EXHIBIT 10.27
ASSET EXCHANGE AGREEMENT
by and among
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STC BROADCASTING, INC.,
STC BROADCASTING OF VERMONT, INC.,
STC LICENSE COMPANY,
STC BROADCASTING OF VERMONT SUBSIDIARY, INC.
as STC
and
HEARST-ARGYLE STATIONS, INC.
as HAT
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February 18, 1998
INDEX
TAB DOCUMENTS
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1. Asset Exchange Agreement
2. Exhibits to Asset Exchange Agreement
Exhibit A: ▇▇▇▇ of Sale and Assignment of Assets
Exhibit B: Assignment of FCC Licenses
Exhibit C: Assignment of Contracts and Leases
Exhibit D: Assumption Agreement
Exhibit E: Credit Facilities
3. STC Disclosure Schedules
4. HAT Guaranty
ASSET EXCHANGE AGREEMENT
BY AND AMONG
STC BROADCASTING, INC.,
STC BROADCASTING OF VERMONT, INC.,
STC LICENSE COMPANY
STC BROADCASTING OF VERMONT SUBSIDIARY, INC.
AND
HEARST-ARGYLE STATIONS, INC.
Dated as of February 18, 1998
TABLE OF CONTENTS
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Page
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ARTICLE 1. DEFINITIONS AND REFERENCES......................................3
ARTICLE 2. EXCHANGE OF ASSETS..............................................3
2.1. Transfer by the STC Exchange Entities..............................3
2.2. Transfer by HAT....................................................4
2.3. Description of the Assets..........................................4
2.3.1. FCC Licenses..............................................4
2.3.2. Real and Leased Property Interests........................4
2.3.3. Tangible Personal Property................................5
2.3.4. Intellectual Property.....................................5
2.3.5. Program Contracts.........................................5
2.3.6. Trade-out Agreements......................................6
2.3.7. Broadcast Time Sales Agreement............................6
2.3.8. Network Affiliation Agreements............................6
2.3.9. Operating Contracts.......................................6
2.3.10. Vehicles.................................................6
2.3.11. Files and Records........................................7
2.3.12. Auxiliary Facilities.....................................7
2.3.13. Permits and Licenses.....................................7
2.3.14. Goodwill.................................................7
2.3.15. Certain Accounts Receivable..............................7
2.3.16. Rights Under the ▇▇▇▇▇▇▇▇ Documents......................7
2.3.17. Certain Cash.............................................8
2.4. Excluded Assets....................................................8
2.4.1. Cash......................................................8
2.4.2. Certain Accounts Receivable...............................8
2.4.3. Personal Property Disposed Of.............................8
2.4.4. Insurance.................................................8
2.4.5. Employee Plans and Assets.................................9
2.4.6. Right to Tax Refunds......................................9
2.4.7. Certain Books and Records.................................9
2.4.8. Third-Party Claims........................................9
2.4.9. Rights Under this Agreement...............................9
2.4.10. Rights Under the HAT Merger Agreement....................9
2.4.11. Names....................................................10
2.4.12. Deposit and Prepaid Expenses.............................10
2.4.13. Shared Contracts.........................................10
2.4.14. Labor Union Contracts....................................10
2.4.15. Miscellaneous Excluded Assets............................10
TABLE OF CONTENTS (continued)
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2.4.16. Affiliated Transactions..................................10
2.4.17. Assets of Other Television Stations......................11
2.5. Exchange of Assets.................................................11
2.6. Proration Amounts..................................................11
2.7. Accounts Receivable................................................13
2.8. Allocation of Asset Values.........................................15
2.9. Assumption of Liabilities by STC...................................15
2.10. Assumption of Liabilities by HAT..................................16
2.11. Matters Related to the Burlington Stations........................16
2.12. Matters Related to the Providence Stations........................18
2.13. Financing of Burlington Stations..................................19
2.14. Working Capital...................................................19
ARTICLE 3. REPRESENTATIONS AND WARRANTIES BY THE STC PARTIES...............20
3.1. Organization and Standing..........................................20
3.2. Authorization......................................................20
3.3. Compliance with Laws...............................................21
3.4. Consents and Approvals; No Conflicts...............................21
3.5. Financial Statements; Undisclosed Liabilities......................21
3.6. Absence of Certain Changes or Events...............................22
3.7. Absence of Litigation..............................................23
3.8. Assets.............................................................23
3.9. FCC Matters........................................................23
3.10. Real Property.....................................................24
3.11. Intellectual Property.............................................25
3.12. Station Contracts.................................................26
3.13. Taxes.............................................................26
3.14. Employee Benefit Plans............................................27
3.15. Labor Relations...................................................29
3.16. Environmental Matters.............................................29
3.17. Insurance.........................................................30
3.18. Reports...........................................................30
3.19. Affiliated Transactions...........................................31
3.20. Special Purpose...................................................31
3.21. Availability of Funds.............................................31
ARTICLE 4. REPRESENTATIONS AND WARRANTIES BY HAT...........................31
4.1. Organization and Standing..........................................31
4.2. Authorization......................................................32
4.3. Compliance with Laws...............................................32
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TABLE OF CONTENTS (continued)
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4.4. Consents and Approvals; No Conflicts...............................32
4.5. Financial Statements; Undisclosed Liabilities......................33
4.6. Absence of Certain Changes or Events...............................34
4.7. Absence of Litigation..............................................34
4.8. Assets.............................................................34
4.9. FCC Matters........................................................35
4.10. Real Property.....................................................36
4.11. Intellectual Property.............................................37
4.12. Station Contracts.................................................37
4.13. Taxes.............................................................37
4.14. Employee Benefit Plans............................................38
4.15. Labor Relations...................................................40
4.16. Environmental Matters.............................................40
4.17. Insurance.........................................................41
4.18. Reports...........................................................41
4.19. Affiliated Transactions...........................................42
ARTICLE 5. PRE-CLOSING FILINGS.............................................42
5.1. Applications for FCC Consent.......................................42
5.2. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇..................................................42
5.3. Non-Required Actions...............................................43
ARTICLE 6. COVENANTS AND AGREEMENTS OF THE PARTIES.........................43
6.1. Negative Covenants.................................................43
6.1.1. Dispositions; Mergers.....................................43
6.1.2. Accounting Principles and Practices.......................43
6.1.3. Trade-out Agreements......................................43
6.1.4. Broadcast Time Sales Agreements...........................44
6.1.5. Network Affiliation Agreements and TBAs...................44
6.1.6. Additional Agreements.....................................44
6.1.7. Breaches..................................................44
6.1.8. Employee Matters..........................................44
6.1.9. Actions Affecting FCC Licenses............................45
6.1.10. Programming..............................................45
6.1.11. Encumbrances.............................................45
6.1.12. Transactions With Affiliates.............................45
6.2. Affirmative Covenants..............................................45
6.2.1. Preserve Existence........................................45
6.2.2. Normal Operations.........................................45
6.2.3. Maintain FCC Licenses.....................................46
6.2.4. Network Affiliation.......................................46
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TABLE OF CONTENTS (continued)
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6.2.5. Station Contracts.........................................46
6.2.6. Taxes.....................................................46
6.2.7. Access....................................................46
6.2.8. Insurance.................................................47
6.2.9. Financial Statements......................................47
6.2.10. Consents.................................................48
6.2.11. Corporate Action.........................................48
6.2.12. Environmental Audit......................................49
6.2.13. ▇▇▇▇▇▇▇▇ Agreement.......................................49
6.3. Confidentiality....................................................49
6.4. Collection of Receivables..........................................50
6.5. Possession and Control.............................................50
6.6. Risk of Loss.......................................................51
6.7. Public Announcements...............................................51
6.8. ▇▇▇▇▇▇▇▇ Employee Matters..........................................51
6.9. Other Employee Matters.............................................53
6.10. Disclosure Schedules..............................................54
6.11. Bulk Sales Laws...................................................55
6.12. Tax Matters.......................................................55
6.13. Preservation of Books and Records.................................57
6.14. Affiliated Transactions...........................................57
6.15. Clear Channel Agreements..........................................57
6.16. ▇▇▇▇▇▇▇▇ Agreement................................................58
6.17. Environmental Remediation.........................................58
6.18. Certain FCC Matters...............................................58
ARTICLE 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF STC......................58
7.1. Closing Under the ▇▇▇▇▇▇▇▇ Agreement...............................59
7.2. Representations and Covenants......................................59
7.3. Delivery of Documents..............................................59
7.4. Consents...........................................................59
7.5. ABC Affiliation Agreement..........................................59
7.6. FCC Order..........................................................60
7.7. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇..................................................60
7.8. Legal Proceedings..................................................60
ARTICLE 8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF HAT..................60
8.1. Closing Under the ▇▇▇▇▇▇▇▇ Agreement...............................60
8.2. Representations and Covenants......................................61
8.3. Delivery of Documents..............................................61
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TABLE OF CONTENTS (continued)
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8.4. Consents...........................................................61
8.5. FCC Order..........................................................61
8.6. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇..................................................61
8.7. Legal Proceedings..................................................62
8.8. LKE Facilitation Transactions......................................62
ARTICLE 9. CLOSING.........................................................62
9.1. Closing. ..........................................................62
9.2. Time and Place of Closing..........................................62
9.3. Delivery by STC at the Closing.....................................62
9.3.1. Agreements and Instruments................................62
9.3.2. Consents..................................................63
9.3.3. Certified Resolutions.....................................63
9.3.4. Officers' Certificates....................................63
9.3.5. Good Standing Certificates................................63
9.4. Delivery by HAT at the Closing.....................................64
9.4.1. Agreements and Instruments................................64
9.4.2. Consents..................................................64
9.4.3. Certified Resolutions.....................................64
9.4.4. Officers' Certificates....................................64
9.4.5. Good Standing Certificates................................65
ARTICLE 10. SURVIVAL; INDEMNIFICATION......................................65
10.1. Survival of Representations.......................................65
10.2. Indemnification by STC............................................66
10.3. Indemnification by HAT............................................66
10.4. Limitations on Indemnification....................................67
10.5. Conditions of Indemnification.....................................67
10.6. Special Tax Indemnification by HAT................................68
10.7. Cure of Breach....................................................70
ARTICLE 11. TERMINATION....................................................70
11.1. Termination of Exchange by the Parties............................70
11.2. Termination of Agreement..........................................72
11.3. Effect of Termination.............................................72
ARTICLE 12. GENERAL PROVISIONS.............................................73
12.1. Additional Actions, Documents and Information.....................73
12.2. Brokers...........................................................73
12.3. Expenses and Taxes................................................74
12.4. Notices...........................................................75
12.5. Waiver. ..........................................................76
12.6. Benefit and Assignment............................................76
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TABLE OF CONTENTS (continued)
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12.7. Entire Agreement; Amendment.......................................77
12.8. Severability......................................................77
12.9. Headings..........................................................77
12.10. Governing Law....................................................77
12.11. Signature in Counterparts........................................78
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SCHEDULES
Schedule 2.3.1 FCC Licenses
Schedule 2.3.2 Real Property Interests
Schedule 2.3.3 Tangible Personal Property
Schedule 2.3.4 Intellectual Property
Schedule 2.3.5 Program Contracts
Schedule 2.3.6 Trade-out Agreements
Schedule 2.3.8 Network Affiliation Agreements
Schedule 2.3.9 Other Operating Contracts
Schedule 2.3.10 Vehicles
Schedule 2.3.12 Auxiliary Facilities
Schedule 2.3.14 Accounts Receivable
Schedule 2.4.13 Shared Contracts
Schedule 2.4.14 Labor Union Contracts
Schedule 2.4.15 Excluded Assets
Schedule 2.4.16 Affiliated Transactions
Schedule 2.12 WNAC/WPRI Assets
Schedule 3.4 STC Consents
Schedule 3.5 STC Financial Statements
Schedule 3.6 STC Absence of Certain Changes or Events
Schedule 3.7 STC Litigation
Schedule 3.8 STC Encumbrances on Assets
Schedule 3.9 STC FCC Matters
Schedule 3.10 STC Real Property and Encumbrances
Schedule 3.14 STC Employee Benefit Plans
Schedule 3.15 STC Employee Matters
Schedule 3.16 STC Environmental Matters
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Schedule 3.17 STC Insurance
Schedule 3.19 STC Affiliated Transactions
Schedule 4.4 HAT Consents
Schedule 4.6 HAT Absence of Certain Changes or Events
Schedule 4.7 HAT Litigation
Schedule 4.8 HAT Encumbrances on Assets
Schedule 4.9 HAT FCC Matters
Schedule 4.10 HAT Real Property and Encumbrances
Schedule 4.14 HAT Employee Benefit Plans
Schedule 4.15 HAT Employee Matters
Schedule 4.16 HAT Environmental Matters
Schedule 4.17 HAT Insurance
Schedule 4.19 HAT Affiliated Transactions
Schedule 12.2 Brokers
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EXHIBITS
EXHIBIT A Form of ▇▇▇▇ of Sale and Assignment of Assets
EXHIBIT B Form of Assignment of FCC Licenses
EXHIBIT C Form of Assignment of Contracts and Leases
EXHIBIT D Form of Assumption Agreement
EXHIBIT E Form of Credit Facilities
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EXHIBIT 10.27
ASSET EXCHANGE AGREEMENT
THIS ASSET EXCHANGE AGREEMENT (this "Agreement") is entered into as of
this 18th day of February, 1998, by and among STC BROADCASTING, INC., a Delaware
corporation ("STC Broadcasting"), STC BROADCASTING OF VERMONT, INC., a Delaware
corporation and a wholly-owned subsidiary of STC Broadcasting ("STCBV"), STC
LICENSE COMPANY, a Delaware corporation and wholly-owned subsidiary of STC
Broadcasting ("STC License Company"), and STC BROADCASTING OF VERMONT
SUBSIDIARY, INC., a Delaware corporation and wholly-owned subsidiary of STCBV
("STCBV Sub") (STC Broadcasting, STCBV, STC License Company and STCBV Sub are
sometimes individually referred to herein as a "STC Party" and collectively
referred to herein as "STC" or the "STC Parties"), and HEARST-ARGYLE STATIONS,
INC., a Nevada corporation ("HAT").
WHEREAS, pursuant to an Asset Purchase Agreement dated as of July 16,
1997 (the "Heritage Agreement"), by and among ▇▇▇▇▇▇▇▇ Broadcast Group, Inc., a
Maryland corporation ("▇▇▇▇▇▇▇▇ Parent"), and certain indirect subsidiaries (the
"Heritage Subsidiaries") of Heritage Media Corporation, a Delaware corporation
("HMC"), ▇▇▇▇▇▇▇▇ has agreed to buy, and the Heritage Subsidiaries have agreed
to sell, certain broadcast stations owned, controlled or operated by the
Heritage Subsidiaries, including (i) television broadcast station WPTZ (TV),
Channel ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("▇▇▇▇"); (ii) certain assets and rights
relating to television broadcast station WFFF-TV, Channel 44, Burlington,
Vermont ("WFFF"); and (iii) television broadcast station WNNE (TV), Channel ▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("▇▇▇▇") (WPTZ, WFFF and WNNE are collectively referred to
herein as the "Burlington Stations");
WHEREAS, STCBV and Tuscaloosa Broadcasting, Inc., a Maryland
corporation ("Tuscaloosa"), WPTZ Licensee, Inc., a Maryland corporation ("WPTZ
Licensee"), and WNNE Licensee, Inc., a Maryland corporation ("WNNE Licensee")
(Tuscaloosa, WPTZ Licensee and WNNE Licensee are collectively referred to herein
as "▇▇▇▇▇▇▇▇") have as of February 3, 1998, entered into an Asset Purchase
Agreement (the "▇▇▇▇▇▇▇▇ Agreement") pursuant to which STCBV has agreed to buy,
and ▇▇▇▇▇▇▇▇ has agreed to sell, the assets of the Burlington Stations, all
subject to the terms described in the ▇▇▇▇▇▇▇▇ Agreement;
WHEREAS, prior to any closing under the ▇▇▇▇▇▇▇▇ Agreement, STCBV
intends to assign to STCBV Sub all of STCBV's rights under the ▇▇▇▇▇▇▇▇
Documents to acquire the Assets (as defined in the ▇▇▇▇▇▇▇▇ Agreement);
WHEREAS, STC License Company is the licensee of television broadcast
station KSBW (TV), Channel 8, Salinas, California ("KSBW"), pursuant
to certain authorizations issued by the FCC, and STC Broadcasting operates KSBW
and owns or leases certain assets used in connection with the operation of KSBW
(KSBW, WPTZ and WNNE are collectively referred to herein as the "STC Stations");
WHEREAS, HAT is the licensee of television broadcast station WDTN
(TV), Channel 2, Dayton, Ohio ("WDTN"), pursuant to certain authorizations
issued by the FCC, and HAT operates WDTN and owns or leases certain assets used
in connection with the operation of WDTN;
WHEREAS, HAT (as successor-in-interest to WNAC Argyle Television,
Inc., a Nevada corporation ("WNAC Argyle")) is the licensee of television
broadcast station WNAC (TV), Channel ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇"),
pursuant to certain authorizations issued by the FCC (WDTN and WNAC are
collectively referred to herein as the "HAT Stations") (the STC Stations and the
HAT Stations are sometimes each individually referred to herein as a "Station");
WHEREAS, Clear Channel Television License, Inc. is the licensee of
WPRI-TV, Channel 12, Providence, Rhode Island ("WPRI"), pursuant to certain
authorizations issued by the FCC;
WHEREAS, pursuant to a Joint Marketing and Programming Agreement dated
as of June 10, 1996, and a Reciprocal Right of First Refusal dated as of June
10, 1996 (collectively, the "Clear Channel Agreements"), both between Clear
Channel Television, Inc. ("Clear Channel") and HAT (as successor-in-interest to
WNAC Argyle and Providence Argyle Television, Inc., a Delaware corporation),
each of HAT and Clear Channel have certain rights and obligations regarding WNAC
and WPRI;
WHEREAS, STC desires to assign, transfer and convey to HAT all of
STC's right, title and interest in the assets of the STC Stations, and HAT
desires to assign, transfer and convey to STC all of HAT's right, title and
interest in the Clear Channel Agreements and the assets of the HAT Stations, all
subject to the terms and conditions described in this Agreement;
WHEREAS, the parties hereto intend that certain of the conveyances
contemplated by this Agreement shall constitute a "like-kind exchange" (the
"Like-Kind Exchange") and that certain of the transactions hereunder shall
qualify as such for nonrecognition of income under Section 1031 of the Code; and
WHEREAS, in order to facilitate the Like-Kind Exchange, immediately
prior to or at the Closing hereunder, STC shall take such actions in order that
all of the FCC Licenses of the STC Stations shall be held by STC License Company
and all other Assets of STC shall be held by STC Broadcasting as
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contemplated by Section 8.8 (after the consummation of any such actions, "STC
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Broadcasting and "STC License Company" are sometimes referred to herein as the
"STC Exchange Entities").
WHEREAS, pursuant to a guaranty given as of the date hereof by Hearst-
Argyle Television, Inc., a Delaware corporation ("H-A"), H-A has guaranteed to
STC the prompt and complete performance of the obligations of HAT arising under
or pursuant to this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
Capitalized terms used herein without definition shall have the
respective meanings assigned thereto in Annex I attached hereto and incorporated
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herein for all purposes of this Agreement (such definitions to be equally
applicable to both the singular and plural forms of the terms defined). Unless
otherwise specified, all references herein to "Articles" or "Sections" are to
Articles or Sections of this Agreement.
ARTICLE 2.
EXCHANGE OF ASSETS
2.1. Transfer by the STC Exchange Entities.
Subject to the terms and conditions hereof and in reliance upon the
representations, warranties and agreements contained herein, (a) STC
Broadcasting shall assign, transfer, convey and deliver to HAT free and clear of
any Encumbrances other than Permitted Encumbrances, and HAT shall acquire and
accept from STC Broadcasting all right, title and interest of STC Broadcasting
in, to and under all real, personal and mixed assets, rights, benefits and
privileges, both tangible and intangible, owned, leased, used or useful by STC
Broadcasting in connection with the business and operations of the STC Stations
other than the STC License Assets (collectively, the "STC Non-License Assets");
and (b) STC License Company shall assign, transfer, convey and deliver to HAT
free and clear of any Encumbrances other than Permitted Encumbrances, and HAT
shall acquire and accept from STC License Company, all right, title and interest
of STC License Company in, to and under all STC License Assets (the STC Non-
License Assets and the STC License Assets are collectively referred to herein as
the "STC Assets"). The STC Assets shall exclude the STC Excluded Assets
described in Section 2.4.
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2.2. Transfer by HAT.
Subject to the terms and conditions hereof and in reliance upon the
representations, warranties and agreements contained herein, (a) HAT shall
assign, transfer, convey and deliver to STC Broadcasting free and clear of any
Encumbrances other than Permitted Encumbrances, and STC Broadcasting shall
acquire and accept from HAT, all right, title and interest of HAT in, to and
under all real, personal and mixed assets, rights, benefits and privileges, both
tangible and intangible, owned, leased, used or useful by HAT in connection with
the business and operations of the HAT Stations other than the HAT License
Assets (collectively, the "HAT Non-License Assets"); and (b) HAT shall assign,
transfer, convey and deliver to STC License Company (and in the case of the FCC
Licenses for WNAC, for assignment, transfer, conveyance and delivery by STC
License Company immediately thereafter on the Closing Date to ▇▇▇▇▇ Acquisition
License Company, a Delaware corporation ultimately controlled by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
("SALC")) free and clear of any Encumbrances other than Permitted Encumbrances,
and STC License Company shall acquire and accept from HAT, all right, title and
interest of HAT in, to and under all HAT License Assets (the HAT License Assets
and the HAT Non-License Assets are collectively referred to herein as the "HAT
Assets") (the STC Assets and the HAT Assets are sometimes each individually
referred to herein as "Assets"). The HAT Assets shall exclude the HAT Excluded
Assets described in Section 2.4.
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2.3. Description of the Assets.
The Assets for each Station shall include, without limitation, all of
the right, title and interest of the party transferring such Assets in, to and
under the items described below. The party transferring Assets is sometimes
referred to herein as the "Transferring Party"; and the party acquiring and
accepting Assets from the Transferring Party is sometimes referred to herein as
the "Recipient Party".
2.3.1. FCC Licenses.
All licenses, permits and other authorizations issued by the
FCC for the operation of the Stations of the Transferring Party (the "FCC
Licenses"), including without limitation those listed in Schedule 2.3.1, and all
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applications therefor, together with any renewals, extensions or modifications
thereof and additions thereto.
2.3.2. Real and Leased Property Interests.
(a) All the real property, including, without limitation, all
land, fee interests, easements and other interests of every kind and description
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in real property, buildings, structures, fixtures, appurtenances, towers and
antennae, and other improvements thereon owned by the Transferring Party and
used or useful in connection with the business and operations of its Stations
("Real Property"), including, without limitation, all of those items listed in
Schedule 2.3.2.
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(b) All the real property leasehold interests, including,
without limitation, leases and subleases of any land, easements and other real
property leasehold interests of every kind and description in real property,
buildings, structures, fixtures, appurtenances, towers and antennae, and other
improvements thereon leased by the Transferring Party in connection with the
business and operations of its Stations ("Leased Property"), including, without
limitation, all of those items listed in Schedule 2.3.2.
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2.3.3. Tangible Personal Property.
All of the furniture, fixtures, furnishings, machinery,
computers, equipment, inventory, spare parts, supplies, office materials and
other tangible property of every kind and description owned, leased or used by
the Transferring Party in connection with the business and operations of its
Stations, together with any replacements thereof and additions thereto made
before the Closing Date, and less any retirements or dispositions thereof made
before the Closing Date in the Ordinary Course of Business, including, without
limitation, those items which have a book value in excess of Five Thousand
Dollars ($5,000), all of which are set forth and identified in Schedule 2.3.3.
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2.3.4. Intellectual Property.
All of the service marks, copyrights, franchises, trademarks,
trade names, jingles, slogans, logotypes and other similar intangible assets
maintained, owned, leased or used by the Transferring Party in connection with
the business and operations of its Stations (including any and all applications,
registrations, extensions and renewals relating thereto) (the "Intellectual
Property"), and all of the rights, benefits and privileges associated therewith
including, without limitation, the right to use the call letters for its
Stations identified in Schedule 2.3.4.
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2.3.5. Program Contracts.
The program licenses and contracts under which the
Transferring Party is authorized to broadcast programs on its Stations
(collectively the "Program Contracts") including, without limitation, (a) all
program (cash and non-cash) licenses and contracts listed on Schedule 2.3.5, and
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(b) any other such program contracts that are entered into between the date of
this Agreement and the Closing Date in accordance with the terms of this
Agreement.
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2.3.6. Trade-out Agreements.
All contracts and agreements (excluding Program Contracts)
pursuant to which commercial air time on the Transferring Party's Stations has
been sold, traded or bartered in consideration for any property or services in
lieu of or in addition to cash (collectively, the "Trade-out Agreements")
including, without limitation, those set forth and identified in Schedule 2.3.6.
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2.3.7. Broadcast Time Sales Agreement.
All contracts and agreements pursuant to which commercial air
time on the Transferring Party's Stations has been sold for cash (collectively
the "Time Sales Agreements").
2.3.8. Network Affiliation Agreements.
All network affiliation agreements and other contracts of the
Stations of the Transferring Party with a television broadcast network
(collectively, the "Network Agreements") including, without limitation, those
listed on Schedule 2.3.8.
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2.3.9. Operating Contracts.
All other operating contracts and agreements relating to the
business or operations of the Transferring Party's Stations, all material such
contracts as of the date hereof being listed on Schedule 2.3.9 (including,
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without limitation, the Clear Channel Agreements, all employment agreements and
talent contracts, all leases and subleases relating to the Leased Property, all
agreements relating to any motor vehicles, and all national and local
advertising representation agreements for its Stations), together with all
contracts and agreements that will be entered into between the date of this
Agreement and the Closing Date in accordance with the terms of this Agreement
(collectively, the "Operating Contracts" and together with the Program
Contracts, Trade-out Agreements, Time Sales Agreements and Network Agreements,
the "Station Contracts").
2.3.10. Vehicles.
All automotive equipment and motor vehicles maintained,
owned, leased or otherwise used by the Transferring Party in connection with the
business and operations of its Stations, including, without limitation, those
set forth and described in Schedule 2.3.10.
---------------
-6-
2.3.11. Files and Records.
All engineering, business and other books, papers, logs,
files and records pertaining to the business and operations of the Transferring
Party's Stations, but not the organizational documents and records of the
Transferring Party.
2.3.12. Auxiliary Facilities.
All translators, earth stations, and other auxiliary
facilities, and all applications therefor owned, leased or otherwise used or
useful by the Transferring Party in connection with the business and operations
of its Stations, including, without limitation, those set forth and described in
Schedule 2.3.12.
---------------
2.3.13. Permits and Licenses.
All permits, approvals, orders, authorizations, consents,
licenses, certificates, franchises, exemptions of, or filings or registrations
with, any court or Governmental Authority (other than the FCC) in any
jurisdiction, which have been issued or granted to or are owned or used or
useful by the Transferring Party in connection with the business and operations
of its Stations and all pending applications therefor.
2.3.14. Goodwill.
The business of the Transferring Party's Stations as a
"going concern", customer relationships and goodwill.
2.3.15. Certain Accounts Receivable.
As to STC, all Accounts Receivable arising out of the
business and operations of KSBW, and all Accounts Receivable arising out of the
business and operations of the Burlington Stations from the STC Transfer Date
under the ▇▇▇▇▇▇▇▇ Agreement. As to HAT, all Accounts Receivable arising out of
the business and operations of WDTN. Schedule 2.3.15 contains a true and
---------------
complete list, dated as of December 31, 1997, of all Accounts Receivable with
respect to KSBW and WDTN as of such date.
2.3.16. Rights Under the ▇▇▇▇▇▇▇▇ Documents.
As to STC, all of STCBV's rights under or pursuant to the
▇▇▇▇▇▇▇▇ Documents except to the extent that such rights pertain to or affect
WFFF.
-7-
2.3.17. Certain Cash.
As to STC, all cash, cash equivalents or deposits arising
out of the business and operations of the Burlington Stations from and after the
STC Transfer Date, and all interest payable in connection with any such cash,
cash equivalents or deposits after giving effect to the payment of operating
expenses of the Burlington Stations, but excluding any proceeds of a WFFF
Disposition (as defined in that certain Credit Agreement to be entered into by
HAT and STCBV Sub in connection with the Burlington Financing Amount).
2.4. Excluded Assets.
Notwithstanding anything to the contrary in this Agreement, there
shall be excluded from the Assets of each Transferring Party and retained by
such Transferring Party, to the extent in existence as of the Closing Date, the
following assets (collectively, the "Excluded Assets") (the Excluded Assets for
the STC Stations are sometimes individually referred to herein as the "STC
Excluded Assets"; and the Excluded Assets for the HAT Stations are sometimes
individually referred to herein as the "HAT Excluded Assets").
2.4.1. Cash.
Except as set forth in Section 2.3.17, all cash, cash
--------------
equivalents or deposits held by such Transferring Party, all interest payable in
connection with any such cash, cash equivalents or deposits or short term
investments, bank balances and rights in and to bank accounts, marketable and
other securities of such Transferring Party.
2.4.2. Certain Accounts Receivable.
As to STC, all accounts receivable assigned to STCBV Sub for
purposes of collection only under the ▇▇▇▇▇▇▇▇ Agreement (the "▇▇▇▇▇▇▇▇
Receivables"); and, as to HAT, all amounts which are payable to HAT under the
Clear Channel Agreements which were earned prior to the Closing Date.
2.4.3. Personal Property Disposed Of.
All tangible personal property disposed of or consumed in the
Ordinary Course of Business as permitted by this Agreement.
2.4.4. Insurance.
All contracts of insurance and all insurance plans and the
assets thereof.
-8-
2.4.5. Employee Plans and Assets.
All Plans, Benefit Arrangements (except for any Station
Contracts, Proration Items or other matters which are specifically required to
be assumed by the Recipient Party pursuant to the terms thereof), Qualified
Plans and Welfare Plans and the assets thereof.
2.4.6. Right to Tax Refunds.
Any and all claims of the Transferring Party with respect to
any Tax refunds.
2.4.7. Certain Books and Records.
All of (a) the Transferring Party's organizational documents,
corporate books and records (including minute books and stock ledgers and
records), and originals of account books of original entry, (b) duplicated
copies of any books, records, accounts, checks, payment records, Tax records
(including payroll, unemployment, real estate and other Tax records) and other
similar books, records and information of the Transferring Party relating to the
Transferring Party's operation of the business of its Stations prior to the
Closing Date, (c) all records prepared by or on behalf of the Transferring Party
in connection with the acquisition by it or conveyance of its Stations, and (d)
all records and documents relating to any Excluded Assets.
2.4.8. Third-Party Claims.
To the extent related to any Excluded Assets, all rights and
claims of the Transferring Party whether mature, contingent or otherwise,
against third parties relating to the Assets or the Stations of the Transferring
Party, whether in tort, contract, or otherwise.
2.4.9. Rights Under this Agreement.
All of the Transferring Party's rights under or pursuant to
this Agreement or any other rights in favor of the Transferring Party pursuant
to the other agreements contemplated hereby.
2.4.10. Rights Under the HAT Merger Agreement.
As to HAT, all of HAT's rights under or pursuant to that (a)
certain Amended and Restated Agreement and Plan of Merger, dated as of March 26,
1997, by and among The Hearst Corporation, HAT Merger Sub, Inc., HAT
Contribution Sub, Inc., Argyle Television, Inc., and (b) that certain Stock
-9-
Purchase Agreement, dated as August 26, 1994, by and among Argyle Television
Holdings II, Inc. and NPG, Inc.
2.4.11. Names.
As to STC, all rights to the name "Sunrise Television",
"STC", "STC Broadcasting" and any logo or variation thereof and the goodwill
associated therewith; and, as to HAT, all rights to the name "Hearst-Argyle",
"Hearst" and any logo or variation thereof and the goodwill associated
therewith.
2.4.12. Deposit and Prepaid Expenses.
All of the Transferring Party's deposits and prepaid
expenses, provided, however, any deposit and prepaid expenses shall be included
-------- -------
in the Assets of the Transferring Party conveyed pursuant hereto to the extent
that the Transferring Party receives a credit therefor in the calculation of the
Proration Amount pursuant to Section 2.6.
-----------
2.4.13. Shared Contracts.
As to STC, all shared contracts and agreements relating to
both the STC Stations and any television broadcast station other than the STC
Stations (including, without limitation, WFFF, subject to Section 2.11) as
------------
identified on Schedule 2.4.13; and, as to HAT, all shared contracts and
---------------
agreements relating to both the HAT Stations and any television broadcast
station other than the HAT Stations as identified on Schedule 2.4.13.
---------------
2.4.14. Labor Union Contracts.
As to STC, all labor union or other collective bargaining
agreements relating to KSBW as identified on Schedule 2.4.14; and, as to HAT,
---------------
all labor union or other collective bargaining agreements relating to WDTN as
identified on Schedule 2.4.14.
---------------
2.4.15. Miscellaneous Excluded Assets.
The assets listed and identified on Schedule 2.4.15.
---------------
2.4.16. Affiliated Transactions.
All of the Transferring Party's rights and obligations under
any Affiliated Transactions except to the extent any such rights or obligations
are temporarily transferred pursuant to Section 6.13, including, without
------------
limitation, those set forth in Schedule 2.4.16.
---------------
-10-
2.4.17. Assets of Other Television Stations.
As to STC, all assets and properties of STC owned, used,
held for use or leased by STC in connection with the business and operations of
any television broadcast station other than the STC Stations (including, without
limitation, WFFF, subject to Section 2.11); and, as to HAT, all assets and
------------
properties of HAT owned, used, held for use or leased by HAT in connection with
the business and operations of any television broadcast station other than the
HAT Stations.
2.5. Exchange of Assets.
2.5.1. For and in consideration of the conveyance of the STC Assets
to HAT and in addition to the assumption of Liabilities by HAT as set forth in
Section 2.10, at the Closing HAT agrees to (a) transfer to STC Broadcasting the
------------
HAT Non-License Assets and transfer to STC License Company the HAT License
Assets, as provided for in Section 2.2, and (b) pay to STC by wire transfer of
-----------
immediately available funds to an account designated by STC the amount of
Twenty-One Million Three Hundred Sixty-Six Thousand Six Hundred and Fifty
Dollars ($21,366,650) (the "Cash Consideration"), less (i) any Burlington
----
Financing Amount which is not repaid by STCBV Sub as of the Closing Date, and
(ii) plus any adjustments, if any, with respect to the ABC Affiliation Agreement
----
as described in Section 7.5.
-----------
2.5.2. For and in consideration of the conveyance of the HAT Assets
to the STC Exchange Entities, the payment of the Cash Consideration to STC and
in addition to the assumption of Liabilities by STC as set forth in Section 2.9,
-----------
at the Closing the STC Exchange Entities agree to transfer to HAT the STC Assets
as provided for in Section 2.3.
-----------
2.6. Proration Amounts.
2.6.1. At least five (5) days prior to the Closing Date, each
Transferring Party shall make a good faith estimate of the Proration Items for
its Stations that are customary in television broadcast station transactions
(each a "Proration Amount") to reflect that all Proration Items of the
Transferring Party's Stations shall be apportioned between the Recipient Party
and the Transferring Party in accordance with the principle that the
Transferring Party shall receive the benefit of all revenues, refunds, deposits
(other than deposits for Program Contracts which shall be prorated based on the
percentage of the term that the film or program was aired on the Transferring
Party's Stations before the Closing Date and the percentage available to be
aired on and after the Closing Date) and prepaid expenses, and shall be
responsible for all expenses, costs and liabilities allocable to the conduct of
the businesses or operations of the Transferring Party's Stations for
-11-
the period prior to the Closing Date, and the Recipient Party shall receive the
benefit of all revenues, refunds, deposits and prepaid expenses, and shall be
responsible for all expenses, costs and liabilities allocable to the conduct of
the businesses or operations of such Stations from and after the Closing Date;
provided, however, there shall be no adjustment or proration for any negative or
-------- -------
positive net trade balance for WPTZ or WNNE except to the extent that the
negative trade balance (i.e., the amount by which the value of goods or services
---
to be received is less than the value of any advertising time remaining to be
run) for either Station exceeds Fifty Thousand Dollars ($50,000) as of the
Closing Date; provided, further, that prorations or adjustments pursuant to this
-------- -------
Section 2.6 shall be made with respect to WNAC and WPRI only to the extent that
-----------
there are earnings under the Clear Channel Agreements which have not been paid
to HAT and which relate to HAT's period of ownership of WNAC. Determinations
pursuant to this Section 2.6.1 shall be made in accordance with generally
-------------
accepted accounting principles consistently applied for the period prior to the
Closing Date. All Proration Amounts shall be payable in cash at the Closing.
