CREDIT AGREEMENT
among
AMERICAN LAWYER MEDIA HOLDINGS, INC.,
AMERICAN LAWYER MEDIA, INC.,
VARIOUS BANKS,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Issuing Bank,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
BANCBOSTON SECURITIES INC.,
as Syndication Agent,
and
BANCAMERICA ROBERTSON STEPHENS
and
BANCBOSTON SECURITIES INC.,
as Arrangers
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Dated as of March 25, 1998
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TABLE OF CONTENTS
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ARTICLE I.
DEFINITIONS...............................................................................................1
1.01 Defined Terms........................................................................................1
1.02 Other Definitional Provisions.......................................................................24
(a) Defined Terms...............................................................................24
(b) The Agreement...............................................................................24
(c) Certain Common Terms........................................................................24
(d) Performance; Time...........................................................................25
(e) Contracts...................................................................................25
(f) Laws........................................................................................25
1.03 Accounting Principles...............................................................................25
ARTICLE II.
THE CREDIT FACILITIES....................................................................................25
2.01 Amounts and Terms of Commitments....................................................................25
2.02 Loan Accounts and Register; Notes...................................................................26
2.03 Procedure for Borrowing.............................................................................26
2.04 Conversion and Continuation Elections for Revolving Borrowings......................................27
2.05 Reduction and Termination of Commitments............................................................29
2.06 Voluntary Prepayments...............................................................................31
2.07 Mandatory Prepayments...............................................................................31
2.08 Repayment of Principal..............................................................................32
2.09 Interest............................................................................................32
2.10 Fees................................................................................................34
2.11 Computation of Fees and Interest....................................................................35
2.12 Payments by the Borrower............................................................................35
2.13 Payments by the Banks to the Administrative Agent...................................................36
2.14 Sharing of Payments, etc............................................................................37
2.15 Security and Guaranties.............................................................................38
ARTICLE III.
THE LETTERS OF CREDIT....................................................................................38
3.01 The Letter of Credit Subfacility....................................................................38
3.02 Issuance, Amendment and Renewal of Letters of Credit................................................39
3.03 Participations, Drawings and Reimbursements.........................................................41
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3.04 Repayment of Participations.........................................................................42
3.05 Role of the Issuing Bank............................................................................43
3.06 Obligations Absolute................................................................................44
3.07 Cash Collateral Pledge..............................................................................45
3.08 Letter of Credit Fees...............................................................................45
3.09 Uniform Customs and Practice........................................................................46
ARTICLE IV.
TAXES, YIELD PROTECTION AND ILLEGALITY...................................................................46
4.01 Taxes...............................................................................................46
4.02 Illegality..........................................................................................50
4.03 Increased Costs and Reduction of Return.............................................................51
4.04 Funding Losses......................................................................................51
4.05 Inability to Determine Rates........................................................................52
4.06 Increased Costs on Eurodollar Loans.................................................................52
4.07 Certificates of Banks...............................................................................53
4.08 Change of Lending Office, Replacement Bank, etc.....................................................53
4.09 Survival............................................................................................54
ARTICLE V.
CONDITIONS PRECEDENT.....................................................................................54
5.01 Conditions to Revolving Loans and Letters of Credit on the Closing Date.............................54
(a) Credit Agreement............................................................................54
(b) Resolutions; Incumbency.....................................................................54
(c) Articles of Incorporation; By-laws and Good Standing........................................55
(d) Subsidiary Guaranty.........................................................................55
(e) Pledge Agreement............................................................................55
(f) Security Agreement..........................................................................56
(g) Legal Opinions..............................................................................56
(h) Payment of Fees and Expenses................................................................56
(i) Certificates................................................................................57
(j) Solvency Certificate........................................................................57
(k) Adverse Change..............................................................................57
(l) Governmental and Third Party Approvals......................................................57
(m) Litigation..................................................................................57
(n) Shareholders Agreements, Management Agreements and Tax Sharing Agreement...................58
(o) Financial Statements........................................................................58
(p) Insurance...................................................................................58
5.02 Conditions to all Borrowings and the Issuance of any Letters of Credit..............................58
(a) Notice......................................................................................58
(b) Continuation of Representations and Warranties..............................................58
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(c) No Existing Default.........................................................................59
(d) No Material Adverse Effect..................................................................59
(e) Financial Statements........................................................................59
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES...........................................................................59
6.01 Existence and Power.................................................................................59
6.02 Authorization; No Contravention.....................................................................60
6.03 Governmental Authorization..........................................................................60
6.04 Binding Effect......................................................................................60
6.05 Litigation..........................................................................................61
6.06 No Default..........................................................................................61
6.07 ERISA Compliance....................................................................................61
6.08 Use of Proceeds; Margin Regulations.................................................................62
6.09 Title to Properties.................................................................................62
6.10 Taxes...............................................................................................62
6.11 Financial Statements................................................................................62
6.12 Securities Law, etc.; Compliance....................................................................63
6.13 Governmental Regulation.............................................................................63
6.14 Labor Controversies.................................................................................63
6.15 Subsidiaries........................................................................................63
6.16 Patents, Trademarks, etc............................................................................63
6.17 Accuracy of Information.............................................................................63
6.18 Hazardous Materials.................................................................................63
6.19 Collateral Documents................................................................................64
6.20 Solvency............................................................................................65
6.21 Representations and Warranties in the other Documents...............................................65
6.22 Capitalization......................................................................................65
6.23 Special Purpose Corporation.........................................................................66
6.24 Insurance...........................................................................................66
ARTICLE VII.
AFFIRMATIVE COVENANTS....................................................................................66
7.01 Financial Statements................................................................................66
7.02 Certificates; Other Information.....................................................................67
7.03 Notices.............................................................................................68
7.04 Books, Records and Inspections; Annual Meetings.....................................................70
7.05 Maintenance of Property; Insurance..................................................................70
7.06 Corporate Franchises................................................................................71
7.07 Compliance with Law; Contractual Obligations........................................................71
7.08 Payment of Taxes....................................................................................71
7.09 Contributions.......................................................................................71
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7.10 End of Fiscal Years; Fiscal Quarters................................................................72
7.11 Additional Security; Further Assurances.............................................................72
7.12 Foreign Subsidiaries Security.......................................................................72
7.13 Use of Proceeds; Margin Regulations.................................................................73
ARTICLE VIII.
NEGATIVE COVENANTS.......................................................................................73
8.01 Liens...............................................................................................74
8.02 Consolidation, Merger, Purchase or Sale of Assets, etc..............................................76
8.03 Dividends...........................................................................................78
8.04 Indebtedness........................................................................................79
8.05 Advances, Investments and Loans.....................................................................80
8.06 Transactions with Affiliates........................................................................82
8.07 Consolidated Interest Coverage Ratio................................................................83
8.08 Consolidated Fixed Charge Coverage Ratio............................................................83
8.09 Maximum Total Leverage Ratio........................................................................84
8.10 Limitation on Voluntary Payments and Modification of Certain Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc...................................................................................84
8.11 Limitation on Certain Restrictions on Subsidiaries..................................................85
8.12 Limitation on Issuance of Capital Stock.............................................................85
8.13 Business............................................................................................86
8.14 Limitation on Creation of Subsidiaries..............................................................86
ARTICLE IX
EVENT OF DEFAULT
9.01 Event of Default....................................................................................86
9.02 Remedies............................................................................................89
9.03 Rights Not Exclusive................................................................................89
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ARTICLE X
THE GUARANTY.............................................................................................89
10.01 Guaranty from Holdings.............................................................................90
ARTICLE XI
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT,
THE ISSUING BANK, THE SYNDICATION AGENT AND THE ARRANGERS................................................94
11.01 Appointment and Authorization......................................................................94
11.02 Delegation of Duties...............................................................................94
11.03 Liability of Agent.................................................................................94
11.04 Reliance by Agent..................................................................................95
11.05 Notice of Default..................................................................................95
11.06 Credit Decision....................................................................................96
11.07 Indemnification....................................................................................96
11.08 Agent in Individual Capacity.......................................................................97
11.09 Successor Agent....................................................................................97
11.09 The Arrangers and the Syndication Agent............................................................97
ARTICLE XII
MISCELLANEOUS............................................................................................98
12.01 Amendments and Waivers.............................................................................98
12.02 Notices............................................................................................99
12.03 No Waiver; Cumulative Remedies....................................................................100
12.04 Costs and Expenses................................................................................100
12.05 Indemnity.........................................................................................101
12.06 Successors and Assigns............................................................................101
12.07 Assignments, Participations, etc..................................................................102
12.08 Confidentiality...................................................................................103
12.10 Notification of Addresses, Lending Offices, etc...................................................104
12.11 Counterparts......................................................................................105
12.12 Severability......................................................................................105
12.13 No Third Parties Benefited........................................................................105
12.14 Governing Law and Jurisdiction....................................................................105
12.15 Waiver of Jury Trial..............................................................................105
12.16 Domicile of Loans.................................................................................106
12.17 Domicile of Loans.................................................................................106
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SCHEDULE 1.01(a) Lending Offices
SCHEDULE 1.01(b) Revolving Commitments
SCHEDULE 1.01(c) Subsidiary Guarantors
SCHEDULE 6.07 Plans
SCHEDULE 6.15 Subsidiaries
SCHEDULE 6.24 Insurance
SCHEDULE 8.01 Existing Liens
SCHEDULE 8.04 Existing Indebtedness
SCHEDULE 8.05 Existing Investments
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B Form of Notice of Conversion/Continuation
EXHIBIT C Form of Pledge Agreement
EXHIBIT D Form of Subsidiary Guaranty
EXHIBIT E Form of Guarantor Supplement
EXHIBIT F Form of Security Agreement
EXHIBIT G Form of Total Leverage Ratio Certificate
EXHIBIT H Form of Jones, Day, Reavis & Pogue Opinion
EXHIBIT I Form of White & Case LLP Opinion
EXHIBIT J Form of Compliance Certificate
EXHIBIT K Form of Assignment and Acceptance
EXHIBIT L Form of Intercompany Note
EXHIBIT M Form of Subordination Provisions
EXHIBIT N Form of Solvency Certificate
EXHIBIT O Form of Section 4.01(f)(i) Certificate
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of March 25, 1998, among AMERICAN LAWYER
MEDIA HOLDINGS, INC., a Delaware corporation ("Holdings"), AMERICAN LAWYER
MEDIA, INC., a Delaware corporation (the "Borrower"), the several lenders from
time to time party to this Agreement (the "Banks"), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Issuing Bank, BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent, BANCBOSTON SECURITIES INC., as
Syndication Agent, and BANCAMERICA ROBERTSON STEPHENS and BANCBOSTON SECURITIES
INC., as Arrangers.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth herein,
the Banks are willing to make available to the Borrower the revolving credit
facility provided for herein;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I.
