Exhibit 10.21
TAX LIABILITY ALLOCATION AND
INDEMNIFICATION AGREEMENT
This Tax Liability Allocation and Indemnification Agreement (this
"Agreement") is made and entered into as of April 1, 2002, by and between
LIBERTY MEDIA CORPORATION, a Delaware corporation ("LMC"), and LIBERTY SATELLITE
& TECHNOLOGY, INC., a Delaware corporation ("LSAT"), for and on behalf of itself
and each member of the LSAT Group (as defined below).
WITNESSETH:
WHEREAS, it is deemed equitable that with respect to each Taxable period
for which a Joint Return (as defined below) is filed in any Tax jurisdiction,
LSAT pay to Liberty (as defined below) an amount equal to the LSAT Group's
Separate Return Tax Liability (as defined below) in each such Tax jurisdiction;
and
WHEREAS, it is deemed equitable that with respect to each Taxable period
for which a Joint Return is filed in any Tax jurisdiction and in which the
Affiliated Group for such Tax jurisdiction utilizes a net operating loss or
credit of the LSAT Group, Liberty shall, in the manner prescribed hereinafter,
credit against the future liability of LSAT to Liberty hereunder an amount equal
to the Tax benefit obtained by such Affiliated Group as a result of the
utilization of such net operating loss or credit of the LSAT Group; and
WHEREAS, it is deemed equitable that in the event that LSAT or its
Subsidiaries for any reason become disaffiliated from any Affiliated Group, the
portion of the economic burdens and benefits of Tax payments, deficiencies and
refunds of such Affiliated Group which are attributable to the period in which
disaffiliation occurs and for prior Joint Return periods in which LSAT or any
other member of the LSAT Group was included in such Affiliated Group, are to be
allocated to Liberty and LSAT as hereinafter provided.
NOW, THEREFORE, the parties signatory hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall be
defined as follows:
a. "AEG TRANSACTION" shall mean the transaction contemplated by the
Purchase Agreement dated as of August 16, 2001, as amended, by and among Liberty
AEG, Inc., LSAT, and, only for purposes of the final sentence of Section 6.7(a)
thereof, LMC.
b. "AFFILIATED GROUP" shall mean, for any federal, state, local or
foreign Tax jurisdiction, the consolidated, combined or unitary group that files
a Joint Return.
c. "CODE" shall mean the Internal Revenue Code of 1986, as amended.
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d. "CONSOLIDATED RETURN REGULATIONS" shall mean the Treasury Regulations
promulgated under Chapter 6 of Subtitle A of the Code, including, as applicable,
any predecessors or successors thereto.
e. "CONTESTED LSAT GROUP ITEM" shall have the meaning given to such term
in Section 12(b) hereof.
f. "DIT" shall mean any "deferred intercompany transaction" or
"intercompany transaction" within the meaning of the Treasury Regulations (or
predecessors thereto), or any similar transaction under state, local or foreign
Tax law.
g. "ELA" shall mean any "excess loss account" within the meaning of the
Treasury Regulations (or predecessors thereto), or any similar term under state,
local or foreign Tax law.
h. "FINAL DETERMINATION" shall mean a closing agreement with the Internal
Revenue Service or the relevant state, local or foreign Taxing authorities, an
agreement contained in Internal Revenue Service Form 870AD or other similar
form, an agreement that constitutes a determination under Section 1313(a)(4) of
the Code, a claim for refund which has been allowed, a deficiency notice with
respect to which the period for filing a petition with the Tax Court or the
relevant state, local or foreign tribunal has expired or a decision of any court
of competent jurisdiction that is not subject to appeal or as to which the time
for appeal has expired.
i. "GOVERNMENTAL AUTHORITY" shall have the meaning set forth in the
definition of "Tax."
j. "GROUP" shall mean either the Liberty Group or the LSAT Group.
k. "HOLDCO" shall have the meaning set forth in the definition of
"Liberty."
l. "JOINT RETURN" shall mean any federal, state, local or foreign Tax
Return for any Taxable period ending after April 1, 2002 that includes at least
two Legal Entities, of which one Legal Entity is a member of the LSAT Group and
the other Legal Entity is a member of the Liberty Group.
