ASSET EXCHANGE AGREEMENT
BETWEEN
BENEDEK BROADCASTING CORPORATION
AND
BENEDEK LICENSE CORPORATION
AND
AK MEDIA GROUP, INC.
TABLE OF CONTENTS
Page
1. Definitions...................................................................................1
2. Exchange of Assets............................................................................3
2.1 KKTV Assets.........................................................................3
2.2 KCOY Assets.........................................................................5
2.3 Excluded KKTV Assets................................................................7
2.4 Excluded KCOY Assets................................................................7
2.5 Transfer of Assets..................................................................8
2.6 Non-Assignable Assets...............................................................8
3. Assumption of Liabilities.....................................................................9
3.1 Assumed Liabilities.................................................................9
3.2 Instruments of Assumption..........................................................10
3.3 Excluded KKTV Liabilities..........................................................10
3.4 Excluded KCOY Liabilities..........................................................11
4. Closing Payment; Allocation..................................................................12
4.1 Closing Payment....................................................................12
4.2 Closing Adjustments................................................................12
4.3 Allocation of Purchase Price.......................................................12
5. Closing......................................................................................12
5.1 Time of Closing....................................................................12
5.2 Time Brokerage Agreements..........................................................13
6. Governmental Consents........................................................................13
6.1 FCC Consent........................................................................13
6.2 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇..................................................................13
6.3 Other Governmental Consents........................................................14
7. Representations and Warranties of AKMG.......................................................14
7.1 Organization and Standing..........................................................14
7.2 Power and Authority................................................................14
7.3 No Conflicts.......................................................................14
7.4 Government Approval................................................................15
7.5 Validity...........................................................................15
7.6 Financial Statements...............................................................15
7.7 No Changes.........................................................................16
7.8 Taxes..............................................................................16
7.9 Contracts..........................................................................17
7.10 Real Estate........................................................................18
7.11 Personal Property..................................................................19
7.12 Intellectual Property..............................................................19
7.13 Insurance..........................................................................20
7.14 Litigation.........................................................................20
7.15 Compliance with Law................................................................20
7.16 Labor..............................................................................20
7.17 Employees..........................................................................21
7.18 Pension Plans......................................................................21
7.19 Environmental Warranties...........................................................22
7.20 Accuracy of Information............................................................24
8. Representations and Warranties of Benedek....................................................24
8.1 Organization and Standing..........................................................24
(i)
8.2 Power and Authority................................................................24
8.3 No Conflicts.......................................................................24
8.4 Government Approval................................................................25
8.5 Validity...........................................................................25
8.6 Financial Statements...............................................................25
8.7 No Changes.........................................................................25
8.8 Taxes..............................................................................26
8.9 Contracts..........................................................................27
8.10 Real Estate........................................................................28
8.11 Personal Property..................................................................29
8.12 Intellectual Property..............................................................29
8.13 Insurance..........................................................................30
8.14 Litigation.........................................................................30
8.15 Compliance with Law................................................................30
8.16 Labor..............................................................................30
8.17 Employees..........................................................................31
8.18 Pension Plans......................................................................31
8.19 Environmental Warranties...........................................................32
8.20 Accuracy of Information............................................................33
9. Certain Covenants and Agreements.............................................................33
9.1 Control of the Stations............................................................33
9.2 Access.............................................................................33
9.3 Interim Operations.................................................................34
9.4 Employees of the Stations..........................................................35
9.5 Compliance.........................................................................35
9.6 Compliance with Laws...............................................................35
9.7 No Solicitation....................................................................35
9.8 Payment of Taxes...................................................................36
9.9 FCC Consent........................................................................36
9.10 Time Brokerage Agreements..........................................................36
10. Conditions of Closing........................................................................36
10.1 Obligation of Benedek to Close.....................................................36
10.1.1 Representations........................................................36
10.1.2 Covenants..............................................................36
10.1.3 No Injunction..........................................................37
10.1.4 Consents...............................................................37
10.1.5 KKTV FCC Licenses......................................................37
10.1.6 Governmental Consents..................................................37
10.1.7 Instruments of Transfer................................................37
10.1.8 Assumption Agreements..................................................37
10.1.9 Books of Account.......................................................37
10.1.10 Resolutions............................................................38
10.1.11 Opinions of Counsel to AKMG............................................38
10.1.12 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Compliance...........................................38
10.1.13 Environmental Condition................................................38
10.1.14 Further Documents......................................................38
10.2 Obligation of AKMG to Close........................................................38
10.2.1 Representations........................................................38
10.2.2 Covenants..............................................................39
10.2.3 No Injunction..........................................................39
10.2.4 Consents...............................................................39
10.2.5 KCOY FCC Licenses......................................................39
10.2.6 Governmental Consents..................................................39
10.2.7 Instruments of Transfer................................................39
10.2.8 Assumption Agreements..................................................39
10.2.9 Books of Account.......................................................40
(ii)
10.2.10 Resolutions............................................................40
10.2.11 Opinion of Counsels to Benedek.........................................40
10.2.12 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇......................................................40
10.2.13 Environmental Condition................................................40
10.2.14 Further Documents......................................................40
10.2.15 Receipt of Purchase Price Payable at Closing...........................40
11. Remedies for Breach..........................................................................40
11.1 Declining to Close.................................................................41
11.2 Election to Close..................................................................41
11.3 Remedies Cumulative................................................................41
12. Termination Rights...........................................................................41
13. Indemnification of the Parties...............................................................41
13.1 Indemnification by AKMG............................................................41
13.2 Indemnification by Benedek.........................................................42
13.3 Procedures.........................................................................42
13.4 Limitation.........................................................................43
13.5 Survival of Representations and Warranties.........................................43
14. Brokers......................................................................................43
15. Miscellaneous................................................................................43
15.1 Entire Agreement...................................................................43
15.2 Notices............................................................................43
15.3 Public Announcement................................................................44
15.4 No Waiver..........................................................................45
15.5 Governing Law......................................................................45
15.6 Consent to Jurisdiction............................................................45
15.7 Expenses...........................................................................45
15.8 Binding Agreement..................................................................45
15.9 Headings...........................................................................45
15.10 Counterparts.......................................................................45
(iii)
SCHEDULES
Schedule Number Description
--------------- ------------
1.9 AKMG's & Benedek's Knowledge
2.1.12 Other KKTV Assets
2.2.12 Other KCOY Assets
2.3 Excluded KKTV Assets
2.4 Excluded KCOY Assets
3.3.7 Excluded KKTV Contracts
3.4.7 Excluded KCOY Contracts
4.3 Allocation
7.3 AKMG Conflicts
7.4 KKTV FCC Licenses
7.6 KKTV Financial Statements
7.7 No Changes
7.8 Taxes
7.9 KKTV Contracts
7.9.4 KKTV Trade-Out Balance
7.10 KKTV Real Property
7.11 KKTV Personal Property
7.12 KKTV Intellectual Property
7.13 KKTV Insurance
7.14 KKTV Litigation
7.16 KKTV Labor
7.17 KKTV Employees
7.18 KKTV Employee Plans
(iv)
8.3 Benedek Conflicts
8.4 KCOY FCC Licenses
8.6 KCOY Financial Statements
8.7 No Changes
8.8 Taxes
8.9 KCOY Contracts
8.9.4 KCOY Trade-Out Balance
8.10 KCOY Real Property
8.11 KCOY Personal Property
8.12 KCOY Intellectual Property
8.13 KCOY Insurance
8.14 KCOY Litigation
8.16 KCOY Labor
8.17 KCOY Employees
8.18 KCOY Employee Plans
10.1.4 AKMG Required Consents
10.2.4 Benedek Required Consents
(v)
EXHIBITS
Exhibit Description
------- ------------
A Form of KKTV Time Brokerage Agreement
B Form of KCOY Time Brokerage Agreement
C-1 Form of Opinion of Counsel to AKMG
C-2 Form of Opinion of FCC Counsel to AKMG
C-3 Form of Opinion of Local Counsel to ▇▇▇▇
▇-▇ Form of Opinion of Counsel to Benedek
D-2 Form of Opinion of FCC Counsel to Benedek
D-3 Form of Opinion of Local Counsel to Benedek
(vi)
INDEX TO DEFINED TERMS
Term Location
------ ---------
"Affiliate" Section 1.1
"Agreement" Section 1.2
"AKMG" Page 1, paragraph 1
"Assumed KCOY Liabilities" Section 3.1.2
"Assumed KKTV Liabilities" Section 3.1.1
"Benedek" Page 1, paragraph 1
"BLC" Page 1, paragraph 1
"CBS" Section 2.1.4
"CERCLA" Section 7.19.2.1
"CERCLIS" Section 7.19.7
"Closing" Section 5
"Closing Date" Section 5.1
"Closing Payment" Section 4.1
"COBRA" Section 7.18.6
"Code" Page 1, 3rd WHEREAS
"control" Section 1.1.1
"Employee Plans" Section 7.18
"Environmental Laws" Section 7.19.1
"ERISA" Section 1.3
"ERISA Affiliate" Section 1.4
"Excluded KCOY Assets" Section 2.4
"Excluded KCOY Contracts" Section 3.4.7
"Excluded KCOY Records" Section 2.4.3
"Excluded KKTV Assets" Section 2.3
"Excluded KKTV Contracts" Section 3.3.7
"Excluded KKTV Records" Section 2.3.4
"FCC" Page 1, 1st WHEREAS
"FCC Applications" Section 6.1.1
"FCC Consents" Section 1.5
"Final Orders" Section 1.6
"GAAP" Section 1.7
"Hazardous Material" Section 7.19.2
"hazardous substance" Section 7.19.2.1
"hazardous waste" Section 7.19.2.2
"herein" Section 1.2
"hereof" Section 1.2
"hereunder" Section 1.2
"HSR Act" Section 6.2
"including" Section 1.15.4
(vii)
Term Location
----- ------------
"Information Technology" Section 1.8
"Injured Party" Section 13.3
"Internal Revenue Service" Section 4.3
"KCOY" Page 1, 1st WHEREAS
"KCOY Assets" Section 2.2
"KCOY Financial Statements" Section 8.6
"KCOY Leases" Section 8.10
"KKTV" Page 1, 2nd WHEREAS
"KKTV Assets" Section 2.1
"KKTV Financial Statements" Section 7.6
"KKTV Leases" Section 7.10
"knowledge" Section 1.9
"Lien" Section 1.10
"Losses" Section 13.1
"Material Adverse Effect" Section 1.12
"or" Section 1.15.3
"Other Party" Section 13.3
"Parties" Page 1, paragraph 1
"Party" Page 1, paragraph 1
"Person" Section 1.13
"Station" Page 1, 2nd WHEREAS
"Stations" Page 1, 2nd WHEREAS
"Time Brokerage Agreement" Section 1.11
"Trade Rights" Section 7.12
"trade-out agreements" Section 3.1.1
"Transferred Assets" Section 2.2
"Year 2000 Compliant" Section 1.14
(viii)
ASSET EXCHANGE AGREEMENT
AGREEMENT dated this 30th day of December, 1998, between BENEDEK
BROADCASTING CORPORATION ("Benedek") and BENEDEK LICENSE CORPORATION ("BLC"),
each a Delaware corporation having its principal place of business at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and AK MEDIA GROUP, INC., a Washington
corporation having its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("AKMG") (Benedek and AKMG being each referred
to herein as a "Party" and collectively referred to herein as the "Parties").
W I T N E S S E T H :
WHEREAS, Benedek and its wholly-owned direct subsidiary BLC own and
operate television station KCOY(TV), Channel 12, Santa Maria, California and its
auxiliary facilities ("KCOY") pursuant to licenses issued by the Federal
Communications Commission (the "FCC"); and
WHEREAS, AKMG owns and operates television station KKTV(TV), Channel
11, Colorado Springs, Colorado and its auxiliary facilities ("KKTV") pursuant to
licenses issued by the FCC (KCOY and KKTV being each referred to herein as a
"Station" and collectively referred to herein as the "Stations"); and
WHEREAS, Benedek desires to exchange all of the KCOY Assets (as
hereinafter defined) and Assumed KCOY Liabilities (as hereinafter defined) for
the KKTV Assets (as hereinafter defined) and the Assumed KKTV Liabilities (as
hereinafter defined), and AKMG also desires to make such exchange, in each case
as a like-kind exchange under Section 1031 of the Internal Revenue Code of 1986,
as amended (the "Code"), and in each case upon the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, contemporaneously with the execution of this Agreement, AKMG
and Benedek are entering into Time Brokerage Agreements (as herein defined) with
respect to certain aspects of the operation of the Stations between the date
hereof and the Closing Date (as herein defined).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. Definitions. Unless otherwise stated in this Agreement, the
following terms shall have the following meanings:
1.1 The term "Affiliate" means, with respect to a Person, any
other Person which, directly or indirectly, is in control of, is controlled by
or is under common control with such Person. For purposes of the foregoing
definition, "control" of a Person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such Person whether by
contract or otherwise.
1.2 The term "Agreement" means this agreement, including the
Schedules and all Exhibits hereto, as the same may be amended or otherwise
modified from time to time, and the terms "herein", "hereof", "hereunder" and
like terms shall be taken as referring to this Agreement in its entirety and
shall not be limited to any particular section or provision hereof.
1.3 The term "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and any successor statute
thereto and all final or temporary regulations promulgated thereunder.
1.4 The term "ERISA Affiliate" shall mean with respect to a
Party, all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control and all other
entities which, together with such Party, are treated as a single employer under
any or all of Sections 414(b), (c), (m) or (o) of the Code.
1.5 The term "FCC Consents" means action by the FCC granting
its consent to the assignment of the KKTV FCC Licenses to BLC and action by the
FCC granting its consent to the assignment of the KCOY FCC Licenses to AKMG, as
contemplated by this Agreement.
1.6 The term "Final Orders" means written actions or orders
issued by the FCC, setting forth the FCC Consents and (a) which have not been
reversed, stayed, enjoined, set aside, annulled or suspended, and (b) with
respect to which no requests have been filed for administrative or judicial
review, reconsideration, appeal or stay and the periods provided by statute or
FCC regulations for filing of any such requests for administrative or judicial
review, reconsideration, appeal or stay or for the FCC to set aside the actions
on its own motion have expired.
1.7 The term "GAAP" means generally accepted accounting
principles set forth in opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
1.8 "Information Technology" means computer software, computer
firmware, computer hardware (whether general or specific purpose) and other
similar or related items of automated, computerized or software system(s) that
are used or relied on by a Party in the conduct of the business of its Station.
1.9 The term "knowledge" or similar words shall be deemed to
mean the actual personal knowledge as of the date specified or if no such date
is specified, as of the Closing Date, of each Party's officers, directors and
employees identified on Schedule 1.9 attached hereto.
1.10 The term "Lien" means any charge, claim, lien, mortgage,
obligation, pledge, security interest or other encumbrance of any nature
whatsoever upon, of or in property or other assets of a Person, whether absolute
or conditional, voluntary or involuntary, whether created pursuant to agreement,
arising by force of statute, by judicial proceedings or otherwise.
1.11 The term "Material Adverse Effect" means, with respect to
a Station, a material adverse effect upon the business, operations, assets or
financial condition of such Station.
1.12 The term "Person" shall include an individual, a
partnership, a joint venture, a corporation, a trust, an estate, an
unincorporated organization or association and a governmental agency.
1.13 The term "Time Brokerage Agreements" means (i) the Time
Brokerage Agreement of even date herewith between AKMG, as owner, and Benedek,
as programmer, with respect to KKTV in
2
the form of Exhibit A annexed hereto and (ii) the Time Brokerage Agreement of
even date herewith between Benedek, as owner, and AKMG, as programmer, with
respect to KCOY in the form of Exhibit B annexed hereto.
1.14 The term "Year 2000 Compliant" means that Information
Technology is designed to be used prior to, during and after the calendar year
2000 A.D., and that Information Technology used during each such time period
will accurately receive, provide and process date/time data (including, but not
limited to, calculating, comparing and sequencing) from, into and between the
20th and 21st centuries, including the years 1999 and 2000, and leap-year
calculations and will not malfunction, cease to function, or provide invalid or
incorrect results as a result of date/time data.
1.15 Unless the context otherwise requires:
1.15.1 a term has the meaning assigned to it;
1.15.2 an accounting term not otherwise defined has the
meaning assigned to it in accordance GAAP and all accounting calculations will
be determined in accordance with such principles;
1.15.3 "or" is not exclusive;
1.15.4 "including" means including without limitation; and
1.15.5 words in the singular include the plural and words
in the plural include the singular as the context may require.
