EXHIBIT 10.5
DEFICIT CAPITAL CONTRIBUTION AGREEMENT
This agreement is made as of the 21st of May, 1999 by and between AOA
Holding LLC, a Minnesota limited liability company ("Holding") and Xxxxxxx Xxxxx
("Xxxxx").
WITNESSETH
WHEREAS, Xxxxx Outdoor Advertising Limited Partnership (the "Operating
Company") and Xxxxx Outdoor Advertising, Inc. ("AOA Inc") are issuers of $105
million in original aggregate principal amount of 10-3/4% senior notes due 2006
(the "Existing Bonds");
WHEREAS, in connection with issuance of the Existing Bonds, the Operating
Company and AOA Inc have entered into various agreements including, without
limitation, a securities purchase agreement with CIBC/Wood Gundy Securities Corp
and an indenture with United States Trust Company of New York as trustee
(jointly, together with any other agreements or undertakings made in connection
with the issuance of the Existing Bonds, the "Existing Ancillary Agreements");
WHEREAS, Xxxxx is the owner of all of the issued and outstanding shares of
AOA Inc;
WHEREAS, Xxxxx is a general partner and one of the limited partners of the
Operating Company;
WHEREAS, Holding and AOA Capital Corp, a subsidiary of Holding, propose to
issue $50 million in original principal amount of senior notes due 2006 (the
"New Bonds");
WHEREAS, in connection with the issuance of the New Bonds, (i) Xxxxx is
required to contribute his interests in the Operating Company (as both general
partner and limited partner) to Holding and is required to transfer to Holding
his shares of stock in AOA Inc, (ii) the amount of the recourse liability of
Xxxxx in respect of the Existing Bonds is to be increased from $40 million to
$75 million and (iii) Holding has agreed to assume all of the obligations of
Xxxxx as a general partner of the Operating Company, including his obligations
under the Existing Bonds, and Holding will become a substitute general partner
of the Operating Company;
WHEREAS, Xxxxx is the sole member of Holding and owns all of the ownership
interests therein;
WHEREAS, a significant portion of the proceeds of the New Bonds are
intended to be distributed to Xxxxx and, accordingly, Xxxxx will receive
significant benefit from the issuance thereof;
WHEREAS, in consideration of the assumption by Holding of the obligations
of Xxxxx as general partner of the Operating Company including, without
limitation, his obligations in respect of the Existing Bonds and the Existing
Ancillary Agreements (increased, in the case of the Existing Bonds, from $40
million to $75 million, as hereinbefore stated), Xxxxx has agreed
to contribute capital to Holding in an amount equal to the amount (a "Deficit
Payment") for which formal claim has been made against Holding in its capacity
as a general partner of the Operating Company by any unaffiliated party (a
"Payee");
NOW THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties hereto agree as follows:
1. Xxxxx agrees to contribute to Holding, within three business days after
demand therefor by Holding (which demand can be made from time to time, it being
understood that the obligations of Xxxxx hereunder shall be continuing so long
as Holding is a general partner of the Operating Company), an amount equal to
the Deficit Payment (for payment to a Payee from Xxxxx as a primary obligor).
Xxxxx shall not be entitled to any return or refund of such contribution from
Holding.
2. Holding shall give notice to Xxxxx of the amount of the Deficit Payments
and any demand made pursuant to paragraph 1 above shall be accompanied by a
certification of the chief financial officer of Holding setting forth the amount
of the Deficit Payments and the calculation thereof.
3. In the event of any contribution by Xxxxx pursuant to paragraph 1 above,
Xxxxx shall be subrogated to the rights and claims of the general partner of the
Operating Company against the Payee.
4. All notices, requests and other communications from any of the parties
hereto to the other shall be in writing and shall be considered to have been
duly given or served when personally delivered (in the case of a corporate
entity, to an executive officer of such party), or on the first day after the
date of deposit with a recognized overnight delivery service for next day
delivery, postage prepaid, or on the third day after deposit in the United
States mail, certified or registered, return receipt requested, postage prepaid,
or on the date of telecopy, facsimile or similar telephonic transmission during
normal business hours, provided that the recipient has specifically acknowledged
by telephone receipt of such telecopy, facsimile or telephonic transmission;
addressed, in all cases, to the party at the address set forth below, or to such
other address as such party may hereafter designate by written notice to the
other parties.
AOA Holding LLC
1380 W. Paces Ferry Road NW
Suite 170 South Wing
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Xxxxxxx Xxxxx
0000 Xxxxx Xxx Xxx Xxxxx
Xxxxxxx, XX 00000
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5. This agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. This agreement
shall be construed and enforced in accordance with the laws of the state of
Minnesota. This agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument. This agreement contains the entire understanding of the parties
with respect to the subject matter hereof and may not be varied, modified or
amended except by a writing signed by the parties to be charged. The making,
execution and delivery of this agreement by the parties hereto have been induced
by no representations, statements, warranties or agreement of the other except
those herein expressed. Nothing in this agreement, whether express or implied,
is intended to confer upon any person, other than the parties hereto and their
respective successors and permitted assigns, any right, remedy or claim under or
by reason of this agreement or of any term, condition or covenant hereof.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the date first above written.
AOA HOLDING LLC
By /s/ Xxx Xxxxxx
Its VP CFO
/s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
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