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Exhibit 10.02
FIRST AMENDMENT AGREEMENT
THIS FIRST AMENDMENT AGREEMENT (this "Amendment"), dated as of May 12,
1997, is among ▇▇▇▇▇▇▇▇▇ INTERNATIONAL PUBLISHING INC. (the "Company"),
TELEGRAPH GROUP LIMITED (the "U.K. Borrower"), ▇▇▇▇▇▇▇▇▇ CANADIAN PUBLISHING
HOLDINGS INC. (the "Canadian Borrower" and, together with the Company and the
U.K. Borrower, the "Borrowers"), the Lenders listed on the signature pages
hereto (the "Lenders" and each a "Lender"), THE TORONTO-DOMINION BANK, as
Issuing Bank (the "Issuing Bank"), TORONTO DOMINION (TEXAS), INC., as
Administrative Agent, ▇▇▇▇▇▇▇▇▇ INTERNATIONAL INC. ("▇▇▇▇▇▇▇▇▇ International")
and ▇▇▇▇▇▇▇▇▇ INTERNATIONAL (CANADA) HOLDINGS CO. ("Canada Holdings");
W I T N E S E T H:
WHEREAS, the Borrowers, the Lenders, the Issuing Bank and the
Administrative Agent are parties to that certain Second Amended and Restated
Credit Agreement dated as of April 7, 1997 (the "Credit Agreement");
WHEREAS, the Canadian Borrower wishes to acquire the remaining shares in
Southam not currently owned by it and has requested the Lenders to consent to
such acquisition as the Approved Acquisition and to amend the Credit Agreement
as hereinafter set forth below;
NOW, THEREFORE, the parties hereto, in consideration of the premises and
the mutual agreements herein contained, hereby agree as follows:
SECTION 1 CREDIT AGREEMENT DEFINITIONS. Capitalized terms used herein that
are defined in the Credit Agreement shall have the same meaning when used
herein unless otherwise defined herein.
SECTION 2 AMENDMENTS TO CREDIT AGREEMENT. Effective on (and subject to the
occurrence of) the First Amendment Effective Date (as defined below), the
Credit Agreement shall be amended as follows:
2.1 Amendments to Section 1. Section 1 of the Credit Agreement
is amended as follows:
(a) Clause (a)(ii) of the definition of "Adjusted Operating
Cash Flow" is amended in its entirety to read as follows:
"(ii) net income attributable to dividends or other
distributions received from any Unrestricted Subsidiary or, prior to the
Southam Acquisition Date, Southam and its Subsidiaries and".
(b) The definition of "Acquisition Documents" is amended in
its entirety to read as follows:
"Acquisition Documents means the Approved Acquisition
Circular and any other documents relating to the Approved Acquisition which
have been approved by the Administrative Agent."
(c) The definition of "Approved Acquisition" is amended in
its entirety to read as follows:
"Approved Acquisition means the Acquisition of Southam
on the terms and conditions set forth in the Memorandum dated April 25, 1997
from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President Law & Finance of ▇▇▇▇▇▇▇▇▇ International
to the ▇▇▇▇▇▇▇▇▇ International Publishing Inc. Bank Group (provided that the
offer price may be Cdn$13.50
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in cash and equity in the form of HCPH Special Shares valued by HCPH at
Cdn$12.31 on the Mandatory Exchange Date)."
(d) Clause (d) of the definition of "Change in Control" is
amended in its entirety to read as follows:
"(d) ▇▇▇▇▇▇▇▇▇ International shall cease to own,
directly or indirectly, 50% of the Voting Stock and 100% of the non-Voting
Stock (excluding, prior to the Mandatory Exchange Date, the HCPH Special
Shares) of the Canadian Borrower or ▇▇▇▇▇▇▇▇▇ Inc. shall cease to own, directly
or indirectly, 50% of the Voting Stock of the Canadian Borrower."
(e) The definition of "Debt" is amended by inserting the
following at the end thereof:
"Debt shall not include the DMG Note so long as SHC and
Southam can satisfy their obligations thereunder by delivering title to the
Arizona Assets and any income attributable to the Arizona Assets is excluded
from Consolidated Net Income."
