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EXHIBIT 10.10
CREDIT AGREEMENT
among
TRI-STATE OUTDOOR MEDIA GROUP, INC.,
THE LENDING INSTITUTIONS PARTY HERETO, as Lenders
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent,
Dated as of
SEPTEMBER 18, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS.......................................................................................................1
ARTICLE II
THE CREDITS......................................................................................................16
2.1 Commitments..................................................................................16
2.1.1 Facility A Commitment........................................................16
2.1.2 Facility B Commitment........................................................16
2.1.3 Facility C Commitment........................................................17
2.2 Required Payments; Termination...............................................................17
2.2.1 Facility A...................................................................17
2.2.2 Facilities B and C...........................................................17
2.2.3 Sale of Assets...............................................................17
2.2.4 Sales of Equity..............................................................18
2.2.5 Initial Public Offering......................................................18
2.2.6 Allocation...................................................................18
2.2.7 Termination..................................................................18
2.3 Ratable Loans................................................................................18
2.4 Types of Advances............................................................................19
2.4.1 Types........................................................................19
2.5 Agent's Fee; Reductions in Aggregate Commitments.............................................19
2.5.1 Agent's Fee..................................................................19
2.5.2 Mandatory Reductions.........................................................19
2.5.3 Voluntary Reductions.........................................................19
2.6 Minimum Amount of Each Advance...............................................................19
2.7 Optional Principal Payments..................................................................19
2.8 Method of Selecting Types and Interest Periods for New Advances..............................20
2.9 Conversion and Continuation of Outstanding Advances..........................................20
2.10 Changes in Interest Rate, Etc................................................................21
2.11 Rates Applicable After Default...............................................................21
2.12 Method of Payment............................................................................21
2.13 Notes; Telephonic Notices....................................................................22
2.14 Interest Payment Dates; Interest and Fee Basis...............................................22
2.15 Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. .................................................................................22
2.16 Lending Installations........................................................................22
2.17 Non-Receipt of Funds by the Agent............................................................22
2.18 Provisions relating to Facility B Letter of Credit...........................................23
2.18.1 Participation in Facility B Letter of Credit.................................23
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2.18.2 Reimbursement for Draws Under Facility B Letter of Credit....................25
2.18.3 Indemnification; Assumption of Risk..........................................26
2.18.4 Acceleration.................................................................27
2.18.5 Cash Collateral Account......................................................27
ARTICLE III
YIELD PROTECTION; TAXES..........................................................................................27
3.1 Yield Protection.............................................................................27
3.2 Changes in Capital Adequacy Regulations......................................................28
3.3 Availability of Types of Advances............................................................28
3.4 Funding Indemnification......................................................................29
3.5 Taxes........................................................................................29
3.6 Lender Statements; Survival of Indemnity.....................................................30
ARTICLE IV
CONDITIONS PRECEDENT.............................................................................................30
4.1 Initial Advance and Release of Cash Collateral...............................................30
4.2 Each Advance and Release of Cash Collateral..................................................34
ARTICLE V
REPRESENTATIONS AND WARRANTIES...................................................................................34
5.1 Corporate Existence and Standing.............................................................34
5.2 Authorization and Validity...................................................................34
5.3 No Conflict; Government Consent..............................................................34
5.4 Financial Statements.........................................................................35
5.5 Material Adverse Change......................................................................35
5.6 Taxes........................................................................................35
5.7 Litigation and Contingent Obligations........................................................35
5.8 Subsidiaries.................................................................................35
5.9 ERISA........................................................................................36
5.10 Accuracy of Information......................................................................36
5.11 Regulation U.................................................................................36
5.12 Material Agreements..........................................................................36
5.13 Compliance With Laws, Etc....................................................................36
5.14 Ownership of Properties......................................................................36
5.15 Plan Assets; Prohibited Transactions.........................................................36
5.16 Environmental Matters........................................................................37
5.17 Investment Company Act.......................................................................37
5.18 Public Utility Holding Company Act...........................................................37
5.19 Insurance....................................................................................37
5.20 Solvency.....................................................................................37
5.21 Year 2000....................................................................................38
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ARTICLE VI
COVENANTS........................................................................................................38
6.1 Financial Reporting..........................................................................38
6.2 Use of Proceeds..............................................................................39
6.3 Notice of Default, Etc.......................................................................40
6.4 Conduct of Business..........................................................................40
6.5 Taxes........................................................................................40
6.6 Insurance....................................................................................40
6.6.1 Property Insurance...........................................................40
6.6.2 Key Man Life Insurance.......................................................41
6.7 Compliance with Laws.........................................................................41
6.8 Maintenance of Properties....................................................................41
6.9 Inspection...................................................................................41
6.10 Dividends....................................................................................41
6.11 Indebtedness.................................................................................41
6.12 Merger.......................................................................................42
6.14 Sale of Accounts.............................................................................43
6.15 Sale and Leaseback...........................................................................43
6.16 Investments and Acquisitions.................................................................43
6.17 Contingent Obligations.......................................................................44
6.18 Liens........................................................................................44
6.19 Financial Covenants..........................................................................45
6.19.1 Total Leverage Ratio.........................................................45
6.19.2 Pro Forma Debt Service Coverage Ratio........................................45
6.19.3 Capital Expenditures.........................................................46
6.20 Affiliates...................................................................................46
6.21 Financial Undertakings.......................................................................46
6.22 Reinvestment of Net Proceeds.................................................................46
6.23 Year 2000....................................................................................47
6.24 Collateral Security; Further Assurances......................................................47
6.24.1 Grant of Security............................................................47
6.24.2 Subsidiaries.................................................................47
6.24.3 Additional Collateral; Further Assurances....................................47
6.24.4 ......................................................................................48
6.24.5 Exercise of Rights...........................................................48
ARTICLE VII
DEFAULTS.........................................................................................................48
7.1 .............................................................................................48
7.2 .............................................................................................48
7.3 .............................................................................................48
7.4 .............................................................................................48
7.5 .............................................................................................49
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7.6 .............................................................................................49
7.7 .............................................................................................49
7.8 .............................................................................................49
7.9 .............................................................................................50
7.10 .............................................................................................50
7.11 .............................................................................................50
7.12 .............................................................................................50
7.13 .............................................................................................50
7.14 .............................................................................................50
7.15 .............................................................................................50
7.16 .............................................................................................50
7.17 .............................................................................................50
7.18 .............................................................................................51
7.19 .............................................................................................51
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...................................................................51
8.1 Acceleration.................................................................................51
8.2 Amendments...................................................................................51
8.3 Preservation of Rights.......................................................................52
ARTICLE IX
GENERAL PROVISIONS...............................................................................................52
9.1 Survival of Representations..................................................................52
9.2 Governmental Regulation......................................................................53
9.3 Headings.....................................................................................53
9.4 Entire Agreement.............................................................................53
9.5 Several Obligations; Benefits of this Agreement..............................................53
9.6 Expenses; Indemnification....................................................................53
9.7 Numbers of Documents.........................................................................54
9.8 Accounting...................................................................................54
9.9 Severability of Provisions...................................................................54
9.10 Nonliability of Lenders......................................................................54
9.11 Confidentiality..............................................................................54
9.12 Nonreliance..................................................................................54
ARTICLE X
THE AGENT........................................................................................................55
10.1 Appointment; Nature of Relationship..........................................................55
10.2 Powers.......................................................................................55
10.3 General Immunity.............................................................................55
10.4 No Responsibility for Loans, Recitals, etc...................................................55
10.5 Action on Instructions of Lenders............................................................56
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10.6 Employment of Agents and Counsel.............................................................56
10.7 Reliance on Documents; Counsel...............................................................56
10.8 Agent's Reimbursement and Indemnification....................................................56
10.9 Notice of Default............................................................................57
10.10 Rights as a Lender...........................................................................57
10.11 Lender Credit Decision.......................................................................57
10.12 Successor Agent..............................................................................57
10.13 Delegation to Affiliates.....................................................................58
10.14 Execution of Collateral Documents............................................................58
10.15 Collateral Releases..........................................................................58
ARTICLE XI
SETOFF; RATABLE PAYMENTS.........................................................................................58
11.1 Setoff.......................................................................................58
11.2 Ratable Payments.............................................................................59
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................................................................59
12.1 Successors and Assigns.......................................................................59
12.2 Participations...............................................................................59
12.2.1 Permitted Participants; Effect...............................................59
12.2.2 Voting Rights................................................................60
12.2.3 Benefit of Setoff............................................................60
12.3 Assignments..................................................................................60
12.3.1 Permitted Assignments........................................................60
12.3.2 Effect; Effective Date.......................................................61
12.4 Dissemination of Information.................................................................61
12.5 Tax Treatment................................................................................61
ARTICLE XIII
NOTICES..........................................................................................................61
13.1 Notices......................................................................................61
13.2 Change of Address............................................................................62
ARTICLE XIV
COUNTERPARTS.....................................................................................................62
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.....................................................62
15.1 CHOICE OF LAW................................................................................62
15.2 CONSENT TO JURISDICTION......................................................................62
15.3 WAIVER OF JURY TRIAL.........................................................................63
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EXHIBITS
EXHIBIT "A" - FACILITY A NOTE
EXHIBIT "B" - FACILITY B NOTE
EXHIBIT "C" - FACILITY C NOTE
EXHIBIT "D" - PLEDGE AGREEMENT
EXHIBIT "E" - SECURITY AGREEMENT
EXHIBIT "F" - COMPLIANCE CERTIFICATE
EXHIBIT "G" - ASSIGNMENT AGREEMENT
EXHIBIT "H" - LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
EXHIBIT "I" - REINVESTMENT NOTICE
SCHEDULES
SCHEDULE "1" - LENDER COMMITMENTS
SCHEDULE "2" - SUBSIDIARIES AND OTHER INVESTMENTS
SCHEDULE "3" - INDEBTEDNESS AND LIENS
SCHEDULE "4" - LITIGATION
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TRI-STATE OUTDOOR MEDIA GROUP, INC.
CREDIT AGREEMENT
This Credit Agreement, dated as of September 18, 1998, is among
TRI-STATE OUTDOOR MEDIA GROUP, INC., the LENDERS and THE FIRST NATIONAL BANK OF
CHICAGO, as Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting power) of the
outstanding partnership interests of a partnership or membership interests in a
limited liability company.
"Advance" means a borrowing hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to
the Borrower of the same Type and, in the case of Eurodollar Advances, for the
same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means The First National Bank of Chicago in its capacity as
agent for the Lenders pursuant to Article X, and not in its individual capacity
as a Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the Aggregate Facility A Commitment, the
Aggregate Facility B Commitment or the Aggregate Facility C Commitment, as
appropriate.
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"Aggregate Facility A Commitment" means the aggregate of the Facility A
Commitments of all the Lenders (including amounts outstanding thereunder), as
reduced from time to time pursuant to the terms hereof.
"Aggregate Facility B Commitment" means the aggregate of the Facility B
Commitments of all the Lenders (including amounts outstanding thereunder), as
reduced from time to time pursuant to the terms hereof.
"Aggregate Facility C Commitment" means the aggregate of the Facility C
Commitments of the Lenders (including amounts outstanding thereunder), as
reduced from time to time pursuant to the terms hereof.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Aggregate Total Commitment" means the combined total of the Aggregate
Facility A Commitment, the Aggregate Facility B Commitment and the Aggregate
Facility C Commitment.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of Federal Funds Effective Rate for such day plus 1/2% per annum.
"Annualized Net Operating Cash Flow" means, as at any date of
determination thereof, the product of (i) Net Operating Cash Flow for the fiscal
quarter ending on such date, times (ii) four.
"Applicable Margin" means the applicable margin set forth below:
Period Eurodollar Loans Floating Rate Loans
------ ---------------- -------------------
Closing Date through 12/30/98 3.50% 2.00%
12/31/98 through 3/30/99 4.00% 2.50%
3/31/99 through 6/29/99 4.50% 3.00%
6/30/99 through 9/29/99 5.00% 3.50%
9/30/99 and thereafter 5.50% 4.00%
"Arranger" means First Chicago Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
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"Asset Purchase Agreement" means that certain asset purchase agreement,
dated September 4, 1998, between the Borrower and Western Outdoor.
"Authorized Officer" means either of the President or the Chief
Financial Officer of the Borrower, acting singly.
Available Amount" means $1,250,000, less the aggregate of all amounts
drawn and paid by the Issuing Lender under the Facility B Letter of Credit.
"Borrower" means Tri-State Outdoor Media Group, Inc., a Kansas
corporation, and its successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
"Capital Expenditures" means, without duplication, any expenditures by
any of the Borrower or its Subsidiaries for any purchase or other acquisition
for value of any asset that is classified on a consolidated balance sheet of
Holdings and its Subsidiaries prepared in accordance with Agreement Accounting
Principles as a fixed or capital asset excluding (i) the cost of assets acquired
with Capitalized Lease Obligations (other than that portion which is capitalized
on the consolidated balance sheet), (ii) expenditures of insurance proceeds to
rebuild or replace any asset after a casualty loss, and (iii) leasehold
improvement expenditures for which a Borrower or the Subsidiary is reimbursed
promptly by the lessor.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change in Control" means (i) Xxxxxxx Xxxxx or a trust for the benefit
of Xxxxxxx Xxxxx or his spouse or descendants, partnership or limited liability
company (in each case, controlled by Xxxxxxx Xxxxx) shall cease to own, free and
clear of all Liens or other encumbrances (other than Liens in favor of the Agent
and the Lenders), at least 23% of the outstanding shares of voting stock
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of Holdings on a fully diluted basis; or (ii) Xxxxxxx Xxxxx shall cease to be
the acting Chief Executive Officer of Holdings or the Borrower and the board of
directors of the applicable company shall not have appointed a successor
reasonably acceptable to the Required Lenders within six months; or (iii)
Holdings shall cease to own, free and clear of all Liens or other encumbrances
(other than Liens in favor of the Agent and the Lenders), 100% of the
outstanding shares of capital stock of the Borrower on a fully diluted basis.
"Closing Date" means the Business Day on which (a) the Borrower, the
Agent and the Lenders have executed this Agreement, and (b) all of the
conditions precedent set forth in Article IV shall have been satisfied or waived
in accordance with the terms hereof.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means, collectively, "Collateral" as defined in
each of the Collateral Documents.
"Collateral Assignment" means a collateral assignment of
representations, warranties, covenants, indemnities and rights, in form and
substance satisfactory to the Agent, duly executed and delivered to the Agent by
the Borrower, as the same may be amended or modified and in effect from time to
time.
"Collateral Documents" means, collectively, the Security Agreement, the
Collateral Assignment, the Pledge Agreement, all other security agreements and
collateral documents executed and delivered to the Agent pursuant to Section
6.24.2 or 6.24.3, and all other agreements, instruments, or documents necessary
to effect the purposes of the Security Agreement, the Pledge Agreement, and all
such other security agreements and collateral documents, including, without
limitation, UCC-1 financing statements and fixture filings suitable for filing
in the appropriate jurisdictions.
"Commitment" means a Facility A Commitment, a Facility B Commitment or
a Facility C Commitment, as appropriate.
"Compliance Certificate" means a compliance certificate, in
substantially the form of Exhibit "F" hereto, with appropriate insertions,
signed by the Borrower's Chief Financial Officer.
"Condemnation" is defined in Section 7.8.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss,
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including, without limitation, any comfort letter, operating agreement,
take-or-pay contract, or application for a Letter of Credit.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Converted Mesirow Equity" means preferred stock in Holdings issued to
Mesirow Capital Partners VI and Mesirow Capital Partners VII upon the conversion
of the Holdings Mesirow Indebtedness thereto.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes.
"Default" means an event described in Article VII.
"Delivery Date" means the date on which the Borrower is required to
deliver annual audited financial statements to the Lenders in accordance with
Section 6.1(i).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Environmental Laws" means any and all federal, state and local
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"Eurodollar Advance" means an Advance which bears interest at a
Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the rate determined by the Agent to be the rate at
which deposits in U.S. dollars are offered by First Chicago to first-class banks
in the London interbank market at approximately 11 a.m. (London time) two
Business Days prior to the first day of such Interest Period, in the approximate
amount of First Chicago's relevant Eurodollar Loan and having a maturity
approximately equal to such Interest Period.
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"Eurodollar Loan" means a Loan which bears interest at a Eurodollar
Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, if any,
plus (ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the
next higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Facility" means Facility A, Facility B or Facility C, as appropriate.
"Facility A" means a single-draw term loan facility in the amount of
the Aggregate Facility A Commitment utilized under this Agreement pursuant to
Section 2.1.1.
"Facility A Commitment" means, for each Lender, the obligation of such
Lender to make term Loans under Facility A not exceeding the amount set forth
opposite its name on Schedule "1" hereto (but subject to Section 2.1.1) or as
set forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Facility A Lenders" means, collectively, Lenders having Facility A
Commitments.
"Facility A Note" means a promissory note, in substantially the form of
Exhibit "A" hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Facility A Commitment, including any amendment,
modification, renewal or replacement of such promissory note.
"Facility B" means a letter of credit facility under which (i) the
Facility B Letter of Credit will be deemed issued and (ii) a multi-draw term
loan facility will be available to the Borrower for the purpose of reimbursing
the Issuing Lender and the other Facility B Lenders for payments made under the
Facility B Letter of Credit, in the amount of the Aggregate Facility B
Commitment utilized pursuant to Section 2.1.2.
"Facility B Commitment" means, for each Lender, the obligation of such
Lender to pay its Percentage of a drawing under the Facility B Letter of Credit
and/or make term Loans under Facility B in an amount not exceeding the amount
set forth opposite its name on Schedule "1" hereto or as
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set forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Facility X X/C Collateral Release" means the release by First Chicago
of the "Pledged Instruments", as defined in the Pledge Agreement dated as of May
20, 1998 between the Borrower and First Chicago, and the termination of such
Pledge Agreement.
"Facility X X/C Security and Reimbursement Agreement" means the
Security and Reimbursement Agreement for Irrevocable Standby Letter of Credit
between the Borrower and the Issuing Lender pertaining to the Facility B Letter
of Credit, as the same may be amended or modified and in effect from time to
time.
"Facility B Lenders" means, collectively, Lenders having Facility B
Commitments.
"Facility B Letter of Credit" means the Irrevocable Standby Letter of
Credit no. 00324651, dated February 27, 1998 and expiring on August 27, 2000,
issued by First Chicago for the benefit of Transfinancial Bank in the amount of
$1,250,000 for the account of the Borrower.
"Facility B Letter of Credit Participation Amount" means, for each
Facility B Lender at any date of determination, such Lender's Percentage of the
aggregate undrawn amount available (whether or not the conditions which would
allow a draw thereunder have been met) to the beneficiary thereof under the
Facility B Letter of Credit as of such date of determination.
"Facility B Note" means a promissory note, in substantially the form of
Exhibit "B" hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Facility B Commitment, including any amendment,
modification, renewal or replacement of such promissory note.
"Facility C" means a revolving credit facility in the amount of the
Aggregate Facility C Commitment utilized under this Agreement pursuant to
Section 2.1.3.
"Facility C Commitment" means, for each Lender, the obligation of such
Lender to make revolving credit Loans under Facility C in an aggregate amount at
any one time outstanding not exceeding the amount set forth opposite its name on
Schedule "1" hereto or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to Section 12.3.2, as such amount
may be modified from time to time pursuant to the terms hereof.
"Facility C Lenders" means, collectively, Lenders having Facility C
Commitments.
"Facility C Note" means a promissory note, in substantially the form of
Exhibit "C" hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Facility C Commitment, including any amendment,
modification, renewal or replacement of such promissory note.
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"Facility Termination Date" means September 30, 2000.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Fee Letter" means the Fee Letter, dated August 18, 1998, between the
Borrower and First Chicago, as the same may be amended or modified and in effect
from time to time.
"Financial Undertaking" of a Person means (i) any repurchase obligation
or liability of such Person or any of its Subsidiaries with respect to accounts
or notes receivable sold by such Person or any of its Subsidiaries, (ii) any
sale and leaseback transactions which do not create a liability on the
consolidated balance sheet of such Person and its Subsidiaries, (iii) any other
transaction (other than Capitalized Lease Obligations) which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the consolidated balance sheets of such Person and its
Subsidiaries, or (iv) any agreements, devices or arrangements designed to
protect at least one of the parties thereto from the fluctuations of interest
rates, exchange rates or forward rates applicable to such party's assets,
liabilities or exchange transactions, including, but not limited to, interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Holdings" means SGH Holdings, Inc., a Delaware corporation, and its
successors and assigns.
"Holdings Mesirow Indebtedness" means, collectively, (i) that certain
Indebtedness of Holdings to Mesirow Capital Partners VI in the amount of
$3,900,000 plus accrued interest, as
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evidenced by the Mesirow 94 Documents, and (ii) that certain Indebtedness of
Holdings to Mesirow Capital Partners VI and Mesirow Capital Partners VII in the
amount of $9,000,000 plus accrued interest, as evidenced by the Mesirow 97
Documents.
"Holdings Warrant" means the Warrant, if it is issued by Holdings in
favor of First Chicago pursuant to the Warrant Agreement.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) Capitalized Lease Obligations, (vi) Contingent Obligations,
(vii) Sale and Leaseback Transactions, (viii) Net Xxxx-to-Market Exposure of
Rate Hedging Agreements, and (ix) obligations under non-compete agreements.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three, or, six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one, two, three, or
six months thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third, or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third,
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day; provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, notes, debentures or other securities of any other Person
made by such Person.
"Issuing Lender" means First Chicago in its capacity as issuer of the
Facility B Letter of Credit.
"Key Man Life Insurance" means a life insurance policy or policies
obtained by the beneficiary or beneficiaries thereof on the life of Xxxxxxx X.
Xxxxx in a face amount of not less than $2,500,000 and assigned by such
beneficiary or beneficiaries to the Agent for the benefit of the Lenders, such
policy or policies to be issued by a reputable insurer rated "A" or better by
A.M. Best & Co. and the form and terms of such policies and assignment to be
acceptable to the Agent.
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"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Security Agreement, the Collateral Assignment, the Facility X X/C Security and
Reimbursement Agreement, the Fee Letter, and any other agreements, instruments,
or documents executed by the Borrower in favor of the Agent or any Lender to
effect the purposes of the financing arrangement contemplated hereunder.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents,
(iii) the ability of Holdings to perform its obligations under the Pledge
Agreement, the Warrant Agreement or the Holdings Warrant (if issued), or (iv)
the validity or enforceability of any of the Transaction Documents or the rights
or remedies of the Agent or the Lenders thereunder.
"Material Indebtedness" means any Indebtedness aggregating in excess of
$250,000.
"Mesirow 94 Documents" means that certain Note and Warrant Purchase
Agreement dated September 30, 1994 between Holdings and Mesirow Capital Partners
VI, together with the promissory notes attached thereto as Exhibits, as amended
pursuant to that certain Amendment Agreement between Holdings and Mesirow
Capital Partners VI dated as of June 12, 1997.
"Mesirow 97 Documents" means, collectively, those certain subordinated
notes issued by Holdings to Mesirow Capital Partners VI and Mesirow Capital
Partners VII and dated as of June 12, 1997 in the aggregate principal amount of
$9,000,000, and any other agreements, instruments, indentures, or documents
evidencing or providing for the subordination of the Indebtedness evidenced by
such subordinated notes.
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"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Hedging Agreements. "Unrealized losses"
means the fair market value of the cost to such Person of replacing such Rate
Hedging Agreement as of the date of determination (assuming the Rate Hedging
Agreement were to be terminated as of that date), and "unrealized profits" means
the fair market value of the gain to such Person of replacing such Rate Hedging
Agreement as of the date of determination (assuming such Rate Hedging Agreement
were to be terminated as of that date).
"Net Operating Cash Flow" means, for any period of determination
thereof, the sum of (a) pre-tax income or deficit, as the case may be (excluding
extraordinary gains and losses), (b) cash interest expense, (c) depreciation and
amortization, and (d) all other non-cash charges (to the extent deducted in
determining net income or deficit), all calculated for such period for the
Borrower and its Subsidiaries on a consolidated basis, after giving effect to
any Acquisitions and Sales of assets made during such period as if made on the
first day of such period, and for the period during which the Western Outdoor
Acquisition occurs, with such other adjustments related to the Western Outdoor
Acquisition as may be agreed upon between the Borrower and the Agent.
"Net Proceeds" means net cash proceeds realized upon (i) the sale,
transfer, or other disposition of assets or (ii) the sale or series of sales or
issuance of any common stock, preferred stock, warrant or other equity, in each
case after the payment of all expenses (including, with respect to clause (ii),
underwriting discounts and commissions) and taxes related to such transaction
and the net cash proceeds of the liquidation (at any time) of securities
received as consideration from such transaction.
"Notes" means, collectively, the Facility A Notes, the Facility B Notes
and the Facility C Notes, and "Note" means any one of the Facility A Notes, the
Facility B Notes or the Facility C Notes.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all obligations and liabilities in respect of the
Facility B Letter of Credit, including, without limitation, Unreimbursed
Drawings, and all expenses, reimbursements, indemnities and other obligations of
the Borrower to the Lenders or to any Lender, the Agent or any indemnified party
hereunder arising under the Loan Documents.
"Operating Lease" of any Person means any lease of Property (other than
a Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
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"Other Taxes" is defined in Section 3.5(ii).
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September, and
December.
"Percentage" means, for any Facility B Lender, 100% times a fraction
(a) the numerator of which is such Lender's Facility B Commitment, and (b) the
denominator of which is the Aggregate Facility B Commitment.
"Permitted Acquisition" means any Acquisition by the Borrower with
respect to which each of the following requirements is satisfied:
(a) Such Acquisition has been approved or consented to by (i)
the board of directors or equivalent governing body of the Person whose assets
or equity interests are to be acquired and (ii) in the event that the aggregate
consideration for such Acquisition (or for such Acquisition and related
Acquisitions) exceeds $250,000, the Required Lenders.
(b) Prior to and after giving effect to such Acquisition, no
Default or Unmatured Default will exist.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pledge Agreement" means a pledge agreement, in substantially the form
of Exhibit "D" hereto, duly executed and delivered to the Agent by Holdings, as
the same may be amended or modified and in effect from time to time.
"Principal Obligations Amount" means an amount equal to the sum of (i)
the aggregate principal amount of Advances outstanding under the Facilities,
(ii) the aggregate amount of any Unreimbursed Drawings, plus (iii) the Available
Amount, if any, under the Facility B Letter of Credit.
"Pro Forma Debt Service" means, at any date of determination thereof,
the amount of payments of cash interest, principal (other than the payments of
principal under Facility A and Facility C due on the Facility Termination Date)
and fees (other than the up-front fee required to be paid to First Chicago
pursuant to the Fee Letter) on or in respect of Indebtedness required to be made
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by the Borrower and its Subsidiaries during the period of twelve consecutive
complete calendar months next succeeding such date of determination. For
purposes of determining Pro Forma Debt Service, pro forma interest on
Indebtedness shall be calculated at the Eurodollar Rate for an Interest Period
of three months in effect on the date of such calculation.
"Pro Forma Debt Service Coverage Ratio" means, as at the end of any
fiscal quarter, the ratio of (i) Annualized Net Operating Cash Flow, plus cash
on hand less $1,000,000, to (ii) Pro Forma Debt Service.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Hedging Agreements, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reinvestment Notice" is defined in Section 6.13(b).
"Reinvestment Period" is defined in Section 6.13(b).
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be
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notified within 30 days of the occurrence of such event; provided, however, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least
66-2/3% of the Aggregate Total Commitment or, if a Default has occurred and is
continuing or if the Aggregate Commitments have been terminated, Lenders in the
aggregate holding at least 66-2/3% of the aggregate unpaid principal amount of
the outstanding Advances, Unreimbursed Drawings and Facility B Letter of Credit
Participation Amounts.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Sale" means the sale, transfer or other disposition of any assets of
the Borrower or a Subsidiary.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii)
all Rate Hedging Obligations owing to one or more Lenders.
"Security Agreement" means a general pledge and security agreement, in
substantially the form of Exhibit "E" hereto, duly executed and delivered to the
Agent by the Borrower, as the same may be amended or modified and in effect from
time to time.
"Senior Note Indenture" means that certain Indenture dated as of May
15, 1998 between the Borrower, as issuer, and IBJ Xxxxxxxx Bank & Trust Company,
as trustee.
"Senior Notes" means the Borrower's 11% Senior Notes due 2008 issued
under the Senior Note Indenture in the aggregate principal amount of
$100,000,000.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more
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of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of Holdings
and its Subsidiaries, Property which (i) represents more than 10% of the
consolidated assets (before depreciation and amortization) of Holdings and its
Subsidiaries as would be shown in the consolidated financial statements of
Holdings and its Subsidiaries as at the beginning of the twelve-month period
ending with the month in which such determination is made, or (ii) is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of Holdings and its Subsidiaries as reflected in the
financial statements referred to in clause (i) above.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Total Debt" means the sum of (i) Indebtedness for borrowed money
(including accrued but unpaid interest), (ii) Contingent Obligations under
guarantees, (iii) unreimbursed drawings under the Facility B Letter of Credit
and other Letters of Credit, (iv) Net Xxxx-to-Market Exposure of Rate Hedging
Agreements, (v) obligations under non-compete agreements, plus (vi) Capitalized
Lease Obligations in an amount not to exceed $5,000,000, all calculated for the
Borrower and its Subsidiaries on a consolidated basis.
"Total Leverage Ratio" means, as at the end of any fiscal quarter, the
ratio (i) Total Debt as of the end of such fiscal quarter to (ii) Annualized Net
Operating Cash Flow.
"Total Revenues" means the sum of all revenues, according to Agreement
Accounting Principles generated from: (i) the rental of out-of-home advertising
displays; (ii) the production of out-of-home advertising displays; (iii) the
production of advertising copy for out-of-home advertising displays (including
the sale of materials used to produce such advertising copy); (iv) commercial
sales and service; and (v) subleasing of out-of-home advertising displays or of
other related assets.
"Transaction Documents" means, collectively, the Loan Documents, the
Pledge Agreement, the Warrant Agreement, the Holdings Warrant (if issued), all
guaranties executed and delivered by Subsidiaries pursuant to Section 6.25.2 and
any other agreements, instruments, or documents executed by Holdings and any
Subsidiaries in favor of the Agent or any Lender to effect the purposes of the
financing arrangement contemplated hereunder.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or Eurodollar Advance.
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"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Unreimbursed Drawings" means all amounts drawn and paid by the Issuing
Lender under the Facility B Letter of Credit that have not been reimbursed (with
the proceeds of an Advance or otherwise) by the Borrower.
"Warrant Agreement" means the Agreement, dated the Closing Date,
between Holdings and First Chicago relating to the issuance of the Holdings
Warrant, as the same may be amended or modified and in effect from time to time.
"Western Outdoor" means Western Outdoor Advertising Co., a Nebraska
corporation.
"Western Outdoor Acquisition" means the Acquisition of the assets of
Western Outdoor pursuant to the Asset Purchase Agreement.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, 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, or (ii) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and after January 1, 2000, as such inability
affects the business, operations and financial condition of the Borrower and its
Subsidiaries and of the Borrower's and its Subsidiaries' material customers,
suppliers and vendors.
"Year 2000 Program" is defined in Section 5.21.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
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2.1 Commitments.
2.1.1 Facility A Commitment. On the Closing Date,
each Facility A Lender severally (and not jointly) agrees, on the terms and
conditions set forth in this Agreement, to make a term Loan to the Borrower
under Facility A in an amount not to exceed the amount of its Facility A
Commitment. Loans under Facility A shall be (i) applied as set forth in Section
6.2, (ii) evidenced by the Facility A Notes and (iii) secured pursuant to the
terms of the Collateral Documents. Principal payments made on Advances made
under Facility A may not be reborrowed.
2.1.2 Facility B Commitment.
(a) The Issuing Lender agrees, on the terms and
conditions set forth in this Agreement, on the Closing Date to effect the
Facility X X/C Collateral Release. On and after the Closing Date, the Facility B
Letter of Credit shall be (i) deemed to be issued under Facility B and in the
event that any provisions of the Facility X X/C Security and Reimbursement
Agreement are inconsistent with the provisions of this Agreement, the provisions
of this Agreement shall govern and (ii) secured pursuant to the Collateral
Documents.
(b) From and including the Closing Date and prior to
the Facility Termination Date, each Facility B Lender severally (and not
jointly) agrees, on the terms and conditions set forth in this Agreement, to
make term Loans to the Borrower under Facility B from time to time in amounts
not to exceed in the aggregate the amount of its Facility B Commitment. Loans
under Facility B shall be (i) available only in accordance with Section
2.18.2(b) and applied as set forth in Section 6.2, (ii) evidenced by the
Facility B Notes and (iii) secured pursuant to the terms of the Collateral
Documents. Principal payments made on Advances made under Facility B may not be
reborrowed.
2.1.3 Facility C Commitment.
(a) From and including the Closing Date and prior to
the Facility Termination Date, each Facility C Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make Loans to the Borrower
under Facility C from time to time in amounts not to exceed in the aggregate at
any one time outstanding the amount of its Facility C Commitment. Loans under
Facility C shall be (i) applied as set forth in Section 6.2, (ii) evidenced by
the Facility C Notes and (iii) secured pursuant to the terms of the Collateral
Documents. Subject to the terms of this Agreement, the Borrower may borrow,
repay and reborrow under Facility C at any time prior to the Facility
Termination Date so long as any portion of the Aggregate Facility C Commitment
remains unutilized. The Facility C Commitments shall expire on the Facility
Termination Date.
(b) The Borrower hereby agrees that if at any time
the outstanding balance of Advances under Facility C exceeds the Aggregate
Facility C Commitment, the Borrower
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shall immediately repay such Advances in such amount as may be necessary to
eliminate such excess.
2.2 Required Payments; Termination.
2.2.1 Facility A. The outstanding balance of Advances
made under Facility A shall be payable in six installments on the Payment Dates
and in the amounts set forth below. The outstanding balance of Advances made
under Facility A shall be payable in full on the Facility Termination Date.
Payment Date Amount
------------------------------ -----------------
March 31, 1999 $2,500,000
June 30, 1999 $2,500,000
September 30, 1999 $2,500,000
March 31, 2000 $1,000,000
June 30, 2000 $1,000,000
Facility Termination $4,500,000
Date
2.2.2 Facilities B and C. The outstanding balance of
Advances made under Facility B and Facility C shall be payable in full on the
Facility Termination Date.
2.2.3 Sale of Assets. Within 10 days of the receipt
of the proceeds of a Sale permitted by any of Sections 6.13(a)(iv) through
6.13(a)(vii), the Borrower shall make a mandatory payment or prepayment under
the Facilities in accordance with Section 2.2.6 in an amount equal to 100% of
the Net Proceeds (including proceeds from condemnation proceedings brought by or
on behalf of any governmental entity or entities) realized from such Sale,
unless, in the case of Sales permitted by any of Sections 6.13(a)(iv) through
6.13(a)(vi), it complies with the provisions of Section 6.13(b). In the event
that the Borrower does not reinvest 100% of the Net Proceeds identified in a
Reinvestment Notice within the applicable Reinvestment Period, it shall, on or
prior to the last day of such Reinvestment Period, make a mandatory payment or
prepayment under the Facilities in accordance with Section 2.2.6 in an amount
equal to 100% of such Net Proceeds, less any portion thereof so reinvested.
Notwithstanding the foregoing, the Borrower shall not be obligated to pay any
amount under this Section 2.2.3 in excess of the Principal Obligations Amount.
2.2.4 Sales of Equity. Within 60 days of the sale or
series of sales or issuance of any common stock, preferred stock, partnership
interest, limited liability company membership, warrant or other equity (whether
through a public offering or a private sale) by the
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Borrower or Holdings (other than equity issued (a) through an initial public
offering by Holdings, or (b) to employees pursuant to an employee stock option
or ownership program of the Borrower or Holdings), the Borrower shall make a
mandatory payment or prepayment under the Facilities in accordance with Section
2.2.6 in an amount equal to 100% of the Net Proceeds realized from such sale,
series of sales, or issuance; provided, however, that the Borrower shall not be
obligated to pay any amount under this Section 2.2.4, (a) in excess of the
Principal Obligations Amount, or (b) in the event that the Net Proceeds realized
from such sale, series of sales, or issuance is less than $2,000,000 (when
aggregated with the Net Proceeds realized from any such sale, series of sales,
or issuance occurring after the Closing Date) and is applied by the Borrower,
prior to September 30, 1999, to the acquisition of assets that shall be used in
the business of leasing outdoor advertising space.
2.2.5 Initial Public Offering. Concurrently with the
receipt by Holdings or the Borrower of the proceeds of an initial public
offering of capital stock of Holdings or the Borrower, the Borrower shall pay in
full all outstanding Obligations, and shall transfer to the Agent for deposit in
the cash collateral account described in Section 2.18.5 the Available Amount, if
any, under the Facility B Letter of Credit.
2.2.6 Allocation. All payments made under Sections
2.2.3, 2.2.4 and 6.6 shall be applied first to the payment of Unreimbursed
Drawings, second to the prepayment of principal installments under Facility A in
the inverse order of maturity, third to the prepayment of any Advances
outstanding under Facility B, fourth to the payment of any Advances outstanding
under Facility C, and the balance, if any, shall be transferred to the Agent for
deposit in the cash collateral account described in Section 2.18.5.
2.2.7 Termination. Except as otherwise set forth
herein, this Agreement shall terminate when the Borrower has paid in full all
outstanding Obligations and transferred to the Agent for deposit in the cash
collateral account described in Section 2.18.5 the Available Amount, if any,
under the Facility B Letter of Credit.
2.3 Ratable Loans. Each Advance hereunder shall consist of Loans made
under a Facility from the several Lenders ratably in proportion to the ratio
that their respective Commitments under such Facility bear to the Aggregate
Commitment under such Facility.
2.4 Types of Advances.
2.4.1 Types. Advances may be Floating Rate Advances
or Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.8 and 2.9.
2.5 Agent's Fee; Reductions in Aggregate Commitments.
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2.5.1 Agent's Fee. The Borrower agrees to pay to the
Agent, for its own account, such fees as the Borrower and the Agent may agree
upon from time to time.
2.5.2 Mandatory Reductions.
(a) Upon any mandatory or voluntary prepayment of
Advances under Facility A or Facility B, the Aggregate Commitment under such
Facility shall automatically be reduced (ratably among the Lenders according to
their respective Commitments under such Facility) by the amount of such
prepayment.
(b) Upon the occurrence of any of the events
described in Section 2.2.3, 2.2.4 or 6.6, the Aggregate Facility C Commitment
shall automatically be reduced (ratably among the Lenders according to their
respective Commitments under Facility C) by the amount by which the mandatory
payment or prepayment required to be made by the Borrower pursuant to such
Section exceeds the aggregate outstanding balance of Advances under Facility A
and Facility B.
2.5.3 Voluntary Reductions. The Borrower may
permanently reduce any Aggregate Commitment in whole, or in part ratably among
the applicable Lenders in integral multiples of $250,000, upon at least two
Business Days' written notice to the Agent, which notice shall specify the
amount of any such reduction and the Aggregate Commitment to which it is to be
applied, provided, however, that the amount of the Aggregate Commitment under a
Facility may not be reduced below the aggregate principal amount of the
outstanding Advances under such Facility.
2.6 Minimum Amount of Each Advance. Each Eurodollar Advance shall be in
the minimum amount of $100,000 (and in multiples of $50,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$100,000 (or in the amount of its reimbursement obligation pursuant to Section
2.18.2, if applicable) (and in multiples of $50,000 if in excess thereof);
provided, however, that any Floating Rate Advance may be in the amount of the
applicable unused Aggregate Commitment.
2.7 Optional Principal Payments. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances, or, in
a minimum aggregate amount of $250,000 or any integral multiple of $100,000 in
excess thereof, any portion of the outstanding Floating Rate Advances upon two
Business Days' prior written notice to the Agent. A Eurodollar Advance may not
be paid prior to the last day of the applicable Interest Period. All prepayments
made under this Section 2.7 shall be applied first to any Advances outstanding
under Facility C, second to principal installments under Facility A in the
inverse order of maturity, and third to any Advances outstanding under Facility
B.
2.8 Method of Selecting Types and Interest Periods for New Advances.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable to each Advance from time to
time. The Borrower shall give the Agent irrevocable notice (a "Borrowing
Notice") not later than 10:00 a.m. (Chicago time) at least one Business Day
before
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the Borrowing Date of each Floating Rate Advance and three Business Days before
the Borrowing Date for each Eurodollar Advance, specifying:
(i) the Facility under which such Advance is to be borrowed,
(ii) the Borrowing Date, which shall be a Business Day, of
such Advance,
(iii) the aggregate amount of such Advance,
(iv) the Type of Advance selected, and
(v) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall
make available its Loan or Loans, in funds immediately available in Chicago to
the Agent at its address specified pursuant to Article XIII. The Agent will make
the funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
2.9 Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar Advances. Each Eurodollar Advance
shall continue as a Eurodollar Advance until the end of the then applicable
Interest Period therefor, at which time such Eurodollar Advance shall be
automatically converted into a Floating Rate Advance unless the Borrower shall
have given the Agent a Conversion/Continuation Notice requesting that, at the
end of such Interest Period, such Eurodollar Advance either continue as a
Eurodollar Advance for the same or another Interest Period or be converted into
a Floating Rate Advance. Subject to the terms of Section 2.6, the Borrower may
elect from time to time to convert all or any part of an Advance of any Type
into any other Type or Types of Advances; provided that any conversion of any
Eurodollar Advance shall be made on, and only on, the last day of the Interest
Period applicable thereto. The Borrower shall give the Agent irrevocable notice
(a "Conversion/Continuation Notice") of each conversion of an Advance or
continuation of a Eurodollar Advance not later than 10:00 a.m. (Chicago time) at
least one Business Day, in the case of a conversion into a Floating Rate
Advance, or three Business Days, in the case of a conversion into or
continuation of a Eurodollar Advance, prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to
be converted or continued; and
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(iii) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a conversion into or
continuation of a Eurodollar Advance, the duration of the Interest Period
applicable thereto.
2.10 Changes in Interest Rate, Etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a Eurodollar
Advance into a Floating Rate Advance pursuant to Section 2.9 to but excluding
the date it becomes due or is converted into a Eurodollar Advance pursuant to
Section 2.9 hereof, at a rate per annum equal to the Floating Rate for such day.
Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change in the
Alternate Base Rate. Each Eurodollar Advance shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the Eurodollar Rate
determined as applicable to such Eurodollar Advance. No Interest Period may end
after the Facility Termination Date. The Borrower shall select Interest Periods
so that it is not necessary to repay any portion of a Eurodollar Advance prior
to the last day of the applicable Interest Period in order to make a mandatory
repayment required pursuant to Section 2.2.1.
2.11 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. If any Advance (or portion
thereof) is not paid when due, whether pursuant to any of Sections 2.2.1 through
2.2.5, by acceleration or otherwise, the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that all
Advances shall bear interest at a rate per annum equal to the Floating Rate
otherwise applicable to the Floating Rate Advances plus 3% per annum until such
Advance (or portion thereof) is paid in full.
2.12 Method of Payment. All payments of the Obligations hereunder shall
be made, without setoff, deduction, or counterclaim, in immediately available
funds to the Agent at the Agent's address specified pursuant to Article XIII, or
at any other Lending Installation of the Agent specified in writing by the Agent
to the Borrower, by noon (Chicago time) on the date when due and shall be
applied ratably by the Agent among the Lenders to whom such Obligations are due.
Each payment delivered to the Agent for the account of any Lender shall be
delivered promptly by the Agent to such Lender in the same type of funds that
the Agent received at its address specified pursuant to Article XIII or at any
Lending Installation specified in a notice received by the Agent from such
Lender. The Agent is hereby authorized to charge the account of the Borrower
maintained with First Chicago for each payment of principal and interest as it
becomes due hereunder.
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2.13 Notes; Telephonic Notices. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its applicable Note; provided, however, that the failure to
so record (or any error in such recordation) shall not affect the Borrower's
obligations under such Note. The Borrower hereby authorizes the Lenders and the
Agent to extend, convert or continue Advances and effect selections of Types of
Advances based on telephonic notices made by any person or persons the Agent or
any Lender in good faith believes to be acting on behalf of the Borrower and the
Agent shall, absent written instructions from an Authorized Officer to the
contrary, deposit the proceeds of such Advances in the Borrower's operating
account with the Agent. The Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.14 Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, and at maturity.
Interest accrued on each Eurodollar Advance shall be payable on the last day of
its applicable Interest Period, on any date on which the Eurodollar Advance is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Eurodollar Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period. Interest shall be calculated for actual days elapsed on the
basis of a 360-day year. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to noon (Chicago time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.15 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each affected Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Conversion/Continuation Notice, and repayment notice
received by it hereunder. The Agent will notify the Borrower and each affected
Lender of the interest rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give the Borrower and each Lender
prompt notice of each change in the Alternate Base Rate.
2.16 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written notice to
the Agent and the Borrower, designate a Lending Installation through which Loans
will be made by it and for whose account Loan payments are to be made.
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2.17 Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal
or interest to the Agent for the account of any Lenders, that it does not intend
to make such payment, the Agent may assume that such payment has been made. The
Agent may, but shall not be obligated to, make the amount of such payment
available to the intended recipient in reliance upon such assumption. If such
Lender or the Borrower, as the case may be, has not in fact made such payment to
the Agent, the recipient of such payment shall, on demand by the Agent, repay to
the Agent the amount so made available together with interest thereon in respect
of each day during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such amount at a rate
per annum equal to (i) in the case of payment by a Lender, the Federal Funds
Effective Rate for such day or (ii) in the case of payment by the Borrower, the
interest rate applicable to the relevant Loan.
2.18 Provisions relating to Facility B Letter of Credit.
2.18.1 Participation in Facility B Letter of Credit.
(a) Each Facility B Lender shall be deemed to have
irrevocably and unconditionally purchased and received from the Issuing Lender,
without recourse or warranty, an undivided interest and participation to the
extent of such Facility B Lender's Percentage in the Facility B Letter of Credit
(including, without limitation, all obligations of the Borrower with respect
thereto and any security therefor).
(b) In the event that the Issuing Lender makes any
payment under the Facility B Letter of Credit and the Borrower shall not have
repaid such amount to the Issuing Lender pursuant to Section 2.18.2 (with the
proceeds of an Advance or otherwise), the Issuing Lender shall promptly notify
the Agent, which shall promptly notify each Facility B Lender, of such failure
(by facsimile or telephone promptly confirmed in writing), and each Facility B
Lender shall promptly and unconditionally pay to the Agent for the account of
the Issuing Lender the amount of such Facility B Lender's Percentage of such
payment in same day funds. If the Agent so notifies a Facility B Lender prior to
10:00 a.m. (Chicago time) on any Business Day, such Facility B Lender shall make
available to the Agent for the account of the Issuing Lender its Percentage of
the amount of such payment on such Business Day in same day funds, and if the
Agent so notifies a Facility B Lender after 10:00 a.m. (Chicago time) on any
Business Day, such Facility B Lender shall make available to the Agent for the
account of the Issuing Lender its Percentage of the amount of such payment on
the next Business Day in same day funds. If and to the extent such Facility B
Lender shall not have so made its Percentage of the amount of such payment
available to the Agent for the account of the Issuing Lender, such Facility B
Lender agrees to pay to the Agent for the account of the Issuing Lender
forthwith on demand such amount together with interest thereon, for each day
from the date such payment was first due until the date such amount is paid to
the Agent for the account of the Issuing Lender, at the Federal Funds Effective
Rate. The failure of any Facility B Lender to make available to the Agent for
the account of the Issuing Lender its Percentage of any
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such payment shall not relieve any other Facility B Lender of its obligation
hereunder to make available to the Agent for the account of the Issuing Lender
its Percentage of any payment on the date such payment is to be made.
(c) Whenever the Issuing Lender receives a payment on
account of an Unreimbursed Drawing, including any interest thereon, as to which
the Agent has received payments from the Facility B Lenders for the account of
the Issuing Lender pursuant to this Section 2.18.1, it shall promptly pay to the
Agent and the Agent shall promptly pay to each Facility B Lender which has
funded its participating interest therein, in the kind of funds so received, an
amount equal to such Facility B Lender's Percentage thereof. Each such payment
shall be made by the Issuing Lender on the Business Day on which it receives the
funds paid to it pursuant to the preceding sentence, if received prior to noon
(Chicago time) on such Business Day, and otherwise on the next succeeding
Business Day.
(d) The obligations of a Facility B Lender to make
payments to the Agent for the account of the Issuing Lender with respect to the
Facility B Letter of Credit shall be irrevocable, not subject to any
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Transaction Documents;
(ii) the existence of any claim, setoff, defense or
other right which the Borrower may have at any time against the beneficiary of
the Facility B Letter of Credit or any transferee of the Facility B Letter of
Credit (or any Person for whom any such transferee may be acting), the Agent,
the Issuing Lender, any Facility B Lender, or any other Person, whether in
connection with this Agreement, the Facility B Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including any
underlying transactions between the Borrower or any Affiliate of the Borrower
and the beneficiary of the Facility B Letter of Credit);
(iii) any draft, certificate of any other document
presented under the Facility B Letter of Credit proving to be forged, fraudulent
or invalid in any respect, or insufficient in accordance with the Uniform
Customs and Practice for Documentary Credits (1993 revision), International
Chamber of Commerce, Publication 500, or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for
the performance or observance of any of the terms of any of the Transaction
Documents; or
(v) the occurrence of any Default or Unmatured
Default;
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provided, however, that the Facility B Lenders shall not be
required to fund their participations in the Facility B Letter of Credit if the
corresponding payment made by the Issuing Lender under the Facility B Letter of
Credit was made as a result of the Issuing Lender's gross negligence or wilful
misconduct or failure to negotiate a draft in accordance with the standard of
care required by the Uniform Customs and Practice for Documentary Credits (1993
revision), International Chamber of Commerce, Publication 500.
(e) In the event any payment by the Borrower received
by the Issuing Lender with respect to the Facility B Letter of Credit and
distributed by the Agent to the Facility B Lenders on account of their
participations is thereafter set aside, avoided or recovered from the Issuing
Lender in connection with any receivership, liquidation, reorganization or
bankruptcy proceeding, each Facility B Lender which received such distribution
shall, upon demand by the Issuing Lender, contribute such Facility B Lender's
Percentage of the amount set aside, avoided or recovered together with interest
at the rate required to be paid by the Issuing Lender upon the amount required
to be repaid by it.
2.18.2 Reimbursement for Draws Under Facility B
Letter of Credit.
(a) Promptly upon receipt of notice from the Issuing
Lender of a drawing under the Facility B Letter of Credit, the Borrower hereby
agrees to reimburse the Facility B Lenders ratably in accordance with their
respective Percentages by making a payment to the Issuing Lender for the amount
of the draft drawn or purporting to be drawn thereunder for the account of the
Borrower which is paid by the Issuing Lender. Unless funded with an Advance made
pursuant to Section 2.18.2(b), amounts which the Borrower has agreed to
reimburse the Facility B Lenders pursuant to the preceding sentence shall be due
on demand and shall bear interest until paid at a rate per annum (calculated for
the actual number of days elapsed on the basis of year consisting of 365, or
when appropriate 366, days) equal to the Floating Rate plus 3% per annum.
(b) The payment by the Issuing Lender of a draft
drawn under or purporting to be drawn under the Facility B Letter of Credit
shall be deemed to constitute a Borrowing Notice for a Floating Rate Advance
under Facility B in the amount of such draft and, subject to satisfaction or
waiver of the conditions precedent set forth in Section 4.2, the Facility B
Lenders shall make such Floating Rate Advance and the Agent shall apply the
proceeds thereof to the payment of the Borrower's reimbursement obligations
under Section 2.18.2(a) with respect to such draft.
(c) The Borrower's obligation to make all payments
due under this Section 2.18.2 shall be absolute, unconditional and irrevocable,
and such payments shall be made strictly in accordance with the terms of this
Agreement, under all circumstances whatsoever, including, without limitation,
any or all of the following circumstances:
(i) any determination of invalidity or
unenforceability with respect to the Facility B Letter of Credit after payment
by the Issuing Lender;
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(ii) any lack of validity or enforceability of any or
all of the Transaction Documents;
(iii) any amendment to, waiver of, any consent under
or departure from any or all of the Transaction Documents;
(iv) any exchange, release or nonperfection of any
Collateral, or any release or amendment or waiver of or consent to departure
from any guaranty;
(v) the existence of any claim, set-off, defense or
other right which the Borrower may have at any time against the beneficiary of
the Facility B Letter of Credit or any transferee of the Facility B Letter of
Credit (or any Person for whom any such transferee may be acting), the Agent,
the Issuing Lender, the Facility B Lenders or any other Person; or
(vi) any statement or any other document presented
under the Facility B Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect whatsoever.
(d) The Issuing Lender shall use its best efforts to
give prompt notice to the Borrower of the presentation of a draft under the
Facility B Letter of Credit; provided, however, that failure to give such notice
shall not limit or otherwise affect the Borrower's obligations under this
Agreement except as explicitly provided herein.
2.18.3 Indemnification; Assumption of Risk.
(a) The Borrower hereby agrees to indemnify and hold
harmless the Agent, the Issuing Lender and each Facility B Lender and their
respective directors, officers and employees from and against any and all
claims, damages, losses, liabilities, costs or expenses of any kind which any
thereof may incur by reason of or in connection with the execution and delivery,
issuance or transfer of, or any payment or failure to pay under, the Facility B
Letter of Credit; provided, however, that the Borrower shall not be required to
indemnify the Issuing Lender for any claims, damages, losses, liabilities, costs
or expenses to the extent caused by the gross negligence, wilful misconduct, or
failure to negotiate any draft in accordance with the standard of care required
by the Uniform Customs and Practice for Documentary Credits (1993 revision),
International Chamber of Commerce, Publication 500 on the part of the Issuing
Lender in making payment under the Facility B Letter of Credit.
(b) The Borrower assumes all risks of the acts or
omissions of the beneficiary of the Facility B Letter of Credit with respect to
its use thereof or reliance thereon. Neither the Facility B Lenders, the Issuing
Lender, nor the Agent shall be responsible: for the validity or genuineness of
certificates or other documents delivered under or with the Facility B Letter of
Credit, even if such certificates or other documents should in fact prove to be
invalid, fraudulent or forged; for errors, omissions, interruptions or delays in
transmission or delivery of any
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messages, by mail, cable, telegraph, wireless or otherwise, whether or not they
are in code; for errors in translation or for errors in interpretation of
technical terms; for any failure or inability by any Facility B Lender, the
Issuing Lender or the Agent or anyone else to perform under the foreign laws,
customs or regulations or by reason of any control or restriction rightfully or
wrongfully exercised by any government or group asserting or exercising
governmental or paramount powers; or for any other consequences arising from
causes beyond any Facility B Lender's, the Issuing Lender's or the Agent's
control; nor shall any Facility B Lender, the Issuing Lender, or the Agent be
responsible for any error, neglect, or default of any correspondent of such
Person; and none of the above shall affect, impair or prevent the vesting of any
of the rights or powers of any Facility B Lender, the Issuing Lender or the
Agent under any of the Transaction Documents. The Issuing Lender may accept
statements, certificates or other documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary. In furtherance and not in limitation of
the foregoing provisions, the Borrower agrees that any action taken by any
Facility B Lender, the Issuing Lender or the Agent in good faith in connection
with the Facility B Letter of Credit, or the relevant drafts, certificates or
other documents, shall be binding on the Borrower and shall not result in any
liability of such Facility B Lender, the Issuing Lender or the Agent to the
Borrower. Nothing herein shall limit the Borrower's right to pursue its remedies
against the beneficiary of the Facility B Letter of Credit in connection with
any improper or fraudulent draw.
2.18.4 Acceleration. In addition to (and not in
limitation of) any other rights of the Agent and the Lenders under this
Agreement or the Security Agreement, upon the occurrence of any acceleration
pursuant to Section 8.1 the Borrower shall upon demand immediately deposit with
the Agent an amount equal to the Available Amount, if any, under the Facility B
Letter of Credit.
2.18.5 Cash Collateral Account. Any amounts deposited
with the Agent pursuant to Section 2.2.5, 2.2.6, 2.2.7 or 2.18.4 shall be held
by the Agent in a special interest bearing cash collateral account as security
for the Borrower's reimbursement obligations with respect to the Facility B
Letter of Credit. The Borrower shall have no control whatsoever over such cash
collateral account, which shall be governed by the provisions of the Security
Agreement. The Borrower shall deliver to the Agent any additional documents,
agreements and instruments, and take any other actions, deemed necessary by the
Agent or its counsel to create and maintain in favor of the Agent on behalf of
the Lenders a valid and perfected Lien on such cash collateral account.
ARTICLE III
YIELD PROTECTION; TAXES
3.1 Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any
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governmental or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation with any request or directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation
to any Taxes, or changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender in respect of its Eurodollar Loans or
its participation in the Facility B Letter of Credit, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest rate applicable to
Eurodollar Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining its Eurodollar Loans or issuing or participating
in the Facility B Letter of Credit or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection with its Eurodollar
Loans, or requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of Eurodollar Loans held, the
Facility B Letter of Credit issued or participated in, or interest received by
it, by an amount deemed material by such Lender, and the result of any of the
foregoing is to increase the cost to such Lender or applicable Lending
Installation of making or maintaining its Eurodollar Loans, its participation in
the Facility B Letter of Credit, or any Commitment or to reduce the return
received by such Lender or applicable Lending Installation in connection with
such Eurodollar Loans or Commitment, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduction in amount
received.
3.2 Changes in Capital Adequacy Regulations. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender determines is attributable to this Agreement, its Loans or any
Commitment to make Loans hereunder or to issue or participate in the Facility B
Letter of Credit (after taking into account such Lender's policies as to capital
adequacy). "Change" means (i) any change after the date of this Agreement in the
Risk-Based Capital Guidelines or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
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capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to a Type of Advance does not
accurately reflect the cost of making or maintaining such Advance, then the
Agent shall suspend the availability of the affected Type of Advance and require
any affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
3.4 Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurodollar Advance.
3.5 Taxes. (i) All payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any Note shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (a) 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 3.5) such Lender or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (d) the Borrower shall furnish
to the Agent the original or a certified copy of a receipt evidencing payment
thereof.
(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent and each Lender
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this Section 3.5) paid by
the Agent or such Lender and any liability
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(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within 30 days of
the date the Agent or such Lender makes demand therefor pursuant to Section 3.6.
(iv) At least five Business Days prior to the first date on which
interest is payable hereunder for the account of any Lender, each Lender that is
not incorporated under the laws of the United States of America or a state
thereof (each a "Non-U.S. Lender") agrees that it will deliver to each of the
Borrower and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the Agent (i) two
renewals or additional copies of such form (or any successor form) on or before
the date that such form expires or becomes obsolete, and (ii) after the
occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form or amendment with respect to it and such Lender advises
the Borrower and the Agent that it is not capable of receiving payments without
any deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (iv), above (unless
such failure is due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrower shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
3.6 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2, and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the reasonable judgment of such Lender, disadvantageous to such Lender. Each
Lender shall deliver a written statement of such Lender to the Borrower (with a
copy to the Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4, or
3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and
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binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Loan shall
be calculated as though each Lender funded its Eurodollar Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Borrower of such written statement. The obligations
of the Borrower under Sections 3.1, 3.2, 3.4, and 3.5 shall survive payment of
the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Initial Advance and Release of Cash Collateral. The Lenders shall
not be required to make the initial Advance hereunder and the Issuing Lender
shall not be required to effect the Facility X X/C Collateral Release unless the
Borrower has furnished to the Agent with sufficient copies for the Lenders:
(i) A copy of the articles of incorporation of the Borrower,
together with all amendments thereto, certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(ii) A certificate of good standing of the Borrower, certified
by the appropriate governmental officer in its jurisdiction of incorporation.
(iii) A copy, certified by the Secretary or Assistant
Secretary of the Borrower, of its by-laws, together with all amendments thereto.
(iv) Copies, certified by the Secretary or Assistant Secretary
of the Borrower, of its Board of Directors' resolutions (and resolutions of
other bodies, if any are deemed necessary by counsel for the Agent) authorizing
the execution of the Loan Documents.
(v) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by name and title and
bear the signature of the officers of the Borrower authorized to sign the Loan
Documents and to make borrowings hereunder, upon which certificate the Agent and
the Lenders shall be entitled to rely until informed of any change in writing by
the Borrower.
(vi) Notes payable to the order of each of the Lenders in the
amounts of their respective Commitments under each of the Facilities.
(vii) The Security Agreement and the Collateral Assignment,
each duly executed by an Authorized Officer of the Borrower.
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(viii) Duly executed UCC-1 financing statements and fixtures
filings describing the security interest of the Agent on behalf of the Lenders
in the collateral covered by the Collateral Documents in which a security
interest may be perfected by filing UCC-1 financing statements and fixture
filings, other than fixture filings covering billboards, and any other
documents, agreements or instruments that the Agent or its counsel requests to
perfect the security interest of the Agent in the collateral covered by the
Collateral Documents, other than ground leases and vehicles covered by
certificates of title.
(ix) Copies of searches of financing statements filed under
the Uniform Commercial Code, together with tax lien and judgment searches with
respect to the assets of the Borrower in such jurisdictions as the Agent may
request.
(x) A copy of the articles of incorporation of Holdings,
together with all amendments thereto, certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(xi) A certificate of good standing of Holdings, certified by
the appropriate governmental officer in its jurisdiction of incorporation.
(xii) A copy, certified by the Secretary or Assistant
Secretary of Holdings, of its by-laws, together with all amendments thereto.
(xiii) Copies, certified by the Secretary or Assistant
Secretary of Holdings, of its Board of Directors' resolutions (and resolutions
of other bodies, if any are deemed necessary by counsel for the Agent)
authorizing the execution of the Pledge Agreement.
(xiv) An incumbency certificate, executed by the Secretary or
Assistant Secretary of Holdings, which shall identify by name and title and bear
the signature of the officers of Holdings authorized to sign the Pledge
Agreement.
(xv) The Pledge Agreement duly executed by an authorized
officer of Holdings, together with stock certificates representing all of the
issued and outstanding capital stock of Holdings and stock power(s) with respect
thereto duly executed in blank.
(xvi) Copies of any amendments to the Mesirow 94 Documents and
the Mesirow 97 Documents providing for the transactions contemplated under this
Agreement, in form and substance satisfactory to the Agent in its sole
discretion, certified as true and correct and in full force and effect by the
Secretary or Assistant Secretary of the Borrower and Holdings.
(xvii) A copy of the Senior Note Indenture, in form and
substance satisfactory to the Agent in its sole discretion, certified as true
and correct and in full force and effect by the Secretary or Assistant Secretary
of the Borrower, together with any evidence requested by the Agent or its
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counsel that the Obligations constitute "Permitted Debt" permitted by clause (i)
of the definition of such term set forth in Section 1010 of the Senior Note
Indenture.
(xviii) A pro forma balance sheet and pro forma statement of
cash flow in form and substance satisfactory to the Agent for the most recently
ended fiscal quarter, an opening pro forma balance sheet as of the Closing Date
and a satisfactory opinion from the Chief Financial Officer of the Borrower and
Holdings, as to the solvency of Holdings and its Subsidiaries on a consolidated
basis, in each case after giving effect to the Western Outdoor Acquisition.
(xix) A pro forma Compliance Certificate (setting forth
calculations after giving effect to the Western Outdoor Acquisition as if it had
been completed on the first day of the most recently completed quarter)
indicating that the Borrower will be in compliance with Section 6.19.1 upon
consummation of the Western Outdoor Acquisition.
(xx) A written opinion of counsel to the Borrower and
Holdings, addressed to the Agent and the Lenders, in form and substance
satisfactory to the Agent and its counsel.
(xxi) Copies, certified by the Secretary of Assistant
Secretary of the Borrower, of the agreements, instruments, documents and
opinions evidencing or governing, or delivered in the Western Outdoor
Acquisition (including the Asset Purchase Agreement and the opinion(s) of
counsel to the Seller delivered thereunder, upon which the Agent and the Lenders
shall be entitled to rely, and the most recent financial statements of Western
Outdoor) and the organizational and capital structure of the Borrower and
Holdings after giving effect to the Western Outdoor Acquisition, which shall be
in form and substance satisfactory to the Agent, including all legal and tax
aspects thereof.
(xxii) Evidence satisfactory to the Agent and its counsel that
the Borrower, Holdings, and the Subsidiaries shall have obtained all necessary
directors and stockholders' approvals and made all material filings and
registrations with, or obtained all other material approvals, orders,
authorizations, franchises, consents, licenses, certificates and permits from,
federal, state and local regulatory or governmental bodies and authorities
(including, without limitation, state and local filing or recording offices),
and other Persons which are or may be required prerequisites to the consummation
of the Western Outdoor Acquisition and the validity, enforceability or
non-voidability of the Transaction Documents or the pledge of the capital stock
of the Borrower and its Subsidiaries or other assets subject to the Liens
created pursuant to the Collateral Documents.
(xxiii) Evidence satisfactory to the Agent that the Western
Outdoor Acquisition shall be consummated upon substantially the same terms as
contained in the Asset Purchase Agreement prior to or contemporaneously with the
making of the initial Advance hereunder.
(xxiv) (a) The insurance certificate described in Section
5.19, (b) insurance certificates or binders for all insurance required to be
maintained by the Borrower pursuant to
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Section 6.6.1 naming the Agent, on behalf of the Lenders, as loss payee for any
casualty policies and additional insured for any liability policies in form and
substance acceptable to the Agent, and (c) evidence of the Key Man Life
Insurance, together with an assignment thereof to the Agent, on behalf of the
Lenders, as loss payee.
(xxv) Payment to First Chicago of (a) the fees owing to it
pursuant to the Fee Letter, and (b) all costs, internal charges and
out-of-pocket expenses required to be paid by the Borrower pursuant to Section
9.6 and for which an invoice has been submitted to the Borrower.
(xxvi) Evidence that the Credit Agreement dated as of May 20,
1998 between the Borrower and First Chicago has been terminated and all
"Obligations", as defined therein, have been paid in full, other than with
respect to Facility B Letter of Credit.
(xxvii) Evidence that the Interest Exchange Agreement dated as
of May 14, 1997 between the Borrower and First Chicago has been terminated and
all Rate Hedging Obligations of the Borrower thereunder have been paid in full.
(xxviii) Written money transfer instructions, in substantially
the form of Exhibit "H" hereto, addressed to the Agent and signed by an
Authorized Officer, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
(xxix) Such other documents as any Lender or its counsel may
have reasonably requested.
4.2 Each Advance and Release of Cash Collateral. The Lenders shall not
be required to make any Advance under a Facility (other than an Advance that,
after giving effect thereto and to the application of the proceeds thereof, does
not increase the aggregate amount of outstanding Advances under such Facility)
and the Issuing Lender shall not be required to effect the Facility X X/C
Collateral Release unless on the applicable Borrowing Date (after giving effect
to the Western Outdoor Acquisition):
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V
are true and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall be true and correct on and as
of such earlier date.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 4.2(i) and (ii) have been satisfied. Any Lender may
require a duly completed Compliance Certificate (after giving effect to the
contemplated Advance) as a condition to making an Advance.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Corporate Existence and Standing. The Borrower and each of its
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
5.2 Authorization and Validity. The Borrower has the corporate power
and authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Borrower
of the Loan Documents and the performance of its obligations thereunder have
been duly authorized by proper corporate proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
5.3 No Conflict; Government Consent. Neither the execution and delivery
by the Borrower of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will (a) to the
Borrower's knowledge, violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its Subsidiaries
or (b) violate the Borrower's or any Subsidiary's articles of incorporation or
by-laws or the provisions of any indenture, instrument or agreement to which the
Borrower or any of its Subsidiaries is a party or is subject, or by which it, or
its Property, is bound, or conflict with or constitute a default thereunder, or
(c) result in the creation or imposition of any Lien in, of or on the Property
of the Borrower or a Subsidiary pursuant to the terms of any such indenture,
instrument or agreement (other than the Lien created by the Security Agreement).
No material order, consent, approval, license, authorization, or validation of,
or filing, recording or registration with, or exemption by, any governmental or
public body or authority, or any subdivision thereof, which has not been
obtained by the Borrower or any of its Subsidiaries, is required to be obtained
by the Borrower or any of its Subsidiaries in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
5.4 Financial Statements. The June 30, 1998 consolidated financial
statements of the Borrower and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
5.5 Material Adverse Change. Since June 30, 1998, there has been no
change in the business, Property, prospects, condition (financial or otherwise)
or results of operations of the
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Borrower and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
5.6 Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with Agreement Accounting Principles
and as to which no Lien exists. The United States income tax returns of the
Borrowers and their Subsidiaries have been audited by the Internal Revenue
Service through the fiscal year ended December 31, 1992. No tax liens have been
filed and no claims are being asserted with respect to any such taxes. The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries
in respect of any taxes or other governmental charges are adequate.
5.7 Litigation and Contingent Obligations. Except as set forth on
Schedule "4" hereto, there is no (i) litigation or arbitration pending, (ii)
governmental investigation, proceeding or inquiry of which the Borrower has
received notice pending, or (iii) to the knowledge of any of its officers,
litigation, arbitration, governmental investigation, proceeding or inquiry
threatened against or affecting the Borrower or any of its Subsidiaries, which
could reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of the Advances. Other than any liability
incident to such litigation, arbitration or proceedings, the Borrower has no
material contingent obligations not provided for or disclosed in the financial
statements referred to in Section 5.4.
5.8 Subsidiaries. Schedule "2" hereto contains an accurate list of all
Subsidiaries of the Borrower, setting forth their respective jurisdictions of
incorporation and the percentage of their respective capital stock owned by the
Borrower or other Subsidiaries. All of the issued and outstanding shares of
capital stock of such Subsidiaries have been duly authorized and issued and are
fully paid and non-assessable.
5.9 ERISA. The Borrower has no Unfunded Liabilities. Neither the
Borrower nor any other member of the Controlled Group has incurred, or is
reasonably expected to incur, any withdrawal liability to Multiemployer Plans.
Each Plan complies in all material respects with all applicable requirements of
law and regulations, no Reportable Event has occurred with respect to any Plan,
neither the Borrower nor any other member of the Controlled Group has withdrawn
from any Plan or initiated steps to do so, and no steps have been taken to
reorganize or terminate any Plan.
5.10 Accuracy of Information. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein not
misleading. The projections and pro forma determinations delivered to the Agent
and the Lenders are reasonable and are based on reasonable assumptions of the
Borrower's projections.
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5.11 Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12 Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Material Indebtedness.
5.13 Compliance With Laws, Etc. The Borrower and its Subsidiaries have
materially complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property. The Borrower and the
Subsidiaries have obtained all material franchises, licenses, consents,
approvals and authorizations granted or issued by any public or governmental
body, agency or authority necessary and appropriate to operate their respective
businesses and all such franchises, licenses, certificates, consents, approvals
and authorizations are in full force and effect.
5.14 Ownership of Properties. Except as set forth on Schedule "3"
hereto, on the date of this Agreement, the Borrower and its Subsidiaries will
have good title, free of all Liens other than those permitted by Section 6.18,
to all of the Property and assets reflected in the financial statements as owned
by it.
5.15 Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code); neither the execution of this Agreement nor the making of
Loans hereunder gives rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code; and "benefit plan investors"
(as defined in 29 C.F.R. Section 2510.3-101(f)) do not own 25% or more of the
value of any class of equity interests in the Borrower.
5.16 Environmental Matters. In the ordinary course of its business, the
officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or the subject of any
federal or state investigation evaluating whether any remedial action is
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needed to respond to a release of any toxic or hazardous waste or substance into
the environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.17 Investment Company Act. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as amended.
5.18 Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19 Insurance. The certificate signed by the President or Chief
Financial Officer of the Borrower, that attests to the existence and adequacy
of, and summarizes, the insurance program carried by the Borrower and that has
been furnished by the Borrower to the Agent and the Lenders, is complete and
accurate as of the date of this Agreement. This summary includes the insurer's
or insurers' name(s), policy number(s), expiration date(s), amount(s) of
coverage, type(s) of coverage, exclusion(s), and deductibles. This summary also
includes similar information, and describes any reserves, relating to any
self-insurance program that is in effect.
5.20 Solvency. (i) Immediately after the consummation of the
transactions to occur on the Closing Date and immediately following the making
of each Loan and after giving effect to the application of the proceeds of such
Loans, (a) the fair value of the assets of the Borrower and its Subsidiaries on
a consolidated basis, at a fair valuation, will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Borrower and its
Subsidiaries on a consolidated basis; (b) the present fair saleable value of the
property of the Borrower and its Subsidiaries on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of
the Borrower and its Subsidiaries on a consolidated basis on their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Borrower and its
Subsidiaries on a consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries will,
incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary.
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5.21 Year 2000. The Borrower has made a full and complete assessment of
the Year 2000 Issues and has a realistic and achievable program for remediating
the Year 2000 Issues on a timely basis (the "Year 2000 Program"). Based on such
assessment and on the Year 2000 Program the Borrower does not reasonably
anticipate that Year 2000 Issues will have a Material Adverse Effect.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) Within 120 days after the close of each of its fiscal
years, unqualified audit reports certified by independent certified public
accountants, acceptable to the Lenders, prepared in accordance with Agreement
Accounting Principles on a consolidated basis for Holdings and its Subsidiaries
and for the Borrower and its Subsidiaries, including balance sheets as of the
end of such period, related profit and loss and reconciliation of surplus
statements, and statements of cash flows, accompanied by (a) any management
letters prepared by said accountants, and (b) a certificate of said accountants
that, in the course of their examination necessary for their certification of
the foregoing, they have obtained no knowledge of any Default or Unmatured
Default, or if, in the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof.
(ii) Within 90 days after the close of each of its fiscal
years, a draft form of the annual statements required under Section 6.1(i).
(iii) Within 45 days after the close of each of its fiscal
quarters, for Holdings and its Subsidiaries and for the Borrower and its
Subsidiaries, consolidated unaudited balance sheets as at the close of each such
period and consolidated profit and loss and reconciliation of surplus statements
and a statement of cash flows for the period from the beginning of such fiscal
year to the end of such quarter and a management summary, all certified by the
chief financial officer of Holdings and the Borrower, respectively.
(iv) Together with the financial statements required under
Sections 6.1(i) and (iii), a Compliance Certificate showing the calculations
necessary to determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
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(v) Within 35 days after the end of each month, other than any
month on the last day of which a fiscal quarter ends, commencing with the month
ending October 31, 1998, for the Borrower and its Subsidiaries, a consolidated
profit and loss statement and statement of cash flows for the period from the
beginning of the then-current fiscal year to the end of such month, each
certified by the Chief Financial Officer of the Borrower.
(vi) As soon as possible and in any event within 10 days after
the Borrower knows that any Reportable Event has occurred with respect to any
Plan, a statement, signed by the Chief Financial Officer of the Borrower,
describing said Reportable Event and the action which the Borrower proposes to
take with respect thereto.
(vii) As soon as possible and in any event within 10 days
after receipt by the Borrower, a copy of (a) any notice or claim to the effect
that the Borrower or any of its Subsidiaries is or may be liable to any Person
as a result of the release by the Borrower, any of its Subsidiaries, or any
other Person of any toxic or hazardous waste or substance into the environment,
and (b) any notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Borrower or any of its
Subsidiaries, which, in either case, could reasonably be expected to have a
Material Adverse Effect.
(viii) As soon as available, but in any event not less than 30
days prior to the beginning of each fiscal year of the Borrower, a copy of the
plan and forecast (including a projected consolidated income statement and funds
flow statement) of the Borrower for such fiscal year.
(ix) Promptly upon the furnishing thereof to the shareholders
of the Borrower or Holdings, copies of all financial statements, reports and
proxy statements so furnished.
(x) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular reports
which Holdings, the Borrower, or any of their respective Subsidiaries files with
the Securities and Exchange Commission.
(xi) Such other information (including non-financial
information) as the Agent or any Lender may from time to time reasonably
request.
6.2 Use of Proceeds. The Borrower will use the proceeds of Advances (i)
under Facility A and Facility B, to finance the Western Outdoor Acquisition and
to pay transaction expenses related thereto, (ii) under Facility B, to pay its
reimbursement obligations under Section 2.18.2(a), (iii) under Facility C, for
working capital and general corporate purposes, and (iv) under all Facilities,
to repay outstanding Advances. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances to purchase or carry any
"margin stock" (as defined in Regulation U).
6.3 Notice of Default, Etc. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and
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of any other development, financial or otherwise (including, without limitation,
developments with respect to Year 2000 Issues), which could reasonably be
expected to have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated or organized,
validly existing and in good standing as a domestic corporation or partnership
in its jurisdiction of incorporation or organization and maintain all requisite
authority to conduct its business in each jurisdiction in which the failure to
maintain such authority could reasonably be expected to have a Material Adverse
Effect.
6.5 Taxes. The Borrower will, and will cause each Subsidiary to, file
in a timely manner complete and correct United States federal and applicable
foreign, state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with Agreement Accounting Principles.
6.6 Insurance.
6.6.1 Property Insurance. The Borrower will, and will
cause each Subsidiary to, maintain with financially sound and reputable
insurance companies insurance on all their Property in such amounts and covering
such risks as is consistent with sound business practices of businesses engaged
in similar activities in similar geographic areas, including insurance for
general public liability and worker's compensation, and on terms reasonably
satisfactory to the Agent (with the Agent listed as loss payee or as an
additional insured, as appropriate), and the Borrower will furnish to any Lender
upon request full information as to the insurance carried. The Borrower will
take all actions (including the execution of appropriate documentation) from
time to time reasonably requested by the Agent or the Required Lenders in order
to maintain the assignment or perfection of the security interest of the Agent
on behalf of the Lenders therein. Unless a Default or Unmatured Default has
occurred and is continuing, the Borrower shall be entitled to receive the
proceeds of any insurance on the Property of the Borrower and its Subsidiaries
provided and to the extent that such insurance proceeds are used to acquire
replacement Property within the later to occur of (i) three months after the
occurrence of the casualty underlying the payment of such proceeds and (ii)
three months after the receipt of such insurance proceeds by the Borrower or a
Subsidiary. The Borrower will deliver to the Agent any insurance proceeds not
used to acquire replacement Property within the applicable period. The Agent
shall direct the application of such insurance proceeds in accordance with
Section 2.2.6. Notwithstanding the foregoing, the Borrower shall not be
obligated to pay any amount under this Section 6.6.1 in excess of the Principal
Obligations Amount.
6.6.2 Key Man Life Insurance. The Borrower will
maintain or cause to be maintained in effect the Key Man Life Insurance at all
times during the term of this Agreement commencing on the Closing Date, and will
take all actions (including the execution of appropriate documentation) from
time to time reasonably requested by the Agent or any Lender in order to
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maintain the assignment or perfection of the security interest of the Agent on
behalf of the Lenders therein. The Required Lenders shall apply any proceeds
received in connection with the Key Man Life Insurance in accordance with
Section 2.2.6 but may, in their discretion, make such application either upon
receipt of such proceeds or at such later date as the Required Lenders may
elect.
6.7 Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply materially with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject.
6.8 Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
6.9 Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Lenders, by their respective representatives and agents, to inspect
any of the Property, corporate books and financial records of the Borrower and
each Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and to
be advised as to the same by, their respective officers at such reasonable times
and intervals as the Lenders may designate, the expenses of any such inspection
to be paid in accordance with Section 4.1.1 of the Security Agreement.
6.10 Dividends. The Borrower will not, nor will it permit any
Subsidiary to, declare or pay any dividends on its capital stock (other than
dividends payable in its own capital stock) or redeem, repurchase or otherwise
acquire or retire any of its capital stock at any time outstanding, except that
any Subsidiary may declare and pay dividends to the Borrower or to a
Wholly-Owned Subsidiary.
6.11 Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans.
(ii) Indebtedness existing on the Closing Date and described
in Schedule "3" hereto.
(iii) Contingent Obligations permitted under Section 6.17.
(iv) Rate Hedging Obligations.
(v) Indebtedness of any Wholly-Owned Subsidiary to the
Borrower.
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(vi) (a) Capitalized Leases of the Borrower or any Subsidiary,
and (b) Indebtedness of the Borrower or any Subsidiary under purchase money
mortgages or secured by purchase money security interests so long as (x) such
Indebtedness is not secured by any Property of the Borrower or any Subsidiary
other than the Property so acquired and (y) such Indebtedness is created prior
to, at the time of or within six months after the later of the acquisition, the
completion of construction or the commencement of full operation of the related
Property; provided however, that the aggregate amount of Indebtedness under
clauses (a) and (b) does not exceed (together with any Capitalized Lease
Obligations described in Schedule "3" hereto) $5,000,000 at any one time
outstanding.
6.12 Merger. The Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that a Subsidiary
may merge with and into the Borrower or a Wholly-Owned Subsidiary.
6.13 Sale of Assets. (a) The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise voluntarily dispose of its Property, to
any other Person except:
(i) Sales of vehicles or billboards the proceeds of which
(together with the proceeds of any Condemnations thereof) do not exceed $150,000
during any fiscal quarter or $500,000 during any four fiscal quarters.
(ii) Any Sale contemporaneous with, or the proceeds of which
are applied to the Obligations in connection with, the termination of this
Agreement.
(iii) Sales of equipment (other than vehicles and billboards)
and inventory in the ordinary course of business and upon fair and reasonable
terms no less favorable to the Borrower or such Subsidiary than the Borrower or
such Subsidiary would obtain in a comparable arms-length transaction.
(iv) A Sale of (A) the headquarters building of Western
Outdoor located in Omaha, Nebraska, (B) the office and production facility of
the Borrower located in Xxxxxx Springs, Kansas, and (C) other real property of
the Borrower within six months of the Borrower's acquisition thereof, provided,
in each case, that the Borrower complies with the provisions of Sections 2.2.3
and/or 6.13(b).
(v) A Sale of the Borrower's assets comprising its line of
business of leasing outdoor advertising space on benches at bus stops, provided
that (A) the deferred portion, if any, of the purchase price of such Sale is
evidenced by a promissory note that is delivered to the Agent pursuant to
Section 4.4 of Security Agreement, and (B) the Borrower complies with the
provisions set forth in Sections 2.2.3 and/or 6.13(b).
(vi) Sales of vehicles or billboards the proceeds of which
(together with the proceeds of any Condemnations thereof) exceed $150,000 during
any fiscal quarter or $500,000
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during any four fiscal quarters, provided that the Borrower complies with the
provisions set forth in Sections 2.2.3 and/or 6.13(b) with respect to the Net
Proceeds of such Sales in excess of such amounts.
(vii) Leases, sales or other dispositions of its Property not
permitted by any of Sections 6.13(a)(i) through 6.13(a)(vi) that, together with
all other such Property of the Borrower and its Subsidiaries previously leased,
sold or voluntarily disposed of as permitted by this clause (vii) of this
Section 6.13 during the twelve-month period ending with the month in which any
such lease, sale or other disposition occurs, do not constitute a Substantial
Portion, provided that the Borrower shall make a mandatory payment or prepayment
under the Facilities in an amount equal to 100% of the Net Proceeds thereof
pursuant to Section 2.2.3.
(b) In the event of a Sale permitted by any of Sections
6.13(a)(iv) through 6.13(a)(vi), the Borrower may, if it so elects, give the
Agent written notice in the form of Exhibit "I" hereto (a "Reinvestment Notice")
within 10 days of the date of such Sale that it intends to invest the Net
Proceeds thereof in assets that shall be used in the business of leasing outdoor
advertising space within 90 days of the date of such Sale if such Sale is
permitted by Section 6.13(a)(vi) or 180 days thereof (such 90-day or 180-day
period, a "Reinvestment Period") if such Sale is permitted by Section
6.13(a)(iv) or 6.13(a)(v). In the event that the Borrower does not reinvest the
proceeds of any such Sale within the applicable Reinvestment Period, it shall
make a mandatory payment or prepayment under the Facilities pursuant to Section
2.2.3.
(c) The Borrower shall not be required to comply with the
provisions of Section 2.2.3 or 6.13(b) with respect to Sales permitted by
Sections 6.13(a)(i) through 6.13 (a)(iii).
6.14 Sale of Accounts. The Borrower will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse except in the ordinary course of business
on terms and conditions customary in the Borrower's or such Subsidiary's
industry.
6.15 Sale and Leaseback. The Borrower will not, nor will it permit any
Subsidiary to, enter into any Sale and Leaseback Transactions, except one or
more Sale and Leaseback Transactions not in excess of $1,000,000 in the
aggregate with Courtesy Leasing, Inc. entered into prior to October 31, 1998 and
pursuant to which the Borrower is not obligated to make payments for one year
from the dates thereof.
6.16 Investments and Acquisitions. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
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(i) Short-term obligations of, or fully guaranteed by, the
United States of America.
(ii) Commercial paper rated A-1 or better by Standard & Poor's
Ratings Group or P-1 or better by Xxxxx'x Investors Service, Inc.
(iii) Demand deposit accounts maintained in the ordinary
course of business.
(iv) Certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus in
excess of $100,000,000.
(v) Investments in Subsidiaries and other Investments in
existence on the Closing Date and described in Schedule "2" hereto.
(vi) The Western Outdoor Acquisition.
(vii) Permitted Acquisitions.
(viii) Investments financed with the proceeds of any Sale and
Leaseback Transaction with Courtesy Leasing, Inc. permitted by Section 6.15.
6.17 Contingent Obligations. The Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Contingent Obligation (including,
without limitation, any Contingent Obligation with respect to the obligations of
a Subsidiary), except (i) the Facility B Letter of Credit, (ii) by endorsement
of instruments for deposit or collection in the ordinary course of business, and
(iii) franchise bonds, performance bonds, Letters of Credit required in the
ordinary course of business and similar bonds, indemnities, and sureties, in
each case not representing, securing, or otherwise involving Indebtedness for
borrowed money.
6.18 Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings and for which adequate reserves in accordance with
generally accepted principles of accounting shall have been set aside on its
books.
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due or
which are being contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on its books.
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(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Borrower or the Subsidiaries.
(v) Liens existing on the Closing Date and described in
Schedule "3" hereto.
(vi) Liens relating to Capitalized Leases which secure
Capitalized Lease Obligations up to the amount permitted by Section 6.11(vi)
hereof.
(vii) Liens in favor of the Agent and the Lenders granted in
connection with the Key Man Life Insurance.
