Exhibit 10.47
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
MISSION BROADCASTING, INC.
AND
LIN TELEVISION CORPORATION,
TVL BROADCASTING OF ABILENE, INC.
AND
ABILENE BROADCASTING, LLC,
DATED AS OF
December 13, 2002
TABLE OF CONTENTS
Page
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SECTION 1 - DEFINITIONS............................................ 1
1.1 CERTAIN DEFINED TERMS..................................... 1
1.2 RULES OF CONSTRUCTION..................................... 1
1.3 SECTIONS.................................................. 2
SECTION 2 - PURCHASE AND SALE...................................... 2
2.1 PURCHASE AND SALE OF THE ASSETS........................... 2
2.2 EXCLUDED ASSETS........................................... 3
2.3 PURCHASE PRICE............................................ 3
2.4 PRORATIONS AND ADJUSTMENTS AT CLOSING..................... 4
2.5 ADJUSTMENT................................................ 5
2.6 ASSUMPTION OF LIABILITIES AND OBLIGATIONS................. 6
2.7 ALLOCATION OF PURCHASE PRICE.............................. 7
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF LIN.................. 8
3.1 ORGANIZATION, QUALIFICATION AND AUTHORITY.................. 8
3.2 AUTHORIZATION AND BINDING OBLIGATION....................... 8
3.3 ABSENCE OF CONFLICTING AGREEMENTS; CONSENTS................ 9
3.4 FCC LICENSES............................................... 9
3.5 GOOD TITLE CONVEYED....................................... 10
3.6 CONDUCT OF BUSINESS IN THE ORDINARY COURSE................ 10
3.7 ASSETS OF THE BUSINESS.................................... 11
3.8 REAL PROPERTY............................................. 11
3.9 TANGIBLE PERSONAL PROPERTY................................ 12
3.10 NON-INFRINGEMENT.......................................... 12
3.11 CONTRACTS; NO DEFAULT..................................... 12
3.12 LITIGATION................................................ 12
3.13 COMPLIANCE WITH LAWS...................................... 13
3.14 NO BROKER................................................. 13
3.15 TRANSACTIONS WITH AFFILIATES.............................. 13
3.16 INSURANCE................................................. 13
3.17 PERSONNEL................................................. 13
3.18 BANKRUPTCY................................................ 13
3.19 ENVIRONMENTAL............................................. 14
3.20 TAXES..................................................... 14
3.21 FINANCIAL STATEMENTS...................................... 14
3.22 NO OTHER REPRESENTATIONS AND WARRANTIES................... 14
SECTION 4 - REPRESENTATIONS AND WARRANTIES OF BUYER................ 15
4.1 ORGANIZATION, STANDING AND AUTHORITY...................... 15
4.2 AUTHORIZATION AND BINDING OBLIGATION...................... 15
4.3 ABSENCE OF CONFLICTING AGREEMENTS AND REQUIRED CONSENTS... 15
4.4 BUYER QUALIFICATIONS...................................... 16
4.5 LITIGATION................................................ 16
4.6 BANKRUPTCY................................................ 16
4.7 NO BROKER................................................. 16
4.8 DISCLAIMER................................................ 16
SECTION 5 - OPERATION OF THE STATIONS PRIOR TO CLOSING............. 16
5.1 GENERALLY................................................. 16
5.2 ACCESS TO INFORMATION..................................... 19
5.3 INSURANCE................................................. 19
5.4 FINANCIAL INFORMATION..................................... 19
5.5 UPDATED SCHEDULES......................................... 19
5.6 NOTICE OF CERTAIN MATTERS................................. 20
5.7 NOTICE OF PROCEEDINGS..................................... 20
5.8 ACCESS TO BOOKS AND RECORDS............................... 20
5.9 FURTHER ASSURANCES........................................ 20
5.10 EMPLOYEES................................................. 20
5.11 WELFARE PLANS............................................. 20
5.12 PAST SERVICE CREDIT....................................... 21
5.13 WARN ACT.................................................. 21
5.14 RECEIPTS AND DISBURSEMENTS................................ 21
SECTION 6 - SPECIAL COVENANTS AND AGREEMENTS....................... 21
6.1 FCC CONSENT............................................... 21
6.2 THIRD PARTY CONSENTS...................................... 22
6.3 CONFIDENTIALITY........................................... 22
6.4 COOPERATION............................................... 23
6.5 CONTROL OF THE STATIONS................................... 23
6.6 LOCAL MARKETING AGREEMENT................................. 23
6.7 RELEASE OF LIENS.......................................... 23
6.8 REAL ESTATE MATTERS....................................... 23
SECTION 7 - CONDITIONS TO OBLIGATIONS OF BUYER AND LIN............. 24
7.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY................... 24
7.2 CONDITIONS TO OBLIGATIONS OF BUYER........................ 24
7.3 CONDITIONS TO OBLIGATIONS OF LIN.......................... 25
SECTION 8 - CLOSING AND CLOSING DELIVERIES......................... 26
8.1 CLOSING................................................... 26
8.2 CLOSING PLACE............................................. 26
8.3 DELIVERIES BY LIN......................................... 26
8.4 DELIVERIES BY BUYER....................................... 27
SECTION 9 - TERMINATION............................................ 28
9.1 TERMINATION OF AGREEMENT.................................. 28
9.2 PROCEDURE AND EFFECT OF TERMINATION....................... 29
9.3 ATTORNEYS' FEES........................................... 30
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SECTION 10 - SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES...................... 30
10.1 SURVIVAL.................................................. 30
10.2 INDEMNIFICATION BY LIN.................................... 31
10.3 INDEMNIFICATION BY BUYER.................................. 32
10.4 PROCEDURE FOR INDEMNIFICATION............................. 33
10.5 REMEDIES UNDER LOCAL MARKETING AGREEMENT.................. 34
SECTION 11 - MISCELLANEOUS.......................................... 34
11.1 FEES AND EXPENSES......................................... 34
11.2 NOTICES................................................... 34
11.3 BENEFIT AND BINDING EFFECT................................ 35
11.4 FURTHER ASSURANCES........................................ 35
11.5 GOVERNING LAW............................................. 36
11.6 WAIVER OF COMPLIANCE; CONSENTS............................ 36
11.7 SPECIFIC PERFORMANCE...................................... 36
11.8 SEVERABILITY.............................................. 36
11.9 SCHEDULES, EXHIBITS AND OTHER AGREEMENTS.................. 36
11.10 ENTIRE AGREEMENT.......................................... 36
11.11 COUNTERPARTS.............................................. 37
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement"), made as of this 13th
day of December, 2002, is by and between TVL Broadcasting of Abilene, Inc., a
Delaware corporation (the "Operating Seller"), Abilene Broadcasting, LLC, a
Delaware limited liability company (the "License Seller" and, together with
Operating Seller, "Sellers" and each a "Seller"), and, LIN Television
Corporation, a Delaware corporation ("LIN Television" and, together with
Sellers, "LIN"), and Mission Broadcasting, Inc., a Delaware corporation
("Buyer").
R E C I T A L S:
WHEREAS, each of Operating Seller and License Seller is a wholly-owned
subsidiary of TVL Broadcasting, Inc., which in turn is a wholly-owned subsidiary
of LIN Television;
WHEREAS, the Operating Seller is the owner of all of the assets (other
than the FCC Licenses) used in the operation of the television stations KRBC-TV,
Abilene, Texas, and KACB-TV, San Angelo, Texas (together the "Stations" and each
individually a "Station");
WHEREAS, LIN desires to sell, and Buyer desires to purchase, all of the
assets in respect of the Stations, including the FCC Licenses, as more fully
described, and on the terms and subject to the conditions, set forth herein; and
WHEREAS, simultaneous with the execution of this Agreement, LIN and
Buyer are entering into a local marketing agreement (the "Local Marketing
Agreement"), pursuant to which Buyer will provide programming to the Stations
and sell advertising time related to such programming, subject to the terms of
the Local Marketing Agreement;
NOW, THEREFORE, in consideration of the above recitals and of the mutual
agreements and covenants contained in this Agreement, the parties to this
Agreement, intending to be bound legally, hereby agree as follows:
SECTION 1 - DEFINITIONS
1.1 Certain Defined Terms. The terms set forth on Exhibit A hereto,
as used in this Agreement, have the meanings set forth in Exhibit A.
1.2 Rules of Construction. Whenever the context requires, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." All references to "party" and "parties"
shall be deemed references to parties to this Agreement unless the context shall
otherwise require. The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Agreement. Except as
specifically otherwise provided in this Agreement, a reference to a Section, the
Schedules or any Exhibit is a reference to a Section of this Agreement or the
Schedules or Exhibits hereto, and the terms "hereof," "herein," and other like
terms refer to this Agreement as a whole, including the Schedules and Exhibits
to this Agreement. The terms "or" is used in its inclusive sense ("and/or"). All
references to "Dollars" and "$" refer to the currency of the United States.
1.3 Sections. The division of this Agreement into sections and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement.
SECTION 2 - PURCHASE AND SALE
2.1 Purchase and Sale of the Assets.
(a) Subject to the terms and conditions set forth in this
Agreement, Operating Seller hereby agrees to transfer, convey, assign and
deliver to Buyer on the Closing Date, and Buyer agrees to acquire, all of
Operating Seller's right, title and interest in the tangible and intangible
assets used or useful in the operation of the Stations, together with any
additions thereto between the date of this Agreement and the Closing Date, but
excluding the Excluded Assets, the FCC Licenses and any assets disposed of
between the date of this Agreement and the Closing Date in accordance with the
provisions of this Agreement or the Local Marketing Agreement (such assets being
conveyed being collectively referred to herein as the "Stations' Assets"), free
and clear of any Lien, except for Permitted Liens, including the following:
(i) the Tangible Personal Property;
(ii) the Real Property;
(iii) the Assumed Contracts;
(iv) the Intangibles;
(v) all amounts payable to the Stations, if any,
from the United States Copyright Office or such arbitral panels as may be
appointed by the United States Copyright Office that relate to the period prior
to the Effective Time and that have not been paid to Operating Seller as of the
Effective Time;
(vi) all proprietary information, technical
information and data, maps, computer discs and tapes, FCC logs, plans, diagrams,
blueprints and schematics relating to the Stations' Business;
(vii) all books and records relating solely to the
Stations' Business, including executed copies of the Assumed Contracts and
account books of original entry and all records required by the FCC to be kept
by the Stations;
(viii) all deposits and prepaid expenses of Operating
Seller with respect to items that are prorated in Section 2.4 below (except as
such relate to Excluded Assets);
(ix) equipment warranties to the extent transferable
by Operating Seller;
(x) Accounts Receivable; and
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(xi) any and all of Operating Seller's right, title
and interest in and to the assets of Operating Seller used by Operating Seller
in connection with the development and production of television programming.
(b) Subject to the terms and conditions set forth in this
Agreement, License Seller hereby agrees to transfer, convey, assign and deliver
to Buyer on the Closing Date, and Buyer agrees to acquire, all of License
Seller's right, title and interest in the FCC Licenses.
2.2 Excluded Assets. The Assets shall not include the following (the
"Excluded Assets"):
(a) cash, cash equivalents and cash items of any kind
whatsoever, certificates of deposit, money market instruments, bank balances and
rights in and to bank accounts, Treasury bills and marketable securities and
other securities of LIN;
(b) contracts of insurance and insurance plans and the
assets thereof, promissory notes, amounts due from employees, bonds, letters of
credit or other similar items and any cash surrender value in regard thereto;
(c) tangible personal property disposed of or consumed in
compliance with this Agreement or the Local Marketing Agreement between the date
of this Agreement and the Closing Date;
(d) any legal claims, suits, judgments or proceedings of LIN
with respect to transactions and events occurring prior to the Closing Date and
all claims for refunds of monies paid to any governmental agency and all claims
for copyright royalties for broadcast prior to the Closing Date;
(e) Contracts that are not Assumed Contracts, including
those listed on Schedule 2.2(e) (the "Excluded Contracts");
(f) any of LIN's corporate records and other books and
records that pertain to internal corporate matters of LIN and any of LIN's
account books of original entry with respect to the Stations and all original
accounts, checks, payment records, Tax records and other similar books, records
and information of LIN relating to LIN's operation of the Stations' Business and
the Assets prior to Closing; and
(g) any and all assets and property located at the offices
of Operating Seller outside of the State of Texas or at the offices of LIN
Television or any of LIN Television's Affiliates (other than Operating Seller
and License Seller) that are used or useful in connection with various general
and administrative, accounting, legal, human resources, sales, marketing,
engineering and other services provided to Operating Seller or License Seller.
2.3 Purchase Price. In consideration for the sale of the Assets
pursuant to the terms and subject to the conditions hereof, Buyer shall pay to
LIN by wire transfer of immediately available funds (in accordance with wire
transfer instructions provided by LIN) the Purchase Price, which will be paid as
follows:
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(a) On or before the Commencement Date, Buyer shall pay to
LIN an amount equal to One Million Five Hundred Thousand Dollars ($1,500,000.00)
(the "Initial Payment").
(b) At the Closing, Buyer shall pay to LIN an amount equal
to the difference between (i) Ten Million Dollars ($10,000,000.00) (the
"Purchase Price"), subject to appropriate adjustment as provided in Section 2.4
hereof, and (ii) the amount of the Initial Payment.