(f) Clause (d) of the definition of "Excess Cash Flow" is
amended in its entirety to read as follows:
"(d) Prior to the Tranche D Availability Date, any
Management Fees paid by Southam to the Company during such Fiscal Quarter."
(g) The definition of "Funded Debt" is amended in its
entirety to read as follows:
"Funded Debt means the sum of (a) all Debt of the
Company and its Restricted Subsidiaries in the Financial Group pursuant to
clauses (a), (b), (d), (e)(i), (g), (h), (i), (j), and (k) of the definition of
Debt plus, if applicable, Debt described in Section 10.7(o), minus, (b) Debt of
the Company to Restricted Subsidiaries in the Financial Group and Debt of
Restricted Subsidiaries in the Financial Group to the Company or to other
Restricted Subsidiaries. In the event the amount of Southam's net obligations,
if any, under the Hedging Agreements (determined on a ▇▇▇▇-to-market value for
such Hedging Agreements as determined by the Administrative Agent) exceeds
Cdn$10,000,000, the amount of such entire net obligations shall be included as
Funded Debt."
(h) The definition of "Financial Group" is amended in its
entirety to read as follows:
"Financial Group means (a) prior to the Tranche D
Availability Date, the Company and its Restricted Subsidiaries other than
Southam and its Subsidiaries and (b) on and after the Tranche D Availability
Date, the Company and its Restricted Subsidiaries (including Southam and its
Subsidiaries)."
(i) The definition of "Operating Cash Flow" is amended by
inserting the following at the end thereof:
"For purposes of calculating Operating Cash Flow on or
after the Tranche D Availability Date, 100% of the Operating Cash Flow of LMPL
shall be included. The Operating Cash Flow of other non-Wholly Owned Restricted
Subsidiaries of Southam which have not executed a Canadian Guaranty and a
Canadian Security Agreement shall be excluded."
(j) The definition of "Total Interest Expense" is amended by
inserting between the words "payments with
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respect to any guaranty of" and the words "Redeemable Capital Stock" the words:
"or dividends on".
(k) Section 1 is amended by adding the following definitions
in the proper alphabetical order:
Approved Acquisition Circular means the documents to be dispatched to the
Southam shareholders describing the Approved Acquisition and including the
disclosures required by the applicable regulatory authorities.
Arizona Assets means the assets to be conveyed by SHC to DMG USA, Inc.
pursuant to that certain forward share purchase agreement dated October 11,
1996 among SHC, Southex Arizona, Inc., Southam and DMG USA, Inc.
DMG Note means the promissory note dated October 11, 1996 in the original
principal amount of $4,000,000 made by SHC in favor of DMG USA, Inc. together
with the guaranty of even date therewith executed by Southam in favor of the
holder of such note.
First Amendment Agreement means the First Amendment Agreement dated May
12, 1997, among the Borrowers, the Lenders, the Issuing Bank, the
Administrative Agent, ▇▇▇▇▇▇▇▇▇ International and Canada Holdings.
HCPH Special Share Exchange Agreement means the Exchange Agreement to be
dated the Tranche D Availability Date between ▇▇▇▇▇▇▇▇▇ International and a
trustee acting on behalf of the holders of the HCPH Special Shares.
HCPH Special Shares means the non-voting, non-redeemable, non-retractable
Capital Stock of the Canadian Borrower which is issued in connection with the
Approved Acquisition, which HCPH Special Shares are mandatorily exchangeable on
the Mandatory Exchange Date into Class A Common Stock of ▇▇▇▇▇▇▇▇▇
International.
LMPL means Lower Mainland Publishing Ltd., a British Columbia corporation.
LMPL Redeemable Capital Stock means the Capital Stock of LMPL not owned by
Southam or its Subsidiaries which is subject to a put.
Mandatory Exchange Date means the date which is the earlier of (a) the
third anniversary of the Tranche D Availability Date, (b) the date on which any
Event of Default under Section 12.1.1 occurs and (c) the date on which the
Obligations are accelerated pursuant to Section 12.2.
SHC means Southam Holdings Corporation, a Delaware corporation.
SHC Preferred Shares means the Series C Preferred Shares of SHC.
Southam Acquisition Date means the date on which the Canadian Borrower
directly owns 100% of the Capital Stock of Southam or any Restricted Subsidiary
into which Southam is amalgamated.
