1
EXHIBIT 10.5
AMENDED AND RESTATED
TRANSACTION AGREEMENT
dated as of
JANUARY 22, 1998
between
NATIONAL BROADCASTING COMPANY, INC.,
OUTLET BROADCASTING, INC.,
LIN TELEVISION OF TEXAS, L.P.,
LIN TELEVISION CORPORATION,
STATION VENTURE HOLDINGS, LLC,
STATION VENTURE OPERATIONS, LP
and
RANGER HOLDINGS CORP.
2
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions......................................................................1
ARTICLE 2
CONTEMPLATED TRANSACTIONS
SECTION 2.01. Contemplated Transactions.......................................................12
ARTICLE 3
TRANSFERS OF ASSETS AND LIABILITIES
SECTION 3.01. Asset Contribution..............................................................14
SECTION 3.02. Excluded Assets.................................................................16
SECTION 3.03. Assumed Liabilities.............................................................16
SECTION 3.04. Excluded Liabilities............................................................18
SECTION 3.05. Assignment of Contracts and Rights..............................................19
SECTION 3.06. Closing.........................................................................20
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF RANGER
SECTION 4.01. Corporate Existence and Power...................................................21
SECTION 4.02. Corporate Authorization.........................................................21
SECTION 4.03. Governmental Authorization......................................................21
SECTION 4.04. Noncontravention................................................................21
SECTION 4.05. Litigation......................................................................22
SECTION 4.06. Sufficiency of and Title to the KXAS Assets.....................................22
SECTION 4.07. Finders' Fees...................................................................22
SECTION 4.08. Amendments to, and Notices under, the Merger
Agreements.................................................................22
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF NBC
SECTION 5.01. Corporate Existence and Power...................................................23
SECTION 5.02. Corporate Authorization.........................................................23
SECTION 5.03. Governmental Authorization......................................................24
SECTION 5.04. Noncontravention................................................................24
3
SECTION 5.05. Litigation......................................................................24
SECTION 5.06. Sufficiency of and Title to the KNSD Assets.....................................24
SECTION 5.07. Finders' Fees...................................................................25
SECTION 5.08. Required and Other Consents.....................................................25
SECTION 5.09. Absence of Certain Changes......................................................25
SECTION 5.10. No Undisclosed Material Liabilities.............................................26
SECTION 5.11. Material Contracts..............................................................26
SECTION 5.12. Compliance with Laws and Court Orders...........................................27
SECTION 5.13. Tangible Property...............................................................28
SECTION 5.14. Intellectual Property...........................................................28
SECTION 5.15. Licenses and Permits............................................................28
SECTION 5.16. Environmental Matters...........................................................29
SECTION 5.17. KNSD Financial Statements.......................................................31
SECTION 5.18. Employee Arrangements and Benefit Plans.........................................31
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF LIN-TEXAS
SECTION 6.01. Partnership Existence and Power.................................................31
SECTION 6.02. Partnership Authorization.......................................................32
SECTION 6.03. Governmental Authorization......................................................32
SECTION 6.04. Noncontravention................................................................32
SECTION 6.05. Litigation......................................................................32
SECTION 6.06. Finders' Fees...................................................................32
ARTICLE 7
COVENANT OF RANGER
SECTION 7.01. Merger Agreement Amendments and Waivers.........................................33
ARTICLE 8
COVENANT OF NBC
SECTION 8.01. Conduct of the KNSD Business....................................................33
ARTICLE 9
OTHER COVENANTS
SECTION 9.01. Access to Information...........................................................34
SECTION 9.02. Notices of Certain Events.......................................................35
SECTION 9.03. Reasonable Best Efforts; Further Assurances.....................................36
SECTION 9.04. Certain Filings.................................................................36
SECTION 9.05. Public Announcements............................................................37
SECTION 9.06. WARN Act........................................................................37
4
SECTION 9.07. Certain Capital Expenditures in Respect of the KXAS
Business...................................................................37
ARTICLE 10
TAX MATTERS
SECTION 10.01. Tax Representations............................................................37
SECTION 10.02. Excluded or Assumed Liabilities................................................38
SECTION 10.03. Tax Allocations................................................................38
SECTION 10.04. Tax Cooperation and Consistent Reporting.......................................38
SECTION 10.05. Preparation of Tax Returns.....................................................39
ARTICLE 11
EMPLOYEE BENEFITS
SECTION 11.01. Employees......................................................................39
SECTION 11.02. Continuation of Benefits.......................................................40
SECTION 11.03. Severance Arrangements and Employment Agreements...............................40
SECTION 11.04. Bonus Arrangements.............................................................40
SECTION 11.05. Welfare Plans..................................................................40
SECTION 11.06. Employee Liabilities...........................................................41
SECTION 11.07. Defined Contribution Plan......................................................43
SECTION 11.08. Defined Benefit Plans..........................................................43
SECTION 11.09. Multiemployer Pension Plans....................................................44
SECTION 11.10. Past Service Credit. .........................................................45
ARTICLE 12
CONDITIONS TO CLOSINGS
SECTION 12.01. Conditions to Closing the Funding Date Transactions............................45
SECTION 12.02. Conditions to Closing the Closing Date Transactions............................50
ARTICLE 13
SURVIVAL; INDEMNIFICATION
SECTION 13.01. Survival.......................................................................50
SECTION 13.02. Indemnification................................................................50
SECTION 13.03. Procedures.....................................................................51
ARTICLE 14
TERMINATION AND RESCISSION
SECTION 14.01. Grounds for Termination........................................................51
SECTION 14.02. Effect of Termination..........................................................52
5
SECTION 14.03. Rescission Rights..............................................................52
ARTICLE 15
MISCELLANEOUS
SECTION 15.01. Notices........................................................................55
SECTION 15.02. Amendments and Waivers.........................................................57
SECTION 15.03. Fees and Expenses..............................................................57
SECTION 15.04. Successors and Assigns.........................................................57
SECTION 15.05. Governing Law..................................................................58
SECTION 15.06. Jurisdiction...................................................................58
SECTION 15.07. WAIVER OF JURY TRIAL...........................................................58
SECTION 15.08. Specific Performance...........................................................58
SECTION 15.09. Counterparts; Third Party Beneficiaries........................................58
SECTION 15.10. Entire Agreement...............................................................59
SECTION 15.11. Bulk Sales Laws................................................................59
SECTION 15.12. Captions.......................................................................59
SECTION 15.13. Covenant of LIN-TV as to Its Subsidiaries......................................59
SECTION 15.14. Covenant of NBC as to Its Subsidiaries.........................................59
SECTION 15.15. Additional Interim Operating Restriction.......................................59
6
EXHIBITS
Exhibit A -- Assignment and Assumption Agreement
Exhibit B -- HM Affiliation Agreement Amendments
Exhibit C -- LLC Agreement
Exhibit D -- LP Agreement
Exhibit E -- Management Services Agreement
Exhibit F -- Tower Agreements
Exhibit G -- Transition Services Agreement
Exhibit H -- KXAS-TV Affiliation Agreement and Related Side Letter
Exhibit I -- KNSD(TV) Affiliation Agreement and Related Side Letter
Exhibit J -- WVTM TV Affiliation Agreement and Related Side Letter
Exhibit K -- Venture Credit Agreement
Exhibit L -- Venture Letter Agreement
Exhibit M -- WVTM Option Agreement
SCHEDULES
Schedule 3.01 -- Certain KXAS Assets
Schedule 3.02 -- Certain Excluded Assets in respect of the KXAS Business
Schedule 4.05 -- Ranger Litigation
Schedule 5.08 -- KNSD Required Consents
Schedule 5.15(b) -- KNSD FCC Authorizations
Schedule 5.16 -- KNSD Environmental Matters
Schedule 5.17 -- KNSD Financial Statements
Schedule 5.18 -- KNSD Employment Arrangements and Plans
Schedule 6.05 -- LIN Litigation
7
AMENDED AND RESTATED
TRANSACTION AGREEMENT
AMENDED AND RESTATED TRANSACTION AGREEMENT dated as of January 22, 1998
between NATIONAL BROADCASTING COMPANY, INC., a Delaware corporation (with its
successors, "NBC"), OUTLET BROADCASTING, INC., a Rhode Island corporation (with
its successors, "OUTLET"), RANGER HOLDINGS CORP., a Delaware corporation (with
its successors, "RANGER"), LIN TELEVISION OF TEXAS, L.P., a Delaware limited
partnership (with its successors, "LIN-TEXAS"), LIN TELEVISION CORPORATION, a
Delaware corporation (with its successors, "LIN-TV"), STATION VENTURE HOLDINGS,
LLC, a Delaware limited liability company (with its successors, the "LLC") and
STATION VENTURE OPERATIONS, LP, a Delaware limited partnership (with its
successors, the "LP").
W I T N E S S E T H :
WHEREAS, the parties hereto have entered into a Transaction Agreement
(the "ORIGINAL AGREEMENT") dated as of January 15, 1998; and
WHEREAS, the parties hereto have agreed to amend and restate the
Original Agreement on and as of the date hereof to provide that the Business
Transfers relating to the KNSD Business shall all take place on the Funding
Date, as set forth more fully below;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such other Person; provided that, for purposes of the definition of Affiliate as
used in this
8
Agreement, the LP, the LLC and the Lender shall not be treated as an Affiliate
of any party hereto.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means any Assignment and
Assumption Agreement entered into in respect of either any Business Transfer or
the transfer of assets contemplated under Section 2.01(a)(i), substantially in
the form of Exhibit A hereto.
"BUSINESS" means the KXAS Business and/or the KNSD Business, as the
context may require.
"BUSINESS TRANSFER" means (i) the transfer of the KXAS Business by
LIN-Texas to the LLC on the Funding Date pursuant to Section 2.01(a)(v) and
Article 3 hereof, (ii) the transfer of an undivided 99% interest in the KNSD
Business by Outlet to the LLC on the Funding Date pursuant to Section
2.01(a)(iv) and Article 3 hereof, (iii) the transfer of (A) an undivided 1%
interest in the KNSD Business by Outlet to the LP and (B) an undivided 99%
interest in the KNSD Business by the LLC to the LP, in each case on the Funding
Date pursuant to Section 2.01(a)(vii) and Article 3 hereof and (iv) the transfer
of the KXAS Business by the LLC to the LP on the Closing Date pursuant to
Section 2.01(b)(i) and Article 3 hereof.
"BUSINESS TRANSFEREE" means (i) the LLC in respect of the transfer to
it of the KXAS Business by LIN-Texas on the Funding Date pursuant to Section
2.01(a)(v) and Article 3 hereof, (ii) the LLC in respect of the transfer to it
of an undivided 99% interest in the KNSD Business by Outlet on the Funding Date
pursuant to Section 2.01(a)(iv) and Article 3 hereof, (iii) the LP in respect of
the transfer to it of (A) an undivided 1% interest in the KNSD Business by
Outlet on the Funding Date and (B) undivided 99% interest in the KNSD Business
by the LLC on the Funding Date, in each case pursuant to Section 2.01(a)(vii)
and Article 3 hereof and (iv) the LP in respect of the transfer to it of the
KXAS Business on the Closing Date pursuant to Section 2.01(b)(i) and Article 3
hereof.
"BUSINESS TRANSFEROR" means (i) LIN-Texas in respect of the transfer by
it of the KXAS Business to the LLC on the Funding Date pursuant to Section
2.01(a)(v) and Article 3 hereof, (ii) Outlet in respect of the transfer by it of
(A) an undivided 99% interest in the KNSD Business to the LLC on the Funding
Date pursuant to Section 2.01(a)(iv) and Article 3 hereof and (B) an undivided
1% interest in the KNSD Business to the LP on the Funding Date, in each case
pursuant to Section 2.01(a)(vii) and Article 3 hereof and (iii) the LLC in
respect of the transfer by it of (A) the undivided 99% interest in the KNSD
Business to the LP on the Funding Date pursuant to Section 2.01(a)(vii) and
Article 3 hereof and
2
9
(B) the KXAS Business to the LP on the Closing Date pursuant to Section
2.01(b)(i) and Article 3 hereof.
"CLOSING DATE" means the date of the Effective Time.
"CLOSING DATE TRANSACTIONS" means those Contemplated Transactions that
are to close on the Closing Date.
"CLOSING DATE TRANSACTION DOCUMENTS" means this Agreement and those
Transaction Documents that are to be dated as of the Closing Date.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMUNICATIONS ACT" means the Communications Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"CONFIDENTIALITY AGREEMENTS" means (i) the Confidentiality Agreement
dated as of June 13, 1997 between LIN-TV and Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇
Incorporated, (ii) the Confidentiality Agreement dated as of October 21, 1997
between NBC and LIN-TV, and (iii) the Confidentiality Agreement dated as of
October 24, 1997 between NBC and Ranger, in each case as the same may be amended
from time to time.
"CONTEMPLATED TRANSACTIONS" means the transactions contemplated by
the Transaction Documents.
"EFFECTIVE TIME" shall have the meaning set forth in the Merger
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"EXCLUDED NAME" means (i) in respect of the KXAS Business, any name or
logo that includes "LIN Television Corporation" or any derivatives thereof or
(ii) in respect of the KNSD Business, any name or logo that includes "National
Broadcasting Company, Inc." or "NBC" or any derivatives thereof.
"FCC" means the Federal Communications Commission.
"FCC APPLICATIONS" means each of (i) the FCC Form 315 that is on file
with respect to the Merger and the resulting transfer of control of LIN-TV to
Ranger, (ii) the FCC Form 316 that is on file with respect to the assignment of
the KXAS-TV license from North Texas Broadcasting Corp. to the LLC in which
3
10
North Texas Broadcasting Corp. would have a controlling interest, (iii) the FCC
Form 314 that is on file with respect to the assignment of the KXAS-TV license
from the LLC to the LP and (iv) the FCC Form 316 that is on file with respect to
the assignment of the KNSD(TV) license from Outlet to the LP.
"FCC AUTHORIZATIONS" means any licenses, permits and other
authorizations issued by the FCC with respect to the KXAS Business or the KNSD
Business, as the case may be.
"FUNDING DATE" means, if Ranger has delivered the Venture Notice (as
defined in the Merger Agreement), the Business Day immediately preceding the
Closing Date.
"FUNDING DATE TRANSACTIONS" means those Contemplated Transactions that
are to close on the Funding Date.
"FUNDING DATE TRANSACTION DOCUMENTS" means this Agreement and those
Transaction Documents that are to be dated as of the Funding Date.
"GOVERNMENTAL ENTITY" means any government or any state, department or
other political subdivision thereof, or any governmental body, agency, authority
(including, without limitation, any central bank or taxing authority) or
instrumentality (including, without limitation, any court or tribunal)
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GUARANTOR" means Ranger Equity Holdings B Corp., a Delaware
corporation, with its successors.
"GUARANTOR PLEDGE AGREEMENT" means the Guarantor Pledge Agreement dated
as of the Closing Date, substantially in the form of that set forth in the
exhibits to the Venture Credit Agreement.
"GUARANTY" means the Replacement Guaranty dated as of the Closing Date
by and between the Guarantor and the Lender, substantially in the form of that
set forth in the exhibits to the Venture Credit Agreement.
"HM AFFILIATION AGREEMENT AMENDMENTS" means the amendments dated as of
the Closing Date to the network affiliation agreements by and between NBC and
either LIN-TV or Sunrise Television Corp., as the case may be, in respect of
each HM NBC-Affiliated Station, substantially in the form of Exhibit B hereto.
4
11
"HM NBC-AFFILIATED STATIONS" means (i) KSBW(TV), serving Salinas, CA,
WEYI-TV, serving Saginaw, Michigan, WJAC-TV, serving Johnstown, Pennsylvania,
KACB-TV, serving San Angelo, Texas, KRCB-TV, serving Abilene, Texas, KXAN-TV,
serving Austin, Texas, WAVY-TV, serving Norfolk, Virginia and WOOD-TV, serving
Grand Rapids, Michigan, in each case if such television station is owned by
Ranger or any of its Affiliates as of the Effective Time, and (ii) any other
NBC-affiliated television station owned by Ranger or any of its Affiliates as of
the Effective Time.
"INTELLECTUAL PROPERTY RIGHT" means any trademark, service ▇▇▇▇, trade
name, mask work, invention, patent, trade secret, copyright, know-how (including
any registrations or applications for registration of any of the foregoing) or
any other similar type of proprietary intellectual property right.
"KNSD ASSETS" means the Contributed Assets in respect of the KNSD
Business.
"KNSD BUSINESS" means all of the business and operations currently and
hereafter conducted by the television station KNSD(TV), serving San Diego,
California, including the assets and operations thereof and certain liabilities
thereof, to be contributed or assumed pursuant to this Agreement.
"KNSD LIEN" means the first priority security interest to be granted to
the Lender on the Funding Date, pursuant to the Venture Security Agreement, in
the LLC's undivided 99% interest in the KNSD Assets to be contributed to the LLC
by Outlet on the Funding Date and thereafter by the LLC to the LP on the Funding
Date.
"KXAS ASSETS" means the Contributed Assets in respect of the KXAS
Business.
"KXAS BUSINESS" means all of the business and operations currently and
hereafter conducted by the television station KXAS-TV, serving Dallas, Texas,
including the assets and operations thereof and certain liabilities thereof, to
be contributed or assumed pursuant to this Agreement.
"KXAS LIEN" means the first priority security interest to be granted to
the Lender on the Funding Date, pursuant to the Venture Security Agreement, in
the KXAS Assets to be contributed to the LLC by LIN-Texas on the Funding Date
and thereafter by the LLC to the LP on the Closing Date.
"KXAS TOWER" means the real, personal and mixed property set forth in
Exhibits ▇-▇, ▇-▇ and A-3 to the Tower Agreement pursuant to which the LP is
5
12
the Grantor and LIN-Texas is the Grantee thereunder, together with all fixtures
and improvements thereon, but excluding the Grantee's easement and any equipment
or other property located on such tower and such real property by virtue of such
easement.
"KXTX TOWER" means the real, personal and mixed property set forth in
Exhibits ▇-▇, ▇-▇ and A-3 to the Tower Agreement pursuant to which LIN-Texas is
the Grantor and the LP is the Grantee thereunder, together with all fixtures and
improvements thereon, but excluding the Grantee's easement and any equipment or
other property located on such tower and such real property by virtue of such
easement.
"LENDER" means General Electric Capital Corporation or any of its
Affiliates.
"LETTER AGREEMENT" means the Letter Agreement Regarding Proposed
Television Station Joint Venture and Asset Sale from NBC to Ranger dated as of
October 21, 1997.
"LIEN" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or other adverse claim of
any kind in respect of such property or asset. For the purposes of this
Agreement, a Person shall be deemed to own subject to a Lien any property or
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such property or asset.
"LLC AGREEMENT" means the Amended and Restated Limited Liability
Company Agreement dated as of the Funding Date by and between LIN-Texas and
Outlet, substantially in the form of Exhibit C hereto.
"LMA STATION" means any broadcast television station, other than
KXTX-TV, for which the KXAS Business or the KNSD Business provides programming
and advertising services pursuant to an LMA Agreement.
"LP AGREEMENT" means the Amended and Restated Limited Partnership
Agreement dated as of the Funding Date by and between the LLC, as limited
partner, Outlet, as general partner, Ranger and NBC, substantially in the form
of Exhibit D hereto.
"LP SECURITY AGREEMENT" means the LP Security Agreement dated as of the
Funding Date, substantially in the form of that set forth in the exhibits to the
Venture Credit Agreement.
6
13
"MANAGEMENT SERVICES AGREEMENT" means the TV Master Services Agreement
dated as of the Closing Date by and between NBC, the LLC and the LP,
substantially in the form of Exhibit E hereto.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
condition (financial or otherwise), business, assets or results of operations of
the KNSD Business or the KXAS Business (in each case, other than the Excluded
Assets).
"MERGER" shall have the meaning ascribed to it in the Merger Agreement.
"MERGER AGREEMENT" means the Agreement and Plan of Merger among Ranger,
Ranger Acquisition Company and LIN-TV dated as of August 12, 1997 and amended as
of October 21, 1997, as the same may be further amended from time to time.
"1934 ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"NOVATION AGREEMENT" means the Novation Agreement dated as of the
Funding Date by and between the Lender, LIN-Texas and the LLC, substantially in
the form of that set forth in the exhibits to the Venture Credit Agreement.
"ORIGINAL GUARANTY" means the Original Guaranty dated as of the Funding
Date by and between the Lender and LIN-TV substantially in the form of that set
forth in the exhibits to the Venture Credit Agreement.
"PERMITTED LIENS" means (i) any Liens for Taxes, assessments and
similar charges that are not yet due or are being contested in good faith, (ii)
any mechanic's, materialman's, carrier's, repairer's and other similar Liens
arising or incurred in the ordinary course of business or that are not yet due
and payable or are being contested in good faith, (iii) any other Liens which
would not, individually or in the aggregate, materially affect the applicable
Business and (iv) any Liens granted pursuant to the Venture Security Agreement
(including, without limitation, the KXAS Lien and the KNSD Lien), the Venture
Pledge Agreement, the Guarantor Pledge Agreement and the LP Security Agreement.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"POST-CLOSING TAX PERIOD" means any Tax period (or portion thereof)
ending after the Funding Date or the Closing Date, as the case may be.
7
14
"PRE-CLOSING TAX PERIOD" means any Tax period (or portion thereof)
ending on or before the Funding Date or the Closing Date, as the case may be.
"REQUIRED CONSENT" means each consent or action required as a result of
the execution, delivery and performance of the Transaction Documents under any
agreement, contract, license, permit or other instrument binding upon any
Business Transferor or any of their Affiliates, except such consents or actions
as would not, individually or in the aggregate, have a Material Adverse Effect
if not received or taken by the Funding Date.
"SUBSIDIARY" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other Persons performing similar functions
are at the time owned by such Person.
"TAX" means taxes of any kind including but not limited to federal,
state, local or foreign net income tax, alternative or add-on minimum tax,
profits or excess profits tax, franchise tax, gross income, adjusted gross
income or gross receipts tax, employment related tax (including employee
withholding or employer payroll tax, FICA or FUTA), real or personal property
tax or ad valorem tax, sales or use tax, excise tax, license tax, stamp tax or
duty, any withholding or backup withholding tax, value added tax, severance tax,
prohibited transaction tax, premiums tax, occupation tax, or any similar fee,
assessment or charge, together with any interest or any penalty, addition to tax
or additional amount imposed by any governmental authority (domestic or foreign)
responsible for the imposition of any such tax.
"TAX RETURN" means any return, report or statement required to be filed
with any governmental authority with respect to Taxes.
"TOWER AGREEMENTS" means (i) the Tower Facility Easement Agreement in
respect of the KXAS Tower and (ii) the Tower Facility Easement Agreement in
respect of the KXTX Tower, in each case dated as of the Closing Date by and
between the LP and LIN-Texas substantially in the form of Exhibit F hereto.
"TRANSACTION DOCUMENTS" means this Agreement, the Assignment and
Assumption Agreements, the Guaranty, the Guarantor Pledge Agreement, the HM
Affiliation Agreement Amendments, the LLC Agreement, the LP Agreement, the LP
Security Agreement, the Management Services Agreement, the Merger Agreement, the
Novation Agreement, the Original Guaranty, the Tower Agreements, the Transition
Services Agreement, the Venture Affiliation Agreements, the Venture Credit
Agreement, the Venture Security Agreement, the
8
15
Venture Pledge Agreement, the Venture Note, the Venture Letter Agreement, the
WVTM Option Agreement, and any exhibits, schedules or attachments to each of the
foregoing.
"TRANSITION SERVICES AGREEMENT" means the Transition Services and
Access Agreement dated as of the Closing Date by and between the LP and LIN-
Texas, substantially in the form of Exhibit F hereto.
"VENTURE AFFILIATION AGREEMENTS" means the network affiliation
agreements and related side letters by and between (i) the LP and NBC with
respect to KXAS-TV and KNSD(TV) and (ii) Birmingham Broadcasting (WVTM TV), Inc.
and NBC with respect to WVTM-TV, in each case dated as of the Funding Date,
substantially in the form of Exhibits H, I and J hereto.
"VENTURE CREDIT AGREEMENT" means the Credit Agreement dated as of the
Funding Date by and between LIN-Texas and the Lender, substantially in the form
of Exhibit K hereto.
"VENTURE LETTER AGREEMENT" means the Letter Agreement dated as of the
Closing Date by and between NBC and Ranger with respect to the $2 million annual
payment for promotional expenses for KXAN-TV, serving Austin, Texas, WAVY-TV,
serving Norfolk, Virginia, WOOD-TV, serving Grand Rapids, Michigan and, if and
at any time after the parties consummate the transactions contemplated by the
WVTM Option Agreement, WVTM TV, serving Birmingham, Alabama, substantially in
the form of Exhibit L hereto.
"VENTURE LOAN" means the loan of $815.5 million in cash from the Lender
to LIN-Texas on the Funding Date pursuant to the Venture Note.
"VENTURE NOTE" means the Note evidencing the Venture Loan substantially
in the form of that set forth in the exhibits to the Venture Credit Agreement.
"VENTURE PLEDGE AGREEMENT" means the Venture Pledge Agreement dated as
of the Closing Date, substantially in the form of that set forth in the exhibits
to the Venture Credit Agreement.
"VENTURE SECURITY AGREEMENT" means the Venture Security Agreement dated
as of the Funding Date, substantially in the form of that set forth in the
exhibits to the Venture Credit Agreement.
"WVTM BUSINESS" means all of the business and operations currently and
hereafter conducted by the television station WVTM TV, serving Birmingham,
9
16
Alabama, including the assets and operations thereof and certain liabilities
thereof, to be sold or assumed pursuant to the WVTM Option Agreement.
"WVTM OPTION AGREEMENT" means the Asset Purchase Option Agreement dated
as of the Closing Date by and between Birmingham Broadcasting (WVTM TV), Inc.,
Ranger and NBC, substantially in the form of Exhibit M hereto.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
---- -------
Actions 4.16(a)
Assumed Liabilities 3.03
CERCLA 4.16(b)
Closing Date Closing 3.06(b)
Contracts 3.01(d)
Contributed Assets 3.01
Damages 13.02(a)
Employment-Related Liabilities 11.06
Environmental Laws 4.16(b)
Environmental Liabilities 4.16(b)
Excluded Assets 3.02
Excluded Liabilities 3.04
Financial Statements 5.17
Funding Date Closing 3.06(a)
Hazardous Materials 4.16(b)
Indemnified Party 13.03
Indemnifying Party 13.03
Insured Benefits 11.06
Interim Statements 5.17
KNSD Balance Sheet 5.10
KNSD Employment Arrangements 5.18
KNSD Intellectual Property Rights 5.14(a)
KNSD Licenses 5.15(a)
KNSD Plans 5.18
KNSD Required Consents 5.08
KXAS DB Plan 11.08
KXAS DC Plan 11.07
KXAS Transferred Employee 11.01
LIN Employer 11.01
10
17
TERM SECTION
---- -------
LIN Indemnified Person 14.03(c)
LIN Indemnitors 13.02
LIN-Texas Preamble
LIN-TV Preamble
LLC Preamble
LMA Agreement 5.11(b)
LP Preamble
Material Contracts 5.11(b)
Multiemployer Plan 11.09
NBC Preamble
NBC DC Plan 11.07
Necessary Lease 5.11(b)
Network Agreement 5.11(b)
Original Agreement Preamble
Outlet Preamble
▇▇▇▇▇ Cash 3.01
Potential Contributor 14.03
Ranger Preamble
RCRA 4.16(b)
Rescission Damages 14.03(c)
Retained Employees 11.01
Sports Agreement 5.11(b)
Third Party Claim 14.03(c)
Transferee DB Plan 11.08(a)
Transferor DB Plan 11.08(a)
Transfer Date 11.01
WARN Act 9.06
Year-End Statements 5.17
ARTICLE 2
CONTEMPLATED TRANSACTIONS
SECTION 2.01. Contemplated Transactions. (a) Funding Date
Transactions. Upon the terms and subject to the conditions set forth in the
Funding Date Transaction Documents, the parties agree that the following
transactions will occur in the following sequence on the Funding Date:
11
18
(i) North Texas Broadcasting Corp. will, and will cause its
Subsidiary to, pursuant to an Assignment and Assumption Agreement,
contribute, convey, transfer, assign and deliver to LIN-Texas, free
and clear of all Liens, other than Permitted Liens, all of its right,
title and interest in, to and under the assets, properties and
business, of every kind and description, wherever located, real,
personal or mixed, tangible or intangible (including, without
limitation, all of the FCC Authorizations with respect to the KXAS
Business), owned, held or used primarily in the conduct of the KXAS
Business by North Texas Broadcasting Corp. in a manner that is
consistent with the terms and conditions of Section 3.01;
(ii) the Lender will make the Venture Loan to LIN-Texas,
pursuant to the Venture Credit Agreement;
(iii) LIN-Texas will grant the KXAS Lien to the Lender as
collateral for the Venture Loan, pursuant to the Venture Security
Agreement;
(iv) Outlet will contribute an undivided 99% interest in the
KNSD Business to the LLC, pursuant to Article 3 hereof, in exchange
for an initial 49.9% voting interest (to be increased to a 50% voting
interest upon the consummation of the final Closing Date Transaction)
and a 79.62% equity interest in the LLC;
(v) LIN-Texas will contribute the KXAS Business (subject to the
KXAS Lien) to the LLC, pursuant to Article 3 hereof, in exchange for
an initial 50.1% voting interest (to be decreased to a 50% voting
interest upon the consummation of the final Closing Date Transaction)
and a 20.38% equity interest in the LLC;
(vi) the LLC will grant the KNSD Lien to the Lender as
collateral for the Venture Loan, pursuant to the Venture Security
Agreement;
(vii) (A) the LLC will contribute, pursuant to Article 3 hereof,
the undivided 99% interest in the KNSD Business (subject to the KNSD
Lien), to the LP, (B) Outlet will contribute, pursuant to Article 3
hereof, its remaining undivided 1% interest in the KNSD Business to
the LP, and (C) the LP will enter into the LP Security Agreement,
pursuant to which the LP will agree (1) to continue the KXAS Lien and
the KNSD Lien and (2) to grant a security interest to the Lender in
the undivided 1% interest in the
12
19
KNSD Business contributed to the LP by Outlet pursuant to the
immediately preceding clause (B);
(viii) (A) the Lender will release LIN-Texas from any and all
obligations under the Venture Credit Agreement, (B) the Lender and
LIN- Texas will enter into the Novation Agreement with the LLC and (C)
the Lender will enter into the Original Guaranty with LIN-TV;
(ix) NBC will enter into (A) the Venture Affiliation Agreements
with respect to KXAS-TV, serving Dallas, Texas, KNSD(TV), serving San
Diego, California, and WVTM-TV, serving Birmingham, Alabama, (B) the
HM Affiliation Agreement Amendments with respect to the HM
NBC-Affiliated Stations and (C) the Venture Letter Agreement, in each
case with the respective other parties thereto; and
(x) LIN-Texas will transfer the cash proceeds of the Venture
Loan to LIN-TV and/or its Affiliates immediately preceding the
Effective Time.
(b) Closing Date Transactions. Upon the terms and subject to the
conditions set forth in the Closing Date Transaction Documents, the parties
agree that the following transactions will occur in the following sequence
immediately following the Effective Time:
(i) the LLC will contribute, pursuant to Article 3 hereof, the
KXAS Business (subject to the KXAS Lien);
(ii) the LLC will pledge to the Lender its 99.75% limited
partnership interest in the LP as additional collateral for the
Venture Loan, pursuant to the Venture Pledge Agreement;
(iii) the Guarantor will (A) enter into the Guaranty and (B)
cause to be pledged to the Lender the 50% voting interest and 20.38%
equity interest in the LLC held by LIN-Texas as collateral for the
Guaranty, pursuant to the Guarantor Pledge Agreement;
(iv) LIN-TV will be released from the Original Guaranty;
(v) NBC, the LLC and the LP will enter into the Management
Services Agreement;
13
20
(vi) Birmingham Broadcasting (WVTM TV), Inc., Ranger and NBC
will enter into the WVTM Option Agreement, granting Ranger the option,
exercisable during the period from the date of the WVTM Option
Agreement until December 31, 1999, to purchase the WVTM Business; and
(vii) the LP and the other parties thereto will enter into (A)
the Transition Services Agreement and (B) the Tower Agreements.
ARTICLE 3
TRANSFERS OF ASSETS AND LIABILITIES
SECTION 3.01. Asset Contribution. Except as otherwise provided below,
upon the terms and subject to the conditions of this Agreement, each Business
Transferor agrees to contribute, convey, transfer, assign and deliver, or cause
to be contributed, conveyed, transferred, assigned and delivered, to the
relevant Business Transferee on the date specified in Section 2.01, free and
clear of all Liens, other than Permitted Liens, all (or in the case of any
Business Transfer involving less than 100% of the relevant Business, such
specified ownership percentage) of such Business Transferor's right, title and
interest in, to and under the assets, properties and business, of every kind and
description, wherever located, real, personal or mixed, tangible or intangible,
owned, held or used primarily in the conduct of the KXAS Business or the KNSD
Business, as the case may be, by such Business Transferor as the same shall
exist on the Funding Date (or the Closing Date in the case of any Business
Transfer to occur on such date) including all assets of the KXAS Business or the
KNSD Business, as the case may be, hereafter acquired by such Business
Transferor (the "CONTRIBUTED ASSETS"), and including, without limitation, all
(or such specified ownership percentage) of the right, title and interest of
such Business Transferor in, to and under all (or such specified ownership
percentage) of the following relating primarily to the KXAS Business or the KNSD
Business, as the case may be, subject to Section 3.02;
(a) real property and leases of, and other interests in, real property
used or held for use in the conduct of the KXAS Business (including, without
limitation, the KXAS Tower) or the KNSD Business, as the case may be, in each
case together with all buildings, fixtures, and improvements erected thereon;
(b) personal property and interests therein, including machinery,
equipment, furniture, office equipment, communications equipment (including,
14
21
without limitation, the KXAS Tower and the Master Control System (as defined in
the Transition Services Agreement)), vehicles, spare and replacement parts, and
other tangible property;
(c) work-in-process, supplies, programs, programming materials and
other inventories;
(d) rights under all contracts, agreements, leases, licenses,
commitments, sales and purchase orders and other instruments in respect of the
KXAS Business or the KNSD Business, as the case may be, including, without
limitation, all retransmission consent agreements, rep firm contracts
(including, without limitation, the ▇▇▇▇▇ representation agreement), advertiser
contracts, broadcast time sales agreements, programming contracts (including
cash and barter arrangements) and trade out agreements in respect thereof,
whether signed or unsigned (collectively, the "CONTRACTS");
(e) accounts, notes and other receivables;
(f) deposits, reserves and prepaid expenses, including but not limited
to ad valorem taxes, leases and rentals;
(g) all of the ▇▇▇▇▇ cash located at the operating facilities of the
KXAS Business or the KNSD Business, as the case may be ("▇▇▇▇▇ CASH");
(h) the relevant Business Transferor's rights, claims, credits, causes
of action or rights of set-off against third parties relating to the KXAS
Business or the KNSD Business, as the case may be, including, without
limitation, unliquidated rights under producers' and vendors' warranties;
(i) patents, copyrights, trademarks, trade names, mask works,
servicemarks, service names, technology, know-how, processes, trade secrets,
inventions, proprietary data, formulae, research and development data, computer
software programs and other intangible property (excluding any rights in or to
the Excluded Names) and any applications for the same, in each case owned or
licensed by the relevant Business Transferor or any Affiliate of such Business
Transferor and used or held or held for use primarily in the KXAS Business or
the KNSD Business, as the case may be;
(j) transferable licenses, permits or other governmental authorization
affecting, or relating in any way to, the KXAS Business or the KNSD Business, as
the case may be, including without limitation, the FCC Authorizations applicable
15
22
to such Business, and all applications therefor, together with any renewals,
extensions or modifications thereof and additions thereto;
(k) books, records, files and papers, whether in hard copy or
computer format, used in the KXAS Business or the KNSD Business, as the case may
be, including, without limitation, engineering information, sales and
promotional literature, manuals and data, sales and purchase correspondence,
lists of present and former suppliers, lists of present and former customers,
personnel and employment records, and any information relating to any Tax
imposed on the KXAS Assets or the KNSD Assets, as the case may be; and
(l) the assets set forth on Schedule 3.01, whether or not primarily
relating to the KXAS Business.
SECTION 3.02. Excluded Assets. Each Business Transferee expressly
understands and agrees that the following assets and properties of the relevant
Business Transferor (the "EXCLUDED ASSETS") shall be excluded from the KXAS
Assets or the KNSD Assets, as the case may be:
(a) all of such Business Transferor's cash and cash equivalents on
hand and in banks, except for the ▇▇▇▇▇ Cash;
(b) the KXTX Tower;
(c) the assets set forth on Schedule 3.02;
(d) the Excluded Names; and
(e) any KXAS Assets or KNSD Assets, as the case may be, sold or
otherwise disposed of in the ordinary course of business and not in violation of
any provisions of this Agreement or the Merger Agreement during the period from
the date hereof until the Funding Date (or the Closing Date in the case of any
Business Transfer to occur on such date).
SECTION 3.03. Assumed Liabilities. Except as provided in Section 3.04
and Article 11, upon the terms and subject to the conditions of this Agreement,
each Business Transferee agrees, effective at the date specified in Section
2.01, to assume, pay, perform and discharge all (or in the case of any Business
Transfer involving less than 100% of the relevant Business, such specified
percentage) of the liabilities and obligations of whatever nature (whether
absolute, accrued, fixed, contingent or otherwise and whether known or unknown)
arising primarily out of or primarily in connection with (i) the KXAS Assets or
KNSD Assets, as the case may be, (ii) the operation of the KXAS Business or the
KNSD Business, as the case may be, by the relevant Business Transferor and its
Affiliates at any time prior to the Funding Date (or the Closing Date in the
case of any Business Transfer to occur on such date), (iii) the ownership, use
or sale of the KXAS Assets or KNSD Assets, as the case
16
23
may be, (iv) the production and sale of any product or service of the KXAS
Business or the KNSD Business, as the case may be (collectively, but excluding
the Excluded Liabilities, the "ASSUMED LIABILITIES"). The Assumed Liabilities
shall include, without limiting the generality of the foregoing, and whether or
not incurred in the ordinary course of business (but subject to Section 3.04 and
Article 11 hereof), the following to the extent primarily related to the KXAS
Business or the KNSD Business, as the case may be:
(a) all (or such specified percentage of the) liabilities and
obligations of the relevant Business Transferor arising under the relevant
Contracts, including, without limitation, all liabilities or obligations
attributable to any failure by such Business Transferor to comply with the terms
thereof;
(b) as to products or services of the KXAS Business or the KNSD
Business, as the case may be, which were produced, sold or held as inventory
(whether as work-in-process, supplies, programs, programming materials or other
inventories) by the relevant Business Transferor prior to the Funding Date (or
the Closing Date in the case of any Business Transfer to occur on such date) all
(or such specified percentage) of the liabilities and obligations with respect
to any liability to third parties resulting from, caused by or arising out of,
directly or indirectly, use, broadcast or transmission of any such products or
services (or any part or element thereof);
(c) all (or such specified percentage of the) accounts, notes or other
payables in respect of the KXAS Business or the KNSD Business, as the case may
be, as of the Funding Date (or the Closing Date in the case of any Business
Transfer to occur on such date);
(d) all (or such specified percentage of any) agent's commissions
relating to all accounts, notes and other receivables in respect of the KXAS
Business or the KNSD Business, as the case may be, whether or not such
receivables are collected;
(e) all (or such specified percentage of the) obligations and
liabilities of each Business Transferor with respect to any pending or
threatened actions, proceedings or governmental investigations against or
involving the KXAS Business or the KNSD Business, as the case may be;
(f) to the extent set forth in Article 10 of this Agreement, any
obligation or liability for any Tax arising from or with respect to the KXAS
Assets or the
17
24
KNSD Assets or the operations of the KXAS Business or the KNSD Business for the
relevant Pre-Closing Tax Periods;
(g) all (or such specified percentage) of Environmental Liabilities
arising in connection with or primarily relating to the KXAS Business or the
KNSD Business, as the case may be (as currently or previously conducted), the
KXAS Assets or the KNSD Assets, as the case may be, or any activities or
operations occurring or conducted at the real property owned, leased, operated
or subleased by the KXAS Business or the KNSD Business, as the case may be
(including, without limitation, off-site disposal); and
(h) all (or such specified percentage of the) other obligations and
liabilities with respect to the conduct of the KXAS Business or the KNSD
Business, as the case may be, or the ownership of the KXAS Assets or the KNSD
Assets, as the case may be, by the relevant Business Transferor or any of its
Affiliates or predecessors at any time prior to the Funding Date (or the Closing
Date in the case of any Business Transfer to occur on such date).
SECTION 3.04. Excluded Liabilities. Notwithstanding any other provision
of this Agreement or doctrine of law, each Business Transferor shall retain, and
no Business Transferee shall assume, or be liable with respect to, any and all
liabilities and obligations of any Business Transferor described below (the
"EXCLUDED LIABILITIES"):
(a) except as contemplated in Sections 10.03(c), 14.03(c), 15.03 and
15.11, any liability or obligation of any Business Transferor, or any of its
Affiliates, or any of their respective directors, officers, members, managers,
stockholders or agents, arising out of, or relating to, the Transaction
Documents or the Contemplated Transactions including, without limitation, any
Tax incurred as a result thereof and all fees and expenses of their respective
attorneys, accountants or financial advisors;
(b) any liability or obligation of whatever nature, whether accrued,
contingent, absolute, determined, determinable or otherwise (i) relating to or
based on events or conditions occurring or existing in connection with, or
arising out of, the Excluded Assets (including without limitation any case,
litigation, proceeding or investigation arising out of or related to the
collapse of the transmission tower in October 1996 owned by KXTX-TV and used by
the KXAS Business) or (ii) of any Business Transferor or any of its Affiliates
or its or their predecessors at any time in the past or any prior owner of all
or part of its business or assets, whether now existing, hereafter arising or
arising after the Funding Date (or the Closing Date in the case of any Business
Transfer to occur on such date) that relates to, is
18
25
based on, exists in connection with, or arises out of assets, properties,
operations or businesses of such Business Transferor, other than the KXAS Assets
and the KXAS Business or the KNSD Assets and the KNSD Business, as the case may
be;
(c) to the extent set forth in Article 10 of this Agreement, any
obligation or liability for any Tax arising from or with respect to the KXAS
Assets or the KNSD Assets or the operations of the KXAS Business or the KNSD
Business for the periods prior to the transfer;
(d) Employment-Related Liabilities in respect of the KXAS Business and
the KNSD Business; and
(e) any Debt (as defined in the LP Agreement) in respect of the KXAS
Business or the KNSD Business, as the case may be, including without limitation
any Debt owed by such Business Transferor to one or more of its Affiliates.
SECTION 3.05. Assignment of Contracts and Rights. Anything in this
Agreement to the contrary notwithstanding, this Agreement shall not constitute
an agreement to assign any Contributed Asset or any claim or right or any
benefit arising thereunder or resulting therefrom if such assignment, without
the consent of a third party thereto, would constitute a breach or other
contravention of such Contributed Asset or in any way adversely affect the
rights of the relevant Business Transferor or Business Transferee thereunder.
Each Business Transferor and Business Transferee will use their reasonable best
efforts (but without any payment of money, transfer of assets or provision of
other services by such parties) to obtain the consent of the other parties to
any such Contributed Asset or any claim or right or any benefit arising
thereunder for the assignment thereof to the relevant Business Transferee as
such Business Transferee may request. If such consent is not obtained, or if an
attempted assignment thereof would be ineffective or would adversely affect the
rights of the relevant Business Transferor thereunder so that the relevant
Business Transferee would not in fact receive all such rights, such parties will
cooperate in a mutually agreeable arrangement under which the relevant Business
Transferee would obtain the benefits and assume the obligations thereunder in
accordance with this Agreement, including subcontracting, sublicensing, or
subleasing to such Business Transferee, or under which the relevant Business
Transferor would enforce for the benefit of such Business Transferee, with such
Business Transferee assuming such Business Transferor's obligations, any and all
rights of such Business Transferor against a third party thereto. Each Business
Transferor will promptly pay to the relevant Business Transferee when received
all monies received by such Business Transferor under any Contributed Asset or
any claim or right or any benefit arising thereunder, except to the extent the
same represents an Excluded Asset. In such event, such
19
26
parties shall, to the extent the benefits therefrom and obligations thereunder
have not been provided by alternate arrangements satisfactory to them, negotiate
in good faith an adjustment in the consideration granted by the relevant
Business Transferee for the relevant Contributed Assets.
SECTION 3.06. Closing. (a) The closing (the "FUNDING DATE CLOSING") of
the Funding Date Transactions shall take place after 11:00 PM (EST) on the
Funding Date at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, as soon as possible, but in no event later than the Business Day
prior to the Effective Time after satisfaction of the conditions set forth in
Section 12.01. At the Funding Date Closing, each Business Transferor that is
party to a Business Transfer to occur on the Funding Date shall enter into an
Assignment and Assumption Agreement with the relevant Business Transferee and
each Business Transferor shall deliver to the relevant Business Transferee such
warranty deeds, bills of sale, endorsements, consents, assignments and other
good and sufficient instruments of conveyance and assignment as the parties and
their respective counsel shall deem reasonably necessary or appropriate to vest
in all (or in the case of any Business Transfer involving less than 100% of the
relevant Business, such specified percentage of the) right, title and interest
in, to and under the relevant Contributed Assets.
(b) The closing (the "CLOSING DATE CLOSING") of the Closing Date
Transactions shall take place as soon as practicable after 12:01 AM (EST) on the
Closing Date at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, but in any event on the Closing Date after satisfaction of the
conditions set forth in Section 12.02. At the Closing Date Closing, each
Business Transferor that is party to a Business Transfer to occur on the Closing
Date shall enter into an Assignment and Assumption Agreement with the relevant
Business Transferee and each Business Transferor shall deliver to the relevant
Business Transferee such warranty deeds, bills of sale, endorsements, consents,
assignments and other good and sufficient instruments of conveyance and
assignment as the parties and their respective counsel shall deem reasonably
necessary or appropriate to vest in all (or in the case of any Business Transfer
involving less than 100% of the relevant Business, such specified percentage of
the) right, title and interest in, to and under the relevant Contributed Assets.
20
27
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF RANGER
Ranger represents and warrants to each of the other parties hereto as
of the date hereof that:
SECTION 4.01. Corporate Existence and Power. Ranger is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers and all governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted. Ranger has delivered to each of the other parties
hereto true and complete copies of its certificate of incorporation and bylaws
as currently in effect.
SECTION 4.02. Corporate Authorization. The execution, delivery and
performance by Ranger of the Transaction Documents to which it is a party and
the consummation of the Contemplated Transactions (to the extent it is a
participant therein) are within Ranger's corporate powers and have been duly
authorized by all necessary corporate action on the part of Ranger. This
Agreement constitutes, and the other Transaction Documents to which Ranger is a
party, when executed by Ranger, will constitute (assuming the due authorization
and execution of the other parties thereto) valid and binding agreements of
Ranger.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by Ranger of the Transaction Documents to which it is a party and
the consummation of the Contemplated Transactions (to the extent it is a
participant therein) require no material action by or in respect of, or filing
with, any Governmental Entity other than compliance with the Communications Act.
