EXHIBIT 10.2
TAX SHARING AGREEMENT
This Tax Sharing Agreement (this "Agreement") is entered into as of August
2, 2005, by and between Xxxx Television, Inc., a Georgia corporation ("Xxxx"),
and Triple Crown Media, Inc., a Delaware corporation ("TCM"). Capitalized terms
used in this Agreement and not otherwise defined in Article I or otherwise
herein shall have the meanings ascribed to such terms in the Separation and
Distribution Agreement, dated as of August 2, 2005, by and between Xxxx and TCM
(the "Separation and Distribution Agreement").
RECITALS
X. Xxxx is the common parent of an "affiliated group" of corporations
within the meaning of Section 1504(a) of the Internal Revenue Code of 1986, as
amended (the "Code"), that has filed consolidated federal income tax returns.
B. TCM is a wholly owned subsidiary of Xxxx.
C. Pursuant to the Separation and Distribution Agreement, among other
things, (i) Xxxx agreed to convey, assign and transfer to TCM the sole
membership interest in Xxxx Publishing and (ii) TCM agreed to distribute $40
million to Xxxx on the Separation Date (collectively, the "Separation").
D. Immediately after the Separation, Xxxx shall make a pro rata
distribution of all of the TCM Common Stock to the holders of the Xxxx Common
Stock (the "Distribution" and, together with the Separation, the
"Reorganization").
X. Xxxx and TCM intend that the Reorganization will qualify as a divisive
reorganization described in Sections 368(a)(1)(D) and that the Distribution will
qualify for nonrecognition treatment under Section 355 of the Code.
X. Xxxx and TCM desire to set forth their rights and obligations with
respect to Taxes (as defined herein) due for periods before and after the
Distribution Date.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
Definitions
1.01 "Affiliate" shall mean any Person that directly or indirectly through
one or more intermediaries Controls, is Controlled by, or is under common
Control with a specified Person.
1.02 "Agreement" shall mean this Tax Sharing Agreement between Xxxx and
TCM, as the same may be amended from time to time.
1.03 "Applicable Federal Rate" shall have the meaning set forth in Section
1274(d) of the Code, compounded quarterly.
1.04 "Code" shall have the meaning set forth in the Recitals.
1.05 "Control" or "Controlled" shall mean, with respect to any Person, the
presence of one of the following: (i) the legal, beneficial or equitable
ownership, directly or indirectly, of more than 50% (by vote or value) of the
capital or voting stock (or other ownership or voting interest, if not a
corporation) of such Person or (ii) the ability, directly or indirectly, to
direct the voting of a majority of the directors of such
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Person's board of directors or, if the Person does not have a board of
directors, a majority of the positions on any similar body, whether through
appointment, voting agreement or otherwise.
1.06 "Controlling Party" shall have the meaning set forth in Section 5.01.
1.07 "Distribution" shall have the meaning set forth in the Recitals.
1.08 "Final Determination" shall mean with respect to any issue (a) a
decision, judgment, decree or other order by any court of competent
jurisdiction, which decision, judgment, decree or other order has become final
and not subject to further appeal, (b) a closing agreement whether or not
entered into under Section 7121 of the Code or any other binding settlement
agreement (whether or not with the Internal Revenue Service) entered into in
connection with or in contemplation of an administrative or judicial proceeding,
or (c) the completion of the highest level of administrative proceedings if a
judicial contest is not or is no longer possible.
1.09 "Xxxx" shall have the meaning set forth in the preamble to this
Agreement.
1.10 "Xxxx Group" shall mean Xxxx and all Subsidiaries of Xxxx at any time
following the Separation but shall not include any member of the TCM Group.
1.11 "Xxxx Publishing" shall mean Xxxx Publishing LLC, a Delaware limited
liability company, which is a member of the TCM Group.
1.12 "Xxxx Tainting Act" shall mean (a) any breach of any written
representation relating to the qualification of the Reorganization as a
reorganization described in Section 368(a)(1)(D) of the Code, relating to the
qualification of the Distribution as a transaction described in Section 355 of
the Code, or relating to the treatment of the stock of TCM as "qualified
property" within the meaning of Sections 355(c)(2) and 361(c)(2) of the Code,
which representation is made by Xxxx in that certain officer's certificate of
even date herewith that was provided to King & Spalding LLP in connection with
the tax opinion of King & Spalding LLP described in Section 3.3(g) of the
Separation and Distribution Agreement, or (b) any action, failure to act or
omission by or involving any Person (other than TCM or any other Person that is
an Affiliate of TCM immediately before or immediately after such action, failure
to act, or omission) after the Distribution Date, if such breach, action,
failure to act, or omission contributes to a Final Determination that (i) the
Reorganization failed to qualify as a reorganization under Section 368(a)(1)(D)
of the Code, (ii) the Distribution failed to qualify as a transaction described
in Section 355 of the Code or (iii) the stock of TCM distributed to Xxxx'x
shareholders failed to qualify as "qualified property" within the meaning of
Sections 355(c)(2) and 361(c)(2) of the Code, including by reason of the
application of Section 355(e) of the Code.
1.13 "Indemnitor" shall have the meaning set forth in Section 5.02.
1.14 "Person" shall mean any individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated organization,
government or department or agency of a government.
1.15 "Post-Distribution Period" shall mean any taxable year or other
taxable period beginning on or after the Distribution Date and, in the case of
any taxable year or other taxable period that begins before and ends after the
Distribution Date, that part of the taxable year or other taxable period that
begins after the close of the Distribution Date.
1.16 "Pre-Distribution Period" shall mean any taxable year or other
taxable period that ends on or before the Distribution Date and, in the case of
any taxable year or other taxable period that begins before and ends after the
Distribution Date, that part of the taxable year or other taxable period through
the close of the Distribution Date.
1.17 "Reorganization" shall have the meaning set forth in the Recitals.
1.18 "Restructuring Taxes" shall mean any Taxes resulting from or caused
by the Reorganization including, but not limited to, any income Taxes imposed
pursuant to or as a result of Sections 311, 355(c)(2), 357(c), 361(b)(1)(B),
361(b)(3), 361(c)(2), or 455(b)(1) of the Code, Sections 1.1502-13
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or 1.1502-19 of the Treasury Regulations, or Section 5.02(5) of Revenue
Procedure 2004-23, 2004-22 I.R.B. 991 (or any corresponding or similar
provisions of state, local or non-U.S. income Tax law) and any sales or other
transfer Taxes or similar charges imposed with respect to or as a result of the
Reorganization.
1.19 "Separation" shall have the meaning set forth in the Recitals.
1.20 "Separation and Distribution Agreement" shall have the meaning set
forth in the preamble to this Agreement.
1.21 "Subsidiary" shall mean a corporation, limited liability company,
partnership, joint venture or other business entity if 50% or more of the
outstanding equity or voting power of such entity is owned directly or
indirectly by the corporation with respect to which such term is used.
1.22 "Tax" or "Taxes", whether used in the form of a noun or adjective,
shall mean all forms of taxation, whenever created or imposed, including, but
not limited to, taxes on or measured by income, franchise, gross receipts,
sales, use, excise, payroll, personal property (tangible or intangible), real
property, ad valorem, value-added, leasing, leasing use or other taxes, levies,
imposts, duties, charges or withholdings of any nature whether imposed by a
nation, locality, municipality, government, state, federation, or other
governmental body (a "Taxing Authority"). Whenever the term "tax" or "taxes" is
used (including, without limitation, in the context of any duty to reimburse
another party or indemnify for taxes or refunds or credits of taxes) it shall
include penalties, fines, additions to tax and interest thereon.
1.23 "Taxing Authority" shall have the meaning set forth in the foregoing
definition of the term "Tax."
1.24 "Tax Returns" shall mean all reports, returns, information
statements, questionnaires or other documents required to be filed or that may
be filed for any period with any Taxing Authority (whether domestic or foreign)
in connection with any Tax or Taxes (whether domestic or foreign).
1.25 "TCM" shall have the meaning set forth in the preamble to this
Agreement.
1.26 "TCM Business" shall mean the Newspaper Publishing Business, or the
Graylink Wireless Business, or both businesses.
1.27 "TCM Group" shall mean TCM and all entities that are Subsidiaries of
TCM at any time following the Separation, including without limitation Xxxx
Publishing, Graylink LLC, and Porta-Phone Paging Licensee Corp.
1.28 "TCM Tainting Act" shall mean (a) any breach of any written
representation relating to the qualification of the Reorganization as a
reorganization described in Section 368(a)(1)(D) of the Code, relating to the
qualification of the Distribution as a transaction described in Section 355 of
the Code, or relating to the treatment of the stock of TCM as "qualified
property" within the meaning of Sections 355(c)(2) and 361(c)(2) of the Code,
which representation is made by TCM in that certain officer's certificate of
even date herewith that was provided to King & Spalding LLP in connection with
the tax opinion of King & Spalding LLP described in Section 3.3(g) of the
Separation and Distribution Agreement, or (b) any action, failure to act or
omission by or involving any Person (other than Xxxx or any other Person that is
an Affiliate of Xxxx immediately before or immediately after such action,
failure to act, or omission) after the Distribution Date, if such breach,
action, failure to act, or omission contributes to a Final Determination that
(i) the Reorganization failed to qualify as a reorganization under Section
368(a)(1)(D) of the Code, (ii) the Distribution failed to qualify as a
transaction described in Section 355 of the Code or (iii) the stock of TCM
distributed to Xxxx'x shareholders failed to qualify as "qualified property"
within the meaning of Sections 355(c)(2) and 361(c)(2) of the Code, including by
reason of the application of Section 355(e) of the Code.
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ARTICLE II.
Tax Returns, Tax Payments and Tax Sharing Obligation
2.01 OBLIGATIONS TO FILE TAX RETURNS. Xxxx shall timely file or cause to
be filed all Tax Returns that are required to be filed after the Distribution
Date by or with respect to the TCM Group that (a) are filed on a consolidated,
combined or unitary basis, (b) include both one or more members of the Xxxx
Group and one or more members of the TCM Group, and (c) are for a taxable period
that includes the Pre-Distribution Period. Xxxx also shall timely file or cause
to be filed all other Tax Returns required to be filed by one or more members of
the TCM Group for any taxable period that includes the Pre-Distribution Period,
other than any such Tax Returns relating to sales, use, personal property
(tangible or intangible), real property, and ad valorem Taxes arising in the
Pre-Distribution Period and attributable to a member of the TCM Group or to the
assets, employees, or transactions of the TCM Business. TCM shall timely file or
cause to be filed all other Tax Returns that are required to be filed after the
Distribution Date by or with respect to the members of the TCM Group.
2.02 OBLIGATION TO REMIT TAXES. Xxxx and TCM shall each remit or cause to
be remitted to the applicable Taxing Authority any Taxes due in respect of any
Tax for which such party is required to file a Tax Return (or, in the case of a
Tax for which no Tax Return is required to be filed, which is otherwise payable
by such party or a member of such party's group (the Xxxx Group or the TCM
Group) to any Taxing Authority) and shall be entitled to reimbursement for such
payments only to the extent provided in Sections 2.03 and 2.04.
2.03 TAX SHARING OBLIGATIONS AND PRIOR AGREEMENTS.
(a) TCM shall be liable for and shall indemnify and hold the Xxxx Group
harmless against, on a net after Tax basis, (i) any liability for sales, use,
personal property (tangible or intangible), real property, and ad valorem Taxes
arising in the Pre-Distribution Period and attributable to a member of the TCM
Group or to the assets or transactions of the TCM Business, and (ii) any
liability for Taxes of any kind arising in the Post-Distribution Period and
attributable to a member of the TCM Group or to the assets, employees, or
transactions of the TCM Business.
(b) Except for Taxes specifically allocated to TCM under Section 2.03(a) or
Section 2.04(b), Xxxx shall be liable for and shall indemnify and hold the TCM
Group harmless against, on a net after Tax basis, any Tax liability of the Xxxx
Group or of the TCM Group.
(c) Except as set forth in this Agreement and in consideration of the
mutual indemnities and other obligations of this Agreement, any and all prior
Tax sharing or allocation agreements or practices between any member of the Xxxx
Group and any member of the TCM Group shall be terminated with respect to the
TCM Group as of the Distribution Date.
(d) TCM shall be entitled to any refund of or credit for Taxes for which
TCM is responsible under this Agreement, and Xxxx shall be entitled to any
refund of or credit for Taxes for which Xxxx is responsible under this
Agreement.
2.04 RESTRUCTURING TAXES; OTHER TAXES RELATING TO THE REORGANIZATION.
(a) RESTRUCTURING TAXES. Notwithstanding any other provision of this
Agreement to the contrary, but subject to Section 2.04(b) below, Xxxx shall pay,
and shall indemnify and hold harmless TCM and any member of the TCM Group from
and against, on a net after Tax basis, any Restructuring Taxes and any
reasonable expenses (including, but not limited to, attorney's fees) incurred in
defending any audit or examination with respect to Restructuring Taxes.
(b) INDEMNIFICATION FOR TCM TAINTING ACTS. TCM covenants that neither TCM
nor any member of the TCM Group shall commit or be party to or the subject of
any TCM Tainting Act. To the extent that any member of the Xxxx Group would not
have been liable for the following amounts but for a TCM Tainting Act, TCM shall
pay, and shall indemnify and hold harmless the Xxxx Group from and against, on a
net after Tax basis, any liability of any member of the Xxxx Group attributable
to Taxes
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imposed upon any member of the Xxxx Group or any other Person (together with any
reasonable expenses (including, but not limited to, attorney's fees) incurred in
defending against any such liability) resulting from a Final Determination that
(i) the Reorganization failed to qualify as a reorganization under Section
368(a)(1)(D) of the Code, (ii) the Distribution failed to qualify as a
transaction described in Section 355 of the Code or (iii) the stock of TCM
distributed to Xxxx'x shareholders failed to constitute "qualified property"
within the meaning of Sections 355(c)(2) and 361(c)(2) of the Code, including by
reason of the application of Section 355(e) of the Code.
(c) INDEMNIFICATION FOR XXXX TAINTING ACTS. Xxxx covenants that neither
Xxxx nor any member of the Xxxx Group shall commit or be party to or the subject
of any Xxxx Tainting Act. To the extent that any member of the TCM Group would
not have been liable for the following amounts but for a Xxxx Tainting Act, Xxxx
shall pay, and shall indemnify and hold harmless the TCM Group from and against,
on a net after Tax basis, any liability of any member of the Xxxx Group or the
TCM Group attributable to Taxes imposed upon any member of the Xxxx Group, any
member of the TCM Group, or any other Person (together with any reasonable
expenses (including, but not limited to, attorney's fees) incurred in defending
against any such liability) resulting from a Final Determination that (i) the
Reorganization failed to qualify as a reorganization under Section 368(a)(1)(D)
of the Code, (ii) the Distribution failed to qualify as a transaction described
in Section 355 of the Code or (iii) the stock of TCM distributed to Xxxx'x
shareholders failed to constitute "qualified property" within the meaning of
Sections 355(c)(2) and 361(c)(2) of the Code, including by reason of the
application of Section 355(e) of the Code.
2.05 PERIOD THAT INCLUDES THE DISTRIBUTION DATE.
(a) To the extent permitted by law or administrative practice, the taxable
year of each member of the TCM Group shall be treated as closing at the close of
the Distribution Date.
(b) If it is necessary for purposes of this Agreement to determine the Tax
liability of any member of the TCM Group for a taxable year or period that
begins on or before and ends after the Distribution Date and is not treated
under Section 2.05(a) as closing at the close of the Distribution Date, the
determination shall be made, in the case of Taxes that are based upon income or
receipts, by assuming that the relevant taxable period ended at the close of the
Distribution Date, except that any exemptions, allowances or deductions that are
calculated on an annual basis shall be apportioned on a time basis. In the case
of Taxes that are imposed on a periodic basis, are payable for a taxable period
that includes (but does not end on) the Distribution Date, and are not based
upon or related to income or receipts, the portion of such Tax that relates to
the Pre-Distribution Period shall be deemed to be the amount of such Tax for the
entire taxable period multiplied by a fraction the numerator of which is the
number of days in the taxable period ending on the Distribution Date and the
denominator of which is the number of days in the entire taxable period.
ARTICLE III.
Carrybacks
Without the consent of Xxxx, which shall not be withheld or delayed
unreasonably, no member of the TCM Group shall carry back any net operating loss
or other Tax attribute (unless required to carry back such loss or Tax attribute
by law) from a Post-Distribution Period to a Pre-Distribution Period. Provided
that Xxxx consents to the carryback or if the carryback is required by law, Xxxx
(or any other member of the Xxxx Group receiving such refund) shall promptly
remit to TCM any refunds it receives with respect to any such carryback. Any
refund of Taxes resulting from any such carryback by a member of the TCM Group
shall be payable to TCM. For purposes of this Article III, it shall be deemed
reasonable for Xxxx to withhold its consent to any carryback, or alternatively
to require reasonable monetary compensation for granting such consent, to the
extent that Xxxx determines in good faith that such carryback will cause (i) an
actual increase in the Taxes for which the Xxxx Group is responsible, or (ii) an
actual reduction in
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the amount of any refund of Taxes payable to the Xxxx Group or in the amount of
any Tax attribute of the Xxxx Group.
ARTICLE IV.
Payments
4.01 PAYMENTS. Payments due under this Agreement shall be made no later
than thirty (30) days after the receipt or crediting of a refund, the delivery
of notice of payment of a Tax for which the other party is responsible under
this Agreement, or the delivery of notice of a Final Determination which results
in such other party becoming obligated to make a payment hereunder to the other
party hereto. Payments due hereunder, but not made within such 30-day period,
shall be accompanied with interest at a rate equal to the Applicable Federal
Rate from the due date of such payment.
4.02 NOTICE. Xxxx and TCM shall give each other prompt written notice of
any payment that may be due to the provider of such notice under this Agreement.
ARTICLE V.
Tax Audits
5.01 GENERAL. Except as provided in Section 5.02, each of TCM and Xxxx
shall have sole responsibility for all audits or other proceedings ("Tax
Controversies") with respect to Tax Returns that it is required to file under
Section 2.01 (the "Controlling Party"). Except as provided in Section 5.02(c) or
Section 5.02(d), the Controlling Party shall have the sole right to contest the
audit or proceeding and to employ advisors of its choice.
5.02 INDEMNIFIED CLAIMS.
(a) Xxxx or TCM shall promptly notify the other in writing as soon as
practicable after receipt by such party of any written communication from a
relevant Taxing Authority that proposes adjustment to a Tax Return that may
result in liability of the other party (the "Indemnitor") under this Agreement
(a "Proposed Tax Adjustment"). If the Indemnitor is not also the Controlling
Party, the Controlling Party shall provide the Indemnitor with information about
the nature and amounts of the Proposed Tax Adjustments.
(b) The Indemnitor shall have 30 days after receipt of such notice from the
Controlling Party within which to object to the Proposed Tax Adjustment. If the
Indemnitor does not notify the Controlling Party within such 30 day period that
it objects to the Proposed Tax Adjustment, Section 5.02(c) and Section 5.02(d)
below shall not apply, and the Controlling Party shall have exclusive control
over all stages of the Tax Controversy, including full authority to determine
whether and in what manner to contest or compromise the Proposed Tax Adjustment.
(c) If the Indemnitor notifies the Controlling Party that it objects to a
Proposed Tax Adjustment, then the Controlling Party shall not thereafter consent
to the adjustment or compromise of such Proposed Tax Adjustment without the
consent of the Indemnitor, but shall cooperate with the Indemnitor to resolve
the Proposed Tax Adjustment on a reasonable basis acceptable to the Indemnitor.
Prior to the issuance of any notice raising a Proposed Tax Adjustment or similar
stage in the proceedings, however, the Controlling Party shall be responsible
for the conduct of the audit, including matters pertaining to such Proposed Tax
Adjustment. The Controlling Party shall notify the Indemnitor in advance of any
conferences, meetings, and proceedings pertaining to the audit and, at its own
expense, the Indemnitor shall have the right to attend all such proceedings with
any Taxing Authority, the subject matter of which is or includes such Proposed
Tax Adjustment.
(i) Upon the issuance of a notice of proposed adjustment or similar
stage in the proceedings, the Indemnitor shall assume the conduct of all
further proceedings, with counsel selected by it, at the Indemnitor's sole
expense, insofar as the proceedings relate to a Proposed Tax Adjustment,
and
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thereafter the Indemnitor and the Controlling Party shall jointly be
responsible for the conduct of proceedings to contest such Proposed Tax
Adjustment.
(ii) In the event that the Controlling Party receives a notice of
deficiency from the Internal Revenue Service, or a similar notice from any
other Taxing Authority, and such notice includes one or more Proposed Tax
Adjustments, then:
(A) upon receiving a written request from the Indemnitor, given no
later than a date reasonably necessary to permit preparation and timely
filing of a petition in the United States Tax Court for redetermination
of the deficiency relating to the Proposed Tax Adjustment, or a court of
similar jurisdiction with respect to a Proposed Tax Adjustment imposed
by any other Taxing Authority, the Controlling Party shall timely file
such petition (at the Indemnitor's sole expense); or
(B) If (1) the Indemnitor does not request the Controlling Party to
file a petition for redetermination of the deficiency pursuant to
subsection 5.02(c)(ii)(A) hereof, (2) the Indemnitor requests that the
Controlling Party file a claim for refund of Taxes relating to a
Proposed Tax Adjustment, and (3) the Indemnitor provides the Controlling
Party with sufficient funds to pay the deficiency relating to the
Proposed Tax Adjustment, then the Controlling Party (at the Indemnitor's
sole expense) shall file a claim for refund thereof and, if the claim is
denied, bring an action in a court of competent jurisdiction seeking
such refund.
(C) In the event that a judgment of the United States Tax Court or
other court of competent jurisdiction results in an adverse
determination with respect to the Proposed Tax Adjustment, then the
Indemnitor shall have the right to cause the Controlling Party to appeal
from such adverse determination at the Indemnitor's sole expense.
(D) The Indemnitor and its representatives, at the Indemnitor's
sole expense, shall be entitled to the extent permitted by law to
participate in (1) all conferences, meetings, or proceedings with any
Taxing Authority, the subject matter of which is a Proposed Tax
Adjustment, and (2) all appearances before any court, the subject matter
of which is a Proposed Tax Adjustment. The right to participate referred
to in this subsection 5.02(c)(ii)(D) hereof shall include matters such
as the submission and content of documentation, memoranda of fact and
law and briefs, the conduct of oral arguments or presentations, the
selection of witnesses, and the negotiation of stipulations of fact with
respect to a Proposed Tax Adjustment.
(d) If a notice of proposed adjustment raises both one or more issues that
would result in Taxes for which the Controlling Party is liable under this
Agreement in addition to one or more issues that constitute Proposed Tax
Adjustments for which any other party is liable under this Agreement, then the
Controlling Party and the Indemnitor shall cooperate with each other to allow
each party to conduct the Tax Controversy with respect to those issues that
would result in Taxes for which such party is liable under this Agreement. Each
party shall bear the expense of conducting the Tax Controversy with respect to
the issues that would result in Taxes for which such party is liable under this
Agreement.
ARTICLE VI.
Cooperation
Xxxx and TCM shall cooperate with each other in the filing of any Tax
Returns and the conduct of any audit or other proceeding and each shall execute
and deliver such powers of attorney and make available such other documents as
are reasonably necessary to carry out the intent of this Agreement. Each party
agrees to notify the other party in writing of any audit adjustments which do
not result in Tax liability but can be reasonably expected to affect Tax Returns
of the other party, or any of its Subsidiaries, for a Post-Distribution Period.
Unless and until there has been a Final Determination to the contrary, each
party agrees to treat the Reorganization as a reorganization qualifying under
Section 368(a)(1)(D) of the Code and the Distribution as a transaction
qualifying under Section 355 of the Code.
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ARTICLE VII.
Retention of Records; Access
The Xxxx Group and the TCM Group shall (a) in accordance with their then
current record retention policy, retain records, documents, accounting data and
other information (including computer data) necessary for the preparation and
filing of all Tax Returns in respect of Taxes of the Xxxx Group or the TCM Group
for any Pre-Distribution Period or for the audit of such Tax Returns; and (b)
give to the other reasonable access to such records, documents, accounting data
and other information (including computer data) and to its personnel (insuring
their cooperation) and premises, for the purpose of the review or audit of such
Tax Returns to the extent relevant to an obligation or liability of a party
under this Agreement. At any time after the Distribution Date that the TCM Group
proposes to destroy such material or information, they shall first notify the
Xxxx Group in writing and the Xxxx Group shall be entitled to receive such
materials or information proposed to be destroyed. At any time after the
Distribution Date that the Xxxx Group proposes to destroy such material or
information, they shall first notify the TCM Group in writing and the TCM Group
shall be entitled to receive such materials or information proposed to be
destroyed.
ARTICLE VIII.
Termination of Liabilities
Notwithstanding any other provision in this Agreement, any liabilities
determined under this Agreement shall not terminate any earlier than the
expiration of the applicable statute of limitation for such liability. All other
covenants under this Agreement shall survive indefinitely.
ARTICLE IX.
Dispute Resolution; Miscellaneous Provisions
To the extent not inconsistent with any specific term of this Agreement,
the following sections of the Separation and Distribution Agreement shall apply
in relevant part to this Agreement: 6.3 (Privileged Matters), 8 (Dispute
Resolution), 9.6 (Amendment), 9.7 (No Third-Party Beneficiaries), 9.8 (Governing
Law), 9.10 (Notices), 9.11 (Counterparts), 9.12 (Binding Effect and Assignment),
9.13 (Severability), 9.14 (Failure and Remedies), 9.15 (Authority), 9.16
(Interpretation).
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
XXXX TELEVISION, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Chief
Operating
Officer
TRIPLE CROWN MEDIA, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
and
Secretary
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