2. Exchange of Assets.
2.1 KKTV Assets. On the terms and subject to the conditions of
this Agreement, at the Closing AKMG shall transfer, convey, assign and deliver
to Benedek (or, with respect to the assets described in Section 2.1.1 below, to
BLC) all of the right, title and interest in and to all assets, properties and
rights of others, of every nature, kind and description, wherever located,
tangible and intangible, real, personal and mixed exclusively with respect to
KKTV (excluding only the Excluded KKTV Assets as specified in Section 2.3 below)
(the "KKTV Assets"), as the same shall exist at and as of the Closing Date,
including, without limitation, the following:
2.1.1 all rights in and to the licenses, permits and other
authorizations issued by any governmental authority and held by AKMG and used or
intended for exclusive use in the conduct of the business and operation of KKTV,
including the KKTV FCC Licenses listed on Schedule 7.4 annexed hereto, together
with any renewals, extensions or modification thereof and additions thereto
between the date hereof and the Closing Date, the goodwill and other intangible
personal property associated with or related to KKTV or the operation thereof,
the business of KKTV as a going concern, and all of AKMG's rights in and to the
call letters "KKTV";
2.1.2 all land, leaseholds and other interests of every
kind and description in real property, buildings, towers, and antennae, and
fixtures and improvements thereon as of the date hereof and used or held for
exclusive use in connection with the business and operation of KKTV, including,
3
without limitation, those shown on Schedule 7.10 annexed hereto, and any
additions, improvements, replacements and alterations thereto made between the
date of this Agreement and the Closing Date;
2.1.3 all equipment, cameras, transmitters, antennas,
office furniture and fixtures, office materials and supplies, tools, inventory,
spare parts, and other tangible personal property of every kind and description,
owned by it and used or intended for exclusive use in the conduct of the
business and operation of KKTV, including the property listed on Schedule 7.11
annexed hereto, together with, to the extent permitted by this Agreement, any
replacements thereof and additions thereto made between the date hereof and the
Closing Date, and less any retirements or dispositions thereof made between the
date hereof and the Closing Date which are permitted by this Agreement;
2.1.4 all leases, contracts, licenses, purchase orders,
sales orders, commitments and other agreements pertaining exclusively to KKTV to
which AKMG is a party or in which AKMG has rights, listed on Schedule 7.9
annexed hereto, including the affiliation agreements with CBS Inc. ("CBS"), or
not required by Section 7.9 hereof to be set forth on Schedule 7.9, and those
leases, contracts, licenses, purchase orders, sales orders, commitments and
other agreements pertaining to KKTV entered into between the date hereof and the
Closing Date in accordance with Section 9.3 hereof;
2.1.5 all orders and agreements now existing, or entered
into in the ordinary course of business between the date hereof and the Closing
Date, for the sale of advertising time on KKTV except those which on the Closing
Date have already been filled or cancelled in accordance with Section 9.3 hereof
or have expired;
2.1.6 all programs and programming materials and elements
of whatever form or nature as of the date of this Agreement and used or held for
use in connection with the business and operations of KKTV, whether recorded on
tape or any other substance or intended of live performance, and whether
completed or in production, and all related common-law and statutory copyrights
owned by or licensed to AKMG and used in connection with the business and
operations of KKTV, together with all such programs, materials, elements, and
copyrights acquired by AKMG in connection with the business and operations of
KKTV between the date hereof and the Closing Date, except those that expire or
are cancelled in accordance with Section 9.3 hereof between the date hereof and
the Closing Date;
2.1.7 all rights of AKMG in and to trade names, service
marks, trademarks, trademark registrations and trademark applications,
copyrights, copyright registrations and copyright applications, patents and
patent applications, inventions, trade secrets, logos, slogans, jingles,
proprietary processes, computer software and all other information, know-how and
intellectual property rights and all licenses and other agreements relating to
any of the foregoing to the extent the same relate exclusively to the business
and operations of KKTV, including those listed on Schedule 7.9 annexed hereto;
2.1.8 all causes of action, judgments, claims, demands and
other rights of AKMG of every kind or nature to the extent the same relate
exclusively to the business and operations of KKTV, including, without
limitation, claims under insurance policies;
2.1.9 all rights of AKMG relating to or arising out of or
under express or implied warranties from suppliers with respect to the KKTV
Assets;
4
2.1.10 except as provided in the Time Brokerage Agreement
pertaining to KKTV with respect to the proration of income and expenses, all
prepaid expenses, advances and deposits, including prepaid film and programming
expenses (it being understood that the consideration for the KKTV Assets
includes payment for the contracts and commitments AKMG relating to film and
programming and that no further payment to AKMG or proration shall be due in
respect thereof) and all barter receivables arising in connection with trade-out
agreements now existing or hereafter entered into in the ordinary course of
business to the extent the same relate to the business and operations of KKTV;
2.1.11 all books and records, including, but not limited
to, correspondence, employment records, production records, accounting records,
property records, filings with the FCC, mailing lists, customer and vendor lists
and other records and files of or relating exclusively to the business and
operations of KKTV, other than the Excluded KKTV Records (as herein defined);
provided, however, that such books and records shall be maintained in existence
for a period of three years following the Closing Date and shall be made
available for inspection and duplication by Benedek, at its expense, upon
reasonable notice during normal business hours; and
2.1.12 those other assets, properties and rights described
on Schedule 2.1.12 annexed hereto and made a part hereof.
2.2 KCOY Assets. On the terms and subject to the conditions of
this Agreement, at the Closing Benedek shall transfer, convey, assign and
deliver to AKMG all of the right, title and interest in and to all assets,
properties and rights of others, of every nature, kind and description, wherever
located, tangible and intangible, real, personal and mixed exclusively with
respect to the KCOY (excluding only the Excluded KCOY Assets as specified in
Section 2.4 below) (the "KCOY Assets"), as the same shall exist at and as of the
Closing Date, including, without limitation, the following (the KCOY Assets and
the KKTV Assets being collectively referred to herein as the "Transferred
Assets"):
2.2.1 all rights in and to the licenses, permits and other
authorizations issued by any governmental authority and held by Benedek and BLC
and used or intended for exclusive use in the conduct of the business and
operation of KCOY, including the KCOY FCC Licenses listed on Schedule 8.4
annexed hereto, together with any renewals, extensions or modification thereof
and additions thereto between the date hereof and the Closing Date, the goodwill
and other intangible personal property associated with or related to KCOY or the
operation thereof, the business of KCOY as a going concern, and all of Benedek's
rights in and to the call letters "KCOY";
2.2.2 all land, leaseholds and other interests of every
kind and description in real property, buildings, towers, and antennae, and
fixtures and improvements thereon owned by Benedek as of the date hereof and
used or held for exclusive use in connection with the business and operation of
KCOY, including, without limitation, those shown on Schedule 8.10 annexed
hereto, and any additions, improvements, replacements and alterations thereto
made between the date of this Agreement and the Closing Date;
2.2.3 all equipment, cameras, transmitters, antennas,
office furniture and fixtures, office materials and supplies, tools, inventory,
spare parts, and other tangible personal property of every kind and description,
owned by it and used or intended for exclusive use in the conduct of the
business and operation of KCOY, including the property listed on Schedule 8.11
annexed hereto, together with, to the extent permitted by this Agreement, any
replacements thereof and additions thereto made between the date
5
hereof and the Closing Date, and less any retirements or dispositions thereof
made between the date hereof and the Closing Date which are permitted by this
Agreement;
2.2.4 all leases, contracts, licenses, purchase orders,
sales orders, commitments and other agreements pertaining exclusively to KCOY to
which Benedek is a party or in which Benedek has rights, listed on Schedule 8.9
annexed hereto, including the affiliation agreements with CBS or not required by
Section 8.9 hereof to be set forth on Schedule 8.9, and those leases, contracts,
licenses, purchase orders, sales orders, commitments and other agreements
pertaining to KCOY entered into by a Party between the date hereof and the
Closing Date in accordance with Section 9.3 hereof;
2.2.5 all orders and agreements now existing, or entered
into in the ordinary course of business between the date hereof and the Closing
Date, for the sale of advertising time on KCOY except those which on the Closing
Date have already been filled or cancelled in accordance with Section 9.3 hereof
or have expired;
2.2.6 all programs and programming materials and elements
of whatever form or nature as of the date of this Agreement and used or held for
exclusive use in connection with the business and operations of KCOY, whether
recorded on tape or any other substance or intended of live performance, and
whether completed or in production, and all related common-law and statutory
copyrights owned by or licensed to Benedek and used in connection with the
business and operations of KCOY, together with all such programs, materials,
elements, and copyrights acquired by Benedek in connection with the business and
operations of KCOY between the date hereof and the Closing Date, except those
that expire or are cancelled in accordance with Section 9.3 hereof between the
date hereof and the Closing Date;
2.2.7 all rights of Benedek in and to trade names, service
marks, trademarks, trademark registrations and trademark applications,
copyrights, copyright registrations and copyright applications, patents and
patent applications, inventions, trade secrets, logos, slogans, jingles,
proprietary processes, computer software and all other information, know-how and
intellectual property rights and all licenses and other agreements relating to
any of the foregoing to the extent the same relate to the business and
operations of KCOY, including those listed on Schedule 8.9 annexed hereto;
2.2.8 all causes of action, judgments, claims, demands and
other rights of Benedek of every kind or nature to the extent the same relate to
the business and operations of KCOY, including, without limitation, claims under
insurance policies;
2.2.9 all rights of Benedek relating to or arising out of
or under express or implied warranties from suppliers with respect to the KCOY
Assets;
2.2.10 except as provided in the Time Brokerage Agreement
pertaining to KCOY with respect to the proration of income and expenses, all
prepaid expenses, advances and deposits, including prepaid film and programming
expenses (it being understood that the consideration for the KCOY Assets
includes payment for the contracts and commitments of Benedek relating to film
and programming and that no further payment to Benedek or proration shall be due
in respect thereof) and all barter receivables arising in connection with
trade-out agreements now existing or hereafter entered into in the ordinary
course of business to the extent the same relate to the business and operations
of KCOY;
6
2.2.11 all books and records, including, but not limited
to, correspondence, employment records, production records, accounting records,
property records, filings with the FCC, mailing lists, customer and vendor lists
and other records and files of or relating to the business and operations of
KCOY, other than the Excluded KCOY Records (as herein defined); provided,
however, that such books and records shall be maintained in existence for a
period of three years following the Closing Date and shall be made available for
inspection and duplication by AKMG, at its expense, upon reasonable notice
during normal business hours; and
2.2.12 those other assets, properties and rights described
on Schedule 2.2.12 annexed hereto and made a part hereof.
2.3 Excluded KKTV Assets. Anything contained in Section 2.1
above to the contrary notwithstanding, AKMG shall not transfer, convey or assign
to Benedek and the KKTV Assets shall not include the following (the "Excluded
KKTV Assets"):
2.3.1 the Closing Payment delivered by Benedek to AKMG
pursuant to this Agreement;
2.3.2 any cash or cash equivalents or money market
instruments, including unprocessed checks, savings and checking accounts and
other deposits, certificates of deposits, Treasury bills and other marketable
securities of AKMG;
2.3.3 all of the outstanding accounts receivable of AKMG
as of the date hereof arising out of the sale of advertising time on KKTV for
cash;
2.3.4 AKMG's minute books and such other books and records
(other than books and records specifically described in Section 2.1.11 hereof)
as pertain to the organization, existence or ownership of AKMG; provided,
however, that such books and records relating to KKTV shall be maintained in
existence for a period of three years following the Closing Date and shall be
made available for inspection and duplication by Benedek, at its expense, upon
reasonable notice during normal business hours (the "Excluded KKTV Records");
2.3.5 Excluded KKTV Contracts (as herein defined) and
contracts, commitments and agreements of AKMG to the extent the same relate
solely to Excluded KKTV Assets and not to the operation of KKTV;
2.3.6 assets sold by AKMG after the date hereof and prior
to the Closing Date in accordance with Section 9.3 hereof;
2.3.7 any refunds of Federal, state, local or other taxes,
including, without limitation, income, property or sales taxes, or other taxes
of any kind or description which relate to periods prior to the date hereof; and
2.3.8 those other assets, properties and rights listed on
Schedule 2.3 annexed hereto and made a part hereof.
7
2.4 Excluded KCOY Assets. Anything contained in Section 2.2
above to the contrary notwithstanding, Benedek shall not transfer, convey or
assign to AKMG and the KCOY Assets shall not include the following (the
"Excluded KCOY Assets"):
2.4.1 any cash or cash equivalents or money market
instruments, including unprocessed checks, savings and checking accounts and
other deposits, certificates of deposits, Treasury bills and other marketable
securities of Benedek;
2.4.2 all of the outstanding accounts receivable of
Benedek as of the date hereof arising out of the sale of advertising time on
KCOY for cash;
2.4.3 Benedek's minute books and such other books and
records (other than books and records specifically described in Section 2.2.11
hereof) as pertain to the organization, existence or ownership of Benedek;
provided, however, that such books and records relating to KCOY shall be
maintained in existence for a period of three years following the Closing Date
and shall be made available for inspection and duplication by AKMG, at its
expense, upon reasonable notice during normal business hours (the "Excluded KCOY
Records");
2.4.4 Excluded KCOY Contracts (as herein defined) and
contracts, commitments and agreements of Benedek to the extent the same relate
solely to Excluded KCOY Assets and not to the operation of KCOY;
2.4.5 assets sold by Benedek after the date hereof and
prior to the Closing Date in accordance with Section 9.3 hereof;
2.4.6 any refunds of Federal, state, local or other taxes,
including, without limitation, income, property or sales taxes, or other taxes
of any kind or description which relate to periods prior to the date hereof; and
2.4.7 those other assets, properties and rights listed on
Schedule 2.4 annexed hereto and made a part hereof.
2.5 Transfer of Assets. The transfer of the Transferred Assets
as herein contemplated shall be made by the Parties, free and clear of all Liens
other than Liens set forth on Schedules 7.10, 7.11, 8.10 and 8.11 hereto and not
required to be discharged on or prior to the Closing Date pursuant to the terms
of this Agreement and except only those assumed by each Party pursuant to
Section 3 below. The transfer of the Transferred Assets shall be effected by
delivery by the Parties of such bills of sale, endorsements, assignments,
drafts, checks, deeds, affidavits of title and other instruments of transfer,
conveyance and assignment, including customary deeds with respect to real
property to be conveyed hereunder, as shall be necessary or appropriate to
transfer, convey and assign the KCOY Assets to AKMG and the KKTV Assets to
Benedek on the Closing Date as contemplated by this Agreement and as shall be
reasonably requested by the Parties. The conveyancing documents shall be in form
and substance reasonably satisfactory to the Parties. Each Party shall, at any
time and from time to time after the Closing Date, execute and deliver such
other instruments of transfer and conveyance and do all such further acts and
things as may be reasonably requested by the other Party to transfer, convey,
assign and deliver to the other Party or to aid and assist the other Party in
collecting and reducing to possession, any and all of the respective Transferred
Assets, or to vest in each Party good, valid and marketable title to such
Transferred Assets.
8
2.6 Non-Assignable Assets. Anything contained in this Agreement
to the contrary, this Agreement shall not constitute an agreement or an
attempted agreement to transfer or assign any contract, license, lease,
commitment, sales order, purchase order or other agreement, or any claim or
right of any benefit arising thereunder or resulting therefrom if any such
attempted transfer or assignment thereof, without the consent of any other party
thereto, would constitute a breach thereof or in any way affect the rights of
the assignee Party thereunder. Each Party shall, between the date hereof and the
Closing Date, use their respective best efforts to obtain the consent of any
party or parties to any such contracts, licenses, leases, commitments, sales
orders, purchase orders or other agreements to which it is a party to the
transfer or assignment thereof by such Party to the other Party hereunder in all
cases in which such consent is required for transfer or assignment; provided,
that such efforts shall not require the payment of any consideration by the
Parties other than as expressly provided for in this Agreement. If after a Party
has used its best efforts to obtain the consent of any such other party to such
contract, license, lease, commitment, sales order, purchase order or other
agreement, such consent shall not be obtained at or prior to the Closing, or an
attempted assignment thereof at the Closing would be ineffective and would
affect the rights of the assignee Party thereunder, the Parties will cooperate
with each other in any reasonable arrangement designed to provide for the
assignee Party the benefits under any such contract, license, lease, commitment,
sales order, purchase order or other agreement, including the enforcement, at
the cost and for the benefit of the assignee Party, of any and all rights of the
transferring Party against such other party thereto arising out of the breach or
cancellation thereof by such other party or otherwise. The foregoing shall not
limit, waive or otherwise affect each Party's right to not close the
transactions contemplated by this Agreement to the extent the receipt of any
consent to the transfer or assignment of any contract, license, lease,
commitment, sales order, purchase order or other agreement is a condition to the
obligation of such Party to close hereunder.
3. Assumption of Liabilities.
3.1 Assumed Liabilities. Subject to the terms and conditions of
this Agreement and the performance by the parties hereto of their respective
obligations hereunder, on the Closing Date, simultaneously with the transfer,
conveyance and assignment by AKMG to Benedek of the KKTV Assets and the
transfer, conveyance and assignment by Benedek to AKMG of the KCOY Assets:
3.1.1 Benedek shall assume or otherwise be liable for,
subject to the limitations contained herein, the liabilities and obligations of
AKMG (collectively, the "Assumed KKTV Liabilities") under the following items:
(i) contracts, agreements and commitments set forth on Schedule 7.9, other than
Excluded KKTV Contracts, to the extent the liabilities and obligations
thereunder arise on or after the Closing Date, (ii) contracts, agreements and
commitments in existence on the date hereof and not required by Section 7.9
hereof to be set forth on Schedule 7.9, other than Excluded KKTV Contracts, to
the extent the liabilities and obligations thereunder arise on or after the
Closing Date, (iii) contracts, agreements and commitments with customers and
advertising agencies accepted in the ordinary course of business for the sale of
advertising time on KKTV for cash, to the extent the liabilities and obligations
thereunder arise on or after the Closing Date, (iv) contracts, agreements and
commitments of the type set forth in (i), (ii) or (iii) above, to the extent the
liabilities and obligations thereunder arise on or after the Closing Date, to
which AKMG becomes a party in the ordinary course of business subsequent to the
date of this Agreement and prior to the Closing Date, which (a) are not
performed or discharged prior to the Closing Date, (b) are permitted to be
entered into by AKMG under the terms and conditions of this Agreement and (c)
are effectively assigned and transferred to Benedek as contemplated herein;
provided, however, that Benedek shall not be obligated to assume any contract,
agreement or commitment with respect to programming for KKTV entered into after
the date hereof without Benedek's prior written consent and, further provided,
9
however, that Benedek shall not assume any accrued payable in respect of any
such contract, agreement or commitment and (v) agreements with customers and
advertising agencies accepted in the ordinary course of business and reflected
on Schedule 7.9 or entered into after the date hereof in accordance with Section
9.3 hereof for the sale of advertising time in exchange for goods and services
("trade-out agreements") (film and program barter agreements shall not be
included within the definition of trade-out agreements); and
3.1.2 AKMG shall assume or otherwise be liable for,
subject to the limitations contained herein, the liabilities and obligations of
Benedek (collectively, the "Assumed KCOY Liabilities") under the following
items: (i) contracts, agreements and commitments set forth on Schedule 8.9
hereof, other than Excluded KCOY Contracts, to the extent the liabilities and
obligations thereunder arise on or after the Closing Date, (ii) contracts,
agreements and commitments in existence on the date hereof and not required by
Section 8.9 hereof to be set forth on Schedule 8.9, other than Excluded KCOY
Contracts, to the extent the liabilities and obligations thereunder arise on or
after the Closing Date, (iii) contracts, agreements and commitments with
customers and advertising agencies accepted in the ordinary course of business
for the sale of advertising time on KCOY for cash, to the extent the liabilities
and obligations thereunder arise on or after the Closing Date, (iv) contracts,
agreements and commitments of the type set forth in (i), (ii) or (iii) above, to
the extent the liabilities and obligations thereunder arise on or after the
Closing Date, to Benedek becomes a party in the ordinary course of business
subsequent to the date of this Agreement and prior to the Closing Date, which
(a) are not performed or discharged prior to the Closing Date, (b) are permitted
to be entered into by Benedek under the terms and conditions of this Agreement
and (c) are effectively assigned and transferred to AKMG as contemplated herein;
provided, however, that AKMG shall not be obligated to assume any contract,
agreement or commitment with respect to programming for KCOY entered into after
the date hereof without AKMG's prior written consent and, further provided,
however, that AKMG shall not assume any accrued payable in respect of any such
contract, agreement or commitment and (v) trade-out agreements with customers
and advertising agencies accepted in the ordinary course of business and
reflected on Schedule 8.9 or entered into after the date hereof in accordance
with Section 9.3 hereof.
