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Exhibit 10.03
SECOND AMENDMENT AGREEMENT
THIS SECOND AMENDMENT AGREEMENT (this "Amendment"), dated as of June 23,
1997, is among XXXXXXXXX INTERNATIONAL PUBLISHING INC. (the "Company"),
TELEGRAPH GROUP LIMITED (the "U.K. Borrower"), XXXXXXXXX CANADIAN PUBLISHING
HOLDINGS INC. (the "Canadian Borrower" and, together with the Company and the
U.K. Borrower, the "Borrowers"), the Lenders listed on the signature pages
hereto (the "Lenders" and each a "Lender"), THE TORONTO-DOMINION BANK, as
Issuing Bank (the "Issuing Bank"), TORONTO DOMINION (TEXAS), INC., as
Administrative Agent, XXXXXXXXX INTERNATIONAL INC. ("Xxxxxxxxx International")
and XXXXXXXXX INTERNATIONAL (CANADA) HOLDINGS CO.("Canada Holdings");
W I T N E S E T H:
WHEREAS, the Borrowers, the Lenders, the Issuing Bank and the
Administrative Agent are parties to that certain Second Amended and Restated
Credit Agreement dated as of April 7, 1997, as amended by First Amendment
Agreement dated as of May 12, 1997 (the "Credit Agreement");
WHEREAS, the Canadian Borrower has made an offer to acquire the remaining
shares in Southam not currently owned by it as approved pursuant to the First
Amendment Agreement;
WHEREAS, the Canadian Borrower has requested the Lenders to consent to
certain changes in the offer for Southam and to amend the Credit Agreement as
hereinafter set forth below;
NOW, THEREFORE, the parties hereto, in consideration of the premises and
the mutual agreements herein contained, hereby agree as follows:
SECTION 1 CREDIT AGREEMENT DEFINITIONS. Capitalized terms used herein that
are defined in the Credit Agreement shall have the same meaning when used
herein unless otherwise defined herein.
SECTION 2 AMENDMENTS TO CREDIT AGREEMENT. Effective on (and subject to the
occurrence of) the Second Amendment Effective Date (as defined below), the
Credit Agreement shall be amended as follows:
2.1 Amendments to Section 1. Section 1 of the Credit Agreement
is amended as follows:
(a) The definition of "Approved Acquisition Circular" is
amended in its entirety to read as follows:
"Approved Acquisition Circular means each of the Initial
Acquisition Circular and the Subsequent Acquisition Circular."
(b) The definition of "Acquisition Documents" is amended in
its entirety to read as follows:
"Acquisition Documents means each Approved Acquisition
Circular and any other documents relating to either Approved Acquisition which
have been approved by the Administrative Agent."
(c) The definition of "Approved Acquisition" is amended in
its entirety to read as follows:
"Approved Acquisition means each of the Initial Southam
Acquisition and the Subsequent Southam Acquisition."
(d) Clause (d) of the definition of "Change in
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Control" is amended in its entirety to read as follows:
"(d) Xxxxxxxxx International shall cease to own,
directly or indirectly, 50% of the Voting Stock and 100% of the non-Voting
Stock of the Canadian Borrower (excluding, prior to the Mandatory Exchange
Date, the HCPH Special Shares other than those HCPH Special Shares acquired by
Xxxxxxxxx International pursuant to an Optional Exchange) or Xxxxxxxxx Inc.
shall cease to own, directly or indirectly, 50% of the Voting Stock of the
Canadian Borrower."
(e) Clause (d) of the definition of "Excess Cash Flow" is
amended in its entirety to read as follows:
"(d) Prior to the Subsequent Acquisition Date, any
Management Fees paid by Southam to the Company during such Fiscal Quarter."
(f) The definition of "Funded Debt" is amended by inserting
the following at the end thereof:
"For purposes of calculating the Senior Leverage Ratio
and the Total Leverage Ratio for periods ending before the Subsequent
Acquisition Date, in the event the ratio of Funded Debt of Southam and its
Subsidiaries (calculated on the same basis as for the Financial Group) to
Operating Cash Flow for Southam and its Subsidiaries (calculated on the same
basis as for the Financial Group) for the four fiscal quarters then most
recently ended exceeds 4.0:1.0, the amount of Funded Debt of Southam and its
Subsidiaries which causes the leverage ratio to exceed 4.0x shall be included
as Funded Debt."
(g) The definition of "Financial Group" is amended in its
entirety to read as follows:
"Financial Group means (a) prior to the Subsequent
Acquisition Date, the Company and its Restricted Subsidiaries other than
Southam and its Subsidiaries and (b) on and after the Subsequent Acquisition
Date, the Company and its Restricted Subsidiaries (including Southam and its
Subsidiaries)."
(h) The definition of "HCPH Special Share Exchange
Agreement" is amended in its entirety to read as follows:
HCPH Special Share Exchange Agreement means the Exchange
Indenture providing for the Exchange of Non-Voting Special Shares to be dated
the Tranche D Availability Date between the Canadian Borrower, Xxxxxxxxx
International and Montreal Trust Company of Canada, as trustee for the holders
of the HCPH Special Shares.
(i) The definition of "HCPH Special Shares" is amended in
its entirety to read as follows:
HCPH Special Shares means the non-voting, non-redeemable,
non-retractable Capital Stock of the Canadian Borrower which is issued in
connection with the Initial Southam Acquisition (including those issued or
transferred to holders of the Southam-Linked Debentures), which HCPH Special
Shares are (a) mandatorily exchangeable on the Mandatory Exchange Date and (b)
exchangeable at the option of the holder on any Optional Exchange Date into
Class A Common Stock of Xxxxxxxxx International.
(j) The definition of "Operating Cash Flow" is amended by
inserting the following at the end thereof:
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"For purposes of calculating Operating Cash Flow on or
after the Subsequent Acquisition Date, 100% of the Operating Cash Flow of LMPL
shall be included. The Operating Cash Flow of other non-Wholly Owned Restricted
Subsidiaries of Southam which have not executed a Canadian Guaranty and a
Canadian Security Agreement shall be excluded."
(k) The definition of "Redemption Date" is amended in its
entirety to read as follows:
"Redemption Date means the date on which (a) the FDTH
Series A and B Shares and the DTH Preference Shares have been redeemed and (b)
either (i) the Argsub Preference Shares have been redeemed or (ii) Argsub shall
have become a Wholly-Owned Restricted Subsidiary, all shares of Capital Stock
of Argsub shall have been pledged pursuant to the U.K. Pledge Agreement and
Argsub shall be a Dormant Subsidiary."
(l) The definition of "Series A Preferred Shares" is amended
in its entirety to read as follows:
"Series A Preferred Shares means the Series A Redeemable
Convertible Preferred Stock of Xxxxxxxxx International, as in effect on the
date of this Agreement or shares of another series of redeemable convertible
preferred stock having substantially similar attributes which are received by
Xxxxxxxxx Inc. or its designated Subsidiary in one or more exchange
transactions involving Xxxxxxxxx International."
(m) Section 1 is amended by adding the following definitions
in the proper alphabetical order:
Initial Acquisition Circular means the Canadian
Borrower's Offer to Purchase All of the Common Shares of Southam Inc. dated May
15, 1997 as amended and extended pursuant to the Notice of Extension and
Variation dated June 12, 1997 and by the Second Notice of Extension and
Variation dated June 26, 1997.
Initial Southam Acquisition means the acquisition of
shares of Southam by the Canadian Borrower pursuant to the Initial Acquisition
Circular.
Mandatory Exchange Date has the meaning set forth in the
HCPH Special Share Exchange Agreement.
Optional Exchange has the meaning set forth in the HCPH
Special Share Exchange Agreement.
Optional Exchange Date has the meaning set forth in the
HCPH Special Share Exchange Agreement.
Second Amendment Agreement means the Second Amendment
Agreement dated as of June 23, 1997, among the Borrowers, the Lenders, the
Issuing Bank and the Administrative Agent.
Subsequent Acquisition Circular means the documents to
be dispatched to Southam shareholders describing the Subsequent Southam
Acquisition and including the disclosures required by the applicable regulatory
authorities.
Subsequent Acquisition Date means the date the Subsequent
Southam Acquisition closes, the conditions set forth in Section 11.4 have been
Waived or satisfied and funds are advanced under Tranche D to purchase the
Southam shares acquired in connection with such Acquisition.
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Subsequent Southam Acquisition means the Acquisition,
after completion of the Initial Southam Acquisition, of all shares of Southam
not then owned by the Canadian Borrower financed under Tranche D on terms and
conditions satisfactory to the Lenders in their sole and absolute discretion.
2.2 Section 2.1.1. The last paragraph of Section 2.1.1 of the
Credit Agreement is amended in its entirety to read as follows:
"Commencing on the Amendment Effective Date, up to
$200,000,000 of the Tranche A Commitment shall be available to the Company for
issuance of Letters of Credit and Loans. Upon (a) the Canadian Acquisition
Date, up to $450,000,000 of the Tranche A Commitment shall be available to the
Company, (b) on the Tranche D Availability Date, up to $515,000,000 of the
Tranche A Commitment shall be available to the Company and (c) on the
Subsequent Acquisition Date, up to $900,000,000 of the Tranche A Commitment
shall be available to the Company.
2.3 Section 2.1.4. Section 2.1.4 of the Credit Agreement is
amended in its entirety to read as follows:
"Section 2.1.4 Tranche D Commitment. On and subject to
the terms and conditions of this Agreement (including Section 3), each of the
Canadian Lenders, severally and for itself alone, from time to time during the
period commencing on the Tranche D Availability Date and ending on the
Commitment Termination Date agrees to (a) make loans to the Acquisition
Borrower on a revolving basis (the "Tranche D Loans") and to create banker's
acceptances for the account of the Acquisition Borrower (the "Tranche D
Acceptances") in such Canadian Lender's Canadian Percentage of such aggregate
amount as the Acquisition Borrower may from time to time request from all
Canadian Lenders under the Tranche D Commitment, provided the Canadian Lenders
shall not be obligated to make any Tranche D Loan or create any Tranche D
Acceptance if, after making such Loan or creating such Acceptance, the sum of
(a) the aggregate principal amount of all outstanding Tranche D Loans plus (b)
the face amount of all outstanding Tranche D Acceptances exceeds (i) during the
period commencing on the Tranche D Availability Date and ending on the earlier
of the Subsequent Acquisition Date or the Commitment Termination Date, an
amount equal to the lesser of (x) the aggregate amount of Tranche D Commitments
and (y)$65,000,000 or (ii) during the period commencing on the Subsequent
Acquisition Date and ending on the Commitment Termination Date, the aggregate
amount of the Tranche D Commitments.
2.4 Section 6.1.2. Section 6.1.2 of the Credit Agreement is
amended as follows:
(a) Section 6.1.2(b) of the Credit Agreement is amended in
its entirety to read as follows:
"(b) Prior to the Subsequent Acquisition Date, on each
date that is fourteen Business Days after the date on which the Asset Coverage
Ratio has been below 0.60:1.0 for three consecutive Business Days, (i) the
Total Commitment and the Tranche A Commitment shall be reduced by the amount
necessary to reduce the Total Leverage Ratio to the lesser of 6.0:1.0 or to the
then applicable ratio (the "Required Reduction"), (ii) the Tranche D Commitment
shall be reduced by an amount equal to the lesser of (x) the Tranche D
Commitments and (y) the Required Reduction and (iii) if the Tranche D
Commitment is less than the Required Reduction, the Tranche C Commitment shall
be reduced by the amount by which the Required Reduction exceeds the Tranche D
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Commitment. The Canadian Borrower shall be entitled to sell that amount of
Southam shares pledged to the Lenders as may be necessary to enable the
Borrowers to make any prepayment required by such Commitment reductions. The
Borrowers shall not be permitted to borrow during such fourteen Business Days."
(b) Section 6.1.2(g) is amended in its entirety to read as
follows:
"(g) On August 31, 1997, if the Southam Acquisition Date
has not yet occurred, the Total Commitment and the Tranche A Commitment shall
automatically and permanently be reduced to $515,000,000 and the Tranche D
Commitment shall automatically and permanently be reduced to $65,000,000."
2.5 Section 6.1.3. Section 6.1.3 of the Credit Agreement is
amended in its entirety to read as follows:
"6.1.3 Application of Mandatory Commitment Reductions to
Tranches. Mandatory Commitment reductions pursuant to Section 6.1.2 shall be
applied against the mandatory reductions of the Commitments required by Section
6.1.2(f) in inverse order of reduction. Mandatory Commitment reductions
resulting from Asset Sales under Section 6.1.2(a) shall be applied dollar for
dollar (a) in the case of Asset Sales by the Canadian Borrower or any of its
Restricted Subsidiaries (other than Southam and its Restricted Subsidiaries or
the sale of Capital Stock of Southam), to the Tranche A and Tranche C
Commitments, (b) in the case of sale of Capital Stock of Southam prior to the
Subsequent Acquisition Date, as provided in Section 6.1.2(b) and after the
Subsequent Acquisition Date (provided the Lenders have given their consent), to
the Tranche A and Tranche D Commitments, (c) in the case of Asset Sales by the
U.K. Borrower or any of its Restricted Subsidiaries, to the Tranche A and
Tranche B Commitments, (d) in the case of Asset Sales by Southam or any of its
Restricted Subsidiaries after the Subsequent Acquisition Date, to the Tranche A
and Tranche D Commitments, and (e) in the case of Asset Sales by the Company or
any other Restricted Subsidiary, to the Tranche A Commitment and pro rata among
the Tranche B, Tranche C and Tranche D Commitments. Mandatory Commitment
reductions resulting from events described in Section 6.1.2(d) or (e) shall be
applied to the Tranche A Commitment and, to the extent that any such Commitment
would exceed the Total Commitment, the Tranche B, Tranche C and Tranche D
Commitments."
2.6 Section 10.1.4. Section 10.1.4 of the Credit Agreement is
amended by inserting at the beginning thereof the following: "Prior to the
Subsequent Acquisition Date,".
2.7 Section 10.6. Section 10.6 of the Credit Agreement is
amended in its entirety to read as follows:
"10.6 Financial Covenants.
10.6.1 Total Leverage Ratio. Not permit the Total
Leverage Ratio to exceed (a) 7.25:1.0 at any time prior to the Canadian
Acquisition Date, nor (b) at any time on or after the Canadian Acquisition
Date, but prior to the Subsequent Acquisition Date, the ratio set forth
opposite such period under the column heading "Post Canadian Acquisition" in
the table below, nor (c) at any time on or after the Subsequent Acquisition
Date the ratio set forth opposite such period under the column heading "Post
Subsequent Acquisition" in the table below; provided, however, that, prior to
the Subsequent Acquisition Date, if the Asset Coverage Ratio is less than
0.60:1.0, the Total
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Leverage Ratio shall not at any time exceed 6.00:1.0 with such stepdowns as the
Required Lenders may determine to be appropriate.
Post Canadian
Acquisition
Canadian Acquisition Period
Date to 09/29/97 6.75:1.0
09/30/97 to 03/30/98 6.50:1.0
03/31/98 to 12/30/98 6.00:1.0
12/31/98 to 06/29/99 5.00:1.0
06/30/99 to 12/30/99 4.50:1.0
12/31/99 to 12/30/00 4.25:1.0
12/31/00 and thereafter 4.00:1.0
Post Subsequent
Acquisition
Subsequent Acquisition Period
Date to 03/30/98 6.00:1.0
03/31/98 to 12/30/98 5.50:1.0
12/31/98 to 06/29/99 5.00:1.0
06/30/99 to 12/30/99 4.75:1.0
12/31/99 to 12/30/00 4.50:1.0
12/31/00 and thereafter 4.00:1.0
10.6.2 Senior Leverage Ratio. Not permit the Senior
Leverage Ratio to exceed (a) prior to the Subsequent Acquisition Date, the
ratio set forth opposite such period under the heading "Pre Subsequent
Acquisition" in the table below, and (b) after the Subsequent Acquisition Date,
the ratio set forth opposite such period under the heading "Post Subsequent
Acquisition" in the table below.
Pre Subsequent
Acquisition
Canadian Acquisition Period
Date to 09/29/97 4.25:1.0
09/30/97 to 12/30/98 4.00:1.0
12/31/98 to 12/30/99 3.50:1.0
12/31/99 to 12/30/00 3.25:1.0
12/31/00 and thereafter 3.00:1.0
Post Subsequent
Acquisition
Tranche D Availability Period
Date to 03/30/98 4.25:1.0
03/31/98 to 12/30/98 4.00:1.0
12/31/98 to 12/30/99 3.75:1.0
12/31/99 to 12/30/00 3.50:1.0
12/31/00 and thereafter 3.00:1.0
10.6.3 Interest Coverage Ratio. Not permit the Interest
Coverage Ratio to be less than the ratio set forth opposite the applicable
period below as of any Computation Period falling within such period.
Period Ratio
01/01/97 to 06/29/98 1.50:1.0
06/30/98 to 03/30/99 1.75:1.0
03/31/99 and thereafter 2.00:1.0
10.6.4 Fixed Charge Coverage Ratio. Not permit the Fixed
Charge Coverage Ratio to be less than (a) prior to the Tranche D Availability
Date, the ratio set forth opposite such period under the column heading
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"Pre Approved Acquisition" in the table below and (b) on or after the Tranche D
Availability Date, 1.15:1.0:
Pre Approved
Acquisition
Amendment Effective Period
Date to 06/29/98 1.05:1.0
06/30/98 and thereafter 1.10:1.0
10.6.5 Asset Coverage Ratio. Not permit the Asset
Coverage Ratio to be less than 0.60:1.0 at any time prior to the Subsequent
Acquisition Date. After the earlier of (a) the Subsequent Acquisition Date or
(b) the Commitment reduction pursuant to Section 6.1.2(b), this Section shall
no longer be applicable.
10.6.6 Computation of Financial Covenants. For purposes
of calculating any financial covenant contained in this Section 10.6, any
accounting adjustments or the reversal of any reserves established in
connection therewith shall not affect the calculation of such financial
covenant. Upon the implementation of any accounting adjustments, the financial
statements delivered hereunder and the financial covenants shall be prepared
without regard to such adjustments until a mutually satisfactory amendment to
the financial covenants has been implemented."
2.8 Section 10.7. Section 10.7 of the Credit Agreement is
amended by deleting clauses (n) through (q) thereof and inserting the following
therefor:
"; (n) from and after the Subsequent Acquisition Date,
to the extent the same are outstanding on such date, (i) the Southam Medium
Term Notes; (ii) Debt of Southam in connection with two Hedging Agreements
dated May 18, 1994 and July 26, 1994, respectively, having an aggregate
notional amount of Cdn$25,000,000; (iii) the SHC Preferred Shares; (iv) the
LMPL Redeemable Capital Stock, and (v) for a period ending 20 days after the
Southam Acquisition Date, Debt pursuant to the Cdn$75,000,000 Medium Term Notes
of Southam due December 8, 2005.
2.9 Section 10.8. Clause (1) of Section 10.8 of the Credit
Agreement is amended in its entirety to read as follows:
"(l) from and after the Southam Acquisition Date (or
such earlier date as may be acceptable to the Lenders), Liens securing the
Southam Medium Term Notes provided such Liens are pari passu with Liens in
favor of the Administrative Agent and are on terms satisfactory to the
Lenders."
2.10 Section 10.9. Section 10.9(b) of the Credit Agreement is
amended as follows:
(a) clause (iv) of Section 10.9(b) is amended in its
entirety to read as follows:
"(iv) loans, advances, dividends or distributions by any
Restricted Subsidiary to the Company or any Restricted Subsidiary or to
Xxxxxxxxx International for the purpose of redeeming shares of Series A
Preferred Shares on each date Southam-Linked Debentures are to be redeemed
pursuant to the cash offer or the cash and HCPH Special Share offer announced
by Xxxxxxxxx Inc. prior to the date of the Second Amendment in an amount not
exceeding the lesser of (x) the redemption price of the Series A Preferred
Shares being redeemed and (y) the amount of cash required to be paid to the
holders
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of the Southam-Linked Debentures who tender said Debentures for redemption in
connection with such offers;"
(b) Section 10.9(b) is amended by inserting the following
new clause (vii) at the end thereof:
"(vii) loans, advances, dividends or distributions to
Xxxxxxxxx International for the purpose of purchasing Class A Common Stock of
Xxxxxxxxx International on the open market in an amount not to exceed
$20,000,000 in the aggregate."
2.11 Section 10.10. Section 10.10 of the Credit Agreement is
amended as follows:
(a) Section 10.10 is amended by inserting the following new
clauses (j) and (k) following clause (i) and preceding the final paragraph:
"(j) Series A Preferred Stock acquired in connection
with redemption of the Southam-Linked Debentures on the Tranche D Availability
Date, and if applicable, any Southam-Linked Debentures acquired on such date
provided such Southam-Linked Debentures are simultaneously acquired by
Xxxxxxxxx Inc. on terms and conditions satisfactory to the Administrative
Agent; and
(k) investments in Capital Stock of Argsub, provided
that the conditions outlined in the definition of "Redemption Date" are met."
(b) Clause (iii) of the last paragraph of Section 10.10 is
amended in its entirety to read as follows:
"(iii) Prior to the Subsequent Acquisition Date, neither
the Company nor any of its Restricted Subsidiaries in the Financial Group shall
make any Investments in Southam or any of its Subsidiaries except pursuant to
the Initial Approved Acquisition and the Subsequent Approved Acquisition and
after the Subsequent Acquisition Date, neither the Company nor any of its
Restricted Subsidiaries in the Financial Group shall make any Investments in
any Restricted Subsidiaries of Southam which are not Obligors."
2.12 Section 10.11. Section 10.11(g) of the Credit Agreement is
amended in its entirety to read as follows:
"(g) the Initial Southam Acquisition provided the
conditions of Section 11.4 have been satisfied or waived with respect to such
Approved Acquisition and the Subsequent Southam Acquisition provided the
conditions of Section 11.4 have been satisfied or waived with respect to such
Approved Acquisition."
2.13 Section 10.18. Clause (c) of Section 10.18 of the Credit
Agreement is amended in its entirety to read as follows:
"(c) The obligations of the U.K. Borrower, the Canadian
Borrower and the Acquisition Borrower hereunder and under the other Loan
Documents are (i) secured by (x) (A) 100% of the Capital Stock and Subsidiary
Notes of the U.K. Borrower and each of its Restricted Subsidiaries, (B) 100% of
the Capital Stock (excluding, prior to the Mandatory Exchange Date, the HCPH
Special Shares) and Subsidiary Notes of the Canadian Borrower, the Acquisition
Borrower and each of their Restricted Subsidiaries in the Financial Group
(other than Southam and its Subsidiaries), all Series A Preferred Stock owned
by the Company or any of its Restricted
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Subsidiaries and all HCPH Special Shares acquired on any Optional Exchange Date
or on the Mandatory Exchange Date by Xxxxxxxxx International or any of its
Affiliates, (C) (1) on the Amendment Effective Date, not less than 42.8% of the
Capital Stock of Southam outstanding on the Amendment Effective Date, (2) on and
after the Tranche D Availability Date all of the Capital Stock and Subsidiary
Notes of Southam owned by Xxxxxxxxx International or any of its Affiliates other
than Capital Stock of Southam which is pledged to secure the Southam-Linked
Debentures,(3) on and after the Subsequent Acquisition Date, all of the Capital
Stock and Subsidiary Notes of Southam owned by Xxxxxxxxx International or any of
its Affiliates (which shall constitute not less than that percentage of all
Southam Capital Stock outstanding on such date as may be required by the Lenders
in connection with their approval of the Subsequent Southam Acquisition), (4) on
and after the Southam Acquisition Date, 100% of the Capital Stock and Subsidiary
Notes of Southam and 100% of the Capital Stock (or such lesser amount as is
owned by Southam) and Subsidiary Notes of each of Southam's Restricted
Subsidiaries and (y) substantially all the assets (other than real property) of
the U.K. Borrower, the Canadian Borrower, the Acquisition Borrower and each of
their Restricted Subsidiaries in the Financial Group (other than Southam and its
Restricted Subsidiaries) and, upon the Southam Acquisition Date, substantially
all the assets (other than real property) of Southam and its Wholly-Owned
Restricted Subsidiaries and (ii) guaranteed by each other Borrower and such
Borrower's Restricted Subsidiaries in the Financial Group other than the Israeli
Subsidiaries and Dormant Subsidiaries and, prior to the Southam Acquisition
Date, Southam and its Restricted Subsidiaries, subject, in each case, to such
exceptions as the Administrative Agent or the Required Lenders may from time to
time permit."
2.14 Section 10.31. Section 10.31 of the Credit Agreement is
amended in its entirety to read as follows:
"10.31 Capital Expenditures. Not, and not permit any
Restricted Subsidiary in the Financial Group to, make or commit to make any
Capital Expenditure during any Fiscal Year, unless, after giving effect to such
Capital Expenditure, the aggregate amount of all Capital Expenditures made by
the Company and such Restricted Subsidiaries during such Fiscal Year shall not
exceed (a) prior to the Subsequent Acquisition Date, $40,000,000 and (b) after
the Subsequent Acquisition Date, $60,000,000. In addition, (x) the Company and
its Restricted Subsidiaries organized in the United States may make Capital
Expenditures during Fiscal Years 1997, 1998 and 1999 not exceeding $100,000,000
in the aggregate for the Sun-Times Plant and (y) provided the Subsequent
Acquisition Date has occurred, Southam and its Restricted Subsidiaries may make
Capital Expenditures during Fiscal Years 1997 and 1998 not exceeding
$50,000,000 in the aggregate for the Southam Pacific Press."
2.15 Section 10.32. Sections 10.32(f) and (g) of the Credit
Agreement are deleted in their entirety.
2.16 Section 11.4.1. Section 11.4.1 of the Credit Agreement is
amended as follows:
(i) Clause (f) is amended in its entirety to read as
follows:
"(f) Certificate of Southam-Linked Debenture Trustee. A
certificate of Montreal Trust Company, as trustee for the holders of the
Southam-Linked Debentures, certifying the number of Southam-Linked Debentures
which have been tendered for redemption and setting forth the amount of cash
which must be delivered in connection with such redemption and the
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number of shares of Southam Capital Stock which will be redeemed upon receipt
of such amount.
(ii) Clause (i) is amended in its entirety to read as
follows:
"(i) Certificate of Depositary. A certificate of The R-M
Trust Company, as Depositary, certifying the number of Southam shares which
have been deposited pursuant to the Initial Acquisition Circular and not
withdrawn."
(iii) Clause (m) is deleted in its entirety.
2.17 Section 11.4.7. The Lenders agree that there is no Debt to
be Repaid in connection with the Initial Southam Acquisition.
2.18 Section 12.1. Section 12.1.15 of the Credit Agreement is
deleted in its entirety.
SECTION 3 AMENDMENTS TO XXXXXXXXX INTERNATIONAL GUARANTEE. Effective on
(and subject to the occurrence of) the Second Amendment Effective Date (as
defined below), Section 4.8 of the Xxxxxxxxx International Guarantee is amended
in its entirety to read as follows:
Section 4.8 Registration Statement. Xxxxxxxxx International shall file a
Registration Statement covering the Class A Common Stock to be issued pursuant
to the HCPH Special Share Exchange Agreement on or prior to December 23, 1997
and shall cause such Registration Statement to be declared effective as soon as
practicable. International shall maintain the effectiveness of such
Registration Statement (or another Registration Statement covering the shares
to be issued pursuant to the HCPH Special Share Exchange Agreement) at all
times from the effective date thereof until the Mandatory Exchange Date.
SECTION 4 REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders,
the Issuing Bank and the Administrative Agent to execute and deliver this
Amendment, each Borrower hereby represents and warrants to each Lender, the
Issuing Bank and to the Administrative Agent that:
(a) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from the execution and delivery or
effectiveness of this Amendment; and
(b) the warranties of the Borrowers contained in Section 9
of the Credit Agreement are true and correct as of the date hereof, with the
same effect as though made on such date.
SECTION 5 CONDITIONS TO EFFECTIVENESS. The amendments set forth in Section
2, Section 3 and Section 4 hereof shall become effective as of June 23, 1997
(the "Second Amendment Effective Date") when the Administrative Agent shall
have received ten counterparts of this Amendment executed by all of the parties
hereto.
SECTION 6 GENERAL.
6.1 Reaffirmation of Loan Documents. From and after the date
hereof, each reference that appears in any other Loan Document to the Credit
Agreement shall be deemed to be a reference to the Credit Agreement as amended
hereby. As amended hereby, the Credit Agreement is hereby reaffirmed, approved
and confirmed in every respect, and shall remain in full force and effect.
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6.2 Counterparts; Effectiveness. This Amendment may be executed
by the parties hereto in any number of counterparts and by the different
parties on separate counterparts and each such counterpart shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same Agreement.
6.3 Governing Law; Entire Agreement. THIS AMENDMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES. THIS AMENDMENT
CONSTITUTES THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY PRIOR AGREEMENTS WITH RESPECT
THERETO.
6.4 Loan Document. This Amendment is a Loan Document.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXXXXXX INTERNATIONAL PUBLISHING INC.
By:
Title:
XXXXXXXXX INTERNATIONAL INC.
By:
Title:
XXXXXXXXX INTERNATIONAL (CANADA)
HOLDINGS CO.
By:
Title:
TELEGRAPH GROUP LIMITED
By:
Title:
XXXXXXXXX CANADIAN PUBLISHING
HOLDINGS INC.
By:
Title:
TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:
Title:
12
THE TORONTO-DOMINION BANK, as
Issuing Bank
By:
Title:
TORONTO DOMINION (TEXAS), INC., as
Lender under Tranche A and Tranche B
By:
Title:
THE TORONTO-DOMINION BANK, as
Canadian Lender under Tranche C and
Tranche D
By:
Title:
CIBC INC., as Lender under Tranche A
By:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Lender under Tranche B and
Canadian Lender under Tranche C and
Tranche D
By:
Title:
THE BANK OF NOVA SCOTIA, as Lender
under Tranche A
By:
Title:
THE BANK OF NOVA SCOTIA, as Lender
under Tranche B
By:
Title:
THE BANK OF NOVA SCOTIA, as Canadian
Lender under Tranche C and Tranche D
By:
Title:
13
THE FIRST NATIONAL BANK OF CHICAGO,
as Lender under Tranche A and
Tranche B
By:
Title:
FIRST CHICAGO NBD BANK, CANADA, as
Canadian Lender under Tranche C and
Tranche D
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Lender under
Tranche A and Tranche B
By:
Title:
BANK OF AMERICA CANADA, as Canadian
Lender under Tranche C and Tranche D
By:
Title:
