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Exhibit 10.1
CREDIT AGREEMENT
Dated as of August 7, 1998
among
PENTON MEDIA, INC.,
and
PENTON MEDIA LIMITED,
as Borrowers,
THE SUBSIDIARY GUARANTORS
FROM TIME TO TIME PARTY HERETO,
THE LENDERS
FROM TIME TO TIME PARTY HERETO,
KEY CORPORATE CAPITAL INC.,
as Co-Agent,
and
FIRST UNION NATIONAL BANK,
as Administrative Agent
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TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS......................................................................1
1.1 Defined Terms..................................................................1
1.2 Other Definitional Provisions.................................................21
1.3 Accounting Terms..............................................................22
SECTION 2. THE LOANS; AMOUNT AND TERMS.....................................................22
2.1 Revolving Loans...............................................................22
2.2 Foreign Currency Loan Subfacility.............................................25
2.3 Default Rate..................................................................26
2.4 Extension and Conversion......................................................27
2.5 Reductions and Increase in Commitments and Prepayments........................27
2.6 Replacement of Lenders under Certain Circumstances............................29
2.7 Fees..........................................................................30
2.8 Eurocurrency Reserve Compensation.............................................30
2.9 Capital Adequacy..............................................................30
2.10 Unavailability...............................................................31
2.11 Illegality...................................................................31
2.12 Requirements of Law..........................................................32
2.13 Taxes........................................................................34
2.14 Indemnity....................................................................37
2.15 Pro Rata Treatment...........................................................37
2.16 Sharing of Payments..........................................................38
2.17 Payments, Computations, Etc..................................................39
2.18 Change of Currency...........................................................41
SECTION 3. REPRESENTATIONS AND WARRANTIES..................................................42
3.1 Financial Condition...........................................................42
3.2 No Change.....................................................................42
3.3 Existence; Compliance with Law................................................42
3.4 Power; Authorization; Enforceable Obligations.................................42
3.5 No Legal Bar; No Default......................................................43
3.6 No Material Litigation........................................................43
3.7 Investment Company Act........................................................44
3.8 Federal Regulations...........................................................44
3.9 ERISA.........................................................................44
3.10 Environmental Matters........................................................44
3.11 Purpose of Loan..............................................................45
3.12 Subsidiaries.................................................................46
3.13 Intellectual Property Rights.................................................46
3.14 No Burdensome Restrictions...................................................47
3.15 Taxes........................................................................47
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3.16 No Interest in Real Estate...................................................47
SECTION 4. CONDITIONS PRECEDENT............................................................47
4.1 Conditions to Closing Date....................................................47
4.2 Conditions to All Loans.......................................................50
SECTION 5. AFFIRMATIVE COVENANTS..........................................................50
5.1 Financial Statements..........................................................50
5.2 Certificates; Other Information...............................................51
5.3 Payment of Obligations........................................................52
5.4 Conduct of Business and Maintenance of Existence..............................52
5.5 Maintenance of Property; Insurance............................................52
5.6 Inspection of Property; Books and Records; Discussions........................53
5.7 Certain Notices...............................................................53
5.8 Environmental Laws............................................................54
5.9 Financial Covenants...........................................................54
5.10 Covenants Regarding Patents, Trademarks and Copyrights.......................55
5.11 Fees, Etc....................................................................55
5.12 Subsidiaries.................................................................55
5.13 Payment of Taxes and Other Indebtedness......................................56
5.14 Year 2000 Compatibility......................................................56
SECTION 6. NEGATIVE COVENANTS.............................................................56
6.1 Indebtedness..................................................................56
6.2 Liens.........................................................................57
6.3 Guaranty Obligations..........................................................58
6.4 Lines of Business.............................................................58
6.5 Consolidation, Merger, Sale or Purchase of Assets, etc........................58
6.6 Advances, Investments and Loans...............................................59
6.7 Transactions with Affiliates..................................................59
6.8 Ownership of Subsidiaries.....................................................60
6.9 Fiscal Year...................................................................60
6.10 Prepayments of Indebtedness, etc.............................................60
6.11 Restricted Payments..........................................................60
6.12 Partnership and Corporate Documents..........................................61
SECTION 7. EVENTS OF DEFAULT...............................................................61
SECTION 8. THE ADMINISTRATIVE AGENT........................................................64
8.1 Appointment...................................................................64
8.2 Delegation of Duties..........................................................64
8.3 Exculpatory Provisions........................................................64
8.4 Reliance by Administrative Agent..............................................65
8.5 Notice of Default.............................................................65
8.6 Non-Reliance on Administrative Agent and Other Lenders........................66
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8.7 Indemnification...............................................................66
8.8 Administrative Agent in Its Individual Capacity...............................67
8.9 Successor Administrative Agent................................................67
SECTION 9. MISCELLANEOUS...................................................................67
9.1 Amendments, Waivers and Release of Collateral.................................67
9.2 Notices.......................................................................68
9.3 No Waiver; Cumulative Remedies................................................69
9.4 Survival of Representations and Warranties....................................70
9.5 Payment of Expenses and Taxes.................................................70
9.6 Successors and Assigns; Participations; Purchasing Lenders....................71
9.7 Adjustments; Set-off..........................................................74
9.8 Table of Contents and Section Headings........................................75
9.9 Counterparts..................................................................75
9.10 Severability.................................................................75
9.11 Integration..................................................................75
9.12 Governing Law................................................................75
9.13 Consent to Jurisdiction and Service of Process...............................76
9.14 Arbitration..................................................................76
9.15 Confidentiality..............................................................77
9.16 Acknowledgments..............................................................78
SECTION 10. GUARANTY......................................................................78
10.1 The Guaranty.................................................................78
10.2 Bankruptcy...................................................................79
10.3 Nature of Liability..........................................................79
10.4 Independent Obligation.......................................................80
10.5 Authorization................................................................80
10.6 Reliance.....................................................................80
10.7 Waiver.......................................................................80
10.8 Limitation on Enforcement....................................................82
10.9 Confirmation of Payment......................................................82
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Schedules
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Schedule 1.1 Schedule of Existing Liens.
Schedule 2.1 (a) Schedule of Lenders and Commitments
Schedule 2.1 (b)(i) Form of Notice of Borrowing/Revolving Loans
Schedule 2.1 (b)(iii) Form of Notice of Account Designation
Schedule 2.2 (b)(i) Form of Notice of Borrowing/Foreign Currency Loans
Schedule 2.1 (e) Form of Revolving Note
Schedule 2.2 (d) MLA Cost
Schedule 2.4 Form of Notice of Conversion/Extension
Schedule 3.6 Litigation
Schedule 3.12 Subsidiaries
Schedule 3.13 Intellectual Property
Schedule 3.16 Real Property
Schedule 4.1 (d) Form of Secretary's Certificate
Schedule 4.1 (f)(ii) Form of Solvency Certificate
Schedule 5.12 Form of Joinder Agreement
Schedule 6.1 (b) Indebtedness
Schedule 9.6 (c) Form of Commitment Transfer Supplement
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of August 7, 1998, among PENTON MEDIA, INC.,
a Delaware corporation ("PENTON USA"), and PENTON MEDIA LIMITED, an English
limited liability company ("PENTON UK") (Penton USA and Penton UK being each a
"BORROWER", and collectively, the "BORROWERS"), the subsidiaries of the
Borrowers listed on the signature pages hereto and such other subsidiaries of
the Borrowers as may from time to time become guarantors in accordance with the
provisions hereof (each a "SUBSIDIARY Guarantor", and collectively, the
"SUBSIDIARY GUARANTORS"), the several banks, financial institutions and other
investors from time to time parties to this Agreement (the "LENDERS"), KEY
CORPORATE CAPITAL INC., as Co-Agent, and FIRST UNION NATIONAL BANK, as
administrative agent for the Lenders (in such capacity, the "AGENT" or the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers have requested the Lenders to make revolving
loans in an amount up to $75,000,000 as more particularly described herein;
WHEREAS, the Lenders are willing to make such loans on the terms and
conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS.
As used in this Agreement, terms defined in the preamble to this
Agreement have the meanings therein indicated, and the following terms have the
following meanings:
"ACQUIRED ASSETS": the assets and/or stock of DM Publishing to
be acquired pursuant to the Combination Agreement.
"ACQUISITION": the acquisition by either Borrower (or one of
such Borrower's wholly-owned Subsidiaries) of the Acquired Assets
pursuant to the Combination Agreement.
"ADJUSTED EBITDA": of any Person for any period, EBITDA for
such period ("UNADJUSTED EBITDA") PLUS (i) if such Person made any
acquisition permitted by
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Section 6.5(b) during such period, EBITDA generated from such
acquisitions ("Acquired EBITDA") as if such acquisitions occurred at
the beginning of the applicable period except to the extent such
Acquired EBITDA has already been included in the calculation of
Unadjusted EBITDA for such period, MINUS (ii) if such Person has sold
or otherwise divested any businesses permitted by Section 6.5(a) during
such period, EBITDA generated from such sold or divested businesses as
if such sales or divestitures occurred at the beginning of the
applicable period.
"AFFILIATE": as to any Person, any other Person (excluding any
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, a Person shall be deemed to be "controlled
by" a Person if such Person possesses, directly or indirectly, power
either (a) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) to direct or
cause the direction of the management and policies of such Person
whether by contract or otherwise.
"AGGREGATE REVOLVING COMMITTED AMOUNT": the aggregate amount
of all of the Revolving Commitments in effect from time to time, as
reduced from time to time as provided in Section 2.5.
"AGREEMENT" OR "CREDIT AGREEMENT": this Credit Agreement, as
amended, supplemented or modified from time to time in accordance with
its terms.
"APPLICABLE COMMITMENT FEE PERCENTAGE": for any day, the rate
per annum set forth below opposite the applicable Leverage Ratio then
in effect:
===========================================================
Leverage
Ratio Percentage
-----------------------------------------------------------
greater than 3.00 0.250%
-----------------------------------------------------------
less than or equal to 3.00 but greater than 2.50 0.1875%
-----------------------------------------------------------
less than or equal to 2.50 0.125%
============================================================
The Applicable Commitment Fee Percentage shall, in each case, be
determined and adjusted (a) quarterly on the date three (3) Business
Days after the date of receipt by the Administrative Agent of the
quarterly compliance certificate and financial information provided in
accordance with Sections 5.1(b) and 5.2(b) and (b) on each date that
the Borrowers make an acquisition pursuant to Section 6.5(b) (iii)
hereof (each a COMMITMENT FEE DETERMINATION DATE").
Such Applicable Commitment Fee Percentage shall be effective from such
Commitment Fee Determination Date until the next such Commitment Fee
Determination Date. The
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initial Applicable Commitment Fee Percentage shall be 0.125% until the
first Commitment Fee Determination Date occurring after Closing Date.
"APPLICABLE INTEREST RATE PERCENTAGE": for any day, the rate
per annum set forth below as the "Eurocurrency Margin" opposite the
applicable Leverage Ratio then in effect:
=================================================================
Leverage Eurocurrency
Ratio Margin
-----------------------------------------------------------------
greater than 3.00 .875%
-----------------------------------------------------------------
less than or equal to 3.00 but greater than 2.50 .750%
-----------------------------------------------------------------
less than or equal to 2.50 but greater than 2.00 .625%
-----------------------------------------------------------------
less than or equal to 2.00 .500%
=================================================================
The Applicable Interest Rate Percentage shall, in each case, be
determined and adjusted (a) quarterly on the date three (3) Business
Days after the date of receipt by the Administrative Agent of the
quarterly compliance certificate and financial information provided in
accordance with Sections 5.1(b) and 5.2(b) and (b) on each date that
the Borrowers make an acquisition pursuant to Section 6.5(b) (iii)
hereof (each an "INTEREST DETERMINATION DATE").
Such Applicable Interest Rate Percentage shall be effective from such
Interest Determination Date until the next such Interest Determination
Date. The initial Applicable Interest Rate Percentage shall be 0.50%
until the first Interest Determination Date occurring after the Closing
Date.
"ASSET DISPOSITION": any sale, lease, transfer or other
disposition (including any such transaction effected by way of merger,
amalgamation or consolidation) by either of the Borrowers or any of
such Borrower's Subsidiaries subsequent to the Closing Date of any
asset (including stock or other equity interests in Subsidiaries of a
Borrower), including without limitation any sale leaseback transaction
(whether or not involving a Capital Lease), but excluding Specified
Sales.
"AUTHORIZED SIGNATORY": the Chief Executive Officer,
President, Chief Financial Officer, Senior Vice President or Secretary
of a Borrower or any director of Penton UK and such other senior
personnel of a Borrower as may be hereafter duly authorized and
designated in writing to execute documents, agreements and instruments
on such Borrower's behalf.
"BANKRUPTCY CODE": the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
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"BASE RATE": for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes
hereof: "PRIME RATE" shall mean, at any time, the rate of interest per
annum publicly announced from time to time by First Union at its
principal office in Charlotte, North Carolina as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of
business on the day such change in the Prime Rate occurs. The parties
hereto acknowledge that the rate announced publicly by First Union as
its Prime Rate is an index or base rate and shall not necessarily be
its lowest or best rate charged to its customers or other banks; and
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average 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
on the next succeeding Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it. If
for any reason the Administrative Agent shall have determined (which
determination shall be conclusive in the absence of manifest error)
that it is unable to ascertain the Federal Funds Effective Rate,
including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the
Base Rate shall be determined without regard to clause (b) of the first
sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Base
Rate due to a change in the Prime Rate or the Federal Funds Effective
Rate shall be effective on the opening of business on the date of such
change.
"BASE RATE LOANS": Revolving Loans that bear interest at an
interest rate based on the Base Rate.
"BORROWER" AND "BORROWERS": such terms as defined in the first
paragraph of this Agreement.
"BORROWING DATE": in respect of any Loan, the date such Loan
is made.
"BUSINESS": such term as defined in Section 3.10(b).
"BUSINESS DAY": a day other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina or
Cleveland, Ohio are authorized or required by law to close; PROVIDED,
HOWEVER, that when used in connection with a rate determination,
borrowing or payment in respect of a Eurocurrency Loan, the term
"Business Day" shall also exclude any day on which banks in London,
England are not open for dealings in Dollar deposits in the London
interbank market.
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"CAPITAL LEASE": any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on a
balance sheet of the lessee in accordance with GAAP.
"CAPITAL STOCK": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests (including
partnership and limited liability company interests) in a Person (other
than a corporation) and any and all warrants or options to purchase any
of the foregoing.
"CASH EQUIVALENTS": (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition ("GOVERNMENT OBLIGATIONS"), (ii) U.S. dollar denominated
(or foreign currency fully hedged) time deposits, certificates of
deposit, Eurodollar time deposits and Eurodollar certificates of
deposit denominated in Dollars or the Foreign Currency of (y) any
domestic commercial bank of recognized standing having capital and
surplus in excess of $250,000,000 or (z) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent
thereof or from Xxxxx'x is at least P-1 or the equivalent thereof (any
such bank being an "APPROVED BANK"), in each case with maturities of
not more than 364 days from the date of acquisition, (iii) commercial
paper and variable or fixed rate notes issued by any Approved Bank (or
by the parent company thereof) or any variable rate notes issued by, or
guaranteed by any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better
by Moody's and maturing within six months of the date of acquisition,
(iv) repurchase agreements with a bank or trust company (including a
Lender) or a recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States of America, (v) obligations of any
state of the United States or any political subdivision thereof for the
payment of the principal and redemption price of and interest on which
there shall have been irrevocably deposited Government Obligations
maturing as to principal and interest at times and in amounts
sufficient to provide such payment, (vi) auction preferred stock rated
in the highest short-term credit rating category by S&P or Moody's and
(vii) U.S. dollar denominated time and demand deposit accounts or money
market accounts with those domestic banks meeting the requirements of
item (y) or (z) of clause (ii) above and any other domestic commercial
banks insured by the FDIC with an aggregate balance not to exceed
$100,000 in the aggregate at any time at any such bank.
"CHANGE OF CONTROL": any of the following events: (a) any
"person" or "group" (within the meaning of Section 13(d) or 14(d) of
the Exchange Act) has become, directly or indirectly, the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a 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), by
way of merger, consolidation or otherwise, of 30% or
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more of the voting power of the Voting Stock of the Borrowers on a
fully-diluted basis, after giving effect to the conversion and exercise
of all outstanding warrants, options and other securities of the
Borrowers (whether or not such securities are then currently
convertible or exercisable), other than pursuant to the Stock
Distribution, or (b) during any period of two consecutive calendar
years, individuals who at the beginning of such period constituted the
board of directors of the Borrowers cease for any reason to constitute
a majority of the directors of the Borrowers then in office unless such
new directors were elected by the directors of the Borrowers who
constituted the board of directors of the Borrowers at the beginning of
such period.
"CLOSING DATE": the date of this Agreement, being also the
date on which each of the conditions specified in Section 4.1 are
satisfied in full or waived in accordance with this Agreement.
"CODE": the Internal Revenue Code of 1986, as amended from
time to time.
"COMBINATION AGREEMENT": the agreement among Penton USA, its
acquisition subsidiary, DM Publishing, Pittway, Xxxxxxx X. Xxxxxxx, and
Xxxx X. Xxxxxx dated May 21, 1998.
"COMMITMENT FEE: such term as defined in Section 2.7.
"COMMITMENT LETTER": the letter agreement dated as of July 28,
1998, together with the related term sheet, among the Borrowers, First
Union and First Union Capital Markets.
"COMMITMENT PERIOD": the period from and including the Closing
Date to but not including the Termination Date.
"COMMITMENT TRANSFER SUPPLEMENT": a Commitment Transfer
Supplement, substantially in the form of SCHEDULE 9.6(C).
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with a Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes a
Borrower and which 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.
"CONSOLIDATED ADJUSTED EBITDA": Adjusted EBITDA of the
Borrowers and their Subsidiaries on a consolidated basis determined in
accordance with GAAP.
"CONSOLIDATED EBITDA": EBITDA of the Borrowers and their
Subsidiaries on a consolidated basis determined in accordance with
GAAP.
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"CONSOLIDATED INTEREST EXPENSE": Interest Expense of the
Borrowers and their Subsidiaries on a consolidated basis determined in
accordance with GAAP.
"CONSOLIDATED TOTAL FUNDED DEBT": Total Funded Debt of the
Borrowers and their Subsidiaries on a consolidated basis determined in
accordance with GAAP.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of
any security issued by such Person or of any material agreement,
instrument or undertaking to which such Person is a party or by which
it or any of its material property is bound.
"COPYRIGHTS": (i) all copyrights in all works, now existing or
hereafter created or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in the
United States Copyright Office or in any similar office or agency of
the United States, any State thereof or any other country or any
political subdivision thereof, or otherwise, including, without
limitation, any thereof referred to in SCHEDULE 3.13 to the Credit
Agreement, and (ii) all renewals thereof.
"CREDIT DOCUMENTS": this Agreement, each of the Notes and the
Joinder Agreements.
"CREDIT PARTIES": collectively, the Borrowers and the
Guarantors.
"CURRENT MATURITIES OF TOTAL FUNDED DEBT" means, at any time
and with respect to any item of Total Funded Debt, the portion of such
Total Funded Debt outstanding at such time which by the terms of such
Total Funded Debt or the terms of any instrument or agreement relating
thereto is due on demand or within one year from such time (whether by
sinking fund, other required prepayment or final payment at maturity),
and is not directly or indirectly renewable, extendible or refundable
at the option of the obligor under an agreement or firm commitment in
effect at such time to a date one year or more from such time.
"DEFAULT": any of the events specified in Section 7, whether
or not any requirement for the giving of notice or the lapse of time,
or both, or any other condition, has been satisfied.
"DEFAULTING LENDER": at any time, any Lender that, at such
time (a) has failed to make a Loan required pursuant to the terms of
this Agreement, (b) has failed to pay to the Administrative Agent or
any Lender an amount owed by such Lender pursuant to the terms of this
Agreement, or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or
similar official.
"DETERMINATION DATE" means:
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(a) in connection with the origination of any new
Loan, the Business Day which is the earliest of the date such
Loan is extended or the date the rate is set, as applicable;
(b) in connection with any extension or conversion or
continuation of an existing Loan, the Business Day which is
the earlier of the date such credit is extended, converted or
continued, or the date the rate is set, as applicable, in
connection with any extension, conversion or continuation; or
(c) the date of any reduction of the Revolving
Committed Amount pursuant to the terms of Section 2.5; and
in addition to the foregoing, such additional dates not more frequently
than once a month as may be determined by the Agent.
"DM PUBLISHING": Xxxxxxx Xxxxxx Publishing Company, an
Illinois corporation.
"DOLLAR AMOUNT": (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount
of Foreign Currency or an amount denominated in such Foreign Currency,
the Dollar Equivalent of such amount on the applicable date
contemplated in this Credit Agreement.
"DOLLAR EQUIVALENT": on any date, with respect to an amount
denominated in a Foreign Currency, the amount of Dollars into which the
Agent could, in accordance with its practice from time to time in the
interbank foreign exchange market, convert such amount of such Foreign
Currency at its spot rate of exchange (inclusive of all reasonable
related costs of conversion, if any are actually incurred) applicable
to the relevant transaction at or about 10:00 A.M., Charlotte, North
Carolina time, on such date.
"DOLLARS" and "$": dollars in lawful currency of the United
States of America.
"DOMESTIC LENDING OFFICE": initially, the office of each
Lender designated as such Lender's Domestic Lending Office shown on
SCHEDULE 2.1(A); and thereafter, such other office of such Lender as
such Lender may from time to time specify to the Administrative Agent
and Penton USA as the office of such Lender at which Base Rate Loans of
such Lender are to be made.
"EBITDA": of any Person for any period, net income for such
period, PLUS (i) Interest Expense to the extent deducted in determining
such net income, PLUS (ii) depreciation, amortization and all other
non-cash charges deducted in determining such net income, all
determined in accordance with GAAP consistently applied, MINUS (iii)
extraordinary income (including, for purposes hereof, gain from the
sale of assets in the ordinary course of business, such as obsolete
equipment), PLUS (iv) extraordinary
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expenses (including, for purposes hereof, loss from the sale of the
assets in the ordinary course of business, such as obsolete equipment),
PLUS (v) taxes to the extent deducted to determine net income.
"ENVIRONMENTAL LAWS": any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees or requirements of any Governmental
Authority or other Requirement of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may
at any time be in effect during the term of this Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"EUROCURRENCY LENDING OFFICE": initially, the office of each
Lender designated as such Lender's Eurocurrency Lending Office shown on
SCHEDULE 2.1(A); and thereafter, such other office of such Lender as
such Lender may from time to time specify to the Administrative Agent
and the Borrowers as the office of such Lender at which the
Eurocurrency Loans of such Lender are to be made.
"EUROCURRENCY LOAN": any Loan bearing interest at a rate
determined by reference to the Eurocurrency Rate.
"EUROCURRENCY RATE": for any Eurocurrency Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16th of 1%) appearing on Telerate Page 3750
(or any successor page) as London interbank offered rate for deposits
in Dollars or the applicable Foreign Currency, as appropriate, at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not available, the term
"Eurocurrency Rate" shall mean, for any Eurocurrency Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16th of 1%) appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars
or the applicable Foreign Currency, as appropriate, at approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period;
PROVIDED, HOWEVER, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates.
"EUROCURRENCY RESERVE PERCENTAGE": for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System ( or other applicable authority or any successor
thereof), as such regulation may be amended from time to time or any
successor regulation, as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to
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Eurocurrency liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurocurrency Loans is
determined), whether or not Lender has any Eurocurrency liabilities
subject to such reserve requirement at that time. Eurocurrency Loans
shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to a Lender. The Eurocurrency Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurocurrency Reserve Percentage.
"EVENT OF DEFAULT": any of the events specified in Section 7;
PROVIDED, HOWEVER, that any requirement for the giving of notice or the
lapse of time, or both, or any other condition, has been satisfied.
"FACILITY FEE": such term as defined in Section 2.7.
"FEDERAL FUNDS EFFECTIVE RATE": such term as defined in the
definition of "Base Rate".
"FEES": the Commitment Fees, the Facility Fee, the Agent Fee
and such other fees as may from time to time become due and owing
hereunder.
"FIRST UNION": First Union National Bank, a national banking
association.
"FOREIGN CURRENCY": British Pounds Sterling and such other
currency as agreed to between the Borrowers and all the Lenders.
"FOREIGN CURRENCY EQUIVALENT": on any date, with respect to an
amount denominated in Dollars, the amount of the applicable Foreign
Currency into which the Agent could, in accordance with its practice
from time to time in the interbank foreign exchange market, convert
such amount of Dollars at its spot rate of exchange (inclusive of all
reasonable related costs of conversion, if any are actually incurred)
applicable to the relevant transaction at or about 10:00 A.M.,
Charlotte, North Carolina time, on such date.
"FOREIGN CURRENCY LOANS": shall have the meaning assigned to
such term in Section 2.2(a).
"GAAP": generally accepted accounting principles in effect in
the United States of America applied on a consistent basis, SUBJECT,
HOWEVER, in the case of determination of compliance with the financial
covenants set out in Section 5.9 to the provisions of Section 1.3.
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"GOVERNMENTAL AUTHORITY": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING
PERSON"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "PRIMARY OBLIGATIONS") of
any other third Person (the "PRIMARY OBLIGOR") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; PROVIDED, HOWEVER, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by the Borrowers in good faith.
"GUARANTORS": Penton USA and any and all Subsidiaries of the
Borrowers identified as a "Subsidiary Guarantor" on the signature pages
hereto and any Subsidiary organized under the laws of any state of the
United States of America acquired or formed subsequent to the Closing
Date.
"INDEBTEDNESS": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property or services (other than
trade liabilities and other normal accrued liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person under Capital Leases, (d) all obligations of
such Person in respect of bankers' acceptances issued or created for
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the account of such Person, (e) all liabilities secured by any Lien on
any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof (other than
liabilities securing carriers', warehousemen's, mechanics', repairmen's
or other like nonconsensual statutory Liens arising in the ordinary
course of business), (f) all obligations of such Person under
conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the
ordinary course of business), (g) all obligations of such Person under
take-or-pay or similar arrangements or under commodities agreements
(other than supply agreements and other similar arrangements entered
into in the ordinary course of business), (h) all Guarantee Obligations
of such Person, (i) all obligations of such Person in respect of
interest rate protection agreements, foreign currency exchange
agreements, commodity purchase or option agreements or other interest
or exchange rate or commodity price hedging agreements, and (j) the
maximum amount of all letters of credit issued for the account of such
Person and, without duplication, all drafts drawn thereunder (to the
extent not theretofore reimbursed). For purposes of this Agreement,
Indebtedness shall not include any Indebtedness owing by a Borrower to
any of its Subsidiaries or by any Subsidiary of a Borrower to such
Borrower or by any Subsidiary of a Borrower to any other Subsidiary of
such Borrower or any contingent obligation in respect thereof. It is
understood and agreed that the amount of any Indebtedness described in
clause (e) shall be the lower of the amount of the obligation or the
fair market value of the collateral securing such obligation, and the
amount of any obligation described in clause (i) shall be the
termination payments that would be required to be paid to a
counterparty upon early termination (in accordance with customary
industry standards) rather than any notional amount with regard to
which payments may be calculated.
"INSOLVENCY": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term
as used in Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY": such term as defined in Section 3.13.
"INTEREST COVERAGE RATIO": as of the last day of any fiscal
quarter, the ratio of Consolidated Adjusted EBITDA for the four (4)
consecutive quarters then ending to Consolidated Interest Expense for
the four (4) consecutive quarters then ending.
"INTEREST EXPENSE": for any Person for any period, the sum of
all interest and fee expense including amortization of debt discount
and premium and the interest component under Capital Leases for such
Person; PROVIDED that there shall be added to and included in Interest
Expense for purposes hereof the net amount payable (other than amounts
payable in respect of up-front or one-time fees, which shall be
excluded from Interest Expense) by such Person in respect of any
Interest Protection Agreement and Interest
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Expense shall be reduced by the net amount receivable by such Person
under any Interest Protection Agreement in respect of such period.
"INTEREST PAYMENT DATE": (a) as to any Base Rate Loan, the
last Business Day of each March, June, September and December to occur
while such Loan is outstanding, (b) as to any Eurocurrency Loan having
an Interest Period of three months or less, the last day of such
Interest Period and (c) as to any Eurocurrency Loan having an Interest
Period longer than three months, each day which is three months after
the first day of such Interest Period and the last day of such Interest
Period.
"INTEREST PERIOD": with respect to any Eurocurrency Loan,
(i) initially, the period commencing on the Borrowing
Date or conversion date, as the case may be, with respect to
such Eurocurrency Loan and ending one, two, three or six
months thereafter, as selected by any Borrower in the notice
of borrowing or notice of conversion given with respect
thereto; and
(ii) thereafter, each period commencing on the last day
of the immediately preceding Interest Period applicable to
such Eurocurrency Loan and ending one, two, three or six
months thereafter, as selected by any Borrower by irrevocable
notice to the Administrative Agent in the notice of conversion
given with respect thereto;
PROVIDED that the foregoing provisions are subject to the following:
(A) if any Interest Period pertaining to a
Eurocurrency Loan would otherwise end on a day that
is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless
the result of such extension would be to carry such
Interest Period into another calendar month in which
event such Interest Period shall end on the
immediately preceding Business Day;
(B) any Interest Period pertaining to a
Eurocurrency Loan that begins on the last Business
Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end
on the last Business Day of the relevant calendar
month;
(C) if the Borrowers shall fail to give
notice as provided above, the Borrowers shall be
deemed to have selected a Eurocurrency Loan with an
Interest Period of one month to replace the affected
Eurocurrency Loan as provided in Section 2.4; and
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(D) any Interest Period in respect of any
Revolving Loan that would otherwise extend beyond the
Termination Date shall end on the Termination Date.
"INTEREST PROTECTION AGREEMENT": any interest rate protection
agreement or interest rate future, option, cap, collar or other hedging
arrangement.
"JOINDER AGREEMENT": a Joinder Agreement substantially in the
form of SCHEDULE 5.12, executed and delivered by a Subsidiary in
accordance with the provisions of Section 5.12.
"LENDERS": such term as defined in the first paragraph of this
Agreement.
"LEVERAGE RATIO": as of the last day of any fiscal quarter,
the ratio (x) of Consolidated Total Funded Debt as of the last day of
such fiscal quarter to (y) Consolidated Adjusted EBITDA for the four
(4) consecutive fiscal quarters then ending.
"LIEN": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Capital Lease having substantially the same
economic effect as any of the foregoing).
"LOAN" OR "LOANS": any Revolving Loans, Foreign Currency Loans
or Base Rate Loans.
"MAJORITY LENDERS": Lenders holding in the aggregate more than
66 2/3% of the sum of (i) all Loans then outstanding at such time and
(ii) the aggregate unused Revolving Commitments at such time; PROVIDED,
HOWEVER, that if any Lender shall be a Defaulting Lender at such time,
then there shall be excluded from the determination of Majority Lenders
those Loans owing to such Defaulting Lender and such Defaulting
Lender's Revolving Commitments, or after termination of the Revolving
Commitments, the principal balance of the Loans owing to such
Defaulting Lender.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a)
the business, operations, property, or condition (financial or
otherwise) of the Borrowers and their Subsidiaries taken as a whole,
(b) the ability of the Borrowers and their Subsidiaries to perform
their Obligations under this Agreement or any of the Notes or (c) the
validity or enforceability of this Agreement, any of the Notes or any
of the other Credit Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
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"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"MLA COST": an addition to the interest rate on a Loan to
compensate any Lender for the cost imputed to a Lender in respect of
any Loan made in British Pounds Sterling during the term of any Loan
made in British Pounds Sterling resulting from the imposition from time
to time under or pursuant to the Bank of England Act [of] 1998 (the
"Act") and/or by the Bank of England and/or the Financial Services
Authority (the "FSA") (or other United Kingdom governmental authorities
or agencies) of a requirement to place non-interest-bearing cash ratio
deposits or Special Deposits (whether interest bearing or not) with the
Bank of England and/or pay fees to the FSA calculated by reference to
liabilities used to fund the Loan made in British Pounds Sterling, as
determined in accordance with SCHEDULE 2.2(D).
"MOODY'S": Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NON-EXCLUDED TAXES": such term as defined in Section 2.13.
"NOTE" or "NOTES": a Revolving Note or the Revolving Notes, as
appropriate.
"NOTICE OF ACCOUNT DESIGNATION": such term as defined in
Section 2.1(b)(iii).
"NOTICE OF BORROWING": a written notice of borrowing in
substantially the form of SCHEDULE 2.1(B)(I), as required by Section
2.1(b)(i) in the case of Revolving Loans and SCHEDULE 2.2(B)(I) as
required by Section 2.2(b)(i) in the case of Foreign Currency Loans.
"NOTICE OF CONVERSION": the written notice of extension or
conversion in substantially the form of SCHEDULE 2.4, as required by
Section 2.4.
"OBLIGATIONS": without duplication, (i) all of the obligations
of the Credit Parties to the Lenders and the Agent, whenever arising,
under this Agreement, the Notes or any of the other Credit Documents
(including, but not limited to, any interest accruing after the
occurrence of a filing of a petition of bankruptcy under the Bankruptcy
Code with respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code) and (ii) all
liabilities and obligations, whenever arising, owing from the Borrowers
or any of their Subsidiaries to any Lender, or any affiliate of a
Lender, arising under any Interest Rate Protection Agreement.
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"PARTICIPANT": such term as defined in Section 9.6(b).
"PATENTS": (i) all letters patent of the United States or any
other country, now existing or hereafter arising, and all improvement
patents, reissues, reexaminations, patents of additions, renewals and
extensions thereof, including, without limitation, any thereof referred
to in SCHEDULE 3.13 to the Credit Agreement, and (ii) all applications
for letters patent of the United States or any other country, now
existing or hereafter arising, and all provisionals, divisions,
continuations and continuations-in-part and substitutes thereof,
including, without limitation, any thereof referred to in SCHEDULE 3.13
to the Credit Agreement.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PERMITTED ACQUISITION": such term as defined in Section
6.5(b)(iii).
"PERMITTED INVESTMENTS": (i) cash and Cash Equivalents, (ii)
receivables owing to the Borrowers or any of their Subsidiaries or any
receivables and advances to suppliers, in each case if created,
acquired or made in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms, (iii) loans
and/or investments in and to the Borrowers or any of their
Subsidiaries, (iv) investments (including debt obligations, stock,
securities or other property) received in connection with the
bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business, (v)
investments, acquisitions or transactions permitted under Section
6.5(b), (vi) loans and advances to employees for business-related
travel expenses, costs of replacement homes and similar expenses, in
each case incurred in the ordinary course of business, (vii)
investments in Interest Protection Agreements other than for
speculative purposes and (viii) any endorsement of a check or other
medium of payment for deposit or collection, or any similar transaction
in the ordinary course of business. As used herein, "INVESTMENT" means
all investments, in cash or by delivery of property made, directly or
indirectly in, to or from any Person, whether by acquisition of shares
of capital stock or partnership interest or other equity interest,
property, assets, indebtedness or other obligations or securities or by
loan advance, capital contribution or otherwise.
"PERMITTED LIENS":
(i) Liens created by or otherwise existing under or
in connection with this Agreement or the other Credit
Documents in favor of the Administrative Agent for the benefit
of the Lenders;
(ii) Liens on assets securing purchase money
indebtedness and Capital Leases (and refinancings thereof) to
the extent permitted under subsection (d) of
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Section 6.1 and Liens existing on the date hereof and
described on SCHEDULE 1.1 (together with any replacement,
extension or renewal of any such Liens);
(iii) Liens for taxes, assessments, charges or other
governmental levies not yet due or as to which the period of
grace (not to exceed 60 days), if any, related thereto has not
expired or which are being contested in good faith by
appropriate proceedings, PROVIDED that adequate reserves with
respect thereto are maintained on the books of the Borrowers
or any of their Subsidiaries, as the case may be, in
conformity with GAAP (or, in the case of Subsidiaries with
significant operations outside of the United States of
America, generally accepted accounting principles in effect
from time to time in their respective jurisdictions of
incorporation);
(iv) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which are not overdue for a period
of more than 60 days or which are being contested in good
faith by appropriate proceedings;
(v) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;
(vi) deposits to secure the performance of bids,
trade contracts, (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the
ordinary course of business;
(vii) Liens in connection with attachments or
judgments (including judgment or appeal bonds), provided that
the judgments secured shall, within 60 days after the entry
thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 60 days
after the expiration of any such stay;
(viii) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or
irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use
of the encumbered property for its intended purpose;
(ix) leases or subleases of real property granted to
others not interfering in any material respect with the
business of the Borrowers or any of their Subsidiaries;
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(x) any extension, renewal or replacement (or
successive extensions, renewals or replacements) , in whole or
in part, of any Lien referred to in the foregoing clauses;
PROVIDED that such extension, renewal or replacement Lien
shall be limited to all or a part of the property which
secured the Lien so extended, renewed or replaced (plus
improvements on such property); and
(xi) Liens existing on assets or property at the time
acquired in connection with a Permitted Acquisition and not
incurred as a result of, or in connection with or in
anticipation of such Permitted Acquisition; provided that (A)
the principal amount of the Indebtedness secured by any such
Lien immediately prior to such Permitted Acquisition is not
increased or the maturity thereof reduced, (B) any such Lien
is not extended to any other property and (C) immediately
after such Permitted Acquisition, no Default or Event of
Default would exist.
"PERSON": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"PITTWAY": Pittway Corporation, a Delaware corporation.
"PLAN": at any particular time, any employee benefit plan
which is covered by Title IV of ERISA and in respect of which a
Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" as defined in Section 3(5) of ERISA.
"PRIME RATE": such term as defined in the definition of Base
Rate.
"PROPERTIES": such term as defined in Section 3.10(a).
"PURCHASING LENDERS": such term as defined in Section 9.6(c).
"RECOVERY EVENT": the receipt by the Borrowers or any of their
Subsidiaries of any cash insurance proceeds or condemnation award
payable by reason of theft, loss, physical destruction or damage,
taking or similar event with respect to any property or assets of the
Borrowers or any of their Subsidiaries.
"REGISTER": such term as defined in Section 9.6(d).
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
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"REPORTABLE EVENT": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty-day
notice period has been waived pursuant to regulations promulgated by
the PBGC.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-laws, partnership agreement, operating agreement
or other organizational or governing documents of such Person, and each
law, treaty, rule or regulation or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person
or any of its material property is subject.
"RESTRICTED PAYMENT": (i) any payment by the Borrowers or any
of their Subsidiaries of a payment, distribution or dividend (other
than a dividend or distribution payable solely in stock or equity
interest of a Borrower) on, or any payment on account of the purchase,
redemption, defeasance or retirement of, or any other distribution on,
any partnership interest, limited liability company interest, share of
any class of stock or other ownership interest in the Borrowers or any
of their Subsidiaries (including any such payment or distribution in
cash or in property or obligations of a Borrower or any of its
Subsidiaries), (ii) any loan or advance by a Borrower or any of its
Subsidiaries to any Affiliate of a Borrower or any of its Subsidiaries
other than as permitted by Sections 6.6 or 6.7, or (iii) the payment by
a Borrower or any of its Subsidiaries of any management or
administrative fee to any Affiliate of the Borrower or any of its
Subsidiaries or of any salary, bonus or other form of compensation
other than in the ordinary course of business to any Person who is a
significant partner, shareholder, member, owner or executive officer of
any such Affiliate other than as permitted by Section 6.7.
"REVOLVING COMMITMENT": as to any Lender, the obligation of
such Lender to make Revolving Loans and Foreign Currency Loans to the
Borrowers hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on SCHEDULE 2.1(A), as such amount may be reduced from time to
time in accordance with the provisions of this Agreement.
"REVOLVING COMMITMENT PERCENTAGE": for each Lender, a fraction
(expressed as a percentage) the numerator of which is the Revolving
Commitment of such Lender at such time and the denominator of which is
the Aggregate Revolving Committed Amount at such time. The initial
Revolving Commitment Percentages are set out on SCHEDULE 2.1(A).
"REVOLVING COMMITTED AMOUNT": collectively, the aggregate
amount of all of the Revolving Commitments as referenced in Section
2.1(a) and, individually, the amount of each Lender's Revolving
Commitment as specified in SCHEDULE 2.1(A).
"REVOLVING LOANS": such term as defined in Section 2.1.
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"REVOLVING NOTE" or "REVOLVING NOTES": the promissory notes of
the Borrowers in favor of each of the Lenders evidencing the Revolving
Loans and the Foreign Currency Loans provided pursuant to Section
2.1(e), individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented, extended,
renewed or replaced from time to time.
"S&P": Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc.
"SINGLE EMPLOYER PLAN": any Plan which is not a Multiemployer
Plan.
"SPECIFIED SALES": (i) the sale, transfer, lease or other
disposition of inventory and materials in the ordinary course of
business (including obsolete and/or unnecessary), (ii) the sale,
transfer, lease or other disposition of machinery, parts and equipment
(including obsolete and/or unnecessary equipment) in the ordinary
course of business, (iii) the sale, transfer or other disposition of
articles in the ordinary course of business or the granting of
permission for reprints in the ordinary course of business and (iv) the
sale, lease or disposition of space and related property and assets in
the ordinary course of business.
"STOCK DISTRIBUTION": the distribution to stockholders of
Pittway of the common stock, par value $.01 per share, of Penton USA,
pursuant to the Form S-1 Registration Statement filed with the
Securities and Exchange Commission on June 15, 1998, as amended.
"SUBSIDIARY": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of a Borrower.
"TERMINATION DATE": the earlier of (a) June 30, 2003 or (b)
the date on which the Revolving Commitments shall terminate in
accordance with the provisions of this Agreement.
"TOTAL FUNDED DEBT": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money
which by its terms or by the terms of any instrument or agreement
relating thereto matures or is otherwise payable or unpaid, one year or
more from, or is directly or indirectly renewable or extendible at the
option of the obligor in respect thereof to a date one year or more
from the creation thereof; provided that, Total Funded Debt shall
include, at any date of determination, Current Maturities of Total
Funded Debt; (b) all obligations of such Person under Capital Leases;
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(c) all Guarantee Obligations of such Person; and (d) the maximum
amount of all letters of credit issued or bankers' acceptances created
for the account of such Person and, without duplication, all drafts
drawn thereunder (to the extent not theretofore reimbursed).
"TRADEMARKS": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names,
service marks, logos and other source or business identifiers, together
with the goodwill of the business symbolized by said marks, names,
logos and identifiers now existing or hereafter adopted or acquired,
all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision
thereof, or otherwise, including, without limitation, any thereof
referred to in SCHEDULE 3.13 to the Credit Agreement, and (ii) all
renewals thereof including, without limitation, any thereof referred to
in SCHEDULE 3.13 to the Credit Agreement.
"TRANSFER EFFECTIVE DATE": such term as defined in each
Commitment Transfer Supplement.
"TYPE": as to any Loan, its nature as a Base Rate Loan,
Eurocurrency Loan or Foreign Currency Loan, as the case may be.
"VOTING STOCK": with respect to any Person, all classes of the
capital stock (or other voting interests) of such Person then
outstanding and normally entitled to vote in the election of directors.
1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in
this Agreement shall have the defined meanings when used in the Notes
or other Credit Documents or any certificate or other document made or
delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references are
to this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
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1.3 ACCOUNTING TERMS.
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent (except for changes concurred
with by the Borrowers' independent public accountants) with the most recent
audited financial statements of the Borrowers delivered to the Lenders; PROVIDED
that, if the Borrowers notify the Administrative Agent that they wish to amend
any covenant in Section 5.9 to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the
Borrowers that the Majority Lenders wish to amend Section 5.9 for such purpose),
then the Borrowers' compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrowers and the Majority Lenders.
The Borrowers shall deliver to the Administrative Agent and each Lender
at the same time as the delivery of any annual or quarterly financial statements
given in accordance with the provisions of Section 5.1, (i) a description in
reasonable detail of any material change in the application of accounting
principles employed in the preparation of such financial statements from those
applied in the most recently preceding quarterly or annual financial statements
as to which no objection shall have been made in accordance with the provisions
above and (ii) a reasonable estimate of the effect on the financial statements
on account of such changes in application.
SECTION 2. THE LOANS; AMOUNT AND TERMS
2.1 REVOLVING LOANS.
(a) REVOLVING COMMITMENT. During the Commitment Period,
subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans in Dollars ("REVOLVING LOANS") to
Penton USA from time to time in an aggregate amount up to the amount of
such Lender's Revolving Commitment Percentage of such Revolving Loans
for the purposes hereinafter set forth; PROVIDED that (i) with regard
to each Lender individually, the Dollar Amount (determined as of the
most recent Determination Date) of such Lender's Revolving Commitment
Percentage of the sum of Revolving Loans PLUS Foreign Currency Loans
shall not exceed such Lender's Revolving Committed Amount, and (ii)
with regard to the Lenders collectively, the Dollar Amount (determined
as of the most recent Determination Date) of the sum of Revolving Loans
PLUS Foreign Currency Loans shall not exceed the Aggregate Revolving
Committed Amount. Revolving Loans may consist of Base Rate Loans or
Eurocurrency Loans, or a combination thereof, as Penton USA may
request, and may be repaid and reborrowed in accordance with the
provisions hereof.
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(b) REVOLVING LOAN BORROWINGS.
(i) NOTICE OF BORROWING. Penton USA shall request a
Revolving Loan borrowing by written notice (or telephone
notice promptly confirmed in writing) to the Agent not later
than 11:00 A.M. (Charlotte, North Carolina time) on the
Business Day prior to the date of the requested borrowing in
the case of Base Rate Loans, and on the third Business Day
prior to the date of the requested borrowing in the case of
Eurocurrency Loans denominated in Dollars. Each such request
for borrowing shall be irrevocable and shall specify (A) that
a Revolving Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, and (D) whether the borrowing
shall be comprised of Base Rate Loans, Eurocurrency Loans or a
combination thereof, and if Eurocurrency Loans are requested,
the Interest Period(s) therefor. If Penton USA shall fail to
specify in any such Notice of Borrowing (i) an applicable
Interest Period in the case of a Eurocurrency Loan, then such
notice shall be deemed to be a request for an Interest Period
of one month, or (ii) the Type of Revolving Loan requested,
then such notice shall be deemed to be a request for a
Eurocurrency Loan for an Interest Period of one month
hereunder. The Agent shall give notice to each affected Lender
promptly upon receipt of each Notice of Borrowing pursuant to
this Section 2.1(b)(i), the contents thereof and each such
Lender's share of any borrowing to be made pursuant thereto.
(ii) MINIMUM AMOUNTS. Each Revolving Loan made as (A)
a Eurocurrency Loan shall be in a minimum aggregate principal
amount of $1,000,000 and integral multiples of $1,000,000 in
excess thereof and (B) a Base Rate Loan shall be in a minimum
aggregate principal amount of $1,000,000 and integral
multiples of $500,000 in excess thereof (or if less, the
remaining Revolving Committed Amount).
(iii) ADVANCES. Each Lender will make its Revolving
Commitment Percentage of each Revolving Loan borrowing
available to the Agent for the account of Penton USA as
specified in Section 2.17(b), or in such other account in the
United States as the Agent may specify in writing, by 1:00
P.M. (Charlotte, North Carolina time) on the date specified in
the applicable Notice of Borrowing in Dollars and in funds
immediately available to the Agent. Such borrowing will then
be made available to Penton USA by the Agent by crediting the
account of Penton USA on the books of such office with the
aggregate of the amounts made available to the Agent by the
Lenders and in like funds as received by the Agent together
with any amounts advanced by the Agent under Section 2.15(b).
Penton USA hereby irrevocably authorizes the Administrative
Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.1 in immediately available funds by
crediting such proceeds to a deposit account of Penton USA
maintained with the Administrative Agent or by wire transfer
to any other account
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of Penton USA in each such case as may be specified by Penton
USA from time to time in a written notice in the form attached
hereto as SCHEDULE 2.1(B)(III) (a "NOTICE OF ACCOUNT
DESIGNATION"). Unless otherwise specified by Penton USA, the
Notice of Account Designation most recently provided to the
Administrative Agent shall control.
(c) REPAYMENT. The principal amount of all Revolving Loans
shall be due and payable in full on the Termination Date.
(d) INTEREST. Subject to the provisions of Section 2.3.
(i) BASE RATE LOANS. During such periods as Revolving
Loans shall be comprised in whole or in part of Base Rate
Loans, such Base Rate Loans shall bear interest at a per annum
rate equal to the Base Rate;
(ii) EUROCURRENCY LOANS. During such periods as
Revolving Loans shall be comprised in whole or in part of
Eurocurrency Loans, such Eurocurrency Loans shall bear
interest at a per annum rate equal to the sum of the
Eurocurrency Rate PLUS the Applicable Interest Rate
Percentage.
Interest on Revolving Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be
specified herein).
(e) REVOLVING NOTES. The Revolving Loans shall be evidenced by
a duly executed Revolving Note in favor of each Lender in substantially
the form of SCHEDULE 2.1(E). Each Lender is hereby authorized to record
the date, Type and amount of each Revolving Loan made by such Lender,
each continuation thereof, each conversion of all or a portion thereof
to another Type, the date and amount of each payment or prepayment of
principal thereof and, in the case of Eurocurrency Loans, the length of
each Interest Period with respect thereto, on the schedule annexed to
and constituting a part of its Revolving Note, and any such recordation
shall constitute prima facie evidence of the accuracy of the
information so recorded absent manifest error; PROVIDED that neither
the failure to make, nor any error in the making of, any such
recordation shall limit or otherwise affect the obligation of the
Borrowers hereunder or under such Revolving Note with respect to any
Revolving Loan and payments of principal or interest on such Revolving
Note. Each Revolving Note shall be dated the Closing Date and provide
for the payment of interest in accordance with subsection 2.1(d).
(f) MAXIMUM NUMBER OF LOANS. The Borrowers will be limited to
the maximum aggregate number of separate Loans outstanding at any time
under Section 2.1 (Revolving Loans) and Section 2.2 (Foreign Currency
Loans) of:
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No. of Loans
------------
Penton USA 6
Penton UK 6
For purposes hereof, (i) Loans to different Borrowers will be
considered to be separate Loans, (ii) as to Revolving Loans which are
Base Rate Loans, all such Revolving Loans to a given Borrower will be
considered to be a single Loan, (iii) as to other types of Loans, each
type of Loan will be considered to be a separate Loan and (iv) Loans
with different Interest Periods shall be considered as separate Loans,
even if they shall begin on the same date and have the same duration,
although borrowings, extensions and conversions may, in accordance with
the provisions hereof, be combined at the end of existing Interest
Periods to constitute a new Loan with a single Interest Period.
2.2 FOREIGN CURRENCY LOAN SUBFACILITY.
(a) FOREIGN CURRENCY COMMITMENT. During the Commitment Period,
subject to the terms and conditions hereof, each Lender severally
agrees to make certain foreign currency revolving loans in the
applicable Foreign Currency (the "FOREIGN CURRENCY LOANS") to Penton UK
from time to time in the amount of such Lender's Revolving Commitment
Percentage of such Foreign Currency Loans from time to time for the
purposes hereinafter set forth; PROVIDED, that (i) with regard to each
Lender individually, the Dollar Amount (determined as of the most
recent Determination Date) of such Lender's Revolving Commitment
Percentage of the sum of Revolving Loans PLUS Foreign Currency Loans
shall not exceed such Lender's Revolving Committed Amount, and (ii)
with regard to the Lenders collectively, the Dollar Amount (determined
as of the most recent Determination Date) of the sum of Revolving Loans
PLUS Foreign Currency Loans shall not exceed the Aggregate Revolving
Committed Amount. Foreign Currency Loans shall consist solely of
Eurocurrency Loans and may be repaid and reborrowed in accordance with
the provisions hereof.
(b) FOREIGN CURRENCY LOAN BORROWINGS.
(i) NOTICE OF BORROWING. Penton UK shall request a
Foreign Currency Loan borrowing by written notice (or
telephone notice promptly confirmed in writing) to the Agent
not later than 11:00 A.M. (Charlotte, North Carolina time) on
the fourth Business Day prior to the date of the requested
borrowing. Each such request for borrowing shall be
irrevocable and shall specify (A) that a Foreign Currency Loan
is requested, (B) the requested Foreign Currency, (C) the date
of the requested borrowing (which shall be a Business Day),
(D) the aggregate principal amount to be borrowed and (E) the
Interest Period(s) therefor. If Penton UK shall fail to
specify in any such Notice of Borrowing an applicable Interest
Period, then such notice shall be deemed to be a request for
an Interest Period of one month. The Agent shall give notice
to each Lender promptly upon
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receipt of each Notice of Borrowing, the contents thereof and
each such Lender's share of any borrowing to be made pursuant
thereto.
(ii) MINIMUM AMOUNTS. Each Foreign Currency Loan
shall be in a minimum aggregate principal amount equal to the
applicable Foreign Currency Equivalent of approximately
$1,000,000 and integral multiples of the applicable Foreign
Currency Equivalent of approximately $1,000,000 in excess
thereof.
(iii) ADVANCES. Each Lender will make its Revolving
Commitment Percentage of each Foreign Currency Loan borrowing
available to the Agent by 1:00 P.M., local time in the place
where such deposit is required to be made by the succeeding
terms hereof, on the date specified in the applicable Notice
of Borrowing by deposit with the Agent, at the same place and
same account specified in Section 2.17(b) for payments by
Penton UK in the applicable Foreign Currency, of same day
funds in the applicable Foreign Currency. Such deposit will be
made to such accounts in the primary market for such Foreign
Currency as the Agent shall specify from time to time by
notice to the Lenders. To the extent funds are received from
the Lenders, the Agent shall promptly make such funds
available by wire transfer to such accounts as Penton UK shall
have specified to the Agent together with any amounts advanced
by the Agent under Section 2.15(b).
(c) REPAYMENT. The principal amount of all Foreign Currency
Loans shall be due and payable in full in the applicable Foreign
Currency on the Termination Date.
(d) INTEREST. Subject to the provisions of Section 2.3,
Foreign Currency Loans shall bear interest at a per annum rate equal to
the Eurocurrency Rate PLUS the Applicable Interest Rate Percentage.
Interest on Foreign Currency Loans shall be payable (in the applicable
Foreign Currency) in arrears on each applicable Interest Payment Date
(or at such other times as may be specified herein). Any Foreign
Currency Loan made in British Pounds Sterling shall have added to the
interest otherwise applicable to such Loan the MLA Cost associated with
such Loan.
(e) FOREIGN CURRENCY NOTES. The Foreign Currency Loans shall
be evidenced by a Revolving Note duly executed by Penton UK in favor of
each Lender.
(f) MAXIMUM NUMBER OF LOANS. Penton UK will be limited to a
maximum number of Loans under this Section 2.2 as provided in Section
2.1(f).
2.3 DEFAULT RATE.
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit Documents
shall bear interest, payable on demand, at a per
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annum rate, in the case of overdue principal, equal to the rate that would
otherwise be applicable thereto plus 2% and in the case of all other over due
amounts, equal to the Base Rate plus 2%.
2.4 EXTENSION AND CONVERSION.
Subject to the terms of Section 4.2, a Borrower shall have the option,
on any Business Day, to extend existing Loans into a subsequent permissible
Interest Period or to convert Loans into Loans of another interest rate type;
PROVIDED, HOWEVER, that (i) except as provided in Section 2.11, Eurocurrency
Loans may be converted into Base Rate Loans only on the last day of the Interest
Period applicable thereto, (ii) Eurocurrency Loans may be extended, and Base
Rate Loans may be converted into Eurocurrency Loans, only if no Default or Event
of Default is in existence on the date of extension or conversion and the
conditions set forth in subsections (a), (b), (c) and (d) of Section 4.2 have
been satisfied, (iii) Loans extended as, or converted into, Eurocurrency Loans
shall be subject to the terms of the definition of "INTEREST PERIOD" set forth
in Section 1.1 and shall be in such minimum amounts as provided in, with respect
to Revolving Loans, Section 2.1(b)(ii) or, with respect to Foreign Currency
Loans, Section 2.2(b)(ii), and (iv) any request for extension or conversion of a
Eurocurrency Loan which shall fail to specify an Interest Period shall be deemed
to be a request for an Interest Period of one month. Each such extension or
conversion shall be effected by a Borrower, by giving a Notice of
Extension/Conversion (or telephone notice promptly confirmed in writing) to the
Agent prior to 11:00 A.M. (Charlotte, North Carolina time) on the Business Day
prior to, in the case of the conversion of a Eurocurrency Loan into a Base Rate
Loan, and on the third Business Day prior to (or fourth Business Day prior to,
in the case of a Foreign Currency Loan), in the case of the extension of a
Eurocurrency Loan as, or conversion of a Base Rate Loan into, a Eurocurrency
Loan, the date of the proposed extension or conversion, specifying the date of
the proposed extension or conversion, the Loans to be so extended or converted,
the types of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect thereto. Each request
for extension or conversion shall be irrevocable and shall constitute a
representation and warranty by the applicable Borrower of the matters specified
in subsections (a), (b), (c) and (d) of Section 4.2. In the event a Borrower
fails to request extension or conversion of any Eurocurrency Loan in accordance
with this Section, or any such conversion or extension is not permitted or
required by this Section, then (i) in the case of any Eurocurrency Loan which is
not a Foreign Currency Loan, such Eurocurrency Loan shall be automatically
converted into a Eurocurrency Loan for an Interest Period of one month at the
end of the Interest Period applicable thereto, and (ii) in the case of any
Foreign Currency Loan, such Eurocurrency Loan shall be automatically continued
as a Eurocurrency Loan in the same Foreign Currency for an Interest Period of
one month. The Agent shall give each Lender notice as promptly as practicable of
any such proposed extension or conversion affecting any Loan.
2.5 REDUCTIONS AND INCREASE IN COMMITMENTS AND PREPAYMENTS.
(a) VOLUNTARY REDUCTION IN REVOLVING COMMITMENT. The Borrowers
may from time to time permanently reduce the aggregate amount of the
Revolving Commitments in whole or in part without premium or penalty
except as provided in
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Section 2.14 upon three (3) Business Days' prior written notice to the
Agent; PROVIDED that after giving effect to any such voluntary
reduction the Dollar Amount (determined as of the most recent
Determination Date) of Revolving Loans and Foreign Currency Loans then
outstanding shall not exceed the Aggregate Revolving Committed Amount,
as reduced. Partial reductions in the aggregate Revolving Commitments
shall in each case be in a minimum aggregate amount of $1,000,000 and
integral multiples of $1,000,000 in excess thereof.
(b) INCREASE IN REVOLVING LOAN COMMITMENTS. The Borrowers
shall have the right upon at least thirty (30) Business Days' prior
written notice to the Agent and the Lenders to request an increase the
Revolving Committed Amount by up to $25,000,000, in a single increase,
at any time on or after the Closing Date. Approval of such request
shall be in the sole discretion of the Agent and the Lenders and any
such increase shall be subject to the following additional conditions:
(i) no Default or Event of Default shall have
occurred and be continuing on the date on which such Revolving
Committed Amount increase is to become effective;
(ii) the representations and warranties set forth in
Section 3 of this Credit Agreement shall be true and correct
in all material respects on and as of the date on which such
Revolving Committed Amount increase is to become effective;
(iii) on or before the date on which such Revolving
Committed Amount increase is to become effective, the Agent
shall have received, for its own account, the mutually
acceptable fees and expenses required by separate agreement of
the Borrowers and the Agent to be paid in connection with such
increase;
(iv) such Revolving Committed Amount increase shall
be an integral multiple of $5,000,000 and shall in no event be
less than $5,000,000; and
(v) such requested Revolving Committed Amount
increase shall be effective on such date only to the extent
that, on or before such date, the Agent shall have received
and accepted a corresponding amount of additional
Commitment(s) pursuant to a commitment letter(s) acceptable to
the Agent from one or more Lenders acceptable to the Agent
and, with respect to any Lender that is not at such time a
Lender hereunder, to the Borrowers.
(c) MANDATORY PREPAYMENT ON REVOLVING LOANS. If at any time
the Dollar Amount (determined as of the most recent Determination Date)
of Revolving Loans and Foreign Currency Loans then outstanding shall
exceed the Aggregate Revolving Committed Amount, as reduced from time
to time, the Borrowers shall immediately
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make payment on the Loans in an amount sufficient to eliminate such
excess. Any such mandatory prepayments shall be applied first to Loans
in the currency in which such payment is received, and first to Base
Rate Loans and then to Eurocurrency Loans in direct order of their
Interest Period maturities.
