Second Amended and Restated
Partnership Agreement
For
California Newspapers Partnership
A Delaware General Partnership
By and Among
West Coast MediaNews LLC
Donrey Newspapers LLC
The Sun Company of San Bernardino, California
California Newspapers, Inc.
Media West--SBC, Inc.
And
Media West--CNI, Inc.
May 30, 2003
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
ARTICLE II THE PARTNERSHIP
2.1 Formation...............................................................6
2.2 Name....................................................................6
2.3 Business Purpose........................................................6
2.4 Registered Office and Agent.............................................6
2.5 Term....................................................................6
2.6 Principal Place of Business.............................................6
2.7 Title to Partnership Property...........................................6
2.8 The Partners............................................................7
2.9 Fiscal Year.............................................................7
2.10 Representations and Warranties of the Parties...........................7
ARTICLE III CAPITAL STRUCTURE AND CONTRIBUTIONS
3.1 Capital Contributions...................................................8
3.2 No Other Mandatory Capital Contributions...............................10
3.3 No Right of Withdrawal.................................................10
3.4 Loans by Third Parties.................................................10
ARTICLE IV CAPITAL ACCOUNTS; ALLOCATION OF PROFITS AND LOSSES
4.1 Capital Accounts.......................................................10
4.2 Book Allocation........................................................10
4.3 Tax Allocations........................................................11
ARTICLE V DISTRIBUTIONS
5.1 Distributions..........................................................12
ARTICLE VI ACCOUNTING AND REPORTS
6.1 Books and Records......................................................13
6.2 Reports to Partners....................................................13
6.3 Annual Tax Returns.....................................................14
6.4 Actions in Event of Audit..............................................15
6.5 Tax Elections..........................................................15
ARTICLE VII ACTIONS BY PARTNERS
7.1 Consents and Other Actions by Sun, California Newspapers,
MWSB and MWCNI.........................................................15
7.2 Meetings...............................................................16
7.3 Actions by the Partners................................................16
ARTICLE VIII MANAGEMENT
8.1 The Management Committee...............................................16
8.2 Removal of Members; Vacancies..........................................16
8.3 Meetings of the Management Committee; Notice...........................17
8.4 Quorum.................................................................17
8.5 Voting.................................................................17
8.6 Certain Matters Requiring a Unanimous Vote of the Management
Committee..............................................................17
8.7 Action by Consent......................................................19
8.8 Executive Officers.....................................................19
8.9 Provision of Services to Partnership by MediaNews......................20
ARTICLE IX TRANSFER OF PARTNERSHIP INTERESTS; ADDITIONAL AND
SUBSTITUTE PARTNERS
9.1 Prohibited Transfers...................................................20
9.2 Permitted Transfers by Partners........................................20
9.3 Substitute Partner.....................................................21
9.4 Involuntary Withdrawal by a Partner....................................21
9.5 Right of First Refusal for Sale of Partnership Interests...............21
9.6 Tag-Along Rights Regarding Sales of Partnership Interests..............23
9.7 West Coast MediaNews Drag-Along Rights.................................24
9.8 Admission of Additional Partners.......................................25
9.9 Donrey Put Option......................................................25
9.10 Reserved...............................................................27
9.11 Partnership Call Option Re Section 9.9 Put Option......................27
9.12 Acknowledgment of Pledges of Interests.................................27
ARTICLE X DISSOLUTION AND LIQUIDATION
10.1 Dissolution............................................................28
10.2 Election to Continue the Business......................................29
10.3 Closing of Affairs.....................................................29
ARTICLE XI AMENDMENT TO AGREEMENT
ARTICLE XII INDEMNIFICATION
12.1 General................................................................30
12.2 Indemnification Obligations............................................30
12.3 Exclusive Remedy.......................................................31
12.4 Third Party Claims.....................................................31
12.5 Other Indemnification Claims...........................................33
ARTICLE XIII GENERAL PROVISIONS
13.1 Mediation..............................................................33
13.2 Notices................................................................33
13.3 Confidentiality........................................................34
13.4 Entire Agreement, Etc..................................................34
13.5 Construction Principles................................................35
13.6 Counterparts...........................................................35
13.7 Severability...........................................................35
13.8 Expenses...............................................................35
13.9 Governing Law..........................................................35
13.10 Binding Effect.........................................................35
13.11 Additional Documents and Acts..........................................35
13.12 No Third Party Beneficiary.............................................35
13.13 Formation of Subsidiary Limited Partnership............................35
EXHIBITS
Exhibit 1 Schedule of Certain Partnership Assets and Liabilities Transferred to
Subsidiary Limited Partnership.
SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT
FOR
California Newspapers Partnership
A Delaware General Partnership
THIS SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT of California
Newspapers Partnership, a Delaware general partnership (the "Partnership") is
made and entered into as of this 30th day of May, 2003 by and among West Coast
MediaNews LLC, a Delaware limited liability company ("West Coast MediaNews"),
Donrey Newspapers LLC, an Arkansas limited liability company ("Donrey"), The Sun
Company of San Bernardino, California, a California corporation ("Sun"),
California Newspapers, Inc., a California corporation ("California Newspapers"),
Media West--SBC, Inc., a Delaware corporation ("MWSB"), Media West--CNI, Inc., a
Delaware corporation ("MWCNI," with Sun, California Newspapers, MWSB and MWCNI
being sometimes hereinafter collectively referred to as "Gannett") and each
other individual or business entity who may hereafter be admitted from time to
time as a Partner hereunder. West Coast MediaNews, Donrey, Sun, California
Newspapers, MWSB and MWCNI and any other individual and/or business entity
subsequently admitted shall be known as and referred to as "Partners" and
individually as a "Partner".
RECITALS
WHEREAS, the Partnership was formed as a general partnership under the laws
of the State of Delaware as of March 31, 1999;
WHEREAS, a Partnership Agreement was entered into by West Coast MediaNews,
Donrey, Sun and MWSB dated as of March 31, 1999 and was amended and restated
pursuant to an Amended and Restated Partnership Agreement dated as of September
30, 2000 (as so amended, the "Partnership Agreement"); and
WHEREAS, the Partners desire to further amend and restate the Partnership
Agreement as of the date hereof;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
expressed, the Partners agree as follows:
ARTICLE I
DEFINITIONS
"ADDITIONAL CAPITAL CONTRIBUTIONS" means any additional Capital
Contributions made pursuant to Section 3.1(b) of this Agreement.
"ADDITIONAL CONTRIBUTION TERMS" shall have the meaning ascribed to it in
Section 3.1(b) of this Agreement.
"ADDITIONAL PARTNER" means any additional person admitted to the
Partnership, pursuant to Section 9.8 of this Agreement, but does not include a
Substitute Partner.
"AFFILIATE" means any person controlled by, controlling, or under common
control with the entity in question.
"BOOK VALUE" means, with respect to any asset of the Partnership, the
adjusted basis of such asset as of the relevant date for federal income tax
purposes, except as follows:
(i) the initial Book Value of any asset contributed by a Partner
to the Partnership shall be the fair market value of such asset;
(ii) the Book Values of all Partnership assets (including
intangible assets such as goodwill) shall be adjusted to equal their respective
fair market values as of the following times:
(A) the acquisition of an additional Interest in the
Partnership by any new or existing Partner in exchange for more than a DE
MINIMIS Capital Contribution;
(B) the distribution by the Partnership to a Partner of
more than a DE MINIMIS amount of money or Partnership property as consideration
for an Interest in the Partnership; and
(C) the liquidation of the Partnership within the meaning
of Regulation section 1.704-1(b)(2) (iv)(f)(5)(ii);
(iii) the Book Value of the Partnership assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code section 734(b) or Code section 743(b), but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Regulation section 1.704-1(b)(2)(iv)(m); and
(iv) if the Book Value of an asset has been determined or
adjusted pursuant to subsection (i), (ii) or (iii) above, such Book Value shall
thereafter be adjusted by the Depreciation taken into account with respect to
such asset for purposes of computing Profits and Losses and other items
allocated pursuant to Section 4.2.
The foregoing definition of Book Value is intended to comply with the
provisions of Regulation section 1.704-1(b)(2)(iv) and shall be interpreted and
applied consistently therewith.
"BUSINESS DAY" means any day (other than a day which is a Saturday, Sunday
or legal holiday in the State of California).
"BUSINESS PLAN" means the business plan for the Partnership for the period
ending June 30, 1999, substantially in the form attached hereto as Exhibit A,
and as adopted annually thereafter by the Management Committee.
"CAPITAL ACCOUNT" means, for each Partner, the capital account maintained
by the Partnership for such Partner as described in Section 4.1.
"CAPITAL CONTRIBUTION" means the amount of money and the other property
(net of any liabilities that the Partnership is considered to assume, or take
subject to, pursuant to Code Section 752, except to the extent such liabilities
are in fact discharged by the Partners contributing such property) which is
contributed by a Partner to the Partnership pursuant to Article III hereof,
including Additional Capital Contributions.
"CAPITAL EXPENDITURE" means all expenditures of a capital nature, including
those in relation to the construction of enlargements or additions to any of the
assets or facilities owned by the Partnership or for any other acquisitions or
improvements thereto of a capital nature, including, without limitation,
expenditures for materials, labor, equipment permits, consulting fees,
accounting and legal fees, insurance costs, contractors' fees, and land and
easement costs.
"CODE" means the Internal Revenue Code of 1986, as currently amended.
"CONTRIBUTION AGREEMENT" means that contribution agreement described in
Section 3.1 of the Agreement.
"DEPRECIATION" means, for each Fiscal Year or part thereof, an amount equal
to the depreciation, amortization, or other cost recovery deduction allowable
for federal income tax purposes with respect to an asset for such Fiscal Year or
part thereof, except that if the Book Value of an asset differs from its
adjusted basis for federal income tax purposes, the depreciation, amortization
or other cost recovery deduction for such Fiscal Year or part thereof shall be
an amount which bears the same ratio to such Book Value as the federal income
tax depreciation, amortization or other cost recovery deduction for such Fiscal
Year or part thereof bears to such adjusted tax basis. If such asset has a zero
adjusted tax basis, the depreciation, amortization or other cost recovery
deduction for each Fiscal Year shall be determined under a method reasonably
selected by the Tax Matters Partner.
"EXECUTIVE OFFICERS" means the following officers of the Partnership: its
president and chief executive officer, chief financial officer and any other
individual who would be an "executive officer" of the Partnership as determined
in accordance with Rule 3b-7 promulgated under the Securities Exchange Act of
1934.
"FAIR MARKET VALUE OF THE OFFERED INTEREST" is defined in Section
9.5(f)(ii).
"FISCAL YEAR" means the fiscal year of the Partnership as defined in
Section 2.9 hereof.
"FORMATION DATE" means March 31, 1999.
"GAAP" means generally accepted accounting principles, as in effect from
time to time.
"INDEBTEDNESS" means those obligations for borrowed money which were
assumed by the Partnership as a consequence of, or to which property of the
Partnership was subject immediately following the Partner's initial Capital
Contributions, within the meaning of Section 3.1(a) hereof and any obligation of
a Partner to pay money which has been assumed by the Partnership with the
exception of any of the foregoing such obligations which are included on:
(i) the working capital statement described in Section 4.5 of the
Contribution Agreement dated as of March 3, 1999 by and among Garden
State Newspapers, Inc. Alameda Newspapers, Inc., V & P Publishing,
Inc., Internet Media Publishing, Inc., DR Partners, Media West - SBC,
Inc. and The Sun Company of San Bernardino, California; or
(ii) the Gannett Newspapers Working Capital Statement as defined in the
Contribution Agreement dated as of September 15, 2000 by and among
California Newspapers, Inc., Media West-CNI, Inc. and California
Newspapers Partnership.
