Amended and Restated Partnership Agreement For Texas-New Mexico Newspapers Partnership A Delaware General Partnership By and Between Gannett Texas L.P. And TNP Publishing, LLC December 25, 2005
Exhibit 10.1
Amended and Restated Partnership Agreement
For
Texas-New Mexico Newspapers Partnership
A Delaware General Partnership
By and Between
Gannett Texas L.P.
And
TNP Publishing, LLC
December 25, 2005
TABLE OF CONTENTS
ARTICLE I DEFINITIONS | 2 | |||||
ARTICLE II THE PARTNERSHIP | 8 | |||||
2.1
|
Formation | 8 | ||||
2.2
|
Name | 8 | ||||
2.3
|
Business Purpose | 8 | ||||
2.4
|
Registered Office and Agent | 9 | ||||
2.5
|
Term | 9 | ||||
2.6
|
Principal Place of Business | 9 | ||||
2.7
|
The Partners | 9 | ||||
2.8
|
Fiscal Year | 10 | ||||
2.9
|
Representations and Warranties of the Parties | 10 | ||||
ARTICLE III CAPITAL STRUCTURE AND CONTRIBUTIONS | 10 | |||||
3.1
|
Capital Contributions | 10 | ||||
3.2
|
No Other Mandatory Capital Contributions | 12 | ||||
3.3
|
No Right of Withdrawal | 12 | ||||
3.4
|
Loans by Third Parties | 13 | ||||
ARTICLE IV CAPITAL ACCOUNTS; ALLOCATION OF PROFITS AND LOSSES | 13 | |||||
4.1
|
Capital Accounts | 13 | ||||
4.2
|
Book Allocation | 13 | ||||
4.3
|
Tax Allocations | 14 | ||||
ARTICLE V DISTRIBUTIONS | 15 | |||||
5.1
|
Distributions | 15 | ||||
ARTICLE VI ACCOUNTING AND REPORTS | 16 | |||||
6.1
|
Books and Records | 16 | ||||
6.2
|
Reports to Partners | 17 | ||||
6.3
|
Annual Tax Returns | 17 | ||||
6.4
|
Actions in Event of Audit | 18 | ||||
6.5
|
Tax Elections | 19 | ||||
ARTICLE VII ACTIONS BY PARTNERS | 19 | |||||
7.1
|
Meetings | 19 | ||||
7.2
|
Actions by the Partners | 19 | ||||
ARTICLE VIII MANAGEMENT | 19 | |||||
8.1
|
The Management Committee | 19 | ||||
8.2
|
Removal of Members; Vacancies | 20 | ||||
8.3
|
Meetings of the Management Committee; Notice | 20 | ||||
8.4
|
Quorum | 21 | ||||
8.5
|
Voting | 21 | ||||
8.6
|
Certain Matters Requiring a Unanimous Vote of the Management Committee | 21 | ||||
8.7
|
Action by Consent | 23 | ||||
8.8
|
Executive Officers | 24 |
i
8.9
|
Provision of Services to Partnership by MediaNews | 24 | ||||
8.10
|
Partnership Change in Control | 27 | ||||
8.11
|
MediaNews Change in Control | 27 | ||||
ARTICLE IX TRANSFER OF PARTNERSHIP INTERESTS; ADDITIONAL AND SUBSTITUTE PARTNERS | 30 | |||||
9.1
|
Prohibited Transfers | 30 | ||||
9.2
|
Permitted Transfers by Partners | 30 | ||||
9.3
|
Substitute Partner | 31 | ||||
9.4
|
Involuntary Withdrawal by a Partner | 31 | ||||
9.5
|
Right of First Refusal for Sale of Partnership Interests | 31 | ||||
9.6
|
Tag-Along Rights Regarding Sales of Partnership Interests | 33 | ||||
9.7
|
MediaNews Drag-Along Rights | 35 | ||||
9.8
|
Admission of Additional Partners | 35 | ||||
9.9
|
Acknowledgment of Pledge of Interests | 36 | ||||
9.10
|
Rights of First Refusal with Respect to Certain Assets Offered to the Partners | 36 | ||||
ARTICLE X DISSOLUTION AND LIQUIDATION | 37 | |||||
10.1
|
Dissolution | 37 | ||||
10.2
|
Election to Continue the Business | 38 | ||||
10.3
|
Closing of Affairs | 38 | ||||
ARTICLE XI AMENDMENT TO AGREEMENT | 40 | |||||
ARTICLE XII INDEMNIFICATION | 40 | |||||
12.1
|
General | 40 | ||||
12.2
|
Indemnification Obligations | 40 | ||||
12.3
|
Exclusive Remedy | 43 | ||||
12.4
|
Third Party Claims | 43 | ||||
12.5
|
Other Indemnification Claims | 44 | ||||
ARTICLE XIII GENERAL PROVISIONS | 45 | |||||
13.1
|
Mediation | 45 | ||||
13.2
|
Notices | 46 | ||||
13.3
|
Confidentiality | 46 | ||||
13.4
|
Entire Agreement, Etc. | 47 | ||||
13.5
|
Construction Principles | 47 | ||||
13.6
|
Counterparts | 47 | ||||
13.7
|
Severability | 47 | ||||
13.8
|
Expenses | 47 | ||||
13.9
|
Governing Law and Venue | 48 | ||||
13.10
|
Binding Effect | 48 | ||||
13.11
|
Additional Documents and Acts | 48 | ||||
13.12
|
No Third Party Beneficiary | 49 | ||||
13.13
|
Waiver of Jury Trial | 49 |
Exhibit A
— Form of Amended and Restated Partnership Agreement Pursuant to Section 8.11
ii
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
FOR
TEXAS-NEW MEXICO NEWSPAPERS PARTNERSHIP
A DELAWARE GENERAL PARTNERSHIP
THIS AMENDED AND RESTATED PARTNERSHIP AGREEMENT of Texas-New Mexico Newspapers Partnership, a
Delaware general partnership (the “Partnership”) is effective as of the 25th day of December, 2005
by and among Gannett Texas L.P., a Delaware limited partnership (“Gannett”) and TNP Publishing, LLC
(f/k/a New Mexico-Texas MediaNews LLC), a Delaware limited liability company (“MediaNews”), and
each other individual or business entity who may hereafter be admitted from time to time as a
Partner hereunder. Gannett and MediaNews and any other individual and/or business entity
subsequently admitted shall be known as and referred to as “Partners” and individually as a
“Partner”.
RECITALS
WHEREAS, the Partnership was formed as a general partnership under the laws of the State of
Delaware on March 17, 2003;
WHEREAS, the Partnership Agreement entered into by and among Gannett Texas L.P. and New
Mexico-Texas MediaNews LLC dated as of March 17, 2003 was amended and restated by the parties as of
March 21, 2003;
WHEREAS, this Amended and Restated Partnership Agreement amends and restates the Amended and
Restated Partnership Agreement entered into by and among Gannett Texas L.P. and New Mexico-Texas
MediaNews LLC dated as of March 21, 2003;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter expressed, the Partners
agree as follows:
ARTICLE I
DEFINITIONS
“Act” means the Delaware Revised Uniform Partnership Act, as amended.
“Additional Capital Contributions” means any additional Capital Contributions made
pursuant to Section 3.1(b) of this Agreement.
“Additional Contribution Terms” shall have the meaning ascribed to it in Section
3.1(b) of this Agreement.
“Additional Partner” means any additional person admitted to the Partnership, pursuant
to Section 9.8 of this Agreement, but does not include a Substitute Partner.
“Affiliate” means any person controlled by, controlling, or under common control with
the entity in question.
“Amended and Restated Partnership Agreement” means the form of Amended and Restated
Partnership Agreement of the Partnership referenced in Section 8.11 of this Agreement and attached
hereto as Exhibit A.
“Book Value” means, with respect to any asset of the Partnership, the adjusted basis
of such asset as of the relevant date for federal income tax purposes, except as follows:
(i) the initial Book Value of any asset contributed by a Partner to the Partnership shall be
the fair market value of such asset;
(ii) the Book Values of all Partnership assets (including intangible assets such as goodwill)
shall be adjusted to equal their respective fair market values as of the following times:
(A) the acquisition of an additional Interest in the Partnership by any new or existing
Partner in exchange for more than a de minimis Capital Contribution;
(B) the distribution by the Partnership to a Partner of more than a de minimis
amount of money or Partnership property as consideration for an Interest in the Partnership; and
(C) the liquidation of the Partnership within the meaning of Regulation section 1.704-1(b)(2)
(iv)(f)(5)(ii);
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(iii) the Book Value of the Partnership assets shall be increased (or decreased) to reflect
any adjustments to the adjusted basis of such assets pursuant to Code section 734(b) or Code
section 743(b), but only to the extent that such adjustments are taken into account in determining
Capital Accounts pursuant to Regulation section 1.704-1(b)(2)(iv)(m); and
(iv) if the Book Value of an asset has been determined or adjusted pursuant to subsection (i),
(ii) or (iii) above, such Book Value shall thereafter be adjusted by the Depreciation taken into
account with respect to such asset for purposes of computing Profits and Losses and other items
allocated pursuant to Section 4.2.
The foregoing definition of Book Value is intended to comply with the provisions of Regulation
section 1.704–1(b)(2)(iv) and shall be interpreted and applied consistently therewith.
“Business Day” means any day (other than a day which is a Saturday, Sunday or legal
holiday for the United States government).
“Business Plan” is defined in Section 8.1.
“Capital Account” means, for each Partner, the capital account maintained by the
Partnership for such Partner as described in Section 4.1.
“Capital Contribution” means the amount of money and the other property (net of any
liabilities that the Partnership is considered to assume, or take subject to, pursuant to Code
Section 752, except to the extent such liabilities are in fact discharged by the Partners
contributing such property) which is contributed by a Partner to the Partnership pursuant to
Article III hereof, including Additional Capital Contributions.
“Capital Expenditure” means all expenditures of a capital nature, including those in
relation to the construction of enlargements or additions to any of the assets or facilities owned
by the Partnership or York Limited Partnership or for any other acquisitions or improvements
thereto of a capital nature, including, without limitation, expenditures for materials, labor,
equipment permits, consulting fees, accounting and legal fees, insurance costs, contractors’ fees,
and land and easement costs.
“Chairman” is defined in Section 8.1(a).
“Chief Executive Officer” is defined in Section 8.8(a).
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“Chief Financial Officer” is defined in Section 8.8(b).
“Closing Date” means December 25, 2005.
“Code” means the Internal Revenue Code of 1986, as amended.
“Contribution Agreement” means those contribution agreements described in Section 3.1
of the Agreement.
“Depreciation” means, for each Fiscal Year or part thereof, an amount equal to the
depreciation, amortization, or other cost recovery deduction allowable for federal income tax
purposes with respect to an asset for such Fiscal Year or part thereof, except that if the Book
Value of an asset differs from its adjusted basis for federal income tax purposes, the
depreciation, amortization or other cost recovery deduction for such Fiscal Year or part thereof
shall be an amount which bears the same ratio to such Book Value as the federal income tax
depreciation, amortization or other cost recovery deduction for such Fiscal Year or part thereof
bears to such adjusted tax basis. If such asset has a zero adjusted tax basis, the depreciation,
amortization or other cost recovery deduction for each Fiscal Year shall be determined under a
method reasonably selected by the Tax Matters Partner.
“Dissolution Committee” means the committee established pursuant to Section 8.11(c)
hereof to serve as the liquidator of the Partnership and to manage the dissolution of the
Partnership.
“Executive Officers” means the following officers of the Partnership: its president,
Chief Executive Officer, Chief Financial Officer and any other individual who would be an
“executive officer” of the Partnership as determined in accordance with Rule 3b-7 promulgated under
the Securities Exchange Act of 1934.
“Fair Market Value of the Offered Interest” is defined in Section 9.5(f)(ii).
“Fiscal Year” means the fiscal year of the Partnership as defined in Section 2.8
hereof.
“Formation Date” is defined in Section 2.5 of this Agreement.
“GAAP” means United States generally accepted accounting principles, as in effect from
time to time.
4
“Gannett” means Gannett Texas L.P., a Delaware limited partnership, its successors
and assigns.
“Gannett Claim Notice” is defined in Section 12.2 of this Agreement.
“GANSAT” means Gannett Satellite Information Network, Inc., a Delaware corporation,
its successors and assigns.
“Indebtedness” means those obligations for borrowed money which were assumed by the
Partnership as a consequence of, or to which property of the Partnership was subject immediately
following the Partner’s initial Capital Contributions (within the meaning of Section 3.1(a)
hereof), with the exception of any of the foregoing such obligations which are included in the
Working Capital Statements (as defined in the Contribution Agreement).
“Interest” means, with respect to any Partner at any time, such Partner’s entire
beneficial ownership interest in the Partnership and its property at such time, including such
Partner’s Capital Account, voting rights (if any), and right to share in Profits and Losses, all
items of income, gain, loss, deduction and credit, distributions and all other benefits of the
Partnership as specified in this Agreement, together with such Partner’s obligations to comply with
all of the terms of this Agreement.
“Involuntary Transfer” shall have the meaning ascribed thereto in Section 9.4.
“Majority” means the Partners having a majority of the Percentage Interests.
“MediaNews Change in Control” means the occurrence of any transaction as a result of
which (i) MNG and its Affiliates and Permitted Holders no longer directly or indirectly hold in the
aggregate more than 50% of the voting interests of each of TNP Publishing, LLC, Northwest New
Mexico Publishing Company and MediaNews Group Interactive, Inc., or (ii) the sale or other
disposition of all or substantially all of the assets of MNG or any of its Affiliates listed in
clause (i) except for sales or other dispositions to MNG or any of its Affiliates and/or Permitted
Holders, or (iii) a majority of the voting interests of MNG are acquired by a person or entity (or
group of persons and entities acting in concert), other than Permitted Holders, in each case of
clauses (i) or (ii), without the prior written consent of Gannett, not to be unreasonably withheld.
No such approval shall be deemed to have been withheld unreasonably if the proposed transferee (or
those controlling the proposed transferee) does not have experience in and a good reputation within
the newspaper publishing industry.
5
“MNG” means MediaNews Group, Inc., a Delaware corporation, its successors and assigns.
“MNG Notice” means notice from MNG of a proposed MediaNews Change in Control pursuant
to Section 8.11.
