Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of September 7, 2000, by and among WMUR-TV, Inc., a New Hampshire
corporation (the "Seller"), and Hearst-Argyle Properties, Inc., a Delaware
corporation (the "Purchaser") and Hearst-Argyle Television, Inc., a Delaware
corporation (the "Guarantor").
W I T N E S S E T H:
WHEREAS, the Seller owns certain assets which it uses to conduct the
business and operations of television station WMUR-TV, Manchester, New Hampshire
(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 primarily 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 Guarantor desires to unconditionally guarantee any and all
obligations and liabilities of Purchaser, or Purchaser's assignees, under this
Agreement, as an inducement to the Seller to enter into this Agreement.
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 are
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 New York, New York 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 Guarantor, dated as of November 17, 1999.
(f) "Contract" means any legally binding 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), wetlands, public or employee health or
safety or any other environmental matter, including, without limitation, the
following laws as in effect as the Closing Date: (i) Clean Air Act (42 U.S.C.
Section 7401, et seq.); (ii) Clean Water Act (33 U.S.C. Section 1251, et seq.);
(iii) Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.);
(iv) Comprehensive Environmental Resource Compensation and Liability Act (42
U.S.C. Section 9601, et seq.); (v) Safe Drinking Water Act (42 U.S.C. Section
300f, et seq.); (vi) Toxic Substances Control Act (15 U.S.C. Section 2601, et
seq.); (vii) Rivers and Harbors Act (33 U.S.C. Section 401, et seq.); (viii)
Endangered Species Act (16 U.S.C. Section 1531, et seq.); (ix) Occupational
Safety and Health Act (29 U.S.C. Section 651, et seq.); (x) Hazardous Material
Transportation Act (49 U.S.C. Section 1801, et. seq.); (xi) any similar or
applicable environmental State Laws; and (xii) 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.
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(j) "FCC" means the United States Federal Communications
Commission, and any successor agency thereto.
(k) "Final Order" means a written action or order issued by the
FCC, setting forth the FCC Consent and which has not been reversed, stayed,
enjoined, set aside, annulled or suspended, and with respect to which no
requests have been filed for administrative or judicial review, reconsideration,
appeal or stay and the periods provided by statute or FCC regulations for filing
of any such requests for administrative or judicial review, reconsideration,
appeal or stay or for the FCC to set aside the action on its own motion have
expired.
(l) "GAAP" means generally accepted accounting principles in
the United States.
(m) "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.
(n) "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.
(o) "Hazardous Material" means any radioactive, toxic,
hazardous, or dangerous material or substance that is prohibited or regulated by
any Environmental Law or that has been designated by any Governmental Authority
to be radioactive, toxic, hazardous or otherwise a danger to health,
reproduction or the environment, including but not limited to asbestos,
petroleum, radon gas, radioactive matter, PCBs, oils, hydrocarbons, photographic
chemicals and products and other pollutants and contaminants.
(p) "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.
(q) "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.
(r) "Income Tax" means any federal, state, county or local
income, franchise, business profits or other similar Tax measured by net income,
any withholding or estimated Tax related thereto, any interest and penalties
(civil or criminal) thereon or additions thereto.
(s) "Intellectual Property" means (i) any United States and
foreign patents, patent applications, patent disclosures and improvements
thereto, (ii) United
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States and foreign trademarks, service marks, trade dress, logos, trade names,
domain names, databases 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.
(t) "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, any successor statute thereto, and the rules and regulations
promulgated thereunder.
(u) "IRS" means the United States Internal Revenue Service, and
any successor agency thereto.
(v) "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 Xxxxx X. Xxxx, Xxxxxxx X. Xxxxxxx, Xxxxx
Xxxxxx or Xxxxxx Xxxxxxxxxxxx have actual knowledge of such matter without
obligation of inquiry.
(w) "Law" means any federal, state, county, provincial, local
or foreign statute, law, ordinance, regulation, rule, code or rule of common
law.
(x) "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.
(y) "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.
(z) "Material Adverse Effect" means any change or effect that
is materially adverse to the assets, properties, operations, business, financial
or other condition and/or results of operations of the Business, taken as a
whole, except 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, (iii)
regulatory changes, or (iv) 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.
(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 business and are for amounts not yet due or that are being
contested in good faith through appropriate proceedings, in each case with
respect to which adequate reserves or other appropriate provisions have been
made by Seller and which are reflected in the Financial Statements, (ii)
statutory Encumbrances for Taxes and other Liabilities not yet due and payable
or that are being contested in good faith through appropriate proceedings, in
each
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case with respect to which adequate reserves or other appropriate provisions
have been made by Seller and which are reflected in the Financial Statements,
(iii) Encumbrances reflected on the Latest Balance Sheet and (iv) 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 materially
restrict the continued use and operation of such Owned Real Property for the
same uses and operations consistent with past practice, or grant any third party
any option or right to acquire, lease or occupy a material portion thereof, (A)
easements, rights of way and other similar restrictions of record 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 to broadcast programming on the Station.
(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, databases, 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), and
(v) licenses granting any rights with respect to any of the foregoing.
(ee) "Purchaser Documents" means, collectively, the (i) the
Xxxx of Sale, (ii) the Assignment and Assumption, (iii) the Assignment of
Proprietary Rights, (iv) the Assignment of Station Licenses, and (v) the
Post-Closing Escrow Agreement.
(ff) "Seller Documents" means, collectively, the (i) the
Warranty Deed(s), (ii) the Xxxx of Sale, (iii) the Assignment and Assumption,
(iv) the Assignment of Proprietary Rights, (v) the Assignment of Station
Licenses, and (vi) the Post-Closing Escrow Agreement.
(gg) "Station" means television station WMUR-TV, Manchester,
New Hampshire.
(hh) "Subsidiary" means (unless otherwise indicated), with
respect to a Person, any other Person (i) in which such Person has a direct or
indirect equity or other ownership interest in excess of fifty percent (50%), or
(ii) with respect to such Person, has the ability to elect or nominate a
majority of the board of directors or similar governing body of such Person.
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(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 the Station 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:
Term Section
---- -------
Accounts Receivable 4.12(c)
Agreement Preamble
Asset Purchase Recitals
Assignment and Assumption 3.2(a)
Assignment of Proprietary Rights 3.2(a)
Assignment of Station Licenses 3.2(a)
Assumed Liabilities 2.2(b)
Barter Agreements 4.7(a)
Benefit Plan(s) 4.10(a)
Xxxx of Sale 3.2(a)
Business Recitals
Business Contract(s) 2.1(b)
Business Employee(s) 4.9
Business Insurance Policies 4.17(a)
Business License(s) 2.1(b)
Cash Payment 2.3(a)
Closing 3.1
Closing Date 3.1
Closing Working Capital 2.3(b)
Consultant 6.13(a)
Environmental Auditor 6.13(f)
Environmental Termination Notice 6.13(g)
Environmental Violation 6.13(b)
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Term Section
---- -------
Environmental Work 6.13(b)
Environmental Work Cost Limit 6.13(g)
Escrow Agent 3.3(a)
Estimated Statement of Working Capital 2.3(b)
Excluded Assets 2.1(c)
Excluded Liabilities 2.2(c)
FCC Applications 6.12
FCC Consent 6.12
Final Statement of Working Capital 2.3(b)
Financial Statements 4.12(a)
HSR Termination Notice 8.1(g)
HSR Termination Rescission Notice 8.1(g)
HSR Trigger Date 8.1(g)
Indemnification Threshold Amount 8.4(c)
Independent Accountant 2.3(b)
Latest Balance Sheet 4.12(a)
Latest Balance Sheet Date 4.12(a)
Lease(s) 4.5(a)
Leased Assets 4.5(a)
Leased Real Property 4.5(a)
Liquidated Damages 8.3(b)
Loss(es) 8.4(a)
Material Business Contract(s) 4.7(a)
Notice of Disagreement 2.3(b)
Owned Real Property 4.5(a)
Phase I 6.13(a)
Phase II Inspection 6.13(c)
Post-Closing Escrow 3.3(a)
Post-Closing Escrow Agreement 3.3(a)
Purchase Price 2.3(a)
Purchased Assets 2.1(b)
Purchaser Preamble
Purchaser Benefit Plan 6.9(a)
Purchaser Claim 8.4(a)
Purchaser Cure Period 8.1(c)
Purchaser Indemnified Party 8.4(a)
Related Party Agreements 4.7(a)
Seller Preamble
Seller Articles of Incorporation 4.1
Seller Bylaws 4.1
Seller Claim 8.4(b)
Seller Cure Period 8.1(b)
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Term Section
---- -------
Seller Indemnified Party 8.4(b)
Short Term Agreement 4.7(a)
Station Licenses 2.1(b)
Termination Date 8.1(d)
Transferred Employees 6.9(a)
Warranty Deeds 3.2(a)
Working Capital 2.3(b)
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 reflected on the Financial
Statements or 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, antennae, 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, transmitters, antennas, spare parts,
inventories of any kind or nature, office materials and supplies, manufactured
and purchased goods, all accounts, notes and other receivables, all prepaid
assets and expenses, and all books, records, employment records (except to the
extent prohibited by law or regulation), production records, filings with the
FCC, ledgers, files, documents, correspondence, customer, supplier, advertiser,
circulation 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:
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(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 Schedule 4.7(a) hereto), and all rights
thereunder;
(iii) Licenses owned or possessed by the Seller used
or necessary for the conduct of the Business other than the Station Licenses
(each, a "Business License" and, collectively, the "Business Licenses");
(iv) any and all refunds of Taxes relating to the
operation of the Business on or after the Closing Date, other than refunds of
Income Taxes that relate to the sale of the Purchased Assets;
(v) 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 that relate to the sale of the
Purchased Assets) relating to the Purchased Assets or the Assumed Liabilities;
(vi) all licenses, permits, permissions and other
authorizations issued by the FCC and other governmental agencies for the
operation of the Station, including, but not limited to those listed on Schedule
4.19 hereto, and Seller's rights in and to the call letters WMUR-TV (the
"Station Licenses");
(vii) all rights of 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 Purchaser;
(viii) all prepaid expenses, accounts receivable,
advances and deposits which relate to the business and operation of the Station,
including prepaid film and programming expenses (it being understood that the
Purchase Price includes payment for the contracts and commitments of Seller
relating to film and programming and that no further payment to 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
(ix) those other assets, properties and rights
described on Schedule 4.5(a) annexed hereto and made a part hereof.
