AMENDED AND RESTATED OPERATING AGREEMENT OF MORRIS PUBLISHING GROUP, LLC (a Georgia limited liability company)
AMENDED AND RESTATED OPERATING AGREEMENT OF
▇▇▇▇▇▇ PUBLISHING GROUP, LLC
(a Georgia limited liability company)
THIS
AMENDED AND RESTATED OPERATING AGREEMENT (the “Agreement”) is made and
entered into as of the 1st day
of March, 2010, by and between MPG
NEWSPAPER HOLDING, LLC (the
“Member”), a Georgia limited liability company, and ▇▇▇▇▇▇
PUBLISHING GROUP,
LLC (the “Company”), a
Georgia limited liability company, the Member and the Company
collectively (the “Parties”).
W I T N E S S E T H:
WHEREAS,
the Company is a Georgia limited liability company organized under the Georgia
Limited Liability Company Act (the “Act”);
WHEREAS,
the Member desires to have no liability to third parties to the fullest extent
provided under the Act;
WHEREAS, the
Member desires to set forth guidelines regarding the operations of the Company
and certain other matters;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
ARTICLE I
Formation of Company
1.1 Formation;
Sole Member. The
Company has been formed effective upon the filing of the Articles in the office
of the Secretary of State for the State of Georgia in accordance with and
pursuant to the Act. The Parties confirm their intent and agreement
that the Company shall be governed by the terms of this
Agreement. The sole member of the Company is MPG Newspaper Holding,
LLC, which owns one hundred percent (100%) of the membership interests in the
Company.
1.2 Name. The
name of the Company is “▇▇▇▇▇▇ Publishing Group, LLC”. The Company’s
business may also be conducted under other name or names selected by the Member
as a trade name or names.
1.3 Organizational
Documents. This Agreement, along with the Certificate of Organization of
the Company, a copy of which is attached hereto as Schedule
“A”, constitute the principal organizational documents of the
Company.
1.4 Principal
and Other Offices. The principal office for the transaction of
business of the Company is to be located at such place as may be fixed from time
to time by the Directors. Branch offices and places of business may
be established at any time by the Directors at any place or places where the
Company is qualified to do business, whether within or outside the State of
Georgia.
1.5 Registered
Office and Agent. The
Directors shall designate a registered agent and registered office for service
of legal process; these designations are to be filed with the Georgia Secretary
of State as required by the Act. These designations may be changed at any
time.
1.6 Term. The
term of the Company shall be perpetual, unless terminated in accordance with
either the provisions of this Agreement or the Act. The Company shall
not terminate solely as a consequence of the dissociation, bankruptcy,
insolvency, appointment of a receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of a member of the Company or a
substantial part of such member’s property, or assignment for the benefit of its
creditors, or an admission in writing of the inability to pay its debts
generally as they become due, or any similar action, of one or more of the
members, so long as there remains a member of the Company.
ARTICLE II
Business of Company
The Company may
engage in any business or activity permitted by law.
ARTICLE III
Management
3.1 Management
of Company. The
business and affairs of the Company shall be managed by managers, to be known as
the “Board of Directors”.
3.1.1 Management
Delegated to Board of Directors. The Member hereby delegates
all management of the Company to the Board of Directors which shall consist of
such number as may be set from time to time by the Member. All
decisions concerning the business affairs of the Company shall be made by the
Board of Directors.
3.1.2 Election
of Directors. Members
of the Board of Directors shall be appointed by the Member and shall serve at
the pleasure of the Member. Directors may be removed at any time by
the Member, with or without cause.
3.1.3 Meetings. The
Board by resolution may provide for an annual meeting or other regularly
scheduled meetings, which may be held without notice as and when scheduled in
such resolution. Special meetings of the Board may be called at any
time by the Member, the Chairman of the Board, the President, or by any two (2)
or more directors. The Board of Directors, or any committee
designated by the Board of Directors, may participate in a meeting of such Board
or committee by means of conference telephone or similar communications
equipment in which all persons participating in the meeting can hear each other,
and participation in such a meeting pursuant to this Section 3.1.3 shall
constitute presence in person at such meeting.