Southam Medium Term Notes means the 7.9% Cdn$50,000,000 medium term notes
due June 29, 2000 issued by Southam.
Southam Pacific Press means the real estate,
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improvements, fixtures and related personal properties associated with a new
printing plant for Southam and its Restricted Subsidiaries in Vancouver,
British Columbia.
2.2 Section 6.1.2. Section 6.1.2(b) of the Credit Agreement is
amended by inserting the following at the beginning thereof: "Prior to the
Tranche D Availability Date,".
2.3 Section 6.1.3. Section 6.1.3 of the Credit Agreement is
amended in its entirety to read as follows:
"6.1.3 Application of Mandatory Commitment Reductions to
Tranches. Mandatory Commitment reductions pursuant to Section 6.1.2 shall be
applied against the mandatory reductions of the Commitments required by Section
6.1.2(f) in inverse order of reduction. Mandatory Commitment reductions
resulting from Asset Sales under Section 6.1.2(a) shall be applied dollar for
dollar (w) in the case of Asset Sales by the Canadian Borrower or any of its
Restricted Subsidiaries (other than Southam and its Restricted Subsidiaries or
after the Tranche D Availability Date (provided the Lenders have given their
consent), the sale of Capital Stock of Southam), to the Tranche A and Tranche C
Commitments, (x) in the case of Asset Sales by the U.K. Borrower or any of its
Restricted Subsidiaries, to the Tranche A and Tranche B Commitments, (y) in the
case of Asset Sales by Southam or any of its Restricted Subsidiaries, or, after
the Tranche D Availability Date (provided the Lenders have given their
consent), the sale of Capital Stock of Southam, to the Tranche A and Tranche D
Commitments, and (z) in the case of Asset Sales by the Company or any other
Restricted Subsidiary, to the Tranche A Commitment and pro rata among the
Tranche B, Tranche C and Tranche D Commitments. Mandatory Commitment reductions
resulting from events described in Section 6.1.2(d) or (e) shall be applied to
the Tranche A Commitment and, to the extent that any such Commitment would
exceed the Total Commitment, the Tranche B, Tranche C and Tranche D
Commitments."
2.4 Section 10.1.4. Section 10.1.4 of the Credit Agreement is
amended by inserting at the beginning thereof the following: "Prior to the
Tranche D Availability Date,".
2.5 Section 10.1.5. Section 10.1.5 of the Credit Agreement is
amended by inserting the following at the end thereof: "including, in the case
of clauses (a) and (b)above, all such reports, statements and communications by
or with respect to the Canadian Borrower.
2.6 Section 10.7. Section 10.7 of the Credit Agreement is
amended by inserting the following clauses at the end thereof:
"; (n) the Southam Medium Term Notes; (o) Debt of
Southam outstanding on the Tranche D Availability Date in connection with two
Hedging Agreements dated May 18, 1994 and July 26, 1994, respectively, having
an aggregate notional amount of Cdn$25,000,000; (p) the SHC Preferred Shares
outstanding on the Tranche D Availability Date; and (q) the LMPL Redeemable
Capital Stock."
2.7 Section 10.8. Section 10.8 of the Credit Agreement is
amended by inserting the following clause (l) at the end thereof:
"; and (l) Liens securing the Southam Medium Term Notes
provided such Liens are pari passu with Liens in favor of the Administrative
Agent and are on terms satisfactory to the Lenders."
2.8 Section 10.9. Section 10.9(a)(1) is amended by inserting at
the end of clause (D) but before the first proviso, the following:
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"plus (E) dividends on and redemptions of the SHC
Preferred Shares"
2.9 Section 10.10. Clause (iii) of the last paragraph of Section
10.10 is amended in its entirety to read as follows:
"(iii) Prior to the Tranche D Availability Date, neither
the Company nor any of its Restricted Subsidiaries in the Financial Group shall
make any Investments in Southam or any of its Subsidiaries and after the
Tranche D Availability Date, neither the Company nor any of its Restricted
Subsidiaries in the Financial Group shall make any Investments in any
Restricted Subsidiaries of Southam which are not Obligors."
