AMENDED AND RESTATED GUARANTY
Exhibit
10.3
AMENDED
AND RESTATED GUARANTY
THIS AMENDED AND RESTATED
GENERAL CONTINUING GUARANTY (“Guaranty”),
dated as of September 26, 2008, is executed and delivered by each Subsidiary
that is a signatory hereto and any future Subsidiary that is not a Non-Guarantor
Subsidiary (as defined in the Credit Agreement referenced below) that executes
and delivers a Joinder hereto (each a “Guarantor”
and, collectively, the “Guarantors”),
in favor of the commercial lending institutions (the “Lenders”)
from time to time party to the Credit Agreement (as hereinafter defined) and
Bank of America, N.A. (“Bank
of America”), as Administrative Agent (in such capacity, together with
any successor appointed pursuant to Section 9.06 of the Credit Agreement,
the “Administrative
Agent”) for the Lenders.
WHEREAS,
the Lenders, the Administrative Agent, the Swing Line Lender and the L/C Issuer
are parties to a Credit Agreement dated as of June 27, 2006 (said
Agreement, as amended by that certain Amendment No. 1 to Credit Agreement dated
as of March 28, 2007, that certain Amendment No. 2 to Credit Agreement dated as
of July 19, 2007, that certain Amendment No. 3 to Credit Agreement dated as of
March 28, 2008, and that certain Amendment No. 4 to Credit Agreement dated as of
September 26, 2008, and as it may hereafter be amended, supplemented, modified
or restated from time to time, being the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined) with The McClatchy Company, a Delaware
corporation (the “Borrower”);
WHEREAS,
certain of the Guarantors have previously executed a general continuing guaranty
in favor of the Lenders and Bank of America pursuant to the Credit Agreement,
and each of them now wishes to amend and restate such guaranty in its entirety
to conform to the guaranty the new Guarantors are hereby executing;
WHEREAS,
each of the Guarantors will derive substantial direct and indirect benefit from
the transactions contemplated by the Credit Agreement;
NOW,
THEREFORE, in consideration of the foregoing and in order to induce the Lenders
to make the credit extensions contemplated under the Credit Agreement, the
Guarantors hereby agree, jointly and severally, as follows:
1. Definitions
and Construction.
(a) Definitions. The
following terms, as used in this Guaranty, shall have the following
meanings:
“Bankruptcy
Code” shall mean The Bankruptcy Reform Act of 1978 (11 U.S.C.
§§101-1330), as amended or supplemented from time to time, and any successor
statute, and any and all rules issued or promulgated in connection
therewith.
“Beneficiaries”
shall mean Administrative Agent and Lenders.
“Guarantied
Obligations” shall mean the due and punctual payment of all Indebtedness
owing by Borrower.
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“Indebtedness”
shall mean any and all obligations, indebtedness, or liabilities of any kind or
character owed to Beneficiaries by Borrower and arising directly or indirectly
out of or in connection with the Credit Agreement, the Notes, or the other Loan
Documents (in each case as amended, supplemented, modified or restated from time
to time) plus all of the obligations of the Borrower or any of its Subsidiaries
under any and all Swap Contracts between the Borrower and any Lender or
Affiliate of a Lender (or any Person that was a Lender or Affiliate of a Lender
at the time such Swap Contract was executed) that hedge interest rate exposure
for Indebtedness plus all of the obligations of the Borrower or any of its
Subsidiaries under any and all treasury or cash management services (including,
without limitation, purchase cards) between the Borrower and any Lender or an
Affiliate of a Lender (or any Person that was a Lender or Affiliate of a Lender
at the time such services agreement was executed), including all such
obligations, indebtedness, or liabilities, whether for principal, interest
(including any and all interest which, but for the application of the provisions
of the Bankruptcy Code, would have accrued on such amounts), premium,
reimbursement obligations, fees, costs, expenses (including reasonable
attorneys’ fees), or indemnity obligations, whether heretofore, now, or
hereafter made, incurred, or created, whether voluntarily or involuntarily made,
incurred, or created, whether secured or unsecured (and if secured, regardless
of the nature or extent of the security), whether absolute or contingent,
liquidated or unliquidated, or determined or indeterminate, whether Borrower is
liable individually or jointly with others, and whether recovery is or hereafter
becomes barred by any statute of limitations or otherwise becomes unenforceable
for any reason whatsoever, including any act or failure to act by
Beneficiaries.
