ESCROW AGREEMENT
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This Escrow Agreement ("Agreement") is dated
effective as of October 31, 1996, and entered into among
National Bank of Alaska ('Escrow Agent"), Alaskan Cable
Network/Fairbanks, Inc. ("ACNFI"), Alaskan Cable Network/
Juneau, Inc. ("ACNJI") and Alaskan Cable Network
Ketchikan-Sitka, Inc. ("ACNKSI," collectively, "Sellers"),
and General Communication, Inc., an Alaska corporation
("GCI"). Sellers and GCI are collectively referred to in
this Agreement as "Transaction Parties." Sellers and GCI are
parties to a Asset Purchase and Sale Agreement dated as of
April 15, 1996 ("Purchase Agreement").
For valuable consideration, the parties agree as
follows
1. Escrow Agent. The Transaction Parties appoint
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and designate Escrow Agent as escrow agent for the purposes
set forth in this Agreement, and Escrow Agent accepts such
appointment on the terms provided in this Agreement.
2. Deposits with Escrow Agent. Escrow Agent will
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establish and maintain an escrow account (which, together
with all funds, instruments and securities delivered to
Escrow Agent by and on behalf of Sellers or GCI, and all
earnings thereon, are referred to collectively as the "Escrow
Fund"). Upon the execution of this Agreement, Sellers will
cause delivery to Escrow Agent the aggregate amount of Five
Hundred Thirty-Eight Thousand (538,000) shares of Class A
common stock, no par value ("GCI Class A Stock"), of GCI
("Sellers' Escrow Shares"). Upon execution hereof, GCI will
cause delivery to Escrow Agent Five Hundred Thirty-Eight
Thousand (538,000) shares of GCI Class A Stock (the "GCI
Escrow Shares"). The Transaction Parties agree that the
value of a share of GCI Class A Stock for purposes of this
Agreement is Six and 50/100 Dollars ($6.50) ("GCI Share
Price").
3. Investment of Escrow Fund. Escrow Agent will
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invest any cash held in the Escrow Fund, and the Earnings (as
defined in Section 6 of this Agreement) from the investment
thereof, in Investment Securities (as Jointly directed by the
Transaction Parties) or in other investments if directed by
the joint written instructions of the Transaction Parties and
Escrow Agent shall separately account for the Earnings
received with respect to the Sellers' Escrow Shares and the
Earnings received with respect to the GCI Escrow Shares. The
term "Investment Securities" means (i) United States
government securities or securities of agencies of the United
States government which are guaranteed by the United States
government, (ii) commercial paper issued by corporations,
each of which will have a consolidated net worth of at least
$250 million and each of which conducts a substantial part of
its business in the United States of America, maturing within
180 days from the date of the original issue thereof but in
no event later than the Escrow Disbursement Date except if a
GCI Claim Certificate or a Sellers' Claim Certificate (as
defined below) has been delivered to Escrow Agent, and
carrying the highest rating by Xxxxx'x Investors Service,
Inc. ("Moody's") or Standard and Poor's Corporation ("S&P"),
and (iii) certificates of deposit maturing within 180 days of
the date of purchase but in no event later than the Escrow
Disbursement Date except if a GCI Claim Certificate or a
Sellers' Claim Certificate has been delivered to Escrow
Agent, which are issued by any United States national or
state bank whose long term debt rating is rated A3 or better
by Moody's or A- or better by S&P and which has capital,
surplus and undivided profits totaling more than $250
million. Escrow Agent shall provide a monthly report to
Sellers and to GCl, which report shall include a list of the
holdings in the Escrow Fund and all transactions relating
thereto.
4. Disbursement of Sellers' Escrow Deposit.
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(a) Except as otherwise provided in this
SECTION 4(a), Escrow Agent will disburse the Sellers' Escrow
Shares to Sellers (or as directed by Sellers in a written
certificate delivered by Sellers to Escrow Agent prior to the
Escrow Disbursement Date, as defined below) on April 30, 1997
("Escrow Disbursement Date"). If, prior to the Escrow
Disbursement Date, Escrow Agent receives a certificate signed
on behalf of GCI (a "GCI Claim Certificate") in the form of
EXHIBIT A with completed information concerning the nature
and amount of an indemnification claim by GCI under the
Purchase Agreement ("GCI Claim Amount") which will in no
event exceed Three Million Four Hundred Ninety Seven Thousand
and no/100 Dollars ($3,497,000), Escrow Agent will retain in
the Escrow Fund that number of the Sellers' Escrow Shares, at
a price per share equal to the GCI Share Price (the "Retained
Sellers' Shares"), as is equal to the certified GCI Claim
Amount for disbursement in accordance with Section 4(a)(i) OR
(ii) as applicable. Escrow Agent will disburse the remainder
of the Sellers' Escrow Shares (and all Earnings thereon) that
are not required to be retained pursuant to the preceding
sentence to Sellers on the Escrow Disbursement Date. If a
GCI Claim Certificate is delivered to Escrow Agent prior to
the Escrow Disbursement Date, Escrow Agent will retain the
Retained Sellers' Shares in the Escrow Fund pursuant to this
Agreement until either:
(i) Escrow Agent receives Joint
written instructions signed on behalf of
Sellers and GCI specifying the method for
disbursing the Retained Sellers' Shares in
which case such shares and all Earnings
thereon will be disbursed promptly by Escrow
Agent in accordance with such instructions;
or
(ii) Escrow Agent receives an official
copy of a final, non-appealable order issued
by a court of competent jurisdiction
specifying the method for disbursement of
the Retained Sellers' Shares, in which case
such Shares and all Earnings thereon will be
disbursed promptly by Escrow Agent in
accordance with such instructions.
(b) Notwithstanding anything to the contrary
in this Agreement, Escrow Agent will disburse the Sellers'
Escrow Shares in accordance with any Joint written
instructions signed by the Transaction Parties.
(c) All disbursements of funds, if any, in
the Escrow Fund pursuant to this Section 4 will be by wire or
interbank transfer of immediately available funds to the
account or accounts designated in writing by Sellers or GCI,
as applicable.
(d) GCI will deliver a copy of any GCI Claim
Certificate to Sellers contemporaneously with or before
delivery of the GCI Claim Certificate to Escrow Agent.
5. Disbursement of the GCI Escrow Deposit.
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(a) Except as otherwise provided in this
SECTION 5(a), Escrow Agent will disburse the GCI Escrow
Shares to GCI on the Escrow Disbursement Date. If, prior to
the Escrow Disbursement Date, Escrow Agent receives a
certificate signed on behalf of Sellers (a "Sellers' Claim
Certificate") in the form of EXHIBIT B with completed
information concerning the nature and amount of an
indemnification claim by Sellers under the Purchase Agreement
("Sellers' Claim Amount") which will in no event exceed Three
Million Four Hundred Ninety Seven Thousand and no/100
Dollars, Escrow Agent will retain in the Escrow Fund (x) that
number of the GCI Escrow Shares, at a price per share equal
to the GCI Share Price (the "Retained GCI Shares"), as is
equal to the certified Sellers' Claim Amount, for
disbursement in accordance with SECTION 5(a)(i) OR (ii) as
applicable. Escrow Agent will disburse the remainder of the
GCI Escrow Shares (and all Earnings thereon) that are not
required to be retained pursuant to the preceding sentence to
GCI on the Escrow Disbursement Date. If a Sellers' Claim
Certificate is delivered to Escrow Agent prior to the Escrow
Disbursement Date, Escrow Agent will retain the Retained GCI
Shares in the Escrow Fund pursuant to this Agreement until
either:
(i) Escrow Agent receives joint
written instructions signed on behalf of
Sellers and GCI specifying the method for
disbursing the Retained GCI Shares, in which
case such shares, and Earnings thereon will
be disbursed promptly by Escrow Agent in
accordance with such instructions; or
(ii) Escrow Agent receives an official
copy of a final, non-appealable order issued
by a court of competent jurisdiction
specifying the method for disbursement of
the Retained GCI Shares, in which case such
Shares and Earnings thereon will be
disbursed promptly by Escrow Agent in
accordance with such instructions.
(b) Notwithstanding anything to the contrary
in this Agreement, Escrow Agent will disburse the GCI Escrow
Deposit in accordance with any Joint written instructions
signed by Sellers and GCI.
(c) All disbursements of funds, if any, in
the Escrow Fund pursuant to this SECTION 5 will be by wire or
interbank transfer of immediately available funds to the
account or accounts designated in writing by Sellers or GCI,
as applicable.
(d) Sellers will deliver a copy of any
Sellers' Claim Certificate to GCI contemporaneously with or
before delivery of the Sellers' Claim Certificate to Escrow
Agent.
6. Disbursement of Earnings, etc. The interest,
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earnings and/or gains ("Earnings") received by Escrow Agent
with respect to the Escrow Securities, the Escrow Cash or
from the investment of any other cash held in the Escrow Fund
will be reinvested by Escrow Agent as permitted in SECTION 3
of this Agreement. With a disbursement of all or a portion
of the Escrow Fund pursuant to SECTIONS 4 OR 5 of this
Agreement, Escrow Agent will distribute to the Transaction
Party receiving such disbursement a proportionate share of
the Earnings from the investment of that particular portion
of the Escrow Fund.
7. Rights, Duties and Liabilities of Escrow
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Agent.
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(a) Escrow Agent will have no duty to know or
determine the performance or nonperformance of any provision
of any agreement between the Transaction Parties, including,
but not limited to, the Purchase Agreement, which will not
bind Escrow Agent in any manner. Escrow Agent assumes no
responsibility for the validity or sufficiency of any
document or paper or payment deposited or called for under
this Agreement except as may be expressly and specifically
set forth in this Agreement, and the duties and
responsibilities of Escrow Agent under this Agreement are
limited to those expressly and specifically stated in this
Agreement.
(b) Escrow Agent will not be personally
liable for any act it may do or omit to do under this
Agreement as such agent while acting in good faith and in the
exercise of its own best judgment; and any act done or
omitted by it in accordance with the written advice of its
counsel will be conclusive evidence of such good faith
unless, in any event, the same constitutes gross negligence
or willful misconduct. Escrow Agent will have the right at
any time to consult with its counsel upon any question
arising under this Agreement and will incur no liability for
any delay reasonably required to obtain the advice of
counsel.
(c) Other than those notices or demands
expressly provided in this Agreement, Escrow Agent is
expressly authorized to disregard any and all notices or
demands given by Sellers or GCI, or by any other person, firm
or corporation, excepting only orders or process of court,
and Escrow Agent is expressly authorized to comply with and
obey any and all final process, orders, judgments, or decrees
of any court, and to the extent Escrow Agent obeys or
complies with any thereof of any court, it will not be liable
to any party to this Agreement or to any other person, firm
or corporation by reason of such compliance.
(d) In consideration of the acceptance of
this Escrow by Escrow Agent, GCI agrees for it and its
successors and assigns, to pay to Escrow Agent its charges,
fees and reasonable expenses as contemplated by this
Agreement. The escrow fees or charges will be Two Thousand
and no/100 Dollars ($2,000.00). Such sum is intended as
compensation for Escrow Agent's ordinary services as
contemplated by this Agreement, including, without
limitation, (i) the investment of funds held in the Escrow
Fund and the reinvestment thereof and of Earnings and (ii)
the disbursement thereof and of any of the Escrow Fund to the
Transaction Parties. In the event Escrow Agent renders
services not provided for in this Agreement, Escrow Agent
will be entitled to receive from the transaction parties
reasonable compensation and reasonable costs, if any, for
such extraordinary services.
(e) Escrow Agent will be under no duty or
obligation to ascertain the identity, authority or right of
Sellers or GCI (or their agents) to execute or deliver or
purport to execute or deliver this Agreement or any
certificates, documents or papers or payments deposited or
called for or given under this Agreement.
(f) Escrow Agent will not be liable for the
outlawing of any rights under any statute of limitations or
by reason of laches in respect of this Agreement or any
documents or papers deposited with Escrow Agent.
(g) In the event of any dispute among the
parties to this Agreement as to the facts or as to the
validity or meaning of any provision of this Agreement, or
any other fact or matter relating to this Agreement or to the
transactions between Sellers and GCl, Escrow Agent is
instructed that it will be under no obligation to act, except
in accordance with this Agreement or under process or order
of court or, I there be no such process or order, until it
has filed or caused to be filed an appropriate action
interpleading Sellers and GCI and delivering the Escrow Fund
(or the portion of the Escrow Fund in dispute) to such court,
and Escrow Agent will sustain no liability for its failure to
act pending such process of court or order or interpleader of
action.
8. Modification of Agreement. The provisions of
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this Agreement may be supplemented, altered, amended,
modified, or revoked by writing only, signed by GCI and
Sellers and approved in writing by Escrow Agent, and upon
payment of all fees, costs and expenses incident thereto.
9. Assignment of Agreement. No assignment,
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transfer, conveyance or hypothecation of any right, title or
interest in and to the subject matter of this Agreement will
be binding upon any party, including Escrow Agent, unless all
fees, costs, and expenses incident thereto have been paid and
then only by the assent thereto by all parties in writing.
10. Miscellaneous.
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(a) All notices and communications under this
Agreement will be in writing and will be deemed to be duly
given if sent by registered mail, return receipt requested,
personal delivery or telecopier, as follows
To Escrow Agent: National Bank of Alaska
Trust Department
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: Xxxxxxx Xxxxxx,
Vice President
Telecopy: (000) 000-0000
To GCI at: General Communication, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx,
CFO and Senior
Vice President
Telecopy: (000) 000-0000
With a copy (which will not
constitute notice) to:
Xxxxxx, Xxxxxx, Xxxxxx, Xxxxxxx
& Xxxxxxx, P.C.
000 X Xxxxxx
Xxxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx,
Esq.
Telecopy: (000) 000-0000
To Sellers at: Xx. Xxxx Xxxx Xxxxx
Xxxxxx X. Xxxxx, Esq.
Xxxxx 000
Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopy: 1-(540) 687-5615
or at such other address or telecopy number as any of the
above may have furnished to the other parties in writing and
any such notice or communication given in the manner
specified in this SECTION 10(a) will be deemed to have been
given as of the date received. In the event that Escrow
Agent, in its sole discretion, determines that an emergency
exists, Escrow Agent may use such other means of
communication as Escrow Agent deems advisable.
(b) The undertakings and agreements contained
in this Agreement will bind and inure to the benefit of the
parties to this Agreement and their respective successors and
permitted assigns.
(c) This Agreement may be executed in one or
more counterparts, each of which will be deemed an original.
Whenever pursuant to this Agreement GCI and Sellers are to
deliver a Jointly signed writing to Escrow Agent or jointly
advise Escrow Agent in writing, such writing may in each and
all cases be signed jointly or in counterparts and such
counterparts will be deemed to be one instrument.
(d) Escrow Agent may resign and be discharged
from its duties or obligations under this Agreement by giving
notice in writing of such resignation to the Transaction
Parties at least 30 days in advance of such resignation
(unless waived in writing by the Transaction Parties). Such
resignation will be effective upon the appointment by the
Transaction Parties of a successor escrow agent, which will
be a federally chartered bank having combined capital and
surplus of at least $100,000,000.00; provided, that if any
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such appointment of any successor agent is not effectuated
within 30 days of such written notice, Escrow Agent may file
an action for interpleader and deposit all funds with a court
of competent jurisdiction, all as provided for in SECTION
7(g). Any such successor escrow agent will be appointed by a
written instrument mutually satisfactory to and executed by
GCl, Sellers, Escrow Agent and the successor escrow agent.
Any successor escrow agent appointed under the provisions of
this Agreement will have all of the same rights, powers,
privileges, immunities and authority with respect to the
matters contemplated herein as are granted herein to the
original Escrow Agent.
(e) GCI and Sellers hereby jointly and
severally agree to indemnify Escrow Agent for, and to hold it
harmless against any loss, liability or reasonable
out-of-pocket expense arising out of or in connection with
this Agreement and carrying out its duties hereunder,
including the reasonable out-of-pocket costs and expenses of
defending itself against any claim of liability, except in
those cases where Escrow Agent has been guilty of gross
negligence or willful misconduct (provided, that in no event
will the Transaction Parties be liable for any allocated cost
or expense of persons regularly employed by Escrow Agent).
Anything in this Agreement to the contrary notwithstanding,
in no event will Escrow Agent be liable for special, indirect
or consequential loss or damage of any kind whatsoever
(including, but not limited to, lost profits), even if Escrow
Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(f) The Transaction Parties are providing
Escrow Agent with their Tax Identification Number (TIN) as
assigned by the Internal Revenue Service below their
signatures to this Agreement. All Earnings will be allocated
and paid as provided herein and reported by the recipient to
the Internal Revenue Service as having been so allocated and
paid. Escrow Agent shall submit required reports to the
Internal Revenue Service in accordance with current
information reporting requirements. Anything to the contrary
in this Agreement notwithstanding, Sellers' Escrow Shares
will at all times be owned of record and beneficially by
Sellers and Sellers will at all times be entitled to exercise
sole voting power and, subject to SECTION 4, the power to
dispose of or transfer, Sellers' Escrow Shares.
(g) In the event funds transfer written
instructions are given (other than in writing at the time of
execution of the Agreement), whether in writing or by
telecopier, Escrow Agent is authorized, but not obligated, to
seek confirmation of such instructions by telephone call-back
to one person from each party designated on SCHEDULE I to
this Agreement, and Escrow Agent may rely upon the
confirmations of anyone purporting to be the persons so
designated. The persons and telephone numbers for call-backs
may be changed only In a writing actually received and
acknowledged by Escrow Agent. The parties to this Agreement
acknowledge that such security procedure is commercially
reasonable.
(h) This Agreement will be governed by and
construed in accordance with the law of the State of Alaska
without regard to its principles of conflicts of laws and any
action brought under this Agreement will be brought in the
courts of the State of Alaska, located in the Third Judicial
District at Anchorage. Each party hereto irrevocably waives
any objection on the grounds of venue, forum non-convenience
or any similar grounds and irrevocably consents to service of
process by mail or In any other manner permitted by
applicable law and consents to the of such courts.
(i) Except as otherwise specified herein,
each of the parties will pay all costs and expenses incurred
or to be incurred by it in negotiating and preparing this
Escrow Agreement and in closing and carrying out the
transactions contemplated by this Escrow Agreement.
(j) If any legal action or proceeding is
brought for the enforcement of this Escrow Agreement, or
because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of
this Escrow Agreement, the successful or prevailing party or
parties will be entitled to recover reasonable attorneys'
fees and other costs incurred in that action or proceeding,
in addition to any other relief to which it or they may be
entitled.
The parties have caused this Agreement to be signed
the day and year first above written.
NATIONAL BANK OF ALASKA,
By:
---------------------------------
Xxxxxxx X. Xxxxxx, Vice President
SELLERS:
ALASKAN CABLE NETWORK/FAIRBANKS,
INC.
By:
---------------------------------
Xxxxxx Xxxxx, House Counsel
TIN: 00-0000000
ALASKAN CABLE NETWORK/JUNEAU, INC.
By:
---------------------------------
Xxxxxx Xxxxx, House Counsel
TIN: 00-0000000
ALASKAN CABLE NETWORK/
KETCHIKAN-SITKA, INC.
By:
---------------------------------
Xxxxxx Xxxxx, House Counsel
TIN: 00-0000000
GCI:
GENERAL COMMUNICATION, INC.
By:
---------------------------------
Xxxx X. Xxxxxx, Senior Vice
President
TIN: 92-007273
Schedule 1
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Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
If to GCI:
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Name Telephone Number
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Xxxx X. Xxxxxx (000) 000-0000
If to Sellers:
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Name Telephone Number
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Xxxxxx Xxxxx (000) 000-0000
Telephone call-backs will be made to each of GCI and Sellers
if joint instructions are required pursuant to the Agreement.
EXHIBIT A TO ESCROW AGREEMENT
FORM OF GCI CLAIM CERTIFICATE
The undersigned, on behalf of General Communication,
Inc. ("GCI"), certifies as follows:
A. GCI, Sellers et al. are parties to that certain
Asset Purchase Agreement dated as of April 15, 1996.
B. GCI in good faith believes that Sellers (as defined
in the Purchase Agreement) have breached certain
representations, warranties, covenants or obligations made by
Sellers in the Purchase Agreement or are obligated to
indemnify GCI with respect to certain claims. In particular,
GCI in good faith is asserting claims against Sellers based
on the followings:
[reasonably detailed description of claim and reference to
portion of Purchase Agreement in question to be inserted by
GCI at time of delivery of Certificate].
C. Attached to this Certificate is a copy of GCI's
notice to Sellers relating to the claim pursuant to the
Purchase Agreement. GCI intends to pursue the claim with due
diligence. GCI in good faith believes the amount of its
claim described in its notice is $ .
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D. GCI is furnishing this Certificate to National Bank
of Alaska which is acting as Escrow Agent pursuant to the
terms of an Escrow Agreement dated October 31, 1996 among
GCI, Sellers and National Bank of Alaska has delivered or
contemporaneously is delivering a copy of this Certificate to
Sellers as well.
This Certificate is signed this day of ,
-- ---------
199 .
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GENERAL COMMUNICATION, INC.
By:
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Name:
----------------------------
Title:
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Receipt of this Certificate is acknowledged this day
--
of , 199 .
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NATIONAL BANK OF ALASKA
By:
------------------------------
Name:
----------------------------
Title:
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EXHIBIT B TO ESCROW AGREEMENT
FORM OF SELLER'S CLAIM CERTIFICATE
The undersigned, on behalf of ("Seller")
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certifies as follows:
A. Alaskan Cable Network/Fairbanks, Inc. ("ACNFI"),
Alaskan Cable Network/Juneau, Inc. ("ACNJI") and Alaskan
Cable Network/Ketchikan-Sitka, Inc. ("ACNKSI") and General
Communication, Inc. ("GCI") are parties to that certain Asset
Purchase and Sale Agreement dated as of April 15, 1996
("Purchase Agreement").
B. Seller in good faith believes that GCI has breached
certain representations, warranties, covenants or obligations
made by GCI in the Purchase Agreement or is obligated to
indemnify Seller, with respect to certain claims. In
particular, Seller in good faith is asserting claims against
GCI based on the following:
[reasonably detailed description of claim and reference to
portion of Purchase Agreement in question to be inserted by
Seller at time of delivery of Certificate].
C. Attached to this Certificate is a copy of Seller's
notice to GCI relating to the claim pursuant to the Purchase
Agreement. Seller intends to pursue the claim with due
diligence. Seller in good faith believes the amount of the
claim described in its notice is $ .
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D. Seller is furnishing this Certificate to National
Bank of Alaska which is acting as Escrow Agent pursuant to
the terms of an Escrow Agreement dated October 31, 1996 among
GCI, Seller and National Bank of Alaska. Seller has
delivered or contemporaneously is delivering a copy of this
Certificate to GCI as well.
This Certificate is signed this day of ,
-- ---------
199 .
-
SELLER:
---------------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Receipt of this Certificate is acknowledged this __ day
of , 199 .
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NATIONAL BANK OF ALASKA
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
