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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------
FORM 10-Q
(Mark One)
/x/QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended MARCH 26, 2000
OR
/ /TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________________to_______________
COMMISSION FILE NUMBER 1-14541
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PULITZER INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 43-1819711
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
900 NORTH TUCKER BOULEVARD, ST. LOUIS, MISSOURI 63101
(Address of principal executive offices)
(314) 340-8000
(Registrant's telephone number, including area code)
NO CHANGES
(Former name, former address and former fiscal year, if changed since last
report)
-------------------------------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
YES /x/ NO //
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Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
CLASS OUTSTANDING 4/30/00
--------------------------- ---------------------------
COMMON STOCK 8,011,811
CLASS B COMMON STOCK 14,117,306
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
PULITZER INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED OPERATIONS
(UNAUDITED -- IN THOUSANDS, EXCEPT EARNINGS PER SHARE DATA)
<TABLE>
<CAPTION>
First Quarter Ended
March 31,
----------------------------
2000 1999
------------ -----------
OPERATING REVENUES - NET:
<S> <C> <C>
Advertising $ 69,722 $ 61,080
Circulation 23,199 22,042
Other 12,856 11,235
------------ -----------
Total operating revenues 105,777 94,357
------------ -----------
OPERATING EXPENSES:
Operations 38,891 37,139
Selling, general and administrative 41,632 36,195
General corporate expense 1,879 1,810
Stock option cash-outs and bonuses 26,685
St. Louis Agency adjustment 6,845 5,239
Depreciation and amortization 6,509 4,009
------------ -----------
Total operating expenses 95,756 111,077
------------ -----------
Operating income (loss) 10,021 (16,720)
Interest income 5,794 2,192
Net gain on marketable securities and investments 2,082 111
Equity in losses of joint venture investment (535)
Net other expense (375) (265)
------------ -----------
INCOME (LOSS) FROM CONTINUING OPERATIONS
BEFORE PROVISION FOR INCOME TAXES 16,987 (14,682)
PROVISION (BENEFIT) FOR INCOME TAXES 7,114 (6,166)
------------ -----------
INCOME (LOSS) FROM CONTINUING OPERATIONS 9,873 (8,516)
LOSS FROM DISCONTINUED OPERATIONS,
NET OF TAX (21,449)
------------ -----------
NET INCOME (LOSS) $ 9,873 $ (29,965)
============ ===========
BASIC EARNINGS PER SHARE OF STOCK:
Income (loss) from continuing operations $ 0.45 $(0.38)
Loss from discontinued operations (0.95)
------------ -----------
Earnings (loss) per share $ 0.45 $ (1.33)
============ ===========
Weighted average number of shares outstanding 22,122 22,604
============ ===========
DILUTED EARNINGS PER SHARE OF STOCK:
Income (loss) from continuing operations $ 0.45 $ (0.38)
Loss from discontinued operations (0.95)
------------ -----------
Earnings (loss) per share $ 0.45 $ (1.33)
============ ===========
Weighted average number of shares outstanding 22,162 22,604
============ ===========
See notes to consolidated financial statements.
</TABLE>
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PULITZER INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED COMPREHENSIVE INCOME
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
First Quarter Ended
March 31,
-------------------------
2000 1999
----------- -----------
<S> <C> <C>
NET INCOME (LOSS) $9,873 $(29,965)
OTHER COMPREHENSIVE INCOME (LOSS),
NET OF TAX:
Unrealized holding losses on marketable securities
arising during the period (1,115)
Reclassification adjustment 449
----------- -----------
Net loss recognized in other comprehensive income (666)
----------- -----------
COMPREHENSIVE INCOME (LOSS) $9,207 $(29,965)
=========== ===========
</TABLE>
See notes to consolidated financial statements.
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PULITZER INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED FINANCIAL POSITION
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
-------------- --------------
ASSETS
CURRENT ASSETS:
<S> <C> <C>
Cash and cash equivalents $88,627 $106,177
Marketable securities 312,419 451,714
Trade accounts receivable (less allowance for doubtful
accounts of $2,661 and $2,362) 42,913 42,175
Inventory 4,361 5,146
Income taxes receivable 18,279
Prepaid expenses and other 19,810 11,729
-------------- --------------
Total current assets 468,130 635,220
-------------- --------------
PROPERTIES:
Land 6,118 5,611
Buildings 47,078 45,034
Machinery and equipment 118,395 107,796
Construction in progress 2,504 7,158
-------------- --------------
Total 174,095 165,599
Less accumulated depreciation 83,162 81,995
-------------- --------------
Properties - net 90,933 83,604
-------------- --------------
INTANGIBLE AND OTHER ASSETS:
Intangible assets - net of amortization 355,265 185,492
Receivable from The Herald Company 35,290 35,901
Other 37,608 38,070
-------------- --------------
Total intangible and other assets 428,163 259,463
-------------- --------------
TOTAL $987,226 $978,287
============== ==============
(Continued)
</TABLE>
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PULITZER INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED FINANCIAL POSITION
(UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
-------------- --------------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
<S> <C> <C>
Trade accounts payable $ 10,684 $ 13,771
Salaries, wages and commissions 10,849 12,481
Income taxes payable 5,672
Pension obligations 351 288
Acquisition payable 9,707 9,707
Dividends payable 3,540
Other 5,753 3,443
-------------- --------------
Total current liabilities 46,556 39,690
-------------- --------------
PENSION OBLIGATIONS 27,010 26,549
-------------- --------------
POSTRETIREMENT AND POSTEMPLOYMENT
BENEFIT OBLIGATIONS 86,664 86,902
-------------- --------------
OTHER LONG-TERM LIABILITIES 11,131 11,695
-------------- --------------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value; 100,000,000 shares authorized;
issued and outstanding - none
Common stock, $.01 par value; 100,000,000 shares authorized;
issued - 8,533,402 in 2000 and 8,513,203 in 1999 85 85
Class B common stock, convertible, $.01 par value; 100,000,000
shares authorized; issued - 14,117,306 in 2000 and 14,131,814
in 1999 141 141
Additional paid-in capital 425,737 425,451
Retained earnings 416,470 413,676
Accumulated other comprehensive loss (4,862) (4,196)
-------------- --------------
Total 837,571 835,157
Treasury stock - at cost; 527,471 shares of common stock (21,706) (21,706)
-------------- --------------
Total stockholders' equity 815,865 813,451
-------------- --------------
TOTAL $ 987,226 $ 978,287
============== ==============
(Concluded)
</TABLE>
See notes to consolidated financial statements.
5
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PULITZER INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
First Quarter Ended
March 31,
--------------------------------
2000 1999
CONTINUING OPERATIONS
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Income (loss) from continuing operations $ 9,873 $ (8,516)
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation 3,340 2,157
Amortization 3,169 1,852
Loss on sale of marketable securities 738
Changes in assets and liabilities (net of the effects of the
purchase of properties) which provided (used) cash:
Trade accounts receivable 2,111 4,129
Inventory 1,092 (4,660)
Other assets (3,702) 8,387
Trade accounts payable and other liabilities (5,946) 5,173
Income taxes 23,951 (22,295)
------------ ------------
NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES 34,626 (13,773)
------------ ------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (2,971) (3,190)
Purchase of publishing properties, net of cash acquired (180,400)
Purchases of marketable securities (15,415)
Sales of marketable securities 150,848
Investment in joint ventures and limited partnerships (1,014) (894)
Decrease in notes receivable 120 74
------------ ------------
NET CASH USED IN INVESTING ACTIVITIES (48,832) (4,010)
------------ ------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Dividends paid (3,539) (3,374)
Proceeds from exercise of stock options 2,280
Proceeds from employee stock purchase plan 195
Purchase of treasury stock (110)
------------ ------------
NET CASH USED IN FINANCING ACTIVITIES (3,344) (1,204)
------------ ------------
CASH USED BY CONTINUING OPERATIONS (17,550) (18,987)
------------ ------------
DISCONTINUED OPERATIONS
Operating activities (21,820)
Investing activities:
Capital expenditures (1,488)
Sale of assets 5,000
Financing activities:
Proceeds from issuance of long-term debt 700,000
Repayments of long-term debt (172,705)
Payment of Spin-off and Merger Transaction costs (31,272)
Payment of estimated working capital adjustment related to Merger (3,010)
------------ ------------
CASH PROVIDED BY DISCONTINUED OPERATIONS - 474,705
------------ ------------
NET (DECREASE) INCREASE IN CASH AND CASH
EQUIVALENTS (17,550) 455,718
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 106,177 110,171
------------ ------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 88,627 $ 565,889
============ ============
(Continued)
</TABLE>
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PULITZER INC. AND SUBSIDIARIES
STATEMENTS OF CONSOLIDATED CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
First Quarter Ended
March 31,
--------------------------------
2000 1999
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid (received) during the period for:
<S> <C> <C>
Interest paid $ -- $ 8,429
Interest received (7,158) (2,333)
Income taxes 258 3,231
Income tax refunds (17,094) (141)
SUPPLEMENTAL DISCLOSURE OF NONCASH INVESTING
AND FINANCING ACTIVITIES:
Divestiture of broadcasting business--decrease in Net Liabilities of
Broadcasting Business and increase in Additional Paid-in Capital $ -- $494,721
Spin-off and Merger Transaction costs--decrease in Other Assets
and decrease in Additional Paid-in Capital 4,253
Increase in Dividends Payable and decrease in Retained Earnings 3,540 3,395
Cancellation of treasury stock:
Decrease in Treasury Stock and Class B Common Stock 117
Decrease in Treasury Stock and Additional Paid-in Capital 187,966
(Concluded)
</TABLE>
See notes to consolidated financial statements.
7
<PAGE> 8
PULITZER INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
On March 18, 1999, the spin-off of the newspaper publishing and new media
businesses formerly operated by Pulitzer Publishing Company ("Old Pulitzer") was
completed with Pulitzer Inc. (the "Company") commencing operations as an
independent publicly traded publishing and new media company (the "Spin-off").
Following the Spin-off, Old Pulitzer with its remaining broadcasting business
("Broadcasting Business") was merged with and into Hearst-Argyle Television,
Inc. ("Hearst-Argyle") in exchange for the issuance to Old Pulitzer's
stockholders of 37,096,774 shares of Hearst-Argyle's Series A common stock (the
"Merger"). The Merger and Spin-off are collectively referred to as the
"Transactions."
As a result of the Transactions, the Company is the continuing entity for
financial reporting purposes. Old Pulitzer's historical basis in its newspaper
publishing and related new media assets and liabilities have been carried over
to the Company. The distribution of the net liabilities of the Broadcasting
Business has been recorded as a capital contribution to the Company. The
Transactions represent a reverse-spin transaction and, accordingly, the
Company's results of operations for periods prior to the consummation of the
Transactions are identical to the historical results previously reported by Old
Pulitzer. Results of the Company's newspaper publishing and related new media
businesses are reported as continuing operations in the statements of
consolidated operations. The results of the Broadcasting Business prior to the
Merger are reported as discontinued operations.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Interim Adjustments - In the opinion of management, the accompanying unaudited
consolidated financial statements contain all adjustments, consisting only of
normal recurring adjustments, necessary to present fairly the Company's
financial position as of March 31, 2000 and the results of operations and cash
flows for the three-month periods ended March 31, 2000 and 1999. These financial
statements should be read in conjunction with the consolidated financial
statements and related notes thereto included in the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999. Results of operations for
interim periods are not necessarily indicative of the results to be expected for
the full year.
Fiscal Year and Fiscal Quarters - The Company's fiscal year and first fiscal
quarter end on the Sunday coincident with or prior to December 31 and March 31,
respectively. For ease of presentation, the Company has used December 31 as the
year end and March 31 as the first quarter end.
Earnings Per Share of Stock - Basic earnings per share of stock is computed
using the weighted average number of common and Class B common shares
outstanding during the applicable period. Diluted earnings per share of stock is
computed using the weighted average number of common and Class B common shares
outstanding and common stock equivalents (primarily outstanding stock options).
Weighted average shares of common and Class B common stock and common stock
equivalents used in the calculation of basic and diluted earnings per share are
summarized as follows:
First Quarter Ended
March 31,
-------------------------
2000 1999
(In thousands)
Weighted average shares outstanding (Basic EPS) 22,122 22,604
Common stock equivalents 40
---------- ----------
Weighted average shares outstanding and
stock option equivalents (Diluted EPS) 22,162 22,604
========== ==========
Stock option equivalents included in the diluted earnings per share calculation
were determined using the treasury stock method. Under the treasury stock
method, outstanding stock options are dilutive when the average market price of
the Company's common stock exceeds the option price during a period. In
addition, proceeds from the assumed exercise of dilutive options along with the
related tax benefit are
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assumed to be used to repurchase common shares at the average market price of
such stock during the period.
Reclassifications - Certain reclassifications have been made to the 1999
consolidated financial statements to conform with the 2000 presentation.
3. ACQUISITION OF PROPERTIES
On January 11, 2000, the Company acquired in an asset purchase The Pantagraph, a
daily and Sunday newspaper that serves the central Illinois cities of
Bloomington and Normal, and a group of seven community newspapers known as the
Illinois Valley Press, from The Chronicle Publishing Company of San Francisco
("Chronicle") for an aggregate of $180 million. The purchase price excludes
acquisition costs and working capital, which will be settled with Chronicle
through a separate working capital adjustment. The Company funded this
acquisition with the proceeds from the sale of a portion of its investments in
marketable securities.
4. COMMITMENTS AND CONTINGENCIES
At March 31, 2000, the Company and its subsidiaries had construction and
equipment commitments of approximately $4,056,000.
The Company is an investor in one limited partnership requiring future capital
contributions. As of March 31, 2000, the Company's unfunded capital contribution
commitment related to this investment was approximately $2,116,000.
The Company and its subsidiaries are involved, from time to time, in various
claims and lawsuits incidental to the ordinary course of their businesses,
including such matters as libel, slander and defamation actions and complaints
alleging discrimination. While the results of litigation cannot be predicted,
management believes the ultimate outcome of any existing litigation will not
have a material adverse effect on the consolidated financial statements of the
Company and its subsidiaries.
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5. NEWSPAPER PUBLISHING REVENUES
The Company's newspaper publishing revenues consist of the following:
First Quarter Ended
March 31,
-----------------------
2000 1999
(In thousands)
St. Louis Post-Dispatch $ 65,014 $60,662
Star Publishing Company 14,866 14,433
Pulitzer Community Newspaper Group 25,292 18,781
Other publishing revenue 605 481
-------- -------
Total publishing revenue $105,777 $94,357
======== =======
6. SUBSEQUENT EVENT
On May 1, 2000, the Company, Pulitzer Technologies, Inc., a wholly-owned
subsidiary of the Company (together with the Company, the "Pulitzer Parties")
and The Herald Company, Inc. ("Herald") completed the transfer of their
respective interests in the assets and operations of the
St. Louis Post-Dispatch (the "Post-Dispatch") and certain related businesses to
a new joint venture, known as St. Louis Post-Dispatch LLC ("PD LLC"). The
Company will control and manage PD LLC.
Under the terms of the operating agreement governing PD LLC (the "Operating
Agreement"), the Pulitzer Parties hold a 95 percent interest in the results of
operations of PD LLC and Herald holds a 5 percent interest. Previously, under
the terms of the St. Louis Agency Agreement which governed the operations of the
Post-Dispatch since 1961, the Company and Herald generally shared its operating
profits and losses, as well as its capital expenditures, on a 50-50 basis. The
transaction will be treated as a purchase for accounting purposes.
Also on May 1, under the terms of the Operating Agreement, Herald received a
cash distribution of $306 million from PD LLC. This distribution was financed by
a $306 million loan (the "Loan") to PD LLC from a group of institutional lenders
(the "Lenders") led by Prudential Capital Group, a division of The Prudential
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Insurance Company of America. The aggregate principal amount of the Loan is
payable on April 28, 2009 and bears interest at an annual rate of 8.05 percent.
The Loan is guaranteed by the Company pursuant to a Guaranty Agreement dated as
of May 1, 2000 ("Guaranty Agreement") with the Lenders. In turn, pursuant to an
Indemnity Agreement dated as of May 1, 2000 ("Indemnity Agreement") entered
into between Herald and the Company, Herald agreed to indemnify the Company for
any payments that the Company may make under the Guaranty Agreement.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
================================================================================
Statements in this Quarterly Report on Form 10-Q concerning the Company's
business outlook or future economic performance, anticipated profitability,
revenues, expenses or other financial items, together with other statements that
are not historical facts, are "forward-looking statements" as that term is
defined under the Federal Securities Laws. Forward-looking statements are
subject to risks, uncertainties and other factors which could cause actual
results to differ materially from those stated in such statements. Such risks,
uncertainties and other factors include, but are not limited to, industry
cyclicality, the seasonal nature of the business, changes in pricing or other
actions by competitors or suppliers (including newsprint), capital or similar
requirements, and general economic conditions,any of which may impact
advertising and circulation revenues and various types of expenses, as well as
other risks detailed in the Company's filings with the Securities and Exchange
Commission including this Quarterly Report on Form 10-Q. Although the Company
believes that the expectations reflected in forward-looking statements are
reasonable, it cannot guarantee future results, levels of activity, performance
or achievements.
GENERAL
The Company was organized as a corporation in 1998 and is engaged in
newspaper publishing and related new media operations, operating the newspaper
properties operated by Old Pulitzer prior to the Spin-off. Prior to the
Spin-off, the Company was a wholly-owned subsidiary of Old Pulitzer.
The Company's operating revenues are significantly influenced by a number of
factors, including overall advertising expenditures, the appeal of newspapers in
comparison to other forms of advertising, the performance of the Company in
comparison to its competitors in specific markets, the strength of the national
economy and general economic conditions and population growth in the markets
served by the Company.
The Company's business tends to be seasonal, with peak revenues and profits
generally occurring in the fourth and, to a lesser extent, second quarters of
each year as a result of increased advertising activity during the Christmas and
spring holiday periods. The first quarter is historically the weakest quarter
for revenues and profits.
RECENT EVENTS
On January 11, 2000, the Company acquired in an asset purchase The
Pantagraph, a daily and Sunday newspaper that serves the central Illinois cities
of Bloomington and Normal, and a group of seven community newspapers known as
the Illinois Valley Press, from Chronicle for an aggregate of $180 million. The
purchase price excludes acquisition costs and working capital, which will be
settled with Chronicle through a separate working capital adjustment. The
Company funded this acquisition with the proceeds from the sale of a portion of
its investments in marketable securities.
On May 1, 2000, the Pulitzer Parties and Herald completed the transfer of
their respective interests in the assets and operations of the Post-Dispatch
and certain related businesses to PD LLC, a new joint venture. The Company
will control and manage PD LLC.
Under the terms of the Operating Agreement, the Pulitzer Parties hold a 95
percent interest in the results of operations of PD LLC and Herald holds a 5
percent interest. Previously, under the terms of the St. Louis Agency
Agreement which governed the operations of the Post-Dispatch since 1961, the
Company and Herald generally shared its operating profits and losses, as well
as its capital expenditures, on a 50-50 basis. The transaction will be treated
as a purchase for accounting purposes.
THREE MONTHS ENDED MARCH 31, 2000 COMPARED WITH 1999
Operating revenues for the first quarter of 2000 increased 12.1
percent, to $105.8 million from $94.4 million in the first quarter of 1999. The
gain primarily reflected higher advertising revenues and the contribution from
The Pantagraph, acquired in January 2000. In addition to the acquisition of The
Pantagraph in 2000, the Company sold its daily newspaper in Hamilton, Montana in
May 1999. Excluding the results of properties acquired and sold from both 2000
and 1999, revenues for the first quarter of 2000 increased 5.8 percent.
Newspaper advertising revenues increased $8.6 million, or 14.1 percent,
in the first quarter of 2000. The current year increase primarily reflected an
advertising revenue gain of 11.5 percent at the Post-Dispatch and the addition
of new advertising revenue from The Pantagraph. At the Post-Dispatch, gains were
driven by significant increases in classified and national advertising,
reflecting rate increases in January 2000 as well as a prior classified rate
increase in mid-1999. Excluding the results of properties acquired and sold from
both 2000 and 1999, advertising revenues for the first quarter increased 8.1
percent.
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Circulation revenues increased $1.2 million, or 5.2 percent, in the
first quarter of 2000. The higher circulation revenues primarily reflected the
addition of new circulation revenue from The Pantagraph.
Other publishing revenues increased $1.6 million, or 14.4 percent, in
2000, resulting primarily from the addition of new preprint revenue from The
Pantagraph, as well as higher revenues from the Company's "new media"
operations.
Operating expenses (including selling, general and administrative
expenses, general corporate expense and depreciation and amortization),
excluding the St. Louis Agency adjustment, decreased to $88.9 million for the
2000 first quarter from $105.8 million for the same period in the prior year.
The prior year expense included $26.7 million of stock option cash-out and bonus
payments to publishing employees in connection with the prior year Merger.
Excluding these Merger costs and the results of properties acquired and sold
from both 2000 and 1999, operating expenses increased 5.7 percent to $83.3
million in the 2000 first quarter. The increase on a comparable basis reflected
higher overall personnel costs of $2.5 million and higher depreciation and
amortization expense of $1 million. These expense increases were partially
offset by a decline in newsprint costs of $1.4 million, reflecting lower
newsprint prices in the current year quarter.
For the first quarter of 2000, the Company reported operating income of
$10 million compared to an operating loss of $16.7 million in the prior year
quarter. The prior year loss resulted from the Merger costs of $26.7 million.
Excluding these Merger costs from the prior year, operating income for the first
quarter of 2000 increased 0.6 percent.
Interest income for the first quarter of 2000 increased to $5.8 million
from $2.2 million in the prior year quarter. The increase reflected the inflow
of approximately $429 million of net cash in connection with the Spin-off and
Merger on March 18, 1999.
The Company reported a net gain on marketable securities and
investments of $2.1 million in the first quarter of 2000 compared with a gain of
$111,000 in 1999. The current year increase resulted from the favorable
performance of two limited partnership investments partially offset by losses
from the sale of marketable security investments.
For the first quarter of 2000, the Company reported income from
continuing operations of $9.9 million, or $0.45 per diluted share, compared to a
loss of $8.5 million, or $0.38 per diluted share, in the prior year quarter. The
prior year loss resulted from the Merger costs of $26.7 million. Excluding these
Merger costs, income from continuing operations for the first quarter of 1999
would have been $7 million, or $0.31 per diluted share, resulting in a current
year increase of 41.8 percent. This increase on a comparable basis primarily
reflected the higher interest income and limited partnership investment gains in
the current year quarter.
Fluctuations in the price of newsprint significantly impact the results
of the Company's newspaper operations, where newsprint expense typically
accounts for approximately 15 to 20 percent of total operating costs. For the
first quarter of 2000, the Company's average cost for newsprint was
approximately $515 per metric ton, compared to approximately $570 per metric ton
in the 1999 first quarter. On April 1, 2000, the Company's newsprint suppliers
increased the price of newsprint by approximately $50 per metric ton. This price
increase will begin to impact the Company's newsprint costs during the second
quarter of 2000. In the second quarter of 1999, the Company's average cost of
newsprint was approximately $520 per metric ton.
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LIQUIDITY AND CAPITAL RESOURCES
As of March 31, 2000, the Company had no outstanding debt and cash and
marketable securities of approximately $401 million compared with cash and
marketable securities of approximately $558 million as of December 31, 1999. On
January 11, 2000, the Company acquired the assets of The Pantagraph in a $180
million purchase transaction. The Company funded the Pantagraph acquisition with
the proceeds from the sale of investments in marketable securities.
On May 1, 2000, under the terms of the Operating Agreement, Herald received
a cash distribution of $306 million from PD LLC. This distribution was
financed by a $306 million loan (the "Loan") to PD LLC from the Lenders. The
aggregate principal amount of the Loan is payable on April 28, 2009 and bears
interest at an annual rate of 8.05 percent. The Loan is guaranteed by the
Company pursuant to a Guaranty Agreement with the Lenders. In turn, pursuant
to an Indemnity Agreement entered into between Herald and the Company, Herald
agreed to indemnify the Company for any payments that the Company may make
under the Guaranty Agreement.
As of March 31, 2000, commitments for capital expenditures were
approximately $4.1 million, relating to normal capital equipment replacements.
Capital expenditures to be made by the Company in fiscal 2000 are estimated to
be approximately $7 million. In addition, as of March 31, 2000, the Company had
capital contribution commitments of approximately $2.1 million related to a
limited partnership investment.
On July 16, 1999, the Company's Board of Directors approved the
repurchase of up to $50 million of its common stock in the open market. As of
March 31, 2000, 527,300 shares had been repurchased for approximately $21.7
million. On May 1, 2000, the Company announced that its Board of Directors
authorized the repurchase of an additional $50 million of its common stock. The
Company expects to repurchase the common stock in the open market over the next
12 to 24 months, depending upon price, availability and other corporate
developments.
At March 31, 2000, the Company had working capital of $421.6 million and a
current ratio of 10.1 to 1. This compares to working capital of $595.5 million
and a current ratio of 16 to 1 at December 31, 1999.
The Company generally expects to generate sufficient cash from operations
to cover ordinary capital expenditures, working capital requirements and
dividend payments.
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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT
MARKET RISK
- --------------------------------------------------------------------------------
The primary raw material used in the Company's operations is newsprint,
typically representing 15 to 20 percent of operating expenses. For the
full year of 1999, the Company consumed approximately 102,000 metric tons of
newsprint at an average cost of approximately $514 per metric ton. Historically,
newsprint has been subject to significant price fluctuations from year to year,
unrelated in many cases to general economic conditions. In the last five years,
the Company's average annual cost per ton of newsprint has varied from a low of
$514 per metric ton in 1999 to a high of $675 per metric ton in 1995. For the
first quarter of 2000, the Company's average cost of newsprint was approximately
$515 per metric ton. On April 1, 2000, the Company's newsprint suppliers
increased the price of newsprint by approximately $50 per metric ton. This
price increase will begin to impact the Company's newsprint costs during the
second quarter of 2000. The Company attempts to obtain the best price available
by combining newsprint purchases for its different newspaper locations but does
not enter into derivative contracts in an attempt to reduce the impact of year
to year price fluctuations on its consolidated newsprint expense.
As of March 31, 2000, the Company had no outstanding debt and a combined
balance of cash and marketable securities of approximately $401 million. As of
May 1, 2000, the Company has guaranteed a $306 million loan to PD LLC. See Item
2. Management's Discussion and Analysis of Financial Condition and Results of
Operations - "Liquidity and Capital Resources." The Company anticipates
funding potential newspaper acquisitions and repurchasing shares of its common
stock with a portion of its available cash and marketable securities. In the
interim, the Company's investments in marketable securities include a mixture
of short to medium-term government, corporate and asset-backed debt
obligations. These investments will expose the Company to market risks that
may cause the future value of these investments to be lower than the original
cost of such investments at the time of purchase.
15
<PAGE> 16
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
- --------------------------------------------------------------------------------
(a) The following exhibits are filed as part of this report:
10.1 St. Louis Post-Dispatch LLC Note Agreement, dated as of
May 1, 2000.
10.2 Pulitzer Inc. Guaranty Agreement, dated as of May 1,
2000.
10.3 License Agreement, dated as of May 1, 2000, by and
between Pulitzer Inc. and St. Louis Post-Dispatch LLC.
10.4 Non-Confidentiality Agreement, dated as of May 1, 2000.
27.1 Financial Data Schedule
The following exhibits are incorporated herein by reference to
the Company's Current Report on Form 8-K dated May 1, 2000,
filed with the Securities and Exchange Commission on May 2,
2000:
2.1 Joint Venture Agreement, dated as of May 1, 2000, among
Pulitzer Inc., Pulitzer Technologies, Inc., The Herald
Company, Inc. and St. Louis Post-Dispatch LLC.
2.2 Operating Agreement of St. Louis Post-Dispatch LLC,
dated as of May 1, 2000.
2.3 Indemnity Agreement, dated as of May 1, 2000, between
The Herald Company, Inc. and Pulitzer Inc.
(b) Reports on Form 8-K. The Company filed a Current Report on
Form 8-K on January 25, 2000 related to its acquisition of The
Pantagraph, a daily and Sunday newspaper located in
Bloomington, Illinois, from The Chronicle Publishing Company.
All other items of this report are not applicable for the current quarter.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PULITZER INC.
(Registrant)
Date: May 9, 2000 /s/ Ronald H. Ridgway
---------------------------------
(Ronald H. Ridgway)
Director; Senior Vice-President-
Finance
(on behalf of the Registrant and
as principal financial officer)
16
<PAGE> 17
EXHIBIT INDEX
EXHIBIT NUMBER TITLE OR DESCRIPTION
10.1 St. Louis Post-Dispatch LLC Note Agreement, dated as of
May 1, 2000.
10.2 Pulitzer Inc. Guaranty Agreement, dated as of May 1, 2000.
10.3 License Agreement, dated as of May 1, 2000, by and
between Pulitzer Inc. and St. Louis Post-Dispatch LLC.
10.4 Non-Confidentiality Agreement, dated as of May 1, 2000.
27.1 Financial Data Schedule
18
<PAGE> 1
EXHIBIT 10.1
EXECUTION VERSION
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ST. LOUIS POST-DISPATCH LLC
$306,000,000
8.05% SENIOR NOTES DUE APRIL 28, 2009
---------------
NOTE AGREEMENT
---------------
DATED AS OF MAY 1, 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
(Not Part of Agreement)
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARAGRAPH 1. AUTHORIZATION OF ISSUE OF NOTES..........................................1
1. Authorization of Issue of Notes...................................................1
PARAGRAPH 2. PURCHASE AND SALE OF NOTES...............................................1
2. Purchase and Sale of Notes........................................................1
PARAGRAPH 3. CONDITIONS OF CLOSING....................................................2
3. Conditions of Closing.............................................................2
3A. Certain Documents........................................................2
3B. Opinion of Purchaser's Special Counsel...................................4
3C. Transactions Permitted by Applicable Laws................................4
3D. Private Placement Number.................................................4
3E. Consummation of Formation/Contribution Transactions......................4
3F. Payment of Fees..........................................................4
3G. Sale to Other Purchasers.................................................5
PARAGRAPH 4. PREPAYMENTS..............................................................5
4. Preypayments......................................................................5
4A. Optional Prepayment With Yield-Maintenance Amount........................5
4B. Notice of Optional Prepayment............................................5
4C. Partial Payments Pro Rata................................................5
4D. Retirement of Notes......................................................5
PARAGRAPH 5. AFFIRMATIVE COVENANTS....................................................6
5. Affirmative Covenants.............................................................6
5A. Financial Statements.....................................................6
5B. Inspection of Properties.................................................7
5C. Covenant to Secure Notes Equally.........................................8
5D. Compliance with Laws and Regulations.....................................8
5E. Patents, Trade Marks and Trade Names.....................................8
5F. Information Required by Rule 144A........................................8
5G. Payment of Taxes and Other Claims........................................9
5H. ERISA Compliance.........................................................9
PARAGRAPH 6. NEGATIVE COVENANTS.......................................................9
6. Negative Covenants................................................................9
6A. Change of Business.......................................................9
6B. Limitation on Distributions..............................................9
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
6C. Lien, Debt and Other Restrictions.......................................10
6D. Restrictions Upon Modification of Limited Liability Company Agreement...15
6E. Limitation on Certain Restrictive Agreements............................15
PARAGRAPH 7. EVENTS OF DEFAULT.......................................................15
7. Events of Default................................................................15
7A. Acceleration............................................................15
7B. Rescission of Acceleration..............................................18
7C. Notice of Acceleration or Rescission....................................18
7D. Other Remedies..........................................................19
PARAGRAPH 8. REPRESENTATIONS, COVENANTS AND WARRANTIES...............................19
8. Representations, Covenants and Warranties........................................19
8A. Organization and Qualification; Due Authorization.......................19
8B. Financial Statements....................................................19
8C. Actions Pending.........................................................20
8D. Outstanding Debt........................................................20
8E. Title to Properties.....................................................20
8F. Conflicting Agreements and Other Matters................................20
8G. Offering of Notes.......................................................21
8H. Use of Proceeds.........................................................21
8I. ERISA...................................................................21
8J. Governmental Consent....................................................22
8K. Business; Activities....................................................22
8L. Ownership of Company....................................................22
8M. Disclosure..............................................................22
8N. Formation/Contribution Documents........................................22
8O. Solvency................................................................23
8P. Representations and Warranties in Formation/Contribution Documents......23
PARAGRAPH 9. REPRESENTATIONS OF THE PURCHASERS.......................................23
9. Representations of the Purchasers................................................23
9A. Nature of Purchase......................................................23
9B. Source of Funds.........................................................23
9C. Independent Investigation...............................................23
PARAGRAPH 10. DEFINITIONS; ACCOUNTING MATTERS.........................................24
10. Definitions; Accounting Matters..................................................24
10A. Yield-Maintenance Terms.................................................24
10B. Other Terms.............................................................25
10C. Accounting and Legal Principles, Terms and Determinations...............30
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
PARAGRAPH 11. MISCELLANEOUS...........................................................30
11. Miscellaneous....................................................................30
11A. Note Payments...........................................................30
11B. Expenses................................................................31
11C. Consent to Amendments...................................................31
11D. Form, Registration, Transfer and Exchange of Notes; Lost Notes..........32
11E. Persons Deemed Owners; Participations...................................32
11F. Survival of Representations and Warranties; Entire Agreement............33
11G. Successors and Assigns..................................................33
11H. Notices.................................................................33
11I. Payments due on Non-Business Days.......................................33
11J. Satisfaction Requirement................................................34
11K. Governing Law...........................................................34
11L. Severability............................................................34
11M. Descriptive Headings....................................................34
11N. Counterparts............................................................34
11O. Independence of Covenants...............................................34
11P. Severalty of Obligations................................................34
11Q. Consent to Jurisdiction; Waiver of Immunities...........................34
11R. Waiver of Jury Trial....................................................35
</TABLE>
PURCHASER SCHEDULE
EXHIBIT A - FORM OF NOTE
EXHIBIT B - FORM OF FUNDS DELIVERY INSTRUCTION LETTER
EXHIBIT C - FORM OF OPINION OF COUNSEL TO COMPANY AND
GUARANTOR
EXHIBIT D - FORM OF COMPLIANCE CERTIFICATE
EXHIBIT E - FORM OF SUBORDINATED INTERCOMPANY NOTE
EXHIBIT F - FORM OF GUARANTY AGREEMENT
iii
<PAGE> 5
ST. LOUIS POST-DISPATCH LLC
900 NORTH TUCKER BOULEVARD
ST. LOUIS, MISSOURI 63101
As of May 1, 2000
TO EACH OF THE PURCHASERS NAMED ON
THE ATTACHED PURCHASER SCHEDULE
$306,000,000 8.05% Senior Notes
Ladies and Gentlemen:
The undersigned, ST. LOUIS POST-DISPATCH LLC, a Delaware limited
liability company (the "COMPANY"), hereby agrees with each Purchaser as follows:
PARAGRAPH 1. AUTHORIZATION OF ISSUE OF NOTES.
1. AUTHORIZATION OF ISSUE OF NOTES. The Company will authorize the
issue of its senior guaranteed promissory notes in the aggregate principal
amount of $306,000,000, to be dated the date of issue thereof, to mature April
28, 2009, to bear interest on the unpaid balance thereof from the date thereof
until the principal thereof shall have become due and payable at the rate of
8.05% per annum and on overdue payments at the rate specified therein, and to be
substantially in the form of Exhibit A attached hereto (the "NOTES"). The term
"NOTES" as used herein shall include each Note delivered pursuant to any
provision of this Agreement and each Note delivered in substitution or exchange
for any other Note pursuant to any such provision. Capitalized terms used herein
have the meanings specified in paragraph 10.
PARAGRAPH 2. PURCHASE AND SALE OF NOTES.
2. PURCHASE AND SALE OF NOTES. The Company hereby agrees to sell to
each Purchaser and, subject to the terms and conditions herein set forth, each
Purchaser agrees to purchase from the Company Notes in the aggregate principal
amount set forth opposite such Purchaser's name on the Purchaser Schedule hereto
at 100% of such aggregate principal amount. The Company will deliver to each
Purchaser, at the offices of Baker Botts L.L.P. at 599 Lexington Avenue, New
York, New York 10022-6030, one or more Notes registered in its name, evidencing
the aggregate principal amount of Notes to be purchased by such Purchaser and in
the denomination or denominations specified in the Purchaser Schedule attached
hereto, against payment of the purchase price thereof by transfer of immediately
available funds for credit to the Company's account A/C 323 232 418 at The Chase
Manhattan Bank, New York, New York (ABA No. 021-000-021), as identified in a
written instruction of the Company, in the form of Exhibit B attached hereto,
delivered to each Purchaser on or
<PAGE> 6
before the date of closing, which shall be May 1, 2000 or any other date on or
before May 1, 2000 upon which the parties hereto may mutually agree (herein
called the "CLOSING" or the "DATE OF CLOSING").
PARAGRAPH 3. CONDITIONS OF CLOSING.
3. CONDITIONS OF CLOSING. The obligation of each Purchaser to
purchase and pay for the Notes to be purchased by it hereunder is subject to the
satisfaction, on or before the Date of Closing, of the following conditions:
3A. CERTAIN DOCUMENTS. Such Purchaser shall have received the
following, each to be dated the Date of Closing unless otherwise indicated:
(i) The Note(s) to be purchased by such Purchaser.
(ii) The Guaranty Agreement, duly executed and delivered by
the Guarantor.
(iii) A favorable opinion of Fulbright & Jaworski L.L.P.,
counsel to the Company and the Guarantor, substantially in the form of
Exhibit C attached hereto. The Company hereby directs such counsel to
deliver such opinion and agrees that the issuance and sale of any
Notes will constitute a reconfirmation of such direction.
(iv) Reliance letters in respect of any other legal opinions
delivered in connection with this Agreement, the Guaranty Agreement,
the Formation/Contribution Documents and the transactions contemplated
hereby and thereby.
(v) Copies of (a) the Certificate of Formation of the
Company, certified as of a recent date by the Secretary of State of
Delaware, and (b) the Limited Liability Company Agreement of the
Company, certified by the Secretary or an Assistant Secretary of the
Company.
(vi) Copies of (a) the Certificate of Incorporation of the
Guarantor, certified as of a recent date by the Secretary of State of
Delaware, and (b) the Bylaws of the Guarantor, certified by the
Secretary or an Assistant Secretary of the Guarantor.
(vii) Incumbency certificates signed by the Secretary or an
Assistant Secretary and one other officer of each of the Company and
the Guarantor, certifying as to the names, titles and true signatures
of the officers of the Company or the Guarantor, as applicable,
authorized to (a) sign on behalf of the Company this Agreement, the
Notes and the other documents to be delivered by the Company hereunder
or in connection with the transactions contemplated hereby, or (b)
sign on behalf of the Guarantor the Guaranty Agreement and the other
documents to be delivered by the Guarantor hereunder and thereunder or
in connection with the transactions contemplated hereby and thereby,
as applicable.
2
<PAGE> 7
(viii) A certificate of the Secretary or an Assistant
Secretary of the Guarantor (a) attaching resolutions of the Board of
Directors of the Guarantor evidencing approval (in the Guarantor's
capacity as sole managing member of the Company) of the transactions
contemplated by this Agreement and the issuance of the Notes and the
execution, delivery and performance thereof, authorizing certain
officers to execute and deliver the same, and certifying that such
resolutions were duly and validly adopted and have not since been
amended, revoked or rescinded, and (b) certifying (in the Guarantor's
capacity as sole managing member of the Company) that no dissolution
or liquidation proceedings as to the Company or any Material
Subsidiary of the Company have been commenced or are contemplated.
(ix) A certificate of the Secretary or an Assistant Secretary
of the Guarantor (a) attaching resolutions of the Board of Directors
of the Guarantor evidencing approval of the execution, delivery and
performance of the Guaranty Agreement, and authorizing certain
officers to execute and deliver the same, and certifying that such
resolutions were duly and validly adopted and have not since been
amended, revoked or rescinded, and (b) certifying that no dissolution
or liquidation proceedings as to the Guarantor or any Subsidiary of
the Guarantor (other than a Subsidiary of the Company that is not a
Material Subsidiary) have been commenced or are contemplated.
(x) An Officer's Certificate of a Responsible Officer of the
Company certifying that (a) the representations and warranties
contained in paragraph 8 are true on and as of the Date of Closing,
except to the extent of changes caused by the transactions herein
contemplated, and (b) there exists on the Date of Closing no Event of
Default or Default.
(xi) An Officer's Certificate of a Responsible Officer of the
Guarantor certifying that (a) the representations and warranties
contained in Section 3 of the Guaranty Agreement are true on and as of
the Date of Closing, except to the extent of changes caused by the
transactions herein and therein contemplated, and (b) there exists on
the Date of Closing no Guaranty Event of Default or Guaranty Default.
(xii) Corporate and tax good standing certificates as to (a)
the Company and the Guarantor, from the States of Delaware and
Missouri, and (b) each Material Subsidiary of the Company, from its
state of organization.
(xiii) A copy of each of the Formation/Contribution Documents
and the Indemnity Agreement, certified as true and complete by the
Secretary or an Assistant Secretary of the Guarantor, the terms and
conditions of which shall be in full force and effect and shall not
have been amended, modified or waived in any material respect except
with the prior written consent of such Purchaser.
(xiv) A pro forma consolidated balance sheet for the Company
and its Subsidiaries as at March 31, 2000, certified by an authorized
financial officer of the
3
<PAGE> 8
Company and reflecting the consummation of the Formation/Contribution
Transactions and the issuance of the Notes hereunder.
(xv) Such additional documents or certificates with respect
to such legal matters or corporate, limited liability company or other
proceedings related to the transactions contemplated hereby as may be
reasonably requested by such Purchaser.
3B. OPINION OF PURCHASER'S SPECIAL COUNSEL. Such Purchaser shall have
received from Baker Botts L.L.P., who are acting as special counsel for it in
connection with this transaction, a favorable opinion satisfactory to such
Purchaser as to such matters incident to the matters herein contemplated as it
may reasonably request.
3C. TRANSACTIONS PERMITTED BY APPLICABLE LAWS. The consummation of
all transactions contemplated hereby, including, without limitation, the offer
by the Company of the Notes, the purchase of and payment for the Notes to be
purchased by such Purchaser on the Date of Closing on the terms and conditions
herein provided (including the use of the proceeds of such Notes by the Company)
shall not violate any applicable law or governmental regulation (including,
without limitation, section 5 of the Securities Act or Regulation T, U or X of
the Board of Governors of the Federal Reserve System) and shall not subject such
Purchaser to any tax, penalty, liability or other onerous condition under or
pursuant to any applicable law or governmental regulation, and such Purchaser
shall have received such certificates or other evidence as such Purchaser may
request to establish compliance with this condition.
3D. PRIVATE PLACEMENT NUMBER. A Private Placement Number issued by
Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities
Valuation Office of the National Association of Insurance Commissioners) shall
have been obtained for the Notes.
3E. CONSUMMATION OF FORMATION/CONTRIBUTION TRANSACTIONS. Such
Purchaser shall have received satisfactory evidence that the
Formation/Contribution Transactions have been consummated prior to or
concurrently with the issuance of the Notes pursuant to and in accordance with
the terms and conditions of the Formation/Contribution Documents (no terms
thereof having been amended, supplemented, waived or otherwise modified in any
material respect without such Purchaser's prior written consent); all corporate,
limited liability company and other proceedings taken or to be taken in
connection with the Formation/Contribution Transactions and all documents
incident thereto shall be satisfactory in substance and form to such Purchaser;
and such Purchaser shall have received all such counterpart originals or
certified or other copies of such documents as such Purchaser may reasonably
request.
3F. PAYMENT OF FEES. The Company shall have paid (i) to each
Purchaser such fees as are due it in connection with this Agreement, including
such Purchaser's pro rata portion of the structuring fee of $150,000 (but
subject to the provisions of the letter agreement dated March 24, 2000 between
the Guarantor and The Prudential Insurance Company of America), and (ii) the
fees and expenses of Baker Botts L.L.P., Purchasers' special counsel, as set
forth
4
<PAGE> 9
in a statement to be delivered to the Company no later than one Business Day
prior to the Date of Closing.
3G. SALE TO OTHER PURCHASERS. The Company shall have sold to the
other Purchasers the Notes to be purchased by them on the Date of Closing and
shall have received payment in full therefor.
PARAGRAPH 4. PREPAYMENTS.
4. PREPAYMENTS. The Notes shall be subject to prepayment only with
respect to the optional prepayments permitted by paragraph 4A.
4A. OPTIONAL PREPAYMENT WITH YIELD-MAINTENANCE AMOUNT. The Notes
shall be subject to prepayment, in whole at any time or from time to time in
part (in a minimum principal amount of $1,000,000 and integral multiples of
$100,000) at the option of the Company, at 100% of the principal amount so
prepaid plus interest thereon to the prepayment date and the Yield-Maintenance
Amount, if any, with respect to each Note.
4B. NOTICE OF OPTIONAL PREPAYMENT. The Company shall give the holder
of each Note irrevocable written notice of any prepayment pursuant to paragraph
4A not less than 10 Business Days prior to the prepayment date (which shall be a
Business Day), specifying such prepayment date and the principal amount of the
Notes, and of the Notes held by such holder, to be prepaid on such date and
stating that such prepayment is to be made pursuant to paragraph 4A. Notice of
prepayment having been given as aforesaid, the principal amount of the Notes
specified in such notice, together with interest thereon to the prepayment date
and together with the Yield-Maintenance Amount, if any, with respect thereto,
shall become due and payable on such prepayment date. The Company shall, on or
before the day on which it gives written notice of any prepayment pursuant to
paragraph 4A, give telephonic notice of the principal amount of the Notes to be
prepaid and the prepayment date to each holder of a Note which shall have
designated a recipient of such telephonic notices in the Purchaser Schedule
attached hereto or by notice in writing to the Company; provided, that such
notice shall be given instead by telecopy to any holder which shall have elected
to receive such notices by telecopy and shall have designated a recipient of
such telecopy notices in the Purchaser Schedule attached hereto or by notice in
writing to the Company.
4C. PARTIAL PAYMENTS PRO RATA. Upon any partial prepayment of the
Notes pursuant to paragraph 4A, the principal amount so prepaid shall be
allocated to all Notes at the time outstanding in proportion to the respective
outstanding principal amounts thereof.
4D. RETIREMENT OF NOTES. The Company shall not, and shall not permit
any of its Subsidiaries or Affiliates to, prepay or otherwise retire in whole or
in part prior to their stated final maturity (other than by prepayment pursuant
to paragraph 4A or upon acceleration of such final maturity pursuant to
paragraph 7A), or purchase or otherwise acquire, directly or indirectly, Notes
held by any holder.
5
<PAGE> 10
PARAGRAPH 5. AFFIRMATIVE COVENANTS.
5. AFFIRMATIVE COVENANTS. So long as any Note shall remain unpaid,
the Company covenants as follows:
5A. FINANCIAL STATEMENTS. The Company will deliver or cause the
Guarantor to deliver to each holder in duplicate (it being understood that the
Company need not duplicate delivery by the Guarantor of the financial statements
or other items required to be delivered under Section 4.1 of the Guaranty
Agreement):
(i) as soon as practicable and in any event within 45 days
after the end of each quarterly period (other than the last quarterly
period) in each fiscal year, a consolidating and consolidated statement
of income and a consolidated statement of cash flows of the Guarantor
and its Subsidiaries (including the Company) for the period from the
beginning of the current fiscal year to the end of such quarterly
period, and a consolidating and consolidated balance sheet of the
Guarantor and its Subsidiaries (including the Company) as at the end of
such quarterly period, setting forth in each case in comparative form
figures for the corresponding period in the preceding fiscal year (if
applicable, in the case of the Company and its Subsidiaries), all in
reasonable detail and certified by an authorized financial officer of
the Guarantor, subject to changes resulting from year-end adjustments;
to the extent they include the types of statements described above and
otherwise comply with the requirements of this clause (i), such
unaudited consolidated financial statements may be in the form
incorporated in the Guarantor's reports on Form 10-Q or in other
filings with the Securities and Exchange Commission;
(ii) as soon as practicable and in any event within 90 days after
the end of each fiscal year, a consolidating and consolidated statement
of income and a consolidating and consolidated balance sheet of the
Guarantor and its Subsidiaries (including the Company) as at the end of
such year and consolidated statements of cash flows and stockholders'
equity of the Guarantor and its Subsidiaries (including the Company)
for such year, setting forth in each case in comparative form
corresponding consolidated figures from the preceding annual audit, all
in reasonable detail and satisfactory in scope to the Required
Holder(s) and, as to the consolidated statements, audited by
independent public accountants of recognized standing selected by the
Guarantor whose opinion shall be in scope and substance satisfactory to
the Required Holder(s) and, as to the consolidating statements,
certified by an authorized financial officer of the Guarantor; to the
extent they include the types of statements described above and
otherwise comply with the requirements of this clause (ii), such
audited consolidated financial statements may be in the form
incorporated in the Guarantor's annual report on Form 10-K or in other
filings with the Securities and Exchange Commission;
6
<PAGE> 11
(iii) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as the
Guarantor shall send to its stockholders and copies of all registration
statements (without exhibits) and all reports (other than reports as to
which the Guarantor shall receive confidential treatment) which the
Guarantor or any Subsidiary (including the Company) files with the
Securities and Exchange Commission (or any governmental body or agency
succeeding to the functions of the Securities and Exchange Commission);
(iv) promptly upon receipt thereof, a copy of each other report
submitted to the Guarantor or any Subsidiary (including the Company)
by independent accountants in connection with any annual, interim or
special audit made by them of the books of the Guarantor or any
Subsidiary (including the Company); and
(v) with reasonable promptness, such other information and
documents as any holder may reasonably request.
Together with each delivery of financial statements required by clauses (i) and
(ii) above, the Company will deliver to each holder a Compliance Certificate,
substantially in the form of Exhibit D attached hereto, executed on behalf of
the Company and demonstrating (with computations in reasonable detail)
compliance by the Company and its Subsidiaries with the provisions of paragraphs
6B, 6C(2), 6C(3) and 6C(4) of this Agreement and stating that there exists no
Event of Default or Default, or, if any Event of Default or Default exists,
specifying the nature and period of existence thereof and what action the
Company proposes to take with respect thereto. Together with each delivery of
financial statements required by clause (ii) above, the Company will deliver or
cause to be delivered to each holder a certificate of such accountants stating
that, in making the audit necessary for their report on such financial
statements, they have obtained no knowledge of any Event of Default or Default
or, if they have obtained knowledge of any Event of Default or Default,
specifying the nature and period of existence thereof. Such accountants,
however, shall not be liable to anyone by reason of their failure to obtain
knowledge of any Event of Default or Default which would not be disclosed in the
course of an audit conducted in accordance with generally accepted auditing
standards. The Company also covenants that immediately after any Responsible
Officer obtains knowledge of an Event of Default or Default, it will deliver to
each holder an Officer's Certificate specifying the nature and period of
existence thereof and what action the Company has taken, is taking or proposes
to take with respect thereto. Each holder is hereby authorized to deliver a copy
of any financial statement delivered to such holder pursuant to this paragraph
5A to any regulatory body having jurisdiction over such holder.
5B. INSPECTION OF PROPERTIES. The Company will permit any Person
designated by any holder in writing, at such holder's expense if no Event of
Default then exists and at the Company's expense if an Event of Default then
exists, to visit and inspect any of the properties of the Company and its
Subsidiaries, to examine the limited liability company or corporate books and
financial records of the Company and its Subsidiaries and make copies thereof or
extracts therefrom and to discuss the affairs, finances and accounts of any of
such limited liability
7
<PAGE> 12
companies or corporations with the principal officers of the Company and its
independent public accountants, all at such reasonable times and as often as
such holder may reasonably request.
5C. COVENANT TO SECURE NOTES EQUALLY. The Company will, if it or any
Subsidiary shall create or assume any Lien upon any of its property or assets,
whether now owned or hereafter acquired, other than Liens permitted by the
provisions of paragraph 6C(l) (unless prior written consent to the creation or
assumption thereof shall have been obtained pursuant to paragraph 11C), make or
cause to be made effective provision whereby the Notes will be secured by such
Lien equally and ratably with any and all other Debt thereby secured, so long as
any such other Debt shall be so secured; provided that the creation and
maintenance of such equal and ratable Lien shall not in any way limit or modify
the right of the holders of the Notes to enforce the provisions of paragraph
6C(1).
5D. COMPLIANCE WITH LAWS AND REGULATIONS. The Company will and will
cause each Subsidiary to be in material compliance with all laws and regulations
(including, but not limited to, those relating to equal employment opportunity
and employee health and safety) which are now in effect or may be legally
imposed in the future in any jurisdiction in which the Company and any
Subsidiary is doing business other than those laws and regulations which the
Company or such Subsidiary is contesting in good faith by appropriate
proceedings; provided, however, (i) the Company or such Subsidiary continues to
operate any affected business free of any requirement to escrow or sequester any
material amount of such business' profits or revenues pending resolution of such
proceedings, or (ii) any non-compliance with any law or regulation could not
reasonably be expected to have a material adverse effect on the business,
operations, property or financial or other condition of the Company and the
Subsidiaries, taken as a whole, or the ability of the Company to perform its
obligations hereunder.
5E. PATENTS, TRADE MARKS AND TRADE NAMES. The Company will and will
cause each Subsidiary to continue to own, or hold licenses for the use of, all
copyrights, franchises, licenses, marketing rights, patents, service marks,
trade marks, trade names, and rights in any of the foregoing, as in the
aggregate are necessary for the conduct of its business in the manner in which
such business is being conducted as of the date hereof except where failure to
continue to own or hold such licenses could not reasonably be expected to have a
material adverse effect on the business, operations, property or financial or
other condition of the Company and the Subsidiaries, taken as a whole, or the
ability of the Company to perform its obligations hereunder.
5F. INFORMATION REQUIRED BY RULE 144A. The Company will, upon the
request of the holder of any Note, provide such holder, and any qualified
institutional buyer designated by such holder, such financial and other
information as such holder may reasonably determine to be necessary in order to
permit compliance with the information requirements of Rule 144A under the
Securities Act in connection with the resale of Notes, except at such times as
the Company is subject to the reporting requirements of section 13 or 15(d) of
the Exchange Act. For the purpose of this paragraph 5B, the term "qualified
institutional buyer" shall have the meaning specified in Rule 144A under the
Securities Act.
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5G. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will and will
cause each of its Subsidiaries to file all income tax or similar tax returns
required to be filed in any jurisdiction and to pay and discharge all taxes
shown to be due and payable by the Company or its Subsidiaries on such returns
and all other taxes, assessments, governmental charges, levies, trade accounts
payable and claims for work, labor or materials (all the foregoing being
referred to collectively as "CLAIMS") payable by any of them, to the extent such
Claims have become due and payable and before they have become delinquent;
provided, that neither the Company nor any Subsidiary need pay any Claim if (i)
the amount, applicability or validity thereof is contested by the Company or
such Subsidiary on a timely basis in good faith and in appropriate proceedings,
and the Company or such Subsidiary has established adequate reserves therefor in
accordance with generally accepted accounting principles on its books or (ii)
the nonpayment of all such Claims in the aggregate could not reasonably be
expected to have a material adverse effect on the business, operations, property
or financial or other condition of the Company and its Subsidiaries, taken as a
whole, or the ability of the Company to perform its obligations hereunder.
5H. ERISA COMPLIANCE. The Company will, and will cause each ERISA
Affiliate controlled by the Company to, at all times:
(i) with respect to each Plan, make timely payments of
contributions required to meet the minimum funding standard set forth
in ERISA or the Code with respect thereto and, with respect to any
Multiemployer Plan, make timely payment of contributions required to be
paid thereto as provided by Section 515 of ERISA, and
(ii) comply with all other provisions of ERISA,
except for such failures to make contributions and failures to comply as could
not reasonably be expected to have a material adverse effect on the business,
operations, property or financial or other condition of the Guarantor and its
Subsidiaries, taken as a whole, or the ability of the Company to perform its
obligations hereunder.
PARAGRAPH 6. NEGATIVE COVENANTS.
6. NEGATIVE COVENANTS. So long as any Note shall remain unpaid, the
Company covenants as follows:
6A. CHANGE OF BUSINESS. The Company will not change, and will not
permit any Material Subsidiary to change, in any material respect the purpose of
its business or operations from that of owning and operating the St. Louis
Post-Dispatch and other businesses directly or indirectly related thereto,
including certain businesses contributed to the Company pursuant to the
Contribution Agreement.
6B. LIMITATION ON DISTRIBUTIONS. The Company will not declare or
make, or incur any liability to declare or make, any distributions, except, the
following:
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(i) the distribution to Herald on the date hereof of the
proceeds of the issuance and sale of the Notes pursuant to Section
3.11(a) of the Limited Liability Company Agreement;
(ii) a distribution to Herald made pursuant to Section 3.11
(b) of the Limited Liability Company Agreement (as in effect on the
date hereof); and
(iii) any other distribution permitted by the
Formation/Contribution Documents, provided, that both before and
immediately after giving effect to any such distribution, the "Reserve
Asset Value" (as defined in the Limited Liability Company Agreement as
in effect on the date hereof) is at least equal to the "Minimum Reserve
Amount" (as defined in the Limited Liability Company Agreement as in
effect on the date hereof).
6C. LIEN, DEBT AND OTHER RESTRICTIONS. The Company will not, and
will not permit any Subsidiary to:
6C(l).LIENS. Create, assume or suffer to exist any Lien upon any of
its property or assets, whether now owned or hereafter acquired (whether or not
provision is made for the equal and ratable securing of the Notes in accordance
with the provisions of paragraph 5C), except:
(i) Liens contemplated by, or arising as a result of,
Section 2.8 of the Contribution Agreement;
(ii) mechanics', workmen's, repairmen's, warehousemen's,
carriers' or other like Liens arising or incurred in the ordinary
course of business for amounts which are not delinquent or are being
actively contested in good faith by appropriate proceedings;
(iii) with respect to real property, (a) easements,
quasi-easements, licenses, covenants, rights-of-way and other similar
restrictions, including any other agreements, conditions, restrictions
or other matters which would be shown by a current title report or
other similar report or listing, (b) any conditions that would be shown
by a current survey or physical inspection and (c) zoning, building and
other similar restrictions;
(iv) Liens for taxes or assessments or other governmental
charges or levies not yet due or which are being actively contested in
good faith by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or its Subsidiaries,
as the case may be, in accordance with generally accepted accounting
principles;
(v) Liens on property or assets of a Subsidiary to secure
obligations of such Subsidiary to the Company or another Subsidiary;
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(vi) to the extent the Debt secured thereby is permitted
under clause (v) of paragraph 6C(2), (a) Liens securing Capitalized
Lease Obligations of the Company or its Subsidiaries, (b) Liens
securing other Debt of the Company or its Subsidiaries to finance the
purchase price or cost of property acquired, constructed or improved by
the Company or any Subsidiary after the Date of Closing (including,
without limitation, pursuant to purchase price conditional sales
contracts) or (c) Liens existing on any property of any Person at the
time it becomes a Subsidiary, or existing prior to the time of
acquisition upon any property acquired by the Company or any Subsidiary
through purchase, merger, or consolidation or otherwise, whether or not
assumed by the Company or such Subsidiary, provided that any such Lien
shall not encumber any other property of the Company or such
Subsidiary;
(vii) any Liens renewing, extending or refunding any Lien
permitted by clause (vi) above, provided that the principal amount
secured is not increased and the Lien is not extended to other
property;
(viii) Liens consisting of financing statements filed under
the Uniform Commercial Code of any jurisdiction solely for
precautionary or notice purposes with respect to equipment leases; and
(ix) other Liens which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit, and
which do not in the aggregate materially impair the use of such
property and assets in the operation of the business of the Company and
its Subsidiaries, or materially detract from the value of such property
or assets for the purpose of the business of the Company and its
Subsidiaries, taken as a whole.
6C(2). DEBT. Create, incur, assume, guarantee or in any way become
liable for any Debt except:
(i) Debt represented by the Notes;
(ii) Debt of the Company owing to the Guarantor; provided
that such Debt is (a) unsecured and (b) incurred pursuant to, and
evidenced by, a Subordinated Intercompany Note substantially in the
form of Exhibit E attached hereto;
(iii) Debt of the Company or any of its Subsidiaries permitted
under paragraph 6C(3);
(iv) Debt of the Company and its Subsidiaries consisting of
trade payables incurred in the ordinary course of business;
(v) (a) Debt of the Company and its Subsidiaries
constituting Capitalized Lease Obligations, (b) other Debt of the
Company or its Subsidiaries to finance the purchase price or cost of
property acquired, constructed or improved by the Company or
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any Subsidiary after the Date of Closing, or (c) Debt secured by Liens
existing on any property of any Person at the time it becomes a
Subsidiary, or existing prior to the time of acquisition upon any
property acquired by the Company or any Subsidiary through purchase,
merger, or consolidation or otherwise, and assumed by the Company or
such Subsidiary, in each case the extent such Liens are permitted under
clause (vi) of paragraph 6C(1), provided that the aggregate principal
amount of all such Debt described in subclauses (a), (b) and (c) of
this clause (v) at any time outstanding shall not exceed $15,000,000;
and
(vi) Debt secured by Liens permitted under clauses (v) and
(vii) of paragraph 6C(1) (provided, in the case of Liens permitted
under clause (vii) of paragraph 6C(1) that renew, extend or refund any
Lien permitted under clause (vi) of paragraph 6C(1), that such Liens
shall be permitted only to the extent the Debt secured thereby is
permitted under clause (v) of this paragraph 6C(2)).
6C(3).LOANS, ADVANCES AND INVESTMENTS. Make, or permit to remain
outstanding, any loan or advance to, or own, purchase or acquire any stock,
obligations or securities of, or any interest in, or make any capital
contribution to, any Person, except that the Company or any Subsidiary may:
(i) make or permit to remain outstanding loans, advances
or capital contributions to any Subsidiary;
(ii) make or permit to remain outstanding any loans, advances
or capital contributions from any Subsidiary to the Company or any
other Subsidiary;
(iii) own, purchase or acquire stock, obligations or
securities of or other equity interests in a Subsidiary or a Person
which immediately after such purchase or acquisition will be a
Subsidiary;
(iv) make and permit to remain outstanding investments in
notes receivable which are received pursuant to (a) the sale of all or
substantially all of a business or operations or (b) the sale of used
equipment in the ordinary course of business, but in each case only to
the extent that the aggregate uncollected amount of all such notes
receivable, together with all such notes receivable of the Guarantor
and its Subsidiaries, would be permitted under clause (iv) of Section
5.4 of the Guaranty Agreement;
(v) make and permit to remain outstanding loans, advances
and other investments received in settlement of debts (created in the
ordinary course of business) owing to the Company or any Subsidiary;
(vi) own, purchase or acquire commercial paper issued by any
corporation or bankers' acceptances issued by any member bank of the
Federal Reserve System, in either case, maturing within one year of the
date of purchase and rated, by at least two of
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Standard & Poor's Ratings Group, Moody's Investors Service, Inc. and
Fitch Investors Service, Inc., "A-1", "P-1" and "F-1", respectively,
and payable in the United States in United States dollars;
(vii) own, purchase or acquire certificates of deposit in
member banks of the Federal Reserve System (each having capital
resources in excess of $75,000,000) or certificates of deposit in an
aggregate amount not to exceed $2,000,000 in banks having capital
resources of less than $75,000,000), all due within one year from the
date of original issue thereof and payable in the United States in
United States dollars;
(viii) own, purchase or acquire repurchase agreements of
member banks of the Federal Reserve System (each having capital
resources in excess of $75,000,000) for terms of less than one year in
respect of the foregoing certificates and obligations;
(ix) own, purchase or acquire obligations of the United
States government or any agency thereof;
(x) own, purchase or acquire obligations guaranteed by the
United States government or any agency thereof;
(xi) own, purchase or acquire investments in stocks of
investment companies registered under the Investment Company Act of
1940 which invest primarily in obligations of the type described in
clauses (vi), (vii), (viii), (ix) or (x) above, provided that any such
investment company shall have an aggregate net asset value of not less
than $500,000,000;
(xii) own, purchase or acquire investments in money market
mutual funds that are classified as current assets in accordance with
generally accepted accounting principles, that are rated "AAAm" by
Standard & Poor's Ratings Group and that invest solely in investments
described in clauses (vi), (vii), (viii), (ix) or (x) above, which
funds are managed by Persons having capital and surplus in excess of
$500,000,000;
(xiii) own, purchase or acquire (a) asset-backed securities,
mortgage-backed securities and collateralized mortgage obligations
issued by any entity and rated at least Aa3 by Moody's Investors
Service, Inc. or AA- by Standard & Poor's Ratings Group and (b) notes
and bonds issued by any domestic corporate issuer and rated at least A3
by Moody's Investors Service, Inc. or A- by Standard & Poor's Ratings
Group;
(xiv) endorse negotiable instruments for collection in the
ordinary course of business;
(xv) make or permit to remain outstanding travel and other
like advances to officers and employees in the ordinary course of
business;
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(xvi) make or permit to remain outstanding investments in
demand deposit accounts maintained by the Company or any Subsidiary in
the ordinary course of its business;
(xvii) make or permit to remain outstanding investments
consisting of Eurodollar time deposits, maturing within three months
after the making thereof, with any branch of a United States commercial
bank having capital and surplus of not less than $1 billion in the
aggregate;
(xviii) make or permit to remain outstanding investments in
municipal obligations having a rating of "Aaa" by Moody's Investors
Service, Inc., or "AAA" by Standard & Poor's Ratings Group; and
(xix) make or permit to remain outstanding any other loan or
advance to, or own, purchase or acquire any other stock, obligations or
securities of, or any other interest in, or make any other capital
contribution to any Person, provided that the aggregate amount thereof,
together with the aggregate amount of all such loans, advances and
investments of the Guarantor and its Subsidiaries, would be permitted
under clause (xxi) of Section 5.4 of the Guaranty Agreement.
6C(4).SALE OR DISPOSITION OF CAPITAL ASSETS. Sell or dispose of
capital assets (including capital stock or other equity interests), except (i)
sales of obsolete or worn-out equipment in the ordinary course of business, (ii)
sales of interests in any Subsidiary that is not a Material Subsidiary and (iii)
sales by the Company or any Subsidiary of its interest in the internet service
provider business located in St. Louis.
6C(5).SALE AND LEASE-BACK. Enter into any arrangement with any lender
or investor or under which such lender or investor is a party, providing for the
leasing or other similar arrangement by the Company or any Subsidiary of real or
personal property used by the Company or any Subsidiary in the operations of the
Company or any Subsidiary, which has been or is sold or transferred by the
Company or any Subsidiary to such lender or investor or to any Person to whom
funds have been or are to be advanced by such lender or investor on the security
of such rental obligations of the Company or such Subsidiary.
6C(6).MERGER. Merge or consolidate with any other Person, except that
any Subsidiary may merge or consolidate with the Company (provided that the
Company shall be the continuing or surviving Person) or any one or more other
Subsidiaries; provided that nothing in this paragraph 6C(6) shall restrict the
ability of any Subsidiary which is not a Material Subsidiary to merge or
consolidate with any Person.
6C(7).TRANSACTIONS WITH AFFILIATES. Except with respect to
transactions involving the allocation of costs and expenses among the Guarantor
and its Subsidiaries (including the Company and its Subsidiaries) in respect of
insurance, technical support, compensation and benefits, overhead allocation and
other similar administrative costs and expenses, directly or
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indirectly enter into or be a party to any transaction or arrangement,
including, without limitation, the purchase, sale, exchange or use of any
property or asset, or any interest therein, whether real, personal or mixed, or
tangible or intangible, or the rendering of any service, with any Affiliate,
except transactions in the ordinary course of and pursuant to the reasonable
requirements of the Company's and each Subsidiary's business, as the case may
be, and upon fair and reasonable terms that are no less favorable to the Company
and the Subsidiaries, as the case may be, than those which might be obtained in
an arm's length transaction with a Person not an Affiliate. For avoidance of
doubt, the reference in this paragraph 6C(7) to transactions with "any
Affiliate" shall be understood to exclude both (i) transactions between the
Company and any Subsidiary and (ii) transactions between a Subsidiary of the
Company and any other Subsidiary of the Company.
6C(8).ISSUANCE OR SALE OF STOCK OF SUBSIDIARIES. Issue, sell or
otherwise dispose of, or part with control of, any shares of stock of or other
equity interests in any Subsidiary (other than a Subsidiary which is not a
Material Subsidiary), except to the Company or another Subsidiary.
6C(9).SALE OR DISCOUNT OF RECEIVABLES. Sell with recourse, discount
(other than to the extent of finance and interest charges included therein) or
otherwise sell for less than face value thereof, any of its notes or accounts
receivable, except notes or accounts receivable of the Company or its
Subsidiaries the collection of which is doubtful in accordance with generally
accepted accounting principles.
6D. RESTRICTIONS UPON MODIFICATION OF LIMITED LIABILITY COMPANY
AGREEMENT. The Company will not alter, amend or modify, or permit the
alteration, amendment or modification of, any provision of Article IV or Article
VI of the Limited Liability Company Agreement.
6E. LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS. Except as set forth
in the Limited Liability Company Agreement (as in effect on the date hereof),
the Company will not and will not permit any of its Subsidiaries to enter into
or suffer to exist any contractual obligation, other than this Agreement, which
in any way restricts the ability of the Company or any of its Subsidiaries to
(a) create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, (b) make any payments in respect of the Notes required under
this Agreement, (c) make any dividends or distributions or (d) transfer any of
its property or assets to the Company or a Subsidiary of the Company.
PARAGRAPH 7. EVENTS OF DEFAULT.
7. EVENTS OF DEFAULT.
7A. ACCELERATION. If any of the following events shall occur and be
continuing for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law or
otherwise):
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(i) the Company defaults in the payment of any principal of
or Yield-Maintenance Amount payable with respect to any Note when the
same shall become due, either by the terms thereof or otherwise as
herein provided; or
(ii) the Company defaults in the payment of any interest on
any Note for more than 5 Business Days after the date due; or
(iii) (a) any representation or warranty made by the Company
herein or in any writing furnished in connection with or pursuant to
this Agreement shall be false in any material respect on the date as of
which made, or (b) any representation or warranty made by Herald to or
in favor of the holders, or upon which the holders have been authorized
by Herald to rely, or any certification made by or on behalf of Herald
to or in favor of the Guarantor pursuant to Section 2.9 of the
Contribution Agreement, shall be false in any material respect on the
date as of which made; or
(iv) the Company fails to perform or observe any agreement
contained in paragraph 6; or
(v) the Company fails to perform or observe any other
agreement, term or condition contained herein and such failure shall
not be remedied within 30 days after any Responsible Officer of the
Company obtains actual knowledge thereof; or
(vi) the Company or any Material Subsidiary makes an
assignment for the benefit of creditors or is generally not able to pay
its debts as such debts become due; or
(vii) any decree, judgment, or order for relief in respect of
the Company or any Material Subsidiary is entered under any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law, whether now or
hereafter in effect (herein called the "BANKRUPTCY LAW"), of any
jurisdiction; or
(viii) the Company or any Material Subsidiary petitions or
applies to any tribunal for, or consents to, the appointment of, or
taking possession by, a trustee, receiver, custodian, liquidator or
similar official of the Company or any Material Subsidiary, or of any
substantial part of the assets of the Company or any Material
Subsidiary, or commences a voluntary case under the Bankruptcy Law of
the United States or any proceedings (other than proceedings for the
voluntary liquidation and dissolution of a Material Subsidiary)
relating to the Company or any Material Subsidiary under the Bankruptcy
Law of any other jurisdiction; or
(ix) any such petition or application is filed, or any such
proceedings are commenced, against the Company or any Material
Subsidiary and the Company or such Material Subsidiary by any act
indicates its approval thereof, consent thereto or acquiescence
therein, or an order, judgment or decree is entered appointing any such
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trustee, receiver, custodian, liquidator or similar official, or
approving the petition in any such proceedings, and such order,
judgment or decree remains unstayed and in effect for more than 60
days; or
(x) any order, judgment or decree is entered in any
proceedings against the Company or any Material Subsidiary decreeing
the dissolution of the Company or such Material Subsidiary and such
order, judgment or decree remains unstayed and in effect for more than
60 days; or
(xi) one or more final judgments in an aggregate amount in
excess of $10,000,000 is rendered against the Guarantor, the Company or
any of their respective Subsidiaries and, within 60 days after entry
thereof, any such judgment is not discharged or execution thereof
stayed pending appeal, or within 60 days after the expiration of any
such stay, such judgment is not discharged; or
(xii) (a) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under section 412 of the Code, (b) a notice of intent
to terminate any Plan in a distress termination (within the meaning of
ERISA section 4041(c)) shall have been or is reasonably expected to be
filed with the PBGC or the PBGC shall have instituted proceedings under
ERISA section 4042 to terminate or appoint a trustee to administer any
Plan or the PBGC shall have notified the Company or any ERISA Affiliate
that a Plan may become a subject of such proceedings, (c) the aggregate
"amount of unfunded benefit liabilities" (within the meaning of section
4001(a)(18) of ERISA) under all Plans, determined in accordance with
Title IV of ERISA, shall exceed $5,000,000, (d) the Company or any
ERISA Affiliate shall have incurred or is reasonably expected to incur
any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans,
(e) the Company or any ERISA Affiliate withdraws from any Multiemployer
Plan, or (f) the Company or any Subsidiary establishes or amends any
employee welfare benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability of the Company
or any Subsidiary thereunder; and any such event or events described in
clauses (a) through (f) above, either individually or together with any
other such event or events, could reasonably be expected to have a
material adverse effect on the business, operations, property or
financial or other condition of the Guarantor and its Subsidiaries,
taken as a whole, or the ability of the Company to perform its
obligations hereunder; or
(xiii) any provision of the Guaranty Agreement shall for any
reason cease to be valid and binding on the Guarantor or the Guarantor
shall so assert in writing; or
(xiv) a Guaranty Event of Default shall have occurred and be
continuing;
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then (A) if such event is an Event of Default specified in clause (i) or (ii) of
this paragraph 7A, the holder of any Note (other than the Company or any of its
Subsidiaries or Affiliates) may at its option during the continuance of such
Event of Default, by notice in writing to the Company, declare such Note to be,
and such Note shall thereupon be and become, immediately due and payable at par,
together with interest accrued thereon, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Company, (B) if
such event is an Event of Default specified in clause (vii), (viii) or (ix) of
this paragraph 7A with respect to the Company, all of the Notes at the time
outstanding shall automatically become immediately due and payable, together
with interest accrued thereon and the Yield-Maintenance Amount, if any, with
respect to each Note, without presentment, demand, protest or notice of any
kind, all of which are hereby waived by the Company, and (C) with respect to any
event constituting an Event of Default (including an event described in clause
(A) above), the holder or holders of at least 66 2/3% of the aggregate principal
amount of Notes then outstanding may at its or their option, by notice in
writing to the Company, declare all of the Notes to be, and all of the Notes
shall thereupon be and become, immediately due and payable together with
interest accrued thereon and together with the Yield-Maintenance Amount, if any,
with respect to each Note, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Company.
The Company acknowledges, and the parties hereto agree, that each
holder of a Note has the right to maintain its investment in the Notes free from
repayment by the Company (except as herein specifically provided for) and that
the provision for payment of the Yield-Maintenance Amount by the Company in the
event that the Notes are prepaid or are accelerated as a result of an Event of
Default, is intended to provide compensation for the deprivation of such right
under such circumstances.
7B. RESCISSION OF ACCELERATION. At any time after any or all of the
Notes shall have been declared immediately due and payable pursuant to paragraph
7A, the holder or holders of at least 66 2/3% of the aggregate principal amount
of Notes then outstanding may, by notice in writing to the Company, rescind and
annul such declaration and its consequences if (i) the Company shall have paid
all overdue interest on the Notes, the principal of and Yield-Maintenance
Amount, if any, payable with respect to any Notes which have become due
otherwise than by reason of such declaration, and interest on such overdue
interest and overdue principal and Yield-Maintenance Amount at the rate
specified in the Notes, (ii) the Company shall not have paid any amounts which
have become due solely by reason of such declaration, (iii) all Events of
Default and Defaults, other than non-payment of amounts which have become due
solely by reason of such declaration, shall have been cured or waived pursuant
to paragraph 11C, and (iv) no judgment or decree shall have been entered for the
payment of any amounts due pursuant to the Notes or this Agreement. No such
rescission or annulment shall extend to or affect any subsequent Event of
Default or Default or impair any right arising therefrom.
7C. NOTICE OF ACCELERATION OR RESCISSION. Whenever any Note shall be
declared immediately due and payable pursuant to paragraph 7A or any such
declaration shall be
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rescinded and annulled pursuant to paragraph 7B, the Company shall forthwith
give written notice thereof to the holder of each Note at the time outstanding.
7D. OTHER REMEDIES. If any Event of Default or Default shall occur
and be continuing, the holder of any Note may proceed to protect and enforce its
rights under this Agreement and such Note by exercising such remedies as are
available to such holder in respect thereof under applicable law, either by suit
in equity or by action at law, or both, whether for specific performance of any
covenant or other agreement contained in this Agreement or in aid of the
exercise of any power granted in this Agreement. No remedy conferred in this
Agreement upon the holder of any Note is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy conferred herein or now or hereafter existing at
law or in equity or by statute or otherwise.
PARAGRAPH 8. REPRESENTATIONS, COVENANTS AND WARRANTIES.
8. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company represents,
covenants and warrants as follows:
8A. ORGANIZATION AND QUALIFICATION; DUE AUTHORIZATION. The Company is
a limited liability company duly organized and existing in good standing under
the laws of the State of Delaware. Each Material Subsidiary is duly organized
and existing in good standing under the laws of the jurisdiction in which it is
incorporated or otherwise organized. The Company has and each Material
Subsidiary has the limited liability company or corporate power, as applicable,
to own its respective property and to carry on its respective business as now
being conducted, and the Company is and each Material Subsidiary is duly
qualified as a foreign limited liability company or foreign corporation, as
applicable, to do business and in good standing in every jurisdiction in which
the nature of the respective business conducted or property owned by it makes
such qualification necessary, except where the failure to so qualify would not
have a material adverse effect on the Company and its Subsidiaries taken as a
whole. The Company has the limited liability company power and authority to
execute and deliver this Agreement and the Notes and to perform the provisions
hereof and thereof. The execution, delivery and performance by the Company of
this Agreement and the Notes have been duly authorized by all necessary limited
liability company action.
8B. FINANCIAL STATEMENTS. The Company has caused to be furnished to
you the following financial statements, identified by a principal financial
officer of the Guarantor: a consolidated balance sheet of the Guarantor (or its
predecessor, Pulitzer Publishing Company) and its Subsidiaries as at December 31
in each of the years 1997 to 1999, inclusive, and statements of consolidated
income, financial position and cash flows of the Guarantor (or its predecessor,
Pulitzer Publishing Company) and its Subsidiaries for each such year all audited
by Deloitte & Touche L.L.P. Such financial statements (including any related
schedules and/or notes) are true and correct in all material respects, have been
prepared in accordance with generally accepted accounting principles
consistently followed throughout the periods involved
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and show all liabilities, direct and contingent, of the Guarantor (or its
predecessor, Pulitzer Publishing Company) and its Subsidiaries required to be
shown in accordance with such principles. The balance sheets fairly present the
condition of the Guarantor (or its predecessor, Pulitzer Publishing Company) and
its Subsidiaries as at the dates thereof, and the statements of income and
statements of financial position and cash flows fairly present the results of
the operations of the Guarantor (or its predecessor, Pulitzer Publishing
Company) and its Subsidiaries for the periods indicated. There has been no
material adverse change in the business, condition or operations (financial or
otherwise) of the Guarantor and its Subsidiaries taken as a whole since December
31, 1999.
8C. ACTIONS PENDING. There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries, or any properties or rights of the Company
or any of its Subsidiaries, by or before any court, arbitrator or administrative
or governmental body which might result in any material adverse change in the
business, condition or operations of the Company and its Subsidiaries taken as a
whole. There is no action, suit, investigation or proceeding pending or
threatened against the Company or any of its Subsidiaries which purports to
affect the validity or enforceability of this Agreement or any Note.
8D. OUTSTANDING DEBT. Neither the Company nor any of its Subsidiaries
has outstanding any Debt except as permitted by paragraph 6C(2). There exists no
default under the provisions of any instrument evidencing such Debt or of any
agreement relating thereto.
8E. TITLE TO PROPERTIES. The Company has and each of its Material
Subsidiaries has good and marketable title to its respective real properties
(other than properties which it leases) and good title to all of its other
respective properties and assets (including all properties and assets
contributed to the Company in the Formation/Contribution Transactions), subject
to no Lien of any kind except Liens permitted by paragraph 6C(l). All leases
necessary in any material respect for the conduct of the respective businesses
of the Company and its Subsidiaries are valid and subsisting and are in full
force and effect.
8F. CONFLICTING AGREEMENTS AND OTHER MATTERS. Neither the Company nor
any of its Subsidiaries is a party to any contract or agreement or subject to
any charter or other limited liability company or corporate restriction which
materially and adversely affects the business, property or assets, or financial
condition of the Company and its Subsidiaries, taken as a whole. Neither the
execution nor delivery of this Agreement, the Notes or the
Formation/Contribution Documents, nor the offering, issuance and sale of the
Notes, nor fulfillment of nor compliance with the terms and provisions hereof
and of the Notes and the Formation/Contribution Documents will conflict with, or
result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the creation of any
Lien upon any of the properties or assets of the Company or any of its
Subsidiaries pursuant to, the limited liability company agreement, charter,
by-laws or other organizational documents of the Company or any of its
Subsidiaries, any award of any arbitrator or any agreement (including any
agreement with members or stockholders), instrument, order, judgment, decree,
statute, law, rule or
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regulation to which the Company or any of its Subsidiaries is subject, except to
the extent any such conflict, breach, defaults, violation or creation of a Lien
could not reasonably be expected to have a material adverse effect on the
business, operations, property or financial or other condition of the Company
and its Subsidiaries, taken as a whole, or the ability of the Company to perform
its obligations hereunder. Except as set forth in the Limited Liability Company
Agreement (as in effect on the date hereof), neither the Company nor any of its
Subsidiaries is a party to, or otherwise subject to any provision contained in,
any instrument evidencing indebtedness of the Company or such Subsidiary, any
agreement relating thereto or any other contract or agreement (including its
limited liability company agreement, charter or other organizational documents)
which limits the amount of, or otherwise imposes restrictions on the incurring
of, Debt of the Company of the type to be evidenced by the Notes.
8G. OFFERING OF NOTES. Neither the Company nor any agent acting on
its behalf has, directly or indirectly, offered the Notes or any similar
security of the Company for sale to, or solicited any offers to buy the Notes or
any similar security of the Company from, or otherwise approached or negotiated
with respect thereto with, any Person other than the Purchasers, and neither the
Company nor any agent acting on its behalf has taken or will take any action
which would subject the issuance or sale of the Notes to the provisions of
Section 5 of the Securities Act, or to the provisions of any securities or Blue
Sky law of any applicable jurisdiction.
8H. USE OF PROCEEDS. Neither the Company nor any Subsidiary owns or
has any present intention of acquiring any "margin stock" as defined in
Regulation U (12 CFR Part 221) of the Board of Governors of the Federal Reserve
System ("MARGIN STOCK"). The proceeds of sale of the Notes will be used in
connection with the formation and capitalization of the Company pursuant to and
in accordance with the Formation/Contribution Documents. None of such proceeds
will be used, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying any margin stock or for the
purpose of maintaining, reducing or retiring any indebtedness which was
originally incurred to purchase or carry any stock that is currently a margin
stock or for any other purpose which might constitute this transaction a
"purpose credit" within the meaning of such Regulation U. Neither the Company
nor any agent acting on its behalf has taken or will take any action which might
cause this Agreement or the Notes to violate Regulation U, Regulation T or any
other regulation of the Board of Governors of the Federal Reserve System or to
violate the Exchange Act, in each case as in effect now or as the same may
hereafter be in effect.
8I. ERISA. No accumulated funding deficiency (as defined in section
302 of ERISA and section 412 of the code), whether or not waived, exists with
respect to any Plan. No liability to the PBGC has been or is expected by the
Company, any Subsidiary or any ERISA Affiliate to be incurred with respect to
any Plan by the Company, any Subsidiary or any ERISA Affiliate which is or would
be materially adverse to the Guarantor and its Subsidiaries taken as a whole.
Neither the Company, any Subsidiary nor any ERISA Affiliate has incurred or
presently expects to incur any withdrawal liability under Title IV of ERISA with
respect to any Multiemployer Plan which is or would be materially adverse to the
Guarantor and its Subsidiaries taken as a whole. The execution and delivery of
this Agreement and the issuance and sale of the Notes will
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not involve any transaction which is subject to the prohibitions of section 406
of ERISA or in connection with which a tax could be imposed pursuant to section
4975 of the Code. The representation by the Company in the preceding sentence is
made in reliance upon and subject to the accuracy of the representation of each
Purchaser in paragraph 9B.
8J. GOVERNMENTAL CONSENT. Neither the nature of the Company or of any
Subsidiary, nor any of their respective businesses or properties, nor any
relationship between the Company or any Subsidiary and any other Person, nor any
circumstance in connection with the offering, issuance, sale or delivery of the
Notes is such as to require any authorization, consent, approval, exemption or
other action by or notice to or filing with any court or administrative or
governmental body (other than routine filings after the date of closing with the
Securities and Exchange Commission and/or state Blue Sky authorities) in
connection with the execution and delivery of this Agreement, the offering,
issuance, sale or delivery of the Notes or fulfillment of or compliance with the
terms and provisions hereof or of the Notes.
8K. BUSINESS; ACTIVITIES. The Company has not engaged in any business
or activities prior to the date of this Agreement, except for activities related
to its formation and organization and prospective operations as described in the
Formation/Contribution Documents.
8L. OWNERSHIP OF COMPANY. All capital contributions required in respect
of the limited liability company interests of the Company will, upon funding of
the Notes, have been made, subject to the provisions of Section 2.8 of the
Contribution Agreement.
8M. DISCLOSURE. Neither this Agreement nor any other document,
certificate or statement furnished to you by or on behalf of the Company in
connection herewith contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
and therein not misleading in light of the circumstances at the time made. There
is no fact peculiar to the Company or any of its Subsidiaries which materially
adversely affects or in the future may (so far as the Company can now foresee)
materially adversely affect the business, property or assets, or financial
condition of the Company and its Subsidiaries taken as a whole and which has not
been set forth in this Agreement or in the other documents, certificates and
statements furnished to you by or on behalf of the Company prior to the date
hereof in connection with the transactions contemplated hereby.
8N. FORMATION/CONTRIBUTION DOCUMENTS. Each of the
Formation/Contribution Documents has been duly executed and delivered by the
Guarantor and any of its Subsidiaries parties thereto and constitutes the valid
and binding agreement of such parties, enforceable against each in accordance
with its terms except as enforceability may be limited by bankruptcy,
insolvency, moratorium or other laws relating to or affecting creditors' rights
generally and the exercise of judicial discretion in accordance with general
equitable principles. There exists no material default by the Guarantor or any
of its Subsidiaries (or, to the knowledge of the Company, by Herald) under any
Formation/Contribution Document.
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8O. SOLVENCY. The Guarantor and the Company, individually, and the
Guarantor and its Subsidiaries, on a consolidated basis, are Solvent, both
before and after giving effect to this Agreement, the Guaranty Agreement, the
Formation/Contribution Documents and the transactions contemplated hereby and
thereby.
8P. REPRESENTATIONS AND WARRANTIES IN FORMATION/CONTRIBUTION DOCUMENTS.
To induce the Purchasers to enter into this Agreement and to purchase the Notes
to be purchased by them hereunder, the Company agrees that each Purchaser shall
be entitled to rely upon each of the representations and warranties of the
Company set forth in any of the Formation/Contribution Documents as fully as if
set forth in this Agreement.
PARAGRAPH 9. REPRESENTATIONS OF THE PURCHASERS.
9. REPRESENTATIONS OF THE PURCHASERS. Each Purchaser represents as
follows:
9A. NATURE OF PURCHASE. Such Purchaser is not acquiring the Notes to be
purchased by it hereunder with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act, provided that the
disposition of its property shall at all times be and remain within its control.
9B. SOURCE OF FUNDS. The source of the funds being used by such
Purchaser to pay the purchase price of the Notes being purchased by such
Purchaser hereunder constitutes assets: (i) allocated to the "insurance company
general account" of such Purchaser (as such term is defined under Section V of
the United States Department of Labor's Prohibited Transaction Class Exemption
95-60, issued July 12, 1995 ("PTCE 95-60"), and as of the date of the purchase
of the Notes such Purchaser satisfies all of the applicable requirements for
relief under Sections I and IV of PTCE 95-60, (ii) allocated to a separate
account maintained by such Purchaser in which no employee benefit plan, other
than employee benefit plans identified on a list which has been furnished by
such Purchaser to the Company, participates to the extent of 10% or more, or
(iii) of an investment fund, the assets of which do not include assets of any
employee benefit plan within the meaning of ERISA. For the purpose of this
paragraph 9B, the terms "SEPARATE ACCOUNT" and "EMPLOYEE BENEFIT PLAN" shall
have the respective meanings specified in section 3 of ERISA.
9C. INDEPENDENT INVESTIGATION. Each Purchaser has made its own
independent investigation of the condition (financial and otherwise), prospects
and affairs of the Guarantor, the Company and their respective Subsidiaries in
connection with its purchase of the Notes hereunder and has made and shall
continue to make its own appraisal of the creditworthiness of the Company and
the Guarantor. No holder of Notes shall have any duty or responsibility to any
other holder of Notes, either initially or on a continuing basis, to make any
such investigation or appraisal or to provide any credit or other information
with respect thereto. No holder of Notes is acting as agent or in any other
fiduciary capacity on behalf of any other holder of Notes.
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PARAGRAPH 10. DEFINITIONS; ACCOUNTING MATTERS.
10. DEFINITIONS; ACCOUNTING MATTERS. For the purpose of this Agreement,
the terms defined in paragraphs 10A and 10B (or within the text of any other
paragraph) shall have the respective meanings specified therein and all
accounting matters shall be subject to determination as provided in paragraph
10C.
10A. YIELD-MAINTENANCE TERMS.
"BUSINESS DAY" shall mean any day on which banks are open for business
in New York City (other than a Saturday, a Sunday or a legal holiday in the
States of New York or New Jersey).
"CALLED PRINCIPAL" shall mean, with respect to any Note, the principal
of such Note that is to be prepaid pursuant to paragraph 4A or has become or is
declared to be immediately due and payable pursuant to paragraph 7A, as the
context requires.
"DISCOUNTED VALUE" shall mean, with respect to the Called Principal of
any Note, the amount obtained by discounting all Remaining Scheduled Payments
with respect to such Called Principal from their respective scheduled due dates
to the Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (as converted to reflect
the periodic basis on which interest on the Notes is payable, if interest is
payable other than on a semi-annual basis) equal to the Reinvestment Yield with
respect to such Called Principal.
"REINVESTMENT YIELD" shall mean, with respect to the Called Principal
of any Note, 0.50% over the yield to maturity implied by (i) the yields
reported, as of 10:00 a.m. (New York City time) on the Business Day next
preceding the Settlement Date with respect to such Called Principal, on the
display designated as "Page 678" on the Bridge Telerate Service (or such other
display as may replace Page 678 on the Bridge Telerate Service) for actively
traded U.S. Treasury securities having a maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date, or if such yields
shall not be reported as of such time or the yields reported as of such time
shall not be ascertainable (including by way of interpolation), (ii) the
Treasury Constant Maturity Series yields reported, for the latest day for which
such yields shall have been so reported as of the Business Day next preceding
the Settlement Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor publication) for
actively traded U.S. Treasury securities having a constant maturity equal to the
Remaining Average Life of such Called Principal as of such Settlement Date. Such
implied yield shall be determined, if necessary, by (a) converting U.S. Treasury
bill quotations to bond-equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between yields reported for various
maturities.
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"REMAINING AVERAGE LIFE" shall mean, with respect to the Called
Principal of any Note, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the
sum of the products obtained by multiplying (a) each Remaining Scheduled Payment
of such Called Principal (but not of interest thereon) by (b) the number of
years (calculated to the nearest one-twelfth year) which will elapse between the
Settlement Date with respect to such Called Principal and the scheduled due date
of such Remaining Scheduled Payment.
"REMAINING SCHEDULED PAYMENTS" shall mean, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due on or after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to its
scheduled due date.
"SETTLEMENT DATE" shall mean, with respect to the Called Principal of
any Note, the date on which such Called Principal is to be prepaid pursuant to
paragraph 4A or has become or is declared to be immediately due and payable
pursuant to paragraph 7A, as the context requires.
"YIELD-MAINTENANCE AMOUNT" shall mean, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the Called
Principal of such Note over the sum of (i) such Called Principal plus (ii)
interest accrued thereon as of (including interest due on) the Settlement Date
with respect to such Called Principal. The Yield-Maintenance Amount shall in no
event be less than zero.
10B. OTHER TERMS.
"AFFILIATE" shall mean any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, the Company,
except a Subsidiary. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"BANKRUPTCY LAW" shall have the meaning specified in clause (vii) of
paragraph 7A.
"CAPITALIZED LEASE OBLIGATION" shall mean any rental obligation which,
under generally accepted accounting principles, is or will be required to be
capitalized on the books of the Company or any Subsidiary, taken at the amount
thereof accounted for as indebtedness (net of interest expense) in accordance
with such principles.
"CLAIMS" shall have the meaning specified in paragraph 5G.
"CLOSING" or "DATE OF CLOSING" shall have the meaning specified in
paragraph 2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
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"COMPANY" shall have the meaning specified in the introductory
paragraph of this Agreement.
"CONTRIBUTION AGREEMENT" shall mean that certain Joint Venture
Agreement, dated as of May 1, 2000, among the Guarantor, Pulitzer Technologies,
Inc., Herald and the Company, as the same may be amended, supplemented or
otherwise modified from time to time.
"DEBT" shall mean and include without duplication:
(i) all obligations for borrowed money or obligations
represented by notes payable and drafts accepted representing
extensions of credit, all obligations evidenced by bonds, debentures,
notes or other similar instruments and all obligations upon which
interest charges are customarily paid;
(ii) Capitalized Lease Obligations;
(iii) indebtedness secured by any Lien existing on property
owned by the Company or any Subsidiary subject to such Lien, whether or
not the indebtedness secured thereby shall have been assumed by the
Company or any Subsidiary;
(iv) guarantees, endorsements (other than endorsements of
negotiable instruments for collection in the ordinary course of
business) and other contingent liabilities (whether direct or indirect)
in connection with the obligations, stock or dividends of any Person;
(v) obligations under any contract providing for the making of
loans, advances or capital contributions to any Person, or for the
purchase of any property from any Person, in each case in order to
enable such Person primarily to maintain working capital, net worth or
any other balance sheet condition or to pay debt, dividends or
expenses;
(vi) obligations under any contract for the purchase of
materials, supplies or other property from any Person if such contract
(or any related document) requires that payment for such materials,
supplies or other property shall be made regardless of whether or not
delivery of such materials, supplies or other property is ever made or
tendered;
(vii) obligations under any contract to rent or lease (as
lessee) any real or personal property if such contract (or any related
document) provides that the obligation to make payments thereunder is
absolute and unconditional under conditions not customarily found in
commercial leases then in general use or requires that the lessee
purchase or otherwise acquire securities or obligations of the lessor;
(viii) obligations under any contract for the sale or use of
materials, supplies or other property, or the rendering of services, if
such contract (or any related document)
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requires that payment for such materials, supplies or other property,
or the use thereof, or payment for such services, shall be subordinated
to any indebtedness (of the purchaser or user of such materials,
supplies or other property or the Person entitled to the benefit of
such services) owed or to be owed to any Person; and
(ix) obligations under any other contract which, in economic
effect, is substantially equivalent to a guarantee;
provided, however, that Debt shall not include loans, advances and capital
contributions by the Company to any Subsidiary or by any Subsidiary to the
Company or another Subsidiary or a guarantee of the obligations of a Subsidiary
under an executory contract to purchase or sell a business.
"DEFAULT" shall mean any of the events specified in paragraph 7A,
whether or not any requirement for such event to become an Event of Default has
been satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA AFFILIATE" shall mean any Person which is a member of the same
controlled group of Persons as the Company within the meaning of section 414(b)
of the Code, or any trade or business which is under common control with the
Company within the meaning of section 414(c) of the Code.
"EVENT OF DEFAULT" shall mean any of the events specified in paragraph
7A, provided that there has been satisfied any requirement in connection with
such event for the giving of notice, or the lapse of time, or the happening of
any further condition, event or act.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"FORMATION/CONTRIBUTION DOCUMENTS" shall mean (i) the Limited Liability
Company Agreement, (ii) the Contribution Agreement and (iii) all other written
agreements, documents, instruments and certificates now or hereafter executed
and delivered by any Person which are required to consummate the
Formation/Contribution Transactions (excluding the Indemnity Agreement), and any
and all amendments, supplements and other modifications thereof and all
renewals, extensions, restatement or substitutions from time to time of all or
any of the foregoing.
"FORMATION/CONTRIBUTION TRANSACTIONS" shall mean the formation and
organization of the Company, the contribution to the Company by its members of
certain assets used in connection with the ownership and operation of the St.
Louis Post-Dispatch and certain related transactions, all pursuant to and in
accordance with the terms and conditions of the Formation/Contribution
Documents.
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"GUARANTY AGREEMENT" shall mean the Guaranty Agreement, dated as of
even date herewith, made by the Guarantor in favor of the holders of the Notes,
substantially in the form of Exhibit F attached hereto, as amended, supplemented
or otherwise modified from time to time.
"GUARANTOR" shall mean Pulitzer Inc., a Delaware corporation.
"GUARANTY DEFAULT" shall mean a "Default" under the Guaranty Agreement
(as such term is defined therein).
"GUARANTY EVENT OF DEFAULT" shall mean an "Event of Default" under the
Guaranty Agreement (as such term is defined therein).
"HERALD" shall mean The Herald Company, Inc., a New York corporation.
"INCLUDING" shall mean, unless the context clearly requires otherwise,
"including without limitation".
"INDEMNITY AGREEMENT" shall mean that certain Indemnity Agreement,
dated as of May 1, 2000, between the Guarantor and Herald, as the same may be
amended, supplemented or otherwise modified from time to time.
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any lease in
the nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction) or any other
type of preferential arrangement for the purpose, or having the effect, of
protecting a creditor against loss or securing the payment or performance of an
obligation, provided, that in no event shall the term "Lien" include (i) any
right, title or interest of a lessor with respect to any lease of real or
personal property under which the lessee's obligations are not Capitalized Lease
Obligations or (ii) the provisions of Sections 3.11(a) and 3.11(b) of the
Limited Liability Company Agreement (as in effect on the date hereof) requiring
the making of the distributions to Herald specified therein.
"LIMITED LIABILITY COMPANY AGREEMENT" shall mean the Operating
Agreement of the Company, dated as of May 1, 2000, entered into by and among the
Guarantor, Pulitzer Technologies, Inc. and Herald, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"MATERIAL SUBSIDIARY" shall mean (i) postnet.com LLC, (ii) SCR
Associates LLC and (iii) any other Subsidiary of the Company (whether now
existing or hereafter acquired or organized) which has gross assets of more than
$10,000,000 or has contributed more than 5% of the consolidated revenues of the
Company and its Subsidiaries (in each case as reflected in the consolidated and
consolidating financial statements of the Guarantor and its Subsidiaries as of
the end of the most recently concluded fiscal year).
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"MULTIEMPLOYER PLAN" shall mean any employee pension benefit plan which
is a "multiemployer plan" (as such term is defined in section 4001(a)(3) of
ERISA).
"OFFICER'S CERTIFICATE" shall mean a certificate signed in the name of
the Company or the Guarantor, as applicable, by its President, one of its Vice
Presidents or its Treasurer.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor or replacement entity thereto under ERISA.
"PERSON" shall mean and include an individual, a partnership, a joint
venture, a corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"PLAN" shall mean any "employee pension benefit plan" (as such term is
defined in section 3 of ERISA) which is or has been established or maintained,
or to which contributions are or have been made, by the Company or any ERISA
Affiliate, other than a Multiemployer Plan.
"PURCHASER" shall mean each Person named on the Purchaser Schedule
attached hereto.
"REQUIRED HOLDER(S)" shall mean the holder or holders of at least 51%
of the aggregate principal amount of the Notes from time to time outstanding.
"RESPONSIBLE OFFICER" shall mean the chief executive officer, general
counsel (if any), principal financial officer or principal accounting officer of
the Company or the Guarantor, as applicable.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SOLVENT" shall mean, with respect to any Person as of the date of any
determination, that on such date (i) the fair value of the property of such
Person (both at fair valuation and at present fair saleable value) is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (ii) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (iii) such Person is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (iv) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature and (v) such Person
is not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to current and
anticipated future capital requirements and current and anticipated future
business conduct and the prevailing practice in the industry in which such
Person is engaged. In computing the amount of contingent liabilities at any
time, such liabilities shall be computed at the amount which, in light of the
facts and
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circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"SUBSIDIARY" shall mean, as to the Company (or any other Person), any
other corporation, limited liability company, association or other business
entity organized under the laws of any state of the United States of America,
Canada or any province of Canada which conducts the major portion of its
business in and makes the major portion of its sales to Persons located in the
United States of America or Canada, and all of the stock of every class of which
(except directors' qualifying shares) or other equity interests in which shall,
at the time as of which any determination is being made, be owned by the Company
(or such other Person), either directly or through Subsidiaries. Unless the
context otherwise clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company.
"TRANSFEREE" shall mean any institutional investor that is a direct or
indirect transferee of all or any part of any Note purchased under this
Agreement.
10C. ACCOUNTING AND LEGAL PRINCIPLES, TERMS AND DETERMINATIONS. All
references in this Agreement to "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall
mean generally accepted accounting principles, as in effect in the United States
from time to time. Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all determinations with respect to accounting
matters hereunder shall be made, and all unaudited financial statements and
certificates and reports as to financial matters required to be furnished
hereunder shall be prepared, in accordance with generally accepted accounting
principles applied on a basis consistent with the most recent audited
consolidated financial statements of the Guarantor and its Subsidiaries
delivered pursuant to clause (i) or (ii) of paragraph 5A or, if no such
statements have been so delivered, the most recent audited financial statements
referred to in paragraph 8B. Any reference herein to any specific citation,
section or form of law, statute, rule or regulation shall refer to such new,
replacement or analogous citation, section or form should citation, section or
form be modified, amended or replaced.
PARAGRAPH 11. MISCELLANEOUS
11. MISCELLANEOUS.
11A. NOTE PAYMENTS. So long as any Purchaser shall hold any Note, the
Company will make payments of principal of, interest on and any
Yield-Maintenance Amount payable with respect to such Note, which comply with
the terms of this Agreement, by wire transfer of immediately available funds for
credit (not later than 1:00 p.m., New York City time, on the date due) to such
Purchaser's account or accounts as specified in the Purchaser Schedule attached
hereto, or such other account or accounts in the United States as such Purchaser
may designate in writing, notwithstanding any contrary provision herein or in
any Note with respect to the place of payment. Each Purchaser agrees that,
before disposing of any Note, it will make a notation thereon (or on a schedule
attached thereto) of all principal payments previously made thereon and of the
date to which interest thereon has been paid. The
30
<PAGE> 35
Company agrees to afford the benefits of this paragraph 11A to any Transferee
which shall have made the same agreement as the Purchasers have made in this
paragraph 11A. No holder shall be required to present or surrender any Note or
make any notation thereon, except that upon written request of the Company made
concurrently with or reasonably promptly after payment or prepayment in full of
any Note, the applicable holder shall surrender such Note for cancellation,
reasonably promptly after any such request, to the Company at its principal
executive office.
11B. EXPENSES. Whether or not the transactions contemplated hereby
shall be consummated, the Company shall pay, and save each Purchaser and any
Transferee harmless against liability for the payment of, all out-of-pocket
expenses arising in connection with such transactions, including:
(i) (a) all stamp and documentary taxes and similar charges and
(b) costs of obtaining a private placement number for the Notes;
(ii) document production and duplication charges and the fees and
expenses of any special counsel engaged by such Purchaser or such
Transferee in connection with (a) this Agreement and the transactions
contemplated hereby (subject, however, to the terms and conditions of
the letter agreement dated March 24, 2000 between the Guarantor and The
Prudential Insurance Company of America) and (b) any subsequent
proposed waiver, amendment or modification of, or proposed consent
under, this Agreement, whether or not such the proposed action shall be
effected or granted; and
(iii) the costs and expenses, including attorneys' fees, incurred
by such Purchaser or such Transferee in enforcing (or determining
whether or how to enforce) any rights under this Agreement, the
Guaranty Agreement or the Notes or in responding to any subpoena or
other legal process served upon such Person in connection with this
Agreement or the transactions contemplated hereby or by reason of such
Purchaser or such Transferee having acquired any Note, including
without limitation costs and expenses incurred in any workout,
restructuring or renegotiation proceeding or bankruptcy case.
The obligations of the Company under this paragraph 11B shall survive the
transfer of any Note or portion thereof or interest therein by any Purchaser or
Transferee and the payment of any Note.
11C. CONSENT TO AMENDMENTS. This Agreement may be amended, and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, if the Company shall obtain the written consent
to such amendment, action or omission to act, of the Required Holder(s) except
that, without the written consent of the holder or holders of all Notes at the
time outstanding, no amendment to this Agreement shall change the maturity of
any Note, or change the principal of, or the rate, method of computation or time
of payment of interest on or any Yield-Maintenance Amount payable with respect
to any Note, or affect the time, amount or allocation of any prepayments, or
change the
31
<PAGE> 36
proportion of the principal amount of the Notes required with respect to any
consent, amendment, waiver or declaration. Each holder of any Note at the time
or thereafter outstanding shall be bound by any consent authorized by this
paragraph 11C, whether or not such Note shall have been marked to indicate such
consent, but any Notes issued thereafter may bear a notation referring to any
such consent. No course of dealing between the Company and the holder of any
Note nor any delay in exercising any rights hereunder or under any Note shall
operate as a waiver of any rights of any holder of such Note. The Company will
not directly or indirectly pay or cause to be paid any remuneration, whether by
way of supplemental or additional interest, fee or otherwise, or grant any
security, to any holder of Notes as consideration for or as an inducement to the
entering into by any holder of Notes or any waiver or amendment of any of the
terms and provisions hereof unless such remuneration is concurrently paid, or
security is concurrently granted, on the same terms, ratably to each holder of
Notes then outstanding even if such holder did not consent to such waiver or
amendment. As used herein and in the Notes, the term "THIS AGREEMENT" and
references thereto shall mean this Agreement as it may from time to time be
amended or supplemented.
11D. FORM, REGISTRATION, TRANSFER AND EXCHANGE OF NOTES; LOST NOTES.
The Notes are issuable as registered notes without coupons in denominations of
at least $100,000, except as may be necessary to (i) reflect any principal
amount not evenly divisible by $100,000 or (ii) enable the registration of
transfer by a holder of its entire holding of Notes. The Company shall keep at
its principal office a register in which the Company shall provide for the
registration of Notes and of transfers of Notes. Upon surrender for registration
of transfer of any Note at the principal office of the Company, the Company
shall, at its expense, execute and deliver one or more new Notes of like tenor
and of a like aggregate principal amount, registered in the name of such
transferee or transferees. At the option of the holder of any Note, such Note
may be exchanged for other Notes of like tenor and of any authorized
denominations, of a like aggregate principal amount, upon surrender of the Note
to be exchanged at the principal office of the Company. Whenever any Notes are
so surrendered for exchange, the Company shall, at its expense, execute and
deliver the Notes which the holder making the exchange is entitled to receive.
Every Note surrendered for registration of transfer or exchange shall be duly
endorsed, or be accompanied by a written instrument of transfer duly executed,
by the holder of such Note or such holder's attorney duly authorized in writing.
Any Note or Notes issued in exchange for any Note or upon transfer thereof shall
carry the rights to unpaid interest and interest to accrue which were carried by
the Note so exchanged or transferred, so that neither gain nor loss of interest
shall result from any such transfer or exchange. Upon receipt of written notice
from the holder of any Note of the loss, theft, destruction or mutilation of
such Note and, in the case of any such loss, theft or destruction, upon receipt
of such holder's unsecured indemnity agreement, or in the case of any such
mutilation upon surrender and cancellation of such Note, the Company will make
and deliver a new Note, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Note.
11E. PERSONS DEEMED OWNERS; PARTICIPATIONS. Prior to due presentment
for registration of transfer, the Company may treat the Person in whose name any
Note is registered as the owner and holder of such Note for the purpose of
receiving payment of
32
<PAGE> 37
principal of, interest on and any Yield-Maintenance Amount payable with respect
to such Note and for all other purposes whatsoever, whether or not such Note
shall be overdue, and the Company shall not be affected by notice to the
contrary. Subject to the preceding sentence, the holder of any Note may from
time to time grant participations in such Note to any Person on such terms and
conditions as may be determined by such holder in its sole and absolute
discretion, provided that any such participation shall be in an amount of at
least $100,000, provided that no such granting of a participation shall increase
or otherwise affect the obligations of the Company hereunder.
11F. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT. All
representations and warranties contained herein or made in writing by or on
behalf of the Company in connection herewith shall survive the execution and
delivery of this Agreement and the Notes, the transfer by a Purchaser of any
Note or portion thereof or interest therein and the payment of any Note, and may
be relied upon by any Transferee, regardless of any investigation made at any
time by or on behalf of any Purchaser or any Transferee. Subject to the
preceding sentence, this Agreement and the Notes embody the entire agreement and
understanding between the Purchasers and the Company and supersede all prior
agreements and understandings relating to the subject matter hereof.
11G. SUCCESSORS AND ASSIGNS. All covenants and other agreements in this
Agreement contained by or on behalf of either of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of the parties
hereto (including, without limitation, any Transferee) whether so expressed or
not.
11H. NOTICES. All written communications provided for hereunder shall
be sent by first class mail or nationwide overnight delivery service (with
charges prepaid) and (i) if to a Purchaser, addressed to it at the address
specified for such communications in the Purchaser Schedule attached hereto, or
at such other address as such Purchaser shall have specified to the Company in
writing, (ii) if to any other holder of any Note, addressed to such other holder
at such address as such other holder shall have specified to the Company in
writing or, if any such other holder shall not have so specified an address to
the Company, then addressed to such other holder in care of the last holder of
such Note which shall have so specified an address to the Company, and (iii) if
to the Company, addressed to it at 900 North Tucker Boulevard, St. Louis,
Missouri 63101, Attention: Senior Vice President-Finance, or at such other
address as the Company shall have specified to the holder of each Note in
writing.
11I. PAYMENTS DUE ON NON-BUSINESS DAYS. Anything in this Agreement or
the Notes to the contrary notwithstanding, any payment of principal of or
interest on any Note that is due on a date other than a Business Day shall be
made on the next succeeding Business Day. If the date for any payment is
extended to the next succeeding Business Day by reason of the preceding
sentence, the period of such extension shall not be included in the computation
of the interest payable on such Business Day.
33
<PAGE> 38
11J. SATISFACTION REQUIREMENT. If any agreement, certificate or other
writing, or any action taken or to be taken, is by the terms of this Agreement
required to be satisfactory to any Purchaser or to the Required Holder(s), the
determination of such satisfaction shall be made by such Purchaser or the
Required Holder(s), as the case may be, in the sole and exclusive judgment
(exercised in good faith) of the Person or Persons making such determination.
11K. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK.
11L. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11M. DESCRIPTIVE HEADINGS. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
11N. COUNTERPARTS. This Agreement may be executed in any number of
counterparts (or counterpart signature pages), each of which counterparts shall
be an original but all of which together shall constitute one instrument.
11O. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is prohibited by
any one of such covenants, the fact that it would be permitted by an exception
to, or otherwise be in compliance within the limitations of, another covenant
shall not (i) avoid the occurrence of an Event of Default or Default if such
action is taken or such condition exists or (ii) in any way prejudice an attempt
by the holders to prohibit (through equitable action or otherwise) the taking of
any action by the Company or a Subsidiary which would result in an Event of
Default or Default.
11P. SEVERALTY OF OBLIGATIONS. The sales of Notes to the Purchasers are
to be several sales, and the obligations of the Purchasers under this Agreement
are several obligations. Except as provided in paragraph 3G, no failure by any
Purchaser to perform its obligations under this Agreement shall relieve any
other Purchaser or the Company of any of its obligations hereunder, and no
Purchaser shall be responsible for the obligations of, or any action taken or
omitted by, any other Purchaser hereunder.
11Q. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. The Company hereby
irrevocably submits to the jurisdiction of any New York state or Federal court
sitting in New York in any action or proceeding arising out of or relating to
this Agreement, and the Company hereby irrevocably agrees that all claims in
respect of such action or proceeding may
34
<PAGE> 39
be heard and determined in New York state or Federal court. The Company hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding. The
Company agrees and irrevocably consents to the service of any and all process in
any such action or proceeding by the mailing, by registered or certified U.S.
mail, or by any other means or mail that requires a signed receipt, of copies of
such process to the Company at its address set forth in paragraph 11H, and
hereby appoints such Person as its agent to receive such service of process. The
Company agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this paragraph 11Q shall affect
the right of any holder of the Notes to serve legal process in any other manner
permitted by law or affect the right of any holder of the Notes to bring any
action or proceeding against the Company or its property in the courts of any
other jurisdiction. To the extent that the Company has or hereafter may acquire
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Agreement.
11R. WAIVER OF JURY TRIAL. THE COMPANY AND THE HOLDERS OF THE NOTES
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION AND THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER
IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. THE HOLDERS OF THE NOTES AND THE COMPANY
EACH ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS
BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING
INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. THE HOLDERS OF THE NOTES AND THE COMPANY FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL,
AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
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<PAGE> 40
Please sign the form of acceptance on the enclosed counterpart of this
letter and return the same to the Company, whereupon this letter shall become a
binding agreement between the Company and each Purchaser.
Very truly yours,
ST. LOUIS POST-DISPATCH LLC
By:/s/ Robin L. Spears
----------------------------
Name: Robin L. Spears
Title: Vice-President - Finance
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Chris Busbee
-----------------------------
Name: R. Chris Busbee
Title: Vice-president
AMERICAN GENERAL ANNUITY INSURANCE COMPANY
AMERICAN GENERAL LIFE INSURANCE COMPANY
By: /s/ C. Scott Inglis
-----------------------------
Name: C. Scott Inglis
Title: Investment Officer
<PAGE> 41
GE EDISON LIFE INSURANCE COMPANY
By: /s/ William R. Wright
-----------------------------
Name: William R. Wright
Title: Chief Investment Officer
FIRST COLONY LIFE INSURANCE COMPANY
By: /s/ Morian Mooers
----------------------------
Name: Morian Mooers
Title: Assistant Vice President
and Investment Officer
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ A. Kipp Koester
-----------------------------
Name: A. Kipp Koester
Its Authorized Representative
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
FOR ITS GROUP ANNUITY SEPARATE ACCOUNT
By: Northwestern Investment Management
Company
By: /s/ A. Kipp Koester
------------------------
Name: A. Kipp Koester
Its Managing Director
<PAGE> 42
PACIFIC LIFE INSURANCE COMPANY
By: /s/ Diane W. Dales
-----------------------------
Name: Diane W. Dales
Title: Assistant Vice President
By: /s/ Audrey L. Milfs
-----------------------------
Name: Audrey L. Milfs
Title: Corporate Secretary
<PAGE> 43
EXHIBIT A
[FORM OF NOTE]
ST. LOUIS POST-DISPATCH LLC
8.05% SENIOR NOTE DUE APRIL 28, 2009
No. [DATE]
---------
$ PPN 85229* AA4
-----------
FOR VALUE RECEIVED, the undersigned, ST. LOUIS POST-DISPATCH LLC (the
"COMPANY"), a limited liability company organized and existing under the laws of
the State of Delaware, hereby promises to pay to ,
or registered assigns, the principal sum of
DOLLARS on , , with interest (computed on the basis
of a 360-day year--30-day month) (a) on the unpaid balance thereof at the rate
of 8.05% per annum from the date hereof, payable quarterly on the 28th day of
January, April, July and October in each year, commencing with the January,
April, July or October next succeeding the date hereof, until the principal
hereof shall have become due and payable, and (b) on any overdue payment of
principal, any overdue payment of interest and any overdue payment of any
Yield-Maintenance Amount (as defined in the Note Agreement referred to below),
payable quarterly as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the greater
of (i) 9.05% or (ii) 1.0% over the rate of interest publicly announced by The
Bank of New York from time to time in New York City as its prime rate.
Payments of principal of, interest on and any Yield-Maintenance Amount
payable with respect to this Note are to be made at the main office of The Bank
of New York in New York City or at such other place as the holder hereof shall
designate to the Company in writing, in lawful money of the United States of
America.
This Note is one of a series of Senior Notes (the "NOTES") issued
pursuant to a Note Agreement, dated as of May 1, 2000 (the "AGREEMENT"), among
the Company and the original purchasers of the Notes named in the Purchaser
Schedule attached thereto and is entitled to the benefits thereof and to the
benefits of the Guaranty Agreement (as defined in the Agreement). Each holder of
this Note will be deemed, by its acceptance hereof, to have made the
representation set forth in paragraph 9B of the Agreement on the date of its
purchase of this Note with respect to the source of the funds used by it to
purchase this Note.
<PAGE> 44
This Note is a registered Note and, as provided in the Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the registered
holder hereof or such holder's attorney duly authorized in writing, a new Note
for a like principal amount will be issued to, and registered in the name of,
the transferee. Prior to due presentment for registration of transfer, the
Company may treat the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other purposes, and the
Company shall not be affected by any notice to the contrary.
This Note is subject to optional prepayment, in whole or from time to
time in part, on the terms specified in the Agreement.
In case an Event of Default, as defined in the Agreement, shall occur
and be continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner and with the effect provided in the
Agreement.
THIS NOTE IS INTENDED TO BE PERFORMED IN THE STATE OF NEW YORK AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW OF SUCH
STATE.
ST. LOUIS POST-DISPATCH LLC
By:
------------------------
Title:
---------------------
A-2
<PAGE> 45
EXHIBIT B
[FORM OF FUNDS DELIVERY INSTRUCTION]
[Company's Letterhead]
[NAMES AND ADDRESSES OF ALL PURCHASERS]
Re: Funds Delivery Instruction
Ladies and Gentlemen:
As contemplated by paragraph 2 of the Note Agreement, dated as
of May 1, 2000, among us, the undersigned hereby instructs you to deliver, on
the date of closing, the proceeds of the Notes in the manner required by
paragraph 2 to the undersigned's account identified below:
Account Name:
Account No:
Bank:
Bank City & State:
Bank ABA No:
Reference:
This instruction has been executed and delivered by an authorized
representative of the undersigned.
Very truly yours,
ST. LOUIS POST-DISPATCH LLC
By:
-----------------------------
Title:
<PAGE> 46
EXHIBIT C
[FORM OF OPINION OF COUNSEL TO COMPANY AND GUARANTOR]
May 1, 2000
Each of the Purchasers named on
the Purchaser Schedule attached
to the below-described Note Agreement
Ladies and Gentlemen:
We have acted as counsel for St. Louis Post-Dispatch LLC, a Delaware
limited liability company (the "Company"), and Pulitzer Inc., a Delaware
corporation (the "Guarantor"), in connection with (i) the Note Agreement, dated
as of May 1, 2000, among the Company and each of you (the "Note Agreement"),
pursuant to which the Company has issued to you today its 8.05% Senior Notes due
April 28, 2009 in the aggregate principal amount of $306,000,000, and (ii) the
Guaranty Agreement, dated as of May 1, 2000, executed and delivered by the
Guarantor in favor of the holders of the Notes (the "Guaranty Agreement"). All
terms used herein that are defined in the Note Agreement have the respective
meanings specified in the Note Agreement. This letter is being delivered to you
in satisfaction of the condition set forth in paragraph 3A(iii) of the Note
Agreement and with the understanding that you are purchasing the Notes in
reliance, in part, on the opinions expressed herein.
In this connection, we have examined the Note Agreement, the
Notes and the Guaranty Agreement (collectively, the "Financing Documents"). In
connection with this opinion, we have reviewed such certificates of public
officials, such certificates and other instruments of officers of the Company
and the Guarantor, and originals or copies certified or otherwise identified to
our satisfaction of all such limited liability company records and papers of the
Company, corporate records and papers of the Guarantor, and of all such other
documents, records and papers, and such questions of law, as we have deemed
relevant and necessary as a basis for our opinion hereinafter set forth. We have
relied, to the extent that we deem such reliance proper, upon certificates of
public officials, upon certificates of officers of the Company and the Guarantor
and upon the representations and warranties contained in or made pursuant to the
Loan Documents, including the representation made by each of you in paragraph 9A
of the Note Agreement, in each case with respect to the accuracy of factual
matters contained therein which were not independently established.
<PAGE> 47
Each of the Purchasers named on the Purchaser Schedule
attached to the Note Agreement
May 1, 2000
Page 2
In such examination, we have assumed the genuineness of all
signatures, except the signatures on the Financing Documents by any officer of
the Company or the Guarantor, and the authenticity of all documents submitted to
us as originals and the conformity with the originals of all documents submitted
to us as copies. We also assumed that:
(a) each Purchaser has been duly organized and is validly existing
under the laws of the jurisdiction of its organization;
(b) the Note Agreement has been duly authorized, executed and delivered
by each Purchaser;
(c) each Purchaser has corporate or equivalent power and authority and
legal capacity to execute, deliver and perform, and may lawfully perform its
obligations under, the Note Agreement; and
(d) the Note Agreement is the legal, valid and binding obligation of
each Purchaser enforceable against such Purchaser in accordance with its terms,
and does not breach, violate or conflict with any agreement or the laws or
governmental rules and regulations of any jurisdiction or authority.
Based on the foregoing and subject to the exceptions, limitations and
qualifications set forth herein, it is our opinion that:
1. The Company is a limited liability company duly organized and
validly existing in good standing under the laws of the State of Delaware.
2. The Guarantor is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware.
3. The Company has the limited liability company power and authority to
carry on its business as now being conducted, and to execute, deliver and
perform the Financing Documents to which it is a party, and is duly qualified as
a foreign limited liability company and in good standing in each jurisdiction
where the nature of the business transacted or properties owned by it makes such
qualification necessary, except where the failure to so qualify will not have a
material adverse effect on the Company and its Subsidiaries taken as a whole.
<PAGE> 48
Each of the Purchasers named on the Purchaser Schedule
attached to the Note Agreement
May 1, 2000
Page 3
4. The Guarantor has the corporate power and authority to carry on its
business as now being conducted, and to execute, deliver and perform the
Financing Documents to which it is a party, and is duly qualified as a foreign
corporation and in good standing in each jurisdiction where the nature of the
business transacted or properties owned by it makes such qualification
necessary, except where the failure to so qualify will not have a material
adverse effect on the Guarantor and its Subsidiaries taken as a whole.
5. The Note Agreement and the Notes have been duly authorized by all
requisite action and duly executed and delivered by authorized officers of the
Company, and are valid obligations of the Company, legally binding upon and
enforceable against the Company in accordance with their respective terms, and
the Notes are entitled to the benefits of the Note Agreement.
6. The Guaranty Agreement has been duly authorized by all requisite
corporate action and duly executed and delivered by authorized officers of the
Guarantor, and is the valid obligation of the Guarantor, legally binding upon
and enforceable against the Guarantor in accordance with its terms.
7. It is not necessary in connection with the offering, issuance, sale
and delivery of the Notes under the circumstances contemplated by the Note
Agreement to register the Notes under the Securities Act of 1933, as amended, or
to qualify an indenture in respect of the Notes under the Trust Indenture Act of
1939, as amended.
8. The extension, arranging and obtaining of the credit represented by
the Notes do not result in any violation of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
9. The execution and delivery of the Note Agreement and the Notes, the
offering, issuance and sale of the Notes and fulfillment of and compliance with
the respective provisions of the Note Agreement and the Notes do not conflict
with, or result in a breach of the terms, conditions or provisions of, or
constitute a default under, or result in any violation of, or result in the
creation of any Lien upon any of the properties or assets of the Company or any
of its Subsidiaries pursuant to, or require any authorization, consent,
approval, exemption or other action by or notice to or filing with any court,
administrative or governmental body or other Person (other than routine filings
after the date hereof with the Securities and Exchange Commission and/or state
Blue Sky authorities) pursuant to, the limited liability company agreement or
other organizational documents of the Company or any of its Subsidiaries, any
applicable law (including any securities or Blue Sky law), statute, rule or
regulation or (insofar as is known to us after having made due inquiry with
respect
<PAGE> 49
Each of the Purchasers named on the Purchaser Schedule
attached to the Note Agreement
May 1, 2000
Page 4
thereto and insofar as is material to the Company and its Subsidiaries, taken as
a whole) any agreement, instrument, order, judgment or decree to which the
Company or any of its Subsidiaries is a party or otherwise subject.
10. The execution and delivery of the Guaranty Agreement and
fulfillment of and compliance with the provisions of the Guaranty Agreement do
not conflict with, or result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in any violation of, or result in
the creation of any Lien upon any of the properties or assets of the Guarantor
or any of its Subsidiaries pursuant to, or require any authorization, consent,
approval, exemption or other action by or notice to or filing with any court,
administrative or governmental body or other Person (other than routine filings
after the date hereof with the Securities and Exchange Commission and/or state
Blue Sky authorities) pursuant to the charter, by-laws or other organizational
documents of the Guarantor or any of its Subsidiaries, any applicable law
(including any securities or Blue Sky law), statute, rule or regulation or
(insofar as is known to us after having made due inquiry with respect thereto
and insofar as is material to the Guarantor and its Subsidiaries, taken as a
whole) any agreement, instrument, order, judgment or decree to which the
Guarantor or any of its Subsidiaries is a party or otherwise subject.
The opinions expressed herein are subject to the following exceptions,
limitations and qualifications:
A. The opinions in numbered paragraphs 1 through 4 above are based on
certificates of recent date of public officials and certificates of officers of
the Company and the Guarantor.
B. The opinions in numbered paragraphs 5 and 6 above are subject to the
exception that the enforceability of the Financing Documents may be limited by
(a) any applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent
transfer, liquidation, reorganization, moratorium or similar laws (including
court decisions) from time to time in effect affecting generally the enforcement
of creditors' rights and remedies or providing for the relief of debtors, (b)
general principles of equity (regardless of whether such enforceability is
sought at law or in equity), and (c) an implied covenant of good faith and fair
dealing.
C. When a matter herein is stated to be "known to us" or "to our
knowledge," we have not undertaken (a) any examination of courts, public
records, judgments, decrees or orders applicable to the Guarantor, the Company
or their respective Subsidiaries, (b) any other special investigation, or (c)
any inquiry of any Person other than the Company or the Guarantor and attorneys
of this Firm currently handling matters for the Guarantor, the Company and their
respective Subsidiaries;
<PAGE> 50
Each of the Purchasers named on the Purchaser Schedule
attached to the Note Agreement
May 1, 2000
Page 5
provided, however, that nothing has come to our attention that leads us to
believe that the matter is other than as stated herein.
D. Our opinions in paragraphs 9 and 10 as to laws, statutes, rules or
regulations are subject to the limitation that we express no opinion with
respect to compliance with the anti-fraud provisions of applicable federal or
state securities laws, rules or regulations.
The opinions expressed herein are limited exclusively to the laws of
the State of New York, the Limited Liability Company Act and General Corporation
Law of the State of Delaware, and federal law.
The opinions expressed herein are for the sole benefit of, and may be
relied upon by, each of you and those Persons who become holders from time to
time of the Notes in accordance with the Note Agreement. Such reliance is
limited to the transactions contemplated by the Note Agreement, and the opinions
expressed herein are limited to the law existing on the date hereof. In
rendering these opinions, we do not undertake to advise the Persons who may rely
on this opinion of any change in law or fact that may occur after the date
hereof.
Very truly yours,
Fulbright & Jaworski L.L.P.
<PAGE> 51
EXHIBIT D
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
(PULITZER INC.)
[FOR THE FISCAL QUARTER ENDING ___________]
[FOR THE FISCAL YEAR ENDING ___________]
To: Each holder of those certain 8.05% Senior Notes due April 28, 2009
issued by St. Louis Post-Dispatch LLC, a Delaware limited liability
company (the "COMPANY"), pursuant to that certain Note Agreement dated
as of May 1, 2000 (as amended, restated, supplemented or otherwise
modified from time to time, the "NOTE AGREEMENT") among the Company and
the Purchasers listed on the Purchaser Schedule thereto.
As required by Section 4.1 of that certain Guaranty Agreement
dated as of even date with the Note Agreement (as amended, restated,
supplemented or otherwise modified from time to time, the "GUARANTY AGREEMENT"),
executed by Pulitzer Inc., a Delaware corporation and the sole managing member
of the Company (the "GUARANTOR"), for the benefit of the holders of the Notes
(all capitalized terms used and not otherwise defined in this Compliance
Certificate have the respective meanings ascribed to them in the Guaranty
Agreement), the undersigned certifies as follows:
(1) The undersigned is the duly elected, qualified and acting
[PRESIDENT][VICE PRESIDENT][TREASURER] of the Guarantor.
(2) In the undersigned's capacity as an officer of the
Guarantor, the undersigned has made, or caused to be made under his supervision,
a review in reasonable detail of the transactions and the financial condition of
the Guarantor and its Subsidiaries and has determined that the Guarantor has
observed or performed in all material respects all of its covenants and other
agreements, and satisfied every condition, contained in the Guaranty Agreement
to be observed, performed or satisfied by it on or before the date hereof, and
as of the date hereof, no Default or Event of Default has occurred and is
continuing[, EXCEPT AS SET FORTH IN PARAGRAPH (3) BELOW].
[(3) BELOW (OR IN A SEPARATE SCHEDULE TO THIS COMPLIANCE
CERTIFICATE) ARE THE EXCEPTIONS, IF ANY, TO PARAGRAPH (2), LISTING, IN DETAIL,
THE NATURE OF EACH CONDITION OR EVENT WHICH CONSTITUTES A DEFAULT OR EVENT OF
DEFAULT, THE PERIOD DURING WHICH SUCH EVENT OR CONDITION HAS EXISTED AND THE
ACTION WHICH THE GUARANTOR HAS TAKEN, IS TAKING, OR PROPOSES TO TAKE WITH
RESPECT TO EACH SUCH CONDITION OR EVENT.]
([3] [4]) WITH RESPECT TO THE FINANCIAL STATEMENTS REFERRED
TO IN CLAUSE (I) OF SECTION 4.1 OF THE GUARANTY AGREEMENT, WHICH ARE DELIVERED
CONCURRENTLY WITH THE
<PAGE> 52
DELIVERY OF THIS COMPLIANCE CERTIFICATE, THE UNDERSIGNED HEREBY CONFIRMS THAT
SUCH FINANCIAL STATEMENTS OF THE GUARANTOR AND ITS SUBSIDIARIES HAVE BEEN
PREPARED IN ACCORDANCE WITH GAAP APPLIED CONSISTENTLY THROUGHOUT THE PERIOD
INVOLVED, AND THE COVENANTS FROM THE GUARANTY AGREEMENT LISTED AND CALCULATED ON
ANNEX A ATTACHED HERETO ARE BASED ON SUCH FINANCIAL STATEMENTS.]
[([3] [4]) WITH RESPECT TO THE FINANCIAL STATEMENTS REFERRED
TO IN CLAUSE (II) OF SECTION 4.1 OF THE GUARANTY AGREEMENT, WHICH ARE DELIVERED
CONCURRENTLY WITH THE DELIVERY OF THIS COMPLIANCE CERTIFICATE, THE UNDERSIGNED
HEREBY CONFIRMS THAT SUCH FINANCIAL STATEMENTS OF THE GUARANTOR AND ITS
SUBSIDIARIES, INCLUDING THE RELATED NOTES AND SCHEDULES THERETO, HAVE BEEN
PREPARED IN ACCORDANCE WITH GAAP APPLIED CONSISTENTLY THROUGHOUT THE PERIODS
INVOLVED, AND THE COVENANTS FROM THE GUARANTY AGREEMENT LISTED AND CALCULATED ON
ANNEX A ATTACHED HERETO ARE BASED ON SUCH FINANCIAL STATEMENTS.]
([4] [5]) The undersigned hereby certifies that described
below in reasonable detail are the adjustments, if any, necessary to derive the
information set forth in Annex A from the financial statements referred to in
paragraph ([3][4]) above.
-------------------------------------
[NAME], [TITLE]
2
<PAGE> 53
ANNEX A
COVENANTS
<TABLE>
<CAPTION>
COVENANTS Compliance
- --------- [Indicate Yes/No]
<S> <C> <C>
1. Consolidated Debt to EBITDA Ratio (Section 5.1(i))
--------------------------------------------------
The ratio of
(i) Consolidated Debt(1) as of the last day of the
fiscal quarter most recently ended to $
-------------
(ii) EBITDA(2) for the four fiscal quarters most
recently ended $
-------------
must not be greater than 4.25 to 1.00
to 1.00 -------------
-------
2. Consolidated Net Worth (Section 5.1(ii))
----------------------------------------
Commencing with the fiscal quarter ending June 30, 2000, Consolidated
Net Worth(3) as of the last day of the fiscal quarter most recently
ended $
-------------
must not be less than (a) $650,000,000 plus (b) the product of $
------------- -------------
(x) $3,750,000 multiplied by (y) the number of fiscal quarters
that have ended since the Date of Closing, to and including the
fiscal quarter ended on such measurement date
3. Limitation on Priority Debt (Section 5.3)
-----------------------------------------
Priority Debt(4) (including Debt secured by Liens permitted by $
-------------
Section 5.2)
Capitalization(5) as of the last day of the fiscal quarter most
recently ended $
-------------
Percentage of Capitalization as of the last day of the fiscal
quarter most recently ended %
-------------
must not exceed 15% of Capitalization as of the last day of the
fiscal quarter most recently ended -------------
4. Loans, Advances and Investments (Section 5.4)
---------------------------------------------
The Guarantor will not, and will not permit any Subsidiary to, make or
permit to remain outstanding any loan or advance to, or own, purchase
or acquire any stock, obligations or securities of, or any interest
in, or make any capital contribution
</TABLE>
- -------------------------------
(1) See Schedule 1, Item 1.
(2) See Schedule 1, Item 2.
(3) See Schedule 1, Item 3.
(4) See Schedule 1, Item 4.
(5) See Schedule 1, Item 5
A-1
<PAGE> 54
to, any Person, except that the Guarantor or any Subsidiary may:
(i) make or permit to remain outstanding loans, advances or capital
contributions to any Subsidiary;
(ii) make or permit to remain outstanding any loans, advances or
capital contributions from (a) any Subsidiary other than the Company to the
Guarantor or any other Subsidiary and (b) the Company to any Subsidiary of
the Company;
(iii) own, purchase or acquire stock, obligations or securities of or
other equity interests in a Subsidiary or a Person which immediately after
such purchase or acquisition will be a Subsidiary;
(iv) make and permit to remain outstanding investments in notes
receivable which are received pursuant to (a) the sale of all or
substantially all of a business or operations or (b) the sale of used
equipment in the ordinary course of business, but in each case only to the
extent that the aggregate uncollected amount of all such notes receivable
does not exceed $500,000;
(v) make and permit to remain outstanding loans, advances and other
investments in any business principally engaged in publishing (print or
electronic), provided that all such loans, advances and other investments
to or in entities which are not Subsidiaries do not in the aggregate
exceed 10% of Capitalization;
(vi) make and permit to remain outstanding loans, advances and other
investments received in settlement of debts (created in the ordinary course
of business) owing to the Guarantor or any Subsidiary,
(vii) own, purchase or acquire commercial paper issued by any
corporation or bankers' acceptances issued by any member bank of the
Federal Reserve System, in either case, maturing within one year of the
date of purchase and rated, by at least two of Standard & Poor's Ratings
Group, Moody's Investors Service, Inc. and Fitch Investors Service, Inc.,
"A-1", "P-1" and "F-1", respectively, and payable in the United States in
United States dollars;
(viii) own, purchase or acquire certificates of deposit in member
banks of the Federal Reserve System (each having capital resources in
excess of $75,000,000) or certificates of deposit in an aggregate amount
not to exceed $2,000,000 in banks having capital resources of less than
$75,000,000), all due within one year from the date of original issue
thereof and payable in the United States in United States dollars;
(ix) own, purchase or acquire repurchase agreements of member banks
of the Federal Reserve System (each having capital resources in excess of
$75,000,000) for terms of less than one year in respect of the foregoing
certificates and obligations;
(x) own, purchase or acquire obligations of the
A-2
<PAGE> 55
United States government or any agency thereof;
(xi) own, purchase or acquire obligations guaranteed by the United
States government or any agency thereof;
(xii) investments in stocks of investment companies registered under
the Investment Company Act of 1940 which invest primarily in obligations
of the type described in clauses (vii), (viii), (ix), (x) or (xi) above,
provided that any such investment company shall have an aggregate net
asset value of not less than $500,000,000;
(xiii) own, purchase or acquire investments in money market mutual
funds that are classified as current assets in accordance with generally
accepted accounting principles, that are rated "AAAm" by Standard & Poor's
Ratings Group and that invest solely in investments described in clauses
(vii), (viii), (ix), (x) or (xi) above, which funds are managed by Persons
having capital and surplus in excess of $500,000,000;
(xiv) endorse negotiable instruments for collection in the ordinary
course of business;
(xv) make or permit to remain outstanding travel and other like
advances to officers and employees in the ordinary course of business;
(xvi) make or permit to remain outstanding investments in demand
deposit accounts maintained by the Guarantor or any Subsidiary in the
ordinary course of its business;
(xvii) make or permit to remain outstanding investments consisting
of Eurodollar time deposits, maturing within 90 days after the making
thereof, with any branch of a United States commercial bank having capital
and surplus of not less than $1 billion in the aggregate;
(xviii) make or permit to remain outstanding investments in
municipal obligations having a rating of "Aaa" by Moody's Investors
Service, Inc., or "AAA" by Standard & Poor's Ratings Group;
(xix) permit to remain outstanding investments of the Guarantor and
its Subsidiaries set forth on Schedule 5.4;
(xx) own, purchase or acquire (a) asset-backed securities, mortgage-
backed securities and collateralized mortgage obligations issued by any
entity and rated at least AA3 by Moody's Investors Service, Inc. or Aa- by
Standard & Poor's Ratings Group and (b) notes and bonds issued by any
domestic corporate issuer and rated at least A3 by Moody's Investors
Service, Inc. or A- by Standard & Poor's Ratings Group; and
A-3
<PAGE> 56
(xxi) make or permit to remain outstanding any other loan or advance
to, or own, purchase or acquire any other stock, obligations or securities
of, or any other interest in, or make any other capital contribution to
any Person, provided that the aggregate amount thereof does not at any
time exceed 6% of Consolidated Net Worth as of the last day of then most
recently ended fiscal quarter.
<TABLE>
<S> <C> <C>
$
-------------
Consolidated Net Worth $
-------------
Percentage of Consolidated Net Worth %
-------------
(xxi) must not exceed 6% of Consolidated
Net Worth -------------
</TABLE>
5. Limitation on Sale or Disposition of Capital Assets (Section 5.5)
The Guarantor will not, and will not permit any Subsidiary to, sell or
dispose of capital assets (including capital stock or other equity
interests) outside the ordinary course of business if the aggregate of
capital assets so sold or disposed of in any fiscal year involves assets
totaling 10% or more of Consolidated Total Assets at the beginning of such
fiscal year or has contributed 10% or more of EBITDA for any of the three
fiscal years then most recently ended (or such shorter period during which
such assets were owned by the Guarantor or a Subsidiary), unless either (i)
the net proceeds (including the cash value of any securities received but
deducting all expenses of sale and sales and transfer taxes and applicable
Federal and state income taxes) from such sale or disposition are within 12
months from receipt invested in businesses substantially similar to any
line of business in which the Guarantor or any Subsidiary has been
continuously engaged since the date of issuance of the Notes or (ii) within
12 months after receipt of such net proceeds, an amount equal to such net
proceeds is applied to the pro rata prepayment (based on outstanding
principal amounts) of (a) the principal of the Notes then outstanding (in
accordance with paragraph 4A of the Note Agreement, and together with all
accrued interest on, and Yield-Maintenance Amount, if any, payable with
respect to, the Notes) and (b) all other Debt of the Guarantor and its
Subsidiaries consisting of obligations for borrowed money.
Aggregate of capital assets sold or disposed of outside of the ordinary
course of business during the fiscal year in which the period covered by
this Compliance Certificate occurs
<TABLE>
<S> <C>
$
-------------
Consolidated Total Assets at beginning of such fiscal year $
-------------
%
Percentage of Consolidated Total Assets at the beginning of such -------------
fiscal year
EBITDA for each of the three fiscal years then most
recently ended $
-------------
$
-------------
$
-------------
</TABLE>
A-4
<PAGE> 57
<TABLE>
<S> <C>
Percentage of EBITDA for each such year contributed by assets %
sold or disposed of -------------
%
-------------
%
-------------
must not involve assets totaling 10% or more of Consolidated Total Assets
at the beginning of such fiscal year or contributing 10% or more of EBITDA
for any of the three fiscal years then most recently ended (or such shorter
period during which such assets were owned by the Guarantor or a
Subsidiary) UNLESS, (i) the net proceeds (including the cash value of any
securities received but deducting all expenses of sale and sales and
transfer taxes and applicable Federal and state income taxes) from such
sale or disposition are within 12 months from receipt invested in
businesses substantially similar to any line of business in which the
Guarantor or any Subsidiary has been continuously engaged since the date of
issuance of the Notes or (ii) within 12 months after receipt of such net
proceeds, an amount equal to such net proceeds is applied to the pro rata
prepayment (based on outstanding principal amounts) of (a) the principal of
the Notes then outstanding (in accordance with paragraph 4A of the Note
Agreement, and together with all accrued interest on, and Yield-Maintenance
Amount, if any, payable with respect to, the Notes) and (b) all other Debt
of the Guarantor and its Subsidiaries consisting of obligations for
borrowed money.
-------------
6. Limitations on Sale and Leaseback (Section 5.6)
The Guarantor will not, and will not permit any Subsidiary to, enter into
any arrangement with any lender or investor or under which such lender or
investor is a party, providing for the leasing or other similar arrangement
by the Guarantor or any Subsidiary of real or personal property used by the
Guarantor or any Subsidiary in the operations of the Guarantor or any
Subsidiary, which has been or is sold or transferred by the Guarantor or
any Subsidiary to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor on the security
of such rental obligations of the Guarantor or such Subsidiary, EXCEPT that
the Guarantor or any Subsidiary (other than the Company) may enter into
sale and lease-back transactions involving newspaper equipment or
facilities acquired after the issuance of the Notes if (i) such arrangement
is for a period of less than three years by the end of which the use of
such property by the lessee will be discontinued, (ii) the net proceeds of
such sale are applied to the retirement of Debt, (iii) the net proceeds of
the sale are used to purchase other property having a value at least equal
to such net proceeds, (iv) the property immediately prior to such sale
could have been subjected to a Lien securing Debt in an amount equal to
such net proceeds and which Lien would have been permitted by clause (xi)
of Section 5.2, or (v) the transaction represents a sale by a Subsidiary
(other than the Company) to the Guarantor or another Subsidiary or by the
Guarantor to a Subsidiary.
-------------
</TABLE>
A-5
<PAGE> 58
7. Limitation on Sale of Stock and Debt of Subsidiaries (Section 5.9)
The Guarantor will not, and will not permit any Subsidiary to, sell or
otherwise dispose of, or part with control of, any shares of stock of (or
other equity interests in) or Debt of any Subsidiary, except that shares of
stock of (or other equity interests in) or Debt of any Subsidiary (other
than the Company) may be sold or otherwise disposed of to the Guarantor or
another Subsidiary, and except that all shares of stock of (or other equity
interests in) and Debt of any Subsidiary (other than the Company) at the
time owned by or owed to the Guarantor or any Subsidiary may be sold as an
entirety for a cash consideration which represents the fair market value
(as determined in good faith by the Board of Directors of the Guarantor) at
the time of sale of the shares of stock or other equity interests and Debt
so sold, provided that the assets of such Subsidiary do not constitute more
than 10% of Consolidated Total Assets at the beginning of the fiscal year
in which such sale or disposition is to occur and that such Subsidiary
shall not have contributed more than 10% of EBITDA for any of the three
fiscal years then most recently ended, unless such transaction shall be
subject to, and in compliance with, Section 5.5, and further provided that,
in any event, at the time of sale, such Subsidiary shall not own, directly
or indirectly, any shares of stock of (or other equity interests in) or
Debt of any other Subsidiary (unless all of the shares of stock of (or
other equity interests in) and Debt of such other Subsidiary are owned,
directly or indirectly, by the Guarantor and all Subsidiaries are
simultaneously being sold as permitted by Section 5.9 of the Guaranty).
<TABLE>
<S> <C> <C>
Consolidated Total Assets at beginning of such fiscal year $
-------------
Consolidated Total Assets represented by assets of Subsidiary $
-------------
Percentage of Consolidated Total Assets represented by
assets of Subsidiary %
-------------
EBITDA for each of the three fiscal years then most recently ended $
-------------
$
-------------
$
-------------
%
Percentage of EBITDA for each such year contributed by -------------
%
Subsidiary -------------
%
-------------
the assets of such Subsidiary must not constitute more than 10% of
Consolidated Total Assets at the beginning of the fiscal year in which such
sale or disposition is to occur and such Subsidiary must not have
contributed more than 10% of EBITDA for any of the three fiscal years then
most recently ended, unless such transaction was subject to, and in
compliance with, Section 5.5.
-------------
</TABLE>
8. Issuance of Stock by Subsidiaries (Section 5.10)
The Guarantor will not permit any Subsidiary, the assets of which
constitute more than 10% of Consolidated Total Assets at the beginning of
the fiscal year in which such issuance, sale or disposition is to occur or
which has contributed more than 10% of
A-6
<PAGE> 59
EBITDA for any of the three fiscal years most recently ended, to issue,
sell or dispose of any shares of its stock (of any class) or any other
equity interests except to the Guarantor or another Subsidiary.
<TABLE>
<S> <C> <C>
Consolidated Total Assets at beginning of such fiscal year $
-------------
Consolidated Total Assets represented by assets of Subsidiary $
-------------
Percentage of Consolidated Total Assets represented by assets of %
Subsidiary -------------
EBITDA for each of the three fiscal years then most recently ended $
-------------
$
-------------
$
-------------
Percentage of EBITDA for each such year contributed by Subsidiary %
-------------
%
-------------
%
-------------
the assets of such Subsidiary must not constitute more than 10% of
Consolidated Total Assets at the beginning of the fiscal year in which such
issuance, sale or disposition is to occur and the Subsidiary must not have
contributed more than 10% of EBITDA for any of the three fiscal years -------------
most recently ended.
</TABLE>
A-7
<PAGE> 60
SCHEDULE 1 TO ANNEX A TO COMPLIANCE CERTIFICATE
<TABLE>
<CAPTION>
<S> <C>
1. Consolidated Debt
-----------------
(i) all obligations for borrowed money or obligations
represented by notes payable and drafts accepted representing
extensions of credit, all obligations evidenced by bonds, debentures,
notes or other similar instruments and all obligations upon which
interest charges are customarily paid; $
-------------
(ii) Capitalized Lease Obligations; $
-------------
(iii) indebtedness secured by any Lien existing on property
owned by the Guarantor or any Subsidiary subject to such Lien, whether
or not the indebtedness secured thereby shall have been assumed by the
Guarantor or any Subsidiary; $
-------------
(iv) guarantees, endorsements (other than endorsements of
negotiable instruments for collection in the ordinary course of
business) and other contingent liabilities (whether direct or indirect)
in connection with the obligations, stock or dividends of any Person; $
-------------
(v) obligations under any contract providing for the making
of loans, advances or capital contributions to any Person, or for the
purchase of any property from any Person, in each case in order to
enable such Person primarily to maintain working capital, net worth or
any other balance sheet condition or to pay debt, dividends or
expenses; $
-------------
(vi) obligations under any contract for the purchase of
materials, supplies or other property from any Person if such contract
(or any related document) requires that payment for such materials,
supplies or other property shall be made regardless of whether or not
delivery of such materials, supplies or other property is ever made or
tendered; $
-------------
(vii) obligations under any contract to rent or lease (as
lessee) any real or personal property if such contract (or any related
document) provides that the obligation to make payments thereunder is
absolute and unconditional under conditions not customarily found in
commercial leases then in general use or requires that the lessee
purchase or otherwise acquire securities or obligations of the lessor;
$
-------------
(viii) obligations under any contract for the sale or use
of materials, supplies or other property, or the rendering of services,
if such contract (or any related document) requires that payment for
such materials, supplies or other property, or the use thereof, or
payment for such services, shall be subordinated to any indebtedness
(of the purchaser or user of such materials, supplies or other property
or the Person entitled to the benefit of such services) owed or to be
owed to any Person; $
-------------
(ix) obligations under any other contract which, in economic
effect, is substantially equivalent to a guarantee; $
-------------
SUBTOTAL [(i)+(ii)+(iii)+(iv)+(v)+(vi)+(vii)+(viii)+(ix)] $
-------------
(x) But excluding (a) loans, advances and capital
contributions by the Guarantor to any Subsidiary or by any Subsidiary
to the Guarantor or another Subsidiary or a guarantee of the
obligations of a Subsidiary under an executory contract to purchase or
sell a business and (b) any amounts which may be due in connection with
the "Gross-Up Transactions" described in Note 15 of the audited
consolidated financial statements of the Guarantor and its Subsidiaries
for the fiscal year ended December 31, 1999, as incorporated in the
Guarantor's annual report on Form 10-K filed with the Securities and
Exchange Commission
CONSOLIDATED DEBT [SUBTOTAL above - (x)] $
=============
2. EBITDA
(i) Consolidated Net Earnings (determined as set forth in
Item 2.1 below), $
-------------
</TABLE>
A1-1
<PAGE> 61
<TABLE>
<S> <C>
(ii) plus, to the extent deducted in the determination of
Consolidated Net Earnings,
(a) all provisions for federal, state and other income
tax $
-------------
(b) Consolidated Interest Expense (determined as set
forth in Item 2.2 below) and $
-------------
(c) provisions for depreciation and amortization $
-------------
Subtotal of (a), (b) and (c) $
-------------
EBITDA [(i) + (ii)] $
=============
Note: Any acquisition or disposition by the Guarantor or any
Subsidiary during any period of all of the capital stock of (or other
equity interests in) any Person, or of all or substantially all of the
assets of any Person, shall in each case be reflected and given effect
in EBITDA as if such acquisition or disposition occurred on the first
day of such period, so long as, in the case of any such acquisition,
the Guarantor shall have delivered or caused to be delivered to each
holder of Notes financial information, set forth within audited
financial statements regarding such Person, disclosing the prior
operating results of such Person, and provided further, that for
purposes of calculating EBITDA, the consummation of the
Formation/Consummation Transactions will be taken into account by
including, on a pro forma basis, Herald's share of EBITDA for periods
prior to the Date of Closing, as derived from the "St. Louis Agency
adjustment" reflected in prior consolidated financial statements.
2.1 Consolidated Net Earnings
-------------------------
(i) Consolidated gross revenues of the Guarantor and its
Subsidiaries determined in accordance with generally accepted
accounting principles $
-------------
(ii) less all operating and non-operating expenses of the
Guarantor and its Subsidiaries determined in accordance with generally
accepted less accounting principles $
-------------
CONSOLIDATED NET EARNINGS [(i) - (ii)] $
=============
Note: The above include all charges of a property character (including
current and deferred taxes on income, provision for taxes on
unremitted foreign earnings which are included in gross revenues, and
current additions to reserves), but do not include in gross revenues
any gains --- (net of expenses and taxes applicable thereto) in excess
of losses resulting from the sale, conversion or other disposition of
capital assets (i.e., assets other than current assets) in excess of
an aggregate amount of $5,000,000 in any one year, any gains resulting
from the write-up of assets, any equity of the Guarantor or any
Subsidiary in the unremitted earnings of any corporation which is not
a Subsidiary or any earnings of any Person acquired by the Guarantor
or any Subsidiary through purchase, merger or consolidation or
otherwise for any year prior to the year of acquisition, or any
deferred credit representing the excess of equity in any Subsidiary at
the date of acquisition over the cost of investment in such
Subsidiary.
2.2 Consolidated Interest Expense
-----------------------------
The sum (without duplication) of the following (in each case,
eliminating all offsetting debits and credits between the Guarantor
and its Subsidiaries and all other items required to be eliminated in
the course of the preparation of consolidated financial statements of
the Guarantor and its Subsidiaries in accordance with generally
accepted accounting principles) for the period covered by this
Compliance Certificate for the Guarantor and its Subsidiaries:
(i) all interest and prepayment charges in respect of Debt
of the Guarantor and its Subsidiaries (including imputed interest in
respect of Capitalized Lease obligations and net costs of any interest
rate or currency hedging or similar arrangements) deducted in
determining consolidated net income for such period, together with all
interest capitalized or deferred during
</TABLE>
A1-2
<PAGE> 62
<TABLE>
<S> <C>
such period and not deducted in determining consolidated net income for
such period plus $
-------------
(ii) all debt discount and expense amortized or required to
be amortized in the determination of consolidated net income for such
period $
-------------
CONSOLIDATED INTEREST EXPENSE [(i) + (ii)] $
=============
3. CONSOLIDATED NET WORTH
(i) Total amount of total assets of the Guarantor and its
Subsidiaries as of the last day of the fiscal quarter most recently
then ended, determined on a consolidated basis in accordance with
generally accepted accounting principles less $
-------------
(ii) Total liabilities of the Guarantor and its Subsidiaries
as of the last day of the fiscal quarter most recently then ended,
determined on a consolidated basis in accordance with generally
accepted accounting principles. $
-------------
CONSOLIDATED NET WORTH [(i) - (ii)] $
=============
4. PRIORITY DEBT $
=============
(i) Aggregate amount of all Debt of the Guarantor secured
by a Lien plus $
-------------
(ii) All secured and unsecured Debt of all Subsidiaries
(excluding Debt represented by the Notes) $
-------------
PRIORITY DEBT [(i) + (ii)] $
=============
5. CAPITALIZATION
(i) Consolidated Net Worth plus $
-------------
(ii) Consolidated Debt $
-------------
CAPITALIZATION [(i) + (ii)] $
==============
</TABLE>
A1-3
<PAGE> 63
EXHIBIT E
[FORM OF SUBORDINATED INTERCOMPANY NOTE]
Effective Date: [_____________________].
Maker: ST. LOUIS POST-DISPATCH LLC, a Delaware limited
liability company.
Maker's Mailing Address: 900 North Tucker Boulevard, St. Louis, Missouri
63101.
Payee: PULITZER INC., a Delaware corporation, or its
assigns.
Payee's Mailing Address: 900 North Tucker Boulevard, St. Louis, Missouri
63101.
Place for Payment: Payee's mailing address set forth above or such other
location in the United States of America as the Payee
may from time to time designate.
Maximum Principal Amount: [$_________________________________].
Interest: [____________%, PAYABLE QUARTERLY IN ARREARS
(COMPUTED ON THE BASIS OF A 360-DAY YEAR OF
TWELVE 30-DAY MONTHS) ON THE ______ DAY OF
_______, _________, ___________ AND
_____________, COMMENCING WITH THE ________
DAY OF _______________, ________________,
______________, OR _______________ NEXT
SUCCEEDING THE DATE HEREOF].
Repayment: All advances to the Maker and other amounts
represented by this Subordinated Intercompany Note
shall be due and payable in full on [THE EARLIER OF
(A)] demand [, OR (B) __________].
Advances: The Payee may make advances to the Maker upon the
Maker's written request therefor. All advances of
cash made by the Payee to the Maker hereunder shall
be subject to the conditions set forth below and may,
at the option of the Payee, be recorded by the Payee
on Schedule 1 attached hereto. Recordation of such
advances shall not be necessary but, if made, will be
conclusive evidence of the making of such advances
for the account of the Maker.
FOR VALUE RECEIVED, the Maker promises to pay to the order of the
Payee, in lawful money of the United States of America, in immediately available
funds and in accordance with the repayment terms set forth above, the Maximum
Principal Amount set forth above or, if
<PAGE> 64
less, the unpaid principal amount of all loans and other advances made by the
Payee to the Maker. The Maker also promises to pay interest, in like money and
funds and in accordance with the interest payment terms set forth above, on the
unpaid principal amount of all loans and other advances made by the Payee to the
Maker from the date such loan or advance is made until and including the date
such loan or advance is paid at the rate per annum set forth above.
Additional terms and conditions of this Subordinated Intercompany Note are as
follows:
1. Prepayment. Subject to the terms and conditions set forth
below, the Maker may prepay the full amount or any part of this Subordinated
Intercompany Note at any time and from time to time without notice and without
the payment of any premium, fee or penalty.
2. Default. "EVENT OF DEFAULT" means any one of the following
events:
(a) the default by the Maker in the payment when due of principal,
interest or any other amount payable with regard to this Subordinated
Intercompany Note;
(b) the entry of a decree or order for relief in respect of the Maker
or any affiliate thereof in an involuntary case under the federal bankruptcy
laws, as now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Maker or any affiliate thereof or for any substantial part of their
respective property, or ordering the winding up or liquidation of their
respective affairs;
(c) the commencement by the Maker or any affiliate thereof of a
voluntary case under the federal bankruptcy laws, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or the consent by the Maker or any affiliate
thereof to the appointment to or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of the
Maker or any affiliate thereof for any substantial part of their property, or
the making by either the Maker or any affiliate thereof of any assignment for
the benefit of creditors, or the admission by the Maker or any affiliate thereof
in writing of its inability to pay debts generally as they become due;
(d) any event or condition occurs with respect to any material
indebtedness of the Maker or any affiliate thereof (including but not limited to
the hereinafter defined Senior Debt) or any indebtedness of any other party for
which the Maker or any affiliate thereof is a guarantor or surety or has pledged
any of its assets as security, the effect of which is to cause or to permit the
holder of any such indebtedness to cause the same or any portion thereof to
become due prior to its stated maturity date; or
(e) if the Maker is dissolved, split-up or winds up its affairs.
3. Waivers. The Maker expressly waives demand for payment,
presentment, notice of default, notice of intention to accelerate maturity,
notice of acceleration of maturity, protest
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<PAGE> 65
and notice of protest and any and all other notices or action of any kind as to
this Subordinated Intercompany Note and as to each, every and all installments
or partial payments thereof.
4. Collection Fees. If an Event of Default occurs hereunder and
this Subordinated Intercompany Note is placed in the hands of an attorney for
collection (whether or not suit is filed) or if this Subordinated Intercompany
Note is collected by suit or legal proceedings or through bankruptcy
proceedings, the Maker agrees to pay, in addition to all sums then due hereon,
all expenses of collection, including, without limitation, reasonable attorneys'
fees.
5. Subordination.
(a) The payment of any and all Subordinated Debt (as hereinafter
defined) is expressly subordinated to all Senior Debt (as hereinafter defined)
to the extent and in the manner set forth in this Section 5. As used herein: (i)
the term "SUBORDINATED DEBT" means all amounts outstanding from time to time
under this Subordinated Intercompany Note and any other amounts loaned from or
otherwise advanced by the Maker to the Payee, whether direct, indirect,
contingent, joint, several, or independent, now or hereafter existing, due or to
become due to, or held or to be held by, the Payee, whether created directly or
acquired by assignment or otherwise, and whether or not evidenced by written
instrument (including, without limitation all post-petition interest in the
event of any bankruptcy of the Maker) and all fees and expenses related to or
advanced in connection with the foregoing, and (ii) the term "SENIOR DEBT" means
all indebtedness, liabilities, and obligations of the Maker to any holder or
holders of the Maker's 8.05% Senior Notes due April 28, 2009 (together with any
notes issued in renewal, replacement, restatement, substitution or extensions
thereof, the "SENIOR NOTES") with respect to the Senior Notes, whether direct,
indirect, contingent, joint, several, or independent, now or hereafter existing,
due or to become due, including, without limitation, all outstanding principal,
interest (including, without limitation all post-petition interest in the event
of any bankruptcy of the Maker) and Yield-Maintenance Amount (as defined in the
hereinafter defined Senior Note Agreement), if any, with respect to the Senior
Notes, all amounts payable by the Maker pursuant to or in connection with the
Note Agreement dated as of May 1, 2000 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "SENIOR NOTE
AGREEMENT") among the Maker and the several Purchasers listed in the Purchaser
Schedule attached thereto (pursuant to which the Senior Notes were issued and
sold), and all fees and expenses in connection with the foregoing.
(b) Until the Senior Debt shall be indefeasibly paid and satisfied in
full in cash, the Payee shall not receive or collect, directly or indirectly,
any amount upon the Subordinated Debt; provided, however, that, the Payee may
receive and collect principal and interest in accordance with the principal
repayment and interest payment terms set forth above so long as no Event of
Default of the type described in Section 2(d) with respect to any Senior Debt
has occurred and is then continuing.
(c) The Payee acknowledges and agrees that it has no liens, security
interests, charges, mortgages, chattel mortgages, pledges, encumbrances, or
other interests in any assets of the Maker or its subsidiaries securing the
repayment of Subordinated Debt (collectively, referred
E-3
<PAGE> 66
to herein as a "LIEN"). The Payee further agrees not to acquire, by subrogation,
contract or otherwise, any Lien or other right, title or interest in any of the
assets of the Maker or its subsidiaries (including but not limited to any Liens
which may arise in respect to taxes, assessments or other governmental charges)
to secure the Subordinated Debt. Any Lien granted in violation hereof shall be
null and void, and the Payee shall release the same upon request by the holder
of any Senior Note.
(d) Any payments received by the Payee in violation of the terms hereof
shall be held by the Payee in trust for the holders of the Senior Debt, and the
Payee shall immediately turn over such payments to such holders, in the form
received, to be applied on the Senior Debt.
(e) Unless and until the Senior Debt has been indefeasibly paid in full
in cash, the Payee shall not (i) commence any action or proceeding of any kind
whatsoever against the Maker or any of its assets to recover all or any part of
the Subordinated Debt, or (ii) join with any creditor in bringing any
proceedings against the Maker under any liquidation, conservatorship,
bankruptcy, reorganization, rearrangement, debtor's relief, or other insolvency
law now or hereafter existing.
(f) In the event of any liquidation, conservatorship, bankruptcy,
reorganization, rearrangement, debtor's relief, or other insolvency proceedings
involving the Maker, the Payee will, at the request of any Person designated in
writing by the holders of 51% or more of the aggregate principal amount of the
Senior Notes then outstanding, file any claims, proofs of claim, or other
instruments of similar character necessary to enforce the obligations of the
Maker in respect of the Subordinated Debt and will hold in trust for the holders
of the Senior Debt and pay over to such holders, in the form received, to be
applied on the Senior Debt, any and all moneys, dividends, or other assets
received in any such proceedings on account of the Subordinated Debt, and unless
and until the Senior Debt shall be indefeasibly paid in full in cash, any Person
designated in writing by the holders of 51% or more of the aggregate principal
amount of the Senior Notes then outstanding may, as attorney-in-fact for the
Payee, take such action on behalf of the Payee, and the Payee hereby appoints
each Person so designated as attorney-in-fact for the Payee to demand, sue for,
collect, and receive any and all such moneys, dividends, or other assets and
give acquittance therefor and to file any claim, proof of claim, or other
instrument of similar character and to take such other proceedings in such
Person's name or in the name of the Payee as such Person may deem necessary or
advisable for the enforcement of the agreements contained in this Subordinated
Intercompany Note, and the Payee will execute and deliver to such Person and
each holder of the Senior Notes such other and further powers of attorney or
other instruments as such Person may request in order to accomplish the
foregoing.
(g) So long as any Senior Debt remains unpaid, the Payee will not (i)
amend, modify or alter in any way the terms of the Subordinated Debt or any
document, agreement, instrument or certificate relating thereto (including,
without limitation, this Subordinated Intercompany Note) in a manner to alter
the terms of subordination or to otherwise adversely affect any holder of the
Senior Debt, as determined in such holders' sole discretion; or (ii) exercise
any remedies with respect to any of the Subordinated Debt. The Payee agrees that
it will not challenge, object to or in any respect inhibit or otherwise
interfere with the enforcement by any holder of the
E-4
<PAGE> 67
Senior Debt of any of its rights or remedies in respect of the Senior Debt or
this Subordinated Intercompany Note.
(h) No holder of the Senior Debt shall have any liability to the Payee
with respect to, and the Payee waives any claim or defense which the Payee may
now or hereafter have against any holder of the Senior Debt arising from, (i)
any and all actions which any holder of the Senior Debt takes or omits to take
(including, without limitation, actions with respect to the creation, perfection
or continuation of Liens in any collateral now or hereafter securing any of the
Senior Debt, actions with respect to the occurrence of any default under any
Senior Debt, actions with respect to the foreclosure upon, sale, release of,
depreciation of or failure to realize upon any of such collateral, and actions
with respect to the collection of any claim for all or any part of the Senior
Debt from any account debtor, guarantor or any other Person) with respect to the
Senior Debt or the valuation, use, protection or release of any collateral now
or hereafter securing same; (ii) any right, now or hereafter existing, to
require any holder of the Senior Debt to proceed against or exhaust any
collateral now or at any time hereafter securing the Senior Debt or to marshal
any assets in favor of the Payee; (iii) any notice of the incurrence or increase
of Senior Debt, it being understood that any holder of the Senior Debt may make
advances now or hereafter relating to the Senior Debt, without notice to or
authorization of the Payee, in reliance upon these subordination provisions,
(iv) any defense based upon or arising by reason of (A) any disability or other
defense of the Maker or any other person or entity; (B) any lack of authority of
any agent or any other person or entity acting or purporting to act on behalf of
the Maker or the Payee; or (C) any failure by any holder of the Senior Debt to
properly perfect any Lien in any asset of the Maker; (v) the election by any
holder of the Senior Debt, in any proceeding instituted under Chapter 11 of
Title 11 of the United States Code (11 U.S.C. ss. 101 et seq.) (the "BANKRUPTCY
COde"), of the application of Section 1111(b)(2) of the Bankruptcy Code; and/or
(vi) any borrowing or grant of a security interest under Section 364 of the
Bankruptcy Code.
(i) The holders of the Senior Debt may, at any time and from time to
time, without the consent of or notice to the Payee, without incurring
responsibility to the Payee, and without impairing or releasing, any of its
rights, or any of the obligations of the Payee, (i) change the amount, manner,
place, or terms of payment or change or extend the time of payment of or
increase, renew or alter the Senior Debt, or any part thereof, or enter into or
amend in any manner any agreement (including any related loan agreement,
promissory notes and collateral documents) relating to the Senior Debt; (ii)
sell, exchange, release, or otherwise deal with all or any part of any property
by whomsoever now or at any time hereafter pledged or mortgaged to secure, or
howsoever securing, the Senior Debt, or any part thereof; (iii) release anyone
liable in any manner for the payment or collection of the Senior Debt or any
part thereof; (iv) exercise or refrain from exercising any rights against the
Maker and others (including the Payee); and (v) apply any sums, by whomsoever
paid or however realized, to the Senior Debt.
6. Prohibition on Transfers or Assignments. So long as the Senior
Debt remains outstanding, the Payee shall not transfer or assign this
Subordinated Intercompany Note, without the prior written consent of the holders
of 51% or more of the aggregate principal amount of the Senior Notes then
outstanding.
E-5
<PAGE> 68
7. Third Party Beneficiaries. The holders of the Senior Debt shall be
third party beneficiaries hereunder, and such holders shall be entitled to
enforce the terms of this Subordinated Intercompany Note; provided, however,
that no other creditor of the Payee and no other party acting by or through the
Payee shall have any rights hereunder or shall be entitled to rely hereon. As
used in this Subordinated Intercompany Note, the phrase "holders of the Senior
Debt" includes any transferees from time to time thereof.
8. Notices. Any notice, demand or other communication required or
permitted to be given to any party hereunder shall be in writing, and shall be
deemed to have been delivered when actually received or, regardless of whether
or not received, on the second business day after deposit in the United States
mail, registered or certified mail, return receipt requested, postage prepaid,
addressed to the party at the address set forth above or such other address as
may hereafter be indicated by written notice delivered to the other party in
accordance with the terms hereof.
9. Governing Law. THIS SUBORDINATED INTERCOMPANY NOTE SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
____________ WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICT OF LAWS.
Executed as of the date set forth on the first page of this Subordinated
Intercompany Note.
ST. LOUIS POST-DISPATCH LLC
BY:
-------------------------
Name:
Title:
By its execution below, the Payee consents and agrees to be bound by the
provisions of this Subordinated Intercompany Note applicable to it.
PULITZER INC.
By:
------------------------
Name:
Title:
E-6
<PAGE> 69
Schedule 1
----------
Date Amount Advanced
- ---- ---------------
E-7
<PAGE> 1
EXHIBIT 10.2
EXECUTION VERSION
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PULITZER INC.
---------------
GUARANTY AGREEMENT
---------------
DATED AS OF MAY 1, 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
1. DEFINED TERMS; ACCOUNTING MATTERS.........................................................................1
1.1. Defined Terms.................................................................................1
1.2. Accounting and Legal Principles, Terms and Determinations.....................................5
2. GUARANTY..................................................................................................6
2.1. Guaranty......................................................................................6
2.2. Guaranty of Payment and Performance...........................................................6
2.3. General Provisions Relating to the Guaranty...................................................7
3. REPRESENTATIONS AND WARRANTIES...........................................................................11
3.1. Organization and Qualification; Due Authorization............................................11
3.2. Financial Statements.........................................................................11
3.3. Actions Pending..............................................................................12
3.4. Outstanding Debt.............................................................................12
3.5. Title to Properties..........................................................................12
3.6. Taxes........................................................................................12
3.7. Conflicting Agreements and Other Matters.....................................................13
3.8. ERISA........................................................................................13
3.9. Governmental Consent.........................................................................14
3.10. Disclosure...................................................................................14
3.11. Formation/Contribution Documents.............................................................14
3.12. Solvency.....................................................................................14
3.13. Representations and Warranties in Formation/Contribution Documents...........................14
4. AFFIRMATIVE COVENANTS....................................................................................15
4.1. Financial Statements.........................................................................15
4.2. Inspection of Properties.....................................................................16
4.3. Covenant to Secure Notes Equally.............................................................16
4.4. Business.....................................................................................17
4.5. Compliance with Laws and Regulations.........................................................17
4.6. Patents, Trade Marks and Trade Names.........................................................17
4.7. Payment of Taxes and Other Claims............................................................17
4.8. ERISA Compliance.............................................................................18
5. NEGATIVE COVENANTS.......................................................................................18
5.1. Consolidated Debt to EBITDA and Consolidated Net Worth Requirements..........................18
5.2. Liens........................................................................................18
5.3. Priority Debt................................................................................20
5.4. Loans, Advances and Investments..............................................................20
5.5. Sale or Disposition of Capital Assets........................................................22
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
5.6. Sale and Lease-Back..........................................................................23
5.7. Merger.......................................................................................23
5.8. Transactions With Affiliates.................................................................23
5.9. Sale of Stock and Debt of Subsidiaries.......................................................24
5.10. Issuance of Stock by Subsidiaries............................................................24
5.11. Limitation on Certain Restrictive Agreements.................................................24
5.12. Conforming Debt Agreement Changes............................................................24
6. EVENTS OF DEFAULT; REMEDIES..............................................................................25
6.1. Events of Default............................................................................25
6.2. Remedies.....................................................................................27
7. MISCELLANEOUS............................................................................................27
7.1. Survival of Representations and Warranties; Entire Agreement.................................27
7.2. Consents to Amendments.......................................................................27
7.3. Binding Effect, etc..........................................................................28
7.4. Notices......................................................................................28
7.5. Severability.................................................................................28
7.6. Successors and Assigns.......................................................................28
7.7. Independence of Covenants....................................................................28
7.8. Satisfaction Requirement.....................................................................29
7.9. Counterparts.................................................................................29
7.10. Governing Law................................................................................29
7.11. Consent to Jurisdiction; Waiver of Immunities................................................29
7.12. WAIVER OF JURY TRIAL.........................................................................29
</TABLE>
SCHEDULE 5.4 - EXISTING INVESTMENTS
EXHIBIT A - FORM OF COMPLIANCE CERTIFICATE
ii
<PAGE> 4
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (as amended, restated, supplemented or
otherwise modified from time to time, this "GUARANTY") is made as of May 1, 2000
by PULITZER INC., a Delaware corporation (the "GUARANTOR"), in favor of the
holders from time to time of the Notes issued under the below-described Note
Agreement.
RECITALS
A. St. Louis Post-Dispatch LLC, a Delaware limited liability company
(the "COMPANY"), has entered into that certain Note Agreement dated as of even
date herewith (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "NOTE AGREEMENT") with the several Purchasers
listed in the Purchaser Schedule attached thereto, pursuant to which the Company
has agreed to sell and such Purchasers have agreed to purchase $306,000,000
aggregate principal amount of the Company's 8.05% Senior Notes due April 28,
2009 (together with any other notes issued in substitution or exchange therefor
pursuant to the terms of the Note Agreement, the "NOTES").
B. Upon consummation of the Formation/Contribution Transactions (as
defined in the Note Agreement), the Company will be a Subsidiary of the
Guarantor.
C. It is a condition precedent to the obligation of each Purchaser to
purchase the Notes to be purchased by it under the Note Agreement that this
Guaranty shall have been executed and delivered by the Guarantor and shall be in
full force and effect.
D. The Board of Directors of the Guarantor has determined that the
Guarantor's execution, delivery and performance of this Guaranty may reasonably
be expected to benefit the Guarantor, directly or indirectly, and to be in the
best interests of the Guarantor.
NOW THEREFORE, in order to induce, and in consideration of,
the purchase of the Notes pursuant to the Note Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the Guarantor hereby covenants and agrees with, and represents and warrants to
each holder of Notes, as follows:
1. DEFINED TERMS; ACCOUNTING MATTERS
1.1. DEFINED TERMS. All capitalized terms used herein, unless
specifically otherwise defined, shall have the meanings ascribed to them in the
Note Agreement. In addition, the following terms shall have the meanings
specified with respect thereto below (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
<PAGE> 5
"AFFILIATE" shall mean any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, the Guarantor,
except a Subsidiary. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"BANKRUPTCY LAW" shall have the meaning specified in clause (vi) of
Section 6.
"CAPITALIZATION" shall mean Consolidated Net Worth plus Consolidated
Debt.
"CAPITALIZED LEASE OBLIGATION" shall mean any rental obligation which,
under generally accepted accounting principles, is or will be required to be
capitalized on the books of the Guarantor or any Subsidiary, taken at the amount
thereof accounted for as indebtedness (net of interest expense) in accordance
with such principles.
"CLAIMS" shall have the meaning specified in Section 4.7 of this
Guaranty.
"COMPANY" shall have the meaning specified in Recital A of this
Guaranty.
"CONSOLIDATED DEBT" shall mean, with respect to the Guarantor and its
Subsidiaries on any date of determination, total Debt of the Guarantor and its
Subsidiaries, determined on a consolidated basis in accordance with generally
accepted accounting principles.
"CONSOLIDATED INTEREST EXPENSE" shall mean, with respect to any period,
the sum (without duplication) of the following (in each case, eliminating all
offsetting debits and credits between the Guarantor and its Subsidiaries and all
other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Guarantor and its Subsidiaries in
accordance with generally accepted accounting principles): (i) all interest and
prepayment charges in respect of Debt of the Guarantor and its Subsidiaries
(including imputed interest in respect of Capitalized Lease obligations and net
costs of any interest rate or currency hedging or similar arrangements) deducted
in determining consolidated net income for such period, together with all
interest capitalized or deferred during such period and not deducted in
determining consolidated net income for such period, and (ii) all debt discount
and expense amortized or required to be amortized in the determination of
consolidated net income for such period.
"CONSOLIDATED NET EARNINGS" shall mean, with respect to any period,
consolidated gross revenues of the Guarantor and its Subsidiaries less all
operating and non-operating expenses of the Guarantor and its Subsidiaries
including all charges of a property character (including current and deferred
taxes on income, provision for taxes on unremitted foreign earnings which are
included in gross revenues, and current additions to reserves), but not
including in gross revenues any gains (net of expenses and taxes applicable
thereto) in excess of losses resulting from the sale, conversion or other
disposition of capital assets (i.e., assets other than current assets) in excess
of an aggregate amount of $5,000,000 in any one year, any gains resulting from
the write-up of assets, any equity of the Guarantor or any Subsidiary in the
unremitted earnings of any corporation which is not a Subsidiary or any earnings
of any Person
2
<PAGE> 6
acquired by the Guarantor or any Subsidiary through purchase, merger or
consolidation or otherwise for any year prior to the year of acquisition, or any
deferred credit representing the excess of equity in any Subsidiary at the date
of acquisition over the cost of investment in such Subsidiary; all determined in
accordance with generally accepted accounting principles
"CONSOLIDATED NET WORTH" shall mean, at any time, the total amount of
total assets of the Guarantor and its Subsidiaries over total liabilities of the
Guarantor and its Subsidiaries as of the last day of the fiscal quarter most
recently then ended, determined on a consolidated basis in accordance with
generally accepted accounting principles.
"CONSOLIDATED TOTAL ASSETS" shall mean, on any date of determination,
the total assets of the Guarantor and its Subsidiaries, all consolidated in
accordance with generally accepted accounting principles.
"DEBT" shall mean and include without duplication:
(i) all obligations for borrowed money or obligations
represented by notes payable and drafts accepted representing
extensions of credit, all obligations evidenced by bonds, debentures,
notes or other similar instruments and all obligations upon which
interest charges are customarily paid;
(ii) Capitalized Lease Obligations;
(iii) indebtedness secured by any Lien existing on property
owned by the Guarantor or any Subsidiary subject to such Lien, whether
or not the indebtedness secured thereby shall have been assumed by the
Guarantor or any Subsidiary;
(iv) guarantees, endorsements (other than endorsements of
negotiable instruments for collection in the ordinary course of
business) and other contingent liabilities (whether direct or indirect)
in connection with the obligations, stock or dividends of any Person;
(v) obligations under any contract providing for the making of
loans, advances or capital contributions to any Person, or for the
purchase of any property from any Person, in each case in order to
enable such Person primarily to maintain working capital, net worth or
any other balance sheet condition or to pay debt, dividends or
expenses;
(vi) obligations under any contract for the purchase of
materials, supplies or other property from any Person if such contract
(or any related document) requires that payment for such materials,
supplies or other property shall be made regardless of whether or not
delivery of such materials, supplies or other property is ever made or
tendered;
(vii) obligations under any contract to rent or lease (as
lessee) any real or personal property if such contract (or any related
document) provides that the obligation
3
<PAGE> 7
to make payments thereunder is absolute and unconditional under
conditions not customarily found in commercial leases then in general
use or requires that the lessee purchase or otherwise acquire
securities or obligations of the lessor;
(viii) obligations under any contract for the sale or use of
materials, supplies or other property, or the rendering of services, if
such contract (or any related document) requires that payment for such
materials, supplies or other property, or the use thereof, or payment
for such services, shall be subordinated to any indebtedness (of the
purchaser or user of such materials, supplies or other property or the
Person entitled to the benefit of such services) owed or to be owed to
any Person; and
(ix) obligations under any other contract which, in economic
effect, is substantially equivalent to a guarantee;
provided, however, that Debt shall not include (a) loans, advances and capital
contributions by the Guarantor to any Subsidiary or by any Subsidiary to the
Guarantor or another Subsidiary or a guarantee of the obligations of a
Subsidiary under an executory contract to purchase or sell a business or (b) any
amounts which may be due in connection with the "Gross-Up Transactions"
described in Note 15 of the audited consolidated financial statements of the
Guarantor and its Subsidiaries for the fiscal year ended December 31, 1999, as
incorporated in the Guarantor's annual report on Form 10-K filed with the
Securities and Exchange Commission.
"DEFAULT" shall mean any of the events specified in Section 6.1,
whether or not any requirement for such event to become an Event of Default has
been satisfied.
"EBITDA" means, with respect to the Guarantor and its Subsidiaries for
any period, the sum of (i) Consolidated Net Earnings plus (ii) to the extent
deducted in the determination of Consolidated Net Earnings, (a) all provisions
for federal, state and other income tax, (b) Consolidated Interest Expense and
(c) provisions for depreciation and amortization, provided however, that any
acquisition or disposition by the Guarantor or any Subsidiary during any period
of all of the capital stock of (or other equity interests in) any Person, or of
all or substantially all of the assets of any Person, shall in each case be
reflected and given effect in EBITDA as if such acquisition or disposition
occurred on the first day of such period, so long as, in the case of any such
acquisition, the Guarantor shall have delivered or caused to be delivered to
each holder of Notes financial information, set forth within audited financial
statements regarding such Person, disclosing the prior operating results of such
Person, and provided further, that, for purposes of calculating EBITDA, the
consummation of the Formation/Contribution Transactions will be taken into
account by including, on a pro forma basis, Herald's share of EBITDA for periods
prior to the Date of Closing, as derived from the "St. Louis Agency adjustment"
reflected in the consolidated financial statements of the Guarantor and its
Subsidiaries incorporated in annual reports of the Guarantor on Form 10-K or
quarterly reports of the Guarantor on Form 10-Q, as the case may be, for the
applicable periods, filed with the Securities and Exchange Commission.
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"ERISA AFFILIATE" shall mean any Person which is a member of the same
controlled group of Persons as the Guarantor within the meaning of section
414(b) of the Code, or any trade or business which is under common control with
the Guarantor within the meaning of section 414(c) of the Code.
"EVENT OF DEFAULT" shall mean any of the events specified in Section
6.1, provided that there has been satisfied any requirement in connection with
such event for the giving of notice, or the lapse of time, or the happening of
any further condition, event or act.
"GUARANTEED OBLIGATIONS" shall have the meaning specified in Section
2.1 of this Guaranty.
"GUARANTOR" shall have the meaning specified in the introductory
paragraph of this Guaranty.
"GUARANTY" shall have the meaning specified in the introductory
paragraph hereof.
"NOTE AGREEMENT" shall have the meaning specified in Recital A of this
Guaranty.
"NOTES" shall have the meaning specified in Recital A of this Guaranty.
"PRIORITY DEBT" shall mean, with respect to the Guarantor and its
Subsidiaries on any date of determination, the aggregate amount of all Debt of
the Guarantor secured by a Lien plus all secured and unsecured Debt of all
Subsidiaries (excluding Debt represented by the Notes).
"SUBSIDIARY" shall mean, as to the Guarantor, the Company and any other
corporation, limited liability company, association or other business entity
organized under the laws of any state of the United States of America, Canada or
any province of Canada which conducts the major portion of its business in and
makes the major portion of its sales to Persons located in the United States of
America or Canada, and all of the stock of every class of which (except
directors' qualifying shares) or other equity interests in which shall, at the
time as of which any determination is being made, be owned by the Guarantor
either directly or through Subsidiaries.
1.2. ACCOUNTING AND LEGAL PRINCIPLES, TERMS AND DETERMINATIONS. All
references in this Guaranty to "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall
mean generally accepted accounting principles, as in effect in the United States
from time to time. Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all determinations with respect to accounting
matters hereunder shall be made, and all unaudited financial statements and
certificates and reports as to financial matters required to be furnished
hereunder shall be prepared, in accordance with generally accepted accounting
principles applied on a basis consistent with the most recent audited
consolidated financial statements of the Guarantor and its Subsidiaries
delivered pursuant to clause (i) or (ii) of Section 4.1 or, if no such
statements have been so delivered, the most recent audited financial statements
referred to in Section 3.2. Any reference herein to any specific citation,
section or
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form of law, statute, rule or regulation shall refer to such new, replacement or
analogous citation, section or form should citation, section or form be
modified, amended or replaced.
2. GUARANTY
2.1. GUARANTY. The Guarantor hereby irrevocably, absolutely and
unconditionally guarantees unto each holder of Notes (i) the full and prompt
payment of the principal of, Yield-Maintenance Amount, if any, interest and all
other amounts due with respect to the Notes from time to time outstanding, as
and when such amounts shall become due and payable, whether by lapse of time,
upon redemption, prepayment or purchase, by extension or by acceleration or
declaration or otherwise (including (to the extent legally enforceable) interest
due on overdue payments of principal, Yield-Maintenance Amount, if any, or
interest at the rate set forth in the Notes or any other amounts due thereunder)
in coin or currency of the United States of America which at the time of payment
or demand therefor shall be legal tender for the payment of public and private
debts, (ii) the full and prompt payment, performance and observance by the
Company of all other obligations, covenants, conditions and agreements contained
in the Note Agreement or any other instrument or agreement entered into in
connection therewith or otherwise relating thereto, and (iii) the full and
prompt payment, upon demand by any holder of Notes of all costs and expenses
(including reasonable attorneys' fees), if any, as shall have been expended or
incurred in the protection or enforcement of any right or privilege under the
Notes, the Note Agreement or any other instrument or agreement entered into in
connection therewith or relating thereto or in the protection or enforcement of
any rights, privileges or liabilities under this Guaranty or in any consultation
or action in connection therewith or herewith (all such obligations, covenants,
conditions and agreements described in the foregoing clauses (i), (ii) and (iii)
being hereinafter collectively referred to as the "GUARANTEED OBLIGATIONS").
2.2. GUARANTY OF PAYMENT AND PERFORMANCE. This is a guaranty of payment
and performance and not a guaranty of collection, and the Guarantor hereby
waives any right to require that any action on or in respect of any Note, the
Note Agreement or any instrument or agreement relating to the Guaranteed
Obligations be brought against the Company or any other Person or that resort be
had to any direct or indirect security for the Notes or for this Guaranty or any
other remedy. Any holder of Notes may, at its option, proceed hereunder against
the Guarantor in the first instance to collect monies when due, the payment of
which is guaranteed hereby, without first proceeding against the Company or any
other Person and without first resorting to any direct or indirect security for
the Notes, or for this Guaranty or any other remedy. The liability of the
Guarantor hereunder shall in no way be affected or impaired by any acceptance by
any holder of Notes of any direct or indirect security for, or other guaranties
of, the Guaranteed Obligations or by any failure, delay, neglect or omission by
any holder of Notes to realize upon or protect any of the Guaranteed Obligations
or any Notes or other instruments evidencing the same or any direct or indirect
security therefor or by any approval, consent, waiver, or other action taken or
omitted to be taken by any such holder. The Guarantor (i) acknowledges that
certain obligations of the Company under the Note Agreement will survive the
payment or transfer of any Note and the termination of the Note Agreement, and
(ii) agrees that the obligations of the Guarantor hereunder with respect to such
surviving obligations shall also survive the payment or transfer of any Note and
the termination of the Note Agreement.
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2.3. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(i) The Guarantor hereby consents and agrees that any
holder or holders of Notes from time to time, with or without any
further notice to or assent from the Guarantor may, without in any
manner affecting the liability of the Guarantor under this Guaranty,
and upon such terms and conditions as any such holder or holders may
deem advisable:
(a) extend in whole or in part (by renewal or
otherwise), modify, change, compromise, release or extend the
duration of the time for the payment or performance of any of
the Guaranteed Obligations, or waive any default with respect
thereto, or waive, modify, amend or change any provision of
the Note Agreement, the Notes or any other instrument or
agreement entered into in connection therewith or otherwise
relating thereto;
(b) sell, release, surrender, modify, impair,
exchange or substitute any and all property, of any nature and
from whomsoever received, held by, or for the benefit of, any
such holder as direct or indirect security for the payment or
performance of any of the Guaranteed Obligations; or
(c) settle, adjust or compromise any claim of the
Company against any other Person secondarily or otherwise
liable for any of the Guaranteed Obligations.
The Guarantor hereby ratifies and confirms any such extension, renewal,
change, sale, release, waiver, surrender, exchange, modification,
amendment, impairment, substitution, settlement, adjustment or
compromise and that the same shall be binding upon it, and hereby
waives any and all defenses, counterclaims or offsets which it might or
could have by reason thereof, it being understood that the Guarantor
shall at all times be bound by this Guaranty and remain liable
hereunder.
(ii) The Guarantor hereby waives: (a) notice of acceptance of
this Guaranty by the holders of Notes or of the creation, renewal or
accrual of any liability of the Company, present or future, or of the
reliance of such holders upon this Guaranty (it being understood that
all Guaranteed Obligations shall conclusively be presumed to have been
created, contracted or incurred in reliance upon the execution of this
Guaranty); (b) demand of payment by any holder of Notes from the
Company or any other Person indebted in any manner on or for any of the
Guaranteed Obligations hereby guaranteed; and (c) presentment for the
payment by any holder of Notes or any other Person of the Notes or any
other instrument, protest thereof and notice of its dishonor to any
party thereto and to the Guarantor. The obligations of the Guarantor
under this Guaranty and the rights of any holder of Notes to enforce
such obligations by any proceedings, whether by action at law, suit in
equity or otherwise, shall not be subject to any reduction, limitation,
impairment or termination, whether by reason of
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any claim of any character whatsoever or otherwise and shall not be
subject to any defense, setoff, counterclaim, recoupment or
termination whatsoever.
(iii) The obligations of the Guarantor hereunder shall be
binding upon the Guarantor and its successors and assigns, and shall
remain in full force and effect irrespective of:
(a) the genuineness, validity, regularity or
enforceability of the Notes, the Note Agreement, this Guaranty
or any Notes or any other instrument or agreement entered into
in connection therewith or otherwise relating thereto, or any
of the terms of any thereof, the continuance of any obligation
on the part of the Company or any other Person on the Notes or
under the Note Agreement or any such other instrument or
agreement, or the power or authority or the lack of power or
authority of the Company to execute and deliver the Note
Agreement, the Notes or any such other instrument or
agreement, or to perform any of its obligations thereunder or
the existence or continuance of the Company or any other
Person as a legal entity;
(b) any default, failure or delay, willful or otherwise,
in the performance by the Company or any other Person of any
obligations of any kind or character whatsoever of the Company
or any other Person (including, without limitation, the
Guaranteed Obligations);
(c) any creditors' rights, bankruptcy, receivership
or other insolvency proceeding of the Company or any other
Person or in respect of the property of the Company or any
other Person or any merger, consolidation, reorganization,
dissolution, liquidation, the sale of all or substantially all
of the assets of or winding up of the Company or any other
Person;
(d) impossibility or illegality of performance on the
part of the Company or any other Person of its obligations
under the Notes, the Note Agreement, this Guaranty or any
other Notes or any other instrument or agreement entered into
in connection therewith or otherwise relating thereto;
(e) in respect of the Company or any other Person,
any change of circumstances, whether or not foreseen or
foreseeable, whether or not imputable to the Company or any
other Person, or other impossibility of performance through
fire, explosion, accident, labor disturbance, floods,
droughts, embargoes, wars (whether or not declared), civil
commotion, acts of God or the public enemy, delays or failure
of suppliers or carriers, inability to obtain materials,
action of any Federal or state regulatory body or agency,
change of law or any other causes affecting performance, or
any other force majeure, whether or not beyond the control of
the Company or any other Person and whether or not of the kind
hereinbefore specified;
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(f) any attachment, claim, demand, charge, lien,
order, process, encumbrance or any other happening or event or
reason, similar or dissimilar to the foregoing, or any
withholding or diminution at the source, by reason of any
taxes, assessments, expenses, indebtedness, obligations or
liabilities of any character, foreseen or unforeseen, and
whether or not valid, incurred by or against any Person, or
any claims, demands, charges or liens of any nature, foreseen
or unforeseen, incurred by any Person, or against any sums
payable under this Guaranty, so that such sums would be
rendered inadequate or would be unavailable to make the
payments herein provided;
(g) any order, judgment, decree, ruling or regulation
(whether or not valid) of any court of any nation or of any
political subdivision thereof or any body, agency, department,
official or administrative or regulatory agency of any thereof
or any other action, happening, event or reason whatsoever
which shall delay, interfere with, hinder or prevent, or in
any way adversely affect, the payment or performance by any
party of any of the Guaranteed Obligations;
(h) any failure or lack of diligence in collection or
protection, failure in presentment or demand for payment,
protest, notice of protest, notice of default and of
nonpayment, any failure to give notice to the Guarantor of
failure of Company or any other Person to keep and perform any
of the Guaranteed Obligations, or failure to resort for
payment to the Company or to any other Person or to any other
guaranty or to any property, security, Liens or other rights
or remedies;
(i) the acceptance of any additional security or
other guaranty, the advance of additional money to the Company
or any other Person, the renewal or extension of the Notes or
amendments, modifications, consents or waivers with respect to
the Notes, the Note Agreement or any other instrument or
agreement entered into in connection therewith or otherwise
relating thereto, or the sale, release, substitution or
exchange of any security for the Notes;
(j) any defense whatsoever that the Company or any
other Person might have to the payment of the Notes
(principal, Yield-Maintenance Amount, if any, or interest or
any other amounts due thereunder), other than payment in cash
thereof, or to the payment, performance or observance of any
of the other Guaranteed Obligations, whether through the
satisfaction or purported satisfaction by the Company or any
other Person of its debts due to any cause such as bankruptcy,
insolvency, receivership, merger, consolidation,
reorganization, dissolution, liquidation, winding up or
otherwise;
(k) any act or failure to act with regard to the
Notes, the Note Agreement, this Guaranty or any other
instrument or agreement entered into in connection therewith
or otherwise relating thereto, or anything which might vary
the risk of the Guarantor; or
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(l) any other circumstance (other than payment and
performance in full of the Guaranteed Obligations) which might
otherwise constitute a defense available to, or a discharge
of, the Guarantor in respect of its obligations under this
Guaranty;
provided, that the specific enumeration of the above-mentioned acts,
failures or omissions shall not be deemed to exclude any other acts,
failures or omissions, though not specifically mentioned above, it
being the purpose and intent of this Guaranty that the obligations of
the Guarantor shall be absolute and unconditional and shall not be
discharged, impaired or varied except by the full and prompt payment
and performance of all of the Guaranteed Obligations. Without limiting
the foregoing, it is understood that repeated and successive demands
may be made and recoveries may be had hereunder as and when, from time
to time, the Company or any other Person shall default under the terms
of the Notes, the Note Agreement or Notes or any other instrument or
agreement entered into in connection therewith or otherwise relating
thereto and that notwithstanding recovery hereunder for or in respect
of any given default or defaults by the Company or any other Person
under the Notes, the Note Agreement or any such other instrument or
agreement, this Guaranty shall remain in full force and effect and
shall apply to each and every subsequent default.
(iv) All rights of any holder of Notes may be transferred or
assigned at any time and shall be considered to be transferred or
assigned at any time or from time to time upon the transfer of such
Note whether with or without the consent of or notice to the Guarantor
under this Guaranty or to the Company.
(v) The Guarantor hereby subordinates to the rights of the
holders of Notes under the Note Agreement, the Notes or any other
instrument or agreement entered into in connection therewith or
otherwise relating thereto, and agrees to defer any assertion, until
such time as the Guaranteed Obligations have been indefeasibly paid and
performed in full, of any claim or other rights that it may now or
hereafter acquire against the Company or any other Person that arise
from the existence, payment, performance or enforcement of the
Guarantor's obligations under this Guaranty, including, without
limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any
claim or remedy of any holder or holders of Notes against the Company
or any other Person, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company or any other
Person, directly or indirectly, in cash or other property or by setoff
or in any other manner, payment or security on account of such claim,
remedy or right. If any amount shall be paid to the Guarantor in
violation of the preceding sentence at any time prior to the payment
and performance in full of all the Guaranteed Obligations, such amount
shall be held in trust for the benefit of the holders of Notes and
shall forthwith be paid to such holders to be credited and applied to
the Guaranteed Obligations, whether matured or unmatured.
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(vi) The Guarantor agrees that to the extent the Company or
any other Person makes any payment on any Note or in respect of any of
the other Guaranteed Obligations, which payment or any part thereof is
subsequently invalidated, voided, declared to be fraudulent or
preferential, set aside, recovered, rescinded or is required to be
retained by or repaid to a trustee, receiver, or any other Person under
any bankruptcy code, common law, or equitable cause, then and to the
extent of such payment, the obligation or the part thereof intended to
be satisfied shall be revived and continued in full force and effect
with respect to the Guarantor's obligations hereunder, as if said
payment had not been made. The liability of the Guarantor hereunder
shall not be reduced or discharged, in whole or in part, by any payment
to any holder of Notes from any source that is thereafter paid,
returned or refunded in whole or in part by reason of the assertion of
a claim of any kind relating thereto, including, but not limited to,
any claim for breach of contract, breach of warranty, preference,
illegality, invalidity, or fraud asserted by any account debtor or by
any other Person.
(vii) The holders of Notes shall have no obligation to (a) to
marshal any assets in favor of the Guarantor or in payment of any or
all of the Guaranteed Obligations or (b) pursue any other remedy that
the Guarantor may or may not be able to pursue itself and that may
lighten the Guarantor's burden, any right to which the Guarantor hereby
expressly waives.
3. REPRESENTATIONS AND WARRANTIES
The Guarantor represents, covenants and warrants as follows:
3.1. ORGANIZATION AND QUALIFICATION; DUE AUTHORIZATION. The Guarantor
is a corporation duly organized and existing in good standing under the laws of
the State of Delaware. The Company and each other Subsidiary (other than a
Subsidiary of the Company that is not a Material Subsidiary) is duly organized
and existing in good standing under the laws of the jurisdiction in which it is
incorporated or otherwise organized. The Guarantor, the Company and each other
Subsidiary (other than a Subsidiary of the Company that is not a Material
Subsidiary) has the corporate or limited liability company power, as applicable,
to own its respective property and to carry on its respective business as now
being conducted, and the Guarantor, the Company and each other Subsidiary (other
than a Subsidiary of the Company that is not a Material Subsidiary) is duly
qualified as a foreign corporation or limited liability company, as applicable,
to do business and in good standing in every jurisdiction in which the nature of
the respective business conducted or property owned by it makes such
qualification necessary, except where the failure to so qualify would not have a
material adverse effect on the Guarantor and its Subsidiaries taken as a whole.
The Guarantor has the corporate power and authority to execute and deliver this
Guaranty and to perform the provisions hereof. The execution, delivery and
performance by the Guarantor of this Guaranty has been duly authorized by all
necessary corporate action.
3.2. FINANCIAL STATEMENTS. The Guarantor has furnished each Purchaser
with the following financial statements, identified by a principal financial
officer of the Guarantor: a consolidated balance sheet of the Guarantor (or its
predecessor, Pulitzer Publishing Company)
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and its Subsidiaries as at December 31 in each of the years 1997 to 1999,
inclusive, and statements of consolidated income, financial position and cash
flows of the Guarantor (or its predecessor, Pulitzer Publishing Company) and its
Subsidiaries for each such year, all audited by Deloitte & Touche L.L.P. Such
financial statements (including any related schedules and/or notes) are true and
correct in all material respects, have been prepared in accordance with
generally accepted accounting principles consistently followed throughout the
periods involved and show all liabilities, direct and contingent, of the
Guarantor (or its predecessor, Pulitzer Publishing Company) and its Subsidiaries
required to be shown in accordance with such principles. The balance sheets
fairly present the condition of the Guarantor (or its predecessor, Pulitzer
Publishing Company) and its Subsidiaries as at the dates thereof, and the
statements of income and statements of financial position and cash flows fairly
present the results of the operations of the Guarantor (or its predecessor,
Pulitzer Publishing Company) and its Subsidiaries for the periods indicated.
There has been no material adverse change in the business, condition or
operations (financial or otherwise) of the Guarantor and its Subsidiaries taken
as a whole since December 31, 1999.
3.3. ACTIONS PENDING. There is no action, suit, investigation or
proceeding pending or, to the knowledge of the Guarantor, threatened against the
Guarantor or any of its Subsidiaries, or any properties or rights of the
Guarantor or any of its Subsidiaries, by or before any court, arbitrator or
administrative or governmental body which might result in any material adverse
change in the business, condition or operations of the Guarantor and its
Subsidiaries taken as a whole. There is no action, suit, investigation or
proceeding pending or threatened against the Guarantor or any of its
Subsidiaries which purports to affect the validity or enforceability of this
Guaranty, the Note Agreement or any Note.
3.4. OUTSTANDING DEBT. Neither the Guarantor nor any of its
Subsidiaries has outstanding any Debt except as permitted by Section 5.1 and
Section 5.3 and as set forth in the Guarantor's consolidated financial
statements for the year ended December 31, 1999. There exists no default under
the provisions of any instrument evidencing such Debt or of any agreement
relating thereto.
3.5. TITLE TO PROPERTIES. The Guarantor has and each of its
Subsidiaries has good and marketable title to its respective real properties
(other than properties which it leases) and good title to all of its other
respective properties and assets, including the properties and assets reflected
in the consolidated balance sheet of the Guarantor as at December 31, 1999
referred to in Section 3.2 (other than properties and assets disposed of in the
ordinary course of business), including all properties and assets of the
Guarantor to be contributed to the Company in the Formation/Contribution
Transactions, subject to no Lien of any kind except Liens permitted by Section
5.2. All leases necessary in any material respect for the conduct of the
respective businesses of the Guarantor and its Subsidiaries are valid and
subsisting and are in full force and effect, subject to Liens permitted by
Section 5.2.
3.6. TAXES. The Guarantor has and each of its Subsidiaries has filed
all Federal, state and other income tax returns which, to the best knowledge of
the officers of the Guarantor, are required to be filed and each has paid all
taxes as shown on such returns and on all assessments received by it to the
extent that such taxes have become due, except such taxes as are being
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contested in good faith by appropriate proceedings for which adequate reserves
have been established in accordance with generally accepted accounting
principles. Federal income tax returns of the Guarantor and its Subsidiaries
have been examined and reported on by the taxing authorities or closed by
applicable statutes and satisfied for all fiscal years prior to and including
the fiscal year ended December 31, 1995.
3.7. CONFLICTING AGREEMENTS AND OTHER MATTERS. Neither the Guarantor
nor any of its Subsidiaries is a party to any contract or agreement or subject
to any charter or other limited liability company or corporate restriction which
materially and adversely affects the business, property or assets, or financial
condition of the Guarantor and its Subsidiaries, taken as a whole. Neither the
execution nor delivery of this Guaranty, the Note Agreement, the Notes or the
Formation/Contribution Documents, nor the offering, issuance and sale of the
Notes, nor fulfillment of nor compliance with the terms and provisions hereof
and of the Note Agreement, the Notes and the Formation/Contribution Documents
will conflict with, or result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in any violation of, or result in
the creation of any Lien upon any of the properties or assets of the Guarantor
or any of its Subsidiaries pursuant to, the charter, by-laws, limited liability
company agreement or other organizational documents of the Guarantor or any of
its Subsidiaries, any award of any arbitrator or any agreement (including any
agreement with members or stockholders), instrument, order, judgment, decree,
statute, law, rule or regulation to which the Guarantor or any of its
Subsidiaries is subject, except to the extent any such conflict, breach,
defaults, violation or creation of a Lien could not reasonably be expected to
have a material adverse effect on the business, operations, property or
financial or other condition of the Guarantor and its Subsidiaries, taken as a
whole, or the ability of the Guarantor to perform its obligations hereunder.
Except as set forth in the Limited Liability Company Agreement (as in effect on
the date hereof), neither the Guarantor nor any of its Subsidiaries is a party
to, or otherwise subject to any provision contained in, any instrument
evidencing indebtedness of the Guarantor or such Subsidiary, any agreement
relating thereto or any other contract or agreement (including its limited
liability company agreement, charter or other organizational documents) which
limits the amount of, or otherwise imposes restrictions on the incurring of,
Debt of the Guarantor represented by this Guaranty or Debt of the Company of the
type to be evidenced by the Notes.
3.8. ERISA. No accumulated funding deficiency (as defined in section
302 of ERISA and section 412 of the code), whether or not waived, exists with
respect to any Plan. No liability to the PBGC has been or is expected by the
Guarantor, any Subsidiary or any ERISA Affiliate to be incurred with respect to
any Plan by the Guarantor, any Subsidiary or any ERISA Affiliate which is or
would be materially adverse to the Guarantor and its Subsidiaries taken as a
whole. Neither the Guarantor, any Subsidiary nor any ERISA Affiliate has
incurred or presently expects to incur any withdrawal liability under Title IV
of ERISA with respect to any Multiemployer Plan which is or would be materially
adverse to the Guarantor and its Subsidiaries taken as a whole. The execution
and delivery of this Guaranty and the Note Agreement and the issuance and sale
of the Notes will not involve any transaction which is subject to the
prohibitions of section 406 of ERISA or in connection with which a tax could be
imposed pursuant to section 4975 of the Code. The representation by the
Guarantor in the preceding sentence is made in reliance upon and subject to the
accuracy of the representation of each Purchaser in paragraph 9B of the Note
Agreement.
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3.9. GOVERNMENTAL CONSENT. Neither the nature of the Guarantor or of
any Subsidiary, nor any of their respective businesses or properties, nor any
relationship between the Guarantor or any Subsidiary and any other Person, nor
any circumstance in connection with the execution and delivery of this Guaranty
and the Note Agreement and the offering, issuance, sale or delivery of the Notes
is such as to require any authorization, consent, approval, exemption or other
action by or notice to or filing with any court or administrative or
governmental body (other than routine filings after the date of closing with the
Securities and Exchange Commission and/or state Blue Sky authorities) in
connection with the execution and delivery of this Guaranty and the Note
Agreement, the offering, issuance, sale or delivery of the Notes or fulfillment
of or compliance with the terms and provisions hereof or of the Note Agreement
or the Notes.
3.10. DISCLOSURE. Neither this Guaranty nor any other document,
certificate or statement furnished to any holder of Notes by or on behalf of the
Guarantor in connection herewith contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading. There is no fact peculiar to the
Guarantor or any of its Subsidiaries which materially adversely affects or in
the future may (so far as the Guarantor can now foresee) materially adversely
affect the business, property or assets, or financial condition of the Guarantor
and its Subsidiaries taken as a whole and which has not been set forth in this
Guaranty or in the other documents, certificates and statements furnished to the
holders of Notes by or on behalf of the Guarantor prior to the date hereof in
connection with the transactions contemplated hereby.
3.11. FORMATION/CONTRIBUTION DOCUMENTS. Each of the
Formation/Contribution Documents has been duly executed and delivered by the
Guarantor and any of its Subsidiaries parties thereto and constitutes the valid
and binding agreement of such parties, enforceable against each in accordance
with its terms except as enforceability may be limited by bankruptcy,
insolvency, moratorium or other laws relating to or affecting creditors' rights
generally and the exercise of judicial discretion in accordance with general
equitable principles. There exists no material default by the Guarantor or any
of its Subsidiaries (or, to the knowledge of the Guarantor, by Herald) under any
Formation/Contribution Document.
3.12. SOLVENCY. The Guarantor and the Company, individually, and the
Guarantor and its Subsidiaries, on a consolidated basis, are Solvent, both
before and after giving effect to this Guaranty, the Note Agreement, the
Formation/Contribution Documents and the transactions contemplated hereby and
thereby.
3.13. REPRESENTATIONS AND WARRANTIES IN FORMATION/CONTRIBUTION
DOCUMENTS. To induce the Purchasers to enter into the Note Agreement and to
purchase the Notes to be purchased by them thereunder, the Guarantor agrees that
each Purchaser shall be entitled to rely upon each of the representations and
warranties of the Guarantor or any of its Subsidiaries set forth in any of the
Formation/Contribution Documents as fully as if set forth in this Guaranty.
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4. AFFIRMATIVE COVENANTS
So long as any Note shall remain unpaid, the Guarantor covenants as
follows:
4.1. FINANCIAL STATEMENTS. The Guarantor will deliver to each holder of
Notes in duplicate (it being understood that the Guarantor need not duplicate
delivery by the Company of the financial statements or other items required to
be delivered under paragraph 5A of the Note Agreement):
(i) as soon as practicable and in any event within 45 days
after the end of each quarterly period (other than the last quarterly
period) in each fiscal year, a consolidating and consolidated statement
of income and a consolidated statement of cash flows of the Guarantor
and its Subsidiaries for the period from the beginning of the current
fiscal year to the end of such quarterly period, and a consolidating
and consolidated balance sheet of the Guarantor and its Subsidiaries as
at the end of such quarterly period, setting forth in each case in
comparative form figures for the corresponding period in the preceding
fiscal year (if applicable, in the case of the Company and its
Subsidiaries), all in reasonable detail and certified by an authorized
financial officer of the Guarantor, subject to changes resulting from
year-end adjustments; to the extent they include the types of
statements described above and otherwise comply with the requirements
of this clause (i), such unaudited consolidated financial statements
may be in the form incorporated in the Guarantor's reports on Form 10-Q
or in other filings with the Securities and Exchange Commission;
(ii) as soon as practicable and in any event within 90 days
after the end of each fiscal year, a consolidating and consolidated
statement of income and a consolidating and consolidated balance sheet
of the Guarantor and its Subsidiaries as at the end of such year and
consolidated statements of cash flows and stockholders' equity of the
Guarantor and its Subsidiaries for such year, setting forth in each
case in comparative form corresponding consolidated figures from the
preceding annual audit, all in reasonable detail and satisfactory in
scope to the Required Holder(s) and, as to the consolidated statements,
audited by independent public accountants of recognized standing
selected by the Guarantor whose opinion shall be in scope and substance
satisfactory to the Required Holder(s) and, as to the consolidating
statements, certified by an authorized financial officer of the
Guarantor; to the extent they include the types of statements described
above and otherwise comply with the requirements of this clause (ii),
such audited consolidated financial statements may be in the form
incorporated in the Guarantor's annual report on Form 10-K or in other
filings with the Securities and Exchange Commission;
(iii) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as the
Guarantor shall send to its stockholders and copies of all registration
statements (without exhibits) and all reports (other than reports as to
which the Guarantor shall receive confidential treatment) which the
Guarantor or any Subsidiary (including the Company) files with the
Securities and
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Exchange Commission (or any governmental body or agency succeeding to
the functions of the Securities and Exchange Commission);
(iv) promptly upon receipt thereof, a copy of each other
report submitted to the Guarantor or any Subsidiary by independent
accountants in connection with any annual, interim or special audit
made by them of the books of the Guarantor or any Subsidiary; and
(v) with reasonable promptness, such other information and
documents as any holder of Notes may reasonably request.
Together with each delivery of financial statements required by clauses (i) and
(ii) above, the Guarantor will deliver to each holder of Notes an Officer's
Certificate, substantially in the form of Exhibit A attached hereto, executed on
behalf of the Guarantor and demonstrating (with computations in reasonable
detail) compliance by the Guarantor and its Subsidiaries (including the Company)
with the provisions of Sections 5.1, 5.2(x), 5.3, 5.4, 5.5, 5.6, 5.9 and 5.10 of
this Guaranty and stating that there exists no Event of Default or Default, or,
if any Event of Default or Default exists, specifying the nature and period of
existence thereof and what action the Guarantor proposes to take with respect
thereto. Together with each delivery of financial statements required by clause
(ii) above, the Guarantor will deliver or cause to be delivered to each holder a
certificate of such accountants stating that, in making the audit necessary for
their report on such financial statements, they have obtained no knowledge of
any Event of Default or Default or, if they have obtained knowledge of any Event
of Default or Default, specifying the nature and period of existence thereof.
Such accountants, however, shall not be liable to anyone by reason of their
failure to obtain knowledge of any Event of Default or Default which would not
be disclosed in the course of an audit conducted in accordance with generally
accepted auditing standards. The Guarantor also covenants that immediately after
any Responsible Officer obtains knowledge of an Event of Default or Default, it
will deliver to each holder an Officer's Certificate specifying the nature and
period of existence thereof and what action the Guarantor has taken, is taking
or proposes to take with respect thereto. Each holder of Notes is hereby
authorized to deliver a copy of any financial statement delivered to such holder
pursuant to this Section 4.1 to any regulatory body having jurisdiction over
such holder.
4.2. INSPECTION OF PROPERTIES. The Guarantor will permit any Person
designated by any holder in writing, at such holder's expense if no Event of
Default then exists and at the Company's expense if an Event of Default then
exists, to visit and inspect any of the properties of the Guarantor and its
Subsidiaries, to examine the corporate or limited liability company books and
financial records of the Guarantor and its Subsidiaries and make copies thereof
or extracts therefrom and to discuss the affairs, finances and accounts of any
of such limited liability companies or corporations with the principal officers
of the Guarantor and its independent public accountants, all at such reasonable
times and as often as such holder may reasonably request.
4.3. COVENANT TO SECURE NOTES EQUALLY. The Guarantor will, if it or any
Subsidiary shall create or assume any Lien upon any of its property or assets,
whether now owned or
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hereafter acquired, other than Liens permitted by the provisions of Section 5.2
(unless prior written consent to the creation or assumption thereof shall have
been obtained pursuant to Section 7.2), make or cause to be made effective
provision whereby the Guaranteed Obligations will be secured by such Lien
equally and ratably with any and all other Debt thereby secured, so long as any
such other Debt shall be so secured; provided that the creation and maintenance
of such equal and ratable Lien shall not in any way limit or modify the right of
the holders of the Notes to enforce the provisions of Section 5.2.
4.4. BUSINESS. Except as otherwise provided in Section 5.4, the
Guarantor and its Subsidiaries taken as a whole will continue to engage in
business in substantially the same fields of enterprise as conducted on the date
hereof.
4.5. COMPLIANCE WITH LAWS AND REGULATIONS. The Guarantor will and will
cause each Subsidiary to be in material compliance with all laws and regulations
(including, but not limited to, those relating to equal employment opportunity
and employee health and safety) which are now in effect or may be legally
imposed in the future in any jurisdiction in which the Guarantor and any
Subsidiary is doing business other than those laws and regulations which the
Guarantor or such Subsidiary is contesting in good faith by appropriate
proceedings; provided, however, (i) the Guarantor or such Subsidiary continues
to operate any affected business free of any requirement to escrow or sequester
any material amount of such business' profits or revenues pending resolution of
such proceedings, or (ii) any non-compliance with any law or regulation could
not reasonably be expected to have a material adverse effect on the business,
operations, property or financial or other condition of the Guarantor and the
Subsidiaries, taken as a whole, or the ability of the Guarantor to perform its
obligations hereunder.
4.6. PATENTS, TRADE MARKS AND TRADE NAMES. The Guarantor will and will
cause each Subsidiary to continue to own, or hold licenses for the use of, all
copyrights, franchises, licenses, marketing rights, patents, service marks,
trade marks, trade names, and rights in any of the foregoing, as in the
aggregate are necessary for the conduct of its business in the manner in which
such business is being conducted as of the date hereof except where failure to
continue to own or hold such licenses could not reasonably be expected to have a
material adverse effect on the business, operations, property or financial or
other condition of the Guarantor and the Subsidiaries, taken as a whole, or the
ability of the Guarantor to perform its obligations hereunder.
4.7. PAYMENT OF TAXES AND OTHER CLAIMS. The Guarantor will and will
cause each of its Subsidiaries to file all income tax or similar tax returns
required to be filed in any jurisdiction and to pay and discharge all taxes
shown to be due and payable on such returns and all other taxes, assessments,
governmental charges, levies, trade accounts payable and claims for work, labor
or materials (all the foregoing being referred to collectively as "CLAIMS")
payable by any of them, to the extent such Claims have become due and payable
and before they have become delinquent; provided, that neither the Guarantor nor
any Subsidiary need pay any Claim if (i) the amount, applicability or validity
thereof is contested by the Guarantor or such Subsidiary on a timely basis in
good faith and in appropriate proceedings, and the Guarantor or such Subsidiary
has established adequate reserves therefor in accordance with generally accepted
accounting principles on its books or (ii) the nonpayment of all such Claims
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in the aggregate could not reasonably be expected to have a material adverse
effect on the business, operations, property or financial or other condition of
the Guarantor and its Subsidiaries, taken as a whole, or the ability of the
Guarantor to perform its obligations hereunder.
4.8. ERISA COMPLIANCE. The Guarantor will, and will cause each ERISA
Affiliate to, at all times:
(i) with respect to each Plan, make timely payments of
contributions required to meet the minimum funding standard set forth
in ERISA or the Code with respect thereto and, with respect to any
Multiemployer Plan, make timely payment of contributions required to be
paid thereto as provided by Section 515 of ERISA, and
(ii) comply with all other provisions of ERISA,
except for such failures to make contributions and failures to comply as could
not reasonably be expected to have a material adverse effect on the business,
operations, property or financial or other condition of the Guarantor and the
Subsidiaries, taken as a whole, or the ability of the Guarantor to perform its
obligations hereunder.
5. NEGATIVE COVENANTS
So long as any Note shall remain unpaid, the Guarantor covenants as
follows:
5.1. CONSOLIDATED DEBT TO EBITDA AND CONSOLIDATED NET WORTH
REQUIREMENTS. The Guarantor will not at any time permit:
(i) the ratio of (a) Consolidated Debt as of the last day of
each fiscal quarter to (b) EBITDA for the four fiscal quarters most
recently ended to be greater than 4.25 to 1.00; or
(ii) Consolidated Net Worth as of the last day of any fiscal
quarter, commencing with the fiscal quarter ending June 30, 2000, to be
less than the sum of (a) $650,000,000 plus (b) the product of (x)
$3,750,000 multiplied by (y) the number of fiscal quarters that have
ended since the Date of Closing, to and including the fiscal quarter
ended on such measurement date.
5.2. LIENS. The Guarantor will not, and will not permit any Subsidiary
to, create, assume or suffer to exist any Lien upon any of its property or
assets, whether now owned or hereafter acquired (whether or not provision is
made for the equal and ratable securing of the Guaranteed Obligations in
accordance with the provisions of Section 4.3), except:
(i) mechanics', workmen's, repairmen's, warehousemen's,
carriers' or other like Liens arising or incurred in the ordinary
course of business for amounts which are not delinquent or are being
actively contested in good faith by appropriate proceedings;
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(ii) with respect to real property, (a) easements,
quasi-easements, licenses, covenants, rights-of-way and other similar
restrictions, including any other agreements, conditions, restrictions
or other matters which would be shown by a current title report or
other similar report or listing, (b) any conditions that would be shown
by a current survey or physical inspection and (c) zoning, building and
other similar restrictions;
(iii) Liens for taxes or assessments or other governmental
charges or levies not yet due or which are being actively contested in
good faith by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Guarantor or its
Subsidiaries, as the case may be, in accordance with generally accepted
accounting principles;
(iv) other Liens which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit, and
which do not in the aggregate materially impair the use of such
property and assets in the operation of the business of the Guarantor
and its Subsidiaries, or materially detract from the value of such
property or assets for the purpose of the business of the Guarantor and
its Subsidiaries, taken as a whole;
(v) Liens on property or assets of a Subsidiary other than the
Company to secure obligations of such Subsidiary other than the Company
to the Guarantor or another Subsidiary;
(vi) any Lien existing on any property of any Person at the
time it becomes a Subsidiary, or existing prior to the time of
acquisition upon any property acquired by the Guarantor or any
Subsidiary through purchase, merger, or consolidation or otherwise,
whether or not assumed by the Guarantor or such Subsidiary, or placed
upon property at the time of acquisition, construction or improvement
by the Guarantor or any Subsidiary to secure all or a portion of (or to
secure Debt incurred to pay all or a portion of) the purchase price or
cost thereof or placed after acquisition upon property acquired,
constructed or improved by the Guarantor or any Subsidiary after the
date of closing, provided that any such Lien shall not encumber any
other property of the Guarantor or such Subsidiary;
(vii) Liens on property owned or leased by the Guarantor or a
Subsidiary (other than the Company) in favor of the United States of
America or any state thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any state thereof, or any political subdivision thereof, or
in favor of holders of securities issued by any such entity, pursuant
to any contract or statute (including, without limitation, mortgages to
secure pollution control or industrial revenue bonds) to secure any
indebtedness incurred for the purpose of financing all or any part of
the purchase price or the cost of construction of the property subject
to such Liens;
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(viii) any Liens renewing, extending or refunding any Lien
permitted by clauses (vi) and (vii) above, provided that the principal
amount secured is not increased and the Lien is not extended to other
property;
(x) any Liens permitted under paragraph 6C(1) of the Note
Agreement; and
(xi) any other Lien which secures any Debt, provided that the
aggregate principal amount of such Debt together with all other Debt of
the Guarantor and its Subsidiaries secured by all Liens which would be
permitted under the foregoing provisions (including, any such Debt
permitted to be secured under clauses (i) through (ix) above), together
with all other Priority Debt, does not exceed 15% of Capitalization and
does not exceed the limitation imposed in clause (i) of Section 5.1.
5.3. PRIORITY DEBT. The Guarantor will not at any time permit Priority
Debt to exceed 15% of Capitalization as of the then most recently ended fiscal
quarter of the Guarantor.
5.4. LOANS, ADVANCES AND INVESTMENTS. The Guarantor will not, and will
not permit any Subsidiary to, make or permit to remain outstanding any loan or
advance to, or own, purchase or acquire any stock, obligations or securities of,
or any interest in, or make any capital contribution to, any Person, except that
the Guarantor or any Subsidiary may:
(i) make or permit to remain outstanding loans, advances or
capital contributions to any Subsidiary;
(ii) make or permit to remain outstanding any loans, advances
or capital contributions from (a) any Subsidiary other than the Company
to the Guarantor or any other Subsidiary and (b) the Company to any
Subsidiary of the Company;
(iii) own, purchase or acquire stock, obligations or
securities of or other equity interests in a Subsidiary or a Person
which immediately after such purchase or acquisition will be a
Subsidiary;
(iv) make and permit to remain outstanding investments in
notes receivable which are received pursuant to (a) the sale of all or
substantially all of a business or operations or (b) the sale of used
equipment in the ordinary course of business, but in each case only to
the extent that the aggregate uncollected amount of all such notes
receivable does not exceed $500,000;
(v) make and permit to remain outstanding loans, advances and
other investments in any business principally engaged in publishing
(print or electronic) or related media activity, provided that all such
loans, advances and other investments to or in entities which are not
Subsidiaries do not in the aggregate exceed 10% of Capitalization;
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(vi) make and permit to remain outstanding loans, advances and
other investments received in settlement of debts (created in the
ordinary course of business) owing to the Guarantor or any Subsidiary,
(vii) own, purchase or acquire commercial paper issued by any
corporation or bankers' acceptances issued by any member bank of the
Federal Reserve System, in either case, maturing within one year of the
date of purchase and rated, by at least two of Standard & Poor's
Ratings Group, Moody's Investors Service, Inc. and Fitch Investors
Service, Inc., "A-1", "P-1" and "F-1", respectively, and payable in the
United States in United States dollars;
(viii) own, purchase or acquire certificates of deposit in
member banks of the Federal Reserve System (each having capital
resources in excess of $75,000,000) or certificates of deposit in an
aggregate amount not to exceed $2,000,000 in banks having capital
resources of less than $75,000,000), all due within one year from the
date of original issue thereof and payable in the United States in
United States dollars;
(ix) own, purchase or acquire repurchase agreements of member
banks of the Federal Reserve System (each having capital resources in
excess of $75,000,000) for terms of less than one year in respect of
the foregoing certificates and obligations;
(x) own, purchase or acquire obligations of the United States
government or any agency thereof;
(xi) own, purchase or acquire obligations guaranteed by the
United States government or any agency thereof;
(xii) investments in stocks of investment companies registered
under the Investment Company Act of 1940 which invest primarily in
obligations of the type described in clauses (vii), (viii), (ix), (x)
or (xi) above, provided that any such investment company shall have an
aggregate net asset value of not less than $500,000,000;
(xiii) own, purchase or acquire investments in money market
mutual funds that are classified as current assets in accordance with
generally accepted accounting principles, that are rated "AAAm" by
Standard & Poor's Ratings Group and that invest solely in investments
described in clauses (vii), (viii), (ix), (x) or (xi) above, which
funds are managed by Persons having capital and surplus in excess of
$500,000,000;
(xiv) endorse negotiable instruments for collection in the
ordinary course of business;
(xv) make or permit to remain outstanding travel and other
like advances to officers and employees in the ordinary course of
business;
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(xvi) make or permit to remain outstanding investments in
demand deposit accounts maintained by the Guarantor or any Subsidiary
in the ordinary course of its business;
(xvii) make or permit to remain outstanding investments
consisting of Eurodollar time deposits, maturing within 90 days after
the making thereof, with any branch of a United States commercial bank
having capital and surplus of not less than $1 billion in the
aggregate;
(xviii) make or permit to remain outstanding investments in
municipal obligations having a rating of "Aaa" by Moody's Investors
Service, Inc., or "AAA" by Standard & Poor's Ratings Group;
(xix) permit to remain outstanding investments of the
Guarantor and its Subsidiaries set forth on Schedule 5.4;
(xx) own, purchase or acquire (a) asset-backed securities,
mortgage-backed securities and collateralized mortgage obligations
issued by any entity and rated at least Aa3 by Moody's Investors
Service, Inc. or AA- by Standard & Poor's Ratings Group and (b) notes
and bonds issued by any domestic corporate issuer and rated at least A3
by Moody's Investors Service, Inc. or A- by Standard & Poor's Ratings
Group; and
(xxi) make or permit to remain outstanding any other loan or
advance to, or own, purchase or acquire any other stock, obligations or
securities of, or any other interest in, or make any other capital
contribution to any Person, provided that the aggregate amount thereof
does not exceed 6% of Consolidated Net Worth at any time.
5.5. SALE OR DISPOSITION OF CAPITAL ASSETS. The Guarantor will not, and
will not permit any Subsidiary to, sell or dispose of capital assets (including
capital stock or other equity interests) outside the ordinary course of business
if the aggregate of capital assets so sold or disposed of in any fiscal year
involves assets totaling 10% or more of Consolidated Total Assets at the
beginning of such fiscal year or has contributed 10% or more of EBITDA for any
of the three fiscal years then most recently ended (or such shorter period
during which such assets were owned by the Guarantor or a Subsidiary), unless
either (i) the net proceeds (including the cash value of any securities received
but deducting all expenses of sale and sales and transfer taxes and applicable
Federal and state income taxes) from such sale or disposition are within 12
months from receipt invested in businesses substantially similar to any line of
business in which the Guarantor or any Subsidiary has been continuously engaged
since the date of issuance of the Notes or (ii) within 12 months after receipt
of such net proceeds, an amount equal to such net proceeds is applied to the pro
rata prepayment (based on outstanding principal amounts) of (a) the principal of
the Notes then outstanding (in accordance with paragraph 4A of the Note
Agreement, and together with all accrued interest on, and Yield-Maintenance
Amount, if any, payable with respect to, the Notes) and (b) all other Debt of
the Guarantor and its Subsidiaries consisting of obligations for borrowed money.
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5.6. SALE AND LEASE-BACK. The Guarantor will not, and will not permit
any Subsidiary to, enter into any arrangement with any lender or investor or
under which such lender or investor is a party, providing for the leasing or
other similar arrangement by the Guarantor or any Subsidiary of real or personal
property used by the Guarantor or any Subsidiary in the operations of the
Guarantor or any Subsidiary, which has been or is sold or transferred by the
Guarantor or any Subsidiary to such lender or investor or to any Person to whom
funds have been or are to be advanced by such lender or investor on the security
of such rental obligations of the Guarantor or such Subsidiary, except that the
Guarantor or any Subsidiary (other than the Company) may enter into sale and
lease-back transactions involving newspaper equipment or facilities acquired
after the issuance of the Notes if (i) such arrangement shall be for a period of
less than three years by the end of which the use of such property by the lessee
will be discontinued, (ii) the net proceeds of such sale are applied to the
retirement of Debt, (iii) the net proceeds of the sale are used to purchase
other property having a value at least equal to such net proceeds, (iv) the
property immediately prior to such sale could have been subjected to a Lien
securing Debt in an amount equal to such net proceeds and which Lien would be
permitted by clause (x) of Section 5.2, or (v) the transaction represents a sale
by a Subsidiary (other than the Company) to the Guarantor or another Subsidiary
or by the Guarantor to a Subsidiary.
5.7. MERGER. The Guarantor will not, and will not permit any Subsidiary
to, merge or consolidate with any other Person except that:
(i) any Subsidiary may merge or consolidate with the Guarantor
(provided that the Guarantor shall be the continuing or surviving
Person) or any one or more other Subsidiaries; and
(ii) the Guarantor may merge or consolidate with any other
corporation, provided that upon such merger or consolidation the
continuing or surviving corporation (a) shall be in compliance with all
the terms and provisions of this Guaranty, and if the Guarantor is not
the survivor, the continuing or surviving corporation shall have
unconditionally and irrevocably assumed all of the Guarantor's
obligations under this Guaranty (with such assumption accompanied by a
legal opinion satisfactory in form and substance to the Required
Holder(s) from Fulbright & Jaworski L.L.P., or other counsel reasonably
satisfactory to the Required Holder(s)), and (b) after giving pro forma
effect to such merger or consolidation, could have incurred at least
one dollar of additional Debt on the last day of the fiscal quarter
most recently ended without violating clause (i) of Section 5.1 or
Section 5.3.
5.8. TRANSACTIONS WITH AFFILIATES. Except as disclosed in the audited
consolidated financial statements of the Guarantor and its Subsidiaries for the
fiscal year ended December 31, 1999, as incorporated in the Guarantor's annual
report on Form 10-K filed with the Securities and Exchange Commission, the
Guarantor will not, and will not permit any Subsidiary to, directly or
indirectly enter, into or be a party to any transaction or arrangement,
including, without limitation, the purchase, sale, exchange or use of any
property or asset, or any interest therein, whether real, personal or mixed, or
tangible or intangible, or the rendering of any service, with any Affiliate,
except transactions in the ordinary course of and pursuant to
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the reasonable requirements of the Guarantor's and each Subsidiary's business,
as the case may be, upon fair and reasonable terms that are no less favorable to
the Guarantor and the Subsidiaries, as the case may be, than those which might
be obtained in an arm's length transaction with a Person not an Affiliate. For
avoidance of doubt, the reference in this Section 5.8 to transactions with "any
Affiliate" shall be understood to exclude both (i) transactions between the
Guarantor and any Subsidiary and (ii) transactions between a Subsidiary of the
Guarantor and any other Subsidiary of the Guarantor.
5.9. SALE OF STOCK AND DEBT OF SUBSIDIARIES. The Guarantor will not,
and will not permit any Subsidiary to, sell or otherwise dispose of, or part
with control of, any shares of stock of (or other equity interests in) or Debt
of any Subsidiary, except that shares of stock of (or other equity interests in)
or Debt of any Subsidiary (other than the Company) may be sold or otherwise
disposed of to the Guarantor or another Subsidiary, and except that all shares
of stock of (or other equity interests in) and Debt of any Subsidiary (other
than the Company) at the time owned by or owed to the Guarantor or any
Subsidiary may be sold as an entirety for a cash consideration which represents
the fair market value (as determined in good faith by the Board of Directors of
the Guarantor) at the time of sale of the shares of stock or other equity
interests and Debt so sold, provided that the assets of such Subsidiary do not
constitute more than 10% of Consolidated Total Assets at the beginning of the
fiscal year in which such sale or disposition is to occur and that such
Subsidiary shall not have contributed more than 10% of EBITDA for any of the
three fiscal years then most recently ended, unless such transaction shall be
subject to, and in compliance with, Section 5.5, and further provided that, in
any event, at the time of sale, such Subsidiary shall not own, directly or
indirectly, any shares of stock of (or other equity interests in) or Debt of any
other Subsidiary (unless all of the shares of stock of (or other equity
interests in) and Debt of such other Subsidiary are owned, directly or
indirectly, by the Guarantor and all Subsidiaries are simultaneously being sold
as permitted by this Section 5.9).
5.10. ISSUANCE OF STOCK BY SUBSIDIARIES. The Guarantor will not permit
any Subsidiary, the assets of which constitute more than 10% of Consolidated
Total Assets at the beginning of the fiscal year in which such issuance, sale or
disposition is to occur or which has contributed more than 10% of EBITDA for any
of the three fiscal years most recently ended, to issue, sell or dispose of any
shares of its stock (of any class) or any other equity interests except to the
Guarantor or another Subsidiary.
5.11. LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS. Except as set forth
in the Limited Liability Company Agreement (as in effect on the date hereof),
the Guarantor will not permit any Subsidiary to enter into or suffer to exist
any contractual obligation which in any way restricts the ability of such
Subsidiary to (i) make any dividends, other distributions or advances to the
Guarantor or any other Subsidiary or (ii) transfer any of its property or assets
to the Guarantor or any other Subsidiary.
5.12. CONFORMING DEBT AGREEMENT CHANGES. The Guarantor will not, and
will not permit any Subsidiary to, become or be a party to any agreement
relating to any Debt greater than $10,000,000 entered into after the date of
this Guaranty, or to any amendment of or supplement to any agreement relating to
any Debt greater than $10,000,000, if, in any such
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case, the Guarantor or any Subsidiary is agreeing therein to any financial
covenants of a type specified in this Guaranty, which are more restrictive than
the covenants set forth herein, or to other financial covenants expressly
requiring the Guarantor or any Subsidiary to comply with similar computable
standards of financial condition or performance, unless the Guarantor offers to
amend this Guaranty so as to provide the benefit of similar covenants for the
benefit of the holders of the Notes for so long as such covenants are in full
force under such agreement, amendment or supplement. Any such offer shall be
made in writing to the holders of the Notes prior to being effected in any such
agreement, amendment or supplement and, absent such offer, shall be deemed to be
incorporated herein mutatis mutandis for the benefit of the holders of the Notes
for so long as such covenants are in full force under such agreement, amendment
or supplement unless and until the Required Holder(s) shall otherwise consent
thereto.
6. EVENTS OF DEFAULT; REMEDIES
6.1. EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an "EVENT OF DEFAULT" under this Guaranty:
(i) the Guarantor or any Subsidiary defaults in any payment of
principal of or interest on any obligation for money borrowed (or any
Capitalized Lease Obligation, any obligation under a conditional sale
or other title retention agreement, any obligation issued or assumed as
full or partial payment for property whether or not secured by a
purchase money mortgage or any obligation under notes payable or drafts
accepted representing extensions of credit) beyond any period of grace
provided with respect thereto (excluding, however, such a default by
the Company in respect of the Notes), or the Guarantor or any
Subsidiary fails to perform or observe any other agreement, term or
condition contained in any agreement under which any such obligation is
created (or if any other event thereunder or under any such agreement
shall occur and be continuing) and the effect of such failure or other
event is to cause, or to permit the holder or holders of such
obligation (or a trustee on behalf of such holder or holders) to cause,
such obligation to become due prior to its stated maturity (excluding,
however, such a failure or other event under the Note Agreement) or any
such obligation shall mature and remain unpaid, provided, that the
aggregate amount of all obligations as to which such a payment default
shall occur and be continuing or such a failure or other event causing
or permitting acceleration shall occur and be continuing exceeds
$10,000,000; or
(ii) any representation or warranty made (a) by the Guarantor
herein or in any writing furnished in connection with or pursuant to
this Guaranty, the Note Agreement or the transactions contemplated
thereby, or (b) by Herald to or in favor of the holders, or upon which
the holders have been authorized by Herald to rely, shall be false in
any material respect on the date as of which made; or
(iii) the Guarantor fails to perform or observe any term,
covenant or agreement contained in Sections 2 or 5 of this Guaranty; or
25
<PAGE> 29
(iv) the Guarantor fails to perform or observe any other
agreement, term or condition contained herein and such failure shall
not be remedied within 30 days after any Responsible Officer of the
Guarantor obtains actual knowledge thereof; or
(v) the Guarantor or any Subsidiary (other than a
Subsidiary of the Company that is not a Material Subsidiary) makes an
assignment for the benefit of creditors or is generally not able to pay
its debts as such debts become due; or
(vi) any decree, judgment, or order for relief in respect of
the Guarantor or any Subsidiary (other than a Subsidiary of the Company
that is not a Material Subsidiary) is entered under any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law, whether now or
hereafter in effect (herein called the "BANKRUPTCY LAW"), of any
jurisdiction; or
(vii) the Guarantor or any Subsidiary (other than a
Subsidiary of the Company that is not a Material Subsidiary) petitions
or applies to any tribunal for, or consents to, the appointment of, or
taking possession by, a trustee, receiver, custodian, liquidator or
similar official of the Guarantor or any such Subsidiary, or of any
substantial part of the assets of the Guarantor or any such Subsidiary,
or commences a voluntary case under the Bankruptcy Law of the United
States or any proceedings (other than proceedings for the voluntary
liquidation and dissolution of any such Subsidiary) relating to the
Guarantor or any such Subsidiary under the Bankruptcy Law of any other
jurisdiction; or
(viii) any such petition or application is filed, or any such
proceedings are commenced, against the Guarantor or any Subsidiary
(other than a Subsidiary of the Company that is not a Material
Subsidiary) and the Guarantor or such Subsidiary by any act indicates
its approval thereof, consent thereto or acquiescence therein, or an
order, judgment or decree is entered appointing any such trustee,
receiver, custodian, liquidator or similar official, or approving the
petition in any such proceedings, and such order, judgment or decree
remains unstayed and in effect for more than 60 days; or
(ix) any order, judgment or decree is entered in any
proceedings against the Guarantor or any Subsidiary (other than a
Subsidiary of the Company that is not a Material Subsidiary) decreeing
the dissolution of the Guarantor or such Subsidiary and such order,
judgment or decree remains unstayed and in effect for more than 60
days; or
(x) one or more final judgments in an aggregate amount in
excess of $10,000,000 is rendered against the Guarantor or any of its
Subsidiaries and, within 60 days after entry thereof, any such judgment
is not discharged or execution thereof stayed pending appeal, or within
60 days after the expiration of any such stay, such judgment is not
discharged; or
(xi) (a) any Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is
sought or granted under section 412 of the
26
<PAGE> 30
Code, (b) a notice of intent to terminate any Plan in a distress
termination (within the meaning of ERISA section 4041(c)) shall have
been or is reasonably expected to be filed with the PBGC or the PBGC
shall have instituted proceedings under ERISA section 4042 to
terminate or appoint a trustee to administer any Plan or the PBGC
shall have notified the Guarantor or any ERISA Affiliate that a Plan
may become a subject of such proceedings, (c) the aggregate "amount of
unfunded benefit liabilities" (within the meaning of section
4001(a)(18) of ERISA) under all Plans, determined in accordance with
Title IV of ERISA, shall exceed $5,000,000, (d) the Guarantor or any
ERISA Affiliate shall have incurred or is reasonably expected to incur
any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans,
(e) the Guarantor or any ERISA Affiliate withdraws from any
Multiemployer Plan, or (f) the Guarantor or any Subsidiary establishes
or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the
liability of the Guarantor or any Subsidiary thereunder; and any such
event or events described in clauses (a) through (f) above, either
individually or together with any other such event or events, could
reasonably be expected to have a material adverse effect on the
business, operations, property or financial or other condition of the
Guarantor and its Subsidiaries, taken as a whole, or the ability of
the Guarantor to perform its obligations hereunder.
6.2. REMEDIES. Upon the occurrence of an Event of Default under this
Guaranty, the Required Holder(s) may, at its or their option, exercise any and
all remedies available to it or them, whether under the Note Agreement or any
other instrument or agreement entered into in connection therewith or relating
thereto or otherwise at law or in equity.
7. MISCELLANEOUS
7.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT. All
representations and warranties contained herein or made in writing by or on
behalf of the Guarantor in connection herewith shall survive the execution and
delivery of this Guaranty, the purchase or transfer of any Note or portion
thereof or interest therein and the payment of any Note, and may be relied upon
by any subsequent holder of Notes, regardless of any investigation made at any
time by or on behalf of any other holder of Notes. All statements contained in
any certificate or other instrument delivered by or on behalf of the Guarantor
pursuant to or in connection with this Guaranty shall be deemed representations
and warranties of the Guarantor under this Guaranty. Subject to the preceding
sentence, this Guaranty embodies the entire agreement and understanding between
the Guarantor and the holders of the Notes and supersedes all prior agreements
and understandings relating to the subject matter hereof.
7.2. CONSENT TO AMENDMENTS. This Guaranty may be amended, and the
Guarantor may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, if the Guarantor shall obtain the written
consent to such amendment, action or omission to act, of the Required Holder(s),
except that (i) no amendment or waiver of any of the provisions of Section 2
hereof or any defined term (as it is used therein) and (ii) no termination of
this Guaranty in its entirety or release of the Guarantor herefrom will be
27
<PAGE> 31
effective unless consented to in writing by the holder or holders of all Notes
at the time outstanding. The Guarantor will not directly or indirectly pay or
cause to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into by any holder of
Notes or any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each holder of Notes then outstanding
even if such holder did not consent to such waiver or amendment.
7.3. BINDING EFFECT, ETC. Any amendment or waiver consented to as
provided in Section 7.2 hereof applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and the Guarantor
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement or Event of Default not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Guarantor
and any holder of Notes nor any delay in exercising any rights hereunder or
under any Note shall operate as a waiver of any rights of any holder of such
Note.
7.4. NOTICES. All written communications provided for hereunder shall
be sent by first class mail or nationwide overnight delivery service (with
charges prepaid) and (i) if to a Purchaser, addressed to it at the address
specified for such communications in the Purchaser Schedule attached to the Note
Agreement, or at such other address as such Purchaser shall have specified to
the Guarantor or the Company in writing, (ii) if to any other holder of any
Note, addressed to such other holder at such address as such other holder shall
have specified to the Guarantor or the Company in writing or, if any such other
holder shall not have so specified an address to the Guarantor or the Company,
then addressed to such other holder in care of the last holder of such Note
which shall have so specified an address to the Guarantor or the Company, and
(iii) if to the Guarantor, addressed to it at 900 North Tucker Boulevard, St.
Louis, Missouri 63101, Attention: Senior Vice President-Finance, or at such
other address as the Guarantor shall have specified to the holder of each Note
in writing.
7.5. SEVERABILITY. Any provision of this Guaranty which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.6. SUCCESSORS AND ASSIGNS. All covenants and other agreements in this
Guaranty shall bind the successors and assigns of the Guarantor and shall inure
to the benefit of the successors and assigns of the holders of Notes (including,
without limitation, any Transferee) whether so expressed or not.
7.7. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is prohibited by
any one of such covenants, the fact that it would be permitted by an exception
to, or otherwise be in compliance within the limitations of, another covenant
shall not (i) avoid the occurrence of an Event of
28
<PAGE> 32
Default or Default if such action is taken or such condition exists or (ii) in
any way prejudice an attempt by the holders of Notes to prohibit (through
equitable action or otherwise) the taking of any action by the Guarantor or a
Subsidiary which would result in an Event of Default or Default.
7.8. SATISFACTION REQUIREMENT. If any agreement, certificate or other
writing, or any action taken or to be taken, is by the terms of this Guaranty
required to be satisfactory to any holder of Notes or to the Required Holder(s),
the determination of such satisfaction shall be made by such holder or the
Required Holder(s), as the case may be, in the sole and exclusive judgment
(exercised in good faith) of the Person or Persons making such determination.
7.9. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument.
7.10. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK.
7.11. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. The Guarantor
hereby irrevocably submits to the jurisdiction of any New York state or Federal
court sitting in New York in any action or proceeding arising out of or relating
to this Guaranty, and the Guarantor hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in New York
state or Federal court. The Guarantor hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The Guarantor agrees and irrevocably
consents to the service of any and all process in any such action or proceeding
by the mailing, by registered or certified U.S. mail, or by any other means or
mail that requires a signed receipt, of copies of such process to the Guarantor
at its address set forth in section 7.4. The Guarantor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section 7.10 shall affect the right of any
holder of the Notes to serve legal process in any other manner permitted by law
or affect the right of any holder of the Notes to bring any action or proceeding
against the Guarantor or its property in the courts of any other jurisdiction.
To the extent that the Guarantor has or hereafter may acquire immunity from
jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, the Guarantor hereby
irrevocably waives such immunity in respect of its obligations under this
Guaranty.
7.12. WAIVER OF JURY TRIAL. THE GUARANTOR AND THE HOLDERS OF THE NOTES
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY, THE NOTE AGREEMENT, THE
NOTES, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
TRANSACTION AND THE LENDER/GUARANTOR RELATIONSHIP THAT IS BEING ESTABLISHED. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE HOLDERS OF
THE NOTES AND THE GUARANTOR EACH ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO THIS BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY
RELIED ON THE WAIVER IN ENTERING INTO THIS
<PAGE> 33
AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. THE HOLDERS OF THE NOTES AND THE GUARANTOR FURTHER WARRANT AND
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty
to be executed and delivered by its duly authorized officer as of the date first
above written to become effective as of such date.
PULITZER INC.
By: /s/Ronald H. Ridgway
------------------------------------------
Name: Ronald H. Ridgway
Title: Senior Vice President - Finance
<PAGE> 34
SCHEDULE 5.4
LOANS, ADVANCES AND INVESTMENTS
<TABLE>
<CAPTION>
Cost
Par Value As of 3/26/00
--------- -------------
<S> <C> <C>
Corporate Notes & Bonds:
Comdisco Inc. Note $750,000 $749,947
Kroger Co. Senior Note 1,755,000 1,754,857
Capital One Bank Medium Term Senior Notes 1,500,000 1,501,282
Golden State Escrow Corp. Floating Rate Note 2,000,000 1,973,016
Jones Intercable Inc. (Comcast Corp.) 2,000,000 2,111,858
Korean Development Bank Bond 1,250,000 1,272,402
Niagara Mohawk Power Corp. Senior Disc Note 1,575,000 1,222,601
Pohang Iron & Steel Note 800,000 793,339
Rite Aid Corp. Note 2,000,000 1,935,859
Sovereign Bancorp Inc. Note 2,300,000 2,292,714
Municipal Bonds:
Austin Texas Utilities 2,360,000 2,458,700
Columbus Ohio Water Systems 3,295,000 3,323,300
</TABLE>
<TABLE>
<CAPTION>
Approximate
Cost Basis
As of 4/30/00
-----------------
<S> <C>
Employee Loans 70,000
St. Louis EquityFund 477,564
Split Dollar Life Insurance Policies 2,410,538
Sandler 21st Century Communications Partners, L.P. 3,078,859
Sandler Capital Partners IV, L.P.(a)
10,293,784
Ad One LLC 2,542,353
I Own Holdings, Inc. 2,009,781
Next Generation Network 1,999,998
Hire.com, Inc. 1,010,878
Koz.com, Inc. 1,001,026
Entry Point Incorporated 200,000
</TABLE>
(a) Amount includes the remaining commitment Of $910,779 due under the
investment agreement.
<PAGE> 35
EXHIBIT A
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
(PULITZER INC.)
[FOR THE FISCAL QUARTER ENDING _____________]
[FOR THE FISCAL YEAR ENDING _____________]
To: Each holder of those certain 8.05% Senior Notes due April 28, 2009 issued
by St. Louis Post-Dispatch LLC, a Delaware limited liability company (the
"COMPANY"), pursuant to that certain Note Agreement dated as of May 1, 2000
(as amended, restated, supplemented or otherwise modified from time to
time, the "NOTE AGREEMENT") among the Company and the Purchasers listed on
the Purchaser Schedule thereto.
As required by Section 4.1 of that certain Guaranty Agreement dated as
of even date with the Note Agreement (as amended, restated, supplemented or
otherwise modified from time to time, the "GUARANTY AGREEMENT"), executed by
Pulitzer Inc., a Delaware corporation and the sole managing member of the
Company (the "GUARANTOR"), for the benefit of the holders of the Notes (all
capitalized terms used and not otherwise defined in this Compliance Certificate
have the respective meanings ascribed to them in the Guaranty Agreement), the
undersigned certifies as follows:
(1) The undersigned is the duly elected, qualified and acting
[PRESIDENT][VICE PRESIDENT][TREASURER] of the Guarantor.
(2) In the undersigned's capacity as an officer of the Guarantor, the
undersigned has made, or caused to be made under his supervision, a review in
reasonable detail of the transactions and the financial condition of the
Guarantor and its Subsidiaries and has determined that the Guarantor has
observed or performed in all material respects all of its covenants and other
agreements, and satisfied every condition, contained in the Guaranty Agreement
to be observed, performed or satisfied by it on or before the date hereof, and
as of the date hereof, no Default or Event of Default has occurred and is
continuing[, EXCEPT AS SET FORTH IN PARAGRAPH (3) BELOW].
[(3) BELOW (OR IN A SEPARATE SCHEDULE TO THIS COMPLIANCE CERTIFICATE)
ARE THE EXCEPTIONS, IF ANY, TO PARAGRAPH (2), LISTING, IN DETAIL, THE NATURE OF
EACH CONDITION OR EVENT WHICH CONSTITUTES A DEFAULT OR EVENT OF DEFAULT, THE
PERIOD DURING WHICH SUCH EVENT OR CONDITION HAS EXISTED AND THE ACTION WHICH THE
GUARANTOR HAS TAKEN, IS TAKING, OR PROPOSES TO TAKE WITH RESPECT TO EACH SUCH
CONDITION OR EVENT.]
[([3] [4]) WITH RESPECT TO THE FINANCIAL STATEMENTS REFERRED TO IN
CLAUSE (I) OF SECTION 4.1 OF THE GUARANTY AGREEMENT, WHICH ARE DELIVERED
CONCURRENTLY WITH THE
<PAGE> 36
DELIVERY OF THIS COMPLIANCE CERTIFICATE, THE UNDERSIGNED HEREBY CONFIRMS THAT
SUCH FINANCIAL STATEMENTS OF THE GUARANTOR AND ITS SUBSIDIARIES HAVE BEEN
PREPARED IN ACCORDANCE WITH GAAP APPLIED CONSISTENTLY THROUGHOUT THE PERIOD
INVOLVED, AND THE COVENANTS FROM THE GUARANTY AGREEMENT LISTED AND CALCULATED ON
ANNEX A ATTACHED HERETO ARE BASED ON SUCH FINANCIAL STATEMENTS.]
[([3] [4]) WITH RESPECT TO THE FINANCIAL STATEMENTS REFERRED TO IN
CLAUSE (II) OF SECTION 4.1 OF THE GUARANTY AGREEMENT, WHICH ARE DELIVERED
CONCURRENTLY WITH THE DELIVERY OF THIS COMPLIANCE CERTIFICATE, THE UNDERSIGNED
HEREBY CONFIRMS THAT SUCH FINANCIAL STATEMENTS OF THE GUARANTOR AND ITS
SUBSIDIARIES, INCLUDING THE RELATED NOTES AND SCHEDULES THERETO, HAVE BEEN
PREPARED IN ACCORDANCE WITH GAAP APPLIED CONSISTENTLY THROUGHOUT THE PERIODS
INVOLVED, AND THE COVENANTS FROM THE GUARANTY AGREEMENT LISTED AND CALCULATED ON
ANNEX A ATTACHED HERETO ARE BASED ON SUCH FINANCIAL STATEMENTS.]
([4] [5]) The undersigned hereby certifies that described below in
reasonable detail are the adjustments, if any, necessary to derive the
information set forth in Annex A from the financial statements referred to in
paragraph ([3][4]) above.
-------------------------------------
[NAME], [TITLE]
2
<PAGE> 37
ANNEX A
COVENANT
<TABLE>
<CAPTION>
COVENANTS Compliance
- --------- [Indicate Yes/No]
<S> <C> <C>
1. Consolidated Debt to EBITDA Ratio (Section 5.1(i))
--------------------------------------------------
The ratio of
(i) Consolidated Debt(1) as of the last day of the
fiscal quarter most recently ended to $
-------------
(ii) EBITDA(2) for the four fiscal quarters most
recently ended $
-------------
must not be greater than 4.25 to 1.00
to 1.00 -------------
-------
2. Consolidated Net Worth (Section 5.1(ii))
----------------------------------------
Commencing with the fiscal quarter ending June 30, 2000, Consolidated
Net Worth(3) as of the last day of the fiscal quarter most recently
ended $
-------------
must not be less than (a) $650,000,000 plus (b) the product of $
------------- -------------
(x) $3,750,000 multiplied by (y) the number of fiscal quarters
that have ended since the Date of Closing, to and including the
fiscal quarter ended on such measurement date
3. Limitation on Priority Debt (Section 5.3)
-----------------------------------------
Priority Debt(4) (including Debt secured by Liens permitted by $
-------------
Section 5.2)
Capitalization(5) as of the last day of the fiscal quarter most
recently ended $
-------------
Percentage of Capitalization as of the last day of the fiscal
quarter most recently ended %
-------------
must not exceed 15% of Capitalization as of the last day of the
fiscal quarter most recently ended -------------
4. Loans, Advances and Investments (Section 5.4)
---------------------------------------------
The Guarantor will not, and will not permit any Subsidiary to, make or
permit to remain outstanding any loan or advance to, or own, purchase
or acquire any stock, obligations or securities of, or any interest
in, or make any capital contribution
</TABLE>
- -------------------------------
(1) See Schedule 1, Item 1.
(2) See Schedule 1, Item 2.
(3) See Schedule 1, Item 3.
(4) See Schedule 1, Item 4.
(5) See Schedule 1, Item 5
A-1
<PAGE> 38
to, any Person, except that the Guarantor or any Subsidiary may:
(i) make or permit to remain outstanding loans, advances or capital
contributions to any Subsidiary;
(ii) make or permit to remain outstanding any loans, advances or
capital contributions from (a) any Subsidiary other than the Company to the
Guarantor or any other Subsidiary and (b) the Company to any Subsidiary of
the Company;
(iii) own, purchase or acquire stock, obligations or securities of or
other equity interests in a Subsidiary or a Person which immediately after
such purchase or acquisition will be a Subsidiary;
(iv) make and permit to remain outstanding investments in notes
receivable which are received pursuant to (a) the sale of all or
substantially all of a business or operations or (b) the sale of used
equipment in the ordinary course of business, but in each case only to the
extent that the aggregate uncollected amount of all such notes receivable
does not exceed $500,000;
(v) make and permit to remain outstanding loans, advances and other
investments in any business principally engaged in publishing (print or
electronic), provided that all such loans, advances and other investments
to or in entities which are not Subsidiaries do not in the aggregate
exceed 10% of Capitalization;
(vi) make and permit to remain outstanding loans, advances and other
investments received in settlement of debts (created in the ordinary course
of business) owing to the Guarantor or any Subsidiary,
(vii) own, purchase or acquire commercial paper issued by any
corporation or bankers' acceptances issued by any member bank of the
Federal Reserve System, in either case, maturing within one year of the
date of purchase and rated, by at least two of Standard & Poor's Ratings
Group, Moody's Investors Service, Inc. and Fitch Investors Service, Inc.,
"A-1", "P-1" and "F-1", respectively, and payable in the United States in
United States dollars;
(viii) own, purchase or acquire certificates of deposit in member
banks of the Federal Reserve System (each having capital resources in
excess of $75,000,000) or certificates of deposit in an aggregate amount
not to exceed $2,000,000 in banks having capital resources of less than
$75,000,000), all due within one year from the date of original issue
thereof and payable in the United States in United States dollars;
(ix) own, purchase or acquire repurchase agreements of member banks
of the Federal Reserve System (each having capital resources in excess of
$75,000,000) for terms of less than one year in respect of the foregoing
certificates and obligations;
(x) own, purchase or acquire obligations of the
A-2
<PAGE> 39
United States government or any agency thereof;
(xi) own, purchase or acquire obligations guaranteed by the United
States government or any agency thereof;
(xii) investments in stocks of investment companies registered under
the Investment Company Act of 1940 which invest primarily in obligations
of the type described in clauses (vii), (viii), (ix), (x) or (xi) above,
provided that any such investment company shall have an aggregate net
asset value of not less than $500,000,000;
(xiii) own, purchase or acquire investments in money market mutual
funds that are classified as current assets in accordance with generally
accepted accounting principles, that are rated "AAAm" by Standard & Poor's
Ratings Group and that invest solely in investments described in clauses
(vii), (viii), (ix), (x) or (xi) above, which funds are managed by Persons
having capital and surplus in excess of $500,000,000;
(xiv) endorse negotiable instruments for collection in the ordinary
course of business;
(xv) make or permit to remain outstanding travel and other like
advances to officers and employees in the ordinary course of business;
(xvi) make or permit to remain outstanding investments in demand
deposit accounts maintained by the Guarantor or any Subsidiary in the
ordinary course of its business;
(xvii) make or permit to remain outstanding investments consisting
of Eurodollar time deposits, maturing within 90 days after the making
thereof, with any branch of a United States commercial bank having capital
and surplus of not less than $1 billion in the aggregate;
(xviii) make or permit to remain outstanding investments in
municipal obligations having a rating of "Aaa" by Moody's Investors
Service, Inc., or "AAA" by Standard & Poor's Ratings Group;
(xix) permit to remain outstanding investments of the Guarantor and
its Subsidiaries set forth on Schedule 5.4;
(xx) own, purchase or acquire (a) asset-backed securities, mortgage-
backed securities and collateralized mortgage obligations issued by any
entity and rated at least AA3 by Moody's Investors Service, Inc. or Aa- by
Standard & Poor's Ratings Group and (b) notes and bonds issued by any
domestic corporate issuer and rated at least A3 by Moody's Investors
Service, Inc. or A- by Standard & Poor's Ratings Group; and
A-3
<PAGE> 40
(xxi) make or permit to remain outstanding any other loan or advance
to, or own, purchase or acquire any other stock, obligations or securities
of, or any other interest in, or make any other capital contribution to
any Person, provided that the aggregate amount thereof does not at any
time exceed 6% of Consolidated Net Worth as of the last day of then most
recently ended fiscal quarter.
<TABLE>
<S> <C> <C>
$
-------------
Consolidated Net Worth $
-------------
Percentage of Consolidated Net Worth %
-------------
(xxi) must not exceed 6% of Consolidated
Net Worth -------------
</TABLE>
5. Limitation on Sale or Disposition of Capital Assets (Section 5.5)
The Guarantor will not, and will not permit any Subsidiary to, sell or
dispose of capital assets (including capital stock or other equity
interests) outside the ordinary course of business if the aggregate of
capital assets so sold or disposed of in any fiscal year involves assets
totaling 10% or more of Consolidated Total Assets at the beginning of such
fiscal year or has contributed 10% or more of EBITDA for any of the three
fiscal years then most recently ended (or such shorter period during which
such assets were owned by the Guarantor or a Subsidiary), unless either (i)
the net proceeds (including the cash value of any securities received but
deducting all expenses of sale and sales and transfer taxes and applicable
Federal and state income taxes) from such sale or disposition are within 12
months from receipt invested in businesses substantially similar to any
line of business in which the Guarantor or any Subsidiary has been
continuously engaged since the date of issuance of the Notes or (ii) within
12 months after receipt of such net proceeds, an amount equal to such net
proceeds is applied to the pro rata prepayment (based on outstanding
principal amounts) of (a) the principal of the Notes then outstanding (in
accordance with paragraph 4A of the Note Agreement, and together with all
accrued interest on, and Yield-Maintenance Amount, if any, payable with
respect to, the Notes) and (b) all other Debt of the Guarantor and its
Subsidiaries consisting of obligations for borrowed money.
Aggregate of capital assets sold or disposed of outside of the ordinary
course of business during the fiscal year in which the period covered by
this Compliance Certificate occurs
<TABLE>
<S> <C>
$
-------------
Consolidated Total Assets at beginning of such fiscal year $
-------------
%
Percentage of Consolidated Total Assets at the beginning of such -------------
fiscal year
EBITDA for each of the three fiscal years then most
recently ended $
-------------
$
-------------
$
-------------
</TABLE>
A-4
<PAGE> 41
<TABLE>
<S> <C>
Percentage of EBITDA for each such year contributed by assets %
sold or disposed of -------------
%
-------------
%
-------------
must not involve assets totaling 10% or more of Consolidated Total Assets
at the beginning of such fiscal year or contributing 10% or more of EBITDA
for any of the three fiscal years then most recently ended (or such shorter
period during which such assets were owned by the Guarantor or a
Subsidiary) UNLESS, (i) the net proceeds (including the cash value of any
securities received but deducting all expenses of sale and sales and
transfer taxes and applicable Federal and state income taxes) from such
sale or disposition are within 12 months from receipt invested in
businesses substantially similar to any line of business in which the
Guarantor or any Subsidiary has been continuously engaged since the date of
issuance of the Notes or (ii) within 12 months after receipt of such net
proceeds, an amount equal to such net proceeds is applied to the pro rata
prepayment (based on outstanding principal amounts) of (a) the principal of
the Notes then outstanding (in accordance with paragraph 4A of the Note
Agreement, and together with all accrued interest on, and Yield-Maintenance
Amount, if any, payable with respect to, the Notes) and (b) all other Debt
of the Guarantor and its Subsidiaries consisting of obligations for
borrowed money.
-------------
6. Limitations on Sale and Leaseback (Section 5.6)
The Guarantor will not, and will not permit any Subsidiary to, enter into
any arrangement with any lender or investor or under which such lender or
investor is a party, providing for the leasing or other similar arrangement
by the Guarantor or any Subsidiary of real or personal property used by the
Guarantor or any Subsidiary in the operations of the Guarantor or any
Subsidiary, which has been or is sold or transferred by the Guarantor or
any Subsidiary to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor on the security
of such rental obligations of the Guarantor or such Subsidiary, EXCEPT that
the Guarantor or any Subsidiary (other than the Company) may enter into
sale and lease-back transactions involving newspaper equipment or
facilities acquired after the issuance of the Notes if (i) such arrangement
is for a period of less than three years by the end of which the use of
such property by the lessee will be discontinued, (ii) the net proceeds of
such sale are applied to the retirement of Debt, (iii) the net proceeds of
the sale are used to purchase other property having a value at least equal
to such net proceeds, (iv) the property immediately prior to such sale
could have been subjected to a Lien securing Debt in an amount equal to
such net proceeds and which Lien would have been permitted by clause (xi)
of Section 5.2, or (v) the transaction represents a sale by a Subsidiary
(other than the Company) to the Guarantor or another Subsidiary or by the
Guarantor to a Subsidiary.
-------------
</TABLE>
A-5
<PAGE> 42
7. Limitation on Sale of Stock and Debt of Subsidiaries (Section 5.9)
The Guarantor will not, and will not permit any Subsidiary to, sell or
otherwise dispose of, or part with control of, any shares of stock of (or
other equity interests in) or Debt of any Subsidiary, except that shares of
stock of (or other equity interests in) or Debt of any Subsidiary (other
than the Company) may be sold or otherwise disposed of to the Guarantor or
another Subsidiary, and except that all shares of stock of (or other equity
interests in) and Debt of any Subsidiary (other than the Company) at the
time owned by or owed to the Guarantor or any Subsidiary may be sold as an
entirety for a cash consideration which represents the fair market value
(as determined in good faith by the Board of Directors of the Guarantor) at
the time of sale of the shares of stock or other equity interests and Debt
so sold, provided that the assets of such Subsidiary do not constitute more
than 10% of Consolidated Total Assets at the beginning of the fiscal year
in which such sale or disposition is to occur and that such Subsidiary
shall not have contributed more than 10% of EBITDA for any of the three
fiscal years then most recently ended, unless such transaction shall be
subject to, and in compliance with, Section 5.5, and further provided that,
in any event, at the time of sale, such Subsidiary shall not own, directly
or indirectly, any shares of stock of (or other equity interests in) or
Debt of any other Subsidiary (unless all of the shares of stock of (or
other equity interests in) and Debt of such other Subsidiary are owned,
directly or indirectly, by the Guarantor and all Subsidiaries are
simultaneously being sold as permitted by Section 5.9 of the Guaranty).
<TABLE>
<S> <C> <C>
Consolidated Total Assets at beginning of such fiscal year $
-------------
Consolidated Total Assets represented by assets of Subsidiary $
-------------
Percentage of Consolidated Total Assets represented by
assets of Subsidiary %
-------------
EBITDA for each of the three fiscal years then most recently ended $
-------------
$
-------------
$
-------------
%
Percentage of EBITDA for each such year contributed by -------------
%
Subsidiary -------------
%
-------------
the assets of such Subsidiary must not constitute more than 10% of
Consolidated Total Assets at the beginning of the fiscal year in which such
sale or disposition is to occur and such Subsidiary must not have
contributed more than 10% of EBITDA for any of the three fiscal years then
most recently ended, unless such transaction was subject to, and in
compliance with, Section 5.5.
-------------
</TABLE>
8. Issuance of Stock by Subsidiaries (Section 5.10)
The Guarantor will not permit any Subsidiary, the assets of which
constitute more than 10% of Consolidated Total Assets at the beginning of
the fiscal year in which such issuance, sale or disposition is to occur or
which has contributed more than 10% of
A-6
<PAGE> 43
EBITDA for any of the three fiscal years most recently ended, to issue,
sell or dispose of any shares of its stock (of any class) or any other
equity interests except to the Guarantor or another Subsidiary.
<TABLE>
<S> <C> <C>
Consolidated Total Assets at beginning of such fiscal year $
-------------
Consolidated Total Assets represented by assets of Subsidiary $
-------------
Percentage of Consolidated Total Assets represented by assets of %
Subsidiary -------------
EBITDA for each of the three fiscal years then most recently ended $
-------------
$
-------------
$
-------------
Percentage of EBITDA for each such year contributed by Subsidiary %
-------------
%
-------------
%
-------------
the assets of such Subsidiary must not constitute more than 10% of
Consolidated Total Assets at the beginning of the fiscal year in which such
issuance, sale or disposition is to occur and the Subsidiary must not have
contributed more than 10% of EBITDA for any of the three fiscal years -------------
most recently ended.
</TABLE>
A-7
<PAGE> 44
SCHEDULE 1 TO ANNEX A TO COMPLIANCE CERTIFICATE
<TABLE>
<S> <C>
1. Consolidated Debt
-----------------
(i) all obligations for borrowed money or obligations
represented by notes payable and drafts accepted representing
extensions of credit, all obligations evidenced by bonds, debentures,
notes or other similar instruments and all obligations upon which
interest charges are customarily paid; $
-------------
(ii) Capitalized Lease Obligations; $
-------------
(iii) indebtedness secured by any Lien existing on property
owned by the Guarantor or any Subsidiary subject to such Lien, whether
or not the indebtedness secured thereby shall have been assumed by the
Guarantor or any Subsidiary; $
-------------
(iv) guarantees, endorsements (other than endorsements of
negotiable instruments for collection in the ordinary course of
business) and other contingent liabilities (whether direct or indirect)
in connection with the obligations, stock or dividends of any Person; $
-------------
(v) obligations under any contract providing for the making
of loans, advances or capital contributions to any Person, or for the
purchase of any property from any Person, in each case in order to
enable such Person primarily to maintain working capital, net worth or
any other balance sheet condition or to pay debt, dividends or
expenses; $
-------------
(vi) obligations under any contract for the purchase of
materials, supplies or other property from any Person if such contract
(or any related document) requires that payment for such materials,
supplies or other property shall be made regardless of whether or not
delivery of such materials, supplies or other property is ever made or
tendered; $
-------------
(vii) obligations under any contract to rent or lease (as
lessee) any real or personal property if such contract (or any related
document) provides that the obligation to make payments thereunder is
absolute and unconditional under conditions not customarily found in
commercial leases then in general use or requires that the lessee
purchase or otherwise acquire securities or obligations of the lessor;
$
-------------
(viii) obligations under any contract for the sale or use
of materials, supplies or other property, or the rendering of services,
if such contract (or any related document) requires that payment for
such materials, supplies or other property, or the use thereof, or
payment for such services, shall be subordinated to any indebtedness
(of the purchaser or user of such materials, supplies or other property
or the Person entitled to the benefit of such services) owed or to be
owed to any Person; $
-------------
(ix) obligations under any other contract which, in economic
effect, is substantially equivalent to a guarantee; $
-------------
SUBTOTAL [(i)+(ii)+(iii)+(iv)+(v)+(vi)+(vii)+(viii)+(ix)] $
-------------
(x) But excluding (a) loans, advances and capital
contributions by the Guarantor to any Subsidiary or by any Subsidiary
to the Guarantor or another Subsidiary or a guarantee of the
obligations of a Subsidiary under an executory contract to purchase or
sell a business and (b) any amounts which may be due in connection with
the "Gross-Up Transactions" described in Note 15 of the audited
consolidated financial statements of the Guarantor and its Subsidiaries
for the fiscal year ended December 31, 1999, as incorporated in the
Guarantor's annual report on Form 10-K filed with the Securities and
Exchange Commission
CONSOLIDATED DEBT [SUBTOTAL above - (x)] $
=============
2. EBITDA
(i) Consolidated Net Earnings (determined as set forth in
Item 2.1 below), $
-------------
</TABLE>
A1-1
<PAGE> 45
<TABLE>
<S> <C>
(ii) plus, to the extent deducted in the determination of
Consolidated Net Earnings,
(a) all provisions for federal, state and other income
tax $
-------------
(b) Consolidated Interest Expense (determined as set
forth in Item 2.2 below) and $
-------------
(c) provisions for depreciation and amortization $
-------------
Subtotal of (a), (b) and (c) $
-------------
EBITDA [(i) + (ii)] $
=============
Note: Any acquisition or disposition by the Guarantor or any
Subsidiary during any period of all of the capital stock of (or other
equity interests in) any Person, or of all or substantially all of the
assets of any Person, shall in each case be reflected and given effect
in EBITDA as if such acquisition or disposition occurred on the first
day of such period, so long as, in the case of any such acquisition,
the Guarantor shall have delivered or caused to be delivered to each
holder of Notes financial information, set forth within audited
financial statements regarding such Person, disclosing the prior
operating results of such Person, and provided further, that for
purposes of calculating EBITDA, the consummation of the
Formation/Consummation Transactions will be taken into account by
including, on a pro forma basis, Herald's share of EBITDA for periods
prior to the Date of Closing, as derived from the "St. Louis Agency
adjustment" reflected in prior consolidated financial statements.
2.1 Consolidated Net Earnings
-------------------------
(i) Consolidated gross revenues of the Guarantor and its
Subsidiaries determined in accordance with generally accepted
accounting principles $
-------------
(ii) less all operating and non-operating expenses of the
Guarantor and its Subsidiaries determined in accordance with generally
accepted less accounting principles $
-------------
CONSOLIDATED NET EARNINGS [(i) - (ii)] $
=============
Note: The above include all charges of a property character (including
current and deferred taxes on income, provision for taxes on
unremitted foreign earnings which are included in gross revenues, and
current additions to reserves), but do not include in gross revenues
any gains --- (net of expenses and taxes applicable thereto) in excess
of losses resulting from the sale, conversion or other disposition of
capital assets (i.e., assets other than current assets) in excess of
an aggregate amount of $5,000,000 in any one year, any gains resulting
from the write-up of assets, any equity of the Guarantor or any
Subsidiary in the unremitted earnings of any corporation which is not
a Subsidiary or any earnings of any Person acquired by the Guarantor
or any Subsidiary through purchase, merger or consolidation or
otherwise for any year prior to the year of acquisition, or any
deferred credit representing the excess of equity in any Subsidiary at
the date of acquisition over the cost of investment in such
Subsidiary.
2.2 Consolidated Interest Expense
-----------------------------
The sum (without duplication) of the following (in each case,
eliminating all offsetting debits and credits between the Guarantor
and its Subsidiaries and all other items required to be eliminated in
the course of the preparation of consolidated financial statements of
the Guarantor and its Subsidiaries in accordance with generally
accepted accounting principles) for the period covered by this
Compliance Certificate for the Guarantor and its Subsidiaries:
(i) all interest and prepayment charges in respect of Debt
of the Guarantor and its Subsidiaries (including imputed interest in
respect of Capitalized Lease obligations and net costs of any interest
rate or currency hedging or similar arrangements) deducted in
determining consolidated net income for such period, together with all
interest capitalized or deferred during
</TABLE>
A1-2
<PAGE> 46
<TABLE>
<S> <C>
such period and not deducted in determining consolidated net income for
such period plus $
-------------
(ii) all debt discount and expense amortized or required to
be amortized in the determination of consolidated net income for such
period $
-------------
CONSOLIDATED INTEREST EXPENSE [(i) + (ii)] $
=============
3. CONSOLIDATED NET WORTH
(i) Total amount of total assets of the Guarantor and its
Subsidiaries as of the last day of the fiscal quarter most recently
then ended, determined on a consolidated basis in accordance with
generally accepted accounting principles less $
-------------
(ii) Total liabilities of the Guarantor and its Subsidiaries
as of the last day of the fiscal quarter most recently then ended,
determined on a consolidated basis in accordance with generally
accepted accounting principles. $
-------------
CONSOLIDATED NET WORTH [(i) - (ii)] $
=============
4. PRIORITY DEBT $
=============
(i) Aggregate amount of all Debt of the Guarantor secured
by a Lien plus $
-------------
(ii) All secured and unsecured Debt of all Subsidiaries
(excluding Debt represented by the Notes) $
-------------
PRIORITY DEBT [(i) + (ii)] $
=============
5. CAPITALIZATION
(i) Consolidated Net Worth plus $
-------------
(ii) Consolidated Debt $
-------------
CAPITALIZATION [(i) + (ii)] $
==============
</TABLE>
A1-3
<PAGE> 1
EXHIBIT 10.3
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "License Agreement") is made as of the 1st day
of May, 2000, by and between PULITZER INC., a Delaware corporation ("Licensor"),
and ST. LOUIS POST-DISPATCH LLC, a Delaware limited liability company
("Licensee").
WHEREAS, Licensor, Pulitzer Technologies, Inc., a Delaware corporation
("PTI"), The Herald Company, Inc., a New York corporation ("Herald"), and
Licensee have entered into a Joint Venture Agreement, dated as of May 1, 2000
(the "Joint Venture Agreement"), pursuant to which Pulitzer, PTI and Herald have
agreed to contribute to Licensee their respective interests in certain assets
and liabilities relating to the St. Louis Post-Dispatch in exchange for equity
interests in Licensee; and
WHEREAS, the Joint Venture Agreement provides that Licensor shall grant to
Licensee a license as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements herein contained, the parties agree as follows:
1. Grant of License. Licensor hereby grants Licensee a royalty-free
license and right (which license and right shall be exclusive against all
persons and entities, except for Licensor and its Affiliates, as that term is
defined in the Joint Venture Agreement), to use (A)(i) the whole or any part of
the name, title and masthead of the St. Louis Post-Dispatch, together with (ii)
the phrase "Founded By Joseph Pulitzer, December 12, 1878" in the manner set
forth in Exhibit A hereto, (iii) the names "Joseph Pulitzer", "Joseph Pulitzer",
"Joseph Pulitzer" and "Michael E. Pulitzer" in the manner set forth in Exhibit B
hereto and (iv) the statement of the platform of the Post-Dispatch, but only
together with the bust of Joseph Pulitzer, the phrase "The Post-Dispatch
Platform" and the phrase "Joseph Pulitzer, April 10, 1907" in the manner set
forth in Exhibit C hereto; (B) all intangible rights and privileges of whatever
kind belonging or incidental to the foregoing, including any and all copyrights
and trademarks relating thereto and (C) any and all copyrights in the issues of
the St. Louis Post-Dispatch published before, on or after the date hereof and
the right to reprint all or any part thereof (collectively, the "Names and Other
Rights").
2. Term. The term of this License shall remain in effect for so long as
and only for so long as Licensee is in existence and actively conducting the
various activities of the St. Louis Post-Dispatch.
<PAGE> 2
3. Subsequent Event. If Licensor shall assign its Interest (as defined in
the Operating Agreement) to Herald or its permitted successor or assignee
pursuant to Section 1(a) of the Indemnity Agreement of even date herewith
between Licensor and Herald, Licensor shall simultaneously assign all its right,
title and interest in and to the Names and Other Rights to Herald or its
permitted successor or assignee.
4. Control by Licensor. Licensor shall maintain quality control of the
manner in which the Names and Other Rights are used by Licensee. To assure
Licensee's compliance with this Agreement, Licensee shall (i) provide Licensor,
from time to time but not less than annually, with such samples of Licensee's
use of the Names and Other Rights as Licensor shall request and (ii) promptly
comply with any changes in its manner of use of the Names and Other Rights as
Licensor, in writing, shall request consistent with the terms and provisions
hereof.
5. Maintenance and Renewal. Licensor shall be responsible for, and
Licensee shall cooperate with and assist Licensor in, maintaining and renewing
all copyright and trademark protection and registration of the Names and Other
Rights.
6. Default. If, for a period of six consecutive months, Licensee fails to
use the Names and Other Rights in conducting the various activities of the St.
Louis Post-Dispatch, or if Licensee becomes insolvent, or if Licensee initiates
proceedings in any court under any bankruptcy, reorganization or similar law or
for the appointment of a trustee or receiver of Licensee's property, or if
Licensee is adjudicated a bankrupt or debtor under any bankruptcy,
reorganization or similar law, or if there shall be a default in the performance
of any agreement herein contained on the part of Licensee and such default
remains uncured for more than 180 days after written notice of such default is
given by Licensor, this License Agreement (if Licensor so elects by written
notice to Licensee) shall immediately thereupon become null and void, and
Licensee shall have no further right to use of the Names and Other Rights.
7. Assignment and Sublicense. Licensee shall not, without Licensor's
prior written consent, directly or indirectly, assign or sublicense its rights
hereunder.
8. Indemnification. Licensor agrees to indemnify and hold Licensee and
its officers, agents and employees harmless from and against any and all claims,
actions, liabilities, losses, damages, costs and expenses, including reasonable
attorneys' fees, arising out of any claim that Licensor did not have the right
and power to enter into and perform this License Agreement and to license the
Names and Other Rights to Licensee as provided in this License Agreement without
infringing the rights of any third party. Licensee shall notify Licensor
promptly of any adverse use or infringement of the use of the Names and Other
Rights by any third parties and assist Licensor in all reasonable ways in the
protection thereof. Subject to the first sentence of this Section 7, Licensor
shall not be liable to Licensee for any loss or liability suffered by Licensee
by reason of Licensee's use of the Names and Other Rights or by reason of any
infringement thereof by any third parties unless caused by Licensor.
-2-
<PAGE> 3
9. Waivers. No assent, express or implied, by either party hereto, to any
breach of any of the other party's covenants or agreements shall be deemed or
taken to be a waiver of any succeeding breach of the same covenant or agreement.
10. Notices. All communications and notices between the parties hereto
shall be in writing and given as provided in the Joint Venture Agreement and
addressed as specified therein.
11. Law Governing. This License Agreement shall be governed by, construed
and enforced in accordance with the internal laws of the State of New York,
without giving effect to the conflicts of laws principles thereof.
12. Counterparts. This License Agreement may be executed in counterparts,
each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement, and any party hereto may execute this
License Agreement by signing one or more counterparts hereof.
[The remainder of this page is intentionally left blank]
-3-
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have executed this License Agreement
as of the day and year first above written.
PULITZER INC.
By: /s/ Ronald H. Ridgway
-------------------------------
Name: Ronald H. Ridgway
Title: Senior Vice President -
Finance
ST. LOUIS POST-DISPATCH LLC
By: /s/ Robin L. Spears
-------------------------------
Name: Robin L. Spears
Title: Vice President - Finance
<PAGE> 5
EXHIBIT A
FOUNDED BY JOSEPH PULITZER, DECEMBER 12, 1878
ST. LOUIS POST-DISPATCH
JOSEPH PULITZER EDITOR & PUBLISHER ROBERT C. WOODWORTH PRESIDENT & CEO
1878-1911
TERRANCE C.Z. EGGER PUBLISHER
JOSEPH PULITZER EDITOR & PUBLISHER MATTHEW G. KRANER GENERAL MANAGER
1912-1955 --------------------------------------------
JOSEPH PULITZER EDITOR & PUBLISHER
1955-1986 RICHARD K. WEIL, JR. EXECUTIVE EDITOR
CHAIRMAN 1979-1993
ARNIE ROBBINS MANAGING EDITOR
MICHAEL E. PULITZER CHAIRMAN & CEO
1993-1999 CHRISTINE A. BERTELSON EDITORIAL PAGE EDITOR
CHAIRMAN 1999-
VIRGIL TIPTON DEPUTY EDITOR
<PAGE> 6
EXHIBIT B
FOUNDED BY JOSEPH PULITZER, DECEMBER 12, 1878
ST. LOUIS POST-DISPATCH
<TABLE>
<S> <C>
JOSEPH PULITZER EDITOR & PUBLISHER ROBERT C. WOODWORTH PRESIDENT & CEO
1878-1911 TERRANCE C.Z. EGGER, PUBLISHER
JOSEPH PULITZER EDITOR & PUBLISHER MATTHEW G. KRANER, GENERAL MANAGER
1912-1955
JOSEPH PULITZER, EDITOR & PUBLISHER
1955-1986 RICHARD K. WEIL, JR., EXECUTIVE EDITOR
CHAIRMAN 1979-1993 ARNIE ROBBINS, MANAGING EDITOR
MICHAEL E. PULITZER, CHAIRMAN & CEO CHRISTINE A. BERTELSON,
EDITORIAL PAGE EDITOR
1993-1998
CHAIRMAN 1999 - VIRGIL TIPTON, DEPUTY EDITOR
</TABLE>
<PAGE> 7
EXHIBIT C
================================================================================
I KNOW THAT MY RETIREMENT WILL MAKE NO DIFFERENCE IN ITS CARDINAL
PRINCIPLES. THAT IT WILL ALWAYS FIGHT FOR PROGRESS AND REFORM,
NEVER TOLERATE INJUSTICE OR CORRUPTION, ALWAYS FIGHT
[PICTURE]DEMAGOGUES OF ALL PARTIES, NEVER BELONG TO ANY PARTY, ALWAYS
OPPOSE PRIVILEGED CLASSES AND PUBLIC PLUNDERERS, NEVER LACK
SYMPATHY WITH THE POOR, ALWAYS REMAIN DEVOTED TO THE PUBLIC
WELFARE, NEVER BE SATISFIED WITH MERELY PRINTING NEWS, ALWAYS BE
DRASTICALLY INDEPENDENT, NEVER BE AFRAID TO ATTACK WRONG,
WHETHER BY PREDATORY PLUTOCRACY OR PREDATORY POVERTY.
THE POST-DISPATCH PLATFORM JOSEPH PULITZER, APRIL 10, 1907
<PAGE> 1
EXHIBIT 10.4
NON-CONFIDENTIALITY AGREEMENT
THIS AGREEMENT (the "Agreement"), is made as of May 1, 2000, by and among
the undersigned (including their respective partners, members, officers,
employees and agents) and any other persons who agree to be bound by the terms
and conditions of this Agreement by signing a copy hereof (each a "Party" and
collectively, the "Parties").
WHEREAS, Pulitzer Inc. and Pulitzer Technologies, Inc. (collectively, the
"Pulitzer Parties") and The Herald Company, Inc.( "Herald" and, together with
Pulitzer Parties, the "Permittees") have investigated the possibility of
entering into a transaction involving their respective interests in the assets
and operations of the St. Louis Post-Dispatch and certain related businesses
(the "Transaction");
WHEREAS, the other Parties to this Agreement (collectively, the
"Permitters")serve as advisors to either the Pulitzer Parties or Herald in
connection with, or otherwise have participated in the planning, negotiation,
organization or management of the proposed Transaction;
WHEREAS, the Parties hereto desire this Agreement to be an agreement
described in Section 301.6111-2T(c)(2) of the Treasury Regulations authorizing
relevant persons to make certain disclosures, and
WHEREAS, all of the Parties desire to confirm their understanding regarding
the right of each Party to disclose information regarding the proposed
Transaction;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the Parties hereby agree as follows:
1. Authorization of Disclosure. Subject to the applicable provisions of
federal, state and other securities laws which may restrict or limit the
disclosure of material non-public information, and subject to Section 6.1 of the
Operating Agreement of St. Louis Post-Dispatch LLC, each of the Parties hereby
confirms that it has granted to each Permittee permission to disclose the
structure and tax aspects of the Transaction to any and all persons, without
limitation of any kind.
2. Representations and Covenants.
(a) Each Party (other than the Permittees) hereby represents that,
subject to (1) the applicable provisions of federal, state and other securities
laws which may restrict or limit the disclosure of material non-public
information, and (2) professional canons and rules limiting the disclosure of
client confidences and client secrets without client consent, (i) such Party
does not have any express or implied understanding or agreement with or for the
benefit of any other
<PAGE> 2
person which would render the Transaction "confidential" within the meaning of
Section 301.6111-2T(c) of the Treasury Regulations and (ii) prior to the date
hereof, such Party was not aware of any express or implied understanding or
agreement with or for the benefit of any other person which would render the
Transaction "confidential" within the meaning of Section 301.6111-2T(c) of the
Treasury Regulations.
(b) Each Party (other than the Permittees) covenants that, subject to (1)
the applicable provisions of federal, state and other securities laws which may
restrict or limit the disclosure of material non-public information, (2) any
other law, or order, judgment, or decree of any court or government agency that
may limit the disclosure of information, and (3) professional canons and rules
limiting the disclosure of client confidences and client secrets without client
consent such Party will not enter into any express or implied understanding or
agreement with or for the benefit of any other person which would render the
Transaction "confidential" within the meaning of Section 301.6111-2T(c) of the
Treasury Regulations.
3. Additional Parties. Each Party agrees that prior to the participation
(within the meaning of the Treasury Regulations under Section 6111 of the
Internal Revenue Code of 1986, as amended (the "Code")) in the Transaction of
any person who is not a Party, directly or indirectly, such person shall be
required to execute a copy of this Agreement as a condition to such Person's
participation in the Transaction.
4. Privilege. Each Permittee acknowledges that (1) certain information
regarding the Transaction is "secret" information but is not a "confidential"
information that is subject to the attorney-client privilege or the privilege
for confidential tax advice under Section 7525(a) of the Code, (2) if such
Permittee did not execute this Non-Confidentiality Agreement, such Permittee's
legal advisors would be obligated by professional rules and canons not to
disclose such "secret" information, and (3) by executing this
Non-Confidentiality Agreement, such Permittee hereby waives its rights to limit
the disclosure of such "secret information" in respect of any information for
which such waiver would be required to permit this Agreement to be an agreement
described in Section 301.6111-2T(c)(2) of the Treasury Regulations.
Notwithstanding anything to the contrary, this Agreement does not, and is not
intended to, waive any Party's rights under the attorney-client privilege or the
privilege for confidential tax advice under Section 7525(a) of the Code.
5. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without giving
effect to any choice of law provision or rule.
6. Amendment. This Agreement may be amended only with the written consent
of each of the Parties.
7. Counterparts; parties. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same
<PAGE> 3
Agreement. The agreement shall be effective among all parties who may from time
to time execute the agreement, regardless of whether (x) any other parties named
herein execute this Agreement or (y) any additional parties execute this
Agreement.
8. Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
[The remainder of this page is intentionally left blank]
<PAGE> 4
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first written above.
PULITZER INC.
By: /s/ Ronald H. Ridgway
--------------------------------------
Name: Ronald H. Ridgway
Title: Senior Vice President - Finance
THE HERALD COMPANY, INC.
By: /s/ S.I. Newhouse, Jr.
--------------------------------------
Name: S.I. Newhouse, Jr.
Title: Vice President
DELOITTE &TOUCHE LLP
By: /s/ Donald B. Poling
--------------------------------------
Name: Donald B. Poling
Title: Partner
FULBRIGHT & JAWORSKI L.L.P.
By: /s/ Richard A. Palmer
--------------------------------------
Name: Richard A. Palmer
Title: Partner
GOLDMAN, SACHS & CO.
By: /s/ GOLDMAN, SACHS & CO.
--------------------------------------
Name: Ivan Ross
Title: Managing Director
<PAGE> 5
HUNTLIEGH SECURITIES CORPORATION
By: /s/ James M. Snowden, Jr.
--------------------------------------
Name: James M. Snowden, Jr.
Title: Executive Vice President
KING & BALLOW
By: /s/ Richard C. Lowe
--------------------------------------
Name: Richard C. Lowe
Title: Partner
PAUL SCHERER & COMPANY LLP
By: /s/ Paul L. Newman
--------------------------------------
Name: Paul L. Newman
Title: Partner
SABIN, BERMANT & GOULD
By: /s/ Craig D. Holleman
--------------------------------------
Name: Craig D. Holleman
Title: Partner
Dow Lohnes & Albertson
By: /s/ J. Michael Hines
--------------------------------------
Name: J. Michael Hines
Title: Member
FRIED, FRANK,HARRIS, SHRIVER & JACOBSON
By: /s/ Stuart Z. Katz
--------------------------------------
Name: Stuart Z. Katz
Title: Partner
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<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 88,627
<SECURITIES> 312,419
<RECEIVABLES> 45,574
<ALLOWANCES> 2,661
<INVENTORY> 4,361
<CURRENT-ASSETS> 468,130
<PP&E> 174,095
<DEPRECIATION> 83,162
<TOTAL-ASSETS> 987,226
<CURRENT-LIABILITIES> 46,556
<BONDS> 0
0
0
<COMMON> 226
<OTHER-SE> 837,345
<TOTAL-LIABILITY-AND-EQUITY> 987,226
<SALES> 105,777
<TOTAL-REVENUES> 105,777
<CGS> 38,891
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<OTHER-EXPENSES> 6,509
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<INCOME-TAX> 7,114
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