FOURTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
10.5
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of September 8,
2005, is by and among MediaNews Group, Inc. (the “Borrower”), the guarantors identified on
the signature pages hereto (the “Guarantors”), the Lenders parties hereto and Bank of
America, N.A., as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).
RECITALS
A. The Borrower, the Guarantors, the Lenders, the Administrative Agent, the Syndication Agent
and the Documentation Agent entered into that certain Credit Agreement dated as of December 30,
2003, as amended pursuant a First Amendment to Credit Agreement dated as of January 20, 2004, as
further amended pursuant a Second Amendment to Credit Agreement dated as of April 16, 2004, and as
further amended pursuant a Third Amendment to Credit Agreement dated as of August 30, 2004 (as
previously amended, the “Existing Credit Agreement”). Capitalized terms used herein which
are not defined herein and which are defined in the Existing Credit Agreement shall have the same
meanings as therein defined.
B. The Borrower desires to refinance all outstanding Tranche C Term Loans under the Existing
Credit Agreement with proceeds from (i) Tranche B Term Loans and (ii) Revolving Loans;
C. Each Lender holding Tranche C Term Loans who executes and delivers this Amendment shall be
deemed, upon the effectiveness of this Amendment, to have converted its Tranche C Term Loan
Commitment and Tranche C Term Loans into a Tranche B Term Loan Commitment and Tranche B Term Loans
in the same aggregate principal amount as such Lender’s outstanding Tranche C Term Loan Commitment
and Tranche C Term Loans, respectively, as in effect as of the date hereof;
D. Each Person who executes and delivers this Amendment as a lender other than pursuant to an
exchange of Tranche C Term Loans described in Section 2.01(b) of the Existing Credit
Agreement (as amended hereby), will make Tranche B Term Loans to the Borrower on the date hereof in
an aggregate principal amount equal to the amount set forth opposite its name on Schedule
2.01 to the Existing Credit Agreement (as amended hereby) under the caption “Tranche B Term
Loan Commitment”, the proceeds of which will be used by the Borrower, together with the Converted
Tranche C Term Loans (as defined herein), to refinance in full the outstanding principal amount of
Tranche C Term Loans;
E. The Borrower has requested that the Lenders amend the Existing Credit Agreement (i) to
effect the changes described above and (ii) to make other amendments as described herein; and
F. The parties hereto have agreed to amend the Existing Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
AGREEMENT
1. Amendments to Existing Credit Agreement. Effective upon satisfaction of the
conditions precedent set forth in Section 2 below, the Existing Credit Agreement is hereby
amended as follows:
(A) The following definitions appearing in Section 1.01 of the Existing Credit
Agreement are hereby amended and restated to read as follows:
“Acquisition”, by any Person, means the acquisition by such Person (to the
extent not constituting a capital expenditure), in a single transaction or in a series of
related transactions, of (i) Capital Stock of another Person if, as a result of such
acquisition, such Person becomes a Restricted Subsidiary, (ii) at least a majority of the
Property of another Person, or (iii) at least a majority of a business unit of another
Person, in each case, whether or not involving a merger or consolidation with such other
Person and whether for cash, property, services, assumption of Indebtedness, securities or
otherwise.
“Applicable Rate” means the following percentages per annum, based upon the
Consolidated Total Leverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 7.01(c):
| Eurodollar Loans | Base Rate Loans | |||||||||||||||||
| Revolving | Revolving | |||||||||||||||||
| Loans and | Loans and | |||||||||||||||||
| Consolidated | Tranche A | Tranche | Tranche | Tranche A | Tranche | Tranche C | ||||||||||||
| Pricing | Total Leverage | Commitment | Letters of | Term | B Term | C Term | Term | B Term | Term | |||||||||
| Tier | Ratio | Fee | Credit | Loan | Loan | Loan | Loan | Loan | Loan | |||||||||
| 1 | Less than 3.5x |
0.25% | 0.75% | 0.75% | 1.25% | n/a | 0.00% | 0.25% | n/a | |||||||||
| 2 | Less than 4.5 to
1.0 but equal to or
greater than 3.5 to
1.0 |
0.25% | 0.875% | 0.875% | 1.25% | n/a | 0.00% | 0.25% | n/a | |||||||||
| 3 | Equal to or greater
than 4.5 to 1.0 |
0.375% | 1.00% | 1.00% | 1.25% | n/a | 0.00% | 0.25% | n/a | |||||||||
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Total Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 7.01(c); provided, however, that if a
Compliance Certificate is not delivered when due in accordance with such Section,
then Pricing Tier 3 shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered and shall continue
to apply until the first Business Day immediately following the date such Compliance
Certificate is delivered, whereupon the Applicable Rate shall be adjusted based upon
the calculation of the Consolidated Total Leverage Ratio contained in such
Compliance Certificate.
“Consolidated Debt” means, at any time with respect to the Borrower and
its Restricted Subsidiaries on a consolidated basis, Indebtedness as of such time
minus cash and Cash Equivalents held at such time in excess of $2,000,000
(but, at any time after July 31, 2004, not more than $25,000,000 in the aggregate);
provided, however, that (a) the Indebtedness in respect of the
Airplane Debt, the Denver Synthetic Lease, the Salt Lake Printer Lease and the
California Guaranty shall be excluded from Consolidated Debt so long as no event of
default is continuing with respect to such Indebtedness (or, in the case
of the California Guaranty, with respect to the Indebtedness Guaranteed
thereby) and (b) the Denver Printer Debt shall be excluded from Consolidated Debt
prior to the completion of the Denver Printer Consolidation.
“Consolidated Operating Cash Flow” means, as of any date of
determination with respect to the Borrower and its Restricted Subsidiaries on a
consolidated basis, the following, with respect to the immediately preceding four
fiscal quarters of the Borrower
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for which the Required Financial Information has
been delivered: (A) revenues minus (B) the sum of (i) cost of sales, (ii)
management fees, (iii) regularly scheduled payments in respect of the Denver
Synthetic Lease and (iv) selling, general and administrative expenses (other than
non-cash expenses accrued under employee compensation and stock ownership plans and
post-retirement executive medical plans) for such period plus (C) dividends
or other distributions received in cash from any Person (other than a JOA or the
Salt Lake Printer Entity) not constituting a Restricted Subsidiary hereunder for
such period.
“Lenders” means each of the Persons identified as a “Lender” on the
signature pages hereto, any Person that becomes a Lender pursuant to Section
2.01(e) and their successors and assigns and, as the context requires, includes
the L/C Issuers and the Swingline Lender.
“Mandatorily Redeemable Stock” means, with respect to any Person, any
share of such Person’s Capital Stock to the extent that it is (a) redeemable,
payable or required to be purchased or otherwise retired or extinguished, or
convertible into any Indebtedness or other liability of such Person (i) at a fixed
or determinable date, whether by operation of a sinking fund or otherwise, (ii) at
the option of any Person other than such Person or (iii) upon the occurrence of a
condition not solely within the control of such Person, such as a redemption
required to be made out of future earnings or (b) convertible into Mandatorily
Redeemable Stock, but excluding (i) Qualified Capital Stock and (ii) any such
Capital Stock of such Person so long as the terms thereof and of any security,
instrument or other item of Indebtedness into which such Capital Stock may be
converted do not require the payment, redemption, purchase or other retirement of
any portion thereof, or do not provide for, or could not otherwise result in, the
acceleration of any payment required to be made in respect thereof prior to a date
that is 91 days after the Maturity Date (or such earlier date as all amounts under
this Agreement have been paid in full and the Commitments have terminated);
provided, however, that any class of Capital Stock of such Person
that, by its terms, authorizes such Person to satisfy in full its obligations upon
maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof
or otherwise by the delivery of Capital Stock (other than Mandatorily Redeemable
Stock), and that is not convertible, puttable or exchangeable for Mandatorily
Redeemable Stock or Indebtedness, will not be deemed to be Mandatorily Redeemable
Stock so long as such Person satisfies its obligations with respect thereto solely
by the delivery of Capital Stock (other than Mandatorily Redeemable Stock);
provided further, however, that any Capital Stock that would
not constitute Mandatorily Redeemable Stock but for provisions thereof giving
holders thereof (or the holders of any security into or for which such Capital Stock
is convertible, exchangeable or exercisable) the right to require the Borrower or
any Restricted Subsidiary to redeem such Capital Stock upon the occurrence of a
change of control occurring prior to the 91st day following the Maturity Date shall
not constitute Mandatorily Redeemable Stock so long as the redemption of such
Capital Stock is contractually subordinated to the prior payment in full of the
Obligations in a manner reasonably satisfactory to the Administrative Agent.
“Permitted Investments” means:
(i) Investments in cash or Cash Equivalents;
(ii) Money Market Investments;
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(iii) Investments in any Person that is a Loan Party (other than a
Limited Guarantor) prior to giving effect to such Investment;
(iv) to the extent not constituting an Acquisition, Investments in any
Person that results in such Person becoming a Loan Party (other than a
Limited Guarantor), provided that, prior to the making of
any such Investment exceeding $10,000,000, the Borrower shall have provided
to the Administrative Agent (a) a certificate of a Responsible Officer of
the Borrower stating that (1) the representations and warranties in
Article VI are true and correct in all material respects (except to
the extent that such representations and warranties specifically refer to an
earlier date, in which case they were true and correct in all material
respects as of such earlier date) both immediately before and after giving
effect to such Investment and (2) no Default shall have occurred and be
continuing both immediately before and after giving effect to such
Investment, and (b) a Pro Forma Compliance Certificate demonstrating that
the Borrower would be in compliance with Section 8.19 after giving
effect to such Investment on a Pro Forma Basis as of the most recent fiscal
quarter end with respect to which the Administrative Agent has received the
Required Financial Information;
(v) [Intentionally Omitted];
(vi) Investments consisting of (a) non-cash consideration received in
connection with any Voluntary Disposition pursuant to Section
8.06(d)(i) otherwise complying with the terms of this Agreement, (b)
Capital Stock, obligations or securities received in connection with any
Voluntary Disposition pursuant to Section 8.06(d)(ii) otherwise
complying with the terms of this Agreement or (c) non-cash consideration
received in connection with any exercise of a Permitted Option in respect of
the Salt Lake Printer Entity or the K-T Printer Assets pursuant to
Section 8.06(e) otherwise complying with the terms of this
Agreement;
(vii) Existing Investments;
(viii) Capital Stock, obligations or securities received in settlement
of debts created in the ordinary course of business and owing to the
Borrower or any Restricted Subsidiary or in satisfaction of judgments
including under a plan of reorganization or other bankruptcy proceeding;
(ix) loans and advances to directors, employees and officers of the
Borrower and its Restricted Subsidiaries for bona fide business purposes not
in excess of $10,000,000 in the aggregate at any one time outstanding;
(x) Permitted Acquisitions;
(xi) subject to compliance with Section 8.06(b), the Voluntary
Disposition of assets of K-T or the Borrower or a Restricted Subsidiary to
the Salt Lake JOA or the New Salt Lake JOA (or a Subsidiary thereof) and the
Voluntary Disposition of the SLC Printing Press Assets by the Borrower or a
Restricted Subsidiary to the Salt Lake Printer Entity;
(xii) subject to compliance with Section 8.06(c), any Voluntary
Disposition of all or substantially all of the Capital Stock or assets of
Los
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Angeles Daily News or Long Beach Publishing Company to the California
Partnership (or a Subsidiary thereof);
(xiii) Investments in Limited Guarantors, Restricted Subsidiaries that
are not Guarantors, XXXx and the Salt Lake Printer Entity to the extent that
such Investments are either (a) used to make capital expenditures that are
included in calculations of Consolidated Capital Expenditures for all
applicable periods, (b) financed with the proceeds of Indebtedness as
described in clause (b) of the definition of “Consolidated Capital
Expenditures” set forth in this Section 1.01 or (c) made with the
Net Cash Proceeds of any JOA Asset Disposition in the JOA (or a Subsidiary
thereof) making the JOA Asset Disposition;
(xiv) other Investments (other than Investments specified in clauses
(i) through (xiii) above and clause (xv) below) in an aggregate amount not
exceeding $50,000,000 during any fiscal year, provided that,
prior to the making of any such Investment exceeding $10,000,000, the
Borrower shall have provided to the Administrative Agent (a) a certificate
of a Responsible Officer of the Borrower stating that (1) the
representations and warranties in Article VI are true and correct in
all material respects (except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they were
true and correct in all material respects as of such earlier date) both
immediately before and after giving effect to such Investment and (2) no
Default shall have occurred and be continuing both immediately before and
after giving effect to such Investment (including a Default under
Section 8.22), and (b) a Pro Forma Compliance Certificate
demonstrating that the Borrower would be in compliance with Section
8.19 after giving effect to such Investment on a Pro Forma Basis as of
the most recent fiscal quarter end with respect to which the Administrative
Agent has received the Required Financial Information; and
(xv) Investments by the Borrower and its Restricted Subsidiaries during
the Borrower’s fiscal year ended June 30, 2006 of (A) up to $24,000,000 in
cash in a partnership or joint venture to be formed through the contribution
of publications held by Eastern Colorado Publishing Company, and (B) up to
$26,000,000 in a 5% limited partnership interest in Detroit Newspaper
Partnership, L.P., a Delaware limited partnership, provided
that, prior to the making of the Investment described in clause (A),
the Borrower shall have provided to the Administrative Agent (a) a
certificate of a Responsible Officer of the Borrower stating that (1) the
representations and warranties in Article VI are true and correct in
all material respects (except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they were
true and correct in all material respects as of such earlier date) both
immediately before and after giving effect to such Investment and (2) no
Default
shall have occurred and be continuing both immediately before and after
giving effect to such Investment (including a Default under Section
8.22), and (b) a Pro Forma Compliance Certificate demonstrating that the
Borrower would be in compliance with Section 8.19 after giving
effect to such Investment on a Pro Forma Basis as of the most recent fiscal
quarter end with respect to which the Administrative Agent has received the
Required Financial Information.
“Permitted Restrictive Covenant” means (a) any covenant or restriction
contained in any Loan Document; (b) any covenant or restriction contained in the
1999 Indenture, the 2003 Indenture, the Partnership Agreement or the Denver
Acquisition Documents;
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(c) any covenant or restriction binding upon any Person at
the time such Person becomes a Restricted Subsidiary of the Borrower if the same is
not created in contemplation thereof; (d) any covenant or restriction of the type
contained in Section 8.03 that is contained in any Contract evidencing or
providing for the creation of or concerning Purchase Money Indebtedness so long as
such covenant or restriction is limited to the property or asset purchased therewith
and to fixed improvements thereafter erected on such property or asset; (e) any
covenant or restriction described in Schedule 8.11, but only to the extent
such covenant or restriction is there identified by specific reference to the
provision of the Contract in which such covenant or restriction is contained; (f)
any covenant, encumbrance or restriction existing under or by reason of (i)
applicable Law, (ii) customary non-assignment provisions of any lease or other
Contract governing a leasehold interest of the Borrower or a Restricted Subsidiary,
(iii) except in respect of any Guarantor other than a Limited Guarantor, customary
restrictions on the payment or making of dividends, distributions, transactions,
loans, advances, investments and transfers to, in or with partners and other equity
holders and their affiliates contained in agreements governing XXXx, shareholder
agreements with minority shareholders and/or the Organizational Documents of such
Person, provided that, in the case of restrictions on dividends and
distributions of income, such restrictions are limited to requiring that certain
minimum levels of capital be maintained for working capital purposes and to meet
expenses, (iv) customary limitations on (A) the transferability of Investments in,
and (B) the granting of Liens upon Investments in and properties of, XXXx, Limited
Guarantors and Persons (including Subsidiaries) that are not Guarantors contained in
agreements governing such Investments, shareholder agreements relating to such
Investments and/or the Organizational Documents of such Persons, (v) customary
restrictions on transfer of property or assets subject to a sale or option agreement
entered into in compliance with this Agreement and (vi) restrictions on assignment
of assets arising from Liens on such assets that are permitted under this Agreement;
(g) in respect of any JOA, any covenant or restriction applicable to such JOA that
is described on Schedule 8.22; or (h) any covenant or restriction that (i)
is not more burdensome in any material respect than an existing Permitted
Restrictive Covenant that is such by virtue of clause (b), (c), (d), (e), (f) or (g)
of this definition, (ii) is contained in a Contract constituting a renewal,
extension or replacement of the Contract in which such existing Permitted
Restrictive Covenant is contained and (iii) is binding only on the Person or Persons
bound by such existing Permitted Restrictive Covenant.
“Pro Forma Basis” means, for purposes of calculating (utilizing the
principles set forth in Section 1.03(c)) compliance with each of the
financial covenants set forth in Section 8.19 in respect of a proposed
transaction, that such transaction shall be deemed to have occurred as of the first
day of the four fiscal-quarter period ending as of the most recent fiscal quarter
end preceding the date of such transaction with respect to which the
Administrative Agent has received the Required Financial Information. As used
herein, “transaction” shall mean (a) any incurrence or assumption of Indebtedness as
referred to in Section 8.01(h), (b) any Restricted Payment referred to in
Section 8.04(g), (c) any Acquisition or any Investment of the type referred
to in clause (iii), (iv), (xiv) or (xv) of the definition of “Permitted Investment”
set forth in this Section 1.01, (d) any redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary or any redesignation of a Restricted
Subsidiary as an Unrestricted Subsidiary (in each case, as referred to in the
definition of “Restricted Subsidiary”), (e) any Voluntary Disposition as referred to
in Section 8.06(b), 8.06(c) or 8.06(d) or (f) any exercise
of a Permitted Option in respect of the Salt Lake Printer Entity. In connection
with any calculation of the financial covenants set forth in Section 8.19
upon giving effect to a transaction on a Pro Forma Basis:
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(i) for purposes of any such calculation in respect of any incurrence
or assumption of Indebtedness as referred to in Section 8.01(h), any
Indebtedness which is retired in connection with such incurrence or
assumption shall be excluded and deemed to have been retired as of the first
day of the applicable period;
(ii) for purposes of any such calculation in respect of any Acquisition
or any Investment of the type referred to in clause (iii), (iv), (xiv) or
(xv) of the definition of “Permitted Investment” set forth in this
Section 1.01 or any redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary (as referred to in the definition of “Restricted
Subsidiary”), (A) any Indebtedness incurred or assumed by the Borrower or
any Restricted Subsidiary (including the Person or assets acquired or the
redesignated Subsidiary) in connection with such transaction and any
Indebtedness of the Person or assets acquired (or of the redesignated
Subsidiary) which is not retired in connection with such transaction (1)
shall be deemed to have been incurred as of the first day of the applicable
period and (2) if such Indebtedness has a floating or formula rate, shall
have an implied rate of interest for the applicable period for purposes of
this definition determined by utilizing the rate which is or would be in
effect with respect to such Indebtedness as at the relevant date of
determination, (B) income statement items (whether positive or negative)
attributable to the Person or Property acquired (or to the redesignated
Subsidiary) shall be included beginning as of the first day of the
applicable period and (C) pro forma adjustments reflecting costs savings may
be included to the extent that (1) such adjustments would give effect to
events that are (x) directly attributable to such transaction and (y)
expected to have a continuing impact on the Borrower and its Restricted
Subsidiaries, (2) such adjustments are approved by the Administrative Agent
and (3) the aggregate amount of such pro forma adjustments do not exceed 10%
of Consolidated Operating Cash Flow (as calculated on a Pro Forma Basis,
without taking into account this clause (C), after giving effect to such
transaction) at such time; and
(iii) for purposes of any such calculation in respect of any
Voluntary Disposition as referred to in Section 8.06(b),
8.06(c) or 8.06(d) or any redesignation of a Restricted
Subsidiary as an Unrestricted Subsidiary (as referred to in the definition
of “Restricted Subsidiary”) or any exercise of a Permitted Option in respect
of the Salt Lake Printer Entity, (A) income statement items (whether
positive or negative) attributable to the Person or assets disposed
of (or to the redesignated Subsidiary) shall be excluded and (B) any
Indebtedness which is retired in connection with such transaction shall be
excluded and deemed to have been retired as of the first day of the
applicable period.
“Pro Forma Compliance Certificate” means a certificate of a Responsible
Officer of the Borrower delivered to the Administrative Agent in connection with (a)
any incurrence, assumption or retirement of Indebtedness as referred to in
Section 8.01(h), (b) any Restricted Payment as referred to in Section
8.04(g), (c) any Acquisition or any Investment of the type referred to in clause
(iii), (iv), (xiv) or (xv) of the definition of “Permitted Investment” set forth in
this Section 1.01, (d) any redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary or any redesignation of a Restricted Subsidiary as an
Unrestricted Subsidiary (in each case, as referred to in the definition of
“Restricted Subsidiary”), (e) any Voluntary Disposition as referred to in
Section 8.06(b),
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8.06(c) or 8.06(d) or (f) any exercise of a
Permitted Option in respect of the Salt Lake Printer Entity, as applicable, and
containing reasonably detailed calculations, upon giving effect to the applicable
transaction on a Pro Forma Basis, of each of the financial covenants in Section
8.19 as of the most recent fiscal quarter end preceding the date of the
applicable transaction with respect to which the Administrative Agent shall have
received the Required Financial Information.
“Restricted Payment” means (a) any payment by the Borrower or any
Restricted Subsidiary with respect to or on account of any of such Person’s Capital
Stock, including any dividend or other distribution on, or any payment of interest
on or principal of, any such Capital Stock, (b) any payment by the Borrower or any
Restricted Subsidiary on account of the principal of or interest or premium, if any,
on any Subordinated Debt (other than any regularly scheduled payment of interest
thereon and any repayment of principal thereof upon the stated maturity thereof
(subject to the subordination provisions applicable thereto)), (c) any payment by
the Borrower or any Restricted Subsidiary on account of any purchase, redemption,
retirement, exchange, defeasance or conversion of, or on account of any claim
relating to or arising out of the offer, sale or purchase of, the Borrower’s Capital
Stock or any Subordinated Debt or (d) any payment by the Borrower or any Restricted
Subsidiary of premiums of life insurance policies on Permitted Holders as to which
the Borrower or a Subsidiary is the beneficiary; provided, however,
that the term “Restricted Payment” shall not include (i) the Refinancing of any
Subordinated Debt with the proceeds of additional Subordinated Debt to the extent
that (A) such Refinancing Subordinated Debt is subordinated on terms and conditions
no less favorable in any material respect to the Lenders than the terms contained in
the Subordinated Debt being Refinanced, (B) such Refinancing Subordinated Debt is
binding only on the obligor or obligors under the Subordinated Debt so Refinanced,
(C) the principal amount of the Refinancing Subordinated Debt does not exceed the
principal amount of the Subordinated Debt so Refinanced plus any premium,
“make-whole” amounts and penalties actually paid on the Subordinated Debt being
Refinanced and all reasonable fees and expenses payable in connection with such
Refinancing, (D) such Refinancing Subordinated Debt bears interest at a rate per
annum not exceeding the rate borne by the Subordinated Debt so Refinanced except for
any increase that is commercially reasonable at the time of such increase and (E)
such Refinancing Subordinated Debt either (1) does not mature earlier, or amortize
(whether by scheduled or mandatory prepayment or commitment reduction, or otherwise)
more rapidly, than the Subordinated Debt so Refinanced or (2) does not mature, or
require any amortization payments to be made, prior to the date that occurs 91 days
after the Maturity Date and (ii) the repayment of the 1999 Subordinated Notes on or
before
August 1, 2004 in an amount up to the amount of the net cash proceeds received
by the Borrower from the issuance of additional Subordinated Debt pursuant to
Section 8.01(i). For the purposes of this definition, a “payment” shall
include the transfer of any asset or the incurrence of any Indebtedness or other
liability (the amount of any such payment to be the fair market value of such asset
or the amount of such obligation, respectively) but shall not include the issuance
of any Capital Stock of the Borrower or any Restricted Subsidiary other than
Mandatorily Redeemable Stock that would constitute Indebtedness in accordance with
the definition thereof.
“Revolving Commitment” means, as to each Lender, its obligation to (a)
make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swingline
Loans, in an aggregate principal amount at any one time outstanding not to exceed
the amount set forth opposite such Lender’s name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto or in
any documentation executed by such
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Lender pursuant to Section 2.01(e), as
applicable, as such amount may be adjusted from time to time in accordance with this
Agreement.
“Tranche A Term Loan Commitment” means, as to each Lender, its
obligation to make its portion of the Tranche A Term Loan to the Borrower pursuant
to Section 2.01(c), in the principal amount set forth opposite such Lender’s
name on Schedule 2.01A or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto or in any documentation executed by such Lender
pursuant to Section 2.01(e), as applicable. The aggregate principal amount
of the Tranche A Term Loan Commitments of all of the Lenders as in effect on the
Amendment No. 4 Effective Date is One Hundred Million Dollars ($100,000,000).
“Tranche B Term Loan Commitment” means, as to each Lender (a) its
obligation to make its portion of the Tranche B Term Loan to the Borrower pursuant
to Section 2.01(b), in the principal amount set forth opposite such Lender’s
name on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto or in any documentation executed by such Lender
pursuant to Section 2.01(e), as applicable and/or (b) its election pursuant
to Section 2.01(b) to exchange all or any portion of its outstanding Tranche
C Term Loans for a like principal amount of Tranche B Term Loans. The aggregate
principal amount of the Tranche B Term Loan Commitments of all of the Lenders as in
effect on the Amendment No. 4 Effective Date (after giving effect to Amendment No.
4) is One Hundred Forty-Seven Million Two Hundred Sixty-Two Thousand Five Hundred
Dollars ($147,262,500).
“Tranche C Term Loan Commitment” means, as to each Lender, its
obligation to make its portion of the Tranche C Term Loan to the Borrower pursuant
to Section 2.01(d), in the principal amount set forth opposite such Lender’s
name on Schedule 2.01A or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto or in any documentation executed by such Lender
pursuant to Section 2.01(e), as applicable. The aggregate principal amount
of the Tranche C Term Loan Commitments of all of the Lenders as in effect on the
Amendment No. 4 Effective Date (after giving effect to Amendment No. 4) is Zero
Dollars ($0).
(B) The definition of “Master Intercompany Note” appearing in Section 1.01 of
the Existing Credit Agreement is hereby deleted in its entirety.
(C) The following new definitions are hereby added to Section 1.01 of the
Existing Credit Agreement to read as follows:
“Amendment No. 4” means the Fourth Amendment to Credit Agreement dated
as of September 8, 2005 by and among the Borrower, the Guarantors, the Lenders
parties thereto and the Administrative Agent.
“Amendment No. 4 Effective Date” means September 8, 2005.
“Converted Tranche C Term Loan” has the meaning specified in
Section 2.01(b).
“Denver Printer Debt” means Indebtedness of DNA incurred in connection
with the Denver Printer Consolidation to the extent that (a) such Indebtedness is
non-recourse to the Loan Parties and (b) the principal amount of such Indebtedness
that is attributable to the Borrower pursuant to Section 1.03(d) does not
exceed $75,000,000.
9
“Qualified Capital Stock” means (i) Capital Stock of the Borrower that
otherwise constitutes Mandatorily Redeemable Stock (other than any such Capital
Stock that constitutes Mandatorily Redeemable Stock because it is convertible into
Indebtedness of the issuer) to the extent that the redemption, purchase or other
retirement thereof is, at the time that the Borrower may be required to effect such
redemption, purchase or other retirement, permitted under Section 8.04
(without regard to the occurrence of a Default) and (ii) Capital Stock of a
Restricted Subsidiary that otherwise constitutes Mandatorily Redeemable Stock (other
than any such Capital Stock that constitutes Mandatorily Redeemable Stock because it
is convertible into Indebtedness of the issuer) to the extent that the redemption,
purchase or other retirement thereof is, at the time that the Borrower or a
Restricted Subsidiary may be required to effect such redemption, purchase or other
retirement, a Permitted Investment (without regard to the occurrence of a Default or
the ability of the Borrower to certify that the representations and warranties in
Article VI are true and correct in all material respects).
“TNMP” means Texas–New Mexico Newspapers Partnership, a Delaware
general partnership, at such time as it becomes a Restricted Subsidiary.
(D) Section 1.03(c) of the Existing Credit Agreement is hereby amended and
restated to read as follows:
(c) Calculations with Respect to Certain Transactions. Notwithstanding
the above but subject to subsection (d) below, the parties hereto acknowledge and
agree that, for purposes of all calculations made under the financial covenants set
forth in Section 8.19 (including without limitation for purposes of the
definitions of “Applicable Rate” and “Pro Forma Basis” set forth in Section
1.01), (i) after consummation of any Voluntary Disposition, any redesignation of
a Restricted Subsidiary as an Unrestricted Subsidiary (as referred to in the
definition of “Restricted Subsidiary”) or any exercise of a Permitted Option in
respect of the Salt Lake Printer Entity, (A) income statement items (whether
positive or negative) and capital expenditures attributable to the assets disposed
of (or the redesignated Subsidiary) shall be excluded and (B) Indebtedness which is
retired shall be excluded and deemed to have been retired as of the first day of the
applicable period, (ii) after consummation of any Permitted Investment described in
clauses (iii), (iv), (vi), (x), (xi), (xii), (xiv) and (xv) of the definition
thereof or any redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary (as referred to in
the definition of “Restricted Subsidiary”), (A) income statement items (whether
positive or negative) and capital expenditures (other than capital expenditures that
are non-recurring and not in the ordinary course of business) attributable to the
Permitted Investment or the redesignated Subsidiary shall, to the extent not
otherwise included in such income statement items for the Borrower and its
Restricted Subsidiaries in accordance with GAAP or in accordance with any defined
terms set forth in Section 1.01, be included to the extent relating to any
period applicable in such calculations, (B) to the extent not retired in connection
with such transaction, Indebtedness attributable hereunder to any Permitted
Investment or the redesignated Subsidiary shall be deemed to have been incurred as
of the first day of the applicable period and (C) pro forma adjustments reflecting
costs savings may be included to the extent that (1) such adjustments would give
effect to events that are (x) directly attributable to such transaction or (y)
expected to have a continuing impact on the Borrower and its Restricted
Subsidiaries, (2) such adjustments have been approved by the Administrative Agent
and (3) the aggregate amount of such pro forma adjustments do not exceed 10% of
Consolidated Operating Cash Flow (as calculated on a Pro Forma Basis, without taking
into account this clause (C), after giving effect to such transaction) at such time
and
10
(iii) upon completion of the Denver Printer Consolidation and/or the Salt Lake
Printer Build-Out, pro forma adjustments reflecting costs savings may be included to
the extent that (A) such adjustments would give effect to events that are (1)
directly attributable to either such consolidation or facility or (2) expected to
have a continuing impact on the Borrower and its Restricted Subsidiaries and (B)
such adjustments have been approved by the Administrative Agent.
(E) Section 2.01 of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(a) Revolving Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a “Revolving
Loan”) to the Borrower in Dollars from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of such Lender’s Revolving Commitment; provided, however,
that after giving effect to any Borrowing of Revolving Loans, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and
(ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender,
plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of
all Swingline Loans shall not exceed such Lender’s Revolving Commitment. Within the
limits of each Lender’s Revolving Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01, prepay
under Section 2.05, and reborrow under this Section 2.01. Revolving
Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
(b) Tranche B Term Loan. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make its portion of a term loan (or pursuant
to the immediately succeeding sentence, elects to convert all of such Lender’s
Tranche C Term Loans into a like portion of a new term loan) (such loans and
conversions, collectively, the “Tranche B Term Loan”) to the Borrower on the
Amendment No. 4 Effective Date (or on the effective date of any increase in the
aggregate Tranche B Term Loan Commitments pursuant to Section 2.01(e), as
applicable) in an amount not to exceed such Lender’s Tranche B Term Loan Commitment.
In connection with the making of the Tranche B Term Loan pursuant to the
immediately preceding sentence, any Lender
holding Tranche C Term Loans may elect to fund its Pro Rata Share of the
Tranche B Term Loan equal to the outstanding principal amount of its Tranche C Term
Loans by converting all of the outstanding principal amount of the Tranche C Term
Loans of such Lender into a Tranche B Term Loan (each such Tranche C Term Loan that
is to be converted, a “Converted Tranche C Term Loan”). Delivery of a
counterpart signature to Amendment No. 4 by a Lender holding Tranche C Term Loans,
with no other notice to the Administrative Agent to the contrary, shall be deemed to
be an election by such Lender to fund its Pro Rata Share of the Tranche B Term Loan
equal to the outstanding principal amount of its Tranche C Term Loans in the form of
a Converted Tranche C Term Loan. On the Amendment No. 4 Effective Date, the
Converted Tranche C Term Loans of all Lenders shall be converted for all purposes of
this Agreement into Tranche B Term Loans, and the Administrative Agent shall record
in the Register the aggregate amounts of Converted Tranche C Term Loans that have
been converted into Tranche B Term Loans. Without limitation of Section
2.01(e), amounts repaid on the Tranche B Term Loan after the Amendment No. 4
Effective Date may not be reborrowed. The Tranche B Term Loan may consist of Base
Rate Loans or Eurodollar Rate Loans, as further provided herein; provided,
however, unless otherwise agreed by the Administrative Agent and the
Borrower, all Borrowings made on the Amendment No. 4
11
Effective Date shall be made as
Base Rate Loans, and such Borrowings may not be converted into Eurodollar Rate Loans
until the tenth Business Day following the Amendment No. 4 Effective Date. The
Borrower irrevocably authorizes and directs the Administrative Agent to apply the
proceeds of the Tranche B Term Loan to refinance and replace the Tranche C Term
Loan.
(c) Tranche A Term Loan. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make its portion of a term loan (the
“Tranche A Term Loan”) to the Borrower in Dollars on the Amendment No. 3
Effective Date (or on the effective date of any increase in the aggregate Tranche A
Term Loan Commitments pursuant to Section 2.01(e), as applicable) in an
amount not to exceed such Lender’s Tranche A Term Loan Commitment. Without
limitation of Section 2.01(e), amounts repaid on the Tranche A Term Loan may
not be reborrowed. The Tranche A Term Loan may consist of Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
(d) Tranche C Term Loan. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make its portion of a term loan (the
“Tranche C Term Loan”) to the Borrower in Dollars on on the effective date
of any increase in the aggregate Tranche C Term Loan Commitments pursuant to
Section 2.01(e) in an amount not to exceed such Lender’s Tranche C Term Loan
Commitment. Without limitation of Section 2.01(e), amounts repaid on the
Tranche C Term Loan after the Amendment No. 4 Effective Date may not be reborrowed.
The Tranche C Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.
(e) Increase in Commitments. The Borrower shall have the right, upon
at least fifteen (15) Business Days’ prior written notice to the Administrative
Agent, to increase the Aggregate Revolving Commitments, the aggregate Tranche A Term
Loan Commitments, the aggregate Tranche B Term Loan Commitments and/or the aggregate
Tranche C Term Loan Commitments by up to $200,000,000 in the aggregate for all such
increases, in one or more increases, at any time and from time to time,
subject, however, in any such case, to satisfaction of the following
conditions precedent:
(i) no Default has occurred and is continuing on the date on which such
increase is to become effective;
(ii) the representations and warranties set forth in Article VI
of this Agreement shall be true and correct in all material respects on and
as of the date on which such increase is to become effective (except to the
extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct in all material
respects as of such earlier date);
(iii) such increase shall be an integral multiple of $1,000,000 and
shall in no event be less than $10,000,000;
(iv) such requested increase shall only be effective upon receipt by
the Administrative Agent of (A) additional commitments in a corresponding
amount of such requested increase from either existing Lenders and/or one or
more other institutions that qualify as an Eligible Assignee (it being
understood and agreed that no existing Lender shall be required to provide
an additional commitment), (B) documentation from each institution providing
an additional commitment evidencing their commitment and their obligations
under this Agreement in form and substance acceptable to the Administrative
Agent and (C)
12
in the case of an increase in the Tranche C Term Loan
Commitments at such time when there are no Tranche C Term Loans outstanding,
an agreement among the Borrower and the Lenders and other institutions
providing the additional Tranche C Term Loan Commitments, in form and
substance acceptable to the Administrative Agent, as to the principal
amortization payments and Applicable Rates applicable to the Tranche C Term
Loans, which agreement shall be deemed to amend Section 2.07(e) and
the definition of Applicable Rate;
(v) the Administrative Agent shall have received all documents
(including resolutions of the board of directors of the Borrower and
opinions of counsel to the Borrower) it may reasonably request relating to
the corporate or other necessary authority for such increase in the
Aggregate Revolving Commitments, the aggregate Tranche A Term Loan
Commitments, the aggregate Tranche B Term Loan Commitments and/or the
aggregate Tranche C Term Loan Commitments, and any other matters relevant
thereto, all in form and substance reasonably satisfactory to the
Administrative Agent; and
(vi) if the reallocation, if any, of outstanding Loans among the
Lenders in connection with such increase results in the prepayment of
Eurodollar Rate Loans on a day which is not the last day of an Interest
Period with respect thereto, the Borrower shall have paid to each affected
Lender such amounts, if any, as may be required pursuant to Section
3.05.
(f) (i) Upon the effectiveness of any increase in the Aggregate Revolving
Commitments, the aggregate Tranche A Term Loan Commitments, the aggregate Tranche B
Term Loan Commitments and/or the aggregate Tranche C Term Loan Commitments, as
applicable, pursuant to subsection (e) above, (A) the applicable Pro Rata Shares of
the Lenders shall be automatically adjusted to give effect to such increase,
provided that the amount of each Lender’s Commitments (other than a Lender
whose Commitments shall have been increased in connection with such increase) shall
remain unchanged and (B) the Borrower, the Administrative Agent and the Lenders will
use all
commercially reasonable efforts to assign and assume outstanding Loans of the
affected category to conform the respective amounts thereof held by each Lender to
the Pro Rata Shares as so adjusted, it being understood that the parties hereto
shall use commercially reasonable efforts to avoid prepayment or assignment of any
affected Loan that is a Eurodollar Rate Loan on a day other than the last day of the
Interest Period applicable thereto and (ii) in the case of an increase in the
aggregate Tranche A Term Loan Commitments, the aggregate Tranche B Term Loan
Commitments or the aggregate Tranche C Term Loan Commitments, as applicable,
beginning with the date of the next principal amortization payment, occurring after
the date of such increase, the amount of each principal amortization payment on the
Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as applicable,
shall be increased by the minimum amount that, when allocated ratably (based on
outstandings) among all of the Lenders holding the Tranche A Term Loans, Tranche B
Term Loans or Tranche C Term Loans, as applicable, immediately after giving effect
to such increase in the Tranche A Term Loans, Tranche B Term Loans or Tranche C Term
Loans, as applicable, would provide (assuming all other things to be equal) for each
of the Lenders holding the Tranche A Term Loans, Tranche B Term Loans or Tranche C
Term Loans, as applicable, immediately prior to giving effect to such increase in
the Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as
applicable, to receive in connection with such principal amortization payment an
amount at least equal to the amount that such Lender would have received had such
increase in the aggregate Tranche A Term Loan Commitments, the aggregate Tranche B
Term Loan Commitments or the aggregate
13
Tranche C Term Loan Commitments, as
applicable (and the corresponding adjustment to such principal amortization payment
pursuant to this Section 2.01(f)) not taken place; provided
that in the case of an increase in the Tranche C Term Loan Commitments
occurring at a time when no Tranche C Term Loans are outstanding, the principal
amortization payments of the Tranche C Term Loans shall be as provided in the
agreement delivered pursuant to Section 2.01(e)(iv)(C).
(F) Section 2.06(b)(ii)(B) of the Existing Credit Agreement is hereby amended
and restated in its entirety to read as follows:
(B) Concurrently with the prepayment in full of the Tranche C Term Loan on the
Amendment No. 4 Effective Date, all Tranche C Term Loan Commitments automatically
shall be terminated, subject to Section 2.01(e).
(G) Sections 2.07(c), 2.07(d) and 2.07(e) of the Existing
Credit Agreement are hereby amended and restated in their entireties to read as follows:
(c) Tranche B Term Loan. The Borrower shall repay the outstanding
principal amount of the Tranche B Term Loan in installments on the last Business Day
of each month and in the amounts set forth in the table below (as such installments
may hereafter be adjusted as a result of prepayments made pursuant to Section
2.05 or as the result of an increase in the amount of the aggregate Tranche B
Term Loan Commitments pursuant to Section 2.01(e)), unless accelerated
sooner pursuant to Section 9.02:
| Principal Amortization | ||||
| Payment Dates | Payment | |||
September, 2005 |
$368,160 | |||
December, 2005 |
$368,160 | |||
March, 2006 |
$368,160 | |||
June, 2006 |
$368,160 | |||
September, 2006 |
$368,160 | |||
December, 2006 |
$368,160 | |||
March, 2007 |
$368,160 | |||
June, 2007 |
$368,160 | |||
September, 2007 |
$368,160 | |||
December, 2007 |
$368,160 | |||
March, 2008 |
$368,160 | |||
June, 2008 |
$368,160 | |||
September, 2008 |
$368,160 | |||
December, 2008 |
$368,160 | |||
March, 2009 |
$368,160 | |||
June, 2009 |
$368,160 | |||
September, 2009 |
$368,160 | |||
December, 2009 |
$368,160 | |||
March, 2010 |
$35,159,000 | |||
June, 2010 |
$35,159,000 | |||
September, 2010 |
$35,159,000 | |||
Maturity Date |
Remaining Balance | |||
14
(d) Tranche A Term Loan. The Borrower shall repay the outstanding
principal amount of the Tranche A Term Loan in installments on the last Business Day
of each month and in the amounts set forth in the table below (as such installments
may hereafter be adjusted as a result of prepayments made pursuant to Section
2.05 or as the result of an increase in the amount of the aggregate Tranche A
Term Loan Commitments pursuant to Section 2.01(e)), unless accelerated
sooner pursuant to Section 9.02:
| Principal Amortization | ||||
| Payment Dates | Payment | |||
March, 2008 |
$5,000,000 | |||
June, 2008 |
$5,000,000 | |||
September, 2008 |
$5,000,000 | |||
December, 2008 |
$5,000,000 | |||
March, 2009 |
$7,500,000 | |||
June, 2009 |
$7,500,000 | |||
September, 2009 |
$7,500,000 | |||
December, 2009 |
$7,500,000 | |||
March, 2010 |
$12,500,000 | |||
June, 2010 |
$12,500,000 | |||
September, 2010 |
$12,500,000 | |||
Maturity Date |
Remaining Balance | |||
15
(e) Tranche C Term Loan. The Borrower shall repay the outstanding
principal amount of the Tranche C Term Loan in installments on the last Business Day
of each month and in the amounts set forth in the table below (as such installments
may hereafter be adjusted as a result of prepayments made pursuant to Section
2.05 or as the result of an increase in the amount of the aggregate Tranche C
Term Loan Commitments pursuant to Section 2.01(e)), unless accelerated
sooner pursuant to Section 9.02:
| Principal Amortization | ||
| Payment Dates | Payment | |
September, 2005 |
n/a | |
December, 2005 |
n/a | |
March, 2006 |
n/a | |
June, 2006 |
n/a | |
September, 2006 |
n/a | |
December, 2006 |
n/a | |
March, 2007 |
n/a | |
June, 2007 |
n/a | |
September, 2007 |
n/a | |
December, 2007 |
n/a | |
March, 2008 |
n/a | |
June, 2008 |
n/a | |
September, 2008 |
n/a | |
December, 2008 |
n/a | |
March, 2009 |
n/a | |
June, 2009 |
n/a | |
September, 2009 |
n/a | |
December, 2009 |
n/a | |
March, 2010 |
n/a | |
June, 2010 |
n/a | |
September, 2010 |
n/a | |
Maturity Date |
n/a | |
(H) Section 4.01 of the Existing Credit Agreement is hereby amended and
restated to read as follows:
Each of the Guarantors hereby jointly and severally guarantees to each Lender,
each Affiliate of a Lender that enters into a Swap Contract with the Borrower, and
the Administrative Agent as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof. The
Guarantors hereby further agree that if any of the Obligations are not paid in full
when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as
a mandatory cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and that
in the case of any extension of time of payment or renewal of any of the
Obligations, the same will be promptly paid in full when due (whether at extended
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension or
renewal.
16
Notwithstanding any provision to the contrary contained herein or in any other
of the Loan Documents or Swap Contracts, (a) the obligations of each Guarantor under
this Agreement and the other Loan Documents shall be limited to an aggregate amount
equal to the largest amount that would not render such obligations subject to
avoidance under the Debtor Relief Laws or any comparable provisions of any
applicable state law, (b) the liability of Los Angeles Daily News pursuant to this
Article IV shall be limited to the maximum amount permitted under the
Greenco Option Agreement as in effect on the Closing Date and (c) prior to the time,
if any, that the California Partnership, TNMP, MNG/Power One Media Holding Company,
Inc., the Salt Lake JOA or any of their respective Subsidiaries (including Persons
which become Subsidiaries after the Closing Date pursuant to a Permitted Investment)
becomes a Wholly Owned Subsidiary, such Person shall not be required to Guarantee
all or any portion of the Obligations (or enter into a Pledge Agreement).
Upon the contribution of assets by K-T to the New Salt Lake JOA (or a
Subsidiary thereof) in accordance with the terms of Section 8.06(b) or the
contribution of all or substantially all of the Capital Stock or assets of Los
Angeles Daily News or Long Beach Publishing Company to the California Partnership
(or a Subsidiary thereof) in accordance with the terms of Section 8.06(c),
the Administrative Agent shall deliver to the Borrower, upon the Borrower’s request
and at the Borrower’s expense, such documentation as is reasonably necessary to
evidence the release of the Administrative Agent’s security interest, if any, in
such assets or Capital Stock (including, without limitation, amendments or
terminations of UCC financing statements, if any, the return of stock certificates,
if any) and the release of K-T, Los Angeles Daily News or Long Beach Publishing
Company, as applicable, from all of its obligations under this Article IV
and the Pledge Agreement.
(I) Section 7.05 of the Existing Credit Agreement is hereby amended and
restated to read as follows:
Use the proceeds of the Credit Extensions for general corporate purposes not in
contravention of any Law or of any Loan Document.
(J) Section 7.08 of the Existing Credit Agreement is hereby amended and
restated to read as follows:
Except to the extent set forth in Schedule 7.08, cause all of the
issued and outstanding Capital Stock owned by each Loan Party in (i) each Restricted
Subsidiary and (ii) to the extent required to be pledged pursuant to Section
8.21, each JOA, to be subject at all times to a first priority, perfected Lien
in favor of the Administrative Agent pursuant to the terms and conditions of the
Collateral Documents, together with opinions of counsel and any filings and
deliveries reasonably necessary in connection therewith to perfect the security
interests therein, all in form and substance reasonably satisfactory to the
Administrative Agent; provided, however, that the Capital Stock in
K-T (and any of its Subsidiaries), the Capital Stock of the California Partnership
and the Capital Stock in XXXx in existence as of the Closing Date (other than the
Charleston JOA and the York JOA) shall not be required to be subject at all times to
a first priority, perfected Lien in favor of the Administrative Agent as provided
above (i) until the date forty-five (45) days after the Closing Date (or such later
date as the Administrative Agent shall determine in its reasonable discretion) or
(ii) to the extent that the applicable Loan Parties are unable, following the
exercise of commercially reasonable efforts, to obtain
all necessary consents of their JOA partners (and, in the case of the Denver
JOA, Media General) in respect of the granting by such Loan Parties of Liens in
respect of such Capital Stock.
17
(K) Section 8.06(d) of the Existing Credit Agreement is hereby amended and
restated to read as follows:
(d) any other Voluntary Disposition (including pursuant to exercises of
Permitted Options not covered by Section 8.06(e)), so long as no Default
shall have occurred and be continuing immediately prior or after giving effect to
such Voluntary Disposition and
(i) such Voluntary Disposition is a sale to any Person for a purchase
price (at least 75% of which shall be in cash or Cash Equivalents;
provided, that the amount of any liabilities (as shown on the
Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in
the notes thereto) of the Borrower or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Obligations) that
are assumed by the transferee of any such assets shall be excluded from such
calculation) in an amount not less than the fair market value of the assets
sold net of the liabilities assumed, as determined in the good faith
judgment of the board of directors of the Borrower or the applicable
Restricted Subsidiary, and (A) the Cash Flow Percentage attributable to such
assets, together with the Cash Flow Percentage of all other assets sold by
the Borrower and its Restricted Subsidiaries pursuant to this clause (i)
within the prior four fiscal quarters of the Borrower, does not exceed 15%
and (B) the Cash Flow Percentage attributable to such assets, together with
the Cash Flow Percentage (determined, with respect to prior sales at the
time of each such sale) of all assets sold by the Borrower and its
Restricted Subsidiaries pursuant to this clause (i) since the Closing Date
does not exceed 30%, and (C) prior to consummating any such Voluntary
Disposition wherein the sale price or the fair market value of the assets of
the applicable Restricted Subsidiary is greater than $10,000,000, the
Borrower shall have furnished to the Administrative Agent (1) a certificate
of a Responsible Officer of the Borrower stating that (x) each
representation in Article VI is true and correct in all material
respects both immediately before and after giving effect to such Voluntary
Disposition (except to the extent that any such representation and warranty
specifically refers to an earlier date, in which case it was true and
correct in all material respects as of such earlier date), and (y) no
Default shall have occurred and be continuing both immediately before and
after giving effect to such Voluntary Disposition, and (2) a Pro Forma
Compliance Certificate demonstrating that the Borrower would be in
compliance with Section 8.19 after giving effect to such Voluntary
Disposition on a Pro Forma Basis as of the most recent fiscal quarter end
with respect to which the Administrative Agent has received the Required
Financial Information, or
(ii) such Voluntary Disposition is an exchange, with any Person, of
assets exchanged by the Borrower or applicable Restricted Subsidiary
comprising one or more newspapers or assets or properties utilized in a
Permitted Business, or Capital Stock of a Person owning any of the
foregoing, for one or more newspapers or assets or properties utilized in a
Permitted Business, or Capital Stock of a Person owning any of the
foregoing, and of equal
or greater value, as determined in the good faith judgment of the board
of directors of the Borrower or the applicable Restricted Subsidiary
(provided that, up to 25% of the consideration received by the
Borrower or such Restricted Subsidiary in connection with such exchange may
consist of cash or Cash Equivalents,
18
obligations or securities), and prior
to consummating any such exchange wherein the fair market value of the
assets received in exchange is greater than $10,000,000, the Borrower shall
have furnished to the Administrative Agent (1) a certificate of a
Responsible Officer of the Borrower stating that (x) each representation and
warranty in Article VI is true and correct in all material respects
both immediately before and after giving effect to such Voluntary
Disposition (except to the extent that any such representation and warranty
specifically refers to an earlier date, in which case it was true and
correct in all material respects as of such earlier date), (y) no Default
shall have occurred and be continuing both immediately before and after
giving effect to such Voluntary Disposition and (z) the value of the assets
received by the Borrower or applicable Restricted Subsidiary in such
exchange is not less than the fair market value of the assets disposed by
the Borrower or such Restricted Subsidiary in such exchange, and (2) a Pro
Forma Compliance Certificate demonstrating that the Borrower would be in
compliance with Section 8.19 after giving effect to such Voluntary
Disposition on a Pro Forma Basis as of the most recent fiscal quarter end
with respect to which the Administrative Agent has received the Required
Financial Information; and
(L) Section 8.08 of the Existing Credit Agreement is hereby amended and
restated to read as follows:
File a consolidated, combined, unitary or similar group tax return with any
other Person other than, in the case of the Borrower, a Consolidated Tax Subsidiary
and, in the case of any such Subsidiary, the Borrower or a Consolidated Tax
Subsidiary.
(M) Section 8.10 of the Existing Credit Agreement is hereby amended and
restated to read as follows:
Effect any transaction (or series of related transactions) (each a
“Transaction”) with any Affiliate of the Borrower, including, without
limitation, any sale, purchase, lease or loan or any other direct or indirect
payment, transfer or other disposition of assets, property or services, unless such
Transaction is on terms no less favorable to the Borrower or the applicable
Restricted Subsidiary, as the case may be, than those that could be obtained in a
comparable arm’s-length transaction with an independent third party except for (A)
any Transaction (i) between Loan Parties (other than a transaction involving a
Limited Guarantor) or (ii) between Restricted Subsidiaries of the Borrower that are
not Loan Parties, (B) Permitted Investments, (C) Restricted Payments not prohibited
by Section 8.04, (D) payments to MediaNews Services, Inc. for payroll and
benefits and for up to $3,500,000 per year in reimbursement of other actual cash
expenses paid by MediaNews Services, Inc. relating to the operation of the Borrower
and its Restricted Subsidiaries (or incurred on behalf of the Borrower and its
Restricted Subsidiaries), (E) employment agreements, employee benefits, insurance
(including directors and officers insurance) and compensation, including, without
limitation, bonuses, retirement plans, equity plans, directors fees and stock
options, paid to or established for directors and officers of the Borrower or any
Restricted Subsidiary in the ordinary course of business and approved by the board
of directors (or any committee
thereof) of the Borrower, (F) any Transaction to the extent that the
consideration paid by the Borrower or any Restricted Subsidiary in such Transaction
is shares of the Borrower’s Capital Stock and (G) Transactions pursuant to any
contract or agreement in effect on the Closing Date and identified on Schedule
8.10, as the same may be amended, modified or replaced from time to time, so
long as any such contract or agreement as so amended,
19
modified or replaced is, taken
as a whole, no less favorable in any material respect to the Borrower and its
Restricted Subsidiaries or to the Lenders than the contract or agreement as in
effect on the Closing Date.
(N) Section 8.16 of the Existing Credit Agreement is hereby amended and
restated to read as follows:
8.16 [Intentionally Omitted].
(O) Section 8.18 of the Existing Credit Agreement is hereby amended and
restated to read as follows:
8.18 [Intentionally Omitted].
(P) Section 8.22(a) of the Existing Credit Agreement is hereby amended and
restated to read as follows:
(a) In respect of Limited Guarantors, Restricted Subsidiaries that are not
Guarantors and XXXx, (i) permit (A) the aggregate outstanding amount of all
Indebtedness of such Persons required to be consolidated with the Borrower and its
Restricted Subsidiaries in accordance with Section 1.03(d) (excluding the
Denver Printer Debt, Indebtedness in respect of the Denver Synthetic Lease or the
Salt Lake Printer Lease and any Intercompany Debt) to exceed $75,000,000 or (B) the
aggregate outstanding amount of all Indebtedness attributable to any one of such
Person and which is required to be consolidated with the Borrower and its Restricted
Subsidiaries in accordance with Section 1.03(d) (excluding the Denver
Printer Debt, Indebtedness in respect of the Denver Synthetic Lease, the Salt Lake
Printer Lease and any Intercompany Debt) to exceed $50,000,000, or (ii) permit to
exist, at any time, any consensual restriction limiting the ability (whether by
covenant, event of default, subordination or otherwise) of any such Person to (A)
pay dividends or make any other distributions on shares of its Capital Stock or (B)
pay any obligation owed to the Borrower or any Restricted Subsidiary or (C) create
any Lien in favor of the Administrative Agent upon its property or assets whether
now owned or hereafter acquired or upon any income or profits therefrom, except that
this clause (ii) shall not apply to (1) any covenant or restriction contained in any
Contract evidencing or providing for the creation of or concerning Indebtedness of
any such Person permitted to be outstanding hereunder and limiting the ability of
such Person (x) to pay dividends or make any other distributions on shares of its
Capital Stock during the existence of any default or event of default with respect
to such Indebtedness, (y) to pay any obligation owed to the Borrower or any
Restricted Subsidiary during the existence of any default or event of default with
respect to such Indebtedness or (z) to create any Lien upon its property or assets
whether now owned or hereafter acquired or upon any income or profits therefrom or
(2) to restrictions of the kinds described in the definitions of “Permitted Liens”
or “Permitted Restrictive Covenants” set forth in Section 1.01 or described
in Schedule 8.22.
(Q) Schedule 2.01 of the Existing Credit Agreement is hereby amended and
replaced with Schedule 2.01 attached hereto.
(R) Schedule 2.01A of the Existing Credit Agreement is hereby amended and
replaced with Schedule 2.01A attached hereto.
20
2. Conditions Precedent. This Amendment shall become effective as of the date hereof
upon satisfaction of the following conditions precedent.
(A) Counterparts of Amendment. The Administrative Agent shall have received
counterparts of this Amendment, which collectively shall have been duly executed on behalf
of each of the Borrower, the Guarantors, the Required Lenders, each Revolving Lender, each
Lender holding outstanding Tranche A Term Loans and each Lender having a Tranche B Term Loan
Commitment (as shown on Schedule 2.01 as amended hereby).
(B) Authority Documents and Opinions. The Administrative Agent shall have
received (i) copies of resolutions of the board of directors (or comparable governing
authority) of each of the Loan Parties approving and adopting the Amendment and authorizing
execution and delivery thereof, certified by a secretary or assistant secretary of such
Loan Party to be true and correct and in force and effect as of the date hereof and (ii) a
written opinion of legal counsel for the Loan Parties, dated as of the date hereof, in form
and substance reasonably satisfactory to the Administrative Agent.
(C) Repayment of Tranche C Term Loans. Simultaneously with the effectiveness
of this Amendment, the Borrower shall repay the outstanding Tranche C Term Loans plus
accrued and unpaid interest thereon.
(D) Amendment Fees. The Borrower shall have paid to the Administrative Agent,
for the account of each Lender executing this Amendment, a fee equal to 0.05% of such
Lender’s Commitments (calculated after giving effect to this Amendment).
(E) Payment of Other Fees and Expenses. The Borrower shall have paid all other
fees required to be paid to BAS in connection with this Amendment and all Attorney Costs of
the Administrative Agent to the extent invoiced prior to or on the date hereof.
3. Representations and Warranties. The Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that, after giving effect to this Amendment, (a) the
representations and warranties set forth in Article VI of the Credit Agreement are, subject
to the limitations set forth therein, true and correct in all material respects as of the date
hereof (except for those which expressly relate to an earlier date) and (b) no Default or Event of
Default exists under the Credit Agreement or any of the other Loan Documents.
4. Reaffirmation of Obligations. Each Loan Party hereby ratifies the Credit Agreement
and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement applicable
to it and (b) that it is responsible for the observance and full performance of its respective
Obligations. Without limiting the generality of the foregoing sentence, each of the Guarantors
hereby (a) jointly and severally reaffirms and ratifies its guaranty of the Obligations pursuant to
Article IV of the Credit Agreement, and (b) jointly and severally reaffirms and ratifies
all agreements set forth in such Collateral Documents securing such guaranty, all of which shall in
all respects remain in full force and effect and shall continue to guarantee and secure any and all
of the Obligations, whether now existing or hereafter arising, on the same terms and conditions as
are now set forth in such Collateral Documents.
5. References in Other Loan Documents. At such time as this Amendment shall become
effective pursuant to the terms of Section 2 above, all references in the Credit Documents to the
“Credit Agreement” shall be deemed to refer to the Credit Agreement as amended by this Amendment.
6. Counterparts/Telecopy. This Amendment may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of which shall
constitute
21
together but one and the same agreement. This Amendment may be transmitted and/or
signed by facsimile. The effectiveness of any such documents and signatures shall, subject to
applicable Law, have the same force and effect as manually signed originals and shall be binding on
all Loan Parties, the Administrative Agent and the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a manually signed original thereof;
provided, however, that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile document or signature.
7. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
8. Successors and Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
9. Lender Acknowledgement. Each Person who executes this Amendment as a “Lender” but
was not a Lender prior to the date hereof, by execution of this Amendment and upon the satisfaction
of the conditions precedent set forth in Section 2 of this Amendment, (i) shall become a Lender as
of the date hereof, (ii) acknowledges and confirms its respective Commitment(s) as set forth on
Schedule 2.01 and/or Schedule 2.01A to the Credit Agreement, each as amended hereby, and (iii)
agrees and that it shall be bound by the provisions of the Credit Agreement as a Lender thereunder
and, to the extent of its Commitment, shall have all of the rights and obligations of a Lender
thereunder. Each Person that executes this Amendment as a Lender that was a Lender prior to the
date hereof, by execution of this Amendment and upon the satisfaction of the conditions precedent
set forth in Section 2 of this Amendment, hereby (i) acknowledges and confirms its respective
Commitment(s) as set forth on Schedule 2.01 and/or Schedule 2.01A to the Credit
Agreement, each as amended hereby, and (ii) acknowledges and agrees that such Commitment(s) replace
its existing Commitment(s) under the Existing Credit Agreement. In addition, each Lender further
agrees to assign and assume outstanding Commitments and Loans as is necessary to give effect to
such amended Schedules (such transactions shall be deemed to be done in accordance with and
pursuant to Section 11.07(b) of the Credit Agreement).
22
IN WITNESS WHEREOF the Borrower, the Guarantors and the Required Lenders have caused
this Amendment to be duly executed on the date first above written.
| BORROWER: | MEDIANEWS GROUP, INC., | |||
| a Delaware corporation | ||||
| By: | ||||
| Name: Xxxxxx X. Xxxx | ||||
| Title: Vice President and Chief Financial Officer | ||||
GUARANTORS:
|
ALASKA BROADCASTING COMPANY, INC., | |
| an Alaska corporation | ||
| CHARLESTON PUBLISHING COMPANY, | ||
| a Delaware corporation | ||
| CONNECTICUT NEWSPAPERS PUBLISHING COMPANY, | ||
| a Delaware corporation | ||
| THE DENVER POST CORPORATION, | ||
| a Delaware corporation | ||
| THE DETROIT NEWS, INC., | ||
| a Michigan corporation | ||
| EASTERN COLORADO PRODUCTION FACILITIES, INC., | ||
| a Delaware corporation | ||
| EASTERN COLORADO PUBLISHING COMPANY, | ||
| a Delaware corporation | ||
| FITCHBURG INTERNET MEDIA PUBLISHING COMPANY, INC., | ||
| a Delaware corporation | ||
| XXXXXX NEWSPAPERS, INC., | ||
| a Delaware corporation | ||
| XXXXXX-TRIBUNE, LLC, | ||
| a Delaware limited liability company | ||
| LONG BEACH PUBLISHING COMPANY, | ||
| a Delaware corporation | ||
| LOS ANGELES DAILY NEWS PUBLISHING COMPANY, | ||
| a Delaware corporation | ||
| XXXXXX INTERNET MEDIA PUBLISHING COMPANY, INC., | ||
| a Delaware corporation | ||
| XXXXXX PUBLISHING COMPANY, | ||
| a Delaware corporation |
| By: | ||||
| Name: Xxxxxx X. Xxxx | ||||
| Title: Vice President and Chief Financial Officer | ||||
1
| MEDIANEWS GROUP INTERACTIVE, INC., | ||
| a Delaware corporation | ||
| MEDIANEWS SERVICES, INC., | ||
| a Delaware corporation | ||
| NEW ENGLAND INTERNET MEDIA PUBLISHING, INC., | ||
| a Delaware corporation | ||
| NEW ENGLAND NEWSPAPERS, INC., | ||
| a Delaware corporation | ||
| NEW MEXICO-TEXAS MEDIANEWS GROUP | ||
| INTERACTIVE, INC., | ||
| a Delaware corporation | ||
| NEW MEXICO-TEXAS MEDIANEWS LLC, | ||
| a Delaware limited liability company | ||
| NIMITZ PAPER COMPANY, | ||
| a Delaware corporation | ||
| NORTHWEST NEW MEXICO PUBLISHING COMPANY, | ||
| a Delaware corporation | ||
| PENNSYLVANIA NEWSPAPERS PUBLISHING, INC., | ||
| a Delaware corporation | ||
| RATE WATCH, INC., | ||
| a Delaware corporation | ||
| UTAH MEDIA, INC., | ||
| a Delaware corporation | ||
| WEST COAST MEDIANEWS LLC, | ||
| a Delaware limited liability company | ||
| YORK NEWSPAPERS HOLDINGS, L.P., | ||
| a Delaware limited partnership, |
| By: | Pennsylvania Newspapers Publishing, Inc. | |||
| Managing General Partner |
| YORK NEWSPAPERS HOLDINGS, LLC, | ||
| a Delaware limited liability company | ||
| YORK DISPATCH LLC, | ||
| a Delaware limited liability company | ||
| YORK DAILY RECORD-YORK SUNDAY NEWS LLC, | ||
| a Delaware limited liability company |
| By: | ||||
| Name: Xxxxxx X. Xxxx | ||||
| Title: Vice President and Chief Financial Officer | ||||
2
| THE YORK NEWSPAPER COMPANY, | ||
| a Pennsylvania general partnership, |
| By: | York Newspapers Holdings, L.P. | |||||
| Managing General Partner | ||||||
| By: | Pennsylvania Newspapers Publishing, Inc., | |||||
| Managing General Partner | ||||||
| By: | ||||||
| Name: Xxxxxx X. Xxxx | ||||||
| Title: Vice President and Chief Financial Officer | ||||||
3
ADMINISTRATIVE |
||||
| AGENT: | BANK OF AMERICA, N.A. | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
4
LENDERS: |
||||
| [Please insert name of Lender] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
5