2.10 Section 10.11. Section 10.11(d)(2) is amended in its
entirety to read as follows:
"(2) the earlier of the Southam Acquisition Date or the
termination of the Tranche D Commitment, shall not exceed $25,000,000
(excluding the Approved Acquisition);"
2.11 Section 10.18. Section 10.18 of the Credit Agreement is
amended as follows:
(i) Clause (a) is amended by inserting between the words
"Canadian Borrower" and the words "and (directly or indirectly)", the phrase
"(excluding, prior to the Mandatory Exchange Date, the HCPH Special Shares)";
and
(ii) Clause (c) is amended in its entirety to read as
follows:
"(c) The obligations of the U.K. Borrower, the Canadian
Borrower and the Acquisition Borrower hereunder and under the other Loan
Documents are (i) secured by (x) (A) 100% of the Capital Stock and Subsidiary
Notes of the U.K. Borrower and each of its Restricted Subsidiaries, (B) 100% of
the Capital Stock (excluding, prior to the Mandatory Exchange Date, the HCPH
Special Shares) and Subsidiary Notes of the Canadian Borrower, the Acquisition
Borrower and each of their Restricted Subsidiaries in the Financial Group
(other than Southam and its Subsidiaries), (C) (1) on the Amendment Effective
Date, not less than 42.8% of the Capital Stock of Southam outstanding on the
Amendment Effective Date, (2) on and after the Tranche D Availability Date all
of the Capital Stock and Subsidiary Notes of Southam owned by ▇▇▇▇▇▇▇▇▇
International or any of its Affiliates (which shall constitute not less than
83.36% of all Southam Capital Stock outstanding on such date), (3) on and after
the Southam Acquisition Date, 100% of the Capital Stock and Subsidiary Notes of
Southam and 100% of the Capital Stock (or such lesser amount as is owned by
Southam) and Subsidiary Notes of each of Southam's Restricted Subsidiaries and
(y) substantially all the assets (other than real property) of the U.K.
Borrower, the Canadian Borrower, the Acquisition Borrower and each of their
Restricted Subsidiaries in the Financial Group (other than Southam and its
Restricted Subsidiaries) and, upon the Southam Acquisition Date, substantially
all the assets (other than real property) of Southam and its Restricted
Subsidiaries and (ii) guaranteed by each other Borrower and such Borrower's
Restricted Subsidiaries in the Financial Group other than the Israeli
Subsidiaries and Dormant Subsidiaries and, prior to the Southam Acquisition
Date, Southam and its Restricted Subsidiaries, subject, in each case, to such
exceptions as the Administrative Agent or the Required Lenders may from time to
time permit."
2.12 Section 10.19. Notwithstanding the provisions of Section
10.19(j)of the Credit Agreement, the Canadian Borrower
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may amend its Organic Documents to authorize the HCPH Special Shares.
2.13 Sections 10.27 and 11.4.11. Notwithstanding the provisions
of Sections 10.27 and 11.4.11 of the Credit Agreement, Southam and its
Restricted Subsidiaries shall not be required to deliver Canadian Guarantees,
Canadian Security Agreements, and/or Canadian Pledge Agreements, provide
corporate documents or opinion letters with respect to the same or provide the
process agent letter until the Southam Acquisition Date.
2.14 Section 10.31. Section 10.31 of the Credit Agreement is
amended in its entirety to read as follows:
"10.31 Capital Expenditures. Not, and not permit any
Restricted Subsidiary in the Financial Group to, make or commit to make any
Capital Expenditure during any Fiscal Year, unless, after giving effect to such
Capital Expenditure, the aggregate amount of all Capital Expenditures made by
the Company and such Restricted Subsidiaries during such Fiscal Year shall not
exceed (a) prior to the Tranche D Availability Date, $40,000,000 and (b) after
the Tranche D Availability Date, $60,000,000. In addition, (x) the Company and
its Restricted Subsidiaries organized in the United States may make Capital
Expenditures during Fiscal Years 1997, 1998 and 1999 not exceeding $100,000,000
in the aggregate for the Sun-Times Plant and (y) provided the Tranche D
Availability Date has occurred, Southam and its Restricted Subsidiaries may
make Capital Expenditures during Fiscal Years 1997 and 1998 not exceeding
$50,000,000 in the aggregate for the Southam Pacific Press."
2.15 Section 10.32. Section 10.32 of the Credit Agreement is
amended as follows:
(i) Clause (b) of Section 10.32 is amended by deleting the
words "30 days of the Canadian Acquisition Date" and inserting "on or prior to
the Southam Acquisition Date" therefor.
