REAFFIRMATION OF SECURITY DOCUMENTS AND FIRST AMENDMENT TO FIRST LIEN SECURITY AGREEMENT
Exhibit 10.3
EXECUTION COPY
REAFFIRMATION OF SECURITY DOCUMENTS AND FIRST
AMENDMENT TO FIRST LIEN SECURITY AGREEMENT
AMENDMENT TO FIRST LIEN SECURITY AGREEMENT
THIS REAFFIRMATION OF SECURITY DOCUMENTS AND FIRST AMENDMENT TO FIRST LIEN SECURITY AGREEMENT,
dated as of February 15, 2007 (this “Amendment”), is made by ZIFF XXXXX MEDIA INC., a
Delaware corporation (the “Company”), each of the entities listed on the signature page
hereto as Guarantors (the “Guarantors,” and together with the Company, each a
“Grantor” and, collectively, the “Grantors”) and U.S. BANK NATIONAL ASSOCIATION as
“Collateral Trustee” (the “Collateral Trustee”) under the Collateral Trust Agreement (as defined
below).
WITNESSETH:
WHEREAS, pursuant to the Indenture, the Grantors (other than the Company) will guarantee
payment of all Secured Obligations (as defined in the Collateral Trust Agreement).
WHEREAS, the Indenture and the Collateral Trust Agreement contemplate that all First Lien
Obligations (as defined in the Collateral Trust Agreement) will be secured Equally and Ratably (as
defined in the Collateral Trust Agreement) by Liens (as defined in the Collateral Trust Agreement)
on all present and future Collateral (as defined in the Security Agreement).
WHEREAS, pursuant to the terms of that certain Note Purchase Agreement dated as of the date
hereof by the Company as “Issuer” thereunder, each of the entities parties thereto as “Guarantors”
thereunder, and each of the entities parties thereto as “Purchasers” thereunder (the “Note
Purchase Agreement”), the Company is issuing certain Notes (collectively, the “NPA
Notes”) to such Purchasers.
WHEREAS, it is a condition to the closing under the Note Purchase Agreement that the Grantors
and the Collateral Trustee enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, each Grantor and the Collateral Trustee agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms when used in this Amendment
shall have the following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):
“Administrative Agent” is defined in Note Purchase Agreement.
“Collateral Trust Agreement” means the Collateral Trust Agreement, dated as of April
22, 2005, among the Company, the other Grantors, U.S. Bank National Association as trustee under
the Indenture, the Collateral Trustee and any other Secured Debt Representative from time
to time party thereto, as such agreement may be amended, modified or supplemented from time to
time.
“Copyright Agreement” means the First Lien Copyright Security Agreement, dated as of
April 22, 2005, among the Company, the Guarantors party thereto, the other grantors party thereto
from time to time and the Collateral Trustee, as such agreement may be amended, modified or
supplemented from time to time.
“Indebtedness” is defined in the Collateral Trust Agreement.
“Note Document” is defined in the Collateral Trust Agreement.
“Obligations” is defined in the Collateral Trust Agreement.
“Patent Agreement” means the First Lien Patent Security Agreement, dated as of
February ___, 2007, among the Company, the Guarantors party thereto, the other grantors party
thereto from time to time and the Collateral Trustee, as such agreement may be amended, modified or
supplemented from time to time.
“Security Agreement” means the First Lien Security Agreement, dated as of April 22,
2005, among the Company, the Guarantors, the other grantors party thereto from time to time and the
Collateral Trustee, as such agreement may be amended, modified or supplemented from time to time.
“Security Documents” is defined in the Collateral Trust Agreement.
“Trademark Agreement” means the First Lien Trademark Security Agreement, dated as of
April 22, 2005, among the Company, the Guarantors party thereto, the other grantors party thereto
from time to time and the Collateral Trustee, as such agreement may be amended, modified or
supplemented from time to time.
SECTION 1.2. Other Definitions. Terms for which meanings are provided in the
Security Agreement are, unless otherwise defined herein or the context otherwise requires, used in
this Amendment with such meanings.
ARTICLE II
AMENDMENTS TO SECURITY AGREEMENT
Effective on (and subject to the occurrence of) the Amendment Effective Date, the provisions
of the Security Agreement referred to below are hereby amended in accordance with this Article
II. Except as expressly so amended, the Security Agreement shall continue in full force and
effect in accordance with its terms.
SECTION 2.1. Amendment to Section 1(a) of the Security Agreement is hereby amended as
follows:
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(a) Section 1(a) of the Security Agreement is hereby amended by inserting the following
definitions in the appropriate alphabetical order:
“First Amendment” means the Reaffirmation of Security Documents and First
Amendment to First Lien Security Agreement, dated as of February [___], 2007, among the
Company, the other Grantors party thereto and the Collateral Trustee.
“First Amendment Effective Date” shall have the meaning provided in the First
Amendment.
“Note Purchase Agreement” means the Note Purchase Agreement, dated as of
February ___, 2007, among the Company, the entities parties thereto as “Guarantors”, and the
entities parties thereto as “Purchasers”, as such agreement may be amended, modified or
supplemented from time to time.
(b) Each of the following defined terms set forth in Section 1(a) of the Security Agreement is
deleted and replaced in its entirety to read in its entirety as follows:
““Capital Stock” shall have the meaning set forth for such term in the Indenture or the
Note Purchase Agreement.”
““Event of Default” shall mean an “Event of Default” as defined in the Indenture or the
Note Purchase Agreement.”
““Guarantors” means each of:
(1) Ziff Xxxxx Publishing Holdings Inc., Ziff Xxxxx Publishing Inc., Ziff Xxxxx Development
Inc. and Ziff Xxxxx Internet Inc; and
(2) any other Domestic Subsidiary of Ziff Xxxxx that executes a Note Guarantee in accordance
with the provisions of the Indenture or the Note Purchase Agreement, and their respective
successors and assigns, in each case, until the Note Guarantee of such Person has been released in
accordance with the provisions of the Indenture or the Note Purchase Agreement (as applicable).”
SECTION 2.2. Amendment to Section 4. Section 4 of the Security Agreement is hereby
amended as follows:
(a) Section 4(a)(ii)(2) of the Security Agreement is hereby amended by inserting “or the Note
Purchase Agreement” immediately after the words “the Indenture” appearing therein; and
(b) Section 4(c)(i)(4) of the Security Agreement is hereby amended by inserting “and the Note
Purchase Agreement” immediately after the words “the Indenture” appearing therein.
SECTION 2.3. Amendment to Section 8. Clause 2 of the second paragraph of Section 8
of the Security Agreement is hereby amended in its entirety to read as follows:
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“as to any Collateral that is sold, transferred or otherwise disposed of by the Company or any
other Pledgor to a Person that is not (either before or after such sale, transfer or disposition)
the Company or a Restricted Subsidiary of Ziff Xxxxx in a transaction or other circumstance that
complies with the “Asset Sale” provisions of the Indenture and the Note Purchase Agreement and is
permitted by all of the other Secured Debt Documents, at the time of such sale, transfer or other
disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided
that the collateral trustee’s Liens upon the Collateral will not be released if the sale or
disposition is subject to Section 5.01 of the Indenture or Section 6.01 of the Note Purchase
Agreement;”
SECTION 2.4. Amendment to Section 9. The second, third and fourth paragraphs of
Section 9 of the Security Agreement are hereby deleted and replaced in their entirety to read in
their entirety as set forth below:
“Subject to subsections (b) and (c) of Section 10.03 of the Indenture and subsections (b) and
(c) of Section 11.04 of the Note Purchase Agreement, Collateral may be released from the Lien and
security interest created by the Security Agreements at any time or from time to time in accordance
with the provisions of the Security Agreements. In addition, upon the request of the Company
pursuant to an Officers’ Certificate certifying that all conditions precedent hereunder have been
met and stating whether or not such release is in connection with an Asset Sale and (at the sole
cost and expense of the Company) the Collateral Trustee will release Collateral that is sold,
conveyed or disposed of in compliance with the provisions of each of the Indenture and the Note
Purchase Agreement; provided that if such sale, conveyance or disposition constitutes an Asset
Sale, the Company will apply the Net Proceeds in accordance with Section 4.10 of the Indenture and
Section 5.10 of the Note Purchase Agreement. Upon receipt of such Officers’ Certificate the
Collateral Trustee shall execute, deliver or acknowledge any necessary or proper instruments of
termination, satisfaction or release to evidence the release of any Collateral permitted to be
released pursuant to the Indenture, the Note Purchase Agreement or the Security Agreements.
(i) No Collateral may be affirmatively released from the Lien and security interest created by
the Security Agreements pursuant to the provisions of the Security Agreements unless the
certificate required Section 10.06 of the Indenture and Section 11.03 of the Note Purchase
Agreement has been delivered to the Collateral Trustee.
(ii) At any time when a Default or Event of Default has occurred and is continuing and the
maturity of the Notes or the “Notes” issued pursuant to the Note Purchase Agreement has been
accelerated (whether by declaration or otherwise) and the Trustee or holders of a majority in
principal amount of the “Notes” issued pursuant to the Note Purchase Agreement has delivered a
notice of acceleration to the Collateral Trustee, no release of Collateral pursuant to the
provisions of the Security Agreements will be effective as against the Holders of Notes or holders
of the “Notes” issued pursuant to the Note Purchase Agreement.”
SECTION 2.5. Schedules. The Schedules to the Security Agreement and each of the
Trademark Security Agreement and the Copyright Security Agreement are hereby updated as attached as
Schedules to this Amendment.
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ARTICLE III
ACKNOWLEDGEMENTS
SECTION 3.1. Acknowledgements. The Company and each of the Guarantors hereby
acknowledges and agrees, for the benefit of the Collateral Trustee and the holders of the NPA
Notes, to the following:
(a) The Indebtedness under the Note Purchase Agreement and the NPA Notes constitutes “First
Lien Debt” under and for all purposes of the Security Agreement, the Copyright Agreement, the
Trademark Agreement, the Patent Agreement, the Collateral Trust Agreement and all other Security
Documents;
(b) The Indebtedness and other Obligations under the Note Purchase Agreement and the NPA Notes
constitute “First Lien Obligations” under and for all purposes of the Security Agreement, the
Copyright Agreement, the Trademark Agreement, the Patent Agreement, the Collateral Trust Agreement
and all other Security Documents;
(c) The Liens on the Collateral created by the Security Agreement, the Copyright Agreement,
the Trademark Agreement, the Patent Agreement, the Collateral Trust Agreement and all other
Security Documents (x) secure the Indebtedness and other Obligations under the Note Purchase
Agreement and the NPA Notes, and (y) secure the Indebtedness and other Obligations under the Note
Purchase Agreement and the NPA Notes Equally and Ratably with the Indebtedness and other
Obligations under the Indenture and the Notes issued thereunder; and
(d) The Administrative Agent constitutes a “First Lien Representative” under and for all
purposes of the Security Agreement, the Copyright Agreement, the Trademark Agreement, the Patent
Agreement, the Collateral Trust Agreement and all other Security Documents.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
This Amendment and the amendments, acknowledgements and other provisions contained herein
shall become effective on the date (the “Amendment Effective Date”) when the Administrative
Agent shall have received counterparts hereof executed on behalf of the Company, the other Grantors
and the Collateral Trustee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Cross-References. References in this Amendment to any Article or
Section are, unless otherwise specified, to such Article or Section of this Amendment.
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SECTION 5.2. Note Document Pursuant to Security Agreement. This Amendment is a Note
Document executed pursuant to the Collateral Trust Agreement and shall (unless otherwise expressly
indicated therein) be construed, administered and applied in accordance with all of the terms and
provisions of the Security Agreement and the other Security Documents, as amended hereby.
SECTION 5.3. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns.
SECTION 5.4. Counterparts. This Amendment may be executed by the parties hereto in
several counterparts, each of which when executed and delivered shall be an original and all of
which shall constitute together but one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment by facsimile shall be effective as delivery of a
manually executed counterpart of this Amendment.
SECTION 5.5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 5.6. Full Force and Effect; Limited Amendment. Except as expressly amended
hereby, all of the representations, warranties, terms, covenants, conditions and other provisions
of the Security Agreement, the Copyright Agreement, the Trademark Agreement, the Collateral Trust
Agreement and the other Note Documents shall remain unchanged and shall continue to be, and shall
remain, in full force and effect in accordance with their respective terms. The amendments set
forth herein shall be limited precisely as provided for herein to the provisions expressly amended
herein and shall not be deemed to be an amendment to, waiver of, consent to or modification of any
other term or provision of the Security Agreement or any other Note Document, or any right or
remedy thereunder. Each of the Grantors hereby confirms, reaffirms and ratifies each of their
obligations set forth in the Security Agreement, the Copyright Agreement, the Trademark Agreement,
the Collateral Trust Agreement and the other Note Documents, each as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the
date first above written.
| COMPANY: | ||||
| ZIFF XXXXX MEDIA INC. | ||||
| By: | ||||
| Title: | ||||
| ZIFF XXXXX PUBLISHING HOLDINGS INC. | ||||
| By: | ||||
| Title: | ||||
| ZIFF XXXXX PUBLISHING INC. | ||||
| By: | ||||
| Title: | ||||
| ZIFF XXXXX DEVELOPMENT INC. | ||||
| By: | ||||
| Title: | ||||
| ZIFF XXXXX INTERNET INC. | ||||
| By: | ||||
| Title: | ||||
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| U.S BANK NATIONAL ASSOCIATION, as Collateral Trustee | ||||
| By: | ||||
| Title: | ||||
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