"INTEREST" means, with respect to any Partner at any time, such Partner's
entire beneficial ownership interest in the Partnership and its property at such
time, including such Partner's Capital Account, voting rights (if any), and
right to share in Profits and Losses, all items of income, gain, loss, deduction
and credit, distributions and all other benefits of the Partnership as specified
in this Agreement, together with such Partner's obligations to comply with all
of the terms of this Agreement.
"INVOLUNTARY TRANSFER" shall have the meaning ascribed thereto in Section
9.4.
"MAJORITY" means the Partners having a majority of the Percentage
Interests.
"PERCENTAGE INTEREST" means, for each Partner, such Partner's percentage
interest as set forth in Section 3.1 hereof as such may be adjusted from time to
time in accordance with this Agreement.
"PROFITS" and "LOSSES" means, for each Fiscal Year or part thereof, the
taxable income or loss of the Partnership for such Fiscal Year determined in
accordance with Code section 703(a) (for this purpose, all items of income,
gain, loss or deduction required to be stated separately pursuant to Code
section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
(i) any income of the Partnership that is exempt from federal
income tax shall be added to such taxable income or loss;
(ii) any expenditures of the Partnership described in Code
section 705(a)(2)(B) or treated as such pursuant to Regulation section
1.704-1(b)(2)(iv)(I) shall be subtracted from such taxable income or loss;
(iii) any Depreciation for such Fiscal Year or part thereof shall
be taken into account in lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable income or loss;
(iv) gain or loss resulting from any disposition of Partnership
property with respect to which gain or loss is recognized for federal income tax
purposes shall be computed with reference to the Book Value of the property
disposed of, rather than the adjusted tax basis of such property;
(v) in the event the Book Value of any Partnership asset is
adjusted pursuant to section (ii) or (iii) of the definition of Book Value
hereof, the amount of such adjustment shall be taken into account as gain or
loss from the disposition of such assets for purposes of computing Profits and
Losses; and
(vi) such taxable income or loss shall be deemed not to include
any income, gain, loss, deduction or other item thereof allocated pursuant to
Section 4.3.
"REGULATIONS" means the income tax regulations promulgated under the Code
by the Department of the Treasury, as such regulations may be amended from time
to time.
"SUBSTITUTE PARTNER" means a person who has become a substitute Partner
pursuant to Section 9.3 hereof, but does not include an Additional Partner.
"TRANSFER" means any sale, assignment, gift, alienation, or other
disposition, whether voluntary or by operation of law (other than a transfer
which may arise by reason of death or incapacity), of an interest or any portion
thereof, but shall not include any pledge, hypothecation or granting of a
security interest in such Interest.
"TRANSFEREE" means a purchaser, transferee, assignee (other than collateral
assignees) or any other person who takes, in accordance with the terms of this
Agreement, an Interest in the Partnership.
ARTICLE II
THE PARTNERSHIP
2.1 FORMATTION. The parties hereto have formed a partnership in accordance
with the further terms and provisions hereof. Each of the Partners shall execute
or cause to be executed from time to time all other instruments, certificates,
notices and documents, and shall do or cause to be done all such filing,
recording, publishing and other acts, in each case, as may be necessary or
appropriate from time to time to comply with all applicable requirements for the
formation and/or operation and, when appropriate, termination of a partnership
in the State of Delaware and all other jurisdictions where the Partnership shall
desire to conduct its business.
2.2 NAME. The name of the Partnership shall be "California Newspapers
Partnership" and its business shall be carried on in this name with such
variations and changes as the Management Committee, in its sole judgment, deems
necessary or appropriate to comply with the requirements of the jurisdictions in
which the Partnership's operations are conducted.
2.3 BUSINESS PURPOSE. The purpose of the Partnership is to carry on any
lawful business and to engage in any lawful act or activity for which a
partnership may be formed under the laws of the State of Delaware; provided,
HOWEVER, that the business of the Partnership shall, without the unanimous
consent of the Management Committee, be limited to activities involving the
ownership, operation, and publication (in printed and electronic form) of
newspapers and related publications and business activities directly related or
incidental to such ownership, operation and publication including, without
limitation, commercial printing, alternate distribution services and direct mail
activities.
2.4 REGISTERED OFFICE AND AGENT. The registered office of the Partnership
in the State of Delaware and its registered agent for service of process on the
Partnership in the State of Delaware shall be as determined by the Management
Committee.
2.5 TERM. The term of the Partnership commenced on March 31, 1999 (the
"Formation Date") and shall continue until December 31, 2048 unless earlier
dissolved and liquidated in accordance with Article XI hereof.
2.6 PRINCIPAL PLACE OF BUSINESS. The Partnership shall maintain its
principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ or such other location or locations as the Management Committee may from
time to time select.
2.7 TITLE TO PARTNERSHIP PROPERTY. Except as shown in Schedule B, legal
title to all property of the Partnership other than leased property shall be
held and conveyed in the name of the Partnership.
2.8 THE PARTNERS. The name and place of residence of each Partner is as
follows:
NAME RESIDENCE
West Coast MediaNews c/o MediaNews Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Donrey c/o Stephens Group, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Sun c/o Gannett Co., Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
California Newspapers c/o Gannett Co., Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MWSB ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
MWCNI ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
2.9 FISCAL YEAR. Unless the Tax Matters Partner shall otherwise determine
in accordance with Section 706 of the Code, the fiscal year of the Partnership
shall end on June 30 of each year, and the initial Fiscal Year of the
Partnership shall commence on the Formation Date and end on June 30, 1999.
2.10 REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each of the parties
represents and warrants that:
(a) It is a corporation or limited liability corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization;
(b) It has all requisite power and authority to enter into this
Agreement; the execution and delivery by such party of this Agreement and the
consummation by such party of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of such party; and
this Agreement has been duly and validly executed and delivered by such party
and constitutes (assuming the due and valid execution and delivery of this
Agreement by the other parties), the legal, valid and binding obligation of each
party, enforceable against each party in accordance with its terms;
(c) Except as set forth in Schedule 2.10(c) hereto, there is no
litigation pending or, to the best knowledge of such party, threatened against
such party which has a reasonable likelihood of materially and adversely
affecting the operations, properties or business of the Partnership or any of
such party's obligations under this Agreement;
(d) The execution, delivery and performance by such party of this
Agreement will not, as of and after the Closing Date, result in a breach of any
of the terms, provisions or conditions of any agreement to which such party is a
party which has a reasonable likelihood of materially and adversely affecting
the operations, properties or business of the Partnership or such party's
obligations under this Agreement;
(e) The execution and delivery by such party of this Agreement and
the formation of the Partnership does not require any filing by it with, or
approval or consent of, any governmental authority which has not already been
made.
ARTICLE III
CAPITAL STRUCTURE AND CONTRIBUTIONS
3.1 CAPITAL CONTRIBUTIONS.
(a) INITIAL CONTRIBUTIONS. Each of West Coast MediaNews, Donrey, Sun
and MWSB has made (or will cause to be made) a Capital Contribution to the
Partnership as set forth in the Contribution Agreement among Garden State
Newspapers, Inc., Alameda Newspapers, Inc., V&P Publishing, Inc., and Internet
Media Publishing, Inc. (on behalf of West Coast MediaNews), DR Partners (on
behalf of Donrey), Sun and MWSB, dated as of March 3, 1999 (the "Contribution
Agreement"). Each of California Newspapers and MWCNI has made (or will cause to
be made) a Capital Contribution as set forth in the Contribution Agreement among
the Partnership, California Newspapers and MWCNI dated as of September 15, 2000
(also, for purposes of this Agreement, the "Contribution Agreement"). As a
result of such Capital Contributions, effective as of September 30, 2000, West
Coast MediaNews has (or will have) a Percentage Interest in the Partnership of
54.23%, Donrey has (or will have) a Percentage Interest in the Partnership of
26.28%, Sun has (or will have) a Percentage Interest in the Partnership of
10.54%, MWSB has (or will have) a Percentage Interest in the Partnership of
1.17%, California Newspapers has (or will have) a Percentage Interest in the
Partnership of 7.00% and MWCNI has (or will have) a Percentage Interest in the
Partnership of 0.78%. Percentage Interests shall not be adjusted on account of
the payment of any sums, or the contribution of any property, treated as a
Capital Contribution without the unanimous consent of the Partners.
(b) ADDITIONAL CAPITAL CONTRIBUTIONS. At any time, and from time to
time after the Formation Date, the Management Committee, in its sole and
absolute discretion, may, by unanimous vote, determine that the Partnership
requires additional capital contributions (the "Additional Capital
Contributions") and the amount, terms and conditions thereof. Such Additional
Capital Contributions will be used by the Partnership for such activities as are
designated by the Management Committee in its approval resolution. All
Additional Capital Contributions will be made by the Partners in proportion to
their then-current Percentage Interests in the Partnership. In addition, with
the unanimous consent of the Management Committee, Additional Capital
Contributions may be obtained by the admittance of Additional Partners in
accordance with Section 9.8. In the event Additional Partners are admitted, the
Percentage Interests of the existing and Additional Partners shall be adjusted
as determined by the Management Committee, voting unanimously. From the date of
the Management Committee's determination that an Additional Capital Contribution
is required until it has been paid, a Partner's obligation to make that
contribution shall accrue interest at a rate of 9% per annum until the
obligation to make the Additional Capital Contribution (and to pay all accrued
but unpaid interest, if any, with respect thereto) has been paid in full. All
cash distributions to which such Partner shall otherwise be entitled to receive
pursuant to Section 5.1(a) hereof, shall instead be retained by the Partnership
and credited to the discharge of the obligation to make such Additional Capital
Contribution (and to pay all accrued but unpaid interest, if any, with respect
thereto). Any amounts so retained shall be treated as distributed to such
Partner and, first paid to the Partnership in the amount of the accrued interest
and, second, with respect to the remainder thereof, contributed to the
Partnership as an Additional Capital Contribution on behalf of the Partner owing
such obligation.
(c) CAPITAL CONTRIBUTIONS REQUIRED UNDER SECTION 12.2. As provided in
Section 12.2 of this Agreement, any Partner owing an indemnification obligation
to the Partnership arising under Article XII of this Agreement shall make a
capital contribution in cash or other immediately available funds in the amount
of such obligation promptly upon the determination of such obligation.
Furthermore, from the date of the determination of such obligation until the
date such capital contribution is made in cash or other immediately available
funds, the amount of such obligation shall accrue interest owing to the
Partnership at a rate of 9 per cent per annum, and until such obligation (and
all accrued interest, if any, with respect thereto) has been paid in full in
cash or other immediately available funds, all cash distributions to which a
Partner shall otherwise be entitled to receive pursuant to Section 5.1(a)
hereof, shall instead be retained by the Partnership and credited to the
discharge of the obligation to make such capital contribution and to pay
accrued, but unpaid interest. Any amounts so retained shall be treated as
distributed to such Partner and, first paid to the Partnership in the amount of
the accrued interest and, second, with respect to the remainder thereof,
contributed to the Partnership as an additional capital contribution on behalf
of the Partner owing such obligation.
(d) OTHER CONTRIBUTIONS. At any time during the term of this
Agreement, any Partner may offer to contribute to the Partnership as an
additional capital contribution any newspapers, mastheads or related assets
owned by it that are located in the State of California. Should the Management
Committee, by a unanimous vote, agree to accept such contribution, the Capital
Account and, if determined by unanimous vote of the Management Committee, as
provided in Section 8.6 hereof, the Percentage Interest, of the contributing
Partner will be adjusted upward to reflect the fair market value of such
contribution (determined in accordance with the procedures set forth in Section
9.5(f)) and, if determined by unanimous vote of the Management Committee, as
provided in Section 8.6 hereof, the Percentage Interest of the other Partners
will be adjusted downward proportionately to reflect the increase in the
contributing Partner's Percentage Interest.
3.2 NO OTHER MANDATORY CAPITAL CONTRIBUTIONS. Except as specified in
Section 3.1(b), Section 3.1(c) or Section 12.2, no Partner shall be obligated to
make any Additional Capital Contribution to the Partnership's capital.
3.3 NO RIGHT OF WITHDRAWAL. No Partner shall have the right to withdraw
any portion of such Partner's Capital Contributions to, or to receive any
distributions from, the Partnership, except as provided in Articles V, IX and X
hereof.
3.4 LOANS BY THIRD PARTIES. Subject to the provisions of Section 8.6
hereof, the Partnership may borrow funds or enter into other similar credit,
guarantee, financing or refinancing arrangements for any purpose from any
Partner or from any person upon such terms as the Management Committee
determines, in its sole and absolute discretion, are appropriate.
ARTICLE IV
CAPITAL ACCOUNTS;
ALLOCATION OF PROFITS AND LOSSES
4.1 CAPITAL ACCOUNTS. Each Partner shall have a capital account (a
"Capital Account") which account shall be (1) increased by the amount of (a) the
Capital Contributions of such Partner, (b) the allocations to such Partner of
Profits and items of income or gain pursuant to Section 4.2, and (c) any
positive adjustment to such Capital Account by reason of an adjustment to the
Book Value of such Partner's share of Partnership assets, and (2) decreased by
the amount of (x) any cash and the Book Value of any property (net of
liabilities secured by such property that such Partner is considered to assume
or take subject to under Code section 752) distributed to such Partner, (y) the
allocation to such Partner of Losses and items of loss pursuant to Section 4.2,
and (z) any negative adjustment to such Capital Account by reason of an
adjustment to the Book Value of such Partnership assets. In the event of a
revaluation of the Book Value of Partnership assets, the Partners' Capital
Accounts shall be adjusted in the same manner as if gain or loss had been
recognized on a sale of the assets at their new Book Value. The provisions of
this Agreement relating to the maintenance of Capital Accounts are intended to
comply with Regulation section 1.704-1(b), and shall be interpreted and applied
in a manner consistent with such Regulation.
4.2 BOOK ALLOCATION.
(a) IN GENERAL. This Section 4.2 sets forth the general rules for
book allocations of Profits, Losses and similar items to the Partners as
reflected in their Capital Accounts.
(b) PROFITS AND LOSSES. Profits shall be allocated to the Partners in
proportion to their Percentage Interests. Losses shall be allocated to the
Partners in proportion to their Percentage Interests except that any interest
expense or other deduction attributable to any Indebtedness (other than any
depreciation or amortization deductions attributable to property which is
contributed to the Partnership subject to such Indebtedness) and any deductions
attributable to any indemnity payments described in Section 12.2 shall be
allocated to the Partner that contributed property subject to such Indebtedness
or such indemnity payment.
(c) SPECIAL RULES.
(i) Notwithstanding the general allocation rules set forth in
Section 4.2(b), in the case of any deduction allocable to a "nonrecourse
liability" (as that term is defined in Regulations Section 1.704-2(b)(3)) and
any deduction allocable to a "partner nonrecourse liability" (as that term is
defined in Regulations Section 1.704-2(b)(4)), and any minimum gain or partner
minimum gain chargeback with respect thereto, shall be subject to the rules
applicable thereto and described in Regulations Section 1.704-2.
(ii) If in the opinion of independent tax counsel for the
Partnership, it is necessary to provide special allocation rules in order to
avoid a significant risk that a material portion of any allocation set forth in
this Article IV would not be respected for federal income tax purposes, the
Partners shall negotiate in good faith any amendments to this Agreement as, in
the opinion of such counsel, are necessary or desirable, taking into account the
interests of the Partners as a whole and all other relevant factors, to avoid or
reduce significantly such risk to the extent possible without materially
changing the amounts allocable and distributable to any Partner pursuant to this
Agreement.
(iii) If there is a change made, by unanimous vote of the
Management Committee in accordance with the provisions of Section 8.6 hereof, in
any Partner's share of the Profits, Losses or other items of the Partnership
during any Fiscal Year, allocations among the Partners shall be made in
accordance with their interests in the Partnership from time to time during such
Fiscal Year in accordance with Code section 706, using the closing-of-the-books
method, except that Depreciation with respect to assets not contributed by a
Partner shall be deemed to accrue ratably on a daily basis over the entire
Fiscal Year during which the corresponding asset is owned by the Partnership.
(iv) Except as otherwise provided in Sections 4.2(b) and
4.3(b)(i), each item of income, gain, loss, and deduction and all items governed
by Code section 702(a) shall be allocated among the Partners in proportion to
the allocation of Profits, Losses and other items to the Partners hereunder,
provided that to the extent any gain recognized from any disposition of a
Partnership asset is treated as ordinary income because it is attributable to
the recapture of any depreciation or amortization, such ordinary income shall be
allocated among the Partners in the same ratio as the prior allocations of
Profits, Losses or other items that included such depreciation or amortization;
in no event, however, shall any Partner be allocated ordinary income hereunder
in excess of the gain otherwise allocable to each Partner.
4.3 TAX ALLOCATIONS.
(a) IN GENERAL. Except as set forth in Section 4.3(b), allocations
for tax purposes of items of Profit, Loss and other items of income, gain, loss,
deduction, credit and distribution therefor, shall be made in the same manner as
allocations for book purposes set forth in Section 4.2. All such allocations
pursuant to Section 4.3(b) shall be considered made solely for purposes of
federal, state and local income taxes, and shall not affect or in any way be
taken into account in computing any Partner's Capital Account or share of
Profits, Losses, other items or gain, deduction and distribution pursuant to any
provision of this Agreement.
(b) SPECIAL RULES.
(i) ELIMINATION OF BOOK/TAX DISPARITIES. In determining a
Partner's allocable share of Partnership taxable income, the Partner's allocable
share of each item of Profits and Losses shall be properly adjusted to reflect
the difference between such Partner's share of the adjusted tax basis and the
Book Value of Partnership assets used in determining such item under any method
adopted by the Tax Matters Partner and allowable under Code Section 704(c),
provided, however, that any deductions for depreciation or amortization
attributable to property contributed to the Partnership by a Partner shall be
allocated to the Partner contributing such property. In the event that the
method for the allocation of depreciation or amortization deductions
attributable to contributed property described in the previous sentence is
disallowed, then the Tax Matters Partner shall make such compensating
allocations of items including (notwithstanding the second sentence of Section
4.3(a)) such book allocations as are intended to accomplish the same economic
result.
(ii) TAX CREDITS. Any tax credits shall be allocated among the
Partners in accordance with Regulation section 1.704-1(b)(4)(ii), unless the
applicable Code provision shall otherwise require.
(c) CONFORMITY OF REPORTING. The Partners are aware of the income tax
consequences of the allocations made or to be made pursuant to this Article 4
and Section 6.5 and hereby agree to be bound by the provisions of this Article 4
and Section 6.5 in reporting their shares of Partnership profits, gains, income,
losses, deductions, credits and other items for income tax purposes.
ARTICLE V
DISTRIBUTIONS
5.1 DISTRIBUTIONS.
(a) The Management Committee (or, at the Management Committee's
direction, the Executive Officers of the Partnership), on or before the last day
of each month shall (i) determine the amount (x) of earnings (before
depreciation and amortization) or other Partnership funds available for
distribution to Partners (whether as a distribution of earnings or as loans or
advances) and (y) the amount of working capital needed for the continuing
operations of the business of the Partnership (including, without limitation,
Capital Expenditures), and (ii) cause the excess, if any, of (x) over (y) to be
distributed to the Partners (subject to the provisions of Sections 3.1(b) and
3.1(c) hereof relating to the Partnership's retention of sums otherwise
distributable to a Partner to discharge the obligation to make certain capital
contributions and to pay certain accrued but unpaid interest). Except as
otherwise provided herein, all distributions shall be made in proportion to the
Partners' Percentage Interests. For the purposes of this Section 5.1(a), any
payment of principal or interest by the Partnership with respect to Indebtedness
shall be treated as distributed by the Partnership to the Partner that
transferred the property to the Partnership to which such Indebtedness relates,
and then as contributed to the Partnership by such Partner as an Additional
Capital Contribution.
(b) If a distribution of cash is deemed made pursuant to Section
3.1(b), Section 3.1(c) or the last sentence of Section 5.1(a) and, the
distribution is not in proportion to the Partner's Percentage Interest, then the
Management Committee shall adjust subsequent distributions so that the
cumulative distributions deemed made pursuant to Section 3.1(b), Section 3.1(c),
the last sentence of Section 5.1(a) and this Section 5.1(b) are, in the
aggregate, in proportion to the Partners' Percentage Interests.
ARTICLE VI
ACCOUNTING AND REPORTS
6.1 BOOKS AND RECORDS.
(a) The Partnership shall maintain or cause to be maintained at an
office of the Partnership this Agreement and all amendments thereto and full and
accurate books of the Partnership showing all receipts and expenditures, assets
and liabilities, Profits and Losses, and all other books, records and
information required by the Act as necessary for recording the Partnership's
business and affairs. The Partnership's books and records shall be maintained in
accordance with GAAP except to the extent otherwise provided hereunder for
purposes of maintaining Capital Accounts in accordance with Article IV hereof
and calculating the Profits or Losses charged or credited thereto. Such
documents, books and records shall be maintained at such office or such
designated successor office until the expiration of any applicable statues of
limitations for bringing a claim in relation to such documents, books and
records.
(b) Each Partner shall have the right at reasonable times during
usual business hours to inspect the facilities of the Partnership, to observe
the Partnership's operations and to examine, audit and make copies of the books
of account and other books and records of the Partnership and other books and
records relating to the reserves, assets, liabilities and expenses of the
Partnership and expenditures by the Management Committee on behalf of the
Partnership; PROVIDED, HOWEVER, that none of the foregoing activities shall be
conducted in a manner that unreasonably interferes with the Partnership's
operations or business or the Management Committee' management thereof. Such
right may be exercised through any agent or employee of a Partner designated in
writing by it or by an independent public accountant, engineer, attorney or
other consultant so designated. The Partner making the request shall bear all
expenses incurred in any inspection, audit or examination made at such Partner's
behest. Should any inspection, audit or examination disclose any errors or
improper charges, the Management Committee shall make, or cause to be made,
appropriate adjustments therefor.
6.2 REPORTS TO PARTNERS.
(a) As soon as practicable and in any event within thirty (30) days
after the end of each calendar month, the Tax Matters Partner shall cause to be
prepared and sent to each Partner unaudited statements of income, cash flow and
changes in retained earnings and Partners' equity, for the month in question and
from the beginning of such Fiscal Year to the end of such month and an unaudited
balance sheet as of the close of such month, all of which shall (i) be prepared
in accordance with GAAP (except that certain footnotes may be omitted) and (ii)
set forth in each case in comparative form the figures for the same monthly
period for the previous fiscal year.
(b) As soon as practicable and in any event within seventy-five (75)
days after the end of each Fiscal Year, the Tax Matters Partner shall provide to
each Partner audited statements of income, retained earnings, cash flow and
Partner's equity, for such Fiscal Year and a balance sheet as of the close of
such Fiscal Year, setting forth in each case in comparative form the figures for
the previous Fiscal Year, prepared and certified as to the scope of its audit by
the accounting firm of Ernst & Young or such other certified public accountants
as may be selected by the Management Committee.
(c) As requested, the Tax Matters Partner shall provide to each
Partner such information as may be necessary for them to comply with applicable
financial reporting requirements of any competent governmental authorities or
agencies or stock exchange on which the securities of any such Partner are
listed including, without limitation, the U.S. Securities and Exchange
Commission and such information regarding the financial position, business,
properties or affairs of the Partnership as a Partner may reasonably request.
6.3 ANNUAL TAX RETURNS.
(a) West Coast MediaNews is hereby designated the "Tax Matters
Partner" for federal income tax purposes pursuant to Section 6231 of the Code
with respect to all taxable years of the Partnership and is authorized to do
whatever is necessary to qualify as such. If West Coast MediaNews is no longer a
Partner or has resigned as the Tax Matters Partner, the Tax Matters Partner
shall be any Partner designated as such by a unanimous vote of the Partners, and
in the absence of a unanimous vote, as shall be determined under applicable
provisions of the Code and/or Regulations. The Tax Matters Partner shall, as
soon as practicable under the circumstances, inform each Partner of all
tax-related matters that are, or have the reasonable potential to become,
material to the Partnership that come to its attention in its capacity as Tax
Matters Partner.
(b) The Tax Matters Partner shall prepare or cause to be prepared all
tax returns required of the Partnership, which returns shall be reviewed in
advance of filing by Ernst & Young LLP or another certified public accountant
selected by the Management Committee. As soon as practicable after the end of
each Fiscal Year, the Tax Matters Partner shall furnish to each Partner such
information in the possession of the Tax Matters Partner requested by such
Partner as necessary to timely fulfill such Partner's federal, state, local and
foreign tax obligations, including Form K-1, or any similar form as may be
required by the Code or the Internal Revenue Service (the "IRS") or, to the
extent any such information is not in the Tax Matters Partner's possession, the
Tax Matters Partner shall take all reasonable steps necessary to have such
information provided to the requesting Partner. No later than forty-five (45)
business days prior to filing with the IRS, the Tax Matters Partner shall
deliver to each Partner for its review a complete copy of the federal income tax
return proposed to be filed by the Partnership. The Tax Matters Partner shall
consider in good faith, consistent with Section 6.3(c) hereof, any comments of
the Partners with respect to such return made within thirty (30) business days
of sending the copy of such return. The Partners shall file their individual or
corporate returns in a manner consistent with the Partnership tax and
information returns.
(c) The Tax Matters Partner shall, consistent with the Business Plan,
use its best efforts to do all acts and take whatever steps are required to
maximize, in the aggregate, the federal, state and local income tax advantages
available to the Partnership and shall defend all tax audits and litigation with
respect thereto. The Tax Matters Partner shall maintain the books, records and
tax returns of the Partnership in a manner consistent with the acts, elections
and steps taken by the Partnership.
6.4 ACTIONS IN EVENT OF AUDIT. If an audit of any of the Partnership's tax
returns shall occur, each Partner shall, at the expense of the Partnership,
participate in the audit. No Partner may contest, settle or otherwise compromise
assertions of the auditing agent which may be adverse to the Partnership or any
Partner without the approval of a unanimous Management Committee. The Management
Committee may, if it determines that the retention of accountants or other
professionals would be in the best interests of the Partnership, retain such
accountants or other professionals, to assist in any such audits. The
Partnership shall indemnify and reimburse the Management Committee for all
expenses, including legal and accounting fees, claims, liabilities, losses, and
damages to the extent borne by the Management Committee, incurred in connection
with any administrative or judicial proceeding with respect to any audit of the
Partnership's tax returns. The payment of all such expenses to which this
indemnification applies shall be made before any distributions are made to the
Partners under Article V hereof. Neither the Tax Matters Partner, nor any other
person shall have any obligation to provide funds for such purpose. The taking
of any action and the incurring of any expense by the Management Committee in
connection with any such proceeding, except to the extent required by law, is a
matter in the sole discretion of the Management Committee.
6.5 TAX ELECTIONS. The Tax Matters Partner shall, in its reasonable
discretion, determine (x) whether or not to cause the Partnership to file an
election under Code section 754 and the Regulations thereunder and a
corresponding election under the applicable section of state and local law, (y)
which method to apply to any asset of the Partnership under Section 704(c) of
the Code consistent with Section 4.3(b) hereof and whether or not to make any
other elections provided for under related state and local laws, and (z) any
other tax elections.
ARTICLE VII
ACTIONS BY PARTNERS
7.1 CONSENTS AND OTHER ACTIONS BY SUN, CALIFORNIA NEWSPAPERS, MWSB AND
MWCNI. In each instance under this Agreement when any consent, approval or other
action is required or authorized to be taken by Sun, California Newspapers, MWSB
and/or MWCNI in their capacity as Partners, and in each instance hereunder when
Sun, California Newspapers, MWSB and/or MWCNI are entitled to the receipt of
notice of any matter, it is hereby agreed by each of the parties hereto (a) that
Sun shall act on behalf of Sun, California Newspapers, MWSB and MWCNI, (b) that
any consent, approval or other action made, given or taken by Sun shall be
deemed to have been made, given and taken on behalf of Sun, California
Newspapers, MWSB and MWCNI and (c) that any notice duly delivered to Sun shall
be deemed to have been duly delivered to Sun, California Newspapers, MWSB and
MWCNI, however notices shall also be sent to California Newspapers, MWSB and
MWCNI.
7.2 MEETINGS. Meetings of the Partners shall be held at the place and time
designated from time to time unanimously by the Partners. The Partners may take
action by the vote of Partners at a meeting in person or by proxy, or without a
meeting by written consent. In no instance where action is authorized by written
consent need a meeting of Partners be called or noticed.
7.3 ACTIONS BY THE PARTNERS. All actions required or permitted to be taken
by the Partners with respect to the Partnership require the vote or consent of
all of the Partners.
ARTICLE VIII
MANAGEMENT
8.1 THE MANAGEMENT COMMITTEE. The business and affairs of the Partnership
shall be managed under the direction and authority of a Management Committee,
who shall annually adopt a Business Plan.
(a) NUMBER, APPOINTMENT AND TERM OF MANAGERS. The Management
Committee shall be comprised of seven members. Four members shall be appointed
by West Coast MediaNews, two members shall be appointed by Donrey and one member
shall be appointed jointly by Sun, California Newspapers, MWSB and MWCNI. The
managers shall act solely as the agents of the Partners appointing them. Each
manager shall serve at the pleasure of the Partner appointing him and until his
successor has been duly appointed, or until his resignation or removal. In
addition, the Chief Executive Officer of the Partnership, as named pursuant to
Section 8.8(a), shall be entitled to attend all meetings and participate in all
discussions of the Management Committee except as to matters regarding the Chief
Executive Officer or as otherwise determined by the Management Committee. Each
Partner shall also be entitled to designate one non-voting observer to attend
and participate in all meetings of the Management Committee.
(b) DUTIES AND POWERS. The Management Committee may exercise all such
powers of the Partnership and do all such lawful acts and things as are not
directed or required to be exercised or done by the Partners. Each member of the
Management Committee may delegate to a representative by written proxy the right
to act on behalf of the member in any respect, including without limitation the
right to attend meetings or telephone conferences, and to vote upon resolutions
with or without a meeting.
8.2 REMOVAL OF MEMBERS; VACANCIES. A member of the Management Committee
may be removed at any time, with or without cause, by the Partner (or Partners)
who appointed such member. Any vacancy on the Management Committee resulting
from removal, resignation, death or incapacity shall be filled by the Partner
(or Partners) who is entitled to appoint such member.
8.3 MEETINGS OF THE MANAGEMENT COMMITTEE; NOTICE. The Management Committee
shall meet in regular meetings held at least quarterly at such time and place as
may from time to time be determined by the Management Committee either in person
or by telephone. Special meetings of the Management Committee may be called by
any member. Written notice of regular and special meetings of the Management
Committee, stating the place, date and hour of the meeting shall be delivered to
each member together with a reasonably detailed agenda for such meeting not less
than five Business Days before the date of the meeting, provided, that the
foregoing notice requirement may be waived by the Management Committee with
respect to any meeting at which at least four (4) members of the Management
Committee (including at least one member appointed by each Partner) vote for
waiver of notice. Notice may be delivered to members in person, by telephone,
telecopy, fax, electronic mail or other means of telecommunication. The meetings
of the Management Committee shall be convened by the chairman (if one has been
elected) or in the absence or unavailability of the chairman, by the member who
requested the meeting.
8.4 QUORUM. Four (4) members of the Management Committee shall constitute
a quorum for the transaction of all such business as shall have been set forth
with reasonable specificity in the agenda accompanying the notice for such
meeting, either in person or by telephone provided that such four (or more)
members who are in attendance at such meeting include members appointed by at
least two Partners. For the transaction of all other business at a regular or
special meeting of the Management Committee, four (4) members of the Management
Committee, whether present in person or by telephone, shall again constitute a
quorum, provided that such four (4) or more members who are in attendance
include members appointed by each of the Partners.
8.5 VOTING. Any matter brought before the Management Committee shall be
decided by a majority of members present, except for matters that require a
unanimous vote of the Management Committee as provided in this Agreement or as
otherwise provided under the laws of the State of Delaware.
8.6 CERTAIN MATTERS REQUIRING A UNANIMOUS VOTE OF THE MANAGEMENT
COMMITTEE. The Partnership shall not, without a unanimous vote of all seven
members of the Management Committee:
(a) admit any new Partners to the Partnership;
(b) sell, lease, transfer or otherwise dispose of (other than PRO
RATA to the Partners) substantially all of the assets, property and goodwill of
any newspaper or related publication owned by the Partnership;
(c) except for distributions to Partners pursuant to Section 5.1
which may be deemed to be advances, commit or cause the Partnership to invest in
or purchase the securities of, or any interests of, any person except short-term
investments in U.S. Government securities, federally-insured certificates of
deposit, repurchase agreements for such securities, or commercial paper rated
A-1 or better by Standard and Poor's or P-1 or better by ▇▇▇▇▇'▇ or its
equivalent by a nationally recognized statistical rating organization;
(d) commit or cause the Partnership to acquire all or substantially
all of the capital stock or all or substantially all of the assets of any person
or business;
(e) obligate the Partners to make any Additional Capital Contribution
or adjust any Partner's Percentage Interest;
(f) cause the Partnership to create, or enter into, any corporation,
partnership, joint venture, association, trust or other business entity or to
merge or consolidate with any person;
(g) except as provided in Section 8.9 hereof, commit or cause the
Partnership to enter into any contract, agreement, understanding or transaction
(i) with any person, that is other than in the ordinary course of the
Partnership's business, (ii) with a Partner or an affiliate of any Partner,
which would have the result of imposing terms or conditions on the Partnership
that are more onerous or less advantageous to the Partnership than those
customarily provided by such Affiliate to its affiliates or (iii) with a Partner
or an Affiliate of any Partner that either involves goods, services or
properties of a value of more than $1,000,000 in the aggregate over the entire
term of such contract, agreement, understanding or transaction, or does not
reflect standard and customary commercial terms;
(h) accept the contribution of any additional newspapers or related
assets from any Partner as an Additional Capital Contribution under the
provision of Section 3.1(c) hereof;
(i) commit or cause the Partnership (i) to borrow any funds; (ii) to
enter into any capitalized leases, in each case in excess of an aggregate of
$500,000 per year (on a combined basis), except for refinancings or extensions
of any existing indebtedness of the Partnership (including, without limitation,
the Indebtedness) or (iii) enter into any hedge agreement;
(j) make any single Capital Expenditure in excess of $1.0 million or
make Capital Expenditures in any Fiscal Year in excess of $2.5 million in the
aggregate;
(k) except as permitted pursuant to Article XI hereof, dissolve or
liquidate the Partnership;
(l) make any material change to the nature of the Partnership's
business as described in Section 2.3.; or,
(m) adopt any portion of the Business Plan which would, of itself,
require a unanimous vote of the Management Committee.
8.7 ACTION BY CONSENT. Any action required or permitted to be taken on
behalf of the Partnership at any meeting of the Management Committee may be
taken without a meeting by written consent signed by the number of members of
the Management Committee required to approve such action, provided that such
members include at least one member appointed by each of the Partners.