“Partnership Change in Control” means (i) any occurrence whereby the Percentage
Interests directly or indirectly owned by MNG and its Affiliates and Permitted Holders become less
than fifty percent (50%) of the total Percentage Interest of all Partners, after giving effect to
any reduction in MediaNews’ Percentage Interest occasioned by Gannett’s availing itself of the
remedy set forth in Section 12.2 of this Agreement and any additional capital contribution of
newspaper assets by MediaNews pursuant to Section 12.2, or (ii) any pledgee, collateral assignee or
Transferee (other than MNG and its Affiliates) of all or any portion of the Interest of MNG and its
Affiliates, without the prior written consent of Gannett, seeks to be admitted as a Substitute
Partner or to exercise any voting rights or other powers granted to MediaNews (including with
respect to members of the Management Committee appointed by MediaNews) in this Agreement.
“Percentage Interest” means, for each Partner, such Partner’s percentage interest as
set forth in Section 3.1 hereof as such may be adjusted from time to time in accordance with this
Agreement.
“Permitted Holders” means (i) each of Xxxxxxx Xxxx Xxxxxxxxx, Xxxxxxx X. Xxxxxxx,
Xxxxxx X. Xxxxxxx, XX and their respective spouses, ancestors, siblings, descendants (including
children or grandchildren by adoption) and the descendants of any of their siblings; (ii) in the
event of the incompetence or death of any of the persons described in clause (i), such person’s
estate, executor, administrator, committee or other personal representative, in each case who at
any particular date shall beneficially own or have the right to acquire, directly or indirectly,
capital stock of MNG; (iii) any trust created for the benefit of the persons described in clause
(i) or (ii) or any trust for the benefit of any such trust; or (iv) any person controlled by any of
the persons described in clause (i), (ii) or (iii). For purposes of this definition, “control,” as
used with respect to any person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such person, whether through
ownership of voting securities or by contract or otherwise.
“Profits” and “Losses” means, for each Fiscal Year or part thereof, the
taxable income or loss of the Partnership for such Fiscal Year determined in accordance with Code
section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be
stated separately pursuant to Code section 703(a)(1) shall be included in taxable income or loss),
with the following adjustments:
6
(i) any income of the Partnership that is exempt from federal income tax shall be added to
such taxable income or loss;
(ii) any expenditures of the Partnership described in Code section 705(a)(2)(B) or treated as
such pursuant to Regulation section 1.704-1(b)(2)(iv)(i) shall be subtracted from such
taxable income or loss;
(iii) any Depreciation for such Fiscal Year or part thereof shall be taken into account in
lieu of the depreciation, amortization and other cost recovery deductions taken into account in
computing such taxable income or loss;
(iv) gain or loss resulting from any disposition of Partnership property with respect to which
gain or loss is recognized for federal income tax purposes shall be computed with reference to the
Book Value of the property disposed of, rather than the adjusted tax basis of such property;
(v) in the event the Book Value of any Partnership asset is adjusted pursuant to section (ii)
or (iii) of the definition of Book Value hereof, the amount of such adjustment shall be taken into
account as gain or loss from the disposition of such assets for purposes of computing Profits and
Losses; and
(vi) such taxable income or loss shall be deemed not to include any income, gain, loss,
deduction or other item thereof allocated pursuant to Section 4.3.
“Regulations” means the income tax regulations promulgated under the Code by the
Department of the Treasury, as such regulations may be amended from time to time.
“Substitute Partner” means a person who has become a substitute Partner pursuant to
Section 9.3 hereof, but does not include an Additional Partner.
“Transfer” means any sale, assignment, gift, alienation, or other disposition, whether
voluntary or by operation of law (other than a transfer which may arise by reason of death or
incapacity), of an interest or any portion thereof, but shall not include any pledge, hypothecation
or granting of a security interest in such Interest.
“Transferee” means a purchaser, transferee, assignee (other than any secured party,
pledgee or collateral assignee) or any other person who takes, in accordance with the terms of this
Agreement, an Interest in the Partnership.
“York Indemnity Claim” is defined in Section 12.2 of this Agreement.
“York Joint Operating Agreement” means the Amended and Restated Joint Operating
Agreement, dated as of April 30, 2004, by and among York Newspapers, Inc., York Newspapers
Holdings, Inc., York Limited Partnership and York Dispatch Publishing Company, LLC.
7
“York Limited Partnership Agreement” means the Limited Partnership Agreement, dated
as of April 30, 2004, by and among York Newspapers, Inc., York Newspapers Holdings, Inc. and York
Dispatch Publishing Company, LLC.
“York Limited Partnership” means York Newspapers Holdings, L.P., a Delaware limited
partnership, its successors and assigns, and its subsidiaries, The York Newspaper Company, a
Pennsylvania general partnership, York Newspapers Holdings, LLC, York Dispatch LLC and York Daily
Record – York Sunday News LLC, their successors and assigns.
“York LLC” means York Partnership Holdings LLC, a Delaware limited liability company,
its successors and assigns. As of the date hereof, York LLC is a wholly-owned subsidiary of the
Partnership and the sole general partner of York Limited Partnership. Northwest New Mexico
Publishing Company, successor to Pennsylvania Newspapers Publishing, Inc., is the sole manager of
York LLC.
“York Partnership Interest” has the same meaning as defined in Section 2.5(a) of the
Contribution Agreement.
ARTICLE II
THE PARTNERSHIP
2.1 Formation. The parties hereto have formed a partnership in accordance with the further
terms and provisions hereof. Each of the Partners shall execute or cause to be executed from time
to time all other instruments, certificates, notices and documents, and shall do or cause to be
done all such filing, recording, publishing and other acts, in each case, as may be necessary or
appropriate from time to time to comply with all applicable requirements for the formation and/or
operation and, when appropriate, termination of a partnership in the State of Delaware and all
other jurisdictions where the Partnership shall desire to conduct its business.
2.2 Name. The name of the Partnership shall be “Texas-New Mexico Newspapers Partnership”
and its business shall be carried on in this name with such variations and changes as the
Management Committee, in its sole judgment, deems necessary or appropriate to comply with the
requirements of the jurisdictions in which the Partnership’s operations are conducted.
2.3 Business Purpose. The purpose of the Partnership is to carry on any lawful business and to engage in any lawful
act or activity for which a partnership may be formed under the laws of the State of Delaware;
provided, however, that the business of the Partnership shall, without the
unanimous consent of the Management Committee, be limited to activities involving the ownership,
operation, and publication (in printed and electronic form) of newspapers and related publications
and business activities directly related or incidental to such ownership, operation and publication
including, without limitation, commercial printing, alternate distribution services and direct mail
activities.
8
2.4 Registered Office and Agent. The registered office of the Partnership in the State of
Delaware and its registered agent for service of process on the Partnership in the State of
Delaware shall be as determined by the Management Committee.
2.5 Term. The term of the Partnership commenced on March 17, 2003 (the “Formation Date”)
and shall continue until December 31, 2053 unless earlier dissolved and liquidated in accordance
with Article X hereof.
2.6 Principal Place of Business. The Partnership shall maintain its principal place of
business at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, or such other location or locations
as the Management Committee may from time to time select.
2.7 The Partners. The name and place of residence of each Partner is as follows:
NAME
|
RESIDENCE | |
Gannett Texas L.P.
|
c/o Gannett Co., Inc. | |
0000 Xxxxx Xxxxxx Xxxxx | ||
XxXxxx, XX 00000 | ||
TNP Publishing, LLC
|
c/o MediaNews Group, Inc, | |
0000 Xxxxxxxx, Xxxxx 0000 | ||
Xxxxxx, XX 00000 |
2.8 Fiscal Year. Unless the Tax Matters Partner shall otherwise determine in accordance with Section 706 of the
Code, the fiscal year of the Partnership shall end on June 30th of each calendar year.
2.9 Representations and Warranties of the Parties. Each of the parties represents and
warrants that:
(a) It is a limited partnership, limited liability company or corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization;
(b) It has all requisite power and authority to enter into this Agreement; the execution and
delivery by such party of this Agreement and the consummation by such party of the transactions
contemplated hereby have been duly authorized by all necessary partnership or corporate action on
the part of such party; and this Agreement has been duly and validly executed and delivered by such
party and constitutes (assuming the due and valid execution and delivery of this Agreement by the
other
9
parties), the legal, valid and binding obligation of each party, enforceable against each
party in accordance with its terms;
(d) The execution, delivery and performance by such party of this Agreement will not, as of
and after the Closing Date, result in a breach of any of the terms, provisions or conditions of any
agreement to which such party is a party which has a reasonable likelihood of materially and
adversely affecting the operations, properties or business of the Partnership or such party’s
obligations under this Agreement; and
(e) The execution and delivery by such party of this Agreement and the formation of the
Partnership does not require any filing by it with, or approval or consent of, any governmental
authority which has not already been made.
ARTICLE III
CAPITAL STRUCTURE AND CONTRIBUTIONS
3.1 Capital Contributions.
(a) Initial Contributions. Each of Gannett and MediaNews has made (or caused to be
made) a Capital Contribution to the Partnership as set forth in a contribution agreement among
Gannett, Las Cruces Publishing Company, Northwest New Mexico Publishing Company, Carlsbad
Publishing Company, and New Mexico – Texas MediaNews Group Interactive, Inc. and dated as of March
14, 2003 (the “Contribution Agreement”). Each of Gannett and MediaNews has made (or will cause to
be made) a Capital Contribution to the Partnership as set forth in a contribution agreement among
Gannett, MediaNews, Pennsylvania Newspapers Publishing Inc., MediaNews Group Interactive, Inc., MediaNews Group, Inc., TNP Publishing, LLC and the
Partnership and dated as of November 30, 2005 (also, for purposes of this Agreement, the
“Contribution Agreement”). As a result of such Capital Contributions, effective as of December 25,
2005, Gannett has (or will have) a Percentage Interest in the Partnership of 40.64%, and MediaNews
has (or will have) a Percentage Interest in the Partnership of 59.36%. Percentage Interests shall
not be adjusted on account of the payment of any sums, or the contribution of any property, treated
as a Capital Contribution without the unanimous consent of the Partners.
(b) Additional Capital Contributions; Interest; and Offset. At any time, and from
time to time after the Formation Date (i) the Management Committee, in its sole and absolute
discretion, by unanimous vote, or (ii) either the Chief Executive Officer or the Chief Financial
Officer, each in his sole and absolute discretion, may determine that the Partnership requires
additional capital contributions (the “Additional Capital Contributions”) and the amount, terms and
conditions thereof. Such Additional Capital Contributions will be used by the Partnership for such
activities as are designated by the Management Committee in its approval resolution, or as are
determined by the Chief Executive Officer or the Chief Financial Officer, as the case may be,
provided that the Additional Capital Contributions made pursuant to a
10
determination by the Chief Executive Officer or the Chief Financial Officer may only be used by the Partnership
to fund Capital Expenditures in accordance with the Business Plan which has been approved by the
Management Committee pursuant to Section 8.1. All Additional Capital Contributions will be made by
the Partners in proportion to their then-current Percentage Interests in the Partnership. In
addition, with the unanimous consent of the Management Committee, Additional Capital Contributions
may be obtained by the admittance of Additional Partners in accordance with Section 9.8. In the
event Additional Partners are admitted, the Percentage Interests of the existing and Additional
Partners shall be adjusted as determined by the Management Committee, voting unanimously. From the
date of the Management Committee’s, the Chief Executive Officer’s or the Chief Financial Officers’
determination, as the case may be, that an Additional Capital Contribution is required until it has
been paid, a Partner’s obligation to make that contribution shall accrue interest at a rate of 9%
per annum until the obligation to make the Additional Capital Contribution (and to pay all accrued
but unpaid interest, if any, with respect thereto) has been paid in full. All cash distributions
to which such Partner shall otherwise be entitled to receive pursuant to Section 5.1(a) hereof,
shall instead be retained by the Partnership and credited to the discharge of the obligation to
make such Additional Capital Contribution (and to pay all accrued but unpaid interest, if any, with
respect thereto). Any amounts so retained shall be treated as distributed to such Partner and,
first paid to the Partnership in the amount of the accrued interest and, second, with respect to
the remainder thereof, contributed to the Partnership as an Additional Capital Contribution on
behalf of the Partner owing such obligation.
(c) Capital Contributions Required Under Section 12.2; Interest; and Offset. As
provided in Section 12.2 of this Agreement, any Partner owing an indemnification obligation to the
Partnership arising under Article XII of this Agreement shall make a capital contribution in cash
or other immediately available funds in the amount of such obligation promptly upon the determination of such obligation. Furthermore,
from the date of the determination of such obligation until the date such capital contribution is
made in cash or other immediately available funds, the amount of such obligation shall accrue
interest owing to the Partnership at a rate of 9 per cent per annum, and until such obligation (and
all accrued interest, if any, with respect thereto) has been paid in full in cash or other
immediately available funds, all cash distributions to which a Partner shall otherwise be entitled
to receive pursuant to Section 5.1(a) hereof, shall instead be retained by the Partnership and
credited to the discharge of the obligation to make such capital contribution and to pay accrued
but unpaid interest. Any amounts so retained shall be treated as distributed to such Partner and,
first paid to the Partnership in the amount of the accrued interest and, second, with respect to
the remainder thereof, contributed to the Partnership as an additional capital contribution on
behalf of the Partner owing such obligation.
(d) Other Contributions. At any time during the term of this Agreement, any Partner
may offer to contribute to the Partnership as an additional capital contribution any newspapers,
mastheads or related assets owned by it that are located in the State of Texas, the State of New
Mexico or the Commonwealth of Pennsylvania. Should the Management Committee, by a unanimous vote,
agree to accept such
11
contribution, the Capital Account and, if determined by unanimous vote of the
Management Committee, as provided in Section 8.6 hereof, the Percentage Interest, of the
contributing Partner will be adjusted upward to reflect the fair market value of such contribution
(determined in accordance with the procedures set forth in Section 9.5(f)) and, if determined by
unanimous vote of the Management Committee, as provided in Section 8.6 hereof, the Percentage
Interest of the other Partners will be adjusted downward proportionately to reflect the increase in
the contributing Partner’s Percentage Interest.
3.2 No Other Mandatory Capital Contributions. Except as specified in Section 3.1(b),
Section 3.1(c) or Section 12.2, no Partner shall be obligated to make any Additional Capital
Contribution to the Partnership’s capital.
3.3 No Right of Withdrawal. No Partner shall have the right to withdraw any portion of
such Partner’s Capital Contributions to, or to receive any distributions from, the Partnership,
except as provided in Articles V, IX and X hereof.
3.4 Loans by Third Parties. Subject to the provisions of Section 8.6 hereof, the
Partnership may borrow funds or enter into other similar credit, guarantee, financing or
refinancing arrangements for any purpose from any Partner or from any person upon such terms as the Management Committee determines,
in its sole and absolute discretion, are appropriate.
ARTICLE IV
CAPITAL ACCOUNTS; ALLOCATION OF PROFITS AND LOSSES
4.1 Capital Accounts. Each Partner shall have a capital account (a “Capital Account”)
which account shall be (1) increased by the amount of (a) the Capital Contributions of such
Partner, (b) the allocations to such Partner of Profits and items of income or gain pursuant to
Section 4.2, and (c) any positive adjustment to such Capital Account by reason of an adjustment to
the Book Value of Partnership assets, and (2) decreased by the amount of (x) any cash and the Book
Value of any property (net of liabilities secured by such property that such Partner is considered
to assume or take subject to under Code section 752) distributed to such Partner, (y) the
allocation to such Partner of Losses and items of loss pursuant to Section 4.2, and (z) any
negative adjustment to such Capital Account by reason of an adjustment to the Book Value of
Partnership assets. In the event of a revaluation of the Book Value of Partnership assets, the
Partners’ Capital Accounts shall be adjusted in the same manner as if gain or loss had been
recognized on a sale of the assets at their new Book Value. The provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with Regulation section
1.704-1(b), and shall be interpreted and applied in a manner consistent with such Regulation.
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4.2 Book Allocation.
(a) In General. This Section 4.2 sets forth the general rules for book allocations of
Profits, Losses and similar items to the Partners as reflected in their Capital Accounts.
(b) Profits and Losses. Profits shall be allocated to the Partners in proportion to
their Percentage Interests. Losses shall be allocated to the Partners in proportion to their
Percentage Interests except that any interest expense or other deduction attributable to any
Indebtedness (other than any depreciation or amortization deductions attributable to property which
is contributed to the Partnership subject to such Indebtedness) and any deductions attributable to
any indemnity payments described in Section 12.2 shall be allocated to the Partner that contributed
property subject to such Indebtedness or such indemnity payment.
(c) Special Rules.
(i) Notwithstanding the general allocation rules set forth in Section 4.2(b), in the case
of
any deduction allocable to a “nonrecourse liability” (as that term is defined in Regulations
Section 1.704-2(b)(3)) and any deduction allocable to a “partner nonrecourse liability” (as that
term is defined in Regulations Section 1.704-2(b)(4)), and any minimum gain or partner minimum gain chargeback with respect thereto, shall
be subject to the rules applicable thereto and described in Regulations Section 1.704-2.
(ii) If in the opinion of independent tax counsel for the Partnership, it is necessary to
provide special allocation rules in order to avoid a significant risk that a material portion of
any allocation set forth in this Article IV would not be respected for federal income tax purposes,
the Partners shall negotiate in good faith any amendments to this Agreement as, in the opinion of
such counsel, are necessary or desirable, taking into account the interests of the Partners as a
whole and all other relevant factors, to avoid or reduce significantly such risk to the extent
possible without materially changing the amounts allocable and distributable to any Partner
pursuant to this Agreement.
(iii) If there is a change made, by unanimous vote of the Management Committee in accordance
with the provisions of Section 8.6 hereof, in any Partner’s share of the Profits, Losses or other
items of the Partnership during any Fiscal Year, allocations among the Partners shall be made in
accordance with their interests in the Partnership from time to time during such Fiscal Year in
accordance with Code section 706, using the closing-of-the-books method, except that Depreciation
with respect to assets not contributed by a Partner shall be deemed to accrue ratably on a daily
basis over the entire Fiscal Year during which the corresponding asset is owned by the Partnership.
(iv) Except as otherwise provided in Sections 4.2(b) and 4.3(b)(i), each item of income,
gain,
loss, and deduction and all items governed by Code
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section 702(a) shall be allocated among the Partners in proportion to the allocation of Profits, Losses and other items to the Partners
hereunder, provided that to the extent any gain recognized from any disposition of a Partnership
asset is treated as ordinary income because it is attributable to the recapture of any depreciation
or amortization, such ordinary income shall be allocated among the Partners in the same ratio as
the prior allocations of Profits, Losses or other items that included such depreciation or
amortization; in no event, however, shall any Partner be allocated ordinary income hereunder in
excess of the gain otherwise allocable to each Partner.
4.3 Tax Allocations.
(a) In General. Except as set forth in Section 4.3(b), allocations for tax purposes
of items of Profit, Loss and other items of income, gain, loss, deduction, credit and distribution
therefor, shall be made in the same manner as allocations for book purposes set forth in Section
4.2. All such allocations pursuant to Section 4.3(b) shall be considered made solely for purposes
of federal, state and local income taxes, and shall not affect or in any way be taken into account
in computing any Partner’s Capital Account or share of Profits, Losses, other items or gain,
deduction and distribution pursuant to any provision of this Agreement.
(b) Special Rules.
(i) Elimination of Book/Tax Disparities. In determining a Partner’s allocable share
of Partnership taxable income, the Partner’s allocable share of each item of Profits and Losses
shall be properly adjusted to reflect the difference between such Partner’s share of the adjusted
tax basis and the Book Value of Partnership assets used in determining such item under any method
adopted by the Tax Matters Partner and allowable under Code Section 704(c), provided, however, that
any deductions for depreciation or amortization attributable to property contributed to the
Partnership by a Partner shall be allocated to the Partner contributing such property. In the
event that the method for the allocation of depreciation or amortization deductions attributable to
contributed property described in the previous sentence is disallowed, then the Tax Matters Partner
shall make such compensating allocations of items including (notwithstanding the second sentence of
Section 4.3(a)) such book allocations as are intended to accomplish the same economic result.
(ii) Tax Credits. Any tax credits shall be allocated among the Partners in accordance
with Regulation section 1.704-1(b)(4)(ii), unless the applicable Code provision shall otherwise
require.
(c) Conformity of Reporting. The Partners are aware of the income tax consequences of
the allocations made or to be made pursuant to this Article 4 and Section 6.5 and hereby agree to
be bound by the provisions of this Article 4 and Section 6.5 in reporting their shares of
Partnership profits, gains, income, losses, deductions, credits and other items for income tax
purposes.
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ARTICLE V
DISTRIBUTIONS
5.1 Distributions.
(a) The Management Committee (or, at the Management Committee’s direction, the Executive
Officers of the Partnership), on or before the last day of each accounting period shall, in its or
their sole discretion, determine the amount of earnings (before depreciation and amortization) or
other Partnership funds available for distribution to Partners (whether as a distribution of
earnings or as loans or advances) and shall cause that amount to be distributed to the Partners
(subject to the provisions of Sections 3.1(b) and 3.1(c) hereof relating to the Partnership’s
retention of sums otherwise distributable to a Partner to discharge the obligation to make certain
capital contributions and pay certain accrued but unpaid interest). Except as otherwise provided
herein, all distributions shall be made in proportion to the Partners’ Percentage Interests. For
the purposes of this Section 5.1(a), any payment of principal or interest by the Partnership with
respect to Indebtedness shall be treated as distributed by the Partnership to the Partner that
transferred the property to the Partnership to which such Indebtedness relates, and then as
contributed to the Partnership by such Partner as an Additional Capital Contribution.
(b) If a distribution of cash is deemed made pursuant to Section 3.1(b), Section 3.1(c) or the
last sentence of Section 5.1(a) and, the distribution is not in proportion to the Partner’s
Percentage Interest, then the Management Committee shall adjust subsequent distributions so that
the cumulative distributions deemed made pursuant to Section 3.1(b), Section 3.1(c), the last
sentence of Section 5.1(a) and this Section 5.1(b) are, in the aggregate, in proportion to the
Partners’ Percentage Interests.
ARTICLE VI
ACCOUNTING AND REPORTS
6.1 Books and Records.
(a) The Partnership shall maintain or cause to be maintained at an office of the Partnership
this Agreement and all amendments thereto and full and accurate books of the Partnership showing
all receipts and expenditures, assets and liabilities, Profits and Losses, and all other books,
records and information required by the Act as necessary for recording the Partnership’s business
and affairs. The Partnership’s books and records shall be maintained in accordance with GAAP
except to the extent otherwise provided hereunder for purposes of maintaining Capital Accounts in
accordance with Article IV hereof and calculating the Profits or Losses charged or credited
thereto. Such documents, books and records shall be maintained at such office or such designated
successor office until the expiration of any applicable statutes of limitations for bringing a
claim in relation to such documents, books and records.
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(b) Each Partner shall have the right at reasonable times during usual business hours to
inspect the facilities of the Partnership, to observe the Partnership’s operations and to examine,
audit and make copies of the books of account and other books and records of the Partnership and
other books and records relating to the reserves, assets, liabilities and expenses of the
Partnership and expenditures by the Management Committee on behalf of the Partnership;
provided, however, that none of the foregoing activities shall be conducted in a
manner that unreasonably interferes with the Partnership’s operations or business or the Management
Committee’ management thereof. Such right may be exercised through any agent or employee of a
Partner designated in writing by it or by an independent public accountant, engineer, attorney or
other consultant so designated. The Partner making the request shall bear all expenses incurred in
any inspection, audit or examination made at such Partner’s behest. Should any inspection, audit
or examination disclose any errors or improper charges, the Management Committee shall make, or
cause to be made, appropriate adjustments therefor.
6.2 Reports to Partners.
(a) As soon as practicable and in any event within thirty (30) days after the end of each
accounting period, the Tax Matters Partner shall cause to be prepared and sent to each Partner unaudited statements of income, cash flow and changes in retained
earnings and Partners’ equity, for the accounting period in question and from the beginning of such
Fiscal Year to the end of such accounting period and an unaudited balance sheet as of the close of
such accounting period, all of which shall (i) be prepared in accordance with GAAP (except that
certain footnotes may be omitted) and (ii) set forth in each case in comparative form the figures
for the same accounting period for the previous Fiscal Year.
(b) As requested, the Tax Matters Partner shall provide to each Partner such information as
may be necessary for them to comply with applicable financial reporting requirements of any
competent governmental authorities or agencies or stock exchange on which the securities of any
such Partner are listed including, without limitation, the U.S. Securities and Exchange Commission
and such information regarding the financial position, business, properties or affairs of the
Partnership as a Partner may reasonably request.
(c) At the end of each accounting period and at the end of each Fiscal Year, the Tax Matters
Partner shall prepare or cause to be prepared and sent to each Partner reports of advertising
lineage, preprint distribution, circulation, cost and other statistical data in relation to the
Partnership’s business during the relevant period.
6.3 Annual Tax Returns.
(a) Subject to Section 8.10 hereof, effective on the Closing Date, MediaNews is hereby
designated the “Tax Matters Partner” for income tax purposes pursuant to Section 6231 of the Code
(or any corresponding provision of state or local
16
law) with respect to all taxable years of the Partnership and is authorized to do whatever is necessary to qualify as such. Subject to Section
8.10 hereof, if MediaNews is no longer a Partner or has resigned as the Tax Matters Partner, the
Tax Matters Partner shall be any Partner designated as such by a unanimous vote of the Partners,
and in the absence of a unanimous vote, as shall be determined under applicable provisions of the
Code and/or Regulations. The Tax Matters Partner shall, as soon as practicable under the
circumstances, inform each Partner of all tax-related matters that are, or have the reasonable
potential to become, material to the Partnership that come to its attention in its capacity as Tax
Matters Partner.
(b) The Tax Matters Partner shall prepare or cause to be prepared all tax returns required of
the Partnership. As soon as practicable after the end of each Fiscal Year, the Tax Matters Partner
shall furnish to each Partner such information in the possession of the Tax Matters Partner
requested by such Partner as necessary to timely fulfill such Partner’s federal, state, local and
foreign tax obligations, including Form K-1, or any similar form as may be required by the Code or
the Internal Revenue Service (the “IRS”) or, to the extent any such information is not in the Tax
Matters Partner’s possession, the Tax Matters Partner shall take all reasonable steps necessary to
have such information provided to the requesting Partner. No later than forty-five (45) business
days prior to filing with the IRS, the Tax Matters Partner shall deliver to each Partner for its review a complete copy of the federal income tax return proposed to be
filed by the Partnership. The Tax Matters Partner shall consider in good faith, consistent with
Section 6.3(c) hereof, any comments of the Partners with respect to such return made within thirty
(30) business days of sending the copy of such return. The Partners shall file their individual or
corporate returns in a manner consistent with the Partnership tax and information returns.
(c) The Tax Matters Partner shall, consistent with the Business Plan, use its best efforts to
do all acts and take whatever steps are required to maximize, in the aggregate, the federal, state
and local income tax advantages available to the Partnership and shall defend all tax audits and
litigation with respect thereto. The Tax Matters Partner shall maintain the books, records and tax
returns of the Partnership in a manner consistent with the acts, elections and steps taken by the
Partnership.
6.4 Actions in Event of Audit. If an audit of any of the Partnership’s tax returns shall
occur, each Partner shall, at the expense of the Partnership, participate in the audit. No Partner
may contest, settle or otherwise compromise assertions of the auditing agent which may be adverse
to the Partnership or any Partner without the approval of a unanimous Management Committee. The
Management Committee may, if it determines that the retention of accountants or other professionals
would be in the best interests of the Partnership, retain such accountants or other professionals,
to assist in any such audits. The Partnership shall indemnify and reimburse the Management
Committee for all expenses, including legal and accounting fees, claims, liabilities, losses, and
damages to the extent borne by the Management Committee, incurred in connection with any
administrative or judicial proceeding with respect to any audit of the Partnership’s tax returns.
The payment of all such expenses to which this
17
indemnification applies shall be made before any distributions are made to the Partners under Article V hereof. Neither the Tax Matters Partner,
nor any other person shall have any obligation to provide funds for such purpose. The taking of
any action and the incurring of any expense by the Management Committee in connection with any such
proceeding, except to the extent required by law, is a matter in the sole discretion of the
Management Committee.
6.5 Tax Elections. The Tax Matters Partner shall, in its reasonable discretion, determine
(x) whether or not to cause the Partnership to file an election under Code section 754 and the
Regulations thereunder and a corresponding election under the applicable section of state and local
law, (y) which method to apply to any asset of the Partnership under Section 704(c) of the Code
consistent with Section 4.3(b) hereof and whether or not to make any other elections provided for
under related state and local laws, and (z) any other tax elections.
ARTICLE VII
ACTIONS BY PARTNERS
7.1 Meetings. Meetings of the Partners shall be held at the place and time designated from
time to time unanimously by the Partners. The Partners may take action by the vote of Partners at
a meeting in person or by proxy, or without a meeting by written consent. In no instance where
action is authorized by written consent need a meeting of Partners be called or noticed.
7.2 Actions by the Partners. All actions required or permitted to be taken by the Partners
with respect to the Partnership require the vote or consent of all of the Partners.
