Exhibit 1
EXECUTION COPY
--------------------------------------------------------------------------------
PURCHASE AND SALE AGREEMENT
among
FREEDOM COMMUNICATIONS, INC.,
GRANITE BROADCASTING CORPORATION,
WWMT-TV, INC.,
WLAJ, INC.
and
WWMT License, INC.
dated as of
February 18, 1998
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TABLE OF CONTENTS
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.2 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1.3 Other Definition Provisions. . . . . . . . . . . . . . . . . . . . . 22
2. Purchase of Broadcasting Assets, Purchase Price and Method of Payment . . . . . 23
2.1 Purchase of Broadcasting Assets. . . . . . . . . . . . . . . . . . . 23
2.2 Consideration; Adjustment; Allocation of Purchase Price. . . . . . . 24
2.2.1 Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . 24
2.2.2 Prorations. . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.2.3 Manner of Determining Prorations. . . . . . . . . . . . . . . 25
2.2.4 Allocation of Purchase Price. . . . . . . . . . . . . . . . . 28
2.3 Accounts Receivable. . . . . . . . . . . . . . . . . . . . . . . . . 30
2.4 Assumption of Liabilities. . . . . . . . . . . . . . . . . . . . . . 31
2.4.1 Limitation on Assumption of Obligations . . . . . . . . . . . 31
2.4.2 Assumed Obligations Relating to WWMT and WLAJ . . . . . . . . 32
2.4.3 Substitution Where Not Transferable . . . . . . . . . . . . . 33
2.5 Acquisition of WLAJ. . . . . . . . . . . . . . . . . . . . . . . . . 34
3. FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.1 Application and Request. . . . . . . . . . . . . . . . . . . . . . . 36
3.2 Final FCC Order. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4. Representations and Warranties of Granite and Seller. . . . . . . . . . . . . . 38
4.1 Organization and Standing. . . . . . . . . . . . . . . . . . . . . . 38
4.2 Authorization and Binding Obligations. . . . . . . . . . . . . . . . 39
4.3 No Contravention; Consents . . . . . . . . . . . . . . . . . . . . . 40
4.3.1 No Contravention. . . . . . . . . . . . . . . . . . . . . . . 40
4.3.2 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.4 Title to Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.4.1 Real Property . . . . . . . . . . . . . . . . . . . . . . . . 41
4.4.2 Tangible Personal Property. . . . . . . . . . . . . . . . . . 43
4.4.3 Assets Sufficient . . . . . . . . . . . . . . . . . . . . . . 43
4.5 Condition of Assets. . . . . . . . . . . . . . . . . . . . . . . . . 43
4.6 Licenses and Authorizations. . . . . . . . . . . . . . . . . . . . . 44
4.6.1 Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.6.2 Authorizations. . . . . . . . . . . . . . . . . . . . . . . . 45
4.7 Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.8 Franchises, Trademarks and Trade Names . . . . . . . . . . . . . . . 47
4.9 Employee Agreements and Plans; ERISA . . . . . . . . . . . . . . . . 48
4.9.1 Station Plans . . . . . . . . . . . . . . . . . . . . . . . . 48
4.9.2 Compliance With Laws. . . . . . . . . . . . . . . . . . . . . 49
4.9.3 Multiemployer Plans . . . . . . . . . . . . . . . . . . . . . 50
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4.9.4 Group Health Plan . . . . . . . . . . . . . . . . . . . . . . 50
4.9.5 Post-Employment Obligations . . . . . . . . . . . . . . . . . 50
4.9.6 Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
4.10 Financial Statements; Liabilities . . . . . . . . . . . . . . . . . 51
4.10.1 Financial Statements . . . . . . . . . . . . . . . . . . . . 51
4.10.2 Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . 52
4.11 Litigation; Compliance. . . . . . . . . . . . . . . . . . . . . . . 52
4.11.1 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.11.2 Violations . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.12 Cable Carriage. . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.13 Labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.14 Affiliated and Recent Transactions. . . . . . . . . . . . . . . . . 55
4.14.1 Affiliated Transactions. . . . . . . . . . . . . . . . . . . 55
4.14.2 Recent Transactions. . . . . . . . . . . . . . . . . . . . . 55
4.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
4.15.1 Filing of Tax Returns. . . . . . . . . . . . . . . . . . . . 57
4.15.2 Tax Liens. . . . . . . . . . . . . . . . . . . . . . . . . . 58
4.15.3 Parachute Payments . . . . . . . . . . . . . . . . . . . . . 58
4.16 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . 58
4.16.1 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . 58
4.16.2 Property Use . . . . . . . . . . . . . . . . . . . . . . . . 58
4.16.3 USTs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
4.16.4 Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
4.16.5 Hazardous Materials. . . . . . . . . . . . . . . . . . . . . 60
4.16.6 Relevant Property. . . . . . . . . . . . . . . . . . . . . . 60
4.17 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
5. Representations and Warranties of Buyer . . . . . . . . . . . . . . . . . . . . 61
5.1 Organization and Standing. . . . . . . . . . . . . . . . . . . . . . 61
5.2 Authorization and Binding Obligations. . . . . . . . . . . . . . . . 61
5.3 No Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . 62
5.4 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
5.5 Absence of Knowledge as to Certain Facts . . . . . . . . . . . . . . 63
5.6 Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.1 Conduct of Business to Closing . . . . . . . . . . . . . . . . . . . 63
6.1.1 Conduct of Business . . . . . . . . . . . . . . . . . . . . . 64
6.1.2 Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.1.3 Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.1.4 Employee Compensation and Benefits. . . . . . . . . . . . . . 64
6.1.5 Organization, Etc . . . . . . . . . . . . . . . . . . . . . . 65
6.1.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.1.7 Transfer of Broadcasting Assets . . . . . . . . . . . . . . . 66
6.1.8 Financial Statements; Pacing Reports. . . . . . . . . . . . . 66
6.1.9 Encumbrances. . . . . . . . . . . . . . . . . . . . . . . . . 67
6.1.10 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.1.11 Agreements . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.1.12 Consents and Approvals . . . . . . . . . . . . . . . . . . . 68
(ii)
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6.1.13 Network Affiliation Agreements . . . . . . . . . . . . . . . 68
6.1.14 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.2 Offers to Purchase . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.3 No Breach of Representations and Warranties. . . . . . . . . . . . . 70
6.4 Employee Notification Requirements . . . . . . . . . . . . . . . . . 70
6.4.1 Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.4.2 Organizing Activity . . . . . . . . . . . . . . . . . . . . . 70
6.5 Access and Information . . . . . . . . . . . . . . . . . . . . . . . 71
6.6 Title Information. . . . . . . . . . . . . . . . . . . . . . . . . . 72
6.6.1 Title Commitment. . . . . . . . . . . . . . . . . . . . . . . 72
6.6.2 Survey. . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
6.7 Buyer's Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . 73
6.7.1 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 73
6.7.2 No Breach of Representations and Warranties . . . . . . . . . 73
7. Conditions Precedent to the Obligations of the Parties. . . . . . . . . . . . . 74
7.1 Conditions Precedent to the Obligation of Buyer. . . . . . . . . . . 74
7.1.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.1.2 Accuracy of Representations and Warranties. . . . . . . . . . 74
7.1.3 Compliance with Agreement . . . . . . . . . . . . . . . . . . 74
7.1.4 No Obstructive Proceeding . . . . . . . . . . . . . . . . . . 75
7.1.5 Adverse Change. . . . . . . . . . . . . . . . . . . . . . . . 76
7.1.6 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.1.7 Officers' Certificates. . . . . . . . . . . . . . . . . . . . 77
7.1.8 Authorization . . . . . . . . . . . . . . . . . . . . . . . . 77
7.1.9 Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . 77
7.1.10 Certifications . . . . . . . . . . . . . . . . . . . . . . . 78
7.1.11 HSRA Waiting Period. . . . . . . . . . . . . . . . . . . . . 78
7.1.12 Copies of Documents. . . . . . . . . . . . . . . . . . . . . 78
7.1.13 FIRPTA Affidavits. . . . . . . . . . . . . . . . . . . . . . 78
7.1.14 Film Contracts . . . . . . . . . . . . . . . . . . . . . . . 79
7.1.15 Title Insurance Policies . . . . . . . . . . . . . . . . . . 79
7.1.16 Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . 80
7.1.17 Removal of Encumbrances. . . . . . . . . . . . . . . . . . . 80
7.1.18 Continued Affiliation. . . . . . . . . . . . . . . . . . . . 80
7.1.19 Delivery of Instruments of Conveyance and Transfer . . . . . 81
7.1.20 Tower and Antennae Surveys and Inspections . . . . . . . . . 81
7.1.21 Environmental Reports. . . . . . . . . . . . . . . . . . . . 81
7.2 Conditions to Obligations of Granite Group . . . . . . . . . . . . . 82
7.2.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . 82
7.2.2 Accuracy of Representations and Warranties. . . . . . . . . . 82
7.2.3 Compliance with Agreement . . . . . . . . . . . . . . . . . . 82
7.2.4 Delivery of Instruments of Assumption . . . . . . . . . . . . 82
7.2.5 No Obstructive Proceeding . . . . . . . . . . . . . . . . . . 83
7.2.6 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 84
7.2.7 Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . 84
7.2.8 HSRA Waiting Period . . . . . . . . . . . . . . . . . . . . . 85
7.2.9 WLAJ Documents. . . . . . . . . . . . . . . . . . . . . . . . 85
7.2.10 Authorizations . . . . . . . . . . . . . . . . . . . . . . . 85
(iii)
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8. Instruments of Conveyance and Transfer. . . . . . . . . . . . . . . . . . . . . 85
8.1 Instruments of Conveyance and Transfer of Real Property. . . . . . . 85
8.1.1 Real Property . . . . . . . . . . . . . . . . . . . . . . . . 86
8.2 Instruments of Conveyance and Transfer of Personal Property. . . . . 86
8.2.1 Assignment of Leases. . . . . . . . . . . . . . . . . . . . . 87
8.2.2 Bills of Sale . . . . . . . . . . . . . . . . . . . . . . . . 87
8.2.3 Assignments of Licenses . . . . . . . . . . . . . . . . . . . 87
8.2.4 Assignments of Contracts. . . . . . . . . . . . . . . . . . . 87
8.2.5 Other Documents . . . . . . . . . . . . . . . . . . . . . . . 87
9. Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.1 Buyer to Hire. . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.2 Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
9.3 No Liability for Employee Plans. . . . . . . . . . . . . . . . . . . 89
9.4 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
10. Risk of Loss; Failure of Broadcast Transmission. . . . . . . . . . . . . . . . 91
10.1 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
10.2 Failure of Broadcast Transmission . . . . . . . . . . . . . . . . . 91
11. Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
12. Possession and Control of WWMT and WLAJ. . . . . . . . . . . . . . . . . . . . 94
13. Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
14. Survival; Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . 95
14.1 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
14.2 Granite Group Indemnification - Breach. . . . . . . . . . . . . . . 96
14.3 Granite Group Indemnification - Liabilities . . . . . . . . . . . . 96
14.4 Buyer's Indemnification . . . . . . . . . . . . . . . . . . . . . . 98
14.4.1 Buyer's Indemnification - Breach . . . . . . . . . . . . . . 98
14.4.2 Buyer's Indemnification - Liabilities. . . . . . . . . . . . 98
14.5 Granite Group's Obligations . . . . . . . . . . . . . . . . . . . . 98
14.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
14.7 Indemnification Claim . . . . . . . . . . . . . . . . . . . . . . . 99
14.8 Notice of Claim . . . . . . . . . . . . . . . . . . . . . . . . . .100
14.9 Indemnitor's Obligations. . . . . . . . . . . . . . . . . . . . . .102
14.11 Consent of Indemnification . . . . . . . . . . . . . . . . . . . .102
14.12 Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . .102
14.13 Limitation on Liability. . . . . . . . . . . . . . . . . . . . . .102
(iv)
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15. Xxxx-Xxxxx-Xxxxxx Filings. . . . . . . . . . . . . . . . . . . . . . . . . . .103
16. Environmental Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . .103
16.1 Phase I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103
16.2 Environmental Condition . . . . . . . . . . . . . . . . . . . . . .103
16.3 Granite Group's Obligations . . . . . . . . . . . . . . . . . . . .104
17. Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104
17.1 Events of Termination . . . . . . . . . . . . . . . . . . . . . . .104
17.1.1 Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . . .104
17.1.2 Granite. . . . . . . . . . . . . . . . . . . . . . . . . . .105
17.1.3 Mutual Consent . . . . . . . . . . . . . . . . . . . . . . .105
17.1.4 By Granite on Breach . . . . . . . . . . . . . . . . . . . .105
17.1.5 By Buyer on Breach . . . . . . . . . . . . . . . . . . . . .105
17.1.6 Granite or Buyer . . . . . . . . . . . . . . . . . . . . . .105
17.1.7 Other. . . . . . . . . . . . . . . . . . . . . . . . . . . .105
17.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . .105
17.2.1 Effect . . . . . . . . . . . . . . . . . . . . . . . . . . .105
17.2.2 Generally. . . . . . . . . . . . . . . . . . . . . . . . . .106
18. Covenant Against Competition; Confidentiality. . . . . . . . . . . . . . . . .106
18.1 Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . . .106
18.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . .107
18.3 Specific Performance. . . . . . . . . . . . . . . . . . . . . . . .108
19. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108
19.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108
19.2 Costs, Expenses Etc . . . . . . . . . . . . . . . . . . . . . . . .109
19.3 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . .110
19.4 Notice of Proceedings . . . . . . . . . . . . . . . . . . . . . . .110
19.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
19.6 Headings and Entire Agreement; Amendment. . . . . . . . . . . . . .112
19.7 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
19.8 Binding Effect and Assignment . . . . . . . . . . . . . . . . . . .113
19.9 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . .113
19.10 Schedules and Attachments. . . . . . . . . . . . . . . . . . . . .113
19.11 Rights Cumulative. . . . . . . . . . . . . . . . . . . . . . . . .114
19.12 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . .114
19.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . .114
19.14 Third Party Rights . . . . . . . . . . . . . . . . . . . . . . . .114
19.15 Time of Essence. . . . . . . . . . . . . . . . . . . . . . . . . .114
19.16 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . .114
19.17 Specific Performance . . . . . . . . . . . . . . . . . . . . . . .115
19.18 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . .115
(v)
SCHEDULES
Schedule A-1 - Owned and Leased Real Property of WWMT
Schedule A-2 - Owned and Leased Real Property of WLAJ
Schedule B-1 - Owned and Leased Tangible Personal Property of WWMT
Schedule B-2 - Owned and Leased Tangible Personal Property of WLAJ
Schedule C-1 - Other Operating Contracts of WWMT
Schedule C-2 - Other Operating Contracts of WLAJ
Schedule D-1 - Franchises, Trademarks and Tradenames of WWMT
Schedule D-2 - Franchises, Trademarks and Tradenames of WLAJ
Schedule E-1 - WWMT Licenses
Schedule E-2 - WLAJ Licenses
Schedule F - Excluded Contracts
Schedule G - Loan Agreement
Schedule 2.2.2 - Trade Agreements
Schedule 4.3.1 - Consents and Waivers
Schedule 4.5 - Condition of Assets
Schedule 4.5.2 - Capital Expenditures
Schedule 4.9 - Station Plans
Schedule 4.10.1 - Financial Statements
Schedule 4.10.2 - Liabilities
Schedule 4.11 - Litigation
Schedule 4.12 - Cable Carriage
Schedule 4.14.1 - Affiliated Transactions
Schedule 4.14.2 - Recent Transactions
Schedule 4.16.1 - Environmental Matters - Compliance
Schedule 4.16.2 - Environmental Matters - Hazardous Materials
Schedule 4.16.3 - Environmental Matters - USTs
Schedule 4.16.4 - Environmental Matters - Claims
Schedule 6.1.4 - Employee Compensation and Benefits
Schedule 6.1.5 - Business Organization
Schedule 6.1.6 - Insurance Policies
Schedule 7.1.6 - Closing Consents
(vii)
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, dated as of February 18, 1998, among FREEDOM
COMMUNICATIONS, INC., a California corporation ("Buyer"), GRANITE BROADCASTING
CORPORATION, a Delaware corporation ("Granite"), WWMT-TV, INC., a Delaware
corporation ("Seller"), WLAJ, INC., a Delaware corporation ("WLAJ, Inc."), and
WWMT License, Inc., a Delaware corporation ("WWMT License, Inc.").
WITNESSETH:
WHEREAS, Seller owns and operates, under license from the Federal
Communications Commission (the "FCC"), television station WWMT-TV, Channel 3,
Kalamazoo, Michigan and its auxiliary facilities (collectively, "WWMT"),
including all the WWMT Assets (as hereinafter defined);
WHEREAS, WWMT License, Inc. is the licensee of the WWMT Licenses;
WHEREAS, Seller and WLAJ, Inc. are wholly owned subsidiaries of
Granite, and WWMT License, Inc. is a wholly owned subsidiary of Seller;
WHEREAS, Lansing (as hereinafter defined) is the licensee of
the WLAJ Licenses (as hereinafter defined) and owns the WLAJ Lansing Assets
(as hereinafter defined);
WHEREAS, Granite owns all of the WLAJ Granite Assets (as
hereinafter defined), has entered into the WLAJ Purchase Agreement (as
hereinafter defined) to purchase the WLAJ Lansing Assets from Lansing and to
have Lansing assign to Granite the WLAJ Licenses
1
and currently operates WLAJ pursuant to the Time Brokerage Agreement (as
hereinafter defined);
WHEREAS, Buyer desires to purchase all of the Broadcasting
Assets (as hereinafter defined) and to obtain an assignment of all Station
Licenses (as hereinafter defined) to Buyer;
WHEREAS, Granite and Seller desire to sell all of the WWMT
Assets and the WLAJ Granite Assets to Buyer and WWMT License, Inc. desires to
assign to Buyer all WWMT Licenses, all in accordance with the terms and
conditions herein set forth;
WHEREAS, Buyer, in addition to purchasing the WLAJ Granite
Assets, desires to purchase all of the WLAJ Lansing Assets and to have
assigned to Buyer the WLAJ Licenses (as hereinafter defined) and, in
connection therewith, (i) Buyer desires Granite to consummate the transactions
contemplated by the WLAJ Purchase Agreement and as of the Closing under this
Agreement sell the WLAJ Lansing Assets to Buyer and assign the WLAJ Licenses
to Buyer or (ii) in the event the transactions contemplated by the WLAJ
Purchase Agreement have not closed as of the Closing under this Agreement,
Buyer desires to obtain from Granite an assignment of all of Granite's rights
and interests in, and assume all of Granite's obligations under, the WLAJ
Documents (as hereinafter defined), amended as provided herein, and Granite
desires to do either of the foregoing, all in accordance with the terms and
conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual premises
contained herein and for other good and valuable consideration,
2
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto hereby agree as follows:
1. Definitions. As used herein, the following terms shall
have the following meanings:
1.1 Defined Terms.
"Accounts Receivable" means 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 of the Stations prior to the Closing Date, including any rights of
Seller or Granite with respect to any third party collection procedures or
any other actions or proceedings that have been commenced in connection
therewith.
"Affiliate" (and, with a correlative meaning,
"Affiliated") shall mean, with respect to any Person (as hereinafter
defined), any other Person that directly, or through one or more
intermediaries, controls or is controlled by or is under common control with
such first Person, and, if such a Person is an individual, any member of the
immediate family (including parents, spouse and children) of such individual
and any trust whose principal beneficiary is such individual or one or more
members of such immediate family and any Person who is controlled by any such
member or trust. As used in this definition, "control" (including, with
correlative meanings, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of
3
management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Agreement" means this Purchase and Sale Agreement, as
the same may be amended, supplemented or otherwise modified from time to time.
"Assumed Obligations" has the meaning set forth in
Section 2.4.2 hereof.
"Base Price" has the meaning set forth in Section 2.2.1
hereof.
"Broadcasting Assets" means the Granite Broadcasting
Assets and the WLAJ Lansing Assets.
"Business Employees" has the meaning set forth in Section
9.1 hereof.
"Buyer" has the meaning set forth in the recitals hereto.
"CBS" has the meaning set forth in Section 6.1.13 hereof.
"CBS Affiliation Agreement" has the meaning set forth in
Section 6.1.13 hereof.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601
- 9675, and the regulations thereunder, as in effect from time to time.
"Claims" means any of the following that arise from
Environmental Conditions and pertain to the Stations or relate to
4
the Broadcasting Assets: pending demands, suits or causes of action for
damages, including but not limited to, those alleged to result from exposure
to or injury from Environmental Conditions by any Person, personal injury or
property damage of any kind; actual or threatened damages to natural
resources; pending or threatened recovery of response costs (as defined in
Section 104 of CERCLA and applicable state law), or administrative or
judicial orders directing the performance of investigations or response,
removal or remedial actions, as defined under CERCLA or analogous concepts
under applicable state law; claims for restitution, contribution or equitable
indemnity from third parties or any Governmental Authority; fines, penalties
or Encumbrances against property; injunctive relief; or other notices of
violation from federal, state or local Governmental Authorities.
"Closing" means the consummation of the transactions
contemplated hereby.
"Closing Date" means a time and business date to be
selected by Buyer and Granite, which date shall not be less than three (3)
nor more than ten (10) business days after the date on which the conditions
specified in Section 7 hereof shall have been met or waived by the
beneficiary thereof, unless otherwise provided for herein or if Buyer and
Granite mutually agree to a different time and date.
"Code" means the Internal Revenue Code of 1986, as
amended, and the regulations thereunder, as in effect from time to time.
5
"Communications Act" means the Communications Act of
1934, as amended, and the rules, regulations and policies promulgated
thereunder, as in effect from time to time.
"Consultant" has the meaning set forth in Section 16.1
hereof.
"Contracts" has the meaning set forth in Section 4.7
hereof.
"Controlled Group" means Granite, Seller and any Person
(whether or not incorporated) that is under common control (as defined in
section 414(c) of the Code) with Granite, any member of an affiliated service
group (as defined in section 414(m) of the Code) that includes Granite, and
any entity that is treated as being under common control with Granite under
section 414(o) of the Code.
"Controlled Group Plan" means an Employee Plan that, at
any time, has been entered into, maintained or sponsored by one or more
members of the Controlled Group, or to which one or more members of the
Controlled Group has or may have had an obligation to contribute.
"Date of Notice of Claim" has the meaning set forth in
Section 14.10 hereof.
"Employee Plan" means any employee benefit plan, as
defined in section 3(3) of ERISA (as hereinafter defined), and any other
compensation or benefit plan, agreement, program, policy or arrangement,
whether or not subject to ERISA, whether written or oral, whether maintained
for current employees, former employees,
6
or retirees, and whether currently in effect or terminated or frozen,
including, without limitation, defined benefit pension plans, defined
contribution pension plans, medical and other welfare plans and any
retirement, deferred compensation, medical, dental, cafeteria, stock
purchase, stock option, savings, severance, bonus, incentive, vacation, or
sick pay plan, agreement, program, policy or arrangement; excluding in all
instances employment agreements.
"Encumbrances" has the meaning set forth in Section 4.4.1
hereof.
"Environmental Assessment Report" has the meaning set
forth in Section 16.1 hereof.
"Environmental Conditions" means conditions of the
environment arising from or relating to the presence or storage of Hazardous
Materials (as hereinafter defined) in or on the flora, fauna, surface, soil,
surface water, groundwater, drinking water, subsurface strata, or ambient air
on, under, in, about, or adjacent to the assets listed on Schedule A-1 or A-2
or referred to in Section 4.16 hereof.
"Environmental Laws" means any applicable statute,
enactment, ordinance, rule, regulation, decision, judgment, decree, permit or
license, whether local, state, territorial or national, in force or effect as
of the Closing Date:
(a) relating to emissions, discharges, spills, releases or
threatened releases of Hazardous Materials into air, water, or land;
7
(b) relating to the use, treatment, storage, disposal,
handling, manufacturing or shipment of Hazardous Material;
(c) relating to the regulation of storage tanks; or
(d) otherwise relating to pollution or protection of human
health and the environment.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and the regulations thereunder, as in effect from time
to time.
"Excluded Assets" means: (a) cash or cash equivalents on
hand and in bank accounts; (b) Seller's and/or Granite's prepaid business
(including, liability, business interruption and the like) and group
insurance premiums; (c) any prepaid expenses for which the Stations and/or
the Broadcasting Assets will not receive a benefit after the Closing; (d) the
WLAJ Lansing Assets and the Excluded WLAJ Assets; (e) Accounts Receivable;
(f) assets of Granite and its Affiliates not located in or about Lansing,
Grand Rapids, Yankee Springs or Kalamazoo, Michigan and any intellectual
property rights used by Granite or its Affiliates for stations other than the
Stations, provided, however, that any such assets or intellectual property
rights are not used principally in the operations of the Stations; and (g)
the Contracts and other agreements set forth on Schedules F or 4.9 hereto.
"Excluded WLAJ Assets" means Excluded WLAJ Assets as
defined in the WLAJ Purchase Agreement.
8
"FCC" has the meaning set forth in the recitals hereto.
"FCC Applications" has the meaning set forth in Section
3.1 hereof.
"Final Order" means an order of the FCC granting its
consent to the applications referred to in Section 3.1 hereof, which order
has become final. For purposes of this Agreement, "final" shall mean action
by the FCC: (a) which has not been vacated, reversed, stayed, set aside,
annulled or suspended; (b) with respect to which no timely appeal, timely
request for stay, or timely petition for rehearing, reconsideration or review
by any Person or governmental entity or by the FCC on its motion, is pending;
and (c) as to which the time for filing any such timely appeal, timely
request, timely petition or for the reconsideration or review by the FCC on
its own motion, has expired.
"Financial Information" has the meaning set forth in
Section 4.10 hereof.
"Financial Statements" has the meaning set forth in
Section 4.10 hereof.
"First Union" means First Union National Bank of North
Carolina.
"Follow-On Investigation" has the meaning set forth in
Section 16.2 hereof.
"GAAP" means generally accepted accounting principles in
effect in the United States of America at the time of determination, and
which are consistently applied.
9
"Governmental Authority" means any court or federal,
state, municipal or other governmental authority, department, commission,
board, agency or instrumentality, foreign or domestic, or any employee or
agent thereof.
"Granite" has the meaning set forth in the recitals
hereto.
"Granite Broadcasting Assets" means the WWMT Assets and
the WLAJ Granite Assets.
"Granite Group" means Granite, Seller, WWMT License, Inc.
and WLAJ, Inc.
"Guaranty" means the Guaranty and Note Purchase Agreement
dated October 17, 1996 among Granite, First Union and Lansing.
"Hazardous Materials" means hazardous or toxic wastes,
chemicals, substances, constituents, pollutants or related material, whether
solids, liquids, or gases, defined or regulated under Section 101(14) of
CERCLA; RCRA; the Toxic Substances Control Act, 15 U.S.C. Section S 2601 -
2671; the Safe Drinking Water Act, 42 U.S.C. Sections 300f - 300j-ll; the
Clean Air Act, as amended, 42 U.S.C. Sections 7401 - 7671q; the Federal Water
Pollution Control Act, 33 U.S.C. Sections 1251 - 1387; the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001 - 11050; or
any similar federal or state laws.
"HRSA" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the regulations thereunder, as in effect from
time to time.
10
"Indemnitee" has the meaning set forth in Section 14.7
hereof.
"Indemnitor" has the meaning set forth in Section 14.7
hereof.
"Information" has the meaning set forth in Section 19.18
hereof.
"Knowledge" means, whenever a phrase herein is qualified
by a party's knowledge or a similar phrase, the knowledge of a responsible
corporate officer or management personnel after reasonable inquiry and
investigation; "actual knowledge" means, whenever a phrase herein is
qualified by a party's actual knowledge or a similar phrase, the actual
knowledge, without inquiry or investigation, of a responsible corporate
officer or management personnel.
"Lansing" means Lansing 53, Inc., a Michigan corporation.
"Liabilities" means all liabilities, obligations,
indebtedness, commitments, and any other items constituting "liabilities"
under GAAP, whether direct or indirect, absolute, accrued, contingent,
liquidated or unliquidated, or otherwise, asserted or unasserted, including
without limitation trade accounts payable; accrued liabilities for payroll or
other compensation or benefits and related expenses; obligations or
liabilities for Taxes; obligations or liabilities for violations of any law,
rule, regulation, order or conditions of permits or licenses; liabilities or
obligations relating to claims of libel,
11
slander or other defamation or violations of rights of privacy, rights to
protect a likeness or other similar rights; obligations or liabilities
relating to infringement of any tradename, trademark, copyright, trade secret
or other proprietary or intellectual property right; obligations or
liabilities for Environmental Conditions; obligations or liabilities for
borrowed money or for the deferred purchase price of property or services;
obligations secured by any Encumbrance on or with respect to any property or
assets owned by a Person or acquired by a Person subject thereto (whether or
not the obligation secured thereby shall have been assumed); obligations
under direct or indirect guarantees, and other obligations (contingent or
otherwise) to purchase, to provide funds for payment or otherwise acquire
property or to assure a creditor against loss, obligations to reimburse the
issuer with respect to letters of credit; liabilities in respect of unfunded
accrued vested benefits under any Employee Plan; and any capitalized lease
obligations.
"Loan" means a $12.0 million senior secured loan made by
First Union to Lansing and guaranteed by Lansing's stockholder and Granite,
pursuant to the terms and conditions of the Loan Agreement.
"Loan Agreement" means the Credit Agreement, dated
October 17, 1996, as amended by that certain First Amendment dated as of
October 10, 1997, among First Union and Lansing, and the following documents
entered into in connection therewith listed on Schedule G hereto.
12
"Network" means CBS, Fox Broadcasting Company, the National Broadcasting
Company or the American Broadcasting Company.
"Notice of Claim" has the meaning set forth in Section 14.7 hereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means an employee pension benefit plan as defined in
Section 3(2) of ERISA.
"Permitted Encumbrances" has the meaning set forth in Section 4.4.1
hereof.
"Person" shall mean any natural person, corporation, partnership,
limited liability company, firm, joint venture, joint-stock company, trust,
association, unincorporated entity of any kind, trust, governmental or
regulatory body or other entity.
"Pre-Closing Incurred Obligations" has the meaning set forth in
Section 2.2.3(a) hereof.
"Pre-Closing Paid Obligations" has the meaning set forth in Section
2.2.3(a) hereof.
"Proceeds" has the meaning set forth in Section 10.1 hereof.
"Prohibited Business" has the meaning set forth in Section 18.1
hereof.
"Prohibited Transaction" has the meaning specified in
Sections 406 through 408 of ERISA and Section 4975 of the Code.
"Prorated Obligations" has the meaning set forth in Section 2.2.3(a)
hereof.
13
"Proration Statement" has the meaning set forth in Section 2.2.3(a)
hereof.
"Purchase Price" has the meaning set forth in Section 2.2.1 hereof.
"RCRA" means the Resource Conservation and Recovery Act, as amended,
42 U.S.C. Sections 6901 - 6992k, and the regulations thereunder, as in effect
from time to time.
"Retained Liabilities" means all Liabilities and other obligations of
any member of the Granite Group which are not Assumed Obligations, including but
not limited to (except to the extent of Prorated Obligations): (a) any
intercompany debts, obligations or Liabilities or any debts, obligations or
Liabilities owing from any member of the Granite Group to any of their
respective Affiliates; (b) federal, state, local and other Liabilities for
Taxes; (c) amounts payable for business (including casualty, liability, business
interruption and the like) or group insurance premiums; (d) Liabilities or other
obligations under any Employee Plan of any member of the Granite Group or any of
their respective Affiliates; (e) any funded indebtedness or other obligations or
Liabilities relating to borrowed money; (f) trade or other accounts payable,
accrued payroll or other compensation or benefits, and employee sales
commissions; (g) credit balances for deferred income Taxes; (h) any Liabilities
incurred with respect to the ownership or operation of the Stations or Granite
Broadcasting Assets prior to the Closing Date; (i) any Liability or obligation
for any breach or default by Granite or Seller under
14
the WLAJ Documents; and (j) any Liability or other obligation which is otherwise
specifically retained by Seller or Granite pursuant hereto.
"Seller" has the meaning set forth in the recitals hereto.
"Stations" means WWMT and WLAJ.
"Station Licenses" means the WWMT Licenses and the WLAJ Licenses.
"Station Plan" has the meaning set forth in Section 4.9.1 hereof.
"Tax" or "Taxes" means all federal, state, local, foreign and other taxes,
including income, franchise, estimated income, gross receipts, employment,
license, payroll, excise, stamp, social security, unemployment, real
property, commercial rent, occupancy, personal property, sales, use, transfer
and withholding taxes, including interest, penalties and additions in
connection therewith, whether disputed or not.
"Time Brokerage Agreement" means the Time Brokerage Agreement, dated
as of October 17, 1996, as amended by that certain First Amendment to Time
Brokerage Agreement dated as of September 1997, among Lansing, Lansing's
stockholder and Granite.
"Title Policies" has the meaning set forth in Section 7.1.15(a)
hereof.
"WLAJ" means television station WLAJ-TV, Channel 53, Lansing,
Michigan.
15
"WLAJ Application" has the meaning set forth in Section 3.1 hereof.
"WLAJ Granite Assets" means all real, personal and mixed assets, both
tangible and intangible, of every kind, nature and description whether or not
carried or reflected on the books of Granite or any Affiliate of Granite, owned
or held and used by or held for use by any member of the Granite Group in
connection with its operation of WLAJ under the Time Brokerage Agreement, other
than the Excluded Assets, which are expressly excluded from the definition of
WLAJ Granite Assets, and, except as otherwise provided in this Agreement, WLAJ
Granite Assets shall include all such assets existing on the date of this
Agreement and all such assets acquired between the date hereof and the Closing
Date, including, without limitation (other than Excluded Assets):
(a) all real property, leasehold interests, estates and
improvements of every kind and description, together with all buildings,
structures and improvements of every nature located thereon, owned or held and
used by or held for use by any member of the Granite Group in connection with
its operation of WLAJ under the Time Brokerage Agreement as of the date hereof
(including without limitation those that are set forth in Schedule A-2 hereto)
and acquired between the date hereof and the Closing Date;
(b) all broadcasting and other equipment, office furniture, fixtures,
tapes, machinery, office materials and supplies, spare parts, tubes and other
tangible personal property
16
of every kind and description owned or held and used by or held for use by any
member of the Granite Group in connection with its operation of WLAJ under the
Time Brokerage Agreement on the date hereof, including without limitation those
set forth on Schedule B-2 hereto, and any additions, improvements and
replacements thereto between the date hereof and the Closing Date, together with
all warranties, rights and claims relating to the assets listed in this
paragraph (b);
(c) all Contracts and commitments relating to the business and
operations of WLAJ to which any member of the Granite Group is a party, other
than those listed on Schedules F or 4.9 hereto, on the date hereof, including
without limitation those contracts, agreements and commitments set forth on
Schedules A-2 (Owned and Leased Real Property of WLAJ), B-2 (Owned and Leased
Tangible Personal Property of WLAJ) and C-2 (Other Operating Contracts of WLAJ)
hereto (which Schedules shall also specify those contracts the assignment of
which requires third-party consent), together with all contracts, agreements and
commitments, that have been entered into between the date hereof and the Closing
as expressly permitted by this Agreement;
(d) the books and records relating to the operation of WLAJ by
any member of the Granite Group under the Time Brokerage Agreement;
(e) all franchises, trademarks, patents, tradenames, service
marks, promotional materials, slogans, intellectual property rights and
interests, call letters,
17
copyrights in literary property of any kind, know-how jingles and privileges, if
any, owned or held and used by or held for use by any member of the Granite
Group in connection with its operation of WLAJ under the Time Brokerage
Agreement as of the date hereof, including, without limitation, those set forth
in Schedule D-2 hereto, and those acquired between the date hereof and the
Closing; and
(f) all of Granite's and Seller's prepaid expenses useful by
Buyer in connection with its operation of WLAJ under the Time Brokerage
Agreement after the Closing.
"WLAJ Documents" means the WLAJ Purchase Agreement, the Time Brokerage
Agreement, the Loan Agreement and the Guaranty.
"WLAJ Employees" has the meaning set forth in Section 4.13 hereof.
"WLAJ, Inc." means WLAJ, Inc., a Delaware corporation and wholly owned
subsidiary of Granite.
"WLAJ Lansing Assets" means the "Broadcasting Assets" as defined in
the WLAJ Purchase Agreement, except to the extent the same have been replaced by
WLAJ Granite Assets or to the extent such assets are no longer needed in the
operation of WLAJ.
"WLAJ Licenses" means all licenses, permits and authorizations issued
or granted by the FCC for the ownership and operation of WLAJ and all
applications therefor, all of which are listed on Schedule E-2 hereto, together
with any renewals, extensions or modifications thereof and additions thereto
between the date hereof and the Closing.
18
"WLAJ Purchase Agreement" means the Purchase and Sale Agreement,
between Granite, Lansing and Lansing's stockholder dated as of October 17, 1996,
as amended by that certain First Amendment to Purchase and Sale Agreement dated
as of September 1997.
"WWMT" has the meaning set forth in the recitals hereto.
"WWMT Application" has the meaning set forth in Section 3.1 hereof.
"WWMT Assets" means all real, personal and mixed assets, both tangible
and intangible (including the business of WWMT as a "going concern"), of every
kind, nature and description whether or not carried or reflected on the books of
WWMT, Seller or any Affiliate of Seller, owned or held and used or held for use
by Seller or any Affiliate thereof in connection with the business and
operations of WWMT, other than the Excluded Assets, which are expressly excluded
from the definition of WWMT Assets and shall be retained by Seller and/or
Granite, and except as otherwise provided in this Agreement, WWMT Assets shall
include all such assets existing on the date of this Agreement and all such
assets acquired between the date hereof and the Closing as permitted by and
subject to the terms of this Agreement, including, without limitation (other
than Excluded Assets):
(a) all real property, leasehold interests and estates and
improvements of every kind and description, together with all buildings,
structures and improvements of every nature located thereon, owned or held and
used or held for use by
19
Seller or Granite in connection with the business and operations of WWMT as of
the date hereof (including without limitation those which are set forth in
Schedule A-1 hereto) and acquired between the date hereof and the Closing as
permitted by and subject to the terms of this Agreement;
(b) all broadcasting and other equipment, office furniture, fixtures,
tapes, office materials and supplies, spare parts, tubes and other tangible
personal property of every kind and description owned, leased or held and
used or held for use by Seller or Granite in connection with the business and
operations of WWMT on the date hereof, including without limitation the
assets set forth in Schedule B-1 hereto, and any additions, improvements and
replacements thereto between the date hereof and the Closing Date as
permitted by and subject to the terms of this Agreement, together with all
warranties, rights and claims relating to the assets listed in this paragraph
(b);
(c) all Contracts and commitments relating to the business and
operations of WWMT on the date hereof, including without limitation those
contracts, agreements and commitments set forth on Schedules A-1 (Owned and
Leased Real Property of WWMT), B-1 (Owned and Leased Tangible Personal
Property of WWMT) and C-1 (Other Operating Contracts of WWMT) hereto (which
shall also specify those contracts the assignment of which requires
third-party consent), together with all contracts, agreements and commitments
which have been entered into between the date hereof
20
and the Closing as permitted by and subject to the terms of this Agreement;
(d) (i) all WWMT Licenses and (ii) any other permits, licenses and
authorizations issued or granted by any Governmental Authority held and used
or held for use by Seller or Granite in connection with the business and
operations of WWMT as of the date hereof, and any additions, renewals and
extensions thereto between the date hereof and the Closing as permitted by
and subject to the terms of this Agreement;
(e) the books and records of WWMT in accordance with Section 13 hereof;
(f) all franchises, trademarks, patents, tradenames, service marks,
promotional materials, slogans, intellectual property rights, call letters,
telephone numbers, copyrights in literary property of any kind, know-how,
jingles and privileges, if any, owned or held and used or held for use by
Seller or Granite in connection with the business and operations of WWMT as
of the date hereof, including, without limitation, those set forth in
Schedule D-1 hereto, and those acquired between the date hereof and the
Closing as permitted by and subject to the terms of this Agreement;
(g) all of Seller's and Granite's goodwill in and going concern value of
WWMT;
(h) all of Seller's and Granite's prepaid expenses useful by Buyer in the
operation of WWMT after the Closing; and
21
(i) all current assets of Seller or Granite related exclusively to the
Stations, other than current assets constituting Excluded Assets.
