ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of November 17, 1999, by and between The Chronicle Publishing Company, a
Nevada corporation (the "Seller"), and Benedek Broadcasting Corporation, a
Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller owns certain assets which it uses to conduct the
operations of television stations WOWT(TV), Omaha, Nebraska, KAKE-TV, Wichita,
Kansas, KUPK-TV, Garden City, Kansas, and KLBY(TV), Colby, Kansas (the
"Business").
WHEREAS, the Purchaser desires to purchase from the Seller, and the
Seller desires to sell to the Purchaser, substantially all of the assets of the
Seller owned, used or held for use by the Seller primarily to conduct the
operations of the Business, and in connection therewith, the Purchaser has
agreed to assume certain liabilities of the Seller relating to the Business, all
upon the terms and subject to the conditions set forth herein (such transaction
sometimes being referred to herein as the "Asset Purchase").
WHEREAS, the prior consent of the United States Federal Communications
Commission is required to permit the consummation of the Asset Purchase.
WHEREAS, the Seller and the Purchaser desire to make certain
representations, warranties, covenants and agreements in connection with the
Asset Purchase, all as more fully set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, promises and agreements hereinafter set forth, the mutual benefits to
be gained by the performance of such covenants, promises and agreements, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged and accepted, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. For all purposes of and under this Agreement, the
following terms shall have the respective meanings set forth below:
(a) "Action" means any claim, action, suit or proceeding, arbitral
action, governmental inquiry, criminal prosecution or other investigation.
(b) "Affiliate" means any "affiliate" as defined in Rule 144(a)(1)
promulgated under the Securities Act of 1933, as amended, any successor statute
thereto, and the rules and regulations promulgated thereunder.
(c) "Business Day" means any weekday (Monday through Friday) on which
commercial banks in San Francisco, California are open for business.
(d) "Communications Act" means the Communications Act of 1934, as
amended, any successor statute thereto, and all rules, regulations and written
policies of the FCC promulgated thereunder.
(e) "Confidentiality Agreement" means the letter agreement between the
Seller and the Purchaser, dated as of July 21, 1999.
(f) "Contract" means any currently enforceable contract, agreement,
indenture, note, bond, instrument, lease, conditional sales contract, mortgage,
license, franchise agreement, concession agreement, insurance policy, security
interest, guaranty, binding commitment or other agreement or arrangement,
whether written or oral.
(g) "Encumbrance" means any security interest, pledge, mortgage, lien,
charge, adverse claim of ownership or use, restriction on transfer (such as a
right of first refusal or other similar right), defect of title, or other
encumbrance of any kind or character.
(h) "Environmental Law" means any Law pertaining to land use, air,
soil, surface water, groundwater (including the protection, cleanup, removal,
remediation or damage thereof), public or employee health or safety or any other
environmental matter, including, without limitation, the following laws as in
effect on the Closing Date: (i) Clean Air Act (42 U.S.C. ss.7401, et seq.); (ii)
Clean Water Act (33 U.S.C. ss.1251, et seq.); (iii) Resource Conservation and
Recovery Act (42 U.S.C. ss.6901, et seq.); (iv) Comprehensive Environmental
Resource Compensation and Liability Act (42 U.S.C. ss.9601, et seq.); (v) Safe
Drinking Water Act (42 U.S.C. ss.300f, et seq.); (vi) Toxic Substances Control
Act (15 U.S.C. ss.2601, et seq.); (vii) Rivers and Harbors Act (33 U.S.C.
ss.401, et seq.); (viii) Endangered Species Act (16 U.S.C. ss.1531, et seq.);
(ix) Occupational Safety and Health Act (29 U.S.C. ss.651, et seq.); and (x) any
other Laws relating to Hazardous Materials or Hazardous Materials Activities.
(i) "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, any successor statute thereto, and the rules and regulations
promulgated thereunder.
(j) "FCC" means the United States Federal Communications Commission,
and any successor agency thereto.
(k) "GAAP" means generally accepted accounting principles in the United
States.
(l) "Governmental Authority" means any government, any governmental
entity, department, commission, board, agency or instrumentality, and any court,
tribunal, or judicial body, in each case whether federal, state, county,
provincial, local or foreign.
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(m) "Governmental Order" means any statute, rule, regulation, order,
judgment, injunction, decree, stipulation or determination issued, promulgated
or entered by or with any Governmental Authority of competent jurisdiction.
(n) "Hazardous Material" means
(i) any "hazardous substance," as defined by the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended
("CERCLA");
(ii) any "hazardous waste," as defined by the Resource Conversation
and Recovery Act, as amended;
(iii) any petroleum product; or
(iv) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other Environmental
Law.
(o) "Hazardous Materials Activity" means the handling, transportation,
transfer, recycling, storage, use, treatment, manufacture, investigation,
removal, remediation, release, exposure of others to, sale or other distribution
of any Hazardous Material or any product containing a Hazardous Material.
(p) "HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, any successor statute thereto, and the rules and regulations
promulgated thereunder.
(q) "Income Tax" means any federal, state, county, provincial, local or
foreign income, franchise, business profits or other similar Tax, any estimated
Tax related thereto, any interest and penalties (civil or criminal) thereon or
additions thereto, and any expenses incurred in connection with the
determination, settlement or litigation of any Liabilities related to any such
Tax.
(r) "Intellectual Property" means any United States and foreign
patents, patent applications, patent disclosures and improvements thereto, (ii)
United States and foreign trademarks, service marks, trade dress, logos, trade
names and corporate names, the goodwill associated therewith, and the
registrations and applications for registration thereof, and (iii) United States
and foreign copyrights, and the registrations and applications for registration
thereof.
(s) "Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, any successor statute thereto, and the rules and regulations
promulgated thereunder.
(t) "IRS" means the United States Internal Revenue Service, and any
successor agency thereto.
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(u) "Knowledge of the Seller," "known to the Seller" and phrases of
similar import mean, with respect to any matter in question relating to the
Business or the Seller, if Xxxx X. Xxxx, Xxxxxx X. Xxxxx, W. Xxxxxx Xxxxxx,
Xxxxx South, Xxxxx Xxxxxx, Xxxxx Xxxxxx or Xxxx Xxxxxx have actual knowledge of
such matter without obligation of inquiry.
(v) "Law" means any federal, state, county, provincial, local or
foreign statute, law, ordinance, regulation, rule, code or rule of common law.
(w) "Liability" means any direct or indirect debt, obligation or
liability of any kind or nature, whether accrued or fixed, absolute or
contingent, determined or determinable, matured or unmatured, and whether due or
to become due, asserted or unasserted, or known or unknown.
(x) "License" means any franchise, approval, permit, order,
authorization, consent, license, registration or filing, certificate, variance
and any other similar right obtained from or filed with any Governmental
Authority.
(y) "Material Adverse Effect" means any change or effect that is
materially adverse to the assets, properties, operations, business, financial
condition or results of operations of (i) television station WOWT-TV, Omaha,
Nebraska, or (ii) television stations KAKE-TV, Wichita, Kansas, KUPK-TV, Garden
City, Kansas and KLBY-TV, Colby, Kansas taken as a whole, except in either case
for any such changes or effects resulting directly or indirectly from (i) the
transactions contemplated by this Agreement, (ii) the announcement or other
disclosure of the transactions contemplated by this Agreement, (ii) regulatory
changes, (iii) changes in conditions generally applicable to the television
broadcasting industry, or in general economic conditions in the geographic
regions in which the Business is conducted.
(z) "NGCL" means the General Corporation Law of the State of Nevada,
and any successor statute thereto.
(aa) "Permitted Encumbrances" means (i) Encumbrances for inchoate
mechanics' and materialmen's liens for construction in progress and workmen's,
repairmen's, warehousemen's and carriers' liens arising in the ordinary course
of the business, (ii) Encumbrances for Taxes and other Liabilities not yet due
and payable, and for Taxes and other Liabilities being contested in good faith,
provided an appropriate reserve for such Liabilities has been established in
accordance with GAAP, (iii) Encumbrances in favor of the Purchaser arising out
of, under or in connection with this Agreement, (iv) Encumbrances reflected on
the Latest Balance Sheet (other than any Encumbrances securing the Seller's
obligation for borrowed money), (v) Encumbrances and imperfections of title the
existence of which does not materially detract from the value of, interfere
with, or otherwise affect the use and enjoyment of the property subject thereto
or affected thereby, for the same use and operations as currently conducted, and
(vi) solely with respect to Owned Real Property, provided that the following are
not violated by existing improvements in any material respect and do not
prohibit or
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materially restrict the continued use and operation of such Owned Real Property
for the same uses and operations as currently conducted, or grant any third
party any option or right to acquire or lease a material portion thereof, (A)
easements, rights of way and other similar restrictions which would be shown by
a current title report, (B) conditions that may be shown by a current survey,
title report or physical inspection, and (C) zoning, building and other similar
restrictions imposed by applicable Law.
(bb) "Person" means any individual, general or limited partnership,
firm, corporation, limited liability company, association, trust, unincorporated
organization or other entity.
(cc) "Program License Agreements" means any Business Contract granting
rights for the broadcast of programming on any of the Stations.
(dd) "Proprietary Rights" means any (i) Intellectual Property, (ii)
trade secrets and confidential business information (including, without
limitation, ideas, formulas, compositions, inventions (whether patentable or
unpatentable and whether or not reduced to practice), know-how, research and
development information, software, drawings, specifications, designs, plans,
proposals, technical data, copyrightable works, financial, marketing and
business data, pricing and cost information, business and marketing plans and
customer and supplier lists and information), (iii) other proprietary rights,
(iv) copies and tangible embodiments thereof (in whatever form or medium), (v)
the domain names and websites xxx.xxxx.xxx and xxx.xxxx.xxx, together with their
content, style and layout, including, without limitation, any related rights,
data, data bases, programming, scripting, coding, software, agreements, and
rights to links (both to and from the sites), and (vi) licenses granting any
rights with respect to any of the foregoing.
(ee) "Purchaser Permitted Encumbrances" means (i) Encumbrances for
inchoate mechanics' and materialmen's liens for construction in progress and
workmen's, repairmen's, warehousemen's and carriers' liens arising in the
ordinary course of the business, (ii) Encumbrances for Taxes and other
liabilities not yet due and payable, and for Taxes and other Liabilities being
contested in good faith, (iii) Encumbrances arising out of, under or in
connection with this Agreement, (iv) Encumbrances and imperfections of title the
existence of which does not materially detract from the value of, interfere
with, or otherwise affect the use and enjoyment of the property subject thereto
or affected thereby, consistent with past practice.
(ff) "Seller Documents" means, collectively, the (i) the Grant Deeds,
(ii) the Xxxx of Sale, (iii) the Assignment and Assumption, and (iv) the
Assignment of Proprietary Rights.
(gg) "Stations" means television stations WOWT(TV), Channel 6, Omaha,
Nebraska, KAKE-TV, Channel 10, Wichita, Kansas, KUPK-TV, Channel 13, Garden
City, Kansas, and KLBY(TV), Channel 4, Colby, Kansas.
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(hh) "Subsidiary" means (unless otherwise indicated), with respect to a
Person, any other Person in which such Person has a direct or indirect equity or
other ownership interest in excess of fifty percent (50%).
(ii) "Tax" means any federal, state, county, provincial, local or
foreign income, gross receipts, sales, use, ad valorem, employment, severance,
transfer, gains, profits, excise, franchise, property, capital stock, premium,
minimum and alternative minimum or other taxes, fees, levies, duties,
assessments or charges of any kind or nature whatsoever imposed by any
Governmental Authority (whether payable directly or by withholding), together
with any interest, penalties (civil or criminal), additions to, or additional
amounts imposed by, any Governmental Authority with respect thereto, and any
expenses incurred in connection with the determination, settlement or litigation
of any Liability therefor.
(jj) "Tax Return" means a report, return or other information required
to be supplied to a Governmental Authority with respect to any Tax.
(kk) "Trade Agreements" means any Business Contract for the sale of
advertising time on any of the Stations in exchange for goods or services other
than Program License Agreements.
1.2 Certain Additional Definitions. For all purposes of and under this
Agreement, the following terms shall have the respective meanings ascribed
thereto in the respective sections of this Agreement set forth opposite each
such term below:
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Term Section
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Agreement Preamble
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Asset Purchase Recitals
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Asset Transfer Amount 6.9(g)
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Asset Transfer Date 6.9(g)
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Assignment and Assumption 3.2(a)(iii)
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Assignment of Proprietary Rights 3.2(a)(iv)
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Assignment of Station Licenses 3.2(a)(v)
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Assumed Liabilities 2.2(b)
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Assumed Plans 6.9(c)
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Benefit Plan(s) 4.10(a)
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Xxxx of Sale 3.2(a)(ii)
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Business Recitals
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Business Contract(s) 2.1(b)(ii)
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Business Employee(s) 4.9
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Business Insurance Policies 4.18(a)
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Business License(s) 2.1(b)(iii)
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Cash Payment 2.3(a)
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Closing 3.1
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Term Section
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Closing Date 3.1
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Consultant 6.15(a)
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Deeds 3.2(a)(i)
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Environmental Auditor 6.15(d)
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Environmental Work 6.15(b)
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Escrow Agent 6.14
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Escrow Agreement 6.14
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Escrow Deposit 6.14
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Excluded Assets 2.1(c)
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Excluded Liabilities 2.2(c)
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FCC Applications 6.12
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Final Prorations Schedule 2.3(b)(iii)
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Financial Statements 4.12(a)
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Former Business Employees 4.10(a)
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XXXX Target Closing Date 3.1
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Latest Balance Sheet 4.12(a)
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Latest Balance Sheet Date 4.12(a)
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Leased Assets 4.5(a)
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Leased Real Property 4.5(a)
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Lender 6.17
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Material Business Contract(s) 4.7(a)
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Material Business License(s) 4.8
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New Cafeteria Plan 6.9(h)
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Notice of Disagreement 2.3(b)(iii)
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Owned Real Property 4.5(a)
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PBGC 4.10(e)
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Purchase Price 2.3(a)
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Purchased Assets 2.1(b)
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Purchaser Preamble
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Purchaser 401(k) Plan 6.9(d)
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Seller Preamble
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Seller Articles of Incorporation 4.1
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Seller Bylaws 4.1
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Seller DB Plan 6.9(f)
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Seller 401(k) Plan 6.9(d)
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Seller's Proration Amount 2.3(b)(iii)
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Short Term Agreement 4.7(a)
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Station Licenses 2.1(b)(vii)
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Termination Date 8.1(b)
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Transferred Employees 6.9(a)
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Transferred Non-Union Employees 6.9(a)
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Transferred Union Employees 6.9(a)
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ARTICLE II.
PURCHASE AND SALE OF ASSETS
2.1 Purchase and Sale of Purchased Assets.
(a) Purchase and Sale. Upon the terms and subject to the conditions set
forth herein, at the Closing, the Purchaser shall purchase from the Seller, and
the Seller shall irrevocably sell, convey, transfer, assign and deliver to the
Purchaser, free and clear of all Encumbrances other than Permitted Encumbrances
and those Encumbrances set forth in Schedule 4.5(b) hereto, all right, title and
interest in and to the Purchased Assets (as defined below).
