GUARANTY
Exhibit
10.3
GUARANTY
THIS
GENERAL
CONTINUING GUARANTY
(“Guaranty”), dated as of May 4, 2007, is executed and delivered by each
Subsidiary that is a signatory hereto and any future Material 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 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,
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.
“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, 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.
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.
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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.
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.
(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).
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(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.
(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, 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
|
|
0000
X Xxxxxx
|
|
Xxxxxxxxxx,
XX 00000
|
|
Attention: Xxxxxx
Xxxxxxxx
|
|
Facsimile: (000)
000-0000
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With
a
copy
to: Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx
000
Xxxx
Xxxx Xxxx
Xxxx
Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx
Xxxxxx, Esq.
Facsimile: (000)
000-0000
If
to
Beneficiaries:
Bank of America, N.A.
|
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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Mayer,
Brown, Xxxx & Maw LLP
|
|
000
Xxxxx Xxxxx Xxxxxx
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|
00xx
Xxxxx
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Xxx
Xxxxxxx, Xxxxxxxxxx 00000
|
|
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.
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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.
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.
5
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.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Chief
Financial Officer
|
EAST
COAST NEWSPAPERS, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President and Assistant Secretary
|
THE
NEWS AND OBSERVER PUBLISHING COMPANY
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President and Assistant Secretary
|
TACOMA
NEWS, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President and Assistant Secretary
|
SAN
XXXX OBISPO TRIBUNE, LLC
By:
The McClatchy Company
its Sole Member
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
Xxxxxxxxxx
Title: Vice
President, Finance and Chief Financial
Officer
|
6
MCCLATCHY
MANAGEMENT SERVICES, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: President
|
MIAMI
HERALD MEDIA COMPANY
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
MACON
TELEGRAPH PUBLISHING COMPANY
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
COLUMBUS
LEDGER ENQUIRER, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
GULF
PUBLISHING COMPANY, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
THE
BRADENTON HERALD, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
7
SUN
PUBLISHING COMPANY, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
NITTANY
PRINTING AND PUBLISHING COMPANY
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
COLUMBIA
STATE, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
THE
CHARLOTTE OBSERVER PUBLISHING COMPANY
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
WICHITA
EAGLE AND BEACON PUBLISHING COMPANY
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
PACIFIC
NORTHWEST PUBLISHING COMPANY, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Executive
Vice President and Assistant
Corporate Secretary
|
8
LEXINGTON
H-L SERVICES, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President and Assistant Secretary
|
CYPRESS
MEDIA, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
OAK
STREET REDEVELOPMENT CORPORATION
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
CYPRESS
MEDIA, LLC.
By:
CYPRESS MEDIA, INC.,
its Sole member
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
QUAD
COUNTY PUBLISHING, INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
9
STAR-TELEGRAM
OPERATING, LTD.
By:
CYPRESS MEDIA, LLC,
its
General Partner
By:
CYPRESS MEDIA, INC.
its
Sole Member
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
MCCLATCHY
U.S.A., INC.
/s/
Xxxxxxx X. Xxxxxxxxxx
|
Name: Xxxxxxx
X. Xxxxxxxxxx
Title: Vice
President, Assistant Secretary and
Assistant
Treasurer
|
BANK
OF AMERICA, N.A. as Administrative Agent.
/s/
Xxx Xxxx
|
Name:
Xxx Xxxx
Title:
Vice President
|
10