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EXHIBIT 10.9
SECOND AMENDMENT
TO
CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment")
is dated as of September 30, 1999 and is by and among LIBERTY GROUP OPERATING,
INC., as Borrower, LIBERTY GROUP PUBLISHING, INC. ("Holdings"), the LENDERS (as
defined in the Credit Agreement referred to below) party hereto, CITIBANK, N.A.,
as Issuing Bank, and CITICORP USA, INC., as Administrative Agent and as
Swingline Lender.
RECITALS
1. The Borrower and Holdings have previously entered into that certain
Credit Agreement dated as of January 27, 1998 with the Lenders from time to time
party thereto, CITICORP USA, INC., as Administrative Agent and Swingline Lender,
CITIBANK, N.A., as Issuing Bank, BT XXXX XXXXX INCORPORATED, as Syndication
Agent, XXXXX FARGO BANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A.
(formerly known as Bank of America, NT&SA), as Co-Agent, as amended by that
certain First Amendment to Credit Agreement dated as of May 20, 1999 (as so
amended, the "Credit Agreement").
2. The Borrower has requested that the Lenders (i) amend the definition
of Capital Expenditures to exclude certain expenditures made with the proceeds
of certain asset sales and certain other specified capital expenditures and (ii)
consent to certain specified asset sales.
3. The Lenders are willing to agree to such amendment and grant such
consent on the terms and conditions set forth herein.
AGREEMENT
I.
DEFINITIONS
1.1. Defined Terms. Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to such terms in the Credit
Agreement.
II.
AMENDMENTS AND CONSENT
2.1. Amendments to Credit Agreement. As of the Second Amendment
Effective Date, the Credit Agreement shall be amended as follows:
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2.1.1. Section 1.1. Section 1.1 of the Credit Agreement is hereby
amended by:
(a) adding thereto in appropriate alphabetical order the
following definitions:
"'SECOND AMENDMENT' means the Second Amendment to
Credit Agreement dated as of September 30, 1999 among the
Borrower, Holdings, the Lenders and the Administrative Agent.
'SECOND AMENDMENT EFFECTIVE DATE' has the meaning set
forth in the Second Amendment.
'SPECIFIED CHICAGO ASSETS' means the assets described
on Schedule I to the Second Amendment. For purposes of determining
compliance with Section 6.6 hereof, the sale of the Specified
Chicago Assets shall be excluded.
'SPECIFIED CHICAGO CAPITAL EXPENDITURES' means Capital
Expenditures, to the extent actually made and in any event not
exceeding $5,000,000, consisting of the purchase and improvement
of a building and related real property located at 0000 Xxxxx Xx
Xxxxx, Xxxxxxxx, Xxxxxxxx and the purchase of a printing press and
other equipment to be located therein and other Capital
Expenditures necessary to prepare such building, printing press
and other equipment for use by Borrower or its Subsidiaries."
(b) amending the definition of "CAPITAL EXPENDITURES" by
adding thereto, immediately prior to the period at the end of such definition,
the following:
"and except any such expenditure made with (or in the amount
of) the proceeds of disposition of real property, printing
presses or other assets (other than the Specified Chicago
Assets) otherwise permitted hereunder (but in each case only
if such disposition results in receipt by the Borrower or a
Wholly-Owned Subsidiary of Borrower of gross cash proceeds of
at least $250,000) so long as such expenditures are made
within 18 months of such disposition and except that, for
purposes of determining compliance with Section 6.12 hereof,
the amount of any Specified Chicago Capital Expenditures shall
be excluded"
2.2. Consent. Notwithstanding the provisions of Section 6.6 of the
Credit Agreement, as of the Second Amendment Effective Date, the Required
Lenders hereby consent to the sale by the Borrower and its subsidiaries of the
Specified Chicago Assets at fair value for cash consideration.
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III.
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties. Each of the Borrower and Holdings
hereby represents and warrants to each Agent, each Lender and the Issuing Bank
as follows:
3.1.1. Such party is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, with all
requisite power and authority to carry on its business as now conducted and to
enter into and perform its obligations under this Second Amendment (and the
Credit Agreement as amended hereby) and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
3.1.2. Such party has taken all necessary corporate action to
authorize the execution, delivery and performance of this Second Amendment (and
the Credit Agreement as amended hereby).
3.1.3. The execution, delivery and performance of this Second
Amendment and the performance of each of the Loan Documents as amended hereby
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and except filings necessary
to perfect Liens created under the Loan Documents, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of any member of the Holdings Group or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument governing Material Indebtedness of, or any other
material agreement binding upon, any member of the Holdings Group or its assets,
or give rise to a right thereunder to require any payment to be made by any
member of the Holdings Group, and (d) will not result in the creation or
imposition of any Lien on any asset of any member of the Holdings Group, except
Liens created under the Loan Documents.
3.1.4. This Second Amendment has been duly executed and delivered
by such party and each of this Second Amendment and the Credit Agreement as
amended hereby constitutes the legal, valid and binding obligation of such
party, enforceable against such party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.1.5. Before and after giving effect to this Second Amendment, no
event has occurred and is continuing, or would result from the execution and
delivery of this Second Amendments that would constitute a Default.
3.1.6. Each of the representations and warranties contained in
this Second Amendment and the Credit Agreement as amended hereby and in each of
the other Loan Documents is true, correct and complete in all material respects
as if set forth in full herein and made on the date this Second Amendment
becomes effective, except to the extent that any such representation and
warranty specifically relates to an earlier date, in which case it was true,
correct and complete as of such earlier date.
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IV.
CONDITIONS TO EFFECTIVENESS
4.1. Conditions to Effectiveness. The amendments effected by this
Second Amendment shall not become effective until the date (the "Second
Amendment Effective Date") on which the following conditions precedent are
satisfied or waived in writing by the Required Lenders:
4.1.1. Execution of this Agreement. Holdings, the Borrower, the
Administrative Agent and the Required Lenders shall have executed and delivered
this Second Amendment to the Administrative Agent and each other Guarantor shall
have executed and delivered the Consent attached hereto to the Administrative
Agent.
4.1.2. Officer's Certificate. The Administrative Agent shall have
received a certificate of the Borrower, certifying as to (A) the names and true
signatures of the officers of the Borrower and each other Loan Party authorized
to sign this Second Amendment or the Consent, (B) the truth in all material
respects of the representations and warranties contained in the Loan Documents
as though made on and as of the Second Amendment Effective Date, other than any
such representations or warranties that by their terms refer to a date other
than the Second Amendment Effective Date, in which case such representations and
warranties shall be true and correct as of such other date, and (C) the absence
of any event occurring and continuing that constitutes a Default.
V.
MISCELLANEOUS
5.1. Effect of Amendment; No Waiver.
(a) Upon and after the effectiveness of this Second Amendment,
each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to "the Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement as modified hereby.
(b) Except as specifically modified above, the Credit Agreement
and the other Loan Documents are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed. Without limiting
the generality of the foregoing, the Security Documents and all of the
Collateral described therein do and shall continue to secure the payment of all
Secured Obligations under and as defined therein, in each case as amended
hereby.
(c) The execution, delivery and effectiveness of this Second
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender, the Issuing Bank or any Agent under
any of the Loan Documents, nor constitute a waiver or amendment of any provision
of any of the Loan Documents.
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5.2. Expenses. Without limiting any provision of the Second Amendment
or Section 9.3 of the Credit Agreement, each of the Borrower and Holdings
jointly and severally agrees to pay promptly all reasonable and documented
out-of-pocket costs and expenses of the Administrative Agent and the reasonable
and documented costs and expenses of the Administrative Agent's legal counsel in
connection with the preparation, negotiation, execution, delivery and
administration of this Second Amendment and the transactions contemplated
hereby.
5.3. Governing Law. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of law principles. The provisions of Sections 9.9(b)-(d) and 9.10
of the Credit Agreement shall apply hereto.
5.4. Severability. The illegality or unenforceability of any provision
of this Second Amendment, the Credit Agreement (including as amended hereby) or
any other document or any other instrument or agreement required hereunder or
thereunder shall not in any way affect or impair the legality or enforceability
of the remaining provisions of this Second Amendment, the Credit Agreement
(including as amended hereby) or such other document or any other instrument or
agreement required hereunder or thereunder.
5.5. Headings. Article and Section headings used herein are for
convenience of reference only, are not part of this Second Amendment and shall
not affect the construction of, or be taken into consideration in interpreting,
this Second Amendment (or the Credit Agreement as amended hereby).
5.6. Counterparts. This Second Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts, each of which,
when so executed shall be deemed an original, and all of said counterparts taken
together shall be deemed to constitute but one and the same instrument. Delivery
of an executed counterpart of a signature page to this Second Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Second Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Credit Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date first above
written.
LIBERTY GROUP OPERATING, INC., as
Borrower
By:
------------------------------------
Name:
-------------------------------
Title:
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LIBERTY GROUP PUBLISHING, INC., as a
Guarantor
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
CITICORP USA, INC., as Administrative
Agent, Lender and Swingline Lender
By:
------------------------------------
Name:
-------------------------------
Title:
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CITIBANK, N.A., as Issuing Bank
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
S-1
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BT ALEX. XXXXX INCORPORATED, as
Syndication Agent
By:
------------------------------------
Name:
-------------------------------
Title:
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S-2
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BANKERS TRUST COMPANY, as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
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S-3
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XXXXX FARGO BANK, N.A., as
Documentation Agent and as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
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S-4
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BANK OF AMERICA, N.A., as Co-Agent and
as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
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S-5
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THE CHASE MANHATTAN BANK, as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
S-6
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U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
S-7
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THE PROVIDENT BANK, as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
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X-0
00
XXXXXXXX XXXX, XXXXXXX FLORIDA, N.A.,
as a Lender
By:
------------------------------------
Name:
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Title:
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X-0
00
XXXXXXXX XXXX XXXX OF
MICHIGAN/ILLINOIS, as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
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S-10
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CONSENT
DATED AS OF SEPTEMBER 30, 1999
The undersigned, as Subsidiary Guarantors under the "Guaranty
Agreement" and as Subsidiary Grantors under the "Guarantor Pledge and Security
Agreement" (as such terms are defined in and under the Credit Agreement referred
to in the foregoing Second Amendment to Credit Agreement), each hereby consents
and agrees to the foregoing Second Amendment to Credit Agreement and hereby
confirms and agrees that (i) the Guaranty Agreement and the Guarantor Pledge and
Security Agreement are, and shall continue to be, in full force and effect and
are hereby ratified and confirmed in all respects except that, upon the
effectiveness of, and on and after the date of, said Second Amendment, each
reference in the Guaranty Agreement and the Guarantor Pledge and Security
Agreement to the "Credit Agreement," "thereunder," "thereof" and words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended by said Second Amendment, and (ii) the Guarantor
Pledge and Security Agreement and all of the Collateral described therein do,
and shall continue to, secure the payment of all of the Secured Obligations as
defined in the Guarantor Pledge and Security Agreement.
LIBERTY GROUP ARIZONA HOLDINGS, INC.
LIBERTY GROUP ARKANSAS HOLDINGS, INC.
LIBERTY GROUP CALIFORNIA HOLDINGS, INC.
LIBERTY GROUP IDAHO HOLDINGS, INC.
LIBERTY GROUP ILLINOIS HOLDINGS, INC.
LIBERTY GROUP IOWA HOLDINGS, INC.
LIBERTY GROUP KANSAS HOLDINGS, INC.
LIBERTY GROUP LOUISIANA HOLDINGS, INC.
LIBERTY GROUP MICHIGAN HOLDINGS, INC.
LIBERTY GROUP MINNESOTA HOLDINGS, INC.
LIBERTY GROUP MISSOURI HOLDINGS, INC.
LIBERTY GROUP NEW YORK HOLDINGS, INC.
LIBERTY GROUP NORTH DAKOTA HOLDINGS, INC.
LIBERTY GROUP PENNSYLVANIA HOLDINGS, INC.
LIBERTY GROUP MANAGEMENT SERVICES, INC.
NEW LEADER, INC.
THE XXXXXXXX GROUP, INC.
PRESS PUBLICATIONS, INC.
ASCENSION CITIZEN, INC.
MINERAL DAILY NEW TRIBUNE, INC.
LIFE PRINTING AND PUBLISHING CO., INC.
DIVERSIFIED PRINTERS OF HALSTAD, INC.
LIBERTY GROUP NEBRASKA HOLDINGS, INC.
LIBERTY SUBURBAN NEWSPAPERS, INC.
PRESS-REPUBLICAN NEWSPAPERS, INC.
XXXX NEWS PRINTING COMPANY
By:
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Name:
Title:
Acting for and on behalf of each of the
entities named above
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SCHEDULE I
1) Real Property located at 000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000.
2) Real Property located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx.