(b) Definition of Purchased Assets. For all purposes of and under this
Agreement, the term "Purchased Assets" shall mean, refer to and include all of
the Seller's right, title and interest in and to all tangible and intangible
assets, properties and rights which are owned, used or held for use by the
Seller primarily to conduct the operations of the Business, including, without
limitation, all right, title and interest of the Seller in and to all real
property (including, without limitation, the Owned Real Property set forth in
Schedule 4.5(a) hereto), and any leaseholds and sub-leaseholds therein
(including, without limitation, leases for the Leased Real Property set forth in
Schedule 4.5(a) hereto), buildings, towers, antennas, transmitters, structures,
improvements, fixtures, furnishings and other fittings thereon and additions,
replacements and alterations thereto, and easements, rights-of-way, and other
appurtenances thereto, all tangible personal property (whether or not located on
the Seller's premises and including, without limitation, the tangible personal
property set forth in Schedule 4.5(a) hereto) including all machinery, equipment
and tools, furniture and furnishings, computers and computer supplies, office
materials and supplies, automobiles, trucks and other vehicles, cameras, spare
parts, inventories of any kind or nature, office materials and supplies,
manufactured and purchased goods, all prepaid assets and expenses, and all
books, records (other than records relating to Income Taxes), employment records
(except to the extent prohibited by law), production records, filings with the
FCC, ledgers, files, documents, correspondence, customer, supplier, advertiser,
and other lists, invoices and sales data, creative, advertising and other
promotional materials, studies, reports, and other printed or written materials
or data, and specifically including, without limitation, the following:
(i) Proprietary Rights (including, without limitation, the
Intellectual Property set forth in Schedule 4.6(a) hereto), goodwill associated
therewith, licenses and sublicenses granted and obtained with respect thereto,
rights thereunder, remedies against infringements thereof, and rights to
protection of interests therein under the applicable Laws of all jurisdictions;
(ii) Contracts to which the Seller is a party or by which its
assets or properties are bound (each, a "Business Contract" and, collectively,
"Business Contracts") (including, without limitation, the Material Business
Contracts set forth in
8
Schedule 4.7(a) hereto), to the extent transferable by the Seller to the
Purchaser, and all rights thereunder;
(iii) Licenses owned or possessed by the Seller used or necessary
for the lawful conduct of the Business (each, a "Business License" and,
collectively, "Business Licenses") (including, without limitation, the Material
Business Licenses), to the extent transferable by the Seller to the Purchaser,
and all rights thereunder, except for the Station Licenses, which shall be
conveyed pursuant to Subsection 2.1(b)(vii);
(iv) rights in or to all Assumed Plans, and any and all assets
associated with or allocated to Business Employees thereunder;
(v) any and all refunds of Taxes relating primarily to the Business
other than refunds of Income Taxes;
(vi) Actions, deposits, prepayments, refunds, causes of action,
choses in action, rights of recovery, rights of set off, and rights of
recoupment of any kind or nature (including, without limitation, any such item
relating to Taxes other than Income Taxes) relating to the Purchased Assets or
the Assumed Liabilities;
(vii) All licenses, permits, permissions and other authorizations
issued by the FCC and other governmental agencies for the operation of the
Stations, including, but not limited to those listed on Schedule 4.21 hereto,
and the Seller's rights in and to the call letters WOWT(TV), KAKE-TV, KUPK-TV
and KLBY(TV) (the "Station Licenses");
(viii) All rights of the Seller relating to or arising out of or
under express or implied warranties from suppliers with respect to the assets
and properties being transferred to the Purchaser;
(ix) All prepaid expenses, advances and deposits which relate to
the business and operation of the Stations, including prepaid film and
programming expenses (it being understood that the Purchase Price includes
payment for the contracts and commitments of the Seller relating to film and
programming and that no further payment to the Seller or proration shall be due
in respect thereof) and all barter receivables arising in connection with Trade
Agreements now existing or hereafter entered into in the ordinary course of
business to the extent permitted by Section 6.1 hereof; and
(x) All rights of the Seller under Business Insurance Policies, to
the extent they relate to claims against the Business arising prior to the
Closing Date and such rights are transferable by the Seller to the Purchaser,
subject to Section 2.1(c)(x).
(c) Definition of Excluded Assets. Notwithstanding anything to the
contrary set forth in this Section 2.1 or elsewhere in this Agreement, the term
"Purchased Assets" shall not mean, refer to or include the following
(collectively, the "Excluded Assets"):
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(i) the corporate charter and bylaws, qualifications to transact
business as a foreign corporation, arrangements with registered agents relating
to foreign qualifications, taxpayer and other identification numbers, seals,
minute books, stock transfer books, blank stock certificates, and other
documents relating to the organization, maintenance, and existence of the Seller
as a corporation;
(ii) all assets, whether real or personal, tangible or intangible,
which are owned, used or held for use by the Seller primarily to conduct any
business operation or activity other than the Business;
(iii) all real and personal property (including, without
limitation, all equipment, furniture, fixtures, files, computers, computer
software and computer software licenses, supplies and other personal property)
used by the corporate and accounting departments of the Seller in San Francisco,
California;
(iv) rights in or to all Benefit Plans other than Assumed Plans,
and all assets associated with or allocated to employees of the Seller other
than Business Employees thereunder;
(v) cash and cash equivalents;
(vi) any and all refunds of Income Taxes;
(vii) Actions, deposits, prepayments, refunds, causes of action,
choses in action, rights of recovery, rights of set off, and rights of
recoupment of any kind or nature (including any such item relating to Income
Taxes) relating to the Excluded Assets or the Excluded Liabilities ;
(viii) refunds paid or payable in connection with the cancellation
or discontinuance of any insurance policies applicable to the Business
(including, without limitation, the Business Insurance Policies set forth in
Schedule 4.18 hereto) following the Closing;
(ix) all rights of the Seller under this Agreement, any agreement,
certificate, instrument or other document executed and delivered by the Seller
in connection with the transactions contemplated hereby, or any side agreement
between the Seller and the Purchaser entered into on or after the date of this
Agreement; and
(x) all rights of the Seller for reimbursement under Business
Insurance Policies to the extent (A) they relate to claims against the Business
arising prior to the Closing Date, and (B) the Seller has incurred costs or paid
monies in connection with such claims.
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2.2 Assumption of Liabilities.
(a) Assumption. Upon the terms and subject to the conditions set forth
herein, at the Closing the Purchaser shall assume from the Seller (and therefore
pay, perform and discharge), and the Seller shall irrevocably convey, transfer
and assign to the Purchaser, all of the Assumed Liabilities (as defined below).
(b) Definition of Assumed Liabilities. For all purposes of and under
this Agreement, the term "Assumed Liabilities" shall mean, refer to and include
all Liabilities of the Seller arising out of or relating to the operation of the
Business, including, without limitation, the Liabilities set forth below to the
extent that such Liabilities arose out of or relate primarily to the operation
of the Business or the Purchased Assets, but specifically excluding the Excluded
Liabilities (as defined below):
(i) Liabilities of the Seller under all Business Contracts
(including, without limitation, the Material Business Contracts set forth in
Schedule 4.7(a) hereto) to the extent such Business Contracts are transferred by
the Seller to the Purchaser;
(ii) Liabilities of the Seller under all Business Licenses
(including, without limitation, the Material Business Licenses), to the extent
such Business Licenses are transferred by the Seller to the Purchaser;
(iii) Liabilities of the Seller under all Assumed Plans;
(iv) Liabilities reflected in the Latest Balance Sheet to the
extent not discharged on or prior to the Closing Date;
(v) Liabilities for Taxes, other than Income Taxes of the Seller
arising at any time;
(vi) Liabilities of the Seller arising out of or in connection with
any Action (including, without limitation, any Action set forth in Schedule 4.15
hereto);
(vii) Liabilities of the Seller for any obligation to make
severance payments to any Business Employee as set forth in any employment
agreement, collective bargaining agreement or other Contract between the Seller
and any such Business Employee, other than any such obligation to make payments,
payable upon the sale of the Stations by the Seller, to (A) Xxxxx Xxxxxx,
pursuant to that letter, dated July 8, 1999, from Xxxx X. Xxxx on behalf of the
Seller to Xxxxx Xxxxxx, (B) Xxxxx Xxxxxx, pursuant to that Letter Agreement,
dated April 17, 1998, from Xxxxx Xxxxxx on behalf of the Seller to Xxxxx Xxxxxx
and (C) any other Business Employee if such payment is due solely by reason of
the sale of the Stations by the Seller;
(viii) Liabilities of the Seller for all accrued vacation and sick
time of all Business Employees;
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(ix) Liabilities of the Seller arising from discharges or releases
of Hazardous Materials and other Hazardous Material Activities, violations of
Environmental Laws or similar matters to the extent such Liabilities are related
to the operations of the Business; and
(x) Liabilities under all employment agreements, other Contracts
between the Seller and any Business Employee, and collective bargaining
agreements relating to the Business, including, without limitation, all employee
benefit plans or other arrangements required under any collective bargaining
agreement or otherwise negotiated with the union that is a party thereto.
(c) Definition of Excluded Liabilities. Except for the Assumed
Liabilities, the Purchaser shall not assume any Liabilities of the Seller
(collectively, the "Excluded Liabilities"). Notwithstanding anything to the
contrary set forth in this Section 2.2 or elsewhere in this Agreement, the term
"Assumed Liabilities" shall not mean, refer to or include (and, therefore, the
"Excluded Liabilities" shall include) the following:
(i) Liabilities of the Seller under any Benefit Plan which is not
an Assumed Plan;
(ii) Liabilities for Income Taxes of the Seller;
(iii) Liabilities of the Seller in respect of transaction costs
payable by the Seller pursuant to Section 6.8 hereof;
(iv) Liabilities of the Seller for borrowed money; and
(v) Liabilities of the Seller to any shareholder of the Seller or
any of its Affiliates, except as set forth in Schedule 4.19.
2.3 Consideration for Purchased Assets.
(a) Consideration. Subject to Section 2.3(b) hereof, the purchase price
(the "Purchase Price") for the Purchased Assets shall be (i) One Hundred
Forty-One Million Dollars ($141,000,000) in cash (the "Cash Payment"), and (ii)
the assumption by the Purchaser of the Assumed Liabilities pursuant to Section
2.2 hereof.
(b) Prorations.
(i) Except as otherwise provided herein, all income and expenses
arising from the conduct of the Business shall be prorated in accordance with
GAAP for the account of the Seller through 11:59 p.m. on the Closing Date and
thereafter for the account of the Purchaser, it being understood that (A) any
amounts that are or should have been accrued under GAAP as of the Closing Date
with respect to the Assumed Liabilities are to be charged to the Seller to the
extent the Seller has received the benefit therefrom prior to the Closing, (B)
pre-paid fees and expenses, to the extent the Purchaser
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will receive a benefit therefrom after the Closing Date, are to be charged to
the Purchaser, and (C) notwithstanding the foregoing clauses (A) and (B), the
Purchase Price includes payment for Program License Agreements and for barter
receivables arising in connection with Trade Agreements and that no further
payment to Seller or proration shall be due in respect thereof and any cash
payment due under Program License Agreements on or prior to the Closing Date
shall be charged to the Seller. Such prorations shall include, without
limitation, all unbilled advertising income, all network compensation, all ad
valorem, real estate and other property taxes (but excluding taxes arising by
reason of the transfer of the Purchased Assets as contemplated hereby which
shall be paid in accordance with Section 6.8 hereof), business and license fees,
annual FCC regulatory fees, lease payments, rents (excluding amounts paid as
capital expenditures in connection with real property, whether leased or owned),
wages and salaries of employees (including accruals for bonuses, commissions and
vacation pay), workers' compensation premiums, utility expenses, water and sewer
use charges, time sales agreements, and all other income and expenses
attributable to the ownership and conduct of the Business. The Seller shall
provide to the Purchaser a list of all known proratable items and payables for
the Business at least five (5) Business Days prior to the Closing.
(ii) At the Closing, the Cash Payment shall be adjusted by the
amount of the adjustments contemplated in Subsection 2.3(b)(i) to the extent
practicable. As to those prorations and adjustments not reasonably capable of
being ascertained on the Closing Date, adjustments and prorations shall be made
in accordance with the procedures set forth in Subsection 2.3(b)(iii).
(iii) As promptly as practicable, but in any event within sixty
(60) calendar days after the Closing, the Purchaser shall cause to be prepared
and delivered to the Seller a schedule of its proposed prorations (which shall
set forth in reasonable detail the basis for those determinations) (the "Final
Prorations Schedule"). The Final Prorations Schedule shall be conclusive and
binding on the Seller and the Seller shall pay to the Purchaser, or the
Purchaser shall pay to the Seller, as the case may be, any amount due as a
result of such adjustment within thirty-five (35) calendar days of the Seller's
receipt of the Final Prorations Schedule, unless the Seller provides the
Purchaser with written notice of objection (the "Notice of Disagreement") within
thirty (30) calendar days after the Seller's receipt of the Final Proration
Schedule, which notice shall state the prorations of expenses proposed by the
Seller (the "Seller's Proration Amount"). The Purchaser shall have fifteen (15)
calendar days from receipt of a Notice of Disagreement to accept or reject
Seller's Proration Amount. Payment by the Purchaser to the Seller, or by the
Seller to the Purchaser, as the case may be, pursuant to this Subsection
2.3(b)(iii) shall be due within fifteen (15) calendar days after the last to
occur of (A) the Purchaser's acceptance of the Seller's Proration Amount, or (B)
the Purchaser's failure to reject the Seller's Proration Amount within fifteen
(15) calendar days of the Purchaser's receipt of a Notice of Disagreement.
(iv) In the event of any disputes between the parties as to the
prorations and adjustments described in this Section, the amounts not in dispute
shall nonetheless be
13
paid at the time provided in this Section and such disputes shall be determined
by an independent certified public accountant of national recognition that does
not then have a relationship with the Seller or the Purchaser, or any of their
respective Affiliates, mutually acceptable to the Seller and the Purchaser, with
the fees and expenses of such accountant being shared equally by the Seller and
the Purchaser. Any payment required by the Seller to the Purchaser or the
Purchaser to the Seller, as the case may be, under this Section shall be paid by
wire transfer of immediately available funds to the account of the payee with
the financial institution in the United States as designated by such party
within five (5) Business Days after the date on which the determination of the
independent certified public accountant is delivered to the Seller and the
Purchaser pursuant to this Subsection 2.3(b)(iv).
(v) If either the Seller or the Purchaser fails to pay when due any
amount under Section 2.3(b), interest on such amount will accrue from the date
payment was due to the date such payment is made at a rate per annum equal the
lesser of (A) the generally prevailing prime interest rates (as reported by the
Wall Street Journal) plus five percentage points, or (B) the maximum amount
permitted by applicable Law, and such interest shall be payable upon demand.
Notwithstanding the provisions of Subsections 2.3(b) (ii), (iii), and (iv) of
this Agreement, if the amount of any taxes to be prorated pursuant to this
Section 2.3 is not known by sixty (60) calendar days after the Closing, then the
amount will be estimated as of such date, and once the amount of such taxes is
known, the Seller shall pay to the Purchaser, or the Purchaser shall pay to the
Seller, as the case may be, the net amount due as a result of the actual
apportionment of such taxes.
(c) Allocation of Purchase Price. The parties agree that Xxxxx Xxxx
Appraisal shall determine the allocation of the sum of the Cash Payment and the
Assumed Liabilities among the Purchased Assets and shall deliver such allocation
to the Seller and the Purchaser on or before February 29, 2000. The Seller shall
have the right, in its sole and absolute discretion, to accept or reject the
allocation of Xxxxx Xxxx Appraisal; provided that, if such rejection by the
Seller is not delivered to the Purchaser on or before fifteen (15) days after
Seller's receipt of the allocation, the Seller shall be deemed to have accepted
such allocation and it shall be conclusive and binding on the parties for
purposes of this Section 2.3(c). In the event that the Seller rejects the
allocation by Xxxxx Xxxx Appraisal, then the parties agree to be bound by an
appraisal of the Purchased Assets by a mutually acceptable independent
nationally recognized firm of valuation experts. The cost of appraisals pursuant
to this Section 2.3(c) shall be borne equally the Purchaser and the Seller.
Notwithstanding anything to the contrary herein, the allocation will be
consistent with Section 1060 of the Internal Revenue Code. The Purchaser and the
Seller (i) shall execute and file all Tax Returns and prepare all financial
statements, returns and other instruments in a manner consistent with the
allocation determined pursuant to this Section 2.3(c), (ii) shall not take any
position before any Governmental Authority or in any judicial proceeding that is
inconsistent with such allocation, and (iii) shall cooperate with each other in
a timely filing, consistent with such allocation, of Form 8594 with the IRS.
14
2.4 Further Assurances. At and after the Closing, and without further
consideration therefor, (i) the Seller shall execute and deliver to the
Purchaser such further instruments and certificates of conveyance and transfer
as the Purchaser may reasonably request in order to more effectively convey and
transfer the Purchased Assets to the Purchaser and to put the Purchaser in
operational control of the Business, or for aiding, assisting, collecting and
reducing to possession any of the Purchased Assets and exercising rights with
respect thereto, and (ii) the Purchaser shall execute and deliver to the Seller
such further instruments and certificates of assumption, novation and release as
the Seller may reasonably request in order to effectively make the Purchaser
responsible for all Assumed Liabilities and release the Seller therefrom to the
fullest extent permitted under applicable Law.
2.5 Nontransferable Business Contracts and Business Licenses. To the extent
that transfer or assignment hereunder by the Seller to the Purchaser of any
Business Contract or Business License is not permitted or is not permitted
without the consent of another Person, this Agreement shall not be deemed to
constitute an undertaking to assign the same if such consent is not given or if
such an undertaking otherwise would constitute a breach thereof or cause a loss
of benefits thereunder. The Seller shall use all commercially reasonable efforts
to obtain any and all such third party consents under all Material Business
Contracts and Material Business Licenses; provided, however, that the Seller
shall not be required to pay or incur any cost or expense to obtain any third
party consent that the Seller is not otherwise required to pay or incur in
accordance with the terms of the applicable Material Business Contract or
Material Business License, other than reasonable fees for internal and external
professional services incurred in connection therewith. If any such third party
consent is not obtained before the Closing, the Seller and the Purchaser shall
cooperate in any reasonable arrangement designed to provide to the Purchaser
after the Closing the benefits, and to assume the Liabilities of the Seller,
under the applicable Business Contract or Business License.
ARTICLE III.
THE CLOSING
3.1 The Closing. The consummation of the transactions contemplated hereby
shall take place at a closing (the "Closing") to be held at 2:00 p.m., New York
time, on a date to be designated by the Seller and the Purchaser, which shall be
no later than the later of (a) the fifth (5th) Business Day after satisfaction
and fulfillment or, if permissible pursuant to the terms hereof, waiver of the
conditions set forth in Article VII, and (b) the earlier of (i) seventy (70)
calendar days after public notice of the grant of the FCC's consent to the FCC
Applications, (ii) the date (the "XXXX Target Closing Date") that is the later
of (x) June 15, 2000 and (y) ten (10) days prior to the date on which Seller is
obligated to close the sale of Station XXXX-TV, San Francisco (without taking
into consideration any extensions requiring payment or restructuring of the
transaction), or (iii) the consummation of the transactions contemplated by
Section 9.4(b) (the "Closing Date"), at the offices of Xxxxxx & Xxxxxxx, 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
15
New York, unless another time, date or place is mutually agreed upon in writing
by the Seller and the Purchaser.
3.2 Closing Deliveries of the Seller. At the Closing, the Seller shall
deliver, or cause to be delivered, to the Purchaser, the following instruments,
certificates and other documents, dated as of the Closing Date and executed on
behalf of the Seller by a duly authorized officer thereof, in order to effect
the transfer of the Purchased Assets to the Purchaser pursuant to Section 2.1
hereof:
(a) Instruments of Transfer and Assignment.
(i) Special warranty deeds in substantially the forms attached
hereto as Exhibit A1 and Exhibit A2 (the "Deeds"), conveying fee simple title to
all of the Owned Real Property;
(ii) a Xxxx of Sale substantially in the form attached hereto as
Exhibit B (the "Xxxx of Sale");
(iii) an Instrument of Assignment and Assumption substantially in
the form attached hereto as Exhibit C (the "Assignment and Assumption");
(iv) an Assignment of Proprietary Rights substantially in the form
attached hereto as Exhibit D1 (the "Assignment of Proprietary Rights");
(v) an Assignment of Station Licenses substantially in the form
attached hereto as Exhibit D2 (the "Assignment of Station Licenses");
(vi) copies of all instruments, certificates, documents and other
filings (if applicable) necessary to release the Purchased Assets from all
Encumbrances other than Permitted Encumbrances and those Encumbrances set forth
in Schedule 4.5(b) hereto, all in a form reasonably satisfactory to counsel for
the Purchaser;
(vii) copies of all requisite Licenses, waivers, consents,
approvals, authorizations, qualifications and other orders of any Governmental
Authorities with competent jurisdiction over the transactions contemplated
hereby, and all requisite consents, approvals or waivers from third parties,
which are necessary to effect the valid transfer and assignment of the Purchased
Assets to the Purchaser pursuant to this Agreement and to otherwise consummate
the transactions contemplated hereby; and
(viii) all other instruments and certificates of conveyance and
transfer as the Purchaser may reasonably request in order to more effectively
convey and transfer the Purchased Assets to the Purchaser and to put the
Purchaser in operational control of the Business, or for aiding, assisting,
collecting and reducing to possession any of the Purchased Assets and exercising
rights with respect thereto.
(b) Closing Certificates.
16
(i) An officer's certificate substantially in the form attached
hereto as Exhibit E;
(ii) a secretary's certificate substantially in the form attached
hereto as Exhibit F; and
(iii) a certificate of the Seller certifying as to its non-foreign
status which complies with the requirements of Section 1445 of the Internal
Revenue Code.
(c) Legal Opinions.
(i) A legal opinion of Xxxxxx & Xxxxxxx, outside counsel for the
Seller, substantially in the form attached hereto as Exhibit G; and
(ii) a legal opinion of W. Xxxxxx Xxxxxx, general counsel of the
Seller, substantially in the form attached hereto as Exhibit H.
3.3 Closing Deliveries of the Purchaser. At the Closing, the Purchaser
shall deliver, or cause to be delivered, to the Seller, the following
instruments, certificates and other documents, dated as of the Closing Date and
executed or acknowledged (as applicable) on behalf of the Purchaser by a duly
authorized officer thereof, in order to pay for the Purchased Assets and effect
the assumption of all Assumed Liabilities from the Seller pursuant to Section
2.2 hereof:
(a) Cash Payment. An amount in cash equal to the Cash Payment, plus or
minus the amount of any adjustment as provided in Subsection 2.3(b)(i) and (ii),
and minus the amount of any adjustment as provided in Section 6.15, payable by
wire transfer of immediately available funds to an account designated in writing
by the Seller at least two (2) Business Days prior to the Closing Date.
(b) Instruments of Assumption.
(i) The Xxxx of Sale;
(ii) the Assignment and Assumption;
(iii) the Assignment of Proprietary Rights;
(iv) the Assignment of Station Licenses; and
(v) all other instruments and certificates of assumption, novation
and release as the Seller may reasonably request in order to effectively make
the Purchaser responsible for all Assumed Liabilities and release the Seller
therefrom to the fullest extent permitted under applicable Law.
(c) Closing Certificates.
17
(i) An officer's certificate substantially in the form attached
hereto as Exhibit I; and
(ii) a secretary's certificate substantially in the form attached
hereto as Exhibit J.
(d) Legal Opinion. A legal opinion of Shack & Xxxxxx, P.C., outside
counsel for the Purchaser, substantially in the form attached hereto as Exhibit
K.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as
follows:
4.1 Organization. The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada, and has all
requisite corporate power and authority to own, operate or lease the assets and
properties now owned, operated or leased by it, and to conduct the Business as
presently conducted by the Seller. The Seller is duly authorized, qualified or
licensed to do business as a foreign corporation, and is in good standing, under
the Laws of each state or other jurisdiction in which the character of its
properties owned, operated or leased, or the nature of its activities, makes
such qualification necessary, except in those states and jurisdictions where the
failure to be so qualified or in good standing would not reasonably be expected,
as of the date hereof, to have a Material Adverse Effect. True and complete
copies of the Articles of Incorporation (the "Seller Articles of Incorporation")
and Bylaws (the "Seller Bylaws") of the Seller, each as amended and in effect as
of the date of this Agreement, have been made available to the Purchaser and its
agents and representatives.
4.2 Authority. The Seller has all requisite corporate power and authority
to enter into this Agreement and the Seller Documents, to perform its
obligations hereunder and thereunder, and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by the Seller of
this Agreement and the Seller Documents, the performance by the Seller of its
obligations hereunder and thereunder, and the consummation by the Seller of the
transactions contemplated hereby and thereby, have been duly authorized by all
necessary corporate action on the part of the Seller. This Agreement has been
duly executed and delivered by the Seller and, assuming the due authorization,
execution and delivery of this Agreement by the Purchaser, this Agreement
constitutes a legally valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except as such enforceability
may be limited by principles of public policy, and subject to (i) the effect of
any applicable Laws of general application relating to bankruptcy,
reorganization, insolvency, moratorium or similar Laws affecting creditors'
rights and relief of debtors generally, and (ii) the effect of rules of law and
general principles of equity, including, without limitation, rules of law and
general principles of equity governing specific performance, injunctive relief
and other equitable remedies (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Upon the execution and delivery
of the Seller Documents
18
by the Seller at the Closing and, assuming the due authorization, execution and
delivery of the Assignment and Assumption by the Purchaser, each of the Seller
Documents will constitute a legally valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its respective terms, except
as such enforceability may be limited by principles of public policy, and
subject to (i) the effect of any applicable Laws of general application relating
to bankruptcy, reorganization, insolvency, moratorium or similar Laws affecting
creditors' rights and relief of debtors generally, and (ii) the effect of rules
of law and general principles of equity, including, without limitation, rules of
law and general principles of equity governing specific performance, injunctive
relief and other equitable remedies (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
4.3 No Violation; Third Party Consents. Assuming that all consents,
waivers, approvals, orders and authorizations set forth in Schedule 4.4 hereto
have been obtained and all registrations, qualifications, designations,
declarations or filings with any Governmental Authorities set forth in Schedule
4.4 hereto have been made, and except as set forth in Schedule 4.3 hereto, the
execution and delivery by the Seller of this Agreement and the Seller Documents,
the performance by the Seller of its obligations hereunder and thereunder, and
the consummation by the Seller of the transactions contemplated hereby and
thereby, will not conflict with or violate in any material respect, constitute a
material default (or event which with the giving of notice or lapse of time, or
both, would become a material default) under, give rise to any right of
termination, amendment, modification, acceleration or cancellation of any
material obligation or loss of any material benefit under, result in the
creation of any Encumbrance other than a Permitted Encumbrance on any of the
Purchased Assets pursuant to, or require the Seller to obtain any consent,
waiver, approval or action of, make any filing with, or give any notice to any
Person as a result or under, the terms and provisions of (i) the Seller Articles
of Incorporation or the Seller Bylaws, (ii) any Contract to which the Seller is
a party or by which any of the Purchased Assets is bound, or (iii) any Law
applicable to the Seller or any of the Purchased Assets, or any Governmental
Order issued by a Governmental Authority by which the Seller or any of the
Purchased Assets is in any way bound or obligated, except, in the case of
clauses (ii) and (iii) of this Section 4.3, as would not, in any individual
case, or in the aggregate, have a Material Adverse Effect.
4.4 Government Consents. No consent, waiver, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any Governmental Authority is required on the part of the Seller in
connection with the execution and delivery by the Seller of this Agreement and
the Seller Documents, the performance by the Seller of its obligations hereunder
and thereunder, and the consummation by the Seller of the transactions
contemplated hereby and thereby, including, without limitation, the sale and
transfer of the Purchased Assets and transferable Business Licenses to the
Purchaser, except (i) as set forth in Schedule 4.4 hereto, and (ii) where the
failure to obtain such consent, waiver, approval, order or authorization, or to
make such registration, qualification, designation, declaration or filing, would
not, in any individual
19
case, or in the aggregate, reasonably be expected, as of the date hereof, to
have a Material Adverse Effect.
4.5 Tangible Property.
(a) Schedule 4.5(a) hereto contains a true, correct and complete list
of the following to the extent owned, used or held for use by the Seller
primarily to conduct the operations of the Business: (i) each parcel of real
property owned, as of the date hereof, by the Seller ("Owned Real Property"),
(ii) each parcel of real property leased from or to a third party, as of the
date hereof, by the Seller ("Leased Real Property"), the name of the third party
lessor(s) or lessee(s) thereof, as the case may be, the date of the lease
contract relating thereto and all amendments thereof, and (iii) all fixed assets
owned by the Seller, as reflected in the Seller's schedule of fixed assets
prepared in the ordinary course of business as of the date set forth therein.
Except as set forth in Schedule 4.5(a) hereto, the Seller does not own, or have
a contractual obligation to purchase or otherwise acquire any material interest
in, any parcel of real property which would be used or held for use primarily in
the operation of the Business. All of the tangible assets and properties used by
the Seller pursuant to a lease or license included among the Purchased Assets
shall be referred to herein, collectively, as "Leased Assets."
(b) The Seller has, and at the Closing the Seller will convey to the
Purchaser and the Purchaser will acquire, (i) legal and valid (and in the case
of Owned Real Property, insurable) title to, or all of the Seller's right, title
and interest in and to, all of the Purchased Assets, and (ii) valid and
subsisting licenses or leasehold interests in and to all of the Leased Real
Property and other Leased Assets, in each case free and clear of any
Encumbrances other than Permitted Encumbrances and those Encumbrances set forth
in Schedule 4.5(b) hereto. The Seller has fee simple title to all of the Owned
Real Property.
(c) To the knowledge of the Seller, none of the Owned Real Property or
Leased Real Property has been condemned or otherwise taken by any public
authority, no condemnation or taking is threatened or contemplated and none
thereof is subject to any claim, contract or law which might affect its use or
value for the purposes now made of it, and each thereof is in good condition and
repair.
4.6 Intellectual Property and Proprietary Rights.
(a) Schedule 4.6(a) hereto contains a true, correct and complete list
of all material Intellectual Property owned by the Seller as of the date hereof,
to the extent such Intellectual Property is related primarily to the operations
of the Business. A true and complete copy of all material documentation relating
to each item of Intellectual Property set forth in Schedule 4.6(a) hereto has
been made available to the Purchaser and its agents and representatives.
(b) The Seller owns or has a valid right to use all Proprietary Rights
used by the Seller to conduct the operations of the Business as currently
conducted by the Seller,
20
without infringing upon the rights of any other Person, except as would not, in
any individual case, or in the aggregate, reasonably be expected, as of the date
hereof, to have a Material Adverse Effect. To the knowledge of the Seller, no
other Person is infringing upon the rights of the Seller in or to any of the
Intellectual Property set forth in Schedule 4.6(a) hereto, except as would not,
in any individual case, or in the aggregate, reasonably be expected, as of the
date hereof, to have a Material Adverse Effect.
4.7 Business Contracts.
(a) Schedule 4.7(b) hereto contains a list of each Business Contract
(whether written or oral and including all amendments thereto) to which the
Seller is a party or by which the Seller or any of the Purchased Assets is bound
as of the date hereof, which is material to the Business, the Purchased Assets
or the Assumed Liabilities (each, a "Material Business Contract" and,
collectively, the "Material Business Contracts"), including, without limitation,
the following: (i) noncompetition or other agreements restricting the ability of
the Seller to engage in the Business in any location, and (ii) agreements under
which the Seller is obligated to indemnify, or entitled to indemnification from,
any other Person, other than any agreement that requires indemnification solely
in connection with or as a result of a breach of such agreement; provided,
however, that any Contract for the sale of time shall be deemed not to be a
Material Business Contract for purposes of this Section 4.7(a). For purposes of
this Agreement, any Short Term Agreements and any Business Contracts to which
the Seller is a party and which obligates the Seller to pay Thirty-Five Thousand
Dollars ($35,000) or less in payments over the remaining term of such Business
Contract, shall be deemed not to be a Material Business Contract, and any
Business Contracts (other than Short Term Agreements) to which the Seller is a
party and which obligates the Seller to pay more than Thirty-Five Thousand
Dollars ($35,000) in payments over the remaining term of such Business Contract
shall be deemed to be a Material Business Contract. For all purposes of and
under this Agreement, the term "Short Term Agreement" shall mean an agreement
entered into in the ordinary course of business that is terminable by the Seller
upon ninety (90) calendar days or less notice without premium or penalty.
(b) Except as set forth in Schedule 4.7(a), the Seller has made
available to the Purchaser and its agents and representatives a true, complete
and correct copy of each written Material Business Contract and a written
summary of each oral Material Business Contract. Except as set forth in Schedule
4.7(b) hereto, (i) each Material Business Contract is in full force and effect
and represents a valid, binding and enforceable obligation of the Seller in
accordance with the respective terms thereof and, to the knowledge of the
Seller, represents a valid, binding and enforceable obligation of each of the
other parties thereto; and (ii) there exists no material breach or material
default (or event that with notice or the lapse of time, or both, would
constitute a material breach or material default) on the part of the Seller or,
to the knowledge of the Seller, on the part of any other party under any
Material Business Contract, in any individual case, or in the aggregate, which
has had or could reasonably be expected, as of the date hereof, to have a
Material Adverse Effect.
21
(c) To the knowledge of the Seller, as of the date hereof, there is no
fact or circumstance that would permit the termination for cause of (i) the
Primary Television Affiliation Agreement dated December 20, 1996, between the
Seller and American Broadcasting Companies, Inc. by American Broadcasting
Companies, Inc., or (ii) the Affiliation Agreement Term Sheet dated December 6,
1994, between the Seller and NBC Television Network, as affected by a letter
dated September 29, 1998, in either case prior to the expiration of their
respective terms and with respect to the Stations.
4.8 Business Licenses. Schedule 4.8 hereto contains a list of each Business
License which is necessary to conduct the Business as conducted by the Seller as
of the date hereof, except for such Business Licenses which the failure to
obtain or possess would not have a Material Adverse Effect (each, a "Material
Business License" and, collectively, the "Material Business Licenses"). No loss
or expiration of any Material Business License is pending or, to the knowledge
of the Seller, threatened, other than the expiration of any Material Business
Licenses in accordance with the terms thereof which may be renewed in the
ordinary course of business.
