EXHIBIT 4.7.4
EXECUTION COPY
5th AMENDMENT, WAIVER AND CONSENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS 5th AMENDMENT, WAIVER AND CONSENT, dated as of January 28, 2003
(this "Amendment"), to the Amended and Restated Credit Agreement dated June 26,
2001 (as heretofore amended, amended and restated and supplemented, the "Credit
Agreement") among Key3Media Group, Inc., a Delaware corporation, the Guarantors
party thereto, the Lenders party thereto, The Bank of New York, as Syndication
Agent, Fleet National Bank and BNP Paribas, each as Co-Documentation Agent, UBS
Warburg LLC, as Documentation Agent, and Wilmington Trust Company, as
Administrative Agent and Collateral Agent. Unless otherwise defined herein or
the context clearly requires otherwise, all capitalized terms shall have the
meanings given to them in the Credit Agreement.
PRELIMINARY STATEMENTS
WHEREAS, Key3Media Group, Inc. (the "Borrower") is the borrower under
the Loan Documents;
WHEREAS, Key3Media Events, Inc. ("Events"), Key3Media Advertising,
Inc., Key3Media BCR Events, Inc., Key3Media Von Events, Inc. and Key3Media
BioSec Corp. (collectively, the "Guarantors" and, together with the Borrower,
the "Loan Parties") are guarantors under the Loan Documents;
WHEREAS, the Loan Parties have granted Liens in favor of the Lenders to
secure the amounts payable to the Lenders pursuant to the Loan Documents;
WHEREAS, the Loan Parties plan to file petitions for relief under
chapter 11 of title 11 of the United States Code in the United States Bankruptcy
Court for the District of Delaware (the "Bankruptcy Court");
WHEREAS, as of the date of this Amendment, Xxxxxx Xxxxxx Strategic
Opportunities Partners, L.P. and/or funds managed or controlled by it or its
affiliates (collectively, "Xxxxxx") own more than a majority in interest of the
sum of (i) the aggregate principal amount of the Advances outstanding, (ii) the
aggregate Available Amount of all Letters of Credit outstanding, and (iii) the
aggregate Unused Revolving Credit Commitments;
WHEREAS, the Loan Parties believe that the survival of their businesses
is dependent upon obtaining debtor-in-possession ("DIP Financing") of up to
$30,000,000, of which up to $12,500,000 needs to be made available to the Loan
Parties during the next 30 days;
WHEREAS, subject to the satisfaction of certain conditions, the Loan
Parties have received commitments from Xxxxxx (the "Xxxxxx DIP Lender") to
provide the DIP Financing to the Loan Parties;
WHEREAS, each Lender may be offered an opportunity to participate in
the DIP Financing on a pro rata basis in proportion to the outstanding principal
amount of its Loans, such participating Lenders referred to herein as the "DIP
Lenders";
WHEREAS, the DIP Financing will be conditioned upon, among other
things, the DIP Financing
1
being (i) secured by a Lien on all of the assets of the Loan Parties, (ii)
secured by a first priority Lien on certain assets of the Loan Parties, and
(iii) a super-priority administrative claim;
WHEREAS, the Loan Parties intend to request that the Bankruptcy Court
approve up to $12,500,000 of the DIP Financing by the DIP Lenders on an interim
basis (the "Interim DIP Financing") pursuant to an Interim Order (the "Interim
Order") to be entered immediately following the commencement of the Loan
Parties' bankruptcy cases;
WHEREAS, the Loan Parties further intend to request that the Bankruptcy
Court approve the Interim DIP Financing and the remaining amount of DIP
Financing by the DIP Lenders on a final basis pursuant to an order (the "Final
Order") to be entered following the required notice and a hearing pursuant to
Rule 4001 of the Federal Rules of Bankruptcy Procedure;
WHEREAS, the Loan Parties further intend to request that the Bankruptcy
Court approve the grant of Liens on all of the assets of the Loan Parties to
secure the DIP Financing, and that such Liens shall be senior to all other Liens
on certain assets of the Loan Parties and such Liens shall be junior to existing
Liens on the remaining assets of the Loan Parties; and
WHEREAS, the Loan Parties have requested the Required Lenders, and the
Required Lenders are willing, on the terms and conditions set forth below, to
consent to the Loan Parties granting senior Liens on certain assets of the Loan
Parties in favor of the DIP Lenders to secure the DIP Financing.
AGREEMENT
NOW, THEREFORE, the Loan Parties and the Required Lenders hereby agree
as follows:
SECTION 1. Consent to Subordination of Liens. (a) The Required
Lenders hereby acknowledge and agree that, in conjunction with the entry of the
Interim Order by the Bankruptcy Court, the Required Lenders (or their designee)
shall have the authority (without any further action, approval or consent of the
Lenders) to fully subordinate the Liens granted to the Lenders pursuant to the
Loan Documents on the DIP Interim Loan Collateral (as hereinafter defined) to
the Liens granted to the DIP Lenders on such collateral to secure the DIP
Interim Financing on such terms and conditions as are acceptable to the Required
Lenders (or their designee) in their sole discretion. The Required Lenders
further acknowledge and agree that all of the proceeds from the DIP Interim Loan
Collateral and all payments and distributions on account of the DIP Interim Loan
Collateral (including, without limitation, any proceeds from a sale, transfer or
other disposition of the DIP Interim Loan Collateral or any distributions made
to creditors pursuant to any reorganization of the Loan Parties) shall be
applied to the payment in full of all amounts payable to the DIP Lenders
pursuant to the DIP Interim Financing prior to any such proceeds or
distributions being applied to payment of any amounts payable to the Lenders
pursuant to the Loan Documents. As used in this Amendment, the term "DIP Interim
Loan Collateral" means the assets of the Loan Parties set forth on Schedule I to
this Amendment.
(b) The Required Lenders hereby acknowledge and agree that, in
conjunction with the entry of the Final Order by the Bankruptcy Court, the
Required Lenders (or their designee) shall have the authority (without any
further action, approval or consent of the Lenders) to fully subordinate the
Liens granted to the Lenders pursuant to the Loan Documents on the DIP Loan
Collateral (as hereinafter defined) to the Liens granted to the DIP Lenders on
such collateral to secure the DIP Financing on such terms and conditions as are
acceptable to the Required Lenders (or their designee) in their sole discretion.
The Required Lenders hereby further acknowledge and agree that all of the
proceeds from DIP Loan Collateral and all payments and distributions on account
of the DIP Loan Collateral (including, without
2
limitation, any proceeds from a sale, transfer or other disposition of the DIP
Loan Collateral or any distributions made to creditors pursuant to any
reorganization of the Loan Parties) shall be applied to the payment in full of
all amounts payable to the DIP Lenders pursuant to the DIP Financing prior to
any such proceeds or distributions being applied to payment of any amounts
payable to the Lenders pursuant to the Loan Documents. As used in this
Amendment, the term "DIP Loan Collateral" means (i) the DIP Interim Loan
Collateral, (ii) the assets of the Loan Parties set forth on Schedule II to this
Amendment, and (iii) after any of the Loan Parties file for bankruptcy, any
other assets of the Loan Parties that are designated by the Required Lenders (or
their designee); provided, however, that notwithstanding the foregoing, neither
the DIP Interim Loan Collateral nor the DIP Loan Collateral shall constitute all
or substantially all of the Collateral and further provided that all or
substantially all of on the Collateral shall not be released in any transaction
or series of related transactions without the consent of all of the Lenders.
(c) If the Bankruptcy Court does not approve the subordination
of all of the Liens on the DIP Interim Loan Collateral and the DIP Loan
Collateral granted to the Lenders pursuant to the Loan Documents to the Liens
granted to the DIP Lenders for any reason, the Required Lenders authorize and
approve the release of Liens on Collateral as, when and to the extent requested
by the DIP Lenders to secure the DIP Financing and approved by the Required
Lenders (or their designee) on such terms and conditions as are acceptable to
the Required Lenders (or their designee) in their sole discretion without any
further action, consent or approval of the Lenders; provided, however, that
notwithstanding the foregoing, all or substantially all of the Collateral shall
not be released in any transaction or series of related transactions without the
consent of all of the Lenders.
(d) If the Required Lenders (or their designee) release any
Collateral pursuant to this Amendment so that the Loan Parties may grant a first
priority Lien on such Collateral in favor the DIP Lenders to secure the DIP
Financing, the Loan Parties shall grant the Lenders a second priority Lien on
such Collateral if the Bankruptcy Court authorizes the Loan Parties to grant
such Lien (and any such second priority Lien shall be fully subordinated to the
payment in full of the DIP Financing).
(e) The Required Lenders hereby acknowledge and agree that
all of the Liens on the Collateral granted to the Lenders pursuant to the Loan
Documents shall be subject to (i) the payment of unpaid fees and disbursements
of the bankruptcy counsel and financial advisors of the Loan Parties and any
statutory committee, to the extent allowed by a final order of the Bankruptcy
Court, up to an aggregate amount approved by the Required Lenders (or their
designee), (ii) the payment of unpaid fees and disbursements incurred by
professionals for any statutory committee appointed in the Loan Parties'
bankruptcy cases, to the extent allowed by a final order of the Bankruptcy
Court, up to an aggregate amount approved by the Required Lenders (or their
designee), (iii) the payment of fees pursuant to 28 U.S.C. Section 1930 and to
the Clerk of the Bankruptcy Court, and (iv) the payment of fees and expenses of
a trustee appointed under chapter 7 of the Bankruptcy Code up to an aggregate
amount approved by the Required Lenders (or their designee).
SECTION 2. Cash Collateral. The Required Lenders hereby approve the use
of cash collateral by the Loan Parties during the their bankruptcy proceedings
on such terms and conditions as are acceptable to the Required Lenders (or their
designee) in their sole discretion.
SECTION 3. Waivers. The Required Lenders party hereto hereby agree to
waive any Default or Event of Default that may have occurred or may occur due to
the failure of the Borrower to observe the covenant in Section 5.02(a) of the
Credit Agreement solely to the extent that such a failure arises out of or
relates to the Borrower's execution of this Fifth Amendment.
SECTION 4. Effective Date. This Amendment shall be effective (and be
binding on all
3
Lenders and Agents) immediately upon the Administrative Agent receiving a copy
of this Amendment that has been executed by the Required Lenders and the Loan
Parties. In the event of any conflict between the terms of this Amendment and
any provision of the Loan Documents, the terms of this Amendment shall govern
and control and the provisions of the Loan Documents shall be superseded,
modified and replaced to the extent required to give effect to this Amendment
and any Defaults or Events of Default resulting from any actions taken by the
Loan Parties pursuant to this Amendment are waived.
SECTION 5. Severability If any provision of this Amendment is
inoperative or unenforceable for any reason or under any circumstances, it shall
not have the effect of (i) rendering the provision in question inoperative or
unenforceable for any other reason or under any other circumstance, or (ii)
rendering any other provision or provisions in this Amendment invalid,
inoperative, or unenforceable to any extent whatsoever. The invalidity of any
one or more phrases, sentences, clauses, sections or subsections of this
Amendment shall not affect the remaining portions of this Amendment.
SECTION 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. Delivery of an
executed counterpart of a signature page to this Amendment by telecopier shall
be effective as delivery of an original executed counterpart of this Amendment.
[SIGNATURES ON NEXT PAGE]
4
IN WITNESS WHEREOF, the Loan Parties and the Required Lenders have
caused this Amendment to be duly executed as of the date first above written.
KEY3MEDIA GROUP INC., as Borrower
By: ______________________________________
Name:
Title:
KEY3MEDIA EVENTS, INC., as a Guarantor
By: ______________________________________
Name:
Title:
KEY3MEDIA ADVERTISING, INC., as a
Guarantor
By: ______________________________________
Name:
Title:
KEY3MEDIA BCR EVENTS, INC, as a
Guarantor
By: ______________________________________
Name:
Title:
KEY3MEDIA VON EVENTS, INC., as a
Guarantor
By: ______________________________________
Name:
Title:
KEY3MEDIA BIOSEC CORP., as a
Guarantor
By: ______________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Administrative Agent, and
Collateral Agent
By: _______________________________________
Name:
Title:
FLEET NATIONAL BANK
By: _______________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.
By: _______________________________________
Name:
Title:
EVENT PARTNERS DEBT
ACQUISITION, L.L.C
By: _______________________________________
Name:
Title:
XXXXXX XXXXXX STRATEGIC
OPPORTUNITIES PARTNERS, L.P.
By: _______________________________________
Name:
Title:
XXXXXX XXXXXX CAPITAL PARTNERS, L.P.
By: _______________________________________
Name:
Title:
TWP CEO FOUNDERS' CIRCLE (QP), L.P.
By: _______________________________________
Name:
Title:
TWP CEO FOUNDERS' CIRCLE (AI), L.P.
By: _______________________________________
Name:
Title:
XXXXXX XXXXXX CAPITAL PARTNERS
EMPLOYEE FUND, L.P.
By: _______________________________________
Name:
Title:
SCHEDULE I
INITIAL DIP LOAN COLLATERAL
All right, title and interest of the Loan Parties in, to and under all of the
following (whether or not registered or an application is pending): the COMDEX
name, trademarks, marks and all related, similar, derivative or associated
names, trademarks, names (including, without limitation, Comdex & Design, Comdex
Enterprise & Design, Comdex Television News & Design, and Comdex TV & Design,
Xxxxxxxxx.xxx, Xxxxxxxxx.xxx, Xxxxxxxxxxx.xxx, Xxxxxxxxx.xxx, and Xxxxxxxxx.xxx)
and all other related, similar, derivative or associated intellectual property
and rights.
All right, title and interest of the Loan Parties in any and all agreements
regarding all COMDEX tradeshows and related events and programs (including,
without limitation, all agreements, contracts and other arrangements entered
into by the Loan Parties in connection with any COMDEX tradeshow or related
event or program, including all agreements regarding the use of convention space
and hotel rooms).
All accounts receivable and other amounts now or hereafter payable, directly or
indirectly, to or for the benefit of the Loan Parties on account of, in
connection with, or as a result of any COMDEX tradeshow or related event or
program.
SCHEDULE II
ADDITIONAL DIP LOAN COLLATERAL
All right, title and interest of the Loan Parties in, to and under all of the
following (whether or not registered or an application is pending): (i) the
VoiceCon name, trademarks, marks and designs and all related, similar,
derivative or associated names, trademarks and names and all other related,
similar, derivative or associated intellectual property and rights (excluding
any publications related to VoiceCon), (ii) the Xxxxxxx Seminars name,
trademarks, marks and designs and all related, similar, derivative or associated
names, trademarks and names and all other related, similar, derivative or
associated intellectual property and rights (excluding any publications related
to Xxxxxxx Seminars), and (iii) the NGN name, trademarks, marks and designs and
all related, similar, derivative or associated names, trademarks and names and
all other related, similar, derivative or associated intellectual property and
rights (excluding any publications related to NGN).
All right, title and interest of the Loan Parties in any and all agreements
regarding all VoiceCon, Xxxxxxx Seminars, and NGN tradeshows and related events
and programs (including, without limitation, all agreements, contracts and other
arrangements entered into by the Loan Parties in connection with any tradeshow
or related event or program, including all agreements regarding the use of
convention space and hotel rooms).
All accounts receivable and other amounts now or hereafter payable, directly or
indirectly, to or for the benefit of the Loan Parties on account of, in
connection with, or as a result of any VoiceCon, Xxxxxxx Seminars, or NGN
tradeshow or related event or program.
