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AMENDED AND RESTATED
CREDIT AGREEMENT
among
UNIVERSAL OUTDOOR, INC.
VARIOUS LENDING INSTITUTIONS,
LA SALLE NATIONAL BANK,
AS CO-AGENT
and
BANKERS TRUST COMPANY,
AS AGENT
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Dated as of May 21, 1997
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$225,000,000
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . . . 1
1.01 Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Borrowing Amounts, etc. . . . . . . . . . . . . . . . . . 3
1.03 Notice of Borrowing, etc. . . . . . . . . . . . . . . . . . . . . 3
1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . 4
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . 6
1.08 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.09 Interest Periods. . . . . . . . . . . . . . . . . . . . . . . . . 7
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . . . 9
1.11 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.12 Change of Lending Office. . . . . . . . . . . . . . . . . . . . . 11
1.13 Replacement of Banks. . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2. Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . 12
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 12
2.02 Minimum Stated Amount . . . . . . . . . . . . . . . . . . . . . . 13
2.03 Letter of Credit Requests; Notices of Issuance. . . . . . . . . . 13
2.04 Agreement to Repay Letter of Credit Drawings. . . . . . . . . . . 13
2.05 Letter of Credit Participations . . . . . . . . . . . . . . . . . 14
2.06 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3. Fees; Commitments. . . . . . . . . . . . . . . . . . . . . . . . 17
3.01 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.02 Voluntary Reduction of Commitments. . . . . . . . . . . . . . . . 19
3.03 Mandatory Adjustments of Commitments, etc.. . . . . . . . . . . . 19
SECTION 4. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . 19
4.02 Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . 20
(i)
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4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . . . 23
4.04 Net Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 25
5.01 Operative Date. . . . . . . . . . . . . . . . . . . . . . . . . 25
5.02 All Credit Events . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6. Representations, Warranties and Agreements . . . . . . . . . . . 26
6.01 Corporate Status. . . . . . . . . . . . . . . . . . . . . . . . . 26
6.02 Corporate Power and Authority . . . . . . . . . . . . . . . . . . 27
6.03 No Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.04 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.05 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . 27
6.06 Governmental Approvals. . . . . . . . . . . . . . . . . . . . . . 28
6.07 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 28
6.08 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 28
6.09 True and Complete Disclosure. . . . . . . . . . . . . . . . . . . 28
6.10 Financial Condition; Financial Statements . . . . . . . . . . . . 29
6.11 Security Interests. . . . . . . . . . . . . . . . . . . . . . . . 30
6.12 Tax Returns and Payments. . . . . . . . . . . . . . . . . . . . . 30
6.13 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . 30
6.14 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.15 Patents, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.16 Pollution and Other Regulations . . . . . . . . . . . . . . . . . 31
6.17 Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.18 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.19 Existing Indebtedness . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . 33
7.01 Information Covenants . . . . . . . . . . . . . . . . . . . . . . 33
7.02 Books, Records and Inspections. . . . . . . . . . . . . . . . . . 36
7.03 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.04 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 37
7.05 Consolidated Corporate Franchises . . . . . . . . . . . . . . . . 37
7.06 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . . . 37
7.07 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.08 Good Repair . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.09 End of Fiscal Years; Fiscal Quarters. . . . . . . . . . . . . . . 38
7.10 Additional Security; Further Assurances . . . . . . . . . . . . . 38
7.11 Corporate Separateness. . . . . . . . . . . . . . . . . . . . . . 39
(ii)
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7.12 Compliance with Environmental Laws. . . . . . . . . . . . . . . . 40
SECTION 8. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . 40
8.01 Changes in Business . . . . . . . . . . . . . . . . . . . . . . . 41
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc. . . . . . 41
8.03 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.04 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8.05 Capital Expenditures. . . . . . . . . . . . . . . . . . . . . . . 45
8.06 Investments and Loans . . . . . . . . . . . . . . . . . . . . . . 46
8.07 Subsidiaries; etc.. . . . . . . . . . . . . . . . . . . . . . . . 47
8.08 Prepayments of Indebtedness, etc. . . . . . . . . . . . . . . . . 47
8.09 Dividends, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.10 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . 48
8.11 Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . . . 49
8.12 Minimum Modified Adjusted EBITDA. . . . . . . . . . . . . . . . . 49
8.13 Senior Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 50
9.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . . . 50
9.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.04 Default Under Other Agreements. . . . . . . . . . . . . . . . . . 50
9.05 Bankruptcy, etc.. . . . . . . . . . . . . . . . . . . . . . . . . 51
9.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.07 Credit Documents. . . . . . . . . . . . . . . . . . . . . . . . . 51
9.08 Holdings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.01 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . 82
11.03 Lack of Reliance on the Agent. . . . . . . . . . . . . . . . . . 82
11.04 Certain Rights of the Agent. . . . . . . . . . . . . . . . . . . 83
11.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.06 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 83
11.07 The Agent in Its Individual Capacity . . . . . . . . . . . . . . 84
11.08 Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.09 Resignation by the Agent . . . . . . . . . . . . . . . . . . . . 84
(iii)
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SECTION 12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 85
12.01 Payment of Expenses, etc.. . . . . . . . . . . . . . . . . . . . 85
12.02 Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . . . 85
12.03 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
12.04 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . 86
12.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . 88
12.06 Payments Pro Rata. . . . . . . . . . . . . . . . . . . . . . . . 88
12.07 Calculations; Computations . . . . . . . . . . . . . . . . . . . 89
12.08 Governing Law; Submission to Jurisdiction; Venue;
Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . 89
12.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 90
12.10 Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
12.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . . . 90
12.12 Amendment or Waiver. . . . . . . . . . . . . . . . . . . . . . . 90
12.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
12.14 Domicile of Loans. . . . . . . . . . . . . . . . . . . . . . . . 91
12.15 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 91
12.16 Lender Register. . . . . . . . . . . . . . . . . . . . . . . . . 92
ANNEX I -- Commitments
ANNEX II -- Bank Addresses
ANNEX III -- Government Approvals
ANNEX IV -- Subsidiaries
ANNEX V -- Properties
ANNEX VI -- Existing Indebtedness
ANNEX VII -- Insurance Policies
ANNEX VIII -- Existing Liens
ANNEX IX -- Management Fees
EXHIBIT A-1 -- Form of Notice of Borrowing
EXHIBIT A-2 -- Form of Letter of Credit Request
EXHIBIT B-1 -- Form of AR Note
EXHIBIT B-2 -- Form of Revolving Note
EXHIBIT B-3 -- Form of Swingline Note
EXHIBIT C-1 -- Form of Borrower Pledge Agreement
EXHIBIT C-2 -- Amendment to Borrower Pledge Agreement
EXHIBIT D-1 -- Form of Holdings Pledge Agreement
EXHIBIT D-2 -- Form of Amendment to Holdings Pledge Agreement
EXHIBIT E-1 -- Form of Security Agreement
(iv)
EXHIBIT E-2 -- Form of Amendment to Security Agreement
EXHIBIT F -- Form of Holdings Guaranty
EXHIBIT G -- Adjusted EBITDA
EXHIBIT H -- Form of Assignment Agreement
(v)
AMENDMENT AND RESTATEMENT dated as of May 21, 1997 to CONSOLIDATED
CREDIT AGREEMENT dated as of October 31, 1996, among UNIVERSAL OUTDOOR, INC., an
Illinois corporation, the lending institutions listed from time to time on Annex
I hereto (each a "Bank" and, collectively, the "Banks"), LA SALLE NATIONAL BANK,
as Co-Agent and BANKERS TRUST COMPANY, as agent (the "Agent"). Unless otherwise
defined herein, all capitalized terms used herein and defined in Section 10 are
used herein as so defined.
W I T N E S S E T H :
WHEREAS, the Borrower and certain financial institutions are party to
a Consolidated Credit Agreement dated as of October 31, 1996 (as amended and in
effect immediately prior to the Operative Date, the "Consolidated Credit
Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Consolidated
Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree that the Consolidated Credit
Agreement shall be and is hereby amended and restated as follows:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.011 COMMITMENT. (A) Subject to and upon the terms and conditions
herein set forth, each Bank severally agrees to make or continue loans (together
with the Swingline Loans referred to below, each a "Loan" and, collectively, the
"Loans") to the Borrower, which Loans shall be drawn or continued, as the case
may be, to the extent such Bank has a commitment under such Facility, under the
AR Facility and the Revolving Facility, as set forth below:
(a) Loans under the AR Facility (each an "AR Loan" and, collectively,
the "AR Loans") (i) may be made at any time and from time to time on and
after the Operative Date and prior to the AR Termination Date, (ii) except
as hereinafter provided, may, at the option of the Borrower, be incurred
and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided that all AR Loans made as part of the same Borrowing shall,
unless otherwise specifically provided herein, consist of Loans of the same
Type, (iii) may be repaid and, prior to the AR Termination Date, be
reborrowed in accordance with the provisions hereof and (iv) shall not
exceed for any Bank at any time outstanding that aggregate principal amount
which, when combined with the aggregate outstanding principal amount of all
other
AR Loans of such Bank, equals the AR Commitment, if any, of such Bank at
such time.
(b) Loans under the Revolving Facility (each a "Revolving Loan" and,
collectively, the "Revolving Loans") (i) may be made at any time and from
time to time on and after the Operative Date and prior to the Expiry Date,
(ii) except as hereinafter provided, may, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans, provided that all Revolving Loans made as part of the
same Borrowing shall, unless otherwise specifically provided herein,
consist of Loans of the same Type, (iii) may be repaid and be reborrowed in
accordance with the provisions hereof and (iv) shall not exceed for any
Bank at any time outstanding that aggregate principal amount which, when
combined with the aggregate outstanding principal amount of all other
Revolving Loans of such Bank and with such Bank's Adjusted RC Percentage of
the sum of (x) the Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time
and (y) the outstanding principal amount of Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Revolving Loans) at
such time, equals (1) if such Bank is a Non-Defaulting Bank, the Adjusted
Revolving Commitment of such Bank at such time and (2) if such Bank is a
Defaulting Bank, the Revolving Commitment of such Bank at such time.
(B) (a) Subject to and upon the terms and conditions herein set
forth, BTCo in its individual capacity agrees to make at any time and from time
to time on or after the Operative Date and prior to the Swingline Expiry Date, a
loan or loans to the Borrower (each a "Swingline Loan," and, collectively, the
"Swingline Loans"), which Swingline Loans (i) shall be made and maintained as
Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed in aggregate principal amount at any
time outstanding, when combined with the aggregate principal amount of all
Revolving Loans made by Non-Defaulting Banks then outstanding and the Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Swingline Loans) at such time, an amount equal to the Adjusted
Total Revolving Commitment then in effect and (iv) shall not exceed in aggregate
principal amount at any time outstanding the Maximum Swingline Amount. BTCo
will not make a Swingline Loan after it has received written notice from the
Required Banks that one or more of the applicable conditions to Credit Events
specified in Section 5.01 are not then satisfied.
(b) On any Business Day, BTCo may, in its sole discretion, give
notice to the Banks that its outstanding Swingline Loans shall be funded with a
Borrowing of Revolving Loans (PROVIDED that each such notice shall be deemed to
have been automatically
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given upon the occurrence of an Event of Default under Section 9.05 or upon the
exercise of any of the remedies provided in the last paragraph of Section 9), in
which case a Borrowing of Revolving Loans constituting Base Rate Loans (each
such Borrowing, a "Mandatory Borrowing") shall be made on the immediately
succeeding Business Day by all Banks PRO RATA based on each Bank's Adjusted RC
Percentage, and the proceeds thereof shall be applied directly to repay BTCo for
such outstanding Swingline Loans. Each Bank hereby irrevocably agrees to make
Base Rate Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by BTCo notwithstanding (i) that the amount
of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount
otherwise required hereunder, (ii) that any conditions specified in Section 5
may not be then satisfied, (iii) that a Default or an Event of Default has
occurred and is continuing, (iv) the date of such Mandatory Borrowing and (v)
any reduction in the Total Revolving Commitment or the Adjusted Total Revolving
Commitment after any such Swingline Loans were made. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code in respect of the Borrower), each Bank
(other than BTCo) hereby agrees that it shall forthwith purchase from BTCo
(without recourse or warranty) such assignment of the outstanding Swingline
Loans as shall be necessary to cause the Banks to share in such Swingline Loans
ratably based upon their respective Adjusted RC Percentages, provided that all
interest payable on the Swingline Loans shall be for the account of BTCo until
the date the respective assignment is purchased and, to the extent attributable
to the purchased assignment, shall be payable to the Bank purchasing same from
and after such date of purchase.
1.012 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal amount
of each Borrowing shall not be less than the Minimum Borrowing Amount. More
than one Borrowing may be incurred on any day, provided that at no time shall
there be outstanding more than seven Borrowings of Eurodollar Loans hereunder.
1.013 NOTICE OF BORROWING, ETC. (a) Whenever the Borrower desires
to incur AR Loans or Revolving Loans, it shall give the Agent at its Notice
Office, prior to 11:00 A.M. (New York time), at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Eurodollar Loans and at least one Business Day's prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of
Base Rate Loans to be made hereunder. Each such notice (each a "Notice of
Borrowing") shall be in the form of Exhibit A-1 and shall be irrevocable and
shall specify (i) the Facility pursuant to which each Borrowing is being made,
(ii) the aggregate principal amount of the Loans to be made pursuant to each
Borrowing, (iii) the date of Borrowing (which shall be a Business Day) and (iv)
whether any respective Borrowing shall consist of Base Rate Loans or Eurodollar
Loans and, if Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Agent shall promptly give each
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Bank written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing, of such Bank's proportionate share thereof and of the other
matters covered by the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give BTCo, prior to 11:00 A.M. (New York
time) on the day such Swingline Loan is to be made, written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Loan to be
made hereunder. Each such notice shall be irrevocable and shall specify in each
case (x) the date of such Borrowing (which shall be a Business Day) and (y) the
aggregate principal amount of the Swingline Loan to be made pursuant to such
Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(B)(b), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section.
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Agent may prior to receipt of written confirmation act without liability upon
the basis of such telephonic notice, believed by the Agent in good faith to be
from an Authorized Officer of the Borrower. In each such case, the Borrower
hereby waives the right to dispute the Agent's record of the terms of such
telephonic notice.
1.014 DISBURSEMENT OF FUNDS. (a) No later than 1:00 P.M. (New York
time) on the date specified in a Notice of Borrowing, each Bank with a
Commitment under the respective Facility will make available its PRO RATA share
of each Borrowing requested to be made on such date in the manner provided
below, provided that Swingline Loans shall be made available by BTCo no later
than 2:00 P.M. (New York time) on the date requested. All such amounts shall be
made available to the Agent in U.S. dollars and immediately available funds at
the Payment Office and the Agent promptly will make available to the Borrower by
depositing to its account at the Payment Office the aggregate of the amounts so
made available in the type of funds received. Unless the Agent shall have been
notified by any Bank prior to the date of Borrowing that such Bank does not
intend to make available to the Agent its portion of the Borrowing or Borrowings
to be made on such date, the Agent may assume that such Bank has made such
amount available to the Agent on such date of Borrowing, and the Agent, in
reliance upon such assumption, may (in its sole discretion and without any
obligation to do so) make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Agent by such
Bank and the Agent has made available same to the Borrower, the Agent shall be
entitled to recover such corresponding amount from such Bank. If such Bank does
not pay such corresponding amount forthwith upon the Agent's demand therefor,
the Agent shall promptly notify the Borrower, and the Borrower shall immediately
pay such corresponding amount to the Agent.
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The Agent shall also be entitled to recover on demand from such Bank or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Agent to the Borrower to the date such corresponding amount is recovered by the
Agent, at a rate per annum equal to (x) if paid by such Bank, the overnight
Federal Funds Effective Rate or (y) if paid by the Borrower, the then applicable
rate of interest, calculated in accordance with Section 1.08, for the respective
Loans.
(b) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
the Borrower may have against any Bank as a result of any default by such Bank
hereunder.
1.015 NOTES. (a) The Borrower's obligation to pay the principal of,
and interest on, the Loans made to it by each Bank shall be evidenced (i) if AR
Loans, by a promissory note substantially in the form of Exhibit B-1 with blanks
appropriately completed in conformity herewith (each an "AR Note" and,
collectively, the "AR Notes"), (ii) if Revolving Loans, by a promissory note
substantially in the form of Exhibit B-2 with blanks appropriately completed in
conformity herewith (each a "Revolving Note" and, collectively, the "Revolving
Notes") and (iii) if Swingline Loans, by a promissory note substantially in the
form of Exhibit B-3 with blanks appropriately completed in conformity herewith
(the "Swingline Note").
