EXHIBIT 4.5
SECOND AMENDING AGREEMENT to the Credit Agreement dated as of February 7, 2003,
as amended by a First Amending Agreement dated December 2, 2003, entered into in
Toronto, Ontario, as of October 12, 2004.
AMONG: SUN MEDIA CORPORATION, a corporation continued and
existing under the laws of British Columbia, Canada,
having its chief executive office at 000 Xxxx Xxxxxx
Xxxx, in the City of Toronto, Province of Ontario
(hereinafter called the "BORROWER")
PARTY OF THE FIRST PART
AND: THE FINANCIAL INSTITUTIONS NAMED ON THE SIGNATURE
PAGES HEREOF OR FROM TIME TO TIME PARTIES TO THE
CREDIT AGREEMENT (the "LENDERS")
PARTIES OF THE SECOND PART
AND: BANK OF AMERICA, N. A., AS ADMINISTRATIVE AGENT
FOR THE LENDERS, a duly constituted bank, having a
place of business at 0000 Xxxxxx Xxxxxx, 0xx floor,
in the City of Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000, and
at 000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx, X0X 0X0 (hereinafter called the
"ADMINISTRATIVE AGENT")
PARTY OF THE THIRD PART
WHEREAS the parties hereto are parties to a Credit Agreement dated as
of February 7, 2003, as amended by a First Amending Agreement dated December 2,
2003 (as amended, the "CREDIT AGREEMENT");
WHEREAS the Borrower has requested a reduction in the Applicable Margin
for Term Facility B;
WHEREAS the Administrative Agent has requested same technical
amendments to the definition of "LIBOR" and Section 12.04, and to add a new
Section 12.20 to the Credit Agreement; and
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WHEREAS the Lenders have agreed with the Borrower to the aforesaid
reduction and technical amendments, and as such, the Lenders have complied with
the provisions of Section 12.01 of the Credit Agreement, as evidenced by the
signature of each Lender on this Agreement;
NOW THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
I. INTERPRETATION
1. This Second Amending Agreement is declared to be supplemental to the
Credit Agreement and is to form part thereof and shall have the same effect
as though incorporated therein. The words and expressions starting by an
upper case letter used herein, unless otherwise defined herein or unless
there is something in the subject or the context inconsistent therewith, have
the same meaning as that ascribed to them in the Credit Agreement and all of
the provisions of the Credit Agreement, except only insofar as they may be
inconsistent with the express provisions hereof, shall apply to and shall
have effect in connection with this Second Amending Agreement.
2. Except as otherwise expressly amended hereby, the Credit Agreement
remains unamended and in full force and effect.
3. The preamble of this Second Amending Agreement shall form an
integral part hereof as if at length recited herein.
4. The division of this Second Amending Agreement into articles,
sections, subsections, paragraphs and subparagraphs and the insertion of
titles are only meant to be for reference and do not affect the meaning or
the interpretation of this Second Amending Agreement.
5. This Second Amending Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same
instrument.
6. This Second Amending Agreement and the interpretation and
enforcement thereof shall be governed by and construed in accordance with the
laws of the Province of Ontario.
7. This Second Amending Agreement shall become effective on October 12,
2004.
II. AMENDMENTS
1. Section 2.05 (5) is amended by adding a new paragraph at the end of
such Section, as
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follows: "The Borrower shall pay a premium equal to 1% of the then aggregate
outstanding principal amount of Term Loan B in respect of any reduction in
pricing of Term Facility B, if such pricing reduction occurs on or before
October 12, 2005".
2. Schedule 4 of the Credit Agreement is hereby amended by changing the
margin applicable to Libor Advances under Term Facility B from 2.25% to 2.00%
and the margin applicable to US Prime Rate Advances under Term Facility B
from 1.25% to 1.00%, and by deleting the last paragraph of such schedule and
replacing it by the following: "It is understood and agreed by the parties
hereto that during any period in which the Borrower has obtained and
maintained a senior, secured credit rating from Xxxxx'x of at least Ba1 (with
a stable outlook), such margins shall be further reduced to 1.75% with
respect to Libor Advances and 0.75% in respect of U.S. Prime Rate Advances
under Term Facility B".
3. Paragraph (a) of the definition of "LIBOR" is hereby amended by
deleting the words "appears on the page of the Telerate screen" and replacing
them by the words "is quoted on Libor01 Page of Reuters".
4. The Administration Agent's address referred to in item (II) of
Section 12.04 and immediately under its signature line is hereby deleted and
replaced by the following: 0000 Xxxxxx Xxxxxx, 0xx xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx, 00000, Attention: SuzieAnna Wan, Assistant Vice-President,
Telephone: (000) 000-0000, Fax: (000) 000-0000, E-mail:
xxxxxxxxx.xxx@xxxxxxxxxxxxx.xxx".
5. A new Section 12.20 is added to the Credit Agreement as follows:
"SECTION 12.20. USA PATRIOT ACT. Each Lender that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower,
which information includes the name and addresses of the Borrower and
other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the
Act."
III. MISCELLANEOUS
1. The Borrower hereby represents and warrants to each Lender that no
Default has occurred which is continuing, no Event of Default has occurred
which has not been waived and that it will be in compliance with the
financial covenants set forth in section 8.03 of the Credit Agreement.
2. All of the provisions of the Credit Agreement which are not amended
hereby remain in full force and effect.
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3. The Borrower shall pay upon demand all reasonable professional fees
and disbursements incurred from time to time by the Administrative Agent in
connection with the negotiation, preparation and delivery of this Second
Amending Agreement and all other documents accessory hereto as well as any
amendments to be made to any of the foregoing at any time and from time to
time.
4. This Second Amending Agreement replaces and supersedes all other
verbal or written agreements among the Administrative Agent, the Lenders or
anyone thereof and the Borrower relating to the amendments to the Credit
Agreement contemplated herein or any other issues accessory to the
transactions contemplated by this Second Amending Agreement.
5. The parties acknowledge that they have required that the present
agreement, as well as all documents, notices and legal proceedings entered
into, given or instituted pursuant hereto or relating directly or indirectly
hereto be drawn up in English. Les parties reconnaissent avoir exige la
redaction en anglais de la presente convention ainsi que de tous documents
executes, xxxx xxxxxx et procedures judiciaires intentees, directement ou
indirectement, relativement ou a la suite de la presente convention.
[REMAINDER OF PAGE LEFT BLANK]
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IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED THIS AGREEMENT ON THE
DATE AND AT THE PLACE FIRST HEREINABOVE MENTIONED.
SUN MEDIA CORPORATION BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
Per: /s/ Xxxx X'Xxxxx Per: /s/ Xxxxx Xxxxxx, Assistant VP
-------------------------- ------------------------------
Authorized Signing Officer Authorized Signing Officer
Per: /s/ Xxxxxxx Xxxxxxxx
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Authorized Signing Officer
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[Lender]
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Per:
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Authorized Signing Officer
Per:
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Authorized Signing Officer
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The undersigned acknowledge having taken cognizance of the provisions of the
foregoing Second Amending Agreement and agree that the Credit Documents executed
by them (A) remain enforceable against them in accordance with their terms, and
(B) continue to guarantee or secure, as applicable, all of the obligations of
the Persons specified in such Credit Documents in connection with the Credit
Agreement, as amended by this Second Amending Agreement:
XXXXX PUBLISHERS LIMITED SUN MEDIA (TORONTO) CORPORATION
Per: /s/ Xxxx X'Xxxxx /s/ Xxxxxxx Xxxxxxxx Per: /s/ Xxxx X'Xxxxx /s/ Xxxxxxx Xxxxxxxx
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SMC NOMINEECO INC. 3661458 CANADA INC.
Per: /s/ Xxxx X'Xxxxx /s/ Xxxxxxx Xxxxxxxx Per: /s/ Xxxx X'Xxxxx /s/ Xxxxxxx Xxxxxxxx
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3351611 CANADA INC.
Per: /s/ Xxxx X'Xxxxx /s/ Xxxxxxx Xxxxxxxx
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