4.9 Business Employees. Schedule 4.9 hereto contains a true, correct and
complete list of all employees of the Seller who, as of the date of this
Agreement, have employment duties principally related to the Business, including
(and designating as such) any such employee who is an inactive employee on paid
or unpaid leave of absence, and indicating date of employment, current title and
compensation. Each employee set forth in Schedule 4.9 hereto who remains
employed by the Seller immediately prior to the Closing (whether actively or
inactively), and each additional employee who is hired to work in the Business
following the date hereof and prior to the Closing who remains employed by the
Seller immediately prior to the Closing (whether actively or inactively), shall
be referred to herein individually as a "Business Employee" and, collectively,
as "Business Employees." Expect as set forth on Schedule 4.9, no current or
former director, officer or employee of the Seller at any of the Stations or any
relative, associate or agent of such director, officer or employee has any
interest in any property of the Seller except as a stockholder, or is a party,
directly or indirectly, to any contract for employment or otherwise or any lease
or has entered into any transaction with the Seller, including, without
limitation, any contract for the furnishing of services by, or rental of real or
personal property from or to, or requiring payments to, any such director,
officer, employee, relative, associate or agent. Complete and correct copies of
any such contracts have been delivered to the Purchaser. The Seller does not
have any written contract for the future employment of any Business Employee
except as may be listed on Schedule 4.9 or Schedule 4.10(a).
4.10 Employee Benefit Plans.
(a) Schedule 4.10(a) hereto contains a true, correct and complete list
of each employment, bonus, incentive compensation, deferred compensation,
pension, profit sharing, retirement, stock purchase, stock option, stock
ownership, stock appreciation rights, phantom stock, equity (or equity-based),
leave of absence, layoff, vacation, day or
22
dependent care, legal services, cafeteria, life, health, medical, accident,
disability, workmen's compensation or other insurance, severance, separation,
termination, change of control or other benefit plan, agreement (including any
collective bargaining agreement), practice, policy or arrangement, whether
written or oral, and whether or not subject to ERISA (including, without
limitation, any "employee benefit plan" within the meaning of Section 3(3) of
ERISA), which the Seller sponsors, maintains, has any obligation to contribute
to, has Liability under or is otherwise a party to as of the date hereof, and
which covers or otherwise provides benefits to any Business Employees or former
employees of the Seller whose employment duties principally related to the
Business during the term of their employment ("Former Business Employees") (or
their dependents and beneficiaries) (with respect to their relationship with the
Business) (each, a "Benefit Plan" and, collectively, the "Benefit Plans").
(b) The Seller has not received any written notice from any labor union
or group of employees other than as listed on Schedule 4.10(a) that such union
or group represents or believes or claims it represents or intends to represent
any of the employees of the Seller employed at any of the Stations; to the
Seller's knowledge, no strike or work interruption by the Seller's employees at
any of the Stations is planned, under consideration, threatened or imminent; the
Seller has not received any written notice from any labor union with which the
Seller has a collective bargaining agreement that such union desires to amend or
renegotiate the terms of any such collective bargaining agreement with the
Seller prior to its expiration; and neither the Seller nor any officer or
director of the Seller has made any loan or given anything of value, directly or
indirectly, to any officer, official, agent or representative of any labor union
or group of employees other than salaries and ordinary course compensation. At
no time since January 1, 1999 has any of the Stations experienced any threats of
strikes or work stoppages by any union or labor organization or any other group
or other organization of employees. Except as set forth on Schedule 4.10(a) and
made a part hereof:
(i) the Seller is not delinquent in payments to any of its
employees at any of the Stations for any wages, salaries, commissions, bonuses
or other direct compensation for any services performed by them to the date
hereof or amounts required to be reimbursed to such employees;
(ii) in the event of termination of the employment of any said
employees other than termination of any employee who is a party to an employment
agreement with the Seller, neither the Seller nor the Purchaser will by reason
of anything done prior to the Closing be liable to any of said employees for
so-called "severance pay" or any other payments other than as specified in the
applicable collective bargaining agreements, other employment agreements or any
severance agreements referred to in Schedule 4.10(a).
(iii) the Seller is in compliance in all material respects with all
Laws concerning labor, employment and employment practices, terms and conditions
of employment and wages and hours; and there is no unfair labor practice
complaint against
23
the Seller relating to the business and operation of any of the Stations pending
before the National Labor Relations Board;
(iv) each of the Assumed Plans and the Seller 401(k) Plan presently
complies and has been operated in compliance in all material respects with its
terms and all applicable Laws, including, without limitation, all tax rules for
which favorable tax treatment is intended;
(v) each of the Assumed Plans and the Seller 401(k) Plan which is
intended to be tax-qualified under Section 401(a) of the Internal Revenue Code
has been determined by the IRS to be so qualified and, to the knowledge of the
Seller, no circumstances have occurred that would adversely affect the
tax-qualified status of any such Assumed Plan or the Seller 401(k) Plan;
(vi) with respect to each of the Assumed Plans, the Seller 401(k)
Plan and the Seller DB Plan, true, correct, and complete copies of the
applicable following documents have been provided or made available to the
Purchaser and its agents and representatives: (A) all current plan documents and
related trust documents, and any amendments thereto; (B) Forms 5500, financial
statements, and actuarial reports for the most recent plan year; (C) the most
recently issued IRS determination letter; (D) summary plan descriptions; and (E)
if the Benefit Plan is funded, the most recent annual account of the Benefit
Plan's assets; and
(vii) neither the Seller, nor any entity required to be aggregated
with the Seller or any Subsidiary thereof (as defined under Sections 414(b),
414(c), 414(m) or 414(o) of the Internal Revenue Code or Section 4001 of ERISA)
has incurred any withdrawal liability that has not been satisfied with respect
to any "multiemployer plan" (as defined in Section 3(37) of ERISA).
(c) Except as set forth in Schedule 4.10(c) hereto, the execution and
delivery by the Seller of this Agreement and the Seller Documents, the
performance by the Seller of its obligations hereunder and thereunder, and the
consummation by the Seller of the transactions contemplated hereby and thereby,
does not and will not result in the acceleration or creation of any rights or
benefits of any current or former Business Employee (or other current or former
service provider to the Business) that would not have been required but for the
transactions contemplated by this Agreement.
(d) To the knowledge of the Seller, no "disqualified person" or
"party-in-interest" (as defined in Section 4975 of the Internal Revenue Code and
Section 3 of ERISA, respectively) has engaged in any "prohibited transaction,"
as such term is defined in Section 4975 of the Internal Revenue Code or Section
406 of ERISA, which could subject any Assumed Plan (or its related trust),
Seller, Purchaser or any of their affiliates, or any officer, director or
employee of any of them to any tax or penalty imposed under Section 4975 of the
Internal Revenue Code or ERISA either directly or indirectly, and whether by way
of indemnity or otherwise.
24
(e) The Seller does not have any Liability to the Pension Benefit
Guaranty Corporation ("PBGC") with respect to any Assumed Plan and does not have
any Liability under ERISA Sections 502 or 4071.
(f) All filings required by ERISA and the Internal Revenue Code with
respect to any Assumed Plan have been timely filed, and all notices and
disclosures to participants and beneficiaries required by ERISA and the Internal
Revenue Code have been timely provided.
(g) Other than routine claims for benefits, no claim against or
involving any Assumed Plan is pending or, to the knowledge of Seller is
threatened.
(h) Seller has met the minimum funding standards, and has made all
contributions required under ERISA Section 302 and Internal Revenue Code Section
402 and there is no accumulated funding deficiency with respect to any Assumed
Plan.
(i) No steps have been taken to terminate any Assumed Plan which is
subject to Title IV of ERISA and no liability under such Title has been incurred
by Seller since the effective date of ERISA (in connection with an Assumed Plan)
that has not been satisfied in full. No condition exists that could reasonably
be expected to result in Seller incurring a liability under such Title and no
proceeding has been initiated by the PBGC to terminate any Assumed Plan or to
appoint a trustee to administer any Assumed Plan. No "reportable event" within
the meaning of Section 4043 of ERISA and the regulations promulgated thereunder
has occurred with respect to any Assumed Plan (other than those which may result
from the transactions contemplated hereby).
(j) Seller has not withdrawn from any Assumed Plan as a "substantial
employer" so as to become subject to the provisions of Section 4063 of ERISA, or
ceased operations at any facility so as to become subject to the provisions of
Section 4068(f) of ERISA.
(k) Those sections of all annual reports heretofore filed with the IRS,
the Department of Labor and the PBGC by or on behalf of every Assumed Plan which
were required to be certified were only certified without qualification by the
accountants or actuaries of such Assumed Plan.
(l) Seller does not maintain any Assumed Plan which is funded by an
association described in Section 501(c)(9) of the Internal Revenue Code.
(m) Except for the retiree health arrangement for Xxxxxx Xxxxxxx
referred to in Schedule 6.9(j), no Assumed Plan provides any retiree health,
life or other non-pension retirement benefit.
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4.11 Sufficiency of Purchased Assets.
(a) The Purchased Assets (including the licenses or leasehold interests
in or relating to the Leased Assets) constitute all of the assets, properties
and rights necessary for the conduct of the Business by the Seller in a manner
consistent with past practice.
(b) The tangible personal property included in the Purchased Assets or
the Leased Assets are in good condition and repair (ordinary wear and tear
excepted) for property of comparable type, age and usage, except for tangible
personal property that is obsolete and no longer used in the Business.
4.12 Financial Statements.
(a) Attached to Schedule 4.12(a) hereto is a true, correct and complete
copy of the following financial statements (collectively, the "Financial
Statements"): (i) the unaudited balance sheet of the Business (the "Latest
Balance Sheet") as of October 31, 1999 (the "Latest Balance Sheet Date"), and
the related unaudited income statement for the ten (10) month period then ended,
and (ii) the unaudited balance sheets of the Business as of December 31, 1998
and December 31, 1997, and the related unaudited income statements for the years
then ended. Each of the Financial Statements is derived from the books and
records of the Seller (which are accurate and complete in all material respects)
and the audited consolidated financial statements of the Seller (which were
prepared in accordance with GAAP), and fairly present, in all material respects,
the assets and the Liabilities of the Seller that primarily relate to, or
primarily arise out of, the Business as of the respective dates thereof, and the
results of operations for the respective periods then ended.
(b) Except as set forth in Schedule 4.12(b) hereto, no reserves or
other Liabilities attributable to the Business were recorded in the consolidated
financial statements of the Seller as of July 31, 1999, December 31, 1998, and
December 31, 1997 respectively, that are not reflected in the Financial
Statements.
4.13 No Undisclosed Liabilities. The Seller has no Liabilities that are
attributable to the Business other than (i) the Liabilities reflected on the
Latest Balance Sheet, (ii) Liabilities incurred in the ordinary course of
business after the Latest Balance Sheet Date, none of which is material to the
assets, properties, business, results of operations or condition (financial or
otherwise) of the Business, (iii) Liabilities set forth in Schedule 4.13 hereto,
and (iv) Liabilities that individually or in the aggregate, have not and would
not reasonably be expected, as of the date hereof, to have a Material Adverse
Effect.
4.14 Subsidiaries and Investments. The Seller does not have any
Subsidiaries, and does not own any direct or indirect equity or debt interest in
any other Person, including, without limitation, any interest in a corporation,
partnership or joint venture, and is not obligated or committed to acquire any
such interest, in any case which Subsidiary, interest or other Person relates
primarily to the Business.
26
4.15 Litigation; Governmental Orders.
(a) Except as set forth in Schedule 4.15 hereto, as of the date hereof,
there are no pending or, to the knowledge of the Seller, threatened Actions by
any Person or Governmental Authority against or relating to the Seller with
respect to the Business or any Assumed Plan or, to the knowledge of the Seller,
any current or former employees (in their capacity as such) of the Seller, or to
which any of the Purchased Assets are subject, other than those which would not,
in any individual case, or in the aggregate, reasonably be expected, as of the
date hereof, to have an adverse effect on the Business in an amount in excess of
Twenty-Five Thousand Dollars ($25,000) or in which an unfavorable judgment,
decree or order would restrain, prohibit, invalidate, set aside, rescind,
prevent or make unlawful this Agreement or the carrying out of this Agreement or
the transactions contemplated hereby.
(b) The Seller is not subject to or bound by any Governmental Order
other than those which would not, in any individual case, or in the aggregate,
reasonably be expected, as of the date hereof, to have a Material Adverse
Effect.
4.16 Compliance with Laws. Except as set forth in Schedule 4.16 hereto, to
the knowledge of the Seller, as of the date hereof the Seller is in compliance
with, and the Seller has not received any claim or notice that it is not in
current compliance with, each material Law or Governmental Order applicable to
the Business.
4.17 Environmental Matters. Except as would not reasonably be expected, as
of the date hereof, to result in a Material Adverse Effect, (i) no Hazardous
Material is present at any of the Owned Real Property or Leased Real Property in
violation of any applicable Environmental Law or in a manner that would
reasonably be expected, as of the date hereof, to result in liability under any
Environmental Law, (ii) during the course of its operation of the Business, the
Seller has not engaged in any Hazardous Materials Activity in violation of any
applicable Environmental Law or in a manner that would reasonably be expected,
as of the date hereof, to result in liability under any Environmental Law, and
(iii) as of the date hereof, no Action is pending or, to the knowledge of the
Seller, has been threatened against the Seller concerning any of the Owned Real
Property or Leased Real Property, or any of the Hazardous Materials Activities
of the Seller taken during the course of its operation of the Business. To the
knowledge of the Seller, there have been no releases of Hazardous Materials at,
on or under any Owned Real Property or Leased Real Property that, singly or in
the aggregate, have, or may reasonably be expected to have, a Material Adverse
Effect.
4.18 Insurance.
(a) Schedule 4.18 hereto contains a true, correct and complete list
(specifying the insurer, the type of coverage, expiration date, pending claims
thereunder, the policy number or covering note number with respect to binders
and the limits, and the aggregate limit, if any, of the insurer's liability
thereunder) of all policies or binders of fire, liability, errors and omissions,
workers' compensation, vehicular, and other insurance held by or
27
on behalf of the Seller with respect to the Business as of the date hereof
("Business Insurance Policies").
(b) All of the Business Insurance Policies are in full force and
effect. The Seller is not in default with respect to any material provision
contained in any such Business Insurance Policy, nor has the Seller failed to
give any notice or present any claim under any such Business Insurance Policy in
due and timely fashion. The Seller has not received any notice of cancellation
or non-renewal of any such Business Insurance Policy. The Seller has not
received any notice from any of its insurance carriers that any premiums will be
materially increased in the future or that any insurance coverage under the
Business Insurance Policies will not be available in the future on substantially
the same terms as now in effect.
(c) All of the Business Insurance Policies in the name of the Seller
with respect to libel shall be in full force and effect and enforceable by the
Purchaser following the consummation of the transactions contemplated by this
Agreement in respect of all reported or unreported libel claims arising out of
occurrences prior to the consummation of this Agreement.
4.19 Transactions with Affiliates. Except as set forth in Schedule 4.19
hereto, no shareholder, officer or director of the Seller or any of its
Affiliates, or any immediate family member of any of the foregoing, has (a)
borrowed money from, or loaned money to, the Business which remains outstanding,
(b) except as set forth in Schedule 4.19 hereto, any contractual or other claim,
express or implied, of any kind whatsoever against the Business, (c) any
interest in any of the Purchased Assets, or (d) engaged in any other transaction
with the Business other than in such person's capacity as an employee, officer
or director of the Seller.
4.20 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Seller directly
with the Purchaser without the intervention of any Person on behalf of the
Seller in such manner as to give rise to any valid claim by any Person against
the Purchaser for a finder's fee, brokerage commission or similar payment, other
than Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, whose fees and
expenses shall be borne by the Seller.
4.21 FCC Matters. The Seller is the holder of the Station Licenses as set
forth on Schedule 4.21 which constitute all FCC licenses, permits and
authorizations necessary for the Seller to operate television station
transmitters on Channel 6 in Omaha, Nebraska, Channel 10 in Wichita, Kansas,
Channel 13 in Garden City, Kansas, and Channel 4 in Colby, Kansas. Other than
matters of general applicability to television stations in the Omaha, Nebraska,
Wichita, Kansas, Garden City, Kansas, and Colby, Kansas markets, respectively,
there are no fines, forfeitures, notices of apparent liability, orders to show
cause or any other administrative or judicial orders outstanding nor any
proceeding pending or, to the knowledge of the Seller, threatened, the effect of
which would be the revocation, cancellation, non-renewal, suspension or adverse
modification of the Station
28
Licenses or any materially adverse consequence for any of the Stations, and
there does not exist any event of which the Seller has knowledge, which with
notice or the passing of time or both could result in a fine, forfeiture, notice
of apparent liability, order to show cause or any other administrative or
judicial order or proceeding by the FCC, the effect of which would result in the
revocation, cancellation, non-renewal, suspension or adverse modification of any
of the Station Licenses or have a Material Adverse Effect. The Station Licenses
are in full force and effect.
