EXHIBIT 10.8
AMENDED AND RESTATED
JOINT OPERATING AGREEMENT
BY AND AMONG
YORK NEWSPAPERS, INC.,
YORK NEWSPAPERS HOLDINGS, INC.,
BOTH OF WHICH ARE DELAWARE CORPORATIONS,
THE YORK NEWSPAPER COMPANY,
A PENNSYLVANIA GENERAL PARTNERSHIP,
YORK NEWSPAPERS HOLDINGS, L.P.,
A DELAWARE LIMITED PARTNERSHIP
AND
YORK DISPATCH PUBLISHING COMPANY, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
APRIL 30, 2004
THIS AMENDED AND RESTATED JOINT OPERATING AGREEMENT is dated as of
April 30, 2004 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 to be formed on May 3, 2004, and which shall,
retroactive to April 30, 2004, assume all of the duties and obligations and
acquire all of the rights and entitlements set forth with respect to such entity
herein ("YDPC").
WHEREAS, York Daily Record, a daily newspaper, will hereafter be published
Monday through Saturday, York Sunday News, a weekly newspaper, will hereafter be
published on Sunday, and The York Dispatch, a daily newspaper, will hereafter be
published Monday through Friday, except for legal holidays, all in York,
Pennsylvania (collectively the "Newspapers");
WHEREAS, YNI, the General Partnership and York Daily Record, Inc., a
Delaware corporation ("YRI"), previously entered into a Joint Operating
Agreement dated January 13, 1989, (the "JOA"), pursuant to which the General
Partnership prior to the date hereof managed and operated the Newspapers, except
for the news and editorial departments of each Newspaper, which have remained
separate and independent;
WHEREAS, YNI and the General Partnership desire to amend various
provisions of the JOA and to restate it in its entirety, and to supplement it,
as herein provided, and YNHI, the Limited Partnership and YDPC desire to become
additional parties to that agreement and YRI desires to cease to be a party to
that agreement;
WHEREAS, simultaneously with the execution of this agreement, YNI,
YDPC and certain other parties are effectuating certain other transactions which
are described herein;
WHEREAS, the purpose and intent of the JOA is to provide a plan of
common operation of the Newspapers, so as to (1) provide efficient newspaper
operations, (2) produce high quality newspapers that are attractive to readers
and advertisers and (3) maintain the separate identities and free editorial and
news voices of the Newspapers; and
WHEREAS, the JOA will continue to maintain as separate and
independent the respective news and editorial operations of the Newspapers
consistent with the requirements of the Newspaper Preservation Act, 15 U.S.C.
Sections 1801 et seq.;
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the parties hereby agree as
follows:
I. THE LIMITED PARTNERSHIP
A. Formation. YNI, YNHI and YDPC shall on the date hereof (1) cause the
formation of the Limited Partnership and (2) enter in a limited partnership
agreement with respect thereto, upon terms mutually agreeable to YNI, YNHI and
YDPC (the "Limited Partnership Agreement").
B. General Partnership Interests of YNI. Upon execution of this
Agreement, and in return for 57.5% of the general partnership interests in the
Limited Partnership (as described in the Limited Partnership Agreement), YNI
shall contribute and hereby does contribute the following to the capital of the
Limited Partnership:
(1) its 57.5% general partnership interests in the General
Partnership;
(2) all of its interests in all intangible assets related to York
Sunday News other than the York Sunday News masthead and all
related trademarks, service marks and URL's (collectively, the
"York Sunday News Non-Masthead Related Intangible Assets");
and
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(3) all of its interest in all intangible assets related to The
York Dispatch (other than the York Dispatch Masthead, as
hereinafter defined), including, in particular, copyrights,
The York Dispatch advertiser and subscriber lists, back
issues, morgue and library (collectively, the "York Dispatch
Non-Masthead Related Intangible Assets").
C. General Partnership Interests of YNHI. Upon execution of this
Agreement and in return for 42.5% of the general partnership interests in the
Limited Partnership (as described in the Limited Partnership Agreement), YNHI
shall contribute and hereby does contribute the following to the capital of the
Limited Partnership:
(1) all of the outstanding membership interests of its subsidiary,
York Newspapers Holdings LLC, a Delaware limited liability
company ("YNHLC") (which entity will at the time of such
contribution own a 42.5% partnership interest in the General
Partnership); and
(2) all of its interest in the masthead of The York Dispatch and
all related trademarks, service marks and URL's (collectively,
the "York Dispatch Masthead").
D. Limited Partnership Interest of YDPC. In consideration for its
undertakings in this JOA and the Limited Partnership Agreement, YDPC shall
receive the limited partnership interest in the Limited Partnership (as
described in the Limited Partnership Agreement).
E. Liens and Transfer Taxes. The assets described in Sections I B and I
C shall be contributed to the Limited Partnership free and clear of all liens,
security interests, mortgages and encumbrances of any nature.
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F. Management of the Limited Partnership. The Limited Partnership shall
be managed exclusively by YNI as the Managing General Partner of the Limited
Partnership. To the extent that any provision of this Agreement or the Limited
Partnership Agreement or applicable law requires or authorizes the Limited
Partnership to perform any obligation, make any determination, give any notice,
exercise any right or take any action, YNI shall in its capacity as Managing
General Partner of the Limited Partnership be required or authorized to do so on
behalf of the Limited Partnership. In doing so, YNI shall as the Managing
General Partner conduct the business and operations of the Limited Partnership,
the General Partnership and the Newspapers (including incurring indebtedness of
the Limited Partnership and/or General Partnership) in a manner which it
believes, in the good faith exercise of business judgment, is in the best
interest of the overall economic performance of the Limited Partnership, the
General Partnership and the Newspapers considered together and does not have a
material adverse impact on the cash flow of the Limited Partnership or the
Limited Partnership's ability to make on a timely basis the cash distributions
to YDPC contemplated by Section X X (1) through (3) hereof. Subject to the
foregoing, YNI may make reasonable distinctions among the Newspapers regarding
the non-editorial business, operations and promotion of each of them that are
intended to enhance such overall economic performance. YNI shall have no
liability to the Limited Partnership, the General Partnership or YDPC for any
action it may take or fail to take in the absence of bad faith or willful
misconduct. Throughout the term of this Agreement, YNHI shall also cause its
subsidiary YNHLC to license to the General Partnership, on a royalty-free basis,
all of its interest in all intangible assets related to the York Daily Record
(other than York Daily Record masthead and all related trademarks, service marks
and URL's).
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G. Future Capital Contributions; Capital Assets. YDPC shall have no
obligation to make any further contributions to the capital of the Limited
Partnership, subject to any express obligation of YDPC under this JOA to
reimburse the General Partnership for any expenses paid by the General
Partnership on behalf of YDPC in accordance with the provisions of this JOA. YNI
shall in the future make such additional contributions to the capital of the
Limited Partnership as shall be necessary in its reasonable judgment to (1) fund
acquisitions of capital assets necessary for the business and operations of the
Limited Partnership and/or the General Partnership; (2) fund acquisitions of
capital assets necessary for the business and operations of the editorial
departments of each of the Newspapers to the extent such editorial departments'
tangible capital assets on the date hereof require supplementation or
replacement, (3) provide the Limited Partnership and the General Partnership
with adequate working capital, and (4) ensure that the Limited Partnership has
adequate funds to make on a timely basis the cash distributions to YDPC
contemplated by Section X X (1) through (3) of this JOA.
H. Dissolution of Limited Partnership. In the event that prior to the
termination of this JOA the Limited Partnership is dissolved, this JOA shall
nevertheless continue until the expiration of the term set forth in Section IV
hereof unless sooner terminated pursuant Section VI hereof and YNI or an
affiliate thereof shall assume all of the obligations of the Limited Partnership
under this JOA.
II. THE GENERAL PARTNERSHIP
A. Continuation of the General Partnership.
(1) Simultaneously herewith, through a series of related
transactions, YNHLC has acquired the entire 42.5% interest in the General
Partnership previously held by Xxxxxxx News Alliance, Inc.
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(2) By this JOA, the Limited Partnership and YNHLC shall continue to
operate the General Partnership for the purpose of publishing the Newspapers;
provided (1) that there shall continue to be no merger, combination or
amalgamation of the editorial or reportorial staff of York Daily Record and York
Sunday News, on the one hand, and The York Dispatch, on the other hand, (2) that
YDPC shall independently determine the editorial, news policy and content of The
York Dispatch and (3) that the Limited Partnership shall independently determine
the editorial, news policy and content of York Daily Record and York Sunday
News.
B. Name and Place of Business. The General Partnership shall continue
to be conducted under the name "York Newspaper Company" from its place of
business at 0000 Xxxxxx Xxxx, Xxxx, Xxxxxxxxxxxx 00000.
C. Ownership of and Title to Property. All of the parties hereto hereby
confirm and agree that the ownership of and title to all real property and all
tangible personal property used in and useful to the General Partnership is
exclusively in the General Partnership rather than in any other party to this
JOA, jointly or individually, and without regard to whether any property was
contributed by any party to this JOA to the General Partnership, was otherwise
made available to the General Partnership by any party to this JOA or was
otherwise acquired by the General Partnership.
D. Revenues, Expenses and Obligations. The General Partnership shall
receive all income and revenues of the General Partnership and shall pay all
expenses incurred or assumed by it. No party hereto shall be or shall become
liable upon any contract or other obligation of the General Partnership or any
other party hereto, unless such party shall expressly assume such contract or
other obligation or liability is imposed by law.
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E. Management of General Partnership. Subject to the provisions of this
JOA concerning the editorial independence of the Newspapers, the Limited
Partnership shall have complete authority over and exclusive control and
management of the business and affairs of the General Partnership. The Limited
Partnership may delegate such general or specific authority to the officers and
employees of the General Partnership with respect to the business and day-to-day
operations of the General Partnership as it may from time to time consider
desirable, and the officers and employees of the General Partnership may
exercise the authority granted to them. The General Partnership shall indemnify,
defend and hold harmless YDPC and the Limited Partnership and its partners (and
their respective shareholders, members, partners, directors, officers, employees
and agents) from any liability, loss or damage suffered by them by reason of any
act or omission by them in connection with the business of the General
Partnership; provided, however, that indemnification shall not be available for
any claim that results from the willful misconduct of such person or the breach
by such person of its obligations under this JOA or other agreements to which
such person may be subject. The Limited Partnership shall not be liable, in
damages or otherwise, to the General Partnership or its direct or indirect
partners for any act or omission in the absence of willful misconduct.
F. Dissolution of General Partnership. In the event that prior to the
termination of this JOA the General Partnership is dissolved at the election of
the general partners of the General Partnership, this JOA shall nevertheless
continue until the expiration of the term set forth in Section IV hereof unless
sooner terminated pursuant Section VI hereof and YNHI and the Limited
Partnership or their successors (or affiliates thereof) shall assume the
obligations of the General Partnership under this Agreement.
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III. EDITORIAL INDEPENDENCE
Preservation of the editorial independence of the Newspapers is the
essence of this JOA. YNI and YDPC each agree to maintain the separateness of
their respective corporate and limited liability company identities, as the case
may be, and to retain the editorial independence of York Daily Record and York
Sunday News, on the one hand, and The York Dispatch, on the other hand. YDPC
agrees that neither it nor any affiliate shall have any connection with the news
or editorial operations of York Daily Record or York Sunday News. The separate
editorial and reportorial staffs of York Daily Record and York Sunday News, on
the one hand, and The York Dispatch, on the other hand, shall be independent and
shall not be merged, combined or amalgamated, and their editorial policies shall
be independently determined. YNI agrees that neither it nor any affiliate shall
have any connection with the news or editorial operations of The York Dispatch.
Actions of YNI with respect to The York Dispatch shall be confined exclusively
to its role as Managing General Partner of the Limited Partnership and in such
role to cause the General Partnership to print, sell and distribute the
Newspapers, and to solicit and sell advertising space therein, and to perform
such other functions as are described in this JOA.
IV. TERM
Unless sooner terminated in accordance with the terms hereof, this JOA
shall continue in effect from the date hereof through the close of business on
June 30, 2024. This JOA shall thereupon be automatically renewed for additional
five-year terms unless any party hereto gives written notice to the contrary to
each of the other parties hereto at least 12 months prior to the end of the
then-current term.
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V. CONTINUING OPERATIONS
A. General. On and after the date hereof the General Partnership shall
control, supervise, manage and perform all operations (other than the news and
editorial operations of the Newspapers) involved in producing, printing, selling
and distributing the Newspapers; to determine press runs, press times, page
sizes and cutoffs of the Newspapers; to determine whether supplemental products
will be distributed in or with one or more Newspapers, including whether and how
certain products will be distributed to non-subscribers; to purchase newsprint,
materials and supplies as required; to solicit and sell advertising space in the
Newspapers; to collect the Newspapers' circulation and advertising accounts
receivable; to provide or make available to each Newspaper such parking,
subscriptions, messenger services, and data processing services as are
reasonable and appropriate (the costs for which shall be borne by the General
Partnership and which shall not be an Editorial Expense); and to make all
determinations and decisions and do any and all acts and things necessarily
connected with the foregoing activities, including maintaining insurance
coverage that is normal and appropriate for similarly-situated businesses. The
parties recognize that YNI as Managing General Partner of the Limited
Partnership shall have general charge and supervision of the business of the
Newspapers, but shall treat each of the Newspapers as separate and distinct
editorial products, and shall have no duties or authority with respect to the
news or editorial functions of The York Dispatch.
B. Production. On and after the date hereof, the General Partnership
shall print the Newspapers on equipment owned or leased by the General
Partnership in plant or plants located at such place or places as the General
Partnership may determine, and all operations under this JOA, except the
operation of the Newspapers' editorial departments, shall be carried on and
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performed by the General Partnership with equipment from the General
Partnership's plant or plants or by independent contractors or agents selected
by the General Partnership. During the term of this JOA, YDPC agrees to produce
The York Dispatch's editorial and news copy, and YNI agrees to produce York
Daily Record's and York Sunday News' editorial and news copy, on equipment which
is provided by the General Partnership or which is compatible with the equipment
used by the General Partnership in its production facilities.
C. Advertising and Circulation. On and after the date hereof, the
General Partnership shall have complete control of and the right to determine
the advertising and circulation rates for each of the Newspapers, and the
General Partnership shall use its reasonable efforts to sell advertising space
in each Newspaper and to sell, promote and distribute each Newspaper as widely
as practicable consistent, however, with the objective of enhancing the overall
economic performance of the General Partnership and the Newspapers considered
together in a manner that does not have a material adverse impact on the cash
flow of the General Partnership and the ability of the General Partnership to
make on a timely basis the cash distributions to the Limited Partnership
contemplated by Section X X (1) through (3) hereof, and provided that the
General Partnership in its business judgment, may spend disproportionately among
the Newspapers with respect to any matter. The General Partnership shall be free
to select and alter from time to time the national advertising representative(s)
for each of the Newspapers and the commission payable to such national
advertising representative(s) and any other terms of such arrangement(s) shall
be determined by the General Partnership.
D. Newspaper Editions and Comment Section for York Sunday News. The
York Daily Record shall hereafter be published daily on weekdays and Xxxxxxxxx,
xxx York Sunday News shall hereafter be published on Sunday and The York
Dispatch shall hereafter be published
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daily on weekdays other than legal holidays. On legal holidays when The York
Dispatch is not published, the York Daily Record shall be distributed to The
York Dispatch subscribers. YDPC may, if it elects to do so, at its cost, and as
part of its Editorial Expense, prepare a Comment Section of up to one page in
length, which will carry the masthead of The York Dispatch and will be inserted
in each edition published of York Sunday News and in each edition of the York
Daily Record published on legal holidays. The Comment Section shall not contain
"hard" or breaking news. The Comment Section may contain opinion material and
feature news and may also contain advertising. The Comment Section shall be
discrete and separate from the editorial content of York Sunday News.
E. Office Space and Equipment. On and after the date hereof, the
General Partnership shall furnish reasonably adequate office space for the
separate use of the York Daily Record, York Sunday News and The York Dispatch
editorial departments. Such space shall be furnished with furniture and
equipment which in the General Partnership's reasonable judgment is sufficient
and technologically adequate for each Newspaper's news and editorial operations.
F. Other Services. The parties recognize that in addition to the
operations with respect to the Newspapers contemplated by this JOA, the General
Partnership may also utilize its production and other facilities, personnel, and
agents for any other lawful activities it may deem appropriate, including
distributing or otherwise exploiting all manner of news, features, photographs,
data or other information, whether constituting all or any portion of the
content of printed editions of the Newspapers or otherwise, and regardless of
when such editions may have been published, to subscribers and/or
non-subscribers of the Newspapers alike, by any and all means the General
Partnership may deem appropriate, including, but not limited to, all forms of
electronic distribution, mail or other forms of delivery, without having to
obtain any further
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authorization or consent from any of the parties hereto, or to additionally
compensate such parties therefore, except or as may hereafter be expressly
provided; commercial printing, including commercial printing of other
newspapers; distribution services; and any other activities not inconsistent
with its principal business; provided, however, that such activities shall not
unreasonably interfere with the printing or distribution of the Newspapers.
G. Future Purchases. On and after the date hereof, subject to Section V
H, the General Partnership shall be responsible for the purchase of all
inventory, supplies, equipment and services as it deems to be necessary or
desirable in connection with the operation of the Newspapers and other functions
as are described in this JOA. In the event of shortages of inventory, supplies,
equipment or services, no Newspaper shall be unfairly favored or discriminated
against as regards the other.
H. News and Editorial Matters. YNI and YDPC shall furnish complete news
and editorial services necessary and appropriate for the publication of their
respective Newspapers in the manner provided in this JOA.
(1) Each of YNI and YDPC shall have complete and exclusive control
and direction of the editorial department and editorial policies of its
respective Newspapers and shall be responsible for and shall bear all of its
respective Editorial Expense (as defined below). Without limiting the generality
of the foregoing, each of YNI and YDPC shall have the exclusive right to
determine the editorial format, dress, makeup and news and feature content of
its respective Newspapers (including the content of all advertisements and
advertising matter), and each shall have complete control and authority over the
editors and editorial staff of its respective Newspapers (including the
exclusive authority to make hiring and firing decisions). The term "editorial
department" as used herein shall include the news, editorial,
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editorial promotion and photographic functions. YNI and YDPC each recognize the
importance of the editorial quality of their respective Newspapers and each of
them agrees to use reasonable efforts to provide editorial products for their
Newspapers which are compatible with the needs of the York, Pennsylvania area
newspaper market and to preserve with respect to their Newspapers a high
standard of newspaper quality and journalistic excellence.
(2) In order to equitably distribute between YNI and YDPC the cost
of producing the news and editorial content of the Newspapers, and in
consideration of changes both in the demand for newspaper products and the
various costs of producing and distributing newspaper products and in the demand
for advertising, the amount of reading content, sometimes known as "news hole,"
and the amount of color usage of each of the Newspapers shall be determined by
the General Partnership during the annual budgeting process, in consultation
with YNI and YDPC. The color usage and news hole allocations shall take into
account relevant distinguishing characteristics of each of the Newspapers,
including among other things whether one or more of the Newspapers carries
supplemental products not carried in the others, historic and projected levels
of advertising and editorial content, color and editorial and advertising layout
practices of each Newspaper, with total usage and the allocation thereof to be
determined by the General Partnership. Each Newspaper may elect to publish pages
in excess of their news hole and/or exceed the amount of color usage determined
for such Newspapers by the General Partnership, provided the General Partnership
has the production capacity to accommodate such excesses. However, if any of the
Newspapers exceeds its budgeted news hole allocation or color usage, then any
newsprint and other production costs attributable to such excess shall be borne
by such Newspaper, and upon being invoiced therefor by the General Partnership,
YNI or YDPC, as appropriate, shall reimburse
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the General Partnership for such expense. If, from time to time following the
determination by the General Partnership of the news hole allocation, the
General Partnership shall require a greater news hole allocation for one or more
editions of one or more of the Newspapers, the Newspapers shall have no
obligation to reimburse the General Partnership for any additional expense the
General Partnership may incur as a consequence thereof, and the General
Partnership shall reimburse the Newspapers promptly upon being invoiced therefor
for any additional expenses the Newspapers may incur as a consequence thereof.
(3) The General Partnership, independently of YDPC, shall develop
standards for determining the acceptability of advertising copy for publication
in York Daily Record and York Sunday News. YDPC, independently of the General
Partnership, shall develop standards for determining the acceptability of
advertising copy for publication in The York Dispatch.
(4) Except as provided otherwise herein, the term "Editorial
Expense" as used in this JOA shall mean all costs and expenses associated with
the news and editorial departments of each Newspaper, including but not limited
to: (a) compensation, including payroll taxes, retirement, pension, health and
death benefits, worker's compensation insurance and group insurance of news and
editorial staff; (b) severance pay of news and editorial staff; (c) travel and
other expenses of news and editorial staff; (d) press association assessments
and charges; (e) charges for news services and editorial wire services; (f)
charges for the right to publish news and editorial features, daily or weekly
comics and other editorial material of every kind and character; (g) the cost of
news and editorial materials, printing, stationery, office supplies and postage
for the news and editorial department; (h) donations; (i) the cost of editorial
promotions; (j) telegraphic, telephone, long-distance telephone and internet
access charges of
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the news and editorial departments; (k) charges for the purchase, rental, repair
and maintenance of editorial department cameras and related photographic
equipment (provided, however, that the term "Editorial Expense" shall not
include any cost, charge or expense related to any camera or other equipment
made available to the editorial departments of the Newspapers pursuant to
Section V E of this JOA, or to any equipment that is an integral part of the
production process even though located in the news and/or editorial department
of a Newspaper, or related to any editorial department capital assets owned by
either Newspaper); (1) the cost of liability insurance and insurance with
respect to libel and right of privacy and similar hazards; and (m) the cost of
any York, Pennsylvania based executive-level management of The York Dispatch.
Notwithstanding the foregoing, the following shall not be included in the term
"Editorial Expense" and shall be separately borne by the Newspaper which incurs
them: (i) uninsured liabilities and costs other than deductibles, co-payments,
and costs of defending against claims (including reasonable attorneys' fees)
relating to published or excluded material to the extent provided in Section VII
B, (ii) costs for excess news hole allocation or color usage as provided in
Section V H(2), (iii) costs related to material changes from present, usual or
customary practices as provided in Section V H(5), (iv) any interest,
indebtedness, amortization, organizational costs or other costs or expenses
relating to The York Dispatch and (v) except as described in (m) above, any
portion of any salaries, expenses, overhead or corporate allocation attributable
to any non-York, Pennsylvania based ownership, management or supervision of The
York Dispatch.
(5) All Editorial Expense of the editorial departments of York
Daily Record and York Sunday News shall be borne by YNI, and all Editorial
Expense of the editorial department of The York Dispatch shall be borne by YDPC;
provided, however, that costs
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resulting from any material change by any Newspaper from its present, usual or
customary practices that result in additional future newsprint, production or
other costs to be incurred on the part of the General Partnership shall be borne
by such Newspaper, and upon being invoiced therefor by the General Partnership,
YNI or YDPC, as appropriate, shall reimburse the General Partnership for such
costs.
I. Accounting Matters. The General Partnership shall cause to be
maintained full and accurate books of account and records showing all
transactions hereunder. Such books and records shall be kept on the basis of a
fiscal year ending June 30 and under the accounting methods currently employed
by YNI in accordance with generally accepted accounting principles, and shall at
all times be kept at the principal place of business of the General Partnership.
Any changes in accounting method shall be consistent with accepted accounting
principles and with changes made generally by YNI. YDPC and its respective
authorized agents or representatives shall have access to and may inspect such
books and records at any time and from time to time during ordinary business
hours. Statements shall be rendered and settlements under this JOA shall be made
on a monthly basis on the 15th day following the end of each monthly accounting
period, with annual adjustments as soon as practicable at the conclusion of each
year during the term of this JOA. An annual statement shall be furnished by the
General Partnership to the Limited Partnership not later than the 30th day of
September of each year, summarizing in reasonable detail and fairly reflecting
the transactions and the results of operations under this JOA during the
preceding fiscal year. All payments shown to be due by YDPC, YNI or the General
Partnership shall be paid within thirty (30) days after the delivery of the
applicable statement.
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J. Distributions to Partners.
(1) For each year of this JOA, the General Partnership shall
distribute to the Limited Partnership cash equal to One Hundred Percent (100%)
of the amount actually expended or accrued by YDPC as a current liability in
accordance with generally accepted accounting principles for Editorial Expenses
during such year plus a fee sufficient to compensate YDPC appropriately for the
supervisory and management services it is providing relative to the news and
editorial departments of The York Dispatch (the "Management Fee"). The
Management Fee for the first full fiscal year under this amended and revised JOA
(i.e. the fiscal year ending June 30, 2005) shall be Two Hundred Forty Thousand
Dollars ($240,000), which sum shall be adjusted annually for each subsequent
fiscal year to reflect the compound annual changes from June 30, 2004 in the
level of the Bureau of Labor Standards Consumer Price Index, All Urban Consumer
(CPI-U), U.S. City Average, All Items, or any similar index which may replace
that index. For the partial fiscal year ending June 30, 2004, the Management Fee
shall be the prorated portion of Two Hundred Forty Thousand Dollars ($240,000),
i.e. Forty Thousand Dollars ($40,000); provided, however, that the amount
distributed by the General Partnership to the Limited Partnership pursuant to
this Section X X(1) shall not, in respect of any fiscal year, exceed One Hundred
Percent (100%) of the budgeted amount for such year determined by the General
Partnership (for such expenditures or accruals) in accordance with Section V
J(7) below plus the applicable Management Fee. The amount so distributed by the
General Partnership to the Limited Partnership, net of any obligation of YDPC to
reimburse the General Partnership for expenses paid by the General Partnership
on behalf of YDPC or to indemnify the General
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Partnership pursuant to Section VII B hereof, shall, in turn, be distributed by
the Limited Partnership to YDPC on a monthly basis pursuant to subsection (3)
below.
(2) If, for any year, with the prior written concurrence of the
General Partnership, YDPC makes a permanent reduction in its editorial workforce
in accordance with the requirements of applicable laws, regulations and
agreements, and if and to the extent the severance costs associated with such
reduction are not included in YDPC's applicable budgeted Editorial Expenses for
such year determined in accordance with Section X X(7) below, then (a) the
General Partnership shall, in addition to the cash amounts described in
subsection (1) above, distribute to the Limited Partnership in cash an amount
equal to that portion of such severance costs that is reasonable and required to
be incurred for such year pursuant to applicable laws, regulations or
agreements, and that in any event does not exceed the costs YNI would have
incurred if YNI had made corresponding reductions.
(3) The distributions described in subsection (1) above shall be
made on a monthly basis on or before the 1st day of each month in increments of
1/12 of the applicable budgeted amount determined by the General Partnership
(provided that the distribution for May, 2004 shall be made upon execution of
this Agreement or as soon thereafter as shall be practicable), subject to
adjustment by the General Partnership at the end of each year so that such
aggregate distributions for the year are in such amounts as the General
Partnership shall determine (based on such records and evidence as the General
Partnership may request from YDPC) are equal to 100% of the amounts expended or
accrued by YDPC for such year as provided in Section X X(7) plus the applicable
Management Fee, but no greater than 100% of the budgeted Editorial Expenses of
The York Dispatch for such year plus the applicable Management Fee. The
distributions described in subsection (2) above shall be made on a
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monthly basis and shall be in such amounts as the General Partnership shall
determine (based on such records and evidence as the General Partnership may
request from YDPC) are equal to the amounts expended or accrued by YDPC for such
period within the applicable budget amounts, with such subsequent adjustment as
may be appropriate. The Limited Partnership shall timely make all distributions
to or for the benefit of YDPC provided for in this Agreement on or before the
dates provided herein, regardless of whether the General Partnership shall make
distributions to the Limited Partnership on a timely basis.
(4) Except for the foregoing distributions to the Limited
Partnership, and except for such cash as the Limited Partnership may from time
to time determine is necessary or desirable to retain in the General Partnership
for working capital purposes, the General Partnership shall (subject to any
applicable contractual restrictions under any General Partnership's financing
arrangements) distribute all remaining cash (including without limitation the
proceeds from any sale or disposition of General Partnership capital assets) to
the Limited Partnership and YNHLC in proportion to their respective general
partnership interests. Such distributions shall be made from time to time as
determined by the Limited Partnership, but no such distributions shall be made
at any time when the General Partnership is not current in making the
distributions to the Limited Partnership described in Section X X(1) through (3)
hereof.
(5) Pending the distributions contemplated by this Section X X,
YNI shall be authorized to manage the General Partnership's cash pursuant to the
corporate-wide policies of MediaNews Group, Inc.
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(6) All income, gain, profits, losses, and expenses of the General
Partnership shall be allocated between the Limited Partnership and YNHLC in
proportion to the cash distributed to them pursuant to this Section V J.
(7) For each fiscal year of this JOA, the budgeted Editorial
Expenses for The York Dispatch shall be an amount determined by the General
Partnership after one or more meetings with YDPC during which the actual
experiences of YDPC with respect to Editorial Expenses during the prior fiscal
year, and any necessary or desirable adjustments to the budget for Editorial
Expenses for The York Dispatch which the General Partnership deems appropriate,
are discussed by YDPC and the General Partnership and considered by the General
Partnership in good faith. A budget for the Editorial Expenses of The York
Dispatch for each fiscal year of this JOA shall be established by the General
Partnership not less frequently than annually, provided that any Editorial
Expense budget may be adjusted by the General Partnership from time to time
during the course of a fiscal year of this JOA after consultation with YDPC to
take appropriate account of developments in products or technologies, material
changes in The York Dispatch's editorial workforce, or other material changes
which may occur relative to The York Dispatch's operations or circulation in any
given year. Subject to the foregoing, in determining annual budgets for
Editorial Expenses of The York Dispatch for fiscal years subsequent to the
fiscal year ending June 30, 2005, (a) the compensation and benefit components of
The York Dispatch's budgets shall be adjusted annually from the prior fiscal
year's budget to reflect changes comparable to the changes from the previous
fiscal year in York Daily Record's compensation and benefits for news and
editorial staff, (b) those portions of The York Dispatch's budgets attributable
to wire services, comics and other features shall for each fiscal year reflect
the actual costs for the applicable fiscal year of wire services, comics and
features comparable to
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those utilized during the fiscal year ending June 30, 2005 in The York Dispatch,
and (c) the remaining portions of The York Dispatch's budgets shall be adjusted
annually to reflect changes subsequent to June 30, 2004 in the U.S. All Items
Consumer Price Index for All Urban Consumers, unless, in its reasonable judgment
the General Partnership determines such adjustments are not appropriate and no
such adjustment is made with respect to the York Daily Record. Notwithstanding
any other provision of this Agreement or the Partnership Agreement, for the
first five full fiscal years following the effective date of this Agreement, the
budgeted Editorial Expenses for The York Dispatch will not be less than the
budget for such expenses that has been established for the fiscal year ending
June 30, 2005 of Two Million Sixty-Five Thousand Twenty-Two Dollars ($2,065,022)
(the "Base Editorial Expenses Budget") as such Base Editorial Expenses Budget
amount shall be adjusted from June 30, 2004 for changes in the U.S. All Items
Consumer Price Index for All Urban Consumers from and after such date, unless
the General Partnership experiences two (2) consecutive full fiscal years of a
decline in net income from the level achieved in the fiscal year ending June 30,
2005, as determined in accordance with generally accepted accounting principles,
consistently applied.
VI. TERMINATION
A. Default. If YNI or YDPC defaults by failing to make any payment
hereunder when due or by otherwise failing to fulfill in any material respect
any of its obligations under this JOA and the party in default does not correct
its default within ninety (90) days after receipt from the other of written
notice specifying the default, then the non-defaulting party may, at its
election, terminate this JOA upon ninety (90) days' prior written notice.
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B. Action After Termination.
(1) It is understood that, as soon as practicable after the
termination of this JOA by lapse of time or otherwise, the Limited Partnership
shall, subject to the prior satisfaction of the claims of all creditors, and
subject to subsections (4) and (5) below, distribute to YDPC, The York Dispatch
masthead and The York Dispatch advertiser and subscriber lists, subject to such
dispositions, additions or substitutions relating thereto which may have
occurred in the ordinary course of the operations of the Limited Partnership or
the General Partnership subsequent to the formation of the Limited Partnership,
including, in particular, any and all lists of advertisers in and subscribers to
The York Dispatch, together with copies of any contracts with such subscribers
relating to The York Dispatch and any executory contracts for the purchase of
advertising in The York Dispatch.
(2) Upon the termination of this JOA by lapse of time or
otherwise, the General Partnership shall dissolve and shall distribute its
assets as follows:
(a) that portion of any distributions to which the Limited
Partnership may be entitled but which has not yet been distributed for the
period up to the date of termination pursuant to Section X X(1) through (3)
hereof, shall be distributed to the Limited Partnership.
(b) All other assets of the General Partnership shall be
distributed to YNHLC and the Limited Partnership in proportion to their
respective general partnership interest in the General Partnership.
(3) A partial accounting and partial settlement under this JOA
shall be made as promptly as practicable and a final accounting and final
settlement shall be made not later than the 30th day of September of the year
following the end of the fiscal year in which this JOA is terminated.
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(4) Concurrent with the distribution of any assets by the Limited
Partnership to the Limited Partner, the Limited Partner shall reimburse the
Partnership for the amount of the fair market value of the assets distributed by
the Partnership to the Limited Partner. In addition, the Limited Partner shall
assume any liability for publication related to executory contracts for
advertising in The York Dispatch which are distributed to the Limited Partner.
In determining the fair market value of the assets distributed by the
Partnership to the Limited Partner, the Partners, or the investment banking firm
or appraisers selected to determine the fair market value of such assets, as the
case may be, shall assume that the fair market value of such assets is the cash
price at which such assets would change hands between a willing buyer and a
willing seller (neither acting under compulsion) in an arms-length transaction,
on terms and subject to conditions and costs applicable in the newspaper
publishing industry. In the event the Managing General Partner and the Limited
Partner are unable to agree on the fair market value of any such assets within
20 days, the fair market value of such assets shall be determined within 60 days
thereafter by a nationally recognized investment banking firm or nationally
recognized qualified appraisal firm mutually selected by the Managing General
Partner and the Limited Partner. If the Managing General Partner and the Limited
Partner cannot agree on the selection of an investment banking firm or appraisal
firm to determine the fair market value of such assets, each of the Managing
General Partner and the Limited Partner shall select a firm. The firms selected
by the Managing General Partner and the Limited Partner shall then select a
third firm who will determine the fair market value of such assets within 60
days of being retained. Such firm's determination shall be conclusive and
binding on both the Managing General Partner and the Limited Partner. Each of
the Managing General Partner and the Limited Partner shall pay one-half of the
expenses of the selected firm. If the firm is only able to provide a range in
which the
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fair market value of such assets would exist, the fair market value of such
assets shall be the average value of the highest and lowest values of such
range. Notwithstanding the foregoing, YDPC shall have the option, either before
or after the determination of the value of the assets, to waive its right to
receive such assets and to, therefore, be relieved of all of its obligation to
pay the value of such assets or any portion thereof. In such event, YDPC shall
have no further right or obligation with respect to such assets or the JOA, and
the Limited Partnership shall have the right, subject to all applicable
provisions of the Newspaper Preservation Act, 15 U.S.C. Sections 1801 et seq.,
to utilize or dispose of such assets as it chooses.
(5) For the 10 year period following the expiration or termination
of this JOA, YNI may, subject to compliance with all applicable requirements of
the Newspaper Preservation Act, if any, and all other applicable laws, exercise
a right of first refusal with respect to any offer to acquire any of the assets
described in Section VI B(1), or any offer that would effectuate a transfer of
control of such assets, whether directly by an asset transfer or indirectly by a
transfer of control of YDPC (by a stock transfer, merger or other transaction or
series of transactions) to an entity not owned or controlled by Xxxxxx X.
Xxxxxxx. If YDPC desires to transfer such assets in any manner, it shall provide
YNI with written notice (the "Offer Notice") of a bona fide written offer (the
"Transferee Offer") from the proposed transferee, which Offer Notice shall
contain a copy of the written and signed Transferee Offer and shall state a cash
price and all the other material terms and conditions of the Transferee Offer.
YNI may give written notice of its intention to exercise its right of first
refusal at any time within 30 days after the receipt of the Offer Notice. If YNI
exercises its right of first refusal, it (or its designee) shall acquire such
assets on substantially the same terms and conditions as the Transferee Offer,
subject to compliance with all applicable requirements of the Newspaper
Preservation Act, if any, and all
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other applicable laws. If, despite using their commercially reasonable efforts,
the parties are not able to close the transaction within 120 days after the
receipt of the Offer Notice, YDPC may close the transfer with the proposed
transferee at any time within 90 days after the end of such 120-day period,
provided that such transfer shall be made on terms and conditions no less
favorable to YDPC than the terms and conditions contained in the Transferee
Offer. In the event neither the transfer to YNI nor the proposed transferee is
closed within the applicable time period, any subsequent proposed transfer by
YDPC shall be subject to all of the conditions and restrictions of this section.
VII. MISCELLANEOUS PROVISIONS
A. Certain Liabilities; Force Majeure. Except as otherwise provided in
this JOA, no party shall be charged with or held responsible for any contract,
debt, claim, demand, damage, suit, action, obligation or liability arising by
reason of any act or omission on the part of any other party, and no party shall
be liable to any other for any failure or delay in performance under this JOA
occasioned by war, riot, act of God or the public enemy, strike, labor dispute,
shortage of any supplies, failure of supplier or workmen, or any cause beyond
the control of the party required to perform, and such failure or delay shall
not be considered a default hereunder.
B. Liabilities for Published or Excluded Material. The General
Partnership shall obtain insurance to insure each of the Newspapers against
liability for libel and right of privacy in such amount as it deems appropriate,
with the premiums for such insurance being an Editorial Expense as provided in
Section V H(4). The cost of any deductible or co-payment and the costs of
defending against any claim, including attorneys' fees, shall not be Editorial
Expense but shall be paid for in full by the General Partnership, without charge
back to or against YDPC.
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However, the entire cost and expense of paying and discharging any liability or
other claim in excess of the coverage limits of the libel insurance obtained by
the General Partnership for York Daily Record and York Sunday News on account of
anything published in or excluded from York Daily Record or York Sunday News, or
arising by reason of anything done or omitted to be done by the editorial
departments thereof, shall be borne by YNI; and any similar cost and expense on
account of anything published in or excluded from The York Dispatch, or arising
by reason of anything done or omitted to be done by the editorial department of
that Newspaper, shall be borne by YDPC. YNI and YDPC each agree to indemnify and
hold the other party, the General Partnership and the Limited Partnership
harmless against any cost, expense or liability which such other party, the
General Partnership or the Limited Partnership may suffer or incur as a result
of any such action or inaction for which the indemnifying party is responsible
as provided above.
C. Contravention of Law. Nothing contained in this JOA shall be
construed to permit any party acting jointly or by unified action to engage in
any predatory pricing, predatory practice or any other conduct which would be
unlawful under any antitrust law as engaged in by any single entity. The parties
hereto further mutually agree that if any part or provision of this JOA shall
hereafter become, or be determined by action in any proper court to be, in
contravention of law, this JOA shall not thereby be considered or adjudged to be
a nullity, but that all parties shall, and each hereby agrees, immediately to
take, or authorize such action to be taken, to reform this JOA, or to modify,
alter or supplement any of its provisions, as may be necessary to permit the
intention and purpose of the parties hereto to be properly and lawfully carried
out.
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D. Further Assurances. From time to time on and after the date hereof,
each of the parties hereto will execute all such instruments and take all such
actions as the other party shall reasonably request in connection with carrying
out and effectuating the intention and purpose hereof and all transactions and
things contemplated by this JOA, including, without limitation, the execution
and delivery of any and all confirmatory and other instruments and the taking of
any and all actions which may reasonably be necessary or desirable to complete
the transactions contemplated thereby.
E. Assignments and Transfers.
(1) YDPC may sell, assign or transfer all, but not less than all,
of its rights and interests under this JOA concurrently with its transfer of all
of its rights pertaining to the General Partnership, the Limited Partnership and
the Newspapers to any person who YDPC determines, in good faith, subject to
YNI's reasonable concurrence therein, has the ability, skills and resources
necessary to adequately perform all of the obligations of the Limited Partner
under and pursuant to this JOA. Except as provided in the immediately preceding
sentence, YDPC may not sell, assign or transfer any of its rights or interests
under this JOA or pertaining to the General Partnership or the Limited
Partnership or the Newspapers to any person without the prior written consent of
YNI, which shall not be unreasonably withheld. The transfer of a controlling
interest in the membership interests of YDPC shall be considered a transfer for
purposes of this Subsection E(1).
(2) YNI, YNHI, the Limited Partnership, YNHLC and the General
Partnership may, without the consent of YDPC, sell, assign or transfer (any or
all of the forgoing, a "Transfer") a part or all or substantially all of the
assets of York Daily Record and York Sunday News as a going concern to any
person and assign a part or all of their rights and
-27-
obligations under this JOA to the purchaser thereof, or Transfer part or all of
their direct or indirect interests in YNHI, the Limited Partnership, YNHLC and
the General Partnership to any person. In the event YNI, YNHI, the Limited
Partnership, YNHLC and/or the General Partnership Transfer all or substantially
all of the assets of York Daily Record and York Sunday News as a going concern
to any person, or Transfer part or all of their direct or indirect interests in
the Limited Partnership and the General Partnership to any person, concurrently
with such Transfer (1) except in the case of a Transfer to an affiliate of YNI
that has assumed all of the obligations of the assignors pursuant to this JOA,
the General Partnership shall make all such distributions (if any) as are
required to have been made to the Limited Partnership on or prior to the date of
such sale, assignment or transfer pursuant to Section X X(1) through (3) hereof
that have not been previously made and (2) the assignors shall cause the
assignees to assume (in the case of an assets sale) all of the obligations of
the assignors pursuant to this JOA. In the event YNI, YNHI, the Limited
Partnership, YNHLC or the General Partnership engages in an assets sale
contemplated by this Section VII E, they shall, effective on the closing
thereof, be released and discharged from any further liability under this JOA.
No consent of YDPC shall be required for any pledge or hypothecation by YNI,
YNHI, the Limited Partnership, YNHLC or the General Partnership of their rights
under this Agreement or their direct or indirect interests in YNHI, the Limited
Partnership, YNHLC and the General Partnership, or by the Limited Partnership or
the General Partnership of its assets, or a transfer of such interests and
rights pursuant to any foreclosure action or any transfer in lieu of
foreclosure. YDPC acknowledges that each of YNI, the General Partnership, the
Limited Partnership and each of their subsidiaries will concurrently with the
execution of this JOA (1) guarantee the obligations of MediaNews Group, Inc.
("MNG") under the Credit Agreement, dated as of December 30,
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2003, among MNG, the Guarantors party thereto, Bank of America, N.A., as
Administrative Agent, The Bank of New York, as Syndication Agent, Fleet National
Bank and Wachovia Bank, National Association, as Co-Documentation Agents, and
the other lenders party thereto, as amended, refinanced, renewed or replaced
from time to time (the "Credit Agreement") and (2) pledge their interest in the
capital stock of their subsidiaries and certain other collateral as security for
the obligations of MNG and the Guarantors under the Credit Agreement.
F. Entire Agreement. This document amends and restates the JOA in its
entirety.
G. Notices. All notices, requests, demands, claims and other
communications which may or are to be given hereunder or with respect hereto
shall be in writing, shall be given either by personal delivery, facsimile or by
certified or special express mail or recognized overnight delivery service,
first class postage prepaid, or when delivered to such delivery service, charges
prepaid, return receipt requested, and shall be deemed to have been given or
made when personally received by the addressee, addressed as follows:
(1) If to YNI, YNHI, YNHLC, the Limited Partnership of the General
Partnership, to:
MediaNews Group, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, XX President
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxxx & Xxxx LLP
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
or such other addresses as such parties may from time to time designate.
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(2) If to YDPC, to:
York Dispatch Publishing Company, LLC
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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 such other addresses as YDPC may from time to time designate.
H. Announcements/Disclosures. The parties agree that, except as
required by law, and then only upon the maximum advance notice to the other
parties which is practicable under the circumstances, they will make no public
announcement concerning this JOA and the transactions contemplated hereby prior
to the first mutually agreed upon announcement thereof without the consent of
the other parties as to the form, content, and timing of such announcement or
announcements.
I. Headings. Titles, captions or headings contained in this JOA are
inserted only as a matter of convenience and for reference and in no way define,
limit, extend or describe the scope of this JOA or the intent of any provisions
hereof.
J. Governing Law. This JOA shall be construed and enforced in
accordance with the internal laws of the State of Pennsylvania.
K. Modifications. This JOA shall be amended only by an agreement in
writing and signed by the party against whom enforcement of any waiver,
modification or discharge is
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sought (subject to any applicable contractual restrictions under the General
Partnership's financing arrangements).
L. Specific Performance. In addition to any other remedies the parties
may have, each party shall have the right to enforce the provisions of this JOA
through injunctive relief or by a decree or decrees of specific performance.
M. No Third Party Beneficiaries. Nothing in this JOA, express or
implied, shall give to anyone other than the parties hereto (and the parties
entitled to indemnification hereunder) and their respective permitted successors
and assigns any benefit, or any legal or equitable right, remedy or claim, under
or in respect of this JOA.
N. Nature of Relationship. Nothing contained in this JOA shall
constitute the parties hereto as alter egos or joint employers or as having any
relationship other than as specifically provided herein and in any other
agreement to which they are subject. YNI and YDPC each will retain and be
responsible for (and will indemnify the other parties, the General Partnership
and the Limited Partnership against) all of their respective debts, obligations,
liabilities, and commitments which have not been expressly assumed by the
General Partnership pursuant to this JOA or the Limited Partnership, or for
which the General Partnership was not already liable under this JOA prior to
this amendment and restatement thereof.
O. Survival. The expiration or termination of this JOA shall not
abrogate the rights and obligations of the parties under Section VI B(5) or
Section VII (B) or any other provision of this JOA that contemplates actions to
be taken after the expiration or termination of this JOA.
P. Execution by YDPC. The Person executing this Agreement on behalf of
YDPC shall not be subject to any personal liability or obligation under or
pursuant to this JOA or with respect to the Limited Partnership or the Limited
Partnership Agreement.
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YORK NEWSPAPERS, INC.
By:/s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
YORK DISPATCH PUBLISHING COMPANY, LLC
By:/s/ G. B. Xxxxx
-----------------------------------------
Name: G. B. Xxxxx
Title: Authorized Agent
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:/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
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