"WWMT License, Inc." means WWMT License, Inc., a Delaware corporation
and a wholly-owned subsidiary of Seller.
"WWMT Licenses" means all licenses, permits and authorizations issued
or granted by the FCC for the ownership and operation of WWMT and all
applications therefor, all of which are listed in Schedule E-1 hereto, together
with any renewals, extensions or modifications thereof and additions thereto
between the date hereof and the Closing as permitted by and subject to the terms
of this Agreement.
1.2 Accounting Terms. All terms of an accounting nature not specifically
defined herein shall have the respective meanings given to them under GAAP.
1.3 Other Definition Provisions. The masculine form of words includes the
feminine and the neuter and vice versa, and, unless the context otherwise
requires, the singular form of words includes the plural and vice versa. The
words "herein," "hereof," "hereunder" and other words of similar import when
used in this Agreement refer to this Agreement as a whole, and not to any
particular section or subsection.
22
2. Purchase of Broadcasting Assets, Purchase Price and Method of
Payment.
2.1 Purchase of Broadcasting Assets Subject to the terms and
upon satisfaction of the conditions contained in this Agreement, at the
Closing:
(a) The members of the Granite Group shall sell, assign,
transfer, convey and deliver to Buyer, and Buyer shall purchase from the
members of the Granite Group, all of their respective rights, title and
interests in the Granite Broadcasting Assets (excluding the WWMT Licenses);
(b) WWMT License, Inc. shall assign and deliver to Buyer,
and Buyer shall accept assignment from WWMT License, Inc. of, the WWMT
Licenses;
(c) Subject to the provisions of Section 2.5 hereof,
Granite and/or Seller shall assign and convey to Buyer, and Buyer shall
accept assignment from Granite of, all of Granite's rights and obligations
under the WLAJ Documents; and
(d) Granite and Seller shall transfer and deliver to
Buyer, and Buyer shall assume, the Assumed Obligations in accordance with
Section 2.4 hereof.
The Closing shall take place at the offices of Akin, Gump, Strauss, Xxxxx
& Xxxx, L.L.P., 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X.
00000, or such other place as Buyer and Granite may agree.
23
2.2 Consideration; Adjustment; Allocation of Purchase Price.
2.2.1 Purchase Price. For and in full consideration of the
assignments, conveyances, and transfers described herein Buyer shall pay to
Granite an amount equal to the sum of One Hundred Fifty Million and Six
Hundred Thousand Dollars ($150,600,000.00)(the "Base Price"), adjusted as
provided in Sections 2.2.2 and 2.2.3 below (the "Purchase Price").
2.2.2 Prorations. The Base Price shall be increased or decreased
as required to effectuate the proration as of the Closing Date of operating
expenses incurred in the ordinary course of business and arising from the
operations of the Stations by the Granite Group. Such expenses, shall
include tower rental, business and license fees, utility charges, real and
personal property taxes and assessments levied against the WWMT Assets or the
WLAJ Granite Assets, property and equipment rentals, applicable copyright or
other fees, sales and service charges, employee compensation and related
Taxes, reimbursement obligations under the Time Brokerage Agreement and
similar prepaid and deferred items, shall be prorated between Buyer and
Granite in accordance with the principle that Granite shall be responsible
for all expenses, costs and Liabilities allocable to the operation or
ownership of the Stations by any member of the Granite Group for the period
prior to the Closing Date, and Buyer shall be responsible for all expenses,
costs and Liabilities allocable to the operation of the Stations by Buyer for
the period after and
24
including the Closing Date as determined in accordance with Section 2.2.3
below, subject to the following:
(a) Payments due under film or programming license
agreements for the month in which the Closing occurs shall be prorated based
on the number of days in such month on or before the Closing Date and the
number of days in such month after and including the Closing Date.
(b) There shall be no adjustment for any difference
between the value of the goods or services to be received by any member of
the Granite Group as of the Closing under trade or barter agreements relating
to the Stations and the value of any advertising time remaining to be run by
any member of the Granite Group as of the Closing under trade or barter
agreements relating to the Stations, provided such agreements and the
remaining advertising obligations thereunder are in all material respects
disclosed to Buyer on Schedule 2.2.2.
(c) Real and personal property taxes shall be prorated
based upon the latest available tax information from the applicable
Governmental Authorities according to the fiscal years of the respective
Governmental Authorities for which the taxes are collected.
(d) No intercompany expenses shall constitute Prorated
Obligations.
2.2.3 Manner of Determining Prorations. The Purchase Price,
taking into account the adjustments and prorations
25
outlined in Section 2.2.2, shall be determined in accordance with the
following procedures:
(a) Prorated Obligations. Granite shall, no later than
five (5) business days prior to the Closing Date, prepare a document (the
"Proration Statement"), a copy of the form of which is to be delivered by
Granite not less than five days prior to the Closing for Buyer's review and
approval, listing by item, all of the expenses, costs, obligations and other
Liabilities of the Stations of the type identified in Section 2.2.2 that are
attributable solely to the operation of the Stations, either in whole or in
part, during the period on or after the Closing Date ("Prorated Obligations")
but either payable in advance prior to the Closing Date or in arrears after
the Closing Date. For each Prorated Obligation, there shall be listed (i)
the estimated aggregate amount thereof remaining to be paid on or after the
Closing Date, (ii) the amount of such Prorated Obligation incurred by Seller
or Granite, attributable to operation of the Stations prior to the Closing
Date ("Pre-Closing Incurred Obligations") and (iii) the actual amount paid by
Seller or Granite (including any amount that Granite has paid to Lansing
under the Time Brokerage Agreement) with respect to such Prorated Obligation
prior to Closing ("Pre-Closing Paid Obligations").
(b) Closing Adjustment. The Purchase Price paid to Granite
shall be adjusted on an estimated basis at Closing based upon the Proration
Statement to the extent agreed to by the parties(with a final adjustment to
be completed in
26
accordance with Section 2.2.3(c) below): (i) upward dollar-for-dollar by the
amount, if any, by which Pre-Closing Paid Obligations exceed Pre-Closing
Incurred Obligations; or (ii) downward dollar-for-dollar by the amount, if
any, by which, Pre-Closing Incurred Obligations exceed Pre-Closing Paid
Obligations. To the extent of any disagreements by the parties as to Prorated
Obligations, such disputes shall be resolved as part of the Post-Closing
Adjustment under Section 2.2.3(c).
(c) Post-Closing Adjustment.
(i) As promptly as possible after the Closing, but in
any event not later than sixty (60) days after the Closing Date, Buyer shall
deliver to Granite a statement setting forth Buyer's determination of the
Purchase Price and the calculation thereof pursuant to Section 2.2.3(b).
Buyer's statement shall contain all information reasonably necessary to
determine the adjustments to the Purchase Price under Section 2.2.3(b), and
such other information as may be reasonably requested by Granite. If Granite
disputes the amount of the Purchase Price determined by Buyer, it shall
deliver to Buyer within thirty (30) days after their receipt of Buyer's
statement a statement setting forth its determination of the amount of the
Purchase Price. If Granite notifies Buyer of its acceptance of Buyer's
statement, or if Granite fails to deliver its statement within the thirty-day
period specified in the preceding sentence, Buyer's determination of the
Purchase Price shall be conclusive and binding on the parties as of the last
day of the thirty-day
27
period. To the extent a Purchase Price adjustment payment by one party to
the other is not in dispute, such payment shall be made within five (5)
business days after the determination of the amount due by wire transfer to
an account designated by the receiving party.
(ii) Buyer and Granite shall use good faith efforts to
resolve any dispute involving the determination of the Purchase Price. If
the parties are unable to resolve the dispute within thirty (30) days
following the delivery of Granite's statement pursuant to Section
2.2.3(c)(i), Buyer and Granite shall jointly designate an independent public
accounting firm of national stature acceptable to Granite and Buyer, which
firm shall be knowledgeable and experienced in the operation of television
broadcasting stations, to resolve the dispute. The accounting firm's
resolution of the dispute shall be final and binding on the parties, and a
judgment may be entered thereon in any court of competent jurisdiction. Any
Purchase Price adjustment payment by one party to the other determined under
this Section 2.2.3(c)(ii)shall be made within five (5) business days after
the determination of the amount by the independent public accounting firm by
wire transfer to an account designated by the receiving party. Any fees of
this firm shall be split equally between Buyer and Granite.
2.2.4 Allocation of Purchase Price. The parties hereby agree
that, except as otherwise specifically provided herein, for tax purposes they
shall allocate the Purchase
28
Price among the Granite Broadcasting Assets in accordance with their
respective fair market values, and that they will comply with the applicable
information reporting requirements of Section 1060 of the Code and the
regulations promulgated thereunder. Buyer and Granite shall report the
allocations consistently, to the extent permitted by law, on Internal Revenue
Form 8594, which the parties shall cooperate in preparing and which the
parties will timely file with the Internal Revenue Service. Within thirty
(30) days after the Closing Date, Granite shall deliver to Buyer an initial
schedule setting forth a complete listing of the Granite Broadcasting Assets
delivered to Buyer at the Closing, the book values and accumulated tax and
book depreciation for such assets as of December 31, 1997 and as of the
Closing Date and an allocation of Purchase Price among such Granite
Broadcasting Assets. Such allocation shall be final and binding upon Seller,
Granite and Buyer unless within 20 business days of receipt thereof Buyer
gives written notice to Granite that it does not consent to such allocation.
If Buyer notifies Granite within such 20-day period that it is withholding
its consent, Granite and Buyer will use good faith efforts to resolve any
disagreements. If Granite and Buyer cannot thereafter reach agreement on an
allocation within 30 days, Buyer and Granite shall cause an appraisal of the
Granite Broadcasting Assets to be performed and completed by Xxxxxxxx, Bond &
Picarro or such other appraisal firm as Granite and Buyer shall mutually
designate, with expenses in connection with such appraisal to be borne
equally by Granite and
29
Buyer. Such appraisal shall comply in all respects with the applicable
requirements of Section 1060 of the Code and the regulations promulgated
thereunder and shall be binding on the parties for the purpose of allocating
the Purchase Price among the Granite Broadcasting Assets. Each of the parties
shall be entitled to discuss the methods and procedures to be used by and to
review the working papers of such appraisal firm
2.3 Accounts Receivable. On the Closing Date, Granite shall
deliver a statement listing all Accounts Receivable. During the period
commencing with the Closing Date and ending the 180th calendar day after the
Closing Date, Buyer shall use commercially reasonable collection efforts to
collect the Accounts Receivable consistent with its practices for collection
of its accounts receivable; provided, however, that Buyer shall not be
obligated to institute any litigation or engage any collection agents or
services, or incur any out-of-pocket expenses (outside the ordinary course of
business), in connection with the collection of the Accounts Receivable.
Buyer shall account to Granite and remit to Granite all amounts collected by
Buyer with respect to the Accounts Receivable in accordance with the
following schedule: (a) on or before the twentieth (20th) day of the first
complete calendar month after the Closing Date, remit all amounts collected
up to the end of the previous month and the Persons from whom such amounts
were collected; and (b) on or before the twentieth (20th) day of each
succeeding month, remit all amounts collected during the month previous
thereto and the Persons from whom such amounts were
30
collected. With each remittance, Buyer shall furnish a statement of the
amounts collected and the Persons from whom such amounts were collected. In
the absence of a specific remittance advice accompanying payment identifying
the receivable to which a payment relates, collections from an Accounts
Receivable debtor shall be allocated to the oldest outstanding Accounts
Receivable of such debtor before applying any of such amounts to pay any
other obligation of such debtor to Buyer.
Buyer's obligation to collect the Accounts Receivable shall expire as of
midnight on the 180th day following the Closing Date. Within fifteen (15)
business days thereafter, Buyer shall remit to Granite all amounts collected
from the Closing Date until the date thereof to the extent not previously
remitted to Granite. Upon expiration of the Buyer's collection obligation
under this Section 2.3, Buyer shall turn over to Granite all documents and
records evidencing the Accounts Receivable which were paid to Granite
hereunder and which remain uncollected and Granite shall assume
responsibility for collection of any remaining Accounts Receivable for its
own account.
2.4 Assumption of Liabilities.
2.4.1 Limitation on Assumption of Obligations. Except as set
forth in Section 2.4.2 below, Buyer expressly does not, and shall not, assume
or be deemed to have assumed under this Agreement or by reason of any
transactions contemplated hereunder any Liabilities or obligations of any
member of the Granite Group, WWMT, WLAJ or Lansing of any nature whatsoever.
31
2.4.2 Assumed Obligations Relating to WWMT and WLAJ. Subject to
the provisions of Section 2.4.3 below, at the Closing, Buyer shall assume and
timely pay or perform the following obligations (collectively the "Assumed
Obligations"): (a) excluding any Liabilities for defaults or breaches by any
member of the Granite Group thereunder prior to the Closing or any default or
breach by any member of the Granite Group arising as a result of the
consummation of the transactions contemplated hereby, the obligations of any
member of the Granite Group arising subsequent to, and relating solely to,
the operations of the Stations on or after the Closing Date, under (i) all
contracts, agreements, commitments and leases of any member of the Granite
Group or by which a member of the Granite Group is bound, in effect as of the
date hereof which are included in the Granite Broadcasting Assets and set
forth on Schedules X-0, X-0, X-0, X-0, X-0 and C-2, (ii) all contracts,
agreements, commitments, leases and amendments, renewals and other
modifications thereof which are entered into by any member of the Granite
Group in connection with the operations of the Stations between the date
hereof and the Closing as permitted by and subject to the terms of this
Agreement and (iii) all contracts, agreements and commitments of the members
of the Granite Group or by which a member of the Granite Group is bound, not
required by the terms of Section 4.7 hereof to be listed on Schedules X-0,
X-0, X-0, X-0, X-0 or C-2; (b) any Liabilities incurred with respect to the
operation of Stations on or after the Closing Date; and (c) any Prorated
Obligations
32
allocated to Buyer. It is understood and agreed that Assumed Obligations
shall not include any Retained Liabilities.
2.4.3 Substitution Where Not Transferable. If the members
of the Granite Group shall be unable, on or prior to the Closing, to obtain a
consent necessary for the assignment of its title to, interest in and rights
under any Contract to be assigned hereunder, then Seller, Granite and Buyer
will cooperate to enter into a reasonable arrangement designed to enable the
applicable member of the Granite Group (as applicable) to perform its
obligations thereunder, and to provide for the assumption and recognition by
Buyer of the benefits, risks and burdens of, any such Contract, including, if
requested by Buyer, enforcement at the cost and for the account of Buyer of
any and all rights of the applicable member of the Granite Group against the
other party thereto arising out of the future cancellation thereof after the
Closing by such other party; provided, that, Buyer shall not be required to
enter into, or to accept as a substitute for performance by any member of the
Granite Group hereunder, any arrangement which would impose any additional
material cost, expense or Liability on Buyer, or would deprive Buyer of any
material benefits or profits contemplated under such Contract. As and when
after the Closing Date, title to, interest in and rights under any such
Contract become transferable, the assignment to Buyer by the applicable
member of the Granite Group of any title to, interest in and rights under such
Contract shall be deemed effective at the time such consent or approval is
33
effective, without any further action by Buyer or any member of the Granite
Group.
2.5 Acquisition of WLAJ. It is the intent and desire of the parties
hereto that, prior to the Closing, Granite shall, subject to the next sentence,
close the transactions contemplated by the WLAJ Purchase Agreement and that
Buyer shall acquire the WLAJ Lansing Assets, including the WLAJ Licenses, from
Granite or, in lieu thereof, directly from Lansing in a simultaneous closing.
However, the closing of the transactions under the WLAJ Purchase Agreement is
conditioned, among other things, upon obtaining a final order from the FCC
approving the FCC Applications (as defined in the WLAJ Purchase Agreement) and
consenting to the assignment of the WLAJ Licenses from Lansing to Granite or its
permitted assignee. As of the date hereof, this Agreement reflects the agreement
of the parties assuming the WLAJ Lansing Assets, including the WLAJ Licenses,
are not owned by Granite as of the Closing. Granite shall use commercially
reasonable efforts to obtain the FCC's Final Order to the assignment of the WLAJ
Licenses to Granite from Lansing and to close the transactions contemplated by
the WLAJ Purchase Agreement on or prior to the Closing.
(a) In the event Granite has acquired the WLAJ
Lansing Assets, including the WLAJ Licenses prior to the Closing in
sufficient time to obtain a Final Order for the assignment of the WLAJ
Licenses by Granite to Buyer, this Agreement shall be deemed to include the
purchase by Buyer of the
34
WLAJ Lansing Assets from Granite and the assignment of the WLAJ Licenses from
Granite to Buyer. In such event, this Agreement shall be deemed amended to
reflect the foregoing as if Granite owned the WLAJ Lansing Assets, including the
WLAJ Licenses, as of the Closing Date, with such changes as may be agreed upon
by the parties and are reasonable under the circumstances, and the parties shall
enter into a formal written amendment of this Agreement to reflect the
foregoing. Such amendment shall include the following:
(i) The Base Price shall be One Hundred
Seventy Million Dollars ($170,000,000.00);
(ii) All references to the WWMT Licenses
shall mean the Station Licenses;
(iii) Granite's post-closing rights and
post-closing obligations under the WLAJ Documents shall be assigned to Buyer,
including the representations and warranties and indemnification rights
thereunder, except as agreed otherwise by Granite and Buyer; provided, however,
that Granite shall remain responsible for its post-closing obligations for the
period, if any, subsequent to the closing under the WLAJ Purchase Agreement to
the Closing hereunder and
(iv) The representations and warranties of
the Granite Group shall be revised to reflect the inclusion of the WLAJ Lansing
Assets and the WLAJ Licenses, but such representations and warranties shall be
limited to the period when a member of the Granite Group owned or operated such
assets.
35
(b) In the event that either: (i) the conditions
to the closing of the transactions hereunder related to WWMT have been satisfied
or waived by the applicable parties but the conditions to neither the assignment
of the WLAJ Documents nor closing of the transactions hereunder related to WLAJ
have been satisfied or waived, or (ii) the conditions to the closing of the WWMT
transactions cannot be satisfied unless the transactions relating to WLAJ are
modified, the parties will negotiate in good faith to proceed with the closing
of the transactions related to WWMT on such terms and conditions as they may
agree.
3. FCC Consent.
3.1 Application and Request. Within twenty (20) days following the
execution of this Agreement, the parties shall file with the FCC a complete and
accurate application requesting the consent of the FCC to the assignment of (i)
the WWMT Licenses from WWMT License, Inc. to Buyer as contemplated herein (the
"WWMT Application") and (ii) the WLAJ Licenses from Granite to Buyer (the "WLAJ
Application," and collectively with the WWMT Application, the "FCC
Applications"). Each party shall notify the other parties hereto in the event
it becomes aware of any other facts, actions, communications, or occurrences
that might directly or indirectly affect the parties' intent or ability to
effect prompt FCC approval of the transactions contemplated by this Agreement.
The parties hereto shall with respect to WWMT and WLAJ diligently take, or
cooperate in the taking of, all necessary, desirable and proper actions, provide
any additional information
36
reasonably required or requested by the FCC, and otherwise use their
commercially reasonable efforts to obtain promptly the requested consent and
approval of the applications by the FCC. Buyer, Granite and Seller shall oppose
any petitions to deny or other objections filed with respect to the FCC
Application; provided, however, that neither Buyer, Granite nor Seller shall
have any obligation to participate in an evidentiary hearing on the FCC
Application. At either party's option, Buyer, Granite and Seller shall appeal
or otherwise seek review of any action of the FCC denying the FCC Application,
by filing an appropriate request for appeal or review with the FCC or a court of
competent jurisdiction, as the case may be.