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(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"):
(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) rights in or to all Benefit Plans and all
assets associated with or allocated to employees of the Seller other than
Business Employees thereunder and that are not used in the Business;
(iv) any and all refunds of Taxes relating to the
operations of the Business prior to the Closing Date and refunds of Income Taxes
that relate to the sale of the Purchased Assets;
(v) 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 Income Taxes that relate to
the sale of the Purchased Assets) relating to the Excluded Assets or the
Excluded Liabilities;
(vi) 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 4.17 hereto) with respect to actions taken or payments made
prior to the Closing;
(vii) 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
(viii) those assets identified on Schedule 2.1(c)
hereto.
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).
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(b) Definition of Assumed Liabilities. For all purposes of and
under this Agreement, the term "Assumed Liabilities" shall mean and refer to all
Liabilities of the Seller set forth below, to the extent that such Liabilities
exist on the Closing Date and arose primarily out of 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) arising and to be performed on and after the
Closing Date;
(ii) Liabilities of the Seller under all Business
Licenses arising and to be performed on and after the Closing Date;
(iii) Liabilities which relate to conduct of the
Business prior to the Closing Date and are reflected on the Latest Balance
Sheet, to the extent such liabilities are properly recorded thereon as current
liabilities and incurred in compliance with this Agreement, as applicable;
(iv) Severance payments assumed by the Purchaser
pursuant to Section 6.9(b);
(v) Liabilities of the Seller for all accrued
vacation and sick time of all Business Employees to the extent included as
liabilities in the calculation of Working Capital;
(vi) 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
(x) such Liabilities are related to conditions existing at the Owned Real
Property or the Leased Real Property and (y) such Liabilities are not related to
Environmental Violations Seller is required to remediate pursuant to Section
6.13; and
(vii) Liabilities of the Seller under all Trade
Agreements and Barter Agreements.
(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 bonds, notes,
debentures or similar instruments, any indebtedness for borrowed money or any
guarantees thereof, including but not limited to the Revolving Credit and Term
Loan Agreement by and among Commercial Dispatch Publishing Company, Inc.,
Columbus Television, Inc., WMUR-TV, Inc., WBOY-TV, Inc., KDBC-TV Limited
Partnership, Citizens Bank New
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Hampshire, Citizens Bank Massachusetts and Citizens Bank Rhode Island, dated as
of July 16, 1998, and all agreements related thereto;
(ii) Liabilities of the Seller under any Benefit
Plan;
(iii) Liabilities for Income Taxes of the Seller,
including Income Taxes that relate to the sale of the Purchased Assets and Taxes
payable by Seller pursuant to Sections 2.7 and 6.8;
(iv) Liabilities of the Seller in respect of
transaction costs payable by the Seller pursuant to Section 6.8 hereof;
(v) Any liabilities relating to the capital stock of
the Company or any shareholder's agreement to which the Company is a party;
(vi) Any liabilities relating to the Excluded Assets;
(vii) Any liabilities of the Seller arising out of
infringement of the Intellectual Property rights of any Person, but only to the
extent such liabilities arose out of the operation of the Business prior to the
Closing;
(viii) Except as set forth in Section 6.13 and except
for liabilities assumed by the Purchaser pursuant to Section 2.2(b)(vi), all
liabilities arising out of violations of any Environmental Laws and any
liabilities for any release of Hazardous Materials; and
(ix) Any liabilities due to any other division or
business unit of Seller, shareholder of Seller, or any of their or Seller's
Affiliates, officers or directors or any liabilities under any employment
agreement or arrangement with Xxxxxxx X. Xxxxxxx or Xxxxx Xxxx or Item 113 on
Schedule 4.7(a).
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 Eighty-Five Million Dollars ($185,000,000) in cash, as adjusted pursuant
to Sections 2.3(b) and 6.13(g) hereof, plus the amount of any costs or expenses
incurred by the Seller pursuant to Section 6.13, with such amount not to exceed
Fifty Thousand Dollars ($50,000) (the "Cash Payment"), and (ii) the assumption
by the Purchaser of the Assumed Liabilities pursuant to Section 2.2 hereof.
(b) Working Capital Adjustment.
(i) For all purposes of and under this Agreement, the
term "Working Capital" shall mean (i) the value of the Seller's current assets
included within the Purchased Assets excluding Trade Agreements and Barter
Agreements, minus (ii) the value of the Seller's current liabilities excluding
Trade Agreements and Barter
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Agreements included within the Assumed Liabilities, minus (iii) without
duplication, amounts secured by the Encumbrances set forth on Schedule 4.5(b),
and minus (iv) the amount, if any, by which the value of the unfulfilled
obligations under all Trade Agreements and Barter Agreements existing on the
Closing Date exceeds One Hundred Thousand Dollars ($100,000), each calculated as
of the Closing in accordance with GAAP applied in a manner consistent with the
preparation of the Financial Statements (except that clause (iv) shall not be
calculated in a manner consistent with the Financial Statements).
(ii) At least five (5) Business Days prior to the
Closing, the Seller shall cause to be prepared and delivered to the Purchaser a
statement (the "Estimated Statement of Working Capital") setting forth the
Working Capital as of the Closing ("Closing Working Capital"), as estimated by
the Seller in good faith, based upon the books and records of the Seller and in
accordance with GAAP. In the event that the Estimated Statement of Working
Capital reflects positive Closing Working Capital, the Cash Payment to be paid
by the Purchaser to the Seller at the Closing pursuant to Section 2.3(a) and
Section 3.3(a) hereof shall be increased, on a dollar for dollar basis, in an
amount equal to any positive Closing Working Capital reflected in the Estimated
Statement of Working Capital. In the event that the Estimated Statement of
Working Capital reflects negative Closing Working Capital, the Cash Payment to
be paid by the Purchaser to the Seller at the Closing pursuant to Section 2.3(a)
and Section 3.3(a) hereof shall be decreased, on a dollar for dollar basis, in
an amount equal to any negative Closing Working Capital reflected in the
Estimated Statement of Working Capital.
(iii) As promptly as practicable, but in any event
within ninety (90) calendar days following the Closing, the Seller shall cause
to be prepared and delivered to the Purchaser a statement (the "Final Statement
of Working Capital") setting forth the Closing Working Capital. Subject to
Section 2.3(b)(iv) hereof, within thirty (30) calendar days following delivery
of the Final Statement of Working Capital pursuant to this Section 2.3(b)(iii),
(A) the Seller shall pay to the Purchaser the amount by which the Closing
Working Capital reflected in the Estimated Statement of Working Capital exceeds
the Closing Working Capital reflected in the Final Statement of Working Capital,
if any, or (B) the Purchaser shall pay to the Seller the amount by which the
Closing Working Capital reflected in the Final Statement of Working Capital
exceeds the Closing Working Capital reflected in the Estimated Statement of
Working Capital, if any. Any and all payments made pursuant to this Section
2.3(b)(iii) shall be made by wire transfer of immediately available funds to an
account designated in writing by the party to receive such payment. Any payment
made pursuant to this Section 2.3(b)(iii) shall be deemed to be an adjustment to
the Purchase Price.
(iv) If the Purchaser disagrees in good faith with
the Final Statement of Working Capital, then the Purchaser shall notify the
Seller in writing (the "Notice of Disagreement") of such disagreement within
thirty (30) calendar days following delivery of the Final Statement of Working
Capital. The Notice of Disagreement shall set forth in reasonable detail the
basis for the disagreement described therein. Thereafter, the Seller and the
Purchaser shall attempt in good faith to resolve and
13
finally determine the amount of the Closing Working Capital. If the Seller and
the Purchaser are unable to resolve the disagreement within thirty (30) calendar
days following delivery of the Notice of Disagreement, then the Seller and the
Purchaser shall select a mutually acceptable, nationally recognized independent
accounting firm that does not then have a relationship with the Seller or the
Purchaser, or either of their respective Affiliates (the "Independent
Accountant"), to resolve the disagreement and make a determination with respect
thereto. Such determination will be made, and written notice thereof given to
the Seller and the Purchaser, within thirty (30) calendar days after such
selection. The determination by the Independent Accountant shall be final,
binding and conclusive upon the Seller and the Purchaser. The scope of the
Independent Accountant's engagement (which will not be an audit) shall be
limited to the resolution of the disputed items described in the Notice of
Disagreement, and the recalculation, if any, of the Final Statement of Working
Capital in light of such resolution. If an Independent Accountant is engaged
pursuant to this Section 2.3(b)(iv), the fees and expenses of the Independent
Accountant shall be borne equally by the Seller and the Purchaser. Within ten
(10) calendar days after delivery of a notice of determination by the
Independent Accountant as described above, any payment required by Section
2.3(b)(iii) hereof shall be made, based on such determination.
(c) Allocation of Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets for all purposes (including Tax and
financial accounting purposes) in the manner set forth in Schedule 2.3(c)
hereto, which 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), and (ii) shall cooperate with each other in a timely filing, consistent
with such allocation, of Form 8594 with the IRS.
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
14
commercially reasonable efforts to obtain any and all such third party consents
under all Material Business Contracts and 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 Business License. If any such third party consent is not obtained
before the Closing, the Seller shall cooperate with the Purchaser in any
reasonable arrangement designed to provide to the Purchaser after the Closing
the benefits under the applicable Business Contract or Business License
including enforcement for the benefit of the Purchaser of any and all rights of
the Seller against any other Person arising out of breach or cancellation by
such other Person of the Material Business Contracts or the Business Licenses
and including, if so reasonably requested by the Purchaser, acting as an agent
on behalf of the Purchaser, or as the Purchaser shall otherwise reasonably
request; provided, however, that Seller shall not be required to pay or incur
any cost or expense in connection therewith.