2.4 Prorations and Adjustments at Closing.
(a) All prepaid or deferred revenue, prepaid expenses,
accrued income and accrued expenses of the Stations, except as otherwise
expressly provided herein or in the Local Marketing Agreement, shall be adjusted
and allocated between Sellers and Buyer to reflect the principle that all
revenue, income and expenses (including accrued liabilities for vacation pay,
sick leave, compensatory pay and similar amounts due to any Employees, and
amounts that may become payable in respect of unlicensed software, regardless of
whether Sellers normally accrue such amounts) arising from the operation of the
Stations or relating to the Assets before the Commencement Time shall be for the
account of Sellers, and all revenue, income and expenses arising from the
operation of the Stations or relating to the Assets from and after the
Commencement Time shall be for the account of Buyer. Any and all rebates which,
under any agreement in effect as of the Commencement Time, may be payable after
such time to any advertiser or other user of the Stations' facilities, based in
part on business, advertising or services provided prior to the Commencement
Time, shall be borne by Sellers and Buyer ratably in proportion to revenues
received, volume of business done or services rendered by each party during the
applicable period. Any and all agency commissions which are subject to
adjustment after the Commencement Time based on revenue, volume of business done
or services rendered by each party in part before the Commencement Time and in
part after the Commencement Time shall be shared by Sellers, on the one hand,
and Buyer, on the other hand, ratably in proportion to the revenue, volume of
business or services rendered, as the case may be, by each during the applicable
period.
(b) Notwithstanding any provision of Section 2.4(a) to the
contrary, with respect to all Contracts relating to Program Rights (the "Program
Contracts"), as between Sellers and Buyer:
(i) Sellers shall make all payments of license and
usage fees pursuant to any Program Contract (the "Program Payments") to the
extent such Program Payments become due and payable under the terms of the
Program Contracts prior to the Commencement Time; and
(ii) Buyer shall make all Program Payments to the
extent such Program Payments become due and payable under the terms of the
Program Contracts on or after the Commencement Time.
(c) To the extent not inconsistent with the express
provisions of this Agreement or the Local Marketing Agreement, the allocations
made pursuant to this Section 2.4 shall be made in accordance with generally
acceptable accounting principles, consistently applied.
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(d) Notwithstanding anything else in this Section 2.4 to the
contrary, any prorations and adjustments pursuant to Section 2.4(a) shall be
subject to the following:
(i) There shall be no adjustment for, and LIN shall
remain solely liable with respect to, any Excluded Contracts and any other
obligation or liability not being assumed by Buyer in accordance with Section
2.7.
(ii) The parties acknowledge and agree that no
adjustment shall be made with respect to any barter or trade agreements.
2.5 Adjustment.
(a) Not less than five (5) Business Days prior to the
Closing Date, LIN shall deliver to Buyer its good faith estimate of the
prorations and adjustments to be made with respect to the Purchase Price
calculated in accordance with Section 2.4 hereof, including all estimated
accrued liabilities (the "Preliminary Adjustment Statement").
(b) Subject to the acceptance of the Preliminary Adjustment
Statement by Buyer, which acceptance shall not be unreasonably withheld,
conditioned or delayed, the Purchase Price payable at Closing will be adjusted
by the amount of the prorations and adjustments estimated on the Preliminary
Adjustment Schedule (the "Preliminary Adjustment Amount"). LIN shall, upon
delivery of such Preliminary Adjustment Statement, permit Buyer and its
representatives access to the accounting records and accountant work papers (if
any) used in connection with the preparation of the Preliminary Adjustment
Statement. The Preliminary Adjustment Statement shall be prepared in accordance
with generally accepted accounting principles, consistently applied.
(c) Within ninety (90) days after the Closing Date, Buyer
shall prepare and deliver to LIN an itemized list of the final prorations and
adjustments calculated in accordance with Section 2.4 (the "Closing Adjustment
Statement"). The Closing Adjustment Statement shall include a description of the
net amount payable by Buyer or LIN as an adjustment pursuant to Section 2.4
hereof (the "Closing Adjustment Amount"). The Closing Adjustment Statement shall
be prepared in accordance with generally accepted accounting principles,
consistently applied. Buyer shall, following such delivery and at the request of
LIN, permit LIN and its representatives access to the accounting records and
accountant work papers (if any) used in connection with the preparation of the
Closing Adjustment Statement. In the event Buyer within such ninety (90) day
period fails to deliver the Closing Adjustment Statement, the Preliminary
Adjustment Amount shall be deemed to be the Closing Adjustment Amount, which
amount shall be deemed to have been finally determined for purposes of Section
2.5(f) hereof.
(d) Within thirty (30) days after the date the Closing
Adjustment Statement is delivered to XXX, XXX shall complete its examination of
the Closing Adjustment Statement and shall deliver to Buyer either (i) the
written acknowledgement of its acceptance of the Closing Adjustment Statement
and the Closing Adjustment Amount or (ii) a written report setting forth any
proposed adjustments to the Closing Adjustment Statements or the Closing
Adjustment Amount (the "Adjustment Report"). In the event LIN within such thirty
(30) day period fails to deliver the Adjustment Report, the Closing Adjustment
Statements shall be deemed to be correct
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and the Closing Adjustment Amount to have been finally determined for purposes
of Section 2.5(f) hereof.
(e) In the event LIN and Buyer fail to agree on any or all
of the proposed adjustments to the Closing Adjustment Amount contained in the
Adjustment Report within thirty (30) days after Buyer receives the Adjustment
Report and the net aggregate amount in dispute exceeds Twenty Five Thousand
Dollars ($25,000.00), then either party may notify an independent certified
public accounting firm as may be mutually agreed upon by the parties of the need
for its services as an independent auditor and not for LIN or Buyer (the
"Independent Auditor"). The Independent Auditor shall be instructed to make the
final determination with respect to the correctness of the Closing Adjustment
Statement in accordance with the terms and provisions of this Agreement within
thirty (30) days after the submission thereof. The decision by the Independent
Auditor as to the adjustments that should be made to the Closing Adjustment
Statement (the "Final Adjustments") shall be final and binding on LIN and Buyer.
Buyer and LIN shall share equally the costs and expenses of the Independent
Auditor but each party shall bear its own legal and other expenses, if any. If
the net aggregate amount in dispute is equal to or less than Twenty Five
Thousand Dollars ($25,000.00), the dispute shall not be submitted to the
Independent Auditor and no adjustment will be made to the Adjustment Report or
the Closing Adjustment Amount.
(f) The term "Final Adjustment Statement" shall mean the
Closing Adjustment Statement delivered by Buyer pursuant to Section 2.5(c), as
adjusted, if at all, pursuant to this Section 2.5, and the date on which the
Final Adjustment Statement is finally determined pursuant to this Section 2.5(f)
shall hereinafter be referred to as the "Adjustment Settlement Date."
(g) LIN and Buyer will make appropriate payment necessary to
true up the adjustment made at Closing with respect to the Preliminary
Adjustment Amount based on the Final Adjustment Amount. Any payments required
pursuant to this Section 2.5(g) shall be made by wire transfer of immediately
available funds for credit to the recipient in accordance with wire transfer
instructions provided by such recipient in writing (or by such other method of
funds transfer as may be agreed upon by Buyer and LIN) within five (5) days of
the Adjustment Settlement Date.
(h) If either Buyer or LIN fails to pay when due any amount
under this Section 2.5, interest on such amount will accrue from the date
payment was due and be payable until paid at the per annum rate of the "prime
rate" as published in the Money Rates column of the Eastern Edition of The Wall
Street Journal (or the average of such rates if more than one rate is indicated)
plus two percent (2%) and shall be payable upon demand.
2.6 Assumption of Liabilities and Obligations.
(a) As of the Effective Time, Buyer shall assume and
undertake to pay, discharge and perform:
(i) any obligation or liability of LIN under the
Assumed Contracts to the extent that the obligations and liabilities relate to
the period after the Effective Time;
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(ii) any liability or obligation to any Transferred
Employee arising on or after the Effective Time;
(iii) any liability or obligation arising out of any
litigation, proceeding or claim by any Person or entity relating to any of the
Assets or the Stations' Business in connection with any events or circumstances
that occur or arise on or after the Effective Time;
(iv) any severance or other liability arising out of
the termination of any employee's employment with or by Buyer on or after the
Effective Time;
(v) any duty, obligation or liability relating to
any pension, 401(k) or other similar plan, agreement or arrangement provided by
Buyer to any Transferred Employee on or after the Effective Time;
(vi) subject to the provisions of the Local Marketing
Agreement, the Accounts Payable; and
(vii) one half of all state and local sales or use
Taxes (or their equivalent) and transfer taxes or recording fees payable as a
consequence of the sale of the Assets hereunder (all of the foregoing, together
with other liabilities or obligations expressly assumed by Buyer hereunder, are
referred to herein collectively as the "Assumed Liabilities").
(b) Unless otherwise required pursuant to the Local
Marketing Agreement, Assumed Liabilities shall not include any of the following:
(i) LIN's obligations under this Agreement or the Local Marketing Agreement;
(ii) any income taxes incurred by LIN prior to the Effective Time; (iii) any
liabilities of LIN resulting from, or arising out of, relating to, in the nature
of or caused by any breach of contract, breach of warranty, tort, infringement,
claim or lawsuit related to any Assumed Contract for the period prior to the
Effective Time; (iv) any obligations or liabilities under any Excluded Contract;
(v) any liability or obligation arising out of any litigation, proceeding or
claim by any Person relating to the Stations' Business or any of the Assets in
connection with any events or circumstances that occur or exist prior to the
Effective Time; (vi) any indebtedness for borrowed money of LIN or credit
agreements, note purchase agreements, indentures or other financing arrangements
(other than any Assumed Contracts) of LIN; (vii) any obligations or liabilities
arising out of the termination of the employment of any Employee by LIN prior to
the Effective Time, the liabilities of LIN for accrued vacation time of any
Employee (to the extent such vacation time has accrued prior to the Effective
Time) and any other duty, obligation or liability relating to any "employee
benefit plans" (as defined in Section 3(3) of ERISA) provided by LIN to any
employee of LIN prior to the Effective Time. Buyer shall perform all obligations
arising out of the Assets (including the Assumed Contracts and the FCC Licenses)
on or after the Closing Date; and (viii) one half of all state and local sales
or use Taxes (or their equivalent) and transfer taxes or recording fees payable
as a consequence of the sale of the Assets hereunder. LIN shall retain all
liabilities of LIN not assumed by Buyer (the "Retained Liabilities").
2.7 Allocation of Purchase Price. LIN shall appoint Bond & Xxxxxx to
prepare, on behalf of LIN and Buyer, an allocation of the Purchase Price among
the Assets (the "Allocation"), which Allocation shall be delivered in writing,
together with reasonably detailed
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supporting documentation, no later than ten (10) days prior to the Closing Date.
LIN and Buyer hereby agree that the Allocation shall be final and conclusive
with respect to the allocation of the Purchase Price among the assets, and LIN
and Buyer hereby further agree (a) to use the Allocation for all accounting,
financial reporting and Tax purposes; (b) that any Tax Returns or other Tax
information they may file or cause to be filed with any governmental agency or
fiscal intermediary shall be prepared and filed in a manner consistent with such
Allocation; and (c), in furtherance of the foregoing and to the extent required,
they will each properly and timely file Form 8594 in accordance with Section
1060 of the Tax Code. All costs of preparing the Allocation shall be borne one
half by Buyer and one half by LIN.
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF XXX
XXX hereby represents and warrants to Buyer as follows, subject in each
case to such exceptions as are set forth on the disclosure schedule of LIN
attached hereto numbered and captioned to correspond to the specific
representation or warranty to which such exception relates or as otherwise
cross-referenced in such disclosure schedules:
3.1 Organization, Qualification and Authority.
(a) LIN Television is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware. LIN
Television has the requisite corporate power and authority to own and operate
the property and assets owned and operated by it.
(b) Operating Seller is a corporation, duly organized,
validly existing and in good standing under the laws of the State of Delaware
and duly qualified to do business as a foreign corporation and is in good
standing in the State of Texas. Operating Seller has the requisite corporate
power and authority to own and operate the property and assets owned and
operated by it.
(c) License Seller is a limited liability company, duly
organized, validly existing and in good standing under the laws of the State of
Delaware. License Seller has the requisite corporate power and authority to own
and operate the property and assets owned and operated by it.
3.2 Authorization and Binding Obligation. The execution, delivery
and performance of this Agreement and the Local Marketing Agreement, and the
consummation of the transactions contemplated hereby and thereby, by each of LIN
Television, Operating Seller and License Seller have been duly and validly
authorized by all necessary corporate action on the part of LIN Television,
Operating Seller and License Seller. This Agreement and the Local Marketing
Agreement and all of the documents and instruments contemplated hereby or
thereby have been or will be duly executed and delivered by each of LIN
Television, Operating Seller and License Seller and constitutes the legal, valid
and binding obligation of each of LIN Television, Operating Seller and License
Seller, enforceable against each of LIN Television, Operating Seller and License
Seller in accordance with its terms, except as the enforceability of this
Agreement may be affected by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by judicial discretion in the enforcement of
equitable remedies.
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3.3 Absence of Conflicting Agreements; Consents. Except as set forth
in Schedule 3.3, subject to the receipt of the FCC Consent, neither the
execution, delivery and performance by LIN Television, Operating Seller and
License Seller of this Agreement or the Local Marketing Agreement nor the
consummation by LIN Television, Operating Seller and License Seller of the
transactions contemplated hereby or thereby does or will, with or without the
giving of notice, the lapse of time, or both: (a) require the consent, waiver,
approval, permit, license, clearance or authorization of, or any declaration or
filing with, any Governmental Authority or any other third party; (b) conflict
with, result in a breach of, or constitute a default under, the organizational
documents of LIN Television, License Seller or Operating Seller, or any
Applicable Law applicable to LIN Television, License Seller or Operating Seller,
or any material Contract to which LIN Television, License Seller or Operating
Seller is bound and which relates to the ownership of the Assets or the
operation of the Stations; (c) not result in the creation of any Lien on any of
the Assets; (d) terminate, amend or modify, or give any Person the right to
terminate, amend, modify, abandon or refuse to perform, any material Contract to
which LIN Television, Operating Seller or License Seller is a party and which
relates to the ownership of the Assets or the operation of the Stations; or (e)
accelerate or modify, or give any Person the right to accelerate or modify, the
time within which or the terms under which any duties or obligations, or any
rights or benefits are to be conferred, under any material Contract to which LIN
Television, Operating Seller or License Seller is a party and which relates to
the ownership of the Assets or the operation of the Stations. None of LIN
Television, Operating Seller or License Seller is a party to, or is bound by,
any agreement or commitment that prohibits the execution and delivery by LIN
Television, Operating Seller or License Seller of this Agreement or the
consummation of the transactions by LIN Television, Operating Seller or License
Seller contemplated hereby.
