EXHIBIT 10.9
Draft 3/13/98
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is entered into on March 16, 1998, but is
effective February 23, 1998, among Xxxxxxxx Broadcast Holdings, Inc., a Delaware
corporation ("Xxxxxxxx"), Xxxxxxxx Broadcasting Company II, Inc., a Delaware
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corporation ("Xxxxxxxx Two"), Xxxxxxxx Broadcasting Company III, Inc., a
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Delaware corporation ("Xxxxxxxx Three" and, together with Xxxxxxxx and Xxxxxxxx
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Two, the "Xxxxxxxx Companies"), Xxxxxxxx Broadcast Group, Inc., a Maryland
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corporation ("Xxxxxxxx"), on behalf of itself and two subsidiaries to be formed
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by it as described in the recitals below, Glencairn, Ltd., a Maryland
corporation ("Glencairn"), on behalf of itself and a subsidiary to be formed by
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it as described in the recitals below, and ABRY Partners, Inc., a Delaware
corporation ("ABRY Partners"), in its various capacities as the Stockholder
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Representative pursuant to the Merger Agreements described below.
As of February 23, 1998, the parties to this Agreement (the "Parties")
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entered into an Agreement and Plan of Merger (the "Prior Agreement"). On
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March 16, 1998, but effective as of February 23, 1998, the Parties are entering
into this Agreement and the following agreements which, together, restate the
agreements set forth in the Prior Agreement:
(a) the Agreement and Plan of Merger among Sullivan, Sinclair, on
behalf of itself and the Merger Sub referred to therein ("Merger Sub One"),
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and ABRY Partners, in its capacity as the Stockholder Representative
referred to therein (as in effect from time to time, the "Xxxxxxxx
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Agreement");
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(b) the Agreement and Plan of Merger among Xxxxxxxx Two, Xxxxxxxx,
on behalf of itself and the Merger Sub referred to therein ("Merger Sub
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Two" and, together with Merger Sub One, the "Xxxxxxxx Merger Subs"), and
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ABRY Partners, in its capacity as the Stockholder Representative referred
to therein (as in effect from time to time, the "Xxxxxxxx Two Agreement");
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and
(c) the Agreement and Plan of Merger among Xxxxxxxx Three,
Glencairn, on behalf of itself and the Merger Sub referred to therein
("Merger Sub Three" and, together with the Xxxxxxxx Merger Subs, the
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"Merger Subs"), and ABRY Partners, in its capacity as the Stockholder
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Representative referred to therein (as in effect from time to time, the
"Xxxxxxxx Three Agreement" and, together with the Xxxxxxxx Agreement and
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the Xxxxxxxx Two Agreement, the "Merger Agreements").
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As used in this Agreement, the following terms have the meanings
assigned to those terms in the applicable Merger Agreement(s):
Acquiring Parties Acquiring Party Consents
Closing Date Dispute
Merger Old Xxxxxxxx Stockholders
Stockholder Representative Subsidiary
Xxxxxxxx Consents Tax
Parties
In connection with their entry into the Merger Agreements, certain of
the parties have also entered into the Estimate Escrow Agreement and the
Indemnity Escrow Agreement, and pursuant to the Xxxxxxxx Agreement, Merger Sub
One may establish the Estimate Fund and/or the Indemnity Fund (each capitalized
term used in this sentence and not otherwise defined in this Agreement having
the meaning which the Xxxxxxxx Agreement assigns to that term).
Pursuant to and subject to the terms and conditions of the Xxxxxxxx
Agreement, Merger Sub One will merge with and into Xxxxxxxx, with Xxxxxxxx being
the surviving corporation (in such capacity, "Post-Merger Xxxxxxxx"). The date
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of the Closing pursuant to the Xxxxxxxx Agreement is referred to as the
"Xxxxxxxx Closing Date," and such merger is referred to as the "Xxxxxxxx
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Merger."
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Pursuant to and subject to the terms and conditions of the Xxxxxxxx
Two Agreement, Merger Sub Two will merge with and into Xxxxxxxx Two, with
Xxxxxxxx Two being the surviving corporation (in such capacity, "Post-Merger
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Xxxxxxxx Two"). The date of the Closing pursuant to the Xxxxxxxx Two Agreement
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is referred to as the "Xxxxxxxx Two Closing Date," and such merger is referred
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to as the "Xxxxxxxx Two Merger."
