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EXHIBIT 10.1
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XXXXX MEDIA CORP.
(formerly known as Xxxxx Advertising Company)
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CREDIT AGREEMENT
Dated as of August 13, 1999
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CHASE SECURITIES INC.
as Lead Arranger and Book Manager
THE CHASE MANHATTAN BANK
as Administrative Agent
FLEET BANK, FIRST UNION NATIONAL BANK
and THE FIRST NATIONAL BANK OF CHICAGO
as Co-Documentation Agents
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms.............................................................................1
SECTION 1.02. Classification of Loans and Borrowings...................................................24
SECTION 1.03. Terms Generally..........................................................................24
SECTION 1.04. Accounting Terms; GAAP...................................................................24
SECTION 1.05. Subsidiaries; Designation of Unrestricted Subsidiaries...................................25
ARTICLE II
The Credits
SECTION 2.01. Commitments..............................................................................26
SECTION 2.02. Loans and Borrowings.....................................................................27
SECTION 2.03. Requests for Borrowings..................................................................28
SECTION 2.04. Letters of Credit........................................................................29
SECTION 2.05. Funding of Borrowings....................................................................33
SECTION 2.06. Interest Elections.......................................................................33
SECTION 2.07. Termination and Reduction of Commitments.................................................35
SECTION 2.08. Repayment of Loans; Evidence of Debt.....................................................36
SECTION 2.09. Prepayment of Loans......................................................................39
SECTION 2.10. Fees.....................................................................................42
SECTION 2.11. Interest.................................................................................44
SECTION 2.12. Alternate Rate of Interest...............................................................44
SECTION 2.13. Increased Costs..........................................................................45
SECTION 2.14. Break Funding Payments...................................................................46
SECTION 2.15. Taxes....................................................................................47
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing Of Set-Offs..............................48
SECTION 2.17. Mitigation Obligations; Replacement of Lenders...........................................50
ARTICLE III
Guarantee by Subsidiary Guarantors
SECTION 3.01. The Guarantee............................................................................51
SECTION 3.02. Obligations Unconditional................................................................51
SECTION 3.03. Reinstatement............................................................................52
SECTION 3.04. Subrogation..............................................................................52
SECTION 3.05. Remedies.................................................................................52
SECTION 3.06. Instrument for the Payment of Money......................................................52
(i)
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SECTION 3.07. Continuing Guarantee.....................................................................53
SECTION 3.08. Rights of Contribution...................................................................53
SECTION 3.09. General Limitation on Guarantee Obligations..............................................53
ARTICLE IV
Representations and Warranties
SECTION 4.01. Organization; Powers.....................................................................54
SECTION 4.02. Authorization; Enforceability............................................................54
SECTION 4.03. Governmental Approvals; No Conflicts.....................................................54
SECTION 4.04. Financial Condition; No Material Adverse Change; Year 2000 Issues........................55
SECTION 4.05. Properties...............................................................................56
SECTION 4.06. Litigation and Environmental Matters.....................................................57
SECTION 4.07. Compliance with Laws and Agreements......................................................57
SECTION 4.08. Investment and Holding Company Status....................................................57
SECTION 4.09. Taxes....................................................................................57
SECTION 4.10. ERISA....................................................................................57
SECTION 4.11. Disclosure...............................................................................58
SECTION 4.12. Capitalization...........................................................................58
SECTION 4.13. Material Agreements and Liens............................................................58
SECTION 4.14. Subsidiaries, Etc........................................................................59
SECTION 4.15. Chancellor Acquisition...................................................................59
SECTION 4.16. Senior Notes Indenture...................................................................60
ARTICLE V
Conditions
SECTION 5.01. Effective Date...........................................................................60
SECTION 5.02. Incremental Loan Borrowings..............................................................63
SECTION 5.03. Each Extension of Credit.................................................................63
ARTICLE VI
Affirmative Covenants
SECTION 6.01. Financial Statements and Other Information...............................................64
SECTION 6.02. Notices of Material Events...............................................................66
SECTION 6.03. Existence; Conduct of Business...........................................................67
SECTION 6.04. Payment of Obligations...................................................................67
SECTION 6.05. Maintenance of Properties; Insurance.....................................................67
SECTION 6.06. Books and Records; Inspection Rights.....................................................67
SECTION 6.07. Fiscal Year..............................................................................67
(ii)
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SECTION 6.08. Compliance with Laws.....................................................................68
SECTION 6.09. Use of Proceeds..........................................................................68
SECTION 6.10. Certain Obligations Respecting Restricted Subsidiaries and
Collateral Security..............................................................68
ARTICLE VII
Negative Covenants
SECTION 7.01. Indebtedness.............................................................................69
SECTION 7.02. Liens....................................................................................70
SECTION 7.03. Contingent Liabilities; Surety Bonds.....................................................72
SECTION 7.04. Fundamental Changes......................................................................72
SECTION 7.05. Investments, Loans, Advances, Guarantees and Acquisitions; Hedging
Agreements.......................................................................74
SECTION 7.06. Dividend Payments........................................................................75
SECTION 7.07. Transactions with Affiliates.............................................................76
SECTION 7.08. Restrictive Agreements...................................................................77
SECTION 7.09. Certain Financial Covenants..............................................................78
SECTION 7.10. Lines of Business........................................................................79
SECTION 7.11. Subordinated Indebtedness................................................................79
SECTION 7.12. Modifications of Certain Documents.......................................................79
ARTICLE VIII
Events of Default....................................................80
ARTICLE IX
The Administrative Agent.............................................83
ARTICLE X
Miscellaneous
SECTION 10.01. Notices.................................................................................85
SECTION 10.02. Waivers; Amendments.....................................................................86
SECTION 10.03. Expenses; Indemnity; Damage Waiver......................................................88
SECTION 10.04. Successors and Assigns..................................................................89
SECTION 10.05. Survival................................................................................92
SECTION 10.06. Counterparts; Integration; Effectiveness................................................93
SECTION 10.07. Severability............................................................................93
SECTION 10.08. Right of Setoff.........................................................................93
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process..............................94
(iii)
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SECTION 10.10. WAIVER OF JURY TRIAL....................................................................94
SECTION 10.11. Headings................................................................................95
SECTION 10.12. Release of Collateral and Guarantees....................................................95
SECTION 10.13. Successor Facility......................................................................95
SECTION 10.14. Existing Credit Agreement...............................................................95
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 4.06 -- Disclosed Matters
Schedule 4.11 -- Supplemental Disclosure
Schedule 4.13 -- Material Agreements and Liens
Schedule 4.14 -- Subsidiaries
Schedule 7.01 -- Existing Indebtedness
Schedule 7.02 -- Existing Liens
Schedule 7.03 -- Existing Guarantees
Schedule 7.07 -- Certain Existing Affiliate Transactions
Schedule 7.08 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Counsel to the Credit Parties
Exhibit C -- Form of Opinion of Special Counsel
Exhibit D-1 -- Form of Pledge Agreement
Exhibit D-2 -- Form of Holdings Guaranty and Pledge Agreement
Exhibit E -- Form of Joinder Agreement
(iv)
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CREDIT AGREEMENT dated as of August 13, 1999 between XXXXX
MEDIA CORP., the SUBSIDIARY GUARANTORS party hereto, the LENDERS party hereto
and THE CHASE MANHATTAN BANK, as Administrative Agent.
The Borrower, the Subsidiary Guarantors, the lenders named
therein (including certain of the Lenders hereunder) and The Chase Manhattan
Bank, as Administrative Agent, are party to an Amended and Restated Credit
Agreement dated as of July 16, 1998 (the "Existing Credit Agreement"). The
Borrower has requested the Lenders to extend credit, by means of loans and
letters of credit, in an aggregate amount up to but not exceeding $1,000,000,000
(which amount may, in the circumstances hereinafter provided, be increased to
$1,400,000,000) to (i) enable the Borrower to consummate the Chancellor
Acquisition (as defined herein), (ii) refinance indebtedness outstanding under
the Existing Credit Agreement, and (iii) provide funds for future acquisitions
and the general corporate purposes of the Borrower and its Restricted
Subsidiaries (as defined herein). The Lenders are willing to extend such credit
upon the terms and conditions of this Agreement and, accordingly, the parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date hereof, by which (i) the Borrower
and/or any of its Subsidiaries acquires the business of, or all or substantially
all of the assets of, any firm, corporation or division thereof located in a
specific geographic area or areas, whether through purchase of assets, purchase
of stock, merger or otherwise or (ii) any Person that was not theretofore a
Subsidiary of the Borrower becomes a Subsidiary of the Borrower.
"Adjusted Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the Adjusted Base Rate due
to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, Base CD Rate or the Federal Funds Effective Rate, respectively.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank in its
capacity as administrative agent for the Lenders hereunder.
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"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
Notwithstanding the foregoing, (a) no individual shall be an Affiliate of the
Borrower or any of its Restricted Subsidiaries solely by reason of his or her
being a director, officer or employee of the Borrower or any of its Restricted
Subsidiaries and (b) none of the Subsidiary Guarantors shall be Affiliates of
the Borrower or any of its Restricted Subsidiaries.
"Applicable Percentage" means (a) with respect to any
Revolving Credit Lender for purposes of Section 2.04, the percentage of the
total Revolving Credit Commitments represented by such Lender's Revolving Credit
Commitment, (b) with respect to any Lender in respect of any indemnity claim
under Section 10.03(c) relating to the Administrative Agent under this
Agreement, the percentage of the total Commitments or Loans of all Classes
hereunder represented by the aggregate amount of such Lender's Commitment or
Loans of all Classes hereunder.
"Applicable Margin" means (a) for any Type of Revolving Credit
Loans or Tranche A Term Loans, the respective rates indicated below for Loans of
such Type based upon the Total Debt Ratio as at the last day of the fiscal
quarter most recently ended as to which the Borrower has delivered financial
statements pursuant to Section 6.01 (or, prior to the delivery of the first of
such statements after the Effective Date, upon the Total Debt Ratio set forth in
the certificate of a Financial Officer delivered pursuant to Section 5.01(k));
(b) for Tranche B Term Loans, (i) 1.25% in the case of Adjusted Base Rate Loans,
and (ii) 2.25% in the case of Eurodollar Loans; and (c) for any Type of
Incremental Loans of any Series, such rates of interest as shall be agreed upon
at the time Incremental Loan Commitments of such Series are established:
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Range Applicable Margin (% p.a.)
of -----------------------------------------------
Total Debt Ratio Base Rate Loans Eurodollar Loans
---------------- --------------- ----------------
Greater than or equal
to 5.50 to 1
.75% 2.00%
Less than 5.50 to 1 and
greater than or equal to
5.00 to 1
.50% 1.75%
Less than 5.00 to 1 and
greater than or equal to
4.50 to 1
.25% 1.50%
Less than 4.50 to 1 and
greater than or equal to
4.00 to 1
.00% 1.25%
Less than 4.00 to 1
.00% 1.00%
Each change in the "Applicable Margin" based upon any change
in the Total Debt Ratio shall become effective for purposes of the accrual of
interest hereunder (including in respect of all then-outstanding Loans) on the
date three Business Days after the delivery to the Administrative Agent of the
financial statements of the Borrower for the most recently ended fiscal quarter
pursuant to Section 6.01, and shall remain effective for such purpose until
three Business Days after the next delivery of such financial statements to the
Administrative Agent hereunder.
Notwithstanding the foregoing, in the event the Borrower
consummates any Acquisition or Disposition for aggregate consideration of
$25,000,000 or more, the Borrower shall forthwith deliver to the Administrative
Agent a certificate of a Financial Officer, in form and detail satisfactory to
the Administrative Agent, setting forth a redetermination of the Total Debt
Ratio reflecting such Acquisition or Disposition, and on the date three Business
Days after the delivery of such certificate, the Applicable Margin shall be
adjusted to give effect to such redetermination of the Total Debt Ratio.
Anything in this Agreement to the contrary notwithstanding,
the Applicable Margin shall be the highest rates provided for above if the
certificate of a Financial Officer shall not be delivered by the times provided
in Section 6.01 or within three Business Days after the occurrence of any
Acquisition or Disposition described above (but only, in the case of this
paragraph, with respect to periods prior to the delivery of such certificate).
"Approved Fund" means, with respect to any Lender that is a
fund that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
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"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Base CD Rate" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Base Rate", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted Base Rate.
"Basic Documents" means the Loan Documents, the Senior
Subordinated Notes Indenture and the New Senior Subordinated Notes Indenture (or
any applicable governing agreement for any Refunding Indebtedness) and the
Senior Secured Notes (and any related agreement).
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Xxxxx Media Corp. (formally known as Xxxxx
Advertising Company), a Delaware corporation.
"Borrowing" means Loans of a particular Class of the same
Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in U.S. dollar deposits in the London interbank
market.
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"Capital Expenditures" means, for any period, the sum for the
Borrower or any of its Restricted Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP) of the aggregate amount of
expenditures (including the aggregate amount of Capital Lease Obligations
incurred during such period) made to acquire or construct fixed assets, plant
and equipment (including renewals, improvements and replacements, but excluding
repairs) during such period computed in accordance with GAAP; provided that such
term shall not include any such expenditures in connection with any Acquisition
or any replacement or repair of Property affected by a Casualty Event.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty Event" means, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"Chancellor" means, collectively, Chancellor Media Outdoor
Corporation, a Delaware corporation, and Chancellor Media Whiteco Outdoor
Corporation, a Delaware Corporation.
"Chancellor Acquisition" means the Acquisition of Chancellor
by the Borrower pursuant to the Chancellor Acquisition Agreement, consisting of
the purchase by the Borrower of the shares of capital stock of Chancellor Media
Outdoor Corporation from Chancellor Media Corporation of Los Angeles, and of the
shares of capital stock of Chancellor Media Whiteco Outdoor Corporation from
Chancellor Mezzanine Holdings Corporation.
"Chancellor Acquisition Agreement" means the Amended and
Restated Stock Purchase Agreement dated as of July 12, 1999 between the
Borrower, as purchaser, and Chancellor Mezzanine Holdings Corporation and
Chancellor Media Corporation of Los Angeles, as sellers.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Lender (or, for purposes of Section 2.13(b), by any lending office
of such Lender or by such Lender's or the Issuing Lender's holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.
"Chase" means The Chase Manhattan Bank, a New York banking
corporation.
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"Class", when used in reference to any Loan, Borrowing or
Commitment, refers to whether such Loan, the Loans comprising such Borrowing or
the Loans that a Lender holding such Commitment is obligated to make, are
Revolving Credit Loans, Tranche A Term Loans, Tranche B Term Loans, or
Incremental Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitments" means the Revolving Credit Commitments, Tranche
A Commitments, Tranche B Commitments and Incremental Loan Commitments, as
applicable.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Confidential Information Memorandum" means the Confidential
Information Memorandum dated July, 1999 with respect to the syndication of the
credit facilities provided herein.
"Credit Parties" means, collectively, Holdings, the Borrower
and the Subsidiary Guarantors.
"Debt Service" means, for any period, the sum, for Holdings
and the Borrower and its Restricted Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the following: (a) the
amount, if any, by which the aggregate principal amount of Revolving Credit
Loans outstanding hereunder at the beginning of such period shall exceed the
aggregate amount of the Revolving Credit Commitments scheduled to be in effect
at the end of such period after giving effect to any reductions of such
Commitments scheduled to occur during such period pursuant to Section 2.07 plus
(b) all regularly scheduled payments or regularly scheduled mandatory
prepayments of principal of any other Indebtedness (including the Tranche A Term
Loans, the Tranche B Term Loans and the Incremental Loans and the principal
component of any payments in respect of Capital Lease Obligations, but excluding
any prepayments pursuant to Section 2.09) made during such period plus (c) all
Interest Expense for such period.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 4.06.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by the
Borrower or any of its Restricted Subsidiaries to any other Person excluding any
sale, assignment, transfer or other disposition of (i) any property sold or
disposed of in the ordinary course of business and on ordinary business terms,
(ii) any obsolete or worn-out tools and equipment no longer used or useful in
the business
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of the Borrower and its Restricted Subsidiaries and (iii) any Collateral under
and as defined in the Pledge Agreement pursuant to an exercise of remedies by
the Administrative Agent under Section 5.05 thereof.
"Disposition Investment" means, with respect to any
Disposition, any promissory notes or other evidences of indebtedness or
Investments received by the Borrower or any of its Restricted Subsidiaries in
connection with such Disposition.
"Dividend Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of the Borrower, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such shares of capital stock of the Borrower (and including
also any payments to any Person, such as "phantom stock" payments, where the
amount thereof is calculated with reference to the fair market or equity value
of the Borrower or any of its Subsidiaries), but excluding dividends payable
solely in shares of common stock of the Borrower.
"EBITDA" means, for any period, operating income for the
Borrower and its Restricted Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP) for such period (calculated before
taxes, Interest Expense, depreciation, amortization and any other non-cash
income or charges accrued for such period and (except to the extent received or
paid in cash by the Borrower or any of its Restricted Subsidiaries) income or
loss attributable to equity in Affiliates for such period) excluding any
extraordinary and unusual gains or losses during such period and excluding the
proceeds of any Casualty Events and Dispositions.
Notwithstanding the foregoing, except as otherwise provided in
Section 7.04(f), if during any period for which EBITDA is being determined the
Borrower shall have consummated any Acquisition (including the Chancellor
Acquisition) or Disposition then, for all purposes of this Agreement (other than
for purposes of the definition of Excess Cash Flow), EBITDA shall be determined
on a pro forma basis as if such Acquisition or Disposition had been made or
consummated on the first day of such period.
"Effective Date" means the date on which the conditions
specified in Section 5.01 are satisfied (or waived in accordance with Section
10.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or
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disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Hedging Arrangement" means any agreement or other
arrangement pursuant to which the Borrower or any of its Restricted Subsidiaries
shall agree to purchase shares of capital stock of the Borrower from another
Person at a fixed price or formula (or to make payments to another Person
calculated with reference to the price of any such shares), whether such
agreement or other arrangement arises in connection with an acquisition of a
business or property, an employee benefit plan, a hedging transaction or
otherwise.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any stockholders' or voting trust agreements) for the
issuance or sale of, or securities convertible into, any additional shares of
capital stock of any class, or partnership or other ownership interests of any
type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived), (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived, (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan, (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan, or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
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"Event of Default" has the meaning assigned to such term in
Article VIII.
"Excess Cash Flow" means, for any period, the excess of (a)
EBITDA for such period over (b) the sum of (i) Debt Service for such period
(other than the portion thereof attributable to Holdings) plus (ii) the
aggregate amount of all Capital Expenditures and cash payments made by the
Borrower and its Restricted Subsidiaries in respect of any Acquisitions made by
the Borrower and its Restricted Subsidiaries during such period plus (iii) the
aggregate amount paid, or required to be paid, in cash in respect of income,
franchise, real estate and other like taxes for such period (to the extent not
deducted in determining EBITDA for such period) plus (iv) the aggregate amount
of prepayments of Term Loans and Incremental Loans made during such period
pursuant to Section 2.09(a) (other than that portion, if any, of such
prepayments applied to installments of the Term Loans and Incremental Loans
falling due in such period) and the aggregate amount of voluntary reductions of
Revolving Credit Commitments made during such period pursuant to Section
2.07(c).
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, the Issuing Lender or any other recipient of any payment to
be made by or on account of any obligation of the Borrower hereunder, (a)
income, net worth or franchise taxes imposed on (or measured by) its net income
or net worth by the United States of America, or by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located or in which it is taxable solely on account of some connection other
than the execution, delivery or performance of this Agreement or the receipt of
income hereunder, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the
Borrower is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.17(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement or is attributable to
such Foreign Lender's failure or inability to comply with Section 2.15(e),
except to the extent that such Foreign Lender's assignor (if any) was entitled,
at the time of assignment, to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.15(a).
"Existing Credit Agreement" has the meaning assigned to such
term in the preamble to this Agreement.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of l%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower, as the
case may be.
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"Fixed Charges Ratio" means, as at any date, the ratio of (a)
EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) the sum for Holdings and the Borrower
and its Restricted Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (i) all Debt Service for
such period plus (ii) the aggregate amount of all Capital Expenditures made
during such period plus (iii) the aggregate amount paid, or required to be paid,
in cash in respect of income, franchise, real estate and other like taxes for
such period (to the extent not deducted in determining EBITDA for such period).
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary of the Borrower
organized in a jurisdiction other than the United States of America, any State
thereof, or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" means a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as a verb shall
have a correlative meaning.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
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"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Holdings" means Xxxxx Advertising Company, a Delaware
corporation of which the Borrower is a Wholly Owned Subsidiary.
"Holdings Guaranty and Pledge Agreement" means a Guaranty and
Pledge Agreement substantially in the form of Exhibit D-2 between Holdings and
the Administrative Agent.
"Holdings Indenture" means the Indenture pursuant to which the
Senior Notes have been issued.
"Inactive Subsidiary" means, as at any date, any Subsidiary of
the Borrower that, as at the end of and for the quarterly accounting period
ending on or most recently ended prior to such date, shall have less than $1,000
in assets.
"Incremental Loan" has the meaning assigned to such term in
Section 2.01(d).
"Incremental Loan Commitment" means, with respect to each
Lender, the amount of the offer of such Lender to make Incremental Loans of any
Series that is accepted by the Borrower in accordance with the provisions of
Section 2.01(d), as such amount may be (a) reduced from time to time pursuant to
Sections 2.07 and 2.09 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The aggregate
amount of the Incremental Loan Commitments of all Series shall not exceed
$400,000,000.
"Incremental Loan Commitment Termination Date" means the
Quarterly Date falling on or nearest to December 31, 2001.
"Incremental Loan Lenders" means, in respect of any Series of
Incremental Loans, (a) initially, the Lenders whose offers to make Incremental
Loans of such Series shall have been accepted by the Borrower in accordance with
the provisions of Section 2.01(d) and (b) thereafter, the Lenders from time to
time holding Incremental Loans of such Series and/or Incremental Loan
Commitments of such Series after giving effect to any assignments thereof
permitted by Section 10.04.
"Indebtedness" means, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade accounts are
payable within 120 days of the date the respective goods are delivered or the
respective services are rendered; (c) Indebtedness of others secured by a Lien
on the Property of such Person, whether or not the respective indebtedness so
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secured has been assumed by such Person; (d) obligations of such Person in
respect of letters of credit or similar instruments issued or accepted by banks
and other financial institutions for account of such Person; (e) Capital Lease
Obligations of such Person; (f) Indebtedness of others Guaranteed by such
Person; and (g) obligations under Equity Hedging Arrangements (and, for purposes
hereof, the amount of Indebtedness under an Equity Hedging Arrangement shall be
deemed to be equal to the aggregate maximum contingent or potential liability
under such Equity Hedging Arrangement). The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person's ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
Notwithstanding the foregoing, the following items shall not
be deemed "Indebtedness" for purposes hereof: (i) obligations under Hedging
Agreements; (ii) obligations in respect of Surety Bonds (other than letters of
credit supporting obligations in respect of Surety Bonds, as to which clause
(iii) below shall apply, and other than Surety Bonds supporting obligations that
would otherwise constitute Indebtedness under this definition) to the extent
that the aggregate amount of all such obligations does not exceed $40,000,000;
and (iii) obligations in respect of the undrawn face amount of letters of credit
(other than letters of credit supporting obligations that would otherwise
constitute Indebtedness under this definition) to the extent that the aggregate
amount of all such obligations does not exceed $10,000,000.
"Indemnified Taxes" means all Taxes other than (a) Excluded
Taxes and Other Taxes and (b) amounts constituting penalties or interest imposed
with respect to Excluded Taxes or Other Taxes.
"Interest Coverage Ratio" means, as at any date, the ratio of
(a) EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Interest Expense for such period.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.06.
"Interest Expense" means, for any period, the sum, for
Holdings and the Borrower and its Restricted Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP), of the
following: (a) all interest in respect of Indebtedness accrued or capitalized
during such period (whether or not actually paid during such period) plus (b)
the net amounts payable (or minus the net amounts receivable) under Hedging
Agreements accrued during such period (whether or not actually paid or received
during such period) including, without limitation, fees, but excluding
reimbursement of legal fees and other similar transaction costs and excluding
payments required by reason of the early termination of Hedging Agreements in
effect on the date hereof plus (c) all fees, including letter of credit fees and
expenses, incurred hereunder after the Effective Date.
Notwithstanding the foregoing, if during any period for which
Interest Expense is being determined the Borrower shall have consummated any
Acquisition (including the Chancellor Acquisition) or Disposition then, for all
purposes of this Agreement (other than for
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purposes of the definition of Excess Cash Flow), Interest Expense shall be
determined on a pro forma basis as if such Acquisition or Disposition (and any
Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in
connection with such Acquisition or repaid as a result of such Disposition) had
been made or consummated (and such Indebtedness incurred or repaid) on the first
day of such period.
"Interest Payment Date" means (a) with respect to any Base
Rate Loan, each Quarterly Date and (b) with respect to any Eurodollar Loan, the
last Business Day of the Interest Period applicable to the Borrowing of which
such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each Business Day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, with the consent of each Lender of the relevant Class, nine or
twelve months) thereafter, as the Borrower may elect; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing. Notwithstanding the foregoing,
(v) if any Interest Period for any Revolving Credit Borrowing
would otherwise end after the Revolving Credit Termination Date, such
Interest Period shall end on the Revolving Credit Termination Date,
(w) no Interest Period for any Revolving Credit Borrowing may
commence before and end after any Revolving Credit Commitment Reduction
Date unless, after giving effect thereto (and taking into account any
then-outstanding Letters of Credit), the aggregate principal amount of
Revolving Credit Loans having Interest Periods that end after such
Revolving Credit Commitment Reduction Date shall be equal to or less
than the aggregate principal amount of Revolving Credit Loans scheduled
to be outstanding after giving effect to the payments of principal
required to be made on such Revolving Credit Commitment Reduction Date,
(x) no Interest Period for any Term Loan Borrowing may
commence before and end after any Principal Payment Date unless, after
giving effect thereto, the aggregate principal amount of Term Loans
having Interest Periods that end after such Principal Payment Date
shall be equal to or less than the aggregate principal amount of Term
Loans scheduled to be outstanding after giving effect to the payments
of principal required to be made on such Principal Payment Date,
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(y) no Interest Period for any Incremental Loan Borrowing of
any Series may commence before and end after any Principal Payment Date
unless, after giving effect thereto, the aggregate principal amount of
the Incremental Loans of such Series having Interest Periods that end
after such Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Incremental Loans of such Series
scheduled to be outstanding after giving effect to the payments of
principal required to be made on such Principal Payment Date, and
(z) notwithstanding the foregoing clauses (v), (w), (x) and
(y), no Interest Period shall have a duration of less than one month
and, if the Interest Period for any Eurodollar Loan would otherwise be
a shorter period, such Loan shall not be available hereunder as a
Eurodollar Loan for such period.
"Investment" means, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of, or capital contribution to, any other Person or any
agreement to make any such acquisition or capital contribution (including,
without limitation, any "short sale" or any sale of any securities at a time
when such securities are not owned by the Person entering into such short sale);
(b) the making of any deposit with, or advance, loan or other extension of
credit to, any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person, but excluding any such advance, loan or
extension of credit having a term not exceeding 180 days representing the
purchase price of inventory or supplies sold by such Person in the ordinary
course of business); or (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other liability of any
other Person and (without duplication) any amount committed to be advanced, lent
or extended to such Person.
Notwithstanding the foregoing, the following items shall not
be deemed "Investments" for purposes hereof: (i) Capital Expenditures, (ii)
Acquisitions and (iii) obligations (including, without limitation, deposits) in
connection with Surety Bonds.
"Issuing Lender" means The Chase Manhattan Bank, in its
capacity as the issuer of Letters of Credit hereunder.
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit E.
"LC Disbursement" means a payment made by the Issuing Lender
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Credit
Lender at any time shall be its Applicable Percentage of the total LC Exposure
at such time.
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20
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"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant
to this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to U.S. dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for U.S. dollar deposits with
a maturity comparable to such Interest Period. In the event that such rate is
not available at such time for any reason, then the "LIBO Rate" with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which
U.S. dollar deposits of $5,000,000, and for a maturity comparable to such
Interest Period, are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement
(other than an operating lease) (or any financing lease having substantially the
same economic effect as any of the foregoing) relating to such asset and (c) in
the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.
"Loan Documents" means this Agreement, any promissory notes
evidencing Loans hereunder and the Security Documents.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Restricted Subsidiaries (or of the Borrower
and all of its Subsidiaries) taken as a whole, (b) the ability of any Credit
Party to perform any of its obligations under this Agreement or the other Loan
Documents or (c) the rights of or benefits available to the Lenders under this
Agreement and the other Loan Documents.
"Material Indebtedness" means Indebtedness (other than the
Loans or Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of Holdings, the Borrower or any of its
Restricted Subsidiaries in an aggregate principal amount exceeding $10,000,000.
For purposes of determining Material Indebtedness, the "principal amount" of the
obligations of any Person in respect of any Hedging Agreement at any time shall
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be the maximum aggregate amount (giving effect to any netting agreements) that
such Person would be required to pay if such Hedging Agreement were terminated
at such time.
"Missouri Partnership" means Missouri Logos, a Missouri
general partnership, in which MIL is a general partner.
"MIL" means Missouri Logos, Inc., a Wholly Owned Subsidiary of
Interstate Logos, Inc., a Wholly Owned Subsidiary of the Borrower.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition; and
(ii) in the case of any Casualty Event, the aggregate amount
of proceeds of insurance, condemnation awards and other compensation
received by the Borrower and its Restricted Subsidiaries in respect of
such Casualty Event net of (A) reasonable expenses incurred by the
Borrower and its Restricted Subsidiaries in connection therewith and
(B) contractually required repayments of Indebtedness to the extent
secured by a Lien on such property and any income and transfer taxes
payable by the Borrower or any of its Restricted Subsidiaries in
respect of such Casualty Event.
"Net Cash Payments" means, with respect to any Disposition,
the aggregate amount of all cash payments received by the Borrower and its
Restricted Subsidiaries directly or indirectly in connection with such
Disposition, whether at the time of such Disposition or after such Disposition
under deferred payment arrangements or Investments entered into or received in
connection with such Disposition (including, without limitation, Disposition
Investments); provided that
(a) Net Cash Payments shall be net of (i) the amount of any
legal, title, transfer and recording tax expenses, commissions and
other fees and expenses payable by the Borrower and its Restricted
Subsidiaries in connection with such Disposition and (ii) any Federal,
state and local income or other taxes estimated to be payable by the
Borrower and its Restricted Subsidiaries as a result of such
Disposition, but only to the extent that such estimated taxes are in
fact paid to the relevant Federal, state or local governmental
authority within twelve months of the date of such Disposition; and
(b) Net Cash Payments shall be net of any repayments by the
Borrower or any of its Restricted Subsidiaries of Indebtedness to the
extent that (i) such Indebtedness is secured by a Lien on the property
that is the subject of such Disposition and (ii) the transferee of (or
holder of a Lien on) such property requires that such Indebtedness be
repaid as a condition to the purchase of such property.
Credit Agreement
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"New Senior Subordinated Notes" means the notes issued after
the date hereof in accordance with the requirements of Section 7.01(b).
"New Senior Subordinated Notes Indentures" means the
Indentures pursuant to which New Senior Subordinated Notes are issued.
"Obligors" means, collectively, the Borrower and the
Subsidiary Guarantors.
"OCI" means Outdoor Communications Inc., a Delaware
corporation.
"OCI Credit Agreement" means the Credit Agreement dated as of
August 15, 1997 among OCI, certain subsidiaries of OCI, certain lenders party
thereto, and Chase, as Administrative Agent.
"OCI Indenture" means the Indenture dated as of August 15,
1997 between OCI, OCI (N) Corp., OCI (S) Corp. and OCIH LLC, as Guarantors, and
First Union National Bank, as Trustee.
"OCI Subordinated Indebtedness" means Indebtedness in respect
of the OCI Subordinated Notes.
"OCI Subordinated Notes" means the 9-1/4% Senior Subordinated
Notes due 2007 issued under the OCI Indenture in the original principal amount
of $105,000,000.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement and the other
Loan Documents, provided that there shall be excluded from "Other Taxes" all
Excluded Taxes.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard and
Poor's Ratings Service or from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $250,000,000; and
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(x) xxxxx xxxxxxxxxxxxxx xxxxxxxxxx agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means a Pledge Agreement substantially in
the form of Exhibit D-1 between the Obligors and the Administrative Agent.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank, as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Principal Payment Dates" means (i) the Quarterly Dates
falling on or nearest to March 31, June 30, September 31 and December 31 of each
year, commencing with September 30, 2001 through and including June 30, 2006 and
(ii) March 1, 2006 and August 1, 2006 (or, if such day is not a Business Day,
the next preceding Business Day).
"Property" means any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Qualified Holdings Obligations" means, collectively,
obligations of the following categories incurred from time to time by Holdings
on behalf of the Borrower and its Subsidiaries: (i) directors' fees, and fees,
costs and expenses in respect of professional and related services which may be
rendered to the Borrower and its Subsidiaries from time to time, including the
fees and expenses of accountants, lawyers, investment bankers and other
consultants retained in connection with matters affecting the Borrower and its
Subsidiaries collectively, (ii) premiums, fees and expenses in connection with
insurance policies and employee benefit programs (including workmen's
compensation) maintained on behalf of the Borrower or any of its Subsidiaries,
(iii) fees, costs and expenses incurred in connection with acquisitions and
financings, including banking and underwriting fees (including underwriters
discounts) and (iv) fees, costs and expenses in connection with the purchase by
the Borrower and its Subsidiaries of data communications services.
"Qualified Xxxxxx Partnership" means any general or limited
partnership, all of the partnership interests of which are owned by (a) Xxxxx X.
Xxxxxx, Xx., (b) his wife, (c) his children, (d) his grandchildren, or (e)
trusts of which he, his wife, his children and his grandchildren are the sole
beneficiaries and for which one or more of such individuals are the sole
trustee(s).
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"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date of this Agreement.
"Refunding Indebtedness" has the meaning assigned to such term
in Section 7.01(c).
"Register" has the meaning assigned to such term in Section
10.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Loans,
LC Exposure and unused Commitments representing at least a majority of the sum
of the total Loans, LC Exposure and unused Commitments at such time. References
herein to the "Required Revolving Credit Lenders", "Required Tranche A Lenders",
"Required Tranche B Lenders" and "Required Incremental Loan Lenders" of any
Series, shall refer to the Lenders of such Class holding at least a majority of
the sum of the total Loans, LC Exposure (if applicable) and unused Commitments
of such Class at such time.
"Restricted Subsidiary" means any Subsidiary of the Borrower
other than an Unrestricted Subsidiary.
"Reserved Commitment Amount" has the meaning assigned to such
term in Section 2.01(a).
"Revolving Credit Availability Period" means the period from
and including the Effective Date to but excluding the earlier of (a) the
Revolving Credit Termination Date and (b) the date of termination of the
Revolving Credit Commitments.
"Revolving Credit Commitment" means, with respect to each
Lender, the commitment of such Lender to make Revolving Credit Loans and to
acquire participations in Letters of Credit hereunder, as such commitment may be
(a) reduced from time to time pursuant to Sections 2.07 and 2.09 and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each Lender's Revolving Credit
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Revolving Credit
Commitment, as applicable. The aggregate original amount of the Revolving Credit
Commitments is $350,000,000.
"Revolving Credit Commitment Reduction Dates" means the
Quarterly Dates falling on or nearest to March 31, June 30, September 30 and
December 31 of each year, commencing with March 31, 2002 through and including
December 31, 2005, provided that the final Revolving Credit Commitment Reduction
Date shall occur on March 1, 2006 (or, if such day is not a Business Day, the
next preceding Business Day).
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"Revolving Credit Exposure" means, with respect to any
Revolving Credit Lender at any time, the sum of the outstanding principal amount
of such Lender's Revolving Credit Loans and its LC Exposure at such time.
"Revolving Credit Lender" means (a) initially, a Lender that
has a Revolving Credit Commitment set forth opposite its name on Schedule 2.01
and (b) thereafter, the Lenders from time to time holding Revolving Credit Loans
and Revolving Credit Commitments, after giving effect to any assignments thereof
permitted by Section 10.04.
"Revolving Credit Loan" means a Loan made pursuant to Section
2.01(a) that utilizes the Revolving Credit Commitment.
"Revolving Credit Termination Date" means March 1, 2006 (or,
if such day is not a Business Day, the next preceding Business Day).
"Security Documents" means the Pledge Agreement, the Holdings
Guaranty and Pledge Agreement and all Uniform Commercial Code financing
statements required by the Pledge Agreement and the Holdings Guaranty and Pledge
Agreement to be filed with respect to the security interests created pursuant
thereto.
"Senior Debt Ratio" means, as at any date, the ratio of (a)
all Indebtedness (other than Subordinated Indebtedness) of the Borrower and its
Restricted Subsidiaries (determined on a consolidated basis without duplication
in accordance with GAAP) on such date to (b) EBITDA for the period of four
consecutive quarters ending on or most recently ended prior to such date.
"Senior Notes" means the 5-1/4% Convertible Notes due
September 15, 2006, issued by Holdings pursuant to an Indenture dated as of
August 10, 1999 between Holdings and State Street Bank and Trust Company, as
trustee, in an original aggregate maximum face amount equal to $287,500,000.
"Senior Secured Notes" means the Borrower's 11% Senior Notes
issued pursuant to a Second Supplemental Indenture in the form of an Amended and
Restated Indenture dated as of November 8, 1996, amending and restating in its
entirety the Borrower's 11% Senior Secured Notes due May 15, 2003 issued on May
13, 1993 in an original aggregate face amount equal to $100,000,000 (of which
not more than $1,172,000 are outstanding on the date hereof).
"Senior Subordinated Notes" means, collectively, (a) the
9-5/8% Senior Subordinated Notes due 2006 of the Borrower in the original
principal amount of $255,000,000 and (b) the 8-5/8% Senior Subordinated Notes
due 2007 of the Borrower in the original principal amount of $200,000,000.
"Senior Subordinated Notes Indenture" means the Indentures
pursuant to which the Senior Subordinated Notes have been issued.
"Series" has the meaning assigned to such term in Section
2.01(d).
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"Significant Subsidiary Guarantor" means, as at any date, any
Subsidiary Guarantor having assets with a fair market value of $40,000,000 or
more.
"Special Counsel" means Milbank, Tweed, Xxxxxx & XxXxxx LLP,
in its capacity as special counsel to The Chase Manhattan Bank, as
Administrative Agent of the credit facilities contemplated hereby.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject (a) with respect to the Base CD Rate, for new negotiable nonpersonal
time deposits in dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subordinated Indebtedness" means, collectively, (i)
Indebtedness in respect of the Senior Subordinated Notes and the New Senior
Subordinated Notes (and, effective upon any extension, renewal, refunding or
replacement of any of the Senior Subordinated Notes as contemplated in Section
7.01(c), any Refunding Indebtedness), (ii) the 8% Series A Unsecured
Subordinated Discount Debentures of the Borrower due 2001 (of which $1,273,134
are outstanding on the date hereof) and (iii) the 8% unsecured Subordinated
Notes of the Borrower due 2006 (of which $14,666,665 are outstanding on the date
hereof).
"Subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent. References herein to
"Subsidiaries" shall, unless the context requires otherwise, be deemed to be
references to Subsidiaries of the Borrower.
"Subsidiary Guarantors" means the Persons listed under the
caption "SUBSIDIARY GUARANTORS" on the signature pages hereto or which become a
party hereto as a "Subsidiary Guarantor" hereunder pursuant to any Joinder
Agreement.
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"Surety Bonds" means surety or other similar bonds required to
be posted by the Borrower and its Restricted Subsidiaries in the ordinary course
of their respective businesses or posted on behalf of Affiliates in the ordinary
course of their respective businesses.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loans" means, collectively, the Tranche A Term Loans and
the Tranche B Term Loans.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Total Debt Ratio" means, as at any date, the ratio of (a) all
Indebtedness of Holdings and the Borrower and its Restricted Subsidiaries
(determined on a consolidated basis without duplication in accordance with GAAP)
on such date to (b) EBITDA for the period of four consecutive fiscal quarters
ending on or most recently ended prior to such date.
"Tranche A Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Tranche A Term Loans on the Effective
Date, expressed as an amount representing the maximum aggregate principal amount
of the Tranche A Term Loans to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Sections 2.07 and
2.09 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 10.04. The initial amount of each Lender's
Tranche A Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Tranche A
Commitment, as applicable. The aggregate original amount of the Tranche A
Commitments is $450,000,000.
"Tranche A Lender" means (a) initially, a Lender that has a
Tranche A Commitment set forth opposite its name on Schedule 2.01 and (b)
thereafter, the Lenders from time to time holding Tranche A Term Loans and
Tranche A Commitments, after giving effect to any assignments thereof permitted
by Section 10.04.
"Tranche A Maturity Date" means March 1, 2006.
"Tranche A Term Loan" means a Loan made pursuant to Section
2.01(b) that utilizes the Tranche A Commitment.
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"Tranche B Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Tranche B Term Loans on the Effective
Date, expressed as an amount representing the maximum aggregate principal amount
of the Tranche B Term Loans to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Sections 2.07 and
2.09 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 10.04. The initial amount of each Lender's
Tranche B Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Tranche B
Commitment, as applicable. The aggregate original amount of the Tranche B
Commitments is $200,000,000.
"Tranche B Lender" means (a) initially, a Lender that has a
Tranche B Commitment set forth opposite its name on Schedule 2.01 and (b)
thereafter, the Lenders from time to time holding Tranche B Term Loans and
Tranche B Commitments, after giving effect to any assignments thereof permitted
by Section 10.04.
"Tranche B Maturity Date" means August 1, 2006.
"Tranche B Term Loan" means a Loan made pursuant to Section
2.01(c) that utilizes the Tranche B Commitment.
"Transactions" means (a) with respect to the Borrower, the
execution, delivery and performance by the Borrower of the Loan Documents to
which it is a party, the borrowing of Loans and the use of the proceeds thereof,
and the issuance of Letters of Credit hereunder and (b) with respect to any
Credit Party (other than the Borrower), the execution, delivery and performance
by such Credit Party of the Loan Documents to which it is a party.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Adjusted Base Rate.
"Unrestricted Subsidiaries" means any Subsidiary of the
Borrower that (a) shall have been designated as an "Unrestricted Subsidiary" in
accordance with the provisions of Section 1.05 and (b) any Subsidiary of an
Unrestricted Subsidiary.
"U.S. dollars" or "$" refers to lawful money of the United
States of America.
"Wholly Owned Subsidiary" means, with respect to any Person at
any date, any corporation, limited liability company, partnership, association
or other entity of which securities or other ownership interests representing
100% of the equity or ordinary voting power (other than directors' qualifying
shares) or, in the case of a partnership, 100% of the general partnership
interests are, as of such date, directly or indirectly owned, controlled or held
by such Person or one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person. The term
"Wholly Owned Restricted Subsidiary" shall refer to any Restricted Subsidiary
that is also a Wholly Owned Subsidiary.
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"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Credit Loan", "Tranche A Term Loan", "Tranche B Term Loan"
or "Incremental Loan") or by Type (e.g., a "Base Rate Loan", or a "Eurodollar
Loan") or by Class and Type (e.g., a "Eurodollar Revolving Credit Loan" or a
"Base Rate Revolving Credit Loan"); each Series of Incremental Loans shall be
deemed a separate Class of Loans hereunder. In similar fashion, (i) Borrowings
may be classified and referred to by Class, by Type and by Class and Type, and
(ii) Commitments may be classified and referred to by Class; each Series of
Incremental Loan Borrowings and Incremental Loan Commitments shall be deemed a
separate Borrowing and Commitment hereunder.
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
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SECTION 1.05. SUBSIDIARIES; DESIGNATION OF UNRESTRICTED
SUBSIDIARIES. The Borrower may at any time designate any of its Subsidiaries
(including any newly acquired or newly formed Subsidiary) to be an "Unrestricted
Subsidiary" for purposes of this Agreement, by delivering to the Administrative
Agent a certificate of a Financial Officer (and the Administrative Agent shall
promptly forward a copy of such certificate to each Lender) attaching a copy of
a resolution of its Board of Directors (or authorized subcommittee thereof)
setting forth such designation and stating that the conditions set forth in this
Section 1.05 have been satisfied with respect to such designation, provided that
no such designation shall be effective unless (x) at the time of such
designation and after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing and (y) at the time of such designation
and at all times thereafter:
(a) except as permitted under Section 7.03, no portion of the
Indebtedness or any other obligation (contingent or otherwise) of such
Unrestricted Subsidiary (other than obligations in respect of
performance and surety bonds and in respect of reimbursement
obligations for undrawn letters of credit supporting insurance
arrangement and performance and surety bonds, each incurred in the
ordinary course of business and not as part of a financing transaction
(collectively, "Permitted Unrestricted Subsidiary Obligations")) (A) is
guaranteed by the Borrower or any Restricted Subsidiary or (B) is
recourse to or obligates the Borrower or any Restricted Subsidiary of
the Borrower, directly or indirectly, contingently or otherwise, to
satisfaction thereof,
(b) such Unrestricted Subsidiary has no Indebtedness or any
other obligation (other than Permitted Unrestricted Subsidiary
Obligations) that, if in default in any respect (including a payment
default), would permit (upon notice, lapse of time or both) any holder
of any other Indebtedness of the Borrower or its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated
maturity and
(c) such Subsidiary is an "Unrestricted Subsidiary" under the
Senior Subordinated Notes Indentures and New Senior Subordinated Notes
Indentures.
Notwithstanding the foregoing, the Borrower shall be entitled to designate any
Subsidiary as an Unrestricted Subsidiary hereunder even though such Subsidiary
shall, at the time of such designation, be obligated with respect to Guarantees
under the Senior Subordinated Notes Indenture or any New Senior Subordinated
Notes Indenture, provided that at the time of such designation, (i) the Borrower
is taking such action as is necessary to cause such Subsidiary to be released
from such Guarantees and (ii) such designation shall not become effective until
such time as such release shall be obtained.
Any designation of a Subsidiary as an Unrestricted Subsidiary
shall be deemed an Investment in an amount equal to the fair market value of
such Subsidiary (as determined in good faith by the board of directors of the
Borrower) and any such designation shall be permitted only if it complies with
the provisions of Section 7.05. Any designation of an Unrestricted Subsidiary as
a Restricted Subsidiary shall be deemed an Acquisition of such Unrestricted
Subsidiary and shall be permitted only to the extent permitted as an Acquisition
under Section 7.04(e). The Borrower shall give the Administrative Agent and each
Lender prompt notice of
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each resolution adopted by the Board of Directors (or authorized subcommittee
thereof) of the Borrower under this Section 1.05 designating any Subsidiary as
an Unrestricted Subsidiary (and notice of each designation of an Unrestricted
Subsidiary as a Restricted Subsidiary), together with a copy of each such
resolution adopted.
ARTICLE II
The Credits
SECTION 2.01. COMMITMENTS.
(a) Revolving Credit Loans. Subject to the terms and
conditions set forth herein, each Revolving Credit Lender agrees to make
Revolving Credit Loans to the Borrower from time to time during the Revolving
Credit Availability Period in an aggregate principal amount that will not result
in such Lender's Revolving Credit Loans exceeding such Lender's Revolving Credit
Commitment, provided that the total Revolving Credit Exposure shall not at any
time exceed the total Revolving Credit Commitments. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Credit Loans.
Proceeds of Revolving Credit Loans shall be available for any
use permitted under the applicable provisions of Section 6.09, provided that, in
the event that, as contemplated by Section 2.09(b)(ii), the Borrower shall
prepay Revolving Credit Loans from the proceeds of a Disposition hereunder, then
an amount of Revolving Credit Commitments, as specified by the Borrower pursuant
to the next sentence, equal to the amount of such prepayment (herein the
"Reserved Commitment Amount") shall be reserved and shall not be available for
borrowings hereunder except and to the extent that the proceeds of such
borrowings are to be applied to make Capital Expenditures or Acquisitions
permitted hereunder, or to make prepayments of Loans under Section
2.09(b)(ii)(z)(B). The Borrower agrees, upon the occasion of any Borrowing of
Revolving Credit Loans hereunder that is to constitute a utilization of any
Reserved Commitment Amount, to advise the Administrative Agent in writing of
such fact at the time of such Borrowing, identifying the amount of such
Borrowing that is to constitute such utilization, the Capital Expenditure or
Acquisition in respect of which the proceeds of such Borrowing are to be applied
and the reduced Reserved Commitment Amount to be in effect after giving effect
to such Borrowing.
(b) Tranche A Term Loans. Subject to the terms and conditions
set forth herein, each Tranche A Lender agrees to make Tranche A Term Loans to
the Borrower on the Effective Date in an aggregate principal amount up to but
not exceeding its Tranche A Commitment. Tranche A Term Loans that are prepaid
may not be reborrowed.
(c) Tranche B Term Loans. Subject to the terms and conditions
set forth herein, each Tranche B Lender agrees to make Tranche B Term Loans to
the Borrower on the Effective Date, in an aggregate principal amount up to but
not exceeding its Tranche B Commitment. Tranche B Term Loans that are prepaid
may not be reborrowed.
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(d) Incremental Loans. In addition to Borrowings of Revolving
Credit Loans and Term Loans pursuant to paragraphs (a), (b) and (c) above, at
any time and from time to time prior to the Incremental Loan Commitment
Termination Date, the Borrower may request that the Lenders offer to enter into
commitments to make additional term loans (each such loan being herein called an
"Incremental Loan") under this paragraph (d). In the event that one or more of
the Lenders offer, in their sole discretion, to enter into such commitments, and
such Lenders and the Borrower agree as to the amount of such commitments that
shall be allocated to the respective Lenders making such offers and the fees (if
any) to be payable by the Borrower in connection therewith, such Lenders shall
become obligated to make Incremental Loans under this Agreement in an amount
equal to the amount of their respective Incremental Loan Commitments. The
Incremental Loans to be made pursuant to any such agreement between the Borrower
and one or more Lenders in response to any such request by the Borrower shall be
deemed to be a separate "Series" of Incremental Loans for all purposes of this
Agreement. Anything herein to the contrary notwithstanding, (i) the minimum
aggregate principal amount of Incremental Loan Commitments entered into pursuant
to any such request (and, accordingly, the minimum aggregate principal amount of
any Series of Incremental Loans) shall be $10,000,000 and (ii) the aggregate
principal amount of all Incremental Loan Commitments and Incremental Loans shall
not exceed $400,000,000.
Following the acceptance by the Borrower of the offers made by
any one or more Lenders to make any Series of Incremental Loans pursuant to the
foregoing provisions of this paragraph (d), each Incremental Loan Lender in
respect of such Series of Incremental Loans severally agrees, on the terms and
conditions of this Agreement, to make such Incremental Loans to the Borrower in
Dollars during the period from and including the date of such acceptance to but
excluding the Incremental Loan Commitment Termination Date in an aggregate
principal amount up to but not exceeding the amount of the Incremental Loan
Commitment of such Incremental Loan Lender in respect of such Series as in
effect from time to time. Thereafter, subject to the terms and conditions of
this Agreement, the Borrower may convert Incremental Loans of such Series of one
Type into Incremental Loans of such Series of another Type (as provided in
Section 2.06) or continue Incremental Loans of such Series of one Type as
Incremental Loans of such Series of the same Type (as provided in Section 2.06).
Incremental Loans of any Series that are prepaid may not be reborrowed as
Incremental Loans of the same Series.
Proceeds of Incremental Loans shall be available for any use
permitted under the applicable provisions of Section 6.09.
SECTION 2.02. LOANS AND BORROWINGS.
(a) Obligations Several. Each Loan of a particular Class (and,
in the case of Incremental Loans, of a particular Series) shall be made as part
of a Borrowing consisting of Loans of such Class (and, if applicable, of such
Series) made by the Lenders ratably in accordance with their respective
Commitments of such Class (and, if applicable, of such Series). The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
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(b) Type of Loans. Subject to Section 2.12, each Borrowing
shall be comprised entirely of Base Rate Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) Minimum Amounts. At the commencement of each Interest
Period for a Eurodollar Borrowing, such Borrowing shall be in an aggregate
amount at least equal to $2,000,000 or any greater multiple of $1,000,000. At
the time that each Base Rate Borrowing is made, such Borrowing shall be in an
aggregate amount that is at least equal to $500,000 or any greater multiple of
$500,000; provided that (i) a Base Rate Borrowing of Loans of any Class may be
in an aggregate amount that is equal to the entire unused balance of the total
Commitments of such Class (or, in the case of an Incremental Loan Commitment of
any Series, in an aggregate amount that is equal to the entire unused balance of
the total Commitments of such Series) and (ii) a Revolving Credit Base Rate
Borrowing may be in an amount that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.04(e). Borrowings of more than
one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of ten Eurodollar Borrowings
outstanding.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of the proposed Borrowing or (b)
in the case of a Base Rate Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of the proposed Borrowing; provided that
any such notice of a Revolving Credit Base Rate Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.04(e) may be
given not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Credit Borrowing, a Tranche A Borrowing, a Tranche B Borrowing, or an
Incremental Loan Borrowing (including, if applicable, the respective
Series of Incremental Loans to which such Borrowing relates);
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be a Base Rate Borrowing or
a Eurodollar Borrowing;
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(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be a Base Rate Borrowing. If no Interest Period is specified
with respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section 2.03,
the Administrative Agent shall advise each Lender of the details thereof and of
the amount of such Lender's Loan to be made as part of the requested Borrowing.
Anything herein to the contrary notwithstanding, the initial
Borrowing hereunder shall be a Base Rate Borrowing.
SECTION 2.04. LETTERS OF CREDIT.
(a) General. Subject to the terms and conditions set forth
herein, in addition to the Revolving Credit Loans provided for in Section
2.01(a), the Borrower may request the issuance of Letters of Credit for its own
account by the Issuing Lender, in a form reasonably acceptable to the Issuing
Lender, at any time and from time to time during the Revolving Credit
Availability Period. Letters of Credit issued hereunder shall constitute
utilization of the Revolving Credit Commitments. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Lender relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Lender) to the
Issuing Lender and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, the date of issuance, amendment, renewal or
extension, the date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) of this Section 2.04), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Lender, the Borrower also shall submit a
letter of credit application on the Issuing Lender's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the aggregate LC Exposure of the Issuing Lender (determined for
these purposes without giving effect to the
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participations therein of the Revolving Credit Lenders pursuant to paragraph (d)
of this Section 2.04) shall not exceed $50,000,000 and (ii) the total Revolving
Credit Exposure shall not exceed the total Revolving Credit Commitments.
(c) Expiration Date. Each Letter of Credit shall expire
(without giving effect to any extension thereof by reason of an interruption of
business) at or prior to the close of business on the earlier of (i) the date
two years after the date of the issuance of such Letter of Credit (or, in the
case of any renewal or extension thereof, two years after such renewal or
extension) and (ii) the date that is five Business Days prior to the Revolving
Credit Termination Date, provided that any such Letter of Credit may provide for
automatic extensions thereof to a date not later than one year beyond the
current expiration date, so long as such extended expiration date is not later
than the date five Business Days prior to the Revolving Credit Termination Date.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) by the Issuing
Lender, and without any further action on the part of the Issuing Lender, the
Issuing Lender hereby grants to each Revolving Credit Lender, and each Revolving
Lender hereby acquires from the Issuing Lender, a participation in such Letter
of Credit equal to such Revolving Credit Lender's Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Credit Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for the account of the Issuing Lender, such Revolving Credit Lender's Applicable
Percentage of each LC Disbursement made by the Issuing Lender and not reimbursed
by the Borrower on the date due as provided in paragraph (e) of this Section
2.04, or of any reimbursement payment required to be refunded to the Borrower
for any reason. Each Revolving Credit Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the
Issuing Lender in respect of such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on (i) the Business Day that the Borrower
receives notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., New York City time, or (ii) the Business Day immediately following
the day that the Borrower receives such notice, if such notice is not received
prior to such time, provided that, if such LC Disbursement is not less than
$500,000, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 that such payment be financed
with a Revolving Credit Base Rate Borrowing in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting Revolving Credit Base Rate Borrowing.
If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Credit Lender of the applicable
LC Disbursement, the payment then
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due from the Borrower in respect thereof and such Revolving Credit Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Revolving Credit Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.05 with respect to Revolving Credit Loans made by such
Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Credit Lenders), and the Administrative Agent shall
promptly pay to the Issuing Lender the amounts so received by it from the
Revolving Credit Lenders. Promptly following receipt by the Administrative Agent
of any payment from the Borrower pursuant to this paragraph, the Administrative
Agent shall distribute such payment to the Issuing Lender or, to the extent that
the Revolving Credit Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Lender, then to such Lenders and the Issuing Lender as
their interests may appear. Any payment made by a Revolving Credit Lender
pursuant to this paragraph to reimburse the Issuing Lender for any LC
Disbursement shall not constitute a Loan and shall not relieve the Borrower of
its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section 2.04
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Lender under a
Letter of Credit against presentation of a draft or other document that does not
comply strictly with the terms of such Letter of Credit and (iv) any other event
or circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section 2.04, constitute a legal or
equitable discharge of the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing
Lender, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit by the Issuing Lender or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Lender;
provided that the foregoing shall not be construed to excuse the Issuing Lender
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Lender's gross negligence or willful misconduct
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that:
(i) the Issuing Lender may accept documents that appear on
their face to be in substantial compliance with the terms of a Letter
of Credit without responsibility for
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further investigation, regardless of any notice or information to the
contrary, and may make payment upon presentation of documents that
appear on their face to be in substantial compliance with the terms of
such Letter of Credit;
(ii) the Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the terms
of such Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lender when determining whether drafts and
other documents presented under a Letter of Credit comply with the
terms thereof (and the parties hereto hereby waive, to the extent
permitted by applicable law, any standard of care inconsistent with the
foregoing).
(g) Disbursement Procedures. The Issuing Lender shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under any Letter of Credit. The Issuing Lender
shall promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing
Lender has made or will make an LC Disbursement thereunder; provided that any
failure to give or delay in giving such notice shall not relieve the Borrower of
its obligation to reimburse the Issuing Lender and the Revolving Credit Lenders
with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Lender shall make any LC
Disbursement in respect of any Letter of Credit, then, unless the Borrower shall
reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including
the date such LC Disbursement is made to but excluding the date that the
Borrower reimburses such LC Disbursement, at the rate per annum then applicable
to Revolving Credit Base Rate Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section 2.04, then Section 2.11(c) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Lender, except that
interest accrued on and after the date of payment by any Revolving Credit Lender
pursuant to paragraph (e) of this Section 2.04 to reimburse the Issuing Lender
shall be for the account of such Lender to the extent of such payment.
(i) Cash Collateralization. If either (i) an Event of Default
shall occur and be continuing and the Borrower receives notice from the
Administrative Agent or the Required Revolving Credit Lenders demanding the
deposit of cash collateral pursuant to this paragraph, or (ii) the Borrower
shall be required to provide cover for LC Exposure pursuant to Section 2.08 or
2.09(b), the Borrower shall immediately deposit into the Collateral Account
under and as defined in the Pledge Agreement an amount in cash equal to, in the
case of an Event of Default, the LC Exposure as of such date plus any accrued
and unpaid interest thereon and, in the case of cover pursuant to Section 2.08
or 2.09(b), the amount required under Section 2.08 or 2.09(b), as the case may
be; provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to any Credit Party described in clause (g) or (h)
of Article VIII. Such deposit shall be held by the
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Administrative Agent as collateral in the first instance for the LC Exposure
under this Agreement and thereafter for the payment of any other obligations of
the Obligors hereunder.
(j) Existing Letters of Credit. There is outstanding on the
date hereof pursuant to the Existing Credit Agreement one or more letters of
credit issued by Chase (as the "Issuing Lender" thereunder) for the account of
the Borrower. Upon the Effective Date each of such letters of credit is hereby
designated a "Letter of Credit" under and for all purposes of this Agreement. In
that connection, the Borrower hereby represents and warrants to the Issuing
Lender, each Revolving Credit Lender and the Administrative Agent that each such
letter of credit satisfies the requirements of this Section 2.04 (including
paragraph (c) above).
SECTION 2.05. FUNDING OF BORROWINGS.
(a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds by 12:00 noon, New York City time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders.
The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and
designated by the Borrower in the applicable Borrowing Request; provided that
Revolving Credit Base Rate Loans made to finance the reimbursement of an LC
Disbursement under any Letter of Credit as provided in Section 2.04(e) shall be
remitted by the Administrative Agent to the Issuing Lender.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
2.05 and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
the Federal Funds Effective Rate. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section 2.06. The
Borrower may elect different options for continuations and conversions with
respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated
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ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section 2.06, the
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies (including, if applicable, the respective Series of Incremental
Loans to which such Interest Election Request relates) and, if
different options for continuations or conversions are being elected
with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be a Base Rate
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each affected Lender of the
details thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to a Base Rate Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Borrowing may be converted to or continued as a Eurodollar
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Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted
to a Base Rate Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.07. TERMINATION AND REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, (i) the Revolving Credit
Commitments shall terminate at the close of business on the Revolving Credit
Termination Date, (ii) the Tranche A Commitment and the Tranche B Commitment
shall terminate on the Effective Date and (iii) the Incremental Loan Commitments
shall terminate on the Incremental Loan Commitment Termination Date.
(b) The aggregate amount of the Revolving Credit Commitments
shall be automatically reduced at the close of business on each Revolving Credit
Commitment Reduction Date set forth in column (A) below to the amount set forth
in column (B) below opposite such Revolving Credit Commitment Reduction Date:
(A) (B)
Revolving Credit Revolving Credit
Commitment Reduction Commitment Reduced
Date Falling on or to the Following
Nearest to: Amounts
-------------------- ------------------
March 31, 2002 $341,250,000
June 30, 2002 $332,500,000
September 30, 2002 $323,750,000
December 31, 2002 $315,000,000
March 31, 2003 $306,250,000
June 30, 2003 $297,500,000
September 30, 2003 $288,750,000
December 31, 2003 $280,000,000
March 31, 2004 $253,750,000
June 30, 2004 $227,500,000
September 30, 2004 $201,250,000
December 31, 2004 $175,000,000
March 31, 2005 $144,375,000
June 30, 2005 $113,750,000
September 30, 2005 $ 83,125,000
December 31, 2005 $ 52,500,000
March 1, 2006 $0
(c) The Borrower may at any time terminate, or from time to
time reduce, the Commitments of any Class (including the Commitments of any
Series of Incremental Loans); provided that (i) each reduction of the
Commitments of such Class shall be in an amount that is
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at least equal to $3,000,000 or any greater multiple of $1,000,000, (ii) the
Borrower shall not terminate or reduce the Commitments of such Class if, after
giving effect to any concurrent prepayment of Loans in accordance with Section
2.09, the outstanding Loans of such Class would exceed the total Commitments of
such Class and (iii) the Borrower shall not terminate or reduce the Revolving
Credit Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.09, the total Revolving Credit Exposures
would exceed the total Revolving Credit Commitments.
(d) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce Commitments under paragraph (c) of this Section
2.07 at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section 2.07 shall be irrevocable; provided that a
notice of termination of Commitments delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of Commitments shall be
permanent. Each reduction of Commitments of any Class shall be made ratably
among the Lenders in accordance with their respective Commitments of such Class.
SECTION 2.08. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Revolving Credit Lender the then
unpaid principal amount of such Lender's Revolving Credit Loans on the Revolving
Credit Termination Date. In addition, if following any Revolving Credit
Commitment Reduction Date the aggregate principal amount of the Revolving Credit
Exposure shall exceed the Revolving Credit Commitments, the Borrower shall pay
Revolving Credit Loans (and/or provide cover for LC Exposure as specified in
Section 2.04(i)) in an aggregate amount equal to such excess.
(b) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Tranche A Lenders the outstanding
principal amount of the Tranche A Term Loans on each Principal Payment Date set
forth below in the aggregate principal amount set forth opposite such Principal
Payment Date:
Principal Payment Date Principal Amount
---------------------- ----------------
September 30, 2001 $22,500,000
December 31, 2001 $22,500,000
March 31, 2002 $11,250,000
June 30, 2002 $11,250,000
September 30, 2002 $11,250,000
December 31, 2002 $11,250,000
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March 31, 2003 $22,500,000
June 30, 2003 $22,500,000
September 30, 2003 $22,500,000
December 31, 2003 $22,500,000
March 31, 2004 $28,125,000
June 30, 2004 $28,125,000
September 30, 2004 $28,125,000
December 31, 2004 $28,125,000
March 31, 2005 $31,500,000
June 30, 2005 $31,500,000
September 30, 2005 $31,500,000
December 31, 2005 $31,500,000
March 1, 2006 $31,500,000
If the initial aggregate amount of the Tranche A Commitments exceeds the
aggregate principal amount of Tranche A Term Loans that are outstanding on the
Effective Date, then the scheduled repayments of Borrowings to be made pursuant
to this Section shall be reduced ratably by an aggregate amount equal to such
excess. To the extent not previously paid, all Tranche A Term Loans shall be due
and payable on the Tranche A Maturity Date.
(c) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Tranche B Lenders the outstanding
principal amount of the Tranche B Term Loans on each Principal Payment Date set
forth below in the aggregate principal amount set forth opposite such Principal
Payment Date:
Principal Payment Date Principal Amount
---------------------- ----------------
September 30, 2001 $500,000
December 31, 2001 $500,000
March 31, 2002 $500,000
June 30, 2002 $500,000
September 30, 2002 $500,000
December 31, 2002 $500,000
March 31, 2003 $500,000
June 30, 2003 $500,000
September 30, 2003 $500,000
December 31, 2003 $500,000
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March 31, 2004 $500,000
June 30, 2004 $500,000
September 30, 2004 $500,000
December 31, 2004 $500,000
March 31, 2005 $500,000
June 30, 2005 $500,000
September 30, 2005 $500,000
December 31, 2005 $500,000
March 31, 2006 $500,000
June 30, 2006 $500,000
August 1, 2006 $190,000,000
If the initial aggregate amount of the Tranche B Commitments exceeds the
aggregate principal amount of Tranche B Term Loans that are outstanding on the
Effective Date, then the scheduled repayments of Borrowings to be made pursuant
to this Section shall be reduced ratably by an aggregate amount equal to such
excess. To the extent not previously paid, all Tranche B Term Loans shall be due
and payable on the Tranche B Maturity Date.
(d) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Incremental Loan Lenders of any
Series the principal of the Incremental Loans of such Series in consecutive
quarterly installments on such dates and in such amounts as shall be agreed upon
between the Borrower and such Lenders at the time the Incremental Loan
Commitments of such Series are established, provided that in no event shall the
average life to maturity (determined in accordance with GAAP) of the Incremental
Loans of any Series be earlier than the average life to maturity (so determined)
of the Tranche A Loans.
(e) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(f) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof (and, in the case of Incremental Loans, the respective Series thereof)
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(g) The entries made in the accounts maintained pursuant to
paragraph (e) or (f) of this Section 2.08 shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
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(h) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.09. PREPAYMENT OF LOANS.
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part,
subject to prior notice in accordance with paragraph (d) of this Section 2.09.
Each prepayment of Term Loans or Incremental Loans shall be applied to the Term
Loans and Incremental Loans ratably in accordance with the respective
outstanding principal amounts of such Term Loans and Incremental Loans (and, in
the case of Incremental Loans, to all Series thereof ratably in accordance with
the respective outstanding principal amounts of such Series), and to the
installments thereof due on the two Quarterly Dates immediately following the
date of such prepayment, in direct order of maturity, and, thereafter, pro rata
in accordance with the respective aggregate principal amounts of the Term Loans
and Incremental Loans outstanding on the date of such prepayment.
(b) Mandatory Prepayments. The Borrower shall make prepayments
of the Loans hereunder as follows:
(i) Casualty Events. Upon the date 270 days following the
receipt by the Borrower or any of its Subsidiaries of the proceeds of
insurance, condemnation award or other compensation in respect of any
Casualty Event affecting any property of the Borrower or any of its
Restricted Subsidiaries (or upon such earlier date as the Borrower or
such Restricted Subsidiary, as the case may be, shall have determined
not to repair or replace the property affected by such Casualty Event),
the Borrower shall prepay the Loans (and/or provide cover for LC
Exposure as specified in Section 2.04(i)) in an aggregate amount, if
any, equal to 100% of the Net Available Proceeds of such Casualty Event
not theretofore applied or committed to be applied to the repair or
replacement of such property (it being understood that if Net Available
Proceeds committed to be applied are not in fact applied within twelve
months of the respective Casualty Event, then such Proceeds shall be
applied to the prepayment of Loans and cover for LC Exposure as
provided in this clause (i) at the expiration of such twelve-month
period), such prepayment and reduction to be effected in each case in
the manner and to the extent specified in clause (iv) of this Section
2.09(b).
(ii) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Required Lenders to any
Disposition not otherwise permitted hereunder, the Borrower agrees, on
or prior to the occurrence of any Disposition, to deliver to the
Administrative Agent a statement certified by a Financial Officer, in
form and detail
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reasonably satisfactory to the Administrative Agent, of the estimated
amount of the Net Cash Payments of such Disposition that will (on the
date of such Disposition) be received by the Borrower or any of its
Subsidiaries in cash and, unless the Borrower shall elect to reinvest
such Net Cash Payments as provided below, the Borrower will prepay the
Loans hereunder (and provide cover for LC Exposure as specified in
Section 2.04(i)) as follows:
(w) upon the date of such Disposition, in an
aggregate amount equal to 100% of such estimated amount of the
Net Cash Payments of such Disposition, to the extent received
by the Borrower or any of its Subsidiaries in cash on the date
of such Disposition; and
(x) thereafter, quarterly, on the date of the
delivery by the Borrower to the Administrative Agent pursuant
to Section 6.01 of the financial statements for any quarterly
fiscal period or fiscal year, to the extent the Borrower or
any of its Subsidiaries shall receive Net Cash Payments during
the quarterly fiscal period ending on the date of such
financial statements in cash under deferred payment
arrangements or Disposition Investments entered into or
received in connection with any Disposition, an amount equal
to (A) 100% of the aggregate amount of such Net Cash Payments
minus (B) any transaction expenses associated with
Dispositions and not previously deducted in the determination
of Net Cash Payments plus (or minus, as the case may be) (C)
any other adjustment received or paid by the Borrower or any
of its Subsidiaries pursuant to the respective agreements
giving rise to Dispositions and not previously taken into
account in the determination of the Net Cash Payments of
Dispositions, provided that if prior to the date upon which
the Borrower would otherwise be required to make a prepayment
under this clause (x) with respect to any quarterly fiscal
period the aggregate amount of such Net Cash Payments (after
giving effect to the adjustments provided for in this clause
(x)) shall exceed $5,000,000, then the Borrower shall within
three Business Days make a prepayment under this clause (x) in
an amount equal to such required prepayment.
Prepayments of Loans (and cover for LC Exposure) shall be effected in
each case in the manner and to the extent specified in clause (iv) of
this Section 2.09(b).
Notwithstanding the foregoing, the Borrower shall not be
required to make a prepayment (or provide cover) pursuant to this
Section 2.09(b)(ii) with respect to the Net Cash Payments from any
Disposition in the event that the Borrower advises the Administrative
Agent at the time a prepayment is required to be made under the
foregoing clauses (w) or (x) that it intends to reinvest such Net Cash
Payments into assets reasonably related to the outdoor advertising,
out-of-home media and logo signage business pursuant to one or more
Capital Expenditures or Acquisitions permitted hereunder, so long as:
(y) such Net Cash Payments are either (A) placed by
the Borrower into a segregated deposit account pending such
reinvestment or (B) applied by the Borrower to the prepayment
of Revolving Credit Loans hereunder (in which event the
Borrower agrees to advise the Administrative Agent in writing
at the time of
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such prepayment of Revolving Credit Loans that such
prepayment is being made from the proceeds of a Disposition
and that, as contemplated by the second paragraph of Section
2.01(a), a portion of the Revolving Credit Commitments equal
to the amount of such prepayment gives rise to a Reserved
Commitment Amount that shall be available hereunder only for
purposes of making Capital Expenditures or Acquisitions
permitted hereunder or to make prepayments of Loans under
clause (z)(B) below), and
(z) the Net Cash Payments from any Disposition are in
fact so reinvested within 180 days of such Disposition (it
being understood that, in the event Net Cash Payments from
more than one Disposition are deposited into a segregated
deposit account or applied to the prepayment of Revolving
Credit Loans as provided in clause (y) above, such Net Cash
Payments shall be deemed to be applied (or, as the case may
be, Revolving Credit Loans utilizing the Reserved Commitment
Amount shall be deemed to be made) in the same order in which
such Dispositions occurred and, accordingly, (A) any such Net
Cash Payments so held for more than 180 days shall be
forthwith applied to the prepayment of Loans (and cover for LC
Exposure) as provided in clause (iv) of this Section 2.09(b)
and (B) any Reserved Commitment Amount that remains so
unutilized for 180 days shall be utilized through the
borrowing by the Borrower of Revolving Credit Loans the
proceeds of which shall be applied to the prepayment of Loans
(and cover for LC Exposure) as provided in clause (iv) of this
Section 2.09(b)).
In the event that any Reserved Commitment Amount with respect
to any Disposition shall remain unutilized for 180 days and the
Borrower shall for any reason not borrow Revolving Credit Loans the
proceeds of which are applied to the prepayment of Loans (and cover for
LC Exposure) as provided above in this clause (ii), the Revolving
Credit Lenders agree (which agreement shall be absolute and
unconditional, regardless of whether or not the conditions to a
borrowing of Revolving Credit Loans hereunder shall have been satisfied
and regardless of the occurrence or continuance of any Event of
Default, including any Event of Default described in paragraphs (g) or
(h) of Article VIII) to purchase participations in the Loans of the
Term Loan Lenders and Incremental Loan Lenders in amounts equivalent to
the amount of the respective prepayments that each of such Lenders
would have received had such borrowing of Revolving Credit Loans
occurred as provided above.
Anything herein to the contrary notwithstanding, the Borrower
shall not be required to make any prepayment pursuant to this clause
(ii) with respect to the first $10,000,000 of Net Cash Payments.
(iii) Change of Control. Upon the occurrence of any "Change of
Control" under and as defined in the Senior Subordinated Notes
Indenture or New Senior Subordinated Notes Indenture (or any similar
provision in the applicable governing agreement for any Refunding
Indebtedness), the Borrower shall prepay the Loans hereunder (and
provide cover for LC Exposure as specified in Section 2.04(i)), and the
Commitments hereunder shall be automatically terminated.
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(iv) Application. Upon the occurrence of any of the events
described in the above paragraphs of this Section 2.09(b), the amount
of the required prepayment shall be applied first, to the prepayment of
the Term Loans and Incremental Loans, in each case ratably in
accordance with the respective then-outstanding aggregate amounts of
such Loans, and second, after the prepayment in full of the Term Loans
and Incremental Loans, to the repayment of the Revolving Credit Loans,
without reduction of Revolving Credit Commitments. Each such prepayment
of the Term Loans and Incremental Loans shall be applied ratably to the
installments thereof.
Notwithstanding the foregoing, to the extent that at the time of any prepayment
described above there are Tranche A Term Loans outstanding, any Tranche B Term
Lender may, by notice to the Borrower and the Administrative Agent, decline all
or any portion (in a minimum amount at least equal to $1,000,000) of the
prepayment to which it would otherwise be entitled, provided that the portion of
such prepayment so declined by any such Tranche B Term Lender shall be applied
to the prepayment of the Tranche A Term Loans.
(c) Mandatory Prepayments -- Outstandings Exceeding
Commitments. The Borrower shall prepay the Revolving Credit Loans (and/or
provide cover for the LC Exposure as specified in Section 2.04(i)) in the event
that the aggregate amount of the Revolving Credit Exposure shall at any time
exceed the aggregate amount of the Revolving Commitments.
(d) Notification of Prepayments. The Borrower shall notify the
Administrative Agent by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of
prepayment or (ii) in the case of prepayment of a Base Rate Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of Commitments as contemplated by Section
2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such notice relating to a Borrowing of a particular Class, the
Administrative Agent shall advise the Lenders holding Loans of such Class of the
contents thereof. Each partial prepayment of any Borrowing under paragraph (a)
of this Section 2.09 shall be in an amount that would be permitted in the case
of an advance of a Borrowing of the same Type as provided in Section 2.02.
(e) Prepayments Accompanied by Interest. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.11.
SECTION 2.10. FEES.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at a rate per
annum equal to 0.375% on the daily average unused amount of the Revolving Credit
Commitments and Term Loan Commitments of such Lender during the period from and
including the date hereof to but excluding the date on which such Revolving
Credit Commitment or Term Loan Commitment
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terminates. Accrued commitment fees shall be payable in arrears on each
Quarterly Date and, in respect of any Revolving Credit Commitments or Term Loan
Commitments, on the date such Revolving Credit Commitments or Term Loan
Commitments terminate, commencing on the first such date to occur after the date
hereof. All commitment fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) The Borrower agrees to pay with respect to Letters of
Credit outstanding hereunder the following fees:
(i) to the Administrative Agent for the account of each
Revolving Credit Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate per
annum equal to the Applicable Margin used in determining interest on
Revolving Credit Eurodollar Loans on the average daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such
Lender's Revolving Credit Commitment terminates and the date on which
there shall no longer be any Letters of Credit outstanding hereunder,
and
(ii) to the Issuing Lender (x) a fronting fee, which shall
accrue at the rate of 3/16 of 1% per annum on the average daily amount
of the LC Exposure of the Issuing Lender (determined for these purposes
without giving effect to the participations therein of the Revolving
Credit Lenders pursuant to paragraph (d) of Section 2.04, and excluding
any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but
excluding the later of the date of termination of the Revolving Credit
Commitments and the date on which there shall no longer be any Letters
of Credit of the Issuing Lender outstanding hereunder, and (y) the
Issuing Lender's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder.
Accrued participation fees and fronting fees shall be payable in arrears on each
Quarterly Date and on the date the Revolving Credit Commitments terminate,
commencing on the first such date to occur after the date hereof, provided that
any such fees accruing after the date on which the Revolving Credit Commitments
terminate shall be payable on demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed in writing between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution to
the Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances, absent manifest error in the determination thereof.
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SECTION 2.11. INTEREST.
(a) The Loans comprising each Base Rate Borrowing shall bear
interest at a rate per annum equal to the Adjusted Base Rate plus the Applicable
Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, (i) except as otherwise
provided in clause (ii) below, during the period when any Default shall have
occurred and be continuing for a period of 90 or more days (and the
Administrative Agent, acting on the instructions of the Required Lenders, shall
have notified the Borrower that the provisions of this clause (i) shall apply),
the principal of all Loans hereunder shall bear interest, after as well as
before judgment, at a rate per annum equal to the Adjusted Base Rate plus the
Applicable Margin for Base Rate Loans plus 2% and (ii) if any principal on any
Loan payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such principal shall bear interest,
after as well as before judgment, at a rate per annum equal to the Adjusted Base
Rate plus the Applicable Margin for Base Rate Loans plus 2%.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (c) of this Section 2.11 shall be payable on demand, (ii)
in the event of any repayment or prepayment of any Eurodollar Loan (or the
repayment or prepayment in full of the Term Loans or Incremental Loans), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion, (iv) all accrued interest on Revolving Credit Loans shall be payable
upon termination of the Revolving Credit Commitments.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Adjusted
Base Rate at times when the Adjusted Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Adjusted Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.12. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
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(b) if such Borrowing is of a particular Class of Loans
(including of a particular Series of Incremental Loans), the
Administrative Agent is advised by the Required Revolving Credit
Lenders, the Required Tranche A Lenders, the Required Tranche B Lenders
or the Required Incremental Loan Lenders of such Series, as the case
may be, that the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period will not adequately and fairly reflect the
cost to such Lenders of making or maintaining their Loans of such Class
included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
affected Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and such Lenders that
the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any such Borrowing to, or
continuation of any such Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.13. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Lender; or
(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Lender reasonably determines
that any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's or the Issuing Lender's
capital or on the capital of such Lender's or the Issuing Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued the Issuing Lender, to a level below that which such Lender or the
Issuing Lender or such Lender's or the Issuing Lender's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Lender's policies and the policies of such Lender's or
the Issuing Lender's holding company with respect to capital adequacy), then
from time to time
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the Borrower will pay to such Lender or the Issuing Lender, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing
Lender, or such Lender's or the Issuing Lender's holding company, for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Lender setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Lender or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section 2.13 shall be delivered to the Borrower and shall be
conclusive so long as it reflects a reasonable basis for the calculation of the
amounts set forth therein and does not contain any manifest error. The Borrower
shall pay such Lender or the Issuing Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Lender to demand compensation pursuant to this Section 2.13 shall not constitute
a waiver of such Lender's or the Issuing Lender's right to demand such
compensation; provided that the Borrower shall not be required to compensate a
Lender or the Issuing Lender pursuant to this Section 2.13 for any increased
costs or reductions incurred more than six months prior to the date that such
Lender or the Issuing Lender, as the case may be, notifies the Borrower of the
Change in Law giving rise to such increased costs or reductions and of such
Lender's or the Issuing Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof.
SECTION 2.14. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
and is revoked in accordance herewith) or (d) the assignment of any Eurodollar
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.17, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event.
In the case of a Eurodollar Loan, the loss to any Lender
attributable to any such event shall be deemed to include an amount determined
by such Lender to be equal to the excess, if any, of
(i) the amount of interest that such Lender would pay for a
deposit equal to the principal amount of such Loan for the period from
the date of such payment, conversion, failure or assignment to the last
day of the then current Interest Period for such Loan (or, in the case
of a failure to borrow, convert or continue, the duration of the
Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such Interest Period,
over
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(ii) the amount of interest that such Lender would earn on
such principal amount for such period if such Lender were to invest
such principal amount for such period at the interest rate that would
be bid by such Lender (or an affiliate of such Lender) for U.S. dollar
deposits from other banks in the eurodollar market at the commencement
of such period.
A certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section 2.14 shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.15. TAXES
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.15) the Administrative Agent, Lender or the Issuing Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Lender, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.15) paid by the Administrative Agent, such
Lender or the Issuing Lender, as the case may be (and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto during the
period prior to the Borrower making the payment demanded under this paragraph
(c)), whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Lender, or by the Administrative Agent on
its own behalf or on behalf of a Lender or the Issuing Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver
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to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.16. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SET-OFFS.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or under Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00
noon, New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
such of its offices in New York City as shall be notified to the relevant
parties from time to time, except payments to be made directly to the Issuing
Lender as expressly provided herein and except that payments pursuant to
Sections 2.13, 2.14, 2.15 and 10.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof, and the Borrower shall have no liability in
the event timely or correct distribution of such payments is not so made. If any
payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in U.S. dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, to pay interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, to pay principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) Except to the extent otherwise provided herein: (i) each
borrowing of Loans of a particular Class (including of a particular Series of
Incremental Loans) from the Lenders under Section 2.01 shall be made from the
relevant Lenders, each payment of commitment fee under Section 2.10 in respect
of Commitments of a particular Class (including of a particular Series of
Incremental Loans) shall be made for account of the relevant Lenders, and each
termination or reduction of the amount of the Commitments of a particular Class
(including of a particular Series of Incremental Loans) under Section 2.07 shall
be applied to the respective Commitments of such Class of the relevant Lenders,
pro rata according to the amounts of their respective Commitments of such Class;
(ii) Eurodollar Loans of any Class (including of a particular Series of
Incremental Loans) having the same Interest Period shall be allocated pro rata
among the relevant Lenders according to the amounts of their Commitments of such
Class (in the case of the making of Loans) or their respective Loans of such
Class (in the case of
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conversions and continuations of Loans); (iii) each payment or prepayment by the
Borrower of principal of Loans of a particular Class (including of a particular
Series of Incremental Loans) shall be made for account of the relevant Lenders
pro rata in accordance with the respective unpaid principal amounts of the Loans
of such Class held by them; (iv) each payment by the Borrower of interest on
Loans of a particular Class (including of a particular Series of Incremental
Loans) shall be made for account of the relevant Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders; and (v) each payment by the Borrower of participation fees
in respect of Letters of Credit shall be made for the account of the Revolving
Credit Lenders pro rata in accordance with the amount of participation fees then
due and payable to the Revolving Credit Lenders.
(d) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans (or participations in LC Disbursements) of any
Class resulting in such Lender receiving payment of a greater proportion of the
aggregate principal amount of its Loans (and participations in LC Disbursements)
of such Class and accrued interest thereon than the proportion of such amounts
received by any other Lender of any other Class, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans (and LC Disbursements) of the other Lenders to the extent necessary so
that the benefit of such payments shall be shared by all the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans (and participations in LC Disbursements); provided that
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, unless the Lender from which such payment is received is required to
pay interest thereon, in which case each Lender returning funds to such Lender
shall pay its pro rata share of such interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans (or participations in LC Disbursements) to any assignee or participant,
other than to any Credit Party or any subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Lender
entitled thereto (the "Applicable Recipient") hereunder that the Borrower will
not make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Applicable Recipient the amount due. In such
event, if the Borrower has not in fact made such payment, then each Applicable
Recipient severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Applicable Recipient with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
Federal Funds Effective Rate.
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(f) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(d), 2.04(e), 2.05(b) or 2.16(e), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Section until all such unsatisfied obligations are fully paid.
SECTION 2.17. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations, hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.13 or 2.15, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Credit Commitment is being assigned, the Issuing Lender), which
consents shall not unreasonably be withheld or delayed, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans (and participations in LC Disbursements), accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.13 or
payments required to be made pursuant to Section 2.15, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
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ARTICLE III
Guarantee by Subsidiary Guarantors
SECTION 3.01. THE GUARANTEE. Each Subsidiary Guarantor hereby
jointly and severally guarantees to each Lender, the Issuing Lender and the
Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by the Lenders to
the Borrower, all LC Disbursements and all other amounts from time to time owing
to the Lenders, the Issuing Lender or the Administrative Agent by the Borrower
hereunder or under any other Loan Document, and all obligations of the Borrower
to any Lender under any Hedging Agreement, in each case strictly in accordance
with the terms thereof (such obligations being herein collectively called the
"Guaranteed Obligations"). Each Subsidiary Guarantor hereby further agrees that
if the Borrower shall fail to pay in full when due (whether at stated maturity,
by acceleration or otherwise) any of the Guaranteed Obligations, each Subsidiary
Guarantor will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
SECTION 3.02. OBLIGATIONS UNCONDITIONAL. The obligations of
each Subsidiary Guarantor under Section 3.01 are absolute and unconditional
irrespective of the value, genuineness, validity, regularity or enforceability
of this Agreement, the other Loan Documents or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any of the Guaranteed Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 3.02 that the obligations of the Subsidiary Guarantors hereunder shall
be absolute and unconditional under any and all circumstances. Without limiting
the generality of the foregoing, it is agreed that the occurrence of any one or
more of the following shall not alter or impair the liability of the Subsidiary
Guarantors hereunder which shall remain absolute and unconditional as described
above:
(i) at any time or from time to time, without notice to such
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions hereof
or of the other Loan Documents or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right hereunder or under
the other Loan Documents or any other agreement or instrument referred
to herein or therein shall be waived or any other guarantee of any of
the Guaranteed Obligations or any security therefor shall be released
or exchanged in whole or in part or otherwise dealt with; or
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(iv) any lien or security interest granted to, or in favor of,
the Administrative Agent, the Issuing Lender or any Lender or Lenders
as security for any of the Guaranteed Obligations shall fail to be
perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent, the Issuing Lender or any Lender exhaust any right, power
or remedy or proceed against the Borrower hereunder or under the other Loan
Documents or any other agreement or instrument referred to herein or therein, or
against any other Person under any other guarantee of, or security for, any of
the Guaranteed Obligations.
SECTION 3.03. REINSTATEMENT. The obligations of each
Subsidiary Guarantor under this Article III shall be automatically reinstated if
and to the extent that for any reason any payment by or on behalf of the
Borrower in respect of the Guaranteed Obligations is rescinded or must be
otherwise restored by any holder of any of the Guaranteed Obligations, whether
as a result of any proceedings in bankruptcy or reorganization or otherwise, and
each of the Subsidiary Guarantors agrees that it will indemnify the
Administrative Agent, the Issuing Lender and each Lender on demand for all
reasonable costs and expenses (including fees of counsel) incurred by the
Administrative Agent, any Lender or the Issuing Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
SECTION 3.04. SUBROGATION. Each Subsidiary Guarantor hereby
waives all rights of subrogation or contribution, whether arising by contract or
operation of law (including, without limitation, any such right arising under
the Federal Bankruptcy Code of 1978, as amended) or otherwise by reason of any
payment by it pursuant to the provisions of this Article III and further agrees
with the Borrower for the benefit of each of its creditors (including, without
limitation, the Issuing Lender, each Lender and the Administrative Agent) that
any such payment by it shall constitute a contribution of capital by such
Subsidiary Guarantor to the Borrower.
SECTION 3.05. REMEDIES. Each Subsidiary Guarantor agrees that,
as between such Subsidiary Guarantor and the Lenders, the obligations of the
Borrower hereunder may be declared to be forthwith due and payable as provided
in Article VIII or Section 2.04(i), as applicable (and shall be deemed to have
become automatically due and payable in the circumstances provided in Article
VIII or Section 2.04(i), as applicable) for purposes of Section 3.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by such Subsidiary Guarantor for purposes of Section
3.01.
SECTION 3.06. INSTRUMENT FOR THE PAYMENT OF MONEY. Each
Subsidiary Guarantor hereby acknowledges that the guarantee in this Article III
constitutes an instrument for the payment of money, and consents and agrees that
the Issuing Lender, any
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Lender or the Administrative Agent, at its sole option, in the event of a
dispute by the Subsidiary Guarantors in the payment of any moneys due hereunder,
shall have the right to bring motion-action under New York CPLR Section 3213.
SECTION 3.07. CONTINUING GUARANTEE. The guarantee in this
Article III is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.
SECTION 3.08. RIGHTS OF CONTRIBUTION. The Subsidiary
Guarantors hereby agree, as between themselves, that if any Subsidiary Guarantor
shall become an Excess Funding Guarantor (as defined below) by reason of the
payment by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section 3.08
shall be subordinate and subject in right of payment to the prior payment in
full of the obligations of such Subsidiary Guarantor under the other provisions
of this Article III and such Excess Funding Guarantor shall not exercise any
right or remedy with respect to such excess until payment and satisfaction in
full of all of such obligations.
For purposes of this Section 3.08, (i) "Excess Funding
Guarantor" means, in respect of any Guaranteed Obligations, a Subsidiary
Guarantor that has paid an amount in excess of its Pro Rata Share of such
Guaranteed Obligations, (ii) "Excess Payment" means, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess
of its Pro Rata Share of such Guaranteed Obligations and (iii) "Pro Rata Share"
means, for any Subsidiary Guarantor, the ratio (expressed as a percentage) of
(x) the amount by which the aggregate present fair saleable value of all
properties of such Subsidiary Guarantor (excluding any shares of stock of, or
ownership interest in, any other Subsidiary Guarantor) exceeds the amount of all
the debts and liabilities of such Subsidiary Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Subsidiary Guarantor hereunder and any obligations of any
other Subsidiary Guarantor that have been Guaranteed by such Subsidiary
Guarantor) to (y) the amount by which the aggregate fair saleable value of all
properties of all of the Obligors exceeds the amount of all the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of the Obligors hereunder and under
the other Loan Documents) of all of the Obligors, determined (A) with respect to
any Subsidiary Guarantor that is a party hereto on the Effective Date, as of the
Effective Date and (B) with respect to any other Subsidiary Guarantor, as of the
date such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In
any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Subsidiary Guarantor under
Section 3.01 would otherwise, taking into account the provisions of Section
3.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
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its liability under Section 3.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
ARTICLE IV
Representations and Warranties
The Borrower and each Subsidiary Guarantor represents and
warrants to the Lenders and the Administrative Agent, as to itself and each of
its Subsidiaries, that:
SECTION 4.01. ORGANIZATION; POWERS. The Borrower and each of
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization. The Borrower and each of its
Subsidiaries has all requisite power and authority under its organizational
documents to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 4.02. AUTHORIZATION; ENFORCEABILITY. The Transactions
are within the corporate power of each Credit Party and have been duly
authorized by all necessary corporate and, if required, stockholder action on
the part of such Credit Party. This Agreement has been duly executed and
delivered by each Obligor and constitutes a legal, valid and binding obligation
of such Obligor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 4.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority or any other
Person, except for approvals in connection with the Chancellor Acquisition each
of which will, prior to the Effective Date, have been duly obtained and all
waiting periods in connection therewith will have lapsed, (b) will not violate
any applicable law, policy or regulation or the charter, by-laws or other
organizational documents of any Credit Party or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon any Credit Party, or any of its
assets, or give rise to a right thereunder to require any payment to be made by
any Credit Party, and (d) except for the Liens created by the Security
Documents, will not result in the creation or imposition of any Lien on any
asset of the Credit Parties.
Without limiting the generality of the foregoing, if, after
giving effect to any Borrowing, or any issuance, amendment, renewal or extension
of any Letter of Credit, the sum of the aggregate amount of the Revolving Credit
Exposure plus the aggregate outstanding amount
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of Term Loans and Incremental Loans is greater than $200,000,000, the Borrower
will be in compliance with the provisions of Section 4.8 of the OCI Indenture.
SECTION 4.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE;
YEAR 2000 ISSUES.
(a) Financial Statements. The Borrower has heretofore
delivered to the Lenders the following financial statements:
(i) the audited consolidated balance sheet and statements of
earnings (loss), stockholders' deficit and cash flows of the Borrower
and its Subsidiaries (and, separately stated, of the Borrower and its
Restricted Subsidiaries) as of and for the fiscal year ended December
31, 1998, reported on by KPMG Peat Marwick LLP, independent public
accountants;
(ii) the unaudited consolidated balance sheet and statements
of earnings (loss), stockholders' deficit and cash flows of the
Borrower and its Subsidiaries (and, separately stated, of the Borrower
and its Restricted Subsidiaries) as of and for the three-month period
ended March 31, 1999, certified by a Financial Officer of the Borrower;
(iii) the audited consolidated balance sheets and statement of
operations of Chancellor Media Outdoor Corporation for the period from
July 22, 1998 through December 31, 1998 reported on by
PricewaterhouseCoopers LLP, and the unaudited consolidated balance
sheet and statement of operations of Chancellor Media Outdoor
Corporation for the three-month period ended March 31, 1999;
(iv) the unaudited consolidated balance sheet of Chancellor
Media Outdoor Corporation as of March 31, 1999, which has been adjusted
to give effect to the Preliminary Transactions under and as defined in
the Chancellor Acquisition Agreement, and the unaudited consolidated
statement of operations of Chancellor Media Outdoor Corporation for the
twelve month period ended March 31, 1999, which has been adjusted to
give effect to such Preliminary Transactions as if such Preliminary
Transactions had been consummated on April 1, 1998; and
(v) the pro forma statement of earnings (loss) of the Borrower
and its Restricted Subsidiaries as of and for the fiscal year ended
December 31, 1998 and for the three month period ended March 31, 1999,
and the pro forma balance sheet of the Borrower and its Restricted
Subsidiaries as of March 31, 1999, each of which financial statements
have been prepared under the assumption that the Chancellor Acquisition
had been consummated on January 1, 1998.
Such financial statements present fairly, in all material respects, (i) in the
case of the financial statements referred to in clauses (i) through (iv) above,
the respective consolidated actual financial condition of the respective
entities as at said respective dates and the consolidated and unconsolidated
results of their operations for the fiscal periods ended on said respective
dates, all in accordance with generally accepted accounting principles and
practices applied on a consistent basis, subject, in the case of unaudited
financial statements, to the absence of footnotes and year-end
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audit adjustments and (ii) in the case of the financial statements referred to
in clause (v) above, the pro forma financial condition of the Borrower and its
Restricted Subsidiaries as at March 31, 1999, and the consolidated and
unconsolidated results of their operations for the respective fiscal periods
ended on March 31, 1999, based on generally accepted accounting principles and
practices applied on a consistent basis, subject, in the case of unaudited
financial statements, to the absence of footnotes and year-end audit
adjustments. None of said entities has on the date hereof any material
contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said pro
forma balance sheet as at March 31, 1999 referred to in clause (v) above. Since
December 31, 1998, there has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of the
Borrower and its Restricted Subsidiaries taken as a whole from that set forth in
said pro forma consolidated financial statements referred to in clause (v)
above.
(b) Year 2000 Issues. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) the computer systems
of the Borrower and its Subsidiaries and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with which the
systems of the Borrower and its Subsidiaries interface) and the testing of all
such systems and equipment, as so reprogrammed, will be completed by November
30, 1999. The cost to the Borrower and its Subsidiaries of such reprogramming
and testing and of the reasonably foreseeable consequences of year 2000 to the
Borrower and its Subsidiaries (including reprogramming errors and the failure of
others' systems or equipment) will not result in a Default or a Material Adverse
Effect. Except for such of the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information systems of
the Borrower and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient to
permit the Borrower and its Subsidiaries to conduct its business without a
Material Adverse Effect.
SECTION 4.05. PROPERTIES.
(a) Properties Generally. Each of the Borrower and its
Restricted Subsidiaries has good title to, or valid leasehold interests in, all
its real and personal property material to its business, except for minor
defects in title that do not interfere with its ability to conduct its business
as currently conducted or to utilize such properties for their intended
purposes.
(b) Intellectual Property. Each of the Borrower and its
Restricted Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
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SECTION 4.06. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) Litigation. There are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority pending against or, to the
knowledge of any of the Credit Parties, threatened against or affecting the
Borrower or any of its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve
any of the Basic Documents or the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters
and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, none of the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or any inquiry, allegation,
notice or other communication from any Governmental Authority concerning its
compliance with any Environmental Law or (iv) knows of any basis for any
Environmental Liability.
(c) No Change in Disclosed Matters. Since the date of this
Agreement, there has been no change in the status of the Disclosed Matters that,
individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
SECTION 4.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations,
policies and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.08. INVESTMENT AND HOLDING COMPANY STATUS. No Credit
Party nor any of their respective subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended, or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended.
SECTION 4.09. TAXES. Each of the Credit Parties and their
respective Subsidiaries has timely filed or caused to be filed all Tax returns
and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which such Credit
Party has set aside on its books adequate reserves with respect thereto in
accordance with GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse
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Effect. The present value of all accumulated benefit obligations under each Plan
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $1,000,000 the fair
market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed by more than $1,000,000 the fair market value of the assets
of all such underfunded Plans.
SECTION 4.11. DISCLOSURE. The Credit Parties have disclosed to
the Lenders all agreements, instruments and corporate or other restrictions to
which any Credit Party is subject, and all other matters known to any Credit
Party, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Credit Parties to the Administrative Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement and the other Basic
Documents (including, without limitation, the information set forth in the
Confidential Information Memorandum and the information set forth in Schedule
4.11) or delivered pursuant hereto or thereto, when taken as a whole do not
contain any untrue statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Borrower and its Subsidiaries
to the Administrative Agent and the Lenders in connection with this Agreement
and the other Basic Documents and the transactions contemplated hereby and
thereby will be true, complete and accurate in every material respect, or (in
the case of projections) based on reasonable estimates, on the date as of which
such information is stated or certified. There is no fact known to the Borrower
that could reasonably be expected to have a Material Adverse Effect that has not
been disclosed herein, in the other Basic Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
SECTION 4.12. CAPITALIZATION. The authorized capital stock of
the Borrower consists, on the date hereof, of an aggregate of 3,000 shares of
common stock, with par value of $0.01 per share, of which, as of the date
hereof, 100 shares are duly and validly issued and outstanding, each of which
shares is fully paid and nonassessable and all of which are held beneficially
and of record by Holdings. As of the date hereof, (x) there are no outstanding
Equity Rights with respect to the Borrower and (y) there are no outstanding
obligations of the Borrower or any of its Subsidiaries to repurchase, redeem, or
otherwise acquire any shares of capital stock of the Borrower nor are there any
outstanding obligations of the Borrower or any of its Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
the Borrower or any of its Subsidiaries.
SECTION 4.13. MATERIAL AGREEMENTS AND LIENS.
(a) Indebtedness. Schedule 4.13 hereto is a complete and
correct list, as of the date of this Agreement (and as of the date of the
Chancellor Acquisition, giving effect thereto),
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of each credit agreement, loan agreement, indenture, guarantee, letter of credit
or other arrangement (other than this Agreement or the Existing Credit
Agreement) providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or guarantee
by, the Borrower or any of its Subsidiaries the aggregate principal or face
amount of which equals or exceeds (or may equal or exceed) $1,000,000, and the
aggregate principal or face amount outstanding or that may become outstanding
under each such arrangement is correctly described in Schedule 4.13.
(b) Liens. Schedule 4.13 hereto is a complete and correct
list, as of the date of this Agreement (and as of the date of the Chancellor
Acquisition, giving effect thereto), of each Lien securing Indebtedness of any
Person the aggregate principal or face amount of which equals or exceeds (or may
equal or exceed) $1,000,000 and covering any property of the Borrower or any of
its Subsidiaries, and the aggregate Indebtedness secured (or which may be
secured) by each such Lien and the Property covered by each such Lien is
correctly described in Schedule 4.13.
SECTION 4.14. SUBSIDIARIES, ETC.
(a) Subsidiaries. Set forth in Schedule 4.14 is a complete and
correct list of all of the Subsidiaries of the Credit Parties as of the date
hereof (and that will be acquired pursuant to the Chancellor Acquisition)
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such
Subsidiary, (iii) the nature of the ownership interests held by each such Person
and the percentage of ownership of such Subsidiary represented by such ownership
interests and (iv) whether such Subsidiary is a Restricted Subsidiary or
Unrestricted Subsidiary. Except as disclosed in Schedule 4.14, (i) each Credit
Party and its respective Subsidiaries owns (and, in the case of any Subsidiary
acquired pursuant to the Chancellor Acquisition, will own), free and clear of
Liens (other than Liens created pursuant to the Security Documents), and has
(and will have) the unencumbered right to vote, all outstanding ownership
interests in each Person shown to be held by it in Schedule 4.14, (y) all of the
issued and outstanding capital stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and (z) there are no
outstanding Equity Rights with respect to such Person. Each Subsidiary
identified on said Schedule 4.14 as an "Unrestricted Subsidiary" qualifies as an
Unrestricted Subsidiary under the criteria therefor set forth in Section 1.05.
(b) No Restrictions. Except as set forth in Schedule 4.14, as
of the date of this Agreement (and, in the case of any Subsidiary acquired in
the Chancellor Acquisition, as of the date of the Chancellor Acquisition), none
of the Restricted Subsidiaries of the Borrower is (or will be) subject to any
indenture, agreement, instrument or other arrangement containing any provision
of the type described in Section 7.08, other than any such provision the effect
of which has been unconditionally, irrevocably and permanently waived and other
than the prohibition on the sale, transfer, assignment, mortgage, pledge,
encumbrance or other disposition by MIL of its interest in the Missouri
Partnership.
SECTION 4.15. Chancellor Acquisition. The Borrower has
heretofore delivered to the Administrative Agent a true and complete copy of the
Chancellor Acquisition Agreement
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(including all modifications and supplements thereto); the Chancellor
Acquisition Agreement has been duly executed and delivered by each party thereto
and is in full force and effect and none of the parties thereto is in default of
any of its obligations thereunder. Each of the representations and warranties
set forth in Section 2.21 of the Chancellor Acquisition Agreement as in effect
on the date hereof will be true and complete on and as of the consummation of
the Chancellor Acquisition.
SECTION 4.16. Senior Notes Indenture. The Borrower has
heretofore delivered to the Administrative Agent a true and complete copy of the
Holdings Indenture and the related prospectus (including all modifications and
supplements thereto); the Holdings Indenture has been duly executed and
delivered by each party thereto and is in full force and effect and none of the
parties thereto is in default of any of its obligations thereunder.
ARTICLE V
Conditions
SECTION 5.01. EFFECTIVE DATE. The obligations of the Lenders
to make Loans, and of the Issuing Lender to issue Letters of Credit, hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.02):
(a) Counterparts of Agreement. The Administrative Agent (or
Special Counsel) shall have received from each party hereto either (i)
a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to Credit Parties. The Administrative
Agent (or Special Counsel) shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of Kean, Miller, Hawthorne, X'Xxxxxx, XxXxxxx
& Xxxxxx, L.L.P., counsel to the Credit Parties, substantially in the
form of Exhibit B, and covering such matters relating to the Credit
Parties, this Agreement, the other Loan Documents or the Transactions
as the Required Lenders shall request (and each Credit Party hereby
requests such counsel to deliver such opinion).
(c) Opinion of Special Counsel. The Administrative Agent shall
have received a favorable written legal opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of
Special Counsel, substantially in the form of Exhibit C (and the
Administrative Agent requests Special Counsel to deliver such opinion).
(d) Corporate Matters. The Administrative Agent (or Special
Counsel) shall have received such documents and certificates as the
Administrative Agent or Special Counsel may reasonably request relating
to the organization, existence and good standing of each Credit Party,
the authorization of the Transactions and any other legal matters
relating to the Credit Parties, this Agreement, the other Loan
Documents or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
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(e) Financial Officer Certificate. The Administrative Agent
(or Special Counsel) shall have received a certificate, dated the
Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 5.03.
(f) Notes. The Administrative Agent (or Special Counsel) shall
have received for each Lender that shall have requested a promissory
note, a duly completed and executed promissory note for such Lender.
(g) Pledge Agreement. The Administrative Agent (or Special
Counsel) shall have received (i) from each Obligor a counterpart of the
Pledge Agreement signed on behalf of such Obligor and (ii) to the
extent not previously delivered under the Existing Credit Agreement,
the stock certificates identified under the name of such Obligor in
Annex 1 thereto, accompanied by undated stock powers executed in blank.
In addition, each Obligor shall have taken such other action
(including, to the extent not previously effected under the Existing
Credit Agreement, delivering to the Administrative Agent for filing,
appropriately completed and duly executed copies of Uniform Commercial
Code financing statements) as the Administrative Agent shall have
requested in order to perfect the security interests created pursuant
to the Pledge Agreement.
(h) Holdings Guaranty and Pledge Agreement. The Administrative
Agent (or Special Counsel) shall have received (i) from Holdings a
counterpart of the Holdings Guaranty and Pledge Agreement signed on
behalf of Holdings and (ii) to the extent not previously delivered
under the Existing Credit Agreement, the stock certificates for the
Borrower identified in Annex 1 thereto, accompanied by undated stock
powers executed in blank. In addition, Holdings shall have taken such
other action (including, to the extent not previously effected under
the Existing Credit Agreement, delivering to the Administrative Agent
for filing, appropriately completed and duly executed copies of Uniform
Commercial Code financing statements) as the Administrative Agent shall
have requested in order to perfect the security interests created
pursuant to the Holdings Guaranty and Pledge Agreement.
(i) Solvency Certificate. The Administrative Agent shall have
received a certificate from a Financial Officer of the Borrower to the
effect that, as of the Effective Date and after giving effect to
Chancellor Acquisition, the initial Loans hereunder and to the other
Transactions:
(i) the aggregate value of all properties of the
Borrower and its Subsidiaries at their present fair saleable
value (i.e., the amount that may be realized within a
reasonable time, considered to be six months to one year,
either through collection or sale at the regular market value,
conceiving the latter as the amount that could be obtained for
the property in question within such period by a capable and
diligent businessman from an interested buyer who is willing
to purchase under ordinary selling conditions), exceed the
amount of all the debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) of the
Borrower and its Subsidiaries,
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(ii) the Borrower and its Subsidiaries will not, on a
consolidated basis, have an unreasonably small capital with
which to conduct their business operations as heretofore
conducted and
(iii) the Borrower and its Subsidiaries will have, on
a consolidated basis, sufficient cash flow to enable them to
pay their debts as they mature.
Such certificate shall include a statement to the effect that the
financial projections and underlying assumptions contained in such
analysis are, fair and reasonable and accurately computed.
(j) Insurance. The Administrative Agent shall have received a
certificate of a Financial Officer setting forth the insurance obtained
by the Borrower in accordance with the requirements of Section 6.05 and
stating that such insurance is in full force and effect and that all
premiums then due and payable thereon have been paid.
(k) Total Debt Ratio. The Administrative Agent shall have
received a certificate of a Financial Officer, in form and detail
satisfactory to the Administrative Agent, setting forth the Total Debt
Ratio as at the Effective Date (which shall in any event be less than
6.00 to 1).
(l) Repayment of Indebtedness under Existing Credit Agreement.
The Borrower shall have repaid in full the principal of and interest on
all of the "Loans" outstanding under the Existing Credit Agreement and
all commitments under the Existing Credit Agreement shall have been
terminated.
(m) Consummation of Chancellor Acquisition. The Administrative
Agent shall have received a certificate of a senior financial officer
of the Borrower providing evidence that the Chancellor Acquisition
shall have been (or shall be concurrently with the making of the
initial Loans hereunder on the Effective Date) consummated in all
material respects (i) in accordance with the terms of the Chancellor
Acquisition Agreement as in effect on the date hereof (except for any
material modifications, supplements or waivers thereof, or written
consents or determinations made by the parties thereto, that shall be
satisfactory to the Administrative Agent) and (ii) to the satisfaction
of the Administrative Agent.
(n) Release and Payment of Certain Chancellor Obligations. The
Administrative Agent shall have received evidence that any Indebtedness
of Chancellor or any of its Subsidiaries not permitted under Section
7.01 shall have been paid in full (or arrangements for such payment
satisfactory to the Administrative Agent shall have been made) and
that, to the extent any of the assets of Chancellor or any of its
Subsidiaries are subject to Liens not permitted under Section 7.02,
such Liens shall have been released (or arrangements for such release
satisfactory to the Administrative Agent shall have been made).
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(o) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent or any Lender
or Special Counsel shall have reasonably requested.
(p) Fees and Expenses. The Administrative Agent shall have
received all fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid
by the Borrower hereunder.
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans, and
of the Issuing Lender to issue Letters of Credit, hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) at or prior to 12:00 p.m., New York City time, on
November 30, 1999 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 5.02. INCREMENTAL LOAN BORROWINGS. The obligation of
each Incremental Loan Lender to make an Incremental Loan on the occasion of any
Borrowing is subject to the receipt by the Administrative Agent of evidence
satisfactory to it that after giving effect to such Borrowing and the other
transactions that are to occur on the date of such Borrowing (under the
assumption that such Borrowing and such other transactions had been consummated
on the first day of the respective periods for which calculations are to be made
under the covenants set forth in Section 7.09), the Borrower would have been in
compliance with the applicable provisions of Section 7.09, and a Financial
Officer shall have delivered a certificate to the foregoing effect to the
Administrative Agent.
SECTION 5.03. EACH EXTENSION OF CREDIT. The obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of the Issuing
Lender to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties. The representations and
warranties of each Credit Party set forth in this Agreement and the
other Loan Documents shall be true and correct on and as of the date of
such Borrowing, or (as applicable) the date of issuance, amendment,
renewal or extension of such Letter of Credit, both before and after
giving effect thereto and to the use of the proceeds thereof (or, if
any such representation or warranty is expressly stated to have been
made as of a specific date, such representation or warranty shall be
true and correct as of such specific date).
(b) No Defaults. At the time of and immediately after giving
effect to such Borrowing, or (as applicable) the date of issuance,
amendment, renewal or extension of such Letter of Credit, no Default
shall have occurred and be continuing.
(c) Consummation of Acquisition. To the extent that the
proceeds of such Loans are being applied to finance in whole or in part
any Acquisition that is not permitted under Section 7.04(e) (and that,
therefore, is being consummated with the consent of the
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Required Lenders), evidence that such Acquisition shall have been (or
shall be simultaneously) consummated in all material respects in
accordance with the terms of the respective acquisition agreement (it
being understood that any modifications, supplements or waivers
thereof, or written consents or determinations made by the parties
thereto, that shall affect in any material respect the provisions of
such acquisition shall have been consented to by the Required Lenders),
and the Administrative Agent shall have received a certificate of a
Financial Officer to such effect and to the effect that attached
thereto are true and complete copies of the documents delivered in
connection with the closing of such Acquisition. In addition, the
Administrative Agent shall have received copies of the legal opinions
delivered to the Borrower pursuant to such acquisition agreement in
connection with such Acquisition.
Each Borrowing Request, or request for issuance, amendment, renewal or extension
of a Letter of Credit, shall be deemed to constitute a representation and
warranty by the Borrower (both as of the date of such Borrowing Request, or
request for issuance, amendment, renewal or extension, and as of the date of the
related Borrowing or issuance, amendment, renewal or extension) as to the
matters specified in paragraphs (a) and (b) of this Section 5.03.
ARTICLE VI
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each Obligor covenants and
agrees with the Lenders that:
SECTION 6.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower:
(i) consolidated and consolidating statements of
income, retained earnings and cash flows of the Borrower and
its Subsidiaries (and, separately stated, of the Borrower and
its Restricted Subsidiaries) for such fiscal year and the
related consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries (and, separately stated, of the
Borrower and its Restricted Subsidiaries) as at the end of
such fiscal year, setting forth in each case in comparative
form the corresponding consolidated and consolidating figures
for the preceding fiscal year,
(ii) an opinion of independent certified public
accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit)
stating that said consolidated financial statements referred
to in the preceding clause (i)
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fairly present the consolidated financial condition and
results of operations of the Borrower and its Subsidiaries
(and of the Borrower and its Restricted Subsidiaries, as the
case may be) as at the end of, and for, such fiscal year in
accordance with generally accepted accounting principles, and
a statement of such accountants to the effect that, in making
the examination necessary for their opinion, nothing came to
their attention that caused them to believe that the Borrower
was not in compliance with Section 7.09, insofar as such
Section relates to accounting matters, and
(iii) a certificate of a Financial Officer stating
that said consolidating financial statements referred to in
the preceding clause (i) fairly present the respective
individual unconsolidated financial condition and results of
operations of the Borrower and of each of its Subsidiaries, in
each case in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for,
such fiscal year;
(b) as soon as available and in any event within 60 days after
the end of each of the first three quarterly fiscal periods of each
fiscal year of the Borrower:
(i) consolidated and consolidating statements of
income, retained earnings and cash flows of the Borrower and
its Subsidiaries (and, separately stated, of the Borrower and
its Restricted Subsidiaries) for such period and for the
period from the beginning of the respective fiscal year to the
end of such period, and the related consolidated and
consolidating balance sheets of the Borrower and its
Subsidiaries (and, separately stated, of the Borrower and its
Restricted Subsidiaries) as at the end of such period, setting
forth in each case in comparative form the corresponding
consolidated and consolidating figures for the corresponding
period in the preceding fiscal year (except that, in the case
of balance sheets, such comparison shall be to the last day of
the prior fiscal year),
(ii) a certificate of a Financial Officer, which
certificate shall state that said consolidated financial
statements referred to in the preceding clause (i) fairly
present the consolidated financial condition and results of
operations of the Borrower and its Subsidiaries (and of the
Borrower and its Restricted Subsidiaries, as the case may be)
and that said consolidating financial statements referred to
in the preceding clause (i) fairly present the respective
individual unconsolidated financial condition and results of
operations of the Borrower and of each of its Subsidiaries, in
each case in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for,
such period (subject to normal year-end audit adjustments);
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer (i)
certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Section
7.06 and 7.09 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of
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the audited financial statements referred to in Section 4.04 and, if
any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all registration statements, regular periodic reports and press
releases filed by the Borrower or any Subsidiary with the Securities
and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national
securities exchange;
(f) promptly upon the mailing thereof to the shareholders of
the Borrower generally or to the holders of the Senior Subordinated
Notes or the New Senior Subordinated Notes (or any Refunding
Indebtedness) or Senior Secured Notes generally, copies of all
financial statements, reports and proxy statements so mailed; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
In addition, the Borrower will arrange a meeting with the Lenders at a site
reasonably convenient to the parties and acceptable to the Administrative Agent,
at least once during each fiscal year (but in any event with a period of no more
than fifteen months between meetings), at which the Borrower will report upon
its financial condition, business and operations and have senior officers
available to answer questions of the Lenders regarding such financial condition,
business and operations.
SECTION 6.02. NOTICES OF MATERIAL EVENTS. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $5,000,000; and
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(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.02 shall be accompanied by a
statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 6.03. EXISTENCE; CONDUCT OF BUSINESS. The Borrower
will, and will cause each of its Restricted Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 7.04.
SECTION 6.04. PAYMENT OF OBLIGATIONS. The Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 6.05. MAINTENANCE OF PROPERTIES; INSURANCE. The
Borrower will, and will cause each of its Restricted Subsidiaries to, (a) keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations.
SECTION 6.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The
Borrower will, and will cause each of its Restricted Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Restricted
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
The Borrower, in consultation with the Administrative Agent, will arrange for a
meeting to be held at least once every year with the Lenders hereunder at which
the business and operations of the Borrower and its Restricted Subsidiaries are
discussed.
SECTION 6.07. FISCAL YEAR. To enable the ready and consistent
determination of compliance with the covenants set forth in Section 7 hereof,
the Borrower and its Subsidiaries will not change the last day of their fiscal
year from December 31 of each year, or the last day of the first three fiscal
quarters in each of its fiscal years from March 31, June 30 and September 30,
respectively.
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SECTION 6.08. COMPLIANCE WITH LAWS. The Borrower will, and
will cause each of its Restricted Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority (including Environmental
Laws) applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 6.09. USE OF PROCEEDS. The proceeds of the Term Loans
will be used only (i) to enable the Borrower to consummate the Chancellor
Acquisition, (ii) to refinance Indebtedness outstanding under the Existing
Credit Agreement, and (iii) for fees and expenses related to the transactions
referred to in the foregoing clauses (i) and (ii). The proceeds of the Revolving
Loans will be used only (i) to enable the Borrower to consummate Acquisitions
(including the Chancellor Acquisition), (ii) for capital expenditures, (iii) to
repurchase OCI Subordinated Notes as contemplated by Section 7.11(ii) and (iv)
for the general corporate purposes of the Borrower and its Restricted
Subsidiaries in the ordinary course of business. The proceeds of the Incremental
Loans will be used only for (i) Acquisitions and (ii) the general corporate
purposes of the Borrower and its Restricted Subsidiaries in the ordinary course
of business. No part of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X.
SECTION 6.10. CERTAIN OBLIGATIONS RESPECTING RESTRICTED
SUBSIDIARIES AND COLLATERAL SECURITY.
(a) Subsidiary Guarantors. In the event that the Borrower
shall form or acquire any new Subsidiary (other than an Unrestricted Subsidiary
or an Inactive Subsidiary) after the date hereof, the Borrower will, and will
cause each of its Restricted Subsidiaries to, cause such new Subsidiary within
five Business Days of such formation or acquisition:
(i) to execute and deliver to the Administrative Agent a
Joinder Agreement (and thereby to become a party to this Agreement, as
a "Subsidiary Guarantor" hereunder, and to the Pledge Agreement, as a
"Securing Party" thereunder) and to pledge and grant to the
Administrative Agent for the benefit of the Lenders hereunder a
security interest in any property owned by it that is of the type
included in the definition of "Collateral" under the Pledge Agreement;
(ii) to take such action (including delivering such shares of
stock and executing and delivering such Uniform Commercial Code
financing statements) as shall be necessary to create and perfect valid
and enforceable first priority Liens consistent with the provisions of
the Pledge Agreement on such Collateral under the Pledge Agreement; and
(iii) to deliver such proof of corporate action, incumbency of
officers and other documents as is consistent with those delivered by
each Subsidiary Guarantor pursuant to Section 5.01 upon the Effective
Date or as the Administrative Agent shall have reasonably requested.
Without limiting the generality of the foregoing, the Borrower
shall cause any Subsidiary that becomes a guarantor in respect of any Senior
Subordinated Notes or New Senior
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Subordinated Notes (or in respect of any Refunding Indebtedness), to immediately
become a Subsidiary Guarantor hereunder in compliance with the provisions of the
preceding paragraph, whether or not such Subsidiary is otherwise required to be
a Subsidiary Guarantor hereunder.
(b) Ownership of Restricted Subsidiaries. The Borrower will,
and will cause each of its Restricted Subsidiaries to, take such action from
time to time as shall be necessary to ensure that the percentage of the equity
capital of any class or character owned by it in any Restricted Subsidiary on
the date hereof (or, in the case of any newly formed or newly acquired
Subsidiary, on the date of formation or acquisition) is not at any time
decreased, other than by reason of transfers to the Borrower or another
Restricted Subsidiary. In the event that any additional shares of stock shall be
issued by any Restricted Subsidiary, the respective holder of such shares of
stock shall forthwith deliver to the Administrative Agent pursuant to the Pledge
Agreement the certificates evidencing such shares of stock, accompanied by
undated stock powers executed in blank and to take such other action as the
Administrative Agent shall request to perfect the security interest created
therein pursuant to the Pledge Agreement.
ARTICLE VII
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit shall have expired or terminated and all
LC Disbursements shall have been reimbursed, each Obligor covenants and agrees
with the Lenders that:
SECTION 7.01. INDEBTEDNESS. The Borrower will not, and will
not permit any Restricted Subsidiary to, create, incur, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness in respect of notes issued by the Borrower
after the date hereof so long as (i) no Default exists at the time of
such issuance or would result therefrom, (ii) such Indebtedness (and
any Guarantees of Subsidiaries in respect of such Indebtedness) is
subordinated upon terms no less favorable (from the standpoint of the
holders of "Senior Indebtedness" under and as defined in the Senior
Subordinated Notes Indentures) than the terms of subordination set
forth in the Senior Subordinated Notes Indentures, (iii) the scheduled
amortization of such notes (whether by sinking fund payments, mandatory
redemptions or repurchases or otherwise) shall not be earlier than the
later of six months after the maturity date for the Incremental Loans
and the maturity date of the then latest-maturing Senior Subordinated
Notes or any other New Senior Subordinated Notes, (iv) the covenants,
events of default and mandatory prepayment requirements (whether by
sinking fund payments, mandatory redemptions or repurchases or
otherwise) of the Refunding Indebtedness are not more restrictive than
the corresponding provisions of the Senior Subordinated Notes
Indentures, (v) after giving effect to the issuance of such notes the
Borrower shall be in compliance with Section 7.09 (the determination of
such compliance to be calculated on a pro forma basis as if such notes
had been issued as of the first day of the period of four fiscal
quarters most recently
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ended prior to the date of such issuance) and (vi) the Borrower
furnishes to the Administrative Agent on the date of such issuance a
certificate of a Financial Officer demonstrating in reasonable detail
compliance with the foregoing conditions;
(c) Indebtedness existing on the date hereof and set forth in
Schedule 7.01 and (x) in the case of any such Indebtedness (other than
the Senior Subordinated Notes and the OCI Subordinated Notes), any
extension, renewal, refunding or replacement of such Indebtedness that
does not increase the principal amount of such Indebtedness outstanding
on the date hereof and (y) in the case of the Senior Subordinated Notes
or the OCI Subordinated Notes, (A) any extension or renewal thereof so
long as such Senior Subordinated Notes or OCI Subordinated Notes (the
"Refunding Indebtedness"), as so extended or renewed, would have been
permitted to be issued on the date of such extension or renewal under
paragraph (b) above and (B) any refunding or replacement thereof from
the proceeds of New Senior Subordinated Notes issued in accordance with
paragraph (b) above that does not increase the principal amount of such
Indebtedness outstanding on the date of such refunding or replacement,
provided that this clause (c) shall not, after the Closing Date, permit
any such Indebtedness identified on said schedule that is to be paid on
the Closing Date;
(d) Indebtedness of the Borrower to any Restricted Subsidiary
and of any Restricted Subsidiary to the Borrower or any other
Restricted Subsidiary;
(e) Guarantees permitted under Section 7.03;
(f) Indebtedness of the Borrower under Equity Hedging
Arrangements, so long as the aggregate maximum contingent or potential
liability thereunder shall not on any date exceed $12,000,000 minus the
aggregate amount in fact paid by the Borrower under all Equity Hedging
Arrangements during the period commencing on the date hereof and ending
on such date; and
(g) additional Indebtedness of the Borrower or any Restricted
Subsidiary (determined on a consolidated basis without duplication in
accordance with GAAP) in an aggregate principal amount up to but not
exceeding $65,000,000 at any one time outstanding.
SECTION 7.02. LIENS. The Borrower will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or permit to exist
any Lien on any Property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(a) Liens created under the Security Documents;
(b) any Lien on any property or asset of the Borrower or any
Restricted Subsidiary existing on the date hereof and set forth in
Schedule 7.02, provided that (i) such Lien shall not apply to any other
property or asset of the Borrower or any Restricted Subsidiary and (ii)
such Lien shall secure only those obligations which it
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secures on the date hereof and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(c) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or (in the case of property taxes
and assessments not exceeding $500,000 in the aggregate more than 90
days overdue) or which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Borrower or the affected Restricted
Subsidiaries, as the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens, and vendors' Liens imposed by statute
or common law not securing the repayment of Indebtedness, arising in
the ordinary course of business which are not overdue for a period of
more than 60 days or which are being contested in good faith and by
appropriate proceedings and Liens securing judgments (including,
without limitation, pre-judgment attachments) but only to the extent
for an amount and for a period not resulting in an Event of Default
under Section 8(j) hereof;
(e) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, tenders, trade
contracts (other than for borrowed money), leases (other than capital
leases), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not, in the aggregate, materially detract from the value of the
Property of the Borrower and its Restricted Subsidiaries or interfere
with the ordinary conduct of the business of the Borrower or any of its
Restricted Subsidiaries;
(h) additional Liens upon real and/or personal Property
created after the date hereof provided that the aggregate amount of
obligations secured thereby shall not exceed $20,000,000;
(i) Liens consisting of bankers' liens and rights of setoff,
in each case, arising by operation of law, and Liens on documents
presented in letters of credit drawings; and
(j) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Restricted Subsidiary, provided that
(i) such Liens secure Indebtedness permitted by Section 7.01(g), (ii)
such Liens and the Indebtedness secured thereby are incurred prior to
or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby
does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets and (iv) such
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security interests shall not apply to any other property or assets of
the Borrower or any Restricted Subsidiary.
SECTION 7.03. CONTINGENT LIABILITIES; SURETY BONDS.
(a) Contingent Liabilities. The Borrower will not, and will
not permit any Restricted Subsidiary to, Guarantee the Indebtedness or other
obligations of any Person, or Guarantee the payment of dividends or other
distributions upon the stock of, or the earnings of, any Person, except:
(i) endorsements of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(ii) Guarantees by the Borrower of Indebtedness of any
Subsidiary and by any Restricted Subsidiary of Indebtedness of the
Borrower or any other Subsidiary, provided that the aggregate amount of
such Guarantees by the Borrower and its Restricted Subsidiaries of
obligations of Unrestricted Subsidiaries, together with any Investments
permitted under Section 7.05(a)(i), shall not exceed $100,000,000;
(iii) Guarantees in effect on the date hereof which are
disclosed in Schedule 7.03, any replacements thereof in amounts not
exceeding such Guarantees and any additions thereto, provided the
additions thereto do not exceed $10,000,000 outstanding in the
aggregate;
(iv) Surety Bonds, subject, however, to the limits set forth
in Section 7.03(b);
(v) all transactions with or for the benefit of Affiliates
that are expressly permitted under the proviso in Section 7.07; and
(vi) obligations in respect of Letters of Credit.
(b) Surety Bonds. The Borrower shall not, and shall not permit
any Restricted Subsidiary to, create, incur or suffer to exist any obligations
(contingent or otherwise) with respect to any Surety Bonds on behalf of
Affiliates in an aggregate face amount (as to the Borrower and the Restricted
Subsidiaries taken together) exceeding $25,000,000 at any time outstanding.
SECTION 7.04. FUNDAMENTAL CHANGES. The Borrower will not, nor
will it permit any of its Restricted Subsidiaries to, enter into any transaction
of merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution). The Borrower will not, nor
will it permit any of its Restricted Subsidiaries to, acquire any business or
property from, or capital stock of, or be a party to any acquisition of, any
Person except for purchases of inventory and other property to be sold or used
in the ordinary course of business, Investments permitted under Section 7.05 and
Capital Expenditures. The Borrower will not, nor will it permit any of its
Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose
of, in one transaction or a series of transactions, any part of its business or
property, whether now owned or hereafter acquired (including, without
limitation,
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receivables and leasehold interests, but excluding (x) obsolete or worn-out
property, tools or equipment no longer used or useful in its business and (y)
any inventory or other property sold or disposed of in the ordinary course of
business and on ordinary business terms).
Notwithstanding the foregoing provisions of this Section 7.04:
(a) any Restricted Subsidiary may be merged or consolidated
with or into any other Restricted Subsidiary; provided that if any such
transaction shall be between a Restricted Subsidiary and a Wholly Owned
Restricted Subsidiary of the Borrower, the Wholly Owned Restricted
Subsidiary shall be the continuing or surviving corporation;
(b) any Restricted Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its property (upon voluntary
liquidation or otherwise) to any Wholly Owned Restricted Subsidiary of
the Borrower;
(c) the capital stock of any Restricted Subsidiary may be
sold, transferred or otherwise disposed of to the Borrower or any
Wholly Owned Restricted Subsidiary of the Borrower;
(d) the Borrower or any of its Restricted Subsidiaries may
sell assets (including, without limitation, capital stock issued by any
of their respective Subsidiaries) for fair market value provided that
(i) the aggregate amount of Disposition Investments and other non-cash
proceeds (valued at the fair market value thereof determined in good
faith by the Board of Directors of the Borrower) received by the seller
in the sale of any asset shall not exceed 15% of the total sales price
for such asset (including (A) the amount of liabilities, if any,
assumed as a portion of the sales price and (B) the amount of any
repayment by the seller of the principal of Indebtedness to the extent
that (X) such Indebtedness is secured by a Lien on such asset and (Y)
the seller is required by the transferee of (or holder of a Lien on)
such assets to repay such principal as a condition to the purchase of
such asset) and (ii) no more than 10% of EBITDA for any fiscal year of
the Borrower shall be attributable to all such assets so sold in the
following fiscal year of the Borrower;
(e) the Borrower or any Wholly Owned Restricted Subsidiary of
the Borrower may acquire any business, and the related assets, of any
other Person including of an Unrestricted Subsidiary (whether by way of
purchase of assets or stock, by merger or consolidation or otherwise),
so long as:
(i) such Acquisition (if by purchase of assets,
merger or consolidation) shall be effected in such manner so
that the acquired business, and the related assets, are owned
either by the Borrower or a Wholly Owned Restricted Subsidiary
of the Borrower and, if effected by merger or consolidation
involving the Borrower, the Borrower shall be the continuing
or surviving entity and, if effected by merger or
consolidation involving a Wholly Owned Restricted Subsidiary
of the Borrower, such Wholly Owned Restricted Subsidiary shall
be the continuing or surviving entity;
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(ii) such Acquisition (if by purchase of stock) shall
be effected in such manner so that the acquired entity becomes
a Wholly Owned Restricted Subsidiary of the Borrower;
(iii) after giving effect to such Acquisition the
Borrower shall be in compliance with Section 7.09 (the
determination of such compliance to be calculated on a pro
forma basis, as at the end of and for the period of four
fiscal quarters most recently ended prior to the date of such
Acquisition for which financial statements of the Borrower and
its Restricted Subsidiaries are available, under the
assumption that such Acquisition shall have occurred, and any
Indebtedness in connection therewith shall have been incurred,
at the beginning of the applicable period, and under the
assumption that interest for such period had been equal to the
actual weighted average interest rate in effect for the Loans
hereunder on the date of such Acquisition) and, in the event
that the aggregate amount of expenditures in respect of such
Acquisition shall exceed $10,000,000, the Borrower shall have
delivered to the Administrative Agent a certificate of a
Financial Officer showing calculations in reasonable detail to
demonstrate compliance with this subclause (iii); and
(iv) immediately prior to such Acquisition and after
giving effect thereto, no Default shall have occurred and be
continuing; and
(f) the Borrower and its Restricted Subsidiaries may dispose
of any one or more outdoor properties in exchange for one or more other
outdoor properties (including logo signage businesses), so long as the
percentage of the aggregate EBITDA attributable to the properties so
disposed of during any single fiscal year does not exceed 10% of the
aggregate EBITDA of the Borrower and its Restricted Subsidiaries for
the most recently-ended fiscal year (such EBITDA to be determined for
these purposes without giving effect to the last paragraph of the
definition of such term in Section 1.01).
SECTION 7.05. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS; HEDGING AGREEMENTS.
(a) Investments, Etc. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, make or permit to remain
outstanding any Investment, except:
(i) Investments by the Borrower and its Restricted
Subsidiaries in Subsidiaries and by any Restricted Subsidiary in the
Borrower (including Guarantees by the Borrower of Indebtedness of any
Subsidiary and by any Restricted Subsidiary of Indebtedness of the
Borrower or any other Subsidiary), provided that the aggregate amount
of any such Investments (including Guarantees) by the Borrower and its
Restricted Subsidiaries in Unrestricted Subsidiaries after the date
hereof (net of returns on such Investments after the date hereof) shall
not exceed $100,000,000 and no such Investment may be made at any time
that a Default exists or if a Default would result therefrom;
(ii) Permitted Investments;
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(iii) operating deposit accounts with banks;
(iv) Disposition Investments received in connection with any
Disposition permitted under Section 7.04(d) or any Disposition to which
the Lenders shall have consented in accordance with Section 10.02;
(v) Investments in Affiliates not exceeding $15,000,000 at any
one time outstanding;
(vi) Investments in Affiliates described in, and permitted by,
Section 7.07 (other than clause (iii) of the proviso to Section 7.07);
and
(vii) additional Investments in Persons that are not
Affiliates up to but not exceeding $150,000,000 in the aggregate at any
one time outstanding, provided that no such Investment may be made at
any time that a Default exists or if a Default would result therefrom.
(b) Hedging Agreements. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Restricted Subsidiary is
exposed in the conduct of its business or the management of its liabilities.
SECTION 7.06. DIVIDEND PAYMENTS. The Borrower will not, nor
will it permit any of its Restricted Subsidiaries to, declare or make any
Dividend Payment at any time; provided, however, that the Borrower may declare
and make Dividend Payments in cash (including, without limitation, Dividend
Payments to Affiliates), subject to the satisfaction of each of the following
conditions on the date of such Dividend Payment and after giving effect thereto:
(i) no Default shall have occurred and be continuing (except
that to the extent the Dividend Payments made during any single fiscal
year do not exceed $500,000, such Dividend Payments may be made
notwithstanding that a Default under Section 8(c) or 8(d) exists, so
long as no other Default shall have occurred and be continuing); and
(ii) the aggregate amount of Dividend Payments made during any
fiscal year shall not exceed the greater of (A) $500,000 and (B) the
lesser of (x) 50% of Excess Cash Flow for the immediately preceding
fiscal year and (y) $20,000,000.
Notwithstanding the foregoing, (w) the Borrower may make
Dividend Payments consisting of the retirement of employee stock options and
other Equity Rights upon the death, retirement or termination of employment of
officers and employees in an aggregate amount in any fiscal year not exceeding
$1,000,000, so long as at the time thereof and after giving effect thereto, no
Default shall have occurred and be continuing, (x) the Borrower may enter into
Equity Hedging Arrangements, so long as the aggregate maximum contingent or
potential liability thereunder shall not on any date exceed $12,000,000 minus
the aggregate amount in fact paid by the Borrower under all Equity Hedging
Arrangements during the period commencing on
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the date hereof and ending on such date, (y) the Borrower may make Dividend
Payments in amounts necessary to enable Holdings to pay accrued interest on the
Senior Notes, so long as (A) at the time of such Dividend Payment and after
giving effect thereto no Event of Default shall have occurred and be continuing
and (B) after giving effect to such Dividend Payment, the Borrower would be in
pro forma compliance with the provisions of Section 7.09 (as if such Dividend
Payment had been made on the first date of the relevant period for which each of
the ratios therein referred to is being determined) and (z) the Borrower may
make Dividend Payments in an aggregate amount up $12,500,000 during any single
fiscal year to enable Holdings to make payments in respect of Qualified Holdings
Obligations.
Nothing herein shall be deemed to prohibit the payment of any
dividend or distribution by any Subsidiary of the Borrower so long as such
dividends or distributions are declared and paid ratably to the shareholders,
partners and other equity holders of such Subsidiary.
SECTION 7.07. TRANSACTIONS WITH AFFILIATES. Except as
expressly permitted by this Agreement, the Borrower will not, nor will it permit
any of its Restricted Subsidiaries to, directly or indirectly (a) make any
Investment in an Affiliate; (b) transfer, sell, lease, assign or otherwise
dispose of any property to an Affiliate unless such transaction is effected in
the ordinary course of business and the fair market value of such property
transferred, sold, leased, assigned or otherwise disposed of in any transaction
or series of related transactions is less than or equal to $250,000; (c) merge
into or consolidate with an Affiliate, or purchase or acquire property from an
Affiliate unless such purchase or acquisition is effected in the ordinary course
of business, the fair market value of such property purchased or acquired in any
transaction or series of related transactions is less than or equal to $250,000
and the consideration paid in connection therewith does not exceed fair market
value; or (d) enter into any other transaction directly or indirectly with or
for the benefit of an Affiliate (including, without limitation, guarantees and
assumptions of obligations of an Affiliate) unless such transaction is effected
in the ordinary course of business, the goods, services, obligations or other
consideration that is the subject of such transaction has a fair market value
(or other appropriate value determined by reference to similar transactions
conducted on an arms' length basis) less than or equal to $250,000 and the
consideration received (or paid) by the Borrower or the relevant Restricted
Subsidiary, as the case may be, is not less than (if received) or more than (if
paid) the consideration that would be received or paid, as the case may be, in a
comparable transaction effected on an arms' length basis with a Person that is
not an Affiliate; provided that:
(i) any Affiliate who is an individual may serve as a
director, officer, employee or consultant of the Borrower or any of its
Restricted Subsidiaries and receive reasonable compensation for his or
her services in such capacity;
(ii) the Borrower and its Restricted Subsidiaries may engage
in and continue the transactions with or for the benefit of Affiliates
which are described in Schedule 7.07;
(iii) the Borrower and its Restricted Subsidiaries may make
Acquisitions of Affiliates so long as (x) the consideration paid in
connection therewith does not exceed fair market value, as determined
by the disinterested members of the board of directors of the Borrower,
(y) in the case of Acquisitions involving consideration valued in
excess of
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$1,000,000, the Borrower or Restricted Subsidiary, as the case may be,
shall have delivered a certificate of an independent appraiser to such
effect and (z) the aggregate amount of consideration for all such
Acquisitions after the date hereof does not exceed $10,000,000;
(iv) the Borrower and its Restricted Subsidiaries may enter
into and be obligated with respect to site leases (and renewals and
extensions thereof) entered into in the ordinary course of business, so
long as the Affiliates benefiting from such site leases pay (or
reimburse the Borrower or the Restricted Subsidiaries for) their fair
share of the expenses thereunder and such site leases are otherwise no
less favorable to the Borrower and its Restricted Subsidiaries than a
comparable transaction effected on an arms' length basis with a Person
that is not an Affiliate; and
(v) the Borrower and its Restricted Subsidiaries may enter
into and continue agreements to provide management services to
Affiliates, warehouse leases and contracts for the sale of outdoor
advertising services, in the form customarily entered into, and Surety
Bond and insurance programs, in each case referred to in this clause
(v) in the ordinary course of business and in which Affiliates are
co-obligors and co-beneficiaries, provided that all such Affiliates
agree to reimburse the Borrower and each Restricted Subsidiary for
their fair share of rent, premiums, deposits and other payments
required to be made under any such agreement or program.
SECTION 7.08. RESTRICTIVE AGREEMENTS. The Borrower will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any Restricted Subsidiary to create, incur or permit
to exist any Lien upon any of its property or assets, or (b) the ability of any
Restricted Subsidiary to pay dividends or other distributions with respect to
any shares of its capital stock or to make or repay loans or advances to the
Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the
Borrower or any other Restricted Subsidiary; provided that (i) the foregoing
shall not apply to restrictions and conditions imposed by law or by this
Agreement, (ii) the foregoing shall not apply to restrictions and conditions
imposed by the Senior Subordinated Notes Indentures, any New Senior Subordinated
Notes Indenture, the OCI Indenture or any indenture pursuant to which the
refunding or replacement of Indebtedness in respect of the Senior Subordinated
Notes or OCI Subordinated Notes occurs in accordance with the terms of this
Agreement, (iii) the foregoing shall not apply to restrictions and conditions
existing on the date hereof identified on Schedule 7.08 (but shall apply to any
extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition), (iv) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Restricted Subsidiary pending such sale, provided such restrictions
and conditions apply only to the Restricted Subsidiary that is to be sold and
such sale is permitted hereunder, (v) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (vi) clause
(a) of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
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SECTION 7.09. CERTAIN FINANCIAL COVENANTS.
(a) Total Debt Ratio. The Borrower will not permit the Total
Debt Ratio at any time during any period below to exceed the ratio set opposite
such period below:
Period Ratio
------ -----
From the Effective Date
through December 30, 2000 6.25 to 1
From December 31, 2000
through December 30, 2001 6.00 to 1
From December 31, 2001
through December 30, 2002 5.75 to 1
From December 31, 2002
and at all times thereafter 5.50 to 1
(b) Senior Debt Ratio. The Borrower will not permit the Senior
Debt Ratio at any time during the period below to exceed the ratio set opposite
such period below:
Period Ratio
------ -----
From the Effective Date
through December 30, 2000 4.50 to 1
From December 31, 2000
through December 30, 2001 4.00 to 1
From December 31, 2001
through December 30, 2002 3.50 to 1
From December 31, 2002
and at all times thereafter 3.00 to 1
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(c) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio at any time during the period below to be less than the
ratio set opposite such period below:
Period Ratio
------ -----
From the Effective Date
through December 30, 2000 1.80 to 1
From December 31, 2000
through December 30, 2001 2.00 to 1
From December 31, 2001
and at all times thereafter 2.20 to 1
(d) Fixed Charges Ratio. The Borrower will not permit the
Fixed Charges Ratio as at the last day of any fiscal quarter to be less than
1.05 to 1.
SECTION 7.10. LINES OF BUSINESS. Neither the Borrower nor any
of its Subsidiaries shall engage to any substantial extent in any line or lines
of business activity which would cause earnings from outdoor advertising,
out-of-home media, logo signage and other activities reasonably ancillary
thereto to constitute less than 80% of EBITDA for any period.
SECTION 7.11. SUBORDINATED INDEBTEDNESS. Except as permitted
by Section 7.01(c), the Borrower will not, nor will it permit any of its
Restricted Subsidiaries to, purchase, redeem, retire or otherwise acquire for
value, or set apart any money for a sinking, defeasance or other analogous fund
for the purchase, redemption, retirement or other acquisition of, or make any
voluntary payment or prepayment of the principal of or interest on, or any other
amount owing in respect of, any Subordinated Indebtedness, except for (i)
regularly scheduled payments or prepayments of principal and interest in respect
thereof required pursuant to the instruments evidencing such Subordinated
Indebtedness and (ii) any repurchase of OCI Subordinated Notes pursuant to the
"Change of Control" offer required to be made under the OCI Indenture as a
result of the Borrower becoming a Subsidiary of Holdings.
SECTION 7.12. MODIFICATIONS OF CERTAIN DOCUMENTS. The Borrower
will not, and will not permit any of its Restricted Subsidiaries to, consent to
any modification, supplement or waiver of any of the documents or agreements
evidencing or governing any Senior Subordinated Notes or OCI Subordinated Notes
or (after the issuance thereof in accordance with the requirements of Section
7.01(b)) any New Senior Subordinated Notes without the prior consent of the
Required Lenders, provided that, subject to the last paragraph of Section
6.10(a), the Borrower may supplement the Senior Subordinated Notes Indentures,
the OCI Indenture or the New Senior Subordinated Notes Indentures in order to
add or delete Subsidiaries as guarantors thereunder as required or permitted by
the terms thereof without the prior consent of the Required Lenders. Without
limiting the generality of the foregoing, except for Guarantees by Restricted
Subsidiaries of the Borrower required by the Senior Subordinated Notes
Indentures, the OCI Indenture or the New Senior Subordinated Notes Indentures,
as the case may be, the Borrower
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will not permit any Restricted Subsidiary to Guarantee any other Subordinated
Indebtedness without the prior consent of the Required Lenders.
In addition, the Borrower will not consent to any
modification, supplement or waiver of Article 9 of the Chancellor Acquisition
Agreement, or any other provision of the Chancellor Acquisition Agreement that
would materially adversely affect the Lenders, without the prior consent of the
Required Lenders.
ARTICLE VIII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of, or
interest on, any Loan or any reimbursement obligation in respect of any
LC Disbursement, or any fee or other amount payable under this
Agreement, when and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b) any representation or warranty made or deemed made by or
on behalf of any Credit Party in or in connection with this Agreement,
any of the other Basic Documents or any amendment or modification
hereof or thereof, or in any report, certificate, financial statement
or other document furnished pursuant to or in connection with this
Agreement, any of the other Basic Documents or any amendment or
modification hereof or thereof shall prove to have been incorrect when
made or deemed made in any material respect;
(c) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 6.02, 6.03 (with
respect to the Borrower's existence), 6.09 or 6.10 or in Article VII
(other than Section 7.07 or 7.10); or Holdings shall fail to observe or
perform any covenant set forth in Article V of the Holdings Guaranty
and Pledge Agreement;
(d) the Borrower or any of its Subsidiaries shall fail to
observe or perform any covenant, condition or agreement contained in
this Agreement (other than those specified in clause (a), (b) or (c) of
this Article) or any other Loan Document, and such failure shall
continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent (given at the request of any Lender) to the
Borrower;
(e) Holdings, the Borrower or any of its Restricted
Subsidiaries shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable;
(f) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material
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Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (f) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any of its
Restricted Subsidiaries or the debts of any of them, or of a
substantial part of the assets of any of them, under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the
Borrower or any of its Restricted Subsidiaries or for a substantial
part of the assets of any of them, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(h) the Borrower or any of its Restricted Subsidiaries shall
(i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (g) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its
Restricted Subsidiaries or for a substantial part of the assets of any
of them, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(i) the Borrower or any of its Restricted Subsidiaries shall
become unable, admit its inability in writing or fail generally to pay
its debts as they become due;
(j) a final judgment or judgments for the payment of money in
excess of $4,000,000 in the aggregate for the Borrower and its
Restricted Subsidiaries (exclusive of judgment amounts fully covered by
insurance where the insurer has admitted liability in respect of such
judgment) or in excess of $25,000,000 in the aggregate for the Borrower
and its Restricted Subsidiaries (regardless of insurance coverage)
shall be rendered by one or more courts, administrative tribunals or
other bodies having jurisdiction against the Borrower or any of its
Restricted Subsidiaries and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within 60 days from the date of entry
thereof and the Borrower or the relevant Restricted Subsidiary shall
not, within said period of 60 days, or such longer period during which
execution of the same shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal;
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(k) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(l) A reasonable basis shall exist for the assertion against
the Borrower or any of its Subsidiaries of (or there shall have been
asserted against the Borrower or any of its Subsidiaries) claims or
liabilities, whether accrued, absolute or contingent, based on or
arising from the generation, storage, transport, handling or disposal
of Hazardous Materials by the Borrower or any of its Subsidiaries or
Affiliates, or any predecessor in interest of the Borrower or any of
its Subsidiaries or Affiliates, or relating to any site or facility
owned, operated or leased by the Borrower or any of its Subsidiaries or
Affiliates, which claims or liabilities (insofar as they are payable by
the Borrower or any of its Subsidiaries but after deducting any portion
thereof which is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor), in the judgment of the
Required Lenders are reasonably likely to be determined adversely to
the Borrower or any of its Subsidiaries, and the amount thereof is,
singly or in the aggregate, reasonably likely to have a Material
Adverse Effect;
(m) any of the following events shall occur and be continuing:
(i) the Borrower shall cease to be a Wholly Owned
Subsidiary of Holdings;
(ii) the capital stock of Holdings owned directly or
indirectly by Xxxxxxx X. Xxxxx, III or Xxxxx X. Xxxxxx, Xx.,
either of their wives, children, grandchildren, trusts of
which either of them, their wives, children and grandchildren
are the sole beneficiaries and for which one or more of such
individuals are the sole trustee(s) and any Qualified Xxxxxx
Partnership shall (on a fully diluted basis after giving
effect to the exercise of any outstanding rights or options to
acquire capital stock of the Borrower) cease to constitute at
least such percentage of the aggregate voting stock of
Holdings as is sufficient at all times to elect a majority of
the Board of Directors of Holdings;
(iii) any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on
the date hereof), other than Xxxxxxx X. Xxxxx, III or Xxxxx X.
Xxxxxx, Xx. and any of the other permitted holders referred to
in clause (ii) above, shall acquire or own, directly or
indirectly, beneficially or of record, shares representing
more than 20% of the ordinary voting power represented by the
issued and outstanding voting capital stock of Holdings, or
(y) acquire direct or indirect Control of Holdings; or
(iv) a majority of the seats (other than vacant
seats) on the board of directors of Holdings shall be occupied
by Persons who were neither (x) nominated by the board of
directors of Holdings nor (y) appointed by directors so
nominated;
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(n) Any of the following shall occur: (i) the Liens created by
the Pledge Agreement or the Holdings Guaranty and Pledge Agreement
shall at any time (other than by reason of the Administrative Agent
relinquishing possession of certificates evidencing shares of stock of
Subsidiaries pledged thereunder) cease to constitute valid and
perfected Liens on the Collateral (as defined therein) intended to be
covered thereby; (ii) except for expiration in accordance with its
terms, the Pledge Agreement or Holdings Guaranty and Pledge Agreement
shall for whatever reason be terminated, or shall cease to be in full
force and effect; or (iii) the enforceability of the Pledge Agreement
or Holdings Guaranty and Pledge Agreement shall be contested by any
Credit Party party thereto; or
(o) Holdings or any Subsidiary Guarantor shall assert that its
obligations hereunder or under the Security Documents shall be invalid
or unenforceable;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (g) or (h) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE IX
The Administrative Agent
Each of the Lenders and the Issuing Lender hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such actions and powers as are reasonably
incidental thereto.
Chase shall have the same rights and powers in its capacity as
a Lender hereunder as any other Lender and may exercise the same as though Chase
were not the Administrative Agent, and Chase and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
any Credit Party or any Subsidiary or other Affiliate of any thereof as if it
were not the Administrative Agent hereunder.
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The Administrative Agent shall not have any duties or
obligations except those expressly set forth in this Agreement and the other
Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by this Agreement and the other Loan Documents that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein and in the other Loan Documents,
the Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to any Credit Party
or any of their respective Subsidiaries that is communicated to or obtained by
Chase or any of its Affiliates in any capacity. The Administrative Agent shall
not be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders or, if provided herein, with the consent or at
the request of the Required Revolving Credit Lenders, the Required Tranche A
Lenders, Required Tranche B Lenders or the Required Incremental Loan Lenders, or
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall not be deemed to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or the other Loan
Documents, (ii) the contents of any certificate, report or other document
delivered hereunder or under any of the other Loan Documents or in connection
herewith of therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or in any
other Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, the other Loan Documents or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article V or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall not, except to the extent
expressly instructed by the Required Lenders with respect to collateral security
under the Security Documents, be required to initiate or conduct any litigation
or collection proceedings hereunder or under any other Loan Document.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all of its
duties, and exercise its rights and powers, by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and
any such sub-agent may perform any and all its duties and
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exercise its rights and powers through its Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to its activities in connection with the syndication of the credit
facilities provided for herein as well as activities as the Administrative
Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent, as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Lender and the
Borrower. Upon any such resignation, the Required Lenders shall have the right,
in consultation with the Borrower, to appoint a successor Administrative Agent.
If no successor shall have been so appointed and shall have accepted such
appointment within 30 days after such retiring Administrative Agent gives notice
of its resignation, then such retiring Administrative Agent may, on behalf of
the Lenders and the Issuing Lender, appoint a successor Administrative Agent,
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as Administrative Agent,
by a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents. The fees payable by
the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After an Administrative Agent's resignation hereunder, the provisions
of this Article and Section 10.03 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent, the Issuing Lender or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent, the Issuing Lender or any other Lender and based on
such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement and the other Loan Documents, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE X
Miscellaneous
SECTION 10.01. NOTICES. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxx Xxxxx, Xxxxxxxxx, 00000, Attention of Xxxxx Xxxxx (Telecopy No.
(000) 000-0000);
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(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (212)
552-5658), with a copy to The Chase Manhattan Bank, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxxxx (Telecopy No
(000) 000-0000); and
(c) if to any Lender (including to Chase in its capacity as
the Issuing Lender), to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. WAIVERS; AMENDMENTS.
(a) Waivers. No failure or delay by the Administrative Agent,
the Issuing Lender or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Lender and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Credit Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section 10.02, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Lender may have had notice or knowledge of such Default at
the time.
(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required Lenders or
by the Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of such Lender;
(ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected
thereby;
(iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration or reduction
of any Commitment, or postpone the ultimate expiration date of
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any Letter of Credit beyond the Revolving Credit Termination Date,
without the written consent of each Lender affected thereby;
(iv) change Section 2.16(b), (c) or (d) in a manner that would
alter the pro rata sharing of payments required thereby, without in
each case the written consent of each Lender;
(v) alter the manner in which payments or prepayments of
principal, interest or other amounts hereunder shall be applied between
or among the Lenders or Classes of Loans without the written consent of
the Required Lenders of each Class affected thereby;
(vi) change any of the provisions of this Section 10.02 or the
percentage in the definition of "Required Lenders" without the written
consent of each Lender; or
(vii) release any Significant Subsidiary Guarantor from its
obligations in respect of its Guarantee under Article III, without the
written consent of each Lender, except in connection with the
disposition of all of the shares of capital stock of a Subsidiary
Guarantor in a transaction permitted hereunder or as to which the
Required Lenders have consented;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or the Issuing Lender hereunder
without the prior written consent of the Administrative Agent or the Issuing
Lender, as the case may be.
Anything in this Agreement to the contrary notwithstanding, no
waiver or modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Borrower to satisfy a
condition precedent to the making of Revolving Credit Loans shall be effective
against the Lenders of any Class unless the Required Lenders of such Class shall
have concurred with such waiver or modification, and no waiver or modification
of any provision of this Agreement or any other Loan Document that could
reasonably be expected to adversely affect the Lenders of any Class shall be
effective against the Lenders of such Class unless the Required Lenders of such
Class shall have concurred with such waiver or modification.
(c) Pledge Agreements. Neither the Pledge Agreement or the
Holdings Guaranty and Pledge Agreement, nor any provision thereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Credit Parties party thereto, and by the Administrative
Agent with the consent of the Required Lenders, provided that, without the prior
consent of each Lender, the Administrative Agent shall not (except as provided
herein or in the Pledge Agreement) release all or any substantial part of the
collateral or otherwise terminate all or any substantial part of the Liens under
the Pledge Agreement or the Holdings Guaranty and Pledge Agreement, agree to
additional obligations being secured by all or any substantial part of such
collateral (unless the Lien for such additional obligations shall be junior to
the Lien in favor of the other obligations secured by the Pledge Agreement or
the Holdings Guaranty and Pledge Agreement, in which event the Administrative
Agent may consent to such junior Lien provided that it obtains the consent of
the Required Lenders thereto),
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alter the relative priorities of the obligations entitled to the benefits of the
Liens created under the Pledge Agreement or the Holdings Guaranty and Pledge
Agreement with respect to all or any substantial part of such collateral, except
that no such consent shall be required, and the Administrative Agent is hereby
authorized, to release any Lien covering property that is the subject of either
a disposition of property permitted hereunder or a disposition to which the
Required Lenders have consented. Nothing in this Section 10.02(c) shall be
deemed to limit the provisions of Section 10.12.
SECTION 10.03. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Expenses. The Obligors jointly and severally agree to pay,
or reimburse the Administrative Agent or Lenders for paying, (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of Special Counsel, in
connection with the syndication of the credit facilities provided for herein,
the preparation of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all out-of-pocket expenses incurred by the Issuing Lender in
connection with the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder, (iii) all out-of-pocket expenses
incurred by the Administrative Agent, the Issuing Lender or any Lender,
including the fees, charges and disbursements of any counsel for such
Administrative Agent, Issuing Lender or Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents, including its rights under this Section 10.03, or in
connection with the Loans made or Letters of Credit issued hereunder, including
in connection with any workout, restructuring or negotiations in respect
thereof, and (iv) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Loan Documents or any other
document referred to herein or therein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Security Document or any other document referred to therein.
(b) Indemnification by Credit Parties. The Obligors jointly
and severally agree to indemnify the Administrative Agent, the Issuing Lender
and each Lender, and each Related Party of any of the foregoing Persons (each
such Person being called an "Indemnitee") against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, the other Loan Documents or any agreement or instrument contemplated
hereby, the performance by the parties hereto and thereto of their respective
obligations hereunder or thereunder or the consummation of the Transactions or
any other transactions contemplated hereby or thereby, (ii) any Loan or Letter
of Credit or the use of the proceeds therefrom (including any refusal by the
Issuing Lender to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by any
Credit Party
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or any of their subsidiaries, or any Environmental Liability related in any way
to any Credit Party or any of their subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) Indemnification by Lenders. To the extent that the
Obligors fail to pay any amount required to be paid by them to the
Administrative Agent under paragraph (a) or (b) of this Section 10.03, each
Lender severally agrees to pay to the Administrative Agent such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such. To the extent that the
Obligors fail to pay any amount required to be paid by them to the Issuing
Lender under paragraph (a) or (b) of this Section 10.03, each Revolving Credit
Lender severally agrees to pay to the Issuing Lender such Lender's Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Issuing
Lender in its capacity as such.
(d) Waiver of Indirect or Consequential Damages, Etc. To the
extent permitted by applicable law, none of the Obligors shall assert, and each
Obligor hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, the other Loan Documents or any agreement or instrument
contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) Payment upon Demand. All amounts due under this Section
10.03 shall be payable promptly after written demand therefor.
SECTION 10.04. SUCCESSORS AND ASSIGNS.
(a) Successors Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Obligor may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or
transfer by any Obligor without such consent shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the
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Issuing Lender and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that
(i) except in the case of an assignment to a Lender or an
Affiliate (or Approved Fund) of a Lender, the Administrative Agent
(and, in the case of an assignment of all or a portion of a Commitment
or any Lender's obligations in respect of its LC Exposure, the Issuing
Lender) and the Borrower must give their prior written consent to such
assignment (which consent in each case shall not be unreasonably
withheld);
(ii) except in the case of an assignment to a Lender or an
Affiliate (or Approved Fund) of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment, the amount of
the Commitment of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent,
(iii) each partial assignment of any Class of Commitments or
Loans shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations of such Class of Commitments
or Loans under this Agreement,
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire;
provided further that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event of Default under clause (a), (g) or
(h) of Article VIII has occurred and is continuing.
Upon acceptance and recording pursuant to paragraph (d) of
this Section 10.04, from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.13, 2.14, 2.15 and 10.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph (b)
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
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Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose vehicle (an "SPC")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to Section 2.01,
provided that (i) nothing herein shall constitute a commitment to make any Loan
by an SPC and (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by the Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any payment under this
Agreement for which a Lender would otherwise be liable, for so long as, and to
the extent, the related Granting Lender makes such payment. In furtherance of
the foregoing, each party hereto hereby agrees that, prior to the date that is
one year and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof arising out of any claim against such SPC
under this Agreement. In addition, notwithstanding anything to the contrary
contained in this Section 10.04, any SPC may with notice to, but without the
prior written consent of, the Borrower or the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to its Granting Lender or to any financial institutions providing
liquidity and/or credit support (if any) with respect to commercial paper issued
by such SPC to fund such Loans and such SPC may disclose on a confidential
basis, confidential information with respect to the Borrower and its
Subsidiaries to any rating agency, commercial paper dealer or provider of a
surety, guarantee or credit liquidity enhancement to such SPC.
(c) Register. The Administrative Agent, acting for this
purpose as an agent of the Borrower, shall maintain at one of its offices in The
City of New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Lender and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Lender and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section 10.04 and any written consent
to such assignment required by paragraph (b) of this Section 10.04, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information
Credit Agreement
97
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contained therein in the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(e) Participations. Any Lender may, without the consent of the
Borrower, the Administrative Agent or the Issuing Lender, sell participations to
one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Issuing Lender and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b), or the first proviso to
Section 10.02(c), that affects such Participant. Subject to paragraph (f) of
this Section 10.04, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section 10.04.
(f) Limitation on Rights of Participants. A Participant shall
not be entitled to receive any greater payment under Section 2.13 or 2.15 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.15 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.15(e) as though it were a
Lender.
(g) Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any such pledge or assignment to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such assignee for such Lender as a party hereto.
(h) No Assignments to Borrower and Affiliates. Anything in
this Section 10.04 to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to the Borrower or any
Affiliates or Subsidiaries of the Borrower without the prior consent of each
Lender.
SECTION 10.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Credit Parties herein and in the
other Loan Documents, and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement and the other Loan Documents,
shall be considered to have been relied upon by the other parties
Credit Agreement
98
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hereto and shall survive the execution and delivery of this Agreement and the
other Loan Documents and the making of any Loans and issuance of any Letters of
Credit, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent, the Issuing Lender or
any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect so long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement or the other Loan Documents is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.13, 2.14, 2.15 and 10.03 and Article IX
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any other Loan Document or any provision hereof
or thereof.
SECTION 10.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. SEVERABILITY. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Borrower or any Subsidiary Guarantor
against any of and all the obligations of the Borrower or any Subsidiary
Guarantor now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section 10.08 are in addition to any other rights and remedies
(including other rights of setoff) which such Lender may have.
Credit Agreement
99
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SECTION 10.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each party hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State court (or, to the extent permitted by law, in such Federal court).
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent, the Issuing
Lender or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement against any Obligor or its properties in the courts
of any jurisdiction.
(c) Waiver of Venue. Each party hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any court referred to in paragraph (b) of this
Section 10.09. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 10.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10.
Credit Agreement
100
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SECTION 10.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. RELEASE OF COLLATERAL AND GUARANTEES. The
Administrative Agent and the Lenders agree that if all of the capital stock of
any Subsidiary that is owned by the Borrower and its Subsidiaries is sold to any
Person as permitted by the terms of this Agreement and the Pledge Agreement, or
if any Subsidiary is merged or consolidated with or into any other Person as
permitted by the terms of this Agreement and such Subsidiary is not the
continuing or surviving corporation, or if any Restricted Subsidiary is
designated as an Unrestricted Subsidiary in accordance with the requirements of
Section 1.05, the Administrative Agent shall, upon request of the Borrower (and
upon the receipt by the Administrative Agent of such evidence as the
Administrative Agent or any Lender may reasonably request to establish that such
sale, merger, consolidation or designation is permitted by the terms of this
Agreement), terminate the Guarantee of such Subsidiary under Article III and
authorize the Administrative Agent to release the Lien created by the Pledge
Agreement on any capital stock of such Subsidiary (it being understood that, in
the case of any release of the Guarantee or capital stock of a Restricted
Subsidiary that is to be designated as an Unrestricted Subsidiary, the
Administrative Agent may condition the effectiveness of such release upon the
delivery to the respective trustees under the Senior Subordinated Notes
Indentures and New Senior Subordinated Notes Indentures (or agreement relating
to any Refunding Indebtedness) of the documents required pursuant thereto to
effect the release of such Restricted Subsidiary from its Guarantee thereunder).
SECTION 10.13. SUCCESSOR FACILITY. This Agreement is intended
to be a successor to the Existing Credit Agreement and to replace and refinance
the OCI Credit Agreement and to constitute (i) the "Senior Credit Facility"
under and for all purposes of each of the Senior Subordinated Notes Indentures
and (ii) the "New Credit Facility" under and for all purposes of the OCI
Indenture.
SECTION 10.14. EXISTING CREDIT AGREEMENT. Anything in this
Agreement to the contrary notwithstanding, the provisions of Article VII shall
not be construed to prohibit any action that may not, under Section 7.08 of the
Existing Credit Agreement, be prohibited without the consent of the "Required
Lenders" thereunder, it being understood that nothing in this Section 10.14
shall be deemed to affect the requirement set forth in Section 5.03(v) that, as
a condition to the initial extension of credit hereunder, no Default have
occurred and be continuing.
Credit Agreement
101
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
XXXXX MEDIA CORP. (formally known
as Xxxxx Advertising Company)
By: /s/ Xxxxx Xxxxx
------------------------------------------
Title: Chief Financial Officer
Credit Agreement
102
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SUBSIDIARY GUARANTORS
INTERSTATE LOGOS, INC.
THE LAMAR CORPORATION
XXXXX ADVERTISING OF MOBILE, INC.
XXXXX ADVERTISING OF COLORADO
SPRINGS, INC.
XXXXX ADVERTISING OF SOUTH
MISSISSIPPI, INC.
XXXXX ADVERTISING OF XXXXXXX, INC.
LAMAR TEXAS GENERAL PARTNER, INC.
XXXXX ADVERTISING OF SOUTH
GEORGIA, INC.
TLC PROPERTIES, INC.
TLC PROPERTIES II, INC.
LAMAR PENSACOLA TRANSIT, INC.
XXXXX ADVERTISING OF
YOUNGSTOWN, INC.
NEBRASKA LOGOS, INC.
OKLAHOMA LOGO SIGNS, INC.
MISSOURI LOGOS, INC.
OHIO LOGOS, INC.
UTAH LOGOS, INC.
TEXAS LOGOS, INC.
MISSISSIPPI LOGOS, INC.
GEORGIA LOGOS, INC.
SOUTH CAROLINA LOGOS, INC.
VIRGINIA LOGOS, INC.
MINNESOTA LOGOS, INC.
MICHIGAN LOGOS, INC.
NEW JERSEY LOGOS, INC.
FLORIDA LOGOS, INC.
KENTUCKY LOGOS, INC.
NEVADA LOGOS, INC.
TENNESSEE LOGOS, INC.
KANSAS LOGOS, INC.
COLORADO LOGOS, INC.
NEW MEXICO LOGOS, INC.
XXXXX ADVERTISING OF HUNTINGTON-
BRIDGEPORT, INC.
Credit Agreement
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XXXXX ADVERTISING OF PENN, INC.
XXXXX ADVERTISING OF
MISSOURI, INC.
XXXXX ADVERTISING OF
MICHIGAN, INC.
XXXXX ELECTRICAL, INC.
XXXXX ADVERTISING OF
SOUTH DAKOTA, INC.
XXXXX ADVERTISING OF
WEST VIRGINIA, INC.
XXXXX ADVERTISING OF
ASHLAND, INC.
AMERICAN SIGNS, INC.
XXXXX OCI NORTH CORPORATION
XXXXX OCI SOUTH CORPORATION
XXXXX ADVERTISING OF
GREENVILLE, INC.
XXXXX XXXXXXXX, INC.
XXXXX ADVERTISING OF
KENTUCKY, INC.
XXXXX ADVERTISING OF XXXXXX, INC.
XXXXX ADVERTISING OF JOPLIN, INC.
By: /s/ Xxxxx Xxxxx
------------------------------------
Title: Chief Financial Officer
Credit Agreement
104
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XXXXX TEXAS LIMITED PARTNERSHIP
By Lamar Texas General Partner, Inc.
its general partner
By: /s/ Xxxxx Xxxxx
------------------------------------
Title: Chief Financial Officer
LAMAR TENNESSEE, L.L.C.
By The Lamar Corporation, its manager
By: /s/ Xxxxx Xxxxx
------------------------------------
Title: Chief Financial Officer
LAMAR AIR, L.L.C.
By The Lamar Corporation, its manager
By: /s/ Xxxxx Xxxxx
------------------------------------
Title: Chief Financial Officer
TLC PROPERTIES, L.L.C.
By TLC Properties, Inc., its manager
By: /s/ Xxxxx Xxxxx
------------------------------------
Title: Chief Financial Officer
Credit Agreement
105
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LENDERS
THE CHASE MANHATTAN BANK,
as Lender and Administrative Agent
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Credit Agreement
106
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FIRST UNION NATIONAL BANK,
as Lender and Co-Documentation Agent
By /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Credit Agreement
107
- 102 -
FLEET NATIONAL BANK, as
Lender and Co-Documentation Agent
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Credit Agreement
108
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THE FIRST NATIONAL BANK OF CHICAGO,
as Lender and Co-Documentation Agent
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
Credit Agreement
109
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ABN AMRO BANK N.V.
By /s/ Xxx Xxxxxxxxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxxxxxxxx
Title: Vice President
By /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Credit Agreement
110
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BANK OF MONTREAL,
CHICAGO BRANCH
By /s/ Xxx Xxxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxxx
Title: Director
Credit Agreement
111
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BANKERS TRUST COMPANY
By /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Principal
Credit Agreement
112
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COMPAGNIE FINANCIERE DE
CIC ET DE L'UNION EUROPEENE
By /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
By /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: First Vice President
Credit Agreement
113
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CREDIT LYONNAIS,
NEW YORK BRANCH
By /s/ Pascal Poupelle
------------------------------------
Name: Pascal Poupelle
Title: Executive Vice President
Credit Agreement
114
- 109 -
MITSUBISHI TRUST & BANKING
CORPORATION
By /s/ Xxxxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Deputy General Manager
Credit Agreement
115
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SUNTRUST BANK, CENTRAL
FLORIDA N.A.
By /s/ W. Xxxxx Xxxxxx
------------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
Credit Agreement
000
- 000 -
XXXXX XXXX XX XXXXXXXXXX, N.A.
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Credit Agreement
000
- 000 -
XXX XXXX XX XXX XXXX
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
000
- 000 -
XXX XXXX XX XXXX XXXXXX
By /s/ Xxxx X. Xxxxxxxxxxxxx
----------------------------------
Name: P.A. Xxxxxxxxxxxxx
Title: Authorized Signatory
Credit Agreement
000
- 000 -
XXXXXXXX XXXX XX, XXX XXXX
AND GRAND CAYMAN BRANCHES
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
Credit Agreement
000
- 000 -
XXXX XXXXXXX CREDITANSTALT
CORPORATE FINANCE, INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Associate
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Credit Agreement
121
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KEY CORPORATE CAPITAL INC.
By /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
000
- 000 -
XXXX XX XXXXXXX, N.A.
By /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
Credit Agreement
123
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BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH
By /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Credit Agreement
124
- 119 -
CIBC INC.
By /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Director
CIBC World Markets Corp. As Agent
Credit Agreement
125
- 120 -
THE FUJI BANK, LIMITED
By /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
Credit Agreement
126
- 121 -
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By /s/ Xxxx Xxxxx
-----------------------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President, Houston Office
Credit Agreement
000
- 000 -
XXXXXX BANK, N.A.
By /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Lending Officer
Credit Agreement
128
- 123 -
MERCANTILE BANK NATIONAL
ASSOCIATION
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
129
- 124 -
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Credit Agreement
130
- 125 -
US BANK NATIONAL ASSOCIATION
By /s/ Xxx X. Xxxxxx
------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
Credit Agreement
131
- 000 -
XXXXXXXXXX XXXX-XXX
XXXXXXXXXXX XX, XXX XXXX BRANCH
By /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
By /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate Director
Credit Agreement
132
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NATIONAL CITY BANK
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Officer
Credit Agreement
133
- 128 -
ALLFIRST BANK
By /s/ Xxxxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
Credit Agreement
000
- 000 -
XXXX XX XXXXXX
By /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Credit Agreement
135
- 130 -
THE DAI-ICHI KANGYO BANK LTD.
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Credit Agreement
136
- 131 -
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN
By /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: First Vice President
By /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
Credit Agreement
137
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MICHIGAN NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Relationship Manager
Credit Agreement
000
- 000 -
XXXXX XXXXXX BANK AND TRUST
COMPANY
By /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
139
- 134 -
FIRSTRUST BANK
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Credit Agreement
140
- 135 -
XXXXXXX BANK
By /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Credit Agreement
141
- 136 -
FRANKLIN FLOATING RATE TRUST
By /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
Credit Agreement
142
- 137 -
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors LLC
as Collateral Manager
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Credit Agreement
143
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BALANCED HIGH-YIELD FUND II LTD.
By: BHF (USA) Capital Corporation
as Attorney-in Fact
By /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Associate
By /s/ Xxxxx Xx
--------------------------------------
Name: Xxxxx Xx
Title: Associate
Credit Agreement
144
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GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ W. Xxxxxx XxXxxxxxx
-------------------------------------
Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
Credit Agreement
145
- 140 -
KZH-SOLEIL-2 LLC
By /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
Credit Agreement
146
- 141 -
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
Credit Agreement
147
- 142 -
PPM AMERICA, INC., as Attorney-in-Fact,
on behalf on Xxxxxxx National Life Insurance
Company
By /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
Credit Agreement
148
- 143 -
SRF TRADING, INC.
By /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
000
- 000 -
XXXXXXX XXXXXXXX (XXXXX), INC.
By /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Credit Xxxxxxxxx
000
- 000 -
XXX XXXXXXXXX LLC
By /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
Credit Agreement
151
- 146 -
PARIBAS CAPITAL FUNDING LLC
By /s/ X.X. Xxxxxxxxx
-----------------------------------
Name: X.X. Xxxxxxxxx
Title: Director
Credit Agreement
152
- 147 -
TYLER TRADING, INC.
By /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
153
- 148 -
KZH CRESCENT-2 LLC
By /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
Credit Agreement
154
- 149 -
XXXXXX FLOATING RATE FUND
By /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: S.V.P.
Credit Agreement
155
- 150 -
PINEHURST TRADING, INC.
By /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
156
- 151 -
SEQUILS I, LTD.
By: TCW Advisors, Inc.
as its Collateral Manager
By /s/ Xxxx X. Gold
------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
By /s/ Xxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxx Xxxx
Title: Assistant Vice President
Credit Agreement
157
- 152 -
KZH CRESCENT LLC
By /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
Credit Agreement
158
- 153 -
KZH CYPRESS TREE-1 LLC
By /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
Credit Agreement
159
- 154 -
CYPRESSTREE INVESTMENT FUND LLC
By: CypressTree Investment Management Company,
Inc. its Managing Member
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
itle: Principal
Credit Agreement
160
- 155 -
CYPRESSTREE INVESTMENT MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance Company
as Portfolio Manager
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
Credit Agreement
161
- 156 -
NORTH AMERICAN SENIOR FLOATING RATE
FUND
By: CypressTree Investment Management
Company, Inc.
as Portfolio Manager
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
Credit Agreement
162
- 157 -
CYPRESSTREE SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc.
as Portfolio Manager
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
Credit Agreement
163
Schedule 2.01
REVOLVING TRANCHE A TRANCHE B
CREDIT TERM LOAN TERM LOAN
NAME OF INSTITUTION COMMITMENTS COMMITMENTS COMMITMENTS TOTAL
--------------------------------------------- ----------------- ----------------- ------------------ ------------------
The Chase Manhattan Bank $ 18,484,375 $ 23,765,625 $ 101,750,000 $ 144,000,000
First Union National Bank 17,500,000 22,500,000 2,000,000 42,000,000
Fleet National Bank 17,500,000 22,500,000 2,000,000 42,000,000
First National Bank of Chicago 17,500,000 22,500,000 -- 40,000,000
ABN Amro Bank N.V. 10,937,500 14,062,500 2,000,000 27,000,000
Bank of Montreal, Chicago Branch 10,937,500 14,062,500 2,000,000 27,000,000
Bankers Trust Company 10,937,500 14,062,500 2,000,000 27,000,000
Compagnie Financiere de CIC et de 10,937,500 14,062,500 2,000,000 27,000,000
L'Union Europeene
Credit Lyonnais New York Branch 10,937,500 14,062,500 2,000,000 27,000,000
Mitsubishi Trust & Banking Corporation 10,937,500 14,062,500 2,000,000 27,000,000
SunTrust Bank, Central Florida N.A. 10,937,500 14,062,500 2,000,000 27,000,000
Union Bank of California, N.A. 10,937,500 14,062,500 2,000,000 27,000,000
The Bank of New York 10,937,500 14,062,500 -- 25,000,000
The Bank of Nova Scotia 10,937,500 14,062,500 -- 25,000,000
Dresdner Bank AG, New York and 10,937,500 14,062,500 -- 25,000,000
Grand Cayman Branches
Bank Austria Creditanstalt 8,859,375 11,390,625 2,000,000 22,250,000
Corporate Finance, Inc.
Key Corporate Capital Inc. 8,859,375 11,390,625 1,000,000 21,250,000
Bank of America, N.A. 8,859,375 11,390,625 -- 20,250,000
Banque Nationale de Paris, 8,859,375 11,390,625 -- 20,250,000
New York Branch
CIBC Inc. 8,859,375 11,390,625 -- 20,250,000
The Fuji Bank, Limited 8,859,375 11,390,625 -- 20,250,000
The Industrial Bank of Japan, Limited, 8,859,375 11,390,625 -- 20,250,000
New York Branch
Mellon Bank, N.A. 8,859,375 11,390,625 -- 20,250,000
Mercantile Bank National Association 8,859,375 11,390,625 -- 20,250,000
PNC Bank, National Association 8,859,375 11,390,625 -- 20,250,000
US Bank National Association 8,859,375 11,390,625 -- 20,250,000
Bayerische Hypo-und Vereinsbank AG 6,562,500 8,437,500 1,000,000 16,000,000
New York Branch
National City Bank 6,562,500 8,437,500 1,000,000 16,000,000
Allfirst Bank 6,562,500 8,437,500 -- 15,000,000
Bank of Hawaii 6,562,500 8,437,500 -- 15,000,000
The Dai-Ichi Kangyo Bank Ltd. 6,562,500 8,437,500 -- 15,000,000
Erste Bank der Oesterreichischen 6,562,500 8,437,500 -- 15,000,000
Sparkassen
Michigan National Bank 6,562,500 8,437,500 -- 15,000,000
State Street Bank and Trust Company 6,562,500 8,437,500 -- 15,000,000
Firstrust Bank 4,375,000 5,625,000 -- 10,000,000
Xxxxxxx Bank 4,375,000 5,625,000 -- 10,000,000
Schedule 2.01 to Credit Agreement
164
-2-
Franklin Floating Rate Trust -- -- 6,000,000 6,000,000
Archimedes Funding, L.L.C. -- -- 5,000,000 5,000,000
Balanced High-Yield Fund II Ltd. -- -- 5,000,000 5,000,000
General Electric Capital Corporation -- -- 5,000,000 5,000,000
KZH - Soleil-2 LLC -- -- 5,000,000 5,000,000
Metropolitan Life Insurance Company -- -- 5,000,000 5,000,000
PPM America, Inc. -- -- 5,000,000 5,000,000
SRF Trading, Inc. -- -- 5,000,000 5,000,000
Toronto Dominion (Texas), Inc. -- -- 5,000,000 5,000,000
KZH Waterside LLC -- -- 4,000,000 4,000,000
Paribas Capital Funding LLC -- -- 4,000,000 4,000,000
Tyler Trading, Inc. -- -- 4,000,000 4,000,000
KZH Crescent-2 LLC -- -- 2,500,000 2,500,000
Xxxxxx Floating Rate Fund -- -- 2,000,000 2,000,000
Pinehurst Trading, Inc. -- -- 2,000,000 2,000,000
Sequils I, Ltd. -- -- 2,000,000 2,000,000
KZH Crescent LLC -- -- 1,500,000 1,500,000
KZH Cypress Tree-1 LLC -- -- 1,500,000 1,500,000
Cypresstree Investment Fund LLC -- -- 1,000,000 1,000,000
Cypresstree Investment Management -- -- 1,000,000 1,000,000
Company, Inc.
North American Senior Floating Rate -- -- 1,000,000 1,000,000
Fund
Cypresstree Senior Floating Rate Fund -- -- 750,000 750,000
------------ ------------ ------------ --------------
TOTAL FUND COMMITMENTS $350,000,000 $450,000,000 $200,000,000 $1,000,000,000
Schedule 2.01 to Credit Agreement
165
Schedule 4.06
Disclosed Matters
Section 4.06(a). None.
Section 4.06(b). None.
Schedule 4.06 to Credit Agreement
166
Schedule 4.11
Supplemental Disclosure
1. The Justice Department of the United States will require the divestiture of
some of the assets of Chancellor incident to the closing of the Chancellor
Acquisition. Negotiations are currently underway with representatives of the
Justice Department to determine the specific areas of overlap of Chancellor
assets with assets of Borrower and its Restricted Subsidiaries. It is unknown at
this time the extent and value of the assets that might be subject to
divestiture. The possible purchasers are also unknown.
2. Holdings is contemplating the issuance of the Senior Notes pursuant to the
Holdings Indenture. The net proceeds of that offering are to be invested in
Borrower and used by Borrower to prepay amounts due under the Amended and
Restated Credit agreement between Borrower and The Chase Manhattan Bank, as
Administrative Agent, dated July 16, 1998.
Schedule 4.11 to Credit Agreement
167
Schedule 4.13
Material Agreements and Liens
Material Agreements
PRINCIPAL
BALANCES
DESCRIPTION COLLATERAL 4/30/99
----------- ---------- -----------
8% SERIES A UNSECURED SUBORDINATED DISCOUNT DEBENTURES DUE NONE $ 1,273,134
2001
8% UNSECURED SUBORDINATED NOTES DUE 2006 NONE 14,666,665
11% SENIOR SECURED NOTES DUE MAY 15, 2003 PURSUANT TO NONE 1,172,000
INDENTURE DATED AS OF MAY 15, 0000
XXXXX XXXXXX BANK AND TRUST COMPANY, AS TRUSTEE NONE 255,000,000
DATED AS OF SEPTEMBER 25, 1997
9.625% SENIOR SUBORDINATED NOTES DUE 0000
XXXXX XXXXXX BANK AND TRUST COMPANY, AS TRUSTEE NONE 198,816,060
DATED AS OF SEPTEMBER 25, 1997
8.625% SENIOR SUBORDINATED NOTES DUE 2007 (NET OF
UNAMORTIZED DISCOUNT)
FIRST UNION NATIONAL BANK, AS TRUSTEE, DATED AUGUST 15, NONE 103,949,000
1997,
9 1/4% SENIOR SUBORDINATED NOTES DUE 2007
THE CHASE MANHATTAN BANK AS ADMINISTRATIVE AGENT, CREDIT EQUITY INTERESTS OF
AGREEMENT DATED JULY 16, 1998 CERTAIN RESTRICTED
COMMITMENT SUBSIDIARIES
TERM FACILITY UTILIZATION 400,000,000
REVOLVER UTILIZATION 150,000,000
INCREMENTAL FACILITY UTILIZATION 20,000,000
100,000,000
Schedule 4.13 to Credit Agreement
168
- 2 -
AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
BY AND BETWEEN XXXXX MEDIA
CORP. (FORMERLY XXXXX
ADVERTISING COMPANY) AND
CHANCELLOR MEDIA OF LOS ANGELES
AND CHANCELLOR MEZZANINE
HOLDINGS CORPORATION, DATED AS
OF JUNE 12, 1999
AMENDED AND RESTATED VOTING
AGREEMENT BY AND BETWEEN XXXXX
MEDIA CORPORATION (FORMERLY
XXXXX ADVERTISING COMPANY),
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES, CHANCELLOR
MEZZANINE HOLDINGS CORPORATION,
AND XXXXXX FAMILY LIMITED
PARTNERSHIP, DATED AS OF JUNE 12,
1999
LIMITED WAIVER AND CONSENT BY
AND BETWEEN XXXXX ADVERTISING
COMPANY, XXXXX NEW HOLDING CO.,
CHANCELLOR MEZZANINE HOLDINGS
CORPORATION AND CHANCELLOR
MEDIA CORPORATION OF LOS
ANGELES, DATED AS OF JULY 19, 1999
Liens
See Schedule 7.02.
Schedule 4.13 to Credit Agreement
169
Schedule 4.14
Subsidiaries of Xxxxx Media Corp. ("LMC")
1. Interstate Logos, Inc. ("ILI")
(i) Delaware
(ii) LMC and TLC
(iii) 66 2/3% common stock (LMC)
33 1/3% common stock (TLC)
(iv) Restricted Subsidiary
2. The Lamar Corporation ("TLC")
(i) Louisiana
(ii) LMC
(iii) 100% common stock
(iv) Restricted Subsidiary
3. Xxxxx Advertising of Mobile, Inc.
(i) Alabama
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
4. Xxxxx Advertising of Colorado Springs, Inc.
(i) Colorado
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
5. Xxxxx Advertising of South Mississippi, Inc.
(i) Mississippi
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
Schedule 4.14 to Credit Agreement
170
- 2 -
6. Xxxxx Advertising of Xxxxxxx, Inc.
(i) Mississippi
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
7. Lamar Texas General Partner, Inc. ("TXGP")
(i) Louisiana
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
8. Xxxxx Advertising of South Georgia, Inc.
(i) Georgia
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
9. TLC Properties, Inc.
(i) Louisiana
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
10. TLC Properties II, Inc.
(i) Texas
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
11. Lamar Pensacola Transit, Inc.
(i) Florida
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
Schedule 4.14 to Credit Agreement
171
- 3 -
12. Xxxxx Advertising of Youngstown, Inc.
(i) Delaware
(ii) TLC
(iii) 100% common
(iv) Restricted Subsidiary
13. Nebraska Logos, Inc.
(i) Nebraska
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
14. Oklahoma Logo Signs, Inc.
(i) Oklahoma
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
15. Missouri Logos, Inc. ("MLI")
(i) Missouri
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
16. Ohio Logos, Inc.
(i) Ohio
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
17. Utah Logos, Inc.
(i) Utah
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
Schedule 4.14 to Credit Agreement
172
- 4 -
18. Texas Logos, Inc.
(i) Texas
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
19. Mississippi Logos, Inc.
(i) Mississippi
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
20. Georgia Logos, Inc.
(i) Georgia
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
21. South Carolina Logos, Inc.
(i) South Carolina
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
22. Virginia Logos, Inc.
(i) Virginia
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
23. Minnesota Logos, Inc. ("MNLI")
(i) Minnesota
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
Schedule 4.14 to Credit Agreement
173
- 5 -
24. Michigan Logos, Inc.
(i) Michigan
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
25. New Jersey Logos, Inc.
(i) New Jersey
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
26. Florida Logos, Inc.
(i) Florida
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
27. Kentucky Logos, Inc.
(i) Kentucky
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
28. Nevada Logos, Inc.
(i) Nevada
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
29. Tennessee Logos, Inc.
(i) Tennessee
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
Schedule 4.14 to Credit Agreement
174
- 6 -
30. Kansas Logos, Inc.
(i) Kansas
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
31. Colorado Logos, Inc.
(i) Colorado
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
32. Xxxxx Advertising of Huntington-Bridgeport, Inc.
(i) West Virginia
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
33. Xxxxx Advertising of Penn, Inc.
(i) Delaware
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
34. Xxxxx Advertising of Missouri, Inc.
(i) Missouri
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
35. Xxxxx Advertising of Michigan, Inc.
(i) Michigan
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
Schedule 4.14 to Credit Agreement
175
- 7 -
36. Lamar Electrical, Inc.
(i) Louisiana
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
37. Xxxxx Advertising of South Dakota, Inc.
(i) South Dakota
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
38. Xxxxx Advertising of West Virginia, Inc.
(i) West Virginia
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
39. Xxxxx Advertising of Ashland, Inc.
(i) Kentucky
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
40. American Signs, Inc.
(i) Washington
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
41. Lamar OCI North Corporation
(i) Delaware
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
Schedule 4.14 to Credit Agreement
176
- 8 -
42. Lamar OCI South Corporation
(i) Mississippi
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
43. Xxxxx Advertising of Greenville, Inc.
(i) Mississippi
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
44. Xxxxx Xxxxxxxx, Inc.
(i) Missouri
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
45. Xxxxx Advertising of Kentucky, Inc.
(i) Kentucky
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
46. Xxxxx Advertising of Xxxxxx, Inc.
(i) Tennessee
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
47. Missouri Logos, a Partnership
(i) Missouri
(ii) MLI and Missouri Logo Sign Company
(iii) 66 2/3% of the general partnership interest (MLI)
33 1/3% of general partnership interest (Missouri Logo Sign
Company)
(iv) Restricted Subsidiary
Schedule 4.14 to Credit Agreement
177
- 9 -
48. Lamar Texas Limited Partnership
(i) Louisiana
(ii) TLC and TXGP
(iii) 99% of the partnership interest and Limited Partner (TLC)
1% of the partnership interest and General Partner (TXGP)
(iv) Restricted Subsidiary
49. Lamar Tennessee, L.L.C.
(i) Tennessee
(ii) TLC
(iii) 100% of the equity interest (TLC)
(iv) Restricted Subsidiary
50. Lamar Air, L.L.C.
(i) Louisiana
(ii) TLC and ILI
(iii) 90% of the equity interest (TLC)
10% of the equity interest (ILI)
(iv) Restricted Subsidiary
51. TLC Properties, L.L.C.
(i) Louisiana
(ii) TLC Properties, Inc.
(iii) 100% membership interest
(iv) Restricted Subsidiary
52. Canadian TODS Limited
(i) Nova Scotia, Canada
(ii) ILI
(iii) 100% Common Stock
(iv) Restricted Subsidiary
53. New Mexico Logos, Inc.
(i) New Mexico
(ii) ILI
(iii) 100% common stock
(iv) Restricted Subsidiary
Schedule 4.14 to Credit Agreement
178
- 10 -
54. Xxxxx Advertising of Joplin, Inc.
(i) Missouri
(ii) TLC
(iii) 100% common stock
(iv) Restricted Subsidiary
INACTIVE SUBSIDIARIES
1. Lamar PCS, Inc.
(i) Delaware
(ii) The Lamar Corporation
(iii) 100% common stock
(iv) Inactive Subsidiary
2. Xxxxx Advertising of California, Inc.
(i) Delaware
(ii) LMC
(iii) 100% common stock
(iv) Inactive Subsidiary
SUBSIDIARIES TO BE ACQUIRED IN THE CHANCELLOR ACQUISITION
1. Chancellor Media Outdoor Corporation
(i) Delaware
(ii) Chancellor Media Corporation of Los Angeles (Seller)
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
2. Chancellor Media Nevada Sign Corporation
(i) Delaware
(ii) Chancellor Media Outdoor Corporation
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
Schedule 4.14 to Credit Agreement
179
- 11 -
3. Chancellor Media MW Sign Corporation
(i) Delaware
(ii) Chancellor Media Outdoor Corporation
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
4. Chancellor Media Xxxxxx Corporation
(i) Delaware
(ii) Chancellor Media Outdoor Corporation
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
5. Western Poster Services, Inc.
(i) Texas
(ii) Chancellor Media Outdoor Corporation
Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxx
(iii) 73.4% of the common stock (Chancellor Media Outdoor
Corporation)
23.3% of the common stock (Xxxxxxx Xxxxxx)
3.3% of the common stock (Xxxxxx Xxxxxxxx)
(iv) Anticipated Restricted Subsidiary
6. Revolution Outdoor Advertising, Inc.
(i) Florida
(ii) Chancellor Media Outdoor Corporation
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
7. Chancellor Media Whiteco Outdoor Corporation
(i) Delaware
(ii) Chancellor Mezzanine Holdings Corporation
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
8. Triumph Outdoor Holdings, L.L.C.
(i) Delaware
(ii) Chancellor Media Outdoor Corporation
(iii) 100% of the equity interest
(iv) Anticipated Restricted Subsidiary
Schedule 4.14 to Credit Agreement
180
- 12 -
9. Xxxxxx Media, L.P.
(i) California
(ii) Chancellor Media Nevada Sign Corporation
Chancellor Media Outdoor Corporation
Chancellor Media MW Sign Corporation
Chancellor Media MW Sign Corporation
(iii) 17.07% of the limited partnership interest (Chancellor Media
Nevada Sign Corporation
81.36% of the limited partnership interest (Chancellor Media
Outdoor Corporation
0.55% of general partnership interest (Chancellor Media MW
Sign Corporation)
1.02% of the limited partnership interest (Chancellor Media MW
Sign Corporation)
100% common stock
(iv) Anticipated Restricted Subsidiary
10. Xxxxxxx Company Incorporated
(i) Virginia
(ii) Xxxxxx Media, L.P.
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
11. Lindsay Outdoor, Inc.
(i) California
(ii) Chancellor Media Xxxxxx Corporation
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
12. Scenic Outdoor Marketing & Consulting, Inc.
(i) California
(ii) Chancellor Media Xxxxxx Corporation
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
13. Xxxxxx Development Corp.
(i) Florida
(ii) Revolution Outdoor Advertising, Inc.
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
Schedule 4.14 to Credit Agreement
181
- 13 -
14. Xxxxxxx Development Company
(i) Florida
(ii) Revolution Outdoor Advertising, Inc.
(iii) 100% common stock
(iv) Anticipated Restricted Subsidiary
15. Outdoor Promotions West, L.L.C.
(i) Delaware
(ii) Triumph Outdoor Holdings, L.L.C.
(iii) 100% common of the equity interest
(iv) Anticipated Restricted Subsidiary
16. Transit America Las Vegas, L.L.C.
(i) Delaware
(ii) Triumph Outdoor Holdings, L.L.C.
(iii) 100% of the equity interest
(iv) Anticipated Restricted Subsidiary
17. Triumph Outdoor Louisiana, LLC
(i) Delaware
(ii) Triumph Outdoor Holdings, L.L.C.
(iii) 100% of the equity interest
(iv) Anticipated Restricted Subsidiary
18. Triumph Outdoor Rhode Island, LLC
(i) Delaware
(ii) Triumph Outdoor Holdings, L.L.C.
(iii) 100% of the equity interest
(iv) Anticipated Restricted Subsidiary
Schedule 4.14 to Credit Agreement
182
Schedule 7.01
Existing Indebtedness
PRINCIPAL
DESCRIPTION BALANCES
----------- 4/30/99
(By Maker and Holder) --------
XXXXX ADVERTISING OF MOBILE, INC
Small Business Administration $ 14,574
Small Business Administration
Xxxxxx Acquisition 155,089
X. X. Xxxxxxx non-compete 351,822
First Community Bank
Outdoor East Acquisition 5,740
THE LAMAR CORPORATION
Xxx Xxxx 15,864
Woodlawn Land Company, Inc. 220,663
Southeastern Displays, Inc. 6,977
Xxxxx Xxxxxxxxx 219,858
T & L Management Outdoor Advertising, Inc. 230,201
Xxxx Outdoor Advertising 75,275
Xxxxx and Xxx Xxxxxxxxx 50,000
Imperial Outdoor Advertising 1,980,958
LAMAR TEXAS LIMITED PARTNERSHIP
Small Business Administration 38,902
Small Business Administration 192,959
TLC PROPERTIES, INC
Xxxx Xxxxxxxxxx 24,881
Xxxx Xxxxxxxxxx 25,678
Peach Tree Realty 64,424
Schedule 7.01 to Credit Agreement
183
- 2 -
PRINCIPAL
DESCRIPTION BALANCES
----------- 4/30/99
(By Maker and Holder) --------
XXXXX ADVERTISING OF XXXXXXX, INC
Small Business Administration 22,430
XXXXX TENNESSEE LIMITED PARTNERSHIP II
Xxxx Outdoor, Inc. 100,000
Dominion Signs, Incorporated 140,030
INTERSTATE LOGOS, INC
Travelsigns Non-Competition Agreement 168,750
XXXXX ADVERTISING OF MISSOURI, INC
Xxxxx Xxxxxxx 300,000
XXXXX MEDIA CORP
Xxx Xxxxxxx 26,197
Xxxxxxx X. Xxxx 84,000
Xxxxxx X. Xxxx 126,000
First Interstate Bank
Northwest Acquisition 172,716
Xxxx Marketing, Inc. 537,522
Xxxxx Xxxxxxxxxxx - Northwest Acquisition 100,000
Xxxxxxx X. Xxxxxxx 300,000
Brentwood Development 766,375
Esplanade, L.L.C 75,257
Travelers Property Casualty Insurance Company 251,963
8% Series A Unsecured 1,273,134
Subordinated Discount
Debentures Due 2001
Schedule 7.01 to Credit Agreement
184
- 3 -
PRINCIPAL
DESCRIPTION BALANCES
----------- 4/30/99
(By Maker and Holder) --------
8% Unsecured Subordinated Notes 14,666,665
Due 2006
11% Senior Secured Notes Due May 1,172,000
15, 2003 Pursuant to Indenture
Dated As of May 15, 0000
Xxxxx Xxxxxx Bank and Trust 255,000,000
Company, As Trustee
Dated As Of September 25, 1997
9.625% Senior Subordinated Notes
Due 0000
Xxxxx Xxxxxx Bank and Trust 198,816,060
Company, As Trustee
Dated As Of September 25, 1997
8.625% Senior Subordinated Notes
Due 2007 (Net Of Unamortized Discount)
First Union National Bank, As 103,949,000
Trustee, Dated August 15, 1997
9 1/4% Senior Subordinated Notes
Due 2007
The Chase Manhattan Bank As
Administrative Agent, Credit Agreement
Dated July 16, 1998
Commitment $400,000,000
Term Facility Utilization 150,000,000
Revolver Utilization 20,000,000
Incremental Facility Utilization 100,000,000
Schedule 7.01 to Credit Agreement
185
- 4 -
PRINCIPAL
DESCRIPTION BALANCES
----------- 4/30/99
(By Maker and Holder) --------
XXXXX ADVERTISING OF PENN, INC
X. X. Xxxxx, Xx 1,600,000
XXXXX ADVERTISING OF WEST VIRGINIA, INC
Xxx Xxxxxx 76,000
Xxxxx Xxxxxx 4.000
Schedule 7.01 to Credit Agreement
186
Schedule 7.03(a)(iii)
Existing Guarantees
ITEM DESCRIPTION
---- -----------
Leases and Advertising Contracts Site and Operating Leases and
Advertising Sales Contracts
executed by the Company and its
Subsidiaries in the ordinary course
of its operations of former
Subsidiaries and former Affiliates.
Schedule 7.03 to Credit Agreement
187
Schedule 7.07
Certain Existing Affiliate Transactions
Sign Acquisition Corporation acquired all of the issued and outstanding
stock of Interstate Highway Sign Corp., which company makes aluminum sign faces
purchased by Subsidiaries of Interstate Logos, Inc., a Subsidiary of Borrower.
Seventy-six and 8/10ths (76.8%) percent of the stock of Sign Acquisition
Corporation is held by Xxxxx X. Xxxxxx, Xx. as voting trustee. Xxxxx X. Xxxxxx,
Xx. is the general partner of the Xxxxxx Family Limited Partnership, which
partnership owns voting control of Holdings. Holdings owns all of the issued and
outstanding stock of Borrower.
Schedule 7.08 to Credit Agreement
188
Schedule 7.08
Existing Restrictions
1. Restrictions contained in the Missouri Logos, a General Partnership,
Partnership Agreement.
2. Restrictions contained in Small Business Administration Loan Documents.
Schedule 7.08 to Credit Agreement
