EXHIBIT 10.21
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 23, 2000
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED CREDIT AGREEMENT among
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, INC., a Massachusetts corporation (a "Borrower" or "ADL"),
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ INTERNATIONAL, INC., a Massachusetts corporation (a "Borrower",
and together with ADL, the "Borrowers"), the banks, financial institutions and
other institutional lenders (the "Initial Lenders") listed on the signature
pages hereof, and CITIBANK, N.A. ("Citibank"), as agent (together with any
successor appointed pursuant to Section 8.06, the "Agent") for the Lenders (as
hereinafter defined)
PRELIMINARY STATEMENTS:
(1) The Borrowers, the Initial Lenders and the Agent have entered
into an Amended and Restated Credit Agreement dated as of April 25, 2000
(as amended, supplemented or otherwise modified through the date hereof,
the "Credit Agreement"). Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrowers and the Lenders have agreed to amend the Credit
Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement.
---------- ------------------------------
The Credit Agreement is, effective as of the date hereof and subject
to the satisfaction of the conditions precedent set forth in Section 4, hereby
amended as follows:
(a) Section 2.06(b)(ii)(C)(y) is amended in full to read as follows:
"(y) proceeds of the TIME IPO except such proceeds that exceed
$55,000,000 or are received by or for the account of a Borrower."
(b) Section 2.06(b) is amended by adding the following immediately
after the word "maturity" at the end thereof:
"; provided that any prepayments pursuant to clause (C)(y) of
this Section 2.06(b) shall be applied against the principal repayment
installments set forth in Section 2.03 in inverse order, commencing
with the principal repayment installment due June 1, 2001."
(c) Section 2.06(b)(iii) is deleted in its entirety and the following
substituted therefor: "Intentionally deleted".
(d) Section 2.02 is amended by adding to the end thereof a new
subsection (c), to read as follows:
"(c) Amendment Fee. In addition to the fees set forth above,
-------------
ADL shall pay to the Agent for the account of each Lender a
restructuring fee equal to 2% of such Lender's Commitment as of
January 15, 2001, payable on January 15, 2001."
(e) Section 5.01(m) is amended by deleting the words "In the event
that the TIME IPO does not occur on or prior to December 31, 2000, the" and
substituting therefor the word "The".
(f) Section 5.01(m)(i) is amended by inserting at the end thereof
the words "; provided that, in the event the TIME IPO has occurred on or
prior to December 31, 2000, this Section 5.01(m) shall not apply with
respect to TIME or its Subsidiaries,"
SECTION 2. Conditions of Effectiveness.
---------- ---------------------------
This Amendment shall become effective as of the date first above
written when, and only when, the Agent shall have received (i) counterparts of
this Amendment executed by the Borrowers and all of the Lenders or, as to any of
the Lenders, advice satisfactory to the Agent that such Lender has executed this
Amendment and the consent attached hereto executed by each Subsidiary Guarantor
(ii) evidence to its reasonable satisfaction that the TIME IPO has been
completed and (iii) not later than 5 days after the execution of this Amendment,
payment of all costs and expenses of the Agent or counsel to the Agent due and
payable under Section 9.04 of the Credit Agreement or this Amendment. This
Amendment is subject to the provisions of Section 9.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Borrower.
---------- ----------------------------------------------
Each Borrower represents and warrants as follows:
(a) Each of the Borrowers is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
(b) The execution, delivery and performance by the Borrowers of this
Amendment, and the consummation of the transactions contemplated hereby,
are within such Borrower's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene (i) such Borrower's
charter or by-laws or (ii) law or any contractual restriction binding on or
affecting such Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Borrowers of this Amendment.
(d) This Amendment has been duly executed and delivered by each
Borrower. This Amendment and each of the Loan Documents as amended hereby
is the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against such Loan Party in accordance with its terms.
(e) The execution, delivery and performance of this Amendment do not
adversely affect the Liens created under any of the Collateral Documents.
SECTION 4. Reference to and Effect on the Credit Agreement and the
---------- -------------------------------------------------------
Notes.
-----
(a) On and after the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words
of like import referring to the Credit Agreement, and each reference in the
Notes and each of 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 Credit Agreement, as
amended by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall
continue to be in full force and effect and are hereby in all respects
ratified and confirmed. Without limiting the generality of the foregoing,
the Collateral Documents and all of the Collateral described therein do and
shall continue to secure the payment of all Obligations of the Loan Parties
under the Loan Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 5. Costs, Expenses.
---------- ---------------
Each Borrower agrees to pay on demand all costs and expenses of the
Agent in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and the other
instruments and documents to be delivered hereunder (including, without
limitation, the reasonable fees and expenses of counsel for the Agent) in
accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 6. Execution in 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 shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement. Delivery of an executed counterpart
of a signature page to this Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment.
SECTION 7. Governing Law.
---------- -------------
This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Treasurer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ INTERNATIONAL, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Treasurer
CITIBANK, N.A.
as Agent and as Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇▇ O'Dell
-------------------------------
Title: ▇▇▇▇▇ O'Dell