8.8 EXECUTIVE OFFICERS.
(a) The Management Committee shall elect a chief executive officer of
the Partnership (the "Chief Executive Officer") who shall have the
responsibility for managing the day-to-day business operations and affairs of
the Partnership and supervising its other officers, subject to the direction,
supervision and control of the Management Committee and the Partners. In
general, the Chief Executive Officer shall have such other powers and perform
such other duties as usually pertain to the office of a chief executive officer,
and as from time to time may be assigned to him by the Management Committee,
including, without limitation, the authority to retain and terminate employees
of the Partnership. The powers and duties of the Chief Executive Officer shall
at all times be subject to the provisions of this Agreement.
(b) The Management Committee shall also elect a chief financial
officer of the Partnership (the "Chief Financial Officer") who shall have the
responsibility for managing the Partnership's financial affairs and books of
account, subject to the direction of the Management Committee, the Chief
Executive Officer, and the Partners. In general, the Chief Financial Officer
shall have such other powers and perform such other duties as usually pertain to
the office of a chief financial officer, and as from time to time may be
assigned to him by the Management Committee. The powers and duties of the Chief
Financial Officer shall at all times be subject to the provisions of this
Agreement.
(c) The Management Committee may in its discretion also elect from
time to time such other Executive Officers as it may determine, each of whom
shall have such powers and perform such duties as usually pertain to such
offices and as from time to time may be assigned to such persons by the
Management Committee. The powers and duties of each Executive Officer shall be
subject to the provisions of this Agreement.
(d) Both the Partnership's Chief Executive Officer (other than with
the approval of at least two of the Partners) and the Chief Financial Officer
shall be employees of the Partnership and shall not simultaneously be employees
of any Partner nor any Affiliate of any Partner.
(e) Subject to the provisions of this Agreement and to the directives
and policies of the Management Committee, the Chief Executive Officer, the Chief
Financial Officer and the other officers of the Partnership shall have the
power, acting individually or jointly, to represent and bind the Partnership in
all matters, in accordance with the scope of their respective duties subject to
Section 8.6 hereof and any other limitations imposed by the Management
Committee.
8.9 PROVISION OF SERVICES TO PARTNERSHIP BY MEDIANEWS. The Partners hereby
agree that the Partnership shall obtain management services, operating,
administrative, accounting, electronic media and/or other support services,
newsprint purchase services, financial reporting services, human resource
services, risk management services, tax reporting and tax return preparation
services and other similar services which MediaNews Group, Inc., a Delaware
corporation, and the parent company of West Coast MediaNews ("MediaNews")
provides to its own operating affiliates (collectively, the "MediaNews Support
Services") from MediaNews. In exchange for these services, the Partnership shall
pay MediaNews, on a monthly basis, an amount equal to 1.25 percent of the
Partnership's gross revenues (as calculated in accordance with generally
accepted accounting principles); provided, HOWEVER, that the amount of 1.25
percent may not be altered at any time without the unanimous vote of the
Management Committee. All services and supplies including employee benefits and
newsprint, shall be provided at cost without any adjustment for overhead or any
other direct or indirect payment to MediaNews or its affiliates. MediaNews by
agreeing to provide management services, agrees to perform those services with
the degree of care that a reasonably prudent person would exercise and shall not
enter into any transaction in which it may have a conflict of interest without
the unanimous consent of the members of the Management Committee. If MediaNews
should at anytime, due to bankruptcy, insolvency or similar incapacity, become
unable to continue to provide such services on behalf of the Partnership, the
Partners shall, by mutual agreement, make appropriate arrangements for the
provisions of such services by one or more of the other Partners or their
Affiliates, or by one or more third parties.
ARTICLE IX
TRANSFER OF PARTNERSHIP INTERESTS;
ADDITIONAL AND SUBSTITUTE PARTNERS
9.1 PROHIBITED TRANSFERS. No Partner may Transfer its Interest or any part
thereof in any way whatsoever, and any such Transfer in violation of this
Article IX shall be null and void as against the Partnership, except as
otherwise permitted herein or provided by law, and the Transferring or
withdrawing Partners shall be liable to the Partnership and the other Partners
for all damages that they may sustain as a result of such attempted Transfer or
withdrawal.
9.2 PERMITTED TRANSFERS BY PARTNERS. No Partner may Transfer all or a
portion of its Interest unless:
(a) the Partner desiring to consummate such Transfer (the "Assigning
Partner"), and the prospective Transferee each execute, acknowledge and deliver
to all the other Partners such instruments of transfer and assignment with
respect to such Transfer and such other instruments as are reasonably
satisfactory in form and substance to all the Partners (including those written
instruments described in 9.6(d));
(b) the Transfer will not violate any federal or state laws;
(c) the Transfer will not cause any violation of or an event of
default under, or result in acceleration of any indebtedness under, any note,
mortgage, loan, or similar instrument or document to which the Partnership is a
party;
(d) the Transfer will not cause a material adverse tax consequence to
the Partnership or any of the Partners including but not limited to any material
adverse tax consequence resulting, directly or indirectly, from the termination
of the Partnership under section 708 of the Code;
(e) the Transfer will not cause the Partnership to be classified as
an entity other than a partnership for purposes of the Code; and,
(f) except for transfers of a Partner's Interest to an Affiliate of
such Partner, any amendments to this Agreement required by or made a condition
by any Partner to its consent to the transfer, have been made.
9.3 SUBSTITUTE PARTNER. A Transferee of the whole or any part of an
Interest who satisfies the conditions set forth in Section 9.2 hereof shall have
the right to become a Partner in place of the Assigning Partner only if all of
the following conditions are satisfied:
(a) the fully executed and acknowledged written instrument of
assignment that has been filed with the Partnership sets forth a statement of
the intention of the Assigning Partner that the Transferee become a Substitute
Partner in its place;
(b) the Transferee executes, adopts and acknowledges this Agreement
(as it may be amended) and agrees to assume all the obligations of the Assigning
Partner; and,
(c) any costs of the Transfer incurred by the Partnership shall have
been reimbursed by the Assigning Partner or the Transferee to the Partnership.
9.4 INVOLUNTARY WITHDRAWAL BY A PARTNER. With respect to the Transfer of a
Partner's Interest due to bankruptcy, or other insolvency, involuntary
dissolution or liquidation, or foreclosure (or other exercise of remedies by a
party holding a security interest in such Interest) (each, an "Involuntary
Transfer"), the Partner with respect to whom such event occurred shall forthwith
cease to be a Partner and shall have no rights or powers as a Partner except for
such rights as are specified pursuant to Articles III, IV and V and Section
10.3(b) hereof.
9.5 RIGHT OF FIRST REFUSAL FOR SALE OF PARTNERSHIP INTERESTS.
(a) Except as otherwise herein provided, no Partner may voluntarily
transfer all or any part of its Interest in the Partnership to any party (i) in
any case prior to January 1, 2004 or (ii) after that date unless it has complied
with the procedures of Section 9.2 and first offers to sell such Interest to the
other Partner(s) pursuant to the terms of this Section 9.5; PROVIDED that this
Section 9.5 shall not be applicable with respect to a Transfer to an Affiliate
of the Transferring Partner.
(b) A Partner (the "Offering Partner") who has received a firm,
written, bona fide offer from a third-party for its Interest ( a "Third Party
Offer") or who has otherwise determined to offer its Interest for sale shall,
before offering such Interest or agreeing to accept such offer for such Interest
(in either case, the "Offered Interest"), give written notice to the other
Partners that are not Affiliates of the Offering Partner (each an "Option
Partner") of such offer or intent including, in the case of a Third Party Offer,
a copy of such Third Party Offer and a complete description thereof including,
by way of example but not of limitation, the nature and extent of such Third
Party Offer, the purchase price therein, the terms of payment and the time for
performance.
(c) Upon receiving the Offering Partner's written notice pursuant to
Section 9.5(b), the Option Partner(s) shall have a period of thirty (30) days
following the date of receipt by the Option Partner of the Offering Partner's
notice to elect to purchase the Offered Interest at the price determined in
accordance with Section 9.5(f). If an Option Partner desires to purchase the
Offered Interest it shall give written notice to the Offering Partner in the
manner set forth in Section 13.2 hereof within such 30-day period. To be
effective, this notice must be received by the Offering Partner within such
30-day period. In no event may the Option Partner(s) elect to acquire less than
all of the Offered Interest. To the extent there are more than one Option
Partners, the Option Partners accepting such offer shall be jointly and
severally liable to the Offering Partner to purchase all of the Offered
Interest.
(d) The closing of the sale and purchase of the Offered Interest
shall be promptly completed, but in any event, to the extent practicable, within
ninety (90) days after the receipt of the Option Partner(s)' notice of
acceptance (or such later date as necessary to obtain any necessary regulatory
approvals). The Management Committee shall assist in coordinating the closing.
At the closing, the Offering Partner shall sell the Offered Interest, free and
clear of all liens and encumbrances, and execute and deliver such assignment(s)
and all other documents or other instruments of assignment or conveyance
necessary to effect and evidence the assignment. At the closing, the Option
Partner(s) shall deliver to the Offering Partner cash, a certified or official
bank check or shall pay by wire transfer of immediately available funds for the
applicable purchase price.
(e) If the Option Partner(s) do not elect to purchase all of the
Offered Interest pursuant to this Section 9.5, then the Offering Partner shall
be free to sell, assign, transfer, pledge, encumber or otherwise dispose of the
Offered Interest pursuant to the Third Party Offer or, in the case of a
non-Third Party Offer, to any third party for an amount equal to Fair Market
Value of the Offered Interest, as hereunder determined, in either case, within
six month's after the date of the Option Partner(s)' notice of refusal or after
the expiration of the 30-day response period, whichever occurs first. For
purposes of this Section 9.5(e), a sale shall be deemed made when there is
executed a legally binding agreement between the Offering Partner and the
prospective purchaser, subject to no condition or contingency which permits the
prospective purchaser to terminate or cancel the agreement, except for the
default of the Offering Partner, and routine approvals or conditions. If a sale
within the meaning of this Section 9.5(e) is not made within such 6-month
period, then the Offered Interest shall remain subject to the restrictions of
this Agreement and must again be first offered to the Option Partner(s) if the
Offering Partner thereafter wishes to sell its Interest to a third party.
(f) (i) In the case of a Third Party Offer, if the consideration
offered by the prospective purchaser is offered in cash and/or a promissory or
other similar instrument to be issued by the prospective purchaser, the price
shall be the price offered by such prospective purchaser. If (A) the
consideration offered by the prospective purchaser is offered in a form other
than cash and/or a promissory note or other similar instrument or (B) the
Offering Partner has not received a Third Party Offer, then in either case, the
price shall be the Fair Market Value of the Offered Interest, as defined below.
(ii) For the purposes of this Agreement, "Fair Market Value of
the Offered Interest" shall be the amount that would be paid for the Offered
Interest in the Partnership as a going concern, on a consolidated basis, by a
willing buyer to a willing seller. The Offering Partner and the Option
Partner(s) may mutually agree as to the Fair Market Value of the Offered
Interest in question. If the Offering Partner and the Option Partner(s) are
unable to agree on the Fair Market Value of the Offered Interest within fifteen
(15) days after the Offering Partner's written notice of the proposed sale, then
in such event Fair Market Value of the Offered Interest shall be determined
pursuant to Section 9.5(f)(iii) by two independent qualified appraisers, one to
be appointed by the Offering Partner and the other to be appointed by the Option
Partner(s).
(iii) The two independent appraisers shall be appointed within
fifteen (15) days after receipt by the Option Partner(s) of the notice of
proposed sale. If either side fails to appoint an appraiser within such period,
then its right to do so shall lapse and the appraisal made by the one
independent appraiser who is timely appointed shall be the Fair Market Value of
the Offered Interest. If two appraisals are made, and if the two appraised
values differ by less than 15 percent, Fair Market Value of the Offered Interest
shall be the average of the two appraisals, and if the two appraised values
differ by more than 15 percent, the two appraisers shall jointly select a third
appraiser and, the Fair Market Value of the Offered Interest shall be the
average of the two of the three appraisals that are closest together in amount.
