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EXHIBIT 99.2
________________________________________________________________________________
STOCK PURCHASE AGREEMENT
BETWEEN
▇▇▇▇▇▇ BROADCASTING SYSTEM, INC.,
AND
LMC SOUTHEAST SPORTS, INC.
DATED AS OF SEPTEMBER 22, 1995
________________________________________________________________________________
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TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 1 -
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 1 -
1.2 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 4 -
1.3 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 4 -
1.4 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 4 -
ARTICLE II - SALE AND PURCHASE OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 5 -
2.1 Sale of Shares at the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 5 -
2.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 5 -
2.3 Determination of Net Partnership Value . . . . . . . . . . . . . . . . . . . . . . . . - 5 -
ARTICLE III - CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 7 -
3.1 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 7 -
3.2 Deliveries by the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 7 -
3.3 Deliveries by the Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 7 -
ARTICLE IV - ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 8 -
4.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 8 -
4.2 Access to Premises, Records, Properties and Employees . . . . . . . . . . . . . . . . . - 8 -
4.3 Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 8 -
4.4 Approvals and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 8 -
4.5 Cooperation of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 -
4.6 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 -
4.7 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 -
4.8 Access to Certain Records Following Closing. . . . . . . . . . . . . . . . . . . . . . - 9 -
4.9 Services Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 -
4.10 HSR Act Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 -
4.11 Restrictions on Activities; Telecast Rights Agreements . . . . . . . . . . . . . . . . - 10 -
4.12 Section 338(h)(10) Election. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 10 -
4.13 Other Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 10 -
4.14 Change of TSP's Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
4.15 TSP Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
4.16 Best Efforts; Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
5.1 Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
5.2 Corporate Status, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 14 -
5.3 Authority; No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 14 -
5.4 Capital Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 15 -
5.5 Title to Shares and Partnership Interest . . . . . . . . . . . . . . . . . . . . . . . - 15 -
5.6 Corporate Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 -
5.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 -
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5.8 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 -
5.9 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 -
5.10 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 -
5.11 Absence of Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 -
5.12 Litigation and Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 -
5.13 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 -
5.14 Contracts and Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 -
5.15 Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 -
5.16 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 -
5.17 Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 -
5.18 Labor-Related Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 -
5.19 Approvals and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 -
5.20 No Representations Regarding the Partnership . . . . . . . . . . . . . . . . . . . . . - 20 -
5.21 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 -
ARTICLE VI - CONDUCT OF BUSINESS OF TSP PENDING CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 -
6.1 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 -
6.2 Issuance of Securities, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 -
6.3 Dividends or Distributions; Cancellation of Affiliate Payables . . . . . . . . . . . . - 21 -
6.4 Amendment of Charter; Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . - 21 -
6.5 No Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 21 -
6.6 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 21 -
6.7 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 -
6.8 Other Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 -
ARTICLE VII - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
7.1 Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 -
7.2 Corporate Status and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 -
7.3 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 -
7.4 Approvals and Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
7.5 Investment Intent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
7.6 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
7.7 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
7.8 Absence of Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
7.9 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
ARTICLE VIII - CONDITIONS TO OBLIGATIONS OF THE PURCHASER . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
8.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
8.2 Performance of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
8.3 Certificates, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
8.4 Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
8.5 No Injunctions, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
8.6 Consents and Approvals of Third Parties . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
8.7 Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
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8.8 No Material Adverse Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
8.9 Telecast Rights Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
8.10 Activities Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
ARTICLE IX - CONDITIONS TO OBLIGATIONS OF THE SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
9.1 Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
9.2 Performance of Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 -
9.3 Security Documents, Certificates, Etc. . . . . . . . . . . . . . . . . . . . . . . . . - 26 -
9.4 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 -
9.5 No Injunctions, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 -
9.6 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 -
9.7 Closing of Transactions Contemplated by Merger Agreement. . . . . . . . . . . . . . . . - 27 -
9.8 Telecast Rights Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 -
ARTICLE X - INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 -
10.1 Indemnification by the Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 -
10.2 Indemnification by the Purchaser. . . . . . . . . . . . . . . . . . . . . . . . . . . . - 28 -
10.3 Third-Party Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 29 -
10.4 Certain Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 -
10.5 Excluded Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 -
ARTICLE XI - TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 -
11.1 Noncompliance of the Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 -
11.2 Noncompliance of the Purchaser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 -
11.3 HSR Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 -
11.4 Termination of Merger Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 -
11.5 Termination Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 -
ARTICLE XII - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 -
12.1 Reliance on Representations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 -
12.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 -
12.3 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 -
12.4 Waiver; Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 -
12.5 Counterparts, Headings, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 -
12.6 Successors and Assigns; Assignability . . . . . . . . . . . . . . . . . . . . . . . . . - 33 -
12.7 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 -
12.8 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 -
12.9 Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 -
12.10 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 -
12.11 Right to Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 -
12.12 Effectiveness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 35 -
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EXHIBITS AND SCHEDULES
EXHIBITS
--------
Exhibit A Agreement Restricting Activities
Exhibit B Promissory Note
Exhibit C Services Agreement
Exhibit D Telecast Rights Agreement with Atlanta Hawks Limited Partnership
Exhibit E Telecast Rights Agreement with Atlanta National League Baseball Club, Inc.
Exhibit F Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Exhibit G Pledge Agreement executed by the Purchaser
Exhibit H Pledge Agreement executed by TSP
Exhibit I Negative Pledge Agreement executed by TSP
Exhibit J Opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C.
SCHEDULES
---------
Schedule 5.2 States Where TSP is Qualified to do Business
Schedule 5.5(a) Restrictions Under Agreements to which Partnership is a Party
Schedule 5.5(b) Restrictions Under Agreements to which TSP is a Party
Schedule 5.7(c) Tax Claims
Schedule 5.9 Banking Institutions
Schedule 5.11 Material Adverse Changes Affecting TSP
Schedule 5.12 Legal Proceedings
Schedule 5.13 Insurance
Schedule 5.14 Contracts
Schedule 5.15 Directors and Officers
Schedule 5.16 Employees and Employment Agreements
Schedule 5.17 Employee Benefit Plans
Schedule 5.19 Seller's Required Consents
Schedule 6.3 Permitted Distributions and Payments by Partnership
Schedule 6.6 Agreements for Disposition of Assets, Etc.
Schedule 7.4 Purchaser's Required Consents
Schedule 9.6 Consents Conditional to Seller's Obligations
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EXHIBIT 99.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the 22nd day of September 1995, between ▇▇▇▇▇▇ BROADCASTING SYSTEM,
INC., a Georgia corporation (the "Seller"), and LMC SOUTHEAST SPORTS, INC., a
Colorado corporation (the "Purchaser").
WITNESSETH:
WHEREAS, the Seller is the owner of all of the issued and outstanding
shares of capital stock of ▇▇▇▇▇▇ Sports Programming, Inc., a Georgia
corporation ("TSP"); and
WHEREAS, the Seller desires to sell and the Purchaser desires to
purchase all of the capital stock of TSP, all pursuant to the terms and
conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the premises and the
mutual promises and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
ARTICLE I - DEFINITIONS
1.1 DEFINITIONS. For purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
"Activities Agreement" means the Agreement Restricting Activities in
the form of EXHIBIT A to be executed and delivered at the Closing by the Seller,
Time Warner Inc. and the Partnership.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person, with
"control" for such purpose meaning the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or voting interests,
by contract or otherwise.
"Business Day" means any day other than Saturday, Sunday or a day on
which banking institutions in Denver, Colorado, Atlanta, Georgia or New York,
New York are required or authorized to be closed.
"Closing" means the closing of the sale of the Shares contemplated
hereby.
"Closing Date" means the date on which the Closing occurs.
"Code" means the Internal Revenue Code of 1986, as amended.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" means, as to TSP, any other Person that is a member
of a controlled group with TSP under Section 414(b) or (c) of the Code.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States of America.
"Governmental Authority" means (i) the United States of America, (ii)
any state, commonwealth, territory or possession of the United States of
America and any political subdivision thereof (including counties,
municipalities and the like), (iii) any foreign (as to the United States of
America) sovereign entity and any political subdivision thereof or (iv) any
agency, authority or instrumentality of any of the foregoing, including any
court, tribunal, department, bureau, commission or board.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the regulations promulgated thereunder.
"Legal Requirement" means any statute, ordinance, code, law, rule,
regulation, order or other requirement, standard or procedure enacted, adopted
or applied by any Governmental Authority, including judicial decisions applying
common law or interpreting any other Legal Requirement.
"Loan Agreement" means the Loan Agreement dated as of March 1, 1995,
among The Toronto-Dominion Bank, as Issuing Bank, Toronto Dominion (Texas),
Inc., for itself and as Administrative Agent for the Banks named therein, and
First Union National Bank of Georgia, as it may be modified, amended or
restated from time to time.
"Management Agreement" means the Management Agreement dated May 3,
1990, between the Partnership and TSP, as in effect as of the date of this
Agreement.
"Net Partnership Value" means the amount equal to the sum, calculated
as of the Closing Date, of (a) $153,717,600, plus (b) the excess, if any, of
Specified Current Assets over Specified Current Liabilities, minus (c) the
total outstanding balance of all Partnership Debt, minus (d) the excess, if
any, of Specified Current Liabilities over Specified Current Assets.
"Partnership" means SportSouth Network, Ltd., a Delaware limited
partnership formed pursuant to the Partnership Agreement.
"Partnership Agreement" means the Limited Partnership Agreement of the
Partnership dated as of May 3, 1990, among the Seller, the Purchaser (then
known as TCI Southeast Sports, Inc.) and Scripps ▇▇▇▇▇▇ Production, Inc., as
supplemented or amended by a letter agreement dated May 3, 1990, a letter
agreement between the Partnership and Wometco Cable Corp. dated
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August 3, 1990, an Amendment to Limited Partnership Agreement dated as of
December 2, 1994 and an Amendment to Limited Partnership Agreement dated as of
February 28, 1995.
"Partnership Debt" means, without duplication, the sum of (i) all
indebtedness or liability for or on account of money borrowed by, for or on
account of the Partnership for which the Partnership is liable for payment,
including unpaid principal and interest and any other charges owed to a lender,
(ii) all obligations of the Partnership (including principal and accrued
interest) evidenced by notes or similar instruments and (iii) all obligations
of the Partnership under leases that are accounted for by the Partnership as
capitalized lease obligations.
"Partnership Interest" means all of TSP's rights, title and interest
in, to and under the Partnership Agreement (whether as a general partner or a
limited partner), including rights to receive profits, income, surplus,
capital, distributions and other payments, in cash or in kind, and to share in
the assets of the Partnership upon dissolution and liquidation, and any and all
other rights and interests comprising or appurtenant to TSP's interest in the
Partnership.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means any human being or any corporation, partnership, trust,
unincorporated organization, association, limited liability company,
Governmental Authority or other entity.
"Pledged Partnership Interest" means all the Partnership Interest
owned by TSP.
"Pledged Shares" means all the Shares.
"Security Documents" means, as applicable, the Pledge Agreements and
the Negative Pledge Agreement described in Section 9.3 which are to be
delivered to provide security for payment of the Note.
"Shares" means all the issued and outstanding shares of capital stock
of TSP.