4.22 Taxes. Except as set forth on Schedule 4.22, with respect to Taxes,
other than Income Taxes, relating to the Business (a) the Seller has duly filed
all Tax Returns required to have been filed by the Seller prior to the date
hereof; and (b) each such Tax Return is true, correct and complete in all
material respects and the Seller has paid all Taxes shown to be due thereon. The
Seller has paid to the proper authorities all material customs, duties and
similar or related charges relating to the Business required to be paid by the
Seller with respect to the importation of goods into the United States. No
government or Governmental Authority is now asserting or threatening to assert
any deficiency or assessment for additional Taxes other than Income Taxes with
respect to the Business.
4.23 Accuracy of Information. Neither this Agreement nor the representations
and warranties by the Seller contained herein or in any Exhibit hereto contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements or fact contained herein and therein not
misleading.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as follows:
5.1 Organization. The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
5.2 Authority. The Purchaser has all requisite corporate power and
authority to enter into this Agreement and the Assignment and Assumption, to
perform its obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by the
Purchaser of this Agreement and the Assignment and Assumption, the performance
by the Purchaser of its obligations hereunder and thereunder, and the
consummation by the Purchaser of the transactions contemplated hereby and
thereby, have been duly authorized by all necessary corporate action on the part
of the Purchaser. This Agreement has been duly executed and delivered by the
Purchaser and, assuming the due authorization, execution and delivery of this
Agreement by the Seller, this Agreement constitutes a legally valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except as such enforceability may be limited by principles of
public policy, and subject to (i) the effect of any applicable Laws of general
application relating to bankruptcy, reorganization, insolvency, moratorium or
similar Laws affecting creditors'
29
rights and relief of debtors generally, and (ii) the effect of rules of law and
general principles of equity, including, without limitation, rules of law and
general principles of equity governing specific performance, injunctive relief
and other equitable remedies (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Upon the execution and delivery
of the Assignment and Assumption by the Purchaser at the Closing and, assuming
the due authorization, execution and delivery thereof by the Seller, the
Assignment and Assumption will constitute a legally valid and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms, except as such enforceability may be limited by principles of public
policy, and subject to (i) the effect of any applicable Laws of general
application relating to bankruptcy, reorganization, insolvency, moratorium or
similar Laws affecting creditors' rights and relief of debtors generally, and
(ii) the effect of rules of law and general principles of equity, including,
without limitation, rules of law and general principles of equity governing
specific performance, injunctive relief and other equitable remedies (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
5.3 No Violation. Assuming that all consents, waivers, approvals, orders
and authorizations set forth in Schedule 5.4 hereto have been obtained and all
registrations, qualifications, designations, declarations or filings with any
Governmental Authorities set forth in Schedule 5.4 hereto have been made, and
except as set forth in Schedule 5.3 hereto, the execution and delivery by the
Purchaser of this Agreement and the Assignment and Assumption, the performance
by the Purchaser of its obligations hereunder and thereunder, and the
consummation by the Purchaser of the transactions contemplated hereby and
thereby, will not conflict with or violate in any material respect, constitute a
material default (or event which with the giving of notice or lapse of time, or
both, would become a material default) under, give rise to any right of
termination, amendment, modification, acceleration or cancellation of any
material obligation or loss of any material benefit under, or require the
Purchaser to obtain any consent, waiver, approval or action of, make any filing
with, or give any notice to any Person as a result or under, the terms or
provisions of (i) the organizational documents of the Purchaser, (ii) any
Contract to which the Purchaser is a party or is bound, or (iii) any Law
applicable to the Purchaser, or any Governmental Order issued by a Governmental
Authority by which the Purchaser is in any way bound or obligated, except, in
the case of clauses (ii) and (iii) of this Section 5.3, as would not, in any
individual case, have a material adverse effect on the ability of the Purchaser
to perform its obligations under this Agreement and the Assignment and
Assumption or to consummate the transactions contemplated hereby or thereby.
5.4 Governmental Consents. No consent, waiver, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any Governmental Authority is required on the part of the Purchaser
in connection with the execution and delivery by the Purchaser of this Agreement
and the Assignment and Assumption, the performance by the Purchaser of its
obligations hereunder and thereunder, and the consummation by the Purchaser of
the transactions contemplated hereby and thereby,
30
including, without limitation, the assumption of the Assumed Liabilities from
the Seller, except (i) as set forth in Schedule 5.4 hereto, and (ii) where the
failure to obtain such consent, waiver, approval, order or authorization, or to
make such registration, qualification, designation, declaration or filing, would
not have a material adverse effect on the ability of the Purchaser to perform
its obligations under this Agreement and the Assignment and Assumption or to
consummate the transactions contemplated hereby or thereby.
5.5 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Purchaser directly
with the Seller without the intervention of any Person on behalf of the
Purchaser in such manner as to give rise to any valid claim by any Person
against the Seller for a finder's fee, brokerage commission or similar payment.
5.6 FCC Matters. The Purchaser is legally and financially qualified under
the Communications Act to enter into this Agreement and the Assignment and
Assumption, and to consummate the transactions contemplated hereby and thereby.
In connection with the transactions contemplated by the Agreement, except as set
forth in Schedule 5.6 hereto, it is not necessary for the Purchaser or any
Affiliate of the Purchaser (or any person in which the Purchaser or any
Affiliate of the Purchaser has an attributable interest under the Communications
Act) to seek or obtain any waiver from the FCC, dispose of any interest in any
media or communications property or interest (including, without limitation, any
of the Stations), terminate any venture or arrangement, or effectuate any
changes or restructuring of its ownership, including, without limitation, the
withdrawal or removal of officers or directors or the conversion or repurchase
of equity securities of the Purchaser or any Affiliate of the Purchaser or owned
by the Purchaser or any Affiliate of the Purchaser (or any person in which the
Purchaser or any Affiliate of the Purchaser has any attributable interest under
the Communications Act). The Purchaser is able to certify on an FCC Form 314
that it is financially qualified.
5.7 Accuracy of Information. Neither this Agreement nor the
representations and warranties by the Purchaser contained herein or in any
Exhibit hereto contain any untrue statement of a material fact or omits to
state a material fact necessary to make the statements or fact contained herein
and therein not misleading.
ARTICLE VI.
COVENANTS AND AGREEMENTS
6.1 Conduct of Business.
(a) At all times during the period commencing upon the execution and
delivery hereof by each of the parties hereto and terminating upon the earlier
to occur of the Closing or the termination of this Agreement pursuant to and in
accordance with the terms of Section 8.1 hereof, unless the Purchaser shall
otherwise consent in writing, the Seller shall (a) conduct the operations of the
Business in the ordinary course of business and consistent with past practices
and in material conformity with the Xxxxxxx Xxxxxxxx
00
xxx xxx Xxxxxxxxxxxxxx Xxx, (x) use commercially reasonable efforts to preserve
intact the goodwill of the Business and the current relationships of the Seller
with its officers, employees, customers, suppliers and others with significant
and recurring business dealings with the Business, (c) use commercially
reasonable efforts to maintain in full force and effect all Business Insurance
Policies and all Business Licenses that are necessary for the Seller to carry
on the Business in the manner conducted by the Seller as of the date hereof,
(d) maintain the books of account and records of the Business in the usual,
regular and ordinary manner and consistent with past practices, and (e) not
take any action that would result in a breach of or inaccuracy in (in each case
as of the Closing) any of the representations and warranties of the Seller
contained in Article IV hereof.
(b) At all times during the period commencing upon the date hereof and
terminating upon the earlier to occur of the Closing or the termination of this
Agreement pursuant to and in accordance with the terms of Section 8.1 hereof,
unless the Purchaser shall otherwise consent in writing and except as otherwise
set forth in Schedule 6.1 hereto, the Seller shall not take, or caused to be
taken, any of the following actions to the extent such actions relate primarily
to the Business:
(i) change or agree to rearrange in any material respect the
character of the Business;
(ii) (A) adopt, enter into or amend any arrangement which is, or
would be, an Assumed Plan unless otherwise required by applicable Law or this
Agreement, or (B) make any change in any actuarial methods or assumptions used
in funding any Assumed Plan or in the assumptions or factors used in determining
benefit equivalencies thereunder;
(iii) knowingly waive any right of material value;
(iv) make any change in the accounting methods or practices of the
Seller, or make any changes in depreciation or amortization policies or rates
adopted by the Seller;
(v) except in the ordinary course of business and consistent with
past practices, make any write down of inventory or write off as uncollectible
of accounts receivable;
(vi) unless the Purchaser shall consent in writing (which consent
shall not be unreasonably withheld or delayed), increase any wage, salary, bonus
or other direct or indirect compensation payable or to become payable to any of
the Business Employees, or make any accrual for or commitment or agreement to
make or pay the same that impose material obligations on the Seller extending
beyond the Closing Date, other than increases in wages, salary, bonuses or other
direct or indirect compensation to any of the Business Employees made in the
ordinary course of business consistent with past practice, and those required by
any Contract or Law applicable to the Seller;
32
(vii) unless the Purchaser shall consent in writing (which consent
shall not be unreasonably withheld or delayed), enter into any transactions with
any of its shareholders, officers, directors or their immediate family members,
or any Affiliate of any of the foregoing that impose material obligations on the
Seller extending beyond the Closing Date;
(viii) unless the Purchaser shall consent in writing (which consent
shall not be unreasonably withheld or delayed), except as set forth on Schedule
6.9 hereto, make any commitment to pay any severance or termination pay to any
Business Employee or any independent contractor, consultant, agent or other
representative of the Business, that impose material obligations on the Seller
extending beyond the Closing Date;
(ix) (A) enter into any real property lease (as lessor or lessee);
(B) sell, abandon or make any other disposition of any of the assets or
properties of the Seller other than in the ordinary course of business
consistent with past practice and in the case of a sale, where the asset is
replaced with an asset of similar utility and value; or (C) grant or incur any
Encumbrance on any of the assets or properties of the Seller; in any case,
without the prior written consent of the Purchaser, which shall not be
unreasonably withheld or delayed;
(x) except in the ordinary course of business and except for
Excluded Liabilities, incur or assume any debt, obligation or Liability;
(xi) make any acquisition of all or any part of the capital stock
or all or substantially all of the assets, properties or business of any other
Person;
(xii) unless the Purchaser shall consent in writing (which consent
shall not be unreasonably withheld or delayed) enter into any commitments to
make capital expenditures payable after the Closing in an aggregate amount
exceeding an average of $10,000 per quarter, other than in the ordinary course
and as provided in capital expenditures budgeted for the Business as set forth
on Schedule 6.1(b) hereto; provided however, the Seller shall not enter into any
commitment to make capital expenditures that unreasonably delays such
expenditures until after the Closing and is inconsistent with past practice;
provided further, the Seller shall not enter into any capital leases that
include commitments to make payments after the Closing in excess of Fifty
Thousand Dollars ($50,000) in any individual case or Two Hundred Fifty Thousand
Dollars ($250,000) in the aggregate, unless the Purchaser shall consent in
writing (which consent shall not be unreasonably withheld or delayed);
(xiii) enter into any Contract relating to sales of advertising
time other than in the ordinary course of business or contract or agree to
provide any advertising or broadcast time at substantially less than customary
rate practices; provided that all such sales of advertising time shall be for
cash or on a trade basis to the extent such trades are made in the ordinary
course and consistent with past practice of the Business, or to the extent the
Seller receives the Purchaser's prior written consent thereto;
33
(xiv) unless the Purchaser shall consent in writing (which consent
shall not be unreasonably withheld or delayed), enter into any employment
agreement or become liable for any bonus, profit-sharing or incentive payment to
any of its officers, directors or employees, except pursuant to presently
existing Assumed Plans, arrangements or agreements disclosed herein or in a
schedule hereto or except with respect to any retention bonus for Business
Employees to be paid by the Seller;
(xv) make any material changes in the Seller's customary method of
operations, including marketing and pricing and policies and maintenance of
business premises, fixtures, furniture or equipment;
(xvi) enter into any collective bargaining agreement;
(xvii) enter into or renew any programming contract with a term
that extends beyond the 2000/2001 broadcast year or amend or modify any network
affiliation or representation agreement; or
(xviii) fail to expend funds for budgeted capital expenditures or
commitments substantially pursuant to the timetable provided in the capital
expenditures budget for the Business, as previously provided by the Seller to
the Purchaser.
(c) Notwithstanding anything to the contrary set forth in this Section
6.1 or elsewhere in this Agreement, the Seller shall be permitted, without
obtaining the consent or other approval of the Purchaser, to enter into, perform
its obligations under, and consummate the transactions contemplated by, any
existing or new agreements or other arrangements pursuant to which the Seller
shall sell, transfer or otherwise dispose of any of its assets other than the
Purchased Assets, it being expressly acknowledged and agreed by each of the
parties hereto that the foregoing shall include the right to distribute the
proceeds from any such sale, transfer or other disposition to the shareholders
of the Seller without obtaining the consent or other approval of the Purchaser.
6.2 Access and Information. Subject to the terms of the Confidentiality
Agreement, at all times during the period commencing upon the execution and
delivery hereof by each of the parties hereto and terminating upon the earlier
to occur of the Closing or the termination of this Agreement pursuant to and in
accordance with the terms of Section 8.1 hereof, the Seller shall permit the
Purchaser and its authorized agents and representatives to have reasonable
access, upon reasonable notice and during normal business hours, to all Business
Employees, assets and properties and all relevant books, records and documents
of or relating to the Business, the Purchased Assets and the Assumed
Liabilities, including the work papers of Xxxxxx Xxxxxxxx LLP (accountant of the
Seller) relating to the Financial Statements, and shall furnish to the Purchaser
such information and data, financial records and other documents relating to the
Business, the Purchased Assets and the Assumed Liabilities as the Purchaser may
reasonably request. Representatives of Purchaser shall be entitled to hold one
or more meetings with Business Employees in each jurisdiction upon reasonable
notice to Seller and to provide written materials to Business Employees to
explain and answer questions about the conditions,
34
policies and benefits of employment with Purchaser. Seller shall be entitled to
have one or more representatives at any such meeting. The Seller shall permit
the Purchaser and its agents and representatives reasonable access to the
Seller's accountants, auditors and suppliers for reasonable consultation or
verification of any information obtained by the Purchaser during the course of
any investigation conducted pursuant to this Section 6.2, and shall use all
commercially reasonable efforts to cause such Persons to cooperate with the
Purchaser and its agents and representatives in such consultations and in
verifying such information. The Seller shall deliver to the Purchaser (i)
unaudited monthly operating statements of the Stations within ten (10) calendar
days after the end of each calendar month, (ii) unaudited annual financial
statements of the Stations within seventy-five (75) days of the end of the
fiscal year, and (iii) on a weekly basis, pacing reports for the ensuing three
month period, it being expressly understood and agreed that delivery of any
financial information pursuant to this Section 6.2 by the Seller or Xxxxxx
Xxxxxxxx LLP, as applicable, to the Purchaser shall not constitute a
representation or warranty as to the future financial performance of the
Stations or the Business. Notwithstanding anything to the contrary contained in
the Confidentiality Agreement, the Purchaser shall have the right to contact the
executive officers of the Seller or the general manager, or other senior
management personnel, of each of the Stations directly with respect to any
information provided, or to be provided, by the Seller pursuant to this Section
6.2.
6.3 Confidentiality. The terms of the Confidentiality Agreement are hereby
incorporated herein by reference and shall continue in full force and effect
from and after the Closing in accordance with the terms thereof, such that the
information obtained by any party hereto, or its officers, employees, agents or
representatives, during any investigation conducted pursuant to Section 6.2
hereof, in connection with the negotiation, execution and performance of this
Agreement, the consummation of the transactions contemplated hereby, or
otherwise, shall be governed by the terms set forth in the Confidentiality
Agreement.
6.4 Further Actions.
(a) Upon the terms and subject to the conditions set forth in this
Agreement (including, without limitation, the terms of Section 6.4(b) hereof),
the Seller and the Purchaser shall each use their respective commercially
reasonable best efforts to take, or cause to be taken, all appropriate action,
and to do, or cause to be done, and to assist and cooperate with the other party
hereto in doing, all things necessary, proper or advisable under applicable Laws
to consummate the transactions contemplated hereby, including, without
limitation: (i) obtaining all necessary Licenses, actions or nonactions,
waivers, consents, approvals, authorizations, qualifications and other orders of
any Governmental Authorities with competent jurisdiction over the transactions
contemplated hereby, (ii) obtaining all necessary consents, approvals or waivers
from third parties, (iii) defending any lawsuits or other legal proceedings,
whether judicial or administrative, challenging this Agreement or the
consummation of the transactions contemplated hereby, including, without
limitation, seeking to have vacated or reversed any stay or temporary
restraining order entered by any Governmental Authority prohibiting or otherwise
restraining the
35
consummation of the transactions contemplated hereby, and (iv) executing and
delivering any additional instruments, certificates and other documents
necessary or advisable to consummate the transactions contemplated hereby and to
fully carry out the purposes of this Agreement.
(b) Without limiting the generality of the foregoing, the Seller and
the Purchaser hereby agree to provide promptly to Governmental Authorities with
regulatory jurisdiction over enforcement of any applicable antitrust laws all
information and documents requested by any such Governmental Authorities or
necessary, proper or advisable to permit consummation of the transactions
contemplated hereby, and to file any Notification and Report Form and related
material required under the HSR Act as soon as practicable after the date
hereof. The Seller and the Purchaser shall each thereafter use its respective
commercially reasonable best efforts to complete as soon as practicable its
substantial compliance with any requests for additional information or
documentary material that may be made under the HSR Act. The Purchaser and the
Seller hereby further agree to use their respective commercially reasonable best
efforts to (i) obtain any governmental clearances required for consummation of
the transactions contemplated hereby, which shall specifically include, in the
case of the Purchaser, (A) taking any and all actions necessary or appropriate
to divest any shares of capital stock of any other Person held by the Purchaser
(or any of its Subsidiaries or Affiliates), any assets and properties of the
Purchaser (or any of its Subsidiaries or Affiliates), or any business conducted
by the Purchaser (or any of its Subsidiaries or Affiliates), and (B) consenting
to any restriction or limitation on the ability of the Purchaser (or any of its
Subsidiaries or Affiliates) to operate or exercise control over any of the
assets and properties of the Purchaser (or any of its Subsidiaries or
Affiliates) or conduct any business of the Purchaser (or any of its Subsidiaries
or Affiliates), which is necessary, in the case of any of the foregoing, to
obtain such governmental clearances, (ii) respond to any government request for
information, (iii) contest and resist any action, including any legislative,
administrative or judicial action, and have vacated, lifted, reversed or
overturned, any Governmental Order (whether temporary, preliminary or permanent)
that restricts, prevents or prohibits the consummation of the transactions
contemplated hereby, including, without limitation, by using all legal efforts
to vigorously pursue all available avenues of administrative and judicial appeal
and all available legislative action, and (iv) in the event that any permanent
or preliminary injunction or other order is entered or becomes reasonably
foreseeable to be entered in any proceeding that would make consummation of the
transactions contemplated hereby in accordance with the terms of this Agreement
unlawful or that would prohibit, prevent, delay or otherwise restrain the
consummation of the transactions contemplated hereby, to cause the relevant
Governmental Authorities to vacate, modify or suspend such injunction or order
so as to permit the consummation of the transactions contemplated hereby prior
to the Termination Date.
(c) Neither the Seller nor the Purchaser shall take any action that is
inconsistent with its respective obligations under this Agreement, or could
hinder or delay
36
or impede the consummation of the transactions contemplated by this Agreement or
the consent of the FCC to the FCC Applications.
6.5 Fulfillment of Conditions by the Seller. The Seller shall not knowingly
take or cause to be taken, or fail to take or cause to be taken, any action that
would cause the conditions to the obligations of the Seller or the Purchaser to
consummate the transactions contemplated hereby to fail to be satisfied or
fulfilled at or prior to the Closing, including, without limitation, by taking
or causing to be taken, or failing to take or cause to be taken, any action that
would cause any of the representations and warranties made by the Seller in
Article IV hereof to fail to be true and correct as of the Closing in all
material respects. The Seller shall take, or cause to be taken, all commercially
reasonable actions within its power to cause to be satisfied or fulfilled, at or
prior to the Closing, the conditions precedent to the Purchaser's obligations to
consummate the transactions contemplated hereby as set forth in Section 7.1
hereof.
6.6 Fulfillment of Conditions by the Purchaser. The Purchaser shall not
knowingly take or cause to be taken, or fail to take or cause to be taken, any
action that would cause the conditions to the obligations of the Seller or the
Purchaser to consummate the transactions contemplated hereby to fail to be
satisfied or fulfilled, including, without limitation, by taking or causing to
be taken, or failing to take or cause to be taken, any action that would cause
the representations and warranties made by the Purchaser in Article V hereof to
fail to be true and correct as of the Closing in all material respects. The
Purchaser shall take, or cause to be taken, all commercially reasonable actions
within its power to cause to be satisfied or fulfilled, at or prior to the
Closing, the conditions precedent to the obligations of the Seller to consummate
the transactions contemplated hereby as set forth in Section 7.2 hereof.
6.7 Publicity. The Seller and the Purchaser shall cooperate with each other
in the development and distribution of all news releases and other public
disclosures relating to the transactions contemplated by this Agreement. Neither
the Seller nor the Purchaser shall issue or make, or allow to have issued or
made, any press release or public announcement concerning the transactions
contemplated by this Agreement without the consent of the other party hereto,
except as otherwise required by applicable Law, but in any event only after
giving the other party hereto a reasonable opportunity to comment on such
release or announcement in advance, consistent with such applicable legal
requirements.
6.8 Transaction Costs. The Purchaser shall pay all transaction costs and
expenses (including legal, accounting and other professional fees and expenses
and other fees described in Section 5.5 hereof) that it incurs in connection
with the negotiation, execution and performance of this Agreement and the
consummation of the transactions contemplated hereby. The Seller shall pay all
transaction costs and expenses (including legal, accounting and other
professional fees and expenses and other fees described in Section 4.20 hereof)
that it incurs in connection with the negotiation, execution and performance of
this Agreement and the consummation of the transactions contemplated
37
hereby. Notwithstanding the foregoing and anything to the contrary contained in
this Agreement, the Seller and the Purchaser shall share equally (a) any
transfer Taxes (including stock transfer, sales, use and deed Taxes) or refunds
thereof and the fees and costs of recording or filing all applicable
conveyancing instruments associated with the transfer of the Purchased Assets
from the Seller to the Purchaser pursuant to this Agreement and (b) all filing
fees paid in connection with the HSR Act. The Seller and the Purchaser shall
cooperate in the preparation, execution and filing of all Tax Returns regarding
any transfer Taxes which become payable as a result of the transfer of the
Purchased Assets from the Seller to the Purchaser pursuant to this Agreement.
6.9 Employees and Employee Benefit Matters.
(a) The Purchaser shall offer employment as of the Closing Date to all
Business Employees who are actively employed (i.e., not on a paid or unpaid
leave of absence). Further, Purchaser shall immediately offer employment to any
Business Employee who is not actively employed on the Closing Date, when his or
her leave of absence has expired, if such individual is then able to return to
active employment on such date. As of the Closing Date, the Purchaser shall
employ each active Business Employee whose employment is not covered by a
collective bargaining agreement and who accepts the Purchaser's offer of
employment ("Transferred Non-Union Employees") at a base pay that is at least as
favorable as that provided by the Seller (or its Affiliates) immediately before
the execution hereof and on terms and conditions (and with employee benefits
(including without limitation benefits of the type described in section 3(1) of
ERISA)) that are at least as favorable in the aggregate as those provided to
Purchaser's similarly situated employees; provided, however, Purchaser shall be
free to modify any such base pay, terms and conditions and employee benefits
after the Closing in accordance with Purchaser's normal business practices. The
Purchaser shall provide each Transferred Non-Union Employee credit for years of
service with the Seller or any Affiliate of the Seller prior to the Closing for
(A) the purpose of eligibility and vesting under the Purchaser's health,
vacation and other employee benefit plans (including, without limitation, the
Purchaser 401(k) Plan), and (B) any and all pre-existing condition limitations
and eligibility waiting periods under group health plans of the Purchaser, and
shall cause to be credited to any deductible out-of-pocket expenses under any
health plans of the Purchaser any deductibles or out-of-pocket expenses incurred
by Transferred Non-Union Employees and their beneficiaries and dependents during
the portion of the calendar year in which the Closing occurs and prior to their
participation in the health plans of the Purchaser. Notwithstanding any other
provision of this Agreement, Business Employees that become employed by the
Purchaser as of the Closing who are covered by a collective bargaining agreement
on and after the Closing (the "Transferred Union Employees" and, collectively
with the Transferred Non-Union Employees, the "Transferred Employees") shall
receive benefits in accordance with the terms of such agreement.
(b) Effective at the Closing Date, the Purchaser shall assume the
severance arrangements set forth in Schedule 6.9(b) hereto; provided, however,
that the Purchaser
38
shall have no liability under such severance arrangements with respect to
terminations of employment occurring before the Closing.
(c) Effective on the Closing Date, the Purchaser shall assume the
Seller's obligations, duties and liabilities to provide benefits under, and the
Seller shall assign, all Benefit Plans (including all related assets and funding
vehicles) sponsored, established and maintained by the Seller solely for the
benefit of Business Employees as are set forth in Schedule 6.9(c) hereto (the
"Assumed Plans") and any other arrangement described in Section 6.1(b)(iii)
hereof that is adopted by the Seller before the Closing with the prior written
consent of the Purchaser. The Seller shall have no Liability with respect to the
Assumed Plans following the Closing Date.
(d) Effective as of the Closing Date, the Seller shall cause each
Business Employee to have a fully nonforfeitable right to such employee's
account balances, if any, under The Tax Deferred Investment Plan of The
Chronicle Publishing Company (the "Seller 401(k) Plan"). Seller shall make, or
cause to be made, all "matching contributions" due under the Seller 401(k) Plan
with respect to Business Employees through the Closing Date. Effective as of the
Closing Date, the Purchaser shall establish or shall extend coverage to each
Business Employee under a defined contribution individual account plan (the
"Purchaser 401(k) Plan") qualified pursuant to Sections 401(a) and 401(k) of the
Internal Revenue Code to the extent the Business Employee has satisfied the
requirements for participation therein.
(e) As soon as practicable after the Closing Date, the Seller shall
cause the trustee of the Seller 401(k) Plan to transfer in the form of cash (or
such other form as may be agreed upon by the Seller and the Purchaser) the full
account balances of the Business Employees in such plan, reduced by any
necessary benefit, distribution or withdrawal payments to or in respect of
Business Employees occurring during the period from the Closing Date to the date
of transfer described herein, to the appropriate trustee as designated by the
Purchaser under the trust agreement forming a part of the Purchaser 401(k) Plan.
The aggregate account balances of Business Employees under the Seller 401(k)
Plan transferred by the trustee of the Seller 401(k) Plan to the trustee of the
Purchaser 401(k) Plan shall be increased (or decreased) by the Seller by the
amount of any actual earnings (or losses) on each account included therein from
the Closing Date to the date of transfer to the Purchaser 401(k) Plan and such
earnings (or losses) shall be credited (or debited) to the appropriate accounts.
Following the transfer of account balances to the Purchaser 401(k) Plan as
described herein, neither the Seller nor the Seller 401(k) Plan and the related
trust shall have any obligation or Liability with respect to the benefits and
entitlements accrued in respect of Business Employees under the Seller 401(k)
Plan that were transferred to the Purchaser 401(k) Plan. The Seller and
Purchaser shall reasonably cooperate to effectuate the foregoing.
(f) The Seller shall cause Business Employees to be fully vested in
their accrued benefit under the Pension Plan of Chronicle Publishing Company
(the "Seller DB Plan") as of the Closing to at least the same extent that
employees of the Seller who are
39
not Business Employees become fully vested in their accrued benefits under the
Seller DB Plan in connection with, or as a result of, the sale of assets of
other divisions of the Seller with respect to which such employees primarily
render their services.
(g) The Seller shall cause the administrator of the Seller 401(k) Plan
and the Purchaser shall cause the administrator of the Purchaser 401(k) Plan, to
timely make such filings as are required under ERISA, the Internal Revenue Code
or any applicable Laws with respect to the transfer of account balances, assets
or Liabilities described in this Section 6.9, including any required filings on
Form 5310-A.
(h) Prior to the Closing Date, the Seller shall establish a plan solely
for the benefit of the Business Employees which shall be intended to satisfy the
requirements of Internal Revenue Code Section 125 (the "New Cafeteria Plan") and
which shall assume the liabilities attributable to the Business Employees (and
shall provide for the crediting of Business Employees' accounts in such amounts)
under the Chronicle Publishing Company Cafeteria Plan as of the Closing Date.
The New Cafeteria Plan shall be an Assumed Plan, as defined above.
(i) Seller agrees, if requested by Purchaser, to consent to the
designation of Purchaser (or its designee) as successor employer to the Business
for purposes of unemployment insurance payroll tax or contribution ratings and
payroll credits under sate and federal law and/or workers' compensation
contributions premium ratings under applicable state law. Seller shall provide
Purchaser (or its designee) in a timely fashion with any payroll or other
account data as may be necessary or appropriate to make application for the
transfer of Seller's ratings, payroll credits and premium ratings as an employer
subject to unemployment compensation laws and/or workers' compensation laws with
any public authority.
6.10 Interdivisional Agreements. Except as set forth in Schedule 6.10
hereto, prior to Closing, the Seller shall terminate, without any continuing
Liability to the Business resulting therefrom, all agreements between any
division of the Seller not related to the Business, on the one hand, and the
division of the Seller responsible for operating the Business, on the other
hand.
6.11 Retention and Delivery of Seller Records. From and after the Closing,
the Purchaser shall preserve, in accordance with the normal document retention
policy of the Business, all books and records transferred by the Seller to the
Purchaser pursuant to this Agreement. As soon as practicable following the
Closing, the Purchaser shall deliver to the Seller or, if so requested by the
shareholders of the Seller through the representative designated pursuant to
Section 9.8, to such representative, (a) such financial information relating to
the Business for the periods ending on or prior to the Closing Date, as has been
customarily provided to the Seller by the Stations, and (b) such financial
information relating to the Business for the periods after the Closing Date as
is customarily prepared by the Purchaser, in each case, in sufficient detail to
enable such shareholders or the Seller to prepare the Seller's financial
statements, the Final Prorations Schedule and all
40
Tax Returns of the Seller and such shareholders relating to periods ending on or
prior to the Closing Date. In addition to the foregoing, for a period of three
(3) years after the Closing (or with respect to access related to Tax matters,
from and after the Closing without limitation of time) the Purchaser shall
afford to the Seller, and the Seller shall afford to the Purchaser, as
applicable, their respective counsel, accountants and other authorized agents
and representatives, and to any shareholders of the Seller and their respective
counsel, accountants and other authorized agents and representatives, during
normal business hours and upon the execution and delivery of a confidentiality
and non-disclosure agreement in customary form and substance (which shall
include appropriate exceptions for disclosure relating to Tax Returns and other
Tax matters), reasonable access to the employees, books, records and other data
relating to the Purchased Assets, the Excluded Assets, the Assumed Liabilities
and the Excluded Liabilities in its possession with respect to periods prior to
the Closing, and the right to make copies and extracts therefrom, to the extent
that such access may be reasonably required by the requesting party (a) to
facilitate the investigation, litigation and final disposition of any claims
which may have been or may be made against any such party or Person, or its
Affiliates, (b) for the preparation of Tax Returns and audits, and (c) for any
other reasonable business purpose.
6.12 FCC Consent. The transfer of the Purchased Assets and the assignment of
the Station Licenses as contemplated by this Agreement is subject to the prior
consent of the FCC. Promptly after the execution of this Agreement and promptly
after any assignment by the Purchaser of its rights and obligations under this
Agreement as contemplated by Section 9.4, as applicable, the Purchaser and the
Seller shall proceed to prepare for filing with the FCC appropriate applications
for consent to the assignment of the Station Licenses (the "FCC Applications"),
which shall be filed with the FCC as soon as practicable but in no event later
that thirty (30) calendar days after the date hereof. The parties shall
thereafter prosecute the FCC Applications with all reasonable diligence and
otherwise use their commercially reasonable efforts to obtain such consent as
expeditiously as practicable. The Purchaser and the Seller shall share equally
all filing fees payable with respect to all filings required by the FCC in
connection with the transactions contemplated by this Agreement and made
pursuant to this Section 6.12. In the event of any assignment by the Purchaser
of its rights under this Agreement pursuant to Section 9.4 hereof, the Purchaser
and the Seller will cooperate to file with the FCC as promptly as possible any
amendments or additional or new applications required as a result of such
assignment.
6.13 Account Receivable. At the Closing, the Seller will deliver to the
Purchaser a schedule of the accounts receivable of the Business. Subject to the
terms and provisions of this Section 6.13, the Purchaser agrees to collect the
accounts receivable in the manner regularly pursued by the Purchaser with
respect to the collection of accounts receivable and in the ordinary course of
business.