All appraisals shall be made within thirty (30) days of appointment of an
appraiser, and written notice of the results of such appraisals shall be given
to all parties within such 30-day period. The Fair Market Value of the Offered
Interest shall be determined based upon the value of the Partnership in its
entirety as a going concern, with the Offering Partner receiving a proportionate
part of such total value based upon its Percentage Interest. In making any
appraisal hereunder, all debts and liabilities shall be taken into account. Each
side shall pay the fees of the appraiser selected by them.
9.6 TAG-ALONG RIGHTS REGARDING SALES OF PARTNERSHIP INTERESTS.
(a) Except for Transfers of a Partner's Interest to an Affiliate of
such Partner and except following an Involuntary Transfer of a Partner's
Interest, in any case where a Partner has declined to exercise its rights of
first refusal under Section 9.5, no Partner (the "Tag-Along Offeror") shall,
individually or collectively, in any one transaction or series of transactions,
directly or indirectly, sell or otherwise dispose of its Interest, to any person
(a "Third Party") unless the terms and conditions of such sale or other
disposition to such Third Party shall include an offer to each other Partner
(each, a "Tag-Along Offeree") to include, at the option of each Tag-Along
Offeree, in the sale or other disposition to the Third Party, such Tag-Along
Offeree's Interest (the "Tag-Along Right"). Each Partner proposing to effect
such a sale or other disposition shall send a written notice (the "Tag-Along
Notice") to each of the Tag-Along Offerees setting forth the terms of the offer.
At any time within 15 days after its receipt of the Tag-Along Notice, each
Tag-Along Offeree may exercise its Tag-Along Option by furnishing written notice
of such exercise (the "Tag-Along Exercise Notice") to the Tag-Along Offeror.
(b) If the proposed sale or other disposition to the Third Party by
the Partner providing the Tag-Along Notice is consummated, each Tag-Along
Offeree shall have the right to sell such Third Party all of its Interest.
(c) Each Partner participating in the sale or other disposition to
the Third Party shall have the right, in their sole discretion, at all times
prior to consummation of the proposed sale or other disposition giving rise to
the Tag-Along Right granted by this Section to abandon, rescind, annul, withdraw
or otherwise terminate such sale or other disposition as it relates to such
Partner's Interest whereupon that Partner's Tag-Along Rights in respect of such
sale or other disposition pursuant to this Section shall become null and void,
and neither the Tag-Along Offeror nor the Third Party shall have any liability
or obligations to the withdrawing Tag-Along Offeree with respect thereto by
virtue of such abandonment, rescission, annulment, withdrawal or termination.
(d) The purchase of each Tag-Along Offeree's Interest pursuant to
this Section shall be on the same terms and conditions, including but not
limited to the purchase price (as adjusted for any difference in size of the
respective Interest's), as are applicable to the Partner giving the Tag-Along
Notice, which shall be stated in such Tag-Along Notice. In determining the
purchase price of any Interest under this Section, the aggregate purchase price
of all Interests being acquired by the Third Party shall be increased to the
extent any of the selling Partners shall receive additional compensation (A) for
covenants not to compete or (B) for services (such as pursuant to consulting
agreements or management agreements) which are in excess of the amounts which
would be payable for comparable services as a result of an arm's-length
transaction.
(e) If, within 15 days after receipt of a Tag-Along Notice, any
Tag-Along Offeree has not delivered a Tag-Along Exercise Notice, such Tag-Along
Offeree will be deemed to have waived any and all of its rights with respect to
the sale or other disposition of Interests described in such Tag-Along Notice
and the other Partners shall have 135 days following the expiration of such
15-day period in which to consummate such sale or other disposition on terms not
more favorable to such other Partners than those described in the Tag-Along
Notice. If, at the end of 150 days following receipt of such Tag-Along Notice,
the sale or other disposition described therein has not been completed, then all
restrictions on sale or other disposition contained in this Agreement shall
again be in effect.
9.7 WEST COAST MEDIANEWS DRAG-ALONG RIGHTS.
(a) If, at any time after January 1, 2005, West Coast MediaNews
receives a bona fide written offer to purchase all of the Interests in the
Partnership from an independent third party, in one transaction or a series of
transactions, and West Coast MediaNews determines to accept such offer, then,
notwithstanding any other provisions of this Agreement, at West Coast
MediaNews's election, all other Partners shall, subject to (b) below, be
required to sell their respective Interests on the same terms and conditions
(except for adjustments based upon the relative size of Percentage Interests) as
have been offered to West Coast MediaNews (the West Coast MediaNews Drag-Along
Rights); PROVIDED THAT the aggregate purchase price of all Interests being
acquired by the Third Party shall be increased to the extent any of the selling
Partners shall receive additional compensation (A) for covenants not to compete
or (B) for services (such as pursuant to consulting agreements or management
agreements) which are in excess of the amounts which would be payable for
comparable services as a result of an arm's-length transaction; AND FURTHER
PROVIDED THAT all other Partners receive fair market value (as determined in
accordance with Section 9.5(f)) for their Interest.
(b) If West Coast MediaNews elects to exercise its Drag-Along Rights,
it shall provide written notice (the "Drag-Along Notice") to each other Partner
of such election at least 30 days in advance of the closing date for such
transaction, which notice shall describe the terms and conditions of such offer
and the proposed closing date. Upon receipt of the Drag-Along Notice, each other
Partner shall be obligated to sell its entire Interest to the Third Party making
such offer on the terms set forth in the Drag-Along Notice. However, if the
transaction is not completed within 90 days after the giving of the Drag-Along
Notice, then any sale thereafter by West Coast MediaNews of its Interest with
respect to which it wishes to exercise its Drag-Along Rights shall require a new
notice under this Section 9.7(b).
9.8 ADMISSION OF ADDITIONAL PARTNERS. A person shall become an Additional
Partner only if and when each of the following conditions is satisfied:
(a) the Management Committee, unanimously and in its sole and
absolute discretion, determine the Additional Contribution Terms;
(b) the Partnership has complied with the terms of Section 3.1(b);
(c) all of the Partners consent in writing to such admission, which
consent may be withheld by any such Partner in its sole and absolute discretion;
(d) the Management Committee receives written instruments (including,
without limitation, such person's consent to be bound by this Agreement (as it
may be amended) as an Additional Partner) that are in a form satisfactory to the
Management Committee (as determined in its sole and absolute discretion);
(e) the Partnership has received such person's Capital Contribution;
and,
(f) any amendments to this Agreement required by or made a condition
by any Partner to its consent to the transfer, have been made.
9.9 DONREY PUT OPTION.
(a) At any time on or after January 1, ▇▇▇▇, ▇▇▇▇▇▇ may, by written
notice to West Coast MediaNews and Gannett, require West Coast MediaNews and
Gannett to cause the Partnership to enter into a contract to redeem all of
Donrey's Interest in the Partnership in exchange for a distribution of cash
equal to the then-determined fair market value of such Interest (net of any
liabilities allocable to such Interest) plus the amounts described in Section
9.9(b) below within 2 years of the date the fair market value of such Interest
is determined under this Section 9.9. Such fair market value shall be determined
in accordance with the procedures set forth in Section 9.5(a) through (f) above,
PROVIDED, HOWEVER, that the period for negotiation between the Partners set
forth in Section 9.5(f)(ii) shall be 90 days. At the time such fair market value
is determined, the Interest of Donrey in the Partnership shall terminate and
Donrey shall be treated as a "retiring partner" for purposes of Code Section 736
and the payment described in this Section 9.9(a) shall be treated as described
in Code Section 736(b).
(b) Upon the date of the determination of such fair market value,
Donrey's right to receive any distribution or allocation of Profits from the
Partnership under Section 4.2(b) shall convert automatically into a first
priority interest in the Profits of the Partnership equal to the product of (x)
the determined fair market value of such Interest and (y) the 30-day London
Inter-Bank Offered Rate ("LIBOR") plus (I) 1 percent for the first 6-month
period following the date of determination of the fair market value; (II) 2
percent for the seventh through ninth months following the date of determination
of the fair market value; (III) 3 percent for the tenth through twelfth months
following the date of determination of the fair market value; (IV) 4 percent for
the thirteenth through fifteenth months following the date of determination of
the fair market value; (V) 5 percent for the sixteenth through eighteenth months
following the date of determination of the fair market value; (VI) 6 percent for
the nineteenth through twenty-first months following the date of determination
of the fair market value; and (VII) 7 percent for the twenty-second through
twenty-fourth months following the date of determination of the fair market
value. The payments described in this Section 9.9(b) shall be treated as
distributions of partnership income as described in Code Section 736(a).
(c) In connection with Donrey's exercise of the put option described
in subsection (a) above, each of the other Partners shall be obligated,
effective as of the closing for the Partnership's acquisition of Donrey's
Interest in the Partnership, to make as an additional capital contribution their
pro rata share of such additional cash sums as may be required by the
Partnership to acquire Donrey's Interest in the Partnership under the terms of
this Section 9.9. Notwithstanding the foregoing, however, (i) if West Coast
MediaNews shall advise Gannett, in its sole discretion, of its election, with
Gannett's concurrence, to contribute less than its pro rata share of such
required additional capital contributions, then Gannett shall, at its option, be
permitted to contribute the portion of such funds which West Coast MediaNews
elects not to contribute and (ii) if at the time Donrey exercises its put
Gannett's Percentage Interest is less than 20%, Gannett shall, in its sole
election, in any event be permitted to contribute so much of the additional cash
sums required for the Partnership to acquire Donrey's interest as shall
appropriately cause Gannett's Percentage Interest (after the making of both
Gannett's and West Coast MediaNews' capital contribution) to be increased to
20%. Immediately following the making of the additional capital contributions
required for the Partnership to acquire Donrey's interest, Gannett's and West
Coast MediaNews' Percentage Interests shall be appropriately re-adjusted.
9.10 RESERVED.
9.11 PARTNERSHIP CALL OPTION RE SECTION 9.9 PUT OPTION.
(a) At any time subsequent to the exercise by Donrey of its put
option set forth in Section 9.9 of this Agreement, the Partnership shall have
the option, by written notice to Gannett, to redeem all of Gannett's Interest in
the Partnership, if at the time of such notice the Percentage Interest of
Gannett shall be less than 20%.
(b) Upon the exercise by the Partnership of its option set forth in
subsection (a) hereof, the Partnership shall undertake to redeem all of
Gannett's interest in the Partnership, in exchange for a distribution of cash
equal to the then-determined fair market value of such Interest (net of any
liabilities allocable to such Interest) plus the amounts described in Section
9.11(c) below within 2 years of the date the fair market value of such Interest
is determined under this Section 9.11. Such fair market value shall be
determined in accordance with the procedures set forth in Section 9.5(a) through
(f) above, PROVIDED, HOWEVER, that the period for negotiation between the
Partners set forth in Section 9.5(f)(ii) shall be 90 days. At the time such fair
market value is determined, the Interest of Gannett in the Partnership shall
terminate and Gannett shall be treated as a "retiring partner" for purposes of
Code Section 736 and the payment described in this Section 9.11(b) shall be
treated as described in Code Section 736(b).
(c) Upon the date of the determination of such fair market value,
Gannett's right to receive any distribution or allocation of Profits from the
Partnership under Section 4.2(b) shall convert automatically into a first
priority interest in the Profits of the Partnership equal to the product of (x)
the determined fair market value of such Interest and (y) LIBOR plus (I) 1
percent for the first 6-month period following the date of determination of the
fair market value; (II) 2 percent for the seventh through ninth months following
the date of determination of the fair market value; (III) 3 percent for the
tenth through twelfth months following the date of determination of the fair
market value; (IV) 4 percent for the thirteenth through fifteenth months
following the date of determination of the fair market value; (V) 5 percent for
the sixteenth through eighteenth months following the date of determination of
the fair market value; (VI) 6 percent for the nineteenth through twenty-first
months following the date of determination of the fair market value; and (VII) 7
percent for the twenty-second through twenty-fourth months following the date of
determination of the fair market value. The payments described in this Section
9.11(c) shall be treated as distributions of partnership income as described in
Code Section 736(a).
9.12 ACKNOWLEDGMENT OF PLEDGES OF INTERESTS.
(a) Donrey and Gannett hereby each acknowledges that West Coast
MediaNews's Interest in the Partnership has been pledged as security under an
Amended and Restated Credit Agreement dated as of January 2, 2001, as amended,
among MediaNews Group, Inc., The Bank of New York, as agent, and other banks.
(b) West Coast MediaNews and Gannett each hereby acknowledges that DR
Partners has pledged Donrey's Interest in the Partnership under the following
agreements: (i) the Amended and Restated Credit Agreement among DR Partners,
NationsBank and other banks dated as of December 15, 1993; and (ii) the Senior
Secured Note Purchase Agreement dated as of December 15, 1993.
ARTICLE X
DISSOLUTION AND LIQUIDATION
10.1 DISSOLUTION.
(a) The Partnership shall be dissolved upon the first to occur (each
a "Dissolution Event"):
(i) December 31, 2048;
(ii) At any time after January 1, 2004, the election by written
notice to the other Partners by one or more Partners (the "Electing Partner") to
terminate the Partnership prior to December 31, 2048; PROVIDED, HOWEVER, that
such right may be exercised at any time in connection with an Involuntary
Transfer of a Partner's Interest or to the extent required to effect compliance
with the provisions of any indenture applicable to publicly held indebtedness of
a Partner; or,
(iii) The occurrence of any other event specified under the
Delaware Uniform Partnership Law (6 Del. C. ss. 15-801 et seq.) as one effecting
such dissolution.
(b) Notwithstanding the provisions of subsection (a)(ii) above, a
dissolution of the Partnership shall not occur if, within 10 business days of
receipt of the written notice described in subsection (a)(ii) above, the
Partners other than the Partner who is the Electing Partner provide written
notice to the Electing Partner of their election to continue the business of the
Partnership and of their undertaking to cause the Partnership to enter into a
contract to redeem all of the Interest in the Partnership of the Partner
electing to terminate the Partnership, in exchange for a distribution of cash
equal to the then-determined fair market value of such Interest (net of any
liabilities allocable to such Interest) plus the amounts described in the second
to last sentence of this subsection within 2 years of the date the fair market
value of such Interest is determined under this Section 10.1(b). Such fair
market value shall be determined in accordance with the procedures set forth in
Section 9.5(a) through (f) above, provided, however, that the period for
negotiation between the Partners set forth in Section 9.5(f)(ii) shall be 90
days. At the time such fair market value is determined, the Interest of the
Electing Partner in the Partnership shall terminate and Electing Partner shall
be treated as a "retiring partner" for purposes of Code Section 736 and the
payment described in this Section 10.1(a) shall be treated as described in Code
Section 736(b).
(c) Upon the date of the determination of such fair market value, the
Electing Partner's right to receive any distribution or allocation of Profits
from the Partnership under Section 4.2(b) shall convert automatically into a
first priority interest in the Profits of the Partnership equal to the product
of (x) the determined fair market value of such Interest and (y) LIBOR plus (I)
1 percent for the first 6-month period following the date of determination of
the fair market value; (II) 2 percent for the seventh through ninth months
following the date of determination of the fair market value; (III) 3 percent
for the tenth through twelfth months following the date of determination of the
fair market value; (IV) 4 percent for the thirteenth through fifteenth months
following the date of determination of the fair market value; (V) 5 percent for
the sixteenth through eighteenth months following the date of determination of
the fair market value; (VI) 6 percent for the nineteenth through twenty-first
months following the date of determination of the fair market value; and (VII) 7
percent for the twenty-second through twenty-fourth months following the date of
determination of the fair market value. The payments described in this Section
10.1(c) shall be treated as distributions of partnership income as described in
Code Section 736(a).
10.2 ELECTION TO CONTINUE THE BUSINESS. The Partnership shall also not be
dissolved pursuant to a Dissolution Event specified in Sections 10.1(a)(i) or
(iii) (except as otherwise provided in the Act), if, within 20 business days of
such Dissolution Event, all the remaining Partners unanimously agree in writing
to continue the business of the Partnership.
10.3 CLOSING OF AFFAIRS.
(a) In the event of the dissolution of the Partnership for any
reason, and in the absence of an election pursuant to Section 10.2 hereof to
continue the business of the Partnership, the Management Committee shall
commence to close the affairs of the Partnership, to liquidate or retain for
distribution to the Partners its investments and to terminate the Partnership,
in each instance in such manner as the Management Committee may reasonably
determine to be appropriate, provided, however, that no distribution of any
Partnership property shall be made to any of the Partners (except for PRO RATA
distributions) except upon the prior approval of all of the Partners. Upon
complete liquidation of the Partnership's property and compliance with the
distribution provisions set forth in Section 10.3(b) hereof, the Partnership
shall cease to be such, and the Management Committee shall cause to be executed,
acknowledged and filed all certificates necessary to terminate the Partnership.
(b) In liquidating the Partnership, the assets of the Partnership
shall be applied to the extent permitted by the Act in the following order of
priority:
(i) FIRST, to pay the costs and expenses of the closing of the
affairs and liquidation of the Partnership;
(ii) SECOND, to pay the matured debts and liabilities of the
Partnership;
(iii) THIRD, to establish reserves adequate to meet any and all
contingent or unforeseen liabilities or obligations of the Partnership, provided
that at the expiration of such period of time as the Management Committee may
deem advisable, the balance of such reserves remaining after the payment of such
contingencies or liabilities shall be distributed as hereinafter provided;
(iv) FOURTH, to all Partners in proportion to each Partner's
Percentage Interest in the Partnership, after taking appropriate account of, and
making appropriate adjustments for, (A) any Indebtedness then remaining
outstanding which is attributable to any Partnership assets previously
contributed by a particular partner, and (B) any portion of any required capital
contributions or accrued but unpaid interest described in either Section 3.1(b)
or 3.1(c) of this Agreement which then remains outstanding, (provided, however,
that to the extent that any Partner has a finally adjudicated indemnity
obligation to any other Partner, any distribution that would otherwise be
distributed to the Partner subject to such obligation shall be distributed to
the Partner(s) entitled to the benefit of the indemnity obligation to the extent
thereof).
(c) No Partner shall have any obligation to restore a deficit balance
in its Capital Account.
ARTICLE XI
AMENDMENT TO AGREEMENT
Amendments to this Agreement and to the Certificate of Formation of the
Partnership shall be approved in writing by all of the Partners. An amendment
shall become effective as of the date specified in the Partners' approval or if
none is specified as of the date of such approval or as otherwise provided in
the Act.
ARTICLE XII
INDEMNIFICATION
12.1 GENERAL. From and after the Closing, the Partners shall indemnify each
other as provided in this Article XII. As used in this Agreement, the term
"Damages" shall mean all liabilities, demands, claims, actions or causes of
action, regulatory, legislative or judicial proceedings or investigations,
assessments, levies, losses (including, without limitation, any adverse tax
consequences to other parties arising directly or indirectly from a violation of
a covenant in this Agreement by a party), fines, penalties, damages, costs and
expenses, including, without limitation: reasonable attorneys', accountants',
investigators', and experts' fees and expenses sustained or incurred in
connection with the defense or investigation of any such claim.
12.2 INDEMNIFICATION OBLIGATIONS. Notwithstanding any other provision of
this Agreement, each party (an "Indemnifying Party") shall defend, indemnify,
save and keep harmless the other Partners, the Partnership and their respective
successors and permitted assigns (collectively, the "Indemnified Parties")
against and from any and all Damages sustained or incurred by any of them
resulting from or arising out of or by virtue of:
(a) any breach of any representation or warranty made by the
Indemnifying Party in this Agreement or in any closing document delivered to the
Indemnified Parties in connection with this Agreement;
(b) any breach by the Indemnifying Party of, or failure by the
Indemnifying Party to comply with, any of its covenants or obligations under
this Agreement (including, without limitation, their obligations under this
Article XII); or,
(c) any indemnification obligation of such party or any affiliate
thereof arising under the provisions of Article XI of the Contribution
Agreement.
In no event, however, shall any party be liable to indemnify the other
parties with respect to any breach of which such other Partner(s) had actual
knowledge prior to the Closing.
Any indemnification obligation arising under this Article XII and/or
Article X of the Contribution Agreement shall be discharged by a capital
contribution by the Partner owing such obligation to the Partnership in the
amount of the Damages relating thereto. Any payment by the Partnership of
Damages to which an indemnification obligation relates shall be charged as a
distribution to the Indemnifying Partner and taken into account for purposes of
current and future distributions made by the Partnership pursuant to Section
5.1. In addition, no item of Partnership property shall be revalued to reflect
such indemnification payment. From the date of determination of such obligation
(which shall be the date agreed by the parties or the date of a final binding
determination by a mediator or the date of a final, non-appealable determination
by a court of competent jurisdiction, as applicable) and until such obligation
(and all accrued interest, if any, with respect thereto) has been paid in full
in cash or other immediately available funds, all cash distributions to which a
Partner shall otherwise be entitled to receive pursuant to Section 5.1(a)
hereof, shall instead be retained by the Partnership and credited to the
discharge of the obligation to make such capital contribution and to pay accrued
but unpaid interest as provided in Section 3.1(c) hereof.
12.3 EXCLUSIVE REMEDY. The sole and exclusive remedy of Indemnified Parties
with respect to any and all claims relating to the subject matter of this
Agreement shall be pursuant to the indemnification provisions set forth in this
Article XII.
12.4 THIRD PARTY CLAIMS. Promptly following the receipt of notice of any
claim for Damages or for equitable relief which are asserted or threatened by a
party other than the parties hereto, their successors or permitted assigns (a
"Third Party Claim"), the party receiving the notice of the Third Party Claim
shall (a) notify the other Partners in writing in accordance with Section 13.2
hereof of its existence setting forth with reasonable specificity the facts and
circumstances of which such party has received notice and (b) if the party
giving such notice is an Indemnified Party, specifying the basis hereunder upon
which the Indemnified Party's claim for indemnification is asserted. No failure
to give notice of a claim shall affect the indemnification obligations of the
Indemnifying Party hereunder, except to the extent that the Indemnifying Party
can demonstrate that such failure materially prejudiced such Indemnifying
Party's ability to successfully defend the matter giving rise to the claim. The
Indemnified Party shall tender the defense of a Third Party Claim to the
Indemnifying Party.
The Indemnified Party shall not have the right to defend or settle such
Third Party Claim. The Indemnified Party shall have the right to be represented
by counsel at its own expense in any such contest, defense, litigation or
settlement conducted by the Indemnifying Party. The Indemnifying Party shall
lose its right to defend and settle the Third Party Claim if it shall fail to
diligently contest the Third Party Claim. So long as the Indemnifying Party has
not lost its right and/or obligation to defend and settle as herein provided,
the Indemnifying Party shall have the right to contest, defend and litigate the
Third Party Claim and shall have the right, in its discretion exercised in good
faith, and upon the advice of counsel, to settle any such matter, either before
or after the initiation of litigation, at such time and upon such terms as it
deems fair and reasonable; provided that in any event the Indemnifying Party
shall consult with the Indemnified Party with respect to settling such matter
which decision shall be made by mutual agreement of the Indemnifying Party and
the Indemnified Party, not to be unreasonably withheld by either. All expenses
(including without limitation attorneys' fees) incurred by the Indemnifying
Party in connection with the foregoing shall be paid by the Indemnifying Party.
