WAIVER NO. 3
EXECUTION
COPY
WAIVER
NO. 3
WAIVER
NO. 3 dated as of February 26, 2009 (this “Agreement”)
between XXXXXX PUBLISHING GROUP, LLC (the “Borrower”),
XXXXXX COMMUNICATIONS COMPANY, LLC (“MCC”),
XXXXXX COMMUNICATIONS HOLDING COMPANY, LLC (“Holdings”),
XXXXXXX TRADING & OPERATING COMPANY (“Xxxxxxx”),
MPG NEWSPAPER HOLDING, LLC (“MPG
Holdings”), the SUBSIDIARY GUARANTORS party hereto (the “Subsidiary
Guarantors”), 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 and Amendment No. 4 and Waiver No. 2 thereto and as otherwise modified
and supplemented and in effect immediately prior to the effectiveness of this
Agreement, the “Credit
Agreement”). 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. Waiver. Subject
to the satisfaction of the conditions precedent specified in Section 4
hereof, but effective as of the date hereof, the Administrative Agent, on behalf
of the Lenders, hereby:
(a)
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extends,
until 5:00 p.m., New York City time, on April 6, 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 Xxxxxx Finance
defaulting in the payment when due of interest due on February 1, 2009 on
the 2003 Senior Subordinated Notes;
and
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(b)
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waives,
until 5:00 p.m., New York City time, on April 6, 2009, any Default
under clause (d) of Article VII of the Credit Agreement that consists
solely of the Borrower, MCC or any Subsidiary Guarantor defaulting in the
performance of its obligation under Section 7 of Amendment No. 4 and
Waiver No. 2 to the Credit Agreement to enter into such control agreements
as required thereunder on or prior to March 2, 2009; provided
that such waivers shall expire upon (i) the termination or expiry of the
Bondholder Forbearance Agreement referenced below or the occurrence of any
“Forbearance Termination Event” thereunder (as such term is defined
therein) or (ii) the occurrence of any Default other than (x) any Default
described above or (y) any Default under clause (d) of Article VII of the
Credit Agreement that consists solely of the Borrower or any Guarantor
defaulting in the performance of its obligation under Section 6.01(f) of
the Security and Guarantee Agreement to cause to be filed such
continuation statements as may be necessary to maintain the perfection of
the security interest granted pursuant to the Security and Guarantee
Agreement (collectively, the “Specified
Defaults”). Upon the expiry of the foregoing waivers 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 waivers to the extent such
Event of Default shall then be
continuing.
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W3-1-
Section
3. Representations
and Warranties. Each
of the Borrower, MCC, Holdings, Xxxxxxx, MPG Holdings and the Subsidiary
Guarantors 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 a
Specified Default or an Event of Default arising therefrom) has occurred and is
continuing.
Section
4. Conditions
Precedent.
The waivers set forth in Section 2 hereof shall become effective as of the
date hereof upon the satisfaction of the following
conditions:
(i)
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Execution.
The Administrative Agent shall have received executed counterparts of this
Agreement from the Borrower, MCC, Holdings, Xxxxxxx, MPG Holdings, each
Subsidiary Guarantor and the Required
Lenders.
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(ii)
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Bondholder
Forbearance Agreement. The Administrative Agent shall have
received, in form and substance satisfactory to it, a duly executed and
binding agreement by the holders of over 75% of the principal amount of
the outstanding 2003 Senior Subordinated Notes, or the Trustee under the
Indenture pursuant to which the 2003 Senior Subordinated Notes
were issued (the “Indenture”)
on behalf of such holders, to forbear in the exercise of their rights and
remedies under the Indenture in respect of an “Event of Default” (as such
term is defined in the Indenture) that consists of the Borrower or Xxxxxx
Finance defaulting in the payment when due of interest due on February 1,
2009 on the 2003 Senior Subordinated Notes and such default continuing for
a period of thirty days (the “Forbearance
Agreement”).
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(iii)
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No
Default. No Default or Event of Default (other than a Specified
Default or an Event of Default arising therefrom) shall have occurred and
be continuing on the date
hereof.
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(iv)
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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).
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Section
5. Security
Documents.
Each of the Borrower, MCC, Holdings, Xxxxxxx, MPG Holdings and the Subsidiary
Guarantors (a) confirms its obligations under the Security Documents, as
applicable, (b) confirms that the obligations of the Borrower and MCC under the
Credit Agreement 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 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 is the “Credit Agreement” under and for all purposes of the
Security Documents.
Section
6. 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.
W3-2-
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.
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
COMMUNICATIONS 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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XXXXXX
COMMUNICATIONS HOLDING 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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XXXXXXX
TRADING & OPERATING 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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MPG
NEWSPAPER HOLDING, 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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W3-3-
XXXXXX
PUBLISHING FINANCE CO.
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YANKTON
PRINTING COMPANY
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BROADCASTER
PRESS, INC.
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THE
SUN TIMES, LLC
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XXXXX
NEWS, LLC
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LOG
CABIN DEMOCRAT, LLC
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ATHENS
NEWSPAPERS, LLC
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SOUTHEASTERN
NEWSPAPERS COMPANY, LLC
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XXXXXXXX
COMMUNICATIONS, INC.
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FLORIDA
PUBLISHING COMPANY
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THE
OAK RIDGER, LLC
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MPG
ALLEGAN PROPERTY, LLC
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MPG
HOLLAND PROPERTY, LLC
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MCC
RADIO, LLC
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MCC
OUTDOOR, LLC
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MCC
MAGAZINES, LLC
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MCC
EVENTS, LLC
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HIPPODROME,
LLC
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BEST
READ GUIDES FRANCHISE COMPANY, LLC
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XXXXXX
VISITOR PUBLICATIONS, LLC
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BEST
READ GUIDES OF NEVADA, LLC
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XXXXXX
BOOK PUBLISHING, LLC
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THE
XXXXX PRESS, INC.
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XXXXXX
AIR, LLC
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MCC
HARBOUR CONDO, LLC
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MCC
CUTTER COURT, LLC
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XXXXXX
DIGITAL WORKS, LLC
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MSTAR
SOLUTIONS, LLC
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MVP
FRANCE, LLC
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MVP
GLOBAL, LLC
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SOUTHWESTERN
NEWSPAPERS COMPANY, L.P.
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MCC
OUTDOOR HOLDING, LLC
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THE
MAP GROUP, 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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W3-4-
LENDERS:
JPMORGAN
CHASE BANK, N.A.,
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Individually
and as Administrative Agent
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By:
/s/
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Name:
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Title:
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THE
BANK OF NEW YORK MELLON,
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By:
/s/
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Name:
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Title:
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SUNTRUST
BANK
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By:
/s/
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Name:
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Title:
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WACHOVIA
BANK, NATIONAL ASSOCIATION,
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By:
/s/
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Name:
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Title:
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BANK
OF AMERICA
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By:
/s/
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Name:
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Title:
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W3-5-
GENERAL
ELECTRIC CAPITAL CORP.
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By:
/s/
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Name:
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Title:
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US
BANK, N.A.,
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By:
/s/
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Name:
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Title:
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XXXXXXX
BANK, NATIONAL ASSOCIATION,
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By:
/s/
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Name:
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Title:
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KEYBANK
NATIONAL ASSOCIATION,
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By:
/s/
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Name
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Title:
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SUMITOMO
MITSUI BANKING CORPORATION,
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By:
/s/
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Name:
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Title:
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COMERICA
BANK
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By:
/s/
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Name:
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Title:
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W3-6-
FIRST
TENNESSEE BANK, NATIONAL ASSOCIATION
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By:
/s/
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Name:
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Title:
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MIZUHO
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By:
/s/
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Name:
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Title:
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W3-7-