(a) The Purchaser shall use commercially reasonable efforts to collect
the accounts receivable of the Seller outstanding on the Closing Date for a
period of one
41
hundred twenty (120) calendar days after the Closing. The Purchaser shall remit
all amounts so collected to an account designated by the Seller, net of
commission fees (as directed by the Seller) on a bi-monthly basis, beginning
within fifteen (15) days after the Closing until the end of such one hundred
twenty (120) calendar day period. Promptly after the expiration of the one
hundred twenty (120) day period, the Purchaser shall deliver to the Seller (i) a
statement or report showing all collections, (ii) a check or draft in an amount
equal to the aggregate amount of the collections then due to the Seller and not
previously delivered, and (iii) all records of uncollected accounts receivable
after which the Seller shall have the right to collect such uncollected accounts
receivable. In the collection of accounts receivable, all payments received by
the Purchaser from account debtors will be applied first to accounts receivable
of that account debtor arising prior to the Closing, if any, in the order of
their origination unless disputed by that account debtor. The Purchaser or the
Seller will promptly deliver to the other a true copy of any notice of a dispute
as to the validity or enforceability of an account receivable received from an
account debtor, and at the election of the Seller, the Purchaser shall
immediately remit such disputed account to the Seller for collection. The
Purchaser shall not agree to any settlement, discount, or reduction of any
account receivable without the prior written consent of the Seller. The
Purchaser's collection obligation under this Section 6.14 shall not include any
obligation to bring suit, engage a collection agent, or take any other legal
action for the collection of any account receivable. All amounts due to the
Seller under this subsection that are not paid in accordance with the provisions
hereof shall bear interest until paid at a rate per annum equal to the lesser of
(a) the generally prevailing prime interest rates (as reported by The Wall
Street Journal), plus five percentage points, or (b) the maximum amount
permitted by applicable Law. The parties acknowledge and agree that accounts
receivable collected by the Purchaser for the Seller pursuant to this Section
6.13 shall not be subject to a right of offset for any claim by the Purchaser
against the Seller; provided that, if the Purchaser takes any action in
violation of such prohibition the Purchaser's right and obligation to collect
all accounts receivable arising prior to the Closing shall immediately
terminate, and the Seller shall have the right to collect all such accounts
receivable in its sole and absolute discretion.
(b) Effective upon the Closing Date continuing only for such period as
the Purchaser has the obligation to collect the accounts receivable of the
Business pursuant to this Section 6.13, the Seller hereby irrevocably
constitutes and appoints the Purchaser, its successors and assigns, the true and
lawful attorney of the Seller with full power of substitution, in the name of
the Purchaser, or the name of the Seller, on behalf of and for the benefit of
the Purchaser (except as otherwise provided), to collect all accounts receivable
pursuant to this Section 6.13, and to endorse, without recourse, checks, notes
and other instruments in the name of the Seller pursuant to this Section 6.13.
The Seller agrees that the foregoing powers are coupled with an interest and
shall be irrevocable by the Seller directly or indirectly by the dissolution of
the Seller or in any manner or for any reason, but shall terminate as provided
in this Section 6.13(b).
6.14 Escrow Deposit. Upon the execution and delivery of this Agreement, the
Purchaser shall deposit by wire transfer of immediately available funds the sum
of Ten
42
Million Dollars ($10,000,000) (the "Escrow Deposit") in an escrow account with
AllFirst Bank (the "Escrow Agent") in accordance with an escrow agreement among
the Seller, the Purchaser and the Escrow Agent (the "Escrow Agreement") attached
hereto as Exhibit L. All funds deposited with the Escrow Agent shall be held and
disbursed in accordance with the terms of the Escrow Agreement and the following
provisions:
(a) Upon Closing, the Seller and the Purchaser shall jointly instruct
the Escrow Agent to disburse all amounts held by the Escrow Agent pursuant to
the Escrow Agreement to the Purchaser, including any interest or other proceeds
from the investment of funds held by the Escrow Agent.
(b) If this Agreement is terminated as a result of a breach by the
Purchaser, and the Seller is not in material breach of this Agreement, then the
Seller and the Purchaser shall jointly instruct the Escrow Agent to hold the
Escrow Deposit, including any interest or other proceeds from the investment of
funds held by the Escrow Agent, (i) pending the receipt of a final order of a
court of competent jurisdiction directing release in accordance with such order,
or (ii) pending resolution of any disagreements between the parties until
receipt of a second joint instruction directing the release of the Escrow
Deposit in accordance with such instruction; provided, however, that except as
set forth in Section 6.14(g) below, the parties recognize that the Escrow
Deposit does not constitute liquidated damages, that recovery of all or part of
the Escrow Deposit by the Seller shall not constitute the Seller's exclusive
remedy, and the Seller shall therefore be entitled to pursue any other remedies
that may be available to it, including recovery of the full extent of the
Seller's damages.
(c) If this Agreement is terminated as a result of a breach by the
Seller, and the Purchaser is not in material breach of this Agreement, then the
Seller and the Purchaser shall jointly instruct the Escrow Agent to deliver the
Escrow Deposit to the Purchaser, including any interest or other proceeds from
the investment of funds held by the Escrow Agent.
(d) If this Agreement is terminated jointly by the Seller and the
Purchaser, then the Seller and the Purchaser shall jointly instruct the Escrow
Agent to deliver the Escrow Deposit to the Purchaser, including any interest or
other proceeds from the investment of funds held by the Escrow Agent.
(e) If this Agreement is terminated by the Seller pursuant to Section
6.15(f) hereof, then the Seller and the Purchaser shall jointly instruct the
Escrow Agent to deliver the Escrow Deposit to the Purchaser, including any
interest or other proceeds from the investment of funds held by the Escrow
Agent.
(f) If this Agreement is terminated by the Purchaser pursuant to
Section 8.2(a) hereof, then the Seller and the Purchaser shall jointly instruct
the Escrow Agent to deliver the Escrow Deposit to the Purchaser, including any
interest or other proceeds from the investment of funds held by the Escrow
Agent.
43
(g) If Seller terminates this Agreement pursuant to Section 8.1(f) or
Section 8.1(g), then the Seller and the Purchaser shall jointly instruct the
Escrow Agent to deliver the Escrow Deposit to the Seller, including any interest
or other proceeds from the investment of funds held by the Escrow Agent and such
amount shall constitute liquidated damages (in lieu of any and all other damages
Seller may otherwise have been entitled to collect) for Purchaser's failure to
close under such circumstances.
6.15 Environmental Work.
(a) Within thirty (30) calendar days from the date hereof, the
Purchaser shall have the right, at its sole cost and expense, to engage
AquaTerra Services Corp. (the "Consultant") to conduct a Phase I Environmental
Assessment, as such term is commonly understood, with respect to the Owned Real
Property and the Leased Real Property, except that the rights granted to the
Purchaser with respect to the Leased Real Property shall be subject to any
required consent of the landlord of such Leased Real Property and provided, in
each case, such inspections and interviews shall be conducted only (i) during
regular business hours upon reasonable notice to the Seller, (ii) in a manner
which will not unduly interfere with the operation of the Business and/or the
use of, access to or egress from the Owned Real Property and the Leased Real
Property, and (iii) without damage to any property of the Seller or any property
of any lessor of Leased Real Property.
(b) If the assessment conducted in connection with Section 6.15(a)
above details a Recognized Environmental Condition (as such term is defined in
the American Society of Testing and Materials Standard for Phase I Environmental
Assessments) in connection with the Owned Real Property or the Leased Real
Property, the Consultant reasonably recommends further investigatory action with
respect to such Recognized Environmental Condition, and the Purchaser delivers
such assessment and recommendation to the Seller within thirty (30) calendar
days from the date hereof, the Purchaser shall have the right, for thirty (30)
calendar days from the date such assessment and recommendations are delivered to
the Seller, to conduct the investigation so recommended (the "Phase II
Inspection"); provided, however, the rights granted to the Purchaser with
respect to the Leased Real Property shall be subject to any required consent of
the landlord of such Leased Real Property; provided, further, the Seller shall
have the right to review and approve the work plan for any Phase II Inspection
so proposed, and provided further, such Phase II Inspection shall be conducted
only (i) during regular business hours upon reasonable notice to the Seller,
(ii) in a manner which will not unduly interfere with the operation of the
Business and/or the use of, access to or egress from the Owned Real Property and
the Leased Real Property, and (iii) without material damage to any property of
the Seller or any property of any lessor of Leased Real Property; provided,
however, that any such damage shall be promptly repaired by the Purchaser.
(c) If, as a result of the Phase II Inspection, the Purchaser
identifies a Recognized Environmental Condition that Seller is required to
remediate under
44
applicable Environmental Law, the Cash Payment shall be reduced by the estimated
amount of all costs and expenses of cleanup, removal, remedial, corrective or
responsive action necessary to address such Recognized Environmental Condition
("Environmental Work") as reasonably determined by the Consultant (which
estimate shall set forth reasonable detail on the basis for those estimates);
provided, however, the Environmental Work shall be designed to meet the least
stringent standards or requirements that the Seller is required to meet so as
not to be a violation under applicable Environmental Law (taking into account
the zoning of the applicable Owned Real Property or Leased Real Property and the
current uses of resources thereon), provided further, any reduction of the Cash
Payment pursuant to this Section 6.15(c) shall be limited to the amount by which
the costs and expenses of the Environmental Work exceed One Hundred Thousand
Dollars ($100,000); provided, further, if parties other than the Seller are
required to participate in any Environmental Work, any reduction of the Cash
Payment pursuant to this Section 6.15(c) shall be limited to the amount of the
costs and expenses of Environmental Work reasonably allocable to the Seller.
(d) If the Seller and the Purchaser disagree as to the estimated costs,
expenses or required extent of the Environmental Work as provided by the
Consultant, the Seller shall notify the Purchaser of such disagreement in
writing specifying in detail the particulars of such disagreement within twenty
(20) Business Days after the Seller's receipt of the results of the Phase II
Inspection pursuant to Section 6.15(c) above. The Purchaser shall provide the
Seller full access to the assessment and/or inspection results (and all related
records) that are the causes of such disagreement.
(e) The Seller and the Purchaser shall use their commercially
reasonable efforts for a period of thirty (30) calendar days after the Seller's
delivery of the notice referred to in Section 6.15(d) above to resolve any
disagreements raised by the Seller with respect to the extent of the
Environmental Work. If, at the end of such period, the Seller and the Purchaser
are unable to resolve all such disagreements, Dames & Xxxxx (the "Environmental
Auditor") shall determine the costs, expenses and extent of the Environmental
Work that it deems to be required. The determination of the Environmental
Auditor shall be final, binding and conclusive on the parties. The Seller and
the Purchaser shall use their commercially reasonable efforts to cause the
Environmental Auditor to make its determination within thirty (30) calendar days
of receipt of the parties' request for a determination. The fees and expenses of
the Environmental Auditor shall be shared equally between the Seller and the
Purchaser.
(f) Notwithstanding anything to the contrary contained herein, if the
estimated costs and expenses of the Environmental Work as determined by the
Consultant or the Environmental Auditor, as applicable, exceed One Million
Dollars ($1,000,000), the Seller shall have the right, in its sole and absolute
discretion, to terminate this Agreement, subject to Section 6.15(g) below. If
the Seller makes this election the parties, subject to Section 6.15(g) below,
shall have no liability or further obligation to the other under this Agreement
except as provided in Section 8.2.
45
(g) If the Seller elects to terminate this Agreement under Section
6.15(f) above, the Purchaser shall have the right, in its sole and absolute
discretion, to accept a reduction of the Cash Payment pursuant to Section
6.15(c) of Nine Hundred Thousand Dollars ($900,000) and proceed with the
Closing.
(h) The parties understand and agree that the procedures outlined in
this Section 6.15 shall in no event delay the Closing beyond the date on which
the Closing would occur but for such procedures.
6.16 Payment of Taxes. Seller shall file all Tax Returns, other than those
relating to Income Taxes, with respect to the Business required to be filed by
it after the date hereof and prior to the Closing and shall pay all Taxes shown
to be due thereon.
6.17 Financing. Within sixty (60) days of the date hereof, the Purchaser
shall deliver to the Seller, evidence, reasonably acceptable to the Seller, of
the Purchaser's financial ability to pay the Cash Payment (minus the amount of
the Escrow Deposit) and make all other payments of fees and expenses in
connection with the transactions contemplated by this Agreement required to be
paid by the Purchaser, it being understood that such evidence shall include one
or more of (a) availability under the Purchaser's existing credit facility or a
binding written commitment letter from another financing source reasonably
acceptable to the Seller (the "Lender") containing the Lender's commitment to
provide financing, (b) the Purchaser's cash on hand (which shall be reflected in
the most recent balance sheet of the Purchaser at the time of the delivery
pursuant to this Section 6.17), or (c) a binding agreement between the Purchaser
and a qualified third party providing for the sale of one or more television
stations now owned by Purchaser to such third party.
ARTICLE VII.
CLOSING CONDITIONS
7.1 Conditions to Obligations of the Purchaser. The obligations of the
Purchaser to consummate the transactions contemplated by this Agreement are
subject to the satisfaction or fulfillment at or prior to the Closing of the
following conditions, any of which may be waived in whole or in part by the
Purchaser in writing:
(a) All representations and warranties of the Seller contained in this
Agreement shall be true and correct in all material respects at and as of the
Closing with the same effect as though such representations and warranties were
made at and as of the Closing (other than any representation or warranty that is
expressly made as of a specified date, which shall be true and correct in all
material respects as of such specified date only).
(b) The Seller shall have performed and complied in all material
respects with all the covenants and agreements required by this Agreement to be
performed or complied with by it at or prior to the Closing.
46
(c) All applicable waiting periods (and any extensions thereof) under
the HSR Act shall have expired or otherwise been terminated.
(d) There shall be in effect no Law or injunction issued by a court of
competent jurisdiction making illegal or otherwise prohibiting or restraining
the consummation of the transactions contemplated by this Agreement.
(e) The Seller shall have delivered to the Purchaser all of the
certificates, instruments and other documents required to be delivered by the
Seller at or prior to the Closing pursuant to Section 3.2 hereof.
(f) The FCC shall have granted its consent to the FCC Applications.
(g) All required consents to the assignment of the Primary Television
Affiliation Agreement dated December 20, 1996, between the Seller and American
Broadcasting Companies, Inc., as amended, with respect to television station
KAKE-TV shall have been obtained.
(h) The Seller shall be the holder of the Station Licenses and all
other material government licenses, permits and other authorizations listed on
Schedule 4.21, and there shall not have been any modification of any of such
licenses, permits and other authorizations which has a Material Adverse Effect.
No proceeding shall be pending (other than rule making proceedings of general
applicability to the television broadcast industry, applications at the FCC that
propose to make changes to broadcast facilities other than the Stations in the
markets where the Stations are located or any application that could result in
the addition of video services in those markets or could have an impact on the
broadcast signal of the any of the Stations) which seeks or the effect of which
could be to revoke, cancel, fail to renew, suspend or modify adversely in a
material way the Station Licenses or any other material government licenses,
permits or other authorizations.
7.2 Conditions to Obligations of the Seller. The obligations of the Seller
to consummate the transactions contemplated by this Agreement are subject to the
satisfaction or fulfillment at or prior to the Closing of the following
conditions, any of which may be waived in whole or in part by the Seller in
writing:
(a) All representations and warranties of the Purchaser contained in
this Agreement shall be true and correct in all material respects at and as of
the Closing with the same effect as though such representations and warranties
were made at and as of the Closing (other than any representation or warranty
that is expressly made as of a specified date, which shall be true and correct
in all material respects as of such specified date only).
(b) The Purchaser shall have performed and complied in all material
respects with the covenants and agreements required by this Agreement to be
performed or complied with by it at or prior to the Closing.
47
(c) All applicable waiting periods (and any extensions thereof) under
the HSR Act shall have expired or otherwise been terminated.
(d) There shall be in effect no Law or injunction issued by a court of
competent jurisdiction making illegal or otherwise prohibiting or restraining
the consummation of the transactions contemplated by this Agreement.
(e) The Purchaser shall have delivered to the Seller the Cash Payment
and all of the certificates, instruments and other documents required to be
delivered by the Purchaser at or prior to the Closing pursuant to Section 3.3
hereof.
(f) The FCC shall have granted its consent to the FCC Applications.
ARTICLE VIII.
TERMINATION; RISK OF LOSS
8.1 Termination. This Agreement and the transactions contemplated hereby
may be terminated and abandoned:
(a) by either the Seller or the Purchaser at any time prior to the
Closing with the mutual written consent of the other party hereto;
(b) unless the Closing has not occurred as a result of a breach of this
Agreement by the party seeking such termination, by either the Seller or the
Purchaser if the Closing has not occurred on or prior to 5:00 p.m. (California
time) on the date which is one (1) year following the date of this Agreement
(the "Termination Date");
(c) by either the Seller or the Purchaser if any Governmental Authority
with jurisdiction over such matters shall have issued a final and nonappealable
Governmental Order permanently restraining, enjoining or otherwise prohibiting
the consummation of the transactions contemplated by this Agreement; provided,
however, that neither the Seller nor the Purchaser may terminate this Agreement
pursuant to this Section 8.1(c) unless the party seeking to so terminate this
Agreement is not in default hereunder and has used all commercially reasonable
efforts to oppose any such Governmental Order or to have such Governmental Order
vacated or made inapplicable to the transactions contemplated by this Agreement;
(d) by either the Seller or the Purchaser if the FCC has not granted
its consent to the FCC Applications within 270 days after the parties file the
FCC Applications; provided, however, that neither party hereto may terminate
this Agreement if such party is in default hereunder, or if a delay in any
decision or determinations by the FCC respecting the FCC Applications has been
caused or materially contributed to by any failure on the part of such party to
furnish, file or make available information within its control or caused by the
willful furnishing by such party of incorrect, inaccurate or incomplete
information to the FCC, or caused by any action taken by such party for the
purposes of delaying any decision or determination respecting the FCC
Applications;
48
(e) by either the Seller or the Purchaser if, for any reason, any of
the FCC Applications is designated for hearing by the FCC; provided, however,
that the party giving such notice is not then in material default under this
Agreement and has not caused such designation for hearing by virtue of its
misrepresentations in this Agreement or in any Assignment Application or its
willful and knowing violation of the FCC's rules or policies;
(f) by Seller if Purchaser fails to fulfill its obligations under
Section 6.17; provided, however, that Seller is not then in material default of
its obligations under this Agreement and that Seller gives notice of such
termination on or before fifteen (15) days after the date the obligations under
Section 6.17 were required to be fulfilled ; or
(g) by Seller if all of the conditions to the obligations of the
parties to close set forth in Article VII have been either satisfied or waived
on or before the XXXX Target Closing Date and the Closing does not occur on or
before the XXXX Target Closing Date; provided, however, that Seller gives notice
of such termination on or before fifteen (15) days after the XXXX Target Closing
Date.
(h) Effect of Termination. If this Agreement is terminated pursuant to
this Section 8.1, this Agreement shall become null and void and neither party
hereto shall have any further liability hereunder except that (a) the provisions
of Section 6.7, Section 6.8, those portions of Section 6.14 relating to the
disposition of the Escrow Deposit in the event the Agreement is terminated
pursuant to such Section, and Article VIII generally shall remain in full force
and effect, and (b) each party hereto shall remain liable to each other party
hereto for any willful breach of its obligations under this Agreement prior to
such termination.
8.2 Risk of Loss. Except to the extent of any loss or damage caused by acts
or omissions of the Purchaser, its agents, employees, or other persons while
acting pursuant to a contract with the Purchaser, the risk of loss or damage to
the Purchased Assets shall be upon the Seller at all times prior to the Closing.
In the event of loss or damage except to the extent caused by acts or omissions
of the Purchaser, its agents, employees, or other persons while acting pursuant
to a contract with the Purchaser, the Seller shall promptly notify the Purchaser
thereof and shall use commercially reasonable efforts to repair, replace and
restore the lost or damaged property to its former condition as soon as
possible. If such repair, replacement and restoration of damage not caused by
the Purchaser, its agents, employees, or other persons while acting pursuant to
a contract with the Purchaser has not been completed prior to the Closing Date,
the Purchaser may, at its option:
(a) elect to terminate this Agreement, but only if the failure to
repair, replace and restore the lost or damaged property relates to a material
portion of the Purchased Assets and continues for a period in excess of sixty
(60) calendar days after the Closing Date without consideration of this Section
8.2;
49
(b) elect to consummate the transactions contemplated by this Agreement
on the Closing Date in which event the Seller shall pay to the Purchaser the
amount necessary to restore the lost or damaged property to its former condition
and against such obligation shall assign to the Purchaser all of the Seller's
rights under any applicable insurance policies; or
(c) elect to postpone the Closing Date, with prior consent of the FCC
if necessary, which consent both parties will use commercially reasonable
efforts to obtain, until a date within fifteen (15) Business Days after the
Seller gives written notice to the Purchaser of completion of the repair,
replacement and restoration of such lost or damaged property. If, after the
expiration of that extension period, the lost or damaged property has not been
adequately repaired, replaced or a restored, Purchaser may terminate this
Agreement, and the parties shall be released and discharged from any further
obligation hereunder.
8.3 Failure of Broadcast Transmission. Seller shall give prompt written
notice to the Purchaser if either of the following (a "Specified Event") shall
occur: (a) the regular broadcast transmissions of any of the Stations in the
normal and usual manner are interrupted or discontinued; or (b) any of the
Stations are operated at less than their licensed antenna height above average
terrain or at less than ninety percent (90%) of their licensed effective
radiated power. If any Specified Event persists for more than seventy-two (72)
consecutive hours or one hundred twenty (120) non-consecutive hours (or, in the
event of force majeure or utility failure affecting generally the market served
by the applicable Station, ninety-six (96) consecutive hours or three hundred
thirty-six (336) non-consecutive hours) during any period of thirty (30)
consecutive calendar days, then the Purchaser may, at its option: (x) terminate
this Agreement by written notice given to the Seller not more than ten (10)
calendar days after the expiration of such thirty (30) calendar day period, or
(y) proceed in the manner set forth in Section 8.4. In the event of termination
of this Agreement by the Purchaser pursuant to this Section 8.3, the parties
shall be released and discharged from any further obligation hereunder.
8.4 Resolution of Disagreements. If the parties are unable to agree upon
the extent of any loss or damage, the cost to repair, replace or restore any
lost or damaged property, the adequacy of any repair, replacement, or
restoration of any lost or damaged property, or any other matter arising under
Section 8.3, the disagreement shall be referred to a qualified consulting
communications engineer mutually acceptable to the Seller and the Purchaser who
is a member of the Association of Federal Communications Consulting Engineers,
whose decision shall be final, binding upon and non-appealable by the parties,
and whose fees and expenses shall be shared equally by the Seller and the
Purchaser.
ARTICLE IX.
MISCELLANEOUS
9.1 Survival. None of the representations and warranties of the Seller and
the Purchaser contained in this Agreement, or in any certificate, instrument or
other
50
document delivered by the Seller or the Purchaser pursuant to this Agreement or
in connection with the transactions contemplated hereby, shall survive the
Closing. None of the covenants and agreements of the Seller and the Purchaser
contained in this Agreement, or in any certificate, instrument or other document
delivered by the Seller or the Purchaser pursuant to this Agreement or in
connection with the transactions contemplated hereby, shall survive the Closing,
except to the extent such covenants and agreements by their terms contemplate
performance after the Closing and except that the covenants of the Seller
contained in Subsections 6.1(b)(vi), (vii), (viii), (ix), (xii), (xiii), (xiv),
(xvii), and (xviii) shall survive for a period of three (3) months after the
Closing Date.. No claim shall be made or action brought by any party hereto
after the Closing (i) for the breach of, or inaccuracy in, any representation or
warranties contained in this Agreement, or in any certificate, instrument or
other document delivered pursuant to this Agreement or in connection with the
transactions contemplated hereby, or (ii) for the breach of any covenant or
agreement contained in this Agreement, or in any certificate, instrument or
other document delivered pursuant to this Agreement or in connection with the
transactions contemplated hereby, except with respect to (x) those covenants set
forth in Subsections 6.1(b)(vi), (vii), (viii), (ix), (xii), (xiii), (xiv),
(xvii), and (xviii), to the extent a claim is made within three (3) months after
the Closing Date and (y) those agreements that by their terms contemplate
performance after the Closing, including, but not limited to, the covenants and
agreements set forth in Sections 2.3(b), 2.3(c), 2.4, 2.5, 6.3, 6.7, 6.8, 6.9,
6.10, 6.11 and 6.13 hereof, Article VIII hereof and in this Article IX.
9.2 Notices. All notices that are required or may be given pursuant to this
Agreement must be in writing and delivered personally, by a recognized courier
service, by a recognized overnight delivery service, by telecopy or by
registered or certified mail, postage prepaid, to the parties at the following
addresses (or to the attention of such other person or such other address as any
party may provide to the other parties by notice in accordance with this Section
9.2):
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if to the Purchaser, to: with copies to:
------------------------ ---------------
Benedek Broadcasting Corporation Shack & Xxxxxx, P.C.
000 Xxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attention: K. Xxxxx Xxxxx Attention: Xxxx X. Xxxxxxx, Esq.
if to the Seller, to: with copies to:
--------------------- ---------------
The Chronicle Publishing Company Xxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx 000 Xxxxxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Xxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attention: W. Xxxxxx Xxxxxx Attention: Xxxxx X. Xxxxxx
Xxxxxxxx Xxxxxxxxx
and, with regard to matters relating
------------------------------------
to Taxes, to:
-------------
Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Any such notice or other communication will be deemed to have been given and
received (whether actually received or not) on the day it is personally
delivered or delivered by courier or overnight delivery service or sent by
telecopy (receipt confirmed) or, if mailed, when actually received.
9.3 Attorneys' Fees and Costs. If attorneys' fees or other costs are
incurred to secure performance of any obligations hereunder, or to establish
damages for the breach thereof or to obtain any other appropriate relief,
whether by way of prosecution or defense, the prevailing party will be entitled
to recover reasonable attorneys' fees and costs incurred in connection
therewith.
9.4 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned or delegated by the Seller or the
Purchaser without the prior written consent of the other party and any purported
assignment or delegation in violation hereof shall be null and void.
Notwithstanding the foregoing, (a) the Seller may assign its obligations under
this Agreement to another entity which succeeds to all or substantially all of
the Seller's assets and properties for purposes of handling any dissolution or
liquidation of the Seller, and (b) the Purchaser may elect to effect the
transfer and
52
conveyance of the Purchased Assets as part of an exchange under Section 1031 of
the Internal Revenue Code, and in connection therewith, the Purchaser may assign
all of its rights and obligations under this Agreement, provided that doing so
does not delay Closing beyond the date on which the Closing would occur but for
such election or cause the Seller to incur any expense that the Seller would not
have incurred but for such election. If the Purchaser so elects, it shall
provide notice to the Seller of its election. Notwithstanding the foregoing, an
election by the Purchaser pursuant to this Section 9.4 shall not relieve the
Purchaser of any of its obligations under this Agreement.
9.5 Amendments and Waiver. This Agreement may not be modified or amended
except in writing signed by the party against whom enforcement is sought. The
terms of this Agreement may be waived only by a written instrument signed by the
party waiving compliance. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise provided. No delay on the part of any party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder. Unless otherwise provided, the rights and
remedies herein provided are cumulative and are not exclusive of any rights or
remedies which the parties hereto may otherwise have at law or in equity.
Whenever this Agreement requires or permits consent by or on behalf of a party,
such consent shall be given in writing in a manner consistent with the
requirements for a waiver of compliance as set forth in this Section 9.5.
9.6 Entire Agreement. This Agreement, the Confidentiality Agreement and the
related documents contained as Exhibits and Schedules hereto or expressly
contemplated hereby (including the Seller Documents) contain the entire
understanding of the parties relating to the subject matter hereof and supersede
all prior written or oral and all contemporaneous oral agreements and
understandings relating to the subject matter hereof. The Exhibits and Schedules
to this Agreement are hereby incorporated by reference into and made a part of
this Agreement for all purposes.
9.7 Representations and Warranties Complete. The representations,
warranties, covenants and agreements set forth in this Agreement and the
Confidentiality Agreement constitute all the representations, warranties,
covenants and agreements of the parties hereto and their respective
shareholders, directors, officers, employees, Affiliates, advisors (including
financial, legal and accounting), agents and representatives and upon which the
parties have relied.
9.8 Third Party Beneficiaries. Except as set forth below in this Section
9.8, this Agreement is made for sole for the benefit of the parties hereto and
nothing contained herein, express or implied, is intended to or shall confer
upon any other Person any third party beneficiary right or any other legal or
equitable rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement. Notwithstanding the foregoing
53
or anything to the contrary contained in this Agreement, the parties hereto
acknowledge and agree that the shareholders of the Seller are the only third
party beneficiaries of the benefits under this Agreement that inure to the
Seller following the Closing, and, as a result, a representative of the
shareholders to be designated from time to time by the Seller or the previously
designated shareholder representative in writing shall be entitled to enforce
any of the shareholders' third party beneficiary rights following the Closing
for so long as any such rights remain in effect pursuant to the terms of this
Agreement.
9.9 Governing Law. This Agreement will be governed by and construed and
interpreted in accordance with the substantive laws of the State of California,
without giving effect to any conflicts of law rule or principle that might
require the application of the laws of another jurisdiction.
9.10 Neutral Construction. The parties to this Agreement agree that this
Agreement was negotiated fairly between them at arms' length and that the final
terms of this Agreement are the product of the parties' negotiations. Each party
represents and warrants that it has sought and received legal counsel of its own
choosing with regard to the contents of this Agreement and the rights and
obligations affected hereby. The parties agree that this Agreement shall be
deemed to have been jointly and equally drafted by them, and that the provisions
of this Agreement therefore should not be construed against a party or parties
on the grounds that the party or parties drafted or was more responsible for
drafting the provision(s).
9.11 Severability. In the event that any one or more of the provisions or
parts of a provision contained in this Agreement shall for any reason be held to
be invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or part of a provision of this Agreement or any other jurisdiction, but this
Agreement shall be reformed and construed in any such jurisdiction as if such
invalid or illegal or unenforceable provision or part of a provision had never
been contained herein and such provision or part shall be reformed so that it
would be valid, legal and enforceable to the maximum extent permitted in such
jurisdiction.
9.12 Bulk Sales Laws. The parties hereby waive compliance with the Bulk
Sales Laws of any State in which the Purchased Assets are located or in which
operations relating to the Business are conducted.
9.13 Headings; Interpretation; Schedules and Exhibits. The descriptive
headings of the several Articles and Sections of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement. References to
Sections or Articles, unless otherwise indicated, are references to Sections and
Articles of this Agreement. The word "including" means including without
limitation. Words (including defined terms) in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to
include the other gender as the context requires. The terms "hereof," "herein"
and "herewith" and words of similar import shall, unless otherwise stated, be
construed to
54
refer to this Agreement as a whole (including all of the Schedules and Exhibits
hereto) and not to any particular provision of this Agreement unless otherwise
specified. It is understood and agreed that neither the specifications of any
dollar amount in this Agreement nor the inclusion of any specific item in the
Schedules or Exhibits is intended to imply that such amounts or higher or lower
amounts, or the items so included or other items, are or are not material, and
neither party shall use the fact of setting of such amounts or the fact of the
inclusion of such item in the Schedules or Exhibits in any dispute or
controversy between the parties as to whether any obligation, item or matter is
or is not material for purposes hereof.
9.14 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (II) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT MAKES SUCH WAIVER
VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.14.
9.15 Liability for Breaches of Certain Covenants. The Seller shall be liable
to the Purchaser for damages to the Purchaser resulting from the breach by the
Seller of Subsections 6.1(b)(vi), (vii), (viii), (ix), (xii), (xiii), (xiv),
(xvii), and (xviii) only to the extent that the aggregate damages to the
Purchaser resulting from all such breaches exceeds One Hundred Thousand Dollars
($100,000), at which time the Purchaser shall be entitled to recover for all of
the damages suffered by the Purchaser. The Seller shall not be liable to the
Purchaser for damages to the Purchaser resulting from the breach by the Seller
of Subsections 6.1(b)(vi), (vii), (viii), (ix), (xii), (xiii), (xiv), (xvii),
and (xviii) in an aggregate amount in excess of Three Million Dollars
($3,000,000). The Purchaser shall not make any claim against the Seller for
damages to the Purchaser resulting from the breach by the Seller of Subsections
6.1(b)(vi), (vii), (viii), (ix), (xii), (xiii), (xiv), (xvii), and (xviii) which
individually does not exceed Fifteen Thousand Dollars ($15,000). The amount of
all such damages shall be reduced by (a) any tax benefit or deduction allowable
as a result of the incurrance of such damages or the facts or circumstances
giving rise thereto, and (b) any contributions or similar payments recovered
from any third party as a result of the incurrence of such damages or the facts
or circumstances
55
giving rise thereto, provided that, the Purchaser shall reimburse the Seller for
the amount of any such contributions or similar payments when they are
recovered.
56
9.16 Counterparts. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, each of which shall be
deemed an original and all of which together will constitute one and the same
instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer as of the date first above written.
THE CHRONICLE PUBLISHING
COMPANY
By: /s/ W. Xxxxxx Xxxxxx
------------------------------------
Name: W. Xxxxxx Xxxxxx
Title: Secretary
BENEDEK BROADCASTING
CORPORATION
By: /s/ A. Xxxxxxx Xxxxxxx
------------------------------------
Name: A. Xxxxxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer
58