3.1.4. Notice
and waiver; quorum. Notice of any special meeting of the Board of
Directors shall be given to each director (including observer members of the
Board of Directors) personally or by mail, addressed to such director at such
director’s last known address, at least two (2) days prior to the
meeting. Such notice may be waived, either before or after the
meeting. The attendance of a director at any special meeting shall
itself constitute a waiver of notice of such meeting and of any and all
objections to the place or time of the meeting, or to the manner in which it has
been called or convened, except where a director states, at the beginning of the
meeting, any such objection or objections to the transaction of
business. A majority of the Board of Directors (excluding observer
members of the Board of Directors) shall constitute a quorum at any directors’
meeting.
3.1.5 No
meeting necessary. Any
action required by law or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting if written consent, setting forth the
action so taken, shall be signed by all the directors (and a copy provided to
observer members of the Board of Directors). Such consent shall have
the same force and effect as a unanimous vote of the Board of Directors and
shall be filed with the Secretary and recorded in the Minute Book of the
Company.
3.1.6 Voting. At
all meetings of the Board of Directors, each director shall have one vote and,
except as otherwise provided herein or provided by law, all questions shall be
determined by a majority vote of the directors present.
3.1.7 Committees.
In the discretion of the Board of Directors, such Board from time to time
may elect or appoint, from its own members, an Executive Committee or such other
committee or committees as such Board may see fit to establish. Each
such committee shall consist of two or more directors, and each shall have and
may exercise such authority and perform such functions as the Board by
resolution may prescribe within the limitations imposed by
law.
3.1.8 Board
Observers.
3.1.8.1 Credit
Agreement Observer. At any time during which there is an outstanding
balance on the Tranche A Term Loan (as such capitalized term is defined in that
certain Amended and Restated Credit Agreement dated October 15, 2009 (the
“Credit Agreement”), among ▇▇▇▇▇▇ Communications Company, LLC, ▇▇▇▇▇▇ Publishing
Group, LLC, the Lenders party thereto, and Tranche Manager, LLC, as
Administrative Agent), Tranche Holdings, LLC, or its designee, shall be entitled
to designate one (1) nonvoting observer (the “CA Observer”) to the Company’s
Board of Directors and to all committees thereof. Such CA Observer
shall be entitled to attend all Board meetings (which meetings shall generally
be held telephonically) but will not be entitled to vote at any Board
meeting. Such CA Observer shall be entitled to receive all consents,
proposed consents or Board actions, documents, materials, information and
notices (whether or not in writing) provided to the Board; provided, however,
that the Company reserves the right to exclude such CA Observer from access to
any material or meeting or portion thereof (only if the CA Observer is
notified of such withholding) if the Board votes in good faith after advice of
counsel, that such exclusion is necessary (taking into account any
confidentiality agreements that such CA Observer has executed or is willing to
execute): (a) to preserve the attorney-client privilege; (b) to
prevent a breach by the Board of Directors of its fiduciary duties; or (c) to
avoid the impairment of the Company’s ability to enforce its rights under this
Agreement in any bona fide dispute with the CA Observer. Such CA Observer
may be removed from office only by Tranche Holdings, LLC, except that the CA
Observer may be removed for cause by the Board of Directors in the event of
willful misconduct or material breach of any confidentiality agreement with the
Company or its affiliates; provided such CA Observer shall not be removed for
cause until after Tranche Holdings, LLC has been notified of the Board’s intent
to remove such person for cause and is given Tranche Holdings, LLC a reasonable
amount of time to appoint another person as a CA Observer. Upon the
payment and satisfaction in full of Tranche A Term Loan, Tranche Holdings, LLC
shall cease to possess the right to designate a CA Observer, and any CA Observer
so designated will automatically and without further action be removed from the
Board. At any time during which there is an outstanding balance on
the Tranche A Term Loan (as defined in the Credit Agreement), all travel and
other reasonable expenses incurred by Tranche Holdings, LLC or its designee in
connection with its rights in this Section 3.1.8 shall be reimbursed by the
Company.
