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EXHIBIT 10.13
EXECUTION COPY
FIRST AMENDMENT AND CONSENT
FIRST AMENDMENT AND CONSENT (this "Amendment") dated as of January 30,
1998 to the Assumption Agreement and Amended and Restated Credit Agreement,
dated as of November 6, 1997 (the "Credit Agreement"), among TransWestern
Publishing Company LLC, a Delaware limited liability company, (the "Company"),
TWP Capital Corp. II, a Delaware corporation and a wholly owned Subsidiary of
the Company ("TWP Capital II"; the Company and TWP Capital II, collectively, the
"Borrowers"), the several banks and other financial institutions from time to
time parties thereto (the "Lenders"), Canadian Imperial Bank of Commerce, New
York Agency, as administrative agent for the Lenders thereunder (in such
capacity, the "Administrative Agent") and First Union National Bank, a national
banking association, as documentation agent for the Lenders thereunder (in such
capacity, the "Documentation Agent" and together with the Administrative Agent,
the "Agents").
W I T N E S S E T H :
WHEREAS, the Company has requested and the Administrative Agent and the
Required Lenders have agreed to amend certain provisions of the Credit Agreement
in the manner provided below;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. As used in this Amendment, unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as therein
defined. Unless otherwise indicated, all Section and subsection references are
to the Credit Agreement.
SECTION 2. Amendment. (a) Subsection 7.10(f) of the Credit Agreement is
hereby amended by deleting in its entirety clause (III) of the proviso to said
subsection and replacing it with the following:
"(III) except for the acquisition by the Company from Mast
Advertising and Publishing, Inc. of directories servicing certain areas
of Michigan, Ohio and Tennessee currently contemplated to occur in
February 1998, the Total Amount Expended in connection with which does
not exceed $8,200,000, neither the Company nor any Subsidiary will be
permitted to make any acquisition of another business (whether through
purchases of stock or assets or otherwise), at any time during the
Bridge Period unless the consideration for such acquisition consists
solely of Equity Consideration;"
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(b) Subsection 10.6(c) of the Credit Agreement is hereby amended by
inserting the words "and/or Term Loan" immediately following with words "(x) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Revolving Credit Commitment" in the second sentence of said subsection.
SECTION 3. Consent. The Required Lenders hereby consent and agree that
the Company may issue to Mast Advertising and Publishing, Inc. as part of the
consideration for the acquisition described in clause (III) of the proviso to
subsection 7.10(f) of the Credit Agreement, as amended herein, an unsecured
promissory note in the principal amount of $300,000 payable in one installment
on the first anniversary of the date of issuance thereof, bearing interest at
the rate of 8.5% per annum and containing adjustment provisions that will reduce
the principal amount thereof by certain amounts in the event that actual bad
debt experience of the Ohio and Michigan directories acquired in such
acquisition exceeds a designated level. The parties hereto consent and agree
that such promissory note shall constitute "Acquisition Debt" as defined in the
Credit Agreement.
SECTION 4. Representations and Warranties. After giving effect to this
Amendment, the Borrowers hereby confirm, reaffirm and restate the
representations and warranties set forth in Section 3 of the Credit Agreement as
if made on and as of the date hereof.
SECTION 5. Conditions to Effectiveness. This Amendment shall become
effective upon receipt by the Administrative Agent of counterparts of this
Amendment, duly executed and delivered by the Borrowers, Holdings and the
Required Lenders.
SECTION 6. Miscellaneous. Except as expressly amended herein, the Credit
Agreement shall continue to be, and shall remain, in full force and effect in
accordance with its terms. This Amendment may be executed by the parties hereto
in any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. The Company
agrees to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of this Amendment including, without limitation, the
fees and disbursements of counsel to the Administrative Agent. THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered in New York, New York by their properly and duly
authorized officers as of the day and year first above written.
TRANSWESTERN PUBLISHING COMPANY LLC
By:
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Title:
TWP CAPITAL CORP. II
By:
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Title:
TRANSWESTERN HOLDINGS L.P.
By:
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Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY,
as Administrative Agent
By:
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Title:
CIBC INC., as a Lender
By:
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Title:
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FIRST UNION NATIONAL BANK,
as Documentation Agent and as a Lender
By:
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Title:
ARES LEVERAGED INVESTMENT FUND L.P.
By:
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Title:
BANK OF HAWAII
By:
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Title:
BANKBOSTON, N.A.
By:
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Title:
BANKERS TRUST COMPANY
By:
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Title:
FLEET NATIONAL BANK
By:
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Title:
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ARCHIMEDES FUNDING, L.L.C.
By:
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Title:
PROTECTIVE ASSET MANAGEMENT COMPANY
By:
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Title:
KZH-CRESCENT CORPORATION
By:
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Title:
CRESCENT/MACH I PARTNERS, L.P.
By:
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Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:
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Title:
