AN OPINION FROM VALUATION RESEARCH
CORPORATION OR ANOTHER NATIONALLY RECOGNIZED FIRM REASONABLY SATISFACTORY TO THE
COMPANY, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, AS TO THE
SOLVENCY OF THE COMPANY AFTER GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT (INCLUDING ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY AND INCLUDING THE CLOSING OF THE TRANSACTIONS CONTEMPLATED
BY THE TRIBUNE PURCHASE AGREEMENT AND THE ESOP PURCHASE AGREEMENT).
SECTION 6.3
CONDITIONS TO OBLIGATIONS OF THE ESOP AND MERGER SUB TO
EFFECT THE MERGER. THE OBLIGATIONS OF THE ESOP AND MERGER SUB TO EFFECT THE
MERGER IS FURTHER SUBJECT TO THE FULFILLMENT OF THE FOLLOWING CONDITIONS
(PROVIDED, HOWEVER, THAT NEITHER THE ESOP NOR MERGER SUB SHALL BE PERMITTED TO
WAIVE ANY CONDITION HEREUNDER WITHOUT THE EXPRESS WRITTEN CONSENT OF TRIBUNE
ACQUISITION):
(A)
(I)
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SET FORTH
IN SECTION 3.2(A) AND (D) SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS,
(II) THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SET FORTH IN
SECTIONS 3.10(A)(II) AND (B) SHALL BE TRUE AND CORRECT IN ALL RESPECTS AND (III)
THE OTHER REPRESENTATIONS AND WARRANTIES OF THE COMPANY SET FORTH HEREIN SHALL
BE TRUE AND CORRECT BOTH WHEN MADE AND AT AND AS OF THE CLOSING DATE, AS IF MADE
AT AND AS OF SUCH TIME (EXCEPT TO THE EXTENT EXPRESSLY MADE AS OF AN EARLIER
DATE, IN WHICH CASE AS OF SUCH DATE), EXCEPT WHERE THE FAILURE OF SUCH
REPRESENTATIONS AND WARRANTIES TO BE SO TRUE AND CORRECT (WITHOUT GIVING EFFECT
TO ANY LIMITATION AS TO "MATERIALITY" OR "MATERIAL ADVERSE EFFECT" QUALIFIERS
SET FORTH THEREIN) WOULD NOT HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A COMPANY
MATERIAL ADVERSE EFFECT.
(B)
THE COMPANY SHALL HAVE IN ALL MATERIAL RESPECTS PERFORMED ALL
OBLIGATIONS AND COMPLIED WITH ALL COVENANTS REQUIRED BY THIS AGREEMENT TO BE
PERFORMED OR COMPLIED WITH BY IT PRIOR TO THE EFFECTIVE TIME.
(C)
THE COMPANY SHALL HAVE DELIVERED TO THE ESOP A CERTIFICATE, DATED
THE EFFECTIVE TIME AND SIGNED BY ITS CHIEF EXECUTIVE OFFICER OR ANOTHER SENIOR
OFFICER, CERTIFYING TO THE EFFECT THAT THE CONDITIONS SET FORTH IN SECTIONS
6.3(A) AND (B) HAVE BEEN SATISFIED.
48
SECTION 6.4
FRUSTRATION OF CLOSING CONDITIONS. NEITHER THE COMPANY
NOR THE ESOP MAY RELY, EITHER AS A BASIS FOR NOT CONSUMMATING THE MERGER OR
TERMINATING THIS AGREEMENT AND ABANDONING THE MERGER, ON THE FAILURE OF ANY
CONDITION SET FORTH IN SECTIONS 6.1, 6.2 OR 6.3, AS THE CASE MAY BE, TO BE
SATISFIED IF SUCH FAILURE WAS CAUSED BY SUCH PARTY'S BREACH OF ANY PROVISION OF
THIS AGREEMENT OR FAILURE TO USE ITS REASONABLE BEST EFFORTS TO CONSUMMATE THE
MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED HEREBY, AS REQUIRED BY AND
SUBJECT TO SECTION 5.6.
ARTICLE VII
TERMINATION
SECTION 7.1
TERMINATION OR ABANDONMENT. NOTWITHSTANDING ANYTHING
CONTAINED IN THIS AGREEMENT TO THE CONTRARY, THIS AGREEMENT MAY BE TERMINATED
AND ABANDONED AT ANY TIME PRIOR TO THE EFFECTIVE TIME, AS FOLLOWS:
(A)
BY THE MUTUAL WRITTEN CONSENT OF THE COMPANY AND THE ESOP;