(d) VOLUNTARY PREPAYMENTS. Loans may be prepaid in whole or in
part without premium or penalty; PROVIDED that (i) Eurocurrency Loans
may not be prepaid other than at the end of the Interest Period
applicable thereto and only then on three (3) Business Days' (four (4)
Business Days' in the case of Foreign Currency Loans) prior written
notice to the Agent, (ii) any prepayment of Eurocurrency Loans will be
subject to Section 2.14, and (iii) each such partial prepayment shall
be in a minimum aggregate principal Dollar Amount of $1,000,000 and
integral multiples of $1,000,000 in excess thereof ($500,000 in the
case of Base Rate Loans). Voluntary prepayments on the Revolving Loans
may be reborrowed in accordance with the provisions hereof. Any such
voluntary prepayments shall be applied first to Base Rate Loans and
then to Eurocurrency Loans in direct order of their Interest Period
maturities.
(e) NOTICE. Except as otherwise provided herein, the Borrowers
will provide notice to the Agent of any prepayment by 11:00 A.M.
(Charlotte, North Carolina time) on the day prior to the date of
prepayment.
2.6 REPLACEMENT OF LENDERS UNDER CERTAIN CIRCUMSTANCES.
The Borrowers shall be permitted to replace any Lender which (a)
requests reimbursements for amounts owing pursuant to Section 2.9, 2.12 or 2.13
or (b) defaults in its obligation to make loans under this Agreement, with a
replacement financial institution; provided that (i) such replacement does not
conflict with any applicable Requirement of Law, (ii) no Default of Event of
Default shall have occurred and be continuing, (iii) with respect to clause (a)
hereof, prior to any such replacement, such Lender shall not have eliminated the
continued need for payments of amounts owing pursuant to Section 2.9, 2.12
and/or 2.13, (iv) the replacement financial institution shall purchase, at par,
all Loans and other amounts owing to such replaced Lender on or prior to the
date of replacement, (v) the Borrowers shall be liable to such replaced Lender
under Section 2.14 if any Eurocurrency Loan owing to such replaced Lender shall
be purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with Section 9.6
(provided that the Borrowers or the replacement financial institution shall be
obligated to pay the registration and processing fee referred to therein),
(viii) until such time as such replacement shall be consummated, the Borrowers
shall pay all additional amounts, if any, required pursuant to Section 2.9, 2.12
and/or 2.13, as the case may be, and (ix) in the case of clause (b) above, any
such replacement shall not be deemed to be a waiver of any rights which the
Borrowers, the Administrative Agent or any other Lender shall have against the
replaced Lender.
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2.7 FEES.
(a) COMMITMENT FEE. In consideration of the Revolving
Commitments hereunder, the Borrowers agree to pay to the Agent for the
ratable benefit of the Lenders an aggregate commitment fee (the
"COMMITMENT FEE") equal to the Applicable Commitment Fee Percentage per
annum on the average daily unused amount of the Revolving Committed
Amount for the applicable period. The Commitment Fee shall accrue from
the Closing Date and shall be payable quarterly in arrears on the 15th
day following the last day of each calendar quarter for the immediately
preceding quarter (or portion thereof) beginning with the first such
date to occur after the Closing Date.
(b) FACILITY FEE. The Borrowers agree to pay to the Agent, for
its own account, the facility fee (the "FACILITY FEE"), as referred to
in the Commitment Letter.
2.8 EUROCURRENCY RESERVE COMPENSATION.
For so long as any Lender maintains reserves against "Eurocurrency
liabilities" (or any other category of liabilities which includes deposits by
reference to which the interest rate on any Eurocurrency Loans is determined),
and, as a result, the cost to such Lender of making or maintaining any of its
Eurocurrency Loans is increased, then such Lender may require the Borrowers to
pay, contemporaneously with each payment of interest on such Eurocurrency Loans
of such Lender, additional interest at a rate per annum up to but not exceeding
the excess of (i) (A) the applicable Eurocurrency Rate divided by (B) one MINUS
the Eurocurrency Reserve Percentage OVER (ii) the applicable Eurocurrency Rate.
Any Lender wishing to require payment of such additional interest (x) shall so
notify the Borrowers and the Agent, in which case such additional interest on
the Eurocurrency Loans of such Lender shall be payable to such Lender at the
place indicated in such notice with respect to each Interest Period commencing
at least three (3) Business Days after the giving of such notice and (y) shall
furnish to the Borrowers at least five (5) Business Days prior to each date on
which interest is payable on the Eurocurrency Loans a certificate setting forth
the amount to which such Lender is then entitled under this Section 2.8 (which
shall be consistent with such Lender's good faith estimate of the level at which
the related reserves are maintained by it). Each such certificate shall be
accompanied by such information as the Borrowers may reasonably request as to
the computation set forth therein.
2.9 CAPITAL ADEQUACY.
If any Lender has determined, that the adoption or the becoming
effective of, or any change in, or any change by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, in the interpretation or administration of any
applicable law, rule or regulation regarding capital adequacy, in each case
after the date hereof, or compliance by such Lender or any controlling
corporation of such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets (or that of any controlling
corporation of such
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Lender) as a consequence of its commitments or obligations hereunder to a level
below that which such Lender or any controlling corporation of such lender could
have achieved but for such adoption, effectiveness, change or compliance (taking
into consideration such Lender's policies (or those of any controlling
corporation of such Lender) with respect to capital adequacy), then, upon five
Business Days' notice from such Lender to the Borrowers, accompanied by a
certificate from such Lender setting forth the additional amount or amounts to
be paid to it hereunder, the Borrowers shall be obligated to pay to such Lender
such additional amount or amounts as will compensate such Lender or any such
controlling corporation of such Lender for such reduction; provided that the
Borrowers shall not be required to compensate such Lender pursuant to this
Section 2.9 for any reductions incurred more than six months prior to the date
that such Lender notifies the Borrowers of such change in applicable law, rule
or regulation regarding capital adequacy giving rise to such reduction. Each
determination by any such Lender of amounts owing under this Section shall,
absent manifest error, be conclusive and binding on the parties hereto.
2.10 UNAVAILABILITY.
In the event, and on each occasion, that on the day that is two (2)
Business Days prior to the commencement of any Interest Period for a
Eurocurrency Loan of any amount, Interest Period or currency, the Agent shall
have determined or shall have been notified by the Majority Lenders (a) that
deposits in the relevant amount in the relevant currency and for the relevant
Interest Period are not available in the relevant market to any Lender, or that
reasonable means do not exist for ascertaining the Eurocurrency Rate for any
such Loan, or (b) that the rates at which such deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurocurrency Loan during such Interest Period, the Agent shall
promptly give written or telecopy notice of such determination to the Borrowers
and the Lenders. In the event of any such determination, until the Agent shall
have advised the Borrowers and the Lenders that the circumstances giving rise to
such notice no longer exist, any request by a Borrower for a Eurocurrency Loan
of the affected amount, Interest Period or currency, or a conversion to or
continuation of a Eurocurrency Loan of the affected amount, Interest Period or
currency, shall be deemed rescinded. Each determination by the Agent hereunder
shall be conclusive absent manifest error.
2.11 ILLEGALITY.
(a) Notwithstanding any other provision herein, if (i) the
adoption of or any change in any Requirement of Law or in the
interpretation or application thereof occurring after the Closing Date
shall make it unlawful for any Lender to make or maintain any
Eurocurrency Loan or Foreign Currency Loan, or (ii) there shall have
occurred any change in national or international financial, political
or economic conditions (including the imposition of or any change in
exchange controls) or currency exchange rates which would make it
impracticable for any Lender to make Loans denominated in any Foreign
Currency to any Borrower, as contemplated by this Credit Agreement,
then such Lenders, together with Lenders giving notice under Section
2.10
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and 2.12, shall be an "AFFECTED LENDER" and by written notice to the
Borrowers and to the Agent:
(i) such Lender may declare that Eurocurrency Loans
or Foreign Currency Loans (in the affected currency or
currencies), as the case may be, will not thereafter (for the
duration of such unlawfulness or impracticability) be made by
such Lender hereunder, whereupon any request for a
Eurocurrency Loan or Foreign Currency Loan (in the affected
currency or currencies), as the case may be, shall, as to such
Lender only, (A) if such Loan is not a Foreign Currency Loan,
be deemed a request for a Base Rate Loan, unless such
declaration shall be subsequently withdrawn and (B) if such
Loan is a Foreign Currency Loan, be deemed to have been
withdrawn, unless such declaration shall be subsequently
withdrawn; and
(ii) such Lender may require that all outstanding
Eurocurrency Loans or Foreign Currency Loans (in the affected
currency or currencies), as the case may be, made by it be (A)
if such Loans are not Foreign Currency Loans, converted to
Base Rate Loans, in which event all such Eurocurrency Loans
shall be automatically converted to Base Rate Loans as of the
effective date of such notice as provided in paragraph (b)
below or (B) if such Loans are Foreign Currency Loans, repaid
immediately, in which event all such Foreign Currency Loans
(in the affected currency or currencies) shall be required to
be repaid in full by the Borrowers as of the effective date of
such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii)
above with respect to any Loans which are not Foreign Currency Loans,
all payments and prepayments of principal which would otherwise have
been applied to repay the Eurocurrency Loans that would have been made
by such Lender or the converted Eurocurrency Loans of such Lender shall
instead be applied to repay the Base Rate Loans made by such Lender in
lieu of, or resulting from the conversion, of such Eurocurrency Loans.
(b) For purposes of this Section 2.11, a notice to the
Borrowers by any Lender shall be effective as to each such Loan, if
lawful, on the last day of the Interest Period currently applicable to
such Loan; in all other cases such notice shall be effective on the
date of receipt by the Borrowers.
2.12 REQUIREMENTS OF LAW.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
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(a) shall subject such Lender to any additional tax of any
kind whatsoever with respect to any Eurocurrency Loans made by it or
its obligation to make Eurocurrency Loans, or change the basis of
taxation of payments to such Lender in respect thereof (except for (i)
Non-Excluded Taxes covered by Section 2.13 (including Non-Excluded
Taxes imposed solely by reason of any failure of such Lender to comply
with its obligations under Section 2.13(b)) and (ii) changes in taxes
measured by or imposed upon the overall net income, or franchise tax
(imposed in lieu of such net income tax), of such Lender or its
applicable lending office, branch, or any affiliate thereof));
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurocurrency Rate
hereunder or any additional interest payable under Section 2.8; or
(c) shall impose on such Lender any other similar condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender reasonably deems to be material,
of making, converting into, continuing or maintaining Eurocurrency
Loans or to reduce any amount receivable hereunder in respect thereof,
then, in any such case, upon notice to the Borrowers from such Lender,
through the Agent, in accordance herewith, each Borrower shall be
obligated to promptly pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such increased cost or
reduced amount receivable, PROVIDED that, in any such case other than
as set forth in clause (b) above, any Borrower may elect to convert the
Eurocurrency Loans (other than Foreign Currency Loans) made by such
Lender hereunder to Base Rate Loans by giving the Agent at least one
Business Day's notice of such election, in which case the applicable
Borrower shall promptly pay to such Lender, upon demand, without
duplication, such amounts, if any, as may be required pursuant to
Section 2.14. If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall provide prompt notice
thereof to the Borrowers, through the Agent, certifying (x) that one of
the events described in this Section 2.12 has occurred and describing
in reasonable detail the nature of such event, (y) as to the increased
cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof; provided that the Borrowers
shall not be required to compensate such Lender pursuant to this
Section 2.12 for any increased costs incurred more than six months
prior to the date that such Lender notifies the Borrowers of such
change in such Requirement of Law giving rise to such increased costs.
Such a certificate as to any additional amounts payable pursuant to
this subsection submitted by such Lender,
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through the Agent, to the Borrowers shall be conclusive and binding on
the parties hereto in the absence of manifest error. This covenant
shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.
2.13 TAXES.
(a) Except as provided below in this subsection, all payments
made by any Borrower under this Credit Agreement and any Notes shall be
made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any
court, or governmental body, agency or other official, excluding: (i)
taxes measured by or imposed upon the overall net income of any Lender
or its applicable lending office, or any branch or affiliate thereof,
and (ii) all franchise taxes, branch taxes, taxes on doing business or
taxes on the overall capital or net worth of any Lender or its
applicable lending office, or any branch or affiliate thereof, in each
case imposed in lieu of net income taxes, imposed (A) by the
jurisdiction under the laws of which such Lender, applicable lending
office, branch or affiliate is organized or is located, or in which its
principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof, or (B) by
reason of any connection between the jurisdiction imposing such tax and
such Lender, applicable lending office, branch or affiliate other than
a connection arising solely from such Lender having executed, delivered
or performed its obligations, or received payment under or enforced,
this Credit Agreement or any Notes. If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Agent or any Lender hereunder or under any Notes, (1)
the amounts so payable to the Agent or such Lender shall be increased,
subject to subsection (c) of this Section 2.13 to the extent necessary
to yield to the Agent or such Lender (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Credit Agreement and any
Notes, PROVIDED, HOWEVER, that a Borrower shall be entitled to deduct
and withhold any Non-Excluded Taxes imposed by the United States
federal government and shall not be required to increase any such
amounts payable to any Lender that is not organized under the laws of
the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection
whenever any such Non-Excluded Taxes are payable by such Borrower, and
(2) as promptly as possible thereafter such Borrower shall send to the
Agent for its own account or for the account of such Lender, as the
case may be, a certified copy of an original official receipt received
by such Borrower showing payment thereof. If a Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Agent the required receipts or other required
documentary evidence, such Borrower shall indemnify the Agent and the
Lenders for any incremental taxes, interest or penalties that may
become payable by the Agent or any Lender as a result of any such
failure. The agreements in this subsection
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shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(X)(i) on or before the date of any payment by a
Borrower under this Credit Agreement or Notes to such Lender,
deliver to the Borrowers and the Agent (A) two (2) duly
completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case
may be, certifying that it is entitled to receive payments
under this Credit Agreement and any Notes without deduction or
withholding of any United States federal income taxes and (B)
an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is
entitled to an exemption from United States backup withholding
tax;
(ii) deliver to the Borrowers and the Agent two (2)
further copies of any such form or certification on or before
the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Borrowers; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Borrowers or the Agent; or
(Y) Each Lender or transferee that is not a "bank"
under Section 881(c)(3)(A) of the Internal Revenue Code
thereof shall:
(i) on or before the date it becomes a party to this
Credit Agreement (or, in the case of a participant, on or
before the date such participant becomes a participant
hereunder), deliver to the Borrowers and the Agent (i) a
statement under penalties of perjury that such Lender or
transferee (x) is not a "bank" under Section 881(c)(3)(A) of
the Internal Revenue Code, is not subject to regulatory or
other legal requirements as a bank in any jurisdiction, and
has not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to any
Governmental Authority, any application made to a rating
agency or qualification for any exemption from tax, securities
law or other legal requirements, (y) is not a 10-percent
shareholder within the meaning of Section 811(c)(3)(B) of the
Internal Revenue Code and (z) is not a controlled foreign
corporation receiving interest from a related person within
the meaning of Section 881(c)(3)(C) of the Internal Revenue
Code and (ii) a properly completed and duly executed Internal
Revenue Service Form W-8 or applicable successor form;
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(ii) deliver to the Borrowers and the Agent two
further properly completed and duly executed copies of such
Form W-8 expires or becomes obsolete or after the occurrence
of any event requiring a change in the most recent form
previously delivered by it to the Borrowers or upon the
request of the Borrowers; and
(iii) obtain such extensions of time for filing and
completing such forms or certifications as may be reasonably
requested by the Borrowers or the Agent;
unless in any such case any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder which
renders all such forms inapplicable or which would prevent such Lender
from duly completing and delivering any such form with respect to it
and such Lender so advises the Borrowers and the Agent.
(c) Each Lender shall, as soon as is reasonably practicable
after the Closing Date, file a form FD 13 with the United States
Internal Revenue Service in relation to payments made or to be made by
Penton UK under this Credit Agreement and any Foreign Currency Loans.
If the United States Internal Revenue Service determines that the form
FD 13 filed by such Lender does not establish that the Lender is
entitled to receive payments made by Penton UK under this Credit
Agreement, the Foreign Currency Loans and the Revolving Note as at the
date of delivery thereof without deduction or withholding of English
withholding taxes or, if the Inland Revenue requires proof of such
entitlement, such Lender shall, within forty-five (45) days after a
written request from Penton UK, offer such reasonable assistance as
Penton UK may request in order to establish such Lender's entitlement
(if any) to receive payments made by Penton UK under this Credit
Agreement, any Foreign Currency Loans and the Revolving Note without
deduction or withholding of English withholding taxes. Penton UK shall
not be required pursuant to subsection (a) of this Section 2.13 to
increase any amounts payable to any Lender because of any deduction or
withholding of English withholding taxes required by English law (and
Penton UK, if required by law to do so, shall be entitled to withhold
such amounts and pay such amounts to the government of England) if the
obligation to make such deduction or withholding would not have arisen
but for the Lender not being entitled (pursuant to any applicable tax
treaty or otherwise) to receive payments made by Penton UK under this
Agreement, any Foreign Currency Loans and the Revolving Note executed
in its favor or the failure by such Lender to provide Penton UK and the
United States Internal Revenue Center with the requested forms or other
reasonable assistance.
(d) Each Lender agrees to make a good faith effort to minimize
any Non-Excluded Taxes by making, funding or maintaining its Foreign
Currency Loans through another lending office located in another
jurisdiction so long as the making, funding or maintenance of such
Foreign Currency Loans through such other office does not, in the
reasonable judgment of such Lender, materially affect such Lender;
provided that any
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Lender which is unable or unwilling to fund its Foreign Currency Loans
through a branch of such Lender in England will so notify the
Borrowers.
(e) Each Person that shall become a Lender or a participant of
a Lender pursuant to subsection 9.6 shall, upon the effectiveness of
the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection,
PROVIDED that in the case of a participant of a Lender the obligations
of such participant of a Lender pursuant to subsection (b) shall be
determined as if the participant of a Lender were a Lender except that
such participant of a Lender shall furnish all such required forms,
certifications and statements to the Lender from which the related
participation shall have been purchased.
2.14 INDEMNITY.
Each Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (other
than through such Lender's gross negligence or willful misconduct and except as
set forth in Sections 2.10 and 2.11) as a consequence of (a) default by such
Borrower in making a borrowing of, conversion into or continuation of
Eurocurrency Loans after such Borrower has given a notice requesting the same in
accordance with the provisions of this Credit Agreement, (b) default by such
Borrower in making any prepayment of a Eurocurrency Loan after such Borrower has
given a notice thereof in accordance with the provisions of this Credit
Agreement or (c) the making of a prepayment of Eurocurrency Loans on a day which
is not the last day of an Interest Period with respect thereto. With respect to
Eurocurrency Loans, such indemnification shall be an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of the applicable Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Eurocurrency Loans provided for herein (excluding, however, the Applicable
Interest Rate Percentage included therein, if any) over (ii) the amount of
interest (as reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurocurrency market. The covenants of
each Borrower set forth in this Section 2.14 shall survive the termination of
this Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.15 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) LOANS. Each of the Revolving Loans and Foreign Currency
Loans and payments of principal, interest and fees (including the
Commitment Fee) on or in respect thereof and each reduction in the
Revolving Commitments relating thereto, and each
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conversion or extension of such Loans and obligations shall be
allocated pro rata among the Lenders in accordance with the respective
principal amounts of their outstanding Revolving Loans and Foreign
Currency Loans.
(b) ADVANCES. Unless the Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its ratable share of such
borrowing available to the Agent, the Agent may assume that such Lender
is making such amount available to the Agent, and the Agent may, in
reliance upon such assumption, make available to a Borrower a
corresponding amount. If such amount is not made available to the Agent
by such Lender within the time period specified therefor hereunder,
such Lender shall pay to the Agent, on demand, such amount with
interest thereon (or, in the case of a Foreign Currency Loan interest
on the daily Dollar Equivalent thereof) at a rate equal to the Federal
Funds Effective Rate for the period until such Lender makes such amount
immediately available to the Agent. A certificate of the Agent
submitted to any Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
2.16 SHARING OF PAYMENTS.
Subject to the terms of Section 2.15 hereof, the Lenders agree among
themselves that, in the event that any Lender shall obtain payment in respect of
any Loan or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means, in excess of its pro rata
share of such payment as provided for in this Credit Agreement, such Lender
shall promptly purchase from the other Lenders a participation in such Loans and
other obligations in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. Each Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan or other obligation in the amount of such participation. Except as
otherwise expressly provided in this Credit Agreement, if any Lender or the
Agent shall fail to remit to the Agent or any other Lender an amount payable by
such Lender or the Agent to the Agent or such other Lender pursuant to this
Credit Agreement on the date when such amount is due, such payments shall be
made together with interest thereon for each date from the date such amount is
due until the date such
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amount is paid to the Agent or such other Lender at a rate per annum equal to
the Federal Funds Effective Rate. If under any applicable bankruptcy, insolvency
or other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section 2.16 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders under this Section 2.16 to share in the benefits of
any recovery on such secured claim.
2.17 PAYMENTS, COMPUTATIONS, ETC.
(a) CURRENCY OF PAYMENTS. Each payment on account of an amount
due from any Credit Party hereunder or under any other Credit Document
shall be made by such Credit Party to the Agent for the PRO RATA
account of the Lenders entitled to receive such payment as provided
herein in the currency in which such amount is denominated and in such
funds as are customary at the place and time of payment for the
settlement of international payments in such currency. Without limiting
the terms of the preceding sentence, accrued interest on any Loans
denominated in a Foreign Currency shall be payable in the same Foreign
Currency as such Loan. Upon request, the Agent will give the Credit
Parties a statement showing the computation used in calculating such
amount, which statement shall be conclusive in the absence of manifest
error. The obligation of each Credit Party to make each payment on
account of such amount in the currency in which such amount is
denominated shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment, which is expressed in or converted
into any other currency, except to the extent such tender or recovery
shall result in the actual receipt by the Agent of the full amount in
the appropriate currency payable hereunder. Each Credit Party agrees
that its obligation to make each payment on account of such amount in
the currency in which such amount is denominated shall be enforceable
as an additional or alternative claim for recovery in such currency of
the amount (if any) by which such actual receipt shall fall short of
the full amount of such currency payable hereunder, and shall not be
affected by judgment being obtained for such amount.
(b) PLACE AND MANNER OF PAYMENTS. Except as otherwise
specifically provided herein, all payments hereunder shall be made to
the Agent in immediately available funds, without offset, deduction,
counterclaim or withholding of any kind, prior to 12:00 noon, local
time in the place where such payment is required to be made pursuant to
this subsection (b), on the date due at:
with respect to payment in Dollars:
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx, Agency Services
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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with respect to payment in British Pounds Sterling:
Royal Bank of Scotland plc
for the account of First Union National Bank, Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Account No.: 00000000
Attention: Xxxxxx Xxxxxx
Reference: Penton Media
Sort Code: 16-56-71
or at such other place as may be designated by the Agent to the
Borrowers in writing. Any payments received after such time shall be
deemed received on the next succeeding Business Day. The Agent may, but
shall not be obligated to, charge any account of any Borrower at the
Agent for the payment when due of all amounts payable by the Borrowers
hereunder. Each Borrower shall, at the time it makes any payment under
this Credit Agreement, specify to the Agent the Loans, Fees, interest
or other amounts payable by such Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to specify,
or if such application would be inconsistent with the terms hereof, the
Agent shall distribute such payment to the Lenders in such manner as
the Agent may reasonably determine to be appropriate in respect of
obligations owing by such Borrower hereunder, subject to the terms of
Section 2.15(a)). The Agent shall promptly remit in same day funds to
each Lender such Lender's share, if any, of payments received by the
Agent for the account of such Lender. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and Fees for the period of such
extension), except that in the case of Eurocurrency Loans, if the
extension would cause the payment to be made in the next following
calendar month, then such payment shall instead be made on the next
preceding Business Day. Except as expressly provided otherwise herein,
all computations of interest and fees shall be made based on a year of
365 or 366 days, as appropriate. All computations of interest on
Eurocurrency Loans and Foreign Currency Loans (other than Loans made in
British Pounds Sterling) shall be based on a year of 360 days for the
actual days elapsed. Interest shall accrue from and include the date of
borrowing, but exclude the date of payment.
(c) ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement to the
contrary, after the occurrence and during the continuance of an Event
of Default, all amounts collected or received by the Agent or any
Lender on account of the Obligations or any other amounts outstanding
under any of the Credit Documents or in respect of the Collateral shall
be paid over or delivered as follows:
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FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agent in connection with enforcing the rights of the Lenders
under the Credit Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses, (including without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its rights
under the Credit Documents or otherwise with respect to the Obligations
owing to such Lender;
FOURTH, to the payment of all accrued interest and fees in
respect of the Obligations;
FIFTH, to the payment of the outstanding principal amount of
the Obligations;
SIXTH, to all other Obligations and other obligations which
shall have become due and payable under the Credit Documents or
otherwise and not repaid pursuant to clauses "FIRST" through "FIFTH"
above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to
the next succeeding category; and (ii) each of the Lenders shall
receive an amount equal to its pro rata share (based on the proportion
that the then outstanding Loans held by such Lender bears to the
aggregate then outstanding Loans) of amounts available to be applied
pursuant to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH" above.
2.18 CHANGE OF CURRENCY.
(a) If more than one currency or currency unit is at any time
recognized by the Bank of England as the lawful currency of the United
Kingdom, then (i) any reference in the Credit Documents to, and any
obligations arising under the Credit Documents in, British Pounds
Sterling, shall be translated into, or paid in, the currency or
currency unit designated by the Agent on behalf of the Lenders and (ii)
any translation from one currency or currency unit to another shall be
at the official rate of exchange recognized by the Bank of England for
the conversion of that currency or currency unit into the other,
rounded up or down by the Administrative Agent on behalf of the Lenders
acting reasonably.
(b) If a change in British Pounds Sterling occurs (including,
without limitation, in consequence of European monetary union), this
Agreement will be
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amended as specified by the Agent on behalf of the Lenders to reflect
the change in currency and to put the Lenders in the same position, as
far as possible, as they would have been had no change in currency
occurred.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Loans herein provided for, the Borrowers hereby represent and warrant to the
Administrative Agent and to each Lender that:
3.1 FINANCIAL CONDITION.
The financial statements provided to the Administrative Agent and the
Lenders, consisting of an audited balance sheet of the Borrowers dated as of
December 31, 1997, together with related statements of operations and statements
of cash flows, copies of which have heretofore been provided to each of the
Lenders, are complete and correct in all material respects and present fairly in
all material respects in accordance with GAAP the financial condition and pro
forma results from operations of the entities for the periods specified, except
as noted therein and subject to normal year-end adjustments and the footnote
disclosures required by GAAP.
3.2 NO CHANGE.
Since December 31, 1997, there has been no development or event which
has had a Material Adverse Effect.
3.3 EXISTENCE; COMPLIANCE WITH LAW.
Each of the Borrowers and each Subsidiary (a) is organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the limited liability company, corporate or partnership
power and authority and the legal right to own and operate all its material
property, to lease the material property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is qualified as a foreign
limited liability company, corporation or partnership and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification except to
the extent that the failure to so qualify or be in good standing would not, in
the aggregate, have a Material Adverse Effect and (d) is in compliance with all
applicable Requirements of Law except to the extent that the failure to comply
therewith would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
3.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each of the Borrowers and each Subsidiary has the corporate, limited
liability company or partnership power and authority and the legal right to
make, deliver and perform the Credit
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Documents to which it is party and has taken all necessary company, corporate or
partnership action to authorize the execution, delivery and performance by it of
the Credit Documents to which it is party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery or performance of any Credit Document
by the Borrowers or any Subsidiary (other than those which have been obtained)
or with the validity or enforceability of any Credit Document against the
Borrowers or any Subsidiary (except such filings as are necessary in connection
with the perfection of the Liens created by such Credit Documents) except to the
extent that the failure to obtain any such consent or authorization or to affect
any filing or notice would not in the aggregate, reasonably be expected to have
a Material Adverse Effect. Each Credit Document to which the Borrowers or any
Subsidiary is a party has been duly executed and delivered on behalf of the
Borrowers or such Subsidiary. Each Credit Document to which it is a party
constitutes a legal, valid and binding obligation of the Borrowers or such
Subsidiary enforceable against the Borrowers or such Subsidiary in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
3.5 NO LEGAL BAR; NO DEFAULT.
The execution, delivery and performance of the Credit Documents, the
borrowings thereunder and the use of the proceeds of the Loans will not violate
any Requirement of Law or any Contractual Obligation of the Borrowers or any
Subsidiary (except those as to which waivers or consents have been obtained and
except for any such violation which would not reasonably be expected to have a
Material Adverse Effect), and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or Contractual Obligation other than the
Liens arising under or contemplated in connection with the Credit Documents.
Neither of the Borrowers nor any Subsidiary is in default under or with respect
to any of its Contractual Obligations in any respect which would reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
3.6 NO MATERIAL LITIGATION.
Except as set forth in SCHEDULE 3.6, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge of the Borrowers, threatened by or against the Borrowers
or any Subsidiary or against any of its or their respective properties or
revenues (a) with respect to the Credit Documents or any Loan or any of the
transactions contemplated hereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
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3.7 INVESTMENT COMPANY ACT.
Neither of the Borrowers nor any Subsidiary is an "investment company",
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
3.8 FEDERAL REGULATIONS.
No part of the proceeds of any Loan hereunder will be used directly or
indirectly for any purpose which violates, or which would be inconsistent with,
the provisions of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect. Neither
of the Borrowers nor any Subsidiary owns "margin stock" except as identified in
the financial statements referred to in Section 3.1 and the aggregate value of
all "margin stock" owned by the Borrowers and the Subsidiaries taken as a group
does not exceed 25% of the value of their assets.
3.9 ERISA.
Neither a Reportable Event nor an "accumulated funding deficiency"
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code, except to the extent that any such occurrence or failure to comply
would not reasonably be expected to have a Material Adverse Effect. No
termination of a Single Employer Plan has occurred resulting in any liability
that has not been satisfied, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period which would reasonably be expected to have
a Material Adverse Effect. The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by an amount which, as determined in
accordance with GAAP, would reasonably be expected to have a Material Adverse
Effect. Neither of the Borrowers, nor any Subsidiary, nor any Commonly
Controlled Entity is currently subject to any liability for a complete or
partial withdrawal from a Multiemployer Plan which would reasonably be expected
to have a Material Adverse Effect.
3.10 ENVIRONMENTAL MATTERS.
Except to the extent that all of the following, in the aggregate, would
not reasonably be expected to have a Material Adverse Effect:
(a) To the best knowledge of the Borrowers, the facilities and
properties owned, leased or operated by the Borrowers and their
Subsidiaries (the "PROPERTIES") do not use, store, generate, dispose of
or handle any Materials of Environmental Concern in
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amounts or concentrations which could reasonably be expected to give
rise to liability under any applicable Environmental Law.
(b) To the best knowledge of the Borrowers, the Properties and
all operations at the Properties are in material compliance, and have
in the last five years been in compliance, in all material respects
with all applicable Environmental Laws, and there has been no material
violation of any Environmental Law with respect to the Properties or
the business operated by the Borrowers (the "BUSINESS").
(c) Neither of the Borrowers nor any Subsidiary has received
any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Properties or the
Business, nor do the Borrowers have knowledge that any such notice is
being threatened.
(d) To the best knowledge of the Borrowers, all Materials of
Environmental Concern at, on or under any of the Properties have been
generated, treated, stored or disposed of in accordance with applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the best of the knowledge of the Borrowers,
threatened, under any Environmental Law to which either of the
Borrowers or any Subsidiary is or will be named as a party with respect
to the Properties or the Business or any facility that has received
Materials of Environmental Concern generated by the Borrowers, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business.
(f) To the best knowledge of the Borrowers, there has been no
release of Materials of Environmental Concern at or from the Properties
arising from or related to the Business or the operations of the
Borrowers or any Subsidiary in connection with the Properties, in
violation of or in amounts or in a manner that could reasonably be
expected to give rise to liability under applicable Environmental Laws.
3.11 PURPOSE OF LOAN.
The proceeds of the Loans will be used to finance the acquisition of
the Acquired Assets and closing costs incurred in connection therewith, to repay
existing Indebtedness, to pay closing costs incurred in connection herewith and
to provide senior debt capacity to make acquisitions and investments permitted
hereby and to provide general working capital.
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3.12 SUBSIDIARIES.
Set forth on SCHEDULE 3.12 is a complete and accurate list of all
Subsidiaries of the Borrowers as of the Closing Date. As of the Closing Date,
information on the attached Schedule includes state of organization; the number
of shares of each class of capital stock or partnership or other equity
interests (identified by type) outstanding; the number and percentage of
outstanding shares of each class of stock or percentage of ownership interest;
and the number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and similar rights. The outstanding capital
stock and partnership and other equity interests of all such Subsidiaries are
validly issued, fully paid and non-assessable and are owned, free and clear of
all Liens (other than those arising under or contemplated in connection with the
Credit Documents). As of the Closing Date, except as set forth on SCHEDULE 3.12,
there are no outstanding options or other rights pertaining to the partnership
or other equity interests of the Borrowers, and no voting trusts, shareholders'
or partners' agreements (other than the partnership agreements relating to the
formation, organization, operation and governance of the partnerships, copies of
which have been provided to the Administrative Agent and the Lenders) or similar
agreement affecting either ownership of or the right to vote such partnership
interests.
3.13 INTELLECTUAL PROPERTY RIGHTS.
The Borrowers and their Subsidiaries own or have the right to use,
subject to any of its obligations under any valid and binding license agreement,
the Intellectual Property (as defined below) disclosed in SCHEDULE 3.13 hereto,
which, to the best of their knowledge, represents all Intellectual Property
individually or in the aggregate material to the conduct of the businesses of
the Borrowers and their Subsidiaries taken as a whole on the date hereof. Except
as disclosed in SCHEDULE 3.13 hereto or where the failure shall not have a
Material Adverse Effect, (i) each of the Borrowers or a Subsidiary has the right
to use the Intellectual Property disclosed in SCHEDULE 3.13 hereto in perpetuity
and without payment of royalties, (ii) all registrations with and applications
to Governmental Authorities in respect of such Intellectual Property are valid
and in full force and effect and are not subject to the payment of any taxes or
maintenance fees or the taking of any other actions by the Borrowers or a
Subsidiary to maintain their validity or effectiveness, and (iii) there are no
restrictions on the direct or indirect transfer of any Contractual Obligation,
or any interest therein, held by the Borrowers or any Subsidiary in respect of
such Intellectual Property. Neither the Borrowers nor any Subsidiary of the
Borrowers is in default (or with the giving of notice or lapse of time or both,
would be in default) under any license to use such Intellectual Property the
loss of which would reasonably be expected to have a Material Adverse Effect To
the best of the Borrowers' and their Subsidiaries' knowledge none of the
Intellectual Property is being infringed by any third party the loss of which
may have a Material Adverse Effect, and to the best of the Borrowers' and their
Subsidiaries' knowledge neither the Borrowers nor any Subsidiary of the
Borrowers is infringing any Intellectual Property of any third party the
infringement of which would reasonably be expected to have a Material Adverse
Effect. For purposes of this Section 3.13, "INTELLECTUAL PROPERTY" means patents
and patent rights, trademarks and trademark rights, trade names and trade name
rights, service marks and service xxxx rights, copyrights and copyright rights,
including the right to xxx for past
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infringement, licenses, proprietary information, designs, processes, inventions,
software and related intellectual property rights and all pending applications
for and registrations of any of the foregoing.
3.14 NO BURDENSOME RESTRICTIONS.
No applicable Requirement of Law known to the Borrowers or Contractual
Obligation of the Borrowers could reasonably be expected to have a Material
Adverse Effect.
3.15 TAXES.
The Borrowers and their Subsidiaries have filed, or caused to be filed,
all material tax returns (Federal, state, local and foreign) required to be
filed on or prior to the Closing Date and paid all taxes shown thereon to be due
(including interest and penalties) and have paid all other taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing (or necessary to preserve
any Liens in favor of the Lenders) with respect to taxable periods ending on or
before the Closing Date by them, except for such taxes (i) which are not yet
delinquent, (ii) as are being contested in good faith and by proper proceedings,
and against which adequate reserves are being maintained in accordance with GAAP
or (iii) the nonpayment of which would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Borrowers are not aware of any
proposed material tax assessments against it or any of their Subsidiaries.
3.16 NO INTEREST IN REAL ESTATE.
Other than the fee simple interests and leasehold interests reflected
on SCHEDULE 3.16, neither the Borrowers nor any of their Subsidiaries has any
interest in any real property.
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO CLOSING DATE.
This Agreement shall become effective upon the satisfaction of the
following conditions precedent:
(a) EXECUTION OF AGREEMENT. The Administrative Agent shall
have received (i) multiple counterparts of this Agreement for each
Lender, executed by a duly authorized officer of each party hereto and
(ii) for the account of each Lender a Revolving Note executed by a duly
authorized officer of each of the Borrowers, in each case conforming to
the requirements of this Agreement.
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(b) LIABILITY AND CASUALTY INSURANCE. The Administrative Agent
shall have received copies of insurance policies or certificates of
insurance evidencing liability and casualty insurance meeting the
requirements set forth herein.
(c) CORPORATE DOCUMENTS. The Administrative Agent shall have
received the following:
(i) ARTICLES OF INCORPORATION. Copies of the
certificate of formation, articles of organization, articles
of incorporation or charter documents of the Borrowers and the
Guarantors certified to be true and complete as of a recent
date by the appropriate governmental authority of the state of
its organization or incorporation.
(ii) RESOLUTIONS. Copies of the resolutions taken by
the directors of the Borrowers and the Guarantors approving
and adopting the Credit Documents, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary as of
the Closing Date to be true and correct and in full force and
effect as of such date.
(iii) BYLAWS. A copy of the bylaws or memorandum of
association, as the case may be, of the Borrowers and the
Guarantors certified by a secretary or assistant secretary as
of the Closing Date to be true and correct and in full force
and effect as of such date.
(iv) GOOD STANDING. Copies of (A) certificates of
good standing, existence or its equivalent with respect to the
Borrowers and the Guarantors certified as of a recent date by
the appropriate governmental authorities of the state of
incorporation and each other state in which the failure to so
qualify and be in good standing would have a material adverse
effect on the business or operations of the Borrowers or the
Guarantors in such state and (B) a certificate indicating
payment of all corporate franchise taxes certified as of a
recent date by the appropriate governmental taxing
authorities.
(d) OFFICER'S CERTIFICATE. The Administrative Agent shall have
received a certificate of a duly authorized secretary or assistant
secretary of each of the Borrowers and the Guarantors dated the Closing
Date, substantially in the form of SCHEDULE 4.1(D) with appropriate
insertions and attachments.
(e) LEGAL OPINION OF COUNSEL. The Administrative Agent shall
have received, with a copy for each Lender, opinions of various counsel
for the Borrowers and the Guarantors, dated the Closing Date and
addressed to the Administrative Agent and the Lenders, in form and
substance satisfactory to Administrative Agent and the Lenders.
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(f) COMPLIANCE AND SOLVENCY CERTIFICATES. The Administrative
Agent shall have received from an Authorized Signatory (i) a
certificate regarding the accuracy of representations and warranties
and the absence of Defaults, in form reasonably acceptable to the
Administrative Agent, and (ii) a solvency certificate substantially in
the form of SCHEDULE 4.1(F)(II), demonstrating the solvency of the
Borrowers and each of the Guarantors.
(g) FEES. The Agent shall have received all fees owing to each
of them pursuant to the Commitment Letter.
(h) LITIGATION. There shall not exist any (i) order, decree,
judgment, ruling or injunction which restrains the consummation of the
acquisition of the Acquired Assets in the manner contemplated by the
Purchase Agreement or (ii) any pending or threatened action, suit,
investigation or proceeding against the Borrowers or any Guarantor that
would have or would reasonably be expected to have a Material Adverse
Effect.
(i) STOCK DISTRIBUTION AND ACQUISITION OF ACQUIRED ASSETS. The
Stock Distribution shall be consummated and the Acquired Assets shall
be acquired by Penton USA pursuant to the Combination Agreement no
later than 5:00 p.m., Charlotte, North Carolina time on the Closing
Date (except that the Lenders acknowledge that Penton USA may not have
received a confirmed certificate of merger from the Secretary of State
of the State of Illinois by such time).
(j) NOTICE OF ACCOUNT DESIGNATION. The Borrowers shall have
executed and delivered to the Administrative Agent a Notice of Account
Designation.
(k) SOURCES AND USES; PAYMENT INSTRUCTIONS. The Borrowers
shall have delivered to the Agent (i) a statement of sources and uses
of funds covering all payments reasonably expected to be made by the
Borrowers in connection with the transactions contemplated by the
Credit Documents to be consummated on the Closing Date, including an
itemized estimate of all fees, expenses and other closing costs and
(ii) payment instructions with respect to each wire transfer to be made
by the Agent on behalf of the Lenders or the Borrowers on the Closing
Date setting forth the amount of such transfer, the purpose of such
transfer, the name and number of the account to which such transfer is
to be made, the name and ABA number of the bank or other financial
institution where such account is located and the name and telephone
number of an individual that can be contacted to confirm receipt of
such transfer.
(l) ADDITIONAL MATTERS. All other documents and legal matters
in connection with the transactions contemplated by this Agreement
shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.
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4.2 CONDITIONS TO ALL LOANS.
The obligation of each Lender to make any Loan hereunder (including the
initial Loans to be made hereunder) is subject to the satisfaction of the
following conditions precedent on the date of making such Loan:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Borrowers and the Subsidiaries herein or which
are contained in any certificate furnished at any time under or in
connection herewith shall be true and correct in all material respects
on and as of the date of such Loan as if made on and as of such date
(except to the extent such representations and warranties expressly
relate to an earlier date).
(b) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of
Default shall have occurred and be continuing on such date or after
giving effect to the Loan to be made on such date unless such Default
or Event of Default shall have been waived in accordance with this
Agreement.
(c) ADDITIONAL CONDITIONS TO REVOLVING LOANS. If a Loan is
made pursuant to Section 2.1, all conditions set forth therein shall
have been satisfied.
(d) ADDITIONAL CONDITIONS TO FOREIGN CURRENCY LOANS. If a Loan
is made pursuant to Section 2.2, all the conditions set forth therein
shall have been satisfied.
Each request for a Loan and each acceptance by the Borrowers of a Loan
shall be deemed to constitute a representation and warranty by the Borrowers as
of the date of such Loan that the applicable conditions in paragraphs (a), (b),
(c) and (d) have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrowers hereby covenant and agree that on the Closing Date, and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Note remains outstanding and unpaid, and the Loans, together
with interest, fees and all other amounts owing to the Administrative Agent or
any Lender hereunder, are paid in full, the Borrowers shall, and shall cause
each of their Subsidiaries, to:
5.1 FINANCIAL STATEMENTS.
Furnish to the Administrative Agent and each of the Lenders:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available, but in
any event within 90 days after the end of each fiscal year of Penton
USA, a copy of the consolidated balance sheet of Penton USA and its
consolidated Subsidiaries as at the end of such fiscal
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year and the related consolidated statements of income and retained
earnings and of cash flows of Penton USA and its consolidated
Subsidiaries for such year, audited by Price Waterhouse LLP or any
other firm of independent certified public accountants of nationally
recognized standing reasonably acceptable to the Majority Lenders,
setting forth in each case in comparative form the figures for the
previous year, reported on without a "going concern" or like
qualification or exception, or qualification indicating that the scope
of the audit was inadequate to permit such independent certified public
accountants to certify such financial statements without such
qualification; and
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event within 45 days after the end of each of the first three
fiscal quarters of Penton USA, a company-prepared consolidating balance
sheet of Penton USA and its consolidated Subsidiaries as at the end of
such period and related company-prepared statements of income and
retained earnings and of cash flows for Penton USA and its consolidated
Subsidiaries for such quarterly period and for the portion of the
fiscal year ending with such period, in each case setting forth in
comparative form consolidating figures for the corresponding period or
periods of (i) the preceding fiscal year and (ii) the annual budget
plan (subject in each case to normal recurring year-end audit
adjustments);
(c) ANNUAL BUDGET PLAN. As soon as available, but in any event
no more than 30 days after the end of fiscal year December 31, 1998 and
each fiscal year thereafter, a copy of the detailed annual budget or
plan for the next fiscal year set out by fiscal quarter, in form and
detail reasonably acceptable to the Administrative Agent and the
Majority Lenders, together with a summary of the material assumptions
made in the preparation of the budget or plan;
all such financial statements to include a breakdown by lines of business to
fairly present in all material respects the financial condition and results from
operations of the entities and for the periods specified (subject, in the case
of interim statements, to normal recurring year-end audit adjustments) and to be
prepared in reasonable detail and, in the case of the annual and quarterly
financial statements provided in accordance with subsections (a) and (b) above,
in accordance with GAAP applied consistently throughout the periods reflected
therein (except as approved by such accountants or Authorized Signatory, as the
case may be, and disclosed therein) and further accompanied by a description of,
and an estimation of the effect on the financial statements on account of, a
change in the application of accounting principles as provided in Section 1.3.
5.2 CERTIFICATES; OTHER INFORMATION.
Furnish to the Administrative Agent and each of the Lenders:
(a) ACCOUNTANT'S CERTIFICATE. Concurrently with the delivery
of the financial statements referred to in Section 5.1(a) above, a
certificate of the independent certified public accountants reporting
on such financial statements stating that in making the
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examination necessary therefor no knowledge was obtained of any Default
or Event of Default, except as specified in such certificate;
(b) COMPLIANCE CERTIFICATE. Concurrently with the delivery of
the financial statements referred to in Sections 5.1(a) and 5.1(b)
above, a certificate of an Authorized Signatory stating that, to the
best of such Authorized Signatory's knowledge, the Borrowers and the
Subsidiaries during such period observed or performed in all material
respects all of their covenants and other agreements, and satisfied in
all material respects every material condition, contained in this
Agreement to be observed, performed or satisfied by them, and that such
Authorized Signatory has obtained no knowledge of any Default or Event
of Default except as specified in such certificate and such certificate
shall include the calculations required to indicate compliance with
Section 5.9 and information as to Restricted Payments made in the
applicable period in accordance with Section 6.11;
(c) OTHER INFORMATION. Promptly, such additional financial and
other information as the Administrative Agent, on behalf of any Lender,
may from time to time reasonably request.
5.3 PAYMENT OF OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, in accordance with industry practice
(subject, where applicable, to specified grace periods) all obligations in
excess of $1,000,000 of whatever nature and any additional costs that are
imposed as a result of any failure to so pay, discharge or otherwise satisfy
such obligations, except when the amount or validity of such obligations and
costs is currently being contested in good faith by appropriate proceedings and
reserves, if applicable, in conformity with GAAP with respect thereto have been
provided on the books of the Borrowers or their Subsidiaries, as the case may
be.
5.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Preserve, renew and keep in full force and effect its company,
corporate or partnership existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business; comply with all Contractual Obligations and
Requirements of Law applicable to it except to the extent that failure to comply
therewith would not, in the aggregate, have a Material Adverse Effect.
5.5 MAINTENANCE OF PROPERTY; INSURANCE.
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear and
obsolescence excepted); maintain with financially sound and reputable insurance
companies insurance on all its material property in at least such amounts and
against at least such risks as are usually insured against in the same
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general area by companies engaged in the same or a similar business; and furnish
to the Administrative Agent, upon written request, full information as to the
insurance carried.
5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all applicable Requirements of Law
shall be made of all dealings and transactions in relation to its businesses and
activities; and permit, during regular business hours and upon reasonable notice
by the Administrative Agent or any Lender (unless a Default or Event of Default
shall have occurred and be continuing, (i) any one inspection in a twelve-month
period by the Administrative Agent to be at the Borrowers' expense, and (ii) any
such inspection by any Lender to be at such Lender's expense), to visit and
inspect any of its properties and examine and make abstracts from any of its
books and records (other than materials protected by the attorney-client
privilege and materials which the Borrowers may not disclose without violation
of a confidentiality obligation binding upon it) at any reasonable time and as
often as may reasonably be desired, and to discuss the business, operations,
properties and financial and other condition of the Borrowers and their
Subsidiaries with officers and employees of the Borrowers and their Subsidiaries
and with its independent certified public accountants.
5.7 CERTAIN NOTICES.
Give notice to the Administrative Agent (which shall promptly transmit
such notice to each Lender) of:
(a) within five Business Days after either of the Borrowers
knows of the occurrence of any material Default or Event of Default;
(b) promptly, any default or event of default under any
Contractual Obligation of the Borrowers or any Subsidiary which would
reasonably be expected to have a Material Adverse Effect;
(c) promptly, any litigation, or any investigation or
proceeding known to either of the Borrowers, affecting either of the
Borrowers or any Subsidiary which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect;
(d) as soon as possible and in any event within 30 days after
either of the Borrowers knows: (i) the occurrence of any Reportable
Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC
or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or a
Borrower, any Subsidiary or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan; and
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(e) promptly, any other development or event which would
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Authorized Signatory setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
5.8 ENVIRONMENTAL LAWS.
(a) Comply in all material respects with, and take reasonable
actions to ensure compliance in all material respects by all tenants
and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in all material respects with and maintain, and take
reasonable actions to ensure that all tenants and subtenants obtain and
comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required
by applicable Environmental Laws except to the extent that failure to
do so would not reasonably be expected to have a Material Adverse
Effect;
(b) Conduct and complete any investigations, studies, sampling
and testing, and any remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate actions and the failure to
do or the pendency of such actions would not reasonably be expected to
have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective employees, agents, officers
and directors, from and against any and all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable
to the operations of the Borrowers, their Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the
extent that any of the foregoing arise out of the misconduct of the
party seeking indemnification therefor. The agreements in this
paragraph shall survive repayment of the Notes and all other amounts
payable hereunder.
5.9 FINANCIAL COVENANTS.
(a) LEVERAGE RATIO. The Borrowers will maintain, as of the end
of each fiscal quarter, a Leverage Ratio of not greater than 3.5 to
1.0.
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(b) INTEREST COVERAGE RATIO. The Borrowers will maintain, as
of the end of each fiscal quarter, an Interest Coverage Ratio of
greater than 2.5 to 1.0.
5.10 COVENANTS REGARDING PATENTS, TRADEMARKS AND COPYRIGHTS.
(a) The Borrowers shall notify the Administrative Agent
promptly if it knows or has reason to know that any application,
letters patent or registration relating to any Patent, Trademark or
Copyright which is material to the business of the Borrowers and their
Subsidiaries taken as a whole may become abandoned, or of any material
adverse determination or development (including, without limitation,
the institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office or any
court) regarding the Borrowers' or such other Subsidiary's ownership of
any Patent, Trademark or Copyright which is material to the business of
the Borrowers and their Subsidiaries taken as a whole, its right to
patent or register the same, or to enforce, keep and maintain the same.
(b) The Borrowers will take all necessary actions, including,
without limitation, in any proceeding before the United States Patent
and Trademark Office or the United States Copyright Office, to maintain
each letters patent for the Patents or registration of the Trademarks
and Copyrights which are material to the business of the Borrowers and
their Subsidiaries taken as a whole, including, without limitation,
payment of maintenance fees, filing of applications for renewal,
affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings.
(c) In the event that any Trademark, Copyright or Patent is
infringed, misappropriated or diluted by a third party, the Borrowers
shall notify the Administrative Agent promptly after it learns thereof
and shall, unless the Borrowers or the relevant Subsidiary, as the case
may be, shall reasonably determine that such Trademark, Copyright or
Patent is not material to the business of the Borrowers and their
Subsidiaries taken as a whole, promptly xxx for infringement,
misappropriation or dilution and to recover any and all damages for
such infringement, misappropriation or dilution, and take such other
actions as the Borrowers or such Subsidiary, as the case may be, shall
reasonably deem appropriate under the circumstances to protect such
Trademark, Copyright or Patent.
5.11 FEES, ETC.
Pay to the Agent the fees and comply with the other agreements provided
for in the Commitment Letter.
5.12 SUBSIDIARIES.
In the event either of the Borrowers shall acquire or otherwise obtain
any Subsidiary on or after the Closing Date, such Borrower shall promptly notify
the Administrative Agent of the
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existence of such Subsidiary, shall provide the Administrative Agent with the
information required by Section 3.12 with respect thereto and shall cause such
Subsidiary to enter into and deliver to the Administrative Agent on behalf of
the Lenders a Joinder Agreement in the form of SCHEDULE 5.12 attached hereto. In
connection therewith, such Borrower shall cause the Subsidiary to deliver to the
Administrative Agent on behalf of the Lenders certified organizational
documents, evidences of authority and opinion letters customary and usual for
transactions of the type contemplated by this Agreement and to take such other
action in connection therewith as the Administrative Agent may reasonably
require.
5.13 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each of the Borrowers will, and will cause each of its Subsidiaries to,
pay and discharge all taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its properties,
before they shall become delinquent; PROVIDED, HOWEVER, that the Borrowers and
their Subsidiaries shall not be required to pay any such tax, assessment, charge
or levy which is being contested in good faith by appropriate proceedings and as
to which adequate accruals therefor have been established in accordance with
GAAP, unless the failure to make any such payment (a) would give rise to an
immediate right to foreclose on a Lien securing such amounts or (b) would have a
Material Adverse Effect.
5.14 YEAR 2000 COMPATIBILITY.
The Borrowers will take as soon as reasonably practicable all actions
reasonably necessary to assure that the Credit Parties' computer based systems
are able to operate with respect to and effectively process data which includes
dates on and after January 1, 2000. At the request of the Administrative Agent,
the Credit Parties shall provide reasonable assurances satisfactory to the
Administrative Agent of the Credit Parties' Year 2000 compatibility.
SECTION 6. NEGATIVE COVENANTS
The Borrowers hereby covenant and agree that on the Closing Date, and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Note remains outstanding and unpaid and the Loans, together
with interest, Commitment Fees and all other amounts owing to the Administrative
Agent or any Lender hereunder, are paid in full.
6.1 INDEBTEDNESS.
The Borrowers will not, nor will they permit any Subsidiary to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Agreement and
the other Credit Documents;
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(b) other Indebtedness existing as of the Closing Date as set
forth in SCHEDULE 6.1(B)) and renewals, refinancings or extensions
thereof in a principal amount not in excess of that outstanding as of
the date of such renewal, refinancing or extension;
(c) unsecured intercompany Indebtedness among the Borrowers
and the Guarantors;
(d) Capital Leases and purchase money indebtedness for the
financing of equipment which, in the aggregate principal amount at any
time, do not exceed $5,000,000;
(e) other unsecured Indebtedness, so long no Default or Event
of Default then exists or would exist after giving effect to the
incurrence thereof; PROVIDED, HOWEVER, that no such Indebtedness shall
be incurred if the aggregate amount of all such Indebtedness
outstanding would exceed $20,000,000 unless (A) the Borrowers
demonstrate to the reasonable satisfaction of the Majority Lenders that
the Borrowers will be in pro forma compliance with all of the terms and
provisions of this Agreement after giving effect to the incurrence
thereof, and (B) the terms and provisions of such Indebtedness are
satisfactory to the Majority Lenders;
(f) obligations of the Borrowers or any Subsidiary in respect
of Interest Protection Agreements entered into in order to manage
existing or anticipated interest rate or exchange rate risks and not
for speculative purposes;
(g) Guaranty Obligations permitted by Section 6.3;
(h) Indebtedness of any Person that becomes a Subsidiary of
either Borrower after the date hereof pursuant to a Permitted
Acquisition, PROVIDED that such Indebtedness was not incurred solely in
contemplation of such Person becoming a Subsidiary of such Borrower;
and
(i) Indebtedness of the Borrowers to the former shareholders
of DM Publishing relating to contingent payment obligations as contemplated by
the Combination Agreement.
6.2 LIENS.
The Borrowers will not, nor will they permit any Subsidiary to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of their respective property or assets of any kind (whether real or personal,
tangible or intangible), whether now owned or hereafter acquired, except for
Permitted Liens.
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6.3 GUARANTY OBLIGATIONS.
The Borrowers will not, nor will they permit any Subsidiary to, enter
into or otherwise become or be liable in respect of any Guaranty Obligations
(excluding specifically therefrom endorsements in the ordinary course of
business of negotiable instruments for deposit or collection) other than (i)
those in favor of the Lenders in connection herewith, (ii) Guaranty Obligations
by the Borrowers or their Subsidiaries of other Indebtedness permitted under
Section 6.1 (except, as regards Indebtedness under subsection (b) thereof, only
if and to the extent such Indebtedness was guaranteed on the Closing Date), and
(iii) other unsecured Guaranty Obligations which do not exceed $10,000,000 at
any time outstanding.
6.4 LINES OF BUSINESS.
The Borrowers will not, nor will they permit any of their Subsidiaries
to, alter their line or lines of business activity if as a result thereof the
Borrowers and their Subsidiaries would not be predominantly engaged in the
business of (a) the publishing of business magazines, (b) the dissemination of
market research and data service, (c) the provision of electronically
distributed subscription information services, (d) the publication of business
newsletters, (e) the provision of electronic newsletter content services (f) the
provision of the marketing programs, (g) printing magazines and other
publications, (h) operating trade shows and conferences and (i) the providing of
all updated, functional extensions and additional lines of business reasonably
compatible with and related to (a) - (h) above.
6.5 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC.
The Borrowers will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, sell,
transfer, lease or otherwise dispose of all or any substantial part of
its property or assets outside of the ordinary course of business or
agree to do so at a future time except the following, without
duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition
of property or assets not in the ordinary course of business
(other than Specified Sales), where and to the extent that
they are the result of a Recovery Event or otherwise and the
net proceeds therefrom are used to repair or replace damaged
property or to purchase or otherwise acquire new assets or
property provided that such purchase or acquisition is
committed to within 90 days of receipt of the net proceeds and
such purchase or acquisition is consummated within 180 days of
such receipt;
(iii) the sale, transfer, lease or other disposition
of property or assets to the Borrowers or any Guarantor; and
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(iv) the sale of the stock or all or substantially
all of the assets of Xxxxxx & Xxxxx/Peneco, Inc.
As used herein, "SUBSTANTIAL PART" shall mean business, property or assets which
have contributed
(x) 20% or more, in any instance, or
(y) 30% or more, when aggregated with all other such
sales or dispositions which have occurred within a period of
one year,
of Consolidated Adjusted EBITDA for the four (4) consecutive fiscal quarters
most recently ending prior to the date thereof; or
(b) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) all or any substantial
part of the property or assets of any Person (other than purchases or
other acquisitions of inventory, leases, materials, property and
equipment in the ordinary course of business, except as otherwise
limited or prohibited herein), or enter into any merger or
consolidation, except for (i) investments or acquisitions permitted
pursuant to Section 6.6, (ii) the acquisition of the Acquired Assets,
(iii) acquisitions of types of businesses permitted to be engaged in by
the Borrowers and their Subsidiaries pursuant to Section 6.4 (the
"PERMITTED ACQUISITIONS") so long as with respect to the acquisition of
each such business, (A) no Default or Event of Default then exists or
would exist after giving effect thereto and (B) the Borrowers
demonstrate to the reasonable satisfaction of the Majority Lenders that
the Borrowers will be in pro forma compliance with all of the terms and
provisions of this Agreement after giving effect thereto, (iv) the
merger or consolidation of any Subsidiary into a Borrower or any
Subsidiary, or a sale, transfer or lease of all or a substantial part
of the properties of any Subsidiary (at fair value) to a Borrower or
any Subsidiary and (v) the merger of any Person into a Borrower or any
Subsidiary, PROVIDED that such Borrower or any Subsidiary shall be the
surviving corporation, and in any such case no Default or Event of
Default would exist after giving effect thereto.
6.6 ADVANCES, INVESTMENTS AND LOANS.
The Borrowers will not, nor will they permit any Subsidiary to, lend
money or extend credit or make advances to any Person, or purchase or acquire
any stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any Person except for Permitted Investments.
6.7 TRANSACTIONS WITH AFFILIATES.
Except (a) as permitted in subsection (vi) of the definition of
Permitted Investments, (b) for the payments and issuances permitted by Section
6.8 and (c) for the payments permitted by
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Section 6.11, the Borrowers will not, nor will they permit any Subsidiary to,
enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder or
Affiliate other than on terms and conditions substantially as favorable as would
be obtainable in a comparable arm's-length transaction with a Person other than
an officer, director, shareholder or Affiliate.
6.8 OWNERSHIP OF SUBSIDIARIES.
The Borrowers will not, nor will they permit any Subsidiary to, create,
form or acquire a Subsidiary other than any Subsidiary acquired or formed to
acquire assets in connection with any Permitted Acquisition, provided such
Subsidiary guarantees all of the Obligations of the Borrowers hereunder on terms
reasonably satisfactory to the Administrative Agent. Further, the Borrowers will
not, nor will they permit any of its Subsidiaries to, issue, sell, transfer,
pledge or otherwise dispose of any partnership interests, limited liability
company interest, shares of capital stock or other equity or ownership interests
("EQUITY INTERESTS") in themselves or in any of their Subsidiaries, except (a)
Equity Interests that are issued, sold or transferred to either of the Borrowers
or a wholly-owned Subsidiary of a Borrower, (b) in connection with a transaction
permitted under Section 6.5 and (c) in connection with the Stock Distribution.
6.9 FISCAL YEAR.
The Borrowers will not, nor will they permit any Subsidiary to, change
its fiscal year other than a change in fiscal year by any Subsidiary to match
the fiscal year of the Borrowers.
6.10 PREPAYMENTS OF INDEBTEDNESS, ETC.
Neither the Borrowers nor any of their Subsidiaries will (a) after the
issuance thereof, amend or modify (or permit the amendment or modification of),
if materially adverse to the interests of the Lenders (including, without
limitation, any acceleration or shortening of amortization of principal thereof,
or modification of the terms of subordination relating thereto), any of the
terms of any Consolidated Total Funded Debt (other than any Indebtedness
permitted by Section 6.1(e)), or (b) make (or give any notice with respect
thereto) any voluntary or optional payment or prepayment or redemption or
acquisition for value of (including without limitation, by way of depositing
money or securities with the trustee with respect thereto before due for the
purpose of paying when due) or exchange of any Consolidated Total Funded Debt
(other than any Indebtedness permitted by Section 6.1(e)).
6.11 RESTRICTED PAYMENTS.
The Borrowers will not, nor will they permit any of its Subsidiaries
which are not wholly-owned to, make any Restricted Payment; PROVIDED, HOWEVER,
(a) any Subsidiary of a Borrower may make Restricted Payments to such Borrower,
(b) a Borrower may pay customary and reasonable fees to Affiliates of such
Borrower for consulting and other financial and advisory services provided by
such Affiliates, (c) Penton USA may pay ordinary dividends on its common
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stock to its stockholders so long as no Default or Event of Default hereunder
exists immediately prior to or after the payment of any such dividend and (d)
the Borrowers may make the contingent payments contemplated by the Combination
Agreement and the Contingent Convertible Loan Notes and the Vendor's Convertible
Loan Note listed on SCHEDULE 6.1(B).
6.12 PARTNERSHIP AND CORPORATE DOCUMENTS.
The Borrowers will not, nor will they permit any of their Subsidiaries
to, amend or otherwise modify their articles of limited partnership, limited
liability limited partnership, incorporation, limited liability company or other
similar organizational or charter document, or their limited partnership
agreement, limited liability limited partnership agreement, limited liability
company agreement, bylaws, operating agreement or other similar governing
document or the Combination Agreement in a manner which is adverse to the
interest of the Lenders, without the prior written consent of the Administrative
Agent and the Majority Lenders, which consent will not be unreasonably withheld.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) (i) The Borrowers shall fail to pay any principal on any
Note when due in accordance with the terms thereof or hereof; or (ii)
the Borrowers shall fail to pay any interest on any Note or any fee or
other amount payable hereunder when due in accordance with the terms
thereof or hereof and such failure shall continue unremedied for five
(5) Business Days; or
(b) Any representation or warranty made by the Borrowers or
any Subsidiary of the Borrowers herein or in any of the other Credit
Documents or which is contained in any certificate, document or
financial or other statement prepared and furnished by the Borrowers or
any of the Borrowers' Subsidiaries at any time under or in connection
with this Agreement shall prove to have been incorrect, false or
misleading in any material respect on or as of the date made or deemed
made; or
(c) The Borrowers shall
(i) default in the due performance or observance of
Section 5.7(a), Section 5.9, or Sections 6.1 through 6.13 or
(ii) default in any material respect in the
observance or performance of any other term, covenant or
agreement contained in this Agreement (other than as described
in Sections 7(a) or 7(c)(i) above) or any of the other Credit
Documents, and such default shall continue unremedied for a
period of 15 days or more after the earlier of any officer
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of the Borrowers becoming aware of such default or the receipt
by the Borrowers of written notice from the Administrative
Agent thereof; or
(d) The Borrowers or any of the Borrowers' Subsidiaries shall
(i) default in any payment of principal of or interest on any
Indebtedness (other than the Notes) in a principal amount outstanding
of at least $1,000,000 in the aggregate for the Borrowers and the
Borrowers' Subsidiaries or in the payment of any matured Guarantee
Obligation in a principal amount outstanding of at least $1,000,000 in
the aggregate for the Borrowers and the Borrowers' Subsidiaries beyond
the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness or Guarantee Obligation was created; or
(ii) default in the observance or performance of any other agreement or
condition relating to any Indebtedness in a principal amount
outstanding of at least $1,000,000 in the aggregate for the Borrowers
and the Borrowers' Subsidiaries or Guarantee Obligation in a principal
amount outstanding of at least $1,000,000 in the aggregate for the
Borrowers and the Borrowers' Subsidiaries or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries
of such Guarantee Obligation (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due prior to
its stated maturity or such Guarantee Obligation to become payable; or
(e) (i) The Borrowers or any of the Borrowers' Subsidiaries
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrowers or any of the
Borrowers' Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the
Borrowers or any of the Borrowers' Subsidiaries any case, proceeding or
other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against the
Borrowers or any of the Borrowers' Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Borrowers or
any of the Borrowers' Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any
of the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrowers or any of the
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Borrowers' Subsidiaries shall admit in writing its inability to, pay
its debts as they become due; or
(f) One or more judgments or decrees shall be entered against
the Borrowers or any of the Borrowers' Subsidiaries involving in the
aggregate a liability (to the extent not paid when due or covered by
insurance) of $1,000,000 or more and all such judgments or decrees
shall not have been paid and satisfied, vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(g) (i) The Borrowers, any Subsidiary of the Borrowers or any
Commonly Controlled Entity shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, other than a transaction for which a statutory
exemption is available or an administrative exemption has been
obtained, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect
to any Single Employer Plan or any Lien in favor of the PBGC or a
Single Employer Plan shall arise on the assets of the Parent, the
Borrowers or any of the Borrowers' Subsidiaries or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a Trustee is, in the reasonable opinion of the Majority
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, or (v) the Parent, the Borrowers or any
of the Borrowers' Subsidiaries or any Commonly Controlled Entity shall,
or in the reasonable opinion of the Majority Lenders is likely to,
incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, any Multiemployer Plan; and in each
case in clauses (i) through (v) above, such event or condition,
together with all other such events or conditions, if any, could have a
Material Adverse Effect; or
(h) Any other Credit Document shall fail to be in full force
and effect or to give the Administrative Agent and/or the Lenders the
rights, powers and privileges purported to be created thereby and such
failure shall have a material adverse effect on the rights and remedies
of the Administrative Agent or the Lenders thereunder; or
(i) A Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (e) above, automatically the Commitments shall immediately
terminate and the Loans (with accrued interest thereon), and all other amounts
under the Credit Documents shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the written consent of the Majority Lenders, the
Administrative Agent may, or upon the written request of the Majority Lenders,
the Administrative Agent shall, by notice to the Borrowers declare the
Commitments to be
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terminated forthwith, whereupon the Commitments shall immediately terminate; and
(ii) with the written consent of the Majority Lenders, the Administrative Agent
may, or upon the written request of the Majority Lenders, the Administrative
Agent shall, by notice of default to the Borrowers, declare the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the Notes to be due and payable forthwith whereupon the same shall immediately
become due and payable. Except as expressly provided above in this Section 7,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 APPOINTMENT.
Each Lender hereby irrevocably designates and appoints First Union
National Bank as the Administrative Agent of such Lender under this Agreement,
and each such Lender irrevocably authorizes First Union National Bank, as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein and in the other
Credit Documents, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
8.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this
Agreement by or through agents or attorneys-in-fact and shall be entitled to
rely on advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care. Without
limiting the foregoing, the Administrative Agent may appoint an affiliate as its
agent to perform the functions of the Administrative Agent hereunder relating to
the advancing of funds to the Borrowers and distribution of funds to the Lenders
and to perform such other related functions of the Administrative Agent
hereunder as are reasonably incidental to such functions. No such appointment
shall relieve the Administrative Agent of its responsibilities hereunder.
8.3 EXCULPATORY PROVISIONS.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or willful misconduct) or (b) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made by the
Borrowers or
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any officer thereof contained in this Agreement or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
any of the Credit Documents or for any failure of the Borrowers to perform their
Obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance by the Borrowers of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
the Borrowers.
8.4 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation reasonably believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrowers), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless (a) a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent and (b)
the Administrative Agent shall have received the written agreement of such
assignee to be bound hereby as fully and to the same extent as if such assignee
were an original Lender party hereto, in each case in form satisfactory to the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred it by reason of
taking or continuing to take any such action. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under any
of the Credit Documents in accordance with a request of the Majority Lenders,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Notes.
8.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrowers
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to each of the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
directed by the Majority Lenders, including, without limitation, exercise of
remedies and initiation of litigation; PROVIDED, HOWEVER, that unless and until
the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking
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such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representation or warranty to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Borrowers, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrowers. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrowers which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
8.7 INDEMNIFICATION.
The Lenders agree to indemnify the Administrative Agent in its capacity
hereunder (to the extent not reimbursed by the Borrowers and without limiting
the obligation of the Borrowers to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought
under this subsection, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of any Credit Document or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; PROVIDED, HOWEVER, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting from the Administrative Agent's gross negligence or
willful misconduct. The agreements in this
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subsection shall survive the termination of this Agreement and payment of the
Notes and all other amounts payable hereunder.
8.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrowers as
though the Administrative Agent were not the Administrative Agent hereunder.
With respect to its Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under this Agreement
as any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
8.9 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign or be removed as Administrative
Agent upon 30 days' prior notice to the Borrowers and the Lenders. The
Administrative Agent may be removed by the written consent of the Majority
Lenders. If the Administrative Agent shall resign or be removed as
Administrative Agent under this Agreement and the Notes, then the Majority
Lenders shall appoint from among the Lenders a successor agent for the Lenders,
which successor agent shall be approved by the Borrowers, or if the Majority
Lenders cannot agree on a successor within 30 days from the notice of
resignation by the Administrative Agent, the Administrative Agent, with the
approval of the Borrowers, may appoint a bank or trust company with capital and
surplus of at least $500,000,000 as successor Administrative Agent within 30
days thereafter, whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Notes. After any retiring Administrative
Agent's resignation or renewal as Administrative Agent, the provisions of this
subsection shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement. Resignation
by the Administrative Agent shall become effective upon appointment of, and
acceptance by, a successor Administrative Agent, or the passage of the
applicable periods without appointment of a successor.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS, WAIVERS AND RELEASE OF COLLATERAL.
Neither this Agreement, nor any of the Notes, nor any of the other
Credit Documents, nor any terms hereof or thereof may be amended, supplemented,
waived or modified except in accordance with the provisions of this subsection.
The Majority Lenders affected thereby may,
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or, with the written consent of the Majority Lenders affected thereby, the
Administrative Agent may, from time to time, (a) enter into with the Borrowers
written amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Agreement or the
other Credit Documents or (b) waive, on such terms and conditions as the
Majority Lenders may specify in such instrument, any of the requirements of this
Agreement or the other Credit Documents or any Default or Event of Default and
its consequences; PROVIDED, HOWEVER, that no such waiver and no such amendment,
waiver, supplement, modification or release shall (i) reduce the amount or
extend the scheduled final date of maturity of any Loan or Note or any
installment thereon, or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or increase the
amount or extend the expiration date of any Lender's Commitment, in each case
without the written consent of each Lender directly affected thereby, or (ii)
amend, modify or waive any provision of this subsection or reduce the percentage
specified in the definition of Majority Lenders, or consent to the assignment or
transfer by the Borrowers of any of its rights and obligations under this
Agreement, in each case without the written consent of all the Lenders, or (iii)
amend, modify or waive any provision of Section 8 without the written consent of
the then Administrative Agent, or (iv) release all or substantially all of the
collateral, if any, or any Guarantor, without the written consent of all of the
Lenders except to the extent such releases are provided for in this Agreement or
the other Credit Documents, including, without limitation, pursuant to Section
6.5(a) hereof. Any such waiver, any such amendment, supplement or modification
and any such release shall apply equally to each of the Lenders and shall be
binding upon the Borrowers, the Lenders, the Administrative Agent and all future
holders of the Notes. In the case of any waiver, the Borrowers, the Lenders and
the Administrative Agent shall be restored to their former position and rights
hereunder and under the outstanding Loans and Notes and other Credit Documents,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
9.2 NOTICES.
Except as otherwise provided in Section 2, all notices, requests and
demands to or upon the respective parties hereto to be effective shall be in
writing (including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made (a) when delivered by
hand, (b) when transmitted via telecopy (or other facsimile device) on a
Business Day between the hours of 10:00 A.M. and 7:00 P.M. (EST or EDT, as
appropriate) (or on the following Business Day if sent after 7:00 P.M.) to the
number set out herein, (c) the day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (d)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case, addressed as follows in the
case of the Borrowers and the Administrative Agent, and as set forth on SCHEDULE
2.1(A) in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes:
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The Borrowers: Penton Media, Inc.
Penton Media Limited
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxx XxXxxxxx, CFO
Telecopier: (000) 000-0000
Telephone: (216) 000- 0000
With a copy to: Preston Vice, SVP and Secretary
Penton Media, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (216) 000- 0000
The Administrative
Agent: First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx, Agency Services
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy (other than funding notices) to:
First Union Capital Markets Group
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
9.3 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
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9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Notes and the
making of the Loans, PROVIDED that all such representations and warranties shall
terminate on the date upon which the Commitments have been terminated and all
amounts owing hereunder and under any Notes have been paid in full.
9.5 PAYMENT OF EXPENSES AND TAXES.
The Borrowers agree (a) to pay or reimburse the Administrative Agent
for all its reasonable out-of-pocket costs and expenses incurred in connection
with the preparation and execution of, and any amendment, supplement or
modification to, the Credit Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, together with the reasonable fees
and disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes and any such other documents, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and to the Lenders (including reasonable allocated costs of
in-house legal counsel), and (c) on demand, to pay, indemnify, and hold each
Lender and the Administrative Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, the Credit Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent and their affiliates harmless from and against, any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of the Credit Documents and any such other Documents and the use, or proposed
use, of proceeds of the Loans (all the foregoing, collectively, the "INDEMNIFIED
LIABILITIES"); PROVIDED, HOWEVER, that the Borrowers shall not have any
obligation hereunder to the Administrative Agent or any Lender with respect to
indemnified liabilities arising from (i) the gross negligence or willful
misconduct of the Administrative Agent or any such Lender, (ii) legal
proceedings commenced against the Administrative Agent or any such Lender by any
security holder or creditor thereof arising out of and based upon rights
afforded such security holder or creditor solely in its capacity as such, (iii)
legal proceedings commenced against the Administrative Agent or any Lender by
any other Lender or the Administrative Agent or its participants or (iv) a
breach of any of the Credit Documents by the Lenders. The agreements in this
subsection shall survive repayment of the Loans, Notes and all other amounts
payable hereunder.
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9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING LENDERS.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrowers, the Lenders, the Administrative Agent, all
future holders of the Notes and their respective successors and
assigns, except that the Borrowers may not assign or transfer any of
its rights or obligations under this Agreement or the other Credit
Documents without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time
sell to one or more banks or other entities ("PARTICIPANTS")
participating interests in any Loan owing to such Lender, any Note held
by such Lender, any Commitment of such Lender, or any other interest of
such Lender hereunder, PROVIDED, HOWEVER, that in the case of any
Participant that is not a bank or savings and loan association, no
transaction described in this Section 9.6(b) may be consummated until
such Participant demonstrates to the reasonable satisfaction of the
Borrowers that such transaction will not constitute a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code. In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender
shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Note for all purposes under
this Agreement, and the Borrowers and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. No
Lender shall transfer or grant any participation under which the
Participant shall have rights to approve any amendment to or waiver of
this Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) extend the final maturity of any Loan or
Note in which such Participant is participating, or reduce the stated
rate or extend the time of payment of interest or Fees thereon (except
in connection with a waiver of interest at the increased post-default
rate) or reduce the principal amount thereof, or increase the amount of
the Participant's participation over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default
shall not constitute a change in the terms of such participation, and
that an increase in any Commitment or Loan shall be permitted without
consent of any Participant if the Participant's participation is not
increased as a result thereof), (ii) except as otherwise expressly
provided in a Credit Document, release all or substantially all of the
collateral, if any, or (iii) consent to the assignment or transfer by
the Borrowers of any of its rights and obligations under this
Agreement. In the case of any such participation, the Participant shall
not have any rights under this Agreement or any of the other Credit
Documents (the Participant's rights against such Lender in respect of
such participation to be those set forth in the agreement executed by
such Lender in favor of the Participant relating thereto) and all
amounts payable by the Borrowers hereunder shall be determined as if
such Lender had not sold such participation, PROVIDED that each
Participant shall be entitled to the benefits of Sections 2.13, 2.14
and 9.5 with respect to its participation in the Commitments and the
Loans outstanding from time to time; PROVIDED, that no
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Participant shall be entitled to receive any greater amount pursuant to
such subsections than the transferor Lender would have been entitled to
receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time
sell or assign to any Lender or any affiliate thereof and, with the
consent of the Administrative Agent, and, so long as no Event of
Default has occurred and is continuing, with the consent of the
Borrowers (in each case, which consent shall not be unreasonably
withheld), to one or more additional banks or financial institutions
("PURCHASING LENDERS"), all or any part of its rights and obligations
under this Agreement and the Notes in minimum amounts of $5,000,000 and
minimum increments of $1,000,000 in excess thereof (or, if less, the
entire amount of such Lender's obligations) if the Purchasing Lender is
not a Lender hereunder, or with no minimum amount if the Purchasing
Lender is a Lender hereunder, pursuant to a Commitment Transfer
Supplement, executed by such Purchasing Lender, such transferor Lender
(and, in the case of a Purchasing Lender that is not then a Lender or
an affiliate thereof, by the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, by the Borrowers), and
delivered to the Administrative Agent for its acceptance and recording
in the Register; provided that at no time shall there be more than a
total of five (5) Lenders. Each such assignment must be of a constant,
not varying, percentage of all of such Lender's rights and obligations
hereunder. Upon such execution, delivery, acceptance and recording,
from and after the Transfer Effective Date specified in such Commitment
Transfer Supplement, (x) the Purchasing Lender thereunder shall be a
party hereto and, to the extent provided in such Commitment Transfer
Supplement, have the rights and obligations of a Lender hereunder with
a Commitment as set forth therein, and (y) the transferor Lender
thereunder shall, to the extent provided in such Commitment Transfer
Supplement, be released from its obligations under this Agreement (and,
in the case of a Commitment Transfer Supplement covering all or the
remaining portion of a transferor Lender's rights and obligations under
this Agreement, such transferor Lender shall cease to be a party
hereto). Such Commitment Transfer Supplement shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender and the resulting
adjustment of Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of
such transferor Lender under this Agreement and the Notes. On or prior
to the Transfer Effective Date specified in such Commitment Transfer
Supplement, the Borrowers shall execute and deliver to the
Administrative Agent in exchange for the Note delivered to the
Administrative Agent pursuant to such Commitment Transfer Supplement a
new Note to the order of such Purchasing Lender in an amount equal to
the Commitment assumed by it pursuant to such Commitment Transfer
Supplement and, unless the transferor Lender has not retained a
Commitment hereunder, a new Note to the order of the transferor Lender
in an amount equal to the Commitment retained by it hereunder. Such new
Note shall be dated the Closing Date and shall otherwise be in the form
of the Note replaced
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thereby. The Note surrendered by the transferor Lender shall be
returned by the Administrative Agent to the Borrowers marked
"canceled".
(d) The Administrative Agent shall maintain at its address
referred to in Section 9.2 a copy of each Commitment Transfer
Supplement delivered to it and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrowers, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in
the Register as the owner of the Loan recorded therein for all purposes
of this Agreement. The Register shall be available for inspection by
the Borrowers or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement
executed by a transferor Lender and a Purchasing Lender (and, in the
case of a Purchasing Lender that is not then a Lender or an affiliate
thereof, by the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, by the Borrowers) together with
payment to the Administrative Agent (by the transferor Lender or the
Purchasing Lender, as agreed between them) of a registration and
processing fee of $3,000 for each Purchasing Lender listed in such
Commitment Transfer Supplement, and the Notes subject to such
Commitment Transfer Supplement, the Administrative Agent shall (i)
accept such Commitment Transfer Supplement, (ii) record the information
contained therein in the Register and (iii) give prompt notice of such
acceptance and recordation to the Lenders and the Borrowers.
(f) The Borrowers authorize each Lender to disclose to any
Participant or Purchasing Lender (each, a "TRANSFEREE") and any
prospective Transferee any and all financial information in such
Lender's possession concerning the Borrowers and their Affiliates which
has been delivered to such Lender by or on behalf of the Borrowers
pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the Borrowers in connection with such Lender's
credit evaluation of the Borrowers and its Affiliates prior to becoming
a party to this Agreement; in each case subject to Section 9.15.
(g) At the time of each assignment pursuant to this Section
9.6 to a Person which is not already a Lender hereunder and which is
not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Lender shall provide to the Borrowers and the
Administrative Agent the appropriate Internal Revenue Service Forms
described in Section 2.13.
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any of its rights under this Agreement (including, without
limitation, any right to payment of
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principal and interest under any Note) to any Federal Reserve Bank in
accordance with applicable laws.
9.7 ADJUSTMENTS; SET-OFF.
(a) Each Lender agrees that if any Lender (a "BENEFITTED
LENDER") shall at any time receive any payment of all or part of its
Loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in clause (e) of
Section 7, or otherwise) in a greater proportion than any such payment
to or collateral received by any other Lender, if any, in respect of
such other Lender's Loans, or interest thereon, such benefitted Lender
shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Lender to share
the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; PROVIDED, HOWEVER, that if all or any portion
of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but
without interest. The Borrowers agree that each Lender so purchasing a
portion of another Lender's Loans may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such
portion.
(b) In addition to any rights and remedies of the Lenders
provided by law (including, without limitation, other rights of
set-off), each Lender shall have the right, without prior notice to the
Borrowers, any such notice being expressly waived by the Borrowers to
the extent permitted by applicable law, upon the occurrence of any
Event of Default, to setoff and appropriate and apply any and all
deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such
Lender or any branch or agency thereof to or for the credit or the
account of the Borrowers, or any part thereof in such amounts as such
Lender may elect, against and on account of the obligations and
liabilities of the Borrowers to such Lender hereunder and claims of
every nature and description of such Lender against the Borrowers, in
any currency, whether arising hereunder, under the Notes or under any
documents contemplated by or referred to herein or therein, as such
Lender may elect, whether or not such Lender has made any demand for
payment and although such obligations, liabilities and claims may be
contingent or unmatured. The aforesaid right of set-off may be
exercised by such Lender against the Borrowers or against any trustee
in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of
the Borrowers, or against anyone else claiming through or against the
Borrowers or any such trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment
or attachment creditor, notwithstanding the fact that such right of
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set-off shall not have been exercised by such Lender prior to the
occurrence of any Event of Default. Each Lender agrees promptly to
notify the Borrowers and the Administrative Agent after any such
set-off and application made by such Lender; PROVIDED, HOWEVER, that
the failure to give such notice shall not affect the validity of such
set-off and application.
9.8 TABLE OF CONTENTS AND SECTION HEADINGS.
The table of contents and the Section and subsection headings herein
are intended for convenience only and shall be ignored in construing this
Agreement.
9.9 COUNTERPARTS.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged with
the Borrowers and the Administrative Agent.
9.10 SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.11 INTEGRATION.
This Agreement, the Notes and the other Credit Documents represent the
agreement of the Borrowers, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent, the Borrowers or any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the Notes. Upon execution and delivery of this Agreement, except
with respect to the payment of Fees, the Commitment Letter shall cease to be of
any further force and effect.
9.12 GOVERNING LAW.
This Agreement and the Notes and the rights and obligations of the
parties under this Agreement and the Notes shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York.
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9.13 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
All judicial proceedings brought against the Borrowers and/or any other
Credit Party with respect to this Agreement, any Note or any of the other Credit
Documents may be brought in the courts of the State of North Carolina in
Mecklenburg County or of the United States for the Western District of North
Carolina and, by execution and delivery of this Agreement, each of the Borrowers
and the other Credit Parties accepts, for itself and in connection with its
properties, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and irrevocably agrees to be bound by any final judgment
rendered thereby in connection with this Agreement from which no appeal has been
taken or is available. Each of the Borrowers and the other Credit Parties
irrevocably agrees that all service of process in any such proceedings in any
such court may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to it at its
address set forth in Section 9.2 or at such other address of which the Agent
shall have been notified pursuant thereto, such service being hereby
acknowledged by the each of the Borrowers and the other Credit Parties to be
effective and binding service in every respect. Each of the Borrowers, the other
Credit Parties, the Agent and the Lenders irrevocably waives any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of forum non conveniens which it may now or hereafter have to the
bringing of any such action or proceeding in any such jurisdiction. Nothing
herein shall affect the right to serve process in any other manner permitted by
law or shall limit the right of any Lender or the Agent to bring proceedings
against the Borrowers or the other Credit Parties in the court of any other
jurisdiction.
9.14 ARBITRATION.
(a) Notwithstanding the provisions of Section 9.13 to the
contrary, upon demand of any party hereto, whether made before or after
institution of any judicial proceeding (but in no event more than 90
days after the institution of any such judicial proceeding), any
dispute, claim or controversy arising out of, connected with or
relating to this Agreement and other Credit Documents ("Disputes")
between or among parties to this Agreement shall be resolved by binding
arbitration as provided herein. Institution of a judicial proceeding by
a party does not waive the right of that party to demand arbitration
hereunder. Disputes may include, without limitation, tort claims,
counterclaims, disputes as to whether a matter is subject to
arbitration, claims arising from Credit Documents executed in the
future, or claims arising out of or connected with the transaction
reflected by this Agreement.
Arbitration shall be conducted under and governed by the
Commercial Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code as
currently in effect. All arbitration hearings shall be conducted in
Charlotte, North Carolina. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall be concluded within 120
days of demand for arbitration. These time limitations may not be
extended unless a party shows cause for extension and then no more than
a total extension of 60 days. The expedited procedures
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set forth in Rule 51 ET SEQ. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000. All applicable statutes
of limitation shall apply to any Dispute. A judgment upon the award may
be entered in any court having jurisdiction. Arbitrators shall be
licensed attorneys selected from the Commercial Financial Dispute
Arbitration Panel of the AAA. The parties hereto do not waive
applicable Federal or state substantive law except as provided herein.
Notwithstanding the foregoing, this arbitration provision does not
apply to disputes under or related to Interest Rate Protection
Agreements.
(b) Notwithstanding the preceding binding arbitration
provisions, the Agent, the Lenders, the Borrowers and the other Credit
Parties agree to preserve, without diminution, certain remedies that
the Agent on behalf of the Lenders may employ or exercise freely,
independently or in connection with an arbitration proceeding or after
an arbitration action is brought. The Agent on behalf of the Lenders
shall have the right to proceed in any court of proper jurisdiction or
by self-help to exercise or prosecute the following remedies, as
applicable (i) all rights of self-help including peaceful occupation of
real property and collection of rents, set-off, and peaceful possession
of personal property; and (ii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and filing an involuntary
bankruptcy proceeding. Preservation of these remedies does not limit
the power of an arbitrator to grant similar remedies that may be
requested by a party in a Dispute. Any claim or controversy with regard
to any party's entitlement to such remedies is a Dispute.
(c) The parties hereto agree that they shall not have a remedy
of punitive or exemplary damages against the other in any Dispute and
hereby waive any right or claim to punitive or exemplary damages they
have now or which may arise in the future in connection with any
Dispute whether the Dispute is resolved by arbitration or judicially.
(d) By execution and delivery of this Agreement, each of the
parties hereto accepts, for itself and in connection with its
properties, generally and unconditionally, the non-exclusive
jurisdiction relating to any arbitration proceedings conducted under
the Arbitration Rules in Charlotte, North Carolina and irrevocably
agrees to be bound by any final judgment rendered thereby in connection
with this Agreement from which no appeal has been taken or is
available.
9.15 CONFIDENTIALITY.
The Administrative Agent and each of the Lenders agrees that it will
use reasonable and customary efforts not to disclose without the prior consent
of the Borrowers (other than to its employees, Subsidiaries, Affiliates,
auditors or counsel or to another Lender) any information with respect to the
Borrowers and their Subsidiaries which is furnished pursuant to this Agreement,
any other Credit Document or any documents contemplated by or referred to herein
or therein and which is designated by the Borrowers to the Lenders in writing as
confidential or as to which it is otherwise reasonably clear such information is
not public, except that any Lender may disclose any such information (a) as has
become generally available to the public
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other than by a breach of this Section 9.15, (b) as may be required or
appropriate in any report, statement or testimony submitted to any municipal,
state or federal regulatory body having or claiming to have jurisdiction over
such Lender or to the Federal Reserve Board or the Federal Deposit Insurance
Corporation or the OCC or similar organizations (whether in the United States or
elsewhere) or their successors or the National Association of Insurance
Commissioners, (c) as may be required or appropriate in response to any summons
or subpoena or any law, order, regulation or ruling applicable to such Lender or
(d) to any prospective Participant or assignee in connection with any
contemplated transfer pursuant to Section 9.6, PROVIDED that such prospective
transferee shall have been made aware of this Section 9.15 and shall have agreed
to be bound by its provisions as if it were a party to this Agreement.
9.16 ACKNOWLEDGMENTS.
The Borrowers hereby acknowledge that:
(a) each has been advised by counsel in the negotiation,
execution and delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to either of the Borrowers arising
out of or in connection with this Agreement and the relationship
between Administrative Agent and Lenders, on one hand, and the
Borrowers, on the other hand, in connection herewith is solely that of
debtor and creditor; and
(c) no joint venture exists among the Lenders or among either
of the Borrowers and the Lenders.
SECTION 10. GUARANTY
10.1 THE GUARANTY.
In order to induce the Lenders to enter into this Agreement and to
extend credit hereunder and in recognition of the direct benefits to be received
by the Guarantors from the Loans hereunder, each of the Guarantors hereby agrees
with the Administrative Agent and the Lenders as follows: each Guarantor hereby
unconditionally and irrevocably jointly and severally guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, by acceleration or otherwise, of any and all indebtedness of the
Borrowers to the Administrative Agent and the Lenders and all other Obligations
of the Borrowers and the other Credit Parties hereunder (excluding in the case
of Penton USA, in its capacity as a Guarantor, any obligations of Penton USA
under this Credit Agreement or the Notes, in its capacity as a Borrower). If any
or all of the indebtedness of the Borrowers to the Administrative Agent and the
Lenders becomes due and payable hereunder, each Guarantor unconditionally
promises to pay such indebtedness to the Administrative Agent and the Lenders,
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or order, on demand, together with any and all reasonable expenses which may be
incurred by the Administrative Agent or the Lenders in collecting any of the
indebtedness. The word "indebtedness" is used in this Section 10 in its most
comprehensive sense and includes any and all advances, debts, obligations and
liabilities of the Borrowers arising in connection with this Agreement, in each
case, heretofore, now, or hereafter made, incurred or created, whether
voluntarily or involuntarily, absolute or contingent, liquidated or
unliquidated, determined or undetermined, whether or not such indebtedness is
from time to time reduced, or extinguished and thereafter increased or incurred,
whether the Borrowers may be liable individually or jointly with others, whether
or not recovery upon such indebtedness may be or hereafter become barred by any
statute of limitations, and whether or not such indebtedness may be or hereafter
become otherwise unenforceable.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
10.2 BANKRUPTCY.
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all indebtedness of the
Borrowers to the Lenders whether or not due or payable by the Borrowers upon the
occurrence of any of the events specified in Section 7(a), and unconditionally
promises to pay such indebtedness to the Administrative Agent for the account of
the Lenders, or order, on demand, in lawful money of the United States. Each of
the Guarantors further agrees that to the extent that the Borrowers or a
Guarantor shall make a payment or a transfer of an interest in any property to
the Administrative Agent or any Lender, which payment or transfer or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
or otherwise is avoided, and/or required to be repaid to the Borrowers or a
Guarantor, the estate of the Borrowers or a Guarantor, a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such avoidance or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment had not been made.
10.3 NATURE OF LIABILITY.
The liability of each Guarantor hereunder is exclusive and independent
of any security for or other guaranty of the indebtedness of the Borrowers
whether executed by any such Guarantor, any other guarantor or by any other
party, and no Guarantor's liability hereunder shall be affected or impaired by
(a) any direction as to application of payment by the Borrowers or by any other
party, or (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the indebtedness of the
Borrowers, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or
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increase, decrease or change in personnel by the Borrowers, or (e) any payment
made to the Administrative Agent or the Lenders on the indebtedness which the
Administrative Agent or such Lenders repay the Borrowers pursuant to court order
in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each of the Guarantors waives any right to the deferral
or modification of its obligations hereunder by reason of any such proceeding.
10.4 INDEPENDENT OBLIGATION.
The obligations of each Guarantor hereunder are independent of the
obligations of any other guarantor or the Borrowers, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other guarantor or the Borrowers and whether or
not any other Guarantor or the Borrowers is joined in any such action or
actions.
10.5 AUTHORIZATION.
Each of the Guarantors authorizes the Administrative Agent and each
Lender without notice or demand (except as shall be required by applicable
statute and cannot be waived), and without affecting or impairing its liability
hereunder, from time to time to (a) renew, compromise, extend, increase,
accelerate or otherwise change the time for payment of, or otherwise change the
terms of the indebtedness or any part thereof in accordance with this Agreement,
including any increase or decrease of the rate of interest thereon, (b) take and
hold security from any guarantor or any other party for the payment of this
Guaranty or the indebtedness and exchange, enforce waive and release any such
security, (c) apply such security and direct the order or manner of sale thereof
as the Administrative Agent and the Lenders in their discretion may determine
and (d) release or substitute any one or more endorsers, guarantors, the
Borrowers or other obligors.
10.6 RELIANCE.
It is not necessary for the Administrative Agent or the Lenders to
inquire into the capacity or powers of the Borrowers or the officers, directors,
partners or Administrative Agents acting or purporting to act on its behalf, and
any indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
10.7 WAIVER.
(a) Each of the Guarantors waives any right (except as shall
be required by applicable statute and cannot be waived) to require the
Administrative Agent or any Lender to (i) proceed against the
Borrowers, any other guarantor or any other party, (ii) proceed against
or exhaust any security held from the Borrowers, any other guarantor or
any other party, or (iii) pursue any other remedy in the Administrative
Agent's or any Lender's power whatsoever. Each of the Guarantors waives
any defense based on or
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arising out of any defense of the Borrowers, any other guarantor or any
other party other than payment in full of the indebtedness, including
without limitation any defense based on or arising out of the
disability of the Borrowers, any other guarantor or any other party, or
the unenforceability of the indebtedness or any part thereof from any
cause, or the cessation from any cause of the liability of the
Borrowers other than payment in full of the indebtedness. The
Administrative Agent or any of the Lenders may, at their election,
foreclose on any security held by the Administrative Agent or a Lender
by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or
remedy the Administrative Agent and any Lender may have against the
Borrowers or any other party, or any security, without affecting or
impairing in any way the liability of any Guarantor hereunder except to
the extent the indebtedness has been paid. Each of the Guarantors
waives any defense arising out of any such election by the
Administrative Agent and each of the Lenders, even though such election
operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of the Guarantors against the
Borrowers or any other party or any security.
(b) Each of the Guarantors waives all presentments, demands
for performance, protests and notices, including without limitation
notices of nonperformance, notice of protest, notices of dishonor,
notices of acceptance of this Guaranty, and notices of the existence,
creation or incurring of new or additional indebtedness. Each Guarantor
assumes all responsibility for being and keeping itself informed of the
Borrowers' financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the indebtedness
and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that neither the
Administrative Agent nor any Lender shall have any duty to advise such
Guarantor of information known to it regarding such circumstances or
risks.
(c) Each of the Guarantors hereby agrees it will not exercise
any rights of subrogation which it may at any time otherwise have as a
result of this Guaranty (whether contractual, under Section 509 of the
U.S. Bankruptcy Code, or otherwise) to the claims of the Lenders
against the Borrowers or any other guarantor of the indebtedness of the
Borrowers owing to the Lenders (collectively, the "OTHER PARTIES") and
all contractual, statutory or common law rights of reimbursement,
contribution or indemnity from any Other Party which it may at any time
otherwise have as a result of this Guaranty until such time as the
Loans hereunder shall have been paid and the Commitments have been
terminated. Each of the Guarantors hereby further agrees not to
exercise any right to enforce any other remedy which the Administrative
Agent and the Lenders now have or may hereafter have against any Other
Party, any endorser or any other guarantor of all or any part of the
indebtedness of the Borrowers and any benefit of, and any right to
participate in, any security or collateral given to or for the benefit
of the Lenders to secure payment of the indebtedness of the Borrowers
until such time as the Loans hereunder shall have been paid and the
Commitments have been terminated.
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10.8 LIMITATION ON ENFORCEMENT.
The Lenders agree that this Guaranty may be enforced only by the action
of the Administrative Agent acting upon the instructions of the Majority Lenders
and that no Lender shall have any right individually to seek to enforce or to
enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent for the benefit of the
Lenders upon the terms of this Agreement. The Lenders further agree that this
Guaranty may not be enforced against any director, officer, employee or
stockholder of the Guarantors.
10.9 CONFIRMATION OF PAYMENT.
The Administrative Agent and the Lenders will, upon request after
payment of the indebtedness and obligations which are the subject of this
Guaranty and termination of the commitments relating thereto, confirm to the
Borrowers, the Guarantors or any other Person that such indebtedness and
obligations have been paid and the commitments relating thereto terminated,
subject to the provisions of Section 10.2.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by its proper and duly authorized officers as of the
day and year first above written.
BORROWERS: PENTON MEDIA, INC.,
A DELAWARE CORPORATION
BY: /S/ XXXXXX X. XXXXXXX
NAME: XXXXXX X. XXXXXXX
TITLE: PRESIDENT AND CHIEF OPERATING OFFICER
PENTON MEDIA LIMITED,
AN ENGLISH LIMITED LIABILITY COMPANY
BY: /S/ XXXXXX X. XXXXXXX
NAME: XXXXXX X. XXXXXXX
TITLE: DIRECTOR
SUBSIDIARY GUARANTORS: XXXXXX & XXXXX/PENECO, INC.
A FLORIDA CORPORATION
BY: /S/ XXXXXX X. XXXXXXX
NAME: XXXXXX X. XXXXXXX
TITLE: VICE PRESIDENT
X-X ACQUISITION CORP.,
AN ILLINOIS CORPORATION
BY: /S/ XXXXXXX XXXXXXXXX
NAME: XXXXXXX XXXXXXXXX
TITLE:SECRETARY
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AGENTS AND LENDERS: FIRST UNION NATIONAL BANK,
AS ADMINISTRATIVE AGENT AND AS A LENDER
BY: /S/ XXXXX X. XXXXXX
NAME: XXXXX X. XXXXXX
TITLE: SENIOR VICE PRESIDENT
KEY CORPORATE CAPITAL INC.,
AS CO-AGENT AND AS A LENDER
BY: /S/ XXXXXXX X. XXXXXX
NAME: XXXXXXX X. XXXXXX
TITLE: SENIOR PORTFOLIO MANAGER
