FORBEARANCE AGREEMENT
This
Forbearance Agreement (the “Agreement”),
dated as of February 26, 2009, by and among Xxxxxx Publishing Group, LLC (“MPG”)
and Xxxxxx Publishing Finance Co. (“MPF”)
(MPG and MPF, each an “Issuer”
and together, the “Issuers”),
each of the undersigned entities listed as guarantors (collectively, the “Guarantors”),
and each of the undersigned holders of the Notes (as defined below) and/or, to
the extent not signing as a holder, their investment advisors or managers
identified on Annex
A hereto (collectively, the “Holders”).
Each of MPG, MPF and each of the Guarantors are referred to individually as a
“Xxxxxx
Company”, and collectively as the “Xxxxxx
Companies.”
W
I T N E S S E T H:
WHEREAS,
the Issuers, the Guarantors and Wachovia Bank, N.A., as Trustee (including any
successor trustee(s), the “Indenture
Trustee”) have entered into that certain Indenture (as amended, modified
or supplemented prior to the date hereof, and together with all exhibits
thereto, the “Indenture”),
dated as of August 7, 2003, in respect of the Issuers’ $278,478,000 principal
amount of 7% Senior Subordinated Notes due 2013 (the “Notes”);
WHEREAS,
the Holders collectively hold more than $226,000,000 in aggregate principal
amount of the Notes, representing more than 80% of the aggregate principal
amount of the Notes outstanding, and certain of those Holders have formed an
informal group (the “Ad
Hoc Group”), for the purposes of entering into discussions with the legal
and financial advisors to the Xxxxxx Companies concerning a potential
restructuring of the Xxxxxx Companies and have retained Stroock & Stroock
& Xxxxx LLP (“Stroock”)
as restructuring counsel and FTI Consulting, Inc. as financial advisor (“FTI”,
and together with Stroock, the “Advisors”)
in connection with such discussions;
WHEREAS,
on February 2, 2009, the Issuers failed to make the interest payment due on the
Notes pursuant to the Indenture and the Notes (the “Missed
Payment”), and such failure constitutes a Default under the Indenture
(the “Existing
Default”);
WHEREAS,
the Issuers acknowledge and agree that the Existing Default has occurred and is
continuing as of the date hereof, and has not yet been
cured or waived;
WHEREAS,
the Issuers’ failure to make the Missed Payment on or before March 4, 2009,
together with interest on such defaulted interest pursuant to Sections 2.12 and
4.1 of the Indenture, shall (i) constitute an “Event of Default” under Section
6.1 of the Indenture (the “Payment
Default”) and (ii) permit the holders of at least twenty-five (25) percent of
the outstanding principal amount of the Notes to accelerate the maturity of the
Notes (the “Acceleration”), declare all amounts under the Notes and the
Indenture immediately due and payable, and exercise all other rights and
remedies available under the Indenture;
WHEREAS,
the Issuers and the Guarantors have requested that the Holders temporarily
forbear from exercising their rights and remedies under the Indenture, and from
directing the Indenture Trustee to exercise any such rights and remedies on the
Holders’ behalf resulting from the Existing Default and the Payment Default;
and
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WHEREAS,
the Holders are willing to grant the Issuers’ and Guarantors’ request for
forbearance described in the preceding paragraph on the terms and subject to the
conditions contained herein.
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION
1. Defined Terms. Each capitalized term used herein and not otherwise
defined herein shall have the meaning attributed to such term in the Indenture.
Each of the following capitalized terms shall have the meaning set forth
below:
“Credit
Agreement” means that certain Credit Agreement, dated as of December 14,
2005 (and as amended, modified or supplemented prior to the date hereof), by and
among MPG as Borrower, Xxxxxx Communications Company, LLC (“MCC”),
the Lenders party thereto, X.X. Xxxxxx Securities Inc. as Sole Lead Arranger and
Sole Bookrunner, The Bank of New York, Keybank, N.A., Suntrust Bank and Wachovia
Bank, N.A. as Co-Documentation Agents and X.X. Xxxxxx Xxxxx Bank, N.A. as
Administrative Agent (the “Administrative
Agent”).
“Forbearance
Effective Date” means the date on which each of the conditions to the
effectiveness of this Agreement specified in Section 3 of this Agreement is
satisfied.
“Forbearance
Period” means the period beginning on the Forbearance Effective Date and
ending on the Forbearance Termination Date.
“Forbearance
Termination Date” means the earliest date of occurrence of a Forbearance
Termination Event.
“Forbearance
Termination Event” means any of the following events:
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(a)
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the
acceleration of the maturity of any obligations under the Credit
Agreement;
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(b)
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the
termination of Waiver No. 3, dated as of February 26, 2009, by and among
MCC, MPG and the Administrative Agent (the “Waiver
No. 3”), relating to the Credit Agreement and/or the Xxxxxx
Companies’ and MCC’s existing senior secured term and revolving credit
facilities (the “Senior
Secured Credit Facilities”);
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(c)
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any
amendment, waiver, supplementation or modification of Waiver No. 3 without
the consent of the Ad Hoc Group or any other Holder party to this
Agreement;
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(d)
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the
occurrence of a Default or Event of Default under the Indenture other than
the Existing Default or the Payment
Default;
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(e)
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the
filing of a bankruptcy case, including, without limitation, a chapter 11
bankruptcy proceeding, by any of the Xxxxxx Companies or any subsidiary
thereof;
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(f)
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the
breach of, or failure of the Xxxxxx Companies to comply with, Section 6(b)
of this Agreement, without the need for prior written
notice;
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(g)
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the
failure of any representation or warranty made by the Xxxxxx Companies in
this Agreement to be true and correct in all material respects as of the
date when made;
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(h)
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the
failure by the Xxxxxx Companies to comply with any term, condition,
covenant or agreement contained in this Agreement;
or
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(i)
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5:00
p.m. EDT on April 6, 2009.
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“Remedial
Action” means any action to enforce any of the rights and remedies
available to the Holders or the Indenture Trustee under the Indenture, the Notes
and any amendments or supplements to the foregoing, including, without
limitation, any action to accelerate, or join in any request for acceleration
of, the Notes.
SECTION
2. Forbearance.
Subject to, and effective as of, the Forbearance Effective
Date:
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(a)
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Each
Holder hereby agrees that during the Forbearance Period it will not (x)
take any Remedial Action with respect to the Notes in connection with the
Existing Default or the Payment Default or (y) sell, pledge, hypothecate
or otherwise transfer any Notes, except to (A) a purchaser or other entity
who agrees in writing with the transferor (with a copy to and for the
benefit of the Xxxxxx Companies) prior to such transfer to be bound by all
of the terms of this Agreement with respect to the relevant Notes being
transferred to such purchaser, (B) a party who is already a signatory
hereto, (C) an entity that, as of the date hereof, was, and as of the date
of transfer, continues to be an entity that controls, is controlled by or
is under common control with the transferor; provided,
however,
that in the case of either (B) or (C) above, such party or entity, as the
case may be, shall automatically and without further action be subject to
the terms of this Agreement and deemed a party hereto. This Agreement
shall in no way be construed to preclude any Holder from acquiring
additional Notes, to the extent permitted by applicable law.
However, such Holder shall, automatically and without
further action, be subject to this Agreement with respect to any Notes so
acquired. The foregoing limited forbearance shall not be construed to
impair the ability of the Holders or the Indenture Trustee to exercise any
rights or remedies under the Indenture or take any Remedial Action at any
time after the Forbearance Period (regardless of whether or not such
Remedial Action relates to actions taken or payments received during the
Forbearance Period), or during the Forbearance Period for Defaults or
Events of Default other than the Existing Default and the Payment Default,
and nothing herein shall restrict, impair or otherwise affect the exercise
of the Holders’ rights under this
Agreement.
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(b)
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The
Holders’ forbearance, as provided herein, shall immediately cease on the
Forbearance Termination Date without requirement for any notice, demand or
presentment of any kind, and the Issuers and Guarantors at such time shall
be obligated to comply with and perform all terms, conditions and
provisions of the Indenture and the Notes without giving effect to the
forbearance set forth herein, and the Indenture Trustee and the Holders
may at any time thereafter proceed to exercise any and all of their rights
and remedies, including without limitation, their rights and remedies in
connection with the Existing Default, the Payment Default (if applicable)
and any other Defaults or Events of Default under the Indenture or rights
under this Agreement.
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(c)
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The
Holders’ forbearance is further expressly subject to and conditioned upon
the Xxxxxx Companies’ strict compliance with each and every material term
and provision of this Agreement, and, except with respect to the Existing
Default and the Payment Default, the Xxxxxx Companies’ strict compliance
with each and every term and provision of the Indenture and Notes, except
as such terms and provisions are modified by this
Agreement.
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(d)
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Each
of the Holders acknowledges that it will request that the Indenture
Trustee not take any Remedial Action, including without limitation, any
action to accelerate the Notes during the Forbearance Period. In the event
that the Indenture Trustee takes any action to declare all of the Notes
immediately due and payable pursuant to Section 6.2 of the Indenture
during the Forbearance Period solely due to the Existing Default or the
Payment Default, the Holders agree, pursuant to Section 6.2 of the
Indenture, to promptly rescind and cancel such acceleration; provided,
however,
that if the Holders rescind and cancel such acceleration by the Indenture
Trustee, each Holder shall defer its right to receive any cure of the
Payment Default until the end of the Forbearance Period; provided,
further,
however,
that such rescission and deferral shall be of no further force and effect
to the extent that the Forbearance Period with respect to this Agreement
or the waiver period identified in Section 2 of Waiver No. 3 has
ended.
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SECTION
3. Conditions to Effectiveness. The effectiveness of this Agreement shall
be subject to the satisfaction of each of the following
conditions:
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(a)
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Holders
representing in the aggregate more than seventy-five (75) percent of the
outstanding principal amount of the Notes shall have executed this
Agreement;
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(b)
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the
Holders shall have received from the Xxxxxx Companies a duly executed
counterpart of this Agreement from each Xxxxxx Company listed on the
signature pages hereto;
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(c)
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MPG,
MCC and the Administrative Agent shall have executed Waiver No. 3, in form
and substance acceptable to the Ad Hoc Group or any other Holder party to
this Agreement, and delivered a copy thereof to Stroock;
and
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(d)
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no
Default or Event of Default (except with respect to the Existing Default)
shall have occurred or be continuing as of the Forbearance Effective
Date.
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SECTION
4. Representations and Warranties of the Issuer. In order to induce the
Holders to enter into this Agreement, each of the Xxxxxx Companies hereby
jointly and severally represents and warrants to the Holders
that:
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(a)
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Representations
and Warranties. (i) immediately before and after giving effect to
this Agreement, No Default or Event of Default (other than the Existing
Default) has occurred under the Indenture or is continuing and (ii) they
are not aware of any representation or warranty made by the Xxxxxx
Companies that is contained in the Indenture, any Note or this Agreement
(as applicable) that is untrue or incorrect in any material respect as of
the date hereof, except to the extent that such representation or warranty
expressly relates to an earlier date, in which case it shall be true and
correct in all material respects as of such earlier
date.
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(b)
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Authorization.
Each of the Xxxxxx Companies has the power and authority to execute,
deliver and perform this Agreement. Each of the Xxxxxx Companies have
taken all necessary action (including, without limitation, obtaining
approval of its members, if necessary) to authorize its execution,
delivery and performance of this Agreement. No consent, approval or
authorization of, or declaration or filing with, any Governmental
Authority, and no consent of any other Person, is required in connection
with the Xxxxxx Companies’ execution, delivery and performance of this
Agreement, except for those already duly obtained. This Agreement has been
duly executed and delivered by each of Xxxxxx Companies and constitutes
the legal, valid and binding obligation of each of the Xxxxxx Companies,
enforceable against them in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or law). Each of
the Xxxxxx Companies’ execution, delivery or performance of this Agreement
does not conflict with, or constitute a violation or breach of, or
constitute a default under, or result in the creation or imposition of any
Lien upon the property of the Xxxxxx Companies by reason of the terms of
(i) any contract, mortgage, lease, agreement, indenture or instrument to
which the Xxxxxx Companies are a party or which is binding upon them or
any one of them or any of their properties, (ii) any law or regulation or
order or decree of any court applicable to the Xxxxxx Companies, or (iii)
the certificate of incorporation and bylaws, or the certificate of
formation and operating agreement, or other similar organizational
documents, as applicable, of the Xxxxxx
Companies.
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(c)
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The
Xxxxxx Companies acknowledge that, except as provided herein, the Holders
have made no assurances whatsoever concerning any possibility of any
extension of the Forbearance Period, any other forbearance or similar
arrangement or any other limitations on the exercise of their rights,
remedies and privileges under or otherwise in connection with the
Indenture and/or applicable law.
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SECTION
6. Covenants.
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(a)
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Meetings/Due
Diligence/Access.
The Xxxxxx Companies agree to provide the Advisors reasonable
access to their officers, advisors, facilities and books and records, and
otherwise reasonably cooperate in connection with the Advisors’ due
diligence in connection with a potential restructuring transaction. The
Xxxxxx Companies further agree to make their officers and advisors
available at reasonable times and places to discuss their business plan
and the Xxxxxx Companies’ business and operations with the Advisors (who
may be accompanied by any Holders who have entered into a written
confidentiality agreement with the MPG). The Xxxxxx Companies agree to use
their best efforts to respond to all reasonable due diligence requests
that have been or are
received.
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(b)
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Public
Reporting of Agreement. Within two (2) business days after the
Forbearance Effective Date, MPG shall file or cause to be filed a Form 8-K
with the U.S. Securities and Exchange Commission, in form and substance
reasonably acceptable to Stroock, generally describing the existence and
terms of this Agreement. MPG shall not disclose any of the Holders’ names
or their respective ownership (expressed as a percentage or otherwise) of
the Notes in such Form 8-K, except as specifically contemplated by Section
14 hereof. The Xxxxxx Companies hereby acknowledge and agree that, upon a
failure of MPG to comply with this Section 6(b), the Holders shall have
the right to disseminate a press release generally describing the
existence and terms of this Agreement and shall have no liability to the
Xxxxxx Companies arising
therefrom.
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SECTION
7. Effect
on the Indenture and the Notes. Except as specifically set forth above
with respect to each Holder’s agreement to not enforce its rights under the
Indenture and the Notes during the Forbearance Period with respect to the
Existing Default and the Payment Default, all of the terms of the Indenture
shall remain unchanged and in full force and effect. Except as specifically set
forth herein, each Holder’s execution of this Agreement shall not constitute:
(i) a waiver of any of the rights or remedies of such Holder or the Indenture
Trustee under the Indenture, including, but not limited to, any rights or
remedies with respect to the Existing Default or the Payment Default and right
to receive default interest pursuant to Sections 2.12 and 4.1 of the Indenture,
which shall continue in existence subject only to the Holders’ agreement, as set
forth in this Agreement, not to take any of the actions set forth in Section
2(a) hereof based upon the Existing Default or the Payment Default during the
Forbearance Period; or (ii) a waiver, forbearance or other accommodation with
respect to any other Default or Event of Default now existing or hereafter
arising under the Indenture. For the avoidance of doubt, notwithstanding the
provisions contained in this Agreement, all covenants and obligations of the
Issuers and the Guarantors under the Indenture following the occurrence of a
Default and/or Event of Default (including the Existing Default and the Payment
Default) under the Indenture shall remain unchanged and in full force and
effect.
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SECTION 8.
Costs
and Expenses. The Xxxxxx Companies agree to pay on demand all costs and
expenses of the Holders in connection with the preparation, execution and
delivery of this Agreement, including the reasonable fees, costs and expenses of
Stroock as counsel for the Holders with respect
thereto.
SECTION
9. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed signature page to this Agreement by facsimile transmission or otherwise
transmitted or communicated by e-mail shall be as effective as delivery of a
manually executed counterpart of this Agreement.
SECTION
10.
Integration. This Agreement and any agreements referred to herein
constitute the entire contract among the parties hereto relating to the subject
matter hereof and supersede any
and all previous agreements and understandings, oral or written, relating to the
subject matter hereof, and may not be modified or amended except by a written
instrument, signed by each of the parties hereto, expressing such amendment or
modification; provided,
however,
that this Agreement is not intended to in any way supersede or contradict the
terms of the confidentiality agreements dated February 17, 2009 between MPG and
each of Stroock & Stroock & Xxxxx LLP and FTI Consulting, Inc. Upon the
effectiveness of this Agreement as set forth in Section 3 hereof, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and,
subject to and in accordance with Section 13.10 of the Indenture, their
respective successors.
SECTION
11. Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this
Agreement.
SECTION 12.
Applicable Law. This Agreement shall be governed by and be construed and
enforced in accordance with, the laws of the State of New York (including
without limitation Section 5-1401 of the New York General Obligations
Law).
SECTION 13.
Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purposes.
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SECTION 14.
Confidentiality. Each of the Xxxxxx Companies and each Holder (and
their respective successors and assigns) shall not publicly disclose any
information provided to them in connection with this Agreement, nor shall they
publicly disclose Annex
A or Schedule
1 to this Agreement (collectively, the “Holder
Information”), except: (1) in any legal proceeding relating to this
Agreement, provided that the relevant Xxxxxx Company and/or Holder, as
applicable, shall use its best efforts to maintain the confidentiality of Holder
Information in the context of any such proceeding; (2) to the extent required by
applicable law, rules, regulations promulgated thereunder, or obligations,
including, without limitation, U.S. federal securities laws, as determined after
consultation with legal counsel; (3) in response to an oral question,
interrogatory, request for information or documents, subpoena, civil
investigative demand or other process, or a request from a government agency,
regulatory authority or securities exchange; (4) that MPG may summarize this
Agreement in connection with a Form 8-K filing (in lieu of filing this Agreement
as an exhibit thereto); (5) that MPG may include this Agreement as an exhibit to
the Company’s Form 10-Q for the first quarter of 2009; provided,
however,
that MPG shall not include Annex
A or Schedule
1 in any such filing and shall only disclose Annex
A or Schedule
1 if specifically required to do so by the Securities and Exchange
Commission (“SEC”)
after taking all reasonable steps to resist disclosure, including requesting
that each of Annex
A and Schedule
1 be accorded confidential treatment by the SEC; and (6) that the Xxxxxx
Companies may provide a copy of this Agreement (which copy shall not include
Annex
A or Schedule
1) to the Administrative Agent and the lenders under the Credit
Agreement, provided
that in the case of clauses (2), (3) or (5) above, the disclosing party provides
notice to the applicable Holder (promptly upon receipt of the subpoena or
request so that the Holder may seek an appropriate protective order or waive the
relevant Xxxxxx Company’s requirement for compliance with this Section 14),
unless such notice would be prohibited by law. The Xxxxxx Companies will not
oppose any reasonable action by the applicable Holder to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the Holder Information and the information contained therein. If the
applicable Holder chooses to oppose the production of such information, it does
so at its own expense. Responding to any such subpoena or other request, after
providing notice as set forth herein, shall not be deemed to be a breach of any
provision of this Agreement. Notwithstanding anything to the contrary in this
Section 14, the Xxxxxx Companies may: (i) disclose the aggregate principal
amount of Notes held by the Holders executing this Agreement, taken as a whole
and without reference to the names of the Holders constituting such amount; and
(ii) provide the Indenture Trustee with the executed copy of this Agreement that
includes the individual signature pages of each of the Holders, but only in the
event that the Xxxxxx Companies first obtain the Indenture Trustee’s written
consent not to publicly disclose any information relating to the individual
holdings of each Holder.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
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XXXXXX
PUBLISHING GROUP, LLC
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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XXXXXX
PUBLISHING FINANCE CO.
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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YANKTON
PRINTING COMPANY
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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BROADCASTER
PRESS, INC.
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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THE
SUN TIMES, LLC
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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XXXXX
NEWS, LLC
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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LOG
CABIN DEMOCRAT, LLC
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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ATHENS
NEWSPAPER, LLC
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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SOUTHEASTERN
NEWSPAPERS COMPANY, LLC
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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XXXXXXXX
COMMUNICATIONS, INC.
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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FLORIDA
PUBLISHING COMPANY
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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SOUTHWESTERN
NEWSPAPERS COMPANY, L.P.
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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THE
OAK RIDGER, LLC
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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MPG
ALLEGAN PROPERTY, LLC
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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MPG
HOLLAND PROPERTY, LLC
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By:
/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Senior Vice President of
Finance
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