3.2 Instruments of Assumption. The assumption by Benedek of the
Assumed KKTV Liabilities and the assumption by AKMG of the Assumed KCOY
Liabilities shall be effected by such instruments of assumption delivered to the
other Party on the Closing Date as shall be reasonably satisfactory to the
Parties. Each Party shall, at any time and from time to time after the Closing
Date, execute and deliver such other instruments of assumption and do all such
further acts and things as may be reasonably requested by the other Party to
implement the assumption of each such liability and obligation. The assumption
by Benedek of the Assumed KKTV Liabilities and the assumption by AKMG of the
Assumed KCOY Liabilities shall in no way expand the rights or remedies of third
parties against such Party as compared to the rights and remedies which the
third parties would have had against the such Party had this Agreement not been
consummated.
3.3 Excluded KKTV Liabilities. Benedek does not and shall not
assume, pay, perform or discharge any liabilities or obligations of AKMG, other
than the Assumed KKTV Liabilities and, without limiting the foregoing, it is
expressly agreed by the Parties that Benedek shall not assume or be liable for
any of the following liabilities or obligations of AKMG:
3.3.1 liabilities or obligations of AKMG for borrowed
money or to any of its shareholders or to any Person affiliated or associated
therewith;
10
3.3.2 liabilities or obligations of AKMG incurred with
respect to its entry into this Agreement or its consummation of any of the
transactions contemplated hereunder (including, without limitation, AKMG's legal
and accounting fees);
3.3.3 liabilities or obligations for Federal, state, local
or other taxes, including, without limitation, corporate income taxes, property
or sales or use taxes or reports, or other taxes of any kind or description, in
each case which relate to periods prior to the Closing;
3.3.4 any pension, retirement, profit-sharing plan or
trust or other employee benefit plan of AKMG;
3.3.5 subject to the KKTV Time Brokerage Agreement
executed concurrently herewith, any litigation, proceeding, or claim by any
Person to the extent relating to the business or operation of or otherwise
relating to KKTV prior to the Closing, whether or not such litigation,
proceeding, or claim is pending, threatened, or asserted before, on, or after
the date hereof, including any litigation, proceeding or claim listed on
Schedule 7.14 hereto and any litigation, proceeding or claim pending or
threatened as of the date hereof.
3.3.6 liabilities or obligations which may arise by reason
of or with respect to the dissolution or liquidation of AKMG;
3.3.7 liabilities or obligations arising under or with
respect to the contracts, agreements and commitments listed on Schedule 3.3.7
hereto (the "Excluded KKTV Contracts"); and
3.3.8 liabilities or obligations incurred by Benedek which
violate any representation, warranty, covenant or agreement of AKMG contained
herein or made in connection herewith.
3.4 Excluded KCOY Liabilities. AKMG does not and shall not
assume, pay, perform or discharge any liabilities or obligations of Benedek,
other than the Assumed KCOY Liabilities and, without limiting the foregoing, it
is expressly agreed by the Parties that AKMG shall not assume or be liable for
any of the following liabilities or obligations of Benedek:
3.4.1 liabilities or obligations of Benedek for borrowed
money or to any of its shareholders or to any Person affiliated or associated
therewith;
3.4.2 liabilities or obligations of Benedek incurred with
respect to its entry into this Agreement or its consummation of any of the
transactions contemplated hereunder (including, without limitation, Benedek's
legal and accounting fees);
3.4.3 liabilities or obligations for Federal, state, local
or other taxes, including, without limitation, corporate income taxes, property
or sales or use taxes or reports, or other taxes of any kind or description, in
each case which relate to periods prior to the Closing;
3.4.4 any pension, retirement, profit-sharing plan or
trust or other employee benefit plan of Benedek;
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3.4.5 subject to the KCOY Time Brokerage Agreement
executed concurrently herewith, any litigation, proceeding, or claim by any
Person to the extent relating to the business or operation of or otherwise
relating to KCOY prior to the Closing, whether or not such litigation,
proceeding, or claim is pending, threatened, or asserted before, on, or after
the Closing, including any litigation, proceeding or claim listed on Schedule
8.14 hereto and any litigation, proceeding or claim pending or threatened as of
the Closing.
3.4.6 liabilities or obligations which may arise by reason
of or with respect to the dissolution or liquidation of Benedek;
3.4.7 liabilities or obligations arising under or with
respect to the contracts, agreements and commitments listed on Schedule 3.4.7
hereto (the "Excluded KCOY Contracts"); and
3.4.8 liabilities or obligations incurred by AKMG which
violate any representation, warranty, covenant or agreement of Benedek contained
herein or made in connection herewith.
4. Closing Payment; Allocation.
4.1 Closing Payment. AKMG and Benedek agree that the value of
KKTV exceeds the value of KCOY by an amount equal to the Closing Payment (as
herein defined). In addition to the conveyance of the KCOY Assets and the
assumption of the Assumed KKTV Liabilities, Benedek shall also pay to AKMG the
sum of Nine Million Dollars ($9,000,000) (the "Closing Payment") payable at the
Closing by the wire transfer by Benedek to an account for the sole benefit of
AKMG in immediately available funds.
4.2 Closing Adjustments. All income and expenses arising from
the conduct of the business and operation of the Stations shall be prorated
between the Parties in accordance with the Time Brokerage Agreements.
4.3 Allocation of Purchase Price. The Parties agree that they
will use such asset values in calculating gain (if any) recognized under Treas.
Reg. 'SS' 1.1031(j)-1(b)(3) with respect to each "exchange group" (as defined in
Treas. Reg. 'SS' 1.1031(j)-1(b)(2)(i)), the "residual group" as (defined in
Treas. Reg. 'SS' 1.1031(j)-1(b)(2)(iii)) (if any) and any properties transferred
and received that are not within any "exchange group" or the "residual group"
(if any) and will not take any position on any tax return inconsistent
therewith. To the extent required by Section 1060 of the Code, the regulations
thereunder and Treas. Reg. 'SS' 1.1031(d)-1T, each Party shall allocate, in
accordance with the foregoing provisions, (a) the value of the consideration
transferred by it to the consideration received by it for purposes of
determining the tax basis of the property so received by it and (b) the value of
the consideration received by it to the consideration transferred by it for
purposes of determining the gain and loss (if any) with respect to the property
so transferred. For purposes of the preceding sentence, the Parties shall use
the value of properties transferred and received determined in accordance with
Schedule 4.3. To the extent an IRS Form 8594 is required to be filed under
Section 1060, the regulations thereunder and Treas. Reg. 'SS' 1.1031(d)-1T, the
Parties agree to prepare and file on a timely basis with the Internal Revenue
Service ("IRS") substantially identical IRS Forms 8594 using the values of
properties transferred and received as determined by in accordance with Schedule
4.3, and shall not take any position on any tax return inconsistent therewith.
12
5. Closing.
5.1 Time of Closing. The closing of this Agreement (the
"Closing") shall take place at 10:00 a.m. Eastern Time on a date within ten days
following (i) the date of public notice of the latter of the two FCC Consents,
unless a petition to deny has been timely filed with respect to either FCC
Application (as herein defined), in which event the date on which the latter of
the two FCC Consents shall have become a Final Order (or if either such date is
a Saturday, Sunday, or Federal holiday, on the next business day thereafter),
and (ii) the date on which all other conditions to the obligations of the
Parties hereunder shall have been satisfied or waived in writing. The Closing
shall take place at the offices of Shack & ▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as may be agreed to by the Parties.
The date of the Closing is hereinafter referred to as the "Closing Date."
5.2 Time Brokerage Agreements. On the date hereof, the Parties
shall enter into the Time Brokerage Agreements, substantially in the form of
Exhibits A and B attached hereto, with respect to KKTV and KCOY, respectively.
Unless otherwise set forth herein, the Parties agree that the following matters
relating to the Stations shall be governed in accordance with the Time Brokerage
Agreements: (i) employees; (ii) accounts receivables; (iii) prorations and
adjustments of the income and expense of the Stations; and (iv) cash sales and
trade agreements.
6. Governmental Consents.
6.1 FCC Consent. The exchange of the Station Licenses as
contemplated by this Agreement is subject to the prior consent of the FCC.
6.1.1 Promptly after the execution of this Agreement,
the Parties shall proceed to prepare for filing with the FCC appropriate
applications (the "FCC Applications") for consent to (i) the assignment from
AKMG to BLC of the KKTV FCC Licenses and (ii) the assignment from BLC to AKMG of
the KCOY FCC Licenses. The FCC Application for consent to the assignment from
BLC to AKMG of the KCOY FCC Licenses shall include a request for a waiver of the
FCC's duopoly policy, conditioned upon the outcome of the FCC's ownership
proceedings. The FCC Applications shall be filed with the FCC as soon as
practicable but in no event later than 10 days after the date hereof. The
Parties shall thereafter prosecute the FCC Applications with all reasonable
diligence and otherwise use their reasonable best efforts to obtain the grant of
such application as expeditiously as practicable (but no party shall have any
obligation to take any unreasonable steps to satisfy complainants, if any). If
the FCC Consents impose any condition on any party hereto (other than a
conditional waiver of the FCC's duopoly policy with respect to the assignment of
the KCOY Licenses), such party shall use its reasonable best efforts to comply
with such condition unless compliance would be unduly burdensome or would have a
Material Adverse Effect upon it, its constituent partners, its parent
corporation, or any of its or its parent corporation's subsidiaries or
Affiliates, as appropriate. Each Party shall pay 50% of all filing fees payable
with respect to all filings required by the FCC in connection with the
transactions contemplated by this Agreement and made pursuant to this Section
6.1.1.
6.1.2 The transfer of the KKTV Assets and the KCOY
Assets hereunder is expressly conditioned upon the grant of the FCC Consents and
compliance by the Parties hereto with the conditions (if any) imposed in such
consent.
13
6.2 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. If applicable, the Parties will file as
soon as reasonably practicable (but in any event within 30 days after the date
of this Agreement) with the United States Federal Trade Commission and the
Antitrust Division of the United States Department of Justice any required
notification and report forms with respect to the transactions contemplated
hereunder pursuant to the ▇▇▇▇- ▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of ▇▇▇▇
(▇▇▇ "▇▇▇ ▇▇▇"). Such notification and report forms will comply as to form with
all requirements applicable thereto and all of the data and information reported
in such forms shall be true, correct and complete in all material respects. The
parties shall comply as promptly as practicable with all requests if any for
additional information and documentary materials unless, in the reasonable
opinion of counsel, such information or documentation, as the case may be, is
not required to be produced. Such additional information and documentation will
comply as to form with all requirements applicable thereto and will be true,
correct and complete in all material respects and shall be promptly delivered.
Each Party shall pay 50% of all filing fees payable with respect to all filings
required by the HSR Act in connection with the transactions contemplated by this
Agreement and made pursuant to this Section 6.2.
6.3 Other Governmental Consents. Promptly following the
execution of this Agreement, the Parties will proceed to prepare and file with
the appropriate governmental authorities and any other requests for approval or
waiver that are required from governmental authorities in connection with the
transactions contemplated hereby, and shall diligently and expeditiously
prosecute, and shall cooperate fully with each other in the prosecution of, such
requests for approval or waiver and all proceedings necessary to secure such
approvals and waivers.
7. Representations and Warranties of AKMG. In order to induce Benedek
to enter into this Agreement and to perform its obligations hereunder, AKMG
hereby makes the following representations and warranties to Benedek:
7.1 Organization and Standing. AKMG is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Washington and has all requisite power and authority, corporate or otherwise, to
own, lease, use and operate its properties and assets at and in the places where
such properties and assets are now owned, operated or leased and to transact its
business where and as now conducted. AKMG is duly qualified to do business and
is in good standing in each jurisdiction where it owns, leases or holds real
property or conducts or operates its business, where the nature of its
activities requires such qualification or where the failure to so qualify would
have a Material Adverse Effect on the business or results of operations of KKTV.
AKMG is the successor by merger to KKTV, Inc.
7.2 Power and Authority. AKMG has all requisite power and
authority, corporate or otherwise, to enter into this Agreement, the Time
Brokerage Agreements and the documents and instruments contemplated hereby and
thereby and to assume and perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement, the Time Brokerage Agreements and the
documents and instruments contemplated hereby and thereby and the performance by
AKMG of its obligations hereunder and thereunder have been duly and validly
authorized by all necessary corporate action of AKMG and no further action or
approval, corporate or otherwise, is required in order to constitute this
Agreement, the Time Brokerage Agreements and the documents and instruments
contemplated hereby and thereby as valid and binding obligations of AKMG,
enforceable in accordance with their terms.
7.3 No Conflicts. Except as set forth on Schedule 7.3 annexed
hereto and made a part hereof, the execution and delivery of this Agreement, the
Time Brokerage Agreements and the documents
14
and instruments contemplated hereby and thereby, the consummation of the
transactions contemplated hereby and the performance by AKMG of its obligations
hereunder and thereunder:
7.3.1 do not and will not conflict with or violate any
provision of the certificate of incorporation or bylaws of AKMG;
7.3.2 do not and will not conflict with or result in any
breach of any condition or provisions of, or constitute a default under or give
rise to any right of termination, cancellation or acceleration or (whether after
the giving of notice or lapse of time or both) result in the creation or
imposition of any Lien on any of the KKTV Assets by reason of the terms of any
contract, mortgage, lien, lease, agreement, indenture, instrument, judgment or
decree to which AKMG is a party or which is or purports to be binding upon AKMG
or which affects or purports to affect any of the KKTV Assets; and
7.3.3 subject to the receipt of any governmental approvals
required in connection with the transfer of the KKTV Assets to Benedek or BLC,
do not and will not conflict with or result in a violation of or default under
(with or without notice of the lapse of time or both) any statute, regulation,
rule, judgment, order, decree, stipulation, injunction, charge or other
restriction of any court, administrative agency or commission or other
governmental authority or instrumentality.
7.4 Government Approval. AKMG is the holder of the KKTV FCC
Licenses as set forth on Schedule 7.4 annexed hereto and made a part hereof,
which constitute all necessary authorizations from the FCC to enable KKTV to
broadcast and transmit the present television programming. Other than FCC
rulemaking procedures of general applicability, there are no fines, forfeitures,
notices of apparent liability, orders to show cause or any other administrative
or judicial orders outstanding nor any proceedings pending or, to AKMG's
knowledge, threatened, the effect of which would be the revocation,
cancellation, non-renewal, suspension or adverse modification of the KKTV FCC
Licenses or any adverse consequence for KKTV, and there does not exist any event
which with notice or the passing of time or both could result in a fine,
forfeiture, notice of apparent liability, order to show cause or any other
administrative or judicial order or proceeding by the FCC, the effect of which
would result in the revocation, cancellation, non-renewal, suspension or adverse
modification of the KKTV FCC Licenses or any adverse consequences for KKTV.
Since the date of its acquisition by AKMG, KKTV, including, without limitation,
the technical equipment owned by AKMG relating to KKTV, has been operated in
conformity with the KKTV FCC Licenses in all material respects and within the
FCC rules, regulations and standards of performance in all material respects.
Except as contemplated in Section 6 hereof, no action, approval consent,
authorization or other action, including, but not limited to, any action,
approval, consent or authorization by or filing with any governmental or
quasi-governmental agency, commission, board, bureau or instrumentality, is
necessary or required as to AKMG for the due execution, delivery or performance
by AKMG of this Agreement or any document or instrument contemplated hereby or
in order to constitute this Agreement as a valid and binding obligation of AKMG.
To the best knowledge of AKMG, there are no facts which, under the
Communications Act of 1934, as amended, or the existing rules and regulations of
the FCC, would disqualify AKMG as an assignee of KCOY FCC Licenses.
7.5 Validity. This Agreement and the Time Brokerage Agreements
constitute, and the other documents and instruments contemplated hereby and
thereby will, on the due execution and delivery thereof, constitute the legal,
valid and binding obligations of AKMG, enforceable in accordance with their
respective terms.
15
7.6 Financial Statements. Annexed hereto as Schedule 7.6 and
made a part hereof are the following internal financial statements of KKTV
(collectively the "KKTV Financial Statements"): balance sheets as of November
30, 1998 and December 31, 1997 and 1996 and related statements of income for the
periods then ended. The KKTV Financial Statements are in accordance with GAAP
and the books and records of AKMG and fairly, completely and accurately present
the financial position of KKTV at the dates specified and the results of
operations for the periods covered.
