EXHIBIT 10.3
ESTATE ADMINISTRATION AGREEMENT
BY AND BETWEEN
CENTURY COMMUNICATIONS CORPORATION
AND
ML MEDIA PARTNERS, L.P.
DATED AS OF SEPTEMBER 7, 2005
ESTATE ADMINISTRATION AGREEMENT
This Estate Administration Agreement (this "AGREEMENT") is made this 7th day of
September 2005 by and between Century Communications Corporation ("CENTURY") and
ML Media Partners, L.P. ("ML MEDIA"). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Plan of
Reorganization (the "PLAN") of Century/ML Cable Venture (the "DEBTOR"), dated
August 9, 2005 and approved by the United States District Court for the Southern
District of New York (the "BANKRUPTCY COURT") having jurisdiction over the
Debtor's case (the "CHAPTER 11 CASE") under Chapter 11 of Title 11 of the United
States Code, as amended from time to time (the "BANKRUPTCY CODE"), on September
7, 2005. Notwithstanding the date of execution, this Agreement shall only become
effective on the Effective Date (as defined in the Plan).
RECITALS
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WHEREAS, on September 30, 2002, the Debtor filed a voluntary petition for relief
under Chapter 11 of the Bankruptcy Code with the Bankruptcy Court; and
WHEREAS, on June 3, 2005, Century, ML Media, the Debtor, the Subsidiary and the
Buyer entered into the Acquisition Agreement pursuant to which the Buyer agreed
to acquire 100% of the outstanding ownership interests in New CMLCV; and
WHEREAS, on August 9, 2005, the Debtor filed the Plan with the Bankruptcy Court
and, on September 7, 2005, the Bankruptcy Court entered an order approving the
Plan; and
WHEREAS, Section 5.13 of the Plan provides that upon the Effective Date, the
management, control and liquidation of the Transferred Assets (other than those
Transferred Assets that are to be assigned, terminated or released pursuant to
the Acquisition Agreement or the terms of the Plan) shall become the
responsibility of Century and ML Media or a Plan Administrator; and
WHEREAS, Century and ML Media now desire to set forth (i) their agreement for
the establishment of a Plan Administration Board (the "BOARD") to manage,
control and liquidate the Transferred Assets and to otherwise administer the
Estate in lieu of a Plan Administrator and (ii) the terms and conditions upon
which Century and/or ML Media shall perform certain tasks on behalf of the
Estate after the Effective Date.
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereby agree as follows:
1.
PLAN ADMINISTRATION BOARD
2. ESTABLISHMENT OF THE BOARD. Each of Century and ML Media will be
entitled to appoint two (2) representatives to the Board, which will administer
the Estate in accordance with the Plan and will perform all duties and
obligations necessary or appropriate to manage, control and liquidate the
Transferred Assets and the Excluded Liabilities and to otherwise administer the
Estate, including, without limitation, all duties and obligations imposed upon
the Board or the Plan Administrator under this Agreement, the Plan, any
applicable orders of the Bankruptcy Court and applicable law.
3. DESIGNATION OF BOARD MEMBERS; RESIGNATION. Century hereby designates
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ to act as its initial representatives on the
Board (the "CENTURY DESIGNEES"), and ML Media hereby designates I. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ to act as its initial representatives on the
Board (the "ML MEDIA DESIGNEES," and, together with the Century Designees, the
"BOARD MEMBERS"). Century shall be entitled to remove any Century Designee at
any time, with or without cause, upon prior written notice to ML Media, and ML
Media shall be entitled to remove any ML Media Designee at any time, with or
without cause, upon prior written notice to Century. Upon the death, incapacity
or removal or resignation from the Board of any Board Member, the entity that
designated the departing Board Member shall designate a replacement to the
Board, and such person shall thereafter serve as a Board Member.
4. ACTIONS AND DETERMINATIONS OF THE BOARD. Any actions or determinations
of the Board shall require the approval of a majority of the Board Members. The
Board shall hold meetings as necessary, but not less often than monthly. A
meeting of the Board may be called by either ML Media or Century at any time,
and may be held either in person or telephonically.
5. DISPUTE RESOLUTION. If the Board has fully discussed a potential
action to be taken or determination to be made by the Board regarding the
management, control or liquidation of the applicable Transferred Assets or
Excluded Liabilities or the administration of the Estate, and no decision has
been reached in accordance with Section 1.3 hereunder, then, if ML Media and
Century agree:
6. ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP ("MLB"), Bankruptcy counsel to the
Debtor, shall review the proposed action as to whether taking (or
refraining to take) such action is in the best interests of the Estate,
and/or whether the failure to take such action will prejudice the Estate.
7. MLB shall advise both Century and ML Media in writing of MLB's
recommendation as to such action (or decision not to act) and the reasons
therefore.
8. After giving both Century and ML Media an opportunity to further
discuss MLB's recommendation (which additional opportunity for discussion
shall not
exceed three (3) days), MLB shall be authorized to, and shall (if MLB's
recommendation has not changed) prepare and file such materials with the
Bankruptcy Court and take such other action (including, without limitation,
making any appearance before the Bankruptcy Court) as may be necessary or
advisable to implement MLB's recommendation as to such action (or decision
not to act) (or to preserve the Estate's rights relating thereto);
PROVIDED, HOWEVER, that any such filing shall contain a clear statement
that the action does not have the full, consensual support of the Board and
that such action has been taken in accordance with this Agreement as a
result of an impasse.
9. Century and ML Media shall each be entitled to take such action
as they deem appropriate in response to such action, including without
limitation the filing of material with, and making of appearance before,
the Bankruptcy Court objecting to the proposed action (or decision not to
act), and the taking of such action (or decision to refrain from acting)
will not (by itself) create any waiver, estoppel or similar preclusion
doctrine applicable against the objecting party. Notwithstanding anything
to the contrary, any decision with respect to the Estate's continued
retention of MLB shall require a unanimous decision of the Board, unless
otherwise ordered by the Bankruptcy Court.
10. MLB shall have no liability to the Estate or Century or ML as a
result of actions taken or not taken in accordance with this Agreement.
11. In the event that the objecting party's objection is not
resolved, consensually, and Bankruptcy Court intervention is required, the
usual "business judgment" test governing the actions of a debtor shall not
apply to the action proposed to be taken by the Board on behalf of the
Estate in accordance with this Agreement, and Century and ML Media agree
that the Bankruptcy Court shall instead review any such decision, and
determine the appropriate weight to be given, if any, to MLB's
recommendation.
If ML Media and Century do not agree to the foregoing procedure, any
dispute shall be referred by Century or ML Media directly to the Bankruptcy
Court.
12. RELIANCE BY THE BOARD. The Board may consult with counsel and other
professionals with respect to matters in their area of expertise, and any
opinion of counsel shall be full and complete authorization and protection in
respect of any action taken or not taken by the Board. The Board shall be
entitled to rely upon the advice of such professionals in acting or failing to
act, and shall not be liable for any act taken or not taken in reliance thereon.
The Board shall have the right at any time to seek and rely upon instructions
from the Bankruptcy Court concerning this Agreement, the Plan or any other
document executed in connection herewith or therewith, and the Board shall be
entitled to rely upon such instructions in acting or failing to act and shall
not be liable for any act taken or not taken in reliance thereon. In addition to
the exculpation provided for in the Plan, the Board shall have no liability for
any action taken or failed to have been taken, except for the Board's willful
misconduct or gross negligence.
13.
RETAINED CASH
14. DESIGNATION OF RETAINED CASH. Prior to the Effective Date, Century and
ML Media shall agree upon the amount of Cash to initially be designated as
Retained Cash for the Plan Funding Reserve.
15.
CERTAIN TRANSITION SERVICES
16. PROVISION OF SERVICES. On the terms and subject to the conditions
contained herein, Century and/or ML Media shall provide, or shall cause its
respective Affiliates or Third Party Service Providers (as defined below) (such
designated Affiliates and Third Party Service Providers, together with Century
and ML Media, being herein collectively referred to as the "SERVICE PROVIDERS")
to provide, the services listed on SCHEDULE A hereto for which Century and/or ML
Media is designated as the "Primary Responsible Party" on such SCHEDULE A hereto
and any other services required to administer the Estate (the "SERVICES"), on
the terms set forth herein. Each of the Services shall be provided under the
overall supervision of the Board and in accordance with the terms, limitations
and conditions set forth herein and on SCHEDULE A hereto. As used herein, "THIRD
PARTY SERVICE PROVIDERS" shall mean unaffiliated third parties (including,
without limitation, consultants, auditors, attorneys and tax advisers) that are
retained by the Board to provide any of the Services; PROVIDED, HOWEVER, that
Century and ML Media hereby agree to cause the Board to retain the Third Party
Service Providers set forth on SCHEDULE B hereto only for the Services set forth
on SCHEDULE B (unless Century and ML Media otherwise agree in writing), together
with any other parties that the Board may from time to time appoint to replace
any of the Third Party Providers set forth on SCHEDULE B hereto for such
Services (a "SUCCESSOR THIRD PARTY SERVICE PROVIDER") and such Successor Third
Party Service Provider shall thereafter be deemed a "Third Party Service
Provider" for all purposes hereunder; PROVIDED FURTHER that ML Media agrees to
cause the ML Media Designees to approve any Successor Third Party Service
Provider designated by Century to replace a Contractor (as defined below) or its
successor hereunder if such Successor Third Party Service Provider has
comparable skill-sets as the Contractor and its hourly rates are not greater
than those of the applicable Contractor and such Successor Third Party Service
Provider shall thereafter be deemed a "Contractor" for all purposes hereunder.
As used herein, "CONTRACTOR" shall refer to the positions set forth on SCHEDULE
B hereto that are initially held by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇. Any Third Party Service Provider (other than a Contractor) may be
replaced at any time by the Board. Each Service Provider shall advise the Board
on a regular basis with respect to any Services provided by it, and shall accept
any instructions from the Board with respect to the performance of the Services.
Without limiting the right of the Board to supervise all Services, the Board
must approve any financial statements or tax returns prepared by a Service
Provider, any payment made from the Retained Cash or otherwise in the
administration of the Estate or any settlement of any claim by or against the
Estate.
17. EXPENSE PAYMENTS. Subject to Section 4.1, each Service shall be
provided by the applicable Service Provider designated on SCHEDULE A hereto on
the "Cost Basis" set forth on
SCHEDULE A hereto. Each Service Provider shall deliver statements (each, a
"STATEMENT") to the Board itemizing the Services provided during the preceding
month, and each such Statement shall set forth a brief description of such
Services and the amounts, if any, charged therefore (which, subject to the last
sentence of this Section 3.2, shall be consistent with the "Cost Basis" set
forth on SCHEDULE A hereto) and such amounts shall be payable by the Estate from
the Plan Funding Reserve within thirty (30) days after the date such Statement
is delivered to the Board. If the Board determines (which determination can be
made by any two members of the Board) to dispute any such Statement, it shall
deliver a written notice to the applicable Service Provider within such thirty
(30) day period, which notice shall specify with particularity the amounts in
dispute (the "DISPUTED AMOUNT") and the basis for such dispute (a "DISPUTE
NOTICE"). Simultaneously with the delivery of the Dispute Notice, the Board
shall cause the Estate to pay to the applicable Service Provider the undisputed
amount set forth in the applicable Statement, which amount shall be paid from
the Plan Funding Reserve. If it is finally determined by the Bankruptcy Court or
another court having jurisdiction over the matter that Adelphia or its
Affiliates are entitled to be paid all or a portion of the Disputed Amount
(which, for the avoidance of doubt, shall include any amounts submitted by
Century or its Affiliates to the Board for reimbursement of the costs, fees or
expenses of a Contractor), Century and ML Media shall cause the Board to pay the
amount so determined to be owed to Century or its Affiliates promptly, and in
any event within fifteen (15) days after such final determination, to Century or
its Affiliates together with interest at a rate equal to the prime rate
announced from time to time by ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank plus 1% per annum for the
period from the date beginning forty-five (45) days after delivery of the
Statement to the Board until payment of such Disputed Amounts, together with an
amount equal to the out-of-pocket third party costs and expenses (including, but
not limited to, reasonable legal fees and expenses) incurred by Century or its
Affiliates in connection with any action, including, but not limited to, the
filing of any lawsuit or other legal action to collect payment of the Disputed
Amount. In the event that it is finally determined by the Bankruptcy Court or
another court having jurisdiction over the matter that Adelphia or its
Affiliates are not entitled to be paid any part of the Disputed Amount, Century
shall pay promptly, and in any event within fifteen (15) days after such final
determination, to the Estate an amount equal to the out-of-pocket third party
costs and expenses (including, but not limited to, reasonable legal fees and
expenses) incurred by the Estate in connection with any action, including, but
not limited to, the filing of any lawsuit or other legal action to collect
payment of the Disputed Amount. Notwithstanding anything to the contrary herein
or on SCHEDULE A hereto (including, without limitation, any reference to "no
charge" under the "Cost Basis" heading set forth on SCHEDULE A hereto with
respect to such Service), any Third Party Service Provider (other than a
Contractor) retained by the Board shall have its costs, fees and expenses billed
directly to the Estate and reimbursed by the Estate out of the Plan Funding
Reserve. The costs, fees and expenses of the Contractors shall be billed
directly to Century or its Affiliates, who shall then, subject to Section 3.5,
be entitled to be reimbursed by the Estate out of the Plan Funding Reserve.
18. RESPONSIBILITY FOR EXCLUDED LIABILITIES. The parties hereto
acknowledge and agree that, notwithstanding any of the allocated
responsibilities for providing the Services set forth herein, the payment of any
amounts in satisfaction of, or otherwise required in relation to, any Excluded
Liabilities shall be made from the Sellers Escrow Account, 50% by Century and
50% by ML Media, except as otherwise determined by the Bankruptcy Court (which
determination of the Bankruptcy Court shall take into account all relevant
factors including the
actions and inactions of Century and ML Media (and their applicable Board
Members) taken in connection with administering the applicable Excluded
Liability hereunder) or agreed to in writing by Century and ML Media.
19. COOPERATION. Century and ML Media shall reasonably cooperate with each
other in all matters relating to the provision and receipt of the Services.
20. SCOPE OF SERVICES. To the extent that Century, ML Media or its
designated Service Providers provide any Services under this Agreement (whether
or not such Services are set forth on SCHEDULE A hereto), except as otherwise
set forth on SCHEDULE A hereto with respect to Service Providers other than
Third Party Service Providers, they shall be paid as follows in accordance with
Section 3.2:
o $125 per hour for any Vice President, $75 per hour for any Director
and $50 per hour for any Manager of Century or any of its Affiliates;
o No charge for the time of any Board Member or any other employee of
Century, Adelphia or their Affiliates performing managerial,
administrative or oversight responsibilities (e.g., ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇) or other employee of ML Media or its Affiliates (e.g., I.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇);
and
o 100% of any fees and expenses incurred by any Third Party Service
Provider set forth on SCHEDULE B hereto or approved (or deemed
approved) by the Board in accordance with Section 3.1 hereof to such
Third Party Service Provider (other than Contractors); PROVIDED,
HOWEVER, that the Estate shall only be obligated to reimburse Century
or its Affiliates for the costs, fees and expenses of the Contractors
at the rates set forth on SCHEDULE B hereto and shall not be obligated
to pay such persons to the extent the Cost Basis designated on
SCHEDULE A hereto for the Services that they perform is specified as
"No charge".
21. LIMITATIONS. Provision of Services under this Agreement shall not
obligate Century or ML Media, as the case may be, to (a) hire any additional
employees, (b) continue the employment of any employees the employment of whom
Century or ML Media, as the case may be, would not otherwise need to continue,
PROVIDED it has or retains other personnel to provide such Services, or (c) with
respect to any Services provided by any Third Party Service Provider, pay any
fee for such Services not reimbursed by the Estate.
22. LIABILITY FOR SERVICES. The standard for determining whether Century
or ML Media shall have any liability to the other for services performed under
this Agreement shall be the same standard as under the Joint Venture Agreement,
which agreement the parties hereto acknowledge shall otherwise be terminated and
of no force or effect as of the Effective Date; PROVIDED, HOWEVER, each party
shall retain any rights or claims under that agreement relating to the period
through the Effective Date.
23. FORCE MAJEURE. Neither Century, ML Media nor any of the other Service
Providers shall be liable for any failure of or delay in the performance of any
obligation hereunder (other than any obligation to pay money) for the period
that such failure or delay is due to any Force Majeure event. "FORCE MAJEURE"
shall mean any acts of God, public enemy, act of terrorism, war, strikes or
labor disputes, or any other causes beyond a party's reasonable control.
24.
TERMINATION
25. TERMINATION. Except as otherwise agreed to in writing by Century and
ML Media, this Agreement (other than with respect to Section 1.5 and Section 3.3
hereto and any payment obligation under Section 3.2 arising prior to the
termination of this Agreement, all of which provisions and obligations shall
survive indefinitely) shall terminate, and the parties shall no longer have any
obligations hereunder, upon the later to occur of the closing of the Chapter 11
Case in accordance with Section 5.14 of the Plan or the completion of all of the
Services on SCHEDULE A hereto as determined by the Board.
26.
MISCELLANEOUS PROVISIONS
27. DESCRIPTIVE HEADINGS. The headings contained in the Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of the Agreement.
28. AMENDMENT, WAIVER AND MODIFICATION. The Agreement may not be amended,
and no provision hereof may be waived, except by a written instrument executed
by Century and ML Media. No waivers of or exceptions to any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
29. GOVERNING LAW; JURISDICTION FOR DISPUTES. The Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts entered into and to be entirely performed in the State
of New York. All disputes arising out of or related to this Agreement,
including, without limitation, any dispute relating to the interpretation,
meaning or effect of any provision hereof, will be resolved in the Bankruptcy
Court and the parties hereto will each submit to the exclusive jurisdiction of
the Bankruptcy Court for the purposes of adjudicating any such dispute, to the
extent the jurisdiction of the Bankruptcy Court is applicable. If the
jurisdiction of the Bankruptcy Court is not applicable, any legal action, suit
or proceeding arising out of or relating to this Agreement, each and every
agreement and instrument contemplated hereby or the transactions contemplated
hereby and thereby shall be instituted in the U.S. District Court for Southern
District of New York.
30. COUNTERPARTS; EFFECTIVENESS. The Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which shall
constitute one and the same agreement. The Agreement shall become effective
when each party hereto shall have received counterparts thereof signed by ach
other party hereto.
31. SEVERABILITY; VALIDITY. If any provision of this Agreement shall be
determined by a court or other tribunal of competent jurisdiction to be invalid,
inoperative or unenforceable because of the conflict of such provision with any
constitution, statute, common law principle, rule of public policy or for any
other reason, such circumstance shall have no effect or render any other
provision or provisions contained herein invalid, inoperative or unenforceable,
but this Agreement shall be reformed and construed as if such invalid,
inoperative or unenforceable provision had never been contained herein and such
provision reformed so that it would be valid, operative and enforceable to the
maximum extent permitted.
32. NOTICES. Any notice or other communication hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when actually delivered or, in the case of notice by
facsimile transmission, when received and telephonically confirmed, addressed as
follows (or at such other address for such entity as shall be specified by like
notice):
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If to the Estate: to each of ML Media and Century as provided below
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With a copy (which ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
shall not ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇) ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
to: Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
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If to ML Media: ML Media Partners, L.P.
c/o RP Companies, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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With a copy (which Proskauer Rose LLP
shall not ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇) ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
to: Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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If to Century, to: c/o Adelphia Communications Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: General Counsel
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With a copy (which ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
shall not ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
constitute notice) ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
to: Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
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33. ENTIRE AGREEMENT; RELATIONSHIP TO PLAN. The parties agree that this
Agreement, including SCHEDULE A hereto, together with the Acquisition Agreement,
the Sellers Escrow Agreement, the Plan and the Letter Agreement, dated June 3,
2005, by and between Century and ML Media regarding, among other things, certain
escrow and tax matters, including any exhibits and schedules thereto, constitute
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior understandings, agreements, writings and deliveries with
respect thereto. The principal purpose of the Agreement is to aid in the
implementation of the Plan and, therefore, the Agreement incorporates and is
subject to the provisions of the Plan. To that end, the Board shall have full
power and authority to take any action consistent with the purposes and
provisions of the Plan. In the event that the provisions of the Agreement are
found to be inconsistent with the provisions of the Plan, the provisions of the
Plan shall control; PROVIDED, HOWEVER, that provisions of the Agreement adopted
by amendment and approved by the Bankruptcy Court following substantial
consummation (as such term is used in section 1127(b) of the Bankruptcy Code) of
the Plan shall control over provisions of the Plan.
34. RETENTION OF JURISDICTION. As provided in Article 10 of the Plan, the
Bankruptcy Court shall retain jurisdiction over the Estate to the fullest extent
permitted by law, including, but not limited to, for the purposes of
interpreting and implementing the provisions of the Agreement; PROVIDED,
HOWEVER, that the retention of jurisdiction shall not require the retention or
payment of the Board or professionals hired by the Board to be approved by the
Bankruptcy Court.
35. RELATIONSHIP OF PARTIES. Century, ML Media and the other Service
Providers are independent contractors. Century, ML Media and the other Service
Providers shall provide the Services as independent contractors, and nothing
contained in this Agreement shall be deemed to create any association,
partnership, joint venture, or relationship of principal and agent, or master
and servant, between the parties to this Agreement or any Affiliates thereof, or
to provide either party with the right, power or authority, whether express or
implied, to create any such duty or obligation on behalf of the other party.
36. CONSTRUCTION. In the interpretation and construction of this
Agreement, the parties acknowledge that the terms hereof reflect extensive
negotiations between the parties and that this
Agreement shall not be deemed, for the purpose of construction and
interpretation, drafted by any party hereto.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the day and year first
above written.
ML MEDIA PARTNERS, L.P.
By: Media Management Partners,
its general partner
By: s/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name:
Title:
CENTURY COMMUNICATIONS
CORPORATION
By: s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name:
Title:
SCHEDULE A
------------------------------------------------ ----------------------- --------------------------------------------
PRIMARY
RESPONSIBLE
DESCRIPTION OF SERVICE PARTY COST BASIS
------------------------------------------------ ----------------------- --------------------------------------------
1. Preparation of Sellers' Adjustment Century and ML Media No charge
Certificate (as defined in the
Acquisition Agreement)
------------------------------------------------ ----------------------- --------------------------------------------
2. Preparation of post-closing tax Century No charge
returns and amended tax returns for
the Debtor and the Subsidiary
------------------------------------------------ ----------------------- --------------------------------------------
3. Preparation of financial statements Century No charge
through the Closing Date
------------------------------------------------ ----------------------- --------------------------------------------
4. Audit of financial statements for Century Cost basis as set forth in Section 3.5,
2005 through the Closing Date (as subject to the following modifications:
defined in the Acquisition Agreement)
o 50% of the amounts set forth in
the first bullet point thereof
o the Estate shall only be
obligated to reimburse Century or its
Affiliates for 50% of the costs, fees
and expenses of the Contractors at the
rates set forth on Schedule B hereto
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5. Satisfaction of any liabilities related Century and ML Media No charge
to the Chapter 11 Case that are Excluded
Liabilities (including payment of
professional fees of the Debtor, the
Subsidiary or the Estate)
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6. Management of any liabilities of the Century and ML Media No charge
Estate to Affiliates of the Debtor
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7. Management of any liabilities of the Century and ML Media No charge
Estate to Highland Holdings or the Rigases
------------------------------------------------ ----------------------- --------------------------------------------
8. Management of the ▇▇▇▇▇ and ▇▇▇▇▇▇ Century and ML Media Cost basis as set forth in Section 3.5
lawsuits
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9. Management of pre-closing programming Century o No charge to the extent that the
audits; programming agreement breaches or audit, breach or liability relates to
pre-petition programming liabilities a programming service carried by the
Debtor and the Subsidiary and any
other Adelphia system
o If the audit, breach or liability
relates to a programming service
carried only by the Debtor and the
Subsidiary, then see Section 3.5 for
cost basis
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