FIRST AMENDMENT TO JOINT OPERATING AGREEMENT
This FIRST AMENDMENT TO JOINT OPERATING AGREEMENT (this "Amendment") is
dated January 22, 2001, by and among The Denver Post Corporation, a Delaware
corporation ("Denver Post"), Eastern Colorado Production Facilities, Inc., a
Delaware corporation ("Eastern Colorado" and together with Denver Post, the
"Post Entities"), Denver Newspaper Agency LLP, a Delaware limited liability
partnership (the "LLP") and The Denver Publishing Company, a Colorado
corporation ("Denver Publishing").
RECITALS
WHEREAS, the Post Entities, Denver Post Production Facilities LLC, a
Delaware limited liability company (the "LLC"), and Denver Publishing previously
entered into that certain Joint Operating Agreement (the "Original Agreement"),
dated as of May 11, 2000, pursuant to which the parties agreed to combine
certain newspaper properties into a single business operation in the form of a
Delaware limited liability company;
WHEREAS, the LLC has been converted into a Delaware limited liability
partnership, and in connection therewith, changed its name to "The Denver
Newspaper Agency LLP"; and
WHEREAS, the parties now desire to amend the Original Agreement to reflect
that the business operations described therein shall be conducted in the form of
a Delaware limited liability partnership and not a Delaware limited liability
company, and to make certain changes as set forth herein.
NOW, THEREFORE, in consideration of the Original Agreement and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. AMENDMENT.
(a) The Original Agreement is hereby amended by (i) substituting
"The Denver Newspaper Agency LLP, a Delaware limited liability
partnership" for any and all references to "Denver Post Production
Facilities LLC, a Delaware limited liability company," (ii) substituting
"the LLP" for any and all references to "the LLC" and (iii) removing any
and all references to the LLC changing its name to "The Denver Newspaper
Agency LLP." This Section 1(a) is intended to reflect in the Original
Agreement the conversion of Denver Post Production Facilities LLC into
Denver Newspaper Agency LLP and, notwithstanding anything else to the
contrary in this Section 1(a), shall be applied consistently with such
intent.
(b) The Original Agreement is hereby amended by adding the clause ",
as amended by that certain First Amendment to Contribution and Sale
Agreement, dated January 22, 2001, by and among the Post Entities, Denver
Publishing, and the LLP," after any reference therein to "The Denver
Newspaper Agency Contribution and Sale Agreement."
(c) The Original Agreement is hereby amended by deleting all
references to "Limited Liability Company Operating Agreement" and
replacing such references with "Limited Liability Partnership Agreement."
(d) The Original Agreement is hereby amended by deleting in its
entirety the form of Denver Newspaper Agency Limited Liability Company
Operating Agreement attached as Exhibit B to the Original Agreement and
replacing such Exhibit B with the form of Denver Newspaper Agency Limited
Liability Partnership Agreement attached as Exhibit A hereto.
(e) The Original Agreement is hereby amended by deleting Section
1.13 in its entirety and replacing it with the following:
"1.13 LIMITATION ON ASSUMPTION OF LIABILITIES. On the
Effective Date, the LLP 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 LLP 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 LLP 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 LLP 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 LLP 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 LLP as of
the Effective Date, 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 LLP as of the
Effective Date, and any current liabilities in the nature of
accounts, payable or other accrued liabilities; provided, however,
the current liabilities shall exclude (i) the current portion of the
capital leases relating to the respective operations of THE DENVER
POST and DENVER ROCKY MOUNTAIN NEWS and (ii) the unfulfilled portion
of the prepaid subscription liabilities for each of THE DENVER POST
and DENVER ROCKY MOUNTAIN NEWS, and, thus, each shall not be
included in the term "Excluded Liabilities".
Denver Post and Denver Publishing, respectively, shall
indemnify and hold the other party and the LLP 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 LLP as of the Effective Date pursuant to this
Agreement or The Denver Newspaper Agency Contribution and Sale
Agreement."
(f) The Original Agreement is hereby amended by deleting Exhibit C
and Exhibit D in their entirety and replacing them with Exhibit B attached
hereto, with respect to Exhibit C in the Original Agreement, and Exhibit C
attached hereto, with respect to Exhibit D in the Original Agreement.
(g) Section 1.6(d) of the Original Agreement is hereby amended by
(i) deleting the word "and" immediately before clause (d) of such Section
1.6(d), and (ii) adding the following language before the period at the
end of such clause (d) of Section 1.6(d): "and (e) an amount equal to the
Excluded Payables (as such term is defined in The Denver Newspaper Agency
Limited Liability Partnership Agreement) shall be treated as if such
Excluded Payables had been assumed by the LLP for all purposes of this
Section 1.6."
2. REPRESENTATIONS AND WARRANTIES. Each of the parties hereto represents
and warrants to each of the other parties hereto that the following statements
are true and correct as of the date hereof:
(a) Such party has all requisite corporate or limited liability
company power and authority to execute and deliver this Amendment; and
(b) The execution and delivery of this Amendment will not conflict
with, violate, or result in the breach of any term or provision of, or
immediately or with the giving of notice, the passage of time, or both,
constitute a default or event of default under any agreement, indenture,
deed of trust, mortgage, instrument, order, law, decree or regulation to
which such person is a party.
3. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts,
and each counterpart hereof shall be deemed to be an original instrument,
but all such counterparts shall constitute but one Agreement.
(b) This Amendment shall bind and inure to the benefit of the
parties hereto, and their respective successors and assigns.
(c) This Amendment shall be governed by and construed and
interpreted in accordance with the substantive laws of the State of
Delaware.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date and year first written above.
THE DENVER POST CORPORATION
By: /S/ XXXXXX X. XXXXXXX, XX
--------------------------------------
Name: Xxxxxx X. Xxxxxxx, XX
Title: Executive Vice President and
Chief Financial Officer
EASTERN COLORADO PRODUCTION
FACILITIES, INC.
By: /S/ XXXXXX X. XXXXXXX, XX
--------------------------------------
Name: Xxxxxx X. Xxxxxxx, XX
Title: Executive Vice President and
Chief Financial Officer
DENVER NEWSPAPER AGENCY LLP
By: The Denver Post Corporation
By: /S/ XXXXXX X. XXXXXXX, XX
---------------------------------
Name: Xxxxxx X. Xxxxxxx, XX
Title: Executive Vice President and
Chief Financial Officer
By: The Denver Publishing Company
By: /S/ XXXXXXX X. XXXXXXX
---------------------------------
Name: XXXXXXX X. XXXXXXX
Title: V.P. - FINANCE
THE DENVER PUBLISHING COMPANY
By: /S/ XXXXXXX X. XXXXXXX
---------------------------------
Name: XXXXXXX X. XXXXXXX
Title: V.P. - FINANCE