2.6.2. Within ninety (90) days after the Closing Date, the Recipient
Party shall deliver to the Transferring Party in writing and in reasonable
detail a good faith final determination of the Proration Amount determined as of
the Closing Date under Section 2.6.1 ("Final Proration Amount"). The
-------------
Transferring Party shall assist the Recipient Party in making such
determination, and the Recipient Party shall provide the Transferring Party with
reasonable access to the properties, books and records relating to the Stations
of the Transferring Party for the purpose of determining the Final Proration
Amount. The Transferring Party shall have the right to review the computations
and workpapers used in connection with the Recipient Party's preparation of the
Final Proration Amount. If the Transferring Party disagrees with the amount of
the Final Proration Amount determined by the Recipient Party, the Transferring
Party shall so notify the Recipient Party in writing within thirty (30) days
after the date of receipt of the Recipient Party's Final Proration Amount,
specifying in detail any point of disagreement; provided, however, that if the
-------- -------
Transferring Party fails to notify the Recipient Party in writing of the
Transferring Party's disagreement within such thirty (30) day period, the
Recipient Party's determination of the Final Proration Amount shall be final,
conclusive and binding on the parties. After the receipt of any notice of
disagreement, the parties shall negotiate in good faith to resolve any
disagreements regarding the Final Proration Amount. If any such disagreement
cannot be resolved by the parties within thirty (30) days after the Recipient
Party has received notice from the Transferring Party of the existence of such
disagreement, the parties shall jointly select a nationally recognized
independent public accounting firm (the "Accounting Firm"), to review the
Recipient Party's determination of the Final Proration Amount and to resolve as
soon as possible all points of disagreement raised by the Transferring Party.
All determinations made by the Accounting Firm with respect to the Final
Proration Amount shall be final,
-12-
conclusive and binding on the parties. The fees and expenses of the Accounting
Firm incurred in connection with any such determination shall be shared one-half
by the Recipient Party and one-half by the Transferring Party.
2.6.3. If the Final Proration Amount is such that the Recipient
Party's payment of the Proration Amount at the Closing was an underpayment to
the Transferring Party, then the Recipient Party shall pay such underpayment
amount to the Transferring Party in cash, within two (2) business days following
the final determination of the Final Proration Amount. If the Final Proration
Amount is such that the Recipient Party's payment of the Proration Amount at the
Closing was an overpayment to the Transferring Party, then the Transferring
Party shall pay such overpayment amount to the Recipient Party in cash within
two (2) business days following the final determination of the Final Proration
Amount. Any amounts paid pursuant to this Section 2.6.3 shall be by wire
-------------
transfer of immediately available funds for credit to the recipient at a bank
account identified by such recipient in writing.
2.6.4. The parties agree that prior to the date of the final
determination of the Final Proration Amount pursuant to this Section 2.6 (by the
-----------
Accounting Firm or otherwise), neither party will destroy any records pertaining
to, or necessary for, the final determination of the Final Proration Amount.
2.7. Accounts Receivable.
2.7.1. At least five (5) days prior to the Closing Date, STC shall
make a good faith estimate of the Accounts Receivable as of the Closing Date for
KSBW less five percent (5%) reserved for bad debts (the "KSBW Receivables"), and
HAT shall make a good faith estimate of the Accounts Receivable as of the
Closing Date for WDTN less five percent (5%) reserved for bad debts (the "WDTN
Receivables"). On the Closing Date, (a) if the amount of the KSBW Receivables
is greater than the amount of the WDTN Receivables, HAT shall pay to STC, in
cash, the amount of the KSBW Receivables minus the amount of the WDTN
-----
Receivables, and (b) if the amount of the WDTN Receivables is greater than the
amount of the KSBW Receivables, STC shall pay to HAT, in cash, the amount of the
WDTN Receivables minus the amount of the KSBW Receivables.
-----
2.7.2. Within thirty (30) days after the Closing Date, the Recipient
Party shall deliver to the Transferring Party in writing and in reasonable
detail a good faith final determination of the Accounts Receivable acquired by
the Recipient Party as of the Closing Date (the "Final AR Amount"). The
Transferring Party shall assist the Recipient Party in making such
determination, and the Recipient Party shall provide the Transferring Party with
reasonable access to the books and records relating to the Stations of the
Recipient Party for the purpose of determining the final Accounts Receivable
amount. The Transferring Party shall
-13-
have the right to review the computations and work papers used in connection
with the Recipient Party's preparation of the Final AR Amount. If the
Transferring Party disagrees with the Final AR Amount determined by the
Recipient Party, the Transferring Party shall so notify the Recipient Party
within thirty (30) days after the date of receipt of the Recipient Party's Final
AR Amount, specifying in detail any point of disagreement; provided, however,
-------- -------
that if the Transferring Party fails to notify the Recipient Party in writing of
the Transferring Party's disagreement within such thirty (30) day period, the
Recipient Party's determination of the Final AR Amount shall be final,
conclusive and binding on the parties. After the receipt of any notice of
disagreement, the parties shall negotiate in good faith to resolve any
disagreements regarding the Final AR Amount. If any such disagreement cannot be
resolved by the parties within thirty (30) days after the Recipient Party has
received notice from the Transferring Party of the existence of such
disagreement, the parties shall jointly select an Accounting Firm to review the
Recipient Party's determination of the Final AR Amount and to resolve as soon as
possible all points of disagreement raised by the Transferring Party. All
determinations made by the Accounting Firm with respect to the Final AR Amount
shall be final, conclusive and binding on the parties. The fees and expenses of
the Accounting Firm incurred in connection with any such determination shall be
shared one-half by the Recipient Party and one-half by the Transferring Party.
2.7.3. If the Final AR Amount is such that the Recipient Party's
payment of the Accounts Receivable amount at the Closing was an underpayment to
the Transferring Party, then the Recipient Party shall pay such underpayment
amount to the Transferring Party in cash, within two (2) business days following
the final determination of the Final AR Amount. If the Final AR Amount is such
that the Recipient Party's payment of the Accounts Receivable amount at the
Closing is an overpayment to the Transferring Party, then the Transferring Party
shall pay such overpayment to the Recipient Party in cash within two (2)
business days following the determination of the Final AR Amount. Any amount
paid pursuant to this Section 2.7 shall be by wire transfer of immediately
-----------
available funds for credit to the recipient at a bank account identified by such
recipient in writing.
2.7.4. The parties agree that prior to the date of the final
determination of the Final AR Amount pursuant to this Section 2.7 (by the
-----------
Accounting Firm or otherwise) neither party will destroy any records pertaining
to, or necessary for, the final determination of the Final AR Amount.
-14-
2.8. Allocation of Asset Values.
2.8.1. The fair market value of the STC Assets and the HAT Assets
shall be determined and allocated on the basis of an appraisal (the "Appraisal")
prepared by Bond & ▇▇▇▇▇▇ (the "Appraisal Firm"). The Appraisal Firm shall be
instructed to perform an appraisal of the classes of Assets of each Station and
to deliver a report to STC and HAT as soon as reasonably practicable (the
"Appraisal Report"). The Appraisal Report shall be subject to the approval of
HAT and STC and HAT and STC shall cooperate in good faith to resolve any issues
or differences relating to the Appraisal Report. HAT and STC shall each pay
one-half of the fees, costs and expenses of the Appraisal Firm whether or not
the transactions contemplated hereby are consummated.
2.8.2. Within thirty (30) days of receipt of the Appraisal Report,
the parties shall prepare a schedule that sets forth the "exchange groups" and
"residual groups" (as each quoted term is defined by Treas. Reg. Section
1.1031(j)-1(b)(2)) for the exchanges contemplated by Section 6.12.2 (the
--------------
"Section 1031 Schedule"), together with each asset included in the STC Assets
and HAT Assets that belongs to the relevant exchange group or residual group.
The parties shall cooperate in good faith to resolve any issues relating to the
Section 1031 Schedule to be filed by each individual taxpayer.
2.8.3. Each party, as necessary, shall prepare IRS Form 8594 and IRS
Form 8824 reflecting the fair market value of the Assets such party has
transferred and received as determined in accordance with the above provisions
and shall forward such form to the other parties within thirty (30) days after
agreement on the Section 1031 Schedule. Each party, as necessary, shall file
their respective federal income tax returns for the tax year in which the
Closing occurs with the IRS Form 8594 and IRS Form 8824 as prepared in
accordance with the foregoing. The parties hereto hereby covenant and agree
with each other that they will not take a position on any income tax return that
is in any way inconsistent with the terms of this Section 2.8.3.
-------------
2.9. Assumption of Liabilities by STC.
2.9.1. At the Closing, STC shall assume, pay, perform, discharge and
indemnify and hold HAT harmless from and against (a) all Liabilities arising out
of events occurring on or after the Closing Date related to the businesses or
operations of the HAT Stations or the ownership of the HAT Assets by STC, (b)
all Liabilities arising out of events occurring on or after the Closing Date
with respect to the FCC Licenses of HAT, (c) all Liabilities arising on or after
the Closing Date under the Station Contracts of HAT (including, without
limitation, Trade-out Agreements) pursuant to their terms (except for
Liabilities for any breaches
-15-
thereunder by HAT occurring prior to the Closing Date), (d) all Liabilities for
which there is an adjustment in favor of STC in connection with the calculation
of the Proration Amount, and (e) all Liabilities to employees of the HAT
Stations to be assumed by STC in accordance with Section 6.9 hereof.
-----------
2.9.2. Except for the Assumed Liabilities described in this Section
-------
2.9, no STC Party will assume any other Liabilities of any kind or description
---
of HAT.
2.10. Assumption of Liabilities by HAT.
2.10.1. At the Closing, HAT shall assume, pay, perform, discharge
and indemnify and hold STC harmless from and against (a) all Liabilities arising
out of events occurring on or after the Closing Date related to the businesses
or operations of the STC Stations or the ownership of the STC Assets by HAT, (b)
all Liabilities arising out of events occurring on or after the Closing Date
with respect to the FCC Licenses of STC License Company, (c) all Liabilities
arising on or after the Closing Date under the Station Contracts of STC
(including, without limitation, Trade-out Agreements) pursuant to their terms
(except for Liabilities for any breaches thereunder by STC occurring prior to
the Closing Date), (d) all Liabilities for which there is an adjustment in favor
of HAT in connection with the calculation of the Proration Amount, (e) all
Liabilities to employees of the STC Stations to be assumed by HAT in accordance
with Section 6.8 and Section 6.9 hereof, (f) except for the WFFF Liabilities,
----------- -----------
all Liabilities of STC under the ▇▇▇▇▇▇▇▇ Documents (or Liabilities assumed
pursuant to the terms thereof), and (g) all Liabilities arising out of events
occurring on or after the Non-License Transfer (as defined in the ▇▇▇▇▇▇▇▇
Agreement) relating to the business and operations of WNNE and WPTZ (the
Liabilities described in Section 2.10.1(f) and Section 2.10.1(g) are sometimes
----------------- -----------------
collectively referred to herein as the "▇▇▇▇▇▇▇▇ Liabilities").
2.10.2. Except for the Assumed Liabilities described in this
Section 2.10, HAT will not as *** any other Liabilities of any kind or
------------
description of STC.
2.11. Matters Related to the Burlington Stations.
2.11.1. HAT acknowledges and agrees that the consummation of the
purchase by STC of WPTZ and WNNE is, as of the date of this Agreement, pending
pursuant the terms of the ▇▇▇▇▇▇▇▇ Agreement. Notwithstanding anything to the
contrary set forth herein or otherwise, no STC Party shall make or be deemed to
make any representations, warranties, covenants or agreements regarding WPTZ or
WNNE or any assets related thereto until the consummation of the purchase by STC
of such Stations and Assets and thereafter any representations, warranties,
covenants or agreements regarding such Stations and Assets shall only relate to
-16-
STC's period of ownership of such Stations and Assets. In addition, the terms
"STC Assets", "Assets", "STC Stations" and "Stations" shall not include WPTZ or
WNNE or the related assets of such stations until such time as WPTZ and WNNE are
acquired by STC pursuant to the ▇▇▇▇▇▇▇▇ Agreement.
2.11.2. At the Closing, STC Broadcasting (as the successor-in-
interest to STCBV Sub) agrees to assign to HAT all of STC Broadcasting's right,
title and interest in, to and under the ▇▇▇▇▇▇▇▇ Documents that relate to WPTZ,
WNNE and any assets related thereto (but not including the assets of WFFF). In
the event that any such rights and interests are not assignable, STC
Broadcasting shall use commercially reasonable efforts (a) to provide HAT the
financial and business benefits HAT would have enjoyed had such rights and
interests been assignable as of the date hereof, and (b) upon the request of
HAT, to enforce in STC Broadcasting's name for the account of HAT any rights
that would otherwise have been available to HAT had the rights and interests
under the ▇▇▇▇▇▇▇▇ Documents been assignable as of the date hereof.
2.11.3. Subject to the terms and conditions of Section 2.11.4
--------------
below, all of the assets used in the operation of WFFF shall be retained by STC
Broadcasting or its permitted designee, including the rights and obligations of
Heritage Media Corporation pursuant to the Broadcast Facilities Agreement and
Time Brokerage Agreement, each entered into on August 3, 1995, as amended (the
"WFFF TBA"). As of the Closing Date, HAT shall operate WFFF pursuant to the
WFFF TBA for a period up to two (2) years from the Closing Date until such time
as STC Broadcasting requests termination of such operation by HAT (the "Interim
Operation"). Under the Interim Operation, STC Broadcasting shall receive all
income net of any out-of-pocket expenses incurred by HAT for the operation of
WFFF and shall reimburse HAT if WFFF is being operated at a net deficit. STC
Broadcasting shall be responsible for all payments due to Champlain Valley
Telecasting, Inc. pursuant to the WFFF TBA during the Interim Operation. At the
conclusion of the Interim Operation, STC Broadcasting shall no longer use any of
the WPTZ facilities in connection with the operation of WFFF, other than the use
of tower and equipment space at ▇▇▇▇▇ Mountain, New York, until such time as STC
Broadcasting is able to relocate its transmission facilities to Mt. Mansfield,
Vermont. There will be no charges for rental of such space for a period of up
to two (2) years after the conclusion of the Interim Operation. HAT agrees to
cooperate at the sole expense of STC Broadcasting in all reasonable respects in
connection with such relocation. In the event that STC Broadcasting is
unsuccessful in relocating WFFF to Mt. Mansfield within this two (2) year
period, HAT agrees to enter into a twenty (20) year lease agreement with STC
Broadcasting for the ▇▇▇▇▇ Mountain space on fair market value terms and
conditions. During the period of the Interim Operation, STC Broadcasting shall
not have the right to assign the WFFF TBA (and any rights or obligations
hereunder relating to WFFF), in whole or in part, except (a) to any Affiliate of
STC Broadcasting or (b) to any other Person with the
-17-
prior written consent of HAT (which consent shall not be unreasonably withheld,
conditioned or delayed).
2.11.4. HAT acknowledges and agrees that certain of the STC Assets
are also used, held for use or useful in connection with the business and
operations of WFFF (collectively, the "STC Shared Assets"). Prior to the
Closing, STC Broadcasting and HAT shall in good faith allocate the STC Shared
Assets between STC Broadcasting and HAT in accordance with the principle that
those STC Shared Assets used solely in connection with the business and
operations of WFFF shall be retained by STC Broadcasting and included in the STC
Excluded Assets, and all other STC Shared Assets shall be transferred to HAT.
Notwithstanding the foregoing, to the extent that any of the STC Shared Assets
retained by STC Broadcasting are necessary for HAT's operation of WPTZ and/or
WNNE after the Closing, or any of the STC Shared Assets conveyed to HAT are
necessary for STC Broadcasting's continued operation of WFFF after the Closing,
such STC Shared Assets shall be available for joint use by the parties at no
cost for a transitional period for up to two (2) years following the Closing
Date.
2.11.5. At the Closing, the parties agree to enter into a mutually
agreeable transitional services agreement which shall set forth the terms and
conditions of (a) the Interim Operation described in Section 2.11.3, and (b) the
--------------
joint use of certain STC Shared Assets described in Section 2.11.4.
--------------
2.11.6. In order to provide an equitable sharing of the indemnities
contained in Article 12 of the ▇▇▇▇▇▇▇▇ Agreement and the Guaranty of even date
by ▇▇▇▇▇▇▇▇ Parent, the parties will coordinate the filing of any claims against
▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ Parent so that (a) with respect to WFFF, STC shall have the
benefits of up to two percent (2%) of the Basket Amount (as defined in the
▇▇▇▇▇▇▇▇ Agreement) and the Indemnity Cap (as defined in the ▇▇▇▇▇▇▇▇
Agreement), and (b) with respect to WPTZ and WNNE, HAT shall have the benefits
of up to ninety-eight percent (98%) of the Basket Amount (as defined in the
▇▇▇▇▇▇▇▇ Agreement) and the Indemnity Cap (as defined in the ▇▇▇▇▇▇▇▇
Agreement). However, if STC, on the one hand, or HAT, on the other hand, does
not use all of its respective share of such Basket Amount or Indemnity Cap prior
to the scheduled expiration date for the filing of claims against ▇▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇▇ Parent, then the parties shall cooperate so that to the fullest extent
practicable the unused portion of such share shall be made available by STC to
HAT or by HAT to STC, as the case may be, immediately prior to such scheduled
expiration date.
2.12. Matters Related to the Providence Stations.
HAT represents and warrants to the STC Parties that the only HAT
Assets owned, leased, used or useful by HAT in connection with the business and
operations of WNAC are as set forth in Schedule 2.12 (the "Providence Assets").
-------------
In
-18-
reliance upon such representation and warranty, each STC Party acknowledges and
agrees that, notwithstanding anything to the contrary set forth herein or
otherwise, HAT shall not make nor be deemed to make any representations,
warranties, covenants or agreements regarding WNAC or WPRI or any assets related
thereto, except to the extent any such representation, warranty, covenant or
agreement relates to, or is applicable to, the Providence Assets, the Clear
Channel Agreements or the HAT Balance Sheets.
2.13 Financing of Burlington Stations.
On or prior to the acquisition of the non-licensed STC Assets from
▇▇▇▇▇▇▇▇ pursuant to the terms of the ▇▇▇▇▇▇▇▇ Agreement, STCBV shall assign to
STCBV Sub all of STCBV's rights under the ▇▇▇▇▇▇▇▇ Documents and HAT agrees to
loan to STCBV Sub, such amounts as are contemplated by the credit agreement,
guaranty and related documents in the form of Exhibit F (all loans thereunder
---------
being referred to as the "Burlington Financing Amount"), and STCBV and STCBV Sub
agree to simultaneously execute and deliver to HAT, and HAT agrees to
simultaneously execute and deliver to STCBV and STCBV Sub, such credit
agreement, guaranty and related documents.
2.14. Working Capital.
(a) From and after the STC Transfer Date through the Closing Date,
HAT agrees to make advances to STCBV Sub for the working capital requirements of
STCBV Sub in connection with the business and operations of the Burlington
Stations during such period (each a "Working Capital Advance"), as STC may
request from time to time . In order to request a Working Capital Advance, STCBV
Sub shall deliver written notice to HAT at least three (3) business days prior
to the proposed date of the Working Capital Advance, signed by or on behalf of
STCBV Sub, and specifying the following information: (i) the date of such
Working Capital Advance, (ii) the amount of such Working Capital Advance (which
amount shall not be less than Two Hundred and Fifty Thousand Dollars
($250,000)), and (iii) the number and location of the account to which funds are
to be disbursed. Upon receipt of any such notice, HAT shall deliver the amount
of the Working Capital Advance to STCBV Sub, by wire transfer of federal funds
to the account specified in such notice and within three (3) business days
following the date specified in such notice.
(b) STCBV Sub and HAT acknowledge and agree that each Working
Capital Advance shall be used by STCBV Sub for general working capital purposes
in the business and operations of the Burlington Stations from and after the STC
Transfer Date through the Closing Date, which shall include, without limitation
(i) payments of any proration amounts owed by STCBV Sub under the ▇▇▇▇▇▇▇▇
Agreement, (ii) fees under that certain TBA Agreement (as defined in the
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▇▇▇▇▇▇▇▇ Agreement), and (iii) interest payments arising under the Burlington
Financing Amount. STCBV Sub acknowledges and agrees that in the event this
Agreement is terminated as provided in Section 11.2, STCBV Sub agrees to
------------
reimburse HAT for any Working Capital Advances provided by HAT pursuant to this
Section 2.14.
------------
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES BY THE STC PARTIES
Each STC Party, with respect to such STC Party and with respect to
the STC Stations and STC Assets owned by such STC Party, represents and warrants
to HAT as follows:
3.1. Organization and Standing.
The STC Party is duly organized, validly existing and in good
standing under the laws of the state of its organization and is or will be prior
to the Closing Date duly qualified to do business and is or will be prior to the
Closing Date in good standing in any jurisdiction where its STC Stations are
located and operated and in each other jurisdiction where and at such time as
such qualification is necessary, except for those jurisdictions where the
failure to be so qualified would not, individually or in the aggregate, have a
Material Adverse Effect on its STC Stations. The STC Party has the corporate
power and authority to own, lease and otherwise to hold and operate its STC
Assets, to carry on the business of its STC Stations as now conducted, and to
enter into and perform the terms of this Agreement, the other STC Documents to
which the STC Party is a party and the transactions contemplated hereby and
thereby.
3.2. Authorization.
The execution, delivery and performance of this Agreement and of the
other STC Documents to which the STC Party is a party, and the consummation of
the transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action (none of which actions has been
modified or rescinded and all of which actions are in full force and effect).
This Agreement constitutes, and upon execution and delivery of the other
agreements to which the STC Party is a party will constitute, valid and binding
agreements and obligations of the STC Party, enforceable against the STC Party
in accordance with their respective terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights generally and
by the application of general principles of equity.
-20-
3.3. Compliance with Laws.
To STC's knowledge, STC is in material compliance with all Laws
applicable to the STC Assets and to the business and operations of the STC
Stations. STC has obtained and holds all material permits, licenses and
approvals (none of which has been modified or rescinded and all of which are in
full force and effect) from all Governmental Authorities necessary in order to
conduct the operations of the STC Stations as presently conducted.
3.4. Consents and Approvals; No Conflicts.
3.4.1. The execution and delivery of this Agreement, and the
performance of the transactions contemplated herein by the STC Party, will not
require any consent, approval, authorization or other action by, or filing with
or notification to, any Person or Governmental Authority, except as follows:
(a) filings required under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇, (b) consents to the assignment of
the FCC Licenses by the FCC, (c) filings, if any, with respect to real estate
transfer taxes, (d) certain of the Station Contracts may be assigned only with
the consent of third parties, as specified in Schedule 3.4, and (e) filings with
------------
the Securities and Exchange Commission.
3.4.2. Assuming all consents, approvals, authorizations and other
actions described in Section 3.4.1 have been obtained and all filings and
-------------
notifications described in Section 3.4.1 have been made, the execution, delivery
-------------
and performance of this Agreement and the other STC Documents to which the STC
Party is a party do not and will not (a) conflict with or violate in any
material respect any Law applicable to the STC Party, its STC Assets or STC
Stations or by which any of its STC Assets or STC Stations is subject or
affected, (b) conflict with or result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
of any of the STC Party's Station Contracts or other material agreements to
which the STC Party is a party or by which the STC Party is bound or to which
any of its STC Assets or STC Stations is subject or affected, (c) result in the
creation of any Encumbrance upon its STC Assets, or (d) conflict with or violate
the organizational documents of the STC Party.
3.5. Financial Statements; Undisclosed Liabilities.
3.5.1. STC has provided to HAT unaudited balance sheets of the STC
Stations as listed on Schedule 3.5 (the "STC Balance Sheets"), and unaudited
------------
statements of income and operating cash flows for the STC Stations as listed on
Schedule 3.5. Such financial statements (a) present fairly in all material
------------
respects the financial condition of the STC Stations as of the date and the
results of operations and operating cash flows for the period indicated, and (b)
have been
-21-
prepared in accordance with generally accepted accounting principles applied on
a consistent basis (except that the financial statements referred to in this
Section 3.5.1 do not contain all footnotes and cash flow information from
-------------
investing and financing activities required under generally accepted accounting
principles and are subject to customary year-end adjustments). To the knowledge
of STC, the Accounts Receivable of STC shown on the balance sheets described in
this Section 3.5 and the KSBW Receivables have been collected or are collectible
in amounts not less than the amounts thereof carried on the books of STC, except
to the extent of the allowance for doubtful accounts shown on such balance
sheets.
3.5.2. There exist no Liabilities of the STC Stations relating to,
or arising out of, the business or operations of the STC Stations, contingent or
absolute, matured or unmatured, known or unknown, except (a) as reflected on the
STC Balance Sheets and (b) for Liabilities that (i) were incurred after December
31, 1997 (the "Current Balance Sheet Date") in the Ordinary Course of Business,
or (ii) were not required to be reflected on the STC Balance Sheets in
accordance with generally accepted accounting principles applied on a consistent
basis.
3.6. Absence of Certain Changes or Events.
Except as set forth and described in Schedule 3.6, since the Current
------------
Balance Sheet Date, there has been no Material Adverse Effect on the STC
Stations. Since the Current Balance Sheet Date, the business of the STC
Stations has been conducted in the Ordinary Course of Business, and the STC
Party has not, with respect to its STC Stations or STC Assets, (a) incurred any
extraordinary loss of, or injury to, any of its STC Assets as the result of any
fire, explosion, flood, windstorm, earthquake, labor trouble, riot, accident,
act of God or public enemy or armed forces, or other casualty; (b) incurred, or
become subject to, any Liability, except current Liabilities incurred in the
Ordinary Course of Business; (c) discharged or satisfied any Encumbrance or paid
any Liability other than current Liabilities shown in the STC Balance Sheets,
current Liabilities incurred since the Current Balance Sheet Date in the
Ordinary Course of Business, and Liabilities (including, without limitation,
partial and complete prepayments) arising under any credit or loan agreement
between the STC Party and its lenders; (d) mortgaged, pledged or subjected to
any Encumbrance any of its STC Assets (except for Permitted Encumbrances); (e)
made any material change in any method of accounting or accounting practice; (f)
sold, leased, assigned or otherwise transferred any of its material STC Assets
other than obsolete STC Assets which have been replaced by suitable
replacements; (g) made any material increase in compensation or benefits payable
to any employee other than in the Ordinary Course of Business; or (h) made any
agreement to do any of the foregoing.
-22-
3.7. Absence of Litigation.
As of the date hereof, except as set forth in Schedule 3.7, there is
------------
no material or, to STC's knowledge, immaterial action, suit, investigation,
claim, arbitration, litigation or similar proceeding, nor any order, decree or
judgment pending or, to STC's knowledge, threatened against STC , the STC Assets
or STC Stations before any Governmental Authority.
3.8. Assets.
Except for the STC Excluded Assets, the STC Assets include all of
the assets or property used or useful in the businesses of the STC Stations as
presently operated, including all of the assets or property acquired under the
▇▇▇▇▇▇▇▇ Documents. Except for leased or licensed STC Assets, STC is the owner
of, and has good title to, the STC Assets free and clear of any Encumbrances,
except for Permitted Encumbrances (including, without limitation, those items
set forth on Schedule 3.8). At the Closing, HAT shall acquire good title to,
------------
and all right, title and interest in and to the STC Assets, free and clear of
all Encumbrances, except for Permitted Encumbrances.
3.9. FCC Matters.
3.9.1. STC License Company holds the FCC Licenses for the STC
Stations listed as held by the STC License Company on Schedule 2.3.1. The FCC
--------------
Licenses contained on Schedule 2.3.1 constitute all of the licenses, permits and
--------------
authorizations from the FCC that are required for the business and operations of
the STC Stations. Except as set forth on Schedule 3.9, such FCC Licenses are
------------
valid and in full force and effect through the dates set forth on Schedule
--------
2.3.1, unimpaired by any condition, other than as set forth in such FCC
-----
Licenses. Except as set forth on Schedule 3.9, no application, action or
------------
proceeding is pending for the renewal or modification of any of STC License
Company's FCC Licenses, and, except for actions or proceedings affecting
television broadcast stations generally, no application, complaint, action or
proceeding is pending or, to STC's knowledge, threatened that may result in the
(a) the revocation, modification, non-renewal or suspension of any of STC
License Company's FCC Licenses, or (b) the issuance of a cease-and-desist order.
Except as set forth in Schedule 3.9, STC has no knowledge of any facts,
------------
conditions or events relating to STC License Company or its STC Stations that
would reasonably be expected to cause the FCC to revoke any of the FCC Licenses
for the STC Stations or not to grant any pending applications for renewal of any
FCC Licenses for the STC Stations or to deny the assignment of the FCC Licenses
of STC License Company to HAT as provided for in this Agreement.
3.9.2. (a) Except as disclosed in Schedule 3.9, STCBV Sub is, and
------------
pending the closing under the ▇▇▇▇▇▇▇▇ Agreement will remain legally,
financially
-23-
and otherwise qualified under the Communications Act and all rules, regulations
and policies of the FCC to acquire and operate the Burlington Stations. Except
as disclosed in Schedule 3.9, there are no facts or proceedings which would
------------
reasonably be expected to disqualify STCBV Sub under the Communications Act or
otherwise from acquiring or operating any of the Burlington Stations or would
cause the FCC not to approve the assignment of the FCC Licenses to STCBV Sub.
Except as disclosed in Schedule 3.9, STC has no knowledge of any fact or
------------
circumstance relating to STC or any Affiliate of STC that would reasonably be
expected to (i) cause the filing of any objection to the assignment of the FCC
Licenses for the Burlington Stations from ▇▇▇▇▇▇▇▇ to STCBV Sub, or (ii) lead to
a delay in the processing by the FCC of the applications for such assignment.
Except for existing waivers pertaining to the Burlington Stations and except for
the temporary waiver specified in Schedule 3.9, no waiver of any FCC rule or
------------
policy is necessary to be obtained for the grant of the applications for the
assignment of the FCC Licenses for the Burlington Stations from ▇▇▇▇▇▇▇▇ to
STCBV Sub, nor will processing pursuant to any exception or rule of general
applicability be requested or required in connection with the consummation of
the transactions herein.
(b) Except as disclosed in Schedule 3.9, each of STC License
------------
Company and SALC is, and pending the Closing will remain legally, financially
and otherwise qualified under the Communications Act and all rules, regulations
and policies of the FCC to acquire and operate WDTN and WNAC, respectively.
Except as disclosed in Schedule 3.9, there are no facts or proceedings which
------------
would reasonably be expected to disqualify STC License Company or SALC under the
Communications Act or otherwise from acquiring or operating WDTN and WNAC,
respectively, or would cause the FCC not to approve the assignment of the FCC
Licenses of WDTN and WNAC to STC License Company and SALC, respectively. Except
as disclosed in Schedule 3.9, STC has no knowledge of any fact or circumstance
------------
relating to STC or any Affiliate of STC that would reasonably be expected to (i)
cause the filing of any objection to the assignment of the FCC Licenses for WDTN
and WNAC from HAT to STC License Company and SALC, respectively, or (ii) lead to
a delay in the processing by the FCC of the applications for such assignment.
Except for existing waivers pertaining to the HAT Stations, no waiver of any FCC
rule or policy is necessary to be obtained for the grant of the applications for
the assignment of the FCC Licenses for WDTN and WNAC from HAT to STC License
Company and SALC, respectively, nor will processing pursuant to any exception or
rule of general applicability be requested or required in connection with the
consummation of the transactions herein.
3.10. Real Property.
3.10.1. STC has good and marketable fee simple title to all fee
estates included in the Real Property of STC and good title to all other owned
Real Property of STC, in each case free and clear of all Encumbrances, except
for
-24-
Permitted Encumbrances (including, without limitation, those items listed on
Schedule 3.10).
-------------
3.10.2. STC has a valid leasehold interest in all Leased Property
listed as leased by STC in Schedule 2.3.2. Schedule 2.3.2 lists all leases and
-------------- --------------
subleases pursuant to which any of such Leased Property is leased by STC in
connection with the business and operations of the STC Stations. STC is the
owner and holder of all such Leased Property purported to be granted by such
leases and subleases. Each such lease and sublease is valid as to STC
thereunder and, to STC's knowledge valid as to any other party thereto, and is
in full force and effect and, to STC's knowledge, constitutes a legal and
binding obligation of, and is legally enforceable against STC and each other
party thereto and grants the leasehold interest it purports to grant, including
any rights to nondisturbance and peaceful and quiet enjoyment that may be
contained therein. The lessees and sublessees are, and to the knowledge of STC,
all other parties are, in compliance in all material respects with the
provisions of such leases and subleases.
3.10.3. The Real Property and the Leased Property of STC listed in
Schedule 2.3.2 constitute all of the real property owned, leased or used in the
--------------
business and operations of the STC Stations which is material to the business
and operations of the STC Stations.
3.10.4. No portion of the Real Property of STC or any building,
structure, fixture or improvement thereon is the subject of, or affected by, any
condemnation, eminent domain or inverse condemnation proceeding currently
instituted or pending or, to the knowledge of STC, threatened. To STC's
knowledge, and to the extent that such documents are in the possession of STC,
STC has delivered to HAT true, correct and complete copies of the following
documents with respect to its Real Property and Leased Property as identified in
Schedule 3.10: (i) deeds, by which STC has received a fee interest in any of
-------------
such Real Property; (ii) leases for all of its Leased Property; (iii) title
insurance policies or commitments; (iv) surveys; and (v) inspection reports or
other instruments or reports, including, without limitation, any phase I or
phase II environmental reports or other similar environmental reports, surveys
or assessments (including any and all amendments and other modifications of such
instruments).
3.11. Intellectual Property.
STC possesses adequate rights, licenses and authority to use all
Intellectual Property necessary to conduct the business of the STC Stations as
presently conducted. STC has good title to all Intellectual Property
maintained, owned, leased or used in connection with the business and operations
of the STC Stations, free and clear of any Encumbrances, except for Permitted
Encumbrances. STC is not obligated to pay any royalty or other fees to anyone
with respect to the
-25-
Intellectual Property of STC. STC has not received any written notice to the
effect that any service rendered by STC relating to the business of the STC
Stations may infringe, or that STC is otherwise infringing, on any intellectual
property right or other legally protectable right of another. No director,
officer or employee of STC has any interest in any Intellectual Property.
3.12. Station Contracts.
Complete and correct copies of the Station Contracts of STC set
forth in Schedules 2.3.5, 2.3.6, 2.3.8 and 2.3.9 (which schedules, as to STC,
---------------------------------------
are true and correct in all material respects) have been made available to HAT
and (a) each such material Station Contract and, to STC's knowledge, each such
immaterial Station Contract, is in full force and effect and constitutes a
legal, valid and binding obligation of STC, and, to STC's knowledge, of each
other party thereto; (b) STC is not in breach or default in any material respect
of the terms of any such Station Contract; (c) none of the material rights of
STC under any such Station Contract will be subject to termination, nor will a
default occur, as a result of the consummation of the transactions contemplated
hereby, except to the extent that failure to obtain the prior consent to
assignment thereof of any party thereto shall or could be interpreted to
constitute a termination or modification of or a default under any such Station
Contract; and (d) to the knowledge of STC, no other party to any such Station
Contract is in breach or default in any material respect of the terms
thereunder.
3.13. Taxes.
STC has (or, in the case of returns becoming due after the date
hereof and on or before the Closing Date, will have prior to the Closing Date)
duly filed all material Tax Returns required to be filed by STC on or before the
Closing Date with respect to all material applicable Taxes. In the case of any
such Tax Returns which receive an extension for their date of filing, such Tax
Returns will be considered due on, and not considered required to be filed
before, the extended due date. All such Tax Returns are (or, in the case of
returns becoming due after the date hereof and on or before the Closing Date,
will be) true and complete in all material respects. STC has: (a) paid all Taxes
due to any Governmental Authority as indicated on such Tax Returns; or (b)
established (or, in the case of amounts becoming due after the date hereof,
prior to the Closing Date will have established) adequate reserves (in
conformity with generally accepted accounting principles consistently applied)
for the payment of such Taxes.
-26-
3.14. Employee Benefit Plans.
3.14.1. Schedule 3.14 lists all Plans and Benefit Arrangements
-------------
maintained by or contributed to by STC for the benefit of the employees of the
STC Stations (collectively referred to as "STC Benefit Plans"). Each STC
Benefit Plan has been maintained in material compliance with its terms and with
ERISA, the Code and other applicable Laws.
3.14.2. Schedule 3.14 sets forth a list of all Qualified Plans
-------------
maintained by or contributed to by STC for the benefit of the employees of the
STC Stations. All such Qualified Plans and any related trust agreements or
annuity agreements (or any other funding document) have been maintained in
material compliance with ERISA and the Code (including, without limitation, the
requirements for tax qualification described in Section 401 thereof), other than
any Multiemployer Plan. To STC's knowledge, any trusts established under such
Plans are exempt from federal income taxes under Section 501(a) of the Code.
3.14.3. Schedule 3.14 lists all funded Welfare Plans of STC that
-------------
provide benefits to current or former employees of the STC Stations or their
beneficiaries. To STC's knowledge, the funding under each such Welfare Plan
does not exceed and has not exceeded the limitations under Sections 419A(b) and
419A(c) of the Code. To STC's knowledge, STC is not subject to taxation on the
income of any such Welfare Plan's welfare benefit fund (as such term is defined
in Section 419(e) of the Code) under Section 419A(g) of the Code.
3.14.4. STC has no post-retirement medical, life insurance or other
benefits promised, provided or otherwise due now or in the future to current,
former or retired employees of the STC Stations.
3.14.5. To STC's knowledge, except as set forth in Schedule 3.14,
-------------
STC has (a) filed or caused to be filed all returns and reports on STC's Plans
that they are required to file and (b) paid or made adequate provision for all
fees, interest, penalties, assessments or deficiencies that have become due
pursuant to those returns or reports or pursuant to any assessment or adjustment
that has been made relating to those returns or reports. All other fees,
interest, penalties and assessments that are payable by or for STC have been
timely reported, fully paid and discharged. There are no unpaid fees, penalties,
interest or assessments due from STC or from any other person that are or could
become an Encumbrance on any of the STC Assets or could otherwise adversely
affect the businesses of the STC Stations or STC Assets. To STC's knowledge, STC
has collected or withheld all amounts that are required to be collected or
withheld by it to discharge its obligations, and all of those amounts have been
paid to the appropriate Governmental Authority or set aside in appropriate
accounts for future payment
-27-
when due. STC has furnished to HAT true and complete copies of all documents
setting forth the terms and funding of each of STC's Plans.
3.14.6. Except as set forth in Schedule 3.14, neither STC nor any
-------------
ERISA Affiliate of STC has ever sponsored or maintained, had any obligation to
sponsor or maintain, or had any liability (whether actual or contingent, with
respect to any of its assets or otherwise) with respect to any of STC's Plans
subject to Section 302 of ERISA or Section 412 of the Code or Title IV of ERISA
(including any Multiemployer Plan). Neither STC nor any ERISA Affiliate of STC
(since January 1, 1989) has terminated or withdrawn from or sought a funding
waiver with respect to any plan subject to Title IV of ERISA, and no facts exist
that could reasonably be expected to cause such actions in the future; no
accumulated funding deficiency (as defined in Code Section 412), whether or not
waived, exists with respect to any such plan; no reportable event (as defined in
ERISA Section 4043) has occurred with respect to any such plan (other than
events for which reporting is waived); all costs of any such plans have been
provided for on the basis of consistent methods in accordance with sound
actuarial assumptions and practices, and the assets of each such plan, as of its
last valuation date, exceeded its "Benefit Liabilities" (as defined in ERISA
Section 4001(a)(16)); and, since the last valuation date for each such plan, no
such plan has been amended or changed to increase the amounts of benefits
thereunder and, to the knowledge of STC, there has been no event that would
reduce the excess of assets over benefit liabilities; and except as set forth in
Schedule 3.14, neither STC nor any ERISA Affiliate of STC has ever made or been
-------------
obligated to make, or reimbursed or been obligated to reimburse another employer
for, contributions to any Multiemployer Plan of STC.
3.14.7. No claims (other than for benefits in the Ordinary Course
of Business) or lawsuits are pending or, to the knowledge of STC, threatened by,
against, or relating to any of the STC Benefit Plans. To STC's knowledge, the
STC Benefit Plans are not presently under audit or examination (nor has notice
been received of a potential audit or examination) by the IRS, the Department of
Labor, or any other governmental agency or entity and no matters are pending
with respect to any Qualified Plan of STC under the IRS's Voluntary Compliance
Resolution program, its Closing Agreement Program, or other similar programs.
3.14.8. With respect to each Plan of STC, there has occurred no
non-exempt "prohibited transaction" (within the meaning of Section 4975 of the
Code) or transaction prohibited by Section 406 of ERISA or breach of any
fiduciary duty described in Section 404 of ERISA that would, if successful,
result in any liability for STC.
3.14.9. STC has no liability with respect to any employee benefit
plan of STC that is not a STC Benefit Plan (exclusive of severance arrangements
and retention agreements) or with respect to any employee benefit plan sponsored
-28-
or maintained (or which has been or should have been sponsored or maintained or
with respect to which there has been an obligation to do so) by any ERISA
Affiliate of STC.
3.14.10. All group health plans of STC and its ERISA Affiliates
covering any current or former employees of the STC Stations have been operated
in material compliance with the requirements of Sections 4980B (and its
predecessor) and 5000 of the Code, and STC has provided, or will have provided
before the Closing Date, to individuals entitled thereto all required notices
and coverage pursuant to Section 4980B with respect to any "qualifying event"
(as defined therein) occurring before or on the Closing Date.
3.15. Labor Relations.
Schedule 3.15 contains a true and complete list of all employees
-------------
engaged in the business or operations of the STC Stations as of the date set
forth on the list, together with such employee's position, salary and date of
hire. Schedule 3.15 lists all written employment contracts with any such
-------------
employees and all written agreements, plans, arrangements, commitments and
understandings pursuant to which STC has severance obligations with respect to
such employees. Except as set forth on Schedule 3.15, no labor union or other
-------------
collective bargaining unit represents or, to STC's knowledge, claims to
represent, any of the employees of the STC Stations. There are no strikes, work
stoppages, grievance proceedings, union organization efforts, or other
controversies pending between STC and any union or collective bargaining unit
representing (or, to STC's knowledge, claiming to represent) any employees of
the STC Stations. STC is in compliance with all Laws relating to the employment
of employees of the STC Stations or the workplace of the STC Stations,
including, without limitation, provisions relating to wages, hours, collective
bargaining, safety and health, work authorization, equal employment opportunity,
immigration and the withholding of income taxes, unemployment compensation,
worker's compensation, employee privacy and right to know and social security
contributions, except for any noncompliance which would not have a Material
Adverse Effect on the STC Stations. Except as set forth on Schedule 3.15, there
-------------
are no collective bargaining agreements relating to the STC Stations or the
business and operations thereof.
3.16. Environmental Matters.
3.16.1. Schedule 3.16 contains a true and complete list and brief
-------------
summary of all material reports, audits and other documents relating to the
environmental condition of STC's Real Property in STC's possession.
3.16.2. Except as set forth in Schedule 3.16, to STC's knowledge
-------------
(which knowledge is based on the items set forth on Schedule 3.16), STC is in
-------------
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material compliance with, and STC's Real Property and all improvements thereon
are in material compliance with, all Environmental Laws.
3.16.3. Except as set forth in Schedule 3.16, there are no pending
-------------
or, to the knowledge of STC , threatened actions, suits, claims, or other legal
proceedings based on (and STC has not received any written notice of any
complaint, order, directive, citation, notice of responsibility, notice of
potential responsibility, or information request from any Governmental Authority
arising out of or attributable to): (a) the current or past presence at any
part of STC's Real Property of Hazardous Materials; (b) the current or past
release or threatened release into the environment from STC's Real Property
(including, without limitation, into any storm drain, sewer, septic system or
publicly owned treatment works) of any Hazardous Materials; (c) the off-site
disposal of Hazardous Materials originating on or from STC's Real Property or
the STC Assets or businesses of the STC Stations; (d) any facility operations or
procedures of the STC Stations which do not conform to requirements of the
Environmental Laws; or (e) any violation of Environmental Laws at any part of
STC's Real Property arising from activities of the STC Stations involving
Hazardous Materials. To the knowledge of STC, STC has been duly issued all
material permits, licenses, certificates and approvals required under any
Environmental Law.
3.17. Insurance.
Schedule 3.17 contains a true and complete list and brief summary of
-------------
all policies of title, property, fire, casualty, liability, life, workmen's
compensation, libel and slander, and other forms of insurance of any kind
relating to the STC Assets or the business and operations of the STC Stations.
All such policies: (a) are in full force and effect; (b) are sufficient for
compliance in all material respects with all requirements of Law and of all
material agreements to which STC is a party; and (c) to STC's knowledge, are
valid, outstanding, and enforceable policies and the policy holder is not in
default in any material respect thereunder.
3.18. Reports.
All material returns, reports and statements that the STC Stations
are currently required to file with the FCC or any governmental agency have been
timely filed, and all reporting requirements of the FCC and other governmental
authorities having jurisdiction thereof have been complied with in all material
respects. All of such reports, returns and statements are complete and correct
in all material respects as filed. To STC's knowledge, all documents required by
the FCC to be deposited by STC in its public files (as defined in the rules and
regulations of the FCC) during the period of operation of the STC Stations by
STC have been deposited therein.
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3.19. Affiliated Transactions.
Except as set forth in Schedule 3.19, the STC Party is not now, and
-------------
during the past three (3) years has not been, a party, directly or indirectly,
to any material contract, lease, arrangement or transaction relating to its STC
Stations, whether for the purchase, lease or sale of property, for the rendition
of services or otherwise, with any Affiliate of the STC Party, or any officer,
director, employee, proprietor, partner or shareholder of the STC Party
(collectively, "STC Affiliated Transactions"). None of the STC Affiliated
Transactions which are identified on Schedule 3.19 contains terms and conditions
-------------
which are in the aggregate significantly less favorable to the STC Party and as
would be obtained in a comparable arms length transaction or transaction which
would not have occurred but for the relationship between the parties.
3.20. Special Purpose.
Except for Liabilities incurred in connection with the organization
and incorporation of STCBV and STCBV Sub and the transactions contemplated by
this Agreement and the ▇▇▇▇▇▇▇▇ Agreement, neither STCBV nor STCBV Sub has not
incurred, directly or indirectly, any Liabilities or engaged in any business
activities of any type whatsoever or entered into any agreements or arrangements
with any Person.
3.21. Availability of Funds.
STC will have available on the Closing Date sufficient funds to
enable it to consummate the transactions contemplated hereby and repay the
Burlington Financing Amount (less the Cash Consideration).
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES BY HAT
HAT represents and warrants to the STC Parties as follows:
4.1. Organization and Standing.
HAT is duly organized, validly existing and in good standing under
the laws of the state of its organization and is or will be prior to the Closing
Date duly qualified to do business and is or will be prior to the Closing Date
in good standing in any jurisdiction where the HAT Stations are located and
operated and in each other jurisdiction where and at such time as such
qualification is necessary, except for those jurisdictions where the failure to
be so qualified would not, individually or in the aggregate, have a Material
Adverse Effect on the HAT Stations. HAT has the corporate power and authority to
own, lease and otherwise
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to hold and operate the HAT Assets, to carry on the business of the HAT Stations
as now conducted, and to enter into and perform the terms of this Agreement, the
HAT Documents to which HAT is a party and the transactions contemplated hereby
and thereby.
4.2. Authorization.
The execution, delivery and performance of this Agreement and of the
HAT Documents to which HAT is a party, and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary corporate action (none of which actions has been modified or rescinded
and all of which actions are in full force and effect). This Agreement
constitutes, and upon execution and delivery of the HAT Documents to which HAT
is a party will constitute, valid and binding agreements and obligations of HAT,
enforceable against HAT in accordance with their respective terms, except as the
same may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws of general applicability relating to or affecting creditors'
rights generally and by the application of general principles of equity.
4.3. Compliance with Laws.
To HAT's knowledge, HAT is in material compliance with all Laws
applicable to the HAT Assets and to the business and operations of the HAT
Stations. HAT has obtained and holds all material permits, licenses and
approvals (none of which has been modified or rescinded and all of which are in
full force and effect) from all Governmental Authorities necessary in order to
conduct the operations of the HAT Stations as presently conducted.
4.4. Consents and Approvals; No Conflicts.
4.4.1. The execution and delivery of this Agreement, and the
performance of the transactions contemplated herein by HAT, will not require any
consent, approval, authorization or other action by, or filing with or
notification to, any Person or Governmental Authority, except as follows: (a)
filings required under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇, (b) consents to the assignment of the
FCC Licenses by the FCC, (c) filings, if any, with respect to real estate
transfer taxes, (d) certain of the Station Contracts may be assigned only with
the consent of third parties, as specified in Schedule 4.4, (e) filings with the
------------
Securities and Exchange Commission, and (f) under H-A's indenture for certain of
H-A's bonds, H-A's Board of Directors must deliver to the trustee a resolution
determining that the consideration to be received for the HAT Stations is fair
market value and under H-A's bank credit agreement, H-A may not acquire
additional television stations unless H-A delivers certain certificates and
environmental reports to the agent bank as well as evidence that
-32-
H-A will not become liable for material Tax or ERISA liabilities as a result of
such acquisition.
4.4.2. Assuming all consents, approvals, authorizations and other
actions described in Section 4.4.1 have been obtained and all filings and
-------------
notifications described in Section 4.4.1 have been made, the execution, delivery
-------------
and performance of this Agreement and the HAT Documents to which HAT is a party
do not and will not (a) conflict with or violate in any material respect any Law
applicable to HAT, the HAT Assets or HAT Stations or by which any of the HAT
Assets or HAT Stations is subject or affected, (b) conflict with or result in
any breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) of any of HAT's Station Contracts or other
material agreements to which HAT is a party or by which HAT is bound or to which
any of the HAT Assets or HAT Stations is subject or affected, (c) result in the
creation of any Encumbrance upon the HAT Assets, or (d) conflict with or violate
the organizational documents of HAT.
4.5. Financial Statements; Undisclosed Liabilities.
4.5.1. HAT has provided to the STC Parties unaudited balance sheets
of the HAT Stations as of December 31, 1997 (the "HAT Balance Sheets"), and
unaudited statements of income and operating cash flows for the HAT Stations for
the twelve (12) month period ending December 31, 1997. Such financial
statements (a) present fairly in all material respects the financial condition
of the HAT Stations as of the date and the results of operations and operating
cash flows for the period indicated, and (b) have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
(except that the financial statements referred to in this Section 4.5.1 do not
-------------
contain all footnotes and cash flow information from investing and financing
activities required under generally accepted accounting principles and are
subject to customary year-end adjustments). To the knowledge of HAT, the
Accounts Receivable of HAT shown on the balance sheets described in this Section
-------
4.5 and the WDTN Receivables have been collected or are collectible in amounts
---
not less than the amounts thereof carried on the books of HAT, except to the
extent of the allowance for doubtful accounts shown on such balance sheets.
4.5.2. There exist no Liabilities of the HAT Stations relating to,
or arising out of, the business or operations of the HAT Stations, contingent or
absolute, matured or unmatured, known or unknown, except (a) as reflected on the
HAT Balance Sheets and (b) for Liabilities that (i) were incurred after the
Current Balance Sheet Date in the Ordinary Course of Business, or (ii) were not
required to be reflected on the Balance Sheets of HAT in accordance with
generally accepted accounting principles applied on a consistent basis.
-33-
4.6. Absence of Certain Changes or Events.
Except as set forth and described in Schedule 4.6, since the Current
------------
Balance Sheet Date, there has been no Material Adverse Effect on the HAT
Stations. Since the Current Balance Sheet Date, the business of the HAT
Stations has been conducted in the Ordinary Course of Business, and HAT has not,
with respect to the HAT Stations or HAT Assets, (a) incurred any extraordinary
loss of, or injury to, any of the HAT Assets as the result of any fire,
explosion, flood, windstorm, earthquake, labor trouble, riot, accident, act of
God or public enemy or armed forces, or other casualty; (b) incurred, or become
subject to, any Liability, except current Liabilities incurred in the Ordinary
Course of Business; (c) discharged or satisfied any Encumbrance or paid any
Liability other than current Liabilities shown in the HAT Balance Sheets,
current Liabilities incurred since the Current Balance Sheet Date in the
Ordinary Course of Business, and Liabilities (including, without limitation,
partial and complete prepayments) arising under any credit or loan agreement
between HAT and its lenders; (d) mortgaged, pledged or subjected to any
Encumbrance any of the HAT Assets (except for Permitted Encumbrances); (e) made
any material change in any method of accounting or accounting practice; (f)
sold, leased, assigned or otherwise transferred any of its material HAT Assets
other than obsolete HAT Assets which have been replaced by suitable
replacements; (g) made any material increase in compensation or benefits payable
to any employee other than in the Ordinary Course of Business; or (h) made any
agreement to do any of the foregoing.
4.7. Absence of Litigation.
As of the date hereof, except as set forth in Schedule 4.7, there is
------------
no material or, to HAT's knowledge, immaterial action, suit, investigation,
claim, arbitration, litigation or similar proceeding, nor any order, decree or
judgment pending or, to HAT's knowledge, threatened against HAT, the HAT Assets
or HAT Stations before any Governmental Authority.
4.8. Assets.
Except for the HAT Excluded Assets, the HAT Assets include all of the
assets or property used or useful in the businesses of the HAT Stations as
presently operated. Except for leased or licensed HAT Assets, HAT is the owner
of, and has good title to, the HAT Assets free and clear of any Encumbrances,
except for Permitted Encumbrances (including, without limitation, those items
set forth on Schedule 4.8). At the Closing, the STC Exchange Entities shall
------------
acquire good title to, and all right, title and interest in and to the HAT
Assets, free and clear of all Encumbrances, except for the Permitted
Encumbrances.
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4.9. FCC Matters.
4.9.1. HAT holds the FCC Licenses listed as held by HAT on Schedule
--------
2.3.1. The FCC Licenses of HAT contained on Schedule 2.3.1 constitute all of
----- --------------
the licenses, permits and authorizations from the FCC that are required for the
business and operations of WDTN and WNAC. Except as set forth on Schedule 4.9,
------------
such FCC Licenses are valid and in full force and effect through the dates set
forth on Schedule 2.3.1, unimpaired by any condition, other than as set forth in
--------------
such FCC Licenses. Except as set forth on Schedule 4.9, no application, action
------------
or proceeding is pending for the renewal or modification of any of HAT's FCC
Licenses, and, except for actions or proceedings affecting television broadcast
stations generally, no application, complaint, action or proceeding is pending
or, to HAT's knowledge, threatened that may result in the (a) the revocation,
modification, non-renewal or suspension of any of HAT's FCC Licenses, or (b) the
issuance of a cease-and-desist order. Except as set forth in Schedule 4.9, HAT
------------
has no knowledge of any facts, conditions or events relating to HAT or the HAT
Stations that would reasonably be expected to cause the FCC to revoke any of the
FCC Licenses for the HAT Stations or not to grant any pending applications for
renewal of any FCC Licenses for the HAT Stations or to deny the assignment of
the FCC Licenses of HAT to STC License Company as provided for in this
Agreement.
4.9.2. Except as disclosed in Schedule 4.9, HAT is, and pending the
------------
Closing will remain legally, financially and otherwise qualified under the
Communications Act and all rules, regulations and policies of the FCC to acquire
and operate the STC Stations. Except as disclosed in Schedule 4.9, there are no
------------
facts or proceedings which would reasonably be expected to disqualify HAT under
the Communications Act or otherwise from acquiring or operating any of the STC
Stations or would cause the FCC not to approve the assignment of the FCC
Licenses of STC License Company to HAT. Except as disclosed in Schedule 4.9,
------------
HAT has no knowledge of any fact or circumstance relating to HAT or any
Affiliate of HAT that would reasonably be expected to (a) cause the filing of
any objection to the assignment of the FCC Licenses for the STC Stations from
STC License Company to HAT, or (b) lead to a delay in the processing by the FCC
of the applications for such assignment. Except as disclosed in Schedule 4.9
------------
and except for existing waivers pertaining to the STC Stations, no waiver of any
FCC rule or policy is necessary to be obtained for the grant of the applications
for the assignment of the FCC Licenses for the STC Stations from STC License
Company to HAT, nor will processing pursuant to any exception or rule of
general applicability be requested or required in connection with the
consummation of the transactions herein.
-35-
4.10. Real Property.
4.10.1. HAT has good and marketable fee simple title to all fee
estates included in the Real Property of HAT and good title to all other owned
Real Property of HAT, in each case free and clear of all Encumbrances, except
for Permitted Encumbrances (including, without limitation, those items listed on
Schedule 4.10).
-------------
4.10.2. HAT has a valid leasehold interest in all Leased Property
listed as leased by HAT in Schedule 2.3.2. Schedule 2.3.2 lists all leases and
-------------- --------------
subleases pursuant to which any of such Leased Property is leased by HAT in
connection with the business and operations of the HAT Stations. HAT is the
owner and holder of all such Leased Property purported to be granted by such
leases and subleases. Each such lease and sublease is valid as to HAT
thereunder and, to HAT's knowledge valid as to any other party thereto, and is
in full force and effect and, to HAT's knowledge, constitutes a legal and
binding obligation of, and is legally enforceable against HAT and each other
party thereto and grants the leasehold interest it purports to grant, including
any rights to nondisturbance and peaceful and quiet enjoyment that may be
contained therein. The lessees and sublessees are, and to the knowledge of HAT,
all other parties are, in compliance in all material respects with the
provisions of such leases and subleases.
4.10.3. The Real Property and the Leased Property of HAT listed in
Schedule 2.3.2 constitute all of the real property owned, leased or used in the
--------------
business and operations of the HAT Stations which is material to the business
and operations of the HAT Stations.
4.10.4. No portion of the Real Property of HAT or any building,
structure, fixture or improvement thereon is the subject of, or affected by, any
condemnation, eminent domain or inverse condemnation proceeding currently
instituted or pending or, to the knowledge of HAT, threatened. To the knowledge
of HAT, and to the extent that such documents are in the possession of HAT, HAT
has delivered to STC true, correct and complete copies of the following
documents with respect to its Real Property and Leased Property as identified in
Schedule 4.10: (i) deeds, by which HAT has received a fee interest in any of
-------------
such Real Property; (ii) leases for all of its Leased Property; (iii) title
insurance policies or commitments; (iv) surveys; and (v) inspection reports or
other instruments or reports, including, without limitation, any phase I or
phase II environmental reports or other similar environmental reports, surveys
or assessments (including any and all amendments and other modifications of such
instruments).
-36-
4.11. Intellectual Property.
HAT possesses adequate rights, licenses and authority to use all
Intellectual Property necessary to conduct the business of the HAT Stations as
presently conducted. HAT has good title to all Intellectual Property
maintained, owned, leased or used in connection with the business and operations
of the HAT Stations, free and clear of any Encumbrances, except for Permitted
Encumbrances. HAT is not obligated to pay any royalty or other fees to anyone
with respect to the Intellectual Property of HAT. HAT has not received any
written notice to the effect that any service rendered by HAT relating to the
business of the HAT Stations may infringe, or that HAT is otherwise infringing,
on any intellectual property right or other legally protectable right of
another. No director, officer or employee of HAT has any interest in any
Intellectual Property.
4.12. Station Contracts.
Complete and correct copies of Station Contracts of HAT set forth in
Schedules 2.3.5, 2.3.6, 2.3.8 and 2.3.9 (which schedules, as to HAT, are true
---------------------------------------
and correct in all material respects) have been made available to STC and (a)
each such material Station Contract and, to HAT's knowledge, each such
immaterial Station Contract, is in full force and effect and constitutes a
legal, valid and binding obligation of HAT, and, to HAT's knowledge, of each
other party thereto; (b) HAT is not in breach or default in any material respect
of the terms of any such Station Contract; (c) none of the material rights of
HAT under any such Station Contract will be subject to termination, nor will a
default occur, as a result of the consummation of the transactions contemplated
hereby, except to the extent that failure to obtain the prior consent to
assignment thereof of any party thereto shall or could be interpreted to
constitute a termination or modification of or a default under any such Station
Contract; and (d) to the knowledge of HAT, no other party to any such Station
Contract is in breach or default in any material respect of the terms
thereunder.
4.13. Taxes.
HAT has (or, in the case of returns becoming due after the date
hereof and on or before the Closing Date, will have prior to the Closing Date)
duly filed all material Tax Returns required to be filed by HAT on or before the
Closing Date with respect to all material applicable Taxes. In the case of any
such Tax Returns which receive an extension for their date of filing, such Tax
Returns will be considered due on, and not considered required to be filed
before, the extended due date. All such Tax Returns are (or, in the case of
returns becoming due after the date hereof and on or before the Closing Date,
will be) true and complete in all material respects. HAT has: (a) paid all Taxes
due to any Governmental Authority as indicated on such Tax Returns; or (b)
established (or, in the case of amounts
-37-
becoming due after the date hereof, prior to the Closing Date will have
established) adequate reserves (in conformity with generally accepted accounting
principles consistently applied) for the payment of such Taxes.
4.14. Employee Benefit Plans.
4.14.1. Schedule 4.14 lists all Plans and Benefit Arrangements
-------------
maintained by or contributed to by HAT for the benefit of the employees of the
HAT Stations (collectively referred to as "HAT Benefit Plans") (the STC Benefit
Plans and the HAT Benefit Plans are sometimes individually referred to herein as
the "Benefit Plans"). Each HAT Benefit Plan has been maintained in material
compliance with its terms and with ERISA, the Code and other applicable Laws.
4.14.2. Schedule 4.14 sets forth a list of all Qualified Plans
-------------
maintained by or contributed to by HAT for the benefit of the employees of the
HAT Stations. All such Qualified Plans and any related trust agreements or
annuity agreements (or any other funding document) have been maintained in
material compliance with ERISA and the Code (including, without limitation, the
requirements for tax qualification described in Section 401 thereof), other than
any Multiemployer Plan. To HAT's knowledge, any trusts established under such
Plans are exempt from federal income taxes under Section 501(a) of the Code.
4.14.3. Schedule 4.14 lists all funded Welfare Plans of HAT that
-------------
provide benefits to current or former employees of the HAT Stations or its
beneficiaries. To HAT's knowledge, the funding under each such Welfare Plan
does not exceed and has not exceeded the limitations under Sections 419A(b) and
419A(c) of the Code. To HAT's knowledge, HAT is not subject to taxation on the
income of any such Welfare Plan's welfare benefit fund (as such term is defined
in Section 419(e) of the Code) under Section 419A(g) of the Code.
4.14.4. HAT has no post-retirement medical, life insurance or other
benefits promised, provided or otherwise due now or in the future to current,
former or retired employees of the HAT Stations.
4.14.5. To HAT's knowledge, except as set forth in Schedule 4.14,
-------------
HAT has (a) filed or caused to be filed all returns and reports on HAT's Plans
that they are required to file and (b) paid or made adequate provision for all
fees, interest, penalties, assessments or deficiencies that have become due
pursuant to those returns or reports or pursuant to any assessment or adjustment
that has been made relating to those returns or reports. All other fees,
interest, penalties and assessments that are payable by or for HAT have been
timely reported, fully paid and discharged. There are no unpaid fees, penalties,
interest or assessments due from HAT or from any other person that are or could
become an Encumbrance on any of the HAT Assets or could otherwise adversely
affect the businesses of the
-38-
HAT Stations or HAT Assets. To HAT's knowledge, HAT has collected or withheld
all amounts that are required to be collected or withheld by it to discharge its
obligations, and all of those amounts have been paid to the appropriate
Governmental Authority or set aside in appropriate accounts for future payment
when due. HAT has furnished to STC true and complete copies of all documents
setting forth the terms and funding of each of HAT's Plans.
4.14.6. Except as set forth in Schedule 4.14, neither HAT nor any
-------------
ERISA Affiliate of HAT has ever sponsored or maintained, had any obligation to
sponsor or maintain, or had any liability (whether actual or contingent, with
respect to any of its assets or otherwise) with respect to any of HAT's Plans
subject to Section 302 of ERISA or Section 412 of the Code or Title IV of ERISA
(including any Multiemployer Plan). Neither HAT nor any ERISA Affiliate of HAT
(since January 1, 1989) has terminated or withdrawn from or sought a funding
waiver with respect to any plan subject to Title IV of ERISA, and no facts exist
that could reasonably be expected to cause such actions in the future; no
accumulated funding deficiency (as defined in Code Section 412), whether or not
waived, exists with respect to any such plan; no reportable event (as defined in
ERISA Section 4043) has occurred with respect to any such plan (other than
events for which reporting is waived); all costs of any such plans have been
provided for on the basis of consistent methods in accordance with sound
actuarial assumptions and practices, and the assets of each such plan, as of its
last valuation date, exceeded its "Benefit Liabilities" (as defined in ERISA
Section 4001(a)(16)); and, since the last valuation date for each such plan, no
such plan has been amended or changed to increase the amounts of benefits
thereunder and, to the knowledge of HAT, there has been no event that would
reduce the excess of assets over benefit liabilities; and except as set forth in
Schedule 4.14, neither HAT nor any ERISA Affiliate of HAT has ever made or been
-------------
obligated to make, or reimbursed or been obligated to reimburse another employer
for, contributions to any Multiemployer Plan of HAT.
4.14.7. No claims (other than for benefits in the Ordinary Course
of Business) or lawsuits are pending or, to the knowledge of HAT, threatened by,
against, or relating to any of its Benefit Plans. To HAT's knowledge, the HAT
Benefit Plans are not presently under audit or examination (nor has notice been
received of a potential audit or examination) by the IRS, the Department of
Labor, or any other governmental agency or entity and no matters are pending
with respect to any Qualified Plan of HAT under the IRS's Voluntary Compliance
Resolution program, its Closing Agreement Program, or other similar programs.
4.14.8. With respect to each Plan of HAT, there has occurred no
non-exempt "prohibited transaction" (within the meaning of Section 4975 of the
Code) or transaction prohibited by Section 406 of ERISA or breach of any
fiduciary duty described in Section 404 of ERISA that would, if successful,
result in any liability for HAT.
-39-
4.14.9. HAT has no liability with respect to any employee benefit
plan of HAT that is not a HAT Benefit Plan (exclusive of severance arrangements
and retention agreements) or with respect to any employee benefit plan sponsored
or maintained (or which has been or should have been sponsored or maintained or
with respect to which there has been an obligation to do so) by any ERISA
Affiliate of HAT.
4.14.10. All group health plans of HAT and its ERISA Affiliates
covering any current or former employees of the HAT Stations have been operated
in material compliance with the requirements of Sections 4980B (and its
predecessor) and 5000 of the Code, and HAT has provided, or will have provided
before the Closing Date, to individuals entitled thereto all required notices
and coverage pursuant to Section 4980B with respect to any "qualifying event"
(as defined therein) occurring before or on the Closing Date.
4.15. Labor Relations.
Schedule 4.15 contains a true and complete list of all employees
-------------
engaged in the business or operations of the HAT Stations as of the date set
forth on the list, together with such employee's position, salary and date of
hire. Schedule 4.15 lists all written employment contracts with any such
-------------
employees and all written agreements, plans, arrangements, commitments and
understandings pursuant to which HAT has severance obligations with respect to
such employees. Except as set forth on Schedule 4.15, no labor union or other
-------------
collective bargaining unit represents or, to HAT's knowledge, claims to
represent, any of the employees of the HAT Stations. There are no strikes, work
stoppages, grievance proceedings, union organization efforts, or other
controversies pending between HAT and any union or collective bargaining unit
representing (or, to HAT's knowledge, claiming to represent) any employees of
the HAT Stations. HAT is in compliance with all Laws relating to the employment
of employees of the HAT Stations or the workplace of the HAT Stations,
including, without limitation, provisions relating to wages, hours, collective
bargaining, safety and health, work authorization, equal employment opportunity,
immigration and the withholding of income taxes, unemployment compensation,
worker's compensation, employee privacy and right to know and social security
contributions, except for any noncompliance which would not have a Material
Adverse Effect on the HAT Stations. Except as set forth on Schedule 4.15, there
-------------
are no collective bargaining agreements relating to the HAT Stations or the
business and operations thereof.
4.16. Environmental Matters.
4.16.1. Schedule 4.16 contains a true and complete list and brief
-------------
summary of all material reports, audits and other documents relating to the
environmental condition of the Real Property of HAT in HAT's possession.
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4.16.2. Except as set forth in Schedule 4.16, to the knowledge of
-------------
HAT (which knowledge is based on the items set forth on Schedule 4.16), HAT is
-------------
in material compliance with, and the Real Property of HAT and all improvements
thereon are in material compliance with, all Environmental Laws.
4.16.3. Except as set forth in Schedule 4.16, there are no pending
-------------
or, to the knowledge of HAT, threatened actions, suits, claims, or other legal
proceedings based on (and HAT has not received any written notice of any
complaint, order, directive, citation, notice of responsibility, notice of
potential responsibility, or information request from any Governmental Authority
arising out of or attributable to): (a) the current or past presence at any
part of HAT's Real Property of Hazardous Materials; (b) the current or past
release or threatened release into the environment from HAT's Real Property
(including, without limitation, into any storm drain, sewer, septic system or
publicly owned treatment works) of any Hazardous Materials; (c) the off-site
disposal of Hazardous Materials originating on or from HAT's Real Property or
the HAT Assets or businesses of the HAT Stations; (d) any facility operations or
procedures of the HAT Stations which do not conform to requirements of the
Environmental Laws; or (e) any violation of Environmental Laws at any part of
HAT's Real Property arising from activities of the HAT Stations involving
Hazardous Materials. To the knowledge of HAT, HAT has been duly issued all
material permits, licenses, certificates and approvals required under any
Environmental Law.
4.17. Insurance.
Schedule 4.17 contains a true and complete list and brief summary of
-------------
all policies of title, property, fire, casualty, liability, life, workmen's
compensation, libel and slander, and other forms of insurance of any kind
relating to the HAT Assets or the business and operations of the HAT Stations.
All such policies: (a) are in full force and effect; (b) are sufficient for
compliance in all material respects with all requirements of Law and of all
material agreements to which HAT is a party; and (c) to HAT's knowledge, are
valid, outstanding, and enforceable policies and the policy holder is not in
default in any material respect thereunder.
4.18. Reports.
All material returns, reports and statements that the HAT Stations
are currently required to file with the FCC or any governmental agency have been
timely filed, and all reporting requirements of the FCC and other governmental
authorities having jurisdiction thereof have been complied with in all material
respects. All of such reports, returns and statements are complete and correct
in all material respects as filed. To HAT's knowledge, all documents required by
the FCC to be deposited by HAT in its public files (as defined in the rules and
regulations of
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the FCC) during the period of operation of the HAT Stations by HAT have been
deposited therein.
4.19. Affiliated Transactions.
Except as set forth in Schedule 4.19, HAT is not now, and during the
-------------
past three (3) years has not been, a party, directly or indirectly, to any
material contract, lease, arrangement or transaction relating to the HAT
Stations, whether for the purchase, lease or sale of property, for the rendition
of services or otherwise, with any Affiliate of HAT, or any officer, director,
employee, proprietor, partner or shareholder of HAT (collectively, "HAT
Affiliated Transactions") (STC Affiliated Transactions and HAT Affiliated
Transactions are sometimes collectively referred to herein as the "Affiliated
Transactions"). None of the HAT Affiliated Transactions which are identified on
Schedule 4.19 contains terms and conditions which are in the aggregate
-------------
significantly less favorable to HAT and as would be obtained in a comparable
arms length transaction or transaction which would not have occurred but for the
relationship between the parties.
ARTICLE 5.
PRE-CLOSING FILINGS
5.1. Applications for FCC Consent.
Within five (5) business days following the execution of this
Agreement, the parties hereto shall jointly file applications for the Stations
with the FCC requesting consent to the assignment of the FCC Licenses for the
Stations as contemplated herein (the "FCC Applications"). Each party hereto
will diligently take, or fully cooperate in the taking of, all necessary and
proper steps, and provide any additional information reasonably requested in
order to obtain promptly the requested consents and approvals of the FCC
Applications by the FCC.
5.2. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇.
Within five (5) business days following the execution of this
Agreement, the parties hereto shall complete any filing that may be required
pursuant to ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ (each an "HSR Filing"). Each party hereto shall
diligently take, or fully cooperate in the taking of, all necessary and proper
steps, and provide any additional information reasonably requested in order to
comply with, the requirements of ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇.
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5.3. Non-Required Actions.
No party hereto shall have any obligation to take any steps pursuant
to Section 5.1 or Section 5.2 which would require the divestiture of any
----------- -----------
business or assets of any party hereto or any Affiliate thereof.
ARTICLE 6.
COVENANTS AND AGREEMENTS OF THE PARTIES
Each party covenants and agrees with the other party as follows:
6.1. Negative Covenants.
Pending and prior to the Closing, such party will not without the
prior written consent of the other party (which consent will not be unreasonably
withheld, delayed or conditioned, except in the case of matters referred to in
Sections 6.1.7, 6.1.9 and 6.1.11, with respect to which the other party's
--------------------------------
consent may be withheld in its sole and absolute discretion), do or agree to do
any of the following:
6.1.1. Dispositions; Mergers.
Sell, assign, lease or otherwise transfer or dispose of any of such
party's Assets other than at substantially fair market value and in the Ordinary
Course of Business; or merge or consolidate with or into any other entity or
enter into any contracts or agreements relating thereto.
6.1.2. Accounting Principles and Practices.
Change or modify any accounting principles or practices or
any method of applying such principles or practices.
6.1.3. Trade-out Agreements.
(a) As to WPTZ and WNNE, enter into or renew any Trade-
out Agreement (excluding any film barter agreements) that would be binding on
the other party after the Closing Date, except in the Ordinary Course of
Business and which requires the provision of broadcast time having a value of
less than (a) Twenty-Five Thousand Dollars ($25,000) individually, and (b)
together with existing Trade-out Agreements still in effect as of the Closing
Date, Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate as of the
Closing Date.
(b) As to KSBW and WDTN, enter into or renew any Trade-
out Agreements (excluding any film barter agreements) that would be
-43-
binding on the other party after the Closing Date, except in the Ordinary Course
of Business which requires the provision of broadcast time having the value of
less than Five Thousand Dollars ($5,000) individually and together with existing
Trade-out Agreements still in effect as of the Closing Date, Fifty Thousand
Dollars ($50,000) in the aggregate as of the Closing Date.
6.1.4. Broadcast Time Sales Agreements.
Enter into or renew any Time Sales Agreement except in the Ordinary
Course of Business and which are for cash at prevailing rates for a term not
exceeding twelve (12) months.
6.1.5. Network Affiliation Agreements and TBAs.
Acquire or enter into or renew any TBA or network
affiliation agreement.
6.1.6. Additional Agreements.
Acquire or enter into any new Station Contracts not referred to in
Sections 6.1.3, 6.1.4 or 6.1.5 above, or renew, extend, amend, alter, modify or
------------------------------
otherwise change any existing Station Contract, except in the Ordinary Course of
Business (collectively, "Additional Agreements"); provided, however, such party
-------- -------
shall not enter into (a) any Program Contract for any Station which will be
binding on the other party after the Closing Date, or (b) any other Station
Contract requiring payments by such party under each Station Contract in excess
of Five Thousand Dollars ($5,000) or Seventy-Five Thousand Dollars ($75,000) in
the aggregate.
6.1.7. Breaches.
Do or omit to do any act which will cause a material breach
of any Station Contract.
6.1.8. Employee Matters.
(a) Enter into or become subject to any employment, labor,
union, or professional service contract not terminable at will, or any bonus,
pension, insurance, profit sharing, incentive, deferred compensation, severance
pay, retirement, hospitalization, employee benefit, or other similar plan; or
increase the compensation payable or to become payable to any employee, or pay
or arrange to pay any bonus payment to any employee, except in the Ordinary
Course of Business.
-44-
(b) As to KSBW and WDTN, hire, retain or offer employment
to any new employees.
6.1.9. Actions Affecting FCC Licenses.
Take any action which may jeopardize the validity or
enforceability of or rights under any FCC Licenses.
6.1.10. Programming.
Program or broadcast any Program Contract or syndicated
program, except in the Ordinary Course of Business and consistent with the terms
and conditions of such Program Contracts.
6.1.11. Encumbrances.
Create, assume or permit to exist any Encumbrances upon any
of the Assets except for Permitted Encumbrances and Encumbrances that will be
discharged prior to or on the Closing Date.
6.1.12. Transactions With Affiliates.
Enter into any transaction with any Affiliate of such party
that will be binding upon the other party on or after the Closing Date, except
for transactions not otherwise prohibited by this Section 6.1 and transactions
-----------
between and among Stations operating in the same DMA in the Ordinary Course of
Business, in each case on arm's length terms.
6.2. Affirmative Covenants.
Pending and prior to the Closing, each party will:
6.2.1. Preserve Existence.
Preserve its corporate existence and business organization
intact, maintain its existing franchises and licenses, use commercially
reasonable efforts to preserve for the other party the relationships of its
Stations with suppliers, customers, employees and others with whom its Stations
have business relationships, and keep all of its Assets substantially in their
present condition, ordinary wear and tear excepted.
6.2.2. Normal Operations.
Subject to the terms and conditions of this Agreement
(including, without limitation, Section 6.1), (a) carry on the businesses and
-----------
-45-
activities of its Stations, including without limitation, promotional
activities, the sale of advertising time, entering into other contracts and
agreements, or purchasing and scheduling of programming, in the Ordinary Course
of Business; (b) pay or otherwise satisfy all obligations (cash and barter) of
its Stations in the Ordinary Course of Business; provided, however, such party
-------- -------
shall cause to be brought current as of the Closing Date all payments that are
due and payable under its Station Contracts as originally contracted; (c)
maintain books of account, records, and files with respect to the business and
operations of its Stations in substantially the same manner as heretofore; and
(d) maintain its Assets in customary repair, maintenance and condition, except
to the extent of normal wear and tear, and repair or replace, consistently with
the Ordinary Course of Business, any of its Assets that may be damaged or
destroyed; notwithstanding the foregoing, each party acknowledges that the other
party shall not be obligated to spend any funds on capital expenditures after
the date hereof, except for the repair or replacement of its Assets that may be
damaged or destroyed or to comply with improvements required pursuant to the
environmental remediation described in Section 6.16.
------------
6.2.3. Maintain FCC Licenses.
Maintain the validity of its FCC Licenses, and comply in all
material respects with all requirements of such FCC Licenses and the rules and
regulations of the FCC.
6.2.4. Network Affiliation.
Use best efforts to maintain in full force and effect the
present network affiliation agreements for its Stations (and any and all
modifications and renewals thereof).
6.2.5. Station Contracts.
Pay and perform obligations in the Ordinary Course of Business
under its Station Contracts and under any Additional Agreements that shall be
entered into by such party pursuant to Section 6.1.6, in accordance with the
-------------
respective terms and conditions of such Station Contracts.
6.2.6. Taxes.
Pay or discharge all Taxes when due and payable.
6.2.7. Access.
Prior to the Closing and for a period of five (5) years after
the Closing Date (and to the extent permitted by the Clear Channel Agreements in
-46-
the case of HAT and to the extent permitted by the Heritage Agreement and the
▇▇▇▇▇▇▇▇ Agreement in the case of STC), cause to be afforded to representatives
of the other party reasonable access during normal business hours to offices,
properties, assets, books and records, contracts and reports of its Stations, as
the other party shall from time to time reasonably request; provided, however,
-------- -------
that (a) such investigation shall only be upon reasonable notice and shall not
unreasonably disrupt the personnel or operations of either party or its
Stations, and (b) under no circumstances shall either party be required to
provide access to the other party or any representative of the other party (i)
any information or materials subject to confidentiality agreements with third
parties required to be kept confidential by applicable Laws, or (ii) any
privileged attorney-client communications or attorney work product. All
requests for access to the offices, properties, assets, books and records,
contracts and reports of the Stations of either party shall be made to such
representatives as such party shall designate, who shall be solely responsible
for coordinating all such requests and all access permitted hereunder. Each
party acknowledges and agrees that neither it nor its representatives shall
contact any of the employees, customers, suppliers, partners, or other
associates or Affiliates of the other party, in connection with the transactions
contemplated hereby, whether in person or by telephone, mail or other means of
communication, without the specific prior written authorization of such
representatives of the other party. Subject to and in accordance with the terms
of this Section 6.2.7, each party shall cooperate in all reasonable respects
-------------
with the other party's request to conduct an audit of such party's financial
information as the other party may reasonably determine is necessary to satisfy
the other party's public company reporting requirements pursuant to the
Securities Act of 1933 or the Securities Exchange Act of 1934 including, without
limitation, (a) using commercially reasonable efforts to obtain the consent of
such party's auditors to permit the other party and the other party's auditors
to have access to such auditors' work papers, and (b) consenting to such access
by the other party. All costs and expenses incurred in connection with the
preparation of (and assimilation of relevant information for) any such financial
statements shall be paid by the requesting party.
6.2.8. Insurance.
Maintain in full force and effect all of its existing
casualty, liability, and other insurance in amounts not less than those in
effect on the date hereof.
6.2.9. Financial Statements.
Provide the other party with unaudited monthly statements of
assets and liabilities relating to the business and operations of its Stations,
and monthly statements of revenues and expenses reflecting the results of
business and
-47-
operations of its Stations for January 31, 1998 and for each month thereafter,
within thirty (30) days after the end of each such month. Such party further
agrees to provide the other party with weekly sales pacing reports for its
Stations.
6.2.10. Consents.
(a) Take all reasonable action required to obtain all
consents, approvals and agreements of any third parties necessary to authorize,
approve or permit the consummation of the transactions contemplated by this
Agreement, including, without limitation, any consent of the parties to the
Station Contracts designated as necessary in Schedule 3.4 and Schedule 4.4, as
------------ ------------
applicable, in order to consummate the transactions contemplated hereby
(collectively, the "Restricted Contracts"). Notwithstanding anything to the
contrary set forth in this Agreement or otherwise, to the extent that the
consent or approval of any third party is required under any Restricted
Contract, the party to such Restricted Contract shall only be required to use
reasonable efforts (not involving the payment by such party of any money to any
party to any such Restricted Contract) to obtain such consents and approvals,
and in the event that such party fails to obtain any such consent or approval,
the other party shall have no right to terminate this Agreement.
(b) Notwithstanding anything to the contrary in clause (a)
above, each party shall retain, until such time as any required consents shall
have been obtained by such party, all rights to and under any Station Contract
to which it is a party which requires the consent of any other party thereto for
assignment to the other party if such consent has not been obtained on the
Closing Date (the "Deferred Contract"). Until the assignment of the Deferred
Contract, (i) the party thereto shall continue to use all commercially
reasonable efforts and the other party shall cooperate to obtain the consent
and/or to remove any other impediments to such assignment, and (ii) the parties
agree to cooperate in any lawful arrangement to provide (to the extent permitted
without breach of such Deferred Contract) that the other party shall receive the
benefits of such interest after the Closing Date to the same extent as if it
were the party thereunder. If, subsequent to the Closing Date, the party to a
Deferred Contract shall obtain required consents to assign such Deferred
Contract to the other party, such Deferred Contract for which consent to assign
has been obtained shall at that time be deemed to be conveyed, granted,
bargained, sold, transferred, setover, assigned, released, delivered and
confirmed to the other party, without need of further action or of future
documentation.
6.2.11. Corporate Action.
Take all corporate action (including, without limitation, all
shareholder action), under the Law of any state having jurisdiction over such
party
-48-
necessary to effectuate the transactions contemplated by this Agreement and the
other agreements to which it is a party.
6.2.12. Environmental Audit.
Permit the other party and the other party's agents, as soon
as practical after the date hereof and upon the other party's request therefor,
access to the Real Property of such party and the Leased Property of such party
for the purpose of conducting, at the other party's expense, Phase I and Phase
II environmental audits. Any such environmental audits shall be conducted by a
reputable environmental investigatory firm of the other party's choice subject
to the reasonable approval of such party and in a manner as will not
unreasonably interfere with the normal business and operations of any of the
Stations.
6.2.13. ▇▇▇▇▇▇▇▇ Agreement.
As to STC, STC shall consummate the acquisition of the
Burlington Stations in accordance with the provisions of the ▇▇▇▇▇▇▇▇ Agreement
and promptly enforce all rights and remedies available to STC pursuant to the
▇▇▇▇▇▇▇▇ Documents.
6.3. Confidentiality.
The Recipient Party shall, at all times, maintain strict
confidentiality with respect to all documents and information furnished to such
party by or on behalf of the Transferring Party. Nothing shall be deemed to be
confidential information that: (a) is known to the Recipient Party at the time
of its disclosure to the Recipient Party; (b) becomes publicly known or
available other than through disclosure by the Recipient Party; (c) is received
by the Recipient Party from a third party not actually known by the Recipient
Party to be bound by a confidentiality agreement with or obligation to the
Transferring Party; or (d) is independently developed by the Recipient Party.
Notwithstanding the foregoing provisions of this Section 6.3, the Recipient
-----------
Party may disclose such confidential information (a) to the extent required or
deemed advisable to comply with applicable Laws; (b) to its officers, directors,
employees, representatives, financial advisors, attorneys, accountants, and
agents with respect to the transactions contemplated hereby (so long as such
parties agree to maintain the confidentiality of such information); and (c) to
any Governmental Authority in connection with the transactions contemplated
hereby. In the event this Agreement is terminated, each party will return to
the other party all documents and other material prepared or furnished by the
other party relating to the transactions contemplated hereunder, whether
obtained before or after the execution of this Agreement.
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6.4. Collection of Receivables.
At the Closing, STC shall assign the ▇▇▇▇▇▇▇▇ Receivables to
HAT for collection purposes only, and, within ten (10) business days after the
Closing Date, STC shall furnish to HAT a list of such ▇▇▇▇▇▇▇▇ Receivables by
accounts and the amounts then owing. HAT agrees, during the period of days
remaining between the date of the STC Transfer Date and one hundred fifty (150)
days from such date (the "▇▇▇▇▇▇▇▇ Collection Period"), without any requirement
to litigate to collect such ▇▇▇▇▇▇▇▇ Receivables, to use its reasonable efforts
(with at least the care and diligence HAT uses to collect its own accounts
receivable) to collect for STC such ▇▇▇▇▇▇▇▇ Receivables and to remit to
▇▇▇▇▇▇▇▇ on the fifth (5th) day following the last day of each month occurring
during the ▇▇▇▇▇▇▇▇ Collection Period (or, if any such day is a Saturday, Sunday
or holiday, on the next day on which banking transactions are resumed),
collections received by HAT with respect to such ▇▇▇▇▇▇▇▇ Receivables. HAT shall
not make any referral or compromise of any ▇▇▇▇▇▇▇▇ Receivable to a collection
agency or attorney for collection and shall not compromise for less than full
value any ▇▇▇▇▇▇▇▇ Receivable without the prior written consent of ▇▇▇▇▇▇▇▇. Any
▇▇▇▇▇▇▇▇ Receivable not collected by HAT within the ▇▇▇▇▇▇▇▇ Collection Period
shall revert to ▇▇▇▇▇▇▇▇. HAT shall reassign, without recourse to ▇▇▇▇▇▇▇▇, each
▇▇▇▇▇▇▇▇ Receivable and deliver to ▇▇▇▇▇▇▇▇, all records relating thereto on the
same day as HAT remits to ▇▇▇▇▇▇▇▇ the collections received. All payments in
respect of the ▇▇▇▇▇▇▇▇ Receivables received during the ▇▇▇▇▇▇▇▇ Collection
Period shall be first applied to the oldest balance then due on the ▇▇▇▇▇▇▇▇
Receivables unless the account debtor indicates in writing that payment is to be
applied otherwise due to a dispute over an Account Receivable. HAT agrees, upon
the reasonable request of STC, to furnish to STC and ▇▇▇▇▇▇▇▇ periodic reports
on the status of its ▇▇▇▇▇▇▇▇ Receivables. HAT shall have no right to set-off
any amounts collected for the ▇▇▇▇▇▇▇▇ Receivable for any amounts owed to HAT by
STC; provided, however, that HAT shall have the right to seek indemnification in
-------- -------
accordance with the terms and conditions of this Agreement.
6.5. Possession and Control.
Between the date hereof and the Closing Date, the Recipient
Party shall not directly or indirectly control, supervise or direct, or attempt
to control, supervise or direct, the business and operations of the Transferring
Party's Stations, and such operation, including complete control and supervision
of all programming, shall be the sole responsibility of the Transferring Party.
On and after the Closing Date, the Transferring Party shall have no control
over, or right to intervene, supervise, direct or participate in, the business
and operations of the Stations transferred to the Recipient Party.
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6.6. Risk of Loss.
The risk of loss or damage by fire or other casualty or cause
to the Assets of the Transferring Party until the Closing Date shall be upon the
Transferring Party. In the event of loss or damage prior to the Closing Date
with respect to which the Transferring Party has adequate replacement cost
insurance and which has not been restored, replaced, or repaired as of the
Closing Date and if the Recipient Party shall proceed with the Closing, then the
Recipient Party shall receive at the Closing the insurance proceeds or an
assignment of the right to receive such insurance proceeds, as applicable, to
which the Transferring Party otherwise would be entitled, whereupon the
Transferring Party shall have no further liability to the Recipient Party for
such loss or damage.
6.7. Public Announcements.
Each party shall consult with the other party before issuing
any press release or otherwise making any public statements with respect to this
Agreement or the transactions contemplated herein and shall not issue any such
press release or make any such public statement without the prior written
consent of the other party, which shall not be unreasonably withheld; provided,
--------
however, that a party may, without the prior written consent of the other party,
-------
issue such press release or make such public statement as may be required by Law
or any listing agreement with a national securities exchange to which such party
is a party if it has used all reasonable efforts to consult with the other party
and to obtain such party's consent but has been unable to do so in a timely
manner.
6.8. ▇▇▇▇▇▇▇▇ Employee Matters.
6.8.1. At the Closing, HAT shall offer employment to each of
the employees of WNNE and WPTZ (including those on leave of absence, whether
short-term, long-term, family, maternity, disability, paid, unpaid or other), at
a comparable salary, position and place of employment as held by each such
employee immediately prior to the Closing Date (such employees who are given
such offers of employment and accept such offers and are employed by HAT are
referred to herein as the "▇▇▇▇▇▇▇▇ Employees"). Nothing in this Section 6.8.1
-------------
is intended to guarantee employment for any ▇▇▇▇▇▇▇▇ Employee for any length of
time after the Closing Date.
6.8.2. Except as provided otherwise in this Section 6.8, STC
-----------
shall pay, discharge and be responsible for (a) all salary and wages arising out
of or relating to the employment of the employees of WNNE and WPTZ prior to the
Closing Date and (b) any employee benefits arising under the Benefit Plans of
STC and its Affiliates during the period prior to the Closing Date. From and
after the Closing Date, HAT shall pay, discharge and be responsible for all
salary, wages and
-51-
benefits arising out of or relating to the employment of the ▇▇▇▇▇▇▇▇ Employees
by HAT on and after the Closing Date. HAT shall be responsible for all severance
Liabilities, and all COBRA Liabilities for any ▇▇▇▇▇▇▇▇ Employees terminated by
HAT on or after the Closing Date.
6.8.3. HAT shall cause all ▇▇▇▇▇▇▇▇ Employees as of the
Closing Date to be eligible to participate in its "employee welfare benefit
plans" and "employee pension benefit plans" (as defined in Section 3(1) and 3(2)
of ERISA, respectively) to the extent required under the ▇▇▇▇▇▇▇▇ Agreement.
6.8.4. For purposes of any length of service requirements,
waiting periods, vesting periods or differential benefits based on length of
service in any such plan for which a ▇▇▇▇▇▇▇▇ Employee may be eligible after the
Closing, HAT shall ensure that, to the extent permitted by law, service by such
▇▇▇▇▇▇▇▇ Employee with the Heritage Subsidiaries, ▇▇▇▇▇▇▇▇, STC or any of their
respective Affiliates shall be deemed to have been service with HAT. In
addition, HAT shall ensure that each ▇▇▇▇▇▇▇▇ Employee receives credit under any
welfare benefit plan of HAT for any deductibles or co-payments paid by such
▇▇▇▇▇▇▇▇ Employee and his or her dependents for the current plan year under a
plan maintained by the Heritage Subsidiaries, ▇▇▇▇▇▇▇▇, STC or any of their
respective Affiliates. HAT shall grant credit to each ▇▇▇▇▇▇▇▇ Employee for all
sick leave in accordance with the policies of HAT applicable generally to its
employees after giving effect to service for STC as service for HAT. To the
extent taken into account in determining the Final Proration Amount, HAT shall
assume and discharge STC's Liabilities for the payment of all unused vacation
leave accrued by ▇▇▇▇▇▇▇▇ Employees as of the Closing Date. To the extent any
claim with respect to such accrued vacation leave is lodged against STC, with
respect to any ▇▇▇▇▇▇▇▇ Employee, HAT shall indemnify, defend and hold harmless
STC from and against any and all losses, directly or indirectly, as a result of,
or based upon or arising from the same.
6.8.5. As soon as practicable following the Closing Date,
HAT shall establish and maintain a defined contribution plan or plans (which may
be a preexisting plan or plans (the "HAT Retirement Plan") intended to be
qualified under Section 401(a) and 401(k) of the Code for the benefit of the
▇▇▇▇▇▇▇▇ Employees. Effective as of the Closing Date, STC shall cause
appropriate amendments to be made to its retirement savings plan (the "STC
Retirement Plan") to provide that the ▇▇▇▇▇▇▇▇ Employees shall be fully vested
in their accounts under the STC Retirement Plan. As soon as practicable after
the Closing Date, HAT shall take all necessary action to qualify the HAT
Retirement Plan under the applicable provisions of the Code (including but not
limited to Section 401), if it is not yet so qualified, and HAT and STC shall
make any and all filings and submissions to the appropriate governmental
agencies required to be made by them in connection with the transfer of assets
described hereafter. As soon as practicable following the earlier of the receipt
of a favorable determination letter from the Internal Revenue
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Service regarding the qualified status of both the STC Retirement Plan and the
HAT Retirement Plan (each as amended to the date of transfer) or sooner, if STC
and HAT so agree, STC shall cause to be transferred to the HAT Retirement Plan,
in cash, all of the individual account balances of ▇▇▇▇▇▇▇▇ Employees under the
STC Retirement Plan, including any outstanding plan participant loan receivables
allocated to such accounts.
6.8.6. HAT acknowledges and agrees that its obligations
pursuant to this Section 6.8 are in addition to, and not in limitation of, HAT's
-----------
obligation to assume the employment contracts set forth on Schedule 2.3.9.
--------------
6.8.7. Except as otherwise provided in this Section 6.8 or
-----------
in any employment, severance or retention agreements of any ▇▇▇▇▇▇▇▇ Employees,
all ▇▇▇▇▇▇▇▇ Employees shall be at-will employees, and HAT may terminate their
employment or change their terms of employment at will. No employee (or
beneficiary of any employee) of WPTZ or WNNE may ▇▇▇ to enforce the terms of
this Agreement, including specifically this Section 6.8, and no employee or
-----------
beneficiary shall be treated as a third party beneficiary of this Agreement.
Except to the extent provided for herein, HAT may cover the ▇▇▇▇▇▇▇▇ Employees
under existing or new benefit plans, programs, and arrangements, and may amend
or terminate any such plans, programs, or arrangements at any time.
6.9. Other Employee Matters.
6.9.1. Except for the ▇▇▇▇▇▇▇▇ Employees (who are addressed
in Section 6.8), at least five (5) days prior to the Closing Date, the Recipient
-----------
Party shall designate in writing which employees of the Transferring Party's
Stations the Recipient Party shall offer employment after the Closing Date (all
such employees shall be referred to herein as the "Designated Employees"; all
other employees shall be referred to herein as the "Non-Transferred Employees").
As of the Closing Date, the Recipient Party shall offer employment to each of
the Designated Employees (including those on leave of absence, whether short-
term, long-term, family, maternity, disability, paid, unpaid or other), on terms
and conditions set by the Recipient Party (such employees who are given such
offers of employment and accept such offers and are employed by the Recipient
Party are referred to herein as the "Transferred Employees"). Nothing in this
Section 6.9.1 is intended to guarantee employment for any Transferred Employee
-------------
for any length of time after the Closing Date.
6.9.2. Except as provided otherwise in this Section 6.9, the
-----------
Transferring Party shall pay, discharge and be responsible for (a) all salary
and wages arising out of or relating to the employment of the employees of its
Stations prior to the Closing Date, (b) all accrued and unpaid vacation pay, (c)
any employee benefits arising under the Benefit Plans of the Transferring Party
and its Affiliates
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during the period prior to the Closing Date and (d) all severance Liabilities
and all COBRA Liabilities for any Non-Transferred Employees (subject to the
Recipient Party's reimbursement obligations set forth in Section 6.9.8). From
-------------
and after the Closing Date, the Recipient Party shall pay, discharge and be
responsible for all salary, wages and benefits arising out of or relating to the
employment of the Designated Employees by the Recipient Party on and after the
Closing Date. The Recipient Party shall be responsible for all severance
Liabilities, and all COBRA Liabilities for any Designated Employees terminated
by the Recipient Party on or after the Closing Date.
6.9.3. For purposes of any length of service requirements,
waiting periods, vesting periods or differential benefits based on length of
service pursuant to any employment program provided by the Recipient Party in
any such plan for which a Transferred Employee may be eligible after the
Closing, the Recipient Party shall ensure that, to the extent permitted by law,
service by such Transferred Employee with the applicable Station or any
Affiliate of the Station shall be deemed to have been service with the Recipient
Party.
6.9.4. Each party acknowledges and agrees that its
obligations pursuant to this Section 6.9 are in addition to, and not in
-----------
limitation of, such party's obligation to assume the employment contracts of the
other party set forth on Schedule 2.3.9.
--------------
6.9.5. Except as otherwise provided in this Section 6.9 or
-----------
in any employment, severance or retention agreements of any Designated
Employees, all Designated Employees shall be at-will employees, and the
Recipient Party may terminate their employment or change their terms of
employment at will. No employee (or beneficiary of any employee) of the Stations
may ▇▇▇ to enforce the terms of this Agreement, including specifically this
Section 6.9, and no employee or beneficiary shall be treated as a third party
-----------
beneficiary of this Agreement. Except to the extent provided for herein, the
Recipient Party may cover the Designated Employees under existing or new benefit
plans, programs, and arrangements, and may amend or terminate any such plans,
programs, or arrangements at any time.
6.9.6. The Recipient Party agrees to reimburse the
Transferring Party for all severance Liabilities and COBRA Liabilities for Non-
Transferred Employees which are paid by the Transferring Party pursuant to
Section 6.9.2 and which are consistent with the Transferring Party's severance
-------------
policy in effect as of the date hereof and disclosed to the Recipient Party.
6.10. Disclosure Schedules.
(a) STC hereby acknowledges that for business reasons HAT has
not been able to deliver a complete set of the Schedules for the HAT Stations
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referred to herein prior to the date hereof. HAT covenants that HAT shall
deliver to STC and to STC's counsel a complete set of the Schedules for the HAT
Stations (and copies of all materials identified on the Schedules, as reasonably
required to support such Schedules or as otherwise requested by STC) within ten
(10) business days after the execution and delivery of this Agreement. On the
date of receipt, an officer of HAT shall certify in writing that the Schedules
(and supporting materials) delivered to STC and STC's counsel are complete and
correct. STC shall have ten (10) business days following the date of receipt by
STC and STC's counsel of the complete and correct set of the Schedules (and
supporting materials) for the HAT Stations (the "Schedule Review Period") to
review such Schedules and to determine in the good faith exercise of STC's
reasonable business judgment whether the items referenced therein are acceptable
to STC. If STC, after reasonable consultation with HAT, determines in the good
faith exercise of STC's reasonable business judgment that the items referred to
in the HAT Schedules are not acceptable, STC shall be entitled to terminate this
Agreement pursuant to the terms set forth in Section 11.2(b).
---------------
(b) The parties acknowledge and agree that each party shall
have the right from time to time after the date hereof to update or correct
solely Schedules 2.3.5, 2.3.6, 2.3.8, 2.3.9, 3.4, 4.4, 3.17 and 4.17 attached
-------------------------------------------------------------
hereto solely to reflect actions by such party (and, in the case of STC, actions
by ▇▇▇▇▇▇▇▇ or the Heritage Subsidiaries) after the date hereof which are not
prohibited by Section 6.1 hereof. The inclusion of any fact or item on a
-----------
Schedule referenced by a particular section in this Agreement shall, should the
existence of the fact or item or its contents, be relevant to any other section,
be deemed to be disclosed with respect to such other section whether or not an
explicit cross-reference appears in the Schedules.
6.11. Bulk Sales Laws.
Each party hereby waives compliance by the other party, in
connection with the transactions contemplated hereby, with the provisions of any
applicable bulk transfer laws.
6.12. Tax Matters.
6.12.1. Each party represents, warrants, covenants and agrees
with the other party that for tax purposes the exchange of Assets is not
effective until the Closing Date. The parties agree that all Tax returns and
reports shall be filed consistent with the sale of assets taking place as
aforesaid.
6.12.2. The parties intend that the following exchanges of
Assets pursuant to this Agreement shall qualify as "like kind" exchanges under
Section 1031 of the Code: (a) for the STC Exchange Entities, the exchange by the
-▇▇-
▇▇▇ ▇▇▇▇▇▇▇▇ Entities of KSBW for the HAT Assets, and (b) for HAT, the exchange
by HAT of the HAT Assets for the STC Assets. The parties acknowledge and agree
that the exchange by the STC Exchange Entities of WNNE and WPTZ is not intended
to qualify for the STC Exchange Entities as a "like kind" exchange under Section
1031 of the Code.
6.12.3. STC covenants with and warrants to HAT, and HAT
covenants with and warrants to STC, that (a) in no Tax return hereafter filed by
STC or any Affiliate of STC, or by HAT or any Affiliate of HAT, or any of their
respective representatives, successors or assigns, will STC or HAT or any of
their respective representatives, successors or assigns, treat any exchanges
described herein inconsistently with or differently than as described herein,
and (b) in no tax audit, tax examination, tax review or tax litigation will STC
or any Affiliate of STC, or HAT or any Affiliate of HAT, or any of their
respective representatives, successors or assigns, treat any such exchange
inconsistently with or differently than as described herein. Each party agrees
to cooperate with the other party in order that STC and HAT effectuate the tax-
deferred exchanges as described herein of like-kind property pursuant to Section
1031 of the Code. The parties agree to execute such agreements and other
documents as may be necessary to complete and otherwise effectuate these tax-
deferred exchanges.
6.12.4. In order to facilitate the Like-Kind Exchange as
contemplated hereunder, STC agrees to take such actions prior to the Closing
(subject to applicable regulatory requirements) as are necessary (the "LKE
Facilitation Transactions") so that immediately prior to the Closing and the
consummation of the Like-Kind Exchange STC Broadcasting shall own all of the STC
Non-License Assets and STC License Company shall own all of the STC License
Assets (the "Preferred STC Ownership"). Notwithstanding anything in this
Agreement to the contrary, the parties acknowledge and agree that STC shall have
the right, without the prior consent of HAT (provided that STC delivers written
notice to HAT of STC's intent to exercise such right at least three (3) days
prior to Closing), to take such actions in order to facilitate the Like-Kind
Exchange in a manner which minimizes the tax consequences to STC of the
transactions contemplated herein provided that the tax consequences for HAT are
the same as if the Preferred STC Ownership structure was used and the
transactions hereunder shall not be adversely affected except that in no event
shall STCBV fail to assign to STCBV Sub all rights under the ▇▇▇▇▇▇▇▇ Documents
or STCBV Sub fail to be the entity which acquires WPTZ and WNNE from ▇▇▇▇▇▇▇▇ as
contemplated by Section 8.1.
-----------
6.12.5. HAT acknowledges and agrees that STC may elect to
facilitate the exchanges contemplated by this Agreement by the use of a
"qualified intermediary" as defined in Treas. Reg. (S)1.1031(k)-1(g)(4) ("QI")
for purposes of engaging in the exchange of the STC License Assets. If STC so
elects, STC shall
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provide notice to HAT of STC's election, and thereafter both HAT and STC may at
the Closing (but immediately prior to the consummation of the exchange of Assets
contemplated in Article 2) assign such party's rights in respect of such
----------
party's License Assets under this Agreement to a QI (but such assignment shall
not relieve either party of such party's obligations under this Agreement).
Each party shall cooperate with all reasonable requests of the other party and
the QI in arranging and effecting the transfer of the License Assets to and from
the QI. Without limiting the generality of the foregoing, if STC has given
notice of STC's intention to effect the exchange of the Assets with a QI, (i)
HAT shall promptly provide STC with written acknowledgment of such notice, (ii)
at Closing, each party shall deliver such party's License Assets plus the amount
of cash if any, required to complete the exchange to the QI rather than to the
other party (which delivery shall discharge the obligation of such party to make
delivery of the License Assets (and such cash) hereunder), and (iii) at Closing,
accept delivery of the other party's License Assets from the QI rather than from
the other party.
6.13. Preservation of Books and Records.
For a period of five (5) years after the Closing Date, each
party agrees not to dispose of, and agrees to provide the other party reasonable
access to, any material books or records in such party's possession immediately
after the Closing Date that relate to the business or operations of its Stations
prior to the Closing Date.
6.14. Affiliated Transactions.
If as of the Closing Date a Recipient Party desires to
continue any Affiliated Transactions of a Transferring Party, such Recipient
Party shall provide such Transferring Party written notice at least ten (10)
days prior to the Closing Date designating which Affiliated Transactions shall
continue after the Closing Date; provided, however, the parties acknowledge and
-------- -------
agree that no Affiliated Transactions shall continue for a period in excess of
sixty (60) days after the Closing Date.
6.15. Clear Channel Agreements.
HAT shall not (a) do or omit to do any act which will cause a
material breach under any of the Clear Channel Agreements, or (b) amend, modify,
terminate or agree to amend, modify or terminate any of the Clear Channel
Agreements without the prior written consent of STC.
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6.16. ▇▇▇▇▇▇▇▇ Agreement.
STC shall not (a) do or omit to do any act which will cause a
breach under the ▇▇▇▇▇▇▇▇ Agreement, or (b) amend, modify, terminate, grant or
consent to a waiver under, or agree to amend, modify, terminate, grant or
consent to a waiver under, the ▇▇▇▇▇▇▇▇ Agreement without the prior written
consent of HAT.
6.17. Environmental Remediation.
The parties acknowledge and agree that certain environmental
remediation is required at WDTN and KSBW and that (a) HAT shall, at its own
cost, take whatever remedial actions are necessary to cause the abandoned
underground storage tanks at WDTN to be in compliance in all material respects
with Environmental Laws, and (b) STC shall, at its own cost, take whatever
remedial actions are necessary to cause the retrofitting at KSBW to be in
compliance in all material respects with Environmental Laws.
6.18 Certain FCC Matters
(a) Without the prior written consent of HAT, STC covenants
and agrees that, prior to the Closing, neither STC, SALC nor any Affiliated
Entities of STC or SALC shall acquire any new or increased "attributable
interest," as defined in the FCC rules, in any media property ("Further Media
Interest"), which Further Media Interest could not be held together with the HAT
Stations by STC License Company and SALC as contemplated herein following the
Closing Date under the rules and regulations of the FCC.
(b) Without the prior written consent of STC, HAT covenants
and agrees that, prior to the Closing, neither HAT nor any Affiliated Entities
of HAT shall acquire any Further Media Interest, which Further Media Interest
could not be held together with the STC Stations by HAT and Affiliated Entities
of HAT as contemplated herein following the Closing Date under the rules and
regulations of the FCC.
ARTICLE 7.
CONDITIONS PRECEDENT TO
OBLIGATIONS OF STC
The obligations of STC under this Agreement to proceed with
the Closing are subject to the satisfaction (or waiver in writing by STC) at or
prior to the Closing of each of the following conditions:
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7.1. Closing Under the ▇▇▇▇▇▇▇▇ Agreement.
STCBV Sub shall have acquired WPTZ and WNNE and the related
Assets (including, without limitation, the FCC Licenses) (as such terms are
defined in the ▇▇▇▇▇▇▇▇ Agreement) pursuant to the terms of the ▇▇▇▇▇▇▇▇
Agreement.
7.2. Representations and Covenants.
The representations and warranties of HAT made in this
Agreement shall be true and correct on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
the Closing Date (except as modified by the Schedules updated after the date
hereof in accordance with Section 6.10 and except for representations and
------------
warranties that speak as of a specific date or time other than the Closing Date,
(which need only be true and correct in all material respects as of such date or
time)), and the covenants and agreements of HAT required to be performed on or
before the Closing Date in accordance with the terms of this Agreement shall
have been performed in all respects, except to the extent that the failure of
such representations and warranties to be true and correct and the failure to
perform such covenants shall not have, when considered together, had a Material
Adverse Effect on the HAT Stations.
7.3. Delivery of Documents.
HAT shall have delivered to STC all contracts, agreements,
instruments and documents required to be delivered by HAT to STC pursuant to
Section 9.4.
-----------
7.4 Consents.
HAT shall have obtained all consents, authorizations or
approvals necessary to effect valid assignments to STC of the main transmission
tower and studio leases for WDTN.
7.5 ABC Affiliation Agreement.
(a) HAT shall have assigned to STC a written network
affiliation agreement with the American Broadcasting Company ("ABC") for WDTN
that provides for (i) Two Million Dollars ($2,000,000) of annual compensation
from ABC (ii) a duration of at least five (5) years after the Closing Date, and
(iii) terms and conditions that are otherwise consistent with the current
programming at WDTN (the "ABC Affiliation Agreement"); provided, however, that
-------- -------
HAT shall not be obligated to assign the ABC Affiliation Agreement if STC
provides written notice to
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HAT within thirty (30) days of the date of this Agreement that STC shall not
require HAT to obtain the consent of ABC to the assignment of the ABC
Affiliation Agreement to STC as a condition to Closing.
(b) STC and HAT acknowledge and agree that if the ABC
Affiliation Agreement does not provide for Two Million Dollars ($2,000,000) of
annual compensation from ABC, the Cash Consideration payable hereunder by HAT
shall be increased by the amount of (i) Two Million Dollars ($2,000,000) minus
-----
the actual annual compensation received from ABC, multiplied by (ii) Twelve and
----------
one-half (12.5). In addition, if the ABC Affiliation Agreement contains terms
and conditions which are inconsistent with any obligations under any Station
Contracts to be assumed by STC hereunder, the Cash Consideration payable
hereunder by HAT shall also be increased by the amount of Losses to be incurred
by STC as a result of STC's inability to fully use STC's rights under such
Station Contracts.
7.6. FCC Order.
The FCC Order shall have been issued with respect to each
Station and shall be in effect.
7.7. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇.
All applicable waiting periods under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ shall
have expired or terminated.
7.8. Legal Proceedings.
No injunction, restraining order or decree of any nature of
any court or Governmental Authority of competent jurisdiction shall be in effect
that restrains or prohibits the transactions contemplated by this Agreement.
ARTICLE 8.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF HAT
The obligations of HAT under this Agreement to proceed with
the Closing are subject to the satisfaction (or waiver in writing by HAT) at or
prior to the Closing of each of the following conditions:
8.1. Closing Under the ▇▇▇▇▇▇▇▇ Agreement.
STCBV shall have assigned all of its rights under the
▇▇▇▇▇▇▇▇ Documents to STCBV Sub and STCBV Sub shall have acquired WPTZ and WNNE
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and the related Assets (including, without limitation, the FCC Licenses) (as
such terms are defined in the ▇▇▇▇▇▇▇▇ Agreement) pursuant to the terms of the
▇▇▇▇▇▇▇▇ Agreement.
8.2. Representations and Covenants.
The representations and warranties of STC made in this Agreement shall
be true and correct on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of the Closing Date
(except as modified by the Schedules updated after the date hereof in accordance
with Section 6.10 and except for representations and warranties that speak as of
------------
a specific date or time other than the Closing Date (which need only be true and
correct in all material respects as of such date or time)), and the covenants
and agreements of STC required to be performed on or before the Closing Date in
accordance with the terms of this Agreement shall have been performed in all
respects, except to the extent that the failure of such representations and
warranties to be true and correct and the failure to perform such covenants
shall not have, when considered together, had a Material Adverse Effect on the
STC Stations.
8.3. Delivery of Documents.
STC shall have delivered to HAT all contracts, agreements, instruments
and documents required to be delivered by STC to HAT pursuant to Section 9.3.
-----------
8.4. Consents.
STC shall have obtained all consents, authorizations or approvals
necessary to effect valid assignments to HAT of the Network Agreement for KSBW.
8.5. FCC Order.
The FCC Order shall have been issued with respect to each Station and
shall be in effect.
8.6. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇.
All applicable waiting periods under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ shall have
expired or terminated.
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8.7. Legal Proceedings.
No injunction, restraining order or decree of any nature of any court
or Governmental Authority of competent jurisdiction shall be in effect that
restrains or prohibits the transactions contemplated by this Agreement.
8.8. LKE Facilitation Transactions.
Immediately prior to or at the Closing, STC shall have consummated the
LKE Facilitation Transactions, if necessary.
ARTICLE 9.
CLOSING
9.1. Closing.
The closing of the exchange of the Assets hereunder (the "Closing")
shall be held on a date that is the fifth business day after all conditions
precedent to the Closing set forth in Articles 7 and 8 hereof are satisfied or
----------------
waived (the "Closing Date").
9.2. Time and Place of Closing.
The Closing shall be held at 10:00 A.M. local time on the Closing Date
at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, or at such other time and place as the parties may agree.
9.3. Delivery by STC at the Closing.
At or before the Closing, STC shall deliver to HAT the following:
9.3.1. Agreements and Instruments
The following bills of sale, assignments and other instruments of
transfer with respect to the STC Assets, dated as of the Closing Date and duly
executed by the applicable STC Exchange Entity:
(a) a ▇▇▇▇ of Sale;
(b) an Assignment of FCC Licenses;
(c) an Assignment of Contracts and Leases;
(d) an Assumption Agreement;
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(e) certificates of title with respect to motor vehicles of
the STC Exchange Entities listed on Schedule 2.3.10 or
---------------
if any such motor vehicles are leased by any STC
Exchange Entity, an assignment of such lease; and
(f) special or limited warranty deeds for all Real Property
owned by the STC Exchange Entities in the form
appropriate to the jurisdictions in which such Real
Property is located.
9.3.2. Consents.
Copies of all consents STC has been able to obtain to effect the
assignment to HAT of STC's Station Contracts listed on Schedule 3.4.
------------
9.3.3. Certified Resolutions.
A copy of the approval of the board of directors of each STC Party,
certified as being correct and complete and then in full force and effect,
authorizing the execution, delivery and performance of this Agreement, and of
the other agreements to which such STC Party is a party, and the consummation of
the transactions contemplated hereby and thereby.
9.3.4. Officers' Certificates.
(a) A certificate of each STC Party certifying the matters
set forth in Section 8.2;
-----------
(b) A certificate of each STC Party as to the incumbency of
the representatives of such STC Party executing this Agreement or any of the
other agreements to which such STC Party is a party; and
(c) A certificate of STC Broadcasting certifying that all
amounts due and payable as of the Closing Date under any of STC's Station
Contracts relating to KSBW have been paid in full.
9.3.5. Good Standing Certificates.
To the extent available from the applicable jurisdictions,
certificates as to the formation and/or good standing of each STC Party issued
by the appropriate governmental authorities in the states of organization and
each jurisdiction in which such STC Party is qualified to do business, each such
certificate (if available) to be dated a date not more than a reasonable number
of days prior to the Closing Date.
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9.4. Delivery by HAT at the Closing.
At or before the Closing, HAT shall deliver to STC the following:
9.4.1. Agreements and Instruments
The following bills of sale, assignments and other
instruments of transfer with respect to the HAT Assets, dated as of the Closing
Date and duly executed by HAT:
(a) a ▇▇▇▇ of Sale;
(b) an Assignment of FCC Licenses;
(c) an Assignment of Contracts and Leases;
(d) an Assumption Agreement;
(e) certificates of title with respect to motor vehicles of
HAT listed on Schedule 2.3.10 or if any such motor
---------------
vehicles are leased by HAT, an assignment of such lease;
and
(f) special or limited warranty deeds for all Real Property
owned by HAT in the form appropriate to the
jurisdictions in which such Real Property is located.
9.4.2. Consents.
(a) Copies of all consents HAT has been able to obtain to
effect the assignment to STC of HAT's Station Contracts listed on Schedule 4.4.
------------
(b) Copies of all consents or notices required under the
Clear Channel Agreements as are required to comply with the terms thereof and to
validly assign the Clear Channel Agreements to STC.
9.4.3. Certified Resolutions.
A copy of the approval of the board of directors of HAT,
certified as being correct and complete and then in full force and effect,
authorizing the execution, delivery and performance of this Agreement, and of
the other agreements to which HAT is a party, and the consummation of the
transactions contemplated hereby and thereby.
9.4.4. Officers' Certificates.
(a) A certificate of HAT certifying the matters set forth in
Section 7.2;
-----------
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(b) A certificate of HAT as to the incumbency of the
representatives of HAT executing this Agreement or any of the other agreements
to which HAT is a party; and
(c) A certificate of HAT certifying that all amounts due and
payable as of the Closing Date under any of HAT's Stations Contracts relating to
WDTN have been paid in full.
9.4.5. Good Standing Certificates.
To the extent available from the applicable jurisdictions,
certificates as to the formation and/or good standing of HAT issued by the
appropriate governmental authorities in the states of organization and each
jurisdiction in which HAT is qualified to do business, each such certificate (if
available) to be dated a date not more than a reasonable number of days prior to
the Closing Date.
ARTICLE 10.
SURVIVAL; INDEMNIFICATION
10.1. Survival of Representations.
10.1.1. Unless otherwise set forth herein (including, without
limitation, Section 10.1.2), all representations and warranties, covenants and
--------------
agreements of the parties hereto contained in or made pursuant to this Agreement
or in any certificate furnished pursuant hereto shall survive the Closing Date
and shall remain in full force and effect to the following extent: (a)
representations and warranties shall survive for a period of twelve (12) months
after the Closing Date, (b) the covenants and agreements which by their terms
survive the Closing shall continue in full force and effect until fully
discharged (but not beyond the expiration of twelve (12) months after the
Closing Date except in the case of the indemnities set forth in clauses (a),
(b), (d) and (g) of Section 10.2, clauses (a), (b), (d) and (g) of Section 10.3
------------ ------------
and Section 10.6 which shall survive indefinitely), and (c) any representation,
------------
warranty, covenant or agreement that is the subject of a claim which is asserted
in a reasonably detailed writing prior to the expiration of the survival period
set forth in this Section 10.1.1, shall survive with respect to such claim or
--------------
dispute until the final resolution thereof.
10.1.2. No claim for indemnification may be made pursuant to this
Article 10 after the survival period set forth in this Section 10.1.
---------- ------------
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10.2. Indemnification by STC.
Subject to the conditions and provisions of Section 10.4 and Section
------------ -------
10.5, from and after the Closing Date, STC agrees to indemnify, defend and hold
----
harmless HAT from and against and in any respect of, on a net after-tax basis,
any and all Losses, asserted against, resulting to, imposed upon or incurred by
HAT, directly or indirectly, by reason of or resulting from: (a) any failure by
STC to pay, perform or discharge any Liabilities not assumed by HAT pursuant
hereto; (b) the business or operations of KSBW during the period prior to the
Closing Date; (c) any misrepresentation or breach of the representations and
warranties of STC contained in or made pursuant to this Agreement or any STC
Document (it being agreed that for this purpose the representations and
warranties made in the certificates delivered pursuant to Section 9.3.4(a) shall
----------------
not be qualified by references to Material Adverse Effect set forth in Section
-------
8.2); (d) any breach by STC of any covenants of STC contained in or made
----
pursuant to this Agreement or any other STC Document except for covenants
relating to WPTZ and WNNE (which are addressed in Section 10.2(h)); (e) the
---------------
failure of STC to comply with the provisions of any applicable bulk transfer
law; (f) any breach of the covenants and agreements of STC contained in Section
-------
6.18; (g) any WFFF Liabilities; or (h) any ▇▇▇▇▇▇▇▇ Liabilities arising as a
----
result of the willful misconduct, gross negligence or bad faith of STC.
10.3. Indemnification by HAT.
Subject to the conditions and provisions of Section 10.4 and Section
------------ -------
10.5, from and after the Closing Date, HAT agrees to indemnify, defend and hold
----
harmless STC from and against and in any respect of, on a net after-tax basis,
any and all Losses, asserted against, resulting to, imposed upon or incurred by
STC, directly or indirectly, by reason of or resulting from: (a) any failure by
HAT to pay, perform or discharge any Liabilities not assumed by STC pursuant
hereto; (b) the business or operations of the HAT Stations during the period
prior to the Closing Date (except to the extent STC has assumed the Liability
for any such Losses pursuant hereto); (c) any misrepresentation or breach of the
representations and warranties of HAT contained in or made pursuant to this
Agreement or any HAT Document (it being agreed that for this purpose the
representations and warranties made in the certificates delivered pursuant to
Section 9.4.4(a) shall not be qualified by references to Material Adverse Effect
----------------
set forth in Section 7.2); (d) any breach by HAT of any covenants of HAT
------------
contained in or made pursuant to this Agreement or any other HAT Document; (e)
the failure of HAT to comply with the provisions of any applicable bulk transfer
law; (f) any breach of the covenants and agreements of HAT contained in Section
-------
6.18; or (g) any ▇▇▇▇▇▇▇▇ Liabilities (but excluding any such ▇▇▇▇▇▇▇▇
----
Liabilities arising as a result of the willful misconduct, gross negligence or
bad faith of STC).
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10.4. Limitations on Indemnification.
10.4.1. Notwithstanding any other provision of this Agreement to the
contrary, in no event shall Losses include a party's incidental, consequential
or punitive damages, regardless of the theory of recovery. Each party hereto
agrees to use reasonable efforts to mitigate any Losses which form the basis for
any claim for indemnification hereunder.
10.4.2. Notwithstanding any other provision of this Agreement to the
contrary, neither party shall be liable to the other party in respect of any
indemnification hereunder except to the extent that the aggregate amount of
Losses of the other party under this Agreement exceeds Five Hundred Thousand
Dollars ($500,000) (the "Basket Amount"), in which event the Indemnified Party
shall be entitled to seek indemnity from each Indemnifying Party for the full
amount of such Losses; provided, however, the Basket Amount shall not be
-------- -------
applicable to any amounts owed in connection with the determination of the
Proration Amount pursuant to Section 2.6, to the determination of the Accounts
-----------
Receivable amount pursuant to Section 2.7, risk of loss matters pursuant to
-----------
Section 6.6, the obligations with respect to employee matters pursuant to
-----------
Section 6.8 and Section 6.9 or to the indemnities set forth in clauses (a), (b),
----------- -----------
(e), (f), (g) and (h) of Section 10.2 and clauses (a), (b), (e), (f) and (g) of
------------
Section 10.3.
------------
10.4.3. Each party (a "recipient party") shall notify the other party
in writing (the "representing party") reasonably promptly of any perceived
breach by the representing party of which the recipient party has knowledge of
any representations, warranties, covenants and agreements, and of any Losses
(including a brief description of the same) of the recipient party caused
thereby. In the event of any breach that is cured prior to the Closing Date in
accordance with the terms of this Agreement, the representing party shall have
no obligation under Section 10.2 or Section 10.3 or otherwise to indemnify the
------------ ------------
recipient party with respect to such Losses.
10.5. Conditions of Indemnification.
The obligations and liabilities of the parties hereunder with respect
to their respective indemnities pursuant to this Article 10, resulting from any
----------
Losses, shall be subject to the following terms and conditions:
10.5.1. The party seeking indemnification (the "Indemnified Party")
must give the other party or parties, as the case may be (the "Indemnifying
Party"), notice of any such Losses promptly after the Indemnified Party receives
notice thereof; provided that the failure to give such notice shall not affect
the rights of the Indemnified Party hereunder except to the extent that the
Indemnifying Party shall have suffered actual damage by reason of such failure.
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10.5.2. The Indemnifying Party shall have the right to undertake, by
counsel or other representatives of its own choosing, the defense of such Losses
at the Indemnifying Party's risk and expense.
10.5.3. In the event that the Indemnifying Party shall elect not to
undertake such defense, or, within a reasonable time after notice from the
Indemnified Party of any such Losses, shall fail to defend, the Indemnified
Party (upon further written notice to the Indemnifying Party) shall have the
right to undertake the defense, compromise or settlement of such Losses, by
counsel or other representatives of its own choosing, on behalf of and for the
account and risk of the Indemnifying Party (subject to the right of the
Indemnifying Party to assume defense of such Losses at any time prior to
settlement, compromise or final determination thereof). In such event, the
Indemnifying Party shall pay to the Indemnified Party, in addition to the other
sums required to be paid hereunder, the costs and expenses incurred by the
Indemnified Party in connection with such defense, compromise or settlement as
and when such costs and expenses are so incurred.
10.5.4. Anything in this Section 10.5 to the contrary
------------
notwithstanding, (a) if there is a reasonable possibility that Losses may
materially and adversely affect the Indemnified Party other than as a result of
money damages or other money payments, the Indemnified Party shall have the
right, at its own cost and expense, to participate in the defense, compromise or
settlement of the Losses, (b) the Indemnifying Party shall not, without the
Indemnified Party's written consent, settle or compromise any Losses or consent
to entry of any judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Party of a
release from all liability in respect of such Losses in form and substance
satisfactory to the Indemnified Party, and (c) in the event that the
Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by
counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the Indemnifying Party and its
counsel or other representatives concerning such Losses and the Indemnifying
Party and the Indemnified Party and their respective counsel or other
representatives shall cooperate with respect to such Losses and (d) in the event
that the Indemnifying Party undertakes defense of any Losses, the Indemnifying
Party shall have an obligation to keep the Indemnified Party informed of the
status of the defense of such Losses and furnish the Indemnified Party with all
documents, instruments and information that the Indemnified Party shall
reasonably request in connection therewith.
10.6. Special Tax Indemnification by HAT.
(a) The parties acknowledge and agree that STC does not intend to
acquire WPTZ and WNNE for productive use in a trade or business or for
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investment within the meaning of Section 1031 of the Code ("Productive
Use/Investment Property") and the parties do not intend for WPTZ and WNNE to be
treated as property exchanged by STC under this Agreement for property of a
like-kind. STC covenants and agrees not to take any position on any income tax
return that is in any way inconsistent with the foregoing.
(b) HAT agrees to indemnify, defend and hold harmless (the "Tax
Indemnity") STC and each member of STC's federal consolidated group
(collectively, the "STC Indemnified Party") from and against, and in any respect
of, any and all Losses or any net increase in any Taxes (collectively, the "Tax
Increase") to the STC Indemnified Party that is asserted against, resulting to,
imposed upon or incurred by any STC Indemnified Party in connection with any
assertion by the Internal Revenue Service that the exchange of WPTZ and WNNE
pursuant to this Agreement constitutes Productive Use/Investment Property. The
Tax Increase shall be computed by (i) determining the amount obtained by
multiplying (A) the projected increases and decreases in federal, state and
local income or gains of the STC Indemnified Parties for 1998 and each later
taxable year on account of the increases and decreases in income or gains each
year resulting from treatment of WPTZ and WNNE as Productive Use/Investment
Property, by (B) the highest marginal federal, state and local tax rates
applicable to a corporation under applicable law as of the Closing, and (ii)
discounting the net increases or decreases in potential Taxes described in
clause (i) to the date of Closing using a discount rate of 7% per year. The
----------
amount of any Tax Indemnity payment by HAT to an STC Indemnified Party pursuant
to this Section 10.6(b) shall be further increased by an amount (the "Gross-Up
---------------
Payment") such that after payment by any STC Indemnified Party of any such
Taxes, including any Taxes imposed on the Gross-Up Payment, STC shall receive
from HAT an amount as if no Taxes had been payable. For purposes of computing
any Taxes relevant to this Section 10.6, any STC Indemnified Party shall be
------------
assumed to be a corporation that is fully taxable on all of its income or gains
at the highest applicable marginal rates for the Taxes at issue as of the
Closing.
(c) Each STC Indemnified Party agrees that in the event it receives
notice, whether oral or written, of any federal, state or local examination,
audit, proposed adjustment, or other administrative or court proceeding, suit,
dispute or other claim (a "Tax Claim") that may affect HAT's liability under
this Section 10.6, the STC Indemnified Party shall promptly notify HAT; provided
------------
that the failure to give such notice shall not affect the rights of the STC
Indemnified Party hereunder except to the extent that HAT shall have suffered
actual damage by reason of such failure. HAT shall be entitled at its sole
discretion and expense to handle and control the defense of any Tax Claim, and
the STC Indemnified Party shall cooperate with HAT in this regard by giving HAT
and its representatives the opportunity to negotiate, settle or dispute the Tax
Claim together with reasonable assistance including, without limitation,
reasonable access to all relevant
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information, books and records. In no event may the STC Indemnified Party
compromise or settle any Tax Claim without first obtaining the written consent
of HAT.
10.7. Cure of Breach.
Notwithstanding any other provision of this Agreement to the contrary,
a breach by any party hereto of any representations and warranties or a failure
to perform any covenant or agreement hereunder may be cured by such party prior
to the Closing Date (a) by making payment to a third party or taking other
action to discharge the Losses, (b) by placing an amount equal to the Losses in
an escrow account under an escrow arrangement reasonably satisfactory to STC and
HAT or (c) a combination of the foregoing. If the foregoing actions fully cure
the breach, the breaching party shall have no obligation under this Article 10
----------
or otherwise to indemnify the other party with respect to the Losses caused by
such breach; if such actions partially cure the breach, the breaching party
shall continue to have an obligation under this Article 10 to indemnify the
----------
other party with respect to the remaining portion of the Losses caused by such
breach.
ARTICLE 11.
TERMINATION
11.1. Termination of Exchange by the Parties.
11.1.1. The obligation of the parties to consummate the closing of
the exchange of the Assets contemplated by Article 2 may be terminated at any
---------
time prior to such closing by:
(a) the mutual consent of STC and HAT;
(b) STC if HAT shall default in the performance of its
obligations under this Agreement in any material respect and such default is not
cured within thirty (30) days after notice thereof, and provided that STC shall
not then be in material default in the performance of STC's obligations
hereunder;
(c) HAT if any STC Party shall default in the performance of
its obligations under this Agreement in any material respect and such default is
not cured within thirty (30) days after notice thereof, and provided that HAT
shall not then be in material default in the performance of HAT's obligations
hereunder; and
(d) either HAT or STC if such closing shall not have occurred
on or prior to such date which is two (2) years after the date of this
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Agreement (provided that the party seeking to terminate shall not have such
termination right if such party is in breach of this Agreement and such breach
caused such closing to fail to occur).
11.1.2. Anything contained in this Agreement to the contrary
notwithstanding, in the event that (a) the obligation of the parties to
consummate the closing of the exchange of the Assets contemplated by Article 2
---------
shall be terminated pursuant to Section 11.1, and (b) HAT shall have provided
------------
all required portions of the Burlington Financing Amount to STCBV Sub in
connection with the acquisition of any assets by STC under the ▇▇▇▇▇▇▇▇
Agreement, then in lieu of such exchange of Assets transaction (x) the LKE
Facilitation Transactions shall not be consummated and (y) STCBV Sub shall sell,
assign, transfer, convey and deliver to HAT, free and clear of any Encumbrances
other than those Permitted Encumbrances which are applicable to WPTZ and WNNE,
and HAT shall purchase, acquire and accept from STCBV Sub, all right, title and
interest of STCBV Sub in, to and under all real, personal and mixed assets,
rights, benefits and privileges, both tangible and intangible, owned, leased,
used or useful by STCBV Sub in connection with the business and operations of
WPTZ and WNNE (collectively, the "Cash Purchase Assets"), in each case on the
identical terms and conditions as would have otherwise applied if the closing of
the exchange of the Assets contemplated by Article 2 had occurred except as
---------
follows:
(i) All provisions of this Agreement, including but not
limited to those provisions contained in Article 2, which relate to the HAT
---------
Stations shall be disregarded insofar as such provisions relate to the HAT
Stations;
(ii) All provisions of this Agreement, including but not
limited to those provisions contained in Article 2, which relate to KSBW shall
---------
be disregarded insofar as such provisions relate to KSBW;
(iii) In lieu of the closing of the exchange of the Assets
contemplated by Article 2, the term "Closing" will be deemed to refer to the
---------
closing of the purchase and sale of the Cash Purchase Assets described in this
Section 11.1;
------------
(iv) In lieu of the provisions of Section 2.5, the
-----------
following shall apply: For and in consideration of the conveyance of Cash
Purchase Assets to HAT and in addition to the assumption of Liabilities by HAT
as set forth in Section 2.10, at the Closing HAT agrees to pay to STCBV Sub an
------- ----
amount equal to that portion of the Purchase Price (as defined in the ▇▇▇▇▇▇▇▇
Agreement) which shall theretofore have been paid by STC pursuant to the
▇▇▇▇▇▇▇▇ Agreement (but excluding any proration amounts), either by wire
transfer of immediately available funds to an account designated by STC or by
set off against any outstanding Burlington Financing Amount;
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(v) In lieu of Section 2.8, the following shall apply:
-----------
The payment made by HAT to STCBV Sub pursuant to subparagraph (iv) above shall
be allocated among the Cash Purchase Assets in accordance with the Appraisal,
unless the parties otherwise agree, and all Tax returns and reports shall be
filed consistent with such allocation;
(vi) At the Closing, in lieu of the applicable STC Exchange
Entity, STCBV Sub will deliver the bills of sale, assignments and other
instruments of transfer described in Section 9.3.1 with respect to the Cash
-------------
Purchase Assets; and
(vii) The following Sections of this Agreement shall be
deemed to be void and shall have no further force and effect: 2.5, 2.7, 2.8,
6.12 and 10.6.
11.2. Termination of Agreement.
This Agreement shall automatically terminate without further action by
the parties upon the termination of the ▇▇▇▇▇▇▇▇ Agreement in accordance with
its terms. This Agreement may also be terminated by:
(a) HAT by written notice of termination delivered to STC at any
time prior to July 26, 1998 if the acquisition by ▇▇▇▇▇▇▇▇ of the Burlington
Stations under the Heritage Agreement shall not have occurred on or prior to
July 16, 1998;
(b) STC by written notice of termination delivered to HAT if (i)
HAT shall not have delivered a complete set of the Schedules for the HAT
Stations (and supporting materials) within ten (10) business days after the
execution and delivery of this Agreement, or (ii) at any time prior to the end
of the Schedule Review Period pursuant to Section 6.10(a); and
---------------
(c) STC by written notice of termination delivered to HAT at any
time prior to the closing of the exchange of the Assets contemplated by
Article 2 if (i) HAT shall have defaulted in its obligation to provide the
---------
initial funding of the Burlington Financing Amount as required under Section
-------
2.13, or (ii) if prior to the funding of any portion of the Burlington Financing
----
Amount, there shall have been a default by HAT in the performance of its
obligations under this Agreement in any material respect and such default is not
cured within thirty (30) days after notice thereof, and provided that STC shall
not then be in material default in the performance of STC's obligations
hereunder.
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11.3. Effect of Termination.
11.3.1. In the event this Agreement is terminated as provided in
Section 11.2, this Agreement shall be deemed null, void and of no further force
------------
or effect, and the parties hereto shall be released from all future obligations
hereunder; provided, however, that the obligations of the parties set forth in
-------- -------
Section 2.14 (which relate to reimbursement by STCBV Sub of any Working Capital
------------
Advances), Section 6.3, and Section 12.3, shall survive such termination and the
---- ------------
parties hereto shall have any and all remedies to enforce such obligations
provided at law or in equity or otherwise (including, without limitation,
specific performance); and provided, further that such termination shall not
-------- -------
affect the liability of any party hereto with respect to any breach of this
Agreement by such party occurring prior to such termination.
11.3.2. In the event that the ▇▇▇▇▇▇▇▇ Agreement is terminated as
provided therein and ▇▇▇▇▇▇▇▇ is entitled to the Deposit under the Letter of
Credit (each as defined in the ▇▇▇▇▇▇▇▇ Agreement), HAT shall reimburse STC for
the amount of the Deposit; provided, however, there shall not have been a
-------- -------
material breach or default by STC under the ▇▇▇▇▇▇▇▇ Agreement.
ARTICLE 12.
GENERAL PROVISIONS
12.1. Additional Actions, Documents and Information.
The Transferring Party agrees that it will, at any time, prior to, at
or after the Closing Date, take or cause to be taken such further actions, and
execute, deliver and file or cause to be executed, delivered and filed such
further documents and instruments and obtain such consents, as may be reasonably
requested by the Recipient Party in connection with the consummation of the
exchange contemplated by this Agreement.
12.2. Brokers.
Except for the fees payable as set forth in Schedule 12.2, STC
-------------
represents to HAT that STC has not engaged, or incurred any unpaid liability
(for any brokerage fees, finders' fees, commissions or otherwise) to, any
broker, finder or agent in connection with the transactions contemplated by this
Agreement; except for the fees payable as set forth in Schedule 12.2, HAT
-------------
represents to STC that HAT has not engaged, or incurred any unpaid liability
(for any brokerage fees, finders' fees, commissions or otherwise) to, any
broker, finder or agent in connection with the transactions contemplated by this
Agreement; and STC agrees to indemnify HAT, and HAT agrees to indemnify STC,
against any claims asserted against the
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other party for any such fees or commissions by any person purporting to act or
to have acted for or on behalf of the indemnifying party. Notwithstanding any
other provision of this Agreement, this representation and warranty shall
survive the Closing without limitation and shall not be subject to the Basket
Amount contained in Section 10.4.2.
--------------
12.3. Expenses and Taxes.
(a) Unless otherwise provided herein, each party hereto shall pay
its own expenses incurred in connection with this Agreement and in the
preparation for and consummation of the transactions provided for herein,
including, without limitation, all costs and expenses incurred in connection
with any title insurance policies, surveys or environmental assessments
(including the environmental remediation described in Section 6.16) obtained by
------------
such party (and in the case of STC, all expenses incurred by STC in connection
with STC's financing required to consummate the transactions contemplated
herein). Notwithstanding the foregoing, HAT and STC shall each pay one-half of
(i) all sales (including, without limitation, bulk sales), use, documentary,
stamp, gross receipts, registration, transfer, conveyance, excise, recording,
license and other similar Taxes and fees ("Transfer Taxes") applicable to,
imposed upon or arising out of the conveyances of the Assets whether now in
effect or hereinafter adopted and regardless of which party such Transfer Tax is
imposed upon, (ii) any FCC filing fees incurred in connection with the
assignment of the FCC Licenses, and (iii) any fees and expenses incurred in
connection with any HSR Filings, and (iv) any fees and expenses incurred in
connection with the use of a QI as contemplated by Section 6.12.
------------
(b) HAT acknowledges and agrees that STC is acquiring WPTZ and
WNNE for HAT's benefit, and HAT agrees to reimburse STC for all costs and
expenses incurred by STC under the ▇▇▇▇▇▇▇▇ Documents, including, without
limitation, (i) the costs of the letter of credit deposited by STC pursuant to
the ▇▇▇▇▇▇▇▇ Agreement (provided that there shall not have been a material
breach or default by STC under the ▇▇▇▇▇▇▇▇ Agreement which results in the
forfeiture of the letter of credit to ▇▇▇▇▇▇▇▇), and (ii) STC's share of costs
and expenses required to be paid by STC pursuant to Section 15.3 of the ▇▇▇▇▇▇▇▇
------------
Agreement; provided, however, all expenses of counsel and accountants of any STC
-------- -------
Party in connection with the negotiation and documentation of the ▇▇▇▇▇▇▇▇
Documents and the consummation of the transactions contemplated therein and all
expenses of STC in connection with STC's financing required to repay the
Burlington Financing Amount (net of the Cash Consideration) shall be paid by
STC.
(c) Subject to HAT's obligations to reimburse STC for all costs
and expenses incurred by STC under the ▇▇▇▇▇▇▇▇ Documents pursuant to Section
-------
12.3(b), from and after the Closing, STC agrees to remit to HAT any monies
-------
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received from ▇▇▇▇▇▇▇▇ or held for the benefit of STC under the ▇▇▇▇▇▇▇▇
Agreement that relate to WPTZ and WNNE.
12.4. Notices.
All notices, demands, requests, or other communications which may be
or are required to be given or made by any party to any other party pursuant to
this Agreement shall be in writing and shall be hand delivered, mailed by first-
class registered or certified mail, return receipt requested, postage prepaid,
delivered by overnight air courier, or transmitted by telegram, telex, or
facsimile transmission addressed as follows:
If to STC:
STC Broadcasting, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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If to HAT:
Hearst-Argyle Television, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as the addressee may indicate by written notice to the
other parties.
Each notice, demand, request, or communication which shall be given
or made in the manner described above shall be deemed sufficiently given or made
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt, the affidavit of messenger or (with
respect to a telex) the answerback being deemed conclusive but not exclusive
evidence of such delivery) or at such time as delivery is refused by the
addressee upon presentation.
12.5. Waiver.
No delay or failure on the part of any party hereto in exercising
any right, power or privilege under this Agreement or under any other instrument
or document given in connection with or pursuant to this Agreement shall impair
any such right, power or privilege or be construed as a waiver of any default or
any acquiescence therein. No single or partial exercise of any such right, power
or privilege shall preclude the further exercise of such right, power or
privilege, or the exercise of any other right, power or privilege. No waiver
shall be valid against any party hereto unless made in writing and signed by the
party against whom enforcement of such waiver is sought and then only to the
extent expressly specified therein.
12.6. Benefit and Assignment.
12.6.1. Neither party shall assign this Agreement, in whole or in
part, whether by operation of law or otherwise, without the prior written
consent of
-76-
the other party and any purported assignment contrary to the terms hereof shall
be null, void and of no force and effect; provided, however, each party consents
to the assignment of this Agreement to a QI as contemplated by Section 6.12.
------------
12.6.2. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto (and any STC Indemnified Party) and their
respective successors and assigns as permitted hereunder. No Person, other than
the parties hereto (and any STC Indemnified Party) and their respective
successors and assigns as permitted hereunder, is or shall be entitled to bring
any action to enforce any provision of this Agreement against any of the parties
hereto, and the covenants and agreements set forth in this Agreement shall be
solely for the benefit of, and shall be enforceable only by, the parties hereto
(and any STC Indemnified Party) or their respective successors and assigns as
permitted hereunder.
12.7. Entire Agreement; Amendment.
This Agreement, including the Schedules and Exhibits hereto and the
other instruments and documents referred to herein or delivered pursuant hereto,
contains the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior oral or written agreements, commitments
or understandings with respect to such matters. No amendment, modification or
discharge of this Agreement shall be valid or binding unless set forth in
writing and duly executed by each of the parties hereto.
12.8. Severability.
If any part of any provision of this Agreement or any other
contract, agreement, document or writing given pursuant to or in connection with
this Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provisions or the
remaining provisions of said contract, agreement, document or writing.
12.9. Headings.
The headings of the sections and subsections contained in this
Agreement are inserted for convenience only and do not form a part or affect the
meaning, construction or scope thereof.
12.10. Governing Law.
This Agreement, the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed
under
-77-
and in accordance with the laws of the State of New York, excluding the choice
of law rules thereof.
12.11. Signature in Counterparts.
This Agreement may be executed in separate counterparts, none of
which need contain the signatures of all parties, each of which shall be deemed
to be an original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
-78-
IN WITNESS WHEREOF, each of the parties hereto has executed this Asset
Exchange Agreement, or has caused this Asset Exchange Agreement to be duly
executed and delivered in its name on its behalf, all as of the day and year
first above written.
STC BROADCASTING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Chief Financial Officer
STC LICENSE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Chief Financial Officer
STC BROADCASTING OF VERMONT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Chief Financial Officer
STC BROADCASTING OF VERMONT
SUBSIDIARY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Chief Financial Officer
-79-
HEARST-ARGYLE STATIONS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
-80-
ANNEX I
DEFINITIONS
"ABC" shall have the meaning specified in Section 7.5.
-----------
"ABC Affiliation Agreement" shall have the meaning set forth in
Section 7.5.
------------
"Accounting Firm" shall have the meaning set forth in Section 2.6.2.
-------------
"Accounts Receivable" means all cash accounts receivable with respect
to a Station as of the end of the broadcast day immediately preceding the
Closing Date.
"Additional Agreements" shall have the meaning set forth in
Section 6.1.6.
-------------
"Affiliate" shall mean, with respect to any Person, any other Person
that, (a) directly or indirectly is in control of, is controlled by, or is under
common control with, the first Person, (b) is an officer, director, trustee,
partner (general or limited), employee or holder of five percent (5%) or more of
any class of any voting or non-voting securities or other equity in the first
Person, (c) is an officer, director, trustee, partner (general or limited),
employee or holder of five percent (5%) or more of any class of the voting or
non-voting securities or other equity in any Person which directly or indirectly
is in control of, is controlled by, or is under common control with, the first
Person, and (d) any Family of any individual included in (a), (b) or (c). For
purposes of this definition, "control" (including with correlative meanings
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of either (X) five percent (5%) or more of the voting power of
the securities having ordinary voting power for the election of directors of the
first Person, or (Y) the power to direct or cause the direction of the
management or policies of the first Person (whether through ownership of
securities, partnership interests or any other ownership or debt interests, by
contract or otherwise).
"Affiliated Entities" shall mean, with respect to any Person, any
other Person that directly or indirectly is in control of, is controlled by, or
is under common control with, the first Person.
"Affiliated Transactions" shall have the meaning set forth in
Section 4.19.
------------
"Agreement" shall have the meaning set forth in the Preamble.
"Applicant" shall have the meaning set forth in Section 3.9.3.
-------------
"Appraisal" shall have the meaning set forth in Section 2.8.1.
-------------
"Appraisal Firm" shall have the meaning set forth in Section 2.8.1.
-------------
"Appraisal Report" shall have the meaning set forth in Section 2.8.1.
-------------
"Assets" shall have the meaning set forth in Section 2.2.
-----------
"Assignment of Contracts and Leases" means that certain Assignment of
Contracts and Leases, dated as of the Closing Date and executed by the
Transferring Party, substantially in the form attached hereto as Exhibit C.
---------
"Assignment of FCC Licenses" means that certain Assignment of FCC
Licenses, dated as of the Closing Date and executed by the Transferring Party,
substantially in the form attached hereto as Exhibit B.
---------
"Assumed Liabilities" mean the Liabilities assumed by the Recipient
Party pursuant to Section 2.9 or Section 2.10, as the case may be.
----------- ------------
"Assumption Agreement" means that certain Assumption Agreement, dated
the Closing Date and executed by the parties, substantially in the form attached
hereto as Exhibit D.
---------
"Basket Amount" shall have the meaning set forth in Section 10.4.2.
--------------
"Benefit Arrangement" means any benefit arrangement, obligation,
custom, or practice, whether or not legally enforceable, to provide benefits,
other than salary, as compensation for services rendered, to present or former
directors, employees, agents, or independent contractors, other than any
obligation, arrangement, custom or practice that is a Plan, including, without
limitation, employment agreements, executive compensation arrangements,
incentive programs or arrangements, sick leave, vacation pay, plant closing
benefits, salary continuation for disability, consulting, or other compensation
arrangements, workers' compensation, retirement, deferred compensation, bonus,
stock option or purchase, hospitalization, medical insurance, life insurance,
tuition reimbursement or scholarship programs, perquisite, company cars, any
plans subject to Code Section 125, and any plans providing benefits or payments
in the event of a change of control, change in ownership, or sale of a
substantial portion (including all or substantially all) of the assets of any
business or portion thereof, in each case with respect to any present or former
employees, directors, or agents.
"Benefit Liabilities" shall have the meaning set forth in
Section 3.14.6.
--------------
"Benefit Plans" shall have the meaning set forth in Section 4.14.1.
--------------
ANNEXI-2
"▇▇▇▇ of Sale" means that certain ▇▇▇▇ of Sale and Assignment of
Assets, dated as of the Closing Date and executed by the Transferring Party,
substantially in the form attached hereto as Exhibit A.
---------
"Burlington Financing Amount" shall have the meaning set forth in
Section 2.13.
------------
"Burlington Stations" shall have the meaning set forth in the
Recitals.
"Cash Consideration" shall have the meaning set forth in
Section 2.5.1.
-------------
"Cash Purchase Assets" shall have the meaning set forth in
Section 11.1.2.
--------------
"Clear Channel" shall have the meaning set forth in the Recitals.
"Clear Channel Agreements" shall have the meaning set forth in the
Recitals.
"Closing" shall have the meaning set forth in Section 9.1.
-----------
"Closing Date" shall have the meaning set forth in Section 9.1.
-----------
"Code" means the Internal Revenue Code of 1986, as amended, and all
Laws promulgated pursuant thereto or in connection therewith.
"Current Balance Sheet Date" shall have the meaning set forth in
Section 3.5.2.
-------------
"Deferred Contract" shall have the meaning set forth in
Section 6.2.10(b).
-----------------
"Designated Employees" shall have the meaning set forth in
Section 6.9.1.
-------------
"DMA" means the designated market area for a particular television or
radio station as determined by the ▇.▇. ▇▇▇▇▇▇▇ Co.
"Encumbrances" mean any mortgages, pledges, liens, security interests,
defects in title, easements, rights-of-way, encumbrances, restrictions and any
other matters affecting title.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, ("CERCLA") as amended by the
ANNEXI-3
Superfund Amendments and Reauthorization Act of 1986 ("▇▇▇▇"), 42 U.S.C. (S)
9601 et seq.; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. (S) 2601 et
------ --
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. (S) 1802 et seq.;
---- -------
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. (S) 9601 et seq.;
-------
the Clean Water Act ("CWA"), 33 U.S.C. (S) 1251 et seq.; the Safe Drinking Water
Act, 42 U.S.C. (S) 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C. (S) 7401
-------
et seq.; or any other applicable federal, state, or local laws relating to
-------
Hazardous Materials generation, production, use, storage, treatment,
transportation or disposal, or the protection of the environment from Hazardous
Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and all Laws promulgated pursuant thereto or in connection therewith.
"ERISA Affiliate" means any person that, together with the referenced
party, would be or was prior to March 17, 1997 treated as a single employer
under Section 414 of the Code or Section 4001 of ERISA.
"Excluded Assets" shall have the meaning set forth in Section 2.4.
-----------
"Family" of an individual includes (a) the individual, (b) the
individual's spouse and former spouses and any other natural person who resides
with such individual, and (c) any other natural person who is related to the
individual or any person described in the preceding clause (b) within the second
degree.
"FCC" means the Federal Communications Commission.
"FCC Applications" shall have the meaning set forth in Section 5.1.
-----------
"FCC Licenses" shall have the meaning set forth in Section 2.3.1.
-------------
"FCC Order" means an order or orders of the FCC, or of the Chief, Mass
Media Bureau of the FCC, acting under delegated authority, consenting to the
assignment to the Recipient Party of the FCC Licenses for the Transferring
Party's Stations.
"Final AR Amount" shall have the meaning set forth in Section 2.7.2.
-------------
"Final Proration Amount" shall have the meaning set forth in
Section 2.6.2.
-------------
"Further Media Interest" shall have the meaning set forth in
Section 6.18.
------------
ANNEXI-4
"Governmental Authority" means any agency, board, bureau, court,
commission, department, instrumentality or administration of the United States
government, any foreign government, any state government or any local or other
governmental body in a state, territory or possession of the United States or
the District of Columbia.
"▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended, and all Laws promulgated pursuant thereto or in
connection therewith.
"HAT" shall have the meaning set forth in the Preamble.
"HAT Affiliated Transactions" shall have the meaning set forth in
Section 4.19.
------------
"HAT Assets" shall have the meaning set forth in Section 2.2.
-----------
"HAT Balance Sheets" shall have the meaning set forth in
Section 4.5.1.
-------------
"HAT Benefit Plans" shall have the meaning specified in
Section 4.14.1.
--------------
"HAT Documents" shall mean the ▇▇▇▇ of Sale and Assignment of Assets,
the Assignment of FCC Licenses, the Assignment of Contracts and Leases, the
Assumption Agreement, and the real property deeds delivered pursuant to
Section 9.4.1(f).
"HAT Excluded Assets" shall have the meaning set forth in Section 2.4.
-----------
"HAT License Assets" shall mean the FCC licenses of the HAT Stations.
"HAT Non-License Assets" shall have the meaning set forth in
Section 2.2.
-----------
"HAT Retirement Plan" shall have the meaning set forth in
Section 6.8.5.
-------------
"HAT Stations" shall have the meaning set forth in the Recitals.
"Hazardous Materials" means any wastes, substances, or materials
(whether solids, liquids or gases) that are deemed hazardous, toxic, pollutants,
or contaminants, including without limitation, substances defined as "hazardous
wastes," "hazardous substances," "toxic substances," "radioactive materials," or
other similar designations in, or otherwise subject to regulation under, any
Environmental Laws.
ANNEXI-5
"Heritage Agreement" shall have the meaning set forth in the Recitals.
"Heritage Subsidiaries" shall have the meaning set forth in the
Recitals.
"HMC" shall have the meaning set forth in the Recitals.
"HSR Filing" shall have the meaning set forth in Section 5.2.
-----------
"Indemnified Party" and "Indemnifying Party" shall have the respective
meanings set forth in Section 10.5.1.
--------------
"Intellectual Property" shall have the meaning set forth in
Section 2.3.4.
-------------
"Interim Operation" shall have the meaning set forth in
Section 2.11.3.
--------------
"KSBW" shall have the meaning set forth in the Recitals.
"KSBW Receivables" shall have the meaning set forth in Section 2.7.1.
-------------
"Laws" means any federal, state or local law, foreign law, statute,
code, ordinance, regulation, order, writ, injunction, judgment or decree
applicable to the specified Person and to the businesses and assets thereof.
"Leased Property" shall have the meaning set forth in
Section 2.3.2(b).
----------------
"Liabilities" shall mean, as to any Person, all debts, adverse claims,
liabilities and obligations, direct, indirect, absolute or contingent of such
Person, whether accrued, vested or otherwise, whether in contract, tort, strict
liability or otherwise and whether or not actually reflected, or required by
generally accepted accounting principles to be reflected, in such Person's
balance sheets or other books and records.
"License Assets" shall mean individually the STC License Assets and
the HAT License Assets.
"Like-Kind Exchange" shall have the meaning set forth in the Recitals.
ANNEXI-6
"LKE Facilitation Transactions" shall have the meaning set forth in
Section 6.12.4.
--------------
"Losses" means any and all demands, claims, complaints, actions or
causes of action, suits, proceedings, investigations, arbitrations, assessments,
losses, damages, liabilities, obligations (including those arising out of any
action, such as any settlement or compromise thereof or judgment or award
therein) and any costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements.
"Material Adverse Effect" on either party's Stations means a material
adverse effect on the business, assets or financial condition of such Stations
taken as a whole, except for any such material adverse effect resulting from (a)
general economic conditions applicable to the television broadcast industry, (b)
general conditions in the markets in which such Stations operate, (c)
circumstances that are not likely to recur and either have been substantially
remedied or can be substantially remedied without substantial cost or delay, or
(d) the refusal by the other party to consent to any new Program Contract.
"Multiemployer Plan" means any Plan described in Section 3(37) of
ERISA.
"Network Agreements" shall have the meaning set forth in
Section 2.3.8.
-------------
"Non-Transferred Employees" shall have the meaning set forth in
Section 6.9.1.
-------------
"Operating Contracts" shall have the meaning set forth in
Section 2.3.9.
-------------
"Ordinary Course of Business" of a party's Stations means the ordinary
course of business of such Stations consistent with past practices of such party
both with respect to type and amount; any actions taken pursuant to the
requirements of law or contracts existing on the date hereof shall be deemed to
be action in the Ordinary Course of Business.
"Permitted Encumbrances" means (a) Encumbrances of a landlord, or
other statutory lien not yet due and payable, or a landlord's liens arising in
the Ordinary Course of Business, (b) Encumbrances arising in connection with
equipment or maintenance financing or leasing under the terms of a Station
Contract set forth on the Schedules, (c) Encumbrances arising pursuant to the
terms of leases on Real Property or Leased Property as set forth on Schedule
--------
2.3.1 and Schedule 2.3.8 which are subject to any lease or sublease to a third
----- --------------
party, (d) Encumbrances for Taxes not yet due and payable or which are being
contested in
ANNEXI-7
good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the contesting party's books in accordance with
generally accepted accounting principles, (e) Encumbrances that do not
materially detract from the value of any of the Assets or materially interfere
with the use thereof as currently used, or (f) those Encumbrances on Schedule
--------
3.8 and Schedule 3.10 with respect to STC and those Encumbrances on Schedule 4.8
--- ------------- ------------
and Schedule 4.10 with respect to HAT.
-------------
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization, other form
of business or legal entity or Governmental Authority.
"Plan" of either party means any plan, program or arrangement, whether
or not written, that is or was an "employee benefit plan" as such term is
defined in Section 3(3) of ERISA and (a) which was or is established or
maintained by such party or any ERISA Affiliate for the benefit of any current
or former employees of its Stations; (b) to which such party contributed or was
obligated to contribute or to fund or provide benefits or had any liability
(whether actual or contingent) with respect to any of its assets or otherwise
for the benefit of any current or former employees of its Stations; or (c) which
provides or promises benefits to any person who performs or who has performed
services for its Stations and because of those services is or has been (i) a
participant therein or (ii) entitled to benefits thereunder.
"Preferred STC Ownership" shall have the meaning set forth in
Section 6.12.4.
--------------
"Program Contracts" shall have the meaning set forth in Section 2.3.5.
-------------
"Proration Amount" shall have the meaning set forth in Section 2.6.1.
-------------
"Proration Items" shall mean any power and utility charges, business
and license fees (including retroactive adjustments thereof), sales and service
charges, commissions, special assessments, and rental payments and personal and
real estate Taxes and assessments with respect to the Real Property, taxes
(except for Taxes arising from the transfer of the Assets hereunder), deposits,
Trade-out Agreements, unused sick leave pursuant to any collective bargaining
agreements and other similar prepaid and deferred items and any other operating
expenses incurred in the Ordinary Course of Business (except with respect to
Program Contracts, only those payments due and payable during the month in which
the Closing Date occurs shall be prorated). The parties acknowledge and agree
that there shall be excluded from Proration Items the following: (a) severance
pay relating to any employee of the Transferring Party who shall have been
ANNEXI-8
terminated prior to the Exchange Date, (b) any Liabilities not being assumed by
the Recipient Party in accordance with Section 2.8, and (c) all accrued and
-----------
unpaid vacation pay.
"Providence Assets" shall have the meaning set forth in Section 2.12.
------------
"QI" shall have the meaning set forth in Section 6.12.5.
--------------
"Qualified Plan" of either party means a Plan that satisfies, or is
intended by such party to satisfy, the requirements for tax qualification
described in Section 401 of the Code including, without limitation, any Plan
that was terminated on or after July 1, 1989, as to which such party may have
any actual or contingent liability.
"Real Property" shall have the meaning set forth in Section 2.3.2(a).
----------------
"Recipient Party" shall have the meaning set forth in Section 2.3.
-----------
"Restricted Contracts" shall have the meaning set forth in
Section 6.2.10(a).
-----------------
"SALC" shall have the meaning set forth in Section 2.2.
-----------
"Schedule Review Period" shall have the meaning set forth in
Section 6.10(a).
---------------
"Schedules" shall mean the disclosure schedules delivered by the
parties in connection herewith.
"Section 1031 Schedule" shall have the meaning set forth in
Section 2.8.2.
-------------
"▇▇▇▇▇▇▇▇" shall have the meaning set forth in the Recitals.
"▇▇▇▇▇▇▇▇ Agreement" shall have the meaning set forth in the Recitals.
"▇▇▇▇▇▇▇▇ Collection Period" shall have the meaning set forth in
Section 6.4.
-----------
"▇▇▇▇▇▇▇▇ Documents" shall mean the ▇▇▇▇▇▇▇▇ Agreement and any other
agreements, documents or certificates contemplated thereby or delivered in
connection therewith.
ANNEXI-9
"▇▇▇▇▇▇▇▇ Filing Date" shall have the meaning set forth in
Section 3.9.3.
-------------
"▇▇▇▇▇▇▇▇ Liabilities" shall have the meaning set forth in
Section 2.10.1.
--------------
"▇▇▇▇▇▇▇▇ Parent" shall have the meaning set forth in the Recitals.
"▇▇▇▇▇▇▇▇ Receivables" shall have the meaning set forth in
Section 2.4.2.
-------------
"Station" and "Stations" shall have the meaning set forth in the
Recitals.
"Station Contracts" shall have the meaning set forth in Section 2.3.9.
-------------
"STC" shall have the meaning set forth in the Preamble.
"STC Affiliated Transactions" shall have the meaning set forth in
Section 3.19.
------------
"STC Assets" shall have the meaning set forth in Section 2.1.
-----------
"STC Balance Sheets" shall have the meaning set forth in
Section 3.5.1.
-------------
"STC Benefit Plans" shall have the meaning specified in
Section 3.14.1.
--------------
"STC Broadcasting" shall have the meaning set forth in the Preamble.
"STCBV" shall have the meaning set forth in the Preamble.
"STCBV Sub" shall have the meaning set forth in the Preamble.
"STC Documents" shall mean the ▇▇▇▇ of Sale and Assignment of Assets,
the Assignment of FCC Licenses, the Assignment of Contracts and Leases, the
Assumption Agreement, and the real property deeds delivered pursuant to
Section 9.3.1(f).
----------------
"STC Exchange Entities" shall have the meaning set forth in the
Preamble.
ANNEXI-10
"STC Excluded Assets" shall have the meaning set forth in Section 2.4.
-----------
"STC Indemnified Party" shall have the meaning set forth in
Section 10.6(b).
---------------
"STC License Assets" shall mean the FCC Licenses of the STC Stations.
"STC License Company" shall have the meaning set forth in the
Preamble.
"STC Non-License Assets" shall have the meaning set forth in
Section 2.1.
-----------
"STC Parties" shall have the meaning set forth in the Preamble.
"STC Stations" shall have the meaning set forth in the Recitals.
"STC Retirement Plan" shall have the meaning set forth in
Section 6.8.5.
-------------
"STC Transfer Date" shall have the meaning ascribed to such term under
the ▇▇▇▇▇▇▇▇ Agreement.
"Tax Claim" shall have the meaning set forth in Section 10.6(c).
---------------
"Tax Increase" shall have the meaning set forth in Section 10.6(b).
---------------
"Taxes" means all federal, state and local taxes (including, without
limitation, income, profit, franchise, sales, use, real property, personal
property, ad valorem, excise, employment, social security and wage withholding
taxes) and installments of estimated taxes, assessments, deficiencies, levies,
imports, duties, license fees, registration fees, withholdings, or other similar
charges of every kind, character or description imposed by any Governmental
Authorities.
"Tax Returns" of either party means all federal, state, local, foreign
and other applicable Tax returns, declarations of estimated Tax reports required
to be filed by such party in connection with the business and operations of its
Stations (without regard to extensions of time permitted by law or otherwise).
"TBA" means any time brokerage agreement, local marketing arrangement,
joint sales agreement, joint operating agreement, limited management agreement
or other similar agreement or contract.
ANNEXI-11
"Time Sales Agreements" shall have the meaning set forth in
Section 2.3.7.
-------------
"Trade-out Agreements" shall have the meaning set forth in
Section 2.3.6.
-------------
"Transfer Taxes" shall have the meaning set forth in Section 12.3(a).
---------------
"Transferred Employees" shall have the meaning set forth in
Section 6.9.1.
-------------
"Transferring Party's Plan" shall have the meaning set forth in
Section 6.9.4.
-------------
"Tuscaloosa" shall have the meaning set forth in the Recitals.
"Welfare Plan" means an "employee welfare benefit plan" as such term
is defined in Section 3(1) of ERISA.
"WDTN" shall have the meaning set forth in the Recitals.
"WDTN Receivables" shall have the meaning set forth in Section 2.7.1.
-------------
"WFFF" shall have the meaning set forth in the Recitals.
"WFFF Liabilities" shall mean all Liabilities of STC relating solely
to WFFF under the ▇▇▇▇▇▇▇▇ Documents (or Liabilities relating solely to WFFF
assumed pursuant to the terms thereof), and all Liabilities arising out of
events occurring on or after the Non-License Transfer (as defined in the
▇▇▇▇▇▇▇▇ Agreement) relating solely to the business and operations of WFFF.
"WFFF TBA" shall have the meaning set forth in Section 2.11.3.
--------------
"WNAC" shall have the meaning set forth in the Recitals.
"WNAC/Argyle" shall have the meaning set forth in the Recitals.
"WNNE" shall have the meaning set forth in the Recitals.
"WNNE Licensee" shall have the meaning set forth in the Recital.
"Working Capital Advance" shall have the meaning set forth in
Section 2.14.
------------
"WPRI" shall have the meaning set forth in the Recitals.
ANNEXI-12
"WPTZ" shall have the meaning set forth in the Recitals.
"WPTZ Licensee" shall have the meaning set forth in the Recitals.
ANNEXI-13
EXHIBIT A
---------
FORM OF ▇▇▇▇ OF SALE AND ASSIGNMENT OF ASSETS
THIS ▇▇▇▇ OF SALE AND ASSIGNMENT OF ASSETS is made as of this ____ day
of ____________, 199__, by STC BROADCASTING, INC., a Delaware corporation ("STC
Broadcasting").
WHEREAS, STC Broadcasting, STC Broadcasting of Vermont, Inc., STC
License Company and STC Broadcasting of Vermont Subsidiary, Inc., and Hearst-
Argyle Stations, Inc. ("HAT") are parties to that certain Asset Exchange
Agreement dated as of February 18, 1998 (the "Exchange Agreement");
WHEREAS, pursuant to the Exchange Agreement, STC Broadcasting has
agreed to transfer to HAT, and HAT has agreed to accept from STC Broadcasting
the STC Assets (as defined therein) with respect to television broadcast
stations WPTZ (TV), Channel ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, WNNE-TV, Channel 31,
Hartford, Vermont, and KSBW (TV), Channel 8, Salinas, California (collectively,
the "Stations"), all in accordance with and subject to the terms and conditions
set forth in the Exchange Agreement; and
WHEREAS, all capitalized terms used herein shall have the meanings
ascribed to such terms in the Exchange Agreement unless otherwise defined
herein.
NOW, THEREFORE, for and in consideration of the conveyance of the STC
Assets to HAT and in further consideration of the mutual covenants and
agreements contained in the Exchange Agreement, and pursuant to the terms of the
Exchange Agreement, STC Broadcasting hereby assigns, transfers, conveys and
delivers to HAT, and HAT hereby accepts from STC Broadcasting, all of STC
Broadcasting's right, title and interest in, to and under the following assets
(including any contracts or agreements that are entered into and any assets that
are acquired between the date of the Exchange Agreement and the Closing Date in
accordance with the terms therein), but excluding the Excluded Assets described
in Section 2.4 of the Exchange Agreement:
-----------
1. All of the furniture, fixtures, furnishings, machinery, computers,
equipment, inventory, spare parts, supplies, office materials and other tangible
property of every kind and description owned, leased or used by STC Broadcasting
in connection with the business and operations of the Stations, together with
any replacements thereof and additions thereto made before the Closing Date, and
less any retirements or dispositions thereof made before the Closing Date in the
Ordinary Course of Business, including, without limitation, those items which
have a book value in excess of Five Thousand Dollars ($5,000),
all of which are set forth and identified in Schedule 2.3.3 of the Exchange
--------------
Agreement.
2. All of the service marks, copyrights, franchises, trademarks,
trade names, jingles, slogans, logotypes and other similar intangible assets
maintained, owned, leased or used by STC Broadcasting in connection with the
business and operations of the Stations (including any and all applications,
registrations, extensions and renewals relating thereto) (the "Intellectual
Property"), and all of the rights, benefits and privileges associated therewith
including, without limitation, the right to use the call letters for the
Stations identified in Schedule 2.3.4 of the Exchange Agreement.
--------------
3. The program licenses and contracts under which STC Broadcasting is
authorized to broadcast programs on the Stations (collectively the "Program
Contracts") including, without limitation, (a) all program (cash and non-cash)
licenses and contracts listed on Schedule 2.3.5 of the Exchange Agreement, and
--------------
(b) any other such program contracts that are entered into between the date of
the Exchange Agreement and the Closing Date in accordance with the terms of the
Exchange Agreement.
4. All contracts and agreements (excluding Program Contracts)
pursuant to which commercial air time on the Stations has been sold, traded or
bartered in consideration for any property or services in lieu of or in addition
to cash (collectively, the "Trade-out Agreements") including, without
limitation, those set forth and identified in Schedule 2.3.6 of the Exchange
--------------
Agreement.
5. All contracts and agreements pursuant to which commercial air time
on the Stations has been sold for cash (collectively the "Time Sales
Agreements").
6. All network affiliation agreements and other contracts of the
Stations with a television broadcast network (collectively, the "Network
Agreements") including, without limitation, those listed on Schedule 2.3.8 of
--------------
the Exchange Agreement.
7. All other operating contracts and agreements relating to the
business or operations of the Stations, all material such contracts as of the
date of the Exchange Agreement being listed on Schedule 2.3.9 of the Exchange
--------------
Agreement (including, without limitation, all employment agreements and talent
contracts, all leases and subleases relating to the Leased Property, all
agreements relating to any motor vehicles, and all national and local
advertising representation agreements for the Stations), together with all
contracts and agreements that will be entered into between the date of the
Exchange Agreement and the Closing Date in accordance with the terms of the
Exchange Agreement (collectively, the "Operating Contracts" and together with
the Program Contracts, Trade-out Agreements, Time Sales Agreements and Network
Agreements, the "Station Contracts").
-2-
8. All automotive equipment and motor vehicles maintained, owned,
leased or otherwise used by STC Broadcasting in connection with the business and
operations of the Stations, including, without limitation, those set forth and
described in Schedule 2.3.10 of the Exchange Agreement.
---------------
9. All engineering, business and other books, papers, logs, files
and records pertaining to the business and operations of the Stations, but not
the organizational documents and records of STC Broadcasting.
10. All translators, earth stations, and other auxiliary facilities,
and all applications therefor owned, leased or otherwise used or useful by STC
Broadcasting in connection with the business and operations of the Stations,
including, without limitation, those set forth and described in Schedule 2.3.12
---------------
of the Exchange Agreement.
11. All permits, approvals, orders, authorizations, consents,
licenses, certificates, franchises, exemptions of, or filings or registrations
with, any court or Governmental Authority (other than the FCC) in any
jurisdiction, which have been issued or granted to or are owned or used or
useful by STC Broadcasting in connection with the business and operations of the
Stations and all pending applications therefor.
12. The business of the Stations as a "going concern", customer
relationships and goodwill.
13. All Accounts Receivable arising out of the business and
operations of KSBW, and all Accounts Receivable arising out of the business and
operations of the Burlington Stations from the STC Transfer Date under the
▇▇▇▇▇▇▇▇ Agreement.
14. All of STC's rights under or pursuant to the ▇▇▇▇▇▇▇▇ Documents
except to the extent that such rights pertain to or affect WFFF.
15. All cash, cash equivalents or deposits held by STC arising out of
the business and operations of the Burlington Stations from and after the STC
Transfer Date, and all interest payable in connection with any such cash, cash
equivalents or deposits, but excluding any proceeds of a WFFF Disposition (as
defined in that certain Credit Agreement to be entered into by HAT and STCBV Sub
in connection with the Burlington Financing Amount).
Notwithstanding anything to the contrary hereinabove or in the
Exchange Agreement, specifically excluded from this ▇▇▇▇ of Sale and Assignment
of Assets are the Excluded Assets.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF STC BROADCASTING MADE
IN THE EXCHANGE AGREEMENT, STC
-3-
BROADCASTING MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ASSETS
CONVEYED HEREBY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR INTENDED USE OR FITNESS FOR A PARTICULAR USE.
TO HAVE AND TO HOLD the said described property to STC Broadcasting
and its successors and assigns for their exclusive use and benefit forever.
STC Broadcasting does hereby agree, from and after the date hereof
upon the request of HAT, to execute such other documents as HAT may reasonably
require in order to obtain the full benefit of this ▇▇▇▇ of Sale and Assignment
of Assets and STC Broadcasting's obligations hereunder.
-4-
IN WITNESS WHEREOF, the undersigned has caused this ▇▇▇▇ of Sale and
Assignment of Assets to be duly executed, as of the date first written above.
STC BROADCASTING, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-5-
EXHIBIT A
---------
FORM OF ▇▇▇▇ OF SALE AND ASSIGNMENT OF ASSETS
THIS ▇▇▇▇ OF SALE AND ASSIGNMENT OF ASSETS is made as of this ___ day
of_________ 199 by HEARST-ARGYLE STATIONS, INC., a Nevada corporation ("HAT").
WHEREAS, STC Broadcasting, Inc. ("STC Broadcasting"), STC Broadcasting of
Vermont, Inc., STC License Company and STC Broadcasting of Vermont Subsidiary,
Inc., and HAT are parties to that certain Asset Exchange Agreement dated as of
February 18, 1998 (the "Exchange Agreement");
WHEREAS, pursuant to the Exchange Agreement, HAT has agreed to transfer to
STC Broadcasting, and STC Broadcasting has agreed to accept from HAT the HAT
Assets (as defined therein) with respect to television broadcast stations
WDTN(TV), Channel 2, Dayton, Ohio, and WNAC(TV), Channel 64, Providence, Rhode
Island (collectively, the "Stations"), all in accordance with and subject to the
terms and conditions set forth in the Exchange Agreement; and
WHEREAS, all capitalized terms used herein shall have the meanings ascribed
to such terms in the Exchange Agreement unless otherwise defined herein
NOW, THEREFORE, for and in consideration of the conveyance of the HAT
Assets to STC Broadcasting and in further consideration of the mutual covenants
and agreements contained in the Exchange Agreement, and pursuant to the terms of
the Exchange Agreement, HAT hereby assigns, transfers, conveys and delivers to
STC Broadcasting, and STC Broadcasting hereby accepts from HAT, all of HAT's
right, title and interest in, to and under the following assets (including any
contracts or agreements that are entered into and any assets that are acquired
between the date of the Exchange Agreement and the Closing Date in accordance
with the terms therein), but excluding the Excluded Assets described in Section
2.4 of the Exchange Agreement:
1. All of the furniture, fixtures, furnishings, machinery, computers,
equipment, inventory, spare parts, supplies, office materials and other tangible
property of every kind and description owned, leased or used by HAT in
connection with the business and operations of the Stations, together with any
replacements thereof and additions thereto made before the Closing Date, and
less any retirements or dispositions thereof made before the Closing Date in the
Ordinary Course of Business, including, without limitation, those items which
have a book value in excess of Five Thousand Dollars ($5,000), all of which are
set forth and identified in Schedule 2.3.3 of the Exchange Agreement.
2. All of the service marks, copyrights, franchises, trademarks, trade
names, jingles, slogans, logotypes and other similar intangible assets
maintained, owned, leased or used by HAT in connection with the business and
operations of the Stations (including any and all applications, registrations,
extensions and renewals relating thereto) (the "Intellectual Property"), and all
of the rights, benefits and privileges associated therewith including, without
limitation, the right to use the call letters for the Stations identified in
Schedule 2.3.4 of the Exchange Agreement.
--------------
3. The program licenses and contracts under which HAT is authorized to
broadcast programs on the Stations (collectively the "Program Contracts")
including, without limitation, (a) all program (cash and non-cash) licenses and
contracts listed on Schedule 2.3.5 of the Exchange Agreement, and (b) any other
--------------
such program contracts that are entered into between the date of the Exchange
Agreement and the Closing Date in accordance with the terms of the Exchange
Agreement.
4. All contracts and agreements (excluding Program Contracts)
pursuant to which commercial air time on the Stations has been sold, traded or
bartered in consideration for any property or services in lieu of or in addition
to cash (collectively, the "Trade-out Agreements") including, without
limitation, those set forth and identified in Schedule 2.3.6 of the Exchange
--------------
Agreement.
5. All contracts and agreements pursuant to which commercial air time on
the Stations has been sold for cash (collectively the "Time Sales Agreements").
6. All network affiliation agreements and other contracts of the Stations
with a television broadcast network (collectively, the "Network Agreements")
including, without limitation, those listed on Schedule 2.3.8 of the Exchange
--------------
Agreement.
7. All other operating contracts and agreements relating to the business or
operations of the Stations, all material such contracts as of the date of the
Exchange Agreement being listed on Schedule 2.3.9 of the Exchange Agreement
--------------
(including, without limitation, the Clear Channel Agreements, all employment
agreements and talent contracts, all leases and subleases relating to the Leased
Property, all agreements relating to any motor vehicles, and all national and
local advertising representation agreements for the Stations), together with all
contracts and agreements that will be entered into between the date of the
Exchange Agreement and the Closing Date in accordance with the terms of the
Exchange Agreement (collectively, the "Operating Contracts" and together with
the Program Contracts, Trade-out Agreements, Time Sales Agreements and Network
Agreements, the "Station Contracts").
-2-
8. All automotive equipment and motor vehicles maintained, owned, leased or
otherwise used by HAT in connection with the business and operations of the
Stations, including, without limitation, those set forth and described in
Schedule 2.3.10 of the Exchange Agreement.
---------------
9. All engineering, business and other books, papers, logs,
files and records pertaining to the business and operations of the Stations, but
not the organizational documents and records of HAT.
10. All translators, earth stations, and other auxiliary
facilities, and all applications therefor owned, leased or otherwise used or
useful by HAT in connection with the business and operations of the Stations,
including, without limitation, those set forth and described in Schedule 2.3.12
---------------
of the Exchange Agreement.
11. All permits, approvals, orders, authorizations, consents, licenses,
certificates, franchises, exemptions of, or filings or registrations with, any
court or Governmental Authority (other than the FCC) in any jurisdiction, which
have been issued or granted to or are owned or used or useful by HAT in
connection with the business and operations of the Stations and all pending
applications therefor.
12. The business of the Stations as a `"going concern", customer
relationships and goodwill.
13. All Accounts Receivable arising out of the business and operations of
WDTN.
Notwithstanding anything to the contrary hereinabove or in the Exchange
Agreement, specifically excluded from this ▇▇▇▇ of Sale and Assignment of Assets
are the Excluded Assets.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF HAT MADE IN THE EXCHANGE
AGREEMENT, HAT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ASSETS
CONVEYED HEREBY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR INTENDED USE OR FITNESS FOR A PARTICULAR USE.
TO HAVE AND TO HOLD the said described property to HAT and its successors
and assigns for their exclusive use and benefit forever.
HAT does hereby agree, from and after the date hereof upon the request of
STC Broadcasting, to execute such other documents as STC Broadcasting may
reasonably require in order to obtain the full benefit of this ▇▇▇▇ of Sale and
Assignment of Assets and HAT'S obligations hereunder.
-3-
IN WITNESS WHEREOF, the undersigned has caused this ▇▇▇▇ of Sale and
Assignment of Assets to be duly executed, as of the date first written above.
HEARST-ARGYLE STATIONS, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
-4-
EXHIBIT B
---------
FORM OF ASSIGNMENT OF FCC LICENSES
THIS ASSIGNMENT OF FCC LICENSES is made as of this ____ day of
_____________________, 199__, by STC LICENSE COMPANY, a Delaware corporation
("Assignor").
WHEREAS, Assignor, STC Broadcasting, Inc., STC Broadcasting of Vermont,
Inc. and STC Broadcasting of Vermont Subsidiary, Inc., and Hearst-Argyle
Stations, Inc. ("Assignee") are parties to that certain Asset Exchange Agreement
dated as of February 18, 1998 (the "Exchange Agreement"), providing, among other
things, for the sale, assignment, transfer, conveyance and delivery to Assignee
of the STC License Assets (as defined therein);
WHEREAS, in the Exchange Agreement it was agreed, subject to the
granting of the necessary consents by the Federal Communications Commission (the
"Commission"), that Assignor would assign to Assignee the licenses and other
authorizations issued by the Commission for operation of television broadcast
stations WPTZ (TV), Channel ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, WNNE-TV, Channel 31,
Hartford, Vermont, and KSBW (TV), Channel 8, Salinas, California (collectively,
the "Stations") together with certain auxiliary facilities;
WHEREAS, the Commission has authorized the assignment of such licenses
and other authorizations from Assignor to Assignee; and
WHEREAS, all capitalized terms used herein shall have the meanings
ascribed to such terms in the Exchange Agreement unless otherwise defined
herein.
NOW, THEREFORE, in consideration of the conveyance by Assignee of the
HAT Assets and the payment by Assignee of the cash consideration pursuant to the
Exchange Agreement and in further consideration of the mutual covenants and
agreements contained in the Exchange Agreement, and pursuant to the terms of the
Exchange Agreement, Assignor does hereby assign, transfer, convey and deliver to
Assignee, and Assignee hereby accepts from Assignor, all of Assignor's right,
title and interest in, to and under the licenses and other authorizations issued
by the Commission with respect to the Stations, including, without limitation
those set forth and identified in Schedule 2.3.1 to the Exchange Agreement.
--------------
IN WITNESS WHEREOF, the undersigned has caused this Assignment of FCC
Licenses to be duly executed as of the day and year first written above.
STC LICENSE COMPANY
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-2-
EXHIBIT B
---------
FORM OF ASSIGNMENT OF FCC LICENSES
THIS ASSIGNMENT OF FCC LICENSES is made as of this _____ day of __________,
199___, by HEARST-ARGYLE STATIONS, INC., a Nevada corporation ("Assignor").
WHEREAS, STC Broadcasting, Inc., STC Broadcasting of Vermont, Inc., STC
license Company ("Assignee") and STC Broadcasting of Vermont Subsidiary, Inc.,
and Assignor are parties to that certain Asset Exchange Agreement dated as of
February 18, 1998 (the "Exchange Agreement"), providing, among other things, for
the sale, assignment, transfer, conveyance and delivery to Assignee of the HAT
License Assets (as defined therein);
WHEREAS, in the Exchange Agreement it was agreed, subject to the granting
of the necessary consents by the Federal Communications Commission (the
"Commission"), that Assignor would assign to Assignee the licenses and, other
authorizations issued by the Commission for operation of television broadcast
stations WDTN(TV), Channel 2, Dayton, Ohio ("WDTN"), and WNAC(TV), Channel 64,
Providence, Rhode Island (collectively, the "Stations") together with certain
auxiliary facilities (and in the case of WDTN, all such licenses and other
authorizations shall be assigned by Assignee immediately thereafter to ▇▇▇▇▇
Acquisition license Company);
WHEREAS, the Commission has authorized the assignment of such licenses and
other authorizations from Assignor to Assignee; and
WHEREAS, all capitalized terms used herein shall have the meanings ascribed
to such terms in the Exchange Agreement unless otherwise defined herein.
NOW, THEREFORE, in consideration of the conveyance by Assignee of the STC
Assets pursuant to the Exchange Agreement and in further consideration of the
mutual covenants and agreements contained in the Exchange Agreement, and
pursuant to the terms of the Exchange Agreement, Assignor does hereby assign,
transfer, convey and deliver to Assignee, and Assignee hereby accepts from
Assignor, all of Assignor's right, title and interest in, to and under the
licenses and other authorizations issued by the Commission with respect to the
Stations, including, without limitation those set forth and identified in
Schedule 2.3.1 to the Exchange Agreement.
--------------
IN WITNESS WHEREOF, the undersigned has caused this Assignment of FCC
licenses to be duly executed as of the day and year first written above.
HEARST-ARGYLE STATIONS, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
-2-
EXHIBIT C
---------
FORM OF ASSIGNMENT OF CONTRACTS AND LEASES
THIS ASSIGNMENT OF CONTRACTS AND LEASES is made as of this _____ day
of ________, 199__, by STC BROADCASTING, INC., a Delaware corporation
("Assignor").
WHEREAS, Assignor, STC Broadcasting of Vermont, Inc., STC License
Company and STC Broadcasting of Vermont Subsidiary, Inc., and Hearst-Argyle
Stations, Inc. ("Assignee") are parties to that certain Asset Exchange Agreement
dated as of February 18, 1998 (the "Exchange Agreement"), providing, among other
things, for the assignment, transfer, conveyance and delivery to Assignee of the
STC Assets (as defined therein), with respect to television broadcast stations
WPTZ-TV, Channel ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, WNNE-TV, Channel 31, Hartford,
Vermont, and KSBW (TV), Channel 8, Salinas, California (collectively, the
"Stations") including those assets conveyed by this Assignment of Contracts and
Leases;
WHEREAS, all capitalized terms used herein shall have the meanings
ascribed to such terms in the Exchange Agreement unless otherwise defined
herein.
NOW, THEREFORE, in consideration of the conveyance by Assignee of the
HAT Assets and the payment by Assignee of the cash consideration pursuant to the
Exchange Agreement and in further consideration of the mutual covenants and
agreements contained in the Exchange Agreement, and pursuant to the terms of the
Exchange Agreement, Assignor hereby bargains, assigns, transfers, conveys and
delivers to Assignee and its successors and assigns all of Assignor's right,
title and interest in and to all contracts, agreements, leases, commitments and
understandings owned or held by Assignor and used or useful in connection with
the business and operation of the Stations, including, without limitation, the
Program Contracts set forth and identified in Schedule 2.3.5 to the Exchange
--------------
Agreement, the Trade-Out Agreements set forth and identified in Schedule 2.3.6
--------------
to the Exchange Agreement, the Network Agreements set forth and identified in
Schedule 2.3.8 to the Exchange Agreement, and the Operating Agreements set forth
--------------
and identified in Schedule 2.3.9 to the Exchange Agreement, together with those
--------------
Program Contracts, Trade-Out Agreements, Network Agreements and Operating
Contracts that are entered into between the date of the Exchange Agreement and
the Closing Date in accordance with the terms therein.
Notwithstanding anything to the contrary herein above or in the
Exchange Agreement, specifically excluded from this Assignment of Contracts and
Leases are the Excluded Assets.
IN WITNESS WHEREOF, Assignor has caused this Assignment of Contracts
and Leases to be executed as of the day and year first above written.
STC BROADCASTING, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-2-
EXHIBIT C
---------
FORM OF ASSIGNMENT OF CONTRACTS AND LEASES
THIS ASSIGNMENT OF CONTRACTS AND LEASES is made as of this _____ day of
____________, 199___, by HEARST-ARGYLE STATIONS, INC., a Nevada corporation
("Assignor").
WHEREAS, STC Broadcasting, Inc. (the "Assignee"), STC Broadcasting of
Vermont, Inc., STC License Company and STC Broadcasting of Vermont Subsidiary,
Inc., and Assignor are parties to that certain Asset Exchange Agreement dated as
of February 18, 1998 (the "Exchange Agreement"), providing, among other things,
for the assignment, transfer, conveyance and delivery to Assignee of the HAT
Assets (as defined therein), with respect to television broadcast stations
WDTN(TV), Channel 2, Dayton, Ohio, and WNAC(TV), Channel 64, Providence, Rhode
Island (collectively, the "Stations") including those assets conveyed by this
Assignment of Contracts and Leases;
WHEREAS, all capitalized terms used herein shall have the meanings ascribed
to such terms in the Exchange Agreement unless otherwise defined herein.
NOW, THEREFORE, in consideration of the conveyance by Assignee of the STC
Assets pursuant to the Exchange Agreement and in further consideration of the
mutual covenants and agreements contained in the Exchange Agreement, and
pursuant to the terms of the Exchange Agreement, Assignor hereby bargains,
assigns, transfers, conveys and delivers to Assignee and its successors and
assigns all of Assignor's right, title and interest in and to all contracts,
agreements, leases, commitments and understandings owned or held by Assignor and
used or useful in connection with the business and operation of the Stations,
including, without limitation, the Program Contracts set forth and identified in
Schedule 2.3.5 to the Exchange Agreement, the Trade-Out Agreements set forth and
--------------
identified in Schedule 2.3.6 to the Exchange Agreement, the Network Agreements
--------------
set forth and identified in Schedule 2.3.8 to the Exchange Agreement, and the
--------------
Operating Agreements set forth and identified in Schedule 2.3.9 to the Exchange
--------------
Agreement (including the Clear Channel Agreements), together with those Program
Contracts, Trade-Out Agreements, Network Agreements and Operating Contracts that
are entered into between the date of the Exchange Agreement and the Closing Date
in accordance with the terms therein.
Notwithstanding anything to the contrary herein above or in the Exchange
Agreement, specifically excluded from this Assignment of Contracts and Leases
are the Excluded Assets.
IN WITNESS WHEREOF, Assignor has caused this Assignment of Contracts and
Leases to be executed as of the day and year first above written.
HEARST-ARGYLE STATIONS, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
-2-
EXHIBIT D
---------
FORM OF ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT is made and entered into as of this ____ day
of _________________, 199__, by and among STC BROADCASTING, INC., a Delaware
corporation ("STC Broadcasting"), STC BROADCASTING OF VERMONT, INC., a Delaware
corporation ("STCBV"), STC LICENSE COMPANY, a Delaware corporation ("STC License
Company"), and STC BROADCASTING OF VERMONT SUBSIDIARY, INC., a Delaware
corporation ("STCBV Sub") (STC Broadcasting, STCBV, STC License Company and
STCBV Sub shall be collectively referred to herein as "STC"), and HEARST-ARGYLE
STATIONS, INC., a Nevada corporation ("HAT").
WHEREAS, pursuant to that certain Asset Exchange Agreement dated as of
February 18, 1998 by and among STC and HAT (the "Exchange Agreement"), STC has
agreed to transfer and assign to HAT the STC Assets (as defined therein), for
the consideration and upon the terms and conditions set forth in the Exchange
Agreement;
WHEREAS, the Exchange Agreement provides that HAT shall assume certain
liabilities and obligations of STC, but only such specified liabilities and
obligations; and
WHEREAS, all capitalized terms used herein shall have the meanings
ascribed to such terms in the Exchange Agreement unless otherwise defined
herein.
NOW, THEREFORE, for and in consideration of the transfer of the
aforesaid assets, and in further consideration of the mutual covenants and
agreements contained herein and in the Exchange Agreement, and pursuant to the
Exchange Agreement, the parties hereby agree as follows:
Subject to the limitations contained in the Exchange Agreement, HAT
hereby assumes, and agrees to pay, perform and discharge and agrees to indemnify
and hold STC harmless from and against (a) all Liabilities arising out of events
occurring on or after the Closing Date related to the businesses or operations
of the STC Stations or the ownership of the STC Assets by HAT, (b) all
Liabilities arising out of events occurring on or after the Closing Date with
respect to the FCC Licenses of STC License Company, (c) all Liabilities arising
on or after the Closing Date under the Station Contracts of STC (including,
without limitation, Trade-Out Agreements) pursuant to their terms (except for
Liabilities for any breaches thereunder by STC occurring prior to the Closing
Date), (d) all Liabilities for which there is an adjustment in favor of HAT in
connection with the calculating of the Proration Amount, (e) all Liabilities to
employees of the STC Stations to be assumed by HAT in accordance with Section
-------
6.8 and Section 6.9 of the Exchange
--- -----------
Agreement, (f) all Liabilities of STC relating to WNNE and WPTZ under the
▇▇▇▇▇▇▇▇ Documents (or Liabilities relating to WNNE and WPTZ assumed pursuant to
the terms thereof), and (g) all Liabilities arising out of events occurring on
or after the Non-License Transfer (as defined in the ▇▇▇▇▇▇▇▇ Agreement)
relating to the business and operations of WNNE and WPTZ. HAT shall not assume
or be deemed to assume any debts, liabilities or obligations of STC except as
specified in this Assumption Agreement.
HAT does hereby agree, from and after the date hereof upon the request
of STC, to execute such other documents as STC may reasonably require in order
to obtain the full benefit of this Assumption Agreement and HAT's obligations
hereunder.
This Assumption Agreement shall be governed by and construed under and
in accordance with the laws of the State of New York (without regard to the
choice of law provisions thereof).
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Assumption
Agreement to be duly executed on their behalf, on the day and year first above
written.
STC BROADCASTING, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
STC LICENSE COMPANY
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
STC BROADCASTING OF VERMONT, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
STC BROADCASTING OF VERMONT SUBSIDIARY, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
-3-
HEARST-ARGYLE STATIONS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
-4-
EXHIBIT D
---------
FORM OF ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT is made and entered into as of this _____day of
_______________, 199___, by and among STC BROADCASTING, INC., a Delaware
corporation ("STC Broadcasting"), STC BROADCASTING OF VERMONT, INC., a Delaware
corporation ("STCBV"), STC LICENSE COMPANY, a Delaware corporation ("STC License
Company"), and STC BROADCASTING OF VERMONT SUBSIDIARY, INC., a Delaware
corporation ("STCBV Sub") (STC Broadcasting, STCBV, STC License Company and
STCBV Sub shall be collectively referred to herein as "STC"), and HEARST-ARGYLE
STATIONS, INC., a Nevada corporation ("HAT").
WHEREAS, pursuant to that certain Asset Exchange Agreement dated as of
February 18, 1998 by and among STC and HAT (the "Exchange Agreement"), HAT has
agreed to transfer and assign to STC the HAT Assets (as defined therein), for
the consideration and upon the terms and conditions set forth in the Exchange
Agreement;
WHEREAS, the Exchange Agreement provides that STC shall assume certain
liabilities and obligations of HAT, but only such specified liabilities and
obligations; and
WHEREAS, all capitalized terms used herein shall have the meanings ascribed
to such terms in the Exchange Agreement unless otherwise defined herein.
NOW, THEREFORE, for and in consideration of the transfer of the aforesaid
assets, and in further consideration of the mutual covenants and agreements
contained herein and in the Exchange Agreement, and pursuant to the Exchange
Agreement, the parties hereby agree as follows:
Subject to the limitations contained in the Exchange Agreement, STC hereby
assumes, and agrees to pay, perform and discharge and agrees to indemnify and
hold HAT harmless from and against (a) all Liabilities arising out of events
occurring on or after the Closing Date related to the businesses or operations
of the HAT Stations or the ownership of the HAT Assets by STC, (b) all
Liabilities arising out of events occurring on or after the Closing Date with
respect to the FCC Licenses of HAT, (c) all Liabilities arising on or after the
Closing Date under the Station Contracts of HAT (including, without limitation,
Trade-Out Agreements) pursuant to their terms (except for Liabilities for any
breaches thereunder by HAT occurring prior to the Closing Date), (d) all
Liabilities for which there is an adjustment in favor of STC in connection with
the calculation of the Proration Amount, (e) all Liabilities to employees of the
HAT Stations to be assumed by STC in accordance with Section 6.9 of the Exchange
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Agreement.
STC does hereby agree, from and after the date hereof upon the request of
HAT, to execute such other documents as HAT may reasonably require in order to
obtain the full benefit of this Assumption Agreement and STC's obligations
hereunder.
This Assumption Agreement shall be governed by and construed under and in
accordance with the laws of the State of New York (without regard to the choice
of law provisions thereof).
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IN WITNESS WHEREOF, the parties hereto have caused this Assumption
Agreement to be duly executed on their behalf, on the day and year first above
written.
STC BROADCASTING, INC.
By:
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Name:
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Title:
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STC LICENSE COMPANY
By:
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Name:
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Title:
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STC BROADCASTING OF VERMONT, INC.
By:
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Name:
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Title:
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STC BROADCASTING OF VERMONT
SUBSIDIARY, INC.
By:
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Name:
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Title:
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HEARST-ARGYLE STATIONS, INC.
By:
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Name:
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Title:
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-4-
EXHIBIT E TO
ASSET EXCHANGE
AGREEMENT
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CREDIT AGREEMENT
between
STC BROADCASTING OF VERMONT SUBSIDIARY, INC.
as Borrower,
and
HEARST-ARGYLE STATIONS. INC.
as Lender
Dated as of ______________, 1998
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS .................................................. 1
1.1 Defined Terms ................................................ 1
1.2 Other Definitional Provisions ................................ 6
SECTION 2. CREDIT FACILITY .............................................. 6
2.1 Loans; Borrowing Procedures .................................. 6
2.2 Disbursement of Loans ........................................ 7
2.3 Repayment of Principal ....................................... 7
2.4 Payment of Interest; Default Interest ........................ 7
2.5 Pre payments ................................................. 7
2.6 Note ......................................................... 8
SECTION 3. PAYMENTS; TAXES .............................................. 8
3.1 Computation of Interest ...................................... 8
3.2 Payments ..................................................... 8
3.3 Taxes ........................................................ 8
SECTION 4. REPRESENTATIONS AND WARRANTIES ............................... 9
4.1 Organization and Good Standing ............................... 9
4.2 Authorization ................................................ 9
4.3 No Conflicts or Consents ..................................... 9
4.4 Enforceable Obligations ...................................... 9
4.5 Title to Assets .............................................. 9
4.6 Financial Condition .......................................... 10
4.7 No Default ................................................... 10
4.8 No Litigation ................................................ 10
4.9 Security Interests ........................................... 10
4.10 Taxes ........................................................ 10
4.11 Principal Office, Etc. ....................................... 10
4.12 ERISA ........................................................ 10
4.13 Compliance with Law .......................................... 10
4.14 Insurance .................................................... 10
4.15 Purchase Agreements .......................................... 11
SECTION 5. CONDITIONS PRECEDENT ......................................... 11
5.1 Conditions to Initial Loan ................................... 11
5.2 Conditions to Additional Loans ............................... 12
SECTION 6. AFFIRMATIVE COVENANTS ........................................ 13
6.1 Financial Statements, Reports and Documents .................. 13
6.2 Payment of Taxes and Other Indebtedness ...................... 13
6.3 Maintenance of Existence and Rights; Conduct of Business ..... 13
6.4 Notice of Default ............................................ 14
6.5 Other Notices ................................................ 14
6.6 Use of Proceeds .............................................. 14
6.7 Books and Records; Access .................................... 14
i
PAGE
6.8 Compliance with Law .......................................... 14
6.9 Insurance .................................................... 14
6.10 Further Assurances ........................................... 15
6.11 Lien on Assets ............................................... 15
SECTION 7. NEGATIVE COVENANTS ........................................... 15
7.1 Change in Nature of Business ................................. 15
7.2 Limitation on Indebtedness ................................... 15
7.3 Negative Pledge .............................................. 15
7.4 No Restrictions .............................................. 15
7.5 Limitation on Investments .................................... 15
7.6 Limitation on Dividends ...................................... 16
7.7 Amendments; Material Agreements .............................. 16
7.8 Affiliated Transactions ...................................... 16
7.9 Issuance of Shares ........................................... 16
7.10 Name, Fiscal Year and Accounting Method ...................... 16
7.11 Liquidation, Mergers, Consolidations and Dispositions of
Substantial Assets ........................................... 16
7.12 Restricted Payments .......................................... 16
7.13 Pension Plans ................................................ 16
7.14 Location of Company .......................................... 16
SECTION 8. EVENTS OF DEFAULT ............................................ 16
8.1 Events of Default ............................................ 16
8.2 Remedies ..................................................... 18
8.3 Default Interest ............................................. 18
SECTION 9. MISCELLANEOUS ................................................ 18
9.1 Amendments ................................................... 18
9.2 Notices ...................................................... 18
9.3 No Waiver; Cumulative Remedies ............................... 20
9.4 Survival of Representations and Warranties ................... 20
9.5 Payment of Lender's Expenses, Indemnity, etc. ................ 20
9.6 Benefit of Agreement; Assignments and Participations ......... 20
9.7 Headings ..................................................... 21
9.8 GOVERNING LAW ................................................ 21
9.9 Submission to Jurisdiction ................................... 21
9.10 WAIVER OF JURY TRIAL ......................................... 21
9.11 Confidentiality .............................................. 21
9.12 FCC Compliance ............................................... 22
EXHIBITS
A - Form of Note
B - Form of Pledge Agreement
C - Form of Guaranty
ii
CREDIT AGREEMENT dated as of _________________, 1998 between STC
BROADCASTING OF VERMONT SUBSIDIARY, INC., a corporation organized under the laws
or Delaware (the "Borrower") and HEARST-ARGYLE STATIONS, INC. a corporation
organized under the laws of Nevada (the "Lender").
WITNESSETH:
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WHEREAS, the Borrower has requested that the Lender commit to make
one or more term loans to it in an aggregate principal amount as described
herein: and
WHEREAS, the Lender is willing to provide such financial
accommodations on, and subject to, the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
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shall have the following meanings:
"Affiliate": shall mean as to any Person, any other Person which,
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directly or indirectly, is in control of, is controlled by, or is under common
control with such Person. For purposes of this definition, control of a Person
shall mean the power, direct or indirect, to direct or cause the direction of
the management and policies of such Person whether through ownership of voting
securities, by contract or otherwise, provided that, in any event, any Person
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that owns directly or indirectly securities having more than 50% of the voting
power for the election of directors (or Persons having similar management
functions) of any other Person shall be deemed to control such other Person.
"Agreement": shall mean this Credit Agreement, as amended,
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supplemented or modified from time to time.
"Applicable Rate": shall mean a rate per annum equal to 7.75%.
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"Bankruptcy Code": shall mean the Federal Bankruptcy Code of 1978, as
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amended from time to time.
"Business Day": shall mean a day on which commercial banks are not
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authorized or required by law or executive order to close in New York, New York.
"Capitalized Lease": shall mean any lease of property, real or
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personal, if the then present value of the minimum rental commitment thereunder
is required to be classified and accounted for as a capital lease on the balance
sheet of the lessee, in accordance with GAAP.
"Cash Equivalents": means (i) marketable direct obligations
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issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one
year from the date of acquisition thereof: (ii) marketable direct obligations
issued by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of acquisition, having one
of the two highest ratings obtainable from either Standard & Poor's Corporation
or ▇▇▇▇▇'▇ Investor Service, Inc.; (iii) commercial paper maturing no more than
one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from Standard & Poor's corporation and at least
P-1 from ▇▇▇▇▇'▇ Investor Service, Inc.; (iv) certificates of deposit or
bankers' acceptances maturing within one year from the date of acquisition
thereof issued by any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or any U.S.
branch of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $200,000,000: and (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (i) above, entered into with any bank meeting the
qualifications specified in clause (iv) above.
"Closing Date": shall mean the date on which each of the conditions
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set forth in subsection 5.1 hereof have been satisfied.
"Code": shall mean the Internal Revenue Code of 1986, as amended from
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time to time.
"Collateral": shall mean the shares of stock of the Borrower owned by
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the Guarantor in which the Lender has been granted a security interest pursuant
to the Pledge Agreement.
"Credit Agreement": means the Credit Agreement, dated as of
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February 28, 1997. among STC Broadcasting, Inc., The Chase Manhattan Bank. as
agent, NationsBank of Texas, N.A., as documentation agent, and any other
financial institutions from time to time party thereto, together with the
related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time.
"Default": shall mean any Event of Default or any event which with
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the giving of notice, the lapse of time, or both, would become an Event of
Default.
"Dividends": shall mean, with respect to any Person, (i) cash
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distributions or any other distributions on, or in respect of, any class of
equity interests or securities of such Person, except for distributions made
solely in equity interests or securities of the same class of such Person, and
(ii) any and all funds, cash or other payments made in respect of the
redemption, repurchase or acquisition of equity interests or securities of such
Person.
"Event of Default": shall mean any of the events specified in
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subsection 8.1.
"Final Maturity Date": shall mean the date which occurs two (2) years
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after the date of the HAT Exchange Agreement.
"GAAP": shall mean United States generally accepted accounting
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principles.
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"Governmental Authority": shall mean any nation or government,
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any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee": shall mean, with respect to any Person, any obligation,
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contingent or otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such indebtedness or other obligation (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
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not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor": shall mean STC Broadcasting of Vermont, Inc., a
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corporation organized under the laws of Delaware.
"Guaranty": shall mean, the guaranty, substantially in the form of
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Exhibit C hereto, executed by the Guarantor in favor of the Lender.
"HAT Acquisition": shall mean the acquisition by the Lender of
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(i) the STC Assets (as defined in the HAT Exchange Agreement) other than the
STC Excluded Assets (as defined in the HAT Exchange Agreement) in exchange for
the HAT Assets (as defined in the HAT Exchange Agreement) or (ii) the Cash
Purchase Assets pursuant to Section 11.1.2 of the HAT Exchange Agreement, all as
more particularly described in the HAT Acquisition Agreement.
"HAT Exchange Agreement": shall mean the Asset Exchange Agreement,
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dated as of February 18, 1998 among Borrower, STC Broadcasting, Inc., STC
Broadcasting of Vermont, Inc., STC License Company, Inc. and Hearst-Argyle
Stations, Inc. with respect to the HAT Acquisition.
"Indebtedness": shall mean as to any Person, at any date, without
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duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, (iv) all obligations of such Person under
Capitalized Leases, (v) all contingent or non-contingent obligations of such
Person to reimburse any bank or other Person in respect of amounts paid or
payable (currently or in the future, on a contingent or non-contingent basis)
under a letter of credit or similar instrument, (vi) all Indebtedness of others
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person, (vii) all obligations of such Person under interest
rate swaps, caps or collars or under any other financial hedging arrangement net
of any amounts receivable by such Person under such arrangements and (viii) all
Indebtedness of others Guaranteed by such Person.
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"Indenture": means the Indenture, dated as of March 25, 1997, between
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STC Broadcasting, Inc., as amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
"Investment": shall mean, when used with reference to any investment
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of any Person:
(a) any loan, advance or other extension of credit, including
obligations represented by bonds, notes or other securities and any Guarantees,
made by it to, or for the benefit of, any other Person; and
(b) any capital contribution by such Person to, or acquisition of
stock or other securities or partnership or membership interests by such Person
in, any other Person, or any other investment evidencing an ownership or other
interest of such Person in any other Person.
"Lien": shall mean any mortgage, pledge, hypothecation, assignment,
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deposit arrangement, encumbrance, security interest, lien (statutory or other)
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever (including, without limitation, any
conditional or installment sale or other title retention agreement, any
Capitalized Lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction in respect of any of the
foregoing).
"Loans": shall mean the loans provided for in subsection 2.1.
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"Material Adverse Effect": shall mean any (i) material adverse effect
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whatsoever upon the validity, performance or enforceability of this Agreement or
any of the Related Documents or any of the transactions contemplated hereby or
thereby, (ii) material adverse effect upon the ability of the Guarantor, the
Borrower or any other Person to fulfill any of their respective obligations
under this Agreement or any of the Related Documents or (iii) material adverse
effect on the business, assets or financial condition of the Guarantor or the
Borrower, except for any such material adverse effect resulting from (a) general
economic conditions applicable to the television broadcast industry, (b) general
conditions in the markets in which the television broadcast stations of the
Borrower operate, or (c) circumstances that are not likely to recur and either
have been substantially remedied or can be substantially remedied without
substantial cost or delay.
"Note": shall have the meaning provided in subsection 2.6.
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"Obligations": shall mean any and all of the debts, obligations and
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liabilities of the Borrower to the Lender provided for or arising under this
Agreement or the Related Documents (including, without limitation, the
obligation to repay the Loans and to pay interest thereon), whether now existing
or hereafter arising, direct or indirect, absolute or contingent, liquidated or
unliquidated, and whether or not from time to time decreased or extinguished and
later increased, created or incurred.
"Permitted Indebtedness": shall mean (i) Indebtedness hereunder and
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under the Related Documents, (ii) Indebtedness constituting current liabilities
for taxes and assessments incurred in the ordinary course of business, provided
such liabilities shall be paid and discharged as provided in subsection 6.2
hereof, (iii) amounts advanced by the Lender to the Borrower
4
pursuant to Section 2.14 of the HAT Exchange Agreement and (iv) other
Indebtedness in an aggregate principal amount not exceeding $50,000.
"Permitted Investments": shall mean investments in cash and Cash
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Equivalents.
"Permitted Liens": shall mean (i) all Liens constituting Permitted
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Encumbrances (as defined in the HAT Purchase Agreement), (ii) pledges or
deposits made to secure payment of worker's compensation insurance (or to
participate in any fund in connection with worker's compensation insurance),
unemployment insurance, pensions or social security programs, (iii) Liens such
as for landlord's, materialmen's, mechanics', warehousemen's and other like
Liens arising in the ordinary course of business, securing Permitted
Indebtedness whose payment is not overdue for a period in excess of 60 days or
which are being contested in good faith and by appropriate proceedings as to
which appropriate reserves in accordance with GAAP or surety, stay or appeal
bonds have been provided, (iv) Liens for taxes, assessments and governmental
charges or levies imposed upon a Person or upon such Person's income or profits
or property, if the same are not yet due and payable or if the same are being
contested in good faith and as to which appropriate reserves in accordance with
GAAP have been provided, (v) Liens arising from good faith deposits in
connection with leases or contracts (other than contracts involving the
borrowing of money), pledges or deposits to secure public or statutory
obligations, deposits to secure (or in lieu of) surety, stay, appeal or customs
bonds, and deposits to secure the payment of taxes, assessments, customs duties
or other similar charges, (vi) encumbrances consisting of zoning restrictions,
easements, or other restrictions on the use of real property, lawfully in effect
from time to time, (vii) Liens imposed by operation of law with respect to any
judgments or orders not constituting, or otherwise arising out of an Event of
Default; (viii) attachment or judgment Liens not constituting, or otherwise
arising out of an Event of Default: and (ix) Liens in favor of a banking
institution arising by operation of law encumbering deposits (including the
right of set-off) held by such banking institution incurred in the ordinary
course of business and which are within the general parameters customary in the
banking industry.
"Person": shall mean an individual, partnership, corporation, limited
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liability company, business trust, joint stock company, trust, unincorporated
association, joint venture. Governmental Authority or other entity of whatever
nature.
"Plan": shall mean any employee benefit plan which is covered by
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Title IV of the Employee Retirement Income Security Act of 1974, as amended.
"Pledge Agreement": shall mean the Pledge Agreement, substantially in
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the form of Exhibit B hereto, executed by the Guarantor in favor of the Lender.
"Purchase Agreements": shall mean (a) the STC Purchase Agreement and
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(b) the HAT Exchange Agreement.
"Related Documents": shall mean the Note, the Guaranty and the Pledge
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Agreement, together with any security agreement, pledge, collateral assignment
and/or mortgage to be executed and delivered pursuant to Section 6.11 hereof and
all instruments, documents, agreements and certificates to be executed and
delivered in connection therewith.
"Subsidiary": shall mean as to any Person, a corporation or other
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business entity of which shares of stock or other ownership interests having
ordinary voting power to elect a
5
majority of the board of directors or other managers of such corporation or
business entity are at the time owned, directly or indirectly through one or
more intermediaries, by such Person.
"STC Acquisition": shall mean the acquisition by the Borrower of the
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Assets (as defined in the STC Purchase Agreement) other than the Excluded Assets
(as defined in the STC Purchase Agreement), all as more particularly described
in the STC Purchase Agreement.
"STC Financing Consents": shall mean all amendments, consents or
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other waivers which may be required under the Credit Agreement or the Indenture.
"STC Purchase Agreement": shall mean the Asset Purchase Agreement,
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dated as of February 3, 1998, among Tuscaloosa Broadcasting. Inc. WPTZ Licensee,
Inc., WNNE Licensee, Inc. and STC Broadcasting of Vermont, Inc. with respect to
the STC Acquisition.
"Taxes": shall have the meaning provided in subsection 3.3.
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"WFFF Disposition": shall mean the transfer or other disposition of
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the assets and rights of Borrower relating to WFFF-TV to any entity ultimately
controlled, directly or indirectly, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
"WFFF-TV": shall mean television broadcast station WFFF-TV, Channel
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▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
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therein, all terms defined in this Agreement shall have the defined meaning's
when used in the Related Documents or any certificate or other document made or
delivered pursuant hereto.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(c) Defined terms in the Agreement shall include in the singular
number the plural and in the plural number the singular.
(d) References in this Agreement to any other agreement, document
or instrument shall, unless the context otherwise requires, include such other
agreement, document or instrument as the same may be from time to time amended,
modified or supplemented.
SECTION 2. CREDIT FACILITY
2.1 Loans; Borrowing Procedures. On the terms and subject to the
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conditions of this Agreement, the Lender agrees to make Loans to the Borrower as
follows:
(a) On the Closing Date the Lender agrees to make a Loan to the
Borrower in an amount equal to either: (i) if the Closing (as defined in the STC
Purchase Agreement) occurs simultaneously with the Closing Date hereunder, the
Purchase Price (as defined in the STC Purchase Agreement) payable by the
Borrower to the Sellers (as defined in the STC Purchase Agreement) upon the
occurrence of the Closing (as defined in the STC Purchase
6
Agreement) or (ii) if the Non-License Transfer (as defined in the STC Purchase
Agreement) occurs simultaneously with the Closing Date hereunder, the portion of
the Purchase Price payable by the Borrower to such Sellers upon the occurrence
of the Non-License Transfer (as defined in the STC Purchase Agreement); provided
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that the amount of such Loan to be advanced under this subsection 2.1(a) shall
not exceed $72,000,000;
(b) Provided the Non-License Transfer (as defined in the STC
Purchase Agreement) occurs before the Closing (as defined in the STC Purchase
Agreement), the Lender agrees to make an additional Loan to the Borrower on the
date of the Closing (as defined in the STC Purchase Agreement), but in no event
after the Final Maturity Date, in an amount equal to the unpaid portion of the
Purchase Price (as defined in the STC Purchase Agreement to be paid by the
Borrower under the STC Purchase Agreement; provided that the amount of the
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additional Loan to be advanced by the Lender under this subsection 2.1(b)
together with the amount of the initial Loan advanced pursuant to subsection
2.1(a) shall not exceed $72,000,000;
(c) Any request for an additional Loan pursuant to subsection
2.1(b) must be delivered in writing to the Lender by not later than 10:00 a.m.,
New York City time, two Business Days before the date on which such Loan is
requested to be made and must specify (i) the amounts of the requested Loan,
(ii) the date of borrowing (which must be a Business Day on or prior to the
Final Maturity Date) and (iii) the account into which such Loan proceeds are to
be disbursed, and certify to the Lender that all conditions to such Loan have
been satisfied; and
(d) Amounts borrowed and prepaid or repaid under this Agreement
may not be reborrowed.