(b) The AR Note issued to each Bank with an AR Commitment shall (i)
be executed by the Borrower, (ii) be payable to the order of such Bank and be
dated the Consolidation Date, (iii) be in a stated principal amount equal to the
AR Commitment of such Bank and be payable in the principal amount of the AR
Loans evidenced thereby, (iv) mature on the AR Maturity Date, (v) bear interest
as provided in the appropriate clause of Section 1.08 in respect of the Base
Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to mandatory repayment as provided in Section 4.02 and (vii) be entitled
to the benefits of this Agreement and the other Credit Documents.
(c) The Revolving Note issued to each Bank shall (i) be executed by
the Borrower, (ii) be payable to the order of such Bank and be dated the
Consolidation Date, (iii) be in a stated principal amount equal to the Revolving
Commitment of such Bank and be payable in the principal amount of the Revolving
Loans evidenced thereby, (iv) mature on the Expiry Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to mandatory repayment as provided in Section 4.02 and (vii) be entitled
to the benefits of this Agreement and the other Credit Documents.
(d) The Swingline Note issued to BTCo shall (i) be executed by the
Borrower, (ii) be payable to the order of BTCo and be dated the Consolidation
Date, (iii) be
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in a stated principal amount equal to the Maximum Swingline Amount and be
payable in the principal amount of Swingline Loans evidenced thereby, (iv)
mature on the Swingline Expiry Date, (v) bear interest as provided in Section
1.08 in respect of the Base Rate Loans evidenced thereby and (vi) be entitled to
the benefits of this Agreement and the other Credit Documents.
(e) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect the Borrower's obligations in respect of such
Loans.
1.016 CONVERSIONS. The Borrower shall have the option to convert on
any Business Day all or a portion at least equal to the applicable Minimum
Borrowing Amount of the outstanding principal amount of the Loans owing pursuant
to a single Facility into a Borrowing or Borrowings pursuant to such Facility of
another Type of Loan (with Swingline Loans at all times to be maintained as Base
Rate Loans), provided that (i) except as otherwise provided in Section 1.10(b),
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
an Interest Period applicable thereto and no partial conversion of a Borrowing
of Eurodollar Loans shall reduce the outstanding principal amount of the
Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may not be converted
into Eurodollar Loans if any violation of Section 9.01 or any Event of Default
is then in existence to the extent that the Agent or the Required Banks have
determined that any such conversion at such time would be disadvantageous to the
Banks and (iii) Borrowings of Eurodollar Loans resulting from this Section 1.06
shall be limited in number as provided in Section 1.02. Each such conversion
shall be effected by the Borrower giving the Agent at its Notice Office, prior
to 11:00 A.M. (New York time), at least three Business Days' (or two Business
Days', in the case of a conversion into Base Rate Loans) prior written notice
(or telephonic notice promptly confirmed in writing) (each a "Notice of
Conversion") specifying the Loans to be so converted, the Type of Loans to be
converted into and, if to be converted into a Borrowing of Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Agent shall give each
Bank prompt notice of any such proposed conversion affecting any of its Loans.
1.017 PRO RATA BORROWINGS. All AR Loans and all Revolving Loans
shall be made by the Banks PRO RATA on the basis of their respective Adjusted AR
Percentages and Adjusted RC Percentages, as the case may be. It is understood
that no Bank shall be responsible for any default by any other Bank in its
obligation to make Loans hereunder and that each Bank shall be obligated to make
the Loans provided to be made by it hereunder, regardless of the failure of any
other Bank to fulfill its commitments hereunder.
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1.018 INTEREST. (a) The unpaid principal amount of each Base Rate
Loan shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise) at a rate per annum which shall at all
times be the Applicable Base Rate Margin plus the Base Rate in effect from time
to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the
Applicable Eurodollar Margin plus the relevant Eurodollar Rate.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall bear interest at a rate per annum equal to the Base Rate in
effect from time to time plus the sum of (i) 2% and (ii) the Applicable Base
Rate Margin, provided that no Loan shall bear interest after maturity (whether
by acceleration or otherwise) at a rate per annum less than 2% plus the rate of
interest applicable thereto at maturity.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on the last
Business Day of each February, May, August and November, (ii) in respect of each
Eurodollar Loan, on the last day of each Interest Period applicable thereto and,
in the case of an Interest Period of six months, on the date occurring three
months after the first day of such Interest Period and (iii) in respect of each
Loan, on any prepayment or conversion (other than the prepayment and conversion
of Loans that are Base Rate Loans) (on the amount prepaid or converted), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Agent, upon determining the interest rate for any Borrowing
of Eurodollar Loans for any Interest Period, shall promptly notify the Borrower
and the Banks thereof.
1.019 INTEREST PERIODS. (a) At the time the Borrower gives a Notice
of Borrowing or Notice of Conversion in respect of the making of, or conversion
tinto, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 10:00 A.M. (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Agent written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall, at
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the option of the Borrower, be a one, two, three or six month period.
Notwithstanding anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iii) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) no Interest Period shall extend beyond (x) in the case of AR
Loans, the AR Maturity Date and (y) in the case of Revolving Loans, the
Expiry Date;
(v) no Interest Period with respect to any Borrowing of AR Loans may
be elected that would extend beyond any date upon which a Scheduled
Repayment is required to be made if, after giving effect to the selection
of such Interest Period, the aggregate principal amount of AR Loans
maintained as Eurodollar Loans with Interest Periods ending after such date
would exceed the aggregate principal amount of AR Loans permitted to be
outstanding after such Scheduled Repayment; and
(vi) no Interest Period may be elected at any time when a violation
of Section 9.01 or an Event of Default is then in existence if the Agent or
the Required Banks have determined that such an election at such time would
be disadvantageous to the Banks.
(b) If upon the expiration of any Interest Period, the Borrower has
failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the Borrower shall
be deemed to have elected to convert such Borrowing into a Borrowing of Base
Rate Loans effective as of the expiration date of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in
the case of clause (i) below, the Agent or (y) in the case of clauses (ii) and
(iii) below, any Bank shall
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have determined (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest
Period that, by reason of any changes arising after the Restatement
Effective Date affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a change
in the rate of taxes or similar charges) because of (x) any change since
the Restatement Effective Date in any applicable law, governmental rule,
regulation, guideline or order (or in the interpretation or administration
thereof and including the introduction of any new law or governmental rule,
regulation, guideline or order) (such as, for example, but not limited to,
a change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate) and/or (y) other circumstances
affecting such Bank, the interbank Eurodollar market or the position of
such Bank in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has become unlawful by compliance by such Bank in good faith with any
law, governmental rule, regulation, guideline (or would conflict with any
such governmental rule, regulation, guideline or order not having the force
of law but with which such Bank customarily complies even though the
failure to comply therewith would not be unlawful), or has become
impracticable as a result of a contingency occurring after the Restatement
Effective Date which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, such Bank (or the Agent in the case of clause (i)
above) shall (x) on such date and (y) within ten Business Days of the date on
which such event no longer exists give notice (by telephone confirmed in
writing) to the Borrower and to the Agent of such determination (which notice
the Agent shall promptly transmit to each of the other Banks). Thereafter (x)
in the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion given by the Borrower with respect
to Eurodollar Loans which have not yet been incurred shall be deemed rescinded
by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to
such Bank, upon written demand therefor, such additional amounts (in the form of
an increased rate of, or a different method of
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calculating, interest or otherwise as such Bank in its sole discretion shall
determine) as shall be required to compensate such Bank for such increased costs
or reductions in amounts receivable hereunder (a written notice as to the
additional amounts owed to such Bank, showing the basis for the calculation
thereof, submitted to the Borrower by such Bank shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) and (z) in the case of
clause (iii) above, the Borrower shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii) the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or (iii), or
(ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' notice to the Agent, require the affected Bank to convert each
such Eurodollar Loan into a Base Rate Loan, provided that if more than one Bank
is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the Restatement
Effective Date, the adoption or effectiveness of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Bank's capital or assets as a consequence of
its commitments or obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, effectiveness, change or compliance
(taking into consideration such Bank's policies with respect to capital
adequacy), then from time to time, within 15 days after demand by such Bank
(with a copy to the Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction. Each Bank,
upon determining in good faith that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall set forth the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish any of the Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(c) upon the subsequent receipt of such notice.
1.11 COMPENSATION. (a) The Borrower shall compensate each Bank,
upon its written request (which request shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or
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other funds required by such Bank to fund its Eurodollar Loans but excluding in
any event the loss of anticipated profits) which such Bank may sustain: (i) if
for any reason (other than a default by such Bank or the Agent) a Borrowing of
Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not withdrawn by the Borrower or
deemed withdrawn pursuant to Section 1.10(a)); (ii) if any prepayment, repayment
or conversion of any of its Eurodollar Loans occurs on a date which is not the
last day of an Interest Period applicable thereto; (iii) if any prepayment of
any of its Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay its Eurodollar Loans when required by the terms
of this Agreement or (y) an election made pursuant to Sections 1.10(b) and 1.13.
(b) Notwithstanding anything in this Agreement to the contrary, to
the extent any notice required by Section 1.10, 2.06 or 4.04 is given by any
Bank more than 180 days after such Bank obtained, or reasonably should have
obtained, knowledge of the occurrence of the event giving rise to the additional
costs of the type described in such Section, such Bank shall not be entitled to
compensation under Section 1.10, 2.06 or 4.04 for any amounts incurred or
accruing prior to the giving of such notice to the Borrower.
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.06 or 4.04 with respect to such Bank, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office for any Loans affected by such
event, provided that such designation is made on such terms that such Bank and
its lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving rise to the operation
of any such Section. Nothing in this Section 1.12 shall affect or postpone any
of the obligations of the Borrower or the right of any Bank provided in Section
1.10, 2.06 or 4.04.
1.13 REPLACEMENT OF BANKS. (x) Upon the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
2.06 or Section 4.04 with respect to any Bank which results in such Bank
charging to the Borrower increased costs in excess of those being generally
charged by the other Banks, (y) if a Bank becomes a Defaulting Bank and/or (z)
in the case of a refusal by a Bank to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been approved
by the Required Banks or Super Majority Banks, as the case may be, as provided
in Section 12.12, the Borrower shall have the right, if no Default or Event of
Default then exists, to replace such Bank (the "Replaced Bank") with one or more
other transferee or transferees who shall be acceptable to the Agent and none of
whom shall constitute a Defaulting Bank at the time of such replacement
(collectively, the "Replacement Bank") reasonably acceptable to the Agent,
provided that (i) at the time of any replacement pursuant to this Section 1.13,
the Replacement Bank shall enter into one or more Assignment
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Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to
said Section 12.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire all of the Commitments and outstanding Loans of
the Replaced Bank and, in connection therewith, shall pay to the Replaced Bank
in respect thereof an amount equal to the sum of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans of the Replaced
Bank and (B) an amount equal to all accrued, but theretofore unpaid, Fees owing
to the Replaced Bank pursuant to Section 3.01 and (ii) all obligations of the
Borrower owing to the Replaced Bank (other than those specifically described in
clause (i) above in respect of which the assignment purchase price has been, or
is concurrently being, paid) shall be paid in full to such Replaced Bank
concurrently with such replacement. Upon the execution of the respective
Assignment Agreement, the payment of amounts referred to in clauses (i) and (ii)
above and, if so requested by the Replacement Bank, delivery to the Replacement
Bank of the appropriate Note or Notes executed by the Borrower, the Replacement
Bank shall become a Bank hereunder and the Replaced Bank shall cease to
constitute a Bank hereunder, except with respect to indemnification provisions
applicable to the Replaced Bank under this Agreement, which shall survive as to
such Replaced Bank.
SECTION 2. LETTERS OF CREDIT.
1.021 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that a Letter of Credit
Issuer at any time and from time to time on or after the Operative Date and
prior to the Expiry Date to issue, for the account of the Borrower and in
support of such standby obligations of the Borrower that are acceptable to the
Agent (each such letter of credit a "Letter of Credit" and, collectively, the
"Letters of Credit"), and subject to and upon the terms and conditions herein
set forth the Letter of Credit Issuer agrees to issue from time to time,
irrevocable letters of credit denominated in U.S. dollars in such form as may be
approved by the Letter of Credit Issuer and the Agent. Letters of Credit shall
include the Existing Letters of Credit, which shall be deemed issued, for
purposes of Sections 2.05(a), 3.01(b) and 3.01(c), on the Operative Date.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued, the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $5,000,000 or (y) when added to the aggregate principal amount
of all Revolving Loans made by Non-Defaulting Banks and Swingline Loans then
outstanding, the Adjusted Total Revolving Commitment at such time; and (ii) each
Letter of Credit shall have an expiry date occurring not later than one year
after such Letter of Credit's date of issuance (other than Existing Letters of
Credit) although any Letter of Credit may be extendable for successive periods
of up to 12 months, but not beyond the Business Day next preceding the Expiry
Date, on terms acceptable to the Letter of Credit
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Issuer and in no event shall any Letter of Credit have an expiry date occurring
later than the Business Day next preceding the Expiry Date.
(c) Notwithstanding the foregoing, in the event a Bank Default
exists, the Letter of Credit Issuer shall not be required to issue any Letter of
Credit unless the Letter of Credit Issuer has entered into arrangements
satisfactory to it and the Borrower to eliminate the Letter of Credit Issuer's
risk with respect to the participation in Letters of Credit of the Defaulting
Bank or Banks, including by cash collateralizing such Defaulting Bank's or
Banks' Percentage of the Letter of Credit Outstandings.
1.022 MINIMUM STATED AMOUNT. The initial Stated Amount of each
Letter of Credit shall be not less than $25,000 or such lesser amount acceptable
to the Letter of Credit Issuer.
1.023 LETTER OF CREDIT REQUESTS; NOTICES OF ISSUANCE. (a) Whenever
it desires that a Letter of Credit be issued after the Initial Borrowing Date,
the Borrower shall give the Agent and the Letter of Credit Issuer written notice
(including by way of telecopier) in the form of Exhibit A-2 thereof prior to
1:00 P.M. (New York time) at least three Business Days (or such shorter period
as may be acceptable to the Letter of Credit Issuer) prior to the proposed date
of issuance (which shall be a Business Day) (each a "Letter of Credit Request"),
which Letter of Credit Request shall include any other documents that the Letter
of Credit Issuer customarily requires in connection therewith.
(b) The Letter of Credit Issuer shall, promptly after each issuance
of a Letter of Credit by it, give the Agent, each Bank and the Borrower written
notice of the issuance of such Letter of Credit, accompanied by a copy to the
Agent of the Letter of Credit or Letters of Credit issued by it.
1.024 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The
Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making
payment to the Agent at the Payment Office, for any payment or disbursement made
by the Letter of Credit Issuer under any Letter of Credit (each such amount so
paid or disbursed until reimbursed, an "Unpaid Drawing") immediately after, and
in any event on the date on which the Borrower is notified by the Letter of
Credit Issuer of such payment or disbursement with interest on the amount so
paid or disbursed by the Letter of Credit Issuer, to the extent not reimbursed
prior to 1:00 P.M. (New York time) on the date of such payment or disbursement,
from and including the date paid or disbursed to but not including the date the
Letter of Credit Issuer is reimbursed therefor at a rate per annum which shall
be the Applicable Margin in excess of the Base Rate as in effect from time to
time (plus an additional 2% per annum if not reimbursed by the third Business
Day after the date of such notice of payment or disbursement), such interest
also to be payable on demand.
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(b) The Borrower's obligation under this Section 2.04 to reimburse
the Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Letter of Credit Issuer, the
Agent or any Bank, including, without limitation, any defense based upon the
failure of any drawing under a Letter of Credit to conform to the terms of the
Letter of Credit or any non-application or misapplication by the beneficiary of
the proceeds of such drawing; PROVIDED, HOWEVER, that the Borrower shall not be
obligated to reimburse the Letter of Credit Issuer for any wrongful payment made
by the Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Letter of Credit Issuer.
