UNWIND AGREEMENT
This unwind agreement (the "Unwind Agreement"), is made and entered
into as of this 21st day of March, 2000, by and between Benedek Broadcasting
Corporation ("BBC"), Benedek License Corporation ("BLC") (collectively,
"Benedek") and ICA Broadcasting I, Ltd. ("Purchaser"). Capitalized terms used
herein without definition have the meaning provided therefor in the Purchase
Agreement (as defined herein).
WITNESSETH:
WHEREAS, Purchaser and Benedek entered into an Asset Purchase
Agreement, dated as of December 15, 1999, (the "Purchase Agreement") pursuant to
which Benedek agreed to transfer, assign, convey and deliver to Purchaser, and
Purchaser agreed to acquire and accept, subject to the approval of the FCC,
among other things, all of the right, title and interest of Benedek in and to
the Assets, which include, among other things, the Station Licenses;
WHEREAS, the FCC Consent has been granted;
WHEREAS, Benedek and Purchaser desire to consummate the Closing prior
to the date by which the FCC Consent shall become a Final Order; and
WHEREAS, Benedek and Purchaser have agreed to be governed by the terms
of this Unwind Agreement in the unlikely event that the FCC Consent should fail
to become a Final Order.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and adequacy
of which is
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
covenant and agree as follows:
1. Appeal Period.
▇. ▇▇▇▇▇▇▇ and Purchaser recognize that there is a thirty-day
period after the FCC publishes the FCC Consent during which an aggrieved party
can appeal from or seek reconsideration by the FCC of the FCC Consent (the
"Appeal Period"). The Appeal Period will expire on April 15, 2000. Despite the
opportunity for an appeal to be filed, the parties have agreed to consummate the
Closing prior to expiration of the Appeal Period.
▇. ▇▇▇▇▇▇▇ and Purchaser further recognize that there is a
forty-day period after the FCC publishes the FCC Consent during which the FCC on
its own motion can reconsider the FCC Consent (the "Reconsideration Period").
The Reconsideration Period will expire on April 25, 2000. Despite the
possibility that the FCC could seek to reconsider the FCC Consent on its own
motion, the parties have agreed to consummate the Closing prior to the
expiration of the Reconsideration Period.
▇. ▇▇▇▇▇▇▇ and Purchaser agree that at their own cost and
expense they will cooperate in the defense of any appeal filed or
reconsideration taken which challenges Benedek's right to assign the Assets,
including, without limitation, the Station Licenses to Purchaser or Purchaser's
right to acquire and accept such assignment. Additionally, Benedek and Purchaser
agree that neither party shall take any action which would impede the FCC
Consent from becoming a Final Order.
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▇. ▇▇▇▇▇▇▇ and Purchaser agree that if, as a result of an appeal filed
within the Appeal Period or as a result of the action of the FCC on its own
motion within the Reconsideration Period, the FCC Consent shall be revoked by
the FCC or an appeals court having jurisdiction, and the revocation shall have
become final and no further appeal is possible, Benedek and Purchaser will
immediately do any and all things, execute and deliver any and all writings,
including preparation and execution of FCC applications, and take any and all
steps which may be required to restore to each of them their respective rights,
title and interests in and to the Assets and the consideration paid therefor
enjoyed by each of them immediately prior to the consummation of the Closing.
Benedek and Purchaser agree that all of the Assets assigned by Benedek to
Purchaser in connection with the consummation of the Closing shall be reassigned
to Benedek by Purchaser, and all consideration paid to Benedek by Purchaser for
the Assets shall be returned by Benedek to Purchaser.
2. Obligations in the Event of an Appeal. Benedek and Purchaser agree
that Purchaser shall have the right to control the defense of any appeal filed
which challenges Purchaser's qualifications to hold the Station Licenses.
Benedek and Purchaser agree that Benedek shall have the right to control the
defense of any appeal filed which challenges Benedek's qualifications to assign
the Station Licenses to Purchaser. The parties will jointly control the defense
of any appeal which challenges both parties' qualifications. Each party will
diligently take all steps that it deems necessary, proper or desirable to
expedite the resolution of an appeal and to obtain a Final Order approving the
transfer of the Station Licenses to Purchaser. The parties will consult with
each other in formulating the manner in which to defend an appeal. The parties
will cooperate with
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each other in preparing and executing any documents necessary to defend the
qualifications of either of them during an appeal, such cooperation to include
the full and complete disclosure to the other party of all facts known to such
party regarding the operations of the Station and the Assets. However, neither
party will take any steps, without the written consent of the other party, to
file separate documents for purposes of defending an appeal or initiate contact
with a third-party filing an appeal, unless such action is required by law (in
which event, the acting party will promptly notify the other party of such
action and provide to such other party copies of all documents and instruments
delivered in connection with such action). Each party will make its respective
FCC counsel available to participate in defending an appeal.
3. Cost of Appeal and Settlement. Benedek shall pay the full cost of
defending or settling any appeal that alleges that Benedek was not qualified to
assign the Station Licenses to Purchaser. Purchaser shall pay the full cost of
defending or settling any appeal alleging that Purchaser is not qualified to
hold the Station Licenses. Purchaser and Benedek shall share equally in the cost
of defending or settling an appeal which alleges that Benedek was not qualified
to assign the Station Licenses to Purchaser and Purchaser is not qualified to
hold the Station Licenses. Such costs so shared shall not include any overhead
expenses or charges for time of a party's own employees or use of a party's own
equipment.
4. Operation of Station During Appeal Period. So long as this Unwind
Agreement is in effect, Purchaser will operate the Station in a normal and
prudent manner and will defend the Station in any action challenging the
Purchaser's operation of the Station which is brought before the FCC. Purchaser
will use commercially reasonable
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efforts to preserve the business and goodwill of the Station. If the Assets are
assigned back to Benedek pursuant to this Unwind Agreement, the tangible
personal property shall be delivered in the same condition as received,
reasonable wear and tear excepted. Benedek further acknowledges that it may be
impossible to restore the status quo ante completely as a result of the passage
of time and the resultant consumption of certain of the Assets acquired by
Purchaser. During this period of operation of the Station by Purchaser, the
Station shall be deemed to have been operated for the benefit of Purchaser and
Purchaser shall be entitled to receive and retain all monies earned from the
operation of the Station until assignment of the Assets back to Benedek.
Further, Purchaser shall be obligated to pay and shall pay all of the
obligations incurred by Purchaser in the operation of the Station during the
same time period. Purchaser shall be entitled to collect and retain all proceeds
of any account receivable generated during the same time period. So long as this
Unwind Agreement is in effect, if the repair or replacement of equipment
necessary for the continued operation of the Station is necessary, reasonable
wear and tear excepted, Benedek shall, on the date of assignment of the Assets
back to Benedek, reimburse Purchaser for all costs associated with such
equipment to the extent Benedek receives a benefit therefrom.
5. Notices. Any and all notices or other communications or deliveries
required or permitted to be given or made pursuant to any of the provisions of
this Unwind Agreement shall be deemed to have been duly given or made for all
purposes if sent by certified or registered mail, return receipt requested and
postage prepaid, hand delivery, overnight delivery service or telephone
facsimile:
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(a) If to Purchaser, to:
c/o ICA Broadcasting I, Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, President
with a copy to (that shall not constitute Notice):
Shafer, Davis, Ashley, ▇'▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Nations Bank Building
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
(b) If to Benedek c/o Benedek Broadcasting Corporation,
to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
With a copy to (which shall not constitute Notice):
Shack & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
or at such other address as any party may specify by notice given to the other
party in accordance with this Section 5. The date of the giving of any notice
sent by mail shall be three business days following the date of the posting of
the mail, if delivered in person, the date delivered in person or the next
business day following delivery to an overnight delivery service or the date
sent by telephone facsimile.
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6. Survival. This Unwind Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
7. Governing Law. This Unwind Agreement shall be governed, interpreted
and construed in accordance with the laws of the State of Texas applicable to
contracts to be performed entirely within that State. Should any clause, section
or part of this Unwind Agreement be held or declared to be void or illegal for
any reason, all other clauses, sections or parts of this Unwind Agreement which
can be effected without such illegal clause, section or part shall nevertheless
continue in full force and effect.
8. Termination of Unwind Agreement. Upon such date as the FCC Consent
shall have become a Final Order, this Unwind Agreement shall terminate, and any
obligations or liabilities imposed upon Benedek or Purchaser pursuant to this
Unwind Agreement shall terminate.
9. Purchase Agreement In Effect. Except to the extent required by the
express provisions of this Unwind Agreement, the Purchase Agreement shall remain
in full force and effect according to its terms.
10. Amendment. This Unwind Agreement, together with the Purchase
Agreement, contain all of the terms agreed upon with respect to the subject
matter hereof and supersede all prior agreements and understandings among the
parties with respect thereto; provided, however, to the extent, any of the terms
of this Unwind Agreement are inconsistent with the Purchase Agreement, the
Purchase Agreement shall be controlling. This Unwind Agreement may not be
altered or amended except by an instrument in writing signed by the party
against whom enforcement of any such change is sought.
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11. Counterpart. This Unwind Agreement may be signed by any number of
counterparts with the same effect as if the signature on each such counterpart
were on the same instrument.
IN WITNESS WHEREOF, the parties have caused this Unwind Agreement to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
ICA BROADCASTING I, LTD.
By: ICA BROADCASTING, LLC, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
BENEDEK BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President and Chief Financial
Officer
BENEDEK LICENSE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President and Chief Financial
Officer
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