EXHIBIT 10.24
AMENDMENT NO.3 AND WAIVER
This Amendment No. 3 and Waiver (the "Amendment"), dated as of March
17, 2003 among MediaNews Group, Inc. (the "Borrower"), the banks listed on the
signature pages hereof (each a "Bank", and collectively, the "Banks") and the
Bank of New York, as administrative agent (the "Administrative Agent").
WITNESSETH:
WHEREAS, the Borrower, the Banks, the Administrative Agent the
Syndication Agent, the Documentation Agent and the Co-Documentation Agent are
parties to the Credit Agreement dated as of May 12, 1999, as amended and
restated as of January 2, 2001 (as amended prior to the date hereof, the
"Agreement") (capitalized terms used and not otherwise defined herein shall have
the meanings ascribed thereto in the Agreement); and
WHEREAS, the Borrower intends to contribute the assets of Carlsbad
Publishing Company, Las Cruces Publishing Company, Northwest New Mexico
Publishing Company and New Mexico-Texas MediaNews Group Interactive, Inc.
(collectively, the "New Mexico Subsidiaries") to [Texas/New Mexico Newspapers
Partnership], a Delaware general partnership (the "New Mexico Partnership") in
exchange for a general partnership interest in the New Mexico Partnership (the
"New Mexico Transaction") being issued to New Mexico-Texas MediaNews LLC, a
Delaware limited liability company and an indirect wholly-owned Restricted
Subsidiary of the Borrower (the "New Mexico LLC"), on the terms and conditions
contained in (i) the Contribution Agreement by and among Gannett Texas L.P., the
New Mexico Subsidiaries and the New Mexico Partnership and (ii) the Partnership
Agreement by and between Gannett Texas L.P. and the New Mexico LLC (the "New
Mexico Transaction Documents"); and
WHEREAS, the New Mexico Transaction would, but for the waivers
contained herein, be prohibited under certain negative covenants contained in
Section 4.10 of the Agreement (Disposition of Assets) and Section 4.11 of the
Agreement (Investments); and
WHEREAS, the Borrower has requested, and the Required Banks and the
Administrative Agent have agreed to, the amendments to, and the waiver of
certain of the Banks' rights under, the Agreement more fully set forth herein;
and
WHEREAS, such amendments and waivers shall be of benefit, either
directly or indirectly, to the Borrower;
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Waivers Regarding New Mexico Transaction. Upon and after the
Amendment Effective Date, the Banks hereby waive Sections 4.10 and 4.11 of the
Agreement solely to permit the consummation of the New Mexico Transaction on the
terms and conditions contained in the New Mexico Transaction Documents.
2. Agreement with respect to New Mexico Transaction. The Banks hereby
agree and acknowledge that the Investments resulting from the consummation of
the New Mexico Transaction shall not constitute a utilization of any portion of
the aggregate amount of Investments permitted under Section 4.11(h) of the
Agreement.
3. Amendments. Upon and after the Amendment Effective Date (as defined
in Section 5 hereof), Section 11.01 (Defined Terms) of the Agreement shall be
amended by restating subsection (C) of the definition of "Operating Cash Flow"
to read in its entirety as follows:
"(C) the lesser of (i) dividends received in cash from any
Person (other than each JOA) not constituting a Restricted Subsidiary
hereunder for such period and (ii) the Borrower's and its Restricted
Subsidiaries' percentage interest in the operating cash flow of such
Person;".
4. Representations and Warranties. In order to induce the Banks to
agree to the amendments set forth herein, the Borrower makes the following
representations and warranties, which shall survive the execution and delivery
of this Amendment:
(a) As of the date first referenced above, no Default has occurred and
is continuing or would exist immediately after giving effect to (i) the
amendments and waivers set forth herein or (ii) the consummation of the New
Mexico Transaction; and
(b) Each of the representations and warranties set forth in Article 3
of the Agreement are true and correct as though such representations and
warranties were made at and as of the Amendment Effective Date (as defined in
Section 5 hereof), except to the extent that any such representations or
warranties are made as of a specified date or with respect to a specified period
of time, in which case such representations and warranties shall be made as of
such specified date or with respect to such specified period. Each of the
representations and warranties made under the Agreement (including those made
herein) shall survive to the extent provided therein and not be waived by the
execution and delivery of this Amendment.
5. Effectiveness. This Amendment shall become effective as of the date
first referenced above on the date (the "Amendment Effective Date") on which (a)
the Administrative Agent shall have received from the Borrower payment in full
of all costs and expenses payable at or prior to such time pursuant to Section 6
hereof, or arrangements satisfactory to the Administrative Agent with respect to
the payment of such costs and expenses shall have been made, (b) the
Administrative Agent shall have received from the New Mexico LLC a Subsidiary
Guaranty Supplement and a Pledge Agreement, modified to include as Collateral
the New Mexico LLC's general partnership interest in the New Mexico Partnership,
each duly executed by the New Mexico LLC, (c) the Administrative Agent shall
have received from the Borrower a certified copy of the limited liability
company agreement of the New Mexico LLC and a certified copy of each of the New
Mexico Transaction Documents and (d) the Administrative Agent shall have
received this Amendment, executed and delivered by the Borrower, the Required
Banks and the Administrative Agent.
6. Payment of Expenses. The Borrower hereby agrees to pay all
reasonable costs
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and expenses incurred by the Administrative Agent in connection with
the preparation, execution and delivery of this Amendment and any other
documents or instruments which may be delivered in connection herewith,
including, without limitation, the reasonable fees and expenses of Akin
Gump Strauss Hauer & Feld LLP, special counsel for the Administrative
Agent.
7. Counterparts. This Amendment may be executed in
counterparts and by different parties hereto in separate counterparts,
each of which, when so executed and delivered, shall be deemed to be an
original and all of which, when taken together, shall constitute one
and the same instrument.
8. Ratification. The Agreement, as amended by this Amendment,
is and shall continue to be in full force and effect and is hereby in
all respects confirmed, approved and ratified.
9. Governing Law. The rights and duties of the Borrower, the
Banks and the Administrative Agent under this Amendment shall, in
accordance with New York General Obligations Law Section 5-1401, be
governed by the law of the State of New York.
10. Reference to Agreement. From and after the Amendment
Effective Date, each reference in the Agreement to "this Agreement,"
"hereof," "hereunder" or words of like import, and all references to
the Agreement in any and all agreements, instruments, documents, notes,
certificates and other writings of every kind and nature, shall be
deemed to mean the Agreement as modified and amended by this Amendment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first written above.
MEDIANEWS GROUP, INC., as Borrower
By: /s/ JAMES MCDOUGALD
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Name: James McDougald
Title: Treasurer
THE BANK OF NEW YORK,
as Administrative Agent and as a Bank
By: /s/ CYNTHIA L. ROGERS
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Name: Cynthia L. Rogers
Title: Vice President
BANK OF AMERICA, N.A., formerly BANK OF
AMERICA NT & SA., as Syndication Agent and as
a Bank
By: /s/ DERRICK C. BELL
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Name: Derrick C. Bell
Title: Principal
FIRST UNION NATIONAL BANK,
as Documentation Agent and as a Bank
By: /s/ BRUCE LOFTIN
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Name: Bruce Loftin
Title: Managing Director
FLEET NATIONAL BANK,
as Co-Documentation Agent and as a Bank
By: /s/ SRBUI SEFERIAN
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Name: Srbui Seferian
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS
(f.k.a. BANKERS TRUST COMPANY),
as a Bank
By: /s/ SUSAN LEFEVRE
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Name: Susan LeFevre
Title: Director
CIBC INC.,
as a Bank
By:
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Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By: /s/ ATTILA KOC
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Name: Attila Koc
Title: Senior Vice President
KEY CORPORATE CAPITAL INC.,
as a Bank
By: /s/ LAURA E. FINLIN
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Name: Laura E. Finlin
Title: Assistant Vice President
MELLON BANK, N.A.,
as a Bank
By: /s/ RAGHUNATHA REDDY
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Name: Raghunatha Reddy
Title: Lending Officer
PNC BANK NATIONAL ASSOCIATION,
as a Bank
By:
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Name:
Title:
WELLS FARGO BANK N. A.,
as a Bank
By: /s/ CATHERINE M. JONES
----------------------------------
Name: Catherine M. Jones
Title: Vice President
CITIZENS BANK.
as a Bank
By: /s/ FRANK J. GRUETER, III
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Name: Frank J. Grueter, III
Title: Senior Vice President
MIZUHO CORPORATE BANK, LTD.,
as a Bank
By: /s/ RAYMOND VENTURA
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Name: Raymond Ventura
Title: Senior Vice President
DAI-ICHI KANGYO BANK, LTD.,
as a Bank
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Bank
By: /s/ BRENDA S. INSULL
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Name: BRENDA S. INSULL
Title: AUTHORIZED SIGNATORY
BALLYROCK CD1,
as a Bank
By: Ballyrock Investment Advisors LLC, as
Collateral Manager
By:
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Name:
Title:
NUVEEN SENIOR INCOME FUND,
as a Bank
By: Nuveen Senior Loan Asset Management Inc.
By:
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Name:
Title: