Exhibit 10.12
SIXTH AMENDMENT TO CREDIT AGREEMENT
AND FIRST AMENDMENT TO FORBEARANCE AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO FORBEARANCE
AGREEMENT (this "Agreement") is entered into as of March 14, 2002, by and among
Ziff ▇▇▇▇▇ Media Inc., a Delaware corporation (the "Borrower"), CIBC World
Markets Corp., as lead arranger and bookrunner (the "Lead Arranger"), Bankers
Trust Company, as syndication agent (the "Syndication Agent"), Fleet National
Bank, as documentation agent (the "Documentation Agent"), Canadian Imperial
Bank of Commerce, as administrative agent (the "Administrative Agent") and the
other Credit Parties party hereto (the "Credit Parties").
W I T N E S S E T H :
WHEREAS, the Borrower, the Lead Arranger, the Syndication Agent, the
Documentation Agent, the Administrative Agent and the Credit Parties are
parties to that certain Credit Agreement dated as of April 5, 2000, as amended
by that certain First Amendment to Credit Agreement dated as of June 12, 2000,
as amended by that certain Second Amendment to Credit Agreement dated as of
July 19, 2000, as amended by that certain Third Amendment to Credit Agreement
dated as of January 22, 2001, as amended by that certain Fourth Amendment to
Credit Agreement and Reaffirmation Agreement dated as of July 13, 2001, as
amended by that certain Fifth Amendment to Credit Agreement and Forbearance
Agreement dated as of January 14, 2002 (as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested, and the Lead Arranger, the Syndication
Agent, the Documentation Agent, the Administrative Agent and the Credit Parties
have agreed, (a) to extend the expiration date with respect to their agreement
to forbear from the exercise of their remedies available under the Credit
Agreement and the other Loan Documents on account of the Specified Defaults and
(b) to amend the Credit Agreement, in each case, to the extent set forth herein;
NOW THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree that all capitalized terms used herein shall have the meanings ascribed
thereto in the Credit Agreement, as amended hereby, except as otherwise defined
or limited herein, and further agree, subject to the conditions precedent to
this Agreement hereinafter set forth, as follows:
1. Amendments to Article 1.
(a) Article 1 of the Credit Agreement, Definitions, is hereby modified
and amended by adding the following new definitions in appropriate
alphabetical order:
" 'Sixth Amendment' shall mean that certain Sixth Amendment to Credit
Agreement and First Amendment to Forbearance Agreement dated as of the
Sixth Amendment Date among the Borrower, the Lead Arranger, the
Syndication Agent, the Documentation Agent, the Administrative Agent and
the other Credit Parties party thereto.
" 'Sixth Amendment Date' shall mean March 14, 2002."
(b) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended by deleting the definition of "Forbearance Period" in
its entirety and by substituting the following in lieu thereof:
" 'Forbearance Period' shall have the meaning assigned to such term
in the Fifth Amendment as amended and extended by the terms of the Sixth
Amendment."
(c) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended by deleting the definition of "Revolving Commitment" in
its entirety and by substituting the following in lieu thereof:
" 'Revolving Commitment' shall mean the several obligations of
certain of the Lenders to advance the sum of $10,000,000 (as of the
Sixth Amendment Date) to the Borrower, on or after the Agreement
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Date, in accordance with their respective Revolving Commitment Ratios
and as such amount may be reduced from time to time, all pursuant to the
terms hereof."
(d) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended by deleting the definition of "Specified Default" in
its entirety and by substituting the following in lieu thereof:
" 'Specified Default' shall have the meaning assigned to such term in
the Fifth Amendment as such term has been amended and modified by the
terms of the Sixth Amendment."
2. Amendment to Section 2.1 Section 2.1 of the Credit Agreement, The
Loans, is hereby modified and amended by deleting the proviso at the end of
clause (a) and by substituting the following in lieu thereof:
"provided, however, the Borrower shall not be permitted to borrow any
additional Advances under the Revolving Commitment for the fifteen (15) day
period from and including June 28, 2002 through July 12, 2002"
3. Amendment to Section 2.2. Section 2.2 of the Credit Agreement, Manner
of Borrowing and Disbursement, is hereby modified and amended by deleting the
last sentence from clause (f)(i) and by substituting the following in lieu
thereof:
"Notwithstanding any term or provision of this Agreement which may be
construed to the contrary, each Term Loan Commitment Increase shall be in a
principal amount of at least $3,000,000."
4. Amendment to Section 2.7. Section 2.7 of the Credit Agreement,
Mandatory Repayments, is hereby modified and amended by deleting clause (f) in
its entirety and by substituting the following in lieu thereof:
"(f) Revolving Loans. The Borrower shall make a prepayment of the
Revolving Loans (without any corresponding permanent reduction in the
Revolving Commitment) (i) in an amount equal to the excess, if any, of the
aggregate principal amount of the Revolving Loans over the Available
Revolving Commitment and (ii) on June 28, 2002, in an amount sufficient to
reduce the aggregate outstanding principal amount of the Revolving Loans to
zero (0)."
5. Amendment to Section 6.1. Section 6.1 of the Credit Agreement, Monthly
Financial Statements, is hereby modified and amended by adding the following
sentence at the end thereof:
"Notwithstanding anything to the contrary contained in the foregoing,
with respect to each month ending during the Forbearance Period, the
financial statements and information required pursuant to this Section 6.1
shall be delivered within twenty-five (25) days after the last day of each
such month."
6. Amendment to Section 6.4. Section 6.4 of the Credit Agreement,
Performance Certificates, is hereby modified and amended by deleting clause
(a)(iii) in its entirety and substituting the following in lieu thereof:
"(iii) accompanied by a forecast of weekly cash receipts and
disbursements, (x) during the Forbearance Period, for the period commencing
on the first day of the immediately succeeding fiscal month through June 28,
2002, and (y) at all other times, for the immediately succeeding fiscal
month, in each case, certified as reasonable by a Principal Officer of the
Borrower."
7. Amendment to Section 7.2. Section 7.2 of the Credit Agreement,
Investments, is hereby modified and amended by deleting the reference to
"$10,000,000" in each of clauses (II) and (III) of subsection (v) in the final
paragraph thereof (starting "Notwithstanding anything to the contrary contained
in this Agreement, the following shall apply") and by substituting
"$15,000,000" in lieu thereof.
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8. Amendment to Section 8.2. Section 8.2 of the Credit Agreement, Senior
Leverage Ratio, is hereby modified and amended by inserting the following new
clause (c) at the end thereof:
"(c) During the Forbearance Period, the Borrower shall not permit for any
calendar month end during the periods set forth below, or as of the date of
any Advance made on or after the Sixth Amendment Date, the Senior Leverage
Ratio, after giving effect to such Advance (if applicable), to exceed the
applicable ratio for such date during the periods as set forth below:
Applicable Period Ratio
----------------- ------------
February 1, 2002 through February 28, 2002............ 7.70 to 1.00
March 1, 2002 through March 31, 2002.................. 8.70 to 1.00
April 1, 2002 through April 30, 2002.................. 8.80 to 1.00
May 1, 2002 through June 28, 2002..................... 8.75 to 1.00
9. Amendments to Forbearance Agreement.
(a) Additional Specified Defaults. The Specified Defaults identified
on Schedule 1 to the Fifth Amendment are hereby modified and amended to
include the Default or Event of Default that may arise under Section 6.3
of the Credit Agreement, Annual Financial Statements and Information,
solely as a result of the certification of independent certified public
accountants delivered by the Borrower thereunder with respect to the
Borrower's audited financial statements for the fiscal year ended
December 31, 2001, containing an explanatory paragraph regarding the
Borrower's ability to continue as a going concern.
(b) Extension of Forbearance Period. So long as no Forbearance
Default (as defined in the Fifth Amendment) shall have occurred prior to
the Sixth Amendment Date, the Expiration Date (as defined in the Fifth
Amendment) with respect to the Forbearance Period shall be extended from
5:00 p.m. (Eastern time) on March 15, 2002 to 5:00 p.m. (Eastern time)
on June 28, 2002. The parties hereto may further extend the Forbearance
Period, but the Lead Arranger, the Syndication Agent, the Documentation
Agent, the Administrative Agent and the Credit Parties shall be under no
obligation to do so. Any additional extension of the Forbearance Period
shall be in the sole discretion of the Lead Arranger, the Syndication
Agent, the Documentation Agent, the Administrative Agent and the Credit
Parties and, if granted, shall be evidenced by a written instrument
executed by the Required Lenders.
10. No Other Amendments or Extensions. Except for the amendments and
extensions expressly set forth above, the text of the Credit Agreement and the
other Loan Documents (including, without limitation, the terms of forbearance
set forth in the Fifth Amendment) shall remain unchanged and in full force and
effect, and the Lead Arranger, the Syndication Agent, the Documentation Agent,
the Administrative Agent and the Credit Parties hereby reserve the right to
require strict compliance with the terms of the Credit Agreement and the other
Loan Documents in the future. Except as otherwise expressly provided herein,
this Agreement shall not be construed to: (a) impair the validity, perfection
or priority of any Lien or security interest securing the Obligations; (b)
waive or impair any rights, powers or remedies of the Lead Arranger, the
Syndication Agent, the Documentation Agent, the Administrative Agent and the
Credit Parties under the Credit Agreement and the other Loan Documents upon
termination of the Forbearance Period, with respect to the Specified Defaults
or otherwise; or (c) constitute a waiver of any right of the Lead Arranger, the
Syndication Agent, the Documentation Agent, the Administrative Agent or the
Credit Parties to insist on strict compliance by the Borrower with each and
every term, condition and covenant of this Agreement and the other Loan
Documents.
11. Reaffirmation. Each of the Borrower and the Guarantors (each a "Pledge
Party") acknowledges and agrees that the security and other interests granted
to the Administrative Agent and the other Credit Parties pursuant to the Loan
Documents to which each respective Pledge Party is a signatory prior to the
date hereof shall remain outstanding and in full force and effect in accordance
with the Loan Documents, and shall continue to secure the Obligations, and that
the security and other interests granted to the Administrative Agent and the
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other Credit Parties thereby are hereby ratified, confirmed and continued by
execution and delivery hereof. The Loan Documents shall remain extant and in
full force and effect following the execution and delivery of this Amendment
and the other Loan Documents executed in connection therewith, and each of the
Pledge Parties hereby ratifies and confirms its respective obligations
thereunder.
12. Amendment Fee. The Borrower hereby agrees to pay, upon the Effective
Date (as defined in Section 13 below), to each Lender delivering its consent to
this Amendment on or before 5:00 p.m. (Eastern time) on March 14, 2002, an
amendment fee in the amount of 25 basis points on the amount of such Lender's
Revolving Commitment and Term Loans (other than any Term Loans subject to any
participation arrangements with any of the Controlling Shareholders or
Co-Investors) after giving effect to this Amendment and the reduction of the
Revolving Commitment made in connection herewith. The amendment fee referred to
herein shall be fully earned when due and non-refundable when paid.
13. Conditions to Effectiveness. This Agreement shall be effective as of
the date first written above (the "Effective Date") upon (a) the Administrative
Agent's receipt of a counterpart hereof duly executed by the Borrower, the
Guarantors and the Required Lenders and (b) upon the occurrence of each of the
following terms and conditions:
(a) The Administrative Agent shall have received a copy of the Borrower's
financial forecast of cash receipts and disbursements for the period from
March 1, 2002 through June 28, 2002.
(b) The Credit Parties shall have received payment of all fees and
expenses (including, without limitation, the Amendment Fee) due and payable
on the Sixth Amendment Date in respect of the Credit Agreement, this
Agreement and the transactions contemplated hereby and thereby.
(c) No event shall have occurred since July 13, 2001, which shall have
had a Materially Adverse Effect on the Borrower and its Restricted
Subsidiaries taken as a whole, except with respect to (i) the existence of
the Specified Defaults and (ii) the decline in the Borrower's business
attributable to the reduction in advertising pages and circulation, in each
case, resulting from market conditions existing as of and preceding the
Effective Date.
(d) The Administrative Agent shall have received such other information,
documents, instruments or approvals as the Administrative Agent or its
counsel may reasonably require.
14. Conditions Subsequent. As a condition subsequent to the effectiveness
of this Amendment, the Borrower and representatives for the Controlling
Shareholders shall participate in a teleconference with the Credit Parties on
or before May 10, 2002, to provide the Credit Parties with an update on the
status of the Borrower's restructuring efforts. The failure of the Borrower and
such representatives to participate in such teleconference shall constitute an
Event of Default under the Credit Agreement.
15. Representations and Warranties. The Borrower, for itself and on behalf
of each of its Subsidiaries, agrees, represents and warrants in favor of the
Lead Arranger, the Syndication Agent, the Documentation Agent, the
Administrative Agent and the Credit Parties that:
(a) This Agreement has been executed and delivered by duly authorized
representatives of the Borrower and the Guarantors, and the Credit
Agreement, as modified and amended by this Agreement, constitutes a legal,
valid and binding obligation of the Borrower and is enforceable against the
Borrower in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and by the application of general equitable
principles;
(b) After giving effect to this Agreement, no Default or Event of Default
(other than the Specified Defaults) shall have occurred and be continuing,
and the Borrower has made full disclosure to the
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Administrative Agent of all Defaults and Events of Default existing as of
Effective Date as is required under Section 6.6(c) of the Credit Agreement;
and
(c) No event contemplated in connection with this Agreement has occurred,
which has not been consented to or waived, the occurrence of which
constitutes, or with the passage of time or giving of notice or both would
constitute, a material default by the Borrower or any of its Subsidiaries
under any material indenture, agreement or other instrument, or any
judgment, decree or order, to which the Borrower or any of its Subsidiaries
is a party or by which the Borrower or any of its Subsidiaries or any of
their respective properties may be bound or affected.
16. Acknowledgements. The parties hereby acknowledge that they have not
entered into a mutual disregard of the terms and provision of the Credit
Agreement or the other Loan Documents, or engaged in any course of dealing at
variance with the terms and provision of the Credit Agreement or the other Loan
Documents. The Borrower hereby further acknowledges that it shall not rely upon
the existence of or claim or assert that there exists any such course of
dealing or mutual disregard of terms.
17. Release and Waiver. In order to induce the Lead Arranger, the
Syndication Agent, the Documentation Agent, the Administrative Agent and the
Credit Parties to execute, deliver and perform this Agreement, the Borrower (a)
represents and warrants that there are no claims, causes of action, suits,
debts, obligations, liabilities, demands of any kind, character or nature
whatsoever, fixed or contingent, which the Borrower may have, or claim to have,
against the Lead Arranger, the Syndication Agent, the Documentation Agent, the
Administrative Agent and the Credit Parties, or any of them, with respect to
the transactions contemplated by the Credit Agreement and the other Loan
Documents, and the Borrower hereby releases, acquits and forever discharges
each of the Lead Arranger, the Syndication Agent, the Documentation Agent, the
Administrative Agent and the Credit Parties and their respective agents,
employees, officers, directors, servants, representatives, attorneys,
affiliates, successors and assigns (collectively, the "Released Parties") from
any and all liabilities, claims, suits, debts, causes of action and the like of
any kind, character or nature whatsoever, known or unknown, fixed or contingent
that the Borrower may have, or claim to have, against each of the such Released
Parties from the beginning of time until and through the dates of execution and
delivery of this Agreement, and (b) hereby covenants and agrees never to
institute or cause to be instituted or continue prosecution of any suit or
other form of action or proceeding of any kind or nature whatsoever against any
Released Party, by reason of or in connection with any of the foregoing
matters, liabilities, claims, suits, debts or causes of action.
18. Effect on the Credit Agreement. Except as specifically provided
herein, the Credit Agreement shall remain in full force and effect, and is
hereby ratified, reaffirmed and confirmed. This Agreement shall be deemed to be
a Loan Document for all purposes.
19. Counterparts. This Agreement may be executed in any number of separate
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed an original and all of which, taken together, shall be
deemed to constitute one and the same instrument. In proving this Agreement in
any judicial proceedings, it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom such
enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
20. Delivery of Lender Addenda. Each Credit Party shall become a party to
this Agreement by delivering to the Administrative Agent a Lender Addendum,
substantially in the form of Annex A attached hereto, duly executed by such
Credit Party.
21. Law of Contract. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first written above.
BORROWER: ZIFF ▇▇▇▇▇ MEDIA INC.
By: _______________________
Name: _____________________
Title: ____________________
GUARANTORS: ZIFF ▇▇▇▇▇ PUBLISHING
HOLDINGS INC.,
a Delaware corporation
By: _______________________
Name: _____________________
Title: ____________________
ZIFF ▇▇▇▇▇ PUBLISHING INC.,
a Delaware corporation
By: _______________________
Name: _____________________
Title: ____________________
ZIFF ▇▇▇▇▇ INTERNET INC.,
a Delaware corporation
By: _______________________
Name: _____________________
Title: ____________________
ZIFF ▇▇▇▇▇ DEVELOPMENT INC.,
a Delaware corporation
By: _______________________
Name: _____________________
Title: ____________________
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eTESTING LABS INC.,
a Delaware corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
LEAD ARRANGER: CIBC WORLD MARKETS CORP.
By: ________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
SYNDICATION AGENT: BANKERS TRUST COMPANY
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
DOCUMENTATION AGENT: FLEET NATIONAL BANK
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
ADMINISTRATIVE AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: ________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director, CIBC World Markets
Corp., as Agent
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ANNEX A
FORM OF LENDER ADDENDUM
ZIFF ▇▇▇▇▇ MEDIA INC.
CREDIT AGREEMENT
DATED AS OF APRIL 5, 2000
Reference is made to the Credit Agreement, dated as of April 5, 2000, as
amended by that certain First Amendment to Credit Agreement dated as of June
12, 2000, as amended by that certain Second Amendment to Credit Agreement dated
as of July 19, 2000, as amended by that certain Third Amendment to Credit
Agreement dated as of January 22, 2001, as amended by that certain Fourth
Amendment to Credit Agreement and Reaffirmation Agreement dated as of July 13,
2001, as amended by that certain Fifth Amendment to Credit Agreement and
Forbearance Agreement (as further amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), by and among Ziff ▇▇▇▇▇ Media Inc.,
as Borrower, CIBC World Markets Corp., as lead arranger and bookrunner, Bankers
Trust Company, as syndication agent, Fleet National Bank, as documentation
agent, Canadian Imperial Bank of Commerce, as administrative agent (the
"Administrative Agent") and the other Credit Parties party thereto. Capitalized
terms used herein that are not defined herein shall have the meanings ascribed
to them in the Credit Agreement.
The Borrower has requested that the Required Lenders agree (a) to extend the
expiration date with respect to their agreement to forbear from the exercise of
their remedies available under the Credit Agreement and the other Loan
Documents on account of the Specified Defaults (as defined in the Fifth
Amendment), and (b) to amend certain provisions of the Credit Agreement, in
each case, on the terms and conditions described in the Sixth Amendment to
Credit Agreement and Extension of Forbearance Agreement in the form attached
hereto as Exhibit A (the "Sixth Amendment").
By execution and delivery of this Lender Addendum as provided in Section 20
of the Sixth Amendment, the undersigned Credit Party hereby consents to and
agrees with all of the terms and conditions contained in the Sixth Amendment.
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to
be duly executed and delivered by their proper and duly authorized officers as
of this day of March, 2002.
--------------------------------------
(NAME OF CREDIT PARTY)
By:
-----------------------------------
Name:
Title:
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EXHIBIT A
COPY OF SIXTH AMENDMENT
[see attached]
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