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EXHIBIT 10.191
ASSET PURCHASE AGREEMENT
by and among
TRAVEL CHANNEL ACQUISITION CORPORATION,
PROJECT DISCOVERY, INC.,
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
and
DISCOVERY COMMUNICATIONS, INC.
Dated as of November 24, 1997
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ASSET PURCHASE AGREEMENT
Dated as of November 24, 1997
by and among
TRAVEL CHANNEL ACQUISITION CORPORATION,
PROJECT DISCOVERY, INC.,
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
and
DISCOVERY COMMUNICATIONS, INC.
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TABLE OF CONTENTS
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SECTION 1. CERTAIN DEFINITIONS.................................................................1
1.1 Terms Defined in this Section..............................................................1
1.2 Terms Defined Elsewhere in this Agreement..................................................4
1.3 Terms Generally............................................................................5
SECTION 2. ACQUISITION OF ASSETS AND CONSIDERATION.............................................6
2.1 Acquisition of Assets......................................................................6
2.2 Consideration..............................................................................7
2.3 Allocation of Consideration................................................................7
2.4 Assumption of Liabilities and Obligations..................................................8
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PCC AND SELLER...................................8
3.1 Organization, Standing, and Authority......................................................8
3.2 Authorization and Binding Obligation.......................................................9
3.3 Absence of Conflicting Agreements; Consents................................................9
3.4 Licenses..................................................................................10
3.5 Real Property.............................................................................10
3.6 Tangible Personal Property................................................................10
3.7 Contracts.................................................................................11
3.8 Intangible Property.......................................................................11
3.9 Financial Statements......................................................................12
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3.10 Personnel................................................................................12
3.11 Claims and Legal Actions.................................................................14
3.12 Compliance with Laws.....................................................................14
3.13 Environmental Matters....................................................................14
3.14 Transactions with Affiliates; Completeness of Assets.....................................15
3.15 Cable Subscribers........................................................................15
3.16 Conduct of Business......................................................................16
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER........................................17
4.1 Organization, Standing, and Authority.....................................................17
4.2 Authorization and Binding Obligation......................................................17
4.3 Absence of Conflicting Agreements.........................................................17
SECTION 5. SPECIAL COVENANTS AND AGREEMENTS...................................................18
5.1 Confidentiality...........................................................................18
5.2 Cooperation...............................................................................18
5.3 Access to Books and Records...............................................................19
5.4 Bulk Sales Law............................................................................19
5.5 No Inconsistent Action....................................................................19
SECTION 6. CONDITIONS TO OBLIGATIONS OF PARTIES AT CLOSING....................................19
6.1 Conditions to Obligations of Purchaser....................................................19
6.2 Conditions to Obligations of Seller.......................................................20
SECTION 7. CLOSING AND CLOSING DELIVERIES.....................................................20
7.1 Closing...................................................................................20
7.2 Deliveries by Seller......................................................................21
7.3 Deliveries by Purchaser...................................................................21
SECTION 8. TERMINATION........................................................................22
8.1 Termination by Seller.....................................................................22
8.2 Termination by Purchaser..................................................................22
8.3 Rights on Termination.....................................................................23
8.4 Specific Performance......................................................................23
8.5 Attorneys' Fees...........................................................................23
SECTION 9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES......23
9.1 Representations and Warranties............................................................23
9.2 Indemnification by PCC....................................................................24
9.3 Indemnification by DCI....................................................................25
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9.4 Procedure for Indemnification.............................................................25
9.5 Certain Limitations.......................................................................26
9.6 Remedies..................................................................................27
SECTION 10. MISCELLANEOUS.....................................................................27
10.1 Fees and Expenses........................................................................27
10.2 Notices..................................................................................28
10.3 Benefit and Binding Effect...............................................................29
10.4 Further Assurances.......................................................................29
10.5 GOVERNING LAW............................................................................29
10.6 Headings.................................................................................29
10.7 Entire Agreement.........................................................................29
10.8 Waiver of Compliance; Consents...........................................................30
10.9 Counterparts.............................................................................30
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of November 24, 1997, by and among
TRAVEL CHANNEL ACQUISITION CORPORATION, a Delaware corporation ("Seller"),
PROJECT DISCOVERY, INC., a Delaware corporation ("Purchaser"), ▇▇▇▇▇▇
COMMUNICATIONS CORPORATION, a Delaware corporation and the parent company of
Seller, solely with respect to the specific obligations thereof set forth herein
("PCC"), and DISCOVERY COMMUNICATIONS, INC., a Delaware corporation and the
parent company of Purchaser, solely with respect to the specific obligations
thereof set forth herein ("DCI").
PRELIMINARY STATEMENT
Seller acquired substantially all of the assets owned and rights held
by The Travel Channel, Inc. ("Travel") for use in the business and operations of
the Channel (defined below) pursuant to that certain Asset Acquisition
Agreement, dated as of June 13, 1997 (the "Landmark Agreement"), by and among
PCC, Travel and Landmark Communications, Inc. ("Landmark"). Seller now desires
to convey to Purchaser, and Purchaser wishes to acquire therefrom, a twenty-five
percent (25%) undivided interest in such assets, for the consideration and on
the terms and conditions set forth in this Agreement.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement, the parties hereto, intending to be bound
legally, agree as follows:
SECTION 1. CERTAIN DEFINITIONS
1.1 Terms Defined in this Section
The following terms, as used in this Agreement, have the meanings set
forth in this Section:
"Affiliate," with respect to any Person, means any other Person
controlling, controlled by, or under common control with such Person. For
purposes of this definition, the term "control" means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise, and the terms "controlled by" and "under common control
with" have meanings corresponding to the meaning of "control."
"Agreement" means this Asset Purchase Agreement, as it may be amended
from time to time.
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"Assumed Contracts" means all Contracts listed on Schedule 3.7 and the
Contracts entered into by Seller in the ordinary course of business between July
11, 1997 and the Closing Date.
"Business Day" means any day (other than a day which is a Saturday or
Sunday) on which banks are permitted to be open for business in the City of New
York.
"Channel" means The Travel Channel, a cable television network
providing viewers in the United States and certain of its territories and
possessions with programming relating to leisure travel and related topics
through original, co-produced, and acquired non-fiction programming.
"Closing" means the consummation of the acquisition of the Assets
pursuant to this Agreement, in accordance with the provisions of Section 7.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 7.
"Code" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"Consents" means the consents, permits, or approvals of governmental
authorities and other third parties that are necessary to transfer the Assets to
the Purchaser, if applicable, or otherwise to consummate the transactions
contemplated by this Agreement and the LLC Agreement in compliance with any
provision of law or the terms of any mortgage, indenture, lease, contract,
agreement, instrument, license, or permit to which any party to this Agreement
is a party or by which any party to this Agreement or its properties may be
bound legally, regardless whether the obtaining of such consent, permit, or
approval is a condition to the obligations of any party at the Closing under
this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses, and
other agreements, commitments, or arrangements (including leases for personal or
real property and employment agreements), written or oral, to which Seller is a
party or which are binding upon Seller and that relate to or affect the Assets
or the business or operations of the Channel, and that are in effect on the date
of this Agreement.
"Effective Time" means 12:01 a.m., Eastern time, on the Closing Date.
"Environmental Laws" means all currently effective federal, state,
local, and foreign statutes, regulations, ordinances, and other provisions
having the force or effect of law, all judicial and administrative orders and
determinations, and all common law concerning public health, and pollution or
protection of the environment, including all those relating to the presence,
use, production, generation, handling, transportation, treatment, storage,
disposal,
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distribution, labeling, testing, processing, discharge, release, threatened
release, control, or cleanup of any hazardous materials, substances, or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Intangible Property" means any trademark, trade name, logo, service
▇▇▇▇, brand ▇▇▇▇, brand name, computer program, database, industrial design,
copyright, invention, drawing, customer list, proprietary know-how, or
information owned by Seller, and Seller's rights to use any trademark, trade
name, logo, service ▇▇▇▇, brand ▇▇▇▇, brand name, computer program, database,
industrial design, copyright, invention, drawing, customer list, proprietary
know-how, or information that is not owned by Seller, for use in connection with
the conduct of the business or operations of the Channel (including the name
"The Travel Channel" and all rights relating to the use of such name and any
logos or characters developed by or on behalf of Travel and Seller for use in
connection with the Channel), and all registrations thereof and pending
applications therefor.
"LLC" means The Travel Channel, L.L.C., a Delaware limited liability
company.
"LLC Agreement" means the Limited Liability Company Agreement, dated as
of even date herewith between Purchaser and Seller, as members of the LLC.
"Licenses" means all licenses, permits, construction permits,
registrations, and other authorizations issued by any federal, state, or local
governmental authorities to Seller, used or held by Seller for use in connection
with the conduct of the business or operations of the Channel, and all
applications therefor.
"Material Adverse Effect" means a material adverse effect on the
business, results of operations, properties, operations, financial condition,
assets, or liabilities of the Channel, taken as a whole.
"Permitted Liens" means, with respect to any Asset, (a) liens for
current taxes not yet due and payable or taxes that in good faith are being
contested or litigated and are not material to the business or operations of the
Channel, (b) landlord's liens for property taxes not delinquent, (c) statutory
liens that were created in the ordinary course of business, and (d) easements
and restrictions that are disclosed on Schedule 3.5.
"Person" means an individual, corporation, association, partnership,
joint venture, trust, estate, limited liability company, limited liability
partnership, governmental entity, or other entity or organization.
"Real Property" means all real property, and all buildings, fixtures,
and other improvements thereon, whether or not owned or held by Seller, used in
the business or operations of the Channel.
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"Real Property Interests" means all interests in real property,
including fee estates, leaseholds and subleaseholds, purchase options,
easements, licenses, rights to access, and rights of way, and all buildings, and
other improvements thereon, used or held by Seller for use in connection with
the conduct of the business or operations of the Channel.
"Tangible Personal Property" means all machinery, equipment, tools,
vehicles, furniture, fixtures, leasehold improvements, office equipment,
materials and supplies, plant, inventory, video libraries and archives, spare
parts, and other tangible personal property of every kind and description used
or held by Seller for use in connection with the conduct of the business or
operations of the Channel.
"Taxes" means all taxes, charges, fees, levies, or other assessments
imposed by any federal, state, local, or foreign taxing authority, whether
disputed or not, including income, capital, estimated, excise, property, sales,
transfer, withholding, employment, payroll, and franchise taxes and any
interest, penalties, or additions attributable to or imposed on or with respect
to such assessments.
"Transponder Agreement" means the C-4 Satellite Transponder Service
Agreement between GE American Communications, Inc. and Seller, as assignee,
dated as of November 9, 1990, as amended on April 7, 1997.
1.2 Terms Defined Elsewhere in this Agreement
For purposes of this Agreement, the following terms have the meanings
set forth in the sections indicated:
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Term Section
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Affiliation Agreements Section 3.7
Assets Section 2.1
Benefit Arrangements Section 3.10(a)(iii)
Claimant Section 9.4(a)
Consideration Section 2.2
DCI Introductory Paragraph
Employees Section 3.10(a)
ERISA Affiliate Section 3.10(c)
Indemnifying Party Section 9.4(a)
Landmark Preliminary Statement
Landmark Agreement Preliminary Statement
Landmark Financial Statements Section 3.9
Losses Section 9.2
PCC Introductory Paragraph
Pension Plan Section 3.10(b)
Programming Agreements Section 3.7
Purchaser Introductory Paragraph
Seller Introductory Paragraph
Travel Preliminary Statement
TCAC Financial Statements Section 3.9
Welfare Plan Section 3.10(a)(i)
1.3 Terms Generally
The definitions in Section 1.1 and elsewhere in this Agreement shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context requires, any pronoun includes the corresponding masculine,
feminine, and neuter forms. The words "include," "includes," and "including" are
not limiting. Any reference in this Agreement to a "day" or number of "days"
(without the explicit qualification of "Business") shall be interpreted as a
reference to a calendar day or number of calendar days. If any action or notice
is to be taken or
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given on or by a particular calendar day, and such calendar day is not a
Business Day, then such action or notice shall be deferred until, or may be
taken or given on, the next Business Day. As used in this Agreement, "knowledge"
of Seller is limited to the actual knowledge of: ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, a board member of PCC.
SECTION 2. ACQUISITION OF ASSETS AND CONSIDERATION
2.1 Acquisition of Assets
(a) Subject to the terms and conditions set forth in this
Agreement (including the representations and warranties made and relied upon
hereunder), Seller hereby agrees to sell, assign, transfer, convey, and deliver
to Purchaser on the Closing Date, and Purchaser agrees to acquire, a twenty-five
percent (25%) undivided interest in and to all of the tangible and intangible
assets used or held by Seller, or any Affiliate thereof, for use in connection
with the conduct of the business or operations of the Channel (the "Assets"),
free and clear of any claims, liabilities, liens, security interests, mortgages,
pledges, encumbrances, or restrictions, except for Permitted Liens, including,
without limitation, the following:
(i) The Tangible Personal Property;
(ii) The Real Property Interests;
(iii) The Licenses;
(iv) The Assumed Contracts;
(v) The Intangible Property;
(vi) Proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints, and schematics relating to the business
or operations of the Channel;
(vii) All claims or causes of action of Seller to
the extent they relate to the Assets;
(viii) Copies of all books and records, including
files, books of account, computer programs, tapes, electronic data processing
software, customer lists, and other records
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relating to the Assets or the business or operations of the Channel, including
executed copies of the Assumed Contracts and Seller's database of program
rights;
(ix) Insurance proceeds arising out of damage,
destruction, or loss of any Asset to the extent of any damage or destruction
that remains unrepaired, or to the extent any destroyed property or asset that
remains unreplaced, at the Closing Date;
(x) All programs, program rights, and
programming materials and elements of whatever form or nature owned or held by
Seller, whether recorded on film, tape, or any other medium or intended for live
performance, broadcast, or other manner of presentation and whether completed or
in production (such as outlines, scripts, or otherwise);
(xi) All rights under manufacturers' and
vendors' warranties relating to Assets; and
(xii) All goodwill in, and going concern value of,
the Channel.
(b) The following shall be excluded from the definition
of Assets:
(i) All receivables of Seller arising with
respect to an event occurring prior to the Effective Time;
(ii) All prepaid expenses paid in respect of the
period occurring after the Effective Time; and
(iii) All security deposits made by Seller.
(c) In the event that Seller is unable to transfer to
Purchaser a twenty-five percent (25%) undivided interest in any Asset pursuant
to this Section 2.1, then Seller shall transfer to Purchaser an additional
twenty-five percent (25%) undivided interest in another Asset or Assets as shall
be acceptable to Purchaser, so that on the Closing Date, Purchaser shall receive
from Seller in the aggregate a twenty-five percent (25%) undivided interest in
the Assets based on the fair market value of the Assets on the Closing Date.
2.2 Consideration
In consideration of the sale, transfer, conveyance, assignment, and
delivery to Purchaser of a twenty-five percent (25%) undivided interest in the
Assets pursuant to this Agreement, Purchaser shall pay to or for the account of
Seller, the sum of $20,000,000 (the "Consideration"), by wire transfer of
same-day funds in U.S. Dollars, pursuant to wire instructions which shall be
delivered by Seller to Purchaser at least two Business Days prior to the Closing
Date.
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2.3 Allocation of Consideration
The parties agree that the Consideration payable by Purchaser to Seller
at the Closing pursuant to this Agreement shall be allocated among the Assets in
accordance with Section 1060 of the Code and Temporary Treasury Regulation
Section 1.1060-1T. The parties will cooperate with each other in arriving at
such allocations, and each party shall provide a copy of its allocation to the
other party, upon request thereof.
2.4 Assumption of Liabilities and Obligations
All obligations and liabilities under the Licenses and Assumed
Contracts, whether occurring prior to or after the Effective Time, shall remain
the obligations and liabilities of Seller and shall be assumed by the LLC in
accordance with the LLC Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PCC AND SELLER
PCC and Seller, jointly and severally, represent and warrant to
Purchaser as follows:
3.1 Organization, Standing, and Authority
Each of PCC and Seller is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware. Seller
has all requisite corporate power and authority (a) to own, lease, and use the
Assets as now owned, leased, and used by it, (b) to conduct the business and
operations of the Channel as now conducted by it, and (c) to execute and deliver
this Agreement and the documents contemplated hereby, and to perform and comply
with all of the terms, covenants, and conditions to be performed and complied
with by Seller hereunder and thereunder. Seller is duly qualified to transact
business in each jurisdiction in which the nature of its business makes such
qualification necessary except where failure to so qualify would not have a
Material Adverse Effect or impair or hinder the ability of Seller to perform its
obligations under this Agreement. PCC has all requisite corporate power and
authority to execute and deliver this Agreement and the documents contemplated
hereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by PCC hereunder and thereunder.
PCC is duly qualified to transact business in each jurisdiction in which the
nature of its business makes such qualification necessary except where failure
to so qualify would not impair or hinder the ability of PCC to perform its
obligations under this Agreement.
3.2 Authorization and Binding Obligation
The execution, delivery, and performance of this Agreement by each of
PCC and Seller and the performance by PCC and Seller of their respective
obligations hereunder have been duly authorized by all necessary corporate
actions on the part of PCC and Seller. This Agreement
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has been duly executed and delivered by each of PCC and Seller and constitutes
the legal, valid, and binding obligation of each of PCC and Seller, enforceable
against each of PCC and Seller in accordance with its terms except as the
enforceability of this Agreement may be affected by bankruptcy, insolvency, or
similar laws affecting creditors' rights generally, and by judicial discretion
in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements; Consents
Subject to obtaining the Consents listed on Schedule 3.3, the
execution, delivery and performance of this Agreement and the documents
contemplated hereby by each of PCC and Seller (with or without the giving of
notice, the lapse of time, or both), assuming for the purposes of this Section
3.3 only that the interest in the Assets being transferred hereby is a 100%
undivided interest in the Assets, (a) do not require the consent of any third
party (including any governmental or regulatory authority); (b) will not
conflict with any provision of the Certificate of Incorporation or By-Laws of
either PCC or Seller; (c) will not violate or result in a breach of, or
contravene any law, judgment, order, ordinance, injunction, decree, rule,
regulation, or ruling of any court or governmental instrumentality applicable to
either PCC or Seller; (d) will not violate, conflict with, or result in a
material breach of any terms of, constitute grounds for termination of,
constitute a default under, or result in the acceleration of any performance
required by the terms of, any mortgage, indenture, lease, contract, agreement,
instrument, license, or permit to which either PCC or Seller is a party or by
which either PCC or Seller or their respective properties may be bound legally,
with such exceptions which, singly or in the aggregate, are not material and do
not result in a material adverse change in the financial condition, or in the
earnings, business affairs or business prospects of PCC or Seller, or cause the
unwinding of the transactions contemplated under this Agreement or the
contributions contemplated under the LLC Agreement; and (e) will not create any
claim, liability, mortgage, lien, pledge, condition, charge, encumbrance, or
other security interest upon any of the Assets.
3.4 Licenses
Schedule 3.4 is a true and complete list as of the date of this
Agreement of all Licenses. Each License has been validly issued, and Seller is
the authorized legal holder thereof. The Licenses are in full force and effect,
and the conduct of the business and operations of the Channel is in accordance
therewith in all material respects. As of the date of this Agreement, there is
no proceeding pending or, to Seller's knowledge, threatened, seeking the
revocation or limitation of any Licenses. Seller is the holder of all Licenses
necessary or appropriate to enable it to continue to conduct the business of the
Channel as now conducted.
3.5 Real Property
Schedule 3.5 contains a complete and accurate description of all the
Real Property and Seller's interests therein (including street address (where
known), legal description (where known), owner, and Seller's use thereof). No
fee estates are included in the Real Property
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Interests. Except as set forth on Schedule 3.5, Seller has good title to all
Real Property Interests, free and clear of all liens, security interests,
mortgages, pledges, encumbrances, or restrictions on the Real Property
Interests, except for Permitted Liens; provided, however, that neither PCC or
Seller makes any representation or warranty hereby regarding any liens, security
interests, mortgages, pledges, encumbrances, or restrictions on any fee estate
underlying any Real Property Interest. All Real Property (including the
improvements thereon) is in good condition and repair consistent with its
present use and is available for immediate use in the conduct of the business
and operations of the Channel. Except for that portion of the Real Property and
Real Property Interests subject to leases where Seller is lessor or sublessor
(as identified on Schedule 3.5), Seller is in possession of the Real Property.
As of the date of this Agreement there are no pending or, to the knowledge of
Seller, threatened condemnation or appropriation proceedings against any of the
Real Property, or against the Real Property Interests. Seller has full legal and
practical access to all Real Property. With respect to each leasehold or
subleasehold interest included in the Real Property Interests, Seller has
enforceable rights to nondisturbance and quiet enjoyment, and no third party
holds any interest in the leased premises with the right to foreclose upon
Seller's leasehold or subleasehold interest.
3.6 Tangible Personal Property
Schedule 3.6 lists all material items of Tangible Personal Property
used to conduct the business and operations of the Channel as now conducted.
Except as described in Schedule 3.6 and except for Tangible Personal Property
leased pursuant to any Assumed Contract, Seller owns and has good title to each
item of Tangible Personal Property, and none of the Tangible Personal Property
is subject to any liens, security interests, mortgages, pledges, encumbrances,
or restrictions, except for Permitted Liens. The items of Tangible Personal
Property listed on Schedule 3.6 are in good working condition (ordinary wear and
tear excepted) and are available for immediate use in the business and
operations of the Channel.
3.7 Contracts
Schedule 3.7 is a true and complete list as of the date of this
Agreement of all Contracts which, as of the date of this Agreement, were either
assigned to or assumed by Seller pursuant to the Landmark Agreement and are
still in existence as of the Closing Date, or were entered into by Seller after
the consummation of the transactions contemplated by the Landmark Agreement (the
"Landmark Purchase"), exclusive of Contracts entered into by Seller in the
ordinary course of business after the Landmark Purchase of which Seller does not
have actual knowledge ("Ordinary Course Contracts"). Schedule 3.7 includes all
(other than Ordinary Course Contracts) of Seller's (a) cable television system
affiliation agreements ("Affiliation Agreements"), and other agreements or
understandings with cable television system operators, (b) program license
agreements and other agreements with respect to the production, development,
broadcast, distribution, or other use of television programs, films, music, and
other audio, visual, and audio-visual works ("Programming Agreements"), (c)
leases and rental agreements, (d) agreements to buy or sell advertising or
engage in other promotional activities. Seller has delivered or made available
to Purchaser true and complete copies of all written
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Assumed Contracts and accurate descriptions of all oral Assumed Contracts listed
on Schedule 3.7, other than Ordinary Course Contracts. Except as disclosed on
Schedule 3.7, to the knowledge of Seller, all of the Assumed Contracts are in
full force and effect and are valid and binding agreements of the parties
thereto, enforceable in accordance with their terms. Except as disclosed on
Schedule 3.7, neither Seller nor, to the knowledge of Seller, any other party is
in default in any material respect under any of the Assumed Contracts, nor does
any condition exist that with the notice or lapse of time or both would
constitute such a default. Except for the need to obtain the Consents listed on
Schedule 3.3 (however, this representation and warranty does not create any
obligation on the part of Seller to obtain any such Consent or make the
obtaining of such Consent a condition to Closing with respect to any party
hereto except as expressly set forth elsewhere in this Agreement), Seller has
full legal power and authority to assign its rights under the Assumed Contracts
to Purchaser and to the LLC, in accordance with this Agreement and the
contribution contemplated under the LLC Agreement, and such assignments together
will not affect the validity, enforceability, or continuation of any of the
Assumed Contracts. Except as disclosed on Schedule 3.7, as of the date of this
Agreement, to the knowledge of Seller, no party to any Assumed Contract has
informed Seller of its intention (a) to terminate such Assumed Contract or amend
the terms thereof, (b) to refuse to renew the Assumed Contract upon expiration
of its term, or (c) to renew the Assumed Contract upon expiration only on terms
and conditions that are more onerous than those now existing.
3.8 Intangible Property
Schedule 3.8 is a list of all Intangible Property and indicates, with
respect to each item of Intangible Property, the owner thereof and, if
applicable, the name of the licensor and licensee thereof. Except as set forth
on Schedule 3.8, to Seller's knowledge, each item of Intangible Property is in
good standing and no other Person has any claim of ownership or right of use
with respect thereto. To Seller's knowledge, the use of the Intangible Property
by Seller does not, and the use thereof by the LLC immediately after the Closing
will not, conflict with, infringe upon, violate, or interfere with or constitute
an appropriation of any right, title, interest, or goodwill, including any
intellectual property right, trademark, trade name, service ▇▇▇▇, brand ▇▇▇▇,
brand name, computer program, database, industrial design, copyright, or any
pending application therefor of any other Person, and there have been no claims
made and Seller has not received any notice or otherwise acquired any knowledge
that any item of Intangible Property is invalid or conflicts with the asserted
rights of any Person or has not been used or enforced or has been failed to be
used or enforced in a manner that would result in the abandonment, cancellation,
or unenforceability of any of the Intangible Property. Except as set forth on
Schedule 3.8, Seller is not a party to or bound by any contract, license, or
other agreement relating to the Intangible Property.
3.9 Financial Statements
Seller has furnished Purchaser with true and complete copies of (i) an
unaudited balance sheet and income statement of Landmark or its subsidiary, with
respect to the Channel, as at and for the fiscal years ended December 31, 1996,
December 31, 1995, and December 31, 1994,
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and as at and for the five months ended May 31, 1997 (the "Landmark Financial
Statements") that were delivered to PCC pursuant to the Landmark Agreement, and
(ii) any unaudited balance sheet and income statement of Seller or PCC with
respect to the Channel (the "TCAC Financial Statements") for the period from the
date of the Landmark Agreement to the Closing Date. The Financial Statements, if
any, have been prepared from the books and records of Seller on a consistent
basis in accordance with the accounting principles applied by PCC in preparing
its consolidated financial statements which, on a consolidated basis, have been
prepared in accordance with generally accepted accounting principles and present
fairly, in all material respects, the consolidated financial condition of TCAC
as at their respective dates and the results of operations for the periods then
ended.
3.10 Personnel
(a) Employees and Compensation. Schedule 3.10 contains a true
and complete list as of the date of this Agreement of all employees of Seller
engaged in the business and operations of the Channel (collectively, the
"Employees") and a description of all compensation arrangements affecting them.
Schedule 3.10 also contains a true and complete list of all material employee
benefit plans or arrangements maintained or administered by Seller or to which
Seller contributes or is required to contribute and that cover any Employee,
including any:
(i) "Employee welfare benefit plan," as
defined in Section 3(1) of ERISA (a "Welfare Plan");
(ii) Employee plan that is maintained in
connection with any trust described in Section 501(c)(9) of the Code; and
(iii) Employment, severance, or other similar
contract, arrangement, or policy and each plan or arrangement (written or oral)
providing for insurance coverage (including any self-insured arrangements),
workers' compensation, disability benefits, supplemental unemployment benefits,
vacation benefits, or retirement benefits or for deferred compensation,
profit-sharing, bonuses, stock options, stock appreciation rights, stock
purchases, or other forms of incentive compensation or post-retirement
insurance, compensation, or benefits that is not a Welfare Plan (collectively,
"Benefit Arrangements").
(b) Pension Plans. Except as disclosed in Schedule 3.10, there
is no "employee pension benefit plan," as defined in Section 3(2) of ERISA (a
"Pension Plan"), that is subject to Title IV or ERISA or Section 412 of the
Code, that covers any Employee and to which Seller contributes or is required to
contribute.
(c) Multiemployer Plans. Neither Seller nor any entity
required to be combined with Seller under Section 414(b), Section 414(c),
Section 414(m), or Section 414(o) of the Code (an "ERISA Affiliate") has at any
time been a participant in any "multiemployer pension plan," as defined in
Section 3(37) of ERISA, that covers any Employee.
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(d) Plan Liabilities. Neither Seller nor any ERISA Affiliate
has incurred, or expects to incur as a result of the consummation of the
transactions contemplated under this Agreement, any cost, fee, expense,
liability, claim, suit, obligation, or other damage with respect to any Pension
Plan, any Welfare Plan, or any Benefit Arrangement that could give rise to the
imposition of any liability, cost, fee, expense, or obligation on Purchaser or
any of its Affiliates, and, to Seller's knowledge, no facts or circumstances
exist that could give rise to any such cost, fee, expense, liability, claim,
suit, obligation, or other damage.
(e) Delivery of Copies of Relevant Documents and Other
Information. Seller has delivered or made available to Purchaser true and
complete copies of each of the following documents:
(i) Each Welfare Plan (and, if applicable,
related trust agreements) and all amendments thereto, and each summary plan
description together with any summary of material modifications;
(ii) Each written Benefit Arrangement and
written descriptions thereof that have been distributed to Employees
(including descriptions of the number and level of employees covered thereby);
and
(iii) Each employee handbook or similar document
describing any Pension Plan, Welfare Plan, or Benefit Arrangement applicable to
Employees.
(f) Labor Relations. Except as set forth in Schedule 3.10,
Seller is not a party to or subject to any written or oral employment contract
with any Employee. Seller is not subject to any contract prohibiting the
termination of any Employee. Except as disclosed on Schedule 3.10, no
controversies, disputes, or proceedings are pending or, to Seller's knowledge,
threatened, between Seller and any Employee. No labor union or other collective
bargaining unit represents or, to Seller's knowledge, claims to represent any of
the employees of the Channel. To Seller's knowledge, there is no union campaign
being conducted to solicit cards from employees to authorize a union to request
a National Labor Relations Board Certification election with respect to any
employees at the Channel.
3.11 Claims and Legal Actions
Except as disclosed on Schedule 3.11, as of the date of this Agreement,
there is no claim, legal action, counterclaim, suit, arbitration, or other
legal, administrative, or tax proceeding, nor any order, decree, or judgment, in
progress or pending, or to Seller's knowledge threatened, against or relating to
Seller or any of its Affiliates with respect to the Assets or the business or
operations of the Channel, that could be expected to have a Material Adverse
Effect or impair or hinder the ability of PCC or Seller to perform their
obligations under this Agreement.
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3.12 Compliance with Laws
Seller has complied with the Licenses and all federal, state, and local
laws, rules, regulations, ordinances, judgments, orders, and decrees applicable
or relating to the business and operation of the Channel, except for any
noncompliance that would not have a Material Adverse Effect or impair or hinder
the ability of PCC or Seller to perform their obligations under this Agreement.
3.13 Environmental Matters
(a) Seller and its Affiliates, with respect to the Assets,
have complied and are in compliance with all Environmental Laws. Without
limiting the generality of the foregoing, each of Seller and its Affiliates have
obtained and complied with, or filed timely applications for, and are in
compliance with, all permits, licenses, and other authorizations that are
required pursuant to Environmental Laws for the occupation of the Assets and the
operation of the Channel. Schedule 3.13 is a list of all permits, licenses, and
other authorizations that are required pursuant to Environmental Laws for the
occupation of the Assets and the operation of the Channel.
(b) Neither Seller nor any of its Affiliates, with respect to
the Channel or the Assets, has received any written notice regarding any actual
or alleged violation of Environmental Laws, or any liabilities or potential
liabilities, including any investigatory, remedial, or corrective obligations,
relating to any of them or their facilities arising under Environmental Laws.
(c) To Seller's knowledge, none of the following exists at any
Real Property: (1) underground storage tanks, (2) asbestos-containing material
in any form or condition, (3) materials or equipment containing polychlorinated
biphenyls, or (4) landfills.
(d) Neither Seller nor any of its Affiliates, with respect to
the Channel or the Assets, has treated, stored, disposed of, arranged for or
permitted the disposal of, transported, handled, or released any substance,
including any hazardous substance, or owned or operated any property or facility
in a manner that has given or would give rise to liabilities, including any
liability for response costs, corrective action costs, personal injury, property
damage, or natural resources damages, pursuant to any Environmental Laws.
(e) Neither this Agreement nor the assignment of the Assets
pursuant to the LLC Agreement will result in any obligations for site
investigation or cleanup, or notification to or consent of government agencies
or third parties, pursuant to any "transaction-triggered" or "responsible
property transfer" Environmental Laws.
(f) Neither Seller nor any of its Affiliates, with respect to
the Channel or the Assets, has, either expressly or by operation of law, assumed
or undertaken any liability,
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including any obligation for corrective or remedial action, of any other Person
relating to Environmental Laws.
3.14 Transactions with Affiliates; Completeness of Assets
Except as set forth on Schedule 3.14, there are no agreements relating
to the business or operations of the Channel between Seller and any of its
Affiliates, Seller has not been involved in any material business arrangement or
relationship relating to the Channel or the Assets with any of its Affiliates,
and no Affiliate of Seller owns any property or right, tangible or intangible,
that is used in the business or operations of the Channel. Except as set forth
on Schedule 3.14, the Assets, together with those assets and properties used in
the performance of services by The Weather Channel, Inc. pursuant to the
Services Agreement between Seller and The Weather Channel, Inc., constitute all
tangible and intangible assets and properties necessary for the conduct of the
business and operations of the Channel as now conducted.
3.15 Cable Subscribers
Schedule 3.15 sets forth, with respect to each cable television system
operator so listed, under the column "Network Subs," as of a recent date, the
number of cable system subscribers to which such cable television system
operator makes the Channel available, based upon the Affiliation Agreement with
such cable television system operator (if an Affiliation Agreement with such
cable television system operator exists) and such other information that Seller
reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ relevant to such determination. Schedule 3.15
also designates those cable television system operators that, to Seller's
knowledge, make the Channel available to subscribers without an Affiliation
Agreement.
3.16 Conduct of Business
Since July 11, 1997, Seller has not:
(a) Suffered any damage, destruction, or loss affecting any
assets used or useful in the conduct of the business of the Channel that has had
or would have a Material Adverse Effect;
(b) Except in this Agreement, made or agreed to make any sale,
assignment, lease, or other transfer or disposition of any of the Channel's
assets of the types described in Section 2.1(a) other than in the normal and
usual course of business with suitable replacements being obtained therefor;
(c) Canceled, amended, or modified, or agreed to cancel,
amend, or modify, any Affiliation Agreement or any Programming Agreement that
has had or would have a Material Adverse Effect; or
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(d) Entered into any settlement regarding the breach or
infringement of, any license, patent, copyright, trademark, trade name,
franchise, or similar right, or modified any existing right relating to the
Channel.
Neither PCC or Seller shall be deemed to have made to the Purchaser any
representation or warranty other than as expressly made by PCC or Seller in
Section 3 hereof. Without limiting the generality of the foregoing, and
notwithstanding any otherwise representations and warranties made by PCC or
Seller in Section 3 hereof, neither PCC nor Seller makes any representation or
warranty to Purchaser with respect to any projections, estimates or budgets
heretofore delivered to or made available to Purchaser of future revenues,
expenses or expenditures or future results of operations with respect to PCC,
Seller or the Assets. Except as expressly covered by a representation or
warranty contained in Section 3 hereof, neither PCC or Seller makes any
representation or warranty to Purchaser with respect to any other information or
documents (financial or otherwise) made available to Purchaser or its counsel,
accountants or advisors with respect to PCC, Seller or the Assets.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
4.1 Organization, Standing, and Authority
Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware. Purchaser has all
requisite corporate power and authority to execute and deliver this Agreement
and the documents contemplated hereby, and to perform and comply with all of the
terms, covenants, and conditions to be performed and complied with by Purchaser
hereunder and thereunder.
4.2 Authorization and Binding Obligation
The execution, delivery, and performance of this Agreement by Purchaser
and the performance by Purchaser of its obligations hereunder have been duly
authorized by all necessary actions on the part of Purchaser. This Agreement has
been duly executed and delivered by Purchaser and constitutes the legal, valid,
and binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms except as the enforceability of this Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements
The execution, delivery, and performance by Purchaser of this Agreement
and the documents contemplated hereby (with or without the giving of notice, the
lapse of time, or both): (a) do not require the consent of any third party
(including any governmental or
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regulatory authority); (b) will not conflict with the Certificate of
Incorporation or By-Laws of Purchaser; (c) will not violate, conflict with, or
result in a breach of, or constitute a default under, any law, judgment, order,
injunction, decree, rule, regulation, or ruling of any court or governmental
instrumentality applicable to Purchaser; and (d) will not violate, conflict
with, constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any mortgage, indenture, lease, contract, agreement,
instrument, license, or permit to which Purchaser is a party or by which
Purchaser may be bound legally with such exceptions which, singly or in the
aggregate, are not material and do not result in a material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of Purchaser, or cause the unwinding of the transactions
contemplated under this Agreement or the LLC Agreement.
SECTION 5. SPECIAL COVENANTS AND AGREEMENTS
5.1 Confidentiality
(a) Except as and to the extent required by law or as provided
in Section 5.1(c), each party will keep confidential any information obtained
from the other party in connection with the transactions contemplated by this
Agreement. If this Agreement is terminated, each party will return to the
disclosing party or destroy all information obtained by such party from any
other party in connection with the transactions contemplated by this Agreement.
(b) Except as provided in Section 5.1(c), no party shall
publish any press release or make any other public announcement concerning this
Agreement or the transactions contemplated hereby without the prior written
consent of each other party, which shall not be withheld unreasonably.
(c) Nothing contained in this Agreement shall prevent any
party, after notification to each other party, from making any filings with
governmental authorities, including in connection with any securities filings
with any governmental authorities or exchanges that, in its judgment, may be
required or advisable in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
5.2 Cooperation
Seller and Purchaser shall cooperate fully with each other and their
respective counsel and accountants in connection with any actions required to be
taken as part of their respective obligations under this Agreement, and Seller
and Purchaser shall use commercially reasonable efforts to take or cause to be
taken all actions necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement, including making such filings with governmental and regulatory
authorities,
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providing information, using commercially reasonable efforts to obtain all
necessary or appropriate waivers, consents, and approvals, and executing such
other documents as may be necessary and desirable to the implementation and
consummation of this Agreement, and otherwise use commercially reasonable
efforts to consummate the transaction contemplated hereby and to fulfill their
obligations under this Agreement. Notwithstanding the foregoing, and except as
otherwise expressly provided in this Agreement, Purchaser shall have no
obligation to expend funds to obtain any of the Consents or to agree to any
adverse change in any License or Assumed Contract in order to obtain a Consent
required with respect thereto, and Seller shall not have any obligation to
expend funds to obtain any of the Consents or any estoppel certificates.
5.3 Access to Books and Records
To the extent requested for any reasonable business purposes hereunder,
and subject to the following two sentences of this Section 5.3, (a) Seller shall
provide Purchaser access and the right to copy for a period of five years from
the Closing Date any books and records of Seller (or true and complete copies
thereof) relating to the Channel or the Assets but not included in the Assets,
and (b) Purchaser shall provide Seller the right to request true and complete
copies, for a period of five years after the Closing Date, of any books and
records relating to the Channel or the Assets with respect to periods prior to
the Closing that are included in the Assets. Any party that is required to grant
any other party access and the right to copy any books and records (or true and
complete copies thereof) pursuant to this Section 5.3 may, before doing so,
redact or remove therefrom any information contained therein that does not
relate to the Channel or the Assets. Except as and to the extent required by law
or as provided in Section 5.1(c), each party will keep confidential any
information to which it is given access pursuant to this Section 5.3.
5.4 Bulk Sales Law
Purchaser hereby waives compliance by Seller with the provisions of any
applicable bulk sales laws.
5.5 No Inconsistent Action
No party to this Agreement shall take any action that is inconsistent
with its obligations under this Agreement or that could reasonably be expected
to hinder or delay the consummation of the transactions contemplated by this
Agreement.
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SECTION 6. CONDITIONS TO OBLIGATIONS OF PARTIES AT CLOSING
6.1 Conditions to Obligations of Purchaser
All obligations of Purchaser at the Closing are subject at Purchaser's
option to the fulfillment prior to or at the Closing Date of each of the
following conditions:
(a) Injunction, etc. There shall be no effective injunction,
writ, or preliminary restraining order or any order of any nature issued by a
court or governmental agency of competent jurisdiction to the effect that
transactions contemplated by this Agreement may not be consummated as herein
provided, no proceeding or lawsuit shall have been commenced and be continuing
by any federal or state governmental or regulatory agency for the purpose of
obtaining any such injunction, writ, or preliminary restraining order, and no
written notice directed to either Seller or Purchaser shall have been received
from any such federal or state agency indicating an intent to restrain, prevent,
materially delay, or restructure the transactions contemplated by this
Agreement; provided, however, that Purchaser shall have used all commercially
reasonable efforts to prevent the entry of any such injunction or other order
that may be entered.
(b) Transponder Agreement. The Transponder Agreement shall be
in full force and effect and GE American Communications, Inc. shall have granted
its Consent to the assignment of the Transponder Agreement to the LLC and shall
have executed and delivered an estoppel certificate with respect to the
Transponder Agreement in form and substance reasonably satisfactory to
Purchaser.
(c) LLC Agreement. Seller shall have entered into the LLC
Agreement.
(d) Deliveries. Seller shall have made all the deliveries to
Purchaser set forth in Section 7.2.
6.2 Conditions to Obligations of Seller
All obligations of Seller at the Closing are subject at Seller's option
to the fulfillment prior to or at the Closing Date of each of the following
conditions:
(a) Injunction, etc. There shall be no effective injunction,
writ, or preliminary restraining order or any order of any nature issued by a
court or governmental agency of competent jurisdiction to the effect that
transactions contemplated by this Agreement may not be consummated as herein
provided, no proceeding or lawsuit shall have been commenced and be continuing
by any federal or state governmental or regulatory agency for the purpose of
obtaining any such injunction, writ, or preliminary restraining order, and no
written notice directed to either Seller or Purchaser shall have been received
from any such federal or state agency indicating an intent to restrain, prevent,
materially delay, or restructure the transactions
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contemplated by this Agreement; provided, however, that Seller shall have used
all commercially reasonable efforts to prevent the entry of any such injunction
or other order that may be entered.
(b) Deliveries. Purchaser shall have made all the deliveries
set forth in Section 7.3.
(c) LLC Agreement. Purchaser shall have entered into the LLC
Agreement.
SECTION 7. CLOSING AND CLOSING DELIVERIES
7.1 Closing
(a) Closing Date. Except as otherwise agreed to by Purchaser
and Seller, the Closing shall take place at 10:00 a.m. on November 25, 1997.
(b) Closing Place. The Closing shall be held at the offices of
LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, or any other place that is agreed upon by Purchaser and Seller.
7.2 Deliveries by Seller
Prior to or on the Closing Date, Seller shall deliver to Purchaser the
following, in form and substance reasonably satisfactory to Purchaser and its
counsel:
(a) Transfer Documents. Duly executed instruments of
conveyance and transfer, including bills of sale, motor vehicle titles,
assignments, and other transfer documents that are sufficient to vest good and
marketable title to a twenty-five percent (25%) undivided interest in the Assets
in the name of Purchaser, free and clear of all liens, security interests,
mortgages, pledges, encumbrances, or restrictions (other than any liens,
security interests, mortgages, pledges, encumbrances, or restrictions resulting
from the failure to obtain any Consent), except for liens for current taxes not
yet due and payable and landlord's liens for property taxes not delinquent.
(b) Consents. Copies of all instruments evidencing receipt of
any Consents and estoppel certificates that have been obtained prior to the
Closing (but this delivery requirement does not create any obligation on the
part of Seller to obtain any Consent or estoppel certificate or make the
obtaining of any Consent or estoppel certificate a condition to any party's
obligations at Closing, other than as expressly provided elsewhere in this
Agreement).
(c) Licenses, Contracts, Business Records, Etc. Copies of all
Licenses, Assumed Contracts, blueprints, schematics, working drawings, plans,
projections, engineering records, and all files and records included in the
Assets.
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(d) Opinion of Counsel. An opinion of counsel to Seller dated
as of the Closing Date, substantially in the form of Schedule 7.2(d) hereto.
(e) Other Documents. Such additional documents, information,
and materials as Purchaser shall reasonably request.
7.3 Deliveries by Purchaser
Prior to or on the Closing Date, Purchaser shall deliver to Seller the
following, in form and substance reasonably satisfactory to Seller and its
counsel:
(a) Cash Consideration. The Consideration provided in Section
2.2.
(b) Other Documents. Such additional documents, information,
and materials as Seller shall reasonably request.
SECTION 8. TERMINATION
8.1 Termination by Seller
This Agreement may be terminated by Seller prior to the Closing, and
the acquisition by Purchaser of a twenty-five percent (25%) undivided interest
in the Assets abandoned, if Seller is not then in material default, upon written
notice to Purchaser, upon the occurrence of any of the following:
(a) Conditions. If on the date on which the Closing is
required to take place pursuant to Section 7.1(a) any of the conditions
precedent to the obligations of Seller set forth in this Agreement has not been
satisfied or waived in writing by Seller.
(b) Judgments. If there shall be in effect on the date on
which the Closing is required to take place pursuant to Section 7.1(a) any
judgment, decree, or order that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred on or
before December 1, 1997.
8.2 Termination by Purchaser
This Agreement may be terminated by Purchaser, and the acquisition by
Purchaser of a twenty-five percent (25%) undivided interest in the Assets
abandoned, if Purchaser is not then in material default, upon written notice to
Seller, upon the occurrence of any of the following:
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(a) Conditions. If on the date on which the Closing is
required to take place pursuant to Section 7.1(a) any of the conditions
precedent to the obligations of Purchaser set forth in this Agreement has not
been satisfied or waived in writing by Purchaser.
(b) Judgments. If there shall be in effect on the date on
which the Closing is required to take place pursuant to Section 7.1(a) any
judgment, decree, or order that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred on or
before December 1, 1997.
8.3 Rights on Termination
Upon the termination of this Agreement, each party shall have all
rights and remedies available to it at law or equity.
8.4 Specific Performance
The parties recognize that if any party breaches this Agreement and
refuses to perform under the provisions of this Agreement, monetary damages
alone would not be adequate to compensate the other parties for their injury.
Each party shall therefore be entitled, in addition to any other remedies that
may be available, including money damages, to obtain specific performance of the
terms of this Agreement. If any action is brought by any party to enforce this
Agreement, the other parties shall waive the defense that there is an adequate
remedy at law.
8.5 Attorneys' Fees
In the event of a default by any party that results in a lawsuit or
other proceeding for any remedy available under this Agreement, the prevailing
party shall be entitled to reimbursement from the other party of its reasonable
legal fees and expenses (whether incurred in arbitration, at trial, or on
appeal).
SECTION 9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION;
CERTAIN REMEDIES
9.1 Representations and Warranties
Without prejudice to representations and warranties in other agreements
delivered hereunder, all representations and warranties contained in this
Agreement shall be deemed continuing representations and warranties and shall
survive the Closing Date for a period of twelve months. Any investigations by or
on behalf of any party hereto shall not constitute a waiver as to enforcement of
any representation, warranty, or covenant contained in this Agreement. No notice
or information delivered by any party shall affect any other party's right
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to rely on any representation, warranty, or covenant made by such party or
relieve such party of any obligations under this Agreement as the result of a
breach of any of its representations and warranties.
9.2 Indemnification by PCC
After the Closing, and regardless of any investigation made at any time
by or on behalf of Purchaser or any information Purchaser may have, PCC hereby
agrees to indemnify and hold harmless Purchaser from and against, and to
reimburse Purchaser for, any and all losses, liabilities, and damages (including
punitive and exemplary damages and fines or penalties and any interest thereon),
costs and expenses (including reasonable fees and disbursements of counsel and
expenses of investigation and defense), claims, or other obligations of any
nature (collectively, "Losses") that result from:
(a) Any inaccuracy in or breach of any representation and
warranty, or any breach or nonfulfillment of any covenant or agreement of PCC or
Seller contained in this Agreement or in any certificate, document, or
instrument delivered to Purchaser under this Agreement;
(b) Any failure to comply with applicable bulk sales laws;
(c) The operation or ownership of the Channel and the Assets
prior to the "Closing" set forth in the Landmark Agreement, including any
liabilities arising under the Licenses or the Assumed Contracts that relate to
events occurring prior the "Closing Date" set forth in the Landmark Agreement;
and
(d) Any claim relating to or arising in connection with any
Pension Plan, Welfare Plan, or Benefit Arrangement established or maintained by
Landmark, Travel, Seller or any ERISA Affiliate of any thereof, including any
claim relating to any severance pay program or any obligation to provide
"continuation coverage" (within the meaning of Sections 601 through 609 of ERISA
or Section 4980B of the Code) to any Employee as the result of any act or
omission of Landmark, Travel, Seller or any ERISA Affiliate of any thereof, or
arising as the result of any determination that PCC, Seller or any Affiliate
thereof is a successor employer to such entity.
9.3 Indemnification by DCI
After the Closing, and regardless of any investigation made at any time
by or on behalf of Seller or any information that Seller may have, DCI hereby
agrees to indemnify and hold harmless Seller from and against, and to reimburse
Seller for, any and all Losses that result from any inaccuracy in or breach of
any representation and warranty, or any breach or nonfulfillment
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of any covenant or agreement of Purchaser or DCI contained in this Agreement or
in any certificate, document, or instrument delivered to Seller under this
Agreement.
9.4 Procedure for Indemnification
The procedure for indemnification shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall
promptly give notice to the party from which indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the factual basis for the claim. If
the claim relates to an action, suit, or proceeding filed by a third party
against Claimant, such notice shall be given by Claimant within ten Business
Days after written notice of such action, suit, or proceeding was given to
Claimant. The Claimant's failure to give such notice timely shall not relieve
the Indemnifying Party from any liability that it otherwise may have to the
Claimant except to the extent the Indemnifying Party is actually prejudiced by
such failure.
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying Party
shall have thirty days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and its authorized representatives the information relied upon by the Claimant
to substantiate the claim. If the Claimant and the Indemnifying Party agree at
or prior to the expiration of the thirty-day period (or any mutually agreed upon
extension thereof) to the validity and amount of such claim, the Indemnifying
Party shall immediately pay to the Claimant the full amount of the claim. If the
Claimant and the Indemnifying Party do not agree within the thirty-day period
(or any mutually agreed upon extension thereof), the Claimant may seek
appropriate remedy at law or equity.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, if the
Indemnifying Party notifies the Claimant in writing within ten Business Days of
its receipt of notice from the Claimant of the third-party claim that the
Indemnifying Party acknowledges its potential liability to the Claimant under
this Agreement, the Indemnifying Party shall have the right at its own expense,
to participate in or assume control of the defense of such claim (subject to
Section 9.4(d)), and the Claimant shall cooperate fully with the Indemnifying
Party, subject to reimbursement for actual out-of-pocket expenses incurred by
the Claimant as the result of a request by the Indemnifying Party. If the
Indemnifying Party elects to assume control of the defense of any third-party
claim, the Claimant shall have the right to participate in the defense of such
claim at its own expense (except that the Claimant shall have the right to
participate in the defense of such claim at the Indemnifying Party's expense if
(i) the Claimant has been advised by its counsel that use of the same counsel to
represent both the Indemnifying Party and the Claimant would present a conflict
of interest, which shall be deemed to include any case where there may be a
legal defense or claim available to the Claimant that is different from or
additional to those available to the Indemnifying Party,
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or (ii) the Indemnifying Party fails vigorously to defend or prosecute such
claim within a reasonable time). If the Indemnifying Party fails timely to
notify the Claimant in writing that the Indemnifying Party acknowledges its
potential liability to the Claimant under this Agreement or if the Indemnifying
Party does not elect to assume control or otherwise participate in the defense
of any third-party claim, the Indemnifying Party shall be bound by the results
obtained by the Claimant with respect to such claim.
(d) The Indemnifying Party may not control the defense of any
claim, without the written consent of the Claimant, if (i) the Claimant has been
advised by its counsel that use of the same counsel to represent both the
Indemnifying Party and the Claimant would present a conflict of interest, or
(ii) the claim involves any material risk of the sale, forfeiture, or loss of,
or the creation of any lien (other than a judgment lien) on, any material
property of the Claimant or could entail a risk of criminal liability to the
Claimant.
9.5 Certain Limitations
Notwithstanding anything in this Agreement to the contrary,
(a) no party shall indemnify or otherwise be liable to any
other party with respect to any claim for any breach of a representation or
warranty, unless notice of the claim is given within twelve months after the
Closing Date;
(b) PCC shall not be required to indemnify or otherwise be
liable to DCI or Purchaser for any breach of a representation or warranty,
unless the Losses of DCI or Purchaser from all such breaches exceed in the
aggregate Twenty-Five Thousand Dollars ($25,000), in which event PCC shall be
required to indemnify DCI and Purchaser for all such Losses (subject to the
other limitations in this Agreement);
(c) DCI shall not be required to indemnify or otherwise be
liable to PCC or Seller for any breach of a representation or warranty unless
the Losses of PCC and Seller from all such breaches exceed in the aggregate
Twenty-Five Thousand Dollars ($25,000), in which event DCI shall be required to
indemnify PCC and Seller for all such Losses (subject to the other limitations
in this Agreement);
(d) PCC shall not be required to indemnify or otherwise be
liable to DCI or Purchaser for any breach of a representation or warranty, to
the extent that the Losses of DCI and Purchaser from all such breaches exceed in
the aggregate Twenty Million Dollars ($20,000,000);
(e) DCI shall not be required to indemnify or otherwise be
liable to PCC or Seller for any breach of a representation or warranty to the
extent that the Losses of PCC and Seller from all such breaches exceed in the
aggregate Twenty Million Dollars ($20,000,000);
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(f) PCC shall not be required to indemnify or otherwise be
liable to DCI or Purchaser for any breach of Section 3.9 unless PCC is able to
recover and does recover the amount of the Loss from such breach from Landmark
pursuant to the Landmark Agreement.
(g) the amount of Losses for which a Claimant may be entitled
to indemnification under this Agreement (but not the amount of Losses suffered
by a Claimant for purposes of the foregoing provisions of this Section 9.5)
shall be determined on an after-tax basis, after giving effect to any tax
benefit arising from the incurring of any Loss and any tax detriment arising
from the indemnification thereof;
(h) indemnification of Losses under this Agreement shall be
net of any insurance proceeds actually paid to the Claimant with respect to the
event giving rise to such Loss, but no Claimant shall have any obligation under
this Agreement to make any claim under any insurance policy that may be
applicable to such event.
9.6 Remedies
The remedy of indemnification under this Section 9 is in addition to
any action either party may have in equity, and all such remedies may be
exercised singly or concurrently. In the event that a party is unable to obtain
indemnification pursuant to this Section 9, such party shall have the right to
pursue any rights and remedies at law or in equity.
SECTION 10. MISCELLANEOUS
10.1 Fees and Expenses
Except as otherwise provided in this Agreement, each party shall pay
its own expenses incurred in connection with the authorization, preparation,
execution, and performance of this Agreement, including all fees and expenses of
counsel, accountants, agents, and representatives, and each party shall be
responsible for all fees or commissions payable to any finder, broker, advisor,
or similar Person retained by or on behalf of such party. Seller and Purchaser
shall each pay one-half of any filing fees, transfer taxes, recordation taxes,
sales taxes, document stamps, or other charges levied by any governmental entity
in connection with the transactions contemplated by this Agreement.
10.2 Notices
All notices, demands, and requests required or permitted to be given
under the provisions of this Agreement shall be (a) in writing, (b) delivered by
personal delivery, or sent by commercial delivery service or registered or
certified mail, return receipt requested, or sent by facsimile transmission, (c)
deemed to have been given on the date of personal delivery or the date set forth
in the records of the delivery service or on the return receipt or by facsimile
confirmation, and (d) addressed as follows:
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If to Seller to: Travel Channel Acquisition Corporation
c/o Paxson Communications Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopier: 202-776-2222
If to Purchaser to: Project Discovery, Inc.
c/o Discovery Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
With a copy to: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
or to any other or additional Persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 10.2.
10.3 Benefit and Binding Effect
No party may assign this Agreement without the prior written consent of
each other party hereto, except that, any party may assign any or all of its
rights under this Agreement to any Affiliate (which assignment shall not relieve
the assigning party of any obligations or liabilities under this Agreement).
This Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
10.4 Further Assurances
The parties shall take any actions and execute any other documents that
may be necessary or desirable to the implementation and consummation of this
Agreement, including, in the case of Seller, any additional deeds, bills of
sale, or other transfer documents that, in the reasonable opinion of Purchaser,
may be necessary to ensure, complete, and evidence the full and effective
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transfer of a twenty-five percent (25%) undivided interest in the Assets to
Purchaser pursuant to this Agreement.
10.5 GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW
PROVISIONS THEREOF.
10.6 Headings
The headings in this Agreement are included for ease of reference only
and shall not control or affect the meaning or construction of the provisions of
this Agreement.
10.7 Entire Agreement
This Agreement, the schedules, hereto, and all documents, certificates,
and other documents to be delivered by the parties pursuant hereto, collectively
represent the entire understanding and agreement between Seller and Purchaser
with respect to the subject matter of this Agreement. This Agreement supersedes
all prior negotiations among the parties and cannot be amended, supplemented, or
changed except by an agreement in writing that makes specific reference to this
Agreement and that is signed by each party against which enforcement of any such
amendment, supplement, or modification is sought. This document shall not
constitute or otherwise evidence an agreement among the parties hereto relating
to the subject matter hereof unless and until it has been executed and delivered
by the parties hereto.
10.8 Waiver of Compliance; Consents
Except as otherwise provided in this Agreement, any failure of any of
the parties to comply with any obligation, representation, warranty, covenant,
agreement, or condition herein may be waived by the party entitled to the
benefits thereof only by a written instrument signed by the party granting such
waiver, but such waiver or failure to insist upon strict compliance with such
obligation, representation, warranty, covenant, agreement, or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section
10.8.
10.9 Counterparts
This Agreement may be signed in counterparts with the same effect as if
the signature on each counterpart were upon the same instrument.
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34
IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of the date first written above.
TRAVEL CHANNEL ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: SECRETARY
---------------------------------------
PROJECT DISCOVERY, INC.
By:
-------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: SECRETARY
---------------------------------------
DISCOVERY COMMUNICATIONS, INC.
By:
-------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
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