(b) Construction. Unless
the context of this Guaranty clearly requires otherwise, references to the
plural include the singular, references to the singular include the plural, the
part includes the whole, the term “including” is not limiting, and the term “or”
has the inclusive meaning represented by the phrase “and/or.” The words
“hereof,” “herein,” “hereby,” “hereunder,” and other similar terms refer to this
Guaranty as a whole and not to any particular provision of this
Guaranty. Any reference in this Guaranty to any of the following
documents includes any and all alterations, amendments, extensions,
modifications, renewals, supplements or restatements thereto or thereof, as
applicable: the Loan Documents; the Credit Agreement; this Guaranty; and the
Notes. Neither this Guaranty nor any uncertainty or ambiguity herein
shall be construed or resolved against Beneficiaries or any Guarantor, whether
under any rule of construction or otherwise. On the contrary, this
Guaranty has been reviewed by Guarantors, Beneficiaries, and their respective
counsel, and shall be construed and interpreted according to the ordinary
meaning of the words used so as to fairly accomplish the purposes and intentions
of Beneficiaries and Guarantors.
2. Guarantied
Obligations. Each Guarantor, jointly and severally, hereby
irrevocably and unconditionally guaranties to Beneficiaries, as and for its own
debt, until final and indefeasible payment thereof has been made, the due and
punctual payment of the Guarantied Obligations, in each case when and as the
same shall become due and payable, whether at maturity, by acceleration, or
otherwise; it being the intent of each Guarantor that the guaranty set forth
herein shall be a guaranty of payment and not a guaranty of collection; provided,
however,
that each Guarantor shall be liable under this Guaranty for the maximum amount
of such liability that can be incurred without rendering this Guaranty, as it
relates to such Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount.
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Each
Guarantor represents and warrants to Beneficiaries that (i) neither this
Guaranty nor any collateral security therefor has been given with an intent to
hinder, delay or defraud any creditor of such Guarantor; (ii) such Guarantor is
not engaged, or about to engage, in any business or transaction for which its
assets (other than those necessary to satisfy its obligations under this
Guaranty or those given as collateral security for such obligations) are
unreasonably small in relation to the business or transaction, nor does such
Guarantor intend to incur, or believe or reasonably should believe that it will
incur, debts beyond its ability to pay as they become due; and (iii) such
Guarantor is not insolvent at the time it gives this Guaranty, and the giving of
this Guaranty and any collateral security provided in connection herewith will
not result in such Guarantor’s becoming insolvent. Each Guarantor
hereby covenants and agrees that, as long as this Guaranty remains in effect,
such Guarantor (i) shall incur no indebtedness beyond its ability to repay the
same in full in accordance with the terms thereof; and (ii) shall not take any
action, or suffer to occur any omission, which could give rise to a claim by any
third party to set aside this Guaranty or any collateral given in connection
herewith, or in any manner impair Beneficiaries’ rights and privileges hereunder
or thereunder.
3. Continuing
Guaranty. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after prior
Guarantied Obligations have been satisfied in whole or in part. To
the maximum extent permitted by law, each Guarantor hereby waives any right to
revoke this Guaranty as to future Indebtedness. If such a revocation
is effective notwithstanding the foregoing waiver, each Guarantor acknowledges
and agrees that (a) no such revocation shall be effective until written
notice thereof has been received by Beneficiaries, (b) no such revocation
shall apply to any Guarantied Obligations in existence on such date (including
any subsequent continuation, extension, or renewal thereof, or change in the
interest rate, payment terms, or other terms and conditions thereof),
(c) no such revocation shall apply to any Guarantied Obligations made or
created after such date to the extent made or created pursuant to a legally
binding commitment of Beneficiaries in existence on the date of such revocation,
(d) no payment by any Guarantor, Borrower, or from any other source, prior
to the date of such revocation, shall reduce the maximum obligation of such
Guarantor hereunder, and (e) any payment by Borrower or from any source
other than such Guarantor subsequent to the date of such revocation shall first
be applied to that portion of the Guarantied Obligations as to which the
revocation is effective and which are not, therefore, guarantied hereunder, and
to the extent so applied shall not reduce the maximum obligations of such
Guarantor hereunder.
4. Performance
under this Guaranty. In the event that Borrower fails to make
any payment of any Guarantied Obligations on or before the due date thereof,
each Guarantor immediately shall cause such payment to be made.
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5. Primary
Obligations. This Guaranty is a primary and original
obligation of each Guarantor, is not merely the creation of a surety
relationship, and is an absolute, unconditional, and continuing guaranty of
payment and performance which shall remain in full force and effect without
respect to future changes in conditions, including any change of law or any
invalidity or irregularity with respect to the issuance of the
Notes. Each Guarantor agrees that it is directly, jointly and
severally with each other Guarantor, liable to Beneficiaries, that the
obligations of such Guarantor hereunder are independent of the obligations of
Borrower or any other Guarantor, and that a separate action may be brought
against such Guarantor, whether such action is brought against Borrower or
another Guarantor or whether Borrower or any such other Guarantor is joined in
such action. Guarantor agrees that its liability hereunder shall be
immediate and shall not be contingent upon the exercise or enforcement by
Beneficiaries of whatever remedies they may have against Borrower or any other
Guarantor, or the enforcement of any lien or realization upon any security
Beneficiaries may at any time possess. Each Guarantor agrees that any
release which may be given by Beneficiaries to Borrower or any other Guarantor
shall not release such Guarantor. Each Guarantor consents and agrees
that Beneficiaries shall be under no obligation to marshal any property or
assets of Borrower or any other Guarantor in favor of such Guarantor, or against
or in payment of any or all of the Guarantied Obligations.
6. Waivers.
(a) Each
Guarantor hereby waives: (i) notice of acceptance hereof; (ii) notice
of any loans or other financial accommodations made or extended under the Credit
Agreement, or the creation or existence of any Guarantied Obligations;
(iii) notice of the amount of the Guarantied Obligations, subject, however,
to such Guarantor’s right to make inquiry of Administrative Agent to ascertain
the amount of the Guarantied Obligations at any reasonable time;
(iv) notice of any adverse change in the financial condition of Borrower or
of any other fact that might increase such Guarantor’s risk hereunder;
(v) notice of presentment for payment, demand, protest, and notice thereof
as to the Notes or any other instrument; (vi) notice of any Default or
Event of Default under the Credit Agreement; and (vii) all other notices
(except if such notice is specifically required to be given to a Guarantor under
this Guaranty or any other Loan Document to which such Guarantor is party) and
demands to which such Guarantor might otherwise be entitled.
(b) To
the fullest extent permitted by applicable law, each Guarantor waives the right
by statute or otherwise to require Beneficiaries to institute suit against
Borrower or to exhaust any rights and remedies which Beneficiaries have or may
have against Borrower. In this regard, each Guarantor agrees that it
is bound to the payment of each and all Guarantied Obligations, whether now
existing or hereafter accruing, as fully as if such Guarantied Obligations were
directly owing to Beneficiaries by such Guarantor. Each Guarantor
further waives any defense arising by reason of any disability or other defense
(other than the defense that the Guarantied Obligations shall have been fully
and finally performed and indefeasibly paid) of Borrower or by reason of the
cessation from any cause whatsoever of the liability of Borrower in respect
thereof.
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(c) To
the maximum extent permitted by law, each Guarantor hereby waives: (i) any
rights to assert against Beneficiaries any defense (legal or equitable),
set-off, counterclaim, or claim which such Guarantor may now or at any time
hereafter have against Borrower or any other party liable to Beneficiaries;
(ii) any defense, set-off, counterclaim, or claim, of any kind or nature,
arising directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guarantied Obligations or any
security therefor; (iii) any defense arising by reason of any claim or
defense based upon an election of remedies by Beneficiaries; (iv) the
benefit of any statute of limitations affecting such Guarantor’s liability
hereunder or the enforcement thereof, and any act which shall defer or delay the
operation of any statute of limitations applicable to the Guarantied Obligations
shall similarly operate to defer or delay the operation of such statute of
limitations applicable to such Guarantor’s liability hereunder; and (v) to
the fullest extent permitted by law, any defense or benefit that may be derived
from or afforded by law which limits the liability of or exonerates guaranties
or sureties or requires Beneficiaries to exhaust remedies against the Borrower
prior to commencing any action or foreclosure against such Guarantor or its
properties including, without limitation, the benefits of California Civil Code
§§ 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845, 2848,
2849, and 2850, California Code of Civil Procedure §§ 580A, 580B, 580C, 580D,
and 726, and Chapter 2 of Title 14 of the California Civil
Code. Notwithstanding the foregoing, this Section 6(c) shall not
be deemed to waive any portion of any right of subrogation, reimbursement,
contribution or indemnification or similar right that would not be waived
pursuant to the provisions of Section 6(e).
(d) Each
Guarantor agrees that if all or a portion of the Indebtedness or this Guaranty
is at any time secured by a deed of trust or mortgage covering interests in real
property, Beneficiaries, in their sole discretion, without notice or demand and
without affecting the liability of such Guarantor under this Guaranty, may
foreclose pursuant to the terms of the Credit Agreement or otherwise the deed of
trust or mortgage and the interests in real property secured thereby by
non-judicial sale. Each Guarantor understands that the exercise by
Beneficiaries of certain rights and remedies contained in the Credit Agreement
and any such deed of trust or mortgage may affect or eliminate such Guarantor’s
right of subrogation against Borrower and that such Guarantor may therefore
incur a partially or totally non-reimbursable liability
hereunder. Nevertheless, each Guarantor hereby authorizes and
empowers Beneficiaries to exercise, in their sole discretion, any rights and
remedies, or any combination thereof, which may then be available, since it is
the intent and purpose of such Guarantor that the obligations hereunder shall be
absolute, independent and unconditional under any and all
circumstances. Notwithstanding any foreclosure of the lien of any
deed of trust or security agreement with respect to any or all of any real or
personal property secured thereby, whether by the exercise of the power of sale
contained therein, by an action for judicial foreclosure or by an acceptance of
a deed in lieu of foreclosure, each Guarantor shall remain bound under this
Guaranty including its obligation to pay any deficiency following a non-judicial
foreclosure.
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(e) (1)
Notwithstanding anything to the contrary elsewhere contained herein or in any
other Loan Document, until full and final payment of the Guaranteed Obligations,
each Guarantor hereby waives with respect to Borrower and its respective
successors and assigns (including any surety) and any other party any and all
rights at law or in equity, to subrogation, to reimbursement, to exoneration, to
contribution, to setoff or to any other rights that could accrue to a surety
against a principal, to a guarantor against a maker or obligor, to an
accommodation party against the party accommodated, or to a holder or transferee
against a maker and which such Guarantor may have or hereafter acquire against
Borrower or any other party in connection with or as a result of Borrower’s
execution, delivery and/or performance of the Credit Agreement or any other Loan
Document. Each Guarantor agrees that it shall not have or assert any
such rights against Borrower or Borrower’s successors and assigns or any other
Person (including
any surety), either directly or as an attempted setoff to any action commenced
against such Guarantor by Borrower (as borrower or in any other capacity) or any
other Person until the Guaranteed Obligations have been fully and finally repaid
to the Beneficiaries. Each Guarantor hereby acknowledges and agrees
that this waiver is intended to benefit the Beneficiaries and shall not limit or
otherwise affect any of the Borrower’s liability hereunder, under any other Loan
Document to which Borrower is a party, or the enforceability hereof or
thereof.
(2) To
the extent any waiver of subrogation contained in subparagraph (e)(1) is
unenforceable, each Guarantor shall, until the Guaranteed Obligations shall have
been paid in full and the Commitments shall have terminated and all Letters of
Credit shall have expired or been terminated or canceled, withhold exercise of
(a) any claim, right or remedy, direct or indirect, that such Guarantor now has
or may hereafter have against Borrower or any of its assets in connection with
this Guaranty or the performance by such Guarantor of its obligations hereunder,
in each case whether such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise and including without
limitation (i) any right of subrogation, reimbursement or indemnification that
such Guarantor now has or may hereafter have against Borrower, (ii) any right to
enforce, or to participate in, any claim, right or remedy that any Beneficiary
now has or may hereafter have against Borrower, and (iii) any benefit of, and
any right to participate in, any collateral or security now or hereafter held by
the Beneficiaries, and (b) any right of contribution such Guarantor may have
against any other Guarantor (including without limitation any such right of
contribution). Each Guarantor further agrees that, to the extent the
agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification such Guarantor may have against
Borrower or against any collateral or security, and any rights of contribution
Guarantor may have against any such other Guarantor, shall be junior and
subordinate to any rights the Administrative Agent or Lenders may have against
Borrower, to all right, title and interest the Beneficiaries may have in any
such collateral or security, and to any right the Beneficiaries may have against
such other Guarantor. The Administrative Agent, on behalf of Lenders,
may use, sell or dispose of any item of collateral or security as it sees fit
without regard to any subrogation rights any Guarantor may have, and upon any
such disposition or sale any rights of subrogation Guarantors may have shall
terminate. If any amount shall be paid to any Guarantor on account of
any such subrogation,
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reimbursement
or indemnification rights at any time when all Guaranteed Obligations shall not
have been paid in full, such amount shall be held in trust for the
Administrative Agent on behalf of Lenders and shall forthwith be paid over to
the Administrative Agent for the benefit of Lenders to be credited and applied
against the Guaranteed Obligations, whether matured or unmatured, in accordance
with Section 12
of this Guaranty.
7. Releases. Each
Guarantor consents and agrees that, without notice to or by such Guarantor and
without affecting or impairing the obligations of such Guarantor hereunder,
Beneficiaries may, by action or inaction, compromise or settle, extend the
period of duration or the time for the payment, or discharge the performance of,
or may refuse to, or otherwise not enforce, or may, by action or inaction,
release all or any one or more parties to, any one or more of the Credit
Agreement, the Notes, or any of the other Loan Documents or may grant other
indulgences to Borrower in respect thereof, or may amend or modify in any manner
and at any time (or from time to time) any one or more of the Credit Agreement,
the Notes, or any of the other Loan Documents, or may, by action or inaction,
release or substitute any other Guarantor, if any, of the Guarantied
Obligations, or may enforce, exchange, release, or waive, by action or inaction,
any security for the Guarantied Obligations (including any collateral) or any
other guaranty of the Guarantied Obligations, or any portion
thereof.
8. No
Election. Beneficiaries shall have the right to seek recourse
against any Guarantor to the fullest extent provided for herein and no election
by Beneficiaries to proceed in one form of action or proceeding, or against any
Guarantor or other party, or on any obligation, shall constitute a waiver of
Beneficiaries’ right to proceed in any other form of action or proceeding or
against any other Guarantor or other parties unless Beneficiaries have expressly
waived such right in writing. Specifically, but without limiting the
generality of the foregoing, no action or proceeding by Beneficiaries under any
document or instrument evidencing the Guarantied Obligations shall serve to
diminish the liability of Guarantors under this Guaranty except to the extent
that Beneficiaries finally and unconditionally shall have realized indefeasible
payment by such action or proceeding.
9. Indefeasible
Payment. The Guarantied Obligations shall not be considered
indefeasibly paid for purposes of this Guaranty unless and until all payments to
Beneficiaries are no longer subject to any right on the part of any person
whomsoever, including Borrower, Borrower as a debtor in possession, or any
trustee (whether appointed under the Bankruptcy Code or otherwise) of Borrower’s
assets to invalidate or set aside such payments or to seek to recoup the amount
of such payments or any portion thereof, or to declare same to be fraudulent or
preferential. In the event that, for any reason, all or any portion
of such payments to Beneficiaries is set aside or restored, whether voluntarily
or involuntarily, after the making thereof, the obligation or part thereof
intended to be satisfied thereby shall be revived and continued in full force
and effect as if said payment or payments had not been made and each Guarantor
shall be liable for the full amount Beneficiaries are required to repay plus any
and all costs and expenses (including attorneys’ fees) paid by Beneficiaries in
connection therewith.
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10. Financial
Condition of Borrower. Each Guarantor represents and warrants
to Beneficiaries that it is currently informed of the financial condition of
Borrower and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of the Guarantied
Obligations. Each Guarantor further represents and warrants to
Beneficiaries that it has read and understands the terms and conditions of the
Credit Agreement, the Notes, and the other Loan Documents. Each
Guarantor hereby covenants that it will continue to keep itself informed of
Borrower’s financial condition, the financial condition of other guarantors, if
any, and of all other circumstances which bear upon the risk of nonpayment or
nonperformance of the Guarantied Obligations.
11. Subordination. Each
Guarantor hereby agrees that after the occurrence and during the continuance of
an Event of Default any and all present and future indebtedness of Borrower
owing to such Guarantor shall be postponed in favor of and subordinated to
payment in full of the Guarantied Obligations. Each Guarantor agrees
that amounts paid over to Beneficiaries pursuant to the subordination provisions
of this Section 11 shall be separate and apart from, and shall not be credited
to, the liability of such Guarantor pursuant to Section 2.
12. Payments;
Application. All payment to be made hereunder by any Guarantor
shall be made in lawful money of the United States of America at the time of
payment, shall be made in immediately available funds, and shall be made without
setoff, deduction (whether for Taxes or otherwise) or
counterclaim. All payments made by any Guarantor hereunder shall be
applied as follows: first, to all reasonable costs and expenses
(including attorneys’ fees) incurred by Beneficiaries in enforcing this Guaranty
or in collecting the Guarantied Obligations; second, to all accrued and unpaid
interest, premium, if any, and fees owing to Beneficiaries constituting
Guarantied Obligations; and third, to the balance of the Guarantied
Obligations.
13. Attorneys’
Fees and Costs. Each Guarantor agrees to pay, on demand, all
reasonable attorneys’ fees and all other reasonable costs and expenses which may
be incurred by Beneficiaries in the enforcement of this Guaranty or in any way
arising out of, or consequential to the protection, assertion, or enforcement of
the Guarantied Obligations (or any security therefor), irrespective of whether
suit is brought.
14. Notices. All
notices and other communications provided to any party hereto under this
Guaranty shall be in writing or by facsimile and addressed, delivered or
transmitted to such party at its address or facsimile number set forth below or
at such other address or facsimile number as may be designated by such party in
a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by facsimile, shall be deemed given when
transmitted.
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If
to any Guarantor:
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c/o
The McClatchy Company
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0000
X Xxxxxx
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Xxxxxxxxxx,
XX 00000
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Attention: Xxxxxx
Xxxxxxxx
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Facsimile: (000)
000-0000
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8
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With
a copy to:
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Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx
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000
Xxxx Xxxx Xxxx
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Xxxx
Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx
Xxxxxx, Esq.
Facsimile: (000)
000-0000
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If
to Beneficiaries:
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Bank
of America, N.A.
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000
Xxxxx Xxxxxx, Xxxxx 00
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Xxxxxxx,
XX 00000
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Mail
Code: WA1-501-32-37
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Attention: Xxx
Xxxx
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Facsimile: (000)
000-0000
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With
a copy to:
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Xxxxx
Xxxxx LLP
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0000
Xxxxxxxx
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Xxx
Xxxx, XX 00000
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Attention: Xxxxx
X. Xxxxxxxx, Esq.
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Facsimile:
(000) 000-0000
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15. Cumulative
Remedies. No remedy under this Guaranty, under the Credit
Agreement, the Notes, or any Loan Document is intended to be exclusive of any
other remedy, but each and every remedy shall be cumulative and in addition to
any and every other remedy given under this Guaranty, under the Credit
Agreement, the Notes, or any other Loan Document, and those provided by
law. No delay or omission by Beneficiaries to exercise any right
under this Guaranty shall impair any such right nor be construed to be a waiver
thereof. No failure on the part of Beneficiaries to exercise, and no
delay in exercising, any right under this Guaranty shall operate as a waiver
thereof; nor shall any single or partial exercise of any right under this
Guaranty preclude any other or further exercise thereof or the exercise of any
other right.
16. Severability
of Provisions. Any provision of this Guaranty which is
prohibited or unenforceable under applicable law, shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
17. Entire
Agreement; Amendments. This Guaranty constitutes the entire
agreement among each Guarantor and Beneficiaries pertaining to the subject
matter contained herein. This Guaranty may not be altered, amended,
or modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by each Guarantor and
Administrative Agent. Any such alteration, amendment, modification,
waiver, or consent shall be effective only to the extent specified therein and
for the specific purpose for which given. No course of dealing and no
delay or waiver of any right or default under this Guaranty shall be deemed a
waiver of any other, similar or dissimilar, right or default or otherwise
prejudice the rights and remedies hereunder.
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18. Successors
and Assigns. Subject to the terms of the Credit Agreement,
this Guaranty shall be binding each Guarantor and its successors and assigns and
shall inure to the benefit of the successors and assigns of Beneficiaries; provided,
however,
no Guarantor shall assign this Guaranty or delegate any of its duties hereunder
without Beneficiaries’ prior written consent and any unconsented to assignment
shall be absolutely void. In the event of any assignment or other
transfer of rights by Beneficiaries, the rights and benefits herein conferred
upon Beneficiaries shall automatically extend to and be vested in such assignee
or other transferee.
19. Choice
of Law and Venue; Service of Process. THE VALIDITY OF THIS
GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF
EACH GUARANTOR AND BENEFICIARIES, SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY GUARANTOR WITH RESPECT TO THIS GUARANTY MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK,
AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, GUARANTOR ACCEPTS, FOR ITSELF
AND IN CONNECTION WITH ITS ASSETS, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE
BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY
FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS AVAILABLE.
20. Waiver
of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH
GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION,
CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO
THIS GUARANTY, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
DEALINGS OF GUARANTORS AND BENEFICIARIES WITH RESPECT TO THIS GUARANTY, OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH GUARANTOR
HEREBY AGREES THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR
PROCEEDINGS SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT
BENEFICIARIES MAY FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT OR
OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF SUCH GUARANTOR TO THE
WAIVER OF ITS RIGHT TO TRIAL BY JURY.
21. Joint
and Several Liability. The liability of the Guarantors
hereunder shall be joint and several.
10
IN
WITNESS WHEREOF, each of the undersigned has executed and delivered this
Guaranty as of the day and year first written above.
McClatchy
Newspapers, Inc.
By:
Its:
East
Coast Newspapers, Inc.
By:
Its:
The News
and Observer Publishing Company
By:
Its:
Tacoma
News, Inc.
By:
Its:
San Xxxx
Obispo Tribune, LLC
By: The
McClatchy Company,
its Sole
Member
By:
Its:
McClatchy
Management Services, Inc.
By:
Its:
Miami
Herald Media Company
By:
Its:
11
Macon
Telegraph Publishing Company
By:
Its:
Columbus
Ledger-Enquirer, Inc.
By:
Its:
Gulf
Publishing Company, Inc.
By:
Its:
The
Bradenton Herald, Inc.
By:
Its:
The Sun
Publishing Company, Inc.
By:
Its:
Nittany
Printing and Publishing Company
By:
Its:
The State
Media Company
By:
Its:
The
Charlotte Observer Publishing Company
By:
Its:
12
Wichita
Eagle and Beacon Publishing Company, Inc.
By:
Its:
Pacific
Northwest Publishing Company, Inc.
By:
Its:
Lexington
H-L Services, Inc.
By:
Its:
Cypress
Media, Inc.
By:
Its:
Cypress
Media, LLC
By: Cypress
Media, Inc.,
its Sole
Member
By:
Its:
Quad
County Publishing, Inc.
By:
Its:
Star-Telegram
Inc.
By:
Its:
McClatchy
U.S.A., Inc.
By:
Its:
13
Anchorage
Daily News, Inc.
By:
Its:
Aboard
Publishing, Inc.
By:
Its:
Keynoter
Publishing Company, Inc.
By:
Its:
Biscayne
Bay Publishing Inc.
By:
Its:
Keltatim
Publishing Company, Inc.
By:
Its:
HLB
Newspapers, Inc.
By:
Its:
Xxx’x
Summit Journal, Incorporated
By:
Its:
Xxxxxx
Publishing Company, Inc.
By:
Its:
14
Cass
County Publishing Company
By:
Its:
Newsprint
Ventures, Inc.
By:
Its:
Xxxxxxx
Paper Company
By:
Its:
McClatchy
Interactive West
By:
Its:
Bellingham
Herald Publishing, LLC.
By: Pacific
Northwest Publishing, Inc.,
its Sole
Member
By:
Its:
Idaho
Statesman Publishing, LLC
By: Pacific
Northwest Publishing, Inc.,
its Sole
Member
By:
Its:
Olympian
Publishing, LLC
By: Pacific
Northwest Publishing, Inc.,
its Sole
Member
By:
Its:
15
McClatchy
Interactive, LLC
By:
Its:
Nor-Tex
Publishing, Inc.
By:
Its:
Mail
Advertising Corporation
By:
Its:
Olympic-Cascade
Publishing, Inc.
By:
Its:
McClatchy
Investment Company
By:
Its:
16
BANK
OF AMERICA, N.A., as Administrative Agent
By:
Name:
Title:
