OF LIMITATIONS FOR THE FCC TO
DETERMINE OR IMPOSE A FORFEITURE PENALTY AGAINST SUCH RENEWAL STATION IN
CONNECTION WITH ANY PENDING COMPLAINTS, INVESTIGATIONS, LETTERS OF INQUIRY OR
OTHER PROCEEDINGS, INCLUDING COMPLAINTS THAT SUCH RENEWAL STATION AIRED
PROGRAMMING THAT CONTAINED OBSCENE, INDECENT OR PROFANE MATERIAL (A "TOLLING
AGREEMENT").
EGI-TRB AND THE COMPANY SHALL CONSULT IN GOOD FAITH WITH EACH
OTHER PRIOR TO ENTERING INTO ANY SUCH TOLLING AGREEMENT.
SECTION 5.8
CONTROL OF OPERATIONS.
NOTHING CONTAINED IN THIS
AGREEMENT SHALL BY ITS TERMS GIVE EGI-TRB OR GUARANTOR, DIRECTLY OR INDIRECTLY,
THE RIGHT TO CONTROL OR DIRECT THE COMPANY'S OPERATIONS.
SECTION 5.9
SHAREHOLDER LITIGATION.
THE COMPANY SHALL GIVE EGI-TRB
THE OPPORTUNITY TO PARTICIPATE, SUBJECT TO A CUSTOMARY JOINT DEFENSE AGREEMENT,
IN, BUT NOT CONTROL, THE DEFENSE OR SETTLEMENT OF ANY SHAREHOLDER LITIGATION
AGAINST THE COMPANY OR ITS DIRECTORS OR OFFICERS RELATING TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR THE MERGER AGREEMENT; PROVIDED, HOWEVER, THAT
NO SUCH SETTLEMENT FOR AN AMOUNT IN EXCESS OF AVAILABLE INSURANCE
15
coverage shall be agreed to without the consent of EGI-TRB, which consent shall
not be unreasonably withheld or delayed.
SECTION 5.10
MERGER AGREEMENT COVENANTS.
REFERENCE IS HEREBY MADE TO
THE COVENANTS OF THE COMPANY SET FORTH IN SECTIONS 2.1(E) [DISSENTERS' RIGHTS];
5.1 [CONDUCT OF BUSINESS BY THE COMPANY], 5.2 [INVESTIGATION], 5.3 [NO
SOLICITATION], 5.4 [PROXY STATEMENT; COMPANY MEETING], SECTION 5.5 [STOCK
OPTIONS AND OTHER STOCK-BASED AWARDS; EMPLOYEE MATTERS], 5.11 [FINANCING], 5.12
[SPECIFIED DIVESTITURES], 5.13 [FCC MATTERS], 5.14 [COMPANY OFFER], SECTION 5.15
[EAGLES EXCHANGE] AND IN THE PROVISOS TO SECTION 7.1(G) OF THE MERGER
AGREEMENT.
THE COMPANY HEREBY MAKES EACH OF SUCH COVENANTS TO EGI-TRB AND
GUARANTOR AS IF EACH SUCH COVENANT WERE HEREINAFTER SET FORTH IN FULL, WITH
REFERENCES THEREIN TO THE ESOP BEING CHANGED TO REFERENCES TO EGI-TRB AND
GUARANTOR.
EGI-TRB AND GUARANTOR AGREE THAT ALL INFORMATION PROVIDED TO IT OR
ITS REPRESENTATIVES PURSUANT TO SECTION 5.2 OF THE MERGER AGREEMENT AS
INCORPORATED HEREIN SHALL BE DEEMED TO BE EVALUATION MATERIAL, AS SUCH TERM IS
USED IN, AND SHALL BE TREATED IN ACCORDANCE WITH, THE CONFIDENTIALITY
AGREEMENT.
WITH RESPECT TO THE OFFER, IN ADDITION TO THE COVENANTS SET FORTH IN
SECTION 5.14 OF THE MERGER AGREEMENT, THE COMPANY AGREES THAT WITHOUT THE PRIOR
WRITTEN CONSENT OF EGI-TRB, NO CHANGE WILL BE MADE TO THE OFFER THAT CHANGES THE
FORM OF CONSIDERATION TO BE PAID PURSUANT TO THE OFFER, INCREASES THE OFFER
PRICE OR THE NUMBER OF COMPANY SHARES SOUGHT IN THE OFFER, OR WAIVES ANY OF THE
CONDITIONS TO THE OFFER SET FORTH IN SECTION 5.14 OF THE COMPANY DISCLOSURE
SCHEDULE.
SECTION 5.11
BOARD APPOINTMENT.
THE COMPANY AGREES TO CAUSE SAMUEL
ZELL TO BE APPOINTED TO ITS BOARD OF DIRECTORS EFFECTIVE AS OF THE FIRST CLOSING
DATE, AND BE ELECTED TO SERVE AS THE CHAIRMAN OF THE COMPANY'S BOARD OF
DIRECTORS EFFECTIVE AS OF, AND FROM AND AFTER, THE SECOND CLOSING DATE, IN EACH
CASE IF HE IS WILLING AND ABLE TO SERVE IN SUCH CAPACITY.
IN CONNECTION
THEREWITH, THE COMPANY AGREES TO APPOINT