2.6 Proration of Lease Payments, Utility Charges and Other Payments. If
the Closing Date shall fall on a date other than the date on which payments are
due with respect to (a) any Contracts for Leased Assets and Leased Real
Property, (b) insurance or (c) utility or similar regular periodic charges with
respect to the Purchased Assets for which a final billing has not been received
by the Seller, any installment of rental payments, insurance premiums and any
such utility or similar charge payable with respect to the current period in
which the Closing Date occurs shall be paid by the Seller on the basis of the
actual number of days elapsed from the first day of such period to the Closing
Date and the balance shall be paid by the Purchaser.
2.7 Proration of Taxes. All property taxes, ad valorem taxes and
special assessments payable with respect to a taxable period beginning and
ending before the Closing Date, but not yet due as of the Closing Date, with
respect to any Purchased Assets shall be paid by the Seller. In the case of any
such taxes or assessments payable with respect to a taxable period beginning
before the Closing Date and ending after the Closing Date, but not yet due as of
the Closing Date, the Seller shall pay that portion of such taxes times a
fraction, the numerator of which is the number of days from the beginning of
such taxable period through and including the Closing Date, and the denominator
of which is 365, and the balance shall be paid by the Purchaser.
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 10:00 a.m.,
New York time, on a date to be designated by the Seller, which date shall be the
later of 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 hereof, or January 8, 2001 (the "Closing Date"), at the offices of
Xxxxxx & Xxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxxxx, X.X.
00000, unless another time, date or place is mutually agreed upon in writing by
the Seller and the Purchaser.
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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) A warranty deed or deeds, as the case may be, in
substantially the form attached hereto as Exhibit A (the "Warranty 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 D (the "Assignment of
Proprietary Rights");
(v) an Assignment of Station Licenses substantially
in the form attached hereto as Exhibit E (the "Assignment of Station Licenses");
(vi) copies of all instruments, certificates,
documents and other filings (if applicable) necessary or reasonably requested by
the Purchaser 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 or reasonably requested by the Purchaser 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 each in a form reasonably satisfactory to counsel for the
Purchaser; 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.
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(i) An officer's certificate substantially in the
form attached hereto as Exhibit F;
(ii) a secretary's certificate substantially in the
form attached hereto as Exhibit G;
(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; and
(iv) for each Owned Real Property, an affidavit or
other undertaking of the Seller as may be reasonably required by the Purchaser's
title insurance company to issue a standard ALTA Owner's Policy for such Owned
Real Property subject only to the Permitted Encumbrances (it being understood
that the Seller will provide any affidavit or undertaking required in order to
induce the Purchaser's title insurance company to insure over any "gap" period
resulting from any delay in the recording of documents).
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,
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; provided, that Fifteen Million Dollars ($15,000,000) (the "Post-Closing
Escrow") of the Cash Payment shall be delivered by the Purchaser by wire
transfer of immediately available funds to Allfirst Bank, as escrow agent (the
"Escrow Agent"), under an escrow agreement to be entered into on the Closing
Date by the Seller, the Purchaser and the Escrow Agent substantially in the form
attached hereto as Exhibit J (the "Post-Closing Escrow Agreement").
(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
17
Purchaser responsible for all Assumed Liabilities and release the Seller
therefrom to the fullest extent permitted under applicable Law.
(c) Closing Certificates.
(i) An officer's certificate substantially in the
form attached hereto as Exhibit H; and
(ii) a secretary's certificate substantially in the
form attached hereto as Exhibit I.
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 New Hampshire, 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 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 legal, 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
18
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 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 respect, constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a default) under, give rise to any right of termination, amendment,
modification, acceleration or cancellation of any obligation or loss of any
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 Material
Business Contract or Business License 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, individually or in the aggregate, have, or could
reasonably be expected to 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
19
authorization, or to make such registration, qualification, designation,
declaration or filing, would not individually or in the aggregate, have, or
could reasonably be expected 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) real property
owned, as of the date hereof, by the Seller and all major buildings, structures
and other improvements thereon, the ("Owned Real Property"), (ii) each real
property lease pursuant to which the Seller is a party with respect to the
conduct of the operations of the Business, whether as a tenant, subtenant,
landlord or sublandlord including a description of the location and use as of
the date hereof, by the Seller, the name of the parties thereto and a
description of the property demised thereunder (including major buildings and
improvements located thereon) (each such lease, sublease or occupancy agreement
is referred to herein collectively as the "Leases" and each individually as a
"Lease"; the property demised pursuant to such Leases is referred to herein as
the "Leased Real Property") as the case may be, the date of the lease contract
relating thereto and all amendments thereof, and (iii) all tangible personal
property owned by the Seller, as reflected in the Seller's schedule of 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 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 and at the
Closing the Seller will convey to Purchaser fee simple title to all of the Owned
Real Property.
(c) Except for Permitted Encumbrances, Seller has good and
marketable title to all real property purported to be owned or occupied by
Seller relating to the business and operation of the Station, free and clear of
all liens, claims and encumbrances. Except for Permitted Encumbrances, Seller
has good and marketable title and owns outright, free and clear of all liens,
claims, easements, rights of way or restrictions (whether zoning or otherwise),
each improvement, fixture and item of equipment located in or on each of the
properties and premises owned, leased, used or occupied by it relating to the
business and operation of the Station. No improvement, fixture or equipment in
or on any such premises and properties to the extent owned or occupied by
Seller, or the occupation or leasehold with respect thereto, is in violation of
20
any law, including, without limitation, any zoning, building, safety or health
law, except as would not, individually or in the aggregate, have, or would
reasonably be expected to have, a Material Adverse Effect. Each of such premises
and properties is zoned for the purposes for which each of such premises or
properties is now used by Seller, except as would not, individually or in the
aggregate prohibit or materially restrict the continued use and operation of any
Owned Real Property consistent with past practice.
(d) No Owned Real Property or, to the knowledge of the Seller,
Leased Real Property, has been condemned or otherwise taken by any public
authority and no condemnation or taking of such Properties is, to Seller's
knowledge, threatened or contemplated, and none of such Properties is, to
Seller's knowledge, 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.
(e) Seller has not granted any outstanding options or entered
into any outstanding contracts with others for the sale, lease or transfer of
all or substantially all of any Owned Real Property, and no person has any right
or option to acquire, or right of first refusal with respect to, any Owned Real
Property or any portion thereof.
(f) The buildings and other improvements used at or in
connection with the Owned Real Property do not encroach onto land adjoining any
Owned Real Property or onto any easements to such an extent as would materially
impair the value of the Owned Real Property and such improvements or the
continued use and operation of the Owned Real Property and such improvements for
the same uses and operations as those conducted at the present time, and the
improvements from land adjoining the Owned Real Property do not encroach onto
any part of the Owned Real Property to such an extent as would materially impair
the continued use and operation of the Owned Real Property and such improvements
for the same uses and operations as those conducted at the present time. All guy
wires, guy anchors, satellite dishes, associated transmission equipment,
transmitter buildings, towers, signs, main studio buildings, associated parking
lots, and other buildings and other improvements included in the Purchased
Assets are all located entirely on and within the boundaries of the Owned Real
Property.
(g) No brokerage or leasing commission or other compensation is
presently due or payable to any Person by Seller with respect to any Lease.
(h) Each Owned Real Property and Leased Real Property is
contiguous to publicly dedicated streets, roads or highways, or if not so
contiguous, access to and from the Owned Real Property and Leased Real Property,
as applicable, and publicly dedicated streets, roads or highways is available
through private lands pursuant to valid, unsubordinated, perpetual, enforceable
and recorded public or private easements or rights-of-way.
4.6 Intellectual Property and Proprietary Rights.
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(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. The Seller owns or has a valid license or
right to use all such Intellectual Property, free and clear of any Encumbrances
other than Permitted Encumbrances. 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 in or necessary to conduct the operations of the Business or the
Purchased Assets as currently conducted by the Seller consistent with past
practice, except as would not reasonably be expected 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 reasonably be expected to have a
Material Adverse Effect.
4.7 Business Contracts.
(a) Schedule 4.7(a) hereto contains a true, complete and
correct 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 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) all leases relating to all Leased Real
Property; (ii) all capital or operating leases or conditional sales agreements
relating to any Purchased Assets (other than Short Term Agreements), in each
case involving monthly payments in excess of Five Thousand Dollars ($5,000);
(iii) all noncompetition or other agreements restricting the ability of the
Seller to engage in the Business in any location; (iv) all employment,
consulting, separation, collective bargaining or other labor agreements; (v) all
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; (vi) each agreement between the Seller and a third party in effect as
of the date hereof for the sale of air time on the Station in exchange for goods
and services used for the benefit of the Station ("Barter Agreements"), in each
case involving payments in excess of Five Thousand Dollars ($5,000); (vii) all
program and network affiliation agreements; (viii) all contracts described in
Section 2.2(c)(i); and (ix) all agreements with any other business unit or
division of the Seller, any shareholder of Seller or any of their or Seller's
Affiliates, officers or directors (collectively, "Related Party Agreements");
provided, however, that except for Barter Agreements involving payments in
excess of Five Thousand Dollars ($5,000), any Contract for the sale of time on
the Station shall be deemed not to be a Material Business Contract for purposes
of this Section 4.7(a). 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) days or
less notice without premium or penalty.
22
(b) 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 breach or default (or event that with notice or the lapse of time, or
both, would constitute a breach or 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 case which, individually or in the aggregate, has had,
or could reasonably be expected to have, a Material Adverse Effect.
4.8 Business Licenses. Schedule 4.8 hereto contains a list of each
Business License. The Seller owns or possesses all right, title and interest in
and to all Licenses which are necessary to conduct the Business as conducted by
the Seller as of the date hereof, except for such Licenses which the failure to
obtain or possess would not, individually or in the aggregate, have a Material
Adverse Effect. No loss or expiration of any License is pending or, to the
knowledge of the Seller, threatened, other than the expiration of any Licenses
in accordance with the terms thereof that 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 to the extent permitted by Section 6.1 of this
Agreement 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."
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 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
23
obligation to contribute to, has Liability under or to which it is otherwise a
party and which covers or otherwise provides benefits to any Business Employees
or 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) Except as set forth in Schedule 4.10(b) hereto:
(i) each of the Benefit Plans is 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;
(ii) each of the Benefit Plans 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 Benefit Plan;
(iii) with respect to each of the Benefit Plans,
true, correct, and complete copies of the following documents, as applicable,
have been made available to the Purchaser and its agents and representatives:
(A) the current plan document and related trust document, 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;
and (D) the current summary plan description; and
(iv) neither the Seller, nor any entity required to
be aggregated with the Seller or any Subsidiary thereof (as defined under
Sections 414(b), or 414(c) 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 4001(a)(3) 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 and, with respect to
Business Employees, except as set forth on Schedule 4.10(c), the Seller and its
affiliates are not party to any plan, program, arrangement or understanding that
would result, separately or in the aggregate, in the payment (whether in
connection with any termination of employment or otherwise) of any "excess
parachute payment" within the meaning of Section 280G of the Code with respect
to a current or former employee of, or current or former independent contractor
to, the Seller or any affiliate thereof.
(d) Except as set forth on Schedule 4.10(d), no Benefit Plan
provides severance benefits to current or former employees or other service
providers.
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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 is 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 Information.
(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 audited statement of assets and liabilities of
the Business (the "Latest Balance Sheet") as of December 26, 1999 (the "Latest
Balance Sheet Date"), (ii) the audited statements of earnings of the Business as
of December 26,1999, (iii) the audited statements of changes in stockholders'
equity of the Seller as of December 26, 1999, (iv) the audited statements of
cash flows of the Business as of December 26, 1999, and (v) the unaudited
balance sheet of the Business as of July 30, 2000, the related unaudited
statements of operations as of July 30, 2000 and statements of retained earnings
of the Business as of June 30, 2000. 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 and were prepared in accordance with GAAP. The Financial Statements
fairly present, in all material respects, the assets and the Liabilities of the
Seller that primarily relate to, the financial position 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 on Schedule 4.12(b) hereto, since
January 1, 2000, (i) none of the Seller or any of its Affiliates provides or
causes to be provided any assets, services or facilities to the Station which
are not included with the Purchased Assets which are material to the conduct of
the Business and (ii) the Station does not provide or cause to be provided any
assets, services or facilities to the Seller or any of its Affiliates which are
material to the conduct of the Business.
(c) All trade accounts receivable and all notes, bonds and
other evidences of indebtedness of and rights to receive payments arising out of
sales occurring in the conduct of the Business and the security agreements
related thereto, including any rights of the Seller with respect to any third
party collection proceedings or any other Action which have been commenced
therewith (the "Accounts Receivable") reflected on the Latest Balance Sheet and
the Accounts Receivable arising and all Accounts Receivable arising subsequent
to the date of the Latest Balance Sheet, (i) have arisen from bona fide sales
transactions in the ordinary course of business of the Station on
25
ordinary trade terms, (ii) represent valid and binding obligations due to the
Seller, enforceable in accordance with their terms, and (iii) have been
collected or are collectible in the ordinary course of business of the Station
in the aggregate recorded amounts thereof in accordance with their terms without
valid set-off or counterclaim. Schedule 4.12(c) lists any obligor that together
with all of its Affiliates owes uncollected amounts to the Seller in an
aggregate amount of Fifty Thousand Dollars ($50,000) or more.
(d) Except as provided on Schedule 4.15 or Schedule 4.12(d), no
business unit or division of the Seller, any shareholder of the Seller or any of
their or Seller's Affiliates, officers or directors have made any claim against
the Seller or the Business or, to the knowledge of the Seller, owes money to the
Seller or the Business.
(e) Except for the execution and delivery of this Agreement and
the transactions contemplated hereby and except as set forth on Schedule 4.12(e)
hereto, from June 30, 2000 to the date hereof the Seller has not, with respect
to the operation of the Business or the Purchased Assets:
(i) amended or terminated any Material Business
Contract or Business License except in the ordinary course of business
consistent with past practice;
(ii) mortgaged, pledged or subjected to any lien or
encumbrance, any of the Purchased Assets, except for Permitted Encumbrances;
(iii) acquired or disposed of any Purchased Assets or
entered into any agreement or other arrangement for such acquisition or
disposition, except in the ordinary course of business consistent with past
practice;
(iv) entered into any agreement, commitment or other
transaction other than in the ordinary course of business consistent with past
practice;
(v) paid any bonus to any employee of the Business or
granted to any employee of the Business any other increase in compensation in
any form, except in the ordinary course of business consistent with past
practice; or
(vi) operated the Business other than in the ordinary
course consistent with past practice.
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
Purchased Assets or the 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 to have a Material Adverse Effect.
4.14 Subsidiaries and Investments. Except as set forth in Schedule
4.14, the Seller does not have any Subsidiaries, and does not own any direct or
indirect equity or
26
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.
4.15 Litigation; Governmental Orders.
(a) Except as set forth in Schedule 4.15 hereto, there are no
pending Actions or, to the knowledge of the Seller, threatened Actions for which
written notice thereof has been received by the Seller, by any Person or
Governmental Authority against or relating to the Seller with respect to the
Business, the Purchased Assets 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.
(b) Except as set forth in Schedule 4.15 hereto, the Seller is
not subject to or bound by any Governmental Order.
4.16 Compliance with Laws. Except as set forth in Schedule 4.16 hereto,
to the knowledge of the Seller, the Seller is in compliance with, and the Seller
has never received any claim or notice that it is not in compliance with, each
Law or Governmental Order applicable to the Business, except as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
4.17 Insurance.
(a) Schedule 4.17 hereto contains a true, correct and complete
list (specifying the insurer, the type of coverage, expiration date, 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 on behalf of the Seller with respect
to the Business or the Purchased Assets ("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
27
respect of all reported or unreported libel claims arising out of occurrences
prior to the consummation of this Agreement.
4.18 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.
4.19 FCC Matters. Schedule 4.19 sets forth a list of all Station
Licenses. The Seller is the valid and legal holder of each of the Station
Licenses. The expiration date of the term of each Station License is shown on
Schedule 4.19. The Station Licenses (i) are valid and in full force and effect
and not subject to any conditions other than those that appear on the Station
Licenses in Schedule 4.19 or that otherwise would have a Material Adverse Effect
and (ii) constitute all of the material licenses, permits and authorizations
used in or required for the current operation of the Station under the
Communications Act. None of the Station Licenses is subject to any restriction
or condition that would in any respect limit the full operation of the Station
as it is currently operated by the Seller. The Seller knows of no fact or
circumstance that would, under the Communications Act, disqualify or preclude
the Seller from assigning the Station Licenses to the Purchaser. There are no
proceedings, complaints, notices of forfeiture, claims, or investigations
pending or, to the Seller's knowledge, threatened, against the Seller, or any
officer, director, or shareholder of the Seller that would materially impair the
ability of the Seller to assign the Station Licenses to the Purchaser or which
would materially impede the Seller's ability to prosecute the FCC Applications
or seek the grant of the FCC Consents. Except as noted in Schedule 4.19, the
Station is licensed by the FCC to operate, and is operating, with the facilities
authorized by its Station Licenses. There is not, pending, or to the knowledge
of the Seller threatened, any action or proceeding by or before the FCC to
revoke, cancel, rescind or modify (including a reduction in coverage area) any
of the Station Licenses (other than proceedings to amend FCC rules of general
applicability) or refuse to renew the Station Licenses, and there is not now
issued or outstanding, or to the knowledge of the Seller pending or threatened,
by or before the FCC, any order to show cause, notice of violation, notice of
apparent liability, or notice of forfeiture or complaint against the Seller with
respect to the Station, other than regularly scheduled license renewal
proceedings. There are no unsatisfied or otherwise outstanding citations issued
by the FCC with respect to the Station. The Station is operating, and the
Purchased Assets are operated, in compliance in all material respects with the
Station Licenses and in a manner that will not materially and adversely affect
the Station Licenses, taken as a whole.
4.20 Taxes. The Seller has paid in full or discharged all Taxes the
nonpayment of which could result in an Encumbrance on the Purchased Assets in
the hands of the Purchaser, excepting in each case Taxes that are not yet due
and payable and Taxes which are to be prorated pursuant to Section 2.7.
28
4.21 Labor Matters.
(a) Except as listed on Schedule 4.21(a), there is not pending
or, to the knowledge of the Seller, threatened against the Seller any labor
dispute, strike or work stoppage that affects or interferes with the operation
of the Station, and the Seller has no knowledge of any organizational effort
currently being made or threatened by or on behalf of any labor union with
respect to employees of the Station. The Station has not experienced any strike,
work stoppage or other similar significant labor difficulties within the twelve
(12) months preceding the date of this Agreement.
(b) Except as set forth on Schedule 4.21(b), (i) the Seller is
not a signatory or a party to, or otherwise bound by, a collective bargaining
agreement which covers employees or former employees of the Station, (ii) the
Seller has not agreed to recognize any union or other collective bargaining unit
with respect to any employees of the Station, and (iii) no union or other
collective bargaining unit has been certified as representing any employees of
the Station.
4.22 Environmental Matters. Except as set forth on Schedule 4.22, to
the knowledge of Seller, (i) no Action is pending or has been threatened in
writing, alleging a violation or obligation to remediate or pay fines or
penalties under applicable Environmental Law with respect to the Owned Real
Property or the Leased Real Property, (ii) there are no violations or
obligations to remediate or pay fines or penalties under applicable
Environmental Law with respect to the Owned Real Property or the Leased Real
Property, (iii) there are no underground storage tanks at, in, on or under the
Owned Real Property or the Leased Real Property, and (iv) Seller has not removed
any underground storage tanks at the Owned Real Property or the Leased Real
Property. Schedule 4.22(a) sets forth a complete description of all existing
environmental reports obtained by the Seller on its behalf prepared by
environmental consultants with respect to the Owned Real Property or the Leased
Real Property and complete copies of such reports have been provided to the
Purchaser.
4.23 Limitations on Representations and Warranties. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE SELLER MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE FUTURE FINANCIAL PERFORMANCE OR RESULTS
OF THE OPERATIONS OF THE BUSINESS.