(viii) Liens in favor of the Agent and the Lenders granted
pursuant to any Collateral Document.
6.19 Financial Covenants.
6.19.1 Total Leverage Ratio. The Borrower shall
maintain, on a consolidated basis for itself and the Subsidiaries, as of the end
of each fiscal quarter, a Total Leverage Ratio not exceeding the ratio set forth
opposite the date on which such fiscal quarter ends:
MAXIMUM
DATE RATE
---- ----
12/31/98 8.30:1.00
3/31/99 8.00:1.00
6/30/99 7.75:1.00
9/30/99 7.50:1.00
12/31/99 7.25:1.00
3/31/00 7.00:1.00
6/30/00 6.75:1.00
9/30/00 6.50:1.00
6.19.2 Pro Forma Debt Service Coverage Ratio. The
Borrower shall maintain, on a consolidated basis for itself and the
Subsidiaries, as of the end of each fiscal quarter,
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a Pro Forma Debt Service Coverage Ratio not less than the ratio set forth
opposite the date on which such fiscal quarter ends:
DATE RATIO
---- -----
12/31/98 1.05:1.00
3/31/99 1.20:1.00
6/30/99 1.00:1.00
9/30/99 and each 1.15:1.00
fiscal quarter end thereafter
6.19.3 Capital Expenditures. The Borrower will not,
nor will it permit any Subsidiary to, expend, or be committed to expend, for
Capital Expenditures during any one fiscal quarter in the aggregate for the
Borrower and its Subsidiaries in excess of the amount set forth below opposite
the date on which such fiscal quarter ends:
DATE AMOUNT
---- ------
12/31/98 $ 1,000,000
3/31/99 $ 900,000
6/30/99 $ 800,000
9/30/99 $ 500,000
12/31/99 and $ 800,000
each fiscal quarter
end thereafter
provided, however, that amounts permitted to be expended during any fiscal
quarter but not so expended may be expended during the immediately succeeding
four consecutive fiscal quarters as long as (i) no Default or Unmatured Default
exists or would exist after giving effect to such expenditure, and (ii) the
aggregate amount of Capital Expenditures for the Borrower and its Subsidiaries
during any period of four consecutive fiscal quarters does not exceed
$3,200,000.
6.20 Affiliates. The Borrower will not, nor will it permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate (other than a Wholly-Owned Subsidiary) except in the
ordinary course of business and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary than the Borrower or such
Subsidiary would obtain in a comparable arms-length transaction.
6.21 Financial Undertakings. The Borrower will not, nor will it permit
any Subsidiary to, enter into or remain liable upon any Financial Undertaking,
except Rate Hedging Obligations.
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6.22 Reinvestment of Net Proceeds. With respect to each Sale for which
the Borrower has given a Reinvestment Notice, the Borrower shall have
reinvested, within the Applicable Reinvestment Period, the Net Proceeds
identified in such Reinvestment Notice or shall have delivered such Net Proceeds
to the Agent to the extent not previously so delivered or reinvested.
6.23 Year 2000. The Borrower will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 Program and to ensure that Year 2000 Issues
will not have a Material Adverse Effect. At the request of the Agent or any
Lender, the Borrower will provide a description of the Year 2000 Program,
together with any updates or progress reports with respect thereto.
6.24 Collateral Security; Further Assurances.
6.24.1 Grant of Security. As security for the payment
of the Secured Obligations, the Borrower shall grant, or cause to be granted by
Holdings, to the Agent on behalf of the Lenders a Lien on and security interest
in all of the following, whether now or hereafter existing or acquired: (i) all
of the outstanding stock of the Borrower and all proceeds thereof, all as more
specifically described in the Pledge Agreement; and (ii) all of the outstanding
equity interests in any Subsidiary and all proceeds thereof, and all other
assets of the Borrower (other than real estate) and all proceeds thereof, all as
more specifically described in and subject to the provisions of the Security
Agreement.
6.24.2 Subsidiaries. The Borrower shall cause the
Secured Obligations to be and remain guaranteed in writing by each Subsidiary
pursuant to a guaranty in form and substance satisfactory to the Required
Lenders. As security for the payment of any Subsidiary's guaranty of the Secured
Obligations, the Borrower shall cause such Subsidiary to grant to the Agent on
behalf of the Lenders a Lien on and security interest in all of the assets of
such Subsidiary (other than real estate and interests therein), whether now or
hereafter existing or acquired, and all proceeds thereof, all as more
specifically described in and subject to the provisions of a security agreement
substantially identical to the Security Agreement with appropriate adjustments
for such Subsidiary. Upon execution of a guaranty and a security agreement by
any Subsidiary created or acquired (in accordance with the terms of this
Agreement) after the date of this Agreement, the Borrower shall also cause to be
delivered to the Agent such items evidencing legal existence, validity, power,
and authorization (including, without limitation, an opinion of counsel)
comparable to the items required with respect to Holdings pursuant to Section
4.1 as the Agent may reasonably require.
6.24.3 Additional Collateral; Further Assurances. At
the request of the Required Lenders, the Borrower shall, and shall cause such
Subsidiary to, execute and deliver to the Agent any additional documents,
agreements and instruments, including, without limitation, collateral
assignments of leases and leasehold mortgages, UCC-1 financing statements and
fixture filings, and take any other actions, deemed necessary by the Agent or
its counsel to create and maintain in favor of the Agent on behalf of the
Lenders a valid and perfected Lien on collateral
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purported to be covered by the Security Agreement or any security agreement
executed and delivered by a Subsidiary pursuant to Section 6.24.2 and/or any
additional assets of the Borrower or any Subsidiary, including, without
limitation, ground leases and vehicles covered by certificates of title.
6.24.4 The Borrower shall not, and shall not permit
any Subsidiary to, enter into an agreement with any other Person that would
prohibit it from complying with the provisions of Section 6.24.3 or pursuant to
which a breach would occur or a Lien would be created or imposed by virtue of
such compliance.
6.24.5 Exercise of Rights. In connection with any
exercise by the Agent or any Lender of its right and remedies under the
Collateral Documents, it may be necessary to obtain the prior consent or
approval of certain Persons, including but not limited to applicable
governmental authorities. Upon the exercise by the Agent or the Lenders of any
power, right, privilege or remedy pursuant to any Collateral Document which
requires any consent, approval, registration, qualification or authorization of
any Person, the Borrower will execute and deliver, or will cause the execution
and delivery of, all applications, certificates, instruments, and other
documents and papers that the Agent or the Lenders may be required to obtain for
such consent, approval, registration, qualification or authorization. Without
limiting the generality of the foregoing, the Borrower will use its best efforts
to obtain from the appropriate Persons the necessary consents and approvals, if
any, for the effectuation of any sale or sales of pledged interests upon the
occurrence and during the continuance of a Default; and for the exercise of any
other right or remedy of the Agent and Lenders under any Collateral Document.
The Agent and the Lenders will cooperate with the Borrower in preparing the
filing with any Persons of all requisite applications required to be obtained by
the Borrower under this Section 6.24.5.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made (or deemed made pursuant to
Section 4.2) by or on behalf of the Borrower or any of its Subsidiaries to the
Lenders or the Agent under or in connection with this Agreement, any Loan, the
Facility B Letter of Credit or any certificate or information delivered in
connection with this Agreement or any other Transaction Document shall be
materially false on the date as of which made.
7.2 Nonpayment of principal of any Note when due, or nonpayment of
interest upon any Note or other obligations under any of the Loan Documents
within five days after the same becomes due.
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7.3 The breach by the Borrower of any of the terms or provisions of
Section 6.2, 6.6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19,
6.21, 6.22, or 6.24.
7.4 The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within fifteen days after
written notice from the Agent or any Lender; provided, however, that if such
Default is susceptible of cure but cannot reasonably be cured within such
fifteen-day period, and the Borrower shall have commenced to cure such Default
within such fifteen-day period and thereafter diligently and expeditiously
proceeds to cure the same, such fifteen-day period shall be extended for an
additional period of time as is reasonably necessary for the Borrower in the
exercise of due diligence to cure such Default, such additional period not to
exceed thirty days.
7.5 Failure of Holdings, the Borrower or any of the Subsidiaries to pay
any Material Indebtedness when due; or the default by Holdings, the Borrower or
any of the Subsidiaries in the performance of any term, provision or condition
contained in any agreement under which any Material Indebtedness was created or
is governed, or any other event shall occur or condition exist, the effect of
which is to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior to its
stated maturity; or any Material Indebtedness of Holdings, the Borrower or any
of the Subsidiaries shall be declared to be due and payable or required to be
prepaid or repurchased (other than by a regularly scheduled payment) prior to
the stated maturity thereof; or Holdings, the Borrower or any of the
Subsidiaries shall not pay, or admit in writing its inability to pay, its debts
generally as they become due; or failure of the Obligations to constitute
"Permitted Debt" permitted by clause (i) of the definition of such term set
forth in Section 1010 of the Senior Note Indenture.
7.6 Holdings, the Borrower or any of the Subsidiaries shall (i) have an
order for relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any of its Property which constitutes a Substantial Portion, (iv)
institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 7.6 or (vi) fail to contest in good faith any appointment or proceeding
described in Section 7.7.
7.7 Without the application, approval or consent of Holdings, the
Borrower or any of the Subsidiaries, a receiver, trustee, examiner, liquidator
or similar official shall be appointed for Holdings, the Borrower or any of the
Subsidiaries or any of its Property which constitutes a Substantial Portion, or
a proceeding described in Section 7.6(iv) shall be instituted against Holdings,
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the Borrower or any of the Subsidiaries and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 60 consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of (each a "Condemnation"),
all or any portion of the Property of Holdings, the Borrower or any of the
Subsidiaries which, when taken together with all other Property of Holdings, the
Borrower and their Subsidiaries so condemned, seized, appropriated, or taken
custody or control of (but excluding proceeds from Condemnations of vehicles or
billboards to the extent that such proceeds have been reinvested in assets of a
like nature), during the twelve-month period ending with the month in which any
such Condemnation occurs, constitutes a Substantial Portion.
7.9 The Borrower or any of its Subsidiaries shall fail within 30 days
to pay, bond or otherwise discharge any judgment or order for the payment of
money in excess of $250,000, which is not stayed on appeal or otherwise being
appropriately contested in good faith.
7.10 There shall exist any Unfunded Liabilities or any Reportable Event
shall occur in connection with any Plan.
7.11 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan.
7.12 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs.
7.13 The Borrower or any of its Subsidiaries shall be the subject of
any proceeding or investigation pertaining to the release by the Borrower or any
of its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, or any violation of any federal, state or local
environmental, health or safety law or regulation, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
7.14 Any Change in Control shall occur.
7.15 The occurrence of any "default," as defined in any Transaction
Document (other than this Agreement or the Notes) or the breach of any of the
terms or provisions of any Transaction
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Document (other than this Agreement or the Notes), which default or breach
continues beyond any period of grace therein provided.
7.16 Nonpayment by the Borrower of any Rate Hedging Obligation beyond
any applicable grace period or the breach by the Borrower of any term, provision
or condition contained in any agreement, device or arrangement giving rise to
any Rate Hedging Obligation.
7.17 Any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest in any collateral purported
to be covered thereby, except as permitted by the terms of any Collateral
Document and except with regard to ground leases and vehicles covered by
certificates of title to the extent that the Required Lenders have elected not
to require the Borrower to deliver a valid and perfected first priority security
interest in such items of Collateral, or any Transaction Document (including the
Holdings Warrant only if issued) shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any such Transaction Document.
7.18 Holdings shall: (a) transact any business other than the ownership
of the stock of the Borrower and servicing the Converted Mesirow Equity
(including the payment of permitted dividends thereon) or any Indebtedness into
which the Converted Mesirow Equity may be converted pursuant to the terms
thereof, (b) have incurred any Indebtedness other than any Indebtedness into
which the Converted Mesirow Equity may be converted pursuant to the term
thereof, or (c) have amended or modified the Mesirow 94 Documents or the Mesirow
97 Documents, other than to permit the execution, delivery and performance by
Holdings and the Borrower of the Transaction Documents to which each is a party,
or voluntarily prepaid, defeased or in substance defeased, purchased, redeemed,
retired or otherwise acquired, any Converted Mesirow Equity or any Indebtedness
into which the Converted Mesirow Equity may be converted pursuant to the terms
thereof.
7.19 Twenty-five percent (25%) or more of the value of any class of
equity interests in the Borrower shall be held by "benefit plan investors"
within the meaning of 29 C.F.R. Section 2510.3-101(f).
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration. If any Default described in Section 7.6 or 7.7 occurs
with respect to the Borrower, the obligations of the Lenders to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the Agent
or any Lender. If any other Default occurs, the Required Lenders (or the Agent
at the direction of the Required Lenders) may terminate or suspend the
obligations of the Lenders to make Loans hereunder, or declare the Obligations
to be due and payable, or both, whereupon the
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Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives.
If, after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans hereunder as a
result of any Default (other than any Default as described in Section 7.6 or 7.7
with respect to the Borrower) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, the Required Lenders
(in their sole discretion) shall so direct, the Agent shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
8.2 Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Transaction Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of each Lender affected thereby:
(i) Extend the Facility Termination Date or the final maturity
of any Loan or Note or the expiration date of the Facility B Letter of Credit or
the due date of an Unreimbursed Drawing or forgive all or any portion of the
principal amount thereof, or reduce the rate or extend the time of payment of
interest or fees thereon.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
(iii) Reduce the amount of, or extend the payment dates for,
the mandatory payments required under Section 2.2, or increase the amount of the
Commitment of any Lender hereunder, or permit the Borrower to assign its rights
under this Agreement.
(iv) Amend this Section 8.2.
(v) Except as provided in the Collateral Documents, release
all or substantially all of the Collateral.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 12.3.2 without obtaining the consent of any
other party to this Agreement.
8.3 Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Transaction Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence therein,
and the making of a Loan notwithstanding the existence of a Default or the
inability of the Borrower to satisfy the conditions precedent to such Loan shall
not constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver,
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amendment or other variation of the terms, conditions or provisions of the
Transaction Documents whatsoever shall be valid unless in writing signed by the
Lenders required pursuant to Section 8.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the Transaction
Documents or by law afforded shall be cumulative and all shall be available to
the Agent and the Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement shall survive delivery of the Notes,
the making of the Loans and release of the cash collateral for the Facility B
Letter of Credit herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 Headings. Section headings in the Transaction Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Transaction Documents.
9.4 Entire Agreement. The Transaction Documents embody the entire
agreement and understanding among the Borrower, Holdings, the Agent and the
Lenders and supersede all prior agreements and understandings among the
Borrower, Holdings, the Agent and the Lenders relating to the subject matter
thereof, other than the Fee Letter.
9.5 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
9.6 Expenses; Indemnification. The Borrower shall reimburse the Agent
and the Arranger for any costs, internal charges and out-of-pocket expenses
(including attorneys' fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent) paid or incurred by the Agent or the
Arranger in connection with the preparation, negotiation, execution,
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delivery, syndication, review, amendment, modification, and administration of
the Transaction Documents. The Borrower also agrees to reimburse the Agent, the
Arranger and the Lenders for any costs, internal charges and out-of-pocket
expenses (including attorneys' fees and time charges of attorneys for the Agent,
the Arranger and the Lenders, which attorneys may be employees of the Agent or
the Lenders) paid or incurred by the Agent, the Arranger or any Lender in
connection with the collection and enforcement of the Transaction Documents. The
Borrower further agrees to indemnify the Agent, the Arranger and each Lender,
their respective directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
the Agent, the Arranger or any Lender is a party thereto) which any of them may
pay or incur arising out of or relating to this Agreement, the other Transaction
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan or the use of
the Facility B Letter of Credit except to the extent they are determined by a
court of competent jurisdiction by final and non-appealable judgment to have
resulted from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section 9.6 shall
survive the termination of this Agreement.
9.7 Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
9.8 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.9 Severability of Provisions. Any provision in any Transaction
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Transaction Documents are
declared to be severable.
9.10 Nonliability of Lenders. The relationship between the Borrower and
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations. The Borrower agrees that neither
the Agent, the Arranger nor any Lender shall have liability to the Borrower
(whether sounding in tort, contract or otherwise) for losses suffered by the
Borrower in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Transaction
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Agent, the Arranger nor any Lender shall have any liability with respect to, and
the Borrower
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hereby waives, releases and agrees not to xxx for, any special, indirect or
consequential damages (but not actual damages) suffered by the Borrower in
connection with, arising out of, or in any way related to the Transaction
Documents or the transactions contemplated thereby.
9.11 Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to other Lenders and their respective
Affiliates, (ii) to legal counsel, accountants, and other professional advisors
to that Lender or to a Transferee, (iii) to regulatory officials, (iv) to any
Person as requested pursuant to or as required by law, regulation, or legal
process, (v) to any Person in connection with any legal proceeding to which that
Lender is a party, (vi) permitted by Section 12.4, and (vii) of information
which has become public through no fault of that Lender.
9.12 Nonreliance. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U) for the repayment
of the Loans provided for herein.
ARTICLE X
THE AGENT
10.1 Appointment; Nature of Relationship. The First National Bank of
Chicago is hereby appointed by each of the Lenders as its contractual
representative (herein referred to as the "Agent") hereunder and under each
other Transaction Document, and each of the Lenders irrevocably authorizes the
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Transaction Documents.
The Agent agrees to act as such contractual representative upon the express
conditions contained in this Article X. Notwithstanding the use of the defined
term "Agent," it is expressly understood and agreed that the Agent shall not
have any fiduciary responsibilities to any Lender by reason of this Agreement or
any other Transaction Document and that the Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Transaction Documents. In
its capacity as the Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Transaction Documents. Each of the Lenders hereby agrees
to assert no claim against the Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Lender hereby
waives.
10.2 Powers. The Agent shall have and may exercise such powers under
the Transaction Documents as are specifically delegated to the Agent by the
terms of each thereof, together with such powers as are reasonably incidental
thereto. The Agent shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any action
specifically provided by the Transaction Documents to be taken by the Agent.
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10.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Transaction Document or in connection herewith or therewith
except for its or their own gross negligence or willful misconduct.
10.4 No Responsibility for Loans, Recitals, etc.. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (i) any statement, warranty
or representation made in connection with any Transaction Document or any
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of any obligor under any Transaction Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (iv) the
existence or possible existence of any Default or Unmatured Default, (v) the
validity, effectiveness or genuineness of any Transaction Document or any other
instrument or writing furnished in connection therewith; (vi) the value,
sufficiency, creation, perfection or priority of any interest in any collateral
security; or (vii) the financial condition of the Borrower or any guarantor of
any of the Obligations or of any of the Borrower's or any such guarantor's
respective Subsidiaries. The Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower to the Agent at
such time, but is voluntarily furnished by the Borrower to the Agent (either in
its capacity as Agent or in its individual capacity).
10.5 Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Transaction Document in accordance with written instructions signed by the
Required Lenders (or, if required by Section 8.2, each Lender affected thereby),
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders. The Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Transaction
Document unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
unless it shall be requested in writing to do so by the Required Lenders.
10.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Transaction Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Transaction Document.
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10.7 Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8 Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Transaction
Documents, (ii) for any other expenses incurred by the Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery, administration
and enforcement of the Transaction Documents (including, without limitation, for
any expenses incurred by the Agent in connection with any dispute between the
Agent and any Lender or between two or more of the Lenders) and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of the Transaction Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, (including,
without limitation, for any such amounts incurred by or asserted against the
Agent in connection with any dispute between the Agent and any Lender or between
two or more of the Lenders) or the enforcement of any of the terms thereof or of
any such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Agent. The obligations of the Lenders
under this Section 10.8 shall survive payment of the Obligations and termination
of this Agreement.
10.9 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10 Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Transaction
Document with respect to its Commitments and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity (including pursuant to the Holdings Warrant) or
other transaction, in addition to those contemplated by this Agreement or any
other Transaction Document, with the Borrower or any of its Subsidiaries in
which the Borrower or such Subsidiary is not restricted hereby from engaging
with any other Person. The Agent, in its individual capacity, is not obligated
to remain a Lender.
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10.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger, or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other
Transaction Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent, the Arranger, or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Transaction Documents.
10.12 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. Upon any such resignation, the Required Lenders shall have
the right to appoint, on behalf of the Borrower and the Lenders and with the
consent of the Borrower (which shall not be unreasonably withheld), a successor
Agent. Notwithstanding the previous sentence, the Agent may at any time without
the consent of the Borrower or any Lender, appoint any of its Affiliates which
is a commercial bank as a successor Agent hereunder. If no successor Agent shall
have been so appointed by the Required Lenders within thirty days after the
resigning Agent's giving notice of its intention to resign, then the resigning
Agent may appoint, on behalf of the Borrower and the Lenders, a successor Agent.
If the Agent has resigned and no successor Agent has been appointed, the Lenders
may perform all the duties of the Agent hereunder and the Borrower shall make
all payments in respect of the Obligations to the applicable Lender and for all
other purposes shall deal directly with the Lenders. No successor Agent shall be
deemed to be appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank having capital
and retained earnings of at least $100,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the resigning Agent. Upon the effectiveness of the resignation of
the Agent, the resigning Agent shall be discharged from its duties and
obligations hereunder and under the Transaction Documents. After the
effectiveness of the resignation of an Agent, the provisions of this Article X
shall continue in effect for the benefit of such Agent in respect of any actions
taken or omitted to be taken by it while it was acting as the Agent hereunder
and under the other Transaction Documents. In the event that there is a
successor to the Agent by merger, or the Agent assigns its duties and
obligations to an Affiliate pursuant to this Section 10.12, then the term
"Corporate Base Rate" as used in this Agreement shall mean the prime rate, base
rate or other analogous rate of the new Agent.
10.13 Delegation to Affiliates. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
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10.14 Execution of Collateral Documents. The Lenders hereby empower and
authorize the Agent to execute and deliver to the Borrower on their behalf (i)
the Security Agreement and all related financing statements and any financing
statements, agreements, documents or instruments as shall be necessary or
appropriate to effect the purposes of the Security Agreement, (ii) the Pledge
Agreement(s) and all related financing statements and any financing statements,
agreements, documents or instruments as shall be necessary or appropriate to
effect the purposes of the Pledge Agreement(s) and (iii) any guarantees and
security agreements executed and delivered by Subsidiaries pursuant to Section
6.25.2.
10.15 Collateral Releases. The Lenders hereby empower and authorize the
Agent to execute and deliver to the Borrower on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any
releases of Collateral which shall be permitted by the terms hereof or of any
other Transaction Document or which shall otherwise have been approved by the
Required Lenders (or, if required by the terms of Section 8.2, all of the
Lenders) in writing.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (or, with respect to Facility B, its
Percentage of an Unreimbursed Drawing) under any Facility (other than payments
received pursuant to Sections 3.1, 3.2, 3.4, or 3.5) in a greater proportion
than that received by any other Lender under such Facility, such Lender agrees,
promptly upon demand, to purchase a portion of the Loans (and, with respect to
Facility B, Unreimbursed Drawing) held by the other Lenders under such Facility
so that after such purchase each Lender will hold its ratable proportion of
Loans (and, with respect to Facility B, Unreimbursed Drawing) under such
Facility. If any Lender, whether in connection with setoff or amounts which
might be subject to setoff or otherwise, receives collateral or other protection
for its Obligations or such amounts which may be subject to setoff, such Lender
agrees, promptly upon demand, to take such action necessary such that all
Lenders share in the benefits of such collateral ratably in proportion to their
Loans. In case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
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ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. Notwithstanding clause (ii) of this Section, any Lender may
(at no cost to the Borrower) at any time, without the consent of the Borrower or
the Agent, assign all or any portion of its rights under this Agreement and any
Note to a Federal Reserve Bank; provided, however, that no such assignment shall
release the transferor Lender from its obligations hereunder. The Agent may
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until such payee complies with Section 12.3 in the case of an assignment
thereof or, in the case of any other transfer, a written notice of the transfer
is filed with the Agent. Any assignee or transferee of a Note agrees by
acceptance thereof to be bound by all the terms and provisions of the
Transaction Documents. Any request, authority or consent of any Person, who at
the time of making such request or giving such authority or consent is the
holder of any Note, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in exchange
therefor.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender
may, in the ordinary course of its business and in accordance with applicable
law, at any time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment or Facility B Letter of Credit Participation Amount of
such Lender or any other interest of such Lender under the Transaction
Documents, provided that any such sale shall be at no cost to the Borrower. In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Transaction Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the holder of any such Note for all purposes under the Transaction Documents,
all amounts payable by the Borrower under this Agreement shall be determined as
if such Lender had not sold such participating interests, and the Borrower and
the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Transaction
Documents.
12.2.2 Voting Rights. Each Lender shall retain the
sole right to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Transaction Documents other than
any amendment, modification or waiver with respect to any Loan, Commitment, or
the Facility B Letter of Credit in which such Participant has an interest which
forgives principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan, Commitment, or the Facility B Letter of
Credit, postpones any date fixed for any
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regularly-scheduled payment of principal of, or interest or fees on, any such
Loan, Commitment, or the Facility B Letter of Credit, releases any guarantor of
any such Loan, Commitment, or the Facility B Letter of Credit, or releases all
or substantially all of the Collateral, if any, securing any such Loan or the
Facility B Letter of Credit.
12.2.3 Benefit of Setoff. The Borrower agrees that
each Participant shall be deemed to have the right of setoff provided in Section
11.1 in respect of its participating interest in amounts owing under the
Transaction Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Transaction Documents,
provided that each Lender shall retain the right of setoff provided in Section
11.1 with respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1, agrees
to share with each Lender, any amount received pursuant to the exercise of its
right of setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all or any
part of its rights and obligations under the Transaction Documents, provided
that (i) any such assignment shall be at no cost the Borrower, and (ii) unless
such Lender assigns all of its rights and obligations under the Transaction
Documents to a Purchaser, each such assignment shall be in a minimum amount of
$5,000,000. Such assignment shall be substantially in the form of Exhibit "G"
hereto or in such other form as may be agreed to by the parties thereto. The
consents of the Borrower and the Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender or an
Affiliate thereof; provided, however, that if a Default has occurred and is
continuing, the consent of the Borrower shall not be required. Such consent
shall not be unreasonably withheld.
12.3.2 Effect; Effective Date. Upon (i) delivery to
the Agent of a notice of assignment, substantially in the form attached as Annex
"I" to Exhibit "G" hereto (a "Notice of Assignment"), together with any consents
required by Section 12.3.1, and (ii) payment by the assigning Lender or the
Purchaser of a $4,000 fee to the Agent for processing such assignment by one of
the parties thereto, such assignment shall become effective on the effective
date specified in such Notice of Assignment. The Notice of Assignment shall
contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment(s) and Loans under the
applicable assignment agreement are "plan assets" as defined under ERISA and
that the rights and interests of the Purchaser in and under the Loan Documents
will not be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Transaction Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the
Transaction Documents, to the same extent as if it were an original party
hereto, and no further consent or action by the Borrower, the Lenders or the
Agent shall be required to
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release the transferor Lender with respect to the percentage of the applicable
Aggregate Commitment and Loans and Facility B Letter of Credit Participation
Amount assigned to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.2, the transferor Lender, the Agent and
the Borrower shall make appropriate arrangements so that replacement Notes are
issued to such transferor Lender and new Notes or, as appropriate, replacement
Notes, are issued to such Purchaser, in each case in principal amounts
reflecting their applicable Commitment, as adjusted pursuant to such assignment.
Within a reasonable time after the effective date of any assignment, the Agent
shall, and is hereby authorized and directed to, revise Schedule "1" reflecting
the revised Commitments of each of the Lenders. Such revised Schedule "1" shall
replace the prior Schedule "1" and become part of this Agreement.
12.4 Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Transaction Documents by operation of law (each a "Transferee")
and any prospective Transferee any and all information in such Lender's
possession concerning the creditworthiness of the Borrower and its Subsidiaries,
provided that each Transferee and prospective Transferee agrees to be bound by
Section 9.11 of this Agreement.
12.5 Tax Treatment. If any interest in any Transaction Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5.
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.13 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Agent, at its address or facsimile number set forth
on the signature pages hereof, (y) in the case of any Lender, at its address or
facsimile number set forth below its signature hereto, or (z) in the case of any
party, at such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the Agent and the Borrower in accordance
with the provisions of this Section 13.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (ii) if given by mail, 72 hours after such communication
is deposited in the mails with first class postage prepaid, addressed as
aforesaid, or (iii) if given by any other means, when delivered at the address
specified in this Section; provided that notices to the Agent under Article II
shall not be effective until received.
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13.2 Change of Address. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by facsimile
transmission or telephone, that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY TRANSACTION DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE
BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY
LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT
IN CHICAGO, ILLINOIS.
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15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
TRI-STATE OUTDOOR MEDIA GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
President
0000 Xxxxxxx 00 Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO,
INDIVIDUALLY AND AS AGENT
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Xxxxxx Xxxxxx
Vice President
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Communications Division
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
DOCUMENT NUMBER: 368008.8
10-13-98/10:16AM
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