Exhibit 4.2
REVISED EXECUTION COPY
AMENDMENT AND RESTATEMENT AGREEMENT dated as
of January 23, 2003, among AMERICAN MEDIA OPERATIONS,
INC., a Delaware corporation (the "Borrower"),
AMERICAN MEDIA, INC., a Delaware corporation
("Holdings"), the Lenders party hereto and JPMORGAN
CHASE BANK, as Administrative Agent under the Credit
Agreement dated as of May 7, 1999, as amended and
restated as of May 21, 2002, among the Borrower,
Holdings, the lenders referred to therein and the
Administrative Agent, as in effect on the date hereof
(the "Existing Credit Agreement").
WHEREAS Holdings and the Borrower have requested, and the
Required Restatement Lenders and the Administrative Agent have agreed, upon the
terms and subject to the conditions set forth herein, that (a) the Tranche C-1
Lenders extend credit in the form of Tranche C-1 Term Loans on the Restatement
Effective Date, in an aggregate principal amount not to exceed $140,000,000
outstanding on such date and (b) the Existing Credit Agreement be amended and
restated as provided herein;
NOW, THEREFORE, Holdings, the Borrower, the Required
Restatement Lenders and the Administrative Agent hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Restated
Credit Agreement referred to below. As used in this Agreement, "Required
Restatement Lenders" means, at any time, (i) Lenders under the Existing Credit
Agreement having Revolving Exposures, Tranche A Term Loans, Tranche C Term Loans
and unused Revolving Commitments representing more than 50% of the sum of the
total Revolving Exposures, outstanding Tranche A Term Loans, outstanding Tranche
C Term Loans and unused Revolving Commitments at such time, and (ii) each of the
Tranche C-1 Lenders set forth on Schedule 1 hereto.
SECTION 2. Restatement Effective Date. (a) The transactions
provided for in Sections 3 through 5 hereof shall be consummated at a closing to
be held on the Restatement Effective Date at the offices of Cravath,
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Swaine & ▇▇▇▇▇, or at such other time and place as the parties hereto shall
agree upon.
(b) The "Restatement Effective Date" shall be specified by the
Borrower, and shall be a date not later than January 23, 2003, as of which all
the conditions set forth or referred to in Section 6 hereof shall have been
satisfied. The Borrower shall give not less than one Business Day's written
notice proposing a date as the Restatement Effective Date to the Administrative
Agent, which shall send copies of such notice to the Lenders. This Agreement
shall terminate at 5:00 p.m., New York City time, on January 23, 2003, if the
Restatement Effective Date shall not have occurred at or prior to such time.
SECTION 3. Tranche C-1 Term Loans. (a) Subject to the terms
and conditions set forth herein, each Tranche C-1 Lender agrees to make a
Tranche C-1 Term Loan to the Borrower on the Restatement Effective Date in a
principal amount not exceeding the Tranche C-1 Term Loan Commitment set forth
for such Tranche C-1 Lender on Schedule 1 hereto. The Tranche C-1 Term Loans
shall be made on the Restatement Effective Date as ABR Borrowings in accordance
with Section 2.06 of the Restated Credit Agreement referred to below.
(b) Unless the Administrative Agent shall have received notice
from a Tranche C-1 Lender prior to the Restatement Effective Date that such
Tranche C-1 Lender will not make available to the Administrative Agent such
Tranche C-1 Lender's share of such Tranche C-1 Borrowing, the Administrative
Agent may assume that such Tranche C-1 Lender has made such share available on
such date in accordance with this Section. The Borrower agrees that if any
Tranche C-1 Lender shall default in the payment of any amount due from it under
this Section, then the applicable Tranche C-1 Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such defaulted
amount (to the extent so advanced by the Administrative Agent on behalf of such
defaulting Tranche C-1 Lender), together with interest on such amount at the
interest rate applicable to ABR Loans from the Restatement Effective Date to the
date of payment. Upon any such payment by the Borrower, the Borrower shall have
the right, at the defaulting Tranche C-1 Lender's expense, upon notice to the
defaulting Tranche C-1 Lender and to the Administrative Agent, to require such
defaulting Tranche C-1
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Lender to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in Section 9.04 of the Restated Credit Agreement)
all, or the relevant portion of, its interests, rights and obligations under the
Restated Credit Agreement to another financial institution which shall assume
such interests, rights and obligations; provided that no such assignment shall
conflict with any law, rule or regulation or order of any Governmental
Authority.
SECTION 4. Amendment and Restatement of the Existing Credit
Agreement; Loans and Letters of Credit. (a) Effective upon the Restatement
Effective Date, the Existing Credit Agreement is hereby amended and restated to
read in its entirety as set forth in Exhibit A hereto (the "Restated Credit
Agreement"), and the Administrative Agent is hereby directed by the Required
Restatement Lenders to enter into such Loan Documents and to take such other
actions as may be required to give effect to the transactions contemplated
hereby. From and after the effectiveness of such amendment and restatement, the
terms "Agreement", "this Agreement", "herein", "hereinafter", "hereto", "hereof"
and words of similar import, as used in the Restated Credit Agreement, shall,
unless the context otherwise requires, refer to the Existing Credit Agreement as
amended and restated in the form of the Restated Credit Agreement, and the term
"Credit Agreement", as used in the other Loan Documents, shall mean the Restated
Credit Agreement.
(b) All Tranche A Term Loans, Tranche C Term Loans, Revolving
Loans, Swingline Loans and Letters of Credit outstanding under the Existing
Credit Agreement on the Restatement Effective Date shall continue to be
outstanding under the Restated Credit Agreement and the terms of the Restated
Credit Agreement will govern the rights of the Lenders and the Issuing Bank with
respect thereto.
SECTION 5. Amendment of Security Agreement. The Required
Restatement Lenders hereby consent to the amendments to the Security Agreement
set forth in the Section 1.03 of the Reaffirmation Agreement.
SECTION 6. Waivers. (a) The Required Restatement Lenders
hereby waive the requirements of Section 6.01 of the Existing Credit Agreement
to the extent, but only to the extent, necessary to permit the Borrower (i) to
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incur the Tranche C-1 Term Loans and make Borrowings thereunder and (ii) to
issue the New Senior Subordinated Notes.
(b) The Required Restatement Lenders hereby waive the
requirements of Section 6.04 of the Existing Credit Agreement to the extent, but
only to the extent, necessary to permit the Borrower to effect the Weider
Acquisition on the Restatement Effective Date.
(c)(i) The Required Restatement Lenders hereby waive any
failure, prior to the date hereof, of the Grantors (as defined in the Security
Agreement) to promptly inform the Collateral Agent of the filing of an
application for any Patent, Trademark or Copyright (or for the registration of
any Trademark or Copyright) with the United States Patent and Trademark Office,
United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof. For purposes of this Section 6(c), the terms "Patent",
"Trademark" and "Copyright" shall have the meanings set forth in the Security
Agreement.
(d) Subject to Section 5.13(f) of the Amended and Restated
Credit Agreement, the Required Restatement Lenders hereby waive the requirement
that Weider Publications pledge any of its Equity Interests in (a) Pan Asia
Publishing Co., Ltd., a Taiwanese limited liability company, or (b) Onshelf
Investment Sixty Five (Ptu) Ltd., a South African limited liability company,
pursuant to Section 1 of the Pledge Agreement.
SECTION 7. Conditions. The consummation of the transactions
set forth in Sections 3 through 6 of this Agreement shall be subject to the
satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have
received from Holdings, the Borrower and each Required Restatement
Lender either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy or other electronic transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
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(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Restatement Effective Date) of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Borrower, substantially in the form of
Exhibit B-1 hereto, and covering such other matters relating to the
Loan Parties, the Loan Documents or the Restatement Transactions as the
Required Restatement Lenders shall reasonably request. The Borrower
hereby requests such counsel to deliver such opinion.
(c) 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 Restatement
Transactions and any other legal matters relating to the Loan Parties,
the Loan Documents or the Restatement Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Restatement Effective Date and signed by the
President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a)
and (b) of Section 4.01 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Restatement Effective
Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel) required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.
(f) The Collateral Agent shall have received executed
supplements to the Pledge Agreement from each Subsidiary Loan Party
formed in connection with or resulting from the Weider Acquisition,
together with certificates (if any) representing all the outstanding
Equity Interests of the Borrower and each Subsidiary owned by or on
behalf of any Loan Party as of the Restatement Effective Date after
giving effect to the
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Restatement Transactions (except that stock certificates representing
shares of common stock of a Foreign Subsidiary shall be limited to 65%
of the outstanding shares of common stock of such Foreign Subsidiary),
promissory notes evidencing all intercompany Indebtedness owed to any
Loan Party by Holdings, the Borrower or any Subsidiary as of the
Restatement Effective Date after giving effect to the Restatement
Transactions and stock powers and instruments of transfer, endorsed in
blank, with respect to any such stock certificates and promissory
notes.
(g) The Collateral Agent shall have received executed
supplements to the Security Agreement from each Subsidiary Loan Party
formed in connection with or resulting from the Weider Acquisition,
together with the following:
(i) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or
reasonably requested by the Collateral Agent to be filed,
registered or recorded to create or perfect the Liens intended
to be created under the Security Agreement after giving effect
to the Restatement Transactions;
(ii) a completed Perfection Certificate (excluding
information relating to any registered copyrights (a) that
were acquired, directly or indirectly, by a Loan Party in
connection with the Weider Acquisition and (b) either (i) that
were not disclosed to any Loan Party by the seller in
connection with the Weider Acquisition or (ii) with respect to
which no Loan Party has knowledge, as of the Restatement
Effective Date, of registration) dated the Restatement
Effective Date and signed by an executive officer or Financial
Officer of the Borrower, together with all attachments
contemplated thereby; and
(iii) the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to
the Loan Parties (including the Subsidiaries party to the
Reaffirmation Agreement) in the jurisdictions contemplated by
the Perfection Certificate delivered in connection
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with the Amendment and Restatement Agreement and copies of the
financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Collateral
Agent that the Liens indicated by such financing statements
(or similar documents) are permitted by the Security Agreement
or have been released or terminated at the Borrower's sole
cost and expense.
(h) The Administrative Agent shall have received executed
supplements to each of the Guarantee Agreement and the Indemnity,
Subrogation and Contribution Agreement from each Subsidiary Loan Party
formed in connection with or resulting from the Weider Acquisition.
(i) The Administrative Agent shall have received evidence that
the insurance required by Section 5.07 of the Restated Credit Agreement
and the Security Documents is in effect.
(j) All material consents and approvals required to be
obtained from any Governmental Authority or other Person in connection
with the Weider Acquisition shall have been obtained, and all
applicable waiting periods and appeal periods shall have expired, in
each case without the imposition of any burdensome conditions.
(k) The Weider Acquisition shall have been consummated or
shall be consummated simultaneously with or immediately following the
initial funding of the Tranche C-1 Term Loans on the Restatement
Effective Date in all material respects in accordance with applicable
law and the Purchase and Contribution Agreement and all other related
documentation (without giving effect to any amendment or waiver not
approved by the Administrative Agent), the Borrower shall hold 100% of
all the Equity Interests in Weider Publications (it being understood
that in the event the Equity Interests in Weider Publications purchased
with the membership interests in EMP Group L.L.C. are initially held by
EMP Group L.L.C. or one of its affiliates other than the Borrower, EMP
Group L.L.C. shall have caused or shall concurrently cause such Equity
Interests in Weider Publications to be contributed to the Borrower as
an equity contribution), and the Required
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Restatement Lenders shall be reasonably satisfied with any material
changes to the capitalization, structure and equity ownership of
Holdings, the Borrower and their respective subsidiaries, after giving
effect to the Transactions, from the capitalization, structure and
equity ownership that are set forth in the information previously
supplied to the Lenders with respect thereto.
(l) The Borrower shall have received gross cash proceeds of
not less than $41,250,000 from the Additional Equity Contribution and
of not less than $150,000,000 from the issuance of the New Senior
Subordinated Notes. Any terms and conditions of the New Senior
Subordinated Notes (including, but not limited to, terms and conditions
relating to interest rates, subordination, fees, amortization,
maturity, covenants, redemption, events of default and remedies) that
are inconsistent with or in addition to those previously approved by
the Administrative Agent shall be reasonably satisfactory in all
respects to the Administrative Agent (such satisfaction to be evidenced
by the Administrative Agent's execution of this Agreement if and to the
extent that such terms and conditions have been communicated to the
Administrative Agent prior to the execution of this Agreement).
(m) The Administrative Agent and the Lenders shall have
received unaudited combined consolidated balance sheets and related
statements of income and cash flows of WPI and its subsidiaries and WIN
for the nine month period ended as of September 30, 2002 (which shall
have been reviewed by the independent accountants of WPI and WIN as
provided in Statement of Accounting Standards No. 71), in each case
prepared in accordance with Regulation S-X under the Securities Act of
1933.
(n) The Weider Acquisition will not result in any additional
Indebtedness of Holdings, the Borrower or any of their respective
Subsidiaries, other than the New Senior Subordinated Notes, the Tranche
C-1 Term Loans and the limited Indebtedness agreed upon between the
Borrower and the Administrative Agent as set forth on a Schedule
6.01(a)(viii) to the Restated Credit Agreement.
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(o) A Reaffirmation Agreement substantially in the form of
Exhibit C hereto shall have been executed and delivered by each party
thereto.
The Administrative Agent shall notify the Borrower and the Lenders of the
Restatement Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the consummation of the transactions set forth in
Sections 3 through 6 of this Agreement and the obligations of the Tranche C-1
Lenders to make Tranche C-1 Term Loans hereunder shall not become effective
unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 8 below) at or prior to 5:00 p.m., New York City time, on January 23,
2003 (and, in the event such conditions are not so satisfied or waived, the
Tranche C-1 Commitments shall terminate at such time and the Existing Credit
Agreement shall remain in effect without giving effect to any provisions of this
Agreement).
SECTION 8. Effectiveness; Counterparts; Amendments. This
Agreement shall become effective when copies hereof which, when taken together,
bear the signatures of Holdings, the Borrower, the Administrative Agent and the
Required Restatement Lenders shall have been received by the Administrative
Agent. This Agreement may not be amended nor may any provision hereof be waived
except pursuant to a writing signed by Holdings, the Borrower, the
Administrative Agent and the Required Restatement Lenders. This Agreement may be
executed in two or more counterparts, each of which shall constitute an original
but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 9. No Novation. This Agreement shall not extinguish
the Loans outstanding under the Existing Credit Agreement. Nothing herein
contained shall be construed as a substitution or novation of the Loans
outstanding under the Existing Credit Agreement, which shall remain outstanding
after the Restatement Effective Date as modified hereby. Notwithstanding any
provision of this Agreement, the provisions of Sections 2.15, 2.16, 2.17 and
9.03 of the Existing Credit Agreement as in effect immediately prior to the
Restatement Effective Date will continue to be effective as to all matters
arising out of or in any way related to
10
facts or events existing or occurring prior to the Restatement Effective Date.
SECTION 10. Notices. All notices hereunder shall be given in
accordance with the provisions of Section 9.01 of the Restated Credit Agreement.
SECTION 11. APPLICABLE LAW; WAIVER OF JURY TRIAL. (A) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION
9.10 OF THE RESTATED CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL
HEREIN EXCEPT THAT THE TERM "AGREEMENT" THEREIN SHALL BE DEEMED TO REFER TO THIS
AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first written above.
AMERICAN MEDIA, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior VP & General
Counsel
AMERICAN MEDIA OPERATIONS,
INC.,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior VP & General
Counsel
JPMORGAN CHASE BANK, formerly
known as The Chase Manhattan
Bank, individually and as
Administrative Agent,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SENIOR DEBT PORTFOLIO
by Boston Management and
Research as Investment Advisor
by /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
12
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME
TRUST
by ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL
SENIOR LOAN FUND
by ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
OXFORD STRATEGIC INCOME FUND
by ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇ CDO III, LTD.
by ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
13
▇▇▇▇▇ ▇▇▇▇▇ CDO IV, LTD.
by ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
COSTANTINUS ▇▇▇▇▇ ▇▇▇▇▇ CDO V,
LTD.
by ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ & CO.
by Boston Management and
Research as Investment Advisor
by /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
BIG SKY SENIOR LOAN FUND, LTD.
by ▇▇▇▇▇ ▇▇▇▇▇ Management as
Investment Advisor
by /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
KZH CRESCENT LLC
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
14
KZH CRESCENT 2 LLC
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
KZH CRESCENT 3 LLC
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
KZH ING 2 LLC
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
KZH RIVERSIDE LLC
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Authorized Agent
KZH SOLEIL LLC
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Authorized Agent
15
KZH SOLEIL -2 LLC
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
KZH PONDVIEW LLC
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
KZH STERLING LLC
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
KZH WATERSIDE LLC
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
State Street Bank & Trust as
Trustee for GENERAL MOTORS
WELFARE BENEFITS TRUST
by /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇ s
Title: Assistant Vice
President
MAGNETITE ASSET INVESTORS, LLC
by /s/ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
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MAGNETITE IV CLO, LIMITED
by /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
AERIES FINANCE-II LTD.
by INVESCO Senior Secured
Management, Inc., as sub-
managing agent
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
AMARA-I FINANCE, LTD.
by INVESCO Senior Secured
Management, Inc., as financial
advisor
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
AMARA 2 FINANCE, LTD.
by INVESCO Senior Secured
Management, Inc., as financial
advisor
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
17
AVALON CAPITAL LTD.
by INVESCO Senior Secured
Management, Inc., as portfolio
advisor
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
AVALON CAPITAL LTD. 2
by INVESCO Senior Secured
Management, Inc., as portfolio
advisor
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
CERES II FINANCE LTD.
by INVESCO Senior Secured
Management, Inc., as sub-
managing agent (financial)**
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
18
OASIS COLLATERALIZED HIGH
INCOME PORTFOLIOS-1, LTD.
by INVESCO Senior Secured
Management, Inc., as
subadvisor
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
CHARTER VIEW PORTFOLIO
by INVESCO Senior Secured
Management, Inc., as
investment advisor
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
DIVERSIFIED CREDIT PORTFOLIO
LTD.
by INVESCO Senior Secured
Management, Inc., as
investment advisor
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
19
AIM FLOATING RATE FUND
by INVESCO Senior Secured
Management, Inc., as attorney
in fact
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
INVESCO EUROPEAN CDO I S.A.
by INVESCO Senior Secured
Management, Inc., as
collateral manager
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
INVESCO CBO 2000-I LTD.
by INVESCO Senior Secured
Management, Inc., as portfolio
advisor
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
SEQUILS-LIBERTY, LTD.
by INVESCO Senior Secured
Management, Inc., as
collateral manager
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
20
SARATOGA CLO I, LIMITED
by INVESCO Senior Secured
Management, Inc., as asset
manager
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
GALLATIN FUNDING I, LTD.
by Bear ▇▇▇▇▇▇▇ Asset
Management Inc. as its
Collateral Manager
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
NUVEEN SENIOR INCOME FUND
by Symphony Asset Management
LLC
by /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS
II, LLC
by Octagon Credit Investors,
LLC as subinvestment manager
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Portfolio Manager
21
OCTAGON INVESTMENT PARTNERS
III, LTD.
by Octagon Credit Investors,
LLC as subinvestment manager
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS
IV, LTD.
by Octagon Credit Investors,
LLC as collateral manager
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS V,
LTD.
by Octagon Credit Investors,
LLC as portfolio manager
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Portfolio Manager
FRANKLIN FLOATING RATE TRUST
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice
President
22
FRANKLIN FLOATING RATE DAILY
ACCESS FUND
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice
President
FRANKLIN CLO II, LIMITED
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice
President
APEX (TRIMARAN) CDO I, LTD.
by: Trimaran Advisors, L.L.C.
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
TUSCANY CDO, LIMITED
by: PPM America, Inc., as
Collateral Manager
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
GENERAL ELECTRIC CAPITAL
CORPORATION
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Duly Authorized
Signatory
23
▇▇▇▇▇▇ FINANCIAL, INC.
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Duly Authorized
Signatory
AMMC CDO I, LIMITED
by: American Money Management
Corp., as Collateral Agent
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
AMMC CDO II, LIMITED
by: American Money Management
Corp., as Collateral Agent
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
GALAXY CLO 1999-I, LTD.
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
ADDISON CDO, LIMITED
by Pacific Investment
Management Company LLC, as its
Investment Advisor
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President
24
CAPTIVA III FINANCE LTD.
(Acct. 275), as advised by
Pacific Investment Management
Company, LLC
by /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director
CAPTIVA IV FINANCE LTD. (Acct.
1275), as advised by Pacific
Investment Management Company,
LLC
by /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director
SEQUILS-MAGNUM, LTD. (#1280)
by Pacific Investment
Management Company LLC, as its
Investment Advisor
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President
WRIGLEY CDO, LTD. (#1285)
by Pacific Investment
Management Company LLC, as its
Investment Advisor
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President
25
NOMURA BOND & LOAN FUND
by UFJ Trust Company of New
York as Trustee
By Nomura Corporate Research
and Asset Management Inc.
Attorney In Fact
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
by ING Investments, LLC as its
investment manager
by /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Senior Vice
President
SEQUILS - PILGRIM I, LTD.
by ING Investments, LLC as its
investment manager
by /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Senior Vice
President
26
ML CLO XII PILGRIM AMERICA
(CAYMAN) LTD.
by ING Investments, LLC as its
investment manager
by /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Senior Vice
President
ML CLO XX PILGRIM AMERICA
(CAYMAN) LTD.
by ING Investments, LLC as its
investment manager
by /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Senior Vice
President
ING SENIOR INCOME FUND
by ING Investments, LLC as its
investment manager
by /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Senior Vice
President
SKM-LIBERTYVIEW CBO I, LTD.
by /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized
Signatory
27
CENTURION CDO VI, LTD.
by American Express Asset
Management Group, Inc. as
Collateral Manager
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director-Operations
SEQUILS - CENTURION V, LTD.
by American Express Asset
Management Group, Inc. as
Collateral Manager
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director-Operations
CENTURION CDO II, LTD.
by American Express Asset
Management Group, Inc. as
Collateral Manager
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director-Operations
IDS LIFE INSURANCE COMPANY
by American Express Asset
Management Group, Inc. as
Collateral Manager
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Managing
Director
28
AMERICAN EXPRESS CERTIFICATE
COMPANY
by American Express Asset
Management Group, Inc. as
Collateral Manager
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Managing
Director
THE BANK OF NEW YORK
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME INCOME
TRUST
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CAISSE DE DEPOT ET PLACEMENT
DU QUEBEC
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
by /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Director
29
▇▇▇ ▇▇▇▇▇▇ CLO II, LIMITED
by ▇▇▇ ▇▇▇▇▇▇ Investment
Advisory Corp As Collateral
Manager
by /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
by ▇▇▇ ▇▇▇▇▇▇ Investment
Advisory Corp As Collateral
Manager
by /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ SENIOR FLOATING
RATE FUND
by ▇▇▇ ▇▇▇▇▇▇ Investment
Advisory Corp
by /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
by ▇▇▇ ▇▇▇▇▇▇ Investment
Advisory Corp
by /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
30
Sankaty Advisors, LLC as
Collateral Manager for GREAT
POINT CLO 1999-1 LTD., as Term
Lender
by /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: Managing Director
Portfolio Manager
Sankaty Advisors, LLC as
Collateral Manager for RACE
POINT CLO, LIMITED, as Term
Lender
by /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: Managing Director
Portfolio Manager
SANKTAY HIGH YIELD PARTNERS
III, L.P.
by /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: Managing Director
Portfolio Manager
C-SQUARED CDO LTD.
by: TCW Advisors, Inc., as its
Portfolio Manager
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
31
TCW SELECT LOAN FUND, LIMITED
by: TCW Advisors, Inc., as its
Collateral Manager
by /s/ ▇▇▇▇ L Gold
----------------------------
Name: ▇▇▇▇ L Gold
Title: Managing Director
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
SEQUILS I, LTD.
by: TCW Advisors, Inc., as its
Collateral Manager
by /s/ ▇▇▇▇ L Gold
----------------------------
Name: ▇▇▇▇ L Gold
Title: Managing Director
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
SEQUILS IV, LTD.
by: TCW Advisors, Inc., as its
Collateral Manager
by /s/ ▇▇▇▇ L Gold
----------------------------
Name: ▇▇▇▇ L Gold
Title: Managing Director
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
32
FLEET NATIONAL BANK
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SAWGRASS TRADING LLC
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice
President
HARBOUR TOWN FUNDING LLC
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice
President
PINEHURST TRADING, INC.
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice
President
PPM SPYGLASS FUNDING TRUST
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Agent
PPM SHADOW CREEK FUNDING LLC
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice
President
33
TORONTO DOMINION (NEW YORK),
INC.
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ CLO LTD. 2000-I
by: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company
Inc. as Collateral Manager
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
ELC (CAYMAN) LTD. 2000-I
by: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company
Inc. as Collateral Manager
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
APEX (IDM) CDO I, LTD.
by: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company
Inc. as Collateral Manager
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
34
CITIGROUP INVESTMENTS
CORPORATE LOAN FUND INC.
by Travelers Asset Management
International Company LLC
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Investment Officer
COLUMBUS LOAN FUNDING LTD.
by Travelers Asset Management
International Company LLC
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Investment Officer
CARLYLE HIGH YIELD PARTNERS
IV, LTD.
by
----------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
(CHICAGO)
by
----------------------------
Name:
Title:
HEWETTT'S ISLAND CDO, LTD.
by
----------------------------
Name:
Title:
35
SCHEDULES AND EXHIBITS
Schedules
Schedule 1 -- Tranche C-1 Commitments
Exhibits
Exhibit A -- Amended and Restated Credit Agreement
Exhibit B-1 -- Form of Opinion of Simpson, Thacher & ▇▇▇▇▇▇▇▇, Special Counsel
for the Borrower
Exhibit C -- Form of Reaffirmation Agreement
EXHIBIT A
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
January 23, 2003,
among
AMERICAN MEDIA, INC.,
AMERICAN MEDIA OPERATIONS, INC.,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK,
as Administrative Agent
---------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Arranger and Bookrunner
[CSM Ref. No. 6700-719]
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms............................................. 1
SECTION 1.02. Classification of Loans
and Borrowings............................................ 41
SECTION 1.03. Terms Generally........................................... 41
SECTION 1.04. Accounting Terms; GAAP; Treatment
of Unrestricted Subsidiaries.............................. 42
ARTICLE II
The Credits
SECTION 2.01. Commitments............................................... 43
SECTION 2.02. Loans and Borrowings...................................... 43
SECTION 2.03. Requests for Borrowings................................... 44
SECTION 2.04. Swingline Loans........................................... 45
SECTION 2.05. Letters of Credit......................................... 47
SECTION 2.06. Funding of Borrowings..................................... 53
SECTION 2.07. Interest Elections........................................ 54
SECTION 2.08. Termination and Reduction
of Commitments............................................ 56
SECTION 2.09. Repayment of Loans; Evidence of Debt...................... 57
SECTION 2.10. Amortization of Term Loans................................ 58
SECTION 2.11. Prepayment of Loans....................................... 61
SECTION 2.12. Fees...................................................... 64
SECTION 2.13. Interest.................................................. 65
SECTION 2.14. Alternate Rate of Interest................................ 66
SECTION 2.15. Increased Costs........................................... 67
SECTION 2.16. Break Funding Payments.................................... 69
SECTION 2.17. Taxes..................................................... 70
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Setoffs........................................ 72
SECTION 2.19. Mitigation Obligations; Replacement
of Lenders................................................ 74
i
Page
----
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers...................................... 76
SECTION 3.02. Authorization; Enforceability............................. 76
SECTION 3.03. Governmental Approvals; No Conflicts...................... 76
SECTION 3.04. Financial Condition; No
Material Adverse Change................................... 77
SECTION 3.05. Properties................................................ 79
SECTION 3.06. Litigation and Environmental Matters...................... 80
SECTION 3.07. Compliance with Laws and Agreements....................... 81
SECTION 3.08. Investment and Holding Company Status..................... 81
SECTION 3.09. Taxes..................................................... 82
SECTION 3.10. ERISA..................................................... 82
SECTION 3.11. Disclosure................................................ 82
SECTION 3.12. Subsidiaries.............................................. 83
SECTION 3.13. Insurance................................................. 83
SECTION 3.14. Labor Matters............................................. 83
SECTION 3.15. Solvency.................................................. 84
SECTION 3.16. Senior Indebtedness....................................... 84
SECTION 3.17. Security Documents........................................ 84
SECTION 3.18. Weider Acquisition........................................ 86
SECTION 3.19. Capitalization of Holdings................................ 86
ARTICLE IV
Conditions
SECTION 4.01. Each Credit Event......................................... 87
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and
Other Information......................................... 88
SECTION 5.02. Notices of Material Events................................ 90
SECTION 5.03. Information Regarding Collateral.......................... 91
SECTION 5.04. Existence; Conduct of Business............................ 92
SECTION 5.05. Payment of Obligations.................................... 92
SECTION 5.06. Maintenance of Properties................................. 93
SECTION 5.07. Insurance................................................. 93
SECTION 5.08. Casualty and Condemnation................................. 93
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SECTION 5.09. Books and Records; Inspection
and Audit Rights.......................................... 93
SECTION 5.10. Compliance with Laws...................................... 94
SECTION 5.11. Use of Proceeds and Letters of Credit..................... 94
SECTION 5.12. Additional Subsidiaries................................... 95
SECTION 5.13. Further Assurances........................................ 95
SECTION 5.14. Interest Rate Protection.................................. 98
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity
Securities................................................ 99
SECTION 6.02. Liens..................................................... 101
SECTION 6.03. Fundamental Changes....................................... 102
SECTION 6.04. Investments, Loans, Advances,
Guarantees and Acquisitions .............................. 105
SECTION 6.05. Asset Sales............................................... 107
SECTION 6.06. Sale and Leaseback Transactions........................... 108
SECTION 6.07. Hedging Agreements........................................ 109
SECTION 6.08. Restricted Payments; Certain
Payments of Indebtedness ................................. 109
SECTION 6.09. Transactions with Affiliates.............................. 112
SECTION 6.10. Restrictive Agreements.................................... 112
SECTION 6.11. Amendment of Material Documents........................... 113
SECTION 6.12. Leverage Ratio............................................ 114
SECTION 6.13. Senior Leverage Ratio..................................... 114
SECTION 6.14. Consolidated Interest Expense
Coverage Ratio ........................................... 115
SECTION 6.15. Consolidated Fixed Charge
Coverage Ratio ........................................... 115
SECTION 6.16. Capital Expenditures...................................... 116
ARTICLE VII
Events of Default........................................................ 116
ARTICLE VIII
The Agents............................................................... 120
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices................................................... 123
SECTION 9.02. Waivers; Amendments....................................... 124
SECTION 9.03. Expenses; Indemnity; Damage Waiver........................ 126
SECTION 9.04. Successors and Assigns.................................... 128
SECTION 9.05. Survival.................................................. 133
SECTION 9.06. Counterparts; Integration;
Effectiveness ............................................ 133
SECTION 9.07. Severability.............................................. 134
SECTION 9.08. Right of Setoff........................................... 134
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process ....................................... 134
SECTION 9.10. WAIVER OF JURY TRIAL...................................... 135
SECTION 9.11. Headings.................................................. 136
SECTION 9.12. Confidentiality........................................... 136
SECTION 9.13. Interest Rate Limitation.................................. 137
SECTION 9.14. Existing Credit Agreement; Effectiveness
of Amendment and Restatement ............................. 137
SCHEDULES:
---------
Schedule 1.01(a) -- Mortgaged Property
Schedule 1.01(b) -- Restatement Mortgaged
Schedule 2.01 -- Commitments
Schedule 3.05(b) -- Intellectual Property
Schedule-- Real Property
Schedule 3.05(d) -- Real Property Purchase
Schedule -- Disclosed Matters
Schedule 3.12 -- Subsidiaries Schedule-- Insurance
Schedule 3.17(d) -- Mortgaged Property Filing Offices
Schedule Existing Indebtedness
Schedule 6.01(a)(viii) -- Weider Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Investments
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
--------
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Guarantee Agreement
iv
Exhibit C -- Indemnity, Subrogation and Contribution
Agreement
Exhibit D -- Pledge Agreement
Exhibit E -- Security Agreement
v
AMENDED AND RESTATED CREDIT AGREEMENT dated as of
January 23, 2003, among AMERICAN MEDIA INC., AMERICAN
MEDIA OPERATIONS, INC., the LENDERS party hereto, and
JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), as Administrative Agent.
WHEREAS, Holdings, the Borrower, the lenders party thereto and
JPMorgan Chase Bank, as administrative agent, are parties to a Credit Agreement
dated as of May 7, 1999 (the "Original Credit Agreement"), as amended and
restated as of May 21, 2002 (as amended, the "Existing Credit Agreement"), as in
effect immediately prior to the Restatement Effective Date (as defined herein);
WHEREAS, Holdings, the Borrower, the Required Restatement
Lenders (as defined therein) and JPMorgan Chase Bank, as administrative agent,
are parties to an Amendment and Restatement Agreement dated as of January 23,
2003 (the "Amendment and Restatement Agreement");
WHEREAS, subject to the satisfaction of the conditions set
forth on the Amendment and Restatement Agreement, the Existing Credit Agreement
shall be amended and restated as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms have the meanings specified below:
"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.
"Acquired Businesses" means the stock of GCC and the assets
and liabilities of GII to be acquired pursuant to the Purchase Agreement.
"Acquisition" means the Merger and the other transactions
contemplated by the Merger Agreement and the other Acquisition Documents.
"Acquisition Documents" means the Merger Agreement and the LLC
Agreement.
"Additional Equity Contribution" means the contribution to
Holdings by EMP Group L.L.C. or one or more of its affiliates or other persons
reasonably acceptable to the Administrative Agent of $41,250,000 in cash in
exchange for additional membership interests in Holdings, the cash proceeds of
which Holdings will contribute to the Borrower as an additional equity
contribution.
"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 JPMorgan Chase Bank, 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.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) 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, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
2
"Amendment and Restatement Agreement" has the meaning given
such term in the recitals hereto.
"Applicable Percentage" means, with respect to any Revolving
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.
"Applicable Rate" means, for any day (a) with respect to any
ABR Loan or Eurodollar Loan that is a Tranche C Term Loan or a Tranche C-1 Term
Loan (i) 1.75% per annum, in the case of an ABR Loan, or (ii) 2.75% per annum,
in the case of a Eurodollar Loan, and
(b) with respect to any ABR Loan or Eurodollar Loan that is a Revolving
Loan or a Tranche A Term Loan or any ABR Loan that is a Swingline Loan, or with
respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption "ABR Spread",
"Eurodollar Spread" or "Commitment Fee Rate", as the case may be, based upon the
Leverage Ratio as of the most recent determination date:
ABR Eurodollar Commitment Fee
Leverage Ratio: Spread Spread Rate
--------------- ------ ------ ----
Category 1
Greater than or equal 2.00% 3.00% 0.50%
to 5.50 to 1.00
Category 2
Less than 5.50 to 1.00
but greater than or 1.75% 2.75% 0.50%
equal to 5.00 to 1.00
Category 3
Less than 5.00 to 1.00
but greater than or 1.50% 2.50% 0.50%
equal to 4.50 to 1.00
Category 4
Less than 4.50 to 1.00
but greater than or 1.25% 2.25% 0.50%
equal to 4.00 to 1.00
Category 5
Less than 4.00 to 1.00
but greater than or 1.00% 2.00% 0.375%
equal to 3.50 to 1.00
3
Category 6 0.75% 1.75% 0.375%
Less than 3.50 to 1.00
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change; provided
that the Leverage Ratio shall be deemed to be in Category 1 (A) at any time that
an Event of Default has occurred and is continuing or (B) at the option of the
Administrative Agent or at the request of the Required Lenders if the Borrower
fails to deliver the consolidated financial statements required to be delivered
by it pursuant to Section 5.01(a) or (b) during the period from the expiration
of the time for delivery thereof until such consolidated financial statements
are delivered.
"Approved Fund" has the meaning set forth in Section 9.04.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
4
"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 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Base CD Rate" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means American Media Operations, Inc.,
a Delaware corporation.
"Borrowing" means (a) Loans of the same Class and 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 Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"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" means, for any period, without
duplication, (a) the additions to property, plant and equipment and other
capital expenditures of the Borrower and its Restricted Subsidiaries that are
(or would be) set forth in a consolidated statement of cash flows of the
Borrower and its Restricted Subsidiaries for such period prepared in accordance
with GAAP and (b) Capital Lease Obligations incurred by the Borrower and its
Restricted Subsidiaries during such period.
