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Sample Business ContractsHome: Sample Business Contracts: Table of Contents
EXECUTION COPY
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
dated as of December 23, 2002
among HOLLINGER INTERNATIONAL PUBLISHING INC., as Borrowers,
WACHOVIA BANK, N.A., as Administrative Agent, Issuing Bank and Security Trustee,
TORONTO DOMINION (TEXAS), INC., as Syndication Agent,
GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent,
and VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS PARTY HERETO,
WACHOVIA SECURITIES, INC.,
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FIFTH AMENDED AND RESTATED CREDIT AGREEMENT This FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 23, 2002 (as amended, supplemented or otherwise modified from time to time, this “Agreement”), is entered into among HOLLINGER INTERNATIONAL PUBLISHING INC., a Delaware corporation (the “Company”), TELEGRAPH GROUP LIMITED, a limited liability company incorporated under the laws of England and Wales (“Telegraph”), FIRST DT HOLDINGS LIMITED, a limited liability company incorporated under the laws of England and Wales (“FDTH”), the undersigned financial institutions and other Persons, together with their respective successors and assigns (collectively the “Lenders” and each a “Lender”), WACHOVIA BANK, N.A. (“Wachovia Bank”), as administrative agent, issuing bank and security trustee for the Lenders, and WACHOVIA SECURITIES, INC. (“Wachovia Securities”), as sole lead arranger and book runner (in such capacity, the “Sole Lead Arranger”), TORONTO DOMINION (TEXAS), INC., as Syndication Agent, and GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent. RECITALS WHEREAS, the Company, Telegraph, certain other subsidiaries of the Company, Toronto-Dominion (Texas), Inc. as Administrative Agent (in such capacity, as security trustee, or in any similar agency capacity specified in the Existing Credit Agreement (as defined below) and the other loan documents related thereto “Original Administrative Agent”), The Toronto-Dominion Bank as Issuing Bank (in such capacity, the “Original Issuing Bank”) and the Original Lenders (as defined below) entered into that certain Fourth Amended and Restated Credit Agreement dated as of April 30, 1999 (as amended or modified and in effect immediately prior to the Amendment Effective Date, the “Existing Credit Agreement”), whereby certain lenders party thereto (the “Original Lenders”) agreed to make certain credit extensions, including revolving loans, term loans and the issuance of letters of credit; WHEREAS, the Company has requested the Lenders to amend and restate the Existing Credit Agreement on the terms and conditions set forth in this Agreement, to set forth, among other things, the terms and conditions under which the Lenders hereafter will make credit extensions to certain of the Borrowers and to re-allocate all credit extensions from the Original Lenders to the Lenders in accordance with the terms hereof; it being the intention of the Borrowers, the Lenders and the Administrative Agent that this Agreement and the Loan Documents executed in connection herewith shall not effect the novation of the obligations of any Borrower under the Existing Credit Agreement but be merely a restatement and, where applicable, an amendment of and substitution for the terms governing such obligations hereafter; WHEREAS, the Existing Credit Extensions outstanding immediately prior to the Amendment Effective Date pursuant to the Existing Credit Agreement shall be deemed to be issued and outstanding hereunder for all purposes hereof and of the Loan Documents after giving effect to the Amendment Effective Date and shall thereafter be governed by the terms and conditions of this Agreement; and WHEREAS, the Credit Extensions are and shall be secured by the Collateral Documents and are and shall be guaranteed pursuant to the Guaranties (in each case as and to the extent set forth therein); NOW, THEREFORE, in consideration of the promises and the mutual agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
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the Existing Credit Agreement is hereby amended and restated in its entirety to read, and the parties hereto hereby agree, in each case effective as of the Amendment Effective Date, as follows: SECTION 1 Definitions. When used herein (including in the Preamble and the Recitals) the following terms shall have the following meanings (such definitions to be applicable to both the singular and plural forms of such terms): Acquisition means (a) any acquisition or merger by the Company or any Restricted Subsidiary of or with any other Person which owns or operates a Newspaper Business, which acquisition or merger has been approved and recommended in writing by the Board of Directors of the Person to be acquired or, if such Board approval is not required or practicable, which merger or acquisition otherwise has been made and consummated without any hostile or antagonistic measures, which Person shall then become consolidated with the Company or any such Restricted Subsidiary in accordance with GAAP, or (b) any acquisition by the Company or any Restricted Subsidiary of the assets of any Newspaper Business which acquisition has been approved and recommended in writing by the Board of Directors of the business whose assets are being acquired or, if such Board approval is not practicable, which acquisition otherwise has been made and approved without any hostile or antagonistic measures. Acquisition Debt means any Debt of the Company or any Restricted Subsidiary to any Person other than the Company or any Restricted Subsidiary (a) at any time or from time to time incurred, created or assumed in connection with any Acquisition or (b) existing at the time any Person (including an Unrestricted Subsidiary) becomes a Restricted Subsidiary but excluding in case of clauses (a) and (b) any Debt of the Borrowers to the Administrative Agent and the Lenders, or any of them, under this Agreement or under any other Loan Document. Administrative Agent means Wachovia Bank in its capacity as administrative agent and security trustee for the Lenders hereunder, any sub-agents which Wachovia Bank may appoint from time to time under any Facility and any successor thereto in such capacity. Affected Lender means any Lender that has given notice to the Company (which has not been rescinded) of (a) any obligation by an Obligor to pay any amount pursuant to Section 7.6 or 8.1 or (b) the occurrence of any circumstances of the nature described in Section 8.2 or 8.3. Affected Loan — see Section 8.3. Affiliate means, with respect to any specified Person, (a) any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person or (b) any other Person that owns, directly or indirectly, 10% or more of such Person’s equity ownership or Voting Stock or any officer or director of any such Person or other Person or with respect to any natural Person, any Person having a relationship with such Person by blood, marriage or adoption not more remote than first cousin. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing. Agreement — see the Preamble. Alternate Base Rate means, at any time, the greater of (a) the Federal Funds Rate plus 0.50% and (b) the U.S. Base Rate. 2
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Alternate Currencies means with (a) respect to Loans, Sterling and Euros, and (b) with respect to Letters of Credit, Sterling or Canadian Dollars. Amendment Effective Date — see Section 11.1. APHI means American Publishing Holdings Inc., a Delaware corporation. Applicable Commitment Fee Rate means 0.500% per annum. Applicable Margin means (a) with respect to Revolving Loans and Term A Loans, (i) in the case of Eurocurrency Loans the applicable rate set forth beneath “Eurocurrency Rate” on the Pricing Grid; provided, however, that regardless of the applicable rate set forth beneath “Eurocurrency Rate” on the Pricing Grid, the Applicable Margin at any time prior to the six month anniversary of the Amendment Effective Date will not be less than 3.00% and (ii) in the case of Floating Rate Loans, the applicable rate set forth beneath “Base Rate” on the Pricing Grid, provided, however, that regardless of the applicable rate set forth beneath “Base Rate” on the Pricing Grid, the Applicable Margin at any time prior to the six month anniversary of the Amendment Effective Date will not be less than 2.00%, (b) with respect to Term B Loans, (i) in the case of Eurocurrency Loans, 3.50% and (ii) in the case of Floating Rate Loans, 2.50%, as such rates may be adjusted pursuant to Section 3.1(f) and (c) with respect to Incremental Loans, (i) in the case of Eurocurrency Loans, the applicable rate set forth beneath “Eurocurrency Rate” on the Pricing Grid as amended by the applicable Supplement and (ii) in the case of Floating Rate Loans, the applicable rate set forth beneath “Base Rate” on the Pricing Grid as amended by the applicable Supplement. The Applicable Margin shall change on the third Business Day after the date the Administrative Agent receives a Compliance Certificate pursuant to Section 10.1.3 showing a change in the Total Leverage Ratio. Applicable Proceeds Amount means (a) in the case of Net Cash Proceeds of Asset Sales, 100% of such Net Cash Proceeds, (b) in the case of Debt Proceeds, 100% of such Debt Proceeds and (c) in the case of Net Cash Proceeds of Casualty Events, 100% of such Casualty Proceeds. Asset Reduction Date — see Section 6.1.2. Asset Sale means (a) any sale, lease, transfer or other disposition (including by way of merger or consolidation or Asset Swap) by the Company or any Restricted Subsidiary of any asset (including the sale of the Capital Stock of any Restricted Subsidiary) outside the ordinary course of business to a Person other than the Company or a Restricted Subsidiary Obligor, or (b) any sale or assignment with or without recourse of accounts receivable of the Company or any Restricted Subsidiary to a Person other than the Company or a Restricted Subsidiary Obligor. For purposes of this definition, the term “Asset Sale” shall not include any transfer of property and assets (i) having a market value of less than $1,000,000 (it being understood that if the market value of the properties or assets being transferred exceeds $1,000,000, the entire value and not just the portion in excess of $1,000,000 shall be deemed to have been the subject of an Asset Sale), (ii) which are obsolete (in the case of equipment) to the Company’s and such Restricted Subsidiaries’ businesses, or (iii) which occurred prior to the Amendment Effective Date. Asset Swap means the exchange of the assets of any Newspaper Business owned by the Company or any Restricted Subsidiary (“Traded Newspaper Assets”) as an entirety or substantially as an entirety for all or substantially all of the assets of another Newspaper Business (“Traded-For Newspaper Assets”) owned by the Person (or an Affiliate of the Person) to whom such Traded Newspaper Assets shall be transferred in such exchange. Assignment Agreement — see Section 15.9.1. 3
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Board of Directors means the board of directors or equivalent body of a Person or any duly authorized committee of such board or body. Borrower means each of the Company, Telegraph, FDTH and each Incremental Borrower (referred to collectively as the “Borrowers”). Business Day means any day on which commercial banks are open for commercial banking business in Charlotte, North Carolina and New York, New York and, in the case of a Business Day which relates to a Eurocurrency Loan, on which dealings in Dollars and Alternate Currencies are carried on in the London interbank market in London, England. Canadian Dollar and Cdn$ mean the lawful currency of Canada. Capital Expenditures means all expenditures which, in accordance with GAAP, would be required to be capitalized and shown on the consolidated balance sheet of the Company and its Restricted Subsidiaries, but excluding (a) Investments permitted by Section 10.10 and (b) expenditures made in connection with the replacement, substitution or restoration of assets to the extent financed from Net Cash Proceeds of Casualty Events. Capital Lease means, with respect to any Person, any lease of (or other agreement conveying the right to use) any real or personal property by such Person which, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of such Person. Capital Stock of any Person means any and all shares, interests, participations or other equivalents (however designated) of such Person’s equity interests. Cash Equivalent Investment means, at any time:
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