1.025 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, (and on the
Operative Date with respect to any Existing Letter of Credit), the Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Bank,
and each such Bank (each a "Participant") shall be deemed irrevocably and
unconditionally to have purchased and received from such Letter of Credit
Issuer, without recourse or warranty, an undivided interest and participation,
to the extent of such Bank's Adjusted RC Percentage, in such Letter of Credit,
each substitute letter of credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto (although
the Letter of Credit Fee shall be payable directly to the Agent for the account
of the Banks as provided in Section 3.01(b) and the Participants shall have no
right to receive any portion of any Facing Fees) and any security therefor or
guaranty pertaining thereto. Upon any change in the Revolving Commitments or
Adjusted RC Percentages of the Banks pursuant to Section 12.04(b) or upon a Bank
Default, it is hereby agreed that, with respect to all outstanding Letters of
Credit and Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this Section 2.05 to reflect the new Adjusted RC
Percentages of the assigning and assignee Bank or of all Banks, as the case may
be.
(b) In determining whether to pay under any Letter of Credit, the
Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by the Letter of Credit Issuer under or in
connection with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct, shall not create for the Letter of Credit
Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to the Letter of Credit Issuer pursuant to Section 2.04(a), the
Letter of Credit Issuer shall promptly notify the Agent, and the Agent shall
promptly notify each Participant of such failure, and each
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Participant shall promptly and unconditionally pay to the Agent for the account
of the Letter of Credit Issuer, the amount of such Participant's Adjusted RC
Percentage of such payment in U.S. dollars and in same day funds; PROVIDED,
HOWEVER, that no Participant shall be obligated to pay to the Agent its Adjusted
RC Percentage of such unreimbursed amount for any wrongful payment made by the
Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Letter of Credit Issuer. If the Agent so notifies any Participant required to
fund an Unpaid Drawing under a Letter of Credit prior to 11:00 A.M. (New York
time) on any Business Day, such Participant shall make available to the Agent
for the account of the Letter of Credit Issuer such Participant's Adjusted RC
Percentage of the amount of such payment on such Business Day in same day funds.
If and to the extent such Participant shall not have so made its Adjusted RC
Percentage of the amount of such Unpaid Drawing available to the Agent for the
account of the Letter of Credit Issuer, such Participant agrees to pay to the
Agent for the account of the Letter of Credit Issuer, forthwith on demand such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to the Agent for the account of the Letter of Credit
Issuer at the overnight Federal Funds Effective Rate. The failure of any
Participant to make available to the Agent for the account of the Letter of
Credit Issuer its Adjusted RC Percentage of any Unpaid Drawing under any Letter
of Credit shall not relieve any other Participant of its obligation hereunder to
make available to the Agent for the account of the Letter of Credit Issuer its
Adjusted RC Percentage of any payment under any Letter of Credit on the date
required, as specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to the Agent for the account
of the Letter of Credit Issuer such other Participant's Adjusted RC Percentage
of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Agent has received for the account of
the Letter of Credit Issuer any payments from the Participants pursuant to
clause (c) above, the Letter of Credit Issuer shall pay to the Agent and the
Agent shall promptly pay to each Participant which has paid its Adjusted RC
Percentage thereof, in U.S. dollars and in same day funds, an amount equal to
such Participant's Adjusted RC Percentage of the principal amount thereof and
interest thereon accruing at the overnight Federal Funds Effective Rate after
the purchase of the respective participations.
(e) The obligations of the Participants to make payments to the Agent
for the account of the Letter of Credit Issuer with respect to Letters of Credit
shall be irrevocable and not subject to counterclaim, set-off or other defense
or any other qualification or exception whatsoever (provided that no Participant
shall be required to make payments resulting from the Agent's gross negligence
or willful misconduct) 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:
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(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Agent, the Letter of Credit
Issuer, any Bank or other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein or
any unrelated transactions (including any underlying transaction between
the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect 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 Credit Documents; or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by
the Borrower, the Participants will reimburse and indemnify the Letter of Credit
Issuer, in proportion to their respective Adjusted RC Percentages, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the Letter of
Credit Issuer in performing its respective duties in any way relating to or
arising out of its issuance of Letters of Credit; PROVIDED that no Participants
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Letter of Credit Issuer's gross negligence or willful
misconduct.
1.026 INCREASED COSTS. If at any time after the Restatement
Effective Date, the adoption or effectiveness of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Letter of Credit Issuer or any Bank with any request or directive
(whether or not having the force of law) by any such authority, central bank or
comparable agency shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against Letters of
Credit issued by the Letter of Credit Issuer or such Bank's participation
therein, or (ii) shall impose on the Letter of Credit Issuer or any Bank any
other conditions affecting this Agreement, any Letter of Credit or such Bank's
participation therein; and the result of any of the foregoing is to increase the
cost to the Letter
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of Credit Issuer or such Bank of issuing, maintaining or participating in any
Letter of Credit, or to reduce the amount of any sum received or receivable by
the Letter of Credit Issuer or such Bank hereunder (other than any increased
cost or reduction in the amount received or receivable resulting from the
imposition of or a change in the rate of taxes or similar charges), then, upon
demand to the Borrower by the Letter of Credit Issuer or such Bank (a copy of
which notice shall be sent by the Letter of Credit Issuer or such Bank to the
Agent), the Borrower shall pay to the Letter of Credit Issuer or such Bank such
additional amount or amounts as will compensate the Letter of Credit Issuer or
such Bank for such increased cost or reduction. A certificate submitted to the
Borrower by the Letter of Credit Issuer or such Bank, as the case may be (a copy
of which certificate shall be sent by the Letter of Credit Issuer or such Bank
to the Agent), setting forth the basis for the determination of such additional
amount or amounts necessary to compensate the Letter of Credit Issuer or such
Bank as aforesaid shall be conclusive and binding on the Borrower absent
manifest error, although the failure to deliver any such certificate shall not
release or diminish any of the Borrower's obligations to pay additional amounts
pursuant to this Section 2.06 upon the subsequent receipt thereof.
SECTION 3. FEES; COMMITMENTS.
1.031 FEES. (a) The Borrower agrees to pay to the Agent a
commitment commission ("AR Commitment Commission") for the account of each Non-
Defaulting Bank with an AR Commitment for the period from and including the
Operative Date to, but not including, the AR Termination Date, or, if earlier,
the date upon which the Total AR Commitment has been terminated, computed at a
rate for each day equal to 1/2 of 1% per annum on such Bank's unutilized AR
Commitment on such day provided that the first payment of AR Commitment
Commission under this Agreement shall be accompanied by the payment of all AR
Commitment Commission accrued but unpaid under the Consolidated Credit Agreement
as of the Operative Date. Such AR Commitment Commission shall be due and
payable in arrears on the last Business Day of each February, May, August and
November and on the AR Termination Date.
(b) The Borrower agrees to pay to the Agent a commitment commission
("RC Commitment Commission") for the account of each Non-Defaulting Bank with a
Revolving Commitment for the period from and including the Operative Date to,
but not including, the Expiry Date, or, if earlier, the date upon which the
Total Revolving Commitment has been terminated, computed at a rate for each day
equal to 1/2 of 1% per annum on such Bank's Unutilized Revolving Commitment on
such day provided that the first payment of RC Commitment Commission under the
Agreement shall be accompanied by the payment of all RC Commitment Commission
accrued but unpaid under the Consolidated Credit Agreement as of the Operative
Date. Such RC Commitment Commission shall be due and payable in arrears on the
last Business Day of each February, May, August and November and on the
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Expiry Date, or, if earlier, the date upon which the Total Revolving Commitment
is terminated.
(c) The Borrower agrees to pay to the Agent for the account of each
Non-Defaulting Bank with a Revolving Commitment PRO RATA on the basis of their
respective Adjusted RC Percentages, a fee in respect of each Letter of Credit
(the "Letter of Credit Fee") computed for each day at the rate equal to the
Applicable Eurodollar Margin then in effect on the Stated Amount of such Letter
of Credit on such day provided that the first payment of the Letter of Credit
Fee under the Agreement shall be accompanied by the payment of all Letter of
Credit Fees accrued but unpaid under the Consolidated Credit Agreement as of the
Operative Date. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on the last Business Day of each February, May, August and
November of each year and on the date upon which the Total Revolving Commitment
is terminated.
(d) The Borrower agrees to pay directly to the Letter of Credit
Issuer a fee in respect of each Letter of Credit (the "Facing Fee") computed for
each day at the rate of 1/4 of 1% per annum on the Stated Amount of such Letter
of Credit on such day provided that (x) in no event shall the annual Facing Fee
be less than $500 and (y) the first payment of Facing Fee under the Agreement
shall be accompanied by the payment of all Facing Fees accrued but unpaid under
the Consolidated Credit Agreement as of the Operative Date. Accrued Facing Fees
shall be due and payable quarterly in arrears on the last Business Day of each
February, May, August and November of each year and on the date upon which the
Total Revolving Commitment is terminated.
(e) The Borrower agrees to pay directly to the Letter of Credit
Issuer upon each issuance of, payment under, and/or amendment of, a Letter of
Credit such amount as shall at the time of such issuance, payment or amendment
be the administrative charge which the Letter of Credit Issuer is customarily
charging for issuances of, payments under or amendments of, letters of credit
issued by it.
(f) The Borrower shall pay to the Agent for its own account such
other fees as agreed to between the Borrower and the Agent, when and as due.
(g) All computations of Fees shall be made in accordance with Section
12.07(b).
1.032 VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three
Business Days' prior written notice (or telephonic notice confirmed in writing)
to the Agent at its Notice Office (which notice the Agent shall promptly
transmit to each of the Banks), the Borrower shall have the right, without
premium or penalty, to terminate or partially reduce the unutilized Total AR
Commitment and/or the Unutilized Total Revolving Commitment, provided that (w)
any such termination shall apply to proportionately and permanently reduce
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the AR Commitment and/or Revolving Commitment, as the case may be, of each Bank,
(x) no such reduction shall reduce any Non-Defaulting Bank's AR Commitment to an
amount that is less than the outstanding AR Loans of such Bank, (y) no such
reduction shall reduce any Non-Defaulting Bank's Revolving Commitment to an
amount that is less than the sum of (A) the outstanding Revolving Loans of such
Bank and (B) such Bank's Adjusted RC Percentage of outstanding Swingline Loans
and of Letter of Credit Outstandings and (z) any partial reduction pursuant to
this Section 3.02 of either the Total AR Commitment or the Total Revolving
Commitment shall be in the amount of at least $1,000,000.
1.033 MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total AR
Commitment shall terminate on the earlier of (x) the AR Termination Date and (y)
the date on which any Change of Control occurs.
(b) The Total Revolving Commitment shall terminate on the earlier of
(x) the Expiry Date and (y) the date on which any Change of Control occurs.
(c) The Total AR Commitment shall be reduced, at the time that any
required mandatory repayment of AR Loans would be made prior to the AR
Termination Date pursuant to Section 4.02(A)(c), (e) or (f) if AR Loans were
then outstanding, in the amount of such required repayment (determined as if an
unlimited amount of AR Loans were then outstanding).
(d) Each partial reduction of the Total AR Commitment pursuant to
this Section 3.03 shall apply proportionately to the AR Commitment, if any, of
each Bank.
SECTION 4. PAYMENTS.
1.041 VOLUNTARY PREPAYMENTS. The Borrower shall have the right to
prepay Loans in whole or in part, without premium or penalty, from time to time
on the following terms and conditions: (i) the Borrower shall give the Agent at
the Payment Office written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay the Loans, whether such Loans are AR Loans,
Revolving Loans or Swingline Loans, the amount of such prepayment and (in the
case of Eurodollar Loans) the specific Borrowing(s) pursuant to which made,
which notice shall be given by the Borrower at least one Business Day prior to
the date of such prepayment with respect to Base Rate Loans (except that any
such notice with respect to Swingline Loans may be given prior to 1:00 P.M. (New
York time) on the date of prepayment) and two Business Days prior to the date of
such prepayment with respect to Eurodollar Loans, which notice shall promptly be
transmitted by the Agent to each of the Banks; (ii) each partial prepayment of
any Borrowing shall be in an aggregate principal amount of at least $500,000
and, if greater, in an integral multiple of $100,000, provided that (x)
Swingline Loans may be prepaid in an aggregate amount of at least $250,000 and
(y) no partial prepayment of Eurodollar Loans made pursuant to a Borrowing shall
reduce the
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aggregate principal amount of the Eurodollar Loans outstanding pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto; (iii) at the time of any prepayment of Eurodollar Loans pursuant to
this Section 4.01 on any date other than the last day of the Interest Period
applicable thereto, the Borrower shall pay the amounts required pursuant to
Section 1.11; (iv) each prepayment in respect of any Loans made pursuant to a
Borrowing shall be applied PRO RATA among such Loans, provided, that at the
Borrower's election in connection with any prepayment pursuant to this Section
4.01 of (x) AR Loans prior to the AR Termination Date or (y) Revolving Loans,
such prepayment shall not be applied to any AR Loans or Revolving Loans, as the
case may be, of a Defaulting Bank; and (v) each prepayment made after the AR
Termination Date of AR Loans pursuant to this Section 4.01 shall (x) reduce the
remaining Scheduled Repayments on a PRO RATA basis (based upon the then
remaining principal amount of each such Scheduled Repayment) and (y) be
accompanied by a prepayment of the Term Loans in principal amount equal to the
TL Percentage times the principal amount of the AR Loans being repaid.
1.042 MANDATORY PREPAYMENTS.
(A) REQUIREMENTS:
(a) (i) If on any date prior to the AR Termination Date the
aggregate outstanding principal amount of AR Loans made by Non-Defaulting Banks
exceeds the Adjusted Total AR Commitment as then in effect, the Borrower shall
repay on such date the principal of AR Loans of Non-Defaulting Banks in an
aggregate amount equal to such excess.
(ii) If on any date prior to the AR Termination Date the aggregate
outstanding principal amount of the AR Loans made by a Defaulting Bank exceeds
the AR Commitment of such Defaulting Bank, the Borrower shall repay principal of
the AR Loans of such Defaulting Bank in an amount equal to such excess.
(iii) If on any date the sum of the aggregate outstanding principal
amount of Revolving Loans made by Non-Defaulting Banks, Swingline Loans and the
Letter of Credit Outstandings exceeds the Adjusted Total Revolving Commitment as
then in effect, the Borrower shall repay on such date the principal of Swingline
Loans, and if no Swingline Loans are or remain outstanding, Revolving Loans of
Non-Defaulting Banks, in an aggregate amount equal to such excess. If, after
giving effect to the repayment of all outstanding Swingline Loans and Revolving
Loans of Non-Defaulting Banks, the aggregate amount of Letter of Credit
Outstandings exceeds the Adjusted Total Revolving Commitment then in effect, the
Borrower shall pay to the Agent an amount in cash and/or Cash Equivalents equal
to such excess and the Agent shall hold such payment as security for the
obligations of the Borrower hereunder pursuant to a cash collateral agreement to
be entered into in form and substance satisfactory to the Agent (which shall
permit certain investments in Cash
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Equivalents satisfactory to the Agent, until the proceeds are applied to the
secured obligations).
(iv) If on any date the aggregate outstanding principal amount of the
Revolving Loans made by a Defaulting Bank exceeds the Revolving Commitment of
such Defaulting Bank, the Borrower shall repay principal of the Revolving Loans
of such Defaulting Bank in an amount equal to such excess.
(b) On each date set forth below, the Borrower shall be required to
repay the Applicable Percentage of the principal amount of AR Loans set forth
opposite such date (each such repayment, a "Scheduled Repayment").
Date Amount
---- ------
December 31, 1999 $10,625,000
March 31, 2000 $10,625,000
June 30, 2000 $10,625,000
September 30, 2000 $10,625,000
December 31, 2000 $13,281,250
March 31, 2001 $13,281,250
June 30, 2001 $13,281,250
September 30, 2001 $13,281,250
December 31, 2001 $14,609,375
March 31, 2002 $14,609,375
June 30, 2003 $14,609,375
September 30, 2002 $14,609,375
December 31, 2002 $14,609,375
March 31, 2003 $14,609,375
June 30, 2003 $14,609,375
AR Maturity Date $14,609,375
(c) On the Business Day following the date of receipt thereof by
Holdings, the Borrower and/or any of its Subsidiaries of the Cash Proceeds from
any Asset Sale, an amount equal to the AR Percentage of the Net Cash Proceeds
from such Asset Sale shall be applied as a mandatory repayment of the principal
of the then outstanding AR Loans, provided that such Net Cash Proceeds from
Permitted Asset Sales shall not be required to be used to so repay Loans to the
extent the Borrower elects, as hereinafter provided, to cause such Net Cash
Proceeds to be reinvested in Reinvestment Assets (a "Reinvestment Election").
The Borrower may exercise its Reinvestment Election (within the parameters
specified in the preceding sentence) with respect to an Asset Sale if (x) no
Default or Event of Default exists and (y) the Borrower delivers a Reinvestment
Notice to the Agent on the Business Day following the date of the consummation
of the respective Asset Sale, with such Reinvestment
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Election being effective with respect to the Net Cash Proceeds of such Asset
Sale equal to the Anticipated Reinvestment Amount specified in such Reinvestment
Notice.
(d) On the date of the receipt thereof by Holdings or the Borrower,
as the case may be, an amount equal to 75% of the AR Percentage of the cash
proceeds (net of underwriting discounts and commissions and other reasonable
costs associated therewith) of any sale or issuance of equity by Holdings or the
Borrower, respectively (other than equity issued to management and other
employees of Holdings, the Borrower or its Subsidiaries, the exercise of any
warrants outstanding on the Operative Date and/or any amount of cash received by
Holdings or the Borrower in connection with any capital contributions made by
any of the Designated UOH Stockholders or, in the case of the Borrower, by
Holdings) shall be applied as a mandatory repayment of the principal of the then
outstanding AR Loans provided that the first $5,000,000 of such proceeds in the
aggregate do not have to be so applied to repay AR Loans or Term Loans.
(e) On each date which is 90 days after the last day of each fiscal
year of the Borrower (commencing with the fiscal year ending on December 31,
1999), 50% of the AR Percentage of Excess Cash Flow for the fiscal year then
last ended shall be applied as a mandatory repayment of the principal of the
then outstanding AR Loans.
(f) On the Reinvestment Prepayment Date with respect to a
Reinvestment Election, an amount equal to the AR Percentage of the Reinvestment
Prepayment Amount, if any, for such Reinvestment Election shall be applied as a
repayment of the principal of the then outstanding AR Loans.
(g) On the date on which any Change of Control occurs, the
outstanding principal amount of all Loans shall become due and payable in full.
(B) APPLICATION:
(a) Each mandatory repayment made after the AR Termination Date of AR
Loans pursuant to Section 4.02(A) (other than pursuant to clause (a) or (b)
thereof) shall be applied to reduce the Scheduled Repayments on a PRO RATA basis
(based upon the then remaining outstanding principal amount of each such
Scheduled Repayment).
(b) With respect to each prepayment of Loans required by Section
4.02, the Borrower may designate the Types of Loans which are to be prepaid and
the specific Borrowing(s) under the affected Facility pursuant to which made,
provided that (i) Eurodollar Loans may so be designated for prepayment pursuant
to this Section 4.02 only on the last day of an Interest Period applicable
thereto unless all Eurodollar Loans made pursuant to such Facility with Interest
Periods ending on such date of required prepayment and all Base Rate Loans made
pursuant to such Facility have been paid in full; (ii) if any prepayment of
Eurodollar
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Loans made pursuant to a single Borrowing shall reduce the outstanding Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount for such Borrowing, such Borrowing shall be immediately converted into
Base Rate Loans; (iii) each prepayment of any AR Loans or Revolving Loans made
by Non-Defaulting Banks pursuant to a Borrowing shall be applied PRO RATA among
such AR Loans or Revolving Loans, as the case may be; and (iv) each prepayment
of any AR Loans or Revolving Loans made by Defaulting Banks pursuant to a
Borrowing shall be applied PRO RATA among such AR Loans or Revolving Loans, as
the case may be. In the absence of a designation by the Borrower as described
in the preceding sentence, the Agent shall, subject to the above, make such
designation in its sole discretion with a view, but no obligation, to minimize
breakage costs owing under Section 1.11.
1.043 METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the Agent
for the ratable (based on its PRO RATA share) account of the Banks entitled
thereto, not later than 1:00 P.M. (New York time) on the date when due and shall
be made in immediately available funds and in lawful money of the United States
of America at the Payment Office, it being understood that written notice by the
Borrower to the Agent to make a payment from the funds in the Borrower's account
at the Payment Office shall constitute the making of such payment to the extent
of such funds held in such account. Any payments under this Agreement which are
made later than 1:00 P.M. (New York time) shall be deemed to have been made on
the next succeeding Business Day. Whenever any payment to be made hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension.
1.044 NET PAYMENTS. (a) All payments made by the Borrower
hereunder, under any Note or any other Credit Document, will be made without
setoff, counterclaim or other defense. Except as provided for in Section
4.04(b), all such payments will be made free and clear of, and without deduction
or withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein (but excluding, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income (or any franchise tax) of a
Bank pursuant to the laws of the jurisdiction in which the principal office or
applicable lending office of such Bank is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which the
principal office or applicable lending office of such Bank is located) and all
interest, penalties or similar liabilities with respect thereto (collectively,
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to pay the
full amount of such Taxes and such additional amounts as may be necessary so
that every payment of all amounts due hereunder, under any Note or under any
other Credit Document, after withholding or
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deduction for or on account of any Taxes, will not be less than the amount
provided for herein or in such Note or in such other Credit Document. If any
amounts are payable in respect of Taxes pursuant to the preceding sentence, then
the Borrower shall also reimburse each Bank, upon the written request of such
Bank, for taxes imposed on or measured by the net income of such Bank pursuant
to the laws of the jurisdiction in which the principal office or applicable
lending office of such Bank is located or of any political subdivision or taxing
authority of any such jurisdiction and for any withholding of income or similar
taxes imposed by the United States of America as such Bank shall determine are
payable by, or withheld from, such Bank in respect of Taxes paid to or on behalf
of such Bank pursuant to this or the preceding sentence. The Borrower will
furnish to the Agent within 45 days after the date the payment of any Taxes, or
any withholding or deduction on account thereof, is due pursuant to applicable
law certified copies of tax receipts evidencing such payment by the Borrower.
The Borrower will indemnify and hold harmless the Agent and each Bank, and
reimburse the Agent or such Bank upon its written request, for the amount of any
Taxes so levied or imposed and paid or withheld by such Bank.
(b) Each Bank which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes
agrees (i) to provide to the Borrower on or prior to the Operative Date two
original signed copies of Internal Revenue Service Form 4224 or Form 1001
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement, under
any Note and under any other Credit Document and (ii) that, (x) to the extent
legally entitled to do so, with respect to a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 12.04 hereof
(unless the respective Bank was already a Bank hereunder immediately prior to
such assignment or transfer), upon the date of such assignment or transfer to
such Bank, and (y) with respect to any Bank which is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes (including, without limitation, any assignee or transferee),
from time to time, upon the reasonable request by the Borrower or the Agent
after the Operative Date, such Bank will provide to each of the Borrower and the
Agent two original signed copies of Internal Revenue Service Form 4224 or Form
1001 (or any successor forms) certifying to such Bank's entitlement to a
complete exemption from, or reduction in, United States withholding tax with
respect to payments to be made under this Agreement, under any Note and under
any other Credit Document. Notwithstanding anything to the contrary contained
in Section 4.04(a), the Borrower shall be entitled, to the extent it is required
to do so by law, to deduct or withhold income or other similar taxes imposed by
the United States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder (without any
obligation under Section 4.04(a) to pay the respective Bank such taxes or any
additional amounts with respect thereto) for the account of any Bank which is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for United States federal income tax purposes and which has not
provided to the Borrower such forms required to be provided to the
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Borrower by a Bank pursuant to the first sentence of this Section 4.04(b),
provided that if the Borrower shall so deduct or withhold any such taxes, it
shall provide a statement to the Agent and such Bank, setting forth the amount
of such taxes so deducted or withheld, the applicable rate and any other
information or documentation which such Bank may reasonably request for
assisting such Bank in obtaining any allowable credits or deductions for the
taxes so deducted or withheld in the jurisdiction or jurisdictions in which such
Bank is subject to tax. Notwithstanding anything to the contrary contained in
the preceding sentence, the Borrower agrees to indemnify each Bank in the manner
set forth in Section 4.04(a) in respect of any amounts deducted or withheld by
it as described in the previous sentence as a result of any changes after the
Operative Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of income or similar Taxes.
SECTION 5. CONDITIONS PRECEDENT.
1.051 OPERATIVE DATE. This Agreement shall become effective on the
date (the "Operative Date") which is the date on which the following conditions
shall first have been satisfied.
(a) Each of the Borrower and each Bank shall have duly executed a
copy of this Agreement (whether the same or different copies) and shall
have delivered (including by way of facsimile transmission of the signature
page hereof) the same to the Agent at its Notice Office.
(b) The Agent shall have received an opinion, addressed to the Agent,
and each of the Banks and dated the Operative Date, from Winston & Xxxxxx,
counsel to Holdings and the Borrower, which opinion shall cover such
matters relating to the Agreement as reasonably requested by, and shall be
reasonably satisfactory to, the Agent.
(c) Concurrently with the effectiveness of this Agreement, the Term
Loan Agreement shall have become effective in accordance with its terms,
promptly followed by the making of the Term Loans thereunder and the
application of the proceeds of the Term Loans to repay outstanding AR
Loans.
1.052 ALL CREDIT EVENTS. The obligation of the Banks to make each
Loan and of the Letter of Credit Issuer to issue each Letter of Credit is
subject, at the time thereof, to the satisfaction of the following conditions:
(a) NOTICE OF BORROWING. The Agent shall have received a Notice of
Borrowing meeting the requirements of Section 1.02 or a Letter of Credit Request
meeting the requirements of Section 2.03.
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(b) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of each
Credit Event and also after giving effect thereto, (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Credit Event, except to
the extent that such representations and warranties expressly relate to an
earlier date.
(c) TESTED BORROWINGS. At the time of incurring any Tested
Borrowing, each of the covenants set forth in Sections 8.11 through 8.14 shall
have been satisfied as of, and no Event of Default under Section 9.08(B) or (C)
shall exist as of, the Measurement Date relating to such Tested Borrowing
determined on a PRO FORMA basis as if such Tested Borrowing occurred on such
Measurement Date and, in the case of a Tested Borrowing financing a Permitted
Acquisition, such Permitted Acquisition was consummated on the first day of the
12-month period ending on such Measurement Date.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to the Agent and each of the Banks
that all of the applicable conditions specified above exist as of that time.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Banks to enter into this Agreement and to make the Loans, the
Borrower makes the following representations and warranties to, and agreements
with, the Banks, all of which shall survive the execution and delivery of this
Agreement and the making of the Loans.
1.061 CORPORATE STATUS. Each of Holdings, the Borrower and its
Subsidiaries (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its organization and has the
corporate power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (ii) has
duly qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified and where the failure to
be so qualified would have a Material Adverse Effect.
1.062 CORPORATE POWER AND AUTHORITY. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Transaction Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Credit Documents to which it is a party. Each Credit Party has duly
executed and delivered each Credit Document to which it is a party and each such
Credit Document constitutes the legal, valid and binding obligation of such
Credit Party enforceable in accordance with its terms.
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1.063 NO VIOLATION. Neither the execution, delivery and performance
by any Credit Party of the Credit Documents to which it is a party nor
compliance with the terms and provisions thereof, nor the consummation of the
transactions contemplated therein (i) will contravene any applicable provision
of any law, statute, rule, regulation, order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or (other than pursuant to the
Security Documents) result in the creation or imposition of (or the obligation
to create or impose) any Lien upon any of the property or assets of any Credit
Party or any of its Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, agreement or other instrument to which Holdings, the
Borrower or any of its Subsidiaries is a party or by which it or any of its
property or assets are bound or to which it may be subject or (iii) will violate
any provision of the Charter or By-Laws of any Credit Party or any of its
Subsidiaries.
1.064 LITIGATION. There are no actions, suits or proceedings pending
or, to the Borrower's knowledge, threatened with respect to Holdings, the
Borrower or any of its Subsidiaries (i) that are likely to have a Material
Adverse Effect or (ii) that could reasonably be expected to have a material
adverse effect on the rights or remedies of the Banks or on the ability of the
Credit Parties to perform their obligations to them under the Credit Documents.
1.065 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of AR
Loans may be used to finance Permitted Acquisitions.
(b) The proceeds of Revolving Loans and Swingline Loans may be used
for the general corporate and working capital purposes of the Borrower and its
Subsidiaries.
(c) Neither the making or continuance of any Loan hereunder, nor the
use of the proceeds thereof, will violate or be inconsistent with the provisions
of Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System and no part of the proceeds of any Loan will be used to purchase or carry
any Margin Stock in violation of Regulation U or to extend credit for the
purpose of purchasing or carrying any Margin Stock.
1.066 GOVERNMENTAL APPROVALS. Except for filings and recordings in
connection with the Security Documents, and those items listed on Annex III, no
order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any foreign or domestic
governmental or public body or authority, or any subdivision thereof, that has
not been obtained or made is required to authorize or is required in connection
with (i) the execution, delivery and performance of any Credit Document or (ii)
the legality, validity, binding effect or enforceability of any Credit Document.
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1.067 INVESTMENT COMPANY ACT. None of Holdings, the Borrower nor any
of its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
1.068 PUBLIC UTILITY HOLDING COMPANY ACT. None of Holdings, the
Borrower or any of its Subsidiaries 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.
1.069 TRUE AND COMPLETE DISCLOSURE. All factual information (taken
as a whole) heretofore or contemporaneously furnished by or on behalf of
Holdings, the Borrower or any of its Subsidiaries in writing to the Agent or any
Bank for purposes of or in connection with this Agreement or any transaction
contemplated herein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of any such Person in writing to any
Bank will be, true and accurate in all material respects on the date as of which
such information is dated or certified and not incomplete by omitting to state
any material fact necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which such
information was provided. The projections and PRO FORMA financial information
contained in such materials are based on good faith estimates and assumptions
believed by such Persons to be reasonable at the time made, it being recognized
by the Banks that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ from the projected results. There is no fact known to
the Borrower which would have a Material Adverse Effect, which has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Banks for use in connection with the transactions contemplated
hereby.
6.10 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as of the
Operative Date, on a PRO FORMA basis after giving effect to all Indebtedness
incurred, and to be incurred, and Liens created, and to be created, in
connection therewith, (x) the sum of the assets, at a fair valuation, of the
Borrower and its Subsidiaries, and of Holdings and is Subsidiaries, taken as a
whole will exceed their debts, (y) the Borrower and its Subsidiaries, and
Holdings and its Subsidiaries, taken as a whole will not have incurred or
intended to, or believe that they will, incur debts beyond their ability to pay
such debts as such debts mature and (z) the Borrower and its Subsidiaries, and
Holdings and its Subsidiaries, taken as a whole will not have unreasonably small
capital with which to conduct their business. For purposes of this Section
6.10, "debt" means any liability on a claim, and "claim" means (i) right to
payment whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured; or (ii) right to an equitable remedy for
breach of performance if such breach gives
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rise to a payment, whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured or unsecured.
(b)(i) The consolidated balance sheet of Holdings and of the Borrower
at December 31, 1995 and December 31, 1996 and the related consolidated
statements of operations and cash flows of Holdings and of the Borrower for the
fiscal years ended as of said dates, which have been examined by Price
Waterhouse LLP, independent certified public accountants, who delivered an
unqualified opinion in respect therewith and (ii) the Financial Statements (as
defined in the Acquisition Agreement), copies of which have heretofore been
furnished to each Bank, present fairly the financial position of such entities
at the dates of said statements and the results for the periods covered thereby
at the date thereof) in accordance with GAAP, except to the extent provided in
the notes to said financial statements. All such financial statements have been
prepared in accordance with generally accepted accounting principles and
practices consistently applied except to the extent provided in the notes to
said financial statements. Nothing has occurred since December 31, 1996 that
has had or could reasonably be expected to have a Material Adverse Effect.
(c) Except as reflected in the financial statements and the notes
thereto described in Section 6.10(b), there were as of the Operative Date no
liabilities or obligations with respect to Holdings, the Borrower or any of its
Subsidiaries of a nature (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, would be
material to the Borrower and its Subsidiaries, and to Holdings and its
Subsidiaries, taken as a whole, except as incurred in the ordinary course of
business consistent with past practices subsequent to December 31, 1996.
