Loan Agreement [Amendment No. 1] - Martha Stewart Living Omnimedia LLC and NationsBank NA
AMENDMENT NO. 1 TO LOAN AGREEMENT
AMENDMENT NO. 1, dated as of June 30, 1998 (the "Amendment"), to the LOAN
AGREEMENT, dated as of February 3, 1997 (the "Loan Agreement"), between MARTHA
STEWART LIVING OMNIMEDIA LLC, a Delaware limited liability company (the
"Borrower"), and NATIONSBANK, N.A. (the "Bank").
The parties desire to amend the Loan Agreement.
Therefore, in consideration of the premises and the agreements herein, the
Borrower hereby agrees with the Bank as follows:
1. Definitions. All terms used herein which are defined in the Loan
Agreement and not otherwise defined herein are used herein as defined therein.
2. Amendments.
(a) Section I.UU. of the Loan Agreement is hereby amended and restated in
its entirety as follows:
"UU. "MATURITY DATE" means June 30, 1999 or such later date that is
established pursuant to Section II.G."
(b) Article IV of the Loan Agreement is hereby amended to add the
following as a new Section IV.Q.:
"Q. YEAR 2000 REPRESENTATIONS AND WARRANTIES.
(1) The Borrower has (i) begun analyzing the operations of the
Borrower and its subsidiaries and affiliates that could be adversely affected by
failure to become Year 2000 compliant (that is, that computer applications,
imbedded microchips and other systems will be able to perform date-sensitive
functions prior to and after December 31, 1999): and (ii) developed a plan for
becoming Year 2000 compliant in a timely manner, the implementation of which is
on schedule in all material respects. The Borrower reasonably believes that it
will become Year 2000 compliant for its operations and those of its subsidiaries
and affiliates on a timely basis except to the extent that a failure to do so
could not reasonably be expected to have a material adverse effect upon the
financial condition of the Borrower.
(2) The Borrower reasonably believes any suppliers and vendors that
are material to the operations of the Borrower or its subsidiaries and
affiliates will be Year 2000 compliant for their own computer appli-
<PAGE> 2
expected to have a material adverse effect upon the financial
condition of the Borrower.
(3) The Borrower will promptly notify the Bank in the event the
Borrower determines that any computer application which is material to
the operations of the Borrower, its subsidiaries or any of its
material vendors or suppliers will not be fully Year 2000 compliant on
a timely basis, except to the extent that such failure could not
reasonably be expected to have a material adverse effect upon the
financial condition of the Borrower."
(c) Paragraph (3) of Section V.A. of the Loan Agreement is hereby
amended and restated in its entirety as follows:
"(3) as soon as available, but not later than 45 days after the end of
each month, an unaudited consolidated balance sheet of the Borrower as of
the end of such month and a consolidated income statement and consolidated
statement of earnings, operations, cash flows and members' equity for each
such month, prepared in accordance with GAAP and certified (subject to
normal year-end audit adjustment and the absence of footnotes) on behalf of
the Borrower by the chief financial officer of the Borrower, provided, that
the Borrower shall be required to comply with this paragraph (3) only
during any period in which a Loan is outstanding;"
(d) Paragraph (7) of Section V.A. of the Loan Agreement is hereby
amended and restated in its entirety as follows:
"(7) as soon as available, but no later than 45 days after the end of
each March, June, September and December of each Fiscal Year,
(a) a summary aging schedule of the Receivables as of the last
day of such month for the Borrower, and
(b) a Borrowing Base Certificate as of the last day of such month
executed by the chief financial officer of the Borrower;
provided, that during any period in which a Loan is outstanding, the
summary aging schedule and Borrowing Base Certificate described in clauses
(a) and (b) above shall be required to be delivered to the Bank as soon as
available, but not later than 45 days after the end of each month;"
3. Representations and Warranties. The Borrower hereby represents
and warrants to the Bank as follows:
(a) The representations and warranties made by the Borrower in the
Loan Agreement, as amended hereby, and in each other Loan Document to which it
is a party deliv-
-2-
<PAGE> 3
ered to the Bank on or prior to the date hereof are true and correct on and as
of the date hereof as though made on and as of the date hereof (except to the
extent such representations and warranties expressly relate to an earlier date).
(b) The Borrower has all requisite power and authority to execute,
deliver and perform this Amendment and the Amended and Restated Note (as
defined below) and to perform the Loan Agreement, as amended hereby.
(c) The execution, delivery and performance by the Borrower of this
Amendment and the Amended and Restated Note, and the performance by the
Borrower of the Loan Agreement, as amended hereby, (i) do not and will not
contravene any law or any contractual restriction binding on or affecting the
Borrower or any of its properties, and (ii) do not and will not result in or
require the creation of any lien, security interest or other charge or
encumbrance upon or with respect to any of its properties, other than in favor
of the Bank.
(d) Each of this Amendment, the Amended and Restated Note and the
Loan Agreement, as amended hereby, constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower In accordance with
its terms.
4. Continued Effectiveness of the Loan Agreement. Except as
otherwise expressly provided herein, the Loan Agreement and the other Loan
Documents are, and shall continue to be, in full force and effect and are hereby
ratified and confirmed in all respects except that on and after the date hereof
(i) all references in the Loan Agreement to "this Agreement," "hereto,"
"hereof," "hereunder" or words of like import referring to the Loan Agreement
shall mean the Loan Agreement as amended by this Amendment and (ii) all
references in the other Loan Documents to the "Loan Agreement," "thereto,"
"thereof," "thereunder" or words of like import referring to the Loan Agreement
shall mean the Loan Agreement as amended by this Amendment and all references in
the Loan Documents to the "Note," "thereto," "thereof," "thereunder" or words of
like import referring to the Note shall mean the amended and restated promissory
note attached as Exhibit A hereto (the "Amended and Restated Note").
5. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
6. Headings. Section headings herein are included for convenience
of reference only and shall not constitute a part of this Amendment for any
other purpose.
7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. Amendment as Loan Document. The Borrower hereby acknowledges and
agrees that this Amendment constitutes a "Loan Document."
9. Effectiveness. This Amendment will become effective on the date
upon which the following conditions precedent shall have been satisfied: (i)
execution and delivery of
-3-
<PAGE> 4
this Amendment by the parties hereto; and (ii) the Borrower shall have executed
the Amended and Restated Note and delivered it to the Bank.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first above written.
MARTHA STEWART OMNIMEDIA LLC
By: /s/ Barry Pincus
---------------------------
Name: Barry Pincus
Title: CFO
NATIONSBANK, N.A.
By: /s/ Jane R. Heller
---------------------------
Name: Jane R. Heller
Title: SVP
Acknowledged and Agreed
this 30th day of June, 1998:
MARTHA STEWART, INC.
By: /s/ Barry Pincus
---------------------------
Name: Barry Pincus
Title: Treasurer
THE MARTHA STEWART FAMILY LIMITED PARTNERSHIP
By: /s/ Martha Stewart
---------------------------
Martha Stewart
General Partner
/s/ Martha Stewart
-------------------------------
Martha Stewart
-4-