3.1.8.2 Note
Observer. At any time during which there is an outstanding balance on the
Notes, the Holders of a majority in aggregate principal amount of the
outstanding Notes shall have the right to designate one representative (the
“Note Observer”) to attend all meetings of the Board of Directors of the Company
and each committee thereof (collectively in this Section 3.1.8.1, the “Relevant
Meetings”) as a non-voting observer by notifying the Company in writing or by
directing the Trustee in writing to notify the Company in writing of such
designation; provided
that such Note Observer shall have the same duties of confidentiality and
non-disclosure as the other members of the Board of Directors. The
Note Observer shall be entitled to (i) prior written notice of all Relevant
Meetings in the same manner and with the same amount of advance notice, which
shall be at least five (5) Business Days’ advance notice where practicable, that
is provided to all other members of the Board of Directors of the Company and
any committees thereof in connection with such Relevant Meetings, (ii) receive
all materials provided to members (contemporaneously with other members’ receipt
of such materials) of the Board of Directors of the Company and any committees
thereof in connection with such Relevant Meetings, (iii) attend (whether in
person, by telephone, or otherwise) all Relevant Meetings as a non-voting
observer, and (iv) receive reimbursement for reasonable fees and expenses
incurred in connection with attending such Relevant Meetings; provided,
however,
that the Company reserves the right to exclude such Note Observer from access to
any material or meeting or portion thereof (only if the Note Observer
is notified of such withholding) if the Board votes in good faith after advice
of counsel, that such exclusion is necessary (taking into account any
confidentiality agreements that such Note Observer has executed or is willing to
execute): (a) to preserve the attorney-client privilege; or (b) to
avoid the impairment of the Company’s ability to enforce its rights under this
Agreement in any bona fide dispute with the Note Observer. The
Company will provide reasonable advance notice if it intends to exclude the Note
Observer from attending any portion of any meeting or from receiving any
particular materials, describing the basis for such exclusion, and shall
cooperate with the Note Observer in good faith to limit to the maximum extent
reasonably possible the degree to which the Note Observer will be excluded from
such portions of such meetings or receiving such materials. Such Note
Observer shall be removable only by (A) the Required Noteholders (i) by
providing written notice to the Company or (ii) by directing the Trustee in
writing to notify the Company in writing, or (B) the Company for Cause;
provided, that a Note Observer will automatically and without necessity of
further action be removed upon the payment in full of the
Notes. For
purposes of this Section 3.1.8.2, “Cause” shall mean that the Note
Observer: (x) has been convicted of an act constituting a misdemeanor involving
moral turpitude or a felony under the laws of the United States or any state or
political subdivision thereof, (y) has committed an act constituting gross
negligence or willful misconduct that is detrimental to the business,
reputation, character or standing of the Company, or (z) has committed an act of
fraud, self-dealing, conflict of interest, material dishonesty or
misrepresentation that is detrimental to the business, reputation, character or
standing of the Company. All
capitalized terms used in this Section 3.1.8.2 and not defined herein shall have
the meanings for such terms set forth in that certain Indenture dated as of
March 1, 2010 (the “Indenture”), among ▇▇▇▇▇▇ Publishing Group, LLC and ▇▇▇▇▇▇
Publishing Finance Co., as issuers, the guarantors party thereto, and Wilmington
Trust FSB, as trustee.
3.1.9 Officers,
salaries, and bonds. The
Board of Directors shall elect all officers of the Company and fix their
compensation, unless pursuant to a resolution of the Board the authority to fix
compensation is delegated to the President. The fact that any officer
is a director shall not preclude such individual from receiving a salary or from
voting upon the resolution providing the same. The Board of Directors
may or may not, in their discretion, require bonds from either or all of the
officers and employees of the Company for the faithful performance of their
duties and good conduct while in office.
3.1.10 Compensation
of directors. Directors,
as such, shall be entitled to receive such fees and expenses, if any, for
attendance at each regular or special meeting of the Board and any adjournments
thereof as may be fixed from time to time by resolution of the Board, and such
fees and expenses shall be payable even though an adjournment shall have
occurred because of the absence of a quorum; provided, however, that nothing
herein contained shall be construed to preclude any director from serving the
Company in any other capacity and receiving compensation
therefor. Members of either standing or special committees may be
allowed such compensation as may be provided from time to time by resolution of
the Board for attending committee meetings.
3.2 Officers.
3.2.1 Selection. The
Board of Directors at each annual meeting (or from time to time if no annual
meeting is held) shall elect or appoint a President, a Secretary, and a
Treasurer, each to serve for the ensuing year and until such officer’s successor
is elected and qualified, or until such officer’s earlier resignation, removal
from office, or death. The Board of Directors, at such meeting, may
or may not, in the discretion of the Board, elect a Chairman of the Board and/or
one or more Vice Presidents, and also may elect or appoint one or more Assistant
Vice Presidents and/or one or more Assistant Secretaries and/or one or more
Assistant Treasurers. When more than one Vice President is elected,
they may, in the discretion of the Board, be designated Executive Vice
President, Senior Vice President, etc., according to seniority or rank, and any
person may hold two or more offices.
3.2.2 Removal,
vacancies. Any
officers of the Company may be removed from office at any time by the Board of
Directors, with or without cause. Any vacancy occurring in any office
of the Company may be filled by the Board of Directors.
3.2.3 Chairman
of the Board. The
Chairman of the Board of Directors, when and if elected, shall, whenever
present, preside at all meetings of the Board of Directors and at all meetings
of the members. The Chairman of the Board of Directors shall have all
the powers of the President in the event of the President’s absence or inability
to act, or in the event of a vacancy in the office of the
President. The Chairman of the Board of Directors shall confer with
the President on matters of general policy affecting the business of the Company
and shall have, in such Chairman’s discretion, power and authority to generally
supervise all the affairs of the Company and the acts and conduct of all the
officers of the Company, and shall have such other duties as may be conferred
upon the Chairman of the Board by the Board of Directors.
3.2.4 President. If
there be no Chairman of the Board elected, or in the Chairman’s absence, the
President shall preside at all meetings of the Board of Directors and at all
meetings of the members. The immediate supervision of the affairs of
the Company shall be vested in the President. It shall be the
President’s duty to attend constantly to the business of the Company and to
maintain strict supervision over all of its affairs and
interests. The President shall keep the Board of Directors fully
advised of the affairs and condition of the Company, and shall manage and
operate the business of the Company pursuant to such policies as may be
prescribed from time to time by the Board of Directors. The President
shall, subject to approval of the Board, hire and fix the compensation of all
employees and agents of the Company other than officers, and any person thus
hired shall be removable at the President’s pleasure.
3.2.5 Vice
President. Any
Vice President of the Company may be designated by the Board of Directors to act
for and in the place of the President in the event of sickness, disability, or
absence of the President or the failure of the President to act for any reason,
and when so designated, such Vice President shall exercise all the powers of the
President in accordance with such designation. The Vice Presidents
shall have such duties as may be required of or assigned to them by the Board of
Directors, the Chairman of the Board, or the President.
3.2.6 Secretary. It
shall be the duty of the Secretary to keep a record of the proceedings of all
meetings of the Members and Board of Directors; to keep the membership records
of the Company; to notify the members and directors of meetings as provided by
this Agreement; and to perform such other duties as may be prescribed by the
Chairman of the Board, the President, or the Board of Directors. Any
Assistant Secretary, if elected, shall perform the duties of the Secretary
during the absence or disability of the Secretary and shall perform such other
duties as may be prescribed by the Chairman of the Board, the President, the
Secretary, or the Board of Directors.
3.2.7 Treasurer. The
Treasurer shall keep, or cause to be kept, the financial books and records of
the Company, and shall faithfully account for its funds. The
Treasurer shall make such reports as may be necessary to keep the Chairman of
the Board, the President, and the Board of Directors fully informed at all times
as to the financial condition of the Company, and shall perform such other
duties as may be prescribed by the Chairman of the Board, the President, or the
Board of Directors. Any Assistant Treasurer, if elected, shall
perform the duties of the Treasurer during the absence or disability of the
Treasurer, and shall perform such other duties as may be prescribed by the
Chairman of the Board, the President, the Treasurer, or the Board of
Directors.
3.3 Directors’
and Officers’ Duty to Company. The
Directors and the Officers shall have the same duties as are customary for
Directors and Officers of a Georgia business corporation.
3.4. Duty
of Care. A Member’s, Director’s or Officer’s duty of care in the
discharge of the person’s or entity’s duties to the Company is limited to
refraining from engaging in gross negligence or intentional
misconduct. In discharging its duties, the person or entity shall be
fully protected in relying in good faith upon the Company’s books and records
and upon such information, opinions, reports, or statements by any of its
agents, or by any other person, as to matters the person or entity reasonably
believes are within such other person’s professional or expert competence and
who have been selected with reasonable care by or on behalf of the Company,
including information, opinions, reports, or statements as to the value and
amount of the assets, liabilities, profits, or losses of the Company or any
other facts pertinent to the existence and amount of assets from which
distributions to the Member might properly be paid.
3.5 Indemnity
of the Member and of Others. Each person or entity who at any time
is or shall have been the Member, or is or shall have been serving at the
request of the Company as a Manager, Director, Officer, employee or agent of
another person or entity, shall be indemnified and held harmless by this Company
from and against any and all losses, liabilities or claims attributable to such
status or to acts or failure to act in connection therewith, provided that the
scope of this indemnification and agreement to hold harmless shall not extend to
losses arising from the gross negligence or intentional misconduct of the
indemnitee. The foregoing right of indemnification shall not be
deemed exclusive of any other rights to which a person or entity seeking
indemnification may be entitled under any other agreement, vote of Members or
otherwise. If authorized by the Board of Directors, the Company may
purchase and maintain insurance on behalf of any person (including the Member)
to the full extent permitted by the Act.
3.6 Affiliated
Compensation. The Directors may retain such persons or entities as
it shall determine (including any person or entity in which the Member or any
Director may have an interest or of which it is an affiliate) to provide
services to or on behalf of the Company for such compensation as the Directors
deem to be appropriate.
ARTICLE IV
Contracts, Etc.
4.1 Contracts,
deeds, and loans. All
contracts, deeds, mortgages, pledges, promissory notes, transfers, and other
written instruments binding upon the Company shall be executed on behalf of the
Company by the Chairman of the Board, if elected, the President, any Vice
President, or by such other officers or agents as the Board of Directors may
designate from time to time. Any such instrument required to be given
under the seal of the Company may be attested by the Secretary or Assistant
Secretary of the Company.
4.2 Proxies. The
Chairman of the Board, if elected, or the President or any Vice President shall
have full power and authority, on behalf of the Company, to attend and to act
and to vote at any meetings of the shareholders, bond holders, or other security
holders of any corporation, trust, or association in which this Company may hold
securities, and at any such meeting shall possess and may exercise any and all
of the rights and powers incident to the ownership of such securities and which
as owner thereof the Company might have possessed and exercised if present,
including the power and authority to delegate such power and authority to a
proxy selected by such officer. The Board of Directors may, by resolution, from
time to time, confer like powers upon any other such person or
persons.
4.3 Checks
and Drafts. Checks
and drafts of the Company shall be signed by such officer or officers or such
other employees or persons as the Board of Directors may from time to time
designate.
ARTICLE V
Rights and Obligations of Member
5.1 Limitation
of Liability. The Member shall have no personal or vicarious
liability for the liabilities and obligations of the
Company.
5.2 Liability
of the Member to the Company. A Member who receives the return in
whole or in part of its contribution is liable to the Company only to the
extent, if any, provided by the Act.
