Fulfillment Agreement - New York Times Co., Family Circle Inc., and Gruner + Jahr Printing and Publishing Co.
FULFILLMENT AGREEMENT
This FULFILLMENT AGREEMENT (hereinafter referred to as this
"Fulfillment Agreement"), executed on and effective as of the 26th day
of July, 1994, by and among THE NEW YORK TIMES COMPANY, a
corporation organized and existing under the laws of the State of New
York, THE FAMILY CIRCLE, INC., a corporation organized and existing
under the laws of the State of Iowa (The New York Times Company and
The Family Circle, Inc. hereinafter collectively referred to as
"Seller") and GRUNER + JAHR PRINTING AND PUBLISHING CO., a general
partnership organized and existing under the laws of the State of
Delaware and having its principal offices at 685 Third Avenue, New
York, New York 10017, acting through its publishing division, Gruner +
Jahr USA Publishing (hereinafter referred to as "Buyer").
W I T N E S S E T H:
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WHEREAS, Buyer and Seller have executed an Asset Purchase
Agreement, dated as of June 17, 1994, (the "Asset Purchase Agreement")
providing, inter alia, for the sale by Seller and the purchase by
Buyer of certain assets with regard to the publication of certain
magazines, commonly referred to as the New York Times Women's
Magazines Group (the "Women's Magazines"); and
WHEREAS, Section 11.9 of the Asset Purchase Agreement requires
that Seller and Buyer enter into an agreement whereby Buyer agrees to
act as a representative, on behalf of Seller, to discharge all of
Seller's obligations and liabilities for the fulfillment of current
subscriptions to the Women's Magazines, to the extent such obligations
and liabilities remain unperformed or unfulfilled on, or by their
terms continue in effect after the Closing Date, substantially
consistent with Seller's past practices (the "Subscription
Obligations").
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements hereinafter set forth, Seller and
Buyer do hereby mutually covenant and agree as follows:
Section 1. Definitions.
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Unless otherwise defined in this Fulfillment Agreement, all
capitalized terms used herein shall have the same meanings as ascribed
to them in the Asset Purchase Agreement.
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Section 2. Subscription Services.
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Buyer, as representative of Seller, shall discharge or cause to
be discharged all of the Subscription Obligations as and when such
obligations become due after the Closing Date.
Section 3. Term.
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This Fulfillment Agreement shall commence on the date first above
written and shall continue until the Subscription Obligations are
fully discharged.
Section 4. Price.
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Seller shall pay Buyer to discharge the Subscription Obligations
the lump sum of Forty-Eight Million Nine Hundred Twenty-Six Thousand
Dollars ($48,926,000), which shall be paid on the Closing Date, by
wire transfer, in immediately available funds.
Section 5. Force Majeure.
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If performance by Buyer of any of the services herein contracted
for is prevented or delayed by strikes, lockouts, fires, embargoes,
war or other outbreak of hostilities, acts of Federal, State, local or
other governmental agency, or by accident, machinery breakdowns,
occurring despite ordinary maintenance, delays of carriers or
supplies, public emergency, act of God or any other cause beyond the
reasonable control of Buyer, such delay or failure to perform shall
not be deemed a breach of this Fulfillment Agreement.
Section 6. General Provisions.
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6.1 Severability. Each and every provision of this Fulfillment
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Agreement is intended to be severable. If any provision of this
Fulfillment Agreement shall be declared invalid or unenforceable by a
decision or judgment of any court of competent jurisdiction, such
decision or judgment shall not affect (a) the validity or enfor-
ceability of the other provisions of this Fulfillment Agreement in
that or any other jurisdiction, or (b) the validity or enforceability
of such provision, or of any other provision of this Fulfillment
Agreement, in any other jurisdiction. The parties hereto shall
negotiate in good faith to replace the invalid or unenforceable
provision with a provision which shall be valid and enforceable under
such decision or judgment and which, insofar as possible, will achieve
the economic results sought to be achieved by the invalid or
unenforceable provision; however, if such replacement provision cannot
be agreed upon or enforced, then this Fulfillment Agreement shall be
interpreted and construed in all respects as if such invalid or
unenforceable provision had never been a part of this Fulfillment
Agreement.
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6.2 Amendment. This Fulfillment Agreement may not be changed,
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modified, altered, amended, supplemented, cancelled, superseded,
rescinded or terminated except by and in accordance with the terms of,
a writing signed by both parties hereto and delivered to each of them
in duplicate original counterparts.
6.3 No Implied Waiver. No consent to, or waiver, discharge or
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release of, any provision, breach, failure or default in, of or under
this Fulfillment Agreement shall be valid or effective unless in
writing and signed by the party giving such consent or waiver or
granting such discharge or release, and no specific consent, waiver,
discharge or release shall constitute or be deemed or construed as a
consent, waiver, discharge or release with respect to any other
provision, breach, failure or default, whether or not of similar
nature. Failure on the part of either party hereto to insist in any
instance upon strict, complete and timely performance by the other
party hereto of any term, provision, obligation or duty of or under
this Fulfillment Agreement, to exercise any of its rights or
privileges under this Fulfillment Agreement, to complain of any act or
failure to act of the other, or to declare such other party in breach
or default hereof or hereunder, irrespective of how long such failure
continues, shall not constitute or be deemed or construed as a waiver
by such party of any of its rights under this Fulfillment Agreement or
otherwise.
6.4 Notices. Any notice, request, demand or other communication
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required or permitted to be given under this Fulfillment Agreement
shall be in writing and shall be deemed to have been given and
delivered as of the date delivered if delivered personally, by
overnight carrier or by telefax, or three (3) business days after
being mailed by registered or certified mail (postage prepaid, return
receipt requested) to the respective address or addresses here
following:
If to Seller:
THE NEW YORK TIMES COMPANY
229 West 43rd Street
New York, New York 10036
Attn: Laura J. Corwin, Secretary
Fax: (212) 556-1009
with a copy to:
THE NEW YORK TIMES COMPANY
229 West 43rd Street
New York, New York 10036
Attn: Kenneth A. Richieri, Assistant General Counsel
Fax: (212) 556-4634
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<PAGE>
If to Buyer:
GRUNER + JAHR PRINTING AND PUBLISHING CO.
Publishing Division
685 Third Avenue
New York, New York 10017
Attn.: John Heins, President
Fax: (212) 490-1214
with a copy to:
GRUNER + JAHR USA PUBLISHING
685 Third Avenue
New York, New York 10017
Attn: Yvette Miller, General Counsel
Fax: (212) 986-2548
or to such other address as any of the foregoing may give to the
others by like notice.
6.5 Captions. The captions at the headings of each Article and
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Section of this Fulfillment Agreement are for convenience of reference
only, and are in no way intended or to be used or applied to describe,
interpret, construe, define or limit the scope, extent, intent or
operation of this Fulfillment Agreement or of any term or provision
hereof.
6.6 Choice of Law. This Fulfillment Agreement shall be governed
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by, and the terms and provisions hereof and the rights and duties
created hereby shall be interpreted, construed and enforced in
accordance with, the Laws of the State of New York.
6.7 Remedies. Each of the rights and remedies of the parties
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hereto set forth in this Fulfillment Agreement shall be cumulative,
independent of each other, and severally enforceable. All of such
rights and remedies shall be in addition to, and not in lieu of, any
and all other rights and remedies available to the parties hereto at
law or in equity.
6.8 Binding Effect and Assignment. This Fulfillment Agreement
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and the rights and obligations of the parties hereto shall be binding
upon, and shall inure to the benefit of, the parties hereto and their
respective successors and permitted assigns, but this Fulfillment
Agreement shall not be assignable by either party hereto without the
prior written consent of the other party hereto.
6.9 Gender and Number. All references to, and each use of, the
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masculine gender in this Fulfillment Agreement shall also be deemed
references to, and a use of, the feminine and neuter genders unless
the context clearly requires otherwise. All references to,
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and each use of, the singular number in this Fulfillment Agreement
shall also be deemed references to, and a use of, the plural number
unless the context clearly requires otherwise.
6.10 Entire Agreement. This Fulfillment Agreement constitutes
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the entire agreement and understanding of the parties hereto with
respect to the matters set forth herein, and except for the Asset
Purchase Agreement, all prior negotiations, drafts and other writings,
and understandings relating to the subject matter of this Fulfillment
Agreement are merged herein and are superseded, nullified and
cancelled by this Fulfillment Agreement.
6.11 Construction. The terms and provisions of this Fulfillment
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Agreement and the wording used herein shall in all cases be
interpreted and construed simply in accordance with their fair
meanings and not strictly for or against either party hereto.
6.12 Third Party Beneficiaries. There are no third party
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beneficiaries of or in this Fulfillment Agreement or any of the terms
or provisions hereof or any of the rights, privileges, duties,
liabilities or obligations created hereby.
6.13 Counterparts. This Fulfillment Agreement may be executed
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and delivered in one or more counterparts, in the English language,
each of which shall be deemed to be an original, and all of which
taken together shall constitute one and the same instrument, and it
shall not be necessary, in proving the existence or contents of this
Fulfillment Agreement, to produce, refer to or account for (a) any
particular counterpart in preference to any other counterpart or
counterparts, or (b) more than one counterpart.
6.14 No Publicity. Neither party to this Fulfillment Agreement
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shall issue any press release or make any public announcement of any
kind concerning the existence of contents of this Fulfillment
Agreement or the transactions contemplated hereby without the prior
written consent thereto of the other party.
6.15 Independent Contractor. This Fulfillment Agreement does not
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constitute and shall not be construed as constituting a partnership or
joint venture between the parties. Neither party shall have any right
to obligate or bind the other party in any manner other than as
specifically provided herein, and nothing herein contained shall give,
or is intended to give, any rights of any kind to any third persons.
6.16 Definitions. Unless otherwise defined in this Fulfillment
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Agreement, all capitalized terms used herein shall have the same
meanings as ascribed to them in the Asset Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have affixed their
signatures as of the day and year first above written.
SELLER:
THE NEW YORK TIMES COMPANY
By: ___________________________
Name:
Title:
THE FAMILY CIRCLE, INC.
By: ___________________________
Name:
Title:
BUYER:
GRUNER + JAHR PRINTING AND PUBLISHING CO.
By: ___________________________
Name:
Title:
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