EXHIBIT 10.31
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Agreement") is entered into as of September 17, 2002, by and among Ziff
Xxxxx Media Inc., a Delaware corporation (the "Borrower"), CIBC World Markets
Corp., as lead arranger and bookrunner (the "Lead Arranger"), Deutsche Bank
Trust Company Americas, as syndication agent (the "Syndication Agent"), Fleet
National Bank, as documentation agent (the "Documentation Agent"), Canadian
Imperial Bank of Commerce, as administrative agent (the "Administrative Agent")
and the other Credit Parties party hereto (the "Credit Parties").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lead Arranger, the Syndication
Agent, the Documentation Agent, the Administrative Agent and the Credit Parties
are parties to that certain Amended and Restated Credit Agreement dated as of
August 12, 2002 (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower has requested, and the Credit Parties
have agreed, to amend the Credit Agreement to the extent set forth herein;
NOW THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement, as amended hereby, except as
otherwise defined or limited herein, and further agree, subject to the
conditions precedent to this Amendment hereinafter set forth, as follows:
1. Amendments to Article 1.
(a) Article 1 of the Credit Agreement, Definitions, is
hereby modified and amended by adding the following new definitions in
appropriate alphabetical order:
"`Parent Guaranty' shall mean that certain Parent Guaranty
Agreement dated as of September 18, 2002, issued by Holdco and
Intermediate Holdco in favor of the Administrative Agent, for the benefit
of the Credit Parties, in substantially the form attached as Exhibit X
attached hereto."
"`Registration Rights Agreement' shall mean that
certain Registration Rights Agreement, dated as of the Agreement Date, by
and among Holdco, the Borrower and the Guarantors (as defined therein)."
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(b) Article 1 of the Credit Agreement, Definitions, is
hereby further modified and amended by deleting the definition of "Exchange
Notes" and by substituting the following in lieu thereof:
"`Exchange Notes' shall mean the Senior Subordinated
Compounding Notes due 2009 issued by the Borrower on the Agreement Date
in an aggregate original principal amount not to exceed $95,000,000,
including any notes issued in replacement or exchange thereof, in
connection with the Exchange Offer, in each case pursuant to the terms
and conditions of the Exchange Notes Indenture and the Registration
Rights Agreement."
(c) Article 1 of the Credit Agreement, Definitions,
is hereby further modified and amended by deleting the definition of "Exchange
Offer Documents" and by substituting the following in lieu thereof:
"`Exchange Offer Documents' shall mean, collectively,
(a) that certain Offer to Exchange, dated as of June 17, 2002, made by
the Borrower and Holdco, (b) the Exchange Notes, (c) the Exchange Notes
Indenture, (d) the Registration Rights Agreement, and (e) all other
documents and agreements executed in connection with consummation of
the Exchange Offer."
(d) Article 1 of the Credit Agreement, Definitions, is
hereby further modified and amended by deleting the proviso at the end of the
definition of "Indebtedness" and by substituting the following in lieu thereof:
"provided, however, that accrued interest on the Exchange Notes
reflected on Holdco's or the Borrower's financial statements arising
out of the `troubled debt accounting' provisions set forth in the
Statement of Financial Accounting Standards No. 15, or any successor
provisions promulgated thereunder, shall be excluded from Indebtedness"
(e) Article 1 of the Credit Agreement, Definitions, is
hereby further modified and amended by inserting the phrase "the Parent
Guaranty," immediately prior to the reference to "the Subsidiary Guaranty" in
the definition of "Security Documents."
