EXHIBIT 10.20
PURCHASE AGREEMENT
DATED AS OF APRIL 30, 2004
BETWEEN
XXXXXXX NEWS ALLIANCE, INC.
AND
MEDIANEWS GROUP, INC.,
YORK NEWSPAPERS HOLDINGS, LLC
MEDIANEWS GROUP INTERACTIVE, INC.
AND
YORK DAILY RECORD LLC
TABLE OF CONTENTS
PAGE
ARTICLE I PURCHASE AND SALE.................................................. 1
1.1 Purchase and Sale...................................................... 1
1.2 Assumption of Liabilities.............................................. 3
ARTICLE II EXERCISE PRICE; POST-CLOSING PARTNERSHIP DISTRIBUTION.............. 3
2.1 Exercise Price......................................................... 3
2.2 Payment................................................................ 3
2.3 Post-Closing Adjustments to the Exercise Price......................... 4
2.4 Post-Closing Partnership Distribution to BNA........................... 5
2.5 Post-Closing Audit..................................................... 5
2.6 Purchase Price Allocation.............................................. 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF BNA.............................. 6
3.1 Organization; Good Standing............................................ 6
3.2 Capacity to Sell; Authorization........................................ 6
3.3 Ownership of Right/Assets Subject to Option............................ 7
3.4 Pending or Threatened Litigation and Claims............................ 7
3.5 Employees; Labor Relations............................................. 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF MNG.............................. 7
4.1 Organization; Good Standing............................................ 7
4.2 Capacity; Authorization................................................ 8
4.3 Assignment of Put-Call Option Agreement................................ 8
ARTICLE V MUTUAL COVENANTS OF THE PARTIES.................................... 8
5.1 Mutual Covenants....................................................... 8
ARTICLE VI REAL PROPERTY LEASE................................................ 9
ARTICLE VII EMPLOYEE MATTERS................................................... 9
7.1 Union Agreement; Employment............................................ 9
7.2 Indemnification........................................................ 9
7.3 Assumption of Obligations to Employees................................. 10
7.4 No Employee Right...................................................... 10
ARTICLE VIII THE CLOSING........................................................ 10
8.1 Effective Date and Time................................................ 10
8.2 BNA's Closing Documents................................................ 10
8.3 Purchasers' Closing Documents.......................................... 11
ARTICLE IX PARTNERSHIP DISTRIBUTION........................................... 11
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ARTICLE X INDEMNIFICATION.................................................... 12
10.1 Survival of Representations and Warranties............................. 12
10.2 BNA's Indemnification Obligation....................................... 12
10.3 MNG's Indemnification Obligation....................................... 13
10.4 Procedure for Indemnification Claims................................... 14
ARTICLE XI GENERAL PROVISIONS.................................................. 16
11.1 Expenses............................................................... 16
11.2 Notices................................................................ 16
11.3 Governing Law.......................................................... 17
11.4 Counterparts........................................................... 17
11.5 Headings; Schedules; Exhibits.......................................... 17
11.6 Entire Agreement....................................................... 17
11.7 Third-Party Beneficiaries.............................................. 17
11.8 Assignment............................................................. 17
11.9 Specific Performance................................................... 18
11.10 Confidentiality........................................................ 18
11.11 Severability........................................................... 18
11.12 Amendments; Waiver..................................................... 18
11.13 Joint and Several Liability............................................ 18
11.14 Continued Access to Partnership and Other Financial Information........ 18
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SCHEDULES
Schedule 1.2 Contracts
Schedule 2.2(a) Account
Schedule 2.2(b) Calculation of Base Adjusted Exercise Price, Provisional BNA Page
Credit Payments Increase, Provisional Partnership Capital Expenditures
Increase, Provisional BNA Operating Expenditures Decrease and
Provisional BNA Capital Expenditures Decrease
Schedule 2.6 Allocation of Exercise Price
Schedule 3.4 Pending or Threatened Litigation and Claims
Schedule 3.5 Employees
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PURCHASE AGREEMENT
THIS AGREEMENT is made as of April 30, 2004 between Xxxxxxx News Alliance,
Inc., a Washington corporation ("BNA"), MediaNews Group, Inc. (formerly known as
Affiliated Newspapers Investments, Inc.), a Delaware corporation ("MNG"), York
Newspapers Holdings, LLC ("YNHLC"), an indirect wholly-owned subsidiary of MNG,
MediaNews Group Interactive, Inc., an indirect wholly-owned subsidiary of MNG
("MNGI"), and York Daily Record LLC, a newly-formed Affiliate of MNG ("Record
LLC" and, together with MNG, YNHLC, and MNGI, the "Purchasers"). Capitalized
terms not otherwise defined in this Agreement are used as defined in Exhibit A
hereto.
WITNESSETH:
WHEREAS, BNA currently owns a 42.5% general partnership interest (the
"Partnership Interest") in The York Newspaper Company, a Pennsylvania general
partnership (the "Partnership");
WHEREAS, pursuant to a Joint Operating Agreement entered into January 13,
1989 (the "Joint Operating Agreement") the partnership currently publishes the
York Daily Record, The York Dispatch and the York Sunday News;
WHEREAS, pursuant to a Put/Call Option Agreement entered into September
17, 1996 (the "Put/Call Option Agreement") by and between BNA and York
Newspapers Inc., a Delaware corporation and a wholly-owned subsidiary of MNG
("YNI"), BNA granted to YNI a call option (the "Call Option") to acquire the
Partnership Interest and all of BNA's right, title and interest in the York
Daily Record masthead and various other assets relating thereto described in the
Put/Call Option Agreement (collectively, the "Rights/Assets Subject to Option");
WHEREAS, YNI notified BNA on March 30, 2004 that it had, subject to the
terms contained in Put/Call Option Agreement, elected to exercise the Call
Option and, thereafter, YNI assigned to MNG its rights under the Put/Call Option
Agreement; and
WHEREAS, MNG and BNA desire to consummate their agreement with respect to
the purchase and sale of the Rights/Assets Subject to Option;
NOW, THEREFORE, in consideration of the payments herein provided, and the
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale. Upon the terms set forth in this Agreement, and
for the consideration set forth in Section 2.1, BNA does hereby sell, transfer,
assign and deliver to YNHLC and MNGI, and MNG does hereby cause YNHLC and MNGI
to purchase from BNA, all right, title and interest of BNA in and to the
Rights/Assets Subject to Option, free and clear of all Liens (except for
restrictions contained in the Joint Operating Agreement and the Partnership
Agreement), as more particularly described below and pursuant to the Ancillary
Documents:
(a) BNA does hereby sell, transfer, assign and deliver to YNHLC,
and YNHLC does hereby purchase from BNA, all right, title and interest of BNA in
and to the following assets, free and clear of all Liens (except for
restrictions contained in the Joint Operating Agreement and the Partnership
Agreement):
(i) the Partnership Interest and all right, title and
interest of BNA in, to and under the Partnership Agreement;
(ii) to the extent, if at all, held by BNA, rights to all
subscription, bulk sales, circulation, dealer and sub-dealer lists of the York
Daily Record, together with all records, gallery cards and other lists relating
to or concerning routes, daily draws by editions, distribution, delivery, sale,
returns and prepaid subscriptions of the York Daily Record in any territory, all
lists of any dealers and agencies served by all distribution methods in all
cities and towns served by the York Daily Record (it being BNA's understanding
and belief that all of such foregoing items are held by the Partnership in its
own name, and it being understood by both parties that all such lists, records,
and other above-described items are in the possession of the Partnership and not
BNA),
(iii) to the extent, if at all, held by BNA, rights to all
advertiser lists and related advertiser information relating to the York Daily
Record, including without limitation, lists of all advertising contracts
(including the dates of such contracts), names and addresses of advertisers,
space contracted for, frequency of insertions, rates per line, expiration dates
and any special conditions, requirements or publication orders with advertisers,
with the dates thereof, and any special agreements or commitments with
advertisers, and all insertion orders (it being BNA's understanding and belief
that all of such foregoing items are held by the Partnership in its own name,
and it being understood by both parties that all such lists and other
above-described information are in the possession of the Partnership and not
BNA),
(iv) the library and morgue of the York Daily Record;
(v) all rights of BNA and/or the York Daily Record under all
Contracts which are used or held for use in the operation of the news and
editorial functions controlled by BNA relative to the York Daily Record,
including, but not limited to, those relating to news services, photo services,
wire services, features, cartoons, comics and other news and editorial material,
all of which Contracts, other than those to which the Partnership is already a
signatory, are listed in the Schedule appended as Schedule 1.2 to this
Agreement, which schedule also contains a true and complete copy of each such
Contract (all such Contracts are hereinafter referred to as "Assumed
Contracts");
(vi) to the extent, if at all held by BNA, all right, title
and interest of BNA in and to all copyrights and applications related to any
material published in issues of the York Daily Record on or prior to the
Effective Date (collectively, the "Assigned Copyrights"), as well as to any
claims and demands, recoverable in law or equity for past and future
infringements of any of said copyrights;
(vii) all of BNA's rights in all assets of whatever kind or
nature (other than the assets described in Section 1.1(b), the Lease and the
Union Agreement), which are used,
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or held for use in, the news and editorial functions conducted by BNA relative
to the York Daily Record (collectively, the "Other York Daily Record
Intangibles").
The foregoing shall not include cash on hand, bank deposits or accounts, or
other similar funds or accounts.
(b) BNA does hereby sell, transfer, assign and deliver to MNGI,
and MNGI does hereby purchase from BNA, (i) all right, title and interest of BNA
to the masthead of the York Daily Record and all intangible rights related
thereto including, but not limited to, all related trademarks, service marks and
URL's, and all proceeds thereof and goodwill associated therewith (collectively,
the "York Daily Record Masthead"), (ii) to the extent, if at all held by BNA,
all right, title and interest of BNA in and to all trademarks, service marks,
trade identification, trade names, titles and slogans related to material
published in, or otherwise utilized in connection with, the York Daily Record on
or prior to the Effective Date, and all proceeds thereof and goodwill associated
therewith (collectively, the "Other Assigned Trademarks"), and (iii) all rights
to xxx with respect to past and future infringements of any of the foregoing,
free and clear of all Liens (except for restrictions contained in the Joint
Operating Agreement and the Partnership Agreement).
1.2 Assumption of Liabilities. YNHLC does hereby assume all liabilities
and obligations of BNA to the extent arising from and after the Closing with
respect to periods after the Closing under the Partnership Agreement and the
Assumed Contracts. Notwithstanding the foregoing, YNHLC shall not assume or be
responsible for any liability or obligation under the Partnership Agreement or
any Assumed Contract to the extent arising out of a breach or default by BNA
under the Partnership Agreement or any Assumed Contract (including any event
prior to the Closing that with the passage of time or the giving of notice, or
both, would become such a breach or default). Liabilities assumed by YNHLC
pursuant to this Section 1.2 are referred to herein as "Assumed Liabilities."
ARTICLE II
EXERCISE PRICE; POST-CLOSING PARTNERSHIP DISTRIBUTION
2.1 Exercise Price. The aggregate consideration for the Rights/Assets
Subject to Option (the "Exercise Price") is the sum of Thirty-Seven Million Two
Hundred Four Thousand Seven Hundred Eight Dollars ($37,204,708) (the "Base
Adjusted Exercise Price") as further adjusted to reflect the various exercise
price adjustments set forth in subsections (1) - (4) of Article V of the
Put/Call Option Agreement (the "Exercise Price Adjustments").
2.2 Payment. MNG does pay herewith, or cause to be paid, to BNA, by wire
transfer of immediately available funds, to the account or accounts set forth on
Schedule 2.2(a), so much of the Exercise Price as is equal to the Base Adjusted
Exercise Price of Thirty-Seven Million Two Hundred Four Thousand Seven Hundred
Eight Dollars ($37,204,708), (a) plus a provisional BNA Page Credit payments
increase of $1,156,491 calculated in accordance with the provisions of
subsection (3) of Article V of the Put/Call Option Agreement (the "Provisional
BNA Page Credit Payments Increase") and a provisional Partnership capital
expenditures increase of Zero Dollars ($0.00), calculated in accordance with the
provisions of subsection (4) of Article V of the Put/Call Option Agreement (the
"Provisional Partnership
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Capital Expenditures Increase") and (b) less a provisional BNA annual operating
expenditure decrease of Zero Dollars ($0.00) calculated in accordance with the
provisions of subsection (1) of Article V of the Put/Call Option Agreement (the
"Provisional BNA Operating Expenditures Decrease") and a provisional BNA average
annual capital expenditure decrease of Eighty-Seven Thousand Thirty Seven
Dollars ($87,037) calculated in accordance with the provisions of subsection (2)
of Article V of the Put/Call Option Agreement (the "Provisional BNA Capital
Expenditures Decrease"), resulting in a total cash payment of Thirty-Eight
Million Two Hundred Seventy-Four Thousand One Hundred Sixty-Two Dollars
($38,274,162) made concurrent with execution of this Agreement. A Schedule
setting forth the calculation of the Base Adjusted Exercise Price, the
Provisional BNA Page Credit Payments Increase, the Provisional BNA Operating
Expenditures Decrease, the Provisional BNA Capital Expenditures Decrease and the
Provisional Partnership Capital Expenditures Increase is attached hereto as
Schedule 2.2(b).
2.3 Post-Closing Adjustments to the Exercise Price.
(a) On or prior to May 31, 2004, BNA shall deliver to MNG a
statement summarizing in reasonable detail, for the period commencing March 1,
2004 and ending April 30 2004, BNA's operating and capital expenditures relative
to the York Daily Record and the Page Credit payments for that period received
and/or due to be received by BNA from the Partnership.
(b) Within fifteen (15) days of MNG's receipt of the statement
from BNA described in Section 2.3(a), MNG will prepare and deliver to BNA a
statement setting forth in reasonable detail its calculation of the BNA Page
Credit payments adjustment contemplated by subsection (3) of Article V of the
Put/Call Option Agreement (the "Final BNA Page Credit Payments Adjustment"), the
BNA operating expenditures adjustment contemplated by subsection (1) of Article
V of the Put/Call Option Agreement (the "Final BNA Operating Expenditures
Adjustment"), the BNA capital expenditures adjustment contemplated by subsection
(2) of Article V of the Put/Call Option Agreement (the "Final BNA Capital
Expenditures Adjustment") and the Partnership capital expenditures increase, if
any, contemplated by subsection (4) of Article V of the Put/Call Option
Agreement (the "Final Partnership Capital Expenditures Adjustment"), which
statement shall hereinafter be referred to as the "Final Exercise Price
Adjustment Schedule."
(c) BNA shall notify MNG in writing within thirty (30) days after
receipt of the Final Exercise Price Adjustment Schedule whether it accepts the
Final Exercise Price Adjustment Statement or whether there is a dispute as to an
item reflected thereon. Such notice will set forth BNA's objections, if any, to
the Final Exercise Price Adjustment Schedule in reasonable detail. The failure
by BNA to give MNG such notice within such period shall be deemed to constitute
BNA's acceptance of the Final Exercise Price Adjustment Schedule. The parties
will use all reasonable efforts to resolve any such dispute, but if such dispute
cannot be resolved by the parties within thirty (30) days after BNA gives notice
of any such dispute, such dispute shall be referred to Deloitte & Touche LLP
(the "Selected Accountants") for resolution. In the event that the Selected
Accountants shall decline to act, the parties shall appoint a mutually
acceptable independent certified public accounting firm to act as the Selected
Accountants. If the parties are unable to agree upon a mutually acceptable
accounting firm, either party may apply to court for appointment of a neutral
independent certified public accounting firm to act as the Selected Accountants.
The determination of the Selected
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Accountants shall be conclusive and binding on each party. One-half (1/2) of the
fees of the Selected Accountants shall be borne by BNA and one-half (1/2) shall
be borne by MNG.
(d) If the Final BNA Page Credit Payments Adjustment, the Final
BNA Operating Expenditures Adjustment, the Final BNA Capital Expenditures
Adjustment and/or the final Partnership Capital Expenditures Adjustment, as
finally determined, are greater or less than the Provisional BNA Page Credit
Payments Increase, the Provisional BNA Operating Expenditures Decrease, the
Provisional BNA Capital Expenditures Decrease and/or the Provisional Partnership
Capital Expenditure Increase set forth on Schedule 2.1 hereto, the Exercise
Price shall be adjusted accordingly, and to the extent that the Exercise Price,
as so adjusted, is less than or greater than the portion of the Exercise Price
paid by MNG to BNA at Closing, BNA or MNG, as appropriate, shall pay the amount
of such difference to the other, by wire transfer of immediately available
funds, to such account designated by MNG or BNA, as the case may be, on the
later of (i) the second (2nd) Business Day after acceptance by BNA of the Final
Exercise Price Adjustment Statement or (ii) the second (2nd) Business Day
following resolution (as contemplated by paragraph (c) above) of any dispute
concerning the Final Exercise Price Adjustment Schedule.
2.4 Post-Closing Partnership Distribution to BNA. On or prior to May 31,
2004, MNG shall cause the Partnership to distribute to BNA in cash or its
equivalent (a) an amount equal to the Page Credits due to be paid to BNA under
the Joint Operating Agreement for the period April 1, 2004 - April 30, 2004, (i)
as increased by the amount, if any, by which forty-two and five tenths percent
(42.5%) of the Excess Page and Color charges owed by both BNA and YNI to the
Partnership for such period exceeds the Excess Page and Color Charges owed the
Partnership solely by BNA for such period, (ii) as decreased by the amount, if
any, by which the Excess Page and Color Charges owed the Partnership for the
period April 1, 2004 - April 30, 2004 by BNA alone exceeds forty-two and five
tenths percent (42.5%) of the Excess Color and Page Charges owed the Partnership
for such period by both BNA and YNI, and (b) an amount equal to BNA's additional
share of Partnership distribution resulting from the adjustment for deposits in
transit credited to the Partnership for the period April 1, 2004 - April 30,
2004 pursuant to Article IX.
2.5 Post-Closing Audit. The Partnership shall, at BNA's election, be
audited or subjected to such lesser or partial audit or analysis determined by
BNA to be appropriate, by Ernst & Young LLP for the period from July 1, 2003
through April 30, 2004 and with respect to all matters appropriate to a final
accounting for the period of BNA's status as a partner of the Partnership. The
audit shall be conducted consistent with the audits of the Partnership for prior
years, including analysis of related party transactions, and shall be completed
by September 30, 2004. If Ernst & Young LLP shall decline or fail to perform
such audit or analysis, Deloitte & Touche LLP shall do so; if Deloitte & Touche
LLP shall decline or fail to perform such audit or analysis, BNA may select
another national or significant regional independent certified public accounting
firm to do so. One-half (1/2) of the fees of any such accounting firm that shall
perform the services outlined herein shall be borne by BNA and one-half (1/2)
shall be borne by MNG. If the audit produces any adjustments in the amounts that
should have been paid to BNA hereunder, the Purchasers shall cause the
Partnership immediately to make an additional distribution to BNA to provide BNA
with the appropriate adjusted amount. Following such audit, MNG (subject to
causing the Partnership to make any additional distribution to BNA
5
provided for in this Section 2.5) and BNA shall retain their rights with regard
to financial and accounting matters they consider unresolved, and neither party
shall be deemed conclusively bound by the results of the audit.
2.6 Purchase Price Allocation. The Exercise Price (and all other
capitalizable costs) shall be allocated among the Rights/Assets Subject to
Option (as well as the allocable portion of the Partnership's assets underlying
the Partnership Interest) in accordance with Sections 1060, 751 and 755 of the
Internal Revenue Code of 1986, as amended (the "Code") and the Treasury
Regulations promulgated thereunder (and any similar provision of state, local or
foreign law, as appropriate) (the "Allocation"), which Allocation shall be set
forth on a Schedule 2.6 to be appended to this Agreement after the Effective
Date. BNA and the Purchasers shall negotiate in good faith to reach agreement as
to the Allocation (and the Purchasers shall supply to BNA all such information
as BNA shall reasonably request so that BNA may knowledgeably discharge its
obligation). If the parties are unable to agree upon the Allocation within
thirty (30) days following the Effective Date, then the parties shall within
fifteen (15) days thereafter agree upon and retain a qualified independent
professional appraiser with substantial experience appraising assets used in the
newspaper industry, whose written determination of the fair market values of the
Rights/Assets Subject to Option (as well as the allocable portion of the
Partnership's assets underlying the Partnership Interest) shall be used in
completing the Allocation and shall be binding upon all of the parties hereto.
The cost of the appraisal shall be borne equally by BNA and the Purchasers. The
parties shall report, act and file tax returns (including, but not limited to,
Form 8594, Asset Acquisition Statement Under Section 1060, and Form 1065, U.S.
Return of Partnership Income, for the Partnership for the taxable year in which
the Closing occurs) in all respects and for all purposes consistent with the
Allocation. None of BNA or any of the Purchasers shall take any position
(whether in audits, on a tax return or otherwise) which is inconsistent with the
Allocation unless required to do so by applicable law. Notwithstanding the
foregoing, if BNA and the Purchasers are unable to agree upon the Allocation and
are further unable to agree upon the selection of a qualified appraiser, as
described above, to determine the Allocation within forty-five (45) days
following the Effective Date, or by such later date as is agreed to by the
parties, each of BNA and the Purchasers may file Form 8594, and any federal,
state, local and foreign tax returns, allocating the Exercise Price (and all
other capitalizable costs) among the Rights/Assets Subject to Option (as well as
the allocable portion of the Partnership's assets underlying the Partnership
Interest) in the manner each believes appropriate, provided such allocation is
reasonable and in accordance with Sections 1060, 751 and 755 of the Code and the
Treasury Regulations promulgated thereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BNA
BNA hereby represents and warrants to MNG as follows:
3.1 Organization; Good Standing. BNA is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Washington.
3.2 Capacity to Sell; Authorization. BNA has full corporate power and
authority to execute, deliver and perform this Agreement and the Ancillary
Documents to which it is a party and to consummate the transactions contemplated
hereby and thereby to be
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consummated by BNA. The execution, delivery and performance by BNA of this
Agreement and the Ancillary Documents to which it is a party and the
consummation by BNA of the transactions contemplated hereby and thereby have
been authorized by all necessary action on the part of BNA. This Agreement has
been duly executed and delivered by BNA. This Agreement constitutes the legal,
valid, and binding obligation of BNA, enforceable against BNA in accordance with
its terms.
3.3 Ownership of Right/Assets Subject to Option. BNA has, and at the
Closing will convey to Purchasers, good and marketable title to all of the
Rights/Assets Subject to Option, free and clear of all Liens (except for
restrictions contained in the Joint Operating Agreement and the Partnership
Agreement).
3.4 Pending or Threatened Litigation and Claims. Except as may be
disclosed in Schedule 3.4 hereto, there is no action, suit, proceeding or other
litigation or, to the knowledge of BNA, investigation or review pending against
BNA or any Affiliate of BNA, or any agent or employee of BNA (collectively, a
"BNA Party") at law or in equity, by or before any court or arbitrator or any
other Governmental Authority relating to the York Daily Record and to the
knowledge of BNA, no such action, suit, proceeding or other litigation or
investigation or review has been threatened against any BNA Party. No BNA Party
is to the knowledge of BNA subject to any judgment, decree, writ, injunction or
order of any court or arbitrator or any other Governmental Authority relating to
the York Daily Record. For purposes of this Section 3.4, "knowledge of BNA"
shall mean the actual knowledge of the executive officers of BNA and no other
persons.
3.5 Employees; Labor Relations. Schedule 3.5 sets forth a complete and
correct list of all employees of BNA engaged in news and editorial functions
relative to the York Daily Record, other than Xxxxxx Xxxxxx who, for the purpose
of this Agreement shall not be considered a York Daily Record Employee except to
the extent that the Purchasers shall (and the Purchasers hereby covenant to)
afford him the opportunity to exercise COBRA rights to continue his health
insurance coverage at his own expense through the plan that will be available to
employees generally (collectively, the "York Daily Record Employees" and
individually a "York Daily Record Employee"), including for each such person his
or her (i) name, (ii) job title, (iii) whether covered by the Union Agreement,
(iv) status as a full-time, part-time or temporary employee and (v) dates of
employment, (vi) length of service, (vii) accrued vacation and sick leave, and
(viii) employee benefit coverages (e.g., medical, dental, optical, life and
accidental death, dependent care), as of the date or dates reflected in such
schedule.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MNG
The Purchasers hereby represent and warrant to BNA as follows:
4.1 Organization; Good Standing. MNG and MNGI are each corporations duly
organized, validly existing, and in good standing under the laws of the state of
Delaware. YNHLC is a limited liability company duly organized, validly existing,
and in good standing under the laws of the state of Delaware. Record LLC is a
limited liability company duly organized, validly existing, and in good standing
under the laws of the state of Delaware.
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4.2 Capacity; Authorization. Each of the Purchasers has full corporate
power and authority to execute, deliver and perform this Agreement and each of
the Purchasers has full corporate or limited liability company power and
authority to execute, deliver and perform each of the Ancillary Documents to
which it is a party and to consummate the transactions contemplated hereby and
thereby to be consummated by such Purchaser. The execution, delivery and
performance by each Purchaser of this Agreement and of each of the Ancillary
Documents to which it is a party, and the consummation by each of the Purchasers
of the transactions contemplated hereby and thereby have been authorized by all
necessary action on the part of such Purchaser. This Agreement has been duly
executed and delivered by each Purchaser. This Agreement constitutes the legal,
valid, and binding obligation of the Purchasers, enforceable against each
Purchaser in accordance with its terms.
4.3 Assignment of Put-Call Option Agreement. YNI has assigned to the
Purchasers all of YNI's rights under the Put-Call Option Agreement, and the
Purchasers have all of the right, title, and interest formerly held by YNI in
such agreement, with the authority to carry out the transactions contemplated
thereby without the participation, consent, or approval of YNI.
ARTICLE V
MUTUAL COVENANTS OF THE PARTIES
5.1 Mutual Covenants. MNG covenants and agrees with BNA, and BNA
covenants and agrees with MNG, that:
(a) Newspaper Preservation Act. BNA and MNG shall timely provide
all notices with respect to the consummation of the transactions contemplated by
this Agreement required under the Newspaper Preservation Act, as amended.
(b) Cooperation. BNA, on the one hand, and MNG, on the other hand,
will promptly give notice to the other upon becoming aware that any
investigation, review, action, suit or other proceeding is pending or threatened
by or before any court or arbitrator, or any other Governmental Authority, in
each case, with respect to the transactions contemplated by this Agreement. BNA,
on the one hand, and MNG, on the other hand, (i) will cooperate with each other
in connection with the prosecution, investigation or defense of any such
investigation, review, action, suit or proceeding, (ii) will supply promptly all
information reasonably and legally requested by the other, by any such court or
arbitrator or other Governmental Authority or by any party to any such
investigation, review, action, suit or proceeding and (iii) will each use their
reasonable efforts to cause any such investigation, review, action, suit or
proceeding to be determined as promptly as practicable and in a manner which
does not impact adversely on, and is consistent with, the transactions
contemplated by this Agreement; provided, however, that nothing in this
subsection 5.1(b) shall require any party to share costs, including legal fees
and expenses, incurred by another in connection with such activities.
(c) Announcements. Except as may be required by applicable Legal
Requirements, no party (or any Affiliate thereof) will make a public
announcement of the transactions contemplated hereby without the prior consent
of MNG, in the case of an
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announcement by BNA, or BNA in the case of an announcement by MNG, such consent
not to be unreasonably withheld or delayed.
(d) Further Assurances. From time to time hereafter and without
further consideration, the parties will execute and deliver, or arrange for the
execution and delivery of, such other instruments of conveyance and transfer or
other instruments or documents and take or arrange for such other actions as may
reasonably be requested to complete more effectively any of the transactions
provided for in this Agreement.
ARTICLE VI
REAL PROPERTY LEASE
BNA does hereby assign to the Partnership, and the Purchasers shall cause
the Partnership to assume from BNA, all liabilities and obligations of BNA to
the extent arising from and after the Closing with respect to future periods
under the existing lease (the "Real Property Lease") for the office facilities
utilized for the conduct of the news and editorial functions of the York Daily
Record. Notwithstanding the foregoing, the Partnership shall not assume or be
responsible for any liability or obligation under the Real Property Lease to the
extent arising out of a breach or default by BNA under the Real Property Lease
(including any event prior to the Closing that with the passage of time or the
giving of notice, or both, would become such a breach or default). The
assignment and assumption of the Real Property Lease described in this Article
VI is evidenced by the Real Property Lease Assignment referred to in Section
8.2(e) below. The Purchasers hereby agree to be responsible to BNA for the
Partnership's assumption of the liabilities and obligations of BNA with respect
to the Real Property Lease.
ARTICLE VII
EMPLOYEE MATTERS
7.1 Union Agreement; Employment. Concurrent herewith, MNG does hereby
cause Record LLC, and Record LLC confirms its concurrent action, (i) to assume
the Union Agreement, (ii) to offer employment to each of the York Daily Record
Employees employed by BNA pursuant to such agreement immediately prior thereto,
upon the terms set forth in the Union Agreement, (iii) to offer employment to
all other York Daily Record Employees employed by BNA immediately prior thereto
upon terms no less favorable, in the aggregate, than those upon which MNG and
its Affiliates then employs persons to perform comparable news and editorial
functions relative to The York Dispatch and the York Sunday News and (iv) to
afford such employees appropriate past service credit for employee benefit
purposes for their pre-Effective Date employment relative to the York Daily
Record. MNG and Record LLC do hereby assume all responsibility and obligation to
notify the York Daily Record Employees and the Guild of this transaction and
York Record LLC's assumption of the Union Agreement and to comply with all
notice requirements under law or under the Union Agreement, and the parties
agree that BNA shall have no responsibility therefor.
7.2 Indemnification. MNG shall indemnify and hold harmless BNA from any
and all obligations and associated expenses, including attorneys' fees, that may
be incurred as a result of claims asserted by any York Daily Record Employees or
the Guild (including claims for
9
severance or other compensation of any York Daily Record Employee associated
with the occurrence of this transaction and the transfer of their employment
from BNA to Record LLC (the "Termination Claims")) as a result or in connection
with (i) any failure by MNG or Record LLC to perform and fully discharge any
undertaking set forth in Section 7.1, (ii) any failure of the Purchasers to
provide to any such employees health benefits subsequent to the Effective Date
comparable to the health benefits provided to such employees by BNA prior to the
Effective Date, or (iii) the termination as of the Closing of any York Daily
Record Employee's employment or other relationship with BNA and/or the notice
(or lack thereof), timing or procedures associated therewith. Such indemnity
shall extend to any COBRA or severance obligations owed by BNA to any such
employee (including, as to COBRA only, Xxxxxx Xxxxxx).
7.3 Assumption of Obligations to Employees. Record LLC assumes and
agrees to be responsible for any liabilities or other obligations to the York
Daily Record Employees covered by the Union Agreement under the Union Agreement
and to the Guild to the extent arising from and after the Effective Date with
respect to periods after the Effective Date (including the Termination Claims
for which MNG is providing indemnification pursuant to Section 7.1 above).
Notwithstanding the foregoing, Record LLC shall not assume or be responsible for
any liability or obligation under the Union Agreement to the extent arising out
of a breach or default by BNA under the Union Agreement (including any event
prior to the Closing that with the passage of time or the giving of notice, or
both, would become such a breach or default) other than the Termination Claims.
The assignment and assumption of the Union Agreement described in this Article
VII shall be evidenced by the Union Agreement Assignment and Assumption
Agreement referred to in Section 8.2(f) below.
7.4 No Employee Right. Nothing in this Article VII or elsewhere in this
Agreement shall be construed as conferring upon any York Daily Record Employee
any rights or remedies under this Agreement (including without limitation under
this Section 7.4).
ARTICLE VIII
THE CLOSING
8.1 Effective Date and Time. The parties agree that the consummation of
this Agreement and the transactions contemplated hereby (the "Closing") shall be
deemed to be effective between the parties as of 11:59 p.m. (E.S.T.) on April
30, 2004 and the Closing shall be deemed to have occurred on April 30, 2004,
which date shall be the "Effective Date" of this Agreement and the transactions
contemplated hereby.
8.2 BNA's Closing Documents. Concurrently herewith, BNA delivers to the
Purchasers the following:
(a) an assignment and assumption agreement, pursuant to which (i)
all right, title and interest of BNA in and to the Partnership is transferred or
assigned to YNHLC and (ii) YNHLC assumes the Assumed Liabilities (the
"Partnership Interest Assignment and Assumption Agreement"), duly executed by
BNA;
10
(b) bills of sale and assignment transferring to YNHLC and MNGI,
as applicable, all right, title and interest of BNA in and to the assets
described in (x) clauses (ii) through (vii) of Section 1.1(a) and (y) Section
1.1(b), duly executed by BNA;
(c) instruments of assignment to MNGI of all trademarks, included
in the York Daily Record Masthead and the Other Assigned Trademarks, duly
executed by BNA;
(d) instruments of assignment to YNHLC of all Assigned Copyrights,
duly executed by BNA;
(e) an assignment and assumption agreement with respect to the
Real Property Lease (the "Real Property Lease Assignment"), duly executed by
BNA;
(f) an assignment and assumption agreement with respect to the
Union Agreement (the "Union Agreement Assignment and Assumption Agreement"),
duly executed by BNA;
(g) copies of resolutions adopted by the Board of Directors of BNA
certified as of the Effective Date by the Secretary of BNA, evidencing the
authorizations described in Section 3.2;
(h) such other documents or instruments as MNG reasonably requests
to effect the transactions contemplated hereby; and
(i) possession of the Rights/Assets Subject to Option.
8.3 Purchasers' Closing Documents. Concurrent with the execution and
delivery of this Agreement, MNG is paying, or causing to be paid, the portion of
the Exercise Price specified to be paid at the Closing in Section 2.2 of this
Agreement, by wire transfer of immediately available funds. In addition, MNG
delivers herewith to BNA the following instruments and documents:
(a) the Partnership Interest Assignment and Assumption Agreement
duly executed by YNHLC, the Real Property Lease Assignment duly executed by the
Partnership, and the Union Agreement Assignment and Assumption Agreement duly
executed by Record LLC;
(b) copies of resolutions adopted by the Board of Directors or
other governing body of each of the Purchasers, certified as of the Effective
Date by the Secretary of such Purchaser, evidencing the authorizations described
in Section 4.2; and (c) such other documents or instruments as BNA reasonably
requests to effect the transactions contemplated hereby.
ARTICLE IX
PARTNERSHIP DISTRIBUTION
Concurrent with the execution of this Agreement and the Closing, the
Partnership is (a) paying to BNA and YNI the management fees due them under the
Partnership Agreement for
11
the period April 1, 2004 - April 30, 2004, (b) paying to BNA and YNI the Page
Credits due them under the Joint Operating Agreement for the period March 1,
2004 - March 31, 2004, (c) collecting from both BNA and YNI the Excess Color and
Page charges due from them under the Joint Operating Agreement for the period
July 1, 2003 - March 31, 2004 and (d) distributing to BNA and YNI the Net Cash
From Operations (as defined in the Partnership Agreement), for the month ending
April 30, 2004, it being agreed and understood that, notwithstanding anything to
the contrary in the Partnership Agreement, for such purpose the amount of the
gross cash proceeds from Partnership operations for such month to be retained by
the Partnership to pay or establish reserves for Partnership expenses, debt
payments, capital improvements, replacements and contingencies shall be
$1,000,000. To the extent that the Partnership shall subsequently recognize
adjustments to cash balances of the Partnership as of April 30, 2004, for
deposits in transit on that date, the distribution referenced above in this
Article IX shall be adjusted and the Partnership shall cause an additional
distribution to be made to BNA to reflect that adjustment such that the adjusted
gross cash proceeds retained by the Partnership shall equal $1,000,000. MNG
covenants and agrees to cause the Partnership to reflect and credit to April
receipts any deposits in transit on April 30, 2004, in accordance with the
customary and usual practice of the Partnership and to make such additional
distribution to BNA in accordance with the provisions of Section 2.4.
ARTICLE X
INDEMNIFICATION
10.1 Survival of Representations and Warranties. The representations,
warranties, statements, certifications, covenants and agreements contained in
this Agreement or any Ancillary Document shall survive (and not be affected in
any way by) the Closing or any investigation and inquiry made (or omitted) by or
on behalf of MNG, BNA, or their representatives or any information that any
party or their representatives may receive for a period of two (2) years from
the date hereof; provided, however, that such representations and warranties
shall survive to the extent a claim for indemnification or other claim based
upon, resulting from or arising out of a breach or inaccuracy of such a
representation and warranty is made prior to such date until such claim is
finally resolved.
10.2 BNA's Indemnification Obligation. BNA shall indemnify and hold
harmless MNG, its Affiliates (including YNHLC and MNGI) and the respective
directors, officers and employees of the foregoing Persons ("MNG Indemnified
Parties") from and against any and all claims, damages, liability, and expense
(including reasonable attorneys' fees) imposed on, incurred by or asserted
against any one or more of the MNG Indemnified Parties:
(1) based upon, resulting from or arising out of, or as to which
there was, any breach or inaccuracy of any representation, warranty,
agreement or covenant, in each case made by BNA in this Agreement or any
Ancillary Document;
(2) constituting, based upon, resulting from or arising out of
liabilities or obligations of BNA or its Affiliates with respect to the
news and editorial functions conducted by BNA relative to the York Daily
Record arising with respect to periods prior to the Effective Date,
including, without limitation, liabilities arising out of any suit or
12
claim arising out of the news or editorial content of the York Daily
Record;
(3) arising under or in connection with any employee benefit plan,
policy or arrangement (whether or not subject to ERISA) maintained or
contributed to by BNA or an ERISA Affiliate, relating to the period
through the Effective Date, or
(4) based upon, resulting from or arising out of the use,
occupation or operation through the Effective Date of the real property
leased by BNA pursuant to the Real Property Lease (the "Leased Real
Property"); and
(5) any cost or expense (including, without limitation, settlement
costs and reasonable attorneys', accountants' and experts' fees and court
costs) incurred by MNG Indemnified Parties in connection with any of the
foregoing (including, without limitation, any reasonable cost or expense
incurred by MNG Indemnified Parties in enforcing their rights pursuant to
this Section 10.2).
10.3 MNG's Indemnification Obligation. In addition to the specific
indemnification undertakings of the Purchasers on behalf of BNA set forth
elsewhere in this Agreement, and without limiting such other undertakings, MNG
shall indemnify and hold harmless BNA, its Affiliates and the respective
directors, officers and employees of the forgoing Persons ("BNA Indemnified
Parties") from and against any and all claims, damage, liability and expense
(including reasonable attorneys' fees) imposed on, incurred by or asserted
against any one or more of the BNA Indemnified Parties:
(1) based upon, resulting from or arising out of, or as to which
there was, any breach or inaccuracy of any representation, warranty,
agreement or covenant, in each case made by any Purchaser in or pursuant
to this Agreement, or by any Purchaser in any Ancillary Document; or
(2) with respect to the obligations that have been undertaken or
assumed by the Purchasers, or any of them, pursuant to this Agreement
and/or the Ancillary Documents; or
(3) arising from the operation of the Partnership and/or the
publication of the York Daily Record subsequent to the Effective Date
hereof or
(4) constituting, based upon, resulting from or arising out of
liabilities or obligations of the Purchasers, or any of them, or their
Affiliates with respect to the news and editorial functions conducted by
the Purchasers relative to the York Daily Record arising with respect to
periods subsequent to the Effective Date, including, without limitation,
liabilities arising out of any suit or claim arising out of the news or
editorial content of the York Daily Record; or
(5) arising under or in connection with any employee benefit plan,
policy or arrangement (whether or not subject to ERISA) maintained or
contributed to by any Purchaser or an ERISA Affiliate, relating to the
period after the Effective Date, or
(6) based upon, resulting from or arising out of the use,
occupation or
13
operation after the Effective Date of the Leased Real Property; and
(7) any cost or expense (including, without limitation, settlement
costs and reasonable attorneys', accountants' and experts' fees and court
costs) incurred by BNA Indemnified Parties in connection with any of the
foregoing (including, without limitation, any reasonable cost or expense
incurred by BNA Indemnified Parties in enforcing their indemnification
rights pursuant to this Agreement, including indemnification obligations
of the Purchasers set forth elsewhere as well as those set forth in this
Section 10.3).
No BNA Indemnified Party will be required to make any claim or demand
against any other Person prior to the making of any claim or demand for
indemnification from MNG.
10.4 Procedure for Indemnification Claims.
(a) MNG Indemnified Parties and BNA Indemnified Parties are
referred to herein as "Indemnified Parties," and the Persons from whom
indemnification may be sought pursuant to this Agreement are referred to herein
as "Indemnifying Parties."
(b) If at any time an Indemnified Party determines to assert a
right to indemnification hereunder, the Indemnified Party will give to the
Indemnifying Party written notice of such determination.
(c) Within ten (10) days after receipt of any notice referred to
in paragraph (b) above, the Indemnifying Party will (i) acknowledge in writing
its responsibility for all or part of such matter for which indemnification is
sought under this Article XI, and pay or otherwise satisfy the portion of such
matter as to which responsibility is acknowledged or take such other action as
is satisfactory to the Indemnified Party to provide reasonable assurances to the
Indemnified Parties for the performance of its obligations hereunder, and/or
(ii) give written notice to the Indemnified Party of its intention to dispute or
contest all or part of such responsibility. Upon delivery of such notice of
intention to contest, the parties will negotiate in good faith to resolve as
promptly as possible any dispute as to responsibility for, or the amount of, any
such matter.
(d) Each party hereto shall cooperate in good faith with, make its
relevant files and records available for inspection and copying by, and make its
employees available and otherwise render reasonable assistance to, the other
parties in their defense of any such claims. Each Indemnifying Party shall have
the right, at its sole expense, to control the defense of any claim brought by
any third party (as to which indemnification is sought pursuant to this Article
XI) with counsel of such Indemnifying Party's choice that is reasonably
satisfactory to the Indemnified Party, and shall have the right to settle or
otherwise protect against the imposition of liability with respect to such
claim, in each case if such Indemnifying Party shall have taken the action
described in clause (i) of the first sentence of Section 10.4(c) with respect to
such claim; provided, however, that:
(i) the Indemnified Parties shall be entitled to participate in
the defense of such claim and to employ counsel at their own expense to assist
in the handling of such claim and shall have the right, but not the obligation,
to assert any and all cross-claims and
14
counterclaims they may have;
(ii) such Indemnifying Party shall obtain the prior written
approval of each Indemnified Party before entering into any settlement of any
such claim or ceasing to defend against any such claim, if pursuant to or as a
result of such settlement or cessation, injunctive or other equitable relief
would be imposed against such Indemnified Party or (if such Indemnified Party is
a MNG Indemnified Party) such settlement or cessation could, in the reasonable
opinion of MNG, have an adverse effect upon the business of the York Daily
Record;
(iii) such Indemnifying Party shall not consent to the entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by each claimant or plaintiff to each Indemnified Party
of a release from all liability in respect of such claim;
(iv) at the election of the Indemnified Party, such Indemnifying
Party and Indemnified Party shall have joint control over the defense or
settlement of any such claim, each party to employ counsel at its own expense,
to the extent such claim seeks an order, injunction or other equitable relief
against such Indemnified Party or, if such Indemnified Party is a MNG
Indemnified Party, to the extent such claim could, in the reasonable opinion of
MNG, have an adverse effect upon the business of the York Daily Record; and
(v) with respect claim for indemnification pursuant to Section
10.2(2), the MNG Indemnified Parties shall have the right, at their sole
expense, to control the defense of, and have the right to settle or otherwise
protect against the imposition of liability with respect to, any such claim;
provided, however, that (x) the MNG Indemnified Parties shall obtain the prior
written approval of BNA not to be unreasonably withheld before entering into any
settlement of any such claim (and the refusal to contribute to any proposed
settlement or otherwise expend funds or assume, admit, or accept liability shall
not be considered unreasonable) and (y) to the extent that the MNG Indemnified
Parties have not asserted their rights to assume the defense of any such claim
pursuant to this Section 10.4(d)(v), BNA shall obtain the prior written approval
of MNG before entering into any settlement of any such claim unless such
settlement is purely monetary, with no continuing adverse effect on the business
of the York Daily Record, and provides an unconditional release of the MNG
Indemnified Parties with respect to such claim and does not require an admission
of liability, wrongdoing or fault by any MNG Indemnified Party.
Except for a claim for indemnification pursuant to Section 10.2(2) in
which MNG Indemnified Parties have asserted their rights under Section
10.4(d)(v) above, in the event the Indemnifying Party shall, in the reasonable
judgment of the Indemnified Party, fail adequately and diligently to defend,
contest or otherwise protect against the imposition of any such damages as to
any such claim, the Indemnified Party shall have the right, but not the
obligation, to defend, contest or assert any cross-claim or counterclaim or
otherwise protect against such claim and may make any compromise or settlement
thereof and recover from and be indemnified by the Indemnifying Party for the
entire reasonable cost thereof including, without limitation, from legal
expenses, disbursements and all amounts paid as a result of such matter. If the
Indemnifying Party does not take the action described in clause (i) of the first
sentence of
15
Section 10.4(c) with respect to a claim, the Indemnified Party shall, without
limitation of its rights under this Article X, retain sole control over the
defense or settlement of such claim.
Each party hereto shall cooperate in good faith with, make its relevant
files and records available for inspection and copying by, and make its
employees available and otherwise render reasonable assistance to, the other
parties in their defense of any such claims.
(e) The rights of the Indemnified Parties under this Article X are
in addition to all other rights or remedies the Indemnified Parties may have
under this Agreement, the Ancillary Documents, applicable law, or otherwise and
will continue in effect notwithstanding any statute of limitations that would
otherwise bar the exercise of such rights.
ARTICLE XI
GENERAL PROVISIONS
11.1 Expenses. MNG, on the one hand, and BNA, on the other hand, shall
pay their own expenses (including the fees and expenses of their accountants,
advisors, and counsel) in connection with negotiating, preparing, closing and
carrying out this Agreement, the Ancillary Documents and the transactions
contemplated hereby and thereby and with respect to all post-Closing matters,
including but not limited to any investigation or actions taken by any
Governmental Authority.
11.2 Notices. Any notice or other communication required or permitted to
be given hereunder will be in writing and shall be delivered via an overnight
courier such as Federal Express or delivered against receipt (including by
confirmed facsimile transmission), as follows:
(a) In the case of MNG, to:
MediaNews Group, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, XX
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Xxxx LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxx, Xx., Esq.
Facsimile: (000) 000-0000
(b) In the case of BNA, to:
Xxxxxxx News Alliance, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, President
16
and Xxxx X. Xxxxx, Treasurer
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the party may have furnished in writing in
accordance with the provisions of this Section. Any notice or other
communication shall be deemed to have been given, made and received upon
receipt. Either party may change the address to which notices are to be
addressed by giving the other party notice in the manner herein set forth.
11.3 Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania, without regard to any conflicts of law rules or
principles that would result in the application of the laws of another
jurisdiction.
11.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument.
11.5 Headings; Schedules; Exhibits. The headings, subheadings and
captions in this Agreement and in any Exhibit or Schedule hereto are for
reference purposes only and are not intended to affect the meaning or
interpretation of this Agreement. Unless the context clearly indicates
otherwise, references in this Agreement to particular Sections, Articles,
Exhibits or Schedules are references to particular Sections, Articles, Exhibits
or Schedules, as the case may be, of or to this Agreement. All definitions of
terms contained in this Agreement shall be equally applicable to both the
singular and plural forms of the terms defined, unless otherwise indicated.
11.6 Entire Agreement. This Agreement and the Ancillary Documents contain
the entire agreement between the parties hereto with respect to its subject
matter and supersedes all negotiations, prior discussions, agreements,
arrangements, and understandings, written or oral, relating to the subject
matter of this Agreement and the Ancillary Documents and there are no other
covenants, provisions, agreements, representations or warranties, whether
written or oral, among the parties hereto.
11.7 Third-Party Beneficiaries. This Agreement is not intended to confer
upon any other Person any rights or remedies hereunder. The rights of MNG
Indemnified Parties and BNA Indemnified Parties under Article X may be asserted
by MNG and BNA, respectively.
11.8 Assignment. This Agreement and all of the provisions hereof will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned by any party hereto without
the prior written consent of the other
17
party, except that MNG may, at any time, assign all or any part of its right,
title and interest in, to and under this Agreement; provided, however, that any
such assignment will not relieve MNG from its obligations and liabilities
hereunder. Any assignment in violation of this Section 11.8 shall be null and
void.
11.9 Specific Performance. In addition to any other remedies the parties
may have, each party will have the right to enforce the provisions of this
Agreement through injunctive relief or by a decree or decrees of specific
performance.
11.10 Confidentiality. BNA will, and will cause its Affiliates to, at all
times hold in strictest confidence any and all Confidential Information that may
have come or may come into their possession or within their knowledge concerning
the assets, services, processes, business, suppliers, customers and advertisers
of the York Daily Record. In furtherance and not in limitation of the foregoing,
BNA agrees that it will not, and will cause its Affiliates and each of its
employees, agents and representatives, to not for any reason, directly or
indirectly, for themselves or any other Person, use or disclose (x) the
intangible assets described in clauses (ii), (iii) and (vii) of Section 1.1 and
(y) any such Confidential Information. As used in this Section 11.10,
"Confidential Information" shall mean all information, other than information
(x) which is or becomes known to the public, other than through a breach of this
Section 11.10 or (y) is independently developed without regard to Confidential
Information.
11.11 Severability. If any one or more of the provisions of this Agreement
shall be held to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions of this Agreement will not be
affected thereby and the parties will use all reasonable efforts to substitute
one or more valid, legal and enforceable provisions which, insofar as
practicable, implement the purposes and intents hereof. To the extent permitted
by applicable law, each party waives any provision of law which renders any
provision of this Agreement invalid, illegal or unenforceable in any respect.
11.12 Amendments; Waiver. This Agreement may not be amended or modified
except by written agreement of the parties. No breach of any covenant,
agreement, representation or warranty made herein shall be deemed waived unless
expressly waived in writing by the party who might assert such breach.
11.13 Joint and Several Liability. MNG shall be jointly and severally
liable for each of the obligations, liabilities, assumptions, and undertakings
of YNHLC, MNGI, and Record LLC under or pursuant to this Agreement and all of
the Ancillary Documents and for the Partnership's obligations, liabilities,
assumptions and undertakings with respect to the Real Property Lease.
11.14 Continued Access to Partnership and Other Financial Information. For
the seven- (7-) year period immediately following the Effective Date, MNG
undertakes to make available to BNA and its successors, promptly upon request
therefor and, except as otherwise provided in this Agreement, at BNA's expense,
copies of all financial or business records relating to the operation of the
Partnership or the York Daily Record prior to the Effective Date.
18
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered as of the day and year first above written.
XXXXXXX NEWS ALLIANCE, INC.
By: /s/ G. B. Xxxxx
--------------------------------
Name: G. B. Xxxxx
Title: Chief Financial
Officer
MEDIANEWS GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President Chief
Financial Officer
YORK NEWSPAPERS HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President Chief
Financial Officer
MEDIANEWS GROUP INTERACTIVE, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President Chief
Financial Officer
YORK DAILY RECORD LLC
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President Chief
Financial Officer
19
EXHIBIT A
Certain Definitions
"Affiliate" shall mean, with respect to a Person, another Person now or
hereafter, directly or indirectly, through one or more intermediaries,
controlled by, under common control with or which controls, the Person
specified.
"Allocation" shall have the meaning specified in Section 2.6.
"Ancillary Documents" shall mean the Partnership Interest Assignment and
Assumption Agreement, the Real Property Lease Assignment, the Union Agreement
Assignment and Assumption Agreement and the other instruments and documents
contemplated hereby to be executed and delivered at the Closing.
"Assigned Copyrights" shall have the meaning specified in Section
1.1(a)(vi).
"Assumed Contracts" shall have the meaning specified in Section 1.1(a)(v).
"Assumed Liabilities" shall have the meaning specified in Section 1.2.
"Base Adjusted Exercise Price" shall have the meaning specified in Section
2.1.
"BNA" shall have the meaning specified in the Preamble to this Agreement.
"BNA Indemnified Parties" shall have the meaning specified in Section
10.3.
"Business Day" means a day other than Saturday, Sunday or any other day
which commercial banks in New York, New York are authorized or required by law
to close.
"Closing" shall have the meaning specified in Section 8.1.
"COBRA" shall mean Section 4980B(f) of the Code and Sections 601 to 608 of
ERISA.
"Code" shall have the meaning specified in Section 2.6.
"Confidential Information" shall have the meaning specified in Section
11.10.
"Contract" shall mean any agreement, contract, lease, license agreement,
franchise agreement, obligation, instrument or other commitment, arrangement or
understanding of any kind (whether written or oral), including all amendments,
modifications, extensions or renewals of any of the foregoing.
"Effective Date" shall have the meaning specified in Section 8.1.
"ERISA" the Employee Retirement Income Security Act of 1974, as amended.
"ERISA Affiliates" shall mean each trade, business or other organization
(whether or not incorporated) which, together with any BNA and/or the York Daily
Record is treated as a single employer within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Exercise Price" shall have the meaning specified in Section 2.1.
"Exercise Price Adjustments" shall have the meaning specified in Section
2.1.
"Final BNA Capital Expenditures Adjustment" shall have the meaning
specified in Section 2.3.
"Final BNA Operating Expenditures Adjustment" shall have the meaning
specified in Section 2.3.
"Final BNA Page Credit Payments Adjustment" shall have the meaning
specified in Section 2.3.
"Final Exercise Price Adjustment Schedule" shall have the meaning
specified in Section 2.3
"Final Partnership Capital Expenditures Adjustment" shall have the meaning
specified in Section 2.3.
"Governmental Authority" shall mean any national, federal, state,
provincial, county or municipal government, domestic or foreign, any agency,
board, bureau, commission, court, department or other instrumentality of any
such government, or any arbitrator in any case that has jurisdiction over a
party or any of its properties or assets.
"Guild" shall mean The Newspaper Guild, Communication Workers of America.
"Indemnified Parties" shall have the meaning specified in Section 10.4(a).
"Indemnifying Parties" shall have the meaning specified in Section
10.4(a).
"Joint Operating Agreement" shall have the meaning specified in the
recitals to this Agreement.
"Leased Real Property" shall have the meaning specified in Section
10.2(4).
"Legal Requirement" shall mean any judgment, decree, injunction, order,
writ, ruling, law, ordinance, statute, rule, regulation, code or other
requirement of any Governmental Authority, or the common law.
"Liens" shall mean any claims, liens, pledges, encumbrances, mortgages,
charges, security interests, options, or any other rights or interests
whatsoever.
"MNG" shall have the meaning specified in the Preamble to this Agreement.
"MNGI" shall have the meaning specified in the Preamble to this Agreement.
2
"MNG Indemnified Parties" shall have the meaning specified in Section
10.2.
"Other Assigned Trademarks" shall have the meaning specified in Section
1.1(b).
"Other York Daily Record Intangibles" shall have the meaning specified in
Section 1.2(a)(iv).
"Page Credit" shall have the meaning specified in Section 2.4 of the Joint
Operating Agreement.
"Partnership" shall have the meaning specified in the recitals to this
Agreement.
"Partnership Agreement" shall mean The York Newspaper Partnership
Agreement, dated as of January 13, 1989, by and between YNI and BNA, as
successor in interest to York Daily Record, Inc.
"Partnership Interest" shall have the meaning specified in the recitals to
this Agreement.
"Partnership Interest Assignment and Assumption Agreement" shall have the
meaning specified in Section 8.2(a).
"Person" shall mean and include an individual, a corporation, a
partnership (general or limited), a joint venture, an association, a trust or
any other organization or entity, including a government or political
subdivision or an agency or instrumentality thereof.
"Provisional BNA Capital Expenditures Decrease" shall have the meaning
specified in Section 2.2.
"Provisional BNA Operating Expenditures Decrease" shall have the meaning
specified in Section 2.2.
"Provisional BNA Page Credit Payments Increase" shall have the meaning
specified in Section 2.2.
"Provisional Partnership Capital Expenditures Increase" shall have the
meaning specified in Section 2.2.
"Purchasers" shall have the meaning specified in the Preamble to this
Agreement.
"Put/Call Option Agreement" shall have the meaning specified in the
recitals to this Agreement.
"Real Property Lease" shall have the meaning specified in Article VI.
"Real Property Lease Assignment" shall have the meaning specified in
Section 8.2(e).
"Rights/Assets Subject to Option" shall have the meaning specified in the
recitals to this Agreement.
3
"Selected Accountants" shall have the meaning specified in Section 2.3(c).
"Termination Claims" shall have the meaning specified in Section 7.2.
"Union Agreement" shall mean the Agreement, dated August 19, 2002, between
the York Daily Record and the Guild.
"Union Agreement Assignment and Assumption Agreement" shall have the
meaning specified in Section 8.2 (f).
"YNHLC" shall have the meaning specified in the Preamble to this
Agreement.
"YNI" shall have the meaning specified in the recitals to this Agreement.
"York Daily Record Employees" shall have the meaning specified in Section
3.5.
"York Daily Record Masthead" shall have the meaning specified in Section
1.1(b).
4
[Side Letter]
MediaNews Group, Inc.
0000 Xxxxxxxx
Xxxxxx Xxxxxxxx 00000
May 5, 2004
Xxxxxxx News Alliance, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, President
and Xxxx X. Xxxxx, Treasurer
Ladies and Gentlemen:
Reference is made to (x) the Purchase Agreement, dated as of April 30, 2004 (the
"Purchase Agreement"), between Xxxxxxx News Alliance, Inc., a Washington
corporation ("BNA"), and MediaNews Group, Inc., a Delaware corporation ("MNG"),
York Newspapers Holdings, LLC, a Delaware limited liability company ("YNHLC"),
MediaNews Group Interactive, Inc., a Delaware corporation ("MNGI"), and York
Daily Record LLC, a Delaware limited liability company ("Record LLC" and,
together with MNG, YNHLC, and MNGI, the "Purchasers") and (y) the Amended and
Restated Joint Operating Agreement dated as of April 30, 2004 (the "JOA") by and
between York Newspapers, Inc. ("YNI"), York Newspapers Holdings, Inc. ("YNHI"),
both of which are Delaware corporations, The York Newspaper Company, a
Pennsylvania general partnership (the "General Partnership"), York Newspapers
Holdings, L.P., a Delaware limited partnership (the "Limited Partnership"), and
York Dispatch Publishing Company, LLC, a Delaware limited liability company
("YDPC").
The parties hereto agree as follows:
1. News and Editorial Services for the Publication of the York Daily
Record. Notwithstanding anything to the contrary in the JOA, on and prior to May
5, 2004, BNA shall furnish complete news and editorial services necessary and
appropriate for the publication of the York Daily Record.
2. News and Editorial Services for the Publication of The York
Dispatch. Notwithstanding anything to the contrary in the JOA, on and prior to
May 5, 2004, YNI shall furnish complete news and editorial services necessary
and appropriate for the publication of the The York Dispatch. MNG shall
indemnify and hold harmless BNA, YDPC and their Affiliates and the respective
directors, officers and employees of the forgoing Persons ("BNA Indemnified
Parties") from and against any and all claims, damage, liability and expense
(including reasonable attorneys' fees) imposed on, incurred by or asserted
against any one or more of the BNA Indemnified Parties arising from the
operation of and/or the publication of The York Dispatch for the period
commencing on May 1, 2004 through and including May 5, 2004, including without
limitation, (x) claims based upon, resulting from or arising out of liabilities
or obligations of YNI or its Affiliates with respect to the news and editorial
functions conducted by
YNI relative to The York Dispatch arising solely with respect to such period or
(y) claims with respect to wages or arising under or in connection with any
benefit plan, policy or arrangement (whether or not subject to ERISA) maintained
or contributed to by YNI or an ERISA Affiliate relating to any employee of The
York Dispatch and relating solely to such period. The provisions of Section 10.4
of the Purchase Agreement shall apply to any claims by a BNA Indemnified Party
pursuant to this Section.
3. Employee Matters; Indemnification. Notwithstanding anything to the
contrary in the Purchase Agreement or any Ancillary Document, for purposes of
(x) Article VII and Section 10.2(2), 10.2(3), 10.3(4), 10.3(5) of the Purchase
Agreement and (y) the Union Agreement and Assignment and Assumption Agreement
(1) the "Closing" shall be deemed to have occurred as of 11:59 p.m. (E.S.T.) on
May 5, 2004 and (2) the "Effective Date" shall be deemed to be May 5, 2004.
4. Reimbursement of Certain Employee Obligations. Notwithstanding
anything to the contrary in the Purchase Agreement or any Ancillary Document,
the Purchasers shall promptly reimburse BNA for all reasonably documented
out-of-pocket costs and expenses incurred by BNA with respect to the period
commencing on May 1, 2004 through and including May 5, 2004 with respect to (a)
wages paid to (x) any York Daily Record Employee and (y) the actual cost, not to
exceed $2,500, for the usual and customary compensation and benefits paid to
Xxxxxx Xxxxxx and (b) any amounts paid under or in connection with any employee
benefit plan, policy or arrangement (whether or not subject to ERISA) maintained
or contributed to by BNA or an ERISA Affiliate and solely relating to such
period.
6. Miscellaneous. Except as expressly set forth herein, the Purchase
Agreement and the JOA shall remain in full force and effect and shall be
otherwise unaffected hereby. This letter agreement shall be governed by the laws
of the Commonwealth of Pennsylvania, without regard to any conflicts of law
rules or principles that would result in the application of the laws of another
jurisdiction. The headings in this letter agreement are for reference purposes
only and are not intended to affect the meaning or interpretation of this letter
agreement. This letter agreement may be executed in two or more counterparts,
each of which will be deemed an original, but all of which together shall
constitute but one and the same instrument.
[Remainder of page intentionally left blank.]
-2-
Very truly yours,
MEDIANEWS GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
YORK NEWSPAPERS HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
MEDIANEWS GROUP INTERACTIVE, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
YORK DAILY RECORD LLC
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
YORK NEWSPAPERS, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
-3-
YORK NEWSPAPERS HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
THE YORK NEWSPAPER COMPANY
By: York Newspapers Holdings, L.P.,
its Managing General Partner
By: York Newspapers, Inc.,
its Managing General Partner
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
YORK NEWSPAPERS HOLDINGS, L.P.
By: York Newspapers, Inc.,
its Managing General Partner
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
-4-
Agreed:
XXXXXXX NEWS ALLIANCE, INC.
By: /s/ G. B. Xxxxx
---------------------------------
Name: G. B. Xxxxx
Title: Chief Financial Officer
YORK DISPATCH PUBLISHING COMPANY, LLC
By: /s/ G. B. Xxxxx
---------------------------------
Name: G. B. Xxxxx
Title: Authorized Agent
-5-
