STOCK PURCHASE AGREEMENT
between
INFINITY BROADCASTING CORPORATION
and
XXXXXX HOLDINGS L.P.
Dated as of March 3, 1996
TABLE OF CONTENTS
PAGE
ARTICLE I: DEFINITIONS............................................ 1
ARTICLE II: PURCHASE AND SALE OF STOCK............................ 7
2.1 General.............................................. 7
2.2 Stock Purchase Price; Adjustments.................... 7
2.3 Payment of the Stock Purchase Price.................. 12
2.4 Delivery of the Stock................................ 12
2.5 Delivery by the Seller............................... 12
2.6 Delivery by the Buyer................................ 13
ARTICLE III: CLOSING.............................................. 14
ARTICLE IV: REPRESENTATIONS AND WARRANTIES........................ 14
4.1 Representations and Warranties of the Seller......... 14
4.2 Representations and Warranties of the Buyer.......... 37
4.3 Survival of Representations and Warranties........... 39
4.4 Limitation on Remedies........................... 39
4.5 Schedules............................................ 40
4.6 No Implied Representation............................ 40
ARTICLE V: COVENANTS AND TRANSACTIONS PRIOR TO CLOSING............ 40
5.1 Access to Information Concerning Properties and
Records; Confidentiality......................... 40
5.2 Conduct of the Businesses of the Companies and the
Subsidiaries Prior to the Closing Date........... 42
5.3 Antitrust Laws....................................... 44
5.4 Applications for FCC Consents........................ 45
5.5 Employee Benefit Matters......................... 47
5.6 Credit Agreement..................................... 50
5.7 Notification......................................... 50
5.8 No Inconsistent Action .............................. 51
5.9 Non-Solicitation..................................... 51
5.10 Financial Statements............................ 51
5.11 Repair of Assets.................................... 53
5.13 Commitments for Financing....................... 55
5.14 Further Actions..................................... 55
ARTICLE VI: CONDITIONS PRECEDENT.................................. 56
6.1 Conditions Precedent to Obligations of Parties....... 56
6.2 Conditions Precedent to Obligation of the Buyer...... 56
6.3 Conditions Precedent to the Obligation of the
Seller........................................... 58
ARTICLE VII: ASSUMPTION OF CERTAIN OBLIGATIONS
AND LIABILITIES; INDEMNIFICATION........... 59
7.1 Assumption and Indemnification....................... 59
7.2 Procedure............................................ 60
7.3 Payment.............................................. 62
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PAGE
ARTICLE VIII: MISCELLANEOUS....................................... 62
8.1 Termination and Abandonment.......................... 62
8.2 Fees and Expenses.................................... 64
8.3 No Control by the Buyer.............................. 64
8.4 Transfer Taxes....................................... 64
8.5 Notices.............................................. 64
8.6 Entire Agreement..................................... 65
8.7 Binding Effect; Benefit.............................. 66
8.8 Assignability........................................ 66
8.9 Amendment and Modification; Waiver................... 66
8.10 Public Announcements................................ 67
8.11 Knowledge....................................... 68
8.13 Section Headings.................................... 68
8.14 Counterparts........................................ 68
8.15 Applicable Law...................................... 68
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Schedules
Schedule 1.1 Stations
Schedule 1.2 Subisidiaries
Schedule 4.1(a) Jurisdiction of Organization - Companies
Schedule 4.1(c) Authorized Capital
Schedule 4.1(c)(i) Liens on Stock -Companies
Schedule 4.1(c)(ii) Outstanding Options, Warrants, Etc. - Companies
Schedule 4.1(e)(i) Liens on Stock - Subsidiaries
Schedule 4.1(e)(ii) Outstanding Options, Warrants, Etc.-Subsidiaries
Schedule 4.1(f) Conflicts; Consents
Schedule 4.1(h) Tax Matters
Schedule 4.1(i)(i) FCC Licenses
Schedule 4.1(i)(ii) Pending Applications with FCC
Schedule 4.1(i)(iii) Proceedings or Complaints at FCC
Schedule 4.1(j) Insurance Policies
Schedule 4.1(k)(i) Owned Real Property
Schedule 4.1(k)(ii) Leased Real Property
Schedule 4.1(k)(iii) Liens on Real Property
Schedule 4.1(k)(iv) Liens on Assets
Schedule 4.1(k)(v) Ownership Exceptions
Schedule 4.1(m) Legal Proceedings
Schedule 4.1(o) Undisclosed Liabilities
Schedule 4.1(p) Changes or Events
Schedule 4.1(q)(i) Employee Benefit Plans, Agreements
Schedule 4.1(q)(v) Contributions, Etc. Under Benefit Plans
Schedule 4.1(q)(ix) Increases in Compensation
Schedule 4.1(s) Affiliate Transactions
Schedule 4.1(t)(i) Material Contracts
Schedule 4.1(t)(ii) Material Contracts Not Valid or Binding
Schedule 4.1(t)(iii) Consents under Material Contracts
Schedule 4.1(u) Collective Bargaining Agreements
Schedule 4.2(d) Buyer's Qualifications as Licensee
Schedule 5.5 Cause
iii
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of March 3, 1996, between
Infinity Broadcasting Corporation, a Delaware corporation (the "BUYER"), and
Xxxxxx Holdings L.P., a Delaware limited
partnership (the "SELLER").
WHEREAS, the Seller is the owner, beneficially and of record,
of all of the outstanding capital stock (the "STOCK") of GCI Atlanta Holdings,
Inc., GCI Baltimore Holdings, Inc., GCI Texas Holdings, Inc., GCI Orlando
Holdings, Inc., GCI Dallas Holdings, Inc. and GCI Boston Holdings, Inc.
(individually, the "COMPANY" and collectively, the "COMPANIES") which,
respectively, are the direct and indirect parent corporations of the
Subsidiaries (as hereinafter defined). The Subsidiaries own and operate the
Stations (as hereinafter defined); and
WHEREAS, the Stock constitutes all of the outstanding
capital stock of the Companies; and
WHEREAS, the Buyer desires to purchase from the Seller, and
the Seller desires to sell to the Buyer, all of the Stock upon the terms and
subject to the conditions set forth herein (the sale and purchase of the Stock
being referred to herein as the "STOCK PURCHASE").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I: DEFINITIONS
As used in this Agreement, the following terms have the
following meanings:
1
"AFFILIATE" when used with respect to another Person shall mean any
Person controlling, controlled by or under common control with such Person.
"ANTITRUST DIVISION" means the Antitrust Division of the
U.S. Department of Justice.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which banks are required or authorized by law to be closed in New York,
New York.
"CLOSING" shall have the meaning ascribed to it in Article
III.
"CLOSING DATE" shall have the meaning ascribed to it in
Article III.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMUNICATIONS ACT" shall mean the Communications Act of
1934, as amended.
"COMPANY PLANS" shall have the meaning ascribed to it in
Section 4.1(q).
"CREDIT AGREEMENT" means the Credit Agreement, dated as of March 31,
1995, among Xxxxxx Finance Partnership, certain other Xxxxxx companies referred
to therein, each of the lenders signatory thereto and The Chase Manhattan Bank
(National
Association), as agent.
"DEFERRED INCOME TAXES" means deferred tax assets or liabilities
(current or long-term) recorded in accordance with generally accepted accounting
practices on a balance sheet; PROVIDED that the term Deferred Income Taxes shall
not include any deferred tax asset or liability which arises from the
2
application of purchase price accounting to the acquisitions
pursuant to the Summit Agreement.
"ENVIRONMENTAL LAWS" shall have the meaning ascribed to it
in Section 4.1(r).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"FCC" means the Federal Communications Commission.
"FCC CONSENT" shall have the meaning ascribed to it in
Section 6.1(b).
"FCC LICENSES" shall have the meaning ascribed to it in
Section 4.1(i).
"FCC RULES" means the rules, regulations and written policies of the
FCC promulgated by the FCC under the Communications Act.
"FINAL ORDER" means an order of the FCC if:
(a) the order of the FCC has not been reversed, stayed,
enjoined, set aside, annulled or suspended;
(b) no request for stay, petition for reconsideration, application for
review or appeal or SUA SPONTE action of the FCC with comparable effect is
pending with respect to the order; and
(c) the normally applicable time for filing any such request, petition
or appeal or for the taking of any such SUA SPONTE action has expired.
"FTC" means the U.S. Federal Trade Commission.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations thereunder.
3
"INTELLECTUAL PROPERTY" means patents, patent applications, trademarks,
tradenames, service marks, copyright registrations or copyright applications.
"LEASED REAL PROPERTY" means the land, buildings and structures leased
by any Company or any Subsidiary as lessee and listed in Schedule 4.1(k)(ii)
hereto under the name of such Company or Subsidiary, including any additions
thereto or substitutions therefor.
"LIEN" means any mortgage, pledge, security interest, option, adverse
claim, encumbrance, lien, claim or charge of any kind, whether voluntarily
incurred or arising by operation of law or otherwise.
"LONG-TERM LIABILITIES" means any long-term liabilities (other than
Deferred Income Taxes that are non-current liabilities) required to appear on a
balance sheet of the Companies and the Subsidiaries prepared in accordance with
generally accepted accounting practices.
"MATERIAL ADVERSE EFFECT" means any effect that is materially adverse
to the business, results of operations or financial condition of the Companies
and the Subsidiaries, taken as a whole.
"MATERIAL CONTRACTS" shall have the meaning ascribed to it
in Section 4.1(t).
"OWNED REAL PROPERTY" means the land, buildings and structures owned by
any Company or any Subsidiary and listed on Schedule 4.1(k)(i) under the name of
such Company or such
4
Subsidiary, including any additions thereto or substitutions therefore.
"PERMITTED LIENS" shall have the meaning ascribed to it in
Section 4.1(k).
"PERSON" means and includes any natural person, corporation, limited
liability company, partnership, limited partnership, firm, joint venture,
association, joint-stock company, trust, business trust, unincorporated
organization, governmental or regulatory body, or other entity of whatever
nature.
"STATIONS" means the radio stations listed on Schedule 1.1
hereto.
"STOCK PURCHASE" shall have the meaning ascribed to it in
the recitals.
"STOCK PURCHASE PRICE" shall have the meaning ascribed to it
in Section 2.2.
"SUBSIDIARY" means, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person; provided that the term "SUBSIDIARIES" when used with respect to
the Companies shall mean only those Persons listed on Schedule 1.2 hereto.
5
"SUMMIT AGREEMENT" means the Stock Purchase Agreement, dated as of June
14, 1994, among Summit Communications Group, Inc., Summit Broadcasting Holding
Company, and Xxxxxx Communications, Inc.
"WORKING CAPITAL" means (a) cash and cash equivalents, accounts
receivables and other receivables (less the reserve for uncollectible accounts),
prepaid expenses (excluding any prepaid advertising and promotion expenses and
including prepaid taxes other than income taxes), security deposits, any other
current assets that provide economic benefit to the Companies or the
Subsidiaries after the Closing and Deferred Income Taxes recorded as a current
asset LESS (b) accounts payable, accrued expenses and current liabilities, other
accruals, salaries and commissions payable (including an accrual for all sales
commissions referred to in Schedule 4.1(p) that have not been paid at or prior
to the Closing, whether or not required by generally accepted accounting
practices), the current portion of long-term debt and Deferred Income Taxes
recorded as a current liability, all as determined in accordance with generally
accepted accounting practices, consistently applied. For the purposes of the
definition of Working Capital, (i) net barter receivables shall not exceed
$50,000 and (ii) the Seller will maintain a reserve for accounts receivable
consistent with past practice but in no event shall such such reserve be less
than the lesser of 4.7% of such accounts and $679,000. All of the accounts
receivable on the Closing Date Balance Sheet will to the knowledge of the Seller
6
and the Company be good and collectible and free and clear of any
Liens.
ARTICLE II: PURCHASE AND SALE OF STOCK
2.1 GENERAL. Upon the terms and subject to the
conditions of this Agreement, on the Closing Date, the Seller agrees to sell to
the Buyer, and the Buyer agrees to purchase from the Seller, the Stock.