6.11 SECURITY INTERESTS. On and after the Operative Date (or the
date of the execution and delivery thereof, in the case of all Security
Documents first executed after such date), each of the Security Documents
create, as security for the Obligations purported to be secured thereby, a valid
and enforceable perfected security interest in and Lien on all of the Collateral
subject thereto, superior to and prior to the rights of all third Persons and
subject to no other Liens (except (x) that the Security Agreement Collateral may
be subject to the security interests evidenced by Permitted Liens relating
thereto and (y) the Mortgaged Properties may be subject to Permitted
Encumbrances relating thereto), in favor of the Collateral Agent for the benefit
of the Banks. No filings or recordings are required in order to perfect the
security interests created under any Security Document except for filings or
recordings required in connection with any such Security Document (other than
the Pledge Agreements) which shall have been made upon prior to (or are the
subject of arrangements, satisfactory to the Agent, for filing on or promptly
after the date of) the execution and delivery thereof.
6.12 TAX RETURNS AND PAYMENTS. Each of Holdings, the Borrower and
its Subsidiaries has filed all federal income tax returns and all other material
tax returns,
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domestic and foreign, required to be filed by it and has paid all material taxes
and assessments payable by it which have become due, other than those not yet
delinquent and except for those contested in good faith. Holdings, the Borrower
and its Subsidiaries have paid, or have provided adequate reserves (in the good
faith judgment of the management of the Borrower) for the payment of, all
federal, state and foreign income taxes applicable for all prior fiscal years
and for the current fiscal year to the date hereof.
6.13 COMPLIANCE WITH ERISA. Each Plan is in substantial compliance
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an Unfunded Current
Liability; no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; neither the Borrower, nor any Subsidiary nor any ERISA Affiliate has
incurred any material liability to or on account of a Plan pursuant to Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971, 4975 or 4980 of the Code or expects to incur any
liability (including any indirect, contingent or secondary liability) under any
of the foregoing Sections with respect to any Plan; no proceedings have been
instituted to terminate or appoint a trustee to administer any Plan; no
condition exists which presents a material risk to the Borrower or any
Subsidiary or any ERISA Affiliate of incurring a liability to or on account of a
Plan pursuant to the foregoing provisions of ERISA and the Code; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of the Borrower and its
Subsidiaries and its ERISA Affiliates to all Plans which are multiemployer plans
(as defined in Section 4001(a)(3) of ERISA) in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ended prior to the date of the most recent Credit Event, would not
exceed $150,000; no lien imposed under the Code or ERISA on the assets of the
Borrower or any Subsidiary or any ERISA Affiliate exists or is likely to arise
on account of any Plan; and Holdings, the Borrower and its Subsidiaries do not
maintain or contribute to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) which provides benefits to retired employees (other than
as required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA), except to the extent that all events
described in the preceding clauses of this Section 6.13 and then in existence
would not, in the aggregate, have or be likely to have a Material Adverse
Effect. With respect to Plans that are multiemployer plans (within the meaning
of Section 4001(a)(3) of ERISA) the representations and warranties in this
Section 6.13 are made to the best knowledge of the Borrower.
6.14 SUBSIDIARIES. (a) Annex IV hereto lists each Subsidiary of the
Borrower existing on the Operative Date. Except as set forth on Annex IV, the
Borrower owns 100% of the outstanding capital stock of each such Subsidiary.
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(b) There are no restrictions on the Borrower or any of its
Subsidiaries which prohibit or otherwise restrict the transfer of cash or other
assets from any Subsidiary of the Borrower to the Borrower, other than
prohibitions or restrictions existing under or by reason of (i) this Agreement,
the other Credit Documents, the Term Loan Documents or any Subordinated Debt
Indenture, (ii) applicable law, (iii) customary non-assignment provisions
entered into in the ordinary course of business and consistent with past
practices, (iv) any restriction or encumbrance with respect to a Subsidiary of
the Borrower imposed pursuant to an agreement which has been entered into for
the sale or disposition of all or substantially all of the capital stock or
assets of such Subsidiary, so long as such sale or disposition is permitted
under this Agreement, and (v) any documents or instruments governing the terms
of any Indebtedness or other obligations secured by Liens permitted by Section
8.03, provided that such prohibitions or restrictions apply only to the assets
subject to such Liens.
6.15 PATENTS, ETC. The Borrower and each of its Subsidiaries have
obtained all material patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their businesses taken as a whole as
presently conducted and as proposed to be conducted.
6.16 POLLUTION AND OTHER REGULATIONS. (a) Each of Holdings, the
Borrower and its Subsidiaries is in compliance with all Environmental Laws
governing its business for which failure to comply is reasonably likely to have
a Material Adverse Effect, and neither Holdings, the Borrower nor any of its
Subsidiaries is liable for any material penalties, fines or forfeitures for
failure to comply with any of the foregoing in the manner set forth above. All
licenses, permits, registrations or approvals required for the business of the
Borrower and each of its Subsidiaries, as conducted as of the Restatement
Effective Date, under any Environmental Law have been secured and the Borrower
and each of its Subsidiaries is in substantial compliance therewith, except such
licenses, permits, registrations or approvals the failure to secure or to comply
therewith is not likely to have a Material Adverse Effect. Neither Holdings,
the Borrower nor any of its Subsidiaries is in noncompliance with, breach of or
default under any applicable writ, order, judgment, injunction, or decree to
which Holdings, the Borrower or such Subsidiary is a party or which would affect
the ability of the Borrower or such Subsidiary to operate any real property and
no event has occurred and is continuing which, with the passage of time or the
giving of notice or both, would constitute noncompliance, breach of or default
thereunder, except in each such case, such noncompliance, breaches or defaults
as are not likely to, in the aggregate, have a Material Adverse Effect. There
are as of the Restatement Effective Date no Environmental Claims pending or, to
the best knowledge of the Borrower, threatened, which (a) challenge the
validity, term or entitlement of the Borrower or any of its Subsidiaries for any
permit, license, order or registration required for the operation of any
facility under the Environmental Laws which the Borrower or any of its
Subsidiaries operates and (b) wherein an unfavorable decision, ruling or finding
would be reasonably likely to have a Material Adverse Effect. There are no
facts, circumstances, conditions or occurrences concerning Holdings, the
Borrower or any of its
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Subsidiaries, any of their operations or on any Real Property or, to the
knowledge of the Borrower, on any property adjacent to any such Real Property
that could reasonably be expected (i) to form the basis of an Environmental
Claim against the Borrower, any of its Subsidiaries or any Real Property of the
Borrower or any of its Subsidiaries, or (ii) to cause such Real Property to be
subject to any restrictions on the ownership, occupancy, use or transferability
of such Real Property under any Environmental Law, except in each such case,
such Environmental Claims or restrictions that individually or in the aggregate
are not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated,
used, treated or stored on, or transported to or from, any Real Property of the
Borrower or any of its Subsidiaries or (ii) released on any Real Property, in
each case where such occurrence or event individually or in the aggregate is
reasonably likely to have a Material Adverse Effect.
6.17 PROPERTIES. The Borrower and each of its Subsidiaries have good
and marketable title to all properties owned by them, including all property
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries, and the Financial Statements, referred to in Section 6.10(b), free
and clear of all Liens, other than (i) as referred to in the consolidated
balance sheet, or the Financial Statements, or, in either case, in the notes
thereto or (ii) otherwise permitted by Section 8.03. Annex V contains a true
and complete list of each Real Property owned or leased by the Borrower or any
of its Subsidiaries on the Operative Date (other than properties that are solely
sign locations) and the type of interest therein held by the Borrower or the
respective Subsidiary. Holdings owns no properties or assets (other than the
Tax Sharing Agreement) other than all of the capital stock of the Borrower.
6.18 LABOR RELATIONS. Holdings, the Borrower and its Subsidiaries
are not engaged in any unfair labor practice that could reasonably be expected
to have a Material Adverse Effect. There is (i) no unfair labor practice
complaint pending against Holdings, the Borrower or any of its Subsidiaries or
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against any of them or threatened against any
of them, (ii) no strike, labor dispute, slowdown or stoppage pending against
Holdings, the Borrower or any of its Subsidiaries or threatened against any of
them and (iii) no union representation question existing with respect to the
employees of Holdings, the Borrower or any of its Subsidiaries and no union
organizing activities are taking place, except with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate, such as is not reasonably likely to have a Material Adverse Effect.
6.19 EXISTING INDEBTEDNESS. Annex VI sets forth a true and complete
list of all Indebtedness of Holdings, the Borrower and each of its Subsidiaries
as of the Consolidation Date that is in excess of $5,000 for any one issue and
is to remain outstanding
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thereafter (all such Indebtedness, of whatever size, but excluding Indebtedness
hereunder, the "Existing Indebtedness"), in each case showing the aggregate
principal amount thereof and the name of the respective borrower (or issuer) and
any other entity which directly or indirectly guaranteed such debt.
SECTION 7. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees
that on the Operative Date and thereafter for so long as this Agreement is in
effect and until the Commitments have terminated, no Notes are outstanding and
the Loans, together with interest, Fees and all other Obligations incurred
hereunder, are paid in full:
1.071 INFORMATION COVENANTS. The Borrower will furnish to each Bank:
(a) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close of
each fiscal year of the Borrower, the consolidated balance sheet of the Borrower
and its Subsidiaries and of Holdings and its Subsidiaries, as at the end of such
fiscal year and the related consolidated statements of income and retained
earnings and of cash flows for such fiscal year, in each case setting forth
comparative consolidated figures for the preceding fiscal year, and examined by
independent certified public accountants of recognized national standing whose
opinion shall not be qualified as to the scope of audit and as to the status of
Holdings, the Borrower or any of its Subsidiaries as a going concern, together
with a certificate of such accounting firm stating that in the course of its
regular audit of the business of Holdings and of the Borrower, which audit was
conducted in accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any Default or Event of Default
which has occurred and is continuing or, if in the opinion of such accounting
firm such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year, the consolidated balance sheet of the
Borrower and its Subsidiaries and of Holdings and its Subsidiaries, as at the
end of such quarterly period and the related consolidated statements of income
and retained earnings and of cash flows for such quarterly period and for the
elapsed portion of the fiscal year ended with the last day of such quarterly
period, and in each case setting forth comparative consolidated figures for the
related periods in the prior fiscal year, all of which shall be certified by the
chief financial officer or controller of the Borrower or Holdings, as
appropriate, subject to changes resulting from audit and normal year-end audit
adjustments.
(c) MONTHLY REPORTS. As soon as practicable, and in any event within
30 days, after the end of each monthly accounting period of each fiscal year the
consolidated balance sheet of the Borrower and its Subsidiaries and of Holdings
and its Subsidiaries, as at the end of such period, and the related consolidated
statements of income and retained
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earnings for such period, setting forth comparative figures for the
corresponding period of the previous year, all of which shall be certified by
the chief financial officer or controller of the Borrower or Holdings, as
appropriate, subject to changes resulting from audit and normal year-end audit
adjustments.
(d) BUDGETS; ETC. Not more than 60 days after the commencement of
each fiscal year of the Borrower, a budget of the Borrower and its Subsidiaries
in reasonable detail for each of the twelve months of such fiscal year.
Together with each delivery of consolidated financial statements pursuant to
Sections 7.01(a), (b) and (c), a comparison of the current year to date
financial results against the budgets required to be submitted pursuant to this
clause (d) shall be presented.
(e) OFFICER'S CERTIFICATES. (i) At the time of the delivery of the
financial statements provided for in Sections 7.01(a), (b) and (c), a
certificate of the chief financial officer, controller or other Authorized
Officer of the Borrower to the effect that no Default or Event of Default exists
or, if any Default or Event of Default does exist, specifying the nature and
extent thereof, which certificate, shall set forth the calculations required to
establish (I) the Modified Holdings Leverage Ratio for the Relevant
Determination Date occurring on the last day of such fiscal year, quarter or
month, (II) whether the Borrower and its Subsidiaries were in compliance with
the provisions of Sections 8.11, 8.12 and 8.13, as applicable, as at the end of
such fiscal period or year, as the case may be and (III) whether there was any
Event of Default under Section 9.08(B) and/or 9.08(C) as at the end of such
fiscal period.
(ii) At the time of any incurrence of Consolidated Debt of Holdings
and its Subsidiaries at a time when the Margin Reduction Discount is (or based
on the last officer's certificate delivered pursuant to clause (i) above will
be) greater than zero, a certificate of any of the persons specified in clause
(i) above setting forth the calculations establishing the Modified Holdings
Leverage Ratio after giving effect to the incurrence of such Consolidated Debt.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any event
within three Business Days after the Borrower obtains knowledge thereof, notice
of (x) the occurrence of any event which constitutes a Default or Event of
Default which notice shall specify the nature thereof, the period of existence
thereof and what action the Borrower proposes to take with respect thereto and
(y) the commencement of or any significant development in any litigation or
governmental proceeding pending against Holdings, the Borrower or any of its
Subsidiaries which is likely to have a Material Adverse Effect or is likely to
have a material adverse effect on the ability of the Borrower to perform its
obligations hereunder or under any other Credit Document.
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(g) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy of each
other final report or "management letter" submitted to Holdings or the Borrower
by its independent accountants in connection with any annual, interim or special
audit made by it of the books of Holdings and/or the Borrower.
(h) ENVIRONMENTAL MATTERS. Promptly upon, and in any event within 20
Business Days after an officer of Holdings, the Borrower or any Subsidiary
obtains knowledge thereof, notice of one or more of the following environmental
matters: (i) any pending or threatened (in writing) material Environmental
Claim against, or for which liability would attach to, the Borrower or any of
its Subsidiaries or any Real Property owned or operated by the Borrower or any
of its Subsidiaries; (ii) any condition or occurrence on or arising from any
Real Property owned or operated by the Borrower or any of its Subsidiaries that
(a) results in material noncompliance by Holdings, the Borrower or any of its
Subsidiaries with any applicable material Environmental Law or (b) would
reasonably be expected to form the basis of a material Environmental Claim
against, or for which liability would attach to, the Borrower or any of its
Subsidiaries or any such Real Property; (iii) any condition or occurrence on any
Real Property owned or operated by the Borrower or any of its Subsidiaries that
could reasonably be expected to cause such Real Property to be subject to any
material restrictions on the ownership, occupancy, use or transferability by the
Borrower or any of its Subsidiaries of such Real Property under any
Environmental Law; and (iv) the taking of any material removal or remedial
action in response to the actual or alleged presence of any Hazardous Material
on any Real Property owned or operated by the Borrower or any of its
Subsidiaries as required by any Environmental Law or any governmental or other
administrative agency, and all such notices shall describe in reasonable detail
the nature of the claim, investigation, condition, occurrence or removal or
remedial action and the Borrower's or such Subsidiary's response thereto.
(i) OTHER INFORMATION. Promptly upon transmission thereof, (i)
copies of any filings and registrations with, and reports to, the Securities and
Exchange Commission or any successor thereto (the "SEC") by Holdings, the
Borrower or any of its Subsidiaries and (ii) with reasonable promptness, such
other information or documents (financial or otherwise) as the Agent on its own
behalf or on behalf of the Required Banks may reasonably request from time to
time.
1.072 BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will
cause its Subsidiaries to, permit, upon reasonable notice to the chief financial
officer, controller or any other Authorized Officer of the Borrower officers and
designated representatives of the Agent or the Required Banks to visit and
inspect any of the properties or assets of the Borrower and any of its
Subsidiaries in whomsoever's possession, and to examine the books of account of
Holdings, the Borrower and any of its Subsidiaries and discuss the affairs,
finances and accounts of Holdings, the Borrower and of any of its Subsidiaries
with, and be advised as to the same by, its and their officers and independent
accountants, all at such
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reasonable times and intervals and to such reasonable extent as the Agent or the
Required Banks may desire.
1.073 INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect insurance in
such amounts, covering such risks and liabilities and with such deductibles or
self-insured retentions as are in accordance with normal industry practice,
provided that in no event will any such deductible or self-insured retention in
respect of liability claims or in respect of casualty damage, exceed, in each
such case, (i) $250,000 per occurrence or (ii) $1,000,000 in the aggregate per
fiscal year. At any time that insurance at the levels described in Annex VII is
not being maintained by the Borrower and its Subsidiaries, the Borrower will
notify the Banks in writing thereof and, if thereafter notified by the Agent to
do so, the Borrower will, and will cause its Subsidiaries to, obtain insurance
at such levels at least equal to those set forth in Annex VII to the extent then
generally available (but in any event within the deductible or self-insured
retention limitations set forth in the preceding sentence) or otherwise as are
acceptable to the Agent. The Borrower will, and will cause each of its
Subsidiaries to, furnish on the Operative Date and annually thereafter to the
Agent a summary of the insurance carried together with certificates of insurance
and other evidence of such insurance, if any, naming the Collateral Agent as an
additional insured and/or loss payee.
1.074 PAYMENT OF TAXES. The Borrower will pay and discharge, and
will cause each Subsidiary to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims which, if unpaid, might become a Lien or charge
upon any properties of Holdings, the Borrower or any of its Subsidiaries,
provided that neither Holdings, the Borrower nor any Subsidiary shall be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves (in the good faith judgment of the management of the Borrower) with
respect thereto in accordance with GAAP.
1.075 CONSOLIDATED CORPORATE FRANCHISES. The Borrower will do, and
will cause each Subsidiary to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its existence, material rights and
authority, provided that any transaction permitted by Section 8.02 will not
constitute a breach of this Section 7.05.
1.076 COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will
cause each Subsidiary to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property other than those the non-compliance with which would not have a
Material Adverse Effect or would not have a
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material adverse effect on the ability of the Borrower to perform its
obligations under any Credit Document.
1.077 ERISA. As soon as possible and, in any event, within 10 days
after the Borrower or any of its Subsidiaries or ERISA Affiliates knows or has
reason to know of the occurrence of any of the following, the Borrower will
deliver to each of the Banks a certificate of the chief financial officer of the
Borrower setting forth details as to such occurrence and such action, if any,
which the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC,
a Plan participant (other than notices relating to an individual participant's
benefits) or the Plan administrator with respect thereto: that a Reportable
Event has occurred; that an accumulated funding deficiency has been incurred or
an application is reasonably likely to be or has been made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that a
Plan which has an Unfunded Current Liability has been or may be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA; that a
Plan has an Unfunded Current Liability and there is a failure to make a required
contribution, which gives rise to a lien under ERISA or the Code; that
proceedings are reasonably likely to be or have been instituted to terminate a
Plan which has an Unfunded Current Liability; that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent contribution
to a Plan; that the Borrower, any Subsidiary or any ERISA Affiliate will or may
incur any liability (including, any contingent or secondary liability) to or on
account of the termination of or withdrawal from a Plan under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under
Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409, 502(l) or
502(l) of ERISA or that the Borrower or any Subsidiary or Holdings may incur any
material liability pursuant to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA). Upon
request of a Bank, the Borrower will deliver to such Bank a complete copy of the
annual report (Form 5500) of each Plan required to be filed with the Internal
Revenue Service. In addition to any certificates or notices delivered to the
Banks pursuant to the first sentence hereof, copies of any annual reports and
any other material notices received by Holdings, the Borrower or any Subsidiary
with respect to a Plan shall be delivered to the Banks no later than 10 days
after the later of the date such notice has been filed with the Internal Revenue
Service or the PBGC, given to Plan participants (other than notices relating to
an individual participant's benefits) or received by Holdings, the Borrower or
such Subsidiary.
1.078 GOOD REPAIR. The Borrower will, and will cause each of its
Subsidiaries to, ensure that its properties and equipment used or useful in its
business in
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whomsoever's possession they may be, are kept in good repair, working order and
condition, normal wear and tear excepted, and, subject to Section 8.05, that
from time to time there are made in such properties and equipment all needful
and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements thereto, to the extent and in the manner useful or customary
for companies in similar businesses.
1.079 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries' fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries' fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
7.10 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) No later than 60
days following the Operative Date, the Borrower shall deliver to the Agent a
duly authorized and executed counterpart or counterparts of deeds of trust,
mortgages and similar documents in form and substance reasonably satisfactory to
the Agent (the "Additional Mortgages") covering all of the Real Property owned
by the Borrower not subject to Mortgages on the Operative Date (x) which
Additional Mortgages shall constitute valid and enforceable Liens superior to
and prior to the rights of all third Persons and subject to instruments related
thereto) shall have been duly recorded or filed in such manner and in such
places as are required by law to establish, perfect, preserve and protect the
Liens in favor of the Collateral Agent required to be granted thereunder and all
taxes, fees and other charges payable in connection therewith shall have been
paid in full, with each such Additional Mortgage to be accompanied by mortgage
policies relating thereto reasonably satisfactory to the Agent.
(b) The Borrower will, and will cause the Subsidiary Guarantors to,
grant to the Collateral Agent security interests and mortgages (each a "New
Mortgage") in such owned Real Property (x) of the Borrower acquired (including
as a result of the merger of one or more Subsidiaries with the Borrower) after
the Operative Date or (y) of a Subsidiary Guarantor owned on the date it first
becomes a Subsidiary Guarantor or thereafter acquired, in each case as may be
requested from time to time by the Agent. Such New Mortgages shall be granted
pursuant to documentation reasonably satisfactory in form and substance to the
Agent and shall constitute valid and enforceable Liens superior to and prior to
the rights of all third Persons and subject to no other Liens except as are
permitted by Section 8.03. The New Mortgages or instruments related thereto
shall have been duly recorded or filed in such manner and in such places as are
required by law to establish, perfect, preserve and protect the Liens in favor
of the Collateral Agent for the benefit of the Secured Creditors required to be
granted pursuant to the New Mortgages and all taxes, fees and other charges
payable in connection therewith shall have been paid in full, with each New
Mortgage to be accompanied by mortgage policies related thereto reasonably
satisfactory to the Agent.
(c) The Borrower will, and will cause its Subsidiaries to, at the
expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral
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Agent from time to time such vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, real property surveys, reports and other assurances or
instruments and take such further steps relating to the collateral covered by
any of the Security Documents as the Collateral Agent may reasonably require.
Furthermore, the Borrower shall cause to be delivered to the Collateral Agent
such opinions of counsel, title insurance and other related documents as may be
requested by the Agent to assure themselves that this Section 7.10 has been
complied with.
(d) The Borrower agrees that each action required above by Section
7.10(b) or (c) shall be completed as soon as possible, but in no event later
than 60 days after such action is requested to be taken by the Agent or the
Required Banks, provided that in no event shall the Borrower be required to take
any action, other than using its reasonable commercial efforts without any
material expenditure, to obtain consents from third parties with respect to its
compliance with this Section 7.10.
7.11 CORPORATE SEPARATENESS. The Borrower will take, and will cause
each of its Subsidiaries to take, all such action as is necessary to keep the
operations of the Borrower and its Subsidiaries separate and apart from those of
Holdings, including, without limitation, ensuring that all customary formalities
regarding corporate existence, including holding regular board of directors'
meetings and maintenance of corporate records, are followed. All financial
statements of the Borrower and its Subsidiaries provided to creditors will
clearly evidence the corporate separateness of the Borrower and its Subsidiaries
from Holdings. Finally, neither the Borrower nor any of its Subsidiaries will
take any action, or conduct its affairs in a manner which is likely to result in
the corporate existence of Holdings on the one hand, and the Borrower and its
Subsidiaries on the other, being ignored, or in the assets and liabilities of
the Borrower or any of its Subsidiaries being substantively consolidated with
those of Holdings in a bankruptcy, reorganization or other insolvency
proceeding. No action expressly provided for in this Agreement or the other
Credit Documents will breach this covenant.
7.12 COMPLIANCE WITH ENVIRONMENTAL LAWS. (i) The Borrower will
comply, and the Borrower will cause each of its Subsidiaries to comply, with all
Environmental Laws applicable to the ownership, lease or use of all Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (ii) neither the Borrower nor any of its Subsidiaries
will generate, use, treat, store, release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of Hazardous Materials
on any Real Property now or hereafter owned, leased or operated by the Borrower
or any of its Subsidiaries, or transport or permit the transportation of
Hazardous Materials to or from any such Real Property, except to the extent that
the failure to comply with the requirements specified in clause (i) or (ii)
above, either
-39-
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect. If required to do so under any applicable directive or
order of any governmental agency, the Borrower agrees to undertake, and cause
each of its Subsidiaries to undertake, any clean up, removal, remedial or other
action necessary to remove and clean up any Hazardous Materials from any Real
Property owned, leased or operated by the Borrower or any of its Subsidiaries in
accordance with, in all material respects, the requirements of all applicable
Environmental Laws and in accordance with, in all material respects, such orders
and directives of all governmental authorities, except to the extent that the
Borrower or such Subsidiary is contesting such order or directive in good faith
and by appropriate proceedings and for which adequate reserves have been
established to the extent required by generally accepted accounting principles.
SECTION 8. NEGATIVE COVENANTS. The Borrower hereby covenants and
agrees, as of the Operative Date and thereafter for so long as this Agreement is
in effect and until the Commitments have terminated, no Notes are outstanding
and the Loans, together with interest, Fees and all other Obligations incurred
hereunder, are paid in full, that:
1.081 CHANGES IN BUSINESS. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any line of business other than the
business of outdoor advertising, including transit and bus shelter, stadium,
transport terminal and other similar out-of-home advertising services and any
administrative or similar activities reasonably related thereto.
1.082 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC. The
Borrower will not, and will not permit any Subsidiary to, wind up, liquidate or
dissolve its affairs, or enter into any transaction of merger or consolidation,
sell or otherwise dispose of all or any part of its property or assets (other
than inventory or obsolete equipment or excess equipment no longer needed in the
conduct of the business in the ordinary course of business) or purchase, lease
or otherwise acquire all or any part of the property or assets of any Person
(other than purchases or other acquisitions of inventory, leases, materials and
equipment in the ordinary course of business) or agree to do any of the
foregoing at any future time, except that the following shall be permitted:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into, or be liquidated into, the Borrower (so long as the Borrower is
the surviving corporation) or any other Subsidiary (so long as a Subsidiary
Guarantor, if a party thereto, is the surviving corporation), or all or any
part of its business, properties and assets may be conveyed, leased, sold
or transferred to the Borrower or any other Subsidiary Guarantor;
(b) capital expenditures to the extent within the limitations set
forth in Section 8.05 hereof;
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(c) the investments, acquisitions and transfers or dispositions of
properties permitted pursuant to Section 8.06;
(d) each of the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
such lease does not create a Capitalized Lease Obligation not otherwise
permitted by Section 8.04(d));
(e) licenses or sublicenses by the Borrower and its Subsidiary of
software, customer lists, trademarks and other intellectual property in the
ordinary course of business, provided, that such licenses or sublicenses
shall not interfere with the business of the Borrower or any Subsidiary;
(f) other sales or dispositions of assets (I) for cash in an amount
equal to the fair market value thereof as determined by the Borrower and/or
(II) in exchange for other assets permitted to be held under Section 8.01
provided that, in each case, (i) the assets so sold or disposed of,
together with all other assets, previously sold or disposed of pursuant to
this clause (f) after or during the Calculation Period applicable to such
sale or disposition, shall not have generated Adjusted EBITDA of the
Borrower during such Calculation Period (taken as one accounting period)
equal to 15% or more of the aggregate Adjusted EBITDA of the Borrower
during such Calculation Period (taken as one accounting period), (ii) the
assets so sold or disposed of, together with all other assets previously
sold or disposed of pursuant to this clause (f) after the Restatement
Effective Date, shall not have generated Adjusted EBITDA of the Borrower
during the period (taken as one accounting period) commencing on the
Restatement Effective Date and ending on the last day of the last month for
which financial statements of the Borrower are reasonably available equal
to 25% or more of the aggregate Adjusted EBITDA of the Borrower during such
period (taken as one accounting period) and (iii) the Net Cash Proceeds, if
any, of any such sale are applied to repay the Loans to the extent required
by Section 4.02(A)(c), and, provided further, that the sale or disposition
of the capital stock of any Subsidiary of the Borrower shall be prohibited
unless it is for all of the outstanding capital stock of such Subsidiary
owned by the Borrower;
(g) other sales or dispositions of assets in each case to the extent
the Required Banks have consented in writing thereto and subject to such
conditions as may be set forth in such consent;
(h) any Subsidiary may be liquidated into the Borrower; and
(i) Permitted Acquisitions provided that after giving effect thereto
and the related borrowings to finance same there would be no default under
Sections 8.11 through 8.13 or 9.08(B) or (C) determined on a PRO FORMA
basis as if such Permitted
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Acquisition and the related borrowings were consummated on the first day of
the 12-month period ending on the Measurement Date last to occur and with
pro forma adjustments to the Consolidated EBITDA of the Person being
acquired to give effect to contemplated cost savings as estimated in good
faith by the Borrower and agreed to by the Agent.
1.083 LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any such Subsidiary whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to the
Borrower or any of its Subsidiaries) or assign any right to receive income, or
file or permit the filing of any financing statement under the UCC or any other
similar notice of Lien under any similar recording or notice statute, except:
(a) Liens for taxes not yet due or Liens for taxes being contested in
good faith and by appropriate proceedings for which adequate reserves (in
the good faith judgment of the management of the Borrower) have been
established;
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business, such as carriers', warehousemen's and mechanics' Liens,
statutory landlord's Liens, and other similar Liens arising in the ordinary
course of business, and (x) which do not in the aggregate materially
detract from the value of such property or assets or materially impair the
use thereof in the operation of the business of the Borrower or any
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement, the other Credit
Documents or the Term Loan Documents;
(d) (x) Liens on assets of the Borrower and each Subsidiary existing
on the Consolidation Date and listed on Part A of Annex VIII hereto,
without giving effect to any subsequent extensions or renewals thereof, (y)
immaterial Liens on assets of the Borrower and each Subsidiary existing on
the Consolidation Date at the locations listed on Part B of Annex VIII and
(z) immaterial Liens on the assets of the Borrower and each Subsidiary
existing on the Operative Date at the locations listed on Part C of Annex
VIII, which Annex is to be provided toco the Agent within 30 days following
the Operative Date and to be satisfactory to the Agent;
-42-
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09
provided, that no cash or property is deposited or delivered to secure any
respective judgment or award (or any appeal bond in respect thereof, except
as permitted by the following clause (f));
(f) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the
ordinary course of business (exclusive of obligations in respect of the
payment for borrowed money) provided, that the aggregate amount of deposits
at any time pursuant to this clause (f) shall not exceed $500,000;
(g) Leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any of its
Subsidiaries;
(h) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(i) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(j) Purchase money Liens securing payables arising from the purchase
by the Borrower of any equipment or goods in the normal course of business,
provided that such payables shall not constitute Indebtedness;
(k) Any interest or title of a lessor or any lien on the interest or
title of a lessor under any lease permitted by this Agreement;
(l) Liens arising pursuant to purchase money mortgages relating to,
or security interests securing Indebtedness representing the purchase price
of, assets acquired by the Borrower or any Subsidiary Guarantor after the
Restatement Effective Date, provided that any such Liens attach only to the
assets so acquired and that all Indebtedness secured by Liens created
pursuant to this clause (l) shall not exceed $5,000,000 at any time
outstanding;
(m) Liens created pursuant to Capital Leases permitted pursuant to
Section 8.04(d);
(n) Liens on assets of Subsidiaries of the Borrower in favor of the
Borrower;
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(o) Liens securing Indebtedness permitted by Section 8.04(i) provided
that such Liens attach only to the assets (or to the assets of the Person
whose stock is being) acquired; and
(p) Liens on assets of the Borrower securing Indebtedness not in
excess of $1,000,000 at any time outstanding.
1.084 INDEBTEDNESS. The Borrower will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement, the other
Credit Documents and the Term Loan Documents;
(b) Indebtedness owing by (i) any Subsidiary to the Borrower or
another Subsidiary and (ii) the Borrower to any Subsidiary;
(c) Permitted Subordinated Debt;
(d) Capitalized Lease Obligations of the Borrower or any Subsidiary
Guarantor, provided that the aggregate Capitalized Lease Obligations under
all Capital Leases entered into after the Restatement Effective Date shall
not exceed $10,000,000;
(e) Existing Indebtedness, without giving effect to any subsequent
extension, renewal or refinancing thereof;
(f) Additional Subordinated Debt;
(g) to the extent same has been assumed by the Borrower, Indebtedness
evidenced by the promissory note originally executed by Holdings in favor
of Xxxxxxx X. Xxxxx (the "Xxxxx Note");
(h) Indebtedness incurred pursuant to purchase money mortgages
permitted by Section 8.03(l);
(i) Indebtedness of a Person, or secured by assets, acquired after
the Restatement Effective Date pursuant to a Permitted Acquisition provided
that such Indebtedness (x) existed at the time of such Permitted
Acquisition and was not created in connection therewith or in anticipation
thereof, (y) is not guaranteed in any respect by the Borrower or any of its
Subsidiaries, except to the extent such Person merges into, or such assets
are directly acquired by, the Borrower or such Subsidiary and (z) shall not
exceed in the aggregate for all Indebtedness permitted by this clause
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(i) $10,000,000 at any time outstanding, without giving effect to any
subsequent extension, renewal or refinancing thereof; and
(j) additional Indebtedness of the Borrower not to exceed an
aggregate outstanding principal amount of $5,000,000 at any time.
1.085 CAPITAL EXPENDITURES. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, incur Consolidated Capital Expenditures,
provided that the Borrower and any Subsidiary Guarantor may make Consolidated
Capital Expenditures (x) during the period from the Restatement Effective Date
through December 31, 1996 (taken as one accounting period) in an aggregate
amount not in excess of $3,000,000 plus the Additional Cap Ex for such period,
(y) during the fiscal year of the Borrower ended December 31, 1997, $12,000,000
plus the Additional Cap Ex for such fiscal year and (z) during each successive
fiscal year of the Borrower, in an aggregate amount not in excess of 105% of the
maximum amount for the prior fiscal year, determined by excluding the Additional
Cap Ex for such prior fiscal year, plus the Modified Additional Cap Ex for each
such fiscal year.
(b) In the event that the maximum amount which is permitted to be
expended in respect of Consolidated Capital Expenditures during any fiscal year
pursuant to Section 8.05(a) (without giving effect to this clause (b)) is not
fully expended during such fiscal year, the maximum amount which may be expended
during the immediately succeeding fiscal year pursuant to Section 8.05(a) shall
be increased by such unutilized amount provided that such increase shall not
exceed $5,000,000 in any fiscal year.
(c) In addition to the foregoing, the Borrower and any Subsidiary
Guarantor may make Consolidated Capital Expenditures in amounts in excess of
those permitted under Sections 8.05(a) and (b) provided that the amount of such
additional Consolidated Capital Expenditures shall not exceed the sum of (x) the
Available ECF Amount and (y) the Available Equity Amount in each case as
determined at the time of, but immediately prior to, the making thereof.
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1.087 SUBSIDIARIES; ETC. The Borrower will not (x) sell, assign or
otherwise encumber or dispose of, and will not permit any of its Subsidiaries
directly or indirectly to issue, sell, assign, pledge or otherwise encumber or
dispose of, any shares of a Subsidiary's capital stock or other securities (or
warrants, rights or options to acquire shares or other equity securities) of
such Subsidiary, except to the Borrower (to the extent otherwise permitted
hereunder) and except for dispositions permitted by Section 8.02 and (y) after
the Operative Date, create or permit to be created any new Subsidiary except to
the extent created in compliance with the second sentence of Section 8.06.
1.088 PREPAYMENTS OF INDEBTEDNESS, ETC. The Borrower will not, and
will not permit any of its Subsidiaries to:
(a) make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying
when due) or exchange of any Subordinated Debt, the Xxxxx Note or any other
Existing Indebtedness;
(b) amend or modify, or permit the amendment or modification of, any
provisions of any Subordinated Debt Documents; and/or
(c) amend, modify or change in any manner adverse to the interests of
the Banks the Certificate of Incorporation (including, without limitation,
by the filing of any certificate of designation) or By-Laws of the Borrower
or any agreement entered into by the Borrower, with respect to its capital
stock or enter into any new agreement in any manner adverse to the
interests of the Banks with respect to the capital stock of the Borrower;
and/or
(d) amend, modify or change, directly or indirectly, any covenant or
event of default in the Term Loan Agreement without the consent of the
Required Banks hereunder.
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1.089 DIVIDENDS, ETC. (a) The Borrower will not redeem, retire,
purchase or otherwise acquire, directly or indirectly, any Capital Stock of
Borrower or other evidence of ownership interest, or declare or pay dividends
upon any Capital Stock of Borrower or make any distribution of Borrower's
property or assets (any of the foregoing, a "Dividend"), provided that this
Section 8.09 will not prohibit, so long as no Event of Default shall have
occurred and is continuing or would occur as a consequence thereof, (i) the
repurchase, redemption or other acquisition or retirement for value of any
shares of Capital Stock of the Borrower from the estate of Xxxxxx X. Xxxxx
solely out of the proceeds of any policy of insurance maintained to provide
funds for such purpose, (ii) to the extent the Indebtedness evidenced by such
Note has not been assumed by the Borrower, the payment of dividends to Holdings
in an annual amount not to exceed $120,000 to fund payments of interest on the
Xxxxx Note, (iii) the payment of cash Dividends to Holdings to the extent the
proceeds are promptly used to pay administrative costs arising in the ordinary
course of business and cash interest when due on the Permitted Holdings Debt and
(iv) the payment of cash Dividends to Holdings to be promptly utilized by
Holdings to purchase its Common Stock (or options or warrants to purchase such
Common Stock) from officers, employees and directors (or their estates) upon the
death, permanent disability, retirement or termination of employment of any such
Person or otherwise in accordance with any stock option plan or any employee
stock ownership plan or any warrant plan.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance
or restriction which prohibits or otherwise restricts (A) the ability of any
Subsidiary to (a) pay dividends or make other distributions or pay any
Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or
advances to the Borrower or any Subsidiary or (c) transfer any of its
properties or assets to the Borrower or any Subsidiary or (B) the ability of
the Borrower or any other Subsidiary of the Borrower to create, incur, assume
or suffer to exist any Lien upon its property or assets to secure the
Obligations, other than prohibitions or restrictions existing under or by
reason of: (i) this Agreement, the other Credit Documents and any
Subordinated Debt Indenture (once executed); (ii) applicable law; (iii)
customary non-assignment provisions entered into in the ordinary course of
business and consistent with past practices; (iv) any restriction or
encumbrance with respect to a Subsidiary of the Borrower imposed pursuant to
an agreement which has been entered into for the sale or disposition of all
or substantially all of the capital stock or assets of such Subsidiary, so
long as such sale or disposition is permitted under this Agreement; and (v)
Liens permitted under Section 8.03 and any documents or instruments governing
the terms of any Indebtedness or other obligations secured by any such Liens,
provided that such prohibitions or restrictions apply only to the assets
subject to such Liens.
8.10 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any Subsidiary to, sell, lease, license, transfer, exchange, or
otherwise dispose of any of its properties, assets or services to, or purchase,
lease, or license the use of any property,
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assets or services from, or transfer funds to, or enter into any contract,
agreement, understanding, loan, advance or guarantee with, to or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction," whether
constituting one transaction or a series of related transactions), unless (a)
such Affiliate Transaction is on terms that are no less favorable to the
Borrower or the relevant Subsidiary than those that would have been obtained in
a comparable transaction by the Borrower or such Subsidiary with an unrelated
person and (b) Borrower delivers to the Agent (i) with respect to any Affiliate
Transaction involving aggregate payments in excess of $250,000, an officers'
certificate setting forth a resolution of the Board of Directors of the Borrower
approved by a majority of the members of the Board of Directors (and a majority
of the disinterested members of the Board of Directors, if any) certifying that
such Affiliate Transaction complies with clause(a) above and (ii) with respect
to any Affiliate Transaction involving aggregate payments in excess of $3.0
million, an opinion as to the fairness, from a financial point of view, of such
Affiliate Transaction to the Borrower or such Subsidiary issued by an
independent investment banking firm of national standing with total assets in
excess of $1.0 billion. The foregoing limitation does not limit, and shall not
apply to, (i) the payment of reasonable annual compensation to directors or
executive officers of the Borrower or any Subsidiary thereof, (ii) transactions
described in Annex IX hereto, provided that the fees described in Annex IX shall
accrue and not be paid at any time that a Default or an Event of Default
specified in Section 9.01 shall occur and be continuing or (iii) payments by the
Borrower to Holdings under the Tax Sharing Agreement.
8.11 FIXED CHARGE COVERAGE RATIO. The Borrower will not permit the
ratio of (i) Adjusted EBITDA of the Borrower to (ii) Consolidated Fixed Charges
of the Borrower for any 12 month period (taken as one accounting period) ending
on a Measurement Date (or if less the period from the Initial Borrowing Date to
such Measurement Date) to be less than 1.00 to 1.
8.12 MINIMUM MODIFIED ADJUSTED EBITDA. The Borrower will not permit
Modified Adjusted EBITDA of the Borrower for any 12 month period (taken as one
accounting period) ending on a Measurement Date occurring in a period set forth
below to be less than (A) the amount set forth opposite such period plus (B) the
Aggregate Acquired EBITDA as of such Measurement Date:
Period Amount
------ ------
Operative Date through
December 30, 1997 $57,000,000
December 31, 1997 through
December 30, 1998 $58,400,000
December 31, 1998 through
December 30, 1999 $60,750,000
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December 31, 1999 through
December 30, 2000 $65,750,000
December 31, 2000 and
thereafter $70,500,000
8.13 SENIOR LEVERAGE RATIO. On and after the Consolidation Date
the Borrower will not permit the Senior Leverage Ratio as of any Measurement
Date occurring in a period set forth below to be more than the ratio set
forth opposite such period:
Period Ratio
------ -----
Operative Date through
December 30, 1997 5.50 to 1.0
December 31, 1997 through
December 30, 1998 5.00 to 1.0
December 31, 1998 and
thereafter 4.50 to 1.0
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
1.091 PAYMENTS. The Borrower shall (i) default in the payment when
due of any principal of the Loans or (ii) default, and such default shall
continue for five or more days, in the payment when due of any interest on the
Loans or any Fees or any other amounts owing hereunder or under any other Credit
Document; or
1.092 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by the Borrower herein or in any other Credit Document or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto shall prove to be untrue in any material respect on the date as of
which made or deemed made; or
1.093 COVENANTS. The Borrower shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 7.10, 7.11 or 8, or (b) default in the due performance or observance by
it of any term, covenant or agreement (other than those referred to in Section
9.01, 9.02 or clause (a) of this Section 9.03) contained in this Agreement and
such default shall continue unremedied for a period of at least 30 days after
notice to the defaulting party by the Agent or the Required Banks; or
1.094 DEFAULT UNDER OTHER AGREEMENTS. (a) Holdings, the Borrower or
any of its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
applicable thereto or (ii) default in the observance or performance of any
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
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event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause any such Indebtedness to become due prior to its stated maturity; or (b)
any such Indebtedness of Holdings, the Borrower or any of its Subsidiaries shall
be declared to be due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof,
provided that it shall not constitute an Event of Default pursuant to this
Section 9.04 unless the principal amount of such Indebtedness exceeds $2,500,000
individually or in the aggregate at any one time; or
1.095 BANKRUPTCY, ETC. Holdings, the Borrower or any of its
Subsidiaries shall commence a voluntary case concerning itself under Title 11 of
the United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against Holdings, the Borrower or any of its Subsidiaries and the
petition is not controverted within 10 days, or is not dismissed within 60 days,
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of Holdings, the Borrower or any of its Subsidiaries; or Holdings, the
Borrower or any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to Holdings, the Borrower or any of its
Subsidiaries; or there is commenced against Holdings, the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or Holdings, the Borrower or any of its Subsidiaries is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; Holdings, the Borrower or any of its Subsidiaries
suffers any appointment of any custodian or the like for it or any substantial
part of its property to continue undischarged or unstayed for a period of 60
days; or Holdings, the Borrower or any of its Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate action is taken by
Holdings, the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
1.096 ERISA. (a) A single-employer plan (as defined in Section 4001
of ERISA) established by the Borrower, any of its Subsidiaries or any ERISA
Affiliate shall fail to maintain the minimum funding standard required by
Section 412 of the Code for any plan year or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code or shall provide security to induce the issuance of such waiver or
extension, (b) any Plan is or shall have been or is likely to be terminated or
the subject of termination proceedings under ERISA or an event has occurred
entitling the PBGC to terminate a Plan under Section 4042(a) of ERISA, (c) any
Plan shall have an Unfunded Current Liability or (d) the Borrower or a
Subsidiary or any ERISA Affiliate has incurred or is likely to incur a material
liability to or on account of a termination of or a withdrawal from a Plan under
Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA; and there shall result
from any such event or events described in the preceding clauses of this
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Section 9.06 the imposition of a Lien upon the assets of Holdings, the Borrower
or any Subsidiary, the granting of a security interest, or a liability or a
material risk of incurring a liability to the PBGC or a Plan or a trustee
appointed under ERISA or a penalty under Section 4971 of the Code, in each case
which would have, in the opinion of the Required Banks a Material Adverse
Effect; or
1.097 CREDIT DOCUMENTS. Any Security Document or Guaranty (once
executed) shall cease to be in full force and effect (except as provided for
therein), or any Security Document shall cease to give the Collateral Agent any
Lien encumbering assets with an aggregate fair market value in excess of
$2,500,000 (and, if encumbering assets with a fair market value of less than
$2,500,000, for a period greater than thirty or more days), or any material
rights, powers and privileges purported to be created thereby in favor of the
Collateral Agent or any Credit Party shall default in any material respect in
the due performance or observance of any term, covenant or agreement on its part
to be performed or observed pursuant to any such Security Document or Guaranty
or shall disaffirm or seek to disaffirm any Guaranty; or
1.098 HOLDINGS. (A) Holdings shall after the Restatement Effective
Date (i) incur any Indebtedness except for Permitted Holdings Debt and the
Holdings Guaranty, (ii) grant or create any Lien on any of its assets that
secures Indebtedness other than pursuant to the Holdings Pledge Agreement, (iii)
modify or amend, or prepay, any Permitted Holdings Debt, (iv) engage in any
business or activity other than the ownership of all of the capital stock of the
Borrower and administrative activities directly related thereto, (v) sell or
dispose of any of, or otherwise cease to own all of, the capital stock of the
Borrower, (vi) change its fiscal quarters or fiscal year from those applicable
also to the Borrower, (vii) fail to maintain its own payroll and books of
account and bank accounts separate from those of the Borrower and its
Subsidiaries, (viii) fail to pay its liabilities, including all administrative
expenses, from its own separate assets, (ix) fail to separately identify and
segregate its assets from the assets of the Borrower and its Subsidiaries and/or
(x) amend, modify or change in any way adverse to the interests of the Banks,
its Certificate of Incorporation (including, without limitation, by the filing
or modification of any certificate of designation) or By-Laws or any agreement
entered into by Holdings with respect to its capital stock, except in each case
(a) as expressly required by any of the Shareholders' Agreements, Management
Agreements, Tax Sharing Agreements and subscription agreements with members of
management, all as in effect on the Restatement Effective Date, (b) as expressly
required by law and (c) Holdings issuing Capital Stock in any public offering to
the extent the proceeds thereof are used to repay the Loans as required by
Section 4.02(A)(d) hereof;
(B) The Holdings Leverage Ratio as of any Measurement Date occurring
in a period set forth below is more than the ratio set forth opposite such
period:
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Period Ratio
------ -----
Operative Date through
June 29, 1998 6.50 to 1.0
June 30, 1998 through
December 30, 1999 6.25 to 1.0
December 31, 1999 and
thereafter 6.00 to 1.0
(C) The ratio of (i) Adjusted EBITDA of Holdings to (ii) Consolidated
Interest Expense of Holdings for any 12 month period (taken as one accounting
period) ending on a Measurement Date occurring in a period set forth below is
less than the ratio set forth opposite such period:
Period Ratio
------ -----
Operative Date through
December 30, 1997 1.50 to 1.0
December 31, 1997 through
December 30, 1998 1.75 to 1.0
December 31, 1998 through
December 30, 1999 1.85 to 1.0
December 31, 1999 through
December 30, 2001 2.00 to 1.0
December 31, 2001 and
thereafter 2.50 to 1.0
1.099 JUDGMENTS. One or more judgments or decrees shall be entered
against Holdings, the Borrower and/or any of its Subsidiaries involving a
liability of $2,500,000 or more or in the aggregate (not paid or to the extent
not covered by insurance) and any such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal within 60 days from the
entry thereof;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Agent shall, upon the written request of the
Required Banks, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Agent or any Bank to
enforce its claims against the Borrower, except as otherwise specifically
provided for in this Agreement (provided that, if an Event of Default specified
in Section 9.05 shall occur with respect to the Borrower, the result which would
occur upon the giving of written notice by the Agent as specified in clauses (i)
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Commitment terminated, whereupon the Commitment of each
Bank shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable
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without any other notice of any kind; (ii) declare the principal of and any
accrued interest in respect of all Loans and all obligations owing hereunder to
be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and/or (iii) enforce, as Collateral Agent (or
direct the Collateral Agent to enforce), any or all of the Liens and security
interests created pursuant to the Security Documents.
