SIXTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 99.2
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of August 2,
2006, 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., administrative agent for the Lenders (in such capacity, the “Administrative
Agent”), Bank of New York, as Syndication Agent, Wachovia Bank, National Association, Union
Bank of California, N.A. and KeyBank National Association, as Co-Documentation Agents and Banc of
America Securities LLC and Wachovia Capital Markets, LLC, as Joint Lead Arrangers and Joint Book
Managers.
RECITALS
A. The Borrower, the Guarantors, the Lenders and the Administrative Agent entered into that
certain Credit Agreement dated as of December 30, 2003, as amended pursuant to First Amendment to
Credit Agreement dated as of January 20, 2004, as further amended pursuant to Second Amendment to
Credit Agreement dated as of April 16, 2004, as further amended pursuant to Third Amendment to
Credit Agreement dated as of August 30, 2004, as further amended pursuant to Fourth Amendment to
Credit Agreement dated as of September 8, 2005, and as further amended pursuant to Fifth Amendment
to Credit Agreement dated as of June 28, 2006 (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 Loan Parties have requested that certain provisions of the Existing Credit Agreement be
amended; and
C. 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 definition of “Applicable Rate” appearing in Section 1.01 of
the Existing Credit Agreement is hereby amended and restated in its entirety to read as
follows:
“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 | ||||||||||||||||||||||||||||||||||||
| Consolidated | Loans and | Loans and | |||||||||||||||||||||||||||||||||||
| Total | Letters | Tranche A | Tranche | Tranche | Tranche A | Tranche | Tranche | ||||||||||||||||||||||||||||||
| Pricing | Leverage | Commitment | of | Term | B Term | C Term | Term | B Term | C Term | ||||||||||||||||||||||||||||
| Tier | Ratio | Fee | Credit | Loan | Loan | Loan | Loan | Loan | Loan | ||||||||||||||||||||||||||||
| 1 | Less than 3.5x |
0.25 | % | 0.75 | % | 0.75 | % | 1.25 | % | 1.75 | % | 0.00 | % | 0.25 | % | 0.75 | % | ||||||||||||||||||||
| 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 | % | 1.75 | % | 0.00 | % | 0.25 | % | 0.75 | % | ||||||||||||||||||||
| 3 | Less than 5.5 to
1.0 but equal to or
greater than 4.5 to
1.0 |
0.375 | % | 1.00 | % | 1.00 | % | 1.25 | % | 1.75 | % | 0.00 | % | 0.25 | % | 0.75 | % | ||||||||||||||||||||
| 4 | Equal to or greater
than 5.5 to 1.0 |
0.375 | % | 1.25 | % | 1.25 | % | 1.25 | % | 1.75 | % | 0.00 | % | 0.25 | % | 0.75 | % | ||||||||||||||||||||
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 4 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. If the St. Xxxx/Monterey Purchase
is financed with proceeds from Indebtedness incurred by the Borrower or any of its Affiliates and,
as a result thereof, either (i) the ratings of this Agreement issued by each of Xxxxx’x and S&P are
both downgraded or (ii) the Borrower’s corporate family rating issued by Xxxxx’x and the Borrower’s
corporate credit rating issued by S&P are each downgraded, then the Applicable Rate for the Tranche
C Term Loan shall be increased by 0.25%. The Applicable Rate in effect from the Amendment No. 6
Effective Date through the first Business Day immediately following the date a Compliance
Certificate is required to be delivered pursuant to Section 7.01(c) for the fiscal quarter
ending September 30, 2006 shall be determined based upon Pricing Tier 4.
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(B) The definition of “Consolidated Fixed Charges” appearing in Section
1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“Consolidated Fixed Charges” means, for any period with respect to the
Borrower and its Restricted Subsidiaries on a consolidated basis, without
duplication, the sum of (a) all Required Repayments, and all required payments of
principal of Indebtedness (including Attributable Indebtedness in respect of Capital
Leases and Synthetic Leases (other than the Denver Synthetic Lease and the Salt Lake
Printer Lease)) scheduled to have been made during such period (excluding optional
prepayments, redemptions and defeasances), determined on a consolidated basis, (b)
Consolidated Capital Expenditures for such period, (c) Consolidated Interest Expense
for such period (d) taxes paid in cash during such period net of any refunds of any
such taxes or payments received during such period (but only to the extent not in
excess of such taxes paid during such period), and (e) to the extent not included in
Consolidated Interest Expense for such period, interest paid in cash by the Borrower
or its Affiliates during such period with respect to any Indebtedness of any direct
or indirect parent company of the Borrower holding a majority of the Capital Stock
of the Borrower (including interest paid on Indebtedness described in Section
8.23).
(C) The definition of “Consolidated Operating Cash Flow” appearing in
Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“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 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 plus (D) one-time expenses incurred in connection with the
Contra Costa/San Xxxx Purchase not to exceed $3,000,000 in the aggregate during the
term of this Agreement plus (E) severance expenses for such period
not to exceed (i) $135,000 for the fiscal quarter ended December 31, 2005, (ii)
$135,000 for fiscal quarter ended Xxxxx 00, 0000, (xxx) $1,335,000 for the fiscal
quarter ended June 30, 2006, (iv) $4,750,000 in the aggregate for the fiscal year
ending June 30, 2007 and (v) $3,000,000 in the aggregate for any fiscal year
thereafter plus (F) nonrecurring plant closing costs with respect to the
Salt Lake JOA incurred during fiscal year 2006 in an aggregate amount not to exceed
$1,555,000.