3.2 Final FCC Order. In addition to the conditions set forth in
Section 7 hereof, the parties' obligation to consummate the transactions
contemplated by this Agreement is conditioned upon: (a) the grant by the FCC
(including, for purposes hereof, the FCC staff acting under delegated authority)
of an order consenting to the assignment of the WWMT Licenses from WWMT License,
Inc. to Buyer and compliance by the parties hereto with the conditions imposed
in said order (provided that none of Buyer, Granite nor Seller shall be required
to accept or comply with any condition which would be unreasonably burdensome or
which would have a material adverse effect upon it); and (b) said order having
become a Final Order. If the parties or their subsidiaries are required by the
FCC to participate in an evidentiary hearing on the assignment application,
either party,
37
at its option, by written notice of termination to the other parties, may
terminate this Agreement; provided, however, that the terminating party may not
so terminate this Agreement if it or any of its Affiliates are in material
default under any provision of this Agreement, or if the conditions described in
this Section 3.2 have been met prior to the delivery of written notice of
termination. Buyer may elect to waive the issuance of a Final Order by written
waiver executed by Buyer and referencing this Section 3.2.
4. Representations and Warranties of Granite and Seller. Each member of
the Granite Group, jointly and severally with the other members of the Granite
Group, represent and warrant to Buyer that:
4.1 Organization and Standing. Each member of the Granite Group: (a)
is duly organized and is validly existing and in good standing as a corporation
under the laws of the State of Delaware; (b) has the requisite corporate power
and authority to enter into and perform this Agreement, and to own, lease and
operate its business and assets (including the Broadcasting Assets) and to carry
on its business as now being conducted under its existing agreements and to
perform the obligations required to be performed by it hereunder to consummate
the transactions contemplated hereby; (c) is duly qualified to do business in
every jurisdiction in which the nature of the business of WWMT conducted by the
members of the Granite Group (and of WLAJ conducted by any member of the Granite
Group under the Time Brokerage Agreement)
-38-
requires such qualification, except where the failure to so qualify would not
materially adversely affect the Stations or the Broadcasting Assets; and (d)
owns none of the Granite Broadcasting Assets and conducts none of the business
or operations of WWMT (or any member of the Granite Group under the Time
Brokerage Agreement) through any Person other than Granite, WWMT License, Inc.,
Seller, Lansing and WLAJ, Inc. All of the issued and outstanding capital stock
of Seller is owned by Granite, and all of the issued and outstanding capital
stock of WWMT License, Inc. and WLAJ, Inc. is owned by Seller. Since its
inception, Seller's sole business and operations have consisted of the ownership
and operation of WWMT, and WWMT License, Inc.'s sole business and operations
have consisted of the ownership of the WWMT Licenses and WLAJ, Inc.'s sole
business and operations have consisted of certain operations related to WLAJ.
4.2 Authorization and Binding Obligations. The execution, delivery
and performance of this Agreement by each member of the Granite Group are within
the corporate powers of each such member and have been duly and validly
authorized by all necessary corporate action on the part of each member of the
Granite Group. This Agreement has been duly executed and delivered by each
member of the Granite Group and constitutes a valid and binding agreement of
each member of the Granite Group enforceable against each member in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium or other laws relating to or affecting
39
creditors rights generally and the exercise of judicial discretion in accordance
with general equitable principles.
4.3 No Contravention; Consents.
4.3.1 No Contravention. The execution, delivery and
performance of this Agreement, the consummation of the transactions contemplated
hereby and the compliance with the provisions hereof by each member of the
Granite Group do not and will not, after the giving of notice, or the lapse of
time, or otherwise: (a) conflict with, result in a breach of the terms of or
contravene, the Certificate of Incorporation or Bylaws of any member of the
Granite Group or any other document relating to a member of the Granite Group's
governance; (b) result in the breach of, or constitute a default under, conflict
with or result in the termination of any material agreement or other instrument
to which any member of the Granite Group is a party or by which the property of
any member of the Granite Group is bound or materially affected or result in the
creation of any Encumbrance upon any of the Broadcasting Assets or the Station
Licenses (after giving effect to any consents and waivers set forth in Schedule
4.3.1); or (c) violate or conflict with in any material manner any laws,
regulations, orders or judgments applicable to any member of the Granite Group
or any of their respective assets, including the Communications Act.
4.3.2 Consents. Except as set forth in Schedule 4.3.1 or as
required under the Communications Act or HSRA, no member of the Granite Group is
required to submit any
40
notice, report or other filing with, or obtain any consent, approval,
authorization or waiver from, any Government Authority or other Person (other
than with respect to agreements not required to be listed on Schedule 4.7
hereto) in connection with the execution, delivery or performance by each member
of the Granite Group of this Agreement or any of the transactions contemplated
hereby.
4.4 Title to Assets.
4.4.1 Real Property.
(a) On the Closing Date, a member of the Granite
Group will have and will convey to Buyer marketable fee or leasehold title as
applicable to all the real property to be transferred by it hereunder, free and
clear of all mortgages, security interests, pledges, claims, liens, charges,
covenants, easements, rights of way, restrictions, encroachments, leases, or any
other encumbrances (collectively, "Encumbrances"), except for and subject only
to: (i) liens for current real estate and other Taxes (A) not yet due and
payable and which are Prorated Obligations, or (B) that the taxpayer is
contesting in good faith through appropriate proceedings and which constitute
Retained Liabilities or Prorated Obligations; (ii) liens created by statute
securing the claims of materialmen, landlords and like Persons incurred in the
ordinary course of business and provided payment is not yet delinquent and the
underlying Liabilities or obligations with respect to such liens constitute
Retained Liabilities or Prorated Obligations; (iii) covenants, conditions,
41
restrictions, easements or other minor imperfections (other than any such
covenant, condition, restriction or imperfection that could be satisfied by its
terms solely by the payment of money) that individually or in the aggregate do
not materially detract from, or materially interfere with the present use or
present value of the properties or assets subject thereto or affected thereby or
otherwise materially impair the assets, business or financial condition of the
Stations or the Broadcasting Assets or affect the marketability of the
properties subject thereto in any material respect; (iv) those matters set forth
on Schedule A-1 or A-2, including the leases listed thereon (whether as lessor
or lessee); and (v) Encumbrances to be released in satisfaction of Section
7.1.17 hereof(collectively, "Permitted Encumbrances").
(b) Schedule A-1 or A-2 sets forth: (i) all real
estate owned or leased by any member of the Granite Group which is used in the
operations of the Stations or is included in the Broadcasting Assets; and (ii)
the nature of the right, title or interest each member of the Granite Group has
in such real estate. Except as disclosed in Schedule A-1 or A-2, none of the
buildings, structures or improvements located on any real estate owned or leased
by any member of the Granite Group which relates to the operations of the
Stations encroaches on any adjoining real estate, nor, to Granite's or Seller's
knowledge, does any adjoining real estate encroach on real estate owned or
leased by any member of the Granite Group. There is no condemnation action or
proceeding pending or, to the actual knowledge of any member of
42
the Granite Group, threatened, with respect to real estate identified on
Schedule A-1 or A-2 or any such building, structure or improvement. Such real
estate has available to it all parking, utilities and access and all zoning
permits and other use approvals required for the operation of the business of
WWMT or WLAJ, as applicable, and activities thereon as presently conducted.
4.4.2 Tangible Personal Property. On the
Closing Date, a member of the Granite Group will have and will convey to
Buyer marketable title to all the tangible personal property to be
transferred by it hereunder, in each case free and clear of all Encumbrances,
except for and subject only to Permitted Encumbrances.
4.4.3 Assets Sufficient. The Broadcasting
Assets include all assets (other than Excluded Assets) that are used in the
conduct of the business and operations of the Stations as presently
conducted, and the Broadcasting Assets include all assets necessary to the
conduct of the business and operations of the Stations as presently conducted.
4.5 Condition of Assets. The Granite Broadcasting
Assets described in paragraphs (a) and (b) of the definition of "WWMT Assets"
and "WLAJ Granite Assets" and the real and tangible personal property
included in the WLAJ Lansing Assets, are in the possession of Seller,
Granite, WLAJ, Inc. or Lansing and in good operating condition and repair,
ordinary wear and tear excepted (except as set forth in Schedule 4.5), are
suitable for the uses
43
and purposes for which they are being used or intended, and are used, located,
constructed and occupied in material compliance with all applicable federal,
state and local statutes, ordinances and regulations, but excluding the rules
and regulations of the FCC (which are the subject of Section 4.6 hereof) and
Environmental Laws (which are the subject of Section 4.16 hereof). No member of
the Granite Group has any actual knowledge or has received any notice that such
properties and/or assets or the present use thereof by the Granite Group are in
violation in any material respect of applicable statutes, ordinances and
regulations.
No member of the Granite Group has actual knowledge of any
defect or any condition relating to any transmission tower owned, used or
leased by any member of the Granite Group that would or may materially and
adversely affect the proper anchoring or securing thereof, the structural
soundness thereof, or the conformance thereof in all material respects with
generally accepted engineering standards of the television broadcasting
industry applicable to transmission towers.
The summary of the capital expenditures incurred by members of
the Granite Group for either of the Stations for calendar years 1996 and
1997, as set forth in Schedule 4.5.2 is true and complete in all material
respects.
4.6 Licenses and Authorizations.
4.6.1 Licenses. Schedules E-1 and E-2 hereto
contain a true and complete list of all Station Licenses and all
44
other material licenses, permits and authorizations under federal (including the
Communications Act), state or local law and all other rights, franchises,
privileges, immunities, approvals, licenses, permits and authorizations required
by the Granite Group to carry on the operation of the business of WWMT and WLAJ
as now conducted. WWMT License, Inc., with respect to WWMT, and Lansing, WLAJ,
Inc. or Granite, with respect to WLAJ, is the authorized and legal holder of all
of the foregoing.
4.6.2 Authorizations. The Station Licenses and
all other items identified in Section 4.6.1 are valid and in full force and
effect, and have been complied with in all material respects. To the
knowledge of each member of the Granite Group, there is no investigation,
notice of investigation, violation, order, complaint, action or other
proceeding pending or, to their actual knowledge, threatened before the FCC
or any other governmental authority to vacate, revoke, refuse to renew or
modify such licenses or other authorizations of WWMT or WLAJ or which could
in any manner materially threaten or adversely affect the Station Licenses or
the operations of the Stations as presently conducted. To the actual
knowledge of each member of the Granite Group, no event has occurred which
permits, or after notice or lapse of time would permit, the revocation or
termination of any Station License or the imposition of any restriction
thereon of such a nature as may materially limit the business or operations
of WWMT or WLAJ as now conducted. No member of the Granite Group has actual
knowledge of any event or
45
proceeding arising from or concerning the operation of WWMT or WLAJ that would
cause the FCC not to renew any Station License if such license were expiring on
the date hereof.
4.7 Contracts. Schedules X-0, X-0, X-0, X-0, X-0 and
C-2 contain a true and complete list of all contracts, leases, national and
local advertising representation agreements, employment agreements and other
agreements and commitments of every nature in full force and effect as of the
date hereof to which any member of the Granite Group is a party or is bound,
written or otherwise, constituting part of the Broadcasting Assets or the
Assumed Obligations (collectively, the "Contracts"), except (a) contracts
entered into by any member of the Granite Group in the ordinary course of its
business for the provision of immaterial incidental services to WWMT or WLAJ
(such as cleaning, landscaping, copier and similar contracts) that are
terminable by a member of the Granite Group on thirty (30) days' notice and
without material obligations, (b) contracts entered into by any member of the
Granite Group in the ordinary course of business of the Stations providing
for aggregate payments of less than $5,000 over the remaining term thereof
and (iii) contracts entered into in accordance with the terms of Section
6.1.11 hereof. No member of the Granite Group, nor, to the actual knowledge
of each member of the Granite Group, any other party to the Contracts, is in
material default under any of the Contracts, and to the actual knowledge of
each member of the Granite Group, no event, occurrence or condition exists
which with the giving of notice,
46
would become a material default thereunder. No member of the Granite Group has
released or waived (by action or inaction) any material rights under any of the
Contracts. All such Contracts are in full force and effect and valid and
binding and enforceable against the members of the Granite Group (as applicable)
and, to the actual knowledge of each member of the Granite Group, the other
parties thereto in accordance with their terms, except as such enforceability
may be limited by bankruptcy, insolvency, moratorium or other laws relating to
or affecting creditors' rights generally. As of the Closing Date, no member of
the Granite Group will have assigned any of its rights under any of the
Contracts and, subject to the qualification contained in the preceding sentence,
will in no way be restricted from enforcing its material rights thereunder.
True and complete copies of all Contracts and all amendments and modifications
thereto listed in the Schedules hereto have been delivered or made available to
Buyer. Seller, with respect to WWMT, and Granite or WLAJ, Inc., with respect to
WLAJ, has the right to the quiet enjoyment of all of its leased real and
personal property relating to WWMT and WLAJ in accordance with the terms of the
lease agreements governing such leased real or personal property.
4.8 Franchises, Trademarks and Trade Names. All
material franchises, trademarks, patents, tradenames, intellectual property,
service marks, promotional materials, slogans, know-how, call letters,
telephone numbers, copyrights in literary property of any kind, jingles,
privileges and other intellectual property
47
rights held by any member of the Granite Group with respect to WWMT or WLAJ
which are included in the Broadcasting Assets are set forth on Schedules D-1 or
D-2 hereto, are owned by a member of the Granite Group or Lansing (with respect
to WLAJ) or licensed for their use. No other franchises, trademarks, patents,
tradenames, intellectual property, service marks, brand names, copyrights,
privileges or other intellectual property rights material to the operations of
the business of WWMT or WLAJ (other than those held by Lansing with respect to
WLAJ) are necessary for the operation of the business of WWMT or WLAJ as
presently conducted. To the actual knowledge of each member of the Granite
Group, the ownership and operation of WWMT by any member of the Granite Group
(and the operations of WLAJ by any member of the Granite Group under the Time
Brokerage Agreement) and their properties utilized in connection with the
business of WWMT and WLAJ, as presently owned and operated, do not infringe in
any material respect upon or conflict in any material respect with any
franchise, patent, trademark, tradename, service xxxx, brand name, copyright,
trade secret or other intellectual property rights of any other Person and, to
the actual knowledge of each member of the Granite Group, no other Person is
infringing in any material respect upon any such rights with respect to WLAJ or
WWMT.
4.9 Employee Plans; ERISA.
4.9.1 Station Plans. Each Employee Plan (a) in
which or to which, at any time, any employee or former employee of Granite
(as to WLAJ Employees), Seller, WLAJ, Inc., WWMT or WLAJ
48
has participated or been a party or bound and (b) (i) which has at any time been
sponsored or maintained by any member of the Granite Group, any other member of
the Controlled Group, (ii) to which any member of the Granite Group or any other
member of the Controlled Group has at any time contributed or had or may have
had an obligation to contribute or (iii) to which any member of the Granite
Group or any other member of the Controlled Group has been a party or bound
(each such plan described in (a) or (b) is referred to individually as a
"Station Plan" and collectively as the "Station Plans") is listed on Schedule
4.9.
4.9.2 Compliance With Laws. All Station Plans
have been administered in accordance with their terms and are in compliance
with ERISA, the Code and all other applicable laws, rules and regulations in
all material respects. Neither Granite, Seller nor any member of the
Controlled Group has maintained, contributed to or had an obligation to
contribute to any Employee Plan, nor any similar predecessor plan, that is
subject to Title IV of ERISA. No "reportable event" (as such term is used in
Section 4043 of ERISA), "prohibited transaction" (as such term is used in
Section 406 of ERISA or Section 4975 of the Code) or "accumulated funding
deficiency" (as such term is used in Section 412 or Section 4971 of the Code)
has heretofore occurred with respect to any Station Plan. No litigation or
administrative or other proceedings involving a Station Plan is pending or,
to the actual knowledge of each member of the Granite Group, threatened.
Neither the consummation of the transactions contemplated by this
49
Agreement nor the employment by Buyer of any Business Employee will result in
any liability to Buyer or the Granite Broadcasting Assets for Taxes, penalties,
interest or any other Liability or obligation resulting from any Station Plan.
4.9.3 Multiemployer Plans. Neither Granite nor
any member of the Controlled Group has maintained or contributed to any
Station Plan, or any similar predecessor plan, which is a multiemployer plan,
as defined in Section 3(37) or Section 4001(a)(3) of ERISA or Section 414(f)
of the Code, which covers, is maintained for the benefit of or relates to any
of the employees of Granite (as to the WLAJ Employees), Seller, WLAJ, Inc.,
WWMT or WLAJ.
4.9.4 Group Health Plan. Each Station Plan
which is a group health plan (as such term is defined in Code Section
4980B(g)) complies and has complied in all material respects with the
applicable requirements of Code Section 4980B, Title XXII of the Public
Health Service Act and the Social Security Act.
4.9.5 Post-Employment Obligations. Except as
described in Schedule 4.9 or as required pursuant to Code Section 4980B,
neither Seller, Granite nor any Affiliate thereof provides and has any
obligation to provide continuing health, life, or other insurance coverage to
former employees of Granite (with respect to the WLAJ Employees), Seller,
WLAJ, Inc., WLAJ or WWMT following their termination or retirement.
50
4.9.6 Delivery. True and complete copies of all
Station Plans and all amendments and modifications thereto have been
delivered to Buyer, and all summaries, descriptions and other materials
furnished to Buyer in respect of such Employee Plan are accurate in all
material respects and, in the case of summaries and descriptions, cover all
material terms of the Employee Plan to which they relate.
4.10 Financial Statements; Liabilities.
4.10.1 Financial Statements. The: (a) compiled
unaudited balance sheet and the related statements of operations: (i) of
Seller, WLAJ, Inc. and Granite (with respect to WLAJ) as of and for the
fiscal year ended December 31, 1997; (ii) of Seller and WLAJ, Inc. as of and
for the fiscal year ended December 31, 1996; and (iii) of Granite (with
respect to WLAJ) as of and for the three month period ended December 31,
1996; and (b) the interim unaudited financial statements delivered and to be
delivered pursuant to Section 6.1.8 hereof (the statements referred to in (a)
and (b) above being collectively, the "Financial Statements") in each
instance were (or will be in the case of a future delivery) prepared in
accordance with GAAP, other than the lack of footnotes, allocations with
respect to services performed by Affiliates and, in the case of interim
financials, year end adjustments. The Financial Statements referred to in
the preceding sentence of this Section 4.10 (hereinafter, collectively
referred to as the "Financial Information") are attached hereto as Schedule
4.10.1 (to the extent prepared as of the date hereof) and
51
are and will be (to the extent to be prepared and delivered in the future
pursuant to Section 6.1.8), true and correct in all material respects, fairly
present the financial condition and results of operations of Seller, WLAJ, Inc.
and Granite (with respect to WLAJ) as of the dates and for the periods indicated
and have been and will be certified by a responsible financial officer of
Granite as to the foregoing requirements. Since December 31, 1997, there have
been no material adverse changes in the business, operations or condition,
financial or otherwise, of WWMT, Seller, WLAJ, Inc., WLAJ, the Granite
Broadcasting Assets or the WLAJ Lansing Assets, taken as a whole.
4.10.2 Liabilities. Except as set forth in
Schedule 4.10.2, as reflected or reserved against in the balance sheets
included in the Financial Information or liabilities incurred in the ordinary
course of business since the date of the latest balance sheet included in the
Financial Information, there are no Liabilities of a nature required to be
reflected in financial statements prepared in accordance with GAAP.
4.11 Litigation; Compliance.
4.11.1 Litigation. Except for administrative
rulemaking, legislation or other proceedings of applicability to the
broadcast industry generally or any segment thereof in which any member of
the Granite Group operates and except as set forth on Schedule 4.11: (a)
there is no civil, criminal or administrative action, notice of apparent
violation, notice of apparent liability, suit, demand, claim, complaint,
hearing,
52
litigation, action, proceeding or investigation of any nature pending and, to
the actual knowledge of each member of the Granite Group, no such matter is
threatened against Granite, Seller, WLAJ, Inc., WLAJ, WWMT, the Granite
Broadcasting Assets, or, to the actual knowledge of each member of the Granite
Group, Lansing or affecting the same, which: (i) might reasonably result in a
material adverse effect upon the business or operations or condition, financial
or otherwise, of WWMT, WLAJ or the Broadcasting Assets, taken as a whole, (ii)
seeks to enjoin, prohibit or otherwise challenge, or would affect Seller's,
Granite's, WLAJ, Inc.'s or WWMT License, Inc.'s or, to the actual knowledge of
each member of the Granite Group, Lansing's ability to consummate, the
transactions contemplated hereby or (iii) might reasonably result in a material
adverse effect on the enjoyment and use by Buyer of the Broadcasting Assets; and
(b) no writ, injunction, judgment, award, order or decree has been rendered
affecting any member of the Granite Group, WWMT, WLAJ or the Broadcasting Assets
(or, to the actual knowledge of each member of the Granite Group, Lansing),
which might reasonably result in a material adverse effect upon the business or
operations or condition, financial or otherwise, of any member of the Granite
Group, WWMT, WLAJ, Seller or the Broadcasting Assets, taken as a whole.
