Exhibit 10.3 - Amended and Restated Subsidiaries
Guaranty
EXHIBIT G
AMENDED AND RESTATED
SUBSIDIARIES GUARANTY
AMENDED AND RESTATED SUBSIDIARIES
GUARANTY (as amended, modified, restated and/or supplemented from
time to time, this “ Guaranty ”), dated as of
December 21, 2005, made by and among each of the undersigned
guarantors (each, a “ Guarantor ” and, together
with any other entity that becomes a guarantor hereunder pursuant
to Section 22 hereof, collectively, the “
Guarantors ”) in favor of Deutsche Bank Trust Company
Americas, as Administrative Agent (together with any successor
administrative agent, the “ Administrative Agent
”), for the benefit of the Secured Creditors (as defined
below). Except as otherwise defined herein, all capitalized terms
used herein and defined in the Credit Agreement (as defined below)
shall be used herein as therein defined.
W I T N E S
S E T H :
WHEREAS, Lee Enterprises,
Incorporated (the “ Borrower ”), the
lenders from time to time party thereto (the “ Lenders
”), Deutsche Bank Securities Inc. and SunTrust Capital
Markets, Inc., as Joint Lead Arrangers, Deutsche Bank Securities
Inc., as Book Running Manager, SunTrust Bank, as Syndication Agent,
Bank of America, N.A., The Bank of New York and The Bank of
Tokyo-Mitsubishi, Ltd., Chicago Branch, as Co-Documentation Agents,
and the Administrative Agent have entered into an Amended and
Restated Credit Agreement, dated as of December 21, 2005 (as
amended, modified, restated and/or supplemented from time to time,
the “ Credit Agreement ”), providing for the
making and continuation of Loans to, and the issuance and
maintenance of, and participation in, Letters of Credit for the
account of, the Borrower, all as contemplated therein (the Lenders,
each Issuing Lender, the Administrative Agent, the Collateral Agent
and each other Agent are herein called the “ Lender
Creditors ”);
WHEREAS, the Borrower and/or one or
more of its Qualified Wholly-Owned Domestic Subsidiaries have
heretofore entered into, and/or may at any time and from time to
time after the date hereof enter into, one or more Interest Rate
Protection Agreements and/or Other Hedging Agreements with one or
more Lenders or any affiliate thereof (each such Lender or
affiliate, even if the respective Lender subsequently ceases to be
a Lender under the Credit Agreement for any reason, together with
such Lender’s or affiliate’s successors and assigns, if
any, collectively, the “ Other Creditors ” and,
together with the Lender Creditors, the “ Secured
Creditors ”; and with each such Interest Rate Protection
Agreement and/or Other Hedging Agreement with an Other Creditor
being herein called a “ Secured Hedging Agreement
”);
WHEREAS, each Guarantor is a direct
or indirect Subsidiary of the Borrower;
WHEREAS, the Guarantors have
heretofore entered into a Subsidiaries Guaranty, dated as of
June 3, 2005 (as amended, restated, modified and/or
supplemented to, but not including, the date hereof, the “
Original Subsidiaries Guaranty ”);
WHEREAS, it is a condition precedent
to the making and continuation of Loans to the Borrower and the
issuance and maintenance of, and participation in, Letters of
Credit for the account of the Borrower under the Credit Agreement
and to the Other Creditors entering into and maintaining Secured
Hedging Agreements that each Guarantor shall have executed and
delivered to the Administrative Agent this Guaranty; and
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Page 2
WHEREAS, each Guarantor will obtain
benefits from the incurrence and continuation of Loans by the
Borrower and the issuance and maintenance of, and participation in,
Letters of Credit for the account of the Borrower under the Credit
Agreement and the entering into and maintaining by the Borrower
and/or one or more of its Qualified Wholly-Owned Domestic
Subsidiaries of Secured Hedging Agreements and, accordingly,
desires to execute this Guaranty in order to satisfy the condition
described in the preceding paragraph and to induce the Lenders to
make and continue Loans to the Borrower and issue, maintain, and/or
participate in, Letters of Credit for the account of the Borrower
and the Other Creditors to maintain and/or enter into Secured
Hedging Agreements with the Borrower and/or one or more of its
Qualified Wholly-Owned Domestic Subsidiaries;
WHEREAS, the Guarantors desire to
amend and restate the Original Subsidiaries Guaranty in the form of
this Guaranty;
NOW, THEREFORE, in consideration of
the foregoing and other benefits accruing to each Guarantor, the
receipt and sufficiency of which are hereby acknowledged, each
Guarantor hereby makes the following representations and warranties
to the Administrative Agent for the benefit of the Secured
Creditors and hereby covenants and agrees with each other Guarantor
and the Administrative Agent for the benefit of the Secured
Creditors as follows:
1. GUARANTY
. (a) Each Guarantor, jointly and severally, irrevocably,
absolutely and unconditionally guarantees as a primary obligor and
not merely as surety:
(i) to the Lender Creditors the
full and prompt payment when due (whether at the stated maturity,
by required prepayment, declaration, acceleration, demand or
otherwise) of (x) the principal of, premium, if any, and
interest on the Notes issued by, and the Loans made to, the
Borrower under the Credit Agreement, and all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit
and (y) all other obligations (including, without limitation,
obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due),
liabilities and indebtedness owing by the Borrower to the Lender
Creditors under each Credit Document to which the Borrower is a
party (including, without limitation, indemnities, Fees and
interest thereon (including, without limitation, any interest
accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided for in the
Credit Agreement, whether or not such interest is an allowed claim
in any such proceeding)), whether now existing or hereafter
incurred under, arising out of or in connection with each such
Credit Document and the due performance and compliance by the
Borrower with all of the terms, conditions, covenants and
agreements contained in all such Credit Documents (all such
principal, premium, interest, liabilities, indebtedness and
obligations under this clause (i), except to the extent consisting
of obligations or liabilities with respect to Secured Hedging
Agreements, being herein collectively called the “ Credit
Document Obligations ”); and
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(ii) to each Other Creditor the
full and prompt payment when due (whether at the stated maturity,
by required prepayment, declaration, acceleration, demand or
otherwise) of all obligations (including, without limitation,
obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due),
liabilities and indebtedness (including, without limitation, any
interest accruing after the commencement of any bankruptcy,
insolvency, receivership or similar proceeding at the rate provided
for in the respective Secured Hedging Agreements, whether or not
such interest is an allowed claim in any such proceeding) owing by
the Borrower and each other Guaranteed Party (as defined below)
under each Secured Hedging Agreement to which it is a party,
whether now in existence or hereafter arising, and the due
performance and compliance by the Borrower and each such other
Guaranteed Party with all of the terms, conditions, covenants and
agreements contained therein (all such obligations, liabilities and
indebtedness being herein collectively called the “ Other
Obligations ” and, together with the Credit Document
Obligations are herein collectively called the “
Guaranteed Obligations ”).
As used herein, the term “
Guaranteed Party ” shall mean the Borrower and each
Qualified Wholly-Owned Domestic Subsidiary of the Borrower party to
any Secured Hedging Agreement. Each Guarantor understands, agrees
and confirms that the Secured Creditors may enforce this Guaranty
up to the full amount of the Guaranteed Obligations against such
Guarantor without proceeding against any other Guarantor, the
Borrower or any other Guaranteed Party, or against any security for
the Guaranteed Obligations, or under any other guaranty covering
all or a portion of the Guaranteed Obligations. This Guaranty is a
guaranty of prompt payment and performance and not of
collection.
(b) Additionally, each
Guarantor, jointly and severally, unconditionally, absolutely and
irrevocably, guarantees the payment of any and all Guaranteed
Obligations whether or not due or payable by the Borrower or any
other Guaranteed Party upon the occurrence in respect of the
Borrower or any other Guaranteed Party of any of the events
specified in Section 11.05 of the Credit Agreement, and
unconditionally, absolutely and irrevocably, jointly and severally,
promises to pay such Guaranteed Obligations to the Secured
Creditors, or order, on demand.
2. LIABILITY OF GUARANTORS
ABSOLUTE . The liability of each Guarantor hereunder is
primary, absolute, joint and several, and unconditional and is
exclusive and independent of any security for or other guaranty of
the indebtedness of the Borrower or any other Guaranteed Party
whether executed by such Guarantor, any other Guarantor, any other
guarantor or by any other party, and the liability of each
Guarantor hereunder shall not be affected or impaired by any
circumstance or occurrence whatsoever, including, without
limitation: (a) any direction as to application of payment by
the Borrower, any other Guaranteed Party or any other party,
(b) any other continuing or other guaranty, undertaking or
maximum liability of a Guarantor or of any other party as to the
Guaranteed Obligations, (c) any payment on or in reduction of
any such other guaranty or undertaking, (d) any dissolution,
termination or increase, decrease or change in personnel by the
Borrower or any other Guaranteed Party, (e) the failure of the
Guarantor to receive any benefit from or as a result of its
execution, delivery and performance of this Guaranty, (f) any
payment made to any Secured Creditor on the indebtedness which any
Secured Creditor repays the Borrower or any other Guaranteed
Party
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pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such
proceeding, (g) any action or inaction by the Secured
Creditors as contemplated in Section 5 hereof or (h) any
invalidity, rescission, irregularity or unenforceability of all or
any part of the Guaranteed Obligations or of any security
therefor.
3. OBLIGATIONS OF GUARANTORS
INDEPENDENT . The obligations of each Guarantor hereunder are
independent of the obligations of any other Guarantor, any other
guarantor, the Borrower or any other Guaranteed Party, and a
separate action or actions may be brought and prosecuted against
each Guarantor whether or not action is brought against any other
Guarantor, any other guarantor, the Borrower or any other
Guaranteed Party and whether or not any other Guarantor, any other
guarantor, the Borrower or any other Guaranteed Party be joined in
any such action or actions. Each Guarantor waives (to the fullest
extent permitted by applicable law) the benefits of any statute of
limitations affecting its liability hereunder or the enforcement
thereof. Any payment by the Borrower or any other Guaranteed Party
or other circumstance which operates to toll any statute of
limitations as to the Borrower or such other Guaranteed Party shall
operate to toll the statute of limitations as to each
Guarantor.
4. WAIVERS BY GUARANTORS .
(a) Each Guarantor hereby waives (to the fullest extent
permitted by applicable law) notice of acceptance of this Guaranty
and notice of the existence, creation or incurrence of any new or
additional liability to which it may apply, and waives promptness,
diligence, presentment, demand of payment, demand for performance,
protest, notice of dishonor or nonpayment of any such liabilities,
suit or taking of other action by the Administrative Agent or any
other Secured Creditor against, and any other notice to, any party
liable thereon (including such Guarantor, any other Guarantor, any
other guarantor, the Borrower or any other Guaranteed Party) and
each Guarantor further hereby waives any and all notice of the
creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice or proof of reliance by any Secured Creditor
upon this Guaranty, and the Guaranteed Obligations shall
conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended, modified, supplemented or
waived, in reliance upon this Guaranty.
(b) Each Guarantor waives any
right to require the Secured Creditors to: (i) proceed against
the Borrower, any other Guaranteed Party, any other Guarantor, any
other guarantor of the Guaranteed Obligations or any other party;
(ii) proceed against or exhaust any security held from the
Borrower, any other Guaranteed Party, any other Guarantor, any
other guarantor of the Guaranteed Obligations or any other party;
or (iii) pursue any other remedy in the Secured
Creditors’ power whatsoever. Each Guarantor waives any
defense based on or arising out of any defense of the Borrower, any
other Guaranteed Party, any other Guarantor, any other guarantor of
the Guaranteed Obligations or any other party other than payment in
full in cash of the Guaranteed Obligations, including, without
limitation, any defense based on or arising out of the disability
of the Borrower, any other Guaranteed Party, any other Guarantor,
any other guarantor of the Guaranteed Obligations or any other
party, or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the
liability of the Borrower or any other Guaranteed Party other than
payment in full in cash of the Guaranteed Obligations. The Secured
Creditors may, at their election, foreclose on any collateral
serving as security held by the Administrative Agent, the
Collateral Agent or the other
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Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Secured
Creditors may have against the Borrower, any other Guaranteed Party
or any other party, or any security, without affecting or impairing
in any way the liability of any Guarantor hereunder except to the
extent the Guaranteed Obligations have been paid in full in cash.
Each Guarantor waives any defense arising out of any such election
by the Secured Creditors, even though such election operates to
impair or extinguish any right of reimbursement, contribution,
indemnification or subrogation or other right or remedy of such
Guarantor against the Borrower, any other Guaranteed Party, any
other guarantor of the Guaranteed Obligations or any other party or
any security.
(c) Each Guarantor has
knowledge and assumes all responsibility for being and keeping
itself informed of the Borrower’s, each other Guaranteed
Party’s and each other Guarantor’s financial condition,
affairs and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks which such Guarantor assumes and
incurs hereunder, and has adequate means to obtain from the
Borrower, each other Guaranteed Party and each other Guarantor on
an ongoing basis information relating thereto and the
Borrower’s, each other Guaranteed Party’s and each
other Guarantor’s ability to pay and perform its respective
Guaranteed Obligations, and agrees to assume the responsibility for
keeping, and to keep, so informed for so long as this Guaranty is
in effect. Each Guarantor acknowledges and agrees that (x) the
Secured Creditors shall have no obligation to investigate the
financial condition or affairs of the Borrower, any other
Guaranteed Party or any other Guarantor for the benefit of such
Guarantor nor to advise such Guarantor of any fact respecting, or
any change in, the financial condition, assets or affairs of the
Borrower, any other Guaranteed Party or any other Guarantor that
might become known to any Secured Creditor at any time, whether or
not such Secured Creditor knows or believes or has reason to know
or believe that any such fact or change is unknown to such
Guarantor, or might (or does) increase the risk of such Guarantor
as guarantor hereunder, or might (or would) affect the willingness
of such Guarantor to continue as a guarantor of the Guaranteed
Obligations hereunder and (y) the Secured Creditors shall have
no duty to advise any Guarantor of information known to them
regarding any of the aforementioned circumstances or
risks.
(d) Each Guarantor hereby
acknowledges and agrees that no Secured Creditor nor any other
Person shall be under any obligation (a) to marshal any assets
in favor of such Guarantor or in payment of any or all of the
liabilities of any Guaranteed Party under the Credit Documents or
the obligation of such Guarantor hereunder or (b) to pursue
any other remedy that such Guarantor may or may not be able to
pursue itself any right to which such Guarantor hereby
waives.
(e) Each Guarantor warrants and
agrees that each of the waivers set forth in Section 3 and in
this Section 4 is made with full knowledge of its significance
and consequences and that if any of such waivers are determined to
be contrary to any applicable law or public policy, such waivers
shall be effective only to the maximum extent permitted by
applicable law.
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5. RIGHTS OF SECURED
CREDITORS . Subject to Sections 4 and 13 hereof, any Secured
Creditor may (except as shall be required by applicable statute and
cannot be waived) at any time and from time to time without the
consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing
the obligations or liabilities of such Guarantor hereunder, upon or
without any terms or conditions and in whole or in part:
(a) change the manner, place or
terms of payment of, and/or change, increase or extend the time of
payment of, renew, increase, accelerate or alter, any of the
Guaranteed Obligations (including, without limitation, any increase
or decrease in the rate of interest thereon or the principal amount
thereof), any security therefor, or any liability incurred directly
or indirectly in respect thereof, and the guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended,
increased, accelerated, renewed or altered;
(b) take and hold security for
the payment of the Guaranteed Obligations and sell, exchange,
release, surrender, impair, realize upon or otherwise deal with in
any manner and in any order any property or other collateral by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from
exercising any rights against the Borrower, any other Guaranteed
Party, any other Credit Party, any Subsidiary thereof, any other
guarantor of the Borrower or others or otherwise act or refrain
from acting;
(d) release or substitute any
one or more endorsers, Guarantors, other guarantors, the Borrower,
any other Guaranteed Party or other obligors;
(e) settle or compromise any of
the Guaranteed Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether
due or not) of the Borrower or any other Guaranteed Party to
creditors of the Borrower or such other Guaranteed Party other than
the Secured Creditors;
(f) apply any sums by
whomsoever paid or howsoever realized to any liability or
liabilities of the Borrower or any other Guaranteed Party to the
Secured Creditors regardless of what liabilities of the Borrower or
such other Guaranteed Party remain unpaid;
(g) consent to or waive any
breach of, or any act, omission or default under, any of the
Secured Hedging Agreements, the Credit Documents or any of the
instruments or agreements referred to therein, or otherwise amend,
modify or supplement any of the Secured Hedging Agreements, the
Credit Documents or any of such other instruments or
agreements;
(h) act or fail to act in any
manner which may deprive such Guarantor of its right to subrogation
against the Borrower or any other Guaranteed Party to recover full
indemnity for any payments made pursuant to this Guaranty;
and/or
(i) take any other action or
omit to take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or
equitable discharge of such Guarantor from its liabilities under
this Guaranty (including, without limitation, any action or
omission whatsoever that might otherwise vary the risk of such
Guarantor or constitute a legal or equitable defense to or
discharge of the liabilities of a guarantor or surety or that might
otherwise limit recourse against such Guarantor).
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No invalidity, illegality, irregularity or
unenforceability of all or any part of the Guaranteed Obligations,
the Credit Documents or any other agreement or instrument relating
to the Guaranteed Obligations or of any security or guarantee
therefor shall affect, impair or be a defense to this Guaranty, and
this Guaranty shall be primary, absolute and unconditional
notwithstanding the occurrence of any event or the existence of any
other circumstances which might constitute a legal or equitable
discharge of a surety or guarantor except payment in full in cash
of the Guaranteed Obligations.
6. CONTINUING GUARANTY . This
Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or
delay on the part of any Secured Creditor in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, 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. The rights
and remedies herein expressly specified are cumulative and not
exclusive of any rights or remedies which any Secured Creditor
would otherwise have. No notice to or demand on any Guarantor in
any case shall entitle such Guarantor to any other further notice
or demand in