"Specified Current Assets" means, as of any date of determination and
without duplication, the current assets of the Partnership. The amount of any
Specified Current Asset will be the amount that would be required to be
reflected in a balance sheet of the Partnership if such balance sheet were to
be prepared as of the date of determination.
"Specified Current Liabilities" means, as of any date of determination
and without duplication, the current liabilities of the Partnership, excluding
any Partnership Debt. The amount of any Specified Current Liability will be
the amount that would be required to be reflected in a balance sheet of the
Partnership if such balance sheet were to be prepared as of the date of
determination.
"Taxes" or "Tax" means all net income, capital gains, gross income,
gross receipts, sales, use, ad valorem, franchise, profits, license,
withholding, payroll, employment, excise, severance,
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stamp, occupation, premium, property or windfall profit taxes, customs duties
and other taxes, fees, assessments or charges of any kind whatsoever, together
with any interest and any penalties, additions to tax or additional amounts for
which TSP may be liable, either severally or jointly with any other Person.
1.2 OTHER DEFINITIONS. The following terms are defined in the
Sections indicated:
Term Section
---- -------
Control Right Notice 4.13(f)
Final Report 2.3(b)
Form 4.12
Merger Agreement 3.1
Multiemployer Plans 5.17(a)
Note 2.2(a)
Plan 5.17(a)
Preliminary Report 2.3(a)
Preliminary Net Partnership Value 2.3(a)
Preliminary Purchase Price 2.2(a)
Proceeding Notice 4.13(f)
Purchase Price 2.2
338(h)(10) Election 4.12
TSP Financial Statements 5.8
1.3 GENERAL. Terms used with initial capital letters will have
the meaning specified, applicable to both singular and plural forms, for all
purposes of this Agreement. Pronouns of any gender will be deemed to include
references to masculine, feminine and neuter genders. The word "include" and
derivatives of that word are used in this Agreement in an illustrative sense
rather than a limiting sense.
1.4 ACCOUNTING TERMS. All accounting terms used in this
Agreement, unless otherwise specifically provided in this Agreement, will have
the meanings ascribed to them under GAAP (including official interpretations by
the Financial Accounting Standards Board), applied on a basis consistent with
that applied (a) in the case of the TSP Financial Statements, in the
preparation of the TSP Financial Statements as of and for the year ended
December 31, 1994, and (b) in the case of financial statements of the
Partnership, in the preparation of the audited financial statements of the
Partnership as of and for the year ended December 31, 1994.
ARTICLE II - SALE AND PURCHASE OF SHARES
2.1 SALE OF SHARES AT THE CLOSING. Subject to the terms and
conditions set forth in this Agreement, at the Closing, the Seller will sell,
assign, transfer, convey and deliver to the Purchaser, and the Purchaser will
purchase and receive from the Seller, all of the Shares free and clear of any
and all restrictions, claims, liens, charges, encumbrances, security interests
or adverse
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claims whatsoever (other than restrictions under applicable laws, restrictions
under the Partnership Agreement and restrictions under agreements to which the
Partnership is a party that are described in Schedule 5.5(a)).
2.2 PURCHASE PRICE. As consideration for all of the Shares to be
acquired by the Purchaser pursuant to Section 2.1, the Purchaser will pay the
Seller an aggregate amount equal to 44% of the Net Partnership Value (the
"Purchase Price"), payable as follows:
(a) At the Closing, the Purchaser will deliver to the
Seller a Promissory Note in the form of EXHIBIT B (the "Note") in the principal
amount (the "Preliminary Purchase Price") equal to 44% of the Preliminary Net
Partnership Value, as defined in Section 2.3(a).
(b) The balance of the Purchase Price, if any, payable to
the Seller pursuant to Section 2.3(d) after giving effect to the final
determination of the Net Partnership Value will be paid by the Purchaser, at
the Purchaser's election, either (i) by wire transfer, to the account
designated by the Seller, of immediately available Federal funds in such
amount, together with interest on such amount from the Closing Date to the date
of payment at the rate per annum provided in the Note, or (ii) by delivery
(against delivery by the Seller of the Note delivered at the Closing) of an
amended and restated Note identical to the Note delivered at the Closing but
reflecting the higher Purchase Price (modified, if necessary, to reflect
payments of principal or interest after the Closing but before delivery of such
amended and restated Note), in either case on the date prescribed by Section
2.3. In the event the Purchaser elects to pay the balance of the Purchase
Price by execution and delivery of an amended and restated Note, the Purchaser
will, as a condition to its right to make payment in such manner, deliver to
the Seller (A) an opinion of counsel, which counsel is reasonably acceptable to
the Seller, substantially in the form of the opinion described in Section
9.3(e) and (B) such instruments or documents as may reasonably be required by
the Seller to assure the continuation of the Seller's first priority security
interest in the Pledged Partnership Interest (if such security interest
previously shall have been granted to the Seller) and in the Pledged Shares.
Concurrently with the delivery to the Seller of such amended and restated Note,
such opinion and such other instruments or documents, the Seller will deliver
to the Purchaser the Note delivered to the Seller at the Closing.
2.3 DETERMINATION OF NET PARTNERSHIP VALUE. Preliminary and final
determinations of the Net Partnership Value will be made as follows:
(a) Prior to the Closing, the Seller will deliver to the
Purchaser a report (the "Preliminary Report"), prepared in good faith and on a
reasonable basis, setting forth in reasonable detail the preliminary
determination of the Net Partnership Value (the "Preliminary Net Partnership
Value"), estimated as of the Closing Date (or as of any other date agreed by
the Seller and the Purchaser), accompanied by appropriate documentation
supporting such determination, including an unaudited estimated balance sheet
of the Partnership as of the Closing Date, a schedule setting forth advance
payments and deposits made to or by the Partnership, accounts receivable
information (showing sums due and their respective aging as of the last
regularly scheduled cutoff date) and a schedule setting forth the unpaid amount
of all Partnership
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Debt. The Preliminary Net Partnership Value will be the basis for calculation
of the Preliminary Purchase Price payable to the Seller pursuant to Section
2.2(a).
(b) Within 60 days after the Closing, the Purchaser will
deliver to the Seller a report (the "Final Report"), prepared in good faith and
on a reasonable basis, setting forth in reasonable detail the final
determination of the Net Partnership Value, accompanied by appropriate
documentation supporting such determination, including an unaudited balance
sheet of the Partnership as of the Closing (which balance sheet, except for the
omission of footnotes, will be prepared in accordance with GAAP) and any other
document that was required to be included with the Preliminary Report to the
extent any change to the information included in such document has occurred.
For purposes of the calculation of the Net Partnership Value to be included in
the Final Report, the dollar amount set forth in clause (a) of the definition
of Net Partnership Value included in Section 1.1 will be used.
(c) Within 30 days after receipt of the Final Report, the
Seller will give the Purchaser written notice of the Seller's objections, if
any, to the Final Report. If the Seller does not give any such notice within
that 30-day period, the determination of the Net Partnership Value set forth in
the Final Report will be conclusive and binding on the parties. If the Seller
gives notice of any objection, the Seller and the Purchaser will negotiate in
good faith to resolve all issues in dispute for a period of 15 days following
receipt of such notice of objection. If the parties resolve all disputed
issues within such 15-day period, the Purchaser will promptly thereafter
prepare and deliver to the Seller a statement reflecting the final agreed upon
determination of Net Partnership Value. If at the end of such 15-day period,
all disputed issues are not resolved, all issues remaining in dispute will be
submitted for determination by a nationally recognized accounting firm selected
by the Purchaser and the Seller, which firm is not the principal independent
accountant for the Purchaser, the Seller or any Affiliate of the Purchaser or
the Seller, who will be directed to resolve the disputed issues regarding Net
Partnership Value within 30 days after submission to it and whose determination
will be conclusive and binding on the parties. The Seller and the Purchaser
will bear equally the fees and expenses payable to such firm in connection with
its determination.
(d) After the final determination of the Net Partnership
Value, the Seller will pay to the Purchaser the amount by which the Preliminary
Purchase Price exceeds the Purchase Price, or the Purchaser will pay to the
Seller the amount by which the Purchase Price exceeds the Preliminary Purchase
Price. Any payment required to be made by either party to the other pursuant
to this paragraph (d) will be paid as follows within three Business Days after
the final determination of Net Partnership Value: (i) if the Seller is
required to pay the Purchaser, the Seller will pay the required amount, at the
Seller's election, either (A) by wire transfer, to the account designated by
the Purchaser, of immediately available Federal funds in such amount, together
with interest on such amount from the Closing Date to the date of payment at
the rate per annum provided in the Note, or (B) by delivery to the Purchaser of
the Note delivered at the Closing, in which event the Purchaser will execute
and deliver to the Seller (x) an amended and restated Note identical to the
Note delivered at the Closing but reflecting the lower Purchase Price
(modified, if necessary, to reflect payments of principal or interest after the
Closing but before
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delivery of such amended and restated Note), (y) if requested by the Seller and
at the Seller's expense, an opinion of counsel, which counsel is reasonably
acceptable to the Seller, substantially in the form of the Opinion described in
Section 9.3(e) and (z) such other instruments or documents as may reasonably be
required by the Seller to assure the continuation of the Seller's first
priority security interest in the Pledged Partnership Interest (if such
security interest previously shall have been granted to the Seller) and in the
Pledged Shares; and (ii) if the Purchaser is required to pay the Seller, the
required amount will be paid as provided in Section 2.2(b).
ARTICLE III - CLOSING
3.1 CLOSING DATE. Subject to the fulfillment of the conditions
precedent specified in Articles VIII and IX of this Agreement (or the waiver
thereof as provided therein), the purchase and sale of the Shares will be
consummated at the Closing, which will be held at 10:00 a.m. prevailing Eastern
time at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP on the same date as the closing of
the transactions contemplated by the Agreement and Plan of Merger dated as of
September 22, 1995, the parties to which include Time Warner Inc. and the
Seller (the "Merger Agreement"), or, if all the conditions to the parties'
obligations set forth in Sections 8.4, 8.6, 9.4, and 9.6 of this Agreement have
not been satisfied on or prior to such date, on the third Business Day after
all such conditions have been satisfied or waived, or on such other date or at
such other time as the Purchaser and the Seller may mutually agree.
3.2 DELIVERIES BY THE SELLER. At the Closing, the Seller will
deliver or cause to be delivered to the Purchaser, in form and substance
satisfactory to the Purchaser, the following:
(a) stock certificates representing the Shares, which
certificates will be duly endorsed in blank for transfer or accompanied by
properly executed stock powers; and
(b) all of the documents, instruments, certificates and
opinions required to be delivered under Article VIII of this Agreement.
3.3 DELIVERIES BY THE PURCHASER. At the Closing, the Purchaser
will deliver or cause to be delivered to the Seller the following:
(a) the Note, duly executed by the Purchaser; and
(b) all of the documents, instruments, certificates and
opinions required to be delivered under Article IX of this Agreement.
ARTICLE IV - ADDITIONAL AGREEMENTS
4.1 CONFIDENTIALITY. Prior to the Closing, the Seller will
provide to the Purchaser and the Purchaser may provide to the Seller
information which may be deemed by the party providing such information to be
confidential. Each party will not use or disclose any information provided
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to it by another party to this Agreement or such party's Affiliates and
designated in writing by such disclosing party or Affiliate as confidential for
a purpose other than in connection with the transactions contemplated by this
Agreement, except that the obligations contained in this Section 4.1 will not
in any way restrict the rights of any party or other Person to use or disclose
information that: (a) was lawfully known to such party prior to the disclosure
by the other party; (b) is or becomes generally available to the public other
than by breach of this Agreement; (c) is or becomes available to such party in
its capacity as a partner of the Partnership, subject to such limitations on
use or disclosure as may be imposed by the Partnership Agreement and each other
agreement among the partners in the Partnership; or (d) otherwise becomes
lawfully available to a party to this Agreement on a non-confidential basis
from a third party who is not under an obligation of confidentiality to the
other party to this Agreement.
4.2 ACCESS TO PREMISES, RECORDS, PROPERTIES AND EMPLOYEES. During
the period from the date of this Agreement to the Closing, the Seller will
cause TSP and, to the extent that TSP has the power to cause the Partnership to
take such actions, the Partnership to permit the Purchaser and its
representatives, agents, counsel and accountants to have access at reasonable
times to the premises, employees, business, properties, assets, financial
statements, contracts, books, records and working papers of, and other relevant
information pertaining to, TSP and the Partnership and to cause TSP's officers
and employees to furnish to the Purchaser and its representatives, agents,
counsel and accountants such financial and operating data and other information
with respect to the business, properties and assets of TSP and the Partnership
as the Purchaser may reasonably request and as is reasonably available to TSP
or the Partnership.
4.3 PUBLICITY. During the period from the date of this Agreement
to the Closing, each party will obtain the approval of the other party prior to
issuing any press release, written public statement or announcement with
respect to the transactions contemplated by this Agreement; provided, however,
that the provisions of this Section 4.3 will not prohibit (a) any party from
making any such release, statement or announcement if, upon advice of counsel
and with prior notice to the nondisclosing party, such party determines that it
is required to do so under any applicable Legal Requirement, and (b) the Seller
or the Purchaser from making such disclosure as may be required to secure any
approval that may be required in connection with the transactions contemplated
hereby, including any shareholder approval.
4.4 APPROVALS AND CONSENTS. Each party will cooperate with the
other to give such notices and will use its best efforts to obtain as soon as
possible all approvals, consents and waivers of any Governmental Authority or
other Person required or deemed necessary for consummation of the transactions
contemplated by this Agreement.
4.5 COOPERATION OF THE PARTIES. Subject to the provisions hereof,
the parties will cooperate with each other and with their respective counsel
and accountants in connection with any actions required to be taken as part of
or as a condition to their respective obligations under this Agreement.
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14
4.6 EXPENSES. Except as may otherwise be provided in this
Agreement, each party will pay all fees and expenses, including counsel and
accountants' fees, incurred by such party in connection with this Agreement and
any transaction contemplated by this Agreement. Any transfer taxes due and
payable upon delivery and transfer of the Shares by the Seller to the Purchaser
will be paid by the Purchaser.
4.7 BROKERS. Each party hereby represents and warrants to the
other party that no broker, finder or other financial consultant has acted on
its behalf in connection with this Agreement or the transactions contemplated
by this Agreement. Each party will indemnify the other party and hold and save
the other party harmless from any claim or demand for commissions or other
compensation by any broker, finder, financial consultant or similar agent
claiming to have been employed by or to have acted on behalf of such
indemnifying party in connection with this Agreement or the transactions
contemplated by this Agreement and will bear the costs and expenses, including
legal fees, incurred by the other party in defending against any such claim.
4.8 ACCESS TO CERTAIN RECORDS FOLLOWING CLOSING. The Purchaser
will permit the Seller and its representatives, counsel and accountants to have
access at reasonable times, following the Closing, to the financial books and
records and, to the extent necessary, employees and representatives of TSP and
the Partnership with respect to periods ending on or before the Closing Date to
the extent required by the Seller: (a) in connection with any tax or financial
audit of the Seller for the period during which TSP was a part of a
consolidated group with the Seller for tax purposes; (b) to make or cause to be
made any consolidated or unitary tax filing for the period during which TSP was
a part of a consolidated group with the Seller for tax purposes; (c) to verify
any claim of indemnification by the Purchaser hereunder; or (d) to verify any
adjustment to the Purchase Price based on the Final Report.
4.9 SERVICES AGREEMENT. Subject to the performance by TSP of its
obligations thereunder, the Seller will cause ▇▇▇▇▇▇ Cable Network Sales, Inc.
to provide services to TSP in accordance with the agreement dated August 22,
1994, a copy of which is attached as EXHIBIT C, until the first anniversary of
the Closing Date or until notice of termination is given by TSP, whichever
first occurs, at which time the obligations of ▇▇▇▇▇▇ Cable Network Sales,
Inc., thereunder will terminate.
4.10 HSR ACT FILINGS. As soon as practicable after the execution
of this Agreement, but in any event no later than 30 days after such execution,
the Seller and the Purchaser each will complete and file, or cause to be
completed and filed, any notification and report required to be filed under the
HSR Act with respect to the transactions contemplated hereby and will request
early termination of the applicable waiting period. Each of the parties will
cooperate to prevent inconsistencies between their respective filings and will
furnish to each other such necessary information and reasonable assistance as
the other may reasonably request in connection with its preparation of
necessary filings or submissions under the HSR Act. Notwithstanding anything
to the contrary in this Agreement, if the Purchaser, in its sole opinion,
considers a request from
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a Governmental Authority for additional data and information in connection with
the HSR Act to be unduly burdensome, the Purchaser may terminate this
Agreement.
4.11 RESTRICTIONS ON ACTIVITIES; TELECAST RIGHTS AGREEMENTS. At
the Closing, the Seller will execute and deliver the Activities Agreement. The
Seller also will cause Atlanta Hawks Limited Partnership and Atlanta National
League Baseball Club, Inc. to execute and deliver at the Closing Telecast
Rights Agreements conforming in all material respects to the terms set forth in
EXHIBIT D and EXHIBIT E, respectively. The Purchaser will cause the
Partnership to execute and deliver at the Closing Telecast Rights Agreements
with Atlanta Hawks Limited Partnership and Atlanta National League Baseball
Club, Inc. conforming in all material respects to the terms set forth in
EXHIBIT D and EXHIBIT E, respectively.
4.12 SECTION 338(H)(10) ELECTION. The Purchaser and the Seller
will make a timely and effective joint election (the "338(h)(10) Election") for
TSP under Section 338(h)(10) of the Code and similar state statutes with
respect to the purchase of the Shares. Within 30 days after the Purchase Price
is finally determined, but in no event later than 210 days following the
Closing Date, the Purchaser will deliver to the Seller a completed and executed
Internal Revenue Service Form 8023-A and corresponding state forms and the
required schedules thereto (the "Form") providing for the 338(h)(10) Election.
Provided that the information on the Form is, in the reasonable determination
of the Seller, correct and complete in all material respects, the Seller will,
within 30 days after the receipt of the Form from the Purchaser, execute the
Form and deliver the Form to the Purchaser. If any change or supplement to the
Form is required, the Seller and the Purchaser promptly will agree on such
changes. Purchaser will timely file the Form, and any required supplements
thereto, and will provide copies of the Form and assurance to the Seller that
it has done so.
4.13 OTHER TAX MATTERS.
(a) The Seller will be liable for and will indemnify,
defend and hold harmless the Purchaser, TSP and each of their Affiliates
against and from all unpaid federal, foreign, state or local Taxes for which
TSP may be liable for all taxable periods ending on or before the Closing Date,
and, with respect to any taxable period beginning before and ending after the
Closing Date, the portion of such period ending on and including the Closing
Date. The Seller will be entitled to any refund of Taxes of TSP received for
such periods.
(b) The Purchaser will be liable for and will indemnify,
defend and hold harmless the Seller and each of its Affiliates against and from
all unpaid federal, foreign, state or local Taxes for which TSP may be liable
for all taxable periods beginning after the Closing Date, and, with respect to
any taxable period beginning before and ending after the Closing Date, the
portion of such period beginning after the Closing Date. The Purchaser will be
entitled to any refund of Taxes of TSP for such periods.
(c) For purposes of Sections 4.13(a) and 4.13(b),
whenever it is necessary to determine the liability for Taxes of TSP for a
portion of a taxable year or period that begins
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before and ends after the Closing Date, the determination of the Taxes of TSP
for the portion of the year or period ending on, and the portion of the year or
period beginning after, the Closing Date will be determined by assuming that
TSP had a taxable year or period which ended at the close of the Closing Date,
except that exemptions, allowances or deductions that are calculated on an
annual basis, such as the deduction for depreciation, will be apportioned on a
time basis.
(d) The Seller will be responsible for preparing and
filing all returns or reports which relate to any Taxes for which TSP may be
liable for any taxable period ending on or before the Closing Date. All income
and deductions of TSP for the period ending on the Closing Date will be
included in the consolidated federal income tax return and in any consolidated
or combined foreign, state or local income tax return which includes TSP and is
required to be filed by the Seller after the Closing Date and the Seller will
pay all federal, state, local and foreign income Taxes due for the periods
covered by such returns.
(e) The Purchaser will be responsible for preparing and
filing all returns and reports which relate to any Taxes for which TSP may be
liable for any taxable period ending after the Closing Date. The Purchaser and
its Affiliates will cause TSP to include the results of its operations in any
separate (unconsolidated) state, foreign or local income Tax return for any
taxable period beginning before and ending after the Closing Date. Subject to
indemnification by the Seller under Section 4.13(a), the Purchaser will pay, or
cause to be paid, all state, foreign or local income Taxes shown as due on any
such return with respect to TSP.
(f) In the event the Seller, the Purchaser or any of
their respective Affiliates receives notice (a "Proceeding Notice") of any
examination, claim, adjustment or other proceeding with respect to the
liability of TSP for Taxes for any period for which the other party is or may
be liable under this Section 4.13, the party receiving such notice will notify
the other party in writing thereof (a "Control Right Notice") no later than 10
days after the receipt by such party or any of its Affiliates of the Proceeding
Notice. As to any such Taxes for which a party is or may be liable under this
Section 4.13, such party will be entitled at its expense to control the contest
of such examination, claim, adjustment or other proceeding and, if it so
elects, to pay or otherwise settle any liability for Taxes claimed therein or
arising therefrom, provided it notifies the other party in writing that it
desires to exercise such control no later than the earlier of (i) 30 days after
receipt of the Control Right Notice or (ii) 10 days before the date TSP is
required to respond to the Proceeding Notice. The parties will cooperate with
each other and with their respective Affiliates in the negotiation and
settlement of any proceeding described in this Section. Each party will
provide, or cause to be provided, to the other party any authorizations
reasonably necessary to permit such party to control any proceedings which such
party is entitled to control pursuant to this Section.
(g) If the Seller, the Purchaser or any of their
respective Affiliates receives notice of any examination, claim, adjustment or
other proceeding with respect to any matter the resolution of which reasonably
could be expected to affect the liability of any of them for Taxes for any
period for which any of them are liable for Taxes in respect of TSP, the party
receiving such notice will notify the other party in writing no later than 20
days after receipt of such notice.
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The provisions of this Section 4.13(g) will not, however, affect any of the
rights or obligations of the parties under Section 4.13(f), provided that the
party assuming control of the defense of an examination, claim, adjustment or
other proceeding pursuant to Section 4.13(f) cooperates with the party entitled
to receive notice pursuant to this Section 4.13(g), to the extent that such
cooperation is practicable and not detrimental to the party so assuming
control.
(h) Except as otherwise provided in this Section 4.13,
any amount to which a party is entitled under this Section 4.13 will be
promptly paid to such party by the party obligated to make such payment
following written notice to the party so obligated that such amount is due
under this Agreement. The parties will provide each other with such
cooperation and information as they may reasonably request of each other in
preparing or filing any return, amended return, or claim for refund, in
determining a liability or a right of refund, or in conducting any audit or
other proceeding, in respect of Taxes imposed on the parties or their
respective Affiliates. Each party will provide, or cause to be provided, to
the other party copies of all correspondence received from any taxing authority
by such party or any of its Affiliates in connection with the liability of TSP
for Taxes for any period for which the other party may be liable under this
Section 4.13. Each party and its Affiliates will preserve and retain copies of
all returns, schedules, work papers, electronic and photographic records and
all material records or other documents relating to any such returns, claims,
audits or other proceedings until the expiration of the statutory period of
limitations (including extensions) of the taxable periods to which such
documents relate until the final determination of any payments which may be
required with respect to such periods under this Agreement and will make such
documents available to the other party and its officers, employees and agents,
upon reasonable notice and at reasonable times, it being agreed that such
representatives will be entitled to make copies of any such books and records
as they shall deem necessary. Each party will permit representatives of the
other party to meet with appropriate representatives of such party or TSP on a
mutually convenient basis to enable such representatives to obtain additional
information and explanations of any document provided pursuant to this Section.
Each party will make available to the representatives of the other party
sufficient work space and facilities to perform the activities described in the
two preceding sentences. Any information obtained pursuant to this Section
will be kept confidential as provided in Section 4.1, except as otherwise may
be necessary in connection with the filing of returns or claims for refund or
in conducting any audit or other proceeding. Each party will provide the
cooperation and information required by this Section at its own expense.
(i) Anything in this Agreement to the contrary
notwithstanding, the representations and warranties and the obligations of the
parties set forth in this Section 4.13 will remain in effect without limitation
as to time or amount.
4.14 CHANGE OF TSP'S NAME. The Seller will take or cause to be
taken at or prior to the Closing all such actions as may be necessary to change
the name of TSP to a name which does not include "▇▇▇▇▇▇." The Purchaser
acknowledges and agrees that after the Closing TSP will have no right to the
name "▇▇▇▇▇▇."
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4.15 TSP EMPLOYEES. The Purchaser will take or cause to be taken
such action as may be required so that each person who is an employee of TSP
immediately prior to the Closing and such person's eligible dependents (i) will
be entitled to participate in the Purchaser's employee welfare benefit plans to
the same extent as similarly situated employees of the Purchaser and their
eligible dependents, (ii) will receive credit for service with TSP for all
purposes under such plans and (iii) will not be subject to any waiting period
or limitation on benefits for pre-existing conditions, in each case to the
extent such plans so permit.
4.16 BEST EFFORTS; FURTHER ASSURANCES. Each of the Seller and the
Purchaser will use its best efforts (i) to obtain, as soon as possible, all
consents or approvals required to be obtained from any Person with respect to
the transactions contemplated by this Agreement and (ii) to take or cause to be
taken all actions and to do or cause to be done by any lawful means all things
necessary to consummate and make effective the transactions contemplated by
this Agreement. Without limiting the generality of the foregoing, the parties
will use their best efforts to obtain any consent or approval of Scripps ▇▇▇▇▇▇
Production, Inc. and of the Banks (as defined in the Loan Agreement) required
to be obtained with respect to the pledge of the Pledged Partnership Interest
as security for the Note. Anything in this Agreement to the contrary
notwithstanding, if such consents or approvals to the pledge of the Pledged
Partnership Interest are not obtained, the Seller agrees, as provided in
Section 9.3(b), that the execution and delivery to the Seller of the Negative
Pledge Agreement described in that Section will be sufficient to satisfy the
condition described in Section 9.3(b). If the consent of Scripps ▇▇▇▇▇▇
Production, Inc. or the Majority Banks to the pledge of the Pledged Partnership
Interest is not obtained before the Closing, the Seller and the Purchaser will
continue to use their best efforts to obtain such consent and, if and when such
consent is obtained, the Seller and the Purchaser will execute and deliver the
Pledge Agreement in the form of Exhibit I. From and after the Closing Date,
the Seller, without additional compensation, will take such further action and
will execute such additional agreements as may be reasonably requested by the
Purchaser fully to vest in the Purchaser all right, title and interest in and
to the Shares free and clear of any lien, claim or other encumbrance.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Purchaser to enter into this Agreement and to
consummate the transactions contemplated hereby, the Seller hereby represents
and warrants that the following are true and correct as of the date hereof:
5.1 VALIDITY. This Agreement constitutes, and, when executed and
delivered, each other instrument or agreement to be executed and delivered by
the Seller pursuant to this Agreement will constitute, the legal, valid and
binding obligation of the Seller, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
generally the enforcement of creditors' rights and except as the same may be
limited by general principles of equity.
5.2 CORPORATE STATUS, ETC. Each of the Seller and TSP is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Georgia. TSP
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does not have any direct or indirect subsidiaries and does not own any shares
of capital stock of any corporation or any interest in the ownership or
management of any other Person or any other material asset other than (a)
assets permitted to be distributed by TSP to the Seller before the Closing
pursuant to Section 6.3 and (b) TSP's 44% interest (43% as a general partner
and 1% as a limited partner) in the Partnership, which in turn owns all of the
issued and outstanding shares of capital stock of Sports Network Music, Inc., a
Georgia corporation, and Satellite Sports Music, Inc., a Georgia corporation.
TSP has full corporate power and authority and possesses all material rights,
privileges, franchises, licenses, permits, authorizations and approvals,
governmental or otherwise, necessary to entitle it to own or lease its
properties and assets and to carry on its business as and in the places where
such properties or assets are now owned, leased or operated and such business
is conducted. TSP is qualified to transact business as a foreign corporation
in the states listed on Schedule 5.2 and TSP is not required to be qualified to
do business in any other jurisdiction where the failure to be so qualified
would have a material adverse effect on the business or financial condition of
TSP.
5.3 AUTHORITY; NO CONFLICT.
(a) The Seller has the full corporate power and authority
to execute and deliver this Agreement and each other instrument or agreement to
be executed and delivered by the Seller pursuant to this Agreement, to perform
its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby, and all corporate action necessary on the part
of the Seller to execute and deliver this Agreement and each other instrument
or agreement to be executed and delivered by the Seller pursuant to this
Agreement, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby has been taken.
(b) Subject to receipt of those consents described in
Schedule 5.19 and Schedule 7.4, the execution and delivery of this Agreement
and each other instrument or agreement to be executed and delivered by the
Seller pursuant to this Agreement, the performance by the Seller of its
obligations hereunder and thereunder, and the consummation by the Seller of the
transactions contemplated hereby and thereby will not result in any breach of,
or a default or acceleration under (or give any Person the right to accelerate
the performance of the Seller or TSP under), or require the consent of any
Person under, any mortgage, material agreement, lease, indenture, or other
material instrument, order, judgment or decree to which the Seller or TSP is a
party or by which the Seller or TSP or their respective properties or assets
may be bound or affected or violate in any material respect any applicable
Legal Requirement.
(c) The Seller has furnished or, prior to the Closing,
will furnish, the Purchaser with a complete and correct copy of the Articles of
Incorporation, as amended to date, of TSP, certified by the Secretary of State
of the State of Georgia, and a complete and correct copy of the Bylaws of TSP,
as presently in effect, certified by TSP's incumbent secretary.
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5.4 CAPITAL STRUCTURE.
(a) The authorized capital stock of TSP consists of 1,000
shares of $1.00 par value Common Stock of which 500 shares are issued and
outstanding. Such issued and outstanding shares constitute the Shares and are
the only issued and outstanding shares of capital stock of TSP. All of the
outstanding capital stock of TSP is duly and validly issued, fully paid and
non-assessable. No Person has any right of rescission or claim for damages
under federal or state securities laws with respect to the issuance of any
shares of capital stock of TSP previously issued. None of the outstanding
capital stock of TSP has been issued in violation of any preemptive or other
rights of its shareholders.
(b) There are no outstanding securities or other rights
which are convertible into or exchangeable for capital stock of or any other
equity interest in TSP, nor (except as provided in this Agreement) are there
any preemptive or other rights to subscribe for or to purchase, or any options
or warrants or agreements for the purchase or issuance (contingent or
otherwise) of, or any calls or other rights to purchase relating to, its
capital stock or any other equity interest in or securities convertible into or
exchangeable for its capital stock or such other equity interest. TSP is not
subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire or to register under any federal or state securities laws the
sale or transfer of any shares of its capital stock.
(c) Except for the agreements described in Schedule 5.19
under which consents are required, there is no agreement to which TSP or the
Seller is a party restricting the transfer of any shares of capital stock of
TSP.
(d) Any shares of capital stock of TSP which have been
purchased or redeemed by TSP have been purchased or redeemed in accordance with
all applicable Legal Requirements, including all federal and state securities
laws.
5.5 TITLE TO SHARES AND PARTNERSHIP INTEREST.
(a) The Seller has good, valid and marketable title,
beneficially, legally and of record, to the Shares, free and clear of any and
all restrictions, claims, liens, charges, encumbrances, security interests and
other adverse claims whatsoever (other than restrictions under applicable laws,
restrictions under the Partnership Agreement and restrictions under each
agreement to which the Partnership is a party that is described in Schedule
5.5(a)). Subject to obtaining the consents referred to in Schedule 5.19, the
Seller has full right, power and authority to sell, transfer and deliver the
Shares to the Purchaser; and at the Closing, the Seller will transfer to the
Purchaser good, valid and marketable title to the Shares, free and clear of any
and all restrictions, claims, liens, charges, encumbrances, security interests
or other adverse claims whatsoever (other than restrictions under applicable
laws, restrictions under the Partnership Agreement and restrictions under each
agreement to which the Partnership is a party that is described in Schedule
5.5(a)).
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(b) TSP has good, valid and marketable title,
beneficially, legally and of record, to the Partnership Interest, free and
clear of any and all restrictions, claims, liens, charges, encumbrances,
security interests or other adverse claims whatsoever, except rights of other
partners in the Partnership to the extent provided in the Partnership Agreement
and except as described in Schedule 5.5(b). The Partnership Agreement and the
Negative Pledge Agreement executed and delivered pursuant to the Loan Agreement
are the only instruments or agreements to which TSP is a party that restrict
the ability of TSP to transfer the Partnership Interest.
5.6 CORPORATE RECORDS. The stock records and minute books of TSP
furnished or to be furnished to the Purchaser by the Seller fully and
accurately reflect all issuances, transfers and redemptions of the capital
stock of TSP and correctly show the total number of shares of such capital
stock issued and outstanding on the date hereof.
5.7 TAXES.
(a) TSP has filed or will file when due all federal,
foreign, state and local income, franchise, sales, withholding, excise, real
and personal property, estimated, FICA, FUTA and other Tax returns, information
returns, reports and statements for all years and all periods (and portions
thereof) ending on or before the Closing Date. All such returns, reports and
statements were or will be prepared in all material respects in the manner
required by applicable Legal Requirements, and reflect or will reflect the
liability for Taxes of TSP in all material respects and all Taxes shown thereby
to be payable and all assessments received by TSP have been paid or will be
paid when due.
(b) TSP has withheld or will withhold amounts from its
employees and has filed or will file all federal, foreign, state and local
returns and reports with respect to employee income tax withholding and social
security and unemployment Taxes for all periods (or portions thereof) ended on
or before the Closing Date, in compliance in all material respects with the
provisions of applicable Legal Requirements.
(c) Except as disclosed in Schedule 5.7(c), there are no
material claims or investigations by any taxing authority pending or, to the
knowledge of the Seller or TSP, threatened for any past due Taxes and there has
been no waiver of any applicable statute of limitations or extension of time
for the assessment of any Tax.
(d) TSP has not made, signed or filed, nor will it make,
sign or file any consent under Section 341(f) of the Code with respect to any
taxable period ending at or before the Closing.
(e) Any and all tax sharing, tax allocation or similar
agreements executed between TSP and the Seller or between TSP and any other
member of the Seller's consolidated group that relate to any payments or
liability therefor by or to TSP with respect to Taxes will terminate as of the
Closing, and notwithstanding any provision contained in any such agreement, as
of the Closing, TSP will be relieved of any liability or obligation thereunder.
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5.8 FINANCIAL STATEMENTS. The Seller has delivered to the
Purchaser true and complete copies of the unaudited balance sheet of TSP as of
August 31, 1995 and the related statements of income and cash flows for the
eight- month period then ended (the "TSP Financial Statements"). The TSP
Financial Statements fairly present in all material respects the financial
position, results of operations and cash flows of TSP as of the date and for
the period indicated therein.
5.9 ACCOUNTS. Schedule 5.9 lists each bank and other institution
in which TSP maintains an account or safety deposit box, the account numbers
and the names of all Persons who are presently authorized to draw thereon or
have access thereto.
5.10 LIABILITIES. Except as reflected in the TSP Financial
Statements, TSP does not have any debt, liability or obligation, whether
accrued, absolute, contingent or otherwise, except obligations incurred as a
general partner or limited partner of the Partnership and its obligations as
general manager under the Management Agreement. As of the Closing, TSP will
not have any debt, liability or obligation, whether accrued, absolute,
contingent or otherwise, except obligations incurred as a general partner or
limited partner of the Partnership and its obligations as general manager under
the Management Agreement.
5.11 ABSENCE OF CHANGES. Except as set forth in Schedule 5.11,
since the date of the most recent balance sheet included in the TSP Financial
Statements, there has been no material adverse change in the business, assets,
liabilities, results of operation or financial condition of TSP, except any
such change occurring solely because of a material adverse change in the
business, assets, liabilities, results of operation or financial condition of
the Partnership.
5.12 LITIGATION AND PROCEEDINGS. Except as set forth in Schedule
5.12, there are no material actions, decrees, suits, counterclaims, claims,
proceedings or investigations, pending or, to the knowledge of the Seller or
TSP, threatened against, by or affecting TSP in, before or by any court or
other Governmental Authority or before any arbitrator, and no judgment, award,
order or decree of any nature has been rendered against TSP or with respect to
TSP by any arbitrator or by any court or other Governmental Authority which has
not been paid or discharged. TSP has not received notice that it has been
charged with and, to the knowledge of the Seller or TSP, TSP is not under
investigation concerning, any violation of any Legal Requirement.
5.13 INSURANCE. Schedule 5.13 is a complete list and description
(including the expiration date, premium amount and coverage thereunder) of all
policies of insurance and bonds presently maintained by, or providing coverage
for, TSP or any of its officers and directors (as officers and directors of
TSP), all of which are and will be maintained through the Closing Date, in full
force and effect, together with a complete list of all pending claims under any
such insurance policy or bond. All material terms, obligations and provisions
of each insurance policy and bond have been complied with; all premiums due
thereon have been paid; and no notice of cancellation with respect thereto has
been received. TSP has delivered or, prior to the Closing, will deliver to the
Purchaser (to the extent requested) true and complete copies of all insurance
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policies (to the extent requested) and bonds or the binders for all insurance
policies and bonds presently maintained by, or providing coverage for TSP or
any of its officers and directors (as officers and directors of TSP), or a
summary thereof.
5.14 CONTRACTS AND COMMITMENTS. Schedule 5.14 sets forth a brief
description of each written or oral contract, agreement, guaranty or commitment
involving aggregate consideration of more than $5,000 (i) to which TSP is a
party or by which TSP or any of its assets may be bound or affected and (ii) to
the knowledge of the Seller and TSP, to which the Partnership is a party or by
which the Partnership or any of its assets may be bound or affected. TSP and,
to the knowledge of the Seller and TSP, each other party thereto, has complied
in all material respects with the provisions of such contracts, agreements,
guaranties and commitments to which TSP is a party or by which TSP or any of
its assets may be bound or affected. A true and complete copy of each such
document has been or will be made available to the Purchaser for examination
prior to the Closing.
5.15 DIRECTORS AND OFFICERS. Schedule 5.15 lists all of the
present officers and directors of TSP.
5.16 EMPLOYEES. Except as set forth in Schedule 5.16, TSP has no
employees. The Partnership has no employees. TSP has provided the Purchaser
with copies of all written agreements currently in effect which have been
provided to TSP's employees relating to their employment or termination of
their employment. A list of such agreements is included in Schedule 5.16 and,
except for such agreements, there are no agreements with employees of TSP, oral
or written, relating to their employment or termination of their employment.
5.17 EMPLOYEE BENEFITS.
(a) Each bonus plan, stock option plan, deferred
compensation plan and employee benefit plan as defined in Section 3(3) of
ERISA, maintained by or on behalf of TSP or by any ERISA Affiliate (including
any plans which are "multiemployer plans" under Section 3(37)(A) of ERISA
("Multiemployer Plans")) and any defined benefit pension plan (as defined in
Section 3(35) of ERISA) terminated by TSP or any ERISA Affiliate within the
five plan years ending immediately before the Closing Date which covers or
covered any employee of TSP or any ERISA Affiliate or any predecessor of TSP or
any ERISA Affiliate is listed on Schedule 5.17 (all such plans listed on
Schedule 5.17 are sometimes collectively referred to herein as the "Plans" and
individually as a "Plan").
(b) Except as set forth on Schedule 5.17, with respect to
each Plan: (i) no litigation or administrative or other proceeding is pending
or threatened by a current or former employee of TSP; and (ii) each Plan has
been administered in all material respects in compliance with, and has been
restated or amended (except for amendments not yet required by law to be made)
so as to comply with, all applicable requirements of law including all
applicable requirements of ERISA, the Code and regulations promulgated
thereunder by the Internal Revenue Service and the United States Department of
Labor.
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(c) To the knowledge of the Seller and TSP, no Plan nor
any trustee, administrator or fiduciary thereof has at any time been involved
in any transaction relating to such Plan which would constitute a breach of
fiduciary duty under ERISA or a "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Code that would have a material
effect on such plan..
(d) Except as disclosed on Schedule 5.17 and except to
the extent required under the Consolidated Omnibus Budget Reconciliation Act of
1985, TSP does not have any obligation to provide, or liability for, health
care, life insurance or other benefits after termination of employment for
former or present employees of TSP or their dependents.
(e) With respect to any Plan, no fact or circumstance
exists which would constitute grounds for the Pension Benefit Guaranty
Corporation ("PBGC") or any successor to the PBGC to take any action under
Section 4042 of ERISA, and the PBGC has not previously taken any such action
which has resulted in, or reasonably might result in, any liability of TSP or
any ERISA Affiliate to the PBGC which would have a materially adverse effect on
the business of TSP. No Plan has been the subject of a "reportable event" as
defined in Section 4043 of ERISA as to which notice would be required to be
filed with the PBGC. Neither the Seller, TSP nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any material liability to the PBGC
(except for required premium payments, which payments have been made when due).
Neither the Seller, TSP nor any ERISA Affiliate has incurred any material
"accumulated funding deficiency," as defined in the Code or ERISA, as
applicable, whether or not waived, with respect to any Plan. Except as set
forth in Schedule 5.17, no Plan is funded through a welfare benefit fund within
the meaning of Section 419 of the Code.
(f) Except as set forth on Schedule 5.17, neither TSP nor
any ERISA Affiliate is subject to any withdrawal or partial withdrawal
liability under Section 4201 of ERISA or will become subject thereto as a
result of the transactions contemplated by this Agreement or any other
transaction consummated prior to the Closing Date. No Plan would be subject to
Section 4063 or 4064 of ERISA if a withdrawal from such Plan would occur. With
respect to each Multiemployer Plan sponsored by Seller, TSP or any ERISA
Affiliate: (i) no such Multiemployer Plan has been terminated or has been in
reorganization under ERISA so as to result, directly or indirectly, in any
liability, contingent or otherwise, of the Seller, TSP or any ERISA Affiliate
under Title I of ERISA, (ii) no proceeding has been initiated to terminate any
Multiemployer Plan under Section 4041A or 4042 of ERISA, and (iii) none of the
Seller, TSP or any ERISA Affiliate has received any written notification of any
event that would result in such Multiemployer Plan being terminated or
reorganized under ERISA. None of the Seller, TSP or any ERISA Affiliate has
engaged in, or is a successor or parent corporation to any entity that has
engaged in, a transaction described in Section 4069 of ERISA.
5.18 LABOR-RELATED MATTERS. TSP is not a party to any collective
bargaining agreement or agreement of any kind with any union or labor
organization.
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5.19 APPROVALS AND CONSENTS. Schedule 5.19 lists all consents or
other approvals necessary in order for the Seller and TSP to consummate the
transactions contemplated by this Agreement, including approvals and consents
of lenders, lessors, landlords and Governmental Authorities, other than
consents or approvals which have already been obtained. Anything in this
Agreement to the contrary notwithstanding, the Seller makes no representation
or warranty as to whether the consent of Scripps ▇▇▇▇▇▇ Production, Inc. is
required under the Partnership Agreement.
5.20 NO REPRESENTATIONS REGARDING THE PARTNERSHIP. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SELLER DISCLAIMS ANY AND ALL
REPRESENTATIONS AND WARRANTIES REGARDING THE PARTNERSHIP OR THE BUSINESS OR
OPERATIONS OF THE PARTNERSHIP.
5.21 DISCLOSURE. No representation or warranty by the Seller in
this Agreement, in any Schedule or Exhibit to this Agreement or in any
certificate or other document delivered pursuant to this Agreement contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact required to make the statements contained herein or
therein, in light of the circumstances in which they are made, not misleading
to the Purchaser, as a sophisticated purchaser with experience in the cable
television programming industry.
ARTICLE VI - CONDUCT OF BUSINESS OF TSP PENDING CLOSING
Except as otherwise expressly provided in this Agreement, the Seller
covenants and agrees that unless otherwise agreed by the Purchaser, between the
date hereof and the Closing Date the Seller will comply, will cause TSP to
comply and, to the extent that TSP has the power to do so, (which power TSP
will be obligated to exercise only to the extent consistent with its rights and
duties, fiduciary or otherwise, as a general partner and as the general manager
of the Partnership) to cause the Partnership to comply, with the following:
6.1 CONDUCT OF BUSINESS. Each of TSP and the Partnership will
carry on its business in the usual, regular and ordinary course in
substantially the same manner as heretofore conducted and preserve intact its
present business organization and assets.
6.2 ISSUANCE OF SECURITIES, ETC.
(a) TSP will not sell, issue, authorize or propose the
sale or issuance of, or purchase or propose the purchase of, any shares of
capital stock or other equity interest in, or any securities convertible into,
or any rights, warrants or options to acquire, any such shares or convertible
securities or other equity interest, or enter into any agreement with respect
to any of the foregoing.
(b) The Partnership will not sell, issue, authorize or
propose the sale or issuance of, or purchase or propose the purchase of, any
partnership or other equity interest in or any securities convertible into, or
any rights, warrants or options to acquire, any such
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partnership interest or convertible securities or other equity interest, or
enter into any agreement with respect to any of the foregoing.
6.3 DIVIDENDS OR DISTRIBUTIONS; CANCELLATION OF AFFILIATE PAYABLES.
(a) (i) No dividend, distribution or payment will be
declared or made in respect of the capital stock of TSP, except that TSP may
distribute to the Seller or otherwise sell or assign any assets other than the
Partnership Interest and TSP's rights under the Management Agreement, it being
acknowledged that such distribution, sale or assignment will not constitute a
default or breach of any of the Seller's representations, warranties, covenants
or agreements set forth in this Agreement, provided that TSP does not incur any
liability that will continue beyond the Closing to any recipient of any such
distribution, sale or assignment, and (ii) TSP will not, directly or
indirectly, redeem, purchase or otherwise acquire any of its capital stock or
enter into any agreement with respect to any of the foregoing.
(b) Except as described in Schedule 6.3, no distribution
or payment will be declared or made in respect of the interests in the
Partnership and the Partnership will not, directly or indirectly, redeem,
purchase or otherwise acquire any interest in the Partnership or enter into any
agreement with respect to any of the foregoing.
(c) At or prior to the Closing, the Seller will cancel or
cause to be cancelled any obligations of TSP owed to the Seller or any
Affiliate of the Seller.
6.4 AMENDMENT OF CHARTER; CORPORATE EXISTENCE. TSP will not amend
or cause to be amended its Articles of Incorporation or Bylaws, and TSP will
maintain its corporate existence and powers.
6.5 NO ACQUISITIONS.
(a) TSP will not acquire (by merging or consolidating
with, or by purchasing a substantial portion of the assets or stock of, or
other equity interests in, or by any other manner) any business or any other
Person.
(b) The Partnership will not acquire (by merging or
consolidating with, or by purchasing a substantial portion of the assets or
stock of, or other equity interests in, or by any other manner) any business or
any other Person.
6.6 DISPOSITION OF ASSETS. Other than in the ordinary course of
business and except as permitted by Section 6.3 or pursuant to the Loan
Agreement or any other agreement in effect on the date of this Agreement that
is described in Schedule 6.6, neither TSP nor the Partnership will sell,
mortgage, lease, buy or otherwise acquire, or transfer or dispose of any real
property or interest therein or sell or transfer, mortgage, pledge or subject
to any lien, charge or other encumbrance any other tangible or intangible asset
or enter into any agreement with respect to any of the foregoing.
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6.7 INDEBTEDNESS. Neither TSP nor the Partnership will (a) incur
any (i) indebtedness for borrowed money, (ii) purchase money indebtedness,
(iii) capital lease obligation or (iv) other liability or obligation that is
not or as of the Closing will not be a Specified Current Liability, (b)
guarantee any such indebtedness, liability or obligation, (c) issue or sell any
of its debt securities, (d) guarantee any debt securities of others or (e)
enter into any agreement with respect to any of the foregoing other than, in
the case of TSP, any of the foregoing as may be incurred, guaranteed, issued,
sold or entered into in TSP's capacity as a general or limited partner in the
Partnership.
6.8 OTHER ACTIONS. None of TSP, the Seller or the Partnership
will take any action that would result in any of the representations and
warranties concerning TSP or the Seller set forth in this Agreement becoming
untrue in any material respect at any time on or prior to the earlier of the
Closing or the date this Agreement terminates.
ARTICLE VII - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Seller to enter into this Agreement and to
consummate the transactions contemplated hereby, the Purchaser represents and
warrants that the following are true and correct as of the date hereof:
7.1 VALIDITY. This Agreement constitutes, and, when executed and
delivered, each other instrument or agreement to be executed and delivered by
the Purchaser pursuant to this Agreement will constitute, the legal, valid and
binding obligation of the Purchaser, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
generally the enforcement of creditors' rights and except as the same may be
limited by general principles of equity.
7.2 CORPORATE STATUS AND AUTHORITY. The Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Colorado. The Purchaser has full corporate power and
authority to execute and deliver this Agreement and each other instrument or
agreement to be executed and delivered by the Purchaser pursuant to this
Agreement, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby, and all corporate
action necessary on the part of the Purchaser to execute and deliver this
Agreement and each other instrument or agreement to be executed and delivered
by the Purchaser pursuant to this Agreement, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby has been taken.
7.3 NO CONFLICT. Subject to receipt of the consents described in
Schedule 5.19 and Schedule 7.4, the execution and delivery of this Agreement
and each other instrument or agreement to be executed and delivered by the
Purchaser pursuant to this Agreement, the performance by the Purchaser in
compliance with the terms hereof and thereof and the consummation by the
Purchaser of the transactions contemplated hereby and thereby will not result
in a breach of, or a default or acceleration under (or give any Person the
right to accelerate
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the performance of the Purchaser under), or require the consent of any Person
under, any material agreement, instrument or other obligation to which the
Purchaser is a party or by which it or any of its properties or assets may be
bound or affected or violate in any material respect any applicable Legal
Requirement.
7.4 APPROVALS AND CONSENTS. Schedule 7.4 lists all consents or
other approvals necessary in order for the Purchaser to consummate the
transactions contemplated by this Agreement, including all approvals and
consents of Governmental Authorities, other than consents or approvals which
have already been obtained. Anything in this Agreement to the contrary
notwithstanding, the Purchaser makes no representation or warranty as to
whether the consent of Scripps ▇▇▇▇▇▇ Production, Inc. is required under the
Partnership Agreement.
7.5 INVESTMENT INTENT. The Purchaser acknowledges that the Shares
have not been registered under the Securities Act of 1933 or under any other
securities laws and agrees that it is acquiring the Shares solely for its own
account, for investment purposes only and not with a view to the resale or
distribution thereof in whole or in part. The Shares will not be offered for
sale, sold or otherwise transferred by the Purchaser without either
registration or exemption from registration under the Securities Act of 1933
and any other applicable securities laws. The Purchaser acknowledges and
agrees that each certificate evidencing Shares will bear a legend indicating
that such Shares have not been registered under the Securities Act of 1933 or
any other applicable securities laws and that transfer of such Shares is
restricted.
7.6 LITIGATION. There are no actions, decrees, suits,
counterclaims, claims, proceedings or investigations pending or, to the
knowledge of the Purchaser, threatened against, or affecting the Purchaser in,
before or by any court or other Governmental Authority or before any
arbitrator, and no judgment, award, order or decree of any nature has been
rendered against the Purchaser by an arbitrator or any court or other
Governmental Authority, in any case which reasonably could be expected to
prevent or impede in any material respect the consummation by the Purchaser of
the transactions contemplated by this Agreement or which could reasonably be
expected to have a material adverse effect on the financial condition, assets
or operations of the Purchaser.
7.7 FINANCIAL STATEMENTS. The Purchaser has delivered to the
Seller a true and complete copy of the unaudited balance sheet of the Purchaser
as of August 31, 1995 and the related statement of operations for the eight-
month period then ended. Such financial statements fairly present in all
material respects the financial position and results of operations of the
Purchaser as of the date and for the period indicated therein.
7.8 ABSENCE OF CHANGES. Since the date of the balance sheet
referenced in Section 7.7, there has been no material adverse change in the
business, assets, liabilities, results of operations or financial condition of
the Purchaser, except any such change occurring solely because of a material
adverse change in the business, assets, liabilities, results of operations or
financial condition of the Partnership.
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7.9 DISCLOSURE. No representation or warranty by the Purchaser in
this Agreement, in any Schedule or Exhibit to this Agreement or in any
certificate or other document delivered pursuant to this Agreement contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact required to make the statements contained herein or
therein, in light of the circumstances in which they are made, not misleading
to the Seller, as a sophisticated Person with experience in the cable
television programming industry.
ARTICLE VIII - CONDITIONS TO OBLIGATIONS OF THE PURCHASER
All of the obligations of the Purchaser under this Agreement are
subject to the fulfillment prior to or on the Closing Date of each of the
following conditions, any one or more of which may be waived, in whole or in
part, in writing by the Purchaser:
8.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties concerning TSP, the Seller and the Partnership contained in this
Agreement or in any certificate, schedule or other document delivered pursuant
to this Agreement, or in connection herewith, if qualified by a reference to
materiality, are true and, if not so qualified, are true in all material
respects, as of the Closing Date, except as a result of changes or events
expressly permitted or contemplated by this Agreement.
8.2 PERFORMANCE OF AGREEMENT. The Seller shall have performed and
complied in all material respects with all agreements and conditions required
by this Agreement to be performed or complied with by the Seller prior to or on
the Closing Date.
8.3 CERTIFICATES, ETC. The Seller shall have delivered to the
Purchaser:
(a) a certificate, dated as of the Closing Date,
certifying in such detail as the Purchaser may reasonably request to the
fulfillment of the conditions specified in Section 8.1 and Section 8.2;
(b) a certificate from the Secretary of State of the
State of Georgia and each other jurisdiction in which TSP is qualified to
conduct business, dated not more than 45 days prior to the Closing Date,
certifying that TSP is in good standing; and
(c) an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, in the form of
Exhibit F, as to the matters described therein.
8.4 REGULATORY APPROVALS. Such consents, authorizations and
approvals as are necessary for the consummation of the transactions
contemplated hereby shall have been received from all Governmental Authorities
having jurisdiction over such transactions, and all applicable waiting or
similar periods required by any applicable Legal Requirement shall have expired
or been terminated, including the waiting period under the HSR Act.
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8.5 NO INJUNCTIONS, ETC. No preliminary or permanent injunction
or other order by any federal or state court which prevents the consummation of
the transactions contemplated by this Agreement shall have been issued and
remain in effect.
8.6 CONSENTS AND APPROVALS OF THIRD PARTIES. All consents,
authorizations and approvals to the transactions contemplated by this Agreement
necessary to the consummation of such transactions or that are required
pursuant to the terms of any material agreement or arrangement to which TSP or
the Partnership is a party or by which TSP or the Partnership or assets of
either of them are bound shall have been duly obtained, and such consents,
authorizations or approvals shall be in form and substance reasonably
satisfactory to the Purchaser and without condition or material cost or expense
to the Purchaser, TSP or the Partnership.
8.7 RESIGNATIONS. The Purchaser shall have received copies of
written resignations from all persons serving as directors and officers of TSP.
Such resignations shall be effective on or prior to the Closing Date.
8.8 NO MATERIAL ADVERSE CHANGE. There shall not have occurred any
material adverse change in the business, operations, condition (financial or
otherwise) or prospects of TSP or the Partnership.
8.9 TELECAST RIGHTS AGREEMENTS. The Partnership, concurrently
with the Closing, shall have entered into (i) a Telecast Rights Agreement with
Atlanta Hawks Limited Partnership conforming in all material respects to the
terms set forth in EXHIBIT D and (ii) a Telecast Rights Agreement with Atlanta
National League Baseball Club, Inc. conforming in all material respects to the
terms set forth in EXHIBIT E, in each case effective as of the Closing.
8.10 ACTIVITIES AGREEMENT. Time Warner Inc. and the Seller shall
have executed and delivered to the Purchaser the Activities Agreement.
ARTICLE IX - CONDITIONS TO OBLIGATIONS OF THE SELLER
All of the obligations of the Seller under this Agreement are subject
to the fulfillment prior to or on the Closing Date of each of the following
conditions, any one or more of which may be waived, in whole or in part, in
writing by the Seller:
9.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser contained in this Agreement or in any certificate,
schedule or other document delivered pursuant to this Agreement, or in
connection herewith, if qualified by a reference to materiality, are true and,
if not so qualified, are true in all material respects, as of the Closing Date,
except as a result of changes or events expressly permitted or contemplated by
this Agreement.
9.2 PERFORMANCE OF AGREEMENTS. The Purchaser shall have performed
and complied in all material respects with all agreements and conditions
required by this Agreement to be performed or complied with by it prior to or
on the Closing Date.
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9.3 SECURITY DOCUMENTS, CERTIFICATES, ETC. The Purchaser shall
have delivered to the Seller:
(a) a Pledge Agreement in the form of EXHIBIT G, duly
executed by the Purchaser, granting to the Seller as security for the payment
of the Note a first priority security interest in all the Pledged Shares;
(b) either (i) a Pledge Agreement in the form of EXHIBIT
H, duly executed by TSP, granting to the Seller as security for the payment of
the Note a first priority security interest in the Pledged Partnership Interest
held by each of them, if the consents of Scripps ▇▇▇▇▇▇ Production, Inc. and
the Banks (as defined in the Loan Agreement) to such Pledge Agreement are
obtained at or prior to the Closing or (ii) if the consents of Scripps ▇▇▇▇▇▇
Production, Inc. and the Banks (as defined in the Loan Agreement) to such
Pledge Agreement are not obtained at or prior to the Closing, a Negative Pledge
Agreement in the form of EXHIBIT I, duly executed by TSP;
(c) a certificate, dated as of the Closing Date,
certifying in such detail as the Seller may reasonably request to the
fulfillment of the conditions specified in Section 9.1 and Section 9.2;
(d) a certificate from the Secretary of State of
Colorado, dated not more than 45 days prior to Closing Date, certifying that
the Purchaser is in good standing in the State of Colorado; and
(e) an opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C., in the form of
EXHIBIT J, as to the matters described therein.
9.4 APPROVALS. All Governmental Authorities having jurisdiction
over the transactions contemplated by this Agreement shall have granted such
consents, authorizations and approvals as are necessary for the consummation
thereof, and all applicable waiting or similar periods required by any
applicable Legal Requirement shall have expired or been terminated, including
the waiting period under the HSR Act.
9.5 NO INJUNCTIONS, ETC. No preliminary or permanent injunction
or other order by any federal or state court which prevents the consummation of
the transactions contemplated by this Agreement shall have been issued and
remain in effect.
9.6 CONSENTS. The Seller shall have received those written
consents and approvals described in Schedule 9.6.
9.7 CLOSING OF TRANSACTIONS CONTEMPLATED BY MERGER AGREEMENT.
Concurrently with the Closing, there shall occur a closing of the transactions
contemplated by the Merger Agreement. Anything herein to the contrary
notwithstanding, the Seller will have no obligation
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hereunder to close the transactions contemplated by the Merger Agreement and,
if such transactions do not close, the Seller will have no obligation to close
hereunder.
9.8 TELECAST RIGHTS AGREEMENTS. The Partnership, concurrently
with the Closing, shall have entered into (i) a Telecast Rights Agreement with
Atlanta Hawks Limited Partnership conforming in all material respects to the
terms set forth in EXHIBIT D and (ii) a Telecast Rights Agreement with Atlanta
National League Baseball Club, Inc. conforming in all material respects to the
terms set forth in EXHIBIT E, in each case effective as of the Closing.
ARTICLE X - INDEMNIFICATION
10.1 INDEMNIFICATION BY THE SELLER. The Seller will indemnify and
hold harmless and defend the Purchaser at all times from and after the date of
this Agreement against and in respect of the following:
(a) any loss, claim, liability, expense or other damage
incurred by the Purchaser caused by, resulting from or arising out of, (i) any
failure on the part of the Seller to perform any covenant or agreement of the
Seller in this Agreement or in any other instrument or agreement delivered
pursuant hereto, (ii) any breach of warranty or any inaccurate or erroneous
representation made by the Seller in this Agreement, including the Schedules
attached hereto, or in any other instrument or agreement delivered pursuant
hereto or (iii) any obligation or liability of TSP based on or arising from any
act, omission, event or circumstance occurring or existing before the Closing,
except to the extent that any such liability or obligation (A) is reflected on
the Closing Date balance sheet of the Partnership as part of the Specified
Current Liabilities or is otherwise included in the determination of the Net
Partnership Value pursuant to Section 2.3 or (B) arises from a liability or
obligation of the Partnership (x) under any instrument or agreement entered
into by the Partnership before the Closing as to which the Partnership shall
have fully performed all of its obligations thereunder to the extent relating
to any period ending before the Closing, (y) resulting from an act or omission
of the Purchaser in violation of the Partnership Agreement or applicable Legal
Requirements or (z) under an instrument or agreement executed and delivered by
the Partnership or TSP at the Closing; and
(b) any and all actions, suits, proceedings, demands,
assessments, judgments and reasonable legal and other costs and expenses,
including reasonable attorneys' fees, incidental to any of the foregoing.
The total amounts payable by the Seller under the
indemnification contained in this Section 10.1 will not exceed the Purchase
Price, provided that such limitation will not apply to any claim for
indemnification for Taxes. No claims will be payable by the Seller under this
Section 10.1 unless and until the aggregate amount of all such claims exceeds
$50,000, at which time the Seller will be liable for all claims hereunder in
excess of that amount. The limitation set forth in the preceding sentence will
not apply to any claim for Taxes or for breach of the representations and
warranties set forth in Section 5.5 and Section 5.17. Anything in this Section
to the contrary notwithstanding, if a claim by the Purchaser for
indemnification by the Seller
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arises from a liability of the Partnership that would have been borne 44% by
the Seller and 56% by the other partners in the Partnership if such claim had
been paid prior to the Closing Date, the Seller's liability will be limited to
44% of the amount of such claim. No claim by the Purchaser for indemnification
by the Seller under this Section 10.1 may be made more than two years after the
Closing Date, provided that such limitation will not apply to (i) any claim for
indemnification for Taxes, which may be made at any time prior to expiration of
the applicable statute of limitations or (ii) any claim for breach of any of
the Seller's representations and warranties in Section 5.5 and Section 5.17,
which may be made at any time. The Purchaser will reimburse the Seller for any
amounts paid by the Seller to the Purchaser with respect to a liability under
the indemnification contained in this Section 10.1 to the extent that the
Purchaser receives payments with respect to such liability under any policy of
insurance maintained by the Purchaser. To the extent requested by the Seller,
the Purchaser will supply the Seller with reasonable documentation as to any
claim for costs and legal and other expenses incurred by the Purchaser for
which the Purchaser is seeking indemnification hereunder. Notwithstanding any
provision in this Agreement to the contrary, the Seller will be entitled to pay
any amount for which it is liable for indemnification hereunder as a credit
against payments of interest or principal due under the Note or any amended and
restated Note, whether or not such interest is then due and payable. Any such
credit will be applied to installments of interest or principal in order of
their respective due dates. The limitations set forth in this Section 10.1
will apply to any action at law or in equity based on the items covered by the
indemnity set forth herein.
10.2 INDEMNIFICATION BY THE PURCHASER. The Purchaser will
indemnify and hold harmless and defend the Seller at all times from and after
the date of this Agreement, against and in respect of the following:
(a) any loss, claim, liability, expense or other damage
incurred by the Seller caused by, resulting from or arising out of (i) any
failure on the Purchaser's part to perform any covenant or agreement of the
Purchaser in this Agreement or any other instrument or agreement delivered
pursuant hereto, (ii) any breach of warranty or any inaccurate or erroneous
representation made by the Purchaser in this Agreement, including the Schedules
attached hereto, or in any other instrument or certificate delivered pursuant
hereto or (iii) any obligation or liability of TSP based on or arising from any
act, omission, event or circumstance first occurring or existing after the
Closing; and
(b) any and all actions, suits, proceedings, demands,
assessments, judgments and reasonable legal and other costs and expenses,
including reasonable attorneys' fees, incidental to any of the foregoing.
The total amounts payable by the Purchaser under the
indemnification contained in this Section 10.2 will not exceed the Purchase
Price, provided that such limitation will not apply to any claim for
indemnification for Taxes. No claims will be payable by the Purchaser under
this Section 10.2 unless and until the aggregate amount of all such claims
exceeds $50,000, at which time the Purchaser will be liable for all claims
hereunder in excess of that amount. The limitation set forth in the preceding
sentence will not apply to any claim for Taxes or for failure
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to pay the Purchase Price. No claim by the Seller for indemnification by the
Purchaser under this Section 10.2 may be made more than two years after the
Closing Date, provided that such limitation will not apply to any claim for
indemnification for Taxes or for failure to pay the Purchase Price, which may
be made at any time prior to expiration of the applicable statute of
limitations. The Seller will reimburse the Purchaser for any amounts paid by
the Purchaser to the Seller with respect to a liability under the
indemnification contained in this Section 10.2 to the extent that the Seller
receives payments with respect to such liability under any policy of insurance
maintained by the Seller. To the extent requested by the Purchaser, the Seller
will supply the Purchaser with reasonable documentation as to any claim for
costs and legal and other expenses incurred by the Seller for which the Seller
is seeking indemnification hereunder. None of the limitations set forth in
this Section 10.2 will apply to any action or claim with respect to, or to
representations and warranties set forth in, the Note, any amended or restated
Note or the Security Documents.
10.3 THIRD-PARTY CLAIMS. If a claim by a third party is made
against any indemnified party, and if such indemnified party intends to seek
indemnity with respect thereto under this Article X, such indemnified party
will promptly notify the indemnifying party of such claim. The indemnifying
party will have 15 days after receipt of the above-mentioned notice to
undertake, conduct and control, through counsel of its own choosing and at its
expense, the settlement or defense thereof, and the indemnified party will
cooperate with it in connection therewith, provided that: (i) the indemnifying
party will not thereby permit to exist any lien, encumbrance or other adverse
charge upon any asset of the indemnified party; (ii) the indemnifying party
will permit the indemnified party to participate in such settlement or defense
through counsel chosen by the indemnified party, provided that the fees and
expenses of such counsel will be borne by the indemnified party unless (A) the
indemnifying party has failed promptly to employ counsel reasonably
satisfactory to the indemnified party to take charge of the defense of such
claim, (B) the indemnified party has reasonably concluded that there may be one
or more legal defenses available to it which are different from those available
to the indemnifying party or (C) the remedies sought against the indemnified
party include injunctive or similar relief, in any of which events the
reasonable fees and expenses of the indemnified party's counsel will be paid by
the indemnifying party; and (iii) the indemnifying party agrees promptly to
reimburse the indemnified party for the full amount of any loss resulting from
such claim and all related expense incurred by the indemnified party. So long
as the indemnifying party is reasonably contesting any such claim in good
faith, the indemnified party will not pay or settle any such claim.
Notwithstanding the foregoing, in the event the indemnifying party assumes
responsibility for defending any third-party claims, the indemnified party will
have the right to pay or settle any such claim (other than a claim seeking
injunctive or similar relief against the indemnified party), provided that in
such event the indemnified party will waive any right to indemnity therefor by
the indemnifying party and will secure a release of claims by the third-party
claimant reasonably satisfactory to the indemnifying party. If the
indemnifying party does not notify the indemnified party within 15 days after
receipt of the indemnified party's notice of a claim of indemnity hereunder
that it elects to undertake the defense thereof, the indemnified party will
have the right, but not the obligation, to contest, settle or compromise the
claim at the expense of the indemnifying party. The indemnified party will,
however, notify the indemnifying party of any
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compromise or settlement of any such claim. Nothing contained in this Section
10.3 will be construed as a limitation on the right of any party to
indemnification under Section 10.1 or Section 10.2.
10.4 CERTAIN CLAIMS. Anything in this Agreement to the contrary
notwithstanding, the Seller and the Purchaser will share equally in any
liabilities or expenses in respect of:
(a) any loss, claim, liability, expense or other damage
incurred by either or both of them caused by, resulting from or arising out of
a claim by Scripps ▇▇▇▇▇▇ Production, Inc. that its consent or approval is
required with respect to the sale of the Shares by the Seller to the Purchaser
contemplated by this Agreement; and
(b) any and all actions, suits, proceedings, demands,
assessments, judgments and reasonable legal and other costs and expenses,
including reasonable attorneys' fees, incidental to any of the foregoing.
The parties will cooperate with each other in defending any claim covered by
this Section 10.4, and the consent of both parties, which consent will not be
reasonably withheld, will be required to effect the settlement of any such
claim.
10.5 EXCLUDED CLAIMS. Notwithstanding any provision of this
Agreement to the contrary, neither the Purchaser nor the Seller will be liable
for indemnification to the other pursuant to this Agreement with respect to any
suit, action or proceeding challenging the transactions contemplated by the
Merger Agreement.
ARTICLE XI - TERMINATION
This Agreement may be terminated by the Purchaser or the Seller for
the reasons set forth in this Article XI at any time prior to or on the Closing
Date upon written notice to the other as follows and, upon any such termination
of this Agreement (other than pursuant to Section 11.1 and Section 11.2),
neither party will have any liability to the other, except that the provisions
of Section 4.1 and Section 4.6 will survive the termination of this Agreement
for any reason. These events of termination are intended to operate
independently from any other agreements, representations, warranties or
conditions contained in this Agreement.
This Agreement may be terminated:
11.1 NONCOMPLIANCE OF THE SELLER. By the Purchaser, if the terms,
covenants or conditions of this Agreement to be performed or complied with by
the Seller before the Closing shall not have been complied with or performed in
all material respects at or before the Closing Date or in the event it becomes
apparent that any such condition is not capable of being satisfied on or prior
to the date of the closing under the Merger Agreement or the date that is 92
days after the earlier of the two dates referenced in Section 7.01(b)(iii) of
the Merger Agreement (or any
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extension of that date), whichever is later, and such non-compliance or
non-performance or failure of such condition to be satisfied shall not have
been waived by the Purchaser.
11.2 NONCOMPLIANCE OF THE PURCHASER. By the Seller, if the terms,
covenants or conditions of this Agreement to be complied with or performed by
the Purchaser before the Closing shall not have been complied with or performed
in all material respects at or before the Closing Date or in the event it
becomes apparent that any such condition is not capable of being satisfied on
or prior to the date of the closing under the Merger Agreement or the date that
is 92 days after the earlier of the two dates referenced in Section
7.01(b)(iii) of the Merger Agreement (or any extension of that date), whichever
is later, and such non-compliance or non-performance or failure of such
condition to be satisfied shall not have been waived by the Seller.
11.3 HSR ACT. By the Purchaser, pursuant to Section 4.10.
11.4 TERMINATION OF MERGER AGREEMENT. By the Seller or the
Purchaser, if the Merger Agreement shall have been terminated or otherwise
ceases to be in effect pursuant to its terms.
11.5 TERMINATION DATE. By either party, if the Closing has not
been consummated on or prior to the date of the closing under the Merger
Agreement or the date that is 92 days after the earlier of the two dates
referenced in Section 7.01(b)(iii) of the Merger Agreement (or any extension of
that date), whichever is later, for any reason other than (a) a breach or
default by such party in the performance of any of its obligations under this
Agreement or (b) the failure of any representation or warranty of such party to
be true.
ARTICLE XII - MISCELLANEOUS
12.1 RELIANCE ON REPRESENTATIONS. All representations, warranties,
covenants and agreements made by any party in or pursuant to this Agreement or
in any instrument, agreement, certificate or other document delivered pursuant
to this Agreement will be deemed to have been relied upon by the party to which
made. Subject to the limitations on the making of claims set forth in Section
10.1 and Section 10.2, all of the representations and warranties and, to the
extent required to be performed after the Closing, all of the covenants and
agreements set forth in this Agreement will survive the Closing.
12.2 NOTICES. All notices, requests, demands and other
communications required or permitted hereunder will be in writing and will be
deemed to have been duly given if delivered or mailed, postage prepaid as to
each of the parties hereto or by facsimile transmission, receipt acknowledged,
at the respective addresses and facsimile numbers set forth below (or at such
other address as to which any such party may have theretofore notified the
other party pursuant to the terms hereof):
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(a) To the Purchaser:
c/o Liberty Media Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Tele-Communications, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) To the Seller:
▇▇▇▇▇▇ Broadcasting System, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy similarly addressed:
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
General Counsel
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and with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
NationsBank Plaza, Suite 5200
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
12.3 ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the matters
addressed herein and this Agreement and the agreements referred to herein
contain the sole and entire agreement among the parties with respect to the
subject matter hereof and the transactions contemplated hereby.
12.4 WAIVER; AMENDMENT. Prior to or on the Closing Date, each
party will have the right to waive any default in the performance of any term
of this Agreement by the other party, to waive or extend the time for the
fulfillment by such other party of any or all of its obligations under this
Agreement and to waive any or all of the conditions precedent to such party's
obligations under this Agreement, except any condition which, if not satisfied,
would result in the violation of any Legal Requirement. This Agreement may be
amended only by a subsequent writing signed by both of the parties.
12.5 COUNTERPARTS, HEADINGS, ETC. This Agreement may be executed
simultaneously in any number of counterparts, each of which will be deemed an
original, but all of which will constitute one and the same instrument. The
headings herein are for convenience of reference only and will not be deemed a
part of this Agreement. Any signature page to this Agreement may be witnessed
by a telecopy or other facsimile of any original signature page and any
signature page of any counterpart hereof may be appended to any other
counterpart hereof to form a completely executed counterpart hereof.
12.6 SUCCESSORS AND ASSIGNS; ASSIGNABILITY. This Agreement will be
binding upon and will inure to the benefit of the Purchaser and the Seller and
their respective successors and permitted assigns. Neither party may assign
its rights or delegate its obligations hereunder to any Person other than an
Affiliate, it being agreed, however, that no assignment or delegation to an
Affiliate will relieve the party of any of its obligations under this
Agreement.
12.7 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
12.8 INTERPRETATION. All Sections, sub-Sections, paragraphs, terms
and provisions of this Agreement are severable, and the unenforceability or
invalidity of any of the terms, provisions, Sections, sub-Sections or
paragraphs of this Agreement will not affect the validity or
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enforceability of the remaining terms, provisions, Sections, sub-Sections or
paragraphs of this Agreement, but such remaining terms, provisions, Sections,
sub-Sections or paragraphs will be interpreted and construed in such a manner
as to carry out fully the intention of the parties hereto.
12.9 TIME. Time is of the essence under this Agreement. However,
if the last day for the giving of any notice or the taking of any action
required or permitted to be given or taken pursuant to this Agreement is not a
Business Day, the time for giving such notice or taking such action will be
extended to the next Business Day.
12.10 INTEREST. If any amount payable by one party to the other
pursuant to this Agreement is not paid when due, interest will be payable on
such amount from the due date to the date of payment at the rate (unless
another rate is prescribed by this Agreement) that is 2% above the rate
publicly announced by The Bank of New York as its prime rate, adjusted as and
when changes in such prime rate become effective, or the maximum legal rate,
whichever is lower.
12.11 RIGHT TO SPECIFIC PERFORMANCE. The Seller acknowledges that
the unique nature of the Shares to be purchased by the Purchaser pursuant to
this Agreement renders money damages an inadequate remedy for the breach by the
Seller of its obligations under this Agreement, and the Seller agrees that in
the event of such breach, the Purchaser will upon proper action instituted by
it, be entitled to a decree for specific performance of this Agreement.
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12.12 EFFECTIVENESS. This Agreement will not become effective until
the closing of the transactions contemplated by the Merger Agreement, except
for the covenants and agreements set forth in the following provisions, which
will be effective upon execution and delivery of this Agreement by the Seller
and the Purchaser: Sections 4.1 through Section 4.7, inclusive; Section 4.10;
Section 4.16; Sections 6.1 through Section 6.8, inclusive; Section 10.4;
Sections 11.1 through 11.5, inclusive; and Sections 12.1 through 12.12,
inclusive.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the day and year first above written.
"SELLER"
------
▇▇▇▇▇▇ BROADCASTING SYSTEM, INC.
By:
-----------------------------------------
Its:
----------------------------------------
"PURCHASER"
---------
LMC SOUTHEAST SPORTS, INC.
By:
-----------------------------------------
Its:
----------------------------------------
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