WAIVERNO. 13

 

 

WAIVER NO. 13 dated as of September 4, 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, Amendment No. 5 and Waiver No. 4 thereto, Waiver No. 5 thereto, Waiver No. 6 thereto, Waiver No. 7 thereto, Waiver No. 8 thereto, Amendment No. 6 and Waiver No. 9 thereto, Waiver No. 10 thereto, Waiver No. 11 thereto and Waiver No. 12 thereto and as otherwise modified and supplemented and in effect immediately prior to the effectiveness of this Agreement, the “Credit Agreement”).  The Lenders executing this Agreement on the signature pages hereto wish now to waive a certain Default under the Credit Agreement, subject to the terms and provisions of this Agreement, and, accordingly, the parties hereto hereby agree as follows:

 

Section 1.  Definitions.  Except as otherwise defined in this Agreement, terms defined in the Credit Agreement are used herein as defined therein.

 

Section 2.  Waiver.  Subject to the satisfaction of the conditions precedent specified in Section 4 hereof, but effective as of the date hereof, the Administrative Agent, on behalf of the Lenders, hereby:

 

(a)  extends, until 5:00 p.m., New York City time, on September 11, 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 “February 1 Bond Interest Payment Default”);

 

(b)  extends, until 5:00 p.m., New York City time, on September 11, 2009, the waiver set forth in Section 3(b) of Amendment No. 6 and Waiver No. 9 to the Credit Agreement of any Default under clause (b) of Article VII of the Credit Agreement that consists solely of the Borrower or Morris Finance defaulting in the payment when due of interest due on August 1, 2009 on the 2003 Senior Subordinated Notes (the “August 1 Bond Interest Payment Default”);

 

 

 

(c)  extends, until 5:00 p.m., New York City time, on September 11, 2009, the waiver set forth in Section 2(c) of Waiver No. 12 to the Credit Agreement of any Default that consists solely of the Cash Flow Ratio exceeding the applicable amount permitted under Section 6.06(a) of the Credit Agreement with respect to the period of four fiscal quarters ending on June 30, 2009 (the “Cash Flow Ratio Default”); and

 

(d)  extends, until 5:00 p.m., New York City time, on September 11, 2009, the waiver set forth in Section 2(d) of Waiver No. 12 to the Credit Agreement of any Default that consists solely of the Interest Coverage Ratio being less than the applicable amount permitted under Section 6.06(c) of the Credit Agreement with respect to the period of four fiscal quarters ending on June 30, 2009 (together with the February 1 Bond Interest Payment Default, the August 1 Bond Interest Payment Default and the Cash Flow Ratio Default, the “Specified Defaults”);

 

provided that such waivers shall expire upon:

 

 (i)           the termination or expiry of the Amended Forbearance Agreement referenced below or the occurrence of any “Forbearance Termination Event” thereunder (as such term is defined therein);

 

(ii)           any amendment, waiver, supplementation or modification of the Amended Forbearance Agreement (other than Amendment No. 10 to Forbearance Agreement referenced below) without the consent of the Required Lenders;

 

(iii)           the occurrence or continuance of any Default other than a Specified Default;

 

(iv)           the failure of any representation or warranty made in this Agreement to be true and correct as of the date when made; or

 

(v)           the failure by any Obligor to comply with any term, condition, covenant or agreement contained in this Agreement.

 

Upon the expiry of any of the foregoing waivers as provided above, the Administrative Agent and each Lender shall be entitled to exercise any and all rights and remedies under the Loan Documents in respect of any Event of Default covered by such waiver to the extent such Event of Default shall then be continuing.

 

Section 3.  Representations and Warranties.  Each of the Obligors represents and warrants to the Lenders and the Administrative Agent, as to itself and each of its subsidiaries, that (i) the representations and warranties set forth in Article III of the Credit Agreement and in the other Loan Documents are true and complete as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, such representation or warranty shall be true and correct as of such specific date) and (ii) immediately before and after giving effect to this Agreement, no Default or Event of Default (other than any Specified Default or any Event of Default arising therefrom) has occurred and is continuing.

 

 

 

Section 4.  Conditions Precedent.  The waivers set forth in Section 2 hereof shall become effective as of the date hereof upon the satisfaction of the following conditions:

 

(i)           Execution.  The Administrative Agent shall have received executed counterparts of this Agreement from the Obligors and the Required Lenders.

 

(ii)           Amendment to Forbearance Agreement.  The Administrative Agent shall have received, in form and substance satisfactory to it, a duly executed and binding amendment (“Amendment No. 10 to Forbearance Agreement”) to the Forbearance Agreement dated as of February 26, 2009 among the Borrower, Morris Finance, the guarantors parties thereto and holders, or investment advisors or managers of holders, of over 75% of the principal amount of the outstanding 2003 Senior Subordinated Notes (as amended by the Amendment to Forbearance Agreement dated as of April 6, 2009, Amendment No. 2 to Forbearance Agreement dated as of April 23, 2009, Amendment No. 3 to Forbearance Agreement dated as of May 28, 2009, Amendment No. 4 to Forbearance Agreement dated as of June 12, 2009, Amendment No. 5 to Forbearance Agreement dated as of July 14, 2009, Amendment No. 6 to Forbearance Agreement dated as of July 31, 2009, Amendment No. 7 to Forbearance Agreement dated as of August 14, 2009, Amendment No. 8 to Forbearance Agreement dated as of August 21, 2009, Amendment No. 9 to the Forbearance Agreement dated as of August 28, 2009, Amendment No. 10 to Forbearance Agreement and any subsequent amendment thereto in form and substance satisfactory to the Required Lenders, the “Amended Forbearance Agreement”).

 

(iii)           No Default.  No Default or Event of Default (other than any Specified Default or any Event of Default arising therefrom) shall have occurred and be continuing on the date hereof.

 

(iv)           Expenses.  The Borrower shall have paid in full the costs, expenses and fees as set forth in Section 9.03 of the Credit Agreement (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent).

 

Section 5.  Security Documents.  Each of the Obligors (a) confirms its obligations under the Security Documents, as applicable, (b) confirms that the obligations of the Borrower and MCC under the Credit Agreement are entitled to the benefits of the pledges and guarantees, as applicable, set forth in the Security Documents, (c) confirms that the obligations of the Borrower and MCC under the Credit Agreement constitute “Guaranteed Obligations”, “Secured Obligations” and “Obligations” (as such terms are defined in the Security Documents, as applicable) and (d) confirms that the Credit Agreement is the “Credit Agreement” under and for all purposes of the Security Documents.

 

Section 6.  Additional Fee.  The Borrower shall pay to the Administrative Agent for the account of each Lender that, not later than the close of business New York City time on the date hereof, shall have executed a counterpart of this Agreement and delivered the same to the Administrative Agent (each, a “Consenting Lender”), a fee in an amount equal to 2% of the Commitments of such Consenting Lender (collectively for all Consenting Lenders, the “Waiver Fee”), which fee shall be fully earned on the date hereof and shall be due and payable on the earlier to occur of (x) the date on which the waivers extended pursuant to Section 2 hereof expire as provided in said Section or, if such waivers are extended by the Administrative Agent on behalf of the Required Lenders pursuant to a subsequent waiver, as provided in such subsequent waiver, and (y) September 18, 2009 (such earlier date, the “Waiver Expiration Date”); provided that the Waiver Fee shall be deemed waived and shall not be payable if (a) on or before the Waiver Expiration Date, all principal of and interest on the Loans and other amounts due and payable to the Lenders under the Loan Documents shall have been paid in full and the Commitments shall have terminated, (b) on or before the Waiver Expiration Date, Tranche Holdings, LLC or its designee shall have purchased the Loans and assumed the Commitments in full pursuant to a Master Assignment and Assumption in form and substance satisfactory to the Administrative Agent and the Lenders, or (c) prior to the payment of the Waiver Fee, Consenting Lenders having Commitments representing at least a majority of the Commitments of all Consenting Lenders shall so agree in writing.

 

Section 7.  Miscellaneous.  This Agreement shall be limited as written and nothing herein shall be deemed to constitute a waiver of any other term, provision or condition of the Credit Agreement or any other Loan Document in any other instance than as set forth herein or prejudice any right or remedy that the Administrative Agent or any Lender may have or may in the future have under the Credit Agreement or any other Loan Document.  Except as herein provided, each of the Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect.  This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same amendatory instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart.  Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.  This Agreement shall be governed by, and construed in accordance with, the law of the State of New York.