Exhibit 10.1
------------
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of November 7, 2006 (this "Amendment") to the
Credit Agreement (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), dated December 22, 2005, among Jupitermedia
Corporation, a Delaware corporation (the "Borrower"), the Lenders party thereto
(the "Lenders"), LaSalle Bank National Association, as syndication agent,
KeyBank National Association, as documentation agent, and JPMorgan Chase Bank,
N.A., as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, certain loans and other extensions of credit to the Borrower;
WHEREAS, the Borrower has requested, and, upon this Amendment becoming
effective, the Lenders have agreed, that certain provisions of the Credit
Agreement be amended as set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendment to Section 1.01 (Defined Terms). The "Consolidated
EBITDA" definition shall be amended by (i) inserting the following new language
in the eleventh line thereof, immediately following the words "but not to exceed
$2,000,000 in the aggregate,":
"plus (e) any extraordinary, unusual or non-recurring expenses or losses
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Adjusted Net Income for such period, losses on
sales of assets outside of the ordinary course of business), and minus any
extraordinary, unusual or non-recurring income or gains (including, whether or
not otherwise includable as a separate item in the statement of such
Consolidated Adjusted Net Income for such period, gains on the sales of assets
outside of the ordinary course of business),"
and (ii) inserting the following sentence at the end thereof:
"For the purposes of determining Consolidated EBITDA for any period during
which there was a disposition of a Person (or part thereof), Consolidated EBITDA
for such period shall be calculated after giving pro forma effect to such
disposition as though it had occurred on the first day of such period."
SECTION 3. Amendment to Section 7.14 (Capital Expenditures). Section 7.14
of the Credit Agreement is hereby amended by deleting such section in its
entirety and substituting in lieu thereof the following:
"Section 7.14 Capital Expenditures. The Borrower will not permit
Consolidated Capital Expenditures for any fiscal year of the Borrower to exceed
(i) $3,500,000, for the fiscal year ending December 31, 2006, (ii) $4,500,000,
for the fiscal year ending December 31, 2007 or (iii) $2,000,000 for each fiscal
year thereafter; provided, that the amount of Consolidated Capital Expenditures
permitted in any fiscal year commencing with the fiscal year ending December 31,
2008 shall be increased by the amount of unused permitted Consolidated Capital
Expenditures for the immediately preceding fiscal year (it being understood
that, for the fiscal year ending December 31, 2008, the amount of such permitted
increase shall equal the excess, if any, of $2,000,000 over the Consolidated
Capital Expenditures for the preceding fiscal year). Consolidated Capital
Expenditures made pursuant to this Section 7.14 shall be deemed made first in
respect of amounts carried over from the previous fiscal year."
SECTION 4. Conditions to Effectiveness of Amendment. The amendments set
forth herein shall become effective on the date upon which each of the following
conditions precedent have been satisfied or waived:
(i) The Administrative Agent (or its counsel) shall have received a
counterpart of this Amendment, executed and delivered by a duly authorized
officer of each of (A) the Borrower and (B) the Required Lenders;
(ii) The Administrative Agent (or its counsel) shall have received a
counterpart of the Acknowledgment and Consent, substantially in the form
attached hereto as Exhibit A, executed and delivered by a duly authorized
officer of each Guarantor;
(iii) The Borrower shall have paid all fees and expenses of the
Administrative Agent, in connection with this Amendment including the
reasonable fees and expenses of counsel to the Administrative Agent; and
(iv) After giving effect to the Amendment, no Default or Event of Default
shall have occurred and be continuing.
SECTION 5. Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of the date hereof as if
made as of the date hereof, except for representations and warranties expressly
stated to relate to a specific earlier date, in which case such representations
and warranties were true and correct in all material respects as of such earlier
date; provided, that each reference to the Credit Agreement therein shall be
deemed to be a reference to the Credit Agreement after giving effect to this
Amendment.
SECTION 6. Effect on the Loan Documents. (a) Except as specifically amended
above, the Credit Agreement and all other Loan Documents shall continue to be in
full force and effect and are hereby in all respects ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of any Lender or the
Administrative Agent under any of the Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents.
SECTION 7. Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transaction contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
SECTION 8. Affirmation of Guaranty and Credit Agreement. The Guarantors
hereby consent to this Amendment and hereby confirm, reaffirm and restate that
their obligations under or in respect of the Credit Agreement and the documents
related thereto to which they are a party are and shall remain in full force and
effect after giving effect to the foregoing Amendment.
SECTION 9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Execution in Counterparts. This Amendment may be executed by
one or more of the parties to this Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
JUPITERMEDIA CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: President
XX XXXXXX XXXXX BANK, N.A., as Administrative
Agent and Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
Name of Institution: LaSalle Bank National Association
by /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: First Vice President
Name of Institution: Key Bank National Association
by /s/ Xxxxxxxx X. X'Xxxxx
------------------------------------------
Name: Xxxxxxxx X. X'Xxxxx
Title: Vice President
Name of Institution: Bank of America, N.A.
by /s/ Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Name of Institution: Citizens Bank of Massachusetts
by /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Name of Institution: The Northern Trust Company
by /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
Name of Institution: Xxxxxxx Bank, N.A.
by /s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
EXHIBIT A
---------
ACKNOWLEDGEMENT AND CONSENT
---------------------------
Each of the undersigned Guarantors hereby acknowledges and consents to the
foregoing Amendment No. 2.
JUPITERIMAGES CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: President & COO
WORKBOOK, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: President & COO