3.4 FCC Licenses.
(a) Schedule 3.4(a) identifies the FCC Licenses used in the
operation of the Stations, and includes a complete list as of the date of this
Agreement of all main station, translator, microwave, low power television,
broadcast auxiliary and satellite earth station licenses (transmitting and
receive-only) and the date on which each expires. Each FCC License is in full
force and effect. License Seller is the authorized legal holder of the FCC
Licenses. The FCC Licenses listed on Schedule 3.4(a) constitute all of the
licenses and authorizations required under the Communications Act or the current
rules, regulations, and policies of the FCC for, or used in, the business and
operation of the Stations as currently operated. As of the date of this
Agreement, except as set forth on Schedule 3.4(a), to LIN's Best Knowledge, the
conduct of the Stations' Business and the operation of the Stations is in
accordance with the FCC Licenses and all FCC rules, regulations and policies in
all material respects. The digital television construction deadline for each of
the Stations is November 1, 2002 and a request for extension of time to
construct has been timely filed and is currently pending.
(b) Schedule 3.4(b) sets forth a true and complete list as
of the date of this Agreement of any and all material pending applications filed
with the FCC by License Seller (other than the Assignment Application) with
respect to the Stations, true and complete copies of which have been delivered
by License Seller to Buyer.
9
(c) Except as set forth on Schedule 3.12, and except for
investigations or other proceedings affecting the television broadcasting
industry generally, as of the date of this Agreement, LIN has no Knowledge of
any pending or threatened investigation, by or before the FCC, or any order to
show cause, notice of violation, notice of apparent liability, notice of
forfeiture or complaint by, before or with the FCC with respect to the Stations
that would be reasonably expected to (i) impair or hinder the ability of LIN to
perform its obligations under this Agreement or (ii) affect the business or
operations of the Stations, in any material, adverse respect. To the Best
Knowledge of LIN, as of the date of this Agreement, there are no facts,
conditions or events relating to the License Seller that would disqualify the
License Seller under the Communications Act or the existing rules, regulations
and policies of the FCC as a licensee of the FCC Licenses, that would disqualify
License Seller as the assignor of the FCC Licenses as provided in this Agreement
or that would prevent the License Seller from consummating the transactions
contemplated hereby within the times contemplated herein.
(d) To LIN's Best Knowledge, as of the date of this
Agreement, all material returns, reports and statements that the License Seller
is required to file with the FCC or Federal Aviation Administration have been
filed.
3.5 Good Title Conveyed. Except as set forth on Schedule 3.5, LIN
has good, valid and marketable title to all of the owned Assets and a valid
leasehold interest in all of the leased Assets, free and clear of all Liens
other than Permitted Liens, and complete and unrestricted power and the
unqualified right to sell, transfer, assign, convey and deliver such title and
leasehold interests to the Buyer, and upon consummation of the transactions
contemplated by this Agreement Buyer will possess good, valid and marketable
title to the owned Assets and a valid leasehold interest in the leased Assets,
free and clear of all Liens other than Permitted Liens.
3.6 Conduct of Business in the Ordinary Course. As of the date
hereof, except as set forth in Schedule 3.6 hereto, the business of the Stations
since the TVL Acquisition Date has been conducted in the ordinary course of
business and LIN has not:
(a) amended or terminated any contract or agreement which
relates to the operation of the Stations, except in the ordinary course of
business;
(b) increased the compensation paid or payable to any of the
Employees, except in the ordinary course of business;
(c) received any notice from any of the sponsors of either
Station as to such sponsor's intention not to conduct further business with such
Station where the result of such failure to conduct business could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect;
(d) suffered any period of four (4) consecutive days or more
during which either Station was off the air for any reason;
(e) suffered any period of fifteen (15) consecutive days or
more during with either Station operated at substantially reduced power;
10
(f) accelerated the collection of Accounts Receivable;
(g) made any sale, assignment, lease or other transfer of
any of the Assets other than obsolete assets no longer used in the operation of
the Stations or other assets sold or disposed of in the normal and usual course
of business with suitable replacements being obtained therefore;
(h) suffered any extraordinary losses (whether or not
covered by insurance) with respect to either Station, waived any extraordinary
rights of value with respect to either Station or canceled any Debts owed to or
claims held by LIN with respect to the Stations, except in the ordinary course
of business;
(i) suffered any material write-down of the value of any of
the assets of either Operating Seller or License Seller or any material
write-off as uncollectible of any of the accounts receivable of either License
Seller or Operating Seller, except in the ordinary course of business;
(j) suffered any material change in the financial condition
of the License Seller or Operating Seller; or
(k) incurred any liabilities or obligations other than
liabilities and obligations incurred in the ordinary course of business and
consistent with past practices.
3.7 Assets of the Business. The Stations' Assets, together with the
FCC Licenses and the Excluded Assets, comprise all of the assets necessary to
conduct the Stations' Business and to operate the Stations as conducted and
operated as of the date hereof.
3.8 Real Property.
(a) Except as described on Schedule 3.8, Operating Seller
has good and marketable fee simple or leasehold interests, as applicable, in all
Real Property, in each case free and clear of all Liens other than Permitted
Liens.
(b) No Lien on the Real Property materially interferes with
the operation of the Stations as currently operated. Sellers have not received
notice of any pending condemnation or similar proceeding affecting the Real
Property or any portion thereof, and to the Best Knowledge of LIN, no such
action is presently contemplated or threatened. Sellers have not received any
written notice from any insurance company of any defects or inadequacies in the
Real Property, or any part thereof, which would materially adversely affect the
insurability of the Real Property or the premiums for the insurance thereof.
Sellers have not received any notice from any insurance company which has issued
or refused to issue a policy with respect to any portion of the Real Property or
by any board of fire underwriters (or other body exercising similar functions)
requiring the performance of any repairs, alterations or other work with which
compliance has not been made. There is no pending or, to the Best Knowledge of
LIN, threatened governmental proceeding which would impair or curtail the access
to and from completed, dedicated and accepted public roads which exists as of
the Commencement Date.
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(c) Schedule 3.11 includes all leases and subleases pursuant
to which any of Operating Seller's interest in any of the Real Property is
leased or subleased to any Person other than Sellers. Except pursuant to such
leases and subleases, to LIN's Best Knowledge there are no parties in possession
of any portion of the Real Property other than Sellers, whether as lessees,
tenants at will, trespassers or otherwise.
3.9 Tangible Personal Property. Schedule 3.9 identifies all material
personal property owned, leased or licensed by the Operating Seller as of the
date hereof, identifying separately those items of personal property which are
so owned, leased or licensed (other than inventory or other assets sold,
consumed, expended or otherwise disposed of in the ordinary course of business),
in each case free and clear of all Liens, other than Permitted Liens. As of the
date of this Agreement, neither the Operating Seller nor, to LIN's Best
Knowledge, any other party is in default of any material provision of any lease
of any such property.
3.10 Non-Infringement. Schedule 3.10 contains a list of all material
copyrights and trademarks held by Sellers. To LIN's Best Knowledge, neither
Operating Seller nor License Seller is infringing upon, unlawfully using or
otherwise acting adversely to any trademarks, trade names, service marks,
service names, copyrights, patents, patent applications, know-how, methods or
processes owned by any other Person. Neither Operating Seller nor License Seller
has received any notice of any kind asserting or otherwise reflecting any such
infringement, unlawful use or other adverse action.
3.11 Contracts; No Default.
(a) Schedule 3.11 includes a complete list as of the date of
this Agreement of all Contracts related to the operation and conduct of the
Stations except (i) Contracts with advertisers for production or the sale of
advertising time on the Station for cash that may be canceled by Seller on not
more than ninety (90) days notice, (ii) oral employment Contracts terminable at
will without severance, and (iii) miscellaneous service Contracts terminable on
not more than thirty (30) days notice without penalty or termination fee. LIN
has furnished or made available to Buyer true and correct copies of all
Contracts listed on Schedule 3.11, including all amendments, modifications and
supplements thereto.
(b) Except as set forth on Schedule 3.11, each Assumed
Contract is a valid and binding obligation of the Operating Seller in accordance
with its terms and is in full force and effect. As of the date hereof, except as
otherwise disclosed on Schedule 3.11, neither the Operating Seller nor, to LIN's
Best Knowledge, any other party to any Assumed Contract is in default under any
such Assumed Contract. To LIN's Best Knowledge, no event has occurred which
would, upon receipt of notice or passage of time, or both, constitute a default
under any Assumed Contract.
3.12 Litigation. Except as disclosed on Schedule 3.12, and except for
any FCC rulemaking proceedings generally affecting the television broadcasting
industry and not particular to LIN, there is no claim, legal action,
counterclaim, suit, arbitration, or other legal, administrative, or tax
proceeding or investigation, nor any order, decree, or judgment, in progress or
pending or threatened to which License Seller, Operating Seller or LIN
Television is a party or otherwise relating to either Station or the Assets
which (a) questions or challenges the validity
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of this Agreement or any action taken or to be taken by LIN pursuant to this
Agreement; or (b) could reasonably be expected to have a Material Adverse
Effect.
3.13 Compliance With Laws. As of the date hereof, except as disclosed
on Schedule 3.13, the operation of the Stations' Business since the TVL
Acquisition Date has been conducted in all material respects in accordance with
all Applicable Law.
3.14 No Broker. Neither LIN nor any other Person acting on behalf of
LIN has incurred any liability for any finders' or brokers' fees or commissions
in connection with this Agreement and the transactions contemplated hereby.
3.15 Transactions with Affiliates. Except as provided on Schedule
3.15, neither Operating Seller nor License Seller is a party, directly or
indirectly, to any contract where any Affiliate of LIN, or any officer,
director, employee, proprietor, partner or shareholder of LIN is a party
thereto, and no such Person has any interest in or right to any of the Assets.
3.16 Insurance. Schedule 3.16 is a true and complete list of all
insurance policies of Operating Seller with respect to the Stations. Operating
Seller is not in default under any policy of insurance listed in Schedule 3.16
and each such policy is in full force and effect as of the date of this
Agreement.
3.17 Personnel.
(a) Schedule 3.17(a) is a true and complete list of all of
the employees of the Operating Seller employed in connection with the Stations'
Business (the "Employees") as of the date of this Agreement, which list
identifies the name of such employees, and the following compensation
information with respect to each of them: (i) current annual base salary; and
(ii) accrued and unpaid vacation and sick leave time. Except as set forth on
Schedule 3.17(a) hereto, or as otherwise provided by Applicable Law, the
employment of all Employees is terminable at will without any penalty or
severance obligations incurred by the employer.
(b) Except as disclosed on Schedule 3.17(b), Operating
Seller is not a party to or subject to any labor agreements with respect to the
Stations and no labor union or other collective bargaining unit represents or,
to LIN's Best Knowledge, claims to represent any of the employees of the
Stations, and there exists no organizational effort presently being made or,
threatened by or on behalf of any labor union with respect to employees of the
Stations. There is no and there has not been any labor dispute, grievance or
controversy, pending, or to the Best Knowledge of LIN, threatened against
Sellers relating to or affecting the business or operations of the Stations
which could reasonably be expected to have Material Adverse Effect.
(c) Except as set forth in Schedule 3.17(c), neither Seller
has at any time maintained or been a party to or made contributions to any
"employee pension benefit plan," as such term is defined in Section 3(2) of
ERISA or any "employee welfare benefit plan," as such term is defined in Section
3(1) of ERISA, whether written or oral.
3.18 Bankruptcy. No insolvency proceedings of any character,
including bankruptcy, receivership, reorganization, composition or arrangement
with creditors, voluntary or involuntary, affecting LIN are pending or, to LIN's
Best Knowledge, threatened, and LIN has
13
not made any assignment for the benefit of creditors or taken any action in
contemplation of, or which would constitute the basis for, the institution of
such insolvency proceedings.
3.19 Environmental.
(a) LIN has delivered or otherwise made available to Buyer
true and correct copies of the most recent Phase I studies performed on behalf
of Operating Seller with respect to the Real Property. Except as otherwise
disclosed in such studies, to the Best Knowledge of LIN, Sellers have complied
in all material respects with and are in compliance in all material respects
with all Applicable Environmental Laws since the TVL Acquisition Date.
(b) Sellers are not a party to any litigation or
administrative proceeding and, to the Best Knowledge of LIN, nor is any
litigation or administrative proceeding threatened against them, which in either
case (i) asserts or alleges that Sellers violated any Applicable Environmental
Laws, (ii) asserts or alleges that Sellers are required to clean up, remove or
take remedial or other response action due to the disposal, depositing,
discharge, leaking or other release of any Hazardous Materials at the Real
Property, or (iii) asserts or alleges that Sellers are required to pay all or a
portion of the cost of any past, present or future cleanup, removal or remedial
or other response action which arises out of or is related to the disposal,
depositing, discharge, leaking or other release of any Hazardous Materials by
Sellers at any of the Real Property.
(c) Operating Seller is not subject, as a result of its
interest in the Real Property, to any judgment, order or citation related to or
arising out of any Applicable Environmental Laws and has not been named or
listed as a potentially responsible party by any Governmental Authority in any
matter related to or arising out of any Applicable Environmental Laws.
3.20 Taxes. There are no Liens on any of the Assets in connection
with any failure (or alleged failure) by LIN to pay any Tax, and except as
otherwise provided in this Agreement there are no unpaid or outstanding Taxes
related to the Stations' Business or the Assets that will result in any
liability to Buyer from or after the Closing.
3.21 Financial Statements. Attached as Schedule 3.21 are true and
complete copies of the unaudited consolidated balance sheets of each of
Operating Seller and License Seller for the period from April 1, 2002 through
October 31, 2002, and the related consolidated statements of income for such
periods. Such financial statements are in accordance with the books and records
of Sellers, have been prepared in accordance with generally accepted accounting
principles consistently applied and present fairly the financial condition of
the Sellers as of the date indicated and the results of Sellers' operations and
changes in cash flows for the period then ended, except for the absence of
footnote disclosures and other normal year-end adjustments which, in the
aggregate, will not be materially adverse.
3.22 No Other Representations and Warranties.
(a) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION
3, (i) BUYER UNDERSTANDS AND AGREES THAT THE ASSETS ARE BEING SOLD, ASSIGNED,
CONVEYED, TRANSFERRED AND DELIVERED TO BUYER IN "AS
14
IS" CONDITION, AND (ii) LIN MAKES NO OTHER WARRANTY WITH RESPECT TO THE ASSETS,
INCLUDING (A) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, AND (B) ANY WARRANTY AS TO
THE OPERATING CONDITION OR ADEQUACY OF REPAIR OF ANY OF THE ASSETS OR THE
WORKING ORDER OR SOUNDNESS OF ANY OF THE ASSETS, INCLUDING IN RESPECT OF ANY
BUILDING, TOWER OR OTHER IMPROVEMENT INCLUDED WITHIN THE ASSETS.
(b) Except for the representations and warranties contained
in this Agreement, subject to and qualified by LIN's disclosure schedules, and
in any certificates required to be delivered by LIN pursuant hereto or in
connection herewith, neither LIN nor any Person acting for LIN makes any
representation or warranty, express or implied, and LIN hereby disclaims any
such representation or warranty, whether by LIN or any of its officers,
directors, employees, agents, representatives, Affiliates or any other Person,
with respect to the execution, delivery or performance by LIN of this Agreement
or with respect to the transactions contemplated hereby, notwithstanding the
delivery to Buyer or any of its officers, directors, employees, agents,
representatives, Affiliates or any other Person of any documentation or other
information by LIN or any of its officers, directors, employees, agents,
representatives, Affiliates or any other Person with respect to any one or more
of the foregoing.
SECTION 4 - REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to LIN as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and, on the Closing Date, will be duly qualified to conduct
business in each jurisdiction in which such qualification is necessary for Buyer
to own the Assets and operate the Stations and conduct the Stations' Business.
Buyer has the requisite power and authority to (a) execute, deliver and perform
this Agreement and consummate the transactions contemplated hereby and (b) own
the Stations' Assets and, subject to obtaining the FCC Consent, the FCC
Licenses. Buyer has no subsidiaries.
4.2 Authorization and Binding Obligation. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby by Buyer have been duly and validly authorized by all
necessary action on the part of Buyer. This Agreement has been duly executed and
delivered by Buyer and constitutes a legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms, except as the
enforceability of this Agreement may be affected by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by judicial discretion in
the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements and Required Consents. Subject
to the receipt of the FCC Consent, the execution, delivery and performance by
Buyer of this Agreement and the documents contemplated hereby (with or without
the giving of notice, the lapse of time or both): (a) do not require the consent
of any other Person; (b) will not conflict with any applicable organizational
and governing documents of Buyer; and (c) will not conflict in any material
respect with, result in a material breach of or constitute a material default
under any
15
Applicable Law or any material contract or agreement to which Buyer is a party
or by which Buyer may be bound.
4.4 Buyer Qualifications. Buyer in good faith believes that it is
legally, financially and otherwise qualified to acquire and own the Stations and
operate the Stations' Business under all applicable federal, state and local
laws, rules and regulations, including the Communications Act and the rules,
regulations and policies of the FCC. Neither Buyer nor any party with an
attributable interest in Buyer has filed any applications to acquire any station
in the same market as the Stations which would result in Buyer or persons with
an attributable interest in Buyer owning or seeking to acquire interests in a
greater number of stations in such market than is permitted under the FCC's
multiple ownership rules, and between the date hereof and the Closing neither
Buyer nor any party with an attributable interest in Buyer will file any such
application. To the Best Knowledge of Buyer, the filing of the Assignment
Application will not require any waiver of the FCC's rules, regulations and
policies with respect to Buyer.
4.5 Litigation. There is no action, suit, proceeding or
investigation pending, or to Buyer's Best Knowledge threatened, against Buyer,
at law or in equity, in any court or before or by any Governmental Authority
that questions or challenges the validity of this Agreement or any action taken
or to be taken by Buyer pursuant to this Agreement, or that could have a
material adverse effect on the business, assets and properties of Buyer taken as
a whole. Except as set forth in Schedule 4.5, Buyer is not subject to any
judgment, order or decree entered in any lawsuit or proceeding.
4.6 Bankruptcy. No insolvency proceedings of any character,
including bankruptcy, receivership, reorganization, composition or arrangement
with creditors, voluntary or involuntary, affecting Buyer are pending or, to
Buyer's Best Knowledge, threatened, and Buyer has not made any assignment for
the benefit of creditors or taken any action in contemplation of, or which would
constitute the basis for, the institution of such insolvency proceedings.
4.7 No Broker. Neither Buyer nor any other Person acting on behalf
of Buyer has incurred any liability for any finders' or brokers' fees or
commissions in connection with this Agreement or the transactions contemplated
hereby.
4.8 Disclaimer. Buyer disclaims any reliance upon any statements or
representations made by LIN or any of their respective officers, directors,
employees, agents, representatives, Affiliates or any other Person, except as
expressly provided herein. Buyer agrees to accept the Assets and comply with its
obligations under this Agreement without regard to the condition of the
Stations' Assets.
SECTION 5 - OPERATION OF THE STATIONS PRIOR TO CLOSING
5.1 Generally.
(a) During the period commencing on the date hereof and
ending on the earlier of the Closing Date or the Termination Date, and except as
otherwise provided in the Local Marketing Agreement, LIN shall operate and
control the Stations in all material respects in the ordinary course of business
(except where such conduct would conflict with the other
16
covenants set forth in this Section 5.1 or with LIN's other obligations under
this Agreement) and in accordance with the covenants contained in this Section
5.
(b) Subject to the provisions of the Local Marketing
Agreement, Operating Seller shall maintain the Stations' Assets in the condition
of such facilities and equipment as of the date hereof, maintain inventory of
supplies, parts and other materials and keep books of account, records and
files, in each case in the ordinary course of business consistent with past
practice and to the extent commercially reasonable if LIN were continuing to own
and operate the Stations as operated as of the date hereof.
(c) License Seller shall continue to operate and control the
FCC Licenses in accordance with the terms thereof in all material respects and
in compliance in all material respects with all Applicable Laws, including all
FCC rules and regulations. License Seller shall execute and file promptly all
necessary applications for renewal of the FCC Licenses and timely file with the
FCC all required reports and pay all required annual regulatory fees for the
operation of the Stations. License Seller will deliver to Buyer, within ten (10)
Business Days after filing, copies of any reports, applications or responses to
the FCC related to the Stations which are filed prior to the Closing Date.
(d) Prior to the Commencement Date, except as otherwise
expressly permitted by any provision of this Section 5, LIN shall not, without
the prior written consent of Buyer, which shall not be unreasonably withheld, do
any of the following:
(i) except with respect to the implementation of
digital broadcasting, apply to the FCC for any construction permit that would
restrict the Stations' operations or make any material change in the Assets that
is not in the ordinary course of business, except when such change is necessary
to maintain or continue the transmission of the Stations' signals at
substantially the same power and strength and interference level as transmitted
on the date hereof;
(ii) except with respect to the Contracts described
on Schedule 3.11 as subject to renegotiation as of the date of this Agreement,
enter into, renew, terminate, amend or modify any Contract that would be binding
on LIN (or the Buyer pursuant to its assumption of such Contract) after the
Closing Date, except any such Contract or Contracts that, in the aggregate,
requires the payment by or on behalf of LIN of consideration consisting of not
more than Fifty Thousand Dollars ($50,000.00) and will be subject to termination
on thirty (30) days notice or be fully performed and satisfied prior to the one
(1) year anniversary thereof;
(iii) take or permit any entity under its control to
take any actions that would result in the Assets being used in violation of any
Applicable Law, nor omit to take any commercially reasonable action that is
necessary to prevent the Stations from being operated or the Stations' Business
from being conducted in violation of any Applicable Law, except for such actions
or omissions that would not have a Material Adverse Effect;
(iv) except as required by law or existing contract,
(A) hire any employee except in the ordinary course of business, (B) enter into,
renew, amend or modify any contract of employment, collective bargaining
agreement or other labor contract or (C) permit
17
any increases in the compensation of any employee of Operating Seller employed
in connection with the Stations' Business except in accordance with past
practices;
(v) create, assume or permit to exist any Liens upon
any of the Assets except for Permitted Liens and Liens that will be discharged
prior to or on the Closing Date; or
(vi) except in the ordinary course of business, (A)
sell, assign, transfer, lease or otherwise dispose of any of the Assets, except
where no longer used in the Stations' Business or in connection with the
acquisition of replacement property of equivalent kind and use, or (B) cancel
any Debt owed to LIN related to the Stations' Business.
(e) During the period between the Commencement Date and the
Closing Date, except as otherwise expressly permitted by the Local Marketing
Agreement or any provision of this Section 5, LIN shall not, without the prior
written consent of Buyer, which shall not be unreasonably withheld, do any of
the following:
(i) except with respect to the implementation of
digital broadcasting, apply to the FCC for any construction permit that would
restrict the Stations' operations or make any material change in the Assets that
is not in the ordinary course of business, except when such change is necessary
to maintain or continue the transmission of the Stations' signals at
substantially the same power and strength and interference level as transmitted
on the date hereof;
(ii) except with respect to the Contracts described
on Schedule 3.11 as subject to renegotiation as of the date of this Agreement,
enter into, renew, terminate, amend or modify any Contract that would be binding
on LIN (or the Buyer pursuant to its assumption of such Contract) after the
Closing Date;
(iii) take or permit any entity under its control to
take any actions that would result in the Assets being used in violation of any
Applicable Law, nor omit to take any commercially reasonable action that is
necessary to prevent the Stations from being operated or the Stations' Business
from being conducted in violation of any Applicable Law, except for such actions
or omissions that would not have a Material Adverse Effect;
(iv) collect Accounts Receivable unless the proceeds
of such collection are remitted to Buyer within five (5) days of such
collection;
(v) except as required by law or existing contract,
(A) hire any employee except in the ordinary course of business, (B) enter into,
renew, amend or modify any contract of employment, collective bargaining
agreement or other labor contract or (C) permit any increases in the
compensation of any employee of Operating Seller employed in connection with the
Stations' Business except in accordance with past practices;
(vi) create, assume or permit to exist any Liens upon
any of the Assets except for Permitted Liens and Liens that will be discharged
prior to or on the Closing Date; or
(vii) except in the ordinary course of business, (A)
sell, assign, transfer, lease or otherwise dispose of any of the Assets, except
where no longer used in the Stations'
18
Business or in connection with the acquisition of replacement property of
equivalent kind and use, or (B) cancel any Debt owed to LIN related to the
Stations' Business.
(f) The expiration by their terms of any Assumed Contracts
to which Operating Seller is a party prior to the Closing shall not be deemed a
violation of this Section 5.1.
(g) Nothing in this Section 5 is intended to modify or amend
the rights and obligations of the parties under the Local Marketing Agreement,
and LIN shall have no liability under this Section 5 for any act or omission of
Buyer pursuant to the Local Marketing Agreement.
(h) Prior to the Closing Date, LIN will deliver copies of
all Contracts entered into by LIN with respect to the Stations' Business between
the date of this Agreement and the Closing Date.
(i) Whenever, pursuant to Section 5.1(d) or (e) hereof, LIN
shall request the consent of Buyer, the request shall be sent in writing to
Buyer in accordance with Section 11.2 hereof and Buyer's consent to such request
shall not be unreasonably withheld.
5.2 Access to Information. During the period commencing on the date
hereof and ending on the earlier to occur of the Closing or termination of this
Agreement, LIN shall give Buyer and its employees and other authorized
representatives, during normal business hours and with reasonable prior notice,
access to the Assets and to all personnel, properties, books, records and
documents of the Stations for the purpose of audit and inspection, and shall
reasonably cooperate with any such audit or inspection, and will furnish or
cause to be furnished to Buyer or its authorized representatives, upon
reasonable notice, all information with respect to the Stations' Business that
Buyer may reasonably request.
5.3 Insurance. LIN shall maintain the existing insurance policies on
the Stations' Asses or other policies providing substantially similar coverages
until the Closing Date.
5.4 Financial Information. LIN shall furnish Buyer, within thirty
(30) days after the end of each month ending between the date of this Agreement
and the Closing Date, an unaudited balance sheet and statement of income and
expense for the Stations and such other financial information prepared by LIN as
Buyer may reasonably request.
5.5 Updated Schedules.
(a) LIN shall promptly disclose in writing to Buyer, and
Buyer shall promptly disclose in writing to LIN, any information contained in
its respective representations and warranties or LIN's schedules hereto which,
because of an event occurring after the date of this Agreement, is incomplete or
is no longer correct as of all times after the date of this Agreement and until
the Closing Date. Any such disclosure shall be in the form of an updated
Schedule, marked to reflect the new or amended information.
