FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.2
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”), made and entered into as of July 28, 2008, is by and among XXXXX MEDIA
COMPANY, a Delaware corporation (“Xxxxx”), Xxxxx, in its capacity as agent for the
Borrowers (“Borrowers’ Agent”), XXXXX FINANCE COMPANY, a Minnesota corporation (“Xxxxx
Finance”), XXXXX PUBLISHING COMPANY, a Delaware corporation, XXXXX PUBLISHING FINANCE COMPANY,
a Minnesota corporation, XXXX COMPANY, a Delaware corporation, LONG ISLAND BUSINESS NEWS, INC., a
New York corporation, DAILY JOURNAL OF COMMERCE, INC., a Delaware corporation, LAWYER’S WEEKLY,
INC., a Delaware corporation, LEGAL LEDGER, INC., a Minnesota corporation, THE JOURNAL RECORD
PUBLISHING CO., a Delaware corporation, DAILY REPORTER PUBLISHING COMPANY, a Delaware corporation,
NEW ORLEANS PUBLISHING GROUP, INC., a Louisiana corporation, NOPG, L.L.C., a Louisiana limited
liability company, WISCONSIN PUBLISHING COMPANY, a Minnesota corporation, LEGAL COM OF DELAWARE,
INC., a Delaware corporation, MISSOURI LAWYERS MEDIA, INC., a Missouri corporation, THE DAILY
RECORD COMPANY, a Maryland corporation, IDAHO BUSINESS REVIEW, INC., an Idaho corporation, FINANCE
AND COMMERCE, INC., a Minnesota corporation, COUNSEL PRESS, LLC, a Delaware limited liability
company, ARIZONA NEWS SERVICE, LLC, a Delaware limited liability company, XXXXX DLN LLC, a Delaware
limited liability company, XXXXX APC LLC, a Delaware limited liability company (“Xxxxx
APC”), and AMERICAN PROCESSING COMPANY, LLC, a Michigan limited liability company
(“APC”) (each (other than Xxxxx in its capacity as Borrowers’ Agent) a “Borrower”
and, collectively, the “Borrowers”), the banks party to the Credit Agreement defined below
(individually, a “Bank” and, collectively, the “Banks”), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association (“USBNA”), as agent for the Banks (in such
capacity, the “Agent”).
RECITALS
A. The Borrowers’ Agent, the Borrowers, the Banks and the Agent are parties to that certain
Second Amended and Restated Credit Agreement dated as of August 8, 2007 (as amended, supplemented
or modified from time to time, the “Credit Agreement”).
B. The Borrowers’ Agent has requested in accordance with clause (iii) of the definition of
“Permitted Acquisitions” in the Credit Agreement that the Banks consent to the acquisition by APC
of National Default Exchange Holdings, L.P. and related entities, and provide certain related
consents, as set forth in a letter dated June 13, 2008 from the Borrowers’ Agent to the Agent
attached hereto as Exhibit A (the “Request Letter”).
C. The Majority Banks are willing to grant such consents, and to amend certain provisions of
the Credit Agreement, in each case on and subject to the terms of this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby covenant and agree to be bound as follows:
Section 1. Capitalized Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement, unless the context shall
otherwise require.
Section 2. Consents. In accordance with the terms of the Credit Agreement, the
Majority Banks hereby grant the following consents, subject in each case to Section 4 of this
Amendment (each a “Consent” and, collectively, the “Consents”):
2.1 APC shall be permitted to acquire (i) 100% of the outstanding Equity Interests of
THP/NDEx AIV Corp., a Delaware corporation (“THP”), and THP/NDEx AIV, L.P., a
Delaware limited partnership (“THP LP”), (ii) all of the outstanding Equity
Interests of National Default Exchange Holdings, LP, a Delaware limited partnership
(“NDEx Holdings”), other than those held by THP LP, (iii) all of the outstanding
Equity Interests of National Default Exchange Management, Inc., a Delaware corporation
(“NDEx Management”), other than those held by THP LP, and (iv) each of the
Subsidiaries of THP, THP LP, NDEx Holdings and NDEx Management (the “NDEx
Subsidiaries” and, together with THP, THP LP, NDEx Holdings and NDEx Management,
“NDEx”), each on substantially the terms set forth in the draft Equity Purchase
Agreement provided to the Agent on or before the date hereof by and among APC, the “Sellers”
party thereto, Xxxxx, the “Sellers’ Representatives” party thereto and the other Persons
party thereto, or on such other terms as are reasonably acceptable to Agent (collectively,
the “NDEx Acquisition”);
2.2 Xxxxx APC shall be permitted to reduce its membership interest in APC to not less
than approximately 80% in connection with the NDEx Acquisition;
2.3 Xxxxx APC and APC shall be permitted to amend and restate the APC LLC Agreement in
substantially the form set forth in Exhibit B attached hereto (the “APC LLC
Amendment No. 4”) in connection with the NDEx Acquisition;
2.4 (i) Xxxxx APC and the Agent shall be permitted to amend the Pledge Agreement
executed by Xxxxx APC in substantially the form set forth in Exhibit C attached
hereto (the “Pledge Agreement Amendment”), (ii) APC and the Agent shall be permitted
to amend the Security Agreement executed by APC in substantially the form set forth set
forth in Exhibit D attached hereto (the “Security Agreement Amendment”), and
(iii) the Agent and the APC members party thereto shall be permitted to amend the APC Side
Letter in substantially the form set forth in Exhibit E attached hereto (the
“APC Side Letter Amendment”), in each case in connection with the NDEx Acquisition;
and
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2.5 At any time and from time to time after the date hereof and prior to October 1,
2008, Xxxxx shall be permitted to raise proceeds through the issuance of its Equity Interests without such proceeds being subject to mandatory prepayment under
Section 2.6(c) of the Credit Agreement, whether or not such issuance constitutes an Excluded
Equity Issuance. The Consent in this Section 2.5 shall be fully effective as of the date of
this Amendment notwithstanding anything to the contrary contained herein, including the
failure to satisfy any or all of the conditions set forth in Section 4 hereof.
Section 3. Amendments. Subject in each case only to the terms of Section 4, the
Credit Agreement is hereby amended as follows (such amendments reflected in Sections 3.2(b), 3.3,
3.6 and 3.9 to take effect upon execution and delivery of this Amendment by the Majority Banks, the
Agent, the Borrowers’ Agent and the Borrowers, with all other others to take effect on the date the
conditions set forth in Section 4 below are fully satisfied in accordance with the terms of such
Section):
3.1 New Definitions. Section 1.1 of the Credit Agreement is hereby amended by
adding the following terms thereto in the proper alphabetical order:
“First Amendment”: The First Amendment to Second Amended and Restated
Credit Agreement dated as of July 28, 2008 by and among the Borrowers, the
Borrowers’ Agent, the Banks and the Agent.
“NDEx”: Collectively, THP/NDEx AIV Corp., a Delaware corporation,
THP/NDEx AIV, L.P., a Delaware limited partnership, National Default Exchange
Holdings, LP, a Delaware limited partnership, National Default Exchange Management,
Inc., a Delaware corporation, and the NDEx Subsidiaries (as defined in the First
Amendment).
“NDEx Acquisition”: The acquisition by APC of 100% of the Equity
Interests of NDEx in accordance with the terms and conditions set forth in the First
Amendment.
“NDEx Purchase Agreement”: The Equity Purchase Agreement by and among
APC, the “Sellers” party thereto, Xxxxx, the “Sellers’ Representatives” party
thereto and the other Persons party thereto.
3.2 Amended Definitions.
(a) The definition of “APC Side Letter” set forth in Section 1.1 of the Credit
Agreement is hereby amended by replacing such definition in its entirety with the following:
“APC Side Letter”: The letter agreement dated as of the date of
consummation of the NDEx Acquisition by and between the Agent and the members of
APC, which amends and restates the letter agreement dated January 9, 2007.
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(b) The definition of “Applicable Margin” set forth in Section 1.1 of the Credit
Agreement is hereby amended by replacing such definition in its entirety with the following:
“Applicable Margin”: Subject to the last sentence of this definition,
with respect to the period beginning one day after the compliance certificate
required by Section 5.1(d) with respect to a fiscal quarter is required to be
delivered and ending on the date one day after the date such compliance certificate
for the next fiscal quarter is required to be delivered, the percentage specified as
applicable to Prime Rate Advances or LIBOR Advances, based on the Senior Leverage
Ratio calculated as of the end of the fiscal quarter for which such compliance
certificate was delivered:
| LIBO | Prime | |||||||
| Rate | Rate | |||||||
| Senior Leverage Ratio | Advances | Advances | ||||||
Less than 2.00:1.00 |
2.00 | % | 0.00 | % | ||||
Equal to or greater than 2.00:1.00 but less than
2.50:1.00 |
2.50 | % | 0.50 | % | ||||
Equal to or greater than 2.50:1.00 but less than
3.00:1.00 |
3.00 | % | 1.00 | % | ||||
Equal to or greater than 3.00:1.00 |
3.25 | % | 1.25 | % | ||||
For any period beginning one day after the compliance certificate required by
Section 5.1(d) with respect to a fiscal quarter is required to be but is not
delivered and ending on the date one day after the date such compliance certificate
is delivered, the Applicable Margin shall be as specified for a Senior Leverage
Ratio equal to or greater than 3.00 to 1.00; provided, however, that
for the period from the date of the consummation of the NDEx Acquisition until the
date the compliance certificate required pursuant to Section 5.1(d) is required to
be delivered for the third fiscal quarter of 2008, the Senior Leverage Ratio shall
be based on the Senior Leverage Ratio calculated, and reflected in the certificate
delivered, pursuant to Section 4.2 of the First Amendment.
(c) The definition of “Permitted Acquisition” set forth in Section 1.1 of the Credit
Agreement is hereby amended by replacing clause (iii) thereof with the following clause:
“(iii) the NDEx Acquisition or any other Acquisition consented to in writing by the Majority
Banks.”
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(d) The definition of “Pro Forma EBITDA” set forth in Section 1.1 of the Credit
Agreement is hereby amended by deleting the word “and” before clause (g) and adding the
following to the end of such definition:
“and (h) the sum of clauses (i) and (ii) above with respect to the NDEx
Acquisition shall be deemed to be $18,000,000 multiplied by the APC Ownership
Interest.”
3.3 Revolving Commitment Fee. Section 2.16 of the Credit Agreement is hereby
amended by replacing such section in its entirety with the following:
Section 2.16 Revolving Commitment Fee. Subject to the last sentence of
this Section 2.16, with respect to the period beginning one day after the day the
financial statements and compliance certificate required by Sections 5.1(c) and (d)
with respect to a fiscal quarter are required to be delivered and ending on the date
one day after the date such financial statements and compliance certificate for the
next fiscal quarter are required to be delivered, the Borrowers shall pay to the
Agent for the account of each Bank fees (the “Revolving Commitment Fees”) in
an amount determined by applying the percentage specified below based on the Senior
Leverage Ratio calculated as of the end of the fiscal quarter for which such
financial statements were delivered to the average daily unused Revolving Commitment
Amount of each Bank:
| Commitment Fee | ||||
| Senior Leverage Ratio | Percentage | |||
Less than 2.50:1.00 |
0.250 | % | ||
Equal to or greater than 2.50:1.00 but less than 3.00:1.00 |
0.375 | % | ||
Equal to or greater than 3.00:1.00 |
0.500 | % | ||
Revolving Commitment Fees are payable quarterly on the last day of each calendar
quarter and on the Revolving Loan Termination Date. Following the occurrence and
during the continuance of an Event of Default or for any period beginning one day
after the compliance certificate required by Section 5.1(d) with respect to a fiscal
quarter is required to be but is not delivered and ending on the date one day after
the date such compliance certificate is delivered, the Commitment Fee Percentage
shall be as specified for a Senior Leverage Ratio equal to or greater than 3.00 to
1.00; provided, however, that for the period from the date of the
consummation of the NDEx Acquisition until the date the compliance certificate
required pursuant to Section 5.1(d) is required to be delivered for the third fiscal
quarter of 2008, the Senior Leverage Ratio shall be
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based on the Senior Leverage
Ratio calculated, and reflected in the certificate delivered, pursuant to Section
4.2 of the First Amendment.
3.4 Representations and Warranties. Sections 4.1, 4.2 and 4.3 of the Credit
Agreement are hereby amended as follows:
(a) Section 4.1 is hereby amended by adding a comma and the term “limited
partnership” after the term “corporation” in the first line thereof and after the
term “corporate” in the third line thereof;
(b) Section 4.2 is hereby amended by adding a comma and the term “limited
partnership” after the term “corporate” in the third line thereof; and
(c) Section 4.3(b) is hereby amended by adding a comma and the term “limited
partnership agreement” after the term “bylaws” in the second line of such clause.
3.5 Subsidiaries. Section 4.18 of the Credit Agreement is hereby amended by
replacing such section in its entirety with the following:
Section 4.18 Subsidiaries. As of the date of the consummation of the
NDEx Acquisition, each Subsidiary of the Borrowers’ Agent is a Borrower and the
Borrowers have no Subsidiaries other than those listed on Schedule 4.18, which sets
forth the number and percentage of the shares of each class of Equity Interests
owned beneficially or of record by the Borrowers, and the jurisdiction of
organization of each Borrower.
3.6 Financial Statements and Reports. Section 5.1(c) of the Credit Agreement
is hereby amended by replacing the reference to “Section 5.1(b)” in the last sentence
thereof with “Section 5.1(c)”.
3.7 Restricted Payments. Section 6.7(g) of the Credit Agreement is hereby
amended by replacing such clause in its entirety with the following:
“(g) payments made in satisfaction of APC’s obligations under Section 7.7 of
the APC LLC Agreement as amended in accordance with the terms of this Agreement.”
3.8 Indebtedness. Section 6.13 of the Credit Agreement is hereby amended by
replacing clause (k) in its entirety with the following, renumbering the existing clause (l)
as clause (m) and adding a new clause (l) as follows:
(k) unsecured Indebtedness consisting of a “Put Note” issued by APC pursuant to
Section 7.7 of the APC LLC Agreement as amended in accordance with the terms of this
Agreement;
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(l) unsecured Indebtedness consisting of the “Earnout Payment” set forth in the
NDEx Purchase Agreement; and
3.9 Senior Leverage Ratio. Section 6.18 of the Credit Agreement is hereby
amended by replacing such section in its entirety with the following:
Section 6.18 Senior Leverage Ratio. The Borrowers will not permit the
Senior Leverage Ratio, as of the last day of any fiscal quarter, to be more than
3.50 to 1.00.
3.10 Schedules. Schedules 4.18, 6.8 and 6.14 to the Credit Agreement are
hereby amended by replacing such Schedules in their entirety with Schedules 4.18, 6.8 and
6.14 in the form attached hereto, with such changes as may be approved by the Agent to
conform to the NDEx Acquisition.
Section 4. Conditions to Effectiveness. This Amendment shall be a legal, valid and
binding agreement against the parties hereto upon the due execution and delivery of this Amendment
by the Majority Banks, the Agent, the Borrowers’ Agent and the Borrowers and, as such, no signatory
hereto shall be permitted to unilaterally rescind or revoke its signature hereto or otherwise
contest the validity or enforceability of this Amendment as against such Person (except as
specifically provided in the following provisions of this Section 4). Except as set forth in
Section 2.5 and with respect to the amendment set forth in Section 3.6, the Consents and the other
amendments set forth in Section 3 shall be deemed void ab initio and shall cease to have any force
or effect if any of the conditions set forth in this Section 4 are not satisfied by the earlier of
the consummation of the NDEx Acquisition and September 30, 2008 (unless any such conditions are
waived in writing by the Majority Banks) .
4.1 No Default or Event of Default shall have occurred and be continuing on the date of
consummation of the NDEx Acquisition.
4.2 The Borrowers’ Agent shall have delivered to the Agent a certificate calculating
the Senior Leverage Ratio reflecting on a pro forma basis the NDEx Acquisition (for this
purpose, using the amount in clause (a) of the definition of Senior Leverage Ratio
calculated as of the date of consummation of the NDEx Acquisition and using Pro Forma EBITDA
after giving effect to the amendment in Section 3.2(d) above), which Senior Leverage Ratio
shall be less than the maximum allowed Senior Leverage Ratio as of such date less
0.25.
4.3 The Agent shall have received copies or a final draft of the NDEx Purchase
Agreement and each other material document, instrument and agreement executed in connection
with the NDEx Acquisition (the “NDEx Acquisition Documents”), together with all lien
search reports for THP, THP LP, NDEx Holdings, NDEx Management and each NDEx Subsidiary and
lien release letters and other documents as the Agent may reasonably require to evidence the
termination of Liens on the businesses to be acquired (other than Liens permitted under
Section 6.14 of the Credit Agreement).
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4.4 The Agent shall have received a consent in favor of the Agent and the Banks to the
collateral assignment of rights and indemnities under the NDEx Acquisition Documents and (if
delivered to the Borrowers) opinions of counsel for the selling parties in favor of the
Agent and the Banks.
4.5 Xxxxx shall have received net proceeds of not less than $60,000,0000 from a private
placement or other issuance of its Equity Interests and the total of (i) the net proceeds
from such issuance and (ii) the Equity Interests in Xxxxx used to fund the NDEx Acquisition
shall not be less than $75,000,000.
4.6 The closing of the NDEx Acquisition shall occur not later than September 30, 2008
and the Borrowers shall have Availability of not less than $10,000,000 as of such date.
4.7 The members of APC shall have entered into APC LLC Amendment No. 4 in substantially
the form of Exhibit B hereto or with such changes as are reasonably acceptable to the Agent,
and the Agent shall have received a duly executed copy of APC LLC Amendment No. 4.
4.8 (i) Xxxxx APC shall have executed and delivered to the Agent the Pledge Agreement
Amendment, (ii) APC shall have executed and delivered to the Agent the Security Agreement
Amendment, and (iii) the members of APC shall have executed and delivered to the Agent the
APC Side Letter Amendment.
4.9 The Equity Interests owned by APC in THP, THP LP, NDEx Management, and NDEx
Holdings shall have been pledged to the Agent pursuant to a Pledge Agreement and
certificates representing such Equity Interests shall have been delivered to the Agent,
together with duly executed instruments of transfer or assignment in blank, each in form and
substance reasonably satisfactory to the Agent.
4.10 The Equity Interests owned by THP, THP LP, NDEx Management or NDEx Holdings in any
NDEx Subsidiary shall have been pledged to the Agent pursuant to a Pledge Agreement and
certificates representing such Equity Interests shall have been delivered to the Agent,
together with duly executed instruments of transfer or assignment in blank, each in form and
substance reasonably satisfactory to the Agent.
4.11 The Agent shall have received a copy of the Bylaws of THP, the Limited Partnership
Agreement of NDEx Holdings and THP LP, the Bylaws of NDEx Management and the comparable
organizational documents of each NDEx Subsidiary, each in form and substance reasonably
satisfactory to the Agent, certified as true and accurate by the secretary (or other duly
authorized officer of the applicable Person) of THP, THP LP, NDEx Holdings, NDEx Management
or such NDEx Subsidiary, as applicable.
4.12 THP, THP LP, NDEx Holdings, NDEx Management and each NDEx Subsidiary shall execute
and delivery to the Agent (i) a joinder agreement in the form attached hereto as Exhibit
F (the “Joinder Agreement (Credit Agreement)”) in order to
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become obligated to
repay the Loans and the other amounts payable under the Loan Documents and (ii) a joinder
agreement in the form attached hereto as Exhibit G (the “Joinder Agreement
(Security Agreement)”) in order to grant to the Agent a first priority security interest
subject no other Liens, except for Liens permitted pursuant to Section 6.14 of the Credit
Agreement, in the assets of such Person.
4.13 The Agent shall have received certified copies of all documents evidencing any
necessary corporate action, consent or governmental or regulatory approval (if any) with
respect to this Amendment.
4.14 The Agent shall have received for itself and for the ratable benefit of the Banks
the fees set forth in a separate fee letter dated as of July 25, 2008 between the Agent and
the Borrowers’ Agent.
Section 5. Representations, Warranties, Authority, No Adverse Claim.
5.1 Reassertion of Representations and Warranties, No Default. Each Borrower
hereby represents that on and as of the date hereof and after giving effect to this
Amendment (a) all of the representations and warranties contained in the Credit Agreement
are true, correct and complete in all material respects as of the date hereof as though made
on and as of such date, except for changes permitted by the terms of the Credit Agreement
and except for representations and warranties made as of a specific earlier date, which
shall be true and correct in all material respects as of such earlier date, and (b) there
will exist no Default or Event of Default under the Credit Agreement as amended by this
Amendment on such date which has not been waived by the Banks.
5.2 Authority, No Conflict, No Consent Required. Each Borrower represents and
warrants that such Borrower has the power and legal right and authority to enter into this
Amendment, the Pledge Agreement Amendment, the Security Agreement Amendment, the Joinder
Agreement (Credit Agreement), the Joinder Agreement (Security Agreement) and any other
instrument or agreement executed by such Borrower in connection with this Amendment (the
“Amendment Documents”) and has duly authorized as appropriate the execution and
delivery of the Amendment Documents and other agreements and documents executed and
delivered by such Borrower in connection herewith or therewith by proper corporate action,
and none of the Amendment Documents nor the agreements contained herein or therein
contravenes or constitutes a default under any agreement, instrument or indenture to which
such Borrower is a party or a signatory or a provision of such Borrower’s Certificate of
Incorporation, Bylaws or any other agreement or requirement of law, or result in the
imposition of any Lien on any of its property under any agreement binding on or applicable
to such Borrower or any of its property except, if any, in favor of the Banks. Each
Borrower represents and warrants that no consent, approval or authorization of or
registration or declaration with any Person, including but not limited to any governmental
authority, is required in connection with the execution and delivery by such Borrower of the
Amendment Documents or other agreements and documents executed and delivered by such
Borrower in connection therewith or the performance of obligations of such Borrower therein
described, except
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for those which such Borrower has obtained or provided and as to which
such Borrower has delivered certified copies of documents evidencing each such action to the
Banks.
5.3 No Adverse Claim. Each Borrower warrants, acknowledges and agrees that no
events have taken place and no circumstances exist at the date hereof which would give such
Borrower a basis to assert a defense, offset or counterclaim to any claim of the Banks with
respect to the Obligations.
Section 6. Limited Purpose Consents. Notwithstanding anything contained herein, the
Consents (i) are limited consents and waivers, (ii) are effective only with respect to the specific
transactions described in this Amendment for the specific instance and the specific purpose for
which they are given, (iii) shall not be effective for any other purpose or transaction, and
(iv) except as expressly set forth in Section 3 and subject to Section 4, do not constitute an
amendment or basis for a subsequent waiver of any of the provisions of the Credit Agreement.
Except as expressly provided in Section 3 and subject to Section 4, (a) all of the terms and
conditions of the Credit Agreement remain in full force and effect and none of such terms and
conditions are, or shall be construed as, otherwise amended or modified, and (b) nothing in this
Amendment shall constitute a waiver by the Banks of any Default or Event of Default, or of any
right, power or remedy available to the Banks under the Credit Agreement or any other Loan
Document, whether any such defaults, rights, powers or remedies presently exist or arise in the
future.
Section 7. Affirmation of Credit Agreement, Further References, Affirmation of Security
Interest. The Banks and the Borrowers each acknowledge and affirm that the Credit Agreement,
as hereby amended, is hereby ratified and confirmed in all respects and all terms, conditions and
provisions of the Credit Agreement, except as amended by this Amendment, shall remain unmodified
and in full force and effect. All references in any document or instrument to the Credit Agreement
are hereby amended and shall refer to the Credit Agreement as amended by this Amendment. Each
Borrower confirms to the Banks that the Obligations are and continue to be secured by the security
interest granted by the Borrowers in favor of the Banks under the Security Documents, and all of
the terms, conditions, provisions, agreements, requirements, promises, obligations, duties,
covenants and representations of the Borrowers under such documents and any and all other documents
and agreements entered into with respect to the obligations under the Credit Agreement are
incorporated herein by reference and are hereby ratified and affirmed in all respects by the
Borrowers.
Section 8. Merger and Integration, Superseding Effect. This Amendment, from and after
the date hereof, embodies the entire agreement and understanding between the parties hereto and
supersedes and has merged into this Amendment all prior oral and written agreements on the same
subjects by and between the parties hereto with the effect that this Amendment shall control with
respect to the specific subjects hereof and thereof.
Section 9. Severability. Whenever possible, each provision of this Amendment and the
other Amendment Documents and any other statement, instrument or transaction contemplated hereby or
thereby or relating hereto or thereto shall be interpreted in such manner as to be effective, valid
and enforceable under the applicable law of any jurisdiction, but, if any
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provision of this Amendment, the other Amendment Documents or any other statement, instrument
or transaction contemplated hereby or thereby or relating hereto or thereto shall be held to be
prohibited, invalid or unenforceable under the applicable law, such provision shall be ineffective
in such jurisdiction only to the extent of such prohibition, invalidity or unenforceability,
without invalidating or rendering unenforceable the remainder of such provision or the remaining
provisions of this Amendment, the other Amendment Documents or any other statement, instrument or
transaction contemplated hereby or thereby or relating hereto or thereto in such jurisdiction, or
affecting the effectiveness, validity or enforceability of such provision in any other
jurisdiction.
Section 10. Successors. The Amendment Documents shall be binding upon the Borrowers
and the Banks and their respective successors and assigns, and shall inure to the benefit of the
Borrowers and the Banks and the successors and assigns of the Banks.
Section 11. Legal Expenses. As provided in Section 9.2 of the Credit Agreement, the
Borrowers agree to pay or reimburse the Agent, upon execution of this Amendment, for all reasonable
out-of-pocket expenses paid or incurred by the Agent, including filing and recording costs and
fees, charges and disbursements of outside counsel to the Agent (determined on the basis of such
counsel’s generally applicable rates, which may be higher than the rates such counsel charges the
Agent in certain matters) and/or the allocated costs of in-house counsel incurred from time to
time, in connection with the Credit Agreement, including in connection with the negotiation,
preparation, execution, collection and enforcement of the Amendment Documents and all other
documents negotiated, prepared and executed in connection with the Amendment Documents, and in
enforcing the obligations of the Borrowers under the Amendment Documents, and to pay and save the
Banks harmless from all liability for, any Taxes or Other Taxes which may be payable with respect
to the execution or delivery of the Amendment Documents, which obligations of the Borrowers shall
survive any termination of the Credit Agreement.
Section 12. Headings. The headings of various sections of this Amendment have been
inserted for reference only and shall not be deemed to be a part of this Amendment.
Section 13. Counterparts. The Amendment Documents may be executed in several
counterparts as deemed necessary or convenient, each of which, when so executed, shall be deemed an
original, provided that all such counterparts shall be regarded as one and the same document, and
any party to the Amendment Documents may execute any such agreement by executing a counterpart of
such agreement. Signature pages delivered by facsimile or other electronic transmission (including
by email in .pdf format) shall be considered original signatures hereto, all of which shall be
equally valid.
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Section 14. Governing Law. THE AMENDMENT DOCUMENTS SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
[The next page is the signature page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date and year first above written.
| XXXXX MEDIA COMPANY, as a Borrower and as Borrowers’ Agent |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx | ||||
| Executive Vice President and Chief Financial Officer |
||||
| XXXXX FINANCE COMPANY XXXXX PUBLISHING COMPANY XXXXX PUBLISHING FINANCE COMPANY XXXX COMPANY LONG ISLAND BUSINESS NEWS, INC. DAILY JOURNAL OF COMMERCE, INC. LAWYER’S WEEKLY, INC. LEGAL LEDGER, INC. THE JOURNAL RECORD PUBLISHING CO. DAILY REPORTER PUBLISHING COMPANY NEW ORLEANS PUBLISHING GROUP, INC. NOPG, L.L.C. WISCONSIN PUBLISHING COMPANY LEGAL COM OF DELAWARE, INC. MISSOURI LAWYERS MEDIA, INC. THE DAILY RECORD COMPANY IDAHO BUSINESS REVIEW, INC. FINANCE AND COMMERCE, INC. COUNSEL PRESS, LLC ARIZONA NEWS SERVICE, LLC XXXXX DLN, LLC XXXXX APC LLC AMERICAN PROCESSING COMPANY, LLC |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx | ||||
| Vice President | ||||
S-1
| U.S. BANK NATIONAL ASSOCIATION, as Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, | ||||
| Senior Vice President | ||||
| U.S. BANK NATIONAL ASSOCIATION, as a Bank |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx, | ||||
| Senior Vice President | ||||
S-2
| LASALLE BANK NATIONAL ASSOCIATION | ||||||
| By: | Unknown | |||||
| Name: | ||||||
| Title: | ||||||
S-3
| ASSOCIATED BANK, NATIONAL ASSOCIATION | ||||||
| By: | Unknown | |||||
| Name: | ||||||
| Title: | ||||||
S-4
| BANK OF THE WEST | ||||||
| By: | Unknown | |||||
| Name: | ||||||
| Title: | ||||||
S-5
| COMERICA BANK | ||||||
| By: | Unknown | |||||
| Name: | ||||||
| Title: | ||||||
S-6
| COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH | ||||||
| By: | Unknown | |||||
| Name: | ||||||
| Title: | ||||||
| By: | Unknown | |||||
| Name: | ||||||
| Title: | ||||||
S-7
| KEYBANK NATIONAL ASSOCIATION | ||||||
| By: | Unknown | |||||
| Name: | ||||||
| Title: | ||||||
S-8
SCHEDULES |
||
Schedule 4.18
|
Subsidiaries | |
Schedule 6.8
|
Affiliate Transactions | |
Schedule 6.14
|
Liens | |
EXHIBITS |
||
Exhibit A
|
Request Letter | |
Exhibit B
|
APC LLC Amendment No. 4 | |
Exhibit C
|
Third Amendment to Pledge Agreement (Xxxxx APC) | |
Exhibit D
|
Third Amendment to Security Agreement (APC) | |
Exhibit E
|
APC Side Letter Amendment | |
Exhibit F
|
Joinder Agreement (Credit Agreement) | |
Exhibit G
|
Joinder Agreement (Security Agreement) |