"Capital Lease Obligations" of any Person means
the obligations of such Person to pay rent or other amounts
5
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)(i) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person other than Holdings of any
Equity Interest in the Borrower (other than up to 20% of the common
stock of the Borrower held by Persons other than Holdings in accordance
with Section 6.03(e)), (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the board
of directors of Holdings (together with any new directors whose
election by such board of directors of Holdings or whose nomination for
election by the stockholders of Holdings was approved by a vote of at
least 66-2/3% of the directors of Holdings then still in office who
were either directors at the beginning of such period or whose
nomination for election was previously so approved) ceasing for any
reason to constitute a majority of the board of directors of Holdings,
or (iii) the occurrence of a "Change of Control", as defined in the
Subordinated Debt Documents or the Holdings Discount Notes Documents;
(b) prior to the first public offering of common Equity
Interests of Holdings, EMP Group L.L.C. ceasing to be the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of a majority in the aggregate of the total
voting power of the voting Equity Interests of Holdings, whether as a
result of issuance of securities of Holdings, any merger,
consolidation, liquidation or dissolution of Holdings, any direct or
indirect transfer of securities by EMP Group L.L.C. or otherwise (for
purposes of this clause (b) and clause (c) below, EMP Group L.L.C.
shall be deemed to beneficially own any voting Equity Interests of an
entity (the "specified entity") held by any other entity (the
6
"Holdings entity") so long as EMP Group L.L.C. beneficially owns (as so
defined), directly or indirectly, in the aggregate a majority of the
voting power of the voting Equity Interests of the Holdings entity);
(c)(i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than EMP Group L.L.C., being or
becoming the beneficial owner (as defined in clause (b) above, except
that for purposes of this clause (c) such person shall be deemed to
have "beneficial ownership" of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 30% of
the total voting power of the voting Equity Interests of Holdings and
(ii) EMP Group L.L.C. "beneficially owning" (as defined in clause (b)
above), directly or indirectly, in the aggregate a lesser percentage of
the total voting power of the voting Equity Interests of Holdings than
such other person and not having the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of
the board of directors of Holdings (for the purposes of this clause
(c), such other person shall be deemed to beneficially own any voting
Equity Interests of a specified entity held by a Holdings entity, if
such other person is the beneficial owner (as defined in this clause
(c)), directly or indirectly, of more than 30% of the voting power of
the voting Equity Interests of such Holdings entity and EMP Group
L.L.C. "beneficially owns" (as defined in clause (b) above), directly
or indirectly, in the aggregate a lesser percentage of the voting power
of the voting Equity Interests of such Holdings entity and does not
have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the board of directors of
such Holdings entity); or
(d) Evercore no longer having the direct or indirect power to
appoint a majority of the managers of (or other individuals comprising)
the board of managers or other governing body of EMP Group L.L.C.
7
"Change in Law" means (a) the adoption of any law, rule or
regulation after the Effective Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Effective Date or (c) compliance by any Lender or the
Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such
Lender or by such Lender's or the Issuing Bank'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 Effective Date.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Tranche A Term Loans, Tranche C Term Loans, Tranche C-1 Term
Loans or Swingline Loans and, when used in reference to any Commitment, refers
to whether such Commitment is a Revolving Commitment, Tranche A Commitment,
Tranche C Commitment or Tranche C-1 Commitment.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agent" means the "Collateral Agent", as defined in
the Security Agreement.
"Commitment" means a Revolving Commitment, Tranche A
Commitment, Tranche C Commitment or Tranche C-1 Commitment, or any combination
thereof (as the context requires).
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period (adjusted to exclude any extraordinary losses, charges or
gains and to exclude any gain or loss recognized in connection with the sale of
any assets outside the ordinary course of business), plus, without duplication
and to the extent deducted from revenues in determining Consolidated Net Income,
the sum of (a) the aggregate amount of interest expense for such period, (b) the
aggregate amount of income tax expense for such period, (c) all amounts
attributable to depreciation,
8
amortization and other noncash charges (excluding any such charge that (i)
consists of or requires an accrual of, or cash reserve for, any anticipated cash
charges for any prior or in any future period or (ii) consists of a writedown or
writeoff of any current assets) for such period, including the amortization of
debt discounts and deferred financing charges, all as determined on a
consolidated basis with respect to the Borrower and the Restricted Subsidiaries
in accordance with GAAP, (d) the aggregate amount of management fees paid to
Affiliates of the Borrower in such period pursuant to Section 6.09, (e) payments
made by the Borrower and its Restricted Subsidiaries in such period pursuant to
profit sharing plans; provided that such payments are discretionary under the
terms of such plans, (f) the aggregate amount, not to exceed $5,000,000, of
nonrecurring charges resulting from severance, restructuring, corporate
relocation expenses and other adjustments made as a result of or in connection
with the Transactions and recognized on or prior to the date that is 18 months
subsequent to the Effective Date, (g) any nonrecurring cash expenses or charges
(not exceeding $5,000,000 in the aggregate for such period) related to any
initial public offering, investment, Permitted Acquisition or Indebtedness and
(h) the aggregate amount, not to exceed $5,000,000, of charges, to the extent
incurred, resulting from the anthrax incident (as described in the Borrower's
Quarterly Report on Form 10-Q for the quarter ending December 24, 2001 filed
with the Securities and Exchange Commission on February 5, 2002) at the
Borrower's former Boca Raton, Florida headquarters recognized on or prior to
October 7, 2004, and minus the amount of any Restricted Payments made to
Holdings by the Borrower pursuant to Section 6.08(a)(iv) (as such amount may be
supplemented in accordance with Section 6.08(a)(ix)) during such period to the
extent of any losses, charges or expenses that reduced Holdings' net income (or
increased its net loss) during such period. For purposes of calculating
Consolidated EBITDA for any period (each, a "Reference Period") in connection
with a determination of the Leverage Ratio or the Senior Leverage Ratio for such
period, if during such Reference Period (or, in the case of pro forma
calculations, during the period from the last day of such Reference Period to
and including the date as of which such calculation is made) the Borrower or any
Restricted Subsidiary shall have made a Material Disposition or Material
Acquisition, Consolidated EBITDA for such Reference
9
Period shall be calculated after giving pro forma effect thereto as if such
Material Disposition or Material Acquisition occurred on the first day of such
Reference Period (with the Reference Period for the purposes of pro forma
calculations being the most recent period of four consecutive fiscal quarters
for which the relevant financial information is available); provided that such
pro forma calculations shall give effect to operating expense reductions and
other cost savings only to the extent that such reductions and savings are
approved by the Administrative Agent and realization thereof is reasonably
expected by the Borrower to be achieved within six months after such Material
Acquisition or Material Disposition. As used in this definition, "Material
Acquisition" means any Permitted Acquisition or series of related Permitted
Acquisitions that involves consideration (including any noncash consideration)
with a fair market value in excess of $5,000,000 and the Weider Acquisition; and
"Material Disposition" means any disposition of property or series of related
dispositions of property that involves assets comprising all or substantially
all of an operating unit of a business or constitutes all or substantially all
of the Equity Interests of a Subsidiary.
"Consolidated Fixed Charges" means, for any period, the sum of
(a) Consolidated Interest Expense for such period, (b) the aggregate amount of
scheduled principal payments of Long-Term Indebtedness made during such period
by the Borrower or any Restricted Subsidiary to any Person other than the
Borrower or any wholly owned Restricted Subsidiary and (c) the aggregate amount
of scheduled principal payments of Long-Term Indebtedness that would have been
required to be made during such period by the Borrower or any Restricted
Subsidiary to the extent any such scheduled payment is not required to be made
by reason of any optional prepayment (other than an optional prepayment to the
extent financed with the proceeds of an incurrence of Long-Term Indebtedness)
made within one year prior to the date such scheduled principal payment would
have been due.
"Consolidated Interest Expense" means, for any period, the sum
of (a) interest expense (including the interest component in respect of Capital
Lease Obligations but excluding the amortization of debt discounts, deferred
financing charges and other non-cash interest expenses) of
10
the Borrower and the Restricted Subsidiaries during such period, determined on a
consolidated basis in accordance with GAAP, and (b) the amount of any Restricted
Payments made by the Borrower to Holdings pursuant to Section 6.08(a)(viii)(B)
during such period.
"Consolidated Net Income" means, for any period, net income or
loss of the Borrower and the Restricted Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income of any Person in which any other Person (other than the
Borrower or any of the Restricted Subsidiaries or any director holding
qualifying shares in compliance with applicable law) has an ownership interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Borrower or any of the Restricted Subsidiaries by such Person during
such period, and (b) the income (or loss) of any Person accrued prior to the
date it becomes a Restricted Subsidiary or is merged into or consolidated with
the Borrower or any of the Restricted Subsidiaries or the date that Person's
assets are acquired by the Borrower or any of the Restricted Subsidiaries.
"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. "Controlling" and "Controlled" have meanings correlative thereto.
"Debt Tender Offer" means the tender offer and consent
solicitation made by the Borrower for all the outstanding Existing Notes
pursuant to the Debt Tender Offer Materials and the provisions of the Merger
Agreement.
"Debt Tender Offer Materials" means the offer to purchase
distributed by the Borrower to holders of the Existing Notes with respect to the
Debt Tender Offer, and all related materials similarly distributed in accordance
with this Agreement.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse
11
of time or both would, unless cured or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"Disqualified Stock" means, with respect to any Person, any
Equity Interest which by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event:
(a) matures or is mandatorily redeemable pursuant
to a sinking fund obligation or otherwise;
(b) is convertible or exchangeable for Indebtedness or
Disqualified Stock (excluding Equity Interests convertible or
exchangeable solely at the option of Holdings, the Borrower or a
Restricted Subsidiary; provided that any such conversion or exchange
shall be deemed an issuance of Disqualified Stock, as applicable); or
(c) is redeemable, or subject to mandatory purchase by
Holdings, the Borrower or any Subsidiary, at the option of the holder
thereof, in whole or in part.
"dollars" or "$" refers to lawful money of the
United States of America.
"Effective Date" means May 7, 1999, the date on which the
conditions specified in Section 4.01 of the Original Credit Agreement were
satisfied.
"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 or the management, release or threatened release of any Hazardous
Material.
12
"Environmental Liability" means any liability, loss, cost or damage,
contingent or otherwise (including any liability, loss, cost or damage for
environmental remediation, fines, penalties or indemnities), of Holdings, the
Borrower or any Subsidiary 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 within or upon any building,
structure, facility or fixture 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 Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"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, 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.
"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 of its ERISA
Affiliates 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
13
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 of its
ERISA Affiliates 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
VII.
"Evercore" means Evercore Partners Inc. and any investment fund
Controlled by Evercore Partners Inc.
"Excess Cash Flow" means, for any fiscal year, the sum (without
duplication) of:
(a) Consolidated Net Income for such fiscal year, adjusted to
exclude any gains or losses attributable to Prepayment Events; plus
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such Consolidated Net Income for such fiscal year;
plus
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal year plus (ii) the net amount, if any, by
which the long- term consolidated deferred revenues of the Borrower and
its Restricted Subsidiaries increased during such fiscal year; minus
(d) the sum of (i) any noncash gains included in determining such
Consolidated Net Income for such fiscal year plus (ii) the amount, if any,
by which Net
14
Working Capital increased during such fiscal year plus (iii) the net
amount, if any, by which the long-term consolidated deferred revenues of
the Borrower and its Restricted Subsidiaries decreased during such fiscal
year; minus
(e) the sum of (i) Capital Expenditures for such fiscal year (except
to the extent attributable to the incurrence of Capital Lease Obligations
or otherwise financed by incurring Long-Term Indebtedness or attributable
to the reinvestment of Net Proceeds of a Prepayment Event) plus (ii) cash
consideration paid during such fiscal year to make acquisitions or other
capital investments (except to the extent financed by incurring Long-Term
Indebtedness or attributable to the reinvestment of Net Proceeds of a
Prepayment Event); minus
(f) the aggregate principal amount of Long-Term Indebtedness repaid
or prepaid by the Borrower and its Restricted Subsidiaries during such
fiscal year, excluding (i) Indebtedness in respect of Swingline Loans,
Revolving Loans and Letters of Credit, (ii) Term Loans prepaid pursuant to
Section 2.11(c) or (d) and (iii) repayments or prepayments of Long-Term
Indebtedness financed by incurring other Long-Term Indebtedness.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (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
Lender, 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 described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending
15
office), 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 the Borrower with respect to any
withholding tax pursuant to Section 2.17(a), or (ii) is attributable to such
Foreign Lender's failure to comply with Section 2.17(e).
"Existing Credit Agreement" has the meaning given such term in the
recitals hereto.
"Existing Notes" means the 11-5/8% Senior Subordinated Notes due
2004 of the Borrower.
"Existing Notes Indenture" means the Indenture dated as of November
1, 1994, between the Borrower (f/k/a Enquirer/Star, Inc.) and United States
Trust Company of New York, as trustee, as amended pursuant to the Debt Tender
Offer.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for 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.
"Financing Transactions" means the transactions undertaken by
Holdings, the Borrower and the Subsidiary Loan Parties in connection with the
execution and delivery of the Original Credit Agreement, the Existing Credit
Agreement, the Subordinated Debt Documents in respect of each of the 1999 Senior
Subordinated Notes and the 2002 Senior Subordinated Notes, the issuance of the
1999 Senior Subordinated Notes and the 2002 Senior Subordinated Notes,
16
and the borrowing of the Loans and the Issuance of Letters of Credit under the
Original Credit Agreement and the Existing Credit Agreement.
"Florida Property" has the meaning set forth in Section 5.13(c).
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower 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.
"Foreign Subsidiary" means any Subsidiary that is organized under
the laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GCC" means Globe Communications Corp., a Delaware corporation.
"GII" means Globe International Inc., a corporation incorporated
under the laws of Canada.
"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 advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to
17
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 so 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.
"Guarantee Agreement" means the Guarantee Agreement, entered into in
connection with the Original Credit Agreement, attached hereto as Exhibit B,
among Holdings, the Subsidiary Loan Parties and the Collateral 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, anthrax and anthrax-causing
agents, 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 hedging arrangement.
"Holdings" means American Media, Inc., a Delaware corporation.
"Holdings Discount Notes" means discount notes of Holdings (a) that
are issued on a single date that is after the Effective Date, (b) with an
initial aggregate accreted value of up to $25,000,000, (c) with respect to which
no cash interest shall be payable until the fifth anniversary of issuance and
cash interest shall be payable semi-annually after such fifth anniversary, (d)
that mature no earlier
18
than the tenth anniversary of issuance and do not require any amortization or
other required redemption or repayment prior to maturity (other than redemption
on the fifth anniversary of issuance of a portion of such discount notes not
exceeding the Holdings Discount Notes Redemption Amount at a redemption price of
100% of the principal amount so redeemed), (e) that are not Guaranteed by the
Borrower or any Subsidiary, (f) the Net Proceeds of the issuance of which are
contributed as common equity to the Borrower and (g) that have such other terms
and conditions (including with respect to covenants and events of default) that
(i) are customary for high-yield discount notes issued by holding companies and
(ii) are approved by the Administrative Agent.
"Holdings Discount Notes Documents" means the indenture under which
the Holdings Discount Notes are issued and all other instruments, agreements and
other documents evidencing or governing the Holdings Discount Notes or providing
for any other right in respect thereof.
"Holdings Discount Notes Redemption Amount" means the amount equal
to (a)(i) the excess of the aggregate accreted value of Holdings Discount Notes
on the fifth anniversary of the date of their issuance over (ii) the aggregate
accreted value of the Holdings Discount Notes on the date of their issuance,
less (b) an amount equal to simple interest for one year on the aggregate
accreted value of the Holdings Discount Notes on the date of their issuance at a
per annum rate equal to the yield to maturity of such Holdings Discount Notes.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (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, (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
19
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 and (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. 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.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement, entered into in connection
with the Original Credit Agreement, attached hereto as Exhibit C, among the
Borrower, the Subsidiary Loan Parties and the Administrative Agent.
"Information Memorandum" means the Confidential Information
Memorandum dated January 2003 relating to the Borrower and the Restatement
Transactions.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of
20
such Interest Period, and (c) with respect to any Swingline Loan, the day that
such 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, two, three or
six months thereafter (or nine or twelve months thereafter if, at the time of
the relevant Borrowing, all Lenders participating therein agree to make interest
periods of such duration available), as the Borrower may elect; provided that
(a) 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
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
(b) any Interest Period 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 such Borrowing is made
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Issuing Bank" means JPMorgan Chase Bank, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"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
21
Revolving Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01, the Persons
listed on Schedule 1 to the Amendment and Restatement Agreement, the Persons
listed on Schedule 1 to the 2002 Amendment and Restatement Agreement, the
Persons listed with a commitment to make a Tranche A Term Loan on Schedule 1 to
the Original Credit Agreement 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 pursuant to
this Agreement.
"Leverage Ratio" means, on any date, the ratio of (a) Total Debt as
of such date to (b) Consolidated EBITDA for the period of four consecutive
fiscal quarters ended on such date (or, solely for purposes of determining the
Applicable Rate, two times Consolidated EBITDA for the period of two consecutive
fiscal quarters ended on such date), all determined on a consolidated basis in
accordance with GAAP.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office
22
of the Administrative Agent in immediately available funds in the London
interbank market 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 (or any
financing lease having substantially the same economic effect as any of the
foregoing) 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.
"LLC Agreement" means the Amended and Restated Limited Liability
Company Agreement and Investors Rights Agreement of EMP Group L.L.C. dated as of
February 16, 1999.
"Loan Documents" means this Agreement, the Amendment and Restatement
Agreement, the Reaffirmation Agreement, the Guarantee Agreement, the Indemnity,
Subrogation and Contribution Agreement and the Security Documents.
"Loan Parties" means Holdings, the Borrower and the Subsidiary Loan
Parties.
"Loan Transactions" means the execution, delivery and performance by
each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement, the 2002 Amendment and Restatement Agreement or the Amendment
and Restatement Agreement.
"Long-Term Indebtedness" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
For purposes of Section 5.14, "Long-Term Indebtedness" shall not include
Indebtedness in respect of Revolving Loans.
23
"Management Agreement" means the Side Letter dated February 16, 1999
among the members of EMP Group L.L.C.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U of the Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of Holdings,
the Borrower and the Restricted Subsidiaries taken as a whole, (b) the ability
of any Loan Party to perform any of its obligations under any Loan Document or
(c) the rights of or benefits available to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Holdings, the Borrower and its Restricted Subsidiaries in
an aggregate principal amount exceeding $5,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of Holdings,
the Borrower or any Restricted Subsidiary in respect of any Hedging Agreement at
any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that Holdings, the Borrower or such Restricted Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"Merger" means the merger of Merger Sub with and into Holdings, with
Holdings as the surviving corporation, pursuant to the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger, dated as
of February 16, 1999, by and between Holdings and Merger Sub.
"Merger Sub" means EMP Acquisition Corp., a Delaware corporation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property or Restatement Mortgaged Property to secure the Obligations.
24
Each Mortgage shall be satisfactory in form and substance to the Collateral
Agent.
"Mortgaged Property" means, initially, each parcel of real property
and the improvements thereto owned by a Loan Party and identified on Schedule
1.01(a), and includes each other parcel of real property and improvements
thereto with respect to which a Mortgage is granted pursuant to Section 5.12 or
5.13.
"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, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by Holdings, the
Borrower and the Restricted Subsidiaries to third parties (other than
Affiliates) in connection with such event, (ii) in the case of a sale, transfer
or other disposition of an asset (including pursuant to a sale and leaseback
transaction or a casualty or a condemnation or similar proceeding), the amount
of all payments required to be made by Holdings, the Borrower and the Restricted
Subsidiaries as a result of such event to repay Indebtedness (other than Loans)
secured by such asset or otherwise subject to mandatory prepayment as a result
of such event, and (iii) the amount of all taxes paid (or reasonably estimated
to be payable) by Holdings, the Borrower and the Restricted Subsidiaries, and
the amount of any reserves established by Holdings, the Borrower and the
Restricted Subsidiaries to fund contingent liabilities 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).
"Net Working Capital" means, at any date, (a) the consolidated
current assets of the Borrower and its consolidated Restricted Subsidiaries as
of such date (excluding cash and Permitted Investments) minus (b) the
25
consolidated current liabilities of the Borrower and its consolidated Restricted
Subsidiaries as of such date (excluding current liabilities in respect of
Indebtedness). Net Working Capital at any date may be a positive or negative
number. Net Working Capital increases when it becomes more positive or less
negative and decreases when it becomes less positive or more negative.
"New Senior Subordinated Notes" means the Senior Subordinated Notes
due 2011 issued by the Borrower in connection with the Restatement Transactions
in the aggregate principal amount of $150,000,000 and the Indebtedness
represented thereby.
"1999 Restatement Acquisition" means the acquisition by the Borrower
of all the outstanding shares of capital stock of GCC and certain of the assets
and liabilities of GII pursuant to the Purchase Agreement and the other
transactions contemplated by the Purchase Agreement and the execution and
performance of the Non- Compete Agreement.
"1999 Senior Subordinated Notes" means the Senior Subordinated Notes
due 2009 issued by the Borrower on the Effective Date in the aggregate principal
amount of $250,000,000 and the Indebtedness represented thereby.
"Non-Compete Agreement" means the Non-Compete Agreement dated as of
November 1, 1999 among ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and the Borrower.
"Obligations" has the meaning assigned to such term in the Security
Agreement.
"Original Credit Agreement" has the meaning given such term in the
recitals hereto.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
26
"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 II
to the Security Agreement or any other form approved by the Collateral Agent.
"Permitted Acquisition" means any acquisition by the Borrower or any
Restricted Subsidiary of all or substantially all the assets of, or all the
Equity Interests in, a Person or division or line of business of a Person if,
immediately after giving effect thereto, (a) no Default has occurred and is
continuing or would result therefrom, (b) the principal business of such Person
shall be reasonably related, ancillary or complementary, to a business in which
the Borrower and its Restricted Subsidiaries were engaged on the Effective Date,
(c) each Subsidiary formed for the purpose of or resulting from such acquisition
shall be a Restricted Subsidiary and all of the Equity Interests of each such
Subsidiary shall be owned directly by the Borrower or a Restricted Subsidiary of
the Borrower and all actions required to be taken with respect to such acquired
or newly formed Subsidiary under Sections 5.12 and 5.13 have been taken, (d) the
Borrower and its Restricted Subsidiaries are in compliance, on a pro forma basis
after giving effect to such acquisition (and any operating expense reductions
related thereto that would be permitted to be deducted in any calculation of
Consolidated EBITDA in accordance with the definition of such term contained
herein), with the covenants contained in Sections 6.12, 6.13, 6.14 and 6.15
(based on the required compliance level for September 27, 1999, in the case of
an acquisition made prior to such date) recomputed as at the last day of the
most recently ended fiscal quarter of the Borrower for which financial
statements are available, as if such acquisition had occurred on the first day
of each relevant period for testing such compliance and (e) the Borrower has
delivered to the Administrative Agent an officers' certificate to the effect set
forth in clauses (a), (b), (c) and (d) above, together with all relevant
financial information for the Person or assets to be acquired and reasonably
detailed calculations demonstrating satisfaction of the requirement set forth in
clause (d) above.
27
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) 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 5.05;
(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 VII; 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;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
28
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above; and
(e) money market funds that (i) comply with the criteria set forth
in Securities and Exchange Commission Rule 2a-7 under the Investment
Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody's and
(iii) have portfolio assets of at least $5,000,000,000.
"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 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.
29
"Pledge Agreement" means the Pledge Agreement, entered into in
connection with the Original Credit Agreement, attached hereto as Exhibit D,
among the Loan Parties and the Collateral Agent for the benefit of the Secured
Parties.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Borrower
or any Restricted Subsidiary, other than (i) dispositions described in
clauses (a) and (b) of Section 6.05 and (ii) any other disposition (or
series of related dispositions) as to which the Net Proceeds do not exceed
$500,000; or
(b) 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 Restricted Subsidiary, but only
to the extent that the Net Proceeds therefrom have not been applied to
repair, restore or replace such property or asset within 360 days after
such event; or
(c) the issuance by Holdings, the Borrower or any Restricted
Subsidiary of any Equity Interests, or the receipt by Holdings, the
Borrower or any Restricted Subsidiary of any capital contribution, other
than (i) any such issuance of Equity Interests to, or receipt of any such
capital contribution from, Holdings, the Borrower or a Restricted
Subsidiary or (ii) any such issuance (including in connection with the
Additional Equity Contribution) of Equity Interests by Holdings in a
private placement; or
(d) the incurrence by Holdings, the Borrower or any Restricted
Subsidiary of any Indebtedness, other than Indebtedness permitted by
Section 6.01.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective
30
from and including the date such change is publicly announced as being
effective.
"Purchase Agreement" means the Stock and Asset Purchase Agreement
dated as of November 1, 1999, among ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Globe International
Publishing Inc., GII, EMP Group L.L.C. and the Borrower.
"Purchase and Contribution Agreement" means the Purchase and
Contribution Agreement by and among Weider Health and Fitness, Weider Health and
Fitness, LLC, WIN, Weider Publications, EMP Group L.L.C. and the Borrower dated
as of November 26, 2002.
"Reaffirmation Agreement" means the Reaffirmation and Amendment
Agreement, entered into in connection with the Amendment and Restatement
Agreement, attached thereto as Exhibit C, among the Borrower, Holdings, the
other Reaffirming Parties (as defined therein) and JPMorgan Chase Bank, as the
Administrative Agent and Collateral Agent.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, trustees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Restatement Effective Date" has the meaning given such term in the
Amendment and Restatement Agreement.
"Restatement Mortgaged Property" means each parcel of real property
and the improvements thereto owned by a Loan Party as a result of the 1999
Restatement Acquisition and identified on Schedule 1.01(b).
"Restatement Transactions" means the execution and delivery of the
Amendment and Restatement Agreement by each
31
Person party thereto, the satisfaction of the conditions to the effectiveness
thereof, and the consummation of the transactions contemplated thereby,
including (a) the borrowing of Tranche C-1 Term Loans, (b) the issuance of the
New Senior Subordinated Notes, (c) the consummation of the Additional Equity
Contribution and (d) the consummation of the Weider Acquisition.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Holdings, the Borrower or any Restricted Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any Subordinated Debt or any Equity
Interests in Holdings, the Borrower or any Restricted Subsidiary or any option,
warrant or other right to acquire any such Equity Interests in Holdings, the
Borrower or any Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary, including any
Subsidiary acquired or formed in connection with or as a result of the 1999
Restatement Acquisition or the Weider Acquisition, that is not an Unrestricted
Subsidiary.
"Revolving 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.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01 (as of the
Restatement Effective Date), or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Revolving Commitment, as
32
applicable. The initial aggregate amount of the Lenders' Revolving Commitments
is $60,000,000.
"Revolving Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to the first sentence of
Section 2.01.
"Revolving Maturity Date" means April 1, 2006.
"S&P" means Standard & Poor's Ratings Services.
"Secured Parties" has the meaning assigned to such term in the
Security Agreement.
"Security Agreement" means the Security Agreement, entered into in
connection with the Original Credit Agreement, attached hereto as Exhibit E,
among the Borrower, Holdings, the Subsidiary Loan Parties and the Collateral
Agent for the benefit of the Secured Parties.
"Security Documents" means the Security Agreement, the Pledge
Agreement, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to Section 5.12 or 5.13 to secure
any of the Obligations.
"Senior Leverage Ratio" means, on any date, the ratio of (a) Total
Senior Debt as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters ended on such date, all determined on a consolidated
basis in accordance with GAAP.
"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
33
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for new
negotiable nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Adjusted LIBO
Rate, 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 Debt" means (a) the 1999 Senior Subordinated Notes,
(b) the 2002 Senior Subordinated Notes, (c) the New Senior Subordinated Notes,
(d) any senior subordinated notes having substantially the same terms as the
1999 Senior Subordinated Notes, the 2002 Senior Subordinated Notes or the New
Senior Subordinated Notes issued in exchange therefor and (e) any subordinated
notes issued to refinance Indebtedness constituting "Subordinated Debt"
described in this definition; provided, that such subordinated notes issued to
refinance such Subordinated Debt (i) shall not increase the aggregate principal
amount of the Subordinated Debt outstanding, (ii) shall mature no earlier than
the Subordinated Debt being refinanced, (iii) shall have no scheduled principal
payments due prior to maturity, (iv) shall bear interest at a rate no greater
than the rate available in the market for subordinated notes at the time of such
refinancing for subordinated notes with terms and conditions and a maturity
comparable to the subordinated notes issued to refinance such Subordinated Debt
and (v) shall have other terms and conditions no less favorable to the Borrower
and the Lenders than the Subordinated Debt being refinanced.
"Subordinated Debt Documents" means any indenture under which any
Subordinated Debt was or is issued and all other instruments, agreements and
other documents evidencing or governing any Subordinated Debt or providing for
any Guarantee or other right in respect thereof.
34
"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 (a) 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, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower. For
purposes of all representations and warranties made herein on the Restatement
Effective Date and for purposes of all conditions set forth in the Amendment and
Restatement Agreement, the term "Subsidiary" shall be construed to include any
subsidiary of the Borrower acquired or formed in connection with or as a result
of the Weider Acquisition.
"Subsidiary Loan Party" means any Restricted Subsidiary that
is not a Foreign Subsidiary.
"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 JPMorgan Chase Bank, in its capacity
as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
35
"Term Loans" means Tranche A Term Loans, Tranche C Term Loans
and the Tranche C-1 Term Loans.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Total Assets" means, as of any date of determination, the
total consolidated assets of the Borrower and the Restricted Subsidiaries as of
the end of the most recent fiscal quarter for which financial statements have
been delivered pursuant to clause (a) or (b) of Section 5.01, determined on a
consolidated basis in accordance with GAAP.
"Total Debt" means, as of any date of determination, the
aggregate principal amount of Indebtedness (excluding Indebtedness consisting of
contingent liabilities in respect of undrawn letters of credit) of the Borrower
and the Restricted Subsidiaries outstanding as of such date, determined on a
consolidated basis in accordance with GAAP.
"Total Senior Debt" means, as of any date of determination,
(a) Total Debt as of such date minus (b) the portion of Total Debt as of such
date represented by the Subordinated Debt and Existing Notes.
"Tranche A Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Tranche A Term Loan pursuant to
clause (a) of Section 2.01
36
of the Original Credit Agreement. The initial aggregate amount of the Lenders'
Tranche A Commitments was $100,000,000.
"Tranche A Lender" means a Lender with an outstanding Tranche
A Term Loan.
"Tranche A Maturity Date" means April 1, 2006.
"Tranche A Term Loan" means a Loan made on the Effective Date
pursuant to clause (a) of Section 2.01 of the Original Credit Agreement. The
aggregate principal amount of the Tranche A Term Loans outstanding on the
Restatement Effective Date is $7,755,656.12.
"Tranche B Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Tranche B Term Loan pursuant to
clause (b) of Section 2.01 of the Original Credit Agreement.
"Tranche B Lender" means a Lender with an outstanding Tranche
B Term Loan.
"Tranche B Term Loan" means a Loan made on the Effective Date
pursuant to clause (b) of Section 2.01 of the Original Credit Agreement.
"Tranche B-1 Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make a Tranche B-1 Term Loan pursuant
to clause (a) of Section 2.01 of the Original Credit Agreement.
"Tranche B-1 Term Loan" means a loan made on November 1, 1999
pursuant to clause (a) of Section 2.01 of the Original Credit Agreement.
"Tranche C Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender under the 2002 Amendment and Restatement
Agreement to make a Tranche C Term Loan on the 2002 Restatement Effective Date
pursuant to the 2002 Amendment and Restatement Agreement.
"Tranche C Lender" means a Lender with an outstanding Tranche
C Term Loan.
37
"Tranche C Maturity Date" means April 1, 2007.
"Tranche C Term Loan" means a Loan made pursuant to Section 3
of the 2002 Amendment and Restatement Agreement.
"Tranche C-1 Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender under the Amendment and Restatement
Agreement to make a Tranche C- 1 Term Loan on the Restatement Effective Date in
an amount up to the amount set forth opposite such Lender's name on Schedule 1
to the Amendment and Restatement Agreement. The initial aggregate amount of the
Lenders' Tranche C-1 Commitments is $140,000,000.
"Tranche C-1 Lender" means a Lender with a Tranche C-1
Commitment or an outstanding Tranche C-1 Term Loan.
"Tranche C-1 Maturity Date" means April 1, 2007.
"Tranche C-1 Term Loan" means a Loan made pursuant to Section
3 of the Amendment and Restatement Agreement.
"Transactions" means the Restatement Transactions, the Loan
Transactions and the Financing Transactions.
"2002 Amendment and Restatement Agreement" means the Amendment
and Restatement Agreement dated as of May 21, 2002 between Holdings, the
Borrower, the Required Restatement Lenders (as defined therein) and JPMorgan
Chase Bank, as administrative agent.
"2002 Restatement Effective Date" means the "Restatement
Effective Date" as defined in the 2002 Amendment and Restatement Agreement.
"2002 Senior Subordinated Notes" means the Senior Subordinated
Notes due 2009 issued by the Borrower on February 14, 2002 in the aggregate
principal amount of $150,000,000 and the Indebtedness represented thereby.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such
38
Loan, or on the Loans comprising such Borrowing, is determined by reference to
the Adjusted LIBO Rate or the Alternate Base Rate.
"Unrestricted Subsidiary" means (a) any Subsidiary of the
Borrower that shall have been designated an Unrestricted Subsidiary by the
Borrower in the manner provided below and (b) any Subsidiary of an Unrestricted
Subsidiary. The Borrower may designate any Subsidiary (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary if (i)
neither such Subsidiary nor any of its Subsidiaries owns any Equity Interests or
Indebtedness of, or holds any Lien on any property of, Holdings, the Borrower or
any other Restricted Subsidiary, (ii) after giving effect to such designation,
the Borrower shall be in compliance with clause (d) of Section 6.04 (it being
understood that, for purposes of determining such compliance, all investments
made by Loan Parties in, loans or advances made by Loan Parties to and
Guarantees made by Loan Parties of Indebtedness of any Subsidiary so designated,
shall be deemed to be investments, loans, advances and Guarantees in, to or on
behalf of an Unrestricted Subsidiary), (iii) after giving effect to such
designation, the Borrower and the Restricted Subsidiaries shall be in compliance
on a pro forma basis with the covenants contained in Sections 6.12, 6.13, 6.14,
6.15 and 6.16 recomputed as at the last day of the most recently completed
fiscal quarter of the Borrower for which financial statements are available, as
if such designation had occurred on the first day of each relevant period for
testing such compliance and (iv) no Default shall have occurred and be
continuing or would result therefrom. The Borrower may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary if (i) no Default shall
have occurred and be continuing or would result therefrom and (ii) after giving
effect to such designation, the Borrower and the Restricted Subsidiaries are in
compliance on a pro forma basis with the covenants contained in Sections 6.12,
6.13, 6.14, 6.15 and 6.16 recomputed as at the last day of the most recently
completed fiscal quarter of the Borrower for which financial statements are
available, as if such designation had occurred on the first day of each relevant
period for testing such compliance. The Borrower shall promptly notify the
Administrative Agent in writing of any such designation (and the Administrative
Agent shall notify
39
the Lenders) and shall deliver to the Administrative Agent a certificate signed
by a Financial Officer of the Borrower certifying that such designation complied
with the foregoing provisions together with reasonably detailed calculations
demonstrating satisfaction of the requirement set forth in clause (iii) of the
second sentence of this definition or in clause (ii) of the third sentence of
this definition, as applicable.
"Weider Acquisition" means the acquisition by the Borrower and
EMP Group L.L.C. of all the outstanding Equity Interests in Weider Publications
pursuant to the Purchase and Contribution Agreement and the other transactions
contemplated by the Purchase and Contribution Agreement and, for purposes of
Section 6.04, shall be deemed to include the contribution to the Borrower by
Holdings of the Equity Interests in Weider Publications purchased with the
membership interests in EMP Group L.L.C. that are initially held by EMP Group
L.L.C. and contributed by EMP Group L.L.C. to Holdings as an equity contribution
in connection therewith.
"Weider Publications" means Weider Publications, LLC, a
Delaware limited liability company to which the businesses of WPI and WIN have
been contributed pursuant to the Asset Contribution Agreement by and among WPI,
WIN and Weider Publications, dated as of January 23, 2003.
"Weider Purchase Price" means the aggregate consideration of
$350,000,000 for the Weider Acquisition, consisting of (i) $341,250,000 in cash
and (ii) membership interests in EMP Group L.L.C. having a value of $8,750,000,
subject to adjustment as provided in the Purchase and Contribution Agreement.
"Weider Transaction Documents" means (a) the Purchase and
Contribution Agreement, (b) the Asset Contribution Agreement by and among WPI,
WIN and Weider Publications, dated as of January 23, 2003, (c) the Limited
Liability Company Agreement by and among Weider Health and Fitness, LLC, WIN and
the Borrower, (d) the Trademark License Agreement between Weider Health and
Fitness and Weider Publications, dated as of January 23, 2003, (e) the Services
Agreement between Weider Health and Fitness and Weider Publications, dated as of
January 23, 2003, (f) the
40
Athlete Endorsement Cooperative Agreement between Weider Health and Fitness and
Weider Publications, dated as of January 23, 2003, (g) the Advertising Agreement
among Weider Nutrition International, Inc., Weider Health and Fitness and Weider
Publications, dated as of January 23, 2003, (h) the Assignment and Assumption of
Industrial Real Estate Lease between Weider Health and Fitness and Weider
Publications, dated as of January 23, 2003, and (i) the other instruments,
certificates and documents delivered or required to be delivered pursuant to the
Purchase and Contribution Agreement.
"WIN" means Weider Interactive Networks, Inc., a Delaware
corporation.
"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.
"WPI" means Weider Publications, Inc., a Delaware corporation.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this 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 also may 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 1.03. 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
41
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 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 and Sections of, and Exhibits and Schedules to, this 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.
SECTION 1.04. Accounting Terms; GAAP; Treatment of
Unrestricted Subsidiaries. (a) 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 date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Borrower that the 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.
(b) Except as otherwise expressly provided herein, all
accounting and financial calculations and determinations hereunder shall be made
without consolidating the accounts of Unrestricted Subsidiaries with those of
the Borrower or any Restricted Subsidiary, notwithstanding that such treatment
is inconsistent with GAAP.
42
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the Borrower
from time to time during the Revolving Availability Period in an aggregate
principal amount that will not result in such Lender's Revolving Exposure
exceeding such Lender's Revolving Commitment. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Revolving Loans. Subject to the terms and conditions set
forth herein and in the Amendment and Restatement Agreement, each Lender having
a Tranche C-1 Commitment made Tranche C-1 Term Loans to the Borrower on the
Restatement Effective Date in a principal amount equal to its Tranche C-1
Commitment. Amounts repaid in respect of Term Loans may not be reborrowed. All
Tranche A Term Loans, Tranche C Term Loans, Revolving Loans and Letters of
Credit outstanding under the Existing Credit Agreement on the Restatement
Effective Date shall remain outstanding hereunder on the terms set forth herein.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than
a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of
the same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith; provided that all Borrowings made
on the Effective Date must be made as ABR Borrowings. Each Swingline Loan shall
be an ABR Loan. Each 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
43
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) 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 $100,000 and not less than $10,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $100,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Revolving Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e). Each Swingline Loan shall be in an amount that is not less than
$100,000. Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of ten
Eurodollar Borrowings of any Class outstanding.
(d) Notwithstanding any other provision of this 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 the Revolving Maturity Date, Tranche A Maturity Date, Tranche C Maturity
Date or Tranche C-1 Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
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;
provided that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e) may be
given not later than 10:00 a.m., New York City time, on 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
and signed by the Borrower. Each such telephonic and
44
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of such 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) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Revolving Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$5,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
45
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Lender's Applicable Percentage of such Swingline Loan
or Loans. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
46
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. The Administrative Agent shall notify
the Borrower of any participations in any Swingline Loan acquired pursuant to
this paragraph, and thereafter payments in respect of such Swingline Loan shall
be made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve the Borrower of any default in the payment thereof. Notwithstanding
the foregoing, a Revolving Lender shall not have any obligation to acquire a
participation in a Swingline Loan pursuant to this paragraph if an Event of
Default shall have occurred and be continuing at the time such Swingline Loan
was made and such Lender shall have notified the Swingline Lender in writing, at
least one Business Day prior to the time such Swingline Loan was made, that such
Event of Default has occurred and that such Lender will not acquire
participations in Swingline Loans made while such Event of Default is
continuing.
SECTION 2.05. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit 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 Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of 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 Agreement shall control.
47
(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 prepare, 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 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 total Revolving Exposures shall not exceed the total Revolving
Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date 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 five Business Days prior to the Revolving Maturity Date.
(d) 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 Lenders, the Issuing
Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such
48
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. 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 Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, 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 10:00 a.m., 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 12:00 noon, New York City time, on the Business Day
immediately following the day that the Borrower receives such notice; provided
that the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be financed
with an ABR Revolving Borrowing or Swingline Loan 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 Swingline
Loan. If the Borrower fails to make such payment when due, the Administrative
Agent shall notify each Revolving Lender of the applicable LC Disbursement, the
payment then due from the Borrower in respect thereof and such Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender
49
shall pay to the Administrative Agent its Applicable Percentage of the payment
then due from the Borrower, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Revolving 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 Revolving
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (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
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
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
50
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 wilful 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 which 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, 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 Revolving Lenders with respect to any such LC
Disbursement.
51
(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 (e) of this Section, then Section 2.13(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 Revolving 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) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) 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
52
Loans has been accelerated, Revolving 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 Lenders, an amount in cash equal to the LC Exposure 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 VII. Each such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower under this 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 deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower's
risk and expense, such deposits 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 the maturity
of the Loans has been accelerated (but subject to the consent of Revolving
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
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 2.06. 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 12:00 noon, New York City time, to
the
53
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 as
provided in Section 2.04. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City 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 2.05(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(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
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 Effective 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 applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
and Term Borrowing 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
54
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 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 2.03 if the Borrower
were requesting a Revolving 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 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 2.02:
(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) below 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;
(iii) whether the resulting Borrowing is to be an
ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a
55
period contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each 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 with respect to a Eurodollar Borrowing 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 2.08. Termination and Reduction of Commitments. (a)
Unless previously terminated, (i) the Tranche C-1 Commitments shall terminate at
5:00 p.m., New York City time, on the Restatement Effective Date and (ii) the
Revolving Commitments shall terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $10,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance
56
with Section 2.11, the sum of the Revolving Exposures would exceed the total
Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments under paragraph (b) 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 Commitments of
any Class shall be permanent. Each reduction of the Revolving Commitments shall
be made ratably among the Lenders in accordance with their respective Revolving
Commitments.
(d) The parties hereto acknowledge that the Tranche A
Commitments, the Tranche B Commitments, the Tranche B-1 Commitments and the
Tranche C Commitments have terminated.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Loan of such Lender as provided in Section 2.10 and (iii) to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the Revolving Maturity Date; provided that on each date that a Revolving
Borrowing is made, the Borrower shall repay all Swingline Loans that were
outstanding on the date such Borrowing was requested.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the
57
indebtedness 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.
(c) 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.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall 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 Agreement.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Amortization of Term Loans.
(a) Subject to adjustment pursuant to paragraph (e) of this Section,
the Borrower shall repay Tranche A Term Borrowings on each date set forth below
in the aggregate principal amount set forth opposite such date:
58
Date Amount
April 1, 2003 $369,316.96
July 1, 2003 $492,422.62
October 1, 2003 $492,422.62
January 2, 2004 $492,422.62
April 1, 2004 $492,422.62
July 1, 2004 $615,528.26
October 1, 2004 $615,528.26
January 2, 2005 $615,528.26
April 1, 2005 $615,528.26
July 1, 2005 $738,633.90
October 1, 2005 $738,633.90
January 2, 2006 $738,633.90
April 1, 2006 $738,633.90
The foregoing amortization schedule reflects all prepayments
of Tranche A Term Borrowings made prior to the Restatement Effective Date.
(b) Subject to adjustment pursuant to paragraph (e) of this
Section, the Borrower shall repay Tranche C Term Borrowings on each date set
forth below in the aggregate principal amount set forth opposite such date:
Date Amount
April 1, 2003 $816,932.30
July 1, 2003 $816,932.30
October 1, 2003 $816,932.30
January 2, 2004 $816,932.30
April 1, 2004 $816,932.30
July 1, 2004 $816,932.30
October 1, 2004 $816,932.30
January 2, 2005 $816,932.30
April 1, 2005 $816,932.30
July 1, 2005 $816,932.30
October 1, 2005 $816,932.30
January 2, 2006 $816,932.30
59
April 1, 2006 $816,932.30
July 1, 2006 $77,608,568.32
October 1, 2006 $77,608,568.32
January 2, 2007 $77,608,568.32
April 1, 2007 $77,608,568.32
The foregoing amortization schedule reflects all prepayments
of Tranche C Term Borrowings made prior to the Restatement Effective Date.
(c) Subject to adjustment pursuant to paragraph (e) of this
Section, the Borrower shall repay Tranche C-1 Term Borrowings on each date set
forth below in the aggregate principal amount set forth opposite such date:
Date Amount
April 1, 2003 $356,234.10
July 1, 2003 $356,234.10
October 1, 2003 $356,234.10
January 2, 2004 $356,234.10
April 1, 2004 $356,234.10
July 1, 2004 $356,234.10
October 1, 2004 $356,234.10
January 2, 2005 $356,234.10
April 1, 2005 $356,234.10
July 1, 2005 $356,234.10
October 1, 2005 $356,234.10
January 2, 2006 $356,234.10
April 1, 2006 $356,234.10
July 1, 2006 $33,842,239.18
October 1, 2006 $33,842,239.18
January 2, 2007 $33,842,239.18
April 1, 2007 $33,842,239.18
(d) To the extent not previously paid, (i) all Tranche A Term
Loans shall be due and payable on the Tranche A Maturity Date, (ii) all Tranche
C Term Loans shall be due and payable on the Tranche C Maturity Date and (ii)
60
all Tranche C-1 Term Loans shall be due and payable on the Tranche C-1 Maturity
Date.
(e) Any prepayment of a Term Borrowing of any Class shall be
applied to reduce the subsequent scheduled repayments of the Term Borrowings of
such Class to be made pursuant to this Section ratably.
(f) Prior to any repayment of any Term Borrowings of any Class
hereunder, the Borrower shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 11:00 a.m.,
New York City time, three Business Days before the scheduled date of such
repayment. Each repayment of a Borrowing shall be applied ratably to the Loans
included in the repaid Borrowing. Repayments of Term Borrowings shall be
accompanied by accrued interest on the amount repaid.
SECTION 2.11. 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.
(b) In the event and on such occasion that the sum of the
Revolving Exposures exceeds the total Revolving Commitments, the Borrower shall
prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings
are outstanding, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds
are received by or on behalf of Holdings, the Borrower or any Restricted
Subsidiary in respect of any Prepayment Event, the Borrower shall, within five
Business Days after such Net Proceeds are received, prepay Term Borrowings in an
aggregate amount equal to such Net Proceeds (or, in the case of an event
described in clause (c) of the definition of Prepayment Event, 50% of such Net
Proceeds); provided that, in the case of any event described in clause (a) of
the definition of the term Prepayment Event, if the Borrower shall deliver to
the Administrative Agent a certificate of a Financial Officer to the effect that
the Borrower and the Restricted Subsidiaries intend to apply the
61
Net Proceeds from such event (or a portion thereof specified in such
certificate), within 360 days after receipt of such Net Proceeds, (i) to acquire
assets (including by making a Permitted Acquisition) productive in the
Borrower's line of business as conducted on the Effective Date, or ancillary or
complementary thereto, or (ii) to the extent such Prepayment Event arises from
the sale, transfer or disposition of any investment in an Unrestricted
Subsidiary, to make investments in one or more other Unrestricted Subsidiaries,
and, in each case, certifying that no Default has occurred and is continuing,
then no prepayment shall be required pursuant to this paragraph in respect of
the Net Proceeds in respect of such event (or the portion of such Net Proceeds
specified in such certificate, if applicable) except to the extent of any such
Net Proceeds therefrom that have not been so applied by the end of such 360-day
period, at which time a prepayment shall be required in an amount equal to such
Net Proceeds that have not been so applied.
(d) Following the end of each fiscal year of the Borrower,
commencing with the fiscal year ending March 26, 2001, the Borrower shall prepay
Term Borrowings in an aggregate amount equal to 50% of Excess Cash Flow for such
fiscal year. Each prepayment pursuant to this paragraph shall be made on or
before the date on which financial statements are delivered pursuant to Section
5.01 with respect to the fiscal year for which Excess Cash Flow is being
calculated (and in any event within 90 days after the end of such fiscal year).
(e) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (f) of this Section. In the event of any optional or
mandatory prepayment of Term Borrowings made at a time when Term Borrowings of
more than one Class remain outstanding, the Borrower shall select Term
Borrowings to be prepaid so that the aggregate amount of such prepayment is
allocated between the Tranche A Term Borrowings, Tranche C Term Borrowings and
Tranche C-1 Term Borrowings pro rata based on the aggregate principal amount of
outstanding Borrowings of each such Class; provided that any Tranche C Lender or
Tranche C-1 Lender may elect, by notice to the Administrative Agent by telephone
(confirmed by telecopy) by
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12:00 noon, New York City time, at least two Business Days prior to the
prepayment date, to decline all or any portion of any mandatory prepayment of
its Tranche C Term Loans or Tranche C-1 Term Loans, as the case may be, pursuant
to this Section, in which case the aggregate amount of the prepayment that would
have been applied to prepay Tranche C Term Loans or Tranche C-1 Term Loans but
was so declined shall be applied to prepay Tranche A Term Borrowings. Subject to
the last sentence of Section 9.02(b), the rights of the Tranche C Lenders and
the Tranche C-1 Lenders under this Section 2.11(e) shall not be changed without
the written consent of, in the case of the Tranche C Lenders, the Tranche C
Lenders holding a majority of the outstanding Tranche C Term Loans and, in the
case of the Tranche C-1 Lenders, the Tranche C-1 Lenders holding a majority of
the outstanding Tranche C-1 Term Loans.
(f) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of any Borrowing (other than a Swingline Loan or an optional
prepayment of an ABR Borrowing), not later than 11:00 a.m., New York City time,
three Business Days before the date of prepayment, (ii) in the case of an
optional prepayment of an ABR Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment or (iii) in the case
of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; provided that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in
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Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the Applicable Rate on the average daily unused amount of
the Revolving Commitment of such Lender during the period from and including the
Effective 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 March, June, September and December of each year and on the date on which the
Revolving Commitments terminate, commencing on the first such date to occur
after the Effective Date. All commitment 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). For purposes of computing
commitment fees with respect to Revolving Commitments, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender
shall be disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans 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
Effective 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 a fronting fee, which shall accrue
at the rate of 0.25% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date of
64
termination of the Revolving Commitments and the date on which there ceases to
be any 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. Participation fees and fronting fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; 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
10 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).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(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 Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other
65
amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, 2% plus the rate applicable to ABR Revolving Loans
as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; 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 a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
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 or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. 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
66
error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the 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 2.15. Increased Costs. (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 Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder
67
(whether of principal, interest or otherwise), then the Borrower will pay to
such Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or the Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Bank or such Lender's
or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, 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 Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the
68
Issuing Bank, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender's or the
Issuing Bank's intention to claim compensation therefor; provided further that,
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment 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 Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, 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 which 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 which would accrue on
such principal amount for such period at the interest rate which 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
69
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or 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 the Borrower 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 Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within 30 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder or under any other Loan Document (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 Lender or the Issuing Bank, or by the Administrative Agent
on its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.
70
(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
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement 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, provided that such Foreign Lender
has received written notice from the Borrower advising it of the availability of
such exemption or reduction and containing all applicable documentation.
(f) If the Administrative Agent or a Lender determines, in its
sole discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.17 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount refunded to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent
71
or any Lender (i) to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to the Borrower or any other
Person or (ii) to determine whether it is entitled to apply for, or to apply
for, a refund of any Taxes or Other Taxes.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing
of Setoffs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, 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 offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. 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 under
any Loan Document 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 under each Loan Document 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,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of
72
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal 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 Revolving Loans, Term 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 Revolving Loans, Term Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Term Loans and participations in LC
Disbursements and 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
by the Borrower pursuant to and in accordance with the express terms of this
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 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). The Borrower 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 the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
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(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the Issuing Bank, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or the
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank 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 Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or
9.03(c), 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 Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, 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 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans 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 Section 2.15 or 2.17, as the case may be, 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
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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 2.15, 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 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense 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 9.04), all its interests, rights and obligations under this Agreement 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 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 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a material 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.
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ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to
the Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the
Borrower and its Restricted 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 3.02. Authorization; Enforceability. The Transactions
entered into and to be entered into by each Loan Party are within such Loan
Party's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly
executed and delivered by each of Holdings and the Borrower and constitutes, and
each other Loan Document to which any Loan Party is to be a party, when executed
and delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of Holdings, the Borrower or such Loan Party (as the case may be),
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. 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 and except filings
necessary to perfect Liens created under the Loan Documents, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of Holdings, the Borrower or any of its Subsidiaries or
any order of any Governmental Authority,
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except for any violations of any applicable law or regulation or any order of
any Governmental Authority resulting from the execution and delivery of any of
the Weider Transaction Documents or the transactions contemplated thereby that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, (c) will not violate or result in a default under any
indenture, agreement or other instrument (other than any indenture, agreement or
other instrument in respect of Indebtedness that was repaid on the Effective
Date) binding upon Holdings, the Borrower or any of its Restricted Subsidiaries
or its assets, or give rise to a right thereunder to require any payment to be
made by Holdings, the Borrower or any of its Restricted Subsidiaries, except for
any such violations, defaults or rights to require payments resulting from the
execution and delivery of any of the Weider Transaction Documents or the
transactions contemplated thereby that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, and (d) will
not result in the creation or imposition of any Lien on any asset of Holdings,
the Borrower or any of its Restricted Subsidiaries, except Liens created under
the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders' equity and cash flows (i)
as of and for the fiscal year ended March 25, 2002, reported on by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended September 23, 2002, certified
by its chief financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) The Borrower has heretofore furnished to the Lenders the
pro forma consolidated balance sheet and related statements of income and cash
flows of each of the Borrower and Holdings as of September 30, 2002, prepared
giving effect to the Restatement Transactions as if the Restatement
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Transactions had occurred on such date. Such pro forma consolidated balance
sheets and related statements of income and cash flows (i) have been prepared in
accordance with Regulation S-X of the Securities Act of 1933 except to the
extent approved by the Administrative Agent, (ii) have been prepared in good
faith based on the same assumptions used to prepare the pro forma financial
statements included in the Information Memorandum (which assumptions are
believed by Holdings and the Borrower to be reasonable), (iii) are based on the
best information available to Holdings and the Borrower after due inquiry, (iv)
accurately reflect all adjustments necessary to give effect to the Restatement
Transactions and (v) present fairly, in all material respects, the pro forma
financial position of Holdings or the Borrower, as applicable, and its
consolidated Subsidiaries as of September 30, 2002 as if the Restatement
Transactions had occurred on such date.
(c) The Borrower has heretofore furnished to the
Administrative Agent (a) an audited consolidated balance sheet of WPI and its
subsidiaries as of December 31, 2001 and as of December 31, 2000, and the
related consolidated statements of income, stockholders' equity and cash flow
for the fiscal year ended December 31, 2001 and the seven months ended December
31, 2000, reported on by Deloitte & Touche LLP, independent public accountants,
and (b) an unaudited combined consolidated balance sheet of WPI and its
subsidiaries and WIN as of September 30, 2002, and the related combined
consolidated statements of income, for the nine months ended September 30, 2002
(which were reviewed by the independent accountants of WPI and WIN as provided
in Statement of Accounting Standards No. 71), in each case prepared in
accordance with Regulation S-X under the Securities Act of 1933. Except as set
forth therein, such financial statements present fairly, in all material
respects, the combined and/or the consolidated financial position, results of
operations, changes in stockholders' equity and cash flows of WPI and its
subsidiaries as of such dates and for such periods in accordance with GAAP
consistently applied, except, in the case of the interim financial statements,
for normal year-end audit adjustments and the absence of footnotes.
(d) Except as disclosed in the financial statements referred
to above or the notes thereto or in the
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Information Memorandum and except for the Disclosed Matters, after giving effect
to the Transactions, none of Holdings, the Borrower or its Subsidiaries has, as
of the Restatement Effective Date, any material contingent liabilities, unusual
long-term commitments or unrealized losses.
(e) Since March 25, 2002, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of Holdings, the Borrower and its Restricted Subsidiaries, taken as a
whole.
SECTION 3.05. Properties. (a) Each of Holdings, the Borrower
and its Restricted Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to their business (including its
Mortgaged Properties and Restatement Mortgaged Properties), taken as a whole,
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 Holdings, the Borrower and its Restricted
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to their business,
taken as a whole, and the use thereof by Holdings, the Borrower and its
Restricted 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. Subject to
the following sentence and other than registered copyrights (x) that were
acquired, directly or indirectly, by a Loan Party in connection with the Weider
Acquisition and (y) either (i) that were not disclosed to any Loan Party by the
seller in connection with the Weider Acquisition or (ii) with respect to which
no Loan Party has knowledge, as of the Restatement Effective Date, of
registration information, Schedule 3.05(b) sets forth a complete list of all
trademarks, tradenames, copyrights, patents and other intellectual property
owned by the Borrower and its Restricted Subsidiaries as of the Restatement
Effective Date that has been duly registered in, filed in or issued by the
United States Patent and Trademark Office or the United States Copyright Office
or any other appropriate office.
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With respect to registered copyrights (x) acquired, directly or indirectly, by a
Loan Party in connection with the 1999 Restatement Acquisition and (y) with a
registration issue date prior to November 1, 1999, the representation made in
the immediately preceding sentence excludes registered copyrights (A) with a
registration issue date prior to January 1, 1980, or (B) with respect to which
no Loan Party has knowledge, as of the Restatement Effective Date, of
registration information. Any registered copyrights (x) acquired, directly or
indirectly, by a Loan Party in connection with the 1999 Restatement Acquisition
and (y) which are not listed on Schedule 3.05(b) are not material, individually
or in the aggregate, to the business of the Borrower and its Subsidiaries.
(c) Schedule 3.05(c) sets forth the address of each real
property that is owned or leased by the Borrower or any of its Subsidiaries as
of the Restatement Effective Date after giving effect to the Restatement
Transactions.
(d) As of the Restatement Effective Date, neither Holdings,
the Borrower nor any of its Subsidiaries has received notice of, or has
knowledge of, any pending or contemplated condemnation proceeding affecting any
Mortgaged Property or Restatement Mortgaged Property or any sale or disposition
thereof in lieu of condemnation, other than with respect to the contemplated
condemnation proceeding affecting the property constituting the Borrower's
former Boca Raton, Florida headquarters located at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Except as set forth on Schedule 3.05(d), none of the Mortgaged
Properties, Restatement Mortgaged Properties or any interest therein is subject
to any right of first refusal, option or other contractual right to purchase any
such Mortgaged Property or Restatement Mortgaged Property or interest therein.
SECTION 3.06. 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 Holdings or the Borrower,
threatened against or affecting Holdings, the Borrower or any of its
Subsidiaries (i) that could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters), (ii) that involve any of the Loan Documents or (iii) that
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involve the Transactions, are not frivolous and, if adversely determined, could
reasonably be expected, individually or in the aggregate, to be adverse to the
interests of the Lenders.
(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 Holdings,
the Borrower nor any of its Subsidiaries (i) has 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) has become subject to
any Environmental Liability, (iii) has received notice of any claim asserting
that Holdings, the Borrower or any of its Subsidiaries is obligated to redress
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability that Holdings, the Borrower or any of its Subsidiaries is reasonably
likely to become obligated to redress.
(c) Since the Effective 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 3.07. Compliance with Laws and Agreements. Each of
Holdings, the Borrower and its 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 3.08. Investment and Holding Company Status. Neither
Holdings, the Borrower nor any of its Subsidiaries is (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 3.09. Taxes. Each of Holdings, the Borrower and its
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) any Taxes that are being contested in good
faith by appropriate proceedings and for which Holdings, 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 3.10. 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. Either (a) 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 $15,000,000 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
$15,000,000 the fair market value of the assets of all such underfunded Plans or
(b) if such a present value does exceed such amount, the resulting underfunding
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
Holdings, the Borrower or any of its Subsidiaries is subject, and all other
matters known to any of them, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of any Loan Party to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or thereunder
(as
82
modified or supplemented by other information so furnished, taken as a whole)
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, Holdings and the Borrower represent only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 3.12. Subsidiaries. Holdings does not have any
subsidiaries other than the Borrower and the Borrower's Subsidiaries. Schedule
3.12 sets forth the name of, and the ownership interest of the Borrower in, each
Subsidiary of the Borrower and identifies each Subsidiary that is a Subsidiary
Loan Party, in each case as of the Restatement Effective Date. As of the
Restatement Effective Date, all Subsidiaries are Restricted Subsidiaries.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a
description of all insurance maintained by or on behalf of the Borrower and its
Subsidiaries as of the Restatement Effective Date. As of the Restatement
Effective Date, all premiums in respect of such insurance have been paid.
Holdings and the Borrower believe that the insurance maintained by or on behalf
of the Borrower and its Subsidiaries is adequate.
SECTION 3.14. Labor Matters. As of the Restatement Effective
Date, there are no strikes, lockouts or slowdowns against Holdings, the Borrower
or any Subsidiary pending or, to the knowledge of Holdings or the Borrower,
threatened. The hours worked by and payments made to employees of Holdings, the
Borrower and the Restricted 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 for such violations that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. All payments due from Holdings, the Borrower or any Restricted
Subsidiary, or for which any claim may be made against Holdings, the Borrower or
any Restricted 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 Holdings, the Borrower or such
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Restricted Subsidiary, except for such payments which, if not paid or accrued,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. 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 Holdings, the Borrower
or any Subsidiary is bound, except for such rights of termination or
renegotiation, which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.15. Solvency. Immediately after the consummation of
the Restatement Transactions to occur on the Restatement Effective Date and
immediately following the making of each Loan made on the Restatement Effective
Date and after giving effect to the application of the proceeds of such Loans,
(a) the fair value of the assets of each Loan Party, at a fair valuation, will
exceed its debts and liabilities, subordinated, contingent or otherwise; (b) the
present fair saleable value of the property of each Loan Party will be greater
than the amount that will be required to pay the probable liability of its debts
and other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Loan Party 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 Loan Party 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 the Restatement Effective Date.
SECTION 3.16. Senior Indebtedness. The Obligations constitute
"Senior Indebtedness" under and as defined in the Subordinated Debt Documents.
SECTION 3.17. Security Documents. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the portion of the
Collateral constituting certificated securities (as defined in the Uniform
Commercial Code) is delivered to the Collateral Agent, the Pledge Agreement
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shall constitute a fully perfected first priority Lien on, and security interest
in, all right, title and interest of the pledgor thereunder in such Collateral,
in each case prior and superior in right to any other Person.
(b) The Security Agreement is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and, when financing statements in appropriate form are filed
in the offices specified on Schedule 6 to the Perfection Certificate, 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 (other than the Intellectual Property (as defined in the Security
Agreement)), in each case prior and superior in right to any other Person, other
than with respect to Liens expressly permitted by the Security Agreement.
(c) When the Security Agreement, a supplement thereto or other
appropriate notice is filed in the United States Patent and Trademark Office and
the United States Copyright Office, the security interest created thereunder
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties 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 the rights of Persons
pursuant to Liens expressly permitted by the Security Agreement (it being
understood (a) 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 Loan Parties after the Effective Date and (b) for the purposes
of this representation only and for the avoidance of doubt, that "Intellectual
Property" shall exclude (i) any registered copyrights that were acquired,
directly or indirectly, by a Loan Party in connection with the Weider
Acquisition and either (A) that were not disclosed to any
85
Loan Party by the seller in connection with the Weider Acquisition or (B) with
respect to which no Loan Party has knowledge, as of the Restatement Effective
Date, of registration information and (ii) any registered copyrights that were
acquired, directly or indirectly, by a Loan Party in connection with the 1999
Restatement Acquisition (A) with a registration issue date prior to January 1,
1980, or (B) with respect to which no Loan Party has knowledge, as of the
Restatement Effective Date, of registration information).
(d) Each Mortgage is effective to create, subject to the
exceptions listed in each title insurance policy covering such Mortgage, in
favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable Lien on all of the Loan Parties' right, title and
interest in and to the Mortgaged Property or Restatement Mortgaged Property, as
the case may be, thereunder and the proceeds thereof, and when such Mortgage is
filed in the offices specified on Schedule 3.17(d), such Mortgage shall
constitute a Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Mortgaged Property or Restatement Mortgaged Property
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 such Mortgage.
SECTION 3.18. Weider Acquisition. As of the Restatement
Effective Date, the Purchase and Contribution Agreement has been duly
authorized, executed and delivered by each of the parties thereto and
constitutes a legal, valid and binding obligation of each such party,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law. A true, correct and complete
copy of the Purchase and Contribution Agreement has been furnished to the
Administrative Agent.
SECTION 3.19. Capitalization of Holdings. As of the Effective
Date, the authorized capital stock of Holdings consisted of 100,000,000 shares
of Class A Common Stock, par value $.01 per share, of which 22,786,536 shares
are issued and outstanding, 20,000,000 shares of Class B Common Stock,
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par value $.01 per share, of which no shares are outstanding, and 25,000,000
shares of Class C Common Stock, par value $.01 per share, of which 20,702,005
shares are outstanding. All such outstanding shares of stock are fully paid and
nonassessable.
ARTICLE IV
Conditions
SECTION 4.01. 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 any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct (or, in the case
of such representations and warranties that are not qualified as to
materiality, true and correct in all material respects) on and as of
the date of such Borrowing or the date of issuance, amendment, renewal
or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Holdings
and the Borrower on the date thereof as to the matters specified in paragraphs
(a) and (b) of this Section.
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ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Holdings and the
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information.
Holdings and the Borrower will furnish to the Administrative Agent (which shall
furnish a copy thereof to each Lender):
(a) within 90 days after the end of each fiscal year of the
Borrower, the audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows of the Borrower and
its Restricted Subsidiaries 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 Deloitte & Touche LLP or other
independent public 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 Restricted Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, (i) the
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows of the Borrower and its Restricted
Subsidiaries and (ii) statements of operations and stockholders' equity
of (A) National Enquirer, Inc., (B) Weekly World News, Inc., (C) Star
Editorial, Inc., (D) Country Music Media Group, Inc. and (E) each
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Restricted Subsidiary formed or acquired after the Effective Date, in
each case 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, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its Restricted Subsidiaries,
in each case on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes; provided that with respect to the Restricted
Subsidiaries formed or acquired in connection with the Weider
Acquisition, no 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 need be set forth in comparative form until the fiscal quarter
ending June 2004;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Borrower (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 reasonably detailed calculations demonstrating compliance with
Sections 6.01, 6.04, 6.05, 6.08, 6.12, 6.13, 6.14, 6.15 and 6.16, (iii)
stating whether any change in GAAP or in the application thereof has
occurred since the date of the Borrower's audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate and (iv) if any Unrestricted Subsidiary
exists (or existed at any time during the period covered by such
financial statements), attaching consolidating balance sheets and
income statements for such Unrestricted Subsidiary as of the same dates
and covering the same periods, certified as true, correct and complete;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the
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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);
(e) prior to the commencement of each fiscal year of the
Borrower, a detailed consolidated quarterly budget for such fiscal year
(including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and
for such fiscal year and setting forth the assumptions used for
purposes of preparing such budget) and, promptly when available, any
significant revisions of such budget;
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by Holdings, 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 Holdings to its shareholders
generally, as the case may be; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of Holdings, the Borrower or any Subsidiary, or compliance
with the terms of any Loan Document, as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.02. Notices of Material Events. Holdings and 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 Holdings, the Borrower or any Affiliate thereof
that, if
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adversely determined, could 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 Holdings, the Borrower and its
Subsidiaries in an aggregate amount exceeding $5,000,000; 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 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 5.03. Information Regarding Collateral. (a) The
Borrower will furnish to the Administrative Agent prompt written notice of any
change (i) in any Loan Party's name, (ii) in the jurisdiction of incorporation
or organization of any Loan Party, (iii) in the location of the chief executive
office of any Loan Party, (iv) in any Loan Party's identity or type of
organization or corporate structure or (v) in any Loan Party's Organizational
Identification Number. Each Grantor agrees to promptly provide the
Administrative Agent with certified organizational documents reflecting any of
the changes described in the first sentence of this paragraph. The Borrower
agrees not to effect or permit any change referred to in the first sentence of
this paragraph 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 clause (a) of
Section 5.01, the Borrower
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shall deliver to the Administrative Agent a certificate of a Financial Officer
and the chief legal officer of the Borrower setting forth the information
required pursuant to Section 2 of the Perfection Certificate or confirming that
there has been no change in such information since the date of the Perfection
Certificate delivered on the Effective Date or the date of the most recent
certificate delivered pursuant to this Section. Each certificate delivered
pursuant to this Section 5.03(b) shall identify in the format of Schedule II,
III, IV or V, as applicable, of the Security Agreement all Intellectual Property
(as defined in the Security Agreement) of any Loan Party in existence on the
date thereof and not then listed on such Schedules as previously so identified
to the Collateral Agent; provided that no such certificate need identify (i) (x)
any registered copyrights that were acquired, directly or indirectly, by a Loan
Party in connection with the Weider Acquisition and (y) either (A) that were not
disclosed to any Loan Party by the seller in connection with the Weider
Acquisition or (B) with respect to which no Loan Party has knowledge, as of the
date of such certificate, of registration information or (ii) any registered
copyrights acquired, directly or indirectly, by a Loan Party in connection with
the 1999 Restatement Acquisition (A) with a registration issue date prior to
January 1, 1980, or (B) with respect to which no Loan Party has knowledge, as of
the date of such certificate, of registration information.
SECTION 5.04. Existence; Conduct of Business. Each of Holdings
and the Borrower will, and will cause each of the Restricted Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material
to the conduct of their business, taken as a whole; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03.
SECTION 5.05. Payment of Obligations. Each of Holdings and the
Borrower will, and will cause each of the Restricted Subsidiaries to, pay its
Indebtedness and other obligations, including Tax liabilities, before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith
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by appropriate proceedings, (b) Holdings, the Borrower or such Restricted
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP, (c) such contest effectively suspends collection of the
contested obligation and the enforcement of any Lien securing such obligation
and (d) the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. Each of Holdings and
the Borrower will, and will cause each of the Restricted Subsidiaries to, keep
and maintain all property material to the conduct of their business, taken as a
whole, in good working order and condition, ordinary wear and tear excepted.
SECTION 5.07. Insurance. Each of Holdings and the Borrower
will, and will cause each of its Restricted Subsidiaries to, maintain, with
financially sound and reputable insurance companies (a) insurance in such
amounts (with no greater risk retention) and against such risks as are
customarily maintained by companies of established repute engaged in the same or
similar businesses operating in the same or similar locations, including
insurance against libel actions, and (b) all insurance required to be maintained
pursuant to the Security Documents. The Borrower will furnish to the Lenders,
upon request of the Administrative Agent, information in reasonable detail as to
the insurance so maintained.
SECTION 5.08. Casualty and Condemnation. The Borrower (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material 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 and (b) will ensure that the Net Proceeds of
any such event (whether in the form of insurance proceeds, condemnation awards
or otherwise) are collected and applied in accordance with the applicable
provisions of the Security Documents.
SECTION 5.09. Books and Records; Inspection and Audit Rights.
Each of Holdings and the Borrower will, and
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will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made in accordance with GAAP,
consistently applied, of all dealings and transactions in relation to its
business and activities. Each of Holdings and the Borrower will, and will cause
each of its 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.
SECTION 5.10. Compliance with Laws. Each of Holdings and the
Borrower will, and will cause each of its 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 5.11. Use of Proceeds and Letters of Credit. The
proceeds of the Tranche A Term Loans will be used only (a) to repay amounts
outstanding under the Fourth Amended and Restated Credit Agreement dated as of
June 5, 1998, among the Borrower, certain of its subsidiaries, certain banks
from time to time parties thereto and JPMorgan Chase Bank, as agent, on the
Effective Date and (b) to purchase Existing Notes accepted for payment pursuant
to the Debt Tender Offer. The proceeds of the Tranche C Term Loans will be used
only to prepay all Tranche B Term Loans and Tranche B-1 Term Loans outstanding
on the 2002 Restatement Effective Date. The proceeds of the Tranche C-1 Term
Loans will be used, together with the proceeds of the New Senior Subordinated
Notes, the proceeds of the Additional Equity Contribution and $20,000,000 in
cash of the Borrower, only to finance the cash portion of the Weider Purchase
Price and to pay transaction costs in connection with the Restatement
Transactions. The proceeds of the Revolving Loans and Swingline Loans will be
used only for general corporate purposes. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board,
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including Regulations T, U and X. Letters of Credit will be issued only for
general corporate purposes.
SECTION 5.12. Additional Subsidiaries. If any additional
Subsidiary is formed or acquired after the Effective Date or if any Unrestricted
Subsidiary is designated as a Restricted Subsidiary, the Borrower will notify
the Administrative Agent and the Lenders thereof and (a) if such Subsidiary is a
Subsidiary Loan Party, the Borrower will cause such Subsidiary to become a party
to each of the Guarantee Agreement, the Pledge Agreement, the Security Agreement
and the Indemnity, Subrogation and Contribution Agreement within three Business
Days after such Subsidiary is formed or acquired and 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 and (b) if any Equity Interest in or Indebtedness of such Subsidiary is
owned by or on behalf of any Loan Party, the Borrower will cause such Equity
Interests and promissory notes evidencing such Indebtedness to be pledged
pursuant to the Pledge Agreement within three Business Days after such
Subsidiary is formed or acquired (except that, if such Subsidiary is a Foreign
Subsidiary, shares of common stock of such Subsidiary to be pledged pursuant to
the Pledge Agreement shall be limited to 65% of the outstanding shares of common
stock of such Subsidiary).
SECTION 5.13. Further Assurances. (a) Each of Holdings and the
Borrower will, and will cause each Subsidiary Loan Party 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, deeds of trust and other documents),
which 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 Loan
Parties. Holdings and the Borrower also agree to provide to the Administrative
Agent, from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the
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perfection and priority of the Liens created or intended to be created by the
Security Documents.
(b) If any material assets (including any owned real property
or improvements thereto or any interest therein) are acquired by the Borrower or
any Subsidiary Loan Party after the Effective Date (other than assets
constituting Collateral under the Security Agreement that become subject to the
Lien of the Security Agreement upon acquisition thereof), the Borrower will
notify the Administrative Agent and the Lenders thereof, and, if requested by
the Administrative Agent or the Required Lenders, the Borrower will cause such
assets to be subjected to a Lien securing the Obligations and will take, and
cause the Subsidiary Loan Parties 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 Loan Parties.
(c) In the event that (i) condemnation proceedings related to
the Florida Property have not commenced on or prior to the six month anniversary
of the Restatement Effective Date, (ii) the Florida Property is not condemned on
or prior to the twelve month anniversary of the Restatement Effective Date,
(iii) the Loan Parties have taken action to remediate the Florida Property such
that the estimated value of the Florida Property exceeds the estimated aggregate
cost of any remaining remediation of the Florida Property, in each case as
determined by the Collateral Agent after consultation with the Borrower, or (iv)
an Event of Default has occurred and is continuing, the Borrower shall, or shall
cause the relevant Subsidiary Loan Party to, deliver to the Collateral Agent
within 30 days after, in the case of clause (i), the six month anniversary of
the Restatement Effective Date, in the case of clause (ii), the twelve month
anniversary of the Restatement Effective Date, or, in the case of clauses (iii)
and (iv), a request therefor from the Collateral Agent, amendments to, or
amendments and restatements of, each Mortgage with respect to the Florida
Property in effect on the Restatement Effective Date securing Obligations under
the Existing Credit Agreement providing that the Tranche C-1 Term Loans (in
addition to the other Obligations) shall be secured by a Lien on the Florida
Property, signed on behalf of the record
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owner of the Florida Property, (ii) policy or policies, or customary "date-down"
endorsements to existing policies, of title insurance satisfactory to the
Administrative Agent issued by a nationally recognized title insurance company,
insuring the Lien of such Mortgage as a valid first Lien on the Florida
Property, free of any other Liens except as permitted by the Loan Documents,
together with such endorsements, coinsurance and reinsurance as the Collateral
Agent or the Required Lenders may reasonably request and (iii) a favorable
written opinion (addressed to the Administrative Agent and the Lenders) of local
counsel in the jurisdiction where the Florida Property is located, satisfactory
to the Administrative Agent and covering such matters relating to the Florida
Property, the Loan Parties, the Loan Documents and the Restatement Transactions
as the Administrative Agent or the Required Lenders shall reasonably request.
The Borrower agrees to provide the Administrative Agent prompt notice of any
actions taken to remediate the Florida Property. For purposes of this Section
5.13(c), "Florida Property" shall mean the property constituting the Borrower's
former Boca Raton, Florida headquarters located at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(d) Promptly (but in no event later than the next succeeding
date on which a certificate is provided pursuant to Section 5.03(b) hereof)
after becoming aware of any material registered copyrights that (a) were
acquired, directly or indirectly, by a Loan Party in connection with the Weider
Acquisition and (b) were not set forth in the Perfection Certificate delivered
in connection with the Amendment and Restatement Agreement, the Borrower will
notify the Administrative thereof, and, if requested by the Administrative
Agent, the Borrower will cause such registered copyrights to be subjected to a
Lien securing the Obligations and will take, and cause the Subsidiary Loan
Parties to take, such actions as shall be necessary or reasonably requested by
the Administrative Agent to grant and prefect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties.
(e) Each of the Loan Parties hereby agrees to use commercially
reasonable efforts to cause, within a reasonable period of time, the recordation
with the United
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States Copyright Office of the transfer of all registered copyrights (other than
registered copyrights with a registration issue date prior to January 1, 1980)
acquired, directly or indirectly, by a Loan Party in connection with the 1999
Restatement Acquisition, including causing the transferor thereof to execute any
and all relevant documents in connection therewith. Upon such recordation, the
Borrower shall promptly notify the Administrative Agent thereof.
(f) Each of the Loan Parties hereby agrees to use commercially
reasonable efforts to obtain, commencing promptly after the Restatement
Effective Date, all consents and waivers, contractual or otherwise, required to
allow the pledge of the percent of the Equity Interests of Pan Asia Publishing
Co., Ltd., a Taiwanese limited liability company, and the Equity Interests of
Onshelf Investment Sixty Five (Ptu) Ltd., a South African limited liability
company, required pursuant to Section 1 of the Pledge Agreement. Promptly upon
obtaining such consents and waivers, the applicable Pledgor (as defined in the
Pledge Agreement) shall cause such Equity Interests to be pledged to the
Collateral Agent pursuant to the Pledge Agreement.
SECTION 5.14. Interest Rate Protection. As promptly as
practicable, and in any event commencing no later than 60 days after the
Effective Date, the Borrower will enter into, and thereafter for a period of not
less than three years will maintain in effect, interest rate protection
agreements on such terms and with such parties as shall be reasonably
satisfactory to the Administrative Agent, such that the interest cost to the
Borrower with respect to at least 50% of the total Long-Term Indebtedness of the
Borrower and the Subsidiaries will either be hedged by such interest rate
protection agreements or bear interest at a fixed rate.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of
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Credit have expired or terminated and all LC Disbursements shall have been
reimbursed, each of Holdings and the Borrower covenants and agrees with the
Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) The
Borrower will not, and will not permit any Restricted Subsidiary to, create,
incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt in an aggregate principal amount
not exceeding $575,000,000 at any time outstanding;
(iii) any Existing Notes that are not purchased pursuant to
the Debt Tender Offer;
(iv) Indebtedness existing on the Effective Date and set forth
in Schedule 6.01(a)(iv) and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased
weighted average life thereof;
(v) Indebtedness of the Borrower to any Restricted Subsidiary
and of any Restricted Subsidiary to the Borrower or any other
Restricted Subsidiary;
(vi) Guarantees by the Borrower of Indebtedness of any
Subsidiary and by any Restricted Subsidiary of Indebtedness of the
Borrower or any other Subsidiary; provided that Guarantees by the
Borrower or any Restricted Subsidiary of Indebtedness of any Subsidiary
that is not a Loan Party shall be subject to Section 6.04;
(vii) Indebtedness of the Borrower or any Restricted
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
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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 (vii) at any time outstanding
shall not exceed $20,000,000;
(viii) Indebtedness of any Person that becomes a Restricted
Subsidiary after the Effective Date (including the Indebtedness of
Weider Publications set forth in Schedule 6.01(a)(viii)) and
extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof; provided that
such Indebtedness exists at the time such Person becomes a Subsidiary
and is not created in contemplation of or in connection with such
Person becoming a Subsidiary;
(ix) Indebtedness of the Borrower incurred under the Purchase
Agreement for any purchase price adjustment payable under the Purchase
Agreement; provided that such Indebtedness together with the cash
consideration paid in connection with the 1999 Restatement Acquisition
on November 1, 1999 does not exceed $105,000,000;
(x) other unsecured Indebtedness in an aggregate principal
amount not exceeding $25,000,000 at any time outstanding; and
(xi) other unsecured Indebtedness in an aggregate principal
amount not exceeding $50,000,000 at any time outstanding; provided
that, at the time of and after giving effect to the incurrence of any
such Indebtedness permitted by this clause (xi), the Leverage Ratio
(determined for this purpose based on Consolidated EBITDA for the
period of four consecutive fiscal quarters most recently ended for
which financial statements have been delivered pursuant to clause (a)
or (b) of Section 5.01) shall not exceed 5.0 to 1.0.
(b) Holdings will not create, incur, assume or permit to exist
any Indebtedness except (i) Indebtedness
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created under the Loan Documents and (ii) the Holdings Discount Notes.
(c) Neither Holdings nor the Borrower will, nor will they
permit any Restricted Subsidiary to, (i) issue any preferred stock or other
preferred Equity Interests (other than preferred stock issued by Holdings that
is not Disqualified Stock) or (ii) designate any other Indebtedness as
"Designated Senior Indebtedness" under and as defined in the Subordinated Debt
Documents.
SECTION 6.02. Liens. (a) The Borrower will not, and will not
permit any Restricted 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:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
Restricted Subsidiary existing on the Effective Date and set forth in
Schedule 6.02; provided that (A) such Lien shall not apply to any other
property or asset of the Borrower or any Restricted Subsidiary and (B)
such Lien shall secure only those obligations which it secures on the
Effective Date and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
Effective Date prior to the time such Person becomes a Subsidiary;
provided that (A) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (B) such Lien shall not apply to any other property
or assets of the Borrower or any Restricted Subsidiary and (C) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a
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Subsidiary, as the case may be and extensions, renewals and
replacements thereof that do not increase the outstanding principal
amount thereof;
(v) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Restricted Subsidiary; provided that
(A) such security interests secure Indebtedness permitted by clause
(vii) of Section 6.01(a), (B) 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, (C) the Indebtedness secured thereby does not exceed 100%
of the cost of acquiring, constructing or improving such fixed or
capital assets and (D) such security interests shall not apply to any
other property or assets of the Borrower or any Restricted Subsidiary;
(vi) Liens arising by operation of law that secure obligations
in an aggregate amount not to exceed $5,000,000 at any time
outstanding, including Liens imposed pursuant to Environmental Laws
securing obligations not reasonably expected to exceed such amount;
(vii) any sale or assignment of accounts receivable
permitted by clause (c) of Section 6.05; and
(viii) other Liens on assets that do not constitute
Collateral; provided, that the aggregate amount of all obligations
secured by such Liens does not exceed $10,000,000 in the aggregate at
any time outstanding.
(b) Holdings will not 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 thereof, except Liens created under the Security Documents and
Permitted Encumbrances.
SECTION 6.03. Fundamental Changes. (a) Neither Holdings nor
the Borrower will, nor will they permit any Restricted Subsidiary to, merge into
or consolidate with any other Person, or permit any other Person to merge into
or consolidate with it, or liquidate or dissolve, except that,
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if at the time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing (i) any Person may merge into the Borrower
in a transaction in which the Borrower is the surviving corporation, (ii) any
Person may merge into any Restricted Subsidiary in a transaction in which the
surviving entity is a Restricted Subsidiary and (if any party to such merger is
a Subsidiary Loan Party) is a Subsidiary Loan Party and (iii) any Restricted
Subsidiary (other than a Subsidiary Loan Party) 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; provided that (A) the foregoing shall not be construed to prohibit the
Merger and (B) any such merger involving a Person that is not a wholly owned
Restricted Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its
Restricted Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and its Restricted
Subsidiaries on the Effective Date and businesses reasonably related thereto.
(c) Holdings will not engage in any business or activity other
than the ownership of shares of capital stock of the Borrower and activities
incidental thereto. Holdings will not own or acquire any assets (other than
shares of capital stock of the Borrower, cash and Permitted Investments) or
incur any liabilities (other than liabilities under the Loan Documents, the
Holdings Discount Notes Documents, liabilities imposed by law, including tax
liabilities, and other liabilities incidental to its existence and permitted
business and activities). Notwithstanding the foregoing, in connection with the
Weider Acquisition, Holdings may hold the Equity Interests in Weider
Publications purchased with the membership interests in EMP Group L.L.C. that
are initially held by EMP Group L.L.C.; provided that immediately upon the
contribution of such Equity Interests in Weider Publications to Holdings,
Holdings shall contribute such Equity Interests in Weider Publications to the
Borrower as an equity contribution.
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(d) Holdings shall not enter into any agreement relating to the
voting of any Equity Interests in the Borrower held by it except (i) with
respect to the election of directors of the Borrower; provided that Holdings
retains the direct or indirect power to appoint at least 80% of the directors of
the Borrower and (ii) to grant to any other holder of common stock of the
Borrower the right to approve the taking of any action by the Borrower that
would also require the approval in writing of the Lenders or the Required
Lenders, as applicable, under the terms and conditions of this Agreement or the
other Loan Documents.
(e) Holdings shall not sell or otherwise transfer any Equity
Interests of the Borrower to any Person unless (i) all the Equity Interests of
the Borrower sold or otherwise transferred to Persons other than Holdings
consist of common stock, (ii) either (A) all the common stock of the Borrower
consists of common stock of the same class and has the same rights (including
voting rights) and privileges or (B) the common stock of the Borrower that is
owned by Persons other than Holdings either does not entitle the holders thereof
to voting rights or, in the aggregate, entitles the holders thereof to not more
than 20% of the total voting power of all classes of voting common stock of the
Borrower, and (iii) all such Equity Interests are pledged to the Collateral
Agent for the benefit of the Secured Parties pursuant to a pledge agreement that
is substantially the same as the Pledge Agreement so that, after giving effect
to all such sales or other transfers of Equity Interests of the Borrower, 100%
of the capital stock of the Borrower remains pledged to secure the Obligations
(as defined in the Pledge Agreement).
(f) The Borrower shall not issue any Equity Interests to any Person
other than Holdings unless (i) all the Equity Interests of the Borrower issued
to Persons other than Holdings consist of common stock, (ii) either (A) all the
common stock of the Borrower consists of common stock of the same class and has
the same rights (including voting rights) and privileges or (B) the common stock
of the Borrower that is owned by Persons other than Holdings either does not
entitle the holders thereof to voting rights or, in the aggregate, entitles the
holders thereof to not more than 20% of the total voting power of all classes of
voting common stock of the Borrower, and (iii) all such Equity
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Interests are pledged to the Collateral Agent for the benefit of the Secured
Parties pursuant to a pledge agreement that is substantially the same as the
Pledge Agreement so that, after giving effect to all such issuances of Equity
Interests of the Borrower, 100% of the capital stock of the Borrower remains
pledged to secure the Obligations (as defined in the Pledge Agreement).
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Restricted Subsidiary prior to such
merger) any Equity Interests in or 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, Guarantee 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) any assets of any other Person constituting a business unit,
except:
(a) the Acquisition, the 1999 Restatement Acquisition and the Weider
Acquisition;
(b) Permitted Investments;
(c) investments existing on the Effective Date and set forth on
Schedule 6.04;
(d) investments by the Borrower and its Restricted Subsidiaries in
Equity Interests in their respective Subsidiaries; provided that (i) any such
Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant
to the Pledge Agreement (subject to the limitations applicable to the pledge of
Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the
aggregate amount of investments by Loan Parties in, and loans and advances by
Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted
Subsidiaries (including all such investments, loans, advances and Guarantees
existing on the Effective Date) shall not exceed $40,000,000 at any time
outstanding (it being understood that, for purposes of determining outstanding
investments in Unrestricted
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Subsidiaries, the sale or disposition by a Loan Party of an investment in an
Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted
Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)
and (iii) the aggregate amount of investments by Loan Parties in, and loans and
advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of,
Restricted Subsidiaries that are Foreign Subsidiaries (including all such
investments, loans, advances and Guarantees existing on the Effective Date)
shall not exceed 5% of Total Assets at any time outstanding (it being understood
that, for purposes of determining outstanding investments in Restricted
Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan
Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary
shall be deemed to reduce investments in Restricted Subsidiaries that are
Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or
disposition);
(e) loans or advances made by the Borrower to any Subsidiary and
made by any Restricted Subsidiary to the Borrower or any other Subsidiary;
provided that the amount of such loans and advances made by Loan Parties to
Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign
Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01;
provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated
Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations
pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt
is subordinated to such Guarantee of the Obligations on terms no less favorable
to the Lenders than the subordination provisions of the Subordinated Debt and
(C) such Guarantee of the Subordinated Debt provides for the release and
termination thereof, without action by any party, upon the sale or transfer of
the Equity Interests of such Restricted Subsidiary as a result of a foreclosure
of the Lien on such Equity Interests that secures the Obligations, where (1)
after such sale or transfer, such Restricted Subsidiary is no longer a
Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are
applied in accordance with the terms of the Subordinated Debt Documents that
would apply to a sale of such Equity
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Interests by the Borrower, and (ii) the aggregate principal amount of
Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that
are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject
to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; provided that the sum of all
consideration (other than common Equity Interests of Holdings) paid or otherwise
delivered in connection with Permitted Acquisitions (including the principal
amount of any Indebtedness issued as deferred purchase price and the fair market
value of any other non-cash consideration but excluding the amount of Net
Proceeds from Prepayment Events described in clause (a) of the definition of the
term Prepayment Event that are applied, in accordance with Section 2.11(c), to
make such Permitted Acquisitions) plus the aggregate principal amount of all
Indebtedness otherwise incurred or assumed in connection with, or resulting
from, Permitted Acquisitions (including Indebtedness of any acquired Persons
outstanding at the time of the applicable Permitted Acquisition) shall not
exceed, on a cumulative basis from the Effective Date, $75,000,000;
(i) any investments in or loans to any other Person received as
noncash consideration for sales, transfers, leases and other dispositions
permitted by Section 6.05; and
(j) any other investments in, advances or loans to or Guarantees of
Indebtedness of, any Person in an aggregate amount not to exceed $40,000,000 at
any time outstanding.
SECTION 6.05. Asset Sales. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any Equity Interest owned by it, nor will the
Borrower permit any of its Restricted Subsidiaries to issue any additional
Equity Interest in such Restricted Subsidiary, except:
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(a) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Restricted Subsidiary;
(c) sales of accounts receivable (i) that are delinquent or the
amount of which is in dispute, in each case in connection with the compromise or
collection thereof in the ordinary course of business, or (ii) of any account
debtor in connection with the termination, wind-down or restructuring of the
relationship with such account debtor in the ordinary course of business;
(d) sales, transfers and dispositions of any Equity Interests of,
loans or advances to, or other investments in, any Unrestricted Subsidiary; and
(e) sales, transfers and other dispositions of assets (other than
the sale of less than all of the Equity Interests in a Subsidiary owned by the
Borrower and its Subsidiaries) that are not permitted by any other clause of
this Section; provided that the aggregate fair market value of all assets sold,
transferred or otherwise disposed of in reliance upon this clause (e) shall not
exceed $75,000,000 in the aggregate from the Effective Date;
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (b) above) shall be made for fair
value and for at least 80% cash consideration and provided, further, that the
aggregate non-cash consideration received for all sales, transfers, leases and
other dispositions permitted hereby shall not exceed $20,000,000.
SECTION 6.06. Sale and Leaseback Transactions. The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereinafter 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 sold or transferred, except for any
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such sale of any fixed or capital assets that is made for cash consideration in
an amount not less than the cost of such fixed or capital asset and is
consummated within 90 days after the Borrower or such Subsidiary acquires or
completes the construction of such fixed or capital asset.
SECTION 6.07. Hedging Agreements. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, enter into any Hedging
Agreements, other than (a) Hedging Agreements entered into in the ordinary
course of business to hedge or mitigate risks to which the Borrower or any
Restricted Subsidiary is exposed in the conduct of its business or the
management of its liabilities and (b) Hedging Agreements entered into in order
to effectively exchange interest rates (from fixed to floating rates or
otherwise) with respect to any interest-bearing liability or investment of the
Borrower or any Restricted Subsidiary.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
(a) Other than the payment of amounts payable under the Acquisition Documents as
consideration for the Acquisition (or paying a dividend to Holdings to enable
Holdings to make any such payment), neither Holdings nor the Borrower will, nor
will they permit any Restricted Subsidiary to, declare or make, or agree to pay
or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except (i) Holdings may declare and pay
dividends with respect to its capital stock payable solely in additional shares
of its common stock, (ii) Subsidiaries may declare and pay dividends ratably
with respect to their capital stock, (iii) Holdings may make Restricted Payments
(and the Borrower may make Restricted Payments to Holdings to enable Holdings to
make such Restricted Payments), not exceeding $4,000,000 during any fiscal year,
pursuant to and in accordance with stock option plans or other benefit plans for
management or employees of the Borrower and its Subsidiaries, (iv) the Borrower
may pay dividends to Holdings at such times and in such amounts, not exceeding
$2,000,000 during any fiscal year, as shall be necessary to permit Holdings to
pay reasonable administrative expenses incurred in the ordinary course of its
business, (v) Holdings may make Restricted Payments (and the Borrower may make
Restricted Payments to Holdings to enable Holdings to
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make such Restricted Payments), not exceeding in any fiscal year the sum of (A)
$5,000,000 plus (B) an amount not to exceed an additional $5,000,000 less the
amount of Restricted Payments made by Holdings (and the Borrower) in reliance on
this clause (v) during the prior fiscal year and not exceeding $20,000,000 in
the aggregate from the Effective Date, to repurchase Equity Interests in
Holdings owned by employees or former employees of the Borrower or the
Subsidiaries pursuant to the terms of agreements (including employment
agreements) with such employees, (vi) the Borrower may make Restricted Payments
to Holdings to enable Holdings to pay management fees pursuant to the Management
Agreement that are permitted to be paid pursuant to clause (c) of Section 6.09,
(vii) the Borrower may make Restricted Payments to Holdings, and any Restricted
Subsidiary may make Restricted Payments to any Restricted Subsidiary, the
Borrower or to Holdings to pay any Tax with respect to income attributable to
the party making such Restricted Payments as the result of such party being a
member of a consolidated, affiliated or unitary group (for tax purposes) that
includes Holdings as its parent, (viii) the Borrower may make Restricted
Payments to Holdings at such times and in such amounts (but not prior to the
fifth anniversary of the date of issuance of the Holdings Discount Notes) as
shall be necessary to enable Holdings (A) on the fifth anniversary of the date
of issuance of the Holdings Discount Notes, to redeem the amount of Holdings
Discount Notes equal to the Holdings Discount Notes Redemption Amount and (B)
after such fifth anniversary, to make interest payments in cash on such Holdings
Discount Notes as and when due; provided, that at the time of and after giving
effect to each Restricted Payment made in reliance upon this clause (viii), the
Borrower and its Restricted Subsidiaries are in compliance with the covenants
contained in Sections 6.12 and 6.13 as of the end of the most recent fiscal
quarter for which financial statements are available assuming that Total Debt or
Total Senior Debt, as applicable, as of the last day of such quarter had been
equal to the Total Debt or Total Senior Debt, as applicable, as of the date of
such Restricted Payment after giving effect to such Restricted Payment, and (ix)
Holdings and the Borrower may make additional Restricted Payments for the
purposes contemplated by clauses (iii) through (v) of this Section 6.08(a) in an
aggregate amount not to exceed $10,000,000 from the Effective Date; provided
that any
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Restricted Payment otherwise permitted by clause (iii) and clauses (v) through
(ix) above shall not be permitted if at the time thereof and after giving effect
thereto a Default shall have occurred and be continuing; provided further, that
the provisions of clauses (iii) through (ix) above that permit certain dividends
or other Restricted Payments to Holdings shall not be construed to permit the
payment of dividends or other Restricted Payments to any other holder of Equity
Interests of the Borrower.
(b) Neither Holdings nor the Borrower will, nor will they permit any
Restricted Subsidiary to, make or agree to pay or make, directly or indirectly,
any payment or other distribution (whether in cash, securities or other
property) of or in respect of principal of or interest on any Indebtedness, or
any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancelation or termination of any
Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments
as and when due in respect of any Indebtedness, other than payments in
respect of the Subordinated Debt or Existing Notes prohibited by the
subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness;
(v) repayment of all amounts outstanding under the Fourth Amended
and Restated Credit Agreement dated as of June 5, 1998, among the
Borrower, certain of its subsidiaries, certain banks from time to time
parties thereto and JPMorgan Chase Bank, as agent, and purchase of the
Existing Notes accepted for payment pursuant to the Debt Tender Offer, in
each case on the Effective Date; and
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(vi) redemption of any Existing Notes that remain outstanding after
consummation of the Debt Tender Offer.
Notwithstanding the foregoing, Holdings may make a distribution (in the form of
a dividend or equity repurchase) to EMP Group L.L.C. with respect to Equity
Interests in Holdings owned by EMP Group L.L.C. (and the Borrower may pay a
dividend to Holdings to enable Holdings to make such distribution) with the Net
Proceeds received by the Borrower in connection with the issuance of the 2002
Senior Subordinated Notes in an amount equal to 50% of the gross proceeds
received by the Borrower in connection with the issuance of the 2002 Senior
Subordinated Notes; provided that the distribution shall be made within 60 days
of receipt of such Net Proceeds; provided further that at the time of the
declaration of such distribution and after giving effect thereto, no Default
shall have occurred and be continuing.
SECTION 6.09. Transactions with Affiliates. Neither Holdings nor the
Borrower will, nor will they permit any Restricted Subsidiary to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions that do not
involve Holdings and are at prices and on terms and conditions not less
favorable to the Borrower or such Restricted Subsidiary than could be obtained
on an arm's-length basis from unrelated third parties, (b) transactions between
or among the Borrower and the Subsidiary Loan Parties not involving any other
Affiliate, (c) to pay management fees in accordance with the Management
Agreement in an aggregate amount not to exceed $750,000 in any fiscal year, (d)
any Restricted Payment permitted by Section 6.08 and (e) the contribution to the
Borrower by Holdings of the Equity Interests in Weider Publications purchased
with the membership interests in EMP Group L.L.C. that are initially held by EMP
Group L.L.C. and contributed by EMP Group L.L.C. to Holdings as an equity
contribution in connection with the Weider Acquisition.
SECTION 6.10. Restrictive Agreements. Neither Holdings nor the
Borrower will, nor will they permit any
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Restricted Subsidiary 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 Holdings, the Borrower or any Restricted
Subsidiary to create, incur or permit to exist any Lien upon any of its property
or assets, or (b) the ability of any Restricted Subsidiary to pay dividends or
other distributions with respect to any shares of its capital stock or to make
or repay loans or advances to the Borrower or any other Restricted Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by any Loan Document or Subordinated Debt Document, (ii) the
foregoing shall not apply to restrictions and conditions existing on the
Effective Date identified on Schedule 6.10 (but shall apply to 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
such restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to
Indebtedness permitted by this Agreement if and to the extent that such
agreement relating to such Indebtedness shall permit any and all Liens, whether
entered into, incurred or permitted to exist prior to, on or after the date of
such agreement, securing any Obligations, whether such Obligations arise prior
to, on or after the date of such agreement, and any Indebtedness incurred to
refinance any such Obligations, (v) clause (a) of the foregoing shall not apply
to restrictions or conditions imposed by any agreement relating to Indebtedness
of a Foreign Subsidiary permitted by this Agreement if such restrictions or
conditions apply only to the property or assets of such Foreign Subsidiary and
(vi) clause (a) of the foregoing shall not apply to customary provisions in
leases restricting the assignment thereof.
SECTION 6.11. Amendment of Material Documents. Neither Holdings nor
the Borrower will, nor will they permit any Subsidiary to, amend, modify or
waive any of its rights under (a) any Subordinated Debt Document, (b) its
certificate of incorporation, by-laws or other
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organizational documents, (c) the Existing Notes Indenture other than as
contemplated by the Debt Tender Offer, (d) the LLC Agreement, (e) the Management
Agreement and (f) the Holdings Discount Notes Documents, in each case in any
manner that is adverse to the interests of the Lenders or the Loan Parties.
SECTION 6.12. Leverage Ratio. The Borrower will not permit the
Leverage Ratio as of the last day of any fiscal quarter ending on any date
during any period set forth below to exceed the ratio set forth below opposite
such period:
Period Ratio
------ -----
January 23, 2003 to and
including September 30, 2004 6.25 to 1.00
October 1, 2004 to and
including March 31, 2005 6.00 to 1.00
April 1, 2005 to and
including September 30, 2005 5.75 to 1.00
October 1, 2005 to and
including March 31, 2006 5.50 to 1.00
April 1, 2006 to and
including September 30, 2006 5.00 to 1.00
Thereafter 4.75 to 1.00
SECTION 6.13. Senior Leverage Ratio. The Borrower will not permit
the Senior Leverage Ratio as of the last day of any fiscal quarter ending on any
date during any
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period set forth below to exceed the ratio set forth below opposite such period:
Period Ratio
------ -----
February 11, 2002
to and including
September 30, 2003 3.50 to 1.00
Thereafter 3.00 to 1.00
SECTION 6.14. Consolidated Interest Expense Coverage Ratio. The
Borrower will not permit the ratio of (a) Consolidated EBITDA to (b)
Consolidated Interest Expense for any period of four consecutive fiscal quarters
ending on any date during any period set forth below to be less than the ratio
set forth below opposite such period:
Period Ratio
------ -----
February 11, 2002 to and
including September 30, 2004 1.75 to 1.00
October 1, 2004 to and
including March 31, 2006 1.90 to 1.00
Thereafter 2.15 to 1.00
For purposes of determining compliance with this Section 6.14, Consolidated
Interest Expense for the period of four consecutive fiscal quarters ended (i)
September 27, 1999, shall be deemed to be equal to the product of Consolidated
Interest Expense for the fiscal quarter then ended multiplied by four, (ii)
December 27, 1999, shall be deemed to be equal to the product of Consolidated
Interest Expense for the two consecutive fiscal quarters then ended multiplied
by two and (iii) March 27, 2000, shall be deemed to be equal to the product of
Consolidated Interest Expense for the three consecutive fiscal quarters then
ended multiplied by four-thirds.
SECTION 6.15. Consolidated Fixed Charge Coverage Ratio. The Borrower
will not permit the ratio of (a) Consolidated EBITDA minus Taxes paid in cash by
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Holdings, the Borrower and its Restricted Subsidiaries to (b) Consolidated Fixed
Charges for any period of four consecutive fiscal quarters ending on any date on
or after September 27, 1999, to be less than 1.10 to 1.00. For purposes of
determining compliance with this Section 6.15, Consolidated Fixed Charges for
the period of four consecutive fiscal quarters ended (i) September 27, 1999,
shall be deemed to be equal to the product of Consolidated Fixed Charges for the
fiscal quarter then ended multiplied by four, (ii) December 27, 1999, shall be
deemed to be equal to the product of Consolidated Fixed Charges for the two
consecutive fiscal quarters then ended multiplied by two and (iii) March 27,
2000, shall be deemed to be equal to the product of Consolidated Fixed Charges
for the three consecutive fiscal quarters then ended multiplied by four-thirds.
SECTION 6.16. Capital Expenditures. The Borrower and its Restricted
Subsidiaries shall not incur or make Capital Expenditures during any fiscal year
in excess of $40,000,000 in the aggregate; provided that 50% of the unused
amount of any Capital Expenditures permitted to be made during each fiscal year
and not made during such fiscal year may be carried over and expended during the
next succeeding fiscal year (and any amount so carried over shall be deemed the
first amount applied and expended for Capital Expenditures during such next
succeeding fiscal year).
ARTICLE VII
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 any
fee or any other amount (other than an amount referred to in clause (a) of this
Article) payable
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under this Agreement or any other 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 Holdings, the Borrower or any Subsidiary in or in connection with any
Loan Document or any amendment or modification thereof 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 thereof or waiver thereunder, shall prove to have been incorrect
(or, in the case of any such representation or warranty that is not qualified as
to materiality, incorrect in any material respect) when made or deemed made;
(d) Holdings or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with respect
to the existence of Holdings or the Borrower) or 5.11 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (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 notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender);
(f) Holdings, the Borrower or any Restricted Subsidiary shall fail
to make any payment of principal or interest (regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable
(after giving effect to any applicable period of grace, in the case of
interest);
(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
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secured Indebtedness that becomes due 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 Holdings, the Borrower or any Restricted 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 Holdings, the Borrower or any Restricted
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) Holdings, the Borrower or any Restricted 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 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 Holdings, the Borrower or any
Restricted 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) Holdings, the Borrower or any Restricted 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 $5,000,000 shall be rendered against Holdings, the Borrower,
any Restricted
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Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 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 Holdings, the Borrower or any Restricted Subsidiary to
enforce any such judgment;
(l) an ERISA Event shall have occurred that, when taken together
with all other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect;
(m) 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 Collateral Agreement; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
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
Commitments, and thereupon the 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 the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in
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clause (h) or (i) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
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 VIII
The Agents
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
JPMorgan Chase Bank as Administrative Agent and Collateral Agent (for purposes
of this Article VIII, collectively, the "Agent") and authorizes the Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Agent by the terms of the Loan Documents, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the 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 Agent, and such bank and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if
it were not the Agent hereunder.
The Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the 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 Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), and (c) except as expressly set forth in the Loan Documents, the
Agent shall not have any duty to
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disclose, and shall not be liable for the failure to disclose, any information
relating to Holdings, the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Agent or any of its
Affiliates in any capacity. The 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 Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or wilful misconduct. The Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Agent by Holdings, the Borrower or a Lender, and the 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 in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Agent.
The 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 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 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 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 Agent. The
Agent and any such sub-agent may perform any and all its duties and exercise
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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 each 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 Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, the Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor 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 Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such
retiring 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 Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender 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 this
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Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. 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 Holdings or the Borrower, to it at American Media
Operations, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇) and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to EMP Group L.L.C., ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and
Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Issuing Bank, to it at JPMorgan Chase Bank, Loan and
Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(d) if to the Swingline Lender, to it at JPMorgan Chase Bank, Loan
and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
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(e) if to any other Lender, 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 Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other 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 remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
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 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
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, the Collateral Agent,
any Lender or the Issuing Bank may have had notice or knowledge of such Default
at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, the Borrower and the Required Lenders or, in the case
of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Collateral Agent and the Loan Party or Loan Parties that are
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parties thereto, in each case with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the maturity of any Loan, or any scheduled date of payment of the
principal amount of any Term Loan under Section 2.10, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any
interest or fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change Section
2.18(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of
the provisions of this Section or the percentage set forth in the definition of
"Required Lenders" or any other provision of any Loan Document specifying the
number or percentage of Lenders (or Lenders of any Class) required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender (or each Lender
of such Class, as the case may be), (vi) release all or any substantial part of
the Guarantees made by Holdings and the Subsidiary Loan Parties under the
Guarantee Agreement (except as expressly provided in the Guarantee Agreement),
or limit their liability in respect of all or any substantial part of such
Guarantees, without the written consent of each Lender, (vii) release all or any
substantial part of the Collateral from the Liens of the Security Documents,
without the written consent of each Lender, (viii) change any provisions of any
Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of any Class differently than
those holding Loans of any other Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each adversely affected Class or (ix) change the rights of the Tranche B
Lenders to decline mandatory prepayments as provided in Section 2.11, without
the written consent of Tranche B Lenders holding a majority of the outstanding
Tranche B Loans; provided further that (A) no such agreement shall amend, modify
or otherwise affect the
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rights or duties of the Administrative Agent, the Collateral Agent, the Issuing
Bank or the Swingline Lender without the prior written consent of the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline
Lender, as the case may be, and (B) any waiver, amendment or modification of
this Agreement that by its terms affects the rights or duties under this
Agreement of the Revolving Lenders (but not the Tranche A Lenders and Tranche B
Lenders), the Tranche A Lenders (but not the Revolving Lenders and Tranche B
Lenders) or the Tranche B Lenders (but not the Revolving Lenders and Tranche A
Lenders) may be effected by an agreement or agreements in writing entered into
by Holdings, the Borrower and requisite percentage in interest of the affected
Class of Lenders. Notwithstanding the foregoing, any provision of this Agreement
may be amended by an agreement in writing entered into by the Borrower, the
Required Lenders and the Administrative Agent (and, if their rights or
obligations are affected thereby, the Issuing Bank and the Swingline Lender) if
(i) by the terms of such agreement the Commitment of each Lender not consenting
to the amendment provided for therein shall terminate upon the effectiveness of
such amendment and (ii) at the time such amendment becomes effective, each
Lender not consenting thereto receives payment in full of the principal of and
interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent and their Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and the Collateral Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable 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 and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent, the Issuing Bank or any Lender,
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including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender, 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 the Administrative Agent, the
Collateral Agent, the Issuing Bank and each Lender, and each Related Party of
any of the foregoing Persons (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 other agreement or instrument
contemplated hereby, 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 hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by 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 Mortgaged Property or Restatement Mortgaged
Property or any other property currently or formerly owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its 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 resulted from the gross
negligence or wilful misconduct of such Indemnitee.
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(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Collateral Agent, the Issuing
Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, the Collateral
Agent, the Issuing Bank or the Swingline Lender, as the case may be, such
Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Collateral Agent, the Issuing Bank or the
Swingline Lender in its capacity as such. For purposes hereof, a Lender's "pro
rata share" shall be determined based upon its share of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Holdings nor
the Borrower shall assert, and each 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, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied,
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shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b)(i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the Borrower; provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved
Fund or, if an Event of Default under clause (a), (b), (h) or (i) of Article VII
has occurred and is continuing, any other assignee; and
(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of any Revolving
Commitment to an assignee that is a Lender with a Revolving Commitment
immediately prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment or Loans of any Class, the amount of the Commitment or Loans
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 (x) $5,000,000, in the case
of Revolving Commitments, Revolving Loans and Tranche A Term Loans and (y)
$1,000,000, in the case of Tranche C Term Loans or Tranche C-1 Term Loans,
unless each of the Borrower and the Administrative Agent otherwise
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consent; provided that no such consent of the Borrower shall be required if an
Event of Default under clause (a), (b), (h) or (i) of Article VII has occurred
and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement; provided that this clause shall not be construed to prohibit the
assignment of a proportionate part of all the assigning Lender's rights and
obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) 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 this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue
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to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 9.04 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices 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
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, and Holdings, the Borrower, the Administrative Agent, the Issuing
Bank and the Lenders 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 Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(v) 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 Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c)(i) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender's obligations
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under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) Holdings, the Borrower, the Administrative Agent, the Issuing Bank and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. 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 this
Agreement and to approve any amendment, modification or waiver of any provision
of the 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
9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 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 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable 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 2.17 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
2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement 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;
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provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this 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 the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the
Collateral Agent, the Issuing Bank or any Lender 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 fee or any
other amount payable under this Agreement 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 2.15, 2.16, 2.17 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
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 a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent and Collateral Agent 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. This Agreement shall become
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effective as provided in the Amendment and Restatement Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off 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 such Lender or Affiliate 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 Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all
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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 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 Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against Holdings, the Borrower or its properties in
the courts of any jurisdiction.
(c) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document 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 law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. 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 ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 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
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ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' and its Approved Funds' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), or to any direct or indirect contractual counterparty
in swap agreements or such contractual counterparty's professional advisor (so
long as such contractual counterparty or professional advisor agrees to be bound
by the provisions of this Section 9.12), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the Issuing Bank or any Lender on
a nonconfidential basis from a source other than Holdings or the Borrower. For
the purposes of this Section, "Information" means all information received from
Holdings or the Borrower relating to Holdings or the Borrower or its business,
other than any such information that is available to the Administrative Agent,
the Issuing Bank or any Lender
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on a nonconfidential basis prior to disclosure by Holdings or the Borrower. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. 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 which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which 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 Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and 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 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 Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Existing Credit Agreement; Effectiveness of Amendment
and Restatement. Until this Agreement becomes effective in accordance with the
terms of the Amendment and Restatement Agreement, the Existing Credit Agreement
shall remain in full force and effect and shall not be affected hereby. After
the Restatement Effective Date, all obligations of the Borrower under the
Existing Credit Agreement shall become obligations of the Borrower hereunder,
secured by the Security Documents, and the provisions of the Existing Credit
Agreement shall be superseded by the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
AMERICAN MEDIA, INC.,
by
----------------------------
Name:
Title:
AMERICAN MEDIA OPERATIONS, INC.,
by
----------------------------
Name:
Title:
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by
----------------------------
Name:
Title:
(THE OTHER LENDERS, ISSUING BANKS
AND SWINGLINE LENDERS THAT ARE
SIGNATORIES TO THE AMENDMENT AND
RESTATEMENT AGREEMENT)
by
----------------------------
Name:
Title: