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EXHIBIT 4.5
EXECUTION COPY
INDEMNITY, SUBROGATION and
CONTRIBUTION AGREEMENT dated as of May 7,
1999, among AMERICAN MEDIA OPERATIONS,
INC., a Delaware corporation (the
"BORROWER"), each subsidiary of American
Media, Inc. listed on Schedule I hereto
(each a "SUBSIDIARY" or a "GUARANTOR") and
THE CHASE MANHATTAN BANK, a New York
banking corporation ("CHASE"), as
collateral agent (in such capacity, the
"COLLATERAL AGENT") for the Secured Parties
(as defined in the Security Agreement).
Reference is made to (a) the Credit Agreement dated as of May 7, 1999
(as amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, American Media, Inc., the lenders from time to
time party thereto (the "LENDERS") and Chase, as administrative agent for the
Lenders (in such capacity, the "ADMINISTRATIVE AGENT"), and (b) the Guarantee
Agreement dated as of May 7, 1999, among the Guarantors and the Collateral
Agent (the "GUARANTEE AGREEMENT"). Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. The Guarantors have guaranteed the Obligations (as defined in
the Guarantee Agreement) pursuant to the Guarantee Agreement; the Guarantors
have granted Liens on and security interests in certain of their assets to
secure such guarantees. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit are conditioned on, among other things,
the execution and delivery by the Borrower and the Guarantors of an agreement
in the form hereof.
Accordingly, the Borrower, each Guarantor and the Collateral Agent
agree as follows:
SECTION 1. INDEMNITY AND SUBROGATION. In addition to all such rights
of indemnity and subrogation as the Guarantors may have under applicable law
(but subject to Section 3), the Borrower agrees that (a) in the event a payment
shall be made by any Guarantor under the Guarantee Agreement, the Borrower
shall indemnify such Guarantor for the full amount of such payment and such
Guarantor shall be subrogated to the rights of the Person to whom such payment
shall have been made to the extent of such payment and (b) in the event any
assets of any Guarantor shall be sold pursuant to any Security Document to
satisfy a claim of any Secured Party, the Borrower shall indemnify such
Guarantor in an amount equal to the greater of the book value or the fair
market value of the assets so sold.
SECTION 2. CONTRIBUTION AND SUBROGATION. Each Guarantor (a
"CONTRIBUTING GUARANTOR") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee Agreement or
assets of any other Guarantor shall be sold pursuant to any Security Document
to satisfy a claim of any Secured Party and such other Guarantor (the "CLAIMING
GUARANTOR") shall not have been fully indemnified by the Borrower as provided
in Section 1, the Contributing Guarantor shall indemnify the Claiming
Guarantor in an amount equal to the amount of such payment or the greater of
the book value or the fair market value of such assets, as the case may be, in
each case multiplied by a fraction of which the numerator shall be the net
worth of the Contributing Guarantor on the date hereof and the denominator
shall be the aggregate net worth of all the Guarantors on the date hereof (or,
in the case of any Guarantor becoming a party hereto pursuant to Section 12,
the date of the Supplement hereto executed and delivered by such Guarantor).
Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant
to this Section 2 shall be subrogated to the rights of such Claiming Guarantor
under Section 1 to the extent of such payment.
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SECTION 3. SUBORDINATION. Notwithstanding any provision of this
Agreement to the contrary, all rights of each of the Guarantors under Sections
1 and 2 and all other rights of each of the Guarantors in respect of indemnity,
contribution or subrogation from any other Loan Party under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in
cash of all Obligations which are then due and payable whether at maturity, by
acceleration or otherwise. No failure on the part of the Borrower or any
Guarantor to make the payments required by Sections 1 and 2 (or any other
payments required under applicable law or otherwise) shall in any respect limit
the obligations and liabilities of any Guarantor with respect to its
obligations hereunder, and each Guarantor shall remain liable for the full
amount of the obligations of such Guarantor hereunder.
SECTION 4. TERMINATION. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as the L/C Exposure has not been
reduced to zero, the Issuing Bank is still obligated to issue Letters of Credit
under the Credit Agreement and any of the Commitments under the Credit
Agreement have not been terminated, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by any Secured Party
or any Guarantor upon the bankruptcy or reorganization of the Borrower, any
Guarantor or otherwise.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. NO WAIVER; AMENDMENT. (a) No failure on the part of the
Collateral Agent or any Guarantor to exercise, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy by the
Collateral Agent or any Guarantor preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided
by law. None of the Collateral Agent and the Guarantors shall be deemed to have
waived any rights hereunder unless such waiver shall be in writing and signed
by such parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Borrower, the Guarantors and the Collateral Agent, subject to any consent
required in accordance with Section 9.02 of the Credit Agreement.
SECTION 7. NOTICES. All communications and notices hereunder shall be
in writing and given as provided in the Guarantee Agreement and addressed as
specified therein.
SECTION 8. BINDING AGREEMENT; ASSIGNMENTS. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors
and assigns. Neither the Borrower nor any Guarantor may assign or transfer any
of its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void) without the consent required in accordance with Section
9.02 of the Credit Agreement. Notwithstanding the foregoing, at the time any
Guarantor is released from its obligations under the Guarantee Agreement in
accordance with such Guarantee Agreement and the Credit Agreement, such
Guarantor will cease to have any rights or obligations under this Agreement.
SECTION 9. SURVIVAL OF AGREEMENT; SEVERABILITY. (a) All covenants and
agreements made by the Borrower and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with
this Agreement or the other Loan Documents shall be considered to have been
relied upon by the Collateral Agent, the other Secured Parties and each
Guarantor and shall survive the making by the Lenders of the Loans and the
issuance of the Letters of Credit by the Issuing Bank and shall continue in
full force and effect as long as the principal of or any accrued interest on
any Loans or any other fee or amount payable under the
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Credit Agreement or this Agreement or under any of the other Loan Documents is
outstanding and unpaid and as long as the Commitments have not been terminated
or the L/C Exposure does not equal zero.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as
such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 10. COUNTERPARTS. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement shall be effective with
respect to any Guarantor when a counterpart bearing the signature of such
Guarantor shall have been delivered to the Collateral Agent. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement.
SECTION 11. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. ADDITIONAL GUARANTORS. Pursuant to Section 5.12 of the
Credit Agreement, each Subsidiary Loan Party of the Borrower that was not in
existence or not a Subsidiary Loan Party on the date of the Credit Agreement
and each Unrestricted Subsidiary that is designated as a Restricted Subsidiary
is required to enter into the Guarantee Agreement as a Guarantor upon becoming
a Subsidiary Loan Party. Upon execution and delivery, after the date hereof, by
the Collateral Agent and such a Subsidiary of an instrument in the form of
Annex 1 hereto, such Subsidiary shall become a Guarantor hereunder with the
same force and effect as if originally named as a Guarantor hereunder. The
execution and delivery of any instrument adding an additional Guarantor as a
party to this Agreement shall not require the consent of any Guarantor
hereunder.
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The rights and obligations of each Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Guarantor as a party
to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the date first appearing
above.
AMERICAN MEDIA OPERATIONS, INC.,
By: /s/ Peter A. Nelson
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Name: Peter A. Nelson
Title: Executive Vice President
and Chief Financial Officer
EACH OF THE OTHER SUBSIDIARIES
LISTED ON SCHEDULE I HERETO, as a
Guarantor,
By: /s/ Peter A. Nelson
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Name: Peter A. Nelson
Title: Executivie Vice President
and Chief Financial Officer
THE CHASE MANHATTAN BANK, as
Collateral Agent,
By: /s/ Marian Schulman
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Name: Marian Schulman
Title: Vice President
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Schedule I to the
Indemnity, Subrogation and
Contribution Agreement
SUBSIDIARY OBLIGORS
American Media Marketing, Inc.
Biocide, Inc.
Country Weekly, Inc.
Distribution Services, Inc.
Fairview Printing, Inc.
Frontline Marketing, Inc.
Health Xtra, Inc.
Marketing Services, Inc.
NDSI, Inc.
National Enquirer, Inc.
Retail Marketing Newwork Inc.
SOM Publishing, Inc.
Star Editorial, Inc.
Weekly World News, Inc.
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Annex 1 to the
Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the
Indemnity, Subrogation and Contribution Agreement dated as of
May 7, 1999 (as the same may be amended, supplemented or
otherwise modified from time to time, the "INDEMNITY,
SUBROGATION AND CONTRIBUTION AGREEMENT"), among AMERICAN MEDIA
OPERATIONS, INC., a Delaware corporation (the "BORROWER"), each
subsidiary of American Media, Inc. listed on Schedule I thereto
(each, a "SUBSIDIARY" or a "GUARANTOR"), and THE CHASE MANHATTAN
BANK, a New York banking corporation ("CHASE"), as collateral
agent (the "COLLATERAL AGENT") for the Secured Parties (as
defined in the Security Agreement).
A. Reference is made to (a) the Credit Agreement dated as of May 7, 1999
(as amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, American Media, Inc., the lenders from time to
time party thereto (the "LENDERS") and Chase, as administrative agent for the
Lenders (in such capacity, the "ADMINISTRATIVE AGENT"), and (b) the Guarantee
Agreement dated as of May 7, 1999, among the Guarantors and the Collateral
Agent (the "GUARANTEE AGREEMENT").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.12
of the Credit Agreement, each Subsidiary Loan Party of the Borrower that was
not in existence or not a Subsidiary Loan Party on the date of the Credit
Agreement and each Unrestricted Subsidiary that is designated as a Restricted
Subsidiary is required to enter into the Indemnity, Subrogation and
Contribution Agreement as a Guarantor upon becoming a Subsidiary Loan Party.
Section 12 of the Indemnity, Subrogation and Contribution Agreement provides
that additional Subsidiaries of the Borrower may become Guarantors under the
Indemnity, Subrogation and Contribution Agreement by execution and delivery of
an instrument in the form of this Supplement. The undersigned Subsidiary (the
"NEW GUARANTOR") is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Guarantor under the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
additional Loans and the Issuing Bank to issue additional Letters of Credit and
as consideration for Loans previously made and Letters of Credit previously
issued.
Accordingly, the Collateral Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Indemnity, Subrogation and Contribution Agreement with the
same force and effect as if originally named therein as a Guarantor and the New
Guarantor hereby agrees to all the terms and provisions of the Indemnity,
Subrogation and Contribution Agreement applicable to it as a Guarantor
thereunder. Each reference to a "Guarantor" in the Indemnity, Subrogation and
Contribution Agreement shall be deemed to include the New Guarantor. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when
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taken together shall constitute a single contract. This Supplement shall become
effective when the Collateral Agent shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New Guarantor
and the Collateral Agent. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so
long as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not
in any way be affected or impaired. The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have duly
executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
[NAME OF NEW GUARANTOR],
By:
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral
Agent,
By:
------------------------------------
Name:
Title:
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Schedule I to Supplement No. [ ]
to the Indemnity, Subrogation and
Contribution Agreement
GUARANTOR
Name Address