SECTION 4.04. Noncontravention. The execution, delivery and performance
by Ranger of the Transaction Documents to which it is a party and the
consummation of the Contemplated Transactions (to the extent it is a participant
therein) do not and will not (i) violate the certificate of incorporation or
bylaws of Ranger or (ii) assuming compliance with the matters referred to in
Section 4.03, violate any applicable law, rule, regulation, judgment,
injunction, order or decree.
SECTION 4.05. Litigation. Except as set forth in Schedule 4.05, there
is no action, suit, investigation or proceeding (or any basis therefor) pending
against, or to the knowledge of Ranger, threatened against or affecting Ranger
or any of its Affiliates, before any arbitrator or any Governmental Entity
which, (i) as of the date of this Agreement, questions the validity of any
Transaction Document or any action to be taken by Ranger or any of its
Affiliates in connection with the consummation of the Contemplated Transactions
or (ii) as of the date of this Agreement, would prevent or result in a material
delay of the consummation of the Contemplated Transactions. As of the date
hereof, neither Ranger nor any of its
21
28
Affiliates nor any of their respective properties is or are subject to any
order, writ, judgment, injunction, decree, determination or award which would
prevent or result in a material delay of the consummation of the Contemplated
Transactions.
SECTION 4.06. Sufficiency of and Title to the KXAS Assets. (a) The KXAS
Assets, together with the easements to be provided to the KXAS Business under
the Tower Agreement relating to the KXTX Tower and the services to be provided
to the KXAS Business under the Transition Services Agreement and the Management
Services Agreement, constitute all of the property and assets used or held for
use primarily in the KXAS Business and are adequate to conduct the KXAS Business
as currently conducted.
(b) Upon consummation of the Closing Date Transactions, the LP will
have acquired good and marketable title in and to, or a valid leasehold interest
in, each of the KXAS Assets, free and clear of all Liens, except for Permitted
Liens.
SECTION 4.07. Finders' Fees. Except for ▇▇▇▇▇▇▇▇▇ & Co., LLC and Chase
Securities Inc., whose fees will be paid by Ranger or one of its Affiliates,
there is no investment banker, broker, finder or other intermediary which has
been retained by or is authorized to act on behalf of Ranger or one of its
Affiliates who might be entitled to any fee or commission in connection with the
Contemplated Transactions.
SECTION 4.08. Amendments to, and Notices under, the Merger Agreements.
(a) Ranger has not agreed to (i) amend any of Sections 3.1, 4.1, 4.2, 4.6, 5.3,
5.4, 5.5, 6.1, 6.2, 7.1, 7.5 or 7.6 of the Merger Agreement on or prior to the
date hereof or (ii) waive any inaccuracies in the representations and warranties
(or permit LIN-TV to revise any of the Disclosure Schedules with respect
thereto), or compliance with any of the agreements or conditions contained in
the Merger Agreement, on or prior to the date hereof.
(b) Prior to the date hereof, Ranger has (i) notified an executive
officer of NBC in writing of any notices received or given by Ranger under the
Merger Agreement pursuant to Section 8.2 of the Merger Agreement, whether due to
any party's obligations under Section 4.4 thereof or otherwise, and (ii)
provided NBC with true and complete copies of the Disclosure Schedules to the
Merger Agreement, as they existed on the date thereof and which have not been
amended or revised since such date.
22
29
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF NBC
NBC represents and warrants to each of the other parties hereto as of
the date hereof that:
SECTION 5.01. Corporate Existence and Power. NBC is a corporation duly
incorporated, validly existing and in good standing under the laws of Delaware
and has all corporate powers and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. Outlet is a corporation duly incorporated, validly
existing and in good standing under the laws of Rhode Island and has all
corporate powers and all material governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as now
conducted.
SECTION 5.02. Corporate Authorization. The execution, delivery and
performance by NBC and its Affiliates of the Transaction Documents to which they
are parties and the consummation of the Contemplated Transactions (to the extent
they are participants therein) are within the corporate powers of NBC and such
Affiliates and have been duly authorized by all necessary corporate action on
the part of NBC and such Affiliates. This Agreement has been duly executed and
delivered by NBC and constitutes, and the other Transaction Documents to which
NBC and its Affiliates are parties, when executed by NBC and/or such Affiliates,
will constitute (assuming the due authorization and execution of the other
parties thereto) a valid and binding agreement of NBC and such Affiliates
enforceable in accordance with their terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principles of equity.
SECTION 5.03. Governmental Authorization. The execution, delivery and
performance by NBC and its Affiliates of the Transaction Documents to which they
are parties and the consummation of the Contemplated Transactions (to the extent
they are participants therein) require no material action by or in respect of,
or material filing with, any Governmental Entity other than (i) compliance with
any applicable requirements of the 1934 Act and (ii) compliance with the
Communications Act.
SECTION 5.04. Noncontravention. The execution, delivery and performance
by NBC and its Affiliates of the Transaction Documents to which they are parties
and the consummation of the Contemplated Transactions (to the extent they are
participants therein) do not and will not (i) violate the certificate of
incorporation or bylaws of NBC or such Affiliates, (ii) assuming compliance with
the matters referred to in Section 5.03, violate any applicable material law,
rule,
23
30
regulation, judgment, injunction, order or decree or (iii) violate or constitute
a default under any Material Contract.
SECTION 5.05. Litigation. Except as set forth in Schedule 4.05 and/or
6.05, there is no action, suit, investigation or proceeding (or any basis
therefor) pending against, or to the knowledge of NBC threatened against or
affecting NBC or any of its Affiliates before any arbitrator or any Governmental
Entity which (i) individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect, (ii) as of the date of this Agreement,
questions the validity of any Transaction Document or any action to be taken by
NBC or any of its Affiliates in connection with the consummation of the
Contemplated Transactions or (iii) as of the date of this Agreement, would
prevent or result in a material delay of the consummation of the Contemplated
Transactions. As of the date hereof, neither NBC nor any of its Affiliates nor
any of their respective properties is or are subject to any order, writ,
judgment, injunction, decree, determination or award which would prevent or
result in a material delay of the consummation of the Contemplated Transaction.
SECTION 5.06. Sufficiency of and Title to the KNSD Assets. (a) The KNSD
Assets, together with the services to be provided to the KNSD Business under the
Management Services Agreement, constitute all of the property and assets used or
held for use primarily in the KNSD Business and are adequate to conduct the KNSD
Business as currently conducted.
(b) Upon consummation of the Closing Date Transactions, the LP will
have acquired good and marketable title in and to, or a valid leasehold interest
in, each of the KNSD Assets, free and clear of all Liens, except for Permitted
Liens.
SECTION 5.07. Finders' Fees. Except for ▇▇▇▇▇▇ Brothers Holdings Inc.
and Evercore Partners Inc., whose fees will be paid by NBC or one of its
Affiliates, there is no investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf of NBC who might be
entitled to any fee or commission from any other party hereto or any of their
respective Affiliates upon consummation of the Contemplated Transactions.
SECTION 5.08. Required and Other Consents. Schedule 5.08 sets forth
each agreement, contract or other instrument binding upon NBC or any of its
Affiliates or any KNSD License requiring a consent or other action by any Person
as a result of the execution, delivery and performance of the Transaction
Documents, except such consents or actions as would not, individually or in the
aggregate, have a Material Adverse Effect if not received or taken by the
Funding Date (the "KNSD REQUIRED CONSENTS").
24
31
SECTION 5.09. Absence of Certain Changes. Since September 30, 1997 and
except as contemplated by the Transaction Documents, the KNSD Business has been
conducted in the ordinary course consistent with past practices and there has
not been:
(a) any event, occurrence, development or state of circumstances or
facts which, individually or in the aggregate, has had or would reasonably be
expected to have a Material Adverse Effect;
(b) any termination or cancellation of, or any modification to, any
agreement, arrangement or understanding which has had or would reasonably be
expected to have a Material Adverse Effect;
(c) any material change by NBC in its accounting methods, principles
or practices in respect of the KNSD Business;
(d) any revaluation by NBC of any of the material assets of the KNSD
Business, except as required by generally accepted accounting principles;
(e) any entry by NBC or any of its Subsidiaries into any commitment or
transaction material to the KNSD Business;
(f) any increase in or establishment of any bonus, insurance,
severance, deferred compensation, pension, retirement, profit sharing, stock
option (including, without limitation, the granting of stock options, stock
appreciation rights, performance awards, or restricted stock awards), stock
purchase or other employee benefit plan or agreement or arrangement, or any
other increase in the compensation payable or to become payable to any officers
or key employees of the KNSD Business other than in the ordinary course of
business consistent with past practice or as was required under employment,
severance or termination agreements in effect as of September 30, 1997;
(g) any bonus paid to the employees of the KNSD Business other than in
the ordinary course of business and consistent with past practice;
(h) any sale or transfer of any material amount of the assets of the
KNSD Business other than in the ordinary course of business and consistent with
past practice; or
(i) any loan, advance or capital contribution to or investment in any
Person in an aggregate amount in excess of $100,000 by the KNSD Business.
25
32
SECTION 5.10. No Undisclosed Material Liabilities. There are no
liabilities of the KNSD Business of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, and there is no
existing condition, situation or set of circumstances which could reasonably be
expected to result in such a liability, in each case that would be required to
be reflected or reserved against in the unaudited balance sheet (including the
notes thereto) of the KNSD Business dated September 30, 1997 (the "KNSD BALANCE
SHEET") prepared in accordance with generally accepted accounting principles as
applied in such balance sheet, other than:
(a) liabilities provided for in the KNSD Balance Sheet; and
(b) liabilities which, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect.
SECTION 5.11. Material Contracts. (a) Except pursuant to any of the
Transaction Documents, from and after September 30, 1997, none of NBC, its
Affiliates or the KNSD Business has entered into any contract, agreement or
other document or instrument that is, individually or in the aggregate material
to the KNSD Business or any material amendment, modification or waiver under any
contract, agreement or other document or instrument that existed prior to such
date and is individually or in the aggregate material to the KNSD Business.
(b) Except as contemplated by any of the Transaction Documents, none
of NBC, its Affiliates or the KNSD Business is a party to, nor has any of them
entered into or as of the date hereof made, any material amendment or
modification to or granted any material waiver under the following
(collectively, "MATERIAL CONTRACTS"): (i) any network affiliation agreement for
the KNSD Business (a "NETWORK AGREEMENT"), (ii) any material sports broadcasting
agreement for the KNSD Business (a "SPORTS AGREEMENT"), (iii) any main
transmitter site or main studio lease for the KNSD Business (a "NECESSARY
LEASE"), (iv) any agreement pursuant to which the KNSD Business agrees to
provide programming to an LMA Station, or pursuant to which the KNSD Business
has either a contingent obligation or the right to purchase the assets of an LMA
Station or any shares of capital stock of any corporation holding any assets
relating to an LMA Station (an "LMA AGREEMENT") or (v) any partnership or joint
venture agreement obligating the KNSD Business to contribute cash in excess of
$200,000 per year.
(c) Each of the Material Contracts is valid and enforceable against
NBC, its Affiliates or the KNSD Business, as the case may be, in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency or
similar laws
26
33
affecting creditors' rights generally and general principles of equity, and
there is no default thereunder by any of such parties or, to the knowledge of
NBC, by any other party thereto, and no event has occurred that with the lapse
of time or by the giving of notice or both would constitute a default hereunder
by NBC, such Affiliates or the KNSD Business or, to the knowledge of NBC, any
other party thereto, in any such case in which such default or event would
reasonably be expected to have a Material Adverse Effect. In addition, none of
NBC, its Affiliates or the KNSD Business is in material breach of any Network
Agreement, Sports Agreement or LMA Agreement (including any breach which would
give rise to a right to terminate any such agreement). None of NBC, its
Affiliates or the KNSD Business has received any written notice (or to the
knowledge of NBC, any other notice) of default or termination under any Material
Contract, and to the knowledge of NBC, there exists no basis for any assertion
of a right of default or termination under such agreements. None of NBC, its
Affiliates or the KNSD Business has received any written notice (or, to the
knowledge of NBC, any other notice) of the exercise of a put option or other
right pursuant to which NBC, such Affiliates or the KNSD Business would be
obligated to purchase capital stock or assets relating to any LMA Station.
(d) None of NBC, its Affiliates or the KNSD Business is in breach of
any material agreement, except for breaches that would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 5.12. Compliance with Laws and Court Orders. Neither NBC nor
any of its Affiliates is in violation of, and to the knowledge of NBC none of
them is under investigation with respect to or has been threatened to be charged
with or been given notice of any violation of, any law, rule, regulation,
judgment, injunction, order or decree applicable to the KNSD Assets or the
conduct of the KNSD Business, except that no representation or warranty is made
in this Section 5.12 with respect to Environmental Laws, the Communications Act
and FCC rules, regulations and policies, and except for violations that have not
had and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
SECTION 5.13. Tangible Property. All of the KNSD Assets are in good
operating condition, reasonable wear and tear excepted, and usable in the
ordinary course of business, except where the failure to be in such condition or
so usable would not individually or in the aggregate reasonably be expected to
have a Material Adverse Effect.
SECTION 5.14. Intellectual Property. Except to the extent that the
inaccuracy of any of the following (or the circumstances giving rise to such
27
34
inaccuracy), individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect:
(a) NBC or one of its Affiliates owns, or is licensed to use (in each
case, clear of any Liens, other than Permitted Liens), all the Intellectual
Property Rights used, or held for use, in, or necessary for the conduct of, the
KNSD Business (the "KNSD INTELLECTUAL PROPERTY RIGHTS"); (b) the use of any KNSD
Intellectual Property by NBC or one of its Affiliates does not infringe on or
otherwise violate the rights of any Person and is in accordance with any
applicable license pursuant to which NBC or one of its Affiliates acquired the
right to use such KNSD Intellectual Property; and (c) to the knowledge of NBC,
no Person is challenging, infringing on or otherwise violating any right of NBC
or one of its Affiliates with respect to any KNSD Intellectual Property owned by
and/or licensed to NBC or one of its Affiliates; and (d) neither NBC nor one of
its Affiliates has received any written notice of any pending claim with respect
to any KNSD Intellectual Property used in connection with the KNSD Business and,
to NBC's knowledge, no KNSD Intellectual Property owned and/or licensed for use
in connection with the KNSD Business is being used or enforced in a manner that
would result in the abandonment, cancellation or unenforceability of such KNSD
Intellectual Property.
SECTION 5.15. Licenses and Permits. (a) NBC or one of its Affiliates
has all permits, licenses, waivers and authorizations (other than FCC
Authorizations, but including licenses, authorizations and certificates of
public convenience and necessity from applicable state and local authorities),
which are necessary to the KNSD Business (collectively, "KNSD LICENSES"), other
than any Licenses the failure of which to have would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. NBC or one
of its Affiliates is in compliance with the terms of all KNSD Licenses (other
than FCC Authorizations), except for such failures so to comply which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. NBC or one of its Affiliates has duly performed its obligations
under and each is in compliance with the terms of such KNSD Licenses, except for
such non-performance or non-compliance as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. There is no
pending or, to the knowledge of NBC, threatened application, petition, objection
or other pleading with any Governmental Entity other than the FCC which
challenges or questions the validity of, or any rights of the holder under, any
KNSD License (other than an FCC Authorization), except for such applications,
petitions, objections or other pleadings, that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or that are
applicable to the broadcast industry generally. No representation or warranty is
made in this Section 5.15 with respect to KNSD Licenses required by
Environmental Laws.
28
35
(b) Schedule 5.15(b) sets forth all material FCC Authorizations held by
or in respect of the KNSD Business. Except as set forth in Schedule 5.15(b) and
except as does not have a Material Adverse Effect: (i) NBC is financially
qualified and, to the knowledge of NBC, otherwise qualified to hold such FCC
Authorizations or to control such FCC Authorizations, as the case may be, (ii)
NBC or one of its Affiliates holds such FCC Authorizations, (iii) NBC is not
aware of any facts or circumstances relating to the FCC qualifications that
would prevent the FCC's granting the FCC Applications, (iv) the KNSD Business is
in material compliance with all FCC Authorizations held by it and with the
Communications Act and (v) there is not pending or, to the knowledge of NBC,
threatened any application, petition, objection or other pleading with the FCC
or other Governmental Entity which challenges the validity of, or any rights of
the holder under, any FCC Authorization held by the KNSD Business except for
rule making or similar proceedings of general applicability to Persons engaged
in substantially the same business conducted by the KNSD Business.
SECTION 5.16. Environmental Matters. (a) Except as disclosed in
Schedule 5.16 and except as would not reasonably be expected to have a Material
Adverse Effect, (i) the operations of the KNSD Business and the use of the KNSD
Assets have been and are in compliance with all Environmental Laws and with all
KNSD Licenses required by Environmental Laws, (ii) there are no pending or, to
the knowledge of NBC, threatened, actions, suits, claims, investigations or
other proceedings (collectively, "ACTIONS") under or pursuant to Environmental
Laws against NBC or any of its Affiliates in respect of the KNSD Business, (iii)
neither the KNSD Business nor the KNSD Assets is subject to any Environmental
Liabilities, and, to the knowledge of NBC, no facts, circumstances or conditions
relating to, arising from, associated with or attributable to any real property
currently or, to the knowledge of NBC, formerly owned, operated or leased by the
KNSD Business or operations thereon that could reasonably be expected to result
in Environmental Liabilities, (iv) all real property owned, and, to the
knowledge of NBC, all real property operated or leased, by the KNSD Business is
free of contamination from Hazardous Materials and (v) there is not now, nor, to
the knowledge of NBC, has there been in the past, on, in or under any real
property owned, leased or operated by the KNSD Business or any of their
predecessors (A) any underground storage tanks, above-ground storage tanks,
dikes or impoundments containing Hazardous Materials, (B) any
asbestos-containing materials, (C) any polychlorinated biphenyls or (D) any
radioactive substances.
(b) As used in this Agreement, "ENVIRONMENTAL LAWS" means any and all
federal, state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decisions, injunctions, decrees, requirements of any
Governmental Entity, any and all common law requirements, rules and bases of
29
36
liability regulating, relating to or imposing liability or standards of conduct
concerning pollution, Hazardous Materials or protection of human health or the
environment, as currently in effect and includes, but is not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. Section 9601 et. seq., the Hazardous Materials Transportation Act 49
U.S.C. Section 1801 et. seq., the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. Section 6901 et. seq., the Clean Water Act, 33 U.S.C.
Section 1251 et. seq., the Clean Air Act., U.S.C. Section et. seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et. seq., the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et. seq., and
the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et. seq., as such laws
have been amended or supplemented, and the regulations promulgated pursuant
thereto, and all analogous state or local statutes. As used in this Agreement,
"ENVIRONMENTAL LIABILITIES" with respect to any Person means any and all
liabilities of or relating to such Person or any of its Subsidiaries (including
any entity which is, in whole or in part a predecessor of such Person or any of
such Subsidiaries), whether vested or unvested, contingent or fixed, actual or
potential, known or unknown, which (i) arise under or relate to matters covered
by Environmental Laws and (ii) relate to actions occurring or conditions
existing on or prior to the Closing Date. As used in this Agreement, "HAZARDOUS
MATERIALS" means any hazardous or toxic substances, materials or wastes,
defined, listed, classified or regulated as such in or under any Environmental
Laws which includes, but is not limited to, petroleum, petroleum products,
friable asbestos, urea formaldehyde and polychlorinated biphenyls.
SECTION 5.17. KNSD Financial Statements. Schedule 5.17 contains (a) the
unaudited balance sheet, statement of cash flow and related income statement of
the KNSD Business as of and for the fiscal year ended December 31, 1996 (the
"YEAR-END STATEMENTS") and (b) the unaudited interim balance sheet, statement of
cash flow and related income statement of the Business as of and for the
nine-month period ended September 30, 1997 (the "INTERIM STATEMENTS" and
collectively with the Year-End Statements, the "FINANCIAL STATEMENTS"). The
Financial Statements have been prepared in accordance with generally accepted
accounting principles, applied consistently with past periods, and present
fairly in all material respects the financial position and results of operations
of the KNSD Business as of and for the periods indicated therein subject, in the
case of the Interim Statements, to normal year-end adjustments.
SECTION 5.18. Employee Arrangements and Benefit Plans. Schedule 5.18
sets forth a complete and correct list of (a) all employee benefit plans within
the meaning of Section 3(3) of ERISA and all bonus or other incentive
compensation, deferred compensation, salary continuation, severance, disability,
30
37
stock award, stock option, stock purchase, tuition assistance, or vacation pay
plans or programs (collectively the "KNSD PLANS") and (b) all written
employment, severance, termination, change-in-control, or indemnification
agreements (collectively, the "KNSD EMPLOYMENT ARRANGEMENTS"), in each case
under which the KNSD Business has any obligation or liability (contingent or
otherwise), except for any KNSD Employment Arrangement which provides for annual
compensation (excluding benefits) of $150,000 or less or has an unexpired term
of and can be terminated (before, on or after a change in control) in less than
one year from the date hereof without additional cost or penalty.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF LIN-TEXAS
LIN-Texas represents and warrants to each of the other parties hereto
as of the date hereof that:
SECTION 6.01. Partnership Existence and Power. LIN-Texas is a
partnership duly organized, validly existing and in good standing under the laws
of its jurisdiction of formation and has all partnership powers and all
governmental licenses, authorizations, permits, consents and approvals required
to carry on its business as now conducted.
SECTION 6.02. Partnership Authorization. The execution, delivery and
performance by LIN-Texas and LIN-TV of the Transaction Documents to which they
are a party and the consummation of the Contemplated Transactions (to the extent
they are participants therein) are within LIN-Texas's and each such Affiliate's
powers and have been duly authorized by all necessary action. This Agreement
constitutes, and the other Transaction Documents to which LIN-Texas and its
Affiliates are parties, when executed by LIN-Texas and such Affiliates, will
constitute (assuming the due authorization and execution of the other parties
thereto) valid and binding agreements of LIN-Texas and such Affiliates.
SECTION 6.03. Governmental Authorization. The execution, delivery and
performance by LIN-Texas and LIN-TV of the Transaction Documents to which they
are parties and the consummation of the Contemplated Transactions (to the extent
they are participants therein) require no action by or in respect of, or filing
with, any Governmental Entity, other than (i) compliance with any applicable
requirements of the 1934 Act; and (ii) compliance with the Communications Act.
31
38
SECTION 6.04. Noncontravention. The execution, delivery and performance
by LIN-Texas and LIN-TV of the Transaction Documents to which they are parties
and the consummation of the Contemplated Transactions (to the extent they are
participants therein) do not and will not (i) violate the partnership agreement
under which it operates or the organizational documents of LIN-TV, as the case
may be, or (ii) assuming compliance with the matters referred to in Section
6.03, violate any applicable law, rule, regulation, judgment, injunction, order
or decree.
SECTION 6.05. Litigation. Except as set forth in Schedule 6.05, there
is no action, suit, investigation or proceeding (or any basis therefor) pending
against, or to the knowledge of LIN-Texas, threatened against or affecting
LIN-Texas or LIN-TV, before any arbitrator or any Governmental Entity which (i)
as of the date of this Agreement, questions the validity of any Transaction
Document or any action to be taken by LIN-Texas or LIN-TV in connection with the
consummation of the Contemplated Transactions or (ii) as of the date of this
Agreement, would prevent or result in a material delay of the consummation of
the Contemplated Transactions. As of the date hereof, neither Lin-Texas nor
LIN-TV nor any of their respective properties is or are subject to any order,
writ, judgment, injunction, decree, determination or award which would prevent
or result in a material delay of the consummation of the Contemplated
Transactions.
SECTION 6.06. Finders' Fees. Except for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.
and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., whose fees will be paid by LIN-Texas or LIN-TV,
there is no investment banker, broker, finder or other intermediary which has
been retained by or is authorized to act on behalf of LIN-Texas or LIN-TV who
might be entitled to any fee or commission in connection with the Contemplated
Transactions.
ARTICLE 7
COVENANT OF RANGER
Ranger agrees that:
SECTION 7.01. Merger Agreement Amendments and Waivers. Ranger will not
(a) agree to (i) the amendment of any of (A) Sections 3.1, 4.1, 4.2, 4.6, 5.3,
5.4, 5.5, 6.1, 6.2, 7.1, 7.5 or 7.6 of the Merger Agreement or (B) the
Disclosure Schedules to the Merger Agreement or (ii) waive any inaccuracies in
the representations and warranties, or compliance with any of the agreements or
32
39
conditions contained in the Merger Agreement or (b) terminate, or agree to
terminate, the Merger Agreement, unless in each case Ranger shall have first
obtained NBC's prior written consent.
ARTICLE 8
COVENANT OF NBC
NBC agrees that:
SECTION 8.01. Conduct of the KNSD Business. From the date hereof until
the Funding Date, NBC and its Affiliates shall conduct the KNSD Business in the
ordinary course consistent with past practice and shall use its reasonable
efforts to preserve intact the business organizations and relationships with
third parties and to keep available the services of the present employees of the
KNSD Business. Without limiting the generality of the foregoing, from the date
hereof until the Funding Date, NBC and its Affiliates will not:
(a) with respect to the KNSD Business acquire a material amount of
assets (whether by merger, stock purchase or otherwise) from any other Person;
(b) sell, lease or otherwise dispose of, or mortgage, or otherwise
encumber or subject to a Lien, other than Permitted Liens, any material KNSD
Assets except (i) pursuant to existing contracts or commitments and (ii) in the
ordinary course consistent with past practice;
(c) with respect to the KNSD Business, incur or assume any material
indebtedness for borrowed money or guarantee any such indebtedness of another
Person, or make any material loans, advances or capital contributions to, or
material investments in, any other Person;
(d) agree or commit to do any of the foregoing; or
(e) take or agree or commit to take any action that would make any
representation or warranty of NBC hereunder inaccurate in any respect at, or as
of any time prior to, the Funding Date.
33
40
ARTICLE 9
OTHER COVENANTS
Each of the parties hereto agrees that:
SECTION 9.01. Access to Information. (a) From the date hereof until the
Funding Date, LIN-TV and LIN-Texas will (i) give NBC and the Lender, and their
respective counsel, financial advisors, auditors and other authorized
representatives full access to the offices, properties, books and records of
such parties relating to the KXAS Business, (ii) furnish to NBC and the Lender,
and their respective counsel, financial advisors, auditors and other authorized
representatives such financial and operating data and other information relating
to the KXAS Business as such Persons may reasonably request and (iii) instruct
their respective employees, counsel and financial advisors to cooperate with NBC
and the Lender in their respective investigations of the KXAS Business. Any
investigation pursuant to this Section shall be conducted in such manner as not
to interfere unreasonably with the conduct of the business of LIN-TV and LIN-
Texas. Notwithstanding the foregoing, neither NBC nor the Lender shall have
access to personnel records of LIN-TV and LIN-Texas relating to individual
performance or evaluation records, medical histories or other information which
in any of such party's good faith opinion is sensitive or the disclosure of
which could subject such party to risk of liability. No investigation by NBC or
the Lender or other information received by NBC or the Lender shall operate as a
waiver or otherwise affect any representation, warranty or agreement given or
made by any other party under any of the Transaction Documents.
(b) From the date hereof until the Funding Date, NBC and its
Affiliates will (i) give Ranger and its financing sources, and their respective
counsel, financial advisors, auditors and other authorized representatives full
access to the offices, properties, books and records of NBC and its Affiliates
relating to the KNSD Business, (ii) furnish to Ranger and its financing sources,
and their respective counsel, financial advisors, auditors and other authorized
representatives such financial and operating data and other information relating
to the KNSD Business as such Persons may reasonably request and (iii) instruct
their respective employees, counsel and financial advisors to cooperate with
Ranger and its financing sources in their respective investigations of the KNSD
Business. Any investigation pursuant to this Section shall be conducted in such
manner as not to interfere unreasonably with the conduct of the business of NBC
and its Affiliates or the KNSD Business. Notwithstanding the foregoing, neither
Ranger nor its financing sources shall have access to personnel records of NBC
or any Affiliates relating to individual performance or evaluation records,
medical histories or other information which in such party's good faith opinion
is sensitive or the disclosure of which could subject such party to risk of
liability. No investigation by Ranger
34
41
or its financing sources or other information received by Ranger or its
financing sources shall operate as a waiver or otherwise affect any
representation, warranty or agreement given or made by any other party under any
of the Transaction Documents.
SECTION 9.02. Notices of Certain Events. Each party hereto shall
promptly, but in any event within 1 Business Day, notify the other parties
hereto of:
(a) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
Contemplated Transactions;
(b) any notice or other communication from any Governmental Entity in
connection with or affecting the Contemplated Transactions;
(c) any Actions commenced or, to its knowledge threatened against,
relating to or involving or otherwise affecting any Business that, if pending on
the date of this Agreement, would have been required to have been disclosed
pursuant to Section 4.05, 5.05 or 6.05, as the case may be, or that relate to
the consummation of the Contemplated Transactions; and
(d) (i) the occurrence, or failure to occur, of any event of which it
becomes aware that has caused or that could be reasonably expected to cause any
representation or warranty of any party contained in any Transaction Document to
be untrue or inaccurate at any time from the date hereof to the Closing Date,
(ii) the failure of any party to any of the Transaction Documents or any
officer, director, employee or agent thereof, to comply with or satisfy in any
material respect any covenant, condition or agreement to be complied with or
satisfied by it under the Transaction Documents and (iii) the receipt or giving
of any notice under the Merger Agreement; provided that no such notification(s)
shall affect the representations or warranties or other rights of such parties
or the conditions to their respective obligations under the Transaction
Documents.
SECTION 9.03. Reasonable Best Efforts; Further Assurances. (a) Subject
to the terms and conditions of this Agreement, each of the parties hereto will
use its reasonable best efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary or desirable under applicable
laws and regulations to consummate the Contemplated Transactions. Each of the
parties hereto agrees to execute and deliver such other documents, certificates,
agreements and other writings and to take such other actions as may be necessary
or desirable in order to consummate or implement expeditiously the
35
42
Contemplated Transactions and to vest in the relevant Business Transferee good
and marketable title to the relevant Contributed Assets.
(b) Each Business Transferor hereby constitutes and appoints,
effective as of the Funding Date (or the Closing Date in the case of any
Business Transfer to occur on such date), the relevant Business Transferee(s)
and their respective successors and assigns as the true and lawful attorney of
such Business Transferor with full power of substitution in the name of the
relevant Business Transferee(s), or in the name of such Business Transferor but
for the benefit of the relevant Business Transferee(s), (i) to collect for the
account of the relevant Business Transferee(s) any items of the relevant
Contributed Assets and (ii) to institute and prosecute all proceedings which the
relevant Business Transferee(s) may in its sole discretion deem proper in order
to assert or enforce any right, title or interest in, to or under the relevant
Contributed Assets, and to defend or compromise any and all actions, suits or
proceedings in respect of the relevant Contributed Assets. Each Business
Transferee shall be entitled to retain for its own account any amounts collected
pursuant to the foregoing powers, including any amounts payable as interest in
respect thereof.
