Exhibit 4.4
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT, dated as of March 28, 2002 (this
"AGREEMENT"), is made by and between U.S. BANK NATIONAL ASSOCIATION, in its
capacity as trustee under the Indenture (as defined below) and as secured party,
for the benefit of the Holders (as defined below), under the Pledge and Security
Agreement (as defined below) (together with its successors in such capacities,
the "TRUSTEE"), and THE BANK OF NEW YORK, as administrative agent (together with
its successors in such capacities, the "ADMINISTRATIVE AGENT") under the Credit
Facility Loan Documents (as defined below).
RECITALS
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WHEREAS, Penton Media, Inc., a Delaware corporation (the
"COMPANY"), the Guarantors named therein and the Trustee entered into that
certain Indenture, dated as of March 28, 2002 (as it may be amended, restated,
extended, supplemented and otherwise modified from time to time, the
"INDENTURE"), whereby indebtedness was incurred by the Company and guaranteed by
the Guarantors (as defined in the Indenture), which obligations of the Company
and the Guarantors are secured by Liens on the Collateral (as defined in the
Pledge and Security Agreement (as defined below));
WHEREAS, the Company entered into that certain Amended and
Restated Credit Agreement, dated as of March 8, 2002, among the Company, 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 Administrative
Agent (as it may be amended, restated, extended, supplemented and otherwise
modified from time to time, the "CREDIT AGREEMENT"), whereby the lenders party
thereto agreed, upon the terms and conditions stated therein, to make loans and
advances to, or to issue letters of credit for the account of, the Company in an
aggregate principal amount not to exceed $40,000,000 on the effective date
thereof, which obligations of the Company are guaranteed by the Guarantors and
which obligations of the Company and the Guarantors are secured by Liens on the
Collateral in accordance with the Credit Facility Loan Documents (as defined
below);
WHEREAS, one of the conditions under the Credit Agreement to
the Company entering into the Indenture is that the priority of the Liens on the
Collateral under the Credit Facility Loan Documents be senior in priority to the
Liens on the Collateral under the Indenture Documents (as defined below) in the
manner and to the extent provided for in this Agreement;
WHEREAS, the Trustee and the Administrative Agent desire to
enter into this Agreement concerning their respective rights with respect to the
priority of their respective Liens on the Collateral; and
WHEREAS, the terms of the Indenture authorize and direct the
Trustee to enter into an intercreditor agreement in the form of this Agreement.
WHEREAS, the terms of the Credit Agreement permit the Company
and the Guarantors to enter into the Indenture and the other Indenture
Documents, and in connection therewith, authorize and direct the Administrative
Agent to enter into an intercreditor agreement in the form of this Agreement.
NOW, THEREFORE, the Parties hereby agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement, the
following terms shall have the respective meanings set forth below:
"ADMINISTRATIVE AGENT" has the meaning set forth in the
preamble.
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such first-mentioned Person. For purposes of this
definition, the term "control" means the power to direct the management and
policies of a Person, directly or through one or more intermediaries, whether
through the ownership of voting securities, by contract, or otherwise.
"AGREEMENT" has the meaning set forth in the preamble.
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar
Federal, state or foreign law for the relief of debtors.
"CAPITAL STOCK" means, with respect to any corporation, any
and all shares, interests, rights to purchase (other than convertible or
exchangeable Indebtedness that is not itself otherwise capital stock), warrants,
options, participations or other equivalents of or interests (however
designated) in stock issued by that corporation.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"CASH MANAGEMENT OBLIGATIONS" means obligations of the Company
or any Guarantor, monetary or otherwise, in respect of Cash Management Services
rendered to the Company by a Credit Facility Lender or an Affiliate of a Credit
Facility Lender to the extent such obligations are secured by the Lien on the
Collateral granted to the Administrative Agent pursuant to the Credit Facility
Loan Documents.
"CASH MANAGEMENT SERVICES" means treasury, depository and
other cash management services and/or automated clearing house transfers of
funds.
"CHANGE OF CONTROL PURCHASE DATE" has the meaning set forth in
the Indenture as in effect on the date hereof.
"COLLATERAL" has the meaning set forth in the recitals.
"COLLATERAL AGREEMENTS" means, collectively, the Pledge and
Security Agreement and all other pledges, agreements, financing statements,
filings or other documents that grant or evidence the Lien in the Collateral in
favor of the Trustee for the benefit of the Holders of the Notes.
"COMPANY" has the meaning set forth in the recitals.
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"CREDIT AGREEMENT" has the meaning set forth in the recitals.
"CREDIT FACILITY" has the meaning set forth in the Indenture
as in effect on the date hereof.
"CREDIT FACILITY COLLATERAL DOCUMENTS" means, collectively,
the Credit Facility Security Agreement and all other pledges, agreements,
financing statements, filings or other documents that grant or evidence the Lien
in the Collateral and certain other assets in favor of the Administrative Agent.
"CREDIT FACILITY INDEBTEDNESS" means all present and future
obligations, contingent or otherwise, of the Company and the Guarantors to the
Administrative Agent and the Credit Facility Lenders (or their Affiliates)
arising under or pursuant to the Credit Facility Loan Documents, including, in
each case, interest, fees, indemnities and expenses accruing after the
initiation of any Insolvency Proceeding against the Company or any Guarantor
(irrespective of whether allowed as a claim in such proceeding), and including
the secured claims of the Administrative Agent and the Credit Facility Lenders
(or their Affiliates) in respect of the Collateral in any Insolvency Proceeding
against the Company or any Guarantor. For the avoidance of doubt, "Credit
Facility Indebtedness" includes Cash Management Obligations to the extent such
Cash Management Obligations are included in the definition of "Obligations" in
the Credit Agreement.
"CREDIT FACILITY LENDERS" means the lender or lenders from
time to time party to the Credit Agreement.
"CREDIT FACILITY LOAN DOCUMENTS" means the Credit Agreement,
the notes delivered pursuant thereto, the guaranties in respect thereof, the
Credit Facility Collateral Documents (including the Credit Facility Security
Agreement and the Deposit Acccount Control Agreements) and any other agreements,
instruments and certificates executed and delivered or issued in connection
therewith by any of the Company and the Guarantors and the Interest Rate
Protection Agreements, as any or all may be amended, restated, extended,
supplemented, renewed or otherwise modified from time to time.
"CREDIT FACILITY SECURITY AGREEMENT" means, collectively, the
Security Agreement, dated as of September 1, 1999, among the Company, the
Subsidiaries of the Company party thereto and the Administrative Agent, as
amended by Amendment No. 1, dated as of March 8, 2002, and the Supplemental
Security Agreement, dated as of March 8, 2002, among the Company, the
Subsidiaries of the Company party thereto and the Administrative Agent, as each
may be amended, restated, extended, supplemented or otherwise modified from time
to time.
"DEPOSIT ACCOUNT CONTROL AGREEMENTS" means the deposit account
control agreements executed, or to be executed from time to time, by the
Administrative Agent (or Replacement Agent), the Trustee and each depository
bank at which a deposit account included in the Collateral is maintained for the
purpose of perfecting the Liens of the Trustee and the Administrative Agent (or
Replacement Agent) in each such deposit account.
"DISQUALIFIED CAPITAL STOCK" means with respect to any Person,
(a) Equity Interests of such Person that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event or the passage of time or both would be, required to
be redeemed or repurchased (including at the option of the holder thereof) by
such Person or any of its Subsidiaries, in whole or in part, on or prior to
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91 days following the Stated Maturity of the Notes and (b) any Equity Interests
of any Subsidiary of such Person other than any common equity with no
preferences, privileges, and no redemption or repayment provisions; PROVIDED
that any Equity Interest that would constitute Disqualified Capital Stock solely
because the holders thereof have the right to require the issuer to repurchase
such Disqualified Capital Stock upon the occurrence of a change of control shall
not constitute Disqualified Capital Stock if the terms of such Equity Interest
provide that (i) any such repurchases may not be made sooner than 10 days after
the Change of Control Purchase Date for the Notes and (ii) such Equity Interests
so repurchased are fully and absolutely subordinated to the indefeasible payment
in full of all principal, interest and other amounts due under the Notes
repurchased on such Change of Control Purchase Date, and any Equity Interest not
so repurchased shall remain so fully and absolutely subordinated to the Notes
not so repurchased.
"ENFORCEMENT ACTION" means, with respect to any Party,
commencement of any action, whether judicial or otherwise, for the enforcement
of such Party's rights or remedies as a secured creditor with respect to the
Collateral, including (a) commencement of any receivership or foreclosure
proceedings against, or any other sale of, collection on, or disposition of, any
Collateral, or any other exercise of rights or remedies with respect to the
Collateral under the Indenture Documents or the Credit Facility Loan Documents,
including the delivery of a Notice of Exclusive Control, (b) notifying any
third-party account debtors of the Company or any of its Subsidiaries to make
payment directly to such Party or to any of its agents or other Persons acting
on its behalf, or (c) following the commencement of an Insolvency Proceeding
against the Company or any Guarantor, as applicable, exercising any rights
afforded to secured creditors in a case under Bankruptcy Law with respect to the
Collateral or taking any other action under Bankruptcy Law that directly relates
to or directly affects any Collateral, other than any such action that relates
to or affects all or substantially all of the property of the bankruptcy estate.
"ENFORCEMENT EVENT" means the occurrence and continuance of an
Event of Default.
"ENFORCEMENT EVENT NOTICE" has the meaning set forth in
SECTION 3.2.
"ENTITLED PARTY" has the meaning set forth in SECTION 4.1(a).
"EQUITY INTERESTS" means Capital Stock or partnership,
participation or membership interests and all warrants, options or other rights
to acquire Capital Stock or partnership, participation or membership interests
(but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock or partnership, participation or membership interests).
"EVENT OF DEFAULT" means any "Event of Default" under any
Financing Document and includes any other default under or breach of the
Financing Documents that would entitle the Administrative Agent or the Trustee,
respectively, to declare any Indebtedness thereunder to be due and payable prior
to its stated maturity.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"EXPIRY DATE" has the meaning set forth in SECTION 3.2(b)(i).
"FINANCING DOCUMENTS" means the Indenture Documents and the
Credit Facility Loan Documents.
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"FOREIGN SUBSIDIARY" means any Subsidiary of the Company which
(i) is not organized under the laws of the United States, any state thereof or
the District of Columbia and (ii) conducts substantially all of its business
operations outside the United States of America.
"FULLY PAID" means the payment in cash or cash equivalents in
full of all obligations (other than indemnity obligations to the extent not then
due and payable that survive payment in full) under the Credit Facility Loan
Documents or the Indenture Documents, as the case may be, and in the case of the
Credit Facility Loan Documents, at such time when there shall no longer be any
obligation to make loans or advances or issue letters of credit (or guaranties
in respect thereof) thereunder and there shall no longer be any letter of credit
(or guaranty in respect thereof) outstanding thereunder or such letter of credit
(or guaranty in respect thereof) shall have been fully collateralized (in
accordance with the provisions of the Credit Facility Loan Documents).
"GAAP" means United States generally accepted accounting
principles as in effect on the date hereof as set forth in (1) the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants, (2) statements and pronouncements of the Financial
Accounting Standards Board, (3) such other statements by such other entity as
approved by a significant segment of the accounting profession in the United
States and (4) the rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in periodic
reports required to be filed pursuant to Section 13 of the Exchange Act,
including opinions and pronouncements in staff accounting bulletins and similar
written statements from the accounting staff of the SEC.
"HOLDERS" means the holders of the Notes from time to time.