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Pursuant to and subject to the terms and conditions of the Xxxxxxxx
Three Agreement, Merger Sub Three will merge with and into Xxxxxxxx Three, with
Xxxxxxxx Three being the surviving corporation (in such capacity, "Post-Merger
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Xxxxxxxx Three" and, together with Post-Merger Xxxxxxxx and Post-Merger Xxxxxxxx
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Two, the "Post-Merger Corporations"). The date of the Closing pursuant to the
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Xxxxxxxx Three Agreement is referred to as the "Xxxxxxxx Three Closing Date,"
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and such merger is referred to as the "Xxxxxxxx Three Merger." The Xxxxxxxx
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Merger, the Xxxxxxxx Two Merger and the Xxxxxxxx Three Merger are referred to as
the "Mergers".
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NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows, effective as of the date of the Prior Agreement:
1. Survival Period. The representations, warranties and
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certifications of the Parties contained in or made pursuant to the Merger
Agreements (including any certification contained in any certificate to be
delivered pursuant to Section 3.I of the Xxxxxxxx Agreement or
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Section 3.C of either the Xxxxxxxx Two Agreement or the Xxxxxxx Three Agreement
(collectively, the "Closing Certificates")) will survive the execution of the
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Merger Agreements and the Xxxxxxxx Merger for 150 days after the Xxxxxxxx
Closing Date (such 150-day period being the "Survival Period"); provided that,
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in any event, (x) for purposes of Sections 9.A(1) and 10.A(1) of the Xxxxxxxx
Two Merger Agreement only, the representations and warranties of Xxxxxxxx Two,
Xxxxxxxx and Merger Sub Two set forth in the Xxxxxxxx Two Agreement will survive
at least until the Xxxxxxxx Two Closing Date, and (y) for purposes of
Sections 9.A(1) and 10.A(1) of the Xxxxxxxx Three Agreement only, the
representations and warranties of Xxxxxxxx Three, Glencairn and Merger Sub Three
set forth in the Xxxxxxxx Three Agreement will survive at least until the
Xxxxxxxx Three Merger Closing.
2. Notice to Preserve Claim. No remedy may be sought or obtained in
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respect of any representation, warranty or certification made in or pursuant to
any Merger Agreement (including in any Closing Certificate) unless notice of any
related Dispute is given to the Stockholder Representative (in the case of a
representation, warranty or certification of a Xxxxxxxx Company), or Xxxxxxxx
(in the case of a representation, warranty or certification of Xxxxxxxx or a
Xxxxxxxx Merger Sub), or Glencairn (in the case of a representation, warranty or
certification of Glencairn or Merger Sub Three), on or prior to the last day of
the Survival Period.
3. Indemnification on behalf of the Old Xxxxxxxx Stockholders.
--------------- -- ------ -- --- --- -------- ------------
After the Xxxxxxxx Closing Date, the Old Xxxxxxxx Stockholders (solely by
recourse to the Estimate Fund and the Indemnity Fund) will indemnify and hold
harmless the Acquiring Parties in respect of any and all damages, claims,
losses, expenses, costs, obligations, and liabilities including, without
limiting the generality of the foregoing, liabilities for reasonable attorneys'
fees and expenses (collectively, "Loss and Expense") suffered directly or
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indirectly by such Acquiring Party by reason of or arising out of
(a) any breach of representation or warranty of a Xxxxxxxx
Company set forth in Article IV of any Merger Agreement or any
certification made in any Closing Certificate delivered by any Xxxxxxxx
Company,
(b) any litigation, proceeding, or claim by any third party
arising from the business or operations of any Station prior to the
Adjustment Time (as that term is defined in the Xxxxxxxx Agreement), or
(c) the failure of any Xxxxxxxx Consent to be obtained or in
effect on the Closing Date for which such Xxxxxxxx Consent is required to
be obtained,
except, in each case, to the extent that such Loss and Expense constitutes a
liability which is reflected in the computation of the Adjustment Amount (as
that term is defined in the Xxxxxxxx Agreement); provided that:
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(1) no Acquiring Party will be entitled to any remedy pursuant
to this Section 3 by reason of any matter described in clause (a) above
(other than any Loss and Expense resulting from actual fraud by a Xxxxxxxx
Company, which will not be subject to any limitation set forth in this
clause (1)) unless and until the aggregate amount of the Loss and Expense
incurred by the Acquiring Parties in respect of all such matters exceeds
$1,000,000, and the Acquiring Parties, taken together, will be entitled to
remedies pursuant to this Section 3 in respect of such matters only to the
extent that the aggregate amount of all such Loss and Expense exceeds such
amount,
(2) no Acquiring Party will be entitled to a remedy pursuant to
this Section 3 in respect of any matter unless notice of any related
Dispute is given to the Stockholder Representative on or prior to the last
day of the Survival Period,
(3) no Acquiring Party will be entitled to any remedy pursuant
to this Section 3 in respect of any Tax liability (other than the Xxxxxxxx
Three Spin-Off Tax Liability (as that term in defined in the Xxxxxxxx
Agreement), determined in accordance with Section 3.D(6) of the Xxxxxxxx
Agreement),
(4) it is agreed that the amount of the Loss and Expense
incurred by Post-Merger Xxxxxxxx by reason of the failure of Schedule 4J to
the Xxxxxxxx Agreement to identify any Program Contract (as that term is
defined in the Xxxxxxxx Agreement) which was in effect both on February 23,
1998 and on the Xxxxxxxx Closing Date and which was required to be
identified on such Schedule 4J will be an amount equal to the present value
of all cash payments to be made thereunder after the Xxxxxxxx Closing Date,
determined using a 10% compound annual discount rate, and
(5) no Acquiring Party will entitled to any remedy pursuant to
this Section 3 from any source other than the funds (if any) deposited in
the Estimate Fund and the Indemnity Fund.
