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Exhibit 10.30
NEWSPRINT PURCHASE
CONTRACT
This Newsprint Purchase
Contract (this “ Agreement ”) is made as of
September 5, 2007 (the “ Execution Date ”)
and is effective as of September 1, 2007 (the “
Effective Date ”), by and between SP Newsprint Co., a
Georgia general partnership (f/k/a Southeast Paper Manufacturing
Company) (“ SP ”), and Media General Operations,
Inc., a Delaware corporation (“ Media General ”)
(“ Purchaser ”). SP and Purchaser are referred
to herein as the “ Parties ” and each,
individually, as a “ Party ”.
WHEREAS, SP entered into
separate agreements, each dated April 20, 1977, with Media
General, Knight-Ridder, Inc. (“ Knight-Ridder
”), a Florida corporation (by way of reference, Knight-Rider
was acquired by McClatchy in 2006) and Cox Enterprises, Inc., a
Delaware corporation (“ Cox ”) (collectively,
the “ 1977 Agreements ”), for the purchase of
newsprint from SP’s mill located near Dublin, Georgia
(“ Dublin Mill ”); and
WHEREAS, SP, Media General,
Knight-Ridder and Cox terminated the 1977 Agreements and entered
into that certain Amended Newsprint Purchase Contract, dated as of
November 1, 1987, by and among SP, Media General,
Knight-Ridder and Cox (the “ 1987 Agreement ”),
for the purchase of newsprint from the Dublin Mill;
WHEREAS, the 1987 Agreement
expires as of October 31, 2007;
WHEREAS, SP desires to enter
into a new agreement, effective as of the Effective Date, with
Purchaser for the purchase of newsprint from SP’s
then-current facilities, including any SP facilities acquired or
otherwise utilized by SP after the Effective Date (“ SP
Facilities ”); and
WHEREAS, simultaneously with
the execution of this Agreement, SP is entering into a similar
agreement with each of Media General (“ Media General
Agreement ”), McClatchy (“ McClatchy
Agreement ”) and Cox Newsprint Supply (“ Cox
Agreement ”) (with this Agreement, the Media General
Agreement, McClatchy Agreement and the Cox Agreement, collectively
and together with this Agreement, referred to herein as “
Purchase Contracts ” and the parties thereto and
hereto, other than SP, collectively referred to herein as “
Purchasers ”).
NOW, THEREFORE, in
consideration of the mutual covenants and conditions contained
herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
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1.1 |
SP agrees to sell and Purchaser agrees to purchase white
standard commercial newsprint paper (in accordance with the
specifications set forth in Section 6 below) (“
Newsprint ”) upon the terms and conditions contained
herein. Subject to Section 1.2, this Agreement shall be for an
initial term of five (5) years from the Effective Date unless
sooner terminated as provided herein and will automatically renew
for successive five (5) year terms unless terminated by either
Party upon prior written notice to the other Party at least one
year prior to the expiration of the then-current term. |
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1.2 |
Notwithstanding Section 1.1, if there is a Change in
Control of SP (i) the initial term of this Agreement shall be
six (6) years from date of the Change in Control unless sooner
terminated as provided herein; and (ii) such six (6) year
term will automatically renew for successive one (1) year
terms unless terminated by either Party upon prior written notice
to the other Party at least two (2) years prior to the
expiration of the then-current term. For clarification, following a
Change in Control of SP, this Agreement will terminate six
(6) years from the date of the Change in Control if written
notice of such termination is received prior to the fourth
anniversary of the date of the Change in Control. The following
example is provided for further clarification: |
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Following a Change in Control
of SP that is effective as of January 1, 2008, the initial
term of this Agreement would end six (6) years after
January 1, 2008 (or December 31, 2013), except that this
Agreement will automatically renew for an additional one
(1) year term unless written notice of termination is received
prior to January 1, 2012. Further, this Agreement will be
extended for additional renewal terms of one (1) year each
unless written notice of termination is receive prior to
January 1 of each subsequent year. As a result, in order for a
Party to terminate this Agreement effective December 31, 2014,
written notice of such termination must be received prior to
January 1, 2013.