2.2 Disbursement of Loans. Subject to the conditions of this
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Agreement, the Lender shall make Loans available to the Borrower by wire
transferring the amount thereof to such account as the Borrower shall designate
in writing to the Lender.
2.3 Repayment of Principal. Subject to the provisions of
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subsection 2.5 hereof, the Borrower agrees to repay to the Lender the entire
outstanding principal amount of the Loans on the Final Maturity Date.
2.4 Payment of Interest; Default Interest. The Borrower agrees to
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pay interest on the unpaid principal amount of the Loans from time to time
outstanding from and including the Closing Date to but not including the date on
which such Loans are paid in full at a rate per annum equal to the Applicable
Rate. Interest shall be payable quarterly, in arrears, on the last Business Day
of each March, June, September and December (with the first such payment
hereunder being payable in June 1998) and on the Final Maturity Date.
Notwithstanding the foregoing, if the Borrower shall fail to pay any installment
of principal of or interest on any Loan when due, then the Borrower shall pay
interest on the amount in default as provided in subsection 8.3.
2.5 Prepayments. (a) The Borrower may, at any time, prepay the
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then outstanding principal amount of the Loans, in whole or in part, without
premium or penalty. The Borrower shall give the Lender not less than four
Business Days' notice of its intent to prepay the Loans, which notice shall
specify the date and amount of the prepayment. Any notice of prepayment given by
the Borrower shall be irrevocable and obligate the Borrower to make the
prepayment specified in such notice on the date specified therein. Any partial
prepayment of the
7
Loans pursuant to this subsection 2.5(a) shall be in an aggregate principal
amount of at least $5,000,000 or an integral multiple of $1,000,000 in excess
thereof. Any prepayment pursuant to this subsection 2.5(a) shall be accompanied
by the payment of accrued and unpaid interest to the date of such prepayment on
the principal amount prepaid.
(b) The Borrower shall prepay the entire outstanding principal
balance of the Loans on the earlier to occur of (i) the date of the Closing (as
defined in the HAT Exchange Agreement) or (ii) upon the consummation of the
Lender's acquisition of the Cash Purchase Assets (as defined in the Hat Exchange
Agreement) pursuant to Section 11.1.2 of the HAT Exchange Agreement. All
prepayments made hereunder shall be accompanied by the payment of accrued and
unpaid interest on the principal amount prepaid through the date of prepayment.
2.6 Note. The Loan made by the Lender shall be evidenced by a single
----
promissory note of the Borrower, substantially in the form of Exhibit A (the
"Note"), payable to the order of the Lender. The Lender will note on its
----
internal records the date and amount of each Loan, the date and amount of each
repayment of principal thereof and will, prior to any permitted transfer of the
Note, endorse on the schedule (or continuation thereof) attached thereto the
outstanding principal amount of the Loan evidenced thereby. Failure to so record
any such information shall not alter the obligations of the Borrower under this
Agreement or the Note.
SECTION 3. PAYMENTS; TAXES
3.1 Computation of Interest. Interest on the Loan shall be calculated
-----------------------
on the basis of a 365-day year and the actual number of days elapsed.
3.2 Payments. All payments (including prepayments) to be made by the
--------
Borrower on account of principal and interest shall be made without any set-off
or counterclaim whatsoever and shall be made to the Lender, at such account of
the Lender designated for such purpose, in United States Dollars and in
immediately available funds not later than 12:00 noon, New York City time, on
the date on which such payment shall become due. Any payment received after such
time on any Business Day shall be deemed to have been received on the next
Business Day. If any payment hereunder becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
3.3 Taxes. All payments made by the Borrower under this Agreement and
-----
the Related Documents shall be made free and clear of, and without reduction for
or on account of any current or future taxes, levies, imposts, duties, charges,
fees, deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding income and
franchise taxes imposed on the Lender.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement and to make
the Loan herein provided for, the Borrower hereby represents and warrants to the
Lender that:
4.1 Organization and Good Standing. The Borrower is a corporation
------------------------------
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, is duly qualified as a foreign entity and in
good standing in all jurisdictions in which
8
the failure to so qualify would have a Material Adverse Effect, and has all
requisite power and authority to own its properties and assets, to transact the
business in which it is currently engaged, and to execute and deliver, and to
perform its obligations under, this Agreement and the Related Documents to which
it is a party. All of the issued and outstanding capital stock of the Borrower
is owned beneficially and of record by the Guarantor. The Borrower has no
Subsidiaries.
4.2 Authorization. The Borrower has taken all corporate action
-------------
(including obtaining the consent and approval of the shareholder of the
Borrower, if required) necessary to authorize the execution and delivery of this
Agreement, the Related Documents to Which it is a party and the Purchase
Agreements and to perform the obligations contemplated hereby and thereby.
4.3 No Conflicts or Consents. Except with respect to the STC
------------------------
Financing Consents, which STO Financing Consents have been obtained and are in
full force and effect. neither the execution and delivery of this Agreement, the
Related Documents to which it is a party or the Purchase Agreements, nor the
consummation of the transactions contemplated hereby or thereby, nor the
compliance with the terms and provisions hereof or thereof, will contravene or
conflict with any provision of any constitution, law or regulation to which the
Borrower is subject, or any judgment, license, order or permit applicable to the
Borrower, or any indenture, loan agreement, mortgage, deed of trust, or other
agreement or instrument to which the Borrower is a party or by which it or its
assets may be bound or subject, or violate any provision of its organizational
documents or by-laws. No consent, approval, authorization or order of any court
or Governmental Authority or third party is required in connection with the
execution and delivery by the Borrower of this Agreement or any of the Related
Documents to which it is a party or for the consummation of the transactions
contemplated hereby or thereby, except with respect to the STC Financing
Consents, which STC Financing Consents have been obtained and are in full force
and effect.
4.4 Enforceable Obligations. This Agreement and the Related Documents
-----------------------
to which the Borrower is a party have been duly executed and delivered by the
Borrower and are the legal, valid and binding obligations of the Borrower,
enforceable against it in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
general principles of equity.
4.5 Title to Assets. The Borrower has good title to all of its assets
---------------
free and clear of all Liens and other encumbrances and adverse claims of any
nature, except Permitted Liens. The Borrower has sufficient assets to operate
its business as currently conducted.
4.6 Financial Condition. Except with respect to the organization and
-------------------
incorporation of the Borrower and the transactions contemplated under the
Purchase Agreements, the Borrower has not created, incurred or assumed, directly
or indirectly. any Indebtedness or engaged in any business activities of any
type whatsoever or entered into any agreements or arrangements with any Person.
4.7 No Default. No Default has occurred and is continuing, nor will
----------
the execution, delivery and performance of this Agreement or any of the Related
Documents cause a Default to occur.
9
4.8 No Litigation. There are no actions, suits or legal, equitable,
-------------
arbitration, regulatory or administrative proceedings pending or, to the best of
the Borrower's knowledge after due inquiry, threatened against the Borrower or
any of its properties or assets, which if adversely determined, could reasonably
be expected to have a Material Adverse Effect.
4.9 Security Interests. The Pledge Agreement creates, as security
------------------
for the Loans and the other obligations purported to be secured thereby, a valid
and exclusive, perfected security interest in and Lien on all of the Collateral
described in such agreements in favor of the Lender superior and prior to the
rights of all third Persons, subject to no other Liens. The Guarantor has good
and marketable title to all of its Collateral free and clear of all Liens
(except as created pursuant to the Pledge Agreement). No filings or recordings
are required in order to perfect the security interests created under the Pledge
Agreement.
4.10 Taxes. All tax returns required to be filed by the Borrower in
-----
any jurisdiction have been filed or extensions obtained and all taxes as
reflected in such returns, assessments, fees and other governmental charges upon
the Borrower or upon any of their respective properties, income or franchises
have been paid prior to the time that such taxes would give rise to a Lien
thereon, other than a Permitted Lien under subsection 6.2 hereof. There is no
proposed special tax assessment against the Borrower and, to the knowledge of
the Borrower, there is no basis for any such assessment.
4.11 Principal Office Etc. The principal office, chief executive
--------------------
office and principal place of business of (a) the Borrower, is located at
__________________________________________ and (b) the Guarantor, is located at
____________________. The Borrower maintains its principal records and books at
such address.
4.12 ERISA. Except for the Plans described in the HAT
-----
Exchange Agreement, or otherwise required to be provided or established by
Borrower under the STC Purchase Agreement. the Borrower has not established and
does not maintain or contribute to any Plan that is covered by Title IV of the
Employee Retirement Income Security Act of 1974, as amended.
4.13 Compliance with Law. The Borrower is in compliance with all
-------------------
applicable provisions of all constitutions, laws, rules, regulations, orders,
judgments, decrees, licenses and approvals of any Governmental Authority, the
violation of which would have a Material Adverse Effect.
4.14 Insurance. The Borrower currently has and maintains insurance
---------
coverage of the types and in the amounts required under subsection 8.9.
4.15 Purchase Agreements. The Lender has received a complete and
-------------------
correct copy of the executed STC Purchase Agreement and all amendments thereto,
waivers relating thereto and other side letters or agreements affecting the
terms thereof, The STC Purchase Agreement has been duly executed and delivered
by the Guarantor and, to the best of Borrower's knowledge, is in full force and
effect in accordance with the terms thereof. All of the Guarantor's rights under
the STC Purchase Agreement have been assigned to the Borrower. The Borrower
hereby acknowledges and agrees that the Lender may rely on the representations
and warranties of the Borrower and the other parties thereto contained in the
STC Purchase Agreement.
10
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Loan. The obligation of the Lender to make
--------------------------
the initial Loan under Section 2.1(a), hereof is subject to the satisfaction,
immediately prior to or concurrently with the making of such Loan, of the
following conditions precedent:
(a) This Agreement and Related Documents: HAT Purchase Agreement. The
-------------------------------------------------- ---------
Lender shall have received a counterpart of this Agreement, each of the Related
Documents and the HAT Purchase Agreement, duly executed by each of the parties
thereto.
(b) STC Acquisition. The Lender shall have received copies, certified
---------------
as true, correct and complete by the Secretary or an Assistant Secretary of the
Borrower, of the executed STC Purchase Agreement and all other closing
agreements and documents relating thereto or delivered in connection therewith,
and, concurrently with or immediately prior to the funding of the initial Loan
hereunder, all conditions set forth in the STC Purchase Agreement shall have
been satisfied (without any amendment or waiver not expressly approved by the
Lender in writing) and the Borrower shall have consummated the STC Acquisition
or the Non-License Transfer (as defined in the STC Purchase Agreement):
(c) Legal Proceedings. No injunction. restraining order or decree of
-----------------
any nature of any court or governmental authority of competent jurisdiction
shall be in effect that restrains or prohibits the transactions contemplated by
this Agreement or the Related Documents.
(d) Approvals. The STC Financing Consents necessary in connection
---------
with this Agreement and the Related Documents shall have been obtained and shall
remain in effect. The Lender shall have received copies, certified as true,
correct and complete by the Secretary or an Assistant Secretary of the Borrower
of all such STC Financing Consents.
(e) Collateral. The Lender shall have received from the Guarantor (i)
----------
all certificates or other instruments representing all Pledged Securities (as
such term is defined in the Pledge Agreement), together with executed and
undated stock powers or assignments in blank.
(f) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Borrower and the Guarantor pursuant to this Agreement and
the Related Documents, and each of the representations and warranties contained
in any certificate, document or financial or other statement furnished in
connection with this Agreement and the Related Documents, shall be true and
complete in all material respects on and as of the Closing Date as if made on
and as of the Closing Date, except to the extent that such representations and
warranties expressly relate to a particular date, in which case such
representations and warranties shall be true and complete as of such date.
(g) No Default. No Default shall have occurred and be continuing on
----------
such date or would occur as a result of the Loan.
(h) Corporate Proceedings. The Lender shall have received a copy of
---------------------
resolutions, in form and substance reasonably satisfactory to it, of the Board
of Directors (or duly empowered committee thereof) of the Borrower and the
Guarantor authorizing the execution and delivery of this Agreement and the
Related Documents to which it is a party and the
11
consummation of the transactions here under and thereunder certified by its
Secretary or an Assistant Secretary, which certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate.
(i) Good Standing Certificates. The Lender shall have received a
--------------------------
certificate from the Secretary of State of the State of Delaware evidencing the
good standing of each of the Borrower and the Guarantor.
(j) Corporate Documents. The Lender shall have received a copy of the
-------------------
charter and by-laws of each of the Borrower and the Guarantor, together, in each
case, with all amendments thereto, certified to be true, correct and complete by
the Secretary or an Assistant Secretary of the Borrower and the Guarantor, as
the case may be.
(k) Incumbency Certificate. the Lender shall have received a
----------------------
certificate of the Secretary or an Assistant Secretary of each of the Borrower
and the Guarantor as to the incumbency and signature of their respective
officers authorized to sign this Agreement and the Related Documents to which it
is a party.
(l) Officer's Certificates. The Lender shall have received a
----------------------
certificate from an appropriate officer of each of the Borrower and the
Guarantor certifying that (i) the representations and warranties contained in
this Agreement and the Related Documents to which it is a party are accurate and
complete in all material respects and (ii) no Default has occurred and is
continuing or will occur as a result of the initial Loan.
(m) Insurance. The Lender shall have received evidence that the
---------
Borrower has in effect the insurance coverages required under subsection 6.9
hereof.
5.2 Conditions to Additional Loans. The obligation of the Lender to
------------------------------
make an additional Loan under subsection 2.1(b) hereof is subject to the
satisfaction, immediately prior to or concurrently with the making of such
additional Loan, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Borrower pursuant to this Agreement, and each of the
representations and warranties contained in any certificate, document or
financial or other statement furnished in connection with this Agreement, shall
be true and complete in all material respects on and as of the date of such
additional Loan as if made on and as of such date, except to the extent such
representations and warranties expressly relate to a particular date in which
case such representations and warranties shall be true and correct as of such
date.
(b) No Default. No Default shall have occurred and be continuing on
----------
such date or would occur as a result of such Loan.
(c) Notice of Borrowing. The Lender shall have received the notice
-------------------
required pursuant to subsection 2.1(d).
(d) Officer's Certificate. The Lender shall have received a
---------------------
certificate from an appropriate officer of the Borrower certifying that (i) the
representations and warranties contained in Section 4 hereof are accurate and
complete in all material respects and (ii) no Default has occurred and is
continuing or will occur as a result of such additional Loan.
12
(e) Legal Proceedings. No injunction, restraining order or decree of
-----------------
any nature of any court or governmental authority of competent jurisdiction
shall be in effect that restrains or prohibits the transactions contemplated by
this Agreement or the Related Documents.
(f) Supporting Documents. The Lender shall have received copies,
--------------------
certified as true, correct and complete by the Secretary or Assistant Secretary
of the Borrower, of all closing agreements and documents relating to the Closing
(as defined in the STC Purchase Agreement) in connection with the STC
Acquisition and concurrently with or immediately prior to the funding of the
additional Loan, all conditions to the Closing (as defined in the STC Purchase
Agreement) shall have been satisfied (without any amendment or waiver not
expressly approved by the Lender in writing) and the Borrower shall have
consummated the Closing (as defined in the SIC Purchase Agreement).
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Note or the Loan
remains outstanding and unpaid or any other amount is owing to the Lender, the
Borrower shall and (except in the case of delivery of financial information,
reports, notices and certificates) shall cause each of its Subsidiaries to:
6.1 Financial Statements, Reports and Documents. The Borrower shall
-------------------------------------------
deliver to the Lender the financial statements and other financial reporting
materials required to be delivered pursuant to Section 6.2.9 of the HAT Exchange
Agreement.
6.2 Payment of Taxes and Other indebtedness. The Borrower shall pay
---------------------------------------
and discharge: (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any property belonging to
them, (ii) all lawful claims upon it or its properties and assets (including
claims for labor, materials and supplies) and (iii) all of its other
Indebtedness in accordance with, and in the manner provided for under Section
6.2 of the HAT Exchange Agreement.
6.3 Maintenance of Existence and Rights; Conduct of Business. The
--------------------------------------------------------
Borrower shall preserve and maintain its existence and all of its rights,
privileges and franchises in accordance with, and in the manner provided for
under Section 6.2.1 of the HAT Exchange Agreement, and conduct its businesses in
an orderly and efficient manner consistent with good business practices and in
accordance with all valid regulations and orders of any Governmental Authority
in accordance with and in the manner provided for under Section 6.2.2 of the HAT
Exchange Agreement.
6.4 Notice of Default. Promptly upon becoming aware of the existence
-----------------
of any condition or event which constitutes a Default, the Borrower shall
furnish to the Lender written notice specifying the nature and period of
existence thereof and the action which the Borrower is taking or proposes to
take with respect thereto.
6.5 Other Notices. The Borrower shall promptly notify the Lender of
-------------
(i) the occurrence of any event or existence of any condition which would have a
Material Adverse Effect: and (ii) the commencement of, or any material
determination in, any litigation with any third party or any proceeding before
any Governmental Authority affecting the Borrower or its assets or properties
which could reasonably be expected to have a Material Adverse Effect. The
13
Borrower will promptly deliver to Lender a copy of each notice or written
communication received by the Borrower (a) from the Sellers (as defined in the
STC Purchase Agreement) under or in connection with the STC Purchase Agreement
or (b) from the Federal Communications Commission in connection with the
Stations (as defined in the STC Purchase Agreement). Within thirty (30) days
after the end of each fiscal quarter, and no later than the date of delivery of
the information required to be delivered pursuant to subsection 6.1(d) hereof,
the Borrower shall deliver to the Lender notice of (i) the cancellation or
termination of, or any default under, any agreement, contract or other
instrument to which it is a party or by which any of its properties are bound
which could reasonably be expected to have a Material Adverse Effect, and (ii)
any material adverse claim against or affecting the Borrower or any of its
assets or properties.
6.6 Use of Proceeds. The Borrower will use the proceeds of each
---------------
Loan made by the Lender (a) under Section 2.1(a) and 2.1(c) hereof solely for
the payment of the Purchase Price (as defined in the STC Purchase Agreement) in
connection with the STC Acquisition and (b) under Section 2.1(b) hereof solely
for the payment to the Sellers (as defined in the STC Purchase Agreement) of the
Final Probation Amount (as defined in the STC Purchase Agreement).
6.7 Books and Records; Access. The Borrower shall give any
-------------------------
representative of the Lender access during all business hours and upon
reasonable prior notice, and permit such representative to examine, copy or make
excerpts from, any and all books, records and documents in the possession of the
Borrower relating to the affairs of the Borrower or its assets or properties in
accordance with, and in the manner provided for under, Section 6.2.7 of the HAT
Exchange Agreement. Lender agrees to take such steps as are reasonably
practicable to minimize disruption of the Borrower's operations in connection
with such examination. The Borrower shall maintain complete and accurate books
and records of its transactions in accordance with good accounting practices.
6.8 Compliance with Law. The Borrower shall comply with all
-------------------
applicable constitutions, laws, rules, regulations, judgments, orders,
decisions, rulings and decrees of any Governmental Authority applicable to it or
to any of its assets, properties, business operations or transactions in
accordance with and in the manner provided for under, the HAT Exchange
Agreement.
6.9 Insurance. The Borrower shall maintain workers' compensation
---------
insurance, liability insurance, casualty insurance and other insurance on its
properties, assets and businesses, now owned or hereafter acquired, against such
casualties, risks and contingencies, and in such types and amounts, as are
maintained by Borrower and in effect on the date of this Agreement; provided,
--------
that on the Closing Date, the Lender shall have received evidence that it has
been named as a loss payee (as its interest may appear) on the property damage
coverage maintained by the Borrower in respect of its assets and properties, and
as an additional insured in respect of the liability coverage, maintained in
respect of such assets and properties.
6.10 Further Assurances. The Borrower shall make, execute or endorse,
------------------
and acknowledge and deliver or file or cause the same to be done, all such
notices, certificates and additional agreements, undertakings, conveyances,
transfers, assignments or other assurances, and take any and all such other
action, as the Lender may, from time to time, deem reasonably necessary or
proper in connection with this Agreement or any of the Related Documents, or the
obligations of the Borrower hereunder or thereunder.
14
6.11 Lien on Assets. Upon the written request of Lender at any time
--------------
from and after the date which occurs one hundred twenty (120) days after the
date of this Agreement, the Borrower will promptly, and in any event within
thirty (30) days after the date of such written request, execute and deliver to
Lender such security agreements, and take such further action necessary to grant
in favor of Lender a first priority perfected security interest in and lien upon
all of Borrower's assets, tangible and intangible, whether personal property or
real property. Borrower agrees to take all action necessary or reasonably
requested by Lender to perfect such liens and ensure that such liens have
priority over all Liens other than Permitted Liens.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Note or the Loan
remains outstanding and unpaid or any other amount is owing to the Lender
hereunder.
7.1 Change in Nature of Business. The Borrower will not (a) enter
----------------------------
into any business other than the business of acquiring the Assets (as defined in
the STC Purchase Agreement) pursuant to the STC Purchase Agreement and operating
the same pursuant to the TBA Agreement (as defined in the STC Purchase
Agreement) and the HAT Exchange Agreement or (b) become a party to any agreement
without the prior written consent of the Lender other than the Purchase
Agreements, this Agreement, the Related Documents to which it is a party, the
Station Contracts (as defined in the HAT Purchase Agreement) and other
agreements contemplated in or incidental to the performance of its obligations
under, the Purchase Agreements, this Agreement and the Related Documents.
7.2 Limitation on indebtedness. The Borrower shall not incur,
--------------------------
create, contract, assume, have outstanding, guarantee or otherwise be or
become, directly or indirectly, liable in respect of any Indebtedness, except
Permitted indebtedness.
7.3 Negative Pledge. The Borrower shall not create, incur or permit
---------------
or suffer to exist any Lien upon any of its properties or assets, now owned or
hereafter acquired, except for Permitted Liens.
7.4 No Restrictions. The Borrower shall not permit or suffer to
---------------
exist any restrictions on the sale or transfer of any assets acquired with the
proceeds of any Loan or pledged to the Lender in accordance with the terms of
the Pledge Agreement, except as provided herein and in the Related Documents and
restrictions imposed by applicable law.
7.5 Limitation on Investments. The Borrower shall not, without the
-------------------------
prior written consent of the Lender, make any investments, except Permitted
Investments.
7.6 Limitation on Dividends. The Borrower shall not pay any
-----------------------
Dividends, except for the distribution of any proceeds from the WFFF
Disposition.
7.7 Amendments: Material Agreements. The Borrower shall not amend
-------------------------------
its organizational documents or by-laws. The Borrower shall not consent to or
permit any alteration, amendment, modification, release, waiver or termination
of any provision of any agreement or contract to which it is a party except in
accordance with, and in the manner provided for under, the HAT Exchange
Agreement.
15
7.8 Affiliated Transactions. The Borrower shall not enter into any
-----------------------
transaction or arrangement with an Affiliate except in accordance with, and in
the manner provided for under, Section 6.1.12 of the HAT Exchange Agreement and
except with respect to the WFFF Disposition.
7.9 Issuance of Shares. The Borrower shall not issue, sell or
------------------
otherwise dispose of capital stock or other securities, or rights, warrants or
options to purchase or acquire any such stock or other securities.
7.10 Name, Fiscal Year and Accounting Method. The Borrower shall not
---------------------------------------
change its name. fiscal year or method of accounting.
7.11 Liquidation, Mergers, Consolidations and Dispositions of
--------------------------------------------------------
Substantial Assets. The Borrower shall not dissolve or liquidate, or become a
------------------
party to any merger or consolidation, or sell, transfer. lease or otherwise
dispose of all or any part of its property, assets or business, except in
accordance with, and in the manner provided for under, Section 6.1.1 or Section
6.12.4 of the HAT Exchange Agreement.
7.12 Restricted Payments. So long as the Obligations are outstanding,
-------------------
the Borrower shall not redeem, repurchase or otherwise acquire any capital stock
issued by it or any other Person or prepay any Permitted Indebtedness or any
other Indebtedness of the Borrower.
7.13 Pension Plans. Except with respect to the Plans described in the
-------------
STC Exchange Agreement or otherwise required to be provided or established by
Borrower under the STC Purchase Agreement, the Borrower will not establish or
become party to any employee benefit plan of the type referred to in Section
4.12 hereof.
7.14 Location of Company. The Borrower will not maintain its
-------------------
principal place of business and chief executive office at any place other than
the place specified in Section 4.11 hereof unless the Borrower shall have given
the Lender not less than 10 days's prior written notice of such change of
location.
SECTION 8. EVENTS OF DEFAULT
8.1 Events of Default. Each of the following events shall constitute
-----------------
an Event of Default
(a) The Borrower shall fail to pay (i) any installment of principal
of or interest on the Loans when due in accordance with the terms hereof, or
(ii) any other amount payable hereunder or under any Related Document when due
in accordance with the terms hereof or thereof, and in the case of clause (ii)
set forth above, such failure shall continue unremedied for a period of five
days after the date when due; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or by the Borrower or the Guarantor in any Related Document to
which it is a party, or in any certificate, document or financial or other
statement furnished at any time under or in connection with this Agreement or
any Related Documents, shall prove to have been incorrect or incomplete in any
material respect on or as of the date made or deemed made or shall be breached;
or
16
(c) The Borrower shall default in the observance or performance of any
covenant or agreement set forth herein or in any Related Document arid such
default shall continue for a period of 30 days after receipt of notice thereof
from the Lender, or
(d) The Guarantor shall default in the observance or performance of
any covenants or agreements contained in the Guaranty or the Pledge Agreement;
or
(e) The Borrower or the Guarantor shall (i) default in any payment of
principal of or premium or interest on any Indebtedness (other than Indebtedness
owing under this Agreement or the Note) or (ii) any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, with the giving of notice
if required, such Indebtedness to become due prior to its stated maturity: or
(f) The Borrower or the Guarantor shall (i) apply for or consent to
the appointment of a receiver, trustee, custodian, intervenor or liquidator of
itself or of all or a substantial part of such Person's assets, (ii) file a
voluntary petition in bankruptcy, admit in writing that such Person is unable to
pay such Person's debts as they become due, or generally not pay such Person's
debts as they become due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or answer seeking reorganization or an
arrangement with creditors or to take advantage of any bankruptcy or insolvency
laws, (v) file an answer admitting the material allegations of, or consent to,
or default in answering, a petition filed against such Person in any bankruptcy,
reorganization or insolvency proceeding, or (vi) take corporate action for the
purpose of effecting any of the foregoing: or
(g) An involuntary petition or complaint shall be filed against the
Borrower or the Guarantor seeking bankruptcy relief or reorganization or the
appointment of a receiver, custodian, trustee, intervenor or liquidator of such
Person, or all or substantially all of such Person's assets and such petition or
complaint remains undismissed, undischarged or unbonded for a period of 60 days
or more, or an order, order for relief, judgment or decree is entered by any
court of competent jurisdiction or other competent authority approving or
ordering any of the foregoing: or
(h) Any of the Related Documents or the Purchase Agreements shall
cease for any reason to be in full force and effect in accordance with its terms
or any Person obligated thereunder shall so assert in writing or the Pledge
Agreement shall cease to be effective to grant the Liens purported to be granted
thereby in accordance with its terms or such Liens shall cease to be enforceable
or superior to and prior to the rights of any other Person; or
(i) The Guarantor shall cease to own, directly or indirectly, 100% of
the issued and outstanding capital stock of the Borrower, or
(j) Either Purchase Agreement shall terminate or cease for any reason
to be in full force and effect either automatically or by any action of any
party thereto; or
(k) The TBA Agreement (as defined in the STC Purchase Agreement) shall
cease for any reason to be in full force and effect in accordance with its terms
or any party thereto shall so assert in writing.
17
8.2 Remedies. If any Event of Default shall occur and be continuing,
--------
then, and in any such event, (a) if such event is an Event of Default specified
in subsection 8.1(f) or (g), automatically the obligation of the Lender to make
any further Loans hereunder shall terminate and the Loans (with accrued interest
thereon) and all other Obligations shall immediately become due and payable, and
(b) if such event is any other Event of Default, the Lender may, by notice of
default to the Borrower, terminate its obligation to make any further Loans
hereunder, whereupon such commitment of the Lender shall immediately terminate,
and/or declare the Loans (with accrued interest thereon) and all other
Obligations to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as expressly provided above in this
subsection 8.2, presentment, demand, protest and all other notices of any kind
are hereby expressly waived. Upon the occurrence of an Event of Default and the
acceleration of the Obligations, the Lender may enforce its rights hereunder,
under the Related Documents and under any other instrument or agreement
delivered in connection herewith and therewith and take any other action to
which it is entitled hereunder or thereunder or by law, whether for the specific
performance of any covenant or agreement set forth herein or therein or to
enforce payment as provided herein, therein or by law.
8.3 Default Interest. Notwithstanding any other provision of this
----------------
Agreement to the contrary, if the Borrower shall fail to pay any amount owing to
the Lender under this Agreement when due (whether at stated due date, on
acceleration or otherwise), then the Borrower will pay interest to the Lender,
payable on demand, on the amount in default from the date such payment became
due until payment in full at a rate per annum equal to the rate of interest
payable on the Loans immediately prior to the date of such default plus 3% per
annum.
SECTION 9. MISCELLANEOUS
9.1 Amendments. This Agreement may be amended, or any provision
----------
waived, only by an instrument in writing executed by each of the Borrower and
the Lender. Any waiver given shall be effective only in the specific instance
and for the specific purpose for which it is given.
9.2 Notices. Except as expressly otherwise provided herein, all
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notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy or telex), and shall be
deemed to have been duly given or made when delivered by hand, or one Business
Day after being sent by overnight mail, or five Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
acknowledged as received (if received during normal business hours on a Business
Day, otherwise on the next succeeding Business Day or, in the case of telex
notice, when sent, answerback received, addressed as follows, or to such other
address as may be hereafter notified by the respective parties hereto and any
future holders of the Note:
The Lender: Hearst-Argyle Stations, Inc.
c/o Hearst-Argyle Television, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of each such notice to:
18
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Borrower STC Broadcasting. Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of each such notice to:
(i) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Lender shall not be
--------
effective until actually received. Any notice, request or demand received on a
day which is not a Business Day shall be deemed to have been received on the
next following Business Day.
9.3 No Waiver, Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Lender, of any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder or under any
Related Document preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided or provided in the Related Documents are cumulative
and not exclusive of any rights, remedies, powers and privileges provided at
law, in equity or otherwise.
9.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Related Documents.
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9.5 Payment of Lender's Expenses, Indemnity, etc. The Borrower shall:
--------------------------------------------
(a) pay all costs and expenses of the Lender in connection with any
enforcement of, this Agreement and the Related Documents and the documents and
instruments referred to therein or in connection with any restructuring or
rescheduling of the Obligations (including, without limitation, the reasonable
fees and disbursements of counsel for the Lender); and
(b) indemnify the Lender, its officers, directors, employees,
representatives and agents and any persons or entities owned or controlled by.
owning or controlling, or under common control or Affiliated with Lender (each
an "Indemnitee") from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitee in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto) that may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed on,
asserted against or incurred by any Indemnitee as a result of, or arising out
of, or in any way related to or by reason of, (i) the occurrence of an Event of
Default hereunder and (ii) the exercise by the Lender of its rights and remedies
(including, without limitation, foreclosure) under this Agreement or any Related
Document (but excluding, as to any indemnitee, any such losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements incurred by reason of the gross negligence or willful
misconduct of such Indemnitee). The Borrower's obligations under this subsection
9.5 shall survive the termination of this Agreement and the payment of the
Obligations.
9.6 Benefit of Agreement; Assignments and Participations. (a) This
----------------------------------------------------
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lender, all future permitted holders of the Note and their respective permitted
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Lender.
(b) The Lender may not assign, or enter into any participations, in
respect of, all or any part of the Loan without the prior written consent of the
Borrower (which consent shall not be unreasonably withheld, conditioned or
delayed). The Lender may assign all or any part of the Loan without the
Borrower's consent (i) at any time to one or more Affiliates of the Lender or
(ii) from and after the occurrence and during the continuance of an Event of
Default, to one or more affiliated or unaffiliated parties; and provided further
-------- -------
that no such participation shall affect the rights and duties of the Lender vis-
a-vis the Borrower. The Borrower shall not be obligated to furnish any
information to any such participant, purchaser or assignee, but the Lender may
provide any such Person with any information furnished by the Borrower to the
Lender in compliance with subsection 9.11.
9.7 Headings. The Section and subsection headings in this Agreement
--------
are for convenience of reference only and shall not affect the interpretation
hereof.
9.8 GOVERNING LAW. THIS AGREEMENT AND THE RELATED DOCUMENTS AND THE
-------------
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE RELATED
DOCUMENTS SHALL BE GOVERNED BY, AND
20
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9.9 Submission to Jurisdiction. The Borrower hereby irrevocably and
--------------------------
unconditionally: (i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any Related Document, or for
recognition and enforcement of any judgment in respect thereof, to the non-
exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof; (ii) consents that any such action or
proceeding may be brought in such courts, and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same; (iii) agrees that if any process or
summons may be served by mailing a copy thereof by registered mail, or a form of
mail substantially equivalent thereto, addressed to it at its address set forth
in or designated pursuant to subsection 9.2, such service to become effective 10
days after such mailing; and (iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction.
9.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT
--------------------
IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY
ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT.
9.11 Confidentiality. The Lender agrees to hold any non-public
---------------
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure to (i) employees, directors, agents, legal
counsel, accountants, and other professional advisors who are advised of the
confidential nature of such information, on a need-to-know basis, (ii) as
required by law or legal process or in connection with any legal proceeding, and
(iii) permitted assignees, purchasers or participants in connection with a
disposition or proposed disposition of the Lender's interests hereunder or under
the Related Documents, upon execution by such institution of an agreement to
keep such information confidential to the extent described in this subsection
9.11. Notwithstanding (ii) and (iii) above, in the event that the Lender is
requested pursuant to, or required by, applicable law, regulation, legal
process, or regulatory authority to disclose any such information, the Lender
will provide the Borrower with prompt notice of such request or requirement in
order to enable the Borrower to seek an appropriate protective order or other
remedy, or to consult with the Lender with respect to the Borrower's taking
steps to resist or narrow the scope of such request or legal process. If, in
such event, the Borrower has not provided the Lender with a protective order or
other remedy in sufficient time, with the Lender acting in good faith and
otherwise in its sole discretion, for the Lender to avoid unlawful nondisclosure
of such information, the Lender may disclose such information pursuant to such
law, regulation, or in such legal process, or to such regulatory authority, as
the case may be, without any recourse or remedy against the Lender by the
Borrower or any Affiliate of the Borrower, which the Borrower hereby expressly
waives.
9.12 FCC Compliance. Notwithstanding anything to the contrary
--------------
contained herein or in any other agreement, instrument or document executed in
connection herewith, no party hereto shall take any actions hereunder that would
constitute or result in a transfer or assignment of any license, permit or
authorization issued by the Federal Communications Commission (the "FCC") or a
change of control over any such license, permit or authorization requiring the
prior approval of the FCC without first obtaining such prior approval of the
FCC.
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[signatures begin on next page]
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
STC BROADCASTING OF VERMONT SUBSIDIARY, INC.
By:
---------------------------
Name:
Title:
HEARST-ARGYLE STATIONS, INC.
By:
---------------------------
Name:
Title: