AMENDMENT NO. 5 AND WAIVER NO. 4
AMENDMENT
NO. 5 AND WAIVER ▇▇. ▇
▇▇▇▇▇▇▇▇▇
▇▇. ▇ AND WAIVER NO. 4 dated as of April 6, 2009 (this “Agreement”) between
▇▇▇▇▇▇ PUBLISHING GROUP, LLC (the “Borrower”), ▇▇▇▇▇▇
COMMUNICATIONS COMPANY, LLC (“MCC”), ▇▇▇▇▇▇
COMMUNICATIONS HOLDING COMPANY, LLC (“Holdings”), ▇▇▇▇▇▇▇
TRADING & OPERATING COMPANY (“▇▇▇▇▇▇▇”), MPG
NEWSPAPER HOLDING, LLC (“MPG Holdings”), the
SUBSIDIARY GUARANTORS party hereto (the “Subsidiary
Guarantors” and, together with the Borrower, MCC, Holdings, ▇▇▇▇▇▇▇ and
MPG Holdings, the “Obligors”), the
Lenders executing this Agreement on the signature pages hereto and JPMORGAN
CHASE BANK, N.A., as administrative agent for the lenders party to the Credit
Agreement referenced below (in such capacity, together with its successors in
such capacity, the “Administrative
Agent”).
The
Borrower, MCC, the lenders party thereto and the Administrative Agent are
parties to a Credit Agreement dated as of December 14, 2005 (as amended by
Amendment No. 1 thereto, Amendment No. 2 and Waiver thereto, Amendment No. 3
thereto, Amendment No. 4 and Waiver No. 2 thereto and Waiver No. 3 thereto and
as otherwise modified and supplemented and in effect immediately prior to the
effectiveness of this Agreement, the “Credit
Agreement”). The parties hereto wish now to amend the Credit
Agreement in certain respects, and the Lenders executing this Agreement on the
signature pages hereto wish now to waive a certain Default under the Credit
Agreement, subject to the terms and provisions of this Agreement, and,
accordingly, the parties hereto hereby agree as follows:
Section
1. Definitions. Except
as otherwise defined in this Agreement, terms defined in the Credit Agreement
are used herein as defined therein.
Section
2. Amendment. Subject
to the satisfaction of the conditions precedent specified in Section 5
hereof, but effective as of the date hereof, the Credit Agreement shall be
amended as follows:
2.01. References
Generally. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to “this Agreement” (and
indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) shall
be deemed to be references to the Credit Agreement as amended
hereby. This Agreement is a Loan Document for all purposes of the
Credit Agreement and the other Loan Documents.
2.02. Mandatory
Transaction. Section 6.01(d) of the Credit Agreement is hereby
amended to read in its entirety as follows:
“(d)
[Intentionally Deleted].
Section
3. Waiver. Subject
to the satisfaction of the conditions precedent specified in Section 5
hereof, but effective as of the date hereof, the Administrative Agent, on behalf
of the Lenders, hereby extends, until 5:00 p.m., New York City time, on
April 24, 2009, the waiver set forth in Section 3(a) of Amendment No. 4 and
Waiver No. 2 to the Credit Agreement of any Default under clause (b) of Article
VII of the Credit Agreement that consists solely of the Borrower or ▇▇▇▇▇▇
Finance defaulting in the payment when due of interest due on February 1, 2009
on the 2003 Senior Subordinated Notes (the “Specified Default”);
provided that
such waiver shall expire upon:
(i) the
termination or expiry of the Amended Forbearance Agreement referenced below or
the occurrence of any “Forbearance Termination Event” thereunder (as such term
is defined therein);
(ii) any
amendment, waiver, supplementation or modification of the Amended Forbearance
Agreement (other than the Amendment to Forbearance Agreement referenced below)
without the consent of the Required Lenders;
(iii) the
occurrence of any Default other than the Specified Default;
(iv) the
failure of any representation or warranty made in this Agreement to be true and
correct as of the date when made; or
(v) the
failure by any Obligor to comply with any term, condition, covenant or agreement
contained in this Agreement.
Upon the
expiry of the foregoing waiver as provided above, the Administrative Agent and
each Lender shall be entitled to exercise any and all rights and remedies under
the Loan Documents in respect of any Event of Default covered by such waiver to
the extent such Event of Default shall then be continuing.
Section
4. Representations and
Warranties. Each of the Obligors represents and warrants to
the Lenders and the Administrative Agent, as to itself and each of its
subsidiaries, that (i) the representations and warranties set forth in
Article III of the Credit Agreement and in the other Loan Documents are
true and complete as if made on and as of the date hereof (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, such representation or warranty shall be true and correct as of
such specific date) and (ii) immediately before and after giving effect to this
Agreement, no Default or Event of Default (other than the Specified Default or
an Event of Default arising therefrom) has occurred and is
continuing.
Section
5. Conditions
Precedent. The amendment set forth in Section 2 hereof and the
waiver set forth in Section 3 hereof shall become effective as of the date
hereof upon the satisfaction of the following conditions:
(i) Execution. The
Administrative Agent shall have received executed counterparts of this Agreement
from the Obligors and the Required Lenders.
(ii) Amendment to Forbearance
Agreement. The Administrative Agent shall have received, in
form and substance satisfactory to it, a duly executed and binding amendment
(the “Amendment to
Forbearance Agreement”) to the Forbearance Agreement dated as of February
26, 2009 among the Borrower, ▇▇▇▇▇▇ Finance, the guarantors parties thereto and
holders, or investment advisors or managers of holders, of over 75% of the
principal amount of the outstanding 2003 Senior Subordinated Notes (as amended
by the Amendment to Forbearance Agreement, the “Amended Forbearance
Agreement”).
(iii) No
Default. No Default or Event of Default (other than the
Specified Default or an Event of Default arising therefrom) shall have occurred
and be continuing on the date hereof.
(iv) Expenses. The
Borrower shall have paid in full the costs, expenses and fees as set forth in
Section 9.03 of the Credit Agreement (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent).
Section
6. Information. The
Obligors shall provide to the Administrative Agent and the Lenders any and all
financial and legal information regarding the Obligors and their Affiliates that
is provided to the holders of the 2003 Senior Subordinated Notes.
Section
7. Security
Documents. Each of the Obligors (a) confirms its obligations
under the Security Documents, as applicable, (b) confirms that the obligations
of the Borrower and MCC under the Credit Agreement as amended hereby are
entitled to the benefits of the pledges and guarantees, as applicable, set forth
in the Security Documents, (c) confirms that the obligations of the Borrower and
MCC under the Credit Agreement as amended hereby constitute “Guaranteed
Obligations”, “Secured Obligations” and “Obligations” (as such terms are defined
in the Security Documents, as applicable) and (d) confirms that the Credit
Agreement as amended hereby is the “Credit Agreement” under and for all purposes
of the Security Documents.
Section
8. Miscellaneous. This
Agreement shall be limited as written and nothing herein shall be deemed to
constitute a waiver of any other term, provision or condition of the Credit
Agreement or any other Loan Document in any other instance than as set forth
herein or prejudice any right or remedy that the Administrative Agent or any
Lender may have or may in the future have under the Credit Agreement or any
other Loan Document. Except as herein provided, each of the Credit
Agreement and the other Loan Documents shall remain unchanged and in full force
and effect. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument, and any of the parties hereto may execute this Agreement
by signing any such counterpart. Delivery of an executed counterpart
of a signature page to this Agreement by electronic transmission shall be
effective as delivery of a manually executed counterpart of this
Agreement. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
|
▇▇▇▇▇▇
PUBLISHING GROUP, LLC
|
|
|
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Title:
Senior Vice President of
Finance
|
|
|
▇▇▇▇▇▇
COMMUNICATIONS COMPANY, LLC
|
|
|
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Title:
Senior Vice President of
Finance
|
|
|
▇▇▇▇▇▇
COMMUNICATIONS HOLDING COMPANY,
LLC
|
|
|
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Title:
Senior Vice President of
Finance
|
|
|
▇▇▇▇▇▇▇
TRADING & OPERATING COMPANY
|
|
|
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Title:
Senior Vice President of
Finance
|
|
|
MPG
NEWSPAPER HOLDING, LLC
|
|
|
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Title:
Senior Vice President of
Finance
|
|
|
▇▇▇▇▇▇
PUBLISHING FINANCE CO.
|
|
YANKTON
PRINTING COMPANY
|
|
BROADCASTER
PRESS, INC.
|
|
THE
SUN TIMES, LLC
|
|
▇▇▇▇▇
NEWS, LLC
|
|
LOG
CABIN DEMOCRAT, LLC
|
|
ATHENS
NEWSPAPERS, LLC
|
|
SOUTHEASTERN
NEWSPAPERS COMPANY, LLC
|
|
▇▇▇▇▇▇▇▇
COMMUNICATIONS, INC.
|
|
FLORIDA
PUBLISHING COMPANY
|
|
THE
OAK RIDGER, LLC
|
|
MPG
ALLEGAN PROPERTY, LLC
|
|
MPG
HOLLAND PROPERTY, LLC
|
|
MCC
RADIO, LLC
|
|
MCC
OUTDOOR, LLC
|
|
MCC
MAGAZINES, LLC
|
|
MCC
EVENTS, LLC
|
|
HIPPODROME,
LLC
|
|
BEST
READ GUIDES FRANCHISE COMPANY, LLC
|
|
▇▇▇▇▇▇
VISITOR PUBLICATIONS, LLC
|
|
BEST
READ GUIDES OF NEVADA, LLC
|
|
▇▇▇▇▇▇
BOOK PUBLISHING, LLC
|
|
THE
▇▇▇▇▇ PRESS, INC.
|
|
▇▇▇▇▇▇
AIR, LLC
|
|
MCC
HARBOUR CONDO, LLC
|
|
MCC
CUTTER COURT, LLC
|
|
▇▇▇▇▇▇
DIGITAL WORKS, LLC
|
|
MSTAR
SOLUTIONS, LLC
|
|
MVP
FRANCE, LLC
|
|
MVP
GLOBAL, LLC
|
|
SOUTHWESTERN
NEWSPAPERS COMPANY, L.P.
|
|
MCC
OUTDOOR HOLDING, LLC
|
|
THE
MAP GROUP, INC.
|
|
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Title:
Senior Vice President of Finance
|
|
LENDERS:
|
JPMORGAN
CHASE BANK, N.A.,
|
|
|
Individually
and as Administrative Agent
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
THE
BANK OF NEW YORK MELLON,
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
SUNTRUST
BANK
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
WACHOVIA
BANK, NATIONAL ASSOCIATION,
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
BANK
OF AMERICA
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
GENERAL
ELECTRIC CAPITAL CORP.
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
US
BANK, N.A.,
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
▇▇▇▇▇▇▇
BANK, NATIONAL ASSOCIATION,
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
KEYBANK
NATIONAL ASSOCIATION,
|
|
|
By:
/s/
|
|
|
Name
|
|
|
Title:
|
|
|
SUMITOMO
MITSUI BANKING CORPORATION,
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
COMERICA
BANK
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
FIRST
TENNESSEE BANK, NATIONAL ASSOCIATION
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|
|
MIZUHO
|
|
|
By:
/s/
|
|
|
Name:
|
|
|
Title:
|
|