SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
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This SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE (this "SETTLEMENT
AGREEMENT") dated as of May 11, 2006, has been entered into by and among ML
Media Partners, L.P. ("ML MEDIA"), the post-confirmation bankruptcy estate of
Century/ML Cable Venture (the "ESTATE"), Adelphia Communications Corp.
("ADELPHIA") and Century Communications Corp. ("CENTURY" and, together with
Adelphia, the "ADELPHIA PARTIES"). ML Media, the Adelphia Parties and the Estate
are referred to herein, collectively as the "PARTIES" or individually as a
"PARTY." Capitalized terms used but not defined herein shall have the meanings
ascribed to them in that certain Interest Acquisition Agreement by and among ML
Media, Century, Century/ML Cable Venture (the "JOINT VENTURE"), Century/ML Cable
Corp. ("CABLE CORP") and San Xxxx Cable, LLC, dated as of June 3, 2005 (together
with all letter agreements executed in connection therewith, the "ACQUISITION
AGREEMENT").
RECITALS
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A. Until a recent bankruptcy court approved sale, ML Media and Century, an
indirect, wholly owned subsidiary of Adelphia, each held a 50% interest in the
Joint Venture.
B. In March 2000, prior to the June 2002 commencement of the bankruptcy
cases currently pending in respect of the Adelphia Parties, ML Media sued, INTER
ALIA, Century and Adelphia in the Supreme Court, New York County, for claims
arising out of alleged violations of a joint venture agreement between the
parties in respect of the Joint Venture (the "STATE COURT ACTION").
C. In December 2001, the parties to the State Court Action entered into an
agreement to settle that litigation. As part of that agreement, ML Media, the
Adelphia Parties, the Joint Venture and Highland Holdings, a partnership
comprised of members of the Rigas family ("HIGHLAND") executed a Leveraged
Recapitalization Agreement, dated December 13, 2001 (the "RECAP AGREEMENT").
D. ML Media subsequently filed suit against the Adelphia Parties, the Joint
Venture, and Highland on June 12, 2002 seeking to enforce its claimed rights
under the Recap Agreement and/or damages for breach of the Recap Agreement (the
"RECAP ACTION"). The Recap Action was subsequently removed to the United States
Bankruptcy Court for the Southern District of New York (the "COURT"). In
response to the Recap Action, the Adelphia Parties and the Joint Venture filed
counterclaims against ML Media and sought to set aside the Recap Agreement.
E. The Court dismissed certain counterclaims of the Adelphia Parties and
the Joint Venture on April 15, 2004.
F. The Adelphia Parties subsequently filed an Amended Answer and
Counterclaims (the "AMENDED ANSWER") on November 23, 2005. Adelphia caused the
Joint Venture to withdraw its remaining counterclaim on January 31, 2006.
G. ML Media moved for summary judgment on January 13, 2006 and the Adelphia
Parties cross-moved for summary judgment on March 13, 2006.
H. ML Media has filed the following proofs of claim: (i) proof of claim
number 17714 against Century; (ii) proof of claim number 17715 against Adelphia;
and (iii) proof of claim number 17 against the Joint Venture (collectively, the
"ML PROOFS OF CLAIM"). The Joint Venture has filed the following proofs of
claim: (i) proof of claim number 17711 against Century; (ii) proof of claim
number 17712 against Adelphia; (iii) proof of claim number 17713 against Arahova
Communications, Inc. ("ARAHOVA"); (iv) proof of claim number 17709 against
Adelphia; and (v) proof of claim number 17710 against Century Cable Holding
Corp. (collectively, the "JV PROOFS OF CLAIM" and, together with the ML Proofs
of Claim, the "PROOFS OF CLAIM").
I. In order to resolve consensually the disputes that are the subject of
the Recap Action and the claims asserted in the Proofs of Claim, ML Media and
the Adelphia Parties agreed to mediation. The Court appointed Xxxx X. Xxxxxxx, a
partner of Xxxxxxx XxXxxxxxx LLP, mediator (the "MEDIATOR") pursuant to a
Consent Order Appointing Mediator dated April 12, 2006 (the "MEDIATION ORDER").
J. The Parties met with the Mediator for two days (April 17, 2006 and April
18, 2006) and have agreed to an amicable resolution of all of the disputes
remaining between ML Media and the Adelphia Parties, and between the Joint
Venture and all other Parties.
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
CONSIDERATION AND TIMING
Section 1.1. Dismissal of Litigation; Payment of Settlement Amount.
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a) In consideration of Century's agreement to the release of the funds
held in the ML Media Escrow Account (as defined in the Sellers Escrow
Agreement (the "SELLERS ESCROW AGREEMENT") dated as of October 31,
2005 among ML Media, Century and The Bank of New York, as escrow agent
(the "ESCROW AGENT")) and payment of the Settlement Amount (as defined
below), and the other terms and conditions of this Settlement
Agreement, ML Media shall (i) dismiss with prejudice all pending
litigation against the Joint Venture, the Estate, the Adelphia
Parties, and Arahova including the State Court Action (styled ML MEDIA
PARTNERS, L.P. V. CENTURY COMMUNICATIONS CORP., ET AL., Index No.
601298/00) and the Recap Action (styled ML MEDIA PARTNERS, L.P. V.
CENTURY/ML CABLE VENTURE, ET AL., Adv. Pro. No. 02-02544 (REG)), (ii)
withdraw with prejudice the ML Proofs of Claim, (iii) authorize the
withdrawal with prejudice of the JV Proofs of Claim; and (iv) consent
to the release in accordance with Section 1.4 hereof of all amounts
held in the Century Escrow Account (as defined in Section 1.4). On the
date hereof, ML Media shall execute, or cause the appropriate counsel
to execute, stipulations of dismissal with prejudice in respect of
each such pending action and
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the Proofs of Claim, to be held in escrow pending receipt of payment
in full of the amounts held in the ML Media Escrow Account and the
Settlement Amount.
b) In consideration of ML Media's agreement to the dismissal with
prejudice of all pending litigation against the Adelphia Parties and
Arahova, the withdrawal of the Proofs of Claim and the other terms and
conditions of this Settlement Agreement, the Adelphia Parties shall
(i) consent to the release to ML Media in accordance with section 1.4
hereof of all amounts held in the ML Media Escrow Account, (ii) upon
entry of an order of the Bankruptcy Court approving this Settlement
Agreement (the "APPROVAL ORDER") agree to have the CENTURY ESCROW
ACCOUNT (as defined in the Sellers Escrow Agreement) divided into two
parts: Part M equal to $87 million (plus any interest pursuant to
Section 1.4(b) collectively, the "SETTLEMENT AMOUNT") and Part C
representing the balance, and (iii) dismiss with prejudice any
counterclaims brought by them or by the Joint Venture (to the extent
not previously dismissed) in the State Court Action and Recap Action.
On the date hereof, the Adelphia Parties and the Estate shall execute,
or shall cause the appropriate counsel to execute, stipulations of
dismissal with prejudice in respect of each such pending action, to be
held in escrow pending release of the stipulations of dismissal
provided by ML Media pursuant to section 1.1(a) above.
Section 1.2. Assumption of Certain Liabilities; Assignment of Rights.
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Notwithstanding anything herein, in the Acquisition Agreement or otherwise
to the contrary, subject to entry of the Approval Order, the Adelphia
Parties are responsible for, and shall satisfy, (i) all Liabilities of the
Sellers based upon, arising out of or related to the Acquisition Agreement,
including, but not limited to, any determination of Working Capital or any
adjustment of the Purchase Price, any claim asserted by the Buyer for
indemnification or otherwise, and any post-closing liability or obligation
of the Sellers other than a breach by ML Media of its obligations under
sections 5.1, 7.1(b), and the access provisions of the last sentence of
section 7.7 of the Acquisition Agreement (the "MID-OCEAN LIABILITIES"), and
(ii) all Excluded Liabilities; provided, however, such obligation is not
intended to, and shall not, cause any Mid-Ocean Liabilities or Excluded
Liabilities that are recourse only to specified funds to cease being of
limited recourse. The Adelphia Parties shall jointly and severally
indemnify, defend and hold harmless ML Media from and against any
liability, damage or expense (including, but not limited to, legal fees and
expenses) resulting from: (x) any Mid-Ocean Liabilities, (y) any Excluded
Liabilities or (z) any Liability of the Cable Venture or Cable Corp. that
became a liability of the Buyer upon consummation of the transactions set
forth in Section 2.1 of the Acquisition Agreement; provided, however, that
the Adelphia Parties shall have no obligation to indemnify ML Media for any
liability or damage pursuant to this clause (z) (as opposed to a cost of
defense (which obligation shall not be affected by this proviso)) until
there shall be an order of a court of competent jurisdiction, not subject
to a bond or a stay pending appeal which delays the requirement of payment,
assessing such liability against ML Media (nothing contained in this
Agreement is intended to, or shall, alter the ultimate liability of Buyer
for such Liabilities) (clauses (x) through (z) are collectively referred to
as the "INDEMNIFIED LIABILITIES"). If any claim is brought against ML Media
with respect to any Indemnified Liabilities, the Adelphia Parties shall
have the right to assume the defense of that claim on behalf of ML Media.
In the event the Adelphia Parties notify ML Media that the Adelphia Parties
are assuming the defense of such matter, (a) the Adelphia Parties shall
defend ML Media against the matter with counsel of
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their choice reasonably satisfactory to ML Media and unless the Adelphia
Parties exercise a Reservation of Rights (as defined below), the Adelphia
Parties shall have no further obligation to indemnify ML Media for costs of
defense, (b) ML Media may retain separate counsel at its sole cost and
expense, provided that if the Adelphia Parties exercise a Reservation of
Rights and it is ultimately determined that the Adelphia Parties were
obligated to provide indemnification pursuant to this section on the
matters subject to the Reservation of Rights, then such separate counsel
and the cost of defense shall be paid by the Adelphia Parties, (c) ML Media
shall cooperate in the defense of the matter and shall not consent to the
entry of a judgment or enter into any settlement with respect to the matter
without the written consent of the Adelphia Parties, and (d) the Adelphia
Parties shall not consent to the entry of a judgment with respect to the
matter or enter into any settlement which does not include a provision
whereby the plaintiff or claimant in the matter releases ML Media from all
liability with respect thereto, without the written consent of ML Media.
Assumption of the defense by the Adelphia Parties shall constitute an
acknowledgement by the Adelphia Parties that the claim being defended is
subject to indemnification pursuant to this Section 1.2, unless the
Adelphia Parties, concurrent with such assumption, expressly reserve their
rights to dispute whether or not the claim is a proper subject for
indemnification, including the specific basis for such dispute (a
"RESERVATION OF RIGHTS").
Section 1.3. Other Consideration.
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a) Upon entry of the Approval Order ML Media shall assign and transfer
the following to a new escrow account to be established under the
Sellers Escrow Agreement (the "NEW ESCROW"), provided that to the
extent such transferred property constitutes property other than cash
and cash equivalents, Century shall control such property so long as
ownership continues in the New Escrow: (i) except as provided in
section 1.3(c) or (d): (x) all of ML Media's rights under the JV Plan
of Reorganization (defined below), and (y) all of ML Media's rights
under the Acquisition Agreement, including the right to receive 50% of
the Deferred Purchase Price and the right to receive funds otherwise
payable from the Indemnity Escrow Account, (ii) all of ML Media's
rights to any amounts held under the Escrow Agreement or the escrow
with respect to the Citibank liens; (iii) all of ML Media's rights to
the Transferred Assets; (iv) all of ML Media's rights to receive any
refund payable with respect to pre-paid workers' compensation
insurance for the Joint Venture; and (v) any proceeds of the foregoing
received from the date hereof to the date the Approval Order is
entered.
b) Upon the Approval Order becoming a Final Order: (i) ML Media and
Century shall terminate the Estate Administration Agreement between
them; and (ii) all property transferred to the New Escrow pursuant to
paragraph (a) above and all proceeds thereof and earnings thereon
shall be released to Century.
c) Upon entry of the Approval Order and notwithstanding anything to the
contrary contained in the Estate Administration Agreement (which shall
be suspended upon entry of the Approval Order), the Adelphia Parties
shall perform all obligations of the Sellers, and assume all of the
duties of the Sellers, under the Acquisition Agreement or the plan of
reorganization of the Joint Venture (the "JV PLAN OF REORGANIZATION")
and shall have the sole and exclusive right to exercise
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all rights of the Sellers (in each case other than those that are
personal to ML Media such as sections 7.1(b) and the last sentence of
section 7.7 of the Acquisition Agreement) under the Acquisition
Agreement or the JV Plan of Reorganization, such rights shall include
the sole and exclusive right to settle or dispute all Purchase Price
Adjustments with the purchaser of the Joint Venture.
d) Effective upon entry of the Approval Order ML Media shall transfer all
funds in the Plan Funding Reserve and the Disputed Claim Reserve to an
account designated by Adelphia, and notwithstanding anything to the
contrary contained in the Estate Administration Agreement (which shall
be suspended upon entry of the Approval Order), the Adelphia Parties
shall be responsible for paying, disputing, or settling all claims
against such Plan Funding Reserve and Disputed Claim Reserve (and
prior to the Approval Order becoming a Final Order may only use the
Plan Funding Reserve and Disputed Claim Reserve (x) for such purpose,
(y) to pay taxes on the earnings on such reserves, and (z) and to
fulfill the indemnification obligations arising under Section 1.2) and
all income taxes payable on the interest earned on the funds in such
account from January 1, 2006. Any refund received with respect to
pre-paid workers' compensation insurance, any income tax refunds or
any other amounts payable to the Estate shall be deposited into the
Century Escrow Account.
e) ML Media and the Adelphia Parties will cause the Joint Venture to
discontinue with prejudice the adversary proceeding pending before the
United States Court, styled CENTURY/ML CABLE VENTURE, ET AL. V. XXXX
X. XXXXX, et al., Adv. Pro. No. 04-04369 (REG). On the date hereof, ML
Media and the Adelphia Parties shall each execute a stipulation of
dismissal in respect of the aforementioned action to be held in escrow
pending release of the stipulations of dismissal provided by ML Media
pursuant to section 1.1(a) above. If Highland shall refuse to sign the
stipulation of dismissal, then the Adelphia Parties shall apply to the
Court for the voluntary dismissal of the action on behalf of the Joint
Venture.
f) Within three Business Days (as defined in Section 1.4 below) of the
entry of the Final Order, Adelphia will file a notice of dismissal
with prejudice pursuant to Fed. R. Civ. P. 41(a) as to ML Media and
the Joint Venture of the adversary proceeding filed before this Court
under the caption ADELPHIA COMMUNICATIONS CORP. X. XXXXXXX, ET AL.,
Index No. AP-06-1355 (REG).
g) All litigation that pursuant to the terms of this Settlement Agreement
is to be dismissed at or after the time that the Approval Order
becomes a Final Order and/or the Settlement Amount is paid shall be
stayed pending the occurrence of such events or the termination of
this Settlement Agreement.
Section 1.4. Timing of Release of ML Media Escrow Account and Timing of
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Payment of Settlement Amount.
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a) Adelphia and Century shall consent to the release of all amounts in
the ML Media Escrow Account upon the execution of this Settlement
Agreement and, as required by the Sellers Escrow Agreement, Century
and ML Media shall deliver to the Escrow Agent a copy of a Court order
ordering payment, and joint
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instructions to make payment, of all amounts in the ML Media Escrow
Account to ML Media within three Business Days after the execution of
this Settlement Agreement. A form of stipulation and order reflecting
such consent is annexed as Exhibit A and shall be executed
simultaneously with the execution of this Settlement Agreement and
submitted to the Court within one Business Day after the execution of
this Settlement Agreement.
b) Part M of the Century Escrow Account shall be established upon the
Approval Order being entered. In the event that the Approval Order is
not entered on or before May 30, 2006, the Settlement Amount shall
begin to accrue interest from that day forward until the Approval
Order is entered at an annual rate of 9% (nine per centum).
c) Upon the Approval Order becoming a Final Order, Part M of the Century
Escrow Account (including any interest payable pursuant to Section
1.4(b)), plus (x) the actual net earnings thereon from the date of the
entry of the Approval Order to the earlier of (i) the six month
anniversary of the date of entry of the Approval Order (the "SMA"), or
(ii) the date the Approval Order becomes a Final Order, and (y) if the
Approval Order does not become a Final Order until after the SMA,
interest at the rate of 9% per annum on $87 million from the SMA to
the date of payment of the Settlement Amount, shall be released to ML
Media, and the balance of the Century Escrow Account shall be released
to Century.
Section 1.5. Timing / Court Approval. Adelphia shall schedule a proceeding
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for approval of this Settlement Agreement no later than the Court's first
available hearing date following ten days following the first Business Day
after the date of this Agreement. The Parties' performance of any of the
obligations set forth herein shall be conditioned upon entry of the
Approval Order in a form reasonably acceptable to ML Media and the Adelphia
Parties. In the event an appeal is taken from the Approval Order, Adelphia
shall seek expedited treatment of such appeal. In the event that the
Approval Order is denied or entered but ultimately reversed, this
Settlement Agreement shall terminate and be of no further force and effect;
provided, however, that (a) ML Media shall have the right to retain the
amounts distributed to ML Media from the ML Media Escrow Account, (b) ML
Media shall reimburse Adelphia (or to the extent paid from the Plan Funding
Reserve, shall reimburse the Plan Funding Reserve) for indemnification
payments made to, or costs incurred on behalf of, ML Media pursuant to
Section 1.2, (c) all property transferred to the New Escrow by ML Media
shall be returned to ML Media, and the Century Escrow Account shall be
returned to a single account governed by the Sellers Escrow Agreement, and
(d) ML Media shall be bound by all action taken by the Adelphia Parties
pursuant to Section 1.3(c) or 1.3(d) prior to the termination of this
Settlement Agreement (but this shall not be deemed a waiver of any rights
that ML Media may have against the Adelphia Parties: (x) arising prior to
the date of this Settlement Agreement, or (y) arising after the date of
this Settlement Agreement for actions taken by the Adelphia Parties
pursuant to Section 1.3(c) or 1.3(d) that constitute gross negligence,
willful misconduct or fraud).
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ARTICLE II
RELEASES
Section 2.1. Mutual General Releases. Effective as of the date when ML
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Media receives payment of the Settlement Amount:
a) Except with respect to any rights or causes of action accruing under
this Settlement Agreement, ML Media, for itself, its successors and
assigns, hereby waives, releases and forever discharges the Adelphia
Parties, the Estate and their successors and affiliates, and each of
their past, present, and future officers, directors, partners,
members, employees, agents, and servants (collectively, the "ADELPHIA
RELEASED PARTIES") from any and all claims, obligations, demands,
actions, causes of action and liabilities, of whatsoever kind and
nature, character and description, whether in law or equity, whether
sounding in tort, contract or under other applicable law, whether
known or unknown, and whether anticipated or unanticipated, of or to
ML Media, which ML Media and its successors and assigns ever had, now
have or may ever have against the Adelphia Released Parties,
including, without limitation, those arising from any event,
transaction, matter, circumstance or fact in any way arising out of,
arising as a result of, related to, with respect to or in connection
with or based in whole or in part on the Joint Venture, the State
Court Action, the Recap Agreement, the Recap Action, or the Proofs of
Claim (such claims, obligations, demands, actions, causes of action
and liabilities referred to herein collectively as the "ML CLAIMS");
provided, however, that this release does not extend to and shall not
be deemed to include, (i) Xxxxxxxx Xxxxxxxxx, P.C. and any employees
or shareholders thereof and (ii) the members of the Rigas family who
are or were partners in Highland.
b) Except with respect to any rights or causes of action accruing under
this Settlement Agreement, the Adelphia Parties and the Estate, for
themselves, their successors and assigns, hereby waive, release and
forever discharge ML Media and its successors and affiliates, and each
of their respective past, present, and future officers, directors,
partners (and past, present and future officers, directors, employees,
agents and partners of the general partner of ML Media and the
partners of the general partner of ML Media), members, employees,
agents, and servants (collectively, the "ML MEDIA RELEASED PARTIES")
from any and all claims, obligations, demands, actions, causes of
action and liabilities, of whatsoever kind and nature, character and
description, whether in law or equity, whether sounding in tort,
contract or under other applicable law, whether known or unknown, and
whether anticipated or unanticipated, of or to the Adelphia Parties,
which the Adelphia Parties and their successors and assigns ever had,
now have or may ever have against the ML Media Released Parties,
including, without limitation, those arising from any event,
transaction, matter, circumstance or fact in any way arising out of,
arising as a result of, related to, with respect to or in connection
with or based in whole or in part on the Joint Venture, the State
Court Action, the Recap Agreement, the Recap Action or the Proof of
Claims (such claims, obligations, demands, actions, causes of action
and liabilities referred to herein collectively as the "ADELPHIA
PARTIES CLAIMS").
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c) The consequences of the foregoing waiver provisions have been
explained by each of the Parties' respective counsel. Each of the
Parties acknowledges that it may hereafter discover facts different
from, or in addition to, those it now knows or believes to be true
with respect to the ML Claims or the Adelphia Parties Claims (as the
case may be), and agrees that this Settlement Agreement and the
releases contained herein shall be and remain effective in all
respects notwithstanding such different or additional facts or the
discovery thereof.
d) To the extent applicable law would not otherwise recognize the
provisions of subsections (a) and (b) of this Section 2.1 as
constituting a full and final release applying to all unknown and
unanticipated claims, as well as those now known or disclosed, the
Parties hereby expressly waive all rights or benefits which either one
or both of them may have now or in the future under any such
applicable law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. ML Media Due Organization, Standing and Authority. ML Media is
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a limited partnership duly organized under the laws of the State of
Delaware, validly existing and in good standing under the laws of the
jurisdiction of its formation. ML Media has all necessary power and
authority to execute, deliver and perform its obligations under this
Settlement Agreement as contemplated by its formation agreements, by-laws,
or other charter, organizational or governing documents.
Section 3.2. Adelphia Due Organization, Standing and Authority. Adelphia is
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a corporation duly organized under the laws of the State of Delaware,
validly existing and in good standing under the laws of the jurisdiction of
its formation. Subject to the receipt of the Court approval described
herein, Adelphia has all necessary power and authority to execute, deliver
and perform its obligations under this Settlement Agreement as contemplated
by its formation agreements, by-laws, or other charter, organizational or
governing documents.
Section 3.3. Century Due Organization, Standing and Authority. Century is a
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corporation duly organized under the laws of the State of Texas, validly
existing and in good standing under the laws of the jurisdiction of its
formation. Subject to the receipt of the Court approval described herein,
Century has all necessary power and authority to execute, deliver and
perform its obligations under this Settlement Agreement as contemplated by
its formation agreements, by-laws, or other charter, organizational or
governing documents.
Section 3.4. Representations and Warranties in Respect of the Acquisition
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Agreement.
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a) ML Media represents and warrants that the representations and
warranties it made in section 5.1 of the Acquisition Agreement were
true both when made and as of October 31, 2005, and hereby indemnifies
and holds harmless the Adelphia Parties for any damages incurred by
the Adelphia Parties as a result of any breaches of such
representations and warranties by ML Media.
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b) Century represents and warrants that the representations and
warranties it made in section 5.2 of the Acquisition Agreement were
true both when made and as of October 31, 2005, and the Adelphia
Parties hereby indemnify and hold harmless ML Media for any damages
incurred by ML Media as a result of any breaches of such
representations and warranties by Century.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Notices. All notices, demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given:
a) when personally delivered;
b) upon actual receipt (as established by confirmation of receipt or
otherwise) during normal business hours, otherwise on the first
Business Day thereafter; or
c) when sent by overnight courier with charges prepaid on the Business
Day of scheduled delivery; in each case, to the following addresses,
or to such other addresses as a Party may from time to time specify by
notice to the other Party given pursuant hereto.
If to ML Media, to:
RP Companies, Inc.
000 Xxxx 00 Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx XxXxx Xxxxx
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to the Estate, to Century and ML Media, with a copy to:
Xxxxxx Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (212)
Attention: Xxxxxxx Xxxxx, Esq.
If to Adelphia, to:
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Adelphia Communications Corporation
0000 XXX Xxxxxxx - 0xx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
If to Century, to:
Century Communications Corporation
c/o Adelphia Communications Corporation
0000 XXX Xxxxxxx - 0xx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
Section 4.2. Covenant Not to Take Action in Breach of Representations and
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Warranties. The Parties agree not to take any actions that will result,
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whether directly or indirectly, in the breach of their respective
representations, warranties, agreements, covenants or obligations contained
in this Settlement Agreement.
Section 4.3. GOVERNING LAW/JURISDICTION. THIS SETTLEMENT AGREEMENT AND THE
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RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE GOVERNED BY AND
CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THAT
WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THE BANKRUPTCY COURT SHALL HAVE THE EXCLUSIVE
JURISDICTION OVER THIS SETTLEMENT AGREEMENT AND THAT ANY CLAIMS ARISING OUT
OF OR RELATED IN ANY MANNER TO THIS SETTLEMENT AGREEMENT SHALL BE PROPERLY
BROUGHT ONLY BEFORE THE BANKRUPTCY COURT. IF AND TO THE EXTENT THAT THE
BANKRUPTCY CASES ARE CLOSED OR DISMISSED, XXX XXXXXX XX XXX XXXXX XX XXX
XXXX AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF
MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION OVER THIS
SETTLEMENT AGREEMENT AND ANY SUCH CLAIMS.
Section 4.4. Entire Agreement. This Settlement Agreement contains the
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entire agreement among the Parties with respect to the subject matter
hereof and there are no agreements, understandings, representations or
warranties among the Parties other than those set forth or referred to
herein.
Section 4.5. Severability. In case any provision of this Settlement
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Agreement shall be determined to be invalid, illegal or unenforceable for
any reason, the remaining provisions of this Settlement Agreement shall be
unaffected and unimpaired thereby, and shall remain in full force and
effect, to the fullest extent permitted by applicable law.
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Section 4.6. Survival of Representations. All representations, warranties,
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agreements, covenants and obligations herein are material, shall be deemed
to have been relied upon by the other Parties, and shall survive the date
hereof.
Section 4.7. Successors and Assigns. This Settlement Agreement shall be
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binding upon and inure to the benefit of the Parties hereto and their
respective successors and assigns, including, without limitation, any
trustee appointed pursuant to the provisions of the Bankruptcy Code.
Section 4.8. No Admission of Liability. This Settlement Agreement is not an
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admission of any liability but is a compromise and settlement of the State
Court Action, Recap Action, and Proofs of Claim. This Settlement Agreement
shall not be treated as an admission of liability. All communications
(whether oral or in writing) between and/or among the Parties, their
counsel and/or their respective representatives relating to, concerning or
in connection with this Settlement Agreement, or the matters covered hereby
and thereby, shall be governed and protected in accordance with Federal
Rule of Evidence 408 and New York Civil Practice Law and Rules Section 4547
to the fullest extent permitted by law.
Section 4.9. Interpretation. This Settlement Agreement has been drafted by
----------- --------------
Xxxxxxx XxXxxxxxx LLP at the request of the Parties. The Parties have been
represented in the negotiation of this document through their legal
counsel. No provision or ambiguity in this Settlement Agreement shall be
resolved against any Party solely by virtue of its participation in the
drafting of this Settlement Agreement.
Section 4.10. Limitation of Liability. Xxxxxxx XxXxxxxxx LLP has drafted
------------ -----------------------
this Settlement Agreement pursuant to Xx. Xxxxxxx'x role as Mediator as set
forth in the Mediation Order. The Mediator, Xxxxxxx XxXxxxxxx LLP, and the
personnel of Xxxxxxx XxXxxxxxx LLP who have assisted the Mediator in the
mediation of the disputes resolved hereby and the drafting of this
Settlement Agreement shall be entitled to the applicable immunity described
in paragraph 4 of the Mediation Order.
Section 4.11. Attorneys' Fees. Each Party shall be responsible for the
------------ ---------------
payment of its own costs and expenses (including attorneys' fees).
Notwithstanding the foregoing, in any action or proceeding to enforce this
Settlement Agreement, the prevailing Party shall be entitled to payment of
its costs and expenses (including attorneys' fees).
Section 4.12. Captions. The captions of this Settlement Agreement are for
------------ --------
convenience only and are not a part of this Settlement Agreement and do not
in any way limit or amplify the terms and provisions of this Settlement
Agreement and shall have no effect on its interpretation.
Section 4.13. Counterparts. This Settlement Agreement may be executed in
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counterparts, by either an original signature or signature transmitted by
facsimile transmission or other similar process and each copy so executed
shall be deemed to be an original and all copies so executed shall
constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank; Next Page is Signature Page.]
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IN WITNESS WHEREOF, the Parties have signed this Settlement Agreement in
multiple counterparts as of the day and date first set forth above.
ML MEDIA PARTNERS, L.P.
BY: MEDIA MANAGEMENT PARTNERS,
ITS GENERAL PARTNER
By: /s/Xxxxxxxxx XxXxx Xxxxx
---------------------------------
Name:
Title:
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/Xxxxxxx Xxxxxxx
---------------------------------
Name:
Title:
CENTURY COMMUNICATIONS CORP.
By: /s/Xxxxxxx Xxxxxxx
---------------------------------
Name:
Title:
ESTATE
BY: CENTURY COMMUNICATIONS CORP.
By: /s/Xxxxxxx Xxxxxxx
-----------------------------
Name:
Title:
BY: ML MEDIA PARTNERS, L.P.
BY: MEDIA MANAGEMENT PARTNERS,
ITS GENERAL PARTNER
By: /s/Xxxxxxxxx XxXxx Xxxxx
-----------------------------
Name:
Title:
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