DEFINITIONS
1.01 Defined Terms. As used in this Agreement, the capitalized terms in
the preamble and the recitals hereto shall have the meanings therein given them,
and the following words and terms shall have the meanings specified below:
"Acquired Entity or Business" has the meaning specified in the
definition of "Consolidated Net Income".
"Acquisition" means the acquisition by the Borrower of all the issued
and outstanding shares of capital stock of NLP pursuant to, and in accordance
with the terms of, the Acquisition Agreement.
"Acquisition Agreement" means the Purchase Agreement, dated as of
October 23, 1997, by and among Boston Ventures Limited Partnership IV, Boston
Ventures Limited Partnership IVA, James A. Finkelstein and the Borrower.
"Acquisition Documents" means the Acquisition Agreement and all other
documentation entered into pursuant to the Acquisition Agreement.
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"Additional Security Documents" has the meaning specified in Section
7.11.
"Adjusted Consolidated EBITDA" means, for any period, Consolidated
EBITDA for such period, adjusted by adding thereto up to $10,000,000 of
Development Costs actually incurred by Holdings and its Subsidiaries for such
period, provided that such Development Costs shall only be added back to the
extent that (i) same reduced Consolidated Net Income for such period and (ii) as
of the last day of such period, Holdings and its Subsidiaries had unrestricted
cash and Cash Equivalents on their balance sheet in an amount equal to the
amount of such Development Costs plus $3,000,000 (net of the aggregate
outstanding principal amount of Revolving Loans as of the last day of such
period (other than Revolving Loans incurred to finance a Permitted Acquisition
and to pay the fees and expenses related thereto)).
"Adjusted Consolidated Net Income" means, for any period, Consolidated
Net Income for such period plus, without duplication, the amount of all net
non-cash charges (including, without limitation, depreciation, amortization,
deferred tax expense and non-cash interest expense, but excluding any net
non-cash charges reflected in Adjusted Consolidated Working Capital) and net
non-cash losses which were included in arriving at Consolidated Net Income for
such period less the amount of all net non-cash gains (exclusive of items
reflected in Adjusted Consolidated Working Capital) included in arriving at
Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" means, at any time,
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities at such time.
"Adjustment Date" means (A) the earlier of (x) the date which is 90
days after Holdings' fiscal quarter ending December 31, 1998 and (y) the date
which is two Business Days after Holdings has delivered a Total Leverage Ratio
Certificate to the Administrative Agent in accordance with Section 12.02 as of
the end of a fiscal quarter (the "First Adjustment Date") and (B) after the
First Adjustment Date, the earlier of (x) each date which is 45 days after the
end of a fiscal quarter of Holdings (or, in the case of the fourth fiscal
quarter of Holdings, 90 days after the end of such fiscal quarter) and (y) the
date which is two Business Days after Holdings has delivered a Total Leverage
Ratio Certificate to the Administrative Agent in accordance with Section 12.02
as of the end of a fiscal quarter.
"Administrative Agent" means Bank of America in its capacity as agent
for the Banks hereunder, and any successor agent.
"Administrative Agent's Payment Office" means the address for payments
set forth on the signature page hereto in relation to the Administrative Agent
or such other address as the Administrative Agent may from time to time specify
in accordance with Section 12.02.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person or (ii) that directly or indirectly owns more
than 5% of any class of the capital stock of, or equity interests in, such
Person. A Person shall be deemed to control another Person if such
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Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means Bank of America, in its capacity as Administrative Agent
and as Collateral Agent, in each case for the Banks hereunder, and shall include
any successor to the Agent appointed pursuant to Article XI.
"Agent-Related Persons" has the meaning specified in Section 11.03.
"Aggregate Revolving Commitment" means the combined Revolving
Commitments of the Banks in the initial principal amount of $40,000,000 as such
amount may be reduced from time to time pursuant to this Agreement.
"Agreement" means this Credit Agreement as from time to time amended,
modified or supplemented.
"ALM Acquisition" means Cranberry Partners, LLC (the predecessor of
American Lawyer Media Holdings, Inc.).
"Applicable Excess Cash Flow Percentage" means 50%, provided that so
long as no Default or Event of Default then exists and the Consolidated Total
Leverage Ratio on the respective Excess Cash Flow Payment Date (before giving
effect to any such repayment on such date) is less than 5.00:1.00 as
demonstrated in the Total Leverage Ratio Certificate delivered to the
Administrative Agent in accordance with Section 12.02 at such time, then the
foregoing percentage shall instead be 25%.
"Applicable Margin" means the margin to be added to the Base Rate or
the Eurodollar Rate, as the case may be, in accordance with Section 2.09(a).
"Arranger" means each of BancAmerica Robertson Stephens and BancBoston
Securities Inc.
"Asset Sale" means the direct or indirect sale, lease (other than
operating leases entered into in the ordinary course of business), transfer,
conveyance or other disposition (including, without limitation, dispositions
pursuant to sale and leaseback transactions), in a single transaction or a
series of transactions, by Holdings or any of its Subsidiaries to any Person
(other than to Holdings or any of its Wholly-Owned Subsidiaries) of any property
or assets of Holdings or any of its Subsidiaries, other than sales of assets
pursuant to Sections 8.02(ii), (iii), (vii), (viii), (x) and (xi).
"Assignee" has the meaning specified in Section 12.07(a).
"Assignment and Acceptance" has the meaning specified in Section
12.07(a).
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"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all reasonable
disbursements of internal counsel.
"Bank Affiliate" means an Affiliate of a Bank, including, in the case
of any Bank that is a fund that invests in loans, any other fund that invests in
loans and is managed or advised by the same investment advisor of such Bank or
by an Affiliate of such investment advisor.
"Bank of America" means Bank of America National Trust and
Savings Association, a national banking association, in its individual capacity.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"Banks" has the meaning specified in the preamble hereto i.e. at any
time, each Bank with a Revolving Commitment or with outstanding Revolving Loans.
"Base Rate" means, for any day, the higher of (a) the Reference Rate or
(b) the Federal Funds Rate plus 1/2%, in each case as in effect for such day.
"Base Rate Loan" means each Revolving Loan that bears interest based on
the Base Rate.
"Borrower" has the meaning specified in the preamble hereto.
"Borrower Senior Note Documents" means the Borrower Senior Note
Indenture, the Borrower Senior Notes and all other documents and agreements
executed and delivered pursuant to the Borrower Senior Note Indenture.
"Borrower Senior Note Exchange Offer" means the exchange offer for the
Borrower Senior Notes pursuant to the applicable Borrower Senior Note Documents
for new Borrower Senior Notes which have been registered under the Securities
Act of 1933, as amended.
"Borrower Senior Note Indenture" means the Indenture, dated as December
22, 1997, among the Borrower, the Subsidiary Guarantors and The Bank of New
York, as trustee, as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Borrower Senior Notes" means the Borrower's 9-3/4% senior notes due
2007 (which term includes the senior notes of the Borrower issued as part of the
Borrower Senior Note Exchange Offer).
"Borrowing" means a borrowing hereunder consisting of Revolving Loans
made to the Borrower on the same Borrowing Date by the Banks ratably according
to their respective Revolving Commitment Percentages and in the case of
Eurodollar Loans, having the same
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Interest Periods, provided that any Base Rate Loans incurred pursuant to Section
4.02 shall be considered as part of the related Borrowing of Eurodollar Loans.
"Borrowing Date" means, in relation to any Revolving Loan, the date of
the borrowing of such Revolving Loan as specified in the relevant Notice of
Borrowing.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in San Francisco, Chicago or New York City are
authorized or required by law to close and, if such term is used in relation to
any Eurodollar Loan or the Interest Period therefor, any such day on which
dealings are carried on by and between banks in Dollar deposits in the
applicable interbank market.
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law (but with which a Bank
customarily complies) regarding capital adequacy of any Bank or of any
corporation controlling a Bank.
"Capital Expenditures" means, for any period and with respect to any
Person, the aggregate of all expenditures by such Person and its Subsidiaries
for the acquisition or leasing of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements during
such period) which is capitalized under GAAP on a consolidated balance sheet of
such Person and its Subsidiaries.
"Capital Lease" has the meaning specified in the definition of "Capital
Lease Obligations".
"Capital Lease Obligations" means all monetary obligations of Holdings
or any of its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, is classified as a capital lease ("Capital Lease").
