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NEWSPRINT PURCHASE CONTRACT

Purchase and Sale Agreement

NEWSPRINT PURCHASE CONTRACT | Document Parties: MEDIA GENERAL INC | Media General Operations, Inc | Southeast Paper Manufacturing Company You are currently viewing:
This Purchase and Sale Agreement involves

MEDIA GENERAL INC | Media General Operations, Inc | Southeast Paper Manufacturing Company

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Title: NEWSPRINT PURCHASE CONTRACT
Governing Law: Georgia     Date: 2/27/2008
Industry: Printing and Publishing     Sector: Services

NEWSPRINT PURCHASE CONTRACT, Parties: media general inc , media general operations  inc , southeast paper manufacturing company
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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:

 

1. TERM

 

  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.

 

  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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2. PURCHASE OBLIGATIONS

 

  2.1 Amount .

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).

 

  2.2 Shortages .

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.

 

  2.3 Affiliates .

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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3. PRICE

 

  3.1 Price Per Ton .

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.

 

  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:

 

  (a) the transaction price, as determined in accordance with generally accepted accounting principles;

 

  (b) the tonnage for the month; and

 

  (c) the basis weight.

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.

 

  3.3 Change in Control .

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).

 

4. SHIPMENT

 

  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.

 

  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:

 

  (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.

 

  (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.

 

  (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.

 

  (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.

 

  (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.

 

5. TITLE

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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6. SPECIFICATIONS

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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