4.11.2 Violations. Neither Granite, WLAJ, Inc., WWMT License,
Inc., nor Seller, nor, to the actual knowledge of any member of the Granite
Group, Lansing, has violated or is in
53
default under any order, law, rule, regulation, ordinance, policy, judgment,
writ or decree of the FCC or any other Governmental Authority in any respect
which might materially adversely affect the business or operations or condition,
financial or otherwise, of WWMT, WLAJ, the Station Licenses, or the Broadcasting
Assets, taken as a whole. All returns, notices, reports, statements or other
filings currently required to be filed by any member of the Granite Group with
the FCC and all material returns, notices, reports, statements or other filings
currently required to be filed by any member of the Granite Group with any other
federal, state, or local Governmental Authority, with respect to WWMT, WLAJ or
the Broadcasting Assets, have been filed and complied with in all material
respects. All such reports, returns and statements are materially complete and
correct as filed.
4.12 Cable Carriage. Except as set forth on Schedule 4.12, the signals of
WWMT and WLAJ are being carried on all cable television systems located
within the Kalamazoo-Grand Rapids-Battle Creek DMA (Designated Market Area)
and Lansing DMA, respectively, as designated by the FCC either pursuant to
the mandatory carriage requirements specified in Section 614 of the
Communications Act or pursuant to retransmission consent agreements entered
into in accordance with Section 325(b) of the Communications Act, subject to
current administrative proceedings and any litigation pertaining to mandatory
carriage and consent.
4.13 Labor. There are no strikes, work stoppages, grievance proceedings,
or union organization efforts pending or,
54
to the actual knowledge of any member of the Granite Group, threatened between
Seller, WLAJ, Inc., WWMT License, Inc. or Granite (with respect to the employees
of WLAJ employed by Granite (the "WLAJ Employees")) and any of their employees
or agents or any union or collective bargaining unit. To the knowledge of each
member of the Granite Group, each member of the Granite Group has complied in
all material respects with all laws and regulations relating to the employment
of labor with respect to WWMT or WLAJ. Except as set forth on Schedule C-1 or
C-2, there are no collective bargaining agreements or employment agreements
between any member of the Granite Group and any employees or any union covering
any employees of Granite (as to the WLAJ Employees), Seller, WWMT, WLAJ, Inc.,
WWMT License, Inc. or WLAJ.
4.14 Affiliated and Recent Transactions.
4.14.1 Affiliated Transactions. Except as described on
Schedule 4.14.1, no member of the Granite Group is a party to any transaction
with respect to WWMT or WLAJ or the Broadcasting Assets with any of their
officers, directors, employees (except in the ordinary course of business), or
Affiliates, including, without limitation, the extension of credit or the
commitment to extend credit to any such Persons or entities.
4.14.2 Recent Transactions. Except as described on Schedule
4.14.2, since December 31, 1997, no member of the Granite Group has: (a) entered
into any transactions, or conducted business, relating to WWMT or WLAJ in any
manner inconsistent in
55
any material respect with its historical practices; (b) mortgaged or subjected
to any Encumbrance (other than Permitted Encumbrances) any of the Broadcasting
Assets; (c) other than pursuant to this Agreement, sold, leased or transferred
or agreed to sell, lease or transfer, any of the Broadcasting Assets, except in
the ordinary course of business; (d) increased the rate of compensation payable
or to become payable to any of the employees of Granite (as to the WLAJ
Employees), Seller, WWMT License, Inc., WLAJ, Inc., WWMT or WLAJ or made any
increase in any profit sharing, bonus, deferred compensation, savings,
insurance, pension, retirement or other Employee Plan or payment or arrangement
made to, for or with any such employees, except in the ordinary course of
business and in light of prevailing inflationary trends; (e) except as expressly
permitted herein, adopted, or amended, any collective bargaining, bonus,
profit-sharing, compensation, stock option, pension, retirement, deferred
compensation or other Employee Plan, agreement, trust, fund or arrangement for
the benefit of employees of Granite (as to the WLAJ Employees), Seller, WWMT
License, Inc., WLAJ, Inc., WWMT or WLAJ; (f) sustained or incurred any uninsured
loss or damage on account of fire, flood, accident or other calamity which has
materially interfered with or affected, or may materially interfere with or
affect, the operation of WWMT's business or Granite's or WLAJ, Inc.'s operation
of WLAJ under the Time Brokerage Agreement as presently conducted; (g) changed
any accounting methods or practices (including, without limitation,
56
any change in depreciation or amortization policies or rates); (h) failed to pay
any payments on film rights and agreements with respect to WWMT or WLAJ on a
current basis, except to the extent Granite or Seller, as applicable, has a
valid dispute with respect to any such payment; (i) canceled or compromised any
debt or claim or waived or released any rights with respect to WLAJ or WWMT
except in the ordinary course of business; (j) except in the ordinary course of
business and consistent with past practice, transferred, granted, licensed,
assigned, terminated or otherwise disposed of, modified, changed or canceled any
rights or obligations with respect to any of the intellectual property rights
included in the Broadcasting Assets; (k) made any material change in the conduct
or nature of any aspect of the business of WWMT or WLAJ; or (l) has agreed to
take any action referred to in the foregoing.
4.15 Taxes.
4.15.1 Filing of Tax Returns. Each member of the Granite Group
has timely filed with the appropriate taxing authorities all returns (including,
without limitation, information returns and other material information) required
to be filed through the date hereof for which any member of the Granite Group
would have a Liability for Taxes. The applicable members of the Granite Group
have paid, will pay in a timely manner or have made appropriate provision for
the payment of all Taxes shown as due and payable by the tax returns described
in the preceding sentence.
57
4.15.2 Tax Liens. There are no liens for Taxes upon any of the Granite
Broadcasting Assets, and to the actual knowledge of each member of the
Granite Group, upon any of the WLAJ Lansing Assets, other than for Taxes the
payment of which is either: (a) not yet due and which constitute Prorated
Obligations; or (b) that are being contested by the taxpayer in good faith
through appropriate proceedings and which contested Taxes constitute Retained
Liabilities or Prorated Obligations.
4.15.3 Parachute Payments. In connection with the assumption of the
Assumed Obligations, Buyer will not become obligated to make any "parachute
payment" as defined in section 280G of the Code.
4.16 Environmental Matters.
4.16.1 Compliance. Except as set forth on Schedule 4.16.1, each member
of the Granite Group is, at present, complying and have complied in all
material respects with all Environmental Laws insofar as such laws relate to
WWMT or the operation of WLAJ under the Time Brokerage Agreement; and no
member of the Granite Group has received any notification in the last two
years of any Claims, the existence of any Environmental Conditions or alleged
violations of Environmental Laws.
4.16.2 Property Use. Except as set forth on Schedule 4.16.2, there has
been no storage, generation, manufacture, refinement, transportation,
production, treatment or disposal of Hazardous Materials by any member of the
Granite Group (or, to the knowledge of any member of the Granite Group, by
any
58
other Person) on, under, in, adjacent to (but only to the actual knowledge of
each member of the Granite Group), or about any of the real property or
equipment owned, leased, occupied, controlled or used by WWMT or WLAJ during
Seller's ownership of WWMT or Granite's or WLAJ, Inc.'s operation of WLAJ in
material violation of any applicable law, rule, regulation, order or permit,
no member of the Granite Group has actual knowledge of any such storage,
generation, manufacture, refinement, transportation, production, treatment or
disposal of Hazardous Materials prior to Seller's ownership of WWMT or
Granite's or WLAJ's operation of WLAJ.
4.16.3 USTs. Except as described on Schedule 4.16.3, to the knowledge
of each member of the Granite Group, no underground storage tanks, as defined
in Section 6991(l) of RCRA or applicable state law, exist on, under, in or
about any of the real property owned, leased, occupied or used by WWMT or
WLAJ.
4.16.4 Claims. Except as set forth on Schedule 4.16.4, to the
knowledge of each member of the Granite Group, there has been no release (as
defined under Section 101(22) of CERCLA) of any Hazardous Materials on,
under, in, adjacent to (but only as to the actual knowledge of each member of
the Granite Group), or about any of the real property owned, leased,
occupied, controlled or used by WWMT or WLAJ during Granite's, WLAJ, Inc.'s
or Seller's ownership or operation of WWMT or WLAJ that could create any
Environmental Conditions which could give rise to any Claims, and no member
of the Granite Group has actual knowledge of any such
59
release prior to Granite's, WLAJ, Inc.'s or Seller's ownership or operation
of WWMT or WLAJ.
4.16.5 Hazardous Materials. Except as set forth on Schedule 4.16.2:
(a) to the knowledge of each member of the Granite Group, there are no
Hazardous Materials on, under, in, adjacent to (but only as to the actual
knowledge of each member of the Granite Group), or about any of the real
property or equipment owned, leased, occupied, controlled or used by Seller,
WLAJ or Granite in their operation of WLAJ or WWMT in material violation of
Environmental Laws; and (b) no member of the Granite Group is aware of any
pending or threatened investigation, litigation or proceedings before any
government agency or instrumentality in which any Person or entity has
alleged the release or threat of release of Hazardous Materials at, under,
in, adjacent to (but only as to the actual knowledge of each member of the
Granite Group), or about any of the real property or equipment owned, leased,
occupied, controlled or used by Seller, WLAJ, Inc. or Granite in their
operation of WLAJ or WWMT, or the unlawful generation, emission, discharge,
transportation, storage, treatment or disposal of any Hazardous Materials
thereat or any personal injury arising therefrom.
4.16.6 Relevant Property. For purposes of this Section 4.16, real
property or equipment owned, leased, occupied, controlled or used by WWMT or
WLAJ shall include real property and equipment owned, leased, occupied,
controlled or used by WWMT or WLAJ and all real property and equipment
formerly owned by WWMT or
60
WLAJ, if any, at the time such property was owned, leased, occupied,
controlled or used by Seller, WLAJ, Inc. or Granite.
4.17 Miscellaneous. No representation or warranty made by any member of
the Granite Group in this Agreement contains any untrue statement of a
material fact or knowingly omits or fails to state any material fact or
information necessary to make such representation or warranty, in light of
the circumstances under which it is made, not materially misleading.
5. Representations and Warranties of Buyer. Buyer represents and
warrants to Granite and Seller that:
5.1 Organization and Standing. Buyer: (a) is a corporation duly
organized, validly existing and in good standing under the law of the State
of California; (b) has full corporate power and authority to own its
properties and to transact the business in which it is currently engaged and
to perform the obligations required to be performed by it hereunder and to
consummate the transactions contemplated hereby; and (c) is duly qualified to
do business and in good standing as a foreign corporation in every
jurisdiction in which the nature of the business to be conducted by it
requires such qualification, except where the failure to so qualify would not
materially adversely affect Buyer or the transactions contemplated hereby.
5.2 Authorization and Binding Obligations. The execution, delivery and
performance of this Agreement have been duly and validly authorized by all
necessary corporate action on the part of Buyer. This Agreement has been
duly executed and
61
delivered by Buyer and constitutes a valid and binding agreement of Buyer,
enforceable in accordance with its term except as such enforceability may be
limited by bankruptcy, insolvency, moratorium or other laws relating to or
affecting creditors' rights generally and the exercise of judicial discretion
in accordance with general equitable principles.
5.3 No Contravention. The execution, delivery and performance of this
Agreement, the consummation of the transactions contemplated hereby and the
compliance with the provisions hereof by Buyer does not and will not, after
the giving of notice, or the lapse of time, or otherwise: (a) conflict with
or violate any provisions of the Certificate of Incorporation of Bylaws of
Buyer; (b) result in the breach of, conflict with, require any consent under,
or constitute a default under, the provisions of any agreement or other
instrument to which Buyer is a party or by which the property of Buyer is
bound or affected; or (c) violate or conflict with any material laws,
regulations, orders or judgments applicable to Buyer or its assets.
5.4 Litigation. Except for administrative rulemaking or other
proceedings of general applicability to the broadcast industry, there is no
civil, criminal or administrative action, notice of apparent violation,
notice of apparent liability, suit, demand, claim, complaint, hearing,
litigation, action, proceeding or investigation of any nature pending or, to
Buyer's actual knowledge, threatened against or affecting it that would
affect
62
its ability to consummate the transactions contemplated in this Agreement.
5.5 Absence of Knowledge as to Certain Facts. Buyer has no knowledge of
any fact that would, under existing law (including the Communications Act)
and existing rules, regulations and practices of the FCC, disqualify Buyer as
an assignee of the WWMT Licenses, the WLAJ Licenses or the WLAJ Documents, or
as owner and operator of WWMT or an operator of WLAJ under the Time Brokerage
Agreement. Buyer will not take any action that it knows or has reason to know
would cause such disqualification and Buyer will not fail to take any action
if it knows or has reason to know that the failure to take such action would
cause such disqualification.
5.6 Miscellaneous. No representation or warranty made by Buyer in this
Agreement contains any untrue statement of a material fact or knowingly omits
or fails to state any material fact or information necessary to make such
representation or warranty, in light of the circumstances under which it is
made, not materially misleading.
6. Conduct of Business.
6.1 Conduct of Business to Closing. Seller, WLAJ, Inc. and Granite
covenant and agree, with respect to WWMT and WLAJ, that pending the Closing,
except with the prior written consent of Buyer (which shall not, in the case
of Section 6.1.4 hereof, be unreasonably withheld or delayed):
63
6.1.1 Conduct of Business. Subject to the provisions of this
Agreement, Seller, WLAJ, Inc. and Granite shall conduct the business and
operations of WWMT and WLAJ under the Time Brokerage Agreement in the normal
and ordinary course of business in substantially the same manner as
heretofore conducted and shall use all reasonable efforts consistent with
normal business practices to preserve and promote such business and
operations and to avoid any act which might have a material adverse effect
upon the value of WWMT or WLAJ as going concerns, taken as a whole, or upon
the Broadcasting Assets, taken as a whole. Granite, WLAJ, Inc. and Seller
shall confer and consult with Buyer prior to making any programming schedule
changes.
6.1.2 Assets. Consistent with normal business practices, Seller,
WLAJ, Inc. and Granite shall maintain the Granite Broadcasting Assets and the
WLAJ Lansing Assets (to the extent any one of them operate, control or
maintain the WLAJ Lansing Assets)in the condition specified in Section 4.5
hereof, ordinary wear and tear excepted in the case of the good operating
condition and repair condition.
6.1.3 Inventory. Seller, WLAJ, Inc. and Granite shall maintain their
respective inventory levels (including office supplies, spare parts, tubes,
equipment and the like) at levels consistent with its normal and ordinary
course of operation of WWMT and WLAJ (under the Time Brokerage Agreement).
6.1.4 Employee Compensation and Benefits. Neither Seller, WLAJ, Inc.
nor Granite shall materially increase
64
the compensation, expense allowance or other benefits (including any
severance benefits) payable or to become payable to any employee or agent of
Seller, WLAJ, Inc. or WWMT or any WLAJ Employee or pay or arrange to pay any
bonus payment to any such employee unless disclosed on Schedule 6.1.4 or Item
2 of Schedule F, except in conformance with existing normal patterns of
adjustment and in light of prevailing inflationary trends with respect to
Seller, WLAJ, Inc., Granite or WWMT. Granite, WLAJ, Inc. and Seller shall
confer and consult with Buyer prior to making any changes in key personnel at
the Stations or changes in talent scheduling.
6.1.5 Organization, Etc. Except as set forth on Schedule 6.1.5,
consistent with normal business practices, Seller, WLAJ, Inc. and Granite
shall use their respective commercially reasonable efforts to: (a) preserve
intact the business organizations of WWMT and WLAJ in all material respects;
(b) keep available to WWMT the services of Seller's present employees, keep
available to WLAJ all of the WLAJ Employees and make available for employment
by Buyer all present WLAJ Employees and employees on the payroll of Seller,
WLAJ, Inc. or WWMT; and (c) preserve for WWMT and WLAJ the existing
relationships with suppliers, customers and their agencies and others having
business with WWMT and WLAJ.
6.1.6 Insurance. Seller, WLAJ, Inc. and Granite shall cause to be
maintained in effect until the Closing their existing property damage,
liability and other insurance with
65
respect to the Granite Broadcasting Assets and the WLAJ Lansing Assets (to
the extent such insurance on the WLAJ Lansing Assets is maintained under the
Time Brokerage Agreement), the list of the policies governing which are set
forth on Schedule 6.1.6.
6.1.7 Transfer of Broadcasting Assets. No member of the Granite Group
shall sell, assign, lease or otherwise transfer or dispose of any of the
Broadcasting Assets, except where such disposition is in the ordinary course
of business or the assets involved are either: (a) no longer used or useful;
or (b) replaced with a substantially equivalent asset of substantially
equivalent kind, condition and value.
6.1.8 Financial Statements; Pacing Reports. Granite shall furnish to
Buyer as soon as available, but in no event later than thirty (30) days after
the end of each calendar month: (a) an unaudited profit and loss statement of
each of WWMT and WLAJ for such month and for the period of its fiscal year
ended at the end of such period; and (b) an unaudited balance sheet of WWMT
and WLAJ as of the end of such month. The financial statements to be
delivered by Granite hereunder shall be certified by a responsible financial
officer of Granite as complying with the requirements set forth in Section
4.10 and shall be prepared on a comparative basis with the preceding fiscal
year or corresponding period thereof. In addition to the statements
delivered to Buyer pursuant to this Section 6.1.8, Granite shall deliver to
Buyer on a weekly basis sales tracking reports for the applicable fiscal
period, which shall be certified as to the
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accuracy thereof by a responsible manager of Granite or Seller and shall be
correct in all material respects.
6.1.9 Encumbrances. No member of the Granite Group shall create,
assume or permit to exist any Encumbrance (other than Permitted Encumbrances)
affecting any of the Broadcasting Assets (or their replacements).
6.1.10 Litigation. Granite shall notify Buyer of any litigation (a)
pending or, to the actual knowledge of any member of the Granite Group,
threatened, against WWMT, any member of the Granite Group or the Granite
Broadcasting Assets or, to each of their actual knowledge, pending or
threatened against WLAJ or Lansing (with respect to WLAJ) or (b) which
challenges the transactions contemplated hereby and of any material damage to
or destruction of the Broadcasting Assets.
6.1.11 Agreements. Each member of the Granite Group shall perform all
material obligations (including, without limitation, all payment obligations)
required to be performed by them under all agreements, leases, contracts and
commitments binding upon them with respect to WWMT or WLAJ or to which WWMT,
WLAJ or the Broadcasting Assets are subject, including, without limitation
the WLAJ Purchase Agreement and the Time Brokerage Agreement, and shall not
amend or terminate, or waive or fail to enforce any material right under (i)
any Contract or series of related Contracts involving payments of over
$50,000 or (ii) the WLAJ Purchase Agreement or the Time Brokerage Agreement,
or enter into any new agreements or arrangements or series of related
67
contracts or agreements involving payments of over $50,000 in the aggregate,
which might be binding on or affect the Broadcasting Assets, WWMT, WLAJ or
Buyer; provided, however, that Granite or Seller shall be permitted to enter
into new programming contracts after consultation with Buyer with respect
thereto. No member of the Granite Group shall enter into any new collective
bargaining or employment agreement (other than an employment agreement
terminable at will) or other Employee Plan or any amendment, extension or
other modification of any existing employment agreement or Employee Plan
affecting the employees of Seller, WLAJ, Inc. or WWMT or the WLAJ Employees.
6.1.12 Consents and Approvals. Each member of the Granite
Group will, prior to the Closing Date, use commercially reasonable efforts to
obtain or cause to be obtained consents to the assignment to Buyer of all
leases, contracts and agreements which require the consent of any third party
by reason of the transactions provided for in this Agreement. Each party
shall cooperate with the other to obtain any such consents or approvals.
