time, then the rights of the parties shall
be governed by the applicable provisions of this Agreement.
14.1.2 Final Order Grace Period. Notwithstanding anything to the
contrary contained herein, in the event that the FCC Consent shall have been
obtained but the FCC Consent shall not have become a Final Order on or prior to
July 1, 1998, then the Outside Closing Date shall be extended by forty-five (45)
days.
14.2 Costs, Expenses, Etc. Except as provided elsewhere herein each
of the parties hereto shall bear all costs and expenses incurred by it in
connection with this Agreement and in the preparation for and consummation of
the transactions provided for herein. The payment of all sales, use, transfer
or similar Taxes, documentation stamps, or other charges imposed by any and
all Governmental Authorities (including any income or gain Taxes and Accrued
Pacific Taxes) with respect to the transfer of title to Pacific's assets,
including the Excluded Pacific Assets,
39
hereunder and the other transactions anticipated hereby shall be borne by
Seller. All recording costs and fees incurred in connection with the clearing
and removing any liens and Encumbrances including costs incurred so as to
permit Seller to convey good and marketable title to the Shares free and
clear of all Encumbrances, shall be the responsibility of Seller.
14.3 Further Assurances. Each party shall, from time to time, upon the
request of another party, execute, acknowledge and deliver to the other party
such other documents or instruments, and take any and all actions as are
reasonably necessary for the implementation and consummation of the transactions
contemplated by this Agreement.
14.4 Notice of Proceedings. Each party will promptly and in any case
within five (5) business days notify the other parties in writing upon
becoming aware of any labor organization drive or any order or decree or any
complaint praying for an order or decree restraining or enjoining the
consummation of this Agreement or the transactions contemplated hereunder, or
upon receiving any notice from any Governmental Authority of its intention to
institute an investigation into, or institute a suit or proceeding to
restrain or enjoin the consummation of this
40
Agreement or such transactions, or to nullify or render ineffective this
Agreement or such transactions if consummated.
14.5 Notices. Any notice, request, demand or consent required or
permitted to be given under this Agreement shall be in writing (including
telexes, telecopies, facsimile transmissions and similar writings) and shall be
effective when transmitted and confirmation of receipt is obtained for telexes,
telecopies, facsimile transmissions and similar writings; when delivered
personally; one day after sent by recognized overnight courier; and five days
after sent by mail, first class, postage prepaid, registered mail, return
receipt requested; in each case to the following address or telephone number, as
applicable:
If to Seller: The Trust for Public Land, Trustee of
the Xxxxx X. Xxxxxxx Charitable
Remainder Unitrust
000 Xxx Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attn: Xxxxxx X. Xxx, General Counsel
If to Buyer: Granite Broadcasting Corporation
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. W. Xxx Xxxxxxxx, Chairman
and Chief Executive Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
41
with copies to: Akin, Gump, Strauss, Xxxxx
& Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or at such other address as either party shall specify by notice to the other.
14.6 Headings and Entire Agreement; Amendment. The section and
subsection headings do not constitute any part of this Agreement and are
inserted herein for convenience of reference only. This Agreement embodies the
entire agreement between the parties with respect to the subject matter hereof.
This Agreement may not be amended, modified or changed orally, and no provision
hereof may be waived, except only in writing signed by the party against whom
enforcement of any amendment, modification, change, waiver, extension or
discharge is sought.
14.7 Waiver. No waiver of a breach of, or default under, any provision
of this Agreement shall be deemed a waiver of such provision or of any
subsequent breach or default of the same or similar nature or of any other
provision or condition of this Agreement.
42
14.8 Binding Effect and Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
successors and permitted assigns. Neither this Agreement nor any obligation
hereunder shall be assignable except with the prior written consent of the
other party which may be withheld for any reason; provided, however, that
Buyer may assign this Agreement, in whole or in part, to any direct or
indirect wholly owned subsidiary of Buyer provided such assignment shall not
relieve Buyer of its obligations under this Agreement and such assignment
application does not cause a material delay in obtaining the FCC Consent.
14.9 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but which taken together shall
constitute one agreement.
14.10 Exhibits and Attachments. The Exhibits and attachments attached
to this Agreement are incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein, except that in the event of any
conflict between any of the provisions of such exhibits and the provisions of
this Agreement, the provisions in this Agreement shall control.
43
14.11 Rights Cumulative. Except as set forth herein, all rights,
powers and remedies herein given to the parties hereto are cumulative and not
alternative, and are in addition to all statutes or rules of law.
14.12 Governing Law. This Agreement, and the rights and obligations
of the parties hereunder, shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed therein. The parties irrevocably consent to the exclusive
jurisdiction of the courts of California to resolve any dispute related to
this Agreement, and also to the convenience of the District Court for the
Northern District of California, to resolve any such dispute.
14.13 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance, is held invalid, such
invalidity shall not affect any other provision which can be given effect
without the invalid provision or application, and to this end the provisions
hereof shall be severable.
14.14 Third Party Rights. Nothing in this Agreement (including the
Exhibits and other attachments hereto, or any ancillary agreement, instrument or
document contemplated hereby or
44
relating hereto) shall be deemed to create any right with respect to any
Person or property not a party to this Agreement.
14.15 Press Releases. Except as otherwise required by law, Buyer and
Seller shall: (a) prior to its issuance of any press release relating to the
transactions contemplated by this Agreement, submit to and consult with the
other party with respect to such press release; and (b) use its best efforts to
characterize the other party, in any other public statements made by the party
making such statement about the other party, on substantially the same basis as
in any press release made by the party making such statement. No other party or
Affiliate of any party shall be permitted to issue a press release relating to
the transactions contemplated hereby.
14.16 Specific Performance. Seller hereby agrees that Buyer shall
be entitled, in addition to any other remedies or damages available to Buyer
in the event of any breach of this Agreement by Seller, to specific
performance of the obligations of Seller under this Agreement.
14.17 Concurrent Closing. Notwithstanding anything to the contrary
contained herein, Buyer's obligation to close the transactions contemplated by
this Agreement, is conditioned on the
45
simultaneous closing of the transactions contemplated by the GL Stock
Purchase Agreement.
46
IN WITNESS WHEREOF, each party has caused this Agreement to be duly
executed and delivered in its name and on its behalf, all as of the date and
year first above written.
GRANITE BROADCASTING CORPORATION
By: /s/ W. Xxx Xxxxxxxx
--------------------------------
Name: W. Xxx Xxxxxxxx, Chairman
and Chief Executive Officer
THE XXXXX X. XXXXXXX CHARITABLE
REMAINDER UNITRUST
By: THE TRUST FOR PUBLIC LAND,
TRUSTEE
By: /s/ Xxxxxx X. Xxx
------------------------------
Name: Xxxxxx X. Xxx
Title: Senior Vice President
47