(ii) Section 10.32 of the Credit Agreement is further
amended by adding the following new clauses at the end of clause (d) thereof:
"(e) One Business Date after the Southam Acquisition
Date, the Canadian Borrower shall (i) cause Southam and each of its Restricted
Subsidiaries to execute and deliver a Canadian Guarantee and a Canadian
Security Agreement; (ii) pledge and assign and cause Southam and its Restricted
Subsidiaries to pledge and assign to the Administrative Agent for the benefit
of the Lenders all Subsidiary Notes and all of the issued and outstanding
shares of Capital Stock (to the extent not already pledged) of Southam and its
Restricted Subsidiaries pursuant to a Canadian Pledge Agreement; and (iii)
provide such opinion letters, stock transfer forms, endorsements, financing
statements and other documents and instruments as in the opinion of the
Administrative Agent are appropriate (any such document or agreement executed
or issued pursuant to this Section 10.32(e) shall be a "Loan Document" for
purposes of this Agreement);
(f) If the Canadian Borrower acquires, under its bid for
all of the remaining shares in Southam, not less than ninety per cent of such
remaining shares, it shall promptly take all necessary action under section 206
of the Canadian Business Corporations Act to acquire the balance of such
remaining shares, and in any event shall promptly take all necessary action to
cause the Southam Acquisition Date to occur within 90 days of the Tranche D
Availability Date (or such later date within 120 days of the Tranche D
Availability Date
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as may be required by the inability of the Canadian Borrower to obtain the
requisite court dates within such 90-day time period, as certified to the
Administrative Agent by the Canadian Borrower setting forth the actual court
dates); and
(g) Five Business Days of the Tranche D Tranche
Availability Date, terminate any and all stock option plans of Southam and its
Subsidiaries."
2.16 Section 11.4.1. Section 11.4.1 of the Credit Agreement is
amended as follows:
(i) Clause (a) of Section 11.4.1 is amended in its entirety
to read as follows:
"(a) Sterling Collateral Documents. A Canadian
Guarantee, Canadian Security Agreement and Canadian Pledge Agreement executed
by Sterling Newspapers Company with respect to the obligations of the U.K.
Borrower and the Canadian Borrower and/or the Acquisition Borrower under
Tranche D."
(ii) Section 11.4.1 is further amended by inserting the
following clauses at the end thereof:
"(f) Amendment to Southam Organic Documents. A certified
copy of the Organic Documents of Southam evidencing the deletion of the
provisions entitled "Higher Vote for Certain Business Combinations" (relating
to the minority approval requirement for related party transactions).
(g) HCPH Special Share Exchange Agreement. The HCPH Special
Share Exchange Agreement executed by ▇▇▇▇▇▇▇▇▇ International and the other
parties thereto.
(h) ▇▇▇▇▇▇▇▇▇ International Resolutions. Certified
resolutions of the Board of Directors of ▇▇▇▇▇▇▇▇▇ International approving the
issuance of the Class A Common Stock of ▇▇▇▇▇▇▇▇▇ International relating to the
HCPH Special Share Exchange Agreement and reserving the requisite amount of
Class A Common Stock as required by the ▇▇▇▇▇▇▇▇▇ International Guarantee.
(i) Certificate of Depositary. A certificate of The R-M
Trust Company, as Depositary, certifying that as of such date not less than
66-2/3 of the Southam shares not owned by the Canadian Borrower have been
deposited pursuant to the Approved Acquisition Documents and not withdrawn.
(j) ▇▇▇▇▇▇▇▇▇ International Certificate. A certificate from
an authorized officer of ▇▇▇▇▇▇▇▇▇ International representing that if the
Mandatory Exchange Date were to occur on the Tranche D Availability Date
(assuming 100% of the minority shares of Southam were tendered), no Change of
Control would occur.
(k) Opinions of Counsel. Opinions of U.S. and Canadian
counsel covering such matters with respect to the Approved Acquisition
(including the issuance of the HCPH Special Shares and the Class A Stock of
▇▇▇▇▇▇▇▇▇ International) and the Loan Documents as the Administrative Agent and
its counsel deem appropriate.
(l) ▇▇▇▇▇▇▇▇▇ Inc. Undertaking. An undertaking from
▇▇▇▇▇▇▇▇▇ Inc. in form and substance satisfactory to the Administrative Agent
that in the event (whether pursuant to New York Stock Exchange Rules or
otherwise) the shareholders of ▇▇▇▇▇▇▇▇▇ International must
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approve issuance of Class A Stock pursuant to the HCPH Special Share Exchange
Agreement, ▇▇▇▇▇▇▇▇▇ Inc. will vote all of its ▇▇▇▇▇▇▇▇▇ International Voting
Stock in favor of such issuance.
(m) Southam Options. Evidence in form and substance
satisfactory to the Administrative Agent that all options under any option plan
granted by Southam or any of its Subsidiaries have been exercised or
terminated."
2.17 Section 12.1. Section 12.1 is amended by adding the
following new Section 12.1.15 at the end thereof:
"12.1.15 Southam Acquisition Date. The Southam
Acquisition Date shall not have occurred on or before the date which is 90 days
after the Tranche D Availability Date or such later date as may be permitted by
Section 10.32(f)."
SECTION 3 AMENDMENTS TO ▇▇▇▇▇▇▇▇▇ INTERNATIONAL GUARANTEE. Effective on
(and subject to the occurrence of) the First Amendment Effective Date (as
defined below), the ▇▇▇▇▇▇▇▇▇ International Guarantee is amended as follows:
3.1 Section 4.5. Section 4.5 of the ▇▇▇▇▇▇▇▇▇ International
Guarantee is amended by inserting the following at the end thereof: "or (d) the
HCPH Special Share Exchange Agreement".
3.2 Section 4. Section 4 of the ▇▇▇▇▇▇▇▇▇ International
Guarantee is further amended by inserting the following new sections at the end
thereof:
"Section 4.7 HCPH Special Shares. Promptly upon receipt
of any HCPH Special Shares pursuant to the HCPH Special Share Exchange
Agreement, pledge or cause the Subsidiary then owning the HCPH Special Shares
to pledge such HCPH Special Shares to the Administrative Agent for the benefit
of the Lenders pursuant to a Canadian Pledge Agreement in form and substance
satisfactory to the Administrative Agent.
Section 4.8 Registration Statement. Unless an exemption
from registration is available (and ▇▇▇▇▇▇▇▇▇ International shall have provided
an opinion of counsel satisfactory to the Administrative Agent to that effect),
▇▇▇▇▇▇▇▇▇ International shall file a Registration Statement covering the Class
A Common Stock to be issued pursuant to the HCPH Special Share Exchange
Agreement on or prior to the Tranche D Availability Date and shall cause such
Registration Statement to be declared effective as soon as practicable. In the
event an exemption ceases to be available, ▇▇▇▇▇▇▇▇▇ International shall
promptly, but in any event within 30 days of the date the exemption ceases to
be available, file a Registration Statement covering the Class A Common Stock
to be issued pursuant to the HCPH Special Share Exchange Agreement and cause
such Registration Statement to be declared effective as soon as practicable.
International shall maintain the effectiveness of such Registration Statement
(or another Registration Statement covering the shares to be issued pursuant to
the HCPH Special Share Exchange Agreement) at all times from the effective date
thereof until the Mandatory Exchange Date.
Section 4.9 Reservation of Shares. ▇▇▇▇▇▇▇▇▇
International shall at all times reserve and keep available, solely for
issuance upon exchange of the HCPH Special Shares, 100% of such number of
shares of Class A Common Stock of ▇▇▇▇▇▇▇▇▇ International as would be required
at such time for exchange of the HCPH Special Shares pursuant to the HCPH
Special Share Exchange Agreement and all such shares shall be duly authorized
for issuance at all times.
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Section 4.10 Shareholder Approval. ▇▇▇▇▇▇▇▇▇
International shall include a resolution approving the issuance of Class A
Shares pursuant to the HCPH Special Share Exchange Agreement in the first proxy
statement sent to its shareholders after the First Amendment Effective Date
(other than the proxy statement relating to the Canadian Acquisition as
contemplated by the Purchase Agreements). Upon the earlier of (a) an Event of
Default under Section 12.1.1 of the Credit Agreement and (b) the written
request of the Required Lenders, ▇▇▇▇▇▇▇▇▇ International shall promptly convene
a special shareholders' meeting to approve the issuance of Class A Stock
pursuant to the HCPH Special Share Exchange Agreement.