4. Indemnification by Xxxxxxxx, Post-Merger Xxxxxxxx and Post,
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Merger Sub Two Merger Xxxxxxxx Two. After the Xxxxxxxx Closing Date, each of
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Xxxxxxxx, Post-Merger Xxxxxxxx and Post- Merger Xxxxxxxx Two will indemnify and
hold harmless the Old Xxxxxxxx Stockholders and the Stockholder Representative
from and against any and all Loss and Expense suffered directly or indirectly by
such Person by reason of or arising out of
(a) any breach of representation or warranty of Xxxxxxxx or
either Xxxxxxxx Merger Sub set forth in Article V of the Xxxxxxxx Agreement
or the Xxxxxxxx Two Agreement or any certification made in any Closing
Certificate delivered by Xxxxxxxx or either Xxxxxxxx Merger Sub,
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(b) any failure by Xxxxxxxx, either Xxxxxxxx Merger Sub, Post-
Merger Xxxxxxxx or Post-Merger Xxxxxxxx Two to perform or fulfill any of
its covenants or agreements set forth in the Xxxxxxxx Agreement or the
Xxxxxxxx Two Agreement,
(c) any failure by Post-Merger Xxxxxxxx or any of its
Subsidiaries to pay, perform, or discharge any of its liabilities or
obligations on or after the Xxxxxxxx Closing Date;
(d) any failure by Post-Merger Xxxxxxxx Two or any of its
Subsidiaries to pay, perform, or discharge any of its liabilities or
obligations on or after the Xxxxxxxx Two Closing Date;
(e) any litigation, proceeding, or claim by any third party
arising from the business or operations of any Station after the Adjustment
Time (as that term is defined in the Xxxxxxxx Agreement), or
(f) the failure of any Acquiring Party Consent to be obtained
or in effect on the Closing Date for which such Acquiring Party Consent is
required to be obtained;
provided that:
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(1) no such Person will be entitled to any remedy pursuant to
this Section 4 by reason of any matter described in clause (a) above (other
than any Loss and Expense resulting from actual fraud by an Acquiring
Party, which will not be subject to any limitation set forth in this clause
(1)) unless and until the aggregate amount of the Loss and Expense incurred
by such Persons in respect of all such matters, together with the aggregate
amount of the Loss and Expense incurred by such Persons in respect of
matters described in clause (a) of Section 5, exceeds $1,000,000, and all
such Persons taken together will be entitled to remedies pursuant to this
Section 4 and Section 5 in respect of all such matters only to the extent
that the aggregate amount of all such Loss and Expense exceeds such amount,
and
(2) no such Person will be entitled to a remedy pursuant to
this Section 4 in respect of any matter unless notice of any related
Dispute is given to Xxxxxxxx on or prior to the last day of the Survival
Period.
All amounts payable to any Old Xxxxxxxx Stockholder pursuant to this Section 4
will be paid to the Stockholder Representative, for the account of such Old
Xxxxxxxx Stockholder.
