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EXHIBIT 10.203
CONFORMED COPY
INTEREST TRANSFER AGREEMENT
RELATING TO
THE TRAVEL CHANNEL, L.L.C.
INTEREST TRANSFER AGREEMENT, dated as of February 4, 1999
(this "AGREEMENT"), between DISCOVERY COMMUNICATIONS, INC., a Delaware
corporation ("DCI"), PROJECT DISCOVERY, INC., a Delaware corporation and a
wholly owned subsidiary of DCI, ("PDI"), THE TRAVEL CHANNEL, L.L.C., a Delaware
limited liability company (the "COMPANY"), DISCOVERY VENTURES, LLC , a Delaware
limited liability company and an affiliate of PDI ("VENTURES" and together with
DCI, PDI and the Company, the "DISCOVERY PARTIES"), XXXXXX COMMUNICATIONS
CORPORATION, a Delaware corporation ("XXXXXX") and TRAVEL CHANNEL ACQUISITION
CORPORATION, a Delaware corporation and a wholly owned subsidiary of Xxxxxx
("TCAC" and together with Xxxxxx, the "XXXXXX PARTIES").
RECITALS
WHEREAS, TCAC and PDI established the Company under the
Delaware Limited Liability Company Act pursuant to that certain Limited
Liability Company Agreement, dated as of November 24, 1997 (the "FORMATION
AGREEMENT");
WHEREAS, as a result of certain disputes between TCAC and PDI,
in their capacities as Members (as defined in the Formation Agreement) of the
Company, as to the operation of the Company (the "DISPUTE"), TCAC desires to
sell and Ventures desires to acquire, TCAC's Interest (as defined in the
Formation Agreement) in the Company in accordance with the terms set forth
below, including the delivery of mutual releases arising out of the Dispute; and
WHEREAS, upon the sale of TCAC's Interest to Ventures, the
Xxxxxx Parties and the Discovery Parties mutually desire to release each other
from the Formation Agreement and the Related Documents (as defined below) to
which they are a party, and to mutually release each other from all other claims
and liabilities arising therefrom or relating thereto.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements set forth herein, the parties hereto hereby
agrees as follows:
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SECTION 1
DEFINITIONS
1.1 DEFINITIONS. The following terms, as used in this Agreement, shall
have the meanings set forth in this Section; provided, however, any capitalized
terms used in this Agreement which are not defined in this Section shall have
the same meaning given them in the Formation Agreement:
"CLOSING" means the consummation of the purchase and sale of
the Interest and the other transactions contemplated pursuant to this
Agreement in accordance with the provisions of Section 5.
"CLOSING DATE" means February 10, 1999 or if the waiting
period under the HSR Act applicable to the consummation of the
transactions contemplated hereby shall have terminated prior to
February 5, 1999, then on the third business day following such
termination date.
"CONSULTING AGREEMENT" means that certain Consulting Agreement
dated as of November 24, 1997 between Xxxxxx and the Company.
"CONSULTING FEE" means the accrued and unpaid consulting fees
owed to Xxxxxx by the Company under and pursuant to the terms of the
Consulting Agreement.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"INITIAL PURCHASE SETTLEMENT AMOUNT" means (a) $1,549,930,
representing the net amount owed to TCAC by the Company pursuant to the
settlement of prorated amounts under Section 3.8 of the Formation
Agreement, including amounts owed to TCAC in respect of revenues
collected by the Company from the sale of advertising time on The
Travel Channel network in respect of the period prior to the Effective
Date (as defined in the Formation Agreement), and (b) approximately
$333,833 pursuant to the terms of a letter agreement among the parties
hereto dated even dated herewith (the "Closing Letter Agreement").
"INTEREST" means all of TCAC's right, title and interest in
and to its Interest (as such term is defined in the Formation
Agreement) in the Company together with any and all other rights
relating thereto and interest therein.
"NET PURCHASE PRICE" means the Purchase Price less the "MSO
Payment Amounts," as defined herein; PROVIDED, HOWEVER, that in the
event any of the SSI Receipt, Cox Receipt or TW Receipt are not
delivered at the Closing, the Net Purchase Price shall be adjusted as
contemplated under Section 2.3(e).
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"RELATED AGREEMENTS" means each of (i) the Consulting
Agreement; (ii) that certain Guaranty Agreement dated as of November
24, 1997 by DCI in favor of TCAC; and (iii) that certain Software
License Agreement dated as of November 24, 1997 by and between TCAC and
the Company.
SECTION 2
TRANSFER OF INTEREST
2.1 ASSIGNMENT. Subject to the terms and conditions set forth in this
Agreement, on the Closing Date, TCAC hereby sells, transfers, and delivers to
Ventures, and Ventures hereby purchases, TCAC's Interest in the Company.
2.2 PURCHASE PRICE AND ACCRUED PAYMENT OBLIGATIONS. The Purchase Price
for the Interest shall be Fifty-Five Million Dollars ($55,000,000). Concurrent
with the payment of the Purchase Price, Ventures, on behalf of PDI and the
Company, shall also make a payment to TCAC of $2,233,763 (the "ACCRUED PAYMENT
OBLIGATIONS") which amount represents the sum of $350,000 in respect of
Consulting Fees and $1,883,763 in respect of the Initial Purchase Settlement
Amount. The Purchase Price and the Accrued Payment Obligations shall be paid by
Ventures to TCAC by wire transfer of same day funds to an account as directed by
TCAC and Xxxxxx. TCAC and Xxxxxx shall deliver to Ventures the wire transfer
instructions at least three business days prior to the Closing Date.
2.3 MSO PAYMENT AMOUNTS.
(a) Pursuant to the terms of that Cable Affiliation Agreement, dated as
of April 27, 1998, as amended, (the "SSI MSO AGREEMENT") between Pax Net, Inc.
and Satellite Services, Inc. ("SSI"), an affiliate of Ventures, Xxxxxx owes SSI
certain payments in respect of cable carriage for Xxxxxx'x national network
programming service on SSI owned or controlled cable systems. At the direction
of TCAC and Xxxxxx, in lieu of a direct payment to TCAC of a portion of the
Purchase Price, Ventures has agreed to make a payment to SSI on behalf of Xxxxxx
and TCAC in the amount of $12,150,000, or make other arrangements with SSI for
the satisfaction of such payment obligation owed by Xxxxxx to SSI (the amount to
be paid or otherwise satisfied by Ventures under the terms hereof being referred
to as the "SSI PAYMENT AMOUNT") to be credited against the amount owed by Xxxxxx
to SSI under the SSI MSO Agreement. At the Closing, Ventures shall deliver, or
cause to be delivered, to TCAC, a receipt in the form of EXHIBIT A-1 annexed
hereto (the "SSI RECEIPT"), executed by SSI and acknowledging the payment and
satisfaction of the SSI Payment Amount against amounts owing by Xxxxxx to SSI
under the SSI MSO Agreement.
(b) Pursuant to the terms of a cable affiliation term sheet dated as of
September 28, 1998 (the "COX MSO AGREEMENT") between Xxxxxx and Xxx
Communications, Inc. ("COX"), an
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affiliate of Ventures, Xxxxxx owes Cox certain payments in respect of cable
carriage for Xxxxxx'x national network programming service on Cox owned or
controlled cable systems. At the direction of TCAC and Xxxxxx, in lieu of a
direct payment to TCAC of a portion of the Purchase Price, Ventures has agreed
to make a payment in the amount of $6,000,000, or make other arrangements with
Cox for the satisfaction of such payment obligation owed by Xxxxxx to Cox (the
amount to be paid or otherwise satisfied by Ventures under the terms hereof
being referred to as the "COX PAYMENT AMOUNT") to be credited against the amount
owed by Xxxxxx to Cox under the Cox MSO Agreement. At the Closing, Ventures
shall deliver, or cause to be delivered, to TCAC, a receipt in the form of
EXHIBIT A-2 annexed hereto (the "COX Receipt"), executed by Cox and
acknowledging the payment and satisfaction of the Cox Payment Amount against
amounts owing by Xxxxxx to Cox under the Cox MSO Agreement.