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(D) The definition of “Indebtedness” appearing in Section 1.01 of the
Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Indebtedness” of any Person means (a) any obligation of such Person
for borrowed money, (b) any obligation of such Person evidenced by a bond,
debenture, note or other similar instrument, (c) any obligation of such Person to
pay the deferred purchase price of property or services, except (i) a trade account
payable that arises in the ordinary
course of business but only if and so long as the same is payable on customary trade
terms and (ii) to the extent not required to be recorded as a liability on the
balance sheet of such Person in accordance with GAAP, customary contingent earn-out
provisions contained in acquisition agreements entered into in compliance with this
Agreement, (d) the Attributable Indebtedness of such Person with respect to Capital
Leases and Synthetic Leases, (e) any Mandatorily Redeemable Stock of such Person
owned by any Person other than such Person or a Wholly Owned Subsidiary of such
Person (the amount of such Mandatorily Redeemable Stock to be determined for this
purpose as the higher of the liquidation preference of and the amount payable upon
redemption of such Mandatorily Redeemable Stock), (f) any obligation of such Person
to purchase securities or other property that arises out of or in connection with
the sale of the same or substantially similar securities or property, (g) any
non-contingent obligation of such Person to reimburse any other Person in respect of
amounts paid under a letter of credit or other Guarantee issued by such other Person
to the extent that such reimbursement obligation remains outstanding after it
becomes non-contingent, (h) any Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) a Lien on any asset of such Person, (i) any Indebtedness of others
Guaranteed by such Person, and (j) to the extent required to be recorded as a
liability on the balance sheet of such Person in accordance with GAAP, any monetary
obligation of such Person arising out of a non-competition agreement entered into by
such Person in connection with the acquisition of assets, stock, or other equity
interest of a third Person. Notwithstanding the foregoing, (1) any obligations of
the Borrower and its Restricted Subsidiaries under Section 9.9 of the Partnership
Agreement (or any provision of the Xxxxxxxx Partnership Agreement containing
comparable provisions), shall not constitute Indebtedness (A) in the case of the
Partnership Agreement, until the earlier of (i) the date subsequent to Donrey
Newspapers LLC’s exercise of its rights pursuant to such Section that the amount of
such obligations is determined in accordance with the procedures provided in the
Partnership Agreement (not to exceed 180 days) if the Borrower has not elected to
dissolve the California Partnership by such date and (ii) if the Borrower has
elected to dissolve the California Partnership by the date as described in the
preceding subclause (i), the date that is 365 days after the date that the Borrower
has elected to dissolve the California Partnership and (B) in the case of the
Xxxxxxxx Partnership Agreement, until the earlier of (i) the date subsequent to the
Xxxxxxxx Partner’s exercise of its “put” rights pursuant to the Xxxxxxxx Partnership
Agreement that the amount of such obligations is determined in accordance with the
procedures provided in the Xxxxxxxx Partnership Agreement (not to exceed 180 days)
if the Borrower has not elected to dissolve the Xxxxxxxx Partnership by such date
and (ii) if the Borrower has elected to dissolve the Xxxxxxxx Partnership by the
date as described in the preceding subclause (i), the date that is 365 days after
the date that the Borrower has elected to dissolve the Xxxxxxxx Partnership and (2)
to the extent required to be recorded as a liability on the balance sheet of such
Person in accordance with GAAP, liabilities evidencing the Borrower’s obligations to
consummate the St. Xxxx/Monterey Purchase pursuant to the Hearst Investment
Agreement shall for the avoidance of doubt not constitute Indebtedness.
(E) The definition of “Letter of Credit Sublimit” appearing in Section 1.01 of
the Existing Credit Agreement is hereby amended and restated in its entirety to read as
follows:
“Letter of Credit Sublimit” means an amount equal to the lesser of (a)
the Aggregate Revolving Commitments and (b) $35,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
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(F) The definition of “Maturity Date” appearing in Section 1.01 of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Maturity Date” (a) as to the Revolving Loans, Swingline Loans and
Letters of Credit (and the related L/C Obligations), December 30, 2009 as such date
may be extended pursuant to Section 2.14, (b) as to the Tranche A Term Loan
and Tranche B Term Loan, December 30, 2010 and (c) as to the Tranche C Term Loan,
August 2, 2013.
(G) The definition of “Permitted Acquisition” appearing in Section 1.01
of the Existing Credit Agreement is hereby amended and restated in its entirety to read as
follows:
“Permitted Acquisition” means (a) an Acquisition by a Loan Party that
is not a Limited Guarantor (whether by purchase or exchange, and whether
constituting a purchase of assets or stock) of any Permitted Business
(provided that, the business activities conducted by the Person or Property
so acquired may include any business activities that do not constitute a Permitted
Business so long as such business activities do not represent a material portion of
the overall business activities conducted by such acquired Person or Property) so
long as (i) in the case of an Acquisition of Capital Stock of another Person, such
Person shall become a Guarantor in accordance with Section 7.04 and the
Capital Stock of such Person shall be pledged pursuant to the Collateral Documents
in accordance with Section 7.08 and (ii) in the event that the aggregate
purchase price with respect to such Acquisition is greater than $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
Acquisition and (2) no Default shall have occurred and be continuing both
immediately before and after giving effect to such Acquisition, and (B) a Pro Forma
Compliance Certificate demonstrating that the Borrower would be in compliance with
Section 8.19 after giving effect to such Acquisition 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; (b) the Contra Costa/San Xxxx
Purchase; and (c) the St. Xxxx/Monterey Purchase so long as 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 the St. Xxxx/Monterey Purchase and (2)
no Default shall have occurred and be continuing both immediately before and after
giving effect to the St. Xxxx/Monterey Purchase, and (B) a Pro Forma Compliance
Certificate demonstrating that the Borrower would be in compliance with Section
8.19 after giving effect to the St. Xxxx/Monterey Purchase 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.
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(H) Subsection (xii) of the definition of “Permitted Investments” appearing in
Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its
entirety to read as follows:
(xii) (a) subject to compliance with Section 8.06(c), any
Voluntary Disposition 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) and (b) the Voluntary
Disposition (or in the case of cash, the contribution) of the California
Assets to the California Partnership (or a Subsidiary thereof) or in the
case of The Monterey County Herald, the Xxxxxxxx Partnership;
(I) The definition of “Tranche C Term Loan Commitment” appearing in Section
1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“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. 6 Effective Date (after giving effect to Amendment No. 6) is Three
Hundred Fifty Million Dollars ($350,000,000).
(J) The following new definitions are hereby added to Section 1.01 of the
Existing Credit Agreement to read as follows:
“Amendment No. 6” means the Sixth Amendment to Credit Agreement dated
as of August 2, 2006 by and among the Borrower, the Guarantors, the Lenders parties
thereto and the Administrative Agent.
“Amendment No. 6 Effective Date” means August 2, 2006.
“California Assets” means (a) the Contra Costa/San Xxxx Assets and the
St. Xxxx/Monterey Assets (other than the St. Xxxx Pioneer Press), (b) up to $470
million in cash to be used to pay the purchase price thereof under the Hearst
Purchase Agreement, the Hearst Investment Agreement and the McClatchy Purchase
Agreement (and associated expenses) or (c) a combination of such assets and cash
with aggregate value not to exceed $470 million.
“Contra Costa/San Xxxx Assets” means the San Xxxx Mercury News and the
Contra Costa Times, or entities holding only such newspapers (and related assets).
“Contra Costa/San Xxxx Purchase” means the Acquisition by the Borrower
or its Restricted Subsidiaries of the Contra Costa/San Xxxx Assets pursuant to the
McClatchy Purchase Agreement.
