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EXHIBIT 10.2
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POST-CLOSING COVENANTS AGREEMENT
dated as of September 30, 1997,
among
WESTINGHOUSE ELECTRIC CORPORATION,
GAYLORD ENTERTAINMENT COMPANY,
NEW GAYLORD ENTERTAINMENT COMPANY
and
THE SUBSIDIARIES OF NEW GAYLORD ENTERTAINMENT COMPANY
LISTED ON SCHEDULE A ATTACHED HERETO
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
Indemnification
SECTION 2.01. Indemnification by New Gaylord
Indemnitors . . . . . . . . . . . . . . . . . . . 3
SECTION 2.02. Indemnification by Parent . . . . . . . . . . . . . 4
SECTION 2.03. Procedures Relating to
Indemnification . . . . . . . . . . . . . . . . . 5
SECTION 2.04. Certain Limitations . . . . . . . . . . . . . . . . 7
SECTION 2.05. Limitation on the New Gaylord
Indemnitors' Indemnification
Obligation under Section 2.01(iv) . . . . . . . . 8
SECTION 2.06. Exclusivity of Tax Disaffiliation
Agreement . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III
Other Agreements
SECTION 3.01. Insurance . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.02. Expenses . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.03. Characterization of Payments . . . . . . . . . . . 10
SECTION 3.04. Agreement Not to Compete . . . . . . . . . . . . . 10
SECTION 3.05. Working Capital Adjustment . . . . . . . . . . . . 11
SECTION 3.06. Successors . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.07. Third Party Rights . . . . . . . . . . . . . . . . 15
SECTION 3.08. Joint Defense and Confidentiality
Agreement . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV
Miscellaneous and General
SECTION 4.01 Effectiveness; Modification or
Amendment . . . . . . . . . . . . . . . . . . . 16
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SECTION 4.02. Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.03. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.04. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.05. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.06. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.07. Certain Obligations. . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.08. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.09. Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.10. Severability . . . . . . , . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.11. No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.12. Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Schedule A -- Subsidiaries of New Gaylord
Annex A -- Joint Defense and Confidentiality Agreement
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POST-CLOSING COVENANTS AGREEMENT dated as of September
30, 1997, among WESTINGHOUSE ELECTRIC CORPORATION, a
Pennsylvania corporation ("Parent"), GAYLORD ENTERTAINMENT
COMPANY, a Delaware corporation (the "Company"), NEW GAYLORD
ENTERTAINMENT COMPANY, a Delaware corporation and a wholly
owned subsidiary of the Company ("New Gaylord"), and THE
SUBSIDIARIES OF NEW GAYLORD LISTED ON SCHEDULE A ATTACHED
HERETO (together with New Gaylord, collectively the "New
Gaylord Indemnitors").
WHEREAS, Parent, G Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Sub"), and the COMPANY have entered into an
Agreement and Plan of Merger dated as of February 9, 1997 (the "Merger
Agreement"), providing for the Merger (as defined in the Merger Agreement) of
Sub with and into the Company;
WHEREAS, the Board of Directors of the Company has approved an Agreement
and Plan of Distribution in the form of Annex A attached to the Merger Agreement
with such changes as may be made in accordance with Section 6.14 of the Merger
Agreement (the "Distribution Agreement"), which will be entered into prior to
the Effective Time (as defined in the Merger Agreement), pursuant to and subject
to the terms of which (a) the assets and businesses of the Company and its
subsidiaries (as defined in the Merger Agreement) will be restructured as a
result of which (i) all the assets of the Company and its subsidiaries, other
than the Retained Assets (as defined in the Merger Agreement), will be held by
New Gaylord or one or more of New Gaylord's subsidiaries and (ii) all the
liabilities of the Company and its subsidiaries, other than the Retained
Liabilities (as defined in the Merger Agreement), will be assumed by New Gaylord
or one or more of New Gaylord's subsidiaries, (b) New Gaylord will be
recapitalized in accordance with Article II of the Distribution Agreement and
(c) following such restructuring and recapitalization, the Company will
distribute (the "Company Distribution") to each holder of record of shares of
Class A Common Stock, $.01 par value, of the Company ("Company Class A Common
Stock") and Class Common Stock, $.01 par value, of the Company ("Company Class B
Common Stock" and, together with the Company Class A Common Stock, "Company
Common Stock") a number of shares of Common Stock, $.01 par value, of New
Gaylord equal to one-third of the number of shares of Company Common Stock held
by such holder;
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WHEREAS, the execution and delivery of this Agreement by the parties hereto
is a condition to the obligations of the parties to the Merger Agreement to
consummate the Merger;
WHEREAS, the execution and delivery of this Agreement by the parties hereto
is a condition to the obligations of the parties to the Distribution Agreement
to consummate the Company Distribution; and
WHEREAS, the parties to this Agreement have determined that it is necessary
and desirable to set forth certain agreements that will govern certain matters
that may arise following the Restructuring (as defined in the Merger Agreement),
the Company Distribution and the Merger.
NOW, THEREFORE, in consideration of the foregoing, and the representations,
warranties, covenants and agreements contained in this Agreement, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings assigned to such terms in the
Merger Agreement or, if not defined in the Merger Agreement, the Distribution
Agreement. As used in this Agreement, the following terms shall have the
following respective meanings:
"Filings" shall mean the Registration Statements, the Proxy
Statement-Prospectus and any other document filed or required to be filed with
the SEC in connection with the transactions contemplated by the Transaction
Agreements, or any preliminary or final form thereof or any amendment or
supplement thereto.
"New Gaylord Indemnities" shall mean New Gaylord, each Affiliate (as
defined in the Distribution Agreement) of New Gaylord, including any of its
direct or indirect subsidiaries, and each of their respective Representatives
and each of the heirs, executors, successors and assigns of any of the
foregoing.
"Indemnifiable Losses" shall mean, subject to Section 2.04, all losses,
liabilities, damages,
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deficiencies, obligations, fines, expenses, claims, demands, actions, suits,
proceedings, judgments or settlements, whether or not resulting from Third Party
Claims (as defined in Section 2.03(a)), including interest and penalties
recovered by a third party with respect thereto and out-of-pocket expenses and
reasonable attorneys' and accountants' fees and expenses incurred in the
investigation or defense of any of the same or in asserting, preserving or
enforcing any of the Indemnitee's rights hereunder, suffered or incurred by an
Indemnitee.
"Indemnitee" shall mean any of the Parent Indemnities or the New Gaylord
Indemnities who or which may seek indemnification under this Agreement.
"Parent Indemnities" shall mean Parent, each Affiliate of Parent, including
any of its direct or indirect subsidiaries (including, after the Effective Time,
the Retained Companies), and each of their respective Representatives and each
of the heirs, executors, successors and assigns of any of the foregoing.
ARTICLE II
INDEMNIFICATION
SECTION 2.01. Indemnification by New Gaylord Indemnitors. Subject to the
provisions of this Article II, the New Gaylord Indemnitors shall jointly and
severally indemnify, defend and hold harmless the Parent Indemnities from and
against, and pay or reimburse the Parent Indemnities for, all Indemnifiable
Losses, as incurred:
(i) relating to or arising from the Entertainment Business, the
assets of the Entertainment Business or the Assumed Liabilities
(including the failure by New Gaylord or any New Gaylord Company to
pay, perform or otherwise discharge any of the Assumed Liabilities in
accordance with their terms), whether such Indemnifiable Losses relate
to or arise from events, occurrences, actions, omissions, facts or
circumstances occurring, existing or asserted before, at or after the
Effective Time;
(ii) relating to or arising from any untrue statement or alleged
untrue statement of a material fact contained in any of the Filings,
or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
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statements therein, in light of the circumstances under which they
were made, not misleading; but only in each case with respect to
information provided by the Company relating to the Company or any of
its subsidiaries (including the Retained Subsidiaries) contained in or
omitted from the Filings;
(iii) relating to or arising from the breach by any New Gaylord
Company of any agreement or covenant contained in any Transaction
Agreement (other than the Tax Disaffiliation Agreement, the Ancillary
Agreements and the Stockholder Agreement) which by its express terms
is to be performed or complied with after the Effective Time; or
(iv) relating to or arising from any breach or inaccuracy of any
representation or warranty of the Company contained in the Merger
Agreement
SECTION 2.02. Indemnification on by Parent. Subject to the provisions of
this Article II, Parent shall indemnify, defend and hold harmless the New
Gaylord Indemnities from and against, and pay or reimburse the New Gaylord
Indemnities for, all Indemnifiable Losses, as incurred:
(i) subject to the provisions of Sections 2.01(iv), relating to
or arising from the Retained Business, the Retained Assets or the
Retained Liabilities (including the failure by any Retained Company to
pay, perform or otherwise discharge any of the Retained Liabilities in
accordance with their terms), whether such Indemnifiable Losses
relate to or arise from events, occurrences, actions, omissions,
facts of circumstances occurring, existing or asserted before, at or
after the Effective Time;
(ii) relating to or arising from any untrue statement or alleged
untrue statement of a material fact contained in any of the Filings,
or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statemetns
therein, in light of the circumstances under which they were made, not
misleading; but only in each case with respect to information provided
by Parent relating to Parent or any of its subsidiaries other than the
Retained Companies contained in or omitted from the Filings; or
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(iii) relating to or arising from the breach by Parent or any
Retained Company of any agreement or covenant contained in any
Transaction Agreement (other than the Tax Disaffiliation Agreement,
the Ancillary Agreements and the Stockholder Agreement) which by its
express terms is to be performed or complied with after the Effective
Time.
SECTION 2.03. Procedures Relating to Indemnification. (a) In order for an
Indemnitee to be entitled to any indemnification provided for under this
Agreement in respect of, arising out of or involving a claim made by any Person
who is not an Indemnitee against the Indemnitee (a "Third Party Claim"), such
Indemnitee must notify the party who may become obligated to provide
indemnification hereunder (the "indemnifying party") in writing, and in
reasonable detail, of the Third Party Claim reasonably promptly, and in any
event within 20 business days after receipt by such Indemnitee of written notice
of the Third Party Claim; provided, however, that failure to give such
notification shall not affect the indemnification provided hereunder except to
the extent the indemnifying party shall have been actually prejudiced as a
result of such failure; provided further, however, that with respect to any
matter for which any New Gaylord Indemnitor is the indemnifying party, such New
Gaylord Indemnitor shall be deemed to have received notice with respect to all
matters by or against any Retained Company that arose prior to, or were
otherwise pending at, the Effective Time. After any required notification (if
applicable), the Indemnitee shall deliver to the indemnifying party, promptly
after the Indemnitee's receipt thereof, copies of all notices and documents
(including court papers) received by the Indemnitee relating to the Third Party
Claim.
(b) If a Third Party Claim is made against an Indemnitee, the indemnifying
party will be entitled to participate in the defense thereof and, if it so
chooses, to assume the defense thereof (at the expense of the indemnifying
party) with counsel selected by the indemnifiying party and reasonably
satisfactory to the Indemnitee. Should the indemnifying party so elect to assume
the defense of a Third Party Claim, the indemnifying party will not be liable to
the Indemnitee for any legal expenses subsequently incurred by the Indemnitee in
connection with the defense thereof. If the indemnifying party assumes such
defense, the Indemnitee shall have the right to participate in the defense
thereof and to employ counsel, at its own expense, separate from the counsel
employed by the indemnifying party, it being understood that
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the indemnifying party shall control such defense. The indemnifying party
shall be liable for the fees and expenses of counsel employed by the Indemnitee
for any period during which the indemnifying party has not assumed the defense
thereof (other than during any period in which the Indemnitee shall have failed
to give notice of the Third Party Claim as provided above). Notwithstanding the
foregoing, the indemnifying party shall not be entitled to assume the defense of
any Third Party Claim (and shall be liable for the fees and expenses of counsel
incurred by the Indemnitee in defending such Third Party Claim) if the Third
Party Claim seeks an order, injunction or other equitable relief or relief for
other than money damages against the Indemnitee which the Indemnitee reasonably
determines, after conferring with its outside counsel, cannot be separated from
any related claim for money damages. If such equitable relief or other relief
portion of the Third Party Claim can be so separated from that for money
damages, the indemnifying party shall be entitled to assume the defense of the
portion relating to money damages. The indemnification required by Section 2.01
or 2.02, as the case may be, shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills
are received or the indemnifiable Loss is incurred. If the indemnifying party
chooses to defend or prosecute a Third Party Claim, all the parties hereto shall
cooperate in the defense or prosecution thereof, which cooperation shall include
the retention in accordance with the Distribution Agreement and (upon the
indemnifying party's request) the provision to the indemnifying party of records
and information which are reasonably relevant to such Third Party Claim, and
making employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder. It the
indemnifying party chooses to defend or prosecute any Third Party Claim, the
Indemnitee will agree to any settlement, compromise or discharge of such Third
Party Claim which the indemnifying party may recommend and which by its terms
obligates the indemnifying party to pay the full amount of liability in
connection with such Third Party Claim; provided, however, that, without the
Indemnitee's consent, the indemnifying party shall not consent to entry of any
judgment or enter into any settlement (x) that provides for injunctive or other
nonmonetary relief affecting the Indemnitee or (y) that does not include as an
unconditional term thereof the giving by each claimant or plaintiff to such
Indemnitee of a release from all liability with respect to such claim. If the
indemnifying party shall have assumed the defense of a Third Party Claim, the
Indemnitee shall not admit any
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liability with respect to, or settle, compromise or discharge, such Third Party
Claim without the indemnifying party's prior written consent (which consent
shall not be unreasonably withheld).
(c) In order for an Indemnitee to be entitled to any indemnification
provided for under this Agreement in respect of a claim that does not involve a
Third Party Claim, the Indemnitee shall deliver notice of such claim (in
reasonably sufficient detail to enable the indemnifying party to evaluate such
claim) with reasonable promptness to the indemnifying party. The failure by any
Indemnitee so to notify the indemnifying party shall not relieve the
indemnifying party from any liability which it may have to such Indemnitee under
this Agreement, except to the extent that the indemnifying party shall have been
actually prejudiced by such failure. If the indemnifying party does not notify
the Indemnitee within 20 calendar days following its receipt of such notice that
the indemnifying party disputes its liability with respect to such claim under
Section 2.01 or 2.02, as the case may be, the claim shall be conclusively deemed
a liability of the indemnifying party under Section 2.01 or 2.02, as the case
may be, and the indemnifying party shall pay the amount of such liability to the
Indemnitee on demand or, in the case of any notice in which the amount of the
claim (or any portion thereof) is estimated, on such later date when the amount
of such claim (or such portion thereof) becomes finally determined. If the
indemnifying party has timely disputed its liability with respect to such claim,
as provided above, the indemnifying party and the Indemnitee shall proceed in
good faith to negotiate a resolution of such dispute and, if not resolved
through negotiations, such dispute shall be resolved by litigation in an
appropriate court of competent jurisdiction.
(d) The parties hereto agree that New Gaylord shall be the representative
of the other New Gaylord Indemnitors for all purposes of this Section 2.03, and
as such all deliveries, notices and other communications made or delivered to
New Gaylord shall also be deemed to have been made or delivered to the other New
Gaylord Indemnitors, and all elections, selections of counsel, choices,
agreements and consents made or delivered by New Gaylord shall be deemed to have
also been made or delivered by the other applicable New Gaylord Indemnitors, and
shall be binding thereon. Notwithstanding the foregoing, the parties hereto
agree that nothing contained in this Section 2.03(d) shall in any manner affect,
limit or impair the rights of
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the Parent Indemnitees to indemnification from any New Gaylord Indemnitor
pursuant to Section 2.01.
SECTION 2.04. Certain Limitations. (a) The amount of any Indemnifiable
Losses or other liability for which indemnification is provided under this
Agreement or any other amounts payable or reimbursable by one party to another
under this Agreement shall be net of any amounts actually recovered by the
Indemnitee from third parties (including, without limitation, amounts actually
recovered under insurance policies) with respect to such Indemnifiable Losses or
other liability or amounts.
(b) All indemnification payments under this Agreement shall be determined
on a pre-tax basis, i.e., without regard to the tax consequences to the
Indemnitee of making a payment that is indemnified by another party under this
Agreement or of receiving a payment under this Agreement as indemnification
therefor.
SECTION 2.05. Limitation on the New Gaylord Indemnitors' Indemnification
Obligation Section 2.01(iv) (a) The New Gaylord Indemnitors shall not have any
liability under Section 2.01(iv) unless the aggregate of all Indemnifiable
Losses for which the New Gaylord Indemnitors would, but for this Section 2.05,
be liable under Section 2.0l(iv) exceed on a cumulative pre-tax basis an amount
equal to $8,250,000.
(b) The parties hereto agree that the more failure to list a Contract on
the Company Disclosure Schedule shall not in and of itself constitute an
Indemnifiable Loss. The parties hereto further agree that the foregoing shall in
no way limit or impair any right of any Parent Indemnitee to indemnification
under Section 2.01 or to recover any Indemnifiable Loss arising out of or
otherwise related to any such Contract or the terms thereof, when considered
individually or together with the terms of any other Contract, including with
respect to any revenues that may be lower than otherwise reasonably anticipated
by Parent, any expenses that may be higher than otherwise reasonably anticipated
by Parent or any other Indemnifiable Loss whatsoever resulting from such
Contract or its terms. The parties hereto further agree that this paragraph is
not in any way intended to impose any different or more stringent burden of
proof on any Parent Indemnitee in asserting or enforcing any right than that
which may have existed in the absence of the foregoing.
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SECTION 2.06. Exclusivity of Tax Disaffiliation Agreement. Notwithstanding
anything in this Agreement to the contrary, the Tax Disaffiliation Agreement
shall be the exclusive agreement among the parties with respect to all Tax
matters, including indemnification in respect of Tax matters.
ARTICLE III
OTHER AGREEMENTS
SECTION 3.01. Insurance. In the event that prior to the Effective Time any
Retained Asset suffers any damage, destruction or other casualty loss, New
Gaylord shall, or shall cause a New Gaylord Subsidiary to, surrender to Parent
(i) all insurance proceeds received with respect to such damage, destruction or
loss and (ii) all rights of the New Gaylord Companies with respect to any causes
of action, whether or not litigation has commenced as of the Effective Time, in
connection with such damage, destruction or loss. New Gaylord shall, and shall
cause each New Gaylord Subsidiary to, make available to the Retained Companies
the benefit of any workers' compensation, general liability, product liability'
automobile liability, umbrella (excess) liability or crime or other insurance
policy covering the Company or any of its subsidiaries (including the Retained
Subsidiaries) and relating to the Retained Business with respect to insured
events or occurrences prior to the Effective Time (whether or not claims
relating to such events or occurrences are made prior to or after the Effective
Time); provided, however, that (i) all of New Gaylord's costs and expenses
incurred in connection with the foregoing are promptly paid by Parent and (ii)
such benefit shall be subject to (and recovery thereon shall be reduced by the
amount of) any applicable deductibles and co-payments provisions or any payment
or reimbursement obligations of New Gaylord or any of its subsidiaries or
Affiliates in respect thereof. The New Gaylord Companies shall promptly pay to
Parent all insurance proceeds relating to the Retained Business received by any
Hew Gaylord Company under any insurance policy.
SECTION 3.02. Expenses. Except as otherwise expressly provided in the
Transaction Agreements, New Gaylord (and not the Company) shall be responsible
for and agrees to pay all expenses of the Company and its subsidiaries directly
related to the Restructuring, the Company Distribution and the Merger.
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SECTION 3.03. Characterization of Payments. The payments made pursuant to
this Agreement shall be treated as occurring immediately before the Company
Distribution, and none of the New Gaylord Companies, the Retained Companies and
Parent and its subsidiaries shall take any position inconsistent with such
treatment before any Taxing Authority, except to the extent that a Final
Determination (as defined in the Tax Disaffiliation Agreement) with respect to
the recipient party causes any such payment to not be so treated.
SECTION 3.04. Agreement Not to Compete. (a) New Gaylord understands that
Parent shall be entitled to protect and preserve the going concern value of the
Retained Business to the extent permitted by law and that Parent would not have
entered into the Merger Agreement absent the provisions of this Section 3.04.
Therefore, New Gaylord agrees that, commencing at the Effective Time and
continuing for a period of 5 years thereafter, it shall not, and shall not
permit any of its subsidiaries to, engage in, directly or indirectly, alone or
in association with any other person, the business of (i) owning or operating
retail stores with a motor sports theme other than those located in the Opryland
complex, (ii) owning or operating a Cable Network (as defined below) featuring
country music videos and/or a significant amount of musical, sports (including,
but not limited to, motor sports and outdoor sports), variety or other
entertainment features or series the theme of which is perceived by the viewing
public as being, or related to, that which is commonly known as "country
entertainment" programming (the "Theme"), or owning, sharing in the earnings of,
financing or investing in the capital stock of any person engaged in such
business or (iii) providing or otherwise making available for viewing on a Cable
Network or an over-the-air broadcast television station or network programming
featuring or related to the Theme (other than occasional (not regularly
scheduled) country music related specials for viewing on an over-the-air
broadcast television station or network), or owning, sharing in the earnings of,
financing or investing in the capital stock of any person engaged in such
business; provided, however, that nothing contained herein shall prohibit New
Gaylord or its subsidiaries from owning or operating the CMT International
network in any area outside of the United States and Canada; provided further,
however, that other than country music videos, the CMT International network's
programming will not primarily consist of programming featuring or related to
the Theme; provided further, however, that ownership for investment purposes
only of less than 5% of any class of voting stock of any
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publicly held corporation shall not constitute a violation hereof. In addition,
New Gaylord agrees that for a period of one year from the Effective Time it
shall not, and shall cause its subsidiaries not to, directly or indirectly, (i)
induce any Retained Employee to leave the employ of the Retained Companies, or
recommend to any other person that they employ or solicit for employment any
such employee, or (ii) knowingly hire any such employee, unless such employee is
no longer employed by the Retained Companies. As used herein, "Cable Network"
shall mean a television network making programming available for viewing by any
technology other than over-the-air broadcast (whether or not retransmitted via
cable), including, without limitation, cable television, MMDS, SMATV, DES, TVRO
and so-called "superstations".
(b) Parent understands that New Gaylord shall be entitled to protect and
preserve the going concern value of the CMT International network to the extent
permitted by law Therefore, Parent agrees that, commencing at the Effective Time
and continuing for a period of 5 years thereafter, it shall not, and shall not
permit any of its subsidiaries to, engage in, directly or indirectly, alone or
in association with any other person, the business of owning or operating a
Cable Network that is telecast outside of the United States and Canada and that
primarily features country music videos and occasional country music-related
specials; provided, however, that nothing contained herein shall prohibit Parent
or its subsidiaries from owning or operating for viewing outside of the United
States and Canada a Cable Network featuring the Theme or programming that is
otherwise of a type that is currently featured on the TNN network. Parent shall
not be deemed in breach of this Section 3.04(b) or of the license described in
Section 5.1(f) of the Distribution Agreement by virtue of Parent or any of its
subsidiaries having licensed or renewing the licenses of any current
distributors of CMTV in markets that ate outside the United States and Canada:
provided, however, that neither Parent nor any of its subsidiaries shall license
any additional distributors of CMTV in such markets.
SECTION 3.05. Working Capital Adjustment. (a) Within 90 days after the
Closing Date, Parent shall prepare and deliver to New Gaylord (i) an audited
combined balance sheet of the Retained Companies (the "Closing Balance Sheet"),
prepared from the books and records of the Retained Companies, certified by
Parent's independent auditors, and (ii) a statement (the "Closing Statement")
setting forth Working Capital (as defined below) as of the Effective Time
("Closing Working Capital"), together with a
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certificate of Parent's independent auditors that the Closing Statement has been
prepared in accordance with this Section 3.05.
During the 30 day period following New Gaylord's receipt of the Closing
Statement, New Gaylord and its independent auditors will be permitted to review
the working papers of Parent's independent auditors relating to the Closing
Balance Sheet and the Closing Statement. The Closing Statement shall become
final and binding upon the parties on the thirtieth day following receipt
thereof, unless New Gaylord gives written notice of its disagreement with the
Closing Statement ("Notice of Disagreement") to Parent prior to such date. Any
Notice of Disagreement shall (i) specify in reasonable detail the nature of any
disagreement so asserted, (ii) only include disagreements based on Closing
Working Capital not being calculated in accordance with this Section 3.05 and
(iii) be accompanied by a certificate of new Gaylord 's independent auditors
that they concur with each of the positions taken by New Gaylord in the Notice
of Disagreement. If a Notice of Disagreement is received by Parent in a timely
manner, then the Closing Statement (as revised in accordance with clauses (A) or
(B) below) shall become final on the earlier of (A) the date Parent and New
Gaylord resolve in writing any differences they have with respect to the matters
specified in the Notice of Disagreement or (B) the date any disputed matters are
finally resolved in writing by the Accounting Firm (as defined below).
During the 30 day period following delivery of a Notice of Disagreement,
Parent and New Gaylord shall seek in good faith to resolve in writing any
differences which they may have with respect to the matters specified in the
Notice of Disagreement. During such period Parent and its independent auditors
shall have access to the working papers relating to the Notice of Disagreement
At the end of such 30 day period (or such longer period as the parties may
agree), Parent and New Gaylord shall submit to an independent accounting firm
(the "Accounting Firm") for review and resolution any and all matters which
remain in dispute and which were properly included in the Notice of
Disagreement. The Accounting Firm shall be a nationally recognized independent
public accounting firm agreed upon by Parent and New Gaylord in writing. Parent
and New Gaylord shall jointly use all reasonable efforts to cause the Accounting
Firm to render a decision within 30 days following submission. Parent and New
Gaylord agree that judgment may be entered upon the determination of the
Accounting Firm in any court having jurisdiction over the
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party against which such determination is to be enforced. The cost of any
dispute resolution (including the fees and expenses of the Accounting Firm and
reasonable attorney fees and expenses of the parties) pursuant to this Section
3.05 shall be borne by Parent and New Gaylord in inverse proportion as they may
prevail on matters resolved by the Accounting Firm, which proportionate
allocations shall also be determined by the Accounting Firm at the time the
determination of the Accounting Firm is rendered on the merits of the matters
submitted. The fees and disbursements of Parent's independent auditors in
connection with their review of any Notice of Disagreement shall be borne by
Parent, and the fees and disbursements of New Gaylord's independent auditors
incurred in connection with their review of the Closing Statement shall be borne
by New Gaylord.
(b) If, the Closing Working Capital is less than $53,798,000 (the "WC
Amount"), New Gaylord shall, and if the Closing Working Capital is greater than
the WC Amount, Parent shall, within 10 business days after the Closing Statement
becomes final and binding on the parties, make payment by wire transfer of
immediately available funds of the amount of such difference together with
interest thereon at the prime rate as reported in the Wall Street Journal on the
date the Closing Statement becomes final and binding on the parties, calculated
on the basis of the actual number of days elapsed divided by 365, from the date
of the Effective Time to the date of actual payment. Notwithstanding the
foregoing, in the event that New Gaylord gives a Notice of Disagreement to
Parent in accordance with this Section 3.05 and either Parent or New Gaylord
shall be required to make a payment to the other regardless of the resolution of
the items contained in the Notice of Disagreement, then Parent or New Gaylord,
as applicable, shall, within 10 business days of the receipt of the Notice of
Disagreement, make payment to the other by wire transfer of immediately
available funds of the lesser of the two amounts that may be owed by Parent or
New Gaylord, as applicable, pending resolution of the items contained in the
Notice of Disagreement together with interest thereon on at the prime rate as
reported in the Wall street Journal on the date of the Notice of Disagreement,
calculated as described above, and such payment shall be credited against the
payment required pursuant to the first sentence of this paragraph.
(c) The term "Working Capital" shall mean Current Assets minus Current
Liabilities (in each case as defined below). The WC Amount equals Working
Capital as set forth on the Retained Business Balance Sheet (as defined in the
17
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Merger Agreement) for December 31, 1996, provided to Parent by New Gaylord prior
to the execution of the Merger Agreement. The terms "Current Assets" and
"Current Liabilities" shall mean the current assets and current liabilities of
the Retained Business calculated in accordance with GAAP except that (i)
accruals for taxes shall be excluded, (ii) all programming assets shall be
treated as Current Assets and all programming liabilities shall be treated as
Current Liabilities (it being understood that programming assets shall be
amortized on a basis consistent with the method of amortization followed in the
Retained Business Financial Statements), (iii) one-third of any cash held by O&W
Corporation, Country Music Television Inc. and Outdoor Entertainment, Inc.
immediately prior to the Time of Distribution shall not be treated as a Current
Asset (it being understood that 100% of such cash will be a Retained Asset),
(iv) any Unspent Amount (as defined in Section 5.01(vii) of the Merger
Agreement) shall be treated as Current Liabilities, (v) any NASCAR Expenditures
(as defined in Section 5.01(vii)(B) of the Merger Agreement) shall be treated as
Current Assets, and (vi) purchase accounting adjustments shall not be made.
Notwithstanding the foregoing it is understood that cash was not included in the
calculation of the WC Amount. It is understood and agreed to by the parties
hereto that in the event that after the Effective Time any New Gaylord Company
receives checks, cash or other proceeds related to any assets on the Closing
Balance Sheet, then such New Gaylord Company shall promptly pay or deliver such
checks, cash or proceeds to the Company. It is further understood and agreed to
by the parties hereto that in the event that after the Effective Time any
Retained Company receives checks, cash or other proceeds related to any assets
of the Entertainment Business, then such Retained Company shall promptly pay or
deliver such checks, cash or other proceeds to New Gaylord. It is further
understood and agreed to by the parties hereto that in the event that prior to
the Effective Time checks were written by any of the Retained Companies that
were not presented for payment prior to the Effective Time, then either such
checks will be honored by the New Gaylord Companies or at the Effective Time the
Retained Companies will have sufficient cash to cover such checks. The scope of
the disputes to be resolved by the Accounting Firm is limited to whether the
Closing Statement was prepared in compliance with the requirements of this
Section 3.05, and the Accounting Firm is not to make any other determination.
(d) During the period of time from and after the delivery of the Closing
Statement to New Gaylord through the date the Closing Statement becomes final
and binding on the
18
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parties, Parent shall cause the Retained Companies to afford to New Gaylord and
any accountants, counsel or financial advisors retained by New Gaylord in
connection with the adjustment contemplated by this Section 3.05 reasonable
access during normal business hours to the Retained Companies' books and records
to the extent relevant to the adjustment contemplated by this Section 3.05.
SECTION 3.06. Successors. None of the New Gaylord Indemnitors shall
consolidate with or merge with or into, or sell, convey, transfer or lease, in
one transaction or a series of transactions, all or substantially all of its
assets to, any person, unless the resulting, surviving or transferee person (the
"Successor Company") shall expressly assume, by an instrument in form and
substance reasonably satisfactory to Parent, all the obligations of such New
Gaylord Indemnitor under this Agreement. The Successor Company shall be the
successor to such New Gaylord Indemnitor and shall succeed to, and be
substituted for, such New Gaylord Indemnitor under this Agreement, but, in the
:case of a sale, conveyance, transfer or lease, such New Gaylord Indemnitor
shall not be released from its obligations hereunder.
SECTION 3.07. Third Party Rights. In the event that after the Effective
Time any of the New Gaylord Companies holds any right to indemnification or any
other contractual or other right (collectively, a "Recourse Right") with respect
to any Retained Liability or any Assumed Liability for which any of the Retained
Companies are held responsible (including, without limitation, rights under the
Distribution Agreement dated as of October 30, l991 between the Company and The
Oklahoma Publishing Company relating to liabilities arising out of or related to
sites listed on the National Priorities List under the Comprehensive
Environmental Response, Compensation, and Liability Act, including the
Hardage/Criner site, the Mosley Road Site and the Double Eagle Refining site),
then (i) to the extent possible such Recourse Right shall be deemed to be held
as a shared right of the applicable New Gaylord Companies and the applicable
Retained Companies to the extent necessary to protect the Retained Companies
against such Retained Liability, and (ii) to the extent not so possible, New
Gaylord shall, or shall cause a New Gaylord Company to, assert or otherwise make
available to the Retained Companies the full benefit of such Recourse Right by
making a claim on behalf of the Retained Companies or taking other steps
reasonably requested by the Retained Companies.
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SECTION 3.08. Joint Defense and Confidentiality Agreement. Prior to the
Effective Time, Parent and New Gaylord shall enter into the Joint Defense and
Confidentiality Agreement substantially in the form attached hereto as Annex A.
ARTICLE IV
MISCELLANEOUS AND GENERAL
SECTION 4.01. Effectiveness; Modification or Amendment. The parties
hereto agree that this Agreement will become effective at the Effective Time.
The parties hereto may modify or amend this Agreement only by written
agreement executed and delivered by duly authorized officers of the respective
parties.
SECTION 4.02. Waiver; Remedies. No delay on the part of any party hereto
in exercising any right, power or privilege hereunder will operate as a waiver
thereof, nor will any waiver on the part of any party hereto of any right, power
or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder, nor will any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder. No waiver will be
effective hereunder unless it is in writing. Unless otherwise provided, the
rights and remedies herein provided are cumulative and are not exclusive of any
rights or remedies which the parties may otherwise have at law or in equity.
SECTION 4.03. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
SECTION 4.04. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts-of
laws thereof.
20
17
SECTION 4.05. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, telecopied (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to Parent, to
Westinghouse Electric Corporation
11 Stanwix Street
Pittsburgh, PA 15222-1384
Telecopy No.: (412) 642-5224
Attention: Louis J. Briskman, Esq.
with a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
Telecopy No.: (212) 474-3700
Attention: Peter S. Wilson, Esq.;
(b) if to the Company, to
G Corp.
11 Stanwix Street
Pittsburgh, PA 15222
Telecopy No.: (412) 642-5224
Attention: Louis J. Briskman, Esq.
with a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
Telecopy No.: (212) 474-3700
Attention: Peter S. Wilson, Esq.;
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c) if to New Gaylord, to
New Gaylord Entertainment Company
One Gaylord Drive
Nashville, TN 37214
Telecopy No.: (615) 316-6060
Attention: Frank M. Wentworth, Esq.
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
(Delaware)
One Rodney Square
Wilmington, DE 19801
Telecopy No.: (302) 651-3001
Attention: Richard L. Easton, Esq.
SECTION 4.06. Entire Agreement. The Transaction Agreements (including the
documents and instruments referred to therein, the Annexes thereto, the Parent
Disclosure Schedule and the Company Disclosure Schedule) and the Confidentiality
Agreement constitute the entire agreement, and supersede all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof and thereof.
SECTION 4.07. Certain Obligations. Whenever this Agreement requires any of
the subsidiaries of any party to take any action, this Agreement will be deemed
to include an undertaking on the part of such party to cause such subsidiary to
take such action; provided, however, that for this purpose New Gaylord Companies
shall not be considered to be subsidiaries of the Company.
SECTION 4.08. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties. Any assignment in violation of the
preceding sentence shall be void. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 4.09. Captions. The Article, Section and paragraph captions herein
are for convenience of reference
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only, do not constitute part of this Agreement and shall not be deemed to limit
or otherwise affect any of the provisions hereof.
SECTION 4.10. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other provision hereof or
the application of such provision to any other persons or circumstances. In the
event that the terms and conditions of this Agreement are materially altered as
a result of this Section the parties shall negotiate in good faith to agree upon
a suitable and equitable substitute provision to effect the original intent of
the parties.
SECTION 4.11. No Third Party Beneficiaries. Nothing contained in this
Agreement is intended to confer upon any person or entity other than the parties
hereto and their respective successors and permitted assigns, any benefit, right
or remedies under or by reason of this Agreement, except that the provisions of
Article II hereof shall inure to the benefit of Indemnitees.
SECTION 4.12 Enforcement. Notwithstanding any other provision of this
Agreement to the contrary, the parties agree that irreparable damage would occur
and the remedy of indemnification pursuant to Section 2.01 or 2.02, as the case
may be, and other remedies at law will by inadequate in the event that any of
the provisions of this Agreement, including but not limited to Section 3.04,
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of the Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto on the date first hereinabove
written.
WESTINGHOUSE ELECTRIC CORPORATION,
BY: /s/ Frederic G. Reynolds
---------------------------------
Name: Frederic G. Reynolds
Title: Executive Vice
President and Chief
Financial Officer
GAYLORD ENTERTAINMENT COMPANY,
By: /s/ Terry E. London
---------------------------------
Name: Terry E. London
Title: President and Chief
Executive Officer
NEW GAYLORD ENTERTAINMENT COMPANY,
By: /s/ Carl Kornmeyer
---------------------------------
Name: Carl Kornmeyer
Tltle: Vice President and
President - Communications
Group
IDEA ENTERTAINMENT INC.
By: /s/ F.M. Wentworth, Jr.
---------------------------------
Name: F.M. Wentworth, Jr.
Title: Secretary
CNR, INC.
By: /s/ E.K. Gaylord
---------------------------------
Name: E.K. Gaylord
Title: President
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GAYLORD BROADCASTING COMPANY, L.P.
by Gaylord Communications,
Inc., its general partner,
By: /s/ Carl Kornmeyer
---------------------------------
Name: Carl Kornmeyer
Title: Vice President
OPRYLAND ATTRACTIONS, INC.
By: /s/ Terry E. London
---------------------------------
Name: Terry E. London
Title: Chief Financial Officer
and Treasurer
OLH, L.P.
by Opryland Hospitality, Inc.,
its general partner,
By: /s/ Terry E. London
---------------------------------
Name: Terry E. London
Title: Chief Financial Officer
and Treasurer
COUNTRY MUSIC TELEVISION
INTERNATIONAL INC.
By: /s/ Carl Kornmeyer
---------------------------------
Name: Carl Kornmeyer
Title: President and Chief
Executive Officer
REAL ENTERTAINMENT VENTURES, INC.
By: /s/ Carl Kornmeyer
---------------------------------
Name: Carl Kornmeyer
Title: President
25
SCHEDULE A TO THE
POST-CLOSING COVENANTS AGREEMENT
IDEA ENTERTAINMENT, INC.
CNR, INC.
GAYLORD BROADCASTING COMPANY, L. P.
OPRYLAND ATTRACTIONS, INC.
OLH, L. P.
COUNTRY MUSIC TELEVISION INTERNATIONAL, INC.
REAL ENTERTAINMENT VENTURES, INC.
26
ANNEX A
JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT ("JD
Agreement") dated as of September 30, 1997, between
WESTINGHOUSE ELECTRIC CORPORATION, a Pennsylvania
corporation ("Parent"), and NEW GAYLORD ENTERTAINMENT
COMPANY, a Delaware Corporation ("New Gaylord").
1. In view of the execution of the Agreement and Plan of Merger dated as of
February 9, 1997 (the "Merger Agreement"), among Parent, G Acquisition Corp., a
Delaware corporation and wholly owned subsidiary of Parent ("Sub"), and Gaylord
Entertainment Company, a Delaware corporation ("the Company"), and the
Post-Closing Covenants Agreement dated as of September 30, 1997 (the
"Post-Closing Covenants Agreement") among Parent, the Company, New Gaylord and
the other New Gaylord Indemnitors (as defined therein), Parent and New Gaylord
have concluded that they have a common interest in preparing for joint defense
against claims that may be asserted at or after the date of the Merger Agreement
against the Retained Companies or the New Gaylord Companies, or their respective
affiliates, particularly with respect to the matters which are the subject of
indemnification pursuant to the Post-Closing Covenants Agreement. Capitalized
terms used in this Agreement and not otherwise defined herein shall have the
meanings assigned thereto in the Merger Agreement.
2. Accordingly, Parent and New Gaylord have further concluded that it is in
their common and individual interests to cooperate with each other by sharing
information in anticipation of joint defense against the aforementioned claims.
Parent and New Gaylord intend this JD Agreement to enable them, to the fullest
extent permitted by law, to share confidential or privileged information without
waiving any privileges, doctrines or rules of protection against disclosure that
might attach thereto, including but not limited to the attorney-client
privilege, the self-evaluating privilege, the joint defense privilege, the party
communication privilege and the attorney work product doctrine. This document
contains all terms and conditions of Parent's and New Gaylord's understanding
concerning the sharing of confidential or privileged information as contemplated
by this JD Agreement.
3. Although neither Parent or New Gaylord shall be under an obligation to
share any confidential or privileged information pursuant to paragraph 2 above,
from time to time either parent or New Gaylord in its sole discretion may choose
27
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to share with the other materials concerning certain issues about which they
have common interests in preparing for defense, and to exchange factual and/or
legal information and/or theories, mental impressions, memoranda, witness
statements, interview reports and other documents, information and/or materials,
including the information and the confidences of Parent and New Gaylord
contained therein, relevant to those common interests (collectively, "Joint
Privilege Materials"). Such exchange or disclosure shall be conducted in
reliance upon the following concepts:
(a) Joint Privilege Materials transmitted among Parent, New Gaylord or
their counsel may contain confidential and privileged communications,
whether or not subject to the attorney-client privilege, the self-
evaluating privilege, the joint defense privilege or the party
communication privilege;
(b) Joint Privilege Materials transmitted among Parent, New Gaylord or
their counsel may contain attorney work product;
(c) Joint Privilege Materials transmitted among Parent, New Gaylord or
their counsel may contain materials protected by other applicable
privileges and rules of confidentiality; and
(d) In accordance with applicable legal standards, any exchanges
made will be of information related only to issues as to which Parent and
New Gaylord believe they share common interests in preparing for defense.
4. It is the intention and understanding of Parent and New Gaylord that
exchanges of Joint Privilege Materials otherwise protected against disclosure by
privilege, doctrine or rule of confidentiality (i) will not waive any applicable
privilege, doctrine or rule of confidentiality from disclosure, (ii) will not
diminish the confidentiality of such materials and (iii) will not be asserted as
a waiver of any such privilege, doctrine or rule by either party receiving Joint
Privilege Materials.
5. Disclosure of Joint Privilege Materials to any person or entity, other
than attorneys representing Parent and New Gaylord, and consultants acting as
agents of such attorneys for purposes of reviewing any Joint Privilege Materials
(it being understood that such agents are subject to the confidentiality
provisions of this JD Agreement), or without the prior written consent of the
nondisclosing party through its respective counsel, is expressly prohibited.
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3
6. Each of Parent and New Gaylord shall give prompt notice to the other of
any attempt, by letter, notice, subpoena or other document or direction, to
compel disclosure of Joint Privilege Materials. In addition, each of Parent and
New Gaylord shall afford the other reasonable opportunity to assert any right or
privilege it may have to protect against disclosure of Joint Privilege Materials
sought by any entity.
7. Each of Parent and New Gaylord may withdraw from this JD Agreement upon
thirty (30) days written notice to the other's counsel. Any such withdrawal from
this JD Agreement shall be prospective in effect, and any Joint Privilege
Materials made available by either Parent or New Gaylord prior to such
withdrawal shall continue to be governed by the terms of this JD Agreement. Upon
withdrawal from this JD Agreement, each of Parent and New Gaylord shall return
all copies of all written and recorded Joint Privilege Materials to the other
within thirty (30) days of the date of its written notice of withdrawal, or
shall destroy all Joint Privilege Materials and certify to the other that such
destruction has taken place in accordance with applicable security requirements.
8. By entering into this JD Agreement, each of Parent and New Gaylord (i)
affirms its commitment to treat all information acquired in connection with this
JD Agreement as confidential and intended solely for purposes of advancing the
common interests in preparing the defense; and (ii) acknowledges the broadest
application allowed by law in the jurisdiction in which such privileges are
asserted of the attorney-client privilege, the self-evaluating privilege, the
joint defense privilege, the party communication privilege and the attorney work
product doctrine to such information.
9. The execution of this JD Agreement is not, nor shall it be construed as,
an admission of any fact or liability by either Parent or New Gaylord.
10. The execution of this JD Agreement shall not preclude the execution of
further agreements concerning joint defense against, and the sharing of
confidential information relating to, particular claims or the threat of
particular claims against either Parent or New Gaylord.
11. Notwithstanding anything contained in this JD Agreement to the
contrary, Parent and New Gaylord may use and disclose Joint Privilege Materials
to the extent such use or disclosure is necessary to assert its right to
indemnification by, or to contest its obligation to indemnify, the other
pursuant to the Post-Closing Covenants Agreement, or as
29
4
required by law, rule, regulation or final order of a court of competent
jurisdiction.
12. This JD Agreement shall not limit Parent's or New Gaylord's right to
use and/or disclose its own privileged or protected information and materials as
it sees fit, including but not limited to intentionally waiving any applicable
privileges or protections it has in such materials, regardless of whether Parent
or New Gaylord, as applicable, shall have previously shared such information or
materials with the other as Joint Privileged Materials under this JD Agreement.
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5
13. All notices hereunder shall be given in the manner set forth in the
Merger Agreement. Notices to a party's counsel hereunder shall be to the counsel
set forth in Section 10.02 of the Merger Agreement.
Executed this 30th day of September, 1997 by the following:
WESTINGHOUSE ELECTRIC
CORPORATION,
by /s/ Frederic G. Reynolds
--------------------------------
Name: Frederic G. Reynolds
Title: Executive Vice
President and Chief
Financial Officer
NEW GAYLORD ENTERTAINMENT
COMPANY,
by /s/ Carl Kornmeyer
--------------------------------
Name: Carl Kornmeyer
Title: Vice President and President -
Communications Group