WAIVER NO. 15
WAIVER
XX. 00
XXXXXX
XX. 00 dated as of September 18, 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” and, together with the Borrower, MCC, Holdings, Xxxxxxx 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 Xx. 0
xxxxxxx, Xxxxxxxxx Xx. 0 xxx Xxxxxx Xx. 0 thereto, Waiver No. 3 thereto,
Amendment No. 5 and Waiver No. 4 thereto, Waiver No. 5 thereto, Waiver No. 6
thereto, Waiver No. 7 thereto, Waiver No. 8 thereto, Amendment No. 6 and Waiver
No. 9 thereto, Waiver No. 10 thereto, Waiver No. 11 thereto, Waiver No. 12
thereto, Waiver No. 13 thereto and Waiver No. 14 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) extends,
until 5:00 p.m., New York City time, on September 25, 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 (the “February
1 Bond Interest Payment Default”);
(b) extends,
until 5:00 p.m., New York City time, on September 25, 2009, the waiver set
forth in Section 3(b) of Amendment No. 6 and Waiver No. 9 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 August 1, 2009 on the 2003 Senior Subordinated Notes
(the “August
1 Bond Interest Payment Default”);
(c) extends,
until 5:00 p.m., New York City time, on September 25, 2009, the waiver set
forth in Section 2(c) of Waiver No. 12 to the Credit Agreement of any Default
that consists solely of the Cash Flow Ratio exceeding the applicable amount
permitted under Section 6.06(a) of the Credit Agreement with respect to the
period of four fiscal quarters ending on June 30, 2009 (the “Cash
Flow Ratio Default”); and
(d) extends,
until 5:00 p.m., New York City time, on September 25, 2009, the waiver set
forth in Section 2(d) of Waiver No. 12 to the Credit Agreement of any Default
that consists solely of the Interest Coverage Ratio being less than the
applicable amount permitted under Section 6.06(c) of the Credit Agreement with
respect to the period of four fiscal quarters ending on June 30, 2009 (together
with the February 1 Bond Interest Payment Default, the August 1 Bond Interest
Payment Default and the Cash Flow Ratio Default, the “Specified
Defaults”);
provided
that such waivers 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 Amendment No. 12 to Forbearance Agreement referenced
below) without the consent of the Required Lenders;
(iii) the
occurrence or continuance of any Default other than a 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 any 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 waiver to the extent such Event of Default shall then be
continuing.
Section
3. 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 any Specified Default or
any 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) 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 (“Amendment
No. 12 to Forbearance Agreement”) to the Forbearance Agreement dated as
of February 26, 2009 among the Borrower, Xxxxxx 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 dated as of April 6, 2009,
Amendment No. 2 to Forbearance Agreement dated as of April 23, 2009, Amendment
No. 3 to Forbearance Agreement dated as of May 28, 2009, Amendment No. 4 to
Forbearance Agreement dated as of June 12, 2009, Amendment No. 5 to Forbearance
Agreement dated as of July 14, 2009, Amendment No. 6 to Forbearance Agreement
dated as of July 31, 2009, Amendment No. 7 to Forbearance Agreement dated as of
August 14, 2009, Amendment No. 8 to Forbearance Agreement dated as of August 21,
2009, Amendment No. 9 to the Forbearance Agreement dated as of August 28, 2009,
Amendment No. 10 to the Forbearance Agreement dated as of September 4, 2009,
Amendment No. 11 to the Forbearance Agreement dated as of September 11, 2009,
Amendment No. 12 to Forbearance Agreement and any subsequent amendment thereto
in form and substance satisfactory to the Required Lenders, the “Amended
Forbearance Agreement”).
(iii) No
Default. No Default or Event of Default (other than any
Specified Default or any 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
5. 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 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. Additional
Fee. Notwithstanding anything to the contrary contained in
Section 6 of Waiver No. 13 to the Credit Agreement, the Required Lenders hereby
agree that the “Waiver Fee” set forth in Section 6 of said Waiver No. 13 shall
be due and payable on the earliest to occur of:
(x) the
time at which the waivers extended pursuant to Section 2 hereof expire as
provided in said Section 2;
(y) if
but only if on or prior to 5:00 p.m., New York City time, on September 23,
2009 the Borrower and Xxxxxx Finance shall not have agreed in writing (which
written agreement may be subject to negotiation of and entering into definitive
documentation evidencing the same) with the holders (or the investment advisors
or managers thereof) of over 75% of the principal amount of the outstanding 2003
Senior Subordinated Notes to terms and conditions for a refinancing of the 2003
Senior Subordinated Notes, 5:00 p.m., New York City time, on September 23,
2009; and
(z)
5:00 p.m., New York City time, on September 25, 2009 (such earliest time,
the “Waiver
Fee Due Date”);
provided
that the Waiver Fee shall be deemed waived and shall not be payable if (a) on or
before the Waiver Fee Due Date, all principal of and interest on the Loans and
other amounts due and payable to the Lenders under the Loan Documents shall have
been paid in full and the Commitments shall have terminated, (b) on or before
the Waiver Fee Due Date, Tranche Holdings, LLC or its designee shall have
purchased the Loans and assumed the Commitments in full pursuant to a Master
Assignment and Assumption in form and substance satisfactory to the
Administrative Agent and the Lenders, or (c) prior to the payment of the Waiver
Fee, Consenting Lenders having Commitments representing at least a majority of
the Commitments of all Consenting Lenders shall so agree in
writing.
Section
7. 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.
Waiver
No. 15
NY3:#7468326v2
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
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X.
Xxxxxxxx
Title: Senior Vice
President of Finance
XXXXXX
COMMUNICATIONS COMPANY, LLC
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X.
Xxxxxxxx
Title: Senior Vice
President of Finance
XXXXXX
COMMUNICATIONS HOLDING COMPANY,
LLC
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X.
Xxxxxxxx
Title: Senior Vice
President of Finance
XXXXXXX
TRADING & OPERATING COMPANY
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X.
Xxxxxxxx
Title: Senior Vice
President of Finance
MPG
NEWSPAPER HOLDING, LLC
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X.
Xxxxxxxx
Title: Senior Vice
President of Finance
XXXXXX
PUBLISHING FINANCE CO.
YANKTON
PRINTING COMPANY
BROADCASTER
PRESS, INC.
THE
SUN TIMES, LLC
XXXXX
NEWS, LLC
LOG
CABIN DEMOCRAT, LLC
ATHENS
NEWSPAPERS, LLC
SOUTHEASTERN
NEWSPAPERS COMPANY, LLC
XXXXXXXX
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
XXXXXX
VISITOR PUBLICATIONS, LLC
XXXXXX
BOOK PUBLISHING, LLC
THE
XXXXX PRESS, INC.
XXXXXX
AIR, LLC
MCC
HARBOUR CONDO, LLC
MCC
CUTTER COURT, LLC
XXXXXX
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/
Xxxxx X. Xxxxxxxx
Name: Xxxxx X.
Xxxxxxxx
Title: Senior Vice
President of Finance
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JPMORGAN
CHASE BANK, N.A.,
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As
Administrative Agent
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By:
/s/ Xxxx X.
Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
Managing Director
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LENDERS:
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JPMORGAN
CHASE BANK, N.A.,
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Individually
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By:
/s/ Xxxx X.
Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
Managing Director
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THE
BANK OF NEW YORK MELLON,
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By:
/s/ Xxxxxx X.
XxXxxxxx
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Name:
Xxxxxx X. Xxxxxxxx
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Title:
Managing Director
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SUNTRUST
BANK
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By:
/s/ Xxxxxxxxx
Xxxx
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Name:
Xxxxxxxxx Xxxx
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Title:
First Vice President
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WACHOVIA
BANK, NATIONAL ASSOCIATION,
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By:
/s/ Xxxx
Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Director
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GENERAL
ELECTRIC CAPITAL CORP.
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By:
/s/ Xxxxxx Xxxxxxxx
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Name:
Xxxxxx Xxxxxxxx
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Title:
Duly Authorized Signatory
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US
BANK NATIONAL ASSOCIATION
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By: /s/ Xxxxxxxxx
Xxxxx
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Name:
Xxxxxxxxx Xxxxx
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Title:
Vice President
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XXXXXXX
BANK, NATIONAL ASSOCIATION,
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By:
/s/ Xxxx Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title:
Vice President
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KEYBANK
NATIONAL ASSOCIATION,
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By:
/s/ Xxxxx
Xxxxxx
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Name:
Xxxxx Xxxxxx
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Title:
Vice President
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BANK
OF AMERICA, N.A.
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By:
/s/ Xxxxxxx X Xxxx
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Name:
Xxxxxxx X Xxxx
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Title:
Senior Vice President
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COMERICA
BANK
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By:
/s/ Xxxxx X.
Xxxx
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Name:
Xxxxx X. Xxxx
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Title:
Vice President
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RBS
CITIZENS N.A.
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By:
/s/ Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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Title:
Bank
Officer
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