2.2 STOCK PURCHASE PRICE; ADJUSTMENTS. (a) The total
consideration for the sale and transfer of the Stock shall be (i) FOUR HUNDRED
TEN MILLION DOLLARS ($410,000,000) plus (ii) the amount of the Estimated Working
Capital (as defined below) plus (iii) the estimated aggregate amount of Deferred
Income Tax Assets (as defined below) minus (iv) the aggregate amount of Deferred
Income Tax Liabilities (as defined below) minus (v) the aggregate amount of the
Estimated Long-Term Liabilities (as defined below), if any, (collectively, the
"STOCK PURCHASE PRICE"), payable as set forth in Section 2.3 and subject to
adjustment as provided in Section 2.2(b).
(b) (i) The Seller shall, at least two Business Days prior to
the Closing, cause to be prepared and delivered to the Buyer a statement (the
"PRELIMINARY STATEMENT") setting forth the estimated calculations (which
calculations shall be reasonably satisfactory to the Buyer) of the Working
Capital of the Companies and the Subsidiaries (the "ESTIMATED WORKING CAPITAL"),
the amount of the Long-Term Liabilities (the "ESTIMATED LONG-TERM LIABILITIES"),
the amount of the Deferred Income Taxes recorded as a non-current asset (the
"DEFERRED INCOME TAX ASSET") and the
7
amount of the Deferred Income Taxes recorded as a non-current liability (the
"DEFERRED INCOME TAX LIABILITY"), each as of the close of business of the
Companies and the Subsidiaries on the Closing Date. Such calculations shall be
prepared on a basis consistent with the December 31, 1994 balance sheet of
Seller included in the Financial Statements (as defined in Section 4.1(g)) and
as specifically provided in this Agreement.
(ii) Within 90 calendar days after the Closing, the
Seller shall cause to be prepared and delivered to the Buyer (i) a balance sheet
of the Companies and the Subsidiaries (the "CLOSING DATE BALANCE SHEET"),
prepared in accordance with generally accepted accounting principles,
consistently applied and (ii) a statement (the "STATEMENT") setting forth the
Working Capital, the amount of the Long-Term Liabilities, the amount of the
non-current Deferred Income Tax Asset and the amount of the non-current Deferred
Income Tax Liability, each as of the close of business of the Companies and the
Subsidiaries on the Closing Date. At the same time, the Seller shall also cause
to be prepared and delivered to the Buyer a statement (the "ADJUSTMENT
STATEMENT") setting forth the calculation of the sum of (a) the Working Capital
as shown on the Statement minus the Estimated Working Capital as shown on the
Preliminary Statement, (b) the non-current Deferred Income Tax Asset as shown on
the Statement minus the estimated non-current Deferred Income Tax Asset, (c) the
Estimated Long-Term Liabilities minus the Long-Term Liabilities as shown on the
Statement, (d) the estimated non-current Deferred Income Tax Liability minus the
non-current
8
Deferred Income Tax Liability (such sum, which might be a negative number,
referred to hereinafter as the "ADJUSTMENT AMOUNT"). The Buyer shall provide the
Seller with access to the relevant books and records and employees of each of
the Companies to the extent required to prepare the Closing Date Balance Sheet,
the Statement and the Adjustment Statement.
(iii) After receipt of the Closing Date Balance Sheet,
the Statement and the Adjustment Statement, the Buyer will have 30 calendar days
to review the Closing Date Balance Sheet, the Statement and the Adjustment
Statement together with the workpapers used in their preparation. Unless the
Buyer delivers written notice to the Seller setting forth the specific items
disputed by the Buyer, on or prior to the thirtieth day after its receipt of the
Closing Date Balance Sheet, the Statement and the Adjustment Statement, the
Buyer will be deemed to have accepted and agreed to the Closing Date Balance
Sheet, the Statement and the Adjustment Statement and such agreement will be
final and binding. If the Buyer so notifies the Seller of its objections to any
of the Closing Date Balance Sheet, the Statement or the Adjustment Statement,
the Buyer and the Seller will, within 30 days following the notice (the
"RESOLUTION PERIOD"), attempt to resolve their differences. Any resolution by
the Buyer and the Seller during the Resolution Period as to any disputed amounts
will be final, binding and conclusive. If the Buyer and the Seller do not
resolve all disputed items by the end of the Resolution Period, then all items
remaining in dispute will be submitted within 30 days after the expiration of
the Resolution
9
Period to the New York office of Ernst & Young LLP or such other independent
accounting firm of national reputation mutually acceptable to the Buyer and the
Seller (the "NEUTRAL AUDITOR"). If the Buyer and the Seller are at any time
unable to agree on the Neutral Auditor, then the Buyer and the Seller will each
have the right to request the American Arbitration Association to appoint the
Neutral Auditor. All fees and expenses relating to the work, if any, to be
performed by the Neutral Auditor will be borne (i) by the Buyer in the same
proportion that the aggregate amount of all of the objections on the Closing
Date Balance Sheet, the Statement and the Adjustment Statement that are
submitted by the Buyer to the Neutral Auditor and are unsuccessfully disputed by
the Buyer, bear to the total amount of all of such objections and (ii) by the
Seller in the same proportion that the aggregate amount of all of the objections
on the Closing Date Balance Sheet, the Statement and the Adjustment Statement
that are submitted by the Buyer to the Neutral Auditor and are successfully
disputed by the Buyer, bear to the total amount of all of such objections. The
Buyer and the Seller shall reimburse the other to the extent the other pays more
than the amount so required pursuant to the preceding sentence. The Neutral
Auditor will deliver to the Buyer and the Seller a written determination (such
determination to include a work sheet setting forth all material calculations
used in arriving at such determination and to be based solely on information
provided to the Neutral Auditor by the Seller, the Companies and the Buyer) of
the disputed items within 30 days of receipt of the disputed
10
items, which determination will be final, binding and conclusive. The final,
binding and conclusive Closing Date Balance Sheet, Statement and Adjustment
Statement, which either are agreed upon by the Buyer and the Seller or are
delivered by the Neutral Auditor in accordance with this Section 2.2(b), will be
the "CONCLUSIVE BALANCE SHEET," the "CONCLUSIVE STATEMENT" and the "CONCLUSIVE
ADJUSTMENT STATEMENT," respectively.
(iv) If the Adjustment Amount as shown on the
Conclusive Adjustment Statement is a negative number, then the Stock Purchase
Price will be reduced by such amount, and the Seller shall pay to the Buyer an
amount in cash equal to the absolute value of such Adjustment Amount. If the
Adjustment Amount as shown on the Conclusive Adjustment Statement is a positive
number, then the Stock Purchase Price will be increased by such amount, and the
Buyer shall pay to the Seller an amount in cash equal to such Adjustment Amount.
All payments to be made pursuant to this Section 2.2(b)(iv) will be made on the
second Business Day following the date on which the Buyer and the Seller agree
to, or the Neutral Auditor delivers, the Conclusive Balance Sheet, the
Conclusive Statement and the Conclusive Adjustment Statement. Any payment
required to be made by the Seller or the Buyer pursuant to this Section
2.2(b)(iv) shall bear interest from the Closing Date through the date of payment
at a rate of interest equal to the prime rate per annum publicly announced from
time to time by Chase Manhattan Bank, N.A. at its principal office in New York
City, and shall be payable by wire transfer of immediately available funds to an
account or accounts designated
11
by the party entitled to receive such funds prior to the date when such payment
is due.
2.3 PAYMENT OF THE STOCK PURCHASE PRICE. On the terms and
subject to the conditions of this Agreement, payment of the Stock Purchase Price
shall be made at the Closing on the Closing Date by delivery to the Seller of
the Stock Purchase Price by wire transfer of immediately available funds to an
account or accounts designated by the Seller to the Buyer no less than two
Business Days prior to the Closing Date.
2.4 DELIVERY OF THE STOCK. On the terms and subject to the
conditions of this Agreement, the Seller shall, at the Closing on the Closing
Date, transfer, assign and deliver to the Buyer or its designee certificates
evidencing the Stock. Such certificates evidencing the Stock shall be duly
endorsed in blank, or be accompanied by stock transfer powers duly executed in
blank, with all necessary stock transfer tax stamps affixed thereto and
cancelled. The Seller shall sell the Stock to the Buyer free and clear of all
Liens, except for any encumbrances created by or on behalf of the Buyer or any
of its Affiliates.
2.5 DELIVERY BY THE SELLER. At the Closing on the
Closing Date, the Seller shall deliver or cause to be delivered
to the Buyer:
(a) The certificates, legal opinions and the release
referred to in Section 6.2(c), 6.2(d), 6.2(f) and 6.2(h);
(b) The written resignations of all officers and directors
requested by Buyer pursuant to Section 6.2(g).
12
(c) Copies of the resolutions of the general partners of the
Seller certified by an authorized person as being correct and complete
and then in full force and effect, authorizing the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby;
(d) The minute books, corporation seals and stock
transfer records of the Companies and the Subsidiaries; and
(e) If there is no Final Order with respect to the transfer of
the Stations, a Reversal Agreement (as defined in Section 6.1(c)),
executed on behalf of the Seller.
2.6 DELIVERY BY THE BUYER. At the Closing on the
Closing Date, the Buyer shall deliver or cause to be delivered to the Seller:
(a) The certificate and legal opinions referred to in
Section 6.3(c) and 6.3(d);
(b) Copies of the resolutions of the board of directors of the
Buyer certified by the secretary or assistant secretary thereof as
being correct and complete and then in full force and effect,
authorizing the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; and
(c) If there is no Final Order with respect to the transfer of
the Stations, a Reversal Agreement (as defined in Section 6.1(c)),
executed on behalf of the Buyer.
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ARTICLE III: CLOSING
Unless this Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Section
8.1 hereof, subject to the provisions of Article VI, the closing with respect to
the purchase and sale of the Stock (the "CLOSING") shall take place at the
offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or such other place, time and date as the parties may agree. The actual
time and date of the Closing are herein referred to as the "CLOSING DATE".
ARTICLE IV: REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The
Seller represents and warrants to the Buyer as follows:
(a) DUE ORGANIZATION OF THE SELLER AND THE COMPANIES. The
Seller is a limited partnership duly organized, validly existing and in good
standing under the laws of the State of Delaware. Each of the Companies is duly
organized, validly existing and in good standing under the laws of the state set
forth opposite its name on Schedule 4.1(a) hereto. Accurate and complete copies
of the certificates of incorporation, including all amendments thereto and
restatements thereof, and bylaws of each Company have been delivered to the
Buyer. Accurate and complete copies of the corporate minutes and the stock
record books of the Companies have been delivered to the Buyer. Complete and
accurate records with respect to the issuance, transfer, redemption and
cancellation of shares of capital stock
14
of the Companies are contained in the stock record books which have been
delivered to the Buyer.
(b) AUTHORIZATION AND VALIDITY OF AGREEMENT. The Seller has
all requisite power and authority to enter into this Agreement and to perform
its obligations hereunder. The execution, delivery and performance by the Seller
of this Agreement and the consummation by it of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the
Seller, and no other action on the part of the Seller is necessary for the
execution, delivery and performance by the Seller of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Seller and, assuming due authorization,
execution and delivery by the Buyer, is a legal, valid and binding obligation of
the Seller, enforceable against the Seller in accordance with its terms, except
to the extent limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting creditors' rights generally and by general
equity principles regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(c) CAPITALIZATION. The authorized, issued and outstanding
capital stock of each of the Companies and each of the Subsidiaries is as set
forth on Schedule 4.1(c) hereto. Each of the shares constituting the Stock is
duly authorized, validly issued, outstanding, fully paid and nonassessable and
owned by the Seller. The Stock constitutes all of the issued and
15
outstanding capital stock of the Companies. The Seller owns beneficially and of
record, the Stock, free and clear of any Liens, other than as set forth on
Schedule 4.1(c)(i) hereto. Except as set forth on Schedule 4.1(c)(ii) hereto,
there are no outstanding existing or authorized subscriptions, options,
warrants, calls, rights or any other agreements of any character obligating the
Seller or any of the Companies to issue or sell any shares of the capital stock
of the Companies or any securities convertible into such capital stock, and
there are no voting trusts or other agreements or understandings with respect to
the voting of the Stock.
(d) GOOD TITLE. Upon consummation of the Stock Purchase at the
Closing, as contemplated by this Agreement, the Seller will deliver to the Buyer
valid title to the Stock free and clear of any Liens, except for any
encumbrances created by or on behalf of the Buyer or any of its Affiliates.
(e) SUBSIDIARIES. (i) Each Subsidiary is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization and is duly qualified to do business as a foreign corporation and
is in good standing in the state in which the Stations which it owns are
located. Accurate and complete copies of the certificates of incorporation or
articles of incorporation, as the case may be, including all amendments thereto
and restatements thereof, and bylaws of each Subsidiary have been delivered to
the Buyer. Accurate and complete copies of the corporate minutes and the stock
record books of the Subsidiaries have been delivered to the Buyer.
16
Complete and accurate records with respect to the issuance, transfer, redemption
and cancellation of shares of capital stock of the Subsidiaries are contained in
the stock record books which have been delivered to the Buyer. Except as set
forth on Schedule 4.1(e)(i) hereto, all of the outstanding shares of capital
stock or other equity interests of each Subsidiary have been duly authorized,
validly issued and are fully paid and nonassessable and are owned by one or more
of the Companies or another Subsidiary free and clear of all Liens. Except as
indicated in Schedule 4.1(e)(ii) hereto, there are no outstanding, existing or
authorized subscriptions, options, warrants, calls, rights or any other
agreements of any character obligating the Seller, any of the Companies or any
of the Subsidiaries to issue or sell any shares of the capital stock of the
Subsidiaries or any securities convertible into such capital stock, and there
are no voting trusts or other agreements or understandings with respect to the
voting of the capital stock of the Subsidiaries.
(ii) Xxxxxx Finance Partnership, a New York general
partnership ("XXXXXX FINANCE"), the only general partners of which are the
Companies, has engaged in no activities or operations and has no assets or
liabilities except those related to entering into the Credit Agreement and the
transactions contemplated thereby. An accurate and complete copy of the
partnership agreement of Xxxxxx Finance has been delivered to the Buyer.
(f) NO CONFLICT; CONSENTS. Except as set forth on
Schedule 4.1(f) hereto and except for any consent, approval,
17
filing or notice that would not, if not given or made, or any violation,
conflict, breach, termination, default or acceleration which (in the case of
(i), (ii) or (iv)) does not have a material adverse effect on any of the
Companies, the execution, delivery and performance by the Seller of this
Agreement and the consummation by it of the transactions contemplated hereby
will not either alone or with the passage of time or both: (i) violate any
provision of any law, rule, regulation, order, judgment or decree applicable to
the Seller, any of the Companies or any of the Subsidiaries; (ii) require any
consent or approval of, or filing with or notice to, any governmental or
regulatory authority under any provision of any law applicable to the Seller,
any of the Companies or any of the Subsidiaries, except for any consent,
approval, filing or notice requirements which become applicable solely as a
result of the specific regulatory status of the Buyer or any of its Affiliates
or which the Buyer or any of its Affiliates are otherwise required to obtain;
(iii) violate the organizational documents of the Seller, any of the Companies
or any of the Subsidiaries; and (iv) require any consent, approval or notice
under, and will not conflict with, or result in the breach or termination of, or
constitute a default under, or result in the acceleration of the performance by
the Seller, any of the Companies or any of the Subsidiaries under, any Material
Contract, indenture, mortgage, deed of trust, lease, license, franchise,
contract, agreement or other instrument to which the Seller, any of the
Companies or any of the Subsidiaries
18
is a party or by which any of them, or any of their assets, are bound or
encumbered.
(g) FINANCIAL STATEMENTS. The Seller heretofore has delivered
to the Buyer (i) a copy of the audited consolidated balance sheets of the Seller
as at December 31, 1994, 1993 and 1992 and the unaudited consolidated balance
sheet as at September 30, 1995 (such balance sheets and any notes thereto being
referred to herein as the "SELLER BALANCE SHEETS"), the audited consolidated
income statements of the Seller for each year in the three-year period ended
December 31, 1994 and the unaudited consolidated income statement of the Seller
for the nine-month period ended September 30, 1995 (such income statements and
any notes thereto being referred to herein as the "SELLER INCOME STATEMENTS")
and the audited consolidated statement of cash flows for each of the three-years
ended December 31, 1994, 1993 and 1992 (the "SELLER CASH FLOW STATEMENTS") and
(ii) a copy of the unaudited balance sheets for the Companies as at December 31,
1994 and for the nine-month period ended September 30, 1995 (only if the Company
was owned by the Seller at such time) (such balance sheets and any notes thereto
being referred to herein as the "COMPANIES BALANCE SHEETS") and unaudited income
statements of the Companies for the year ended December 31, 1994 and September
30, 1995 (or for the period for which a Company was owned by the Seller, if
shorter) (collectively with any notes thereto and the Companies Balance Sheets,
the Seller Balance Sheets, the Seller Income Statements and the Seller Cash Flow
Statements, the "FINANCIAL STATEMENTS"). The Financial
19
Statements were prepared in accordance with generally accepted accounting
principles applied on a consistent basis, except as may be indicated in the
notes thereto. The Financial Statements accurately reflect the books, records
and accounts of the Seller and the Companies, as applicable, in all material
respects and present fairly in all material respects as of the dates and for the
periods stated therein the financial condition and results of operations of the
Seller or the Companies taken as a whole, as applicable, except that the
September 30, 1995 financial statements are subject to normal year-end
adjustments, none of which will be material and normal adjustments related to
the acquisitions under the Summit Agreement.
(h) TAX MATTERS. (a) With respect to the Companies and their
respective Subsidiaries, except as set forth in Schedule 4.1(h), (i) all Tax
Returns (as defined below) with respect to Taxes (as defined below) that are
required to be filed by or with respect to the Companies (or their respective
Subsidiaries) have been (and as of the Closing Date will have been), in all
material respects, accurately prepared and duly and properly filed, (ii) all
Taxes shown to be due on the Tax Returns referred to in clause (i) and all other
material Taxes payable by the Companies (or their respective Subsidiaries)
(whether or not requiring the filing of any Tax Return) have been (and as of the
Closing Date will have been) paid or adequately accrued for, (iii) none of the
Tax Returns referred to in clause (i) have been examined by the Internal Revenue
Service or the appropriate state, local or foreign taxing authority, (iv) all
material
20
deficiencies asserted or assessments made for Taxes against the Companies (or
their respective Subsidiaries) have been paid in full, (v) no issues have been
raised by any taxing authority in respect of Taxes that may be payable by the
Companies (or their respective Subsidiaries), (vi) no extensions or waivers of
statutes of limitation have been given or requested by or with respect to any
Taxes of the Companies (or their respective Subsidiaries), and (vii) there are
no pending audits relating to Taxes of the Companies (or their respective
Subsidiaries). The representations made herein in respect of any Subsidiary
refer only to periods during which any Company or Seller owned such Subsidiary.
With respect to any Subsidiary, the term Taxes shall include only Taxes arising
with respect to the operation of the Subsidiary after it was acquired by a
Company or the Seller and the term Tax Return shall refer to Tax Returns
required to filed in respect of such Taxes. The Seller further represents that
(x) GCI Atlanta Holdings, Inc., GCI Baltimore Holdings, Inc. and GCI Texas
Holdings, Inc. (collectively, the "INDEMNITEES"), are each entitled (and will
not as a result of the Stock Purchase, cease to be entitled on the same terms)
to the benefits of (i) the indemnity set forth in Sections 12.1(d) and 12.1(e)
of the Summit Agreement and recourse for breaches of the representations and
warranties set forth in Section 4.17 of the Summit Agreement and (ii) the Stock
Escrow Agreement and the Cash Escrow Agreement, each dated as of May 2, 1995, by
and among Time Warner Inc., Xxxxxx Communications, Inc., Summit Communications
Group, Inc. ("SUMMIT"), certain stockholders of Summit identified on the
21
signature page thereto, and United States Trust Company of New York and (y) to
the knowledge of Seller and the Companies, the payments under the indemnity and
escrow agreements described in clause (x) would be sufficient to discharge any
Taxes for which the Indemnitees and their respective Subsidiaries would be
liable relating to periods prior to the acquisition of such Indemnitees by the
Seller.
(b) No Tax is required to be withheld pursuant to
Section 1445 of the Code as a result of the transfers
contemplated by this Agreement.
(c) "Taxes" shall mean all federal, state, local, and foreign
taxes or similar duties or charges, including, without limitation, income,
employment, unemployment, withholding, social security, real property, personal
property, excise, sales, use and franchise taxes, levies, assessments, imports,
duties, licenses and registration fees and charges of any nature whatsoever,
including interest, penalties and additions with respect thereto any interest in
respect of such additions or penalties. "Tax Returns" shall mean all returns or
reports required to be filed by or with respect to the Companies (or their
respective Subsidiaries).
(i) FCC LICENSES. The Subsidiaries validly hold all licenses
and authorizations (collectively, the "FCC LICENSES") pursuant to Final Orders
(except as disclosed in Schedule 4.1(i)(ii)), as are necessary to operate the
Stations as they are currently operated. Schedule 4.1(i)(i) hereto lists all FCC
Licenses as are necessary to operate the Stations as they are
22
currently operated, having the expiration dates indicated therein, each of which
is in full force and effect. Each Station is being operated in all material
respects in accordance with the terms and conditions of the FCC Licenses
applicable to it and in accordance with the FCC Rules and the Communications
Act. Except as disclosed in Schedule 4.1(i)(iii), no proceedings are pending or,
to the knowledge of the Seller, any of the Companies or any of the Subsidiaries,
are threatened which may result in the revocation, modification, non-renewal or
suspension of any of the FCC Licenses, the issuance of any cease and desist
order or the imposition of any material fines, forfeitures or other
administrative actions by the FCC with respect to the Stations or their
operation, other than proceedings affecting the radio broadcasting industry in
general. There are not any unsatisfied or otherwise outstanding forfeiture
notices issued by the FCC with respect to any Station or its operation.
Except as disclosed on Schedule 4.1(i)(ii), the Seller does
not have any pending applications at the FCC relating to the FCC Licenses or the
Stations. None of the Seller, any Company or any Subsidiary is a party to any
proceeding or complaint at the FCC except as disclosed on Schedule 4.1(i)(iii).
To the best knowledge of the Seller, the Companies and the Subsidiaries, there
is no reason that the FCC Licenses will not be renewed in the ordinary course,
and there are no facts that, under the Communications Act or the FCC Rules,
would disqualify any of them as transferors of the FCC Licenses. All reports or
documents required since the acquisition of the Stations by the Seller, the
23
Companies and the Subsidiaries to be filed with the FCC with respect to the
Stations have been filed; all material items as are required to be placed in the
Stations' local public files have been placed in such files; and all information
contained in the foregoing documents is true, complete and correct in all
material respects.
(j) INSURANCE. The Seller has in effect with respect to the
Stations the policies of insurance listed on Schedule 4.1(j). Such policies are
in full force and effect and all premiums due have been paid in full.
(k) TITLE TO PROPERTY; LIENS AND ENCUMBRANCES. (i) Schedule
4.1(k)(i) lists all Owned Real Property having a value in excess of $100,000 and
used in the operation of the Stations and the Companies and the Subsidiaries
have good and marketable title to such Owned Real Property. Schedule 4.1(k)(ii)
lists all leases relating to Leased Real Property. Each of the Companies and the
Subsidiaries owns a valid and subsisting interest as lessee under the Leased
Real Property and except as set forth on Schedule 4.1(k)(iii) hereto, all such
Owned Real Property and Leased Real Property is free and clear of all Liens
except (i) statutory Liens arising or incurred in the ordinary course of
business with respect to which the underlying obligations are not delinquent or
the validity of which is being contested in good faith by appropriate
proceedings and for which adequate reserves for monies owed are reflected on the
Financial Statements in accordance with generally accepted accounting
principles, (ii) Liens for taxes not yet delinquent or the validity of which are
24
being contested in good faith by appropriate proceedings and for which adequate
reserves are reflected on the Financial Statements in accordance with generally
accepted accounting principles, (iii) Liens which constitute valid leases or
subleases from any of the Companies to third parties on Owned Real Property or
Leased Real Property that is not used in the operations of the Stations and (iv)
Liens and defects in title that are not material to the lessee (the types of
Liens identified in clauses (i) through (iv) above being herein referred to as
"PERMITTED LIENS").
(ii) All improvements on the Owned Real Property and Leased
Real Property are in compliance with applicable zoning and land use laws,
ordinances and regulations in all respects necessary to conduct the operation of
the Stations operating thereon as presently conducted, except for any instances
of non-compliance which do not and will not in the aggregate have a material
adverse effect on the owner or lessee of such Owned Real Property or Leased Real
Property, respectively. All such improvements are in good working condition and
repair, are insurable at standard rates, and comply in all material respects
with the FCC Rules and all other applicable federal, state and local statutes,
ordinances and regulations. All of the transmitting towers, ground radials, guy
anchors, transmitter buildings and related improvements located on the Owned
Real Property are located entirely in the Owned Real Property.
(iii) None of the Seller, any of the Companies or any
of the Subsidiaries has any knowledge of any pending, threatened
25
or contemplated action to take by eminent domain or otherwise to condemn any
part of the Owned Real Property or the Leased Real Property.
(iv) Except as specified on Schedule 4.1(k)(iv) and except for
Permitted Liens, each of the Companies and the Subsidiaries, as applicable, has
good title to the assets owned by it including, without limitation, all
leasehold interests applicable to the Stations, free and clear of all Liens. All
tangible personal property owned by any of the Companies or the Subsidiaries is
in a good state of repair and operating condition subject to normal repair,
maintenance and replacement. The technical equipment constituting a part of such
assets is in a good state of repair and operating condition (ordinary wear and
tear excepted) and comply in all material respects with all applicable FCC
Rules, the Communications Act and all other applicable laws, rules, regulations
and ordinances. Except as set forth on Schedule 4.1(k)(v), the Companies own,
directly or indirectly, all assets, properties, rights, franchises, claims and
agreements of every kind and description used to conduct the businesses and
operations of the Companies and the Subsidiaries as they are presently
conducted.
(l) PATENTS, TRADEMARKS, TRADENAMES, SERVICE MARKS AND
COPYRIGHTS. Other than the call letters relating to each of the
Stations, there is no material Intellectual Property owned,
licensed or used by or registered in the name of any of the
Companies or the Subsidiaries which apply to the Stations. To
the knowledge of the Seller and the Companies, each of the
26
Companies and the Subsidiaries owns, free and clear of all Liens, and without
infringement on the rights of others, all right and interest in, and right and
authority to use in connection with the conduct of the business of the
respective Stations as presently conducted, all Intellectual Property used in
such business and there are not outstanding or, to the knowledge of the Seller,
threatened judicial or adversary proceedings with respect thereto.
(m) LEGAL PROCEEDINGS. Except as described on Schedule 4.1(m)
hereto, there is no claim, legal action, decree, judgment, order, arbitration or
other proceeding, suit or governmental investigation pending, or to the
knowledge of the Seller, the Companies or the Subsidiaries, threatened, against
any Company or any Subsidiary which, individually or in the aggregate, is
expected to have a Material Adverse Effect or which, as of the date hereof,
seeks to enjoin or prohibit or otherwise question the validity of any action to
be taken by the Seller in connection with this Agreement.
(n) CONDUCT OF BUSINESS IN COMPLIANCE WITH REGULATORY
REQUIREMENTS. None of the Seller, the Companies or the Subsidiaries is in
violation of, or in default with respect to, any order, law, rule or regulation
of any federal, state, municipal or governmental department, commission, board,
bureau, agency or instrumentality which affects the Companies or the
Subsidiaries, except where the violation or default would not give rise,
individually or in the aggregate, to a Material
27
Adverse Effect or would not give any third party the right to enjoin the
transactions contemplated by this Agreement.
(o) ABSENCE OF UNDISCLOSED LIABILITIES. Except for liabilities
(a) reflected or reserved against in the Financial Statements or incurred in the
ordinary course of business since September 30, 1995, or (b) disclosed in
Schedule 4.1(o), the Companies and the Subsidiaries, taken as a whole, have no
material liabilities, commitments, indebtedness or obligations of any nature,
whether absolute, accrued, contingent or otherwise, and whether due or to become
due except for ordinary course contractual liabilities.
(p) ABSENCE OF CHANGES OR EVENTS. Except as disclosed in
Schedule 4.1(p), since September 30, 1995, the business of the Stations has been
conducted in all material respects only in the ordinary course and none of the
Seller, the Companies or the Subsidiaries have, except in the ordinary course of
business or except for transfers to any other Company or Subsidiary, purchased,
sold, assigned or transferred any of the assets of the Stations or made or
obligated itself in any way to make any increase in the compensation, incentive,
opportunity or benefits payable to any employee of the Stations, except for
regular periodic employee pay raises consistent with past practice. (q) EMPLOYEE
BENEFIT PLANS. (i) Schedule 4.1(q)(i) lists each "employee benefit plan" (within
the meaning of section 3(3) of ERISA), and each bonus, incentive or deferred
compensation, severance, termination, employment, retention, change of control,
stock option or other equity-based,
28
performance or other employee or retiree benefit or compensation plan, program,
arrangement, agreement, policy or understanding, that provides or may provide
benefits or compensation in respect of any employee or former employee of any of
the Companies or the Subsidiaries or the beneficiaries or dependents of any such
employee or former employee or under which any such employee or former employee
is or may become eligible to participate or derive a benefit and that is or has
been entered into, maintained or established by any of the Companies or the
Subsidiaries or any other trade or business, whether or not incorporated, which,
together with any of the Companies or the Subsidiaries, is treated as a single
employer under section 414 of the Code (such other trades and businesses
hereinafter referred to as the "Related Persons"), or to which any of the
Companies, the Subsidiaries or Related Persons contributes or is obligated or
required to contribute (collectively, the "Company Plans"). The Seller has
provided or made available to the Buyer true and complete copies of all written
Company Plans; to the extent such documents exist, will provide promptly all
trust agreements or other funding arrangements; the two most recent actuarial
and trust reports; the two most recent Forms 5500 and all schedules thereto; the
most recent IRS determination letter; current summary plan descriptions; and any
actuarial study of any post- employment life or medical benefits provided under
any such Company Plan.
(ii) Each Company Plan intended to be qualified under section
401(a) of the Code, and the trust (if any) forming a part
29
thereof, has received a favorable determination letter from the Internal Revenue
Service as to its qualification under the Code and to the effect that each such
trust is exempt from taxation under section 501(a) of the Code, and to the
knowledge of the Seller and the Companies, neither the Companies nor the
Subsidiaries have taken any action since the date of such determination letter
that could be reasonably likely to have a material adverse effect on such
qualification or tax-exempt status.
(iii) Each Company Plan has been operated and administered and
is in compliance with the terms of such Company Plan and all applicable laws,
rules and regulations, except in the case of any failures so to operate,
administer or comply that, individually or in the aggregate, would not
reasonably be expected to result in a material liability or obligation of any of
the Companies or the Subsidiaries.
(iv) No "reportable event" (as such term is used in section
4043 of ERISA), "prohibited transaction" (as such term is used in section 406 of
ERISA or section 4975 of the Code) or "accumulated funding deficiency" (as such
term is used in section 412 or 4971 of the Code) has heretofore occurred with
respect to any Company Plan, except where the liabilities arising out of any
such event, individually or in the aggregate, would not reasonably be expected
to result in a material liability or obligation of any of the Companies or the
Subsidiaries.
(v) Except as set forth on Schedule 4.1(q)(v), none of
the Companies nor any Subsidiaries has contributed to any
30
"multiemployer plan" (within the meaning of section 3(37) of ERISA) and none of
the Companies, the Subsidiaries nor any of the Related Persons has incurred any
withdrawal liability which remains unsatisfied.
(vi) The termination of, or withdrawal from, any Company Plan
or multiemployer plan to which any of the Companies or any Subsidiaries
contributes, on or prior to the Closing Date, will not subject any of the
Companies or any Subsidiaries to any material liability under Title IV of ERISA.
(vii) Neither the Seller, any of the Companies, any of the
Subsidiaries nor any of the Related Persons has incurred (either directly or
indirectly, including as a result of any indemnification obligation) any
material liability under or pursuant to Title IV of ERISA (other than
contributions to any Company Plan or premiums payable to the PBGC, in each case,
in the ordinary course of business) or the penalty, excise tax or joint and
several liability provisions of the Code relating to employee benefit plans and,
to the best knowledge of the Seller, no event, transaction or condition has
occurred or exists which could result in any such liability to any of the
Companies or the Subsidiaries or, following the Closing, the Buyer.
(viii) There are no pending or, to the best knowledge of the
Seller, threatened claims by or on behalf of any of the Company Plans, by any
current or former employee or otherwise involving any such Company Plan or the
assets of any Company Plan (other than routine claims for benefits) which, if
adversely determined, could result in a material liability.
31
(ix) Except as set forth on Schedule 4.1(q)(ix), the
consummation of the transactions contemplated by this Agreement will not cause
an increase in the amount of compensation or benefits or the acceleration of the
vesting or timing of payment of any compensation or benefits payable to or in
respect of any current or former employee of any of the Companies or the
Subsidiaries.
(r) ENVIRONMENTAL MATTERS. (i) Except as would not reasonably
be expected to result individually or in the aggregate in any material liability
under any Environmental Law, all operations and uses by the Company of the Owned
Real Property and the Leased Real Property are in compliance with all currently
applicable environmental statutes, ordinances, regulations and orders relating
to the protection of the environment (collectively, "ENVIRONMENTAL LAWS"). The
Companies and Subsidiaries have obtained all permits necessary under
Environmental Laws for the operation of the Stations, and all such permits are
in full force and effect and the Companies and the Subsidiaries are in
compliance with the terms and conditions of all such permits. There are no
outstanding Liens on the Seller's or the Companies' interest in any of the Owned
Real Property or, to the knowledge of the Sellers or the Companies, the Leased
Real Property under any Environmental Laws. None of the Seller, the Companies or
the Subsidiaries has received any notice of, or is otherwise aware of, any
administrative or judicial investigations, proceedings or actions with respect
to violations, alleged or proven, of any Environmental Laws by the
32
Seller, the Companies or the Subsidiaries or any tenants or subtenants of any of
the Seller or the Companies or the Subsidiaries, or otherwise involving such
Owned Real Property or such Leased Real Property or the operations conducted on
or in such Owned Real Property or such Leased Real Property.
(ii) To the knowledge of the Seller or the Companies, and
except as would not reasonably be expected to result individually or in the
aggregate in any material liability under any Environmental Law, the Owned Real
Property and the Leased Real Property is in compliance with all Environmental
Laws and there has been no release (nor, to the knowledge of any of the Seller
or the Companies, is there any substantial threat of a release) of any hazardous
substance at or from such Owned Real Property or such Leased Real Property in
amounts or concentrations requiring remediation under or that would violate
current Environmental Laws. To the knowledge of the Seller or the Companies,
there are no hazardous substances present on such Owned Real Property or Leased
Real Property except for ordinary quantities of properly stored hazardous
substances found in consumer or commercial products that are used in the normal
course of broadcast station operations, including grounds and building operation
and maintenance, or except as otherwise present in material compliance with
Environmental Laws or as would not reasonably be expected to result individually
or in the aggregate in any material liability under any Environmental Law. To
the knowledge of the Seller or the Companies, there are no underground storage
tanks, or underground piping associated with
33
such tanks, at such Owned Real Property or such Leased Real Property.
(s) AFFILIATE TRANSACTIONS. Except as disclosed in Schedule
4.1(s), none of the Seller, the Companies or the Subsidiaries and any of their
respective partners, stockholders, officers, directors or Affiliates possesses,
directly or indirectly, any financial interest in, or is a partner, directors,
officer or employee of, any partnership, corporation, firm, association or
business organization which is a client, supplier, customer, lessor, lessee or
competitor of any of the Stations or has a banking or other material contractual
relationship with any of the Stations.
(t) MATERIAL CONTRACTS. Except for (i) contracts or
commitments for the sale of advertising time (other than those referred to in
clause (ii)) entered into in the ordinary course of business involving not more
than $50,000 (except that with respect to GCI Atlanta Holdings, Inc. and its
Subsidiaries, such amount shall be not more than $100,000), (ii) trade or barter
agreements entered into after the date of this Agreement involving not more than
$25,000 per year, and (iii) contracts or commitments (other than those referred
to in clauses (i) and (ii)) involving not more than $25,000 per year
individually or in a series of related agreements, Schedule 4.1(t)(i) lists all
contracts, agreements, leases, and licenses, as to which any Company or any
Subsidiary is a party or by which any of them is bound, including, without
limitation, all collective bargaining agreements and employment agreements and
consulting agreements
34
providing for compensation in excess of $150,000 of salary per year. Such
contracts are collectively referred to herein as "MATERIAL CONTRACTS". The
Seller is not a party to any contracts, agreements, leases or licenses that
relate to the operations of the Stations except those agreements relating to the
compensation of managers that are not Transferred Employees (as hereinafter
defined). The Seller has delivered to the Buyer copies of all such Material
Contracts. Except as set forth on Schedule 4.1(t)(ii) hereto, each Material
Contract is valid and binding (except to the extent that the invalidity or
nonbinding nature of any Material Contract would not have a material adverse
effect on any Company) and is in full force and effect in accordance with its
terms and none of the Seller, any Company or any Subsidiary has granted any
material waivers or forebearances thereunder and none of the Seller, any Company
or any Subsidiary, or to the knowledge of the Seller or any Company of
Subsidiary, any third party, is in material default in the performance of any of
its obligations under any such Material Contract and no event or circumstance
has occurred which, with the giving of notice or the lapse of time or both,
would constitute a material default by the Seller, any Company or any Subsidiary
under any Material Contract. Except as indicated on Schedule 4.1(t)(iii), the
Stock may be sold without the consent of any party to any Material Contract and
such sale will not affect the validity or enforceability of any such Material
Contract or cause any material change in the substantive terms thereof.
35
(u) PERSONNEL INFORMATION. The Seller will provide the Buyer
within ten days of the date of this Agreement, a true and complete list setting
forth the names of the employees of each of the Stations and the amount of each
such employee's hourly compensation or yearly salary, as applicable, and such
list will be comparable, in all material respects, to the information previously
disclosed to the Buyer regarding such employees. Except as set forth on Schedule
4.1(u), none of the Seller, the Companies or the Subsidiaries is a party to any
contract or agreement with any labor organization, nor has any of the Seller,
any of the Companies or any of the Subsidiaries agreed to recognize any union or
other collective bargaining unit, nor has any union or other collective
bargaining unit been certified as representing any of the Seller's, any of the
Companies' or any of the Subsidiaries' employees at any of the Stations. None of
the Seller, any of the Companies or any of the Subsidiaries has any knowledge of
any organizational effort currently being made or threatened by or on behalf of
any labor union with respect to employees of any of the Stations. There are no
unfair labor practice charges pending against the Seller, any of the Companies
or any of the Subsidiaries; there are no pending or, to the knowledge of the
Seller, any of the Companies or any of the Subsidiaries, threatened strikes,
arbitration proceedings involving labor matters or other labor disputes
affecting the Seller, any of the Companies or any of the Subsidiaries or the
Stations and none of the Seller, the Companies or the Subsidiaries has
experienced any strikes, work
36
stoppages or other significant labor difficulties of any nature
at any of the Stations in the past two years.
(ii) The Seller, the Companies and the Subsidiaries have
complied in all material respects with all laws relating to the employment of
labor, including, without limitation, those laws relating to safety, health,
wages, hours, collective bargaining, unemployment insurance, workers'
compensation, equal employment opportunity and payment of withholding of taxes.
(v) BROKERS, FINDERS, ETC. No broker, finder, consultant or
other intermediary is or will be entitled to any broker's or finder's fee or any
other commission or similar fee in connection with the transactions contemplated
by this Agreement except Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX"),
whose fees and expenses will be paid by the Seller in accordance with the
Seller's agreement with such firm and payment of which shall be confirmed by
Xxxxxx Xxxxxxx at the Closing.
4.2 REPRESENTATIONS AND WARRANTIES OF THE BUYER. The
Buyer represents and warrants to the Seller as follows:
(a) DUE ORGANIZATION AND POWER OF THE BUYER. The Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization.
(b) AUTHORIZATION AND VALIDITY OF AGREEMENT. The Buyer has all
requisite corporate power and authority to enter into this Agreement and perform
its obligations hereunder. The execution, delivery and performance by the Buyer
of this Agreement and the consummation by it of the transactions contemplated
hereby have been duly authorized by its Board of
37
Directors, and no other corporate action on the part of the Buyer is necessary
for the execution, delivery and performance by the Buyer of this Agreement and
the consummation by it of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by the Buyer and, assuming due
authorization, execution and delivery by the Seller, is a legal, valid and
binding obligation of the Buyer, enforceable against the Buyer in accordance
with its terms, except to the extent limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting creditors'
rights generally and by general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(c) NO CONFLICT. Except for any consent, approval, filing or
notice that would not, if not given or made, or any violation, conflict, breach,
termination, default or acceleration which does not, materially impair the
ability of the Buyer to consummate the transactions contemplated hereby and
except for the consent of the lenders under the Buyer's senior credit facility,
the execution, delivery and performance by the Buyer of this Agreement and the
consummation by it of the transactions contemplated hereby: (i) will not violate
any provision of any law, rule, regulation, order, judgment or decree applicable
to the Buyer; (ii) will not require any consent or approval of, or filing or
notice to, any governmental or regulatory authority under any provision of any
law applicable to the Buyer, except for the requirements of the HSR Act and
except for the FCC Consent and, except for any consent, approval, filing or
notice
38
requirements which become applicable solely as a result of the specific
regulatory status of the Seller or which the Seller or any of its affiliates are
otherwise required to obtain; (iii) will not violate any provision of the
Certificate of Incorporation or By Laws (or equivalent organizational documents)
of the Buyer; and (iv) will not require any consent, approval or notice under,
and will not conflict with, or result in the breach or termination of, or
constitute a default under, or result in the acceleration of the performance by
the Buyer under, any indenture, mortgage, deed of trust, lease, license,
franchise, contract, agreement or other instrument to which the Buyer is a party
or by which it or any of its assets is bound or encumbered.
(d) QUALIFICATIONS AS LICENSEE. Subject to the matters
described on Schedule 4.2(d), (i) to the best knowledge of Buyer there are no
facts that, under the Communications Act or the FCC Rules, would disqualify it
as a transferee of the FCC Licenses and (ii) the Buyer knows of no reason
related to the Buyer why the FCC would not approve the transfer of control of
the FCC Licenses to the Buyer.
4.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
representations and warranties of the Seller and the Buyer contained in this
Article IV shall not survive the Closing.
4.4 LIMITATION ON REMEDIES. Following the Closing, the Seller
shall have no liability in respect of any of the representations and warranties
contained herein (or in respect of the certificate delivered pursuant to Section
6.2(c) hereof insofar as such certificate relates to such representations and
39
warranties), whether for damages or otherwise and whether arising in contract,
tort or equity or in any other way whatsoever. The Buyer shall not have any
right after the Closing in respect of any of the representations and warranties
of the Seller to rescind, terminate or cancel this Agreement or the Stock
Purchase.
4.5 SCHEDULES. Any matter that is disclosed in a Schedule
hereto in such a way as to make its relevance to the information called for by
another Schedule hereto readily apparent shall be deemed to have been included
in such other Schedule, notwithstanding the omission of an appropriate cross
reference thereto.
4.6 NO IMPLIED REPRESENTATION. The Seller is not making any
representation or warranty whatsoever, express or implied, except those
representations and warranties of the Seller contained in this Agreement or in
any Schedule hereto and the Buyer acknowledges and agrees that it has not relied
on or been induced to enter into this Agreement by any representation or
warranty other than those expressly set forth in Section 4.1 hereof.
ARTICLE V: COVENANTS AND TRANSACTIONS PRIOR TO CLOSING
5.1 ACCESS TO INFORMATION CONCERNING PROPERTIES AND RECORDS;
CONFIDENTIALITY. During the period commencing on the date hereof and ending on
the Closing Date, the Seller shall and shall cause the Companies and the
Subsidiaries to, upon reasonable request, afford to the Buyer, its counsel,
accountants, engineers, appraisers and other authorized
40
representatives and its lenders reasonable access during normal business hours
to the properties, equipment, books, accounts, contracts, documents and records
of the Companies, the Subsidiaries and the Stations, their businesses and
properties, to the extent that doing so does not materially disrupt or interfere
with the operations of the Stations, and the Companies shall, within a
reasonable period of time, furnish or cause to be furnished to the Buyer and its
representatives all existing data and information concerning the business and
properties of the Stations as the Buyer may reasonably request. Without limiting
the generality of the foregoing, the Buyer shall be given such access to the
financial records of the Companies as is necessary for the Buyer to satisfy
itself as to the form and substance of the Closing Balance Sheet. All requests
for information shall be submitted only to Xxxx XxXxxx, Xxxxx Xxxxxxx, Xxxxxxx
Xxxxxxxxx, Xxxxxx Xxxxxxx or Xxxxxxx Xxxxxxx & Xxxxxxxx. The Buyer will not
initiate or maintain contact with any employee of the Seller, the Companies or
the Subsidiaries without the Seller's prior consent, such consent not to be
unreasonably withheld or delayed. Prior to the Closing, the Seller will also
provide the Buyer with a complete and correct list containing the names of each
bank in which each Company and the Subsidiary has an account or safe deposit or
lock box, the account or box number, as the case may be, and the name of every
person authorized to draw thereon or having access thereto. Subject to Section
5.4(c), the Buyer shall keep, and shall cause its agents, attorneys, employees
and representatives to keep, confidential all information obtained by
41
the Buyer with respect to the Stations in accordance with the Confidentiality
Agreement (the "CONFIDENTIALITY AGREEMENT") dated February 26, 1996 by and
between the Buyer and Xxxxxx Communications, Inc. shall survive and is hereby
incorporated by
this reference.
5.2 CONDUCT OF THE BUSINESSES OF THE COMPANIES AND THE
SUBSIDIARIES PRIOR TO THE CLOSING DATE. The Seller agrees that, except as
permitted, required or specifically contemplated by this Agreement or as
otherwise consented to or approved in writing by the Buyer, during the period
commencing on the date hereof and ending at the Closing Date:
(a) the business of the Companies and the Subsidiaries
shall be conducted only in the ordinary course consistent
with past practices;
(b) the Subsidiaries will continue to operate the Stations in
accordance with the terms of the FCC Licenses and in compliance with
all applicable laws and FCC Rules consistent with past practices;
(c) none of the Companies or the Subsidiaries will
amend its organizational documents;
(d) no Company or Subsidiary will (i) make any change in the
number of shares of its capital stock authorized, issued or outstanding
or grant or issue any option, warrant or other right to purchase, or
convert any obligation into, shares of its capital stock or (ii)
purchase or redeem any shares of its capital stock or any other
security;
(e) the Seller will use its, and will cause the Companies and
the Subsidiaries to use their, reasonable efforts to preserve intact
the operations, organization and reputation of the Companies and the
Subsidiaries, to keep available the services of the Companies' present
officers and key employees, and to preserve the good will and business
of the suppliers, advertisers and others having business relationships
with the Companies and the Subsidiaries;
(f) the Companies and the Subsidiaries will pay or
otherwise satisfy obligations (cash and barter) of each
Station on a basis consistent with past practices;
42
(g) the Companies and the Subsidiaries will maintain
its respective assets in the same condition (ordinary wear
and tear excepted) as at the date hereof;
(h) none of the Companies or the Subsidiaries will
remove or make any significant alterations to any of its
assets;
(i) the Companies and the Subsidiaries will timely make all
payments required to be paid under any Material Contract when due and
otherwise pay all liabilities and satisfy all obligations within 90
days of invoice;
(j) neither the Companies nor the Subsidiaries will
declare, pay or make any dividend or other distribution;
(k) the Companies and the Subsidiaries will maintain
its books and records in accordance with generally accepted
accounting principles;
(l) none of the Companies or the Subsidiaries will introduce
any material change with respect to the operation of any Station
including, without limitation, any material changes in the broadcast
hours or in the percentages or types of programming broadcast by the
Station or any other material change in the Station's programming
policies, except such changes in the sole discretion of the Seller, the
Companies or the Subsidiaries, as applicable, exercising good faith, as
are required by the public interest;
(m) the Seller shall continue to maintain and carry
its existing insurance as described on Schedule 4.1(j)
hereto;
(n) none of the Seller, the Companies or the
Subsidiaries will alter the terms of any existing Material
Contract except for immaterial alterations;
(o) except to the extent required under existing Company Plans
as in effect on the date of this Agreement, the Companies and the
Subsidiaries will not increase or modify, or agree to increase or
modify, the compensation, bonuses or other benefits or prerequisites
for employees of any Station, except in the ordinary course of business
consistent with past practice and except for bonuses referred to in
Schedule 4.1(p);
(p) the Companies and the Subsidiaries will not incur any
obligations or sell, dispose of or transfer any of the assets of any
Station other than in the ordinary course of business consistent with
past practice; and
43
(q) the Companies and the Subsidiaries will maintain
advertising and promotional expenditures for the Stations at
levels consistent with past practice.
5.3 ANTITRUST LAWS. As soon as practicable after the execution
of this Agreement, the Buyer and the Seller shall each file with the FTC and the
Antitrust Division any notifications required to be filed by themselves or their
respective "ultimate parent" companies (as such term is defined in the HSR Act
and the regulations promulgated thereunder) under the HSR Act with respect to
the transactions contemplated by this Agreement. The parties hereto will use
their respective reasonable best efforts to make such filings promptly, to
respond to any requests for additional information made by either of such
agencies and to cause the waiting periods under the HSR Act to terminate or
expire at the earliest possible date. Each party hereto shall promptly inform
the others of any material communication from the FTC, the Antitrust Division or
any other domestic or foreign governmental authority regarding the sale of the
Stock or any of the other transactions contemplated by this Agreement. If any
party hereto or any of their respective Affiliates receives a request for
additional information or documentary material from any such government or
authority with respect to the sale of the Stock or the other transactions
contemplated by this Agreement, then such party will endeavor in good faith to
make, or cause to be made, as soon as reasonably practicable and after
consultation with the other party hereto, an appropriate response in compliance
with such request. The filing fee under the HSR Act shall be borne one-half by
the Seller and one-half by the Buyer.
44
5.4 APPLICATIONS FOR FCC CONSENTS. (a) The Buyer agrees that
prior to the filing of the FCC applications referred to below, it will either
(i) assign its rights to purchase GCI Dallas or GCI Texas (as defined below) to
a trustee (the "TRUSTEE") who is independent of the Buyer within the meaning of
Section 73.3555 Note 2(e) of the FCC Rules, or (ii) agree to assign to the
Trustee one of the other FM radio stations in the Dallas/Fort Worth market
controlled by the Buyer. Within ten Business Days after the date of this
Agreement (and the Buyer shall use its reasonable best efforts to make such
filing within seven Business Days), the Seller, the Buyer and the Trustee shall
file complete applications with the FCC seeking its approval of and consent to
the transactions contemplated by this Agreement, consistent with the preceding
sentence, and the Seller and the Buyer shall each use its best efforts to cause
the FCC to extend the effectiveness of any such consents until all such consents
have been granted. The Buyer and the Seller shall cooperate with each other in
the preparation of such applications and shall take all steps necessary for the
expeditious grant of such approvals and consents. Should the Buyer or the Seller
become aware of facts which could reasonably be expected to materially and
adversely affect or materially delay the issuance of such consents, such party
shall promptly notify the other party in writing. The Seller and the Buyer
covenant to take all steps necessary to permit the consummation of the
transactions contemplated by this Agreement under the FCC Rules and the Buyer
shall consummate and cause the Trustee to consummate the
45
transactions with the Trustee contemplated in the first sentence of this
Section. Each party shall bear its own costs and expenses (including the fees
and disbursements of its counsel) in connection with the preparation of the
portion of the FCC application to be prepared by it and in connection with the
processing of the FCC application. FCC application fees shall be borne equally
by the Seller and the Buyer.
(b) Notwithstanding anything set forth herein to the contrary,
if the condition set forth in Section 6.1(b)(i) of this Agreement has been
satisfied with respect to all Stations other than the Stations owned by GCI
Dallas Holdings, Inc. ("GCI DALLAS") and GCI Texas Holdings, Inc. ("GCI TEXAS"
and, together with GCI Dallas, the "TEXAS COMPANIES") prior to December 2, 1996,
the parties agree that, at the Seller's or the Buyer's election, there shall be
two closings as follows: (i) a closing (the "FIRST CLOSING") relating to the
Stock with respect to the Companies other than the Texas Companies for a
purchase price of $390,000,000 plus or minus the Adjustment Amount with respect
to the Companies (excluding the Texas Companies) and (ii) a closing (the "SECOND
CLOSING") relating to the Stock of the Texas Companies for a purchase price of
$20,000,000 plus or minus the Adjustment Amount with respect to the Texas
Companies (the "SECOND CLOSING PURCHASE PRICE") to occur on the second Business
Day following satisfaction of the condition set forth in Section 6.1(b)(i)
relating to the transfer of the Texas Companies, PROVIDED, HOWEVER, if the
Second Closing has not occurred on or prior to December 2, 1996, then on such
date, the Buyer shall pay
46
the Seller the Second Closing Purchase Price in exchange for the Stock, at the
option of the Buyer, of either GCI Dallas or GCI Texas. If the proviso to the
preceding sentence becomes applicable, the Buyer and the Seller shall agree in
good faith on a sale of the remaining Texas Company owned by the Seller to a
third party, and the Seller shall cause the net proceeds of such sale to be paid
to the Buyer; PROVIDED that the Seller shall not be required to incur any
obligations or unreimbursed costs or expenses in connection with such sale. The
Seller shall continue to retain control of and to receive the benefits of
ownership of the Texas Companies until transfers of the related Stock thereof.
(c) During the period commencing on the date hereof and ending
on the date of the sale of the remaining Texas Company by the Seller, the Seller
shall cooperate (pursuant to written instructions by the Buyer) with the Buyer
in connection with a sale of the Texas Companies; PROVIDED that the Buyer shall
not provide any information to any potential purchaser of the Texas Companies
that is considered confidential pursuant to the terms of the Confidentiality
Agreement or the terms hereof without the prior consent of Xxxx XxXxxx, which
consent shall not be unreasonably withheld.
5.5 EMPLOYEE BENEFIT MATTERS. (a) The Buyer agrees that,
during the period commencing at the Closing Date and ending on the one year
anniversary of the Closing Date, the employees of the Companies and the
Subsidiaries (other than those employees covered by a collective bargaining
agreement) will continue to be provided with employee benefit plans which in the
aggregate are
47
substantially comparable to those currently provided by the Companies and the
Subsidiaries to such employees. Subject to the foregoing, nothing herein shall
prevent the amendment or termination of any such plan, program or arrangement.
(b) The Buyer shall, or shall cause the Companies or the
Subsidiaries to, promptly pay or provide when due all compensation and benefits
earned or accrued through or prior to the Closing Date as provided pursuant to
the terms of any Company Plan. The Buyer shall, or shall cause the Companies or
the Subsidiaries to, pay promptly or provide when due all compensation and
benefits required to be paid pursuant to the terms of any individual agreement
with any current or former employee or director in effect and disclosed to the
Buyer as of the date hereof. Nothing in this Agreement shall require the
continued employment of any person or prevent the Companies and/or the Buyer
from taking any action or refraining from taking any action which the Companies
could take or refrain from taking prior to the Closing Date.
(c) The Buyer shall, or shall cause the Companies or the
Subsidiaries to, be responsible for any medical, life insurance, disability and
other welfare plan expenses and benefits under the Company Plans or any plan
implemented by the Buyer after the Closing with respect to claims incurred by
employees of the Companies or the Subsidiaries who continue employment with the
Companies or the Subsidiaries after the Closing Date ("Transferred Employees")
and their covered dependents on or after the Closing Date. For purposes of this
48
paragraph, a claim is deemed incurred when the services that are the subject of
the claim are performed; in the case of long-term disability benefits, when the
disability occurs; and, in the case of a hospital stay, when the employee first
enters the hospital.
(d) With respect to any welfare benefit plans (as defined in
section 3(1) of ERISA) maintained by the Buyer for the benefit of Transferred
Employees on and after the Closing Date, the Parent shall (i) cause there to be
waived any pre-existing condition limitations and (ii) give effect, in
determining any deductible and maximum out-of-pocket limitations, to claims
incurred and amounts paid by, and amounts reimbursed to, such Transferred
Employees with respect to similar plans maintained by the Companies for their
benefit immediately prior to the Closing Date.
(e) With respect to any accrued but unused vacation time to
which any Transferred Employee is entitled pursuant to a Company Plan that is a
vacation policy applicable to such Transferred Employee immediately prior to the
Closing Date (the "Vacation Policy"), the Buyer shall allow such Transferred
Employee to use such accrued vacation; PROVIDED, HOWEVER, that if the Buyer
deems it necessary to disallow such employee from taking such accrued vacation,
the Buyer shall be liable for and pay in cash to each such Transferred Employee
an amount equal to such vacation time in accordance with terms of the Vacation
Policy; PROVIDED, FURTHER, that the Buyer shall be liable for and pay in cash an
amount equal to such accrued vacation time to any Transferred Employee whose
employment terminates for any reason
49
other than "cause" (as defined on Schedule 5.5 hereof) prior to the close of
business on the last calendar day of the year during which the Closing Date
occurs.
(f) The Buyer and the Seller shall each comply in all respects
with the Worker Adjustment Retraining Notification Act.
5.6 CREDIT AGREEMENT. At or prior to the Closing, the Seller
shall repay all obligations under the Credit Agreement, indebtedness for
borrowed money and purchase money mortgages and obtain releases, in form and
substance reasonably acceptable to the Buyer, removing all Liens created
pursuant to the Credit Agreement, the related pledge agreement and subsidiary
guarantee and pledge agreement, and any documents evidencing or ancillary to any
other indebtedness for borrowed money or purchase money mortgages.
5.7 NOTIFICATION. (a) The Seller and the Companies shall
notify the Buyer of any material litigation, arbitration or administrative
proceeding pending or, to its knowledge, threatened against any of the Seller,
the Companies or the Subsidiaries which challenges the transactions contemplated
hereby or which could have a Material Adverse Effect.
(b) Between the date of this Agreement and the Closing, the
Seller shall keep the Buyer reasonably informed of all material operational
matters and business developmts known to the Seller with respect to the Stations
and their respective markets, including any competitive changes.
5.8 NO INCONSISTENT ACTION. None of the Seller, the
Companies or the Subsidiaries shall take any action which is
50
inconsistent with its obligations under this Agreement or that would hinder or
delay the consummation of the transactions contemplated by this Agreement. None
of the Seller, the Companies or the Subsidiaries will take any action that would
disqualify or impair any such person as an assignor of any FCC License or
licensee, owner or operator of any of the Stations.
5.9 NON-SOLICITATION. Between the date of this Agreement and
the Closing Date, none of the Seller, the Companies or the Subsidiaries nor any
Affiliate thereof shall, directly or indirectly, (i) solicit, initiate or
encourage submission of any proposal or offer from any Person relating to any
acquisition or purchase of any capital stock or assets of any Company, any
Subsidiary or any Station or any other transaction that would result in the
transfer of control of any Company, any Subsidiary or any Stations or an
investment of any kind by any Person in any Subsidiary (each an "ACQUISITION
PROPOSAL") or (ii) participate in any discussions or negotiations regarding, or
furnish to any Person any information with respect to, an Acquisition Proposal
or any of the foregoing, except to the extent required by law, or (iii)
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any other Person to do or seek any of the
foregoing.
5.10 FINANCIAL STATEMENTS. (a) As soon as such
financial statements become available, the Seller will deliver to
the Buyer a copy of (i) the audited consolidated balance sheet of
the Seller as at December 31, 1995, the audited consolidated
income statement and statement of cash flows of the Seller for
51
the year ended December 31, 1995 and (ii) the unaudited balance sheets for the
Companies as at December 31, 1995 and unaudited income statements of the
Companies for the year ended December 31, 1995. Such financial statements shall
be prepared in accordance with generally accepted accounting principles applied
on a consistent basis, except as may be indicated in the notes thereto. Such
financial statements shall be true and complete and fairly present in all
material respects the financial condition and the results of operations of the
Seller and the Companies, taken as a whole, respectively, as of December 31,
1995 and for the year ended December 31, 1995.
(b) Within 30 days after the end of each month until the
Closing Date, the Seller shall deliver to the Buyer an unaudited statement of
the gross revenue, net revenue, expenses and cash flow for the Stations in each
of the five markets of the Seller for the month then ended, along with a balance
sheet as of the end of such month. All statements furnished pursuant to this
Section 5.10 shall present fairly in all material respects, as of the dates and
for the periods stated therein, the financial information set forth therein with
respect to the Stations taken as a whole. The Seller shall also deliver to the
Buyer regularly prepared internal pacing reports for each of the Stations every
two weeks.
(c) Subject to Section 5.4(c), the Buyer agrees to maintain
such information provided pursuant to this Section 5.10 in strict confidence
pursuant to the terms of the Confidentiality Agreement. In addition, the Buyer
shall limit access to such
52
information to corporate officers of the Buyer located in its principal
executive offices in New York City and the Buyer's representatives and will not
permit any employees of any stations that compete with any of the Stations to
have access to such information.
5.11 REPAIR OF ASSETS. The Seller shall cause to be repaired,
replaced or restored any damaged or lost material asset of the Companies and
Subsidiaries to its prior condition as soon as possible and in no event later
than the Closing; PROVIDED, HOWEVER, that the Seller shall have no obligation to
cause the repair, replacement or restoration of any such damaged or lost asset
(i) that is obsolete if no replacement asset is necessary or useful for the
continued operation of the applicable Station consistent with past practice or
(ii) if the cost to repair, replace or restore such asset is less than $100,000.
If the Seller is unable or fails to repair, replace or restore any such damaged
or lost asset prior to the Closing, and the cost of such repair, replacement or
restoration would exceed $200,000, the Buyer may elect to terminate this
Agreement pursuant to Section 8.1(a)(vi) but only if (a) the Buyer shall have
provided the Seller 60 days to repair, replace or restore such asset or (b) if
such asset cannot be repaired, replaced or restored within such 60 days, the
Seller does not offer to reduce the Stock Purchase Price by the cost of
repairing, replacing or restoring such asset (less the amount of any anticipated
insurance proceeds related thereto).
53
5.12 CERTAIN EXISTING LIABILITIES. (a) The Seller agrees that
(i) it will satisfy in full prior to the Closing, or provide for the
satisfaction of in a manner reasonably acceptable to the Buyer after the
Closing, all obligations to make payments under the Non-Competition Agreement,
dated as of March 31, 1995, by and between GCI Orange, Inc. and Xx. Xxxx
Xxxxxxxx or (ii) the amount of such payments will be reflected in Working
Capital or Long-Term Liabilities on the Closing Date Balance Sheet.
(b) The Seller shall use its reasonable efforts to cause the
premises (the "EXCESS LEASED SPACE") covered by the Lease Agreement, dated
November 1, 1989, between Crown-Urban Square I, Ltd., as lessor, and
Summit-Dallas Broadcasting Corporation, as lessee, and the Lease Takeover
Agreement, dated February 24, 1989, between Xxxxxx Xxxx Associates, as lessor,
and Xxxxxxx Broadcasting Corporation, as lessee (the "TEXAS LEASES"), to be
subleased to a third party (who shall be reasonably satisfactory to the Buyer;
provided that the Buyer may not object to any party on the basis of its
creditworthiness if such creditworthiness is substantially comparable to that of
the Seller or the Buyer) for the term of such leases and pay or provide for the
payment (including by reducing the Stock Purchase Price) of any shortfall in the
lease payment obligations of the Companies under the Texas Leases after taking
into account payments under such subleases and the time value of money
discounted at the rate of 8% per annum. If the Seller has not caused the Excess
Leased Space to be subleased prior to the closing of the Texas Companies, then
it shall provide for the
54
release of the lessee from the applicable Texas Lease and the assumption of the
liabilities thereunder on terms and conditions reasonably satisfactory to the
Buyer; provided that the assumption of all such liabilities by any Person that
has a creditworthiness that is substantially comparable to the Seller or the
Buyer shall be deemed to be satisfactory to the Buyer.
5.13 COMMITMENTS FOR FINANCING. The Buyer will diligently and
timely take, or cause to be taken, all necessary or appropriate action, to
obtain sufficient cash on hand to allow the Buyer to pay the Stock Purchase
Price, consummate the transactions contemplated hereby and pay related fees and
expenses of the Buyer and to obtain a consent to the transactions contemplated
hereby under its senior credit facility. Nonetheless, the obligations of the
Buyer hereunder are not subject to a contingency based on the availability or
suitability of financing.
5.14 FURTHER ACTIONS. Subject to the terms and conditions
hereof, each of the parties hereto agrees to use its reasonable best efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement, including using its reasonable best
efforts: (i) to obtain any licenses, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities as are
required in connection with the consummation of the transactions contemplated
hereby; (ii) to effect all necessary registrations and filings; (iii) to take
55
such reasonable actions to defend any lawsuits or other legal proceedings,
whether judicial or administrative, whether brought derivatively or on behalf of
third parties (including governmental agencies or officials), challenging this
Agreement or the consummation of the transactions contemplated hereby; and (iv)
to furnish to each other such information and assistance as is reasonably
requested in connection with the foregoing.
ARTICLE VI: CONDITIONS PRECEDENT
6.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PARTIES. The
respective obligations of the parties hereto are subject to the satisfaction (or
waiver by each of the Seller and the Buyer) at or prior to the Closing of each
of the following conditions:
(a) NO INJUNCTION. No order of any court or any
administrative agency shall be in effect which restrains or
prohibits the transactions contemplated hereby.
(b) REGULATORY APPROVALS. (i) Subject to Section 5.4(b), the
FCC shall have entered an order or orders approving or consenting to
the transfer of control of the FCC Licenses of the Companies (the "FCC
CONSENT") and, if required by the Buyer, such order shall have become a
Final Order. The FCC Consent shall not have been dissolved, rescinded,
adversely modified, or adversely amended, and shall be in full force
and effect on the Closing Date and shall be a Final Order and (ii) all
applicable waiting periods under the HSR Act applicable to the
transactions contemplated hereby shall have expired or been terminated.
(c) REVERSAL AGREEMENT. If the Closing with respect to any of
the Stations occurs prior to the receipt of the Final Order, the Seller
shall have executed and delivered to the Buyer a Reversal Agreement
(the "REVERSAL AGREEMENT") in form and substance reasonably
satisfactory to the parties hereto.
6.2 CONDITIONS PRECEDENT TO OBLIGATION OF THE BUYER.
The obligation of the Buyer to consummate the transactions
contemplated by this Agreement is subject to the satisfaction (or
56
waiver by the Buyer) at or prior to the Closing of each of the
following additional conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Seller contained herein shall
have been true and correct in all material respects on and as of the
date hereof; PROVIDED that any lost or damaged asset (or action related
thereto) that is the subject of the provisions of Section 5.11, shall
not be a basis for the Buyer to assert that this condition is not
satisfied.
(b) PERFORMANCE OF AGREEMENTS. The Seller shall have performed
in all material respects all obligations and agreements, and complied
in all material respects with all covenants and conditions, contained
in this Agreement to be performed or complied with by it prior to or on
the Closing Date.
(c) CERTIFICATE. The Buyer shall have received (i) a
certificate of the Seller, dated the Closing Date, executed on behalf
of the Seller by its General Partner to the effect that the conditions
specified in paragraphs (a) and (b) above have been fulfilled.
(d) LEGAL OPINIONS. The Buyer shall have received a legal
opinion from Xxxxxxx Xxxxxxx & Xxxxxxxx, dated the Closing Date, in
form reasonably satisfactory to the Buyer and (ii) a legal opinion of
Wiley, Rein & Fielding, dated the Closing Date, in form reasonably
satisfactory to the Buyer.
(e) NO MATERIAL ADVERSE CHANGE. Between the date hereof and
the Closing Date, there shall not have occurred any material adverse
change in the condition (financial or otherwise), business or results
of operations of the Companies, taken as a whole; provided that the
following shall not be deemed to constitute a material adverse change
for purposes of this Section 6.2(d): adverse effects caused by (a)
reductions in the market value of radio stations generally, including
reductions in multiples of broadcast cash flow paid for radio stations,
(b) regulatory changes or political events affecting the broadcasting
industry generally, (c) technical developments generally, (d) changes
in the financial markets, (e) general economic conditions, (f) war or
armed hostilities, (g) calamities, disasters and acts of God, (h) any
action taken by the Buyer or any of its Affiliates, including, without
limitation, any change in the operations, policies, programming or
format, at any station owned or controlled by the Buyer or such
Affiliate that is in the same market as any of the Stations, or (i) any
action taken by the Buyer, or by Seller or any of the Companies at
57
the written request of the Buyer, relating to the sale or attempted
sale of the Texas Companies.
(f) FIRPTA CERTIFICATES. The Seller shall have delivered to
Buyer a certificate of the Seller satisfying the requirements of
Treas. Reg. ss. 1.1445-2(b).
(g) RESIGNATION OF DIRECTORS. All directors of any Company and
any Subsidiary whose resignations shall have been requested by Buyer
not less than five Business Days prior to the Closing Date shall have
submitted their resignations or been removed from office effective as
of the Closing Date.
(h) RELEASE. The Seller shall have executed a release, in form
and substance reasonably satisfactory to Buyer, pursuant to which the
Seller and its Affiliates release each Company and each Subsidiary and
the present and former directors, officers, agents and employees of
each Company and each Subsidiary from any and all actions, claims,
causes of action or liability of any nature, in law or equity, known or
unknown and whether or not heretofore asserted, which the Seller ever
had, now has or hereafter can, shall or may have against any of the
foregoing for, upon or by reason of any matter, cause or thing
whatsoever from the formation of each Company and each Subsidiary to
the Closing Date.
(i) RENEWAL LICENSES. The FCC shall have granted the pending
license renewal applications for the Atlanta and Orlando Stations,
without condition, and such grants shall, if required by the Buyer,
have become a Final Order.
(j) TERMINATION OF AGREEMENTS. The Seller shall have
terminated, without liability after the Closing, each of the agreements
described on Schedule 4.1(s).
6.3 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE SELLER. The
obligation of the Seller to consummate the transactions contemplated by this
Agreement is subject to the satisfaction (or waiver by the Seller) at or prior
to the Closing of each of the following additional conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Buyer contained herein shall have
been true and correct in all material respects on and as of the date
hereof.
(b) PERFORMANCE OF AGREEMENTS. The Buyer shall have
performed in all material respects all obligations and
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agreements, and complied in all material respects with all covenants
and conditions, contained in this Agreement to be performed or complied
with by it prior to or on the Closing Date.
(c) CERTIFICATE. The Seller shall have received a certificate
of the Buyer, dated the Closing Date, executed on behalf of the Buyer
by its President or any Senior Vice President, to the effect that the
conditions specified in paragraphs (a) and (b) above have been
fulfilled.
(d) LEGAL OPINIONS. The Seller shall have received (i) a legal
opinion from Debevoise & Xxxxxxxx, dated the Closing Date, in form
reasonably satisfactory to the Seller and (ii) a legal opinion of
Xxxxxxxxx, Xxxxxx & Xxxxxx, dated the Closing Date, in form reasonably
satisfactory to the Seller.
ARTICLE VII: ASSUMPTION OF CERTAIN OBLIGATIONS
AND LIABILITIES; INDEMNIFICATION
7.1 ASSUMPTION AND INDEMNIFICATION. (a) The Buyer hereby
agrees to indemnify and hold the Seller and its directors, officers, partners,
employees, agents and other affiliates (other than the Companies) (collectively,
the "SELLER INDEMNIFIED PARTIES") harmless against and in respect of all losses,
liabilities, damages, costs and expenses (including costs of suit and reasonable
attorneys' fees and expenses) (collectively, "LIABILITIES"), incurred by any of
them on or after the Closing Date relating to the assets, business, operations,
conduct, products and employees (including retired employees) of the Companies
and the Subsidiaries (including any loss, liability, claim, damage or expenses
relating to the termination by the Buyer or the Companies and the Subsidiaries
after the Closing of any employee of the Companies or the Subsidiaries or any
change in the terms of employment of any employee of the Companies or the
Subsidiaries after the Closing) imposed on any Seller Indemnified Party.
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(b) The Seller hereby agrees to indemnify and hold the Buyer
and its directors, officers, employers, agents and other Affiliates (including
the Companies and the Subsidiaries after the Closing) (collectively, the "BUYER
INDEMNIFIED PARTIES") harmless against and in respect of all Liabilities
incurred by the Seller relating to the assets, business, operations, conduct,
products and employees (including retired employees) of any Affiliate of the
Seller (other than the Companies and the Subsidiaries).
(c) All Liabilities referred to in the foregoing paragraphs
(a) and (b) are collectively referred to as "INDEMNIFIED LIABILITIES" and
"INDEMNIFIED PARTY" shall mean either a Seller Indemnified Party or a Buyer
Indemnified Party.
7.2 PROCEDURE. If any claim or demand by any person is made
against an Indemnified Party, and if such Indemnified Party intends to seek
indemnity with respect thereto under this Article VI, such Indemnified Party
shall promptly notify the indemnifying party in writing of such claim or demand,
provided that the failure to so notify the indemnifying party shall not relieve
the indemnifying party from any liability which it may have hereunder unless it
is actually prejudiced thereby. The indemnifying party shall have 30 days after
receipt of such notice to undertake, conduct and control, through counsel of its
own choosing and at its own expense, the settlement or defense thereof, and the
Indemnified Party shall cooperate with the indemnifying party in connection
therewith; PROVIDED that the Indemnified Party may participate at its own
expense in such
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settlement or defense through counsel chosen by such Indemnified Party. The
Indemnified Party shall have the right to pay or settle any such claim; PROVIDED
that in such event it shall waive any right to indemnity therefor by the
indemnifying party. If the indemnifying party does not notify the Indemnified
Party within 30 days after the receipt of the Indemnified Party's notice of a
claim of indemnity hereunder that it elects to undertake the defense thereof,
the Indemnified Party shall have the right to contest, settle or compromise the
claim in its sole discretion and shall not thereby waive any right to indemnity
therefor pursuant to this Agreement. The indemnifying party shall not, except
with the consent of the Indemnified Party, enter into any settlement that does
not include as an unconditional term thereof the giving by the person or persons
asserting such claim to all Indemnified Parties an unconditional release from
all liability with respect to such claim or consent to entry of any judgment.
Notwithstanding the foregoing, following the Closing, the Buyer will afford, and
cause the Companies and the Subsidiaries to afford, to the Seller Indemnified
Parties and their counsel, accountants and other authorized representatives
reasonable access during normal business hours to the properties, books and
records of the Companies and the Subsidiaries (and permit the Seller Indemnified
Parties and their counsel, accountants and other authorized representatives to
make copies of such books and records at their own expense), to the extent that
such access may be reasonably required to facilitate the investigation,
litigation and final
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disposition of any claim which may have been or may be made against any Seller
Indemnified Party relating to the Companies or the Subsidiaries or any of the
transactions contemplated by this Agreement. The Seller Indemnified Parties
shall hold any such confidential information in confidence on the same terms and
subject to the same conditions applicable to Buyer in Section 5.1(b) hereof.
7.3 PAYMENT. On each occasion that an Indemnified Party shall
be entitled to indemnification or reimbursement under this Article VII, the
indemnifying party shall, at each such time, promptly pay the amount of such
indemnification or reimbursement. If the Indemnified Party shall be entitled to
indemnification under this Article VII and the indemnifying party shall not
elect to control any legal proceeding in connection therewith, the indemnifying
party shall pay upon request from time to time to the Indemnified Party an
amount equal to the Indemnified Party's costs and expenses arising as a result
of such proceeding which have not been previously reimbursed.
ARTICLE VIII: MISCELLANEOUS
8.1 TERMINATION AND ABANDONMENT.
(a) GENERAL. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time,
but not later than the Closing Date:
(i) by mutual written consent of the Buyer and the
Seller;
(ii) by the Buyer after December 2, 1996 if, through no
fault of the Buyer, the Closing shall not have occurred;
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(iii) by the Seller after December 2, 1996 if, through
no fault of the Seller, the Closing shall not have occurred;
(iv) by the Buyer if there has been a material breach
of any representation, warranty or covenant made in this
Agreement by the Seller;
(v) by the Seller if there has been a material breach
of any representation, warranty or covenant made in this
Agreement by the Buyer;
(vi) by the Buyer in accordance with Section 5.11; or
(vii) by the Buyer if (a) one or more FM Stations shall
have operated at less than one half of their full authorized effective
radiated power for a period of more than seven consecutive days or an
aggregate of ten days in any month period, (b) the Buyer shall have
used its reasonable efforts to assist the Companies in returning such
Stations to operation at full authorized effective radiated power (at
the expense of the Seller), and (c) such operation at less than one
half of full authorized effective radiated power shall result in a
reduction in broadcast cash flow that is material to all the FM
Stations taken as a whole.
(b) PROCEDURE UPON TERMINATION. In the event of the
termination and abandonment of this Agreement, written notice thereof specifying
in sufficient detail the basis for such termination (including, in respect of
any termination pursuant to clause (iv) or (v) of Section 8.1(a), reasonably
sufficient detail of the breaches of representation, warranty or covenant) shall
promptly be given to the other party hereto and this Agreement shall terminate
and the transactions contemplated hereby shall be abandoned without further
action by any of the parties hereto.
(c) SURVIVAL OF CERTAIN PROVISIONS. The respective obligations
of the parties hereto pursuant to this Section 8.1 and Sections 8.2 and 8.10
shall survive any termination of this Agreement and Sections 5.4(b) and 5.4(c)
shall survive termination of this Agreement for six months.
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8.2 FEES AND EXPENSES. Subject to Section 8.1(a)(vii), whether
or not the transactions contemplated hereby are consummated, each of the parties
hereto shall pay its own fees and expenses incident to the negotiation,
preparation and execution of this Agreement, including attorneys', accountants'
and other advisors' fees and the fees and expenses of any broker, finder or
agent retained by such party in connection with the transactions contemplated by
the Agreement.
8.3 NO CONTROL BY THE BUYER. Between the date of this
Agreement and the Closing Date, the Buyer shall not directly or indirectly
control, supervise or direct, or attempt to control, supervise or direct, the
operations of the Stations, but such operations shall be the sole responsibility
and in the complete discretion of the Seller, the Companies and the
Subsidiaries.
8.4 TRANSFER TAXES. Any transfer tax shall be borne
one-half by the Buyer and one-half by the Seller.
8.5 NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing delivered by hand, telex, facsimile or registered letter with return
receipt requested and shall be deemed to have been duly given or made when
delivered by hand, or, in the case of telex notice, when sent, answerback
received, or, in the case of facsimile note or registered letter, when received
by the addressee, addressed as follows:
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(a) if to the Seller, to it at:
Xxxxxx Communications, Inc.
000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx X. XxXxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Kohlberg Kravis Xxxxxxx & Co., L.P.
0 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) if to the Buyer, to it at:
Infinity Broadcasting Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other persons or addresses as any party shall specify as to itself by
notice in writing to the other parties.
8.6 ENTIRE AGREEMENT. This Agreement (including the
Schedules hereto) constitutes the entire agreement between the
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parties hereto and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof.
8.7 BINDING EFFECT; BENEFIT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
8.8 ASSIGNABILITY. This Agreement shall not be assigned by
either of the parties hereto without the prior written consent of the other
party; provided, however, that the Buyer may, without the prior written consent
of the Seller, assign all of its rights hereunder to one or more entities, 100%
of the interests in which are owned directly or indirectly by the Buyer, except
that no such assignment shall be permitted without the written consent of the
Seller if such assignment would subject the FCC application to an additional
public notice period under the FCC Rules, and provided that, notwithstanding any
such assignment, the Buyer shall remain liable to perform all of its obligations
hereunder.
8.9 AMENDMENT AND MODIFICATION; WAIVER. Subject to applicable
law, this Agreement may be amended, modified and supplemented by a written
instrument authorized and executed on behalf of the parties at any time prior to
the Closing Date with respect to any of the terms contained herein. No waiver by
any
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party of any of the provisions hereof shall be effective unless explicitly set
forth in writing and executed by the party so waiving. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including
without limitation, any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance with
any representations, warranties, covenants, or agreements contained herein, and
in any documents delivered or to be delivered pursuant to this Agreement and in
connection with the Closing hereunder. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
8.10 PUBLIC ANNOUNCEMENTS. Unless otherwise required by law or
any regulation or rule of any stock exchange binding upon the Seller or the
Buyer, prior to the Closing no news release or other public announcement
pertaining to the transactions contemplated by this Agreement will be made by or
on behalf of any party hereto without the prior written approval of the other
party (such consent not to be unreasonably withheld or delayed). Where any
announcement, communication or circular concerning the transactions referred to
in this Agreement is required by law or any regulation or rule of any stock
exchange it shall be made by the relevant party after consultation, where
reasonably practicable, with the other party and taking into account the
reasonable requirements (as to timing, contents and manner of making or despatch
of the announcement, communication or circular) of the other party.
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8.11 KNOWLEDGE. Whenever this Agreement makes reference to the
knowledge of (i) the Seller, such reference shall be construed to mean the
actual knowledge of Xxxxxxx XxXxxx, Xxxxx Xxxxxxx, or Xxxxxxx Xxxxxxxxx, (ii)
the Companies or the Subsidiaries, such reference shall be construed to mean the
actual knowledge of the General Manager of the applicable Station or Stations.
8.12 NO RECOURSE. No recourse shall be available to the assets
of any natural person that is a partner or an Affiliate of any partner
(including the general partner of the Seller), or any officer, director, agent,
employee, shareholder or partner thereof for any obligations of the Seller to
the Buyer pursuant to this Agreement.
8.13 SECTION HEADINGS. The section headings contained
in this Agreement are inserted for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
8.14 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of which together shall be deemed to be one and the same instrument.
8.15 APPLICABLE LAW. This Agreement and the legal relations
between the parties hereto shall be governed by and construed in accordance with
the laws of the State of New York without regard to conflicts of laws principles
thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
INFINITY BROADCASTING CORPORATION
By:______________________________
Name:
Title:
XXXXXX HOLDINGS L.P.
By: Radio Associates, L.P.,
General Partner
By: KKR Associates, its
General Partner
By:______________________________
Name:
Title: General
Partner
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