5. Indemnification by Glencairn and Post-Merger Xxxxxxxx Three.
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After the Xxxxxxxx Closing Date, each of Glencairn, Merger Sub Three and Post-
Merger Xxxxxxxx Three will indemnify and hold harmless the Old Xxxxxxxx
Stockholders and the Stockholder
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Representative from and against any and all Loss and Expense suffered directly
or indirectly by such Person by reason of or arising out of
(a) any breach of representation or warranty of Glencairn or
Merger Sub Three set forth in Article VI of the Xxxxxxxx Three Agreement or
any certification made in any Closing Certificate delivered by Glencairn or
Merger Sub Three,
(b) any failure by Glencairn, Merger Sub Three or Post-Merger
Xxxxxxxx Three to perform or fulfill any of its covenants or agreements set
forth in the Xxxxxxxx Three Agreement,
(c) any failure by Glencairn or Post-Merger Xxxxxxxx Three to
pay, perform, or discharge any of its liabilities or obligations after the
Xxxxxxxx Three Closing,
(d) any litigation, proceeding, or claim by any third party
arising from the business or operations of any Station (as that term is
defined in the Xxxxxxxx Three Agreement) after the Adjustment Time (as that
term is defined in the Xxxxxxxx Agreement), or
(e) the failure of any Acquiring Party Consent to be obtained
or in effect on the Closing Date for which such Acquiring Party Consent is
required to be obtained;
provided that:
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(1) no such Person will be entitled to any remedy pursuant to
this Section 5 by reason of any matter described in clause (a) above (other
than any Loss and Expense resulting from actual fraud by an Acquiring
Party, which will not be subject to any limitation set forth in this clause
(1)) unless and until the aggregate amount of the Loss and Expense incurred
by such Persons in respect of all such matters, together with the aggregate
amount of the Loss and Expense incurred by such Persons in respect of
matters described in clause (a) of Section 4, exceeds $1,000,000, and all
such Persons taken together will be entitled to remedies pursuant to
Section 4 and this Section 5 in respect of all such matters only to the
extent that the aggregate amount of all such Loss and Expense exceeds such
amount, and
(2) no such Person will be entitled to a remedy pursuant to
this Section 5 in respect of any matter unless notice of any related
Dispute is given to Glencairn on or prior to the last day of the Survival
Period.
All amounts payable to any Old Xxxxxxxx Stockholder pursuant to this Section 5
will be paid to the Stockholder Representative, for the account of such Old
Xxxxxxxx Stockholder.
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6. Limitation of Liability. No Party or Old Xxxxxxxx Stockholder
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will be entitled to obtain indemnification or reimbursement, or otherwise
exercise or obtain any remedy, pursuant to Section 3, 4 or 5 by means of set-off
against any liability or obligation (whether arising pursuant to this Agreement,
a Merger Agreement or otherwise) owing to any Party, Post-Merger Corporation or
Old Xxxxxxxx Stockholder, as the case may be.
7. Notice of Claims. If any Person believes that it will suffer or
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has suffered, or will incur or has incurred, any Loss and Expense as to which a
remedy may be had by it pursuant to Section 3, 4 or 5, such Person shall notify
the Stockholder Representative (in the case of a claim pursuant to Section 3),
Xxxxxxxx (in the case of a claim pursuant to Section 4), or Glencairn (in the
case of a claim pursuant to Section 5) (in each case, the "Notice Recipient"),
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promptly in writing and, in any event, on or prior to the last day of the
Survival Period, describing such Loss and Expense, the amount thereof, if known,
and the method of computation of such Loss and Expense, all with reasonable
particularity and containing a reference to the provisions of this Agreement and
the applicable Merger Agreement(s) in respect of which such Loss and Expense has
occurred; provided that any such notice on behalf of any Old Xxxxxxxx
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Stockholder must be given on its behalf by the Stockholder Representative, who
will have the right to give any such notice on behalf of any of all of the Old
Xxxxxxxx Stockholders. If any action at law or suit in equity is instituted by a
third party with respect to which any Person (or the Stockholder Representative,
on behalf of any Old Xxxxxxxx Stockholder(s)) intends to claim any liability or
expense as Loss and Expense under this Agreement, then such Person shall
promptly notify the appropriate Notice Recipient of such action or suit.