2. Amendment to Section 6.1. Section 6.1 of the Credit
Agreement, Monthly Financial Statements and Information, is hereby modified and
amended by (i) deleting the phrase "unaudited balance sheets of the Borrower, on
a consolidated basis with the Restricted Subsidiaries," from the first sentence
and by substituting the phrase "unaudited balance sheets of Holdco, on a
consolidated basis with Intermediate Holdco, the Borrower and the Restricted
Subsidiaries"; (ii) deleting the phrase "the related statements of operations
and the related statements of cash flows of the Borrower, on a consolidated
basis with the Restricted Subsidiaries," from the first sentence and by
substituting the phrase "the related statements of operations and the related
statements of cash flows of Holdco, on a consolidated basis with Intermediate
Holdco, the Borrower and the Restricted Subsidiaries"; and (iii) deleting the
second sentence therefrom and by substituting the following in lieu thereof:
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"The foregoing financial statements shall be certified by a Principal
Officer to be, in his or her opinion, complete and correct in all
material respects and to present fairly in all material respects, in
accordance with GAAP, the financial position of Holdco, on a
consolidated basis with Intermediate Holdco, the Borrower and the
Restricted Subsidiaries and, as applicable, on a consolidating (by
publication) basis, and of LaunchCo and InternetCo, each on a
consolidated basis with its Subsidiaries and, with respect to LaunchCo,
on a consolidating (by publication) basis, as at the end of such period
and the results of operations for such period, and for the elapsed
portion of the year ended with the last day of such period, subject
only to normal year-end adjustments and the absence of footnotes."
3. Amendment to Section 6.2. Section 6.2 of the Credit
Agreement, Quarterly Financial Statements and Information, is hereby modified
and amended by (i) deleting the phrase "unaudited balance sheets of the
Borrower, on a consolidated basis with the Restricted Subsidiaries" from the
first sentence and by substituting the phrase "unaudited balance sheets of
Holdco, on a consolidated basis with Intermediate Holdco, the Borrower and the
Restricted Subsidiaries"; (ii) deleting the phrase "the related statements of
operations and the related statements of cash flows of the Borrower, on a
consolidated basis with the Restricted Subsidiaries" from the first sentence and
by substituting the phrase "the related statements of operations and the related
statements of cash flows of Holdco, on a consolidated basis with Intermediate
Holdco, the Borrower and the Restricted Subsidiaries"; and (iii) deleting the
second sentence therefrom and by substituting the following in lieu thereof:
"The foregoing financial statements shall be certified by a Principal
Officer to be, in his or her opinion, complete and correct in all
material respects and to present fairly in all material respects, in
accordance with GAAP, the financial position of Holdco, on a
consolidated basis with Intermediate Holdco, the Borrower and the
Restricted Subsidiaries and, as applicable, on a consolidating (by
publication) basis, and of LaunchCo and InternetCo, each on a
consolidated basis with its Subsidiaries and, with respect to LaunchCo,
on a consolidating (by publication) basis, as at the end of such period
and the results of operations for such period, and for the elapsed
portion of the year ended with the last day of such period, subject
only to normal year-end adjustments and the absence of footnotes."
4. Amendment to Section 6.3. Section 6.3 of the Credit
Agreement, Annual Financial Statements and Information, is hereby modified and
amended by (i) deleting the phrase "the audited balance sheet of the Borrower,
on a consolidated basis with the Restricted Subsidiaries" from the first
sentence and by substituting the phrase "the audited balance sheets of Holdco,
on a consolidated basis with Intermediate Holdco, the Borrower and the
Restricted Subsidiaries" and (ii) deleting the phrase "the related audited
statement of income and retained earnings or deficit and related statements of
cash flows of the Borrower, on a consolidated basis with the Restricted
Subsidiaries" from the first sentence and by substituting the phrase "the
related audited statement of income and retained earnings or deficit and related
statements of
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cash flows of Holdco, on a consolidated basis with Intermediate Holdco, the
Borrower and the Restricted Subsidiaries."
5. Amendment to Section 7.4. Section 7.4 of the Credit
Agreement, Amendment and Waiver, is hereby modified and amended by deleting the
phrase "the Exchange Notes Documents" and by substituting "the Exchange Offer
Documents" in lieu thereof.
6. Amendment to Section 7.6. Section 7.6 of the Credit
Agreement, Limitation on Guaranties, is hereby modified and amended by (i)
deleting the word "and" immediately prior to clause (e) thereof and (ii)
inserting the phrase ", (f) a guaranty issued by Holdco and/or Intermediate
Holdco, on terms and conditions reasonably satisfactory to the Administrative
Agent, of the obligations of the Borrower in respect of the Refinancing
Securities, and (g) a guaranty issued by Holdco and/or Intermediate Holdco, on
terms and conditions reasonably satisfactory to the Administrative Agent, of the
obligations of the Borrower in respect of the Exchange Notes" immediately after
clause (e) thereof.
7. Amendment to Section 7.9. Section 7.9 of the Credit
Agreement, Business Name; Business Structure; Business, is hereby modified and
amended by deleting items (ii) and (iii) from clause (b) in the first sentence
thereof and by substituting the following in lieu thereof:
"(ii) with respect to Intermediate Holdco, engage in any commercial
business other than holding the Equity Interests of the Borrower and
issuing guaranties of the Obligations and of the Borrower's obligations
in respect of the Exchange Notes and the Refinancing Securities, and
(iii) with respect to Holdco, engage in any commercial business other
than holding the Equity Interests of Intermediate Holdco and issuing
guaranties of the Obligations and of the Borrower's obligations in
respect of the Exchange Notes and the Refinancing Securities"
8. Exhibits to Credit Agreement. Annex A to this Amendment,
Form of Parent Guaranty, is hereby added as Exhibit X, Form of Parent Guaranty,
to the Credit Agreement.
9. No Other Amendments. Except for the amendments expressly
set forth above, the text of the Credit Agreement and the other Loan Documents
shall remain unchanged and in full force and effect, and the Lead Arranger, the
Syndication Agent, the Documentation Agent, the Administrative Agent and the
Credit Parties hereby reserve the right to require strict compliance with the
terms of the Credit Agreement and the other Loan Documents in the future.
10. Reaffirmation. Each of the Borrower Parties acknowledges
and agrees that the security and other interests granted to the Administrative
Agent and the other Credit Parties pursuant to the Loan Documents to which each
respective Borrower Party is a signatory prior to the date hereof shall remain
outstanding and in full force and effect in accordance with the Loan Documents,
and shall continue to secure the Obligations, and that the security and other
interests granted to the Administrative Agent and the other Credit Parties
thereby are hereby ratified, confirmed and continued by execution and delivery
hereof. The Loan Documents shall remain extant and in full force and effect
following the execution and delivery of this
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Amendment and the other Loan Documents executed in connection therewith, and
each of the Borrower Parties hereby ratifies and confirms its respective
obligations thereunder.
11. Conditions to Effectiveness. This Amendment shall be
effective as of the date first written above (the "Effective Date") upon the
Administrative Agent's receipt of (a) a counterpart hereof duly executed by each
of the Borrower Parties and a Lender Addendum duly executed by each of the
Required Lenders as provided in Section 17 of this Amendment, and (b) the Parent
Guaranty duly executed by Holdco and Intermediate Holdco.
12. Post-Closing Covenants. As a further condition to the
amendments set forth herein, upon execution and delivery of any guaranty issued
by Holdco or Intermediate Holdco in respect of the obligations of the Borrower
under either the Refinancing Securities or the Exchange Notes, the Borrower
shall promptly deliver to the Administrative Agent a fully executed copy of such
guaranty and any other documents executed in connection therewith.
13. Representations and Warranties. Each of the Borrower
Parties agrees, represents and warrants in favor of the Lead Arranger, the
Syndication Agent, the Documentation Agent, the Administrative Agent and the
Credit Parties that:
(a) This Amendment has been executed and delivered by duly
authorized representatives of the Borrower Parties, and the Credit Agreement, as
modified and amended by this Amendment, constitutes a legal, valid and binding
obligation of the Borrower and is enforceable against the Borrower in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and by the application of general equitable principles;
(b) After giving effect to this Amendment, no Default or
Event of Default shall have occurred and be continuing; and
(c) No event contemplated in connection with this Amendment
has occurred, which has not been consented to or waived, the occurrence of which
constitutes, or with the passage of time or giving of notice or both would
constitute, a material default by any of the Borrower Parties under any material
indenture, agreement or other instrument, or any judgment, decree or order, to
which any of the Borrower Parties is a party or by which any of the Borrower
Parties or any of their respective properties may be bound or affected.
14. Acknowledgements. The parties hereby acknowledge that
they have not entered into a mutual disregard of the terms and provision of the
Credit Agreement or the other Loan Documents, or engaged in any course of
dealing at variance with the terms and provision of the Credit Agreement or the
other Loan Documents. The Borrower hereby further acknowledges that it shall not
rely upon the existence of or claim or assert that there exists any such course
of dealing or mutual disregard of terms.
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15. Effect on the Credit Agreement. Except as specifically
provided herein, the Credit Agreement shall remain in full force and effect, and
is hereby ratified, reaffirmed and confirmed. This Amendment shall be deemed to
be a Loan Document for all purposes.
16. Counterparts. This Amendment may be executed in any
number of separate counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
17. Delivery of Lender Addenda. Each Credit Party shall
become a party to this Amendment by delivering to the Administrative Agent a
Lender Addendum, substantially in the form of Annex B attached hereto, duly
executed by such Credit Party.
18. Law of Contract. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first written above.
BORROWER: ZIFF XXXXX MEDIA INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------------
Title: Chief Operating Officer and
Chief Financial Officer
----------------------------------
BORROWER PARTIES: ZIFF XXXXX HOLDINGS INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------------
Title: Chief Operating Officer and
Chief Financial Officer
----------------------------------
ZIFF XXXXX INTERMEDIATE HOLDINGS INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
----------------------------------
Title: Chief Operating Officer and
Chief Financial Officer
----------------------------------
ZIFF XXXXX PUBLISHING HOLDINGS INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------------
Title: Chief Operating Officer and
Chief Financial Officer
----------------------------------
ZIFF XXXXX PUBLISHING INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------------
Title: Chief Operating Officer and
Chief Financial Officer
----------------------------------
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
ZIFF XXXXX INTERNET INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------------
Title: Chief Operating Officer and
Chief Finanical Officer
----------------------------------
ZIFF XXXXX DEVELOPMENT INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------------
Title: Chief Operating Officer and
Chief Financial Officer
----------------------------------
LEAD ARRANGER: CIBC WORLD MARKETS CORP.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
SYNDICATION AGENT: DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
DOCUMENTATION AGENT: FLEET NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
----------------------------------
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
ADMINISTRATIVE AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director, CIBC World
Markets Corp., as Agent
ANNEX A
EXHIBIT X
TO
AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF PARENT GUARANTY
[to be provided]
ANNEX B
-------
FORM OF LENDER ADDENDUM
ZIFF XXXXX MEDIA INC.
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF AUGUST 12, 2002
Reference is made to the Amended and Restated Credit
Agreement, dated as of August 12, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among Ziff Xxxxx
Media Inc., as Borrower, CIBC World Markets Corp., as lead arranger and
bookrunner, Deutsche Bank Trust Company Americas, as syndication agent, Fleet
National Bank, as documentation agent, Canadian Imperial Bank of Commerce, as
administrative agent (the "Administrative Agent") and the other Credit Parties
party thereto. Capitalized terms used herein that are not defined herein shall
have the meanings ascribed to them in the Credit Agreement.
The Borrower has requested that the Required Lenders agree to
amend certain provisions of the Credit Agreement, in each case, on the terms and
conditions described in the First Amendment to Amended and Restated Credit
Agreement in the form attached hereto as Exhibit A (the "First Amendment").
By execution and delivery of this Lender Addendum as provided
in Section 17 of the First Amendment, the undersigned Credit Party hereby
consents to and agrees with all of the terms and conditions contained in the
First Amendment.
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[SIGNATURE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Lender
Addendum to be duly executed and delivered by their proper and duly authorized
officers as of this ___ day of September, 2002.
----------------------------------------
(NAME OF CREDIT PARTY)
By:
-------------------------------------
Name:
Title:
EXHIBIT A
TO
ANNEX B
COPY OF FIRST AMENDMENT
[see attached]
