Second Modification Agreement, effective June 30, 2021



SECOND MODIFICATION AGREEMENT



THIS SECOND MODIFICATION AGREEMENT (this “Agreement”) is entered into as of the 30th day of June, 2021 (the “Effective Date”), by and between THE DALLAS MORNING NEWS, INC., a Delaware corporation (“Lender”), and CHARTER DMN HOLDINGS, LP,  a  Texas limited partnership (“Borrower”).

W I T N E S S E T H:

WHEREAS, Lender is the sole owner and holder of that certain Promissory Note  dated May 17, 2019 (as amended, the “Note”), executed by Borrower and payable to Lender in the original principal amount of Twenty-Two Million Four Hundred Thousand and No/100 Dollars ($22,400,000.00) (the “Loan”);  

WHEREAS, the Loan is secured by that certain Deed of Trust, Security Agreement – Financing Statement executed by Borrower to Vicky Pogue Gunning, Trustee, dated May 17, 2019 (as amended, the “Deed of Trust”), filed for record under Instrument No. 201900127889 in the Real Property Records of Dallas County, Texas, covering certain property, together with all improvements and fixtures thereon, and all rights and interests appurtenant thereto (collectively, as described in the Deed of Trust, the “Property”) located in Dallas County, Texas,  and including the land being more particularly described in Exhibit A attached hereto and incorporated herein for all purposes;  

WHEREAS, Borrower and Lender entered into that certain Modification Agreement dated as of April 1, 2020 (the “First Modification” and together with the Note, Deed of Trust, and all other documents evidencing the Loan, the “Loan Documents”), filed for record under Instrument No. 202000092700 in the Real Property Records of Dallas County, Texas, pursuant to which, among other things, Borrower executed that certain Promissory Note (Interest and Property Tax Reconciliation) dated April 1, 2020 (the “Second Lien Note” and together with the other documents evidencing the Second Lien Loan, the “Second Lien Loan Documents”) in the original principal amount of $374,713.52 (the “Second Lien Loan”);  

WHEREAS, Borrower has requested an extension of the Maturity Date (as defined in the Note); and

WHEREAS, subject to the terms and conditions contained herein, Borrower and Lender have agreed to modify the Loan Documents as set forth below; and

NOW, THEREFORE: That for and in consideration of the terms and conditions contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, Lender and Borrower hereby agree as follows:

ARTICLE I

MODIFICATION

Section 1.01.  Outstanding Balance.  Borrower acknowledges and agrees that the current outstanding principal balance of the Loan is $22,400,000.00.

Section 1.02.Maturity Date Extension.  The Maturity Date of the Loan is hereby extended to June 30, 2022.  All references to the Maturity Date in the Loan Documents shall mean the Maturity Date, as modified by this Agreement. Borrower acknowledges that it has no right or option to extend the Maturity Date beyond June 30, 2022 and any provision of the Loan Documents, if any, that indicates that an option is or may be available are hereby waived and terminated.

Section 1.03.Reaffirmation of Indebtedness and Liens.  Borrower hereby acknowledges and agrees and represents to Lender that the liens and security interests of the Deed of Trust and the other Loan Documents secure the Loan, as modified hereby, are valid and subsisting liens and security interests, and are superior to all liens, security interests and other encumbrances. Nothing herein contained shall impair the validity or priority of the liens and security interests under the Deed of Trust or the other Loan Documents.

Section 1.04.Definition of Loan Documents.  The term “Loan Documents”, as defined and used in the Loan Agreement and the other Loan Documents and herein, shall be, and hereby is, modified to include this Agreement.

Section 1.05Changes in Control. Notwithstanding anything to the contrary in the Loan Documents, Borrower shall not change its organizational structure as set forth on Schedule 2.01(a) attached hereto without (a) notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and (b) without first obtaining the prior written consent of Lender for any proposed changes that  (i) transfer ten percent (10%) or more direct or indirect interest in Borrower to any person if such person did not previously own at least ten percent (10%) direct or indirect interest in Borrower or (ii)  cause Ray Washburne to no longer have (directly or indirectly) full control and decision-making authority with respect to the Loan and the Loan Documents and with respect to the operation of the Property.

Section 1.06Post-Closing Obligation.  Borrower shall cause to be delivered to Lender, at the sole cost and expense of Borrower (including, without limitation, all of Lender’s expenses in connection therewith), an updated appraisal of the Property, in form and content acceptable to Lender in its sole discretion, to be delivered by August 31, 2021.

ARTICLE II

BORROWER’S REPRESENTATIONS

Section 2.01.Borrower’s Representations and Warranties. To induce Lender to enter into this Agreement, Borrower represents and warrants that:

ARTICLE III

GENERAL PROVISIONS

Section 3.01.  Closing Conditions.  As a condition to the closing of this Agreement, all of the following shall have been satisfied, in each case in form, scope, and substance acceptable to Lender in its sole and absolute discretion:

Section 3.02.  Ratification.  Except as otherwise expressly modified by this Agreement, all terms and provisions of the Deed of Trust, the Note, and the other Loan Documents shall remain unchanged and hereby are ratified and confirmed and shall be and shall remain in full force and effect, enforceable in accordance with their terms.



Section 3.03.No Defenses.  Borrower, by its execution of this Agreement, hereby declares that it has no set-offs, counterclaims, defenses or other causes of action against Lender arising out of the Loan, Loan Documents, Second Lien Loan, or Second Lien Loan Documents, the modification of the Loan, any documents mentioned herein or otherwise; and, to the extent any such setoffs, counterclaims, defenses or other causes of action may exist, whether known or unknown, such items are hereby waived by Borrower.



Section 3.04.Payment of Expenses.  Borrower agrees to provide to Lender, upon demand, the reasonable attorneys’ fees and expenses of Lender’s counsel and other reasonable expenses incurred by Lender in connection with this Agreement.



Section 3.05.Further Assurances.  Borrower shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to Lender all documents, and take all actions, reasonably required by Lender from time to time to confirm the rights created or now or hereafter intended to be created under the Loan Documents, to protect and further the validity, priority and enforceability of the Loan Documents, to subject to the Loan Documents any property intended by the terms of any Loan Document to be covered by the Loan Documents, or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder.  Borrower also agrees to provide to Lender such other documents and instruments as Lender reasonably may request in connection with the modification of the Loan effected hereby.



Section 3.06.Binding Agreement.  This Agreement shall be binding upon, and shall inure to the benefit of, the parties’ respective heirs, representatives, successors and assigns.



Section 3.07.Enforceability.  In the event the enforceability or validity of any portion of this Agreement, the Note, the Deed of Trust, or any of the other Loan Documents is challenged or questioned, such provision shall be construed in accordance with, and shall be governed by, whichever applicable federal or Texas law would uphold or would enforce such challenged or questioned provision.



Section 3.08.Release of Lender.  Borrower hereby does release, remise, acquit and forever discharge Lender, together with its employees, agents, representatives, officers, directors, partners,

successors and assigns, subsidiary corporations, parent corporations, and related corporate divisions (all of the foregoing hereinafter called the “Released Parties”), from any and all actions and causes of action, judgments, executions, suits, debts, claims, demands, liabilities, obligations, damages and expenses of any and every character, known or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or nature, for or because of any matter or things done, omitted or suffered to be done by any of the Released Parties (but not for the gross negligence, willful misconduct or acts of bad faith of any of the Released Parties) prior to and including the date hereof, which in any way directly or indirectly arise out of or is in any way connected to this Agreement or any instrument evidencing or securing the Loan, or any of the transactions associated therewith.   THE FOREGOING RELEASE INCLUDES ACTIONS AND CAUSES OF ACTION, JUDGMENTS, EXECUTIONS, SUITS, DEBTS, CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS, DAMAGES AND EXPENSES ARISING AS A RESULT OF THE NEGLIGENCE OF ONE OR MORE OF THE RELEASED PARTIES, OTHER THAN TO THE EXTENT ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE RELEASED PARTIES.



Section 3.09Non Waiver of Events of Default.  Except as specifically provided herein, neither this Agreement nor any other document executed in connection herewith constitutes or shall be deemed (a) a waiver of, or consent by Lender to, any default or event of default which may exist or hereafter occur under any of the Loan Documents, (b) a waiver by Lender of any of Borrower’s obligations under the Loan Documents, or (c) a waiver by Lender of any rights, offsets, claims, or other causes of action that Lender may have against Borrower.



Section 3.10.Counterparts.  This Agreement may be executed in several counterparts, all of which are identical, each of which shall be deemed an original, and all of which counterparts together shall constitute one and the same instrument, it being understood and agreed that the signature pages may be detached from one or more of such counterparts and combined with the signature pages from any other counterpart in order that one or more fully executed originals may be assembled.  In addition, due execution of this Agreement by any party may be evidenced by email reflecting such party’s signature.  Any party to this Agreement shall be entitled to receive upon request, from any other party that has previously forwarded an executed counterpart of any such document by duplicate or email of such document bearing such other party’s ink original signature.



Section 3.11.Choice of Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT FEDERAL LAWS PREEMPT THE LAWS OF THE STATE OF TEXAS.



Section 3.12.Entire Agreement.  This Agreement, together with the other Loan Documents, contain the entire agreements between the parties relating to the subject matter hereof and thereof and all prior agreements relative thereto which are not contained herein or therein are terminated.  This Agreement and the other Loan Documents may be amended, revised, waived, discharged, released or terminated only by a written instrument or instruments, executed by the party against which enforcement of the amendment, revision, waiver, discharge, release or termination is asserted.  Any alleged amendment, revision, waiver, discharge, release or termination which is not so documented shall not be effective as to any party.

THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.





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IN WITNESS WHEREOF, this Agreement is executed effective as of the date first written above.









This instrument was acknowledged before me on the 30th day of June, 2021, by Katy Murray, as Treasurer/Assistant Secretary of The Dallas Morning News, Inc., a Delaware corporation, on behalf of said corporation.













This instrument was acknowledged before me on the 30th day of June, 2021, by Ray W. Washburne, President of Charter DMN GP, LLC, a Texas limited liability company, general partner of CHARTER DMN HOLDINGS, LP, a Texas limited partnership, on behalf of said limited partnership.