AMENDMENT NO. 11 TO FORBEARANCE AGREEMENT
AMENDMENT
NO. 11 TO FORBEARANCE AGREEMENT
This
Amendment No. 11 to Forbearance Agreement (this “Amendment
No. 11”), dated as of September 11, 2009 (the “Amendment
Date”), is entered into by and among ▇▇▇▇▇▇ Publishing Group, LLC (“MPG”)
and ▇▇▇▇▇▇ Publishing Finance Co. (“MPF”)
(MPG and MPF, each an “Issuer”
and together, the “Issuers”),
each of the undersigned entities listed as guarantors (collectively, the “Guarantors”),
and each of the undersigned holders of the 7% Senior Subordinated Notes due 2013
Notes (the “Notes”)
and/or, to the extent not signing as a holder, their investment advisors or
managers identified on Annex
A hereto (collectively, the “Holders”). Each
capitalized term used herein and not otherwise defined herein shall have the
meaning attributed to such term in the Existing Forbearance Agreement (as
defined below).
W
I T N E S S E T H:
WHEREAS,
on February 26, 2009, the Issuers, the Guarantors and the Holders entered into
that certain Forbearance Agreement, dated as of February 26, 2009 (the “February
26 Forbearance Agreement”), as amended by that certain Amendment to
Forbearance Agreement dated as of April 6, 2009 (the “April
6 Forbearance Amendment”), Amendment No. 2 to Forbearance Agreement dated
as of April 23, 2009 (the “April
23 Forbearance Amendment”), Amendment No. 3 to Forbearance Agreement
dated as of May 28, 2009 (the “May
28 Forbearance Amendment”), Amendment No. 4 to Forbearance Agreement
dated as of June 12, 2009 (the “June
12 Forbearance Amendment”), Amendment No. 5 to Forbearance Agreement
dated as of July 14, 2009 (the “July
14 Forbearance Amendment”), Amendment No. 6 to Forbearance Agreement
dated as of July 31, 2009 (the “July
31 Forbearance Amendment”), Amendment No. 7 to Forbearance Agreement
dated as of August 14, 2009 (the “August
14 Forbearance Amendment”), Amendment No. 8 to Forbearance Agreement
dated as of August 21, 2009 (the “August
21 Forbearance Amendment”), Amendment No. 9 to Forbearance Agreement
dated August 28, 2009 (the “August
28 Forbearance Amendment”) and Amendment No. 10 to Forbearance Agreement
dated September 4, 2009 (the “September
4 Forbearance Amendment”, and the February 26 Forbearance Agreement, as
amended by the April 6 Forbearance Amendment, the April 23 Forbearance
Amendment, the May 28 Forbearance Amendment, the June 12 Forbearance Amendment,
the July 14 Forbearance Amendment, the July 31 Forbearance Amendment, the August
14 Forbearance Amendment, the August 21 Forbearance Amendment, the August 28
Forbearance Amendment and the September 4 Forbearance Amendment, the “Existing
Forbearance Agreement”), pursuant to which the Holders agreed, on the
terms and subject to the conditions set forth therein, to forbear during the
Forbearance Period from taking any Remedial Action under the Indenture and the
Notes, and from directing the Indenture Trustee to exercise any such rights and
remedies on their behalf resulting from the Existing Default and the Payment
Default;
WHEREAS,
on September 4, 2009, MPG, the Credit Parties, certain lenders party thereto,
and JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative
Agent”), entered into that certain Waiver No. 13 (‘Waiver
No. 13”), pursuant to which the Administrative Agent agreed to waive
certain defaults under the Credit Agreement;
WHEREAS,
the ▇▇▇▇▇▇ Companies have requested that the Holders continue to forbear from
taking any Remedial Action under the Indenture and the Notes, and from directing
the Indenture Trustee to exercise any such rights and remedies on the Holders’
behalf resulting from the Existing Default or the Payment Default;
and
WHEREAS,
subject to the terms and conditions set forth herein, the Holders have agreed to
temporarily continue their forbearance.
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION
1. Amendments
to Existing Forbearance Agreement.
From and
after the time this Amendment No. 11 becomes effective in accordance with Section
2 hereof,
(a) the
definition of “Forbearance Termination Event” in Section
1 of the Existing Forbearance Agreement shall be amended and restated in
its entirety and shall read as follows:
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(a)
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the
acceleration of the maturity of any obligations under the Credit
Agreement;
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(b)
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Waiver
No. 14, dated as of September 11, 2009, by and among MPG, MCC, ▇▇▇▇▇▇
Communications Holding Company, LLC, ▇▇▇▇▇▇▇ Trading & Operating
Company, MPG Newspaper Holding, LLC, certain subsidiary guarantors party
thereto, certain lenders party thereto and the Administrative Agent
(“Waiver
No. 14”), relating to the Credit Agreement and/or the ▇▇▇▇▇▇
Companies’ and MCC’s existing senior secured term and revolving credit
facilities (the “Senior
Secured Credit Facilities”) shall cease to be effective, whether as
a result of termination, expiration in accordance with its terms or
otherwise;
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(c)
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any
amendment, waiver, supplementation or modification of Waiver No. 13
(except as a result of the execution of Waiver No. 14), or, following
execution and effectiveness of Waiver No. 14, any amendment, waiver,
supplementation or modification of Waiver No. 14, in any such case without
the consent of each of the Holders;
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(d)
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the
occurrence of a Default or Event of Default under the Indenture other than
the Existing Default or the Payment
Default;
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(e)
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the
filing of a bankruptcy case, including, without limitation, a chapter 11
bankruptcy proceeding, by or with respect to any of the ▇▇▇▇▇▇ Companies
or any subsidiary thereof;
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(f)
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the
breach of, or failure of the ▇▇▇▇▇▇ Companies to comply with, Section
6(b) of this Agreement;
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(g)
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the
failure of any representation or warranty made by the ▇▇▇▇▇▇ Companies in
this Agreement, or any amendments hereto, to be true and correct in all
material respects as of the date when
made;
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(h)
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the
failure by the ▇▇▇▇▇▇ Companies to comply with any term, condition,
covenant or agreement contained in this Agreement, or any amendments
hereto; or
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(i)
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5:00
p.m. EDT on September 18, 2009.
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SECTION
2. Conditions
to Effectiveness. The effectiveness of this Amendment No. 11
shall be subject to the satisfaction of each of the following
conditions:
(a) the
Holders representing in the aggregate more than seventy-five (75) percent of the
outstanding principal amount of the Notes shall have executed this Amendment No.
11;
(b) MPG, MCC
and the Administrative Agent shall have executed Waiver No. 14, in form and
substance acceptable to each of the Holders, and delivered a copy thereof to
Stroock;
(c) the
Holders shall have received a duly executed counterpart of this Amendment No. 11
from each ▇▇▇▇▇▇ Company listed on the signature pages
hereto;
(d) (1) each
of the representations and warranties made by the Issuers and the Guarantors in
the Indenture, the Existing Forbearance Agreement, the Notes, and any amendments
thereto shall be true and correct in all material respects on and as of the
Amendment Date as though made on and as of such date (unless any such
representation or warranty relates solely to an earlier date, in which case it
shall have been true and correct in all material respects as of such earlier
date); and (2) no Default or Event of Default (except with respect to the
Existing Default and the Payment Default) shall have occurred or be continuing
as of the Amendment Date; and
(e) MPG shall
have paid all outstanding fees and expenses of the Advisors.
SECTION
3. Representations
of the Holders. Each Holder severally (but not jointly)
represents that, as of the date hereof: (i) it is the beneficial owner and/or
investment advisor or manager of discretionary accounts for the holders or
beneficial owners of the aggregate principal amount of the Notes listed opposite
such Holder’s name on the disclosure schedule attached hereto as Schedule
1; and (ii) it has the power and authority to execute, deliver and
perform this Amendment No. 11, either on its own behalf or on behalf of such
holders or beneficial owners for which it acts as investment advisor or
manager.
SECTION
4. Representations
of the Issuers. The ▇▇▇▇▇▇ Companies represent that, as of the
date hereof, since the Forbearance Effective Date, none of the ▇▇▇▇▇▇ Companies
or their Restricted Subsidiaries has (a) incurred any Liens, other than
Permitted Liens in an aggregate amount not exceeding $10.0 million or as
otherwise required under the Credit Agreement, or
(b)
entered into any transaction that would be prohibited by Section
6(d) of the Existing Forbearance Agreement (as modified by the April 6
Forbearance Amendment) if entered into after the effective date of the April 6
Forbearance Amendment.
SECTION
5. Reference
to and Effect Upon the Existing Forbearance
Agreement.
(a) Except as
specifically amended hereby, each of the Issuers, Guarantors and Holders hereby
acknowledge and agree that all terms, conditions, covenants, representations and
warranties contained in the Existing Forbearance Agreement, as amended hereby,
and all rights and obligations of the Issuers, Guarantors and Holders therein,
shall remain in full force and effect. Each of the Issuers,
Guarantors and Holders hereby confirms that the Existing Forbearance Agreement,
as amended hereby, is in full force and effect and that none of the Issuers,
Guarantors and Holders has any defenses, setoffs, recoupments, offsets, claims
or counterclaims to the obligations under the Existing Forbearance Agreement, as
amended hereby.
(b) Except as
expressly set forth herein, the execution, delivery and effectiveness of this
Amendment No. 11 shall not directly or indirectly (i) create any obligation to
continue to defer any enforcement action after a Default or Event of Default,
(ii) constitute a consent or waiver of any past, present or future violations of
any provisions of the Existing Forbearance Agreement, as amended hereby or (iii)
amend, modify or operate as a waiver of any provision of the Existing
Forbearance Agreement, as amended hereby. Except as expressly set
forth herein, each of the Issuers, the Guarantors and the Holders, as
applicable, reserves all of its or their respective rights, powers, and remedies
under the Existing Forbearance Agreement, as amended hereby and/or applicable
law. All of the provisions of the Existing Forbearance Agreement, as
amended hereby, are hereby reiterated, and if ever waived,
reinstated.
SECTION
6. Costs
and Expenses. The ▇▇▇▇▇▇ Companies agree to pay on demand all
costs and expenses of the Holders in connection with the preparation, execution
and delivery of this Amendment No. 11, including the reasonable fees, costs and
expenses of Stroock as counsel for the Holders with respect
thereto.
SECTION
7. Execution
in Counterparts. This Amendment No. 11 may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same
agreement. Delivery of an executed signature page to this Amendment
No. 11 by facsimile transmission or otherwise transmitted or communicated by
email shall be as effective as delivery of a manually executed counterpart of
this Amendment No. 11.
SECTION
8. Integration. The
Existing Forbearance Agreement, as amended by this Amendment No. 11 and any
agreements referred to herein constitute the entire contract among the parties
hereto relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof, and may not be modified or amended except by a written instrument,
signed by each of the parties hereto, expressing such amendment or modification;
provided,
however,
that this Amendment No. 11 is not intended to in any way supersede or contradict
the terms of the confidentiality agreements dated February 17, 2009 between MPG
and each of Stroock and FTI Consulting, Inc. Upon the effectiveness
of this Amendment No. 11 as set forth in Section
2 hereof, this Amendment No. 11 shall be binding upon and inure to the
benefit of the parties hereto and, subject to and in accordance with Section
13.10 of the Indenture, their respective successors.
SECTION
9. Severability. Wherever
possible, each provision of this Amendment No. 11 shall be interpreted in such a
manner as to be effective and valid under applicable law, but if any provision
of this Amendment No. 11 shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment No. 11 or the Existing Forbearance
Agreement.
SECTION
10. Survival. Each
of the covenants required to be performed by MPG, MCC or the ▇▇▇▇▇▇ Companies or
any of their respective Affiliates and Subsidiaries in the Existing Forbearance
Agreement (as hereby amended) or this Amendment No. 11 shall remain in full
force and effect until the earlier to occur of (i) the seventh (7th) Business
Day (as defined in the Credit Agreement as of the date hereof) after the date on
which any Forbearance Termination Date shall have occurred, or (ii) the
principal of the Loans (x) is declared to be due and payable or (y)
automatically becomes due and payable, in the case of clause (i) or (ii) above
as provided for in Article VII of the Credit Agreement.
SECTION
11. Applicable
Law. This Amendment No. 11 shall be governed by and be
construed and enforced in accordance with, the laws of the State of New York
(including without limitation Section 5-1401 of the New York General Obligations
Law).
SECTION
12. Submission
to Jurisdiction. EACH OF THE ISSUERS, THE GUARANTORS AND THE
HOLDERS HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE EXISTING
FORBEARANCE AGREEMENT AS AMENDED HEREBY AND IRREVOCABLY ACCEPTS FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE ISSUERS, THE GUARANTORS AND THE HOLDERS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE ISSUERS OR ANY GUARANTOR IN ANY OTHER JURISDICTION.
SECTION
13. Headings. Section
headings in this Amendment No. 11 are included herein for convenience of
reference only and shall not constitute a part of this Amendment No. 11 for any
other purposes.
SECTION
14. Confidentiality. Each
of the ▇▇▇▇▇▇ Companies and each Holder (and their respective successors and
assigns) shall not publicly disclose any information provided to them in
connection with this Amendment No. 11, nor shall they publicly disclose Annex
A or Schedule
1 to this Amendment No. 11 (collectively, the “Holder
Information”), except: (1) in any legal proceeding relating to this
Amendment No. 11, provided that the relevant ▇▇▇▇▇▇ Company and/or Holder, as
applicable, shall use its best efforts to maintain the confidentiality of Holder
Information in the context of any such proceeding; (2) to the extent required by
applicable law, rules, regulations promulgated thereunder, or obligations,
including, without limitation, U.S. federal securities laws, as determined after
consultation with legal counsel; (3) in response to an oral question,
interrogatory, request for information or documents, subpoena, civil
investigative demand or other process, or a request from a government agency,
regulatory authority or securities exchange; (4) that MPG may summarize this
Amendment No. 11 in connection with a Form 8-K filing (in lieu of filing this
Amendment No. 11 as an exhibit thereto); (5) that MPG may include this Amendment
No. 11 as an exhibit to the Company’s Form 10-Q for the third quarter of 2009;
provided,
however,
that MPG shall not include Annex
A or Schedule
1 in any such filing and shall only disclose Annex
A or Schedule
1 if specifically required to do so by the Securities and Exchange
Commission (“SEC”)
after taking all reasonable steps to resist disclosure, including requesting
that each of Annex
A and Schedule
1 be accorded confidential treatment by the SEC; and (6) that the ▇▇▇▇▇▇
Companies may provide a copy of this Amendment No. 11 (which copy shall not
include Annex
A or Schedule
1) to the Administrative Agent and the lenders under the Credit
Agreement, provided
that in the case of clauses (2), (3) or (5) above, the disclosing party provides
notice to the applicable Holder (promptly upon receipt of the subpoena or
request so that the Holder may seek an appropriate protective order or waive the
relevant ▇▇▇▇▇▇ Company’s requirement for compliance with this Section
14), unless such notice would be prohibited by law. The ▇▇▇▇▇▇
Companies will not oppose any reasonable action by the applicable Holder to
obtain an appropriate protective order or other reliable assurance that
confidential treatment will be accorded the Holder Information and the
information contained therein. If the applicable Holder chooses to
oppose the production of such information, it does so at its own
expense. Responding to any such subpoena or other request, after
providing notice as set forth herein, shall not be deemed to be a breach of any
provision of this Amendment No. 11. Notwithstanding anything to the
contrary in this Section
14, the ▇▇▇▇▇▇ Companies may: (i) disclose the aggregate principal amount
of Notes held by the Holders executing this Amendment No. 11, taken as a whole
and without reference to the names of the Holders constituting such amount; and
(ii) provide the Indenture Trustee with the executed copy of this Amendment No.
11 that includes the individual signature pages of each of the Holders, but only
in the event that the ▇▇▇▇▇▇ Companies first obtain the Indenture Trustee’s
written consent not to publicly disclose any information relating to the
individual holdings of each Holder.
[SIGNATURE
PAGES FOLLOW]
NY
72300604
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 11 to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
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▇▇▇▇▇▇
PUBLISHING GROUP, LLC
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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▇▇▇▇▇▇
PUBLISHING FINANCE CO.
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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YANKTON
PRINTING COMPANY
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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BROADCASTER
PRESS, INC.
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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THE
SUN TIMES, LLC
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of
Finance
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▇▇▇▇▇
NEWS, LLC
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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NY
72187923
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LOG
CABIN DEMOCRAT, LLC
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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ATHENS
NEWSPAPERS, LLC
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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SOUTHEASTERN
NEWSPAPERS COMPANY, LLC
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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▇▇▇▇▇▇▇▇
COMMUNICATIONS, INC.
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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FLORIDA
PUBLISHING COMPANY
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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NY
72187923
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SOUTHWESTERN
NEWSPAPERS COMPANY, L.P.
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By:
▇▇▇▇▇▇ Publishing Group, LLC, its
general
partner
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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THE
OAK RIDGER, LLC
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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MPG
ALLEGAN PROPERTY, LLC
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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MPG
HOLLAND PROPERTY, LLC
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of Finance
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