(b) In the event LIN makes any such disclosure prior to the
Closing, such disclosure shall not be deemed to amend the representations and
warranties of LIN or LIN's
19
schedules hereto, and shall not be deemed to limit or otherwise affect the
rights of Buyer pursuant to Section 9.1 hereof; provided, however, that if the
Buyer proceeds to Closing notwithstanding such disclosures and otherwise in
accordance with the provisions of this Agreement, the disclosures made by LIN
pursuant to this Section 5.5 shall be deemed to amend and supplement the
representations and warranties of LIN and LIN's disclosure schedules hereto and
shall be incorporated herein by reference effective as of the Closing, and in
such event Buyer shall not have the right to be indemnified for any matter
contained in such disclosure.
5.6 Notice of Certain Matters. LIN shall give prompt written notice
to Buyer and Buyer shall give prompt written notice to LIN of any failure of LIN
or Buyer, as the case may be, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder.
5.7 Notice of Proceedings. LIN and Buyer shall promptly notify the
other in writing upon becoming aware of any order or decree or any complaint
praying for an order or decree restraining or enjoining the consummation of this
Agreement or the transactions contemplated hereunder, or upon receiving any
notice from any Governmental Authority of its intention to institute an
investigation into, or institute a suit or proceeding to restrain or enjoin the
consummation of this Agreement or the transactions contemplated hereby. LIN and
Buyer will each use commercially reasonable efforts to contest, defend and
resolve any such suit, proceeding or injunction brought against it so as to
permit the prompt consummation of the transactions contemplated hereby. LIN
shall notify Buyer promptly of any material action filed or threatened against
the Stations or the Assets.
5.8 Access to Books and Records. LIN shall provide Buyer access to
and the right to copy for a period of three (3) years from the Closing Date any
books and records relating to the Assets but not included in the Assets. Buyer
shall provide LIN access and the right to copy for a period of three (3) years
after the Closing Date any books and records relating to the Assets that are
included in the Assets.
5.9 Further Assurances. From and after the Closing, each party shall
from time to time, at the request of any other party and without further cost or
expense to such requesting party, execute and deliver such other instruments of
conveyance and transfer and take such other actions as such other party may
reasonably request in order more effectively to carry out this Agreement and the
other agreements specified in this Agreement and to vest in the Buyer good and
marketable title to the Assets.
5.10 Employees. Buyer shall offer employment as of the Closing Date
to each Employee other than those Employees identified on Schedule 5.10 (the
Employees accepting employment with Buyer, the "Transferred Employees").
Notwithstanding anything to the contrary contained herein, unless otherwise
provided under the terms of a written employment or collective bargaining
agreement, each Transferred Employee shall be employed by Buyer on an at will
basis and nothing shall prohibit Buyer from terminating such employment at any
time after the Closing.
5.11 Welfare Plans. Buyer shall (a) waive or cause to be waived all
limitations as to preexisting conditions (to the extent required by Applicable
Law), exclusions and waiting
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periods with respect to participation and coverage requirements applicable to
the Transferred Employees under any "employee welfare benefit plan" (as defined
in Section 3(1) of ERISA) that such employees may be eligible to participate in
after the Closing Date and (b) provide or cause to be provided to each
Transferred Employee credit for any co-payment and deductibles paid prior to the
Closing Date in satisfying any applicable deductible or out-of-pocket
requirements under any such plans that such employees are eligible to
participate in after the Closing Date.
5.12 Past Service Credit. Buyer agrees that, with respect to all of
the employee benefit programs and arrangements covering or otherwise benefiting
any of the Transferred Employees on or after the Closing Date, service with
Operating Seller shall be included for purposes of determining any period of
eligibility to participate or to vest in benefits under such programs and
arrangements (but not for benefit accrual or any other purpose under such
programs or arrangements).
5.13 WARN Act. Buyer and LIN agree to cooperate in good faith to
determine whether any notification may be required under the WARN Act as a
result of the transactions contemplated under the Agreement and, if such notices
are required, to provide such notice in a manner that is reasonably satisfactory
to each of the parties hereto.
5.14 Receipts and Disbursements. In the event that Buyer receives any
payment subsequent to the Closing Date properly payable to LIN in connection
with the Excluded Assets or otherwise, such payment shall promptly be the
property of, and shall be forwarded and remitted to, LIN. In the event that LIN
receives any payment subsequent to the Closing Date properly payable to Buyer in
connection with the Assets or otherwise, such payment shall promptly be the
property of, and shall be forwarded and remitted to, Buyer.
SECTION 6 - SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses from License Seller
to Buyer as contemplated by this Agreement is subject to the prior consent and
approval of the FCC.
(b) Within ten (10) Business Days after the date hereof, LIN
and Buyer shall prepare and thereafter shall promptly file with the FCC the
Assignment Application. The FCC filing fees shall be paid one-half by Buyer and
one-half by LIN. The parties shall thereafter prosecute the Assignment
Application with commercially reasonable diligence and otherwise use their
commercially reasonable efforts to obtain the grant of the Assignment
Application as expeditiously as practicable. Each party will promptly provide to
the other party a copy of any pleading, order or other document served on them
relating to such Assignment Application. LIN shall comply with all Applicable
Laws regarding public notice of the Assignment Application.
(c) Each party agrees to comply with any condition imposed
on it by any FCC Consent, except that no party shall be required to comply with
a condition if (i) the condition was imposed on it as the result of a
circumstance the existence of which does not constitute a breach by that party
of any of its representations, warranties or covenants hereunder or (ii)
compliance with the condition would have a material adverse effect upon it.
Buyer and LIN shall oppose any
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petitions to deny or other objections filed with respect to the application for
any FCC Consent and any requests for reconsideration or review of any FCC
Consent.
(d) If the Closing shall not have occurred for any reason
within the original effective period of any FCC Consent, and neither party shall
have terminated this Agreement under Section 9 hereof, the parties shall jointly
request an extension of the effective period of such FCC Consent. No extension
of the effective period of any FCC Consent shall limit the exercise by either
party of its right to terminate the Agreement under Section 9 hereof.
6.2 Third Party Consents. LIN shall use all reasonable efforts and
Buyer shall cooperate in all reasonable respects with LIN to obtain any third
party consent or approval required pursuant to any Assumed Contracts as a result
of the purchase and sale of the Assets as contemplated herein. If such a consent
is not obtained, or if an attempted assignment of such an Assumed Contract be
ineffective, LIN shall use all reasonable efforts to provide Buyer the benefits
of any such Assumed Contract and, to the extent Buyer is provided with the
benefits of such Assumed Contract, Buyer shall perform or discharge on behalf of
LIN the obligations and liabilities under such Assumed Contract in accordance
with the provisions thereof. In addition to Buyer's obligation pursuant to the
foregoing sentence, as to any Assumed Contract that is not effectively assigned
to Buyer as of the Effective Time but is thereafter effectively assigned to
Buyer, Buyer shall, from and after the effective date of such assignment,
assume, and shall thereafter pay, perform and discharge as and when due, all
liabilities and obligations of LIN arising under such Assumed Contract.
6.3 Confidentiality.
(a) Neither party will use or disclose to any other Person
(except as may be necessary for the consummation of the transactions
contemplated hereby, or as required by Applicable Law, and then only with prior
notice to the other party hereto) this Agreement or the Local Marketing
Agreement or any information received from the other party hereto or their
agents in the course of investigating, negotiating and performing the
transactions contemplated by this Agreement or the Local Marketing Agreement;
provided, however, that each party may disclose such information to such party's
officers, directors, employees, lenders, advisors, attorneys, accountants and
financial advisors who need to know such information in connection with the
consummation of the transactions contemplated by this Agreement and who are
informed by such party of the confidential nature of such information. Nothing
shall be deemed to be confidential information that: (i) is already in such
party's possession, provided that such information is not known by such party to
be subject to another confidentiality agreement with or other obligation of
secrecy to the other party hereto or another party, or (ii) becomes generally
available to the public other than as a result of a disclosure by such party or
such party's officers, directors, employees, lenders, advisors, attorneys or
accountants, or (iii) becomes available to such party on a nonconfidential basis
from a source other than another party hereto or its advisors, provided that
such source is not known by such party to be bound by a confidentiality
agreement with or other obligation of secrecy to the other party hereto or
another party, or (iv) is developed independently by either party without resort
to the confidential information of the other party. In the event this Agreement
is terminated and the purchase and sale contemplated hereby abandoned, each
party will return to the other party all information, including all documents,
work papers and other written confidential material, obtained by such party from
the
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other party in connection with the transactions contemplated by this Agreement.
The covenant contained in this Section 6.3(a) shall survive for a period of five
(5) years from the earlier of the Closing Date or the date in which this
Agreement is terminated pursuant to Section 9.
(b) No party shall publish any press release or make any
other public announcement concerning this Agreement or the transactions
contemplated hereby without the prior written consent of the other party, which
shall not be withheld unreasonably; provided, however, that nothing contained in
this Agreement shall prevent any party, after notification to the other party,
from making any filings with governmental authorities that, in its judgment, may
be required or advisable in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(c) Notwithstanding clauses (a) and (b) of this Section 6.3,
each of LIN and Buyer shall be permitted to disclose this Agreement and the
Local Marketing Agreement (including the terms thereof) to the extent such
disclosure (i) is required in connection with a public offering of securities by
(A) LIN, Buyer or any of their Affiliates or (B) Nexstar Broadcasting Group,
L.L.C., or any of its subsidiaries or (ii) is required in connection with any
regulatory filing or other filing required to be made with a Governmental
Authority by any of the foregoing parties.
6.4 Cooperation. Buyer and LIN shall cooperate fully with each other
and their respective counsel and accountants in connection with any actions
required to be taken as part of their respective obligations under this
Agreement, and Buyer and LIN shall execute such other documents as may be
necessary or desirable to implement and consummate this Agreement, and otherwise
use their commercially reasonable efforts to consummate the transactions
contemplated hereby and to fulfill their obligations under this Agreement.
6.5 Control of the Stations. Prior to the Closing Date, Buyer shall
not, directly or indirectly, control, supervise or direct or attempt to control,
supervise or direct, the operations of the Stations; those operations, including
complete control and supervision of all of the Stations' employees and policies,
shall be the sole responsibility of LIN.
6.6 Local Marketing Agreement. At or prior to the date of this
Agreement, Buyer and Operating Seller shall enter into the Local Marketing
Agreement.
6.7 Release of Liens. Except for Permitted Liens, at or prior to the
Closing, LIN shall obtain the release of any Liens on the Assets and shall duly
file releases or terminations of all such Liens with any Governmental Authority
with whom evidence of such Lien has previously been filed.
6.8 Real Estate Matters.
(a) Prior to the Closing, Sellers will reasonably cooperate
with Buyer so that Buyer may obtain, for the benefit of and at the sole cost of
Buyer, all documents reasonably required (including estoppel certificates,
owner's affidavits, indemnities and GAP undertakings) for a final commitment for
an ALTA Owners Policy of Title Insurance, as the case may be, Form B-1970 (or if
not reasonably attainable, 1992 Form), for each parcel of Real Property owned by
Operating Seller, issued by a title insurer designated by Buyer (the "Title
Insurer"), in such
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amount as Buyer reasonably determines to be the fair market value thereof,
insuring the Buyer's interest in such parcel, subject only to the Permitted
Liens, and with such other endorsements and other terms and conditions as Buyer
may reasonably request.
(b) At Buyer's request, Sellers will reasonably cooperate
with Buyer so that Buyer may procure for the benefit of and at the sole cost of
Buyer, in preparation for the Closing, current surveys of each parcel of Owned
Real Property disclosing no survey defects or encroachments which materially
interfere with the current business and operation of the Station, prepared by a
licensed surveyor and conforming to 1992 ALTA/ACSM Minimum Detail Requirements
for Urban Land Title Surveys, and such standards as the Title Insurer may
reasonably require as a condition to the removal of any survey exceptions from
the commitment for the title insurance policy described in Section 6.10(a), and
certified to Buyer, Buyer's lenders and the Title Insurer, in a form sufficient
to permit the issuance of the title policies described in Section 6.8(a).
SECTION 7 - CONDITIONS TO OBLIGATIONS OF BUYER AND LIN
7.1 Conditions to Obligations of Each Party. The respective
obligations of each party hereto at the Closing are subject to the satisfaction
or waiver by each party on or prior to the Closing Date of each of the following
conditions:
(a) The License Seller shall be the holder of all FCC
Licenses.
(b) The FCC Consent shall have been granted and shall, at
Closing be a Final Order and in full force and effect.
(c) No injunction, restraining order or decree of any nature
of any Governmental Authority of competent jurisdiction shall be in effect that
restrains or prohibits the consummation of the transactions contemplated by this
Agreement.
(d) Except for governmental investigations relating to high
definition television or the broadcast industry generally, there shall be no
claim, suit, action or other proceeding pending or threatened before or by any
court, governmental agency, arbitrator or other entity against any of the
parties to this Agreement that makes it reasonably likely to be unlawful to
consummate the Closing.
(e) All Required Consents shall have been obtained.
If any of the conditions set forth in this Section 7.1 have not been satisfied
prior to or at the Closing, the parties may (without waiving any other right or
remedy under this Agreement or the Local Marketing Agreement) in their sole
discretion waive any such condition (other than as set forth in Section 7.1(b))
and elect to proceed with the consummation of the transactions contemplated
hereby.
7.2 Conditions to Obligations of Buyer. All obligations of Buyer at
the Closing are subject at Buyer's option to the satisfaction or waiver on or
prior to the Closing Date of each of the following conditions:
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(a) All representations and warranties of LIN contained in
this Agreement, if specifically qualified by materiality, shall be true and
accurate in all respects, and, if not so qualified, shall be true and accurate
in all material respects, at and as of the Closing Date as though made at and as
of that time except (i) to the extent any such representation or warranty is
expressly stated only as of a specified earlier date or dates, in which case
such representation and warranty shall be true and accurate as of such earlier
specified date or dates and (ii) for changes that are expressly permitted or
contemplated pursuant to this Agreement or (iii) where the consequence of the
matter set forth in such one or more representations and warranties having
failed to be true and accurate as of the date when made, whether on the Closing
Date or on such earlier specified date, individually or in the aggregate could
not reasonably be expected to have a Material Adverse Effect.
(b) LIN 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.
(c) All Liens (other than Permitted Liens) on the Assets
shall have been released as provided in Section 6.7.
(d) There shall not have been any modification of any FCC
License that could have a Material Adverse Effect. No proceeding shall be
pending the effect of which is reasonably likely to be the revocation,
cancellation, failure to renew, suspension or adverse modification of any FCC
License.
(e) LIN shall have made or stand willing to make all the
deliveries to Buyer described in Section 8.3.
If any of the conditions set forth in this Section 7.2 have not been satisfied
prior to or at the Closing, Buyer may (without waiving any other right or remedy
under this Agreement or the Local Marketing Agreement) in its sole discretion
waive any such condition and elect to proceed with the consummation of the
transactions contemplated hereby.
7.3 Conditions to Obligations of LIN. All obligations of LIN at the
Closing hereunder are subject at LIN's option to the satisfaction or waiver on
or prior to the Closing Date of each of the following conditions:
(a) All representations and warranties of Buyer contained in
this Agreement, if specifically qualified by materiality, shall be true and
accurate in all respects, and, if not so qualified, shall be true and accurate
in all material respects, at and as of the Closing Date as though made at and as
of that time except (i) any such representation or warranty is expressly stated
only as of a specified earlier date or dates, in which case such representation
and warranty shall be true and accurate as of such earlier specified date or
dates, or (ii) changes are permitted or contemplated pursuant to this Agreement.
(b) 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.
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(c) Buyer shall have made or stand willing to make all the
deliveries described in Section 8.4.
If any of the conditions set forth in this Section 7.3 not been satisfied prior
to or at the Closing, Buyer may (without waiving any other right or remedy under
this Agreement or the Local Marketing Agreement) in its sole discretion waive
any such condition and elect to proceed with the consummation of the
transactions contemplated hereby.
SECTION 8 - CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Subject to the satisfaction or, to the extent
permissible by law, waiver (by the party for whose benefit the condition is
imposed) on the date scheduled for Closing of the conditions described in
Section 7 hereof, the parties hereto shall be obligated to consummate the
transactions contemplated hereby at the Closing, which shall take place at 10:00
a.m., Washington, D.C. time, on a date not less than ten (10) Business Days nor
more than thirty (30) Business Days following the date the FCC Consent becomes a
Final Order as Buyer shall specify in writing to LIN at least five (5) Business
Days in advance or, if Buyer fails to so specify, on the last date provided for
in the foregoing (the "Closing Date").
(b) The risk of any loss, damage, impairment, confiscation
or condemnation of any of the Stations' Assets from any cause whatsoever shall
be borne by LIN at all times prior to the Closing. If any damage or destruction
of any of the Stations' Assets or any other event occurs prior to Closing which
(i) causes either of the Stations to cease broadcasting operations for a period
of five (5) or more consecutive days or (ii) prevents in any material respect
signal transmission by either of the Stations in the normal and usual manner,
and LIN fails to restore or replace the Stations' Assets so that normal and
usual transmission is resumed within ten (10) Business Days of the damage,
destruction or other event, Buyer, in its sole discretion, may (A) terminate
this Agreement by providing written notice to LIN no later than five (5)
Business Days following the end of the period specified in clause (i) or (ii)
above, as applicable, or (B) proceed to consummate the transaction contemplated
by this Agreement and complete the restoration and replacement of the Stations'
Assets after the Closing Date, in which event (1) LIN shall deliver to Buyer all
insurance proceeds received by LIN in connection with such damage, destruction
or other event, and (2) Buyer shall not be entitled to any other compensation,
including any payment pursuant to Section 10 hereof, with respect to the
Stations' Assets so damaged or destroyed. To the extent necessary to accomplish
any of the foregoing, LIN shall, at Closing, and thereafter LIN shall, as
reasonably necessary, execute and deliver to Buyer all required proofs of loss,
assignments of claims and other similar items.
8.2 Closing Place. The Closing shall be held at the offices
of Xxxxxxxxx & Xxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
or any other place that is agreed in writing by Buyer and LIN.
8.3 Deliveries by LIN. Prior to or on the Closing Date, LIN
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
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(a) Duly executed assignments and other conveyancing
documents that are sufficient to convey and vest good and, in the case of owned
Real Property, marketable title in and to the Assets to Buyer, free and clear of
all Liens, except for Permitted Liens. Such documents shall include, but shall
not be limited to, the following:
(i) Assignment and Assumption Agreement in a form
reasonably acceptable to the parties;
(ii) Assignment and Acceptance Agreement of the FCC
Licenses in a form reasonably acceptable to the parties;
(iii) special warranty deeds (the "Deeds") in
recordable form conveying fee simple title to all Real Property free and clear
of all Liens other than Permitted Liens; and
(iv) a Xxxx of Sale in a form reasonably acceptable
to the parties.
(b) A copy all instruments evidencing the Required Consents
and any other consents received;
(c) A certificate, dated as of the Closing Date, executed by
LIN, certifying to the fulfillment of the conditions set forth in Sections
7.2(a) and (b);
(d) A financing statement or other documentation in a form
reasonably acceptable to Buyer evidencing the discharge and release of any Liens
(other than Permitted Liens) on the Assets; and
(e) Such other documents as may reasonably be requested by
Buyer.
8.4 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to LIN the following, in form and substance reasonably
satisfactory to LIN and its counsel:
(a) The payment required by Section 2.3(b);
(b) Appropriate assumption and acceptance agreements
pursuant to which Buyer shall assume and undertake to perform LIN's obligations
under the Assumed Contracts and under the FCC Licenses to the extent such
obligations arise after Closing;
(c) A certificate, dated as of the Closing Date, executed on
behalf of Buyer by the President of Buyer, certifying to the fulfillment of the
conditions set forth in Sections 7.3(a) and (b); and
(d) Such other documents as may be reasonably requested by
LIN.
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SECTION 9 - TERMINATION
9.1 Termination of Agreement. This Agreement may be terminated only
as follows:
(a) at any time by mutual written consent of LIN, on the one
hand, and Buyer, on the other;
(b) at any time after the date determined for the Closing in
accordance with Section 8.1(a) and before the Termination Date,
(i) by LIN, by written notice to the Buyer, if each
condition set forth in Sections 7.1, 7.2 and 7.3 has been satisfied (or will be
satisfied by the delivery of documents by the parties at or prior to the
Closing) or waived in writing on such date and the Buyer has nonetheless failed
to consummate the Closing;
(ii) by the Buyer, by written notice to LIN, if each
condition set forth in Sections 7.1, 7.2 and 7.3 has been satisfied (or will be
satisfied by the delivery of documents by the parties prior to the Closing) or
waived in writing on such date and LIN has nonetheless failed to consummate the
Closing;
(c) by Buyer (i) in the event of a breach by LIN of any
representation, warranty, covenant or other obligation contained herein that (A)
would give rise to the failure of a condition set forth in Section 7.1 or 7.2
and (B) cannot be or has not been cured within thirty (30) days after the giving
of written notice to the breaching party of such breach or (ii) in the event of
a breach by LIN of any covenant or obligation contained in the Local Marketing
Agreement that cannot be or has not been cured within thirty (30) days after the
giving of written notice to the breaching party of such breach; provided,
however, that the Buyer is not then in default or breach in any material respect
of its obligations under this Agreement or the Local Marketing Agreement;
(d) by LIN (i) in the event of a breach by Buyer of any
representation, warranty, covenant or other obligation contained herein that (A)
would give rise to the failure of a condition set forth in Section 7.1 or 7.3
and (B) cannot be or has not been cured within thirty (30) days after the giving
of written notice to the breaching party of such breach or (ii) in the event of
a breach by Buyer of any covenant or obligation contained in the Local Marketing
Agreement that cannot be or has not been cured within thirty (30) days after the
giving of written notice to the breaching party of such breach; provided,
however, that LIN is not then in default or breach in any material respect of
its obligations under this Agreement or the Local Marketing Agreement;
(e) by any party, upon written notice to the other party, if
any Governmental Authority of competent jurisdiction shall have issued a final
and permanent order enjoining or otherwise prohibiting the consummation of the
transactions contemplated by this Agreement (including the denial of the FCC
Consent by Final Order);
(f) by Buyer, in the event that LIN becomes or is declared
insolvent or bankrupt, makes an assignment for the benefit of all or
substantially all of its creditors, enters into an agreement for the
composition, extension or readjustment of all or substantially all or of
28
its obligations, or becomes the subject of any proceeding related to its
liquidation or insolvency or for the appointment of a receiver or similar
officer and such proceeding is not dismissed within sixty (60) days;
(g) by LIN, in the event that Buyer becomes or is declared
insolvent or bankrupt, makes an assignment for the benefit of all or
substantially all of its creditors, enters into an agreement for the
composition, extension or readjustment of all or substantially all or of its
obligations, or becomes the subject of any proceeding related to its liquidation
or insolvency or for the appointment of a receiver or similar officer and such
proceeding is not dismissed within sixty (60) days; or
(h) by either party after the Termination Date except if the
failure to close the transactions contemplated hereby prior to the Termination
Date is a result of any breach of this Agreement or the Local Marketing
Agreement by the terminating party.
9.2 Procedure and Effect of Termination.
(a) In the event of termination of this Agreement by any
party or parties pursuant to Section 9.1, written notice thereof shall be given
promptly to the other party and this Agreement shall terminate and the
transactions contemplated hereby shall be abandoned without further action by
any of the parties hereto, but subject to and without limiting any of the rights
of the parties specified herein in the event a party is in default or breach in
any material respect of its obligations under this Agreement. In the event that
this Agreement is terminated pursuant to the terms and subject to the conditions
hereof, upon the Termination Date:
(i) None of the parties hereto nor any of their
respective partners, directors, officers, shareholders, employers, agents or
Affiliates (each, a "Related Party") shall have any liability or further
obligation to the other party or any of their respective Related Parties
pursuant to this Agreement with respect to which termination has occurred,
except for the obligations of LIN and Buyer (but not including LIN's or Buyer's
Related Parties) as stated in Sections 6.3 and 10 and this Section 9.2; and
(ii) All filings, applications and other submissions
relating to the transactions contemplated hereby as to which termination has
occurred shall, to the extent practicable, be withdrawn from the agency or other
Person to which made.
(b) (i) If this Agreement is terminated by Buyer
pursuant to Section 9.1(b)(ii), 9.1(c) or 9.1(f), LIN shall return the Initial
Payment in full to Buyer without limitation of any other remedies available to
Buyer.
(ii) If this Agreement is terminated by LIN pursuant
to Section 9.1(b)(i), 9.1(d) or 9.1(g), LIN shall have the right to retain the
Initial Payment as liquidated damages under this Agreement and not as a penalty,
and such right shall be LIN's sole remedy at law or equity for Buyer's breach
hereunder and in respect of termination of this Agreement. LIN and Buyer hereby
agree that actual damages in such circumstances may be difficult to ascertain
and that the Initial Payment is a fair and equitable amount to reimburse LIN for
damages sustained due to Buyer's breach of this Agreement.
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(iii) If this Agreement is terminated by either party
pursuant to Section 9.1(a), 9.1(e) or 9.1(h), LIN shall have the right to retain
a portion of the Initial Payment equal to the product of (A) the number of
calendar days from the Commencement Date until the date of such termination and
(B) Three Thousand Three Hundred Dollars ($3,300.00) (the "LMA Payment") as
consideration for entering into the Local Marketing Agreement during such
period, and LIN shall return the remaining portion of the Initial Payment to
Buyer; provided, however, that in no circumstances will the LMA Payment exceed
the amount of the Initial Payment.
(c) No later than five (5) days following the termination of
this Agreement, LIN shall pay to Buyer all amounts required to be paid to Buyer
pursuant to Section 9.2(b)(i) or 9.2(b)(iii) hereof, if applicable, by wire
transfer of immediately available funds for credit to Buyer in accordance with
wire transfer instructions provided by Buyer in writing (or by such other method
of funds transfer as may be agreed upon by Buyer and LIN). With respect to any
amounts owed by LIN pursuant to this Section 9.2(c), Buyer shall have the right
to set-off any amounts it owes to LIN against any amounts owed to it by LIN,
provided, that Buyer provides a reasonably detailed written accounting of any
such offset made in connection with or in lieu of any payment required under
this Section 9.2(c).
(d) If LIN fails to pay when due any amount under this
Section 9.2, interest on such amount will accrue from the date payment was due
and be payable until paid at the per annum rate of the "prime rate" as published
in the Money Rates column of the Eastern Edition of The Wall Street Journal (or
the average of such rates if more than one rate is indicated) plus two percent
(2%) and shall be payable upon demand.
9.3 Attorneys' Fees. In the event of a default by any party that
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party or parties of its reasonable legal fees and expenses (whether
incurred in arbitration, at trial or on appeal).
