AMENDMENT NO. 4 AND WAIVER NO. 2

 

EXECUTION COPY

AMENDMENT NO. 4 AND WAIVER NO. 2

AMENDMENT NO. 4 AND WAIVER NO. 2 dated as of January 27, 2009 (this “ Agreement ”) between MORRIS PUBLISHING GROUP, LLC  (the “ Borrower ”), MORRIS COMMUNICATIONS COMPANY, LLC (“ MCC ”), MORRIS COMMUNICATIONS HOLDING COMPANY, LLC (“ Holdings ”), SHIVERS TRADING & OPERATING COMPANY (“ Shivers ”), 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, and Amendment 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 and the Security and Guarantee Agreement (as defined in the Credit Agreement and, together with the Credit Agreement, the “ Transaction Documents ”) in certain respects, and, accordingly, the parties hereto hereby agree as follows:

 

 

 

 

 

Section 5. Security Documents . Each of the Borrower, MCC, Holdings, Shivers, 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 Transaction Documents 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 Transaction Documents as amended hereby constitute “Guaranteed Obligations”, “Secured Obligations” and “Obligations” (as such terms are defined in the Security Documents, as applicable), (d) confirms that the Transaction Documents as amended hereby are respectively the Credit Agreement and the Security and Guaranty Agreement under and for all purposes of the Security Documents and (e) confirms that the pledge and security interest previously created by MCC in favor of the Administrative Agent for the benefit of the holders of the “Secured Obligations” (as defined in the Security and Guarantee Agreement) pursuant to the Security and Guarantee Agreement in the “Pledged Equity” (as defined in the Security and Guarantee Agreement) issued by the Borrower and MCC Outdoor, LLC and any and all other “Collateral” (as defined in the Security and Guarantee Agreement) that is being transferred pursuant to the Permitted Reorganization shall continue in all such “Pledged Equity” and “Collateral” (each as so defined) notwithstanding the consummation of the Permitted Reorganization.

 

Section 6. Financial Advisors .  Each of the Borrower, MCC, Holdings, Shivers, MPG Holdings and the Subsidiary Guarantors hereby agrees that it will cooperate in good faith with any financial advisors to the Administrative Agent or any Lender, including without limitation in connection with any workout, restructuring or negotiations in respect of the Loans made under the Credit Agreement.

 

Section 7. Account Control Agreements . Each of the Borrower, MCC and the Subsidiary Guarantors hereby agrees to enter into such control agreements, each in form and substance acceptable to the Administrative Agent, as may be required to perfect the security interest created by the Security and Guarantee Agreement in any and all “Deposit Accounts” (as defined in the Security and Guarantee Agreement), excluding “Deposit Accounts” (as so defined) having cash balances in an aggregate amount of less than $500,000, and to furnish to the Administrative Agent true copies of such control agreements, on or prior to March 2, 2009.

 

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 any Transaction Document 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 Transaction Documents 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.

 

 

MORRIS PUBLISHING GROUP, LLC
By: /s/ Craig S. Mitchell
	Name: Craig S. Mitchell
	Title: Senior Vice President of Finance

 

 

MORRIS COMMUNICATIONS COMPANY, LLC
By: /s/ Craig S. Mitchell
	Name: Craig S. Mitchell
	Title: Senior Vice President of Finance

 

 

MORRIS COMMUNICATIONS HOLDING COMPANY, LLC
By: /s/ Craig S. Mitchell
	Name: Craig S. Mitchell
	Title: Senior Vice President of Finance

 

SHIVERS TRADING & OPERATING COMPANY
By: /s/ Craig S. Mitchell
	Name: Craig S. Mitchell
	Title: Senior Vice President of Finance

 

MORRIS PUBLISHING FINANCE CO.

YANKTON PRINTING COMPANY

BROADCASTER PRESS, INC.

THE SUN TIMES, LLC

HOMER NEWS, LLC

LOG CABIN DEMOCRAT, LLC

ATHENS NEWSPAPERS, LLC

SOUTHEASTERN NEWSPAPERS COMPANY, LLC

STAUFFER 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

MORRIS VISITOR PUBLICATIONS, LLC

BEST READ GUIDES OF NEVADA, LLC

MORRIS BOOK PUBLISHING, LLC

THE LYONS PRESS, INC.

MORRIS AIR, LLC

MCC HARBOUR CONDO, LLC

MCC CUTTER COURT, LLC

MORRIS 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/ Craig S. Mitchell
	Name: Craig S. Mitchell
	Title: Senior Vice President of Finance

 

 

LENDERS:

 

JPMORGAN CHASE BANK, N.A.,
Individually and as Administrative Agent
By: /s/ Peter B. Thauer
	Name: Peter B. Thauer
	Title: Executive Director

 

 

THE BANK OF NEW YORK MELLON,
By: /s/ Thomas J. Tarasovich, Jr.
	Name: Thomas J. Tarasovich, Jr.
	Title: Vice President

 

 

SUNTRUST BANK
By: /s/ E. Matthew Schaff, IV
	Name: E. Matthew Schaaf, IV
	Title: Vice President

 

 

WACHOVIA BANK, NATIONAL ASSOCIATION,
By: /s/ Russ Lyons
	Name: Russ Lyons
	Title: Director

 

 

BANK OF AMERICA
By: /s/
	Name:
	Title:

 

 

GENERAL ELECTRIC CAPITAL CORP.
By: /s/
	Name:
	Title:

 

 

US BANK, N.A.,
By: /s/ Alan McLintock
	Name: Alan McLintock
	Title: Vice President

 

 

LENDERS-continued:

 

WEBSTER BANK, NATIONAL ASSOCIATION,
By: /s/ John Gilsenan
	Name: John Gilsenan
	Title: Vice President

 

 

KEYBANK NATIONAL ASSOCIATION,
By: /s/ Jennifer A. O'Brien
	Name: Jennifer A. O'Brien
	Title: Vice President

 

 

SUMITOMO MITSUI BANKING CORPORATION,
By: /s/ Leo E. Pagarigan
	Name: Leo E. Pagarigan
	Title: General Manager

 

 

COMERICA BANK
By: /s/
	Name:
	Title:

 

 

FIRST TENNESSEE BANK, NATIONAL ASSOCIATION
By: /s/
	Name:
	Title:

 

 

MIZUHO
By: /s/
	Name:
	Title:

 

Composite Copy (Including Amendment No. 1 dated July 3, 2007, Amendment No. 2 dated as of November 28, 2007 and Amendment No. 3 dated as of September 30, 2008)

EXECUTION COPY

ANNEX A

CREDIT AGREEMENT

dated as of

December 14, 2005

between

MORRIS COMMUNICATIONS COMPANY, LLC

MORRIS PUBLISHING GROUP, LLC

The LENDERS Party Hereto

J.P. MORGAN SECURITIES INC.,

as Sole Lead Arranger and Sole Bookrunner

THE BANK OF NEW YORK.

KEYBANK NATIONAL ASSOCIATION,

SUNTRUST BANK and

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents

and

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

___________

$350,000,000

___________

$153,250,000

___________

 

 

TABLE OF CONTENTS

Annex Page#

ARTICLE I

DEFINITIONS

ARTICLE II

THE CREDITS

ARTICLE III

REPRESENTATIONS AND WARRANTIES

ARTICLE IV

CONDITIONS

 

 

ARTICLE V

AFFIRMATIVE COVENANTS

 

ARTICLE VI

NEGATIVE COVENANTS

 

 

ARTICLE VII

EVENTS OF DEFAULT

ARTICLE VIII

THE ADMINISTRATIVE AGENT

ARTICLE IX

MISCELLANEOUS

 

 

 

CREDIT AGREEMENT dated as of December 14, 2005, between MORRIS COMMUNICATIONS COMPANY, LLC, MORRIS PUBLISHING GROUP, LLC, the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.

Morris Communications Company, LLC, (“ MCC ”), Morris Publishing Group, LLC (the “ Borrower ”), the lenders named therein and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as the Administrative Agent, are parties to an Amended and Restated Credit Agreement dated as of July 16, 2004 (the “ Existing Credit Agreement ”).

The Borrower has requested that the Lenders make loans to it in an aggregate principal amount not exceeding $350,000,000 (which amount may, in the circumstances hereinafter provided, be increased to $700,000,000) at any one time outstanding, and MCC has agreed to guarantee such loans.  The Lenders are prepared to make such loans upon the terms and conditions hereof, and, accordingly, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01. Defined Terms

 

As used in this Agreement, the following terms have the meanings specified below:

 

“ ABR ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

“ Acceptable Lease Terms ” means, with respect to any lease agreement covering real property sold by MCC, the Borrower or any Restricted Subsidiary of their respective Subsidiaries pursuant to Section 6.01(c)(vii ), or distributed by the Borrower pursuant to Section 6.05(f ), that such lease agreement (a) shall expire not prior to the date eight years after the Effective Date (or, if earlier, the remaining useful life of the real property) and shall be renewable at the option of the lessee for an additional term of not less than five years after such initial expiration date, (b) requires that the lease agreement shall be recorded prior to the grant by the respective lessor of any Lien upon such real property, and that any such Lien shall be subject to the provisions of such lease agreement, and that such Lien shall be subject to such lease agreement, (c) the rental payments to be made under such lease agreement by MCC , the Borrower or the respective Restricted Subsidiary of MCC or the Borrower shall be not less favorable than would be applicable to a lease agreement entered into on market terms with an unaffiliated third party and shall consist of equal consecutive monthly or quarterly payments (excluding rental payments during any renewal of such lease agreement, so long as such renewal rental payments are not in any event greater than market terms determined at the time the renewal becomes effective), provided that such payments may from time to time be increased in accordance with increases in the Consumer Price Index published by the Bureau of Labor Statistics in the Department of Labor, (d) shall not contain any terms that would impose unusual burdens upon the ability of the respective lessee to use the leased property and (e) shall not contain terms that render such lease a Guarantee of obligations of the lessor.

 

 

“ Acquisition Subsidiary ” means (i) any entity that is acquired pursuant to an acquisition permitted under Section 6.01(c)(iv), or pursuant to an Investment permitted under Section 6.04(e), that becomes a Restricted Subsidiary after such acquisition or Investment and (ii) any Restricted Subsidiary formed by MCC after the date hereof for the purpose of making any such acquisition or Investment.  An “Acquisition Subsidiary” may include a Restricted Subsidiary described in the foregoing clause (ii) as well as the entity acquired by such Restricted Subsidiary described in the foregoing clause (i).

“ Adjusted LIBO Rate ” means, for the Interest Period for any Eurodollar Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate for such Interest Period.

“ Administrative Agent ” means JPMCB, in its capacity as administrative agent for the Lenders hereunder.

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“ Affiliate ” means any , with respect to a specified Person, any other Person that directly or indirectly controls, or is under common control with, or is controlled by, the Borrower such specified Person and, if such other Person is an individual, any member of the immediate family (including parents, spouse, children and siblings) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is controlled by any such member or trust.  As used in this definition, “ control ” (including, with its correlative meanings, “ controlled by ” and “ under common control with ”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise), provided that, in any event, any Person that owns directly or indirectly securities having 20% or more of the voting power for the election of directors or other governing body of a corporation or 20% or more of the partnership or other ownership interests of any other Person (other than as a limited partner of such other Person) will be deemed to control such corporation or other Person.  Notwithstanding the foregoing, (a) no individual (other than William S. Morris III) shall be an Affiliate solely by reason of his or her being a director, officer or employee of MCC , the Borrower or any of its Restricted their respective Subsidiaries and (b) no sibling of William S. Morris III shall be an Affiliate solely by reason of his or her being such a sibling.

“ Alternate Base Rate ” means, for any day, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate for such day plus 1/2 of 1%.  Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.

“ Amendment No. 3 Effective Date ” means the date of Amendment No. 3 hereto.

 

 

“Amendment No. 4 Effective Date” means the date of Amendment No. 4 and Waiver No. 2 hereto.

 

“ Applicable Percentage ” means, with respect to any Lender, the percentage of the total Commitments or Loans of all Classes hereunder represented by the aggregate amount of such Lender’s Commitments or Loans of all Classes hereunder.

“ Applicable Rate ” means, for any day, with respect to the commitment fees payable hereunder, or with respect to any Type of Revolving Credit Loan or Tranche A Term Loan, the rate per annum set forth below under the caption “ABR” or “Eurodollar” for the applicable Class, or “Commitment Fee”, respectively, based upon the Cash Flow Ratio as of the most recent determination date:

provided that, for any day on or after March 31, 2009, the Amendment No. 4 Effective Date, each rate per annum set forth above under the captions “ABR” and “Eurodollar” shall be increased by 0.500%.  For purposes of the foregoing, (i) the Cash Flow Ratio shall be determined as of the end of each fiscal quarter of MCC’s fiscal year based upon MCC’s the consolidated financial statements of MCC, the Borrower and their respective Subsidiaries delivered pursuant to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a change in the Cash Flow Ratio shall be effective during the period commencing on and including the date three Business Days after delivery to the Administrative Agent of such consolidated financial statements indicating such change and ending on the date immediately preceding the effective date of the next such change; provided that the Cash Flow Ratio shall be deemed to be in the highest category indicated above (A) at any time that an Event of Default has occurred and is continuing and (B) if MCC or the Borrower fails to deliver the consolidated financial statements required to be delivered by it pursuant to Section 5.01(a) or (b), during the period from the expiration of the time for delivery thereof until such consolidated financial statements are delivered.

 

 

The Applicable Rate for Revolving Credit Loans, Tranche A Term Loans and Commitment Fees, until the delivery of MCC’s the consolidated financial statements of MCC, the Borrower and their respective Subsidiaries delivered pursuant to Section 5.01(a) or (b) for the fiscal quarter ending September 30, 2006, shall not be lower than the rates set forth above for a Cash Flow Ratio of less than 5.50 to 1 but greater than or equal to 5.00 to 1.

“ Approved Fund ” shall mean, with respect to any Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“ Asset Cash Flow ” means, on any date during any fiscal year, with respect to any assets or equity interests being sold as contemplated in Section 6.01(c)(vi), the sum (determined on a consolidated basis, if applicable, without duplication in accordance with GAAP), of the following, in each case to the extent attributable to such assets or equity interests: (a) net operating income (calculated before federal, state and local income taxes, Interest Expense, extraordinary and unusual items, income or loss attributable to equity in Affiliates of the Borrower and Other Income) for the period of four fiscal quarters ending on or most recently ended prior to said date plus (b) non-cash items, including, without limitation, depreciation and amortization (to the extent deducted in determining net operating income) for such period.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

 

“ Borrower ” means Morris Publishing Group, LLC, a Georgia limited liability company.

“Borrower Change in Control” means:

(a)  (i) Questo shall cease to own at least 65% of the equity interests of Shivers (or shall cease to own at least 65% of the aggregate voting power of Shivers), (ii) MPG Holdings shall cease to be a direct Wholly Owned Subsidiary of Shivers, (iii) the Borrower shall cease to be a direct Wholly Owned Subsidiary of MPG Holdings or (iv) MPG Holdings shall grant any Lien on the ownership interests held by it in the Borrower (other than any Lien pursuant to the MPG Holdings Pledge Agreement); or

 

 

(b)  An aggregate of at least 51% of the issued and outstanding shares of stock (of each class) of Questo shall cease to be owned, collectively, by (i) William S. Morris III, his spouse, his children or his grandchildren, (ii) a trust for the benefit of William S. Morris III, his spouse, his children or his grandchildren, which trust is under the control of William S. Morris III, his spouse, his children or his grandchildren or (iii) a partnership, corporation or limited liability company which is controlled by (and the equity interests in which are owned by) William S. Morris III, his spouse or his children or his grandchildren or their spouses or by a trust referred to in the foregoing clause.

“ Borrowing ” means (a) all ABR Loans of the same Class made, converted or continued on the same date or (b) all Eurodollar Loans of the same Class that have the same Interest Period.

“ Borrowing Request ” means a request by the Borrower for a Borrowing in accordance with Section 2.03.

“ Business Day ” means any day (a) that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed and (b) if such day relates to a borrowing of, a payment or prepayment of principal of or interest on, a continuation or conversion of or into, or the Interest Period for, a Eurodollar Borrowing, or to a notice by the Borrower with respect to any such borrowing, payment, prepayment, continuation, conversion, or Interest Period, that is also a day on which dealings in Dollar deposits are carried out in the London interbank market.

“ Capital Expenditure Contributions ” means (a) any equity contribution (whether constituting a contribution to the capital of MCC by Holdings or the purchase of additional equity interests in MCC by Holdings) received in cash and designated at the time the same is made by a senior financial officer of MCC as a “Capital Expenditure Contribution” for purposes of this Agreement or (b) any dividend to MCC from any Unrestricted Subsidiary that is equity contribution (whether constituting a contribution to the capital of the Borrower by MPG Holdings or the purchase of additional equity interests in the Borrower by MPG Holdings) received in cash and designated at the time the same is made by a senior financial officer of MCC as a “Capital Expenditure Contribution” for purposes of this Agreement , which designations shall be set forth in a notice to such effect delivered by MCC to the Administrative Agent .

“ Capital Expenditures ” means, for any period, expenditures (including, without limitation, the aggregate amount of Capital Lease Obligations incurred during such period, but excluding interest capitalized during such period in respect of Indebtedness incurred to finance the acquisition or construction of fixed assets, plant and equipment) made by MCC , the Borrower or any of its Restricted their respective Subsidiaries to acquire or construct fixed assets, plant and equipment (including renewals, improvements and replacements) during such period computed in accordance with GAAP.  Notwithstanding the foregoing, the following shall be excluded from Capital Expenditures (a) any acquisition permitted under Section 6.01(c)(iv), (b) any Investment permitted under Section 6.04(e), (c) the cost of any repair or replacement of any Property that is the subject of a Casualty Event, (d) any reinvestment of the Net Proceeds of a Disposition pursuant to Section 2.08(b)(i), and (e) any acquisition of any Property permitted

 

 

hereunder that is leased by MCC , the Borrower or any of its Restricted their respective Subsidiaries as of the Effective Date.

“ Capital Lease Obligations ” means, for any Person, all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) Property to the extent such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP (including Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board), and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP (including such Statement No. 13).

“ Cash and Cash Equivalents ” means, as at any date of determination thereof for MCC , the Borrower and its Restricted their respective Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP as if the Borrower and its Subsidiaries were Subsidiaries of MCC ), the aggregate amount of all cash (including, without limitation, balances held in operating deposit accounts) and all Liquid Investments held by MCC and its Restricted , the Borrower and their their respective Subsidiaries on such date.

“ Cash Flow ” means, for any period, the sum, for MCC , the Borrower and its Restricted their respective Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP as if the Borrower and its Subsidiaries were Subsidiaries of MCC ), of the following:  (a) net operating income for such period, calculated before federal, state and local income taxes, Interest Expense, extraordinary and unusual items (other than any one-time charges related to start-up expenses for the shared services center and business and technology platform), income or loss attributable to equity in Affiliates of MCC and the Borrower and Other Income, it being understood that the first $1,000,000 of Other Rental Income for any period shall be included in “net operating income”, plus (b) non-cash items for such period, including, without limitation, depreciation and amortization, impairment charges with respect to goodwill and other intangibles, unrealized gains or losses on financial instruments (such as contemplated by FAS 133), non-cash financing losses on the extinguishment of debt and the non-cash portion of post-retirement benefits (to the extent deducted in determining net operating income), plus (c) non-recurring cash severance charges for such period not exceeding $5,000,000 in the aggregate during the period commencing on July 1, 2008 through the term of this Agreement.  MCC , the Borrower and its Restricted their respective Subsidiaries shall be permitted to add back for any period ending on or prior to December 31, 2006, up to $2,500,000 of hurricane related expenses and losses (including lost revenue).  In determining “net operating income” for any period, there shall be excluded from expenses the aggregate amount of Special Deferred Compensation for such period.

Notwithstanding the foregoing, in determining Cash Flow as at any date with respect to any period, appropriate adjustments shall be made to take into account the effect of any acquisition or Disposition during such period (or thereafter through such date) involving aggregate consideration in excess of $1,000,000, as if such acquisition or Disposition had occurred on the first day of such period.

 

 

“ Cash Flow Ratio ” means, as at any date of determination thereof, the ratio of (i) Total Indebtedness as at such date to (ii) Cash Flow for the period of four fiscal quarters ending on or most recently ended prior to such date.

 

“ Casualty Event ” means, with respect to any property of any Person, any loss of or damage to, or any condemnation or other taking of, such property for which such Person or any of its Subsidiaries receives insurance proceeds, or proceeds of a condemnation award or other compensation.

 

“ Change in Law ” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.12(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

“ Class ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are Revolving Credit Loans, Tranche A Term Loans or Incremental Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment, Tranche A Term Loan Commitment or Incremental Term Loan Commitment.

 

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.

“ Commitment ” means a Revolving Credit Commitment, Tranche A Term Loan Commitment or Incremental Term Loan Commitment, or any combination thereof (as the context requires).

“ Default ” means an Event of Default or an event that with notice or lapse of time or both would become an Event of Default.

“ Disposition ” means any sale, assignment, transfer or other disposition of any Property (whether now owned or hereafter acquired) by MCC , the Borrower or any of its Restricted their respective Subsidiaries to any Person, including any Casualty Event, but excluding any sale, assignment, transfer or other disposition of (a) any Property sold or disposed of in the ordinary course of business and on ordinary business terms and (b) any Property in an aggregate amount of less than $1,000,000.

“ Dollars ” or “ $ ” refers to lawful money of the United States of America.

“ Effective Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

“ Environmental Claim ” means, with respect to any Person, (a) any written or oral notice, claim, demand or other communication (collectively, a “ claim ”) by any other Person

 

 

alleging or asserting such Person’s liability for investigatory costs, cleanup costs, governmental response costs, damages to natural resources or other Property, personal injuries, fines or penalties arising out of, based on or resulting from (i) the presence, or Release into the environment, of any Hazardous Material at any location, whether or not owned by such Person, or (ii) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law.  The term “Environmental Claim” shall include, without limitation, any claim by any governmental authority for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, any claim by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from the presence of Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment, and any Lien filed against any property covered by any Mortgage.

“ Environmental Laws ” means any and all present and future Federal, state, local and foreign laws, rules or regulations, and any orders or decrees, in each case as now or hereafter in effect, relating to the regulation or protection of human health, safety or the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals or toxic or hazardous substances or wastes into the indoor or outdoor environment, including, without limitation, ambient air, soil, surface water, ground water, wetlands, land or subsurface strata, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, chemicals or toxic or hazardous substances or wastes.

“ Equity Contributions ” means (a) any equity contribution (whether constituting a contribution to the capital of MCC by Holdings or the purchase of additional equity interests in MCC by Holdings) received in cash and designated at the time the same is made by a senior financial officer of MCC as an “Equity Contribution” for purposes of this Agreement, which designation shall be set forth in a notice to such effect delivered by MCC to the Administrative Agent, or (b) any equity contribution (whether constituting a contribution to the capital of the Borrower by MPG Holdings or the purchase of additional equity interests in MCC by MPG Holdings) received in cash and designated at the time the same is made by a senior financial officer of MCC as an “Equity Contribution” for purposes of this Agreement, which designation shall be set forth in a notice to such effect delivered by MCC to the Administrative Agent.

“ Equity Issuance ” means (a) any issuance or sale by MCC , the Borrower or any of its Restricted their respective Subsidiaries after the Effective Date of (i) any of its capital stock, (ii) any warrants or options exercisable in respect of its capital stock (other than any warrants or options issued to directors, officers or employees of MCC , the Borrower or any of its their respective Subsidiaries pursuant to employee benefit plans established in the ordinary course of business and any capital stock of MCC issued upon the exercise of such warrants or options) or (iii) any other security or instrument representing an equity interest (or the right to obtain any equity interest) in MCC , the Borrower or any of its their respective Subsidiaries or (b) the receipt by MCC , the Borrower or any of its Restricted their respective Subsidiaries after the Effective Date of any capital contribution (whether or not evidenced by any equity security issued by the recipient of such contribution); provided that Equity Issuance shall

 

 

not include (w) any reimbursement of the costs of any Special Deferred Compensation described in clause (a) of the definition of such term in this Section, (x) the first $50,000,000 of Equity Contributions received after the date hereof , or (y) the first $100,000,000 of Capital Expenditure Contributions received after the date hereof or (z) any contribution made to the capital of MCC in order to enable the payments to be made pursuant to Section 6.05(h) or any contribution made to the capital of MCC pursuant to Section 5(b) of the Pledge Agreement .

“ Equity Rights ” means, with respect to any Person, any outstanding subscriptions, options, warrants, commitments, preemptive rights or agreements of any kind (including, without limitation, any stockholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or outstanding securities convertible into, any additional shares of capital stock of any class, or partnership or other ownership interests of any type in, such Person.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with MCC or the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ ERISA Event ” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by MCC , the Borrower or any of its their respective ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by MCC , the Borrower or any of their respective ERISA Affiliate Affiliates from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by MCC , the Borrower or any of its their respective ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by MCC , the Borrower or any of their respective ERISA Affiliate Affiliates of any notice, or the receipt by any Multiemployer Plan from MCC , the Borrower or any of their respective ERISA Affiliate Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

“ Eurodollar ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

“ Event of Default ” has the meaning assigned to such term in Article VII.

 

 

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.16(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 2.14(e), except to the extent that such Foreign Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.14(a).

“ Existing Credit Agreement ” has the meaning assigned to such term in the preamble to this Agreement.

“ Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“ Fiscal Quarter ” means each fiscal quarter of MCC and the Borrower, respectively.  The “first” Fiscal Quarter in any fiscal year shall be the Fiscal Quarter ending on or nearest to March 31 in such year, the “second” Fiscal Quarter in any fiscal year shall be the Fiscal Quarter ending on or nearest to June 30 in such year, the “third” Fiscal Quarter in any fiscal year shall be the Fiscal Quarter ending on or nearest to September 30 in such year, and the “fourth” Fiscal Quarter in any fiscal year shall be the Fiscal Quarter ending on or nearest to December 31 in such year, in each case as provided in Section 1.04(d).

“ Fixed Charge Coverage Ratio ” means, as at any date of determination, the ratio of (a) Cash Flow for the period of four fiscal quarters ending on or most recently ended prior to such date to (b) the sum (without duplication) of (i) the amount, if any, by which the aggregate principal amount of Revolving Credit Loans outstanding hereunder at the beginning of such period shall exceed the aggregate amount of the Revolving Credit Commitments scheduled to be in effect at the end of such period after giving effect to any reductions of such Commitments scheduled to occur during such period pursuant to Section 2.06 plus (ii) all regularly scheduled payments or regularly scheduled mandatory prepayments of principal of any other Indebtedness made during such period (including the Term Loans and the principal component of any payments in respect of Capital Lease Obligations, but excluding (u) the final installment of principal of the Term Loans, (v) any prepayments pursuant to Section 2.08, (w) any Indebtedness of the type described in clause (c) or (f) of the definition of such term in this Section 1.01, except to the extent MCC ,

 

 

the Borrower and its Restricted their respective Subsidiaries have made payments in respect of the principal thereof during such period, (x) the final installment of principal of any Indebtedness permitted hereunder that is secured by the aircraft assets of MCC , the Borrower and its their respective Subsidiaries or Swingline Indebtedness, (y) any payments on Intercompany Indebtedness and (z) for any such period of four fiscal quarters ending on December 31, 2008 or March 31, 2009, any payments of principal made by the Borrower pursuant to Section 2.07(a)(ii)) plus (iii) all Interest Expense for such period plus (iv) income taxes for such period (excluding, however, taxes attributable to (1) the Proposed Disposition (as defined in the Amendment No. 2 and Waiver hereto) to the extent proceeds with respect to such Proposed Disposition are not included in Cash Flow, (2) Unrestricted Subsidiaries to the extent paid by such Unrestricted Subsidiaries, (3) any Disposition to the extent proceeds with respect to such Disposition are not included in Cash Flow and ( 4 3 ) Indebtedness repurchased) plus (v) Restricted Payments made in cash during such period plus (vi) Capital Expenditures for such period, excluding (x) Capital Expenditures funded by Capital Expenditure Contributions made during the twelve month period ending on or most recently ended prior to such date (as contemplated by the definition of such term in this Section 1.01) and (y) Capital Expenditures related to start-up expenses for the shared services center and business and technology platform, provided that (i) the aggregate amount of such charges and expenses that may be so excluded shall not exceed $7,500,000 for any period ending on or before December 31, 2006 and (ii) no such charges and expenses may be excluded for any period ending after December 31, 2006.

“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is located.  For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“ GAAP ” means generally accepted accounting principles applied on a basis consistent with those which, in accordance with the last sentence of Section 1.04(a), are to be used in making the calculations for purposes of determining compliance with this Agreement.

“ Governmental Authority ” means the government of the United States of America, or of any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“ Guarantee ” means a guarantee, an endorsement, a contingent agreement to purchase or to furnish funds for the payment or maintenance of, or otherwise to be or become contingently liable under or with respect to, the Indebtedness, other obligations, net worth, working capital or earnings of any Person, or a guarantee of the payment of dividends or other distributions upon the stock or equity interests of any Person, or an agreement to purchase, sell or lease (as lessee or lessor) Property, products, materials, supplies or services primarily for the purpose of enabling a debtor to make payment of such debtor’s obligations or an agreement to assure a creditor against loss, and including, without limitation, causing a bank or other financial institution to issue a letter of credit or other similar instrument for the benefit of another Person, but excluding

 

 

endorsements for collection or deposit in the ordinary course of business. The terms “ Guarantee ” and “ Guaranteed ” used as a verb shall have a correlative meaning.

“ Guarantors ” means MCC and each Subsidiary Guarantor.

“ Hazardous Material ” means, collectively, (a) any petroleum or petroleum products, flammable explosives, radioactive materials, friable asbestos, urea formaldehyde foam insulation, and transformers or other equipment that contain dielectric fluid containing polychlorinated biphenyls (PCB’s), (b) any chemicals or other materials or substances which are now or hereafter become defined as or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”, “extremely hazardous wastes”, “restricted hazardous wastes”, “toxic substances”, “toxic pollutants”, “contaminants”, “pollutants” or words of similar import under any Environmental Law and (c) any other chemical or other material or substance, exposure to which is now or hereafter prohibited, limited or regulated under any Environmental Law.

“ Holdings ” means Morris Communications Holding Company, LLC, a Georgia limited liability company.

 

“ Incremental Term ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are made pursuant to Section 2.01(c).

 

“ Incremental Term Loan Commitment ” means, with respect to each Incremental Term Loan Lender, and for any Series thereof, the commitment of such Incremental Term Loan Lender to make Incremental Term Loans of such Series, as such commitment may be (a) reduced from time to time pursuant to Section 2.06 or 2.08(b) and (b) reduced or increased from time to time pursuant to assignments by or to such Incremental Term Loan Lender pursuant to Section 9.04.  The aggregate amount of the Incremental Loan Commitments of all Series incurred after the Effective Date plus the aggregate amount of increases in Revolving Credit Commitments effected pursuant to Section 2.06(e) plus the aggregate amount of Indebtedness incurred pursuant to Section 5(b) of the Pledge Agreement after the Effective Date, shall not exceed $350,000,000 or such higher amount to which the Required Lenders shall have consented.

 

“ Incremental Term Loan Lender ” means a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan of any Series.

 

“ Indebtedness ” means, for any Person:  (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of Property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such Property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of Property or services, other than (i) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business and (ii) without limiting the foregoing, trade accounts payable with respect to the purchase card line of credit established by JPMCB in favor of MCC; (c) Indebtedness of others secured by a Lien on the Property of such Person, whether or not the respective indebtedness so secured has been assumed by such Person, excluding, if such Person is the lessee of Property (whether pursuant to an operating lease or capital lease), Liens on such Property securing

 

 

Indebtedness of the lessor; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such Person; (e) Capital Lease Obligations of such Person; and (f) Indebtedness of others Guaranteed by such Person to the extent of the amount of such Indebtedness that such Person has agreed to Guarantee.

“ Indemnified Taxes ” means Taxes other than Excluded Taxes.

“ Information Memorandum ” means the Confidential Information Memorandum dated November 2005 prepared by MCC and the Borrower with respect to the transactions contemplated hereby.

“ Intercompany Indebtedness ” means Indebtedness of any Loan Party owing to MCC , the Borrower or any Restricted Subsidiary of MCC or the Borrower .

“ Interest Coverage Ratio ” means, as at any date of determination thereof, the ratio of (a) Cash Flow for the period of four fiscal quarters ending on or most recently ended prior to such date to (b) Interest Expense for such period.

“ Interest Election Request ” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.05.

“ Interest Expense ” means, for any period, the sum, for Holdings (but not any Subsidiaries thereof) and MCC , the Borrower and its Restricted their respective Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP as if the Borrower and its Subsidiaries were Subsidiaries of MCC ), of the following:  (a) all interest in respect of Indebtedness accrued or capitalized during such period (whether or not actually paid during such period, but excluding fees, commissions, purchase price payments or other costs in respect of any Interest Rate Protection Agreement and excluding also any Indebtedness of the type described in clause (c) or (f) of the definition of such term in this Section 1.01, except to the extent MCC , the Borrower and its Restricted their respective Subsidiaries have made payments in respect of interest thereof during such period) plus (b) the net amounts payable (or minus the net amounts receivable) under Interest Rate Protection Agreements accrued during such period (whether or not actually paid or received during such period) plus (c) the aggregate amount of fees or commissions paid in respect of letters of credit (other than commercial letters of credit) during such period.  Notwithstanding the foregoing, “Interest Expense” shall exclude any amount paid or amortized during any period in respect of up-front fees arising in connection with the incurrence of Indebtedness.

Interest Expense as at any date for any period will be adjusted on a pro   forma basis to take into account the effect of any acquisition or Disposition during such period (or after such period through such date) involving aggregate consideration in excess of $1,000,000, as if such acquisition or Disposition (and any related incurrence or prepayment of Indebtedness) had occurred on the first day of such period.

“ Interest Payment Date ” means (a) with respect to any ABR Loan, each Quarterly Date and (b) with respect to any Eurodollar Loan, the last day of each Interest Period therefor and, in the case

 

 

of any Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at three-month intervals after the first day of such Interest Period.

“ Interest Period ” means, for any Eurodollar Loan or Borrowing, the period commencing on the date of such Loan or Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as specified in the applicable Borrowing Request or Interest Election Request; provided , that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Loan initially shall be the date on which such Loan is made and thereafter shall be the effective date of the most recent conversion or continuation of such Loan, and the date of a Borrowing comprising Loans that have been converted or continued shall be the effective date of the most recent conversion or continuation of such Loans.

“ Interest Rate Protection Agreement ” means, for any Person, an interest rate swap, cap or collar agreement or similar arrangement between such Person and one or more financial institutions providing for the transfer or mitigation of interest risks either generally or under specific contingencies.

“ Investment ” means, for any Person:  (a) the acquisition (whether for cash, Property, services or securities or otherwise) of capital stock, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person or any agreement to make any such acquisition (including, without limitation, any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such short sale); (b) the making of any deposit with, or advance, loan or other extension of credit to, any other Person (including the purchase of Property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such Property to such Person, but excluding any such advance, loan or extension of credit having a term not exceeding 180 days representing the purchase price of inventory or supplies sold by such Person in the ordinary course of business); (c) the entering into of any Guarantee of, or other contingent obligation with respect to, Indebtedness or other liability of any other Person and (without duplication) any amount committed to be advanced, loaned or extended to such Person; or (d) the entering into of any Interest Rate Protection Agreement.

 

“ JPMCB ” means JPMorgan Chase Bank, N.A.

“ June 30, 2009 Financial Statements Delivery Date ” means the earlier of (x) August 29, 2009 and (y) the date of delivery of MCC’s the consolidated financial statements of MCC, the Borrower and their respective Subsidiaries for the fiscal quarter ending on June 30, 2009 pursuant to Section 5.01(a).

 

 

“ Lenders ” means, collectively, (a) the Revolving Credit Lenders and Tranche A Term Loan Lenders listed on Schedule I, (b) the Incremental Term Loan Lenders (if any) and (c) any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

“ LIBO Rate ” means, for the Interest Period for any Eurodollar Borrowing, the rate appearing on Reuters Page 3750 of the Telerate Service LIBOR01 (or on any successor or substitute page of such Service service , or any successor to or substitute for such Service service , providing rate quotations comparable to those currently provided on such page of such Service service , as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for the offering of Dollar deposits with a maturity comparable to such Interest Period.  In the event that such rate is not available at such time for any reason, then the LIBO Rate for such Interest Period shall be the rate at which Dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

“ Lien ” means, with respect to any Property, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such Property.  For purposes of this Agreement and the other Loan Documents, a Person shall be deemed to own subject to a Lien any Property that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement (other than an operating lease) relating to such Property.

“ Liquid Investments ” means:  (a) direct obligations of the United States of America, or of any agency thereof, or obligations guaranteed as to principal and interest by the United States of America, or of any agency thereof, in either case maturing not more than 180 days from the date of acquisition thereof; (b) certificates of deposit issued by any Lender, or by any bank or trust Borrower organized under the laws of the United States of America or any state thereof and having capital, surplus and undivided profits of at least $500,000,000, in each case maturing not more than 180 days from the date of acquisition thereof; (c) certificates of deposit issued by any Eligible Foreign Bank maturing not more than 180 days from the date of acquisition thereof (for purposes hereof, “ Eligible Foreign Bank ” means any bank organized under the laws of any member of the Organization for Economic Cooperation and Development, the long-term debt securities of which are rated A or better by Standard & Poor’s Ratings Group, a Division of McGraw Hill, Inc. or A2 or better by Moody’s Investors Service, Inc.); (d) certificates of deposit issued by any bank (other than a bank described in clause (b) or (c) above) not to exceed $1,000,000 in the aggregate at any time outstanding; and (e) commercial paper rated A-1 or better or P-1 by Standard & Poor’s Ratings Group, a Division of McGraw Hill, Inc. or Moody’s Investors Service, Inc., respectively, maturing not more than 90 days from the date of acquisition thereof.

 

 

“ Loan Documents ” means, collectively, this Agreement and , the Security Documents , Amendment No. 1 hereto, Amendment No. 2 and Waiver hereto, Amendment No. 3 hereto and Amendment No. 4 and Waiver No. 2 hereto .

 

“ Loan Parties ” means, collectively, the Borrower and the Guarantors.

“ Loans ” means the loans made by the Lenders to the Borrower pursuant to this Agreement.

“ March 31, 2009 Financial Statements Delivery Date ” means the earlier of (x) May 30, 2009 and (y) the date of delivery of MCC’s the consolidated financial statements of MCC, the Borrower and their respective Subsidiaries for the fiscal quarter ending on March 31, 2009 pursuant to Section 5.01(a).

“ Margin Stock ” means “margin stock” within the meaning of Regulations T, U and X.

“ Material Adverse Effect ” means a material adverse effect on (a) the consolidated financial condition, operations, business or prospects of MCC , the Borrower and its Restricted their respective Subsidiaries or the Newspaper Entities taken as a whole, (b) the ability of any Obligor to perform its obligations under any of the Basic Documents to which it is a party, (c) the validity or enforceability of any of the Basic Documents, (d) the rights and remedies of the Lenders and the Administrative Agent under any of the Basic Documents or (e) the timely payment of the principal of or interest on the Loans or other amounts payable in connection therewith.

“ MCC ” means Morris Communications Company, LLC, a Georgia limited liability company.

 

“MCC Change in Control” means:

(a)  (i) Pesto shall cease to own at least 65% of the equity interests of Questo (or shall cease to own at least 65% of the aggregate voting power of Holdings), (ii) Pesto directly (or Questo indirectly) shall cease to own at least 65% of the equity interests of Holdings (or shall cease to own at least 65% of the aggregate voting power of Holdings), (iii) MCC shall cease to be a direct Wholly Owned Subsidiary of Holdings or (iv) Holdings shall grant any Lien on the ownership interests held by it in MCC (other than any Lien pursuant to the Pledge Agreement); or

 

(b)  An aggregate of at least 51% of the issued and outstanding shares of stock (of each class) of Questo shall cease to be owned, collectively, by (i) William S. Morris III, his spouse, his children or his grandchildren, (ii) a trust for the benefit of William S. Morris III, his spouse, his children or his grandchildren, which trust is under the control of William S. Morris III, his spouse, his children or his grandchildren or (iii) a partnership, corporation or limited liability company which is controlled by (and the equity interests in which are owned by) William S. Morris III, his spouse or his children or his grandchildren or their spouses or by a trust referred to in the foregoing clause.

 

 

“ Mediacom ” means Mediacom Communications Corporation, a Delaware corporation.

“ Morris Finance ” means Morris Publishing Finance Co., a Georgia corporation.

“ Mortgages ” means, collectively, one or more instruments of Mortgage, Deeds of Trust, Assignment of Rents, Security Agreement and Fixture Filing executed by an Obligor in favor of the Administrative Agent and the Lenders (or in favor of a trustee for the benefit of the Administrative Agent and the Lenders) and covering the properties and leasehold interests identified in Schedule VI that are to be subject to the Lien of a Mortgage and any other mortgage, deed of trust, deed to secure debt or any other agreement evidencing a real property security interest in favor of the Lenders delivered in connection with the Loan Documents.

“MPG Holdings” means MPG Newspaper Holding, LLC, a Georgia limited liability company.

“MPG Holdings Pledge Agreement” means that certain Pledge Agreement dated as of the Amendment No. 4 Effective Date between MPG Holdings, Shivers and the Administrative Agent.

“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“ Net Proceeds ” means, with respect to any Disposition or Equity Issuance, the aggregate amount of all cash payments received by MCC , the Borrower and its Restricted their respective Subsidiaries directly or indirectly in connection with such Disposition or Equity Issuance; provided that (i) such Net Proceeds shall be net of (x) the amount of any legal, title and recording tax expenses, commissions and other fees and expenses paid by MCC , the Borrower and its Restricted their respective Subsidiaries in connection with such Disposition or Equity Issuance and (y) any Federal, state and local income or other taxes estimated to be payable by MCC , the Borrower and its Restricted their respective Subsidiaries as a result of such Disposition or Equity Issuance (but only to the extent that such estimated taxes are in fact paid to Shivers pursuant to the Tax Consolidation Agreements when due pursuant to the provisions thereof) and (ii) such Net Proceeds shall be net of any repayments by MCC , the Borrower or any of its Restricted their respective Subsidiaries of Indebtedness to the extent that (x) such Indebtedness is secured by a Lien on the Property that is the subject of such Disposition or Equity Issuance and (y) such Indebtedness is in fact repaid upon the consummation of the purchase of such Property.

 

“ Newspaper Entities ” means, collectively, the Borrower and its Subsidiaries.

 

“ Obligors ” means, collectively, the Borrower, the Guarantors , Holdings, Shivers and MPG Holdings.

 

“ Operating Agreement ” means the Operating Agreement dated October 26, 2001 for MCC, as modified and supplemented and in effect from time to time.

 

 

“ Other Income ” means, for any period, collectively, (i) Other Investment Income for such period and (ii) to the extent exceeding $1,000,000, Other Rental Income for such period.

 

“ Other Investment Income ” means, for any period, the sum for MCC , the Borrower and its Restricted their respective Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP as if the Borrower and its Subsidiaries were Subsidiaries of MCC ), of the aggregate amount of cash dividends and cash interest received by MCC , the Borrower and its Restricted their respective Subsidiaries during such period in respect of Investments in preferred and common stock and notes and other debt securities (including, without limitation, Cash and Cash Equivalents) held by MCC , the Borrower and its Restricted their respective Subsidiaries.

 

“ Other Rental Income ” means, for any period, the sum for MCC , the Borrower and its Restricted their respective Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP as if the Borrower and its Subsidiaries were Subsidiaries of MCC ), of all income received by MCC , the Borrower and its Restricted their respective Subsidiaries during such period in respect of the leasing or subleasing of real property owned or leased by MCC , the Borrower or any of its Restricted their respective Subsidiaries.

“ Other Taxes ” means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.

 

“ Participant ” has the meaning assigned to such term in Section 9.04(e).

 

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“Permitted Reorganization” means the reorganization described on Schedule VIII (with such immaterial modifications as the Administrative Agent shall have approved).

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

“Pesto” means Pesto, Inc., a Georgia corporation.

“ Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“ Pledge Agreement ” means a Pledge Agreement substantially in the form of Exhibit C between Holdings and the Administrative Agent.

 

 

“ Prime Rate ” means the rate of interest per annum publicly announced from time to time by JPMCB as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

“ Principal Payment Dates ” means the Quarterly Dates falling on or nearest to March 31, June 30, September 30 and December 31 of each year, commencing with March 31, 2005, through and including the applicable Term Loan Maturity Date.

“ Property ” means any right or interest in or to property of any kind whatsoever and whether tangible or intangible.

“ Quarterly Dates ” means the last Business Day of March, June, September and December in each year, the first of which shall be the first such day after the date hereof.

“Questo” means Questo, Inc., a Georgia corporation.

“ Register ” has the meaning set forth in Section 9.04.

“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

“ Release ” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment, including, without limitation, the movement of Hazardous Materials through ambient air, soil, surface water, ground water, wetlands, land or subsurface strata.

“ Required Lenders ” means, at any time, Lenders having Loans and unused Commitments representing at least a majority of the sum of the total Loans and unused Commitments at such time.  References herein to the Required Lenders of any Class shall refer to the Lenders of such Class holding at least a majority of the sum of the total Loans and unused Commitments of such Class at such time.

 

“ Restricted Payment ” means, collectively, (a) all distributions of MCC , the Borrower and its Restricted their respective Subsidiaries (in cash, Property or obligations) on, or other payments or distributions on account of, or the setting apart of money for a sinking or other analogous fund for, or the purchase, redemption, retirement or other acquisition of, any portion of any ownership interest in MCC , the Borrower or any of its their respective Subsidiaries or of any warrants, options or other rights to acquire any such ownership interest (or to make any payments to any Person, such as “phantom stock” payments, where the amount thereof is calculated with reference to fair market or equity value of MCC , the Borrower or any of its their respective Subsidiaries) and (b) any payments made by MCC or the Borrower to any holders of any equity interests in MCC or the Borrower that are designed to reimburse such holders for the payment of any Taxes attributable to the operations of MCC , the Borrower and its their respective Subsidiaries.

 

 

“ Restricted Subsidiary ” means any Subsidiary of MCC other than an Unrestricted Subsidiary or the Borrower .

“ Revolving Credit ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are made pursuant to Section 2.01(a).

“ Revolving Credit Availability Period ” means the period from and including the  Effective Date to but excluding the earlier of the Revolving Credit Commitment Termination Date and the date of termination of the Revolving Credit Commitments.

“ Revolving Credit Commitment ” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Credit Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.06 or 2.08(b) and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Revolving Credit Commitment is set forth on Schedule I, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Revolving Credit Commitment, as applicable.  The initial aggregate amount of the Lenders’ Revolving Credit Commitments is $175,000,000.

“ Revolving Credit Commitment Termination Date ” means the Quarterly Date falling on or nearest to September 30, 2012.

“ Revolving Credit Exposure ” means, with respect to any Lender at any time, the aggregate outstanding principal amount of such Lender’s Revolving Credit Loans at such time.

“ Revolving Credit Lender ” means a Lender with a Revolving Credit Commitment or, if the Revolving Credit Commitments have terminated or expired, a Lender with Revolving Credit Exposure.

 

“ Security and Guarantee Agreement ” means a Security and Guarantee Agreement substantially in the form of Exhibit B between the Borrower, each Guarantor and the Administrative Agent.

 

“ Security Documents ” means, collectively, the Security and Guarantee Agreement, the Mortgages, the Pledge Agreement, the MPG Holdings Pledge Agreement and any other collateral agreement, intercreditor agreement, license or sub-license agreement or account control agreement delivered in connection with the Loan Documents, and all Uniform Commercial Code financing statements required by such documents to be filed with respect to the security interests in personal property and fixtures created pursuant to such documents.

“ Senior Cash Flow Ratio ” means, as at any date of determination thereof, the ratio of (i) Total Senior Indebtedness as at such date to (ii) Cash Flow for the period of four fiscal quarters ending on or most recently ended prior to such date.

“ Series ” has the meaning assigned to such term in Section 2.01(c).

 

 

“ Shivers ” means Shivers Trading & Operating Company, a Georgia corporation.

“ Special Deferred Compensation ” means deferred compensation paid to senior officers and other executive employees of MCC , the Borrower and any Subsidiary of MCC of their respective Subsidiaries to the extent (a) paid by MCC or the Borrower in cash and concurrently reimbursed in cash by Shivers , Pesto, MPG Holdings or another Affiliate of MCC or the Borrower (not including MCC , the Borrower or any Restricted Subsidiary of MCC of their respective Subsidiaries ), (b) paid by MCC through the delivery of shares of Class A Common Stock of Mediacom or (c) paid in cash (or through the delivery of shares of Class A Common Stock of Mediacom) by Shivers or MPG Holdings or another Affiliate of MCC or the Borrower (not including MCC , the Borrower or any Restricted Subsidiary of MCC of their respective Subsidiaries ), but treated as an expense of MCC , the Borrower and its Restricted their respective Subsidiaries that is offset by a deemed capital contribution to MCC , the Borrower and its Restricted their respective Subsidiaries by such Affiliate.

“ Statutory Reserve Rate ” means, for the Interest Period for any Eurodollar Borrowing, a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the arithmetic mean, taken over each day in such Interest Period, of the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the Board).  Such reserve percentages shall include those imposed pursuant to such Regulation D.  Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

“ Subordinated Indebtedness ” means, collectively, (a) Indebtedness of the Loan Parties in respect of the 2003 Senior Subordinated Notes and (b) other Indebtedness that is subordinated to the obligations of the Obligors under this Agreement and the other Loan Documents.

“ Subsidiary ” means, for any Person, any corporation, limited liability company, partnership or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, limited liability company, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, limited liability company, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.  “ Wholly Owned Subsidiary ” means any such corporation, limited liability company, partnership or other entity of which all of the equity securities or other ownership interests (other than, in the case of a corporation, directors’ qualifying shares) are so owned or controlled.

 

 

“ Subsidiary Guarantors ” means, collectively, (i) each of the Subsidiaries of MCC and the Borrower contemplated to be signatories, as “Subsidiary Guarantors” to the Security and Guarantee Agreement (as provided in the form thereof attached as Exhibit B hereto), and (ii) each other Subsidiary of MCC or the Borrower that becomes a party to the Security and Guarantee Agreement as contemplated by Section 5.09.

“ Swingline Indebtedness ” means Indebtedness permitted under Section 6.03(k) which has been identified in a written notice from MCC or the Borrower to the Administrative Agent as “Swingline Indebtedness” for purposes of this Agreement and each other Loan Document.

 

“ Tax Consolidation Agreements ” means, collectively, the respective tax consolidation agreements dated as of August 7, 2003 between (a) MCC, Holdings and Shivers and (b) the Borrower, MCC and Shivers , as amended to include Questo, Pesto and MPG Holdings as part of the Permitted Reorganization .

“ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

“ Term ”, when used in reference to any Loan or Borrowing, refers to whether the Class of such Loan or Borrowing is Tranche A Term or Incremental Term, as opposed to Revolving Credit.

“ Term Loan Commitments ” means, collectively, the Tranche A Term Loan Commitments and the Incremental Term Loan Commitments.

“ Term Loan Lenders ” means, collectively, the Tranche A Term Loan Lenders and the Incremental Term Loan Lenders of any Series.

“ Term Loan Maturity Date ” means:  (a) with respect to the Tranche A Term Loans, the Quarterly Date falling on or nearest to September 30, 2012 and (b) with respect to the Incremental Term Loans of any Series, the maturity date for such Series specified at the time the same is established pursuant to Section 2.01(c).

 

“ Total Indebtedness ” means, as at any date, the sum of all Indebtedness at such date for Holdings (but not any Subsidiaries thereof), MCC , the Borrower and its Restricted their respective Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP as if the Borrower and its Subsidiaries were Subsidiaries of MCC ).

 

“ Total Senior Indebtedness ” means, as at any date, the sum of all Indebtedness at such date of MCC , the Borrower and its Restricted their respective Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP as if the Borrower and its Subsidiaries were Subsidiaries of MCC ), excluding, however, the 2003 Senior Subordinated Notes.

“ Tranche A Term ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are made pursuant to Section 2.01(b).

 

 

“ Tranche A Term Loan Commitment ” means, with respect to each Lender, the commitment, if any, of such Lender to make one or more Tranche A Term Loans hereunder on the Effective Date, expressed as an amount representing the maximum aggregate principal amount of the Tranche A Term Loans to be made by such Lender hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.06 or 2.08(b) and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Tranche A Term Loan Commitment is set forth on Schedule I, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Tranche A Term Loan Commitment, as applicable.  The initial aggregate amount of the Lenders’ Tranche A Term Loan Commitments is $175,000,000.

“ Tranche A Term Loan Lender ” means a Lender with a Tranche A Term Loan Commitment or an outstanding Tranche A Term Loan.

“ Transactions ” means the execution, delivery and performance by MCC and the Borrower of this Agreement and the other Loan Documents, the borrowing of Loans and the use of the proceeds thereof.

“ 2003 Senior Subordinated Notes ” means the 7% senior subordinated notes due August 1, 2013 issued on August 7, 2003 and on September 24, 2003 in the aggregate principal amount of $300,000,000 by the Borrower pursuant to an indenture dated August 7, 2003 between the Borrower, Morris Finance, the guarantors thereunder and Wachovia Bank, National Association, as trustee.

 

“ Type ”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans constituting such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

“ Unrestricted Subsidiaries ” means, collectively, (a) each entity designated as an “Unrestricted Subsidiary” in Part C of Schedule IV hereto, (b) any entity from time to time hereafter designated as an “Unrestricted Subsidiary” in accordance with the requirements of Section 6.11 and (c) any Subsidiary of an Unrestricted Subsidiary.

 

“Unrestricted Subsidiary” means any Subsidiary of MCC or the Borrower that is not a Restricted Subsidiary.  Each Subsidiary of MCC and the Borrower shall be automatically deemed to be a “Restricted Subsidiary” as of the Amendment No. 4 Effective Date.

 

“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

SECTION 1.02.  Classification of Loans and Borrowings.

 

For purposes of this Agreement, Loans may be classified and referred to by Class ( e.g. , a “Revolving Credit Loan”, “Tranche A Term Loan” or “Incremental Term Loan”) or by Type ( e.g. , an “ABR Loan”, or a “Eurodollar Loan”) or by Class and Type ( e.g. , a “Eurodollar

 

 

Revolving Credit Loan” or an “ABR Revolving Credit Loan”); each Series of Incremental Term Loans shall be deemed a separate Class of Loans hereunder.  In similar fashion, (i) Borrowings may be classified and referred to by Class, by Type and by Class and Type, and (ii) Commitments may be classified and referred to by Class; each Series of Incremental Term Borrowings and Incremental Term Loan Commitments shall be deemed a separate Borrowing and Commitment hereunder.

SECTION 1.03.   Terms Generally

 

The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

SECTION 1.04.   Accounting Terms and Determinations

 

(a)   Accounting Terms .  Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing at the time of delivery thereof in the manner described in subsection (b) below) be prepared, in accordance with generally accepted accounting principles applied on a basis consistent with those used in the preparation of the latest financial statements furnished to the Lenders hereunder (which, prior to the delivery of the first financial statements under Section 5.01, means the audited financial statements for MCC and its Subsidiaries as at December 31, 2004 referred to in Section 3.02).  All calculations made for the purposes of determining compliance with this Agreement shall (except as otherwise expressly provided herein) be made by application of generally accepted accounting principles applied on a basis consistent with those used in the preparation of the latest annual or quarterly financial statements furnished to the Lenders pursuant to Section 5.01 (or, prior to the delivery of the first financial statements under Section 5.01, used in the preparation of the audited financial statements for MCC and its Subsidiaries as at December 31, 2004 referred to in Section 3.02) unless

 

(i)  MCC and the Borrower shall have objected to determining such compliance on such basis at the time of delivery of such financial statements or

 

 

(ii)  the Required Lenders shall so object in writing within 30 days after delivery of such financial statements,

in either of which events such calculations shall be made on a basis consistent with those used in the preparation of the latest financial statements as to which such objection shall not have been made (which, if objection is made in respect of the first financial statements delivered under Section 5.01, means said audited financial statements referred to in Section 3.02).

 

(b)   Statements of Changes .  MCC and the Borrower shall deliver to the Lenders at the same time as the delivery of any annual or quarterly financial statements under Section 5.01 (i) a description in reasonable detail of any material variation between the application of accounting principles employed in the preparation of such statements and the application of accounting principles employed in the preparation of the next preceding annual or quarterly financial statements as to which no objection has been made in accordance with the last sentence of subsection (a) above and (ii) reasonable estimates of the difference between such statements arising as a consequence thereof.

 

(c)   Changes in Fiscal Periods .  To enable the ready and consistent determination of compliance with the covenants set forth in Sections 5 and 6, neither the Borrower nor MCC will change the last day of its fiscal year from December 31 of each year, or the last days of the first three fiscal quarters in each of its fiscal years from March 31, June 30 and September 30 of each year, respectively, provided that, notwithstanding the foregoing, the Borrower or MCC may for accounting convenience adjust such fiscal periods to end on dates different than those prescribed above, so long as the last day of any such fiscal period does not end on a date later than the dates prescribed above, or earlier than six days prior to the dates prescribed above.

 

(d)   Tax Consolidation Agreements .  Pursuant to the Tax Consolidation Agreements, the Borrower, Holdings, MCC and , Shivers , Questo, Pesto and MPG Holdings have agreed that MCC , the Borrower and its their respective Subsidiaries are not obligated to pay to Holdings or , Shivers , Questo, Pesto or MPG Holdings amounts in respect of Federal and State income taxes in excess of those provided therein.  Whenever making determinations under this Agreement of the amount of Federal and State income taxes payable during any period (or the amount of refunds in respect of such taxes receivable during any period) by MCC , the Borrower and its Restricted their respective Subsidiaries, the amount of such taxes payable or receivable shall be deemed to be equal to the amounts payable or receivable, as the case may be, in respect of such taxes under the Tax Consolidation Agreements without reference to whether Shivers, Questo, Pesto, MPG Holdings , Shivers and their respective Subsidiaries shall in fact pay any amounts in respect of Federal and State income taxes (or receive any amounts in respect of refunds of Federal and State income taxes) during the relevant period.

 

 

ARTICLE II

THE CREDITS

 

SECTION 2.01.   The Commitments

 

(a)   Revolving Credit Loans .  Subject to the terms and conditions set forth herein, each Revolving Credit Lender agrees to make Revolving Credit Loans to the Borrower from time to time during the Revolving Credit Availability Period in an aggregate principal amount that will not result in (i) such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Credit Commitment or (ii) the total Revolving Credit Exposures, together with the aggregate amount of Swingline Indebtedness, exceeding the total Revolving Credit Commitments.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Credit Loans.

 

(b)   Tranche A Term Loans .  Subject to the terms and conditions set forth herein, each Tranche A Term Loan Lender agrees to make one or more Tranche A Term Loans to the Borrower on the Effective Date in a principal amount not exceeding its Tranche A Term Loan Commitment.  Amounts prepaid or repaid in respect of Tranche A Term Loans may not be reborrowed.

 

(c)   Incremental Term Loans .  In addition to Borrowings of Revolving Credit Loans and Tranche A Term Loans pursuant to paragraphs (a) and (b) above, at any time and from time to time prior to the Term Loan Maturity Date, the Borrower may request that one or more Persons (which may include the Lenders) offer to enter into commitments to make term loans (each such loan being herein called an “ Incremental Term Loan ”) under this paragraph (c), it being understood that if such offer is to be made by any Person that is not already a Lender hereunder, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 9.04(b) in the event of an assignment to such Person.  In the event that one or more of such Persons offer, in their sole discretion, to enter into such commitments, and such Persons and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Borrower in connection therewith and the amortization and maturity date to be applicable thereto, the Borrower, such Persons and the Administrative Agent shall execute and deliver an appropriate agreement with respect thereto, and such Persons shall become obligated to make Incremental Term Loans under this Agreement in an amount equal to the amount of their respective Incremental Loan Commitments as specified in such agreement.  The Incremental Term Loans to be made pursuant to any such agreement between the Borrower and one or more Lenders in response to any such request by the Borrower shall be deemed to be a separate “ Series ” of Incremental Term Loans for all purposes of this Agreement.

Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Term Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $25,000,000, (ii) the aggregate principal amount of all Incremental Term Loan Commitments and Incremental Term Loans incurred after the Effective Date, together with (x) [Intentionally deleted], (y) the aggregate amount of increases in Revolving Credit Commitments effected

 

 

pursuant to Section 2.06(e) and (z) the aggregate amount of Indebtedness incurred pursuant to Section 5(b) of the Pledge Agreement, shall not exceed $350,000,000 or such higher amount to which the Required Lenders shall have consented, (iii) the final maturity for the Incremental Term Loans of any Series shall not be earlier than the Term Loan Maturity Date for Tranche A Term Loans, (iv) the weighted average life to maturity (determined in a manner satisfactory to the Administrative Agent) of the Incremental Term Loans of any Series at the time of the making thereof shall not be shorter than the then-remaining weighted average life to maturity (so determined) of the Tranche A Term Loans and (v) except for the amortization and interest rate to be applicable thereto, and any fees to be paid in connection therewith, the Incremental Term Loans of any Series shall have the same terms as the Tranche A Term Loans.

Anything in this Agreement to the contrary notwithstanding, unless the Required Lenders shall otherwise agree, the Borrower shall not have the right to request or borrow any Incremental Term Loans.

SECTION 2.02.   Loans and Borrowings .

(a)   Obligations of Lenders .  Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class (and, in the case of Incremental Term Loans, of a particular Series) and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class (and, if applicable, of the applicable Series).  The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

(b)   Type of Loans .  Subject to Section 2.11, each Borrowing shall be constituted entirely of ABR Loans or of Eurodollar Loans as the Borrower may request in accordance herewith.  Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

(c)   Minimum Amounts; Limitation on Number of Borrowings .  Each Eurodollar Borrowing shall be in an aggregate amount of $5,000,000 or a larger multiple of $1,000,000.  Each ABR Borrowing shall be in an aggregate amount equal to $2,000,000 or a larger multiple of $500,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total Commitments of the applicable Class (or, in the case of an Incremental Term Loan Commitment of any Series, in an aggregate amount that is equal to the entire unused balance of the total Commitments of such Series).  Borrowings of more than one Class and Type may be outstanding at the same time; provided that there shall not at any time be more than a total of fifteen Eurodollar Borrowings outstanding.

(d)   Limitations on Interest Periods .  Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request (or to elect to convert to or continue as a Eurodollar Borrowing):  (i) any Revolving Credit Borrowing if the Interest Period requested therefor would end after the Revolving Credit Commitment Termination Date; (ii) any Term Borrowing if the

 

 

Interest Period requested therefor would end after the applicable Term Loan Maturity Date; (iii) any Tranche A Term Loan Borrowing if the Interest Period requested therefor would commence before and end after any Principal Payment Date unless, after giving effect thereto, the aggregate principal amount of the Term Loans of such Class having Interest Periods that end after such Principal Payment Date shall be equal to or less than the aggregate principal amount of the Term Loans of such Class permitted to be outstanding after giving effect to the payments of principal required to be made on such Principal Payment Date or (iv) any Incremental Term Borrowing of any Series if the Interest Period requested therefor would commence before and end after any date for the payment of principal thereof unless, after giving effect thereto, the aggregate principal amount of the Incremental Term Loans of such Series having Interest Periods that end after such date shall be equal to or less than the aggregate principal amount of the Incremental Term Loans of such Series permitted to be outstanding after giving effect to the payments of principal required to be made on such date.

SECTION 2.03.   Requests for Borrowings .

(a)   Notice by the Borrower .  To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (i) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower.

(b)   Content of Borrowing Requests .  Each telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:

(i)  whether the requested Borrowing is to be a Revolving Credit Borrowing, Tranche A Term Borrowing or Incremental Term Loan Borrowing (including, if applicable, the respective Series of Incremental Term Loans to which such Borrowing relates);

(ii)  the aggregate amount of the requested Borrowing;

(iii)  the date of such Borrowing, which shall be a Business Day;

(iv)  whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

(v)  in the case of a Eurodollar Borrowing, the Interest Period therefor, which shall be a period contemplated by the definition of the term “Interest Period” and permitted under Section 2.02(d);

(vi)  the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.04; and

 

 

(vii) a certification that after giving effect to such Borrowing the total Revolving Credit Exposures, together with the aggregate amount of Swingline Indebtedness, does not exceed the total Revolving Commitments.

(c)   Notice by the Administrative Agent to the Lenders .  Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

(d)   Failure to Elect .  If no election as to the Type of a Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.  If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the requested Borrowing shall be made instead as an ABR Borrowing.

SECTION 2.04.   Funding of Borrowings .

(a)   Funding by Lenders .  Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders.  The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent in New York City and designated by the Borrower in the applicable Borrowing Request.

(b)   Presumption by the Administrative Agent .  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans.  If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.

SECTION 2.05.   Interest Elections .

(a)   Elections by the Borrower .  The Loans constituting each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have the Interest Period specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert such Borrowing to a Borrowing of a different Type or to continue such Borrowing as a Borrowing of the same Type and, in the case of a Eurodollar Borrowing, may

 

 

elect the Interest Period therefor, all as provided in this Section.  The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans constituting such Borrowing, and the Loans constituting each such portion shall be considered a separate Borrowing.

(b)   Notice of Elections .  To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower.

(c)   Content of Interest Election Requests .  Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:

(i)  the Borrowing to which such Interest Election Request applies (including, if applicable, the respective Series of Incremental Term Loans to which such Interest Election Request relates) and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) of this paragraph shall be specified for each resulting Borrowing);

(ii)  the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii)  whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

(iv)  if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period therefor after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period” and permitted under Section 2.02(d).

 

(d)   Notice by the Administrative Agent to the Lenders .  Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e)   Failure to Elect; Events of Default .  If the Borrower fails to deliver a timely and complete Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period therefor, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing.  Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or

 

 

continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period therefor.

SECTION 2.06.   Changes of Commitments .

(a)   Scheduled Termination and Reduction of Commitments .  Unless previously terminated, (i) the Tranche A Term Loan Commitments shall terminate at 5:00 p.m., New York City time, on the Effective Date, (ii) the Revolving Credit Commitments shall terminate on the Revolving Credit Commitment Termination Date and (iii) the Incremental Term Loan Commitments of each Series shall terminate on the close of business on the date specified therefor pursuant to Section 2.01(c) at the time such Series is established.  In addition, the Revolving Credit Commitments shall be automatically ratably reduced to $100,000,000 effective on the Amendment No. 3 Effective Date and shall be further automatically ratably reduced to $70,000,000 effective on the Amendment No. 4 Effective Date .  Concurrently with any such reduction in the Revolving Credit Commitments, the Borrower shall prepay Revolving Credit Loans in accordance with Section 2.08 to the extent necessary so that, after giving effect to such reduction, the total Revolving Credit Exposures do not exceed the total Revolving Credit Commitments.

 

(b)   Voluntary Termination or Reduction of Commitments .  The Borrower may at any time terminate, or from time to time reduce, the Commitments of any Class (including the Commitments of any Series of Incremental Term Loans); provided that (i) each reduction of the Commitments of any Class pursuant to this Section shall be in an amount that is $5,000,000 or a larger multiple of $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Credit Commitments if, after giving effect to any concurrent prepayment of the Revolving Credit Loans in accordance with Section 2.08, the total Revolving Credit Exposures would exceed the total Revolving Credit Commitments.

(c)   Notice of Voluntary Termination or Reduction of Commitments .  The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments of any Class under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the Administrat