29
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 Purchaser Documents, 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 Purchaser Documents, 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'
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 Purchaser Documents by the Purchaser at the Closing and, assuming the due
authorization, execution and delivery thereof by the Seller, each of the
Purchaser Documents 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 Purchaser Documents, 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
30
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
assets or properties of the Purchaser pursuant to, 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 Purchaser Documents 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 Purchaser Documents, the performance by the Purchaser of its obligations
hereunder and thereunder, and the consummation by the Purchaser of the
transactions contemplated hereby and thereby, 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 Purchaser Documents 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,
other than Xxxxx & Co., Inc. and/or Xxxxx X. Xxxxxx, whose fees and expenses
shall be borne by the Purchaser.
5.6 FCC Matters. The Purchaser is legally and financially qualified
under the Communications Act to enter into this Agreement and the Purchaser
Documents, and to consummate the transactions contemplated hereby and thereby.
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, 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
31
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.
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 (which consent shall not be
unreasonably withheld or delayed), and except as otherwise set forth in Schedule
6.1 hereto, the Seller shall (a) conduct the operations of the Business in the
ordinary course of business and consistent with past practices, (b) 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 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
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 (which consent shall not be
unreasonably withheld or delayed and which consent shall be deemed to have been
given if the Seller shall not have received the Purchaser's written objection to
any such action within five (5) Business Days of the date on which the Seller's
written request for consent shall have been received by the Purchaser), and
except as otherwise set forth in Schedule 6.1 hereto, the Seller shall not take,
or cause to be taken, any of the following actions to the extent such actions
relate primarily to the Business:
(i) merge with or into, or consolidate with, any
other Person;
(ii) change or agree to rearrange in any material
respect the character of the Business or enter into any Program License
Agreements or Barter Agreements or Related Party Agreements;
(iii) except as set forth on Schedule 6.9 hereto,
adopt, enter into or amend any arrangement which is, or would be, a Benefit Plan
unless otherwise
32
required by applicable Law or this Agreement, in which case notice thereof shall
be provided to the Purchaser within a reasonable time thereafter;
(iv) make any change in the accounting methods or
practices of the Seller or the Business, or make any changes in depreciation or
amortization policies or rates adopted by the Seller or the Business;
(v) make any write down of inventory or write off as
uncollectible of accounts receivable;
(vi) employ, or commit to employ, any person or
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, other than
increases in wages, salary, bonuses or other direct or indirect compensation
made in the ordinary course of business consistent with past practice, and those
required by any existing Contract or Law;
(vii) except as set forth on Schedule 6.9 hereto,
make any payment or commitment to pay any severance or termination pay to any
Business Employee or any independent contractor, consultant, agent or other
representative of the Business, other than payments or commitments to pay such
Business Employees in the ordinary course of business consistent with past
practice;
(viii) (A) enter into any real property lease (as
lessor or lessee); (B) sell, abandon or make any other disposition of any of the
Purchased Assets other than in the ordinary course of business consistent with
past practice; (C) grant or incur any Encumbrance on any of the assets or
properties of the Seller other than Permitted Encumbrances; (D) make or commit
to any capital expenditures; or (E) sell, lease, transfer, option or enter into
any agreements or commitments with respect to real property (including Owned
Real Property and Leased Real Property and tower leases);
(ix) except in the ordinary course of business and
except for Excluded Liabilities, incur or assume any debt, obligation or
Liability;
(x) 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;
(xi) amend or terminate any Material Business
Contract or Material Business License except in the ordinary course of business
consistent with past practice; or
(xii) enter into any binding agreement with respect
to any of the foregoing.
(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,
33
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, and shall furnish to the Purchaser such information and data,
financial records and other documents relating to the Business and the Purchased
Assets as the Purchaser may reasonably request. 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.
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 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)
34
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 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. The parties further understand and agree that
neither party shall knowingly take any action that is inconsistent with the
foregoing or would have the effect of delaying or hindering the consummation of
the transactions contemplated hereby.
(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 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
efforts to (i) obtain any governmental clearances required for consummation of
the transactions contemplated hereby, (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.
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 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
35
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,
unless (i) the disclosure is required by applicable Law or the rules of any
stock exchange on which such party's securities are traded, (ii) the terms are
readily ascertainable from public or published information, or trade sources
(without violation of the foregoing provisions of this sentence), (iii) the
disclosure is (A) in connection with any Action in respect of this Agreement or
(B) to a Governmental Authority the filing with or consent of which is required
in connection with the transactions contemplated by this Agreement or (iv) the
disclosure is to any officer, director, employee or agent of any party hereto or
of any of its Affiliates and such Person needs to know such information for
purposes of consummating the transactions contemplated by or the performance of
this Agreement, 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 Purchaser shall
also pay all filing fees for the parties under the HSR Act, as provided in
Section 6.4(b) hereof. 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 hereby. Notwithstanding the foregoing and anything
to the contrary contained in this Agreement, the Seller and the Purchaser shall
share equally any
36
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 all FCC filing
fees. 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) Except for Xxxxxxx X. Xxxxxxx and Xxxxx Xxxx, the Purchaser
shall offer employment as of the Closing Date to all Business Employees. As of
the Closing Date, the Purchaser shall employ each Business Employee who accepts
the Purchaser's offer of employment ("Transferred Employees") at a salary and at
a position that are at least as favorable as those provided by the Seller (or
its Affiliates) immediately before the execution hereof. As of the Closing Date,
the Purchaser shall cause all such Transferred Employees to be eligible to
participate in such "employee welfare benefit plans" and "employee pension
benefit plans" (as defined in Sections 3(1) and 3(2) of ERISA) (collectively,
the "Purchaser Benefit Plan") of the Purchaser that, in the aggregate, are
equivalent to the Benefit Plans of the Seller in which the Transferred Employees
participated immediately prior to the Closing Date. Purchaser shall further
cause each Purchaser Benefit Plan, as may apply, to recognize service of the
Transferred Employees with the Seller for purposes of eligibility and vesting
only. As soon as practicable after the Closing Date, the Seller shall cause to
be transferred to the Purchaser's 401(k) Plan, in cash, all of the individual
account balances of the Transferred Employees under the Seller's 401(k) plan in
which the employees of the Station now participate, upon receipt from the
Purchaser of evidence satisfactory to the Seller that the Purchaser's 401(k)
Plan is tax-qualified. Following such transfer of account balances, the
Purchaser's 401(k) Plan shall assume all liability for benefits with respect to
amounts transferred from the Seller's 401(k) Plan.
(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 shall have no liability under such severance
arrangements with respect to Xxxxx Xxxx or Xxxxxxx Xxxxxxx or with respect to
terminations of employment occurring before the Closing or with respect to
severance obligations for employees who become employees of any Imes family
members or any Affiliate of Seller or Seller's shareholders or relatives of such
shareholders.
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 or any of Seller's
Affiliates, on the one hand, and the division of the Seller responsible for
operating the Business, on the other hand.
37
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, upon request, deliver a copy of all
books and records of the Seller relating to the Business and acquired by the
Purchaser pursuant hereto to the shareholders of the Seller in sufficient detail
to enable such shareholders to prepare the Seller's financial statements, the
Estimated Statement of Working Capital, Final Statement of Working Capital and
all Tax Returns of the Seller relating to periods ending on or prior to the
Closing Date. In addition to the foregoing, from and after the Closing, the
Purchaser and the Seller shall afford to the other, and their respective
counsel, accountants and other authorized agents and representatives, and the
Purchaser shall afford 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 Application for FCC Consent. Not later than ten (10) calendar days
after the date of this Agreement, the Seller and the Purchaser shall file with
the FCC substantially complete applications (the "FCC Applications") seeking the
FCC's consent to the assignment of the Station Licenses from the Seller to the
Purchaser and the Purchaser's assumption thereof (the "FCC Consent"). The Seller
and the Purchaser shall diligently and promptly take all actions necessary, or
desirable and proper, to prosecute the FCC Applications expeditiously. The
Seller shall timely publish and/or broadcast the notices required by the rules
and regulations of the FCC pertaining to the FCC Applications. The Seller and
the Purchaser shall cooperate with each other in the preparation and prosecution
of the FCC Applications. The Seller and the Purchaser shall provide to each
other copies of any and all petitions and pleadings filed by any third party,
and copies of any and all correspondence and orders received from the FCC, with
respect to any of the FCC Applications. In the event that the FCC imposes any
condition upon the Purchaser or the Seller with respect to any FCC Applications,
the party subject to such condition shall use its commercially reasonable
efforts to comply therewith; provided, however, that the party subject to such
condition shall not be required to take any action if (i) the condition was
imposed on it as the result of a circumstance the existence of which does not
constitute a breach by the party of any its representations, warranties, or
covenants under this Agreement, and (ii) compliance with the condition would, in
its reasonable judgment, be unduly burdensome in any material respect
38
(financial or otherwise) on it. It is acknowledged and agreed that, for the
purposes of this Section 6.12 and any other provision hereof, including Section
6.4, any condition imposed by any Governmental Authority requiring divestiture
of television broadcast station WCVB-TV, Boston, Massachusetts, by the Purchaser
or its Affiliates would be unduly burdensome in a material respect and therefore
not required. The Purchaser and the Seller shall oppose any petitions to deny or
other objections filed with respect to any applications for the FCC Consent and
any requests for reconsideration or judicial review of the FCC Consent and
otherwise use their commercially reasonable efforts to cause the FCC Order to
become a Final Action as soon as practicable. If the Closing shall not have
occurred for any reason within the original effective period of the FCC Consent,
and neither party shall have terminated this Agreement under Article VIII, the
parties shall jointly request an extension of the effective period of the FCC
Consent. No extension of the FCC Consent shall limit the right of any party to
exercise its rights under Article VIII.
6.13 Environmental Matters.
(a) The Purchaser shall have the right, at its sole cost and
expense, to engage Dames & Xxxxx (the "Consultant") and 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 (collectively, the "Phase
I"), 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;
provided, however, the Phase I must be completed and the final report prepared
by the Consultant in connection therewith must be delivered to the Seller within
thirty (30) calendar days from the date hereof.
(b) If the Phase I details (x) a violation under applicable
Environmental Law in connection with the Owned Real Property or the Leased Real
Property that is required to be remediated or (y) a condition which is required
to be remediated or would result in fines or penalties, in each case under
applicable Environmental Law (an "Environmental Violation"), the Consultant
shall, in good faith, estimate the costs and expenses of the Environmental Work
and Seller shall (subject to Section 6.13(e)), at its sole cost and expense,
remedy such Environmental Violation to meet the least stringent standards or
requirements that the Seller is required to meet so as not to be an
Environmental Violation (the "Environmental Work"); provided, however, that in
connection with the Environmental Work, (i) Seller may not impose any use
restriction against any Owned Real Property that would materially and adversely
affect the use and enjoyment of the property subject thereto or affected thereby
for its Business purpose, (ii) Seller may not impose any post-Closing Date
obligations on the Purchaser with respect to monitoring or other supervision of
the Environmental Work, (iii) Seller shall obtain all necessary Licenses
pertaining to the performance of the Environmental
39
Work, and (iv) upon completion of the Environmental Work, the Seller shall
restore the affected Owned Real Property or Leased Real Property so as not to
materially and negatively affect the use and enjoyment of such property for its
current use.
(c) In addition, if the Phase I identifies an Environmental
Violation or potential Environmental Violation and recommends that further
investigatory action is necessary to define the scope of the Environmental
Violation at any Owned Real Property or Leased Real Property, then the Purchaser
shall have the right to conduct the investigation so recommended (the "Phase II
Inspection"), provided, however, that (i) 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, (ii) the Consultant shall
complete the Phase II Inspection within thirty (30) calendar days from the date
of the Phase I, (iii) the Seller shall have the right to review and approve the
work plan for the Phase II Inspection, which approval shall not be unreasonably
withheld or delayed, and (iv) the Phase II Inspection shall be conducted only
(A) during regular business hours upon reasonable notice to the Seller, (B) in a
manner that 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 (C) without material damage to any property of the Seller or any
property of any lessor of the Leased Real Property, provided that any such
damage shall be promptly repaired by the Purchaser.
(d) If the Phase II Inspection details an Environmental
Violation the Consultant shall, in good faith, estimate the costs and expenses
of the Environmental Work and the Seller shall, in good faith, remedy such
Environmental Violation in accordance with the terms and conditions set forth in
paragraph (b) of this Section 6.13 at Seller's sole cost and expense.
(e) 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 ten (10) calendar days after the Seller's receipt of the
results of the Phase I or the Phase II Inspection (whichever is later). 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.
(f) The Seller and the Purchaser shall use their commercially
reasonable efforts for a period of ten (10) calendar days after the Seller's
delivery of the notice referred to in Section 6.13(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, then a nationally recognized
environmental consultant mutually selected by the Purchaser and the Seller (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 ten (10)
calendar days of receipt
40
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
(g) Notwithstanding anything to the contrary contained herein,
the Seller shall not be obligated to incur any costs or expenses in connection
with Environmental Work in excess of Two Hundred Fifty Thousand Dollars
($250,000) (the "Environmental Work Cost Limit"). If the estimated costs or
expenses of Environmental Work exceed the Environmental Work Cost Limit, the
Seller shall have the right, in its sole and absolute discretion, to elect, by
written notice to the Purchaser, given within ten (10) Business Days after the
Seller's receipt of the Phase I or the Phase II (as applicable), whichever is
later, not to incur any costs or expenses in connection with the Environmental
Work (the "Environmental Termination Notice"). If the Seller gives the
Environmental Termination Notice, the Purchaser shall have the right, in its
sole and absolute discretion, by written notice to the Seller within ten (10)
Business Days after the Purchaser's receipt of the Environmental Termination
Notice, to elect to (x) proceed with the Closing, receive a reduction to the
Purchase Price in the amount of Two Hundred Thousand Dollars ($200,000) and, at
Closing, assume all further responsibility and liability for the Environmental
Violation under applicable Environmental Law; or (y) terminate this Agreement.
(h) If the Seller (i) does not give the Environmental
Termination Notice, (ii) has not completed all required Environmental Work on or
before the Closing Date, and (iii) the estimated cost of such Environmental Work
is greater than the Environmental Work Cost Limit, the Seller shall add to the
Post-Closing Escrow an amount equal to one hundred fifty percent (150%) of the
amount by which the estimated costs of such uncompleted Environmental Work
exceeds the Environmental Work Cost Limit, which shall be distributed to the
Purchaser in such amounts to reimburse the Purchaser for its actual costs
incurred in connection with Purchaser's completion of any Environmental Work
required by Section 6.13(b) or Section 6.13(d) hereof that is not completed by
the Seller on or before the Closing Date and the Purchaser shall be entitled to
supervise and control the completion of the uncompleted Environmental Work at
Seller's sole cost and expense. Notwithstanding Purchaser's supervision and
control, Seller shall remain solely liable for the completion of the
Environmental Work in accordance with Section 6.13(b) above.
6.14 Inconsistent Actions. Prior to the Closing, neither Purchaser nor
Seller shall take any action which is materially inconsistent with its
obligations under this Agreement, or that could hinder or delay the consummation
of the transactions contemplated by this Agreement.
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
41
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 Sections 4.5(b) and 4.19 of 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 as of such date only).
(b) At the Closing, the Seller shall have delivered to the
Purchaser all of the Seller's right, title and interest in the Purchased Assets,
which right, title and interest shall be sufficient to conduct the Business in a
manner substantially similar to the manner in which the Business was conducted
by the Seller immediately prior to the Closing Date.
(c) The Seller shall have performed and complied with all the
covenants and agreements required by this Agreement to be performed or complied
with by it at or prior to the Closing, except as would not, in any individual
case or in the aggregate, have a Material Adverse Effect.
(d) All applicable waiting periods (and any extensions thereof)
under the HSR Act shall have expired or otherwise been terminated.
(e) 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.
(f) 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 except, in the
case of (i) Section 3.2(a)(vi) or Section 3.2(b)(iv), Encumbrances that do not
materially impair the value or use of the affected Purchased Assets or (ii)
Section 3.2(a)(vii), Licenses, waivers, consents, approvals or authorizations
other than the consent of the FCC to the FCC Applications and the expiration or
termination of the waiting periods under the HSR Act.
(g) The FCC shall have granted its consent to the FCC
Applications without the imposition on the Purchaser of any conditions that need
not be complied with by the Purchaser under Section 6.12 hereof and such consent
shall have become a Final Order.
(h) The Seller and the Escrow Agent shall have entered into the
Post-Closing Escrow Agreement.
(i) The Seller shall have (i) substantially completed any
Environmental Work pursuant to Section 6.13 hereof to the extent the estimated
costs and expenses associated with such Environmental Work are less than the
Environmental
42
Work Cost Limit, or (ii) complied with its obligations pursuant to Sections
6.13(b), (c), (d), and (f) hereof to the extent the estimated costs and expenses
associated with such Environmental Work are greater than the Environmental Work
Cost Limit; provided that in the case of Subsection (ii) hereof, (x) the
Purchaser incurs no liability for such Environmental Work or with respect to the
applicable Environmental Violation and (y) the estimated costs and expenses for
such Environmental Work do not exceed Three Million Dollars ($3,000,000).
(j) The Seller shall have conveyed to the Purchaser good and
marketable title to all of the Owned Real Property, free and clear of all liens,
claims and Encumbrances, other than Permitted Encumbrances or Encumbrances that
do not materially impair the value or use of the parcel of Owned Real Property
to which they relate.
(k) THE PARTIES UNDERSTAND AND AGREE THAT THE FAILURE OF THE
REPRESENTATIONS AND WARRANTIES OF SELLER (OTHER THAN THOSE CONTAINED IN SECTIONS
4.5(b) AND 4.19) TO BE TRUE AND CORRECT AS OF THE CLOSING DATE SHALL IN NO WAY
LIMIT PURCHASER'S OBLIGATIONS TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED UNDER
THIS AGREEMENT, INCLUDING ITS OBLIGATIONS UNDER ARTICLE III, BUT MAY PROVIDE THE
BASIS FOR PURCHASER CLAIMS PURSUANT TO SECTION 8.4.
(l) The Sellers shall have obtained releases of the
Encumbrances identified as Item 2 of Schedule 4.5(b).
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 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.
(c) All applicable waiting periods (and any extensions thereof)
under the HSR Act shall have expired or otherwise been terminated.
43
(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 and such consent shall have become a Final Order.
(g) The Purchaser and the Escrow Agent shall have entered into
the Post-Closing Escrow Agreement.
ARTICLE VIII.
TERMINATION
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) by the Seller, if the Purchaser has materially breached any
of its obligations under this Agreement and the Seller is not in material breach
of this Agreement, except that, if such breach is curable by the Purchaser
through the exercise of its commercially reasonable efforts, then, for a period
of up to thirty (30) days, but only as long as the Purchaser continues to use
its commercially reasonable efforts to cure such breach (the "Seller Cure
Period"), such termination shall not be effective, and such termination shall
become effective only if the breach is not cured within the Seller Cure Period;
provided, however, Purchaser's failure to pay the Purchase Price in full to
Seller at Closing shall not be subject to the Seller Cure Period and shall be an
incurable breach of this Agreement;
(c) by the Purchaser, if the Seller has materially breached any
of its closing obligations under this Agreement and the Purchaser is not in
material breach of this Agreement, except that, if such breach is curable by the
Seller through the exercise of its commercially reasonable efforts, then, for a
period of up to thirty (30) days, but only as long as the Seller continues to
use its commercially reasonable efforts to cure such breach (the "Purchaser Cure
Period"), such termination shall not be effective, and such termination shall
become effective only if the breach is not cured within the Purchaser Cure
Period; provided, however, nothing in this Section 8.1(c) is intended to modify
Section 7.1(j) hereof;
(d) 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
44
the Closing has not occurred on or prior to 5:00 p.m. (New York time) on the
date which is one (1) year following the date of this Agreement (the
"Termination Date");
(e) 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(d) unless the party seeking to so
terminate this Agreement 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;
(f) 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 neither party hereto may terminate this Agreement if such party is
in default hereunder or has 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;
(g) by Seller, upon five (5) Business Days' prior written
notice (the "HSR Termination Notice"), if the waiting periods (and any
extensions thereof) under the HSR Act shall not have expired or been terminated
on or before December 31, 0000 (xxx "XXX Xxxxxxx Date"); provided, however, that
(i) the Seller shall have no right to terminate this Agreement pursuant to this
Section 8.1(g) if (A) the Seller is in material breach of this Agreement or (B)
the failure of the HSR Act waiting period (and any extensions thereof) to have
expired or terminated on or before the HSR Trigger Date is due to the Seller's
material breach of this Agreement, (ii) if the Seller has not complied with the
production and delivery of all information, documents and materials requested by
or required to be filed with any Governmental Authorities pursuant to Section
6.4 hereof and such failure to comply has caused the HSR Act waiting period (and
any extensions thereof) not to have expired or been terminated on or before the
HSR Trigger Date, then the HSR Trigger Date shall be postponed for the number of
days of delay caused by such failure to comply by the Seller, or (iii) if the
Seller has not complied with the production and delivery of all information,
documents and materials requested by or required to be filed with any
Governmental Authorities pursuant to Section 6.4 hereof by the date by which the
Purchaser has complied with such requests or requirements, then the HSR Trigger
Date shall be postponed by the number of days that the Seller has not so
complied following the date upon which the Purchaser has so complied. If Seller
delivers the HSR Termination Notice, Purchaser shall have the right to (x)
deliver written notice to the Seller within four (4) Business Days of receipt of
the HSR Termination Notice (the "HSR Termination Rescission Notice"), and (y)
pay Five Million Dollars ($5,000,000) to Seller (payable by wire transfer of
immediately available funds to an account designated in writing by the Seller),
whereby the Agreement shall continue in full force and effect as if the HSR
Termination Notice had not been delivered;
45
(h) by the Purchaser if the estimated cost of Environmental
Work pursuant to Section 6.13 hereof is greater than Three Million Dollars
($3,000,000);
(i) by the Purchaser as provided in Section 6.13(g) hereof;
and
(j) by the Purchaser as provided in Section 9.15 hereof.
8.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 8.1 hereof, 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 and Section 6.8 and Article VIII generally shall remain in full
force and effect, and (b) each party hereto shall remain liable to the other
party hereto for any willful breach of its obligations under this Agreement
prior to such termination.
8.3 Remedies for Termination due to Breach.
(a) Breach by the Seller. The Seller acknowledges that the
Purchased Assets are of a special, unique and extraordinary character, and that
damages are an inadequate remedy for a breach of this Agreement by the Seller.
Accordingly, as an alternative to termination of this Agreement under Section
8.1(c), the Purchaser shall be entitled, in the event of the Seller's material
breach, to enforcement of this Agreement (subject to obtaining any required
approval of the FCC or clearance under the HSR Act) by a decree of specific
performance or injunctive relief requiring the Seller to fulfill its obligations
under this Agreement. Such right of specific performance or injunctive relief
shall be Purchaser's sole and exclusive remedy (other than its right to recover
attorneys' fees and costs pursuant to Section 9.4), and shall be in lieu of, the
Purchaser's right to recover damages and to pursue any other remedies available
to the Purchaser for the Seller's breach. In any action to specifically enforce
the Seller's obligation to close the transactions contemplated by this
Agreement, the Seller shall waive the defense that there is an adequate remedy
at law or in equity and agrees that the Purchaser shall be entitled to obtain
specific performance of the Seller's obligation to close without being required
to prove actual damages.
(b) Breach by the Purchaser. The parties acknowledge that it is
difficult or impossible to determine with precision the amount of actual damages
that would or might be incurred by the Seller if the transactions contemplated
by this Agreement were not consummated as a result of a material breach by
Purchaser. Accordingly, if the Seller terminates this Agreement pursuant to
Section 8.1(b) and the Seller is not in material breach of this Agreement or if
Purchaser wrongfully terminates this Agreement, the Purchaser shall pay to the
Seller Twenty-Five Million Dollars ($25,000,000) as liquidated damages
("Liquidated Damages"). The parties hereto agree in advance that the Liquidated
Damages amount is a fair and equitable amount to reimburse Seller for damages
sustained due to Purchaser's breach of this Agreement. Such right to Liquidated
Damages shall be the Seller's sole and exclusive remedy (other than its right to
recover attorneys' fees and costs pursuant to Section 9.4), and shall be in
46
lieu of, the Seller's right to recover actual damages and to pursue any other
remedies available to the Seller for the Purchaser's breach of this Agreement.
8.4 Indemnification.
(a) Indemnification of the Purchaser.
(i) Subject to the limitations contained in this
Section 8.4, the Seller agrees to indemnify, defend and hold harmless the
Purchaser and its Affiliates (each, a "Purchaser Indemnified Party") from and
against any and all losses, liabilities, and damages, costs and expenses
(including reasonable fees and disbursements of counsel) (hereinafter
individually, a "Loss" and collectively, "Losses") which arise out of, or result
from, (A) any inaccuracy in or any breach of any representation or warranty of
the Seller contained in this Agreement or in the officer's certificate delivered
by the Seller pursuant to Section 3.2(b)(i) or the failure of each of the
representations and warranties of the Seller contained in this Agreement to be
true and correct as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of the Closing Date;
provided however, that for purposes of this Section 8.4(a)(i)(A), liability for
a failure of the representations and warranties in Section 4.15 to be true and
correct as of the Closing Date shall arise only if such failure has or would
reasonably be expected to have a Material Adverse Effect, (B) any breach of any
covenant or agreement of the Seller contained in this Agreement, (C) any
Excluded Liability, (D) any Taxes to be paid pursuant to Sections 2.7 and 6.8,
or (E) liabilities incurred by the Purchaser resulting from the operation of the
Business on or prior to the Closing Date.
(ii) Each Purchaser Indemnified Party shall give the
Seller prompt written notice of any claim, assertion, event or proceeding
(collectively, a "Purchaser Claim") by or in respect of a third party of which
such Purchaser Indemnified Party has knowledge concerning any Loss as to which
such Purchaser Indemnified Party may request indemnification hereunder provided,
however, that any failure to give such Purchaser Claim will not be deemed a
waiver of any rights of the Purchaser Indemnified Party except to the extent the
rights of the Seller are prejudiced by such failure or the Seller otherwise
suffers damage as a result of such failure. The Seller shall have the right to
direct, through counsel of its own choosing reasonably acceptable to the
Purchaser, the defense or settlement of any such Purchaser Claim at its own
expense. If the Seller elects to assume the defense of any such Purchaser Claim,
such Purchaser Indemnified Party may participate in such defense, but in such
case the expenses of such Purchaser Indemnified Party shall be paid by such the
Purchaser Indemnified Party. Such Purchaser Indemnified Party shall provide the
Seller with access to its records and personnel relating to any such Purchaser
Claim during normal business hours and shall otherwise cooperate with the Seller
in the defense or settlement thereof, and the Seller shall reimburse such
Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in
connection therewith. If the Seller elects to direct the defense of any such
Purchaser Claim, such Purchaser Indemnified Party shall not pay, or permit to be
paid, any part of any Loss arising from such Purchaser Claim, unless the Seller
consents in writing to such payment or unless the Seller, subject to the last
sentence of this subsection (ii), withdraws
47
from the defense of such asserted liability, or unless a final judgment from
which no appeal may be taken by or on behalf of the Seller is entered against
the Purchaser Indemnified Party for such Loss. If the Seller shall fail to
defend any Purchaser Claim, or if, after commencing or undertaking any such
defense, fails to prosecute or withdraws from such defense, such Purchaser
Indemnified Party shall have the right to undertake the defense or settlement
thereof, at the Seller's expense. If such Purchaser Indemnified Party assumes
the defense of such Purchaser Claim pursuant to this subsection (ii) and
proposes to settle such Purchaser Claim prior to a final judgment thereof or to
forego appeal with respect thereto, then such Purchaser Indemnified Party shall
give the Seller prompt written notice thereof and the Seller shall have the
right to participate in the settlement or assume or reassume the defense of such
Purchaser Claim.
(b) Indemnification of the Seller.
(i) Subject to the limitations contained in this
Section 8.4, the Purchaser agrees to indemnify, defend and hold harmless the
Seller and its Affiliates, (each, a "Seller Indemnified Party") from and against
any and all Losses which arise out of, or result from, (A) any inaccuracy in or
any material breach of any representation or warranty of the Purchaser contained
in this Agreement or in the officer's certificate delivered by Purchaser
pursuant to Section 3.3(c)(i), (B) any breach of any covenant or agreement of
the Purchaser contained in this Agreement, (C) any Assumed Liability or (D)
liabilities incurred by the Seller resulting from the operation of the Business
after the Closing Date.
(ii) Each Seller Indemnified Party shall give the
Purchaser prompt written notice of any claim, assertion, event or proceeding
(collectively, a "Seller Claim") by or in respect of a third party of which such
Seller Indemnified Party has knowledge concerning any Loss as to which such
Seller Indemnified Party may request indemnification hereunder provided,
however, that any failure to give such Seller Claim will not be deemed a waiver
of any rights of the Seller Indemnified Party except to the extent the rights of
the Purchaser are prejudiced by such failure or the Purchaser otherwise suffers
damage as a result of such failure. The Purchaser shall have the right to
direct, through counsel of its own choosing reasonably acceptable to the Seller,
the defense or settlement of any such Seller Claim at its own expense. If the
Purchaser elects to assume the defense of any such Seller Claim, such Seller
Indemnified Party may participate in such defense, but in such case the expenses
of such Seller Indemnified Party shall be paid by such Seller Indemnified Party.
Such Seller Indemnified Party shall provide the Purchaser with access to its
records and personnel relating to any such Seller Claim during normal business
hours and shall otherwise cooperate with the Purchaser in the defense or
settlement thereof, and the Purchaser shall reimburse such Seller Indemnified
Party for all its reasonable out-of-pocket expenses in connection therewith. If
the Purchaser elects to direct the defense of any such Seller Claim, the
Purchaser shall not pay, or permit to be paid, any part of any Loss arising from
such Seller Claim, unless the Purchaser consents in writing to such payment or
unless the Purchaser, subject to the last sentence of this subsection (b),
withdraws from the defense of such asserted liability, or unless a final
judgment from which no appeal may be taken by or on behalf of the
48
Purchaser is entered against such Seller Indemnified Party for such Loss. If the
Purchaser shall fail to defend any Seller Claim, or if, after commencing or
undertaking any such defense, fails to prosecute or withdraws from such defense,
such Seller Indemnified Party shall have the right to undertake the defense or
settlement thereof, at the Purchaser's expense. If such Seller Indemnified Party
assumes the defense of any such Seller Claim pursuant to this subsection and
proposes to settle such Seller Claim prior to a final judgment thereon or to
forego appeal with respect thereto, then such Seller Indemnified Party shall
give the Purchaser prompt written notice thereof and the Purchaser shall have
the right to participate in the settlement or assume or reassume the defense of
such Seller Claim.
(c) Limitations on Indemnification. Except for fraud, claims
made pursuant to subclause (D) of Section 8.4(a)(i), claims made pursuant to
subclause (C) of Section 8.4(a)(i) to the extent they relate to clauses (i),
(ii), (iii), (iv), (v), (vii), (viii) or (ix) of Section 2.2(c), claims made
pursuant to subclause (B) of Section 8.4(a)(i) with respect to a breach by
Seller of the provisions of Section 2.3(b) or Section 6.13, and claims arising
from the Seller's investments in any other entity that is listed on Schedule
2.1(c), no claim may be made for indemnification pursuant to this Section 8.4
with respect to any Loss, unless and until the aggregate of all Losses of the
Purchaser Indemnified Parties on the one hand, or the Seller Indemnified
Parties, on the other hand, as the case may be, exceed One Million Dollars
($1,000,000) (the "Indemnification Threshold Amount"), in which event the
Purchaser Indemnified Parties or the Seller Indemnified Parties, as the case may
be, shall be entitled to seek indemnity for the amount by which such Losses for
which indemnification is provided hereunder exceed the Indemnification Threshold
Amount. Except for fraud, claims made pursuant to subclause (D) of Section
8.4(a)(i), claims made pursuant to subclause (C) of Section 8.4(a)(i) to the
extent they relate to clauses (i), (ii), (iii), (iv), (v), (vii), (viii) or (ix)
of Section 2.2(c), or claims made pursuant to subclause (B) of Section 8.4(a)(i)
with respect to a breach by Seller of the provisions of Section 2.3(b), and
claims arising from the Seller's investments in any other entity that is listed
on Schedule 2.1(c), the Purchaser Indemnified Parties on the one hand, or the
Seller Indemnified Parties, on the other hand, as the case may be, shall not be
indemnified pursuant to this Section 8.4 with respect to any individual item of
Loss if the aggregate of all Losses for which the Purchaser Indemnified Parties
or the Seller Indemnified Parties, as the case may be, have received
indemnification pursuant to this Section 8.4 shall have exceeded Fifteen Million
Dollars ($15,000,000) plus the amount of any increase in the Post-Closing Escrow
pursuant to Section 6.13(h); provided, however, that, except for fraud or claims
made pursuant to subclause (D) of Section 8.4(a)(i) with respect to Income Taxes
payable to the State of New Hampshire arising out of the transactions
contemplated hereby, the Purchaser Indemnified Parties' sole recourse for
indemnification shall be with respect to the Post-Closing Escrow described in
Section 3.3(a) and as provided in the Post-Closing Escrow Agreement, attached
hereto as Exhibit J.
(d) Indemnification Sole Remedy. After the Closing, the right
to indemnification hereunder shall be the exclusive remedy of any party in
connection with any breach by another party of its representations, warranties,
or covenants, and such
49
indemnification shall be deemed to waive any remedy to which any party would
otherwise be entitled as a result of such breach.
ARTICLE IX.
MISCELLANEOUS
9.1 Survival. The representations, warranties, covenants and agreements
of each of the Seller and the Purchaser contained in this Agreement shall
survive the execution and delivery of this Agreement for a period of nine (9)
months from the Closing Date; provided, however, no claim may be made against
any party hereto and no party hereto shall have any liability to any other party
hereto after the applicable survival period for a representation, warranty or
covenant specified above shall have expired, except that: (i) Seller's
obligations to complete the Environmental Work pursuant to Section 6.13 shall
survive until it is so completed; (ii) in the case of fraud, claims made
pursuant to subclause (D) of Section 8.4(a)(i) or claims arising from Seller's
investments in any other entity that is listed on Schedule 2.1(c), a claim may
be made hereunder until the expiration of all applicable statutes of limitation
with respect to the subject matter thereof, (iii) claims pursuant to clauses
(i), (ii), (iii), (iv), (v), (vii), (viii) or (ix) of Section 2.2(c) may be made
until the expiration of all applicable statutes of limitation with respect to
the subject matter thereof to the extent such claims relate to a matter that is
an obligation that is known to the Seller on the date nine (9) months after the
Closing Date or a third party claim which is asserted prior to such date and,
(iv) if a claim shall have been made by a party hereto against another party
hereto prior to the expiration of the applicable survival period specified
above, then, in each case, such survival period shall be extended as it relates
to such claim until such claim has been satisfied or otherwise resolved as
provided in Section 8.4.
9.2 Like-Kind Exchange. The Purchaser may elect to effect the
acquisition of the Purchased Assets as part of a tax-deferred exchange under
Section 1031 of the Internal Revenue Code of 1986, as amended, in lieu of buying
such assets hereunder provided that such election does not hinder or delay the
consummation of the transactions contemplated by this Agreement or the
prosecution of the FCC Applications. If the Purchaser so elects, it shall
provide notice to the Seller of its election, and thereafter (i) may at any time
at or prior to Closing assign its rights under this Agreement to a "qualified
intermediary" as defined in Treas. Reg. Section 1.1031(k)-1(g)(4), subject to
all of the Seller's rights and obligations hereunder and (ii) shall promptly
provide written notice of such assignment to all parties hereto. The Purchaser
shall indemnify and hold harmless the Seller from and against all costs and
expenses arising from Purchaser's election to effect the acquisition of the
Purchased Assets as part of a tax-deferred exchange rather than a purchase
thereof, other than such costs and expenses arising from the Seller's failure to
perform its obligations hereunder with respect to such exchange.
9.3 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
50
person or such other address as any party may provide to the other parties by
notice in accordance with this Section 9.3):
if to the Purchaser, to: with copies to:
Hearst-Argyle Properties, Inc. Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxxx Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
if to the Guarantor, to: with copies to:
Hearst-Argyle Television, Inc. Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxxx Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
if to the Seller, to: with copies to:
WMUR-TV, Inc. Xxxxxx & Xxxxxxx
c/x Xxxx Communications 0000 Xxxxxxxxxxxx Xxxxxx, X.X.
X.X. Xxx 000 Xxxxx 0000
000 0xx Xxxxxx Xxxxx Xxxxxxxxxx, X.X. 00000
Xxxxxxxx, XX 00000 Attention: Xxxx X. Xxxxxxxx, Esq.
Attention: Xxxxx X. Xxxx Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
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.
9.4 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.
9.5 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, the Purchaser
51
may assign all or part of its rights under this Agreement prior to the Closing
to an Affiliate of the Purchaser or to a "qualified intermediary" with the
meaning of Treas. Reg. Sec. 1.1031(k)-1(g)(4)(iii) without the prior written
consent of the Seller; provided, however, that the Purchaser shall remain
primarily liable for all of its obligations under this Agreement.
9.6 Guaranty of Purchaser's Obligations and Liabilities. Guarantor
agrees to unconditionally guarantee any and all obligations and liabilities of
Purchaser under this Agreement and the other agreements executed in connection
herewith and any assignees of Purchaser's rights or obligations hereunder,
including without limitation, the obligations and liabilities under Section 8.3.
Guarantor acknowledges that it has agreed to this unconditional guarantee as an
inducement to Seller to enter into this Agreement.
9.7 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 that 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 9.7.
9.8 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.
9.9 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.
9.10 Third Party Beneficiaries. This Agreement is made for sole for the
benefit of the parties hereto and nothing contained herein, express or implied,
is intended to or
52
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, except for the Purchaser Indemnified
Parties and the Seller Indemnified Parties.
9.11 Governing Law. This Agreement will be governed by and construed
and interpreted in accordance with the substantive laws of the State of New
York, without giving effect to any conflicts of law, rule or principle that
might require the application of the laws of another jurisdiction.
9.12 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).
9.13 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.
9.14 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.
9.15 Risk of Loss. The risk of loss or damage to any of the Purchased
Assets to be purchased by the Purchaser hereunder (a "Loss") shall be on the
Seller prior to the Closing and thereafter shall be on the Purchaser. If any of
the Purchased Assets are materially damaged or destroyed prior to the Closing,
the Seller, at its expense, shall use its commercially reasonable efforts to
replace or repair such Purchased Assets with comparable property of like value
and quality as soon as possible before the Closing. If such Purchased Assets
have not been replaced or repaired on or before the Closing, Purchaser may elect
not to proceed with the Closing if the damage or destruction has a Material
Adverse Effect. If Purchaser elects to proceed with the Closing, the Cash
Payment shall be reduced by the cost to repair or replace such Purchased Assets.
The Seller and the Purchaser agree that in the event the Station is not
operating on the scheduled Closing Date, the Closing Date shall be rescheduled
to the date which is five
53
(5) Business Days after the Stations' operations have been so restored. In the
event of a Loss that prevents the Station's signal transmission, or materially
impairs the Stations' signal coverage area, for a period of more than forty (40)
consecutive days, the Purchaser may terminate this Agreement pursuant to Section
8.1(j).
9.16 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 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.
9.17 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;
SIGNATURE PAGE FOLLOWS]
54
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.
WMUR-TV, INC.
By: /s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: President
HEARST-ARGYLE PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
HEARST-ARGYLE TELEVISION, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