6.1.13 Network Affiliation Agreements. Each member of the
Granite Group shall use commercially reasonable efforts to: (a) maintain in
full force and effect its current television Network affiliation agreement
with CBS, Inc. ("CBS") applicable to WWMT (the "CBS Affiliation Agreement");
(b) promptly notify CBS of the application filed with the FCC for consent to
the assignment of the WWMT Licenses; and (c) cooperate with Buyer
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to obtain, as soon as practicable, the consent of CBS to the assignment of
the CBS Affiliation Agreement to Buyer at the Closing. Each member of the
Granite Group shall use commercially reasonable efforts to: (a) maintain in
full force and effect its current television Network affiliation agreement
with American Broadcasting Company ("ABC") applicable to WLAJ (the "ABC
Affiliation Agreement"); (b) promptly notify ABC of the application filed
with the FCC for consent to the assignment of the WLAJ Licenses; and (c)
cooperate with Buyer in Buyer's efforts to obtain, as soon as practicable,
the consent of ABC to the assignment of the ABC Affiliation Agreement to
Buyer at the closing.
6.1.14 Licenses. No member of the Granite Group shall, by
any act or omission to act within their reasonable knowledge and power: (a)
surrender, modify, adversely affect or forfeit any of the Station Licenses;
or (b) cause the FCC to institute any proceedings for the cancellation,
non-renewal or modification of any of the Station Licenses.
6.2 Offers to Purchase. No member of the Granite Group, nor any of
their respective officers, directors, employees, agents, representatives or
Affiliates shall, either directly or indirectly, entertain or conduct
discussions or negotiations with any Person with respect to any offer or
proposal for the purchase or sale of any material portion of the Broadcasting
Assets or any interests of Seller, WWMT License, Inc., WLAJ, Inc., WWMT,
Lansing or WLAJ, or with respect to any merger, acquisition, combination,
69
consolidation or similar transaction involving Seller, WWMT License, Inc.,
WLAJ, Inc., WWMT, or WLAJ or any material portion of the Broadcasting Assets,
or enter into any agreement or transaction relating to any of the foregoing.
6.3 No Breach of Representations and Warranties. No member of the
Granite Group nor any of their Affiliates shall take any action or pursue any
other course of conduct, or fail to take any action, that would cause any of
the representations and warranties made by the members of the Granite Group
in this Agreement (or any document delivered in connection herewith) to be
materially untrue, incorrect or inaccurate.
6.4 Employee Notification Requirements.
6.4.1 Notice. Seller shall provide timely notice to
employees of Seller and WWMT and to the WLAJ Employees pursuant to the Worker
Adjustment and Retraining Notification Act, 29 U.S.C. Sections 2102-09, if
applicable, and any similar provision of applicable state law. Seller also
shall provide to the collective bargaining representatives, if any, of the
employees of Seller, WWMT and the WLAJ Employees such notice as may be
required for decision or effects bargaining under the National Labor
Relations Act, 29 U.S.C. Section 151 et seq.
6.4.2 Organizing Activity. Granite shall promptly notify
Buyer of any activity by any labor organization at WWMT or relating to the
WLAJ Employees or any activity by any labor organization directed at
organizing the employees or any
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group of employees of Seller or WWMT or the WLAJ Employees or any groups
thereof.
6.5 Access and Information. Each member of the Granite Group
covenants and agrees that, pending the Closing, each member of the Granite
Group shall give Buyer and its counsel, accountants, engineers, investment
bankers, potential lenders and other authorized representatives reasonable
access, at Buyer's risk and expense, during normal business hours throughout
the period prior to the Closing Date or the earlier termination of this
Agreement, to all of WLAJ's (to the extent in their possession), WWMT's, WWMT
License, Inc.'s, WLAJ, Inc.'s, Seller's and Granite's (to the extent relating
to its operation of WLAJ under the Time Brokerage Agreement) books, records
(including all employee files), agreements, reports, and other documents and
all of the Broadcasting Assets to be acquired hereunder and shall furnish
Buyer, its counsel, accountants, engineers, investment bankers, potential
lenders and other authorized representatives during such period with copies
of all information concerning the affairs of Seller, WLAJ, Inc., WWMT
License, Inc., Granite (to the extent relating to its operation of WLAJ under
the Time Brokerage Agreement, ownership or control of Seller, WWMT License,
Inc., WLAJ, Inc. or the Broadcasting Assets, or employment of the WLAJ
Employees) and WWMT as they may reasonably request in order to enable Buyer
to make such examinations and investigations thereof as it shall deem
necessary, including, without limitation, all contracts, agreements, and
leases pertaining to the business and
71
operations of WWMT or otherwise included in the Broadcasting Assets and any
amendments, renewals or other modifications thereof, and each member of the
Granite Group will make appropriate officers, employees, attorneys, agents
and accountants available to discuss with Buyer and its representatives such
aspects of the business and operations of WLAJ (under the Time Brokerage
Agreement) and WWMT as Buyer may reasonably require (it being understood that
the foregoing shall include such access as Buyer may reasonably require to
the management of Granite to enable Buyer to obtain information about the
employees of WWMT or the WLAJ Employees that Buyer will employ after it
acquires the Granite Broadcasting Assets); provided, however, that in each
instance mutually satisfactory arrangements shall be made in advance in order
to avoid interruption and to minimize interference with the normal business
and operations of Seller, WWMT or WLAJ.
6.6 Title Information. Within forty-five (45) days after the date
hereof, Granite shall obtain, at its expense, and deliver to Buyer the
following:
6.6.1 Title Commitment. With respect to each parcel of
real estate set forth in Schedule A-1 and Schedule A-2 and each parcel of
real estate owned or leased by Seller, Granite or Lansing with respect to
WLAJ (a) a commitment of a title company reasonably satisfactory to Buyer to
issue an owner's or lessee's, as applicable, title insurance policy on a form
promulgated by the State Board of Insurance of Michigan, and if
72
more than one form is available, on a form reasonably satisfactory to Buyer,
(with such endorsements as Buyer shall reasonably require) insuring the fee
simple title of Buyer in such real estate (or in the case of leased real
property, Buyer's leasehold interest therein) in an amount reasonably agreed
to by Buyer and Granite, free and clear of all Encumbrances other than
Permitted Encumbrances and (b) such affidavits, certificates, tax forms and
indemnities as are required by the title insurance company.
6.6.2 Survey. As-built surveys in form and content
reasonably satisfactory to Buyer, meeting ALTA standards and certified by a
duly licensed and registered land surveyor in the State of Michigan
(reasonably satisfactory to Buyer) of the real estate covered by the title
insurance commitments deliverable under Section 6.6.1 hereof containing a
certification reasonably satisfactory to the parties and made in accordance
with, and satisfying, the requirements of such certification.
6.7 Buyer's Covenants. Buyer covenants and agrees that prior to
Closing:
6.7.1 Litigation. Buyer shall notify Granite of any
litigation pending or, to its actual knowledge threatened against or
affecting Buyer or which challenges or seeks any damages or other payments in
connection with the transactions contemplated hereby.
6.7.2 No Breach of Representations and Warranties.
Neither Buyer, nor any of its officers, directors,
73
employees, agents representatives of Affiliates shall take any action or
pursue any other course of conduct, or fail to take any action, that would
cause any of the representations and warranties made by Buyer in this
Agreement (or any document delivered in connection herewith) to be materially
untrue, incorrect or inaccurate.
7. Conditions Precedent to the Obligations of the Parties.
7.1 Conditions Precedent to the Obligation of Buyer. The
obligations of the Buyer under this Agreement are subject, at the Buyer's
option, to the satisfaction on or prior to the Closing Date of each of the
following express conditions precedent:
7.1.1 FCC Consent. The conditions specified in Section
3.2 hereof shall have been met.
7.1.2 Accuracy of Representations and Warranties. All
representations and warranties of the members of the Granite Group contained
in this Agreement (and in any document delivered in connection herewith)
shall be true and correct in all material respects at and as of the Closing
Date as though made at and as of that time (without regard to any
"materiality" limiting or qualifying language stated therein).
7.1.3 Compliance with Agreement. Each member of the
Granite Group shall have performed and complied in all material respects with
all covenants, agreements and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing Date.
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7.1.4 No Obstructive Proceeding.
(a) No Litigation. No action, suit, investigation,
or proceeding shall have been instituted or be pending against or affecting
any of the parties to this Agreement or Lansing or any of their respective
Affiliates before any Governmental Authority to restrain or prohibit, or to
obtain substantial damages in respect of, this Agreement or the consummation
of the transactions contemplated hereby, which may reasonably be expected to
result in a preliminary or permanent injunction against consummating the
transactions contemplated hereby or, if the transactions contemplated hereby
were consummated, an order to nullify or render ineffective this Agreement or
such transactions, or the recovery against Buyer of substantial damages or
otherwise have a material adverse effect on Buyer or the business or
operations of WWMT and WLAJ in the aggregate taken as a whole;
(b) No Governmental Intervention. None of the
parties to this Agreement or their Affiliates shall have received written
notice from any Governmental Authority of: (i) its intention to institute any
action or proceeding to restrain or enjoin or nullify or render ineffective
this Agreement or the transactions contemplated hereby if consummated, or
commence any investigation into the consummation of this Agreement or the
transactions contemplated hereby; or (ii) the actual commencement of such an
investigation; provided, that, subject to the provisions of Section 3.2
hereof, in the event such a notice of
75
intention is received or such an investigation is commenced, this Agreement
may not be terminated by any of the parties for a period of thirty (30) days
from the earlier of the date such notice of intention is first received by
any party to this Agreement or notice of commencement of such an
investigation is first received by any party hereto (but consummation hereof
shall be delayed during such period), but may be terminated thereafter by any
party to this Agreement if, in the reasonable opinion of such party there is
a reasonable probability that such an investigation will result in an action
or proceeding of the type described in Section 7.1.4(a).
(c) No Order. No order, decree or judgment of any
Governmental Authority shall be subsisting against any of the parties which
would render it unlawful or materially restrain or limit Buyer's ability, as
of the Closing Date, to effect the transactions contemplated hereunder in
accordance with the terms hereof or to operate WWMT as presently being
conducted.
7.1.5 Adverse Change. No loss, destruction, impairment,
confiscation or condemnation of any of the Broadcasting Assets shall have
occurred by reason of fire, explosion, disaster, flood, accident, riot,
insurrection, war, act of God or other occurrence which individually or in
the aggregate has a materially adverse effect on the business, operations or
condition, financial or otherwise, of WWMT and WLAJ, in the aggregate taken
as a whole. In addition, since December 31, 1997, there shall have been no
material adverse change in the business,
76
operations or condition, financial or otherwise, of WWMT or WLAJ, taken as a
whole.
7.1.6 Consents. The members of the Granite Group shall
have obtained and delivered to Buyer all consents, approvals, and permits
necessary for the consummation of transactions contemplated hereby set forth
on Schedule 7.1.6 hereto, including, without limitation, (i) the agreements
of CBS and ABC, respectively, that the CBS Affiliation Agreement and the ABC
Affiliation Agreement may be assigned to Buyer upon closing of the purchase
by Buyer of the Granite Broadcasting Assets and the WLAJ Lansing Assets,
respectively; and (ii) the consents of all lessors of all tower and antennae
site leases for the assignment of such leases to Buyer.
7.1.7 Officers' Certificates. Granite shall have
delivered to Buyer a certificate signed by its Chairman, President, Vice
President, Secretary or Treasurer dated the Closing Date to the effect that
the conditions set forth in Sections 7.1.2, 7.1.3, 7.1.4, 7.1.5, 7.1.6,
7.1.12, 7.1.14 and 7.1.17 have been satisfied.
7.1.8 Authorization. Buyer shall have received certified
copies of all the respective actions taken by each member of the Granite
Group authorizing and approving the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereunder.
7.1.9 Opinions of Counsel. Buyer shall have received the
written opinion of Akin, Gump, Strauss, Xxxxx &
77
Xxxx, L.L.P., counsel for the members of the Granite Group, dated the Closing
Date, in the form reasonably satisfactory to Buyer. In rendering their
respective opinions, such counsel may rely, to the extent appropriate, as to
matters of fact, upon statements and certificates of officers of the members
of the Granite Group, as the case may be, and upon opinions attached to their
opinion from local or special counsel with respect to matters appropriately
covered by such local or special counsel opinions.
7.1.10 Certifications. Granite shall have delivered to
Buyer a schedule showing in all material respects all Contracts or agreements
or amendments, renewals or other modifications thereof (other than those
which would not be subject to disclosure pursuant to Section 4.7 hereof) that
any member of the Granite Group has entered into with respect to WWMT or WLAJ
after the date of this Agreement and which are to be assigned to Buyer
hereunder.
7.1.11 HSRA Waiting Period. The applicable waiting
period(s) under HSRA with respect to the transactions contemplated by this
Agreement shall have expired.
7.1.12 Copies of Documents. The members of the Granite
Group shall have delivered to Buyer copies of all documents required to be
delivered pursuant to the Agreement, including but not limited to, all
Contracts listed in the schedule delivered pursuant to Section 7.1.10 hereof.
7.1.13 FIRPTA Affidavits. At the Closing, each member of
the Granite Group shall execute and deliver to Buyer
78
affidavits pursuant to Section 1445(b)(2) of the Code in the form set forth
in Treas. Reg. Section 1.1445-2(b)(2)(iii)(B), and Buyer agrees that, except
as otherwise provided in Section 1445(b)(7) of the Code and the regulations
promulgated thereunder, upon the execution and delivery of such affidavits to
Buyer, and in reliance thereon, no deduction shall be made or claimed against
the Purchase Price by reason of the requirements of Sections 897 and 1445 of
the Code.
7.1.14 Film Contracts. Granite shall have satisfied in
full any and all payment and other obligations under all film and other
programming contracts included in the Granite Broadcasting Assets to which it
or Seller is a party or to which it or any other member of the Granite Group
is bound, that have become or are due and payable at or prior to the Closing.
7.1.15 Title Insurance Policies.
(a) Title Insurance Policies. At the Closing, at
Granite's expense, Granite shall have delivered to Buyer owner's or lessee's
title insurance policies, dated the Closing Date on forms promulgated by the
State Board of Insurance of Michigan (or if more than one form is available,
on a form reasonably satisfactory to Buyer) covering the real estate covered
by the commitments referred to in Section 6.6.1 hereof, issued by the title
insurance company which issued such commitments insuring the fee simple title
of Buyer in the real estate (or, in the case of leased real property, Buyer's
leasehold interest therein) in an amount reasonably agreed to by Buyer and
Granite, free and clear
79
of all Encumbrances, other than Permitted Encumbrances (excluding Permitted
Encumbrances included in clause (v) of the definition of Permitted
Encumbrances) and containing such endorsements as Buyer shall reasonably
require (collectively, "Title Policies").
(b) Survey. At least twenty (20) business days
prior to the Closing, at Granite's expense, Seller shall have delivered to
Buyer the surveys required by Section 6.6.2 recertified to a date within 120
days of the Closing.
7.1.16 Proceedings. All proceedings to be taken in
connection with the consummation of the transactions contemplated by this
Agreement, and all documents incident thereto, shall be reasonably
satisfactory in form and substance to Buyer and its counsel, and Buyer and
its counsel shall have received copies of such documents as Buyer or its
counsel, as the case may be, may reasonably request in connection with said
transactions.
7.1.17 Removal of Encumbrances. All Encumbrances of any
kind and nature shall have been removed from the Granite Broadcasting Assets,
other than Permitted Encumbrances. For purposes of this Section 7.1.17, the
definition of Permitted Encumbrances shall not include clause (v) thereof.
7.1.18 Continued Affiliation. Seller shall have been
affiliated with CBS, and Lansing shall have been affiliated with ABC, at all
times from the date hereof up to and including the Closing Date.
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7.1.19 Delivery of Instruments of Conveyance and Transfer.
Buyer shall have received the instruments and other documents (in form and
substance reasonably satisfactory to its counsel) required to be delivered to
it pursuant to Section 8 hereof.
7.1.20 Tower and Antennae Surveys and Inspections. Buyer
shall have obtained at its own cost and expense such inspections and surveys
of transmission towers and antennae owned, used or leased by Granite, WLAJ,
Inc., Seller, WWMT License, Inc. in connection with the operations of WWMT
and WLAJ, and the results of such inspections and surveys shall be reasonably
satisfactory to Buyer. Notwithstanding anything to the contrary contained
herein, this condition shall expire on the thirtieth day after the date
hereof.
7.1.21 Environmental Reports. Buyer shall have obtained
the Environmental Assessment Report and any Follow-On Investigations, as
described in Section 16 hereof, and the results of such reports and
investigations shall be reasonably satisfactory to Buyer. Notwithstanding
anything to the contrary contained herein, this condition as to the
Environmental Assessment Report shall expire on the thirtieth day after the
date hereof, and as to the Follow-On Investigations, the thirtieth day after
the date the Environmental Assessment Report is delivered. Each member of the
Granite Group acknowledges that the disclosure of the environmental reports
delivered by the Granite Group as of the date hereof and included in the
Schedules hereto do not
81
eliminate as to matters disclosed in such reports the condition that the
Environmental Assessment Reports and any Follow-On Investigations be
reasonably satisfactory to Buyer.
7.2 Conditions to Obligations of Granite Group. The obligations
of the members of the Granite Group under this Agreement are subject, at
Granite's option, to the satisfaction on or prior to the Closing of each of
the following express conditions precedent:
7.2.1 FCC Consent. The conditions specified in Section
3.2 hereof shall have been met.
7.2.2 Accuracy of Representations and Warranties. All
representations and warranties of Buyer contained in this Agreement (and any
document delivered in connection herewith) shall be true and complete in all
material respects at and as of the Closing Date (without regard to any
"materiality" limiting or qualifying language stated therein).
7.2.3 Compliance with Agreement. Buyer shall have
performed and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed or
complied with by it prior to or on the Closing Date.
7.2.4 Delivery of Instruments of Assumption. Buyer shall
have delivered to the members of the Granite Group, in accordance with
Section 2.4 hereof (in form and substance reasonably satisfactory to
Granite's counsel), instruments whereby Buyer assumes and agrees to perform
the Assumed Obligations.
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7.2.5 No Obstructive Proceeding.
(a) No Litigation. No action, suit, investigation,
or proceeding shall be pending against any of the parties to this Agreement
or any of their Affiliates before any court or any other Governmental
Authority to restrain or prohibit, or to obtain substantial damages in
respect of, this Agreement or the consummation of the transactions
contemplated hereby, which may reasonably be expected to result in a
preliminary or permanent injunction against consummating the transactions
contemplated hereby or, if the transactions contemplated hereby were
consummated, an order to nullify or render ineffective this Agreement or such
transactions, or the recovery against Granite or Seller of substantial
damages or otherwise have a material adverse effect on Granite, WLAJ, Inc. or
Seller, taken as a whole.
(b) No Governmental Intervention. None of the
parties to this Agreement or their Affiliates shall have received written
notice from any Governmental Authority of: (i) its intention to institute any
action or proceeding to restrain or enjoin or nullify or render ineffective
this Agreement or the transactions contemplated hereby if consummated, or
commence any investigation into the consummation of this Agreement and the
transactions contemplated hereby; or (ii) the actual commencement of such an
investigation; provided, that, subject to the provisions of Section 3.2
hereof, in the event such a notice of intention is received or such an
investigation is commenced, this Agreement may not be terminated by any of
the parties for a period
83
of thirty (30) days from the earlier of the date such notice of intention is
first received by any party to this Agreement or notice of commencement of
such an investigation is first received by any party hereto (but consummation
hereof shall be delayed during such period), but may be terminated thereafter
by any party to this Agreement if, in the reasonable opinion of such party
there is a reasonable probability that such an investigation will result in
an action or proceeding of the type described in Section 7.2.5(a).
(c) No Order. No order, decree or judgment of any
Governmental Authority shall be subsisting against any of the parties which
would render it unlawful or materially restrain or limit a member of the
Granite Group's ability, as of the Closing Date, to effect the transactions
contemplated hereunder in accordance with the terms hereof.
