EXHIBIT 99.2
[Form of]
MANAGEMENT AGREEMENT
--------------------
THIS AGREEMENT is made and entered into this day of ,
1997, between Kearns-Tribune Corporation, a Utah corporation ("KT") and The
Salt Lake Tribune Publishing Company, LLC, a Utah limited liability company (the
"Manager").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, KT has entered into that certain Agreement and Plan of
Reorganization and Merger, dated as of April 18, 1997, with Tele-Communications,
Inc., a Delaware corporation ("TCI"), and TCI KT Merger Sub, Inc., a Utah
corporation ("TCI Sub"), pursuant to which TCI Sub will merge with and into KT
in connection with the acquisition of KT by TCI;
WHEREAS, KT, through its subsidiaries and affiliates, owns and operates the
newspaper and related businesses set forth on Exhibit A (the "Newspapers"); and
WHEREAS, KT desires to engage the Manager to manage and operate the
Newspapers and the Manager desires to accept engagement, upon the terms and
subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the premises, covenants and
representations contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties thereto
agree as follows.
ARTICLE I
DEFINITIONS
-----------
1.01 Definitions. As used herein, the following terms shall have the
-----------
following meanings (terms defined in the singular to have the same meanings when
used in the plural and vice versa):
---- -----
Affiliate: With respect to any person, (a) any director, officer, employee,
---------
member or general partner of such person; and (b) any other person which,
directly or indirectly, controls, is controlled by or is under common control
with, such person. As used herein "control" shall
mean the power to direct or cause the direction of the management and policies
of a person, whether through the ownership of voting securities, by contract, or
otherwise.
Agency Accounts: As defined in Section 5.01.
---------------
Annual Plan or Plan: As defined in Section 3.04.
-------------------
Audit Delivery Date: As defined in Section 3.05.
-------------------
Board: The Board of Directors of KT.
-----
Consumer Price Index: The Consumer Price Index (All Items) published in the
--------------------
Monthly Labor Review by the U.S. Bureau of Labor Statistics or, if such index
--------------------
shall no longer be published, any comparable measure of changes in consumer
prices on a national basis that is prepared and published periodically by an
agency of the United States Government.
Joint Operating Agreement: The Amendment Agreement, dated June 1, 1982,
-------------------------
between KT and Deseret News Publishing Company.
KT Assets: All realty and personalty, tangible and intangible, whether
---------
owned or leased by KT or its subsidiaries, used or usable in connection with the
ownership and operation of the Newspapers.
Net Income: For any period, the net income of KT and its subsidiaries for
----------
such period after provision for taxes applicable to such period, as determined
on a consolidated basis in accordance with generally accepted accounting
principles, consistently applied.
ARTICLE II
TERM
----
2.01 Term. The term of this Agreement shall commence on the date hereof
----
and shall continue for an initial period of five (5) years thereafter unless
terminated sooner in accordance with Article VI. Thereafter, unless terminated
sooner in accordance with Article VI, this Agreement shall be automatically
renewed for successive one-year periods unless either party provides the other
with 180 days written notice prior to the end of the initial period, or 120 days
written notice prior to the end of any such renewal period, that it will not
renew this Agreement.
-2-
ARTICLE III
MANAGEMENT SERVICES
-------------------
3.01 Appointment; Executive Officers.
-------------------------------
(a) KT hereby appoints the Manager as the exclusive management agent
to supervise and manage the publication and operation of the Newspapers and to
render services related thereto, subject to the direction and authority of KT,
pursuant to the terms of this Agreement, and the Manager hereby accepts such
engagement.
(b) The responsibility for the day-to-day management and operations of
the Newspapers shall be vested in a Chief Executive Officer ("CEO") who shall
report on a day-to-day basis to the Manager. The Newspapers shall also have a
Chief Operating Officer ("COO") who shall report on a day-to-day basis to the
CEO. The individuals designated to serve as the CEO and the COO shall be
selected by the Manager and approved by KT, which approval shall not be
unreasonably withheld. KT shall have the authority to terminate the CEO upon 30
days' notice if, in its reasonable business judgment, the CEO is not adequately
or fairly serving the Newspapers. The CEO shall have the authority to terminate
the COO and to designate a replacement to serve until such time as the Manager
shall have appointed (and KT shall have approved) a new COO. During any period
when there is no CEO, the COO shall have the duties and responsibilities
assigned to the CEO. The individuals selected to be the initial CEO and COO,
respectively, effective as of the date of this Agreement, are named on Exhibit
B, and KT, by its execution hereunder, hereby consents to the selection of such
individuals.
3.02 Services to be Performed by the Manager. In accordance with the
---------------------------------------
objectives of any Annual Plan adopted pursuant to Section 3.04, and subject to
the limitations of any such Annual Plan and to the provisions of this Agreement,
the Manager shall have the duty and is hereby granted authority to perform, or
cause to be performed, such services as are reasonably required for the proper
and efficient operation and management of the Newspapers, on behalf of and for
the benefit of KT and its stockholders including, without limitation, the
following:
(i) The Manager shall determine, establish, and maintain
operating policies, standards of operation, quality of publication,
and any other matters affecting customer relations and all phases of
promotion and publicity.
(ii) The Manager shall have the authority to act on behalf of KT
with respect to all action required or permitted to be taken by KT
under the Joint Operating Agreement.
(iii) The Manager shall, consistent with the Annual Plan, make
any and all purchases of equipment, supplies, and services required
for the Newspapers.
-3-
(iv) The Manager shall, consistent with the Annual Plan, enter
into such contracts for the furnishing of utilities, maintenance, and
other services to the Newspapers as the Manager reasonably deems
necessary or desirable for the proper operation of the Newspapers,
provided that any one contract shall not exceed $60,000, or that such
contracts shall not, in the aggregate, exceed $300,000.
(v) The Manager shall perform, or cause to be performed, all such
administrative functions as are necessary for the efficient and
continued operation of the businesses operated by the Newspapers,
including the making of all payments, taxes, fees, charges, royalties,
and other levies as shall be necessary to comply with regulatory or
other requirements.
(vi) The Manager shall, subject to the approval of the Board and
Section 3.01(b), establish and maintain a personnel program, which
will include:
(A) selection, recruitment, employment, promotion,
supervision, and termination of employees for the
Newspapers;
(B) training of employees for the Newspapers; and
(C) establishment and maintenance of employee policies
and procedures.
(vii) The Manager shall cooperate in assisting KT in the
preparation of and filing of all payroll tax reports and shall timely
make payment of all withholding and other payroll taxes and FICA
deposits from the Agency Accounts on behalf and in the name of KT and
its subsidiaries.
(viii) The Manager shall take out, or cause to be taken out, on
behalf of KT and its subsidiaries the insurance described in Article
IV.
(ix) The Manager shall maintain full and complete books of
account and accurate business records reflecting the results of
operations of the Newspapers, including all sums received (including
the person or entity making payment), and all bills paid and other
disbursements made, with respect to the Newspapers; such records shall
be maintained on a current basis, and a monthly summary of such
records, reasonably acceptable in form to KT, shall be furnished to
KT; and such records may be examined by authorized representatives of
KT at all reasonable times.
(x) The Manager shall retain such records as are required by
statute or by any governmental agency with jurisdiction over KT and
its subsidiaries or as
-4-
reasonably required by the business and shall deliver all records to
KT upon termination of this Agreement.
(xi) The Manager shall conduct periodic internal audits of the
Newspapers for the purpose of verifying compliance with financial and
operational policies and procedures.
(xii) Promptly after the end of each fiscal year, the Manager
shall cause the books and records reflecting the operations of the
Newspapers to be audited by an independent certified public accounting
firm selected by the Board. Within 90 days after the end of each
fiscal year, such accounting firm shall render to KT audited financial
statements, accompanied by an opinion thereon.
(xiii) The Manager shall have the authority to institute any and
all legal actions or proceedings arising out of the ordinary course
of the business carried on by the Newspapers, including any and all
actions or proceedings which the Manager deems necessary to (A)
collect charges or other income from the Newspapers, (B) cancel or
terminate any lease, license, or subscription agreement, and (C)
support the Newspapers' news gathering functions, including actions
seeking to access documents and proceedings and to protect the First
Amendment rights of the Newspapers, provided, in each case, that the
amount at issue does not exceed $100,000.
(xiv) The manager shall have the authority to compromise or to
abandon, or to refuse to compromise or to abandon, any claim for libel
or related causes of action, provided that the total financial risk to
KT from any such decision does not exceed $250,000.
