Exhibit 10.3
EXECUTION COPY
AMENDED AND RESTATED
CREDIT AGREEMENT,
DATED AS OF MARCH 8, 2002,
AMONG
PENTON MEDIA, INC.,
AS BORROWER,
THE LENDERS PARTY HERETO,
BANK OF AMERICA, N.A.,
AS SYNDICATION AGENT,
BANK ONE, NA,
AND
FLEET NATIONAL BANK,
AS CO-DOCUMENTATION AGENTS,
AND
THE BANK OF NEW YORK,
AS ADMINISTRATIVE AGENT
---------------------------
BNY CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND BOOK RUNNER
TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS.................................................................................1
SECTION 1.1 DEFINED TERMS...........................................................................1
SECTION 1.2 CLASSIFICATION OF LOANS AND BORROWINGS.................................................23
SECTION 1.3 TERMS GENERALLY........................................................................23
SECTION 1.4 ACCOUNTING TERMS; GAAP.................................................................24
SECTION 1.5 CALCULATION OF CERTAIN FINANCIAL TERMS.................................................24
SECTION 1.6 COMMUNIC...............................................................................24
ARTICLE 2. THE CREDITS................................................................................25
SECTION 2.1 REVOLVING COMMITMENT...................................................................25
SECTION 2.2 LOANS AND BORROWINGS...................................................................25
SECTION 2.3 REQUESTS FOR BORROWINGS................................................................26
SECTION 2.4 FUNDING OF BORROWINGS..................................................................27
SECTION 2.5 TERMINATION AND REDUCTION OF REVOLVING COMMITMENTS.....................................27
SECTION 2.6 REPAYMENT OF LOANS; EVIDENCE OF DEBT...................................................28
SECTION 2.7 PREPAYMENT OF LOANS....................................................................30
SECTION 2.8 LETTERS OF CREDIT......................................................................32
SECTION 2.9 SWINGLINE LOANS........................................................................37
SECTION 2.10 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SETOFFS............................39
ARTICLE 3. INTEREST, FEES, YIELD PROTECTION, ETC......................................................40
SECTION 3.1 INTEREST...............................................................................40
SECTION 3.2 INTEREST ELECTIONS.....................................................................41
SECTION 3.3 FEES...................................................................................42
SECTION 3.4 ALTERNATE RATE OF INTEREST.............................................................44
SECTION 3.5 INCREASED COSTS; ILLEGALITY............................................................44
SECTION 3.6 BREAK FUNDING PAYMENTS.................................................................46
SECTION 3.7 TAXES..................................................................................46
SECTION 3.8 MITIGATION OBLIGATIONS.................................................................47
ARTICLE 4. REPRESENTATIONS AND WARRANTIES.............................................................48
SECTION 4.1 ORGANIZATION; POWERS...................................................................48
SECTION 4.2 AUTHORIZATION; ENFORCEABILITY..........................................................48
SECTION 4.3 GOVERNMENTAL APPROVALS; NO CONFLICTS...................................................48
SECTION 4.4 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE........................................49
SECTION 4.5 PROPERTIES.............................................................................49
SECTION 4.6 LITIGATION AND ENVIRONMENTAL MATTERS...................................................50
SECTION 4.7 COMPLIANCE WITH LAWS AND AGREEMENTS....................................................50
SECTION 4.8 INVESTMENT AND HOLDING COMPANY STATUS..................................................50
SECTION 4.9 TAXES..................................................................................51
SECTION 4.10 ERISA.................................................................................51
SECTION 4.11 DISCLOSURE............................................................................51
SECTION 4.12 SUBSIDIARIES..........................................................................51
SECTION 4.13 INSURANCE.............................................................................52
SECTION 4.14 LABOR MATTERS.........................................................................52
SECTION 4.15 SOLVENCY..............................................................................52
SECTION 4.16 SECURITY DOCUMENTS....................................................................52
SECTION 4.17 FEDERAL RESERVE REGULATIONS...........................................................53
ARTICLE 5. CONDITIONS.................................................................................54
SECTION 5.1 CLOSING DATE...........................................................................54
SECTION 5.2 EACH CREDIT EVENT......................................................................55
ARTICLE 6. AFFIRMATIVE COVENANTS......................................................................56
SECTION 6.1 FINANCIAL STATEMENTS AND OTHER INFORMATION.............................................56
SECTION 6.2 NOTICES OF MATERIAL EVENTS.............................................................59
SECTION 6.3 EXISTENCE; CONDUCT OF BUSINESS.........................................................59
SECTION 6.4 PAYMENT OF OBLIGATIONS.................................................................59
SECTION 6.5 MAINTENANCE OF PROPERTIES..............................................................59
SECTION 6.6 BOOKS AND RECORDS; INSPECTION RIGHTS; RECEIVABLES AUDITS...............................60
SECTION 6.7 COMPLIANCE WITH LAWS...................................................................60
SECTION 6.8 USE OF PROCEEDS........................................................................60
SECTION 6.9 INFORMATION REGARDING COLLATERAL.......................................................60
SECTION 6.10 INSURANCE.............................................................................61
SECTION 6.11 CASUALTY AND CONDEMNATION.............................................................61
SECTION 6.12 ADDITIONAL SUBSIDIARIES...............................................................62
SECTION 6.13 FURTHER ASSURANCES....................................................................62
SECTION 6.14 ENVIRONMENTAL COMPLIANCE..............................................................63
SECTION 6.15 INTEREST RATE PROTECTION ARRANGEMENTS.................................................63
SECTION 6.16 CONTROL AGREEMENTS....................................................................64
ARTICLE 7. NEGATIVE COVENANTS.........................................................................64
SECTION 7.1 INDEBTEDNESS...........................................................................64
SECTION 7.2 LIENS..................................................................................66
SECTION 7.3 FUNDAMENTAL CHANGES; LINES OF BUSINESS.................................................66
SECTION 7.4 INVESTMENTS, LOANS, ADVANCES, GUARANTEES, ACQUISITIONS AND CAPITAL
EXPENDITURES .....................................................................................67
SECTION 7.5 ASSET SALES; ISSUANCE OF EQUITY INTERESTS BY SUBSIDIARIES..............................68
SECTION 7.6 SALE AND LEASE-BACK TRANSACTIONS.......................................................68
SECTION 7.7 HEDGING AGREEMENTS.....................................................................69
SECTION 7.8 RESTRICTED PAYMENTS....................................................................69
SECTION 7.9 TRANSACTIONS WITH AFFILIATES...........................................................70
SECTION 7.10 RESTRICTIVE AGREEMENTS................................................................70
SECTION 7.11 CHANGES TO CERTAIN DOCUMENTS OR FISCAL YEAR...........................................70
SECTION 7.12 PREPAYMENTS OF INDEBTEDNESS...........................................................71
SECTION 7.13 INTEREST COVERAGE RATIO...............................................................71
SECTION 7.14 FIXED CHARGE COVERAGE RATIO...........................................................71
SECTION 7.15 LEVERAGE RATIO........................................................................71
SECTION 7.16 SENIOR LEVERAGE RATIO.................................................................72
ARTICLE 8. EVENTS OF DEFAULT..........................................................................72
ARTICLE 9. THE ADMINISTRATIVE AGENT...................................................................75
ARTICLE 10. MISCELLANEOUS.............................................................................77
SECTION 10.1 NOTICES...............................................................................77
SECTION 10.2 WAIVERS; AMENDMENTS...................................................................77
SECTION 10.3 EXPENSES; INDEMNITY; DAMAGE WAIVER....................................................78
SECTION 10.4 SUCCESSORS AND ASSIGNS................................................................80
SECTION 10.5 SURVIVAL..............................................................................82
SECTION 10.6 COUNTERPARTS; INTEGRATION; EFFECTIVENESS..............................................82
(ii)
SECTION 10.7 SEVERABILITY..........................................................................83
SECTION 10.8 RIGHT OF SETOFF.......................................................................83
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS............................83
SECTION 10.10 WAIVER OF JURY TRIAL.................................................................84
SECTION 10.11 HEADINGS.............................................................................84
SECTION 10.12 INTEREST RATE LIMITATION.............................................................84
SECTION 10.13 TREATMENT OF CERTAIN INFORMATION.....................................................85
SECTION 10.14 SAVINGS CLAUSE.......................................................................85
SECTION 10.15 RESTATEMENT DATE AFFIRMATIONS AND RELEASE............................................86
SECTION 10.16 AMENDMENT NO. 1 TO SECURITY AGREEMENT................................................86
SCHEDULES:
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Schedule B Existing Loans
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Schedule 2.1 Revolving Commitments
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Schedule 4.5 Real Property
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Schedule 4.6 Disclosed Matters
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Schedule 4.12 Subsidiaries
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Schedule 4.13 Insurance
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Schedule 7.1 Existing Indebtedness
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Schedule 7.2 Existing Liens
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Schedule 7.4 Existing Investments
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Schedule 7.10 Existing Restrictions
============================== ===============================================
EXHIBITS:
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============================== ===============================================
Exhibit A Form of Assignment and Acceptance
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Exhibit B Form of Opinion of Borrower's Counsel
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Exhibit C-1 Form of Note
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Exhibit C-2 Form of Swingline Note
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Exhibit D Form of Supplemental Security Agreement
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Exhibit E Form of Compliance Certificate
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Exhibit F Form of Borrowing Base Certificate
============================== ===============================================
(iii)
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 8, 2002, among
PENTON MEDIA, INC. (the "BORROWER"), the Lenders party thereto, BANK OF AMERICA,
N.A., as Syndication Agent, BANK ONE, NA and FLEET NATIONAL BANK, as
Co-Documentation Agents, and THE BANK OF NEW YORK, as Administrative Agent.
RECITALS
--------
A. Reference is made to the Credit Agreement, dated as of September 1,
1999, among PENTON MEDIA, INC., the LENDERS party thereto, BANC OF AMERICA
SECURITIES, LLC, as Syndication Agent, BANK ONE, N.A. (formerly known as THE
FIRST NATIONAL BANK OF CHICAGO) and FLEET NATIONAL BANK, as Co-Documentation
Agents, and THE BANK OF NEW YORK, as Administrative Agent (as amended,
supplemented or otherwise modified from time to time to, but excluding, the
Restatement Date, the "EXISTING CREDIT AGREEMENT").
B. Schedule B sets forth the amount, nature and character of the Loans
and Letters of Credit immediately prior to the Restatement Date and by executing
and delivering this Credit Agreement, the Borrower acknowledges that it is truly
and justly indebted to the Lenders therefor.
C. The parties hereto desire to amend and restate the Existing
Credit Agreement as provided herein.
D. For convenience, this Credit Agreement is dated as of March 8,
2002 (the "RESTATEMENT DATE"), and references to certain matters related to the
period prior thereto have been deleted.
The parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
-----------
Section 1.1 DEFINED TERMS
As used in this Credit Agreement, the following terms have the
meanings specified below:
"A TERM LOAN" means a Loan referred to as such on Schedule B.
"A TERM MATURITY DATE" means June 30, 2006.
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ABRY" means ABRY Mezzanine Partners LLC, a Delaware limited
liability company.
"ACCOUNT DEBTOR" means any Person obligated in respect of a
Receivable.
"ADJUSTED EBITDA" means, as of any date, EBITDA for the most
recent four consecutive fiscal quarter period in respect of which the financial
statements required by paragraphs (a) or (c) of Section 6.1 have been delivered,
adjusted on a consistent basis to give effect to all acquisitions, dispositions
and exchanges made by the Borrower and the Subsidiaries, and all issuances of
Equity Interests by the Subsidiaries, during such period as if each had occurred
on the first day of such period.
"ADJUSTED UNREPORTED EBITDA" means, as of any date, EBITDA for
the four consecutive fiscal quarter period then ended (or, if such date is not a
fiscal quarter end, for the four consecutive fiscal quarter period most recently
ended), adjusted on a consistent basis to give effect to all acquisitions,
dispositions and exchanges made by the Borrower and the Subsidiaries, and
issuances of Equity Interests by the Subsidiaries, during such period as if each
had occurred on the first day of such period.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period MULTIPLIED by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means BNY, in its capacity as
administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"AGENT" means the Administrative Agent, the Syndication Agent
or the Co-Documentation Agents, as the case may be.
"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day PLUS 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE MARGIN" means, at all times during the applicable
periods set forth below: (a) with respect to ABR Borrowings, the percentage set
forth below under the heading "ABR Margin", (b) with respect to Eurodollar
Borrowings, and fees payable under Section 3.3(b)(i), the percentage set forth
below under the heading "Eurodollar Margin and LC Fee":
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======================= ================= ================= ===================================
WHEN THE LEVERAGE
RATIO IS GREATER THAN
OR EQUAL TO AND LESS THAN ABR MARGIN EURODOLLAR MARGIN AND LC FEE
- ----------------------- ----------------- ----------------- -----------------------------------
5.00:1.00 3.000% 4.250%
- ----------------------- ----------------- ----------------- -----------------------------------
4.00:1.00 5.00:1.00 2.500% 3.750%
- ----------------------- ----------------- ----------------- -----------------------------------
3.00:1.00 4.00:1.00 2.000% 3.250%
- ----------------------- ----------------- ----------------- -----------------------------------
3.00:1.00 1.500% 2.750%
======================= ================= ================= ===================================
Changes in the Applicable Margin resulting from a change in the Leverage Ratio
shall be based upon the certificate most recently delivered under Section 6.1(e)
and shall become effective on the Rate Change Date with respect thereto.
Notwithstanding anything to the contrary in this definition, if the Borrower
shall fail to deliver to the Administrative Agent any such certificate on or
prior to any date required hereby, the Leverage Ratio for purposes of this
defined term only shall be deemed to be greater than 5.00:1.00 from and
including such date to the earlier of (a) delivery of such certificate, and (b)
the next succeeding Rate Change Date.
"APPLICABLE PERCENTAGE" means, with respect to any applicable
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"APPROVED FUND" means, with respect to any Lender that is a
fund that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4), and accepted by the Administrative Agent,
substantially in the form of Exhibit A or any other form approved by the
Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the earlier of the Revolving Maturity Date and
the date of termination of the Revolving Commitments.
"AVAILABLE REVOLVING AMOUNT" means, as of any date:
(a) (i) prior to the earlier of the Term Loan
Prepayment Date and the Full Availability Date, an amount equal to the lesser of
(A) the aggregate sum of the Revolving Commitments and (B) the sum of (1)
$15,000,000, PLUS (2) on and after the Increased Availability Date, $5,000,000,
PLUS (3) on and after the Additional Equity Date, $10,000,000, and (ii) prior to
the Term Loan Prepayment Date and on or after the Full Availability Date, the
aggregate sum of the Revolving Commitments; and
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(b) on and after the Term Loan Prepayment Date, an
amount equal to the lesser of (i) the aggregate sum of the Revolving Commitments
and (ii) the Borrowing Base.
For purposes of this defined term only, the following terms shall have the
following meanings:
"ADDITIONAL EQUITY DATE" means the third Business Day
after the date, if any, upon which the Borrower shall have prepaid the
Term Loans with all of the Net Proceeds of one or more issuances of
Equity Interests (other than the initial issuance of New Preferred
Stock and other than issuances of Equity Interests by the Borrower
contemplated by paragraph (d) of Article 8) by the Borrower the
aggregate gross proceeds in respect of which equal or exceed
$10,000,000.
"FULL AVAILABILITY DATE" means the third Business Day
following the date, if any, upon which the Borrower shall deliver to
the Administrative Agent and the Lenders the financial statements
required under Section 6.1(a) or Section 6.1(c), as the case may be,
and the compliance certificate required under Section 6.1(e), in each
case in respect of the first fiscal quarter ending after the Increased
Availability Date at which the Leverage Ratio is less than 5.00:1.00.
"INCREASED AVAILABILITY DATE" means the third
Business Day after the date, if any, upon which the Borrower shall
deliver to the Administrative Agent and the Lenders the financial
statements required under Section 6.1(c) and the compliance certificate
required under Section 6.1(e), in each case in respect of the fiscal
quarter ending June 30, 2002.
"B TERM LOAN" means a Loan referred to as such on Schedule B.
"B TERM MATURITY DATE" means June 30, 2007.
"BNY" means The Bank of New York and its successors.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWER" means Penton Media, Inc., a Delaware corporation.
"BORROWING" means (a) Revolving Loans, A Term Loans or B Term
Loans of the same Type made, converted or continued on the same date and, in the
case of Eurodollar Loans, as to which a single Interest Period is in effect or
(b) a Swingline Loan.
"BORROWING BASE" means, as of any date, an amount equal to 80%
of Eligible Receivables.
"BORROWING BASE CERTIFICATE" a certificate of a Financial
Officer, substantially in the form of Exhibit F, delivered pursuant to Section
6.1(j).
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"BORROWING REQUEST" means a request by the Borrower for a
Borrowing in accordance with Section 2.3.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed, PROVIDED that, when used in connection with a
Eurodollar Loan, the term "BUSINESS DAY" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"CAPITAL EXPENDITURES" of any Person means expenditures
(whether paid in cash or other consideration or accrued as a liability) for
fixed or capital assets (excluding any capitalized interest and any such asset
acquired in connection with normal replacement and maintenance programs properly
charged to current operations and excluding any replacement assets acquired with
the proceeds of insurance or of condemnation or eminent domain awards) made by
such Person.
"CAPITAL LEASE OBLIGATIONS" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" means (a) the beneficial ownership,
directly or indirectly, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof), of shares representing
35% or more of the aggregate ordinary voting power represented by the issued and
outstanding securities of the Borrower, (b) the occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were not (i) nominated by the board of directors of the Borrower as
of the Restatement Date, (ii) appointed by directors so nominated, or (iii) on
such board of directors as of the Restatement Date, or (c) the occurrence of any
change of control or any similar circumstance which, under any of (i) the Senior
Secured Indenture, (ii) the Subordinated Public Debt Indenture, or (iii) the
certificates of incorporation of the Borrower or any Subsidiary or certificate
of designation with respect to any class of preferred stock of thereof
(including the New Preferred Stock), in any case which results in an obligation
of the Borrower to prepay, purchase, offer to purchase, redeem or defease any
such Indebtedness or any such preferred stock.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of the Existing Credit Agreement, (b) any change in
any law, rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the date of the Existing Credit Agreement or
(c) compliance by any Credit Party (or, for purposes of Section 3.5(b), by any
lending office of such Credit Party or by such Credit Party's holding company,
if any) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the date of the
Existing Credit Agreement.
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"CLASS", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, A Term Loans, B Term Loans or Swingline Loans.
"CLOSING DATE" has the meaning assigned to such term in
Section 5.1.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COLLATERAL" means any and all "Collateral" or "Mortgaged
Property", as defined in any applicable Security Document.
"COMMITMENT" means, with respect to any Lender, such Lender's
Revolving Commitment.
"COMMITMENT FEE MARGIN" means, at all times during the
applicable periods set forth below, the percentage set forth below under the
heading "Commitment Fee" and adjacent to such period:
======================== ================ =========================
WHEN THE AND EQUAL
LEVERAGE RATIO TO OR LESS
IS GREATER THAN THAN COMMITMENT FEE
- ------------------------ ---------------- -------------------------
4.00:1.00 0.500%
- ------------------------ ---------------- -------------------------
4.00:1.00 0.375%
======================== ================ =========================
Changes in the Commitment Fee Margin resulting from a change in the Leverage
Ratio shall be based upon the certificate most recently delivered under Section
6.1(e) and shall become effective on the Rate Change Date with respect thereto.
Notwithstanding anything to the contrary in this definition, if the Borrower
shall fail to deliver to the Administrative Agent any such certificate on or
prior to any date required hereby, the Leverage Ratio for purposes of this
defined term only shall be deemed to be greater than 4.00:1.00 from and
including such date to the earlier of (a) delivery of such certificate, and (b)
the next succeeding Rate Change Date.
"COMMUNIC" means ComMunic GmbH Kongresse-Messen Seminare, a
limited liability company organized under of laws of Germany.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. The terms "Controlling" and "Controlled" have meanings correlative
thereto.
"CREDIT AGREEMENT" means this Amended and Restated Credit
Agreement.
"CREDIT PARTIES" means the Administrative Agent, the Issuing
Bank and the Lenders.
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"DEFAULT" means any event or condition which constitutes an
Event of Default or that upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings,
the environmental matters and the material adverse changes disclosed in Schedule
4.6.
"DISQUALIFIED EQUITY" means any Equity Interest of any Person
that, by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable at the option of the holder thereof), or upon
the happening of any event, (a) matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the date (the "current pay
date") that is one year and one day after the B Term Maturity Date, or (b)
provides that any dividend or other distribution shall be made thereon or in
respect thereof (other than in the form of Equity Interests of such Person that
would not otherwise constitute "Disqualified Equity") on or prior to the current
pay date; provided, however, that Equity Interests that would constitute
Disqualified Equity solely because the holders thereof have the right to require
such Person to repurchase or redeem such Equity Interests upon the occurrence of
one or more certain events shall not constitute Disqualified Equity if the terms
of such Equity Interest provide that such Person may not repurchase or redeem
any such Equity Interest unless such repurchase or redemption complies with
Section 7.8 of this Credit Agreement. For purposes of this Credit Agreement, the
New Preferred Stock and other Equity Interests issued on substantially the same
terms shall not be deemed to be Disqualified Equity.
"DOLLARS" or "$" refers to lawful money of the United States
of America.
"DOMESTIC SUBSIDIARY" means each Subsidiary organized under
the laws of the United States of America or any state thereof.
"EBITDA" means, subject to Section 1.5, with respect to any
period (a) net income for such period, MINUS (b) the sum of, without
duplication, for such period (i) extraordinary gains, (ii) non-cash additions to
income, and (iii) non-recurring additions to income, PLUS (c) the sum of,
without duplication, for such period (i) extraordinary losses, (ii) interest
expense, (iii) depreciation, (iv) amortization, (v) provision for income taxes,
(vi) non-cash charges against income, and (vii) non-recurring charges to income;
in each case with respect to the Borrower and the Subsidiaries on a consolidated
basis in accordance with GAAP.
"EFFECTIVE DATE" means September 1, 1999.
"ELIGIBLE RECEIVABLES" means the outstanding balance of those
Receivables of any Loan Party that have been earned by performance arising out
of sales of merchandise, goods or services (including advertising, publication
subscriptions and trade shows) in the ordinary course of business established by
such Loan Party, which constitute good and valid accounts representing
undisputed bona fide indebtedness incurred by an Account Debtor for a fixed sum
as set forth in the invoice relating thereto, which are and at all times shall
continue to be acceptable to the Administrative Agent in all respects in
accordance with its reasonable credit judgment, which are not in dispute, and
that constitute
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Collateral in which the Secured Parties have a fully perfected first priority
Lien (other than as a result of the failure to comply with the federal
Assignment of Claims Act or similar laws with respect to Receivables, the
Account Debtor on which is a Governmental Authority); PROVIDED, HOWEVER, that a
Receivable shall in no event be included in calculating Eligible Receivables if:
(a) in the case of a Receivable arising from such
Loan Party's publishing business, such Receivable is more than (i) 120 days past
due according to the original terms of sale, or (ii) 120 days past the original
invoice date thereof; or
(b) any representation or warranty contained in any
Loan Document with respect to such Receivable or any related Account Debtor is
not true and correct; or
(c) any Account Debtor on such Receivable has
disputed liability or made any claim with respect to such Receivable, but solely
to the extent of such dispute or claim; or
(d) any Account Debtor on such Receivable has: (i)
filed a petition for bankruptcy or any other relief under the bankruptcy code or
any other law relating to bankruptcy, insolvency, reorganization or relief of
debtors; (ii) made an assignment for the benefit of creditors; (iii) had filed
against it any petition or other application for relief under the bankruptcy
code or any such other law; (iv) failed, suspended business operations, become
insolvent, or called a meeting of its creditors for the purpose of obtaining any
financial concession or accommodation; or (v) had or suffered a receiver or a
trustee to be appointed for all or a significant portion of its assets or
affairs; or
(e) the Account Debtor is located outside the United
States; or
(f) the sale to such Account Debtor on such
Receivable is on a bill-on-hold, guaranteed sale, sale-and-return,
sale-on-approval or consignment basis; or
(g) such Receivable is subject to a Lien in favor of
any Person other than the Administrative Agent for the benefit of the Secured
Parties (other than a Permitted Lien which is subordinate to Liens granted to
the Administrative Agent for the benefit of the Secured Parties); or
(h) such Receivable is subject to any deduction,
offset, counterclaim, full or partial refund, return privilege or other
conditions, other than volume sales discounts given in the ordinary course of
such Loan Party's business, but only to the extent of such potential deduction,
offset, counterclaim, refund, return privilege or other conditions; or
(i) the Account Debtor on such Receivable is located
in New Jersey or Minnesota, unless such Loan Party (i) has received a
certificate of authority to do business and is in good standing in such state,
or (ii) has filed a Notice of Business Activities Report with the appropriate
office or agency of such state for the current year; or
(j) the Account Debtor on such Receivable is an
officer, employee or Affiliate of any Loan Party; or
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(k) such Receivable is denominated in a currency
other than Dollars; or
(l) such Receivable is not evidenced by an invoice or
other writing in form acceptable to the Administrative Agent, in its sole
discretion; or
(m) except with respect to Receivables arising out of
publication subscriptions and trade shows, any Loan Party, in order to be
entitled to collect such Receivable, is required to perform any additional
service for, or perform or incur any additional obligation to, the Person to
whom or to which it was made; or
(n) such Receivable has been placed with a third
party for collection or such Receivable has been determined by the applicable
Loan Party to be uncollectable; or
(o) the total Receivables of such Account Debtor to
the Loan Parties (taken as a whole) represent more than 10% of the Eligible
Receivables of the Loan Parties (taken as a whole), but only to the extent of
the excess over 10% of the Eligible Receivables.
"ENVIRONMENTAL LAWS" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of any Loan Party directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"EQUITY INTEREST" means (i) shares of corporate stock,
partnership interests, membership interests, and any other interest that confers
on a Person the right to receive a share of the profits and losses of, or
distribution of assets of, the issuing Person, and (ii) all warrants, options or
other rights to acquire any Equity Interest set forth in clause (i) of this
defined term.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower or any Subsidiary, is treated as
a single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
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"ERISA EVENT" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any ERISA Affiliate
of any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
the Borrower or any ERISA Affiliate of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article 8.
"EXCLUDED TAXES" means, with respect to any Credit Party or
any other recipient of any payment to be made by or on account of any obligation
of any Loan Party under any Loan Document, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Credit Party, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which such Loan Party is located and (c) in the case of a
Foreign Lender, any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Credit
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 3.7(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from such Loan Party with respect to such withholding tax pursuant to
Section 3.7(a).
"EXISTING CREDIT AGREEMENT" has the meaning set forth in
Recital A.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, a rate per
annum (expressed as a decimal, rounded upwards, if necessary, to the next higher
1/100 of 1%) equal to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day, PROVIDED that (i) if the
day for which such rate is to be determined is not a Business Day, the Federal
Funds Effective Rate for such day shall be such rate
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on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (ii) if such rate is not so published for any
day, the Federal Funds Effective Rate for such day shall be the average of the
quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"FIXED CHARGE COVERAGE RATIO" means, as of any fiscal quarter
end, the ratio of (i) EBITDA to (ii) Fixed Charges, in each case for the period
comprised of the four consecutive fiscal quarters then ended as reflected in the
financial statements in respect thereof delivered pursuant to Section 6.1(a) or
6.1(c), as the case may be. For purposes of the calculation of the Fixed Charge
Coverage Ratio only, as of each fiscal quarter ending on or prior to December
31, 2003, the following shall be added to EBITDA: (a) the amount of cash and
cash equivalents of the Borrower and the Subsidiary Guarantors on a consolidated
basis at such fiscal quarter end in excess of $5,000,000, and (b) the lesser of
(x) the excess, if any, of the Available Revolving Amount over the Revolving
Credit Exposure at such fiscal quarter end and (y) if the amount determined
under clause (x) above would, if borrowed, result in a Default under Section
7.15 or Section 7.16, the largest amount of the amount determined under clause
(x) which, if borrowed, would not cause such a Default.
"FIXED CHARGES" means, subject to Section 1.5, for any period,
the sum of, without duplication, each of the following with respect to the
Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP:
(i) Interest Expense, (ii) all expenditures during such period which would be
characterized as "Additions to property, plant and equipment" or similar
nomenclature, (iii) tax payments (including estimated tax payments), (iv) all
Restricted Payments paid pursuant to Section 7.8(c), and (v) all Required
Principal Payments.
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than that in which the applicable Loan Party is
located. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"GAAP" means generally accepted accounting principles in
effect from time to time in the United States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or
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advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor as to enable the primary obligor to pay such Indebtedness
or other obligation or (d) as an account party in respect of any letter of
credit or letter of guaranty issued to support such Indebtedness or obligation,
PROVIDED that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guaranteed" has a
meaning correlative thereto.
"GUARANTEE AGREEMENT" means the Guarantee Agreement, dated as
of September 1, 1999, among the Subsidiary Guarantors and the Administrative
Agent, for the benefit of the Secured Parties.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price swap,
cap, collar, hedging or other like arrangement.
"INDEBTEDNESS" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid
(including, without limitation, margin debt), (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all Capital Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty, (j) all obligations, contingent or otherwise, of such
Person in respect of bankers' acceptances, (k) all Disqualified Equity issued by
such Person, and (l) all obligations of such Person to pay a specified purchase
price for goods or services whether or not delivered or accepted (e.g.,
take-or-pay obligations) or similar obligations. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
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"INDEMNITEE" has the meaning assigned to such term in Section
10.3(b).
"INTERCREDITOR AGREEMENT" has the meaning set forth in Section
7.1(a)(viii).
"INTEREST COVERAGE RATIO" means, as of any fiscal quarter end,
the ratio of (i) EBITDA to (ii) Interest Expense, in each case for the period
comprised of the four consecutive fiscal quarters then ended as reflected in the
financial statements in respect thereof delivered pursuant to Section 6.1(a) or
6.1(c), as the case may be. For purposes of the calculation of the Interest
Coverage Ratio only, as of each fiscal quarter ending on or prior to December
31, 2003, the following shall be added to EBITDA: (a) the amount of cash and
cash equivalents of the Borrower and the Subsidiary Guarantors on a consolidated
basis at such fiscal quarter end in excess of $5,000,000, and (b) the lesser of
(x) the excess, if any, of the Available Revolving Amount over the Revolving
Credit Exposure at such fiscal quarter end and (y) if the amount determined
under clause (x) above would, if borrowed, result in a Default under Section
7.15 or Section 7.16, the largest amount of the amount determined under clause
(x) which, if borrowed, would not cause such a Default.
"INTEREST ELECTION REQUEST" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 3.2.
"INTEREST EXPENSE" means, subject to Section 1.5, for any
period, the sum, without duplication, of each of the following with respect to
the Borrower and the Subsidiaries, determined on a consolidated basis in
accordance with GAAP: (i) all interest that accrued or accreted during such
period, regardless of whether it shall have been paid, (ii) the amount of debt
discounts amortized during such period, (iii) the amortization during such
period of all fees payable in connection with the incurrence of any debt
(including any Indebtedness), and (iv) the interest component of any rents
payable under capital leases.
"INTEREST PAYMENT DATE" means (i) with respect to any ABR
Loan, the last day of each calendar month, (ii) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which
such Loan is a part, (iii) as to all Revolving Loans, the Revolving Maturity
Date, (iv) as to all A Term Loans, the A Term Maturity Date, (v) as to all B
Term Loans, the B Term Maturity Date, and (vi) with respect to any Swingline
Loan, the day that such Swingline Loan is required to be repaid.
"INTEREST PERIOD" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one month
thereafter, PROVIDED that (i) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (ii)
any Interest Period pertaining to a Eurodollar Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which
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such Borrowing is made and, thereafter, shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"INTEREST RATE PROTECTION ARRANGEMENT" means any interest rate
swap, cap or collar arrangement or any other derivative product customarily
offered by banks to their customers in order to reduce the exposure of such
customers to interest rate fluctuations, as the same may be amended,
supplemented or otherwise modified from time to time.
"ISSUING BANK" means BNY, in its capacity as issuer of Letters
of Credit.
"LC DISBURSEMENT" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time PLUS (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"LENDERS" means the Persons listed on Schedule 2.1 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LETTER OF CREDIT" means any letter of credit issued (and any
successive renewals thereof) pursuant to this Credit Agreement.
"LEVERAGE RATIO" means, at any date of determination, the
ratio of (i) Total Debt (excluding the Subordinated ABRY Debt) on such date to
(ii) (a) on the date of each Borrowing and each issuance, amendment, renewal or
extension of a Letter of Credit, Adjusted Unreported EBITDA on such date, and
(b) on all other dates, Adjusted EBITDA on such date.
"LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate of interest per annum as determined by the
Administrative Agent, equal to the rate, as reported by BNY to the
Administrative Agent, quoted by BNY to leading banks in the London interbank
market as the rate at which BNY is offering dollar deposits in an amount
approximately equal to its ratable share of such Eurodollar Borrowing for dollar
deposits with a maturity comparable to such Interest Period at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
-14-
"LOAN DOCUMENTS" means this Credit Agreement, the Guarantee
Agreement and the Security Documents.
"LOAN PARTIES" means the Borrower and the Subsidiary
Guarantors.
"LOANS" means the loans made by the Lenders pursuant to this
Credit Agreement.
"MARGIN STOCK" has the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a whole, (b) the
ability of the Loan Parties, taken as a whole, to perform their obligations
under any Loan Document or (c) the rights of or benefits available to any Credit
Party under any Loan Document.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than
Indebtedness under the Loan Documents) or obligations in respect of one or more
Hedging Agreements, of any one or more of the Borrower and the Subsidiaries in
an aggregate principal amount exceeding $5,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary, as applicable, would be required to pay if such
Hedging Agreement were terminated at such time.
"MORTGAGE" means a mortgage, deed of trust, assignment of
leases and rents or other security document granting a Lien on any Mortgaged
Property to secure the Obligations. Each Mortgage shall be satisfactory in form
and substance to the Administrative Agent.
"MORTGAGED PROPERTY" means and includes each parcel of real
property and improvements thereto with respect to which a Mortgage is granted
pursuant to Sections 6.12 or 6.13.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any event, (a) the cash
proceeds received in respect of such event, including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, (iii) in the case of a condemnation or
similar event, condemnation awards and similar payments, and (iv) in the case of
the issuance of Equity Interests, any cash subscription payment or other cash
consideration paid in connection therewith, (b) net of the sum of (i) all
reasonable fees (including, with respect to Equity Interests, underwriting
commissions or placement fees) and out-of-pocket expenses paid by the Borrower
and the Subsidiaries to third parties in connection with such event, (ii) in the
case of a sale, transfer, lease or other disposition of an asset, the amount of
all payments required to be made by the Borrower and the Subsidiaries as a
result of such event to repay Indebtedness (other than the Loans) secured by
such asset or otherwise subject to mandatory payment as a result of such event
and (iii) the amount of all taxes paid (or reasonably estimated to be payable)
by the Borrower and the Subsidiaries, and the amount of any reserves established
by the Borrower and the Subsidiaries to fund contingent liabilities
-15-
reasonably estimated to be payable, in each case during the year that such event
occurred or the next succeeding year and that are directly attributable to such
event (as determined reasonably and in good faith by the chief financial officer
of the Borrower), PROVIDED, HOWEVER, that, subject to Section 6.11, with respect
to any casualty or other insured damage or condemnation or similar proceeding,
if the Borrower shall deliver a certificate of a Financial Officer to the
Administrative Agent within five Business Days of such casualty or other insured
damage or condemnation or similar proceeding setting forth the Borrower's intent
to use the proceeds thereof to replace or repair the assets that are the subject
of such casualty or other insured damage or condemnation or similar proceeding
within 180 days of receipt of such proceeds and no Event of Default shall have
occurred and shall be continuing at the time of such certificate or at the
proposed time of the application of such proceeds, such proceeds shall not
constitute Net Proceeds except to the extent not so used at the end of such
180-day period, at which time such proceeds shall be deemed Net Proceeds.
"NEW PREFERRED STOCK" means the Series B Convertible Preferred
Stock of the Borrower issued pursuant to the New Preferred Stock Documents.
"NEW PREFERRED STOCK DOCUMENTS" means, collectively, the
Certificate of Designations, dated March 10, 2002, with respect to the New
Preferred Stock, the Preferred Stock Purchase Agreement, dated as of March 10,
2002, among the Borrower and the purchasers named therein (the "PURCHASERS"),
the Warrants to Purchase Common Stock of Penton Media, Inc., each dated March
10, 2002, the Registration Rights Agreement, dated as of March 10, 2002, among
the Borrower and the Purchasers, and each other agreement, instrument or other
document executed or delivered in connection therewith.
"NOTES" means, (i) with respect to each Lender, a promissory
note evidencing such Lender's Loans payable to the order of such Lender (or, if
required by such Lender, to such Lender and its registered assigns)
substantially in the form of Exhibit C-1, and (ii) with respect to the Swingline
Lender, a promissory note evidencing the Swingline Lender's Swingline Loans
payable to the order of the Swingline Lender (or, if required by the Swingline
Lender, to the Swingline Lender and its registered assigns) substantially in the
form of Exhibit C-2.
"OBLIGATIONS" has the meaning assigned to such term in the
Security Agreement.
"OTHER TAXES" means any and all current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, the Loan Documents.
"PARTICIPANT" has the meaning assigned to such term in Section
10.4(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"PERFECTION CERTIFICATE" means a certificate in the form of
Annex 2 to the Security Agreement or any other form approved by the
Administrative Agent.
-16-
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 6.4;
(b) landlords', vendors', carriers', warehousemen's,
mechanics', materialmen's, repairmen's and other like Liens imposed by
law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 6.4;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article 8; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any
Subsidiary.
"PERMITTED INVESTMENTS" means:
(a) marketable securities (i) issued or directly and
unconditionally guaranteed as to interest and principal by the United
States of America or (ii) issued by any agency of the United States of
America the obligations of which are backed by the full faith and
credit of the United States of America, in each case maturing within
one year after such date;
(b) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state
or any public instrumentality thereof, in each case maturing within one
year after such date and having, at the time of the acquisition
thereof, the highest rating obtainable from either Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies ("S&P"), or
Moody's Investors Service, Inc. ("Moody's");
(c) commercial paper maturing no more than 270 days from the
date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's;
(d) certificates of deposit or bankers' acceptances maturing
within one year and issued or accepted by any Lender or by any
commercial bank organized under the laws of
-17-
the United States of America or any state thereof or the District of
Columbia that (a) is at least "adequately capitalized" (as defined in
the regulations of its primary Federal banking regulator) and (b) has
Tier 1 capital (as defined in such regulations) of not less than
$100,000,000; and
(e) shares of any money market mutual fund that (i) has at
least 95% of its assets invested continuously in the types of
investments referred to in clauses (a) and (b) above, (ii) has net
assets of not less than $500,000,000, and (iii) has the highest rating
obtainable from either S&P or Moody's.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower,
any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"PREPAYMENT/REDUCTION EVENT" means:
(a) any sale, transfer, lease or other disposition (including
pursuant to a sale and leaseback transaction) of any property or asset
of the Borrower or any Subsidiary, other than dispositions described in
clauses (a) and (b) of Section 7.5;
(b) the issuance by any Subsidiary of any Equity Interest
(other than the issuance to the Borrower or any wholly-owned Subsidiary
of the Borrower);
(c) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of the Borrower or any Subsidiary, other than
casualties, insured damage or takings resulting in aggregate Net
Proceeds not exceeding $1,000,000 during any fiscal year;
(d) the incurrence by the Borrower or any Subsidiary of any
Indebtedness, other than Indebtedness permitted by Section 7.1(a); and
(e) the issuance by the Borrower of any Equity Interest (other
than issuances of Equity Interests by the Borrower contemplated by
paragraph (d) of Article 8).
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by BNY as its prime commercial lending rate; each
change in the Prime Rate being effective from and including the date such change
is publicly announced as being effective. The Prime Rate is not intended to be
lowest rate of interest charged by BNY in connection with extensions of credit
to borrowers.
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"RATE CHANGE DATE" means the first Business Day of the month
immediately succeeding the date a certificate required by Section 6.1(e) is
delivered to the Administrative Agent (or, if such a certificate is delivered on
the first Business Day of a month, such first Business Day).
"RECEIVABLE" means the right to payment arising as a result
of, or in connection with, absolute sales of merchandise, goods or services
(including advertising, publication subscriptions and trade shows) by any Loan
Party in the ordinary course of its business.
"REGISTER" has the meaning assigned to such term in Section
10.4(c).
"REGULATION T" means Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION U" means Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION X" means Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having
Revolving Credit Exposures, outstanding A Term Loans, outstanding B Term Loans
and unused Revolving Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures, outstanding A Term Loans, outstanding B Term
Loans and unused Revolving Commitments at such time.
"REQUIRED PRINCIPAL PAYMENTS" means, for any period, the sum
of (i) with respect to all revolving credit and line of credit facilities
(including, without limitation, the facility evidenced hereby) of the Borrower
and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP, an amount equal to the excess, if any, of (a) the aggregate outstanding
principal balance of all Indebtedness thereunder at the beginning of such
period, MINUS (b) the aggregate amount of all commitments under such revolving
and line of credit facilities at the end of such period, PLUS (ii) with respect
to all other Indebtedness of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, all repayments of such Indebtedness
which were required to be made during such period.
"RESTATEMENT DATE" has the meaning set forth in Recital D
hereto.
"RESTRICTED PAYMENT" means, as to any Person, (i) any dividend
or other distribution by such Person (whether in cash, securities or other
property) with respect to any Equity Interests of such Person or any other
payment by such Person with respect to any Equity Interests of such Person to a
holder thereof, (ii) any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption,
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retirement, acquisition, cancellation or termination of any Equity Interest,
(iii) any payment of principal or interest or any purchase, redemption,
retirement, acquisition or defeasance with respect to any Indebtedness of such
Person which is contractually subordinated to the payment of the Obligations,
and (iv) the acquisition for value by such Person of any Equity Interests issued
by such Person or any other Person that Controls such Person.
"REVOLVING COMMITMENT" means, with respect to each Lender
having a Revolving Commitment, the commitment of such Lender to make Revolving
Loans, expressed as an amount representing the maximum aggregate amount of such
Lender's Revolving Credit Exposure, as such commitment may be reduced from time
to time pursuant to Section 2.5 or pursuant to assignments by or to such Lender
pursuant to Section 10.4. The initial amount of each applicable Lender's
Revolving Commitment is set forth on Schedule 2.1, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Revolving
Commitment, as applicable. As of the Restatement Date, the total Revolving
Commitments shall be $40,000,000.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender
at any time, the sum of the aggregate outstanding principal amount of such
Lender's Revolving Loans, its LC Exposure and its Swingline Exposure at such
time.
"REVOLVING LOAN" means a Loan referred to in Section 2.1(a)
and made pursuant to Section 2.4.
"REVOLVING MATURITY DATE" means June 30, 2006.
"SECURED PARTIES" means the "Secured Parties" as defined in
the Security Agreement or the Supplemental Security Agreement.
"SECURITY AGREEMENT" means the Security Agreement, dated as of
September 1, 1999, among the Borrower, the Subsidiary Guarantors and the
Administrative Agent, for the benefit of the Secured Parties.
"SECURITY DOCUMENTS" means the Security Agreement, the
Supplemental Security Agreement, the Mortgages, when executed and delivered, the
Intercreditor Agreement, and each other security agreement, instrument or other
document executed or delivered pursuant to Sections 6.12 or 6.13 to secure any
of the Obligations.
"SENIOR LEVERAGE RATIO" means, at any date of determination,
the ratio of (i) Total Debt (excluding the Subordinated Public Debt and the
Subordinated ABRY Debt) to (ii) (a) on the date of each Borrowing and each
issuance, amendment, renewal or extension of a Letter of Credit, Adjusted
Unreported EBITDA on such date, and (b) on all other dates, Adjusted EBITDA on
such date.
"SENIOR SECURED INDENTURE DEBT" means secured Indebtedness of
the Borrower (and including secured Guaranties thereof by one or more Subsidiary
Guarantors), provided that (a) the Net Proceeds of the issuance thereof are not
less than the outstanding principal amount of, and all accrued interest on, the
Term Loans on the Restatement Date and such Net Proceeds are used substantially
simultaneously with the incurrence thereof to prepay in full the outstanding
principal amount of, and all accrued interest on, the Term Loans, (b) by its
terms, such Indebtedness provides that no scheduled
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payments of principal thereof shall be due or payable prior to the date that is
one year after the Revolving Maturity Date, and (c) such Indebtedness is
incurred pursuant to the Senior Secured Indenture Debt Documents.
"SENIOR SECURED INDENTURE DEBT DOCUMENTS" means either (a) the
Senior Secured Indenture, the Senior Secured Notes, the Intercreditor Agreement
and the other agreements and documents executed or delivered in connection
therewith, or (b) such other agreements, instruments and other documents as
shall (i) provide that the Liens securing the obligations thereunder shall be
subordinate and junior in right to the Liens of the Secured Parties, and (ii) in
all respects be in form and substance (including with respect to intercreditor
issues) satisfactory to the Administrative Agent and Required Lenders.
"SENIOR SECURED INDENTURE" means the Indenture, pursuant to
which the Senior Secured Notes are issued.
"SENIOR SECURED NOTES" means the Senior Secured Notes of the
Borrower issued under the Senior Secured Indenture.
"STATUTORY RESERVE RATE" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one MINUS the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as "EUROCURRENCY
LIABILITIES" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"SUBORDINATED ABRY DEBT" means, as of any date, Indebtedness
of the Borrower to ABRY or one or more of its Affiliates that is subordinated to
the Obligations pursuant to the terms of the Subordinated ABRY Note.
"SUBORDINATED ABRY NOTE" means a promissory note evidencing
the Subordinated ABRY Debt, in form and substance satisfactory to the
Administrative Agent and Required Lenders.
"SUBORDINATED PUBLIC DEBT" means unsecured subordinated
Indebtedness of the Borrower, in the principal amount of $185,000,000 as of the
Restatement Date, and unsecured Guaranties thereof by one or more Subsidiary
Guarantors, in each case under the Subordinated Public Debt Indenture and the
Subordinated Public Notes.
"SUBORDINATED PUBLIC DEBT INDENTURE" means the Indenture,
dated as of June 28, 2001, made by the Borrower to BNY, as trustee, in respect
of the Subordinated Public Notes.
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"SUBORDINATED PUBLIC NOTES" means the 10.375% Senior
Subordinated Notes of the Borrower, due June 15, 2011, in the original aggregate
principal amount of $185,000,000, issued under the Subordinated Public Debt
Indenture.
"SUBSIDIARY" means, with respect to any Person (the "PARENT")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held by the parent or one
or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Borrower.
"SUBSIDIARY GUARANTOR" means any Subsidiary that either
executed and delivered the Security Documents and the Guarantee Agreement under
the Existing Credit Agreement, or executes and delivers the Security Documents
and Guarantee Agreement under this Credit Agreement in accordance with Sections
6.12 and 6.13.
"SUPER-MAJORITY LENDERS" means, at any time, Lenders having
Revolving Credit Exposures, outstanding A Term Loans, outstanding B Term Loans
and unused Revolving Commitments representing more than 66-2/3% of the sum of
the total Revolving Credit Exposures, outstanding A Term Loans, outstanding B
Term Loans and unused Revolving Commitments at such time.
"SUPPLEMENTAL COLLATERAL" means the Collateral under and as
defined in the Supplemental Security Agreement.
"SUPPLEMENTAL SECURITY AGREEMENT" means the Security
Agreement, substantially in the form of Exhibit D, among the Borrower, the
Subsidiary Guarantors and the Administrative Agent, for the benefit of the
Secured Parties.
"SWINGLINE EXPOSURE" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"SWINGLINE LENDER" means BNY in its capacity as lender of
Swingline Loans hereunder.
"SWINGLINE LOAN" means a Loan in dollars made pursuant to
Section 2.9.
"TAXES" means any and all current or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM LOAN" means an A Term Loan or a B Term Loan, and "TERM
LOANS" means all A Term Loans and all B Term Loans.
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"TERM LOAN PREPAYMENT DATE" means the third Business Day after
the date, if any, of the prepayment in full of the outstanding principal of, and
accrued interest on, the Term Loans.
"TOTAL DEBT" means all Indebtedness that would be reflected on
the consolidated balance sheet of the Borrower in accordance with GAAP, PLUS the
amount available to be drawn under all Letters of Credit.
"TRANSACTIONS" means (a) the execution, delivery and
performance by each Loan Party of each Loan Document to which it is a party, (b)
the borrowing of the Loans and the issuance of the Letters of Credit, (c) the
use of the proceeds of the Loans and the Letters of Credit, (d) the issuance of
the New Preferred Stock and the application of the proceeds thereof, (e) the
issuance of the Senior Secured Indenture Debt and the application of the
proceeds thereof, and (f) the issuance of the Subordinated ABRY Debt and the
application of the proceeds thereof.
"TYPE", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 CLASSIFICATION OF LOANS AND BORROWINGS
For purposes of this Credit Agreement, Loans may be classified
and referred to by Class (E.G., a "REVOLVING LOAN") or by Type (E.G., a
"EURODOLLAR LOAN") or by Class and Type (E.G., a "EURODOLLAR REVOLVING LOAN").
Borrowings may also be classified and referred to by Class (E.G., a "REVOLVING
BORROWING") or by Type (E.G., a "EURODOLLAR BORROWING") or by Class and Type
(E.G., a "EURODOLLAR REVOLVING BORROWING").
Section 1.3 TERMS GENERALLY
The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise, (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Credit Agreement in its entirety and
not to any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles
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and Sections of, and Exhibits and Schedules to, this Credit Agreement and (e)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights. Any
reference to an "applicable Lender" shall mean (i) in the case of Revolving
Borrowings, Swingline Loans and Letters of Credit, Lenders having a Revolving
Commitment, (ii) in the case of A Term Borrowings, Lenders having an A Term Loan
and (iii) in the case of B Term Borrowings, Lenders having a B Term Loan.
Section 1.4 ACCOUNTING TERMS; GAAP
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time, PROVIDED that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the Effective Date
in GAAP or in the application thereof on the operation of such provision (or if
the Administrative Agent notifies the Borrower that Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith. Unless the context otherwise requires, any reference to a
fiscal period shall refer to the relevant fiscal period of the Borrower.
Section 1.5 CALCULATION OF CERTAIN FINANCIAL TERMS
(a) In the event that any annual trade show produced by the Borrower or
any Subsidiary on a regular basis (a "RECURRING TRADE SHOW") occurred both (i)
more than once during any four fiscal quarter period (a "4Q PERIOD"), and (ii)
during the last four weeks of such 4Q Period, then each of EBITDA, Fixed Charges
and Interest Expense shall be calculated with respect to such 4Q Period as if
all such Recurring Trade Shows that occurred during such 4Q Period (other than
the last such Recurring Trade Show) occurred instead in the fiscal quarter
immediately preceding such 4Q Period.
(b) In the event that any Recurring Trade Show did not occur during any
4Q Period, but did occur during the four week period immediately succeeding such
4Q Period, then each of EBITDA, Fixed Charges and Interest Expense shall be
calculated with respect to such 4Q Period as if the Recurring Trade Show, if
any, that last occurred during the fiscal quarter immediately preceding such 4Q
Period occurred instead in the last fiscal quarter of such 4Q Period.
Section 1.6 COMMUNIC
Notwithstanding anything to the contrary contained in any Loan
Document, ComMunic and each subsidiary thereof:
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(1) shall be deemed not to be a Subsidiary for any purpose of
any Loan Document, except with respect to (a) the following defined terms:
"ERISA Affiliate", and "Plan", and (b) the following Sections of the Credit
Agreement: 4.6, 4.9, 4.10, 6.1(a), 6.1(b), 6.1(c), 6.1(d), 6.1(h), 6.1(i), 6.2,
6.4, 6.6, 6.7, 6.14, 10.3 and 10.13, and
(2) shall be deemed to be a Subsidiary for purposes of Article
8(h) and 8(i) of the Credit Agreement, provided, however, that any Event of
Default that shall occur under either Article 8(h) or 8(i) of the Credit
Agreement solely as a result of this Section 1.6 (X) shall not be treated as an
Event of Default for purposes of clause (B) of the last paragraph of Article 8
of the Credit Agreement and (Y) shall instead be treated as an Event of Default
under clause (A) of the last paragraph of Article 8 of the Credit Agreement.
ARTICLE 2. THE CREDITS
Section 2.1 REVOLVING COMMITMENT
Subject to the terms and conditions set forth herein, each
Lender having a Revolving Commitment severally agrees to make Revolving Loans to
the Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (a) such Lender's Revolving Credit
Exposure exceeding such Lender's Revolving Commitment, or (b) the aggregate
Revolving Credit Exposure of all Lenders exceeding the Available Revolving
Amount. Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
Section 2.2 LOANS AND BORROWINGS
(a) Each Revolving Loan shall be made as part of a Borrowing consisting
of Revolving Loans made by the applicable Lenders ratably in accordance with
their respective Revolving Commitments. The failure of any applicable Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder, PROVIDED that the Revolving Commitments of the
applicable Lenders are several, and no Lender shall be responsible for any other
Lender's failure to make Loans as required. Subject to Section 3.4, after the
Restatement Date each new Borrowing (other than a Swingline Borrowing) shall be
comprised entirely of (i) Revolving Loans and (ii) ABR Loans or Eurodollar
Loans, as applicable, in each case as the Borrower may request in accordance
herewith. Each Swingline Borrowing shall be a Swingline Loan. Each applicable
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan, PROVIDED that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Credit Agreement.
(b) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $1,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $1,000,000, PROVIDED that an
ABR
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Revolving Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the Available Revolving Amount or in an aggregate amount that
is required to finance the reimbursement of an LC Disbursement as contemplated
by Section 2.8(d). Borrowings of more than one Type may be outstanding at the
same time, PROVIDED that there shall not at any time be more than a total of 5
Eurodollar Borrowings outstanding.
(c) Notwithstanding any other provision of this Credit Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after (i) the Revolving Maturity Date, in the case of Revolving Loans, (ii) the
A Term Maturity Date, in the case of A Term Loans, or (iii) the B Term Maturity
Date, in the case of B Term Loans.
Section 2.3 REQUESTS FOR BORROWINGS
To request a Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.4; and
(v) a reasonably detailed calculation of each of the Senior
Leverage Ratio and, at all times on and after December 31, 2002, the
Leverage Ratio, in each case on a pro forma basis immediately after
giving effect to such Borrowing.
If no election as to the Type of Borrowing is specified, then
the requested Borrowing shall be an ABR Borrowing. Promptly following receipt of
a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each applicable Lender of the details thereof and of the amount of
such Lender's Loan to be made as part of the requested Borrowing.
Notwithstanding anything to the contrary contained in this Section 2.3,
Swingline Borrowings shall be made in accordance with Section 2.9, and not this
Section 2.3.
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Section 2.4 FUNDING OF BORROWINGS
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 1:00
p.m., New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders, provided
that Swingline Loans shall be made only as provided in Section 2.9. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting or otherwise transferring the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent and
designated by the Borrower in the applicable Borrowing Request, PROVIDED that
ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.8(d) shall be remitted by the Administrative Agent to the
Issuing Bank, PROVIDED FURTHER that ABR Revolving Loans made to finance the
repayment of a Swingline Loan as provided in Section 2.9(c) shall be remitted by
the Administrative Agent to the Swingline Lender.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section,
paragraph (d) of Section 2.8 or paragraph (c) of Section 2.9 and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation or (ii) in the case of the Borrower, the interest rate
that would be otherwise applicable to such Borrowing. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
Section 2.5 TERMINATION AND REDUCTION OF REVOLVING COMMITMENTS
(a) Unless previously terminated, the Revolving Commitments shall
terminate on the Revolving Maturity Date.
(b) On each date below, the Revolving Commitments shall be
automatically reduced by an amount equal to (i) the total of the Revolving
Commitments as of September 30, 2003 MULTIPLIED BY (ii) the percentage set forth
below adjacent to such date:
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================================ =============================
DATE PERCENTAGE
- -------------------------------- -----------------------------
September 30, 2003 7.5%
- -------------------------------- -----------------------------
December 31, 2003 7.5%
- -------------------------------- -----------------------------
March 31, 2004 7.5%
- -------------------------------- -----------------------------
June 30, 2004 7.5%
- -------------------------------- -----------------------------
September 30, 2004 7.5%
- -------------------------------- -----------------------------
December 31, 2004 7.5%
- -------------------------------- -----------------------------
March 31, 2005 7.5%
- -------------------------------- -----------------------------
June 30, 2005 7.5%
- -------------------------------- -----------------------------
September 30, 2005 10%
- -------------------------------- -----------------------------
December 31, 2005 10%
- -------------------------------- -----------------------------
March 31, 2006 10%
- -------------------------------- -----------------------------
June 30, 2006 10%
================================ =============================
(c) The Borrower may at any time terminate, or from time to time
reduce, the Revolving Commitments, PROVIDED that (i) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.7, the
sum of the Revolving Credit Exposures would exceed the Available Revolving
Amount, and (ii) each such reduction shall be in an amount that is an integral
multiple of $1,000,000 and not less than $500,000.
(d) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Revolving Commitments under paragraph (c) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable, PROVIDED that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Revolving
Commitments hereunder shall be permanent. Each reduction of the Revolving
Commitments hereunder shall be made ratably among the applicable Lenders in
accordance with their respective Revolving Commitments.
Section 2.6 REPAYMENT OF LOANS; EVIDENCE OF DEBT
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each applicable Lender the then unpaid
principal amount of each Revolving Loan, A Term Loan and B Term Loan on the
Revolving Maturity Date, A Term Maturity Date and B Term Maturity Date,
respectively, and (ii) to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earlier of (x) the maturity date selected by the
Borrower for such Swingline Loan and (y) the Revolving Maturity Date.
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(b) Subject to the penultimate sentence of Section 2.7(e), on each date
below, the aggregate unpaid principal balance of the A Term Loans shall be due
and payable in an amount equal to the amount set forth below adjacent to such
date:
========================================================================
DATE AMOUNT
- ------------------------------------------------------------------------
March 31, 2002 $3,162,243.67
- ------------------------------------------------------------------------
June 30, 2002 $3,162,243.67
- ------------------------------------------------------------------------
September 30, 2002 $4,743,365.50
- ------------------------------------------------------------------------
December 31, 2002 $4,743,365.50
- ------------------------------------------------------------------------
March 31, 2003 $4,743,365.50
- ------------------------------------------------------------------------
June 30, 2003 $4,743,365.50
- ------------------------------------------------------------------------
September 30, 2003 $6,324,487.33
- ------------------------------------------------------------------------
December 31, 2003 $6,324,487.33
- ------------------------------------------------------------------------
March 31, 2004 $6,324,487.33
- ------------------------------------------------------------------------
June 30, 2004 $6,324,487.33
- ------------------------------------------------------------------------
September 30, 2004 $7,905,609.17
- ------------------------------------------------------------------------
December 31, 2004 $7,905,609.17
- ------------------------------------------------------------------------
March 31, 2005 $7,905,609.17
- ------------------------------------------------------------------------
June 30, 2005 $7,905,609.17
- ------------------------------------------------------------------------
September 30, 2005 $7,905,609.17
- ------------------------------------------------------------------------
December 31, 2005 $7,905,609.17
- ------------------------------------------------------------------------
March 31, 2006 $7,905,609.17
- ------------------------------------------------------------------------
June 30, 2006 The outstanding principal balance
of the A Term Loans
========================================================================
(c) Subject to the penultimate sentence of Section 2.7(e), on each date
below, the aggregate unpaid principal balance of the B Term Loans shall be due
and payable in an amount equal to the amount set forth below adjacent to such
date:
========================================================================
DATE AMOUNT
- ------------------------------------------------------------------------
March 31, 2002 $169,405.91
- ------------------------------------------------------------------------
June 30, 2002 $169,405.91
- ------------------------------------------------------------------------
September 30, 2002 $169,405.91
- ------------------------------------------------------------------------
December 31, 2002 $169,405.91
- ------------------------------------------------------------------------
March 31, 2003 $169,405.91
- ------------------------------------------------------------------------
June 30, 2003 $169,405.91
- ------------------------------------------------------------------------
September 30, 2003 $169,405.91
- ------------------------------------------------------------------------
December 31, 2003 $169,405.91
- ------------------------------------------------------------------------
March 31, 2004 $169,405.91
- ------------------------------------------------------------------------
June 30, 2004 $169,405.91
- ------------------------------------------------------------------------
September 30, 2004 $169,405.91
- ------------------------------------------------------------------------
-29-
========================================================================
DATE AMOUNT
- ------------------------------------------------------------------------
December 31, 2004 $169,405.91
- ------------------------------------------------------------------------
March 31, 2005 $169,405.91
- ------------------------------------------------------------------------
June 30, 2005 $169,405.91
- ------------------------------------------------------------------------
September 30, 2005 $169,405.91
- ------------------------------------------------------------------------
December 31, 2005 $169,405.91
- ------------------------------------------------------------------------
March 31, 2006 $169,405.91
- ------------------------------------------------------------------------
June 30, 2006 $169,405.91
- ------------------------------------------------------------------------
September 30, 2006 $15,924,155.61
- ------------------------------------------------------------------------
December 31, 2006 $15,924,155.61
- ------------------------------------------------------------------------
March 31, 2007 $15,924,155.61
- ------------------------------------------------------------------------
June 30, 2007 The outstanding principal
balance of the B Term Loans
========================================================================
(d) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the debt of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(e) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(f) The entries made in the accounts maintained pursuant to paragraphs
(d) or (e) of this Section shall, to the extent not inconsistent with any
entries made in any promissory note, be prima facie evidence of the existence
and amounts of the obligations recorded therein, PROVIDED that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Credit Agreement.
Section 2.7 PREPAYMENT OF LOANS
(a) The Borrower shall have the right at any time and from time to time
to prepay any Borrowing in whole or in part, subject to the requirements of this
Section, PROVIDED that each prepayment of a Term Loan shall be allocated to the
A Term Loans and the B Term Loans, on a pro rata basis, based on the aggregate
outstanding principal balance of the Term Loans.
(b) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment/Reduction Event, then, immediately after such Net Proceeds are
received, (i) the Borrower shall prepay the A Term Loans and the B Term Loans,
on a pro rata basis, in an aggregate amount equal to (A) in the case of each
-30-
Prepayment/Reduction Event within the meaning of clause (e) of such defined term
(1) 100% of the first $50,000,000 of aggregate Net Proceeds from all such
Prepayment/Reduction Events occurring on or after the Restatement Date, (2) in
the event that the aggregate Net Proceeds from all such Prepayment/Reduction
Events occurring on or after the Restatement Date shall exceed $50,000,000, 75%
of the amount of such excess that is less than or equal to $25,000,000 (E.G., if
the aggregate Net Proceeds from all such Prepayment/Reduction Events occurring
on or after the Restatement Date equals $75,000,000, then the required
prepayment would be $68,750,000 (100% of the first $50,000,000 PLUS 75% of the
next $25,000,000)), and (3) in the event that the aggregate Net Proceeds from
all such Prepayment/Reduction Events occurring on or after the Restatement Date
shall exceed $75,000,000, 50% of the amount of such excess, (B) in the case of
each Prepayment/Reduction Event within the meaning of clauses (a), (b) or (c) of
such defined term, 95% of the Net Proceeds from each such Prepayment/Reduction
Event, and (C) in the case of each other Prepayment/Reduction Event, 100% of the
Net Proceeds from each such Prepayment/Reduction Event, and (ii) following the
repayment of the A Term Loans and the B Term Loans in full, the Borrower shall
prepay the Revolving Loans in an amount equal to the lesser of (A) the excess of
such Net Proceeds over the portion thereof, if any, used to prepay the A Term
Loans and the B Term Loans and (B) the outstanding Revolving Loans.
Notwithstanding anything herein to the contrary, the Lenders having outstanding
B Term Loans may elect to forfeit any prepayment of a B Term Borrowing under
this Section 2.7(b), PROVIDED that all such Lenders make such an election with
respect to such prepayment. To make such an election, such Lenders shall notify
the Administrative Agent and the Borrower thereof by telephone not later than
one Business Day after the Administrative Agent shall have advised such Lenders
of such prepayment in accordance with Section 2.7(e). Each such telephonic
election shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written election in a form approved
by the Administrative Agent and signed by each such Lender. Promptly following
receipt of such election, the Administrative Agent shall advise each Lender of
the details thereof, and any amount that, but for this provision, would have
been applied to the B Term Loans shall instead be applied to the A Term Loans.
(c) In the event of any partial reduction or termination of the
Revolving Commitments, then (i) at or prior to the date of such reduction or
termination, the Administrative Agent shall notify the Borrower and the
applicable Lenders of the sum of the Revolving Credit Exposures after giving
effect thereto and (ii) if such sum would exceed the Available Revolving Amount
after giving effect to such reduction or termination, then the Borrower shall,
on the date of such reduction or termination, prepay Revolving Borrowings in an
amount sufficient to eliminate such excess.
(d) OTHER MANDATORY PREPAYMENTS.
(i) If on any day the aggregate Revolving Credit Exposure
exceeds the Borrowing Base, the Borrower shall, within one Business Day
of such day, prepay the Revolving Loans in an amount equal to the
lesser of (1) such excess and (2) the aggregate Revolving Credit
Exposure. Until such excess has been prepaid, the Borrower shall not be
entitled to borrow additional Revolving Loans.
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(ii) If on the last Business Day of any calendar month, the
aggregate sum of the cash and cash equivalents of the Loan Parties
exceeds $7,500,000, the Borrower shall, within three Business Days of
such day, prepay the Revolving Loans in an amount equal to the lesser
of (1) such excess and (2) the aggregate Revolving Credit Exposure.
Until such excess has been prepaid, the Borrower shall not be entitled
to borrow additional Revolving Loans.
(iii) Substantially simultaneously with the issuance of the
Senior Secured Notes, the Borrower will prepay the Term Loans in full
as provided in Section 7.1(a)(viii).
(iv) Substantially simultaneously with the issuance of the
Subordinated ABRY Notes, the Borrower will prepay Loans as provided in
Section 7.1(a)(vii).
(e) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid, PROVIDED that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Revolving Commitments as contemplated by Section 2.5, then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance
with Section 2.5. Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing hereunder (other than
Swingline Borrowings) shall, when added to the amount of each concurrent
prepayment of other Borrowings (other than Swingline Borrowings), be in an
integral multiple of $500,000 and not less than $2,000,000. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Each prepayment of A Term Loans or B Term Loans shall be applied
ratably among the remaining installments of principal required under Section
2.6(b) or 2.6(c), as applicable. Prepayments shall be accompanied by accrued
interest to the extent required by Section 3.1.
Section 2.8 LETTERS OF CREDIT
(a) GENERAL. Subject to the terms and conditions set forth herein, the
Borrower may request the issuance of Letters of Credit denominated in dollars
for its own account, in a form reasonably acceptable to the Administrative Agent
and the Issuing Bank, at any time and from time to time during the Availability
Period. In the event of any inconsistency between the terms and conditions of
this Credit Agreement and the terms and conditions of any letter of credit
application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Credit Agreement shall control. Notwithstanding anything
to the contrary herein contained, the Issuing Bank shall not be required to
issue any Letter of Credit if prior thereto or simultaneously therewith, the
Borrower shall not have borrowed Revolving Loans.
-32-
(b) NOTICE OF ISSUANCE; AMENDMENT; RENEWAL; EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to issue, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for, and prior to the issuance of, a Letter
of Credit. A Letter of Credit shall be issued, amended, renewed or extended only
if (and, upon issuance, amendment, renewal or extension of each Letter of
Credit, the Borrower shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $5,000,000 and (ii) the sum of the total Revolving
Credit Exposures shall not exceed the Available Revolving Amount.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date that is one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is ten Business Days prior to the Revolving Maturity Date, PROVIDED that
any Letter of Credit may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date that is ten Business
Days prior to the Revolving Maturity Date).
(d) REIMBURSEMENT. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, then the Issuing Bank shall either (1) notify
the Borrower to reimburse the Issuing Bank therefor, in which case the Borrower
shall reimburse such LC Disbursement by paying to the Administrative Agent an
amount equal to such LC Disbursement and any accrued interest thereon not later
than 1:00 p.m., New York City time, on the date that such LC Disbursement is
made, if the Borrower shall have received notice of such LC Disbursement prior
to 12:00 noon, New York City time, on such date, or if such notice has not been
received by the Borrower prior to such time on such date, then not later than
1:00 p.m., New York City time, on (i) the Business Day that the Borrower
receives such notice, if such notice is received prior to 12:00 noon, New York
City time, on the day of receipt or (ii) the Business Day immediately following
the day that the Borrower receives such notice, if such notice is not received
prior to such time on the day of receipt, PROVIDED that, if the LC Disbursement
is equal to or greater than $1,000,000, the Borrower may, subject to the
conditions of borrowing set forth herein, request in accordance with Section 2.3
or Section 2.9 that such payment be financed with an ABR Revolving Borrowing or
a Swingline Loan, as applicable, in an equivalent amount and, to the extent so
financed, the Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing, or (2) notify the
Administrative Agent that the Issuing Bank is requesting that the applicable
Lenders make an ABR Revolving Borrowing in an amount equal to such LC
Disbursement and any accrued interest thereon, in which case (i) the
Administrative
-33-
Agent shall notify each applicable Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of such ABR Revolving Borrowing,
and (ii) each Lender shall, whether or not any Default shall have occurred and
be continuing, any representation or warranty shall be accurate, any condition
to the making of any loan hereunder shall have been fulfilled, or any other
matter whatsoever, make the Loan to be made by it under this paragraph by wire
transfer of immediately available funds to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders,
(A) on such date, in the event that such Lender shall have received notice of
such ABR Revolving Borrowing prior to 12:00 noon, New York City time, or (B) if
such notice has not been received by such Lender prior to such time on such
date, then not later than 1:00 p.m., New York City time, on (X) the Business Day
that such Lender receives such notice, if such notice is received prior to 12:00
noon, New York City time, on the day of receipt or (Y) the Business Day
immediately following the day that such Lender receives such notice, if such
notice is not received prior to such time on the day of receipt. Such Loans
shall, for all purposes hereof, be deemed to be an ABR Revolving Borrowing
referred to in Section 2.1(a) and made pursuant to Section 2.3, and the Lenders
obligations to make such Loans shall be absolute and unconditional. The
Administrative Agent will make such Loans available to the Issuing Bank by
promptly crediting or otherwise transferring the amounts so received, in like
funds, to the Issuing Bank for the purpose of repaying in full the LC
Disbursement and all accrued interest thereon.
(e) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the applicable Lenders, the
Issuing Bank hereby grants to each Lender having a Revolving Commitment, and
each such Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Applicable Percentage of the aggregate
amount available to be drawn under such Letter of Credit. If the Borrower fails
to make any payment required by paragraph (d) of this Section, or if any such
sum paid by the Borrower is required to be refunded to the Borrower for any
reason, the Administrative Agent shall notify each applicable Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Applicable Percentage thereof. Each applicable Lender
shall pay to the Administrative Agent its Applicable Percentage of an amount
equal to the payment then due from the Borrower, in the same manner as provided
in Section 2.4 with respect to Loans made by such Lender (and Section 2.4 shall
apply, MUTATIS MUTANDIS, to the payment obligations of the applicable Lenders),
by wire transfer of immediately available funds to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders, (A) on such date, in the event that such Lender shall have
received notice thereof prior to 12:00 noon, New York City time, or (B) if such
notice has not been received by such Lender prior to such time on such date,
then not later than 1:00 p.m., New York City time, on (X) the Business Day that
such Lender receives such notice, if such notice is received prior to 12:00
noon, New York City time, on the day of receipt or (Y) the Business Day
immediately following the day that such Lender receives such notice, if such
notice is not received prior to such time on the day of receipt. The
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the applicable Lenders. Promptly following receipt by the
Administrative Agent of any payment in respect of such LC Disbursement from the
Borrower pursuant to paragraph (d) of this Section, the Administrative Agent
shall distribute such payment to the Issuing Bank or, to the extent that
-34-
Lenders have made payments pursuant to this paragraph to reimburse the Issuing
Bank, then to such Lenders and the Issuing Bank as their interests may appear.
Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing
Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or
Swingline Loans as contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC Disbursement. Each
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Revolving Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever; PROVIDED, however, that
no Lender shall be obligated to make any payment to the Administrative Agent for
any wrongful LC Disbursement made by the Issuing Bank as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Issuing Bank.
(f) OBLIGATIONS ABSOLUTE. The Borrower's obligations to reimburse LC
Disbursements as provided in paragraph (d) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Credit Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Credit Agreement, or any term or provision therein or
herein, (ii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) payment by the Issuing
Bank under a Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit or (iv) any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither any Credit Party nor any of their
respective Related Parties shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; PROVIDED that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented that appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation,
-35-
regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; PROVIDED that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the applicable Lenders with respect to any such LC
Disbursement.
(h) INTERIM INTEREST. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
PROVIDED that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (d) of this Section, then Section 3.1(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
applicable Lenders, an amount in cash equal to the LC Exposure with respect to
Letters of Credit as of such date PLUS any accrued and unpaid interest thereon;
PROVIDED that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of
Article 8. Such deposit shall be held by the Administrative Agent as collateral
for the payment and performance of the obligations of the Borrower under this
Credit Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposit, which investments
shall be in direct short-term obligations of, or short-term obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America, in each case maturing no later than the expiry date of the
Letter of Credit giving rise to the relevant LC Exposure, such deposit shall not
bear interest. Interest or profits, if any, on such investments shall accumulate
in such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if
-36-
the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Credit Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
Section 2.9 SWINGLINE LOANS
(a) Subject to the terms and conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans to the Borrower in dollars from time to
time on any Business Day during the period from the Effective Date to the tenth
Business Day preceding the Revolving Maturity Date in an aggregate principal
amount at any time outstanding that will not result in the Swingline Exposure
exceeding $5,000,000 or result in the sum of the total Revolving Credit
Exposures exceeding the Available Revolving Amount, PROVIDED that the Swingline
Lender shall not be obligated to make a Swingline Loan to refinance an
outstanding Swingline Loan. Notwithstanding the foregoing, the Swingline Lender
shall not be required to make a Swingline Loan if (i) prior thereto or
simultaneously therewith the Borrower shall not have borrowed Revolving Loans,
(ii) any applicable Lender shall be in default of its obligations under this
Credit Agreement or (iii) any Credit Party shall have notified the Swingline
Lender and the Borrower in writing at least one Business Day prior to the
Borrowing Date with respect to such Swingline Loan, that the conditions set
forth in Section 5.2 have not been satisfied and such conditions remain
unsatisfied as of the requested time of the making of such Swingline Loan. Each
Swingline Loan shall be due and payable on the maturity thereof, PROVIDED that
in no event shall such maturity be later than the tenth Business Day preceding
the Revolving Maturity Date. Notwithstanding anything to the contrary herein
contained, all Swingline Loans shall at all times consist of ABR Borrowings.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent and the Swingline Lender by telephone (confirmed by
telecopy) no later than 12:00 noon, New York City time, on the day of the
relevant Swingline Loan. Each such notice shall be irrevocable and shall specify
(i) the aggregate principal amount to be borrowed, (ii) the requested date
(which shall be a Business Day) and (iii) the maturity date of the requested
Swingline Loan which shall be not later than seven Business Days after the
making of such Swingline Loan. The Swingline Lender will make the requested
amount available promptly on that same day, to the Administrative Agent (for the
account of the Borrower as set forth in Section 2.4) who, thereupon, will
promptly make such amount available to the Borrower in like funds as provided
therein or, in the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 2.8(d) by remittance to the Issuing
Bank. Each Swingline Loan shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $100,000.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day notify the Administrative Agent that the Swingline Lender is
requesting that the applicable Lenders make an ABR Revolving Borrowing in an
amount equal to the outstanding principal balance and accrued interest on the
Swingline Loans, in which
-37-
case (i) the Administrative Agent shall notify each applicable Lender of the
details thereof and of the amount of such Lender's Loan to be made as part of
such ABR Revolving Borrowing, and (ii) each Lender shall, regardless of whether
any Default shall have occurred and be continuing, any representation or
warranty shall be accurate, any condition to the making of any loan hereunder
shall have been fulfilled, or any other matter whatsoever, make the Loan to be
made by it under this paragraph by wire transfer of immediately available funds
to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders, (A) on such date, in the event that such
Lender shall have received notice of such ABR Revolving Borrowing prior to 12:00
noon, New York City time, or (B) if such notice has not been received by such
Lender prior to such time on such date, then not later than 1:00 p.m., New York
City time, on (X) the Business Day that such Lender receives such notice, if
such notice is received prior to 12:00 noon, New York City time, on the day of
receipt or (Y) the Business Day immediately following the day that such Lender
receives such notice, if such notice is not received prior to such time on the
day of receipt. Such Loans shall, for all purposes hereof, be deemed to be an
ABR Revolving Borrowing referred to in Section 2.1(a) and made pursuant to
Section 2.3, and the Lenders obligations to make such Loans shall be absolute
and unconditional. The Administrative Agent will make such Loans available to
the Swingline Lender by promptly crediting or otherwise transferring the amounts
so received, in like funds, to the Swingline Lender for the purpose of repaying
in full the Swingline Loans and all accrued interest thereon.
(d) If the Borrower fails to make any payment with respect to a
Swingline Loan, or if any such sum paid by the Borrower is required to be
refunded to the Borrower for any reason, the Administrative Agent shall notify
each applicable Lender of the applicable Swingline Loan, the payment then due
from the Borrower in respect thereof and such Lender's Applicable Percentage
thereof. Each applicable Lender shall purchase a participation in such Swingline
Loan by paying to the Administrative Agent its Applicable Percentage of an
amount equal to the payment then due from the Borrower, in the same manner as
provided in Section 2.4 with respect to Loans made by such Lender (and Section
2.4 shall apply, mutatis mutandis, to the payment obligations of the applicable
Lenders), by wire transfer of immediately available funds to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders, (A) on such date, in the event that such Lender shall have
received notice thereof prior to 12:00 noon, New York City time, or (B) if such
notice has not been received by such Lender prior to such time on such date,
then not later than 1:00 p.m., New York City time, on (X) the Business Day that
such Lender receives such notice, if such notice is received prior to 12:00
noon, New York City time, on the day of receipt or (Y) the Business Day
immediately following the day that such Lender receives such notice, if such
notice is not received prior to such time on the day of receipt. The
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the applicable Lenders. Promptly following receipt by the
Administrative Agent of any payment in respect of such Swingline Loan from the
Borrower, the Administrative Agent shall distribute such payment to the
Swingline Lender or, to the extent that Lenders have made payments pursuant to
this paragraph to reimburse the Swingline Lender, then to such Lenders and the
Swingline Lender as their interests may appear. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Swingline Loans is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
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continuance of a Default or reduction or termination of the Revolving
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
Section 2.10 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SETOFFS
(a) Each Loan Party shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal of Loans, LC
Disbursements, interest or fees, or of amounts payable under Sections 3.5, 3.6,
3.7 or 10.3, or otherwise) prior to 12:00 noon, New York City time, on the date
when due, in immediately available funds, without setoff or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its office at One Wall Street, New
York, New York, or such other office as to which the Administrative Agent may
notify the other parties hereto, except payments to be made to the Issuing Bank
or Swingline Lender as expressly provided herein and except that payments
pursuant to Sections 3.5, 3.6, 3.7 and 10.3 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal of Loans,
unreimbursed LC Disbursements, interest, fees and commissions then due
hereunder, such funds shall be applied (i) first, towards payment of interest,
fees and commissions then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest, fees and commissions then
due to such parties and (ii) second, towards payment of principal of Loans and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal of Loans and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of, or
interest on, any of its Loans or participations in LC Disbursements or Swingline
Loans resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in LC Disbursements or
Swingline Loans and accrued interest thereon than the proportion received by any
other applicable Lender, then the applicable Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Loans
and participations in LC Disbursements or Swingline Loans of other applicable
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the applicable Lenders ratably in accordance with the aggregate
amount of principal of, and accrued interest on, their respective Loans and
participations in LC Disbursements or Swingline Loans, PROVIDED that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made
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by the Borrower pursuant to and in accordance with the express terms of this
Credit Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements or Swingline Loans to any assignee or participant, other
than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Each Loan Party consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Loan Party in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from a
Loan Party prior to the date on which any payment is due to the Administrative
Agent for the account of the applicable Credit Parties hereunder that such Loan
Party will not make such payment, the Administrative Agent may assume that such
Loan Party has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to such Credit Parties the amount due.
In such event, if such Loan Party has not in fact made such payment, then each
such Credit Party severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Credit Party with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
(e) If any Credit Party shall fail to make any payment required to be
made by it pursuant to Sections 2.4(b), 2.8(e) or 2.9(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Credit Party to satisfy such Credit Party's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
ARTICLE 3. INTEREST, FEES, YIELD PROTECTION, ETC.
Section 3.1 INTEREST
(a) The Loans comprising each ABR Borrowing shall bear interest at the
Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin.
(c) Notwithstanding the foregoing, if
(i) an Event of Default (other than under paragraphs
(a) or (b) of Article 8) has occurred and is continuing and the
Administrative Agent, at the request of or with the consent of Required
Lenders, so elects by notice to the Borrower then, so long as such
Event of Default is continuing and such notice has not been rescinded
by the Administrative Agent at the request of or with the consent of
Required Lenders, or
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(ii) an Event of Default has occurred and is
continuing under paragraphs (a) or (b) of Article 8, then, so long as
such Event of Default is continuing,
all principal of and interest on each Loan and each fee and other amount payable
by the Borrower hereunder shall bear interest, after as well as before judgment,
at a rate per annum equal to (A) in the case of principal of any Loan, 2% PLUS
the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (B) in the case of any other amount, 2% PLUS the
Alternate Base Rate PLUS the Applicable Margin relating to ABR Loans.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan, PROVIDED that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than the prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent clearly demonstrable error.
Section 3.2 INTEREST ELECTIONS
(a) Each Borrowing (other than a Swingline Loan) initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the applicable Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings which
may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.3 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the
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Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.2:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day; and
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each applicable Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period, such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing, (i) no outstanding
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing
at the end of the Interest Period applicable thereto.
Section 3.3 FEES
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender having a Revolving Commitment, a commitment fee, which
shall accrue at a rate per annum equal to the Commitment Fee Margin on the daily
amount of the unused Revolving Commitment PLUS the Swingline Exposure of such
Lender during the period from and including the Restatement Date to but
excluding the date on which such Revolving Commitment terminates. Accrued
commitment fees shall be payable in arrears on the last day of each month, each
date on which the Revolving Commitments are permanently reduced and on the date
on which the Revolving Commitments terminate, commencing on the first such date
to occur after the date hereof. All commitment fees shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). Fees under Section 3.3(a) of the Existing Credit Agreement which are
accrued and unpaid as of the Restatement Date shall be payable in accordance
with the provisions of such Section.
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(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at rate per annum equal to the Applicable
Margin on the average daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Restatement Date to but excluding the later of the date
on which such Lender's Revolving Commitment terminates and the date on which
such Lender ceases to have any LC Exposure and (ii) to the Issuing Bank for its
own account a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Borrower and the Issuing Bank on the average
daily amount of the LC Exposure attributable to Letters of Credit (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Restatement Date to but excluding the later of the date
of termination of the Revolving Commitments and the date on which there ceases
to be any such LC Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Accrued participation fees and fronting
fees shall be payable in arrears on the last day of each month, commencing on
the first such date to occur after the date hereof; PROVIDED that all such fees
shall be payable on the date on which the Revolving Commitments terminate and
any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within ten days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). Fees under Section 3.3(b) of the
Existing Credit Agreement which are accrued and unpaid as of the Restatement
Date shall be payable in accordance with the provisions of such Section.
(c) On the Restatement Date, the Borrower shall (i) pay to the
Administrative Agent for the account of each Lender that shall have executed and
delivered this Credit Agreement on or prior to the Restatement Date, an amount
equal to 0.40% of the aggregate sum of such Lender's Revolving Commitment (as
such Revolving Commitment is reduced on the effectiveness of this Credit
Agreement) PLUS the outstanding principal balance of such Lender's Term Loans
and (ii) all other fees and other amounts due and payable on or prior to the
Restatement Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
(d) The Borrower agrees to pay to each Credit Party, for its own
account, fees and other amounts payable in the amounts and at the times
separately agreed upon between the Borrower and such Credit Party.
(e) All fees and other amounts payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative Agent (or to
the Issuing Bank, in each case of fees payable to it) for distribution, in the
case of commitment and Letter of Credit participation fees, to the Lenders. Fees
and other amounts paid shall not be refundable under any circumstances.
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Section 3.4 ALTERNATE RATE OF INTEREST
If prior to the commencement of any Interest Period for a
Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by any applicable
Lender that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period will not adequately and fairly reflect the cost to
such Lender of making or maintaining its Loan included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
applicable Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and the
applicable Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any
Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall
be ineffective, and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
Section 3.5 INCREASED COSTS; ILLEGALITY
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Credit Party (except any
such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Credit Party or the London interbank market
any other condition affecting this Credit Agreement, any Eurodollar
Loans made by such Credit Party or any participation therein or any
Letter of Credit or participation therein,
and the result of any of the foregoing shall be to increase the cost to such
Credit Party of making or maintaining any Eurodollar Loan or the cost to such
Credit Party of issuing, participating in or maintaining any Letter of Credit
hereunder or to increase the cost to such Credit Party or to reduce the amount
of any sum received or receivable by such Credit Party hereunder (whether of
principal, interest or otherwise), then, subject to Section 3.5(c), the Borrower
will pay to such Credit Party such additional amount or amounts as will
compensate such Credit Party for such additional costs incurred or reduction
suffered.
(b) If any Credit Party determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Credit Party's capital or on the capital of such Credit Party's holding
company, if any, as a consequence of this Credit Agreement or the Loans made,
the Letters of Credit issued or participations therein held by such Credit
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Party to a level below that which such Credit Party or such Credit Party's
holding company could have achieved but for such Change in Law (taking into
consideration such Credit Party's policies and the policies of such Credit
Party's holding company with respect to capital adequacy), then, subject to
Section 3.5(c), from time to time the Borrower will pay to such Credit Party
such additional amount or amounts as will compensate such Credit Party or such
Credit Party's holding company for any such reduction suffered.
(c) A certificate of a Credit Party setting forth the amount or amounts
necessary to compensate such Credit Party or its holding company, as applicable,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Credit Party the amount shown as due on any such certificate within 10 days
after receipt thereof. Notwithstanding anything to the contrary contained in
Section 3.5(a) or Section 3.5(b), in no event shall the Borrower have any
obligation to reimburse any Lender pursuant to such Sections for any additional
costs incurred or reductions suffered by such Lender more than 90 days prior to
receipt by the Borrower of such certificate.
(d) Subject to the limitation set forth in Section 3.5(c), failure or
delay on the part of any Credit Party to demand compensation pursuant to this
Section shall not constitute a waiver of such Credit Party's right to demand
such compensation.
(e) Notwithstanding any other provision of this Credit Agreement, if,
after the Effective Date, any Change in Law shall make it unlawful for any
Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing, as applicable, for an additional Interest Period
shall, as to such Lender only, be deemed a request for an ABR Loan (or
a request to continue an ABR Loan as such for an additional Interest
Period or to convert a Eurodollar Loan into an ABR Loan, as
applicable), unless such declaration shall be subsequently withdrawn;
and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans, as of
the effective date of such notice as provided in the last sentence of
this paragraph.
In the event any Lender shall exercise its rights under (i) or (ii) of this
paragraph, all payments and prepayments of principal that would otherwise have
been applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be applied
to repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of,
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such Eurodollar Loans, as applicable. For purposes of this paragraph, a notice
to the Borrower by any Lender shall be effective as to each Eurodollar Loan made
by such Lender, if lawful, on the last day of the Interest Period currently
applicable to such Eurodollar Loan; in all other cases such notice shall be
effective on the date of receipt by the Borrower.
Section 3.6 BREAK FUNDING PAYMENTS
In the event of (a) the payment or prepayment (voluntary or
otherwise) of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.7(e) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period or maturity date applicable thereto as a result of a request by any
Borrower pursuant to Section 3.8(b), then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. Such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the amount of
interest that would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest that would accrue on such principal
amount for such period at the interest rate that such Lender would bid were it
to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the eurodollar market. A certificate of
any Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
Section 3.7 TAXES
(a) Any and all payments by or on account of any obligation of any Loan
Party hereunder and under any other Loan Document shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes, PROVIDED
that, if such Loan Party shall be required to deduct any Indemnified Taxes or
Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that, after making all required deductions (including deductions
applicable to additional sums payable under this Section), the applicable Credit
Party receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party shall make such deductions and (iii)
such Loan Party shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
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(c) Each Loan Party shall indemnify each Credit Party, within ten days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by such Credit Party on or with respect to any payment by or on
account of any obligation of such Loan Party under the Loan Documents (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Credit Party, or by the
Administrative Agent on its own behalf or on behalf of a Credit Party, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
relevant Loan Party is located, or any treaty to which such jurisdiction is a
party, with respect to payments under the Loan Documents shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Section 3.8 MITIGATION OBLIGATIONS
(a) If any Lender requests compensation under Section 3.5, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.7,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans or Letters of Credit (or any
participation therein) hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Sections 3.5 or 3.7, as applicable, in the future
and (ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 3.5, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.7, in
an aggregate amount in excess of $25,000, then the Borrower may, at its sole
expense (including the fees referred to in Section 10.4(b)) and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.4), all its interests, rights and
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obligations under the Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); PROVIDED that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is
being assigned, the Issuing Bank and the Swingline Lender), which consent shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 3.5 or payments required
to be made pursuant to Section 3.7, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Credit Parties
that:
Section 4.1 ORGANIZATION; POWERS
Each of the Borrower and the Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
Section 4.2 AUTHORIZATION; ENFORCEABILITY
The Transactions are within the corporate, partnership or
other analogous powers of each of the Borrower and the Subsidiaries to the
extent it is a party thereto and have been duly authorized by all necessary
corporate, partnership or other analogous and, if required, equityholder action.
Each Loan Document has been duly executed and delivered by each of the Borrower
and the Subsidiaries to the extent it is a party thereto and constitutes a
legal, valid and binding obligation thereof, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally.
Section 4.3 GOVERNMENTAL APPROVALS; NO CONFLICTS
The Transactions (a) do not require any consent or approval
of, registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of the Borrower or any of the
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon the Borrower or any of the Subsidiaries or its assets, or give rise to a
right
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thereunder to require any payment to be made by the Borrower or any of the
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of the Subsidiaries (other than Liens
permitted by Section 7.2).
Section 4.4 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE
(a) The Borrower has heretofore furnished to the Credit Parties (i) its
Form 10-K for the fiscal year ended December 31, 2000 containing the
consolidated balance sheet and statements of income, stockholders equity and
cash flows of the Borrower and the Subsidiaries as of and for the fiscal year
ended December 31, 2000, reported on by PricewaterhouseCoopers LLP, independent
public accountants, (ii) its Form 10-Q for the fiscal quarter ended September
30, 2001, containing the consolidated balance sheet and statements of income and
cash flows of the Borrower and the Subsidiaries as of and for the fiscal quarter
and the portion of the fiscal year then ended certified by its chief financial
officer, and (iii) financial projections for the Borrower and its Subsidiaries
for the period January 1, 2002, through December 31, 2002. The consolidated
financial statements referred to in clauses (i) and (ii) above present fairly,
in all material respects, the financial position and results of operations and
cash flows of the Borrower and consolidated Subsidiaries as of such dates and
for the indicated periods in accordance with GAAP and are consistent with the
books and records of the Borrower (which books and records are correct and
complete), subject to year-end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (ii) above.
(b) Except for the Disclosed Matters, the Borrower is unaware that the
Borrower or any Subsidiary has any material undisclosed liability (contingent or
otherwise). Except for Disclosed Matters, since September 30, 2001, there has
been no material adverse change in the business, assets, operations, prospects
or condition, financial or otherwise, of the Borrower and the Subsidiaries,
taken as a whole.
(c) [RESERVED]
Section 4.5 PROPERTIES
(a) Each of the Borrower and the Subsidiaries has good title to, or
valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and the Subsidiaries owns, or is entitled to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and the
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
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(c) Schedule 4.5 sets forth the address of each real property that is
owned or leased by the Borrower or any of the Domestic Subsidiaries.
(d) Neither the Borrower nor any of the Subsidiaries have received
notice of, or have knowledge of, any pending or contemplated condemnation
proceeding affecting any Mortgaged Property or any sale or disposition thereof
in lieu of condemnation. Neither any Mortgaged Property nor any interest therein
is subject to any right of first refusal, option or other contractual right to
purchase such Mortgaged Property or interest therein.
Section 4.6 LITIGATION AND ENVIRONMENTAL MATTERS
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of the
Subsidiaries (i) that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve any Loan Document or any
Transaction.
(b) Except for the Disclosed Matters, and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) have failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) have become subject to any Environmental
Liability, (iii) have received notice of any claim with respect to any
Environmental Liability or (iv) know of any basis for any Environmental
Liability.
(c) Since the Restatement Date, there has been no change in the status
of the Disclosed Matters that, individually or in the aggregate, has resulted
in, or materially increased the likelihood of, a Material Adverse Effect.
Section 4.7 COMPLIANCE WITH LAWS AND AGREEMENTS
Each of the Borrower and the Subsidiaries is in compliance
with all laws, regulations and orders of any Governmental Authority applicable
to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.
Section 4.8 INVESTMENT AND HOLDING COMPANY STATUS
Neither the Borrower nor any of the Subsidiaries are (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
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Section 4.9 TAXES
Each of the Borrower and the Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and
has paid or caused to be paid all Taxes required to have been paid by it, except
(a) Taxes that are being contested in good faith by appropriate proceedings and
for which the Borrower or such Subsidiary, as applicable, has set aside on its
books adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.10 ERISA
No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability
is reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $8,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $8,000,000 the fair
market value of the assets of all such underfunded Plans.
Section 4.11 DISCLOSURE
The Borrower has disclosed to the Credit Parties all
agreements, instruments and corporate or other restrictions to which it or any
of the Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower or any Subsidiary
to any Credit Party in connection with the negotiation of the Loan Documents or
delivered thereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
Section 4.12 SUBSIDIARIES
Schedule 4.12 sets forth the name of, and the ownership
interest of the Borrower in, each Subsidiary and identifies each Subsidiary that
is a Subsidiary Guarantor, in each case as of the Restatement Date.
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Section 4.13 INSURANCE
Schedule 4.13 sets forth a description of all insurance
maintained by or on behalf of the Borrower and the Subsidiaries as of the
Restatement Date. As of the Restatement Date, all premiums in respect of such
insurance that are due and payable have been paid.
Section 4.14 LABOR MATTERS
As of the Restatement Date, there are no strikes, lockouts or
slowdowns against the Borrower or any Subsidiary pending or, to the knowledge of
the Borrower, threatened. The hours worked by and payments made to employees of
the Borrower and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters, except where any such violations, individually and in
the aggregate, would not be reasonably likely to result in a Material Adverse
Effect. All material payments due from the Borrower or any Subsidiary, or for
which any claim may be made against the Borrower or any Subsidiary, on account
of wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of the Borrower or such Subsidiary.
The consummation of the Transactions will not give rise to any right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any Subsidiary is
bound.
Section 4.15 SOLVENCY
Immediately after the consummation of each Transaction and
immediately following the making of each Loan, if any, and the issuance of each
Letter of Credit, if any, made or issued on the date thereof and after giving
effect to the application of the proceeds of such Loan and such Letter of
Credit, (a) the fair value of the assets of the Borrower and the Subsidiaries,
taken as a whole, at a fair valuation, will exceed their debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of the Borrower and the Subsidiaries, taken as a whole, will be
greater than the amount that will be required to pay the probable liability of
their debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured; (c) each of the
Borrower and the Subsidiary Guarantors will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each of the Borrower and the
Subsidiary Guarantors will not have unreasonably small capital with which to
conduct the business in which it is engaged as such business is now conducted
and is proposed to be conducted following such date.
Section 4.16 SECURITY DOCUMENTS
(a) Each of the Supplemental Security Agreement and the Security
Agreement is effective to create in favor of the Administrative Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Collateral (as defined in the Supplemental Security Agreement or
the Security Agreement) and, when (i) the pledged property constituting such
Collateral is delivered to the Administrative Agent, (ii) financing statements
in appropriate form are filed in the offices specified on Schedule 6 to the
Perfection Certificate, (iii) all other applicable filings under the Uniform
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Commercial Code or otherwise that are required under the Loan Documents are
made, and (iv) all control agreements required by the terms of the Supplemental
Security Agreement shall have been executed and delivered by the appropriate
parties thereto, each of the Supplemental Security Agreement and the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral and
such Supplemental Collateral (other than the Intellectual Property (as defined
in the Security Agreement) and other than Deposit Accounts and Securities
Accounts (as defined in the Supplemental Security Agreement) with respect to
which a control agreement is not required to be delivered pursuant to the
Supplemental Security Agreement), in each case prior and superior in right to
any other Person, other than with respect to Liens expressly permitted by
Section 7.2.
(b) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Borrower and the Subsidiary Guarantors in
the Intellectual Property (as defined in the Security Agreement) in which a
security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person, other
than with respect to Liens expressly permitted by Section 7.2 (it being
understood that subsequent recordings in the United States Patent and Trademark
Office and the United States Copyright Office may be necessary to perfect a Lien
on registered trademarks, trademark applications and copyrights acquired by the
Borrower and the Subsidiary Guarantors after the Restatement Date).
(c) The Mortgages, if any, are effective to create, subject to the
exceptions listed in each title insurance policy covering such Mortgage, in
favor of the Administrative Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable Lien on all of the right, title and
interest of the Borrower and the Subsidiary Guarantors in and to the Mortgaged
Properties thereunder and the proceeds thereof, and when such Mortgages are
filed in the appropriate offices, such Mortgages shall constitute a Lien on, and
security interest in, all right, title and interest of the Borrower and the
Subsidiary Guarantors in such Mortgaged Properties and the proceeds thereof, in
each case prior and superior in right to any other Person, other than with
respect to the rights of Persons pursuant to Liens expressly permitted by
Section 7.2.
Section 4.17 FEDERAL RESERVE REGULATIONS
(a) Neither the Borrower nor any of the Subsidiaries are engaged
principally, or as one of their important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, to purchase,
acquire or carry any Margin Stock or for any purpose that entails a violation
of, or that is inconsistent with, the provisions of the regulations of the
Board, including Regulation T, U or X.
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ARTICLE 5. CONDITIONS
Section 5.1 CLOSING DATE
In addition to the requirements set forth in Section 10.6,
this Credit Agreement shall not become effective until the date (the "CLOSING
DATE") at which each of the following conditions is satisfied (or waived in
accordance with Section 10.2):
(a) The Administrative Agent (or its counsel) shall have received from
the Borrower and Required Lenders either (i) a counterpart of this Credit
Agreement signed on behalf of such party or (ii) written evidence satisfactory
to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Credit Agreement) that such party has signed a
counterpart of this Credit Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Credit Parties and dated the Restatement Date) from
Jones, Day, Reavis & Pogue on behalf of the Loan Parties, substantially in the
form of Exhibit B, and covering such other matters relating to the Loan Parties,
the Loan Documents and the Transactions as the Required Lenders shall reasonably
request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received counterparts of the
Supplemental Security Agreement signed on behalf of the Borrower and each
Subsidiary Guarantor, together with the following:
(i) any certificated securities representing Equity Interests
owned by or on behalf of any Loan Party constituting Supplemental
Collateral as of the Restatement Date after giving effect to the
Transactions occurring on or before the Restatement Date;
(ii) stock powers and instruments of transfer, endorsed in
blank, with respect to such certificated securities;
(iii) all instruments and other documents, including Uniform
Commercial Code financing statements, required by law or reasonably
requested by the Administrative Agent to be filed, registered or
recorded to create or perfect the Liens intended to be created under
the Supplemental Security Agreement; and
(iv) the results of a search of the Uniform Commercial Code
(or equivalent) filings made with respect to the Loan Parties in the
jurisdictions contemplated by the Security Agreement and the
Supplemental Security Agreement and copies of the financing statements
(or similar documents) disclosed by such search and evidence reasonably
satisfactory to the Administrative Agent that the Liens indicated by
such financing statements (or similar documents) are permitted by
Section 7.2 or have been released.
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(d) The Administrative Agent shall have received counterparts of
Amendment No. 1 to the Security Agreement, in form and substance satisfactory to
the Administrative Agent, signed on behalf of the Borrower and each Subsidiary
Guarantor.
(e) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each Loan Party,
the authorization of the Transactions and any other legal matters relating to
the Loan Parties, the Loan Documents or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(f) The Administrative Agent shall have received executed copies of the
New Preferred Stock Documents, in form and substance satisfactory to the
Administrative Agent and its counsel.
(g) The Borrower shall have received not less than $40,000,000 in gross
proceeds from the issuance of the New Preferred Stock and shall have provided
evidence (reasonably satisfactory to the Administrative Agent) to the
Administrative Agent thereof, and the Administrative Agent shall have received,
as a pro rata prepayment of the Term Loans, an amount not less than $48,000,000.
(h) The Administrative Agent shall have received the fees and expenses
as provided in Section 3.3(c).
(i) The Administrative Agent shall have received a certificate, dated
the Restatement Date and signed by the chief executive officer or the chief
financial officer of each of the Borrower and the Subsidiaries, in all respects
satisfactory to the Administrative Agent, confirming that, on and as of the
Restatement Date and immediately to occur thereon, (i) the representations and
warranties thereof set forth in the Loan Documents shall be true and correct and
(ii) no Default shall have occurred and be continuing.
The Administrative Agent shall notify the Borrower and the Credit Parties of the
Closing Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, this Credit Agreement shall not become effective (and the Lenders
shall have no obligation to make Revolving Loans and the Issuing Bank shall have
no obligation to issue Letters of Credit) unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00
p.m., New York City time, on March 31, 2002.
Section 5.2 EACH CREDIT EVENT
The obligation of each Lender to make a Loan on the occasion
of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend a
Letter of Credit, is subject to the satisfaction of the following conditions:
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(a) The representations and warranties of the Borrower set forth in
this Credit Agreement shall be true and correct on and as of the date of such
Borrowing or the date of such issuance, amendment, renewal or extension, as
applicable.
(b) The Administrative Agent shall have received a certificate of the
chief executive officer or the chief financial officer of the Borrower
confirming that, at the time of and immediately after giving effect to such
Borrowing or such issuance, amendment, renewal or extension, as applicable, (i)
no Default shall have occurred and be continuing, (ii) such Borrowing or such
issuance, amendment, renewal or extension, as applicable, is permitted by the
Subordinated Public Debt Indenture and the Subordinated Public Notes to be
incurred, (iii) such Borrowing or such issuance, amendment, renewal or
extension, as applicable, is permitted by the Senior Secured Indenture Debt
Documents to be incurred, and (iv) the Borrower and its Subsidiaries, taken as a
whole, have less than $7,500,000 of cash and cash equivalents (after giving
effect to the substantially simultaneous application of the proceeds of any
Borrowing).
(c) With respect to Borrowings requested after the Term Loan Prepayment
Date, the Administrative Agent shall have received a Borrowing Base Certificate
setting forth the Borrowing Base as of the previous Business Day.
(d) The Administrative Agent shall have received such other
documentation and assurances as shall be reasonably required by it in connection
therewith.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE 6. AFFIRMATIVE COVENANTS
Until the Revolving Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees and other amounts payable
under the Loan Documents shall have been paid in full and all Letters of Credit
have expired and all LC Disbursements have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
Section 6.1 FINANCIAL STATEMENTS AND OTHER INFORMATION
The Borrower will furnish, or cause to be furnished, to the
Administrative Agent and, provided that the Administrative Agent shall have
furnished to the Borrower the name and address of each Lender promptly after any
written request by the Borrower therefor (which the Administrative Agent hereby
agrees to do), each Lender:
(a) within 90 days after the end of each fiscal year, its Form 10-K
containing its audited consolidated balance sheet and related statements of
income, stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by PricewaterhouseCoopers LLP or other independent
public
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accountants of recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 90 days after the end of each fiscal year, (i) its
consolidating balance sheets and related statements of income, stockholders'
equity and cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year and (ii) an
unaudited income statement for each of the Borrower's business lines, all
certified by one of its Financial Officers as presenting fairly in all material
respects the results of operations of the Borrower on a consolidating basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its Form 10-Q containing its consolidated balance
sheet and related statements of income, stockholders' equity and cash flows as
of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year;
(d) at all times prior to the date of the prepayment of the principal
of, and interest on, the Term Loans in full, as promptly as practicable but in
any event not later than:
(i) each Wednesday of each week commencing on first such date
to occur after the Restatement Date, (1) a cash receipts and
disbursements forecast on a week by week basis for the six consecutive
week period commencing on the Saturday immediately succeeding such
Wednesday, (2) an actual cash receipts and disbursements report for the
week, and the four week period, ended on the Friday immediately
preceding such Wednesday, and (3) a report comparing such actual cash
receipts and disbursements for such week and for such four week period
to the respective amounts previously forecast therefor; and
(ii) the 30th day after the end of each calendar month,
commencing with the calendar month ending December 31, 2001, (1) its
consolidated and consolidating balance sheet and related statements of
income, stockholders' equity and cash flows as of the end of and for
such month and the then elapsed portion of the fiscal year, setting
forth (to the extent available) in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all
material respects the results of operations of the Borrower on a
consolidating basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes, and (2) in reasonable detail with respect to the Borrower
and the Subsidiaries, a pacing report for all trade shows and
publications, and an accounts payable report, in each case referred to
in this clause (2) as of such month end;
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(e) concurrently with any delivery of financial statements under
clauses (a) or (c) above, a compliance certificate of a Financial Officer,
substantially in the form of Exhibit E, (i) certifying as to whether a Default
has occurred and, if a Default has occurred, specifying the details thereof and
any action taken or proposed to be taken with respect thereto, (ii) setting
forth (A) in the event that such compliance certificate is in respect of a
period ending prior to the Term Loan Prepayment Date, reasonably detailed
calculations demonstrating compliance with Sections 7.13, 7.14, 7.15 and 7.16
and (B) the Subsidiary Guarantors as of the date of such certificate, (iii)
stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 4.4
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate, and (iv) with respect to
the Borrower and the Subsidiaries, analyses (each in reasonable detail) of top
publications and trade shows, setting forth (to the extent available) in each
case in comparative form the figures for the corresponding period or periods of
the previous fiscal year, such analyses to include information regarding
revenue, EBITDA, exhibitors, attendees, square footage, re-sign rates,
cancellations and ad pages;
(f) concurrently with any delivery of financial statements under clause
(a) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
(g) by no later than December 31 of each fiscal year, a budget and
business plan for the immediately succeeding fiscal year in the form approved by
the Borrower's board of directors, together with a business forecast for such
succeeding fiscal year, all in form, scope and detail satisfactory to the
Administrative Agent and on a quarterly basis for each fiscal quarter of such
succeeding fiscal year;
(h) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be;
(i) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of the Loan Documents,
as the Administrative Agent or any Lender may reasonably request; and
(j) At all times after the Term Loan Prepayment Date, as promptly as
practicable but in any event not later than the 5th day after the end of each
calendar month, a Borrowing Base Certificate setting forth the Borrowing Base as
of last Business Day of such calendar month, together with a detailed aging
report with respect to the Receivables.
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Section 6.2 NOTICES OF MATERIAL EVENTS
The Borrower will furnish to the Administrative Agent and each
Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could in the
good faith opinion of the Borrower reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and the Subsidiaries in an aggregate amount exceeding
$3,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.2 shall be accompanied by a statement
of a Financial Officer or other executive officer of the Borrower setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
Section 6.3 EXISTENCE; CONDUCT OF BUSINESS
The Borrower will, and will cause each of the Subsidiary
Guarantors to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect (a) its legal existence, and (b) the rights,
licenses, permits, privileges and franchises material to the conduct of its
business, PROVIDED that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.3.
Section 6.4 PAYMENT OF OBLIGATIONS
The Borrower will, and will cause each of the Subsidiaries to,
pay its obligations, including Tax liabilities, that, if not paid, could result
in a Material Adverse Effect before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
Section 6.5 MAINTENANCE OF PROPERTIES
The Borrower will, and will cause each of the Subsidiaries to,
keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
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Section 6.6 BOOKS AND RECORDS; INSPECTION RIGHTS; RECEIVABLES AUDITS
(a) The Borrower will, and will cause each of the Subsidiaries
to, keep proper books of record and account in which full, true and correct
entries are made of all dealings and transactions in relation to its business
and activities. The Borrower will, and will cause each of the Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at
such reasonable times and as often as reasonably requested.
(b) Following the Term Loan Prepayment Date, the Borrower will
furnish from time to time to the Administrative Agent and each Lender having a
Revolving Commitment or Revolving Loans an audit report, prepared by a
nationally recognized receivables auditing firm (at the sole cost and expense of
the Borrower) in all respects satisfactory to the Administrative Agent, relating
to the Receivables of the Borrower and the Subsidiaries, which report shall be
in form and substance reasonably satisfactory to the Administrative Agent and
the Required Lenders, (i) initially, within 60 days following the Term Loan
Prepayment Date, and (ii) thereafter, no less frequently than annually.
Section 6.7 COMPLIANCE WITH LAWS
The Borrower will, and will cause each of the Subsidiaries to,
comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
Section 6.8 USE OF PROCEEDS
The proceeds of the Loans and the Letters of Credit will be
used only (a) to refinance certain existing Indebtedness, (b) to make
investments not inconsistent with the terms hereof, and (c) for working capital
and other general corporate purposes not inconsistent with the terms hereof. No
part of the proceeds of any Loan or any Letter of Credit will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase, acquire or carry any Margin Stock or for any purpose that entails a
violation of any of the regulations of the Board, including Regulations T, U and
X.
Section 6.9 INFORMATION REGARDING COLLATERAL
(a) The Borrower will furnish to the Administrative Agent prompt
written notice of any change in (i) the legal name of any Loan Party or in any
trade name used to identify it in the conduct of its business or in the
ownership of its properties, (ii) the location of the chief executive office of
any Loan Party, its principal place of business, any office in which it
maintains books or records relating to Collateral owned or held by it or on its
behalf or any office or facility at which Collateral owned or held by it or on
its behalf with an aggregate book value in excess of $50,000 is located
(including the establishment of any such new office or facility), or the
jurisdiction of organization for any Loan Party,
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(iii) the identity or organizational structure of any Loan Party such that a
filed financing statement becomes misleading or (iv) the Federal Taxpayer
Identification Number or Organizational Identification Number of any Loan Party.
The Borrower agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Administrative
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Borrower also agrees
promptly to notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to paragraphs (a) and (b) of
Section 6.1, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer and the chief legal officer of the Borrower,
(i) setting forth the information required pursuant to Section 5 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate or the date of the most
recent certificate delivered pursuant to this Section and (ii) certifying that
all Uniform Commercial Code financing statements or other appropriate filings,
recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above or otherwise, and all other
actions have been taken, to the extent necessary to protect and perfect the
security interests under each of the Supplemental Security Agreement and the
Security Agreement for a period of not less than 18 months after the date of
such certificate (except as noted therein with respect to any continuation
statements to be filed within such period).
Section 6.10 INSURANCE
(a) The Borrower will, and will cause each of the Subsidiaries to,
maintain, with financially sound and reputable insurance companies, (a) adequate
insurance for its insurable properties, all to such extent and against such
risks, including fire, casualty, business interruption and other risks insured
against by extended coverage, as is customary with companies in the same or
similar businesses operating in the same or similar locations and (b) such other
insurance as is required pursuant to the terms of any Security Document.
Section 6.11 CASUALTY AND CONDEMNATION
(a) The Borrower will furnish to the Administrative Agent and the
Lenders prompt written notice of any casualty or other insured damage to any
portion of any Collateral or the commencement of any action or proceeding for
the taking of any Collateral or any part thereof or interest therein under power
of eminent domain or by condemnation or similar proceeding.
(b) If any event described in paragraph (a) of this Section results in
Net Proceeds (whether in the form of insurance proceeds, condemnation award or
otherwise), the Administrative Agent is authorized to collect such Net Proceeds
and, if received by the Borrower or any Subsidiary, such Net Proceeds shall be
paid over to the Administrative Agent, PROVIDED that (i) to the extent that the
Borrower or any of the Subsidiaries intends to use any such Net Proceeds to
repair, restore, reinvest or
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replace assets of the Borrower or any of the Subsidiaries as provided in the
proviso of the definition of the term "Net Proceeds", the Administrative Agent
shall, subject to the provision of such proviso, deliver such Net Proceeds to
the Borrower, (ii) otherwise, the Administrative Agent shall, and the Borrower
hereby authorizes the Administrative Agent to, apply such Net Proceeds, to the
extent that they are Net Proceeds, to prepay the Loans in accordance with
Section 2.7 and (iii) all proceeds of business interruption insurance shall be
paid over to the Borrower unless a Default has occurred and is continuing.
(c) If any Net Proceeds retained by or paid over to the Administrative
Agent as provided in paragraphs (a) and (b) of this Section continue to be held
by the Administrative Agent on the date that is 180 days after the receipt of
such Net Proceeds, then such Net Proceeds shall be applied to prepay Borrowings
as provided in Section 2.7(b).
Section 6.12 ADDITIONAL SUBSIDIARIES
If any Domestic Subsidiary is formed or acquired after the
Restatement Date, the Borrower will notify the Administrative Agent and the
Lenders in writing thereof no later than the fifth Business Days before the date
on which such Domestic Subsidiary is formed or acquired and the Borrower will
cause such Domestic Subsidiary to (i) execute and deliver the Guarantee
Agreement (or otherwise become a party thereto in the manner provided therein)
and become a party to each applicable Security Document in the manner provided
therein, in each case on or prior to the date on which such Domestic Subsidiary
is formed or acquired, and (ii) promptly take such actions to create and perfect
Liens on such Subsidiary's assets to secure the Obligations as the
Administrative Agent or the Required Lenders shall reasonably request.
Section 6.13 FURTHER ASSURANCES
(a) The Borrower will, and will cause each Subsidiary Guarantor to,
execute any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, Mortgages and other
documents), that may be required under any applicable law, or which the
Administrative Agent or the Required Lenders may reasonably request, to
effectuate the transactions contemplated by the Loan Documents or to grant,
preserve, protect or perfect the Liens created or intended to be created by the
Security Documents or the validity or priority of any such Lien, all at the
expense of the Borrower and the Subsidiary Guarantors. The Borrower also agrees
to provide to the Administrative Agent, from time to time upon request, evidence
reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Security
Documents.
(b) If any material assets (including any real property or improvements
thereto or any interest therein (other than a leasehold interest)) are acquired
by the Borrower or any Subsidiary Guarantor after the Effective Date (other than
assets constituting Collateral under the Security Documents that become subject
to the Lien of the Security Agreement or the Supplemental Security Agreement
upon acquisition thereof), the Borrower will notify the Administrative Agent and
the Lenders thereof. If requested by the Administrative Agent or the Required
Lenders, the Borrower will cause
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such assets (or any other assets or property (whether currently owned or
hereafter acquired) of the Borrower or any Subsidiary) to be subjected to a Lien
securing the Obligations and will take, and cause the Subsidiary Guarantors to
take, such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Borrower
and the Subsidiary Guarantors, provided that nothing herein shall obligate the
Borrower or any Subsidiary to grant any leasehold mortgage.
(c) If the Administrative Agent or the Required Lenders shall have
requested any mortgage or other lien on real property (or any interest therein)
pursuant to paragraph (b) of this Section (other than a leasehold interest), the
Borrower shall promptly deliver to the Administrative Agent (i) counterparts of
a Mortgage with respect to each Mortgaged Property signed on behalf of the
record owner/leasehold owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title insurance
company, insuring the Lien of each such Mortgage as a valid first Lien on the
Mortgaged Property described therein, free of any other Liens except as
permitted by Section 7.2, in form and substance reasonably acceptable to the
Administrative Agent, together with such endorsements, coinsurance and
reinsurance as the Administrative Agent or the Required Lenders may reasonably
request, (iii) such surveys as may be required pursuant to such Mortgages or as
the Administrative Agent or the Required Lenders may reasonably request, (iv) a
copy of the original permanent certificate or temporary certificate of occupancy
as the same may have been amended or issued from time to time, covering each
improvement located upon the Mortgaged Properties, that were required to have
been issued by the appropriate Governmental Authority for such improvement and
have been provided to the Borrower, (v) if requested by the Administrative
Agent, a phase I environmental report for each Mortgaged Property, each such
report to be reasonably satisfactory to the Administrative Agent, (vii) such
opinions of local counsel to the Borrower and the Subsidiaries with respect to
the Mortgages as the Administrative Agent shall require and (viii) such other
customary documentation with respect to the Mortgages and the Mortgaged Property
as the Administrative Agent or the Required Lenders may reasonably request.
Section 6.14 ENVIRONMENTAL COMPLIANCE
The Borrower shall, and shall cause each of its Subsidiaries
to, use and operate all of its facilities and property in compliance with all
Environmental Laws, keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental matters in effect
and remain in compliance therewith, and handle all Hazardous Materials in
compliance with all applicable Environmental Laws, except where noncompliance
with any of the foregoing could not reasonably be expected to have a Material
Adverse Effect.
Section 6.15 INTEREST RATE PROTECTION ARRANGEMENTS
The Borrower will maintain Interest Rate Protection
Arrangements, each in form and substance satisfactory to the Administrative
Agent, covering at least 50% of the aggregate outstanding principal amount of
the Term Loans, which agreements shall have an initial term of at least 3 years.
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Section 6.16 CONTROL AGREEMENTS
No later than April 15, 2002, (a) the Borrower shall have
delivered to the Administrative Agent all Securities Account Control Agreements
and Deposit Account Control Agreements as defined in and required by the
Supplemental Security Agreement, duly executed by each Loan Party thereto and
the applicable depository bank or securities intermediary and (b) the
Administrative Agent shall have received a favorable written opinion (addressed
to the Credit Parties and dated the date of delivery of the last of the
Securities Account Control Agreements and Deposit Account Control Agreements
referenced in clause (a)) from Jones, Day, Reavis & Pogue on behalf of the Loan
Parties, in form and substance reasonably satisfactory to the Administrative
Agent, covering such matters relating to the Loan Parties and such Securities
Account Control Agreements and Deposit Account Control Agreements. The Borrower
shall request that such counsel deliver such opinion.
ARTICLE 7. NEGATIVE COVENANTS
Until the Revolving Commitments have expired or been
terminated and the principal of and interest on each Loan and all fees and other
amounts payable under the Loan Documents shall have been paid in full and all
Letters of Credit have expired and all LC Disbursements have been reimbursed,
the Borrower covenants and agrees with the Lenders that:
Section 7.1 INDEBTEDNESS
(a) The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) Indebtedness existing on the Restatement Date and set
forth in Schedule 7.1(a), including any extensions, renewals or
replacements of any such Indebtedness that (A) do not increase the
principal amount of such Indebtedness, and (B) are on terms not
otherwise more disadvantageous to the Lenders;
(iii) Indebtedness of the Borrower or any Subsidiary incurred
to finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof, PROVIDED that (A) such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement, and (B) the aggregate principal amount of
Indebtedness permitted by this clause (iii) shall not exceed $3,000,000
at any time outstanding;
(iv) Indebtedness of the Borrower to any Subsidiary Guarantor
and of any Subsidiary Guarantor to the Borrower or any other Subsidiary
Guarantor;
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(v) Guarantees by the Borrower of Indebtedness (other than the
Subordinated Public Debt and the Senior Secured Indenture Debt) of any
Subsidiary Guarantor and by any Subsidiary Guarantor of Indebtedness
(other than the Subordinated Public Debt and the Senior Secured
Indenture Debt) of the Borrower or any other Subsidiary Guarantor;
(vi) the Subordinated Public Debt;
(vii) Indebtedness of the Borrower in respect of the
Subordinated ABRY Debt, PROVIDED that (A) promptly after each
incurrence thereof, the Borrower shall have delivered a copy of all
instruments and other documents governing such Indebtedness to the
Administrative Agent and each Lender, (B) by its terms, the
Subordinated ABRY Debt (1) has a scheduled maturity date which is not
earlier than one year after the B Term Loan Maturity Date, (2) provides
that no payments of principal thereof or interest thereon (other than
payments in kind or capitalization of interest) shall be due or payable
prior to the date that is one year after the B Term Loan Maturity Date,
and (3) does not bear interest at a rate per annum in excess of 15%,
(C) the Subordinated ABRY Debt is on terms and is evidenced by a
promissory note in form and substance satisfactory to the
Administrative Agent and Required Lenders, and (D) the proceeds of each
incurrence of Subordinated ABRY Debt shall be used by the Borrower,
simultaneously with the incurrence thereof, to prepay the Terms Loans,
pro rata, and/or the Revolving Loans, as elected by the Borrower;
(viii) Indebtedness in respect of the Senior Secured Indenture
Debt, PROVIDED that (A) the Senior Secured Indenture Debt Documents are
in form and substance satisfactory to the Administrative Agent and
Required Lenders, (B) the Administrative Agent and the trustee under
the Senior Secured Indenture shall have entered into an intercreditor
agreement, in form and substance satisfactory to the Administrative
Agent (the "INTERCREDITOR AGREEMENT"), (C) the proceeds of the issuance
of the Senior Secured Notes shall have been applied to prepay the Term
Loans in full and (D) promptly after the incurrence thereof, the
Borrower shall have delivered a copy of all Senior Secured Indenture
Debt Documents to the Administrative Agent and each Lender; and
(ix) unsecured Indebtedness of the Borrower in an aggregate
amount not exceeding $2,500,000 at any time.
(b) The Borrower will not, and it will not permit any Subsidiary to, be
or become liable in respect of any Contingent Obligation, other than those
existing Contingent Obligations listed on Schedule 7.1(b). For purposes hereof,
"CONTINGENT OBLIGATION" means any obligation for the deferred purchase price of
property under, or incurred in connection with, any asset purchase agreement,
stock purchase agreement, joint venture agreement or other similar agreement,
PROVIDED that "Contingent Obligation" shall not include any such obligation to
the extent payable solely and exclusively in Equity Interests (other than the
Disqualified Equity) in the Borrower.
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Section 7.2 LIENS
The Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the Restatement Date and set forth in Schedule 7.2, PROVIDED that
(i) such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the Restatement Date and any extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(d) security interests on fixed or capital assets acquired, constructed
or improved by the Borrower or any Subsidiary, PROVIDED that (i) such security
interests secure only Indebtedness permitted by clause (iii) of Section 7.1,
(ii) such security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets and (iv) such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary; and
(e) Liens in respect of the Senior Secured Indenture Debt to the extent
such Liens meet the requirements set forth in clause (a) or (b) of the defined
term "Senior Secured Indenture Debt Documents".
Section 7.3 FUNDAMENTAL CHANGES; LINES OF BUSINESS
(a) The Borrower will not, and will not permit any Subsidiary to, merge
into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially all of
its assets, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto, no Default shall have occurred and be
continuing:
(i) any Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving entity, any
Subsidiary may merge into any Subsidiary Guarantor in a transaction in
which such Subsidiary Guarantor is the surviving entity and any
Subsidiary that is not a Subsidiary Guarantor may merge into any other
Subsidiary that is not a Subsidiary Guarantor;
(ii) any Subsidiary may merge with any Person in a transaction
that is not permitted by clause (i) of this Section 7.3(a), PROVIDED
that such merger is permitted by Sections 7.4 or 7.5, as applicable;
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(iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of its assets to the Borrower or to any Subsidiary Guarantor;
(iv) the Borrower or any Subsidiary may sell, transfer, lease
or otherwise dispose of its assets in a transaction that is not
permitted by clause (iii) of this Section 7.3(a), PROVIDED that such
sale, transfer, lease or other disposition is also permitted by Section
7.5; and
(v) any Subsidiary (other than a Subsidiary Guarantor) may
liquidate or dissolve if the Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders.
(b) The Borrower will not, and will not permit any of the Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Borrower and the Subsidiaries on the Restatement Date and
businesses directly related thereto.
Section 7.4 INVESTMENTS, LOANS, ADVANCES, GUARANTEES, ACQUISITIONS AND
CAPITAL EXPENDITURES
The Borrower will not, and will not permit any of the
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger)
any capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, make or permit to exist any Guarantee
of any obligations of, or make or permit to exist any investment or any other
interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions (including pursuant to any merger)) any
assets of any other Person constituting a business unit, or make any Capital
Expenditure, except:
(a) Permitted Investments;
(b) investments, loans and advances existing on the
Restatement Date and set forth in Schedule 7.4;
(c) investments made by the Borrower in the Equity Interests
of any Subsidiary Guarantor and made by any Subsidiary Guarantor in the
Equity Interests of any other Subsidiary Guarantor;
(d) loans or advances made by the Borrower to any Subsidiary
Guarantor and made by any Subsidiary to the Borrower or any Subsidiary
Guarantor, PROVIDED that any such loans and advances made by a Loan
Party shall be evidenced by a promissory note which shall be pledged
pursuant to the Security Agreement;
(e) acquisitions made by (i) the Borrower from any Subsidiary
Guarantor, (ii) any Subsidiary Guarantor from the Borrower or any other
Subsidiary Guarantor and (iii) any Subsidiary that is not a Subsidiary
Guarantor from any other Subsidiary that is not a Subsidiary Guarantor;
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(f) Guarantees permitted by Section 7.1; and
(g) Capital Expenditures made by the Borrower or any
Subsidiary, PROVIDED that immediately after giving effect to each such
Capital Expenditure, the aggregate amount of all Capital Expenditures
made by the Borrower and the Subsidiaries on a consolidated basis would
not exceed $8,000,000 in any fiscal year.
Section 7.5 ASSET SALES; ISSUANCE OF EQUITY INTERESTS BY SUBSIDIARIES
The Borrower will not, and will not permit any of the
Subsidiaries to, sell, transfer, lease or otherwise dispose (including pursuant
to a merger) of any asset or grant an option to purchase any asset (which term
shall include any Equity Interest owned by such Person), nor will the Borrower
permit any of the Subsidiaries to issue any additional Equity Interests, except:
(a) sales, transfers, leases and other dispositions of
inventory, used or surplus equipment and Permitted Investments, in each
case in the ordinary course of business;
(b) sales, transfers, leases and other dispositions made by
(i) the Borrower to any Subsidiary Guarantor, (ii) any Subsidiary
Guarantor to the Borrower or any other Subsidiary Guarantor and (iii)
any Subsidiary that is not a Subsidiary Guarantor to any other
Subsidiary that is not a Subsidiary Guarantor;
(c) issuances of Equity Interests by any Subsidiary to the
Borrower or any wholly-owned Subsidiary of the Borrower; and
(d) other sales, transfers, leases and other dispositions of
assets, and issuances of Equity Interests (other than Disqualified
Equity) by the Subsidiaries, PROVIDED that (i) (A) the aggregate fair
market value of all assets, sold, transferred, leased or otherwise
disposed of, and Equity Interests issued, in reliance upon this clause
(d) shall not exceed $5,000,000 in the aggregate at any time, (B) all
sales, transfers, leases and other dispositions, and all Equity
Interests issued under, this clause (d) shall be made for fair value
and solely for cash consideration, and (C) at the time thereof and
immediately after giving effect thereto no Default shall have occurred
and be continuing, or (ii) Super-majority Lenders shall have consented
thereto.
Section 7.6 SALE AND LEASE-BACK TRANSACTIONS
The Borrower will not, and will not permit any of the
Subsidiaries to, enter into any arrangement, directly or indirectly, with any
Person whereby it shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such property or other property that it intends to use for
substantially the same purpose or purposes as the property being sold or
transferred.
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Section 7.7 HEDGING AGREEMENTS
The Borrower will not, and will not permit any of the
Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements
entered into in the ordinary course of business to hedge or mitigate risks to
which the Borrower or any Subsidiary is exposed in the conduct of its business
or the management of its liabilities.
Section 7.8 RESTRICTED PAYMENTS
The Borrower will not, and will not permit any of the
Subsidiaries to, declare or make, or agree to pay for or make, directly or
indirectly, any Restricted Payment, except that:
(a) the Borrower may declare and pay dividends with respect to
its Equity Interests payable solely in Equity Interests (other than
Disqualified Equity);
(b) any Subsidiary may declare and pay dividends with respect
to its Equity Interests to the Borrower or any wholly-owned Domestic
Subsidiary and any wholly-owned foreign Subsidiary may declare and pay
dividends with respect to its Equity Interests to the Borrower, any
wholly-owned Domestic Subsidiary or any other wholly-owned foreign
Subsidiary;
(c) the Borrower may make Restricted Payments in the form of
interest paid when due and payable (in accordance with the terms of the
Subordinated Public Notes and the Subordinated Public Debt Indenture,
each as in effect on the Restatement Date) on the Subordinated Public
Debt;
(d) on and after the Term Loan Prepayment Date, the Borrower
may at any time and from time to time purchase one or more Subordinated
Public Notes, PROVIDED, that (i) immediately after giving effect to
each such purchase, the aggregate purchase price for all such purchases
would not exceed $25,000,000, (ii) the Borrower shall have incurred
Senior Secured Indenture Debt of not less than $150,000,000 prior to
the first such purchase, (iii) the Borrower shall not use the proceeds
of any Revolving Borrowing to make any such purchase, (iv) promptly
after the purchase thereof, each such Subordinated Public Note so
purchased shall be permanently cancelled, and (v) immediately before
and after giving effect to each such purchase, no Default shall have
occurred and be continuing; and
(e) the Borrower may prepay the outstanding principal balance
of Subordinated ABRY Debt together with accrued interest thereon,
PROVIDED that (i) immediately before and after giving effect to each
such prepayment, no Default shall or would have occurred and be
continuing, and (ii) immediately before giving effect to each such
prepayment, the Borrower shall have been in compliance with all the
covenants contained in Article 6 and Article 7 for at least two full
consecutive fiscal quarters immediately preceding the date of such
prepayment.
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Section 7.9 TRANSACTIONS WITH AFFILIATES
The Borrower will not, and will not permit any of the
Subsidiaries to, sell, transfer, lease or otherwise dispose (including pursuant
to a merger) of any property or assets to, or purchase, lease or otherwise
acquire (including pursuant to a merger) any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
in the ordinary course of business at prices and on terms and conditions not
less favorable to the Borrower or such Subsidiary than could be obtained on an
arms-length basis from unrelated third parties, PROVIDED that this Section shall
not apply to any transaction that is permitted under Sections 7.1, 7.3, 7.4, 7.5
or 7.8 between or among the Loan Parties and not involving any other Affiliate.
Notwithstanding anything in this Credit Agreement to the contrary, the Borrower
shall be permitted to restructure, or otherwise reduce amounts owing on, the
loans made by the Borrower pursuant to the Executive Loan Program referenced on
Schedule 7.4 hereto by way of forgiveness of indebtedness, issuance of Equity
Interests to the obligors on such loans, receipt of Equity Interests of the
Borrower, or otherwise, so long as such restructuring or reduction does not
involve the payment of cash by the Borrower.
Section 7.10 RESTRICTIVE AGREEMENTS
The Borrower will not, and will not permit any of the
Subsidiaries to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets (1) to
secure the Obligations, or (2) to secure any Indebtedness or other liability
that refinances all or any portion of the Obligations, or (b) the ability of any
Subsidiary (1) to pay dividends or other distributions with respect to any
shares of its equity securities (other than restrictions or conditions that
require any such dividend or distribution to be made to the holders of such
securities on a pro rata basis), (2) to make or repay loans or advances to the
Borrower or any other Subsidiary, or (3) to Guarantee the Obligations or any
Indebtedness or other liability that refinances all or any portion of the
Obligations, PROVIDED that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Credit Agreement, (ii) the foregoing shall
not apply to restrictions and conditions (A) contained in the Senior Secured
Indenture Debt Documents, or (B) existing on the Restatement Date identified on
Schedule 7.10 (but shall apply to any extension or renewal of, or any amendment
or modification expanding the scope of, any such restriction or condition),
(iii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
PROVIDED that such restrictions and conditions apply only to the Subsidiary that
is to be sold and such sale is permitted hereunder, (iv) clause (a) of this
Section shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Credit Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness and (v) clause (a) of this Section shall not apply to customary
provisions in leases restricting the assignment thereof.
Section 7.11 CHANGES TO CERTAIN DOCUMENTS OR FISCAL YEAR
The Borrower will not, nor will it allow any Subsidiary to (a)
enter into or agree to any amendment, supplement or other modification to the
Subordinated Public Debt Indenture, any
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Subordinated Public Note, any Senior Secured Indenture Debt Document, or any
Subordinated ABRY Note, (b) enter into or agree to any amendment, supplement or
other modification to any New Preferred Stock Document other than immaterial
amendments, modifications or supplements that would not reasonably be expected
to adversely affect the Credit Parties, PROVIDED that the Borrower shall deliver
or cause to be delivered to the Administrative Agent and each Lender a copy of
each such amendment, modification or supplement promptly after the execution and
delivery thereof, or (c) change its fiscal year.
Section 7.12 PREPAYMENTS OF INDEBTEDNESS
Except as expressly permitted by Sections 7.8(d) and 7.8(e),
the Borrower will not voluntarily prepay or, except pursuant to the terms of the
Subordinated Public Debt Indenture, the Subordinated ABRY Note, or the Senior
Secured Indenture Debt Documents, obligate itself to prepay, in whole or in
part, any Indebtedness, or permit any of its Subsidiaries so to do, other than
Indebtedness under the Loan Documents.
Section 7.13 INTEREST COVERAGE RATIO
Prior to the Term Loan Prepayment Date, the Borrower will not
permit the Interest Coverage Ratio as of the end of any fiscal quarter during
any period set forth below to be less than the ratio set forth below with
respect to such period:
=============================================================================
PERIOD RATIO
- -----------------------------------------------------------------------------
December 31, 2002 through March 31, 2003 1.00:1.00
- -----------------------------------------------------------------------------
June 30, 2003 through September 30, 2003 1.25:1.00
- -----------------------------------------------------------------------------
December 31, 2003 and thereafter 1.50:1.00
=============================================================================
Section 7.14 FIXED CHARGE COVERAGE RATIO
Prior to the Term Loan Prepayment Date, the Borrower will not
permit the Fixed Charge Coverage Ratio as of the end of any fiscal quarter
(commencing with the fiscal quarter ending December 31, 2003) to be less than
1.00:1.00.
Section 7.15 LEVERAGE RATIO
Prior to the Term Loan Prepayment Date, the Borrower will not
permit the Leverage Ratio at any time during any period set forth below to be
greater than the ratio set forth below with respect to such period:
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==============================================================================
PERIOD RATIO
- ------------------------------------------------------------------------------
June 30, 2003 through September 29, 2003 7.50:1.00
- ------------------------------------------------------------------------------
September 30, 2003 through December 30, 2003 7.25:1.00
- ------------------------------------------------------------------------------
December 31, 2003 through March 30, 2004 7.00:1.00
- ------------------------------------------------------------------------------
March 31, 2004 through June 29, 2004 6.75:1.00
- ------------------------------------------------------------------------------
June 30, 2004 through September 29, 2004 6.50:1.00
- ------------------------------------------------------------------------------
September 30, 2004 and thereafter 6.25:1.00
==============================================================================
Section 7.16 SENIOR LEVERAGE RATIO
Prior to the Term Loan Prepayment Date, the Borrower will not
permit the Senior Leverage Ratio at any time during any period set forth below
to be greater than the ratio set forth below with respect to such period:
==============================================================================
PERIOD RATIO
- ------------------------------------------------------------------------------
June 30, 2002 through September 29, 2002 6.50:1.00
- ------------------------------------------------------------------------------
September 30, 2002 through December 30, 2002 5.50:1.00
- ------------------------------------------------------------------------------
December 31, 2002 through March 30, 2003 4.50:1.00
- ------------------------------------------------------------------------------
March 31, 2003 through June 29, 2003 3.75:1.00
- ------------------------------------------------------------------------------
June 30, 2003 through December 30, 2003 3.50:1.00
- ------------------------------------------------------------------------------
December 31, 2003 through December 30, 2004 3.25:1.00
- ------------------------------------------------------------------------------
December 31, 2004 and thereafter 3.00:1.00
==============================================================================
ARTICLE 8. EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or on any
reimbursement obligation in respect of any LC Disbursement or any fee,
commission or any other amount (other than an amount referred to in clause (a)
of this Article) payable under any Loan Document, when and as the same shall
become due and payable, and such failure shall continue unremedied for a period
of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of any Loan Party or any other Subsidiary in or in connection with any Loan
Document or any amendment or modification hereof or waiver thereunder, or in any
report, certificate, financial statement or other document furnished pursuant to
or in connection with any Loan Document or any amendment or modification hereof
or waiver thereunder, shall prove to have been incorrect when made or deemed
made;
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(d) (i) as of any date (each a "measurement date"), the Borrower shall
fail to observe or perform any covenant or agreement contained in Section 7.15
or 7.16, and either (1) within the full fiscal quarter immediately preceding
such measurement date, the Borrower used the proceeds of Subordinated ABRY Debt
to prepay Loans, or (2) within a period of 5 days from the date, if any, that
ABRY shall have been notified in writing thereof by the Borrower, the
Administrative Agent or Required Lenders, the Borrower shall have failed to
prepay (by an aggregate amount that equals or exceeds the amount by which
Indebtedness of the Borrower would have had to have been prepaid in order that
the Borrower would not have been in default under either of such Sections on
such measurement date) the principal balance of the Term Loans, pro rata, and/or
the Revolving Loans, as the Borrower may elect, with the proceeds of
Subordinated ABRY Debt or the issuance of additional Equity Interests by the
Borrower, or (ii) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 6.3(a), 6.8, 6.12 or 6.13 or in
Article 7 (other than Sections 7.15 and 7.16), or any Loan Party shall fail to
observe or perform any covenant, condition or agreement contained in any other
Loan Document;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document to which it is a party
(other than those specified in clause (a), (b) or (d) of this Article), and such
failure shall continue unremedied for a period of 30 days after such Loan Party
shall have obtained knowledge thereof;
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity, PROVIDED that this clause (g) shall not apply
to secured Indebtedness that becomes due solely as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the
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institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $3,500,000 shall be rendered against the Borrower or any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 60 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and the Subsidiaries in an aggregate amount exceeding (i) $2,000,000 in any year
or (ii) $4,000,000 for all periods;
(m) any Loan Document shall cease, for any reason (other than any
omission or commission by any Credit Party), to be in full force and effect, or
any Loan Party shall so assert in writing or shall disavow any of its
obligations thereunder;
(n) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral, with the priority required by the applicable
Security Document, except (i) as a result of the sale or other disposition of
the applicable Collateral in a transaction permitted under the Loan Documents or
(ii) as a result of the Administrative Agent's failure to maintain possession of
any stock certificates, promissory notes or other instruments delivered to it
under the Security Documents; or
(o) a Change in Control shall occur;
(A) then, and in every such event (other than an event described in clause (h)
or (i) of this Article), and at any time thereafter during the continuance of
such event, the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) terminate the Revolving
Commitments, and thereupon the Revolving Commitments shall terminate immediately
and (ii) declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of each Loan Party accrued under the
Loan Documents, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the
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Borrower; and (B) in case of any event described in clause (h) or (i) of this
Article, the Revolving Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of each Loan Party accrued under the Loan
Documents, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE 9. THE ADMINISTRATIVE AGENT
Each Credit Party hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Credit Parties as shall be
necessary under the circumstances as provided in Section 10.2), and (c) except
as expressly set forth herein, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower, any of the Subsidiaries or any other Loan
Party that is communicated to or obtained by the Person serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Credit Parties as shall be necessary under the
circumstances as provided in Section 10.2) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Credit Party (and,
promptly after its receipt of any such notice, it shall give each Credit Party
and the Borrower notice thereof), and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth therein, (iv) the
validity, enforceability, effectiveness or genuineness thereof or any other
agreement, instrument or other document or (v) the
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satisfaction of any condition set forth in Article 5 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent, PROVIDED that no such delegation shall
serve as a release of the Administrative Agent or waiver by the Borrower of any
rights hereunder. The Administrative Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Credit Parties and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor (a) from among the Lenders, or (b)
with the consent of the Borrower (which consent shall not be unreasonably
withheld or delayed or, if an Event of Default shall have occurred and be
continuing, required), other than a Lender. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the Credit
Parties, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.3 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as Administrative
Agent.
Each Credit Party acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Credit Party and
based on such documents and information as it
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has deemed appropriate, made its own credit analysis and decision to enter into
this Credit Agreement. Each Credit Party also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Credit Party and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon any Loan Document, any related agreement or
any document furnished thereunder.
Notwithstanding anything in any Loan Document to the contrary,
no Agent acting in such capacity other than the Administrative Agent shall have
any duty or obligation under the Loan Documents.
ARTICLE 10. MISCELLANEOUS
Section 10.1 NOTICES
Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower, to it at Penton Media, Inc., 1300 East 9th
Street, Cleveland, Ohio 44114, Attention of Joseph NeCastro (Telephone No. (216)
696-7000; Telecopy No. (216) 931-9891);
(b) if to the Administrative Agent, or BNY as Issuing Bank, to it at
One Wall Street, New York, New York 10286, Attention of: Renee Dudley (Telephone
No. (212) 635-4975; Telecopy No. (212) 635-6365 or 6366 or 6367), with a copy to
The Bank of New York, at One Wall Street, New York, New York 10286, Attention
of: Kristen Talaber (Telephone No. (212) 635-8692; Telecopy No. (212) 635-8593);
(c) if to any other Credit Party, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Credit Agreement shall be deemed to have been given on the date of
receipt.
Section 10.2 WAIVERS; AMENDMENTS
(a) No failure or delay by any Credit Party in exercising any right or
power under any Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and
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remedies of the Credit Parties under the Loan Documents are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of any Loan Document or consent to any departure by any
Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
the issuance, amendment, extension or renewal of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether any Credit Party may
have had notice or knowledge of such Default at the time.
(b) Neither this Credit Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the Borrower
and the Administrative Agent with the consent of the Required Lenders, PROVIDED
that no such agreement shall (i) increase any Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or any LC Disbursement, or reduce the rate of interest thereon, or reduce any
fees or other amounts payable under the Loan Documents, or reduce the amount of
any scheduled reduction of the Revolving Commitments, without the written
consent of each Credit Party affected thereby, (iii) postpone the scheduled date
of payment of the principal amount of any Loan or any LC Disbursement, or any
interest thereon, or any fees or other amounts payable under the Loan Documents,
or reduce the amount of, waive or excuse any such payment, postpone the
scheduled date of reduction or expiration of the Revolving Commitments, or
postpone the final expiration date of any Letter of Credit beyond the Revolving
Maturity Date, without the written consent of each Credit Party affected
thereby, (iv) change any provision hereof in a manner that would alter the pro
rata sharing of payments required by any Loan Document, without the written
consent of each Credit Party, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender, (vi) release any Subsidiary
Guarantor from its Guarantee under the Guarantee Agreement (except as expressly
provided in the Guarantee Agreement or as a result of the termination of the
existence of such Subsidiary Guarantor in a transaction permitted by Section
7.3), or limit its liability in respect of such Guarantee, without the written
consent of each Lender, or (vii) release any of the Collateral from the Liens of
the Loan Documents (except as expressly provided in the Security Agreement or in
connection with a transaction permitted by Section 7.3), without the consent of
each Lender, and PROVIDED, further, that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent, the
Swingline Lender or the Issuing Bank hereunder without the prior written consent
of the Administrative Agent, the Swingline Lender or the Issuing Bank, as the
case may be.
Section 10.3 EXPENSES; INDEMNITY; DAMAGE WAIVER
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Credit Agreement or any
amendments,
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modifications or waivers of the provisions of any Loan Document (whether or not
the transactions contemplated thereby shall be consummated), (ii) all
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all fees and out-of-pocket expenses of the
Lender's professionals agreed to by the Borrower, and (iv) all out-of-pocket
expenses incurred by any Credit Party, including the fees, charges and
disbursements of any counsel for any Credit Party, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) The Borrower shall indemnify each Credit Party and each Related
Party thereof (each such Person being called an "INDEMNITEE") against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of any Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties to the Loan Documents of their
respective obligations thereunder or the consummation of the Transactions or any
other transactions contemplated thereby, (ii) any Loan or Letter of Credit or
the use of the proceeds thereof including any refusal of the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
the Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of the Subsidiaries or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto, PROVIDED that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to
be paid by it to the Administrative Agent or the Issuing Bank under paragraphs
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Issuing Bank, as applicable, an amount equal to the
product of such unpaid amount MULTIPLIED BY a fraction, the numerator of which
is the sum of such Lender's Revolving Commitment PLUS the outstanding principal
balance of such Lender's A Term Loan PLUS the outstanding principal balance of
such Lender's B Term Loan and the denominator of which is the sum of the total
of all Lenders' Revolving Commitments PLUS the outstanding principal balance of
all Lenders' A Term Loans PLUS the outstanding principal balance of all Lenders'
B Term Loans (in each case determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of, PROVIDED that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as applicable, was incurred by or asserted against the Administrative
Agent or the Issuing Bank in its capacity as such.
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(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, any Loan Document or any agreement, instrument or other document
contemplated thereby, the Transactions or any Loan or any Letter of Credit or
the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly but in
no event later than ten days after written demand therefor.
Section 10.4 SUCCESSORS AND ASSIGNS
(a) The provisions of this Credit Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Credit Party (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void). Nothing in this Credit
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each Credit Party) any legal or equitable right, remedy or claim
under or by reason of any Loan Document.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Credit Agreement (including all or a
portion of its Revolving Commitment and the Loans at the time owing to it),
PROVIDED that (i) except in the case of an assignment to a Lender or an
Affiliate or an Approved Fund of a Lender, the Administrative Agent (and, in the
case of an assignment of all or any portion of a Revolving Commitment or
obligations in respect of its LC Exposure or Swingline Exposure, the Issuing
Bank and/or the Swingline Lender, as the case may be), must give its prior
written consent to such assignment (which consent shall not be unreasonably
withheld or delayed), (ii) except in the case of an assignment to a Lender or an
Affiliate or an Approved Fund of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Revolving Commitment, the amount of
the Revolving Commitment of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless the Administrative Agent otherwise consents, (iii) the parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance together with, unless otherwise agreed by the
Administrative Agent, a processing and recordation fee of $3,500, and (iv) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under the Loan
Documents, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under the Loan Documents (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's
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rights and obligations under the Loan Documents, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 3.5,
3.6, 3.7 and 10.3). Any assignment or transfer by a Lender of rights or
obligations under the Loan Documents that does not comply with this paragraph
shall be treated for purposes of the Loan Documents as a sale by such Lender of
a participation in such rights and obligations in accordance with paragraph (e)
of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in New York City a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Revolving Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the "REGISTER"). The
entries in the Register shall be conclusive absent clearly demonstrable error,
and the Borrower and each Credit Party may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Credit Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any Credit
Party, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Credit Agreement unless it
has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or any Credit
Party, sell participations to one or more banks or other entities (each such
bank or other entity being called a "PARTICIPANT") in all or a portion of such
Lender's rights and obligations under the Loan Documents (including all or a
portion of its Commitment and the Loans and LC Disbursements owing to it),
PROVIDED that (i) such Lender's obligations under the Loan Documents shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Loan
Parties and the Credit Parties shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under the
Loan Documents. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce the Loan Documents and to approve any amendment, modification or
waiver of any provision of any Loan Documents, PROVIDED that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 10.2(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.5, 3.6 and 3.7 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 10.8 as though it were a
Lender, PROVIDED that such Participant agrees to be subject to Section 2.10(c)
as though it were a Lender.
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(f) A Participant shall not be entitled to receive any greater payment
under Sections 3.5, 3.6 or 3.7 than the Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower's prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.7 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 3.7(e) as though
it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under the Loan Documents to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest, PROVIDED that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations under the
Loan Documents or substitute any such pledgee or assignee for such Lender as a
party hereto.
Section 10.5 SURVIVAL
All covenants, agreements, representations and warranties made
by the Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Credit Agreement or any other
Loan Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of any Loan Document and the
making of any Loans and the issuance of any Letter of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that any Credit Party may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any LC Disbursement or any fee or any
other amount payable under the Loan Documents is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 3.5, 3.6, 3.7 and 10.3 and Article 9
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans and the LC
Disbursements, the expiration or termination of the Letters of Credit and the
termination of the Commitments or the termination of this Credit Agreement or
any provision hereof.
Section 10.6 COUNTERPARTS; INTEGRATION; EFFECTIVENESS
This Credit Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one contract. This Credit Agreement and any separate letter agreements with
respect to fees payable to any Credit Party constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 5.1, this Credit Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of the Borrower and Required Lenders,
and thereafter shall be binding upon and inure to the
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benefit of the Administrative Agent, the Borrower, the Lenders, the Issuing
Bank, the Swingline Lender and the other parties hereto, and their respective
successors and assigns. Delivery of an executed counterpart of this Credit
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart of this Credit Agreement.
Section 10.7 SEVERABILITY
In the event any one or more of the provisions contained in
this Credit Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
Section 10.8 RIGHT OF SETOFF
If an Event of Default shall have occurred and be continuing,
each of the Lenders and their respective Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable law,
to setoff and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by it to or for the credit or the account of the Borrower against any of and all
the obligations of the Borrower now or hereafter existing under this Credit
Agreement held by it, irrespective of whether or not it shall have made any
demand under this Credit Agreement and although such obligations may be
unmatured. The rights of each the Lenders and their respective Affiliates under
this Section are in addition to other rights and remedies (including other
rights of setoff) that it may have.
Section 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS
(a) THIS CREDIT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Credit Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that, to the extent permitted by
applicable law, all claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent permitted by
applicable law, in such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Credit Agreement shall affect any right that
the Administrative Agent or any other Credit Party may otherwise have to bring
any action or
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proceeding relating to this Credit Agreement or the other Loan Documents against
the Borrower, or any of its property, in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Credit Agreement or the other Loan Documents
in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Credit Agreement irrevocably consents to service
of process in the manner provided for notices in Section 10.1. Nothing in this
Credit Agreement will affect the right of any party to this Credit Agreement to
serve process in any other manner permitted by law.
Section 10.10 WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS CREDIT AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.11 HEADINGS
Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Credit
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Credit Agreement.
Section 10.12 INTEREST RATE LIMITATION
Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to any Loan, together with all fees, charges
and other amounts that are treated as interest on such Loan under applicable law
(collectively the "CHARGES"), shall exceed the maximum lawful rate (the "MAXIMUM
RATE") that may be contracted for, charged, taken, received or reserved by the
Lender holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all of the charges
payable in respect thereof, shall be limited to the maximum rate and, to the
extent lawful, the interest and the charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated, and the interest and the
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charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the maximum rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Rate to the date of
repayment, shall have been received by such Lender.
Section 10.13 TREATMENT OF CERTAIN INFORMATION
Each Credit Party agrees to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature, all information supplied by the
Borrower or any Subsidiary pursuant to this Credit Agreement that (a) is clearly
identified by such Person as being confidential at the time the same is
delivered to such Credit Party, or (b) constitutes any financial statement,
financial projections or forecasts, budget, compliance certificate, audit
report, management letter or accountants' certification delivered hereunder
("INFORMATION"), PROVIDED, however, that nothing herein shall limit the
disclosure of any such Information (i) to such of their respective Related
Parties as need to know such Information, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, or
requested by any bank regulatory authority, (iii) on a confidential basis, to
prospective lenders or their counsel, (iv) to auditors or accountants, and any
analogous counterpart thereof, (v) to any other Credit Party, (vi) in connection
with any litigation to which any one or more of the Credit Parties is a party,
(vii) to the extent such Information (A) is or becomes publicly available other
than as a result of a breach of this Credit Agreement, (B) is or becomes
available to any of the Credit Parties on a non-confidential basis from a source
other than the Borrower or any Subsidiary, or (C) was, is or becomes available
to the Credit Parties on a non-confidential basis prior to its disclosure to any
of them by the Borrower or any Subsidiary; and (viii) to the extent the Borrower
shall have consented to such disclosure in writing.
Section 10.14 SAVINGS CLAUSE
This Credit Agreement is intended solely as an amendment of,
and contemporaneous restatement of, the terms and conditions of the Existing
Credit Agreement. Notwithstanding anything herein to the contrary, it is the
intention of the parties hereto that this Credit Agreement and the commitments
and extensions of credit provided hereunder represent an amendment to, but not a
novation or discharge of, the credit facilities provided by the Existing Credit
Agreement. Nothing in this Credit Agreement is intended to affect the right of
any Credit Party (including any "Credit Party" under and as defined in the
Existing Credit Agreement) to payment of any amount due under the Existing
Credit Agreement for the period prior to the Restatement Date, and such right
shall be determined under the provisions of the Existing Credit Agreement. The
Borrower further acknowledges and agrees that any choses in action or other
rights created in favor of any Credit Party (including any "Credit Party" under
and as defined in the Existing Credit Agreement) or any of its successors or
assigns arising out of the representations and warranties of the Borrower
contained in or delivered in connection with the Existing Credit Agreement
(including the representations and warranties contained in Sections 4.1 and 4.11
thereof and any other representations and warranties delivered in connection
with the making of extensions of credit), shall survive the execution and
delivery of this Credit Agreement.
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Section 10.15 RESTATEMENT DATE AFFIRMATIONS AND RELEASE
(a) As of the Restatement Date, each of the Loan Parties hereby (i)
reaffirms and admits the validity, enforceability and continuation of all the
Loan Documents to which it is a party and its obligations thereunder, (ii)
agrees that the Guarantee Agreement and the Security Documents to which it is a
party and all obligations guaranteed or secured thereby or thereunder extend to
and include all obligations under this Credit Agreement as it may be amended,
supplemented, increased or otherwise modified from time to time and (iii) agrees
and admits that it has no valid defenses to or offsets against any of its
obligations under the Loan Documents to which it is a party.
(b) Each of the Loan Parties hereby releases each Credit Party from all
actions, causes of action, suits, damages, claims and demands whatsoever, in law
or equity, which such Loan Party ever had, now has or hereafter can, shall or
may have against such Credit Party or any Related Party of such Credit Party
for, upon or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the Restatement Date in respect of or in any way
related to the Loan Documents or the transactions contemplated thereby, or any
act, omission or event occurring in connection therewith.
Section 10.16 AMENDMENT NO. 1 TO SECURITY AGREEMENT
Each Lender signing below consents to Amendment No. 1 to the
Security Agreement.
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PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
PENTON MEDIA, INC.
By: /s/ Joseph G. NeCastro
--------------------------------------
Name: Joseph G. NeCastro
------------------------------------
Title: Chief Financial Officer
-----------------------------------
CONSENTED AND AGREED TO:
DONOHUE MEEHAN PUBLISHING COMPANY
INTERNET WORLD MEDIA, INC.
ONE, INC.
BOARDWATCH, INCORPORATED
PENTON INTERNET, INC.
STARDUST.COM
STREAMING MEDIA, INC.
DUKE INVESTMENTS, INC.
DUKE COMMUNICATIONS INTERNATIONAL, INC.
PTS DELAWARE, INC.
TECH CONFERENCES, INCORPORATED
HEALTHWELL.COM, INC.
AS TO EACH OF THE FOREGOING:
By: /s/ Joseph G. Necastro
-----------------------------------------
Name: Joseph G. NeCastro
---------------------------------------
Title: CFO/Treasurer
--------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
THE BANK OF NEW YORK, individually and as
Administrative Agent
By: /s/ Kristen E. Talaber
--------------------------------------
Name: Kristen E. Talaber
------------------------------------
Title: Vice President
-----------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
BANK OF AMERICA, N.A., individually and as
Syndication Agent
By: /s/ Therese Fontaine
---------------------------------------
Name: Therese Fontaine
-------------------------------------
Title: Managing Director
------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
BANK ONE, NA, individually and as a
Co-Documentation Agent
By: /s/ Richard Babcock
--------------------------------------------
Name: Richard Babcock
------------------------------------------
Title: First Vice President
-----------------------------------------
FLEET NATIONAL BANK, individually and as a
Co-Documentation Agent
By: /s/ Michael F. O'Neill
--------------------------------------------
Name: Michael F. O'Neill
------------------------------------------
Title: Senior Vice President
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
ALLFIRST BANK
By: /s/ Linda J. Weinberg
--------------------------------------------
Name: Linda J. Weinberg
------------------------------------------
Title: Senior Vice President
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
BANK OF MONTREAL
By: /s/ Michael J. Solski
--------------------------------------------
Name: Michael J. Solski
------------------------------------------
Title: Director
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
CREDIT AGRICOLE INDOSUEZ
By: /s/ John McCloskey
--------------------------------------------
Name: John McCloskey
------------------------------------------
Title: First Vice President
-----------------------------------------
By: Rene LeBlanc
--------------------------------------------
Name: Rene LeBlanc
------------------------------------------
Title: Vice President
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ John A. Ramelli
--------------------------------------------
Name: John A. Ramelli
------------------------------------------
Title: Vice President
-----------------------------------------
By: /s/ Joanna M. Solowski
--------------------------------------------
Name: Joanna M. Solowski
------------------------------------------
Title: Vice President
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
THE HUNTINGTON NATIONAL BANK
By: /s/ Thomas A. Krumel
--------------------------------------------
Name: Thomas A. Krumel
------------------------------------------
Title: Vice President
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
NATIONAL BANK OF CANADA
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
NATIONAL CITY BANK
By: /s/ Wade S. Alliance
--------------------------------------------
Name: Wade S. Alliance
------------------------------------------
Title: Vice President
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
BNP PARIBAS
By: /s/ Ben Todres
--------------------------------------------
Name: Ben Todres
------------------------------------------
Title: Director Media & Telecom Finance
-----------------------------------------
By: /s/ Ola Anderssen
--------------------------------------------
Name: Ola Anderssen
------------------------------------------
Title: Director
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Matthew E. Murphey
--------------------------------------------
Name: Matthew E. Murphey
------------------------------------------
Title: Vice President
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRUST BANK
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
VAN KAMPEN SENIOR INCOME TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ Darvin D. Pierce
--------------------------------------------
Name: Darvin D. Pierce
------------------------------------------
Title: Executive Director
-----------------------------------------
VAN KAMPEN SENIOR FLOATING RATE FUND
By: Van Kampen Investment Advisory Corp.
By: /s/ Darvin D. Pierce
--------------------------------------------
Name: Darvin D. Pierce
------------------------------------------
Title: Executive Director
-----------------------------------------
VAN KAMPEN PRIME RATE INCOME TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ Darvin D. Pierce
--------------------------------------------
Name: Darvin D. Pierce
------------------------------------------
Title: Executive Director
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
VAN KAMPEN CLO I, LIMITED
By: Van Kampen Investment Advisory Corp.,
as Collateral Manager
By: /s/ Darvin D. Pierce
--------------------------------------------
Name: Darvin D. Pierce
------------------------------------------
Title: Executive Director
-----------------------------------------
VAN KAMPEN CLO II, LIMITED
By: Van Kampen Investment Advisory Corp.,
as Collateral Manager
By: /s/ Darvin D. Pierce
--------------------------------------------
Name: Darvin D. Pierce
------------------------------------------
Title: Executive Director
-----------------------------------------
PENTON MEDIA, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
KEY CORPORATE CAPITAL INC.
By: /s/ Marvin S. Kodich
--------------------------------------------
Name: Marvin S. Kodich
------------------------------------------
Title: Senior Vice President
-----------------------------------------
PENTON MEDIA, INC. EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
---------------------------------
Reference is made to the Amended and Restated Credit Agreement, dated as
of March 8, 2002, among Penton Media, Inc., a Delaware corporation (the
"BORROWER"), the Lenders party thereto, Bank of America, N.A., as Syndication
Agent, Bank One, NA and Fleet National Bank, as Co-Documentation Agents, and The
Bank of New York, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT").
Terms defined in the Credit Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without recourse, to
the Assignee named below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date (as defined
below), the interests set forth below (the "ASSIGNED INTEREST") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth below in the Revolving Commitment of the
Assignor on the Assignment Date and the Revolving Loans, A Term Loans and B Term
Loans owing to the Assignor that are outstanding on the Assignment Date,
together with, in the case of such Revolving Loans, all of the related
participations held by the Assignor in respect of the Letters of Credit
(including its LC Exposure) and Swingline Loans (including its Swingline
Exposure), but excluding accrued interest and fees to and excluding the
Assignment Date. The Assignee hereby acknowledges receipt of a copy of the
Credit Agreement. From and after the Assignment Date, (a) the Assignee shall be
a party to and be bound by the provisions of the Credit Agreement and, to the
extent of the Assigned Interest, have the rights and obligations of a Lender
under the Loan Documents and (b) the Assignor shall, to the extent of the
Assigned Interest, relinquish its rights and be released from its obligations
under the Loan Documents.
This Assignment and Acceptance is being delivered to the Administrative
Agent, together with (a) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 3.7(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (b) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [ASSIGNEE/ASSIGNOR](1)(/) shall pay the fee payable to the
Administrative Agent pursuant to Section 10.4(b) of the Credit Agreement.
THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
- -------------------------------------
(1) Delete inapplicable term.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of
Assignment (the "ASSIGNMENT DATE"):
Revolving Commitment Assigned:
Principal Amount of Revolving Loans Assigned:
Principal Amount of A Term Loans Assigned:
Principal Amount of B Term Loans Assigned:
The terms set forth above are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
[NAME OF ASSIGNEE], as Assignee
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
[The undersigned hereby consents to the within assignment:
PENTON MEDIA, INC.
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
THE BANK OF NEW YORK, as
Administrative Agent[, as Issuing Bank and
as Swingline Lender]
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------](2)(/)
- -----------------------------
(2) Consents to be included to the extent required by Section 10.4(b) of the
Credit Agreement.
-2-
PENTON MEDIA, INC. EXHIBIT C-1
FORM OF NOTE
------------
March 8, 2002
New York, New York
FOR VALUE RECEIVED, the undersigned, PENTON MEDIA, INC., a Delaware
corporation (the "BORROWER"), hereby promises to pay to the order of
(the "LENDER") the unpaid principal amount of the Loans made by the Lender to
the Borrower, in the amounts and at the times set forth in the Amended and
Restated Credit Agreement, dated as of March 8, 2002, among the Borrower, the
Lenders party thereto, Bank of America, N.A., as Syndication Agent, Bank One, NA
and Fleet National Bank, as Co-Documentation Agents, and The Bank of New York,
as Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), and to pay interest from
the date hereof on the principal balance of such Loans from time to time
outstanding at the rate or rates and at the times set forth in the Credit
Agreement, in each case at the office of the Administrative Agent located at One
Wall Street, New York, New York, or at such other place as the Administrative
Agent may specify from time to time, in lawful money of the United States in
immediately available funds. Terms defined in the Credit Agreement are used
herein with the same meanings.
The Loans evidenced by this Note are prepayable in the amounts, and
under the circumstances, and their respective maturities are subject to
acceleration upon the terms, set forth in the Credit Agreement. This Note is
subject to, and should be construed in accordance with, the provisions of the
Credit Agreement and is entitled to the benefits and security set forth in the
Loan Documents.
The Lender is hereby authorized to record on the schedule annexed
hereto, and any continuation sheets that the Lender may attach hereto, (a) the
date of each Loan made by the Lender to the Borrower, (b) the class, Type and
amount thereof, (c) the interest rate (without regard to the Applicable Margin)
and Interest Period applicable to each Eurodollar Loan and (d) the date and
amount of each conversion of, and each payment or prepayment of the principal
of, any such Loan. The entries made in such schedule shall be prima facie
evidence of the existence and amounts of the obligations recorded therein,
PROVIDED that the failure to so record or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Loans in accordance
with the terms of the Credit Agreement.
Except as specifically otherwise provided in the Credit Agreement, the
Borrower hereby waives presentment, demand, notice of dishonor, protest, notice
of protest and all other demands, protests and notices in connection with the
execution, delivery, performance, collection and enforcement of this Note.
Whenever in this Note either party hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party. The
Borrower shall not have the right to assign its rights or obligations hereunder
or any interest herein (and any such attempted assignment shall be void) except
as expressly permitted by the Loan Documents. No failure or delay of the Lender
in exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. Neither this Note nor any provision hereof may be waived,
amended or modified, nor shall any departure therefrom be consented to, except
pursuant to a written agreement entered into between the Borrower and the Lender
with respect to which such waiver, amendment, modification or consent is to
apply, subject to any consent required in accordance with Section 10.2 of the
Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
All communications and notices hereunder shall be in writing and given
as provided in Section 10.1 of the Credit Agreement.
The Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Note or the other Loan Documents, or for recognition or
enforcement of any judgment, and the Borrower hereby irrevocably and
unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by applicable law, in such
Federal court. The Borrower agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Note shall affect any right that the Lender may otherwise have to bring any
action or proceeding relating to this Note or the other Loan Documents against
the Borrower, or any of its property, in the courts of any jurisdiction.
The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Note or the other Loan Documents in any court
referred to in the preceding paragraph hereof. The Borrower hereby irrevocably
waives, to the fullest extent permitted by applicable law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
2
The Borrower irrevocably consents to service of process in the manner
provided for notices herein. Nothing herein will affect the right of the
Borrower to serve process in any other manner permitted by law.
THE BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS NOTE. THE BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF THE LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT SUCH LENDER HAS BEEN INDUCED TO ACCEPT THIS NOTE AND ENTER
INTO THE LOAN DOCUMENTS TO WHICH IT IS A PARTY BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
PENTON MEDIA, INC.
By:
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
3
SCHEDULE TO THE NOTE
--------------------
Amount of
principal Interest Period for
Class and Type of converted, paid Interest rate on Eurodollar Loans Notation made by
Date Loan Amount of Loan or prepaid Eurodollar Loans
- ---------- ----------------- -------------- --------------- -------------------- -------------------- ----------------
PENTON MEDIA, INC. EXHIBIT C-2
FORM OF SWINGLINE NOTE
----------------------
March 8, 2002
New York, New York
FOR VALUE RECEIVED, the undersigned, PENTON MEDIA, INC., a Delaware
corporation (the "BORROWER"), hereby promises to pay to the order of THE BANK OF
NEW YORK (the "SWINGLINE LENDER") the unpaid principal amount of the Swingline
Loans made by the Swingline Lender to the Borrower, in the amounts and at the
times set forth in the Amended and Restated Credit Agreement, dated as of March
8, 2002, among the Borrower, the Lenders party thereto, Bank of America, N.A.,
as Syndication Agent, Bank One, NA and Fleet National Bank, as Co-Documentation
Agents, and The Bank of New York, as Administrative Agent (as the same may be
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), and to pay interest from the date hereof on the principal balance
of such Swingline Loans from time to time outstanding at the rate or rates and
at the times set forth in the Credit Agreement, in each case at the office of
the Administrative Agent located at One Wall Street, New York, New York, or at
such other place as the Administrative Agent may specify from time to time, in
lawful money of the United States in immediately available funds. Terms defined
in the Credit Agreement are used herein with the same meanings.
The Swingline Loans evidenced by the Swingline Note are repayable in the
amounts, and their respective maturities are subject to acceleration upon the
terms, set forth in the Credit Agreement. The Swingline Note is subject to, and
should be construed in accordance with, the provisions of the Credit Agreement
and is entitled to the benefits and security set forth in the Loan Documents.
The Swingline Lender is hereby authorized to record on the schedule
annexed hereto, and any continuation sheets that the Swingline Lender may attach
hereto, (a) the date of each Loan made by the Swingline Lender to the Borrower,
(b) the amount thereof, (c) the maturity date applicable to each Swingline Loan
and (d) the date and amount of each payment or prepayment of the principal of,
any such Swingline Loan. The entries made in such schedule shall be prima facie
evidence of the existence and amounts of the obligations recorded therein,
PROVIDED that the failure to so record or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Swingline Loans in
accordance with the terms of the Credit Agreement.
Except as specifically otherwise provided in the Credit Agreement, the
Borrower hereby waives presentment, demand, notice of dishonor, protest, notice
of protest and all other
demands, protests and notices in connection with the execution, delivery,
performance, collection and enforcement of the Swingline Note.
Whenever in the Swingline Note either party hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party.
The Borrower shall not have the right to assign its rights or obligations
hereunder or any interest herein (and any such attempted assignment shall be
void) except as expressly permitted by the Loan Documents. No failure or delay
of the Swingline Lender in exercising any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any
other right or power. Neither the Swingline Note nor any provision hereof may be
waived, amended or modified, nor shall any departure therefrom be consented to,
except pursuant to a written agreement entered into between the Borrower and the
Swingline Lender with respect to which such waiver, amendment, modification or
consent is to apply, subject to any consent required in accordance with Section
10.2 of the Credit Agreement.
THE SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
All communications and notices hereunder shall be in writing and given
as provided in Section 10.1 of the Credit Agreement.
The Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to the Swingline Note or the other Loan Documents, or for
recognition or enforcement of any judgment, and the Borrower hereby irrevocably
and unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by applicable law, in such
Federal court. The Borrower agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in the
Swingline Note shall affect any right that the Swingline Lender may otherwise
have to bring any action or proceeding relating to the Swingline Note or the
other Loan Documents against the Borrower, or any of its property, in the courts
of any jurisdiction.
The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to the Swingline Note or the other Loan Documents in
any court referred to in the preceding paragraph hereof. The
2
Borrower hereby irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
The Borrower irrevocably consents to service of process in the manner
provided for notices herein. Nothing herein will affect the right of the
Borrower to serve process in any other manner permitted by law.
THE BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THE SWINGLINE NOTE. THE BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE SWINGLINE LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT SUCH LENDER HAS BEEN INDUCED TO ACCEPT THE
SWINGLINE NOTE AND ENTER INTO THE LOAN DOCUMENTS TO WHICH IT IS A PARTY BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
PENTON MEDIA, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
3
SCHEDULE TO THE SWINGLINE NOTE
------------------------------
Amount of
Amount of principal Maturity date of Notation made
Date Swingline Loan paid or prepaid SwingLine Loans by
- -------------- -------------- ---------------- --------------- -------------
EXHIBIT D
FORM OF SUPPLEMENTAL SECURITY AGREEMENT
AMONG
PENTON MEDIA, INC.,
EACH OF THE OTHER GRANTORS PARTY HERETO
AND
THE BANK OF NEW YORK, AS ADMINISTRATIVE AGENT
-------------------------
DATED AS OF MARCH 8, 2002
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1. DEFINITIONS; GRANT OF SECURITY .................................1
Section 1.1 GENERAL DEFINITIONS ........................................1
Section 1.2 OTHER DEFINITIONS; INTERPRETATION ..........................3
Section 1.3 Grant of Security ..........................................3
ARTICLE 2. SECURITY FOR OBLIGATIONS; NO ASSUMPTION OF LIABILITY ..........4
Section 2.1 SECURITY FOR OBLIGATIONS ...................................4
Section 2.2 NO ASSUMPTION OF LIABILITY .................................4
ARTICLE 3. REPRESENTATIONS AND WARRANTIES AND COVENANTS ...................4
Section 3.1 GENERALLY ..................................................4
Section 3.2 INVESTMENT RELATED PROPERTY ................................8
ARTICLE 4. FURTHER ASSURANCES ............................................10
ARTICLE 5. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT .............11
ARTICLE 6. REMEDIES UPON DEFAULT .........................................12
Section 6.1 REMEDIES GENERALLY ........................................12
Section 6.2 APPLICATION OF PROCEEDS OF SALE ...........................14
Section 6.3 INVESTMENT RELATED PROPERTY ...............................15
Section 6.4 REGISTRATION, ETC. ........................................15
ARTICLE 7. REIMBURSEMENT OF ADMINISTRATIVE AGENT .........................16
ARTICLE 8. WAIVERS; AMENDMENT ............................................17
ARTICLE 9. SECURITY INTEREST ABSOLUTE ....................................17
ARTICLE 10. TERMINATION; RELEASE .........................................18
ARTICLE 11. ADDITIONAL GRANTORS ..........................................18
ARTICLE 12. NOTICES ......................................................18
ARTICLE 13. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS ...............18
ARTICLE 14. SURVIVAL OF AGREEMENT; SEVERABILITY ..........................19
ARTICLE 15. GOVERNING LAW ................................................19
ARTICLE 16. COUNTERPARTS .................................................19
ARTICLE 17. HEADINGS .....................................................20
ARTICLE 18. JURISDICTION; VENUE; CONSENT TO SERVICE OF PROCESS ...........20
ARTICLE 19. WAIVER OF JURY TRIAL .........................................20
SCHEDULES:
- ----------
============================================================================
Schedule I List of Subsidiaries and Addresses for Notices
- ----------------------------------------------------------------------------
Schedule 3.1(a)(i) List of Chief Executive Offices, Jurisdictions of
Organization and Federal Employer Identification
Numbers
- ----------------------------------------------------------------------------
Schedule 3.1(a)(ii) List of Legal and Other Names
- ----------------------------------------------------------------------------
Schedule 3.1(a)(v) List of Filing Offices
- ----------------------------------------------------------------------------
Schedule 3.4 List of Investment Related Property
- ----------------------------------------------------------------------------
EXHIBITS:
- ---------
============================================================================
Exhibit A Form of Supplement
- ----------------------------------------------------------------------------
Exhibit B Form of Deposit Account Control Agreement
- ----------------------------------------------------------------------------
Exhibit C Form of Securities Account Control Agreement
- ----------------------------------------------------------------------------
(ii)
SUPPLEMENTAL SECURITY AGREEMENT, dated as of March 8, 2002, among PENTON
MEDIA, INC., a Delaware corporation (the "BORROWER"), each of the subsidiaries
of the Borrower listed on Schedule I (each such subsidiary, individually, a
"SUBSIDIARY GUARANTOR" and, collectively, the "SUBSIDIARY GUARANTORS"; the
Subsidiary Guarantors and the Borrower are referred to collectively herein as
the "GRANTORS"), and THE BANK OF NEW YORK, as administrative agent under the
Credit Agreement referred to in the next paragraph.
Reference is made to the Amended and Restated Credit Agreement, dated as
of March 8, 2002, among Penton Media, Inc., a Delaware corporation (the
"BORROWER"), the Lenders party thereto, Bank of America, N.A., as Syndication
Agent, Bank One, NA and Fleet National Bank, as Co-Documentation Agents, and The
Bank of New York, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is also made to the Security Agreement, dated as of September
1, 1999, among the Borrower, the Subsidiary Guarantors party thereto and the
Administrative Agent (as amended, supplemented or otherwise modified from time
to time, the "EXISTING SECURITY AGREEMENT").
The Lenders have made, and have agreed to make, Loans to, and the
Issuing Bank has issued, and has agreed to issue, Letters of Credit for the
account of, the Borrower pursuant to, and upon the terms and subject to the
conditions specified in, the Credit Agreement. Each of the Subsidiary Guarantors
has agreed to guarantee, among other things, all the obligations of each Loan
Party under the Loan Documents. The obligations of the Lenders to make Loans and
the Issuing Bank to issue Letters of Credit are conditioned upon, among other
things, the execution and delivery by the Grantors of an agreement in the form
hereof to secure the Obligations.
Accordingly, the Grantors and the Administrative Agent, on behalf of
itself and each Secured Party (and each of their respective successors or
assigns), hereby agree as follows:
ARTICLE 1. DEFINITIONS; GRANT OF SECURITY
Section 1.1 GENERAL DEFINITIONS
As used in this Supplemental Security Agreement, the following
terms shall have the meanings specified below:
"ADDITIONAL GRANTOR" has the meaning assigned to such term in
Article 11.
"APPLICABLE DATE" means (i) in the case of any Grantor (other
than an Additional Grantor), the date hereof, and (ii) in the case of any
Additional Grantor, the date of the Supplement executed and delivered by such
Additional Grantor.
"BORROWER" has the meaning assigned to such term in the
preliminary statement of this Supplemental Security Agreement.
"COLLATERAL" has the meaning assigned to such term in Section
1.3(a).
"COLLATERAL RECORDS" means all books, instruments,
certificates, Records, ledger cards, files, correspondence, customer lists,
blueprints, technical specifications, manuals and other documents, and all
computer software, computer printouts, tapes, disks and related data processing
software and similar items, in each case that at any time represent, cover or
otherwise evidence, or contain information relating to, any of the Collateral or
are otherwise necessary or helpful in the collection thereof or realization
thereupon.
"COLLATERAL SUPPORT" means all property (real or personal)
assigned, hypothecated or otherwise securing any of the Collateral, and shall
include any security agreement or other agreement granting a lien or security
interest in such real or personal property.
"CONTROL AGREEMENTS" means each Deposit Account Control
Agreement and Securities Account Control Agreement.
"CREDIT AGREEMENT" has the meaning assigned to such term in
the preliminary statement of this Supplemental Security Agreement.
"DEPOSIT ACCOUNT CONTROL AGREEMENT" means a Deposit Account
Control Agreement, substantially in the form of Exhibit B, or such other form
reasonably acceptable to the Administrative Agent pursuant to which the
Administrative Agent shall have "control" (within the meaning of Article 9 of
the UCC) over such applicable Deposit Account.
"DEPOSIT ACCOUNTS" means all "deposit accounts" as defined in
Article 9 of the UCC, including all such accounts described in Schedule 3.2
hereto or to the applicable Supplement.
"GRANTOR" and "GRANTORS" have the meanings assigned to such
terms in the preliminary statement of this Supplemental Security Agreement.
"INVESTMENT RELATED PROPERTY" means all cash, "money" as
defined in Article 1 of the UCC, "securities" as defined in Article 8 of the
UCC, Permitted Investments, certificates of deposit, Deposit Accounts,
Securities Accounts and "securities entitlements" as defined in Article 8 of the
UCC, in each case, regardless of whether characterized as "investment property"
under the UCC.
"OBLIGATIONS" has the meaning assigned to such term in the
Existing Security Agreement.
"PROCEEDS" means (i) all "proceeds" as defined in Article 9 of
the UCC, (ii) payments or distributions made with respect to any Investment
Related Property, (iii) any payment received from any insurer or other Person or
entity as a result of the destruction, loss, theft, damage or other involuntary
conversion of whatever nature of any asset or property that constitutes the
Collateral, and (iv) whatever is receivable or received when any of the
Collateral or proceeds are sold, exchanged, collected or otherwise disposed of,
whether such disposition is voluntary or involuntary.
- 2 -
"RECORD" means a "record" as defined in Article 9 of the UCC.
"SECURED PARTIES" has the meaning assigned to such term in the
Existing Security Agreement.
"SECURITIES ACCOUNT CONTROL AGREEMENT" means a Securities
Account Control Agreement, substantially in the form of Exhibit C, or such other
form reasonably acceptable to the Administrative Agent pursuant to which the
Administrative Agent shall have "control" (within the meaning of Article 9 of
the UCC) over such applicable Securities Account.
"SECURITIES ACCOUNTS" means all "securities accounts" as
defined in Article 8 of the UCC, including all such accounts described in
Schedule 3.2 hereto or to the applicable Supplement.
"SECURITY INTEREST" has the meaning assigned to such term in
Section 1.3(a).
"SUPPLEMENT" means a supplement hereto, substantially in the
form of Exhibit A.
"SUPPORTING OBLIGATION" means (i) all "supporting obligations"
as defined in Article 9 of the UCC and (ii) all Guarantees and other secondary
obligations supporting any of the Collateral, in each case regardless of whether
characterized as a "supporting obligation" under the UCC.
"UCC" means the Uniform Commercial Code as in effect from time
to time in the State of New York or, when the context implies, the Uniform
Commercial Code as in effect from time to time in any other applicable
jurisdiction.
Section 1.2 OTHER DEFINITIONS; INTERPRETATION
(a) OTHER DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein, and the term "subsidiary" shall have the meanings
assigned to such terms in the Credit Agreement.
(b) RULES OF INTERPRETATION. The rules of interpretation
specified in Sections 1.2, 1.3 and 1.4 of the Credit Agreement shall be
applicable to this Supplemental Security Agreement. All references herein to
provisions of the UCC shall include all successor provisions under any
subsequent version or amendment to any Article of the UCC.
Section 1.3 GRANT OF SECURITY
(a) GRANT OF SECURITY INTEREST: As security for the payment or
performance, as applicable, in full of the Obligations, each Grantor hereby
bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to the Administrative Agent (and its successors and assigns), for
the ratable benefit of the Secured Parties, and hereby grants to the
Administrative Agent (and its successors and assigns), for the ratable benefit
of the Secured Parties, a security interest (the "SECURITY INTEREST") in all of
such Grantor's right, title and interest in, to and under the following, in each
case whether now owned or existing or hereafter acquired or arising and wherever
located (all of which
- 3 -
being hereinafter collectively referred to as the "COLLATERAL"): (i) all
Investment Related Property, (ii) to the extent not otherwise included in clause
(i) of this Section, all Collateral Records, Collateral Support and Supporting
Obligations in respect of any of the foregoing, (iii) to the extent not
otherwise included in clauses (i) and (ii) of this Section, the account referred
to in Section 3.2(c)(ii) and all funds and other property from time to time in,
or credited to, such account or any Deposit Account or Securities Account, and
(iv) to the extent not otherwise included in clauses (i) through (iii) of this
Section, all Proceeds, products, substitutions, accessions, rents and profits of
or in respect of any of the foregoing.
(b) REVISIONS TO UCC. For the avoidance of doubt, it is
expressly understood and agreed that, to the extent the UCC is revised after the
date hereof such that the definition of any of the foregoing terms included in
the description or definition of the Collateral is changed, the parties hereto
desire that any property which is included in such changed definitions, but
which would not otherwise be included in the Security Interest on the date
hereof, nevertheless be included in the Security Interest upon the effective
date of such revision. Notwithstanding the immediately preceding sentence, the
Security Interest is intended to apply immediately on the Applicable Date to all
of the Collateral to the fullest extent permitted by applicable law, regardless
of whether any particular item of the Collateral was then subject to the UCC.
ARTICLE 2. SECURITY FOR OBLIGATIONS; NO ASSUMPTION OF LIABILITY
Section 2.1 SECURITY FOR OBLIGATIONS
This Supplemental Security Agreement secures, and the Collateral
is collateral security for, the prompt and complete payment or performance in
full when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of amounts that would
become due but for the operation of the automatic stay under Section 262(a) of
Title 11 of the United States Code, or any similar provision of any other
bankruptcy, insolvency, receivership or other similar law), of all Obligations
with respect to each Grantor.
Section 2.2 NO ASSUMPTION OF LIABILITY
Notwithstanding anything to the contrary herein, the Security
Interest is granted as security only and shall not subject the Administrative
Agent or any other Secured Party to, or in any way alter or modify, any
obligation or liability of any Grantor with respect to or arising out of the
Collateral.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES AND COVENANTS
Section 3.1 GENERALLY
(a) REPRESENTATIONS AND WARRANTIES. Each of the Grantors,
jointly with the other Grantors and severally, represents and warrants to the
Administrative Agent and the other Secured Parties that:
- 4 -
(i) As of the Applicable Date, (A) such Grantor's chief
executive office or its principal place of business is, and for the preceding
four months has been, located at the office indicated on Schedule 3.1(a)(i)
hereto or to the applicable Supplement, (B) such Grantor's jurisdiction of
organization is the jurisdiction indicated on Schedule 3.1(a)(i) hereto or to
the applicable Supplement, and (C) such Grantor's Federal Employer
Identification Number is as set forth on Schedule 3.1(a)(i) hereto or to the
applicable Supplement.
(ii) As of the Applicable Date, (A) such Grantor's full legal
name is as set forth on Schedule 3.1(a)(ii) hereto or to the applicable
Supplement and (B) such Grantor has not done in the preceding five years, and
does not do, business under any other name (including any trade-name or
fictitious business name), except for those names set forth on Schedule
3.1(a)(ii) hereto or to the applicable Supplement.
(iii) Such Grantor has not within the five years preceding the
Applicable Date become bound (whether as a result of merger or otherwise) as
debtor under a security agreement entered into by another Person (other than the
Existing Security Agreement), which has not theretofore been terminated.
(iv) Such Grantor has good and valid rights in, and title to,
the Collateral with respect to which it has purported to grant the Security
Interest, except for Liens expressly permitted pursuant to the Loan Documents.
(v) All actions and consents, including all filings, notices,
registrations and recordings, necessary or desirable to create, perfect or
ensure the first priority (subject only to Liens expressly permitted by the Loan
Documents) of the Security Interest in the Collateral owned or held by it or on
its behalf or for the exercise by the Administrative Agent or any other Secured
Party of any voting or other rights provided for in this Supplemental Security
Agreement or the exercise of any remedies in respect of any such Collateral have
been made or obtained, (A) except for the filing of UCC financing statements
naming such Grantor as "debtor" and the Administrative Agent as "secured party",
or the making of other appropriate filings, registrations or recordings,
containing a description of such Collateral in each applicable governmental,
municipal or other office specified on Schedule 3.1(a)(v) hereto or to the
applicable Supplement, (B) except for any such Collateral as to which the
representations and warranties in this Section 3.1(a)(v) would not be true
solely by virtue of such Collateral having been used or disposed of in a manner
expressly permitted hereunder or under any other Loan Document, and (C) except
to the extent that such Security Interest may not be perfected by filing,
registering, recording or taking any other action in the United States.
(vi) All Collateral owned or held by it or on its behalf is
owned or held by it or on its behalf free and clear of any Lien, except for
Permitted Encumbrances and other Liens expressly permitted by the Loan
Documents. It has not filed or consented to the filing of (A) any financing
statement or analogous document under the UCC or any other applicable laws
covering any such Collateral or (B) any assignment in which it assigns any such
Collateral or any security agreement or similar instrument covering any such
Collateral with any foreign
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governmental, municipal or other office, in each case, which financing
statement, analogous document, assignment or other instrument, as
applicable, is still in effect, except for Liens expressly permitted by
the Loan Documents and Liens under, and filings made pursuant to, the
Existing Security Agreement.
(vii) The Security Interest in the Collateral owned or
held by it or on its behalf (A) is effective to vest in the
Administrative Agent, on behalf of the Secured Parties, the rights of
the Administrative Agent in such Collateral as set forth herein and (B)
does not violate Regulation T, U or X as of the Applicable Date.
(b) COVENANTS AND AGREEMENTS. Each Grantor hereby covenants and
agrees as follows:
(i) It will promptly notify the Administrative Agent in
writing of any change (A) in its legal name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (B) in the location of its chief executive office, principal
place of business, any office in which it maintains books or records
relating to any of the Collateral owned or held by it or on its behalf
or, except to the extent permitted by Section 3.1(b)(vii) or Section
3.2, any office or facility at which any such Collateral is located
(including the establishment of any such new office or facility), (C) in
its identity or legal or organizational structure or its jurisdiction of
formation, or (D) in its Federal Taxpayer Identification Number. It
agrees not to effect or permit any change referred to in the preceding
sentence unless all filings have been made under the UCC or otherwise
that are required in order for the Administrative Agent to continue at
all times following such change to have a valid, legal and perfected
security interest in all the Collateral with the priority required
hereby.
(ii) It shall maintain, at its own cost and expense,
such complete and accurate Records with respect to the Collateral owned
or held by it or on its behalf as is consistent with its current
practices and in accordance with such prudent and standard practices
used in industries that are the same as or similar to those in which it
is engaged, but in any event to include complete accounting Records
indicating all payments and proceeds received with respect to any part
of such Collateral, and, at such time or times as the Administrative
Agent may reasonably request, promptly to prepare and deliver to the
Administrative Agent a duly certified schedule or schedules in form and
detail satisfactory to the Administrative Agent showing the identity and
amount of any and all such Collateral.
(iii) It shall, at its own cost and expense, take any
and all actions necessary to defend title to the Collateral owned or
held by it or on its behalf against all Persons and to defend the
Security Interest in such Collateral and the priority thereof against
any Lien or other interest not expressly permitted by the Loan
Documents, and in furtherance thereof, it shall not take, or permit to
be taken, any action not otherwise expressly permitted by the Loan
Documents that could impair the Security Interest or the priority
thereof or any Secured Party's rights in or to such Collateral.
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(iv) The Administrative Agent and such Persons as the
Administrative Agent may designate shall have the right, at the cost and expense
of such Grantor, to inspect all of its Records (and to make extracts and copies
from such Records), to discuss its affairs with its officers and independent
accountants and to verify under reasonable procedures the validity, amount,
quality, quantity, value, condition and status of, or any other matter relating
to, the Collateral owned or held by or on behalf of such Grantor, including, in
the case of Collateral in the possession of any third person, by contacting
contract parties or other obligors thereon or any third person possessing such
Collateral for the purpose of making such a verification. The Administrative
Agent shall have the absolute right to share on a confidential basis any
information it gains from such inspection or verification with any Secured
Party.
(v) At its option, the Administrative Agent may discharge past
due taxes, assessments, charges, fees, Liens, security interests or other
encumbrances at any time levied or placed on the Collateral owned or held by or
on behalf of such Grantor, and not permitted by the Loan Documents, and may pay
for the maintenance and preservation of such Collateral to the extent such
Grantor fails to do so as required by the Loan Documents, and such Grantor
agrees, jointly with the other Grantors and severally, to reimburse the
Administrative Agent on demand for any payment made or any expense incurred by
the Administrative Agent pursuant to the foregoing authorization; PROVIDED,
however, that nothing in this paragraph shall be interpreted as excusing any
Grantor from the performance of, or imposing any obligation on the
Administrative Agent or any other Secured Party to cure or perform, any
covenants or other promises of any Grantor with respect to taxes, assessments,
charges, fees, Liens, security interests or other encumbrances and maintenance
as set forth herein or in the other Loan Documents.
(vi) It shall remain liable to observe and perform all the
conditions and obligations to be observed and performed by it under each
contract, agreement or instrument relating to the Collateral owned or held by it
or on its behalf, all in accordance with the terms and conditions thereof, and
it agrees, jointly with the other Grantors and severally, to indemnify and hold
harmless the Administrative Agent and the other Secured Parties from and against
any and all liability for such performance.
(vii) It shall not make, or permit to be made, an assignment,
pledge or hypothecation of the Collateral owned or held by it or on its behalf,
or grant any other Lien in respect of such Collateral, except as expressly
permitted by the Loan Documents. Except for Liens expressly permitted by the
Loan Documents, it shall not make or permit to be made any transfer of such
Collateral, and it shall remain at all times in possession of such Collateral,
except that unless and until the Administrative Agent shall notify it that an
Event of Default shall have occurred and be continuing and that, during the
continuance thereof, it shall not sell, convey, lease, assign, transfer or
otherwise dispose of any such Collateral (which notice may be given by telephone
if promptly confirmed in writing), it may use and dispose of such Collateral in
any lawful manner not inconsistent with the provisions of this Supplemental
Security Agreement or any other Loan Document.
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Section 3.2 INVESTMENT RELATED PROPERTY
(a) REPRESENTATIONS AND WARRANTIES. Each of the Grantors,
jointly with the other Grantors and severally, represents and warrants to the
Administrative Agent and the other Secured Parties that Schedule 3.2 hereto or
to the applicable Supplement sets forth, as of the Applicable Date, all of the
Deposit Accounts and Securities Accounts included in the Collateral owned or
held by or on behalf of such Grantor.
(b) REGISTRATION IN NOMINEE NAME; DENOMINATIONS. Each Grantor
hereby agrees that (i) without limiting Article 5, the Administrative Agent, on
behalf of the Secured Parties, shall have the right (in its sole and absolute
discretion) to hold any Investment Related Property in its own name as pledgee,
the name of its nominee (as pledgee or as sub-agent) or the name of the
applicable Grantor, endorsed or assigned, where applicable, in blank or in favor
of the Administrative Agent, (ii) at the Administrative Agent's request, such
Grantor will promptly give to the Administrative Agent copies of any material
notices or other communications received by it with respect to any Investment
Related Property registered in its name, and (iii) the Administrative Agent
shall at all times have the right to exchange any certificates, instruments or
other documents representing or evidencing any Investment Related Property owned
or held by or on behalf of such Grantor for certificates, instruments or other
documents of smaller or larger denominations for any purpose consistent with
this Supplemental Security Agreement.
(c) VOTING AND DISTRIBUTIONS.
(i) Unless and until an Event of Default shall have
occurred and be continuing:
(A) Each Grantor shall be entitled to
exercise any and all voting and/or other consensual rights and powers
inuring to an owner of the Investment Related Property, or any part
thereof, for any purpose consistent with the terms of this Supplemental
Security Agreement and the other Loan Documents; PROVIDED, HOWEVER, that
such Grantor will not be entitled to exercise any such right if the
result thereof could materially and adversely affect the rights inuring
to a holder of the Investment Related Property or the rights and
remedies of any of the Secured Parties under this Supplemental Security
Agreement or any other Loan Document or the ability of any of the
Secured Parties to exercise the same.
(B) The Administrative Agent shall execute
and deliver to each Grantor, or cause to be executed and delivered to
each Grantor, all such proxies, powers of attorney and other instruments
as such Grantor may reasonably request for the purpose of enabling it to
exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subsection (c)(i)(A) and to receive the cash
payments it is entitled to receive pursuant to subsection (c)(i)(C).
(C) Each Grantor shall be entitled to
receive, retain and use any and all cash dividends, interest and
principal paid on the Investment Related Property owned or held by it or
on its behalf to the extent and only to the extent that such cash
dividends, interest and
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principal are not prohibited by, and otherwise paid in accordance with, the
terms and conditions of the Credit Agreement, the other Loan Documents and
applicable laws. All non-cash dividends, interest and principal, and all
dividends, interest and principal paid or payable in cash or otherwise in
connection with a partial or total liquidation or dissolution, return of
capital, capital surplus or paid-in surplus, and all other distributions (other
than distributions referred to in the preceding sentence) made on or in respect
of the Investment Related Property, whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or reclassification
of the outstanding securities of any issuer of any Investment Related Property
or received in exchange for any Investment Related Property, or any part
thereof, or in redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a party or
otherwise, shall be and become part of the Collateral, and, if received by such
Grantor, shall not be commingled with any of its other funds or property but
shall be held separate and apart therefrom, shall be held in trust for the
benefit of the Administrative Agent hereunder and shall be forthwith delivered
to the Administrative Agent in the same form as so received (with any necessary
endorsement).
(ii) Without limiting the generality of the foregoing, upon the
occurrence and during the continuance of an Event of Default:
(A) All rights of each Grantor to dividends,
interest or principal that it is authorized to receive pursuant to subsection
(c)(i)(C) shall cease, and all such rights shall thereupon become vested in the
Administrative Agent, which shall have the sole and exclusive right and
authority to receive and retain such dividends, interest or principal, as
applicable. All dividends, interest and principal received by or on behalf of
any Grantor contrary to the provisions of this Section shall be held in trust
for the benefit of the Administrative Agent, shall be segregated from other
property or funds of such Grantor and shall be forthwith delivered to the
Administrative Agent upon demand in the same form as so received (with any
necessary endorsement). Any and all money and other property paid over to or
received by the Administrative Agent pursuant to the provisions of this
subsection (c)(ii)(A) shall be retained by the Administrative Agent in an
account to be established in the name of the Administrative Agent, for the
ratable benefit of the Secured Parties, upon receipt of such money or other
property and shall be applied in accordance with the provisions of Section 6.2.
Subject to the provisions of this subsection (c)(ii)(A), such account shall at
all times be under the sole dominion and control of the Administrative Agent,
and the Administrative Agent shall at all times have the sole right to make
withdrawals therefrom and to exercise all rights with respect to the funds and
other property from time to time therein or credited thereto as set forth in the
Loan Documents. After all Events of Default have been cured or waived, the
Administrative Agent shall, within five Business Days after all such Events of
Default have been cured or waived, repay to the applicable Grantor all cash
dividends, interest and principal (without interest) that such Grantor would
otherwise be permitted to retain pursuant to the terms of subsection (c)(i)(C)
and which remain in such account.
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(B) All rights of each Grantor to exercise
the voting and consensual rights and powers it is entitled to exercise
pursuant to subsection (c)(i)(A), and the obligations of the
Administrative Agent under subsection (c)(i)(B), shall cease, and all
such rights shall thereupon become vested in the Administrative Agent,
which shall have the sole and exclusive right and authority to exercise
such voting and consensual rights and powers, PROVIDED that, unless
otherwise directed by the Required Lenders, the Administrative Agent
shall have the right from time to time following and during the
continuance of an Event of Default to permit such Grantor to exercise
such rights. After all Events of Default have been cured or waived, the
applicable Grantor will have the right to exercise the voting and
consensual rights and powers that it would otherwise be entitled to
exercise pursuant to the terms of subsection (c)(i)(A).
(d) CASH AND INVESTMENT PROPERTY. Each Grantor covenants and
agrees that (i) with respect to each of its Deposit Accounts existing on the
date hereof and set forth in Schedule 3.2 hereto, it shall deliver, or cause to
be delivered, to the Administrative Agent, by no later than April 15, 2002, a
duly executed Deposit Account Control Agreement with respect to each such
Deposit Account (other than a Deposit Account that at all times has less than
(A) $25,000 on deposit therein, and (B) when aggregated with all other Deposit
Accounts that are not subject to a Deposit Account Control Agreement in favor of
the Administrative Agent, $100,000 on deposit therein), (ii) it shall not at any
time establish or maintain any other Deposit Account without first delivering to
the Administrative Agent a duly executed Deposit Account Control Agreement with
respect to such Deposit Account, (iii) with respect to each of its Securities
Accounts existing on the date hereof and set forth in Schedule 3.2 hereto, it
shall deliver, or cause to be delivered, to the Administrative Agent, by no
later than April 15, 2002, a duly executed Securities Account Control Agreement
with respect to each such Securities Account, (iv) it shall not at any time
establish or maintain any other Securities Account without first delivering to
the Administrative Agent a duly executed Securities Account Control Agreement
with respect to such Securities Account, and (v) it shall deposit, or cause to
be deposited, no less frequently than every other Business Day all of its
Investment Related Property (other than Deposit Accounts and Securities
Accounts) into one or more such Deposit Accounts or Securities Accounts. Prior
to the delivery of a "Notice of Exclusive Control" under the applicable Control
Agreement, and pursuant to the terms thereof and the other Loan Documents, each
Deposit Account and/or Securities Account shall at all times be under the
"control" (within the meaning of Article 9 of the UCC) of the Administrative
Agent or an agent of the Administrative Agent, and no Grantor shall have access
to or any right to draw upon or withdraw any cash or other funds therefrom,
except for purposes not otherwise prohibited by the Loan Documents.
ARTICLE 4. FURTHER ASSURANCES
Each Grantor hereby covenants and agrees, at its own cost and
expense, to execute, acknowledge, deliver and/or cause to be duly filed all such
further agreements, instruments and other documents (including favorable legal
opinions in connection with any Transaction), and take all such further actions,
that the Administrative Agent may from time to time reasonably request to
preserve, protect and perfect (including as a result of any revisions to Article
9 of the UCC in any jurisdiction or the effectiveness thereof or any other
change in applicable law) the Security Interest granted by it and
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the rights and remedies created hereby, including the payment of any fees and
taxes required in connection with its execution and delivery of this
Supplemental Security Agreement, the granting by it of the Security Interest and
the filing of any financing statements or other documents in connection herewith
or therewith. In addition, to the extent permitted by applicable law, each
Grantor hereby irrevocably authorizes the Administrative Agent to file one or
more financing or continuation statements, and amendments thereto, relative to
all or any part of the Collateral owned or held by it or on its behalf without
the signature of such Grantor and agrees that a photographic or other
reproduction of this Supplemental Security Agreement or of a financing statement
signed by such Grantor shall be sufficient as a financing statement and may be
filed as a financing statement in any and all jurisdictions. Each Grantor hereby
further irrevocably authorizes the Administrative Agent to file a Record or
Records, including financing statements, in all jurisdictions and with all
filing offices that the Administrative Agent may determine, in its sole and
absolute discretion, are necessary, advisable or prudent to perfect the Security
Interest granted by it and agrees that such financing statements may describe
the Collateral owned or held by it or on its behalf in the same manner as
described herein or may contain an indication or description of collateral that
describes such Collateral in any other manner that the Administrative Agent may
determine, in its sole and absolute discretion, is necessary, advisable or
prudent to perfect the Security Interest granted by such Grantor, including
describing such property as "all assets" or "all personal property."
ARTICLE 5. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT
Each Grantor hereby appoints the Administrative Agent as its
true and lawful agent and attorney-in-fact for the purpose of carrying out the
provisions of this Supplemental Security Agreement and taking any action and
executing any instrument that the Administrative Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest, and without limiting the generality of the
foregoing, the Administrative Agent shall have the right, with power of
substitution for such Grantor and in such Grantor's name or otherwise, for the
use and benefit of the Administrative Agent and the other Secured Parties, upon
the occurrence and during the continuance of an Event of Default and at such
other time or times permitted by the Loan Documents, (i) to receive, endorse,
assign and/or deliver any and all notes, acceptances, checks, drafts, money
orders or other evidences of payment relating to the Collateral owned or held by
it or on its behalf or any part thereof; (ii) to demand, collect, receive
payment of, give receipt for, and give discharges and releases of, any of such
Collateral; (iii) to commence and prosecute any and all suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect or otherwise realize on any of the Collateral owned or held by it or on
its behalf or to enforce any rights in respect of any of such Collateral; (iv)
to settle, compromise, compound, adjust or defend any actions, suits or
proceedings relating to any of such Collateral; (v) to notify, or to require
such Grantor to notify, obligors to make payment directly to the Administrative
Agent, and (vi) to use, sell, assign, transfer, pledge, make any agreement with
respect to or otherwise deal with any of such Collateral, and to do all other
acts and things necessary to carry out the purposes of this Supplemental
Security Agreement, as fully and completely as though the Administrative Agent
were the absolute owner of such Collateral for all purposes; PROVIDED, however,
that nothing herein contained shall be construed as requiring or obligating the
Administrative Agent or any other Secured Party to make any commitment or to
make any inquiry as to the nature or sufficiency
- 11 -
of any payment received by the Administrative Agent or any other Secured Party,
or to present or file any claim or notice, or to take any action with respect to
any of the Collateral or the moneys due or to become due in respect thereof or
any property covered thereby, and no action taken or omitted to be taken by the
Administrative Agent or any other Secured Party with respect to any of the
Collateral shall give rise to any defense, counterclaim or offset in favor of
such Grantor or to any claim or action against the Administrative Agent or any
other Secured Party. The provisions of this Article shall in no event relieve
any Grantor of any of its obligations hereunder or under the other Loan
Documents with respect to any of the Collateral or impose any obligation on the
Administrative Agent or any other Secured Party to proceed in any particular
manner with respect to any of the Collateral, or in any way limit the exercise
by the Administrative Agent or any other Secured Party of any other or further
right that it may have on the date of this Supplemental Security Agreement or
hereafter, whether hereunder, under any other Loan Document, by law or
otherwise. Any sale pursuant to the provisions of this paragraph shall be deemed
to conform to the commercially reasonable standards as provided in Section
9-610(b) of the UCC as in effect in the State of New York or its equivalent in
other jurisdictions (or any successor provision).
ARTICLE 6. REMEDIES UPON DEFAULT
Section 6.1 REMEDIES GENERALLY
(a) GENERAL RIGHTS. Upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees to deliver each item of
Collateral owned or held by it or on its behalf to the Administrative Agent on
demand, and it is agreed that the Administrative Agent shall have the right,
with or without legal process and with or without prior notice or demand for
performance, to take possession of the Collateral owned or held by it or on its
behalf and without liability for trespass to enter any premises where such
Collateral may be located for the purpose of taking possession of or removing
such Collateral and, generally, to exercise any and all rights afforded to a
secured party under the UCC or other applicable law. Without limiting the
generality of the foregoing, each Grantor agrees that the Administrative Agent
shall have the right, subject to the mandatory requirements of applicable law,
to sell or otherwise dispose of any of the Collateral owned or held by or on
behalf of such Grantor, at public or private sale or at any broker's board or on
any securities exchange, for cash, upon credit or for future delivery as the
Administrative Agent shall deem appropriate. The Administrative Agent shall be
irrevocably authorized at any such sale of such Collateral constituting
securities (if it deems it advisable to do so) to restrict the prospective
bidders or purchasers to Persons who will represent and agree that they are
purchasing such Collateral for their own account for investment and not with a
view to the distribution or sale thereof, and upon consummation of any such
sale, the Administrative Agent shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely, free from
any claim or right on the part of the applicable Grantor, and such Grantor
hereby waives (to the extent permitted by law) all rights of redemption, stay,
valuation and appraisal which such Grantor now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
(b) SALE OF COLLATERAL. The Administrative Agent shall give each
Grantor ten days' written notice (which such Grantor agrees is reasonable notice
within the meaning of Sections 9-611
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and 9-612 of the UCC as in effect in the State of New York or its equivalent in
other jurisdictions (or any successor provisions)), of the Administrative
Agent's intention to make any sale of any of the Collateral owned or held by or
on behalf of such Grantor. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a broker's
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which such Collateral will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Administrative Agent may fix and state in the notice (if any) of such
sale. At any such sale, the Collateral to be sold may be sold in one lot as an
entirety or in separate parcels, as the Administrative Agent may (in its sole
and absolute discretion) determine. The Administrative Agent shall not be
obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Administrative Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of any of the Collateral is made on credit or for
future delivery, the Collateral so sold may be retained by the Administrative
Agent until the sale price is paid by the purchaser or purchasers thereof, but
the Administrative Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by applicable law, private)
sale made pursuant to this Section, any Secured Party may bid for or purchase,
free (to the extent permitted by applicable law) from any right of redemption,
stay, valuation or appraisal on the part of such Grantor (all said rights being
also hereby waived and released to the extent permitted by law), any of the
Collateral offered for sale and may make payment on account thereof by using any
claim then due and payable to such Secured Party from such Grantor as a credit
against the purchase price, and such Secured Party may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further
accountability to such Grantor therefor. For purposes hereof, (i) a written
agreement to purchase any of the Collateral shall be treated as a sale thereof,
(ii) the Administrative Agent shall be free to carry out such sale pursuant to
such agreement, and (iii) no Grantor shall be entitled to the return of any of
the Collateral subject thereto, notwithstanding the fact that after the
Administrative Agent shall have entered into such an agreement all Events of
Default shall have been remedied and the Obligations paid in full. As an
alternative to exercising the power of sale herein conferred upon it, the
Administrative Agent may proceed by a suit or suits at law or in equity to
foreclose upon any of the Collateral and to sell any of the Collateral pursuant
to a judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the
provisions of this Article shall be deemed to conform to the commercially
reasonable standards as provided in Section 9-610(b) of the UCC as in effect in
the State of New York or its equivalent in other jurisdictions (or any successor
provisions). Without limiting the generality of the foregoing, each Grantor
agrees as follows: (A) if the proceeds of any sale of the Collateral owned or
held by it or on its behalf pursuant to this Article are insufficient to pay all
the Obligations, it shall be liable for the resulting deficiency and the fees,
charges and disbursements of any counsel employed by the Administrative Agent or
any other Secured Party to collect such deficiency, (B) it hereby waives any
claims against the Administrative Agent arising by reason of the fact that the
price at which any such Collateral may have been sold at any private sale
pursuant to this Article was
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less than the price that might have been obtained at a public sale, even if the
Administrative Agent accepts the first offer received and does not offer such
Collateral to more than one offeree, (C) there is no adequate remedy at law for
failure by it to comply with the provisions of this Section and that such
failure would not be adequately compensible in damages, and therefore agrees
that its agreements in this Section may be specifically enforced, (D) the
Administrative Agent may sell any such Collateral without giving any warranties
as to such Collateral, and the Administrative Agent may specifically disclaim
any warranties of title or the like, and (E) the Administrative Agent shall have
no obligation to marshall any such Collateral.
Section 6.2 APPLICATION OF PROCEEDS OF SALE
The Administrative Agent shall apply the proceeds of any
collection or sale of the Collateral, as well as any Collateral consisting of
cash (except as otherwise provided in Section 6.11 of the Credit Agreement,
Section 3.7(b)(v)), as follows:
FIRST, to the payment of all reasonable costs and
expenses incurred by the Administrative Agent (in its capacity as such
hereunder or under any other Loan Document) in connection with such
collection or sale or otherwise in connection with this Supplemental
Security Agreement, any other Loan Document or any of the Obligations,
including all out-of-pocket court costs and the reasonable fees and
expenses of its agents and legal counsel, the repayment of all advances
made by the Administrative Agent hereunder or under any other Loan
Document on behalf of any Grantor and any other reasonable out-of-pocket
costs or expenses incurred in connection with the exercise of any right
or remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the
amounts so applied to be distributed among the Secured Parties pro rata
in accordance with the amounts of the Obligations owed to them on the
date of any such distribution); and
THIRD, to the applicable Grantor, its successors or
assigns, or as a court of competent jurisdiction may otherwise direct.
The Administrative Agent shall have sole and absolute discretion as to the time
of application of any such proceeds, moneys or balances in accordance with this
Supplemental Security Agreement. Upon any sale of the Collateral by the
Administrative Agent (including pursuant to a power of sale granted by statute
or under a judicial proceeding), the receipt of the purchase money by the
Administrative Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Administrative Agent or such officer
or be answerable in any way for the misapplication thereof.
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Section 6.3 INVESTMENT RELATED PROPERTY
In view of the position of each Grantor in relation to the
Investment Related Property, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "FEDERAL SECURITIES LAWS") with respect to any
disposition of the Investment Related Property permitted hereunder. Each Grantor
understands that compliance with the Federal securities laws might very strictly
limit the course of conduct of the Administrative Agent if the Administrative
Agent were to attempt to dispose of all or any part of the Investment Related
Property, and might also limit the extent to which or the manner in which any
subsequent transferee of any Investment Related Property could dispose of the
same. Similarly, there may be other legal restrictions or limitations affecting
the Administrative Agent in any attempt to dispose of all or part of the
Investment Related Property under applicable Blue Sky or other state securities
laws or similar laws analogous in purpose or effect. Each Grantor recognizes
that in light of such restrictions and limitations the Administrative Agent may,
with respect to any sale of the Investment Related Property, limit the
purchasers to those who will agree, among other things, to acquire such
Investment Related Property for their own account, for investment, and not with
a view to the distribution or resale thereof. Each Grantor acknowledges and
agrees that in light of such restrictions and limitations, the Administrative
Agent, in its sole and absolute discretion, (i) may proceed to make such a sale
whether or not a registration statement for the purpose of registering such
Investment Related Property, or any part thereof, shall have been filed under
the Federal securities laws and (ii) may approach and negotiate with a single
potential purchaser to effect such sale. Each Grantor acknowledges and agrees
that any such sale might result in prices and other terms less favorable to the
seller than if such sale were a public sale without such restrictions. In the
event of any such sale, the Administrative Agent shall incur no responsibility
or liability for selling all or any part of the Investment Related Property at a
price that the Administrative Agent, in its sole and absolute discretion, may in
good faith deem reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been realized if the
sale were deferred until after registration as aforesaid or if more than a
single purchaser were approached. The provisions of this Section will apply
notwithstanding the existence of a public or private market upon which the
quotations or sales prices may exceed substantially the price at which the
Administrative Agent sells any such Investment Related Property.
Section 6.4 REGISTRATION, ETC.
Each Grantor agrees that, upon the occurrence and during the
continuance of an Event of Default, if for any reason the Administrative Agent
desires to sell any of the Investment Related Property owned or held by or on
behalf of such Grantor at a public sale, it will, at any time and from time to
time, upon the written request of the Administrative Agent, use its best efforts
to take or to cause, where applicable, the issuer of such Investment Related
Property to take such action and prepare, distribute and/or file such documents,
as are required or advisable in the reasonable opinion of counsel for the
Administrative Agent to permit the public sale of such Investment Related
Property. Each Grantor further agrees to indemnify, defend and hold harmless the
Administrative Agent, each
- 15 -
other Secured Party, any underwriter and their respective officers, directors,
affiliates and controlling Persons from and against all loss, liability,
expenses, costs of counsel (including reasonable fees and expenses of legal
counsel), and claims (including the costs of investigation) that they may incur,
insofar as such loss, liability, expense or claim, as applicable, relates to
such Grantor or any of its property, and arises out of or is based upon any
alleged untrue statement of a material fact contained in any prospectus (or any
amendment or supplement thereto) or in any notification or offering circular, or
arises out of or is based upon any alleged omission to state a material fact
required to be stated therein or necessary to make the statements in any thereof
not misleading, except insofar as the same may have been caused by any untrue
statement or omission based upon information furnished in writing to such
Grantor or the issuer of such Investment Related Property, as applicable, by the
Administrative Agent or any other Secured Party expressly for use therein. Each
Grantor further agrees, upon such written request referred to above, to use its
best efforts to qualify, file or register, or cause, where applicable, the
issuer of such Investment Related Property to qualify, file or register, any of
the Investment Related Property owned or held by or on behalf of such Grantor
under the Blue Sky or other securities laws of such states as may be requested
by the Administrative Agent and keep effective, or cause to be kept effective,
all such qualifications, filings or registrations. Each Grantor will bear all
costs and expenses of carrying out its obligations under this Section. Each
Grantor acknowledges that there is no adequate remedy at law for failure by it
to comply with the provisions of this Section and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section may be specifically enforced.
ARTICLE 7. REIMBURSEMENT OF ADMINISTRATIVE AGENT
Each Grantor agrees, jointly with the other Grantors and
severally, to pay to the Administrative Agent the amount of any and all
reasonable out-of-pocket expenses, including the fees, other charges and
disbursements of counsel and of any experts or agents, that the Administrative
Agent may incur in connection with (i) the administration of this Supplemental
Security Agreement relating to such Grantor or any of its property, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral owned or held by or on behalf of such
Grantor, (iii) the exercise, enforcement or protection of any of the rights of
the Administrative Agent hereunder relating to such Grantor or any of its
property, or (iv) the failure by such Grantor to perform or observe any of the
provisions hereof. Without limitation of its indemnification obligations under
the other Loan Documents, each of the Grantors agrees, jointly with the other
Grantors and severally, to indemnify the Administrative Agent and the other
Indemnitees against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related out-of-pocket expenses, including
reasonable counsel fees, other charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (a) the execution or delivery by such Grantor of this Supplemental
Security Agreement or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, or the performance by such Grantor of its
obligations under the Loan Documents and the other transactions contemplated
thereby or (b) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether or not any Indemnitee is a party thereto, PROVIDED
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and
- 16 -
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. Any amounts payable as provided hereunder shall
be additional Obligations secured hereby and by the other Security Documents.
The provisions of this Section shall remain operative and in full force and
effect regardless of the termination of this Supplemental Security Agreement or
any other Loan Document, the consummation of the transactions contemplated
hereby or thereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Supplemental Security
Agreement or any other Loan Document or any investigation made by or on behalf
of the Administrative Agent or any other Secured Party. All amounts due under
this Section shall be payable within ten days of written demand therefor and
shall bear interest at the rate specified in Section 3.1 of the Credit
Agreement.
ARTICLE 8. WAIVERS; AMENDMENT
No failure or delay of the Administrative Agent in exercising any power
or right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the other Secured Parties hereunder
and under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of
this Supplemental Security Agreement or any other Loan Document or consent to
any departure by any Grantor therefrom shall in any event be effective unless
the same shall be permitted by this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Grantor in any case shall entitle such Grantor
to any other or further notice or demand in similar or other circumstances.
Neither this Supplemental Security Agreement nor any provision hereof may be
waived, amended, supplemented or otherwise modified, or any departure therefrom
consented to, except pursuant to an agreement or agreements in writing entered
into by, between or among the Administrative Agent and the Grantor or Grantors
with respect to which such waiver, amendment, other modification or consent is
to apply, subject to any consent required in accordance with Section 10.2 of the
Credit Agreement.
ARTICLE 9. SECURITY INTEREST ABSOLUTE
All rights of the Administrative Agent hereunder, the Security
Interest and all obligations of each Grantor hereunder shall be absolute and
unconditional irrespective of (i) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document, any agreement with respect to any of
the Obligations, or any other agreement or instrument relating to any of the
foregoing, (ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other waiver, amendment,
supplement or other modification of, or any consent to any departure from, the
Credit Agreement, any other Loan Document or any other agreement or instrument
relating to any of the foregoing, (iii) any exchange, release or non-perfection
of any Lien on any other collateral, or any release or waiver, amendment,
supplement or other modification of, or consent under, or departure from, any
guaranty, securing or guaranteeing all or any of the Obligations, or (iv) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, any Grantor in respect of the Obligations or in respect of this
Supplemental Security Agreement or any other Loan Document.
- 17 -
ARTICLE 10. TERMINATION; RELEASE
This Supplemental Security Agreement and the Security Interest
shall terminate when all the Obligations have been finally and indefeasibly paid
in full in cash, the Credit Parties have no further commitment to lend or
otherwise extend credit under the Credit Agreement. Upon (i) any sale, transfer
or other disposition permitted by the Loan Documents (other than any sale,
transfer or other disposition of any Collateral that would, immediately after
giving effect thereto, continue to be Collateral but for the release of the
security interest therein pursuant to this clause) or (ii) the effectiveness of
any written consent to the release of the Security Interest in any Collateral
pursuant to Section 10.2 of the Credit Agreement, the Security Interest in such
Collateral shall be automatically released. In connection with any termination
or release pursuant to this Section, the Administrative Agent shall execute and
deliver to the applicable Grantor, at its own cost and expense, all UCC
termination statements and similar documents that such Grantor may reasonably
request to evidence such termination or release. Any execution and delivery of
documents pursuant to this Article shall be without recourse to or warranty by
the Administrative Agent or any other Secured Party.
ARTICLE 11. ADDITIONAL GRANTORS
Upon execution and delivery after the date hereof by the
Administrative Agent and a Subsidiary of a Supplement, such Subsidiary or
subsidiary, as applicable, shall become a Grantor hereunder with the same force
and effect as if originally named as a Grantor herein (each an "ADDITIONAL
GRANTOR"). The execution and delivery of any Supplement shall not require the
consent of any other Grantor hereunder. The rights and obligations of each
Grantor hereunder and each other Loan Party and other party (other than a Credit
Party) under the Loan Documents shall remain in full force and effect
notwithstanding the addition of any Additional Grantor as a party to this
Supplemental Security Agreement.
ARTICLE 12. NOTICES
All communications and notices hereunder shall be in writing and
given as provided in Section 10.1 of the Credit Agreement. All communications
and notices hereunder to the Administrative Agent or the Borrower shall be given
to it at its address for notices set forth in such Section, and all
communications and notices hereunder to any other Grantor shall be given to it
at its address for notices set forth on Schedule I hereto or to the applicable
Supplement, with, in the case of any Grantor other than the Borrower, a copy to
the Borrower.
ARTICLE 13. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS
Whenever in this Supplemental Security Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party, and all covenants, promises and agreements
by or on behalf of any Grantor that are contained in this Supplemental Security
Agreement shall bind and inure to the benefit of each party hereto and its
successors and assigns. This Supplemental Security Agreement shall become
effective as to any Grantor when a counterpart hereof executed on behalf of such
Grantor shall have been delivered to the
- 18 -
Administrative Agent and a counterpart hereof shall have been executed on behalf
of the Administrative Agent, and thereafter shall be binding upon such Grantor
and the Administrative Agent and their respective successors and assigns, and
shall inure to the benefit of such Grantor, the Administrative Agent and the
other Secured Parties, and their respective successors and assigns, except that
no Grantor shall have the right to assign its rights or obligations hereunder or
any interest herein or in any of the Collateral (and any such attempted
assignment shall be void), except as expressly contemplated by this Supplemental
Security Agreement or the other Loan Documents. This Supplemental Security
Agreement shall be construed as a separate agreement with respect to each of the
Grantors and may be amended, supplemented, waived or otherwise modified or
released with respect to any Grantor without the approval of any other Grantor
and without affecting the obligations of any other Grantor hereunder.
ARTICLE 14. SURVIVAL OF AGREEMENT; SEVERABILITY
All covenants, agreements, representations and warranties made
by the Grantors herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Supplemental Security Agreement
or any other Loan Document shall be considered to have been relied upon by the
Administrative Agent and the other Secured Parties and shall survive the
execution and delivery of any Loan Document and the making of any Loan,
regardless of any investigation made by the Secured Parties or on their behalf,
and shall continue in full force and effect until this Supplemental Security
Agreement shall terminate. In the event any one or more of the provisions
contained in this Supplemental Security Agreement or in any other Loan Document
should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
ARTICLE 15. GOVERNING LAW
THIS SUPPLEMENTAL SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
ARTICLE 16. COUNTERPARTS
This Supplemental Security Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one contract (subject to Article 13), and shall become effective as provided
in Article 13. Delivery of an executed counterpart of this Supplemental Security
Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Supplemental Security Agreement.
- 19 -
ARTICLE 17. HEADINGS
Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Supplemental Security
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Supplemental Security Agreement.
ARTICLE 18. JURISDICTION; VENUE; CONSENT TO SERVICE OF PROCESS
Each Grantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Supplemental Security Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that, to the extent
permitted by applicable law, all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
extent permitted by applicable law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Supplemental Security
Agreement shall affect any right that the Administrative Agent or any other
Secured Party may otherwise have to bring any action or proceeding relating to
this Supplemental Security Agreement or the other Loan Documents against such
Grantor or any of its property in the courts of any jurisdiction. Each Grantor
hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Supplemental Security Agreement or the other Loan Documents in
any foregoing court referred to in this Article. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Each party hereto irrevocably consents to service
of process in the manner provided for notices in Article 12. Nothing in this
Supplemental Security Agreement will affect the right of any party hereto to
serve process in any other manner permitted by law.
ARTICLE 19. WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS SUPPLEMENTAL SECURITY AGREEMENT. EACH PARTY HERETO (I) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS SUPPLEMENTAL
SECURITY AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS ARTICLE.
- 20 -
PENTON MEDIA, INC.
SUPPLEMENTAL SECURITY AGREEMENT
-------------------------------
IN WITNESS WHEREOF, the parties hereto have duly executed this
Supplemental Security Agreement as of the day and year first above written.
PENTON MEDIA, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE I HERETO
AS TO EACH OF THE FOREGOING
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
THE BANK OF NEW YORK, as
Administrative Agent
By:
-----------------------------
Name:
---------------------------
Title:
---------------------------
SCHEDULE I
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF SUBSIDIARIES AND ADDRESSES FOR NOTICES
----------------------------------------------
Subsidiaries
------------
I. Subsidiaries of the Borrower:
----------------------------
Addresses for Notices
---------------------
===============================================================================
Grantor Address
------- -------
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SCHEDULE 3.1(a)(i)
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF CHIEF EXECUTIVE OFFICES, JURISDICTIONS OF ORGANIZATION AND
FEDERAL EMPLOYER IDENTIFICATION NUMBERS
---------------------------------------
==================================================================================================================
Jurisdiction of Organization Federal Employer
Grantor Chief Executive Office ------------ Identification No.
------- ---------------------- ------------------
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==================================================================================================================
SCHEDULE 3.1(a)(ii)
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF LEGAL AND OTHER NAMES
-----------------------------
==================================================================================================================
Grantor Full Legal Name Trade or Fictitious Business Name Period of Use
- ------- --------------- --------------------------------- -------------
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==================================================================================================================
SCHEDULE 3.1(a)(v)
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF FILING OFFICES
----------------------
[PROVIDE INFORMATION FOR EACH GRANTOR]
SCHEDULE 3.2
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF INVESTMENT RELATED PROPERTY
-----------------------------------
Deposit Accounts
----------------
===============================================================================
Depository Institution
Grantor ----------- Account Number Account Name
- ------- -------------- ------------
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===============================================================================
Securities Accounts
-------------------
===============================================================================
Securities
Grantor Intermediary Account Number Account Name
- ------- ------------ -------------- ------------
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===============================================================================
EXHIBIT A
TO SUPPLEMENTAL SECURITY AGREEMENT
FORM OF SUPPLEMENT
------------------
SUPPLEMENT NO. __, dated as of , to the SUPPLEMENTAL SECURITY
AGREEMENT, dated as of March 8, 2002, among PENTON MEDIA, INC, a Delaware
corporation (the "BORROWER"), the subsidiaries of the Borrower party thereto,
and THE BANK OF NEW YORK, as administrative agent under the Credit Agreement
referred to in the next paragraph (as amended, supplemented or otherwise
modified from time to time, the "SUPPLEMENTAL SECURITY AGREEMENT").
Reference is made to the Amended and Restated Credit Agreement, dated as
of March 8, 2002, among the Borrower, the Lenders party thereto, Bank of
America, N.A., as Syndication Agent, Bank One, NA (formerly known as The First
National Bank of Chicago), as Documentation Agent, Fleet National Bank, as
Co-Syndication Agent, and The Bank of New York, as Administrative Agent (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"). Capitalized terms (and the term "subsidiary") used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement and the Supplemental Security Agreement.
The Grantors have entered into the Supplemental Security Agreement in
order to induce the Credit Parties to enter into the Credit Agreement. Article
11 of the Supplemental Security Agreement provides that additional Subsidiaries
may become Grantors under the Supplemental Security Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary (the "NEW GRANTOR") is executing this Supplement in accordance with
the requirements of the Credit Agreement to become a Grantor under the
Supplemental Security Agreement in order to induce the Lenders to make
additional Loans and as consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Grantor hereby agree
as follows:
Section 1. In accordance with Article 11 of the Supplemental Security
Agreement, the New Grantor by its signature below becomes a Grantor under the
Supplemental Security Agreement with the same force and effect as if originally
named therein as a Grantor, and the New Grantor hereby agrees to all the terms
and provisions of the Supplemental Security Agreement applicable to it as a
Grantor thereunder. In furtherance of the foregoing, the New Grantor, as
security for the payment and performance in full of the Obligations, does hereby
create and grant to the Administrative Agent (and its successors and assigns),
for the benefit of the Secured Parties (and their successors and assigns), a
security interest in and lien on all of the New Grantor's right, title and
interest in and to the Collateral (as defined in the Supplemental Security
Agreement) owned or held by or on behalf of the New Grantor. Each reference to a
"Grantor" in the Supplemental Security Agreement shall be deemed to include the
New Grantor. The Supplemental Security Agreement is hereby incorporated herein
by reference.
Section 2. The New Grantor represents and warrants to the
Administrative Agent and the other Secured Parties that (i) this Supplement has
been duly authorized, executed and delivered by it
and constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally, (ii) set forth on the Schedules attached hereto are true and complete
schedules of all of the information that would have been required to have been
delivered by or on behalf of the New Grantor pursuant to the Supplemental
Security Agreement and the Schedules thereto if the New Grantor had been
originally named in the Supplemental Security Agreement, and (iii) the
representations and warranties made by it as a Grantor under the Supplemental
Security Agreement are true and correct on and as of the date hereof based upon
the applicable information referred to in clause (ii) of this Section.
Section 3. This Supplement may be executed in counterparts (and by each
party hereto on a different counterpart), each of which shall constitute an
original, but both of which, when taken together, shall constitute but one
contract. This Supplement shall become effective when the Administrative Agent
shall have received counterparts of this Supplement that, when taken together,
bear the signatures of the New Grantor and the Administrative Agent. Delivery of
an executed counterpart of this Supplement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Supplement.
Section 4. Except as expressly supplemented hereby, the Supplemental
Security Agreement shall remain in full force and effect.
Section 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 6. In the event any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Supplemental Security Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
hereto shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
Section 7. All communications and notices hereunder shall be in writing
and given as provided in Article 12 of the Supplemental Security Agreement. All
communications and notices hereunder to the New Grantor shall be given to it at
the address set forth in the applicable Schedule hereto, with a copy to the
Borrower.
Section 8. The New Grantor agrees to reimburse the Administrative Agent
for its out-of-pocket expenses in connection with this Supplement, including the
fees, disbursements and other charges of counsel for the Administrative Agent.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 2 -
SUPPLEMENT NO.
--------------
TO THE SUPPLEMENTAL SECURITY AGREEMENT
--------------------------------------
IN WITNESS WHEREOF, the New Grantor and the Administrative Agent
have duly executed this Supplement No. __ to the Supplemental Security Agreement
as of the day and year first above written.
[NAME OF NEW GRANTOR]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
THE BANK OF NEW YORK, as
Administrative Agent
By:
---------------------------
Name:
-------------------------
Title:
------------------------
[ATTACH SCHEDULES CORRESPONDING TO THE
SCHEDULES TO THE SUPPLEMENTAL SECURITY AGREEMENT]
EXHIBIT B
TO SUPPLEMENTAL SECURITY AGREEMENT
FORM OF DEPOSIT ACCOUNT CONTROL AGREEMENT
-----------------------------------------
DEPOSIT ACCOUNT CONTROL AGREEMENT, dated as of (as
amended, supplemented or otherwise modified from time to time, this "DEPOSIT
ACCOUNT CONTROL AGREEMENT"), among (the "DEPOSITOR"), , in
its capacity (in such capacity, the "DEPOSITORY INSTITUTION") as a "bank" within
the meaning of Section 9-102 of Article 9 of the Uniform Commercial Code as in
effect from time to time (including any successor thereto) in the State of New
York, and THE BANK OF NEW YORK, as agent for the benefit of certain secured
parties (the "AGENT").
RECITALS
--------
A. Pursuant to the terms and conditions of one or more security
agreements (as the same may from time to time be amended, restated or otherwise
modified, the "SECURITY AGREEMENT"), the Depositor granted to certain secured
parties represented herein by the Agent a security interest in and lien upon,
among other things, all of the Depositor's right title and interest in and to
the Deposit Account (as defined below) and all funds and other property from
time to time held therein or credited thereto (collectively, the "COLLATERAL").
B. The Depositor, the Agent and the Depository Institution are entering
into this Deposit Account Control Agreement to perfect the above-mentioned
security interest in the Collateral.
Section 1. NOTICE AND ACKNOWLEDGMENT OF SECURITY INTEREST
The Depositor and the Agent hereby notify the Depository
Institution of, and the Depository Institution hereby acknowledges, the security
interest granted by the Depositor to the secured parties represented herein by
the Agent in all of the Depositor's right, title and interest in and to the
Collateral.
Section 2. ESTABLISHMENT OF DEPOSIT ACCOUNT
The Depository Institution hereby confirms and agrees that:
(a) The Depository Institution has established
account number in the name of (such account and any
successor account, the "DEPOSIT ACCOUNT"), and the Depository Institution shall
not close or change the name or account number of the Depository Account without
the prior written consent of the Agent.
(b) The Depositor irrevocably directs the Depository
Institution, and the Depository Institution agrees, to make all notations in the
Depository Institution's records pertaining to the Deposit Account that are
necessary or appropriate to reflect the security interest of the secured
parties represented herein by the Agent in the Collateral and to designate the
Deposit Account as "____________" Collateral Account for The Bank of New York,
as Agent".
(c) All cash and other funds delivered to the
Depository Institution pursuant to the Security Agreement will be promptly
credited to the Deposit Account.
(d) The Deposit Account is a "deposit account"
within the meaning of Section 9-102(a)(29) of the Uniform Commercial Code as in
effect from time to time (including any successor thereto) in the State of New
York.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITORY INSTITUTION
The Depository Institution hereby makes the following
representations, warranties and covenants:
(a) The Deposit Account has been established as
set forth in Section 2 above, and such Deposit Account will be maintained in the
manner set forth herein until termination of this Deposit Account Control
Agreement.
(b) This Deposit Account Control Agreement is the
valid and legally binding obligation of the Depository Institution.
(c) On the date of this Deposit Account Control
Agreement and, except as provided in Section 7 hereof, the Depository
Institution does not know of any claim to or interest in the Collateral or the
Deposit Account, other than the interests of the Depositor and the Agent (for
the benefit of certain secured parties), and has not identified in its records
any other person as a customer, secured party or similar designation with
respect to the Collateral or the Deposit Account.
Section 4. CONTROL OF THE DEPOSIT ACCOUNT
(a) Subject to the provisions of this Deposit
Account Control Agreement, the Deposit Account shall be under the "control"
(within the meaning of Article 9 of the Uniform Commercial Code as in effect
from time to time in the State of New York) of the Agent and the Agent shall
have the sole right to make or permit withdrawals from the Deposit Account and
to exercise all rights with respect thereto from time to time as set forth in
this Deposit Account Control Agreement.
(b) The Depositor irrevocably authorizes and
directs the Depository Institution, and the Depository Institution agrees, to
comply with any instructions given by the Agent and received by the Depository
Institution in writing from the Agent, without further notice to, or consent
from, the Depositor, at any time, by delivering a notice to the Depository
Institution in substantially the form set forth in Exhibit A hereto (a "NOTICE
OF EXCLUSIVE CONTROL").
(c) Prior to the date on which a Notice of
Exclusive Control is received by the Depository Institution from the Agent, the
Agent agrees that the Depository Institution may accept instructions with
respect to the Collateral originated by the Depositor.
2
(d) Upon receipt by the Depository Institution of a
Notice of Exclusive Control from the Agent:
(i) the Depositor directs the Depository
Institution, and the Depository Institution agrees, to take all instructions
with respect to the Collateral solely from or originated by the Agent; and
(ii) the Depository Institution shall cease
to accept any and all instructions with respect to the Collateral from the
Depositor or any other person (other than the Agent) and shall accept all such
instructions only from the Agent.
Section 5. MAINTENANCE OF DEPOSIT ACCOUNT
In addition to, and not in lieu of, the obligation of the
Depository Institution to honor instructions as agreed in Section 4 hereof, the
Depository Institution agrees to maintain the Deposit Account as follows:
(a) PERMITTED INVESTMENTS. Until such time as the
Depository Institution receives a Notice of Exclusive Control signed by the
Agent, the Depositor shall direct the Depository Institution with respect to the
selection of investments, if any, to be made for the Deposit Account.
(b) STATEMENTS AND CONFIRMATIONS. The Depository
Institution will promptly send copies of all statements, confirmations and other
correspondence concerning the Deposit Account and/or any funds credited thereto
simultaneously to each of the Depositor and the Agent at the address for each
set forth in Section 9 hereof.
(c) TAX REPORTING. All items of interest, if any,
recognized in the Deposit Account shall be reported to the Internal Revenue
Service and all state and local taxing authorities under the name and taxpayer
identification number of the Depositor.
Section 6. OTHER AGREEMENTS
(a) Except as otherwise provided in Section 7
hereof, the Depositor and the Depository Institution agree not to enter into any
agreement with any other person (except for the secured parties represented
herein by the Agent) relating to any of the Collateral pursuant to which such
person is identified in the records of the Depository Institution as a person
having a an interest or claim against the Depository Institution with respect to
any of the Collateral.
(b) Except as otherwise provided in Section 7
hereof, the Depository Institution will not advance any credit secured by any of
the Collateral, directly or indirectly, to the Depositor.
(c) All charges, fees and expenses of the
Depository Institution incurred in connection with the performance of its duties
hereunder and the maintenance and operation of the
3
Deposit Account shall be for the account of the Depositor and the Agent shall
not be responsible or liable therefor.
Section 7. SUBORDINATION OF LIEN; WAIVER OF SET-OFF
To the extent that the Depository Institution has or may have in
the future any security interest in or lien on any of the Collateral, the
Depository Institution subordinates such security interest and lien to the
security interest of the secured parties represented herein by the Agent, except
that the Depository Institution may retain its lien on the Collateral to secure
(a) advances made by the Depository Institution in connection with the advance
posting of any dividends, interest and other distributions, the crediting of any
checks that are subsequently returned unpaid because of uncollected or
insufficient funds and other advances made by the Depositor as part of its cash
management services, all in the ordinary course of business, and (b) normal fees
for the Deposit Account. Except as provided in the preceding sentence, the
Depository Institution waives any lien, security interest, right of set-off or
deduction or banker's lien which it may have in or on the Collateral.
Section 8. LIMITATION OF LIABILITY; INDEMNIFICATION
(a) The Depository Institution shall not be liable
for any loss or injury resulting from its actions or its performance or lack of
performance of its duties hereunder or for its decisions in the absence of gross
negligence or willful misconduct on its part. In no event shall the Depository
Institution be liable for (i) acting in accordance with instructions from the
Depositor or, after the delivery of a Notice of Exclusive Control, the Agent,
(ii) special, consequential or punitive damages, (iii) losses due to forces
beyond the control of the Depository Institution, including, without limitation,
strikes, work stoppages, acts of war or terrorism, insurrection, revolution,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware)
services, or (iv) the acts of omissions of its agents so long as the selection
of such agents was not grossly negligent or an act of willful misconduct.
(b) The Depositor hereby agrees to indemnify and
hold harmless the Depository Institution against any claims, liabilities,
expenses or losses in any way arising out of or related to this Deposit Account
Control Agreement (including reasonable attorneys' fees and disbursements),
except to the extent that the claims, liabilities, expenses or losses are caused
by the gross negligence or willful misconduct of the Depository Institution. The
provisions of this Section shall survive the termination of this Deposit Account
Control Agreement.
Section 9. NOTICES
Any notice, request or other communication required or permitted
to be given under this Deposit Account Control Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
facsimile or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the following address (any party may change its address in the manner
set forth in this Section):
4
(a) if to the Depositor, to it at _______________,
Attention of ______________ (Telephone No. (___)___ -____; Telecopy No.
(___)___ -____);
(b) if to the Depository Institution, to it at
_____________, Attention of:_____________ (Telephone No. (___)___ -____;
Facsimile No. (___)___ -____); and
(c) if to the Agent, to it at One Wall Street, New
York, New York 10286, Attention of: Renee Dudley, Agency Function Administration
(Telephone No. (212) 635-4975; Facsimile No. (212) 635-6365 or 6366 or 6367),
with a copy to The Bank of New York, at One Wall Street, New York, New York
10286, Attention of: Kristen Talaber (Telephone No. (212) 635-8692; Telecopy No.
(212) 635-8593).
Section 10. TERMINATION
This Deposit Account Control Agreement shall remain in effect
until the earlier of (a) receipt by the Depository Institution of written notice
from the Agent in substantially the form of the Exhibit hereto (a "NOTICE OF
TERMINATION") or (b) delivery by the Depository Institution of all of the
Collateral to the Agent by crediting such Collateral to an account in the name
of the Agent, or as otherwise agreed to in writing by the Agent and the
Depository Institution. The rights and powers granted to the Agent in this
Deposit Account Control Agreement are powers coupled with an interest and will
not be affected by the insolvency or bankruptcy of the Depositor nor by the
lapse of time.
Section 11. CHOICE OF LAW
This Deposit Account Control Agreement and the Deposit Account
shall be governed by, and construed in accordance with, the laws of the State of
New York. Regardless of any other provision in any other agreement, for purposes
of the Uniform Commercial Code, the State of New York shall be deemed to be the
Depository Institution's jurisdiction (within the meaning of Section 9-304 of
the Uniform Commercial Code as in effect from time to time (including any
successor thereto) in the State of New York), and the Deposit Account shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to its conflicts of law provisions (other than Section
5-1401 and Section 5-1402 of the New York General Obligation Law as in effect
from time to time (including any successor thereto)).
Section 12. COUNTERPARTS
This Deposit Account Control Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which, when taken together,
shall constitute but one contract. Delivery of an executed counterpart of this
Deposit Account Control Agreement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Deposit Account
Control Agreement.
5
Section 13. WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS DEPOSIT
ACCOUNT CONTROL AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS DEPOSIT ACCOUNT CONTROL
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 14. MISCELLANEOUS
(a) This Deposit Account Control Agreement does
not create any obligation or duty of the Depository Institution other than those
expressly set forth herein.
(b) No amendment, supplement or other modification
of this Deposit Account Control Agreement, or any waiver of any right hereunder,
shall be binding on any party to this Deposit Account Control Agreement, unless
it is in writing and signed by each of the parties to this Deposit Account
Control Agreement.
(c) Section headings have been inserted in this
Deposit Account Control Agreement for convenience only and shall not affect the
construction of, or be taken into consideration in interpreting, this Deposit
Account Control Agreement.
(d) In the event any one or more of the provisions
contained in this Deposit Account Control Agreement should be held invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
(e) The provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby.
(f) This Deposit Account Control Agreement and the
exhibits hereto constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, the parties hereto have executed this Deposit
Account Control Agreement as of the date first above mentioned.
________________________, as Depositor
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
________________________, as Depository
Institution
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
THE BANK OF NEW YORK, as Agent
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
EXHIBIT A
TO DEPOSIT ACCOUNT CONTROL AGREEMENT
[LETTERHEAD OF THE BANK OF NEW YORK]
[DATE]
[NAME AND ADDRESS OF DEPOSITORY INSTITUTION]
Re: Notice of Exclusive Control
---------------------------
Ladies/Gentlemen:
Reference is made to the Deposit Account Control Agreement (as
amended, supplemented or otherwise modified from time to time, the "DEPOSIT
ACCOUNT CONTROL AGREEMENT"), dated as of ____________________, among
______________ (the "DEPOSITOR"), _____________ (the "DEPOSITORY INSTITUTION" or
"YOU"), and The Bank of New York, as agent (the "AGENT"). Capitalized terms used
herein and not defined herein, shall have the meanings assigned to such terms in
the Deposit Account Control Agreement.
We hereby give you notice of our exclusive control over the Deposit
Account and all financial assets credited thereto. You are hereby instructed not
to accept any direction, instructions or entitlement orders with respect to the
Deposit Account or the financial assets credited thereto from any person other
than the undersigned, unless otherwise ordered by a court of competent
jurisdiction.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Depositor.
Very truly yours,
THE BANK OF NEW YORK, as Agent
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
2
EXHIBIT B
TO DEPOSIT ACCOUNT CONTROL AGREEMENT
[LETTERHEAD OF THE BANK OF NEW YORK]
[DATE]
[NAME AND ADDRESS OF DEPOSITORY INSTITUTION]
Re: Termination of Deposit Account Control Agreement
------------------------------------------------
Ladies/Gentlemen:
Reference is made to the Deposit Account Control Agreement (as amended,
supplemented or otherwise modified from time to time, the "DEPOSIT ACCOUNT
CONTROL AGREEMENT"), dated as of ________________, among _____________(the
"DEPOSITOR"),___________ (the "DEPOSITORY INSTITUTION" or "YOU"), and The Bank
of New York, as agent (the "AGENT"). Capitalized terms used herein and not
defined herein, shall have the meanings assigned to such terms in the Deposit
Account Control Agreement.
You are hereby notified that the Deposit Account Control Agreement is
terminated and you have no further obligations to the undersigned thereunder.
Notwithstanding any previous instructions to you, you are hereby instructed to
accept all future directions with respect to the Collateral from the Depositor.
This notice terminates any obligations you may have to the undersigned with
respect to the Collateral; however nothing contained in this notice shall alter
any obligations which you may otherwise owe to the Depositor pursuant to any
other agreement.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Depositor.
Very truly yours,
THE BANK OF NEW YORK, as Agent
By:
-------------------------------
Name:
------------------------------
Title:
----------------------------
3
EXHIBIT C
TO SUPPLEMENTAL SECURITY AGREEMENT
FORM OF SECURITIES ACCOUNT CONTROL AGREEMENT
--------------------------------------------
SECURITIES ACCOUNT CONTROL AGREEMENT, dated as of _______________ (as
amended, supplemented or otherwise modified from time to time, this "SECURITIES
ACCOUNT CONTROL AGREEMENT"), among ___________ (the "GRANTOR"), _____________,
in its capacity (in such capacity, the "SECURITIES INTERMEDIARY") as a
"securities intermediary" within the meaning of Section 8-102 of the Uniform
Commercial Code as in effect from time to time (including any successor thereto)
in the State of New York, and THE BANK OF NEW YORK, as agent for the benefit of
certain secured parties (the "AGENT").
RECITALS
--------
A. Pursuant to the terms and conditions of one or more security
agreements (as the same may from time to time be amended, restated or otherwise
modified, the "SECURITY AGREEMENT"), the Grantor granted to certain secured
parties represented herein by the Agent a security interest in and lien upon,
among other things, the Securities Account (as defined below) and all funds and
other property from time to time held in or credited to the Securities Account,
including, without limitation, all investment property and other financial
assets, all security entitlements with respect thereto, all cash balances and
all proceeds of each of the foregoing, whether now or hereafter existing or
arising (collectively, the "COLLATERAL").
B. The Grantor, the Agent and the Securities Intermediary are entering
into this Securities Account Control Agreement to perfect the above-mentioned
security interest in the Collateral.
Section 1. DEFINITIONS
As used herein, the terms "ENTITLEMENT HOLDER" "ENTITLEMENT
ORDER", "FINANCIAL ASSET", "INVESTMENT PROPERTY", "PROCEEDS", "SECURITIES
ACCOUNT" "SECURITY" and "SECURITY ENTITLEMENT" shall have the meanings set forth
in Articles 8 and 9 of the Uniform Commercial Code as in effect from time to
time in the State of New York.
Section 2. NOTICE AND ACKNOWLEDGMENT OF SECURITY INTEREST
The Grantor and the Agent hereby notify the Securities
Intermediary of, and the Securities Intermediary hereby acknowledges, the
security interest granted by the Grantor to the secured parties represented
herein by the Agent in all of the Grantor's right, title and interest in and to
the Collateral.
4
Section 3. ESTABLISHMENT OF SECURITIES ACCOUNT
The Securities Intermediary hereby confirms and agrees that:
(a) The Securities Intermediary has established
account number _____________ in the name of ____________ (such account and any
successor account, the "SECURITIES ACCOUNT"), and the Securities Intermediary
shall not close or change the name or account number of the Securities Account
without the prior written consent of the Agent.
(b) The Grantor irrevocably directs the Securities
Intermediary, and the Securities Intermediary agrees, to make all notations in
the Securities Intermediary's records pertaining to the Securities Account that
are necessary or appropriate to reflect the security interest of the secured
parties represented herein by the Agent in the Collateral and to designate the
Securities Account as _________________ Collateral Account for The Bank of New
York, as Agent".
(c) All securities or other property underlying
any financial assets credited to the Securities Account shall be registered in
the name of the Securities Intermediary, indorsed to the Securities Intermediary
or in blank or credited to another securities account maintained in the name of
the Securities Intermediary and in no case will any financial asset credited to
the Securities Account be registered in the name of the Grantor, payable to the
order of the Grantor or specially indorsed to the Grantor, except to the extent
the foregoing have been specially indorsed to the Securities Intermediary or in
blank.
(d) All property delivered to the Securities
Intermediary pursuant to the Security Agreement will be promptly credited to the
Securities Account.
(e) The Securities Account is a "securities account"
within the meaning of Section 8-501 of the Uniform Commercial Code as in effect
from time to time (including any successor thereto) in the State of New York.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE SECURITIES
INTERMEDIARY
The Securities Intermediary hereby makes the following
representations, warranties and covenants:
(a) The Securities Account has been established as set
forth in Section 3 above, and such Securities Account will be maintained in the
manner set forth herein until termination of this Securities Account Control
Agreement.
(b) This Securities Account Control Agreement is the
valid and legally binding obligation of the Securities Intermediary.
(c) On the date of this Securities Account Control
Agreement and, except as provided in Section 9 hereof, the Securities
Intermediary does not know of any claim to or interest in the Collateral or the
Securities Account, other than the interests of the Grantor and the Agent (for
the
5
benefit of certain secured parties), and has not identified in its records any
other person as an entitlement holder with respect to the Collateral or the
Securities Account.
Section 5. FINANCIAL ASSET ELECTION
The Securities Intermediary hereby agrees that each item of
property (including, without limitation, any investment property, financial
asset, security, instrument, general intangible or cash) credited to the
Securities Account shall be treated as a "financial asset" within the meaning of
Section 8-102(a)(9) of the Uniform Commercial Code as in effect from time to
time (including any successor thereto) in the State of New York.
Section 6. CONTROL OF THE SECURITIES ACCOUNT
(a) Subject to the provisions of this Securities
Account Control Agreement, the Securities Account shall be under the "control"
(with the meaning of Article 9 of the Uniform Commercial Code as in effect from
time to time in the State of New York) of the Agent and the Agent shall have the
sole right to make or permit withdrawals from the Securities Account and to
exercise all rights with respect thereto from time to time as set forth in this
Securities Account Control Agreement.
(b) The Grantor irrevocably authorizes and directs
the Securities Intermediary, and the Securities Intermediary agrees, to comply
with any instructions, including, without limitation, entitlement orders,
originated by the Agent and received by the Securities Intermediary in writing
from the Agent, without further notice to, or consent from, the Grantor, at any
time by delivering a notice to the Securities Intermediary in substantially the
form set forth in Exhibit A hereto (a "NOTICE OF EXCLUSIVE CONTROL").
(c) Prior to the date on which a Notice of
Exclusive Control is received by the Securities Intermediary from the Agent, the
Agent agrees that:
(i) the Grantor may direct the Securities
Intermediary with respect to the voting of any financial assets held in or
credited to the Securities Account; and
(ii) the Securities Intermediary may accept
instructions with respect to the Collateral, including, without limitation,
entitlement orders, originated by the Grantor.
(d) Upon receipt by the Securities Intermediary of
a Notice of Exclusive Control from the Agent:
(i) the Grantor directs the Securities
Intermediary, and the Securities Intermediary agrees, to take all instructions
with respect to the Collateral solely from or originated by the Agent; and
(ii) the Securities Intermediary shall
cease to accept any and all instructions with respect to the Collateral,
including, without limitation, entitlement orders from the
6
Grantor or any other person (other than the Agent) and shall accept all such
instructions only from the Agent.
Section 7. MAINTENANCE OF SECURITIES ACCOUNT
In addition to, and not in lieu of, the obligation of the
Securities Intermediary to honor entitlement orders as agreed in Section 6
hereof, the Securities Intermediary agrees to maintain the Securities Account as
follows:
(a) PERMITTED INVESTMENTS. Until such time as the
Securities Intermediary receives a Notice of Exclusive Control signed by the
Agent, the Grantor shall direct the Securities Intermediary with respect to the
selection of investments to be made for the Securities Account.
(b) STATEMENTS AND CONFIRMATIONS. The Securities
Intermediary will promptly send copies of all statements, confirmations and
other correspondence concerning the Securities Account and/or any financial
assets credited thereto simultaneously to each of the Grantor and the Agent at
the address for each set forth in Section 11 hereof.
(c) TAX REPORTING. All items of income, gain,
expense and loss recognized in the Securities Account shall be reported to the
Internal Revenue Service and all state and local taxing authorities under the
name and taxpayer identification number of the Grantor.
Section 8. OTHER AGREEMENTS
(a) Except as otherwise provided in Section 9
hereof, the Grantor and the Securities Intermediary agree not to enter into any
agreement with any other person (except for the secured parties represented
herein by the Agent) relating to any of the Collateral pursuant to which such
person is identified in the records of the Securities Intermediary as a person
having a security entitlement against the Securities Intermediary with respect
to any of the Collateral.
(b) Except as otherwise provided in Section 8
hereof, the Securities Intermediary will not advance any credit secured by any
of the Collateral, directly or indirectly, to the Grantor.
(c) All charges, fees and expenses of the
Securities Intermediary incurred in connection with the performance of its
duties hereunder and the maintenance and operation of the Securities Account
shall be for the account of the Grantor and the Agent shall not be responsible
or liable therefor.
Section 9. SUBORDINATION OF LIEN; WAIVER OF SET-OFF
To the extent that the Securities Intermediary has or may have
in the future any security interest in or lien on any of the Collateral, the
Securities Intermediary subordinates such security interest and lien to the
security interest of the secured parties represented herein by the Agent, except
that the Securities Intermediary may retain its lien on the Collateral to secure
(a) advances made by the
7
Securities Intermediary in connection with the advance posting of dividends,
interest and other distributions, the crediting of any checks that are
subsequently returned unpaid because of uncollected or insufficient funds and
other advances made by the Grantor as part of its cash management services, all
in the ordinary course of business, (b) advances made in connection with the
settlement of securities transactions and (c) normal commissions and fees for
the Securities Account. Except as provided in the preceding sentence, the
Securities Intermediary waives any lien, security interest, right of set-off or
deduction or banker's lien which it may have in or on the Collateral.
Section 10. LIMITATION OF LIABILITY; INDEMNIFICATION
(a) The Securities Intermediary shall not be
liable for any loss or injury resulting from its actions or its performance or
lack of performance of its duties hereunder or for its investment decisions in
the absence of gross negligence or willful misconduct on its part. In no event
shall the Securities Intermediary be liable for (i) acting in accordance with
instructions from the Grantor or, after the delivery of a Notice of Exclusive
Control, the Agent, (ii) special, consequential or punitive damages, (iii)
losses due to forces beyond the control of the Securities Intermediary or any
subcustodian, including, without limitation, strikes, work stoppages, acts of
war or terrorism, insurrection, revolution, nuclear or natural catastrophes or
acts of God, the insolvency of any subcustodian or depository, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services, or (iv) the acts of omissions of its agents or
subcustodians so long as the selection of such agents or subcustodians was not
grossly negligent or an act of willful misconduct.
(b) The Grantor hereby agrees to indemnify and hold
harmless the Securities Intermediary against any claims, liabilities, expenses
or losses in any way arising out of or related to this Securities Account
Control Agreement (including reasonable attorneys' fees and disbursements),
except to the extent that the claims, liabilities, expenses or losses are caused
by the gross negligence or willful misconduct of the Securities Intermediary.
The provisions of this Section shall survive the termination of this Securities
Account Control Agreement.
Section 11. NOTICES
Any notice, request or other communication required or permitted
to be given under this Deposit Account Control Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
facsimile or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the following address (any party may change its address in the manner
set forth in this Section):
(a) if to the Grantor, to it at ________________,
Attention of _____________ (Telephone No. (___)___ -____; Telecopy No.
(___)___ -____);
(b) if to the Securities Intermediary, to it
at _______________, Attention of: ___________ (Telephone No. (___)___ -____;
Facsimile No. (___)___ -____); and
8
(c) if to the Agent, to it at One Wall Street, New
York, New York 10286, Attention of: Renee Dudley, Agency Function Administration
(Telephone No. (212) 635-4975; Facsimile No. (212) 635-6365 or 6366 or 6367),
with a copy to The Bank of New York, at One Wall Street, New York, New York
10286, Attention of: Kristen Talaber (Telephone No. (212) 635-8692; Telecopy No.
(212) 635-8593).
Section 12. TERMINATION
This Securities Account Control Agreement shall remain in effect
until the earlier of (a) receipt by the Securities Intermediary of written
notice from the Agent in substantially the form of Exhibit B hereto (a "NOTICE
OF TERMINATION"), or (b) delivery by the Securities Intermediary of all of the
Collateral to the Agent by crediting such Collateral to an account in the name
of the Agent, or as otherwise agreed to in writing by the Agent and the
Securities Intermediary. The rights and powers granted to the Agent in this
Securities Account Control Agreement are powers coupled with an interest and
will not be affected by the insolvency or bankruptcy of the Grantor nor by the
lapse of time.
Section 13. CHOICE OF LAW
This Securities Account Control Agreement and the Securities
Account shall be governed by, and construed in accordance with, the laws of the
State of New York. Regardless of any other provision in any other agreement, for
purposes of the Uniform Commercial Code, the State of New York shall be deemed
to be the Securities Intermediary's jurisdiction (within the meaning of Section
8-110 of the Uniform Commercial Code as in effect from time to time (including
any successor thereto) in the State of New York), and the Securities Account (as
well as the security entitlements related thereto) shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to its conflicts of law provisions (other than Section 5-1401 and Section 5-1402
of the New York General Obligation Law as in effect from time to time (including
any successor thereto)).
Section 14. COUNTERPARTS
This Securities Account Control Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which, when taken together,
shall constitute but one contract. Delivery of an executed counterpart of this
Securities Account Control Agreement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Securities
Account Control Agreement.
Section 15. WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
SECURITIES ACCOUNT CONTROL AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF
9
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS SECURITIES ACCOUNT CONTROL AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 16. MISCELLANEOUS
(a) This Securities Account Control Agreement does
not create any obligation or duty of the Securities Intermediary other than
those expressly set forth herein.
(b) No amendment, supplement or modification of
this Securities Account Control Agreement, or any waiver of any right hereunder,
shall be binding on any party to this Securities Account Control Agreement
unless it is in writing and signed by each of the parties to this Securities
Account Control Agreement.
(c) Section headings have been inserted in this
Securities Account Control Agreement for convenience only and shall not affect
the construction of, or be taken into consideration in interpreting, this
Securities Account Control Agreement.
(d) In the event any one or more of the provisions
contained in this Securities Account Control Agreement should be held invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
(e) The provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby.
(f) This Securities Account Control Agreement and
the exhibits hereto constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
PENTON MEDIA, INC.
SECURITIES ACCOUNT CONTROL AGREEMENT
------------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Securities
Account Securities Account Control Agreement as of the date first above
mentioned.
____________________________, as Grantor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
_____________________, as Securities Intermediary
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
____________________________, as Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT A
TO SECURITIES ACCOUNT CONTROL AGREEMENT
[LETTERHEAD OF THE BANK OF NEW YORK]
[DATE]
[NAME AND ADDRESS OF SECURITIES INTERMEDIARY]
Re: Notice of Exclusive Control
---------------------------
Ladies/Gentlemen:
Reference is made to the Securities Account Control Agreement (as
amended, supplemented or otherwise modified from time to time, the "SECURITIES
ACCOUNT CONTROL AGREEMENT"), dated as of _____________, among __________ (the
"GRANTOR"), ____________(the "SECURITIES INTERMEDIARY" or "YOU"), and The Bank
of New York, as agent (the "AGENT"). Capitalized terms used herein and not
defined herein, shall have the meanings assigned to such terms in the Securities
Account Control Agreement.
We hereby give you notice of our exclusive control over the Securities
Account and all financial assets credited thereto. You are hereby instructed not
to accept any direction, instructions or entitlement orders with respect to the
Securities Account or the financial assets credited thereto from any person
other than the undersigned, unless otherwise ordered by a court of competent
jurisdiction.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Grantor.
Very truly yours,
THE BANK OF NEW YORK, as Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT B
TO SECURITIES ACCOUNT CONTROL AGREEMENT
[LETTERHEAD OF THE BANK OF NEW YORK]
[DATE]
[NAME AND ADDRESS OF SECURITIES INTERMEDIARY]
Re: Notice of Termination of Securities Account Control Agreement
-------------------------------------------------------------
Ladies/Gentlemen:
Reference is made to the Securities Account Control Agreement (as
amended, supplemented or otherwise modified from time to time, the "SECURITIES
ACCOUNT CONTROL AGREEMENT"), dated as of _______________, ________________ among
(the "GRANTOR"), _______________(the "SECURITIES INTERMEDIARY" or "YOU"), and
The Bank of New York, as agent (the "AGENT"). Capitalized terms used herein and
not defined herein, shall have the meanings assigned to such terms in the
Securities Account Control Agreement.
You are hereby notified that the Securities Account Control Agreement is
terminated and you have no further obligations to the undersigned thereunder.
Notwithstanding any previous instructions to you, you are hereby instructed to
accept all future directions with respect to the Collateral from the Grantor.
This notice terminates any obligations you may have to the undersigned with
respect to the Collateral, however nothing contained in this notice shall alter
any obligations which you may otherwise owe to the Grantor pursuant to any other
agreement.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Grantor. Very truly yours,
THE BANK OF NEW YORK, as Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PENTON MEDIA, INC. EXHIBIT E
----------------------------
FORM OF COMPLIANCE CERTIFICATE
I, ___________, do hereby certify that I am the ______________ of Penton
Media, Inc. (the "BORROWER"), and that, as such, I am duly authorized to execute
and deliver this Compliance Certificate on the Borrower's behalf pursuant to
Section 6.1(e) of the Amended and Restated Credit Agreement, dated as of March
8, 2002, by and among the Borrower, the Lenders party thereto, Bank of America,
N.A., as Syndication Agent, Bank One, NA and Fleet National Bank, as
Co-Documentation Agents, and The Bank of New York as Administrative Agent (as
the same may be amended, supplemented or otherwise modified from time to time,
the "CREDIT AGREEMENT"). Capitalized terms used herein which are not otherwise
defined herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
I hereby certify that:
1. There exists no violation of any covenant or agreement contained in
any Loan Document, and no condition or event has occurred which would constitute
a Default or Event of Default [, EXCEPT AS FOLLOWS(1)]
2. Attached are true and correct calculations (in form and substance
satisfactory to the Administrative Agent) showing compliance with Sections 7.13,
7.14, 7.15, 7.16 and 7.17 of the Credit Agreement.
3. Attached is a list of the Subsidiary Guarantors as of the date
hereof.
4. All financial statements delivered herewith have been prepared in
accordance with GAAP. There have been no material changes in the application of
GAAP since the date of the audited financial statements referred to in Section
4.4 of the Credit Agreement [, EXCEPT AS FOLLOWS:(2)]
5. Attached are analyses of top publications and trade shows of the
Borrower and the Subsidiaries, setting forth (to the extent available) in each
case in comparative form the figures for the corresponding period or periods of
the previous fiscal year, including information regarding revenue, EBITDA,
exhibitors, attendees, square footage, re-sign rates, cancellations and ad
pages.
__________________________
(1) Specify all such violations, conditions and events, the nature and status
thereof and any action taken or proposed to be taken with respect thereto.
(2) Specify all such changes, and the effect of each such change on the
financial statements accompanying this Compliance Certificate.
IN WITNESS WHEREOF, I have executed this Compliance Certificate on this
day of , 2002.
_______________________________
- 2 -
PENTON MEDIA, INC. EXHIBIT F
FORM OF BORROWING BASE CERTIFICATE
----------------------------------
Reference is made to the Amended and Restated Credit Agreement, dated as
of March 8, 2002, among Penton Media, Inc., a Delaware corporation (the
"BORROWER"), the Lenders party thereto, Bank of America, N.A., as Syndication
Agent, Bank One, NA and Fleet National Bank, as Co-Documentation Agents, and The
Bank of New York, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT").
Terms defined in the Credit Agreement are used herein with the same meanings.
I hereby certify that as of ___________, ______, the Borrowing Base was
$_________. Attached hereto is a schedule setting forth a detailed calculation
of the such Borrowing Base.
IN WITNESS WHEREOF, I have executed this Borrowing Base Certificate on
this ___ day of ____, ____.
____________________________
COMPUTATION OF BORROWING AMOUNT
BALANCE OF RECEIVABLES FROM LAST BORROWING BASE
CERTIFICATE $___________
(a) PLUS new billings $___________
(b) MINUS returns and credit memos $___________
(c) PLUS debit adjustments $___________
(d) MINUS credit adjustments $___________
(e) MINUS collections $___________
(f) MINUS discounts $___________
RECEIVABLES
1. Outstanding balance of those Receivables of any Loan
Party that have been earned by performance arising out
of sales of merchandise, goods or services (including
advertising, publication subscriptions and trade shows)
in the ordinary course of business established by such
Loan Party, which constitute good and valid accounts
representing undisputed bona fide indebtedness
incurred by an Account Debtor for a fixed sum as set
forth in the invoice relating thereto, which are and at all
times shall continue to be acceptable to the
Administrative Agent in all respects in accordance with
its reasonable credit judgment, which are not in dispute,
and that constitute Collateral in which the Secured
Parties have a fully perfected first priority Lien (other
than as a result of the failure to comply with the federal
Assignment of Claims Act or similar laws with respect
to Receivables, the Account Debtor on which is a
Governmental Authority $___________
2. Ineligible items:
(a) in the case of a Receivable arising from such
Loan Party's publishing business, such
Receivable is more than (i) 120 days past due
according to the original terms of sale, or (ii)
120 days past the original invoice date thereof $___________
(b) Receivables or any related Account Debtor
with respect to which any representation or
warranty contained in any Loan Document is
not true and correct $___________
(c) Receivables with respect to which any Account
Debtor has disputed liability or made any claim,
but solely to the extent of such dispute or claim $___________
(d) Receivables with respect to which any Account
Debtor has: (i) filed a petition for bankruptcy
or any other relief under the bankruptcy code
or any other law relating to bankruptcy,
insolvency, reorganization or relief of debtors;
(ii) made an assignment for the benefit of
creditors; (iii) had filed against it any petition or
other application for relief under the bankruptcy
code or any such other law; (iv) failed,
suspended business operations, become
insolvent, or called a meeting of its creditors for
the purpose of obtaining any financial
concession or accommodation; or (v) had or
suffered a receiver or a trustee to be appointed
for all or a significant portion of its assets or
affairs $___________
(e) Receivables with respect to which the Account
Debtor is located outside the United States $___________
(f) Receivables with respect to which the sale to
such Account Debtor on such Receivable is on
- 2 -
a bill-on-hold, guaranteed sale, sale-and-return,
sale-on-approval or consignment basis $___________
(g) Receivables subject to a Lien in favor of any
Person other than the Administrative Agent for
the benefit of the Secured Parties (other than a
Permitted Lien which is subordinate to Liens
granted to the Administrative Agent for the
benefit of the Secured Parties) $___________
(h) Receivables subject to any deduction, offset,
counterclaim, full or partial refund, return
privilege or other conditions, other than volume
sales discounts given in the ordinary course of
such Loan Party's business, but only to the
extent of such potential deduction, offset,
counterclaim, refund, return privilege or other
conditions $___________
(i) Receivables with respect to which the Account Debtor
is located in New Jersey or Minnesota, unless such
Loan Party (i) has received a certificate of authority
to do business and is in good standing in such state,
or (ii) has filed a Notice of Business Activities Report
with the appropriate office or agency of such state for
the current year $___________
(j) Receivables with respect to which the Account
Debtor is an officer, employee or Affiliate of
any Loan Party $___________
(k) Receivables denominated in a currency other
than Dollars $___________
(l) Receivables not evidenced by an invoice or
other writing in form acceptable to the
Administrative Agent, in its sole discretion $___________
(m) Except with respect to Receivables arising out
of publication subscriptions and trade shows,
Receivables with respect to which any Loan
- 3 -
Party, in order to be entitled to collect
such Receivable, is required to perform any
additional service for, or perform or incur
any additional obligation to, the Person to
whom or to which it was made $___________
(n) Receivables placed with a third party
for collection or determined by the
applicable Loan Party to be uncollectable $___________
(o) the total Receivables of such Account Debtor
to the Loan Parties (taken as a whole)
represent more than 10% of the Eligible
Receivables of the Loan Parties (taken as a
whole), but only to the extent of the excess
over 10% of the Eligible Receivables $___________
3. Total of Items 2(a) through 2(o) $___________
4. ELIGIBLE RECEIVABLES
(Item 1 less Item 3) $___________
5. BORROWING BASE
(80% of Item 4) $___________
6. AGGREGATE SUM OF THE REVOLVING COMMITMENTS $___________
7. AVAILABLE REVOLVING AMOUNT
(The lesser of Item 6 and Item 5) $___________
8. REVOLVING CREDIT EXPOSURE OF ALL LENDERS $___________
9. AVAILABILITY TO BORROW
(Item 7 - Item 8) $___________
- 4 -
PENTON SCHEDULE B
-----------------
EXISTING LOANS
--------------
OUTSTANDING REVOLVING LOANS $0.00
LETTERS OF CREDIT $150,000.00
TERM LOANS(1):
LENDER TERM LOAN A TERM LOAN B TOTAL
- -------------------- -------------- ------------- --------------
THE BANK OF NEW YORK $10,408,033.00 $9,586,549.54 $19,994,582.54
BANK OF AMERICA, N.A. $11,592,553.00 $7,132,653.80 $18,725,206.80
BANK ONE, NA $11,592,553.00 -- $11,592,553.00
FLEET NATIONAL BANK $17,963,720.00 $4,613,321.31 $22,577,041.31
ALLFIRST BANK $6,696,516.00 $3,926,230.49 $10,622,746.49
BANK OF MONTREAL $5,022,387.00 $2,944,673.10 $7,967,060.10
CREDIT AGRICOLE
INDOSUEZ $5,022,387.00 $2,944,673.10 $7,967,060.10
DRESDNER BANK AG,
NEW YORK AND GRAND
CAYMAN BRANCHES $10,095,313.00 -- $10,095,313.00
THE HUNTINGTON
- --------------------------
(1) Prior to giving effect to the Prepayments to be made on the Restatement
Date.
LENDER TERM LOAN A TERM LOAN B TOTAL
- ---------------------- --------------- ---------------- -----------------
NATIONAL BANK $3,348,258.00 $1,963,114.79 $5,311,372.79
NATIONAL BANK OF
CANADA $4,295,877.00 -- $4,295,877.00
NATIONAL CITY BANK $7,868,406.00 $4,613,321.32 $12,481,727.32
BNP PARIBAS $7,868,406.00 $4,613,321.32 $12,481,727.32
CITIZENS BANK OF
MASSACHUSSETS $5,022,387.00 $2,944,673.10 $7,967,060.10
SUNTRUST BANK, INC. $5,369,847.00 -- $5,369,847.00
VAN KAMPEN SENIOR
INCOME TRUST -- $7,614,157.18 $7,614,157.18
VAN KAMPEN CLO I
LIMITED -- $3,935,438.36 $3,935,438.36
VAN KAMPEN SENIOR
FLOATING RATE FUND -- $2,143,408.39 $2,143,408.39
VAN KAMPEN CLO II
LIMITED -- $1,788,835.64 $1,788,835.64
VAN KAMPEN PRIME
RATE INCOME TRUST -- $5,000,000.00 $5,000,000.00
KEY CORPORATE
CAPITAL, INC. $1,674,129.00 $981,557.39 $2,655,686.39
--------------- -------------- ---------------
TOTALS $113,840,772.00 $66,745,928.83 $180,586,700.83
- 2 -
AMENDMENT NO. 1 TO SECURITY AGREEMENT
-------------------------------------
AMENDMENT NO. 1 (this "AMENDMENT"), dated as of March 8, 2002, to the
Security Agreement (as the same may be further amended, supplemented or
otherwise modified from time to time, the "SECURITY AGREEMENT"), dated as of
September 1, 1999, among PENTON MEDIA, INC. (the "BORROWER"), the Subsidiaries
of the Borrower party thereto and THE BANK OF NEW YORK, as Administrative Agent.
RECITALS
--------
I. Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Security Agreement.
II. The Borrower has requested that the Administrative Agent and the
Required Lenders agree to amend the Security Agreement upon the terms and
conditions contained in this Amendment, and the Administrative Agent and the
Required Lenders are willing so to agree.
Accordingly, in consideration of the Recitals and the terms and
conditions 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. Section 1(b) of the Security Agreement is hereby amended by inserting
the following defined terms therein in appropriate alphabetical order:
"CASH MANAGEMENT SERVICES" means treasury, depository and other
cash management services and/or automated clearing house transfers of
funds.
"DESIGNATED CASH MANAGER" means, during the period beginning on
the fifth Business Day following the date upon which the Administrative
Agent and the Lenders receive a Notice of Designation (the "INITIAL
NOTICE") and ending on the fourth Business Day following the date upon
which the Administrative Agent and the Lenders receive a subsequent
Notice of Designation, the Lender (and its Affiliates) designated as
such in the Initial Notice; PROVIDED that KeyBank, National Association
(and its Affiliates) shall be deemed to be the Designated Cash Manager
until the fourth Business Day following the date, if any, upon which the
Administrative Agent and the Lenders receive a Notice of Designation
designating another Lender as the Designated Cash Manager.
"LEISUREHUB" means, Leisurehub.com Ltd., a company organized
under the laws of England.
"PENTON MEDIA FRANCE" means, Penton Media France SAS, a company
organized under the laws of France.
"NOTICE OF DESIGNATION" means any written notice delivered by
the Borrower to the Administrative Agent and the Lenders that expressly
designates one of the Lenders as the Designated Cash Manager.
2. The defined term "Obligations" contained in Section 1 of the Security
Agreement is hereby amended by (i) replacing the word "and" appearing
immediately prior to clause (c) of such definition with a comma, and (ii)
inserting the following immediately prior to the period appearing at the end of
such definition:
", and (d) except to the extent otherwise agreed upon in writing by a
Lender, all obligations of the Borrower, monetary or otherwise, in
respect of any overdrafts and/or other liabilities for Cash Management
Services rendered to the Borrower by such Lender at the time such Lender
was the Designated Cash Manager ("CASH MANAGEMENT OBLIGATIONS"),
PROVIDED that (i) Cash Management Obligations in excess of $2,000,000
outstanding at any one time ("EXCESS CASH MANAGEMENT OBLIGATIONS") shall
conclusively be deemed not to be "Obligations", and (ii) in determining
which such Cash Management Obligations, if any, constitute Excess Cash
Management Obligations, priority shall be given to Cash Management
Obligations that are first in time (E.G., such that the Cash Management
Obligations that were later in time shall be deemed to be Excess Cash
Management Obligations).
3. The defined term "Secured Parties" contained in Section 1 of the
Security Agreement is hereby amended by (i) replacing the phrase "and (d)"
appearing on the last line of such definition with the phrase "and (e)", and
(ii) inserting the following new clause (d) immediately after clause (c) of such
definition:
", (d) at any time, each Lender (and its Affiliates) holding Cash
Management Obligations that do not constitute Excess Cash Management
Obligations,"
4. The following term contained in Section 1 of the Security Agreement
is hereby amended and restated in its entirety as follows:
"PLEDGED EQUITY" means, with respect to any Grantor, all right, title
and interest of such Grantor in any Equity Interests (other than the
Equity Interests of ComMunic, Leisurehub (provided that Leisurehub is
dissolved by no later than July 15, 2002) and Penton Media France),
whether now or hereafter acquired or arising in the future, PROVIDED
that "Pledged Equity" shall not include any outstanding capital stock of
a "controlled foreign corporation" as defined in the Code in excess of
65% of the voting power of all classes of capital stock of such
corporation entitled to vote.
5. On and as of the date hereof, each Loan Party hereby (a) reaffirms
and admits the validity and enforceability of the Loan Documents and all of its
obligations thereunder, (b) agrees and admits that it has no defenses to or
offsets against any such obligation, except as otherwise expressly provided in
the Loan Documents, and (c) represents and warrants that no Event of Default has
occurred
- 2 -
and is continuing, and each of the representations and warranties made by it in
the Loan Documents is true and correct with the same effect as though such
representation and warranty had been made on such date, except representations
and warranties made only as of a specific date, which such Loan Party reaffirms
were true and correct as of such date.
6. In all other respects the Security Agreement shall remain in full
force and effect and no amendment in respect of any term or condition of the
Security Agreement contained herein shall be deemed to be an amendment in
respect of any other term or condition contained in any Loan Document.
7. This Amendment may be executed in any number of counterparts all of
which, taken together, shall constitute one Amendment. In making proof of this
Amendment, it shall only be necessary to produce the counterpart executed and
delivered by the party to be charged.
8. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED TO
BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCEABLE IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
[SIGNATURE PAGES FOLLOW]
- 3 -
AMENDMENT NO. 1 TO SECURITY AGREEMENT
PENTON MEDIA, INC.
AS EVIDENCE of its agreement to the terms and conditions herein
contained, each of the undersigned has caused this Amendment to be executed on
its behalf.
PENTON MEDIA, INC.
By: /s/Joseph G. NeCastro
------------------------------
Name: Joseph G. NeCastro
----------------------------
Title: Chief Financial Officer
---------------------------
CONSENTED AND AGREED TO:
DONOHUE MEEHAN PUBLISHING COMPANY
INTERNET WORLD MEDIA, INC.
ONE, INC.
BOARDWATCH, INCORPORATED
PENTON INTERNET, INC.
STARDUST.COM
STREAMING MEDIA, INC.
DUKE INVESTMENTS, INC.
DUKE COMMUNICATIONS INTERNATIONAL, INC.
PTS DELAWARE, INC.
TECH CONFERENCES, INCORPORATED
HEALTHWELL.COM, INC.
AS TO EACH OF THE FOREGOING:
By: /s/Joseph G. NeCastro
------------------------------
Name: Joseph G. NeCastro
----------------------------
Title: CFO/Treasurer
---------------------------
AMENDMENT NO. 1 TO SECURITY AGREEMENT
PENTON MEDIA, INC.
THE BANK OF NEW YORK, individually and
as Administrative Agent
By: /s/Kristen E. Talaber
------------------------------
Name: Kristen E. Talaber
----------------------------
Title: Vice President
---------------------------
SUPPLEMENTAL SECURITY AGREEMENT
AMONG
PENTON MEDIA, INC.,
EACH OF THE OTHER GRANTORS PARTY HERETO
AND
THE BANK OF NEW YORK, AS ADMINISTRATIVE AGENT
----------------------------
DATED AS OF MARCH 8, 2002
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1. DEFINITIONS; GRANT OF SECURITY .................................1
Section 1.1 GENERAL DEFINITIONS ........................................1
Section 1.2 OTHER DEFINITIONS; INTERPRETATION ..........................3
Section 1.3 GRANT OF SECURITY ..........................................3
ARTICLE 2. SECURITY FOR OBLIGATIONS; NO ASSUMPTION OF LIABILITY ..........4
Section 2.1 SECURITY FOR OBLIGATIONS ...................................4
Section 2.2 NO ASSUMPTION OF LIABILITY .................................4
ARTICLE 3. REPRESENTATIONS AND WARRANTIES AND COVENANTS ...................4
Section 3.1 GENERALLY ..................................................4
Section 3.2 INVESTMENT RELATED PROPERTY ................................8
ARTICLE 4. FURTHER ASSURANCES ............................................10
ARTICLE 5. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT .............11
ARTICLE 6. REMEDIES UPON DEFAULT .........................................12
Section 6.1 REMEDIES GENERALLY ........................................12
Section 6.2 APPLICATION OF PROCEEDS OF SALE ...........................14
Section 6.3 INVESTMENT RELATED PROPERTY ...............................15
Section 6.4 REGISTRATION, ETC. ........................................15
ARTICLE 7. REIMBURSEMENT OF ADMINISTRATIVE AGENT .........................16
ARTICLE 8. WAIVERS; AMENDMENT ............................................17
ARTICLE 9. SECURITY INTEREST ABSOLUTE ....................................17
ARTICLE 10. TERMINATION; RELEASE .........................................18
ARTICLE 11. ADDITIONAL GRANTORS ..........................................18
ARTICLE 12. NOTICES ......................................................18
ARTICLE 13. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS ...............18
ARTICLE 14. SURVIVAL OF AGREEMENT; SEVERABILITY ..........................19
ARTICLE 15. GOVERNING LAW ................................................19
ARTICLE 16. COUNTERPARTS .................................................19
ARTICLE 17. HEADINGS .....................................................20
ARTICLE 18. JURISDICTION; VENUE; CONSENT TO SERVICE OF PROCESS ...........20
ARTICLE 19. WAIVER OF JURY TRIAL .........................................20
SCHEDULES:
- ----------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Schedule I List of Subsidiaries and Addresses for Notices
- ------------------------------------------------------------------------------
Schedule 3.1(a)(i) List of Chief Executive Offices, Jurisdictions of
Organization and
Federal Employer Identification Numbers
- ------------------------------------------------------------------------------
Schedule 3.1(a)(ii) List of Legal and Other Names
- ------------------------------------------------------------------------------
Schedule 3.1(a)(v) List of Filing Offices
- ------------------------------------------------------------------------------
Schedule 3.4 List of Investment Related Property
- ------------------------------------------------------------------------------
EXHIBITS:
- ---------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Exhibit A Form of Supplement
- ------------------------------------------------------------------------------
Exhibit B Form of Deposit Account Control Agreement
- ------------------------------------------------------------------------------
Exhibit C Form of Securities Account Control Agreement
- ------------------------------------------------------------------------------
(ii)
SUPPLEMENTAL SECURITY AGREEMENT, dated as of March 8, 2002, among PENTON
MEDIA, INC., a Delaware corporation (the "BORROWER"), each of the subsidiaries
of the Borrower listed on Schedule I (each such subsidiary, individually, a
"SUBSIDIARY GUARANTOR" and, collectively, the "SUBSIDIARY GUARANTORS"; the
Subsidiary Guarantors and the Borrower are referred to collectively herein as
the "GRANTORS"), and THE BANK OF NEW YORK, as administrative agent under the
Credit Agreement referred to in the next paragraph.
Reference is made to the Amended and Restated Credit Agreement, dated as
of March 8, 2002, among Penton Media, Inc., a Delaware corporation (the
"BORROWER"), the Lenders party thereto, Bank of America, N.A., as Syndication
Agent, Bank One, NA and Fleet National Bank, as Co-Documentation Agents, and The
Bank of New York, as Administrative Agent (as the same may be amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is also made to the Security Agreement, dated as of September
1, 1999, among the Borrower, the Subsidiary Guarantors party thereto and the
Administrative Agent (as amended, supplemented or otherwise modified from time
to time, the "EXISTING SECURITY AGREEMENT").
The Lenders have made, and have agreed to make, Loans to, and the
Issuing Bank has issued, and has agreed to issue, Letters of Credit for the
account of, the Borrower pursuant to, and upon the terms and subject to the
conditions specified in, the Credit Agreement. Each of the Subsidiary Guarantors
has agreed to guarantee, among other things, all the obligations of each Loan
Party under the Loan Documents. The obligations of the Lenders to make Loans and
the Issuing Bank to issue Letters of Credit are conditioned upon, among other
things, the execution and delivery by the Grantors of an agreement in the form
hereof to secure the Obligations.
Accordingly, the Grantors and the Administrative Agent, on behalf of
itself and each Secured Party (and each of their respective successors or
assigns), hereby agree as follows:
ARTICLE 1. DEFINITIONS; GRANT OF SECURITY
Section 1.1 GENERAL DEFINITIONS
As used in this Supplemental Security Agreement, the following
terms shall have the meanings specified below:
"ADDITIONAL GRANTOR" has the meaning assigned to such
term in Article 11.
"APPLICABLE DATE" means (i) in the case of any Grantor
(other than an Additional Grantor), the date hereof, and (ii) in the case of any
Additional Grantor, the date of the Supplement executed and delivered by such
Additional Grantor.
"BORROWER" has the meaning assigned to such term in
the preliminary statement of this Supplemental Security Agreement.
"COLLATERAL" has the meaning assigned to such term in
Section 1.3(a).
"COLLATERAL RECORDS" means all books, instruments,
certificates, Records, ledger cards, files, correspondence, customer lists,
blueprints, technical specifications, manuals and other documents, and all
computer software, computer printouts, tapes, disks and related data processing
software and similar items, in each case that at any time represent, cover or
otherwise evidence, or contain information relating to, any of the Collateral or
are otherwise necessary or helpful in the collection thereof or realization
thereupon.
"COLLATERAL SUPPORT" means all property (real or
personal) assigned, hypothecated or otherwise securing any of the Collateral,
and shall include any security agreement or other agreement granting a lien or
security interest in such real or personal property.
"CONTROL AGREEMENTS" means each Deposit Account
Control Agreement and Securities Account Control Agreement.
"CREDIT AGREEMENT" has the meaning assigned to such
term in the preliminary statement of this Supplemental Security Agreement.
"DEPOSIT ACCOUNT CONTROL AGREEMENT" means a Deposit
Account Control Agreement, substantially in the form of Exhibit B, or such other
form reasonably acceptable to the Administrative Agent pursuant to which the
Administrative Agent shall have "control" (within the meaning of Article 9 of
the UCC) over such applicable Deposit Account.
"DEPOSIT ACCOUNTS" means all "deposit accounts" as
defined in Article 9 of the UCC, including all such accounts described in
Schedule 3.2 hereto or to the applicable Supplement.
"GRANTOR" and "GRANTORS" have the meanings assigned to
such terms in the preliminary statement of this Supplemental Security Agreement.
"INVESTMENT RELATED PROPERTY" means all cash, "money"
as defined in Article 1 of the UCC, "securities" as defined in Article 8 of the
UCC, Permitted Investments, certificates of deposit, Deposit Accounts,
Securities Accounts and "securities entitlements" as defined in Article 8 of the
UCC, in each case, regardless of whether characterized as "investment property"
under the UCC.
"OBLIGATIONS" has the meaning assigned to such term in
the Existing Security Agreement.
"PROCEEDS" means (i) all "proceeds" as defined in
Article 9 of the UCC, (ii) payments or distributions made with respect to any
Investment Related Property, (iii) any payment received from any insurer or
other Person or entity as a result of the destruction, loss, theft, damage or
other involuntary conversion of whatever nature of any asset or property that
constitutes the Collateral, and (iv) whatever is receivable or received when any
of the Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or involuntary.
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"RECORD" means a "RECORD" as defined in Article 9 of
the UCC.
"SECURED PARTIES" has the meaning assigned to such
term in the Existing Security Agreement.
"SECURITIES ACCOUNT CONTROL AGREEMENT" means a
Securities Account Control Agreement, substantially in the form of Exhibit C, or
such other form reasonably acceptable to the Administrative Agent pursuant to
which the Administrative Agent shall have "control" (within the meaning of
Article 9 of the UCC) over such applicable Securities Account.
"SECURITIES ACCOUNTS" means all "securities accounts"
as defined in Article 8 of the UCC, including all such accounts described in
Schedule 3.2 hereto or to the applicable Supplement.
"SECURITY INTEREST" has the meaning assigned to such
term in Section 1.3(a).
"SUPPLEMENT" means a supplement hereto, substantially
in the form of Exhibit A.
"SUPPORTING OBLIGATION" means (i) all "supporting
obligations" as defined in Article 9 of the UCC and (ii) all Guarantees and
other secondary obligations supporting any of the Collateral, in each case
regardless of whether characterized as a "supporting obligation" under the UCC.
"UCC" means the Uniform Commercial Code as in effect
from time to time in the State of New York or, when the context implies, the
Uniform Commercial Code as in effect from time to time in any other applicable
jurisdiction.
Section 1.2 OTHER DEFINITIONS; INTERPRETATION
(a) OTHER DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein, and the term "subsidiary" shall have the meanings
assigned to such terms in the Credit Agreement.
(b) RULES OF INTERPRETATION. The rules of interpretation
specified in Sections 1.2, 1.3 and 1.4 of the Credit Agreement shall be
applicable to this Supplemental Security Agreement. All references herein to
provisions of the UCC shall include all successor provisions under any
subsequent version or amendment to any Article of the UCC.
Section 1.3 GRANT OF SECURITY
(a) GRANT OF SECURITY INTEREST: As security for the payment or
performance, as applicable, in full of the Obligations, each Grantor hereby
bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to the Administrative Agent (and its successors and assigns), for
the ratable benefit of the Secured Parties, and hereby grants to the
Administrative Agent (and its successors and assigns), for the ratable benefit
of the Secured Parties, a security interest (the "SECURITY INTEREST") in all of
such Grantor's right, title and interest in, to and under the following, in each
case whether now owned or existing or hereafter acquired or arising and wherever
located (all of which
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being hereinafter collectively referred to as the "COLLATERAL"): (i) all
Investment Related Property, (ii) to the extent not otherwise included in clause
(i) of this Section, all Collateral Records, Collateral Support and Supporting
Obligations in respect of any of the foregoing, (iii) to the extent not
otherwise included in clauses (i) and (ii) of this Section, the account referred
to in Section 3.2(c)(ii) and all funds and other property from time to time in,
or credited to, such account or any Deposit Account or Securities Account, and
(iv) to the extent not otherwise included in clauses (i) through (iii) of this
Section, all Proceeds, products, substitutions, accessions, rents and profits of
or in respect of any of the foregoing.
(b) REVISIONS TO UCC. For the avoidance of doubt, it is
expressly understood and agreed that, to the extent the UCC is revised after the
date hereof such that the definition of any of the foregoing terms included in
the description or definition of the Collateral is changed, the parties hereto
desire that any property which is included in such changed definitions, but
which would not otherwise be included in the Security Interest on the date
hereof, nevertheless be included in the Security Interest upon the effective
date of such revision. Notwithstanding the immediately preceding sentence, the
Security Interest is intended to apply immediately on the Applicable Date to all
of the Collateral to the fullest extent permitted by applicable law, regardless
of whether any particular item of the Collateral was then subject to the UCC.
ARTICLE 2. SECURITY FOR OBLIGATIONS; NO ASSUMPTION OF LIABILITY
Section 2.1 SECURITY FOR OBLIGATIONS
This Supplemental Security Agreement secures, and the Collateral
is collateral security for, the prompt and complete payment or performance in
full when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of amounts that would
become due but for the operation of the automatic stay under Section 262(a) of
Title 11 of the United States Code, or any similar provision of any other
bankruptcy, insolvency, receivership or other similar law), of all Obligations
with respect to each Grantor.
Section 2.2 NO ASSUMPTION OF LIABILITY
Notwithstanding anything to the contrary herein, the Security
Interest is granted as security only and shall not subject the Administrative
Agent or any other Secured Party to, or in any way alter or modify, any
obligation or liability of any Grantor with respect to or arising out of the
Collateral.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES AND COVENANTS
Section 3.1 GENERALLY
(a) REPRESENTATIONS AND WARRANTIES. Each of the Grantors,
jointly with the other Grantors and severally, represents and warrants to the
Administrative Agent and the other Secured Parties that:
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(i) As of the Applicable Date, (A) such Grantor's chief
executive office or its principal place of business is, and for the preceding
four months has been, located at the office indicated on Schedule 3.1(a)(i)
hereto or to the applicable Supplement, (B) such Grantor's jurisdiction of
organization is the jurisdiction indicated on Schedule 3.1(a)(i) hereto or to
the applicable Supplement, and (C) such Grantor's Federal Employer
Identification Number is as set forth on Schedule 3.1(a)(i) hereto or to the
applicable Supplement.
(ii) As of the Applicable Date, (A) such Grantor's full legal
name is as set forth on Schedule 3.1(a)(ii) hereto or to the applicable
Supplement and (B) such Grantor has not done in the preceding five years, and
does not do, business under any other name (including any trade-name or
fictitious business name), except for those names set forth on Schedule
3.1(a)(ii) hereto or to the applicable Supplement.
(iii) Such Grantor has not within the five years preceding the
Applicable Date become bound (whether as a result of merger or otherwise) as
debtor under a security agreement entered into by another Person (other than the
Existing Security Agreement), which has not theretofore been terminated.
(iv) Such Grantor has good and valid rights in, and title to,
the Collateral with respect to which it has purported to grant the Security
Interest, except for Liens expressly permitted pursuant to the Loan Documents.
(v) All actions and consents, including all filings, notices,
registrations and recordings, necessary or desirable to create, perfect or
ensure the first priority (subject only to Liens expressly permitted by the Loan
Documents) of the Security Interest in the Collateral owned or held by it or on
its behalf or for the exercise by the Administrative Agent or any other Secured
Party of any voting or other rights provided for in this Supplemental Security
Agreement or the exercise of any remedies in respect of any such Collateral have
been made or obtained, (A) except for the filing of UCC financing statements
naming such Grantor as "debtor" and the Administrative Agent as "secured party",
or the making of other appropriate filings, registrations or recordings,
containing a description of such Collateral in each applicable governmental,
municipal or other office specified on Schedule 3.1(a)(v) hereto or to the
applicable Supplement, (B) except for any such Collateral as to which the
representations and warranties in this Section 3.1(a)(v) would not be true
solely by virtue of such Collateral having been used or disposed of in a manner
expressly permitted hereunder or under any other Loan Document, and (C) except
to the extent that such Security Interest may not be perfected by filing,
registering, recording or taking any other action in the United States.
(vi) All Collateral owned or held by it or on its behalf is
owned or held by it or on its behalf free and clear of any Lien, except for
Permitted Encumbrances and other Liens expressly permitted by the Loan
Documents. It has not filed or consented to the filing of (A) any financing
statement or analogous document under the UCC or any other applicable laws
covering any such Collateral or (B) any assignment in which it assigns any such
Collateral or any security agreement or similar instrument covering any such
Collateral with any foreign
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governmental, municipal or other office, in each case, which financing
statement, analogous document, assignment or other instrument, as
applicable, is still in effect, except for Liens expressly permitted by
the Loan Documents and Liens under, and filings made pursuant to, the
Existing Security Agreement.
(vii) The Security Interest in the Collateral owned or
held by it or on its behalf (A) is effective to vest in the
Administrative Agent, on behalf of the Secured Parties, the rights of
the Administrative Agent in such Collateral as set forth herein and (B)
does not violate Regulation T, U or X as of the Applicable Date.
(b) COVENANTS AND AGREEMENTS. Each Grantor hereby covenants and
agrees as follows:
(i) It will promptly notify the Administrative Agent in
writing of any change (A) in its legal name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (B) in the location of its chief executive office, principal
place of business, any office in which it maintains books or records
relating to any of the Collateral owned or held by it or on its behalf
or, except to the extent permitted by Section 3.1(b)(vii) or Section
3.2, any office or facility at which any such Collateral is located
(including the establishment of any such new office or facility), (C) in
its identity or legal or organizational structure or its jurisdiction of
formation, or (D) in its Federal Taxpayer Identification Number. It
agrees not to effect or permit any change referred to in the preceding
sentence unless all filings have been made under the UCC or otherwise
that are required in order for the Administrative Agent to continue at
all times following such change to have a valid, legal and perfected
security interest in all the Collateral with the priority required
hereby.
(ii) It shall maintain, at its own cost and expense,
such complete and accurate Records with respect to the Collateral owned
or held by it or on its behalf as is consistent with its current
practices and in accordance with such prudent and standard practices
used in industries that are the same as or similar to those in which it
is engaged, but in any event to include complete accounting Records
indicating all payments and proceeds received with respect to any part
of such Collateral, and, at such time or times as the Administrative
Agent may reasonably request, promptly to prepare and deliver to the
Administrative Agent a duly certified schedule or schedules in form and
detail satisfactory to the Administrative Agent showing the identity and
amount of any and all such Collateral.
(iii) It shall, at its own cost and expense, take any
and all actions necessary to defend title to the Collateral owned or
held by it or on its behalf against all Persons and to defend the
Security Interest in such Collateral and the priority thereof against
any Lien or other interest not expressly permitted by the Loan
Documents, and in furtherance thereof, it shall not take, or permit to
be taken, any action not otherwise expressly permitted by the Loan
Documents that could impair the Security Interest or the priority
thereof or any Secured Party's rights in or to such Collateral.
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(iv) The Administrative Agent and such Persons as the
Administrative Agent may designate shall have the right, at the cost and expense
of such Grantor, to inspect all of its Records (and to make extracts and copies
from such Records), to discuss its affairs with its officers and independent
accountants and to verify under reasonable procedures the validity, amount,
quality, quantity, value, condition and status of, or any other matter relating
to, the Collateral owned or held by or on behalf of such Grantor, including, in
the case of Collateral in the possession of any third person, by contacting
contract parties or other obligors thereon or any third person possessing such
Collateral for the purpose of making such a verification. The Administrative
Agent shall have the absolute right to share on a confidential basis any
information it gains from such inspection or verification with any Secured
Party.
(v) At its option, the Administrative Agent may discharge past
due taxes, assessments, charges, fees, Liens, security interests or other
encumbrances at any time levied or placed on the Collateral owned or held by or
on behalf of such Grantor, and not permitted by the Loan Documents, and may pay
for the maintenance and preservation of such Collateral to the extent such
Grantor fails to do so as required by the Loan Documents, and such Grantor
agrees, jointly with the other Grantors and severally, to reimburse the
Administrative Agent on demand for any payment made or any expense incurred by
the Administrative Agent pursuant to the foregoing authorization; PROVIDED,
HOWEVER, that nothing in this paragraph shall be interpreted as excusing any
Grantor from the performance of, or imposing any obligation on the
Administrative Agent or any other Secured Party to cure or perform, any
covenants or other promises of any Grantor with respect to taxes, assessments,
charges, fees, Liens, security interests or other encumbrances and maintenance
as set forth herein or in the other Loan Documents.
(vi) It shall remain liable to observe and perform all the
conditions and obligations to be observed and performed by it under each
contract, agreement or instrument relating to the Collateral owned or held by it
or on its behalf, all in accordance with the terms and conditions thereof, and
it agrees, jointly with the other Grantors and severally, to indemnify and hold
harmless the Administrative Agent and the other Secured Parties from and against
any and all liability for such performance.
(vii) It shall not make, or permit to be made, an assignment,
pledge or hypothecation of the Collateral owned or held by it or on its behalf,
or grant any other Lien in respect of such Collateral, except as expressly
permitted by the Loan Documents. Except for Liens expressly permitted by the
Loan Documents, it shall not make or permit to be made any transfer of such
Collateral, and it shall remain at all times in possession of such Collateral,
except that unless and until the Administrative Agent shall notify it that an
Event of Default shall have occurred and be continuing and that, during the
continuance thereof, it shall not sell, convey, lease, assign, transfer or
otherwise dispose of any such Collateral (which notice may be given by telephone
if promptly confirmed in writing), it may use and dispose of such Collateral in
any lawful manner not inconsistent with the provisions of this Supplemental
Security Agreement or any other Loan Document.
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Section 3.2 INVESTMENT RELATED PROPERTY
(a) REPRESENTATIONS AND WARRANTIES. Each of the Grantors,
jointly with the other Grantors and severally, represents and warrants to the
Administrative Agent and the other Secured Parties that Schedule 3.2 hereto or
to the applicable Supplement sets forth, as of the Applicable Date, all of the
Deposit Accounts and Securities Accounts included in the Collateral owned or
held by or on behalf of such Grantor.
(b) REGISTRATION IN NOMINEE NAME; DENOMINATIONS. Each Grantor
hereby agrees that (i) without limiting Article 5, the Administrative Agent, on
behalf of the Secured Parties, shall have the right (in its sole and absolute
discretion) to hold any Investment Related Property in its own name as pledgee,
the name of its nominee (as pledgee or as sub-agent) or the name of the
applicable Grantor, endorsed or assigned, where applicable, in blank or in favor
of the Administrative Agent, (ii) at the Administrative Agent's request, such
Grantor will promptly give to the Administrative Agent copies of any material
notices or other communications received by it with respect to any Investment
Related Property registered in its name, and (iii) the Administrative Agent
shall at all times have the right to exchange any certificates, instruments or
other documents representing or evidencing any Investment Related Property owned
or held by or on behalf of such Grantor for certificates, instruments or other
documents of smaller or larger denominations for any purpose consistent with
this Supplemental Security Agreement.
(c) VOTING AND DISTRIBUTIONS.
(i) Unless and until an Event of Default shall have
occurred and be continuing:
(A) Each Grantor shall be entitled to
exercise any and all voting and/or other consensual rights and powers
inuring to an owner of the Investment Related Property, or any part
thereof, for any purpose consistent with the terms of this Supplemental
Security Agreement and the other Loan Documents; PROVIDED, HOWEVER, that
such Grantor will not be entitled to exercise any such right if the
result thereof could materially and adversely affect the rights inuring
to a holder of the Investment Related Property or the rights and
remedies of any of the Secured Parties under this Supplemental Security
Agreement or any other Loan Document or the ability of any of the
Secured Parties to exercise the same.
(B) The Administrative Agent shall execute
and deliver to each Grantor, or cause to be executed and delivered to
each Grantor, all such proxies, powers of attorney and other instruments
as such Grantor may reasonably request for the purpose of enabling it to
exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subsection (c)(i)(A) and to receive the cash
payments it is entitled to receive pursuant to subsection (c)(i)(C).
(C) Each Grantor shall be entitled to
receive, retain and use any and all cash dividends, interest and
principal paid on the Investment Related Property owned or held by it or
on its behalf to the extent and only to the extent that such cash
dividends, interest and
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principal are not prohibited by, and otherwise paid in accordance with, the
terms and conditions of the Credit Agreement, the other Loan Documents and
applicable laws. All non-cash dividends, interest and principal, and all
dividends, interest and principal paid or payable in cash or otherwise in
connection with a partial or total liquidation or dissolution, return of
capital, capital surplus or paid-in surplus, and all other distributions (other
than distributions referred to in the preceding sentence) made on or in respect
of the Investment Related Property, whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or reclassification
of the outstanding securities of any issuer of any Investment Related Property
or received in exchange for any Investment Related Property, or any part
thereof, or in redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a party or
otherwise, shall be and become part of the Collateral, and, if received by such
Grantor, shall not be commingled with any of its other funds or property but
shall be held separate and apart therefrom, shall be held in trust for the
benefit of the Administrative Agent hereunder and shall be forthwith delivered
to the Administrative Agent in the same form as so received (with any necessary
endorsement).
(ii) Without limiting the generality of the foregoing, upon the
occurrence and during the continuance of an Event of Default:
(A) All rights of each Grantor to dividends,
interest or principal that it is authorized to receive pursuant to subsection
(c)(i)(C) shall cease, and all such rights shall thereupon become vested in the
Administrative Agent, which shall have the sole and exclusive right and
authority to receive and retain such dividends, interest or principal, as
applicable. All dividends, interest and principal received by or on behalf of
any Grantor contrary to the provisions of this Section shall be held in trust
for the benefit of the Administrative Agent, shall be segregated from other
property or funds of such Grantor and shall be forthwith delivered to the
Administrative Agent upon demand in the same form as so received (with any
necessary endorsement). Any and all money and other property paid over to or
received by the Administrative Agent pursuant to the provisions of this
subsection (c)(ii)(A) shall be retained by the Administrative Agent in an
account to be established in the name of the Administrative Agent, for the
ratable benefit of the Secured Parties, upon receipt of such money or other
property and shall be applied in accordance with the provisions of Section 6.2.
Subject to the provisions of this subsection (c)(ii)(A), such account shall at
all times be under the sole dominion and control of the Administrative Agent,
and the Administrative Agent shall at all times have the sole right to make
withdrawals therefrom and to exercise all rights with respect to the funds and
other property from time to time therein or credited thereto as set forth in the
Loan Documents. After all Events of Default have been cured or waived, the
Administrative Agent shall, within five Business Days after all such Events of
Default have been cured or waived, repay to the applicable Grantor all cash
dividends, interest and principal (without interest) that such Grantor would
otherwise be permitted to retain pursuant to the terms of subsection (c)(i)(C)
and which remain in such account.
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(B) All rights of each Grantor to exercise
the voting and consensual rights and powers it is entitled to exercise
pursuant to subsection (c)(i)(A), and the obligations of the
Administrative Agent under subsection (c)(i)(B), shall cease, and all
such rights shall thereupon become vested in the Administrative Agent,
which shall have the sole and exclusive right and authority to exercise
such voting and consensual rights and powers, PROVIDED that, unless
otherwise directed by the Required Lenders, the Administrative Agent
shall have the right from time to time following and during the
continuance of an Event of Default to permit such Grantor to exercise
such rights. After all Events of Default have been cured or waived, the
applicable Grantor will have the right to exercise the voting and
consensual rights and powers that it would otherwise be entitled to
exercise pursuant to the terms of subsection (c)(i)(A).
(d) CASH AND INVESTMENT PROPERTY. Each Grantor covenants and
agrees that (i) with respect to each of its Deposit Accounts existing on the
date hereof and set forth in Schedule 3.2 hereto, it shall deliver, or cause to
be delivered, to the Administrative Agent, by no later than April 15, 2002, a
duly executed Deposit Account Control Agreement with respect to each such
Deposit Account (other than a Deposit Account that at all times has less than
(A) $25,000 on deposit therein, and (B) when aggregated with all other Deposit
Accounts that are not subject to a Deposit Account Control Agreement in favor of
the Administrative Agent, $100,000 on deposit therein), (ii) it shall not at any
time establish or maintain any other Deposit Account without first delivering to
the Administrative Agent a duly executed Deposit Account Control Agreement with
respect to such Deposit Account, (iii) with respect to each of its Securities
Accounts existing on the date hereof and set forth in Schedule 3.2 hereto, it
shall deliver, or cause to be delivered, to the Administrative Agent, by no
later than April 15, 2002, a duly executed Securities Account Control Agreement
with respect to each such Securities Account, (iv) it shall not at any time
establish or maintain any other Securities Account without first delivering to
the Administrative Agent a duly executed Securities Account Control Agreement
with respect to such Securities Account, and (v) it shall deposit, or cause to
be deposited, no less frequently than every other Business Day all of its
Investment Related Property (other than Deposit Accounts and Securities
Accounts) into one or more such Deposit Accounts or Securities Accounts. Prior
to the delivery of a "Notice of Exclusive Control" under the applicable Control
Agreement, and pursuant to the terms thereof and the other Loan Documents, each
Deposit Account and/or Securities Account shall at all times be under the
"control" (within the meaning of Article 9 of the UCC) of the Administrative
Agent or an agent of the Administrative Agent, and no Grantor shall have access
to or any right to draw upon or withdraw any cash or other funds therefrom,
except for purposes not otherwise prohibited by the Loan Documents.
ARTICLE 4. FURTHER ASSURANCES
Each Grantor hereby covenants and agrees, at its own cost and
expense, to execute, acknowledge, deliver and/or cause to be duly filed all such
further agreements, instruments and other documents (including favorable legal
opinions in connection with any Transaction), and take all such further actions,
that the Administrative Agent may from time to time reasonably request to
preserve, protect and perfect (including as a result of any revisions to Article
9 of the UCC in any jurisdiction or the effectiveness thereof or any other
change in applicable law) the Security Interest granted by it and
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the rights and remedies created hereby, including the payment of any fees and
taxes required in connection with its execution and delivery of this
Supplemental Security Agreement, the granting by it of the Security Interest and
the filing of any financing statements or other documents in connection herewith
or therewith. In addition, to the extent permitted by applicable law, each
Grantor hereby irrevocably authorizes the Administrative Agent to file one or
more financing or continuation statements, and amendments thereto, relative to
all or any part of the Collateral owned or held by it or on its behalf without
the signature of such Grantor and agrees that a photographic or other
reproduction of this Supplemental Security Agreement or of a financing statement
signed by such Grantor shall be sufficient as a financing statement and may be
filed as a financing statement in any and all jurisdictions. Each Grantor hereby
further irrevocably authorizes the Administrative Agent to file a Record or
Records, including financing statements, in all jurisdictions and with all
filing offices that the Administrative Agent may determine, in its sole and
absolute discretion, are necessary, advisable or prudent to perfect the Security
Interest granted by it and agrees that such financing statements may describe
the Collateral owned or held by it or on its behalf in the same manner as
described herein or may contain an indication or description of collateral that
describes such Collateral in any other manner that the Administrative Agent may
determine, in its sole and absolute discretion, is necessary, advisable or
prudent to perfect the Security Interest granted by such Grantor, including
describing such property as "all assets" or "all personal property."
ARTICLE 5. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT
Each Grantor hereby appoints the Administrative Agent as its
true and lawful agent and attorney-in-fact for the purpose of carrying out the
provisions of this Supplemental Security Agreement and taking any action and
executing any instrument that the Administrative Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest, and without limiting the generality of the
foregoing, the Administrative Agent shall have the right, with power of
substitution for such Grantor and in such Grantor's name or otherwise, for the
use and benefit of the Administrative Agent and the other Secured Parties, upon
the occurrence and during the continuance of an Event of Default and at such
other time or times permitted by the Loan Documents, (i) to receive, endorse,
assign and/or deliver any and all notes, acceptances, checks, drafts, money
orders or other evidences of payment relating to the Collateral owned or held by
it or on its behalf or any part thereof; (ii) to demand, collect, receive
payment of, give receipt for, and give discharges and releases of, any of such
Collateral; (iii) to commence and prosecute any and all suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect or otherwise realize on any of the Collateral owned or held by it or on
its behalf or to enforce any rights in respect of any of such Collateral; (iv)
to settle, compromise, compound, adjust or defend any actions, suits or
proceedings relating to any of such Collateral; (v) to notify, or to require
such Grantor to notify, obligors to make payment directly to the Administrative
Agent, and (vi) to use, sell, assign, transfer, pledge, make any agreement with
respect to or otherwise deal with any of such Collateral, and to do all other
acts and things necessary to carry out the purposes of this Supplemental
Security Agreement, as fully and completely as though the Administrative Agent
were the absolute owner of such Collateral for all purposes; PROVIDED, however,
that nothing herein contained shall be construed as requiring or obligating the
Administrative Agent or any other Secured Party to make any commitment or to
make any inquiry as to the nature or sufficiency
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of any payment received by the Administrative Agent or any other Secured Party,
or to present or file any claim or notice, or to take any action with respect to
any of the Collateral or the moneys due or to become due in respect thereof or
any property covered thereby, and no action taken or omitted to be taken by the
Administrative Agent or any other Secured Party with respect to any of the
Collateral shall give rise to any defense, counterclaim or offset in favor of
such Grantor or to any claim or action against the Administrative Agent or any
other Secured Party. The provisions of this Article shall in no event relieve
any Grantor of any of its obligations hereunder or under the other Loan
Documents with respect to any of the Collateral or impose any obligation on the
Administrative Agent or any other Secured Party to proceed in any particular
manner with respect to any of the Collateral, or in any way limit the exercise
by the Administrative Agent or any other Secured Party of any other or further
right that it may have on the date of this Supplemental Security Agreement or
hereafter, whether hereunder, under any other Loan Document, by law or
otherwise. Any sale pursuant to the provisions of this paragraph shall be deemed
to conform to the commercially reasonable standards as provided in Section
9-610(b) of the UCC as in effect in the State of New York or its equivalent in
other jurisdictions (or any successor provision).
ARTICLE 6. REMEDIES UPON DEFAULT
Section 6.1 REMEDIES GENERALLY
(a) GENERAL RIGHTS. Upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees to deliver each item of
Collateral owned or held by it or on its behalf to the Administrative Agent on
demand, and it is agreed that the Administrative Agent shall have the right,
with or without legal process and with or without prior notice or demand for
performance, to take possession of the Collateral owned or held by it or on its
behalf and without liability for trespass to enter any premises where such
Collateral may be located for the purpose of taking possession of or removing
such Collateral and, generally, to exercise any and all rights afforded to a
secured party under the UCC or other applicable law. Without limiting the
generality of the foregoing, each Grantor agrees that the Administrative Agent
shall have the right, subject to the mandatory requirements of applicable law,
to sell or otherwise dispose of any of the Collateral owned or held by or on
behalf of such Grantor, at public or private sale or at any broker's board or on
any securities exchange, for cash, upon credit or for future delivery as the
Administrative Agent shall deem appropriate. The Administrative Agent shall be
irrevocably authorized at any such sale of such Collateral constituting
securities (if it deems it advisable to do so) to restrict the prospective
bidders or purchasers to Persons who will represent and agree that they are
purchasing such Collateral for their own account for investment and not with a
view to the distribution or sale thereof, and upon consummation of any such
sale, the Administrative Agent shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely, free from
any claim or right on the part of the applicable Grantor, and such Grantor
hereby waives (to the extent permitted by law) all rights of redemption, stay,
valuation and appraisal which such Grantor now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
(b) SALE OF COLLATERAL. The Administrative Agent shall give each
Grantor ten days' written notice (which such Grantor agrees is reasonable notice
within the meaning of Sections 9-611
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and 9-612 of the UCC as in effect in the State of New York or its equivalent in
other jurisdictions (or any successor provisions)), of the Administrative
Agent's intention to make any sale of any of the Collateral owned or held by or
on behalf of such Grantor. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a broker's
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which such Collateral will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Administrative Agent may fix and state in the notice (if any) of such
sale. At any such sale, the Collateral to be sold may be sold in one lot as an
entirety or in separate parcels, as the Administrative Agent may (in its sole
and absolute discretion) determine. The Administrative Agent shall not be
obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Administrative Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of any of the Collateral is made on credit or for
future delivery, the Collateral so sold may be retained by the Administrative
Agent until the sale price is paid by the purchaser or purchasers thereof, but
the Administrative Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by applicable law, private)
sale made pursuant to this Section, any Secured Party may bid for or purchase,
free (to the extent permitted by applicable law) from any right of redemption,
stay, valuation or appraisal on the part of such Grantor (all said rights being
also hereby waived and released to the extent permitted by law), any of the
Collateral offered for sale and may make payment on account thereof by using any
claim then due and payable to such Secured Party from such Grantor as a credit
against the purchase price, and such Secured Party may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further
accountability to such Grantor therefor. For purposes hereof, (i) a written
agreement to purchase any of the Collateral shall be treated as a sale thereof,
(ii) the Administrative Agent shall be free to carry out such sale pursuant to
such agreement, and (iii) no Grantor shall be entitled to the return of any of
the Collateral subject thereto, notwithstanding the fact that after the
Administrative Agent shall have entered into such an agreement all Events of
Default shall have been remedied and the Obligations paid in full. As an
alternative to exercising the power of sale herein conferred upon it, the
Administrative Agent may proceed by a suit or suits at law or in equity to
foreclose upon any of the Collateral and to sell any of the Collateral pursuant
to a judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the
provisions of this Article shall be deemed to conform to the commercially
reasonable standards as provided in Section 9-610(b) of the UCC as in effect in
the State of New York or its equivalent in other jurisdictions (or any successor
provisions). Without limiting the generality of the foregoing, each Grantor
agrees as follows: (A) if the proceeds of any sale of the Collateral owned or
held by it or on its behalf pursuant to this Article are insufficient to pay all
the Obligations, it shall be liable for the resulting deficiency and the fees,
charges and disbursements of any counsel employed by the Administrative Agent or
any other Secured Party to collect such deficiency, (B) it hereby waives any
claims against the Administrative Agent arising by reason of the fact that the
price at which any such Collateral may have been sold at any private sale
pursuant to this Article was
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less than the price that might have been obtained at a public sale, even if the
Administrative Agent accepts the first offer received and does not offer such
Collateral to more than one offeree, (C) there is no adequate remedy at law for
failure by it to comply with the provisions of this Section and that such
failure would not be adequately compensible in damages, and therefore agrees
that its agreements in this Section may be specifically enforced, (D) the
Administrative Agent may sell any such Collateral without giving any warranties
as to such Collateral, and the Administrative Agent may specifically disclaim
any warranties of title or the like, and (E) the Administrative Agent shall have
no obligation to marshall any such Collateral.
Section 6.2 APPLICATION OF PROCEEDS OF SALE
The Administrative Agent shall apply the proceeds of any
collection or sale of the Collateral, as well as any Collateral consisting of
cash (except as otherwise provided in Section 6.11 of the Credit Agreement,
Section 3.7(b)(v)), as follows:
FIRST, to the payment of all reasonable costs and
expenses incurred by the Administrative Agent (in its capacity as such
hereunder or under any other Loan Document) in connection with such
collection or sale or otherwise in connection with this Supplemental
Security Agreement, any other Loan Document or any of the Obligations,
including all out-of-pocket court costs and the reasonable fees and
expenses of its agents and legal counsel, the repayment of all advances
made by the Administrative Agent hereunder or under any other Loan
Document on behalf of any Grantor and any other reasonable out-of-pocket
costs or expenses incurred in connection with the exercise of any right
or remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the
amounts so applied to be distributed among the Secured Parties pro rata
in accordance with the amounts of the Obligations owed to them on the
date of any such distribution); and
THIRD, to the applicable Grantor, its successors or
assigns, or as a court of competent jurisdiction may otherwise direct.
The Administrative Agent shall have sole and absolute discretion as to the time
of application of any such proceeds, moneys or balances in accordance with this
Supplemental Security Agreement. Upon any sale of the Collateral by the
Administrative Agent (including pursuant to a power of sale granted by statute
or under a judicial proceeding), the receipt of the purchase money by the
Administrative Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Administrative Agent or such officer
or be answerable in any way for the misapplication thereof.
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Section 6.3 INVESTMENT RELATED PROPERTY
In view of the position of each Grantor in relation to the
Investment Related Property, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "FEDERAL SECURITIES LAWS") with respect to any
disposition of the Investment Related Property permitted hereunder. Each Grantor
understands that compliance with the Federal securities laws might very strictly
limit the course of conduct of the Administrative Agent if the Administrative
Agent were to attempt to dispose of all or any part of the Investment Related
Property, and might also limit the extent to which or the manner in which any
subsequent transferee of any Investment Related Property could dispose of the
same. Similarly, there may be other legal restrictions or limitations affecting
the Administrative Agent in any attempt to dispose of all or part of the
Investment Related Property under applicable Blue Sky or other state securities
laws or similar laws analogous in purpose or effect. Each Grantor recognizes
that in light of such restrictions and limitations the Administrative Agent may,
with respect to any sale of the Investment Related Property, limit the
purchasers to those who will agree, among other things, to acquire such
Investment Related Property for their own account, for investment, and not with
a view to the distribution or resale thereof. Each Grantor acknowledges and
agrees that in light of such restrictions and limitations, the Administrative
Agent, in its sole and absolute discretion, (i) may proceed to make such a sale
whether or not a registration statement for the purpose of registering such
Investment Related Property, or any part thereof, shall have been filed under
the Federal securities laws and (ii) may approach and negotiate with a single
potential purchaser to effect such sale. Each Grantor acknowledges and agrees
that any such sale might result in prices and other terms less favorable to the
seller than if such sale were a public sale without such restrictions. In the
event of any such sale, the Administrative Agent shall incur no responsibility
or liability for selling all or any part of the Investment Related Property at a
price that the Administrative Agent, in its sole and absolute discretion, may in
good faith deem reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been realized if the
sale were deferred until after registration as aforesaid or if more than a
single purchaser were approached. The provisions of this Section will apply
notwithstanding the existence of a public or private market upon which the
quotations or sales prices may exceed substantially the price at which the
Administrative Agent sells any such Investment Related Property.
Section 6.4 REGISTRATION, ETC.
Each Grantor agrees that, upon the occurrence and during the
continuance of an Event of Default, if for any reason the Administrative Agent
desires to sell any of the Investment Related Property owned or held by or on
behalf of such Grantor at a public sale, it will, at any time and from time to
time, upon the written request of the Administrative Agent, use its best efforts
to take or to cause, where applicable, the issuer of such Investment Related
Property to take such action and prepare, distribute and/or file such documents,
as are required or advisable in the reasonable opinion of counsel for the
Administrative Agent to permit the public sale of such Investment Related
Property. Each Grantor further agrees to indemnify, defend and hold harmless the
Administrative Agent, each
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other Secured Party, any underwriter and their respective officers, directors,
affiliates and controlling Persons from and against all loss, liability,
expenses, costs of counsel (including reasonable fees and expenses of legal
counsel), and claims (including the costs of investigation) that they may incur,
insofar as such loss, liability, expense or claim, as applicable, relates to
such Grantor or any of its property, and arises out of or is based upon any
alleged untrue statement of a material fact contained in any prospectus (or any
amendment or supplement thereto) or in any notification or offering circular, or
arises out of or is based upon any alleged omission to state a material fact
required to be stated therein or necessary to make the statements in any thereof
not misleading, except insofar as the same may have been caused by any untrue
statement or omission based upon information furnished in writing to such
Grantor or the issuer of such Investment Related Property, as applicable, by the
Administrative Agent or any other Secured Party expressly for use therein. Each
Grantor further agrees, upon such written request referred to above, to use its
best efforts to qualify, file or register, or cause, where applicable, the
issuer of such Investment Related Property to qualify, file or register, any of
the Investment Related Property owned or held by or on behalf of such Grantor
under the Blue Sky or other securities laws of such states as may be requested
by the Administrative Agent and keep effective, or cause to be kept effective,
all such qualifications, filings or registrations. Each Grantor will bear all
costs and expenses of carrying out its obligations under this Section. Each
Grantor acknowledges that there is no adequate remedy at law for failure by it
to comply with the provisions of this Section and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section may be specifically enforced.
ARTICLE 7. REIMBURSEMENT OF ADMINISTRATIVE AGENT
Each Grantor agrees, jointly with the other Grantors and
severally, to pay to the Administrative Agent the amount of any and all
reasonable out-of-pocket expenses, including the fees, other charges and
disbursements of counsel and of any experts or agents, that the Administrative
Agent may incur in connection with (i) the administration of this Supplemental
Security Agreement relating to such Grantor or any of its property, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral owned or held by or on behalf of such
Grantor, (iii) the exercise, enforcement or protection of any of the rights of
the Administrative Agent hereunder relating to such Grantor or any of its
property, or (iv) the failure by such Grantor to perform or observe any of the
provisions hereof. Without limitation of its indemnification obligations under
the other Loan Documents, each of the Grantors agrees, jointly with the other
Grantors and severally, to indemnify the Administrative Agent and the other
Indemnitees against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related out-of-pocket expenses, including
reasonable counsel fees, other charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (a) the execution or delivery by such Grantor of this Supplemental
Security Agreement or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, or the performance by such Grantor of its
obligations under the Loan Documents and the other transactions contemplated
thereby or (b) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether or not any Indemnitee is a party thereto, PROVIDED
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and
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nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. Any amounts payable as provided hereunder shall
be additional Obligations secured hereby and by the other Security Documents.
The provisions of this Section shall remain operative and in full force and
effect regardless of the termination of this Supplemental Security Agreement or
any other Loan Document, the consummation of the transactions contemplated
hereby or thereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Supplemental Security
Agreement or any other Loan Document or any investigation made by or on behalf
of the Administrative Agent or any other Secured Party. All amounts due under
this Section shall be payable within ten days of written demand therefor and
shall bear interest at the rate specified in Section 3.1 of the Credit
Agreement.
ARTICLE 8. WAIVERS; AMENDMENT
No failure or delay of the Administrative Agent in exercising any power
or right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the other Secured Parties hereunder
and under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of
this Supplemental Security Agreement or any other Loan Document or consent to
any departure by any Grantor therefrom shall in any event be effective unless
the same shall be permitted by this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Grantor in any case shall entitle such Grantor
to any other or further notice or demand in similar or other circumstances.
Neither this Supplemental Security Agreement nor any provision hereof may be
waived, amended, supplemented or otherwise modified, or any departure therefrom
consented to, except pursuant to an agreement or agreements in writing entered
into by, between or among the Administrative Agent and the Grantor or Grantors
with respect to which such waiver, amendment, other modification or consent is
to apply, subject to any consent required in accordance with Section 10.2 of the
Credit Agreement.
ARTICLE 9. SECURITY INTEREST ABSOLUTE
All rights of the Administrative Agent hereunder, the Security
Interest and all obligations of each Grantor hereunder shall be absolute and
unconditional irrespective of (i) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document, any agreement with respect to any of
the Obligations, or any other agreement or instrument relating to any of the
foregoing, (ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other waiver, amendment,
supplement or other modification of, or any consent to any departure from, the
Credit Agreement, any other Loan Document or any other agreement or instrument
relating to any of the foregoing, (iii) any exchange, release or non-perfection
of any Lien on any other collateral, or any release or waiver, amendment,
supplement or other modification of, or consent under, or departure from, any
guaranty, securing or guaranteeing all or any of the Obligations, or (iv) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, any Grantor in respect of the Obligations or in respect of this
Supplemental Security Agreement or any other Loan Document.
- 17 -
ARTICLE 10. TERMINATION; RELEASE
This Supplemental Security Agreement and the Security Interest
shall terminate when all the Obligations have been finally and indefeasibly paid
in full in cash, the Credit Parties have no further commitment to lend or
otherwise extend credit under the Credit Agreement. Upon (i) any sale, transfer
or other disposition permitted by the Loan Documents (other than any sale,
transfer or other disposition of any Collateral that would, immediately after
giving effect thereto, continue to be Collateral but for the release of the
security interest therein pursuant to this clause) or (ii) the effectiveness of
any written consent to the release of the Security Interest in any Collateral
pursuant to Section 10.2 of the Credit Agreement, the Security Interest in such
Collateral shall be automatically released. In connection with any termination
or release pursuant to this Section, the Administrative Agent shall execute and
deliver to the applicable Grantor, at its own cost and expense, all UCC
termination statements and similar documents that such Grantor may reasonably
request to evidence such termination or release. Any execution and delivery of
documents pursuant to this Article shall be without recourse to or warranty by
the Administrative Agent or any other Secured Party.
ARTICLE 11. ADDITIONAL GRANTORS
Upon execution and delivery after the date hereof by the
Administrative Agent and a Subsidiary of a Supplement, such Subsidiary or
subsidiary, as applicable, shall become a Grantor hereunder with the same force
and effect as if originally named as a Grantor herein (each an "Additional
Grantor"). The execution and delivery of any Supplement shall not require the
consent of any other Grantor hereunder. The rights and obligations of each
Grantor hereunder and each other Loan Party and other party (other than a Credit
Party) under the Loan Documents shall remain in full force and effect
notwithstanding the addition of any Additional Grantor as a party to this
Supplemental Security Agreement.
ARTICLE 12. NOTICES
All communications and notices hereunder shall be in writing and
given as provided in Section 10.1 of the Credit Agreement. All communications
and notices hereunder to the Administrative Agent or the Borrower shall be given
to it at its address for notices set forth in such Section, and all
communications and notices hereunder to any other Grantor shall be given to it
at its address for notices set forth on Schedule I hereto or to the applicable
Supplement, with, in the case of any Grantor other than the Borrower, a copy to
the Borrower.
ARTICLE 13. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS
Whenever in this Supplemental Security Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party, and all covenants, promises and agreements
by or on behalf of any Grantor that are contained in this Supplemental Security
Agreement shall bind and inure to the benefit of each party hereto and its
successors and assigns. This Supplemental Security Agreement shall become
effective as to any Grantor when a counterpart hereof executed on behalf of such
Grantor shall have been delivered to the
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Administrative Agent and a counterpart hereof shall have been executed on behalf
of the Administrative Agent, and thereafter shall be binding upon such Grantor
and the Administrative Agent and their respective successors and assigns, and
shall inure to the benefit of such Grantor, the Administrative Agent and the
other Secured Parties, and their respective successors and assigns, except that
no Grantor shall have the right to assign its rights or obligations hereunder or
any interest herein or in any of the Collateral (and any such attempted
assignment shall be void), except as expressly contemplated by this Supplemental
Security Agreement or the other Loan Documents. This Supplemental Security
Agreement shall be construed as a separate agreement with respect to each of the
Grantors and may be amended, supplemented, waived or otherwise modified or
released with respect to any Grantor without the approval of any other Grantor
and without affecting the obligations of any other Grantor hereunder.
ARTICLE 14. SURVIVAL OF AGREEMENT; SEVERABILITY
All covenants, agreements, representations and warranties made
by the Grantors herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Supplemental Security Agreement
or any other Loan Document shall be considered to have been relied upon by the
Administrative Agent and the other Secured Parties and shall survive the
execution and delivery of any Loan Document and the making of any Loan,
regardless of any investigation made by the Secured Parties or on their behalf,
and shall continue in full force and effect until this Supplemental Security
Agreement shall terminate. In the event any one or more of the provisions
contained in this Supplemental Security Agreement or in any other Loan Document
should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
ARTICLE 15. GOVERNING LAW
THIS SUPPLEMENTAL SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
ARTICLE 16. COUNTERPARTS
This Supplemental Security Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one contract (subject to Article 13), and shall become effective as provided
in Article 13. Delivery of an executed counterpart of this Supplemental Security
Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Supplemental Security Agreement.
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ARTICLE 17. HEADINGS
Article and Section headings and the Table of Contents used herein are
for convenience of reference only, are not part of this Supplemental Security
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Supplemental Security Agreement.
ARTICLE 18. JURISDICTION; VENUE; CONSENT TO SERVICE OF PROCESS
Each Grantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Supplemental Security Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that, to the extent
permitted by applicable law, all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
extent permitted by applicable law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Supplemental Security
Agreement shall affect any right that the Administrative Agent or any other
Secured Party may otherwise have to bring any action or proceeding relating to
this Supplemental Security Agreement or the other Loan Documents against such
Grantor or any of its property in the courts of any jurisdiction. Each Grantor
hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Supplemental Security Agreement or the other Loan Documents in
any foregoing court referred to in this Article. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Each party hereto irrevocably consents to service
of process in the manner provided for notices in Article 12. Nothing in this
Supplemental Security Agreement will affect the right of any party hereto to
serve process in any other manner permitted by law.
ARTICLE 19. WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS SUPPLEMENTAL SECURITY AGREEMENT. EACH PARTY HERETO (I) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS SUPPLEMENTAL
SECURITY AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS ARTICLE.
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PENTON MEDIA, INC.
SUPPLEMENTAL SECURITY AGREEMENT
-------------------------------
IN WITNESS WHEREOF, the parties hereto have duly executed this Supplemental
Security Agreement as of the day and year first above written.
PENTON MEDIA, INC.
By: /s/Joseph G. NeCastro
--------------------------------
Name: Joseph G. NeCastro
------------------------------
Title: Chief Financial Officer
-----------------------------
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE 1 HERETO
AS TO EACH OF THE FOREGOING
By: /s/Joseph G. NeCastro
--------------------------------
Name: Joseph G. NeCastro
------------------------------
Title: CFO/Treasurer
-----------------------------
THE BANK OF NEW YORK, as
Administrative Agent
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
PENTON MEDIA, INC.
SUPPLEMENTAL SECURITY AGREEMENT
-------------------------------
IN WITNESS WHEREOF, the parties hereto have duly executed this Supplemental
Security Agreement as of the day and year first above written.
PENTON MEDIA, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE 1 HERETO
AS TO EACH OF THE FOREGOING
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
THE BANK OF NEW YORK, as
Administrative Agent
By: /s/Kristen E. Talaber
--------------------------------
Name: Kristen E. Talaber
------------------------------
Title: Vice President
-----------------------------
SCHEDULE I
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF SUBSIDIARIES AND ADDRESSES FOR NOTICES
----------------------------------------------
SUBSIDIARIES
I. SUBSIDIARIES OF THE BORROWER:
ADDRESSES FOR NOTICES
Grantor Address
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SCHEDULE 3.1(a)(i)
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF CHIEF EXECUTIVE OFFICES, JURISDICTIONS OF ORGANIZATION AND
FEDERAL EMPLOYER IDENTIFICATION NUMBERS
---------------------------------------
Jurisdiction of Federal Employer
Grantor Chief Executive Office Organization Identification No.
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SCHEDULE 3.1(a)(ii)
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF LEGAL AND OTHER NAMES
-----------------------------
Trade or Fictitious
Grantor Full Legal Name Business Name Period of Use
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SCHEDULE 3.1(a)(v)
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF FILING OFFICES
----------------------
[PROVIDE INFORMATION FOR EACH GRANTOR]
SCHEDULE 3.2
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF INVESTMENT RELATED PROPERTY
-----------------------------------
DEPOSIT ACCOUNTS
Grantor Depository Institution Account Number Account Name
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SECURITIES ACCOUNTS
Securities
Grantor Intermediary Account Number Account Name
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EXHIBIT A
TO SUPPLEMENTAL SECURITY AGREEMENT
FORM OF SUPPLEMENT
------------------
SUPPLEMENT NO. __, dated as of , to the SUPPLEMENTAL SECURITY AGREEMENT,
dated as of March 8, 2002, among PENTON MEDIA, INC, a Delaware corporation (the
"BORROWER"), the subsidiaries of the Borrower party thereto, and THE BANK OF NEW
YORK, as administrative agent under the Credit Agreement referred to in the next
paragraph (as amended, supplemented or otherwise modified from time to time, the
"SUPPLEMENTAL SECURITY AGREEMENT").
Reference is made to the Amended and Restated Credit Agreement, dated as
of March 8, 2002, among the Borrower, the Lenders party thereto, Bank of
America, N.A., as Syndication Agent, Bank One, NA (formerly known as The First
National Bank of Chicago), as Documentation Agent, Fleet National Bank, as
Co-Syndication Agent, and The Bank of New York, as Administrative Agent (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"). Capitalized terms (and the term "subsidiary") used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement and the Supplemental Security Agreement.
The Grantors have entered into the Supplemental Security Agreement in
order to induce the Credit Parties to enter into the Credit Agreement. Article
11 of the Supplemental Security Agreement provides that additional Subsidiaries
may become Grantors under the Supplemental Security Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary (the "NEW GRANTOR") is executing this Supplement in accordance with
the requirements of the Credit Agreement to become a Grantor under the
Supplemental Security Agreement in order to induce the Lenders to make
additional Loans and as consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Grantor hereby agree
as follows:
Section 1. In accordance with Article 11 of the Supplemental Security
Agreement, the New Grantor by its signature below becomes a Grantor under the
Supplemental Security Agreement with the same force and effect as if originally
named therein as a Grantor, and the New Grantor hereby agrees to all the terms
and provisions of the Supplemental Security Agreement applicable to it as a
Grantor thereunder. In furtherance of the foregoing, the New Grantor, as
security for the payment and performance in full of the Obligations, does hereby
create and grant to the Administrative Agent (and its successors and assigns),
for the benefit of the Secured Parties (and their successors and assigns), a
security interest in and lien on all of the New Grantor's right, title and
interest in and to the Collateral (as defined in the Supplemental Security
Agreement) owned or held by or on behalf of the New Grantor. Each reference to a
"Grantor" in the Supplemental Security Agreement shall be deemed to include the
New Grantor. The Supplemental Security Agreement is hereby incorporated herein
by reference.
Section 2. The New Grantor represents and warrants to the
Administrative Agent and the other Secured Parties that (i) this Supplement has
been duly authorized, executed and delivered by it
and constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally, (ii) set forth on the Schedules attached hereto are true and complete
schedules of all of the information that would have been required to have been
delivered by or on behalf of the New Grantor pursuant to the Supplemental
Security Agreement and the Schedules thereto if the New Grantor had been
originally named in the Supplemental Security Agreement, and (iii) the
representations and warranties made by it as a Grantor under the Supplemental
Security Agreement are true and correct on and as of the date hereof based upon
the applicable information referred to in clause (ii) of this Section.
Section 3. This Supplement may be executed in counterparts (and by each
party hereto on a different counterpart), each of which shall constitute an
original, but both of which, when taken together, shall constitute but one
contract. This Supplement shall become effective when the Administrative Agent
shall have received counterparts of this Supplement that, when taken together,
bear the signatures of the New Grantor and the Administrative Agent. Delivery of
an executed counterpart of this Supplement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Supplement.
Section 4. Except as expressly supplemented hereby, the Supplemental
Security Agreement shall remain in full force and effect.
Section 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 6. In the event any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Supplemental Security Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
hereto shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
Section 7. All communications and notices hereunder shall be in writing
and given as provided in Article 12 of the Supplemental Security Agreement. All
communications and notices hereunder to the New Grantor shall be given to it at
the address set forth in the applicable Schedule hereto, with a copy to the
Borrower.
Section 8. The New Grantor agrees to reimburse the Administrative Agent
for its out-of-pocket expenses in connection with this Supplement, including the
fees, disbursements and other charges of counsel for the Administrative Agent.
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- 2 -
SUPPLEMENT NO.
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TO THE SUPPLEMENTAL SECURITY AGREEMENT
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IN WITNESS WHEREOF, the New Grantor and the Administrative Agent
have duly executed this Supplement No. __ to the Supplemental Security Agreement
as of the day and year first above written.
[NAME OF NEW GRANTOR]
By: ______________________________
Name:_____________________________
Title:____________________________
THE BANK OF NEW YORK, as
Administrative Agent
By: ___________________________
Name:__________________________
Title:_________________________
[ATTACH SCHEDULES CORRESPONDING TO THE
SCHEDULES TO THE SUPPLEMENTAL SECURITY AGREEMENT]
EXHIBIT B
TO SUPPLEMENTAL SECURITY AGREEMENT
FORM OF DEPOSIT ACCOUNT CONTROL AGREEMENT
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DEPOSIT ACCOUNT CONTROL AGREEMENT, dated as of ___________ (as amended,
supplemented or otherwise modified from time to time, this "DEPOSIT ACCOUNT
CONTROL AGREEMENT"), among ________________ (the "DEPOSITOR"), ________________,
in its capacity (in such capacity, the "DEPOSITORY INSTITUTION") as a "bank"
within the meaning of Section 9-102 of Article 9 of the Uniform Commercial Code
as in effect from time to time (including any successor thereto) in the State of
New York, and THE BANK OF NEW YORK, as agent for the benefit of certain secured
parties (the "AGENT").
RECITALS
--------
A. Pursuant to the terms and conditions of one or more security
agreements (as the same may from time to time be amended, restated or otherwise
modified, the "SECURITY AGREEMENT"), the Depositor granted to certain secured
parties represented herein by the Agent a security interest in and lien upon,
among other things, all of the Depositor's right title and interest in and to
the Deposit Account (as defined below) and all funds and other property from
time to time held therein or credited thereto (collectively, the "COLLATERAL").
B. The Depositor, the Agent and the Depository Institution are entering
into this Deposit Account Control Agreement to perfect the above-mentioned
security interest in the Collateral.
Section 1. NOTICE AND ACKNOWLEDGMENT OF SECURITY INTEREST
The Depositor and the Agent hereby notify the Depository
Institution of, and the Depository Institution hereby acknowledges, the security
interest granted by the Depositor to the secured parties represented herein by
the Agent in all of the Depositor's right, title and interest in and to the
Collateral.
Section 2. ESTABLISHMENT OF DEPOSIT ACCOUNT
The Depository Institution hereby confirms and agrees that:
(a) The Depository Institution has established account
number in the name of (such account and any successor account, the "DEPOSIT
ACCOUNT"), and the Depository Institution shall not close or change the name or
account number of the Depository Account without the prior written consent of
the Agent.
(b) The Depositor irrevocably directs the Depository
Institution, and the Depository Institution agrees, to make all notations in the
Depository Institution's records pertaining to the Deposit Account that are
necessary or appropriate to reflect the security interest of the secured
parties represented herein by the Agent in the Collateral and to designate the
Deposit Account as "____________________" Collateral Account for The Bank of
New York, as Agent".
(c) All cash and other funds delivered to the Depository
Institution pursuant to the Security Agreement will be promptly credited to the
Deposit Account.
(d) The Deposit Account is a "deposit account" within the
meaning of Section 9-102(a)(29) of the Uniform Commercial Code as in effect from
time to time (including any successor thereto) in the State of New York.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITORY INSTITUTION
The Depository Institution hereby makes the following
representations, warranties and covenants:
(a) The Deposit Account has been established as set forth in
Section 2 above, and such Deposit Account will be maintained in the manner set
forth herein until termination of this Deposit Account Control Agreement.
(b) This Deposit Account Control Agreement is the valid and
legally binding obligation of the Depository Institution.
(c) On the date of this Deposit Account Control Agreement
and, except as provided in Section 7 hereof, the Depository Institution does not
know of any claim to or interest in the Collateral or the Deposit Account, other
than the interests of the Depositor and the Agent (for the benefit of certain
secured parties), and has not identified in its records any other person as a
customer, secured party or similar designation with respect to the Collateral or
the Deposit Account.
Section 4. CONTROL OF THE DEPOSIT ACCOUNT
(a) Subject to the provisions of this Deposit Account
Control Agreement, the Deposit Account shall be under the "control" (within the
meaning of Article 9 of the Uniform Commercial Code as in effect from time to
time in the State of New York) of the Agent and the Agent shall have the sole
right to make or permit withdrawals from the Deposit Account and to exercise all
rights with respect thereto from time to time as set forth in this Deposit
Account Control Agreement.
(b) The Depositor irrevocably authorizes and directs the
Depository Institution, and the Depository Institution agrees, to comply with
any instructions given by the Agent and received by the Depository Institution
in writing from the Agent, without further notice to, or consent from, the
Depositor, at any time, by delivering a notice to the Depository Institution in
substantially the form set forth in Exhibit A hereto (a "Notice of Exclusive
Control").
(c) Prior to the date on which a Notice of Exclusive Control
is received by the Depository Institution from the Agent, the Agent agrees that
the Depository Institution may accept instructions with respect to the
Collateral originated by the Depositor.
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(d) Upon receipt by the Depository Institution of a Notice
of Exclusive Control from the Agent:
(i) the Depositor directs the Depository Institution,
and the Depository Institution agrees, to take all instructions with respect to
the Collateral solely from or originated by the Agent; and
(ii) the Depository Institution shall cease to accept
any and all instructions with respect to the Collateral from the Depositor or
any other person (other than the Agent) and shall accept all such instructions
only from the Agent.
Section 5. MAINTENANCE OF DEPOSIT ACCOUNT
In addition to, and not in lieu of, the obligation of the
Depository Institution to honor instructions as agreed in Section 4 hereof, the
Depository Institution agrees to maintain the Deposit Account as follows:
(a) PERMITTED INVESTMENTS. Until such time as the Depository
Institution receives a Notice of Exclusive Control signed by the Agent, the
Depositor shall direct the Depository Institution with respect to the selection
of investments, if any, to be made for the Deposit Account.
(b) STATEMENTS AND CONFIRMATIONS. The Depository Institution
will promptly send copies of all statements, confirmations and other
correspondence concerning the Deposit Account and/or any funds credited thereto
simultaneously to each of the Depositor and the Agent at the address for each
set forth in Section 9 hereof.
(c) TAX REPORTING. All items of interest, if any, recognized
in the Deposit Account shall be reported to the Internal Revenue Service and all
state and local taxing authorities under the name and taxpayer identification
number of the Depositor.
Section 6. OTHER AGREEMENTS
(a) Except as otherwise provided in Section 7 hereof, the
Depositor and the Depository Institution agree not to enter into any agreement
with any other person (except for the secured parties represented herein by the
Agent) relating to any of the Collateral pursuant to which such person is
identified in the records of the Depository Institution as a person having a an
interest or claim against the Depository Institution with respect to any of the
Collateral.
(b) Except as otherwise provided in Section 7 hereof, the
Depository Institution will not advance any credit secured by any of the
Collateral, directly or indirectly, to the Depositor.
(c) All charges, fees and expenses of the Depository
Institution incurred in connection with the performance of its duties hereunder
and the maintenance and operation of the
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Deposit Account shall be for the account of the Depositor and the Agent shall
not be responsible or liable therefor.
Section 7. SUBORDINATION OF LIEN; WAIVER OF SET-OFF
To the extent that the Depository Institution has or may have in
the future any security interest in or lien on any of the Collateral, the
Depository Institution subordinates such security interest and lien to the
security interest of the secured parties represented herein by the Agent, except
that the Depository Institution may retain its lien on the Collateral to secure
(a) advances made by the Depository Institution in connection with the advance
posting of any dividends, interest and other distributions, the crediting of any
checks that are subsequently returned unpaid because of uncollected or
insufficient funds and other advances made by the Depositor as part of its cash
management services, all in the ordinary course of business, and (b) normal fees
for the Deposit Account. Except as provided in the preceding sentence, the
Depository Institution waives any lien, security interest, right of set-off or
deduction or banker's lien which it may have in or on the Collateral.
Section 8. LIMITATION OF LIABILITY; INDEMNIFICATION
(a) The Depository Institution shall not be liable for any
loss or injury resulting from its actions or its performance or lack of
performance of its duties hereunder or for its decisions in the absence of gross
negligence or willful misconduct on its part. In no event shall the Depository
Institution be liable for (i) acting in accordance with instructions from the
Depositor or, after the delivery of a Notice of Exclusive Control, the Agent,
(ii) special, consequential or punitive damages, (iii) losses due to forces
beyond the control of the Depository Institution, including, without limitation,
strikes, work stoppages, acts of war or terrorism, insurrection, revolution,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware)
services, or (iv) the acts of omissions of its agents so long as the selection
of such agents was not grossly negligent or an act of willful misconduct.
(b) The Depositor hereby agrees to indemnify and hold
harmless the Depository Institution against any claims, liabilities, expenses or
losses in any way arising out of or related to this Deposit Account Control
Agreement (including reasonable attorneys' fees and disbursements), except to
the extent that the claims, liabilities, expenses or losses are caused by the
gross negligence or willful misconduct of the Depository Institution. The
provisions of this Section shall survive the termination of this Deposit Account
Control Agreement.
Section 9. NOTICES
Any notice, request or other communication required or permitted
to be given under this Deposit Account Control Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
facsimile or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the following address (any party may change its address in the manner
set forth in this Section):
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(a) if to the Depositor, to it at _______________________,
Attention of __________________________ (Telephone No. (___)___-_____;
Telecopy No. (___)___-____);
(b) if to the Depository Institution, to it at
___________________, Attention of: ____________________________ (Telephone
No. (___)___-____; Facsimile No. (___)___-____); and
(c) if to the Agent, to it at One Wall Street, New York, New
York 10286, Attention of: Renee Dudley, Agency Function Administration
(Telephone No. (212) 635-4975; Facsimile No. (212) 635-6365 or 6366 or 6367),
with a copy to The Bank of New York, at One Wall Street, New York, New York
10286, Attention of: Kristen Talaber (Telephone No. (212) 635-8692; Telecopy No.
(212) 635-8593).
Section 10. TERMINATION
This Deposit Account Control Agreement shall remain in effect
until the earlier of (a) receipt by the Depository Institution of written notice
from the Agent in substantially the form of the Exhibit hereto (a "NOTICE OF
TERMINATION") or (b) delivery by the Depository Institution of all of the
Collateral to the Agent by crediting such Collateral to an account in the name
of the Agent, or as otherwise agreed to in writing by the Agent and the
Depository Institution. The rights and powers granted to the Agent in this
Deposit Account Control Agreement are powers coupled with an interest and will
not be affected by the insolvency or bankruptcy of the Depositor nor by the
lapse of time.
Section 11. CHOICE OF LAW
This Deposit Account Control Agreement and the Deposit Account
shall be governed by, and construed in accordance with, the laws of the State of
New York. Regardless of any other provision in any other agreement, for purposes
of the Uniform Commercial Code, the State of New York shall be deemed to be the
Depository Institution's jurisdiction (within the meaning of Section 9-304 of
the Uniform Commercial Code as in effect from time to time (including any
successor thereto) in the State of New York), and the Deposit Account shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to its conflicts of law provisions (other than Section
5-1401 and Section 5-1402 of the New York General Obligation Law as in effect
from time to time (including any successor thereto)).
Section 12. COUNTERPARTS
This Deposit Account Control Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which, when taken together,
shall constitute but one contract. Delivery of an executed counterpart of this
Deposit Account Control Agreement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Deposit Account
Control Agreement.
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Section 13. WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS DEPOSIT
ACCOUNT CONTROL AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS DEPOSIT ACCOUNT CONTROL
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 14. Miscellaneous
(a) This Deposit Account Control Agreement does not create
any obligation or duty of the Depository Institution other than those expressly
set forth herein.
(b) No amendment, supplement or other modification of this
Deposit Account Control Agreement, or any waiver of any right hereunder, shall
be binding on any party to this Deposit Account Control Agreement, unless it is
in writing and signed by each of the parties to this Deposit Account Control
Agreement.
(c) Section headings have been inserted in this Deposit
Account Control Agreement for convenience only and shall not affect the
construction of, or be taken into consideration in interpreting, this Deposit
Account Control Agreement.
(d) In the event any one or more of the provisions contained
in this Deposit Account Control Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
(e) The provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby.
(f) This Deposit Account Control Agreement and the exhibits
hereto constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Deposit
Account Control Agreement as of the date first above mentioned.
_____________________________, as Depositor
By:________________________________________
Name:______________________________________
Title:_____________________________________
____________________________, as Depository
Institution
By:
Name:
Title:
THE BANK OF NEW YORK, as Agent
By:
Name:
Title:
EXHIBIT A
TO DEPOSIT ACCOUNT CONTROL AGREEMENT
[LETTERHEAD OF THE BANK OF NEW YORK]
[DATE]
[NAME AND ADDRESS OF DEPOSITORY INSTITUTION]
Re: NOTICE OF EXCLUSIVE CONTROL
Ladies/Gentlemen:
Reference is made to the Deposit Account Control Agreement (as amended,
supplemented or otherwise modified from time to time, the "DEPOSIT ACCOUNT
CONTROL AGREEMENT"), dated as of ________________________, among (the
"DEPOSITOR"), _________________________ (the "DEPOSITORY INSTITUTION" or
"YOU"), and The Bank of New York, as agent (the "AGENT"). Capitalized terms
used herein and not defined herein, shall have the meanings assigned to
such terms in the Deposit Account Control Agreement.
We hereby give you notice of our exclusive control over the Deposit
Account and all financial assets credited thereto. You are hereby instructed not
to accept any direction, instructions or entitlement orders with respect to the
Deposit Account or the financial assets credited thereto from any person other
than the undersigned, unless otherwise ordered by a court of competent
jurisdiction.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Depositor.
Very truly yours,
THE BANK OF NEW YORK, as Agent
By:_____________________________
Name:___________________________
Title:__________________________
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EXHIBIT B
TO DEPOSIT ACCOUNT CONTROL AGREEMENT
[LETTERHEAD OF THE BANK OF NEW YORK]
[DATE]
[NAME AND ADDRESS OF DEPOSITORY INSTITUTION]
Re: TERMINATION OF DEPOSIT ACCOUNT CONTROL AGREEMENT
Ladies/Gentlemen:
Reference is made to the Deposit Account Control Agreement (as amended,
supplemented or otherwise modified from time to time, the "DEPOSIT ACCOUNT
CONTROL AGREEMENT"), dated as of ______________________, among ________________
(the "DEPOSITOR"), _________________________ (the "DEPOSITORY INSTITUTION" or
"YOU"), and The Bank of New York, as agent (the "AGENT"). Capitalized terms used
herein and not defined herein, shall have the meanings assigned to such terms
in the Deposit Account Control Agreement.
You are hereby notified that the Deposit Account Control Agreement is
terminated and you have no further obligations to the undersigned thereunder.
Notwithstanding any previous instructions to you, you are hereby instructed to
accept all future directions with respect to the Collateral from the Depositor.
This notice terminates any obligations you may have to the undersigned with
respect to the Collateral; however nothing contained in this notice shall alter
any obligations which you may otherwise owe to the Depositor pursuant to any
other agreement.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Depositor.
Very truly yours,
THE BANK OF NEW YORK, as Agent
By:_____________________________
Name:___________________________
Title:__________________________
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EXHIBIT C
TO SUPPLEMENTAL SECURITY AGREEMENT
FORM OF SECURITIES ACCOUNT CONTROL AGREEMENT
--------------------------------------------
SECURITIES ACCOUNT CONTROL AGREEMENT, dated as of ____________________
(as amended, supplemented or otherwise modified from time to time, this
"SECURITIES ACCOUNT CONTROL AGREEMENT"), among _________________________
(the "GRANTOR"), _________________________ , in its capacity (in such capacity,
the "SECURITIES INTERMEDIARY") as a "securities intermediary" within the
meaning of Section 8-102 of the Uniform Commercial Code as in effect from
time to time (including any successor thereto) in the State of New York, and
THE BANK OF NEW YORK, as agent for the benefit of certain secured parties
(the "AGENT").
RECITALS
--------
A. Pursuant to the terms and conditions of one or more security
agreements (as the same may from time to time be amended, restated or otherwise
modified, the "SECURITY AGREEMENT"), the Grantor granted to certain secured
parties represented herein by the Agent a security interest in and lien upon,
among other things, the Securities Account (as defined below) and all funds and
other property from time to time held in or credited to the Securities Account,
including, without limitation, all investment property and other financial
assets, all security entitlements with respect thereto, all cash balances and
all proceeds of each of the foregoing, whether now or hereafter existing or
arising (collectively, the "COLLATERAL").
B. The Grantor, the Agent and the Securities Intermediary are entering
into this Securities Account Control Agreement to perfect the above-mentioned
security interest in the Collateral.
Section 1. DEFINITIONS
As used herein, the terms "ENTITLEMENT HOLDER" "ENTITLEMENT
ORDER", "FINANCIAL ASSET", "INVESTMENT PROPERTY", "PROCEEDS", "SECURITIES
ACCOUNT" "SECURITY" and "SECURITY ENTITLEMENT" shall have the meanings set forth
in Articles 8 and 9 of the Uniform Commercial Code as in effect from time to
time in the State of New York.
Section 2. NOTICE AND ACKNOWLEDGMENT OF SECURITY INTEREST
The Grantor and the Agent hereby notify the Securities
Intermediary of, and the Securities Intermediary hereby acknowledges, the
security interest granted by the Grantor to the secured parties represented
herein by the Agent in all of the Grantor's right, title and interest in and to
the Collateral.
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Section 3. ESTABLISHMENT OF SECURITIES ACCOUNT
The Securities Intermediary hereby confirms and agrees that:
(a) The Securities Intermediary has established account
number _________________________ in the name of _________________________
(such account and any successor account, the "SECURITIES ACCOUNT"), and the
Securities Intermediary shall not close or change the name or account number
of the Securities Account without the prior written consent of the Agent.
(b) The Grantor irrevocably directs the Securities
Intermediary, and the Securities Intermediary agrees, to make all notations in
the Securities Intermediary's records pertaining to the Securities Account that
are necessary or appropriate to reflect the security interest of the secured
parties represented herein by the Agent in the Collateral and to designate the
Securities Account as _______________ Collateral Account for The Bank of New
York, as Agent".
(c) All securities or other property underlying any
financial assets credited to the Securities Account shall be registered in the
name of the Securities Intermediary, indorsed to the Securities Intermediary or
in blank or credited to another securities account maintained in the name of the
Securities Intermediary and in no case will any financial asset credited to the
Securities Account be registered in the name of the Grantor, payable to the
order of the Grantor or specially indorsed to the Grantor, except to the extent
the foregoing have been specially indorsed to the Securities Intermediary or in
blank.
(d) All property delivered to the Securities Intermediary
pursuant to the Security Agreement will be promptly credited to the Securities
Account.
(e) The Securities Account is a "securities account" within
the meaning of Section 8-501 of the Uniform Commercial Code as in effect from
time to time (including any successor thereto) in the State of New York.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE SECURITIES
INTERMEDIARY
The Securities Intermediary hereby makes the following
representations, warranties and covenants:
(a) The Securities Account has been established as set forth
in Section 3 above, and such Securities Account will be maintained in the manner
set forth herein until termination of this Securities Account Control Agreement.
(b) This Securities Account Control Agreement is the valid
and legally binding obligation of the Securities Intermediary.
(c) On the date of this Securities Account Control Agreement
and, except as provided in Section 9 hereof, the Securities Intermediary does
not know of any claim to or interest in the Collateral or the Securities
Account, other than the interests of the Grantor and the Agent (for the
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benefit of certain secured parties), and has not identified in its records any
other person as an entitlement holder with respect to the Collateral or the
Securities Account.
Section 5. FINANCIAL ASSET ELECTION
The Securities Intermediary hereby agrees that each item of
property (including, without limitation, any investment property, financial
asset, security, instrument, general intangible or cash) credited to the
Securities Account shall be treated as a "financial asset" within the meaning of
Section 8-102(a)(9) of the Uniform Commercial Code as in effect from time to
time (including any successor thereto) in the State of New York.
Section 6. CONTROL OF THE SECURITIES ACCOUNT
(a) Subject to the provisions of this Securities Account
Control Agreement, the Securities Account shall be under the "control" (with the
meaning of Article 9 of the Uniform Commercial Code as in effect from time to
time in the State of New York) of the Agent and the Agent shall have the sole
right to make or permit withdrawals from the Securities Account and to exercise
all rights with respect thereto from time to time as set forth in this
Securities Account Control Agreement.
(b) The Grantor irrevocably authorizes and directs the
Securities Intermediary, and the Securities Intermediary agrees, to comply with
any instructions, including, without limitation, entitlement orders, originated
by the Agent and received by the Securities Intermediary in writing from the
Agent, without further notice to, or consent from, the Grantor, at any time by
delivering a notice to the Securities Intermediary in substantially the form set
forth in Exhibit A hereto (a "NOTICE OF EXCLUSIVE CONTROL").
(c) Prior to the date on which a Notice of Exclusive Control
is received by the Securities Intermediary from the Agent, the Agent agrees
that:
(i) the Grantor may direct the Securities Intermediary
with respect to the voting of any financial assets held in or credited to the
Securities Account; and
(ii) the Securities Intermediary may accept instructions
with respect to the Collateral, including, without limitation, entitlement
orders, originated by the Grantor.
(d) Upon receipt by the Securities Intermediary of a Notice
of Exclusive Control from the Agent:
(i) the Grantor directs the Securities Intermediary, and
the Securities Intermediary agrees, to take all instructions with respect to the
Collateral solely from or originated by the Agent; and
(ii) the Securities Intermediary shall cease to accept
any and all instructions with respect to the Collateral, including, without
limitation, entitlement orders from the
6
Grantor or any other person (other than the Agent) and shall accept all such
instructions only from the Agent.
Section 7. MAINTENANCE OF SECURITIES ACCOUNT
In addition to, and not in lieu of, the obligation of the
Securities Intermediary to honor entitlement orders as agreed in Section 6
hereof, the Securities Intermediary agrees to maintain the Securities Account as
follows:
(a) PERMITTED INVESTMENTS. Until such time as the Securities
Intermediary receives a Notice of Exclusive Control signed by the Agent, the
Grantor shall direct the Securities Intermediary with respect to the selection
of investments to be made for the Securities Account.
(b) STATEMENTS AND CONFIRMATIONS. The Securities
Intermediary will promptly send copies of all statements, confirmations and
other correspondence concerning the Securities Account and/or any financial
assets credited thereto simultaneously to each of the Grantor and the Agent at
the address for each set forth in Section 11 hereof.
(c) TAX REPORTING. All items of income, gain, expense and
loss recognized in the Securities Account shall be reported to the Internal
Revenue Service and all state and local taxing authorities under the name and
taxpayer identification number of the Grantor.
Section 8. OTHER AGREEMENTS
(a) Except as otherwise provided in Section 9 hereof, the
Grantor and the Securities Intermediary agree not to enter into any agreement
with any other person (except for the secured parties represented herein by the
Agent) relating to any of the Collateral pursuant to which such person is
identified in the records of the Securities Intermediary as a person having a
security entitlement against the Securities Intermediary with respect to any of
the Collateral.
(b) Except as otherwise provided in Section 8 hereof, the
Securities Intermediary will not advance any credit secured by any of the
Collateral, directly or indirectly, to the Grantor.
(c) All charges, fees and expenses of the Securities
Intermediary incurred in connection with the performance of its duties hereunder
and the maintenance and operation of the Securities Account shall be for the
account of the Grantor and the Agent shall not be responsible or liable
therefor.
Section 9. SUBORDINATION OF LIEN; WAIVER OF SET-OFF
To the extent that the Securities Intermediary has or may have
in the future any security interest in or lien on any of the Collateral, the
Securities Intermediary subordinates such security interest and lien to the
security interest of the secured parties represented herein by the Agent, except
that the Securities Intermediary may retain its lien on the Collateral to secure
(a) advances made by the
7
Securities Intermediary in connection with the advance posting of dividends,
interest and other distributions, the crediting of any checks that are
subsequently returned unpaid because of uncollected or insufficient funds and
other advances made by the Grantor as part of its cash management services, all
in the ordinary course of business, (b) advances made in connection with the
settlement of securities transactions and (c) normal commissions and fees for
the Securities Account. Except as provided in the preceding sentence, the
Securities Intermediary waives any lien, security interest, right of set-off or
deduction or banker's lien which it may have in or on the Collateral.
Section 10. LIMITATION OF LIABILITY; INDEMNIFICATION
(a) The Securities Intermediary shall not be liable for any
loss or injury resulting from its actions or its performance or lack of
performance of its duties hereunder or for its investment decisions in the
absence of gross negligence or willful misconduct on its part. In no event shall
the Securities Intermediary be liable for (i) acting in accordance with
instructions from the Grantor or, after the delivery of a Notice of Exclusive
Control, the Agent, (ii) special, consequential or punitive damages, (iii)
losses due to forces beyond the control of the Securities Intermediary or any
subcustodian, including, without limitation, strikes, work stoppages, acts of
war or terrorism, insurrection, revolution, nuclear or natural catastrophes or
acts of God, the insolvency of any subcustodian or depository, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services, or (iv) the acts of omissions of its agents or
subcustodians so long as the selection of such agents or subcustodians was not
grossly negligent or an act of willful misconduct.
(b) The Grantor hereby agrees to indemnify and hold harmless
the Securities Intermediary against any claims, liabilities, expenses or losses
in any way arising out of or related to this Securities Account Control
Agreement (including reasonable attorneys' fees and disbursements), except to
the extent that the claims, liabilities, expenses or losses are caused by the
gross negligence or willful misconduct of the Securities Intermediary. The
provisions of this Section shall survive the termination of this Securities
Account Control Agreement.
Section 11. NOTICES
Any notice, request or other communication required or permitted
to be given under this Deposit Account Control Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
facsimile or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the following address (any party may change its address in the manner
set forth in this Section):
(a) if to the Grantor, to it at __________________,
Attention of ________________ (Telephone No. (___)___-____; Telecopy No.
(___)___-____;
(b) if to the Securities Intermediary, to it at
________________, Attention of: _______________ (Telephone No. (___)___-_____;
Facsimile No. (___)___-____); and
8
(c) if to the Agent, to it at One Wall Street, New York, New
York 10286, Attention of: Renee Dudley, Agency Function Administration
(Telephone No. (212) 635-4975; Facsimile No. (212) 635-6365 or 6366 or 6367),
with a copy to The Bank of New York, at One Wall Street, New York, New York
10286, Attention of: Kristen Talaber (Telephone No. (212) 635-8692;
Telecopy No. (212) 635-8593).
Section 12. TERMINATION
This Securities Account Control Agreement shall remain in effect
until the earlier of (a) receipt by the Securities Intermediary of written
notice from the Agent in substantially the form of Exhibit B hereto (a "NOTICE
OF TERMINATION"), or (b) delivery by the Securities Intermediary of all of the
Collateral to the Agent by crediting such Collateral to an account in the name
of the Agent, or as otherwise agreed to in writing by the Agent and the
Securities Intermediary. The rights and powers granted to the Agent in this
Securities Account Control Agreement are powers coupled with an interest and
will not be affected by the insolvency or bankruptcy of the Grantor nor by the
lapse of time.
Section 13. CHOICE OF LAW
This Securities Account Control Agreement and the Securities
Account shall be governed by, and construed in accordance with, the laws of the
State of New York. Regardless of any other provision in any other agreement, for
purposes of the Uniform Commercial Code, the State of New York shall be deemed
to be the Securities Intermediary's jurisdiction (within the meaning of Section
8-110 of the Uniform Commercial Code as in effect from time to time (including
any successor thereto) in the State of New York), and the Securities Account (as
well as the security entitlements related thereto) shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to its conflicts of law provisions (other than Section 5-1401 and Section 5-1402
of the New York General Obligation Law as in effect from time to time (including
any successor thereto)).
Section 14. COUNTERPARTS
This Securities Account Control Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which, when taken together,
shall constitute but one contract. Delivery of an executed counterpart of this
Securities Account Control Agreement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Securities
Account Control Agreement.
Section 15. WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
SECURITIES ACCOUNT CONTROL AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF
9
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS SECURITIES ACCOUNT CONTROL AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 16. MISCELLANEOUS
(a) This Securities Account Control Agreement does not
create any obligation or duty of the Securities Intermediary other than those
expressly set forth herein.
(b) No amendment, supplement or modification of this
Securities Account Control Agreement, or any waiver of any right hereunder,
shall be binding on any party to this Securities Account Control Agreement
unless it is in writing and signed by each of the parties to this Securities
Account Control Agreement.
(c) Section headings have been inserted in this Securities
Account Control Agreement for convenience only and shall not affect the
construction of, or be taken into consideration in interpreting, this Securities
Account Control Agreement.
(d) In the event any one or more of the provisions contained
in this Securities Account Control Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
(e) The provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby.
(f) This Securities Account Control Agreement and the
exhibits hereto constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
PENTON MEDIA, INC.
------------------
SECURITIES ACCOUNT CONTROL AGREEMENT
------------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Securities
Account Securities Account Control Agreement as of the date first above
mentioned.
, as Grantor
-------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
, as Securities Intermediary
-------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
, as Agent
-------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT A
TO SECURITIES ACCOUNT CONTROL AGREEMENT
[LETTERHEAD OF THE BANK OF NEW YORK]
[DATE]
[NAME AND ADDRESS OF SECURITIES INTERMEDIARY]
Re: NOTICE OF EXCLUSIVE CONTROL
Ladies/Gentlemen:
Reference is made to the Securities Account Control Agreement (as
amended, supplemented or otherwise modified from time to time, the "SECURITIES
ACCOUNT CONTROL AGREEMENT"), dated as of ___________________, among
_____________ (the "Grantor"), _____________ (the "SECURITIES INTERMEDIARY" or
"YOU"), and The Bank of New York, as agent (the "AGENT"). Capitalized terms used
herein and not defined herein, shall have the meanings assigned to such terms in
the Securities Account Control Agreement.
We hereby give you notice of our exclusive control over the Securities
Account and all financial assets credited thereto. You are hereby instructed not
to accept any direction, instructions or entitlement orders with respect to the
Securities Account or the financial assets credited thereto from any person
other than the undersigned, unless otherwise ordered by a court of competent
jurisdiction.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Grantor.
Very truly yours,
THE BANK OF NEW YORK, as Agent
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT B
TO SECURITIES ACCOUNT CONTROL AGREEMENT
[LETTERHEAD OF THE BANK OF NEW YORK]
[DATE]
[NAME AND ADDRESS OF SECURITIES INTERMEDIARY]
Re: NOTICE OF TERMINATION OF SECURITIES ACCOUNT CONTROL AGREEMENT
Ladies/Gentlemen:
Reference is made to the Securities Account Control Agreement (as
amended, supplemented or otherwise modified from time to time, the "SECURITIES
ACCOUNT CONTROL AGREEMENT"), dated as of _________________________, among
_________________________ (the "GRANTOR"), _________________________ (the
"SECURITIES INTERMEDIARY" or "YOU"), and The Bank of New York, as agent (the
"AGENT"). Capitalized terms used herein and not defined herein, shall have the
meanings assigned to such terms in the Securities Account Control Agreement.
You are hereby notified that the Securities Account Control Agreement is
terminated and you have no further obligations to the undersigned thereunder.
Notwithstanding any previous instructions to you, you are hereby instructed to
accept all future directions with respect to the Collateral from the Grantor.
This notice terminates any obligations you may have to the undersigned with
respect to the Collateral, however nothing contained in this notice shall alter
any obligations which you may otherwise owe to the Grantor pursuant to any other
agreement.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Grantor.
Very truly yours,
THE BANK OF NEW YORK, as Agent
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
SCHEDULE 4.5
REAL PROPERTY
ENTITY LOCATION OWNED/LEASED COUNTY
U.S. LOCATIONS
PENTON MEDIA, INC. 1300 E. 9(th) Street Leased Cuyahoga
Chief Executive Office Cleveland, OH 44114
1300 E. 9(th) Street
Cleveland, Ohio 44114
611 Route 46 West Leased Bergen
Hasbrouck Heights, NJ 07604
1401 Pearl St., Suite 200 Leased Boulder
Boulder, CO 80302
47817 Fremont Blvd. Leased Alameda
Fremont, CA 94538
100 E. Chicago Street, Suite Leased Kane
1001
Elgin, IL 60120
77-734 Country Club Dr., Leased Riverside
Suite A-2
Palm Desert, CA 92211
Saddlebrook Resort Owned Pasco
5700 Saddlebrook Way
Wesley Chapel, FL 33543
BOARDWATCH, INCORPORATED None.
Chief Executive Office
1300 E. 9(th) Street
Cleveland, OH 44114
DONOHUE MEEHAN 2700 River Road Leased Cook
PUBLISHING COMPANY Des Plaines, IL 60018
Chief Executive Office
2700 River Road
Des Plaines, IL 60018
Two Greenwood Square Leased Bucks
3331 Street Road
Bensalem, PA 19020
1
ENTITY LOCATION OWNED/LEASED COUNTY
2063 Oak Street Leased Duval
Jacksonville, FL 32204
DUKE COMMUNICATIONS 221 E. 29(th) Street Leased Larimer
INTERNATIONAL, INC. Loveland, CO 80538
Chief Executive Office
221 E. 29(th) Street
Loveland, CO 80538
249A & 240B E. 29(th) Street Leased Larimer
Loveland, CO 80538
1310 E. 11(th) Street Leased Larimer
Loveland, CO 80537
150(th) E. 29(th) Street Leased Larimer
Suite 238 & 270
Loveland, CO 80537
6 Caspian Road Leased Wales
Altrincham
Cheshire, WA 145HH
U.K.
DUKE INVESTMENTS, INC. None.
Chief Executive Office
221 E. 29(th) Street
Loveland, CO 80538
HEALTHWELL.COM, INC. None.
Chief Executive Office
1401 Pearl Street, Suite 200
Boulder, CO 80302
INTERNET WORLD MEDIA, INC. 16 Thorndal Circle Leased Fairfield
Chief Executive Office Darien, CT 06820
16 Thorndal Circle
Darien, CT 06820
ONE, INC. None.
Chief Executive Office
1300 E. 9(th) Street
Cleveland, OH 44114
2
ENTITY LOCATION OWNED/LEASED COUNTY
PTS DELAWARE, INC. None.
Chief Executive Office
1300 E. 9(th) Street
Cleveland, OH 44114
PENTON INTERNET, INC. None.
Chief Executive Office
1300 E. 9(th) Street
Cleveland, OH 44114
STARDUST.COM None.
Chief Executive Office
1300 E. 9(th) Street
Cleveland, OH 44114
STREAMING MEDIA, INC. 710 Florida Street; Suite 200 Leased San
Chief Executive Office San Francisco, CA 94110 Francisco
710 Florida Street; Suite 200
San Francisco, CA 94110
TECH CONFERENCES, Unit C-3 Leased Fairfield
INCORPORATED 731 Main Street
Chief Executive Office Monroe, CT 06468
Unit C-3
731 Main Street
Monroe, CT 06468
3
SCHEDULE 4.6
DISCLOSED MATTERS
Environmental Matters:
None.
Litigation:
1. ALIDENA V. PENTON MEDIA, INC., ET AL. Class action lawsuit filed
December 2, 1998 against the Borrower and Internet World Media, Inc. on behalf
of shareholders of Mecklermedia Corporation alleging securities law violations
in the Borrower's tender offer for shares of Mecklermedia Corporation. In
January 2000 the class certification was denied. Plaintiffs filed a petition for
interlocutory review of the denial of class certification. The District Court
entered an order certifying the class. The District Court denied the Borrower's
motion for summary judgment.
2. JOSEPH STEPIC V. PENTON MEDIA, INC. - On August 3, 1999, a Cuyahoga
County, Ohio, common pleas jury returned a verdict against the Borrower in a
lawsuit where the plaintiff claimed sexual harassment and retaliation. The jury
awarded the plaintiff $854,500. On appeal, that verdict was reversed, judgment
was entered for the Borrower on several claims and the balance of the case was
remanded to the trial court for further processing. Subsequently, the Ohio
Supreme Court declined to hear the case. The trial court has not yet indicated
its intentions with regard to the balance of the case.
4
SCHEDULE 4.12
SUBSIDIARIES
COMPANY OR SUBSIDIARY NAME JURISDICTION AND NUMBER OF SHARES PERCENT OF OUTSTANDING
DATE OF OUTSTANDING (ALL COMMON STOCK / EQUITY OWNED
ORGANIZATION UNLESS OTHERWISE NOTED)
Penton Media, Inc. ("Penton U.S.") Delaware 6/28/1976 31,935,807(1) Publicly held
1) Donohue Meehan Publishing Illinois 5/11/1998 1,000 (CERTIF. NO. 1) 100% by Penton U.S.
Company
2) Internet World Media, Inc. Delaware 12/10/1993 100 (CERTIF. NO. 1) 100% by Penton U.S.
("Internet World Media")
a) Penton Business Media England 1/23/1987 100 (CERTIF. NO. 5(a) FOR 65; 100% by Internet World
London Limited certif. No. 3 for 35) Media
b) One, Inc. Colorado 10/25/1991 100 (CERTIF. NO. 2) 100% by Internet World
Media
c) Boardwatch, Incorporated Colorado 2/2/1995 100 (CERTIF. NO. 2) 100% by Internet World
Media
d) Penton Internet, Inc. Delaware 6/20/2000 100 (CERTIF. NO. 2) 100% by Internet World
Media
i) Leisurehub.com Ltd.(2) England & Wales 331,505 Penton Internet, Inc. owns
9/9/1999 75,919 B Preferred Shares
(Consisting of 50,000 A (approx. 22.9% of total)
Ordinary Shares, 148,807
Ordinary Shares and
132,698 B Preferred Shares)
ii) Cayenta, Inc.(3) Delaware 12/10/1999 850,708 (CERTIF. NO. CA-28 Penton Internet, Inc. owns
FOR 250,000) 250,000 shares (approx.
15%)
3) Penton Media Australia Pty. New South Wales, 20 (CERTIF. NO. 3 FOR 13 100% by Penton U.S.
Limited(4) Australia ordinary shares; certif. No.
12/12/2000 4 for 7 ordinary shares)
(Co. no. 358802)
4) New Hope International Media England 5/7/1998 100 (CERTIF. NO. 6(a) FOR 65; 100% by Penton U.S.
Limited(5) certif. No. 6 for 35)
- ----------------------------
(1) As of February 8, 2002, per the records of Computer Share Investor
Services, Penton Media Inc.'s transfer agent.
(2) In the process of being liquidated.
(3) Registered Office: 11 S 12(th) Street, Richmond Virginia 23219
(4) Registered Office: Level 2, 157 Walker Street, North Sydney, NSW 2060,
Australia
(5) Registered Office: 288-290 Worton Road, Isleworth, Middlesex, TW7 6EE,
England
5
COMPANY OR SUBSIDIARY NAME JURISDICTION AND NUMBER OF SHARES PERCENT OF OUTSTANDING
DATE OF OUTSTANDING (ALL COMMON STOCK / EQUITY OWNED
ORGANIZATION UNLESS OTHERWISE NOTED)
5) Penton Media (Holdings) Limited England 11/12/1997 100 (CERTIF. NO. 4 FOR 65; 100% by Penton U.S.
("Penton U.K.")(6) certif. Nos. 1, 2 totaling 35)
a) Equity Information Exchange England 4/16/1987 1,026 100% by Penton U.K.
Limited(7)
b) Penton Media (Europe) England 4/12/1984 1,052 100% by Penton U.K.
Limited ("Penton Europe")(8) (Co. no. 1808131)
i) Hillgate Communications England 2/15/1993 107,942 100% by Penton Europe
Limited ("Hillgate (Co. no. 2790021) (Consisting of 33,340 'A'
Communications")(9) Ordinary Shares and
74,602 'B' Ordinary Shares)
1) Hillgate Custom England 2/22/2000 1 100% by Hillgate
Publishing Limited(10) (Co. no. 3930729) Communications
ii) Conarch I.T. Limited(11) England 5/19/99 100 100% by Penton Europe
iii) Penton Media England & Wales 100 100% by Penton Europe
International Limited(12) 2/8/01
1) Penton Media Spain Spain 100 100% by Penton Media
SA(13) N/A International
iv) Lightspeed Integrated England & Wales 1,000 100% by Penton Europe
Media Limited(14) 3/23/01
v) Service Management England & Wales 100 100% by Penton Europe
Publications Limited(15) 11/25/87
c) Service Exhibitions Limited(16) England 6/12/1986 1,000 100% by Penton U.K.
d) Penton Media Ireland, Ireland 10/19/99 100 100% by Penton U.K.
Limited(17)
6) Stardust.com California 6/6/1995 2,352,941 (CERTIF. NO. 7) 100% by Penton U.S.
(6) Registered Office: 288-290 Worton Road, Isleworth, Middlesex, TW7 6EE,
England
(7) Registered Office: 288-290 Worton Road, Isleworth, Middlesex, TW7 6EE,
England
(8) Registered Office: Penton House, 288-290 Worton Road, Isleworth, Middlesex,
TW7 6EE, England
(9) Registered Office: 61 Southwark Street, London SE1 0HL, England
(10) Registered Office: 61 Southwark Street, London SE1 0HL, England
(11) Registered Office: 288-290 Worton Road, Isleworth, Middlesex, TW7 6EE,
England
(12) Registered Office: 288-290 Worton Road, Isleworth, Middlesex, TW7 6EE,
England
(13) Location: Fernandez de la Hoz 33, 4-izda 28010
(14) Registered Office: 288-290 Worton Road, Isleworth, Middlesex, TW7 6EE,
England
(15) Registered Office: 288-290 Worton Road, Isleworth, Middlesex, TW7 6EE,
England
(16) Registered Office: 288-290 Worton Road, Isleworth, Middlesex, TW7 6EE,
England
(17) Registered Office: Moira House, 14-15 Trinity Street, Dublin 2, Ireland
6
COMPANY OR SUBSIDIARY NAME JURISDICTION AND NUMBER OF SHARES PERCENT OF OUTSTANDING
DATE OF OUTSTANDING (ALL COMMON STOCK / EQUITY OWNED
ORGANIZATION UNLESS OTHERWISE NOTED)
7) Streaming Media, Inc. California 3/25/1998 278,378.80 (CERTIF. NO. 1) 100% by Penton U.S.
8) Duke Investments, Inc. Colorado 9/23/1983 982.5 (CERTIF. NO. 3) 100% by Penton U.S.
("Duke") 982.5 (CERTIF. NO. 3NV)
a) Duke Communications Colorado 9/25/1996 100 (CERTIF. NO. 1) 100% by Duke
International, Inc. ("DCI")
i) Duke Communications England 3/31/1993 20 (CERTIF. NO. 4 FOR 13; 100% by DCI
Europe Limited(18) (Co. no. 2805376) certif. No. 5 for 7)
9) PTS Delaware, Inc. Delaware 8/21/2000 100 (CERTIF. NO. 3) 100% by Penton U.S.
10) Tech Conferences, Incorporated Connecticut 7/8/1994 10 (CERTIF. NO. 2) 100% by Penton U.S.
11) Healthwell.com, Inc. Delaware 3/13/2000 100 (CERTIF. NO. 1) 100% by Penton U.S.
12) ComMunic GmbH Kongresse- Munich, Bavaria, 4 Equity Interests 50% by Penton U.S.(21)
Messen Seminare(19) Germany 12/23/88 (uncertificated)
(Co. no. HRB
132771)(20)
13) Penton Media, S. de R.L. Neuvo Leon, Mexico 2 Equity Quotas 1 Equity Quota by Penton
de C.V.(22) 1/29/1997 (uncertificated - U.S. (99%);
65% PLEDGED)
1 Equity Quota by Internet
World Media (1%)
14) Penton Media France SAS(23) France 1,275 A Shares 50% by Penton U.S.
1,225 B Shares(24)
15) Penton Media Asia Limited(25) Hong Kong 10,000 65% (6,500 shares) by
10/13/2000 (CERTIF. NO. 3 FOR 6,500, Penton U.S. and 35% (3,500
(Co. no. 734118) certif. No. 4 for 3,500) shares) by Internet World
Media
(*) Equity interest pledged to the Administrative Agent is indicated in bold;
entities 1, 2, 2(b)-2(d), 6-8, 8(a), 9-11 are Subsidiary Guarantors.
(18) Registered Office: 6 Atlantic Office Park, Caspian Road, Altrinchaum,
Cheshire WA 145HH, England
(19) Registered Office: Konrod - Celtis - Strasse 77, 81369 Munich, Germany
(20) On September 6, 2000, ComMunic moved its registered office from Ulm to
Munich. Prior to this move, ComMunic was registered in Ulm, Baden
Wurttemberg, Germany under the company number HRB2109.
(21) Ms. Michaela Voltenauer owns two equity interests each in the amount of DEM
12,200.00; Neue Mediengesellschaft Ulm GmbH owns one equity interest in the
amount of DEM 25,600.00; and Penton U.S. owns one equity interest in the
amount of DEM 50,000.00
(22) Registered Office: 501 Fundidora Avenue, Cintermex Building, Establishment
45-55, Monterey, Nuevo L on 64010, Mexico.
(23) Registered Office: 204 Rond Point du Pont de Sevres, 92100 Boulogne
Billancourt
(24) Le Cercle Rouge SA is the B Shareholder
(25) Registered Office: 7(th) Floor, No. 9 Des Voeux Road West, Hong Kong, China
7
SCHEDULE 4.13
INSURANCE
[SEE ATTACHED]
8
PENTON MEDIA, INC.
INSURANCE INFORMATION
POLICY POLICY
PERIOD CARRIER NUMBER COVERAGE LIMITS
- ------ ------- ------ -------- ------
08/07/01 - Federal Insurance 35783335 General Liability / Bodily Injury & Property Damage:
08/07/02 Trade Shows - Each Occurrence $ 1,000,000
- Aggregate $ 2,000,000
Products/Completed Operations $ 2,000,000
Personal & Advertising Injury Nil
Fire Damage (any one fire) $ 1,000,000
Non-Owned Aircraft $ 1,000,000
Medical Expenses (any one person) $ 10,000
Ohio Stop-Gap $ 1,000,000
Employee Benefits Aggregate $ 1,000,000
- Deductible $ 1,000
Liquor Liability $ 1,000,000
- Deductible $ 1,000
08/07/01 - Affiliated FM ME 21 Property Property Damage & Business Income $ 1,47,461,325
08/07/02 Insurance Trade Show Contingent BI Domestic $ 5,000,000
- Foreign / Refer to Countries Excluded $ 1,000,000
Flood (excludes Zone A) $ 50,000,000
Earthquake (excl. AK, CA, PR, HI) $ 50,000,000
Deductible $ 25,000
except Transit $ 5,000
9
POLICY POLICY
PERIOD CARRIER NUMBER COVERAGE LIMITS
------ ------- ------ -------- --------
08/07/01 - Federal Insurance 73513954 Commercial Auto PD & BI - Combined Single Limit $ 1,000,000
08/07/02 UM/UIM Rejected
Non-Owned Hired Auto
Hired Car Physical Damage $ 50,000
Rental - $75 per day / 30 days
Towing $ 50
Deductible - Comprehensive $ 500
Deductible - Collision $ 500
08/07/01 - Federal Insurance 71704084 Workers' Comp Coverage A Statutory
08/07/02 Employers Liability Coverages:
- Each Accident $ 1,000,000
- Disease - Policy Limit $ 1,000,000
- Disease - Each Employee $ 1,000,000
10
POLICY POLICY
PERIOD CARRIER NUMBER COVERAGE LIMITS
------ ------- ------ -------- --------
08/07/01 - Great Northern 73503133 Foreign INTERNATIONAL PROPERTY:
08/07/02 DIC / DIL Australian Admitted
Personal Property $ 1,680,000
EDP $ 1,480,000
BI/EE $ 50,000
Elsewhere
Personal Property $ 250,000
Newly Acquired Building $ 250,000
Business Income $ 50,000
Transit $ 100,000
Business Income in Transit $ 10,000
Accounts Receivable $ 25,000
Electronic Data Processing Equip. $ 25,000
Electronic Data Processing Media $ 25,000
Fine Arts $ 25,000
Leasehold Interest $ 50,000
Valuable Papers $ 25,000
Neighbor's and Tenant's Liability $ 2,500,000
Off Premises Power, Water or $ 10,000
Communications
Facilities (excludes Overhead
Transmission Lines)
Deductible: $1,000
24-Hour Off Premises Power,
Water or Communications Facilities
11
POLICY POLICY
PERIOD CARRIER NUMBER COVERAGE LIMITS
- ------ ------- ------ -------- --------
INTERNATIONAL GENERAL LIABILITY:
- Each Occurrence $ 1,000,000
- Personal & Advertising Injury Nil
- Products/Completed Operations $ 1,000,000
Aggregate $ 1,000,000
- Property Damage to Rented or Occupied
Premises $ 1,000,000
- Employee Benefits Aggregate - Claims
Made $ 250,000
- Employment-Related Practices Liab.
Aggregate - outside the US only $ 250,000
- Medical Payment $ 10,000
- Threshold Amount Benefits $ 10,000
INTERNATIONAL VOLUNTARY WORKERS'
COMPENSATION:
Foreign Voluntary WC
- International Executive Employees State of Hire Benefits
- Other International Employees Country of Origin Benefits
Employer's Liability:
- Bodily Injury by Accident $ 1,000,000 each accident
- Bodily Injury by Disease $ 1,000,000 policy limit
- Bodily Injury by Disease $ 1,000,000 each employee
Repatriation $ 250,000 each employee
- $ 250,000 policy limit
12
POLICY POLICY
PERIOD CARRIER NUMBER COVERAGE LIMITS
------ ------- ------ -------- --------
INTERNATIONAL AUTOMOBILE:
Excess DIC/DIL - Local Compulsory
Liability must be Purchased
Owned, Hired & Non-Owned Autos:
- Excess Liability $ 1,000,000
- Medical Expenses, each person / each $ 10,000
accident
- Non-Owned Autos Physical Damage $ 2,500 occur.
$ 10,000 agg.
- Threshold Amount Benefit $ 10,000
INTERNATIONAL CRIME:
- Employee Dishonesty $ 5,000
- Depositor's Forgery $ 5,000
Deductible: $1,000 Dishonesty / $1,000 Forgery
BLANKET ACCIDENT:
- Per Accident $ 100,000
- Excess Medical Expense $ 10,000
Deductible: $100
Blanket Accident is excess of any coverage in place
Coverage Extensions include:
- 24-Hours Business and Pleasure
- Family Coverage
- Bomb Scare
- Hijacking / Skyjacking
POLITICAL RISK:
Salesman's Samples and Trade Fairs & $ 50,000
Exhibitions
13
POLICY POLICY
PERIOD CARRIER NUMBER COVERAGE LIMITS
- ------ ------- ------ -------- -------
08/07/01 - Hartford Casualty 45XSTQX0464 Ohio Excess Workers' Comp Limit Statutory
08/07/02 Insurance Workers' Comp SIR $ 150,000
08/07/01 - Federal Insurance 79769420 Umbrella Each Occurrence $ 50,000,000
08/07/02 Aggregate $ 50,000,000
08/07/01 - American Guarantee AEC2856648-01 Excess Umbrella Limit $ 25,000,000
08/07/02 (Zurich) xs $50,000,000
08/07/01 - National Casualty LS016009 Media Professional Media Special Perils Magazine
Publisher $ 5,000,000
08/07/02 Liability Coverage
- Retention $ 50,000
08/07/01 - Federal Insurance 81519285 Directors & Coinsurance -None $ 15,000,000
08/07/02 Officers Liability Deductible - Insuring
Clause 2 - $150,000
Outside Coinsurance - None $ 5,000,000
Directorship Deductible - Insuring
Clause 2 - $150,000
Fiduciary Liability $ 5,000,000
Crime Employee Theft Coverage $ 5,000,000
Premises Coverage $ 5,000,000
Transit Coverage $ 5,000,000
Depositor's Forgery Coverage $ 5,000,000
Computer Theft & Funds Transfer $ 5,000,000
Fraud Coverage
Deductible Amount $ 25,000
No Deductible shall apply to Employee
Benefit Plans
14
POLICY POLICY
PERIOD CARRIER NUMBER COVERAGE LIMITS
- ------ ------- ------ -------- -------
Kidnap/Ransom & Kidnap/Ransom & Extortion $ 5,000,000
Extortion Delivery Coverage $ 5,000,000
Expense Coverage $ 5,000,000
Legal Liability Coverage $ 5,000,000
Political Threat Coverage $ 5,000,000
Deductible Amount None
08/07/00 - The Hartford NDA0148482-00 Excess Directors & Aggregate, including claim expense. $ 10,000,000
08/07/01 Officers Underlying limit - $15,000,000 - Federal
Insurance Company
04/10/01 - Royal Insurance PSF 003076 Employment Employment Practices Violation - includes $ 5,000,000
04/10/02 Practices Liability Third-Party coverage
- Retention $ 100,000
15
SCHEDULE 7.1(a)
EXISTING INDEBTEDNESS
1. The obligations of Penton Media (Europe) Limited and Penton Media,
Inc., as Guarantors, under the long-term notes in the original amount of
$3,300,000 representing indebtedness resulting from the acquisition of Hillgate
in February 2001. Loan Note A in the amount of $2,900,000 bears interest at 1%
and matures April 2004. Loan Note B in the amount of $400,000 bears interest at
0.5% and matures July 2004.
2. Intercompany Loan from Penton Media, Inc. to Penton Media (Holdings)
Limited pursuant to an intercompany note dated November 24, 1998, the
outstanding principal balance of which as of the Restatement Date is $6,424,980.
3. Intercompany Loan from Penton Media, Inc. to Penton Media Australia
Pty. Limited, the outstanding principal balance of which as of the Restatement
Date is $3,492,546.
4. Intercompany Loan from Penton Media, Inc. to Penton Media Asia
Limited, the outstanding principal balance of which as of the Restatement Date
is $411,425.09.
16
SCHEDULE 7.1(b)
CONTINGENT OBLIGATIONS
The following Contingent Obligations exist with respect to previous
acquisitions:
- -----------------------------------------------------------------------------------------
CONTINGENT
ENTITY PAYMENT TOTALS EST. PAYMENT DATE
- -----------------------------------------------------------------------------------------
COMMUNIC(1)
Fiscal Year 2000 $2,867,935 F/Y 2000 - 3/15/02
Fiscal Year 2001 1,470,829 $4,338,764 F/Y 2001 - 6/30/02
NUTRITIONAL BUSINESS JOURNAL(2)
Fiscal Year 2001 300,000 300,000 F/Y 2001 - 3/15/02
NEW HOPE NATURAL MEDIA(3) F/Y 2001 - 3/15/02
Fiscal Year 2001 400,000 400,000
DUKE COMMUNICATIONS F/Y 2002 - 3/15/03
INTERNATIONAL, INC.(4)
Fiscal Year 2002 3,128,303 3,128,303
CONTINGENT PAYMENT TOTALS $ 8,167,067
____________________
1
Pursuant to the Participation Agreement by and among Neue
Mediengesellschaft Ulm mbH, Mrs. Michaela Voltenauer-Lagemann, Penton
Media, Inc., and ComMunic GmbH Kongresse-Messen-Seminare dated as of March
24, 2000.
2
Pursuant to the Asset Purchase Agreement by and between Nutrition Business
International, LLC and Penton Media, Inc., dated as of February 5, 2001
3
Pursuant to the Asset Purchase Agreement by and among New Hope
Communications, Inc., R. Douglas Greene and Penton Media, Inc., dated as of
May 18, 1999
4
Pursuant to the Equity Purchase Agreement by and among Penton Media, Inc.
and David A. Duke, The 1996 Sara Marie Duke Trust, The 1996 Brian Alexander
Duke Trust, and The 1996 John Franklin Duke Trust, dated as of August 29,
2000
17
SCHEDULE 7.2
EXISTING LIENS
- ------------------------------------------------------------------------------------------------------------------------------------
UCC FILING NO./
STATE JURISDICTION DEBTOR SECURED PARTY FILING DATE COLLATERAL
- ------------------------------------------------------------------------------------------------------------------------------------
DE State Penton Media, Inc. The CIT Group/Equipment File No: 20011600530 One (1) Fuji C550 Scanner
Financing, Inc. File Date: 11/5/01 One (1) Apple Power
PC G4+Lacie 19' Monitor
One (1) X-Rite Densitomer
and all additions,
substitutions, attachments,
replacements and accessions
thereof, plus the proceeds of
all the foregoing
- ------------------------------------------------------------------------------------------------------------------------------------
CA State Penton Media, Inc. Minolta Business Solutions File No: 0115860377 Equipment Lease
File Date: 06/01/01
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. Norwest Financial File No: AP0099378
Leasing Inc. File Date: 11/09/98 Equipment Lease
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. Norwest Financial Leasing, File No: AP0140036 Equipment Lease
Inc. File Date: 04/05/99
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. Norwest Financial File No: AP0145205
Leasing, Inc. File Date: 04/28/99 Equipment Lease
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. BCL Capital File No: AP0182666 Equipment Lease
File Date: 09/20/99
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. BCL Capital File No: AP284233 Equipment Lease
File Date: 09/18/00
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. Prime Source File No: AP289798
Corp. File Date: 10/02/00 Equipment Lease
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. Citicorp Vendor Finance, File No: AP298851 Equipment Lease
Inc. File Date: 12/07/00
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. BCL Capital File No: AP318342 Equipment Lease
File Date: 01/14/00
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. BCL Capital File No: AP324627 Equipment Lease
File Date: 02/12/01
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. BCL Capital File No: AP335146 Equipment Lease
File Date: 03/12/01
- ------------------------------------------------------------------------------------------------------------------------------------
18
- ------------------------------------------------------------------------------------------------------------------------------------
UCC FILING NO./
STATE JURISDICTION DEBTOR SECURED PARTY FILING DATE COLLATERAL
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Media, Inc. BCL Capital File No: AP331908 Equipment Lease
File Date: 03/19/01
OH State Penton Media, Inc. BCL Capital File No: AP331911 Equipment Lease
File Date: 03/19/01
OH Cuyahoga Penton Media, Inc. BCL Capital File No: 199909209115 Equipment Lease
County File Date: 09/20/99
OH Cuyahoga Penton Media, Inc. BCL Capital File No: 200009189137 Equipment Lease
County File Date: 09/18/00
OH Cuyahoga Penton Media, Inc. Citicorp Vendor Finance, File No: 200012089111 Equipment Lease
County Inc. File Date: 12/08/00
OH Cuyahoga Penton Media, Inc. BCL Capital File No: 200101169098 Equipment Lease
County File Date: 01/16/01
OH Cuyahoga Penton Media, Inc. BCL Capital File No: 200102139097 Equipment Lease
County File Date: 02/13/01
OH Cuyahoga Penton Media, Inc. BCL Capital File No: 200103139005 Equipment Lease
County File Date: 03/13/01
OH Cuyahoga Penton Media, Inc. BCL Capital File No: 200103199057 Equipment Lease
County File Date: 03/19/01
OH Cuyahoga Penton Media, Inc. BCL Capital File No: 200103199058 Equipment Lease
County File Date: 03/19/01
PA State Penton Media, Inc. BCL Capital File No: 33750867 Equipment Lease
File Date: 03/26/01
PA Chester Penton Media, Inc. BCL Capital File No: ST010821 Equipment Lease
County File Date: 03/28/01
NJ State Penton Media, Inc. Pittney Bowes Credit File No: 1962993 Equipment Lease
Corporation File Date: 03/21/00
19
- ------------------------------------------------------------------------------------------------------------------------------------
UCC FILING NO./
STATE JURISDICTION DEBTOR SECURED PARTY FILING DATE COLLATERAL
- ------------------------------------------------------------------------------------------------------------------------------------
NJ State Penton Media, Inc. Pittney Bowes Credit File No: 1967936 Equipment Lease
Corporation File Date: 04/13/00
- ------------------------------------------------------------------------------------------------------------------------------------
CO State Duke Minolta Business Systems File No: 20002000361 Minolta D1250 Copiers
Communications File Date: 1/4/00
International, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
CO State Duke Siemens Credit Corporation File No: 962023204 Equipment
Communications File Date: 3/27/96
International, Inc. UCC-3 changing name
filed on 2/13/01
UCC-2 continuation
filed on 12/22/97
- ------------------------------------------------------------------------------------------------------------------------------------
CO State Duke Finzer Leasing Company File No: 962090130 Equipment Lease
Communications File Date: 12/03/96
International, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
CA State Stardust Icon Funding Corp. File No.: 9716760360 Computer Equipment
Technologies, Inc. File Date: 06/11/97
- ------------------------------------------------------------------------------------------------------------------------------------
CA State Stardust Information Leasing File No.: 9716760368 Computer Equipment
Technologies, Inc. Corporation File Date: 06/11/97
- ------------------------------------------------------------------------------------------------------------------------------------
CA State Stardust Icon Funding Corp. File No.: 9830060676 Computer Equipment
Technologies, Inc. File Date: 10/20/98
- ------------------------------------------------------------------------------------------------------------------------------------
CA State Stardust Icon Funding Corp. File No.: 9830060685 Office Furniture
Technologies, Inc. File Date: 10/20/98 2 Toshiba 1020DSD,
3 Toshiba 1010DSD
- ------------------------------------------------------------------------------------------------------------------------------------
CA State Stardust GE Capital Business File No.: 9836360879 Computer Equipment
Technologies, Inc. Finance File Date: 12/22/98
- ------------------------------------------------------------------------------------------------------------------------------------
CA State Stardust GE Capital Business File No.: 9836360882 Computer Equipment
Technologies, Inc. Finance File Date: 12/22/98
- ------------------------------------------------------------------------------------------------------------------------------------
CA State Stardust Imperial Business Credit, File No.: 9902760671 Computer Equipment
Technologies, Inc. Inc. File Date: 01/21/99
- ------------------------------------------------------------------------------------------------------------------------------------
20
- ------------------------------------------------------------------------------------------------------------------------------------
UCC FILING NO./
STATE JURISDICTION DEBTOR SECURED PARTY FILING DATE COLLATERAL
- ------------------------------------------------------------------------------------------------------------------------------------
CA State Stardust GE Capital Business File No.: 9902860179 Computer Equipment
Technologies, Inc. Finance File Date: 01/21/99
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Publishing, Comdoc File No.: AO07080 Copier
Inc. File Date: 10/28/97
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Publishing, Pitney Bowes Credit File No.: AP0222224 Equipment Lease
Inc. Corporation File Date: 02/24/00
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Publishing, Pitney Bowes Credit File No.: AP0231597 Equipment Lease
Inc. Corporation File Date: 04/10/00
- ------------------------------------------------------------------------------------------------------------------------------------
OH State Penton Publishing, Comdoc File No.: AN66540 Copier
Inc. File Date: 05/20/97
- ------------------------------------------------------------------------------------------------------------------------------------
21
SCHEDULE 7.4
EXISTING INVESTMENTS
1. Intercompany Loan from Penton Media, Inc. to Penton Media (Holdings)
Limited pursuant to an intercompany note dated November 24, 1998, the
outstanding principal balance of which as of the Restatement Date is $6,424,980.
2. Intercompany Loan from Penton Media, Inc. to Penton Media Australia
Pty. Limited, the outstanding principal balance of which as of the Restatement
Date is $3,492,546.
3. Intercompany Loan from Penton Media, Inc. to Penton Media Asia
Limited, the outstanding principal balance of which as of the Restatement Date
is $411,425.09.
4. Loans made by Penton Media, Inc. to certain officers pursuant to the
Executive Loan Program described in Penton Media, Inc.'s 10k for the fiscal year
ended December 31, 2001, the aggregate principal balance of which as of the
Restatement Date is $10,820,000.
5. Equity investments existing as of the Restatement Date as listed on
Schedule 4.12.
22
SCHEDULE 7.10
EXISTING RESTRICTIONS
1. Indenture dated as of June 28, 2001, among Penton Media, Inc., as
Issuer, the Subsidiary Guarantors named therein, and The Bank of New York, as
Trustee.
23
PENTON SCHEDULE 2.1
REVOLVING COMMITMENTS(1)
------------------------
LENDER REVOLVING COMMITMENT
------ --------------------
THE BANK OF NEW YORK $ 5,333,682
BANK OF AMERICA, N.A $ 5,524,089
BANK ONE, NA $ 2,752,197
FLEET NATIONAL BANK $ 4,554,510
ALLFIRST BANK $ 1,589,825
BANK OF MONTREAL $ 1,192,369
CREDIT AGRICOLE INDOSUEZ $ 1,192,369
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES $ 3,261,601
THE HUNTINGTON NATIONAL BANK $ 1,227,345
NATIONAL BANK OF CANADA $ 1,019,888
NATIONAL CITY BANK $ 2,862,639
BNP PARIBAS $ 1,868,044
CITIZENS BANK OF MASSACHUSETTS $ 2,922,099
SUNTRUST BANK $ 2,139,725
VAN KAMPEN SENIOR INCOME TRUST $ 0
VAN KAMPEN SENIOR FLOATING RATE
FUND $ 0
VAN KAMPEN CLO I, LIMITED $ 0
VAN KAMPEN CLO II, LIMITED $ 0
KEY CORPORATE CAPITAL, INC $ 2,559,618
TOTAL: $40,000,000
- ----------------------
(1) After giving effect to the reductions upon the effectiveness of the Credit
Agreement.
SCHEDULE I
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF SUBSIDIARIES AND ADDRESSES FOR NOTICE
SUBSIDIARY GUARANTOR ADDRESS FOR NOTICE
-------------------- ------------------
BOARDWATCH, INCORPORATED 1300 E. 9(th) Street
Cleveland, OH 44114
Attn: Joseph G. NeCastro
DONOHUE MEEHAN 1300 E. 9(th) Street
PUBLISHING COMPANY Cleveland, OH 44114
Attn: Joseph G. NeCastro
DUKE COMMUNICATIONS 1300 E. 9(th) Street
INTERNATIONAL, INC. Cleveland, OH 44114
Attn: Joseph G. NeCastro
DUKE INVESTMENTS, INC. 1300 E. 9(th) Street
Cleveland, OH 44114
Attn: Joseph G. NeCastro
HEALTHWELL.COM, INC. 1300 E. 9(th) Street
Cleveland, OH 44114
Attn: Joseph G. NeCastro
INTERNET WORLD MEDIA, INC. 1300 E. 9(th) Street
Cleveland, OH 44114
Attn: Joseph G. NeCastro
ONE, INC. 1300 E. 9(th) Street
Cleveland, OH 44114
Attn: Joseph G. NeCastro
PTS DELAWARE, INC. 1300 E. 9(th) Street
Cleveland, OH 44114
Attn: Joseph G. NeCastro
PENTON INTERNET, INC. 1300 E. 9(th) Street
Cleveland, OH 44114
Attn: Joseph G. NeCastro
STARDUST.COM 1300 E. 9(th) Street
Cleveland, OH 44114
Attn: Joseph G. NeCastro
SUBSIDIARY GUARANTOR ADDRESS FOR NOTICE
-------------------- ------------------
STREAMING MEDIA, INC. 1300 E. 9(th) Street
Cleveland, OH 44114
Attn: Joseph G. NeCastro
TECH CONFERENCES, INCORPORATED 1300 E. 9(th) Street
Cleveland, OH 44114
Attn: Joseph G. NeCastro
2
SCHEDULE 3.1(a)(i)
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF CHIEF EXECUTIVE OFFICES, JURISDICTIONS OF ORGANIZATION
AND FEDERAL EMPLOYER IDENTIFICATION NUMBERS
JURISDICTION OF
GRANTOR CHIEF EXECUTIVE OFFICE ORGANIZATION FEIN
- ------- ---------------------- --------------- ----
PENTON MEDIA, INC. 1300 E. 9(th) Street Delaware 36-2875386
Cleveland, OH 44114
BOARDWATCH, INCORPORATED 1300 E. 9(th) Street Colorado 84-1208477
Cleveland, OH 44114
DONOHUE MEEHAN 2700 River Road Illinois 36-4240655
PUBLISHING COMPANY Des Plaines, IL 60018
DUKE COMMUNICATIONS 221 E. 29(th) Street Colorado 84-1357904
INTERNATIONAL, INC. Loveland, CO 80538
DUKE INVESTMENTS, INC. 221 E. 29(th) Street Colorado 84-0922160
Loveland, CO 80538
HEALTHWELL.COM, INC. 1401 Pearl Street, Suite 200 Delaware 34-1917641
Boulder, CO 80302
INTERNET WORLD MEDIA, INC. 16 Thorndal Circle Delaware 06-1385519
Darien, CT 06820
ONE, INC. 1300 E. 9(th) Street Colorado 84-1182803
Cleveland, OH 44114
PTS DELAWARE, INC. 1300 E. 9(th) Street Delaware 34-1959399
Cleveland, OH 44114
PENTON INTERNET, INC. 1300 E. 9(th) Street Delaware 34-1927675
Cleveland, OH 44114
STARDUST.COM 1300 E. 9(th) Street California 77-0414434
Cleveland, OH 44114
STREAMING MEDIA, INC. 710 Florida Street, Suite 200 California 94-3296121
San Francisco, CA 94110
TECH CONFERENCES, Unit C-3 Connecticut 06-1400484
INCORPORATED 731 Main Street
Monroe, CT 06468
SCHEDULE 3.1(a)(ii)
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF LEGAL AND OTHER NAMES
PERIOD TRADE OR
LEGAL NAME OF GRANTOR OF USE FICTITIOUS NAMES(*) PRIOR NAMES
- --------------------- ------ ------------------- -----------
PENTON MEDIA, INC. 4 years Professional Trade Shows Penton Publishing 6/94
- 6/98
A/E/C SYSTEMS and/or A/E/C
SYSTEMS International
Industrial Shows of America (ISOA)
Industrial Shows of America
International (ISOA - International)
New Hope Natural Media (New Hope
Communications)
BOARDWATCH, 4 years N/A Boardwatch Magazine,
INCORPORATED Incorporated 2/2/95 -
5/15/98
DONOHUE MEEHAN 4 years N/A DM Acquisition I Corp.
PUBLISHING COMPANY 5/11/98 - 8/7/98
DUKE COMMUNICATIONS 1 year N/A Duke Communications
INTERNATIONAL, INC. International L.L.L.P.
9/25/96 - 2/14/01
DUKE INVESTMENTS, INC. 11 years N/A N/A
HEALTHWELL.COM, INC. 2 years N/A N/A
INTERNET WORLD MEDIA, 4 years N/A Mecklermedia Corporation 6/94 -
INC. 11/24/98
ONE, INC. 4 years N/A ONE, Inc. 6/94 - 5/98
PTS DELAWARE, INC. 2 years N/A N/A
PENTON INTERNET, INC. 2 years N/A N/A
STARDUST.COM 7 years N/A N/A
STREAMING MEDIA, INC. 2 years N/A First Conferences, Inc.
3/25/98 - 9/20/00
2
SCHEDULE 3.1(a)(ii)
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF LEGAL AND OTHER NAMES
PERIOD TRADE OR
LEGAL NAME OF GRANTOR OF USE FICTITIOUS NAMES(*) PRIOR NAMES
- --------------------- ------ ------------------- -----------
PENTON MEDIA, INC. 4 years Professional Trade Shows Penton Publishing 6/94
- 6/98
A/E/C SYSTEMS and/or A/E/C
SYSTEMS International
Industrial Shows of America (ISOA)
Industrial Shows of America
International (ISOA - International)
New Hope Natural Media (New Hope
Communications)
BOARDWATCH, 4 years N/A Boardwatch Magazine,
INCORPORATED Incorporated 2/2/95 -
5/15/98
DONOHUE MEEHAN 4 years N/A DM Acquisition I Corp.
PUBLISHING COMPANY 5/11/98 - 8/7/98
DUKE COMMUNICATIONS 1 year N/A Duke Communications
INTERNATIONAL, INC. International L.L.L.P.
9/25/96 - 2/14/01
DUKE INVESTMENTS, INC. 11 years N/A N/A
HEALTHWELL.COM, INC. 2 years N/A N/A
INTERNET WORLD MEDIA, 4 years N/A Mecklermedia Corporation 6/94 -
INC. 11/24/98
ONE, INC. 4 years N/A ONE, Inc. 6/94 - 5/98
PTS DELAWARE, INC. 2 years N/A N/A
PENTON INTERNET, INC. 2 years N/A N/A
STARDUST.COM 7 years N/A N/A
STREAMING MEDIA, INC. 2 years N/A First Conferences, Inc.
3/25/98 - 9/20/00
3
PERIOD TRADE OR
LEGAL NAME OF GRANTOR OF USE FICTITIOUS NAMES(*) PRIOR NAMES
- --------------------- ------ ------------------- -----------
TECH CONFERENCES, 7 years N/A N/A
INCORPORATED
- -----------------------
(*) With respect to division and trade names used by entities acquired
(directly or indirectly) by Penton Media, Inc. in the past five years, this
schedule lists only those divisions and trade names as to which Penton Media,
Inc.'s executive officers have actual knowledge.
4
SCHEDULE 3.1(a)(v)
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF FILING OFFICES
GRANTOR FILING OFFICE
- ------- -------------
PENTON MEDIA, INC Delaware
BOARDWATCH, INCORPORATED Colorado
DONOHUE MEEHAN Illinois
PUBLISHING COMPANY
DUKE COMMUNICATIONS Colorado
INTERNATIONAL, INC
DUKE INVESTMENTS, INC Colorado
HEALTHWELL.COM, INC Delaware
INTERNET WORLD MEDIA, INC Delaware
ONE, INC Colorado
PTS DELAWARE, INC Delaware
PENTON INTERNET, INC Delaware
STARDUST.COM California
STREAMING MEDIA, INC California
TECH CONFERENCES, Connecticut
INCORPORATED
SCHEDULE 3.2
TO SUPPLEMENTAL SECURITY AGREEMENT
LIST OF INVESTMENT AND RELATED PROPERTY
A. DEPOSIT ACCOUNTS
BANK
- ----
FIRST GUARANTY BANK & Trust
1234 King St.
PO Box 2578
Jacksonville, FL 32203-2578
DEPOSIT ACCT # 1085029
HARRIS BANK
520 Green Bay Road
Winnetka, IL 60093
DEPOSIT ACCT # 0006231977
CHASE MANHATTAN
999 Broad St.
Bridgeport, CT 06604
LOCKBOX DEPOSIT ACCT # 510-2-000360
FLEET BANK
980 Post Rd. East
Westport, CT 06880
FOREIGN DRAFT DEPOSIT ACCT # 941-
758-1251
WELLS FARGO
1242 Pearl Street
Mail Code: C7232-011
Boulder, CO 80302
LOCKBOX DEPOSIT ACCT # 182-8059906
WELLS FARGO
Business Account Ratings
PO Box 219
San Leandro, CA 94577-0619
SHOW DEPOSIT ACCT # 643-6502397
BANK OF AMERICA
231 LaSalle St.
Chicago, IL 60604
SHOW DEPOSIT ACCT # 3751593355
LASALLE BANK
1718 West Lake Street
Melrose Park, IL 60160
SHOW DEPOSIT ACCT # 5201174124
FIRST TENNESSE BANK
7082 Bakers Bridge Road
Franklin, TN 37064
DEPOSIT ACCT # 100186974
WILMINGTON TRUST
Rodney Square North
1100 North Market St.
Wilmington, DE 19890-0001
DEPOSIT ACCT # 2815-3244
WELLS FARGO BANK
110 Mission St.
San Francisco, CA 94105
DEPOSIT ACCT # 0496416389
FIRST NATIONAL BANK
205 W. Oak St.
Ft. Collins, CO 80522
DEPOSIT ACCT # 04600009148
PEOPLE'S BANK
435 Main St.
Monroe, CT 06468
SHOW DEPOSIT ACCT # 032-7005606
SHOW DEPOSIT ACCT # 032-7011504
SHOW DEPOSIT ACCT # 032-7011491
SHOW DEPOSIT ACCT # 032-7011483
KEY BANK
127 Public Square
Cleveland, OH 44114
OPERATING ACCT & Lockbox #
359681001707
NATIONAL CITY BANK
1375 E. Ninth St.
Cleveland, OH 44114
DEPOSIT ACCT # 657100970
BANK OF AMERICA
231 South LaSalle St.
Chicago, IL 60604-1411
DEPOSIT ACCT # 8765261872
2
B. SECURITIES ACCOUNTS
BANK
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HARRIS BANK
520 Green Bay Road
Winnetka, IL 60093
MONEY MARKET ACCT # 0006216684
WELLS FARGO
1242 Pearl Street
Mail Code: C7232-011
Boulder, CO 80302
EUROSWEEP INVESTMENT ACCT # 182-8073308
WELLS FARGO BANK
110 Mission St.
San Francisco, CA 94105
MONEY MARKET ACCT # 6404-463903
FIRST NATIONAL BANK
205 W. Oak St.
Ft. Collins, CO 80522
MONEY MARKET ACCT # 406101483
KEY BANK
127 Public Square
Cleveland, OH 44114
EUROSWEEP INVESTMENT ACCT #
410359681001707
NATIONAL CITY BANK
1900 E. 9th St.
Cleveland, OH 44114
INVESTMENT ACCT # 507657100
CREDIT SUISSE FIRST BOSTON
ACCOUNT # 2KA1N
3