7.7 No Changes. Except as set forth on Schedule 7.7 annexed
hereto and made a part hereof, since November 30, 1998, AKMG has not with
respect to KKTV:
7.7.1 incurred any damage, destruction or similar loss,
whether or not covered by insurance, adversely affecting the business, assets or
properties of KKTV;
7.7.2 other than in the ordinary course of business, sold,
assigned, leased, transferred or otherwise disposed of any of the KKTV Assets;
7.7.3 mortgaged, pledged or granted or suffered to exist
any Lien on any of the KKTV Assets;
7.7.4 other than in the ordinary course of business,
waived any rights of material value or cancelled, discharged, satisfied or paid
any debt, claim, lien, encumbrance, liability or obligation, whether absolute,
accrued, contingent or otherwise and whether due or to become due;
7.7.5 incurred any obligation or liability (absolute or
contingent, liquidated or unliquidated, ▇▇▇▇▇▇ or inchoate), except current
obligations and liabilities incurred in the ordinary course of business;
7.7.6 other than in the ordinary course of business,
entered into any lease, contract, license or other agreement, or made any
amendment of or terminated any lease, contract, license or other agreement to
which AKMG is a party;
7.7.7 effected any change in the accounting practices,
procedures or methods of AKMG;
7.7.8 paid, loaned or advanced any amount to or sold,
transferred or leased any properties or assets (real, personal or mixed,
tangible or intangible) to, or entered into any agreement, arrangement or
transaction of any nature with any employee of KKTV or any Affiliate of AKMG or
any such employee, except for regular compensation paid to an employee of KKTV;
7.7.9 increased the compensation payable to any KKTV
employees or become obligated to increase any such compensation except in the
ordinary course of business and consistent with AKMG's past practices; or
7.7.10 entered into any other transaction other than in
the ordinary course of business and consistent with past practices.
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7.8 Taxes. Except as set forth on Schedule 7.8 annexed hereto
and made a part hereof, AKMG has duly filed all foreign, Federal, state, county
and local income, excise, sales, property, withholding, social security,
franchise, license, information returns and other tax returns and reports
required to have been filed by AKMG to the date hereof with respect to KKTV.
Each such return is true, correct and complete and AKMG has paid all taxes,
assessments, amounts, interest and penalties due to any foreign, Federal, state,
county, local or other taxing authority with respect to all periods prior to the
date hereof required to have been paid by AKMG with respect to KKTV and created
sufficient reserves or made provision for all thereof accrued but not yet due
and payable by it. No government or governmental authority is now asserting or
threatening to assert any deficiency or assessment for additional taxes or any
interest, penalties or fines with respect to AKMG that could result in a Lien on
the KKTV Assets.
7.9 Contracts.
7.9.1 Except only those contracts, agreements or
commitments listed and described on Schedule 7.9 annexed hereto and made a part
hereof (complete and correct copies of which have been heretofore delivered to
Benedek), the Excluded KKTV Contracts and contracts, agreements or commitments
entered into in the ordinary course of business and (x) involving less than
$25,000 over their term or (y) involving more than $25,000 over their term but
not more than $100,000 in the aggregate for all such contracts, agreements or
commitments or (z) involving sales of advertising time for cash in accordance
with the KKTV's customary rate practices or sales of advertising time pursuant
to trade-out agreements entered into in the ordinary course of business, AKMG is
not a party to nor has any contract, agreement or commitment of any kind or
nature whatsoever pertaining to KKTV, written or oral, formal or informal,
including, without limitation, any (i) license, franchise, agency, or similar
agreement, or any other contract relating to the payment of a commission, (ii)
contract or commitment for the employment of any employee or consultant, (iii)
collective bargaining agreement or other contract with any labor union, (iv)
contract or commitment for services, materials, supplies, merchandise, inventory
or equipment, (v) contract or commitment for the sale or purchase of any of its
services, products or assets, (vi) mortgage, indenture, promissory note, loan
agreement, guaranty or other contract or commitment for the borrowing of money
or for a line or letter of credit, (vii) contract or commitment with any
officer, director or any current or former employee of AKMG which will be in
effect on the Closing Date, (viii) contract or commitment with any government or
agency thereof, (ix) contract pursuant to which its right to compete with any
Person in the conduct of its business anywhere in the world is restrained or
restricted for any reason or in any way, (x) contract or commitment guaranteeing
the performance, liabilities or obligations of any Person, (xi) contract or
commitment for capital improvements or expenditures or with any contractor or
subcontractor for in excess of $10,000, (xii) contract or commitment for
charitable contributions aggregating in excess of $5,000, (xiii) lease or other
agreement or commitment pursuant to which it is a lessee of or holds or operates
any real property, machinery, equipment, motor vehicles, office furniture,
fixtures or similar personal property owned by any third party, or (xiv)
contract or commitment otherwise involving in excess of $10,000 in cash over its
term (including any periods covered by any options to renew by any party),
whether or not in the ordinary course of business. Except as set forth on
Schedule 7.9, each of the contracts and commitments referred to therein is valid
and existing, in full force and effect, and enforceable in accordance with its
terms and no party thereto is in default and no claim of default by any party
has been made or is now pending, and no event exists which, with or without the
lapse of time or the giving of notice, or both, would constitute a breach or
default, cause acceleration of any obligation, would permit the termination or
excuse the performance by any party thereto, or would otherwise materially and
adversely affect the KKTV Assets. Except as noted on Schedule 7.9, all contracts
and commitments listed thereon are assignable by AKMG to Benedek without consent
of any other Person.
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7.9.2 The network signal is delivered to KKTV by virtue of
earth receive stations and AKMG has entered into such contracts, leases and
agreements and made such other arrangements as are necessary for the carriage of
the network signal.
7.9.3 KKTV is currently affiliated with CBS pursuant to
the network affiliation contract described on Schedule 7.9. Said network
affiliation contract is in full force and effect and AKMG is not aware of any
state of facts which would permit the termination for cause of such network
affiliation contract prior to the expiration of the term thereof.
7.9.4 Schedule 7.9.4 sets forth by customer the commercial
time owed and goods and services to be received as of the date hereof pursuant
to trade-out agreements, each of which trade- out agreement has been set forth
on Schedule 7.9.4.
7.10 Real Estate.
7.10.1 Schedule 7.10 annexed hereto and made a part hereof
is a complete and correct list of (i) all real property or premises owned in
whole or in part by AKMG and used by KKTV (other than Excluded KKTV Assets) and
(ii) all real property or premises leased in whole or in part by AKMG for use by
KKTV (the "KKTV Leases"). Complete and correct copies of the KKTV Leases and all
deeds, mortgages, deeds of trust and other documents specifically concerning
real property owned by AKMG for use by KKTV (other than Excluded KKTV Assets)
have been heretofore delivered to Benedek.
7.10.2 Schedule 7.10 annexed hereto and made a part hereof
lists all guarantees of the KKTV Leases by any other Person.
7.10.3 Schedule 7.10 annexed hereto and made a part hereof
contains a brief description of all alterations being made or which are planned
in any premises of KKTV, together with the amounts budgeted for such alterations
and the names of architects and general contractors retained in connection
therewith. All permits and approvals of any government or quasi-governmental
authority and all consents of landlords required in connection with such
alterations being made have been obtained or will be obtained by the Closing
Date. AKMG has all required legal and valid occupancy permits and other licenses
or government approvals for each of the properties and premises demised pursuant
to the KKTV Leases or owned by AKMG for use by KKTV (copies of which have been
heretofore delivered to Benedek other than with respect to Excluded KKTV
Assets).
7.10.4 Each KKTV Lease is legal, valid and binding as
between AKMG and the other party or parties thereto and AKMG is a tenant or
possessor in good standing thereunder, free of any material default or breach by
the other party or parties thereto and quietly enjoys the premises provided for
therein. Each rental and other payment due thereunder has been duly made; each
act required to be performed which, if not performed, would constitute a breach
or default thereof has been duly performed by AKMG; and no act forbidden to be
performed has been performed thereunder by AKMG which would constitute a breach
or default thereof. AKMG has the legal right (without the consent or other
approval of any other party) to possess and quietly enjoy each of such premises
and properties under each of the KKTV Leases. Each KKTV Lease is in full force
and effect and constitutes a legal, valid and binding obligation of AKMG and
there is not under any KKTV Lease any claim of default or event which, with or
without notice or the lapse of time or both, would constitute a breach or
default thereunder.
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7.10.5 Except as set forth on Schedule 7.10 annexed hereto
and made a part hereof, AKMG has good, marketable and insurable title to all
real property purported to be owned or occupied by AKMG for use by KKTV (other
than Excluded KKTV Assets), free and clear of all Liens and no party has the
right to acquire or use such real property or any improvements, fixtures or
equipment located thereon except as set forth on Schedule 7.9. Except as set
forth on Schedule 7.10 or Schedule 7.11, AKMG has good and marketable title and
owns outright, free and clear of all Liens, claims, easements, rights of way or
restrictions (whether zoning or otherwise), each improvement, fixture and item
of equipment located in or on each of the properties and premises owned, leased,
used or occupied by it for use by KKTV. No improvement, fixture or equipment in
or on any such premises and properties, to the extent owned or occupied by AKMG
for use by KKTV, or the occupation or leasehold with respect thereto, is in
violation of any law, rule or ordinance, including any zoning, building, safety,
health or environmental law and each of such premises and properties is zoned or
otherwise lawfully used for the purposes for which each of such premises or
properties is now used by AKMG.
7.10.6 None of such premises or properties has been
condemned or otherwise taken by any public authority, no condemnation or taking
is, to AKMG's knowledge, threatened or contemplated, and none thereof is, to
AKMG's knowledge, subject to any claim, contract or law which might affect its
use or value for the purposes now made of it, and each thereof is in good
condition and repair.
7.11 Personal Property. Schedule 7.11 annexed hereto and made a
part hereof is a true and complete list of (i) all tangible personal property
owned by AKMG for use by KKTV having a book value at the date hereof in excess
of $1,000 per item (other than items of personal property having a value in
excess of $1,000 but not in excess of $25,000 in the aggregate) and (ii) all
personal property owned by a third party which is leased or otherwise used by
AKMG for use by KKTV, including, without limitation, leases or other agreements
relating to the use or operation of any machinery, equipment, motor vehicles,
office furniture or fixtures owned by any third party (complete and correct
copies of which leases or other agreements have been heretofore delivered to
Benedek). Each such lease and agreement is in full force and effect and
constitutes a legal, valid and binding obligation of AKMG and there is not under
any such lease or other agreement any default or any claim of default or of an
event which, with or without notice or the lapse of time or both, would
constitute a breach or default thereunder. Except as set forth on Schedule 7.11,
all personal property purported to be owned by AKMG for use by KKTV is owned by
it, free and clear of all Liens, and is in good working condition, subject to
normal wear and tear.
7.12 Intellectual Property. Schedule 7.12 annexed hereto and
made a part hereof is a complete and correct list, and a brief description
(including, if applicable, date of application, filing or registration, as the
case may be, and the registration or application number) of each patent,
invention, trade secret, copyright, proprietary software or hardware, trade
name, trademark, brand name, service ▇▇▇▇, or design, or representation or
expression of any thereof or registration or application therefor ("Trade
Rights") relating to KKTV, whether or not registered in the name of or applied
for by AKMG, in which AKMG has any rights or interests, whether through any
contract or otherwise, except for rights under contracts listed on Schedule 7.9
and rights arising from the direct or indirect purchase of "off the shelf"
software, and in each case a brief description of the nature of such rights and
interests. Except as otherwise listed on Schedule 7.12, AKMG is not a licensor
or a licensee in respect of any Trade Right relating to KKTV nor does AKMG pay
or receive royalty payments to or from any third party in respect of any Trade
Right relating to KKTV. AKMG owns or has the exclusive right to use each such
Trade Right necessary to conduct, or be used in, its business as now operated
and there are no conflicts with or infringements of the rights of others in
respect thereof or any unauthorized use or misappropriation of any thereof. With
respect to each Trade Right
19
relating to KKTV, such Trade Right is subsisting, has not been adjudged invalid
or unenforceable, in whole or in part, and is valid and enforceable; and AKMG
has made all necessary filings and recordations to protect its interest in such
Trade Rights, including, without limitation, recordations of all its interests
in patents, trademarks and service marks in the United States Patent and
Trademark Office and its claims to copyrights in the United States Copyright
Office. AKMG is the exclusive owner of the entire and unencumbered right, title
and interest in and to the Trade Rights owned by AKMG and which relate to KKTV
and no claim is currently being asserted that the use of any such Trade Right
does or may violate the asserted rights of any third party. The Trade Rights
listed on Schedule 7.12 constitute all of the Trade Rights necessary to operate
KKTV and conduct its business as heretofore conducted by AKMG in all material
respects. To the best knowledge of AKMG, KKTV's Information Technology is Year
2000 Compliant in all material respects.
7.13 Insurance. Schedule 7.13 annexed hereto and made a part
hereof is a complete and correct list, and brief description (including name of
insurer, agent, type of coverage, policy number, annual premium, amount of
coverage, expiration date and any material pending claims thereunder) of all
insurance policies, including, without limitation, liability, burglary, theft,
fidelity, life, fire, product liability, workers' compensation, health and other
forms of insurance of any kind held by AKMG relating to the KKTV Assets or KKTV;
each such policy is valid and enforceable, outstanding and in full force and
effect; except as set forth on Schedule 7.13 hereto, AKMG is the sole
beneficiary of each such policy; no such policy, or the future proceeds thereof,
has been assigned to any other Person; all premiums and other payments due from
AKMG under or on account of any such policy have been paid; to AKMG's knowledge,
there is no act or fact or failure to act which has or might cause any such
policy to be cancelled or terminated; AKMG has given each notice and presented
each claim under each such policy and taken any other required or appropriate
action with respect thereto in due and timely fashion; and each such policy is
adequate for the business in which AKMG is engaged. No notice of cancellation or
non-renewal with respect to, or disallowance of any material claim under, any
insurance policies or binders of insurance which relate to the KKTV Assets or
KKTV has been received by AKMG.
7.14 Litigation. Except as set forth on Schedule 7.14 annexed
hereto and made a part hereof, no action, suit, claim, investigation, proceeding
or controversy, whether legal or administrative or in mediation or arbitration,
is pending or, to AKMG's knowledge, threatened, at law or in equity or
admiralty, before or by any court or Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
against or affecting the KKTV Assets or KKTV or seeking to restrain, prohibit,
invalidate, set aside, rescind, prevent or make unlawful this Agreement or the
carrying out of this Agreement or the transactions contemplated hereby, nor, is
there any basis for any such action, suit, claim, investigation or proceeding.
KKTV is not operating under or subject to, or in default in respect of, any
judgment, order, writ, injunction or decree of any court or any Federal, state,
municipal or other governmental department commission, board, bureau, agency or
instrumentality.
7.15 Compliance with Law. AKMG has all permits, licenses,
orders and approvals of all Federal, state or local governmental regulatory
bodies required for it to conduct the business of KKTV in all material respects
as conducted on the date of this Agreement. All such permits, licenses, orders
and approvals are in full force and effect and no suspension or cancellation of
any of them is pending or threatened. AKMG is in compliance in all material
respects with each law, rule, ordinance, regulation, order and decree applicable
to the business of KKTV, including, without limitation, laws, rules and
regulations respecting occupational safety, environmental protection and
employment practices. The conduct of the business of KKTV and all assets and
properties utilized by AKMG therein are in conformance in all material respects
with the requirements and regulations of the Occupational Safety and Health
Administration.
20
7.16 Labor. AKMG is not a party to any representation or labor
contract with respect to employees of KKTV. AKMG has not received any written
notice from any labor union or group of employees that such union or group
represents or believes or claims it represents or intends to represent any of
the employees of AKMG at KKTV; to AKMG's knowledge, no strike or work
interruption by AKMG's employees at KKTV is planned, under consideration,
threatened or imminent; and AKMG has not made any loan or given anything of
value, directly or indirectly, to any officer, official, agent or representative
of any labor union or group of employees at KKTV other than salaries and
ordinary course compensation. At no time since its acquisition of KKTV has AKMG
experienced any threats of strikes, work stoppages or demands for collective
bargaining by any union or labor organization or any other group or other
organization of employees, any grievances, disputes or controversies with any
union or any other group or any other organization of employees at KKTV or any
pending or threatened court or arbitration proceedings involving an employment
grievance, dispute or controversy at KKTV. Except as set forth on Schedule 7.16
annexed hereto and made a part hereof: (i) AKMG is not delinquent in payments to
any of its employees at KKTV for any wages, salaries, commissions, bonuses or
other direct compensation for any services performed by them to the date hereof
or amounts required to be reimbursed to such employees; (ii) in the event of
termination of the employment of any said employees other than termination of
any employee who is a party to an employment agreement with AKMG, neither AKMG
nor Benedek will by reason of anything done prior to the Closing be liable to
any of said employees for so-called "severance pay," "pay in lieu of notice" or
any other payments; (iii) AKMG is in compliance in all material respects with
all Federal, state and local laws and regulations respecting labor, employment
and employment practices, terms and conditions of employment and wages and hours
with respect to its employees at KKTV; and (iv) there is no unfair labor
practice complaint against AKMG pending before the National Labor Relations
Board or any comparable state or local agency with respect to its employees at
KKTV.
7.17 Employees. Schedule 7.17 annexed hereto and made a part
hereof is a complete and correct list of the names and current annual salary,
bonus and commission for each current employee of KKTV. Except as set forth on
Schedule 7.17, no current or former employee of KKTV or any relative, associate
or agent of such employee has any interest in any property of KKTV, or is a
party, directly or indirectly, to any contract for employment or otherwise or
any lease or has entered into any transaction with AKMG, including, without
limitation, any contract for the furnishing of services by, or rental of real or
personal property from or to, or requiring payments to, any such employee or
relative, associate or agent. Complete and correct copies of any such contracts
have been delivered to Benedek. AKMG does not have any contract for the future
employment of any employee of KKTV except as may be listed on Schedule 7.17.
7.18 Employee Plans. Schedule 7.18 annexed hereto and made a
part hereof is a complete and correct list of all pension, profit sharing
agreements or arrangements, deferred compensation, medical, severance and other
employee benefit and fringe benefit plans ("Employee Plans") maintained or
contributed to by AKMG or any ERISA Affiliate of AKMG with respect to its
employees at KKTV, including any employee benefit plans within the meaning of
Section 3(3) of ERISA. True and complete copies of each such Employee Plan have
been heretofore made available to Benedek. All such Employee Plans, related
trust instruments or annuity contracts (or any other funding instruments) are
legal, valid and binding and are in full force and effect, and each such
Employee Plan intended to be qualified under Section 401(a) of the Code is so
qualified and has been so qualified at all times since its inception. All such
Employee Plans have been maintained, in all material respects, in accordance
with the requirements of the Code and ERISA, or any other applicable statute,
regulation or rule. There are no pending claims against any such Employee Plan
(other than routine claims for benefits in accordance with its terms) nor, to
the
21
knowledge of AKMG, has any claim been threatened in writing by any participant
thereof or beneficiary thereunder.
7.18.1 No Employee Plan with respect to employees at KKTV
is covered by Title IV of ERISA, Section 302 of ERISA or Section 912 of the
Code.
7.18.2 With respect to all Employee Plans with respect to
employees at KKTV that are defined contribution plans, AKMG and any ERISA
Affiliate of AKMG have made all contributions due thereunder for plan years
prior to the date hereof.
7.18.3 Neither AKMG nor any ERISA Affiliate of AKMG or any
plan fiduciary of any Employee Plan with respect to employees at KKTV is or has
engaged in any transaction in violation of Section 406(a) or 406(b) of ERISA for
which no exemption exists under ERISA or under applicable sections of the Code.
Neither AKMG nor any ERISA Affiliate of AKMG, or the administering committee or
trustees of any such Employee Plan has received (i) notice from the IRS or the
Department of Labor of the occurrence of a prohibited transaction within the
meaning of Section 406 of ERISA, or (ii) notice of any breach of loyalty,
prudence, diversification or effectuation within the meaning of Section 404 of
ERISA.
7.18.4 No Employee Plan with respect to employees at KKTV
is a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA.
7.18.5 All Employee Plans with respect to employees at
KKTV are in material compliance with all applicable reporting, disclosure,
filing and other administrative requirements pertaining to employee benefit
plans set forth in the Code and ERISA and rules and regulation promulgated under
either, including, but not limited, to those set forth in Sections 6057, 6058
and 6059 of the Code and applicable rules and regulations thereunder, and in
Sections 101, 102, 103, 104, 105, and 107 of ERISA.
7.18.6 With respect to employees at KKTV, AKMG and any
ERISA Affiliate of AKMG at all times have been in full compliance with all
provisions of the Title X of the Consolidation Omnibus Budget Reconciliation Act
of 1985, as amended ("COBRA"), and with the provisions of Part 6 of Title I of
ERISA.
7.18.7 During the twelve-consecutive month period prior to
the date of this Agreement, no steps have been taken to terminate any Employee
Plan with respect to employees at KKTV, and no contribution failure has occurred
with respect to any such Employee Plan sufficient to give rise to a lien under
Section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to such an Employee Plan which might result in the
incurrence of any material liability, fine or penalty by either AKMG or any
ERISA Affiliate of AKMG. Neither AKMG nor any ERISA Affiliate of AKMG has any
contingent liability with respect to any post-retirement benefit under any
welfare plan with respect to employees at KKTV, as such term is defined in
Section 3(1) of ERISA, other than liability for continuation coverage described
in Part 6 of Title I of ERISA.
7.18.8 The transactions contemplated by this Agreement
will not result in any payment or series of payments by AKMG to any person of a
parachute payment within the meaning of Section 280G of the Code.
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7.19 Environmental Warranties.
7.19.1 "Environmental Laws" means all applicable Federal,
state or local statutes laws, ordinances, codes, rules, regulations and
guidelines (including consent decrees and administrative orders) relating to
public health and safety and protection of the environment.
7.19.2 "Hazardous Material" means
7.19.2.1 any "hazardous substance", as defined by the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended ("CERCLA");
7.19.2.2 any "hazardous waste", as defined by the
Resource Conservation and Recovery Act, as amended;
7.19.2.3 any petroleum product; or
7.19.2.4 any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within the meaning of any
other applicable Federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders) relating to or
imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, all as amended or hereafter amended.
7.19.3 All facilities and property (including underlying
groundwater) owned or leased by AKMG with respect to KKTV have been, and
continue to be, owned or leased by AKMG in material compliance with all
Environmental Laws.
7.19.4 There have been no past, and there are no pending
(i) claims, complaints, notices or requests for information received by AKMG
with respect to KKTV regarding any alleged violation of any Environmental Law,
or (ii) complaints, notices or inquiries to AKMG with respect to KKTV regarding
potential liability under any Environmental Law.
7.19.5 There have been no releases of Hazardous Materials
at, on or under any property now or previously owned or leased by AKMG with
respect to KKTV.
7.19.6 AKMG has been issued and is in material compliance
with all permits, certificates, approvals, licenses, applicable comprehensive
plans and other authorizations relating to environmental matters and necessary
or desirable for the business of KKTV.
7.19.7 To AKMG's knowledge, no property now owned or
leased by AKMG with respect to KKTV is listed or proposed for listing (with
respect to owned property only) on the National Priorities List pursuant to
CERCLA, on the Comprehensive Environmental Response Compensation Liability
Information System List ("CERCLIS") or on any similar state list of sites
requiring investigation or clean-up.
7.19.8 There are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property now owned
or leased by AKMG with respect to KKTV.
23
7.19.9 AKMG has not directly transported or directly
arranged for the transportation of any Hazardous Material to any location which
is listed or proposed for listing on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state list or which is the subject of
Federal, state or local enforcement actions or other investigations which may
lead to claims against AKMG for any remedial work, damage to natural resources
or personal injury, including claims under CERCLA.
7.19.10 There are no polychlorinated biphenyls or friable
asbestos present at any property now or previously owned or leased by AKMG with
respect to KKTV.
7.19.11 No conditions exist at, on or under any property
now owned or leased by AKMG with respect to KKTV which, with the passage of
time, or the giving of notice or both, would give rise to any material liability
under any Environmental Law or would materially adversely affect the use of any
such property.
7.20 Accuracy of Information. Neither this Agreement nor
the representations and warranties by AKMG contained herein or in any documents,
instruments, certificates or schedules furnished pursuant hereto or in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements or fact contained herein and therein not misleading.
8. Representations and Warranties of Benedek. In order to induce AKMG
to enter into this Agreement and to perform its obligations hereunder, Benedek
hereby makes the following representations and warranties to AKMG:
8.1 Organization and Standing. Benedek is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority, corporate or otherwise, to
own, lease, use and operate its properties and assets at and in the places where
such properties and assets are now owned, operated or leased and to transact its
business where and as now conducted. Benedek is duly qualified to do business
and is in good standing in each jurisdiction where it owns, leases or holds real
property or conducts or operates its business, where the nature of its
activities requires such qualification or where the failure to so qualify would
have a Material Adverse Effect on the business or results of operations of KCOY.
8.2 Power and Authority. Benedek has all requisite power and
authority, corporate or otherwise, to enter into this Agreement, the Time
Brokerage Agreements and the documents and instruments contemplated hereby and
thereby and to assume and perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement, the Time Brokerage Agreements and the
documents and instruments contemplated hereby and thereby and the performance by
Benedek of its obligations hereunder and thereunder have been duly authorized by
all necessary corporate action of Benedek and no further action or approval,
corporate or otherwise, is required in order to constitute this Agreement, the
Time Brokerage Agreements and the documents and instruments contemplated hereby
and thereby as valid and binding obligations of Benedek, enforceable in
accordance with their terms.
8.3 No Conflicts. Except as set forth on Schedule 8.3 annexed
hereto and made a part hereof, the execution and delivery of this Agreement, the
Time Brokerage Agreements and the documents
24
and instruments contemplated hereby and thereby, the consummation of the
transactions contemplated hereby and the performance by Benedek of its
obligations hereunder and thereunder:
8.3.1 do not and will not conflict with or violate any
provision of the certificate of incorporation or bylaws of Benedek;
8.3.2 do not and will not conflict with or result in
any breach of any condition or provisions of, or constitute a default under or
give rise to any right of termination, cancellation or acceleration or (whether
after the giving of notice or lapse of time or both) result in the creation or
imposition of any Lien on any of the KCOY Assets by reason of the terms of any
contract, mortgage, lien, lease, agreement, indenture, instrument, judgment or
decree to which Benedek is a party or which is or purports to be binding upon
Benedek or which affects or purports to affect any of the KCOY Assets; and
8.3.3 subject to the receipt of any governmental
approvals required in connection with the transfer of the KCOY Assets to AKMG,
do not and will not conflict with or result in a violation of or default under
(with or without notice of the lapse of time or both) any statute, regulation,
rule, judgment, order, decree, stipulation, injunction, charge or other
restriction of any court, administrative agency or commission or other
governmental authority or instrumentality.
8.4 Government Approval. BLC is the holder of the KCOY FCC
Licenses as set forth on Schedule 8.4 annexed hereto and made a part hereof,
which constitute all necessary authorizations from the FCC to enable KCOY to
broadcast and transmit the present television programming. Other than FCC
rulemaking procedures of general applicability, there are no fines, forfeitures,
notices of apparent liability, orders to show cause or any other administrative
or judicial orders outstanding nor any proceedings pending or, to Benedek's
knowledge, threatened, the effect of which would be the revocation,
cancellation, non-renewal, suspension or adverse modification of the KCOY FCC
Licenses or any adverse consequence for KCOY, and there does not exist any event
which with notice or the passing of time or both could result in a fine,
forfeiture, notice of apparent liability, order to show cause or any other
administrative or judicial order or proceeding by the FCC, the effect of which
would result in the revocation, cancellation, non-renewal, suspension or adverse
modification of the KCOY FCC Licenses or any adverse consequences for KCOY.
Since the date of its acquisition by Benedek, KCOY, including, without
limitation, the technical equipment owned by Benedek relating to KCOY, has been
operated in conformity with the KCOY FCC Licenses in all material respects and
within the FCC rules, regulations and standards of performance in all material
respects. Except as contemplated in Section 6 hereof, no action, approval
consent, authorization or other action, including, but not limited to, any
action, approval, consent or authorization by or filing with any governmental or
quasi-governmental agency, commission, board, bureau or instrumentality, is
necessary or required as to Benedek for the due execution, delivery or
performance by Benedek of this Agreement or any document or instrument
contemplated hereby or in order to constitute this Agreement as a valid and
binding obligation of Benedek. To the best knowledge of Benedek, there are no
facts which, under the Communications Act of 1934, as amended, or the existing
rules and regulations of the FCC, would disqualify BLC as an assignee of KKTV
FCC Licenses.
8.5 Validity. This Agreement and the Time Brokerage Agreements
constitute, and the other documents and instruments contemplated hereby and
thereby will, on the due execution and delivery thereof, constitute the legal,
valid and binding obligations of Benedek, enforceable in accordance with their
respective terms.
25
8.6 Financial Statements. Annexed hereto as Schedule 8.6 and
made a part hereof are the following internal financial statements of KCOY
(collectively the "KCOY Financial Statements"): balance sheets as of November
30, 1998 and December 31, 1997 and 1996 and related statements of income for the
periods then ended. The KCOY Financial Statements are in accordance with GAAP
and the books and records of KCOY and fairly, completely and accurately present
the financial position of KCOY at the dates specified and the results of
operations for the periods covered.
8.7 No Changes. Except as set forth on Schedule 8.7 annexed
hereto and made a part hereof, since November 30, 1998, Benedek has not with
respect to KCOY:
8.7.1 incurred any damage, destruction or similar
loss, whether or not covered by insurance, adversely affecting the business,
assets or properties of KCOY;
8.7.2 other than in the ordinary course of business,
sold, assigned, leased, transferred or otherwise disposed of any of the KCOY
Assets;
8.7.3 mortgaged, pledged or granted or suffered to
exist any Lien on any of the KCOY Assets;
8.7.4 other than in the ordinary course of business,
waived any rights of material value or cancelled, discharged, satisfied or paid
any debt, claim, lien, encumbrance, liability or obligation, whether absolute,
accrued, contingent or otherwise and whether due or to become due;
8.7.5 incurred any obligation or liability (absolute
or contingent, liquidated or unliquidated, ▇▇▇▇▇▇ or inchoate), except current
obligations and liabilities incurred in the ordinary course of business;
8.7.6 other than in the ordinary course of business,
entered into any lease, contract, license or other agreement, or made any
amendment of or terminated any lease, contract, license or other agreement to
which Benedek is a party;
8.7.7 effected any change in the accounting practices,
procedures or methods of Benedek;
8.7.8 paid, loaned or advanced any amount to or sold,
transferred or leased any properties or assets (real, personal or mixed,
tangible or intangible) to, or entered into any agreement, arrangement or
transaction of any nature with any employee of KCOY or any Affiliate of Benedek
or any such employee, except for regular compensation paid to an employee of
KCOY;
8.7.9 increased the compensation payable to any KCOY
employees or become obligated to increase any such compensation except in the
ordinary course of business and consistent with Benedek's past practices; or
8.7.10 entered into any other transaction other than
in the ordinary course of business and consistent with past practices.
26
8.8 Taxes. Except as set forth on Schedule 8.8 annexed hereto
and made a part hereof, Benedek has duly filed all foreign, Federal, state,
county and local income, excise, sales, property, withholding, social security,
franchise, license, information returns and other tax returns and reports
required to have been filed by Benedek to the date hereof with respect to KCOY.
Each such return is true, correct and complete and Benedek has paid all taxes,
assessments, amounts, interest and penalties due to any foreign, Federal, state,
county, local or other taxing authority with respect to all periods prior to the
date hereof required to have been paid by Benedek with respect to KCOY and
created sufficient reserves or made provision for all thereof accrued but not
yet due and payable by it. No government or governmental authority is now
asserting or threatening to assert any deficiency or assessment for additional
taxes or any interest, penalties or fines with respect to Benedek that could
result in a Lien on the KCOY Assets.
8.9 Contracts.
8.9.1 Except only those contracts, agreements or
commitments listed and described on Schedule 8.9 annexed hereto and made a part
hereof (complete and correct copies of which have been heretofore delivered to
AKMG), the Excluded KCOY Contracts and contracts, agreements or commitments
entered into in the ordinary course of business and (x) involving less than
$25,000 over their term or (y) involving more than $25,000 over their term but
not more than $100,000 in the aggregate for all such contracts, agreements or
commitments or (z) involving sales of advertising time for cash in accordance
with the KCOY's customary rate practices or sales of advertising time pursuant
to trade-out agreements entered into in the ordinary course of business, Benedek
is not a party to nor has any contract, agreement or commitment of any kind or
nature whatsoever pertaining to KCOY, written or oral, formal or informal,
including, without limitation, any (i) license, franchise, agency, or similar
agreement, or any other contract relating to the payment of a commission, (ii)
contract or commitment for the employment of any employee or consultant, (iii)
collective bargaining agreement or other contract with any labor union, (iv)
contract or commitment for services, materials, supplies, merchandise, inventory
or equipment, (v) contract or commitment for the sale or purchase of any of its
services, products or assets, (vi) mortgage, indenture, promissory note, loan
agreement, guaranty or other contract or commitment for the borrowing of money
or for a line or letter of credit, (vii) contract or commitment with any
officer, director or any current or former employee of Benedek which will be in
effect on the Closing Date, (viii) contract or commitment with any government or
agency thereof, (ix) contract pursuant to which its right to compete with any
Person in the conduct of its business anywhere in the world is restrained or
restricted for any reason or in any way, (x) contract or commitment guaranteeing
the performance, liabilities or obligations of any Person, (xi) contract or
commitment for capital improvements or expenditures or with any contractor or
subcontractor for in excess of $10,000, (xii) contract or commitment for
charitable contributions aggregating in excess of $5,000, (xiii) lease or other
agreement or commitment pursuant to which it is a lessee of or holds or operates
any real property, machinery, equipment, motor vehicles, office furniture,
fixtures or similar personal property owned by any third party, or (xiv)
contract or commitment otherwise involving in excess of $10,000 in cash over its
term (including any periods covered by any options to renew by any party),
whether or not in the ordinary course of business. Except as set forth on
Schedule 8.9, each of the contracts and commitments referred to therein is valid
and existing, in full force and effect, and enforceable in accordance with its
terms and no party thereto is in default and no claim of default by any party
has been made or is now pending, and no event exists which, with or without the
lapse of time or the giving of notice, or both, would constitute a breach or
default, cause acceleration of any obligation, would permit the termination or
excuse the performance by any party thereto, or would otherwise materially and
adversely affect the KCOY Assets. Except as noted on Schedule 8.9, all contracts
and commitments listed thereon are assignable by Benedek to AKMG without consent
of any other Person.
27
8.9.2 The network signal is delivered to KCOY by
virtue of earth receive stations and Benedek has entered into such contracts,
leases and agreements and made such other arrangements as are necessary for the
carriage of the network signal.
8.9.3 KCOY is currently affiliated with CBS pursuant
to the network affiliation contract described on Schedule 8.9. Said network
affiliation contract is in full force and effect and Benedek is not aware of any
state of facts which would permit the termination for cause of such network
affiliation contract prior to the expiration of the term thereof.
8.9.4 Schedule 8.9.4 sets forth by customer the
commercial time owed and goods and services to be received as of the date hereof
pursuant to trade-out agreements, each of which trade-out agreement has been set
forth on Schedule 8.9.4.
8.10 Real Estate.
8.10.1 Schedule 8.10 annexed hereto and made a part
hereof is a complete and correct list of (i) all real property or premises owned
in whole or in part by Benedek and used by KCOY (other than Excluded KCOY
Assets) and (ii) all real property or premises leased in whole or in part by
Benedek for use by KCOY (the "KCOY Leases"). Complete and correct copies of the
KCOY Leases and all deeds, mortgages, deeds of trust and other documents
specifically concerning real property owned by Benedek for use by KCOY (other
than Excluded KCOY Assets) have been heretofore delivered to AKMG.
8.10.2 Schedule 8.10 annexed hereto and made a part
hereof lists all guarantees of the KCOY Leases by any other Person.
8.10.3 Schedule 8.10 annexed hereto and made a part
hereof contains a brief description of all alterations being made or which are
planned in any premises of KCOY, together with the amounts budgeted for such
alterations and the names of architects and general contractors retained in
connection therewith. All permits and approvals of any government or
quasi-governmental authority and all consents of landlords required in
connection with such alterations being made have been obtained or will be
obtained by the Closing Date. Benedek has all required legal and valid occupancy
permits and other licenses or government approvals for each of the properties
and premises demised pursuant to the KCOY Leases or owned by Benedek for use by
KCOY (copies of which have been heretofore delivered to AKMG other than with
respect to Excluded KCOY Assets).
8.10.4 Each KCOY Lease is legal, valid and binding as
between Benedek and the other party or parties thereto and Benedek is a tenant
or possessor in good standing thereunder, free of any material default or breach
by the other party or parties thereto and quietly enjoys the premises provided
for therein. Each rental and other payment due thereunder has been duly made;
each act required to be performed which, if not performed, would constitute a
breach or default thereof has been duly performed by Benedek; and no act
forbidden to be performed has been performed thereunder by Benedek which would
constitute a breach or default thereof. Benedek has the legal right (without the
consent or other approval of any other party) to possess and quietly enjoy each
of such premises and properties under each of the KCOY Leases. Each KCOY Lease
is in full force and effect and constitutes a legal, valid and binding
obligation of Benedek and there is not under any KCOY Lease any claim of default
or event which, with or without notice or the lapse of time or both, would
constitute a breach or default thereunder.
28
8.10.5 Except as set forth on Schedule 8.10 annexed
hereto and made a part hereof, Benedek has good, marketable and insurable title
to all real property purported to be owned or occupied by Benedek for use by
KCOY (other than Excluded KCOY Assets), free and clear of all Liens and no party
has the right to acquire or use such real property or any improvements, fixtures
or equipment located thereon except as set forth on Schedule 8.9. Except as set
forth on Schedule 8.10 or Schedule 8.11, Benedek has good and marketable title
and owns outright, free and clear of all Liens, claims, easements, rights of way
or restrictions (whether zoning or otherwise), each improvement, fixture and
item of equipment located in or on each of the properties and premises owned,
leased, used or occupied by it for use by KCOY. No improvement, fixture or
equipment in or on any such premises and properties, to the extent owned or
occupied by Benedek for use by KCOY, or the occupation or leasehold with respect
thereto, is in violation of any law, rule or ordinance, including any zoning,
building, safety, health or environmental law and each of such premises and
properties is zoned or otherwise lawfully used for the purposes for which each
of such premises or properties is now used by Benedek.
8.10.6 None of such premises or properties has been
condemned or otherwise taken by any public authority, no condemnation or taking
is, to Benedek's knowledge, threatened or contemplated, and none thereof is, to
Benedek's knowledge, subject to any claim, contract or law which might affect
its use or value for the purposes now made of it, and each thereof is in good
condition and repair.
8.11 Personal Property. Schedule 8.11 annexed hereto and made a
part hereof is a true and complete list of (i) all tangible personal property
owned by Benedek for use by KCOY having a book value as of November 30, 1998 in
excess of $1,000 per item (other than items of personal property having a value
in excess of $1,000 but not in excess of $25,000 in the aggregate) and (ii) all
personal property owned by a third party which is leased or otherwise used by
Benedek for use by KCOY, including, without limitation, leases or other
agreements relating to the use or operation of any machinery, equipment, motor
vehicles, office furniture or fixtures owned by any third party (complete and
correct copies of which leases or other agreements have been heretofore
delivered to AKMG). Each such lease and agreement is in full force and effect
and constitutes a legal, valid and binding obligation of Benedek and there is
not under any such lease or other agreement any default or any claim of default
or of an event which, with or without notice or the lapse of time or both, would
constitute a breach or default thereunder. Except as set forth on Schedule 8.11,
all personal property purported to be owned by Benedek for use by KCOY is owned
by it, free and clear of all Liens, and is in good working condition, subject to
normal wear and tear.
8.12 Intellectual Property. Schedule 8.12 annexed hereto and
made a part hereof is a complete and correct list, and a brief description
(including, if applicable, date of application, filing or registration, as the
case may be, and the registration or application number) of each Trade Right
relating to KCOY, whether or not registered in the name of or applied for by
Benedek, in which Benedek has any rights or interests, whether through any
contract or otherwise, except for rights under contracts listed on Schedule 8.9
and rights arising from the direct or indirect purchase of "off the shelf"
software, and in each case a brief description of the nature of such rights and
interests. Except as otherwise listed on Schedule 8.12, Benedek is not a
licensor or a licensee in respect of any Trade Right relating to KCOY nor does
Benedek pay or receive royalty payments to or from any third party in respect of
any Trade Right relating to KCOY. Benedek owns or has the exclusive right to use
each such Trade Right necessary to conduct, or be used in, its business as now
operated and there are no conflicts with or infringements of the rights of
others in respect thereof or any unauthorized use or misappropriation of any
thereof. With respect to each Trade Right relating to KCOY, such Trade Right is
subsisting, has not been adjudged invalid or unenforceable, in whole or in part,
and is valid and enforceable; and Benedek has made all necessary filings and
recordations to
29
protect its interest in such Trade Rights, including, without limitation,
recordations of all its interests in patents, trademarks and service marks in
the United States Patent and Trademark Office and its claims to copyrights in
the United States Copyright Office. Benedek is the exclusive owner of the entire
and unencumbered right, title and interest in and to the Trade Rights owned by
Benedek and which relate to KCOY and no claim is currently being asserted that
the use of any such Trade Right does or may violate the asserted rights of any
third party. The Trade Rights listed on Schedule 8.12 constitute all of the
Trade Rights necessary to operate KCOY and conduct its business as heretofore
conducted by Benedek in all material respects. To the best knowledge of Benedek,
KCOY's Information Technology is Year 2000 Compliant in all material respects.
8.13 Insurance. Schedule 8.13 annexed hereto and made a part
hereof is a complete and correct list, and brief description (including name of
insurer, agent, type of coverage, policy number, annual premium, amount of
coverage, expiration date and any material pending claims thereunder) of all
insurance policies, including, without limitation, liability, burglary, theft,
fidelity, life, fire, product liability, workers' compensation, health and other
forms of insurance of any kind held by Benedek relating to the KCOY Assets or
KCOY; each such policy is valid and enforceable, outstanding and in full force
and effect; except as set forth on Schedule 8.13 hereto, Benedek is the sole
beneficiary of each such policy; no such policy, or the future proceeds thereof,
has been assigned to any other Person; all premiums and other payments due from
Benedek under or on account of any such policy have been paid; to Benedek's
knowledge, there is no act or fact or failure to act which has or might cause
any such policy to be cancelled or terminated; Benedek has given each notice and
presented each claim under each such policy and taken any other required or
appropriate action with respect thereto in due and timely fashion; and each such
policy is adequate for the business in which Benedek is engaged. No notice of
cancellation or non-renewal with respect to, or disallowance of any material
claim under, any insurance policies or binders of insurance which relate to the
KCOY Assets or KCOY has been received by Benedek.
8.14 Litigation. Except as set forth on Schedule 8.14 annexed
hereto and made a part hereof, no action, suit, claim, investigation, proceeding
or controversy, whether legal or administrative or in mediation or arbitration,
is pending or, to Benedek's knowledge, threatened, at law or in equity or
admiralty, before or by any court or Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
against or affecting the KCOY Assets or KCOY or seeking to restrain, prohibit,
invalidate, set aside, rescind, prevent or make unlawful this Agreement or the
carrying out of this Agreement or the transactions contemplated hereby, nor, is
there any basis for any such action, suit, claim, investigation or proceeding.
KCOY is not operating under or subject to, or in default in respect of, any
judgment, order, writ, injunction or decree of any court or any Federal, state,
municipal or other governmental department commission, board, bureau, agency or
instrumentality.
8.15 Compliance with Law. Benedek or BLC has all permits,
licenses, orders and approvals of all Federal, state or local governmental
regulatory bodies required for it to conduct the business of KCOY in all
material respects as conducted on the date of this Agreement. All such permits,
licenses, orders and approvals are in full force and effect and no suspension or
cancellation of any of them is pending or threatened. Benedek is in compliance
in all material respects with each law, rule, ordinance, regulation, order and
decree applicable to the business of KCOY, including, without limitation, laws,
rules and regulations respecting occupational safety, environmental protection
and employment practices. The conduct of the business of KCOY and all assets and
properties utilized by Benedek therein are in conformance in all material
respects with the requirements and regulations of the Occupational Safety and
Health Administration.
30
8.16 Labor. Benedek is not a party to any representation or
labor contract with respect to employees of KCOY. Benedek has not received any
written notice from any labor union or group of employees that such union or
group represents or believes or claims it represents or intends to represent any
of the employees of Benedek at KCOY; to Benedek's knowledge, no strike or work
interruption by Benedek's employees at KCOY is planned, under consideration,
threatened or imminent; and Benedek has not made any loan or given anything of
value, directly or indirectly, to any officer, official, agent or representative
of any labor union or group of employees at KCOY other than salaries and
ordinary course compensation. At no time since its acquisition of KCOY has
Benedek experienced any threats of strikes, work stoppages or demands for
collective bargaining by any union or labor organization or any other group or
other organization of employees at KCOY, any grievances, disputes or
controversies with any union or any other group or any other organization of
employees or any pending or threatened court or arbitration proceedings
involving an employment grievance, dispute or controversy at KCOY. Except as set
forth on Schedule 8.16 annexed hereto and made a part hereof: (i) Benedek is not
delinquent in payments to any of its employees at KCOY for any wages, salaries,
commissions, bonuses or other direct compensation for any services performed by
them to the date hereof or amounts required to be reimbursed to such employees;
(ii) in the event of termination of the employment of any said employees other
than termination of any employee who is a party to an employment agreement with
Benedek, neither AKMG nor Benedek will by reason of anything done prior to the
Closing be liable to any of said employees for so-called "severance pay," "pay
in lieu of notice" or any other payments; (iii) Benedek is in compliance in all
material respects with all Federal, state and local laws and regulations
respecting labor, employment and employment practices, terms and conditions of
employment and wages and hours with respect to its employees at KCOY; and (iv)
there is no unfair labor practice complaint against Benedek pending before the
National Labor Relations Board or any comparable state or local agency.
8.17 Employees. Schedule 8.17 annexed hereto and made a part
hereof is a complete and correct list of the names and current annual salary,
bonus and commission for each current employee of KCOY. Except as set forth on
Schedule 8.17, no current or former employee of KCOY or any relative, associate
or agent of such employee has any interest in any property of Benedek, or is a
party, directly or indirectly, to any contract for employment or otherwise or
any lease or has entered into any transaction with Benedek, including, without
limitation, any contract for the furnishing of services by, or rental of real or
personal property from or to, or requiring payments to, any such employee or
relative, associate or agent. Complete and correct copies of any such contracts
have been delivered to AKMG. Benedek does not have any contract for the future
employment of any employee of KCOY except as may be listed on Schedule 8.17.
8.18 Employee Plans. Schedule 8.18 annexed hereto and made a
part hereof is a complete and correct list of all Employee Plans maintained or
contributed to by Benedek or any ERISA Affiliate of Benedek with respect to its
employees at KCOY, including any employee benefit plans within the meaning of
Section 3(3) of ERISA. True and complete copies of each such Employee Plan have
been heretofore made available to AKMG. All such Employee Plans, related trust
instruments or annuity contracts (or any other funding instruments) are legal,
valid and binding and are in full force and effect, and each such Employee Plan
intended to be qualified under Section 401(a) of the Code is so qualified and
has been so qualified at all times since its inception. All such Employee Plans
have been maintained, in all material respects, in accordance with the
requirements of the Code and ERISA, or any other applicable statute, regulation
or rule. There are no pending claims against any such Employee Plan (other than
routine claims for benefits in accordance with its terms) nor, to the knowledge
of Benedek, has any claim been threatened in writing by any participant thereof
or beneficiary thereunder.
31
8.18.1 No Employee Plan with respect to employees at
KCOY is covered by Title IV of ERISA, Section 302 of ERISA or Section 912 of the
Code.
8.18.2 With respect to all Employee Plans with respect
to employees at KCOY that are defined contribution plans, Benedek and any ERISA
Affiliate of Benedek have made all contributions due thereunder for plan years
prior to the date hereof.
8.18.3 Neither Benedek nor any ERISA Affiliate of
Benedek or any plan fiduciary of any Employee Plan with respect to employees at
KCOY is or has engaged in any transaction in violation of Section 406(a) or
406(b) of ERISA for which no exemption exists under ERISA or under applicable
sections of the Code. Neither Benedek nor any ERISA Affiliate of Benedek, or the
administering committee or trustees of any such Employee Plan has received (i)
notice from the IRS or the Department of Labor of the occurrence of a prohibited
transaction within the meaning of Section 406 of ERISA, or (ii) notice of any
breach of loyalty, prudence, diversification or effectuation within the meaning
of Section 404 of ERISA.
8.18.4 No Employee Plan with respect to employees at
KCOY is a "multiemployer plan" within the meaning of Section 4001(a)(3) of
ERISA.
8.18.5 All Employee Plans with respect to employees at
KCOY are in material compliance with all applicable reporting, disclosure,
filing and other administrative requirements pertaining to employee benefit
plans set forth in the Code and ERISA and rules and regulation promulgated under
either, including, but not limited, to those set forth in Sections 6057, 6058
and 6059 of the Code and applicable rules and regulations thereunder, and in
Sections 101, 102, 103, 104, 105, and 107 of ERISA.
8.18.6 With respect to employees at KCOY, Benedek and
any ERISA Affiliate of Benedek at all times have been in full compliance with
all provisions of the Title X of COBRA, and with the provisions of Part 6 of
Title I of ERISA.
8.18.7 During the twelve-consecutive month period
prior to the date of this Agreement, no steps have been taken to terminate any
Employee Plan with respect to employees at KCOY, and no contribution failure has
occurred with respect to any such Employee Plan sufficient to give rise to a
lien under Section 302(f) of ERISA. No condition exists or event or transaction
has occurred with respect to such an Employee Plan which might result in the
incurrence of any material liability, fine or penalty by either Benedek or any
ERISA Affiliate of Benedek. Neither Benedek nor any ERISA Affiliate of Benedek
has any contingent liability with respect to any post-retirement benefit under
any welfare plan with respect to employees at KCOY, as such term is defined in
Section 3(1) of ERISA, other than liability for continuation coverage described
in Part 6 of Title I of ERISA.
8.18.8 The transactions contemplated by this Agreement
will not result in any payment or series of payments by Benedek to any person of
a parachute payment within the meaning of Section 280G of the Code.
8.19 Environmental Warranties.
8.19.1 All facilities and property (including
underlying groundwater) owned or leased by Benedek with respect to KCOY have
been, and continue to be, owned or leased by Benedek in material compliance with
all Environmental Laws.
32
8.19.2 There have been no past, and there are no
pending (i) claims, complaints, notices or requests for information received by
Benedek with respect to KCOY regarding any alleged violation of any
Environmental Law, or (ii) complaints, notices or inquiries to Benedek with
respect to KCOY regarding potential liability under any Environmental Law.
8.19.3 There have been no releases of Hazardous
Materials at, on or under any property now or previously owned or leased by
Benedek with respect to KCOY.
8.19.4 Benedek has been issued and is in material
compliance with all permits, certificates, approvals, licenses, applicable
comprehensive plans and other authorizations relating to environmental matters
and necessary or desirable for the business of KCOY.
8.19.5 To Benedek's knowledge, no property now owned
or leased by Benedek with respect to KCOY is listed or proposed for listing
(with respect to owned property only) on the National Priorities List pursuant
to CERCLA, on CERCLIS or on any similar state list of sites requiring
investigation or clean-up.
8.19.6 There are no underground storage tanks, active
or abandoned, including petroleum storage tanks, on or under any property now
owned or leased by Benedek with respect to KCOY.
8.19.7 Benedek has not directly transported or
directly arranged for the transportation of any Hazardous Material to any
location which is listed or proposed for listing on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list or which is the
subject of Federal, state or local enforcement actions or other investigations
which may lead to claims against Benedek for any remedial work, damage to
natural resources or personal injury, including claims under CERCLA.
8.19.8 There are no polychlorinated biphenyls or
friable asbestos present at any property now or previously owned or leased by
Benedek with respect to KCOY.
8.19.9 No conditions exist at, on or under any
property now owned or leased by Benedek with respect to KCOY which, with the
passage of time, or the giving of notice or both, would give rise to any
material liability under any Environmental Law or would materially adversely
affect the use of any such property.
8.20 Accuracy of Information. Neither this Agreement nor the
representations and warranties by Benedek contained herein or under any
documents, instruments, certificates or schedules furnished pursuant hereto or
in connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements of fact contained herein and therein not misleading.
9. Certain Covenants and Agreements.
9.1 Control of the Stations. Prior to Closing, Benedek will
have full authority, power and control of the operations of KCOY and over the
persons working at KCOY. Prior to Closing, AKMG will have full authority, power
and control of the operation of KKTV and over the persons working at KKTV.
33
9.2 Access. Between the date hereof and the Closing Date, each
Party will take all action reasonably necessary to enable to the other, its
counsel, accountants and other representatives to discuss the affairs,
properties, business, operations and records of the Transferred Assets at such
times and as often as the other Party may reasonably request with executives,
independent accountants, engineers and counsel of the such Party and each Party
will cause its officers, directors and employees to furnish to the other Party
and its authorized representatives any and all data and information pertaining
to the business and properties of such Party's Station as the other Party or its
authorized representatives shall from time to time request. Unless and until the
exchange contemplated herein has been consummated, each Party shall hold in
confidence all information obtained pursuant to this Agreement, and if such
exchange is not consummated, each Party shall return to the other all sensitive
documents and other sensitive materials received by it hereunder. Such
obligation of confidentiality shall not extend to any information which is shown
to have been (i) previously known to such Party, (ii) generally known to others
engaged in the trade or business of the Parties, (iii) part of public knowledge
or literature or (iv) lawfully received by the Party from a third party (not
including the other Party or any of its attorneys, consultants, accountants or
other representatives or agents). Any investigation made by a Party or its
representatives shall not affect or otherwise diminish or obviate the
representations and warranties made by the other Party in this Agreement and
such Party's right to rely thereon. If the acquisition contemplated herein is
consummated, each Party covenants and agrees that it shall preserve and keep the
records delivered to it hereunder for a period of three years after the Closing
Date and shall make such records available to the other Party or its authorized
representatives as reasonably required in connection with any legal proceedings
against or governmental investigation of such Party or in connection with any
tax examination of such Party, provided that the Party shall not be entitled to
any such records in connection with any dispute between such Party and the other
Party arising out of or relating to this Agreement.
9.3 Interim Operations. From the date hereof until the Closing
Date, except as otherwise consented to or approved in writing by the other Party
or as required by this Agreement, each Party shall conduct the business of the
Stations and use the Transferred Assets only in the ordinary course of business,
consistent with past practices, which shall include compliance in all respects
with all laws, regulations and administrative orders of any Federal, state or
local governmental authority that are applicable to each party with respect to
the Transferred Assets or the operation of the Stations, with the intent of
preserving the ongoing operations of the Stations and the Transferred Assets.
Without limiting the generality of the foregoing, and in each case subject to
the terms of the Time Brokerage Agreements:
9.3.1 Each Party shall: (i) maintain the Transferred
Assets in their present condition (reasonable wear and tear in normal use
excepted); (ii) remove, cure and correct prior to the Closing any violations
under applicable statutes, rules or regulations that render (or if unremedied
would render) inaccurate such Party's representations and warranties contained
in this Agreement or in any certificate delivered by such Party pursuant to this
Agreement; (iii) maintain its existing insurance coverage on the Stations and
the Transferred Assets listed on Schedules 7.13 and 8.13; and (iv) maintain its
books and records in the usual and ordinary manner, on a basis consistent with
prior periods.
9.3.2 Neither Party shall, without the other Party's
prior written consent, create, assume or permit to exist any Lien upon the
Transferred Assets (other than the Liens set forth on Schedules 7.10 and 7.11 or
8.10 and 8.11 hereto and not required to be discharged on or prior to the
Closing Date pursuant to the terms of this Agreement or Liens in existence on
the date hereof which will be removed on or prior to the Closing Date.
34
9.3.3 Neither Party shall sell or agree to sell or
otherwise dispose of any of the Transferred Assets, unless such sale or disposal
occurs in the ordinary course of business, consistent with past practices and
such Transferred Assets are replaced with similar assets of equal or greater
value and utility.
9.3.4 AKMG shall operate KKTV and Benedek shall
operate KCOY in all respects in accordance with the KKTV FCC Licenses and KCOY
FCC Licenses, respectively, and any other material governmental licenses,
permits and other authorizations listed on Schedules 7.4 or 8.4 and will take
all reasonable actions to preclude the suspension, revocation, or adverse
modification of such licenses, permits and other authorizations. The Parties
will not take any action, by commission or omission, which would cause the FCC
or any other governmental authority to institute proceedings for the suspension,
revocation or adverse modification of any of said licenses, permits and
authorizations, or fail to prosecute with due diligence any pending application
to any governmental authority, or take any action within its control which would
result in the Stations being in non-compliance with the requirements of the
Communications Act of 1934, as amended, or the rules and regulations of the FCC
material to the transactions contemplated by this Agreement.
9.4 Employees of the Stations. Except as contemplated by the
Time Brokerage Agreements, for a period commencing on the Commencement Date and
continuing for one year after the Closing Date, neither AKMG nor Benedek will
directly or indirectly solicit for employment any of the employees of KKTV or
KCOY, respectively. AKMG acknowledges that the current general manager of KCOY
may be retained by Benedek during the term of the Time Brokerage Agreements and
after the Closing, and Benedek acknowledges that the current general manager of
KKTV may be retained by AKMG during the term of the Time Brokerage Agreements
and after the Closing.
9.5 Compliance. Each Party shall use its best efforts to take
or cause to be taken all action and do or cause to be done all things necessary,
proper or advisable to consummate the transactions contemplated by this
Agreement, including, without limitation, to obtain all consents, approvals and
authorizations of third parties and to make all filings with and give all
notices to third parties which may be necessary or required in order to
effectuate the transactions contemplated hereby.
9.6 Compliance with Laws. Each Party will comply in all
material respects with all rules and regulations of the FCC, and with all other
applicable laws, rules, ordinances and regulations to which it is subject. Upon
receipt of notice of violation of any of such laws, rules, ordinances and
regulations, such Party shall use its reasonable best efforts to contest in good
faith or to cure such violation prior to the Closing Date. Each Party will file
with the FCC, when due, all ownership reports, renewal applications, financial
reports and other documents required to be filed between the date of this
Agreement and the Closing Date, and all such reports, applications and documents
will be true and correct to the best of such Party's knowledge and will comply
with the Communications Act of 1934, as amended, and the rules and regulations
of the FCC.
9.7 No Solicitation. AKMG shall not, directly or indirectly,
(i) solicit, elicit, encourage or initiate any discussions or negotiations with
or provide any information to any person (other than Benedek, or representatives
or associates of Benedek) concerning or in connection with sale of the KKTV
Assets, or (ii) except as required by law or in connection with the transactions
contemplated by this Agreement, disclose any information not customarily
disclosed to any Person concerning the business and assets of KKTV, or afford to
any other Person access to the properties, books and records of KKTV or
35
otherwise assist any Person in connection with any of the foregoing, and AKMG
shall promptly notify Benedek of any substantial proposal, inquiry or offer
relating to any of the foregoing matters. Benedek shall not, directly or
indirectly, (i) solicit, elicit, encourage or initiate any discussions or
negotiations with or provide any information to any person (other than AKMG, or
representatives or associates of AKMG) concerning or in connection with sale of
the KCOY Assets, or (ii) except as required by law or in connection with the
transactions contemplated by this Agreement, disclose any information not
customarily disclosed to any Person concerning the business and assets of KCOY,
or afford to any other Person access to the properties, books and records of
KCOY or otherwise assist any Person in connection with any of the foregoing, and
Benedek shall promptly notify AKMG of any substantial proposal, inquiry or offer
relating to any of the foregoing matters.
9.8 Payment of Taxes. Except as otherwise provided in the Time
Brokerage Agreements, AKMG shall be responsible for all Federal, state, county,
local, income, property, sales, use, intangibles and other taxes attributable to
the operation or ownership of KKTV and the KKTV Assets and Benedek shall be
responsible for all Federal, state, county, local, income, property, sales, use,
intangibles and other taxes attributable to the operation or ownership of KCOY
and the KCOY Assets for the period between the date hereof and the Closing. Each
of AKMG and Benedek shall pay or otherwise discharge 50% of all sales and use
taxes and transfer, deed, documentary stamp and other recordation taxes or
charges arising out of the transfer of the KKTV Assets and KCOY Assets,
respectively.
9.9 FCC Consent. The Parties shall diligently prosecute the FCC
Applications and use all reasonable efforts to obtain the FCC Consents as
promptly and expeditiously as possible. The Parties shall not intentionally take
or omit to take any action that will cause the FCC to deny, delay or fail to
approve the FCC Applications or cause the FCC Consents not to become Final
Orders.
9.10 Time Brokerage Agreements. Anything to the contrary
contained in this Agreement notwithstanding, neither Party shall be deemed to
have breached or failed to comply with any of its covenants under this Agreement
with respect to the Station owned by it if such breach or failure is due or
caused by any act, omission or instruction of the other Party under or in
connection with the applicable Time Brokerage Agreement or any activities or
transactions in furtherance thereof or in connection therewith.
10. Conditions of Closing.
10.1 Obligation of Benedek to Close. The obligation of Benedek
to close hereunder shall be subject to the fulfillment and satisfaction, prior
to or at the Closing, of the following conditions or the written waiver thereof
by Benedek:
10.1.1 Representations. The representations and
warranties of AKMG in this Agreement shall be true and correct when made, except
where the failure to be true and correct would not have a Material Adverse
Effect upon KKTV or upon the ability of AKMG to consummate the transactions
contemplated hereby, and, except for changes permitted by this Agreement and
representations and warranties made as of a specific date, shall also be true
and correct on and as of the Closing Date, except where the failure to be true
and correct would not have a Material Adverse Effect upon KKTV or upon the
ability of AKMG to consummate the transactions contemplated hereby, and except
in each case for changes or failures to be true and correct arising out of in
connection with or as a result of any matter or transaction contemplated by the
Time Brokerage Agreement pertaining to KKTV or any act or omission or
instruction
36
by Benedek in the course of its authority or activities under or in connection
with such Time Brokerage Agreement; and Benedek shall have received a
certificate to that effect dated the Closing Date and executed by an appropriate
officer of AKMG.
10.1.2 Covenants. Each of the agreements and covenants
of AKMG to be performed under this Agreement at or prior to the Closing Date
shall have been duly performed in all material respects, in each case except for
failures arising out of, in connection with or as a result of any matter or
transaction contemplated by the Time Brokerage Agreement pertaining to KKTV or
any act or omission or instruction by Benedek in the course of its authority or
activities under or in connection with such Time Brokerage Agreement; and
Benedek shall have received a certificate to that effect dated the Closing Date
and executed by an appropriate officer of AKMG.
10.1.3 No Injunction. No injunction or restraining
order shall be in effect to forbid or enjoin the consummation of the
transactions contemplated by this Agreement and no Federal, state or local
statute, rule or regulation shall have been enacted which prohibits, restricts
or delays the consummation hereof.
10.1.4 Consents. All necessary consents of any Persons
to the transfer of AKMG's interest in the contracts, agreements and commitments
constituting Assumed Liabilities that are set forth on Schedule 10.1.4 shall
have been obtained and delivered to Benedek.
10.1.5 KKTV FCC Licenses. AKMG shall be the holder of
the KKTV FCC Licenses and all other material governmental licenses, permits and
other authorizations listed on Schedule 7.4, and there shall not have been any
modification of any of such licenses, permits and other authorizations which has
a Material Adverse Effect on KKTV or the conduct of its business and operations.
No proceeding shall be pending (other than rule making proceedings of general
applicability to the broadcast industry) which seeks or the effect of which
could be to revoke, cancel, fail to renew, suspend or modify materially and
adversely any of the KKTV FCC Licenses or any other material governmental
licenses, permits or other authorizations listed on Schedule 7.4.
10.1.6 Governmental Consents. All consents,
authorizations, orders or approvals of, and filings or negotiations with, any
Federal, state, local or foreign governmental agency, commission, board or other
regulatory body (including as contemplated by Section 6) which are required for
or in connection with the execution, delivery and performance of this Agreement
by AKMG and the consummation of the transactions contemplated hereby, and in
order to permit or enable Benedek to conduct after the Closing a business
substantially similar to KKTV as conducted by AKMG as of the date hereof, shall
have been duly obtained or made.
10.1.7 Instruments of Transfer. Benedek shall have
received the deeds, bills of sale, endorsements, assignments, drafts, checks and
other documents of transfer, conveyance and assignment contemplated by Section
2.5 valid to transfer all of AKMG's right, title and interest in and to the KKTV
Assets to Benedek and to vest in Benedek good, marketable and insurable title to
the KKTV Assets, subject only to the Liens set forth on Schedules 7.10 and 7.11
hereto and not required to be discharged (in the manner herein provided) on or
prior to the Closing Date pursuant to the terms of this Agreement.
10.1.8 Assumption Agreements. AKMG shall have executed
and delivered the instruments of assumption contemplated by Section 3.2 hereof.
37
10.1.9 Books of Account. Benedek shall have received
AKMG's books of account, records, leases, indentures, contracts, agreements,
evidences of indebtedness, securities, correspondence and other documents
pertaining to the KKTV Assets and KKTV. Unless otherwise requested by Benedek,
delivery of the foregoing shall not be effected by physical delivery at the
Closing but by surrendering access to the premises containing the foregoing to
Benedek.
10.1.10 Resolutions. Benedek shall have received a
certified copy of resolutions duly adopted by the board of directors of AKMG
authorizing and approving the transfer of the KKTV Assets and performance by
AKMG of its obligations hereunder and the other documents and instruments to be
executed and delivered in connection herewith.
10.1.11 Opinions of Counsel to AKMG. Benedek shall
have received opinions of ▇▇▇▇▇▇ & ▇▇▇▇ PC, counsel to AKMG, ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, FCC counsel to AKMG, and local counsel to AKMG in
Colorado, dated the Closing Date, addressed to Benedek and, if so requested by
Benedek, to lenders to Benedek under its Amended and Restated Credit Agreement
dated as of December 17, 1997, covering the matters set forth in Exhibits C-1,
C-2 and C-3, respectively, attached hereto, which opinions shall be in form and
substance acceptable to Benedek's counsel.
10.1.12 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Compliance. If applicable,
the parties shall have filed with the United States Federal Trade Commission and
the Antitrust Division of the United States Department of Justice complete and
accurate notification and report forms with respect to the transactions
contemplated hereby pursuant to the HSR Act. With respect to the HSR Act,
neither such agency shall have instituted or threatened to institute an action
in connection with the transactions contemplated by this Agreement and all
waiting periods required to expire under the HSR Act, including any extension
thereof, shall have expired or been terminated prior to the Closing Date.
10.1.13 Environmental Condition. If Benedek elects
within 30 days after the date of this Agreement to conduct an environmental
audit of the real property owned or leased by AKMG with respect to KKTV, Benedek
shall have received from a qualified inspector selected by Benedek, a
certification substantially to the effect that no environmental conditions exist
at any of the real property owned or leased by AKMG with respect to KKTV which
could reasonably be expected to result in remediation costs in excess of
$25,000; provided, however, that in the event that such estimated remediation
costs exceed $25,000, this Section 10.1.13 shall be deemed satisfied if AKMG
agrees to pay any remediation costs in excess of $25,000 and makes arrangements
reasonably satisfactory to Benedek for the payment thereof; and further provided
that, with respect to any real property leased by AKMG which is subject to any
such remediation, AKMG shall have received any required consent of the owner of
the property.
10.1.14 Further Documents. Benedek shall have received
from AKMG such further certificates and documents relating to KKTV as shall have
been reasonably requested by Benedek.
10.2 Obligation of AKMG to Close. The obligation of AKMG to
close hereunder shall be subject to the fulfillment and satisfaction, prior to
or at the Closing, of the following conditions or the written waiver thereof by
AKMG:
10.2.1 Representations. The representations and
warranties of Benedek in this Agreement shall be true and correct when made,
except where the failure to be true and correct would not have a Material
Adverse Effect upon KCOY or upon the ability of Benedek to consummate the
transactions
38
contemplated hereby, and, except for changes permitted by this Agreement and
representations and warranties made as of a specific date, shall also be true
and correct on and as of the Closing Date, except where the failure to be true
and correct would not have a Material Adverse Effect upon KCOY or upon the
ability of Benedek to consummate the transactions contemplated hereby, and
except in each case for changes or failures to be true and correct arising out
of in connection with or as a result of any matter or transaction contemplated
by the Time Brokerage Agreement pertaining to KCOY or any act or omission or
instruction by AKMG in the course of its authority or activities under or in
connection with such Time Brokerage Agreement; and AKMG shall have received a
certificate to that effect dated the Closing Date and executed by an appropriate
officer of Benedek.
10.2.2 Covenants. Each of the agreements and covenants
of Benedek to be performed under this Agreement at or prior to the Closing Date
shall have been duly performed in all material respects, in each case except for
failures arising out of, in connection with or as a result of any matter or
transaction contemplated by the Time Brokerage Agreement pertaining to KCOY or
any act or omission or instruction by AKMG in the course of its authority or
activities under or in connection with such Time Brokerage Agreement; and AKMG
shall have received a certificate to that effect dated the Closing Date and
executed by an appropriate officer of Benedek.
10.2.3 No Injunction. No injunction or restraining
order shall be in effect to forbid or enjoin the consummation of the
transactions contemplated by this Agreement and no Federal, state, local or
foreign statute, rule or regulation shall have been enacted which prohibits,
restricts or delays the consummation hereof.
10.2.4 Consents. All necessary consents of any Persons
to the transfer of Benedek's interest in the contracts, agreements and
commitments constituting Benedek Assumed Liabilities that are set forth on
Schedule 10.2.4 shall have been obtained and delivered to AKMG.
10.2.5 KCOY FCC Licenses. BLC shall be the holder of
the KCOY FCC Licenses and all other material governmental licenses, permits and
other authorizations listed on Schedule 8.4, and there shall not have been any
modification of any of such licenses, permits and other authorizations which has
a Material Adverse Effect on KCOY or the conduct of its business and operations.
No proceeding shall be pending (other than rule making proceedings of general
applicability to the broadcast industry) which seeks or the effect of which
could be to revoke, cancel, fail to renew, suspend or modify materially and
adversely any of the KCOY FCC Licenses or any other material governmental
licenses, permits or other authorizations listed on Schedule 8.4.
10.2.6 Governmental Consents. All consents,
authorizations, orders or approvals of, and filings or negotiations with, any
Federal, state, local or foreign governmental agency, commission, board or other
regulatory body (including as contemplated by Section 6) which are required for
or in connection with the execution, delivery and performance of this Agreement
by Benedek and the consummation of the transactions contemplated hereby, and in
order to permit or enable AKMG to conduct after the Closing a business
substantially similar to KCOY as conducted by Benedek as of the date hereof,
shall have been duly obtained or made.
10.2.7 Instruments of Transfer. AKMG shall have
received the deeds, bills of sale, endorsements, assignments, drafts, checks and
other documents of transfer, conveyance and assignment contemplated by Section
2.5 valid to transfer all of Benedek's right, title and interest in and to the
KCOY
39
Assets to AKMG and to vest in AKMG good, marketable and insurable title to the
KCOY Assets, subject only to the Liens set forth on Schedules 8.10 and 8.11
hereto and not required to be discharged (in the manner herein provided) on or
prior to the Closing Date pursuant to the terms of this Agreement.
10.2.8 Assumption Agreements. Benedek shall have
executed and delivered the instruments of assumption contemplated by Section 3.2
hereof.
10.2.9 Books of Account. AKMG shall have received
Benedek's books of account, records, leases, indentures, contracts, agreements,
evidences of indebtedness, securities, correspondence and other documents
pertaining to the KCOY Assets and KCOY. Unless otherwise requested by AKMG,
delivery of the foregoing shall not be effected by physical delivery at the
Closing but by surrendering access to the premises containing the foregoing to
AKMG.
10.2.10 Resolutions. AKMG shall have received a
certified copy of resolutions duly adopted by the board of directors of Benedek
authorizing and approving the transfer of the KCOY Assets and performance by
Benedek of its obligations hereunder and the other documents and instruments to
be executed and delivered in connection herewith.
10.2.11 Opinion of Counsels to Benedek. AKMG shall
have received an opinion of Shack & ▇▇▇▇▇▇, P.C., counsel to Benedek, ▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, FCC counsel to Benedek, and ▇▇▇▇ & ▇▇▇▇▇, local counsel to Benedek in
California, dated the Closing Date, addressed to AKMG, covering the matters set
forth in Exhibits ▇-▇, ▇-▇ and D-3, respectively, attached hereto, which
opinions shall be in form and substance acceptable to AKMG's counsel.
10.2.12 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. If applicable, the parties
shall have filed with the United States Federal Trade Commission and the
Antitrust Division of the United States Department of Justice complete and
accurate notification and report forms with respect to the transactions
contemplated hereby pursuant to the HSR Act. With respect to the HSR Act,
neither such agency shall have instituted or threatened to institute an action
in connection with the transactions contemplated by this Agreement and all
waiting periods required to expire under the HSR Act, including any extension
thereof, shall have expired or been terminated prior to the Closing Date.
10.2.13 Environmental Condition. If AKMG elects within
30 days after the date of this Agreement to conduct an update to the
environmental audit of the real property owned or leased by Benedek with respect
to KCOY, AKMG shall have received from a qualified inspector selected by AKMG,
an update to the certification done by Professional Service Industries, Inc.
substantially to the effect that no environmental conditions exist at any of the
real property owned or leased by Benedek with respect to KCOY which could
reasonably be expected to result in remediation costs in excess of $25,000;
provided, however, that in the event that such estimated remediation costs
exceed $25,000, this Section 10.2.13 shall be deemed satisfied if Benedek agrees
to pay any remediation costs in excess of $25,000 and makes arrangements
reasonably satisfactory to AKMG for the payment thereof; and further provided
that, with respect to any real property leased by Benedek which is subject to
any such remediation, Benedek shall have received any required consent of the
owner of the property.
10.2.14 Further Documents. AKMG shall have received
from Benedek such further certificates and documents relating to KCOY as shall
have been reasonably requested by AKMG.
40
10.2.15 Receipt of Purchase Price Payable at Closing.
AKMG shall have received a certified or bank cashier's check or wire transfer in
the amount of the Closing Payment to be paid at the Closing.
11. Remedies for Breach.
11.1 Declining to Close. If a Party shall be entitled to
decline to close, and shall decline to close, the transactions contemplated by
this Agreement, such Party shall have no liability to the other Party under or
in any way by reason hereof and such Party shall, subject to the terms and
conditions of this Agreement, have all such rights and remedies against the
other Party as may be available to it in law or equity or otherwise.
11.2 Election to Close. If a Party shall be entitled to decline
to close the transactions contemplated by this Agreement but such Party shall
elect nevertheless to close, such Party shall not be deemed to have waived any
claims of any nature arising from the failure of the other Party to comply with
any of the terms and conditions of this Agreement and such Party shall, subject
to the terms and conditions of this Agreement, have all such rights and remedies
against the other Party as may be available to it at law or in equity or
otherwise. If such Party elects to close the transactions contemplated by this
Agreement and the other Party wrongfully refuses to do so, or if the other Party
fails, or if a failure by the other Party is threatened, to comply with any of
their covenants and agreements contained in this Agreement, then, in addition to
all other remedies which may be available to it, such Party shall be entitled to
injunctive and other equitable relief, including, without limitation, specific
performance, and shall be entitled to recover from the other Party its loss,
costs and expenses, including reasonable attorneys' fees incurred by such Party
in securing such injunctive or equitable relief.
11.3 Remedies Cumulative. Except as otherwise set forth in
Section 11.3 hereof, the specific remedies to which any party may resort under
the terms of this Agreement are cumulative and are not intended to be exclusive
of any other remedies or means of redress to which such party may lawfully be
entitled in case of any breach, threatened breach or failure of observance or
performance of any representation, warranty, covenant, agreement or commitment
made hereunder or relating hereto or by reason of any such representation,
warranty, covenant, agreement or commitment being untrue or incorrect.
12. Termination Rights. This Agreement may be terminated by either
Party, if not then in material default, upon written notice to the other upon
the occurrence of any of the following:
12.1 If the exchange of the Transferred Assets pursuant to this
Agreement shall not have been effected within nine months after the date that
the FCC accepts the latter of the two FCC Applications for filing;
12.2 If any Party defaults in any material respect in the
observance or in the due and timely performance of any of its covenants herein
contained other than the obligation to close on the Closing Date; provided,
however, that termination pursuant to this paragraph shall not be effective
unless the terminating party shall have given to the Party in default at least
30 days advance notice of its claim of default so as to afford the other Party
the opportunity to cure; or
12.3 If at the Closing any of the conditions precedent to the
obligations of the Parties set forth in this Agreement have not been satisfied
or waived by the respective Party.
41
13. Indemnification of the Parties.
13.1 Indemnification by AKMG. AKMG shall defend and promptly
indemnify Benedek, and save and hold it harmless from, against, for and in
respect of and pay any and all damages, losses, obligations, liabilities,
claims, encumbrances, deficiencies, costs and expenses, including, without
limitation, reasonable attorneys' fees and other costs and expenses incident to
any action, investigation, claim or proceeding (all hereinafter collectively
referred to as "Losses") suffered, sustained, incurred or required to be paid by
Benedek by reason of: (i) any and all obligations and liabilities of AKMG, other
than the Assumed KKTV Liabilities; (ii) any breach or failure of observance or
performance of any covenant, agreement or commitment made by AKMG hereunder or
under any document or instrument relating hereto or executed pursuant hereto;
(iii) the operation of KKTV by AKMG for all periods prior to the Closing (other
than the Assumed KKTV Liabilities); (iv) any representation or warranty by AKMG
contained herein being untrue or incorrect in any respect; (v) any act, omission
or instruction by AKMG under or in connection with the Time Brokerage Agreement
pertaining to KCOY or any activities or transactions in furtherance thereof or
in connection therewith; or (vi) any liability or obligation of AKMG for
Federal, state, local or other taxes; provided, however, that AKMG shall be
required to indemnify and hold Benedek harmless under clause (iv) of this
Section 13.1 only if and to the extent the aggregate amount of such Losses
exceeds $100,000. For purposes of determining whether an event under clause (iv)
of this Section 13.1 has occurred for which indemnification may be sought, any
requirement in any representation or warranty contained herein that an event or
fact be material or have a Material Adverse Effect on KKTV in order for such
event or fact to constitute a misrepresentation or a breach of such warranty or
representation shall be disregarded in determining if the aggregate Losses
resulting from all such breaches and misrepresentations exceeds $100,000.
13.2 Indemnification by Benedek. Benedek shall defend and
promptly indemnify AKMG, and save and hold it harmless from, against, for and in
respect of and pay any and all Losses suffered, sustained, incurred or required
to be paid by AKMG by reason of: (i) any and all obligations and liabilities of
Benedek, other than the Assumed KCOY Liabilities; (ii) any breach or failure of
observance or performance of any covenant, agreement or commitment made by
Benedek hereunder or under any document or instrument relating hereto or
executed pursuant hereto; (iii) the operation of KCOY by Benedek for all periods
prior to the Closing (other than the Assumed KCOY Liabilities); (iv) any
representation or warranty by Benedek contained herein being untrue or incorrect
in any respect; (v) any act, omission or instruction by Benedek under or in
connection with the Time Brokerage Agreement pertaining to KKTV or any
activities or transactions in furtherance thereof or in connection therewith; or
(vi) any liability or obligation of Benedek for Federal, state, local or other
taxes; provided, however, that Benedek shall be required to indemnify and hold
AKMG harmless under clause (iv) of this Section 13.2 only if the aggregate
amount of such Losses exceeds $100,000. For purposes of determining whether an
event under clause (iv) of this Section 13.2 has occurred for which
indemnification may be sought, any requirement in any representation or warranty
contained herein that an event or fact be material or have a Material Adverse
Effect on KCOY in order for such event or fact to constitute a misrepresentation
or a breach of such warranty or representation shall be disregarded in
determining if the aggregate Losses resulting from all such breaches and
misrepresentations exceeds $100,000.
13.3 Procedures. For purposes of this Section, the Party
entitled to indemnification shall be known as the "Injured Party" and the party
required to indemnify shall be known as the "Other Party." In the event that the
Other Party shall be obligated to the Injured Party pursuant to this Section or
in the event that a suit, action, investigation, claim or proceeding is begun,
made or instituted as a result of which the
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Other Party may become obligated to the Injured Party hereunder, the Injured
Party shall give prompt written notice to the Other Party of the occurrence of
such event. The Other Party agrees to defend, contest or otherwise protect
against any such suit, action, investigation, claim or proceeding with counsel
chosen by the Other Party at the Other Party's own cost and expense. The Other
Party may settle or compromise any such suit, action, investigation, claim or
proceeding at its sole cost and expense; provided, that the Other Party shall
have obtained from any third party claimant an unconditional release of the
Injured Party. The Injured Party shall have the right but not the obligation to
participate at its own expense in the defense thereof by counsel of its own
choice. In the event that the Other Party fails timely to defend, contest or
otherwise protect against any such suit, action, investigation, claim or
proceeding, the Injured Party shall have the right to defend, contest or
otherwise protect against the same and may make any compromise or settlement
thereof and recover the entire cost thereof from the Other Party, including,
without limitation, reasonable attorneys' fees, disbursements and all amounts
paid as a result of such suit, action, investigation, claim or proceeding or
compromise or settlement thereof.
13.4 Limitation. Except for any claim for indemnification
arising from a claim by the United States of America, the State of California,
the State of Colorado, or any other governmental unit, body or agency with
taxing authority relating to taxes or interest or penalties in connection
therewith, no party shall be entitled to indemnification hereunder with respect
to the breach of any representation or, warranty contained herein unless such
claim for indemnification is asserted in writing to the party from whom
indemnification is sought within one year after the Closing Date.
13.5 Survival of Representations and Warranties.
Notwithstanding any right of a Parties and its representatives fully to
investigate the affairs of the other Party and the Stations and, except as
otherwise provided in Section 11.2 hereof, notwithstanding any knowledge of
facts determined or determinable by a Party and its representatives pursuant to
such investigation or right of investigation, each Party has the right to rely
fully upon the representations, warranties, covenants and agreements of the
other Party contained in this Agreement. Subject to Section 13.4 hereof, all
such representations warranties, covenants and agreements shall survive the
execution and delivery hereof and the Closing hereunder.
14. Brokers. The Parties covenant and represent to each other that they
had no dealings with any broker or finder in connection with this Agreement or
the transactions contemplated hereby and no broker, finder or other Person is
entitled to receive any broker's commissions or finder's fee or similar
compensation in connection with any such transaction. Each of the parties agrees
to defend, indemnify and hold harmless the other from, against, for and in
respect of any and all losses sustained by the other as a result of any
liability or obligation to any broker or finder on the basis of any arrangement,
agreement or acts made by or on behalf of such party with any Person whatsoever.
15. Miscellaneous.
15.1 Entire Agreement. This Agreement constitutes the entire
agreement of the parties (and supersedes any prior understanding of the parties)
with respect to the subject matter hereof. The representations, warranties,
covenants and agreements set forth in this Agreement and in any financial
statements, schedules or exhibits delivered pursuant hereto constitute all the
representations, warranties, covenants and agreements of the parties hereto and
upon which the parties have relied and except as may be specifically provided
herein, no change, modification, amendment, addition or termination of this
Agreement or any part thereof shall be valid unless in writing and signed by or
on behalf of the party to be charged therewith.
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15.2 Notices. Any and all notices or other communications or
deliveries required or permitted to be given or made pursuant to any of the
provisions of this Agreement shall be deemed to have been duly given or made for
all purposes if sent by certified or registered mail, return receipt requested
and postage prepaid, hand delivery or overnight delivery service or sent by
telephone facsimile as follows:
If to Benedek, at:
Benedek Broadcasting Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
With a copy to:
Shack & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to AKMG, at:
AK Media Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
or at such other address as any party may specify by notice given to other party
in accordance with this Section. The date of the giving of any notice sent by
mail shall be three business days following the date of the posting of the mail,
if delivered in person, the date delivered in person or the next business day
following delivery to an overnight delivery service or the date sent by
telephone facsimile.
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15.3 Public Announcement. Except for any disclosures or
announcements which a Party shall be required to make pursuant to the
Communications Act of 1934, as amended, or the rules and regulations of the FCC,
or disclosures or announcements required to be made pursuant to the rules and
regulations of the Securities and Exchange Commission or any other Federal or
state governmental agency, the Parties will jointly prepare and determine the
timing of any press release or other announcement to the public (including any
announcement to the employees of the Stations) concerning the execution of this
Agreement and the transactions contemplated herein. Except as provided for in
the preceding sentence, no Party hereto will issue any press release or make any
other public announcement relating to the execution of this Agreement or the
transactions contemplated herein, except that any party may make any disclosure
required to be made by it under applicable law if it determines in good faith
that it is appropriate to do so and gives prior notice to the other party
hereto.
15.4 No Waiver. No waiver of the provisions hereof shall be
effective unless in writing and signed by the party to be charged with such
waiver. No waiver shall be deemed a continuing waiver in respect of any
subsequent breach or default, either of similar or different nature, unless
expressly so stated in writing.
15.5 Governing Law. This Agreement shall be governed,
interpreted and construed in accordance with the laws of the State of New York
applicable to contracts to be performed entirely within that State. Should any
clause, section or part of this Agreement be held or declared to be void or
illegal for any reason, all other clauses, sections or parts of this Agreement
which can be effected without such illegal clause, section or part shall
nevertheless continue in full force and effect.
15.6 Consent to Jurisdiction. Each Party hereby consents to the
jurisdiction and venue of the Courts of the State of New York located in the
County of New York, the United States District Court for the Southern District
of New York and the District Court of the District of Columbia with respect to
any matter relating to this Agreement and performance of the parties'
obligations hereunder, the documents and instruments executed and delivered
concurrently herewith or pursuant hereto and performance of the parties'
obligations thereunder and each Party hereby consents to the personal
jurisdiction of such courts and shall subject itself to such personal
jurisdiction. Any action, suit or proceeding relating to such matters shall be
commenced, pursued, defended and resolved only in such courts and any
appropriate appellate court having jurisdiction to hear an appeal from any
judgment entered in such courts. Service of process in any action, suit or
proceeding relating to such matters may be made and served within or outside the
State of New York, County of New York, the Southern District of New York or the
District of Columbia by registered or certified mail to the parties and their
representatives at their respective addresses specified in Section 15.2 hereof,
provided that a reasonable time, not less than 30 days, is allowed for response.
Service of process may also be made in such other manner as may be permissible
under the applicable court rules.
15.7 Expenses. Except as otherwise provided herein, the Parties
shall each bear their own costs and expenses in connection with this
transaction.
15.8 Binding Agreement. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that no party may assign any of its rights or
delegate any of its duties under this Agreement without the prior written
consent of the other party hereto.
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15.9 Headings. The headings or captions under sections of this
Agreement are for convenience and reference only and do not in any way modify,
interpret or construe the intent of the parties or effect any of the provisions
of this Agreement.
15.10 Counterparts. This Agreement may be executed in one or
more counterparts each of which when taken together shall constitute one
agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed on the date and year first above written.
BENEDEK BROADCASTING CORPORATION
By: /s/ K. ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: K. ▇▇▇▇▇ ▇▇▇▇▇
Title: President
BENEDEK LICENSE CORPORATION
By: /s/ K. ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: K. ▇▇▇▇▇ ▇▇▇▇▇
Title: President
AK MEDIA GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary/Treasurer
47