SECTION 10 - SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Survival. The representations and warranties of Buyer and LIN
contained herein shall survive the Closing (regardless of any investigation or
inquiry of any party and even if the damaged party knew or had reason to know of
any misrepresentation or breach of warranty at the time of the Closing) for a
period of twelve (12) months after the Closing Date and shall terminate on such
date except to the extent that any claims for indemnification in respect of a
breach of any such representation or warranty is made on or before such date, in
which case such representation or warranty shall survive until the resolution of
such claim; provided, however, that the representations and warranties set forth
in Sections 3.3 and 3.14 shall survive in perpetuity. Any claim for
indemnification in respect of a covenant or agreement of Buyer or LIN hereunder
to be performed before the Closing shall be made before the date that is twelve
(12) months after the Closing Date. The covenants and agreements of LIN
contained herein and to be performed to any extent after the Closing Date shall
survive the Closing for a period of twelve (12) months after the Closing Date
and shall terminate on such date and any claims for indemnification in respect
of a breach of such covenants to be performed in any respect after the
30
Closing Date must be made on or before such date. The covenants and agreements
of the parties contained herein shall survive the Closing Date until fully
discharged and performed.
10.2 Indemnification by LIN.
(a) After the Closing, LIN hereby agrees to indemnify,
defend and hold Buyer harmless against and with respect to, and shall reimburse
Buyer for, any and all Damages which Buyer may suffer or incur, or become
subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any representation
or warranty of LIN made in this Agreement, the Local Marketing Agreement or any
certificate, document or instrument prepared by LIN and delivered to Buyer
pursuant to the terms and subject to the conditions hereof or thereof;
(ii) any failure by LIN to carry out, perform or
otherwise fulfill or comply with any covenant, agreement, undertaking or
obligation of LIN under this Agreement;
(iii) the Retained Liabilities; and
(iv) any suit, action or other proceeding brought by
any Governmental Authority or any other Person arising out of, or related to,
any of the matters referred to in the foregoing clauses (i) through (iii).
(b) LIN's obligation to indemnify Buyer pursuant to Section
10.2(a)(i) (and Section 10.2(a)(iv) to the extent related to the matters
described in Section 10.2(a)(i)) shall be subject to all of the following
limitations:
(i) Buyer shall be entitled to indemnification only
for those Damages arising with respect to any claim as to which Buyer has given
LIN written notice within the appropriate time period set forth in Section 10.1
hereof for such claim.
(ii) No indemnification shall be required to be made
by LIN until the aggregate amount of Damages of Buyer under Section 10.2(a)(i)
(and Section 10.2(a)(iv) to the extent related to the matters described in
Section 10.2(a)(i)) exceeds Seventy Five Thousand Dollars ($75,000.00), and then
only with respect to the amount of such Damages in excess of Seventy Five
Thousand Dollars ($75,000.00).
(iii) No indemnification shall be required to be made
by LIN to the extent that the aggregate amount of Damages of Buyer under Section
10.2(a)(i) (and Section 10.2(a)(iv) to the extent related to the matters
described in Section 10.2(a)(i)) exceeds One Million Five Hundred Thousand
Dollars ($1,500,000.00).
(iv) Following the Closing, the sole and exclusive
remedy for Buyer for any claim (whether such claim is framed in tort, contract
or otherwise) arising out of a breach of any representation, warranty, covenant
or other agreement herein or otherwise arising out of or in connection with the
transactions contemplated by this Agreement, the Assets or the operations of the
Stations shall be a claim for indemnification pursuant to this Section 10 or
Section 11.7 (except in the case of fraud).
31
(v) No Related Party of LIN shall have (A) any
personal liability to Buyer as a result of the breach of any representation,
warranty, covenant or agreement of LIN contained herein or otherwise arising out
of or in connection with the transactions contemplated hereby, the operations of
the Stations or the Assets or (B) any personal obligation to indemnify Buyer for
any of Buyer's claims pursuant to Section 10.2(a), and Buyer waives and releases
and shall have no recourse against any of such Related Parties as a result of
the breach of any representation, warranty, covenant or agreement of LIN
contained herein or otherwise arising out of or in connection with the
transactions contemplated hereby, the operation of the Stations or the Assets.
(c) Solely for purposes of calculating the amount of any
Damages that are subject to the indemnification obligations of LIN under this
Section 10.2, the representations, warranties, covenants and agreements of LIN
set forth in this Agreement and the Local Marketing Agreement will be considered
without regard to any materiality qualification set forth therein.
10.3 Indemnification by Buyer.
(a) After the Closing, Buyer hereby agrees to indemnify,
defend and hold LIN harmless against and with respect to, and shall reimburse
LIN for, any and all Damages which Buyer may suffer or incur, or become subject
to, as a result of or in connection with:
(i) any breach or inaccuracy of any representation
or warranty of Buyer made pursuant to the terms and subject to the conditions of
this Agreement or the Local Marketing Agreement or any certificate, document or
instrument prepared by Buyer and delivered to LIN pursuant to the terms and
subject to the conditions hereof or thereof;
(ii) any failure by Buyer to carry out, perform or
otherwise fulfill or comply with any covenant, agreement, undertaking or
obligation of Buyer under this Agreement;
(iii) any suit, action or other proceeding brought by
any Governmental Authority or any other Person arising out of, or related to,
any of the matters referred to in the foregoing clauses (i) and (ii).
(b) Buyer's obligation to indemnify LIN pursuant to Section
10.3(a) shall be subject to all of the following limitations:
(i) LIN shall be entitled to indemnification only
for those Damages arising with respect to any claim as to which LIN have given
Buyer written notice within the appropriate time period set forth in Section
10.1 hereof for such claim.
(ii) No Related Party of Buyer shall have (A) any
personal liability to LIN as a result of the breach of any representation,
warranty, covenant or agreement of Buyer contained herein or otherwise or (B)
personal obligation to indemnify LIN for any of LIN's claims pursuant to Section
10.3(a), and LIN waives and releases and shall have no recourse against any one
of such Related Parties as the result of the breach of any representation,
warranty, covenant or agreement of Buyer contained herein or otherwise arising
out of or in connection with the transactions contemplated hereby or the
operations of the Stations.
32
(c) Solely for purposes of calculating the amount of any
Damages that are subject to the indemnification obligations of Buyer under this
Section 10.3, the representations, warranties, covenants and agreements of Buyer
set forth in this Agreement and the Local Marketing Agreement will be considered
without regard to any materiality qualification set forth therein.
10.4 Procedure for Indemnification. The procedure for indemnification
shall be as follows:
(a) The party claiming indemnification (the "Claimant")
shall promptly give notice to the party from which indemnification is claimed
(the "Indemnifying Party") of any claim, specifying the claim in reasonable
detail and the amount thereof, estimated in good faith, all with reasonable
particularity and containing a reference to the provisions of this Agreement in
respect of which such claim shall be made. If the claim relates to an action,
suit or proceeding filed by a third party against Claimant (a "Third Party
Claim"), such notice shall be given by Claimant promptly after written notice of
such action, suit or proceeding was given to Claimant; provided that the failure
to so notify the Indemnifying Party will not relieve the Indemnifying Party of
its obligations hereunder, except to the extent that such failure actually
prejudices the Indemnifying Party.
(b) With respect to any Third Party Claim, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the Claimant shall cooperate fully
with the Indemnifying Party, subject to reimbursement for actual out-of-pocket
expenses incurred by the Claimant as the result of a request by the Indemnifying
Party; provided, however, that the Indemnifying Party will not be entitled to
assume control of a defense if (i) the claim for indemnification relates to or
arises in connection with any criminal proceeding, action, indictment,
allegation or investigation against the Claimant, (ii) the Claimant reasonably
concludes in good faith that, in light of any actual or potential conflict of
interest, it would be inappropriate for legal counsel selected by the
Indemnifying Party to represent the Claimant, (iii) the Claimant reasonably
believes in good faith that an adverse determination with respect to the action,
lawsuit, investigation, proceeding or other claim giving rise to such claim for
indemnification would be materially detrimental to or materially injure
Claimant's reputation or future business prospects (or, in the case of a claim
by the Buyer, a Station's or a Seller's reputation or business prospects), or
(iv) upon petition by the Claimant, an appropriate court rules that the
Indemnifying Party failed or is failing to vigorously prosecute or defend such
claim.
(c) If the Indemnifying Party elects to assume control of
the defense of any Third Party Claim, the Claimant shall have the right to
participate in the defense of such claim at its own expense (except that the
reasonable fees and expenses of Claimant incurred prior to the date the
Indemnifying Party effectively assumes control of such defense will be borne by
the Indemnifying Party). If the Indemnifying Party does not elect to assume
control or otherwise participate in the defense of any Third Party Claim, then
the Claimant may defend through counsel of its own choosing and (so long as it
gives the Indemnifying Party at least ten (10) Business Days notice of the terms
of any proposed settlement thereof and permits the Indemnifying Party to then
undertake the defense thereof) may settle such claim, action or suit and may
recover from the Indemnifying Party the amount of such settlement or of any
judgment
33
and the costs and expenses of such defense. The Indemnifying Party shall not
compromise or settle any Third Party Claim without the prior written consent of
the Claimant, which consent will not be unreasonably withheld, conditioned or
delayed.
(d) Subject to the limitations set forth herein and without
expanding the total liability of Buyer or LIN hereunder, the indemnification
rights provided in Section 10.2 and Section 10.3 shall extend to the Related
Parties of any Claimant, except that for the purpose of the procedures set forth
in this Section 10.4, any indemnification claims by such Related Parties shall
be made by and through the Claimant.
(e) Each party will treat all payments made pursuant to
Sections 10.2 and 10.3 as adjustments to the Purchase Price for all purposes to
the extent required by Applicable Law.
10.5 Remedies Under Local Marketing Agreement. Nothing in this
Section 10 is intended to modify or amend the rights and remedies of the parties
under the Local Marketing Agreement.
SECTION 11 - MISCELLANEOUS
11.1 Fees and Expenses. Except as otherwise provided in this
Agreement, each party shall pay its own expenses incurred in connection with the
authorization, preparation, execution and performance of this Agreement,
including all fees and expenses of counsel, accountants, agents and
representatives; provided, however, that all filing fees and other charges
levied by any Governmental Authority in connection with the transactions
contemplated by this Agreement shall be paid one half by Buyer and one half by
LIN.
11.2 Notices. All notices, demands and requests required or permitted
to be given under the provisions of this Agreement shall be (i) in writing, (ii)
sent by facsimile (with receipt personally confirmed by telephone), delivered by
personal delivery or sent by commercial delivery service or certified mail,
return receipt requested, (iii) deemed to have been given on the date sent by
facsimile with receipt confirmed, the date of personal delivery or the date set
forth in the records of the delivery service or on the return receipt and (iv)
addressed as follows:
(a) If to LIN:
LIN Television Corporation
Four Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxx X. Parent, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
34
with a copy to
Xxxxxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 202-662-6291
(b) If to the Buyer:
Mission Broadcasting, Inc.
000 Xxx Xxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx, President
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to
Drinker Xxxxxx & Xxxxx LLP
0000 X Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 11.2.
11.3 Benefit and Binding Effect. No party hereto may assign this
Agreement without the prior written consent of the other party hereto; provided,
however, that Buyer shall be permitted to assign its right to purchase all or
any portion of the Assets provided (a) such assignment does not require the
consent of any Governmental Authority or result in any additional delay in the
Closing and (b) Buyer shall remain liable for all of Buyer's obligations under
this Agreement, including the payment of the Purchase Price. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and,
subject to the immediately foregoing sentence, their respective successors and
assigns.
11.4 Further Assurances. Subject to the terms and conditions of this
Agreement, from time to time prior to, at and after the Closing Date, each party
hereto will use commercially reasonable efforts to take, or cause to be taken,
all such actions and to do or cause to be done, all things necessary, proper or
advisable under Applicable Law to consummate and make effective the purchase and
sale contemplated by this Agreement and the consummation of the other
transactions contemplated hereby, including executing and delivering such
documents as the
35
other party may reasonably request in connection with the consummation of this
Agreement and the consummation of the other transactions contemplated hereby.
11.5 Governing Law. This Agreement and the rights and obligations of
the parties hereunder shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York without regard to its
conflict of law rules, as though entered into by New York residents and to be
performed entirely within the State of New York.
11.6 Waiver of Compliance; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any obligation,
representation, warranty, covenant, agreement or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure.
Whenever this Agreement requires or permits consent by or on behalf of any party
hereto, such consent shall be given in writing in a manner consistent with the
requirements for a waiver of compliance as set forth in this Section 11.6.
11.7 Specific Performance. LIN acknowledges that the Stations and
their businesses and operations are unique, and recognizes and affirms that in
the event of a breach of this Agreement by LIN, monetary damages may be
inadequate and the Buyer may have no adequate remedy at law. Accordingly, in the
event of any such breach, the Buyer or its successors or assigns may, in
addition to any other rights and remedies existing in their favor, enforce its
rights and LIN's obligations hereunder by an action or actions for specific
performance, injunctive or other relief, without any requirement of proving
actual damages or posting any bond or other security.
11.8 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other Persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by Applicable Law
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid or unenforceable, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the greatest extent possible.
11.9 Schedules, Exhibits and Other Agreements. The Schedules,
Exhibits and other agreements specifically referred to in and delivered pursuant
to, this Agreement are an integral part of it. Any disclosure that is made in
any of the Schedules delivered pursuant to this Agreement shall be deemed
responsive to any other applicable disclosure obligation hereunder.
11.10 Entire Agreement. This Agreement, the Schedules and Exhibits
hereto, the Local Marketing Agreement and all documents, certificates and other
documents to be delivered by the parties pursuant hereto, collectively represent
the entire understanding and agreement between Buyer and LIN with respect to the
subject matter of this Agreement. This Agreement supersedes
36
all prior negotiations between the parties and cannot be amended, supplemented
or changed except by an agreement in writing that is signed by the parties
hereto.
11.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document. Each party hereto will
receive by delivery or facsimile or other electronic transmission a duplicate
original of the Agreement executed by each party, and each party agrees that the
delivery of the Agreement by facsimile or other electronic transmission will be
deemed to be an original of the Agreement so transmitted.
