Exhibit 10.36
EXECUTION VERSION
AMENDMENT AGREEMENT dated as of May 24, 2004
(this "Amendment Agreement"), among THE READER'S
DIGEST ASSOCIATION, INC., a Delaware corporation (the
"Company"); BOOKS ARE FUN, LTD., QSP, INC., and
XXXXXX MEDIA GROUP, INC. (the "Borrowing
Subsidiaries"); the financial institutions and other
entities listed on Schedule I hereto, in their
respective capacities as Lenders under the Existing
Term Loan Agreement referred to below (the "Original
Lenders"); the financial institutions and other
entities listed on Schedule II hereto (the
"Continuing Lenders" and, together with the Original
Lenders, the "Lenders"); and JPMORGAN CHASE BANK, as
administrative agent and collateral agent (in such
capacities, the "Agent") under the Existing Term Loan
Agreement referred to below.
WHEREAS, the Company, the Borrowing Subsidiaries, the Original
Lenders and the Agent are parties to a Term Loan Agreement dated as of May 20,
2002 (as heretofore amended, the "Existing Term Loan Agreement"); and
WHEREAS, the Company and the Borrowing Subsidiaries have
requested, and the Continuing Lenders and the Agent have agreed, upon the terms
and subject to the conditions set forth herein, that the Existing Term Loan
Agreement be amended and restated as provided herein;
NOW, THEREFORE, the Company, the Borrowing Subsidiaries, the
undersigned Lenders (constituting all the Continuing Lenders and the Required
Lenders under and as defined in the Existing Term Loan Agreement) and the Agent
hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not
defined herein have the meanings assigned to such terms in the Restated Term
Loan Agreement referred to below, except that references to "Loans" or "Tranche
B Term Loans" under the Existing Term Loan Agreement shall have the meanings
assigned to such terms in the Existing Term Loan Agreement.
SECTION 2. Effective Date. (a) The transactions provided for
in Sections 3 through 9 shall be consummated at a closing (the "Closing") to be
held on the Effective Date at the offices of Cravath, Swaine & Xxxxx LLP, or at
such other time and place as the parties hereto shall agree upon.
(b) The "Effective Date" shall be specified by the Company,
and shall be a date not later than June 15, 2004, as of which all the conditions
set forth or referred to in Section 7 shall have been satisfied or waived
pursuant to Section 10.02 of the Restated Term Loan Agreement. The Company shall
give not less than one Business Day's written notice proposing a date as the
Effective Date to the Agent, which shall send copies of such notice to the
Lenders. This Amendment Agreement shall terminate at
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5:00 p.m., New York City time, on June 15, 2004, if the Effective Date shall not
have occurred at or prior to such time.
SECTION 3. Amendment and Restatement of the Existing Term Loan
Agreement; Making and Prepayment of Loans. (a) The Existing Term Loan Agreement
(including all Exhibits and Schedules thereto) is hereby amended and restated,
effective as of the Effective Date, to read in its entirety as set forth in
Exhibit A hereto (the "Restated Term Loan Agreement"). From and after the
effectiveness of such amendment and restatement, the terms "Agreement", "this
Agreement", "herein", "hereinafter", "hereto", "hereof" and words of similar
import, as used in the Restated Term Loan Agreement, shall, unless the context
otherwise requires, refer to the Restated Term Loan Agreement, and the term
"Credit Agreement", as used in the other Loan Documents, shall mean the Restated
Term Loan Agreement.
(b) On the Effective Date, (i) the Tranche A Lenders will make
the Tranche A Term Loans as provided in the Restated Term Loan Agreement, (ii)
the Company will borrow under the Five-Year Credit Agreement and/or make
available to the Agent internally generated funds in amounts that, when taken
together with the proceeds of the Tranche A Term Loans, are sufficient to enable
the Agent to make the prepayments referred to in the following clause (iii), and
(iii) the Agent will apply the proceeds of the Tranche A Term Loans referred to
in the preceding clause (i) and the proceeds of borrowings and other amounts
referred to in the preceding clause (ii) to prepay Tranche B Term Loans
outstanding under the Existing Term Loan Agreement as required in order that the
only Tranche B Term Loans remaining outstanding under the Restated Term Loan
Agreement will be those listed on Schedule II hereto opposite the names of the
Continuing Lenders that are Tranche B Lenders. Notwithstanding anything to the
contrary in the Existing Term Loan Agreement or the Restated Term Loan Agreement
(including, without limitation, with respect to notices of Borrowing as
described in Section 2.03 therein), each Eurodollar Loan outstanding under the
Existing Term Loan Agreement will be converted on the Effective Date into a
Eurodollar Loan as provided in the Restated Term Loan Agreement; provided that
if the Restated Term Loan Agreement shall not become effective in accordance
with its terms or such Eurodollar Term Loans shall not be made on the Effective
Date, the Borrowers hereby unconditionally agree to reimburse the Continuing
Lenders in accordance with Section 2.15 of the Restated Term Loan Agreement . To
the extent this Agreement provides for any Continuing Lender to make a Tranche A
Term Loan and to receive a prepayment in respect of a Tranche B Term Loan under
the Existing Term Loan Agreement on the Effective Date, the amounts owed by and
to such Continuing Lender may be netted against one another so that such
Continuing Lender shall pay or receive, as the case may be, only the net amount
owed.
SECTION 4. Delivery of Notes. On or prior to the Effective
Date, each Lender holding one or more Notes (as defined in the Existing Term
Loan Agreement) shall deliver such Notes to the Agent. Each Lender that fails so
to deliver any such Note held by it hereby agrees to indemnify the Company and
the Borrowing Subsidiaries for any loss, cost or expense resulting from such
failure. Upon the effectiveness of the
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Restated Term Loan Agreement, the Agent shall release and deliver such Notes to
the Company for cancelation.
SECTION 5. Fees and Expenses. On the Effective Date the
Borrowers shall pay to the Agent (a) for its own account, all fees and other
amounts due and payable to it under any agreement or instrument between it and
the Company as of the Effective Date and (b) for the account of each applicable
payee, all expenses due and payable on or before the Effective Date, including,
without limitation, the reasonable fees and expenses accrued and invoiced
through the Effective Date of Cravath, Swaine & Xxxxx LLP, counsel for the
Agent.
SECTION 6. Payments. (a) Subject to the conditions set forth
in Section 7, on the Effective Date, the Borrowers shall pay to the Agent, in
the manner required under the Existing Term Loan Agreement, for distribution to
the Original Lenders in accordance with the Existing Term Loan Agreement, an
amount equal to the sum of (A) all interest accrued under the Existing Term Loan
Agreement on the Loans outstanding thereunder through the date immediately
preceding the Effective Date and not yet paid and (B) all fees and other amounts
accrued under the Existing Term Loan Agreement through the date immediately
preceding the Effective Date and not yet paid, in each case whether or not then
due under the terms of the Existing Term Loan Agreement;.
(b) The Borrowers agree to pay to each Original Lender any
breakage costs that may result from the termination pursuant to Section 3(b) of
the Interest Periods applicable to the Tranche B Term Loans outstanding under
the Existing Term Loan Agreement as provided in Section 2.15 of Existing Term
Loan Agreement, and agrees that for purposes of computing amounts due under such
Section, such Loans will be deemed to have been prepaid on the Effective Date.
SECTION 7. Conditions. The consummation of the transactions
set forth in Sections 3 through 6 of this Amendment Agreement shall be subject
to the satisfaction of the following conditions precedent:
(a) The Agent shall have received, on behalf of itself and the
Lenders, favorable written opinion of Xxxxxxxx X. X. XxXxxx, Esq.,
Associate General Counsel of the Company, addressing such matters as
the Agent shall reasonably request and in form substance satisfactory
to the Agent, in each case dated the Effective Date, addressed to the
Agent and the Lenders, and the Company hereby requests such counsel to
deliver such opinion.
(b) The Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments
thereto, of each Loan Party, certified as of a recent date by the
Secretary of State or comparable official of the state or other
jurisdiction of its organization, and, except with respect to
jurisdictions that do not issue such certificates for persons organized
in the manner of such Loan Party, a certificate as to the good standing
of each Loan Party as of a recent date, from such Secretary of State or
other official; (ii) a certificate of the Secretary or
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Assistant Secretary of each Loan Party dated the Effective Date and
certifying (A) that attached thereto is a true and complete copy of the
by-laws of such Loan Party as in effect on the Effective Date and at
all times since a date prior to the date of the resolutions described
in clause (B) below, (B) that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors of such Loan
Party authorizing the execution, delivery and performance of the Loan
Documents to which such person is a party and, in the case of the
Company, the Borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect,
(C) that the certificate or articles of incorporation of such Loan
Party have not been amended since the date of the last amendment
thereto shown on the certified copy thereof furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature
of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party; (iii) a
certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the
certificate pursuant to clause (ii) above; and (iv) such other
documents as the Lenders or the Agent may reasonably request.
(c) The representations and warranties set forth in Article IV
of the Restated Term Loan Agreement shall be true and correct in all
material respects on and as of the Effective Date.
(d) The Borrowers shall be in compliance with all the terms
and provisions set forth in the Restated Term Loan Agreement and the
other Loan Documents on their part to be observed or performed, and at
the time of and immediately after the Effective Date, no Event of
Default or Default shall have occurred and be continuing.
(e) The Collateral and Guarantee Requirement shall be
satisfied.
(f) The Agent shall have received a certificate, signed by a
Financial Officer of the Company, confirming the satisfaction of the
conditions set forth in paragraphs (c), (d) and (e) above on and as of
the Effective Date, after giving effect to the Transactions occurring
on or prior to such date.
(g) The Agent shall have received all Fees and other amounts
due and payable on or prior to the Effective Date under the Existing
Term Loan Agreement or Section 5 or 6 of this Amendment Agreement.
Notwithstanding the foregoing, the Restated Term Loan
Agreement shall not become effective and the transactions provided for in
Sections 3 through 6 shall not occur unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.02 of the Restated Term Loan
Agreement) at or prior to 5:00 p.m., New York City time, on June 15, 2004 (and,
in the event such conditions are not so satisfied or waived, the obligations of
the Lenders to complete the transactions provided for herein shall terminate at
such time). The Agent shall notify the Company and the Continuing Lenders of the
Effective Date, and such notice shall be conclusive and binding.
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SECTION 8. Effectiveness; Counterparts. This Amendment
Agreement shall become effective when copies hereof which, when taken together,
bear the signatures of each of the Company, each Borrowing Subsidiary, the
Agent, each of the Continuing Lenders and Lenders constituting the Required
Lenders under and as defined in the Existing Term Loan Agreement shall have been
received by the Agent. This Amendment Agreement may not be amended nor may any
provision hereof be waived except pursuant to a writing signed by the Company,
the Borrowing Subsidiaries, the Agent and the Continuing Lenders. This Amendment
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute but
one contract. Delivery of an executed counterpart of a signature page of this
Amendment Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Amendment Agreement.
SECTION 9. No Novation. This Amendment Agreement shall not
extinguish the Loans outstanding under the Existing Term Loan Agreement. Nothing
herein contained shall be construed as a substitution or novation of the Loans
outstanding under the Existing Term Loan Agreement, which shall remain
outstanding as modified hereby. Notwithstanding any provision of this Amendment
Agreement, the provisions of Sections 2.13, 2.14, 2.15, 2.19, 2.20 and 10.03 of
the Existing Term Loan Agreement, as in effect immediately prior to the
Effective Date, will continue to be effective as to all matters arising out of
or in any way related to facts or events existing or occurring prior to the
Effective Date.
SECTION 10. Notices. All notices hereunder shall be given in
accordance with the provisions of Section 10.01 of the Restated Term Loan
Agreement.
SECTION 11. Applicable Law; Waiver of Jury Trial. (A) THIS
AMENDMENT AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTIONS
10.03, 10.09 and 10.10 OF THE RESTATED TERM LOAN AGREEMENT AS IF SUCH SECTIONS
WERE SET FORTH IN FULL HEREIN AND APPLIED, MUTATIS MUTANDIS, TO THE TRANSACTIONS
PROVIDED FOR HEREIN.
THE READER'S DIGEST ASSOCIATION, INC.,
by:
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Name:
Title:
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BOOKS ARE FUN, LTD.,
by:
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Name:
Title:
QSP, INC.,
by:
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Name:
Title:
XXXXXX MEDIA GROUP, INC.,
by:
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Name:
Title:
JPMORGAN CHASE BANK, individually and as
Administrative Agent and Collateral Agent,
by:
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Name:
Title:
SCHEDULES
Schedules
Schedule I Original Lenders
Schedule II Continuing Lenders
EXHIBITS
Exhibits
Exhibit A Restated Term Loan Agreement
Exhibit B Reaffirmation Agreement
SCHEDULE I
ORIGINAL LENDERS
SCHEDULE II
CONTINUING LENDERS
To approve the Amendment Agreement:
Name of Institution:
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by:
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Name:
Title:
STATUS (check both, if applicable)
Original Lender
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Continuing Lender
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