7.2.6 Proceedings. All proceedings to be taken in
connection with the consummation of the transactions contemplated by this
Agreement, and all documents incident thereto, shall be reasonably
satisfactory in form and substance to Granite and its counsel, and Granite
and its counsel shall have received copies of such documents as Granite or
its counsel, as the case may be, may reasonably request in connection with
said transactions.
7.2.7 Opinion of Counsel. The Granite Group shall have
received the written opinion of each of Xxxxx X. Xxxxxx, counsel for Buyer
and Xxxxxx & Xxxxxxx, FCC counsel to
84
Buyer, dated the Closing Date, in the form reasonably satisfactory to
Granite. In rendering its respective opinion, such counsel may rely, to the
extent appropriate, as to matters of fact, upon statements and certificates
of officers of Buyer, and upon opinions attached to their opinion from local
or special counsel with respect to matters appropriately covered by such
local or special counsel opinions.
7.2.8 HSRA Waiting Period. The applicable waiting
period(s) under HSRA with respect to the transactions contemplated by this
Agreement shall have expired.
7.2.9 WLAJ Documents. If the closing of the transactions
contemplated by the WLAJ Documents has not occurred prior to the Closing,
Granite and its Affiliates shall have been released from all of, and have no
further obligations or Liabilities under or with respect to, the WLAJ
Documents.
7.2.10 Authorizations. Seller shall have received
certified copies of all of the actions taken by Buyer authorizing and
approving the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereunder.
8. Instruments of Conveyance and Transfer.
8.1 Instruments of Conveyance and Transfer of Real Property. At
the Closing, to effect the transfers, conveyances or assignments from Seller,
WLAJ, Inc., WWMT License, Inc. and Granite to Buyer, the applicable member of
the Granite Group shall
85
deliver to Buyer, in form and substance reasonably satisfactory to Buyer the
following:
8.1.1 Real Property.
(a) Deeds, certificates, assignments and other
instruments of transfer assigning, transferring and conveying to Buyer
marketable fee simple and insurable title (at normal rates) to all of the
owned real property included in the Granite Broadcasting Assets;
(b) Certificates, assignments and other necessary
instruments in form reasonably satisfactory to Buyer, assigning to Buyer all
right, title and interest of the applicable member of the Granite Group in
and under all leases and all leasehold and option interests included in the
Granite Broadcasting Assets; and
(c) Such other instruments or documents as Buyer
may reasonably request or as may be reasonably required by its title insurers
in connection with the transfer to Buyer of the real property to be
transferred hereunder, all of said transfers or assignments pursuant to
clause (a) or (b) above, being free and clear of all Encumbrances of any kind
except Permitted Encumbrances.
8.2 Instruments of Conveyance and Transfer of Personal Property.
At the Closing, to effect the transfers, conveyances and assignments from
Seller, WWMT License, Inc., WLAJ, Inc. and Granite to Buyer, the applicable
member of the Granite Group shall deliver to Buyer the following bills of
sale, certificates,
86
assignments and other instruments of transfer assigning, transferring and
conveying to Buyer marketable title to all of the personal property included
in the Granite Broadcasting Assets, free and clear of all Encumbrances of any
kind other than Permitted Encumbrances, all in form reasonably satisfactory
to counsel for Buyer, and dated the Closing Date:
8.2.1 Assignment of Leases. Assignments of all leases and
leasehold interests in personal property included in the Granite Broadcasting
Assets, including all rights under the lease agreements referred to in
Schedule B-1 and B-2 hereto;
8.2.2 Bills of Sale. Bills of sale for all tangible
personal property included in the Granite Broadcasting Assets;
8.2.3 Assignments of Licenses. Assignments of the WWMT
Licenses and all other authorizations for WWMT and, if the closing of the
transactions contemplated by the WLAJ Documents has occurred prior to the
Closing in sufficient time to obtain a Final Order for the assignment of the
WLAJ Licenses, assignments of the WLAJ Licenses and all other authorizations
for WLAJ;
8.2.4 Assignments of Contracts. Assignments of all
contracts and other intangible assets included in the Granite Broadcasting
Assets to be transferred pursuant to this Agreement; and
8.2.5 Other Documents. Such other instruments or
documents as Buyer may reasonably request in connection with the transfer to
it of the personal property to be transferred, not
87
inconsistent with the obligations of Granite or Seller under this Agreement.
9. Employees.
9.1 Buyer to Hire. On the Closing Date, Buyer shall offer
employment to all persons who are employees of WWMT and all WLAJ Employees
(collectively, "Business Employees"), who are in active full or part-time
employment with WWMT or WLAJ on such date (other than those on long-term
disability) at such cash compensation and with such benefits as are
comparable to those received by other employees of Buyer (other than those
employees with employment contracts set forth on Schedule C-1 or C-2, as to
which the base compensation shall be as set forth in such employment
contracts for the remainder of the term of such contracts); provided, that,
except as otherwise provided herein or in the employment contracts set forth
on Schedule C-1 or C-2 and assumed by Buyer pursuant to Section 2.4 hereof,
nothing herein shall require Buyer to continue the employment of any such
person for any period of time thereafter or to maintain any particular type
or level of employee benefits. Periods of employment with Seller or Granite
(or their predecessors, including, without limitation, any current or former
Affiliate of Granite) shall be taken into account for purposes of
determining, as applicable, eligibility for participation, eligibility for
early retirement and subsidies and vesting of any Business Employee under any
of Buyer's employee benefit plans, policies, practices or arrangements, but
no credit for past service for benefits shall be
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recognized; provided, however, that Buyer shall not be required to take into
account periods of employment with predecessors of Granite or Seller unless
Granite or Seller granted such credit at the time the employees were
transferred to Seller or Granite from such predecessors.
9.2 Cooperation. Granite and Seller shall cooperate with Buyer's
attempts to obtain information relating to Granite's and Seller's employees,
including making available to Buyer employees' personnel files and
performance evaluations. Granite and Seller will make all reasonable efforts
to assist Buyer in making a smooth transition after Closing.
9.3 No Liability for Employee Plans. Buyer is not assuming any
Station Plan or any Liabilities with respect thereto. Nothing herein shall
obligate or be deemed to obligate Buyer to create, adopt or maintain any
employment agreement or Station Plan, except to the extent of its obligations
as to assumed employment contracts. Notwithstanding the forgoing, Buyer's
welfare plans for Business Employees hired by Buyer at Closing shall provide
adequate coverage as of the Closing, such that neither Granite nor any of its
Affiliates shall have any liability under Section 4980B of the Code with
respect to such employees. Granite shall be solely liable and responsible
for providing continuation coverage under Code Section 4980B and Part 6 of
Title I of ERISA with respect to any qualifying event that occurs on or prior
to the date hereof, including any continuation coverage requirements that
arise as a result of the failure of an employee
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to accept employment offered pursuant to Section 9.1 above. Any expenses and
benefits with respect to medical claims incurred by any current or former
employees of WWMT or the WLAJ Employees or their covered dependents on or
before the date hereof shall be the responsibility of Granite.
9.4 Indemnity. The members of the Granite Group shall, jointly and
severally, indemnify, defend and hold Buyer and its Affiliates harmless from
and against any and all claims, actions, suits, demands, proceedings, losses,
expenses, damages, obligations and Liabilities (including costs of
collection, attorney's fees and other costs of defense) arising out of or
otherwise in respect of: (a) Seller's or Granite's termination of any
employee or any claim by an employee for wrongful assignment of any
employment agreement to Buyer; (b) any claim made for severance pay arising
in connection with any of Granite's or Seller's employment or termination of
any current or former employee of Granite or Seller or any claim by an
employee for wrongful assignment of any employment agreements to Buyer; (c)
benefits or claims incurred on or after the date hereof by any current or
former employees under, or in connection with, any Employee Plan, program or
arrangement maintained or contributed to by Seller or Granite; and (d) claims
or Liabilities arising by reason of or relating to any failure of Seller or
Granite to comply with Code Section 4980B or Part 6 of Title I of ERISA.
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10. Risk of Loss; Failure of Broadcast Transmission.
10.1 Risk of Loss. The risk of any loss, damage or impairment,
confiscation or condemnation of the Granite Broadcasting Assets and the
Station Licenses or any part thereof from fire or any other casualty or cause
shall be borne by Granite and Seller at all times prior to the Closing. In
any such event, the proceeds of or any claim for any loss payable under any
insurance policy, claim, judgment or award with respect thereto
(collectively, the "Proceeds") shall be paid to Granite or Seller, which
shall substantially repair, replace or restore any such Granite Broadcasting
Assets as soon as possible after its loss, impairment, confiscation or
condemnation; provided, however, that, if Granite reasonably concludes that
the Proceeds plus any deductible amounts under any applicable insurance
policies are inadequate to complete such repair, replacement and restoration,
Granite may, unless Buyer accepts payment of such Proceeds and deductible
amounts from Seller in lieu of such repair, replacement or restoration, by
written notice thereof to Buyer within thirty (30) days of any such
occurrence, terminate this Agreement without any continuing obligation either
from Buyer, Granite or Seller to the other.
10.2 Failure of Broadcast Transmission. If any event referred to
in Section 10.1 hereof occurs or if any event occurs which prevents broadcast
transmission by WWMT or WLAJ in the normal and usual manner and if Seller or
Granite cannot restore or replace the Broadcasting Assets so that such
condition(s) are
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cured and normal and usual transmission can be resumed before the Closing
Date and Granite has not terminated this Agreement, as permitted by Section
10.1 hereof, the Closing Date shall be postponed, the exact date and time of
such postponed Closing to be such date and time within the effective period
of the Final Order contemplated under this Agreement as shall be designated
by Granite upon five (5) days' written notice to Buyer. In the event that
such Broadcasting Assets cannot be restored within the effective period of
the Final Order and Seller has not terminated this Agreement, as permitted by
Section 10.1 hereof, the parties shall join in an application or applications
requesting the FCC to extend the effective period of its consent for a period
of an additional sixty (60) days. If such Broadcasting Assets have not been
restored or replaced by the Closing Date, as and to the extent postponed
pursuant to this Section 10.2, each party hereto shall each have the right,
by giving written notice of its election to do so to the other parties, to
terminate this Agreement forthwith without any further obligation hereunder.
Anything herein contained to the contrary notwithstanding, Buyer may, at its
option, proceed to close the transaction forthwith and complete the
restoration and replacement of the damaged Broadcasting Assets after the
Closing Date, in which event Granite shall pay or otherwise transfer to Buyer
any and all proceeds and deductible amounts under applicable insurance
policies of the Granite Group.
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11. Books and Records. Except for the Excluded Assets, Buyer shall be
entitled to all records, including but not limited to Contracts, the WWMT
Licenses, the WLAJ Licenses (if transferred to Buyer at the Closing) and all
other licenses, permits and authorizations under any applicable law, books of
account, technical information and engineering data, programming information,
employment records, customer lists and files, advertising records, FCC logs,
asset history files, and other lease, documents and correspondence of Granite
or Seller relating to their operation of WWMT or WLAJ prior to the Closing
Date as shall be reasonably necessary to the maintenance of the business
affairs of WWMT and WLAJ after the Closing Date; provided, however, that for
a period of six (6) years Buyer shall retain and make available for
inspection by Granite, Seller or its representatives for any reasonable
purpose all such records, books of account, files, documents and
correspondence, and Buyer shall not dispose of, alter or destroy any such
materials without giving ninety (90) days' prior written notice to Granite so
that Granite may, at its expense, examine, make copies of or take possession
of such materials. Within three (3) days after the Closing, the members of
the Granite Group shall deliver to Buyer in accordance with Buyer's
instructions all documents relating to WWMT and WLAJ (other than Excluded
Assets) that are in the possession of any member of the Granite Group or any
of their representatives or agents and Seller and Granite may, at their
expense, make and keep copies of all or any of such documents.
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12. Possession and Control of WWMT and WLAJ. Notwithstanding any other
provision of this Agreement, between the date of this Agreement and the
Closing Date, Buyer shall not directly or indirectly control, supervise or
direct, or attempt to control, supervise or direct, the operations of WWMT or
WLAJ, and the conduct of such business operations, including control and
supervision of programming, shall be the sole responsibility of, and in the
complete discretion and independent and separate control of, Seller and/or
Granite. Neither title to WWMT, WLAJ, the Granite Broadcasting Assets nor
right to possession thereof shall pass to Buyer until the Closing Date.
13. Brokers. Buyer represents and warrants to the Granite Group that
it has not engaged any broker, finder or consultant in connection with this
Agreement and the transactions contemplated herein or any aspect thereof.
Granite represents and warrants to Buyer that no member of the Granite Group
has engaged any broker, finder or consultant in connection with this
Agreement and the transactions contemplated herein or any aspect thereof.
Each party agrees to indemnify and hold the other harmless from any and all
loss, cost, liability, damage and expense (including legal and other expenses
incident thereto) in respect of any claim by a broker, finder or consultant
for a fee or commission or similar payment by virtue of any alleged
agreements, arrangements or understandings with the indemnifying party.
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14. Survival; Indemnification.
14.1 Survival. The several representations and warranties of the
parties contained in this Agreement (or in any document delivered in
connection herewith) shall be deemed to have been made on the date of this
Agreement and on the Closing Date, shall survive the Closing Date and shall
remain operative and in full force and effect without limitation; provided,
however, that any claim with respect to the representations and warranties
of: (a) the members of the Granite Group contained in (i) Sections 4.1
(Organization and Standing), 4.2 (Authorization and Binding Obligations), 4.3
(No Contravention; Consents), 4.4 (Title to Assets), 4.5 (Condition of
Assets), 4.6 (Licenses and Authorizations), 4.7 (Contracts), 4.8 (Franchises,
Trademarks and Trade Names), Section 4.9 (Employee Plans; ERISA), 4.10
(Financial Statements), 4.11 (Litigation; Compliance), 4.12 (Cable Carriage),
4.13 (Labor), 4.14 (Affiliated and Recent Transactions), 4.17 (Miscellaneous)
and 13 (Brokers) must be made within twenty-four (24) months from the Closing
Date, (ii) Section 4.16 (Environmental Matters) must be made within three (3)
years from the Closing Date and (ii) Section 4.15 (Taxes) may be made at any
time after the Closing Date (subject to any applicable statutes of
limitations); or (b) Buyer contained in Sections 5.1 (Organization and
Standing), 5.2 (Authorization and Binding Obligations), 5.3 (No
Contravention), 5.4 (Litigation), 5.5 (Absence of Knowledge as to Certain
Facts), 5.6 (Miscellaneous) and 13 (Brokers) must be made within twenty-four
(24) months from the Closing Date. The
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several covenants and agreements of the parties contained in this Agreement
(or in any document delivered in connection herewith) shall remain operative
and in full force and effect without any time limitation, except as any such
covenant or agreement shall be limited in duration by the express terms
hereof. Notwithstanding the foregoing, (i) any representation, warranty,
covenant or agreement that would otherwise terminate in accordance with this
Section 14.1 will continue to survive if a claim for indemnity shall have
been made under this Section 14 on or prior to such termination date, until
such claim has been satisfied or otherwise resolved; and (ii) the foregoing
limitation periods shall not apply to any claim for breach of representation
or warranty based upon intentional misrepresentation.
14.2 Granite Group Indemnification - Breach. The members of the
Granite Group, jointly and severally, agree to indemnify, defend and hold
Buyer harmless from and after the Closing from and against any and all loss,
cost, Liability, damage and expenses (including reasonable legal and other
expenses incident thereto) resulting from breach of the representations,
warranties, covenants and agreements of any member of the Granite Group
contained in this Agreement; provided, however, that any claim for a breach
of a representation or warranty shall have been made prior to the expiration
date thereof, if any, set forth in Section 14.1 hereof.
14.3 Granite Group Indemnification - Liabilities. The members of
the Granite Group, jointly and severally, agree to
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indemnify, defend and hold Buyer harmless from and after the Closing from and
against: (a) any and all Liabilities (other than the Assumed Obligations),
losses, damages, actions, suits, proceedings, demands, assessments,
judgments, costs and expenses (including reasonable legal and other expenses
incident thereto), resulting from causes of action or claims of any kind
(excluding any and all claims and Liabilities arising or resulting from a
breach of any of Buyer's agreements or warranties or from an inaccuracy in
any of Buyer's representations hereunder) asserted by unrelated third parties
and arising with respect to the operations of WWMT, WLAJ (by Granite or WLAJ,
Inc.), Granite, WLAJ, Inc., WWMT License, Inc. or Seller prior to the Closing
Date, including any Liabilities arising from any labor or employment actions
or claims, where the events giving rise to such actions or claims arose,
prior to the Closing Date; (b) all Retained Liabilities and (c) all Taxes of
Granite, Seller, WLAJ, Inc. or WWMT License, Inc. that are (i) attributable
to periods ending prior to the Closing Date other than Prorated Obligations
that are Assumed Liabilities, or (ii) any other Taxes of Granite or its
Affiliates not expressly assumed by Buyer under this Agreement. Granite shall
be entitled to any net refunds of Taxes (including interest thereon) with
respect to the periods ending prior to the Closing Date. Subject to Section
19.2 hereof, any Tax resulting from Granite or Seller's sale of the Granite
Broadcasting Assets shall be deemed to be a Tax solely attributable to a
pre-Closing period.
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14.4 Buyer's Indemnification. Buyer agrees to indemnify, defend
and hold the members of the Granite Group harmless from and after the Closing
Date from and against:
14.4.1 Buyer's Indemnification - Breach. Any and all loss,
cost, Liability, damage and expense (including reasonable legal and other
expenses incident thereto) resulting from Buyer's breach of any of its
representations, warranties, covenants and agreements under this Agreement;
provided, however, that any such claim, for breach of a representation or
warranty shall have been made prior to the expiration date thereof, if any,
set forth in Section 14.1 hereof; and
14.4.2 Buyer's Indemnification - Liabilities. Any
Liabilities (other than Retained Liabilities), and any and all actions,
suits, proceedings, demands, assessments, judgments, costs and expenses
(including reasonable legal and other expenses incident thereto) resulting
from causes of action or claims of any kind asserted by unrelated third
parties arising with respect to the operations of WWMT (or WLAJ under the
Time Brokerage Agreement) or Buyer on or after the Closing Date (excluding
any and all such Liabilities arising or resulting from a breach of any of the
members of the Granite Group's agreements or covenants or an inaccuracy of
any of the members of the Granite Group's representations or warranties
hereunder) and any Assumed Obligations.
14.5 Granite Group's Obligations. Notwithstanding anything to the
contrary in Section 14.2 above, no member of the
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Granite Group shall be obligated to make any payments under Section 14.2
above with respect to a breach of a representation or warranty (a) unless the
aggregate amounts of all claims made thereunder equals or exceeds $250,000,
whereupon Buyer shall be entitled to indemnification for claims in excess of
such amount or (b) in excess of $75,000,000 in the aggregate; provided,
however, that the foregoing limitations shall not apply to claims for
indemnification based upon intentional misrepresentation or with respect to
Retained Liabilities.
14.6 Taxes. The members of the Granite Group, on the one hand, and
Buyer, on the other hand, agree to furnish or cause to be furnished to each
other, upon request, as promptly as practicable, such information and
assistance (including access to books and records) relating to the
Broadcasting Assets as is reasonably necessary for the preparation of any
return of Taxes, claim for refund or audit, and the prosecution or defense of
any claim, suit or proceeding relating to any proposed adjustment.
14.7 Indemnification Claim. Upon obtaining knowledge of any claim
or demand which has given rise to, or could reasonably give rise to, a claim
for indemnification hereunder, the party seeking indemnification
("Indemnitee") shall promptly give written notice ("Notice of Claim") of such
claim or demand to the other party ("Indemnitor"). Indemnitee shall furnish
to Indemnitor in reasonable detail such information as Indemnitee may have
with respect to such indemnification claim (including copies of any summons,
complaint or other pleading which may have been served on
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it and any written claim, demand, invoice, billing or other document
evidencing or asserting the same). Subject to the limitations set forth in
Section 14.1 hereof, no failure or delay by Indemnitee in the performance of
the foregoing shall reduce or otherwise affect the obligation of Indemnitor
to indemnify and hold Indemnitee harmless, except to the extent that such
failure or delay shall have adversely affected Indemnitor's ability to defend
against, settle or satisfy any Liability, damage, loss, claim or demand for
which Indemnitee is entitled to indemnification hereunder.
14.8 Notice of Claim. If the claim or demand set forth in the
Notice of Claim given by Indemnitee pursuant to Section 14.7 hereof is a
claim or demand asserted by a third party, Indemnitor shall have fifteen
business (15) days after the Date of Notice of Claim to notify Indemnitee in
writing of its election to defend such third party claim or demand on behalf
of the Indemnitee. If Indemnitor elects to defend such third party claim or
demand, Indemnitee shall make available to Indemnitor and its agents and
representatives all records and other materials which are reasonably required
in the defense of such third party claim or demand and shall otherwise
cooperate with, and assist Indemnitor in the defense of, such third party
claim or demand, and so long as Indemnitor is defending such third party
claim in good faith, Indemnitee shall not pay, settle or compromise such
third party claim or demand. If Indemnitor elects to defend such third party
claim or demand, Indemnitee shall have the right to
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participate in the defense of such third party claim or demand, at
Indemnitee's own expense. In the event, however, that Indemnitee reasonably
determines that representation by counsel to Indemnitor of both Indemnitor
and Indemnitee may present such counsel with a potential conflict of interest
that would make separate representation inadvisable under generally accepted
standards of professional conduct, or where non-monetary relief is being
sought against Indemnitee by a third party, then such Indemnitee may elect to
defend such third party claim or demand and employ separate counsel to
represent or defend it in any such action or proceeding and Indemnitor will
pay the reasonable fees and disbursements of such counsel; provided, however,
that Indemnitee's defense of such action or proceeding shall not limit
Indemnitee's right to indemnification under this Section 14 if it is
ultimately determined that indemnification is due from Indemnitor. If
Indemnitor does not elect to defend such third party claim or demand or does
not defend such third party claim or demand in good faith, Indemnitee shall
have the right, in addition to any other right or remedy it may have
hereunder at Indemnitor's expense, to defend such third party claim or
demand; provided, however, that (a) Indemnitee shall not have any obligation
to participate in the defense of, or defend, any such third party claim or
demand; and (b) Indemnitee's defense of or its participation in the defense
of any such third party claim or demand shall not in any way diminish or
lessen the obligations of
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Indemnitor under the agreements of indemnification set forth in this Section
14.
14.9 Indemnitor's Obligations. Except for third party claims being
defended in good faith, Indemnitor shall satisfy its obligations hereunder in
cash within thirty (30) days after the Date of Notice of Claim.
14.10 Date of Notice of Claim. The term "Date of Notice of
Claim" shall mean the date the Notice of Claim is effective pursuant to
Section 19.5 hereof.
14.11 Consent of Indemnification. No claim giving rise to a Notice
of Claim shall be compromised or settled except with the prior written
consent of the Indemnitee, which consent shall not be unreasonably withheld.
14.12 Subrogation. In the event that any member of the Granite
Group makes any payment to Buyer for indemnification for which Buyer could
have collected on a claim against a third party (including Lansing under the
WLAJ Documents but excluding insurance claims), Granite shall be entitled to
pursue claims and conduct litigations on behalf of Buyer and any of its
successors, to pursue and collect on any indemnification or other remedy
available to Buyer thereunder with respect to such claim and generally to be
subrogated to the rights of Buyer.
14.13 Limitation on Liability. The parties hereto acknowledge
and agree that from and after the Closing the sole and exclusive remedy with
respect to any and all claims relating to the subject matter of this
Agreement (other than any claims
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relating to a breach of a covenant or agreement under this Agreement which by
its terms contemplates performance after the Closing) shall be made pursuant
to the provisions of this Section 14.
15. Xxxx-Xxxxx-Xxxxxx Filings. As promptly as practicable after the
date of this Agreement, but in no event later than twenty (20) business days,
the parties hereto shall make or cause to be made any and all filings which
are required under HSRA with respect to the transactions contemplated by this
Agreement, the filing fees for which shall be shared equally by Buyer and
Granite, and shall cooperate in the taking of all steps that are necessary,
proper or desirable to expedite the preparation and filing of such
notification and the furnishing of all information required in connection
therewith.
16. Environmental Assessment.
16.1 Phase I. Buyer has retained, or will retain, at its expense,
an environmental consultant (the "Consultant") to perform a non-invasive
Phase I environmental site assessment of the real property listed on
Schedules A-1 and A-2 and owned, leased or operated by any member of the
Granite Group or Lansing. As soon as practicable after the date hereof, the
Consultant will complete its field work and deliver a written report to
Buyer, Granite and Seller (the "Environmental Assessment Report").
16.2 Environmental Condition. If the Environmental Assessment
Report concludes that there is information upon which the existence of
Environmental Conditions can reasonably be
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inferred, and recommends further investigation, Buyer shall have the option
to request the Consultant to perform such further investigation (the
"Follow-On Investigation"), which may include sampling and analysis of soils,
surface water and ground water at or under the real property listed on
Schedules A-1 and A-2 and owned, leased or operated by any member of the
Granite Group or Lansing, and the Follow-On Investigation shall be conducted
by the Consultant at Buyer's expense and risk. Buyer agrees to restore such
real property to substantially the condition that existed prior to the
Follow-On Investigation.
16.3 Granite Group's Obligations. The preparation and existence of
the Environmental Assessment Report and the Follow-On Investigation, if any,
shall not affect the obligations of the Granite Group hereunder, including
without limitation such obligations as this Agreement may impose regarding
the accuracy of representations and warranties in Section 4.16 hereof and
indemnification under Section 14 hereof.
17. Termination.
17.1 Events of Termination. This Agreement may be terminated:
17.1.1 Buyer. Subject to Section 19.1 hereof, by Buyer, if
the Closing shall not have occurred on or prior to June 30, 1998 (other than
as a result of the failure by Buyer or its Affiliates to comply fully with
its obligations under this Agreement);
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17.1.2 Granite. Subject to Section 19.1 hereof, by
Granite, if the Closing shall not have occurred on or prior to June 30, 1998
(other than as a result of the failure by any member of the Granite Group or
their respective Affiliates to comply fully with its obligations under this
Agreement);
17.1.3 Mutual Consent. By mutual consent of Buyer, Granite
and Seller;
17.1.4 By Granite on Breach. Subject to Section 19.1
hereof, by Granite if (a) Buyer is in material breach of this Agreement and
(b) neither Granite nor Seller is then in material breach of this Agreement;
17.1.5 By Buyer on Breach. Subject to Section 19.1 hereof,
by Buyer if (a) a member of the Granite Group is in material breach of this
Agreement and (b) Buyer is not then in material breach of this Agreement;
17.1.6 Granite or Buyer. Subject to Section 19.1 hereof,
by Granite or by Buyer if, at or before the Closing, any condition set forth
herein for the benefit of the Granite Group or Buyer, respectively, shall not
have been timely met and cannot be met on or before the June 30, 1998 and has
not been waived;
17.1.7 Other. As otherwise provided in this Agreement.
17.2 Effect of Termination.
17.2.1 Effect. If this Agreement is validly terminated
pursuant to Section 17.1, this Agreement will forthwith
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become null and void, and there will be no liability or obligation on the
part of any party hereto (or any of their respective officers, directors,
employees, agents or other representatives or Affiliates), except as provided
in Section 17.2.2 hereof and except that the provisions with respect to
expenses in Section 19.2 hereof and confidentiality in Section 19.18 hereof
will continue to apply following any such termination.
17.2.2 Generally. Notwithstanding any other provision in
this Agreement to the contrary, upon termination of this Agreement pursuant
to Section 17.1 hereof (excluding Section 17.1.3 hereof), the members of the
Granite Group will remain liable to Buyer for any willful breach of this
Agreement by any member of the Granite Group existing at the time of such
termination, and Buyer will remain liable to the Granite Group for any
willful breach of this Agreement by Buyer existing at the time of such
termination, and the members of the Granite Group, on the one hand or Buyer,
on the other hand, may seek such remedies, including damages and fees of
attorneys, against the other with respect to any such breach as are provided
in this Agreement or as are otherwise available at law or in equity.
18. Covenant Against Competition; Confidentiality.
18.1 Non-Competition. Each member of the Granite Group hereby
agrees that for a period of three (3) years from and after the Closing, no
member of the Granite Group shall, directly or indirectly, including through
any Affiliate thereof, in any manner (including without limitation as a
coventurer, operator, partner,
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stockholder, advisor or lender) engage in the radio or television station
business ("Prohibited Business") within the Grand Rapids-Kalamazoo-Battle
Creek, Michigan or the Lansing, Michigan Designated Market Areas as measured
by Xxxxxxx Media Research Company, except on behalf of Buyer or through the
operation of WDWB-TV, Detroit, Michigan. If any provision of this Section 18
is held to be invalid by a court of competent jurisdiction, the covenants
contained herein shall be applicable and enforceable for such lesser period
of time, and for such lesser activity included within such limitations, as
such court may then or thereafter determine to be reasonable and proper under
the circumstances. In the event that any provision of this Section 18 is
deemed to be unenforceable, the remainder of this Section 18 shall not be
affected thereby and each provision hereof shall be valid and enforced to the
fullest extent permitted by law.
18.2 Confidentiality. Each member of the Granite Group and any
Affiliates thereof shall at all times prior to and for three (3) years after
the Closing Date maintain confidential and not use for any purpose other than
the operation of WWMT or WLAJ, any information relating to WWMT or WLAJ
(other than information in the public domain not as the result of a breach of
this Agreement), its business and operations except: (a) as necessary to the
performance of this Agreement; (b) as authorized in writing by Buyer; or (c)
to the extent that disclosure is required by law or the order of any
Governmental Authority under color of law; provided, that, prior to
disclosing any information pursuant to
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this clause (c), the disclosing Person shall have given prior written notice
thereof to Buyer and, to the extent practicable, provided Buyer with the
opportunity to contest such disclosure at Buyer's expense. Without the prior
written consent of Buyer, no member of the Granite Group nor any Affiliate
thereof shall directly or indirectly offer employment to any Business
Employee hired by Buyer at Closing within three (3) years after the Closing
Date, except for any Business Employee whose employment with Buyer or its
successors shall have been terminated.
18.3 Specific Performance. Each member of the Granite Group hereby
acknowledges that the damages Buyer would sustain in the event of any
violation of the provisions of this Section 18 are difficult or impossible to
ascertain. Accordingly, each member of the Granite Group hereby agrees that
Buyer shall be entitled, in addition to any other remedy or damages available
to it in the event of any such violation, to injunctive relief to restrain
such violation by any member of the Granite Group or any Person intended to
be subject to the restriction contained herein which may be acting for or
with any member of the Granite Group or such other Person.
19. Miscellaneous.
19.1 General.
19.1.1 Generally. Notwithstanding any other provision of
this Agreement, if a default by any party hereto can be cured or a condition
satisfied within fifteen (15) business days after the time initially fixed
for the Closing as set forth
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herein, then the Closing Date shall be extended for the period (not to exceed
fifteen (15) business days) required for such party to make such cure or
satisfaction; provided, that, such default does not, and would not reasonably
be expected to, have a material adverse effect on WWMT, WLAJ, the
Broadcasting Assets, Buyer(in the case of a default by any member of the
Granite Group) or any member of the Granite Group (in the case of a default
by Buyer). If such cure or satisfaction cannot be, or is not, completed
within fifteen (15) business days after such initial time, then the rights of
the parties shall be governed by the applicable provisions of this Agreement.
19.1.2 FCC Grace Period. Notwithstanding anything to the
contrary contained herein, if all the conditions to Closing set forth in
Section 7 other than obtaining the Final Order have been satisfied (or waived
by the beneficiary thereof), at Granite's or Buyer's option, all references
to June 30, 1998 shall be modified to the first anniversary of the filing of
the FCC Applications (if the party seeking extension reasonably believes that
the Final Order will be received by such first anniversary.
19.2 Costs, Expenses Etc. Except as expressly provided elsewhere
herein each of the parties hereto shall bear all costs and expenses incurred
by it in connection with this Agreement and in the preparation for and
consummation of the transactions provided for herein. The payment of all
sales, use, transfer or similar Taxes, documentation stamps, or other similar
charges
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imposed by any and all Governmental Authorities (excluding any income Taxes)
with respect to the transfer of title to the Granite Broadcasting Assets
hereunder and the other transactions anticipated hereby shall be borne
equally by Granite and Buyer; provided, that, transfer taxes relating to
transfers of real property included in the Granite Broadcasting Assets shall
be borne by Seller. All recording costs and fees incurred in connection with
clearing and removing any liens and Encumbrances not assumed by Buyer to
which the Granite Broadcasting Assets may be subject, so as to permit Seller
to convey good and marketable title to the Granite Broadcasting Assets free
and clear of all Encumbrances, shall be the responsibility of Granite.
19.3 Further Assurances. Each party shall, from time to time, upon
the request of another party, execute, acknowledge and deliver to the other
party such other documents or instruments, and take any and all actions as
are reasonably necessary for the implementation and consummation of the
transactions contemplated by this Agreement.
19.4 Notice of Proceedings. Each party hereto will promptly and in
any case within five (5) business days notify the other parties in writing
upon becoming aware of any labor organization drive or any order or decree or
any complaint praying for an order or decree restraining or enjoining the
consummation of this Agreement or the transactions contemplated hereunder, or
upon receiving any notice from any Governmental Authority of its intention to
institute an investigation into, or institute a suit
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or proceeding to restrain or enjoin the consummation of this Agreement or
such transactions, or to nullify or render ineffective this Agreement or such
transactions if consummated.
19.5 Notices. Any notice, request, demand or consent required or
permitted to be given under this Agreement shall be in writing (including
telexes, telecopies, facsimile transmissions and similar writings) and shall
be effective when transmitted and confirmation of receipt is obtained for
telexes, telecopies, facsimile transmissions and similar writings; when
delivered personally; one (1) day after sent by recognized overnight courier;
and five (5) days after sent by mail, first class, postage prepaid,
registered mail, return receipt requested; in each case to the following
address or telecopier number, as applicable:
(a) If to any member of the Granite Group to:
Granite Broadcasting Corporation
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with copies to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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(b) If to Buyer to:
Freedom Communications, Inc.
00000 Xxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with copies to:
Freedom Communications, Inc.
00000 Xxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or at such other address as either party shall specify by notice to the other.
19.6 Headings and Entire Agreement; Amendment. The section and
subsection headings do not constitute any part of this Agreement and are
inserted herein for convenience of reference only. This Agreement embodies
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all negotiations, representations, warranties,
commitments, offers, contracts and writings prior to the date hereof,
including, without limitation, that certain letter agreement between Granite
and Buyer dated January 12, 1998. It may not be amended, modified or changed
orally, but only in writing signed by the party against whom enforcement of
any amendment, modification, change, waiver, extension or discharge is sought.
19.7 Waiver. No waiver of a breach of, or default under, any
provision of this Agreement shall be deemed a waiver of
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such provision or of any subsequent breach or default of the same or similar
nature or of any other provision or condition of this Agreement.
19.8 Binding Effect and Assignment. This Agreement shall be
binding upon and shall inure to the benefit of the parties. Neither this
Agreement nor any obligation hereunder shall be assignable except with the
prior written consent of the other parties hereto which may be withheld for
any reason; provided, however, that Buyer may assign this Agreement, in whole
or in part, to any direct or indirect wholly owned subsidiary thereof,
provided Buyer agrees in writing with Granite and Seller, which writing shall
be reasonably satisfactory to Granite, to unconditionally guarantee all
obligations of such assignee under this Agreement. No party hereto assumes
any duty hereunder to any other person or entity, and this Agreement shall
operate exclusively for the benefit of the parties hereto and not for the
benefit of any other Person or entity.
19.9 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but which taken together shall
constitute one agreement.
19.10 Schedules and Attachments. The Schedules attached to
this Agreement are incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein, except that in the event of any
conflict between any of the provisions of such Schedules and the provisions
of this Agreement, the provisions in this Agreement shall control.
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19.11 Rights Cumulative. Except as set forth herein, all
rights, powers and remedies herein given to the parties hereto are cumulative
and not alternative, and are in addition to all statutes or rules of law.
19.12 Governing Law. This Agreement, and the rights and
obligations of the parties hereto, shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts
made and to be performed therein.
19.13 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance, is held invalid, such
invalidity shall not affect any other provision which can be given effect
without the invalid provision or application, and to this end the provisions
hereof shall be severable.
19.14 Third Party Rights. Nothing in this Agreement (including
the Schedules and other attachments hereto, or any ancillary agreement,
instrument or document contemplated hereby or relating hereto) shall be
deemed to create any right with respect to any Person not a party to, or any
property not subject to, this Agreement.
19.15 Time of Essence. Time is of the essence in the
performance of this Agreement.
19.16 Press Releases. Except as otherwise required by law,
Buyer and the members of the Granite Group shall: (a) prior to its issuance
of any press release relating to the transactions contemplated by this
Agreement, submit to the other
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parties, and obtain the approval thereof, any part or parts of the press
release which characterize the other parties, which approval shall not be
unreasonably withheld; and (b) use its best efforts to characterize the other
parties, in any other public statements made by the party making such
statement about the other parties, on substantially the same basis as in any
press release made by the party making such statement.
19.17 Specific Performance. Each member of the Granite Group
hereby agrees that Buyer shall be entitled, in addition to any other remedies
or damages available to Buyer in the event of any breach of this Agreement by
any member of the Granite Group, to specific performance of the obligations
of each member of the Granite Group under this Agreement.
19.18 Confidentiality. Buyer agrees with respect to all
technical and commercial and other information relating to Granite, Seller,
WLAJ, Inc., WWMT or WLAJ that is or has been furnished or disclosed to Buyer,
its officers, directors, agents, Affiliates or consultants on, after or
before the date hereof, including, but not limited to, information regarding
the organization, personnel, business activities, customers, policies,
assets, finances, costs, sales, revenues, rights, obligations, liabilities
and strategies of Granite, Seller, WLAJ, Inc., WWMT or WLAJ ("Information"),
that, unless and until the transactions contemplated by this Agreement shall
have been consummated (and for five (5) years from the date of such
consummation for Information relating to Granite): (a) such
115
Information is confidential and/or proprietary to Granite, Seller, WLAJ,
Inc., WWMT and WLAJ and entitled to and shall receive treatment as such by
Buyer; (b) Buyer will, and will require all of its employees,
representatives, agents, Affiliates and advisors who have access to such
information, to hold in confidence and not disclose to others nor use (except
in respect of the transactions contemplated by this Agreement) any such
Information; provided, however, that Buyer shall not have any restrictive
obligation with respect to any Information which: (i) is contained in a
printed publication available to the general public; (ii) is or becomes
publicly known through no wrongful act or omission of, or violation of the
terms hereof by, Buyer or any third party; (iii) becomes known to Buyer from
a source which did not wrongfully acquire such Information and has no
confidentiality obligation with respect to such Information at the time of
receipt of such information; or (iv) is required by law or the order of any
governmental authority under color of law; provided, that, prior to
disclosing any Information pursuant to this clause (iv), Buyer shall have
given prior written notice thereof to the Granite Group, to the extent
practicable, provided the Granite Group with the opportunity to contest such
disclosure at their expense; and (c) all such Information, unless otherwise
specified in writing, shall remain the property of the applicable Granite
Group member, in the event this Agreement is terminated and shall be returned
to the applicable Granite Group member, together with any and all copies made
thereof, upon request for
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such return by the applicable Granite Group member (except for documents
submitted to a Governmental Authority with the consent of a Granite Group
member or upon subpoena and which cannot be retrieved with reasonable
effort). Without the prior written consent of Granite and Seller, Buyer
shall not directly or indirectly offer employment to any employee of Granite
or Seller (other than any Business Employee) within three (3) years after the
Closing Date, except for any such employees whose employment with Granite or
Seller or their successors shall have been terminated.
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IN WITNESS WHEREOF, each party has caused this Agreement to be duly
executed and delivered in its name and on its behalf, all as of the date and
year first above written.
GRANITE BROADCASTING CORPORATION
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: President
WWMT-TV, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: President
WWMT LICENSE, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: President
FREEDOM COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President and
President, Broadcast
Division
WLAJ, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: President