[The Remainder Of This Page Is Intentionally Left Blank]
37
IN WITNESS WHEREOF, this Asset Purchase Agreement has been executed by
the duly authorized officers of Buyer and LIN as of the date first written
above.
LIN TELEVISION CORPORATION MISSION BROADCASTING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxx
--------------------------------- -------------------------------
Title: Vice President Title: Vice President
TVL BROADCASTING OF ABILENE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
ABILENE BROADCASTING, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
38
EXHIBIT A
DEFINED TERMS
Accounts Payable means the obligation of Operating Seller as of the Commencement
Time for amounts owing on open account to creditors of the Operating Seller for
goods or services acquired or used by the Stations prior to the Commencement
Time.
Accounts Receivable means the rights of Operating Seller as of the Commencement
Time to payment for the sale of advertising time and other goods and services by
the Stations prior to the Commencement Date, including all current assets of
Operating Seller that are goods or services receivable arising under any
Contract pursuant to which Operating Seller has sold or traded commercial air
time of either of the Stations in consideration for any property or services in
lieu of or in addition to cash.
Adjustment Report has the meaning ascribed thereto in Section 2.5(d).
Adjustment Settlement Date has the meaning ascribed thereto in Section 2.5(f).
Affiliate means, with respect to any Person, any other Person that, directly or
indirectly through one or more intermediaries, Controls, is Controlled by or is
under common Control with such Person.
Agreement has the meaning ascribed thereto in the preamble.
Allocation has the meaning ascribed thereto in Section 2.7.
Applicable Environmental Laws means any and all laws, statutes, regulations and
judicial interpretations thereof of the United States, of any state in which the
Stations' Assets, or any portion thereof, or the Stations' Business are located,
and of any other government or quasi-government authority having jurisdiction,
that relate to the prevention, abatement and elimination of pollution or
protection of the environment, including the federal Comprehensive Environmental
Response, Compensation, and Liability Act, the Resource Conservation and
Recovery Act, the Clean Water Act, the Clean Air Act, the Safe Drinking Water
Act, the Toxic Substances Control Act and the Hazardous Materials Transportation
Act, together with all state statutes serving any similar or related purposes,
as in effect on or prior to the date of this Agreement.
Applicable Law means any applicable constitution, treaty, statute, rule,
regulation, ordinance, order, directive, code, interpretation, judgment, decree,
injunction, writ, determination, award, permit, license, authorization,
directive, requirement, ruling or decision of, agreement with, or by a
Governmental Authority.
Assets means, collectively, the Stations' Assets and the FCC Licenses.
Assignment Application means the application to be filed with the FCC in order
to obtain the consent of the FCC to the assignment of the FCC Licenses from
License Seller to Buyer.
Assumed Contracts means (i) all Contracts listed on Schedule 3.11; (ii) all
other Contracts to which the Operating Seller or License Seller is a party
related to the Stations' Business to the extent not required to be listed on
Schedule 3.11 pursuant to the exceptions set forth in Section 3.11; (iii) any
Contracts entered into by Operating Seller between the date of this Agreement
and the Closing Date that Buyer agrees in writing to assume; and (iv) other
Contracts entered into by LIN between the date of this Agreement and the Closing
Date in compliance with Section 5.1; provided, however, that Assumed Contracts
shall in no event include Excluded Contracts or any Contracts that terminate
between the date of this Agreement and the Closing Date.
Assumed Liabilities has the meaning ascribed thereto in Section 2.6(vi).
Best Knowledge, Knowledge of or Known to means that nothing has come to the
attention of the Person to whom such knowledge is attributed that gives such
Person actual knowledge of the existence or absence of any material information
or fact bearing on the matter.
Business Day means any day excluding Saturdays, Sundays and any day that is a
legal holiday under the laws of the United States or is a day on which banking
institutions located in New York City, New York are authorized or required by
law or other governmental action to close.
Buyer has the meaning ascribed thereto in the preamble.
Claimant has the meaning ascribed thereto in Section 10.5(a).
Closing means the consummation of the purchase and sale of the Assets pursuant
to this Agreement in accordance with the provisions of Section 8.
Closing Adjustment Amount has the meaning ascribed thereto in Section 2.5(c).
Closing Adjustment Statement has the meaning ascribed thereto in Section 2.5(c).
Closing Date means the date on which the Closing occurs, as determined pursuant
to Section 8.1.
Code means the Internal Revenue Code of 1986, as amended.
Commencement Date has the meaning ascribed thereto in the Local Marketing
Agreement.
Commencement Time has the meaning ascribed thereto in the Local Marketing
Agreement.
Communications Act means the Communications Act of 1934, as amended.
Contracts means all contracts, leases, non-governmental licenses and other
agreements (including leases for personal or real property and employment
agreements), written or oral (including any amendments and other modifications
thereto) to which LIN Television, Operating Seller or License Seller is a party
or that are binding upon any of LIN Television, Operating Seller or License
Seller and that relate to or affect the Assets or the Stations' Business and are
in effect on the date of this Agreement (or that are entered into after the date
of this Agreement by LIN Television or either Seller with the consent of Buyer).
Exhibit A
Page 2
Control means having the power to direct the affairs of a Person by reason of
either (i) owning or controlling the right to vote a sufficient number of shares
of voting stock or other voting interest of such Person or (ii) having the right
to direct the general management of the affairs of such Person by contract or
otherwise.
Damages means all claims, demands, actions, causes of action, assessments,
losses, investigations, proceedings, damages, penalties, fines, costs, payments,
expenses and judgments, including interest and penalties and reasonable
attorneys' fees, disbursements and expenses.
Debt means, with respect to any Person, (i) any indebtedness for borrowed money
or deferred purchase price of property, whether or not evidenced by a note, bond
or other instrument, (ii) obligations as lessee under capital leases; (iii)
obligations secured by any Lien on any asset owned or held by such Person
whether or not such Person has assumed or become liable for the obligations
secured thereby; (iv) any obligation under any interest rate swap agreement (the
principal amount of such obligation shall be deemed to be the notional principal
amount on which such swap is based); and (v) obligations under direct or
indirect guarantees (including obligations (contingent or otherwise) to assure a
creditor against loss in respect of) indebtedness or obligations of the kinds
referred to in clauses (i), (ii), (iii) or (iv) above, provided that Debt shall
not include obligations in respect of any accounts payable that are incurred in
the ordinary course of the Person's business and are not delinquent or are being
contested in good faith by appropriate proceedings.
Deeds has the meaning ascribed thereto in Section 8.3(a)(iii).
Effective Time means 12:01 a.m., Abilene, Texas time, on the Closing Date.
Employees has the meaning ascribed thereto in Section 3.17(a).
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
Excluded Assets shall have the meaning ascribed thereto in Section 2.2.
Excluded Contracts shall have the meaning ascribed thereto in Section 2.2(e).
FCC means the Federal Communications Commission.
FCC Consent means action by the FCC granting its consent to the Assignment
Application and the consummation of the transactions contemplated thereby.
FCC Licenses means all licenses, permits, construction permits and other
authorizations issued by or pending before the FCC necessary or useful for the
operation of the Stations or the conduct of the Stations' Business (including
the rights in and to the Stations' call signs).
Final Adjustments has the meaning ascribed thereto in Section 2.5(e).
Final Adjustment Statement has the meaning ascribed thereto in Section 2.5(f).
Exhibit A
Page 3
Final Order means an action by the FCC or other regulatory authority having
jurisdiction (i) with respect to which action no timely request for stay, motion
or petition for reconsideration or rehearing, application or request for review
or notice of appeal or other judicial petition for review is pending and (ii) as
to which the time for filing any such request, motion, petition, application,
appeal or notice and for the entry of orders staying, reconsidering or reviewing
on the FCC's or such other regulatory authority's own motion has expired.
Governmental Authority means any government, any governmental entity,
department, commission, board, agency or instrumentality and any court, tribunal
or judicial or arbitral body, whether federal, state or local.
Hazardous Material means any substance now or hereafter designated pursuant to
Section 307(a) and 311(b)(2)(A) of the federal Clean Water Act, 33 USCA Sections
1317(a), 1321(b)(2)(A), Section 112 of the federal Clean Air Act, 42 USCA
Section 3412, Section 3001 of the federal Resource Conversation and Recovery
Act, 42 USCA Section 6921, Section 7 of the federal Toxic Substances Control
Act, 15 USCA Section 2606, or Section 101(14) and Section 102 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 USCA
Sections 9601(14), 9602, as amended by the Superfund Amendments and
Reorganization Act of 1986.
Indemnifying Party has the meaning ascribed thereto in Section 10.5(a).
Independent Auditor has the meaning ascribed thereto in Section 2.5(e).
Initial Payment has the meaning ascribed thereto in Section 2.3(a).
Intangibles means all copyrights, trademarks, trade names, service marks,
service names, licenses, computer programs and computer license interests to the
extent owned by and transferable by Operating Seller, patents, permits, jingles,
proprietary information, technical information and data and other similar
intangible property rights and interests (and any goodwill associated with any
of the foregoing) applied for, issued to or owned by Operating Seller or under
which Operating Seller is licensed or franchised and that are used or useful in
the Stations' Business, together with any additions thereto between the date of
this Agreement and the Closing Date.
License Seller has the meaning ascribed thereto in the preamble.
Lien means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest, restriction or encumbrance of any kind, whether statutory or
otherwise, in respect of such asset.
LIN has the meaning ascribed thereto in the preamble.
LIN Television has the meaning ascribed thereto in the preamble.
LMA Payment has the meaning ascribed thereto in Section 9.2(b)(iii).
Local Marketing Agreement has the meaning ascribed thereto in the recitals.
Exhibit A
Page 4
Material Adverse Effect means (i) an adverse effect that is material to the
Stations' Business and the Assets, taken as a whole, financially or otherwise,
(ii) an effect that creates a material limitation on the ability of the Buyer to
conduct the business of the Stations as conducted immediately prior to the
Closing or (iii) an effect that creates a limitation in the ability of Buyer to
acquire valid and marketable title to the Assets free and clear of all Liens.
Operating Seller has the meaning ascribed thereto in the preamble.
Permitted Liens means (i) liens for Taxes not yet due and payable; (ii)
landlord's liens and liens for property Taxes not delinquent; (iii) inchoate
materialmens', mechanics', carriers', warehousemen's, landlords', workmen's,
repairmen's, employees' or other like Liens arising in the ordinary course of
business and for which payment is not overdue; (iv) Liens incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance, social security and other like laws; (v)
restrictions or rights granted to Governmental Authorities under Applicable Law;
(vi) such imperfections in title and easements and encumbrances, if any, as are
not substantial in character, amount, or extent and do not materially detract
from the value, or interfere with the present use of the property subject
thereto or affected thereby, or materially impair the conduct of the Stations'
Business or the operation of the Stations; and (vii) any Liens disclosed in
Schedule 3.5 as indicated with a double asterisk.
Person means an individual, corporation, association, partnership, joint
venture, trust, estate, limited liability company, limited liability partnership
or other entity or organization.
Preliminary Adjustment Amount has the meaning ascribed thereto in Section
2.5(b).
Preliminary Adjustment Statement has the meaning ascribed thereto in Section
2.5(a).
Program Contracts has the meaning ascribed thereto in Section 2.4(b).
Program Payments has the meaning ascribed thereto in Section 2.4(b)(i).
Program Rights means all rights of Operating Seller existing as of the date of
this Agreement to broadcast television programs or shows as part of the
Stations' programming and for which Operating Seller is or will be obligated to
compensate the vendor of such rights, including all film and barter agreements.
Purchase Price has the meaning ascribed thereto in Section 2.3(b).
Real Property means the real property owned in fee simple or leasehold by
Operating Seller more particularly described on Schedule 3.8, and all buildings,
improvements and fixtures thereon, all strips and gores, rights of way,
easements, and strips and gores privileges and appurtenances pertaining thereto
and any right, title and interest of Operating Seller in and to any street
adjoining any portion of the Real Property, together with any additions thereto
between the date of this Agreement and the Closing Date.
Related Party has the meaning ascribed thereto in Section 9.2(a)(i).
Exhibit A
Page 5
Required Consents means those consents listed on Schedule 3.3 and marked with a
double asterisk.
Retained Liabilities has the meaning ascribed thereto in Section 2.6(b).
Seller has the meaning ascribed thereto in the Preamble.
Stations has the meaning ascribed thereto in the recitals.
Stations' Assets has the meaning ascribed thereto in Section 2.1(a).
Stations' Business means the businesses currently conducted by Operating Seller
and License Seller with respect to the Stations, taken as a whole, including the
Assets and operations thereof.
Tangible Personal Property means all machinery, equipment, tools, vehicles,
furniture, office equipment, plant, inventory, spare parts and other tangible
personal property owned or held by Operating Seller that is used or useful in
the Stations' Business, together with any additions thereto between the date of
this Agreement and the Closing Date.
Tax means any federal, state, local or foreign income, gross receipts, windfall
profits, severance, property, production, sales, use, license, excise,
franchise, capital, transfer, employment, withholding or other tax or
governmental assessment, together with any interest, additions or penalties with
respect thereto and any interest in respect of such additions or penalties.
Tax Return means any tax return, declaration of estimated tax, tax report or
other tax statement or any other similar filing required to be submitted by LIN
relating to the Stations to any governmental authority with respect to any Tax.
Termination Date means December 31, 2003.
Termination Time has the meaning ascribed thereto in the Local Marketing
Agreement.
Third Party Claim has the meaning ascribed thereto in Section 10.4(a).
Title Insurer has the meaning ascribed thereto in Section 6.8(a).
Transferred Employee has the meaning ascribed thereto in Section 5.10.
TVL Acquisition Date means May 3, 2002.
WARN Act means the Worker Adjustment and Retraining Notification Act.
Exhibit A
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