EXHIBIT 10.1
THIRD AMENDMENT
TO
CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
as of July 25, 2003 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
Amended and Restated Credit Agreement dated as of April 18, 2000 with the
Lenders from time to time party thereto, CITICORP USA, INC., as Administrative
Agent and Swingline Lender, CITIBANK, N.A., as Issuing Bank, DB ALEX. XXXXX LLC,
as Syndication Agent, XXXXX FARGO BANK, N.A., as Documentation Agent, and BANK
OF AMERICA, N.A., as Co-Agent, as amended by the First Amendment to the Credit
Agreement dated as of May 10, 2001, by the Second Amendment to the Credit
Agreement and Limited Waiver dated as of December 14, 2001 and the Third
Amendment to Credit Agreement and Limited Waiver and Consent dated as of June
12, 2002 (as so amended, the "Credit Agreement").
2. The Borrower and Holdings have requested that the Lenders agree to amend
certain provisions set forth in the Credit Agreement necessary to permit, among
other things, (i) Holdings to incur indebtedness in lieu of the payment of cash
interest in respect of the Discount Debentures; and (ii) the issuance of such
indebtedness to LG&P (as defined in the Credit Agreement) (or an affiliate) in
connection therewith.
4. The Lenders are willing to agree to such amendments 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
2.1 Amendments to Credit Agreement. As of the Third Amendment Effective
Date (as defined below), the Credit Agreement shall be amended as follows:
2.1.1 The definition of the term "Consolidated Cash Interest Expense"
in Section 1.1 of the Credit Agreement is hereby amended by adding a new clause
(iv) to clause (c) thereof to read as follows: "or (iv) interest paid in the
form of PIK Notes."
2.1.2 Section 1.1 of the Credit Agreement is hereby further amended by
adding thereto in appropriate alphabetical order the following definitions:
"THIRD AMENDMENT" means the Third Amendment to Credit
Agreement dated as of July 25, 2003 among the Borrower, Holdings, the
Lenders, Citibank, N.A., as Issuing Bank, and Citicorp USA, Inc., as
Administrative Agent and as Swingline Lender.
"THIRD AMENDMENT EFFECTIVE DATE" has the meaning set forth
in the Third Amendment."
"PIK NOTES" means Indebtedness of Holdings issued in lieu of
the payment of cash interest on any Discount Debentures and/or an any
such Indebtedness, the terms of which are no less favorable to
Holdings than the terms of the Discount Debentures."
2.1.3 Section 6.1(a)(iii) is hereby amended by adding the following
immediately after the words "Discount Debenture Indenture" appearing in such
Section: "and Indebtedness represented by the PIK Notes.
2.1.4 Section 6.9 is hereby amended by adding a new clause at the end
of such Section to read as follows:
"and (f) an agreement, on terms and conditions reasonably
satisfactory to the Administrative Agent, between an Affiliate and
Holdings pursuant to which such Affiliate agrees to accept PIK Notes
in lieu of the payment of cash interest otherwise payable on the
Discount Debentures held by such Affiliate and the transactions
described in such agreement.
III.
[RESERVED]
IV.
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties. Each of the Borrower and Holdings
hereby represents and warrants to each Agent, each Lender and the Issuing Bank
as follows:
4.1.1 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 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
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Adverse Effect, is qualified to do business in, and is in good standing in,
every jurisdiction where such qualification is required.
4.1.2 Such party has taken all necessary corporate action to authorize
the execution, delivery and performance of this Amendment (and the Credit
Agreement as amended hereby).
4.1.3 The execution, delivery and performance of this 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.
4.1.4 This Amendment has been duly executed and delivered by such
party and each of this 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 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).
4.1.5 After giving effect to this Amendment, no event has occurred and
is continuing, or would result from the execution and delivery of this Amendment
that would constitute a Default.
4.1.6 Each of the representations and warranties contained in this
Amendment and the Credit Agreement as amended hereby and in each of the other
Loan Documents is true and correct in all material respects as if set forth in
full herein and made on the date this Amendment becomes effective, except to the
extent that any such representation and warranty refers to an earlier date, in
which case it was true and correct as of such earlier date.
V.
CONDITIONS TO EFFECTIVENESS
The amendments effected by this Amendment shall become effective on
the date (the "Third Amendment Effective Date"), on which (i) Holdings, the
Borrower, the Administrative Agent, the Issuing Bank and the Required Term B
Lenders and the Required Revolving Lenders shall have executed and delivered
this Amendment to the Administrative Agent, and (ii) each other Guarantor shall
have executed and delivered the Consent attached hereto to the Administrative
Agent.
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VI.
MISCELLANEOUS
6.1 Effect of Amendment; No Waiver.
(a) Upon and after the effectiveness of this 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, as in effect immediately prior to the
effectiveness of this Amendment, 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 (to the extent that the Lien thereon has not been
released pursuant to the terms of the Loan Documents) 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 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, or constitute a waiver or amendment of any provision of any
of the Loan Documents.
6.2 Expenses. Without limiting any provision of this Amendment or Section
7.2 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 Amendment and the transactions contemplated hereby.
6.3 Governing Law. This 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.
6.4 Severability. The illegality or unenforceability of any provision of
this 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 Amendment, the Credit Agreement (including as
amended hereby) or such other document or any other instrument or agreement
required hereunder or thereunder.
6.5 Headings. Article and Section headings used herein are for convenience
of reference only, are not part of this Amendment and shall not affect the
construction of, or be taken into consideration in interpreting, this Amendment
(or the Credit Agreement as amended hereby).
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6.6 Counterparts. This 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 of this Amendment by telecopy
shall be effective as delivery of a manually executed counterpart of this
Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this 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: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: CFO
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LIBERTY GROUP PUBLISHING, INC., as a
Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: CFO
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CITICORP USA, INC., as Administrative Agent,
Swingline Lender and as a Lender
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Vice President
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CITIBANK, N.A., as Issuing Bank
By: /s/ (Illegible)
----------------------------------------
Name: (Illegible)
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Title: VP
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DB ALEX. XXXXX LLC, as Syndication Agent
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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BANKERS TRUST COMPANY, as a Lender
By:
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Name:
----------------------------------
Title:
----------------------------------
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XXXXX FARGO BANK, N.A., as Documentation
Agent and as a Lender
By: /s/ Xxxx X. Xxx
----------------------------------------
Name: Xxxx X. Xxx
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Title: Vice President
----------------------------------
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BANK OF AMERICA, N.A., as Co-Agent and as
a Lender
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
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Title: Vice President
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BLUE SQUARE FUNDING LTD. SERIES 3, as
a Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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JPMORGAN CHASE BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
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XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND,
as a Lender
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
----------------------------------------
Name: Payson X. Xxxxxxxxx
----------------------------------
Title: Vice President
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XXXXX XXXXX PRIME FUND, INC., as a Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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XXXXX XXXXX SENIOR INCOME TRUST, as
a Lender
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
----------------------------------------
Name: Payson X. Xxxxxxxxx
----------------------------------
Title: Vice President
----------------------------------
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ELF FUNDING TRUST I, as a Lender
By:
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Name:
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Title:
----------------------------------
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EMERALD ORCHARD LIMITED, as a Lender
By:
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Name:
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Title:
----------------------------------
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U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
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Title: Corporate Banking Officer
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GALAXY CLO 1999-1, LTD., as a Lender
By: SAI INVESTMENT ADVISER, INC.,
its Collateral Manager
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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KZH SOLEIL LLC, as a Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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KZH SOLEIL-2 LLC, as a Lender
By:
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Name:
----------------------------------
Title:
----------------------------------
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KZH STERLING LLC, as a Lender
By:
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Name:
----------------------------------
Title:
----------------------------------
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MAPLEWOOD (CAYMAN) LIMITED, as a Lender
By:
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Name:
----------------------------------
Title:
----------------------------------
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MASSACHUSETTS MUTUAL LIFE INSURANCE CO, as
a Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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MASTER SENIOR FLOATING RATE TRUST, as
a Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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XXXXXXX XXXXX PRIME RATE PORTFOLIO, as
a Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC., as a Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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XXXXXXXX XXXX XXXX XX XXXXXXXX/XXXXXXXX, as
a Lender
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
----------------------------------
Title: Vice President
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OXFORD STRATEGIC INCOME FUND, as a Lender
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
----------------------------------------
Name: Payson X. Xxxxxxxxx
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Title: Vice President
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THE PROVIDENT BANK, as a Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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SUNTRUST BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
----------------------------------------
Name: Xxxxxxx x. Xxxxxxxx, Xx.
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Title: Vice President
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XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Investment Advisory Corp
As Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Executive Director
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XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Investment Advisory Corp
As Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Executive Director
----------------------------------
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XXX XXXXXX
SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Executive Director
----------------------------------
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XXX XXXXXX SENIOR FLOATING RATE FUND,
as a Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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XXX XXXXXX SENIOR LOAN FUND
By: Van Kampan Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Executive Director
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CENTURION CDO II, LTD., as a Lender
By:
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Name:
----------------------------------
Title:
----------------------------------
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SEQUILS-CENTURION V, LTD., as a Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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KZH CYPRESSTREE LLC, as a Lender
By:
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Name:
----------------------------------
Title:
----------------------------------
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XXXXX XXXXX CDO II, LTD., as a Lender
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ (Illegible)
----------------------------------------
Name: (Illegible)
----------------------------------
Title:
----------------------------------
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XXXXX XXXXX CDO IV, LTD., as a Lender
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ (Illegible)
----------------------------------------
Name: (Illegible)
----------------------------------
Title:
----------------------------------
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XXXXXXX & CO., as a Lender
By: Boston Management and Research
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
----------------------------------------
Name: Payson X. Xxxxxxxxx
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Title: Vice President
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CONSENT
DATED AS OF JULY 25, 2003
The undersigned, in their respective capacities as (i) Guarantors
under the Guaranty, Indemnity and Subordination Agreement, (ii) Grantors under,
and as defined in, the Pledge and Security Agreements, (iii) Assignors under,
and as defined in, the Trademark Collateral Assignment and the Copyright
Security Agreement, and (iv) Makers and Payees under, and as defined in, the
Subsidiary Notes (as such terms are defined in and under that certain Amended
and Restated Credit Agreement dated as of April 18, 2000 (as amended,
supplemented, replaced or otherwise modified from time to time, the "CREDIT
AGREEMENT") among Liberty Group Operating, Inc., a Delaware corporation (the
"BORROWER"), Liberty Group Publishing, Inc., a Delaware corporation
("HOLDINGS"), the Lenders party thereto, Citicorp USA, Inc., as Administrative
Agent (in such capacity, the "ADMINISTRATIVE AGENT") and Swingline Lender (in
such capacity, the "SWINGLINE LENDER"), Citibank, N.A., as Issuing Bank (the
"ISSUING BANK"), DB Alex. Xxxxx LLC, as Syndication Agent (the "SYNDICATION
AGENT"), Xxxxx Fargo Bank, N.A., as Documentation Agent (the "DOCUMENTATION
AGENT"), and Bank of America, N.A., as Co-Agent) (the "CO-AGENT") ), each hereby
consents and agrees to the foregoing Amendment and hereby confirms and agrees
that (a) each of the Guaranty, Indemnity and Subordination Agreement, the Pledge
and Security Agreements, the Trademark Collateral Assignment, the Copyright
Security Agreement, and each of the Subsidiary Notes, and each of the other
Security Documents is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects, (b) each reference in the
Guaranty, Indemnity and Subordination Agreement, the Pledge and Security
Agreements, the Trademark Collateral Assignment, the Copyright Security
Agreement, the Subsidiary Notes and the other Security 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 by the foregoing Amendment, (c) the Guaranty, Indemnity and
Subordination Agreement does, and shall continue to, secure the payment and
performance of all of the Guaranteed Obligations (as defined in the Guaranty,
Indemnity and Subordination Agreement), (d) the Pledge and Security Agreements
and all of the Collateral does, and shall continue to, secure the payment and
performance of all of the Secured Obligations (as such terms are defined in the
Pledge and Security Agreements), (e) the Trademark Collateral Assignment and all
of the Trademark Collateral does, and shall continue to, secure the payment and
performance of all of the Secured Obligations (as such terms are defined in the
Trademark Collateral Assignment), (f) the Copyright Security Agreement and all
of the Copyright Collateral described therein does, and shall continue to,
secure the payment and performance of all of the Secured Obligations (as defined
in the Copyright Security Agreement) and (g) the Subsidiary Notes and all of the
Guarantor Collateral (as defined therein) do, and shall continue to, secure the
payment of all amounts payable thereunder.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have duly executed this Consent
as of the date first above written.
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 NEBRASKA HOLDINGS, INC.
LIBERTY GROUP NEVADA HOLDINGS, INC.
LIBERTY GROUP NEW YORK HOLDINGS, INC.
LIBERTY GROUP NORTH DAKOTA HOLDINGS, INC.
LIBERTY GROUP PENNSYLVANIA HOLDINGS, INC.
LIBERTY GROUP MANAGEMENT SERVICES, INC.
LIBERTY GROUP SUBURBAN NEWSPAPERS, INC.
ELKO DAILY FREE PRESS
MINERAL DAILY NEWS TRIBUNE, INC. ("WEST
VIRGINIA")
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: CFO, Liberty Group Publishing, Inc.
-----------------------------------
[Acting for and on behalf of each of the
entities named above]
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