EXECUTION COPY
PROQUEST COMPANY
SIXTH AMENDMENT TO CREDIT AGREEMENT
This SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
as of December 28, 2001, and entered into by and among ProQuest Company
(formerly known as ▇▇▇▇ & ▇▇▇▇▇▇ Company), a Delaware corporation (the
"Company"), the financial institutions listed on the signature pages hereof
(each individually a "Lender" and collectively "Lenders"), Bankers Trust
Company, as administrative agent for Lenders ("Administrative Agent"), and, for
purposes of Section 4 hereof, the Credit Support Parties (as defined in Section
4 hereof) listed on the signature pages hereof, and is made with reference to
that certain Credit Agreement dated as of September 22, 1997, as amended by a
First Amendment dated as of November 26, 1997, a Second Amendment dated as of
December 17, 1998, a Third Amendment dated as of October 4, 1999, a Fourth
Amendment dated as of December 31, 1999, and a Fifth Amendment dated as of
December 29, 2000 (as so amended, the "Credit Agreement"), by and among Company,
Lenders and Administrative Agent. Capitalized terms used herein without
definition shall have the same meanings as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit Agreement to
permit Company to amend certain financial covenants and to make certain other
amendments as set forth below;
WHEREAS, subject to the terms and conditions of this Amendment,
Lenders are willing to agree to such amendments.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Definitions
A. Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definition, which shall be inserted in proper alphabetical
order:
"Sixth Amendment Effective Date" means, upon the satisfaction of the
conditions set forth in Section 2 of the Sixth Amendment to this Agreement,
December 28, 2001.
B. Subsection 1.2 of the Credit Agreement is hereby amended deleting
the reference to "Closing Date" and substituting therefor "Sixth Amendment
Effective Date".
1.2. Amendments to Section 2: Amounts and Terms of Commitments and Loans
A. Subsection 2.2A of the Credit Agreement is hereby amended by
deleting the text following the colon at the end of clause (b) of paragraph (i)
thereof in its entirety and by substituting therefor the following:
Applicable Eurodollar Applicable Base
"Leverage Ratio Rate Margin Rate Margin
---------------------------- --------------------- ---------------
Greater than or
equal to 3.00:1.00 2.25% 1.25%
Greater than or
equal to 2.50:1.00
but less than 3.00:1.00 2.00% 1.00%
Greater than or
equal to 2.00:1.00
but less than 2.50:1.00 1.75% 0.75%
Less than 2.00:1.00 1.50% 0.50%
; provided that (i) prior to the Sixth Amendment Effective Date, the
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applicable margin for Eurodollar Rate Loans and Base Rate Loans shall
be determined not in accordance with the table set forth above but in
accordance with the Credit Agreement as in effect immediately prior to
the Sixth Amendment Effective Date; (ii) commencing on the Sixth
Amendment Effective Date through the filing of a Margin Determination
Certificate for the Fourth Fiscal Quarter, Fiscal Year 2001, the
applicable margin for Eurodollar Rate Loans shall be 2.00% per annum
and for Base Rate Loans shall be 1.00% per annum; and (iii)
notwithstanding anything to the contrary herein provided for, any
decrease in the applicable margin for Eurodollar Rate Loans and Base
Rate Loans in any Fiscal Quarter shall not exceed 0.25% from the
applicable margin as in effect for the immediately preceding Fiscal
Quarter.
Upon delivery of the Margin Determination Certificate by Company to
Administrative Agent pursuant to subsection 6.1(iv), the applicable
margin for Eurodollar Rate Loans and Base Rate Loans shall
automatically be adjusted in accordance with such Margin Determination
Certificate, such adjustment to become effective on the next
succeeding Business Day following the receipt by Administrative Agent
of such Margin Determination Certificate; provided that at any time a
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Margin Determination Certificate is not delivered at the time required
pursuant to subsection 6.1(iv), from the time such Margin
Determination Certificate was required to be delivered until delivery
of such Margin Determination Certificate, the applicable margin for
Eurodollar Rate Loans shall be 2.25% per annum and the applicable
margin for Base Rate Loans shall be 1.25% per annum; provided further
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that if a Margin Determination Certificate erroneously
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indicates an applicable margin more favorable to Company than would be
afforded by the actual calculation of the Leverage Ratio, Company
shall promptly pay such additional interest and letter of credit fees
as shall correct for such error."
B. Subsection 2.4A(iii)(c) of the Credit Agreement is hereby amended
by (i) deleting the phrase "permitted by subsection 7.1(xiii)" and by
substituting therefor the phrase "(1) permitted by subsection 7.1(xiii)" and
(ii) deleting the "." at the end thereof and substituting therefor:
"and (2) permitted pursuant to subsection 7.1(xiv), Company shall
prepay the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to 100% of such Net
Debt Proceeds."
C. Subsection 2.4A(iii)(d) of the Credit Agreement is hereby amended
by deleting it in its entirety and substituting the following therefor:
"(d) Scheduled Mandatory Commitment Reductions. (1) On the Sixth
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Amendment Effective Date, the Revolving Loan Commitments shall be
permanently and automatically reduced by $50,000,000 and such reduction
shall reduce the Revolving Loan Commitment of each Lender proportionately
to its Pro Rata Share and (2) on December 31, 2002, the Revolving Loan
Commitments shall be permanently and automatically reduced by $50,000,000
and such reduction shall reduce the Revolving Loan Commitment of each
Lender proportionately to its Pro Rata Share."
1.3 Amendments to Section 4: Conditions to Effectiveness of Agreement and
to Loans and Letters of Credit
Subsection 4.2B of the Credit Agreement is hereby amended by (i) deleting
the "and" at the end of clause (v), (ii) deleting the "." at the end of clause
(vi) and substituting "; and" therefor, and (iii) adding the following clause
(vii) at the end thereof:
"(vii) Before giving effect to such borrowing, the sum of Cash
constituting collected and available balances in Deposit Accounts and Cash
Equivalents of Company and its Restricted Subsidiaries minus the total
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amount of any payments reasonably expected to be made within 3 Business
Days does not exceed $20,000,000 or such greater amount as may be approved
by Administrative Agent."
1.4 Amendments to Section 6: Affirmative Covenants
Subsection 6.11 of the Credit Agreement is hereby amended by deleting it in
its entirety and substituting "[Intentionally Omitted]" therefor.
1.5 Amendments to Section 7: Negative Covenants
A. Subsection 7.1(iii)(d) of the Credit Agreement is hereby amended by
deleting the text following clause (d) up to but excluding "; and" and
substituting "[intentionally omitted]" therefor.
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B. Subsection 7.1(viii) is hereby amended by deleting the reference to
"$100,000,000" and substituting therefor "$50,000,000".
C. Subsection 7.1 of the Credit Agreement is hereby amended by (i)
deleting the "and" at the end of clause (xii), (ii) deleting the "." at the end
of clause (xiii) and substituting "; and" therefor, and (iii) adding the
following clause (xiv) at the end thereof:
"(xiv) Company may become and remain liable with respect to unsecured
senior notes with a maturity of not less than five years, the terms and
conditions of which and of any guarantees thereof shall be satisfactory to
Administrative Agent and the net proceeds of which shall be used to repay
the outstanding amount of the Revolving Loans and to permanently reduce the
Revolving Loan Commitments as required by subsection 2.4A(iii)(c)(2)."
D. Subsection 7.3(xi) of the Credit Agreement is hereby amended by
deleting the reference to "$80,000,000" and substituting therefor "$60,000,000".
E. Subsection 7.4(iv) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefor the following:
"(iv) Company's Restricted Subsidiaries (other than BHFS Group) may
become and remain liable with respect to unsecured guarantees of the
indebtedness permitted pursuant to subsections 7.1(viii), 7.1(xiii) and
7.1(xiv);"
F. Subsection 7.6A of the Credit Agreement is hereby amended by
deleting the table set forth therein from "Fourth Fiscal Quarter and thereafter"
under 2001 to the end in its entirety and substituting the following therefor:
"2001
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Fourth Fiscal Quarter 1.30:1.00
2002
----
First Fiscal Quarter 1.30:1.00
Second Fiscal Quarter 1.30:1.00
Third Fiscal Quarter 1.30:1.00
Fourth Fiscal Quarter 1.50:1.00"
and thereafter
G. Subsection 7.7(iv) of the Credit Agreement is hereby amended by
deleting the reference to "$100,000,000" and substituting therefor
"$50,000,000".
H. Subsection 7.7(vi) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
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"(vi) Company and its Restricted Subsidiaries may sell equipment
leases, use agreements, service agreements, subscription agreements,
installment sales contracts and any other long-term receivables or
rights to receive future payment streams, for cash, on a non-recourse
basis, at fair market value and in accordance with past practices of
Company and its Restricted Subsidiaries; and"
1.6 Substitution of Exhibit
Exhibit I: Form of Notice of Borrowing. Exhibit I to the Credit
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Agreement is hereby amended by deleting said Exhibit I in its entirety and
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substituting in place thereof a new Exhibit I in the form of Annex 1 to this
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Amendment.
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective as of December 28,
2001, upon the prior or concurrent satisfaction of all of the following
conditions precedent:
A. On or before February 1, 2002, Company shall deliver to Lenders the
following, each, unless otherwise noted, dated February 1, 2002:
1. Signature and incumbency certificates of the officers executing
this Amendment; and
2. This Amendment executed by each Loan Party.
B. Requisite Lenders shall have executed this Amendment.
C. On or before February 1, 2002, all corporate and other proceedings
taken or to be taken in connection with the Sixth Amendment and all documents
incidental thereto not previously found acceptable by Administrative Agent,
acting on behalf of Lenders, and its counsel shall be satisfactory in form and
substance to Administrative Agent and such counsel, and Administrative Agent and
such counsel shall have received all such counterpart originals or certified
copies of such documents as Administrative Agent may reasonably request.
D. On or before February 1, 2002, Company shall pay to each Lender
consenting to this Amendment on or prior to Noon, Los Angeles time, on February
1, 2002, an amendment fee in such amount as has been agreed upon in writing
between the Company and the Administrative Agent.
Section 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. Each Loan Party has all requisite
corporate power and authority to enter into this Amendment, and Company has all
requisite corporate power and authority to carry out the transactions
contemplated by, and perform its
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obligations under, the Credit Agreement as amended by this Amendment (the
"Amended Agreement").
B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of each Loan Party party thereto.
C. No Conflict. The execution and delivery by each Loan Party of this
Amendment and the performance by Company of the Amended Agreement do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to Company or any of its Subsidiaries, the Certificate or
Articles of Incorporation or Bylaws of Company or any of its Subsidiaries or any
order, judgment or decree of any court or other agency of government binding on
Company or any of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of its Subsidiaries (other than any Liens created under
any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company or any of its
Subsidiaries.
D. Governmental Consents. The execution and delivery by each Loan
Party of this Amendment and the performance by Company of the Amended Agreement
do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
E. Binding Obligation. This Amendment has been duly executed and
delivered by each Loan Party, the Amended Agreement has been duly executed and
delivered by Company and each of this Amendment and the Amended Agreement are
the legally valid and binding obligations of each Loan Party party thereto,
enforceable against such Loan Party in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
F. Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 5 of the
Credit Agreement are incorporated herein by this reference and are and will be
true, correct and complete in all material respects on and as of the Sixth
Amendment Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date.
G. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
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Section 4. ACKNOWLEDGEMENT AND CONSENT
Company is a party to Company Pledge Agreement, Collateral Account
Agreement, Mortgages and Auxiliary Pledge Agreements. Each Restricted Domestic
Subsidiary of Company (other than BHFS Group and the Inactive Subsidiaries) (a
"Subsidiary Guarantor") is a party to the Subsidiary Guaranty, Subsidiary Pledge
Agreement, Mortgages and Auxiliary Pledge Agreements, in each case as amended
through the Sixth Amendment Effective Date, pursuant to which such Subsidiary
Guarantor has (i) guarantied the Obligations, (ii) created Liens in favor of
Administrative Agent on certain Collateral, and (iii) pledged certain Collateral
to Administrative Agent to secure the obligations of such Subsidiary Guarantor
under the Subsidiary Guaranty. Company and Subsidiary Guarantors are
collectively referred to herein as the "Credit Support Parties," and the Company
Pledge Agreement, Collateral Account Agreement, Mortgages, Auxiliary Pledge
Agreements, Subsidiary Guaranty and Subsidiary Pledge Agreements are
collectively referred to herein as the "Credit Support Documents."
Each Credit Support Party hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Amendment and consents to
the amendment of the Credit Agreement effected pursuant to this Amendment. Each
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby will
continue to guaranty or secure, as the case may be, to the fullest extent
possible the payment and performance of all "Obligations," "Guarantied
Obligations" and "Secured Obligations," as the case may be (in each case as such
terms are defined in the applicable Credit Support Document), including without
limitation the payment and performance of all such "Obligations," "Guarantied
Obligations" or "Secured Obligations," as the case may be, in respect of the
Obligations of Company now or hereafter existing under or in respect of the
Amended Agreement and the Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or by which it is otherwise
bound shall continue in full force and effect and that all of its obligations
thereunder shall be valid and enforceable and shall not be impaired or limited
by the execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Amended Agreement and the Credit Support Documents to which it is a party or
otherwise bound are true, correct and complete in all material respects on and
as of the Sixth Amendment Effective Date to the same extent as though made on
and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
Each Credit Support Party (other than Company) acknowledges and agrees
that (i) notwithstanding the conditions to effectiveness set forth in this
Amendment, such Credit Support Party is not required by the terms of the Credit
Agreement or any other Loan Document to consent to the amendments to the Credit
Agreement effected pursuant to this Amendment and (ii) nothing in the Credit
Agreement, this Amendment or any other Loan Document shall be deemed to require
the consent of such Credit Support Party to any future amendments to the Credit
Agreement.
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Section 5. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(i) On and after the Sixth Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under, the Credit Agreement or any of
the other Loan Documents.
B. Fees and Expenses. All costs, fees and expenses as described in
subsection 11.2 of the Credit Agreement with respect to this Amendment shall be
for the account of Company.
C. Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
PROQUEST COMPANY
By:
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Title:
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▇▇▇▇ & ▇▇▇▇▇▇ PUBLISHING SERVICES
COMPANY (f/k/a ▇▇▇▇ & ▇▇▇▇▇▇
PUBLICATION SYSTEMS COMPANY)
PROQUEST INFORMATION AND LEARNING
COMPANY (f/k/a/ ▇▇▇▇ & ▇▇▇▇▇▇
INFORMATION AND LEARNING COMPANY)
▇▇▇▇ & ▇▇▇▇▇▇ PROTOCORP
INTERNATIONAL, INC.
(for purposes of Section 4 only) as a Credit Support
Party
By:
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Title:
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S-1
BANKERS TRUST COMPANY, Individually and
as Administrative Agent
By:
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Title:
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S-2
BANK OF AMERICA, N.A., Individually and as
Co-Agent
By:
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Title:
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S-3
THE BANK OF NOVA SCOTIA, Individually
and as Co-Agent
By:
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Title:
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▇-▇
▇▇▇▇ ▇▇▇, ▇▇
(▇/▇/▇ THE FIRST NATIONAL BANK OF
CHICAGO), Individually and as Co-Agent
By:
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Title:
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S-5
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By:
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Title:
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S-6
ABN AMRO BANK, N.V., as a Lender
By:
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Title:
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By:
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Title:
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S-7
THE BANK OF NEW YORK, as a Lender
By:
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Title:
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S-8
THE CHASE MANHATTAN BANK, as a Lender
By:
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Title:
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S-9
CREDIT AGRICOLE INDOSUEZ, as a Lender
By:
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Title:
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By:
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Title:
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S-10
CREDIT LYONNAIS, CHICAGO BRANCH, as a
Lender
By:
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Title:
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S-11
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH, as a Lender
By:
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Title:
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▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ and
GRAND CAYMAN BRANCHES, as a Lender
By:
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Title:
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By:
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Title:
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S-13
FIRST UNION NATIONAL BANK, as a Lender
By:
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Title:
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S-14
▇▇▇▇▇▇ TRUST & SAVINGS BANK, as a
Lender
By:
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Title:
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S-15
LLOYDS TSB BANK PLC
(formerly Lloyds Bank plc), as a Lender
By:
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Title:
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By:
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Title:
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S-16
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
By:
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Title:
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▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, as a
Lender
By:
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Title:
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S-18
THE SANWA BANK, LIMITED, CHICAGO
BRANCH, as a Lender
By:
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Title:
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▇-▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A., as a
Lender
By:
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Title:
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S-20
U.S. BANK NATIONAL ASSOCIATION
d/b/a/ and f/k/a/ FIRST BANK NATIONAL
ASSOCIATION, as a Lender
By:
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Title:
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S-21
ANNEX 1
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EXHIBIT I
[FORM OF NOTICE OF BORROWING]
NOTICE OF BORROWING
Pursuant to that certain Credit Agreement dated as of September 22,
1997 (said Credit Agreement, as amended, supplemented or otherwise modified from
time to time, being the "Credit Agreement", the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
ProQuest Company (formerly known as ▇▇▇▇ & ▇▇▇▇▇▇ Company), a Delaware
corporation ("Company"), the financial institutions listed therein as Lenders
("Lenders"), Bankers Trust Company, as Administrative Agent ("Administrative
Agent"), this represents Company's request to borrow on ,
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from Lenders, in accordance with their applicable Pro Rata Shares,
$ in Revolving Loans as [Base/Eurodollar] Rate Loans. [The initial
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Interest Period for such Loans is requested to be a month period.] The
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proceeds of such Loans are to be deposited in Company's account at
Administrative Agent.
The undersigned officer, to the best of his or her knowledge, and
Company certify that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents on and as of the date hereof
are, and on the date of the making of the Loans requested hereby will
be, true, correct and complete in all material respects to the same
extent as though made on and as of such dates, except to the extent
such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties were true,
correct and complete in all material respects on and as of such
earlier date;
(ii) No event has occurred and is continuing or would result from the
consummation of the borrowing contemplated hereby that would
constitute an Event of Default or a Potential Event of Default;
(iii) Each Loan Party has performed in all material respects all
agreements and satisfied all conditions which the Credit Agreement
provides shall be performed or satisfied by it on or before the date
hereof; and
(iv) Before giving effect to such borrowing, the sum of Cash
constituting collected and available balances in Deposit Accounts and
Cash Equivalents of Company and its Restricted Subsidiaries minus the
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total amount of any payments reasonably expected to be made within 3
Business Days does not exceed $20,000,000 [or] [insert such greater
amount approved by Administrative Agent pursuant to subsection
4.2B(vii), which amount has been approved pursuant to the written
communication from Administrative Agent attached hereto].
ANNEX 1-1
DATED: PROQUEST COMPANY
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By:
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Name:
Title:
ANNEX 1-2