(c) Pursuant to the terms of a Cable Affiliation Agreement dated as of
August 26, 1998 (the "TW MSO AGREEMENT" and together with the SSI MSO Agreement
and the Cox MSO Agreement, the "CABLE MSO AGREEMENTS") between PCC and Time
Warner Entertainment Company, L.P. ("TW"), Xxxxxx owes TW certain payments in
respect of cable carriage for Xxxxxx'x national network programming service on
TW owned or controlled cable systems. At the direction of TCAC and Xxxxxx, in
lieu of a direct payment to TCAC of a portion of the Purchase Price, Ventures
has agreed to make a payment in the amount of $2,000,000 or make other
arrangements with TW for the satisfaction of such payment obligation owed by
Xxxxxx to TW (the amount to be paid or otherwise satisfied by Ventures under the
terms hereof being referred to as the "TW PAYMENT AMOUNT" and together with the
SSI Payment Amount and the Cox Payment Amount, collectively the "MSO PAYMENT
AMOUNTS") to be credited against the amount owed by Xxxxxx to TW under the TW
MSO Agreement. At the Closing, Ventures shall deliver, or cause to be delivered,
to TCAC, a receipt in the form of EXHIBIT A-3 annexed hereto (the "TW RECEIPT"),
executed by TW and acknowledging the payment and satisfaction of the TW Payment
Amount against amounts owing by Xxxxxx to TW under the TW MSO Agreement.
(d) Each of the Xxxxxx Parties and the Discovery Parties acknowledges
and agrees that (i) the making of the MSO Payment Amounts by Ventures to SSI ,
Cox and TW shall be consummated by Ventures and SSI, Cox and TW, as the case may
be, pursuant to agreements and arrangements entered into in the sole discretion
of Ventures and SSI, Cox and TW, as the case may be, and neither Xxxxxx nor TCAC
shall have any obligation or liability to Ventures or SSI, Cox and TW, as the
case may be, in respect of any such agreement or arrangement; (ii) none of the
Discovery Parties shall, express or implied, be deemed to have assumed or be the
beneficiary of any rights or obligations under the Cable MSO Agreements by
virtue of Ventures making or satisfying any of the MSO Payment Amounts on behalf
of Xxxxxx or for any other reason, and Xxxxxx and SSI, Cox or TW, as the case
may be, may amend, modify or supplement any of the Cable MSO Agreements for any
reason, including the settlement of any dispute or adjustment of any amounts
owed thereunder in their sole discretion; and (iii) the parties intend for the
payment or satisfaction of the MSO Payment Amounts to SSI, Cox and TW,
respectively, to have the same effect for all purposes between TCAC and Ventures
as if Ventures had paid a portion of the Purchase Price in cash directly to TCAC
and TCAC forwarded such amounts to SSI, Cox or TW. Without limiting the
foregoing,
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the Discovery Parties hereby indemnify and hold harmless TCAC and Xxxxxx for any
and all liabilities, losses or claims of or against Xxxxxx or TCAC arising out
of the agreement or arrangement between Ventures and SSI, Cox or TW, as the case
may be, for the payment or satisfaction of the related MSO Payment Amounts to
SSI, Cox and TW, respectively, including any liabilities, losses or claims
arising out of any failure to make, or recision of amounts paid or other
consideration provided in respect of, the payment or satisfaction by Ventures to
SSI, Cox or TW, as the case may be, of the related MSO Payment Amounts. Not
withstanding anything to the contrary contained herein, none of SSI, Cox or TW
shall, express or implied, be a third party beneficiary of this Agreement.
(e) At the request of the Discovery Parties, the Xxxxxx Parties have
agreed that the Purchase Price shall be constituted by the Net Purchase Price,
the SSI Receipt, the Cox Receipt and the TW Receipt. The Net Purchase Price
shall be increased in the event Ventures shall fail to deliver, on or before the
Closing Date, (i) the SSI Receipt, by the SSI Payment Amount, (ii) the Cox
Receipt, by the Cox Payment Amount, or (iii) the TW Receipt, by the TW Payment
Amount.
2.4 ASSUMPTION OF LIABILITIES AND OBLIGATIONS. As of the Closing Date,
(i) TCAC hereby assigns and Ventures hereby assumes and undertakes any and all
obligations and liabilities of TCAC under the Formation Agreement; (ii) the
Interest is hereby sold, assigned and transferred to Ventures; (iii) all rights,
remedies, obligations and liabilities of TCAC and Xxxxxx of any kind or nature
under the Formation Agreement are terminated, released and discharged; (iv) the
Consulting Agreement and each of the other Related Agreements are terminated and
deemed to be of no further force or effect; (v) DCI is deemed to be released
from its obligations under the Guaranty Agreement, dated as of November 24,
1997, made by DCI in favor of TCAC; and (vi) all obligations and liabilities of
the Xxxxxx Parties under any other documents or agreement entered into with any
of the Discovery Parties, other than the Formation Agreement and the Related
Agreements, shall be terminated, released and discharged.
2.5 MUTUAL RELEASE OF PARTIES. (a) As of the Closing Date, the Xxxxxx
Parties, on the one hand, and the Discovery Parties on the other hand, hereby
release each other from any and all obligations imposed upon either party, or
their affiliated entities, by the terms and conditions of the Formation
Agreement and the Related Agreements and such parties hereby release each other
from any and all claims and liabilities which may arise from the Formation
Agreement and Related Agreements or which may arise from that relationship
between the parties governed by the Formation Agreement and Related Agreements.
(b) As of the Closing Date, any provisions of the Formation
Agreement that can be construed as imposing an obligation or restriction upon
any of the Xxxxxx Parties, or upon any affiliated entity of any Xxxxxx Party,
shall be deemed terminated and null and void as against any such Xxxxxx Party,
or any affiliated entity, and shall thereafter not be enforceable against any
Xxxxxx Party, or any affiliated entity. Specifically, but in no case limiting
the effect of this Section, as of the Closing Date, Sections 3, 5, 6, 7, 8, 10,
11, 12, 13 and 14 shall be terminated and of no force or effect against any
Xxxxxx Party or any entity affiliated with any Xxxxxx Party.
(c) As of the Closing Date, any provisions of the Formation
Agreement that can be construed as imposing an obligation or restriction upon
any Discovery Party, or upon any
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affiliated entity of any Discovery Party, shall be deemed terminated an null and
void as against any Discovery Party, or any affiliated entity, and shall
thereafter not be enforceable against any Discovery Party, or any affiliated
entity of any Discovery Party; provided however that after the Closing Date the
Company shall be obligated to supply TCAC, upon TCAC's reasonable request, with
information relevant to the preparation of tax returns relating to any periods
in which TCAC was a Member of the Company. Specifically, but in no case limiting
the effect of this Section, as of the Closing Date, Sections 3, 5, 6, 7, 8
(except with respect to the proviso set forth in the preceding sentence), 10,
11, 12, 13 and 14 shall be terminated and of no force or effect against any
Discovery Party, or any entity affiliated with any Discovery Party.
(d) Nothing herein shall be deemed to limit any rights,
remedies, liabilities or obligations between any Xxxxxx Parties, on the one
hand, or any Discovery Parties, on the other hand, under any agreement between
any such parties or their affiliates not entered into in connection with the
formation of the Company under the Formation Agreement or any of the
transactions contemplated thereunder, including, without limitation, any of the
MSO Agreements.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF PARTIES
3.1 REPRESENTATIONS AND WARRANTIES. Each of the parties hereto
represents and warrants to the other that: (i) it has all requisite power and
authority to enter into this Agreement and perform its obligations hereunder;
(ii) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of such party; the execution, delivery and
performance of this Agreement will not conflict with or result in a breach or
violation of any provision of corporate charter or the bylaws thereof, or of any
order, writ, injunction, judgment, decree, law, statute, rule or regulation of
any governmental authority applicable to such party; (iii) the execution,
delivery and performance of this Agreement and the documents contemplated hereby
by each such party (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 regulatory authority) other than those which have already been
obtained; (b) will not conflict with any provision of the Certificate of
Incorporation, By-Laws or other organizational documents of any such party; and
(iv) assuming due authorization, execution and delivery by the other parties
hereto (other than its affiliates party hereto), this Agreement is a legal,
valid and binding obligation of such party enforceable against such party in
accordance with its terms. TCAC further represents and warrants to Ventures and
PDI that (i) it is the sole owner of the Interest and that it has not tendered
the Interest or any portion thereof to any party; (ii) the Interest shall be
delivered on the Closing Date to Ventures free and clear of any liens or
encumbrances of any kind; and (iii) the transactions contemplated hereby will
not create any claim, liability, mortgage, lien, pledge, condition, charge,
encumbrance, or other security interest upon the Interest, arising by, through
or under TCAC or any of the other Xxxxxx Parties or any affiliates thereof.
Except for the foregoing, the Interest transferred to Ventures by TCAC is sold
"as is" and without any representation or warranty of any kind, express or
implied, with respect thereto.
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3.2 SURVIVAL OF REPRESENTATIVES 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 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.
3.3 INDEMNIFICATION AND REMEDIES. Each of the Xxxxxx Parties, on the
one hand, and the Discovery Parties, on the other, hereby agrees to indemnify
and hold harmless the other party, its affiliates, officers, directors and
employees, from and against, and to reimburse such party for, any and all
losses, liabilities, and damages, 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 any
inaccuracy in or breach of any representation and warranty, or any breach or
nonfulfillment of any covenant or agreement of such party contained in this
Agreement or in any certificate, document, or instrument delivered by such party
in connection with this Agreement. The remedy of indemnification under this
Section is in addition to any action either party may have in equity, and as
such remedies may be exercised singly or concurrently. In the event that a party
is unable to obtain indemnification pursuant to this Section, such party shall
have the right to pursue any rights and remedies at law or in equity.
SECTION 4
COVENANTS
4.1 HSR ACT FILING. TCAC acknowledges that DCI has filed a notification
and report form and related information pursuant to the HSR Act in connection
with the transactions contemplated by this Agreement. Additionally, PDI shall
promptly file or cause to be filed all further notifications, reports and
information, if any, required to be filed or supplied pursuant to the HSR Act in
connection with the transactions contemplated by this Agreement and shall
request from the proper governmental authority early termination of the waiting
period under the HSR Act.
4.2 COOPERATION. (a) Each of the Xxxxxx Parties, on the one hand, and
the Discovery Parties, on the other, 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
each of the parties 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, 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
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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.
(b) TCAC hereby agrees and acknowledges that the
Company has certain outstanding claims and rights against Landmark
Communications, Inc. ("LCI") arising out of and in respect of the Company's
assumption of certain liabilities relating to cable carriage agreement payments
in an aggregate amount equal to approximately $574,406 related to the business
operations and assets of the Network prior to the date of the Formation
Agreement (such claims and rights being referred to herein as the "LCI Assumed
Liabilities"). TCAC has apprised the Company that it has certain claims and
rights against LCI in respect of advertising commissions collected and retained
by LCI from monies otherwise owed by LCI to TCAC in an aggregate amount equal to
approximately $659,974.91 less the amount paid pursuant to the Closing Letter
Agreement on the Closing Date and any other amounts paid pursuant to the terms
of the Closing Letter Agreement after the Closing Date (such claims and rights
being referred to herein as the "LCI Commission Liabilities"). In respect of the
foregoing, (a) TCAC hereby (i) sells, assigns and transfers any interest it may
have in and to the LCI Assumed Liabilities, if any, to the Company and (ii)
agrees to take any and all actions reasonably requested by and at the expense of
the Company in connection with the Company's pursuit of the LCI Assumed
Liabilities against LCI, and (b) the Company hereby (i) sells, assigns and
transfers any interest it may have in and to the LCI Commission Liabilities, if
any, to TCAC and (ii) agrees to take any and all actions reasonably requested by
and at the expense of TCAC in connection with TCAC's pursuit of the LCI
Commission Liabilities against LCI. Each of the Discovery Parties and the Xxxxxx
Parties agree and acknowledge that none of the Discovery Parties and the Xxxxxx
Parties shall be required to take any action which, in the reasonable opinion of
counsel thereto, would be contrary to law or otherwise expose such Discovery
Party or Xxxxxx Party to civil or criminal penalties, actions, causes, or
liabilities of any kind. Each of the Discovery Parties and the Xxxxxx Parties
further represents, warrants and agrees the none of them has waived, settled or
compromised any of its claims and/or rights against LCI with respect to the LCI
Assumed Liabilities and the LCI Commission Liabilities, and that none of them
shall take any action which would waive, settle or compromise the claims and/or
rights such entity may have against LCI.
4.3 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.
SECTION 5
CLOSING CONDITIONS
5.1 CONDITIONS TO OBLIGATIONS OF PDI. The obligations of the Discovery
Parties to consummate the Closing are subject to the fulfillment on or before
the Closing Date of each of the following conditions:
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(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the Xxxxxx Parties contained in this Agreement shall be true and
correct in all material respects at and as of the Closing Date as though made at
and as of that time.
(b) DELIVERY OF LIEN RELEASES. The Xxxxxx Parties shall have
delivered or caused to be delivered to Ventures a UCC-3 termination statement
and release letter executed by Union Bank of California, evidencing the release
of such lender"s security interest in the Interest.
(c) AMENDMENT TO FORMATION AGREEMENT. TCAC shall have executed
and delivered the First Amendment to Formation Agreement, substantially in the
form of EXHIBIT B annexed hereto.
(d) HSR APPROVAL. Any waiting period under the HSR Act
applicable to the consummation of the transactions contemplated hereby shall
have expired or shall have been earlier terminated.
5.2 CONDITIONS TO OBLIGATIONS OF THE XXXXXX PARTIES. The obligations of
the Xxxxxx Parties to consummate the Closing are subject to the fulfillment on
or before the Closing Date of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the Discovery Parties contained in this Agreement shall be true
and correct in all material respects at and as of the Closing Date as though
made at and as of that time.
(b) DELIVERIES. Ventures shall have made all of the
following deliveries:
(1) SSI Receipt;
(2) Cox Receipt;
(3) TW Receipt;
(4) Payment of the Net Purchase Price to TCAC; and
(5) Payment of the Accrued Payment Obligations to
TCAC and Xxxxxx.
Notwithstanding the foregoing, in the event that Ventures is unable or unwilling
to deliver any of the SSI Receipt, Cox Receipt or TW Receipt, then the Net
Purchase Price shall be adjusted for each such undelivered receipt, as
contemplated under Section 2.3(e), and Ventures shall be released from the
obligation to deliver the applicable receipt hereunder.
(c) HSR APPROVAL. Any waiting period under the HSR Act
applicable to the consummation of the transactions contemplated hereby shall
have expired or shall have been earlier terminated.
5.3 CLOSING DATE. The Closing shall take place at 11:00 a.m. on the
Closing Date which shall be no later than the Upset Date set forth in Sections
6.1(c) and 6.2(c) hereof, at the New York City offices of Holland & Knight LLP,
counsel to the Xxxxxx Parties.
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SECTION 6
TERMINATION
6.1 TERMINATION BY THE XXXXXX PARTIES. This Agreement may be terminated
by Xxxxxx, on behalf of the Xxxxxx Parties, and the transactions contemplated
hereunder abandoned, if the Xxxxxx Parties are not then in material default,
upon written notice to DCI, on behalf of the Discovery Parties, upon the
occurrence of any of the following:
(a) CONDITIONS. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of the Xxxxxx
Parties set forth in this Agreement have not been satisfied or waived in writing
by the Xxxxxx Parties.
(b) JUDGMENTS. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing.
(c) UPSET DATE. If the Closing shall not have occurred by
February 11, 1999 or, if the waiting period under the HSR Act applicable to the
consummation of the transactions contemplated hereby shall have expired prior to
February 8, 1999, on the third business day following such expiration, and the
Xxxxxx Parties are not in material breach of this Agreement.
(d) BREACH. Without limiting any of the rights under this
Agreement of the Xxxxxx Parties, if the Discovery Parties have failed to cure
any material breach of any of their representations, warranties or covenants
under this Agreement within fifteen days after the Discovery Parties have
received written notice of such breach from the Xxxxxx Parties.
6.2 TERMINATION BY THE DISCOVERY PARTIES. This Agreement may be
terminated by the Discovery Parties and transactions abandoned, if Discovery
Parties are not then in material default, upon written notice to Xxxxxx Parties,
upon the occurrence of any of the following:
(a) CONDITIONS. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Discovery
Parties set forth in this Agreement have not been satisfied or waived in writing
by Discovery Parties.
(b) JUDGMENTS. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing.
(c) UPSET DATE. If the Closing shall not have occurred by
February 11, 1999 or, if the waiting period under the HSR Act applicable to the
consummation of the transactions contemplated hereby shall have expired prior to
February 8, 1998, on the third business day following such expiration, and the
Discovery Parties are not in material breach of this Agreement.
(e) BREACH. Without limiting the rights under this Agreement
of the Discovery Parties, if the Xxxxxx Parties have failed to cure any material
breach of any of their representations,
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warranties or covenants under this Agreement within fifteen days after the
Xxxxxx Parties received written notice of such breach from the Discovery
Parties.
6.3 RIGHTS ON TERMINATION. If this Agreement is terminated pursuant to
Section 6.1 or Section 6.2 and neither party is in material breach of this
Agreement, the parties hereto shall not have any further liability to each other
with respect to the transaction contemplated hereunder. If this Agreement is
terminated by the Discovery Parties due to the Xxxxxx Parties' material breach
of this Agreement, the Discovery Parties shall have all rights and remedies
available at law or equity. If this Agreement is terminated by the Xxxxxx
Parties due to the Discovery Parties' material breach of this Agreement, Xxxxxx
Parties shall have all rights and remedies available at law or equity. Each of
the Xxxxxx Parties, on the one hand, and the Discovery Parties, on the other
hand, recognize that if either party breaches this Agreement and refuses to
perform under the provisions of this Agreement, monetary damages alone would not
be adequate to compensate the non-breaching party for its injury. The
non-breaching 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 the
non-breaching party to enforce this Agreement, the party in breach against whom
specific performance is sought shall waive the defense that there is an adequate
remedy at law.
SECTION 7
MISCELLANEOUS
7.1 ENTIRE AGREEMENT. This Agreement embodies the entire understanding
and agreement among the parties concerning the matters addressed herein and
supersedes all prior and contemporaneous negotiations, understandings or
agreements in regard thereto.
7.2 EFFECT OF AGREEMENT. The terms of this Agreement supersede the
terms and conditions of the Formation Agreement.
7.2 AMENDMENTS. This Agreement may not be modified or amended except by
an instrument in writing signed by all of the Parties hereto.
7.3 PRESS RELEASES AND DISCLOSURES. The parties agree that neither the
Xxxxxx Parties, on the one hand, nor the Discovery Parties, on the other, nor
their respective affiliates, will issue or cause publication of any press
release or other announcement or public communication with respect to this
Agreement or the transactions contemplated hereby or otherwise disclose this
Agreement or the transactions contemplated hereby to any third party (other than
their respective attorneys, advisors, financing sources and accountants) without
the written consent of the other party hereto, which consent will not be
unreasonably withheld; provided that nothing herein will prohibit any party from
issuing or causing publication of any press release, announcement or public
communication solely to the extent that such party deems such action to be
required by law or
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pursuant to the applicable rules of a stock exchange; provided further that,
except with respect to filings with the Securities and Exchange Commission, such
party will, whenever practicable, consult with the other party concerning the
timing and content of such press release, announcement or communication before
the same is issued or published; provided further that, for informational
purposes only, the parties will use reasonable best efforts to provide to the
other party prior to such filing the first disclosure to be filed with the
Securities and Exchange Commission regarding the transactions contemplated
hereby, and will use reasonable efforts to file this Agreement on a confidential
basis.
7.4 VALIDITY AND SEVERABILITY. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under pertinent present or future
laws effective during the term of this Agreement, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part of this Agreement
and the remaining provisions of this Agreement shall remain in full force and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement.
7.5 HEADINGS AND USAGE. Paragraph and subparagraph headings have been
inserted herein for convenience only and shall not be construed to be a part
hereof or thereof. Unless the context otherwise requires, words in the singular
include the plural, and words in the plural include the singular.
7.6 COUNTERPARTS. This Agreement may be executed in any one or more
counterparts, each of which shall be an original and all of which shall
constitute one and the same agreement.
7.7 SUCCESSORS AND ASSIGNS.. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that except as specifically provided herein, no
party may assign or otherwise dispose of any of its rights or obligations
hereunder.
7.8 VENUE. Any judicial proceeding brought against any party with
respect to this Agreement may be brought in any court of competent jurisdiction
located in the State of New York. By execution and delivery of this Agreement,
the parties hereto accept, generally and unconditionally, the exclusive
jurisdiction of such courts and any related appellate court, and irrevocably
agrees to be bound by any judgment rendered thereby in connection therewith,
subject to any right of appeal thereof.
7.9 FURTHER ASSURANCES. Each party hereto hereby agrees to do such
other acts and things as the other parties may reasonably request in order fully
to effect the purposes of this Agreement.
7.10 NOTICES. All notices, requests, consents, demands and other
communications hereunder shall be in writing delivered by any of the following:
personal delivery; first class certified or registered mail; return receipt
requested; U.S. Express mail, or an express overnight service (such as Federal
Express), addressed to the respective parties to the Agreement at the addresses
set forth under the signature line of such party or to such other person or
address as a party hereto shall designate to the other party hereto from time to
time in writing forwarded in like
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manner. Any notice, request, consent, demand or communication given in
accordance with the provisions of this paragraph shall be deemed to have been
given and effective when actually received.
7.11 GOVERNING LAW. The validity, interpretation and enforcement of
this Agreement shall be governed by the laws of the State of New York without
giving effect to the conflict of law principles thereof.
[End of Page]
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IN WITNESS WHEREOF, this Agreement has been executed by the undersigned
as of the date first written above.
XXXXXX PARTIES:
TRAVEL CHANNEL ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Its: Vice President
c/o Paxson Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
Attention: General Counsel
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Its: Vice President
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
Attention: General Counsel
DISCOVERY PARTIES:
DISCOVERY COMMUNICATIONS, INC
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Its: Senior Vice President
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
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PROJECT DISCOVERY, INC.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Its: Senior Vice President
c/o Discovery Communications, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
DISCOVERY VENTURES, L.L.C.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Its: Senior Vice President
c/o Discovery Communications, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
THE TRAVEL CHANNEL, L.L.C.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
Its: Senior Vice President
c/o Discovery Communications, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
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