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Banks and the Banks, as collateral for the Letter of Credit Obligations, cash or
deposit account balances pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Issuing Banks (which
documents are hereby consented to by the Banks). Derivatives of such term shall
have corresponding meanings. Cash collateral shall be invested in Cash
Equivalents of a tenor reasonably satisfactory to the Administrative Agent and
as instructed by the Borrower, which Cash Equivalents shall be held in the name
of the Borrower and under the control of the Administrative Agent in a manner
reasonably satisfactory to the Collateral Agent.
"Cash Equivalents" means any or all of the following: (i) obligations
of, or guaranteed as to interest and principal by, the United States Government
maturing within one year after the date on which such obligations are purchased;
(ii) marketable direct obligations issued by any State of the United States or
any political subdivision of any such State or any public instrumentality
thereof maturing within one year after the date on which such obligations
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are purchased and, at the time of such purchase, have one of the two highest
ratings obtainable from either Moody's or S&P; (iii) open market commercial
paper of any corporation (other than Holdings, the Borrower or any of its
Subsidiaries) incorporated under the laws of the United States or any State
thereof or the District of Columbia rated P-1 or its equivalent by Moody's or
A-1 or its equivalent or higher by S&P; (iv) time deposits or certificates of
deposit maturing within one year after the issuance thereof issued by commercial
banks organized under the laws of any country which is a member of the OECD and
having a combined capital and surplus in excess of $500,000,000 or which is a
Bank; (v) repurchase agreements with a term of not more than seven days with
respect to securities described in clause (i) above entered into with an office
of a bank or trust company meeting the criteria specified in clause (iv) above;
(vi) bankers' acceptances with maturities not exceeding one year and overnight
bank deposits in each case with an office of a bank or trust company meeting the
criteria specified in clause (iv) above; and (vii) money market, mutual or
similar funds substantially all of whose investments are comprised of the
investments described in clauses (i) through (vi) above and which have net
assets of not less than $500,000,000 and have at least one of the two highest
ratings obtainable from either Moody's or S&P.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as the same may be amended from time to time, 42
U.S.C. ss. 9601 et seq.
"Change of Control" means (a) the Permitted Holders shall cease to own
on a fully diluted basis in the aggregate at least 51% of the economic and
voting interest in Holdings' capital stock or (b) the Borrower shall cease to be
a direct Wholly-Owned Subsidiary of Holdings or (c) a "change of control" or
similar event shall occur under the Borrower Senior Note Documents or the
Holdings Senior Discount Note Documents.
"Closing Date" means the date on which all conditions precedent set
forth in Sections 5.01 and 5.02 have been satisfied or waived in accordance with
this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated and rulings issued thereunder. Section
references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" means all property with respect to which any security
interest has been granted (or purported to be granted) pursuant to any
Collateral Document, as well as all Obligations which have been Cash
Collateralized.
"Collateral Agent" means the Administrative Agent acting as collateral
agent for the Banks pursuant to the Collateral Documents.
"Collateral Documents" means the Pledge Agreement, the Subsidiary
Guaranty, the Security Agreement, each Additional Security Document and each
Guarantor Supplement.
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"Compliance Certificate" means the compliance certificate in
substantially the form of Exhibit J, to be executed by a Responsible Officer of
Holdings and delivered pursuant to Section 7.02(a).
"Consolidated Current Assets" means, at any time, the consolidated
current assets of Holdings and its Subsidiaries at such time.
"Consolidated Current Liabilities" means, at any time, the consolidated
current liabilities of Holdings and its Subsidiaries at such time, but excluding
the current portion of any Indebtedness under this Agreement and any other
long-term Indebtedness which would otherwise be included therein.
"Consolidated EBIT" means, for any period, Consolidated Net Income for
such period before Consolidated Interest Expense (calculated without regard to
the proviso contained in the definition thereof) and provision for taxes for
such period and without giving effect to (x) any extraordinary gains or losses
or (y) any gains or losses from sales of assets other than from sales of
inventory (including advertising space) sold in the ordinary course of business.
"Consolidated EBITDA" means, for any period, Consolidated EBIT for such
period, adjusted by (x) adding thereto, without duplication, the sum of (i) the
amount of all amortization of goodwill and other intangibles (including debt
issuance and other deferred financing, legal and accounting costs (including
those associated with the Transaction), depreciation and other non-cash charges
to the extent that same were deducted in arriving at Consolidated EBIT for such
period, (ii) for any Measurement Period which includes any portion of Holdings'
fiscal year 1998, up to $1,500,000 of losses in the aggregate that have been
incurred on or after January 1, 1998 and are included in such Measurement Period
to the extent relating to the on-line businesses of the Borrower or any of its
Subsidiaries existing as of January 1, 1998 and to the extent that same were
deducted in arriving at Consolidated EBIT for such period (it being understood
and agreed however, that no more than (x) $800,000 of such losses may be added
back in respect of the Measurement Period ending on June 30, 1998 and (y)
$1,200,000 of such losses may be added back in respect of the Measurement Period
ending on September 30, 1998) and (iii) for any Measurement Period which
includes any portion of Holdings' fiscal year 1997, 1998 or 1999 and in which
the Borrower or any of its Subsidiaries acquired an Acquired Entity or Business
pursuant to a Permitted Acquisition, up to $1,500,000 of losses in the aggregate
that have been incurred by all such Acquired Entities or Businesses and are
included in such Measurement Period to the extent relating to the on-line
businesses of such Acquired Entities or Businesses and to the extent that such
losses were deducted in arriving at Consolidated EBIT for such period, although
no such losses of any Acquired Entity or Business shall be added back pursuant
to this clause (iii) if the revenues generated by the on-line business of such
Acquired Entity or Business accounted for more that 20% of the aggregate
revenues of such Acquired Entity or Business for such Measurement Period and (y)
subtracting therefrom any cash expenses, cash charges or cash payments arising
from any non-cash expenses or non-cash charges that were added back to
Consolidated EBITDA pursuant to clause (x)(i) above in a previous period;
provided that, for the purposes of determining the Consolidated Total Leverage
Ratio, and subject to the further proviso below, (x) in the case of the
Measurement Period ending
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on June 30, 1998, Consolidated EBITDA for such Measurement Period shall be the
sum of (A) Holdings' and its Subsidiaries' pro forma Consolidated EBITDA for the
period July 1, 1997 to December 31, 1997 less Internet Services for such period
(with such amounts to be calculated in the same manner as in the Offering
Memorandum dated December 17, 1997 relating to the Holdings Senior Discount
Notes) plus (B) the actual Consolidated EBITDA for the period January 1, 1998 to
June 30, 1998, as calculated above in this definition and (y) in the case of the
Measurement Period ending on September 30, 1998, Consolidated EBITDA for such
Measurement Period shall be the sum of (A) Holdings' and its Subsidiaries' pro
forma Consolidated EBITDA for the period September 30, 1997 to December 31, 1997
less Internet Services for such period (with such amounts to be calculated in
the same manner as in the Offering Memorandum dated December 17, 1997 relating
to the Holdings Senior Discount Notes) plus (B) the actual Consolidated EBITDA
for the period January 1, 1998 to September 30, 1998, as calculated above in
this definition, and provided, further, that the division of the Borrower
comprised of the assets of Corporate Presentations, Inc. shall be included in
the calculation of Consolidated EBITDA for the Measurement Periods ending June
30, 1998, September 30, 1998 and December 31, 1998 by taking into account the
actual EBITDA of Corporation Presentations, Inc. (calculated in a manner similar
to that set forth above but without making the adjustments described in clauses
(ii) and (iii) above) for the relevant Measurement Period ending on each such
date. Notwithstanding anything to the contrary contained above in this
definition, (x) in no event shall more than $700,000 of Internet Services (as
calculated pursuant to the Offering Memorandum referenced above) in the
aggregate be added back to Consolidated EBIT in respect of the period July 1,
1997 through December 31, 1997 and (y) in no event shall more than $300,000 of
Internet Services (as calculated pursuant to the Offering Memorandum referenced
above) in the aggregate be added back to Consolidated EBIT in respect of the
period October 1, 1997 through December 31, 1997 .
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (x) Adjusted Consolidated EBITDA for such period to (y) Consolidated
Fixed Charges for such period.
"Consolidated Fixed Charges" means, for any period, the sum, without
duplication, of (i) Consolidated Interest Expense for such period, (ii) the
amount of all Capital Expenditures made by Holdings and its Subsidiaries for
such period (other than (x) Capital Expenditures to the extent financed with
equity proceeds, Asset Sale proceeds, insurance proceeds or Indebtedness (other
than with Revolving Loans) and (y) Capital Expenditures made in fiscal year 1998
but only to the extent that such Capital Expenditures were financed with
internally generated funds and so as long as the amount of cash and Cash
Equivalents held by Holdings and its Subsidiaries as of the last day of such
period equals or exceeds the amount of such Capital Expenditures made by
Holdings and its Subsidiaries during fiscal year 1998 (net of the aggregate
outstanding principal amount of Revolving Loans on the last day of such period),
other than Revolving Loans incurred to finance a Permitted Acquisition and to
pay the fees and expenses related thereto), (iii) the scheduled principal amount
of all amortization payments on all Indebtedness (including, without limitation,
the principal component of all Capitalized Lease Obligations but excluding the
Refinancing) of Holdings and its Subsidiaries for such period (as determined on
the first day of such period), (iv) the amount of all cash payments made by
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Holdings and its Subsidiaries in respect of taxes or tax liabilities for such
period and (v) the amount of all Development Costs incurred by Holdings and its
Subsidiaries for such period.
"Consolidated Interest Coverage Ratio" means, for any period, the ratio
of (x) Adjusted Consolidated EBITDA for such period to (y) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" means, for any period, the total
consolidated interest expense of Holdings and its Subsidiaries for such period
(calculated without regard to any limitations on the payment thereof) plus,
without duplication, that portion of Capital Lease Obligations of Holdings and
its Subsidiaries representing the interest factor for such period, provided that
(x) the amortization of debt issuance and deferred financing, legal and
accounting costs with respect to this Agreement, the Borrower Senior Notes and
the Holdings Senior Discount Notes, (y) all fees and expenses incurred in
connection with the Transaction and (z) all interest expense on the Holdings
Senior Discount Notes to the extent accrued prior to December 15, 2002, in each
case shall be excluded from Consolidated Interest Expense to the extent same
would otherwise have been included therein.
"Consolidated Net Income" means, for any period, the net income (or
loss) of Holdings and its Subsidiaries for such period, determined on a
consolidated basis (after any deduction for minority interests), provided that
(i) in determining Consolidated Net Income, the net income of any other Person
which is not a Subsidiary of Holdings or is accounted for by Holdings by the
equity method of accounting shall be included only to the extent of the payment
of cash dividends or distributions by such other Person to Holdings or a
Subsidiary thereof during such period, (ii) the net income of any Subsidiary of
the Borrower shall be excluded to the extent that the declaration or payment of
cash dividends or similar distributions by that Subsidiary of that net income is
not at the date of determination permitted by operation of its charter or any
agreement, instrument or law applicable to such Subsidiary, (iii) the net income
(or loss) of any other Person acquired by such specified Person or a Subsidiary
of such Person in a pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded, and (iv) in determining compliance
with Section 8.09 and in determining the Applicable Margin, the commitment fee
and the letter of credit fee hereunder there shall be included (to the extent
not already included) in determining Consolidated Net Income for any period the
net income (or loss) of any Person, business, property or asset acquired during
such period pursuant to a Permitted Acquisition and not subsequently sold or
otherwise disposed of by Holdings or one of its Subsidiaries during such period
(each such Person, business, property or asset acquired and not subsequently
disposed of during such period, an "Acquired Entity or Business"), in each case
based on the actual net income (or loss) of such Acquired Entity or Business for
the entire period (including the portion thereof occurring prior to such
acquisition).
"Consolidated Total Indebtedness" means, at any time, the principal
amount of all Indebtedness of Holdings and its Subsidiaries at such time
(excluding the Holdings Senior Discount Notes) determined on a consolidated
basis to the extent that such Indebtedness would be accounted for as debt on the
liability side of a balance sheet in accordance with GAAP plus, without
duplication, (i) the maximum amount available to be drawn under all letters of
credit
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(including any Letters of Credit), bankers acceptances and similar obligations
issued for the account of Holdings and its Subsidiaries and all unpaid drawings
or reimbursement obligations in respect thereof, (ii) the principal amount of
all bonds issued by Holdings and its Subsidiaries in connection with workers'
compensation obligations, lease obligations, surety and similar obligations, and
(iii) the amount of all Contingent Obligations of Holdings and its Subsidiaries
determined on a consolidated basis in respect of Indebtedness of other Persons
of the type described above in this definition.
"Consolidated Total Leverage Ratio" means, at any time, the ratio of
(i) Consolidated Total Indebtedness at such time to (ii) Adjusted Consolidated
EBITDA for the Measurement Period then most recently ended.
"Contingent Obligation" means, as applied to any Person, any obligation
of such Person as a result of such Person being a general partner of the other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any direct or indirect liability of that Person with
respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person, whether or not contingent,
(a) to purchase, repurchase or otherwise acquire such primary obligations or any
property constituting direct or indirect security therefor; (b) to advance or
provide funds (i) for the payment or discharge of any such primary obligation,
or (ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor; (c) 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 (d) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect thereof; in
each case, including arrangements wherein the rights and remedies of the holder
of the primary obligation are limited to repossession or sale of certain
property of such Person. The amount of any Contingent Obligation shall be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Contingent Obligation is made (or if less, the stated or
determinable amount of such Contingent Obligation) or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof.
"Continuation Date" means any date on which the Borrower elects to
continue a Eurodollar Loan as a Eurodollar Loan for a further Interest Period in
accordance with the provisions of Section 2.04.
"Contractual Obligations" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Conversion Date" means any date on which the Borrower elects to
convert a Base Rate Loan to a Eurodollar Loan, or a Eurodollar Loan to a Base
Rate Loan, in each case in accordance with the provisions of Section 2.04.
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"Credit Party" means each of Holdings, the Borrower and each Subsidiary
Guarantor.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Development Costs" means those identifiable initial one-time start-up
costs incurred by Holdings and its Subsidiaries in connection with their
implementation (as opposed to an acquisition) of new publications such as books,
newspapers, magazines, web sites, supplements and the like and as may be
reasonably approved by Bank of America (or any successor Administrative Agent)
and the Syndication Agent.
"Disbursement Date" has the meaning specified in Section 3.03(b).
"Dividend" with respect to any Person means that such Person has
declared or paid a dividend or returned any equity capital to its stockholders
as such or made any other distribution, payment or delivery of property or cash
to its stockholders as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class of
its capital stock outstanding on or after the Effective Date (or any options or
warrants issued by such Person with respect to its capital stock), or set aside
any funds for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock of such Person outstanding on or after the
Closing Date (or any options or warrants issued by such Person with respect to
its capital stock). Without limiting the foregoing, "Dividends" with respect to
any Person shall also include all cash payments made or required to be made by
such Person with respect to any stock appreciation rights plans, equity
incentive or achievement plans or any similar plans or setting aside of any
funds for the foregoing purposes.
"Dollars" and "$" each mean lawful money of the United States.
"Domestic Lending Office" has the meaning provided in the definition of
"Lending Office".
"Domestic Subsidiary" means each Subsidiary of Holdings that is
incorporated under the laws of the United States or any State or territory
thereof.
"Eligible Assignee" means and includes (a) a commercial bank or (b) a
financial institution, a fund or other "accredited investor" (as defined in
Regulation D of the Securities Act) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business.
"Environmental Claims" means all actions, suits, proceedings or claims
by any Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources
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damage, or otherwise alleging liability or responsibility for damages (punitive
or otherwise), cleanup, removal, remedial or response costs, restitution, civil
or criminal penalties, injunctive relief, or other type of relief, resulting
from or based upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from property,
whether or not owned by Holdings or any of its Subsidiaries, or (b) any other
circumstances forming the reasonable basis of any violation, or alleged
violation, of any Environmental Law.
"Environmental Law" has the meaning specified in the definition of
"Hazardous Material".
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" means each person (as defined in Section 3(9) of
ERISA) which together with Holdings or a Subsidiary of Holdings would be deemed
to be a "single employer" (i) within the meaning of Section 414(b), (c), (m) or
(o) of the Code or (ii) as a result of Holdings or a Subsidiary of Holdings
being a general partner of such person.
"Eurodollar Lending Office" has the meaning provided in the definition
of "Lending Office".
"Eurodollar Loan" means a Revolving Loan that bears interest based on
the Eurodollar Rate.
"Eurodollar Rate" means, for any Interest Period with respect to
Eurodollar Loans comprising part of the same Borrowing, the per annum rate of
interest (rounded upward to the next 1/100th of 1%) determined by the
Administrative Agent (whose determination shall be conclusive in the absence of
manifest error) as follows:
Eurodollar Rate = Eurodollar Base Rate
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to any Bank) under regulations issued from time to time by
the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as
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"Eurocurrency liabilities"). The Eurodollar Rate for any outstanding
Eurodollar Loans shall be adjusted automatically as of the effective
date of any change in the Eurodollar Reserve Percentage.
"Eurodollar Base Rate" means the interest rate per annum (rounded
upward to the next 1/16 of 1%) at which deposits in Dollars are offered by Bank
of America's applicable Lending Office to major banks in the offshore market at
or about 11:00 a.m. (New York City time), two Business Days before the first day
of the applicable Interest Period in an aggregate amount approximately equal to
the amount of the Loan made by Bank of America with respect to such Eurodollar
Loan and for a period of time comparable to the number of days in the applicable
Interest Period.
The determination of the Eurodollar Reserve Percentage and the
Eurodollar Base Rate by the Administrative Agent shall be conclusive in the
absence of manifest error.
"Event of Default" means any of the events or circumstances specified
in Section 9.01.
"Excess Cash Flow" means, for any period, the remainder of (a) the sum
of (i) Adjusted Consolidated Net Income for such period and (ii) the decrease,
if any, in Adjusted Consolidated Working Capital from the first day to the last
day of such period, minus (b) the sum of (i) the amount of all Capital
Expenditures made by Holdings and its Subsidiaries during such period (other
than Capital Expenditures to the extent financed with equity proceeds, Asset
Sale proceeds or insurance proceeds or Indebtedness (other than with Revolving
Loans), (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of Holdings and its Subsidiaries during such
period (other than repayments of Revolving Loans, provided that repayments of
Revolving Loans shall be deducted in determining Excess Cash Flow if such
repayments were made as a voluntary prepayment with internally generated funds
and were accompanied by a voluntary reduction to the Aggregate Revolving
Commitment)), (iii) the amount of all Permitted Acquisitions made by Holdings
and its Subsidiaries during such period (other than Permitted Acquisitions to
the extent financed with equity proceeds, the issuance of capital stock, Asset
Sale proceeds or Indebtedness (other than with Revolving Loans) and (iv) the
increase, if any, in Adjusted Consolidated Working Capital from the first day to
the last day of such period.
"Excess Cash Payment Date" means the date occurring 90 days after the
last day of each fiscal year of Holdings (beginning with its fiscal year ending
on December 31, 1998).
"Excess Cash Payment Period" means, with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal year
of Holdings.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Investors" means U.S. Equity Partners, L.P., U.S. Equity
Partners (Offshore), L.P. and/or other Affiliates of Wasserstein.
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"Existing Letter of Credit" has the meaning specified in the definition
of Issuing Bank.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day the appropriate rate for such day is not
yet published in H.15(519), the rate for such day will be the arithmetic mean of
the rates for the last transaction in overnight Federal funds arranged prior to
9:00 a.m. (New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Administrative
Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"First Adjustment Date" has the meaning specified in the definition of
the term "Adjustment Date".
"Foreign Subsidiary" means each Subsidiary of Holdings which is not a
Domestic Subsidiary.
"Form 4224" has the meaning specified in Section 4.01(f).
"Form 1001" has the meaning specified in Section 4.01(f).
"Form W-8" has the meaning specified in Section 4.01(f).
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in
general use by significant segments of the U.S. accounting profession, which are
applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and including, in the case of any Bank that is an insurance company, the
National Association of Insurance Commissioners.
"Guaranteed Creditors" means and includes each of the Administrative
Agent, the Collateral Agent, the Issuing Banks, the Banks and, in the case of
any Interest Rate Protection Agreements or Other Hedging Agreements, also any
Affiliate of a Bank which has entered into an Interest Rate Protection Agreement
or Other Hedging Agreement (even if such Bank subsequently ceases to be a Bank
under this Agreement for any reason).
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"Guaranteed Obligations" means (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of the principal
and interest on each note issued by, and Revolving Loans made to, the Borrower
under this Agreement and all reimbursement obligations and unpaid drawings with
respect to Letters of Credit, together with all the other obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities (including, without
limitation, indemnities, fees and interest thereon) of the Borrower to the
Banks, the Administrative Agent, the Issuing Banks and the Collateral Agent now
existing or hereafter incurred under, arising out of or in connection with this
Agreement or any other Loan Document and the due performance and compliance by
the Borrower with all the terms, conditions and agreements contained in the Loan
Documents and (ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) of the Borrower owing under any Interest Rate
Protection Agreement or Other Hedging Agreement entered into by the Borrower
with any Bank or any other Guaranteed Creditor so long as such Bank or affiliate
participates in such Interest Rate Protection Agreement or Other Hedging
Agreement, and their subsequent assigns, if any, whether now in existence or
hereafter arising, and the due performance and compliance with all terms,
conditions and agreements contained therein.
"Guarantor" means Holdings and each Subsidiary Guarantor.
"Guarantor Supplement" means a supplement to the Subsidiary Guaranty,
the Pledge Agreement and the Security Agreement substantially in the form of
Exhibit E, whereby a Subsidiary of the Borrower becomes a party to each such
Loan Document.
"Guaranty" means the guaranty of Holdings pursuant to Article X and the
Subsidiary Guaranty.
"Hazardous Material" means and includes (a) any asbestos,
urea-formaldehyde, PCBs or dioxins or other material composed of or containing
asbestos, PCBs or dioxins, (b) crude oil, any fraction thereof, and any
petroleum product, (c) any natural gas, natural gas liquids, liquefied natural
gas or other natural gas product or synthetic gas, and (d) any hazardous or
toxic waste, substance or material or pollutant or contaminant defined as such
in (or for purposes of) or that may result in the imposition of liability under
any "Environmental Law", defined as the Comprehensive Environmental Response,
Compensation and Liability Act, any so-called "Superfund", or any other
applicable Federal, state, local or other statute, law, ordinance, code, rule,
regulation, order or decree, as now or at any time hereafter in effect,
regulating, relating to, or imposing liability concerning the environment, the
impact of the environment on human health, or any hazardous or toxic waste,
substance or material or pollutant or contaminant.
"Holdings" has the meaning specified in the preamble hereto.
"Holdings Common Stock" has the meaning specified in Section 6.22.
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"Holdings Senior Discount Note Documents" means the Holdings Senior
Discount Note Indenture, the Holdings Senior Discount Notes and all other
documents and agreements executed and delivered pursuant to the Holdings Senior
Discount Note Indenture.
"Holdings Senior Discount Note Exchange Offer" means the exchange offer
for the Holdings Senior Discount Notes pursuant to the applicable Holdings
Senior Discount Note Documents for new Holdings Senior Discount Notes which have
been registered under the Securities Act of 1933, as amended.
"Holdings Senior Discount Note Indenture" means the Indenture, dated as
of December 22, 1997, between Holdings and The Bank of New York, as trustee, as
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Holdings Senior Discount Notes" means Holdings 12-1/4% senior discount
notes due 2008.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
ordinary course purchase price adjustments); (c) all reimbursement or payment
obligations with respect to letters of credit or non-contingent reimbursement or
payment obligations with respect to bankers' acceptances and similar documents;
(d) all obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses; (e) all indebtedness created or
arising under any conditional sale or other title retention agreement or sales
of accounts receivable, in any such case with respect to property acquired by
the Person (even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of such
property); (f) all Capital Lease Obligations; (g) all net obligations with
respect to Interest Rate Protection Agreements and Other Hedging Agreements; (h)
all indebtedness referred to in clauses (a) through (g) above and clause (i)
below secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness,
valued, in the case of Indebtedness not assumed, at the lesser of the amount of
such obligation and the fair market value of the encumbered property or asset;
and (i) all Contingent Obligations. Notwithstanding the foregoing, Indebtedness
shall not include trade payables and accrued expenses incurred by any Person in
accordance with customary practices and in the ordinary course of business of
such Person.
"Indemnified Liabilities" has the meaning provided in Section 12.05.
"Indemnified Person" has the meaning provided in Section 12.05.
"Insolvency Proceeding" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors or similar proceedings, or
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(b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar arrangement in respect of
its creditors generally; in each case undertaken under U.S. Federal, State or
foreign law, including the Bankruptcy Code.
"Intercompany Loan" has the meaning provided in Section 8.05(xi).
"Intercompany Note" means a promissory note in the form of Exhibit L.
"Interest Payment Date" means, (a) with respect to any Base Rate Loan,
the last day of the last calendar month of each calendar quarter and the
Revolving Termination Date, and (b) with respect to any Eurodollar Loan, the
last day of each Interest Period applicable to such Eurodollar Loan and the date
such Eurodollar Loan is repaid or prepaid; provided, however, that if any
Interest Period for any Eurodollar Loan exceeds three months, then also the date
which falls three months after the beginning of such Interest Period and, if
applicable, at three month intervals thereafter shall also be an "Interest
Payment Date".
"Interest Period" means, in relation to any Eurodollar Loan, the period
commencing on the applicable Borrowing Date or any Conversion Date or
Continuation Date with respect thereto and ending on the date one, two, three or
six months thereafter, as selected or deemed selected by the Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation, provided that:
(i) if any Interest Period would otherwise end on a day which 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;
(ii) any Interest Period 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 calendar month which is one, two, three or six months, as
the case may be, after the calendar month in which such Interest Period began;
and
(iii) no Interest Period shall extend beyond the Revolving Termination
Date.
"Interest Rate Protection Agreement" means an interest rate swap, cap,
collar or similar arrangement entered into to hedge interest rate risk (and not
for speculative purposes).
"Investment" has the meaning provided in Section 8.05.
"Issuing Bank" means (i) Bank of America or any Affiliate thereof in
its capacity as issuer of one or more Letters of Credit hereunder and (ii)
BankBoston, N.A. but solely in respect of the Standby Letter of Credit in the
amount of $533,217 issued for the benefit of 345 Park Avenue South, L.L.C., and
expiring on December 1, 1998 (the "Existing Letter of Credit"). Upon the
termination of the Existing Letter of Credit and the payment of all amounts (if
any) owing in respect thereof, BankBoston, N.A. shall cease to be an Issuing
Bank hereunder.
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"Lending Office" means, with respect to any Bank, the office or offices
of such Bank specified as its "Lending Office", "Domestic Lending Office" or
"Eurodollar Lending Office", as the case may be, on Schedule 1.01(a), or such
other office or offices of the Bank as it may from time to time notify the
Borrower and the Agent.
"Letter of Credit" means any letter of credit issued by the Issuing
Bank pursuant to Article III.
"Letter of Credit Amendment Application" means an application form for
amendment of outstanding standby or commercial documentary letters of credit as
shall at any time be in use by the respective Issuing Bank, as such Issuing Bank
shall request.
"Letter of Credit Application" means an application form for issuances
of standby or commercial documentary letters of credit as shall at any time be
in use at the respective Issuing Bank, as such Issuing Bank shall request.
"Letter of Credit Borrowing" means an extension of credit resulting
from a drawing under any Letter of Credit which shall not have been reimbursed
on or before the Business Day following the respective Disbursement Date when
made nor converted into a Borrowing of Revolving Loans under Section 3.03(b).
"Letter of Credit Commitment" means the aggregate commitment of the
Issuing Banks to issue Letters of Credit, the Letter of Credit Obligations in
respect thereof not to exceed in aggregate amount on any date the lesser of (i)
the Aggregate Revolving Commitment on such date and (ii) $2,500,000.
"Letter of Credit Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all outstanding Letter of Credit Borrowings.
"Letter of Credit Related Documents" means the Letters of Credit, the
Letter of Credit Applications, the Letter of Credit Amendment Applications and
any other document relating to any Letter of Credit, including any of the
respective Issuing Bank's standard form documents for letter of credit
issuances.
"Level I" has the meaning specified in Section 2.09(a)(ii).
"Level II" has the meaning specified in Section 2.09(a)(ii).
"Level III" has the meaning specified in Section 2.09(a)(ii).
"Level IV" has the meaning specified in Section 2.09(a)(ii).
"Level V" has the meaning specified in Section 2.09(a)(ii).
"Level VI" has the meaning specified in Section 2.09(a)(ii).
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"Lien" means any interest in any real or personal property or fixture
which secures payment or performance of any obligation and shall include any
mortgage, lien, pledge, encumbrance, charge or other security interest of any
kind, whether arising under a Security Instrument or as a matter of law,
judicial process or otherwise, including the retained security title of a
conditional vendor or lessor.
"Loan Documents" means this Agreement (including the guaranty of
Holdings set forth in Article X), each Collateral Document and all other
agreements, instruments, notes, certificates or other documents evidencing,
guaranteeing or securing the Revolving Loans, Letter of Credit Borrowings or the
other obligations of Holdings, the Borrower or any Subsidiary Guarantor
hereunder or under any Collateral Document.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means, relative to any occurrence of whatever
nature (including any adverse determination in any litigation, arbitration or
governmental investigation or proceeding), a material adverse effect on:
(a) the operations, business, assets, properties, liabilities or
condition (financial or otherwise) of the Borrower or of Holdings and its
Subsidiaries taken as a whole; or
(b) the rights and remedies of the Administrative Agent, the Collateral
Agent and the Banks under this Agreement or under any other Loan Document.
"Measurement Period" means (i) at any time on or prior to September 30,
1998 for purposes of determining compliance with Sections 8.07 and 8.08, the
period from January 1, 1998 through the last day of Holdings' fiscal quarter
then last ended (taken as one accounting period) and (ii) at any time thereafter
and for all other purposes of this Agreement, each period of four consecutive
fiscal quarters of Holdings (taken as one accounting period).
"Moody's" means Moody's Investors Service, Inc.
"Net Debt Proceeds" means, with respect to any incurrence of
Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such
Indebtedness for borrowed money.
"Net Insurance Proceeds" means, with respect to any Recovery Event, the
cash proceeds (net of reasonable costs and taxes incurred in connection with
such Recovery Event) received by the respective Person in connection with the
respective Recovery Event.
"Net Sale Proceeds" means, in connection with any Asset Sale, the cash
proceeds (including any cash payments received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received in cash) of such Asset Sale net of (i) reasonable transaction costs
(including any underwriting, brokerage or other customary selling
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commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith actually incurred),
(ii) required debt payments (other than pursuant hereto), (iii) taxes estimated
to be paid as a result of such Asset Sale and (iv) any portion of such cash
proceeds which Holdings determines in good faith should be reserved for
post-closing adjustments or liabilities (to the extent Holdings delivers to the
Banks a certificate signed by a Responsible Officer of Holdings as to such
determination).
"NLP" means National Law Publishing Company, Inc., a Delaware
corporation.
"Notice of Borrowing" means a notice given by the Borrower to the
Administrative Agent pursuant to Section 2.03(a), in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice given by the
Borrower to the Administrative Agent pursuant to Section 2.04(b), in
substantially the form of Exhibit B.
"Obligations" means all Revolving Loans, Letter of Credit Borrowings
and other indebtedness, advances, debts, liabilities, obligations, indemnities,
expenses (including, without limitation, Attorney Costs), covenants and duties,
of any kind or nature, owing by Holdings, the Borrower or any Subsidiary
Guarantor to any Bank, the Administrative Agent, the Collateral Agent or any
Issuing Banks in connection with this Agreement or any other Loan Document, in
each case whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising, and however acquired (including those
acquired by assignment) or arising and whether or not for the payment of money
or evidenced by any note, guarantee or other instrument.
"OECD" means the Organization for Economic Cooperation and Development.
"OLD ALM" means American Lawyer Media, L.P., the previous owner of the
assets acquired by Holdings in the ALM Acquisition.
"Originating Bank" has the meaning provided in Section 12.07(d).
"Other Hedging Agreement" means any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"Other Taxes" has the meaning specified in Section 4.01(b).
"Participant" has the meaning specified in Section 12.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" has the meaning specified in Section 8.02(ix).
"Permitted Holders" means Wasserstein and its Affiliates.
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"Permitted Liens" has the meaning provided in Section 8.01.
"Person" means any natural person, corporation, firm, trust,
partnership, limited liability company, business trust, association, government,
governmental agency or authority, or any other entity, whether acting in an
individual, fiduciary, or other capacity.
"Plan" means any pension plan as defined in Section 3(2) of ERISA,
which is maintained or contributed to by (or to which there is an obligation to
contribute of) Holdings or a Subsidiary of Holdings or an ERISA Affiliate, and
each such plan for the five year period immediately following the latest date on
which Holdings or a Subsidiary of Holdings or an ERISA Affiliate maintained,
contributed to or had an obligation to contribute to such plan.
"Pledge Agreement" means the Pledge Agreement in the form of Exhibit C,
as amended, modified or supplemented from time to time in accordance with the
terms thereof and hereof.
"Pledged Securities" has the meaning specified in the Pledge Agreement.
"Pro Forma Balance Sheet" means the pro forma unaudited consolidated
balance sheet of Holdings and its Subsidiaries as of December 31, 1997 after
giving effect to the Transaction and the financing therefor, which pro forma
consolidated balance sheet has been prepared in accordance with GAAP.
"Projections" means the projections prepared by Holdings, dated January
30, 1998 and furnished to the Banks prior to the Closing Date.
"Qualified Holdings Preferred Stock" means any preferred stock of
Holdings so long as the terms of any such preferred stock (i) do not contain any
mandatory put, redemption, repayment, sinking fund or other similar provision,
(ii) do not require the cash payment of dividends, (iii) do not contain any
covenants, (iv) do not grant the holders thereof any voting rights except for
(x) voting rights required to be granted to such holders under applicable law
and (y) limited customary voting rights on fundamental matters such as mergers,
consolidations, sales of all or substantially all of the assets of Holdings, or
liquidations involving Holdings, and (v) are otherwise reasonably satisfactory
to Bank of America (or any successor Administrative Agent) and the Syndication
Agent.
"Recovery Event" means the receipt by Holdings or any of its
Subsidiaries of any cash insurance proceeds or condemnation awards payable by
reason of theft, loss, physical destruction, damage, taking or any other similar
event with respect to any property or assets of Holdings or any of its
Subsidiaries.
"Reference Rate" means the rate of interest publicly announced from
time to time by Bank of America in San Francisco as its "reference rate". It is
a rate set by Bank of America based upon various factors, including Bank of
America's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above or below such announced rate. Any change in the Reference Rate
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announced by Bank of America shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Register" has the meaning specified in Section 2.02.
"Regulation D" means Regulation D of the Federal Reserve Board as from
time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.
"Replaced Bank" has the meaning specified in Section 4.08(b).
"Replacement Bank" has the meaning specified in Section 4.08(b).
"Reportable Event" means, an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC Regulations issued under Section 4043 of
ERISA.
"Required Banks" means Banks, the sum of whose Revolving Commitments
(or after the termination thereof, outstanding Revolving Loans and Revolving
Commitment Percentages of Letter of Credit Obligations) represent at least 51%
of the Aggregate Revolving Commitment (or after the termination thereof, the sum
of the then total outstanding Revolving Loans and the aggregate Revolving
Commitment Percentages of the total outstanding Letter of Credit Obligations at
such time).
"Requirement of Law" means, as to any Person, any law (statutory or
common, including, without limitation, any Environmental Law and ERISA), treaty,
rule or regulation or determination of a court or of a 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 property is subject.
"Responsible Officer" means, for Holdings, the Borrower or any
Subsidiary thereof, its chairman of the board, its chief executive officer, its
president, any of its executive vice presidents, its chief financial officer,
but in any event, with respect to financial matters, the president or the chief
financial officer of Holdings.
"Revolving Commitment" means, for each Bank, the amount set forth
opposite such Bank's name in Schedule 1.01(b) directly below the column entitled
"Revolving Commitment," as such amount may be modified from time to time
pursuant to the terms hereof.
"Revolving Commitment Percentage" of any Bank at any time means a
fraction (expressed as a percentage) the numerator of which is the Revolving
Commitment of such Bank at such time and the denominator of which is the
Aggregate Revolving Commitment at such time, provided that if the Revolving
Commitment Percentage of any Bank is to be determined after the Aggregate
Revolving Commitment has been terminated, then the Revolving Commitment
Percentages of the Banks shall be determined immediately prior (and without
giving effect) to such termination.
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"Revolving Loan" means a loan by a Bank to the Borrower under Section
2.01, which may be a Eurodollar Loan or a Base Rate Loan.
"Revolving Termination Date" means the earlier to occur of (a) March
31, 2003 and (b) the date on which the Revolving Commitments shall terminate in
accordance with the provisions hereof.
"S&P" means Standard & Poor's Ratings Service, a division of McGraw
Hill, Inc.
"Section 4.01(f)(i) Certificate" has the meaning specified in Section
4.01(f).
"Security Agreement" means the Security Agreement in the form of
Exhibit F, as amended, modified or supplemented from time to time in accordance
with the terms thereof and hereof.
"Security Instrument" means any security agreement, chattel mortgage,
assignment, pledge agreement, financing or similar statement or notice,
continuation statement, other agreement or instrument, or amendment or
supplement to any thereof, providing for, evidencing or perfecting any security
interest.
"Significant Subsidiary" has the meaning set forth in the Holdings
Senior Discount Note Indenture or in the Borrower Senior Note Indenture.
"Specified Default" means (i) any Default under Section 9.01(a),
9.01(f) or 9.01(g), and (ii) any Event of Default.
"Standby Letter of Credit" has the meaning specified in Section
3.01(a).
"Subsidiary" of a Person means any corporation, association,
partnership or other business entity of which more than 50% of the voting stock
or other voting equity interests (in the case of Persons other than
corporations) is owned or controlled directly or indirectly by such Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
"Subsidiary Guarantor" means each of the Domestic Subsidiaries of the
Borrower listed on Schedule 1.01(c) and each other Domestic Subsidiary of the
Borrower (and, to the extent Section 7.12 is operative, each Foreign Subsidiary
of the Borrower) that hereafter executes and delivers a Guarantor Supplement.
"Subsidiary Guaranty" means the Guaranty in the form of Exhibit E, as
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Syndication Agent" means BancBoston Securities Inc.
"Taxes" has the meaning specified in Section 4.01(a).
"Total Leverage Ratio Certificate" means a certificate duly executed by
a Responsible of Holdings, substantially in the form of Exhibit G (with such
changes thereto as
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may be agreed upon from time to time by the Administrative Agent and Holdings),
and including therein, among other things, calculations supporting the
information contained therein.
"Trade Letter of Credit" has the meaning specified in Section 3.01(a).
"Transaction" means, collectively, (i) the Acquisition and the related
refinancing of certain indebtedness of the Borrower, NLP and their Subsidiaries,
(ii) the issuance of the Borrower Senior Notes as part of the Acquisition, (iii)
the issuance of the Holdings Senior Discount Notes as part of the Acquisition,
(iv) the $73,500,000 in equity contributions received by Holdings as part of the
Acquisition and (v) the entering into of this Agreement and the occurrence of
the Closing Date.
"Transferee" has the meaning specified in Section 12.08.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if any, by
which the actuarial present value of the accumulated plan benefits under the
Plan as of the close of its most recent plan year, determined in accordance with
actuarial assumptions at such time consistent with Statement of Financial
Accounting Standards No. 87, exceeds the market value of the assets allocable
thereto.
"United States" and "U.S." each means the United States of America.
"Voting Stock" of any Person as of any date means the capital stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Wasserstein" means Wasserstein Perella Group Inc., a Delaware
corporation.
"WP Management" means WP Management Partners, L.L.C., a Delaware
limited liability company.
"Wholly-Owned Subsidiary" means, as to any Person, (i) any corporation
100% of whose capital stock (other than director's or other qualifying shares)
is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries
of such Person and (ii) any partnership, association or other entity in which
such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a
100% equity interest at such time.
1.02 Other Definitional Provisions.
(a) Defined Terms. Unless otherwise specified herein or therein, all
terms defined in this Agreement shall have such defined meanings when used in
any certificate or other document made or delivered pursuant hereto. The meaning
of defined terms shall be equally applicable to the singular and plural forms of
the defined terms. Terms (including uncapitalized terms) not otherwise defined
herein and that are defined in the UCC shall have the meanings therein
described.
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(b) The Agreement. The words "hereof", "herein", "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) Certain Common Terms.
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
i (ii) The terms "including" or "include"
are not limiting and mean "including without limitation" or "include
without limitation".
(d) Performance; Time. Subject to the definition of
the term "Interest Period" in Section 1.01, whenever any performance obligation
hereunder shall be stated to be due or required to be satisfied on a day other
than a Business Day, such performance shall be made or satisfied on the next
succeeding Business Day. In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding"; and the word "through"
means "to and including." If any provision of this Agreement refers to any
action taken or to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be interpreted to encompass any and all means,
direct or indirect, of taking, or not taking, such action.
(e) Contracts. Unless otherwise expressly provided
herein, references to agreements and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document.
(f) Laws. References to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending or replacing such statute or regulation.
1.03 Accounting Principles. Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted in accordance with GAAP.
Unless the context otherwise clearly requires, all financial computations
required under this Agreement shall be made in accordance with generally
accepted accounting principles applied in a manner consistent with those in
effect on December 31, 1997.
ARTICLE II.
THE CREDIT FACILITIES
2.01 Amounts and Terms of Commitments.
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Each Bank severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Loans to the Borrower from
time to time on any Business Day during the period from the Closing
Date to the Revolving Termination Date, in an aggregate amount not to
exceed at any time outstanding the amount of such Bank's Revolving
Commitment; provided, however, that, after giving effect to any
Borrowing, the aggregate principal amount of all outstanding Revolving
Loans plus the aggregate amount of all outstanding Letter of Credit
Obligations (exclusive of unpaid drawings under any Letter of Credit
which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans), shall not
exceed the Aggregate Revolving Commitment. Within such limits, and
subject to the other terms and conditions hereof, the Borrower may
borrow Revolving Loans under this Section 2.01, prepay pursuant to
Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01.
2.02 Loan Accounts and Register; Notes.
(a) The Revolving Loans made by, and the Revolving Commitments
of, each Bank shall be evidenced by one or more loan accounts
maintained by such Bank and the Register maintained by the
Administrative Agent in the ordinary course of business. The Register
maintained by the Administrative Agent shall, in the event of a
discrepancy between the entries in the Administrative Agent's books and
any Bank's books relating to such matters, be controlling and, absent
manifest error, shall be conclusive as to the amount of the Revolving
Loans made by the Banks to the Borrower, the interest and payments
thereon and any other amounts owing in respect of this Agreement. Any
failure to make a notation in the Register or any such loan account or
any error in doing so shall not limit or otherwise affect the
obligations of the Borrower hereunder to pay any amount owing with
respect to the Revolving Loans. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for
purposes of this Section 2.02, to maintain a register (the "Register")
on which it will record the Revolving Commitments from time to time of
each of the Banks, the Revolving Loans made by each of the Banks and
each repayment in respect of the principal amount of the Revolving
Loans of each Bank. With respect to any Bank, the transfer of the
Revolving Commitments of such Bank and the rights to the principal of,
and interest on, any Revolving Loan made pursuant to such Revolving
Commitments shall not be effective until such transfer is recorded on
the Register maintained by the Administrative Agent with respect to
ownership of such Revolving Commitments and Revolving Loans and prior
to such recordation all amounts owing to the transferor with respect to
such Revolving Commitments and Revolving Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or
part of any Revolving Commitments and Revolving Loans shall be recorded
by the Administrative Agent on the Register only upon the acceptance by
the Administrative Agent of a properly executed and delivered
Assignment and Acceptance pursuant to Section 12.07(a). The Borrower
agrees to indemnify the Administrative Agent from and against any and
all losses, claims, damages and liabilities of whatsoever nature which
may be imposed on, asserted against or incurred by the Administrative
Agent in performing its duties under this Section 2.02.
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(b) If requested by any Bank for purposes of Section 12.07(e),
the Borrower shall execute and deliver to such Bank (and deliver a copy
thereof to the Administrative Agent) one or more promissory notes
evidencing the Revolving Loans owing to such Bank pursuant to this
Agreement. Any such note shall be in a form prescribed by the Borrower
and the Administrative Agent and shall be entitled to all of the rights
and benefits of this Agreement and the other Loan Documents.
2.03 Procedure for Borrowing.
(a) Each Borrowing of Revolving Loans (other than a Borrowing
of Revolving Loans pursuant to Section 3.03(b)) shall be made upon the
Borrower's irrevocable written notice delivered to the Administrative
Agent in accordance with Section 12.02 in the form of a Notice of
Borrowing (which notice must be received by the Administrative Agent
(i) prior to 11:30 a.m. (New York City time) not less than three
Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans and (ii) prior to 11:30 a.m. (New York City time) on
the requested Borrowing Date, in the case of Base Rate Loans,
specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate minimum principal amount of $1,000,000 or any
multiple of $50,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) whether the Borrowing is to be comprised of
Eurodollar Loans or Base Rate Loans; and
(D) the duration of the Interest Period, if any,
applicable to such Revolving Loans included in such notice. If
the Notice of Borrowing shall fail to specify the duration of
the Interest Period for any Borrowing comprised of Eurodollar
Loans, such Interest Period shall be one month.
(b) Upon receipt of the Notice of Borrowing, the
Administrative Agent will promptly notify each Bank of the contents
thereof and of the amount of such Bank's Revolving Commitment
Percentage of the requested Borrowing.
(c) Each Bank will make the amount of its Revolving Commitment
Percentage of each Borrowing available to the Administrative Agent for
the account of the Borrower at the Administrative Agent's Payment
Office by 2:00 p.m. (New York City time) on the Borrowing Date
requested by the Borrower in funds immediately available to the
Administrative Agent. Unless any applicable condition of Article V has
not been satisfied, the proceeds of all such Revolving Loans (other
than Revolving Loans made pursuant to Section 3.03(b)) will then be
made available to the Borrower by the Administrative Agent by wire
transfer in accordance with written instructions provided to the
Administrative Agent by the Borrower.
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(d) Upon the occurrence and during the continuance of any
Specified Default, the Borrower shall not have the right to elect (and
shall not elect) to have a Revolving Loan be made as a Eurodollar Loan.
(e) After giving effect to any Borrowing, there shall not be
more than eight different Interest Periods in effect in respect of all
Revolving Loans.
2.04 Conversion and Continuation Elections for Revolving
Borrowings.
(a) The Borrower may upon irrevocable written notice to the
Administrative Agent in accordance with paragraph (b) below:
(i) elect to convert on any Business Day, any Base
Rate Loans (or any part thereof in an amount of not less than
$1,000,000 or an integral multiple of $50,000 in excess
thereof) into Eurodollar Loans;
(ii) elect to convert on the last day of the Interest
Period with respect thereto, any Eurodollar Loans (or any part
thereof in an amount of not less than $1,000,000 or an
integral multiple of $50,000 in excess thereof) into Base Rate
Loans; or
(iii) elect to continue on the last day of the
Interest Period with respect thereto, any Eurodollar Loans (or
any part thereof in an amount of not less than $1,000,000 or
an integral multiple of $50,000 in excess thereof);
provided, however, (x) that if the aggregate amount of a Borrowing
comprised of Eurodollar Loans shall have been reduced, by payment,
prepayment or conversion of part thereof to be less than $1,000,000,
the Eurodollar Loans comprising such Borrowing shall automatically
convert into Base Rate Loans, and on and after such date the right of
the Borrower to continue such Loans as, and convert such Loans into,
Eurodollar Loans shall terminate and (y) Eurodollar Loans with Interest
Periods of more than one month may not be selected until the 90th day
after the Closing Date.
(b) The Borrower shall deliver a Notice of Conversion/Continuation in
accordance with Section 12.02 to be received by the Administrative
Agent not later than (i) 11:30 a.m. (New York City time) not less than
three Business Days in advance of the Conversion Date or Continuation
Date, if the Revolving Loans are to be converted into or continued as
Eurodollar Loans and (ii) no later than 11:30 a.m. (New York City time)
on the requested Conversion Date, if the Revolving Loans are to be
converted into Base Rate Loans, specifying:
(A) the Revolving Loans to be converted or continued;
(B) the proposed Conversion Date or Continuation Date
which shall be a Business Day;
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(C) the aggregate principal amount of Revolving Loans
to be converted or continued;
(D) the nature of the proposed conversion or
continuation; and
(E) the duration of the requested Interest Period, if
applicable.
(c) If upon the expiration of any Interest Period applicable
to Eurodollar Loans, the Borrower has failed to select timely a new
Interest Period or the Borrower is not permitted to elect a new
Interest Period, such Revolving Loans shall automatically convert into
Base Rate Loans.
(d) Upon receipt of a Notice of Conversion/ Continuation, the
Administrative Agent will promptly notify each Bank of the contents
thereof, or, if no timely notice is provided by the Borrower, the
Administrative Agent will promptly notify each such Bank of the details
of any automatic conversion. All conversions and continuations shall be
made pro rata according to the respective outstanding principal amounts
of the Revolving Loans with respect to which the notice was given.
(e) Upon the occurrence and during the continuance of any
Specified Default, the Borrower shall not elect to have a Revolving
Loan converted into or continued as a Eurodollar Loan.
(f) Notwithstanding any other provision contained in this
Agreement, after giving effect to any conversion or continuation of any
Revolving Loans, there shall not be more than eight different Interest
Periods in effect in respect of all Revolving Loans.
2.05 Reduction and Termination of Commitments.
(a) The Borrower may, upon not less than three Business Days'
prior notice to the Administrative Agent, terminate the Aggregate
Revolving Commitment (including the Letter of Credit Commitment) or
permanently reduce the Aggregate Revolving Commitment (including the
Letter of Credit Commitment) by an aggregate minimum amount of
$5,000,000 or any multiple of $100,000 in excess thereof; provided,
however, that no such reduction or termination shall be permitted if
after giving effect thereto and to any prepayment of the Revolving
Loans made on the effective date thereof, (i) the then outstanding
principal amount of the Revolving Loans plus the outstanding Letter of
Credit Obligations would exceed the Aggregate Revolving Commitment then
in effect or (ii) the aggregate amount of Letter of Credit Obligations
would exceed the Letter of Credit Commitment then in effect; and,
provided further, that once reduced in accordance with this Section
2.05, the Aggregate Revolving Commitment (including the Letter of
Credit Commitment) may not be increased.
(b) The Aggregate Revolving Commitment (and the Revolving
Commitment of each Bank) shall terminate in its entirety on April 15,
1998 unless the Closing Date shall have occurred on or prior to such
date.
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(c) The Aggregate Revolving Commitment (and the Revolving
Commitment of each Bank) shall terminate in its entirety on the
Revolving Termination Date.
(d) The Aggregate Revolving Commitment (and the Revolving
Commitment of each Bank) shall terminate in its entirety on the date on
which a Change of Control occurs.
(e) On each date upon which Holdings or any of its
Subsidiaries receives any proceeds from any incurrence by Holdings or
any of its Subsidiaries of Indebtedness for borrowed money (other than
Indebtedness for borrowed money permitted to be incurred under Section
8.04 as in effect on the Closing Date), the Aggregate Revolving
Commitment shall be permanently reduced by an amount equal to 100% of
the Net Debt Proceeds of the respective incurrence of Indebtedness.
Nothing in this clause (e) shall be deemed to permit the issuance of
any Indebtedness not otherwise permitted under this Agreement.
(f) On each date upon which Holdings or any of its
Subsidiaries receives any proceeds from any Asset Sale, the Aggregate
Revolving Commitment shall be permanently reduced by an amount equal to
100% of the Net Sale Proceeds from such Asset Sale, provided that with
respect to no more than $5,000,000 in the aggregate of such Net Sale
Proceeds in any fiscal year of Holdings, such Net Sale Proceeds shall
not give rise to a reduction pursuant to this clause (f) to the extent
that no Default or Event of Default then exists and Holdings has
delivered a certificate of one of its Responsible Officers to the
Administrative Agent on or prior to such date stating that such Net
Sale Proceeds shall be used to purchase replacement assets used or to
be used in the Borrower's or any of its Subsidiaries' business within
265 days following the date of such Asset Sale (which certificate shall
set forth the estimates of the proceeds to be so expended), and
provided further, that if all or any portion of such Net Sale Proceeds
are not so reinvested within such 265 day period (or such earlier date,
if any, as the Board of Directors of the Borrower determines not to so
reinvest such Net Sale Proceeds), the Aggregate Revolving Commitment
shall be permanently reduced on the last day of such period (or such
earlier date, as the case may be) by an amount equal to such remaining
portion. Nothing in this clause (f) shall be deemed to permit any Asset
Sale not otherwise permitted under this Agreement.
(g) Within 10 days following each date upon which Holdings or
any of its Subsidiaries receives any proceeds from any Recovery Event,
the Aggregate Revolving Commitment shall be permanently reduced by an
amount equal to 100% of the Net Insurance Proceeds from such Recovery
Event, provided that so long as no Default or Event of Default then
exists and such proceeds from such Recovery Event do not exceed
$2,000,000, such proceeds shall not give rise to a reduction pursuant
to this clause (g) on such date to the extent that Holdings has
delivered a certificate of one of its Responsible Officers to the
Administrative Agent on or prior to such date stating that such
proceeds shall be used to replace or restore any properties or assets
in respect of which such proceeds were paid within 265 days following
the date of receipt of such proceeds (which
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certificate shall set forth the estimates of the proceeds to be so
expended), and provided further, that (i) if the amount of such
proceeds exceeds $2,000,000, then the entire amount of such proceeds
and not just the portion in excess of $2,000,000 shall be applied as
provided above in this clause (g), and (ii) if all or any portion of
such proceeds are not contractually committed to be used within 180
days after the date of receipt of such proceeds and are not actually
used within 265 days after the date of receipt of such proceeds to
effect such restoration or replacement (or such earlier date, if any,
as the Board of Directors of the Borrower determines not to so reinvest
such Net Insurance Proceeds), the Aggregate Revolving Commitment shall
be permanently reduced on the last day of such 180-day or 265-day
period, as the case may be (or such earlier date, as the case may be),
by an amount equal to such remaining portion.
(h) On each Excess Cash Payment Date, the Aggregate Revolving
Commitment shall be permanently reduced by an amount equal to the
Applicable Excess Cash Flow Percentage of the Excess Cash Flow for the
relevant Excess Cash Payment Period; provided, however, that no such
reduction pursuant to this clause (h) shall be required to the extent
that no Default or Event of Default then exists and the Consolidated
Total Leverage Ratio on such Excess Cash Payment Date (before giving
effect to any such reduction on such date) is less than 4.00:1.00 as
demonstrated in the Total Leverage Ratio Certificate delivered to the
Administrative Agent in accordance with Section 12.02 at such time.
(i) Any reduction of the Aggregate Revolving Commitment and
the Letter of Credit Commitment pursuant to this Section 2.05 shall be
applied pro rata to each Bank's Revolving Commitment in accordance with
such Bank's Revolving Commitment Percentage. The amount of any such
reduction of the Aggregate Revolving Commitment shall not be applied to
the Letter of Credit Commitment unless otherwise specified by the
Borrower or required by the definition thereof. The Administrative
Agent shall promptly notify the Banks of any reduction or termination
of the Aggregate Revolving Commitment.
2.06 Voluntary Prepayments.
(a) The Borrower may, prior to 11:30 a.m. (New York City
time), upon at least three Business Days' notice to the Administrative
Agent in the case of Eurodollar Loans, and prior to 11:30 a.m. (New
York City time), upon same day notice on any Business day in the case
of Base Rate Loans, ratably prepay Revolving Loans, in whole or in part
in amounts of $100,000 or an integral multiple of $50,000 in excess
thereof.
(b) Any notice of prepayment delivered pursuant to this
Section 2.06 shall specify the date and amount of such prepayment, the
type of Revolving Loans to be prepaid, including whether such
prepayment is of Base Rate Loans or Eurodollar Loans or any combination
thereof. Each such notice shall be irrevocable by the Borrower and the
Administrative Agent will promptly notify each Bank thereof and of such
Bank's Revolving Commitment Percentage of such prepayment. If such
notice is given by the
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Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such date on
the amount prepaid and the amounts, if any, required pursuant to
Section 4.04; provided that interest shall be paid in connection with
any such prepayment of Base Rate Loans (other than a prepayment in
full) on the next occurring Interest Payment Date.
2.07 Mandatory Prepayments.
(a)(i) If on any date the aggregate unpaid principal amount of
outstanding Revolving Loans plus the outstanding Letter of Credit
Obligations (to the extent not Cash Collateralized pursuant to clause
(ii) below or as provided for in Section 3.07) exceeds the Aggregate
Revolving Commitment the Borrower shall immediately prep