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“Hearst Investment Agreement” means the (x) Agreement between the
Borrower and The Hearst Corporation dated April 26, 2006, as amended by agreement
dated August 2, 2006, and (y) upon execution thereof, a stock purchase agreement to
be entered into between the Borrower and The Hearst Corporation with respect to The
Hearst Corporation’s purchase of a minority equity interest in the Borrower in
connection with the St Xxxx/Monterey Purchase.
“Hearst Purchase Agreement” means that certain Stock and Asset Purchase
Agreement dated as of April 26, 2006 by and between The Hearst Corporation and the
Borrower, including all schedules and exhibits thereto.
“McClatchy Purchase Agreement” means that certain Stock and Asset
Purchase Agreement dated as of April 26, 2006 by and between The McClatchy Company
and the Borrower, including all schedules and exhibits thereto.
“Xxxxxxxx Partnership” means a general partnership between The Xxxxxxxx
Group, Inc. (or a Subsidiary thereof) and the Borrower (or a Restricted Subsidiary
thereof), in which the Borrower holds approximately 67% of the voting equity
interest.
“St. Xxxx/Monterey Assets” means the St. Xxxx Pioneer Press and The
Monterey County Herald, or entities holding such only newspapers (and related
assets).
“St. Xxxx/Monterey Purchase” means the Acquisition by the Borrower or
its Restricted Subsidiaries of the St. Xxxx/Monterey Assets.
(K) Section 1.03(c) of the Existing Credit Agreement is hereby amended and
restated in its entirety 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
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(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, (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, and (iv) with respect to
any applicable period ending prior to the Amendment No. 6 Effective Date, pro forma
treatment shall be given to management fees payable by The Hearst Corporation to the
Borrower (or one of its Restricted Subsidiaries) pursuant to the Hearst Investment
Agreement (as if the Hearst Investment Agreement was in full force and effect during
such applicable period), provided that such pro forma treatment shall only be
available in respect of covenant calculations made in respect of each of the four
fiscal quarters ended immediately after the Amendment No. 6 Effective Date. and only
so long as either (A) the Hearst Investment Agreement remains in full force and
effect as of the date of determination or (B) the St. Xxxx/Monterey Purchase has
been consummated.
(L) Section 2.01(d) of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(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 the Amendment No. 6
Effective Date (or on the effective date of any increase in the aggregate Tranche C
Term Loan Commitments pursuant to Section 2.01(e), as applicable) 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. 6 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; provided, however, unless otherwise agreed by the
Administrative Agent and the Borrower, all Borrowings made on the Amendment No. 6
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. 6 Effective Date.
(M) Section 2.02(b) of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Pro Rata Share of the applicable Loans, and
if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans as described in the preceding subsection. In the case
of a Borrowing, each Lender shall make the amount of its Loan available to the
Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. (or 2:00 p.m. in the case of a Borrowing of Base
Rate Loans) on the Business Day specified in the applicable Loan Notice.
8
Upon
satisfaction of the applicable conditions set forth in Section 5.02 (and, in
the case of the Borrowings of the Tranche C Term Loan on the Amendment No. 6
Effective Date, the conditions precedent to the effectiveness of Amendment No. 6),
the Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting the
account of the Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent by
the Borrower; provided, however, that if, on the date of a Borrowing
of Revolving Loans, there are L/C Borrowings or Swingline Loans outstanding, then
the proceeds of such Borrowing shall be applied, first, to the payment in
full of any such L/C Borrowings, second, to the payment in full of any such
Swingline Loans and third, to the Borrower as provided above.
(N) Section 2.06(b)(ii)(B) of the Existing Credit Agreement is hereby deleted
in its entirety.
(O) Section 2.07(e) of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
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(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, 2006
|
$875,000 | |
| December, 2006 | $875,000 | |
| March, 2007 | $875,000 | |
| June, 2007 | $875,000 | |
| September, 2007 | $875,000 | |
| December, 2007 | $875,000 | |
| March, 2008 | $875,000 | |
| June, 2008 | $875,000 | |
| September, 2008 | $875,000 | |
| December, 2008 | $875,000 | |
| March, 2009 | $875,000 | |
| June, 2009 | $875,000 | |
| September, 2009 | $875,000 | |
| December, 2009 | $875,000 | |
| March, 2010 | $875,000 | |
| June, 2010 | $875,000 | |
| September, 2010 | $875,000 | |
| December, 2010 | $875,000 | |
| March, 2011 | $875,000 | |
| June, 2011 | $875,000 | |
| September, 2011 | $875,000 | |
| December, 2011 | $875,000 | |
| March, 2012 | $875,000 | |
| June, 2012 | $875,000 | |
| September, 2012 | $82,250,000 | |
| December, 2012 | $82,250,000 | |
| March, 2013 | $82,250,000 | |
| Maturity Date | Remaining Balance |
(P) The second paragraph of Section 4.01 of the Existing Credit Agreement is
hereby amended and restated in its entirety to read as follows:
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 each Lender shall make the amount of its Loan available to the
Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. (or 2:00 p.m. in the case of a Borrowing of Base
Rate Loans) on the Business Day specified in the applicable Loan Notice.
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(Q) Section 5.02 of the Existing Credit Agreement is hereby amended by adding
new clauses (e) and (f) thereto which shall read as follows:
(e) During the period, if any, commencing on the date that any obligations of
the Borrower and its Restricted Subsidiaries under Section 9.9 of the Partnership
Agreement are required to be treated as Indebtedness pursuant to this Agreement and
ending on the date that the Borrower delivers a quarterly Compliance Certificate
pursuant to Section 7.01(c)(i) containing financial covenant calculations
that treat such obligations as Indebtedness, any Request for Credit Extension
consisting of a Revolving Loan, Letter of Credit or Swingline Loan, shall be
accompanied by a calculations demonstrating compliance with financial covenants set
forth in Sections 8.19(a) and 8.19(b) on a pro forma basis (assuming
such obligations were treated as Indebtedness as of the first day of the calculation
period).
(f) During the period, if any, commencing on the date that any obligations of
the Borrower and its Restricted Subsidiaries under the Xxxxxxxx Partnership
Agreement are required to be treated as Indebtedness pursuant to this Agreement and
ending on the date that the Borrower delivers a quarterly Compliance Certificate
pursuant to Section 7.01(c)(i) containing financial covenant calculations
that treat such obligations as Indebtedness, any Request for Credit Extension
consisting of a Revolving Loan, Letter of Credit or Swingline Loan, shall be
accompanied by a calculations demonstrating compliance with financial covenants set
forth in Sections 8.19(a) and 8.19(b) on a pro forma basis (assuming
such obligations were treated as Indebtedness as of the first day of the calculation
period).
(R) The following new Section 7.09 is hereby added to the Existing Credit
Agreement to read as follows:
7.09 Maintenance of Debt Ratings.
From and after the Amendment No. 6 Effective Date, the Borrower shall maintain
and shall reaffirm on an annual basis (a) a corporate family rating by Xxxxx’x, (b)
a corporate credit rating by S&P and (c) ratings for this Agreement from each of
Xxxxx’x and S&P.
(S) The word “and” at the end of Section 8.04(g) of the Existing Credit
Agreement is hereby deleted, the “.” at the end of Section 8.04(h) is hereby deleted
and replaced with “; and”, and the following new Section 8.04(i) is hereby added to
the Existing Credit Agreement to read as follows:
(i) made by the Borrower to any direct or indirect parent company of the
Borrower holding a majority of the Capital Stock of the Borrower for the sole
purpose of paying cash interest with respect to any Indebtedness of such direct or
indirect parent company of the Borrower holding a majority of the Capital Stock of
the Borrower, provided that (A) no Event of Default exists or would result therefrom
and (B) such Indebtedness is not prohibited by Section 8.23.
11
(T) Section 8.06(c) of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(c) (1) 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), so long as the Borrower shall have furnished
to the Administrative Agent, not later than the fifth Business Day preceding the
date of any such Voluntary Disposition (i) a certificate of a Responsible Officer of
the Borrower stating that (A) 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 (B) no Default shall
have occurred and be continuing both immediately before and after giving effect to
such Voluntary Disposition, and (ii) 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 (2) the contribution of the
California Assets to the California Partnership (or a Subsidiary thereof) or in the
case of The Monterey County Herald, to the Xxxxxxxx Partnership;
(U) Section 8.19 of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(a) Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio as of the end of any fiscal quarter of the Borrower set forth below
to be greater than the ratio corresponding to such fiscal quarter:
| Calendar Year | March 31 | June 30 | September 30 | December 31 | ||||
| 2006 | N/A | 6.00 to 1.0 | 6.00 to 1.0 | 6.00 to 1.0 | ||||
| 2007 | 6.00 to 1.0 | 6.00 to 1.0 | 5.50 to 1.0 | 5.50 to 1.0 | ||||
| 2008 | 5.50 to 1.0 | 5.50 to 1.0 | 5.25 to 1.0 | 5.25 to 1.0 | ||||
| 2009 | 5.25 to 1.0 | 5.25 to 1.0 | 5.00 to 1.0 | 5.00 to 1.0 | ||||
| 2010 | 5.00 to 1.0 | 5.00 to 1.0 | 4.50 to 1.0 | 4.50 to 1.0 | ||||
| Thereafter | 4.50 to 1.0 | 4.50 to 1.0 | 4.50 to 1.0 | 4.50 to 1.0 |
(b) Ratio of Consolidated Senior Debt to Consolidated Operating Cash
Flow. Permit the ratio of Consolidated Senior Debt to Consolidated Operating
Cash Flow as of the end of any fiscal quarter of the Borrower set forth below to be
greater than the ratio corresponding to such fiscal quarter:
| Calendar Year | March 31 | June 30 | September 30 | December 31 | ||||
| 2006 | N/A | 4.00 to 1.0 | 4.00 to 1.0 | 4.00 to 1.0 | ||||
| 2007 | 4.00 to 1.0 | 4.00 to 1.0 | 3.50 to 1.0 | 3.50 to 1.0 | ||||
| 2008 | 3.50 to 1.0 | 3.50 to 1.0 | 3.50 to 1.0 | 3.50 to 1.0 | ||||
| Thereafter | 3.50 to 1.0 | 3.50 to 1.0 | 3.00 to 1.0 | 3.00 to 1.0 |
12
(c) Fixed Charge Coverage. Permit the ratio of (i) Consolidated Operating Cash
Flow to (ii) Consolidated Fixed Charges as of the end of any fiscal quarter of the Borrower
to be less than 1.25 to 1.0.
(V) The following new Section 8.23 is hereby added to the Existing Credit
Agreement to read as follows:
8.23 Restrictions on Holdco Debt.
Permit any direct or indirect parent company of the Borrower to create, incur,
assume or suffer to exist any Indebtedness that (a) is guaranteed by the Borrower,
any of its Subsidiaries or any JOA, (b) is recourse to Borrower, any of its
Subsidiaries or any JOA, or (c) has a maturity date on or before the Maturity Date
of the Tranche C Term Loans.
(W) Section 9.01(d) of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(d) With respect to any Indebtedness (other than Indebtedness outstanding under
the Loan Documents) in excess of $10,000,000 in the aggregate for the Borrower and
its Restricted Subsidiaries taken as a whole or any direct or indirect parent
company of the Borrower holding a majority of the Capital Stock of the Borrower, (i)
either (A) a default in any payment shall occur and continue (beyond the applicable
grace period with respect thereto, if any) with respect to any such Indebtedness or
(B) a default in the observance or performance relating to such Indebtedness or
contained in any Contract evidencing, securing or relating thereto, or any other
event or condition shall occur or exist, and such default, event or condition shall
continue after the applicable grace period, if any, specified therein, if the effect
of such default, event or condition is to accelerate, or to permit the acceleration
of, the maturity of such Indebtedness; or (ii) any such Indebtedness shall be
declared due and payable, or required to be prepaid other than by a regularly
scheduled required prepayment or redemption or defeasance in accordance with the
terms thereof, prior to the stated maturity thereof; unless in each such case the
obligee under or holder of such Indebtedness shall have waived in writing such
circumstance so that such circumstance is no longer continuing; or
(X) Section 9.01(e) of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(e) (i) The Borrower, any Restricted Subsidiary, any other Loan Party or any
direct or indirect parent company of the Borrower holding a majority of the Capital
Stock of the Borrower shall (A) commence a voluntary case under the United
States Bankruptcy Code (as now or hereafter in effect), (B) file a petition seeking
to take advantage of any other Debtor Relief Laws, (C) consent to or fail to contest
in a timely and appropriate manner any petition filed against it in an involuntary
case under Debtor Relief Laws, (D) apply for, or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, liquidator or the like of itself or of a substantial
part of its assets, domestic or foreign, (E) admit in writing its inability to pay,
or generally not be paying, its debts (other than those that are the subject of bona
fide disputes) as they become due, (F) make a general assignment for the benefit of
creditors, or (G) take any corporate action for the purpose of effecting any of the
foregoing; or
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(ii) (A) A case or other proceeding shall be commenced against the Borrower,
any Restricted Subsidiary, any other Loan Party or any direct or indirect parent
company of the Borrower holding a majority of the Capital Stock of the Borrower
seeking (1) relief under the United States Bankruptcy Code (as now or hereafter in
effect) or under any other Debtor Relief Laws, or (2) the appointment of a trustee,
receiver, custodian, liquidator or the like of the Borrower, any such Restricted
Subsidiary, any other Loan Party or any direct or indirect parent company of the
Borrower holding a majority of the Capital Stock of the Borrower, or of all or any
substantial part of the assets, domestic or foreign, of the Borrower, any such
Restricted Subsidiary or any other Loan Party or any direct or indirect parent
company of the Borrower holding a majority of the Capital Stock of the Borrower, and
such case or proceeding shall continue undismissed and unstayed for a period of 45
days, or (B) an order granting the relief requested in such case or proceeding
against the Borrower, any such Restricted Subsidiary or any other Loan Party or any
direct or indirect parent company of the Borrower holding a majority of the Capital
Stock of the Borrower (including an order for relief under such Federal bankruptcy
laws) shall be entered; or
(Y) Section 10.04(b) of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(b) For purposes of determining compliance with the conditions specified in
Section 5.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received notice
from such Lender prior to the Closing Date or, in the case of the Tranche C Term
Loan, the Amendment No. 6 Effective Date, in either case, specifying its objection
thereto.
(Z) The following new Section 11.02(e) is hereby added to the Existing Credit
Agreement to read as follows:
(e) The Platform. INTRALINKS OR ANOTHER SIMILAR ELECTRONIC SYSTEM (THE
“PLATFORM”) IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS
OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY
RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the Borrower, any Lender or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s
transmission of materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, “Borrower Materials”) through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final judgment to
have resulted from the gross negligence or willful misconduct of such Agent Party;
provided, however, that in no event shall any Agent Party have any
liability to the Borrower, any Lender or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual
damages).
14
(AA) The following new Section 11.02(f) is hereby added to the Existing Credit
Agreement to read as follows:
(f) Change of Address, Etc. Each of the Borrower and the
Administrative Agent may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties hereto.
Each other Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the Borrower and the Administrative
Agent. In addition, each Lender agrees to notify the Administrative Agent from time
to time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail
address to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.
(BB) Section 11.07(b) of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(b) Any Lender may at any time assign to one or more assignees all or a portion
of its rights and obligations under this Agreement and the other Loan Documents
(including all or a portion of its Commitment and the Loans (including for purposes
of this subsection (b), participations in L/C Obligations and in Swingline Loans) at
the time owing to it); provided that any such assignment shall be subject to
the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the related Loans at the time owing to it
or in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund (defined below), no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this
Section 11.07, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) or, if the Commitment is
not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of the date
the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 in the case of an assignment of Revolving Loans and $1,000,000 in
the case of an assignment of Tranche A Term Loans, Tranche B Term Loans or
Tranche C Term Loans unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of
an Assignee Group (defined below) and concurrent assignments from members of
an Assignee Group to a single assignee (or to an assignee and members of its
Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met.
15
(ii) Proportionate Amounts. Each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender’s
Loans and Commitments, and rights and obligations with respect thereto,
assigned, except that this clause (ii) shall not (A) apply to the Swingline
Lender’s rights and obligations in respect of Swingline Loans or (B)
prohibit any Lender from assigning all or a portion of its rights and
obligations in respect of its Revolving Commitment (and the related
Revolving Loans thereunder) and its outstanding Tranche A Term Loans,
Tranche B Term Loans or Tranche C Term Loans on a non-pro rata basis;
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of this
Section and, in addition:
(A) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of such
assignment or (2) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to
be unreasonably withheld or delayed) shall be required for
assignments in respect of (i) any Commitment if such assignment is to
a Person that is not a Lender with a Commitment in respect of the
Commitment subject to such assignment, an Affiliate of such Lender or
an Approved Fund with respect to such Lender or (ii) any Tranche A
Term Loan, Tranche B Term Loan or Tranche C Term Loan to a Person
that is not a Lender, an Affiliate of a Lender or an Approved Fund;
and
(C) the consent of the L/C Issuers (such consent not to be
unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and
16
(D) the consent of the Swingline Lender (such consent not to be
unreasonably withheld or delayed) shall be required for any
assignment in respect of Revolving Loans and Revolving Commitments.
(iv) Assignment and Assumption. The parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee in the amount, if
any, required as set forth in Exhibit 11.07; provided,
however, that the Administrative Agent may, in its sole discretion,
elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be
made to the Borrower or any of the Borrower’s Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment
shall be made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section 11.07, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 3.01, 3.04, 3.05, 11.04 and 11.05
with respect to facts and circumstances occurring prior to the effective date of
such assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d) of
this Section 11.07.
(CC) Section 11.07(g) of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(g) As used herein, the following terms have the following meanings:
“Eligible Assignee” means any Person that meets the requirements to be
an assignee under Sections 11.07(b)(iii), (v) and (vi)
(subject to such consents, if any, as may be required under Section
11.07(b)(iii)).
“Fund” means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
17
“Approved Fund” means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity
that administers or manages a Lender.
“Assignee Group” means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
(DD) The following new Section 11.07(i) is hereby added to the Existing Credit
Agreement to read as follows:
(i) Electronic Execution of Assignments. The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.
(EE) The following new Section 11.21 is hereby added to the Existing Credit
Agreement to read as follows:
11.21 No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby, the
Loan Parties each acknowledge and agree that: (a) the credit facilities provided for
hereunder and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification hereof or
of any other Loan Document) are an arm’s-length commercial transaction between the
Loan Parties and their respective Affiliates, on the one hand, and the
Administrative Agent and BAS, on the other hand, and each of the Loan Parties is
capable of evaluating and understanding and understands and accepts the terms, risks
and conditions of the transactions contemplated hereby and by the other Loan
Documents (including any amendment, waiver or other modification hereof or thereof);
(b) in connection with the process leading to such transaction, the Administrative
Agent and BAS each is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary, for the Loan Parties or any of their
respective Affiliates, stockholders, creditors or employees or any other Person; (c)
neither the Administrative Agent nor BAS has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of any Loan Party with respect to any of
the transactions contemplated hereby or the process leading thereto, including with
respect to any amendment, waiver or other modification hereof or of any other Loan
Document (irrespective of whether the Administrative Agent or BAS has advised or is
currently advising any of the Loan Parties or any of their respective Affiliates on
other matters) and neither the Administrative Agent
nor BAS has any obligation to any of the Loan Parties or any of their
respective Affiliates with respect to the transactions contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents; (d)
the Administrative Agent and BAS and their respective Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the
Loan Parties and their respective Affiliates, and neither the Administrative Agent
nor BAS has any obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (e) the Administrative Agent and BAS
have not provided and will not provide any legal, accounting, regulatory or tax
advice with respect to any of the transactions contemplated hereby (including any
amendment, waiver or other modification hereof or of any other Loan Document) and
each Loan Party has consulted its own legal, accounting, regulatory and tax advisors
to the extent it has deemed appropriate.
18
Each Loan Party hereby waives and
releases, to the fullest extent permitted by law, any claims that it may have
against the Administrative Agent and BAS with respect to any breach or alleged
breach of agency or fiduciary duty.
(FF) Schedule 2.01A of the Existing Credit Agreement is hereby amended and
replaced with Schedule 2.01A attached hereto.
(GG) A new Exhibit 11.07-A is hereby added to the Existing Credit Agreement in
the form of Exhibit 11.07-A attached hereto.
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 and each Lender having a
Tranche C Term Loan Commitment (as shown on Schedule 2.01A 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) Consummation of Transactions. (i) The Contra Costa/San Xxxx Purchase
shall be consummated prior to or concurrently with the effectiveness of this Amendment in
all material respects in accordance with the terms of the McClatchy Purchase Agreement and
in material compliance with applicable law and regulatory approvals. The McClatchy Purchase
Agreement shall not have been altered, amended or otherwise changed or supplemented in any
material respect or any material condition therein waived, without the prior written consent
of the Administrative Agent. The Administrative Agent shall have received a copy, certified
by a Responsible Officer of the Borrower as true and complete, of the McClatchy Purchase
Agreement as originally executed and delivered, together with all exhibits and schedules.
In connection therewith, the Borrower shall contribute the California Assets to the
California Partnership (or a Subsidiary thereof).
(ii) The purchase of the St. Xxxx/Monterey Assets by the Hearst Corporation
shall be consummated prior to or concurrently with the effectiveness of this
Amendment in all material respects in accordance with the terms of the Hearst
Purchase Agreement and in material compliance with applicable law and regulatory
approvals. The Hearst Purchase Agreement shall not have been altered, amended or
otherwise changed or supplemented in any material respect or any material condition
therein waived, without the prior written consent of the Administrative Agent.
19
The
Administrative Agent shall have received a copy, certified by a Responsible Officer
of the Borrower as true and complete, of the Hearst Purchase Agreement as originally
executed and delivered, together with all exhibits and schedules. In addition, the
Borrower shall have entered into the Hearst Investment Agreement with The Hearst
Corporation in respect of the St. Xxxx/Monterey Assets, which agreement shall be in
form and substance reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall have received a copy, certified by a Responsible Officer
of the Borrower as true and complete, of such Hearst Investment Agreement as
originally executed and delivered, together with all exhibits and schedules.
(D) Equity Contributions. The Administrative Agent shall have received
satisfactory evidence of consummation of the cash equity contribution to the Borrower and
its Affiliates by Xxxxxxxx Group, Inc. and Gannett Co., Inc. (or their affiliates) in a
minimum amount of Three Hundred Twenty-Five Million Dollars ($325,000,000) on terms and
conditions reasonably satisfactory to the Administrative Agent.
(E) Financial Conditions. The Administrative Agent shall have received (i) the
unaudited statements of assets and liabilities of the McClatchy Assets as of December 25,
2005, and the related unaudited statements of revenues and expenses for the twelve month
period ended December 25, 2005, (ii) a pro forma balance sheet and income statement of the
Borrower and its Subsidiaries as of their most recently completed fiscal quarter which gives
effect to the Contra Costa/San Xxxx Purchase, (iii) satisfactory evidence that the
Consolidated Total Leverage Ratio for the most recently ended four fiscal quarter period for
which financial statements are available prior to the McClatchy Asset Purchase is not
greater than 5.75 to 1.0 (calculated on a Pro Forma Basis and after giving effect to the
amendments to the definition of Consolidated Operating Cash Flow and to Section 1.03 of the
Existing Credit Agreement provided herein) and (iv) satisfactory evidence that the ratio of
(a) Consolidated Senior Debt to (b) Consolidated Operating Cash Flow is not greater than
3.75 to 1.0 (calculated on a Pro Forma Basis and after giving effect to the amendments to
the definition of Consolidated Operating Cash Flow and to Section 1.03 of the Existing
Credit Agreement provided herein).
(F) Debt Ratings. The Administrative Agent shall have received evidence that
the Borrower shall have received (i) a corporate family rating and a rating with respect to
its senior secured Indebtedness issued by Xxxxx’x and (ii) a corporate credit rating and a
rating with respect to its senior secured Indebtedness issued by S&P.
(G) Certificates. The Administrative Agent shall have received (i) a
certificate of a Responsible Officer of the Borrower stating that (a) the representations
and warranties in Article VI of the Existing Credit Agreement 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 the Contra Costa/San Xxxx Purchase and (b) no Default
shall have occurred and be continuing both immediately before and after giving effect to the
Contra Costa/San Xxxx Purchase, and (ii) a Pro Forma Compliance Certificate demonstrating
that the Borrower is in compliance with Section 8.19 of the Existing Credit
Agreement after giving effect to the Contra Costa/San Xxxx Purchase 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.
20
(H) Amendment Fees. The Borrower shall have paid to the Administrative Agent,
for the account of each Lender executing this Amendment, a fee equal to 0.15% of such
Lender’s Commitments (calculated prior to giving effect to this Amendment).
(I) 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 Existing 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 Existing Credit Agreement or any of the other Loan Documents.
4. Reaffirmation of Obligations. Each Loan Party hereby ratifies the Existing Credit
Agreement and acknowledges and reaffirms (a) that it is bound by all terms of the Existing 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 (x) jointly and severally reaffirms and ratifies its guaranty of the
Obligations pursuant to Article IV of the Existing Credit Agreement, and (y) 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 Loan Documents to the
“Credit Agreement” shall be deemed to refer to the Existing 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 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.
21
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 2.01A to the Existing Credit Agreement, as amended hereby, and (iii) agrees and that it
shall be bound by the provisions of the Existing 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.
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: | /s/ Xxxxxx X. Xxxx | |||||
| 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 PUBLISHING COMPANY, | ||||||
| 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: | /s/ Xxxxxx X. Xxxx | |||||
| Name: Xxxxxx X. Xxxx | ||||||
| Title: Vice President and Chief Financial Officer | ||||||
| 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 | ||||||
| NIMITZ PAPER COMPANY, | ||||||
| a Delaware corporation | ||||||
| NORTHWEST NEW MEXICO PUBLISHING COMPANY, | ||||||
| a Delaware corporation | ||||||
| RATE WATCH, INC., | ||||||
| a Delaware corporation | ||||||
| UTAH MEDIA, INC., | ||||||
| a Delaware corporation | ||||||
| WEST COAST MEDIANEWS LLC, | ||||||
| a Delaware limited liability company | ||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
| Name: Xxxxxx X. Xxxx | ||||||
| Title: Vice President and Chief Financial Officer | ||||||
| ADMINISTRATIVE AGENT: | BANK OF AMERICA, N.A. | |||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxxxxx | ||||||
| Title: Assistant Vice President | ||||||
| BANK OF AMERICA, N.A. | ||||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxxx | ||||||
| Title: Vice President | ||||||
| THE BANK OF NEW YORK | ||||||
| By: | /s/Xxxxxxx Xxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD | ||||||
| By: | /s/ Xxxxx Xxxxxxx | |||||
| Name: Xxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| Big Sky III SENIOR LOAN TRUST | ||||||
| BY: XXXXX XXXXX MANAGEMENT | ||||||
| AS INVESTMENT ADVISOR | ||||||
| [Please insert name of Lender] | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxx |
||||||
| Title: Vice President | ||||||
| BLUE SHIELD OF CALIFORNIA_ |
||||||
| [Please insert name of Lender] | ||||||
| By: | /s/ Alex Xxxxx Xx | |||||
| Name: | ||||||
| Title: | ||||||
| BNP PARIBAS | ||||
| By: | /s/ Xxx Xxxxxxxxx | |||
| Name: Xxx Xxxxxxxxx | ||||
| Title: Director | ||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: Xxxxx Xxxxxxx | ||||
| Title: Director Media & Telecom Finance | ||||
| Citizens Bank of Massachusetts | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: Xxxxxxx X. Xxxxxx | ||||
| Title: Vice President | ||||
| C.M. LIFE INSURANCE COMPANY | ||||||
| By: | Babson Capital Management LLC | |||||
| As Investment Sub-Advisor |
||||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||||
| MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY | ||||||
| By: | Babson Capital Management LLC | |||||
| As Investment Advisor |
||||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||||
| MAPLEWOOD (CAYMAN) LIMITED | ||||||
| By: | Babson Capital Management LLC | |||||
| As Investment Manager |
||||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||||
| BABSON CLO LTD. 2004-II | ||||||
| BABSON CLO LTD. 2005-I | ||||||
| BABSON CLO LTD. 2006-I | ||||||
| By: | Babson Capital Management LLC | |||||
| As Collateral Manager |
||||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||||
| HAKONE FUND II LLC | ||||||
| By: | Babson Capital Management LLC | |||||
| As Investment Manager |
||||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||||
| XXXX & XXXXXXX XXXXX FOUNDATION | ||||||
| By: | Babson Capital Management LLC | |||||
| As Investment Adviser |
||||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||||
| Comerica West Incorporated | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxxxx | ||||
| Title: Corporate Banking Representative | ||||
| Deutsche Bank Trust Company Americas | ||||
| [Please insert name of Lender] | ||||
| By: | /s/ Xxxxx XxXxxxx | |||
| Name: Xxxxx XxXxxxx | ||||
| Title: Director | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: Xxxxx X. Xxxxx | ||||
| Title: Director | ||||
| EAGLE LOAN TRUST | ||||
| By: Xxxxxxxxx Capital Partners, LLC | ||||
| as its Collateral Manager | ||||
| By: | /s/ Xxxxx Frex | |||
| Name: Xxxxx Frex | ||||
| Title: M.D. | ||||
| XXXXX XXXXX CDO III, LTD | ||||
| BY: XXXXX XXXXX MANAGEMENT | ||||
| AS INVESTMENT ADVISOR | ||||
| [Please insert name of Lender] | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Vice President | ||||
| XXXXX XXXXX CDO VIII, LTD | ||||
| BY: XXXXX XXXXX MANAGEMENT | ||||
| AS INVESTMENT ADVISOR | ||||
| [Please insert name of Lender] | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Vice President | ||||
| XXXXX XXXXX FLOATING-RATE INCOME TRUST | ||||
| BY: XXXXX XXXXX MANAGEMENT | ||||
| AS INVESTMENT ADVISOR | ||||
| [Please insert name of Lender] | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Vice President | ||||
| XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND | ||||
| BY: XXXXX XXXXX MANAGEMENT | ||||
| AS INVESTMENT ADVISOR | ||||
| [Please insert name of Lender] | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Vice President | ||||
| XXXXX XXXXX VARIABLE LEVERAGE FUND LTD. | ||||
| BY: XXXXX XXXXX MANAGEMENT | ||||
| AS INVESTMENT ADVISOR | ||||
| [Please insert name of Lender] | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Vice President | ||||
| XXXXX XXXXX VT FLOATING-RATE INCOME FUND | ||||
| BY: XXXXX XXXXX MANAGEMENT | ||||
| AS INVESTMENT ADVISOR | ||||
| [Please insert name of Lender] | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Vice President | ||||
| Erste Bank New York | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: Xxxxxx X. Xxxxxx | ||||
| Title: Director | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: Xxxx Xxxxxxx | ||||
| Title: Director | ||||
| FIRST TRUST/FOUR CORNERS SENIOR FLOATING RATE | ||||
| INCOME FUND, as Lender | ||||
| By: Four Corners Capital Management LLC, as Sub-Adviser | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: Xxxxxx Xxxxxxxxx | ||||
| Title: Senior Vice President | ||||
| FIRST TRUST/FOUR CORNERS SENIOR FLOATING RATE | ||||
| INCOME FUND II, as Lender | ||||
| By: Four Corners Capital Management LLC, as Sub-Adviser | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: Xxxxxx Xxxxxxxxx | ||||
| Title: Senior Vice President | ||||
| SECURITY INCOME FUND-INCOME OPPORTUNIY SERIES, as Lender | ||||
| By: Four Corners Capital Management LLC, as Sub-Adviser | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: Xxxxxx Xxxxxxxxx | ||||
| Title: Senior Vice President | ||||
| FRANKLIN CLO V, LTD | ||||
| [Please insert name of Lender] | ||||
| By: | /s/ Alex Xxxxx Xx | |||
| Name: Alex Xxxxx Xx | ||||
| Title: Authorized Signatory | ||||
| FRANKLIN FLOATING RATE | ||||||
| DAILY ACCESS FUND | ||||||
| [Please insert name of Lender] | ||||||
| By: Name: |
/s/ Xxxxxxx Xxx
|
|||||
| Title: | Vice President | |||||
| FRANKLIN FLOATING RATE MASTER | ||||||
| [Please insert name of Lender] | ||||||
| By: Name: |
/s/ Xxxxxxx Xxx
|
|||||
| Title: | Vice President | |||||
| XXXXXXXX XXXXXXXXX | ||||||
| XXX. DURATION INCOME TRUST | ||||||
| [Please insert name of Lender] | ||||||
| By: Name: |
/s/ Xxxxxxx Xxx
|
|||||
| Title: | Vice President | |||||
| FRANKLIN CLO II, LIMITED | ||||||
| [Please insert name of Lender] | ||||||
| By: Name: |
/s/ Alex Xxxxx Xx
|
|||||
| Title: | Authorized Signatory | |||||
| FRANKLIN CLO IV, LIMITED | ||||||
| [Please insert name of Lender] | ||||||
| By: Name: |
/s/ Alex Xxxxx Xx
|
|||||
| Title: | Authorized Signatory | |||||
| GENERAL ELECTRIC CAPITAL CORPORATION | ||||||
| [Please insert name of Lender] | ||||||
| By: Name: |
/s/ Xxxx Xxxxxxx
|
|||||
| Title: | Duly Authorized Signatory | |||||
| XXXXXXX & CO. | ||||||
| BY: BOSTON MANAGEMENT AND RESEARCH | ||||||
| AS INVESTMENT ADVISOR | ||||||
| [Please insert name of Lender] | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||||
| Title: | Vice President | |||||
| Xxxxxxxx Floating Rate Fund, LLC | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||||
| Title: | Vice President | |||||
| KEYBANK NATIONAL ASSOCIATION | ||||||
| [Please insert name of Lender] | ||||||
| By: Name: |
/s/ Xxxxxxxx Xxxxxx
|
|||||
| Title: | Executive Vice President | |||||
| MONUMENT PARK CDO LTD. | ||||||
| By: Blackstone Debt Advisors L.P. | ||||||
| As Collateral Manger | ||||||
| [Please insert name of Lender] | ||||||
| By: Name: |
/s/ Xxxx X. Xxxxxxx
|
|||||
| Title: | Senior Managing Director | |||||
| National City Bank | ||||||
| By: Name: |
/s/ Xxxxxxx Xxxxxx
|
|||||
| Title: | Senior Vice Preisdent | |||||
| THE NORINGHUKIN BANK, NEW YORK BRANCH | ||||||
| Through State Street Bank And Trust Company N.A. | ||||||
| As Fiduciary Custodian | ||||||
| By: Xxxxx Xxxxx Management, | ||||||
| Attorney-In-Fact | ||||||
| [Please insert name of Lender] | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||||
| Title: | Vice President | |||||
| XXXXXXXXX/RMF TRANSATLANTIC CDO LTD. | ||||||
| By: Xxxxxxxxx Capital Partners, LLC | ||||||
| as its Collateral Manager | ||||||
| By: Name: Title: |
/s/ Xxxxx Frex
M.D. |
|||||
| Sumitomo Mitsui Banking Corporation | ||||||
| By: Name: |
/s/ Xxx X. Xxxxxxxxx
|
|||||
| Title: | Joint General Manager | |||||
| SUNTRUST BANK | ||||||
| By: Name: |
/s/ Xxxxxx X. Xxxxxx
|
|||||
| Title: | Managing Director | |||||
| TOLLI & CO. | ||||||
| BY: XXXXX XXXXX MANAGEMENT | ||||||
| AS INVESTMENT ADVISOR | ||||||
| [Please insert name of Lender] | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx
|
|||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||
| Title: | Vice President | |||||
| UNION BANK OF CALIFORNIA, N.A. | ||||||
| By: | /s/ Xxxxxxx Xxxx
|
|||||
| Name: | Xxxxxxx Xxxx | |||||
| Title: | Vice President | |||||
| UNION SQUARE CDO LTD. | ||||||
| By: Blackstone Debt Advisors L.P. | ||||||
| As Collateral Manger | ||||||
| [Please insert name of Lender] | ||||||
| By: | /s/ Xxxx X. Xxxxxxx
|
|||||
| Name: | Xxxx X. Xxxxxxx | |||||
| Title: | Senior Managing Director | |||||
| U.S. Bank, National Association | ||||||
| By: | /s/ Xxxxxx Xxxxxx
|
|||||
| Name: | Xxxxxx Xxxxxx | |||||
| Title: | SVP | |||||
| XXX XXXXXX | ||||||
| SENIOR INCOME TRUST | ||||||
| By: Xxx Xxxxxx Asset Managment | ||||||
| By: | /s/ Xxxxxxxxx Jamleson
|
|||||
| Name: | Xxxxxxxxx Jamleson | |||||
| Title: | Executive Director | |||||
| XXX XXXXXX | ||||||
| SENIOR LOAN FUND | ||||||
| By: Xxx Xxxxxx Asset Managment | ||||||
| By: | /s/ Xxxxxxxxx Jamleson
|
|||||
| Name: | Xxxxxxxxx Jamleson | |||||
| Title: | Executive Director | |||||
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxx Xxxxx
|
|||||
| Name: Xxxx Xxxxx | ||||||
| Title: Director | ||||||
| XXXXXXX BANK, NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxx Xxxx
|
|||||
| Name: | ||||||
| Title: | Vice President | |||||
| XXXXX FARGO BANK, N.A. | ||||||
| By: | /s/ Xxxxxxxxx X. Xxxxx
|
|||||
| Name: | Xxxxxxxxx X. Xxxxx | |||||
| Title: | Vice President | |||||
Schedule 2.01A
COMMITMENTS AND PRO RATA SHARES
(TRANCHE A TERM LOAN* AND TRANCHE C TERM LOAN)
(TRANCHE A TERM LOAN* AND TRANCHE C TERM LOAN)
| Tranche C Term Loan | ||||||||
| Lender | Commitment | Pro Rata Share | ||||||
Bank of America, N.A. |
$ | 350,000,000.00 | 100.000000000 | % | ||||
Total |
$ | 350,000,000.00 | 100.000000000 | % | ||||
| * | Please note that the Tranche A Term Loan Commitments and respective Pro Rata Shares have been omitted from this Schedule as they will not change as a result of this Amendment. |
Exhibit 11.07-A
PROCESSING AND RECORDATION FEES
The Administrative Agent will charge a processing and recordation fee (an “Assignment
Fee”) in the amount of $2,500 for each assignment; provided, however, that in
the event of two or more concurrent assignments to members of the same Assignee Group (which may be
effected by a suballocation of an assigned amount among members of such Assignee Group) or two or
more concurrent assignments by members of the same Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group), the Assignment Fee will be $2,500 plus
the amount set forth below:
| Transaction | Assignment Fee | |||
First four concurrent assignments or suballocations to
members of an Assignee Group (or from members of an
Assignee Group, as applicable) |
-0- | |||
Each additional concurrent assignment or suballocation to a
member of such Assignee Group (or from a member of such
Assignee Group, as applicable) |
$ | 500 | ||