ARTICLE VIII
MANAGEMENT
8.1 The Management Committee. The business and affairs of the Partnership shall be managed
under the direction and authority of a Management Committee. On or before July 31, 2003, the
Management Committee adopted an initial business plan for the Partnership, and thereafter the
Management Committee shall annually adopt a business plan (such initial or subsequent business
plan, the “Business Plan”).
(a) Number, Appointment and Term of Managers. The Management Committee shall be
comprised of five (5) members. Subject to Section 8.10 hereof, three (3) members shall be
appointed by MediaNews and two (2) members shall be appointed by Gannett. The managers shall act
solely as the agents of the Partners appointing them. Each manager shall serve at the pleasure of
the Partner appointing him and until his successor has been duly appointed, or until his
resignation or removal. In addition, the Chief Executive Officer shall be entitled to attend all
meetings and participate in all discussions of the Management Committee except as to matters
18
regarding the Chief Executive Officer or as otherwise determined by the Management Committee. Each
Partner shall also be entitled to designate two non-voting observers to attend and participate in
all meetings of the Management Committee. So long as Xxxxxxx Xxxx Xxxxxxxxx is CEO of MediaNews
Group, Inc., MediaNews shall elect a chairman of the Management Committee (“Chairman”) who shall
have the responsibility for convening and chairing the meetings of the Management Committee. The
Chairman may, but need not be, one of the members appointed by MediaNews to the Management
Committee, provided however that when acting in his capacity as Chairman he shall
not be counted for the purposes of constituting a quorum, nor shall he have any voting rights on matters brought before the Management Committee. If a Chairman
has not been elected by MediaNews or in the absence or unavailability of the Chairman, the member
who requested the meeting shall convene and chair the meeting. If Xx. Xxxxxxxxx is no longer
serving as CEO of MediaNews Group, Inc., a Chairman may be appointed by at least three (3) members
of the Management Committee.
(b) Duties and Powers. The Management Committee may exercise all such powers of the
Partnership and do all such lawful acts and things as are not directed or required to be exercised
or done by the Partners. Each member of the Management Committee may delegate to a representative
by written proxy the right to act on behalf of the member in any respect, including without
limitation the right to attend meetings or telephone conferences, to represent that Partner’s
appointed member for the purposes of constituting a quorum at a meeting, and to vote upon
resolutions with or without a meeting.
8.2 Removal of Members; Vacancies. A member of the Management Committee may be removed at
any time, with or without cause, by the Partner (or Partners) who appointed such member. Any
vacancy on the Management Committee resulting from removal, resignation, death or incapacity shall
be filled by the Partner (or Partners) who is entitled to appoint such member.
8.3 Meetings of the Management Committee; Notice. The Management Committee shall meet in
regular meetings held at least quarterly at such time and place as may from time to time be
determined by the Management Committee either in person or by telephone. Special meetings of the
Management Committee may be called by any member. Written notice of regular and special meetings
of the Management Committee, stating the place, date and hour of the meeting shall be delivered to
each member together with a reasonably detailed agenda for such meeting not less than five Business
Days before the date of the meeting, provided, that the foregoing notice requirement may be waived
by the Management Committee with respect to any meeting at which at least three (3) members of the
Management Committee (including at least one (1) member appointed by Gannett and at least one (1)
member appointed by MediaNews) vote for waiver of notice. Notice may be delivered to members in
person, by telephone, facsimile, electronic mail or other means of telecommunication.
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8.4 Quorum. Three (3) members of the Management Committee shall constitute a quorum for
the transaction of all such business as shall have been set forth with reasonable specificity in the agenda accompanying the notice for such meeting, either in person or by telephone provided
that such three (3) (or more) members who are in attendance at such meeting include at least one
(1) member appointed by Gannett and at least one (1) member appointed by MediaNews. For the
transaction of all other business at a regular or special meeting of the Management Committee,
three (3) members of the Management Committee, whether present in person or by telephone, shall
again constitute a quorum, provided that such three (3) or more members who are in attendance
include at least one (1) member appointed by Gannett and at least one (1) member appointed by
MediaNews.
8.5 Voting. Any matter brought before the Management Committee shall be decided by a
majority of members present, except for matters that require a unanimous vote of the Management
Committee as provided in this Agreement or as otherwise provided under the laws of the State of
Delaware.
8.6 Certain Matters Requiring a Unanimous Vote of the Management Committee. The
Partnership shall not, and Northwest New Mexico Publishing Company (successor to Pennsylvania
Newspapers Publishing Inc.) shall cause York Limited Partnership not to, without a unanimous vote
of all five (5) members of the Management Committee:
(a) admit any new Partners to the Partnership or admit any new partners to York Limited
Partnership;
(b) sell, lease, transfer or otherwise dispose of (other than pro rata to the
Partners), other than in the ordinary course of business, any assets, property and goodwill of any
newspaper or related publication owned by the Partnership or by York Limited Partnership;
(c) except for distributions to Partners pursuant to Section 5.1 which may be deemed to be
advances, commit or cause the Partnership or York Limited Partnership to invest in or purchase the
securities of, or any interests of, any person except short-term investments in U.S. Government
securities, federally-insured certificates of deposit, repurchase agreements for such securities,
or commercial paper rated A-1 or better by Standard and Poor’s or P-1 or better by Xxxxx’x or its
equivalent by a nationally recognized statistical rating organization;
(d) commit or cause the Partnership or York Limited Partnership to acquire all or
substantially all of the capital stock or all or substantially all of the assets of any person or
business deemed to be material or outside of the ordinary course of business;
(e) except as provided in Section 3.1(b) or Section 12.2 hereof, obligate the Partners to make
any Additional Capital Contribution or, adjust any Partner’s Percentage Interest;
20
(f) cause the Partnership or York Limited Partnership to create, or enter into, any
corporation, partnership, limited liability company, joint venture, association, trust or other
business entity or to merge or consolidate with any person;
(g) except as provided in Section 8.9 hereof, commit or cause the Partnership or York Limited
Partnership to enter into any contract, agreement, understanding or transaction (i) with any
person, that is other than in the ordinary course of the Partnership’s business, (ii) with a
Partner or an affiliate of any Partner, which would have the result of imposing terms or
conditions on the Partnership or York Limited Partnership that are more onerous or less
advantageous to the Partnership or York Limited Partnership than those customarily provided by such
Affiliate to its affiliates or (iii) with a Partner or an Affiliate of any Partner that either
involves goods, services or properties of a value of more than $350,000 in the aggregate over the
entire term of such contract, agreement, understanding or transaction, or does not reflect standard
and customary commercial terms;
(h) accept the contribution of any additional newspapers or related assets from any Partner
as an Additional Capital Contribution under the provisions of Section 3.1(c) hereof;
(i) commit or cause the Partnership or York Limited Partnership (i) to borrow any funds
outside of the ordinary course of business; (ii) to enter into any capitalized lease agreements,
which are material or outside of the ordinary course of business, except for refinancings or
extensions of any existing indebtedness of the Partnership or York Limited Partnership (including,
without limitation, the Indebtedness), (iii) to enter into any hedge agreement, or (iv) to
guarantee the indebtedness of any other person or entity;
(j) make any Capital Expenditures materially in excess of the amounts provided in the Business
Plan for such expenditures or which are not in the ordinary course of business;
(k) except as permitted pursuant to Section 8.11 or Article X hereof, dissolve or liquidate
the Partnership or York Limited Partnership;
(l) make any material change to the nature of the Partnership’s business as described in
Section 2.3 or make any material change to the nature of the business of York Limited Partnership
as conducted on the Closing Date;
(m) adopt any portion of the Business Plan which would, of itself, require a unanimous vote of
the Management Committee;
(n) amend, terminate or change in any material respect the Partnership’s existing business
relationships at its Texas and New Mexico newspapers with Career Builder or Classified Ventures;
21
(o) pledge, assign, hypothecate or grant any security interest in, or with respect to, all or
any portion of the York Partnership Interest or any material assets of the York Partnership’s
Newspapers or the Partnership; or
(p) amend or waive any provision of this Agreement, the York Joint Operating Agreement or the
York Limited Partnership Agreement (the parties understand and agree, however, that the grant of
any such consent or approval with respect to any proposed amendment shall in no way waive or modify
any rights of the Partnership or Gannett under the Contribution Agreement).
8.7 Action by Consent. Any action required or permitted to be taken on behalf of the
Partnership at any meeting of the Management Committee may be taken without a meeting by written
consent signed by the number of members of the Management Committee required to approve such
action, provided that such members include at least one member appointed by each of the Partners.
8.8 Executive Officers.
(a) The Management Committee shall elect a chief executive officer of the Partnership (the
“Chief Executive Officer”) who shall have the responsibility for managing the day-to-day business
operations and affairs of the Partnership and supervising its other officers, subject to the
direction, supervision and control of the Management Committee and the Partners. In general, the
Chief Executive Officer shall have such other powers and perform such other duties as usually
pertain to the office of a chief executive officer, and as from time to time may be assigned to him
by the Management Committee, including, without limitation, the authority to retain and terminate
employees of the Partnership. The powers and duties of the Chief Executive Officer shall at all
times be subject to the provisions of this Agreement.
(b) The Management Committee shall also elect a chief financial officer of the Partnership
(the “Chief Financial Officer”) who shall have the responsibility for managing the Partnership’s
financial affairs and books of account, subject to the direction of the Management Committee, the
Chief Executive Officer, and the Partners. In general, the Chief Financial Officer shall have such
other powers and perform such other duties as usually pertain to the office of a chief financial
officer, and as from time to time may be assigned to him by the Management Committee. The powers
and duties of the Chief Financial Officer shall at all times be subject to the provisions of this
Agreement.
(c) The Management Committee may in its discretion also elect from time to time such other
Executive Officers as it may determine, each of whom shall have such powers and perform such duties
as usually pertain to such offices and as from time to time may be assigned to such persons by the
Management Committee. The powers and duties of each Executive Officer shall be subject to the
provisions of this Agreement.
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(d) Subject to Section 8.10 hereof, both the Partnership’s Chief Executive Officer and the
Chief Financial Officer shall be employees of MediaNews.
(e) Subject to the provisions of this Agreement and to the directives and policies of the
Management Committee, the Chief Executive Officer, the Chief Financial Officer and the other
officers of the Partnership shall have the power, acting individually or jointly, to represent and
bind the Partnership in all matters, in accordance with the scope of their respective duties
subject to Section 8.6 hereof and any other limitations imposed by the Management Committee.
8.9 Provision of Services to Partnership by MediaNews.
(a) The Partners hereby agree that the Partnership shall obtain management services,
operating, administrative, accounting, electronic media and/or other support services, newsprint
purchase services, financial reporting services, human resource services, employee benefit plans
and services, risk management services, tax reporting and tax return preparation services and other
similar services which MediaNews Group, Inc., a Delaware corporation (“MNG”) provides to its own
operating affiliates (collectively, the “MediaNews Support Services”) from MNG. However, Gannett
Satellite Information Network, Inc., a Delaware corporation and the general partner of Gannett
(“GANSAT”) shall, unless the Partnership requests otherwise, continue to provide newsprint purchase
services to the Partnership’s newspapers located in Texas and New Mexico. Newsprint purchased for
the Partnership by GANSAT shall be provided at GANSAT’s cost, including all vendor discounts
related to newsprint purchased by the Partnership. Newsprint purchased for the Partnership by MNG
shall be provided at MNG’s cost, including all vendor discounts related to newsprint purchased by
the Partnership.
(b) In exchange for these MediaNews Support Services, the Partnership shall pay MNG a
management fee of $75,000 per annum, payable each year in advance commencing as of January 1, 2006,
with an automatic 3% increase for each successive year that MNG provides the MediaNews Support
Services. MNG shall begin providing the MediaNews Support Services after the Closing of the
transactions contemplated by the Contribution Agreement (as defined therein); provided that GANSAT
will continue to provide equivalent support services to the Partnership’s newspapers located in
Texas, New Mexico and Chambersburg, Pennsylvania for a limited period of time pursuant to a
transitional services agreement in such form as shall be reasonably acceptable to Gannett and MediaNews (the “Transitional Services Agreement”).
For periods on and after the Closing Date, Partnership employees shall participate in defined
contribution retirement, welfare and other employee benefit plans made available by MNG (the “New
Plans”), and, as of the Closing Date, Partnership employees shall cease active participation in
employee benefit plans made available through Gannett (the “Gannett Plans”) (except as otherwise
provided in the Transitional Services Agreement). Gannett shall be entitled to charge the
Partnership for its allocated cost for the coverage provided under the Gannett Plans through the
Closing Date, which costs shall be reflected on the Final Partnership Working Capital Statement,
or, for periods after the Closing Date, as set forth in the Transitional
23
Services Agreement, in accordance with past practice. Additionally, on an ongoing basis for periods after the Closing
Date, Gannett shall be entitled to charge the Partnership, in accordance with past practice, for
the Partnership’s portion of the cost for retiree medical or life insurance for those former
Partnership employees receiving retiree medical or life insurance benefits as of the Closing Date
under Gannett’s retiree medical or life insurance plans (no individual who is employed by the
Partnership on or after the Closing Date shall be entitled to receive benefits under Gannett’s
retiree medical or life insurance plans). From and after the Closing Date (or such later date set
forth in the Transitional Services Agreement), Gannett shall be solely responsible for, and without
charge to the Partnership, continuing to provide long-term disability benefits and workers’
compensation benefits to Partnership employees who are entitled to such benefits under Gannett’s
plans as of the Closing Date. As of the Closing Date (or such later date set forth in the
Transitional Services Agreement), the New Plans shall provide short-term disability benefits to
Partnership employees receiving such benefits as of such date and shall provide the coverage
required by Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA to individuals
who are entitled to or receiving such coverage as of such date by virtue of being, or their
connection with, a current or former Partnership employee. Except as set forth in this Section,
Gannett shall be solely responsible and liable for providing all benefits accrued under the Gannett
Plans. For purposes of the New Plans, (A) each Partnership employee shall be immediately eligible
to participate, without any waiting period, in any and all New Plans to the extent coverage under
such New Plan is comparable to a Gannett Plan or compensation arrangements or agreements in which
such Partnership employee participated immediately before the Closing Date; and (B) for purposes of
each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Partnership
employee, MNG shall cause all pre-existing condition exclusions and actively-at-work requirements
of such New Plan to be waived for such employee and his or her covered dependents, and MNG shall
cause any eligible expenses incurred by such employee and his or her covered dependents during the
portion of the plan year of the Gannett Plan ending on the date such employee’s participation in
the corresponding New Plan begins to be taken into account under such New Plan for purposes of
satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such
employee and his or her covered dependents for the applicable plan year as if such amounts had been
paid in accordance with such New Plan. Additionally, MNG shall credit Partnership employees with
their service with Gannett or its affiliates for purposes of eligibility to participate, vesting
and determining such employees’ entitlement to a level of benefits (but not for purposes of benefit accrual) under all employee plans, programs or
arrangements made available by MNG to Partnership employees after the Closing Date. All services
and supplies, including employee benefits, shall be provided to the Partnership at cost without any
administrative charge, allocation of internal expenses or adjustment for overhead or any other
direct or indirect payment to MNG or GANSAT, or their affiliates.
(c) At the election of Gannett, to be exercised, if at all, by notice in writing to the
Partnership within 90 days of the Closing (it being agreed that the failure so to timely send such
notice shall be deemed to be an election by Gannett not to have the provision of this subsection
(c) be effective), Gannett and MNG shall, as soon as
24
practicable
after receipt of such notice, cause the trustee(s) of the Gannett 401(k) plan to transfer all account balances (whether or not
vested and including any notes and loan documents) of the Partnership employees to a 401(k) plan
sponsored by MNG for the Partnership employees; provided that such transfer shall be made in
accordance with the terms of the applicable 401(k) plan, the Code and ERISA.
(d) MNG, by agreeing to provide management services, agrees to perform those services with the
degree of care that a reasonably prudent person would exercise and shall not enter into any
transaction in which it may have a conflict of interest without the unanimous consent of the
members of the Management Committee. If MNG should at anytime, due to bankruptcy, insolvency or
similar incapacity, become unable to continue to provide such services on behalf of the
Partnership, the Partners shall, by mutual agreement, make appropriate arrangements for the
provision of such services by one or more of the other Partners or their Affiliates, or by one or
more third parties.
8.10 Partnership Change in Control. In the event of a Partnership Change in Control,
Gannett shall have the right, exercisable in its sole discretion from time to time by giving not
less than two (2) Business Days prior written notice to MediaNews at any time following a
Partnership Change in Control, to cause some or all of the following changes to occur, which
change(s) shall be effective from and after the effective date (the “Effective Date”) of the change
specified in any such notice: (i) Gannett shall have the right to appoint three (3) of the five
(5) members of the Management Committee and MediaNews shall have the right to appoint two (2)
members of the Management Committee and, if Gannett exercises such right, the members serving on
the Management Committee immediately prior to the Effective Date shall be deemed to have been
removed by the Partners who appointed them as of the Effective Date; (ii) Gannett shall have the
right to appoint a replacement Chief Executive Officer and/or Chief Financial Officer of the
Partnership who shall be an employee of Gannett and terminate the then-current Chief Executive
Officer and/or Chief Financial Officer on behalf of the Partnership; (iii) Gannett shall have the
right to be designated the Tax Matters Partner of the Partnership and, if Gannett exercises such
right, MediaNews shall no longer serve as the Tax Matters Partner; and (iv) Gannett (and not
MediaNews) shall be entitled to exercise the drag-along rights set forth in Section 9.7 of this
Agreement and, if Gannett exercises such right, every reference to “MediaNews” in Section 9.7 shall be changed to “Gannett” and Section 9.7
shall be deemed to be amended in accordance with the foregoing. From and after the Effective Date,
MediaNews will, at its expense, (x) execute and deliver, or cause to be executed and delivered,
such documents to Gannett and the Partnership (including, but not limited to, any amendments to
this Agreement) as Gannett may reasonably request in order to effect the foregoing changes; and (y)
use all reasonable efforts to obtain any third party consents or approvals which may be necessary
in connection with any of the foregoing changes.
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8.11 MediaNews Change in Control.
(a) In General. MNG shall give prior written notice to Gannett of any proposed
MediaNews Change in Control that either the stockholders or board of directors of MNG intend to
accept (the “MNG Notice”), which notice shall specify the identity of the potential acquirer(s) and
the structure of the proposed transaction. Gannett shall have the option, exercisable in its sole
discretion, by giving written notice to MediaNews (the “Gannett Notice”) within thirty (30) days
following receipt of a MNG Notice, to elect to assume sole responsibility for the operation and
management of the Gannett Designated Newspapers (as defined below) (which Gannett Designated
Newspapers shall be specified by Gannett in such Gannett Notice), and in which case MediaNews shall
assume sole responsibility for the operation and management of the remaining newspapers of the
Partnership, in each case as provided in the Amended and Restated Partnership Agreement. If
Gannett provides the Gannett Notice to MediaNews within such 30-day period, (x) the Partners shall
enter into and deliver the Amended and Restated Partnership Agreement within fifteen (15) days of
the delivery of the Gannett Notice to MediaNews and (y) the proposed MediaNews Change in Control
shall not be consummated, and the representatives of MediaNews then serving on the Management
Committee shall not be replaced by MediaNews without consent of Gannett, until at least forty-five
(45) days after the date of delivery of the MNG Notice to Gannett; provided,
however, that if MediaNews has not executed and delivered to Gannett the Amended and
Restated Partnership Agreement prior to the end of such 45-day period, such 45-day period shall be
extended and the proposed MediaNews Change in Control shall not be consummated until after the
Amended and Restated Partnership Agreement has been executed by MediaNews and delivered to Gannett;
provided, further, that the Amended and Restated Partnership Agreement shall not
become effective unless and until the consummation of the proposed MediaNews Change in Control
referenced in the MNG Notice (the “Effective Date of the MNG Change in Control”).
(b) Gannett Designated Newspapers. As used in this Agreement, “Gannett Designated
Newspapers” shall mean all of the assets used, held for use in, located at the premises of, or
shown on the financial statements of one or more newspapers selected by Gannett, in its sole
discretion, which are owned directly or indirectly by the Partnership and are located in the same
geographic region, so long as the then total fair market value of the Gannett Designated Newspapers
reasonably approximates the then fair market value of Gannett’s Interest in the Partnership. The
Gannett Designated Newspapers shall include, but not be limited to, all of the types of Gannett
Assets and/or MediaNews Assets (in each case, as defined in the Contribution Agreement), as the
case may be, and the related current liabilities, associated with any of such newspapers. If
Gannett provides the Gannett Notice in accordance with clause (a) of this Section 8.11, following
the Effective Date of the MNG Change in Control, Gannett and MediaNews shall each have the option,
exercisable in its sole discretion at any time after December 25, 2012 by giving written notice to
the other Partners (the “Dissolution Notice”), to cause the Partnership to dissolve in accordance
with Section 8.11(c).
26
Notwithstanding any provision of this Section 8.11 to the contrary, if the
MNG Notice is received by Gannett after December 25, 2012, the proposed MediaNews Change in Control
may be consummated after thirty (30) days following the date of receipt by Gannett of the MNG
Notice and (x) no change to the operation or management of any of the Partnership’s newspapers and
no amendment to this Agreement shall be required pursuant to this Section 8.11, (y) following the
Effective Date of the MNG Change in Control, Gannett shall have the option, exercisable in its sole
discretion at any time thereafter, to cause the immediate dissolution of the Partnership in
accordance with Section 8.11(c), by giving the Dissolution Notice to the other Partners, and (z)
Gannett shall specify the Gannett Designated Newspapers in such Dissolution Notice.
(c) Dissolution of the Partnership. If Gannett or MediaNews exercises its option to
dissolve the Partnership in accordance with Section 8.11, a committee of six (6) persons, three (3)
of which are to be appointed by Gannett and three (3) of which are to be appointed by MediaNews,
pursuant to the procedures in Section 8.1, which committee shall act only by unanimous consent
(collectively, the “Dissolution Committee”), shall serve as the liquidator of the Partnership
(instead of the Management Committee as otherwise set forth in Section 10.3) to wind up the affairs
of the Partnership pursuant to this Section 8.11. In performing its duties as liquidator, the
Dissolution Committee shall, unless otherwise agreed to by the Partners, make an in kind
distribution of the assets of the Gannett Designated Newspapers to Gannett and an in kind
distribution of assets of the other newspapers owned directly or indirectly by the Partnership to
MediaNews. In liquidating the Partnership, the Dissolution Committee, in its reasonable
discretion, shall apply the assets of the Partnership as provided in Sections 10.3(b) and (c),
except that the Dissolution Committee may require liabilities of the Partnership associated with a
newspaper of the Partnership that is distributed in kind to not be paid and instead to be assumed
by the Partner that is to receive the in kind distribution of such newspaper assets. Any Partner
receiving an in kind distribution of newspaper assets shall enter into a reasonable and customary
cross-indemnification agreement in favor of the Partnership and the other Partner(s) with respect
to the liabilities of the newspaper that is distributed in kind, in form and substance reasonably
acceptable to the Dissolution Committee. The Dissolution Committee, in its capacity as liquidator, (x) shall have the right to compel each Partner to contribute an appropriate
amount of cash to the Partnership to the extent necessary to equalize the relative values of the
newspaper assets to be distributed in kind to the Partners, and /or (y) shall distribute an
appropriate amount of cash to address any differences in the relative values of assets (taking into
account any assumed liabilities) and cash distributed to the Partners. Prior to making any
liquidating distributions, the Dissolution Committee shall furnish each of the Partners with a
statement that shall set forth the values of the assets and liabilities of the Partnership as of
the date of dissolution and as of the date of the planned liquidation, the share of each Partner
thereof and a description of the newspaper assets and/or cash that each Partner is to receive as
its liquidating distribution, the amount of cash (if any) that is to be contributed by any Partner,
and a reasonably detailed report of the manner of disposition of the assets of the Partnership, and
such statement and report shall be final and binding on the Partners and the Partnership. If,
however, the Dissolution Committee is unable to agree upon the terms of such statement and report
within thirty (30) days after the date of the Dissolution
27
Notice, the fair market values of the assets of the Partnership shall be determined consistent with the approach set forth in Section
9.5(f), and the Dissolution Committee shall distribute the property and/or cash of the Partnership
in accordance with such determination of values. The unanimous determination of the Dissolution
Committee as to the value of each of the Partnership’s assets, or the determination of the
appraisers appointed pursuant to Section 9.5(f), as applicable, shall conclusively establish the
value of the Partnership’s properties and shall be final and binding upon the Partners and the
Partnership. From and after the date of the Dissolution Notice, each of the Partners and their
Affiliates will, at their expense, (1) execute and deliver to the other Partners and the
Partnership such documents as the Dissolution Committee may reasonably request in order to effect
such dissolution and winding up of the affairs of the Partnership; and (2) use all reasonable
efforts to obtain any third party consents or approvals (including, but not limited to, approvals
of governmental authorities) which may be necessary in connection with the dissolution and winding
up of the affairs of the Partnership.
ARTICLE IX
TRANSFER OF PARTNERSHIP INTERESTS;
ADDITIONAL AND SUBSTITUTE PARTNERS
ADDITIONAL AND SUBSTITUTE PARTNERS
9.1 Prohibited Transfers. No Partner may Transfer its Interest or any part thereof in any
way whatsoever, and any such Transfer in violation of this Article IX shall be null and void as
against the Partnership, except as otherwise permitted herein or provided by law, and the
Transferring or withdrawing Partners shall be liable to the Partnership and the other Partners for
all damages that they may sustain as a result of such attempted Transfer or withdrawal.
9.2 Permitted Transfers by Partners. No Partner may Transfer all or a portion of its Interest unless all of the conditions set
forth in Section 9.5 have been satisfied, in addition to each of the following conditions:
(a) the Partner desiring to consummate such Transfer (the “Assigning Partner”), and the
prospective Transferee each execute, acknowledge and deliver to all the other Partners such
instruments of transfer and assignment with respect to such Transfer and such other instruments as
are reasonably satisfactory in form and substance to all the Partners;
(b) the Transfer will not violate any federal or state laws;
(c) the Transfer will not cause any violation of or an event of default under, or result in
acceleration of any indebtedness under, any note, mortgage, loan, or similar instrument or document
to which the Partnership is a party;
(d) the Transfer will not cause a material adverse tax consequence to the Partnership or any
of the Partners including but not limited to any material adverse
28
tax consequence resulting, directly or indirectly, from the termination of the Partnership under section 708 of the Code;
(e) the Transfer will not cause the Partnership to be classified as an entity other than a
partnership for purposes of the Code; and
(f) except for transfers of a Partner’s Interest to an Affiliate of such Partner, any
amendments to this Agreement required by or made a condition by any Partner to its consent to the
transfer, have been made.
9.3 Substitute Partner. A Transferee of the whole or any part of an Interest who satisfies
all of the conditions referenced in Section 9.2 hereof shall have the right to become a Partner in
place of the Assigning Partner only if all of the following conditions are satisfied:
(a) the fully executed and acknowledged written instrument of assignment that has been filed
with the Partnership sets forth a statement of the intention of the Assigning Partner that the
Transferee become a Substitute Partner in its place;
(b) the Transferee executes, adopts and acknowledges this Agreement (as it may be amended) and
agrees to assume all the obligations of the Assigning Partner; and
(c) any costs of the Transfer incurred by the Partnership shall have been reimbursed by the
Assigning Partner or the Transferee to the Partnership.
9.4 Involuntary Withdrawal by a Partner. With respect to the Transfer of a Partner’s
Interest due to bankruptcy, or other insolvency, involuntary dissolution or liquidation, and any
foreclosure (or other exercise of remedies by a party holding a security interest in such Interest)
(each, an “Involuntary Transfer”), the Partner with respect to whom such event occurred shall
forthwith cease to be a Partner and shall have no rights or powers as a Partner except for such
rights as are specified pursuant to Articles III, IV and V and Section 10.3(b) hereof.
9.5 Right of First Refusal for Sale of Partnership Interests.
(a) No Partner may voluntarily Transfer all or any part of its Interest in the Partnership to
any party (i) in any case prior to December 31, 2008 or (ii) after that date unless it has complied
with the procedures of Section 9.2 and first offers to sell such Interest to the other Partner(s)
pursuant to the terms of this Section 9.5; provided that this Section 9.5 shall not be
applicable with respect to a Transfer to an Affiliate of the transferring Partner.
(b) A Partner (the “Offering Partner”) who has received a firm, written, bona fide offer from
a third-party for its Interest (a “Third Party Offer”) or who has
29
otherwise determined to offer its Interest for sale shall, before offering such Interest or agreeing to accept such offer for such
Interest (in either case, the “Offered Interest”), give written notice to the other Partners that
are not Affiliates of the Offering Partner (each an “Option Partner”) of such offer or intent
including, in the case of a Third Party Offer, a copy of such Third Party Offer and a complete
description thereof including, by way of example but not of limitation, the nature and extent of
such Third Party Offer, the purchase price therein, the terms of payment and the time for
performance.
(c) Upon receiving the Offering Partner’s written notice pursuant to Section 9.5(b), the
Option Partner(s) shall have a period of thirty (30) days following the date of receipt by the
Option Partner of the Offering Partner’s notice to elect to purchase the Offered Interest at the
price determined in accordance with Section 9.5(f). If an Option Partner desires to purchase the
Offered Interest it shall give written notice to the Offering Partner in the manner set forth in
Section 13.2 hereof within such 30-day period. To be effective, this notice must be received by
the Offering Partner within such 30-day period. In no event may the Option Partner(s) elect to
acquire less than all of the Offered Interest. To the extent there is more than one Option
Partner, the Option Partners accepting such offer shall be jointly and severally liable to the
Offering Partner to purchase all of the Offered Interest.
(d) The closing of the sale and purchase of the Offered Interest shall be promptly completed,
but in any event, to the extent practicable, within ninety (90) days after the receipt of the
Option Partner(s)’ notice of acceptance (or such later date as necessary to obtain any necessary
regulatory approvals). The Management Committee shall assist in coordinating the closing. At the
closing, the Offering Partner shall sell the Offered Interest, free and clear of all liens and
encumbrances, and execute and deliver such assignment(s) and all other documents or other instruments of assignment or
conveyance necessary to effect and evidence the assignment. At the closing, the Option Partner(s)
shall deliver to the Offering Partner cash, a certified or official bank check or shall pay by wire
transfer of immediately available funds for the applicable purchase price.
(e) If the Option Partner(s) do not elect to purchase all of the Offered Interest pursuant to
this Section 9.5, then the Offering Partner shall be free to sell, assign, transfer, pledge,
encumber or otherwise dispose of the Offered Interest pursuant to the Third Party Offer or, in the
case of a non-Third Party Offer, to any third party for an amount equal to Fair Market Value of the
Offered Interest, as hereunder determined, in either case, within six month’s after the date of the
Option Partner(s)’ notice of refusal or after the expiration of the 30-day response period,
whichever occurs first. For purposes of this Section 9.5(e), a sale shall be deemed made when
there is executed a legally binding agreement between the Offering Partner and the prospective
purchaser, subject to no condition or contingency which permits the prospective purchaser to
terminate or cancel the agreement, except for the default of the Offering Partner, and routine
approvals or conditions. If a sale within the meaning of this Section 9.5(e) is not made within
such 6-month period, then the Offered Interest shall remain subject to the restrictions of this
Agreement and must again be first offered to the Option Partner(s) if the Offering Partner
thereafter wishes to sell its Interest to a third party.
30
(f) (i) In the case of a Third Party Offer, if the consideration offered by the prospective
purchaser is offered in cash and/or a promissory note or other similar instrument to be issued by
the prospective purchaser, the price shall be the price offered by such prospective purchaser. If
(A) the consideration offered by the prospective purchaser is offered in a form other than cash
and/or a promissory note or other similar instrument or (B) the Offering Partner has not received a
Third Party Offer, then in either case, the price shall be the Fair Market Value of the Offered
Interest, as defined below.
(ii) For the purposes of this Agreement, “Fair Market Value of the Offered Interest”
shall be
the amount that would be paid for the Offered Interest in the Partnership as a going concern, on a
consolidated basis, by a willing buyer to a willing seller. The Offering Partner and the Option
Partner(s) may mutually agree as to the Fair Market Value of the Offered Interest in question. If
the Offering Partner and the Option Partner(s) are unable to agree on the Fair Market Value of the
Offered Interest within fifteen (15) days after the Offering Partner’s written notice of the
proposed sale, then in such event Fair Market Value of the Offered Interest shall be determined
pursuant to Section 9.5(f)(iii) by two independent qualified appraisers, one to be appointed by the
Offering Partner and the other to be appointed by the Option Partner(s).
(iii) The two independent appraisers shall be appointed within fifteen (15) days after
receipt
by the Option Partner(s) of the notice of proposed sale. If either side fails to appoint an
appraiser within such period, then its right to do so shall lapse and the appraisal made by the one
independent appraiser who is timely appointed shall be the Fair Market Value of the Offered Interest. If two appraisals are made, and if
the two appraised values differ by less than 15 percent, Fair Market Value of the Offered Interest
shall be the average of the two appraisals, and if the two appraised values differ by more than 15
percent, the two appraisers shall jointly select a third appraiser and, the Fair Market Value of
the Offered Interest shall be the average of the two of the three appraisals that are closest
together in amount. All appraisals shall be made within thirty (30) days of appointment of an
appraiser, and written notice of the results of such appraisals shall be given to all parties
within such 30-day period. The Fair Market Value of the Offered Interest shall be determined based
upon the value of the Partnership in its entirety as a going concern, with the Offering Partner
receiving a proportionate part of such total value based upon its Percentage Interest. In making
any appraisal hereunder, all debts and liabilities shall be taken into account. Each side shall
pay the fees of the appraiser selected by them.
9.6 Tag-Along Rights Regarding Sales of Partnership Interests.
(a) Except for Transfers of a Partner’s Interest to an Affiliate of such Partner and except
following an Involuntary Transfer of a Partner’s Interest, in any case where a Partner has declined
to exercise its rights of first refusal under Section 9.5, no Partner (the “Tag-Along Offeror”)
shall, individually or collectively, in any one transaction or series of transactions, directly or
indirectly, sell or otherwise dispose of its
31
Interest, to any person (a “Third Party”) unless the terms and conditions of such sale or other disposition to such Third Party shall include an offer
to each other Partner (each, a “Tag-Along Offeree”) to include, at the option of each Tag-Along
Offeree, in the sale or other disposition to the Third Party, such Tag-Along Offeree’s Interest
(the “Tag-Along Right”). Each Partner proposing to effect such a sale or other disposition shall
send a written notice (the “Tag-Along Notice”) to each of the Tag-Along Offerees setting forth the
terms of the offer. At any time within 15 days after its receipt of the Tag-Along Notice, each
Tag-Along Offeree may exercise its Tag-Along Option by furnishing written notice of such exercise
(the “Tag-Along Exercise Notice”) to the Tag-Along Offeror.
(b) If the proposed sale or other disposition to the Third Party by the Partner providing the
Tag-Along Notice is consummated, each Tag-Along Offeree shall have the right to sell such Third
Party all of its Interest.
(c) Each Partner participating in the sale or other disposition to the Third Party shall have
the right, in their sole discretion, at all times prior to consummation of the proposed sale or
other disposition giving rise to the Tag-Along Right granted by this Section to abandon, rescind,
annul, withdraw or otherwise terminate such sale or other disposition as it relates to such
Partner’s Interest whereupon that Partner’s Tag-Along Rights in respect of such sale or other
disposition pursuant to this Section shall become null and void, and neither the Tag-Along Offeror
nor the Third Party shall have any liability or obligations to the withdrawing Tag-Along Offeree
with respect thereto by virtue of such abandonment, rescission, annulment, withdrawal or
termination.
(d) The purchase of each Tag-Along Offeree’s Interest pursuant to this Section shall be on the
same terms and conditions, including but not limited to the purchase price (as adjusted for any
difference in size of the respective Interest’s), as are applicable to the Partner giving the
Tag-Along Notice, which shall be stated in such Tag-Along Notice. In determining the purchase
price of any Interest under this Section, the aggregate purchase price of all Interests being
acquired by the Third Party shall be increased to the extent any of the selling Partners shall
receive additional compensation (A) for covenants not to compete or (B) for services (such as
pursuant to consulting agreements or management agreements) which are in excess of the amounts
which would be payable for comparable services as a result of an arm’s-length transaction.
(e) If, within 15 days after receipt of a Tag-Along Notice, any Tag-Along Offeree has not
delivered a Tag-Along Exercise Notice, such Tag-Along Offeree will be deemed to have waived any and
all of its rights with respect to the sale or other disposition of Interests described in such
Tag-Along Notice and the other Partners shall have 135 days following the expiration of such 15-day
period in which to consummate such sale or other disposition on terms not more favorable to such
other Partners than those described in the Tag-Along Notice. If, at the end of 150 days following
receipt of such Tag-Along Notice, the sale or other disposition described therein has not been
completed, then all restrictions on sale or other disposition contained in this Agreement shall
again be in effect.
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9.7 MediaNews Drag-Along Rights.
(a) Subject to Section 8.10 hereof, if at any time after December 31, 2008, MediaNews receives
a bona fide written offer to purchase all of the Interests in the Partnership from an independent
third party, in one transaction or a series of transactions, and MediaNews determines to accept
such offer, then, notwithstanding any other provisions of this Agreement, at MediaNews’ election,
all other Partners shall, subject to (b) below, be required to sell their respective Interests on
the same terms and conditions (except for adjustments based upon the relative size of Percentage
Interests) as have been offered to MediaNews (the “MediaNews Drag-Along Rights”); provided
that the aggregate purchase price of all Interests being acquired by the Third Party shall
be increased to the extent any of the selling Partners shall receive additional compensation (A)
for covenants not to compete or (B) for services (such as pursuant to consulting agreements or
management agreements) which are in excess of the amounts which would be payable for comparable
services as a result of an arm’s-length transaction; and further provided
that all other Partners receive fair market value (as determined in accordance with Section
9.5(f)) for their Interest.
(b) Subject to Section 8.10 hereof, if MediaNews elects to exercise its Drag-Along Rights, it
shall provide written notice (the “Drag-Along Notice”) to each other Partner of such election at least 60 days in advance of the proposed closing date for such
transaction, which notice shall describe the terms and conditions of such offer and the proposed
closing date. Such Drag-Along Notice shall be deemed a Third Party Offer (as defined in Section
9.5(b) hereof) with respect to the Interest of MediaNews and shall be subject to the right of first
refusal of the other Partners that are not Affiliates of MediaNews (each, an “Option Partner”)
pursuant to Section 9.5 hereof. If the Option Partner provides written notice to MediaNews of its
election to purchase the Offered Interest within thirty (30) days following the date of receipt by
the Option Partner of the Drag-Along Notice, the sale to the Option Partner shall be completed in
accordance with Section 9.5 hereof. If the Option Partner fails to provide such notice within such
30-day period, then the Option Partner shall be obligated to sell its entire Interest to the Third
Party making such offer on the terms set forth in the Drag-Along Notice. However, if the
transaction is not completed within 90 days after the giving of the Drag-Along Notice, then any
sale thereafter by MediaNews of its Interest with respect to which it wishes to exercise its
Drag-Along Rights shall require a new notice under this Section 9.7(b).
9.8 Admission of Additional Partners. A person shall become an Additional Partner only if
and when each of the following conditions is satisfied:
(a) the Management Committee, unanimously and in its sole and absolute discretion, determine
the Additional Contribution Terms;
33
(b) the Partnership has complied with the terms of Section 3.1(b);
(c) all of the Partners consent in writing to such admission, which consent may be withheld by
any such Partner in its sole and absolute discretion;
(d) the Management Committee receives written instruments (including, without limitation, such
person’s consent to be bound by this Agreement (as it may be amended) as an Additional Partner)
that are in a form satisfactory to the Management Committee (as determined in its sole and absolute
discretion);
(e) the Partnership has received such person’s Capital Contribution; and,
(f) any amendments to this Agreement required by or made a condition by any Partner to its
consent to the transfer, have been made.
9.9 Acknowledgment of Pledge of Interests. Gannett hereby (i) acknowledges that MediaNews’
Interest in the Partnership has been pledged as security under an Amended and Restated Credit
Agreement dated as of December 30, 2003, as currently amended, among MediaNews Group, Inc., Bank of
America, N.A., and other banks, as amended, substituted, refinanced, renewed or replaced (without regard to the amount of credit extended thereunder or the identity of the lenders
or agents with respect thereto) and (ii) without limitation of its rights under Section 8.10,
agrees that any foreclosure on such pledge shall not be deemed a Transfer for purposes of Sections
9.3, 9.5, 9.6 and 9.7 (but shall be deemed an Involuntary Transfer pursuant to Section 9.4).
9.10 Rights of First Refusal with Respect to Certain Assets Offered to the Partners. With
respect to any offer or sale of substantially all of the assets, properties and goodwill of: (a)
any newspapers or related publications a majority of the circulation of which occurs in the State
of New Mexico, with the exception of XxXxxxxx county, Bernalillo county, and Santa Fe county; (b)
any newspapers or related publications a majority of the circulation of which occurs in the
counties of Adams, Berks, Cumberland, Dauphin, Franklin, Lancaster, Lebanon, Perry or York in the
Commonwealth of Pennsylvania or in El Paso county, Texas; or (c) any radio or television station
licensed in Xxxx Xxx, Xxxxx, or Xxxx counties, New Mexico or the El Paso television DMA or the
Harrisburg-Lancaster-Lebanon-York television DMA that is made to either Gannett or MediaNews or
their respective Affiliates during the term of this Agreement (other than offers which relate to
assets, properties and goodwill which the party receiving such offer is, as of the date of this
Agreement, contractually obligated to offer to a third person an equity interest therein, or other
investment opportunity with respect thereto), such party (the “Notifying Party”) shall give prompt
written notice of such offer to the other Partner. Should the other Partner give written notice to
the Notifying Party of its approval of the negotiation for the acquisition of such assets,
properties and goodwill by the Partnership within 10 days of its receipt of the Notifying Party’s
notice of the offering of such assets, the Notifying Party shall not negotiate to acquire such
assets, properties and goodwill for its own account, and the Notifying Party shall instead permit
the
34
Partnership to negotiate for the acquisition of such assets, properties and goodwill from the seller of such assets. Should the other Partner fail to provide the Notifying Party such written
notice of approval, the Notifying Party may proceed to acquire such assets, properties and goodwill
for its own account and ownership.
ARTICLE X
DISSOLUTION AND LIQUIDATION
10.1 Dissolution.
(a) The Partnership shall be dissolved upon the first to occur (each a “Dissolution Event”):
(i) December 31, 2053;
(ii) At any time after December 25, 2012, the election by written notice to the other
Partners
by one or more Partners (the “Electing Partner”) to terminate the Partnership prior to December 31,
2053; provided, however, that such right may be exercised at any time in connection with an Involuntary Transfer of a Partner’s
Interest or to the extent required to effect compliance with the provisions of any indenture
applicable to publicly held indebtedness of a Partner; provided, further, that
MediaNews shall not be entitled to make any election to terminate the Partnership pursuant to this
paragraph, or to cause or permit any election that was previously made pursuant to this paragraph
to be continued, from and after the date of any MNG Notice, unless and until MNG has confirmed in
writing to Gannett that such MNG Notice has been revoked by MNG and that the proposed transaction
described in such MNG Notice will not be consummated;
(iii) Upon the election by Gannett or MediaNews to dissolve the Partnership following a
MediaNews Change of Control, as provided in Section 8.11 of this Agreement; or
(iv) The occurrence of any other event specified under the Delaware Uniform Partnership Law
(6 Del. C. 1953, Section 1501 et seq.) as one effecting such dissolution.
(b) Notwithstanding the provisions of subsection (a)(ii) above, a dissolution of the
Partnership (other than a dissolution described in Section 10.1(a)(iii) hereof) shall not occur if,
within 10 business days of receipt of the written notice described in subsection (a)(ii) above, the
Partners other than the Partner who is the Electing Partner provide written notice to the Electing
Partner of their election to continue the business of the Partnership and of their undertaking to
cause the Partnership to enter into a contract to redeem all of the Interest in the Partnership of
the Partner electing to terminate the Partnership, in exchange for a distribution of cash equal to
the then-determined fair market value of such Interest (net of any liabilities allocable to such
Interest) plus the amounts described in the second to last sentence of
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this subsection within 2 years of the date the fair market value of such Interest is determined under this Section 10.1(b).
Such fair market value shall be determined in accordance with the procedures set forth in Section
9.5(a) through (f) above, provided, however, that the period for negotiation between the Partners
set forth in Section 9.5(f)(ii) shall be 90 days. At the time such fair market value is determined, the Interest of the Electing Partner in the Partnership shall terminate and Electing
Partner shall be treated as a “retiring partner” for purposes of Code Section 736 and the payment
described in this Section 10.1(a) shall be treated as described in Code Section 736(b).
(c) Upon the date of the determination of such fair market value, the Electing Partner’s right
to receive any distribution or allocation of Profits from the Partnership under Section 4.2(b)
shall convert automatically into a first priority interest in the Profits of the Partnership equal
to the product of (x) the determined fair market value of such Interest and (y) LIBOR plus (I) 1
percent for the first 6-month period following the date of determination of the fair market value;
(II) 2 percent for the seventh through ninth months following the date of determination of the fair
market value; (III) 3 percent for the tenth through twelfth months following the date of
determination of the fair market value; (IV) 4 percent for the thirteenth through fifteenth months
following the date of determination of the fair market value; (V) 5 percent for the sixteenth
through eighteenth months following the date of determination of the fair market value; (VI) 6 percent
for the nineteenth through twenty-first months following the date of determination of the fair
market value; and (VII) 7 percent for the twenty-second through twenty-fourth months following the
date of determination of the fair market value. The payments described in this Section 10.1(c)
shall be treated as distributions of partnership income as described in Code Section 736(a).
10.2 Election to Continue the Business. The Partnership shall also not be dissolved
pursuant to a Dissolution Event specified in Sections 10.1(a)(i) or (iv) (except as otherwise
provided in the Act), if, within 20 business days of such Dissolution Event, all the remaining
Partners unanimously agree in writing to continue the business of the Partnership.
10.3 Closing of Affairs.
(a) In the event of the dissolution of the Partnership for any reason, and in the absence of
an election pursuant to Section 10.2 hereof to continue the business of the Partnership, (i) the
Management Committee or (ii) from the date of any MNG Notice and continuing thereafter unless and
until such MNG Notice has been revoked in writing by MNG prior to the consummation of the proposed
transaction described in such MNG the Notice, the Dissolution Committee, shall commence to close
the affairs of the Partnership, to liquidate or retain for distribution to the Partners its
investments and to terminate the Partnership, in each instance in such manner as the Management
Committee or Dissolution Committee (as the case may be) may reasonably determine to be appropriate,
provided, however, that (except as expressly provided in Section 8.11 hereof in connection with a
dissolution following a MediaNews Change in Control) no distribution of any Partnership property
shall be made to any of
36
the Partners (except for pro rata distributions) except upon the prior approval of all of the Partners. Upon complete liquidation of the Partnership’s
property and compliance with the distribution provisions set forth in Section 10.3(b) hereof, the
Partnership shall cease to be such, and the Management Committee or Dissolution Committee (as the
case may be) shall cause to be executed, acknowledged and filed all certificates necessary to
terminate the Partnership.
(b) In liquidating the Partnership, the assets of the Partnership shall be applied to the
extent permitted by the Act in the following order of priority:
(i) First, to pay the costs and expenses of the closing of the affairs and liquidation
of the Partnership;
(ii) Second, to pay the matured debts and liabilities of the Partnership;
(iii) Third, to establish reserves adequate to meet any and all contingent or
unforeseen liabilities or obligations of the Partnership, provided that at the expiration of such
period of time as the Management Committee or Dissolution Committee (as the case may be) may deem
advisable, the balance of such reserves remaining after the payment of such contingencies or
liabilities shall be distributed as hereinafter provided;
(iv) Fourth, to all Partners in proportion to each Partner’s Percentage Interest in
the Partnership, after taking appropriate account of, and making appropriate adjustments for, (A)
any Indebtedness then remaining outstanding which is attributable to any Partnership assets
previously contributed by a particular partner, and (B) any portion of any required capital
contributions or accrued but unpaid interest described in either Section 3.1(b) or 3.1(c) of this
Agreement which then remains outstanding, (provided, however, that to the extent that any Partner
has a finally adjudicated indemnity obligation to any other Partner, any distribution that would
otherwise be distributed to the Partner subject to such obligation shall be distributed to the
Partner(s) entitled to the benefit of the indemnity obligation to the extent thereof).
(c) No Partner shall have any obligation to restore a deficit balance in its Capital Account.
ARTICLE XI
AMENDMENT TO AGREEMENT
Amendments to this Agreement and to the Certificate of Formation of the Partnership shall be
approved in writing by all of the Partners. An amendment shall become effective as of the date
specified in the Partners’ approval or if none is specified as of the date of such approval or as
otherwise provided in the Act.
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ARTICLE XII
INDEMNIFICATION
12.1 General. From and after the Closing, the Partners shall indemnify each other as
provided in this Article XII. As used in this Agreement, the term “Damages” shall mean all
liabilities, demands, claims, actions or causes of action, regulatory, legislative or judicial
proceedings or investigations, assessments, levies, losses (including, without limitation, any
adverse tax consequences to other parties arising directly or indirectly from a violation of a
covenant in this Agreement by a party and reduction in profits and diminution in the value of an
interest in the Partnership), fines, deficiencies, interest, penalties, damages, judgments, costs
and expenses, including, without limitation: reasonable attorneys’, accountants’, investigators’, and experts’ fees and expenses sustained or
incurred in connection with the defense or investigation of any such claim.
12.2 Indemnification Obligations. Notwithstanding any other provision of this Agreement,
each party (an “Indemnifying Party”) shall defend, indemnify, save and keep harmless the other
Partners, their Affiliates, the Partnership, York LLC and their respective successors and permitted
assigns (collectively, the “Indemnified Parties”) against and from any and all Damages sustained or
incurred by any of them resulting from or arising out of or by virtue of:
(a) any breach of any representation or warranty made by the Indemnifying Party in this
Agreement;
(b) any breach by the Indemnifying Party of, or failure by the Indemnifying Party to comply
with, any of its covenants or obligations under this Agreement (including, without limitation,
their obligations under this Article XII); or
(c) any indemnification obligation of such party or any Affiliate thereof arising under the
provisions of Article X of the Contribution Agreement.
Except as provided in the succeeding two paragraphs of this Section 12.2, any indemnification
obligation arising under this Article XII and/or Article X of the Contribution Agreement shall be
discharged by a capital contribution by the Partner owing such obligation to the Partnership in the
amount of the Damages relating thereto. Any payment by the Partnership of Damages to which an
indemnification obligation relates shall be charged as a distribution to the Indemnifying Partner
and taken into account for purposes of current and future distributions made by the Partnership
pursuant to Section 5.1. In addition, no item of Partnership property shall be revalued to reflect
such indemnification payment. From the date of determination of such obligation (which shall be
the date agreed by the parties or the date of a final binding determination by a mediator or the
date of a final, non-appealable determination by a court of competent jurisdiction, as applicable)
and until such obligation (and all accrued interest, if any, with respect thereto) has been paid in
full in cash or other immediately available funds, all cash distributions to which a Partner shall
otherwise be entitled to
38
receive pursuant to Section 5.1(a) hereof, shall instead be retained by
the Partnership and credited to the discharge of the obligation to make such capital contribution
and to pay accrued but unpaid interest as provided in Section 3.1(c) hereof.
Notwithstanding any other provision of this Agreement to the contrary, in the event any
indemnification obligation arises under Section 10.6 of the Contribution Agreement and Gannett
reasonably determines that such claim is likely to result in Damages which would impact more than
one fiscal year of the Partnership (each, a “York Indemnity Claim”), Gannett shall have the option
to invoke the remedy described in this paragraph with respect to such York Indemnity Claim in lieu
of the remedies described in the immediately preceding paragraph of this Section. Such option may
be exercised by Gannett, in its sole discretion, by providing written notice to the Partnership
and MediaNews (each, a “Gannett Claim Notice”), within thirty (30) days of any such determination,
which sets forth with reasonable specificity the basis for the claim for indemnification, the
nature of the claim and the basis and methodology for calculating the amount of the proposed
reduction in the MediaNews Percentage Interest and the proportionate increase in the Gannett
Percentage Interest as a result of such York Indemnity Claim. The parties agree that of MediaNews’
59.36% Percentage Interest, a 29.50% Percentage Interest shall be treated by the parties as being
attributable to the contribution of the York Partnership Interest to the Partnership pursuant to
Section 2.5(a) of the Contribution Agreement. With respect to any York Indemnity Claim subject to a
Gannett Claim Notice, the parties agree that MediaNews’ Percentage Interest shall be adjusted to
the following percentage: (I) the sum of (a) the excess of 59.36 over 29.50 plus (b) the product
of 29.50 times a fraction, the numerator of which is the fair market value of the York Partnership
Interest on the date of the Gannett Claim Notice (taking into account all Damages resulting from or
arising out of or by virtue of such York Indemnity Claim, including, but not limited to, the
adverse effect, on a present value basis, of any changes which impact the subsequent business or
operations of the York Limited Partnership) and the denominator of which is the fair market value
of the York Partnership Interest immediately prior to the date that such indemnification obligation
first arose (for purposes of clarification, this fraction cannot be greater than 1), divided by
(II) 100 plus the amount described in (I)(b) above minus 29.50.
If MediaNews objects to the proposed reduction in the MediaNews Percentage Interest set forth
in the Gannett Claim Notice, MediaNews shall notify Gannett in writing of the basis for its
objection within fifteen (15) business days after receipt of the Gannett Claim Notice and, pursuant
to the procedures set forth in Section 13.1 hereof (except that no further written notice of the
matter in dispute shall be required), the parties shall attempt to agree upon the fair market
values of the York Partnership Interests for purposes of the applicable fraction set forth above.
If the parties are unable to agree on the fair market values of the York Partnership Interest
pursuant to Section 13.1, then MediaNews shall select an independent qualified appraiser (with the
concurrence of Gannett, which concurrence shall not be unreasonably withheld) to determine the fair
market values of the York Partnership Interests for purposes of the applicable fraction set forth
above, and the parties shall abide by the conclusions of such appraiser which
39
shall be final and binding upon the parties. The Partnership shall pay the fees of any such appraiser. Any
indemnification obligation with respect to a York Indemnification Claim subject to a Gannett Claim
Notice shall be discharged upon a reduction in the MediaNews Percentage Interest and proportionate
increase in the Gannett Percentage Interest pursuant to this paragraph, and such discharge shall be
effective as of the date of the applicable Gannett Claim Notice. Notwithstanding the preceding
sentence, from and after the date of any Gannett Claim Notice, unless otherwise agreed by the
parties, all cash distributions to which MediaNews shall otherwise be entitled to receive pursuant
to Section 5.1(a) hereof shall continue to be distributed to MediaNews until (i) MediaNews has made
an additional capital contribution to the Partnership pursuant to the next paragraph of this
Section or (ii) MediaNews has failed to exercise its option to make an additional capital contribution to the Partnership within the 30-day period referenced
in the next paragraph of this Section, in either of which events, any future distributions to which
MediaNews would otherwise be entitled to receive pursuant to Section 5.1(a) hereof shall be
equitably adjusted (including accrued interest at a rate of 5% per annum), retroactive to the date
of the Gannett Claim Notice, to take into account the period during which the MediaNews Percentage
Interest was reduced from and after the date of the Gannett Claim Notice.
If, as a consequence of Gannett’s invoking the remedy described in the preceding two
paragraphs of this Section, the Percentage Interest of MNG and its Affiliates would be decreased to
less than 51%, MediaNews shall have the option, exercisable by written notice to Gannett within 30
days of a final determination of the amount by which MediaNews’ Percentage Interest is to decrease
pursuant to the preceding two paragraphs, to contribute to the Partnership additional newspapers,
mastheads or related assets owned by it, provided that any such proposed additional capital
contribution shall be subject to Gannett’s reasonable concurrence, which such concurrence shall not
be unreasonably withheld; and provided, further, that no such proposed additional capital
contribution shall cause Gannett’s Percentage Interest to be decreased to a level of less than 90%
of the Gannett Percentage Interest which was in effect immediately prior to the date of the Gannett
Claim Notice which gave rise to such reduction in MediaNews’ Percentage Interest, without obtaining
the prior written consent of Gannett, which may be withheld in Gannett’s sole discretion. Upon
receipt by the Partnership of an additional capital contribution pursuant to this paragraph, the
Capital Account and Percentage Interest of the contributing Partner(s) will be adjusted upward to
reflect the fair market value of such contribution (determined in accordance with the procedures
set forth in Section 9.5(f)) and, subject to the terms of the immediately preceding sentence, the
Percentage Interest of the other Partner(s) will be adjusted downward proportionately to reflect
the increase in the contributing Partner’s Percentage Interest.
12.3 Exclusive Remedy. The sole and exclusive remedy of Indemnified Parties with respect
to any and all claims relating to the subject matter of this Agreement shall be pursuant to the
indemnification provisions set forth in this Article XII and the Contribution Agreement.
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12.4 Third Party Claims. Promptly following the receipt of notice of any claim for Damages
or for equitable relief which are asserted or threatened by a party other than the parties hereto,
their successors or permitted assigns (a “Third Party Claim”), the party receiving the notice of
the Third Party Claim shall (a) notify the other Partners in writing in accordance with Section
13.2 hereof of its existence setting forth with reasonable specificity the facts and circumstances of which such party has received notice and (b) if the party giving such notice is an
Indemnified Party, specifying the basis hereunder upon which the Indemnified Party’s claim for
indemnification is asserted. No failure to give notice of a claim shall affect the indemnification
obligations of the Indemnifying Party hereunder, except to the extent that the Indemnifying Party
can demonstrate that such failure materially prejudiced such Indemnifying Party’s ability to
successfully defend the matter giving rise to the claim. The Indemnified Party shall tender the
defense of a Third Party Claim to the Indemnifying Party.
The Indemnified Party shall not have the right to defend or settle such Third Party Claim.
The Indemnified Party shall have the right to be represented by counsel at its own expense in any
such contest, defense, litigation or settlement conducted by the Indemnifying Party;
provided, however, that with respect to any claim under Section 10.6 of the
Contribution Agreement, the Indemnifying Party shall be solely responsible for the fees and
expenses of outside counsel retained by the Indemnified Party to represent the Indemnified Party in
any such contest, defense, litigation or settlement. The Indemnifying Party shall lose its right
to defend and settle the Third Party Claim if it shall fail to diligently contest the Third Party
Claim. So long as the Indemnifying Party has not lost its right and/or obligation to defend and
settle as herein provided, the Indemnifying Party shall have the right to contest, defend and
litigate the Third Party Claim and shall have the right, in its discretion exercised in good faith,
and upon the advice of counsel, to settle any such matter, either before or after the initiation of
litigation, at such time and upon such terms as it deems fair and reasonable; provided that in any
event the Indemnifying Party shall consult with the Indemnified Party with respect to settling such
matter which decision shall be made by mutual agreement of the Indemnifying Party and the
Indemnified Party, not to be unreasonably withheld by either. All expenses (including without
limitation attorneys’ fees) incurred by the Indemnifying Party in connection with the foregoing
shall be paid by the Indemnifying Party. Notwithstanding the foregoing, in connection with any
settlement negotiated by an Indemnifying Party, no Indemnified Party shall be required by an
Indemnifying Party to (w) enter into any settlement that does not include as an unconditional term
thereof the delivery by the claimant or plaintiff to the Indemnified Party of a release from all
liability in respect of such claim or litigation, (x) enter into any settlement that attributes by
its terms liability to the Indemnified Party, (y) consent to the entry of any judgment that does
not include as a term thereof a full dismissal of the litigation or proceeding with prejudice or
(z) enter into any settlement which would, or could reasonably be expected to, result in or relate
to either a material nonmonetary obligation or restriction of any kind whatsoever being imposed
upon the Indemnified Party or Damages other than Damages which are indemnifiable under this Article
XII; provided, however, that the Indemnifying Party may enter into the settlements
described in (w) and (y) above if (1) such settlement is not in any way materially damaging or
harmful to the
41
Partnership’s business or the Indemnified Parties, as the case may be, and (2) the
Indemnifying Party agrees to remain liable to the Indemnified Party for indemnification with
respect to such claim indefinitely thereafter. No failure by an Indemnifying Party to acknowledge
in writing its indemnification obligations under this Article XII shall relieve it of such
obligations to the extent they exist. If an Indemnified Party is entitled to indemnification against a Third Party Claim, and the Indemnifying Party fails to accept the
defense of a Third Party Claim tendered pursuant to this Section 12.4, the Indemnifying Party shall
lose its right to contest, defend, litigate and settle such a Third Party Claim; provided that the
Indemnifying Party shall be entitled to participate, at its expense, with counsel of its choice,
and any settlement shall be approved by the Indemnifying Party, such approval not to be
unreasonably withheld, the Indemnified Party shall have the right, without prejudice to its right
of indemnification hereunder, in its discretion exercised in good faith and upon the advice of
counsel, to contest, defend and litigate such Third Party Claim, and subject to the preceding
sentence may settle such Third Party Claim, either before or after the initiation of litigation.
If, pursuant to this Section 12.4, the Indemnified Party so defends or (except as hereinafter
provided) settles a Third Party Claim, for which it is entitled to indemnification hereunder, as
hereinabove provided, the Indemnified Party shall be reimbursed by the Indemnifying Party for the
reasonable attorneys’ fees and other expenses of defending the Third Party Claim which is incurred
from time to time, forthwith following the presentation to the Indemnifying Party of itemized bills
for said attorneys’ fees and other expenses.
12.5 Other Indemnification Claims. The Indemnified Party shall give the Indemnifying Party
prompt notice of any Indemnification Claim (other than a Third Party Claim) specifying the basis
hereunder upon which the Indemnified Party’s claim for indemnification is asserted. No failure to
give notice of a claim shall affect the indemnification obligations of the Indemnifying Party
hereunder, except to the extent that the Indemnifying Party can demonstrate that such failure
materially prejudiced such Indemnifying Party’s ability to successfully defend or otherwise respond
to the matter giving rise to the claim. In respect of any Indemnification Claim other than a Third
Party Claim, the Partnership shall provide the Indemnifying Party with the opportunity and all
appropriate access to the applicable facilities, personnel, books and records necessary to respond
to such Indemnification Claim.
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ARTICLE XIII
GENERAL PROVISIONS
13.1 Mediation. Each Partner agrees that, in the event of any dispute among such Partners
regarding the interpretation or application of any provision of this Agreement other than with
respect to a potential reduction in the Percentage Interest of MNG and its Affiliates pursuant to
the procedures set forth in Section 12.2 of this Agreement (including any dispute regarding the
operation of the Partnership that cannot be resolved by the procedures created by the provisions of
this Agreement), it will follow the following procedures:
(a) it will give each other Partner written notice of the matter in dispute;
(b) it will negotiate reasonably and in good faith with the other Partners in order to resolve
such dispute for a period of not less than fifteen (15) business days following receipt of the
notice in (a);
(c) if the dispute has not been resolved by negotiation pursuant to (b), it will cooperate
with the other Partners to submit the dispute to an independent mediator (to be selected by the
unanimous consent of the Partners, which shall only be withheld on the basis of good faith concerns
about the independence or adequacy of expertise of the proposed mediator) who shall have ten (10)
business days after the matter is fully submitted to him or her to propose a settlement of the
dispute;
(d) if any Partner refuses, in its sole and unreviewable discretion to accept the proposed
resolution of the mediator, it shall give prompt written notice of such refusal to the other
Partners and, at any time following receipt of any such notice, any Partner shall be free to pursue
any legal, equitable or other remedies available to it regarding the matter in dispute.
Notwithstanding the foregoing, no Partner shall be required to pursue the notice, negotiation
or mediation steps set forth above if it determines, reasonably and in good faith, the delay
involved in such procedure would cause irreparable, material harm to it or its interest in the
Partnership.
13.2 Notices. Unless otherwise specifically provided in this Agreement, all notices and
other communications required or permitted to be given hereunder shall be in writing, directed or
addressed to the respective addresses set forth in Schedule 13.2 attached hereto, and shall be
either (i) delivered by hand, (ii) delivered by a nationally recognized commercial overnight
delivery service, (iii) mailed postage prepaid by registered or certified mail, or (iv) transmitted
by facsimile, with receipt confirmed. Such notices shall be effective: (a) in the case of hand deliveries when received; (b) in the case of an overnight
delivery service, when received in accordance with the records of such delivery service; (c) in the
case of registered or certified mail, upon the date received by the addressee as determined by the
U.S. Postal Service; and (d) in the case of facsimile notices, when electronic indication of
receipt is received. Any party
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may change its address and facsimile number by written notice to the other parties given in accordance with this Section 13.2.
13.3 Confidentiality. Each of the Partners agrees that, except as required by law, legal
process, government regulators, or as reasonably necessary for performance of its obligations or
enforcement of its rights under this Agreement, without the prior written consent of the other
Partners, it will treat and hold as confidential (and not disclose or provide access to any person
other than such Partner’s attorneys or accountants) and it will cause its Affiliates, officers,
managers, partners, employees and agents to treat and hold as confidential (and not divulge or
provide access to any person) all information relating to (i) the business of the Partnership and
(ii) any patents, inventions, designs, know-how, trade secrets or other intellectual property
relating to the Partnership, in each case excluding (A) information in the public domain when
received by such Partner or thereafter in the public domain through sources other than such
Partner, (B) information lawfully received by such Partner from a third party not subject to a
confidentiality obligation and (C) information developed independently by such Partner. The
obligations of the Partners hereunder shall not apply to the extent that the disclosure of
information otherwise determined to be confidential is required by applicable law, provided,
however, that prior to disclosing such confidential information to any party other than a
governmental agency exercising its ordinary regulatory oversight of a Partner, a Partner shall
notify the Partnership thereof, which notice shall include the basis upon which such Partner
believes the information is required to be disclosed. This Section 13.3 shall survive for a period
of four years with respect to any Partner that withdraws from the Partnership and, with respect to
any dissolution or termination of the Partnership pursuant to Article X hereof, for a period of
time agreed by the all of Partners.
13.4 Entire Agreement, Etc. This Agreement, together with the Contribution Agreement,
constitutes the entire agreement among all of the parties hereto relating to the subject matter
hereof and supersedes all prior contracts, agreements and understandings among all of them. No
course of prior dealings among all of the parties shall be relevant to supplement or explain any
term used in the Agreement. Acceptance or acquiescence in a course of performance rendered under
this Agreement shall not be relevant to determine the meaning of this Agreement even though the
accepting or the acquiescing party has knowledge of the nature of the performance and an
opportunity for objection. All waivers, amendments and modifications of this Agreement must be in writing, executed by a duly
authorized officer of the party against whom enforcement of any waiver, modification or consent is
sought. No waiver of any terms or conditions of this Agreement in one instance shall operate as a
waiver of any other term or condition or as a waiver in any other instance.
13.5 Construction Principles. As used in this Agreement words in any gender shall be
deemed to include all other genders. The singular shall be deemed to include the plural and vice
versa. The captions and article and section headings in this Agreement are inserted for
convenience of reference only and are not intended to have significance for the interpretation of
or construction of the provisions of this Agreement.
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13.6 Counterparts. This Agreement may be executed in two or more counterparts by the
parties hereto, each of which when so executed will be an original, but all of which together will
constitute one and the same instrument.
13.7 Severability. If any provision of this Agreement is held to be invalid or
unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity
or unenforceability; provided, however, that the remaining provisions will continue in full force
without being impaired or invalidated in any way unless such invalid or unenforceable provision or
clause shall be so significant as to materially affect the parties’ expectations regarding this
Agreement. Otherwise, the parties hereto agree to replace any invalid or unenforceable provision
with a valid provision which most closely approximates the intent and economic effect of the
invalid or unenforceable provision.
13.8 Expenses. The Initial Partners each agree to bear their own costs for all matters
involved in the negotiation, execution and performance of this Agreement and related transactions
unless otherwise specified herein.
13.9 Governing Law and Venue. The validity and construction of this Agreement shall be
governed by the internal laws (and not the principles of conflict of laws) of the State of
Delaware. Subject to the provisions of this Agreement with respect to the resolution by the
parties hereto of disputes hereunder pursuant to the mediation provisions herein set forth, any
legal action or proceeding with respect to this Agreement may be brought in the courts of the State of
Delaware and, by execution and delivery of this Agreement, each of the parties hereto hereby
accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. Each of the parties hereto hereby waives, and agrees not to assert, as a
defense in any action, suit or proceeding for the interpretation or enforcement of this Agreement,
that it is not subject thereto or that such action, suit or proceeding may not be brought or is not
maintainable in said courts or that this Agreement may not be enforced in or by said courts or that
its property is exempt or immune from execution, that the suit, action or proceeding is brought in
an inconvenient forum, that the venue of the suit, action or proceeding is improper or (provided
that process shall be served in any manner referred to in the following sentence) that service of
process upon such party is ineffective. Each of the parties hereto agrees that service of process
in any such action, suit or proceeding against it with respect to this Agreement may be made upon
it in any manner permitted by the laws of the State of Delaware or the federal laws of the United
States or as follows: (i) by personal service or by certified or registered mail to the party’s
designated agent for such service in such state, or (ii) by certified or registered mail to the
party at its address set forth in Schedule 13.2 herein. Service of process in any manner referred
to in the preceding sentence shall be deemed, in every respect, effective service of process upon
such party.
13.10 Binding Effect. Subject to the provisions of this Agreement relating to
transferability, this Agreement shall be binding upon, and inure to the benefit of, the Partners
and their respective permitted distributees, heirs, successors and assigns.
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13.11 Additional Documents and Acts. Each Partner agrees to execute and deliver such
additional documents and instruments and to perform such additional acts as may be necessary or
appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of
this Agreement and of the transactions contemplated hereby.
13.12 No Third Party Beneficiary. This Agreement is made solely for the benefit of the
parties hereto and their permitted distributees, heirs, successors and assigns and no other person
shall have any rights, interest, or claims hereunder or otherwise be entitled to any benefits under
or on account of this Agreement as a third party beneficiary or otherwise.
13.13 Waiver of Jury Trial. Each of the parties hereto hereby waives trial by jury in any action, proceeding or
counterclaim brought by or against it on any matters whatsoever arising out of or in any way
connected with this Agreement.
[Balance of Page Left Intentionally Blank]
46
IN WITNESS WHEREOF, each Partner has duly executed this Amended and Restated Partnership Agreement
as of the date set forth above.
Gannett Texas L.P. | ||||||
By: | Gannett Satellite Information Network, Inc. | |||||
Its General Partner | ||||||
By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||||
Xxxxxx X. Xxxxxx, Xx. | ||||||
Authorized Representative | ||||||
TNP Publishing, LLC | ||||||
By: | /s/ Xxxxxx X. Xxxx | |||||
Xxxxxx X. Xxxx | ||||||
Vice President and Chief Financial Officer |
Solely for purposes of the covenant in Section 8.6 above: |
Northwest New Mexico Publishing Company (successor to Pennsylvania Newspapers Publishing Inc.) | ||||
By: | /s/ Xxxxxx X. Xxxx | |||
Xxxxxx X. Xxxx | ||||
Vice President and Chief Financial Officer |
47
Schedule 13.2
Addresses for Notices
Gannett
Gannett Texas L.P.
c/o Gannett Co., Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
Fax No.: (000) 000-0000
c/o Gannett Co., Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
Fax No.: (000) 000-0000
with a copy to:
Gannett Co., Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
MediaNews
TNP Publishing, LLC
c/o MediaNews Group, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, XX, President
Fax No.: (000) 000-0000
c/o MediaNews Group, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, XX, President
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx, Xx. and Xxxxx Xxxxxx
Xxxxxx Xxxxxxx & Xxxx LLP
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Xxxxxx Xxxxxxx & Xxxx LLP
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
48