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EXHIBIT 10.2
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CONTRIBUTION AGREEMENT
Among
The Times Mirror Company,
Fortification Holdings Corporation,
Wick Holdings Corporation,
Eagle New Media Investments, LLC,
Eagle Publishing Investments, LLC,
Xxxxxxxx Trust Xx. 0,
Xxxxxxxx Xxxxx Xx. 0,
and
TMCT II, LLC
Dated September 3, 1999
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TABLE OF CONTENTS
RECITALS.......................................................................1
1. DEFINITIONS.................................................................1
2. THE CLOSING.................................................................2
3. CONTRIBUTION OF ASSETS......................................................2
3.1 Contribution of Securities Assets by Trust 1...................2
3.2 Contribution of Securities Assets by Trust 2...................3
3.3 Contribution of OP Preferred Assets by TMC.....................3
3.4 Contribution of Cash Asset by Eagle 1,
Eagle 2, Fortification and Wick................................3
3.5 Securities Assets Contributed Ex-Dividend......................3
3.6 No Liabilities.................................................3
4. INSTRUMENTS OF CONVEYANCE AND TRANSFER......................................3
5. REPRESENTATIONS AND WARRANTIES RELATING TO THE TMC MEMBERS..................4
5.1 Organization, Corporate Power and Authority....................4
5.2 Authorization of Agreements....................................5
5.3 No Conflicts...................................................5
5.4 Effect of Agreement............................................5
5.5 Title to OP Preferred Assets...................................5
5.6 Commissions....................................................5
5.7 Investment Company.............................................6
5.8 No Registration; Investment Intent.............................6
5.9 Taxes........................................................ 6
6. REPRESENTATIONS AND WARRANTIES OF TRUST 1...................................7
6.1 Authorization of Agreement.....................................7
6.2 No Conflicts...................................................7
6.3 Effect of Agreement............................................7
6.4 Title to Trust 1's Securities Assets...........................7
6.5 Commissions....................................................8
6.6 Investment Company.............................................8
6.7 No Registration; Investment Intent.............................8
6.8 Agreements with TMCT Ventures, L.P.............................8
7. REPRESENTATIONS AND WARRANTIES OF TRUST 2...................................9
7.1 Authorization of Agreement.....................................9
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7.2 No Conflicts...................................................9
7.3 Effect of Agreement............................................9
7.4 Title to Trust 2's Securities Assets..........................10
7.5 Commissions...................................................10
7.6 Investment Company............................................10
7.7 No Registration; Investment Intent............................10
7.8 Agreements with TMCT Ventures, L.P............................11
8. REPRESENTATIONS AND WARRANTIES OF LLC......................................11
8.1 Organization, Corporate Power and Authority...................11
8.2 Authorization of Agreements...................................11
8.3 No Conflicts..................................................11
8.4 Effect of Agreement...........................................11
8.5 Commissions...................................................12
8.6 Agreements with TMCT Ventures, L.P............................12
8.7 Actions Since Formation.......................................12
9. CONDITIONS.................................................................12
9.1 Conditions to Obligations of All the Parties..................12
9.1.1 Execution of the LLC Agreement..................12
9.2 Additional Conditions to Obligations of the TMC Members.......12
9.2.1 Opinion of Xxxxxx & Xxxxxxx.....................12
9.2.2 Board Approval..................................12
9.3 Additional Conditions to Obligations of the Trusts............13
9.3.1 Opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP..........13
9.3.2 Opinion of Xxxxxxxx, Xxxxxx & Finger............13
10. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATIONS.............................13
10.1 Survival of Representations..................................13
10.2 Agreements to Indemnify......................................13
10.2.1 Trust 1 Indemnity..............................13
10.2.2 Trust 2 Indemnity..............................14
10.2.3 TMC Indemnity..................................14
10.2.4 LLC Indemnity..................................14
10.2.5 Indemnification Threshold......................14
10.2.6 Subrogation....................................14
10.3 Conditions of Indemnification................................14
10.3.1 Notice.........................................14
10.3.2 Failure to Assume Defense......................15
10.3.3 Claim Adverse to Indemnifying Party............15
10.3.4 Cooperation....................................15
10.4 Damages......................................................15
11. COVENANTS.................................................................16
11.1 Cooperation..................................................16
11.2 Tax Cooperation..............................................16
11.3 Exchange of Series C-1 and Series C-2 Preferred Stock........16
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11.4 Tax Status...................................................16
11.5 Actions With Respect to OP Preferred Assets..................17
12. MISCELLANEOUS.............................................................17
12.1 Waivers......................................................17
12.2 Entire Agreement.............................................17
12.3 Binding Effect, Benefits.....................................17
12.4 Assignability................................................17
12.5 Notices......................................................18
12.6 Governing Law; Jurisdiction..................................19
12.7 Attorneys' Fees..............................................19
12.8 Rules of Construction........................................19
12.8.1 Headings.......................................19
12.8.2 Tense and Case.................................19
12.8.3 Severability...................................19
12.9 Counterparts.................................................19
12.10 Expenses....................................................20
12.11 Construction of Agreement...................................20
12.12 Consent to Jurisdiction and Forum Selection.................20
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CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (together with the exhibits and schedules
hereto, the "Agreement") is entered into as of September 3, 1999 by and among:
(A) (i) The Times Mirror Company, a Delaware corporation ("TMC");
(ii) Eagle New Media Investments, LLC, a Delaware limited
liability company ("Eagle 1"); (iii) Eagle Publishing
Investments, LLC, a Delaware limited liability company ("Eagle
2"); (iv) Fortification Holdings Corporation, a Delaware
corporation ("Fortification"); (v) Wick Holdings Corporation, a
Delaware corporation ("Wick" and collectively with TMC, Eagle 1,
Eagle 2 and Fortification, the "TMC Members");
(B) (i) Xxxxxxxx Trust No. 1 ("Trust 1"); and (ii) Xxxxxxxx Trust
Xx. 0 ("Xxxxx 0," and together with Trust 1, the "Trusts"); and
(C) TMCT II, LLC, a Delaware limited liability company ("LLC"),
with reference to the following facts:
RECITALS
A. The Trusts and the TMC Members intend to enter into the Amended
and Restated Limited Liability Company Agreement of LLC substantially in the
form attached hereto as Exhibit A (the "LLC Agreement").
B. Under the LLC Agreement, (i) TMC is obligated to contribute to
LLC, as a capital contribution, assets referred to herein as the OP Preferred
Assets and (ii) Eagle 1, Eagle 2, Fortification and Wick are obligated to
contribute to LLC, as a capital contribution, cash and cash equivalents in the
amount of $233,251,757, $400,000,000, $1,000,000 and $1,000,000, respectively
(collectively, the "Cash Asset").
C. Under the LLC Agreement, the Trusts are obligated to contribute
to LLC, as a capital contribution, certain assets referred to herein as the
Securities Assets.
D. The parties wish to enter into this Agreement to govern certain
matters with respect to the foregoing contributions.
NOW, therefore, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties agree as follows:
1. DEFINITIONS.
Unless otherwise indicated herein, capitalized terms used herein shall
have their respective meanings set forth in the LLC Agreement. In addition, the
following terms shall have the following meanings when used in this Agreement:
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"Assets" shall mean the Cash Asset, the OP Preferred Assets and the
Securities Assets.
"Cash Asset" shall have the meaning set forth in the Recitals hereto.
"Closing" shall have the meaning set forth in Section 2.
"Encumbrances" shall mean all title defects, objections, liens,
mortgages, pledges, charges, security interests, encumbrances, leases, options
to purchase, rights of first refusal, material restrictions or adverse claims of
any nature whatsoever.
"Indemnified Party" shall mean, with respect to any Losses, the party
seeking indemnity hereunder.
"Indemnifying Party" shall mean, with respect to any Losses, the party
from whom indemnity is being sought hereunder.
"Losses" shall mean any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, remedies and penalties (including,
without limitation, interest, penalties, settlement costs and any legal,
accounting or other fees and expenses for investigating and/or defending any
claims or threatened actions) incurred by the Indemnified Party.
"Material Adverse Effect" shall mean a material adverse effect on the
business, assets, prospects, condition (financial or otherwise) or results of
operations of the person or entity to which reference is made. If such person or
entity has subsidiaries, such determination shall be made on a consolidated
basis.
"OP Preferred Assets" shall mean the Cumulative Redeemable Preferred
Units described on Schedule 3.3 hereof.
"Securities Assets" shall mean the Trust 1 Securities Assets and the
Trust 2 Securities Assets.
"Trust 1 Securities Assets" shall have the meaning set forth in Section
3.1.
"Trust 2 Securities Assets" shall have the meaning set forth in Section
3.2.
2. THE CLOSING.
Upon the satisfaction or waiver of all conditions set forth in Article 9
of this Agreement, the closing (the "Closing") of the contribution of assets to
LLC contemplated hereby shall take place at the offices of Xxxxxx, Xxxx &
Xxxxxxxx LLP, 000 X. Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, at 9:00 a.m.
on September 3, 1999, or such other place, time and date as TMC and the Trusts
may mutually select.
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3. CONTRIBUTION OF ASSETS.
3.1 CONTRIBUTION OF SECURITIES ASSETS BY TRUST 1. Subject to the
terms and conditions of this Agreement, at the Closing, Trust 1 shall convey,
transfer, assign and deliver to LLC, as a contribution, all of such Trust's
right, title and interest in and to the securities set forth on Schedule 3.l
(the "Trust 1 Securities Assets"). The parties agree that, as of the Closing,
Trust 1 shall be deemed to have contributed the Trust 1 Securities Assets to the
capital of LLC in satisfaction of its capital contribution obligations under the
LLC Agreement.
3.2 CONTRIBUTION OF SECURITIES ASSETS BY TRUST 2. Subject to the
terms and conditions of this Agreement, at the Closing, Trust 2 shall convey,
transfer, assign and deliver to LLC, as a contribution, all of such Trust's
right, title and interest in and to the securities set forth on Schedule 3.2
(the "Trust 2 Securities Assets"). The parties agree that, as of the Closing,
Trust 2 shall be deemed to have contributed the Trust 2 Securities Assets to
the capital of LLC in satisfaction of its capital contribution obligations
under the LLC Agreement.
3.3 CONTRIBUTION OF OP PREFERRED ASSETS BY TMC. Subject to the terms
and conditions of this Agreement, at the Closing, TMC shall convey, transfer,
assign and deliver to LLC, as a contribution, all of TMC's right, title and
interest in and to the OP Preferred Assets set forth on Schedule 3.3 and all of
its rights under any contribution agreement, partnership agreement, registration
rights agreement, charter and other document related to TMC's acquisition and
ownership of such OP Preferred Assets, true and correct copies of which have
been delivered to LLC (collectively, the "OP Preferred Agreements"). The
parties agree that, as of the Closing, the amount of the OP Preferred Assets
contributed by TMC shall be as set forth on Schedule 3.3, and TMC shall be
deemed to have contributed the sum of $600,000,000.00, in the aggregate, to the
capital of LLC in satisfaction of its capital contribution obligations under
the LLC Agreement.
3.4 CONTRIBUTION OF CASH ASSET BY EAGLE 1, EAGLE 2, FORTIFICATION
AND WICK.
Subject to the terms and conditions of this Agreement, at the Closing,
each of Eagle 1, Eagle 2, Fortification and Wick shall contribute, convey,
transfer, assign and deliver to LLC its respective portion of the Cash Asset.
The parties agree that, as of the Closing, each of Eagle 1, Eagle 2,
Fortification and Wick shall be deemed to have contributed $233,251,757,
$400,000,000, $1,000,000 and $1,000,000 in cash or cash equivalents,
respectively to the capital of LLC in satisfaction of their respective capital
contribution obligations under the LLC Agreement.
3.5 SECURITIES ASSETS CONTRIBUTED EX-DIVIDEND. Anything herein to
the contrary notwithstanding, it is agreed by the parties that any and all
dividends paid on the Trust 1 Securities Assets and the Trust 2 Securities
Assets with a record date prior to the Closing shall belong and be paid to Trust
1 and Trust 2, respectively, and not to LLC.
3.6 NO LIABILITIES. In no event shall LLC assume any liabilities of
Trust 1, Trust 2 or the TMC Members in connection with contribution of Assets
and the transactions contemplated hereby.
4. INSTRUMENTS OF CONVEYANCE AND TRANSFER.
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At the Closing, the Trusts, TMC, Eagle 1, Eagle 2, Fortification and
Wick shall execute and deliver to LLC any and all such documents as may
reasonably requested by any other party in order to effect the transfers and
otherwise carry out the transactions contemplated herein, including without
limitation, stock powers executed in blank with respect to the OP Preferred
Assets and the Securities Assets contributed.
5. REPRESENTATIONS AND WARRANTIES RELATING TO THE TMC MEMBERS.
As an inducement for each of the Trusts and LLC to enter into this
Agreement, TMC represents and warrants to each of the Trusts and LLC that each
of the following statements is true and correct as of the date hereof:
5.1 ORGANIZATION, CORPORATE POWER AND AUTHORITY. Each of the TMC
Members is a corporation or limited liability company duly organized, validly
existing and in good standing under the laws of its state of organization, has
all requisite power and authority, corporate or other, to own, operate and lease
its properties and carry on its business as now conducted, and is duly qualified
to do business and is in good standing as a foreign corporation or a foreign
limited liability company in each jurisdiction in which the failure to so
qualify would have a Material Adverse Effect upon the TMC Members, taken as a
whole. All of the outstanding stock of Fortification and Wick is owned, directly
or indirectly, beneficially and of record, by TMC.
5.2 AUTHORIZATION OF AGREEMENTS. Each of the TMC Members has all
requisite corporate or limited liability company power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby and all corporate or limited liability company
action other than approval of the Board of Directors of TMC necessary for such
execution, delivery, performance and consummation has been duly taken.
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5.3 NO CONFLICTS. The execution and delivery by any of the TMC
Members of this Agreement does not, and the performance and consummation of the
transactions contemplated hereby will not, result in or give rise to (with or
without the giving of notice or the lapse of time, or both) any conflict with,
breach or violation of, or default, termination, forfeiture or acceleration of
obligations under, any terms or provisions of (i) its certificate of
incorporation, certificate of formation, bylaws, or operating agreement, (ii)
any statute, rule, regulation or any judicial, governmental, regulatory or
administrative decree, order or judgment applicable to it or its assets, or
(iii) any material agreement, lease or other instrument to which it is a party
or by which it or any of its assets may be bound (other than, in the case of
items (ii) and (iii) immediately above, such breaches, violations, defaults,
terminations, forfeitures or accelerations as would not have a Material Adverse
Effect upon the TMC Members, taken as a whole).
5.4 EFFECT OF AGREEMENT. This Agreement, upon approval of the Board
of Directors of TMC, shall be the legal, valid and binding obligation of each of
the TMC Members, enforceable against each of them in accordance with the terms
hereof, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and subject to general equitable principles.
5.5 TITLE TO OP PREFERRED ASSETS. Upon the Closing, LLC shall have
good and valid title to all of the OP Preferred Assets, free and clear of all
Encumbrances and the benefit of any and all representations, warranties,
covenants and agreements relating thereto as provided in the OP Preferred
Agreements and any assets received in respect thereof, as the contributor and
holder thereunder and such representations, warranties, covenants and agreements
are assignable to LLC.
5.6 COMMISSIONS. None of the TMC Members nor any of their respective
directors, officers, employees or agents is obligated for the payment of fees or
expenses of any broker or finder in connection with the origin, negotiation or
execution of this Agreement or in connection with the transactions contemplated
hereby, except as disclosed to the other parties hereto.
5.7 INVESTMENT COMPANY. None of the TMC Members is an investment
company as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act"). For purposes of Section 3(c)(1) of the
Investment Company Act, LLC has no more than the number of beneficial holders of
its outstanding securities as are set forth on Schedule 5.7 hereto on account of
the TMC Members.
5.8 NO REGISTRATION; INVESTMENT INTENT. (i) Each of the TMC Members
understands that its interest in the LLC is being offered and sold without
registration under the Securities Act of 1933, as amended (the "Act"), based
upon an exemption provided under the Act and without qualification or
registration under the securities laws of California, in reliance upon the
representations and warranties made by the parties hereto, and its interest in
the LLC may not be re-sold, transferred, assigned or otherwise disposed of other
than pursuant to an effective registration statement or pursuant to an exemption
from such registration requirements; (ii) each of the TMC Members agrees that it
shall not sell, transfer, assign, pledge or otherwise dispose of
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its interest in the LLC unless pursuant to Article V of the LLC Agreement and
(a) pursuant to an effective registration statement or (b) the TMC Member
delivers to LLC an opinion of counsel, reasonably acceptable to LLC, that such
sale, transfer, assignment, pledge or other disposition is exempt from
registration under the Act; (iii) each of the TMC Members understands that it
may be deemed an "affiliate" of LLC, as such term is used for purposes of Rule
144 under the Act, in which case any disposition of its interest in the LLC by
such TMC Member may be subject to the requirements of such rules; (iv) each of
the TMC Members is acquiring its interest in the LLC for investment purposes for
its own account and without a view to distribution or resale thereof (except in
compliance with applicable law); (v) each of the TMC Members acknowledges that
it has had the right to ask questions of and receive answers from the parties
hereto and their officers and representatives and to obtain such information
concerning the parties hereto and the transactions contemplated hereby as each
of the TMC Members deems necessary prior to making an investment decision with
respect to the transactions contemplated hereby, including with respect to the
interest in the LLC; (vi) each of the TMC Members has such knowledge and
experience in financial and business matters so as to enable such TMC Member to
evaluate the merits and risks of an investment in the interest in the LLC; (vii)
each of the TMC Members is able to bear the economic risk of the investment in
the interest in the LLC.
5.9 TAXES. Each of the TMC Members has filed all required franchise
tax returns, if any, and paid all required taxes, if any, under the California
Revenue & Taxation Code, subject to additional amounts that may have to be paid
as a result of Federal audit adjustments.
6. REPRESENTATIONS AND WARRANTIES OF TRUST 1.
As an inducement for the TMC Members, Trust 2 and LLC to enter into this
Agreement, Trust 1 represents and warrants to the TMC Members, Trust 2 and LLC
that each of the following statements is true and correct as of the date hereof:
6.1 AUTHORIZATION OF AGREEMENT. (i) Trust 1 has not been revoked,
modified, or amended in any manner which would cause the representations and
warranties made by Trust 1 herein to be untrue or incorrect or cause this
Agreement to be unenforceable against Trust 1; (ii) each trustee (a "Trustee")
of Trust 1 has accepted appointment as a Trustee of Trust 1 under the
declaration of trust relating to Trust 1 (the "Declaration"), and, by the terms
of Trust 1, is qualified and possesses the necessary trust powers to act, and
does act as a Trustee pursuant to such Declaration; (iii) the Trustees who have
executed and delivered this Agreement on behalf of Trust 1 possess the full
power and authority to execute and deliver the Agreement and to consummate the
transactions contemplated hereby, and, in so doing, are properly acting and
exercising their powers under such Declaration; (iv) the Trustees who have
executed and delivered this Agreement on behalf of Trust 1 constitute all of the
currently acting Trustees of Trust 1, and the signature of such Trustees is all
that is required for the execution and delivery of this Agreement and to
authorize the consummation of the Transactions; and (v) no other signature or
other proceedings on the part of Trust 1 or any of its Trustees or beneficiaries
is necessary to approve this Agreement or to authorize the execution and
delivery, and the performance of the terms, hereof and thereof.
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6.2 NO CONFLICTS. The execution and delivery by Trust 1 of this
Agreement does not, and the performance and consummation of the transactions
contemplated hereby will not, result in or give rise to (with or without the
giving of notice or the lapse of time, or both) any conflict with, breach or
violation of, or default, termination, forfeiture or acceleration of obligations
under, any terms or provisions of (i) its declaration of trust, (ii) any
statute, rule, regulation or any judicial, governmental, regulatory or
administrative decree, order or judgment applicable to it or its assets, or
(iii) any material agreement, lease or other instrument to which it is a party
or by which it or any of its assets may be bound (other than, in the case of
items (ii) and (iii) immediately above, such breaches, violations, defaults,
terminations, forfeitures or accelerations as would not have a Material Adverse
Effect upon Trust 1).
6.3 EFFECT OF AGREEMENT. This Agreement is Trust 1's legal, valid
and binding obligation, enforceable against it in accordance with the terms
hereof, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and subject to general equitable principles.
6.4 TITLE TO TRUST 1'S SECURITIES ASSETS. Trust 1 has good and valid
title to all of the Trust 1 Securities Assets, free and clear of all
Encumbrances.
6.5 COMMISSIONS. Neither Trust 1 nor any of its respective trustees
or agents is obligated for the payment of fees or expenses of any broker or
finder in connection with the origin, negotiation or execution of this Agreement
or in connection with the transactions contemplated hereby, except as disclosed
to the other parties hereto.
6.6 INVESTMENT COMPANY. Trust 1 is not an investment company as such
term is defined in the Investment Company Act. For purposes of Section 3(c)(1)
of the Investment Company Act, LLC has no more than the number of beneficial
holders of its outstanding securities set forth on Schedule 6.6 hereto on
account of Trust 1.
6.7 NO REGISTRATION; INVESTMENT INTENT. (i) Trust 1 understands that
the interest in the LLC is being offered and sold without registration under the
Act, based upon an exemption provided under the Act and without qualification or
registration under the securities laws of California, in reliance upon the
representations and warranties made by the parties hereto, and the interest in
the LLC may not be re-sold, transferred, assigned or otherwise disposed of other
than pursuant to an effective registration statement or pursuant to an exemption
from such registration requirements; (ii) Trust 1 agrees that it shall not sell,
transfer, assign, pledge or otherwise dispose of any interest in the LLC unless
pursuant to Article V of the LLC Agreement and (a) pursuant to an effective
registration statement or (b) Trust 1 delivers to LLC an opinion of counsel,
reasonably acceptable to LLC, that such sale, transfer, assignment, pledge or
other disposition is exempt from registration under the Act; (iii) Trust 1
understands that it may be deemed an "affiliate" of LLC, as such term is used
for purposes of Rule 144 under the Act, in which case any disposition of its
interest in the LLC by Trust 1 may be subject to the requirements of such rules;
(iv) Trust 1 is acquiring the interest in the LLC for investment purposes for
its own account and without a view to distribution or resale thereof (except in
compliance with applicable law); (v) Trust 1 acknowledges that it has had the
right to ask
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questions of and receive answers from the parties hereto and their officers and
representatives and to obtain such information concerning the parties hereto and
the transactions contemplated hereby as Trust 1 deems necessary prior to making
an investment decision with respect to the transactions contemplated hereby,
including with respect to the interest in the LLC; (vi) Trust 1 has such
knowledge and experience in financial and business matters so as to enable Trust
1 to evaluate the merits and risks of an investment in the interest in the LLC;
(vii) Trust 1 is able to bear the economic risk of the investment in the
interest in the LLC; and (viii) Trust 1 is domiciled in the State of California,
and to the extent it and its subtrusts file income tax returns, each files
income tax returns as a person or entity that is domiciled in that State.
6.8 AGREEMENTS WITH TMCT VENTURES, L.P.
All agreements between (i) Trust 1 and any of its affiliates, on the one
hand, and (ii) TMCT Ventures, L.P., a Delaware limited partnership, or any of
the partners of such partnership, on the other hand, have been disclosed to each
of the parties hereto in writing.
7. REPRESENTATIONS AND WARRANTIES OF TRUST 2.
As an inducement for the TMC Members, Trust 1 and LLC to enter into this
Agreement, Trust 2 represents and warrants to the TMC Members, Trust 1 and LLC
that each of the following statements is true and correct as of the date hereof:
7.1 AUTHORIZATION OF AGREEMENT. (i) Trust 2 has not been revoked,
modified, or amended in any manner which would cause the representations and
warranties made by Trust 2 herein to be untrue or incorrect or cause this
Agreement to be unenforceable against Trust 2; (ii) each Trustee of Trust 2 has
accepted appointment as a Trustee of Trust 2 under the Declaration relating to
Trust 2, and, by the terms of Trust 2, is qualified and possesses the necessary
trust powers to act, an does act as a Trustee pursuant to such Declaration;
(iii) the Trustees who have executed and delivered this Agreement on behalf of
Trust 2 possess the full power and authority to execute and deliver the
Agreement and to consummate the transactions contemplated hereby, and, in so
doing, are properly acting and exercising their powers under such Declaration;
(iv) the Trustees who have executed and delivered this Agreement on behalf of
Trust 2 constitute all of the currently acting Trustees of Trust 2, and the
signature of such Trustees is all that is required for the execution and
delivery of this Agreement and to authorize the consummation of the
Transactions; and (v) no other signature or other proceedings on the part of
Trust 2 or any of its Trustees or beneficiaries is necessary to approve this
Agreement or to authorize the execution and delivery, and the performance of the
terms, hereof and thereof.
7.2 NO CONFLICTS. The execution and delivery by Trust 2 of this
Agreement does not, and the performance and consummation of the transactions
contemplated hereby will not, result in or give rise to (with or without the
giving of notice or the lapse of time, or both) any conflict with, breach or
violation of, or default, termination, forfeiture or acceleration of obligations
under, any terms or provisions of (i) its declaration of trust, (ii) any
statute, rule, regulation or any judicial, governmental, regulatory or
administrative decree, order or judgment applicable to it or its assets, or
(iii) any material agreement, lease or other instrument to which it is a party
or by which it or any of its assets may be bound (other than, in the case of
items (ii) and (iii)
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immediately above, such breaches, violations, defaults, terminations,
forfeitures or accelerations as would not have a Material Adverse Effect upon
Trust 2).
7.3 EFFECT OF AGREEMENT. This Agreement is Trust 2's legal, valid
and binding obligation, enforceable against it in accordance with the terms
hereof, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and subject to general equitable principles.
7.4 TITLE TO TRUST 2'S SECURITIES ASSETS. Trust 2 has good and valid
title to all of the Trust 2 Securities Assets, free and clear of all
Encumbrances.
7.5 COMMISSIONS. Neither Trust 2 nor any of its respective trustees
or agents is obligated for the payment of fees or expenses of any broker or
finder in connection with the origin, negotiation or execution of this Agreement
or in connection with the transactions contemplated hereby, except as disclosed
to the other parties hereto.
7.6 INVESTMENT COMPANY. Trust 2 is not an investment company as such
term is defined in the Investment Company Act. For purposes of Section 3(c)(1)
of the Investment Company Act, LLC has no more than the number of beneficial
holders of its outstanding securities set forth on Schedule 7.6 hereto on
account of Trust 2.
7.7 NO REGISTRATION; INVESTMENT INTENT. (i) Trust 2 understands that
the interest in the LLC is being offered and sold without registration under the
Act, based upon an exemption provided under the Act and without qualification or
registration under the securities laws of California, in reliance upon the
representations and warranties made by the parties hereto, and the interests in
the LLC may not be re-sold, transferred, assigned or otherwise disposed of other
than pursuant to an effective registration statement or pursuant to an exemption
from such registration requirements; (ii) Trust 2 agrees that it shall not sell,
transfer, assign, pledge or otherwise dispose of any interest in the LLC unless
pursuant to Article V of the LLC Agreement and (a) pursuant to an effective
registration statement or (b) Trust 2 delivers to LLC an opinion of counsel,
reasonably acceptable to LLC, that such sale, transfer, assignment, pledge or
other disposition is exempt from registration under the Act; (iii) Trust 2
understands that it may be deemed an "affiliate" of LLC, as such term is used
for purposes of Rule 144 under the Act, in which case any disposition of its
interest in the LLC by Trust 2 may be subject to the requirements of such rules;
(iv) Trust 2 is acquiring the interest in the LLC for investment purposes for
its own account and without a view to distribution or resale thereof (except in
compliance with applicable law); (v) Trust 2 acknowledges that it has had the
right to ask questions of and receive answers from the parties hereto and their
officers and representatives to obtain such information concerning the parties
hereto and the transactions contemplated hereby as Trust 2 deems necessary prior
to making an investment decision with respect to the transactions contemplated
hereby, including with respect to the interest in the LLC; (vi) Trust 2 has such
knowledge and experience in financial and business matters so as to enable Trust
2 to evaluate the merits and risks of an investment in the interest in the LLC;
(vii) Trust 2 is able to bear the economic risk of the investment in the
interest in the LLC; and (viii) Trust 2 is domiciled in the State of California,
and to the extent it and its subtrusts file income tax returns,
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each files income tax returns as a person or entity that is domiciled in that
State.
7.8 AGREEMENTS WITH TMCT VENTURES, L.P.
All agreements between (i) Trust 2 and any of its affiliates, on the one
hand, and (ii) TMCT Ventures, L.P., a Delaware limited partnership, or any of
the partners of such partnership, on the other hand, have been disclosed to each
of the parties hereto in writing.
8. REPRESENTATIONS AND WARRANTIES OF LLC.
As an inducement for the TMC Members and the Trusts to enter into this
Agreement, LLC represents and warrants to the TMC Members and the Trusts that
each of the following statements is true and correct as of the date hereof:
8.1 ORGANIZATION, CORPORATE POWER AND AUTHORITY. LLC is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware, has all requisite power and authority to own,
operate and lease its properties and carry on its business as now, or
anticipated to be, conducted, and is duly qualified to do business and is in
good standing as a foreign limited liability company in each jurisdiction in
which the failure to so qualify would have a Material Adverse Effect upon LLC.
8.2 AUTHORIZATION OF AGREEMENTS. LLC has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby and all action necessary
for such execution, delivery, performance and consummation has been duly taken.
8.3 NO CONFLICTS. The execution and delivery by LLC of this
Agreement does not, and the performance and consummation of the transactions
contemplated hereby will not, result in or give rise to (with or without the
giving of notice or the lapse of time, or both) any conflict with, breach or
violation of, or default, termination, forfeiture or acceleration of obligations
under, any terms or provisions of (i) its Certificate of Formation or the LLC
Agreement, (ii) any statute, rule, regulation or any judicial, governmental,
regulatory or administrative decree, order or judgment applicable to it or its
assets, or (iii) any agreement, lease or other instrument to which it is a party
or by which it or any of its assets may be bound (other than, in the case of
items (ii) and (iii) immediately above, such breaches, violations, defaults,
terminations, forfeitures or accelerations as would not have a Material Adverse
Effect upon LLC).
8.4 EFFECT OF AGREEMENT. This Agreement is the legal, valid and
binding obligation of LLC, enforceable against it in accordance with the terms
hereof, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and subject to general equitable principles.
8.5 COMMISSIONS. Neither LLC nor any of its managers, members,
employees or agents have employed, or incurred any liability to, any broker,
finder or agent for any brokerage fees, finder's fees, commissions or other
amounts with respect to the transactions contemplated hereby, except as
disclosed to the other parties hereto.
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8.6 AGREEMENTS WITH TMCT VENTURES, L.P. All agreements between (i)
LLC, on the one hand, and (ii) TMCT Ventures, L.P., a Delaware limited
partnership, or any of the partners of such partnership, on the other hand, have
been disclosed to each of the parties hereto in writing.
8.7 ACTIONS SINCE FORMATION. LLC has provided the TMC Members and
the Trusts with true, correct and complete copies of its Certificate of
Formation and Limited Liability Company Agreement, and has advised the TMC
Members and the Trusts of all actions it has taken since its formation.
9. CONDITIONS.
9.1 CONDITIONS TO OBLIGATIONS OF ALL THE PARTIES. The obligations of
each of the parties hereto to consummate the transactions contemplated hereby
are subject to the satisfaction or waiver of the following conditions:
9.1.1 EXECUTION OF THE LLC AGREEMENT. The LLC Agreement shall
have been executed and delivered by all the parties hereto.
9.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF THE TMC MEMBERS. The
obligations of the TMC Members to consummate the transactions contemplated
hereby are subject to the satisfaction or waiver of the following conditions:
9.2.1 OPINION OF XXXXXX & XXXXXXX. The TMC Members shall have
received an opinion of Xxxxxx & Xxxxxxx, counsel to the Trusts, substantially in
the form previously provided to Xxxxxx & Xxxxxxx.
9.2.2 BOARD APPROVAL. The Board of Directors of TMC shall have
approved this Agreement and the LLC Agreement and the transactions contemplated
thereby. TMC shall have received a fairness opinion of Xxxxxxx, Sachs & Co. in
form and substance reasonably satisfactory to the Board of Directors of TMC.
9.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF THE TRUSTS. The
obligations of the Trusts to consummate the transactions contemplated hereby are
subject to the satisfaction or waiver of the following conditions:
9.3.1 OPINION OF XXXXXX, XXXX & XXXXXXXX LLP. The Trusts shall
have received an opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to the TMC
Members, substantially in the form previously provided to Xxxxxx, Xxxx &
Xxxxxxxx LLP.
9.3.2 OPINION OF XXXXXXXX, XXXXXX & FINGER. The Trusts shall
have received an opinion of Xxxxxxxx, Xxxxxx & Finger, counsel to the TMC
Members, substantially in the form previously provided to Xxxxxxxx, Xxxxxx &
Finger.
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10. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATIONS.
10.1 SURVIVAL OF REPRESENTATIONS. All representations, warranties,
covenants and agreements of TMC, the Trusts and LLC in this Agreement shall
survive the execution, delivery and performance of this Agreement in accordance
with this Article 10. The representations and warranties of TMC, the Trusts and
LLC set forth in this Agreement, and their indemnity obligations under this
Article 10, shall terminate on the second anniversary hereof (except to the
extent that claims have been made or notice of a claim has been provided prior
thereto) (the "Indemnity Termination Date"); provided, however, that all
representations and warranties and indemnity obligations by the Trusts relating
to the Securities Assets (including the representations and warranties set forth
in Sections 6.4 and 7.4) and by TMC relating to the OP Preferred Assets
(including the representations and warranties regarding title set forth in
Section 5.5) shall continue as long as LLC owns any of the Securities Assets or
the OP Preferred Assets, respectively, and thereafter to the extent that LLC may
have any liabilities or potential liability relating thereto.
10.2 AGREEMENTS TO INDEMNIFY.
10.2.1 TRUST 1 INDEMNITY. Subject to the terms and conditions
of this Section 10, Trust 1 hereby agrees to indemnify, defend and hold the TMC
Members, Trust 2 and LLC harmless from and against all Losses incurred by the
TMC Members, Trust 2 and LLC and their respective employees, directors,
officers, shareholders, beneficiaries, members, managers, trustees and agents
resulting from a breach of any representation, warranty or covenant of Trust 1
made in this Agreement.
10.2.2 TRUST 2 INDEMNITY. Subject to the terms and conditions
of this Section 10, Trust 2 hereby agrees to indemnify, defend and hold the TMC
Members, Trust 1 and LLC harmless from and against all Losses incurred by the
TMC Members, Trust 1 and LLC and their respective employees, directors,
officers, shareholders, beneficiaries, members, managers, trustees and agents
resulting from a breach of any representation, warranty or covenant of Trust 2
made in this Agreement.
10.2.3 TMC INDEMNITY. Subject to the terms and conditions of
this Section 10, TMC hereby agrees to indemnify, defend and hold LLC and the
Trusts harmless from and against all Losses incurred by LLC and the Trusts and
their respective employees, members, managers, beneficiaries, trustees and
agents resulting from a breach of any representation, warranty or covenant of
the TMC Members made in this Agreement.
10.2.4 LLC INDEMNITY. Subject to the terms and conditions of
this Section 10, LLC hereby agrees to indemnify, defend and hold the TMC Members
and the Trusts harmless from and against all Losses incurred by the TMC Members
and the Trusts and their respective employees, directors, officers,
shareholders, beneficiaries, trustees and agents resulting from a breach of any
representation, warranty or covenant of LLC made in this Agreement.
10.2.5 INDEMNIFICATION THRESHOLD. No claim for indemnification
will be made by any party hereunder unless the aggregate of all Losses incurred
by such party otherwise
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indemnified against hereunder exceeds $250,000 and only to the extent of any
such Losses in excess of $250,000.
10.2.6 SUBROGATION. If the Indemnifying Party makes any payment
under this Section 10 in respect of any Losses, the Indemnifying Party shall be
subrogated, to the extent of such payment, to the rights of the Indemnified
Party against any insurer or third party with respect to such Losses; provided,
however, that the Indemnifying Party shall not have any rights of subrogation
with respect to the Indemnified Party or any of its affiliates or any of its or
its affiliates' officers, directors, agents or employees.
10.3 CONDITIONS OF INDEMNIFICATION. If any claim is asserted or
action commenced against an Indemnified Party by a third party, the respective
obligations and liabilities of the Indemnifying Party to the Indemnified Party
under Section 10.2 shall be subject to the following terms and conditions:
10.3.1 NOTICE. Within 15 days after receipt of notice of
commencement of any action or the assertion of any claim by a third party (but
in any event at least 10 days preceding the date on which an answer or other
pleading must be served in order to prevent a judgment by default in favor of
the party asserting the claim), the Indemnified Party shall give the
Indemnifying Party written notice thereof together with a copy of such claim,
process or other legal pleading, and the Indemnifying Party shall have the right
to undertake the defense thereof by representatives of its own choosing that are
reasonably satisfactory to the Indemnified Party. Any failure of an Indemnified
Party to provide timely notice to the Indemnifying Party of the commencement of
any action or the assertion of any claim shall not relieve an Indemnifying Party
of any liability hereunder (including liability for pre-notice defense and
investigation costs) except to the extent that the Indemnifying Party was
actually prejudiced by such failure.
10.3.2 FAILURE TO ASSUME DEFENSE. If the Indemnifying Party, by
the tenth day after receipt of notice of any such claim (or, if earlier, by the
fifth day preceding the day on which an answer or other pleading must be served
in order to prevent judgment by default in favor of the person asserting such
claim), does not elect to defend against such claim, the Indemnified Party will
(upon further notice to the Indemnifying Party) have the right to undertake the
defense, compromise or settlement of such claim on behalf of and for the account
and risk of the Indemnifying Party; provided, however, that the Indemnified
Party shall not settle or compromise such claim without the Indemnifying Party's
consent, which consent shall not be unreasonably withheld; and provided further
that, the Indemnifying Party shall have the right to assume the defense of such
claim with counsel of its own choosing at any time prior to settlement,
compromise or final determination thereof.
10.3.3 CLAIM ADVERSE TO INDEMNIFYING PARTY. Notwithstanding
anything to the contrary in this Section 10.3, if there is a reasonable
probability that a claim may materially adversely affect the Indemnifying Party
other than as a result of money damages or other money payments, the
Indemnifying Party shall have the right, at its own cost and expense, to
compromise or settle such claim, but the Indemnifying Party shall not, without
the prior written consent of the Indemnified Party, settle or compromise any
claim or consent to the entry of any
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judgment which does not include as an unconditional term thereof the giving by
the claimant or the plaintiff to the Indemnified Party a release from all
liability in respect of such claim.
10.3.4 COOPERATION. In connection with any such
indemnification, the Indemnified Party will cooperate in all reasonable requests
of the Indemnifying Party.
10.4 DAMAGES. Notwithstanding anything to the contrary elsewhere in
this Agreement or the LLC Agreement, no party (or its affiliates) shall, in any
event, be liable to any other party (or its affiliates) for any consequential
damages, including, but not limited to, loss of revenue or income, cost of
capital, or loss of business reputation or opportunity relating to the breach or
alleged breach of this Agreement. Each party agrees that it will not seek
punitive damages as to any matter under, relating to or arising out of the
transactions contemplated hereby. Notwithstanding the foregoing, any rights
under the OP Preferred Agreements that are assigned to LLC and the assignment of
such rights, are not subject to this Section 10.4 hereto.
11. COVENANTS.
11.1 COOPERATION. Each party hereto agrees to execute any and all
further documents and writings and perform such other reasonable actions which
may be or become necessary or expedient to effectuate and carry out the
transactions contemplated hereby, including, without limitation, taking such
actions and executing such instruments as may reasonably be required to
consummate the contributions contemplated hereby (but which shall not include
any obligation to make payments).
11.2 TAX COOPERATION. The parties shall, and shall cause their
respective affiliates to, cooperate with each other in the preparation of all
tax returns, to the extent related to the transactions contemplated hereby, and
shall provide, or cause to be provided, to such other party any records and
other information reasonably requested by such party in connection therewith as
well as access to, and the cooperation of, the auditors of such other party and
its affiliates. The parties shall, and shall cause their respective affiliates
to, cooperate with the other party in connection with any tax investigation, tax
audit or other tax proceeding relating to the transactions contemplated hereby.
Any information obtained pursuant to this Section 11.2 relating to taxes shall
be kept confidential by the other parties. The parties hereto intend that the
transactions contemplated hereby be treated as contributions to the LLC
qualifying for nonrecognition of gain or loss under Section 721 of the Internal
Revenue Code of 1986, as amended, and each of the parties hereto agrees to
report the transactions contemplated hereby for federal and state income tax
purposes in a manner consistent with such characterization.
11.3 EXCHANGE OF SERIES C-1 AND SERIES C-2 PREFERRED STOCK. Following
the Closing, TMC shall use its reasonable best efforts to obtain a waiver from
the New York Stock Exchange in order to exchange, without obtaining the approval
of the stockholders of TMC, its Series C-1 Preferred Stock and its Series C-2
Preferred Stock contributed to LLC by Trust 2 for a new series of TMC preferred
stock to be issued to LLC, on the terms attached hereto on Schedule 11.3. If
such waiver is obtained, TMC shall use its reasonable best efforts to effect
such exchange.
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11.4 TAX STATUS. None of the Trusts or the TMC Members shall take any
action with respect to, in connection with or relating to the LLC to jeopardize
its status as an investment partnership under Section 731(c) of the Internal
Revenue Code of 1986, as amended.
11.5 ACTIONS WITH RESPECT TO OP PREFERRED ASSETS. TMC agrees that, it
will take such actions under the OP Preferred Agreements and any assets received
in respect thereof, as directed by the Investment Committee in its sole
discretion, to the extent the LLC is delayed, impaired or prevented from doing
so.
12. MISCELLANEOUS.
12.1 WAIVERS. Any party may, by written notice to the other parties,
(a) extend the time for the performance of any of the obligations or other
actions of the other parties under this Agreement; (b) waive any inaccuracies in
the representations or warranties of the other parties contained in this
Agreement or in any document delivered pursuant to this Agreement; (c) waive
compliance with any of the conditions or covenants of the other contained in
this Agreement; or (d) waive performance of any of the obligations of the others
under this Agreement. No variation or modification of this Agreement or the LLC
Agreement and no waiver of any provision or condition hereof or thereof, or
granting of any consent contemplated hereby or thereby, shall be valid unless in
writing and signed by the party against whom enforcement of any such variation,
modification, waiver or consent is sought. No variation, modification or
impairment will be implied by reason of any previous waiver, extension of time,
or delay or omission in exercise of rights or other indulgence.
12.2 ENTIRE AGREEMENT. This Agreement, the LLC Agreement and the
agreements to which LLC and TMC are parties with respect to the contribution of
the OP Preferred Assets and the exhibits and schedules hereto and thereto and
the documents referred to herein and therein constitute the final, exclusive and
complete understanding of the parties with respect to the subject matter hereof
and supersede any and all prior agreements, understandings and discussions with
respect thereto.
12.3 BINDING EFFECT, BENEFITS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective permitted
successors and assigns. Notwithstanding anything contained in this Agreement to
the contrary, nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto or their respective permitted
successors and assigns, any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
12.4 ASSIGNABILITY. Neither this Agreement nor any of the parties'
rights hereunder shall be assignable by any party without the prior written
consent of all parties, except that TMC may assign this Agreement, or its rights
hereunder, to any affiliate of TMC. No assignment shall relieve the assignor of
its obligations hereunder without the consent of the other parties.
12.5 NOTICES. Unless otherwise provided, all notices or other
communications required or permitted to be given to the parties hereto shall be
in writing and shall be deemed to have been given if personally delivered,
including personal delivery by facsimile, provided that the sender
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receives telephonic or electronic confirmation that the facsimile was received
by the recipient and that such facsimile is followed the same day by mailing by
certified or registered mail, return receipt requested, first class postage
prepaid (a "Mailing"), upon receipt of courier delivery or the third day
following a Mailing, addressed as follows (or at such other address as the
addressed party may have substituted by notice pursuant to this Section 12.5):
(a) If to LLC: TMCT II, LLC
c/o The Times Mirror Company
Managing Member
Times Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: General Counsel
(b) If to TMC: The Times Mirror Company
Times Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
(c) If to the Trusts: Xxxxxxxx Trust No. 1 and/or
Xxxxxxxx Trust No. 2
000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Trustee
and
Xxxxxxx Xxxxxxxxx, Xx., Trustee
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxxxxx, Xx., Esq.
12.6 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of California as applied
to contracts between California residents made and to be performed entirely
within the State of California.
12.7 ATTORNEYS' FEES. If any party to this Agreement shall bring any
action, suit, counterclaim, appeal or arbitration for any relief against another
party to enforce the terms hereof
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or to declare rights hereunder (collectively, an "Action"), the losing party
shall pay to the prevailing party a reasonable sum for attorneys' fees and costs
incurred in bringing and prosecuting such Action and/or enforcing any judgment,
order, ruling, or award. For the purposes of this paragraph, attorneys' fees
shall include, without limitation, fees incurred in discovery, postjudgment
motions and collection actions, and bankruptcy litigation. "Prevailing party"
within the meaning of this paragraph includes, without limitation, a party who
agrees to dismiss an Action on another party's payment of the sums allegedly due
or performance of the covenants allegedly breached, or who obtains substantially
the relief sought by it.
12.8 RULES OF CONSTRUCTION.
12.8.1 HEADINGS. The section headings in this Agreement are
inserted only as a matter of convenience, and in no way define, limit, or extend
or interpret the scope of this Agreement or of any particular section.
12.8.2 TENSE AND CASE. Throughout this Agreement, as the
context may require, references to any word used in one tense or case shall
include all other appropriate tenses or cases.
12.8.3 SEVERABILITY. The validity, legality or enforceability
of the remainder of this Agreement will not be affected even if one or more of
the provisions of this Agreement will be held to be invalid, illegal or
unenforceable in any respect.
12.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall constitute an original copy
hereof, but all of which together shall constitute one agreement.
12.10 EXPENSES. Except as otherwise set forth herein, each party shall
bear its own expenses in connection with this Agreement and the transactions
contemplated hereby.
12.11 CONSTRUCTION OF AGREEMENT. No party hereto, nor its respective
counsel, shall be deemed the drafter of this Agreement for purposes of
construing the provisions of this Agreement, and all provisions of this
Agreement shall be construed in accordance with their fair meaning, and not
strictly for or against any party hereto.
12.12 CONSENT TO JURISDICTION AND FORUM SELECTION. The parties hereto
agree that all actions or proceedings arising in connection with this Agreement
shall be tried and litigated exclusively in the State and Federal courts located
in the County of Los Angeles, State of California. The aforementioned choice of
venue is intended by the parties to be mandatory and not permissive in nature,
thereby precluding the possibility of litigation between the parties with
respect to or arising out of this Agreement in any jurisdiction other than that
specified in this paragraph. Each party hereby waives any right it may have to
assert the doctrine of forum non conveniens or similar doctrine or to object to
venue with respect to any proceeding brought in accordance with this paragraph,
and stipulates that the State and Federal courts located in the County of Los
Angeles, State of California shall have personal jurisdiction and venue over
each of them for the purpose of litigating any dispute, controversy, or
proceeding arising out of or
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related to this Agreement. Each party hereby authorizes and accepts service of
process sufficient for personal jurisdiction in any action against it as
contemplated by this paragraph by registered or certified mail, return receipt
requested, postage prepaid, to its address for the giving of notices as set
forth in this Agreement.
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IN WITNESS WHEREOF, this Contribution Agreement has been duly executed
and delivered by the duly authorized officers of the parties hereto as of the
date first above written.
THE TIMES MIRROR COMPANY
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
and Controller
EAGLE NEW MEDIA INVESTMENTS, LLC
By: The Times Mirror Company, Manager
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
and Controller
EAGLE PUBLISHING INVESTMENTS, LLC
By: The Times Mirror Company, Manager
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
and Controller
FORTIFICATION HOLDINGS CORPORATION
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
WICK HOLDINGS CORPORATION
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
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TMCT II, LLC
By: THE TIMES MIRROR COMPANY, its
Managing Member
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
and Controller
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XXXXXXXX TRUST NO. 1
By: /s/ XXXXXXXXX XXXXXXX XXXXXXX
-------------------------------------
Xxxxxxxxx Xxxxxxx Xxxxxxx,
as trustee of Xxxxxxxx Trust No. 1
under Trust Agreement
dated June 26, 1935
By: /s/ XXXXX XXXXXXXX
-------------------------------------
Xxxxx Xxxxxxxx, as trustee of
Xxxxxxxx Trust No. 1 under Trust
Agreement dated June 26, 1935
By: /s/ XXXXXXX XXXXXXXXX, XX.
-------------------------------------
Xxxxxxx Xxxxxxxxx, Xx., as trustee of
Xxxxxxxx Trust No. 1 under Trust
Agreement dated June 26, 1935
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxxxx, as trustee of
Xxxxxxxx Trust No. 1 under Trust
Agreement dated June 26, 1935
By: /s/ XXXXXXX XXXXXXXX FROST
-------------------------------------
Xxxxxxx Xxxxxxxx Xxxxx, as trustee of
Xxxxxxxx Trust No. 1 under Trust
Agreement dated June 26, 1935
By: /s/ XXXXXXX XXXXXX
-------------------------------------
Xxxxxxx Xxxxxx, as trustee of
Xxxxxxxx Trust No. 1 under Trust
Agreement dated June 26, 1935
By: /s/ XXXX X. XXXX
-------------------------------------
Xxxx X. Xxxx, as trustee of Xxxxxxxx
Trust No. 1 under Trust Agreement
dated June 26, 1935
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XXXXXXXX TRUST NO. 2
By: /s/ XXXXXXXXX XXXXXXX XXXXXXX
-------------------------------------
Xxxxxxxxx Xxxxxxx Xxxxxxx, as trustee
of Xxxxxxxx Trust No. 2 under Trust
Agreement dated June 26, 1935
By: /s/ XXXXX XXXXXXXX
-------------------------------------
Xxxxx Xxxxxxxx, as trustee of
Xxxxxxxx Trust No. 2 under Trust
Agreement dated June 26, 1935
By: /s/ XXXXXXX XXXXXXXXX, XX.
-------------------------------------
Xxxxxxx Xxxxxxxxx, Xx., as trustee of
Xxxxxxxx Trust No. 2 under Trust
Agreement dated June 26, 1935
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxxxx, as trustee of
Xxxxxxxx Trust No. 2 under Trust
Agreement dated June 26, 1935
By: /s/ XXXXXXX XXXXXXXX FROST
-------------------------------------
Xxxxxxx Xxxxxxxx Xxxxx, as trustee of
Xxxxxxxx Trust No. 2 under Trust
Agreement dated June 26, 1935
By: /s/ XXXXXXX XXXXXX
-------------------------------------
Xxxxxxx Xxxxxx, as trustee of
Xxxxxxxx Trust No. 2 under Trust
Agreement dated June 26, 1935
By: /s/ XXXX X. XXXX
-------------------------------------
Xxxx X. Xxxx, as trustee of Xxxxxxxx
Trust No. 2 under Trust Agreement
dated June 26, 1935
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