SECTION 9.04. Certain Filings. Each of the parties hereto shall
cooperate with one another (i) in determining whether any action by or in
respect of, or filing with, any Governmental Entity, is required, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any material contracts, in connection with the consummation of the
Contemplated Transactions and (ii) in taking such actions or making any such
filings, furnishing information required in connection therewith and seeking to
obtain any such actions, consents, approvals or waivers in a timely manner.
SECTION 9.05. Public Announcements. The parties agree to consult with
each other before issuing any press release or making any public statement with
respect to the Transaction Documents or the Contemplated Transactions and,
except as may be required by applicable law or any listing agreement with any
national securities exchange, will not issue any such press release or make any
such public statement prior to such consultation.
SECTION 9.06. WARN Act. The parties agree to cooperate in good faith to
determine whether any notification may be required under the Worker Adjustment
and Retraining Notification Act (the "WARN ACT") as a result of the Contemplated
Transactions and, if such notices are required, to provide such notice in a
manner that is reasonably satisfactory to each of the parties hereto.
36
43
SECTION 9.07. Certain Capital Expenditures in Respect of the KXAS
Business. In respect of the KXAS Business, LIN-TV hereby agrees (a) prior to the
Funding Date, (i) to purchase new DVC Pro news gathering and editing equipment
at a cost to LIN-TV of at least $750,000, (ii) to pay for the purchase and
installation of a new digital antenna and transmission line at a cost to LIN-TV
of at least $564,375, and (iii) to pay to NBC $1,532,188 less the documented
amounts actually expended by LIN-TV under (i) and (ii) above as of the Closing
Date, provided that in no event shall NBC be obligated to pay any amounts to
LIN-TV by virtue of this Section 9.03(a) and (b) that each of such assets shall
be deemed to be KXAS Assets. In respect of the KXAS Business, NBC hereby agrees
that it will reimburse LIN-TV for the sum of (x) any documented amounts paid
prior to the Closing Date towards the purchase of a new digital transmitter
which will be delivered to the LP on behalf of the KXAS Business by LIN-TV and
which will, upon delivery and the payment by the LP of any remaining balance in
respect thereof, be deemed a KXAS Asset plus (y) $150,000.
ARTICLE 10
TAX MATTERS
SECTION 10.01. Tax Representations. NBC represents and warrants, with
respect to the KNSD Business and the KNSD Assets, that (a) Outlet has timely
filed with the appropriate taxing authorities all material Tax Returns required
to be filed by Outlet and any such material Tax Returns required to be filed on
or prior to the Closing Date (except those under valid extension) will be timely
filed and all such Tax Returns are and will be true and correct in all material
respects, (b) all Taxes shown to be due on the Tax Returns described in (a)
above have been timely paid or adequately reserved for in accordance with
generally accepted accounting principles (except to the extent that such Taxes
are being contested in good faith) and (c) there are no material liens for Taxes
(other than for Taxes not yet due and payable) on any KNSD Assets.
SECTION 10.02. Excluded or Assumed Liabilities. Except as otherwise
provided in this Article 10, Taxes with respect to Pre-Closing Tax Periods shall
constitute Excluded Liabilities.
SECTION 10.03. Tax Allocations.
(a) For purposes of this Agreement, income, deductions, and other
items will be allocated between the final Pre-Closing Tax Period and the initial
Post-Closing
37
44
Tax Period based on an actual closing of the books of KXAS Business and the KNSD
Business at the close of business on the date of the relevant Business Transfer.
Any items attributable to transactions not in the ordinary course of business at
or prior to the transfer of the KXAS Assets or the KNSD Assets, as the case may
be, will be allocated to the final Pre-Closing Tax Period, and any items
attributable to transactions not in the ordinary course of business after such
transfer will be allocated to the initial Post-Closing Tax Period.
(b) Any liability for real property tax, personal property tax or any
similar ad valorem obligation levied with respect to any KXAS Asset or KNSD
Asset for a Post-Closing Tax Period that includes the Funding Date or the
Closing Date, as the case may be, will be apportioned ratably based on the
number of days of such taxable period included in the Pre-Closing Tax Period and
the number of days of such taxable period in the Post-Closing Tax Period.
(c) Any recording or filing fees with respect to the transfers of the
KXAS Assets or the KNSD Assets, and any transfer, documentary, sales, use or
other Taxes assessed upon or with respect to such transfers, will be the
responsibility of and paid by NBC and/or its Affiliates.
SECTION 10.04. Tax Cooperation and Consistent Reporting. The parties
agree to furnish or cause to be furnished to each other, upon request, as
promptly as practicable, such information and assistance relating to the KXAS
Assets and KXAS Business and KNSD Assets and KNSD Business as is reasonably
necessary for the preparation and filing of Tax Returns, the making of any
election related to Taxes, the preparation for any audit by any taxing
authority, or the prosecution or defense of any claim, suit or proceeding
relating to any Tax Return. The parties will cooperate with each other in the
conduct of any audit or other proceeding related to Taxes and all other Tax
Matters relating to the KXAS Business or the KNSD Business.
SECTION 10.05. Preparation of Tax Returns. Each of the parties shall be
responsible for causing the preparation and filing of Tax Returns relating to
its Business during the relevant party's period of ownership.
38
45
ARTICLE 11
EMPLOYEE BENEFITS
SECTION 11.01. Employees. The parties hereto agree that they will
cooperate and use all commercially reasonable efforts to cause employees of the
KXAS Business to physically report to work on the Closing Date or as soon
thereafter as is practicable. NBC shall offer employment as of the Closing Date
to each individual who is an employee of the KXAS Business immediately prior to
the Closing Date and physically reports to work on the Closing Date or, if
absent from work on the Closing Date solely by reason of vacation or regularly
scheduled non-working days, on the day immediately following such vacation or
days off. Each such employee shall be offered employment with NBC in a position
similar to his or her position immediately prior to the Closing Date. NBC shall
also offer employment to each individual who is an employee of the KXAS Business
immediately prior to the Closing Date but is absent from work on the Closing
Date for any reason other than vacation or regularly scheduled days off. Each
such employee shall be offered employment with NBC in a position similar to such
employee's last position with the KXAS Business as of the date such employee
physically returns to work duty. Each employee of the KXAS Business who is
actively at work with the KXAS Business as of the Closing Date or returns to
active work duty with the KXAS Business from an authorized leave of absence
after the Closing Date shall hereinafter be referred to as a "KXAS TRANSFERRED
EMPLOYEE", and the first date on which each such KXAS Transferred Employee is
actively at work with the KXAS Business on or after the Closing Date shall
hereinafter be referred to as the "TRANSFER DATE" with respect to such KXAS
Transferred Employee. Notwithstanding anything to the contrary contained herein,
unless otherwise provided under the terms of a written employment or collective
bargaining agreement, each KXAS Transferred Employee shall be employed by NBC on
an at will basis and nothing shall prohibit NBC from terminating such employment
at any time after the Closing. Each individual who is an employee of the KXAS
Business immediately prior to the Closing Date but is not employed by NBC on the
Closing Date ("RETAINED EMPLOYEES") shall be continued as an employee of
LIN-Texas or its affiliate ("LIN EMPLOYER") until such employee's termination of
employment with LIN- Texas and its Affiliates in accordance with the policies
and practice of such LIN Employer as of the date hereof. LIN Employer shall
provide Retained Employees during their employment with LIN Employer all
benefits and protections ordinarily provided by LIN Employer to similarly
situated employees pursuant to its plans, policies and practices substantially
as in effect as of the date hereof.
SECTION 11.02. Continuation of Benefits. During the period from the
Closing Date until January 1, 2000, NBC shall maintain or cause to be maintained
wages, compensation levels, employee pension and welfare plans for the benefit
of the KXAS Transferred Employees, which in the aggregate are equal or greater
39
46
than those wages, compensation levels and other benefits provided to such KXAS
Transferred Employees on the date of execution of the Merger Agreement.
SECTION 11.03. Severance Arrangements and Employment Agreements. (a)
With respect to any KXAS Transferred Employee who is covered by a severance
compensation agreement, employment agreement or other severance policy or plan
separate from the standard severance policy for the employees of LIN-TV or any
of its Subsidiaries, NBC shall maintain or cause to be maintained such severance
compensation agreement, employment agreement or other separate policy or plan as
in effect as of the date of execution of the Merger Agreement (except as may be
otherwise agreed by such KXAS Transferred Employee), and as to all other KXAS
Transferred Employees, NBC shall maintain or cause to be maintained severance
benefits at least as favorable as those provided under the standard severance
policy of LIN-TV and its Subsidiaries applicable to employees of the KXAS
Business as in effect as of the date of execution of the Merger Agreement until
January 1, 2000.
(b) NBC shall honor or cause to be honored all severance agreements
and employment agreements with any KXAS Transferred Employees.
SECTION 11.04. Bonus Arrangements. NBC shall maintain or cause to be
maintained the bonus practices of LIN-TV and its Subsidiaries as applicable to
KXAS Transferred Employees, as in effect on the date of execution of the Merger
Agreement, through the end of the 1998 fiscal year, with bonuses to be paid to
the KXAS Transferred Employees participating thereunder at levels consistent
with past practice.
SECTION 11.05. Welfare Plans. NBC shall (i) waive or cause to be
waived all limitations as to preexisting conditions, exclusions and waiting
periods with respect to participation and coverage requirements applicable to
the KXAS Transferred Employees under any welfare plan that such employees may
be eligible to participate in after the Closing Date and (ii) provide or cause
to be provided to each KXAS Transferred Employee credit for any co-payments and
deductibles paid prior to the Closing Date in satisfying any applicable
deductible or out-of-pocket requirements under any welfare plans that such
employees are eligible to participate in after the Closing Date.
SECTION 11.06. Employee Liabilities. (a) From and after the Closing
Date, the liabilities with respect to employees and former employees of the KXAS
Business, including liabilities associated with any domestic partner, dependent
or beneficiary of any such employee or former employee (collectively,
40
47
"EMPLOYMENT-RELATED LIABILITIES") shall be divided between Ranger and NBC as
provided in this Section 11.06.
(b) Ranger shall maintain or cause an Affiliate to maintain in effect
at least until the Closing Date insurance policies relating to workers'
compensation, life insurance, long-term disability and accidental death and
dismemberment benefits with respect to current or former employees of the KXAS
Business ("INSURED BENEFITS") providing at least the same coverage in all
material respects as is currently in effect as of the date hereof (subject to
individual employee elections (if applicable) in accordance with the terms of
such benefits as in effect on the date hereof). Ranger shall maintain or cause
an Affiliate to maintain on and after the Closing Date with respect to Retained
Employees insurance policies providing (i) Insured Benefits which, at Ranger's
election, are the same in all material respects as in effect as of the date
hereof or the same as in effect for similarly situated employees of Ranger and
its Affiliates and (ii) a stop loss limit of $175,000 for each individual with
respect to his or her medical claims during any policy year as in effect in all
material respects on the date hereof; provided, however, that if no such
stop-loss insurance policy is in effect as of the date hereof Ranger shall
procure such a policy, at its sole expense, with terms of coverage satisfactory
to NBC. Ranger or its appropriate Affiliate (e.g., LIN-Texas) may reasonably
enter into or obtain insurance coverage with respect to employee benefits other
than Insured Benefits applicable to all similarly situated employees of Ranger
or such Affiliate. Ranger or its Affiliate, if applicable, shall retain on and
after the Closing Date as its sole property all insurance policies,
administrative service contracts and trust agreements relating to Insured
Benefits and all reserves and retention amounts held in connection herewith.
(c) Ranger shall be solely liable for (i) all claims with respect to
Insured Benefits and other employee benefits covered under an applicable
insurance policy incurred prior to the Closing Date to the extent covered or
required to be covered by an insurance policy maintained by Ranger or its
Affiliate (and all costs and expenses relating to such claims), (ii) claims
incurred prior to the Closing Date for dental, medical, prescription drug or
other health benefits covered under the plans, policies and practices applicable
prior to the Closing Date to current or former employees of the KXAS Business,
(iii) claims incurred on and after the Closing Date for dental, medical,
prescription drug or other health benefits with respect to (A) each former
employee of the KXAS Business who terminates employment with the KXAS Business
on or prior to the Closing Date and (B) each Retained Employee (whether or not
such Retained Employee becomes a KXAS Transferred Employee after the Closing
Date), in each case to the extent, and only to the extent, that (x) such claims
are covered under the plans, policies and practices of LIN-TV or its Affiliate
applicable to such individuals and (y) the aggregate amount
41
48
of all such claims incurred at any time on and after the Closing Date exceed
$175,000 for any such individual, (iv) all claims with respect to Insured
Benefits and other employee benefits covered under an applicable insurance
policy incurred with respect to an employee of the KXAS Business on or after the
Closing Date through the date of such employee's termination of employment with
Ranger and its Affiliates (or, if applicable, the last day of the calendar month
on or immediately after such termination date) to the extent covered or required
to be covered by an insurance policy maintained by Ranger or its Affiliate (and
all costs and expenses relating to such claims) and (v) all damage, loss,
liability and expense (including, without limitation, reasonable expenses of
investigation and reasonable attorneys' fees) arising from or in connection with
the foregoing clauses (i) through (iv) of this sentence.
(d) Except as provided in the preceding paragraph, NBC shall indemnify
and hold harmless Ranger from and against all damage, loss, liability and
expense (including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees) arising from or in connection with Employment-
Related Liabilities, including, but not limited to, (i) compensation and
benefits payable to, and insurance premiums for coverage of, Retained Employees
on and after the Closing Date through their date of termination of employment
with Ranger and its Affiliates, (ii) all claims arising from or in connection
with the collective bargaining agreement covering employees of the KXAS Business
(including all costs incurred in connection with negotiations, if any, with the
union on the effect of the manner in which NBC assumes such agreement or extends
employment to persons covered by such agreement) and (iii) claims arising in
connection with the termination of employment of Retained Employees in
accordance with the provisions of this Article 11.
(e) For purposes of this Section, a claim in respect of dental,
medical, prescription drug or other health benefits shall be deemed to be
incurred as of the date that the dental, medical, prescription drug or other
health care or drugs (including any related devices or medications) are provided
or procured, and a claim in respect of workers' compensation or long-term
disability benefits shall be deemed to be incurred as of the date of the
accident, injury or other events giving rise to the condition forming the basis
of such claim or disability.
SECTION 11.07. Defined Contribution Plan. (a) Prior to the Closing
Date, Ranger shall take or cause to be taken all actions necessary to provide
that each employee of the KXAS Business is fully (100%) vested in all amounts
credited to the KXAS Transferred Employee's account under each KXAS DC Plan.
42
49
(b) As soon as practicable following the Closing Date, NBC shall adopt
or designate one or more defined contribution plans (as defined in Section 3(34)
of ERISA) intended to meet the requirements of Section 401(a) of the Code (each
an "NBC DC PLAN"), the terms of which shall be determined in the sole discretion
of NBC or an NBC Affiliate designated by NBC, subject to its obligation under
Section 11.02. To the extent permitted by ERISA and the Code, Ranger shall take
or cause to be taken all actions necessary to permit the distribution and
rollover, or the direct transfer (under Code Section 401(a)(31)), of the account
balance of each KXAS Transferred Employee under each KXAS DC Plan to an NBC DC
Plan designated by NBC; provided, however, that each NBC DC Plan shall be
required to accept such rollovers or transfers only to the extent that they are
made in cash, and shall not be required to accept rollovers or transfers of
participant loan notes, securities or other in-kind assets.
(c) The parties hereto shall cooperate and take all actions reasonably
necessary or appropriate to: (i) effectuate the rollovers and transfers
described herein; (ii) at the request of NBC, assure that for a period of up to
one year following the Closing Date any participant loans taken by any KXAS
Transferred Employee under any pension plans (as defined in Section 3(2) of
ERISA) are not called due or deemed distributions by reason of the transactions
contemplated herein or by reason of any termination or deemed termination of
employment of any such KXAS Transferred Employee as a result of the transactions
contemplated herein; and (iii) share information necessary to each party to
effectuate the foregoing.
SECTION 11.08. Defined Benefit Plans. (a) Prior to the Closing Date,
Ranger shall take or cause to be taken all action necessary to provide that each
employee of the KXAS Business who participates in any defined benefit plan (as
defined in Section 3(35) of ERISA) maintained by LIN-Texas or any Affiliate of
LIN-Texas prior to the Closing Date (other than a multiemployer plan as defined
in Section 4001(a)(3) of ERISA) (each a "KXAS DB PLAN") is fully (100%) vested
in all benefits accrued by such employee under each such KXAS DB Plan as of the
Closing Date.
SECTION 11.09. Multiemployer Pension Plans. (a) To avoid the imposition
of any withdrawal liability on any of the parties hereto, NBC shall (i)
contribute or cause to be contributed to each multiemployer plan (as defined in
section 4001(a)(3) of ERISA) covering any current or former employee of the KXAS
Business (a "MULTIEMPLOYER PLAN") for substantially the same number of
contribution base units for which LIN-TV and its Affiliates have an obligation
to contribute in respect of such employees prior to the Closing Date; (ii)
provide to each Multiemployer Plan for a period of five plan years commencing
with the first
43
50
plan year beginning after the Closing Date, a bond issued by a corporate surety
corporation, or, in a manner sufficient to avoid the imposition of withdrawal
liability, a sum to be held in escrow, or an irrevocable letter of credit, in
each case issued by a bank or similar financial institution, equal to the
greater of the average annual contribution required to be made by LIN-TV and its
Affiliates under each Multiemployer Plan for the three plan years preceding the
plan year in which the Closing Date occurs or the annual contribution that
LIN-TV and its Affiliates were required to make under each Multiemployer Plan
for the last plan year prior to the plan year in which the Closing Date occurs,
in each case in respect of current and former employees of the KXAS Business, or
shall obtain a waiver of the requirements to provide any of the foregoing or
shall comply with alternatives acceptable to any Multiemployer Plan, in order to
ensure compliance with Section 4204 of ERISA. If at any time during the first
five plan years beginning after the Closing Date, NBC withdraws from, or fails
to make or cause to be made a required contribution to, one of the Multiemployer
Plans, the bond, escrow, or letter of credit obtained with respect to such
Multiemployer Plan, if any, shall be paid to such Multiemployer Plan.
(b) Notwithstanding any other provision hereof, the obligations of
NBC under this Section 11.09 are limited to the extent necessary to comply with
Section 4204 of ERISA. If NBC effects a complete or partial withdrawal from a
Multiemployer Plan during the first five plan years following the Closing Date
and NBC fails to make any withdrawal liability payment to the Multiemployer Plan
when due, then Ranger shall be secondarily liable to the Multiemployer Plan for
any unpaid withdrawal liability to the extent that Ranger would have incurred
such liability following the Closing Date had the LP not agreed to the
provisions of this Section. Ranger's obligations set forth in this paragraph
shall continue with respect to events that occurred prior to the last day of the
five plan year period referred to in this Section 11.09 (regardless of when
notice of such liability is received by any party). Each party hereto shall
promptly notify all other parties of any demand for payment of withdrawal
liability received with respect to any Multiemployer Plan within five years from
the Closing Date. The parties hereto agree to take all such further action as
may be necessary to satisfy the sale of assets exception requirements set forth
in Section 4204 of ERISA.
SECTION 11.10. Past Service Credit. NBC agrees that, with respect to
all of the employee benefit programs and arrangements covering or otherwise
benefitting any of the KXAS Transferred Employees on or after the Closing Date,
service with LIN-TV or any of its Subsidiaries shall be included solely for
purposes of determining any period of eligibility to participate or to vest in
benefits under such programs and arrangements (but not for benefit accrual or
any other purpose under such programs or arrangements).
44
51
ARTICLE 12
CONDITIONS TO CLOSINGS
SECTION 12.01. Conditions to Closing the Funding Date Transactions.
(a) Conditions to Funding Date Obligations of Each Party. The
obligations of each party to consummate the Funding Date Closing are subject to
the satisfaction of the following conditions:
(i) No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation
of any of the Contemplated Transactions.
(ii) All actions by or in respect of or filings with any
Governmental Entity that are required to permit the consummation of
all of the Contemplated Transactions shall have been taken, made or
obtained, including final approval by the FCC of the FCC Applications;
provided that, if the FCC has granted approval of, but such approval
is not yet final with respect to (i) the FCC Form 314 or the FCC Form
316 with respect to the Business Transfers of the KXAS Business or
(ii) the FCC Form 316 with respect to the Business Transfer of the
KNSD Business, then NBC, with respect to the KXAS Business, and
Ranger, with respect to the KNSD Business, shall have the unilateral
right to waive this Section 12.01(a)(ii) as a condition to the Funding
Date Closing with respect to the receipt of any such final approval.
For purposes of this Agreement, FCC approval of the FCC Applications
shall be deemed to be final if the FCC has taken action approving the
transfer or assignment of the FCC Authorizations for the operation of
the KXAS Business and the KNSD Business, pursuant to the Business
Transfers, which has not been reversed, stayed, enjoined, set aside,
annulled or suspended, with respect to which no timely request for
stay, petition for reconsideration or appeal or sua sponte action of
the FCC with comparable effect is pending and as to which the time for
filing any such request, petition or appeal or for the taking of any
such sua sponte action by the FCC has expired.
(iii) Each of the parties hereto shall have received copies of
the Funding Date Transaction Documents duly executed by each of the
parties thereto.
45
52
(iv) (A) The LLC shall have obtained at its sole cost an ALTA
extended coverage form of owner's or leasehold owner's title insurance
policies, or binders to issue the same, dated the Funding Date and in
amounts satisfactory to the LLC committing to insure, at ordinary
premium rates without any requirement for additional premiums, good
and marketable title to the real property that is owned or leased by
or to each Business Transferor and that is part of the Contributed
Assets free and clear of any Liens, except for Permitted Liens and (B)
any easements necessary for the use by the LLC of such real property
shall have been obtained by the LLC.
(v) Ranger shall have delivered the Venture Notice.
(b) Conditions to Funding Date Obligations of NBC. The obligation of
NBC to consummate the Funding Date Closing is subject to the satisfaction of the
following further conditions:
(i) (A) Each of the other parties to the Transaction Documents
shall have performed in all material respects all of its obligations
under the Transaction Documents required to be performed by it on or
prior to the Funding Date, (B) the representations and warranties of
such parties contained in each of the Transaction Documents and in any
certificate or other writing delivered by such parties pursuant
thereto, disregarding all qualifications and exceptions contained
therein relating to materiality or Material Adverse Effect (as and if
defined in each Transaction Document) or any similar standard or
qualification, shall be true at and as of the Funding Date, as if made
at and as of such date with only such exceptions as would not in the
aggregate reasonably be expected to have a Material Adverse Effect on
the KXAS Business and (C) NBC shall have received a certificate signed
by an executive officer of each such party to the foregoing effect.
(ii) There shall not be threatened, instituted or pending any
action or proceeding brought by or on behalf of any Governmental
Entity (A) seeking to restrain, prohibit or otherwise interfere with
the ownership or operation by any Business Transferee or any of its
Affiliates of all or any material portion of the relevant Contributed
Assets or to compel such Business Transferee or any of its Affiliates
to dispose of all or any material portion of the relevant Contributed
Assets or of its other assets or (B) seeking to require divestiture by
such Business Transferee or any of its Affiliates of any of the
relevant Contributed Assets or of any of its other assets.
46
53
(iii) There shall not be any action taken, or any statute, rule,
regulation, injunction, order or decree proposed, enacted, enforced,
promulgated, issued or deemed applicable to the transfer of the
Contributed Assets, by any Governmental Entity, that, in the
reasonable judgment of NBC could, directly or indirectly, result in
any of the consequences referred to in clauses 12.01(b)(ii)(A) or
12.01(b)(ii)(B) above.
(iv) NBC shall have received an opinion of Weil, Gotshal & ▇▇▇▇▇▇
LLP, counsel to Ranger, dated the Funding Date to the effect specified
in Sections 4.01, 4.02, 4.03, 4.04 and, to such counsel's knowledge,
4.05. In rendering such opinion, such counsel may rely upon
certificates of public officers, as to matters governed by the laws of
jurisdictions other than New York, Delaware or the federal laws of the
United States of America, upon opinions of counsel reasonably
satisfactory to NBC, and, as to matters of fact, upon certificates of
officers of Ranger, copies of which opinions and certificates shall be
contemporaneously delivered to NBC.
(v) The parties to the Funding Date Transaction Documents shall
have received (A) all Required Consents with respect to the KXAS
Business and (B) all consents, authorizations or approvals from the
governmental agencies referred to in Section 4.03, 5.03 or 6.03, in
each case in form and substance reasonably satisfactory to NBC, and no
such consent, authorization or approval shall have been revoked.
(vi) NBC shall have received all documents it may reasonably
request relating to the existence of each of the other parties hereto
and the authority of such parties for the Transaction Documents, all
in form and substance reasonably satisfactory to NBC.
(c) Conditions to Funding Date Obligations of Ranger. The obligation
of Ranger to consummate the Funding Date Closing is subject to the satisfaction
of the following further conditions:
(i) (A) Each of the parties to the Transaction Documents shall
have performed in all material respects all of its obligations under
the Funding Date Transaction Documents required to be performed by
such parties at or prior to the Funding Date, (B) the representations
and warranties of such parties contained in each of the Transaction
Documents and in any certificate or other writing delivered by such
parties pursuant
47
54
thereto, disregarding all qualifications and exceptions contained
therein relating to materiality or Material Adverse Effect (as and if
defined in each Transaction Document) or any similar standard or
qualification, shall be true at and as of the Funding Date, as if made
at and as of such date with only such exceptions as would not in the
aggregate reasonably be expected to have a Material Adverse Effect on
the KNSD Business and (C) Ranger shall have received a certificate
signed by an executive officer of each such party to the foregoing
effect.
(ii) There shall not be threatened, instituted or pending any
action or proceeding brought by or on behalf of any Governmental
Entity (A) seeking to restrain, prohibit or otherwise interfere with
the ownership or operation by any Business Transferee or any of its
Affiliates of all or any material portion of the relevant Contributed
Assets or to compel such Business Transferee or any of its Affiliates
to dispose of all or any material portion of the relevant Contributed
Assets or of its other assets or (B) seeking to require divestiture by
such Business Transferee or any of its Affiliates of any of the
relevant Contributed Assets or of any of its other assets.
(iii) There shall not be any action taken, or any statute, rule,
regulation, injunction, order or decree proposed, enacted, enforced,
promulgated, issued or deemed applicable to the transfer of the
Contributed Assets, by any Governmental Entity, that, in the
reasonable judgment of Ranger could, directly or indirectly, result in
any of the consequences referred to in clauses 12.01(c)(ii)(A) or
12.01(c)(ii)(B) above.
(iv) Ranger shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel to NBC, dated the Funding Date to the effect
specified in Sections 5.01, 5.02, 5.03, 5.04 and, to such counsel's
knowledge, 5.05. In rendering such opinion, such counsel may rely upon
certificates of public officers, as to matters governed by the laws of
jurisdictions other than New York, Delaware or the federal laws of the
United States of America, upon opinions of counsel reasonably
satisfactory to Ranger, and, as to matters of fact, upon certificates
of officers of NBC, copies of which opinions and certificates shall be
contemporaneously delivered to Ranger.
(v) The parties to the Funding Date Transaction Documents shall
have received all KNSD Required Consents and all consents,
authorizations or approvals from governmental agencies referred to in
Section 5.03 or 6.03, in each case in form and substance reasonably
48
55
satisfactory to Ranger, and no such consent, authorization or approval
shall have been revoked.
(vi) Ranger shall have received all documents it may reasonably
request relating to the existence of each of the other parties hereto
and the authority of such parties for the Funding Date Transaction
Documents, all in form and substance reasonably satisfactory to
Ranger.
(d) Conditions to Funding Date Obligations of LIN-Texas. The
obligation of LIN-Texas to consummate the Funding Date Closing is subject to the
satisfaction of the following further conditions:
(i) (A) Each of the other parties to the Transaction Documents
shall have performed in all material respects all of its obligations
under the Transaction Documents required to be performed by it on or
prior to the Funding Date, (B) the representations and warranties of
such parties contained in each of the Transaction Documents and in any
certificate or other writing delivered by such parties pursuant
thereto, disregarding all qualifications and exceptions contained
therein relating to materiality or Material Adverse Effect (as and if
defined in each Transaction Document) or any similar standard or
qualification, shall be true at and as of the Funding Date, as if made
at and as of such date with only such exceptions as would not in the
aggregate reasonably be expected to materially adversely affect the
ability of Ranger to consummate the Merger and (C) LIN-Texas shall
have received a certificate signed by an executive officer of each
such party to the foregoing effect.
(ii) LIN-Texas shall have received all documents it may
reasonably request relating to the existence of each of the other
parties hereto and the authority of such parties for the Transaction
Documents, all in form and substance reasonably satisfactory to
LIN-Texas.
(iii) All of the conditions specified in Section 6.3 of the
Merger Agreement to the obligation of LIN-TV to effect the Merger
shall have been satisfied (or duly waived by LIN-TV), and all of the
transactions contemplated to occur at the closing of the Merger shall
have occurred except the receipt by the Paying Agent of the Merger
Consideration.
SECTION 12.02. Conditions to Closing the Closing Date Transactions.
The obligations of each party to consummate the Closing Date Closing
are subject to the satisfaction of the following conditions:
49
56
(a) (i) Each of the Funding Date Transactions shall have been
consummated, (ii) each of the Funding Date Transaction Documents shall have been
duly executed by each of the parties thereto and (iii) the Effective Time shall
have occurred.
(b) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the Closing Date
Transactions.
(c) Each of the parties hereto shall have received copies of the
Closing Date Transaction Documents duly executed by each of the parties thereto.
ARTICLE 13
SURVIVAL; INDEMNIFICATION
SECTION 13.01. Survival. Except for Section 4.06 and Section 5.06 which
shall survive the Closing Date, the representations and warranties of the
parties hereto contained in this Agreement or in any certificate or other
writing delivered pursuant hereto or in connection herewith shall terminate and
not survive the Closing Date.
SECTION 13.02. Indemnification. (a) Ranger, LIN-TV and LIN-Texas (the
"LIN INDEMNITORS") hereby, jointly and severally, indemnify NBC and its
Affiliates and each of their respective directors, officers, employees and
agents against and agree to hold each of them harmless from any and all damage,
loss, liability and expense (including, without limitation, reasonable expenses
of investigation and reasonable attorneys' fees and expenses in connection with
any action, suit or proceeding) ("DAMAGES") incurred or suffered by such parties
arising out of (i) any misrepresentation or breach of warranty made by Ranger in
Section 4.06 or any covenant or agreement to be performed by the LIN Indemnitors
or any of their Affiliates pursuant to this Agreement and (ii) any Excluded
Liability with respect to the KXAS Business.
(b) NBC hereby indemnifies Ranger and its Affiliates and each of their
respective directors, officers, employees and agents against and agrees to hold
each of them harmless from any and all Damages incurred or suffered by such
parties arising out of (i) any misrepresentation or breach of warranty made by
NBC in Section 5.06 or any covenant or agreement to be performed by NBC or any
of its Affiliates pursuant to this Agreement, other than those of NBC contained
in
50
57
Article 10 of this Agreement and (ii) any Excluded Liability with respect to
the KNSD Business.
SECTION 13.03. Procedures. The party seeking indemnification under
Section 13.02 (the "INDEMNIFIED PARTY") agrees to give prompt notice to the
party against whom indemnity is sought (the "INDEMNIFYING PARTY") of the
assertion of any claim, or the commencement of any suit, action or proceeding in
respect of which indemnity may be sought under such Section. The Indemnifying
Party may at the request of the Indemnified Party participate in and control the
defense of any such suit, action or proceeding at its own expense. The
Indemnifying Party shall not be liable under Section 13.02 for any settlement
effected without its consent of any claim, litigation or proceeding in respect
of which indemnity may be sought hereunder.
ARTICLE 14
TERMINATION AND RESCISSION
SECTION 14.01. Grounds for Termination. This Agreement may be
terminated at any time prior to the Funding Date:
(a) by mutual written agreement of the parties hereto;
(b) by any of the parties hereto if the Funding Date Closing shall not
have been consummated on or before May 1, 1998;
(c) by any of the parties hereto if the Merger Agreement shall have
been terminated by any of the parties thereto, pursuant to Section 7.01 thereof;
and
(d) by any of the parties hereto if there shall be any law or
regulation that makes consummation of the Contemplated Transactions illegal or
otherwise prohibited or if consummation of the Contemplated Transactions would
violate any nonappealable final order, decree or judgment of any Governmental
Entity having competent jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses
14.01(b), 14.01(c) or 14.01(d) shall give prompt notice of such termination to
the other party.
51
58
SECTION 14.02. Effect of Termination. If this Agreement is terminated
as permitted by Section 14.01, such termination shall be without liability of
any party (or any stockholder, director, officer, employee, agent, consultant,
partner or representative of such party) to the other parties to this Agreement;
provided that if such termination shall result from the (i) willful failure of
either party to fulfill a condition to the performance of the obligations of the
other party, (ii) failure to perform a covenant of any of the Transaction
Documents or (iii) breach by either party hereto of any representation or
warranty or agreement contained in any of the Transaction Documents, such party
shall be fully liable for any and all Damages incurred or suffered by the other
party as a result of such failure or breach. The provisions of Sections 15.03,
15.05, 15.06 and 15.07 shall be treated by the parties as a separate continuing
agreement that shall survive any termination of this Agreement pursuant to
Section 14.01 or any rescission of this Agreement pursuant to Section 14.03.
SECTION 14.03. Rescission Rights. (a) Unless the Closing Date
Transactions are consummated within thirty-two hours of the consummation of the
last Funding Date Transaction to have been consummated, then, without further
act or notice by any party or parties hereto, the Funding Date Transactions
shall be rescinded and thereupon the following shall occur:
(i) the LLC and the LP will be unwound, pursuant to the terms of
the LLC Agreement and the LP Agreement, and LIN-Texas will receive the
KXAS Business and Outlet will receive the KNSD Business, in each case
in liquidation of the LLC members' and the LP partners' respective
interests in the LLC and the LP;
(ii) the Venture Loan will accelerate, pursuant to the terms of
the Venture Credit Agreement, and LIN-Texas will (A) repay the Venture
Loan to the Lender without interest and (B) pay to the Lender any
funds that were actually earned by LIN-Texas on the proceeds of the
Venture Loan (without regard to the coupon on the Venture Note), in
each case promptly upon receipt of the KXAS Business by LIN-Texas from
the LLC pursuant to Section 14.03(a)(i);
(iii) Upon repayment of the Venture Loan pursuant to Section
14.03(a)(ii), LIN-TV will be released from the Original Guaranty
pursuant to the terms thereof and the KXAS Lien and the KNSD Lien will
be released and extinguished; and
52
59
(iv) Each of the Funding Date Transaction Documents shall be
terminated and shall have no force and effect against any of the
respective parties thereto.
(b) Each of the parties hereto agrees that, subject to clause (c)
hereof, the intent of this Section 14.03 is to restore each party to the Funding
Date Transactions to the position that each such party would have occupied had
the Funding Date Transactions never occurred and the Funding Date Transaction
Documents never been executed and effective. The parties hereto agree to reflect
all income, gain or loss arising from, or with respect to, any Contributed Asset
or the Venture Loan on any Tax Return of such party and for all other purposes
in a manner that is consistent with this intent, including, without limitation,
(i) ignoring the provisions of Section 10.03 and treating all income, gain or
loss arising on the Funding Date and thereafter from any Contributed Asset as
income, gain or loss of the relevant Business Transferor for all Tax purposes,
(ii) treating any funds that were actually earned with respect to the proceeds
of the Venture Loan (without regard to the coupon on the Venture Note) as income
of the Lender for all Tax purposes, and (iii) treating all of the Funding Date
Transactions as though they had never occurred and the Funding Date Transaction
Documents had never been executed and effective.
(c) (i) In the event of rescission pursuant to this Section 14.03, NBC
hereby indemnifies LIN-TV and its Affiliates and each of their respective
directors, officers, employees and agents (each, a "LIN INDEMNIFIED PERSON")
against and agrees to hold each of them harmless from any and all damage, loss,
liability and expense (including, without limitation, the reasonable fees and
expenses of LIN-TV's accountants, attorneys, brokers and financial and other
advisors) incurred or suffered by any such LIN Indemnified Persons or with
respect to any of their respective properties or assets arising out of the
Funding Date Transactions and any exercise of a party's rights under this
Section 14.03 (collectively, the "RESCISSION DAMAGES"), and that would not have
otherwise been incurred or suffered in connection with LIN-TV's efforts to
consummate the transactions contemplated by the Merger Agreement.
(ii) Any LIN Indemnified Person seeking indemnification under
this Section 14.03(c) shall give prompt notice to NBC of the assertion
of any claim, or the commencement of any audit, suit, action or
proceeding in respect of which indemnity may be sought under this
Section and will provide NBC such information with respect thereto
that NBC may reasonably request. The failure to so notify NBC shall
not relieve NBC of its obligations hereunder, except to the extent
such failure shall have adversely prejudiced NBC. With respect to
claims for Taxes, LIN-TV shall
53
60
initially be responsible for providing documents requested by any
Taxing authority in any audit of its Tax Returns for the Pre-Closing
Tax Period that includes the Funding Date and, after giving notice of
such request for documents to NBC, shall, if consented to by NBC,
handle any such audit until there is reason to believe that an audit
adjustment in respect of Rescission Damages may be proposed. NBC shall
control the defense of any Claim asserted by any third party ("THIRD
PARTY CLAIM"), including without limitation the control and
appointment of lead counsel for such defense, in each case at its
expense. NBC shall obtain the prior written consent of the relevant
LIN Indemnified Person(s) (which shall not be unreasonably withheld)
before entering into any settlement of such Third Party Claim, if the
settlement does not release the relevant LIN Indemnified Person(s)
from all liabilities and obligations with respect to such Third Party
Claim or the settlement imposes injunctive or other equitable relief
against the relevant LIN Indemnified Person(s) and such LIN
Indemnified Person(s) shall be entitled to participate in the defense
of such Third Party Claim and to employ separate counsel of its choice
for such purpose. The fees and expenses of such separate counsel shall
be paid by such LIN Indemnified Person(s).
(iii) Each party shall cooperate, and cause their respective
Affiliates to cooperate, in the defense or prosecution of any Third
Party Claim and shall furnish or cause to be furnished such records,
information and testimony, and attend such conferences, discovery
proceedings, hearings, trials or appeals, as may be reasonably
requested in connection therewith.
(iv) The amount of any Rescission Damages payable under this
Section 14.03(c) by NBC shall be net of (A) any amounts recovered or
recoverable by the relevant LIN Indemnified Person(s) under applicable
insurance policies, (B) the present value of any Tax cost incurred by
the relevant LIN Indemnified Person arising from the receipt of
indemnity payments and (C) the present value of any Tax benefit
realized by the relevant LIN Indemnified Person(s) arising from the
Funding Date Transactions, the rescission thereof or the incurrence or
payment of any such Rescission Damages. In computing the amount of any
such Tax cost or Tax benefit, such LIN Indemnified Person(s) shall be
deemed to fully utilize, at the highest marginal tax rate then in
effect, all Tax items arising from the receipt of any indemnity
payment hereunder, the Funding Date Transactions, the rescission
thereof or the incurrence or payment of any indemnified Rescission
Damages.
54
61
(v) NBC shall not be liable under Section 14.03(c) for any (A)
punitive Rescission Damages or (B) Rescission Damages for lost
profits.
(vi) If any LIN Indemnified Person(s) receives any payment from
NBC in respect of any Rescission Damages pursuant to Section 14.03(c)
and such LIN Indemnified Person(s) could have recovered all or a part
of such Rescission Damages from a third party (a "POTENTIAL
CONTRIBUTOR") based on the underlying Claim asserted against NBC, such
LIN Indemnified Person(s) shall assign such of its rights to proceed
against the Potential Contributor as are necessary to permit NBC to
recover from the Potential Contributor the amount of such payment.
(vii) This Section 14.03(c) shall provide the exclusive remedy
for any Rescission Damages.
ARTICLE 15
MISCELLANEOUS
SECTION 15.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to NBC, Outlet, the LLC and/or the LP, to:
National Broadcasting Company, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
55
62
with a copy to:
National Broadcasting Company, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Ranger, the LLC, the LP and/or to LIN-TV or LIN-Texas after the
Closing Date, to:
Ranger Holdings Corp.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to LIN-TV and/or LIN-Texas, prior to the Closing Date, to:
LIN Television of Texas, L.P.
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
#▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
56
63
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding business day in the place of receipt.
SECTION 15.02. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 15.03. Fees and Expenses. (a) Except as otherwise provided
herein, all costs and expenses incurred in connection with this Agreement shall
be
57
64
paid by the party incurring such cost or expense. Notwithstanding anything to
the contrary herein, NBC shall pay all costs and expenses relating to the
transfer of assets to the LP and the LLC (but excluding (i) any Tax incurred as
a result thereof, other than any transfer Tax and (ii) the insurance required by
Section 12.01(a)(iv) hereof).
(b) If LIN-TV pays the Termination Fee (as defined in the Merger
Agreement) pursuant to Section 7.3(b)(i) of the Merger Agreement, then Ranger
shall pay to NBC an amount in cash equal to 23% of (i) the amount of the
Termination Fee actually paid plus the amount of the expenses actually
reimbursed pursuant to such Section minus (ii) $32 million. If LIN-TV reimburses
Ranger for its expenses pursuant to Section 7.3(b)(iii) of the Merger Agreement,
then Ranger shall pay to NBC an amount in cash equal to 23% of (i) the amount of
the expenses actually reimbursed by LIN-TV minus (ii) $4 million.
SECTION 15.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
SECTION 15.05. Governing Law. This Agreement shall be governed by
and construed in accordance with the law of the State of New York, without
regard to the conflicts of law rules of such state.
SECTION 15.06. Jurisdiction. Except as otherwise expressly provided in
this Agreement, the parties hereto agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in the United States District Court for the Southern District of New
York or any other New York State court sitting in New York City, and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 15.01 shall be deemed
effective service of process on such party.
58
65
SECTION 15.07. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 15.08. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of the
Transaction Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of the Transaction
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
SECTION 15.09. Counterparts; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
SECTION 15.10. Entire Agreement. Except for the Confidentiality
Agreements, the Transaction Documents constitute the entire agreement between
the parties with respect to the subject matter of this Agreement and supersede
all prior agreements and understandings, both oral and written, between the
parties with respect to the subject matter of this Agreement, including without
limitation the Letter Agreement.
SECTION 15.11. Bulk Sales Laws. Each Business Transferee each hereby
waives compliance by each Business Transferor with the provisions of the "bulk
sales", "bulk transfer" or similar laws of any state. NBC agrees to indemnify
and hold the relevant Business Transferee harmless against any and all claims,
losses, damages, liabilities, costs and expenses incurred by each Business
Transferee or any of its Affiliates as a result of any failure to comply with
any such "bulk sales", "bulk transfer" or similar laws.
SECTION 15.12. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
59
66
SECTION 15.13. Covenant of LIN-TV as to Its Subsidiaries. LIN-TV agrees
to cause LIN-Texas and each other Subsidiary that is a party to any Transaction
Document or a participant in any Contemplated Transaction to perform in all
material respects all of its and their respective obligations thereunder and
with respect thereto.
SECTION 15.14. Covenant of NBC as to Its Subsidiaries. NBC agrees to
cause each Subsidiary that is a party to any Transaction Document or a
participant in any Contemplated Transaction to perform in all material respects
all of its obligations thereunder and with respect thereto.
SECTION 15.15. Additional Interim Operating Restriction. (a) During the
period between consummation of the Funding Date Transactions and the Effective
Time, LIN-Texas agrees to cause the LLC to operate the KXAS Business in the
ordinary course of business and not to acquire, sell, lease or otherwise dispose
of a material amount of assets or agree or commit to do any of the foregoing,
except as expressly contemplated by the Transaction Documents.
(b) During the period after the Effective Time but prior to the
consummation of the Closing Date Transactions, Ranger agrees to cause the LLC to
operate the KXAS Business in the ordinary course of business and not to acquire,
sell, lease or otherwise dispose of a material amount of assets or agree or
commit to do any of the foregoing, except as expressly contemplated by the
Transaction Documents.
60
67
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NATIONAL BROADCASTING
COMPANY, INC.
By:
---------------------------------
Name:
Title:
OUTLET BROADCASTING, INC.
By:
---------------------------------
Name:
Title:
RANGER HOLDINGS CORP.
By:
---------------------------------
Name:
Title:
LIN TELEVISION OF TEXAS, L.P.
By:
---------------------------------
Name:
Title:
STATION VENTURE HOLDINGS,
LLC
By:
---------------------------------
Name:
Title:
STATION VENTURE OPERATIONS, LP
By:
---------------------------------
Name:
Title:
LIN TELEVISION CORPORATION
By:
---------------------------------
Name:
Title:
68
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of ________ __, 1998,
between [NAME OF BUSINESS TRANSFEROR], a ________ [corporation/limited
partnership] ("TRANSFEROR"), and [NAME OF BUSINESS TRANSFEREE], a [limited
liability company/limited partnership] ("TRANSFEREE").
W I T N E S S E T H :
WHEREAS, Transferor, Transferee and certain other parties have
concurrently herewith consummated the contribution by the Transferor of the
[all/____%] of the [KXAS/KNSD] Assets(1) pursuant to the terms and conditions
of the Transaction Agreement dated as of January __, 1998 between Transferor,
Transferee and certain other parties, (the "TRANSACTION AGREEMENT"; terms
defined in the Transaction Agreement and not otherwise defined herein being used
herein as therein defined);
WHEREAS, pursuant to the Transaction Agreement, Transferee has agreed
to assume certain liabilities and obligations of Transferor with respect to the
[KXAS/KNSD] Assets and the [KXAS/KNSD] Business;
NOW, THEREFORE, in consideration of the sale of the relevant
Contributed Assets and in accordance with the terms of the Transaction
Agreement, Transferor and Transferee agree as follows:
1. (a) Transferor does hereby contribute, transfer, assign and
deliver to Transferee [all /__%] of the right, title and interest of Transferor
in, to and under the [KNSD/KXAS] Assets; provided that no sale, transfer,
assignment or delivery shall be made of any or any material portion of any of
the relevant Contracts if an attempted contribution, assignment, transfer or
delivery, without the consent of a third party, would constitute a breach or
other contravention thereof or in any way adversely affect the rights of
Transferor or Transferee thereunder.
--------------
(1) To be revised appropriately throughout for the purposes of the
Assignment and Assumption Agreement contemplated by Section 2.01(a)(i) of the
Transaction Agreement.
69
(b) Transferee does hereby accept [all /__%] of the right, title and
interest of Transferor in, to and under [all/___%] of the [KXAS/KNSD] Assets
(except as aforesaid) and Transferee assumes and agrees to pay, perform and
discharge promptly and fully when due [all/___%] of the relevant Assumed
Liabilities and to perform [all /__%] of the obligations of Transferor to be
performed under the relevant Contracts.
2. This Agreement shall be governed by and construed in accordance
with the law of the State of New York, without regard to the conflicts of law
rules of such state.
3. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
[TRANSFEROR]
By:
---------------------------------
Name:
Title:
[TRANSFEREE]
By:
---------------------------------
Name:
Title:
2