Section 4.11 Officer's Certificate. Concurrent with the
delivery of the reports required by Sections 4.1.1 and 4.1.2 and at such other
times as the Administrative Agent may request, deliver a certificate certifying
as to ▇▇▇▇▇▇▇▇▇ International's compliance with Sections 4.8, 4.9 and 4.10 of
this Guaranty (including supporting evidence)."
SECTION 4 REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders,
the Issuing Bank and the Administrative Agent to execute and deliver this
Amendment, each Borrower hereby represents and warrants to each Lender, the
Issuing Bank and to the Administrative Agent that:
(a) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from the execution and delivery or
effectiveness of this Amendment; and
(b) the warranties of the Borrowers contained in Section 9
of the Credit Agreement are true and correct as of the date hereof, with the
same effect as though made on such date.
SECTION 5 CONDITIONS TO EFFECTIVENESS. The amendments set forth in Section
2 and Section 3 hereof shall become effective on the date (the "First Amendment
Effective Date") when the Administrative Agent shall have received all of the
following, each in form and substance satisfactory to the Administrative Agent:
(a) ten counterparts of this Amendment executed by all of
the parties hereto;
(b) certified copies of the resolutions of the Board of
Directors of the Canadian Borrower and ▇▇▇▇▇▇▇▇▇ International authorizing the
Approved Acquisition;
(c) a certificate of an authorized officer of the Company as
to satisfaction of items set forth in Section 4 of this Amendment; and
(d) the Approved Acquisition Circular shall have been
approved by all the Lenders; and
(e) such other documents as the Administrative Agent or any
Lender may reasonably request.
SECTION 6 GENERAL.
6.1 Reaffirmation of Loan Documents. From and after the date
hereof, each reference that appears in any other Loan Document to the Credit
Agreement shall be deemed to be a reference to the Credit Agreement as amended
hereby. As amended hereby, the Credit Agreement is hereby reaffirmed, approved
and confirmed in every respect, and shall remain in full force and effect.
6.2 Counterparts; Effectiveness. This Amendment may be
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executed by the parties hereto in any number of counterparts and by the
different parties on separate counterparts and each such counterpart shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same Agreement.
6.3 Governing Law; Entire Agreement. THIS AMENDMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES. THIS AMENDMENT
CONSTITUTES THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY PRIOR AGREEMENTS WITH RESPECT
THERETO.
6.4 Loan Document. This Amendment is a Loan Document.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
▇▇▇▇▇▇▇▇▇ INTERNATIONAL PUBLISHING INC.
By:
Title:
▇▇▇▇▇▇▇▇▇ INTERNATIONAL INC.
By:
Title:
▇▇▇▇▇▇▇▇▇ INTERNATIONAL (CANADA)
HOLDINGS CO.
By:
Title:
TELEGRAPH GROUP LIMITED
By:
Title:
▇▇▇▇▇▇▇▇▇ CANADIAN PUBLISHING HOLDINGS
INC.
By:
Title:
TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:
Title:
THE TORONTO-DOMINION BANK, as Issuing
Bank
By:
Title:
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇), INC., as
Lender under Tranche A and Tranche B
By:
Title:
THE TORONTO-DOMINION BANK, as Canadian
Lender under Tranche C and Tranche D
By:
Title:
CIBC INC., as Lender under Tranche A
By:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE, as
Lender under Tranche B and Canadian
Lender under Tranche C and Tranche D
By:
Title:
THE BANK OF NOVA SCOTIA, as Lender
under Tranche A
By:
Title:
THE BANK OF NOVA SCOTIA, as Lender
under Tranche B
By:
Title:
THE BANK OF NOVA SCOTIA, as Canadian
Lender under Tranche C and Tranche D
By:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as
Lender under Tranche A and Tranche B
By:
Title:
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, as
Canadian Lender under Tranche C and
Tranche D
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Lender under
Tranche A and Tranche B
By:
Title:
BANK OF AMERICA CANADA, as Canadian
Lender under Tranche C and Tranche D
By:
Title: