WAIVER NO. 5
WAIVER NO. 5
dated as of April 22, 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 ” and,
together with the Borrower, MCC, Holdings, Shivers and MPG
Holdings, the “ Obligors ”), the Lenders
executing this Agreement on the signature pages hereto and JPMORGAN
CHASE BANK, N.A., as administrative agent for the lenders party to
the Credit Agreement referenced below (in such capacity, together
with its successors in such capacity, the “ Administrative
Agent ”).
The Borrower,
MCC, the lenders party thereto and the Administrative Agent are
parties to a Credit Agreement dated as of December 14, 2005 (as
amended by Amendment No. 1 thereto, Amendment No. 2 and Waiver
thereto, Amendment No. 3 thereto, Amendment No. 4 and Waiver No. 2
thereto, Waiver No. 3 thereto and Amendment No. 5 and Waiver No. 4
thereto and as otherwise modified and supplemented and in effect
immediately prior to the effectiveness of this Agreement, the
“ Credit Agreement ”). The Lenders
executing this Agreement on the signature pages hereto wish now to
waive a certain Default under the Credit Agreement, subject to the
terms and provisions of this Agreement, and, accordingly, the
parties hereto hereby agree as follows:
Section
1. Definitions . Except as otherwise
defined in this Agreement, terms defined in the Credit Agreement
are used herein as defined therein.
Section
2. Waiver . Subject to the
satisfaction of the conditions precedent specified in
Section 4 hereof, but effective as of the date hereof, the
Administrative Agent, on behalf of the Lenders, hereby:
(a) extends,
until 5:00 p.m., New York City time, on May 28, 2009, the
waiver set forth in Section 3(a) of Amendment No. 4 and Waiver No.
2 to the Credit Agreement of any Default under clause (b) of
Article VII of the Credit Agreement that consists solely of the
Borrower or Morris Finance defaulting in the payment when due of
interest due on February 1, 2009 on the 2003 Senior Subordinated
Notes (the “ Bond Interest Payment Default ”);
and
(b) waives
any Default that consists solely of MCC and the Borrower defaulting
in the performance of their obligation under Section 5.01(b) of the
Credit Agreement to deliver audited financial statements, together
with the opinion thereon of independent certified public
accountants as required therein, with respect to the fiscal year of
MCC ending December 31, 2008 within 106 days of the end of such
fiscal year (the “ Audited Financial Default ”
and, together with the Bond Interest Payment Default, the “
Specified Defaults ”), provided that such
audited financial statements and opinion are delivered prior to
5:00 p.m., New York City time, on April 24, 2009 (it being
understood that such waiver shall expire at such time if such
audited financial statements and opinion have not been delivered to
the Lenders prior to such time);
p
rovided that such waivers shall expire upon:
(i) the
termination or expiry of the Amended Forbearance Agreement
referenced below or the occurrence of any “Forbearance
Termination Event” thereunder (as such term is defined
therein);
(ii) any
amendment, waiver, supplementation or modification of the Amended
Forbearance Agreement (other than Amendment No. 2 to Forbearance
Agreement referenced below) without the consent of the Required
Lenders;
(iii) the
occurrence or continuance of any Default (including the Audited
Financial Default) other than (x) the Bond Interest Payment Default
or (y) at any time prior to 5:00 p.m., New York City time, on April
24, 2009, the Audited Financial Default;
(iv) the
failure of any representation or warranty made in this Agreement to
be true and correct as of the date when made; or
(v) the
failure by any Obligor to comply with any term, condition, covenant
or agreement contained in this Agreement.
Upon the expiry
of any of the foregoing waivers as provided above, the
Administrative Agent and each Lender shall be entitled to exercise
any and all rights and remedies under the Loan Documents in respect
of any Event of Default covered by such waiver to the extent such
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