EXECUTION VERSION
FIRST AMENDMENT AND AGREEMENT, dated as of March 31, 1998
(this "First Amendment") to the Credit Agreement dated as of October 28, 1997
(as heretofore amended, supplemented or otherwise modified, the "Credit
Agreement"), among CARIBINER INTERNATIONAL, INC., a Delaware corporation (the
"Parent"), CARIBINER, INC., a New York corporation (the "Company"; together
with the Parent, "Borrowers"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), THE CHASE
MANHATTAN BANK, as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent") and XXXXXXX XXXXX CAPITAL CORPORATION, as Syndication
Agent (in such capacity, the "Syndication Agent").
W I T N E S S E T H :
WHEREAS, the Borrowers, the Lenders, the Administrative Agent
and the Syndication Agent are parties to the Credit Agreement;
WHEREAS, the Borrowers have advised the Administrative Agent
and the Lenders that, in accordance with Section 7.05 of the Credit Agreement,
the Parent proposes to transfer the Capital Stock of CEL, subject to the
charge on such Capital Stock under the CEL Pledge Agreement, to the Company,
which, in turn, proposes to transfer such Capital Stock, subject to such
charge, to Target Acquisition Corp. (collectively, the "UK Reorganization");
WHEREAS, the Borrowers have further advised the
Administrative Agent and the Lenders that, (a) on or around April 1, 1998,
Target will cease to be an Excluded Foreign Subsidiary and (b) in connection
with the UK Reorganization, Target Acquisition Corp. is required to issue
additional shares of Capital Stock to the Company to reflect a portion of the
Company's investment in Target Acquisition Corp.;
WHEREAS, the Borrowers have requested that the Lenders agree
(a) to amend the Credit Agreement in certain respects to reflect the UK
Reorganization, (b) to amend the Target Acquisition Corp. Pledge Agreement to
permit the issuance of additional shares of its Capital Stock to the Company
(subject to the charge therein under the Target Acquisition Corp. Pledge
Agreement) and (c) to permit the Borrowers until June 15, 1998 to comply with
the Borrowers' obligations under Section 6.10 of the Credit Agreement arising
as a result of Target ceasing to be an Excluded Foreign Subsidiary; and
WHEREAS, the Lenders are willing to so agree, but only upon
the terms and conditions of this First Amendment;
NOW THEREFORE, in consideration of the premises and for
other good and valuable consideration the receipt of which is hereby
acknowledged, the Borrowers, the Lenders and the Administrative Agent hereby
agree as follows:
2
1. Defined Terms. Capitalized terms used herein and not
otherwise defined shall have their respective meanings set forth in the Credit
Agreement.
2. Consent to UK Reorganization. Upon satisfaction of the
conditions precedent set forth in Section 8 below, the Lenders hereby consent
to the UK Reorganization.
3. Amendment to Subsection 1.01. Subsection 1.01 of the
Credit Agreement is hereby amended by (a) deleting the words "the Parent" from
the definition of the term "CEL Pledge Agreement" and (b) substituting
therefor the words "Target Acquisition Corp.".
4. Amendment to Exhibit D-2. Exhibit D-2 of the Credit
Agreement is hereby amended by (a) deleting said Exhibit in its entirety and
(b) substituting therefor Exhibit 1 to this First Amendment.
5. Agreement Concerning Section 6.10. The Borrowers and the
Lenders hereby agree that, on or before June 15, 1998, the Borrowers shall:
(a) cause Target Acquisition Corp. to (i) execute
and deliver to the Administrative Agent a new pledge agreement,
substantially in the form of the Target Pledge Agreement, or such
amendments to the Target Pledge Agreement as the Administrative Agent
deems necessary or advisable in order to grant to the Administrative
Agent, for the benefit of the Lenders, a perfected first priority
security interest in 100% of the Capital Stock of Target, (ii)
deliver to the Administrative Agent share certificates representing
such Capital Stock, registered in the name of the Administrative
Agent or its nominee and (iii) take all other actions the
Administrative Agent deems necessary or advisable in order to grant
to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in such Capital Stock;
(b) cause Target (i) to (A) execute and deliver to
the Administrative Agent a new pledge agreement or pledge agreements,
in form and substance satisfactory to the Administrative Agent,
granting to the Administrative Agent, for the benefit of the Lenders,
a perfected first priority security interest in 100% of the Capital
Stock of the Subsidiaries of Target that are Domestic Subsidiaries
and a perfected security interest in the Capital Stock of each
Excluded Foreign Subsidiary which is owned by Target (provided that
in no event shall more than 65% of the Capital Stock of any such
Excluded Foreign Subsidiary be required to be so pledged), (B)
deliver to the Administrative Agent, in the case of each such
Domestic Subsidiary of Target, the certificates representing the
Capital Stock of such Domestic Subsidiaries, together with undated
stock powers, in blank, executed and delivered by a duly authorized
officer of Target and, in the case of each such Excluded Foreign
Subsidiary of Target, share certificates representing the Capital
Stock of such Excluded Foreign Subsidiaries, registered in the name
of the Administrative Agent or its nominee and (C) take all other
actions necessary or advisable to grant to the Administrative Agent,
for the benefit of the Lenders, a perfected first priority security
interest in all such Capital Stock; (ii) to (A) become a party to one
or more security agreements substantially in
3
the form of Exhibit E to the Credit Agreement and (B) take such actions
necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest
in the collateral (subject to Liens permitted by Section 7.03) to be
described in such security agreement(s), including, without
limitation, the filing of UCC financing statements in such
jurisdictions as may be required by such security agreement or by law
or as may be requested by the Administrative Agent, (iii) to become a
party to a guarantee substantially in the form of Exhibit F-2 of the
Credit Agreement;
(c) cause each Domestic Subsidiary of Target that
is a Significant Subsidiary (i) to (A) become a party to one or more
security agreements, in form and substance satisfactory to the
Administrative Agent, and (B) take such actions necessary or
advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in the
collateral (subject to Liens permitted by Section 7.03) to be
described in such security agreement(s), including, without
limitation, the filing of UCC financing statements in such
jurisdictions as may be required by such security agreement or by law
or as may be requested by the Administrative Agent, and (ii) to
become a party to a guarantee substantially in the form of Exhibit
F-1 of the Credit Agreement; and
(d) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the
matters described in the preceding clauses (a), (b) and (c), which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
6. Agreement Concerning Target Acquisition Corp. Pledge
Agreement. The Lenders hereby consent to the execution and delivery by the
Administrative Agent of an amendment to the Target Acquisition Corp. Pledge
Agreement substantially in the form of Exhibit 2 to this First Amendment.
7. Representations and Warranties; No Default. After giving
effect to this First Amendment, the Borrowers hereby represent and warrant
that all representations and warranties contained in the Credit Agreement are
true and correct as of the date hereof (unless stated to relate to a specific
earlier date, in which case, such representations and warranties shall be true
and correct in all material respects as of such earlier date) and that no
Default or Event of Default shall have occurred and be continuing or would
result from the execution and delivery of this First Amendment.
8. Conditions to Effectiveness of this First Amendment. This
First Amendment shall be effective as of the date first set forth above upon
the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of
counterparts hereof duly executed and delivered by the Borrowers and
Majority Lenders and consented to by the Loan Parties (other than the
Borrowers);
4
(b) receipt by the Administrative Agent of (i) a
Mortgage of Shares duly executed and delivered by Target Acquisition
Corp. and the Administrative Agent, substantially in the form of
Exhibit 1 hereto and otherwise in form and substance satisfactory to
the Administrative Agent, granting to the Administrative Agent, for
the benefit of the Lenders, a perfected first priority security
interest in 100% of the Capital Stock of CEL, (ii) share certificates
representing such Capital Stock, registered in the name of the
Administrative Agent or its nominee and (iii) a legal opinion of
Xxxxx & Xxxxx, special English counsel to the Administrative Agent,
relating to the matters described in the preceding clauses (i) and
(ii), which opinion shall be in form and substance reasonably
satisfactory to the Administrative Agent; and
(c) the payment by the Borrowers of all amounts
owing under the Credit Agreement, the payment of which has been
requested on or prior to the date hereof, including amounts owing in
respect of interest, fees and expenses.
9. Miscellaneous. (a) Except as expressly amended by this
First Amendment, the Credit Agreement is and shall continue to be in full
force and effect in accordance with its terms, and this First Amendment shall
not constitute the Lenders' consent or indicate their willingness to consent
to any other amendment, modification or waiver of the Credit Agreement or the
other Loan Documents.
(b) This First Amendment may be executed by the parties
hereto on one or more counterparts, and all of such counterparts shall be
deemed to constitute one and the same instrument. This First Amendment may be
delivered by facsimile transmission of the relevant signature pages hereof.
(c) This First Amendment shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
First Amendment to be executed and delivered by their respective duly
authorized officers as of the date first above written.
CARIBINER CARIBINER INTERNATIONAL, INC.
By /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Exec. V.P. and Chief
Financial and Administrative
Officer
5
CARIBINER, INC.
By /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial and
Administrative Officer
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent
By /s/ Xxxxxx X. Xxx
---------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
XXXXXXX XXXXX CAPITAL CORPORATION,
individually and as Syndication Agent
By /s/ Xxxxxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Vice President
BANKBOSTON, N.A.
By /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY
By /s/ G. Xxxxxx Xxxxx
--------------------------------
Name: G. Xxxxxx Xxxxx
Title: Vice President
0
XXX XXXX XX XXX XXXX
By /s/ Xxxxxx X. Xxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Relationship Manager
CREDIT AGRICOLE INDOSUEZ
By
------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
FLEET BANK, N.A.
By /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
7
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By
------------------------------------
Name:
Title:
NATIONSBANK, N.A.
By /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By
------------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
BANK POLSKA, KASA OPIEKI S.A.
PEKAO S.A. GROUP, NEW YORK BRANCH
By /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Lending Officer
8
SUMMIT BANK
By /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Vice President