Notwithstanding the foregoing, in connection with any settlement negotiated by
an Indemnifying Party, no Indemnified Party shall be required by an Indemnifying
Party to (w) enter into any settlement that does not include as an unconditional
term thereof the delivery by the claimant or plaintiff to the Indemnified Party
of a release from all liability in respect of such claim or litigation, (x)
enter into any settlement that attributes by its terms liability to the
Indemnified Party, (y) consent to the entry of any judgment that does not
include as a term thereof a full dismissal of the litigation or proceeding with
prejudice or (z) enter into any settlement which would, or could reasonably be
expected to, result in or relate to either a material nonmonetary obligation or
restriction of any kind whatsoever being imposed upon the Indemnified Party or
Damages other than Damages which are indemnifiable under this Article XII;
PROVIDED, HOWEVER, that the Indemnifying Party may enter into the settlements
described in (w) and (y) above if (1) such settlement is not in any way
materially damaging or harmful to the Partnership's business or the Indemnified
Parties, as the case may be, and (2) the Indemnifying Party agrees to remain
liable to the Indemnified Party for indemnification with respect to such claim
indefinitely thereafter. No failure by an Indemnifying Party to acknowledge in
writing its indemnification obligations under this Article XII shall relieve it
of such obligations to the extent they exist. If an Indemnified Party is
entitled to indemnification against a Third Party Claim, and the Indemnifying
Party fails to accept the defense of a Third Party Claim tendered pursuant to
this Section 12.4, or if, in accordance with the foregoing, the Indemnifying
Party shall lose its right to contest, defend, litigate and settle such a Third
Party Claim; provided that the Indemnifying Party shall be entitled to
participate, at its expense, with counsel of its choice, and any settlement
shall be approved by the Indemnifying Party, such approval not to be
unreasonably withheld, the Indemnified Party shall have the right, without
prejudice to its right of indemnification hereunder, in its discretion exercised
in good faith and upon the advice of counsel, to contest, defend and litigate
such Third Party Claim, and subject to the preceding sentence may settle such
Third Party Claim, either before or after the initiation of litigation. If,
pursuant to this Section 12.4, the Indemnified Party so defends or (except as
hereinafter provided) settles a Third Party Claim, for which it is entitled to
indemnification hereunder, as hereinabove provided, the Indemnified Party shall
be reimbursed by the Indemnifying Party for the reasonable attorneys' fees and
other expenses of defending the Third Party Claim which is incurred from time to
time, forthwith following the presentation to the Indemnifying Party of itemized
bills for said attorneys' fees and other expenses.
12.5 OTHER INDEMNIFICATION CLAIMS. The Indemnified Party shall give the
Indemnifying Party prompt notice of any Indemnification Claim (other than a
Third Party Claim) specifying the basis hereunder upon which the Indemnified
Party's claim for indemnification is asserted. No failure to give notice of a
claim shall affect the indemnification obligations of the Indemnifying Party
hereunder, except to the extent that the Indemnifying Party can demonstrate that
such failure materially prejudiced such Indemnifying Party's ability to
successfully defend or otherwise respond to the matter giving rise to the claim.
In respect of any Indemnification Claim other than a Third Party Claim, the
Partnership shall provide the Indemnifying Party with the opportunity and all
appropriate access to the applicable facilities, personnel, books and records to
conduct (under the Indemnifying Party's control) necessary to respond to such
Indemnification Claim.
ARTICLE XIII
GENERAL PROVISIONS
13.1 MEDIATION. Each Partner agrees that, in the event of any dispute among
such Partners regarding the interpretation or application of this Agreement
(including any dispute regarding the operation of the Partnership that cannot be
resolved by the procedures created by the provisions of this Agreement), it will
follow the following procedures:
(a) it will give each other Partner written notice of the matter in
dispute;
(b) it will negotiate reasonably and in good faith with the other
Partners in order to resolve such dispute for a period of not less than fifteen
(15) business days following receipt of the notice in (a);
(c) if the dispute has not been resolved by negotiation pursuant to
(b), it will cooperate with the other Partners to submit the dispute to an
independent mediator (to be selected by the unanimous consent of the Partners,
which shall only be withheld on the basis of good faith concerns about the
independence or adequacy of expertise of the proposed mediator) who shall have
ten (10) business days after the matter is fully submitted to him or her to
propose a settlement of the dispute;
(d) if any Partner refuses, in its sole and unreviewable discretion
to accept the proposed resolution of the mediator, it shall give prompt written
notice of such refusal to the other Partners and, at any time following receipt
of any such notice, any Partner shall be free to pursue any legal, equitable or
other remedies available to it regarding the matter in dispute.
Notwithstanding the foregoing, no Partner shall be required to pursue the
notice, negotiation or mediation steps set forth above if it determines,
reasonably and in good faith, the delay involved in such procedure would cause
irreparable, material harm to it or its interest in the Partnership.
13.2 NOTICES. Unless otherwise specifically provided in this Agreement, all
notices and other communications required or permitted to be given hereunder
shall be in writing, directed or addressed to the respective addresses set forth
in Schedule 13.2 attached hereto, and shall be either (i) delivered by hand,
(ii) delivered by a nationally recognized commercial overnight delivery service,
(iii) mailed postage prepaid by registered or certified mail, or (iv)
transmitted by facsimile, with receipt confirmed. Such notices shall be
effective: (a) in the case of hand deliveries when received; (b) in the case of
an overnight delivery service, when received in accordance with the records of
such delivery service; (c) in the case of registered or certified mail, upon the
date received by the addressee as determined by the U.S. Postal Service; and (d)
in the case of facsimile notices, when electronic indication of receipt is
received. Any party may change its address and telecopy number by written notice
to the other parties given in accordance with this Section 13.2.
13.3 CONFIDENTIALITY. Each of the Partners agrees that, except as required
by law, legal process, government regulators, or as reasonably necessary for
performance of its obligations or enforcement of its rights under this
Agreement, without the prior written consent of the other Partners, it will
treat and hold as confidential (and not disclose or provide access to any person
other than such Partner's attorneys or accountants) and it will cause its
Affiliates, officers, managers, partners, employees and agents to treat and hold
as confidential (and not divulge or provide access to any person) all
information relating to (i) the business of the Partnership and (ii) any
patents, inventions, designs, know-how, trade secrets or other intellectual
property relating to the Partnership, in each case excluding (A) information in
the public domain when received by such Partner or thereafter in the public
domain through sources other than such Partner, (B) information lawfully
received by such Partner from a third party not subject to a confidentiality
obligation and (C) information developed independently by such Partner. The
obligations of the Partners hereunder shall not apply to the extent that the
disclosure of information otherwise determined to be confidential is required by
applicable law, provided, however, that prior to disclosing such confidential
information to any party other than a governmental agency exercising its
ordinary regulatory oversight of a Partner, a Partner shall notify the
Partnership thereof, which notice shall include the basis upon which such
Partner believes the information is required to be disclosed. This Section 13.3
shall survive for a period of four years with respect to any Partner that
withdraws from the Partnership and, with respect to any dissolution or
termination of the Partnership pursuant to Article X hereof, for a period of
time agreed by the all of Partners.
13.4 ENTIRE AGREEMENT, ETC. This Agreement, together with the Contribution
Agreement, constitutes the entire agreement among all of the parties hereto
relating to the subject matter hereof and supersedes all prior contracts,
agreements and understandings among all of them. No course of prior dealings
among all of the parties shall be relevant to supplement or explain any term
used in the Agreement. Acceptance or acquiescence in a course of performance
rendered under this Agreement shall not be relevant to determine the meaning of
this Agreement even though the accepting or the acquiescing party has knowledge
of the nature of the performance and an opportunity for objection. All waivers,
amendments and modifications of this Agreement must be in writing, executed by a
duly authorized officer of the party against whom enforcement of any waiver,
modification or consent is sought. No waiver of any terms or conditions of this
Agreement in one instance shall operate as a waiver of any other term or
condition or as a waiver in any other instance.
13.5 CONSTRUCTION PRINCIPLES. As used in this Agreement words in any gender
shall be deemed to include all other genders. The singular shall be deemed to
include the plural and vice versa. The captions and article and section headings
in this Agreement are inserted for convenience of reference only and are not
intended to have significance for the interpretation of or construction of the
provisions of this Agreement.
13.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts by the parties hereto, each of which when so executed will be an
original, but all of which together will constitute one and the same instrument.
13.7 SEVERABILITY. If any provision of this Agreement is held to be invalid
or unenforceable for any reason, such provision shall be ineffective to the
extent of such invalidity or unenforceability; provided, however, that the
remaining provisions will continue in full force without being impaired or
invalidated in any way unless such invalid or unenforceable provision or clause
shall be so significant as to materially affect the parties' expectations
regarding this Agreement. Otherwise, the parties hereto agree to replace any
invalid or unenforceable provision with a valid provision which most closely
approximates the intent and economic effect of the invalid or unenforceable
provision.
13.8 EXPENSES. The Initial Partners each agree to bear their own costs for
all matters involved in the negotiation, execution and performance of this
Agreement and related transactions unless otherwise specified herein.
13.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware as applied to transactions
taking place wholly within Delaware between Delaware residents.
13.10 BINDING EFFECT. Subject to the provisions of this Agreement relating
to transferability, this Agreement shall be binding upon, and inure to the
benefit of, the Partners and their respective permitted distributees, heirs,
successors and assigns.
13.11 ADDITIONAL DOCUMENTS AND ACTS. Each Partner agrees to execute and
deliver such additional documents and instruments and to perform such additional
acts as may be necessary or appropriate to effectuate, carry out and perform all
of the terms, provisions, and conditions of this Agreement and of the
transactions contemplated hereby.
13.12 NO THIRD PARTY BENEFICIARY. This Agreement is made solely for the
benefit of the parties hereto and their permitted distributees, heirs,
successors and assigns and no other person shall have any rights, interest, or
claims hereunder or otherwise be entitled to any benefits under or on account of
this Agreement as a third party beneficiary or otherwise.
13.13 FORMATION OF SUBSIDIARY LIMITED PARTNERSHIP. As of March 31, 1999,
the Partnership contributed all of the Partnership's assets and liabilities
relating to the business and assets of the newspapers listed on Exhibit 1 to
this Agreement to a new California limited partnership established among the
Partnership, Donrey and West Coast MediaNews, pursuant to a limited partnership
agreement (the "Limited Partnership, and the "Limited Partnership Agreement").
In exchange for (i) its contribution of such assets and liabilities to the
Limited Partnership and (ii) its undertaking to guarantee the
discharge/performance of all of the liabilities and obligations of the Limited
Partnership, the Partnership received a Limited Partner interest in such Limited
Partnership equal to 99.99% of all the partnership interests in the Limited
Partnership. In exchange for cash equal to .005% of the net value of the assets
and liabilities transferred to the Limited Partnership, each of Donrey and West
Coast MediaNews received a general partnership interest in the Limited
Partnership, equal to .05% of the total partnership interests in the Limited
Partnership. Under the Limited Partnership Agreement the Partners contemplate
that the rights of the Limited Partner shall not include any right which would
in Gannett's judgment cause the Federal Communications Commission (the "FCC") to
conclude that the Limited Partner is not sufficiently insulated from being able
to exert influence over the media business of the Limited Partnership to
preclude ownership of such business being attributed to the Limited Partner;
provided, however that the Partners agree to reform the Limited Partnership in
the event that FCC rules would permit the Partners to own the newspapers in such
a structure but would not permit ownership (without disposition of a business)
in the General Partnership structure.
IN WITNESS WHEREOF, each Partner has duly executed this Agreement as of the
date hereof.
West Coast MediaNews LLC
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
and Chief Financial Officer
Donrey Newspapers, LLC
By: ▇▇▇▇▇▇▇▇ Group, Inc., Manager
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, JR.
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Jr.
Vice President
The Sun Company of
San Bernardino, California
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Authorized Representative
California Newspapers, Inc.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Authorized Representative
Media West--SBC, Inc.
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
Media West--CNI, Inc.
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