“ Change in
Control ” shall mean the: (a) consolidation or
merger of an entity with or into any entity in which the interest
holders or shareholders of the first entity immediately prior to
such transaction are not holders of a majority of the voting power
of the surviving entity immediately thereafter; (b) sale,
transfer, or other disposition of all or substantially all of the
assets of an entity to a person or entity; or (c) acquisition
by any person or entity, or group of persons or entities acting in
concert, of Control of the outstanding voting securities or other
ownership interests of an entity. “ Control ” or
“ Controlled ” shall mean, with respect to any
entity, the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
such entity, whether through the ownership of voting securities (or
other ownership interest), by contract or otherwise.
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Purchaser agrees to purchase
Newsprint from SP in the annual amount of 35,000 tons of Newsprint
per calendar year (“ Annual Tonnage Commitment
”). Such annual amount (i) will be pro rated for any
partial year under this Agreement and (ii) will be purchased
by Purchaser at an approximate rate of 1/12 of the annual tonnage
per month.
Purchaser may elect, upon
written notice to SP within ten (10) days following the
execution of this Agreement and/or within thirty (30) days
following a Change of Control of SP, to adjust (but not below the
Annual Tonnage Commitment as defined in the paragraph above)
Purchaser’s Annual Tonnage Commitment for the remainder of
2007 (on a pro rated basis) and Purchaser’s Annual Tonnage
Commitment for 2008 (which adjusted Annual Tonnage Commitment will
be effective only for the remainder of 2007 or 2008, as the case
may be) to an amount not to exceed the amount of Newsprint
purchased by Purchaser from SP during the previous twelve
(12) month period under this Agreement and the 1987 Agreement
at the prices set forth in this Agreement. With respect to the
Annual Tonnage Commitment for each year thereafter, on or prior to
the end of the third quarter of each calendar year:
(i) Purchaser may elect on an annual basis, upon written
notice to SP, to increase Purchaser’s Annual Tonnage
Commitment for the following calendar year (which increased Annual
Tonnage Commitment will be effective only for such calendar year)
to an amount not to exceed the amount of Newsprint purchased by
Purchaser from SP during the previous twelve (12) month period
at the prices set forth in this Agreement; and (ii) tonnage
allotment for each SP Facility will be determined by the Parties
for the following calendar year. Except as set forth in this
Section 2.1, purchases of Newsprint in excess of
Purchaser’s Annual Tonnage Commitment and/or changes in
allotments for each SP Facility will be subject to the mutual
agreement of Purchaser and SP.
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For purposes of this
Section 2.1, a ton means a short (2,000 lb.) ton with the
tonnage obligations being actual tons as weighed on a scale (and
not recalculated on an equivalent ton basis if average basis weight
changes).
If the amount of Newsprint
available for distribution by SP in any given month is, or is
reasonably estimated by SP to be, less than the amount to be
supplied by SP to (a) Purchasers, (b) customers with a
firm written commitment from SP with an initial term of at least
five years, and (c) customers of SP where SP has been the sole
supplier of Newsprint for a period of at least six months preceding
the applicable month of such shortage (collectively with
Purchasers, the “ Take-or-Pay Customers ”), the
Parties will cooperate in good faith to adjust the amount of
tonnage to be distributed to Purchaser for such month, including
adjusting any scheduled monthly deliveries and/or providing for
increased shipments in a subsequent month. SP also agrees to work
with other Take-or-Pay Customers to make adjustments in their
tonnage distributions (including any scheduled monthly deliveries
and/or providing for increased shipments in a subsequent month) and
to use commercially reasonable efforts to include language
substantially similar to the preceding sentence of this Agreement
in all future Agreements with Take-or-Pay Customers. If the Parties
do not mutually agree to adjust such scheduled monthly deliveries
and/or provide for increased shipments in a subsequent month,
(i) such shortage shall first be allocated among all of the
customers of SP, other than Take-or-Pay Customers, and to the
extent a shortage still exists, any remaining shortage shall be
allocated among the Take-or-Pay Customers in proportion to the
amount of Newsprint
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actually purchased from SP by
the Take-or-Pay Customers in the in the prior three months, and
(ii) the Annual Tonnage Commitment for the remainder of the
term of this Agreement (or such lesser period as Purchaser may
elect) will be reduced by the amount of the applicable
shortage.
“ Affiliate
” shall mean, as applied to a specified entity, (i) any
other entity that directly or indirectly, through one or more
intermediaries, Controls, is Controlled by or is under common
Control with, the specified entity, (ii) any other entity that
directly or indirectly, through one or more intermediaries, owns
20% or more of any class of equity securities (including any equity
securities issuable upon the exercise of any option or convertible
security) of the specified entity, or (iii) any other entity
20% or more of any class of equity securities (including any equity
securities issuable upon the exercise of any option or convertible
security) of which is owned or Controlled by the specified entity.
Upon the written request of Purchaser to SP at any time, Purchaser
may elect either or both of the following options:
(i) purchases of Newsprint by or for the benefit of
Purchaser’s Affiliates from SP shall count toward the
fulfillment of Purchaser’s Annual Tonnage Commitment under
Section 2.1 of this Agreement; or (ii) such Affiliates
shall be entitled to purchase the Newsprint at Purchaser’s
price.
Notwithstanding the foregoing
paragraph, if an entity becomes an Affiliate of Purchaser and such
entity had in force a Newsprint purchase contract with SP at the
time it became an Affiliate, the quantity of Newsprint purchased by
such entity may, upon Purchaser’s request, count toward
Purchaser’s fulfillment of its Annual Tonnage Commitment
under Section 2.1 hereof upon the earlier of (x) the
expiration or termination of such Affiliate’s then-current
agreement to purchase Newsprint from SP,
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and (y) twelve
(12) months after Purchaser’s written notice to SP that
Purchaser has acquired such Affiliate and is electing to count the
quantity of Newsprint purchased by such entity toward
Purchaser’s fulfillment of its Annual Tonnage Commitment,
(except, in all cases, at the written request of Purchaser and upon
becoming an Affiliate of Purchaser, such Affiliates shall be
entitled to Purchaser’s purchase price for
Newsprint).
Except to the extent that
Purchaser partially assigns this Agreement pursuant to
Section 13, if Purchaser divests an Affiliate, and/or sells a
publication or publications, then the purchases of Newsprint by
such divested entity or buyer of divested assets shall count
towards fulfillment of Purchaser’s Annual Tonnage Commitment
set forth in Section 2.1 of this Agreement if the Purchaser
acts as purchasing agent for such divested entity or buyer of
divested assets or otherwise negotiates or facilitates purchases of
Newsprint on behalf of such divested entity or buyer of divested
assets as agent, consultant or otherwise. For example, if such
divested entity or buyer of divested assets does not enter into an
agreement with SP containing terms and conditions substantially
similar to the terms and conditions set forth in this Agreement
such that Purchaser is not entitled to partially assign this
Agreement pursuant to Section 13 hereof, but such divested
entity or buyer of divested assets continues to buy Newsprint from
SP at Purchaser’s request, then such purchases of Newsprint
shall count towards fulfillment of Purchaser’s Annual Tonnage
Commitment set forth in Section 2.1 of this
Agreement.
Notwithstanding any other
provision in this Agreement, each Party will be responsible for its
Affiliates’ (other than divested Affiliates) compliance with
the terms and conditions of this Agreement.
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The price per ton (2,000
pounds) of Newsprint to be paid by Purchaser under this Agreement
shall be the lowest quartile weighted average price of all Purchase
Contracts to purchase Newsprint executed by Media General,
McClatchy and Cox Newsprint Supply, calculated in accordance with
the methodology set forth in Section 3.2 below (including
freight costs or charges). Such price per ton will be determined at
the time of shipment for deliveries to the destination to which
Purchaser directs, less any discounts as may be determined by SP.
If one or more Purchase Contracts are terminated or if additional
Purchase Contracts are added pursuant to Section 13 of this
Agreement, the price per ton of Newsprint will equal the lowest
quartile weighted average price of the Purchase Contracts then in
effect. The price per ton by basis weight of Newsprint shall be the
same for each Purchaser.
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3.2 |
Pricing Methodology . |
Purchaser will provide a
blind listing of all of its current purchase orders from newsprint
suppliers with whom Purchaser has no equity interest to the Chief
Executive Officer or the Chief Financial Officer of SP, which
listing will include the following information for each purchase
order:
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(a) |
the transaction price, as determined in accordance with
generally accepted accounting principles; |
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(b) |
the tonnage for the month; and |
SP will provide an estimate
of the purchase price for the applicable quarter based upon such
information and based upon market forecasts. Pricing for the
then-current quarter will be adjusted prior to the fifteenth
(15 th ) day of the third (3 rd ) month of each calendar quarter to reflect the actual
price for such quarter. The actual quarterly price
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will be the monthly weighted
average price for such quarter, as determined by calculating the
average of the three monthly prices in such quarter (i.e., the sum
of the three monthly weighted average prices divided by three). An
example of the pricing methodology is set forth on Attachment
A to this Agreement.
If there is a Change in
Control of SP, then Purchaser, McClatchy and Cox Newsprint Supply,
will select an independent third-party accounting firm reasonably
acceptable to SP (or its successor, if applicable) to receive the
information described in Section 3.2 from Purchasers with
respect to pricing under this Agreement and the other Purchase
Contracts. Such third-party accounting firm will be selected by a
majority of Purchaser, McClatchy and Cox Newsprint Supply (with
Purchaser, McClatchy and Cox Newsprint Supply, having one vote).
Any fees attributable to such third-party accounting firm will be
borne equally by Purchasers. The third-party accounting firm will
forward the price calculations to the Chief Executive Officer and
Chief Financial Officer of SP (or its successor, if applicable) in
accordance with section 3.2 herein. Any pricing submitted to such
third-party accounting firm by Purchasers as well as calculations
derived by such third-party accounting firm will be subject to
audit by SP (or its successor, if applicable). If such audit is
requested, SP (or its successor, if applicable), will utilize a
separate third-party accounting firm acceptable to Purchaser,
McClatchy and Cox Newsprint Supply. Cost of such audit will be
borne by SP (or its successor, if applicable).
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4.1 |
The Newsprint shall be shipped in rolls with freight allowed to
such destinations as Purchaser shall specify. Freight costs shall
not include warehousing, storage, local cartage, delivery or
similar charges not customarily allowed in SP Newsprint agreements,
with such costs to be borne by Purchaser. |
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4.2 |
Route and carrier shall be determined by SP, and delivery will
be made by truck or rail f.o.b. SP’s Facility with freight
prepaid to destination. |
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4.3 |
As an incentive for Purchaser to select shipping destinations
beneficial to SP, a freight allowance (“ Freight
Allowance ”) will be offered by SP for each Purchaser
shipping destination that has all-in freight rates for tons
purchased by Purchaser under this Agreement that are lower than
SP’s average all-in freight rate, excluding the Purchase
Contracts. Such Freight Allowance will be determined as
follows: |
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(a) |
SP will calculate its average all-in freight rate for all of
its customers for each SP Facility, excluding the Purchase
Contracts for the then-current calendar quarter, to establish a
freight rate baseline. |
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(b) |
SP will calculate Purchaser’s average all-in freight rate
under this Agreement for each SP Facility and each Purchaser
shipping destination for the then-current calendar
quarter. |
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(c) |
Purchaser
will be entitled to a Freight Allowance for the subsequent calendar
quarter for each Purchaser shipping destination with an all-in
freight rate calculated in Section 4.3(b) that is lower than
SP’s freight rate baseline calculated in Section 4.3(a).
For clarification, the Freight Allowance will be calculated
separately for each SP Facility and each Purchaser shipping
destination, with such Freight Allowance being calculated as the
difference per ton between the freight rate baseline and
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the Purchaser’s
all-in freight rate. No Freight Allowance will be paid for any
Purchaser shipping destination with all-in freight rates that
exceed the applicable freight rate baseline for then-current
quarter. Freight Allowances will be calculated and revised on a
quarterly basis, with any applicable changes being applied to all
shipments beginning on the first calendar day of each quarter and
ending on the last calendar day of each quarter.
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(d) |
The Freight Allowance, if applicable, will be applied to all
tons shipped to the shipping destination of Purchaser from each SP
Facility during such calendar quarter. |
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(e) |
Payment of the Freight Allowance will be made in a manner that
is mutually agreed to by the Parties. For example, Freight
Allowances may be aggregated for all Purchaser shipping
destinations to which Newsprint is provided under this Agreement
and issued by SP monthly or quarterly as a single credit, or issued
as a credit to individual invoices. |
An example of the Freight
Allowance methodology is set forth on Attachment B to this
Agreement.
Title to the Newsprint shall
pass to Purchaser in the event of shipment by independent carrier
upon delivery to such independent carrier, or its agent, consigned
to Purchaser, or in the event of shipment by other than independent
carrier, upon delivery to Purchaser or its agent.
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The basis weight of the
Newsprint shall be customary ranges defined from time-to-time as
newsprint (e.g., 43 grams per meter squared (gsm) to 52.1 gsm).
Purchaser shall provide SP, prior to the 15 th day of each month, with complete
specification expressed in tons with respect to core size, roll
widths and diameter for the shipments to be made during the
following month. If SP fails to receive such specification from
Purchaser, SP may deliver Newsprint in accordance with the
specifications last received. Rolls shall be wound on
non-returnable paper cores unless Purchaser requests returnable
metal tip cores.
Quality specifications are
set forth in Attachment C to this Agreement. Attachment
C may be amended from time-to-time upon the prior written
approval of both Parties, which approval will not be unreasonably
withheld or delayed, to reflect changes in applicable industry
standards during the term of this Agreement.
If Newsprint delivered to
Purchaser by SP does not comply with the quality specifications set
forth on Attachment C , Purchaser will notify SP in writing
(or by telephone or email if promptly confirmed in writing by
Purchaser) promptly upon Purchaser’s knowledge of such
non-compliance, including providing SP with reasonably specific
detail of the items and reasons for such non-compliance. Upon
SP’s receipt of such notice of non-compliance, (i) SP
will use commercially reasonable efforts to remedy such
non-compliance (and, upon SP’s reasonable request, Purchaser
will use commercially reasonable efforts to assist SP in its
attempt to remedy such non-compliance provided that Purchaser shall
not be required to assist with or accept any remedy that is
inconsistent with Purchaser’s past practices) , and/or
(ii) SP may, at its sole expense and within thirty
(30) days of SP’s receipt of such notice, supply
Purchaser
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with Newsprint from an
alternate SP Facility that complies with the quality specifications
set forth on Attachment C . If SP remedies such
non-compliance as to quality and quantity of Newsprint within such
thirty (30) day period, there will be no adjustment to
Purchaser’s Annual Tonnage Commitment.
If SP is unable to provide
Newsprint in the required quantities that complies with the quality
specifications set forth on Attachment C within such thirty
(30) day period, Purchaser may elect, upon ninety
(90) days prior written notice to SP, to reduce its Annual
Tonnage Commitment:
(i) for the remainder of the
term of this Agreement (or such lesser period as Purchaser may
elect) by an amount, calculated on an ongoing basis, equal to the
Tonnage Reduction Amount; provided, however, if SP cures such
non-conformance as to quality and quantity within such ninety
(90) day period, Purchaser will promptly resume its Annual
Tonnage Commitment for the then-current year (except to the extent
of any applicable Surplus Amount during such then-current year) and
in full for the remainder of the term of the Agreement thereafter;
and
(ii) for the then-current
year by an amount equal to the Surplus Amount, if any.
For clarification, Purchaser
will not be responsible for purchasing, and the Annual Tonnage
Commitment for the then-current year will be reduced by, the
Surplus Amount (if any).
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The “ Tonnage
Reduction Amount ” means the amount of Newsprint that SP
is obligated to provide under this Agreement minus the amount of
Newsprint that SP delivers in accordance with the quality
specifications set forth on Attachment C .
The “ Surplus
Amount ” means (a) the amount of Newsprint that SP
delivers in accordance with the quality specifications set forth on
Attachment C during the applicable period, plus (b) the
amount of newsprint that Purchaser acquired from other sources for
the applicable period (and not for future periods) that SP did not
supply Newsprint in accordance with the quality specifications set
forth on Attachment C , minus (c) the amount of
Newsprint that SP is obligated to provide under this Agreement
during the applicable period.
In addition, if
(a) Newsprint delivered to Purchaser by SP does not comply
with the quality specifications set forth on Attachment C
and SP does not cure such failure as to quality and quantity within
the ninety (90) day period set forth above two (2) or
more times during any twelve (12) month period, and
(b) such non-conforming Newsprint equals at least ten thousand
(10,000) tons, then, Purchaser may elect, within sixty
(60) days of the occurrence of the second (or more) such
failure to conform, to terminate this Agreement upon sixty
(60) days prior written notice to SP. For example, if there
are five occurrences of such noncompliance that are not cured
within the ninety (90) period set forth above and Purchaser
has not elected to terminate, Purchaser may still elect to
terminate within sixty (60) days of the most recent uncured
noncompliance if the last two occurrences (i.e., the fourth and
fifth occurrences) were within the preceding twelve (12) month
period.
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