8. Defense of Third Party Claims. Any indemnifying party (or the
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Stockholder Representative, on behalf of any Old Xxxxxxxx Stockholder(s)) will
have the right to conduct and control through counsel of its own choosing any
related third party claim, action, or suit, but the indemnified party (or the
Stockholder Representative, on behalf of any Old Xxxxxxxx Stockholder(s)) may,
at its election, participate in the defense of any such claim, action, or suit
at its sole cost and expense; provided that, if the indemnifying party (or the
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Stockholder Representative, as the case may be) fails to defend any such claim,
action, or suit, then the indemnified party (or the Stockholder Representative,
as the case may be) may
(a) defend such claim, action or suit through counsel of its
own choosing such claim, action, or suit,
(b) so long as it gives the indemnifying party (or the
Stockholder Representative, as the case may be) at least fifteen (15) days
prior written notice of the terms of the proposed settlement thereof and
permits the indemnifying party (or the Stockholder Representative, as the
case may be) to then undertake the defense thereof, settle such claim,
action, or suit, and
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(c) recover from the indemnifying party (or from the Indemnity
Fund of the Escrow Fund, as the case may be) the amount of such settlement
or of any judgment and the costs and expenses of such defense.
The indemnifying party (or the Stockholder Representative, as the case may be)
will not compromise or settle any such third party claim, action, or suit unless
(1) as a result of such compromise or settlement, the indemnified party will be
released from all liability to such third party or (2) the indemnifying party
(or the Stockholder Representative, as the case may be) obtains the prior
written consent of the indemnified party (or the Stockholder Representative, if
one or more Old Xxxxxxxx Stockholders are to be indemnified) to such compromise
or settlement, which consent will not be unreasonably withheld or delayed.
9. Subrogation. To the extent that a Party (a "Paying Party"), on
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behalf of itself or any other Person, pays to or on behalf of an indemnified
party pursuant to Section 3, 4 or 5 any amount for which any other Person is
liable to that indemnified party (including any of such indemnified party's
insurers, subsidiaries, officers, directors, employees and other agents and
affiliates), whether by reason of a contractual, statutory or common law right
of indemnification or contribution or otherwise, the Paying Party will be
entitled to seek and recover that amount from such other Person, and such
indemnified party (or the Stockholder Representative, in the case of any Old
Xxxxxxxx Stockholder) will (and will cause all Persons under its control to)
take all actions which the Paying Party reasonably requests to enable the Paying
Party to seek and recover such amount from the Person which is or may be so
liable. Any amount paid to Xxxxxxxx, Glencairn or a Post-Merger Corporation
from the Indemnity Fund or the Escrow Fund will be deemed to have been paid by
the Stockholder Representative, on behalf of the Old Xxxxxxxx Stockholders in
question, for purposes of this Section 9.
10. General.
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(a) Termination. This Agreement will terminate without any
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action by any Party upon any termination of the Xxxxxxxx Agreement pursuant
to Section 12.A thereof.
(b) Notices. All notices, demands, and other communications
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which may or are required to be given under or with respect to this
Agreement will be in writing, will be delivered personally or sent by
nationally recognized overnight delivery service, charges prepaid, or by
registered or certified mail, return-receipt requested, and will be deemed
to have been given or made when personally delivered, or on the next
Business Day after delivery to such overnight delivery service, or on the
fifth day after it is deposited in the mail, registered or certified, first
class postage prepaid, as the case may be, if addressed as follows:
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(1) If to Xxxxxxxx (prior to the Xxxxxxxx Closing Date),
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Xxxxxxxx Two (prior to the Xxxxxxxx Two Closing Date), Xxxxxxxx Three
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(prior to the Xxxxxxxx Three Closing Date) or the Stockholder
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Representative (at any time):
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c/o ABRY Partners, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, President
with a copy (which will not constitute notice to any Xxxxxxxx
Company or the Stockholder Representative) to:
Xxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxx
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address and/or with such other copies as the Person
to whom such notice is to be given may from time to time designate by
notice to the Acquiring Parties given in accordance with this
Section 10(b).
(2) If to Xxxxxxxx, either Xxxxxxxx Merger Sub, Post-Merger
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Xxxxxxxx or Post-Merger Xxxxxxxx Two:
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Xxxxxxxx Broadcast Group, Inc.
0000 X. 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, President
with a copy (which will not constitute notice to Xxxxxxxx, either
Xxxxxxxx Merger Sub, Post-Merger Xxxxxxxx or Post-Merger Xxxxxxxx
Two) to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxxx, P.A.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
and
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Xxxxxxxx Communications, Inc.
0000 X. 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
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Attn: General Counsel
and
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Xxxxxx Xxxxxx, Esq.
Xxxxxx, Xxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
or to such other address and/or with such other copies as the Person
to whom such notice is to be given may from time to time designate by
notice to Xxxxxxxx (if prior to the Xxxxxxxx Closing Date), Xxxxxxxx
Two (if prior to the Xxxxxxxx Two Closing Date), Xxxxxxxx Three (if
prior to the Xxxxxxxx Three Closing Date) and the Stockholder
Representative given in accordance with this Section 10(b).
