Joint Operating Agreement
Among
The Denver Post Corporation,
Eastern Colorado Production Facilities, Inc.,
Denver Post Production Facilities LLC
And
The Denver Publishing Company
Dated as of
May 11, 2000
TABLE OF CONTENTS
ARTICLE 1
The LLC
1.1 Denver Post Production Facilities LLC.................................5
1.2 Amendment and Restatement of Operating Agreement; Change of Name;
Additional Capital Contribution by Denver Post........................6
1.3 Sale of a Portion of Denver Post's Membership Interest in LLC to
Denver Publishing; Initial Capital Contribution by Denver Publishing..7
1.4 Form of Additional Capital Contribution of Denver Post................8
1.5 Form of Initial Capital Contribution of Denver Publishing.............9
1.6 Valuation of Certain Capital Contributions; Adjustment................9
1.7 Other Capital Contributions..........................................12
1.8 Failure to Make Payments.............................................12
1.9 Contracts, Leases, Permits and Commitments; Assumption...............13
1.10 Advertising Contracts................................................14
1.11 Subscription Contracts...............................................15
1.12 Accounts Receivable..................................................15
1.13 Limitation on Assumption of Liabilities..............................15
1.14 Delivery of Books and Records........................................17
1.15 Use of Facilities and Properties.....................................17
1.16 Employees............................................................17
1.17 Newsprint Purchases..................................................20
1.18 Initial Activities of the LLC........................................20
ARTICLE 2
Activities of the LLC
2.1 Publication of Newspapers............................................21
2.2 Property Used........................................................23
2.3 Editorial Independence...............................................23
2.4 News and Editorial Services and Expenses.............................24
2.5 Office Space.........................................................27
ARTICLE 3
Quality of Content and Budgets
3.1 Quality of Content...................................................28
3.2 Budgets..............................................................28
ARTICLE 4
Duties of LLC, Including Distribution of Available Cash
4.1 Duties of LLC........................................................29
4.2 Allocation of Profits or Losses and Distributions of Cash............30
4.3 Books and Records....................................................30
4.4 Financial Statements.................................................31
4.5 Auditors and Fiscal Year.............................................32
4.6 Tax Returns..........................................................33
ARTICLE 5
Governance of LLC
5.1 Management Committee.................................................33
5.2 The President and Chief Executive Officer............................34
5.3 Certain Other Matters................................................35
5.4 Compensation.........................................................35
ARTICLE 6
Other Matters
6.1 Representations and Warranties.......................................35
6.2 Certain Action.......................................................37
6.3 NPA Filing...........................................................37
6.4 Announcements........................................................38
6.5 Interim Covenants....................................................38
ARTICLE 7
Duration; Termination
7.1 Term.................................................................41
7.2 Termination of this Agreement; Dissolution of the LLC................41
7.3 Termination at End of Term...........................................43
7.4 Transfers of Interests Under the Agreement and The Denver Newspaper
Agency Limited Liability Company Operating Agreement.................44
ARTICLE 8
Costs and Liabilities
8.1 Responsibility for Costs.............................................45
8.2 Nature of Relationship...............................................46
8.3 Members' Individual Responsibilities.................................46
8.4 LLC's Responsibility.................................................47
8.5 Force Majeure........................................................47
ARTICLE 9
Miscellaneous
9.1 Notices..............................................................48
9.2 Non-Assignability....................................................49
9.3 Entire Understanding.................................................49
9.4 Headings.............................................................49
9.5 Governing Law........................................................49
9.6 Modifications........................................................49
9.7 Severability.........................................................49
9.8 Specific Performance.................................................50
9.9 No Third Party Beneficiaries.........................................50
EXHIBITS
Exhibit A Denver Newspaper Agency Contribution and Sale Agreement
Exhibit B Denver Newspaper Agency Limited Liability Company Operating Agreement
Exhibit C Denver Newspaper Agency License for Denver Post Names and Denver Post
Intangibles
Exhibit D Denver Newspaper Agency License for News Names and News Intangibles
JOINT OPERATING AGREEMENT
This Joint Operating Agreement (hereinafter the "Agreement" or "The Denver
Newspaper Agency Joint Operating Agreement"), dated as of May 11, 2000, is
entered into by and among The Denver Post Corporation, a Delaware corporation
("Denver Post"), The Denver Publishing Company, a Colorado corporation ("Denver
Publishing") and Denver Post Production Facilities LLC, a Delaware limited
liability company.
Denver Post currently publishes THE DENVER POST each weekday and weekend
morning, in Denver, Colorado. Denver Publishing currently publishes DENVER ROCKY
MOUNTAIN NEWS each weekday and weekend morning, in Denver, Colorado. Both THE
DENVER POST and DENVER ROCKY MOUNTAIN NEWS (each, hereinafter, a "Newspaper",
and both hereinafter, the "Newspapers") have substantial paid circulations in
the Denver, Colorado metropolitan area and throughout the State of Colorado;
Although THE DENVER POST generates operating profits, DENVER ROCKY
MOUNTAIN NEWS suffers substantial operating losses and is currently in probable
danger of financial failure;
The parties to this Agreement believe that the probable failure of DENVER
ROCKY MOUNTAIN NEWS can be avoided and that both Newspapers can be published
profitably in the future provided that (1) they enter into a joint newspaper
operating arrangement (a "JOA") pursuant to which their operating and business
functions (but not their news and editorial functions) are appropriately
combined, (2) both THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS continue
separately to be published each weekday morning, (3) a special edition of DENVER
ROCKY MOUNTAIN NEWS is published each Saturday morning containing editorial
pages from both DENVER ROCKY MOUNTAIN NEWS and THE DENVER POST, under a new,
joint masthead and (4) a special edition of THE SUNDAY DENVER POST is published
each Sunday morning containing editorial pages from both THE DENVER POST and
DENVER ROCKY MOUNTAIN NEWS, under a new joint masthead;
Accordingly, the parties have agreed to enter into a joint newspaper
operating arrangement, which they believe meets the requirements of and is
entitled to the protection afforded by the Newspaper Preservation Act, 15 U.S.C.
ss. 1801 ET SEQ. ("NPA"). The parties have determined that such an arrangement
will serve not only their best interests, but also those of their employees,
their subscribers, their advertisers and the communities which they serve.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties agree as follows:
ARTICLE 1
THE LLC
1.1 DENVER POST PRODUCTION FACILITIES LLC. Prior to the execution of this
Agreement, Denver Post and its wholly owned subsidiary, Eastern Colorado
Production Facilities, Inc., a Delaware corporation ("Eastern Colorado" and
together with Denver Post the "Post Entities")) caused to be formed under the
laws of the State of Delaware a limited liability company named "Denver Post
Production Facilities LLC" (the "LLC"). In exchange for its and Eastern
Colorado's membership interests therein, Denver Post itself and on behalf of
Eastern Colorado transferred to the LLC the following assets (hereinafter,
collectively, "Denver Post Initial Capital Contribution"):
(a) all real property and all appurtenances thereto and equipment
thereon located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (hereinafter, collectively
the "Denver Post Production Facility"); and,
(b) all furniture, fixtures, improvements, equipment, machinery,
parts, computer hardware, tools, printing presses and other tangible property
located at the Denver Post Production Facility other than vehicles, leased
personal property and Inventory (as defined in the Contribution and Sale
Agreement appended as Exhibit A hereto).
1.2 AMENDMENT AND RESTATEMENT OF OPERATING AGREEMENT; CHANGE OF NAME;
ADDITIONAL CAPITAL CONTRIBUTION BY DENVER POST.
(a) As of the Effective Date, as hereinafter defined, the Post
Entities and the LLC shall jointly and severally cause the LLC to change its
name to "The Denver Newspaper Agency LLC," to amend and restate the LLC's
operating agreement in the form appended as Exhibit B hereto (hereinafter "The
Denver Newspaper Agency Limited Liability Company Operating Agreement"), and to
cause to be made to and received by the LLC an additional capital contribution
from Denver Post, hereinafter the "Denver Post Additional Capital
Contributions," in the form described in Section 1.4 of this Agreement.
(b) Concurrently with the foregoing, Post Entities shall also assign
to the LLC, and the LLC shall assume and become fully liable for, all of the
liabilities relating to the operation of THE DENVER POST and/or the Denver Post
Contributed Assets which are defined as "Denver Post Assumed Liabilities" in
Section 2.3 of The Denver Newspaper Agency Contribution and Sale Agreement
(hereinafter collectively also, the "Denver Post Assumed Liabilities"). Upon the
LLC's assumption of the Denver Post Assumed Liabilities, Denver Post shall have
no further obligation or liability with respect thereto, and the LLC shall pay
and discharge all such assumed liabilities in full and in a timely manner.
(c) As used in this Agreement, the "Effective Date" shall be the
first business day of the first month commencing following the later of (i) the
day on which the written consent of the Attorney General of the United States
becomes effective, as provided in Section 4(b) of the NPA, and in Section 48.14
of the Regulations under the NPA (28 CFR ss. 48.1), and as contemplated by
Section 6.3 of this Agreement, provided that no injunction or restraining order
shall then be in effect which restrains or prohibits the carrying out of this
Agreement or the consummation of any of the transactions contemplated hereby and
all of the material conditions for the dosing of such transactions shall then
have been satisfied, or (ii) if such injunction or restraining order is in
effect, the first day on which it is removed or eliminated without further right
of appeal, and all such conditions have been satisfied.
1.3 SALE OF A PORTION OF DENVER POST'S MEMBERSHIP INTEREST IN LLC TO
DENVER PUBLISHING; INITIAL CAPITAL CONTRIBUTION BY DENVER PUBLISHING.
(a) Immediately following the implementation of the various matters
described and set forth in Section 1.2, Denver Publishing shall (x) in exchange
for a Percentage Interest equal to Sixty Million Dollars ($60,000,000) divided
by the then fair market value of the net assets of the LLC, pay to Denver Post
the cash sum of Sixty Million Dollars ($60,000,000), hereinafter the "Purchase
Price" and (y) make an initial capital contribution to the LLC, hereinafter the
"Denver Publishing Initial Capital Contribution," in the form set forth in
Section 1.5 of this Agreement such that after such contribution, the Percentage
Interests in the LLC shall be 50% for Denver Publishing, 49% for Denver Post and
1% for Eastern Colorado.
(b) Concurrently with the foregoing, Denver Publishing shall assign
to the LLC, and the LLC shall, except as otherwise provided in this Agreement,
assume and become fully liable for, all of the liabilities relating to the
operations of DENVER ROCKY MOUNTAIN NEWS and/or the Denver Publishing
Contributed Assets which are defined as "Denver Publishing Assumed Liabilities"
in Section 3.3 of The Denver Newspaper Agency Contribution and Sale Agreement
(hereinafter collectively also, the "Denver Publishing Assumed Liabilities").
Upon the LLC's assumption of the Denver Publishing Assumed Liabilities, Denver
Publishing shall have no further obligation or liability with respect thereto,
and the LLC shall pay and discharge all such assumed liabilities in full and in
a timely manner.
1.4 FORM OF ADDITIONAL CAPITAL CONTRIBUTION OF DENVER POST.
(a) Denver Post's Additional Capital Contribution shall consist of
the cash sum of One Million Dollars ($1,000,000) and all of its rights, title,
and interest not previously contributed to the LLC in and to the specific
properties and assets currently used or held for use in connection with the
production and publication of THE DENVER POST which are defined as the
"Additional Denver Post Contributed Assets" in Section 2.1 of The Contribution
and Sale Agreement of even date herewith entered into by the parties hereto
(hereinafter, "The Denver Newspaper Agency Contribution and Sale Agreement" and
also hereinafter collectively the "Additional Denver Post Contributed Assets").
A copy of The Denver Newspaper Agency Contribution and Sale Agreement is
appended as Exhibit B to this Agreement.
(b) The assets defined in Section 2.2 of The Denver Newspaper Agency
Contribution and Sale Agreement as "Denver Post Excluded Assets" shall not
constitute any part of the Additional Denver Post Contributed Assets but shall
remain the separate property of Denver Post from and after the Effective Date.
Notwithstanding the foregoing, Denver Post shall grant to the LLC a royalty-free
license with respect to such of the Denver Post Excluded Assets as are defined
as the Denver Post Names and the Denver Post Intangibles in Section 2.2 of The
Denver Newspaper Agency Contribution and Sale Agreement. Such license shall be
in the form attached hereto as Exhibit C, which shall be executed by Denver Post
and delivered to the LLC on the Effective Date.
1.5 FORM OF INITIAL CAPITAL CONTRIBUTION OF DENVER PUBLISHING.
(a) Denver Publishing's Initial Capital Contribution shall consist
of the cash sum of One Million Dollars ($1,000,000) and all of its rights,
title, and interest in and to the specific properties and assets used or held
for use in connection with the production and publication of DENVER ROCKY
MOUNTAIN NEWS which are defined as "Denver Publishing Contributed Assets" in
Section 3.1 of The Denver Newspaper Agency Contribution and Sale Agreement
(hereinafter collectively also, the "Denver Publishing Contributed Assets").
(b) The assets defined in Section 3.2 of The Denver Newspaper Agency
Contribution and Sale Agreement as "Denver Publishing Excluded Assets" shall not
constitute any part of the Denver Publishing Contributed Assets but shall remain
the separate property of Denver Publishing from and after the Effective Date.
Notwithstanding the foregoing, Denver Publishing shall grant to the LLC a
royalty-free license with respect to such of the Denver Publishing Excluded
Assets as are defined as the News Names and the News Intangibles in Section 3.2
of The Denver Newspaper Agency Contribution and Sale Agreement. Such license
shall be in the form attached hereto as Exhibit D, which shall be executed by
Denver Publishing and delivered to the LLC on the Effective Date.
1.6 VALUATION OF CERTAIN CAPITAL CONTRIBUTIONS; ADJUSTMENT.
(a) Subject to the making of the True-Up Contribution (as
hereinafter defined), each of the parties to this Agreement agrees, for all
purposes with respect to this Agreement, The Denver Newspaper Agency Limited
Liability Company Operating Agreement and The Denver Newspaper Agency
Contribution and Sale Agreement, that the fair market value of (i) Denver Post's
and Eastern Colorado's aggregate Initial and Additional Capital Contributions
and aggregate capital account balances and (ii) the Purchase Price and Denver
Publishing's Initial Capital Contribution and capital account balance, shall be
deemed to be equal.
(b) To the extent that the aggregate value, determined (except as
hereinafter expressly provided) in accordance with generally accepted accounting
principles consistently applied, of the working capital contributed to the LLC
as of the Effective Date by each of Post Entities and Denver Publishing as a
consequence of Post Entities' Additional Capital Contribution and Denver
Publishing's Initial Capital Contribution differs, the party whose working
capital contribution is the lesser in value shall promptly following the final
determination of such value (as hereinafter provided) contribute to the LLC an
additional cash sum (the "True-Up Contribution") equal to the difference in
value of the parties' respective working capital contributions. Once made, such
True-Up Contribution shall be deemed to be part of the capital contribution of
the party making such True-Up Contribution and aggregate capital contributions
and aggregate capital accounts of the Post Entities shall be deemed equal to the
capital contribution and capital account of Denver Publishing.
(c) For purposes of determining the amount of any required True-Up
Contribution, the determination of the value of the working capital contributed
to the LLC as of the Effective Date by each of Denver Post and Denver Publishing
shall be determined by the party making such contribution upon written notice to
the other parties to this Agreement and the LLC not later than one hundred fifty
(150) days following the Effective Date.
(d) Except as expressly hereinafter provided, such determination
shall be similarly made with respect to both Denver Post and Denver Publishing,
on the basis of generally accepted accounting principles consistently applied.
Notwithstanding the foregoing, for the purpose of such calculations (a) all
newsprint inventories of Denver Post and Denver Publishing shall be valued at
book value (without any corporate or other ▇▇▇▇-up), (b) current liabilities
shall include the present value of all capital leases relating to the respective
operations of THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS (provided, that for
such purpose THE NEW YORK TIMES press lease relating to THE DENVER POST shall
not be considered a capital lease for this purpose as long as the revenues
derived by the LLC from the future operations of this press (excluding current
commercial printing jobs currently printed elsewhere by Denver Post) equal or
exceed payments by the LLC for such years pursuant to such lease), and (c) all
trade accounts receivable shall be valued based upon the actual collections of
the LLC with respect thereto during the 120 day period immediately following the
Closing (with no value being attributed to any receivables remaining unpaid 120
days following the Closing, provided that any sums thereafter collected with
respect to such receivables shall belong exclusively to the party assigning such
receivables to the LLC), and (d) the unfulfilled portion of the prepaid
subscription liabilities for each of THE DENVER POST and DENVER ROCKY MOUNTAIN
NEWS as of the Effective Date shall each be valued based upon a value of
Twenty-Five Cents ($0.25) for each copy of the weekday and Saturday editions of
each Newspaper and One Dollar ($1.00) for each copy of each Sunday edition of
each Newspaper due to be delivered subsequent to the Effective Date.
(e) If either party objects to the other party's determination of
the amount of working capital it contributed to the LLC, such objection shall be
communicated in writing to all of the other parties to this Agreement and the
LLC within forty-five (45) days of receipt of such determination. All such
objections shall be referred for final resolution to a firm or firms of
independent auditors chosen by mutual agreement of the independent auditors of
the parties. All of the parties to this Agreement and the LLC shall receive
written notification of the independent auditor's final determination of the
value of such party's working capital contribution (determined in the manner
provided in this Agreement) within thirty (30) days of such referral.
1.7 OTHER CAPITAL CONTRIBUTIONS. In the event that the LLC shall
subsequent to the Effective Date require funds other than the capital
contributions described in Sections 1.4 and 1.5 of this Agreement for any
authorized business purpose, all such funds, unless obtained from outside
sources (subject to Section 5.1, hereof), shall be contributed by Denver Post
and Denver Publishing on identical terms and in equal shares, when and as such
additional contributions may be authorized as provided in Sections 5.1 or 8.1(c)
hereof.
1.8 FAILURE TO MAKE PAYMENTS. If (i) either Denver Post or Denver
Publishing (a "Defaulting Party") fails to make to the LLC any payment required
hereunder, or under the terms of either The Denver Newspaper Agency Limited
Liability Company Operating Agreement or The Denver Newspaper Agency
Contribution and Sale Agreement, including, but not limited to, any properly
authorized capital contribution, the other party (the "Non-Defaulting Party")
may lend the amount thereof to the LLC on behalf of the Defaulting Party, or
(ii) the Defaulting Party breaches any of its other obligations to the LLC, the
other party may cure such breach. In any such event, (x) no distributions shall
thereafter be made to the Defaulting Party by the LLC pursuant to Section 4.1
(c) hereof or otherwise until the full amount of such loan that was made or
incurred by the Non-Defaulting Party, plus interest from the date of default to
the date(s) of such repayment(s) at a rate per annum equal to the rate announced
from time to time by The Bank of New York as its prime or reference rate has
been paid in full to the Non-Defaulting Party by the Defaulting Party and (y)
and all such distributions which are thus withheld by the LLC from the
Defaulting Party shall instead concurrently be paid by the LLC to the
Non-Defaulting Party in repayment of such party's loan.
1.9 CONTRACTS, LEASES, PERMITS AND COMMITMENTS; ASSUMPTION. On the
Effective Date, Denver Post and Denver Publishing each will make available to
the LLC, by way of assignment or otherwise, and will thereafter permit the LLC
to assume and perform, all contracts, leases, permits and commitments
(collectively, the "Contracts") relating to the operations of THE DENVER POST or
DENVER ROCKY MOUNTAIN NEWS and/or the Denver Post Contributed Assets or the
Denver Publishing Contributed Assets exclusive of: (a) those Contracts described
in Section 1.4(b) or Section 1.5(b) hereof, (b) those Contracts defined as
Denver Post Excluded Assets, Denver Post Excluded Liabilities, Denver Publishing
Excluded Assets or Denver Publishing Excluded Liabilities in The Denver
Newspaper Agency Contribution and Sale Agreement, (c) any other Contracts which
relate to the news and/or editorial functions of THE DENVER POST or DENVER ROCKY
MOUNTAIN NEWS (except as may otherwise be otherwise expressly provided herein or
in The Denver Newspaper Agency Contribution and Sale Agreement), and (d) those
advertising or subscription Contracts described in Sections 1.10 or 1.11 hereof
(hereafter collectively, the "Excluded Contracts"). To the extent that any one
or more of the Contracts to be assigned to the LLC may be assignable only with
the consent or consents of third persons, Denver Post and Denver Publishing
agree to use all reasonable efforts to procure such consent or consents, in
cooperation with the LLC, by the Effective Date or as soon thereafter as is
reasonably practicable. Except as may otherwise be provided in Section 1.13
hereof, the LLC shall be responsible for, and shall pay, any cancellation
charges or other liabilities of Denver Post or Denver Publishing under any
Excluded Contract. Notwithstanding the foregoing or any other provision of this
Agreement, the LLC shall not, by virtue of the foregoing, be required hereby, as
of or subsequent to the Effective Date, to assume or otherwise perform any
Contract (including, but not limited to any collective bargaining agreement
other than any such agreement that requires assignment and assumption in
connection with the transactions contemplated hereby) if the Management
Committee (by Absolute Majority Vote) determines such assumption is not in the
LLC's best interest; provided, that any Contract which the Management Committee
determines not to assume shall be deemed an Excluded Contract for the purpose of
the preceding sentence.
1.10 ADVERTISING CONTRACTS. In order to implement the Licenses granted
pursuant to Exhibits C and D hereto, Denver Post and Denver Publishing each will
deliver to the LLC (a) on the Effective Date (subject to any required approval
from the Attorney General), the advertising information required by their
respective Licenses, and (b) within 10 days after the Effective Date, a list of
the amount of space used, up to but not including the Effective Date, by each
such advertiser. The LLC will use such efforts as it deems reasonable and
appropriate to fulfill and complete such advertising contracts and commitments
requiring performance on or subsequent to the Effective Date, and shall have the
exclusive right to make such modifications or short ratings or cancellations
thereof as it deems reasonable and appropriate and shall, except as otherwise
provided in Section 1.13 hereof, indemnify Denver Post or Denver Publishing with
respect to all liabilities arising thereunder for all periods subsequent to the
Effective Date. By the Effective Date, each of Denver Post and Denver Publishing
shall independently develop standards for determining the acceptability of
advertising for subsequent publication in its Newspaper (with Denver Publishing
developing standards for the Saturday Edition and Denver Post developing
standards for the Sunday Edition), and the LLC shall subsequent to the Effective
Date apply those standards in determining the acceptability of advertising copy
for subsequent publication in such Newspaper.
1.11 SUBSCRIPTION CONTRACTS. In order to implement the Licenses granted
pursuant to Exhibits C and D hereto, on the Effective Date (subject to any
required approval from the Attorney General), Denver Post and Denver Publishing
each will deliver and make available to the LLC all subscription contracts then
relating to THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS, respectively. The
LLC will subsequent to the Effective Date use such efforts as it deems
reasonable and appropriate to fulfill and perform all such subscription
contracts for the regular weekday editions of THE DENVER POST and DENVER ROCKY
MOUNTAIN NEWS, and may, if necessary, use such efforts as it deems reasonable
and appropriate to fulfill and perform such contracts by delivering subsequent
to the Effective Date the Saturday Edition (as defined in Section 2.1 hereof),
to all subscribers who will accept the same in substitution for the
pre-Effective Date Saturday edition of THE DENVER POST and the Sunday Edition
(as defined in Section 2.1 hereof) to all subscribers who will accept the same
in substitution for the pre-Effective Date Sunday edition of DENVER ROCKY
MOUNTAIN NEWS.
1.12 ACCOUNTS RECEIVABLE. Between the date hereof and the Effective Date,
Denver Post and Denver Publishing shall use all reasonable efforts, consistent
with past practices, to collect their respective advertising, circulation and
other trade accounts receivable arising out of the publication of THE DENVER
POST, and DENVER ROCKY MOUNTAIN NEWS ("Accounts Receivable"). On and after the
Effective Date, the LLC shall have the sole right to collect all Accounts
Receivable, and to use such methods with respect to such collection, including
settlement, compromise or litigation, as the LLC shall determine.
1.13 LIMITATION ON ASSUMPTION OF LIABILITIES. On the Effective Date, the
LLC shall assume and be responsible for only those liabilities or obligations of
Denver Post and Denver Publishing that are specifically contemplated by this
Agreement and The Denver Newspaper Agency Contribution and Sale Agreement to be
assumed by the LLC and for no others. In addition to any liabilities which may
be defined as Denver Post Excluded Liabilities or Denver Publishing Excluded
Liabilities in The Denver Newspaper Agency Contribution and Sale Agreement, the
liabilities to be assumed by the LLC on the Effective Date shall not include any
of the following liabilities (all of which shall hereinafter collectively be
deemed "Excluded Liabilities"): All intercompany indebtedness, all indebtedness
for borrowed money (other than capital leases related to the operations of THE
DENVER POST or DENVER ROCKY MOUNTAIN NEWS), all deferred tax liabilities of
whatever nature, all accrued income or franchise tax liabilities, all
liabilities for failure to perform or discharge in a timely manner prior to the
Effective Date any liability to be assigned to the LLC as of the Effective Date
hereof, all liabilities arising from any breach occurring prior to the Effective
Date under any contract, license or other instrument to be assigned to the LLC
as of the Effective Date, all liabilities arising from any litigation pending or
threatened as of the Effective Date with respect to the operations of Denver
Post or Denver Publishing or any assets to be transferred to the LLC as of the
Effective Date and all liabilities arising out of any violations occurring prior
to the Effective Date of any law or governmental regulation applicable to the
operations of Denver Post or Denver Publishing or the assets being transferred
to the LLC as of the Effective Date.
Denver Post and Denver Publishing, respectively, shall indemnify and hold
the other party and the LLC harmless against any and all damage, loss and cost
(including reasonable attorneys' fees) arising out of or related to any Excluded
Liability or any other liability or obligation of the indemnifying party that is
not to be assumed by the LLC as of the Effective Date pursuant to this Agreement
or The Denver Newspaper Agency Contribution and Sale Agreement.
1.14 DELIVERY OF BOOKS AND RECORDS. As of the Effective Date, Denver Post
and Denver Publishing each will deliver to the LLC such of their books, records,
and files (not including general books of account) and circulation and
advertising accounts receivables ledgers and accounts payable ledgers relating
to THE DENVER POST or DENVER ROCKY MOUNTAIN NEWS, whether or not heretofore
expressly referred to herein, as may be reasonably required in connection with
the collection of accounts receivable and the payment of assumed liabilities and
the production, marketing, and circulation of the newspapers to be produced,
marketed, and circulated hereunder by the LLC.
1.15 USE OF FACILITIES AND PROPERTIES. Upon and subsequent to the
Effective Date the properties and assets theretofore or thereupon contributed to
the LLC by Denver Post and Denver Publishing shall be retained and used in
connection with the joint operating arrangement contemplated hereby, except as
the Management Committee shall by Absolute Majority Vote determine otherwise.
1.16 EMPLOYEES.
(a) Commencing as of the Effective Date, The President and Chief
Executive Officer of the LLC shall determine the staffing levels required for
the LLC's operations and shall retain employees to perform non-news and
non-editorial operations, including those employees and former employees of THE
DENVER POST and DENVER ROCKY MOUNTAIN NEWS, as the President and Chief Executive
Officer shall deem reasonably necessary, appropriate or desirable to perform the
LLC's operations. The President and Chief Executive Officer shall select those
persons which he or she in his or her reasonable judgment determines to be
qualified persons, including persons from the staffs of THE DENVER POST and
DENVER ROCKY MOUNTAIN NEWS, consistent with such legal and contractual
obligations which may apply to the LLC, and shall not be obligated by this
Agreement or any other agreement entered into by and between Denver Post and
Denver Publishing to choose an equal number of employees from, or any specific
number of employees from, THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS. Each
Newspaper shall continue, however, to be responsible for the selection, hiring,
and employment of the employees used in its own news and editorial operations.
(b) To the extent that the President and Chief Executive Officer
does offer employment to persons then employed by THE DENVER POST or DENVER
ROCKY MOUNTAIN NEWS, it is contemplated that such employment will be offered
upon terms substantially comparable to those applicable to their employment by
THE DENVER POST or DENVER ROCKY MOUNTAIN NEWS.
(c) Upon the hiring of any such employee of THE DENVER POST or
DENVER ROCKY MOUNTAIN NEWS, the LLC alone shall on and after the Effective Date
be solely responsible for all obligations and incurred costs (whether arising
under collective bargaining agreements, individual employment agreements,
employee benefit or welfare plans, severance policies or arrangements or
otherwise) relative to the future employment, termination or retirement of such
employees.
(d) The LLC shall also be solely responsible for indemnifying both
Denver Post and Denver Publishing in full with respect to any WARN Act,
severance or other liability which arises as a consequence of the LLC's failure
to offer employment as of the Effective Date to any person then employed by THE
DENVER POST or DENVER ROCKY MOUNTAIN NEWS (other than news or editorial staff
employees) upon terms substantially comparable to those applicable to their
employment by THE DENVER POST or DENVER ROCKY MOUNTAIN NEWS.
(e) Upon and subsequent to the Effective Date, Denver Post and
Denver Publishing shall remain independently responsible for all obligations and
incurred costs relating to all persons thereafter employed relative to the news
and editorial staffs of THE DENVER POST or DENVER ROCKY MOUNTAIN NEWS. To the
extent such costs are in the first instance paid by the LLC, the LLC shall be
reimbursed for such costs by Denver Post and Denver Publishing, respectively, in
connection with the monthly distribution to such parties of Net Available Cash
From Operations, as set forth in Article 4 of this Agreement.
(f) Subject to arrangements made by Denver Post and Denver
Publishing prior to the Effective Date and the authority of the Management
Committee, from and after the Effective Date, the President and Chief Executive
Officer shall, commencing as of the Effective Date, have sole and exclusive
authority to handle all labor relations matters with respect to all non-news and
non-editorial employees of the LLC. All labor relations matters with respect to
employees in the news and editorial departments of THE DENVER POST and DENVER
ROCKY MOUNTAIN NEWS shall be handled by (and shall be within the authority of)
Denver Post and Denver Publishing, as the case may be.
(g) (i) It is the intention of Denver Post and Denver Publishing
that those persons who have been employees of Denver Post, Denver Publishing or
their respective Affiliates and who become employees of the LLC in connection
with the transactions contemplated hereby shall receive employee benefits
substantially comparable to those they would have received if they had remained
with their prior employer. The parties will endeavor to design and implement
employee benefits plans and arrangements that shall accomplish this result,
subject to collective bargaining requirements. After consultation with the
Management Committee, the President and Chief Executive Officer will have the
authority to cause to be adopted benefit plans and arrangements that will in his
or her reasonable judgment accomplish this result.
(ii) Denver Post and Denver Publishing shall not (nor shall
they permit any of their respective Affiliates to) pay (or defer to the
account of) any officer or other employee of the LLC (including, without
limitation, the President and Chief Executive Officer) any form of
compensation, remuneration or reimbursement, with respect to any period on
or after the date of such officer's or employee's employment by the LLC,
without the consent of the other Member.
1.17 NEWSPRINT PURCHASES. Commencing as of the Effective Date, each of
Denver Post and Denver Publishing shall for each fiscal year of the LLC be
responsible for providing to the LLC at its cost (as hereinafter defined)
one-half of the newsprint needs of the LLC as reasonably forecast and determined
by the LLC's President and Chief Executive Officer. For such purposes, Denver
Post's and Denver Publishing's costs shall be deemed to be the average price
paid for Denver deliveries by each entity (without any corporate ▇▇▇▇-up)
pursuant to newsprint contracts or otherwise. If Denver Post and/or Denver
Publishing shall for any reason be unable to fulfill such obligations, the
President and Chief Executive Officer shall secure such additional newsprint as
he determines may be needed from whatever source he deems appropriate.
1.18 INITIAL ACTIVITIES OF THE LLC. The activities of the LLC prior to the
Effective Date shall include the provision of publishing services to the Post
Entities and planning for implementation of the joint newspaper operating
arrangement contemplated by this Agreement and shall be limited to activities
that do not require the prior written consent of the Attorney General. Prior to
the Effective Date, nothing in this Agreement, the Limited Liability Company
Operating Agreement or The Denver Newspaper Agency Contribution and Sale
Agreement shall limit competition between Denver Post and Denver Publishing or
their Affiliates or business ventures or activities Denver Post and Denver
Publishing or their Affiliates may legally pursue together.
ARTICLE 2
ACTIVITIES OF THE LLC
The parties agree as follows with respect to the activities of the LLC and
their own activities from and after the Effective Date:
2.1 PUBLICATION OF NEWSPAPERS.
(a) The LLC shall at its expense print, produce, distribute, and
market (both as to circulation and advertising) THE DENVER POST (in broadsheet
format) each weekday and Sunday morning and DENVER ROCKY MOUNTAIN NEWS (in
tabloid format with such news sections in broadsheet format as Denver Publishing
chooses to include, consistent with current practices) each weekday morning and
(in tabloid format with conversion to broadsheet format as soon as reasonably
practicable from a production standpoint in the judgment of the Management
Committee acting by Absolute Majority Vote) each Saturday morning, and shall
otherwise jointly or separately exploit as it determines appropriate the
advertising and/or news content of either or both publications, by mail, private
delivery and/or such other technologies as the LLC may from time to time
determine appropriate, subject to any separate agreements which may have been
entered into prior to the Effective Date (as hereinafter defined) by and between
Denver Post and Denver Publishing. The Saturday and Sunday editions of the
Newspapers published by the LLC shall contain editorial pages and selected
features from each of DENVER ROCKY MOUNTAIN NEWS and THE DENVER POST. The
Saturday edition shall be published under a joint masthead to which Denver Post
and Denver Publishing shall mutually agree (the "Saturday Edition"). The Sunday
edition shall be published under a joint masthead to which Denver Post and
Denver Publishing shall also mutually agree (the "Sunday Edition").
(b) The LLC shall control, supervise, manage, and perform all
operations (other than news/editorial operations) involved in printing,
producing, distributing, and marketing the Newspapers; shall determine the
edition times after consultation with the respective editors of such Newspapers;
shall purchase materials, supplies, and national supplements as appropriate;
shall solicit and sell advertising space in such Newspapers; shall, subsequent
to the Effective Date, collect all accounts receivable, whether such accounts
receivable come into existence prior to, on or after the Effective Date; shall
establish circulation and advertising rates (but not advertising acceptability
standards) for such Newspapers; and shall make all determinations and decisions
and do any and all acts and things necessarily connected with the foregoing
activities. Additionally, the cost of performing these functions shall be borne
by the LLC.
(c) The LLC will promote circulation and advertising to enhance or
improve the circulation and advertising sales of each Newspaper and to allow
each Newspaper to achieve its full market potential.
(d) The LLC shall distribute such TMC product relative to the Denver
market as it determines appropriate.
(e) The LLC may also engage in any non-news and non-editorial
activities that would be appropriate for a single newspaper publisher, including
but not limited to commercial printing and all other activities determined by
the Management Committee to be consistent with the LLC's principal business
purpose. Non-news and non-editorial activities with respect to any Newspapers
published within the State of Colorado by Denver Post, Denver Publishing or
their Affiliates other than THE DENVER POST or DENVER ROCKY MOUNTAIN NEWS shall,
to the extent permitted by law, include such joint advertising sales, joint
subscription sales, joint delivery or other services as the LLC may from time to
time determine to be appropriate, upon terms mutually agreeable to both Denver
Post and Denver Publishing.
2.2 PROPERTY USED. In producing and carrying on the businesses of the
Newspapers under this Agreement, the LLC shall print such Newspapers and conduct
all operations under this Agreement, except the operations of the news and
editorial departments of the two Newspapers, with the LLC's equipment and from
the LLC's plant or plants, or from the plant or plants of independent
contractors selected by the LLC. The LLC may also utilize the Licenses granted
to it to the extent necessary to carry on the activities of the LLC pursuant to
this Agreement.
2.3 EDITORIAL INDEPENDENCE. Preservation of the editorial independence of
each Newspaper is the essence of this Agreement. To this end, subsequent to the
Effective Date, the news and editorial material for editions of THE DENVER POST
shall be gathered, prepared, and laid out by Denver Post and the news and
editorial material for editions of DENVER ROCKY MOUNTAIN NEWS shall be gathered,
prepared, and laid out by Denver Publishing. THE DENVER POST'S and DENVER ROCKY
MOUNTAIN NEWS' news and editorial staffs and news and editorial policies shall
be independent of each other and of the LLC. Without limiting the generality of
the foregoing, Denver Post and Denver Publishing each shall have the exclusive
right to determine the editorial format, dress, layout, and news and feature
content of editions of its Newspaper published subsequent to the Effective Date.
All personnel responsible for the news and editorial content of THE DENVER POST
shall be employees of Denver Post and shall be subject to the direction and
authority of Denver Post, and all personnel responsible for the news and
editorial content of DENVER ROCKY MOUNTAIN NEWS shall be employees of Denver
Publishing and shall be subject to the direction and authority of Denver
Publishing.
2.4 NEWS AND EDITORIAL SERVICES AND EXPENSES.
(a) Commencing as of the Effective Date, each Newspaper shall
maintain an adequate staff of news, editorial, and photographic employees, and
shall furnish the LLC complete news and editorial services necessary and
appropriate for the publication of such Newspaper in the manner provided in this
Agreement. Each Newspaper, in furnishing news and editorial copy and like
materials to the LLC for publication, shall conform to the mechanical standards
and limitations which prevail at the time of production in the plant or plants
used by the LLC for the printing of such Newspaper, including press times
established by the LLC.
(b) In order to equitably distribute between Denver Post and Denver
Publishing the cost of producing the news for its Newspaper, and in
consideration of evolutionary changes (attributable to market demand) in the
number of pages of various editions of the Newspapers, the LLC shall credit
Denver Post and Denver Publishing for supplying news to fill basic newsholes
(the "Newshole") as follows:
(i) The President and Chief Executive Officer shall specify
annually a news to advertising ratio for the Monday through Friday
editions in the aggregate (the "Weekly Ratio") which shall be the same for
both THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS; and,
(ii) The President and Chief Executive Officer shall also
specify annually separate and discrete news to advertising ratios for the
special edition of DENVER ROCKY MOUNTAIN NEWS to be published on Saturday
(the "Saturday Ratio") and the special edition of THE DENVER POST to be
published on Sunday (the "Sunday Ratio").
(c) During the Term of this Agreement, the Newshole for each
Newspaper shall be equivalent from week to week to that for the other Newspaper
after adjustment for format (broadsheet or tabloid). Denver Post or Denver
Publishing may elect to publish pages of news content in excess of its Newshole,
provided that (1) the LLC has the production capacity to produce the pages as
scheduled, and (2) the Member which elects to publish excess pages of news
content shall be charged for the cost of production equal to a rate set annually
by the President and Chief Executive Officer based on average setup costs per
page (the "Basic Page Charge") multiplied by the number of excess pages of news
content, plus the average cost of newsprint, ink, labor, and other variable
costs per page (the "Variable Page Charge") multiplied by the number of pages to
be inserted and multiplied by the number of copies printed in which the extra
news content pages are inserted (the "Total Excess Page Charge"). There shall be
a Basic Page Charge and a separate Variable Page Charge for those editions of
the Newspapers which are published in broadsheet and tabloid format, which shall
be comparable for both THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS.
(d) The President and Chief Executive Officer shall specify annually
allocations of editorial color and color pages to THE DENVER POST and DENVER
ROCKY MOUNTAIN NEWS (the "Color Allocations") in the same proportions that the
color pages published by THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS
individually have to the total of color pages published in THE DENVER POST and
DENVER ROCKY MOUNTAIN NEWS collectively during the prior fiscal year.
(e) Denver Post or Denver Publishing may elect to publish pages
using color in excess of their Color Allocations, provided that (1) the LLC has
the production capacity to produce the pages using excess color as scheduled,
and (2) the Member which elects to use excess color shall be charged for the
cost of production equal to a rate set separately for broadsheet and tabloid
editions of the Newspapers, determined on a comparable basis annually by the
President and Chief Executive Officer based on average set up costs per page
(the "Basic Color Charge") multiplied by the number of pages on which the excess
color is to be used plus the average cost of ink, labor, and other variable
costs per page (the "Variable Color Charge") multiplied by the number of pages
on which the excess color is to be used and multiplied by the number of copies
printed in which the extra color is used (the "Total Excess Color Charge"). The
Basic Color Charge and the Variable Color Charge shall be comparable for both
THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS.
(f) Denver Post or Denver Publishing may elect to publish any
special news section in excess of its Newshole provided that (i) the LLC has the
production capacity to produce the pages for each section as scheduled and (ii)
the party electing to publishing any such special section shall be charged for
the cost of production thereof in excess of the Total Excess Page Charge and the
Total Excess Color Charge that such party is required to bear under this
Agreement.
(g) Except as adjusted by the charges contemplated in Sections
2.4(c) and (e), all Editorial Expense (as defined hereafter) of the news and
editorial functions of THE DENVER POST shall be borne by Denver Post and all
Editorial Expense of the news and editorial functions of DENVER ROCKY MOUNTAIN
NEWS shall be borne by Denver Publishing. The term "Editorial Expense" as used
in this Agreement (except as may otherwise expressly be provided herein or
otherwise by Denver Post and Denver Publishing with respect to the Saturday
and/or Sunday editions of the Newspapers) shall mean all costs and expenses
associated with the news and editorial departments of THE DENVER POST, or DENVER
ROCKY MOUNTAIN NEWS, as the case may be, including but not limited to: (i)
compensation, retirement, pension, health and death benefits, worker's
compensation insurance, and group insurance of news and editorial employees;
(ii) severance pay of news and editorial employees; (iii) travel and other
expenses of news and editorial employees; (iv) press association assessments and
charges; (v) charges for news services, photo services and supplies, and
editorial wire services; (vi) charges for the right to publish news and
editorial features, comics, and other news and editorial material of every kind
and character; (vii) the cost of news and editorial materials, printing,
stationery, office supplies, and postage for the news and editorial departments;
(viii) donations and dues; (ix) telegraphic, telephone, and long-distance
telephone charges of such news and editorial departments; the cost and expense
of maintaining the operation of a newspaper "morgue"; and (x) professional fees;
PROVIDED, HOWEVER, that (a) the term "Editorial Expense" shall not include the
cost of unfurnished office space provided by the LLC pursuant to Section 2.5
hereof, which shall be provided at the sole cost and expense of the LLC, and (b)
equipment that is an integral part of the production process even though located
in the news and editorial departments of a Newspaper. Notwithstanding the
foregoing, the following Editorial Expenses for the Saturday and Sunday editions
of the Newspapers shall be the sole responsibility of the LLC and if paid in the
first instance by Denver Post or Denver Publishing shall be promptly reimbursed
by the LLC: (i) the cost of all comics in the Saturday and Sunday Newspapers, it
being the anticipation of the parties that such Newspapers will have a
substantially expanded comics section; (ii) all costs associated with the Sunday
television book (such book to bear the same joint masthead as the Sunday
Edition); (iii) the costs of weekly stock listings or other weekly business data
included in any Saturday or Sunday publications; and (iv) the cost of magazine
supplements such as PARADE or U.S. TODAY.
2.5 OFFICE SPACE. The LLC shall provide each of Denver Post and Denver
Publishing with comparably furnished, separate office space in Denver, Colorado
which shall be adequate for the separate use of the news and editorial
departments of THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS, as the case may
be. Such office space shall include appropriately furnished office space for the
news and editorial executives of each Newspaper. Such office space, together
with utility services (other than telephone or other voice or data transmission
charges), shall be provided at the expense of the LLC, and no rent or other
similar charge shall be paid for such space by Denver Post or Denver Publishing
or charged by the LLC.
ARTICLE 3
QUALITY OF CONTENT AND BUDGETS
The parties agree that from and after the Effective Date:
3.1 QUALITY OF CONTENT. Denver Post and Denver Publishing shall use all
reasonable efforts to maintain the status of their respective publications as
leading newspapers in the Denver area and throughout the state of Colorado.
Denver Post and Denver Publishing shall seek to insure that the editorial
quality of each of their respective publications meets the highest journalistic
standards. Each of Denver Post and Denver Publishing shall be solely responsible
for the news and editorial content of its Newspaper.
3.2 BUDGETS. No later than 45 days before the beginning of each fiscal
year, the President and Chief Executive Officer shall submit capital, operating
and cash flow budgets (collectively, the "Budgets") covering the next succeeding
fiscal year of the LLC to the Management Committee. The Operating Budget will
incorporate the Weekly Ratio, Saturday Ratio, Sunday Ratio, Basic Page Charge,
Variable Page Charge, Color Allocation, Basic Color Charge, and Variable Color
Charge, as authorized for that fiscal year. The President and Chief Executive
Officer shall seek and receive an approval of all of the Budgets and any
amendments thereto in their entirety by an Absolute Majority Vote of the
Management Committee prior to the implementation of them.
ARTICLE 4
DUTIES OF LLC, INCLUDING DISTRIBUTION OF AVAILABLE CASH
4.1 DUTIES OF LLC. The LLC agrees that from and after the Effective Date,
it will:
(a) manage and operate all of the departments of the publishing
businesses for THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS (excluding the
news and editorial departments) and set and establish the respective advertising
and subscription rates (but not advertising acceptability standards) of THE
DENVER POST and DENVER ROCKY MOUNTAIN NEWS from time to time;
(b) receive and collect all of the receipts and income relating to
THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS, and from such income pay all
operating expenses incidental to the publication of the Newspapers (except for
news and editorial expenses, other than as herein expressly provided) in the
manner and to the extent provided in this Agreement and The Denver Newspaper
Agency Limited Liability Company Operating Agreement;
(c) subject to Section 1.8 hereof and any applicable provisions of
The Denver Newspaper Agency Limited Liability Company Operating Agreement,
distribute to Denver Post and Denver Publishing at least monthly, or at more
frequent intervals as may be directed by the President and Chief Executive
Officer, Net Available Cash From Operations, as defined in The Denver Newspaper
Agency Limited Liability Company Operating Agreement;
(d) collect any amounts required to be collected by it pursuant to
Section 1.7 hereof; and,
(e) account monthly to Denver Post and Denver Publishing for all
revenues and expenditures, and keep Denver Post and Denver Publishing regularly
informed of its affairs and business.
4.2 ALLOCATION OF PROFITS OR LOSSES AND DISTRIBUTIONS OF CASH.
(a) Commencing with the Effective Date, Profits and Losses, as
defined in The Denver Newspaper Agency Limited Liability Company Operating
Agreement, shall be allocated among the Members in accordance with the
provisions of The Denver Newspaper Agency Limited Liability Company Operating
Agreement.
(b) Commencing with the Effective Date, distributions of Net
Available Cash From Operations shall, subject to the provisions of Section 1.8
hereof, be distributed to the Members in accordance with The Denver Newspaper
Agency Limited Liability Company Operating Agreement.
(c) The LLC shall be reimbursed by the Members for the Total Excess
Page Charges and the Total Excess Color Charges pursuant to Sections 2.4(c) and
2.4(e) that may be due by them and for all Editorial Expenses of either party
which the LLC in the first instance may have paid on their behalf, including but
not limited to salaries and related benefits for their respective news and
editorial staffs. In either case the LLC will account for these items before
computing Profits or Losses.
4.3 BOOKS AND RECORDS. Accurate, full, and complete books of accounts and
records, wherein all transactions of the LLC shall be entered, shall be kept at
the principal office of the LLC for the account of the LLC in accordance with
generally accepted accounting principles consistently applied (except as
otherwise agreed by Denver Post and Denver Publishing) and, additionally, in
accordance with the Code and regulations promulgated thereunder. Commencing with
the Effective Date, Denver Post, Denver Publishing, and their respective
representatives shall have the right to inspect, audit, copy or reproduce, each
at its own expense, the books and records of the LLC.
4.4 FINANCIAL STATEMENTS. Commencing with the Effective Date, the
President and Chief Executive Officer shall cause to be delivered to Denver Post
and to Denver Publishing the following financial statements and reports of the
LLC prepared, in each case, in accordance with generally accepted accounting
principles consistently applied (except as may be otherwise agreed by Denver
Post and Denver Publishing):
(a) promptly upon their availability and in any event within four
(4) business days after the end of each month, unaudited statements of income or
loss and cash flows and an unaudited balance sheet for the interim period
through such month and the monthly period then ended and for the fiscal
year-to-date, in reasonable detail, such statements of income or loss and cash
flows for such period and for the fiscal year-to-date to include (1) a
comparison of the fiscal year-to-date and the interim and monthly periods then
ended with the corresponding periods for the fiscal year immediately preceding,
if any, and (2) a comparison of actual to budgeted cash flows and income or
loss;
(b) promptly upon their availability and in any event within four
(4) business days after the end of each quarterly period in each fiscal year, an
unaudited balance sheet and unaudited statements of income or loss and cash
flows for the quarterly period then ended and for the fiscal year-to-date, in
reasonable detail, such statement to include (1) a comparison of the fiscal
year-to-date and the interim and quarterly periods then ended with the
corresponding periods of the fiscal year immediately preceding, if any, and (2)
a comparison of actual to budgeted cash flows and income or loss;
(c) promptly upon their availability and in any event within four
(4) business days after the end of each fiscal year, an unaudited balance sheet
and unaudited statements of income or loss and cash flows for the fiscal year
then ended, all in reasonable detail, such statements to include (i) a
comparison of the current fiscal year with the fiscal year immediately
preceding, if any, and (ii) a comparison of actual to budgeted cash flows and
income or loss;
(d) promptly upon their availability and in any event within
fourteen (14) days after the end of each fiscal year, an unaudited balance sheet
of the LLC as at the end of such fiscal year, and unaudited statements of income
or loss and cash flows for such fiscal year, all in reasonable detail, such
balance sheet and statements of income or loss and cash flows to include a
comparison of the current fiscal year with the fiscal year immediately
preceding, if any; and
(e) promptly upon their availability and in any event within sixty
(60) days after the end of each fiscal year, an audited balance sheet of the LLC
as at the end of such fiscal year, and audited statements of income or loss and
cash flows for such fiscal year, all in reasonable detail and accompanied by an
opinion thereon of the LLC's independent certified public accountants, such
balance sheet and statements of income or loss and cash flows to include a
comparison of the current fiscal year with the fiscal year immediately
preceding, if any.
4.5 AUDITORS AND FISCAL YEAR. Commencing with the Effective Date, the
independent auditors of the LLC shall be selected by Denver Publishing and
Denver Post on a four-year rotating basis and shall be one of the five largest
accounting firms in the United States (the "Big Five"). Commencing with the
Effective Date, the independent auditors of the LLC shall be the independent
auditors of Denver Publishing, and such auditors shall serve through the end of
the fourth fiscal year of the LLC following the Effective Date. At least six
months before the end of each four-year period, the Member who may choose the
auditors for the next four-year period shall give notice to the LLC and the
other Member(s) of its election to select independent auditors for the LLC. Any
selection of auditors hereunder shall be limited to the Big Five firm or firms
then serving as the independent auditors of Denver Post or Denver Publishing.
Failure to give such notice shall be deemed an election to retain the auditors
then engaged by the LLC. The LLC shall keep its books on a calendar-year basis.
4.6 TAX RETURNS. Commencing with the Effective Date, Tax returns for the
LLC shall be dealt with in the manner prescribed in The Denver Newspaper Agency
Limited Liability Company Operating Agreement.
ARTICLE 5
GOVERNANCE OF LLC
5.1 MANAGEMENT COMMITTEE.
As of and subsequent to the Effective Date, the business and affairs
of the LLC shall be managed by a committee (the "Management Committee") to be
composed of four (4) members, two (2) of which shall be appointed collectively
by Denver Post and Eastern Colorado and shall be the Chief Executive Officer and
Chief Financial Officer of Denver Post (or their designees), and two (2) of
which shall be appointed by Denver Publishing and shall be the Chief Executive
Officer and Chief Financial Officer of The ▇.▇. ▇▇▇▇▇▇▇ Company, an Ohio
corporation and parent of Denver Publishing (or their designees). Commencing as
of the Effective Date, a single member of the Management Committee shall be
selected, as hereinafter provided, to serve as Chairman of the Management
Committee for a four (4) year term or until the selection of his successor. The
Chairman of the Management Committee shall preside over all meetings of the
Management Committee and shall perform such other functions and responsibilities
as the members of the Management Committee may from time to time appropriately
delegate to such person under the terms of the Limited Liability Company
Operating Agreement or otherwise. The initial Chairman of the Management
Committee shall, as of the Effective Date, be selected by those members of the
Management Committee appointed by Denver Post and Eastern Colorado, and
thereafter the members of the Management Committee appointed by Denver
Publishing and by Denver Post and Eastern Colorado, respectively, shall
alternate selecting such Chairman every four (4) years. Commencing as of the
Effective Date, the Management Committee (acting by Absolute Majority Vote)
shall appoint annually a President and Chief Executive Officer of the LLC,
reporting to it, to serve for a term of one year and until his or her successor
is elected. The President and Chief Executive Officer shall, in consultation
with the Management Committee, oversee all activities of the LLC, consistent
with the terms of this Agreement, the Limited Liability Company Operating
Agreement and the NPA, in accordance with annual operating and capital budgets
approved by the Management Committee. The Management Committee (acting by
Absolute Majority Vote) may remove the President and Chief Executive Officer at
any meeting and elect his or her successor. In the case of a deadlock with
respect to any matter to be acted upon by the Management Committee (other than
the election or removal of a President and Chief Executive Officer and such
other matters reserved solely for decision by an Absolute Majority Vote of the
Management Committee or by the Members unanimously under the Limited Liability
Company Operating Agreement and therein designated as "Reserved Matters,"
hereafter collectively, the "Reserved Matters"), the President and Chief
Executive Officer of the LLC shall be empowered to break such deadlock. Any
deadlock concerning any Reserved Matter shall be resolved in the manner provided
in The Denver Newspaper Agency Limited Liability Company Operating Agreement.
5.2 THE PRESIDENT AND CHIEF EXECUTIVE OFFICER. Commencing as of the
Effective Date, the President and Chief Executive Officer shall, in consultation
with the Management Committee, have general charge and supervision of the
business of the LLC, but shall have no duties or authority with respect to the
news and editorial functions of THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS.
5.3 CERTAIN OTHER MATTERS. Commencing as of the Effective Date, the
President and Chief Executive Officer shall conduct the business of the LLC
pursuant to the terms hereof as a stand-alone, independent, joint venture of the
Members. Subject to legal and contractual obligations, the President and Chief
Executive Officer shall select qualified managers, executives, and personnel,
and shall supervise the facilities and equipment used by the LLC and the
operating systems and procedures of the LLC with respect to advertising,
circulation, production, finance, personnel, and promotion. The President and
Chief Executive Officer shall at all times act independently and disinterestedly
as between Post Entities and Denver Publishing and in the best interests of the
LLC.
5.4 COMPENSATION. The cost (including compensation) of the President and
Chief Executive Officer and his or her staff shall be paid by the LLC.
ARTICLE 6
OTHER MATTERS
6.1 REPRESENTATIONS AND WARRANTIES. Each of the LLC, Denver Post, Eastern
Colorado and Denver Publishing hereby represents and warrants to each other
that:
(a) It is a corporation or limited liability company (as
hereinbefore indicated) which is duly incorporated and in good standing under
the laws of its jurisdiction of incorporation and is qualified to do business in
Colorado.
(b) The consummation of the transactions provided for herein, in the
Licenses, in The Denver Newspaper Agency Contribution and Sale Agreement and in
The Denver Newspaper Agency Limited Liability Company Operating Agreement, will
not conflict with, or result in a default under, or a violation of, any
provision of its charter, bylaws or operating agreement (as applicable) or any
agreement or instrument to which it is, or on the Effective Date may be, a party
or by which it is, or on the Effective Date may be, bound.
(c) The execution and delivery by it of this Agreement, The Denver
Newspaper Agency Contribution and Sale Agreement, the Licenses and The Denver
Newspaper Agency Limited Liability Company Operating Agreement have been duly
and validly authorized by all necessary corporate action on its part; and this
Agreement, The Denver Newspaper Agency Contribution and Sale Agreement, the
Licenses, and The Denver Newspaper Agency Limited Liability Company Operating
Agreement have been duly executed and delivered by it.
(d) Subject to obtaining the written consent referred to in Section
6.3 hereof, this Agreement, the Licenses, The Denver Newspaper Agency Limited
Liability Company Operating Agreement and The Denver Newspaper Agency
Contribution and Sale Agreement constitute its valid and binding obligation, and
no approval or consent is necessary for the execution, delivery and performance
by it of this Agreement, The Denver Newspaper Agency Contribution and Sale
Agreement, the Licenses or The Denver Newspaper Agency Limited Liability Company
Operating Agreement, except for such as have heretofore been obtained and are in
full force and effect.
(e) It has no knowledge of facts that would materially adversely
affect the value of any material asset (or the assets in the aggregate) to be
transferred by it or its Affiliates to the LLC.
As used in this Agreement, "Affiliate" means, with respect to any party, (i) any
entity directly or indirectly controlling, controlled by or under common control
with such party, (ii) any entity owning or controlling ten percent or more of
the outstanding voting securities of such party, (iii) any officer or director
of such party or any entity owning an interest as a general partner in such
party, or (iv) any entity that is a general partner, trustee or holder of ten
percent or more of the voting securities of any entity described in clauses (1)
through (iii) of this sentence. As used herein, the term "entity" shall mean any
individual, partnership, corporation, trust or other business organization.
6.2 CERTAIN ACTION. Each party agrees to take all actions reasonably
necessary and/or appropriate to carry out and effectuate the intent, purposes,
and provisions of this Agreement and The Denver Newspaper Agency Limited
Liability Company Operating Agreement and to cooperate with the others in every
reasonable and proper way that will promote the successful operation of the
joint operating arrangement under this Agreement and The Denver Newspaper Agency
Limited Liability Company Operating Agreement.
6.3 NPA FILING. As soon as practicable after the date hereof, an
application shall be filed by Denver Post and Denver Publishing with the
Department of Justice, and other appropriate procedures shall be implemented, to
secure as soon as possible the written consent of the Attorney General of the
United States as provided in Section 4(b) of the NPA. Each party shall support
the application fully in every reasonable respect and shall cooperate in and
coordinate with respect to the taking of all appropriate steps to secure
approval of the application. Whether or not the Attorney General determines to
give such written consent, this Agreement and The Denver Newspaper Agency
Limited Liability Company Operating Agreement shall not terminate earlier than
May 1, 2005 so long as either Denver Post or Denver Publishing elects to
continue the process of seeking agency or judicial review. For purposes of the
application, Denver Post and Denver Publishing shall each promptly designate
"contact persons" for such coordination and consultation as is appropriate and
proper and shall each give the other parties prompt written notice of such
designation in the manner provided in Section 9.1 hereof. Furthermore, Denver
Post and Denver Publishing shall make available, through their authorized
representatives, such information as is necessary and appropriate in obtaining
the Attorney General's approval of the application. All information which Denver
Post, Denver Publishing or the LLC secure as a result of such access shall be
held in confidence, shall not (except as legally required) be disclosed without
the consent of the party from which the information is obtained, and shall not
be used for competitive purposes. All documents which Denver Post, Denver
Publishing or the LLC obtain as a result of such access shall be returned or
destroyed in the event the transactions contemplated by this Agreement are not
consummated.
6.4 ANNOUNCEMENTS. Except as required by law, no party hereto will make
any public announcement concerning this Agreement and the transactions
contemplated hereby prior to the first mutually agreed upon announcement thereof
without the consent of the other parties and then only upon the maximum advance
notice to the other parties which is practicable under the circumstances.
6.5 INTERIM COVENANTS.
(a) Each of Post Entities and Denver Publishing covenants and agrees
that from the date hereof to and including the Effective Date it shall, with
respect to its Newspaper, continue to carry on its business in the ordinary
course. The LLC hereby covenants and agrees that from the date hereof to and
including the Effective Date, it shall carry on its business in the ordinary
course consistent with the course of conduct heretofore and hereafter by Denver
Post with respect to its Newspaper. From the date hereof to and including the
Effective Date, neither the Post Entities nor Denver Publishing, with respect to
its Newspaper, or the LLC with respect to its business will:
(i) engage in any transaction materially affecting it, its
assets or Liabilities, except in the normal and ordinary course of that
entity's business;
(ii) fail to use reasonable efforts to prevent any event or
transaction from occurring which materially adversely affects that
entity's business, operations, assets, Liabilities, financial condition or
future prospects;
(iii) fail to use reasonable efforts to preserve intact its
present organization, keep available the services of its employees,
preserve its relationships with customers, suppliers and others having
business dealings with it, to the end that its goodwill and ongoing
business will not be materially impaired prior to the Closing;
(iv) sell, lease, transfer or agree to sell, lease or transfer
any material asset of its Newspaper or relating to a Newspaper, except in
the ordinary course of business;
(v) adopt or modify any pension, profit-sharing or other
compensation plan (except as required by law or except for changes which
would not affect the level of benefits) or enter into any contract of
employment or permit any increases or changes in the compensation of
employees of its Newspaper (including bonuses), except in accordance with
past practices and in the ordinary course, or except as a result of
collective bargaining heretofore or hereafter undertaken in the ordinary
course, except to the extent required by law and except for retention
arrangements made with employees of its Newspaper as a result of or in
connection with the transactions contemplated by this Agreement;
(vi) enter into or amend any material contract or commitment,
waive any material right or enter into any other material transaction,
other than in the ordinary course; or
(vii) enter into any agreement to take any actions specified
in this Section 6.5.
(b) Each party will promptly notify the others in writing upon
becoming aware of any order or decree or any complaint praying for an order or
decree restraining or enjoining the consummation of this Agreement or the
transactions contemplated hereby, or upon receiving any notice from any
governmental department, court, agency or commission of its intention to
institute an investigation into, or institute a suit or proceeding to restrain
or enjoin the consummation of this Agreement or such transactions, or to nullify
or render ineffective this Agreement or such transactions if consummated.
(c) This Agreement is subject to such obligations and duties as may
be imposed on any party by statute, regulation, contract or law; and no party
shall be liable for any damages to any other party, or any other person, for
reasonable actions taken in compliance with such obligations. In the event that
any court, administrative agency or tribunal, by order, determination or
administrative action, requires a party to take actions in compliance with
obligations and duties that may be imposed by statute, regulation, contract or
law as a condition or precondition to the undertakings herein, or determines to
initiate proceedings or does initiate proceedings to compel such actions of a
party, then such party may take such actions as reasonably are required for
compliance with such obligations and duties, or to discharge, adjust or settle
such orders, determinations, administrative action or proceedings, it being
agreed and understood that the parties will use all reasonable efforts to oppose
the imposition of any such order, determination, administrative action or
proceeding.
(d) Each of Post Entities and Denver Publishing, shall
conscientiously endeavor to perform on a timely basis all obligations required
to be performed by it under all contracts and leases relating to its Newspaper.
ARTICLE 7
DURATION; TERMINATION
7.1 TERM. Unless renewed as provided in this Section 7.1 or terminated
pursuant to Section 7.2, this Agreement and The Denver Newspaper Agency Limited
Liability Company Operating Agreement shall continue for a term ending at the
close of business on the last day of the fiftieth full fiscal year following the
Effective Date, whereupon this Agreement and The Denver Newspaper Agency Limited
Liability Company Operating Agreement shall expire and terminate. This Agreement
shall automatically renew for succeeding renewal periods of 25 years each,
unless either Denver Post or Denver Publishing notifies the other in writing at
least five years before the end of the then current period (including renewal
periods), of the election of the party giving the notice to terminate this
Agreement. If such notice is given, this Agreement shall terminate at the end of
the initial period or the then current renewal period during which the notice is
given.
7.2 TERMINATION OF THIS AGREEMENT; DISSOLUTION OF THE LLC.
(a) Prior to the Effective Date, this Agreement shall terminate on
May 1, 2005, if the Effective Date shall not have occurred on or before such
date, or upon such earlier date, if any, as the parties hereto may mutually
agree upon in writing.
(b) After the Effective Date, this Agreement shall terminate only as
hereinafter provided in this Section 7.2.
(c) After the Effective Date, no Member shall cause the LLC to be
dissolved except as provided herein and in The Denver Newspaper Agency Limited
Liability Company Operating Agreement. After the Effective Date, the LLC shall
continue until dissolved as herein and thereafter provided. The LLC shall,
subject to the provisions of subsection (e) hereof and to all applicable
provisions of The Denver Newspaper Agency Limited Liability Company Operating
Agreement, be dissolved upon the occurrence of any of the following:
(i) expiration of the term of this Agreement, as set forth in
Section 7.1 hereof or of the Limited Liability Company Operating
Agreement;
(ii) at the written election of a Member if any Member
willfully or persistently commits one or more material breaches of this
Agreement or The Denver Newspaper Agency Limited Liability Company
Operating Agreement, or otherwise so conducts itself in matters relating
to the LLC business that it is not reasonably practicable to carry on the
business of the LLC; PROVIDED, HOWEVER, that such election may be made
only if the electing Member has given written notice to the other Members
of such breaches or conduct and such breaches or conduct have not been
substantially cured within 90 days after such notice has been given.
(iii) if the LLC experiences a net loss from its operations,
before depreciation and amortization, as determined in accordance with
generally accepted accounting principles consistently applied, for any
three consecutive fiscal years, then, at any time within six months
following the end of any such three consecutive fiscal years, any Member
may give the others written notice of its intention to terminate this
Agreement, and thereafter this Agreement shall (subject to the provisions
of subsection (e) hereof) terminate three years after the end of such
three consecutive fiscal years, or earlier if mutually agreed by Denver
Post and Denver Publishing.
(d) No termination of this Agreement or dissolution of the LLC shall
be construed to release any Member from liability at law or in equity to the
other Members or the LLC arising out of any breach of the terms of this
Agreement or The Denver Newspaper Agency Limited Liability Company Operating
Agreement.
(e) As soon as practicable after the termination of this Agreement
by lapse of time or otherwise, the LLC shall liquidate as provided in Section
7.3 and all applicable provisions of The Denver Newspaper Agency Limited
Liability Company Operating Agreement.
7.3 TERMINATION AT END OF TERM. Upon the termination of this Agreement and
The Denver Newspaper Agency Limited Liability Company Operating Agreement, by
lapse of time or otherwise:
(a) Denver Post and Denver Publishing will meet with each other and
use their best efforts to develop a just and equitable plan for discontinuing
and dissolving the LLC and distributing its assets in kind between Post Entities
and Denver Publishing (after collection of all receivables and payment of all
indebtedness and liabilities of the LLC and all costs of dissolution and
liquidation), in accordance with the Members' respective Percentage Interests in
the LLC, so as to enable Denver Post and Denver Publishing to resume separate
publication of THE DENVER POST and DENVER ROCKY MOUNTAIN NEWS, respectively, as
independent businesses (a "Distribution Plan"). If Denver Post and Denver
Publishing agree on a Distribution Plan, the assets of the LLC shall be
distributed in accordance with the Distribution Plan, all Licenses shall
automatically expire and terminate, and the LLC shall thereupon be dissolved.
Except as provided in the Distribution Plan and upon effective distribution of
assets by the LLC pursuant thereto, neither Denver Post, Eastern Colorado nor
Denver Publishing shall have any separate right, title or interest in or to any
asset of the LLC.
(b) If Denver Post and Denver Publishing are unable to agree upon a
Distribution Plan, all receivables of the LLC shall be collected and the
business affairs and assets of the LLC shall in accordance with all applicable
terms of The Denver Newspaper Agency Limited Liability Company Operating
Agreement be liquidated as promptly as possible in an orderly and businesslike
manner. The proceeds shall be applied and distributed in accordance with the
terms of The Denver Newspaper Agency Limited Liability Company Operating
Agreement in the following order:
(1) To the payment and discharge of all of the LLC's debts and
liabilities (other than those to Post Entities and Denver Publishing),
including the establishment of any necessary reserves;
(2) To the payment of any debts and liabilities to Post
Entities and Denver Publishing, including, but not limited to those
arising pursuant to Section 1.8 hereof; and,
(3) To Denver Post, Eastern Colorado, and Denver Publishing,
or their successors, in accordance with their respective Percentage
Interests.
7.4 TRANSFERS OF INTERESTS UNDER THE AGREEMENT AND THE DENVER NEWSPAPER
AGENCY LIMITED LIABILITY COMPANY OPERATING AGREEMENT. After the Effective Date,
the transfer of the rights of any party under this Agreement or The Denver
Newspaper Agency Limited Liability Company Operating Agreement or as a Member of
the LLC shall be governed exclusively by the provisions regarding such transfer
set forth in The Denver Newspaper Agency Limited Liability Company Operating
Agreement.
ARTICLE 8
COSTS AND LIABILITIES
8.1 RESPONSIBILITY FOR COSTS.
(a) COSTS FOR THE APPLICATION TO AND PROCEEDINGS WITH THE DEPARTMENT
OF JUSTICE. Each Member shall be responsible for its own costs, expenses and
liabilities which are directly part of the application to and proceedings with
the Department of Justice. Each of Post Entities (collectively) and Denver
Publishing shall be responsible for one-half of all costs and expenses of the
LLC with respect to such application and proceedings, including, but without
limitation, cost of the hired economists, accountants, or other experts needed
for such application and proceedings.
(b) COSTS FOR CERTAIN CHALLENGES TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT. Each Member shall be responsible for its own costs and expenses
(including, without limitation, costs of investigation and preparation) incurred
in the defense of any suit, action or proceeding initiated or threatened by any
governmental authority or any person or entity seeking to prohibit, enjoin or
restrain the transactions contemplated by this Agreement, or seeking damages in
connection with these transactions or otherwise attempting to challenge the full
implementation of the joint operating arrangement provided in this Agreement
including, without limitation, legal fees and other costs and expenses incurred
in connection with any such matter. Each of Post Entities, on the one hand, and
Denver Publishing, on the other, shall be responsible for one-half of all costs
and expenses of the LLC incurred in the defense of such suits, actions or
proceedings.
(c) CERTAIN OTHER COSTS AND TAXES. Except as otherwise expressly
herein provided, each party shall bear all fees and expenses incurred by such
party in connection with, relating to or arising out of the consummation of the
transactions contemplated hereby, including, without limitation, all taxes,
attorneys', accountants' and other professional fees and expenses. All
applicable sales, use and real estate transfer taxes, and all title insurance
and survey costs shall be paid by the LLC.
8.2 NATURE OF RELATIONSHIP. Nothing contained in this Agreement shall
constitute the parties hereto as alter egos or joint employers or as having any
relationship other than as specifically provided herein and in The Denver
Newspaper Agency Limited Liability Company Operating Agreement. Denver Post,
Eastern Colorado and Denver Publishing each will retain and be responsible for
(and will indemnify the other Members and the LLC against) all of its respective
debts, obligations, liabilities, and commitments which are not transferred to
and assumed by the LLC pursuant to this Agreement.
8.3 MEMBERS' INDIVIDUAL RESPONSIBILITIES.
(a) The entire cost and expense of defending, settling or paying and
discharging any liability or other claim on account of any article, feature,
advertisement, editorial or other item published in or excluded from THE DENVER
POST or DENVER ROCKY MOUNTAIN NEWS as a result of any act done or omitted to be
done by the news and editorial departments of THE DENVER POST or DENVER ROCKY
MOUNTAIN NEWS shall be borne by Denver Post or Denver Publishing, as the case
may be. Each of Denver Post and Denver Publishing agrees to indemnify and hold
the LLC, the other Members, each of such Member's Affiliates, its and their
directors, officers and employees harmless against any such liability, cost or
expense incurred by such party.
(b) Except as may otherwise be specifically provided in this
Agreement, no Member shall be charged with or held responsible for any claims
arising before or after the Effective Date hereof by reason of any act or
omission on the part of any other Member, and the responsible Member shall
defend, settle, pay or discharge any such matter, and shall indemnify and hold
harmless the other Members against any such matter, and from any liability, cost
or expense arising therefrom.
8.4 LLC'S RESPONSIBILITY. After the Effective Date, the entire cost and
expense of defending, settling or paying and discharging any liability or other
claim on account of (a) any article, feature, advertisement, editorial or other
item published in or excluded from THE DENVER POST or DENVER ROCKY MOUNTAIN NEWS
as a result of any act done or omitted to be done by the LLC or (b) any other
act done or omitted to be done by the LLC under this Agreement or The Denver
Newspaper Agency Limited Liability Company Operating Agreement shall be borne by
the LLC, except as otherwise expressly provided herein or therein. The LLC shall
indemnify and hold each of Denver Post, Eastern Colorado and Denver Publishing
and its Affiliates, directors, officers and employees harmless against any such
liability, cost or expense incurred by any of them.
8.5 FORCE MAJEURE. No party shall be liable to the others for any failure
or delay in performance under this Agreement or The Denver Newspaper Agency
Limited Liability Company Operating Agreement occasioned by war, riot, act of
God or public enemy, strike, labor dispute, shortage of any supplies, failure of
suppliers or workers or other cause beyond the control of the party required to
perform, and such failure or delay shall not be considered a default hereunder,
but this Section 8.5 shall not excuse any party from its obligation to pay any
sum of money which such party is otherwise required to pay pursuant to this
Agreement or The Denver Newspaper Agency Limited Liability Company Operating
Agreement.
ARTICLE 9
MISCELLANEOUS
9.1 NOTICES. Each notice or other communication given pursuant to this
Agreement or The Denver Newspaper Agency Limited Liability Company Operating
Agreement shall be deemed to have been duly given when hand delivered or three
days after being deposited in the United States mail, certified, postage
prepaid, return receipt requested, and addressed to the party to be notified at
such party's address as set forth below:
If to Denver Publishing to: Denver Rocky Mountain News
c/o The ▇.▇. ▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President and
Chief Financial Officer
Telecopier (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to either or both of the c/o MediaNews Group, Inc.
Post Entities (or to the ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
LLC prior to the Effective ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Date): Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
Executive Vice President and
Chief Financial Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to: Verner, Liipfert, Bernhard,
▇▇▇▇▇▇▇▇▇ and Hand, Chartered
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Telecopier. (▇▇▇) ▇▇▇-▇▇▇▇
The LLC shall on the Effective Date by notice to the other parties given in
accordance with this Section 9.1 designate an address for receipt on or after
such date of notices and communications hereunder. All such notices to the LLC
shall on or after such date be to the attention of the President and Chief
Executive Officer, with copies to Post Entities and Denver Publishing at the
addresses then designated by them for the receipt of such notices pursuant to
this Section 9.1. Any party may change its address or the individual to whom
notice is to be directed hereunder by notice to the other parties given in
accordance with this Section 9.1.
9.2 NON-ASSIGNABILITY. This Agreement shall be binding upon and shall
inure to the benefit of each of the parties hereto and their permitted
successors and assigns, but any attempt by any party to assign any of its rights
or to delegate any of its duties hereunder shall be subject to Section 7.4.
9.3 ENTIRE UNDERSTANDING. This Agreement (including the Exhibits) and The
Denver Newspaper Agency Contribution and Sale Agreement embody the entire
understanding and agreement of the parties on the subject matter herein and
therein contained and supersedes any and all prior agreements, arrangements, and
understandings relative to the subject matter hereof and thereof.
9.4 HEADINGS. Titles, captions or headings contained in this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit, extend or describe the scope of this Agreement or the intent of any
provisions hereto.
9.5 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Colorado.
9.6 MODIFICATIONS. This Agreement shall be amended only by an agreement in
writing and signed by the party against whom enforcement or discharge is sought.
9.7 SEVERABILITY. Each provision of this Agreement shall be considered
severable from the rest and if any provision of this Agreement or its
application to any person, entity or circumstance shall be held invalid and
contrary to any existing or future law or unenforceable to any extent, the
remainder of this Agreement and the application of any other provision to any
person, entity or circumstance shall not be affected thereby and shall be
interpreted and enforced to the greatest extent permitted by law so as to give
effect to the original intent of the parties hereto.
9.8 SPECIFIC PERFORMANCE. In addition to any other remedies the parties
may have, each party shall have the right to enforce the provisions of this
Agreement through injunctive relief or by a decree or decrees of specific
performance.
9.9 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement, express or
implied, shall give to anyone other than the parties hereto and their respective
permitted successors and assigns any benefit, or any legal or equitable right,
remedy or claim, under or in respect of this Agreement.
IN WITNESS WHEREOF, the parties have signed in multiple counterparts this
Agreement by their respective duly authorized signatories as of the day and year
above written.
THE DENVER POST CORPORATION
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
Executive Vice President and
Chief Financial Officer
EASTERN COLORADO PRODUCTION
FACILITIES, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
Executive Vice President and
Chief Financial Officer
DENVER POST PUBLISHING
FACILITIES LLC
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
Executive Vice President and
Chief Financial Officer
THE DENVER PUBLISHING COMPANY
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President and
Chief Financial Officer