Exhibit
10.6


 


SPINCO
ASSIGNMENT AND ASSUMPTION AGREEMENT (TREE.COM)


 


AGREEMENT (this “Agreement”), dated as of August 20,
2008, among InterActiveCorp, a Delaware corporation (“IAC”), Tree.com, Inc.,
a Delaware corporation (the “Company”), Liberty Media Corporation, a
Delaware corporation (“Liberty”), and Liberty USA Holdings, LLC, a
Delaware limited liability company (“Liberty Sub” and, together with
Liberty, the “Liberty Parties”).


 


RECITALS


 


WHEREAS, IAC, Barry Diller, Liberty and the other
parties named therein entered into that certain Spinco Agreement, dated as of May 13,
2008 (the “Spinco Agreement”);


 


WHEREAS, IAC, 
Liberty Sub and Liberty entered into that certain Affiliate and
Assignment Agreement, dated as of August 20, 2008, pursuant to which Liberty
Sub assumed all of the rights, benefits, liabilities and obligations of each
Liberty Party (as defined in the Spinco Agreement) signatory to the Spinco
Agreement under the Spinco Agreement other than Liberty;


 


WHEREAS, the Spinco Agreement provides that, in
connection with each Single-Tier Spinoff of a Spinco consummated prior to the
End Date, IAC will cause such Spinco to enter into this Agreement with the
Liberty Parties;


 


WHEREAS, IAC has determined to proceed with the
Single-Tier Spinoff of the Company and, in accordance with the terms of the
Spinco Agreement, the parties are entering into this Agreement; and


 


WHEREAS, capitalized terms not otherwise defined
herein will have the meanings specified in the Spinco Agreement.


 


NOW, THEREFORE, for good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged), the parties
hereto agree as follows:


 


1.                                       Assignment and Assumption. 
Effective as of the Spinoff Date with respect to the Company, (i) IAC
hereby transfers, assigns and conveys to the Company those rights, benefits,
liabilities and obligations applicable to the Company in its capacity as a
Spinco for purposes of the Spinco Agreement (but, for the avoidance of doubt,
not with respect to any other Spinco) that are specified in or arise under
Sections 3 (other than Section 3(e)), 5 (other than IAC’s obligations to
make the determinations and deliver the consents provided for in Section 5(d) of
the Spinco Agreement with respect to certain transactions
occurring within two years following a Tax-Free Spinoff, and its
obligation to prepare and update the Initial IAC List applicable to the
Company), 6, 7, 9(c) and, to the extent of the application of the
provisions of Sections 1 and 10 to the aforementioned Sections, Sections 1
and 10 of the Spinco Agreement (collectively, the “Applicable Spinco
Provisions”, and such rights and benefits, collectively, the “Assigned
Rights”, and such liabilities and obligations, collectively, the “Assigned
Obligations”), (ii) the Company accepts and assumes the Assigned
Rights and Assigned Obligations and agrees to be bound by the Assigned
Obligations and to perform the Assigned Obligations in accordance 


 





















 


therewith as if the Company had executed and delivered
the Spinco Agreement, and (iii) each Liberty Party acknowledges that the
Company is a Spinco for purposes of the Spinco Agreement and, as such, upon the
Single-Tier Spinoff of the Company is entitled to all of the Assigned Rights as
if it had executed and delivered the Spinco Agreement, and each Liberty Party
agrees to perform its obligations with respect to the Company (in its capacity
as a Spinco) under the Applicable Spinco Provisions in accordance therewith.


 


2.                                       Releases.  Effective as
of the Spinoff Date with respect to the Company, (a) each Liberty Party
hereby releases IAC from any obligations and liabilities arising after such
Spinoff Date relating to (i) IAC’s obligations pursuant to the Spinco
Agreement to cause the Company to enter into this Agreement and (ii) the
Company’s performance after such Spinoff Date of the Assigned Rights and
Assigned Obligations, and (b) IAC hereby releases each Liberty Party from
any obligations and liabilities with respect to the performance after the
Spinoff Date of its obligations with respect to the Company under the
Applicable Spinoff Provisions as they relate to the Company.  The foregoing releases will not affect in any
way any liability or obligation of any party to the Spinco Agreement for any
breach of the Spinco Agreement occurring on or prior to the Spinoff  Date with respect to the Company or with
respect to any rights or obligations of, or with respect to, any other Spinco.


 


3.                                       Third Party Beneficiaries; Assignment


 


(a)                                  Nothing in this Agreement, whether
express or implied, shall be construed to give any Person, other than the
parties hereto, any legal or equitable right, remedy or claim under or in
respect of this Agreement.


 


(b)                                 Except as provided in this Section 3,
in any Assignment and Assumption Agreement (other than this Agreement) or in Sections
5(d)(i)(6), 5(d)(i)(7) or 9(c) of the Spinco Agreement, neither this
Agreement nor any rights or obligations under this Agreement shall be assigned,
in whole or in part, by the Company, IAC or the Liberty Parties without the
prior written consent of the other.  Any
such consent by the Company shall be authorized by a majority of the Qualified
Directors of the Company and any such consent by IAC shall be authorized by a
majority of the Board of Directors of IAC (excluding for this purpose any
Liberty Director as defined in the Governance Agreement) (the execution and
delivery of any such consent by the Company and IAC shall conclusively evidence
the authorization of such consent required pursuant to this sentence).  Subject to the foregoing, the provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.


 





















 


4.                                       General Provision


 


(a)                                  Notices. 
All notices, requests and other communications to any party hereunder
shall be in writing (including telecopy) and shall be given, if to any Liberty
Party, to:


 


	
   

  	
  Liberty Media
  Corporation

  
	
   

  	
  12300 Liberty Boulevard

  
	
   

  	
  Englewood, Colorado
  80112

  
	
   

  	
  Attention:

  	
  General Counsel

  
	
   

  	
  Facsimile:

  	
  (720) 875-5382

  
	
   

  	
   

  
	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Baker Botts L.L.P.

  
	
   

  	
  30 Rockefeller Plaza

  
	
   

  	
  44th Floor

  
	
   

  	
  New York, New York
  10112

  
	
   

  	
  Attention:

  	
  Frederick H. McGrath

  
	
   

  	
  Facsimile:

  	
  (212) 408-2501

  
	
   

  	
   

  
	
  if to the Company, to:

  
	
   

  	
   

  
	
   

  	
  Tree.com, Inc.

  
	
   

  	
  11115 Rushmore
  Drive

  
	
   

  	
  Charlotte, NC 28277

  
	
   

  	
  Attention: General
  Counsel

  
	
   

  	
  Fax:
  (949) 255-5139

  



 


and if to IAC, as specified in the Spinco Agreement;
or such address or facsimile number as such party may hereafter specify for the
purpose by notice to the other parties hereto. 
Each such notice, request or other communication shall be effective when
delivered personally, telegraphed, or telecopied, or, if mailed, five business
days after the date of the mailing.


 


(b)                                 Amendments; Waivers. 
Any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of an
amendment, by the party whose rights or obligations hereunder are affected by
such amendment, or in the case of a waiver, by the party or parties against
whom the waiver is to be effective.  Any
amendment or waiver by the Company shall be authorized by a majority of the
Qualified Directors of the Company and any amendment or waiver by IAC shall be
authorized by a majority of the Board of Directors of IAC (excluding for this
purpose any Liberty Director as defined in the Governance Agreement) (the
execution and delivery of any such amendment or waiver by the Company and IAC
shall conclusively evidence the authorization of such amendment or waiver
required pursuant to this sentence).


 


No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any 


 

















 


other or further exercise
thereof or the exercise of any other right, power or privilege.  The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.


 


(c)                                  Governing Law; Consent To Jurisdiction. 
This Agreement shall be construed in accordance with and governed by the
internal laws of the State of Delaware, without giving effect to the principles
of conflicts of laws.  Each of the
parties hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of Delaware, for any action,
proceeding or investigation in any court or before any governmental authority (“Litigation”)
arising out of or relating to this Agreement and the transactions contemplated
hereby and further agrees that service of any process, summons, notice or document
by U.S. mail to its respective address set forth in this Agreement shall be
effective service of process for any Litigation brought against it in any such
court.  Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any Litigation arising out of this Agreement or the transactions contemplated
hereby in the courts of the State of Delaware, and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such Litigation brought in any such court has been brought in an
inconvenient forum.  Each of the parties
irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any and all rights to trial by jury in connection with any
Litigation arising out of or relating to this Agreement or the transactions
contemplated hereby.


 


(d)                                 Specific Performance; Other Limitations. 
Each of the parties hereto acknowledges and agrees that the parties’
respective remedies at law for a  breach
or threatened breach of any of the provisions of this Agreement (including the
Applicable Spinco Provisions) would be inadequate and, in recognition of that
fact, agrees that, in the event of a breach or threatened breach by any party
of the provisions of this Agreement, in addition to any remedies at law, the
parties hereto without posting any bond, shall be entitled to obtain equitable
relief in the form of specific performance, a temporary restraining order, a
temporary or permanent injunction or any other equitable remedy which may then
be available.  No breach or threatened
breach on the part of any party hereto shall relieve any other party of any of
its obligations under this Agreement.


 


(e)                                  Severability. 
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, provided that the parties hereto shall
negotiate in good faith to attempt to place the parties in the same position as
they would have been in had such provision not been held to be invalid, void or
unenforceable.


 


(f)                                    Entire Agreement. 
This Agreement and the Spinco Agreement, together with the agreements
and instruments referenced herein and therein, embodies the complete agreement
and understanding among the parties hereto with respect to the subject matter
hereof and supersedes any prior understandings or agreements by or among the
parties, written or oral, with respect to the subject matter hereof.


 





















 


(g)                                 Interpretation. 
The words “include,” “includes” and “including” shall be deemed to be
followed by the phrase “without limitation.” 
The words “hereof,” “herein” and “hereunder” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of such agreement or instrument.


 


(h)                                 Headings.  The headings
contained in this Agreement are for convenience only and shall not be
interpreted to limit or otherwise affect the provisions of this Agreement.


 


5.                                       Further Assurances. 
Each party hereto agrees to take such further actions as may be
reasonably necessary to effect the transactions contemplated by this Agreement.


 


6.                                       Counterparts. 
This Agreement may be executed in any number of counterparts with the
same effect as if all parties hereto had signed the same document, and all of
which counterparts together shall constitute one and the same fully executed
agreement.


 





















 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.


 


	
  Liberty Media Corporation,

  	
   

  	
  IAC/InterActiveCorp, a
  Delaware corporation

  
	
  a Delaware corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Craig Troyer

  	
   

  	
  /s/ Joanne Hawkins

  
	
  Name:

  	
  Craig Troyer

  	
   

  	
  Name:

  	
  Joanne Hawkins

  
	
  Title:

  	
  Vice President

  	
   

  	
  Title:

  	
  Senior Vice President

  



 


	
  Liberty USA Holdings,
  LLC

  	
   

  	
  Tree.com, Inc., a
  Delaware corporation

  
	
  a Delaware limited
  liability company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: Liberty Programming
  Company LLC, its

  	
   

  	
  /s/ Tanya Stanich

  
	
  sole member and manager

  	
   

  	
  Name:

  	
  Tanya Stanich

  
	
   

  	
   

  	
  Title:

  	
  Vice President and
  Assistant Secretary

  
	
  By: LMC Capital LLC,
  its sole member and

  	
   

  	
   

  
	
  manager

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Craig Troyer

  	
   

  	
   

  
	
  Name:

  	
  Craig Troyer

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
   

  



 


[Signature Page to
Spinco Assignment/Assumption Agreement (Tree.com, Inc.)]