(xv) Subject to the provisions of Section 3.03, the Manager shall
supervise and administer all other activities incidental to the
operation of the Newspapers.
(xvi) The Manager shall, from time to time upon the reasonable
request of TCI, (A) make its officers and employees available to TCI
for consultation on matters relating to strategic opportunities among
the Newspapers, KT, TCI and any of their respective Affiliates, and
(B) assist TCI and its Affiliates in developing such opportunities,
provided that the provision of such services do not require the
Manager to incur any expense which TCI (or such Affiliate) has not
agreed to reimburse.
(xvii) The Manager shall carry out its responsibilities under
this Agreement in a businesslike, efficient, competent, economic, and
professional
-5-
manner, in full compliance with all applicable legal, contractual, and
insurance requirements.
Notwithstanding anything to the contrary contained in this Agreement, it is
expressly acknowledged and agreed that the Manager shall have sole authority and
discretion with respect to the news and editorial policies established and
implemented by the Newspapers.
3.03 Limitations on the Manager's Authority.
--------------------------------------
Notwithstanding any other provision to the contrary contained herein, the
Manager shall not take any action which exceeds the limited grant of authority
provided herein. Without limiting the generality of the foregoing, the Manager
shall not, without the consent of the Board:
(i) Make any expenditures (which have not been approved in
connection with the Board's approval of the Annual Plan) which exceed
$100,000 for any one item or $250,000 in the aggregate (or such
greater or lesser amounts as may from time to time be fixed by the
Board).
(ii) Make any disposition, pledge, or encumbrance of any KT
Assets or any assets of any subsidiary of KT having a value in excess
of $50,000 or such greater or lesser amount as may from time to time
be fixed by the Board.
(iii) Make any arrangement relating to the creation or
incurrence of any indebtedness or other liability (including
contingent liabilities pursuant to guarantees or otherwise) of KT or
any subsidiary thereof for borrowed money (other than borrowings under
existing credit facilities made in accordance with the Annual Plan);
grant any security for any of the unsecured indebtedness for borrowed
money of KT or any subsidiary thereof or provide any additional
security for any of their respective secured indebtedness for borrowed
money or grant any security for the payment of the purchase price of
any property (other than purchase money security interests attaching
only to the property so acquired).
(iv) Make any commitments on behalf of KT or any subsidiary
thereof to specific projects other than as provided in the Annual
Plan.
(v) Enter into any rental agreements, leases, contracts, or other
commitments on behalf of KT or any subsidiary thereof not otherwise
provided for in the Annual Plan except for agreements which do not
exceed $10,000 or, in the aggregate, $50,000.
(vi) Subject to Section 3.02 (xiv), institute, settle, or abandon
on behalf of KT or any subsidiary thereof, any legal action involving
(x) a claim or claims for monetary damages aggregating in excess of
$250,000 or such greater or lesser
-6-
amount as may from time to time be fixed by the Board, or (y) a claim
or claims against any governmental entity.
(vii) Amend, alter or modify the Joint Operating Agreement.
(viii) Expand the scope of the business conducted by the
Newspapers on the date of this Agreement to include the development or
furnishing of interactive, on-line, video or similar services.
3.04 Annual Plans.
------------
(a) The Manager shall submit to the Board the following proposed plans and
budgets (the "Annual Plan") for the Newspapers within 60 days prior to the end
of each calendar year: (i) an estimated profit and loss statement for such
ensuing year; (ii) estimates for such ensuing year, covering expenditures for:
(w) the purchase of KT Assets, (y) amounts necessary for KT to meet its
obligations under the Joint Operating Agreement, and (z) capital improvements;
and (iii) the Manager's proposed operating, marketing, and management plan for
the Newspapers. In preparing the Annual Plan, the Manager shall base its
estimates upon the most recent and reliable information then available.
(b) The Board will either approve or deny the Annual Plan within 20 days
following its receipt. Should the Board deny the Annual Plan, the Manager shall
cooperate with the Board to formulate an acceptable Annual Plan as quickly as
possible. If, notwithstanding the foregoing procedures, on January 1 of any
year, no Annual Plan has been approved by the Board for such year, then the
Annual Plan adopted for the prior year adjusted (without duplication) to reflect
increases or decreases resulting from the following events, shall govern until
such time as the Board approves a new Annual Plan:
(i) elections made under contracts by the Newspapers in the prior
year;
(ii) elections in such year or any prior year by other parties
under contracts in existence in such prior year;
(iii) the operation of escalation or de-escalation provisions in
contracts solely as a result of the passage of time or the occurrence
of events beyond the control of the Newspapers;
(iv) increases in expenses attributable to the annualized effect
of employee additions during the prior year contemplated by the Annual
Plan for the prior year;
-7-
(v) increased operating and selling, general and administrative
expenses in an amount equal to the percentage increase for the prior
year in the Consumer Price Index multiplied by the total of overhead
expenses reflected in the Annual Plan for the prior year;
(vi) decreases in revenues due, in whole or in part, to
reductions in circulation fees or other income;
(vii) the anticipated incurrence of costs during such year for
any legal, accounting and other professional fees or disbursements in
connection with events or changes not contemplated at the time of
preparation of the Annual Plan for the prior year.
(c) Upon approval of the Annual Plan (or, if the Annual Plan is not so
approved by the Board, upon the implementation of the Annual Plan established
pursuant to Section 3.04(b)), such Annual Plan shall become the Newspapers'
Annual Plan for the next succeeding fiscal year and the Manager shall take such
steps as are necessary or appropriate to implement the Annual Plan. The Manager
shall have the right and obligation to update and revise the Annual Plan from
time to time during the period covered thereby to reflect variables and events
not foreseeable at the time of preparation of the Annual Plan and not reasonably
within the control of the Manager. All such revisions shall be submitted prior
to implementation to the Board for approval.
(d) The Manager shall at all times comply with the applicable Annual Plan,
and shall not deviate therefrom in any substantial respect. Notwithstanding the
foregoing, (i) the Manager may, if it deems necessary, reallocate the amounts
budgeted therein, provided that the amount reallocated to any budgeted item
shall not exceed 10% of the amount budgeted for such item in the Annual Plan;
and (ii) the Manager shall be entitled to make additional expenditures not
authorized under the then applicable Annual Plan in case of emergencies or any
unexpected casualties, or in order to comply with any applicable legal or
insurance requirements; provided that in no such event shall such expenditures
exceed $250,000 in the aggregate per year.
3.05 Compensation. As compensation for services rendered, the Manager
------------
shall receive a management fee equal to 3% of the Net Income during the term of
this Agreement. Such compensation shall be payable on a monthly basis as
follows: following the end of each calendar month, the Manager shall submit a
statement to KT setting forth its estimate of the Net Income for such month and
the compensation due to the Manager based thereon; such compensation shall be
payable within ten days after receipt by KT of such statement. Such monthly
payments shall be adjusted as soon as practicable after the end of each fiscal
year (and after the effective date of termination if this Agreement is
terminated during a fiscal year) so that the aggregate compensation received by
the Manager for such year equals 3% of the annual Net Income reflected in the
audited financial statements of KT for such year. If such year-end adjustment
results in additional fees owing to the Manager, such additional fee shall be
paid
-8-
within ten days after the date the audited financial statements are delivered to
KT by KT's independent auditors (the "Audit Delivery Date"). If such year-end
adjustment results in a rebate owing to KT, such rebate will be paid by the
Manager within ten days after the Audit Delivery Date. If this Agreement is
terminated, such compensation shall be prorated to the date of termination.
ARTICLE IV
INSURANCE
---------
4.01 Coverage. The Manager agrees to use its best efforts to obtain
--------
and maintain at all times during the term of this Agreement, such insurance
policies, bonds, or other sureties with respect to the Newspapers, at the
expense of KT, as are required by federal, state, or local law or as are
customary in the normal course of business in the newspaper industry, including
the following:
(i) insurance on the offices or buildings of KT or any
subsidiaries thereof used in the operation of the Newspapers against
loss or damage by fire or theft and any other perils insurable under
the form of extended coverage then available; (ii) comprehensive
general liability insurance; (iii) automobile liability insurance
policies covering all owned or leased vehicles; (iv) libel insurance
in such amounts and covering such risks as are customarily carried by
entities of similar size engaged in similar businesses to that of the
Newspapers; and (v) statutory workmen's compensation benefits for
Newspapers employees.
4.02 Policies and Endorsements.
-------------------------
(a) All insurance provided for under Section 4.01 shall be effected by
policies issued by insurance companies of good reputation and of sound and
adequate financial responsibility. The Manager shall deliver certificates of
insurance with respect to all of the policies of insurance so procured,
including existing, additional, and renewal policies, to KT and its subsidiaries
and, in the case of insurance about to expire, shall deliver certificates of
insurance with respect to renewal policies to KT and its subsidiaries not less
than ten days prior to their respective dates of expiration.
(b) All policies of insurance provided for under this Article IV shall, to
the extent obtainable, have attached thereto an endorsement that such policy
shall not be canceled or materially changed without at least 30 days' prior
written notice to KT and the Manager.
4.03 Waiver of Liability. Subject to the written approval of the
-------------------
insurance companies involved, the Manager and KT and its subsidiaries hereby
waive with respect to each other, any claims for any losses, damages,
liabilities, or expenses (including attorney's fees) incurred or sustained by
them on account of damage or injury to persons or property arising out
-9-
of the ownership, operation, and maintenance of the Newspapers, to the extent
that the same are covered by the insurance required under this Article IV.
ARTICLE V
ACCOUNTS; WORKING FUNDS; RECORDS AND REPORTS
--------------------------------------------
5.01 Agency Accounts. All payments to be made in connection with the
---------------
Newspapers shall be made solely with the funds of KT and its subsidiaries, and
the Manager shall not have any responsibility to provide any funds or such
payments. Accordingly, KT and its subsidiaries shall bear all of the costs and
expenses of owning and operating the Newspapers. The Manager will maintain on
behalf of KT and its subsidiaries one or more accounts in the name of KT or a
subsidiary thereof, as the case may be (the "Agency Accounts"), at a bank or
banks selected by the Manager and approved by the Board. All payments or funds
of the Newspapers collected or received by the Manager shall promptly be
deposited in an Agency Account or Accounts. All disbursements made by the
Manager on behalf of KT or a subsidiary thereof as permitted by Section 3.02
shall (except as otherwise provided in Section 5.02) be made by checks drawn by
the Manager on the Agency Accounts. The Agency Accounts and all funds on
deposit therein shall at all times be deemed to be the property of KT or a
subsidiary thereof, as the case may be. Under no circumstances shall the
Manager deposit or be required to deposit any of its own funds in any of the
Agency Accounts. To the extent funds contained in the Agency Accounts are not,
in the sole judgment of KT, required for the discharge of existing obligations
of the Newspapers, KT shall have the right to withdraw such funds in a manner
consistent with TCI's cash management practices.
5.02 Xxxxx Cash Fund. KT authorizes the Manager to maintain a xxxxx
---------------
cash fund for routine expenditures for costs and expenses herein authorized.
Any expenditures from such fund or account may be reimbursed from an Agency
Account from time to time, but nothing contained herein shall be deemed to
modify the Manager's obligation to maintain adequate records of all such
expenditures, and total expenditures from such fund during any month shall be
subject to reasonable limits which shall be established by the Board from time
to time.
5.03 KT's Right of Inspection and Review. KT, its accountants,
-----------------------------------
attorneys, and agents shall have the right to enter the Newspapers' offices and
production facilities at all reasonable times during the term of this Agreement
for the purpose of examining or inspecting the same or examining and making
extracts of books and records of the Newspapers or for any other purpose which
KT, in its sole discretion, shall deem necessary or advisable.
ARTICLE VI
TERMINATION
-----------
6.01 Termination Rights. This Agreement may be terminated, as
------------------
provided below, upon the happening of any of the following events:
-10-
(a) At KT's option, upon the failure of the Manager to keep,
observe, or perform any material covenant, agreement, term, or
provision of this Agreement, and if any such default is not cured or
satisfied by the Manager at its sole cost and expense within a period
of 90-days after written notice thereof by KT to the Manager;
provided, however, that with respect to defaults which cannot be cured
or satisfied within such 90-day period, the Manager shall not be in
default if the Manager within such 90-day period shall have commenced
reasonable efforts to effect such cure and thereafter diligently
continues the same. Notwithstanding the foregoing, any default which
adversely affects insurance coverage of KT or any subsidiary thereof
or constitutes a breach of any of KT's or its subsidiaries, contracts
or agreements with third parties, or which violates any applicable
law, rule, or regulation of any governmental authority shall be cured
with due diligence as promptly as possible in light of the nature of
the violation and within such time period as may be specified by
notice from KT or from any such governmental authority. No cure or
satisfaction by the Manager pursuant to the foregoing shall affect the
rights of KT with respect to any damages it has suffered as a result
of any breach of this Agreement including, without limitation, the
right to indemnification provided for in Section 7.02.
(b) At KT's option, immediately and without any requirement of
notice, if the Manager is not generally paying its debts as such debts
become due, becomes insolvent, files or has filed against it a
petition for relief under the U.S. Bankruptcy Code, 11 U.S.C., Section
101 et seq. (or any similar petition under any state or federal
-- ---
insolvency law), proposes any dissolution, liquidation, financial
reorganization or recapitalization with creditors, or if a receiver,
trustee, custodian, or similar agent is appointed or takes possession
with respect to any property or business of the Manager.
(c) At the Manager's option, immediately and without any
requirement of notice, if the same events (as described in the
immediately preceding clause (b) with respect to the Manager) shall
have occurred with respect to KT.
(d) At the option of KT, if Net Income for two consecutive fiscal
years, beginning in 1999, is less than 75% of the Net Income contained
in the Annual Plan (established in accordance with Section 3.04) for
each such fiscal year.
6.02 Effect of Termination. Termination of this Agreement in
---------------------
accordance with this Article VI shall not affect the rights of the Manager or KT
with respect to any damages it has suffered as a result of any breach of this
Agreement, nor shall it affect the rights of the Manager
-11-
or KT with respect to any liabilities or claims accruing, or based upon events
occurring, prior to the date of termination.
ARTICLE VII
INDEMNIFICATION
---------------
7.01 Indemnification by KT. KT agrees to indemnify and hold the
---------------------
Manager harmless from and against any claim, demand, loss, damage, liability, or
expense (including reasonable attorneys' fees and expenses, but excluding
amounts owed by the Manager to its own employees as compensation for their
services) asserted against or incurred by the Manager arising out of or
resulting from (i) the good faith performance by the Manager of its duties and
obligations hereunder, provided that such performance is within the limitations
on the Manager's authority set forth in this Agreement and would not give rise
to a claim for indemnification by KT pursuant to Section 7.02, or (ii) any
default, breach, violation, or nonperformance by KT of this Agreement or of any
provisions contained herein.
7.02 Indemnification by the Manager. The Manager agrees to indemnify
------------------------------
and hold KT harmless from and against any claim, demand, loss, damage,
liability, or expense (including reasonable attorney's fees and expenses)
asserted against or incurred by KT and arising out of or resulting from any
default, breach, violation, or nonperformance by the Manager of this Agreement
or of any provision contained herein. Notwithstanding anything to the contrary
in this Agreement, KT agrees that the Manager shall not be liable, responsible,
or accountable in damages or otherwise to KT for any loss, damage, liability, or
expense incurred by KT for any expenditure made by the Manager in good faith in
the course of fulfilling its duties under this Agreement or in the settlement of
any claim arising out of the operation or management of the Newspapers, unless
any such expenditure is in contravention of this Agreement or any other
limitation on the Manager's authority set forth in this Agreement.
ARTICLE VIII
GENERAL
-------
8.01 Manager an Independent Contractor and Agent. The Manager shall
-------------------------------------------
serve as an independent contractor in rendering the services set forth herein
and shall not be an employee of KT. In the performance of its duties hereunder,
the Manager shall act solely as agent of KT and all debts and liabilities to
third persons incurred by the Manager on behalf of KT in accordance with this
Agreement and in the course of the operation and management of the Newspapers
shall be the debts and obligations of KT only.
8.02 Other Activities. Nothing in this Agreement shall limit or
----------------
restrict the right of the Manager or any Affiliate of the Manager, to engage in
any other business or to devote its time and attention to the management or
other aspects of any other business or to render services of any kind to any
corporation, firm, individual or association.
-12-
8.03 Notices. Except as expressly provided herein, notices and other
-------
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed (certified or registered mail, postage
prepaid, return receipt requested) or sent by facsimile, as follows:
(i) If to KT, to:
c/o Tele-Communications, Inc.
Terrace Tower II
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
With a copy (which copy shall not constitute
notice) addressed to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxx X. Xxxxxxx, Esq.
(ii) If to the Manager to:
The Salt Lake Tribune Publishing Company, LLC
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
With a copy (which copy shall not constitute
notice) addressed to:
Jones, Waldo, Xxxxxxxx & XxXxxxxxx
Xxxxx 0000
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
-13-
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
or to such other address or attention of such other person as either party shall
advise the other in writing. All notices and other communications given to a
party in accordance with the provisions of this Agreement shall be deemed to
have been given (i) three business days after the same are sent by certified or
registered mail, postage prepaid, return receipt requested, (ii) when delivered
by hand or transmitted by facsimile (confirmation of transmission received) or
(iii) one business day after the same are sent by a reliable overnight courier
service, with acknowledgment of receipt.
8.04 Amendments and Waivers. This Agreement may be amended, modified,
----------------------
or canceled, and any terms, covenants, or conditions hereof may be waived, only
by a written instrument executed by the parties hereto or, in the case of a
waiver, by the party waiving noncompliance.
8.05 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties relating to the subject matter hereof, superseding
all prior agreements or undertakings oral or written.
8.06 Binding Effect; Assignment. Except as otherwise provided herein,
--------------------------
the terms of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Notwithstanding the foregoing, the obligations of the Manager under this
Agreement are personal to the Manager, and KT is entering into this Agreement in
reliance upon the Manager's expertise and knowledge in performing the Manager's
obligations hereunder. For the foregoing reasons, the Manager shall not
voluntarily or involuntarily, directly or indirectly, assign, otherwise transfer
or delegate its obligations under this Agreement and/or assign its interest in
this Agreement to any third party without the prior written consent of the KT,
which consent may be granted or withheld in KT's sole, subjective discretion.
The foregoing restriction shall not prohibit the Manager from contracting with
approved contractors and professionals to assist the Manager in the performance
of its obligations under this Agreement. Nothing in this Agreement, whether
express or implied, shall be construed to give any person (other than (i) the
parties hereto and their permitted successors and assigns and (ii) TCI and its
Affiliates as expressly provided in Section 3.02(xv)), any legal or equitable
right, remedy or claim under or in respect of this Agreement or any covenants or
provisions contained herein.
8.07 Costs and Attorneys' Fees. In the event either party hereto
-------------------------
commences a legal proceeding to enforce any of the terms of this Agreement, the
prevailing party in such action shall have the right to recover reasonable
attorneys' fees and costs from the other party at the discretion of the court in
which such action was decided. The term "legal proceeding" shall include
appeals from a lower court judgment. The "prevailing party" shall mean the
party that
-14-
prevails in obtaining a remedy or relief which most nearly reflects the remedy
or relief which the party sought.
8.08 Severability. If any provision of this Agreement or the
------------
application thereof to any person or circumstance shall to any extent be held in
any proceeding to be invalid or unenforceable, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those to which it was held to be invalid or unenforceable, shall not be affected
thereby, and each remaining provision shall be valid and enforced to the fullest
extent permitted by law.
8.09 No Waiver. No delay on the part of any party hereto in
---------
exercising any right, power, or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party hereto of any right,
power, or privilege hereunder, nor shall any single or partial exercise of any
right, power, or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege hereunder.
8.10 Captions. Captions contained in this Agreement are inserted only
--------
as a matter of convenience and in no way define, limit, extend, or describe the
scope of this Agreement or the intent of any of its provisions.
8.11 Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of Delaware without
reference to rules governing conflicts of law.
8.12 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be considered an original and all of which
shall constitute one and the same instrument.
-15-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
XXXXXX-TRIBUNE CORPORATION
By:
-----------------------------------
Name:
Title:
THE SALT LAKE TRIBUNE
PUBLISHING COMPANY, LLC
By: , a member
-------------------------------
By:
-------------------------------------
Name:
Title:
-16-
Exhibit A
1. The Salt Lake Tribune
2. Lewiston Tribune
3. Sparks Tribune
4. Moscow Tribune
5. Xxxxxxx County Gazette
Exhibit B
Name Office
---- ------
[ ] Chief Executive Officer
[ ] Chief Operating Officer
