Exhibit 10.9 - Subsidiary Guaranty
Agreement
EXECUTION COPY
SUBSIDIARY GUARANTY
AGREEMENT
This SUBSIDIARY GUARANTY
AGREEMENT (this “ Subsidiary Guaranty Agreement
”), dated as of February 18, 2009, is made jointly and
severally by the Persons listed on the signature pages hereof as
Subsidiary Guarantors and each of the other Persons that from time
to time becomes an Additional Subsidiary Guarantor pursuant to the
terms of Section 11 hereof (each a “ Subsidiary
Guarantor ” and collectively the “ Subsidiary
Guarantors ”), in favor of each of the holders from time
to time of the Notes issued under the Note Agreement referred to
below (each a “ Beneficiary ”, and collectively,
the “ Beneficiaries ”). Capitalized terms used
but not defined herein shall have the meanings given to them in the
Note Agreement referred to below.
RECITALS
A. Reference is made to that certain Note
Agreement, dated as of May 1, 2000 (as amended, restated,
supplemented or otherwise modified, including pursuant to the Note
Amendment (as defined below), the “ Note Agreement
”), by and among St. Louis Post-Dispatch LLC, a Delaware
limited liability company (together with its successors and
assigns, the “ Company ”), and the
Beneficiaries, pursuant to which, subject to the terms and
conditions set forth therein, the Company issued and sold to such
Beneficiaries, and such Beneficiaries purchased from the Company,
the Notes (the Notes and the Note Agreement, collectively, the
“ Note Documents ”).
B. Reference is also made to that certain
Guaranty Agreement, dated as of May 1, 2000 (as amended,
restated, supplemented or otherwise modified, including pursuant to
the Guaranty Amendment (as defined below), the “ Guaranty
Agreement ”), by and among Pulitzer Inc., a Delaware
corporation (together with its successors and assigns, the “
Parent ”) and the Beneficiaries, pursuant to which,
subject to the terms and conditions set forth therein, the Parent
guaranteed the full, complete and final payment and performance of
the “Guaranteed Obligations” (as defined in the
Guaranty Agreement).
C. Concurrently herewith, the Company is
entering into a certain Limited Waiver and Amendment No. 5 to
Note Agreement, dated the date hereof (the “ Note
Amendment ”), with the Beneficiaries, pursuant to which
the Beneficiaries and the Company have, among other things, agreed
to amend certain provisions of the Note Agreement and make certain
financial accommodations to the Company as provided in such
amendment.
D. Concurrently herewith, the Parent is also
entering into a certain Limited Waiver and Amendment No. 5 to
Guaranty Agreement, dated the date hereof (the “ Guaranty
Amendment ”), with the Beneficiaries pursuant to which
the Beneficiaries and the Parent have, among other things, agreed
to amend certain provisions of the Guaranty Agreement and make
certain financial accommodations to or for the benefit of the
Parent as provided in such amendment.
E. The Beneficiaries are willing to enter
into the Note Amendment and the Guaranty Amendment and otherwise
make, extend and maintain certain financial accommodations to the
Company and the Parent as provided in such amendments, but only
upon the condition, among others, that the Subsidiary Guarantors
shall have executed and delivered this Subsidiary Guaranty
Agreement.
GUARANTY
NOW, THEREFORE
, in consideration of the foregoing
and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each Subsidiary
Guarantor hereby agrees as follows:
1. GUARANTY.
1.1 Guaranty. Each Subsidiary
Guarantor hereby irrevocably, absolutely and unconditionally
jointly and severally guarantees unto each Beneficiary (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, (iii) the
full and prompt payment, performance and observance by the Parent
of the “Guaranteed Obligations” (as defined in the
Guaranty Agreement) and all other obligations, covenants,
conditions and agreements of the Parent contained in the Guaranty
Agreement or any other instrument or agreement entered into in
connection therewith or otherwise relating thereto, and
(iv) the full and prompt payment, upon demand by any
Beneficiary, 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 Note Documents, the Guaranty 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 Subsidiary Guaranty Agreement
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),
(iii) and (iv) being hereinafter collectively referred to
as the “ Guaranteed Obligations ”).
1.2 Guaranty of Payment and
Performance. This is a guaranty of payment and performance and
not a guaranty of collection, and each Subsidiary Guarantor hereby
waives any right to require that any action on or in respect of any
Note Document, the Guaranty Agreement or any instrument or
agreement relating to the Guaranteed Obligations be brought against
the Company, the Parent, any other Subsidiary Guarantor or any
other Person or that resort be had to any direct or indirect
security for the Notes, for the Guaranty Agreement or for this
Subsidiary Guaranty Agreement or any other remedy. Any Beneficiary
may, at its option, proceed
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hereunder against any Subsidiary Guarantor in
the first instance to collect monies when due, the payment of which
is guaranteed hereby, without first proceeding against the Company,
the Parent, any other Subsidiary Guarantor or any other Person and
without first resorting to any direct or indirect security for the
Notes, for the Guaranty Agreement or for this Subsidiary Guaranty
Agreement or any other remedy. The liability of each Subsidiary
Guarantor hereunder shall in no way be affected or impaired by any
acceptance by any Beneficiary of any direct or indirect security
for, or other guaranties of, the Guaranteed Obligations or by any
failure, delay, neglect or omission by any Beneficiary 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 Beneficiary. Each
Subsidiary 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,
(ii) acknowledges that certain obligations of the Parent under
the Guaranty Agreement will survive the payment or transfer of any
Note and the termination of the Guaranty Agreement, and
(iii) agrees that the obligations of each Subsidiary 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 and the Guaranty Agreement.
1.3 General Provisions Relating
to the Subsidiary Guaranty Agreement.
(a) Each Subsidiary Guarantor hereby consents
and agrees that any Beneficiary, with or without any further notice
to or assent from any Subsidiary Guarantor, may, without in any
manner affecting the liability of any Subsidiary Guarantor under
this Subsidiary Guaranty Agreement, and upon such terms and
conditions as any Beneficiary may deem advisable:
(i) 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
Documents, the Guaranty Agreement or any other instrument or
agreement entered into in connection therewith or otherwise
relating thereto;
(ii) 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
Beneficiary as direct or indirect security for the payment or
performance of any of the Guaranteed Obligations; or
(iii) settle, adjust or compromise any claim of
the Company, the Parent or any other Subsidiary Guarantor against
any other Person secondarily or otherwise liable for any of the
Guaranteed Obligations.
Each Subsidiary 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 each Subsidiary
Guarantor shall at all times be bound by this Subsidiary Guaranty
Agreement and remain liable hereunder.
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(b) Each Subsidiary Guarantor hereby waives:
(i) notice of acceptance of this Subsidiary Guaranty Agreement
by the Beneficiaries or of the creation, renewal or accrual of any
liability of the Company, the Parent or any other Subsidiary
Guarantor, present or future, or of the reliance of such
Beneficiaries upon this Subsidiary Guaranty Agreement (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 Subsidiary Guaranty Agreement);
(ii) demand of payment by any Beneficiary from the Company,
the Parent, any other Subsidiary Guarantor or any other Person
indebted in any manner on or for any of the Guaranteed Obligations
hereby guaranteed; and (iii) presentment for the payment by
any Beneficiary 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 Subsidiary Guarantors. The obligations of each
Subsidiary Guarantor under this Subsidiary Guaranty Agreement and
the rights of each Beneficiary 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 any claim of any character
whatsoever or otherwise and shall not be subject to any defense,
setoff, counterclaim, recoupment or termination
whatsoever.
(c) The obligations of each Subsidiary
Guarantor hereunder shall be binding upon each Subsidiary Guarantor
and its successors and assigns, and shall remain in full force and
effect irrespective of:
(i) (A) the genuineness, validity, regularity
or enforceability of the Note Documents, the Guaranty Agreement,
this Subsidiary Guaranty Agreement or any other instrument or
agreement entered into in connection therewith or otherwise
relating thereto, or any of the terms of any thereof, (B) the
continuance of any obligation on the part of the Company, the
Parent, any other Subsidiary Guarantor or any other Person on the
Notes or under the Note Agreement, the Guaranty Agreement, this
Subsidiary Guaranty Agreement or any such other instrument or
agreement, (C) the power or authority or the lack of power or
authority of (x) the Company to execute and deliver the Note
Documents or any such other instrument or agreement, or to perform
any of its obligations thereunder , (y) the Parent to execute
and deliver the Guaranty Agreement or any such other instrument or
agreement, or to perform any of its obligations thereunder, or
(z) any other Subsidiary Guarantor to execute and deliver this
Subsidiary Guaranty Agreement or any such other instrument or
agreement, or to perform any of its obligations thereunder, or
(D) the existence or continuance of the Company, the Parent,
any other Subsidiary Guarantor or any other Person as a legal
entity;
(ii) any default, failure or delay, willful or
otherwise, in the performance by the Company, the Parent, any other
Subsidiary Guarantor or any other Person of any obligations of any
kind or character whatsoever of the Company, the Parent, any other
Subsidiary Guarantor or any other Person (including, without
limitation, the Guaranteed Obligations);
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(iii) any creditors’ rights, bankruptcy,
receivership or other insolvency proceeding of the Company, the
Parent, any other Subsidiary Guarantor or any other Person or in
respect of the property of the Company, the Parent, any other
Subsidiary Guarantor 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, the Parent, any other Subsidiary Guarantor or any other
Person;
(iv) impossibility or illegality of performance
on the part of the Company, the Parent, any other Subsidiary
Guarantor or any other Person of its obligations under the Note
Documents, the Guaranty Agreement, this Subsidiary Guaranty
Agreement or any other instrument or agreement entered into in
connection therewith or otherwise relating thereto;
(v) in respect of the Company, the Parent, any
other Subsidiary Guarantor or any other Person, any change of
circumstances, whether or not foreseen or foreseeable, whether or
not imputable to the Company, the Parent, any other Subsidiary
Guarantor 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, the
Parent, any other Subsidiary Guarantor or any other Person and
whether or not of the kind hereinbefore specified;
(vi) 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 Subsidiary Guaranty
Agreement, so that such sums would be rendered inadequate or would
be unavailable to make the payments herein provided;
(vii) 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;
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(viii) 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 any Subsidiary Guarantor
of failure of the Company, the Parent, any other Subsidiary
Guarantor or any other Person to keep and perform any of the
Guaranteed Obligations, or failure to resort for payment to the
Company, the Parent, any other Subsidiary Guarantor or to any other
Person or to any other guaranty or to any property, security, Liens
or other rights or remedies;
(ix) the acceptance of any additional security
or other guaranty, the advance of additional money to the Company,
the Parent, any other Subsidiary Guarantor or any other Person, the
renewal or extension of the Notes or amendments, modifications,
consents or waivers with respect to the Note Documents, the
Guaranty 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;
(x) any defense whatsoever that the Company,
the Parent, any other Subsidiary Guarantor 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
sati