"INDEBTEDNESS" of any Person means, without duplication, (a)
all liabilities and obligations, contingent or otherwise, of such Person, to the
extent such liabilities and obligations would appear as a liability upon the
consolidated balance sheet of such Person in accordance with GAAP, (1) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (2) evidenced
by bonds, notes, debentures or similar instruments, or (3) representing the
balance deferred and unpaid of the purchase price of any property or services,
except those incurred in the ordinary course of its business that would
constitute ordinarily a trade payable to trade creditors; (b) all liabilities
and obligations, contingent or otherwise, of such Person (1) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks, (2)
relating to any Capitalized Lease Obligation, or (3) evidenced by a letter of
credit or a reimbursement obligation of such Person with respect to any letter
of credit; (c) all net obligations of such Person under Interest Swap and
Hedging Obligations; (d) all liabilities and obligations of others of the kind
described in the preceding clause (a), (b) or (c) that such Person has
guaranteed or provided credit support or that is otherwise its legal liability
or which are secured by any assets or property of such Person; (e) any and all
deferrals, renewals, extensions, refinancings and refundings (whether direct or
indirect) of, or amendments, modifications or supplements to, any liability of
the kind described in any of the preceding clauses (a), (b), (c) or (d), or this
clause (e), whether or not between or among the same parties; and (f) all
Disqualified Capital Stock of such Person (measured at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends); PROVIDED, that (1) any indebtedness which has been defeased in
accordance with GAAP or defeased pursuant to the deposit of cash or U.S.
Government Obligations (in an amount sufficient to satisfy all such indebtedness
obligations at maturity or redemption, as applicable, and all payments of
interest and premium, if any) in a trust or account created or pledged for the
sole benefit of the holders of such indebtedness, and subject to no other Liens,
and the other applicable
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terms of the instrument governing such indebtedness, and (2) obligations
created, issued or incurred by any Person with respect to customer subscription
payments or customer deposits for trade shows and exhibitions shall not
constitute "Indebtedness." For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased on any date
on which Indebtedness shall be required to be determined pursuant to the terms
hereof, and if such price is based upon, or measured by, the fair market value
of such Disqualified Capital Stock, such fair market value to be determined in
good faith by the board of directors of the issuer (or managing general partner
of the issuer) of such Disqualified Capital Stock. The amount of any
Indebtedness outstanding as of any date shall be the accreted value thereof, in
the case of any Indebtedness issued with original issue discount, but the
accretion of original issue discount in accordance with the original terms of
Indebtedness issued with an original issue discount will not be deemed to be an
incurrence.
"INDENTURE" has the meaning set forth in the recitals.
"INDENTURE DOCUMENTS" means the Indenture, the Notes, the
Collateral Agreements (including the Pledge and Security Agreement and the
Deposit Account Control Agreements) and the Registration Rights Agreement, and
such other agreements, instruments and certificates executed and delivered (or
issued) by the Company or the Guarantors pursuant to the Indenture, as any or
all of the same may be amended, restated, extended, supplemented, renewed or
otherwise modified from time to time.
"INSOLVENCY PROCEEDING" means any proceeding for the purposes
of dissolution, winding up, liquidation, arrangement or reorganization of any
Person, whether in bankruptcy, insolvency, arrangement, reorganization or
receivership proceedings, or upon an assignment for the benefit of creditors or
any other marshaling of the assets and liabilities of such Person.
"INTEREST RATE PROTECTION AGREEMENTS" means each interest rate
protection agreement or foreign currency exchange protection agreement entered
into with a counterparty that was a Credit Facility Lender or an Affiliate of a
Credit Facility Lender at the time such interest rate protection or foreign
currency exchange protection agreement was entered into.
"INTEREST SWAP AND HEDGING OBLIGATION" means any obligation of
any Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"LIEN" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
"LIEN PRIORITY" means, with respect to any Lien in and to the
Collateral, the order of priority of such Lien as specified in SECTIONS 2.1 and
2.2.
"MAXIMUM AMOUNT" has the meaning set forth in SECTION 2.1.
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"NOTES" means the 11-7/8% Senior Secured Notes Due 2007 issued
by the Company under the Indenture.
"NOTICE OF EXCLUSIVE CONTROL" has the meaning set forth in the
Deposit Account Control Agreements.
"PARTY" means any signatory to this Agreement.
"PERSON" means any corporation, individual, limited liability
company, joint stock company, joint venture, partnership, unincorporated
association, governmental regulatory entity, country, state or political
subdivision thereof, trust, municipality or other entity.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security
Agreement, of even date herewith, among the Trustee, the Company and the
Guarantors, as amended, restated, extended, supplemented or otherwise modified
from time to time.
"REPLACEMENT AGENT" means any Person (including a collateral
agent or an administrative agent) to whom the Company or the Guarantors may
grant Liens in the Collateral in connection with the replacement or refinancing
of the Credit Agreement with Indebtedness that is permitted to be incurred under
the Credit Facility pursuant to Section 4.11 of the Indenture and to the extent
that such Liens are permitted under clause (m) of the definition of "Permitted
Indebtedness."
"SEC" means the Securities and Exchange Commission.
"SECURED LIABILITY" means the Subordinated Lien Indebtedness
and the Credit Facility Indebtedness.
"STATED MATURITY," when used with respect to any Note, means
October 1, 2007.
"SUBORDINATED LIEN INDEBTEDNESS" means all present and future
obligations, contingent or otherwise, of the Company and the Guarantors to the
Trustee or Holders arising under or pursuant to the Indenture Documents,
including, in each case, interest, fees, indemnities and expenses accruing after
the initiation of any Insolvency Proceeding against the Company or any Guarantor
(irrespective of whether allowed as a claim in such proceeding), and including
the secured claims of the Trustee or the Holders in respect of the Collateral in
any Insolvency Proceeding against the Company or any Guarantor.
"SUBSIDIARY" with respect to any Person, means (1) a
corporation a majority of whose Equity Interests with voting power, under
ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by such Person, by such Person and one or more Subsidiaries of
such Person or by one or more Subsidiaries of such Person, (2) any other Person
(other than a corporation) in which such Person, one or more Subsidiaries of
such Person, or such Person and one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has a majority
ownership interest, or (3) a partnership in which such Person or a Subsidiary of
such Person is, at the time, a general partner.
"TRIGGER DATE" means the earlier of (i) the date on which an
event contemplated by clause (b) or (c) of the definition of "Trigger Event"
occurs, (ii) the date on which an
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Enforcement Event Notice is delivered, and (iii) the final maturity date of the
Credit Facility Indebtedness (after giving effect to any extensions granted
thereunder).
"TRIGGER EVENT" means: (a) the occurrence of an Event of
Default, (b) the acceleration of the maturity of the Credit Facility
Indebtedness by the Administrative Agent or the Credit Facility Lenders pursuant
to the Credit Facility Loan Documents, or (c) the commencement of any action or
proceeding by the Administrative Agent or a Credit Facility Lender, whether
judicial or otherwise (but excluding demands for payment or notices of default),
for the enforcement of the Administrative Agent's or such Credit Facility
Lender's rights or remedies under any of the Credit Facility Loan Documents,
including (i) commencement of any Enforcement Action against or any other sale
of, collection on or disposition of any Collateral, including any notification
to third parties to make payment directly to the Administrative Agent or any
Credit Facility Lender; (ii) exercise of any right of set-off; (iii)
commencement of any Insolvency Proceeding against the Company or any Guarantor;
and (iv) commencement of any judicial action or proceeding against the Company
or any Guarantor to recover all or any part of the Credit Facility Indebtedness.
"TRUSTEE" has the meaning set forth in the preamble.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable
obligations of, or noncallable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
SECTION 1.2 MISCELLANEOUS. All definitions herein (whether set
forth herein directly or by reference to definitions in other documents) shall
be equally applicable to both the singular and the plural forms of the terms
defined. The words "hereof," "herein" or "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. Article and section references are
to articles and sections of this Agreement unless otherwise specified. The term
"including" means "including without limitation."
ARTICLE II
LIEN PRIORITY
SECTION 2.1 AGREEMENT TO SUBORDINATE LIENS. The Trustee hereby
agrees that the Liens of the Trustee for the benefit of itself and the Holders
in and to the Collateral are and shall be subordinate in priority to the Liens
of the Administrative Agent in and to the Collateral securing the Credit
Facility Indebtedness up to, but not in excess of the sum of (i) $40,000,000 (or
such greater amount which, at the time of incurrence, is permitted to be
incurred under the Credit Facility pursuant to Section 4.11 of the Indenture and
to the extent that the Liens securing such Indebtedness are permitted under
clause (m) of the definition of "Permitted Indebtedness") in principal amount of
Indebtedness outstanding under the Credit Facility Loan Documents (other than
any Cash Management Obligations), all related interest, fees, costs, indemnities
and expenses, and all obligations under any Interest Rate Protection Agreements,
and (ii) $2,000,000 of Cash Management Obligations (the "MAXIMUM AMOUNT");
PROVIDED that the principal amount of Indebtedness in clause (i) above shall be
reduced in an amount equal to the amount, if any, that the principal amount of
Indebtedness under the Credit Facility is reduced in accordance with Section
4.11(b) of the Indenture following Asset Sales (as defined in the Indenture).
The subordination of the Liens of the Trustee for the benefit of itself and the
Holders in and to the
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Collateral in favor of the Administrative Agent provided for herein shall not be
deemed to (a) subordinate the Liens of the Trustee to the Liens of any other
Person; or (b) subordinate the Subordinated Lien Indebtedness to any
Indebtedness of the Company or any of the Guarantors, including the Credit
Facility Indebtedness.
SECTION 2.2 NO CONTEST; WAIVER; EXCLUDED ASSETS. Each Party
agrees that it will not attack or contest the validity, perfection, priority or
enforceability of the Liens of the other Party or finance or urge any other
Person to do so; PROVIDED that either Party may enforce its rights and
privileges hereunder without being deemed to have violated this provision. Each
Party hereby waives, to the fullest extent permitted by law: (i) any right (A)
under Section 9-608(a)(1) of the Uniform Commercial Code to application of the
proceeds of disposition of any Collateral other than as contemplated by this
Agreement, (B) to redeem any of the Collateral following foreclosure thereon by
the other Party, and (C) to promptness, diligence, notice of acceptance and any
other notice with respect to any of the Obligations under the Financing
Documents, except any notices contemplated by this Agreement, and (ii) any
requirement that the Administrative Agent protect, secure, perfect or insure any
Lien under any Credit Facility Loan Documents or otherwise or the Collateral or
any other property subject thereto or exhaust any right or take any action
against the Company or any Guarantor or any Person or any Collateral, except as
expressly provided in this Agreement. Any provision contained in this Agreement
to the contrary notwithstanding, the terms and conditions of this Agreement
shall not apply to any property or assets (including property or assets that do
not constitute Collateral) that one Party has a perfected Lien on and the other
Party does not (other than any Lien securing Indebtedness to the extent such
Lien, or such Indebtedness, or any payment which has been made thereon is
subsequently avoided, disallowed, set aside or otherwise invalidated in any
judicial proceeding as a result of fraudulent conveyance).
SECTION 2.3 EXERCISE OF RIGHTS.
(a) The Trustee may exercise, and nothing herein shall
constitute a waiver of, any right it may have at law or in equity to receive
notice of, or to commence or join with any creditor in commencing any Insolvency
Proceeding against the Company or any Guarantor; PROVIDED that the exercise of
any such right by the Trustee shall be (i) subject to the Lien Priority and the
application of proceeds of Collateral under SECTION 3.4, and (ii) subject to the
provisions of SECTIONS 3.1 and 3.2.
(b) Notwithstanding any other provision hereof, the
Trustee and the Holders may make such demands or file such claims as may be
necessary to prevent the waiver or bar of such claims under applicable statutes
of limitations or other statutes, court orders or rules of procedure.
SECTION 2.4 PRIORITY OF LIENS. Irrespective of any reason,
including the order of recording of financing statements, security agreements or
other instruments, or the descriptions of Collateral contained in the Financing
Documents, including any financing statements, the Parties agree among
themselves that their respective Liens in the Collateral shall be governed by
the Lien Priority, which shall be controlling in the event of any conflict
between this Agreement and any of the Financing Documents.
ARTICLE III
ACTIONS OF THE PARTIES
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SECTION 3.1 LIMITATION ON CERTAIN ACTIONS. Subject to SECTION
3.2, until the earlier of (a) the date on which all Credit Facility Indebtedness
is Fully Paid, and (b) the first date following the date on which the Maximum
Amount of Credit Facility Indebtedness is Fully Paid, the Trustee will not,
without the prior written consent of the Administrative Agent, take any
Enforcement Action.
SECTION 3.2 STANDSTILL PERIOD.
(a) If an Enforcement Event has occurred and is
continuing, the Trustee, on behalf of the Holders, may give the Administrative
Agent written notice thereof (an "ENFORCEMENT EVENT NOTICE") if the Trustee has
knowledge thereof.
(b) The Trustee may, subject to the Lien Priority and
the application of all proceeds of the Collateral in accordance with SECTION
3.4, take one or more Enforcement Actions so long as:
(i) (A) an Enforcement Event is continuing for
more than 180 consecutive days after the delivery of such Enforcement
Event Notice (the "EXPIRY DATE"); (B) the Administrative Agent has not,
on or before the Expiry Date, commenced one or more Enforcement
Actions, (C) the Company or the Guarantor against which the Trustee's
proposed Enforcement Action is to be taken is not the subject of an
Insolvency Proceeding (or other judicial proceeding preventing or
seeking to prevent the Administrative Agent from taking an Enforcement
Action with respect to the Collateral), and (D) the Administrative
Agent is not the subject of any judicial proceeding preventing or
seeking to prevent the Administrative Agent from taking an Enforcement
Action with respect to the Collateral; or
(ii) (A) the Administrative Agent has commenced
any Enforcement Action on or prior to the Expiry Date and, at any time
after the Expiry Date, is no longer pursuing or engaged in any
Enforcement Action, (B) no Insolvency Proceeding (or other judicial
proceeding preventing or seeking to prevent the Administrative Agent
from taking an Enforcement Action with respect to the Collateral) is
pending against the Company or the Guarantor against which the
Trustee's proposed Enforcement Action is to be taken, (C) the
Enforcement Event that was the subject of, or existing on the date of,
the Enforcement Event Notice is then continuing, and (D) the
Administrative Agent is not the subject of any judicial proceeding
preventing or seeking to prevent the Administrative Agent from taking
an Enforcement Action with respect to the Collateral.
(c) With respect to any deposit account included
in the Collateral that is subject to a Deposit Account Control Agreement,
notwithstanding any provision to the contrary in such Deposit Account Control
Agreement, the Administrative Agent shall have the sole right to deliver a
Notice of Exclusive Control pursuant to such Deposit Account Control Agreement
and become the "Notice Party" thereunder until the later of (i) if the
Administrative Agent has not commenced any Enforcement Action after the delivery
of an Enforcement Event Notice, the Expiry Date, and (ii) if the Administrative
Agent has commenced any Enforcement Action after the delivery of an Enforcement
Event Notice, such time when the Administrative Agent is no longer pursuing or
engaged in any Enforcement Action. If the Administrative Agent delivers a Notice
of Exclusive Control with respect to any deposit account subject to a Deposit
Account
10
Control Agreement, at any time following the earlier of (x) the Credit Facility
Indebtedness being Fully Paid, and (y) the first time following the date at
which the Maximum Amount of Credit Facility Indebtedness is Fully Paid, or at
any earlier time at the Administrative Agent's discretion, the Administrative
Agent shall promptly upon written request by the Company or the Trustee deliver
a Notice of Termination in accordance with such Deposit Account Control
Agreement.
(d) Except as expressly provided for in this
Agreement, nothing in this Agreement shall prevent the Parties hereto from
exercising any other remedy, or taking any other action, under any of the
Financing Documents.
SECTION 3.3 FORECLOSURE. Any Party taking a permitted
Enforcement Action may enforce its Financing Documents independently as to the
Company and each Guarantor and independently of any other remedy or security
such Party at any time may have or hold in connection with its Secured
Liabilities, and it shall not be necessary for such Party to marshal assets in
favor of the other Party or any other Person or to proceed upon or against or
exhaust any other security or remedy before proceeding to enforce the Financing
Documents. Each of the Trustee (for so long as the Credit Facility Indebtedness
is not Fully Paid) and the Administrative Agent (for so long as the Trustee and
the Holders are owed any Subordinated Lien Indebtedness) expressly waives any
right to require the other Party to marshal assets in its favor or to proceed
against any Collateral provided by the Company or any Guarantor, or any other
property, assets or collateral provided by the Company, any Guarantor or any
other Person, and agrees that the Party taking such permitted Enforcement Action
may proceed against the Company, any Guarantor, any Collateral or other
property, assets or other collateral provided by any of them or by any other
Person, in such order and at such times as it shall determine in its sole and
absolute discretion. The foregoing notwithstanding: (a) with respect to the sale
or other disposition of any Collateral, the Party conducting such sale or other
disposition agrees in favor of the other Party that such sale or other
disposition shall be conducted in a commercially reasonable manner in accordance
with any applicable law, including Article 9 of the UCC, and (b) the
Administrative Agent agrees that, at such time as all Credit Facility
Indebtedness is Fully Paid, the Administrative Agent thereupon promptly shall
cease all further Enforcement Actions.
SECTION 3.4 DISTRIBUTION. Each Party agrees that upon any
distribution as a result of an Enforcement Action or the receipt of any other
payment or distribution with respect to the Collateral in connection with the
enforcement or realization thereof or in connection with any Insolvency
Proceeding relating to the Company or any Guarantor, the proceeds thereof shall
be distributed in the order of, and in accordance with, the following
priorities:
(a) FIRST:
(i) if the Enforcement Action is taken by the
Administrative Agent, to the payment of all reasonable costs and
expenses, commissions and taxes of the Administrative Agent incurred in
connection with taking any such Enforcement Action or other
realization, including all reasonable expenses (including attorneys'
fees and expenses), liabilities and advances made or incurred by the
Administrative Agent in connection therewith;
(ii) if the Enforcement Action is taken and
entitled to be taken hereunder by the Trustee, to the payment of all
reasonable costs and expenses, commissions and taxes of the Trustee
incurred in connection with taking any such Enforcement Action or other
realization, including all reasonable
11
expenses (including attorneys' fees and expenses), liabilities and
advances made or incurred by the Trustee in connection therewith;
(b) SECOND, to the Administrative Agent, until the
earlier of (i) the Credit Facility Indebtedness being Fully Paid, and (ii) the
first time following the date at which the Maximum Amount of Credit Facility
Indebtedness is Fully Paid;
(c) THIRD, to the Trustee, until all Subordinated Lien
Indebtedness is Fully Paid; and
(d) FOURTH, to the Administrative Agent until all
outstanding Credit Facility Indebtedness in excess of the Maximum Amount is
Fully Paid.
SECTION 3.5 NOTICE OF CERTAIN EVENTS. Each Party agrees that
it will notify the other in writing (a) if it receives actual notice of the
occurrence of a Trigger Event under clause (b) or (c) of the definition of
"Trigger Event," not later than 30 days after the date of any such occurrence,
and (b) prior to its first exercising any remedies with respect to any portion
of the Collateral in connection with one or more Events of Default, PROVIDED
that, if all such Events of Default are cured or waived, such notice under this
clause (b) will be given on each other occasion that remedies are first
exercised with respect to one or more other Events of Default. Notwithstanding
the foregoing, (x) the Administrative Agent shall not be obligated to provide
such prior written notice if the Administrative Agent deems it necessary or
advisable to act immediately in order to preserve, protect or obtain possession
or control over the Collateral or any portion thereof; PROVIDED that if the
Administrative Agent does not provide prior written notice, the Administrative
Agent agrees to provide the Trustee with written notice as soon as practicable
following the Administrative Agent first exercising remedies with respect to any
portion of the Collateral; and (y) no Party shall incur any liability to the
other under this SECTION 3.5 as a result of the failure of such Party to provide
any such notice so long as the failure to so provide such notice was not the
result of willful misconduct, bad faith or gross negligence.
ARTICLE IV
ENFORCEMENT OF PRIORITIES
SECTION 4.1 IN FURTHERANCE OF LIEN PRIORITIES. Each Party
agrees as follows:
(a) All payments or distributions of or with respect
to the Collateral that are received by any Party contrary to the provisions of
this Agreement shall be segregated from other funds and property held by such
Party and shall be held in trust for the Party entitled thereto (the "ENTITLED
PARTY") in accordance with the provisions of SECTION 3.4 and such Party shall
forthwith pay over such remaining proceeds to the Entitled Party in the same
form as so received (with any necessary endorsement) to be applied (in the case
of cash) or held as Collateral (in the case of non-cash property or securities)
in accordance with the provisions hereof and the provisions of the applicable
Financing Documents.
(b) After the earlier of (i) the date on which all
Credit Facility Indebtedness is Fully Paid, and (ii) the first date following
the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is
Fully Paid, the Administrative Agent and the Credit Facility Lenders will
promptly execute and deliver all further instruments and documents, and take all
further acts that may be necessary or that the Trustee may reasonably
12
request, to permit the Trustee to evidence the termination of the Lien Priority
hereunder or in furtherance thereof; PROVIDED that (x) the Administrative Agent
and the Credit Facility Lenders shall not be required to pay over any payment or
distribution, execute any instruments or documents or take any other action
referred to in this SECTION 4.1(b) to the extent that such action would
contravene any law, order or other legal requirement, and in the event of a
controversy or dispute, the Administrative Agent may interplead any payment or
distribution in any court of competent jurisdiction; and (y) the Administrative
Agent shall not incur any liability to the Trustee for failure to provide any
such further instruments and documents or take any further acts, so long as the
failure to provide any such further instruments and documents or take any such
further act was not the result of malfeasance, willful misconduct or gross
negligence.
(c) Each Party is hereby authorized to demand specific
performance of this Agreement, whether or not the Company or any Guarantor shall
have complied with any of the provisions hereof applicable to it, at any time
when either Party shall have failed to comply with the provisions of this
Agreement applicable to it. Each Party hereby irrevocably waives any defense
based on the adequacy of a remedy at law, which might be asserted as a bar to
such remedy of specific performance.
(d) This Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of any of the
Secured Liabilities is, other than as a result of any intentional fraud or gross
negligence of the applicable Party, rescinded or must otherwise be returned by
the applicable Party upon the insolvency, bankruptcy or reorganization of the
Company or any Guarantor or otherwise, all as though such payment had not been
made.
SECTION 4.2 PERFECTION OF POSSESSORY SECURITY INTERESTS. For
the limited purpose of perfecting the security interests of the Parties in those
types or items of Collateral in which a security interest may be perfected by
possession or control (including the Equity Interests of any Foreign
Subsidiaries), each Party hereby appoints the other Party as its representative
for the limited purpose of possessing on its behalf any such Collateral that may
come into the possession or control of such other Party from time to time, and
each Party agrees to act as the other Party's representative for such limited
purpose of perfecting the other Party's security interest by possession or
control through a representative, PROVIDED that neither Party shall incur any
liability to the other by virtue of acting as the other Party's representative
hereunder. In this regard, each Party that is in possession or control of any
such item of Collateral agrees that if it elects to relinquish possession or
control of such item of Collateral, it shall deliver possession or control
thereof to the other Party; PROVIDED that no Party shall be required to deliver
any such item of Collateral or take any other action referred to in this Section
to the extent that such item of Collateral was sold or disposed of in a
transaction permitted by the Financing Documents to which such Party is a party
or to the extent such action would contravene any law, order or other legal
requirements, and in the event of a controversy or dispute, such Party may
interplead any item of Collateral in any court of competent jurisdiction;
PROVIDED FURTHER that if the Administrative Agent is relinquishing possession or
control of items of Collateral in connection with the replacement or refinancing
of the Credit Agreement with Indebtedness that is permitted to be incurred under
the Credit Facility pursuant to Section 4.11 of the Indenture and such
Indebtedness is secured by Liens permitted under clause (m) of the definition of
"Permitted Indebtedness," the Administrative Agent may deliver such items to the
Replacement Agent if such Replacement Agent has entered into an intercreditor
agreement substantially in the form of this Agreement in accordance with Section
11.5 of the Indenture.
SECTION 4.3 CONTROL OF DISPOSITIONS OF COLLATERAL AND EFFECT
THEREOF ON JUNIOR LIENS.
13
(a) Each Party hereby agrees that any collection, sale
or other disposition of Collateral (whether under the applicable Uniform
Commercial Code or otherwise) by the Administrative Agent shall be free and
clear of any Lien of the Trustee in such Collateral; PROVIDED that the Trustee
shall retain a Lien (having the same priority as the Lien it previously had on
the item of Collateral that was collected, sold or otherwise disposed of) on the
proceeds of such collection, sale or other disposition (except to the extent
such proceeds are applied to the Credit Facility Indebtedness in accordance with
SECTION 3.4).
(b) To the extent reasonably requested by the
Administrative Agent, the Trustee will promptly execute and deliver and
otherwise cooperate in providing any necessary or appropriate releases to permit
a collection, sale or other disposition of Collateral, as provided in SECTION
4.3(a), by the Administrative Agent therein free and clear of the Trustee's
junior Lien.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 RIGHTS OF SUBROGATION. The Trustee agrees that no
payment or distribution received by the Trustee on account of the Subordinated
Indebtedness, which payment is applied against the Subordinated Indebtedness and
is paid over to the Administrative Agent or a Credit Facility Lender pursuant to
Section 4.1, shall entitle the Trustee to exercise any rights of subrogation in
respect thereof until the earlier of (a) the date on which all Credit Facility
Indebtedness is Fully Paid and (b) the Maximum Amount of Credit Facility
Indebtedness shall have been Fully Paid.
SECTION 5.2 FURTHER ASSURANCES. The Parties will, at their own
expense and at any time and from time to time, promptly execute and deliver all
further instruments and documents, and take all further reasonable action
(including the recordation of a subordination agreement in the appropriate
recorder's office), that may be necessary or desirable or that either Party may
reasonably request, in order to protect any right or interest granted or
purported to be granted hereby or to enable such Party to exercise and enforce
its rights and remedies hereunder; PROVIDED that no Party shall be required to
pay over any payment or distribution, execute any instruments or documents or
take any other action referred to in this SECTION 5.2 to the extent that such
action would contravene any law, order or other legal requirement binding upon
such Party, and in the event of a controversy or dispute, any Party may
interplead any payment or distribution in any court of competent jurisdiction,
without further responsibility in respect of such payment or distribution under
this SECTION 5.2.
SECTION 5.3 DEFENSES SIMILAR TO SURETYSHIP DEFENSES. All
rights, interests, agreements and obligations of each of the Parties under this
Agreement shall remain in full force and effect irrespective of:
(a) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured Liabilities, or any other
amendment or waiver of or any consent to departure from the Financing Documents;
PROVIDED that this SECTION 5.3(a) shall not apply to, and the Trustee's Liens on
the Collateral shall not be subordinated in priority by virtue of this Agreement
to, the Administrative Agent's Liens thereon if and to the extent that the
Credit Facility Indebtedness is increased, without the express written consent
of the Trustee, to an amount in excess of the Maximum Amount;
14
(b) any exchange, release, non-enforcement or
non-perfection of any Party's Liens with respect to any Collateral, or any
release, amendment or waiver of or consent to departure from any guaranty, for
all or any of the Secured Liabilities; or
(c) any failure by any Party to marshal assets in
favor of any other Party or any other Person or to proceed upon or against or
exhaust any security or remedy before proceeding to enforce the Financing
Documents.
SECTION 5.4 AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement and no consent to any departure by any Party shall
be effective unless the same is in writing and signed by each Party, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given, subject to any consent required in
accordance with Article IX of the Indenture.
SECTION 5.5 ADDRESSES FOR NOTICES. All demands, notices and
other communications provided for hereunder shall be in writing, and if to the
Trustee, mailed, sent by facsimile or delivered to it at the following address:
U.S. Bank National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Facsimile: (651) 244-0711
Attention: Corporate Trust Services
and if to the Administrative Agent, mailed, sent by facsimile or delivered to it
at the following address:
The Bank of New York
One Wall Street
New York, New York 10286
Facsimile: (212) 635-6365
Attention: Renee Dudley
and
Facsimile: (212) 635-8593
Attention: Kristen Talaber
with copies to the Company, mailed, sent by facsimile or delivered to them at
the following address:
Penton Media, Inc.
1300 East Ninth Street
Cleveland, Ohio 44114
Facsimile: (216) 931-9891
Attention: Joseph NeCastro
or as to any Party at such other address designated by such Party in a written
notice to the other Party complying as to delivery with the terms of this
SECTION 5.5. All such demands, notices and other communications shall be
effective on the date of receipt.
15
SECTION 5.6 NO WAIVER OF REMEDIES. No failure on the part of
any Party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 5.7 TERMINATION OF AGREEMENT. This Agreement shall
(a) be binding upon the Parties and their successors and assigns (including the
Credit Facility Lenders); (b) inure to the benefit of and be enforceable by the
Parties and their respective successors, transferees and assigns; and (c)
terminate upon the Credit Facility Indebtedness or the Subordinated Lien
Indebtedness being Fully Paid; PROVIDED that the obligations of the Parties
under SECTIONS 4.1 and 5.2 shall survive this Agreement. In the event that the
Credit Agreement is replaced or refinanced prior to the Subordinated Lien
Indebtedness being Fully Paid with Indebtedness that is permitted to be incurred
under the Credit Facility pursuant to Section 4.11 of the Indenture and such
Indebtedness is secured by Liens permitted under clause (m) of the definition of
"Permitted Indebtedness, the Trustee shall upon request of the Company enter
into an intercreditor agreement substantially in the form of this Agreement with
the Replacement Agent as provided in Section 11.5 of the Indenture.
SECTION 5.8 GOVERNING LAW; ENTIRE AGREEMENT. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York applicable to contracts made and to be performed in New York, including
Sections 5-1401 and 5-1402 of the New York General Obligations Law. This
Agreement constitutes the entire agreement and understanding among the Parties
with respect to the subject matter hereof and supersedes any prior agreements,
written or oral, with respect thereto.
SECTION 5.9 COUNTERPARTS. This Agreement may be executed in
any number of counterparts, and it is not necessary that the signatures of all
Parties be contained on any one counterpart hereof, each counterpart (including
counterparts delivered by facsimile) will be deemed to be an original, and all
together shall constitute one and the same document.
SECTION 5.10 NO THIRD PARTY BENEFICIARY. This Agreement is
solely for the benefit of the Parties (and their successors and assigns) and the
holders of the Secured Liabilities (including the Administrative Agent, the
Credit Facility Lenders and the Holders). No other Person (including the
Company, any Guarantor or any Subsidiary or Affiliate of the Company) shall be
deemed to be a third party beneficiary of this Agreement or shall have any
rights to enforce any provisions hereof.
SECTION 5.11 HEADINGS. The headings of the articles and
sections of this Agreement are inserted for purposes of convenience only and
shall not be construed to affect the meaning or construction of any of the
provisions hereof.
SECTION 5.12 SEVERABILITY. If any of the provisions in this
Agreement shall, for any reason, be held invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement and shall not invalidate the Lien Priority
or any other priority set forth in this Agreement.
SECTION 5.13 TRUSTEE STATUS. Notwithstanding any term herein
to the contrary, it is hereby expressly agreed and acknowledged that the
subordination and related agreements set forth herein by the Trustee are made
solely in its capacity as trustee and secured party under the Indenture
Documents and with respect to the Notes (and not in its individual commercial
16
capacity, except to the extent that it is or becomes a Holder). The Trustee
shall not have any duties, obligations or responsibilities to the Administrative
Agent or the Credit Facility Lenders under this Agreement except as expressly
set forth herein. Nothing in this Agreement shall be construed to operate as a
waiver by the Trustee, with respect to the Company, any Guarantor or any holder
of any Subordinated Lien Indebtedness, of the benefit of any exculpatory
provisions, presumptions, indemnities, protections, benefits, immunities or
reliance rights contained in the Indenture, and, by their acknowledgment hereof,
the Company and the Guarantors expressly agree that as between them and the
Trustee, the Trustee shall have such benefit with respect to all actions or
omissions by the Trustee pursuant to this Agreement. For all purposes of this
Agreement, the Trustee may (a) rely in good faith, as to matters of fact, on any
representation of fact believed by the Trustee to be true (without any duty of
investigation) and that is contained in a written certificate of any authorized
representative of the Company or of the Administrative Agent; (b) rely in good
faith, as to matters of law, on any advice received from its legal counsel or an
opinion of its counsel, counsel to the Company or counsel to the Administrative
Agent, and shall have no liability for any action or omission taken in reliance
thereon; and (c) assume in good faith (without any duty of investigation), and
rely upon, the genuineness, due authority, validity, and accuracy of any
certificate, instrument, notice or other document believed by it in good faith
to be genuine and presented by the proper Person.
SECTION 5.14 ADMINISTRATIVE AGENT STATUS. Notwithstanding any
term herein to the contrary, it is hereby expressly agreed and acknowledged that
the agreements set forth herein by the Administrative Agent are made solely in
its capacity as administrative agent and secured party under the Credit Facility
Loan Documents (and not in its individual commercial capacity, except to the
extent that it is or becomes a Credit Facility Lender). The Administrative Agent
shall not have any duties, obligations or responsibilities to the Trustee or any
Holder under this Agreement except as expressly set forth herein. Nothing in
this Agreement shall be construed to operate as a waiver by the Administrative
Agent, with respect to the Company, any Guarantor or any holder of any Credit
Facility Indebtedness, of the benefit of any exculpatory provisions,
presumptions, indemnities, protections, benefits, immunities or reliance rights
contained in the Credit Facility Loan Documents, and, by their acknowledgment
hereof, the Company and the Guarantors expressly agree that as between them and
the Administrative Agent, the Administrative Agent shall have such benefit with
respect to all actions or omissions by the Administrative Agent pursuant to this
Agreement. For all purposes of this Agreement, the Administrative Agent may (a)
rely in good faith, as to matters of fact, on any representation of fact
believed by the Administrative Agent to be true (without any duty of
investigation) and that is contained in a written certificate of any authorized
representative of the Company or of the Trustee; (b) rely in good faith, as to
matters of law, on any advice received from its legal counsel or an opinion of
its counsel, counsel to the Company or counsel to the Trustee, and shall have no
liability for any action or omission taken in reliance thereon; and (c) assume
in good faith (without any duty of investigation), and rely upon, the
genuineness, due authority, validity, and accuracy of any certificate,
instrument, notice or other document believed by it in good faith to be genuine
and presented by the proper Person.
[remainder of page intentionally left blank; signature page follows]
17
IN WITNESS WHEREOF, each Party has caused this Agreement to be
duly executed and delivered as of the date first above written.
ADMINISTRATIVE AGENT:
THE BANK OF NEW YORK, as Administrative Agent
By: /s/ Kristen E. Talabar
-------------------------------
Name: Kristen E. Talabar
Title: Vice President
TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Frank P. Leslie III
-------------------------------
Name: Frank P. Leslie III
Title: Vice President
ACKNOWLEDGMENT
Each of the undersigned hereby acknowledges that (a) it has
received a copy of the foregoing Intercreditor Agreement and consents thereto,
and agrees to recognize all rights granted hereby to the parties thereto, and
will not do any act or perform any obligation which is not in accordance with
the agreements set forth in such Intercreditor Agreement, and (b) it is not an
intended beneficiary or third-party beneficiary under the Intercreditor
Agreement.
Dated as of March 28, 2002.
COMPANY:
PENTON MEDIA, INC.
By: /s/ Thomas L. Kemp
-------------------------------
Name: Thomas L. Kemp
Title: Chairman of the Board and
Chief Executive Officer
GUARANTORS:
DONOHUE MEEHAN PUBLISHING COMPANY
INTERNET WORLD MEDIA, INC.
ONE, INC.
BOARDWATCH, INCORPORATED
PENTON INTERNET, INC.
STREAMING MEDIA, INC.
DUKE INVESTMENTS, INC.
DUKE COMMUNICATIONS INTERNATIONAL, INC.
PTS DELAWARE, INC.
TECH CONFERENCES, INCORPORATED
HEALTHWELL.COM, INC.
By: /s/ Joseph G. NeCastro
-------------------------------
Name: Joseph G. NeCastro
Title: Treasurer
STARDUST.COM
By: /s/ Joseph G. NeCastro
-------------------------------
Name: Joseph G. NeCastro
Title: Chief Financial Officer