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ASSET PURCHASE AGREEMENT
DATED AS OF JUNE 23, 2000
BY AND AMONG
LAKELAND LEDGER PUBLISHING CORPORATION,
NYT MANAGEMENT SERVICES,
NYT FLORIDA HOLDINGS, INC.,
THE HOUMA COURIER NEWSPAPER CORPORATION,
AND
TRANSWESTERN PUBLISHING COMPANY, LLC
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TABLE OF CONTENTS
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Page No.
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ARTICLE I.
DEFINITIONS....................................................................1
1.1 Certain Definitions...........................................1
1.2 Certain Additional Definitions................................5
ARTICLE II.
PURCHASE AND SALE OF ASSETS....................................................8
2.1 Purchase and Sale of Purchased Assets.........................8
2.2 Assumption of Liabilities....................................11
2.3 Consideration for Purchased Assets...........................12
2.4 Further Assurances...........................................14
2.5 Assignment of Business Contracts and Business Licenses.......15
ARTICLE III.
THE CLOSING...................................................................15
3.1 Time and Place...............................................15
3.2 Closing Deliveries of the Sellers............................15
3.3 Closing Deliveries of the Purchaser..........................17
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS.................................18
4.1 Organization.................................................18
4.2 Authority....................................................18
4.3 No Violation; Third Party Consents...........................18
4.4 Government Consents..........................................19
4.5 Tangible Property............................................19
4.6 Intellectual Property and Proprietary Rights.................20
4.7 Business Contracts...........................................20
4.8 Business Licenses............................................21
4.9 Business Employees...........................................21
4.10 Employee Benefit Plans.......................................21
4.11 Financial Statements.........................................22
4.12 Real Property................................................23
4.13 Litigation; Governmental Orders..............................24
4.14 Compliance with Laws.........................................24
4.15 Environmental Matters........................................24
4.16 Insurance....................................................25
4.17 Transactions with Affiliates.................................25
4.18 Taxes........................................................25
4.19 Brokers......................................................26
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER...............................26
5.1 Organization.................................................26
5.2 Authority....................................................26
5.3 No Violation; Third Party Consents...........................27
5.4 Governmental Consents........................................27
5.5 Litigation...................................................28
5.6 Brokers......................................................28
5.7 Financing....................................................28
5.8 Closing Date.................................................28
ARTICLE VI.
COVENANTS AND AGREEMENTS......................................................29
6.1 Conduct of Business..........................................29
6.2 Access and Information.......................................29
6.3 Confidentiality..............................................30
6.4 Further Actions..............................................30
6.5 Fulfillment of Conditions by the Sellers.....................31
6.6 Fulfillment of Conditions by the Purchaser...................31
6.7 Publicity....................................................32
6.8 Transaction Costs............................................32
6.9 Employees and Employee Benefit Matters.......................32
6.10 Retention of and Access to Records...........................33
6.11 Notification of Certain Matters..............................34
6.12 Transition Facilities........................................34
6.13 Non-Competition..............................................36
6.14 Conditions to Release of the Real Property Escrow Amount.....38
ARTICLE VII.
CLOSING CONDITIONS............................................................39
7.1 Conditions to Obligations of the Purchaser...................39
7.2 Conditions to Obligations of the Sellers.....................40
ARTICLE VIII.
TERMINATION...................................................................41
8.1 Termination..................................................41
8.2 Effect of Termination........................................41
ARTICLE IX.
MISCELLANEOUS.................................................................42
9.1 Indemnification..............................................42
9.2 Notices......................................................44
9.3 Attorneys' Fees and Costs....................................45
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9.4 Assignment...................................................45
9.5 Amendments and Waiver; Exclusive Remedies....................46
9.6 Entire Agreement.............................................46
9.7 Representations and Warranties Exclusive.....................46
9.8 No Third Party Beneficiary...................................47
9.9 Governing Law................................................47
9.10 Neutral Construction.........................................47
9.11 Severability.................................................47
9.12 Bulk Sales Laws..............................................47
9.13 Heading; Interpretation; Schedules and Exhibits..............47
9.14 Waiver of Jury Trial.........................................48
9.15 Counterparts.................................................48
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List of Schedules and Exhibits
Schedule Description
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1.1(q) List of Executives - Knowledge of Sellers
2.1(b)(i) Owned Real Property
2.1(b)(ii) Gainesville Site
2.1(b)(ix) Intellectual Property
2.1(b)(x) Tangible Personal Property
2.1(c)(vi) Nontransferable Business Contracts
2.1(c)(vii) Nontransferable Business Licenses
2.1(c)(x) Excluded Trademarks
4.3 Third Party Consents - Sellers
4.4 Government Consents - Sellers
4.5(a) Encumbrances
4.7(a) Material Business Contracts
4.7(b) Material Business Contracts - Exceptions to Enforceability
4.8 Material Business Licenses
4.9 Business Employees
4.10(a) Benefit Plans
4.11(a) Financial Statements
4.11(b) Change in Business
4.13 Litigation; Governmental Orders - Sellers
4.14 Exceptions to Compliance with Laws
4.15 Environmental Matters
4.17 Transactions with Affiliates
5.3 Third Party Consents - Purchaser
5.4 Government Consents - Purchaser
5.5 Litigation - Purchaser
6.1 Conduct of Business
6.12(b) Description of Transition Premises
*********************
Exhibit A Grant Deeds
Exhibit B Assignment of Lease
Exhibit C Bills of Sale
Exhibit D Assignments and Assumptions
Exhibit E Assignments of Proprietary Rights
Exhibit F Escrow Agreement
Exhibit G Officer's Certificates of Sellers
Exhibit H Secretary's Certificates of Sellers
Exhibit I Opinion of Counsel to The New York Times Company
Exhibit J Officer's Certificate of Purchaser
Exhibit K Secretary's Certificate of Purchaser
Exhibit L Opinion of Counsel to Purchaser
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ASSET PURCHASE AGREEMENT (the "Agreement") dated as of June 23, 2000, by
and among Lakeland Ledger Publishing Corporation, a Florida corporation
("Lakeland"); NYT Management Services, a Massachusetts business trust ("NYTMS");
NYT Florida Holdings, Inc., a Delaware corporation ("Florida Holdings"); The
Houma Courier Newspaper Corporation, a Delaware corporation ("Houma"; Lakeland,
NYTMS, Florida Holdings and Houma are each referred to herein as a "Seller" and,
collectively, as the "Sellers"); and TransWestern Publishing Company, LLC, a
Delaware limited liability company (the "Purchaser").
WHEREAS, each Seller has certain assets which it uses to publish and
distribute the regional telephone directory or directories set forth below its
name on Schedule A hereto (collectively, the "Business");
WHEREAS, the Purchaser desires to purchase from each Seller, and each
Seller desires to sell to the Purchaser, the assets of such Seller owned, used
or held for use by it exclusively to conduct the operations of the Business, and
in connection therewith, the Purchaser has agreed to assume certain liabilities
of each Seller relating to the Business, all upon the terms and subject to the
conditions set forth herein (such transaction sometimes being referred to herein
as the "Asset Purchase"); and
WHEREAS, each Seller and the Purchaser desire to make certain
representations, warranties, covenants and agreements in connection with the
Asset Purchase, all as more fully set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, promises and agreements hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and accepted, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. For all purposes of and under this Agreement,
the following terms shall have the respective meanings set forth below:
(a) "Action" means any claim, action, suit or proceeding, arbitral
action, governmental inquiry, criminal prosecution or other investigation.
(b) "Affiliate" means, as applied to any Person, (i) any other
Person directly or indirectly controlling, controlled by or under common control
with, that Person, (ii) any other Person that owns or controls 10% or more of
any class of equity securities (including any equity securities issuable upon
the exercise of any option or convertible security) of that Person or any of its
Affiliates, or (iii) any director, partner, member, officer, manager, agent,
employee or relative of such Person. For the purposes of this definition,
"control" (including with correlative
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meanings, the terms "controlling", "controlled by", and "under common control
with") as applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
that Person, whether through ownership of voting securities, by contract or
otherwise.
(c) "Business Day" means any weekday (Monday through Friday) on
which commercial banks in New York, New York are open for business.
(d) "Contract" means any currently enforceable contract, agreement,
indenture, note, bond, instrument, lease, conditional sales contract, mortgage,
license, franchise agreement, concession agreement, insurance policy, security
interest, guaranty, binding commitment or other agreement or arrangement,
whether written or oral.
(e) "Encumbrance" means any security interest, pledge, mortgage,
lien, charge, adverse claim of ownership or use, restriction on transfer (such
as a right of first refusal or other similar right), defect of title, or other
encumbrance of any kind or character.
(f) "Environmental Law" means any applicable law, order, regulation,
decree, permit, license, ordinance, or other federal, state, county, provincial,
local or foreign governmental requirements in effect as of the Closing Date
relating to pollution, the protection of human health and the environment, or
the discharge or Release of any Hazardous Substance into the environment.
(g) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended, any successor statute thereto, and the rules and regulations
promulgated thereunder.
(h) "GAAP" means generally accepted accounting principles in the
United States, consistently applied.
(i) "Governmental Authority" means any government, any governmental
entity, department, commission, board, agency or instrumentality, and any court,
tribunal, or judicial body, in each case whether federal, state, county,
provincial, local or foreign.
(j) "Governmental Order" means any statute, rule, regulation, order,
judgment, injunction, decree, stipulation or determination issued, promulgated
or entered by or with any Governmental Authority of competent jurisdiction.
(k) "Hazardous Substance" means petroleum, petroleum by-products,
polychlorinated biphenyls and any other chemicals, materials, substances or
wastes which are currently defined or regulated as "hazardous substances,"
"hazardous materials," "hazardous wastes," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants," "toxic
air pollutants," "hazardous air pollutants," "pollutants," or "contaminants"
under any Environmental Law.
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(l) "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, any successor statute thereto, and the rules and
regulations promulgated thereunder.
(m) "Income Tax" means any federal, state, county, provincial, local
or foreign income, franchise, business profits or other similar Tax, any
withholding or estimated Tax related thereto, any interest and penalties (civil
or criminal) thereon or additions thereto, and any expenses incurred in
connection with the determination, settlement or litigation of any Liabilities
related to any such Tax.
(n) "Intellectual Property" means any United States (i) patents,
patent applications, patent disclosures and improvements thereto, (ii)
trademarks, service marks, trade dress, logos, trade names, corporate names and
domain names, the goodwill associated therewith, and the registrations and
applications for registration thereof, if any, and (iii) copyrights, and the
registrations and applications for registration thereof, if any.
(o) "Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended, any successor statute thereto, and the rules and regulations
promulgated thereunder.
(p) "IRS" means the United States Internal Revenue Service, and any
successor agency thereto.
(q) "Knowledge of the Sellers," "known to the Sellers" and phrases
of similar import mean, with respect to any matter in question relating to a
Seller, the knowledge of such matter by the named executives listed in Schedule
1.1(q) hereto with respect to such Seller, in each case as limited to matters
relating to the telephone directory or directories set forth opposite each of
their names and without obligation of inquiry.
(r) "Law" means any federal, state, county, provincial, local or
foreign statute, law, ordinance, regulation, rule, code or rule of common law.
(s) "Liability" means any indebtedness, obligation and other
liability with respect to the Business or the Purchased Assets (whether
absolute, accrued, matured, contingent (or based upon any contingency), known or
unknown, fixed or otherwise, or whether due or to become due), including, any
fine, penalty, judgment, award or settlement respecting any judicial
administrative or arbitration proceeding, damage, loss, claim or demand with
respect to any Law.
(t) "License" means any franchise, approval, permit, order,
authorization, consent, license, registration or filing, certificate, variance
and any other similar right obtained from or filed with any Governmental
Authority.
(u) "Material Adverse Effect" means any change or effect that is
materially adverse to the assets, properties, operations, business, financial
condition or results of operations of the Business, taken as a whole.
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(v) "Operative Agreements" means, collectively, (i) the Grant
Deed(s), (ii) the Assignment of Real Property Lease, (iii) the Bills of Sale,
(iv) the Assignments and Assumptions, (v) the Assignments of Proprietary Rights,
and (vi) the Escrow Agreement.
(w) "Permitted Encumbrances" means (i) Encumbrances for mechanics'
and materialmen's liens and workmen's, repairmen's, warehousemen's and carriers'
liens arising in the ordinary course of the business, (ii) Encumbrances for
Taxes and other Liabilities not yet due and payable, (iii) Encumbrances arising
out of, under or in connection with this Agreement, (iv) Encumbrances expressly
reflected on the Latest Balance Sheet, (v) Encumbrances and imperfections of
title the existence of which would not reasonably be expected to materially
detract from the value of, materially interfere with, or otherwise materially
adversely affect the use and enjoyment of the property subject thereto or
affected thereby, consistent with past practice, and (vi) solely with respect to
Owned Real Property, provided that the following are not violated by existing
improvements in any material respect and do not prohibit or materially restrict
the continued use and operation of such Owned Real Property for the same uses
and operations as currently conducted, or grant any third party any option or
right to acquire or lease a material portion thereof, (A) easements, rights of
way and other similar restrictions which would be shown by a current title
report, (B) conditions that may be shown by a current survey, title report or
physical inspection, and (C) zoning, building and other similar restrictions
imposed by applicable Law.
(x) "Person" means any individual, general or limited partnership,
firm, corporation, limited liability company, association, trust, unincorporated
organization or other entity.
(y) "Proprietary Rights" means (i) Intellectual Property, (ii) trade
secrets and confidential business information (including ideas, formulas,
compositions, inventions (whether patentable or unpatentable and whether or not
reduced to practice), know-how, research and development information, software,
drawings, specifications, designs, plans, proposals, technical data,
copyrightable works, financial, marketing and business data, pricing and cost
information, business and marketing plans and customer and supplier lists and
information), (iii) other proprietary rights, (iv) copies and tangible
embodiments thereof (in whatever form or medium), and (v) licenses granting any
rights with respect to any of the foregoing.
(z) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing of a Hazardous Substance into the environment.
(aa) "Subsidiary" means (unless otherwise indicated), with respect
to a Person, any other Person in which such Person has a direct or indirect
equity or other ownership interest in excess of fifty percent (50%).
(bb) "Tax" means any federal, state, county, provincial, local or
foreign income, gross receipts, sales, use, ad valorem, employment, severance,
transfer, gains, profits, excise, franchise, property, capital stock, premium,
minimum and alternative minimum or other
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taxes, fees, levies, duties, assessments or charges of any kind or nature
whatsoever imposed by any Governmental Authority (whether payable directly or by
withholding), together with any interest, penalties (civil or criminal),
additions to, or additional amounts imposed by, any Governmental Authority with
respect thereto, and any expenses incurred in connection with the determination,
settlement or litigation of any Liability therefor.
(cc) "Tax Return" means a report, return or other information
required to be supplied to a Governmental Authority with respect to any Tax.
1.2 Certain Additional Definitions. For all purposes of and under this
Agreement, the following terms shall have the respective meanings ascribed
thereto in the respective sections of this Agreement set forth opposite each
such term below:
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Term Section
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Agreement Preamble
Applicable Limitation Date 9.1(a)
Asset Purchase Preamble
Assignment of Lease 3.2(a)
Assignments and Assumptions 3.2(a)
Assignments of Proprietary Rights 3.2(a)
Assumed Liabilities 2.2(b)
Benefit Plan(s) 4.10(a)
Bills of Sale 3.2(a)
Business Preamble
Business Contract(s) 2.1(b)
Business Employee(s) 4.9
Business Insurance Policies 4.16(a)
Business License(s) 2.1(b)
Cash Payment 2.3(a)
Closing 3.1
Closing Balance Sheet 2.3(b)
Closing Date 3.1
Closing Working Capital 2.3(b)
Confidentiality Obligations 6.3(a)
Deficiency 6.14(d)
Escrow Agent 3.3(c)
Escrow Agreement 3.2(a)
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Term Section
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Estimated Closing Balance Sheet 2.3(b)
Estimated Working Capital 2.3(b)
Excluded Assets 2.1(c)
Excluded Liabilities 2.2(c)
Financial Statements 4.11(a)
Florida Holdings Preamble
401(k) Plan 4.10(b)
Gainesville Lease 2.1(b)
Gainesville Site 2.1(b)
Grant Deeds 3.2(a)
Houma Preamble
Improvements 4.12(c)
Indemnified Party 9.1(e)
Indemnifying Party 9.1(e)
Independent Accountant 2.3(b)
Joint Defense Proceeding 9.1(e)
Lakeland Preamble
Latest Balance Sheet 4.11(a)
Latest Balance Sheet Date 4.11(a)
Material Business Contract(s) 4.7(a)
Material Business License(s) 4.8
Noncompetition Period 6.13(a)
Notice of Disagreement 2.3(b)
NYTMS Preamble
NYTMS Declaration of Trust 4.1
Owned Real Property 2.1(b)
Phase I Report 6.14(c)
Proceeding 9.1(e)
Purchase Price 2.3(a)
Purchased Assets 2.1(b)
Purchaser Preamble
Purchaser 401(k) Plan 6.9(d)
Purchaser Indemnitees 9.1(b)
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Term Section
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Real Property Escrow Amount 3.3(a)
Real Property Permits 4.12(d)
Restricted Activities 6.13(a)
Seller Indemnitees 9.1(d)
Seller(s) Preamble
Sellers Articles of Incorporation 4.1
Sellers Bylaws 4.1
Short Term Agreement 4.7(a)
Statement of Working Capital 2.3(b)
Survey 6.14(b)
Target 2.3(b)
Termination Date 8.1(b)
Title Commitment 6.14(a)
Title Insurer 6.14(a)
Title Policy 6.14(a)
Transferred Employees 6.9(a)
Transition Premises 6.12(b)
Transition Facilities 6.12(b)
Winterhaven Site 2.1(b)
Working Capital 2.3(b)
Working Capital Escrow Amount 3.3(a)
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ARTICLE II.
PURCHASE AND SALE OF ASSETS
2.1 Purchase and Sale of Purchased Assets.
(a) Purchase and Sale. Upon the terms and subject to the conditions
set forth herein, at the Closing the Purchaser shall purchase from each Seller,
and each Seller shall irrevocably sell, convey, transfer, assign and deliver to
the Purchaser, free and clear of all Encumbrances other than Permitted
Encumbrances, all right, title and interest of such Seller in and to the
Purchased Assets.
(b) Purchased Assets. For all purposes of and under this Agreement,
the term "Purchased Assets" shall mean, refer to and include all of each
Seller's right, title and interest in
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and to all of the following items, in each case used by such Seller solely in
connection with the Business (other than Excluded Assets) and as in existence on
the Closing Date:
(i) all that parcel of real property situated in Winterhaven,
Florida owned by Lakeland (the "Winterhaven Site"), as more fully described in
Schedule 2.1(b)(i) hereto (the "Owned Real Property"), and all of the rights
arising out of the ownership thereof or appurtenant thereto, including all
rights, privileges, grants and easements appurtenant to Lakeland's interest in
the Owned Real Property, together with all buildings, structures, facilities,
fixtures and other improvements thereto;
(ii) the lease of real property situated in Gainesville, Florida
(the "Gainesville Site"), as described in Schedule 2.1(b)(ii) as to which NYTMS
is the lessee (the "Gainesville Lease"), together with any leasehold
improvements thereon, and in each case all other rights, subleases, licenses,
permits, deposits and profits appurtenant to or related to such lease;
(iii) the equipment used exclusively in the operation of the
Business and located at the Winterhaven Site or the Gainesville Site;
(iv) all items of inventory pertaining exclusively to the
operation of the Business, including all materials and supplies, all work in
process and all finished product owned by any Seller as of the Closing Date;
(v) all licenses, permits and authorizations issued by any
Governmental Authority or private organization possessed by any Seller and
required exclusively for the operation of the Business and/or use of the
Purchased Assets (including the Material Business Licenses) and all rights
thereunder (each a "Business License" and, collectively, the "Business
Licenses") other than those listed on Schedule 2.1(c)(vii);
(vi) all contracts, agreements, personal property leases and
commitments to which any Seller is a party pertaining exclusively to the
operation of the Business and/or use of the Purchased Assets, including, but not
limited to pricing agreements, advertising agreements, distribution agreements,
and purchase orders or purchase commitments (including the Material Business
Contracts), and all rights thereunder (together with the Gainesville Lease, each
a "Business Contract" and, collectively, "Business Contracts") other than those
listed on Schedule 2.1(c)(vi);
(vii) all sales support and promotional materials, advertising
materials and production, sales and marketing files used exclusively for the
operation of the Business;
(viii) all current customer lists, supplier lists, production
records and credit records, or similar records of all sales of the Business, and
all other books and records maintained in connection with the operation of the
Business (or, if not maintained exclusively for the Business, access thereto
shall be provided);
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(ix) Proprietary Rights (including the Intellectual Property set
forth in Schedule 2.1(b)(ix) hereto to the extent of Sellers' rights therein),
goodwill associated therewith, rights thereunder, remedies against infringements
thereof, and rights to protection of interests therein under the applicable Laws
of all jurisdictions, in each case used exclusively for the operation of the
Business, but not, in any event, any trademarks or trade names of any Seller or
any of its Affiliates not used exclusively in connection with the Business,
including "NYTRNG", "The Ledger", "The News-Sun", "Daily News", "Lake City
Reporter", "Star Banner", "The Gainesville Sun", "Daily World", "The Courier",
"The Daily Comet", "The New York Times" and "Times Company" or any of the
trademarks identified on Schedule 2.1(c)(x) hereto or any of the URLs or domain
names associated with the foregoing;
(x) all tangible personal property of any Seller used
exclusively for the operation of the Business (including the tangible personal
property set forth on Schedule 2.1(b)(x) hereto) other than such tangible
personal property used for the production of the Directory entitled The Source
Book of Terrebonne, La Fourche, Assumption Parishes;
(xi) all accounts, accounts receivable and notes receivable
relating to the Business as of the Closing Date other than any such accounts or
receivables due from any Affiliate of any Seller;
(xii) all prepaid expenses and charges paid by any Seller prior
to the Closing Date in respect of the Business and pertaining to periods after
the Closing Date;
(xiii) any and all refunds of Taxes relating exclusively to the
Business other than refunds of Income Taxes; and
(xiv) the centralized billing system (consisting of a server and
related software) located at 300 West Lime Street, Lakeland, Florida 33815.
(c) Excluded Assets. Notwithstanding anything to the contrary
herein, no Seller shall contribute, convey, assign, or transfer to the
Purchaser, and the Purchaser shall not acquire or have any rights to acquire,
any assets (the "Excluded Assets") of any Seller other than those specifically
set forth in Section 2.1(b). Without limiting the generality of the foregoing,
unless specifically set forth in Section 2.1(b), the following shall constitute
Excluded Assets:
(i) all cash, cash equivalents and securities of each Seller;
(ii) all bank and other depository accounts of each Seller;
(iii) all corporate or organizational records and minute books
of each Seller;
(iv) refunds of Income Taxes and tax loss carryforwards;
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(v) all assets, whether real or personal, tangible or
intangible, which are owned, used or held for use by any Seller to conduct any
business operation or activity other than the Business;
(vi) nontransferable Business Contracts listed in Schedule
2.1(c)(vi) hereto;
(vii) nontransferable Business Licenses listed in Schedule
2.1(c)(vii) hereto;
(viii) all tangible personal property used for the production of
the Directory entitled The Source of Book Terrebonne, LaFourche, Assumption
Parishes.
(ix) all Business Insurance Policies or other insurance policies
relating to the Business, any refunds paid or payable in connection with the
cancellation or discontinuance of any insurance policies applicable to the
Business, and any claims made under any such insurance policies;
(x) the corporate trademarks or trade names of any Seller or any
of its Affiliates not used exclusively in connection with the Business,
including "NYTRNG", "The Ledger", "The News-Sun", "Daily News", "Lake City
Reporter", "Star Banner", "The Gainesville Sun", "Daily World", "The Courier",
"The Daily Comet", "The New York Times" and "Times Company" or any of the
trademarks identified on Schedule 2.1(c)(x) or any of the URLs or domain names
associated therewith; and
(xi) all rights of each Seller under this Agreement, the
Purchase Price hereunder, any agreement, certificate, instrument or other
document executed and delivered by such Seller or the Purchaser in connection
with the transactions contemplated hereby, or any side agreement between such
Seller and the Purchaser entered into on or after the date of this Agreement.
2.2 Assumption of Liabilities.
(a) Assumption. Upon the terms and subject to the conditions set
forth herein, at the Closing the Purchaser shall assume from each Seller (and
thereafter pay, perform, discharge or otherwise satisfy in accordance with their
respective terms), and each Seller shall irrevocably convey, transfer and assign
to the Purchaser, all of the Assumed Liabilities (as defined below) of such
Seller.
(b) Assumed Liabilities. For all purposes of and under this
Agreement, the term "Assumed Liabilities" shall mean, refer to and include only
those Liabilities of each Seller identified below and no other Liabilities:
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(i) Liabilities under the Business Contracts of each Seller
party thereto, to the extent such Business Contracts are transferable by such
Seller to the Purchaser and are actually assigned;
(ii) Liabilities under the Business Licenses held by each
Seller, to the extent such Business Licenses are transferable by such Seller to
the Purchaser and are actually assigned;
(iii) Liabilities, including accounts payable, reflected in the
Latest Balance Sheet and any additional Liabilities, including accounts payable,
pertaining to the Business and incurred by any Seller after the Latest Balance
Sheet Date and prior to the Closing Date in the ordinary course of business and
not in breach of any of the representations, warranties or covenants of Sellers
contained herein, to the extent not paid prior to the Closing Date; and
(iv) Liabilities of the Sellers for any accrued but unpaid
payroll, bonuses, vacation and sick time and Workers' Compensation Liabilities
of all Transferred Employees to the extent such Liabilities are accrued on the
Statement of Working Capital.
(c) Excluded Liabilities. The Purchaser shall not assume any
Liabilities other than "Assumed Liabilities" (such other Liabilities, the
"Excluded Liabilities"). Without limiting the foregoing, Excluded Liabilities
shall include specifically the following Liabilities:
(i) Liabilities of the Sellers and their Affiliates related to
compensation and employee benefit plans or arrangements applicable to
Transferred Employees (and their covered dependents) with respect to periods
prior to the Closing Date except to the extent that such Liabilities have been
accrued on the Statement of Working Capital, including, without limitation, (i)
all claims for medical and dental benefits that are covered and eligible for
payment under the terms of Sellers' benefit plans and which are incurred prior
to the Closing Date, (ii) short-term disability benefit payments for periods
prior to the Closing Date, (iii) payment of premiums for insured coverages prior
to the Closing Date, (iv) all claims for workers compensation benefits with
respect to injuries incurred prior to the Closing Date and (v) severance
benefits that such Transferred Employees are entitled to for a reason other than
their termination by the Purchaser on or after the Closing Date.
(ii) Liabilities for Taxes of each Seller or any of its
Affiliates; and
(iii) Liabilities of each Seller in respect of transaction costs
payable by it pursuant to Section 6.8 hereof.
2.3 Consideration for Purchased Assets.
(a) Consideration. The purchase price (the "Purchase Price") for the
Purchased Assets shall be (i) $16,000,000, subject to adjustment pursuant to
Section 2.3(b), in cash (the "Cash Payment"), and (ii) the assumption by the
Purchaser of the Assumed Liabilities pursuant to Section 2.2 hereof.
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(b) Working Capital Adjustment.
(i) For all purposes of and under this Agreement, the term
"Working Capital" shall mean (A) the aggregate value of the Sellers' current
assets included within the Purchased Assets, minus (B) the aggregate value of
the Sellers' current liabilities included within the Assumed Liabilities, each
calculated as of the Closing to the extent practicable in accordance with GAAP
applied in a manner consistent with the preparation of the Financial Statements.
(ii) Not more than five (5) Business Days, but in no event less
than two (2) Business Days, before the Closing, Sellers shall in good faith
prepare and deliver to the Purchaser an estimated combined unaudited balance
sheet of the Business ("Estimated Closing Balance Sheet"), dated as of the day
immediately preceding the Closing, setting forth the Sellers' estimate of the
Working Capital. The Sellers will make available to the Purchaser all records
and work papers used in preparing the Sellers' estimate of the Working Capital
and the Purchaser shall notify the Sellers of any good faith disagreement with
such calculation. If the Purchaser and the Sellers cannot agree as to an
estimate of the Working Capital prior to the Closing, the estimate of the
Working Capital will be deemed to be equal to the average of the Sellers' and
the Purchaser's good faith determinations thereof. The Working Capital as
finally estimated pursuant to this Section 2.3(b) is referred to herein as the
"Estimated Working Capital." At the Closing, if the Estimated Working Capital is
less than $4,000,000 (the "Target"), then the Purchase Price payable at the
Closing will be decreased on a dollar for dollar basis by the amount of such
deficiency, and if the Estimated Working Capital is greater than the Target,
then the Purchase Price payable at the Closing will be increased on a dollar for
dollar basis by the amount of such excess.
(iii) As promptly as practicable, but in any event within sixty
(60) calendar days following the Closing, the Purchaser shall cause to be
prepared and delivered to the Sellers an unaudited combined balance sheet of the
Business (the "Closing Balance Sheet") and statement relating to the Business
(the "Statement of Working Capital") setting forth the Working Capital as of the
Closing (the "Closing Working Capital"). The Purchaser shall afford the Sellers
and their agents and representatives reasonable access to all books, records and
work papers used by the Purchaser to review the Closing Balance Sheet and the
Statement of Working Capital.
(iv) If the Sellers disagree in good faith with the Statement of
Working Capital, then the Sellers shall notify the Purchaser in writing (the
"Notice of Disagreement") of such disagreement within thirty (30) calendar days
following delivery of the Closing Balance Sheet and the Statement of Working
Capital. The Notice of Disagreement shall set forth in reasonable detail the
basis for the disagreement described therein. Thereafter, the Sellers and the
Purchaser shall attempt in good faith to resolve and finally determine the
amount of the Closing Working Capital. If the Sellers and the Purchaser are
unable to resolve the disagreement within thirty (30) calendar days following
delivery of the Notice of Disagreement, then the Sellers and the Purchaser shall
select a mutually acceptable, nationally recognized independent accounting firm
that does not then have a relationship with any Seller or the Purchaser, or any
of their
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respective Affiliates (the "Independent Accountant"), to resolve the
disagreement and make a determination with respect thereto as promptly as
practicable; provided that if the Sellers and the Purchaser cannot agree, the
Independent Accountant shall be selected by an accounting firm designated by the
Purchaser and an accounting firm designated by the Sellers. Such determination
will be made, and written notice thereof given to the Sellers and the Purchaser,
within thirty (30) calendar days after such selection. The determination by the
Independent Accountant shall be final, binding and conclusive upon the Sellers
and the Purchaser. The scope of the Independent Accountant's engagement (which
will not be an audit) shall be limited to the resolution of the disputed items
described in the Notice of Disagreement, and the recalculation, if any, of the
Closing Working Capital in light of such resolution. If an Independent
Accountant is engaged pursuant to this Section 2.3(b)(iv), the fees and expenses
of the Independent Accountant shall be borne equally by the Sellers, on the one
hand, and the Purchaser, on the other hand. Within ten (10) calendar days after
delivery of a notice of determination by the Independent Accountant as described
above, any payment required by Section 2.3(b)(iii) hereof shall be made, based
on such determination.
(v) After the Closing Working Capital is finally determined
pursuant to Sections 2.3(b)(iii) and (iv):
(A) in the event that Estimated Working Capital is greater than the
Closing Working Capital, the Sellers shall, within five (5)
Business Days after the determination thereof, pay to the
Purchaser an amount in cash equal to Estimated Working Capital
minus the Closing Working Capital in the manner specified below;
and
(B) in the event that the Closing Working Capital is greater than the
Estimated Working Capital, the Purchaser shall, within five (5)
Business Days after the determination thereof, pay to the
Sellers, an amount equal to the Closing Working Capital, minus
the Estimated Working Capital by wire transfer of immediately
available funds to an account designated by the Sellers.
Any amount payable to the Purchaser pursuant to this Section 2.3(b)(v) shall be
made from the Working Capital Escrow Amount and, to the extent such funds are
deficient, by wire transfer of immediately available funds by the Sellers to an
account designated by the Purchaser. To the extent the amount payable to the
Purchaser pursuant to this Section 2.3(b)(v) is less than the Working Capital
Escrow Amount, the Escrow Agent shall be directed to disburse the excess to the
Sellers. If no amount is required to be paid to the Purchaser by the Sellers
pursuant to this Section 2.3(b)(v), the Escrow Agent shall be directed to
disburse the Working Capital Escrow Amount to Sellers. Any amount payable by the
Purchaser or the Sellers pursuant to this Section 2.3(b)(v) shall include simple
interest thereon at the rate of 8% per annum, calculated on the basis of a
365-day year, from the Closing Date to the date of payment.
(c) Allocation of Purchase Price. The consideration for the
Purchased Assets provided herein shall be allocated among the various categories
of Purchased Assets in
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accordance with their respective fair market values. The parties hereto shall
use their reasonable efforts prior to Closing to reach agreement on a reasonable
allocation of consideration to such categories of Purchased Assets. If the
Purchaser and the Sellers reach such agreement, the Purchaser and the Sellers
(i) shall execute and file all Tax Returns in a manner consistent with the
allocation determined pursuant to this Section 2.3(c) and (ii) shall not take
any position before any Governmental Authority or in any judicial proceeding
that is inconsistent with such allocation. Such agreement shall not be a
condition to Closing. The Sellers and the Purchaser shall each timely file a
Form 8594 with the IRS in accordance with the requirements of Section 1060 of
the Internal Revenue Code. In the event that the parties do not agree to a
purchase price allocation then each party hereto shall file its own Form 8594.
2.4 Further Assurances. At and after the Closing, and without further
consideration therefor, (i) each Seller shall execute and deliver to the
Purchaser such further instruments and certificates of conveyance and transfer
as the Purchaser may reasonably request in order to more effectively convey and
transfer the Purchased Assets from such Seller to the Purchaser and to put the
Purchaser in operational control of the Business, or for aiding, assisting,
collecting and reducing to possession any of the Purchased Assets and exercising
rights with respect thereto and (ii) the Purchaser shall execute, or shall
arrange the execution of, and deliver to any Seller such further instruments and
certificates of assumption, novation and release as such Seller may reasonably
request in order to effectively make the Purchaser responsible for all Assumed
Liabilities and release such Seller therefrom to the fullest extent permitted
under applicable Law.
2.5 Assignment of Business Contracts and Business Licenses. To the
extent that transfer or assignment hereunder by any Seller to the Purchaser of
any Business Contract or Business License is not permitted or is not permitted
without the consent or approval of another Person, this Agreement shall not be
deemed to constitute an undertaking to assign the same if such consent or
approval is not given or if such an undertaking otherwise would constitute a
breach thereof or cause a loss of benefits thereunder. Each Seller (and the
Purchaser where required) shall use its commercially reasonable efforts to
obtain any and all such third party consents or approvals under all Business
Contracts to which it is a party and Business Licenses held by such Seller;
provided, however, that neither any Seller nor the Purchaser shall be required
to pay or incur any cost or expense to obtain any third party consent or
approval that it is not otherwise required to pay or incur in accordance with
the terms of the applicable Business Contract or Business License, except for
usual legal fees and expenses. If any such third party consent or approval is
not obtained before the Closing, each Seller shall cooperate with the Purchaser
in any reasonable arrangement designed to provide for the Purchaser after the
Closing the benefits intended to be assigned to the Purchaser under the
applicable Business Contract, including enforcement at the cost and for the
account of the Purchaser of any and all rights of such Seller against the other
party thereto arising out of the breach or cancellation thereof by such other
party or otherwise; provided that the Purchaser shall undertake to pay or
satisfy the corresponding Liabilities for the enjoyment of such benefit to the
extent that the Purchaser would have been responsible therefor hereunder if such
consent, waiver or approval had been obtained.
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ARTICLE III.
THE CLOSING
3.1 Time and Place. The consummation of the transactions contemplated
hereby shall take place at a closing (the "Closing") to be held at 10:00 a.m.,
New York time, on the date (the "Closing Date") which is the third (3rd)
Business Day after satisfaction and fulfillment or, if permissible pursuant to
the terms hereof, waiver of the conditions set forth in Article VII hereof, at
the offices of The New York Times Company, 229 West 43rd Street, New York, New
York 10036, unless another time, date or place is mutually agreed upon in
writing by the Sellers and the Purchaser.
3.2 Closing Deliveries of the Sellers. At the Closing, each Seller shall
deliver, or cause to be delivered, to the Purchaser the following instruments,
certificates and other documents, dated as of the Closing Date and executed or
acknowledged (as applicable) on behalf of such Seller party thereto by a duly
authorized officer thereof, in order to consummate the transactions contemplated
hereby, including the transfer of the Purchased Assets to the Purchaser pursuant
to Section 2.1 hereof:
(a) Instruments of Transfer and Assignment.
(i) A bargain and sale deed or deeds, as the case may be, to be
delivered by Lakeland in substantially the form attached hereto as Exhibit A
(the "Grant Deeds"), conveying fee simple title to all of the Owned Real
Property;
(ii) an Assignment of Lease to be delivered by NYTMS in
substantially the form attached hereto as Exhibit B (the "Assignment of Lease")
assigning the Gainesville Lease;
(iii) a Bill of Sale to be delivered by each Seller
substantially in the form attached hereto as Exhibit C (collectively, the "Bills
of Sale");
(iv) an Instrument of Assignment and Assumption to be delivered
by each Seller substantially in the form attached hereto as Exhibit D
(collectively, the "Assignments and Assumptions");
(v) an Assignment of Proprietary Rights to be delivered by each
Seller substantially in the form attached hereto as Exhibit E (collectively, the
"Assignments of Proprietary Rights");
(vi) an Escrow Agreement to be delivered by each Seller
substantially in the form attached hereto as Exhibit F (the "Escrow Agreement");
(vii) copies of all instruments, certificates, documents and
other filings (if applicable) necessary to release the Purchased Assets from all
Encumbrances other than
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Permitted Encumbrances and those Encumbrances set forth in Schedule 4.5(a)
hereto, all in a form reasonably satisfactory to counsel for the Purchaser; and
(viii) copies of the waivers, consents and/or approvals listed
in Schedules 4.3 and 4.4 hereto.
(b) Closing Certificates.
(i) An officer's certificate to be delivered by each Seller
substantially in the form attached hereto as Exhibit G, which shall certify as
to the satisfaction of the conditions set forth in Sections 7.1(a) and 7.1(b)
hereof;
(ii) a secretary's certificate to be delivered by each Seller
substantially in the form attached hereto as Exhibit H; and
(iii) a certificate of each Seller certifying as to its
non-foreign status which complies with the requirements of Section 1445 of the
Internal Revenue Code.
(c) Legal Opinion. A legal opinion of Solomon B. Watson IV, Senior
Vice President and General Counsel of The New York Times Company, substantially
in the form attached hereto as Exhibit I.
3.3 Closing Deliveries of the Purchaser. At the Closing, the Purchaser
shall make the payment and deliver, or cause to be delivered, to the Sellers the
following instruments, certificates and other documents, dated as of the Closing
Date and executed or acknowledged (as applicable) on behalf of the Purchaser by
a duly authorized officer thereof, in order to pay for the Purchased Assets and
effect the assumption of all Assumed Liabilities from the Sellers pursuant to
Section 2.2 hereof:
(a) Cash Payment. An amount in cash equal to the Cash Payment minus
$500,000 (the "Working Capital Escrow Amount") and $200,000 (the "Real Property
Escrow Amount"), payable by wire transfer of immediately available funds to an
account designated in writing by the Sellers at least two (2) Business Days
prior to the Closing Date.
(b) Instruments of Assumption.
(i) The Assignments and Assumptions; and
(ii) all other instruments and certificates of assumption,
novation and release as any Seller may reasonably request in order to
effectively make the Purchaser responsible for all Assumed Liabilities and
release such Seller therefrom to the fullest extent permitted under applicable
Law.
(c) Escrow Agreement. The Escrow Agreement duly executed on behalf
of the Purchaser, and the Purchaser shall have caused the Working Capital Escrow
Amount and the
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Real Property Escrow Amount to be deposited with the escrow agent under the
Escrow Agreement (the "Escrow Agent") to be held in accordance with the Escrow
Agreement.
(d) Closing Certificates.
(i) An officer's certificate substantially in the form attached
hereto as Exhibit J, which shall certify as to the satisfaction of the
conditions set forth in Sections 7.2(a) and 7.2(b) hereof; and
(ii) a secretary's certificate substantially in the form
attached hereto as Exhibit K.
(e) Legal Opinion. A legal opinion of Kirkland & Ellis, counsel for
the Purchaser, substantially in the form attached hereto as Exhibit L.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller hereby represents and warrants (as to itself and not as to
any other Seller) to the Purchaser as follows:
4.1 Organization. Such Seller is a corporation or a business trust, as
the case may be, duly organized, validly existing and in good standing under the
Laws of the jurisdiction of its formation, with all requisite corporate or trust
power and authority to own, operate or lease the Purchased Assets as now owned,
operated or leased by it, and to conduct the Business substantially as presently
conducted by it. Such Seller has made available to the Purchaser true and
complete copies of its Certificate and Articles of Incorporation (the "Sellers
Articles of Incorporation") and Bylaws (the "Sellers Bylaws"), or Declaration of
Trust (the "NYTMS Declaration of Trust"), as the case may be, each as amended
and in effect as of the date of this Agreement.
4.2 Authority. Such Seller has all requisite corporate or trust power
and authority to enter into and deliver this Agreement and the Operative
Agreements to which it is a party, to perform its obligations hereunder and
thereunder, and to consummate the transactions contemplated hereby and thereby.
The execution and delivery by such Seller of this Agreement and the Operative
Agreements to which it is a party, the performance by such Seller of its
obligations hereunder and thereunder, and the consummation by such Seller of the
transactions contemplated hereby and thereby, have been duly authorized by all
necessary corporate or trust action on its part. This Agreement has been duly
executed and delivered by such Seller. Assuming the due authorization, execution
and delivery of this Agreement and the Operative Agreements by the Purchaser,
this Agreement constitutes, and each of the Operative Agreements to which such
Seller is a party (when so executed and delivered) will constitute, a legal,
valid and binding obligation of such Seller, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
principles of public policy, and subject to (i) the effect of
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any applicable Laws of general application relating to bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or similar Laws
affecting creditors' rights and relief of debtors generally, and (ii) the effect
of rules of Law and general principles of equity, including rules of Law and
general principles of equity governing specific performance, injunctive relief
and other equitable remedies (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4.3 No Violation; Third Party Consents. Assuming that all consents,
waivers, approvals, orders and authorizations set forth in Schedule 4.4 hereto
have been obtained and all registrations, qualifications, designations,
declarations or filings with any Governmental Authorities set forth in Schedule
4.4 hereto have been made, and except as set forth in Schedule 4.3 hereto, the
execution and delivery by such Seller of this Agreement and the Operative
Agreements to which it is a party, the performance by such Seller of its
obligations hereunder and thereunder, and the consummation by such Seller of the
transactions contemplated hereby and thereby, will not conflict with or violate,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under, give rise to any right of termination,
amendment, modification, acceleration or cancellation of any obligation or loss
of any benefit under, result in the creation of any Encumbrance other than a
Permitted Encumbrance on any of the Purchased Assets pursuant to, or require it
to obtain any consent, waiver, approval or action of, make any filing with, or
give any notice to any Person as a result or under, the terms and provisions of
(i) the Sellers Articles of Incorporation or the Sellers Bylaws (as to Lakeland,
Florida Holdings or Houma), (ii) the NYTMS Declaration of Trust (as to NYTMS),
(iii) any Contract to which such Seller is a party or by which any of the
Purchased Assets being sold by it are bound, or (iv) any Law applicable to such
Seller or any of the Purchased Assets being sold by it, or any Governmental
Order issued by a Governmental Authority by which such Seller or any of the
Purchased Assets being sold by it is in any way bound or obligated, except, in
the case of any Law under clause (iv) of this Section 4.3, as would not
reasonably be expected to have a Material Adverse Effect.
4.4 Government Consents. No consent, waiver, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any Governmental Authority is required on the part of such Seller
in connection with the execution and delivery by such Seller of this Agreement
and the Operative Agreements to which it is a party, the performance by such
Seller of its obligations hereunder and thereunder, and the consummation by such
Seller of the transactions contemplated hereby and thereby, including the sale
and transfer of the Purchased Assets being sold by such Seller to the Purchaser,
except (i) any filing or approval that may be required under the HSR Act and as
set forth in Schedule 4.4 hereto, and (ii) where the failure to obtain such
consent, waiver, approval, order or authorization, or to make such registration,
qualification, designation, declaration or filing, would not reasonably be
expected, as of the date hereof, to have a Material Adverse Effect.
4.5 Tangible Property. Schedule 2.1(b)(x) hereto contains a list of all
tangible personal property (except for non-capitalized lease equipment) of such
Seller included in the Purchased Assets that, individually, has a book value in
excess of $1,000. The Purchased Assets include all property used regularly in or
necessary to the conduct of the Business, as presently
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conducted, except with respect to the Directory entitled The Source Book of
Terrebonne, La Fourche, Assumption Parishes which uses resources, including
tangible personal property, provided by or owned by Houma which are Excluded
Assets. Except as set forth in Schedule 4.5(a), as of the date hereof, such
Seller is the sole and exclusive legal and equitable owner of all tangible
property included by it in the Purchased Assets, free and clear of all
Encumbrances, except Permitted Encumbrances. THE TANGIBLE PERSONAL PROPERTY
BEING SOLD TO THE PURCHASER HEREUNDER IS BEING SOLD ON AN "AS-IS" BASIS AND SUCH
SELLER HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES REGARDING THE
FITNESS OR CONDITION OF SUCH TANGIBLE PERSONAL PROPERTY BEING SOLD BY IT,
INCLUDING ANY WARRANTY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF
MERCHANTABILITY.
4.6 Intellectual Property and Proprietary Rights.
(a) Schedule 2.1(b)(ix) hereto contains a list of all material
Intellectual Property of such Seller used in connection with the Business as
currently conducted by such Seller and each material item of Intellectual
Property that any third party owns and that the Sellers use in connection with
the Business pursuant to license, sublicense, agreement, or permission. With
respect to each item of Intellectual Property owned by such Seller and required
to be identified on such schedule: (i) the Sellers possess all right, title, and
interest in and to the item, free and clear of any Liens, license, or other
restriction; (ii) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge; and (iii) no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand is
pending or, to the knowledge of the Sellers, is threatened which challenges the
legality, validity, enforceability, use, or ownership of the item.
(b) To its knowledge, as of the date hereof, such Seller owns or has
a valid right to use all Intellectual Property required by such Seller to
conduct the operations of the Business substantially as currently conducted by
it, without infringing upon the rights of any other Person. To the knowledge of
such Seller, as of the date hereof, no other Person is infringing upon its
rights in or to any of its Intellectual Property set forth in Schedule
2.1(b)(ix) hereto, except as would not reasonably be expected, as of the date
hereof, to have a Material Adverse Effect.
4.7 Business Contracts.
(a) Schedule 4.7(a) hereto contains a list of the following Business
Contracts of such Seller included by it in the Purchased Assets and all Business
Contracts that are material to the Business as currently conducted by it (each,
a "Material Business Contract" and, collectively, the "Material Business
Contracts"): (i) the Gainesville Lease (in the case of NYTMS); (ii) capital or
operating leases or conditional sales agreements relating to any Purchased
Assets (other than Short Term Agreements), in each case involving monthly
payments in excess of $20,000; (iii) noncompetition or other agreements
restricting the ability of such Seller to engage in the Business in any
location; (iv) employment, consulting, separation, collective bargaining or
other labor agreements; (v) agreements under which such Seller is
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obligated to indemnify, or entitled to indemnification from, any other Person,
other than any agreement that requires indemnification solely in connection with
or as a result of a breach of such agreement; and (vi) each other contract or
agreement relating exclusively to the Business and/or any Purchased Assets and
involving payments made to or by such Seller that exceeded in 1999, or is
expected to exceed in 2000, $20,000. For all purposes of and under this
Agreement, the term "Short Term Agreement" shall mean an agreement entered into
by any Seller in the ordinary course of business that is terminable by such
Seller party thereto upon ninety (90) days or less notice without penalty.
(b) Such Seller has made available to the Purchaser a copy of each
written Material Business Contract to which it is a party. Except as set forth
in Schedule 4.7(b) hereto, as of the date hereof, (i) each Material Business
Contract to which such Seller is a party represents a valid, binding and
enforceable obligation of such Seller in accordance with the respective terms
thereof and, to its knowledge, represents a valid, binding and enforceable
obligation of each of the other parties thereto; and (ii) there exists no breach
or default (or event that with notice or the lapse of time, or both, would
constitute a breach or default) on the part of such Seller or, to its knowledge,
on the part of any other party under any Material Business Contract.
4.8 Business Licenses. Such Seller owns or possesses all right, title
and interest in and to all Licenses which are necessary as of the date hereof
for it to conduct the Business substantially as currently conducted by it (each,
a "Material Business License" and, collectively, the "Material Business
Licenses"). Schedule 4.8 hereto contains a list of all Material Business
Licenses of such Seller included in the Purchased Assets. As of the date hereof,
no loss or expiration of any such Material Business License is pending or, to
the knowledge of such Seller, threatened, other than the expiration of any such
Material Business License in accordance with the terms thereof which may be
renewed in the ordinary course of business.
4.9 Business Employees. Schedule 4.9 hereto lists all employees of such
Seller who, as of the date of this Agreement, have employment duties primarily
related to the Business, including (and designating as such) any such employee
who is an inactive employee on paid or unpaid leave of absence, short-term
disability or long-term disability, and indicating date of employment, current
title and compensation. Each employee set forth in Schedule 4.9 hereto who
remains employed by any Seller immediately prior to the Closing (whether
actively or inactively), and each additional employee who is hired to work
primarily in the Business following the date hereof and prior to the Closing in
accordance with Section 6.9(b) hereof who remains employed by such Seller
immediately prior to the Closing (whether actively or inactively), is referred
to herein individually as a "Business Employee" and, collectively, as "Business
Employees." Except as set forth on Schedule 4.9, the Sellers are not aware of
and have not received notice that any Business Employee or group of Business
Employees intends to leave the Business.
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4.10 Employee Benefit Plans.
(a) Schedule 4.10(a) hereto lists each employment, bonus, incentive
compensation, deferred compensation, pension, profit sharing retirement, stock
purchase, stock option, stock ownership, equity (or equity-based), leave of
absence, vacation, day or dependent care, cafeteria, life, health, medical,
accident, disability, workmen's compensation or other insurance, severance,
change of control or other benefit plan, agreement (including any collective
bargaining agreement), practice, policy or arrangement, whether written or oral,
and whether or not subject to ERISA (including any "employee benefit plan"
within the meaning of Section 3(3) of ERISA), which such Seller or any of its
Affiliates sponsors, maintains, has any obligation to contribute to, has
Liability under or is otherwise a party to as of the date hereof, or which
covers or otherwise provides benefits to any of such Seller's Business Employees
or former Business Employees (or their dependents and beneficiaries) (with
respect to their relationship with the Business) (each, a "Benefit Plan" and,
collectively, the "Benefit Plans").
(b) (i) Each of the Benefit Plans presently complies and has been
operated in all material respects with its terms and all applicable Laws,
including all tax rules for which favorable tax treatment is intended.
(ii) Each Benefit Plan that is intended to be tax-qualified
under Section 401(a) of the Internal Revenue Code, has been determined by the
IRS to be so qualified in form and, to the knowledge of such Seller, no
circumstances have occurred that would adversely affect the ability of such
Seller to rely on such determination as to the tax-qualified status of any such
plan.
(iii) With respect to The New York Times Companies Supplemental
Retirement and Investment Plan (the "401(k) Plan"), copies of the applicable
following documents have been made available upon request to the Purchaser: (A)
the current plan document and related trust documents, and any amendments
thereto; (B) Form 5500 and financial statements for the most recent plan year;
(C) the most recently issued IRS determination letter; and (D) summary plan
description.
(iv) No Transferred Employee participates in a "multiemployer
plan" (as defined in Section 4001(1) of ERISA) and Sellers and their Affiliates
have not incurred any withdrawal liability with respect to any multiemployer
plan as of the date hereof.
(c) All contributions, premiums or payments under or with respect to
each Benefit Plan which are due on or before the Closing Date have been paid.
(d) Each Seller has not incurred and has no reason to expect that it
will incur, any liability to the Pension Benefit Guaranty Corporation (other
than nondelinquent premium payments) or otherwise under Title IV of ERISA
(including any withdrawal liability) or under the Code with respect to any
Benefit Plan that each Seller or any other entity, that together with such
Seller is treated as a single employer under Section 414(b) or (c) of the Code,
maintains or
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ever has maintained or to which any of them contributes, ever has contributed,
or ever has been required to contribute.
4.11 Financial Statements.
(a) Attached as Schedule 4.11(a) hereto are true, correct and
complete copies of the following financial statements (collectively, the
"Financial Statements"): (i) the unaudited statement of assets and liabilities
of the Business (the "Latest Balance Sheet") as of March 26, 2000 (the "Latest
Balance Sheet Date"), and the unaudited statements of revenues and expenses for
each telephone directory for 1999. The Financial Statements were prepared in
accordance with generally accepted accounting principles (except for the absence
of notes and certain other aspects of the format of the Financial Statements),
consistently applied, derived from the books and records of the Business (which
are accurate and complete in all material respects), and fairly present, in all
material respects, the matters purported to be presented.
(b) Except as set forth in Schedule 4.11 (b), there has been no
change in the Business since the Latest Balance Sheet Date that has resulted in
a Material Adverse Effect.
4.12 Real Property.
(a) Schedule 2.1(b)(i) describes the Winterhaven Site, which
comprises all the Owned Real Property used by the Sellers in the Business.
Except for the Gainesville Site (which is leased) and the Winterhaven Site,
there is no real property leased, owned or occupied by the Sellers or used in
the Business. With respect to the Winterhaven Site: (i) such parcel is free and
clear of all Encumbrances, except Permitted Encumbrances; (ii) there are no
leases, subleases, licenses, concessions, or other agreements, written or oral,
granting to any Person the right of use or occupancy of any portion of such
parcel; and (iii) to the Sellers' Knowledge, there are no outstanding actions or
rights of first refusal to purchase such parcel (other than the right of the
Purchaser pursuant to this Agreement), or any portion thereof or interest
therein.
(b) Current Use. The current use of the Winterhaven Site does not
violate in any material respect any instrument of record or agreement affecting
such real property. Sellers have not received notice of any violation of any
covenant, condition, restriction, easement, agreement or order of any
Governmental Authority having jurisdiction over the Winterhaven Site that
affects such real property or the use or occupancy thereof.
(c) Condition and Operation of Improvements. All buildings and all
components of all buildings, structures and other improvements included within
the Winterhaven Site (the "Improvements"), including, without limitation, the
roofs and structural elements thereof and the heating, ventilation, air
conditioning, air pollution emission capture and abatement, plumbing,
electrical, mechanical, sewer, waste water and paving and parking equipment
systems and facilities included therein, are in good condition and repair
(normal wear and tear excepted) and adequate to operate such facilities as
currently used.
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(d) Permits. All material certificates of occupancy, permits,
licenses, franchises, approvals and authorizations (collectively, the "Real
Property Permits") of all Governmental Authorities having jurisdiction over the
Winterhaven Site, required or appropriate to have been issued to Sellers to
enable the Winterhaven Site to be lawfully occupied and used for all of the
purposes for which it is currently occupied and used have been lawfully issued
and are, as of the date hereof, in full force and effect. Sellers have made
available complete and correct copies of the Real Property Permits to the
Purchaser. Sellers have not received or been informed by a third party of the
receipt by it of any notice from any Governmental Authority having jurisdiction
over the Winterhaven Site threatening a suspension, revocation, modification or
cancellation of any Real Property Permit and, to the Knowledge of Sellers, there
is no basis for the issuance of any such notice or the taking of any such
action.
(e) Schedule 2.1(b)(ii) describes the Gainesville Site. NYTMS is
party to the Gainesville Lease, which lease is in full force and effect and
NYTMS has not received any outstanding notice of default from the landlord under
such lease.
(f) Risk of Loss. If prior to the Closing, any portion of the
Winterhaven Site shall be taken or damaged or destroyed by fire or other
casualty, the Purchaser shall not have the right to terminate this Agreement and
the Purchase Price shall not be reduced, but Lakeland's rights to any award
resulting from such taking or any insurance proceeds resulting from such fire or
other casualty (less any sums expended by Lakeland for repair and restoration),
shall be assigned by Lakeland to the Purchaser at the Closing. The respective
rights of the Lakeland and the Purchaser in the event of a taking or damage or
destruction shall be governed by this Section 4.12(f) and any provision of any
law of the State of Florida or the State of New York applicable to the subject
matter hereof, including Section 5-1311 of the General Obligations Law of the
State of New York, shall not apply to this Agreement and is hereby waived.
4.13 Litigation; Governmental Orders. Except as set forth in Schedule
4.13 hereto, there are no pending or, to the knowledge of such Seller (which for
this purpose includes the office of the General Counsel of The New York Times
Company), threatened Actions by any Person or Governmental Authority against or
relating to such Seller with respect to the Business or, to the knowledge of
such Seller, any of its current or former employees (in their capacity as such),
or to which any of the Purchased Assets being sold by it are subject.
4.14 Compliance with Laws. Except as set forth in Schedule 4.14 hereto,
to the knowledge of such Seller (which for this purpose includes the office of
the General Counsel of The New York Times Company), as of the date hereof such
Seller is in compliance with, and such Seller has never received any claim or
notice that it is not in compliance with, each material Law or Governmental
Order applicable to the Business.
4.15 Environmental Matters. Except as disclosed on Schedule 4.15:
(a) Such Seller is in compliance with all Environmental Laws
applicable to the Business as presently conducted by it, except for violations
of such Environmental Laws that would not have a Material Adverse Effect.
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(b) Such Seller holds and is in compliance with all Licenses
required under Environmental Laws applicable to the conduct of the Business as
presently conducted by it, except for the absence of, or the noncompliance with,
such Licenses that would not have a Material Adverse Effect.
(c) Such Seller has not received any written notice of any Action by
any Person or Governmental Authority alleging a violation of or Liability under
any Environmental Law arising from the conduct of the Business by it, except in
all such cases that would not have a Material Adverse Effect.
(d) There has been no Release of any Hazardous Substance at the
Winterhaven Site or the Gainesville Site or any real property previously owned,
leased or operated by such Seller in respect of the Business that is in
violation of or is reasonably likely to lead to any Liability arising under any
Environmental Law, except for any such violations or Liability that would not
have a Material Adverse Effect.
(e) Such Seller has not transported or arranged for the treatment,
storage, or disposal of any Hazardous Substances to any off-site location in
connection with the Business that has resulted in a Liability to such Seller
under applicable Environmental Laws, except for any such Liability that would
not have a Material Adverse Effect.
4.16 Insurance.
(a) Such Seller or an Affiliate maintains insurance in respect of
the Purchased Assets of such Seller and the Business, as conducted by it,
covering such risks, in such amounts, with such terms and with such insurers as
such Seller or such Affiliate has determined is appropriate in light of the
Business and consistent with industry practice (such insurance, "Business
Insurance Policies").
(b) All of the Business Insurance Policies are in full force and
effect. Such Seller is not in default with respect to any material provision
contained in any such Business Insurance Policy held by or on behalf of such
Seller. Such Seller has not received any notice of cancellation or non-renewal
of any such Business Insurance Policy.
4.17 Transactions with Affiliates. Except as set forth in Schedule 4.17
hereto, no shareholder, officer, director or employee of such Seller or any of
its Affiliates, or any immediate family member of any of the foregoing, has (a)
borrowed money from, or loaned money to, the Business which remains outstanding,
(b) any interest in any of the Purchased Assets, or (c) entered into any
transaction with any Seller in connection with the Business.
4.18 Taxes. With respect to Taxes, other than Income Taxes, relating
primarily to the Business, such Seller has filed or will have filed on a timely
basis all material Tax Returns in connection with any such federal, state or
local Tax required to be filed by it, and such Seller has or will have timely
paid all such Taxes shown thereon to be due. None of the Purchased Assets
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is subject to any lien in favor of the United States pursuant to Section 6321 of
the Internal Revenue Code for nonpayment of federal Taxes, or any lien in favor
of any state or locality pursuant to any comparable provision of state or local
law, under which transferee liability might be imposed upon the Purchaser as a
buyer of such Purchased Assets pursuant to Section 6323 of the Internal Revenue
Code or any comparable provision of state or local law.
4.19 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by such Seller directly
with the Purchaser without the intervention of any Person on behalf of such
Seller in such manner as to give rise to any valid claim by any Person against
the Purchaser for a finder's fee, brokerage commission or similar payment.
4.20 Disclosure. Neither this Agreement nor any of the exhibits or
schedules hereto, contains any untrue statement by any Seller of a material
fact. There is no fact which the Sellers have not disclosed to the Purchaser in
writing and of which any Seller has knowledge and which has had or would
reasonably be expected to have a Material Adverse Effect.
4.21 Closing Date. All of the representations and warranties made by the
Sellers contained in this Article IV and elsewhere in the Agreement and all
information delivered in any schedule, attachment or exhibit hereto or in any
certificate delivered by the Sellers to the Purchaser shall be true and correct
on the Closing Date as though then made, except as affected by the transactions
expressly contemplated by this Agreement and except as expressly disclosed in
writing to the Purchaser by Sellers prior to the Closing. Prior to the Closing
Date, but subject to Section 6.11, each Seller shall notify the Purchaser of any
information that came into existence after the date hereof and would have been
required to be disclosed on one or more schedules or reflected in such
representations or warranties if such information was in existence on the date
hereof and may or supplement the disclosure schedules attached hereto to reflect
such information.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Sellers as follows:
5.1 Organization. The Purchaser is a limited liability company duly
formed, validly existing and in good standing under the Laws of the State of
Delaware.
5.2 Authority. The Purchaser has all requisite limited liability company
power and authority to enter into and deliver this Agreement and the Operative
Agreements to which it is a party, to perform its obligations hereunder and
thereunder, to consummate the transactions contemplated hereby and thereby, and
to assume and perform the Assumed Liabilities. The execution and delivery by the
Purchaser of this Agreement and the Operative Agreements to which it is a party,
the performance by the Purchaser of its obligations hereunder and thereunder,
the consummation by the Purchaser of the transactions contemplated hereby and
thereby, and the
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assumption and performance of the Assumed Liabilities, have been duly authorized
by all necessary limited liability company action on the part of the Purchaser.
This Agreement has been, and the Operative Agreements to which the Purchaser is
a party shall be, duly executed and delivered by the Purchaser. Assuming the due
authorization, execution and delivery of this Agreement and the Operative
Agreements by each Seller, this Agreement constitutes, and each of the Operative
Agreements to which the Purchaser is a party (when so executed and delivered)
will constitute, a legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as such
enforceability may be limited by principles of public policy, and subject to (i)
the effect of any applicable Laws of general application relating to bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or similar Laws
affecting creditors' rights and relief of debtors generally, and (ii) the effect
of rules of Law and general principles of equity, including rules of Law and
general principles of equity governing specific performance, injunctive relief
and other equitable remedies (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
5.3 No Violation; Third Party Consents. Assuming that all consents,
waivers, approvals, orders and authorizations set forth in Schedule 5.4 hereto
have been obtained and all registrations, qualifications, designations,
declarations or filings with any Governmental Authorities set forth in Schedule
5.4 hereto have been made, and except as set forth in Schedule 5.3 hereto, the
execution and delivery by the Purchaser of this Agreement and the Operative
Agreements to which it is a party, the performance by the Purchaser of its
obligations hereunder and thereunder, the consummation by the Purchaser of the
transactions contemplated hereby and thereby, and the assumption and performance
of the Assumed Liabilities, will not conflict with or violate, constitute a
default (or event which with the giving of notice or lapse of time, or both,
would become a default) under, give rise to any right of termination, amendment,
modification, acceleration or cancellation of any obligation or loss of any
benefit under, result in the creation of any Encumbrance other than a Permitted
Encumbrance on any of the assets or properties of the Purchaser pursuant to, or
require the Purchaser to obtain any consent, waiver, approval or action of, make
any filing with, or give any notice to any Person as a result or under, the
terms or provisions of (i) the organizational documents of the Purchaser, (ii)
any Contract to which the Purchaser is a party or is bound, or (iii) any Law
applicable to the Purchaser, or any Governmental Order issued by a Governmental
Authority by which the Purchaser is in any way bound or obligated, except, in
the case of and Law under clause (iii) of this Section 5.3, as would not have a
material adverse effect on the ability of the Purchaser to perform its
obligations under this Agreement and the Operative Agreements to which it is a
party, to assume and perform the Assumed Liabilities or to consummate on a
timely basis the transactions contemplated hereby or thereby.
5.4 Governmental Consents. No consent, waiver, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any Governmental Authority is required on the part of the Purchaser
in connection with the execution and delivery by the Purchaser of this Agreement
and the Operative Agreements to which it is a party, the performance by the
Purchaser of its obligations hereunder and thereunder, the consummation by the
Purchaser of the transactions contemplated hereby and thereby, the assumption
and
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performance of the Assumed Liabilities, except (i) as set forth in Schedule 5.4
hereto, and (ii) where the failure to obtain such consent, waiver, approval,
order or authorization, or to make such registration, qualification,
designation, declaration or filing, would not have a material adverse effect on
the ability of the Purchaser to perform its obligations under this Agreement,
the Operative Agreements to which it is a party, to assume and perform the
Assumed Liabilities or to consummate on a timely basis the transactions
contemplated hereby or thereby.
5.5 Litigation. Except as set forth in Schedule 5.5 hereto, there are no
pending or, to the knowledge of the Purchaser, threatened Actions by any Person
or Governmental Authority against or relating to the Purchaser (or any Affiliate
of the Purchaser) or by which the Purchaser or its assets or properties are or
may be bound which, if adversely determined, would have a material adverse
effect on the ability of the Purchaser to perform its obligations under this
Agreement and the Operative Agreements to which it is a party, to assume and
perform the Assumed Liabilities or to consummate on a timely basis the
transactions contemplated hereby or thereby.
5.6 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Purchaser directly
with the Sellers without the intervention of any Person on behalf of the
Purchaser in such manner as to give rise to any valid claim by any Person
against any Seller for a finder's fee, brokerage commission or similar payment.
5.7 Financing. The Purchaser has sufficient funds, or has obtained
binding, written commitments, satisfactory to the Sellers, from responsible
banks and/or other financial institutions to provide any required financing
(copies of which have been provided to the Sellers), in an aggregate amount
necessary to pay the Cash Payment and to perform the Assumed Liabilities and to
consummate all of the other transactions contemplated by this Agreement.
5.8 Closing Date. All of the representations and warranties made by the
Purchaser contained in this Article V and elsewhere in the Agreement and all
information delivered in any schedule, attachment or exhibit hereto or in any
certificate delivered by the Purchaser to the Sellers shall be true and correct
on the Closing Date as though then made, except as affected by the transactions
expressly contemplated by this Agreement and except as expressly disclosed in
writing to the Sellers by the Purchaser prior to the Closing. Prior to the
Closing Date, but subject to Section 6.11, the Purchaser shall notify the
Sellers of any information that came into existence after the date hereof and
would have been required to be disclosed on one or more schedules or reflected
in such representations or warranties if such information was in existence on
the date hereof and may or supplement the disclosure schedules attached hereto
to reflect such information.
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ARTICLE VI.
COVENANTS AND AGREEMENTS
6.1 Conduct of Business.
(a) At all times during the period commencing upon the execution and
delivery hereof by each of the parties hereto and terminating upon the earlier
to occur of the Closing or the termination of this Agreement pursuant to and in
accordance with the terms of Section 8.1 hereof, unless the Purchaser shall
otherwise consent in writing (which consent shall not be unreasonably withheld
or delayed), and except as otherwise set forth in Schedule 6.1 hereto, each
Seller shall (a) conduct the operations of the Business only in the ordinary
course of business and consistent with its past practices, (b) use commercially
reasonable efforts to preserve intact the goodwill of the Business and the
current relationships of such Seller with its officers, employees, customers,
suppliers and others with significant and recurring business dealings with the
Business, (c) use commercially reasonable efforts to maintain in effect all
Business Insurance Policies and all Business Licenses held by or on behalf of
such Seller that are necessary to carry on the Business in the manner conducted
by it as of the date hereof, (d) maintain the books of account and records of
the Business as conducted by it in the usual, regular and ordinary manner and
consistent with its past practices, and (e) not knowingly take any action that
would result in a breach of or inaccuracy in (in each case as of the Closing)
any of the representations and warranties of such Seller contained in Article IV
hereof.
(b) Notwithstanding anything to the contrary set forth in this
Section 6.1 or elsewhere in this Agreement, each Seller shall be permitted,
without obtaining the consent or other approval of the Purchaser, to enter into,
perform its obligations under, and consummate the transactions contemplated by,
any existing or new agreements or other arrangements pursuant to which such
Seller shall sell, transfer or otherwise dispose of any of its assets other than
the Purchased Assets, it being expressly acknowledged and agreed by each of the
parties hereto that the foregoing shall include the right to distribute the
proceeds from any such sale, transfer or other disposition to the shareholders
of such Seller without obtaining the consent or other approval of the Purchaser.
6.2 Access and Information. Subject to the terms of Section 6.3, at all
times during the period commencing upon the execution and delivery hereof by
each of the parties hereto and terminating upon the earlier to occur of the
Closing or the termination of this Agreement pursuant to and in accordance with
the terms of Section 8.1 hereof, each Seller shall permit the Purchaser and its
authorized agents and representatives to have reasonable access, upon reasonable
notice and during normal business hours, to all of its Business Employees, the
Purchased Assets and all of its relevant books, records and documents of or
relating to the Business and the Purchased Assets, and shall furnish to the
Purchaser such information and data, financial records and other documents in
its possession relating to the Business and the Purchased Assets as the
Purchaser may reasonably request. Each Seller shall permit the Purchaser and its
agents and representatives reasonable access to its accountants for reasonable
consultation or verification of any information obtained by the Purchaser during
the course of any investigation conducted pursuant to this Section 6.2.
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6.3 Confidentiality.
(a) (i) If the transactions hereunder are not consummated, the
Purchaser and its Affiliates shall keep confidential all information regarding
the Business which is or has been furnished to the Purchaser or its directors,
officers, employees, representatives, advisors or Affiliates by or on behalf of
the Sellers and (ii) whether or not the transactions hereunder are consummated,
the Sellers shall keep confidential all information regarding the Purchaser's
business which is or has been furnished to the Sellers, or any of their
shareholders, partners, directors, officers, employees, representatives,
advisers or Affiliates by or on behalf of the Purchaser. In the event the
transactions contemplated by this Agreement are not consummated, the Parties
shall return (or certify the destruction of) all materials in their possession
containing confidential information belonging to another party and shall not use
any such information for any purpose whatsoever. The foregoing notwithstanding,
none of the provisions in this Section 6.3 shall apply to any information which
(x) is already in a party's possession (provided that such information is not
subject to another confidentiality agreement with or other legal or fiduciary
obligation of secrecy to the party to which the information relates (such
agreements and obligations being referred to as "Confidentiality Obligations"));
(y) becomes generally available to the public other than as a result of any
breach of this Section 6.3 or a Confidentiality Obligation; or (z) becomes
available to a party on a non-confidential basis from a source other than the
party to which the information relates (provided that such source is not bound
by a Confidentiality Obligation with, or other legal or fiduciary obligation of,
secrecy to the party to which the information relates).
(b) In the event any party hereto is required to disclose any
confidential information pursuant to applicable Law, such party shall promptly
notify each other party in writing, which notification shall include the nature
of the legal requirement and the extent of the required disclosure, and shall
cooperate with each other party to preserve the confidentiality of such
information consistent with applicable Law.
6.4 Further Actions.
(a) Upon the terms and subject to the conditions set forth in this
Agreement (including the terms of Section 6.4(b) hereof), each Seller and the
Purchaser shall each use their respective commercially reasonable efforts to
take, or cause to be taken, all appropriate action, and to do, or cause to be
done, and to assist and cooperate with the other parties hereto in doing, all
things necessary, proper or advisable under applicable Laws to consummate the
transactions contemplated hereby, including, without limitation: (i) obtaining
all necessary Licenses, actions or nonactions, waivers, consents or approvals
(subject to the proviso in Section 2.5), authorizations, qualifications and
other orders of any Governmental Authorities with competent jurisdiction over
the transactions contemplated hereby, (ii) obtaining all necessary consents,
approvals or waivers from third parties (subject to the proviso in Section 2.5),
(iii) defending any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, including seeking to have vacated or reversed
any stay or temporary restraining order entered by any Governmental
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Authority prohibiting or otherwise restraining the consummation of the
transactions contemplated hereby, and (iv) executing and delivering any
additional instruments, certificates and other documents necessary or advisable
to consummate the transactions contemplated hereby and to fully carry out the
purposes of this Agreement.
(b) Without limiting the generality of the foregoing, each Seller
and the Purchaser hereby agree to provide promptly to Governmental Authorities
with regulatory jurisdiction over enforcement of any applicable antitrust laws
all information and documents requested by any such Governmental Authorities or
necessary, proper or advisable to permit consummation of the transactions
contemplated hereby, and to file any Notification and Report Form and related
material required under the HSR Act as soon as practicable after the date
hereof. Each Seller and the Purchaser shall each thereafter use its respective
commercially reasonable efforts to complete as soon as practicable its
compliance with any requests for additional information or documentary material
that may be made under the HSR Act. The Purchaser and each Seller hereby further
agree to use their respective commercially reasonable efforts to (i) obtain any
governmental clearances required for consummation of the transactions
contemplated hereby (subject to the proviso in Section 2.5), (ii) respond to any
government request for information, (iii) contest and resist any action,
including any legislative, administrative or judicial action, and have vacated,
lifted, reversed or overturned, any Governmental Order (whether temporary,
preliminary or permanent) that restricts, prevents or prohibits the consummation
of the transactions contemplated hereby, including by using all legal efforts to
vigorously pursue all available avenues of administrative and judicial appeal
and all available legislative action, and (iv) in the event that any permanent
or preliminary injunction or other order is entered or becomes reasonably
foreseeable to be entered in any proceeding that would make consummation of the
transactions contemplated hereby in accordance with the terms of this Agreement
unlawful or that would prohibit, prevent, delay or otherwise restrain the
consummation of the transactions contemplated hereby, to contest the same in
order to have the relevant Governmental Authorities vacate, modify or suspend
such injunction or order so as to permit the consummation of the transactions
contemplated hereby prior to the Termination Date.
6.5 Fulfillment of Conditions by the Sellers. No Seller shall knowingly
take or cause to be taken, or knowingly fail to take or cause to be taken, any
action that would cause the conditions to the obligations of any Seller or the
Purchaser to consummate the transactions contemplated hereby to not be satisfied
or fulfilled at or prior to the Closing.
6.6 Fulfillment of Conditions by the Purchaser. The Purchaser shall not
knowingly take or cause to be taken, or knowingly fail to take or cause to be
taken, any action that would cause the conditions to the obligations of any
Seller or the Purchaser to consummate the transactions contemplated hereby to
fail to be satisfied or fulfilled at or prior to Closing.
6.7 Publicity. The Sellers, on the one hand, and the Purchaser, on the
other, shall cooperate with each other in the development and distribution of
all news releases and other public disclosures relating to the transactions
contemplated by this Agreement. Neither the Sellers nor the Purchaser shall
issue or make, or allow to have issued or made, any press release or public
announcement concerning the transactions contemplated by this Agreement without
the
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consent of the other parties hereto, except as otherwise required by applicable
Law or the rules of any applicable stock exchange, but in any event only after
giving the other parties hereto a reasonable opportunity to comment on such
release or announcement in advance, consistent with such applicable legal
requirements.
6.8 Transaction Costs. The Purchaser and the Sellers shall each pay
one-half of any HSR filing fee. The Purchaser shall pay all other transaction
costs and expenses (including legal, accounting and other professional fees and
expenses) that it incurs in connection with the negotiation, execution and
performance of this Agreement and the consummation of the transactions
contemplated hereby. The Sellers shall pay all transaction costs and expenses
(including legal, accounting and other professional fees and expenses) that they
incur in connection with the negotiation, execution and performance of this
Agreement and the consummation of the transactions contemplated hereby. Except
as otherwise provided in Section 6.14, the Sellers and the Purchaser shall each
pay one-half of any and all transfer Taxes (including stock transfer, sales, use
and deed Taxes) and the fees and costs of recording or filing all applicable
conveyancing instruments associated with the transfer of the Purchased Assets
from the Sellers to the Purchaser pursuant to this Agreement. Each Seller and
the Purchaser shall cooperate in the preparation, execution and filing of all
Tax Returns regarding any transfer Taxes which become payable as a result of the
transfer of the Purchased Assets from such Seller to the Purchaser pursuant to
this Agreement and/or shall cooperate to seek an available exemption from such
Taxes.
6.9 Employees and Employee Benefit Matters.
(a) The Purchaser shall offer employment as of the Closing Date to
all Business Employees. As of the Closing Date, the Purchaser shall employ each
Business Employee who accepts the Purchaser's offer of employment ("Transferred
Employees") at a compensation level (including salary, bonuses and commissions)
substantially equivalent to what such Business Employee received immediately
before the execution hereof until at least December 31, 2001. The Purchaser
shall provide each Transferred Employee credit for years of service with the
Sellers (or their Affiliates) prior to the Closing for the purpose of
eligibility and vesting under the Purchaser's health, vacation, severance, sick
leave and other employee benefit plans and policies (including, without
limitation the Purchaser 401(k) Plan).
(b) Without limiting the scope of Section 6.9(a), the Purchaser
shall cause each Transferred Employee (and his or her eligible dependents) who
is covered under the Sellers' group health plan to be covered immediately
following the Closing, until at least December 31, 2001, by a group health plan
that provides health benefits (within the meaning of Section 5000(b)(1) of the
Internal Revenue Code) provided that such group health plan (i) does not limit
or exclude coverage on the basis of any pre-existing condition of such
Transferred Employee or their dependents and (ii) provides each Transferred
Employee full credit for the year during which the Closing occurs, with any
deductible already incurred by the Transferred Employee and his or her
dependents under such group health plan and with any other out-of-pocket
expenses that count against any maximum out-of-pocket expense provision of such
group health plan. Workers' Compensation benefits for any Transferred Employee
shall be the responsibility of the
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Sellers (or their Affiliates) if the injury occurred prior to the Closing Date,
and otherwise shall be the responsibility of the Purchaser.
(c) If any Transferred Employee is eligible to take any accrued but
unused vacation time pursuant to the vacation policy applicable to such
Transferred Employee immediately prior to Closing, the Purchaser shall allow
such Transferred Employee to use such accrued vacation to the extent that such
accrued vacation is accrued on the Statement of Working Capital.
(d) Effective as of the Closing Date, the Purchaser shall establish,
or shall extend coverage to each Transferred Employee under, a defined
contribution individual account plan (the "Purchaser 401(k) Plan") qualified
pursuant to Sections 401(a) and 401(k) of the Internal Revenue Code to the
extent the Transferred Employee has satisfied the requirements for participation
therein.
(e) As soon as practicable after the Closing Date, the Sellers (or
their Affiliates) shall cause the trustee of the 401(k) Plan to allow
Transferred Employees to take distributions of their full vested account
balances, if such employees elect to do so. The Purchaser shall permit the
Transferred Employees to roll over, on a timely basis, such distributions in the
form of cash into the Purchaser 401(k) Plan's trust.
(f) The Sellers (or their Affiliates) shall cause the administrator
of the 401(k) Plan, and the Purchaser shall cause the administrator of the
Purchaser 401(k) Plan, to timely make such filings as are required under ERISA,
the Internal Revenue Code or any applicable Laws with respect to the transfer of
account balances, assets or Liabilities described in this Section 6.9, including
any required filings on Form 5310-A.
6.10 Retention of and Access to Records. From and after the Closing, for
a period of six (6) years the Purchaser shall preserve all books and records
transferred by the Sellers to the Purchaser pursuant to this Agreement. Upon the
expiration of such six (6) year period, the Purchaser shall provide the Sellers
a reasonable opportunity to obtain copies, at the Sellers' expense, of any of
such books and records. As soon as practicable following the Closing, the
Purchaser shall deliver to each Seller such financial information relating to
the Business in sufficient detail as may be necessary to enable such Seller to
prepare its financial statements and all Tax Returns of such Seller relating to
periods ending on or prior to the Closing Date. In addition to the foregoing,
from and after the Closing, the Purchaser shall afford to each Seller, and its
counsel, accountants and other authorized agents and representatives, during
normal business hours, reasonable access to the employees, books, records and
other data relating to the Purchased Assets, the Excluded Assets, the Assumed
Liabilities, the Transferred Employees and the Excluded Liabilities in its
possession with respect to periods prior to the Closing, and the right to make
copies and extracts therefrom, to the extent that such access may be reasonably
required by the requesting party (a) to facilitate the investigation, litigation
and final disposition of any claims which may have been or may be made against
any such party or Person, or its Affiliates, (b) for the preparation of Tax
Returns and audits, and (c) for any other reasonable business purpose.
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6.11 Notification of Certain Matters. In the event that the Purchaser
becomes aware on or prior to the Closing Date of any breach of any
representation or warranty of any Seller that but for this Section 6.11 would
entitle the Purchaser to not consummate the Closing (whether due to facts or
events occurring subsequent to the execution of this Agreement or facts or
events that existed on the date hereof but which are not within the knowledge of
the Sellers at the time this Agreement was signed), Purchaser shall promptly
notify the Sellers in writing, and, to the extent such breach is not cured by
the Sellers on or prior to the Closing Date, (x) to the extent the aggregate
cost of remedying such breach is less than or equal to $250,000, in the good
faith estimate of the Purchaser, the Purchaser shall consummate the Closing with
a reduction of the Cash Payment by the amount of such good faith estimate; or
(y) if the cost of remedying such breach, non-performance or non-compliance
exceeds $250,000, the Purchaser may terminate this Agreement in accordance with
Section 8.1 hereof; or (z) if, in the good faith opinion of the Purchaser, such
breach is not reasonably subject to meaningful quantification, the Purchaser may
terminate this Agreement in accordance with Section 8.1. In any case,
notwithstanding anything in this Agreement to the contrary, whether the
Purchaser terminates this Agreement or proceeds to consummate the Closing, the
Purchaser shall be deemed to have waived any and all rights, remedies or other
recourse against the Sellers to which the Purchaser might otherwise be entitled
in respect of such breach.
6.12 Transition Facilities.
(a) The Purchaser acknowledges that the Business currently receives
from the Sellers and their Affiliates certain administrative and corporate
services and benefits, including the following: computer and information
processing services; finance, accounting and payroll services; facilities
management services; treasury services (including banking, insurance,
administration, taxation and internal audit); general administrative services;
executive and management services; legal services; and human resources services.
The Purchaser further acknowledges that, except as otherwise expressly provided
in this Section 6.12, all such services and benefits shall cease, and any
agreement in respect thereof shall terminate with respect to the Business as of
the Closing Date.
(b) In order to allow the Purchaser to make suitable alternative
arrangements, for a period of up to six months following the Closing, at the
Purchaser's option, Houma shall use its commercially reasonable efforts to
provide the Purchaser with the office space identified and described in Schedule
6.12(b) hereto (the "Transition Premises") together with the non-exclusive right
to use the common premises generally available to employees at such premises,
including the lobby, elevators, reception areas, cafeteria, bathrooms and other
similar facilities. Houma shall make available to the Purchaser the use of
desks, chairs, telephones, photocopiers and the furnishings located in the
Transition Premises from time to time during such period. The Transition
Premises shall be used by the Purchaser for purposes of conducting the Business
only, provided such use does not unreasonably interfere with the use of the
Transition Premises by the Sellers, their Affiliates or their successors. The
Transition Premises shall be available to the Purchaser during the six-month
period free of rent, operating expenses or taxes except that the Purchaser shall
be responsible for its personal office expenses, including any additional
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telephone instruments the Purchaser elects to obtain, telephone line and toll
charges, photocopying services, secretarial and messenger services, the costs of
stationery and office supplies and any above-standard cleaning services or
overtime use of building standard services (including heating, ventilation, air
conditioning, hot and cold water and electricity) incurred by Houma with respect
to use of the Transition Premises by or on behalf of the Purchaser or any of its
employees or agents. The Purchaser shall pay directly or reimburse Houma for the
foregoing as determined by Houma from time to time. The Purchaser may not
assign, transfer or sublet the Transition Premises. Upon or prior to the
termination of the aforementioned six-month period, the Purchaser shall remove
any of its personal property from and surrender the Transition Premises to Houma
in good order and condition, ordinary wear and tear excepted. If any such
property of the Purchaser is not removed on or before such time, Houma may (i)
remove and dispose of the same at the Purchaser's expense and (ii) charge the
Purchaser a reasonable fee for services provided by or on behalf of Houma to
vacate the Purchaser from the Transition Premises. The office space and related
services, if any, to be made available to the Purchaser as described in this
Section 6.12(b) are referred to herein as the "Transition Facilities").
(c) The obligations of the Sellers under this Section 6.12 shall not
(i) require them to pay any amounts in excess of those currently paid or
incurred by the Sellers for the Transition Facilities or incur any costs and
(ii) render the Sellers liable for any failure of any Transition Facilities to
be delivered to the Purchaser. The Transition Facilities shall be generally
provided, to the extent practicable, in a manner consistent with the manner in
which they were provided to the Business prior to the Closing.
(d) The obligation of the Sellers to provide the Transition
Facilities under this Section 6.12 shall be suspended with respect to any
specified Transition Facilities during the period and to the extent that any
Seller is prevented or hindered from providing such Transition Facilities by any
Law or Governmental Order, whether domestic or foreign, or by any cause beyond
the control of such Seller, including acts of God, strikes, lockouts and other
labor and industrial disputes and disturbances, civil disturbances, accidents,
acts of war or conditions arising out of or attributable to war (whether
declared or undeclared), shortage of necessary equipment, materials or labor, or
restrictions thereon or limitations upon the use thereof, and delays in
transportation or the refusal of any third party supplying Transition Facilities
to allow the Transition Facilities to be provided to the Business following the
Closing. In such event, such Seller shall give notice of suspension as soon as
reasonably practicable to the Purchaser stating the date and extent of such
suspension and the cause thereof, and such Seller shall resume the performance
of its obligations under this Section 6.12 as soon as reasonably practicable
after the removal of the cause and such Seller shall so notify the Purchaser.
Such a suspension shall not have the effect of extending the respective periods
of time for which the Transition Facilities shall be provided by such Seller.
(e) The Sellers shall not have any duties or responsibilities
pursuant to this Section 6.12 other than those specifically set forth in this
Section 6.12 and no implied obligations shall be read into this Section 6.12.
Neither any Seller, nor any of its officers, directors, employees, agents,
representatives, attorneys-in-fact or Affiliates shall be liable for any action
taken or omitted to be taken by it or such Person under or in connection with
this Section 6.12.
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(f) The Purchaser may terminate or partially limit any Transition
Facilities being provided to the Business at any time, in its sole discretion,
upon 30 days prior written notice to the Sellers.
(g) The Purchaser shall indemnify the Sellers and their Affiliates,
officers, directors, employees and representatives against and hold them
harmless from and reimburse them for any and all losses, damages, Liabilities,
obligations, costs and expenses, including fees and disbursements of counsel,
sustained or incurred by any such Person as a result of or arising out of the
provision of the Transition Facilities to the Purchaser under this Section 6.12.
(h) Nothing in this Section 6.12 or elsewhere in this Agreement
shall preclude any Seller from assigning its obligations hereunder, and upon any
such assignment the terms and provisions of this Section 6.12 shall apply to any
successor or assignor of such Seller.
6.13 Non-Competition.
(a) As a material inducement to the Purchaser to enter into and
perform its obligations under this Agreement, for a period of five (5) years
following the Closing Date (the "Noncompetition Period"), neither any Seller nor
any of its successors (but not any non-Affiliate purchaser of any Seller's other
business) or Affiliates will, directly or indirectly, either for itself or for
any partnership, individual corporation, joint venture or any other entity
participate in any business (including any division, group or franchise of a
larger organization) which engages in or proposes to engage in the sale,
distribution, production or printing of telephone directory "yellow pages" in
any county of Florida and Louisiana (the "Restricted Activities"). For purposes
of this Agreement, the term "participate in" shall include having any direct or
indirect interest in any corporation, partnership, joint venture or other
entity, whether as a sole proprietor, owner, shareholder, partner, joint
venturer, creditor or otherwise, or rendering any direct or indirect service or
assistance to any individual corporation, partnership, joint venture and other
business entity (whether as a director, officer, manager, supervisor, employee,
agent, consultant or otherwise). Notwithstanding the foregoing, the conduct by
the Sellers and their Affiliates of their newspaper, broadcasting, magazine and
Internet businesses in the ordinary course, including running advertisements and
offering Internet-based directory services, shall not constitute Restricted
Activities.
(b) The Sellers agree that the Purchaser would suffer irreparable
harm from a breach by such party of any of the covenants or agreements contained
in this Section 6.13. Accordingly, in the event of an alleged or threatened
breach by any Seller or any of its Affiliates of any of the provisions of this
Section 6.13, the Purchaser or its successors or assigns may, in addition to all
other rights and remedies existing in its favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order
to enforce or prevent any violations of the provisions hereof equal to the
length of the violation of this Section 6.13.
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(c) If, at the time of enforcement of this Section 6.13, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. The Sellers agree that the restrictions
contained in this Section 6.13 are reasonable.
(d) Until the second anniversary of the Closing Date, no Seller nor
any of its Affiliates shall, without the Purchaser's prior consent, (i) induce
or attempt to induce any employee of the Purchaser to leave the employ of the
Purchaser, or in any way interfere with the relationship between the Purchaser
and any employee thereof, (ii) hire directly or through another entity any
person who was an employee of the Purchaser at any time during the
Noncompetition Period, or (iii) induce or attempt to induce any customer,
supplier, licensee or other business relation of the Purchaser to cease doing
business with the Purchaser, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and the
Purchaser (including, without limitation, making any negative statements or
communications concerning the Purchaser).
(e) Each party agrees that the covenants made in this Section 6.13
shall be construed as an agreement independent of any other provision of this
Agreement and shall survive any order of a court of competent jurisdiction
terminating any other provision of this Agreement.
6.14 Conditions to Release of the Real Property Escrow Amount.
(a) Title Insurance. The Purchaser shall obtain, at the Purchaser's
own cost and expense, a commitment for an ALTA Owners Policy of Title Insurance,
Form B-1970, for the Owned Real Property (the "Title Commitment"), issued by a
title insurer satisfactory to the Purchaser (the "Title Insurer"), in such
amount as the Purchaser determines to be the fair market value (including all
improvements thereon) of the Owned Real Property, insuring the Purchaser's
interest in such parcel as of Closing, subject only to the Permitted
Encumbrances. The Sellers shall deliver at the time of delivery of the Title
Commitment copies of all documents of record referred to therein which are in
the Sellers' possession and which have not been previously delivered to the
Purchaser by the Sellers. The Purchaser will obtain a title insurance policy
("Title Policy"), from the Title Insurer based upon the Title Commitment. The
Sellers will deliver to the Title Insurer all reasonable and customary
affidavits, undertakings and other title clearance documents reasonably
necessary to issue the Title Policy and endorsements thereto, provided the same
do not increase the Liabilities or obligations of the Sellers under this
Agreement. The Title Policy will be dated as of the date of Closing and (a)
insure title to the Owned Real Property and all recorded easements benefitting
such parcel, subject only to Permitted Encumbrances, (b) contain (subject to the
availability of the Survey described in subsection 6.14(b) below) an "extended
coverage endorsement" insuring over the general exceptions contained customarily
in such policies, (c) contain an endorsement insuring that the parcel described
in such Title Policy is the parcel shown on the survey delivered with respect to
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such parcel, (d) contain an endorsement insuring that each street adjacent to
such parcel is a public street and that there is direct and unencumbered
pedestrian and vehicular access to such street from such parcel, (e) if the real
estate covered by such policy consists of more than one record parcel, contain a
"contiguity" endorsement insuring that all of the record parcels are contiguous
to one another and (f) contain a tax number endorsement.
(b) Survey. The Sellers shall procure, at their own cost and
expense, and shall deliver to the Purchaser, a current survey of the Owned Real
Property, prepared by a licensed surveyor, reasonably satisfactory to the
Purchaser, and conforming to 1992 ALTA/ACSM Minimum Detail Requirements for
Urban Land Title Surveys ("Survey"), and certified to the Purchaser, the
Purchaser's lender and the Title Insurer, within thirty (30) days of the Closing
Date. The Survey shall disclose the location of all Improvements, easements,
party walls, sidewalks, roadways, utility lines and such matters shown
customarily on such surveys, show access affirmatively to public streets and
roads, and include Table A Item Nos. 1-4 and 6-14. The Survey shall not disclose
any material encroachment from or onto any of the Owned Real Property which has
not been cured or insured over.
(c) Phase I. The Sellers shall procure, at their own cost and
expense, an environmental Phase I report (the "Phase I Report"), prepared by a
firm reasonably acceptable to the Purchaser, the results of which do not (based
upon such firm's determination) indicate the legal requirement of an expenditure
in excess of the lesser of $100,000 or the amount by which $100,000 exceeds the
amount by which the Cash Payment was reduced at the Closing pursuant to Section
6.11 of this Agreement.
(d) Real Property Documents. The Title Policy, the Survey and the
Phase I Report are collectively referred to as the "Real Property Documents". In
the event that any Real Property Documents are not delivered within 100 calendar
days of Closing or that upon receipt of any of the Real Property Documents, such
documents do not conform, in any material respect, to the description thereof
set forth above (a "Deficiency"), the Purchaser shall notify the Sellers in
writing. To the extent such Real Property Documents can be obtained or such
Deficiency can be corrected by the expenditure of funds, the Purchaser shall be
entitled to draw funds from the Real Property Escrow Amount in such amount as
reasonably necessary to obtain such Real Property Documents or to correct such
Deficiency. In the event the Real Property Documents cannot be obtained or the
Deficiencies cannot be corrected by the expenditure of the funds in the Real
Property Escrow Amount, the Purchaser shall be entitled to draw the entire Real
Property Escrow Amount and retain such funds. Notwithstanding the foregoing, the
Real Property Escrow Amount shall not be used to pay for the Title Commitment or
the Title Policy. The Purchaser's sole remedy in respect to any Deficiency shall
be as set forth in this Section 6.14(d).
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ARTICLE VII.
CLOSING CONDITIONS
7.1 Conditions to Obligations of the Purchaser. The obligations of the
Purchaser to consummate the transactions contemplated by this Agreement are
subject to the satisfaction or fulfillment at or prior to the Closing of the
following conditions, any of which may be waived in whole or in part by the
Purchaser in writing:
(a) All representations and warranties of each Seller contained in
this Agreement shall be true and correct in all material respects at and as of
the Closing with the same effect as though such representations and warranties
were made at and as of the Closing (other than any representation or warranty
that is expressly made as of a specified date, which shall be true and correct
in all material respects as of such specified date only).
(b) Each Seller shall have performed and complied in all material
respects with all the covenants and agreements required by this Agreement to be
performed or complied with by it at or prior to the Closing.
(c) All applicable waiting periods (and any extensions thereof)
under the HSR Act shall have expired or otherwise been terminated.
(d) There shall be in effect no Law or injunction issued by a court
of competent jurisdiction making illegal or otherwise prohibiting or restraining
the consummation of the transactions contemplated by this Agreement.
(e) Each Seller shall have delivered to the Purchaser all of the
certificates, instruments and other documents required to be delivered by it at
or prior to the Closing pursuant to Section 3.2 hereof.
(f) The Escrow Agent and the Sellers shall have executed and
delivered the Escrow Agreement.
(g) The New York Times Company shall have executed and delivered to
the Purchaser a letter agreement undertaking to be bound by the same
restrictions as are imposed on the Sellers pursuant to Section 6.13 of this
Agreement.
7.2 Conditions to Obligations of the Sellers. The obligations of the
Sellers to consummate the transactions contemplated by this Agreement are
subject to the satisfaction or fulfillment at or prior to the Closing of the
following conditions, any of which may be waived in whole or in part by the
Sellers in writing:
(a) All representations and warranties of the Purchaser contained in
this Agreement shall be true and correct in all material respects at and as of
the Closing with the same effect as though such representations and warranties
were made at and as of the Closing (other
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than any representation or warranty that is expressly made as of a specified
date, which shall be true and correct in all material respects as of such
specified date only).
(b) The Purchaser shall have performed and complied in all material
respects with the covenants and agreements required by this Agreement to be
performed or complied with by it at or prior to the Closing.
(c) All applicable waiting periods (and any extensions thereof)
under the HSR Act shall have expired or otherwise been terminated.
(d) There shall be in effect no Law or injunction issued by a court
of competent jurisdiction making illegal or otherwise prohibiting or restraining
the consummation of the transactions contemplated by this Agreement.
(e) The Purchaser shall have delivered to the Sellers the Cash
Payment and all of the certificates, instruments and other documents required to
be delivered by the Purchaser at or prior to the Closing pursuant to Section 3.3
hereof.
(f) The Sellers shall be satisfied as to the ability of the
Purchaser to perform the Assumed Liabilities.
(g) The Escrow Agent and the Purchaser shall have executed and
delivered the Escrow Agreement, and the Purchaser shall have deposited the
Working Capital Escrow Amount and the Real Property Escrow Amount with the
Escrow Agent pursuant to the terms of the Escrow Agreement.
ARTICLE VIII.
TERMINATION
8.1 Termination. This Agreement and the transactions contemplated hereby
may be terminated and abandoned:
(a) by either the Sellers, on the one hand, or the Purchaser, on the
other hand, at any time prior to the Closing with the mutual written consent of
the other;
(b) unless the Closing has not occurred as a result of a breach of
this Agreement by the party seeking such termination, by either the Sellers, on
the one hand, or the Purchaser, on the other hand, if the Closing has not
occurred on or prior to 5:00 p.m. (New York time) on the date which is 120 days
following the date of this Agreement (the "Termination Date");
(c) by either the Sellers, on the one hand, or the Purchaser, on the
other hand, if any Governmental Authority with jurisdiction over such matters
shall have issued a final and nonappealable Governmental Order permanently
restraining, enjoining or otherwise prohibiting
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the consummation of the transactions contemplated by this Agreement; provided,
however, that none of the Sellers or the Purchaser may terminate this Agreement
pursuant to this Section 8.1(c) unless the party seeking to so terminate this
Agreement has used all commercially reasonable efforts to oppose any such
Governmental Order or to have such Governmental Order vacated or made
inapplicable to the transactions contemplated by this Agreement; or
(d) by the Purchaser in accordance with the provisions of Section
6.11 hereof.
8.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 8.1 hereof, this Agreement shall become null and void and neither party
hereto shall have any further liability hereunder except that (i) the provisions
of Sections 6.3, 6.7 and 6.8 and Article VIII and IX generally shall remain in
full force and effect, and (ii) each party hereto shall remain liable to each
other party hereto for any willful breach of its obligations under this
Agreement prior to such termination.
ARTICLE IX.
MISCELLANEOUS
9.1 Indemnification.
(a) All of the representations, warranties, covenants and agreements
set forth in this Agreement or in any certificate or other writing delivered in
connection with this Agreement shall survive the Closing and the consummation of
the transactions contemplated hereby and shall continue in full force and effect
until the Applicable Limitation Date (as defined below); provided, however, that
no party shall be entitled to recover for any Loss (as defined below) under this
Section 9.1 relating to a breach of representations and warranties set forth
herein, unless written notice thereof is delivered to the other Parties prior to
the Applicable Limitation Date.
For purposes of this Agreement, the term "Applicable Limitation
Date" shall be the first anniversary of the Closing Date, except that (i) there
shall be no Applicable Limitation Date (i.e., such representations and
warranties shall survive forever) with respect to any Loss arising from or
relating to a breach of the representations and warranties set forth in Sections
4.1(a) (Organization), 4.2 (Authority), 4.3 (No Violation), 4.19 (Brokers), and,
solely to the extent related to the foregoing subsections, Section 4.21 (Closing
Date), and Sections 5.1 (Organization), 5.2 (Authority), 5.6 (Brokers), and
solely to the extent related to the foregoing subsections, Section 5.8 (Closing
Date), and (ii) with respect to any Loss arising from or relating to a breach of
the representations and warranties set forth in Section 4.18 (Taxes), the
Applicable Limitation Date shall be, with respect to Federal Income Taxes, the
third anniversary of the date of filing of the applicable IRS Form 1120S by the
Company and, with respect to all other Taxes, the fourth anniversary of the
Closing Date.
(b) Subject to the limitations set forth in clause (c) below, the
Sellers shall indemnify the Purchaser, its Affiliates, members, managers,
officers, employees, agents,
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representatives, permitted successors and assigns (collectively, the "Purchaser
Indemnitees") in respect of, and save and hold each Purchaser Indemnitee
harmless against, and pay on behalf of or reimburse each Purchaser Indemnitee
for, as and when incurred at any time after the Closing Date, any Loss which any
such Purchaser Indemnitee may suffer, sustain or become subject to, as a result
of, in connection with, relating or incidental to or by virtue of: (i) any
breach of any representation, warranty, covenant or agreement made by any Seller
in this Agreement or any facts or circumstances constituting such a breach; or
(ii) any Excluded Liability.
(c) The Purchaser Indemnitees shall not be entitled to recover for
any Losses arising from or relating to a breach of representations and
warranties set forth in Article IV (other than Losses arising from or relating
to a breach of representation or warranty set forth in such Article having no
Applicable Limitation Date (as described in clause (a) above)), (i) unless the
aggregate Losses for all such breaches exceed $50,000, provided that thereafter
the Purchaser may recover only such Losses in excess of $50,000 and (ii) to the
extent the aggregate amount of such Losses for which the Purchaser is entitled
to recover exceeds the sum of $1,000,000. Further, other than Losses with
respect to claims arising out of or relating to fraud, gross negligence, bad
faith or willful misconduct, the Purchaser Indemnitees shall not be entitled to
recover for Losses under this Section 9.1 or otherwise to the extent such Losses
are reflected expressly as a Liability on the Closing Balance Sheet and taken
into account by the Parties in determining the Working Capital.
(d) The Purchaser shall indemnify Sellers and their Affiliates,
officers, directors, employees, agents, representatives and permitted successors
and assigns (collectively, "Seller Indemnitees") in respect of, and save and
hold each of them harmless from and against, and pay on behalf of or reimburse
each Seller Indemnitee for, as and when incurred at any time after the Closing
Date or such earlier date when this Agreement may be terminated in accordance
with the provisions hereof, any Loss which such Seller Indemnitee may suffer,
sustain or become subject to, as the result of, in connection with, relating to
or incidental to or by virtue of: (i) the breach by the Purchaser of any
representation, warranty, covenant or agreement made by the Purchaser contained
in this Agreement, (ii) any Assumed Liability or (iii) any Liability arising out
of the Purchaser's ownership of the Purchased Assets and operation of the
Business after the Closing Date, including any Liability under Environmental
Laws arising from the Purchaser's acts.
(e) If a party hereto seeks indemnification under this Section 9.1,
such party (the "Indemnified Party") shall give written notice to the other
party (the "Indemnifying Party") of the facts and circumstances giving rise to
the claim. In that regard, if any suit, action, claim, Liability or obligation
(a "Proceeding") shall be brought or asserted by any third party which, if
adversely determined, would entitle the Indemnified Party to indemnity pursuant
to this Section 9.1, the Indemnified Party shall within thirty (30) days notify
the Indemnifying Party of the same in writing, specifying in detail the basis of
such claim and the facts pertaining thereto, provided, that the failure to so
notify an Indemnifying Party shall not relieve the Indemnifying Party of its
obligations hereunder except to the extent such failure shall have harmed the
Indemnifying Party. The Indemnifying Party, if it so elects, shall assume and
control the defense of such Proceeding (and shall consult with the Indemnified
Party with respect thereto), including the employment of
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counsel reasonably satisfactory to the Indemnified Party and the payment of
expenses; provided, however, that in the event any Proceeding shall be brought
or asserted by any third party which, if adversely determined, would not entitle
the Indemnified Party to full Indemnity pursuant to this Section 9.1, the
Indemnified Party may elect to participate in a joint defense of such Proceeding
(a "Joint Defense Proceeding") for which the expenses of such joint defense will
be shared equally by such parties and the employment of counsel shall be
reasonably satisfactory to both parties. If the Indemnifying Party elects to
assume and control the defense of a Proceeding, it will provide notice thereof
within thirty (30) days after the Indemnified Party has given notice of the
matter and if such Proceeding is not a Joint Defense Proceeding, the Indemnified
Party shall have the right to employ counsel separate from counsel employed by
the Indemnifying Party in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel employed by the Indemnified
Party shall be at the expense of the Indemnified Party unless (i) the employment
thereof has been specifically authorized by the Indemnifying Party in writing or
(ii) the Indemnifying Party has failed to assume the defense and employ counsel.
The Indemnifying Party shall not be liable for any settlement of any Proceeding,
the defense of which it has elected to assume, which settlement is effected
without the written consent of the Indemnifying Party; provided that no
settlement of a Joint Defense Proceeding may be effected without the written
consent of both parties. If there shall be a settlement to which the
Indemnifying Party consents or a final judgment for the plaintiff in any
Proceeding, the defense of which the Indemnifying Party has elected to assume,
the Indemnifying Party shall indemnify the Indemnified Party with respect to the
settlement or judgment. If the Indemnifying Party elects to assume and control
the defense or in the event of a Joint Defense Proceeding, the Indemnified Party
shall take all reasonable efforts necessary to assist the Indemnifying Party in
such defense.
(f) The Indemnifying Party shall pay the Indemnified Party in
immediately available funds promptly after the Indemnified Party provides the
Indemnifying Party with written notice of any Loss incurred by the Indemnified
Party hereunder but in any event not later than thirty (30) days after the
Indemnifying Party received notice of a Loss.
(g) In addition to any other remedies, the Purchaser shall be
entitled to set-off any amounts due or payable by the Sellers to the Purchaser
pursuant to, under or in connection with this Agreement against any amount
otherwise due or payable by the Purchaser to the Sellers.
(h) This Section 9.1 shall provide the exclusive remedy of the
Sellers in respect of any breach by the Purchaser of any of its representations
and warranties contained herein or in respect of any Assumed Liability. This
Section 9.1 shall provide the exclusive remedy of the Purchaser in respect of
any breach by any Seller of its representations and warranties or in respect of
any Excluded Liability.
9.2 Notices. All notices, requests, demands, claims and other
communications that are required or may be given pursuant to this Agreement must
be in writing and delivered personally against written receipt, by a recognized
courier service, by a recognized overnight delivery service, by telecopy or by
registered or certified mail, return receipt requested, postage
42
<PAGE> 48
prepaid, to the parties at the following addresses (or to the attention of such
other person or such other address as any party may provide to the other parties
by notice in accordance with this Section 9.2):
43
<PAGE> 49
if to the Purchaser, to: with a copy to:
------------------------ ---------------
TransWestern Publishing Company, LLC Kirkland & Ellis
8344 Clairemont Mesa Blvd. 200 East Randolph Drive
San Diego, CA 92111 Chicago, IL 60601
Attention: Joan M. Fiorito Attention: Wendy L. Chronister, Esq.
Facsimile No.: 858-292-4125 Facsimile No.: 312-861-2200
if to any of the Sellers, to:
-----------------------------
c/o The New York Times Company
229 West 43rd Street
New York, NY 10036
Attention: Solomon B. Watson IV, Esq.
Facsimile No.: 212-556-4634
Any such notice or other communication will be deemed to have been given (i) if
personally delivered, when so delivered, against written receipt, (ii) if sent
by a nationally recognized overnight delivery service which guarantees next day
delivery, one (1) Business Day after being so sent, (iii) if given by
telecopier, once such notice or other communication is transmitted to the
facsimile number specified above and the appropriate answer back or telephonic
confirmation is received, provided that such notice or other communication is
promptly thereafter delivered in accordance with the provisions of clauses (i),
(ii) or (iv) hereof, or (iv) if mailed by registered or certified mail, return
receipt requested, postage prepaid and addressed to the intended recipient as
set forth above, five (5) Business Days after being so mailed. Any notice,
request, demand, claim or other communication given hereunder using any other
means (including ordinary mail or electronic mail) shall not be deemed to have
been duly given unless and until such notice, request, demand, claim or other
communication actually is received by the individual for whom it is intended.
9.3 Attorneys' Fees and Costs. If attorneys' fees or other costs are
incurred to secure performance of any obligations hereunder, or to establish
damages for the breach thereof or to obtain any other appropriate relief,
whether by way of prosecution or defense, the prevailing party will be entitled
to recover reasonable attorneys' fees and costs incurred in connection
therewith.
9.4 Assignment. Except as provided in Section 6.12, neither this
Agreement nor any of the rights, interests or obligations hereunder may be
assigned or delegated by any Seller or the Purchaser without the prior written
consent of the other parties and any purported assignment or delegation in
violation hereof shall be null and void except for assignments and transfers by
operation of Law.
44
<PAGE> 50
9.5 Amendments and Waiver; Exclusive Remedies. This Agreement may not be
modified or amended except in writing signed by the party or parties against
whom enforcement is sought. The terms of this Agreement may be waived only by a
written instrument signed by the party or parties waiving compliance. No waiver
of any provision of this Agreement shall be deemed or shall constitute a waiver
of any other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise provided. No delay on the part
of any party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
Whenever this Agreement requires or permits consent by or on behalf of a party,
such consent shall be given in writing in a manner consistent with the
requirements for a waiver of compliance as set forth in this Section 9.5. The
rights and remedies herein provided shall be the exclusive rights and remedies
available to the parties hereto at law or in equity.
9.6 Entire Agreement. This Agreement and the related documents contained
as Exhibits and Schedules hereto or expressly contemplated hereby (including the
Operative Agreements) contain the entire understanding of the parties relating
to the subject matter hereof and supersede all prior written or oral and all
contemporaneous oral agreements and understandings relating to the subject
matter hereof. The Exhibits and Schedules to this Agreement are hereby
incorporated by reference into and made a part of this Agreement for all
purposes. Disclosures included in any Schedule shall be considered disclosures
for all Schedules.
9.7 Representations and Warranties Exclusive. The representations,
warranties, covenants and agreements set forth in this Agreement and the
Operative Agreements constitute all the representations, warranties, covenants
and agreements of the parties hereto and their respective shareholders,
directors, officers, employees, affiliates, advisors (including financial, legal
and accounting), agents and representatives and upon which the parties have
relied. In particular, and without in any way limiting the generality of the
foregoing, the Purchaser acknowledges and agrees that, in making its decision to
purchase the Purchased Assets, it is not relying on (a) any information set
forth in the information memorandum distributed in connection with the proposed
sale of the Business, or (b) any information or materials, oral or written,
distributed or made available to the Purchaser prior to the date hereof other
than matters set forth in this Agreement, including the Schedules and/or the
Operative Agreements or (c) any financial projection, forecast or business plan
relating to the Business. With respect to any projection, forecast or business
plan delivered by or on behalf of the Sellers to the Purchaser, the Purchaser
acknowledges that (i) there are uncertainties inherent in attempting to make
such projections, forecasts and plans, (ii) it is familiar with such
uncertainties, (iii) it is taking full responsibility for making its own
evaluation of the adequacy and accuracy of all such projections, forecasts and
plans so furnished to it, and (iv) it shall have no claim of any kind whatsoever
against any Person with respect thereto.
9.8 No Third Party Beneficiary. This Agreement is made for the sole
benefit of the parties hereto, and their respective successors, executors and
permitted assigns, and nothing contained herein, express or implied, is intended
to or shall confer upon any other Person any
45
<PAGE> 51
third party beneficiary right or any other legal or equitable rights, benefits
or remedies of any nature whatsoever under or by reason of this Agreement
(except to the extent that any Affiliates of the Purchaser or any Seller are
expressly covered by any indemnity herein).
9.9 Governing Law. This Agreement will be governed by and construed and
interpreted in accordance with the substantive Laws of the State of New York,
without giving effect to any conflicts of Law, rule or principle that might
require the application of the Laws of another jurisdiction.
9.10 Neutral Construction. The parties to this Agreement agree that this
Agreement was negotiated fairly between them at arms' length and that the final
terms of this Agreement are the product of the parties' negotiations. Each party
represents and warrants that it has sought and received legal counsel of its own
choosing with regard to the contents of this Agreement and the rights and
obligations affected hereby. The parties agree that this Agreement shall be
deemed to have been jointly and equally drafted by them, and that the provisions
of this Agreement therefore should not be construed against a party or parties
on the grounds that the party or parties drafted or was more responsible for
drafting the provision(s).
9.11 Severability. In the event that any one or more of the provisions
or parts of a provision contained in this Agreement shall for any reason be held
to be invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or part of a provision of this Agreement or any other jurisdiction, but this
Agreement shall be reformed and construed in any such jurisdiction as if such
invalid or illegal or unenforceable provision or part of a provision had never
been contained herein and such provision or part shall be reformed so that it
would be valid, legal and enforceable to the maximum extent permitted in such
jurisdiction, provided that any such reform or construction does not affect the
economic or legal substance of the transactions contemplated hereby in a manner
adverse to any party.
9.12 Bulk Sales Laws. The parties hereby waive compliance with the Bulk
Sales Laws of any State in which the Purchased Assets are located or in which
operations relating to the Business are conducted.
9.13 Heading; Interpretation; Schedules and Exhibits. The descriptive
headings of the several Articles and Sections of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement. References to
Sections or Articles, unless otherwise indicated, are references to Sections and
Articles of this Agreement. The word "including" means including without
limitation. Words (including defined terms) in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to
include the other gender as the context requires. The terms "hereof," "herein"
and "herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole (including all of the Schedules
and Exhibits hereto) and not to any particular provision of this Agreement
unless otherwise specified. It is understood and agreed that neither the
specifications of any dollar amount in this Agreement nor the inclusion of any
specific item in the Schedules or Exhibits is intended to imply that such
amounts or higher or lower amounts, or the items so
46
<PAGE> 52
included or other items, are or are not material, and neither party shall use
the fact of setting of such amounts or the fact of the inclusion of such item in
the Schedules or Exhibits in any dispute or controversy between the parties as
to whether any obligation, item or matter is or is not material for purposes
hereof.
9.14 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (II) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT MAKES SUCH WAIVER
VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.14.
9.15 Counterparts. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, each of which shall be
deemed an original and all of which together will constitute one and the same
instrument.
[Remainder of Page Intentionally Left Blank]
47
<PAGE> 53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer as of the date first above written.
LAKELAND LEDGER PUBLISHING
CORPORATION
By:_________________________________
Name: Rhonda L. Brauer
Title: Secretary
NYT MANAGEMENT SERVICES
By: Globe Newspaper Company, Inc.,
as Trustee
By:_________________________________
Name: Robert S. Tobin
Title: Assistant Treasurer
NYT FLORIDA HOLDINGS, INC.
By:_________________________________
Name: Rhonda L. Brauer
Title: Assistant Secretary
THE HOUMA COURIER NEWSPAPER
CORPORATION
By:_________________________________
Name: Rhonda L. Brauer
Title: Assistant Secretary
TRANSWESTERN PUBLISHING COMPANY,
LLC
By: TransWestern Communciations
Company, Inc.,as Managing Member
By:_________________________________
Name: Joan M. Fiorito
Title: Vice President, CFO
48
<PAGE> 54
SCHEDULE A
Lakeland Ledger Publishing Corporation:
The Phone Book for Polk County (Lakeland, FL)
The Phone Book for Plant City (Plant City, FL)
The Highlands County Phone Book (Sebring, FL)
NYT Florida Holdings, Inc.:
The Source Book (Palatka, FL)
The Source Book (Lake City, FL)
NYT Management Services:
The Source Book (Ocala, FL)
The Source Book (Gainesville, FL)
The Houma Courier Newspaper Corporation:
St. Landry Evangeline Phone Book (Opelousas, LA)
The Source Book of Terrebonne, LaFourche, Assumption Parishes (Houma, LA)
49
<PAGE> 55
SCHEDULE 1.1(Q) - LIST OF EXECUTIVES - KNOWLEDGE OF SELLERS
Lakeland Ledger Publishing Corporation:
The Phone Book for Polk County (Lakeland, FL) - RICHARD SHAPIRO AND
REGGIE DAVENPORT The Phone Book for Plant City (Plant City, FL) -
RICHARD SHAPIRO AND REGGIE DAVENPORT The Highlands County Phone Book
(Sebring, FL) - RICHARD SHAPIRO AND REGGIE DAVENPORT
NYT Florida Holdings, Inc.:
The Source Book (Palatka, FL) - MITCH GLAESER AND REGGIE DAVENPORT
The Source Book (Lake City, FL)- MITCH GLAESER AND REGGIE DAVENPORT
NYT Management Services:
The Source Book (Ocala, FL)- MITCH GLAESER AND REGGIE DAVENPORT
The Source Book (Gainesville, FL) - MITCH GLAESER AND REGGIE DAVENPORT
The Houma Courier Newspaper Corporation:
St. Landry Evangeline Phone Book (Opelousas, LA) - BILL BROWNLEE AND
REGGIE DAVENPORT
The Source Book of Terrebonne, LaFourche, Assumption
Parishes (Houma, LA) - MILES FORREST AND REGGIE DAVENPORT
50
<PAGE> 56
SCHEDULE 5.3
THIRD PARTY CONSENTS - PURCHASER
None.
<PAGE> 57
SCHEDULE 5.4
GOVERNMENT CONSENTS - PURCHASER
None.
<PAGE> 58
SCHEDULE 5.5
LITIGATION - PURCHASER
None.
<PAGE> 59
EXHIBITS TO ASSET PURCHASE AGREEMENT
<PAGE> 60
EXHIBIT A
This instrument is prepared by
and when recorded return to:
E. Snow Martin, Jr.
Martin & Martin, P.A.
Post Office Box 117
Lakeland, Florida 33802-0117
DEED
The Grantor, LAKELAND LEDGER PUBLISHING CORPORATION, A FLORIDA
CORPORATION, whose mailing address is 401 S. Missouri Avenue, Lakeland, Florida
33815, in consideration of Ten Dollars and other valuable consideration received
from Grantee, __________________, whose mailing address is
______________________________, hereby grants and conveys to the Grantee the
following described real property in Polk County, Florida, to-wit:
PARCEL NO.
See Exhibit "A" hereto attached and by reference made a part hereof.
This conveyance is subject to real estate taxes for 2000 and subsequent
years, easements and restrictions of record.
The Grantor covenants that the property is free of all encumbrances,
except as stated above and as otherwise provided in the Asset Purchase Agreement
dated as of June __, 2000 by and among [name of Purchaser], Lakeland Ledger
Publishing Corporation, NYT Management Services, NYT Florida Holdings, Inc., and
The Houma Courier Newspaper Corporation, that lawful seisin of and good right to
convey the property is vested in the Grantor and that the Grantor hereby fully
warrants the title to the property and will defend the same against the lawful
claims of all persons claiming by, through or under the Grantor.
Dated this ____ day of ________________, 2000.
Signed in the presence of: LAKELAND LEDGER PUBLISHING
CORPORATION, A FLORIDA CORPORATION
_________________________ BY: ______________________________
Name: Print Name: ______________________
Its: _____________________________
_________________________
Name:
STATE OF FLORIDA
COUNTY OF POLK
The foregoing deed was acknowledged before me this ____ day of
_____________, 2000 by __________________, as _______________ of LAKELAND LEDGER
PUBLISHING CORPORATION, A FLORIDA CORPORATION, on behalf of the corporation who
is personally known to me or has produced a current Florida
driver's license as identification and who did not take an oath.
(seal) __________________________________
Notary Public
<PAGE> 61
EXHIBIT B
THIS INSTRUMENT WAS PREPARED BY
AND WHEN RECORDED RETURN TO:
E. Snow Martin, Jr.
Martin & Martin, P.A.
Post Office Box 117
Lakeland, Florida 33802-0117
ASSIGNMENT OF LEASE AGREEMENT
NYT MANAGEMENT SERVICES, A MASSACHUSETTS BUSINESS TRUST, SUCCESSOR TO
THE GAINESVILLE SUN PUBLISHING COMPANY, hereby assigns, transfers and sets over
its right as Tenant in that certain Lease Agreement, dated July 19, 1995,
between NAYLOR REAL ESTATE (U.S.) INC. ("Owner") and THE GAINESVILLE SUN
PUBLISHING COMPANY ("Tenant") for the lease of property described in Attachment
1 hereto to TRANSWESTERN PUBLISHING COMPANY, LLC, said leasehold title is now
owned by MICHAEL S. RYALS AND JANE RYALS, husband and wife.
DATED: JULY ___, 2000.
Signed, sealed and delivered
in the presence of: NYT MANAGEMENT SERVICES,
A MASSACHUSETTS BUSINESS TRUST
______________________________ By: Globe Newspaper Company, Inc.,
Name: as Trustee
_____________________________ By:_______________________________
Name: Print Name: William B. Huff
Its: President
STATE OF MASSACHUSETTS
COUNTY OF SUFFOLK
The foregoing instrument was acknowledged before me this _____ day of
July, 2000 by William B. Huff, as President of Globe Newspaper Company, Inc.,
Trustee of NYT MANAGEMENT SERVICES, in his authorized capacity, who is
personally known to me or has produced a current driver's license as
identification and who did not take an oath.
__________________________________
(seal) Notary Public
1
<PAGE> 62
ASSUMPTION OF LEASE AGREEMENT
TRANSWESTERN PUBLISHING COMPANY, LLC, as Assignee, assumes and agrees to
perform the Tenant's obligations under the foregoing Lease Agreement.
DATED: JULY ___, 2000.
Signed, sealed and delivered
in the presence of: TRANSWESTERN PUBLISHING
COMPANY, LLC
______________________________ By:_______________________________
Name: Print Name:_______________________
Its:______________________________
______________________________
Name:
STATE OF _____________________
COUNTY OF ____________________
The foregoing instrument was acknowledged before me this _____ day of
July, 2000 by ___________________, as _______________ of TRANSWESTERN PUBLISHING
COMPANY, LLC, in his/her authorized capacity, who is personally known to me or
has produced a current driver's license as identification and who did not take
an oath.
__________________________________
(seal) Notary Public
2
<PAGE> 63
CONSENT TO ASSIGNMENT OF LEASE AGREEMENT
MICHAEL S. RYALS AND JANE RYALS, husband and wife, hereby consent to the
foregoing Assignment of Lease Agreement and the assumption of the Lease
Agreement by the Assignee, TRANSWESTERN PUBLISHING COMPANY, LLC.
DATED: JULY ___, 2000.
Signed, sealed and delivered in the presence of:
______________________________ __________________________________
Name: MICHAEL S. RYALS
______________________________
Name:
______________________________ __________________________________
Name: JANE RYALS
______________________________
Name:
STATE OF ____________________
COUNTY OF ___________________
The foregoing instrument was acknowledged before me this _____ day of
July, 2000 by MICHAEL S. RYALS AND JANE RYALS, husband and wife, who are
personally known to me or have produced current driver's licenses as
identification and who did not take an oath.
__________________________________
(seal) Notary Public
3
<PAGE> 64
ATTACHMENT 1
Commercial Office Building and Land located at 7208 West University
Avenue, Gainesville, Alachua County, Florida.
4
<PAGE> 65
EXHIBIT C
FORM OF BILL OF SALE
WHEREAS, TransWestern Publishing Company, a Delaware limited liability
company ("Purchaser"), and [Lakeland Ledger Publishing Corporation, a Florida
corporation ("Lakeland")], [NYT Management Services, a Massachusetts business
trust ("NYTMS")], [NYT Florida Holdings, Inc. ("NYTF"), a Delaware corporation],
[The Houma Courier Newspaper Corporation, a Delaware corporation ("Houma")],
have entered into an Asset Purchase Agreement, dated as of June __, 2000 (the
"Purchase Agreement"), pursuant to which, among other things,
[Lakeland/NYTMS/NYTF/Houma] agreed to sell and assign the Purchased Assets (as
defined therein) held by it (the "[Lakeland/NYTMS/ NYTF/Houma] Assets") to
Purchaser;
NOW, THEREFORE, [Lakeland/NYTMS/NYTF/Houma], for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, has
bargained and sold and by this instrument does grant, sell, assign, transfer,
set over and convey to Purchaser, its successors and assigns, all of
[Lakeland/NYTMS/NYTF/Houma]'s right, title and interest in and to such
[Lakeland/NYTMS/NYTF/Houma] Assets;
TO HAVE AND TO HOLD said [Lakeland/NYTMS/NYTF/Houma] Assets unto
Purchaser, its successors and assigns, to and for its own use forever.
Neither the making nor the acceptance of this assignment and transfer
shall (i) constitute a waiver or release by [Lakeland/NYTMS/NYTF/Houma] of any
liabilities, duties or obligations imposed upon any of them by the terms of the
Purchase Agreement or (ii) impose any additional liabilities, duties or
obligations upon [Lakeland/NYTMS/NYTF/Houma].
[Signature page follows]
<PAGE> 66
IN WITNESS WHEREOF, [Lakeland/NYTMS/NYTF/Houma] has executed this Bill
of Sale on the day of ________, 2000.
[NAME OF SELLER]
By: ________________________________________
Name:
Title:
<PAGE> 67
EXHIBIT D
FORM OF
INSTRUMENT OF ASSIGNMENT AND ASSUMPTION
This Instrument of Assignment and Assumption (this "Instrument") is made
and entered into as of _______ __, 2000 by and between Lakeland Ledger
Publishing Corporation, a Florida corporation ("Lakeland"), NYT Management
Services, a Massachusetts business trust ("NYTMS"), NYT Florida Holdings, Inc.
("NYTF"), a Delaware corporation, The Houma Courier Newspaper Corporation, a
Delaware corporation ("Houma"), and TransWestern Publishing Company, a Delaware
limited liability company ("Purchaser").
WHEREAS, Purchaser, Lakeland, NYTMS, NYTF and Houma have entered into an
Asset Purchase Agreement, dated as of June __, 2000 (the "Purchase Agreement"),
pursuant to which, among other things, [Lakeland/NYTMS/NYTF/Houma] agreed to
sell and assign the Purchased Assets (as defined therein) held by it (the
"[Lakeland/NYTMS/ NYTF/Houma] Assets") to Purchaser, and as part of the purchase
price for the [Lakeland/NYTMS/NYTF/Houma] Assets, Purchaser agreed to assume the
Assumed Liabilities (as defined therein) relating to the
[Lakeland/NYTMS/NYTF/Houma] Assets from [Lakeland/NYTMS/NYTF/Houma] (the
"Assumed [Lakeland/NYTMS/NYTF/Houma] Liabilities"); and
WHEREAS, the parties hereto desire to execute this Instrument to further
evidence [Lakeland/NYTMS/NYTF/Houma]'s assignment of the
[Lakeland/NYTMS/NYTF/Houma] Assets to Purchaser, and Purchaser's assumption of
the Assumed [Lakeland/NYTMS/ NYTF/Houma] Liabilities from
[Lakeland/NYTMS/NYTF/Houma];
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
1. Definitions. Except as otherwise provided herein, all capitalized
terms contained and not defined herein (including the recitals hereto) shall
have the respective meanings ascribed to them in the Purchase Agreement.
2. Assignment. [Lakeland/NYTMS/NYTF/Houma] hereby sells, transfers,
conveys, assigns, sets over and delivers to Purchaser, its successors and
assigns, all of the [Lakeland/NYTMS/NYTF/Houma] Assets, including, without
limitation, all transferable Business Contracts and any commitments and
undertakings which constitute a portion of the [Lakeland/NYTMS/NYTF/Houma]
Assets (all of the foregoing being collectively hereinafter referred to as the
"Assigned Agreements").
3. Assumption of Assumed [Lakeland/NYTMS/NYTF/Houma] Liabilities.
Purchaser hereby expressly succeeds to, is substituted for, and accepts, assumes
and undertakes
<PAGE> 68
to pay, perform and discharge, all of the Assumed [Lakeland/NYTMS/NYTF/Houma]
Liabilities.
4. Assignability of Assigned Agreements. To the extent that any of the
Assigned Agreements are not assignable without the consent of another party and
such consent has not been obtained on or prior to the Closing Date, this
Instrument shall not constitute an assignment or attempted assignment which
would constitute a breach thereof. Any obligation of [Lakeland/NYTMS/NYTF/Houma]
under the Purchase Agreement to effect the transfer of any Assigned Agreement to
Purchaser shall not be terminated or abridged by this provision, and the terms
of Section 2.5 of the Purchase Agreement shall continue to apply with respect
thereto.
5. Conflicts with Purchase Agreement. [Lakeland/NYTMS/NYTF/Houma]'s
assignment of the [Lakeland/NYTMS/NYTF/Houma] Assets and Purchaser's assumption
of the Assumed [Lakeland/NYTMS/NYTF/Houma] Liabilities set forth in this
Instrument shall not be construed to defeat, impair or limit in any way the
rights, claims or remedies of [Lakeland/NYTMS/NYTF/Houma] or Purchaser under the
terms and provisions of the Purchase Agreement. In the event of a conflict
between the terms and conditions set forth in this Instrument and the terms and
conditions set forth in the Purchase Agreement, or the interpretation and
application thereof, the terms and conditions set forth in the Purchase
Agreement shall prevail, govern and control in all respects.
6. Successors and Assigns. This Agreement shall be enforceable against,
and shall inure to the benefit of, the respective successors and assigns of each
of [Lakeland/NYTMS/NYTF/Houma] and Purchaser.
7. Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the substantive laws of the State of New York,
without giving effect to any conflicts of law rule or principle that might
require application of the laws of another jurisdiction.
8. Counterparts. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, all of which together
shall constitute one and the same instrument.
[signature page follows]
2
<PAGE> 69
IN WITNESS WHEREOF, the parties have executed this Instrument as of the
date first above written.
[SELLER]
Attest:
Secretary By:________________________________________
Name:
Title:
TRANSWESTERN PUBLISHING COMPANY
By: ___________________, its Managing Member
Attest:
Secretary By:________________________________________
Name:
Title:
<PAGE> 70
EXHIBIT E
FORM OF ASSIGNMENT OF SELLER PROPRIETARY RIGHTS
This Assignment of Seller Proprietary Rights (this "Assignment"),
dated as of ________________, 2000, is entered into between [Lakeland Ledger
Publishing Corporation, a Florida corporation ("Lakeland"),] [NYT Management
Services, a Massachusetts business trust ("NYTMS"),] [NYT Florida Holdings, Inc.
("NYTF"), a Delaware corporation,] [The Houma Courier Newspaper Corporation, a
Delaware corporation ("Houma"),] and TransWestern Publishing Company, a Delaware
limited liability company ("Purchaser"), and is made contemporaneously with the
acquisition by Purchaser of certain assets of [Lakeland/NYTMS/NYTF/Houma].
RECITALS
A. Purchaser, Lakeland, NYTMS, NYTF and Houma have entered into an
Asset Purchase Agreement, dated as of June __, 2000 (the "Purchase Agreement"),
which provides, among other things, for the acquisition by Purchaser of certain
assets of [Lakeland/NYTMS/NYTF/Houma].
B. [Lakeland/NYTMS/NYTF/Houma] is the exclusive owner of all right,
title, and interest in and to the Proprietary Rights (as such term is defined in
the Asset Purchase Agreement) held by it (the "[Lakeland/NYTMS/NYTF/Houma]
Proprietary Rights").
C. [Lakeland/NYTMS/NYTF/Houma] desires to transfer and assign all of
its right, title, and interest in and to the [Lakeland/NYTMS/NYTF/Houma]
Proprietary Rights to Purchaser and Purchaser wishes to acquire the
[Lakeland/NYTMS/NYTF/Houma] Proprietary Rights.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for the
consideration specified in the Purchase Agreement and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
[Lakeland/NYTMS/NYTF/Houma] hereby grants, transfers, sells, assigns, conveys
and delivers to Purchaser all right, title, and interest in and to the
[Lakeland/NYTMS/NYTF/Houma] Proprietary Rights, including without limitation,
United States registrations for any [Lakeland/NYTMS/NYTF/Houma] Proprietary
Rights and all extensions thereto and re-issues thereof and all foreign
counterparts thereto, together with the goodwill of all of the foregoing and all
claims for damages and/or injunctive relief by reason of past, present or future
infringement of any [Lakeland/NYTMS/NYTF/Houma] Proprietary Rights, by any party
or parties, with the right to sue for and collect the same for its own account
and use.
[signature page follows]
<PAGE> 71
IN WITNESS WHEREOF, this Assignment has been duly executed on
behalf of [Lakeland/NYTMS/NYTF/Houma] by its duly authorized officer as of the
date first written above.
[SELLER]
____________________________________
Name:
Title:
STATE OF ____________________________ )
) ss.
COUNTY OF____________________________
On ____________________, before me, _____________________, personally appeared
________________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
______________________________________ [SEAL]
Notary Public in and for said
County and State
<PAGE> 72
EXHIBIT G
[SELLER]
OFFICER'S CERTIFICATE
Pursuant to Section 3.2(b) of that certain Asset Purchase
Agreement, dated as of June __, 2000 (the "Asset Purchase Agreement"), by and
among Lakeland Ledger Publishing Corporation, a Florida corporation (the
"Lakeland"), NYT Management Services, a Massachusetts business trust ("NYTMS"),
NYT Florida Holdings, Inc., a Delaware corporation ("NYTF"), The Houma Courier
Newspaper Corporation, a Delaware corporation ("Houma"), and TransWestern
Publishing Company, a Delaware limited liability company ("Purchaser"), the
undersigned, ___________________, the ________________ of
[Lakeland/NYTMS/NYTF/Houma], does hereby certify, for and on behalf of
[Lakeland/NYTMS/ NYTF/Houma] and in its name, as follows:
(1) Each of the representations and warranties of
[Lakeland/NYTMS/ NYTF/Houma] contained in the Asset Purchase Agreement
are true and correct in all material respects as of the date hereof with
the same effect as though such representations and warranties had been
made on and as of the date hereof (other than any representation or
warranty that is expressly made as of a specified date, which was true
and correct in all material respects as of such specified date).
(2) [Lakeland/NYTMS/NYTF/Houma] has performed and complied in
all material respects with all the covenants and agreements required to
be performed and complied with by it prior to the date hereof.
IN WITNESS WHEREOF, [Lakeland/NYTMS/NYTF/Houma] has caused this
Certificate to be executed, for and on its behalf and in its name, by
the undersigned on and as of this ___ day of ________, 2000.
[SELLER]
By: ________________________________
Name:
Title:
<PAGE> 73
EXHIBIT H
[SELLER]
SECRETARY'S CERTIFICATE
Pursuant to Section 3.2(b) of that certain Asset Purchase
Agreement, dated as of June __, 2000 (the "Asset Purchase Agreement"), by and
among Lakeland Ledger Publishing Corporation, a Florida corporation
("Lakeland"), NYT Management Services, a Massachusetts business trust ("NYTMS"),
NYT Florida Holdings, Inc., a Delaware corporation ("NYTF"), The Houma Courier
Newspaper Corporation, a Delaware corporation ("Houma"), and TransWestern
Publishing Company, a Delaware limited liability company ("Purchaser"), the
undersigned, ___________________, the Secretary of [Lakeland/NYTMS/NYTF/Houma],
does hereby certify, for and on behalf of [Lakeland/NYTMS/NYTF/Houma] and in its
name, as follows: [following text to be modified as appropriate for NYTMS, a
business trust]
(1) Attached hereto as Exhibit A is a true, complete and correct
copy of the [[Certificate] [Articles] of Incorporation] [Declaration of
Trust] of [Lakeland/NYTMS/NYTF/Houma] filed on __________________ (the
"[Certificate] [Articles of Incorporation] [Declaration of Trust"), and
no amendment to the [[Certificate] [Articles] of Incorporation]
[Declaration of Trust] has been authorized or become effective since the
date of filing thereof, no amendment or other document relating to or
affecting the [[Certificate] [Articles] of Incorporation] [Declaration
of Trust] has been filed in the office of the Secretary of State of the
[State] [Commonwealth] of _______ since such date and no action has been
taken by [Lakeland/NYTF/NYTMS/Houma], its [shareholders] [beneficial
owners], [directors] or officers in contemplation of the filing of any
such amendment or other document or in contemplation of the liquidation
or dissolution of [Lakeland/NYTMS/NYTF/Houma].
[(2) Attached hereto as Exhibit B is a true, complete and
correct copy of the By-laws of [Lakeland/NYTF/Houma] as amended and as
in full force and effect on the date hereof and at all times since
___________.] [not applicable for NYTMS]
(3) Attached hereto as Exhibit C are true, complete and correct
copies of resolutions adopted by the [Board of Directors of
[Lakeland/NYTF/Houma]
<PAGE> 74
(the "Board")] [Trustee of NYTMS (the "Trustee")] with respect to the
transactions contemplated thereby, which resolutions were duly and
validly adopted by unanimous written consent as of _______________. All
such resolutions are in full force and effect on the date hereof in the
form in which adopted without amendment, modification or revocation, and
no other resolutions have been adopted by the [Board or any committee
thereof] [Trustee] relating to the transactions contemplated thereby.
(4) Each of the following named individuals is a duly elected or
appointed qualified and acting officer of [Lakeland/NYTMS/NYTF/Houma]
who holds, and at all times since __________________ has held, the
offices set opposite such individual's name, and the signature written
opposite the name and title of such officer is such officer's genuine
signature:
Name Title
______________________________
______________________________
IN WITNESS WHEREOF, [Lakeland/NYTMS/NYTF/Houma] has caused this
Certificate to be executed, for and on its behalf and in its name, by the
undersigned on and as of this ___ day of ________, 2000.
[SELLER]
By: ________________________________
Name:
Title: Secretary
<PAGE> 75
I, _________, the __________ of [Lakeland/NYTMS/NYTF/Houma], do hereby
certify for and on behalf of [Lakeland/NYTMS/NYTF/Houma] that __________ is the
duly elected or appointed, qualified and acting Secretary of
[Lakeland/NYTMS/NYTF/Houma], and the signature set forth above is the genuine
signature of such officer.
_____________________________________________
Name:
<PAGE> 76
EXHIBIT I
FORM OF LEGAL OPINION OF SOLOMON B. WATSON IV
[subject to customary exceptions]
1. Each Seller is a corporation or a business trust, as the case may be,
duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its formation.
2. Each Seller has the requisite corporate or trust power and authority
execute and deliver the Asset Purchase Agreement and the Operative Agreements to
which it is a party, to perform its obligations thereunder and to consummate the
transactions contemplated thereby.
3. The execution, delivery and performance by each Seller of the Asset
Purchase Agreement and each of the Operative Agreements to which it is a party
have been duly authorized by all necessary corporate or trust action of such
Seller.
4. Each Seller has duly executed and delivered the Asset Purchase
Agreement and each of the Operative Agreements to which each Seller is a party
and each such document constitutes the legal, valid and binding obligation of
such Seller, enforceable against such Seller in accordance with its respective
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless of whether such
enforceability is considered in a proceeding at equity or law).
5. The execution, delivery and performance by each Seller of the Asset
Purchase Agreement and each of the Operative Agreements to which it is a party
do not, and the consummation of the transactions contemplated thereby will not,
(i) violate or conflict with the provisions of (A) the Sellers [Certificate]
[Articles] of Incorporation or the Sellers Bylaws (as to Lakeland, Florida
Holdings or Houma) or (B) the NYTMS Declaration of Trust (as to NYTMS), each as
amended and in effect as of the date hereof, (ii) except as contemplated by the
Asset Purchase Agreement and the Operative Agreements to which it is a party,
result in the imposition of any Encumbrance under, cause the acceleration of any
obligation under, or violate the terms, conditions or provisions of any,
Material Business Contract, or (iii) so far as known to me, violate any federal
or New York statute, rule or regulation, which in my experience would normally
apply to transactions of the type contemplated by the Asset Purchase Agreement
or the Operative Agreements to which such Seller is a party. No opinion is
expressed in this paragraph 5 as to the application of Sections 547 and 548 of
the federal Bankruptcy Code and comparable provisions of state law or of any
applicable fiduciary duty or antifraud, antitrust or trade regulation laws,
including, without limitation, the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
<PAGE> 77
EXHIBIT J
TRANSWESTERN PUBLISHING COMPANY
OFFICER'S CERTIFICATE
Pursuant to Section 3.3(c) of that certain Asset Purchase
Agreement, dated as of June __, 2000 (the "Asset Purchase Agreement"), by and
among Lakeland Ledger Publishing Corporation, a Florida corporation, NYT
Management Services, a Massachusetts business trust, NYT Florida Holdings, Inc.,
a Delaware corporation, The Houma Courier Newspaper Corporation, a Delaware
corporation, and TransWestern Publishing Company, LLC, a Delaware limited
liability company ("Purchaser"), the undersigned, _________________, the
_____________ of the Managing Member of Purchaser, does hereby certify, for and
on behalf of Purchaser and in its name, as follows:
(1) Each of the representations and warranties of Purchaser
contained in the Asset Purchase Agreement are true and correct in all
material respects as of the date hereof with the same effect as though
such representations and warranties had been made on and as of the date
hereof (other than any representation or warranty that is expressly made
as of a specified date, which was true and correct in all material
respects as of such specified date).
(2) Purchaser has performed and complied in all material
respects with all the covenants and agreements required to be performed
and complied with by it prior to the date hereof.
IN WITNESS WHEREOF, Purchaser has caused this Certificate to be
executed, for and on its behalf and in its name, by the undersigned on and as of
this ___ day of __________, 2000.
TRANSWESTERN PUBLISHING COMPANY, LLC
By: ___________________, its Managing Member
By: ________________________________________
Name:
Title:
<PAGE> 78
EXHIBIT K
TRANSWESTERN PUBLISHING COMPANY
SECRETARY'S CERTIFICATE
Pursuant to Section 3.3(c) of that certain Asset Purchase
Agreement, dated as of June __, 2000 (the "Asset Purchase Agreement"), by and
among Lakeland Ledger Publishing Corporation, a Florida corporation, NYT
Management Services, a Massachusetts business trust, NYT Florida Holdings, Inc.,
a Delaware corporation, The Houma Courier Newspaper Corporation, a Delaware
corporation, and TransWestern Publishing Company, LLC, a Delaware limited
liability company ("Purchaser"), the undersigned, _________________, the
Secretary of the Managing Member of Purchaser, does hereby certify, for and on
behalf of Purchaser and in its name, as follows:
(1) Attached hereto as Exhibit A is a true, complete and correct
copy of the Certificate of Formation of Purchaser filed on ___________
and all amendments thereto (as so amended, the "Certificate of
Formation"), and no amendment to the Certificate of Formation has been
authorized or become effective since the date of the last of such
amendments, no amendment or other document relating to or affecting the
Certificate of Formation has been filed in the office of the Secretary
of State of the State of Delaware since such date and no action has been
taken by Purchaser, its members or officers in contemplation of the
filing of any such amendment or other document or in contemplation of
the liquidation or dissolution of the Purchaser.
(2) Attached hereto as Exhibit B is a true, complete and correct
copy of the Operating Agreement of the Purchaser as in full force and
effect on the date hereof and at all times since ___________.
(3) Attached hereto as Exhibit C are true, complete and correct
copies of resolutions adopted by the Board of Directors of the [Managing
Member] of Purchaser (the "Board") with respect to the transactions
contemplated thereby, which resolutions were duly and validly adopted
[by unanimous written consent on ___________] [at a meeting of the Board
on ________________, at which a quorum was present and acting
throughout]. All such resolutions are in full force and effect on the
date hereof in the form in which adopted without amendment,
<PAGE> 79
modification or revocation, and no other resolutions have been adopted
by the Board or any committee thereof relating to the transactions
contemplated thereby.
(4) Each of the following named individuals is a duly elected or
appointed qualified and acting officer of Purchaser who holds, and at
all times since ________ has held, the offices set opposite such
individual's name, and the signature written opposite the name and title
of such officer is such officer's genuine signature:
Name Title
______________________________
______________________________
IN WITNESS WHEREOF, Purchaser has caused this Certificate to be
executed, for and on its behalf and in its name, by the undersigned on and as of
this ___ day of ________, 2000.
TRANSWESTERN PUBLISHING COMPANY, LLC
By: ___________________, its Managing Member
By: ________________________________________
Name:
Title: Secretary
I, _________, __________ of Purchaser, do hereby certify for and
on behalf of Purchaser and in its name, that __________ is the duly elected or
appointed, qualified and acting Secretary of Purchaser, and the signature set
forth above is the genuine signature of such officer.
______________________________________
Name:
<PAGE> 80
EXHIBIT L
FORM OF
LEGAL OPINION OF COUNSEL TO THE PURCHASER
[subject to customary exceptions]
1. The Purchaser is a limited liability company, duly formed, validly
existing and in good standing under the laws of the State of Delaware.
2. The Purchaser has the requisite limited liability company power and
authority to execute and deliver the Asset Purchase Agreement and the Operative
Agreements to which it is a party and to assume and perform the Assumed
Liabilities.
3. The execution, delivery and performance by the Purchaser of the Asset
Purchase Agreement and each of the Operative Agreements to which it is a party
and the assumption and performance of the Assumed Liabilities have been duly
authorized by all necessary limited liability company action on the part of the
Purchaser.
4. The Purchaser has duly executed and delivered the Asset Purchase
Agreement and each of the Operative Agreements to which the Purchaser is a party
and each such document constitutes the legal, valid, and binding obligation of
the Purchaser, enforceable against the Purchaser, in accordance with its
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles (regardless of
whether such enforceability is considered in a proceeding at equity or law).
5. The execution and delivery by the Purchaser of the Asset Purchase
Agreement and each of the Operative Agreements to which it is a party do not,
and the consummation of the transactions contemplated thereby (including the
performance of the Assumed Liabilities) will not, (i) violate or conflict with
the provisions of the Certificate of Formation or Operating Agreement of the
Purchaser, each as amended and in effect as of the date hereof, (ii) except as
contemplated by the Asset Purchase Agreement and the Operative Agreements to
which it is a party, result in the imposition of any Encumbrance under, cause
the acceleration of any obligation under, or violate the terms, conditions or
provisions of any material Contract to which the Purchaser is a party or is
bound, or (iii) to our knowledge, result in a violation by the Purchaser of any
federal or New York statute, rule or regulation, which in our experience would
normally apply to transactions of the type contemplated by the Asset Purchase
Agreement or the Operative Agreements to which the Purchaser is a party. No
opinion is expressed in this paragraph 5 as to the application of Sections 547
and 548 of the federal Bankruptcy Code and comparable provisions of state law or
of any applicable fiduciary duty or antifraud, antitrust or trade regulation
laws, including, without limitation, the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