(3) If to Glencairn, Merger Sub Three or Post-Merger Xxxxxxxx
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Three:
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Gleincairn, Ltd.
0000 Xxxxxxx Xxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Xx.
with a copy (which will not constitute notice to Glencairn,
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Merger Sub Three or Post-Merger Xxxxxxxx Three) to:
--------------------------------------------------
Xxxxxx Xxxxxx, Esq.
Xxxxxx, Xxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
or to such other address and/or with such other copies as the Person
to whom such notice is to be given may from time to time designate by
notice to Xxxxxxxx (if prior to the Xxxxxxxx Closing Date), Xxxxxxxx
Two (if prior to the Xxxxxxxx Two Closing Date), Xxxxxxxx Three (if
prior to the Xxxxxxxx Three Closing Date) and the Stockholder
Representative given in accordance with this Section 10(b).
(c) Captions. The captions of Articles and Sections of this
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Agreement are for convenience only, and will not control or affect the
meaning or construction of any of the provisions of this Agreement.
(d) Law Governing. THIS AGREEMENT WILL BE GOVERNED BY,
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CONSTRUED, AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
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STATE OF NEW YORK, WITHOUT REFERENCES TO THE PRINCIPLES OF CONFLICT OF LAWS
OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE FEDERAL LAW OF THE
UNITED STATES GOVERNS THE TRANSACTIONS CONTEMPLATED HEREBY.
(e) Waiver of Provisions. The terms, covenants,
--------------------
representations, warranties, and conditions of this Agreement may be waived
as to any Party only by a written instrument executed by such Party. The
terms, covenants, representations, warranties, and conditions of this
Agreement may be waived as to the Old Xxxxxxxx Stockholders of any Xxxxxxxx
Company only by a written instrument executed by such Xxxxxxxx Company
(prior to the Merger to which it is a party) or the appropriate Stockholder
Representative (after such Merger). The failure of any Party or any Old
Xxxxxxxx Stockholder at any time or times to require performance of any
provision of this Agreement will in no manner affect the right at a later
date to enforce the same. No waiver by or on behalf of any Party or any Old
Xxxxxxxx Stockholder of any condition or the breach of any provision, term,
covenant, representation, or warranty contained in this Agreement, whether
by conduct or otherwise, in any one or more instances, will be deemed to be
or construed as a further or continuing waiver of any such condition or of
the breach of any other provision, term, covenant, representation, or
warranty of this Agreement.
(f) Counterparts. This Agreement may be executed in two (2) or
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more counterparts, and all counterparts so executed will constitute one (1)
agreement binding on all of the parties hereto, notwithstanding that all
the parties hereto are not signatory to the same counterpart.
(g) Entire Agreement. This Agreement and the other agreements
----------------
referred to herein constitute the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersede any and all prior
agreements, understandings, negotiations, and discussions, whether oral or
written, between them relating to the subject matter hereof.
(h) Interpretation. Words used in this Agreement, regardless
--------------
of the gender and number specifically used, will be deemed and construed to
include any other gender, masculine, feminine or neuter, and any other
number, singular or plural, as the context requires. Whether or not used in
conjunction with the words "without limitation" or words of similar import,
the term "including" as used in this Agreement imports that the items
referred to are illustrative only and do not purport to be a complete
listing of the items of the type in question. The wording of the provisions
of this Agreement is the result of arms-length negotiations among the
parties to this Agreement and was selected by them to reflect their mutual
intentions; therefore, no Party will be deemed the "drafter" of this
Agreement and no rule of strict construction will be applied against or in
favor of any Party.
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IN WITNESS WHEREOF, the parties have caused this Indemnity Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
XXXXXXXX BROADCAST HOLDINGS, INC.
By:__________________________________________
Its:_________________________________________
XXXXXXXX BROADCASTING COMPANY II, INC.
By:__________________________________________
Its:_________________________________________
XXXXXXXX BROADCASTING COMPANY III, INC.
By:__________________________________________
Its:_________________________________________
XXXXXXXX BROADCAST GROUP, INC.,
in its own right and on behalf of two
Subsidiaries to be formed by it
By:__________________________________________
Its:_________________________________________
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GLENCAIRN, LTD.,
in its own right and on behalf of a Subsidiary
to be formed by it
By:__________________________________________
Its:_________________________________________
ABRY PARTNERS, INC.
By:__________________________________________
Its:_________________________________________
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