m. "LEGAL ENTITY" shall mean a corporation, partnership, limited
liability company or other legal entity under the corporation, partnership,
limited liability company or other organizational laws of a state or other
jurisdiction.
n. "LIBERTY" shall mean LMC; PROVIDED, that if LMC forms a new wholly
owned corporation ("Holdco"), and LMC merges with a Legal Entity that is wholly
owned by Holdco in a transaction in which the stockholders of LMC receive stock
of Holdco, then from and after the effective time of such merger, the term
"Liberty" shall mean Holdco for all purposes of this Agreement.
o. "LIBERTY GROUP" shall mean Liberty and each of the other Legal
Entities that is or was at any time owned directly or indirectly by Liberty for
all Taxable periods covered by this Agreement; PROVIDED, HOWEVER, that such term
shall not include any Legal Entity for such period as and to the extent that
such Legal Entity is a member of the LSAT Group.
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p. "LLC TRANSACTIONS" mean the transactions contemplated by the Purchase
Agreement dated as of August 16, 2001, as amended, by and among LMC/LSAT
Holdings, Inc., Liberty Brazil DTH Inc., Liberty Mexico DTH Inc., Liberty
Multicountry DTH, Inc., Liberty International DTH, Inc., Liberty Latin Partners,
Inc., LSAT, and, only for purposes of the final sentence of Section 6.7(a)
thereof, LMC.
q. "LOSSES" shall mean costs, expenses, fees, liabilities, obligations
and losses.
r. "LSAT" shall have the meaning set forth in the first paragraph hereof.
s. "LSAT GROUP" shall mean LSAT and each of the other Legal Entities that
is or was at any time owned directly or indirectly by LSAT for all Taxable
periods covered by this Agreement.
t. "PARENT" shall mean, as the context may require, the common parent of
any consolidated, combined, or unitary group that has filed, or is required to
file, any Joint Return.
u. "REDETERMINATION" shall mean any redetermination as the result of an
audit by the Internal Revenue Service (or the relevant state, local or foreign
Governmental Authority), a claim for refund, an amended Tax Return or otherwise.
v. "SEPARATE RETURN" shall mean any Tax Return that is not a Joint
Return.
w. "SEPARATE RETURN TAX LIABILITY" shall have the meaning given to such
term in Section 3 hereof.
x. "SUBSIDIARY" means, as to any Legal Entity, any other Legal Entity of
1which at least (i) 50% of the equity and (ii) 50% of the voting interests are
owned, directly or indirectly, by such first Legal Entity.
y. "TAX" shall mean any tax, wherever created or imposed, and whether of
the United States or elsewhere, and whether imposed by a local, municipal,
governmental, state, foreign, federation or other body (a "Governmental
Authority"), and, without limiting the generality of the foregoing, shall
include income, gross receipts, property, sales, use, license, excise,
franchise, employment, payroll, unemployment insurance, social security, stamp,
environmental, value added, alternative or added minimum, ad valorem, trade,
recording, withholding, occupation or transfer tax, custom or duty or other like
governmental assessment or charge of any kind whatsoever, together with any
related interest, penalties and additions imposed by any Governmental Authority.
z. "TAX ITEM" shall mean any item of income, gain, loss, deduction,
credit, recapture of credit or any other item which increases or decreases Taxes
paid or payable, including an adjustment under Code Section 481 resulting from a
change in accounting method.
aa. "TAX PROCEEDING" shall mean any Tax audit, examination, controversy or
litigation.
bb. "TAX RETURN" shall mean any Tax report, return or other information
(including any attached schedules or any amendments to such report, return or
other information) required to be
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supplied to or filed with a Governmental Authority, including an information
return, claim for refund, amended return or declaration or estimated Tax return.
cc. "TREASURY REGULATIONS" shall mean the Treasury Regulations promulgated
under the Code.
2. PAYMENT OF SEPARATE RETURN TAX LIABILITY BY LSAT TO LIBERTY. With respect
to each Taxable period for which a Joint Return is filed in any Tax
jurisdiction, LSAT shall pay to Liberty an amount equal to the Separate Return
Tax Liability of the LSAT Group, determined in accordance with Section 3 hereof,
such payment by LSAT, including installments of estimated Tax payments, to be
made to Liberty at least five business days prior to the due dates thereof
(including extensions), whether or not the Affiliated Group is obligated to pay
a Tax liability for the applicable period. The amount of estimated Tax payments
to be made by LSAT to Liberty shall be reasonably determined by Liberty.
3. DETERMINATION OF SEPARATE RETURN TAX LIABILITY. For each Taxable period
during which a Joint Return is filed in any Tax jurisdiction, the Separate
Return Tax Liability of the LSAT Group for such Tax jurisdiction shall mean the
hypothetical federal, state, local or foreign Tax liability (computed without
regard to any credit or net operating loss deduction) determined as if the LSAT
Group had filed a separate consolidated, combined or unitary Tax return for the
applicable period in such Tax jurisdiction and its income were taxable at the
highest corporate tax rate in effect for such period; PROVIDED, HOWEVER, that
the Consolidated Return Regulations (or any similar provisions of state, local
or foreign Tax law) and the Joint Returns filed by the Affiliated Group in such
Tax jurisdiction shall determine the timing of the recognition of Tax Items with
respect to DITs and ELAs and the determination of which Legal Entity shall bear
the Tax benefit or burden of such Tax Items, and the LSAT Group shall be
responsible for the Tax Items recognized by its respective members with respect
to any DITs and ELAs. If the computation of the Separate Return Tax Liability of
the LSAT Group pursuant to this Section 3 for a Taxable period does not result
in positive Tax liability, then for purposes of Section 2 hereof the Separate
Return Tax Liability of the LSAT Group shall be deemed to be zero, and any net
operating loss or Tax credit of the LSAT Group for such period shall be taken
into account only as otherwise provided herein. The determination of the
Separate Return Tax Liability of the LSAT Group shall be made by Liberty and
such determination shall be conclusive for purposes hereof.
4. CREDIT TO SEPARATE RETURN TAX LIABILITY OF LSAT. If the LSAT Group is
entitled to a Tax credit or would incur a net operating loss during a Taxable
period if it filed a separate consolidated, combined or unitary Tax return for
such period, or would, if it filed a separate consolidated, combined or unitary
Tax return for all periods covered by this Agreement computed as described in
Section 3, be entitled to a credit or a net operating loss deduction with
respect to net operating losses or credits carried forward or back to such
period (including, for this purpose, net operating losses or credits from
periods prior to the effective date of this Agreement which are carried forward
to such period, but excluding net operating losses or credits utilized by any
Affiliated Group for prior or subsequent periods for which the LSAT Group has
previously received credit because of the Tax benefit to such Affiliated Group
as described below), and if it is determined by Liberty that such credit, net
operating loss or deduction will be utilized by the Affiliated Group in filing
its Joint Return for the current
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Taxable period or for any previous period and that such credit, net operating
loss or deduction will provide a Tax benefit in any such period, Liberty shall
credit against the Separate Return Tax Liability owed by LSAT to Liberty
pursuant to this Agreement for the current Taxable period and all future Taxable
periods until the credit fully utilizes an amount equal to the net Tax benefit
which Liberty, in its reasonable judgement, determines the Affiliated Group will
obtain. Liberty shall apply such credit against the Separate Return Tax
Liability of the LSAT Group as provided above with respect to any Taxable period
as of the first installment date for such year. Liberty shall have the right to
adjust, as of the last day of succeeding quarters the amount credited pursuant
to this Section 4 based upon the determination of Liberty that the amount
credited in preceding quarters was incorrect.
5. TAX LIABILITY OF LSAT IN THE EVENT OF DISAFFILIATION. In the event that
LSAT or any members of the LSAT Group become disaffiliated from any Affiliated
Group for any reason, LSAT shall remain liable under this Agreement for the Tax
liability of the LSAT Group for the Taxable period during which such
disaffiliation occurs and for prior Taxable periods in which LSAT and the other
members of the LSAT Group were members of the Affiliated Group, in accordance
with Section 1.1502-6 of the Consolidated Return Regulations or any similar
provision of state, local or foreign Tax law, and LSAT shall be required to pay
Liberty those amounts for the period of disaffiliation that are determined
pursuant to this Agreement. Payment of such Tax liability by LSAT shall be made
to Liberty at least five business days prior to the due date of the applicable
Tax return. Moreover, should a Tax Proceeding ultimately result in assessment of
a Tax deficiency against any Affiliated Group for years in which LSAT or the
other members of the LSAT Group were affiliated with such Affiliated Group, LSAT
shall remain liable for the LSAT Group's portion of such Tax deficiency
determined pursuant to this Agreement, plus interest and penalties as provided
in Section 9, if any.
6. PAYMENT OF TAX REFUNDS AND UTILIZED TAX BENEFITS TO LSAT IN THE EVENT OF
DISAFFILIATION.
a. If, after the disaffiliation of LSAT from any Affiliated Group, Parent
receives from a Governmental Authority any refund of Tax (and interest, if any)
paid by such Affiliated Group, any amount of which in the sole judgment of
Liberty should be regarded as a refund of amounts paid by LSAT pursuant to
Section 2 hereof, such amount shall be paid by Liberty to LSAT within sixty
business days after receipt by Parent.
b. If, upon the disaffiliation of LSAT from any Affiliated Group, LSAT
has not received a credit against its Separate Return Tax Liability in any Tax
jurisdiction pursuant to Section 4 hereof for any net operating losses or
credits of the LSAT Group that have been utilized by such Affiliated Group (the
"Unpaid Benefits"), Liberty shall pay to LSAT, at such times that, and only to
the extent that, the LSAT Group has a Separate Return Tax Liability for such Tax
jurisdiction (or if the LSAT Group actually files a separate consolidated,
combined or unitary federal, state, local, or foreign Tax Return, its actual Tax
liability shown on such Tax Return), an amount equal to the net Tax benefit
which Liberty, in its reasonable judgement, determines the Affiliated Group has
obtained from the Unpaid Benefits in such Tax jurisdiction. Notwithstanding the
previous sentence Liberty shall not make a payment for any net operating loss or
credit which would have expired at the time that the LSAT Group has a Separate
Return Tax Liability (or actual Tax liability for any separate consolidated,
combined, or unitary federal,
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state, local, or foreign Tax Return). LSAT shall provide Liberty with a written
calculation of the Separate Return Tax Liability of the LSAT Group and a copy of
the actual Tax Return filed by the LSAT Group at such time that the Tax Return
is due for such Tax jurisdiction, or if earlier, is filed by the LSAT Group.
Liberty shall make any payment required by this Section 6(b) within 30 business
days after receipt from LSAT of the written calculation of the LSAT Group's
Separate Return Tax Liability and receipt of a copy of the applicable Tax Return
that has been filed.
c. Notwithstanding Section 6(b) hereof, at such time that the members of
the Liberty Group which are part of an affiliated group (as defined in Section
1504 of the Code) including Liberty for U.S. federal income tax purposes, do not
continue to own stock of LSAT constituting 20% of the voting power of LSAT (a
"Loss of Control"), Liberty shall pay to LSAT an amount equal to the net Tax
benefit which Liberty, in its reasonable judgement, determines the Affiliated
Group has obtained from the Unpaid Benefits (which LSAT has not previously
received credit or payment for pursuant to Sections 4 or 6(b) of this Agreement)
in such Tax jurisdiction, and LSAT shall have no further rights with respect to
such Unpaid Benefits following such payment. Notwithstanding the previous
sentence, Liberty shall not make a payment for any net operating loss or credit
which would have expired at the time of a Loss of Control. Liberty shall make
any payment required by this Section 6(c) within 30 business days following a
Loss of Control.
7. SPECIAL RULES.
a. AEG TRANSACTION AND LLC TRANSACTIONS. For purposes of this Agreement
(including, without limitation, the determination of the Separate Return Tax
Liability of the LSAT Group pursuant to Section 3 hereof and the Credit to
Separate Return Tax Liability of the LSAT Group pursuant to Section 4 hereof),
the determination of whether the LSAT Group would be entitled to a deduction or
loss for any period if it filed a separate consolidated, combined or unitary Tax
return shall be made without regard to any Section 382 or 384 limitation arising
from the AEG Transaction or the LLC Transactions that may be applicable to
Ascent Entertainment Group, Inc.
b. LIBERTY FUNDED COMPENSATION ARRANGEMENTS. For purposes of this
Agreement (including, without limitation, the determination of the Separate
Return Tax Liability of the LSAT Group pursuant to Section 3 hereof and the
Credit to Separate Return Tax Liability of the LSAT Group pursuant to Section 4
hereof), any deduction or loss allowed with respect to certain compensation
arrangements for LSAT Group employees, officers or directors that are funded by
Liberty or any member of the Liberty Group (the "Liberty Funded Compensation
Arrangements") shall be considered a deduction or loss of Liberty (and not a
deduction or loss of the LSAT Group) for all Joint Returns. With respect to each
Separate Return filed by the LSAT Group (including, without limitation, all
Separate Returns of the LSAT Group for Taxable periods beginning after the
disaffiliation of the LSAT Group from any Affiliated Group), LSAT shall pay to
Liberty an amount equal to the net Tax benefit which the LSAT Group has obtained
in any such Taxable period from any deduction or loss resulting from the Liberty
Funded Compensation Arrangements that is utilized by the LSAT Group on such
Separate Return. LSAT shall make the payment required by the preceding sentence
within 30 business days following the date the applicable Tax Return is filed.
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8. ADJUSTMENTS.
a. In the event of any Redetermination of any Joint Return which affects
the calculation of the LSAT Group's Separate Return Tax Liability for any
Taxable period, the amounts required to be paid pursuant to Section 2 shall be
recomputed for such Taxable period to take into account such Redetermination,
and payments pursuant to Section 2, and the credits and payments to the LSAT
Group pursuant to Sections 4 and 6 hereof, shall be appropriately adjusted. LSAT
shall pay Liberty or Liberty shall pay LSAT an amount equal to the difference
between the payment or payments previously made between the parties in respect
of such redetermined Joint Return and the amount that would have been paid
pursuant to this Agreement in respect of such redetermined Joint Return if such
redetermined Joint Return had been filed on the basis of the Redetermination. In
the event Parent is required to pay to any Governmental Authority any amount for
additional Taxes due to the disallowance of all or part of any item utilized by
the Affiliated Group and for which LSAT received a credit or payment for
pursuant to Sections 4 or 6 hereof (or if Parent would have been so required to
pay any Governmental Authority but for other adjustments), LSAT shall pay to
Liberty the amount of such additional Tax paid by Parent (or which Parent would
have been required to pay but for other adjustments); provided, however, the
amount so paid by LSAT to Liberty shall not exceed the cumulative amount
credited or paid to LSAT pursuant to Sections 4 and 6 hereof with respect to
such item (except as provided in Section 9 below).
b. Any payment by Liberty or LSAT required by any Redetermination shall
be paid within seven days after the date of a Final Determination with respect
to such Redetermination.
9. PAYMENT OF INTEREST, PENALTIES AND EXPENSES. Interest, penalties and
expenses incurred by Parent in connection with the amendment of any Joint
Return, and/or any Tax Proceeding, shall be borne equitably by those parties
whose Tax liability may be affected by such amendment, examination or subsequent
proceedings. No interest shall be charged in connection with any allocation
under this Agreement, however, unless interest is payable to a Governmental
Authority.
10. INDEMNIFICATION.
a. Each Legal Entity that is a member of the Liberty Group shall
indemnify and hold harmless each Legal Entity that is a member of the LSAT Group
and their respective directors, officers, employees, affiliates, agents,
successors and assigns (the "LSAT Group Indemnitees") from and against (i) any
Taxes which such member of the Liberty Group is required to pay to a
Governmental Authority (except for Taxes which Liberty has a right of
reimbursement from LSAT), or in respect of which Liberty is required to make a
payment hereunder to LSAT, (ii) any amount LSAT is required to pay to any
Governmental Authority with respect to any Joint Return in excess of the LSAT
Group's Separate Return Tax Liability for such Tax jurisdiction, as such may be
redetermined pursuant to Section 8 hereof, and (iii) any Losses incurred by any
LSAT Group Indemnitee by reason of a breach by any member of the Liberty Group
of its obligations or covenants hereunder.
b. Each Legal Entity that is a member of the LSAT Group shall indemnify
and hold harmless each Legal Entity that is a member of the Liberty Group and
their respective directors,
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officers, employees, affiliates, agents, successors and assigns (the "Liberty
Indemnitees") from and against (i) any Taxes which such member of the LSAT Group
is required to pay to a Governmental Authority (except for Taxes which LSAT has
a right of reimbursement from Liberty) or in respect of which LSAT is required
to make a payment hereunder to Liberty and (ii) any Losses incurred by any
Liberty Indemnitee by reason of a breach by any member of the LSAT Group of its
obligations or covenants hereunder.
11. APPOINTMENT OF AGENT. LSAT consents to the appointment of Liberty as agent
for the members of the LSAT Group, and agrees that Liberty shall have full
authority to prepare the calculation of the LSAT Group's Separate Return Tax
Liability (subject to LSAT's right to review such calculation), to file Joint
Returns and to make any elections on behalf of the LSAT Group. The agency power
of Liberty, as described in this Section, shall extend to all periods during
which LSAT or any member of the LSAT Group is a member of any Affiliated Group,
and, in the event of the disaffiliation of LSAT or any member of the LSAT Group,
Liberty shall retain its agency powers described herein to make or change on
behalf of LSAT, or any member of the LSAT Group, any election or other decision
affecting Tax liabilities for such periods that LSAT or such member of the LSAT
Group was affiliated with the Affiliated Group under the provisions of the Code
providing for elections.
12. FILING OF RETURNS AND CONTESTS.
a. LSAT shall provide Liberty with all information necessary for Liberty
to properly and timely file all Joint Returns. In the event LSAT fails to
provide information in the form requested by Liberty and within sufficient time
to permit the timely filing of any such Joint Return, any penalties, interest,
or other payment obligation assessed against the Liberty Group by reason of a
delay in filing such Tax Return shall be payable by LSAT. If LSAT provides
information in the form requested by Liberty and within sufficient time to
permit the timely filing of a particular Tax Return, any penalties, interest, or
other payments assessed against the Liberty Group by reason of a delay in filing
such Tax Return shall not be payable by LSAT.
b. With respect to taxable years ending after the date hereof, Liberty
shall have the right to control all Tax Proceedings with respect to any member
of the LSAT Group. In any Tax Proceeding in which any Tax Item of the LSAT Group
is a subject of such Tax Proceeding (a "Contested LSAT Group Item"), LSAT shall
be entitled to participate in such Tax Proceeding at its expense, insofar as the
Tax liabilities of the LSAT Group are concerned, and Liberty shall consult with
LSAT with respect to any Contested LSAT Group Item, shall act in good faith with
a view to the merits in connection with such Tax Proceeding, and shall keep LSAT
updated and informed with respect to such Contested LSAT Group Item.
13. SEPARATE RETURNS. Any Separate Return that includes only a member or
members of the LSAT Group and any Taxes with respect to such Separate Return
shall be the responsibility of the LSAT Group, PROVIDED that the LSAT Group
timely files such Separate Returns and pays the Taxes due with respect thereto.
In the event that the LSAT Group does not so file such a Separate Return or does
not pay the Taxes due with respect thereto, LSAT shall indemnify Liberty with
respect to such Separate Return as provided in Section 10 and, notwithstanding
any other provision hereof, Liberty shall be entitled to file such Separate
Return in any manner it chooses so long as it files such Separate Return in good
faith.
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14. COOPERATION. The parties shall cooperate with one another in all matters
relating to Taxes. The LSAT Group shall provide Liberty with such cooperation
and information as is necessary in order to enable Liberty to satisfy its tax,
accounting and other legitimate requirements. Such cooperation and information
by the members of the LSAT Group shall include making their respective
knowledgeable employees available during normal business hours, providing the
information required by reasonable Liberty Tax and accounting questionnaires (at
the times and in the format required by Liberty), maintaining such books and
records and providing such information as may be necessary or useful in the
filing of Joint Returns and Separate Returns, and executing any documents and
taking any actions which Liberty may reasonably request in connection therewith.
Liberty shall provide LSAT, upon request, with copies of any Joint Returns filed
by Liberty that include any member of the LSAT Group, promptly after such Joint
Returns are filed and with copies of schedules and workpapers in Liberty's
possession that were used to prepare such Joint Returns or determine payments
pursuant to this Agreement. LSAT shall provide Liberty, upon request, with
copies of any Tax Returns filed by LSAT promptly after such Tax Returns are
filed and with copies of schedules and workpapers that were used to prepare such
Tax Returns or determine payments pursuant to this Agreement.
15. BINDING EFFECT. This Agreement shall be binding upon and shall inure to the
benefit of Liberty, LSAT, and each other party hereto and each other Legal
Entity that becomes a party hereto pursuant to Section 25 hereof. This Agreement
shall inure to the benefit of, and be binding upon, any successors or assigns of
the parties hereto (including, without limitation, any Legal Entity that becomes
a party hereto pursuant to Section 25). Liberty and LSAT may assign their right
to receive payments under this Agreement but may not assign or delegate their
obligations hereunder.
16. APPLICATION OF AGREEMENT. This Agreement shall be applicable to all Taxable
periods ending after April 1, 2002, and to each Taxable period thereafter, so
long as a Joint Return is filed by Parent.
17. INTERPRETATION. This Agreement is intended to calculate, allocate and
settle certain federal, state, local and foreign Tax liabilities of the members
of the Liberty Group and the LSAT Group, and any situation or circumstance
concerning such calculation and allocation that is not specifically contemplated
hereby or provided for herein shall be dealt with in a manner consistent with
the underlying principles of calculation and allocation in this Agreement.
18. LEGAL AND ACCOUNTING FEES. Unless otherwise specified herein, any fees or
expenses (including internal expenses) for legal, accounting or other
professional services rendered in connection with tax research relating to LSAT,
the preparation of a Joint Return or financial statement or the conduct of any
Tax Proceeding shall be allocated between Liberty and LSAT in a manner resulting
in Liberty and LSAT, respectively, bearing a reasonable approximation of the
actual amount of such fees or expenses hereunder reasonably related to, and for
the benefit of, their respective Groups.
19. EFFECT OF THE AGREEMENT. This Agreement shall determine the liability of
Liberty and LSAT to each other as to the matters provided for herein, whether or
not such determination is effective for purposes of the Code or of state, local
or foreign Tax laws, or for financial reporting purposes or for any other
purposes.
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20. ALLOCATION AMONG LSAT AND ITS INCLUDED SUBSIDIARIES. Nothing herein shall
be deemed to preclude or require any allocation of the Separate Return Tax
Liability of LSAT among or between LSAT and its Subsidiaries, if any.
21. MODIFICATIONS. This Agreement shall not be modified or terminated except by
a writing duly signed by each of the parties hereto, and no waiver of any
provisions of this Agreement shall be effective unless in a writing duly signed
by the party sought to be bound, except that any addition of a new party
pursuant to Section 25 hereof shall not require a writing signed by any other
party.
22. ENTIRE AGREEMENT. This Agreement embodies the entire understanding among
the parties relating to its subject matter and supersedes and terminates any
prior agreements and understandings among the parties with respect to such
subject matter, and no party to this Agreement shall have any right,
responsibility, obligation or liability under any such prior agreement or
understanding. Any and all prior correspondence, conversations and memoranda are
merged herein and shall be without effect hereon. No promises, covenants or
representations of any kind, other than those expressly stated herein, have been
made to induce either party to enter into this Agreement.
23. CODE REFERENCES. Any references to the Code or Treasury Regulations shall
be deemed to refer to the relevant provisions of any successor statute or
regulation and shall refer to such provisions as in effect from time to time.
24. NOTICES. Any payment, notice or communication required or permitted to be
given under this Agreement shall be in writing (including telecopy
communication) and mailed, telecopied or delivered:
If to Liberty or any member of the Liberty Group:
Liberty Media Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to LSAT or any member of the LSAT Group:
Liberty Satellite & Technology, Inc.
00000 Xxxxxxx Xxxxxxxxx
00
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Leaf, Esq.
Facsimile: (000) 000-0000
or to any other address as Liberty or LSAT shall furnish in writing to one
another. All such notices and communications shall be effective when received.
25. NEW MEMBERS. Each of the parties to this Agreement recognizes that from
time to time, new Subsidiaries of LSAT may be added to the LSAT Group. Each of
the parties agrees that any new Subsidiary that is part of the LSAT Group shall
immediately and automatically become a party to this Agreement for all purposes
of this Agreement with respect to Taxable periods ending after such Subsidiary
was added to the LSAT Group. In addition, the parties agree that if LMC forms
Holdco, and LMC merges with a Legal Entity that is wholly owned by Holdco in a
transaction in which the stockholders of LMC receive stock of Holdco, then at
the effective time of such merger, Holdco shall immediately and automatically
become a party to this Agreement for all purposes of this Agreement with respect
to Taxable periods ending after the time such transaction is consummated, with
the same effect as if all references to Liberty herein referred to Holdco rather
than LMC with respect to such Taxable periods. In any such case, and without
limiting the effect of this Section 25, LSAT shall cause any Subsidiary that is
part of the LSAT Group, and LMC shall cause Holdco, to execute and deliver to
each of the other parties hereto such written instruments or agreements as
Liberty (in the case of an LSAT Subsidiary) or LSAT (in the case of Holdco)
shall reasonably request to effect the purpose and intent of this Section 25.
26. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL.
a. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF COLORADO APPLIED TO CONTRACTS MADE AND WHOLLY PERFORMED
IN SUCH STATE. Each of the parties hereto (i) will submit itself to the
exclusive jurisdiction of any United States federal court located in the State
of Colorado or any Colorado State court having subject matter jurisdiction in
the event any dispute arises out of this Agreement, (ii) agrees that venue will
be proper as to proceedings brought in any such court with respect to such a
dispute, (iii) will not attempt to deny or defeat such personal jurisdiction or
venue by motion or other request for leave from any such court and (iv) agrees
to accept service of process at its address for notices pursuant to this
Agreement in any such action or proceeding brought in any such court.
b. EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE
OF THIS WAIVER IS INTENDED TO BE ALL-
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ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS SECTION 26 HAS BEEN FULLY
DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS SHALL NOT BE
SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND
REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND
THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF) THIS
AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT.
27. TERMINATION. This Agreement shall terminate at such time as all obligations
and liabilities of the parties hereto have been satisfied. The obligations and
liabilities of the parties arising under this Agreement shall continue in full
force and effect until all such obligations have been met and such liabilities
have been paid in full, whether by expiration of time, operation of law, or
otherwise. The obligations and liabilities of each party are made for the
benefit of, and shall be enforceable by, the other parties and their successors
and permitted assigns.
28. HEADINGS. The headings used in this Agreement are for convenience only and
shall not in any way affect the meaning or interpretation of any provision
hereof.
29. COPIES. This Agreement may be executed in multiple counterparts each of
which shall be deemed an original, but all of which shall together constitute
one Agreement.
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IN WITNESS WHEREOF, each of the parties have caused this Agreement to be
executed by its respective duly authorized officer as of the date first set
forth above.
LIBERTY MEDIA CORPORATION
BY:
--------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
LIBERTY SATELLITE & TECHNOLOGY, INC.,
for itself and on behalf of each
member of the LSAT Group
BY:
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Acting President
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