AMENDMENT NO. 3 TO FORBEARANCE AGREEMENT
AMENDMENT
NO. 3 TO FORBEARANCE AGREEMENT
This
Amendment No. 3 to Forbearance Agreement (this “Amendment No. 3”),
dated as of May 28, 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”) and Amendment No. 2 to Forbearance Agreement dated as of
April 23, 2009 (the “April 23 Forbearance
Amendment”, and the February 26 Forbearance Agreement, as amended by the
April 6 Forbearance Amendment and the April 23 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 April 23, 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. 5 (‘Waiver No. 5”),
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.
(a) From and
after the time this Amendment No. 3 becomes effective in accordance with Section 2 hereof, 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. 6, dated as of May 28, 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.
6”), 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. 5 (except
as a result of the execution of Waiver No. 6), or, following execution and
effectiveness of Waiver No. 6, any amendment, waiver,
supplementation or modification of Waiver No. 6, 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
pm. EDT on June 12, 2009.
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SECTION
2. Conditions to
Effectiveness. The effectiveness of this Amendment No. 3 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.
3;
(b) MPG, MCC
and the Administrative Agent shall have executed Waiver No. 6, 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. 3
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. 3, 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. 3 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. 3, 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. 3 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. 3 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. 3.
SECTION
8. Integration. The
Existing Forbearance Agreement, as amended by this Amendment No. 3 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. 3 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. 3 as set forth in Section 2 hereof,
this Amendment No. 3 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. 3 shall be interpreted in such a
manner as to be effective and valid under applicable law, but if any provision
of this Amendment No. 3 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. 3 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. 3 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. 3 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. 3 are included herein for convenience of
reference only and shall not constitute a part of this Amendment No. 3 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. 3, nor shall they publicly disclose Annex A or Schedule 1 to this
Amendment No. 3 (collectively, the “Holder Information”),
except: (1) in any legal proceeding relating to this Amendment No. 3, 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. 3 in connection with a
Form 8-K filing (in lieu of filing this Amendment No. 3 as an exhibit thereto);
(5) that MPG may include this Amendment No. 3 as an exhibit to the Company’s
Form 10-Q for the second 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. 3 (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.
3. 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. 3, 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. 3 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.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement 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:
/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:
/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:
/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:
/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:
/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:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of
Finance
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LOG
CABIN DEMOCRAT, LLC
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By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of
Finance
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ATHENS
NEWSPAPER, LLC
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By:
/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:
/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:
/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:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of
Finance
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SOUTHWESTERN
NEWSPAPERS COMPANY, L.P.
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By:
/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:
/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:
/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:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Senior Vice President of
Finance
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