5.3 Member’s
Duty to Company. The Member shall be entitled to enter into transactions
that may be considered to be competitive with, or a business opportunity that
may be beneficial to, the Company, it being expressly understood that the Member
may be entering into transactions that are similar to the transactions into
which the Company may enter. The Company shall not have any right, by
virtue of this Agreement, to share or participate in such transactions of the
Member or to the income or proceeds derived therefrom. The Member
shall not incur any liability to the Company as a result of engaging in any
other business venture.
The
Member does not violate a duty or obligation to the Company merely because the
Member’s conduct furthers the Member’s own interest. The Member may
lend money to and transact other business with the Company. The
rights and obligations of the Member lending money to or transacting business
with the Company are the same as those of a person who is not a Member, subject
to applicable law. No transaction with the Company shall be voidable
solely because the Member has a direct or indirect interest in the transaction
if the transaction is fair to the Company.
ARTICLE VI
Contributions to Company and Capital
Accounts
6.1 Member’s Capital
in the Company.
6.1.1 The Member shall contribute to the Company as
its “Capital Contribution” the amount determined by the Member in its sole
discretion to be necessary or convenient for carrying on the business and
activities of the Company. No interest shall accrue on any Capital
Contribution, and the Member shall not have the right to withdraw or be repaid
any Capital Contribution except as provided in the
Agreement. Notwithstanding the foregoing, the Member shall not be
required to make any Capital Contribution.
6.1.2 Anything in this Agreement to the contrary
notwithstanding, no Member
shall have any personal or vicarious liability for liabilities or obligations of
the Company, and no Member shall be required to make any further or additional
contributions to the capital of the Company or to lend or advance funds to the
Company for any purpose.
6.1.3 The obligation, if any, of a Member to
contribute to the capital of the Company is solely and exclusively for the
benefit of the Company and the Member, and is not intended to confer rights on
any third party. Without limiting the generality of the foregoing, no
creditor of the Company shall be deemed a third party beneficiary of any
obligation of any Member to contribute capital or make advances to the
Company.
6.1.4 Anything in this Agreement to the contrary
notwithstanding, the Company shall not be authorized to issue membership
interests or any other class of equity security without voting rights or with
limited voting rights.
6.2 Distributions. Distributions
shall be made at such time or times and in such amounts as the Board of
Directors shall determine. All distributions of cash or other
property shall be made to the Members in accordance with their percentage
interests. No Member has the right to demand or receive a
distribution in any form other than cash. No distribution shall be
made if prohibited by the solvency tests of O.C.G.A.
§▇▇-▇▇-▇▇▇.
ARTICLE VII
Transferability
The
Member’s interest in the Company shall be transferable in whole or in part
without consent of any other person or entity, and the assignee shall be
admitted as a Member with all the rights of the Member who assigned its
interest. No transfer (whether voluntary or involuntary) shall effect a
dissolution of the Company. The Member shall be permitted to retire,
resign or withdraw from the Company at any time. No event of bankruptcy or
insolvency shall cause the Member to cease to be a Member.
ARTICLE VIII
Additional Members
8.1 Additional
Members. Any
person or entity acceptable to the Member may become a Member in the Company
subject to the conditions imposed by the Member. At or about the time
a new Member is admitted, this Agreement shall be amended as necessary or proper
to reflect a change from a single-member limited liability company to a
multiple-member limited liability company.
8.2 Multiple
Members. After a new Member is admitted and the Company
changes to a multiple-member limited liability company:
8.2.1
Meetings of Members may be called by Members holding a majority of the interests
in the Company;
8.2.2 At least two (2) days’ notice of all meetings of
Members shall be given by the Members authorized to call
meetings;
8.2.3 Members may participate in any meeting by, or
conduct the meeting through the use of, any means of communication by which all
Members participating may simultaneously hear each other during the
meeting. A Member participating in a meeting by this means is deemed
to be present in person at the meeting;
8.2.4 The presence of Members holding a majority of
the interests in the Company shall constitute a quorum for a meeting of Members;
and
8.2.5 Except as otherwise provided herein or in the
Act, the act of Members holding a majority of the interests in the Company at a
meeting at which a quorum is present shall be required to take action on any
matter where a vote of Members is required.
8.2.6 Any action required by law or permitted to
be taken at any meeting of the Members may be taken without a meeting if written
consent, setting forth the action so taken, shall be signed by Members holding a
majority of interests in the Company. Such consent shall have the
same force and effect as a vote of Members holding a majority of interests in
the Company and shall be filed with the Secretary and recorded in the Minute
Book of the Company.
ARTICLE IX
Dissolution and Termination
9.1 Dissolution. The
Company shall be dissolved and its affairs wound up either: (a)
upon the retirement or withdrawal of the only remaining Member of the
Company (other than in connection with an assignment of its interest in the
Company), or (b) at the election of the Member.
9.2 Winding
Up, Liquidation and Distribution of Assets. Upon dissolution,
the Member shall proceed to wind up the affairs of the Company, and liquidate
and distribute the assets of the Company as it sees fit, subject to the
Act. Upon completion of the winding up, liquidation and distribution
of the assets, the Company shall be deemed terminated.
Notwithstanding anything to the contrary in this Agreement,
upon a liquidation within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
U.S. Treasury Regulations, if the Member has a deficit capital account (after
giving effect to all contributions, distributions, allocations and other capital
account adjustments for all taxable years, including the year during which such
liquidation occurs), the Member shall have no obligation to make any Capital
Contribution, and the negative balance of the Member’s capital account shall not
be considered a debt owed by such Member to the Company or to any other person
for any purpose whatsoever.
ARTICLE X
Miscellaneous
10.1 Books
of Account and Records. Proper and complete records and books
of account shall be kept or shall be caused to be kept by the Board of Directors
or such representatives as it may appoint in which shall be entered fully and
accurately all transactions and other matters relating to the Company’s business
in such detail and completeness as is customary and usual for businesses of the
type engaged in by the Company. The books and records shall at all
times be maintained at the principal executive office of the
Company.
10.2 Choice
of Law. This Agreement, and the application of interpretation
hereof, shall be governed exclusively by its terms and by the laws of the State
of Georgia, and specifically the Act.
10.3 Amendments.
This Agreement may not be amended except by the written agreement of both the
Company and the Member. Notwithstanding the foregoing, Section
3.1.8.1 shall not be amended without written approval of Tranche Holdings, LLC
or its designee, and Section 3.1.8.2 shall not be amended without written
approval of the Holders (as defined in Section 3.1.8.2) or their
designee.
10.4 Severability. If
any provision of this Agreement or the application thereof to any person or
circumstance shall be invalid, illegal or unenforceable to any extent, the
remainder of this Agreement and the application thereof shall not be affected
and shall be enforceable to the fullest extent permitted by
law.
10.5 Heirs,
Successors and Assigns. Each and all of the covenants, terms,
provisions and agreements herein contained shall be binding upon and inure to
the benefit of the parties hereto and, to the extent permitted by this
Agreement, their respective heirs, legal representatives, successors and
assigns.
10.6 No
Third Party Beneficiary. None of the provisions of this
Agreement shall be for the benefit of, or enforceable by any person or entity
other than the parties hereto, except for Tranche Holdings, LLC which shall be a
third party beneficiary of this Agreement with respect to its rights in Sections
3.1.8 and 10.3, and the Holders (as defined in the Indenture) which shall be
third party beneficiaries of this Agreement with respect to their rights in
Sections 3.1.8.2 and 10.3.
10.7 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same
instrument.
SIGNATURES ON FOLLOWING PAGE(S)
IN
WITNESS WHEREOF, this Agreement has been executed as of the date the
Company was formed freely and voluntarily made by the Member after full and
complete consideration of all relevant facts at hand.
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COMPANY:
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▇▇▇▇▇▇ PUBLISHING GROUP, LLC
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
As
its: President
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MEMBER:
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MPG NEWSPAPER HOLDING, LLC
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
As
its: President
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Exhibit “A”
Certificate of Organization