SECTION 10. DEFINITIONS. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acquisition Agreement" shall have the meaning provided in the
Consolidated Credit Agreement.
"Additional Cap Ex" for any fiscal year (or portion thereof) shall
mean an amount equal to the aggregate of (x) the "Prior Year Cap Ex" of each
Person acquired by the Borrower and its Subsidiaries during such fiscal year (or
portion thereof) pursuant to a Permitted Acquisition times (y) the "Remaining
Percentage" applicable to such acquisition, with the "Prior Year Cap Ex" for
each such Person to be 105% of the consolidated capital expenditures for such
Person for the fiscal year of such Person last ended prior to such acquisition
and "Remaining Percentage" for an acquisition shall mean the percentage
determined by dividing the days remaining in such fiscal year after such
acquisition by the total number of days in such fiscal year.
"Additional Mortgages" shall have the naming provided in Section
7.10(c).
"Additional Subordinated Debt" shall mean subordinated debt issued by
the Borrower after the Operative Date, provided that (i) the terms and
conditions (other than pricing and maturities, provided that no scheduled
payment of principal shall be due and payable prior to the Final Maturity Date)
are (in the reasonable opinion of the Agent) substantially the same as those
contained in the Permitted Subordinated Debt or are consented to by the Required
Banks and (ii) the Additional Subordinated Debt shall not exceed in the
aggregate (x) $50 million less (y) the aggregate principal amount of Permitted
Holdings Debt.
"Adjusted Additional Cap Ex" for any fiscal year shall mean the
Additional Cap Ex for such year determined in each case as if the Remaining
Percentage for such year were equal to 100%.
"Adjusted AR Percentage" shall mean (x) for each Bank that is a
Defaulting Bank, zero and (y) for each other Bank the percentage obtained by
dividing such Bank's AR Commitment at such time by the Adjusted Total AR
Commitment at such time.
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"Adjusted Cash Flow" for any fiscal year shall mean Consolidated Net
Income of the Borrower for such fiscal year (after provision for taxes) plus the
amount of all net non-cash charges (including, without limitation, depreciation,
deferred tax expense, non-cash interest expense, amortization and other non-cash
charges) that were deducted in arriving at such Consolidated Net Income for such
fiscal year, minus the amount of all non-cash gains and gains from sales of
assets (other than sales of inventory and equipment in the normal course of
business) that were added in arriving at such Consolidated Net Income for such
fiscal year.
"Adjusted EBITDA" of any Person shall mean, for any period (x) the
Consolidated EBITDA of such Person for such period plus or minus (y) the
adjustments thereto provided for in Exhibit G.
"Adjusted RC Percentage" shall mean (x) at a time when no Bank Default
exists, for each Bank such Bank's RC Percentage and (y) at a time when a Bank
Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii) for
each Bank that is a Non-Defaulting Bank, the percentage determined by dividing
such Bank's Revolving Commitment at such time by the Adjusted Total Revolving
Commitment at such time, it being understood that all references herein to
Revolving Commitments and the Adjusted Total Revolving Commitment at a time when
the Total Revolving Commitment or Adjusted Total Revolving Commitment, as the
case may be, has been terminated shall be references to the Revolving Loan
Commitments or Adjusted Total Revolving Commitment, as the case may be, in
effect immediately prior to such termination, PROVIDED that (A) no Bank's
Adjusted RC Percentage shall change upon the occurrence of a Bank Default from
that in effect immediately prior to such Bank Default if, after giving effect to
such Bank Default and any repayment of Revolving Loans and Swingline Loans at
such time pursuant to Section 4.02(A)(a) or otherwise, the sum of (i) the
aggregate outstanding principal amount of Revolving Loans of all Non-Defaulting
Banks plus (ii) the aggregate outstanding principal amount of Swingline Loans
plus (iii) the Letter of Credit Outstandings, exceeds the Adjusted Total
Revolving Loan Commitment; (B) the changes to the Adjusted RC Percentage that
would have become effective upon the occurrence of a Bank Default but that did
not become effective as a result of the preceding clause (A) shall become
effective on the first date after the occurrence of the relevant Bank Default on
which the sum of (i) the aggregate outstanding principal amount of the Revolving
Loans of all Non-Defaulting Banks plus (ii) the aggregate outstanding principal
amount of the Swingline Loans plus (iii) the Letter of Credit Outstandings is
equal to or less than the Adjusted Total Revolving Commitment; and (C) if (i) a
Non-Defaulting Bank's Adjusted RC Percentage is changed pursuant to the
preceding clause (B) and (ii) any repayment of such Bank's Revolving Loans, or
of Unpaid Drawings or of Swingline Loans, that were made during the period
commencing after the date of the relevant Bank Default and ending on the date of
such change to its Adjusted RC Percentage must be returned to the Borrower as a
preferential or similar payment in any bankruptcy or similar proceeding of the
Borrower, then the change to such Non-Defaulting Bank's Adjusted RC Percentage
effected
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pursuant to said clause (B) shall be reduced to that positive change, if any, as
would have been made to its Adjusted RC Percentage if (x) such repayments had
not been made and (y) the maximum change to its Adjusted RC Percentage would
have resulted in the sum of the outstanding principal of Revolving Loans made by
such Bank plus such Bank's new Adjusted RC Percentage of the outstanding
principal amount of Swingline Loans and of Letter of Credit Outstandings
equalling such Bank's Revolving Commitment at such time.
"Adjusted Revolving Commitment" for each Non-Defaulting Bank shall
mean at any time the product of such Bank's Adjusted RC Percentage and the
Adjusted Total Revolving Commitment.
"Adjusted Total AR Commitment" shall mean at any time the Total AR
Commitment less the aggregate AR Commitments of all Defaulting Banks.
"Adjusted Total Revolving Commitment" shall mean at any time the Total
Revolving Commitment less the aggregate Revolving Commitments of all Defaulting
Banks.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Agent appointed pursuant to
Section 11.09.
"Aggregate Acquired EBITDA" shall mean, as at any Measurement Date, an
amount equal to the aggregate of 85% of the "12-month Consolidated EBITDA" of
each Person acquired by the Borrower and its Subsidiaries after the Restatement
Effective Date, with the "12-month Consolidated EBITDA" of each such Person to
be the Consolidated EBITDA of such Person for the 12 months last ended prior to
the acquisition of such Person with a pro forma adjustment thereto to give
effect to contemplated cost savings as estimated in good faith by the Borrower
and agreed to by the Agent.
"Agreement" shall mean this Amendment and Restatement to Credit
Agreement, as the same may be from time to time further modified, amended and/or
supplemented.
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"Anticipated Reinvestment Amount" shall mean, with respect to any
Reinvestment Election, the amount specified in the Reinvestment Notice delivered
by the Borrower in connection therewith as the amount of the Net Cash Proceeds
from the related Permitted Asset Sale that the Borrower intends to use to
purchase, construct or otherwise acquire Reinvestment Assets.
"Applicable Base Rate Margin" shall mean 1.75% less the Margin
Reduction Discount, if any.
"Applicable Eurodollar Margin" shall mean 2.75% less the Margin
Reduction Discount, if any.
"Applicable Percentage" shall mean the percentage obtained by dividing
(x) the aggregate principal amount of AR Loans outstanding on the AR Termination
Date by (y) $212,500,000.
"AR Commitment" shall mean, with respect to each Bank, the amount set
forth opposite such Bank's name in Annex I hereto directly below the column
entitled "AR Commitment," as the same may be reduced from time to time pursuant
to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to time as a result of
assignments to or from such Bank pursuant to Section 12.04.
"AR Commitment Commission" shall have the meaning provided in Section
3.01(a).
"AR Facility" shall mean the Facility evidenced by the Total AR
Commitment.
"AR Loan" shall have the meaning provided in Section 1.01(A)(a).
"AR Maturity Date" shall mean September 30, 2003.
"AR Note" shall have the meaning provided in Section 1.05(a).
"AR Percentage" shall mean, at any time, that percentage equal to 100%
multiplied by a fraction the numerator of which is the outstanding principal
amount of the AR Loans and the denominator of which is the sum of (i) the
outstanding principal amount of the AR Loans and (ii) the outstanding principal
amount of the Term Loans provided that for the purposes of any determination
made under Section 4.02 (A)(d) during the period from the Operative Date to the
date 180 days after the Operative Date, "AR Percentage" shall mean 100%.
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"AR Termination Date" shall mean September 30, 1999 or if earlier the
date on which the Total AR Commitment is terminated.
"Asset Sale" shall mean and include (x) the sale, transfer or other
disposition by the Borrower or any Subsidiary to any Person other than the
Borrower or any Subsidiary of any asset of the Borrower or such Subsidiary
(other than sales, transfers or other dispositions in the ordinary course of
business of inventory and/or obsolete or excess equipment and other than sales
in which the Net Cash Proceeds are $50,000 or less) and/or (y) the receipt by
the Borrower or any Subsidiary of any insurance, condemnation or similar
proceeds in connection with a casualty or taking of any of its assets.
"Assignment Agreement" shall mean an Assignment and Assumption
Agreement substantially in the form of Exhibit H hereto.
"Authorized Officer" shall mean any senior officer of the Borrower
designated as such in writing to the Agent by the Borrower in each case to the
extent acceptable to the Agent.
"Available ECF Amount" shall mean at any time, an amount equal to (A)
50% of Excess Cash Flow determined for the fiscal year of the Borrower
(commencing with the fiscal year ending on December 31, 1999) then last ended
less (B) the aggregate Consolidated Capital Expenditures theretofore made during
the then current fiscal year pursuant to Section 8.05(c)(x).
"Available Equity Amount" shall mean at any time (A) an amount equal
to the aggregate net cash proceeds at such time from the sale or issuance of
equity by Holdings or the Borrower after the Consolidation Date not required to
be utilized to repay (x) AR Loans under Section 4.02(A)(d) (whether or not AR
Loans are then outstanding) and (y) the Term Loans under Section 3.02(A)(c) the
Term Loan Agreement less (B) the aggregate of any amounts theretofore expended
after the Restatement Effective Date as permitted by Section 8.05(c)(y) of this
Agreement to the extent in excess of the Available ECF Amount at such time.
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of Loans or
to fund its portion of any unreimbursed payments under Section 2.05(c) or (ii) a
Bank having notified the Agent and/or the Borrower that it does not intend to
comply with the obligations under Section 1.01 or under Section 2.05(c), in the
case of either (i) or (ii) as a result of the appointment of a
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receiver or conservator with respect to such Bank at the direction or request of
any regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher, (i) the rate which is
1/2 of 1% in excess of the Federal Funds Effective Rate and (ii) the Prime
Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall mean Universal Outdoor, Inc., an Illinois
corporation.
"Borrower Pledge Agreement" shall mean the Pledge Agreement in the
form of Exhibit C-1 hereto, as amended by the Amendment in the form of Exhibit
C-2 hereto and as the same may be subsequently amended, modified or supplemented
from time to time.
"Borrowing" shall mean the incurrence of (i) Swingline Loans by the
Borrower from BTCo on a given date and (ii) one Type of Loan pursuant to a
single Facility by the Borrower from all of the Banks having Commitments with
respect to such Facility on a PRO RATA basis on a given date (or resulting from
conversions on a given date), having in the case of Eurodollar Loans the same
Interest Period; provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of any related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in U.S. dollar deposits in the interbank Eurodollar market.
"Calculation Period" shall mean, with respect to any sale or
disposition of assets made pursuant to Section 8.02(f), the last 12 month period
for which financial statements of the Borrower are reasonably available.
"Capital Lease" as applied to any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
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"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock, whether or not voting, including but not limited to common stock,
preferred stock, convertible debentures, warrants, options or similar rights to
acquire such capital stock, and all agreements, instruments and documents
convertible, in whole or in part, into any one or more or all of the foregoing.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Bank, (y)
any domestic commercial bank of recognized standing having capital and surplus
in excess of $500,000,000 or (z) any bank (or the parent company of such bank)
whose short-term commercial paper rating from Standard & Poor's Corporation
("S&P") is at least A-1 or the equivalent thereof or from Xxxxx'x Investors
Service, Inc. ("Xxxxx'x") is at least P-1 or the equivalent thereof (any such
bank, an "Approved Bank"), in each case with maturities of not more than six
months from the date of acquisition, (iii) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications specified
in clause (ii) above, (iv) commercial paper issued by any Bank or Approved Bank
or by the parent company of any Bank or Approved Bank and commercial paper
issued by, or guaranteed by, any industrial or financial company with a
short-term commercial paper rating of at least A-1 or the equivalent thereof by
S&P or at least P-1 or the equivalent thereof by Xxxxx'x (any such company, an
"Approved Company"), or guaranteed by any industrial company with a long term
unsecured debt rating of at least A or A2, or the equivalent of each thereof,
from S&P or Xxxxx'x, as the case may be, and in each case maturing within six
months after the date of acquisition and (v) investments in money market funds
substantially all of whose assets are comprised of securities of the type
described in clauses (i) through (iv) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection with such Asset Sale, other
than the portion of such deferred payment constituting interest, but only as and
when so received) and/or insurance or condemnation proceeds received by the
Borrower and/or any Subsidiary from such Asset Sale.
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"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq.
"Change of Control" shall mean (i) Holdings shall cease to own legally
and beneficially 100% of the outstanding capital stock of the Borrower, (ii)
Management Investors or their Permitted Transferees shall cease to be the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of
75% or more (on a fully diluted basis) of the Common Stock so beneficially owned
by the Management Investors on the Operative Date, (iii) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or
more Permitted Holders, is or becomes the beneficial owner (as defined in clause
(ii) above, except that a person shall be deemed to have "beneficial ownership"
of all shares that any such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 30% of the total voting and economic ownership
interests of Holdings; PROVIDED, HOWEVER, that the Permitted Holders
"beneficially own" (as defined in clause (ii) above), directly or indirectly, in
the aggregate a lesser percentage of the total voting and economic ownership
interests of Holdings than such other person and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of Holdings, (iv) during any
period of two consecutive years individuals who at the beginning of such period
constituted the Board of Directors of Holdings (together with any new directors
whose election by such Board of Directors or whose nomination for election by
the stockholders of Holdings was approved by either (i) the Permitted Holders or
(ii) a vote of a majority of the directors of Holdings then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of Holdings then in office or
(v) any "Change of Control" or similar term as defined in any Subordinated Debt
Documents.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents.
"Collateral Agent" shall mean the Agent acting as collateral agent for
the Banks.
"Commitment" shall mean, with respect to each Bank, such Bank's AR
Commitment and Revolving Commitment, if any.
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"Commitment Commission" shall mean and include AR Commitment
Commission and RC Commitment Commission.
"Common Stock" shall mean the common stock of Holdings.
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events all amounts expended or capitalized under Capital
Leases but excluding any amount representing capitalized interest) by the
Borrower and its Subsidiaries during that period that, in conformity with GAAP,
are or are required to be included in the property, plant or equipment reflected
in the consolidated balance sheet of the Borrower and its Subsidiaries, provided
that Consolidated Capital Expenditures shall in any event exclude the purchase
price paid in connection with any Permitted Acquisition (whether or not
allocable to property, plant and equipment).
"Consolidated Cash Interest Expense" of any Person shall mean, for any
period, Consolidated Interest Expense of such Person, but excluding, however,
interest expense not payable in cash and amortization of discount and deferred
issuance and financing costs.
"Consolidated Credit Agreement" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
"Consolidated Current Assets" shall mean, as to any Person at any
time, the current assets (other than cash and Cash Equivalents) of such Person
and its Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, as to any Person at any
time, the current liabilities of such Person and its Subsidiaries determined on
a consolidated basis in accordance with GAAP, but excluding all short-term
Indebtedness for borrowed money and the current portion of any long-term
Indebtedness of such Person or its Subsidiaries, in each case to the extent
otherwise included therein.
"Consolidated Debt" of any Person shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness of
such Person and its Subsidiaries on a consolidated basis as determined in
accordance with GAAP.
"Consolidated EBIT" of any Person shall mean, for any period, (A) the
sum of the amounts for such period for such Person of (i) Consolidated Net
Income, (ii) provisions for taxes based on income, (iii) Consolidated Interest
Expense and (iv) losses on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary losses less (B) the amount for such
period of gains on sales of assets (excluding sales in the
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ordinary course of business) and other extraordinary gains, all as determined on
a consolidated basis for such Person and its Subsidiaries in accordance with
GAAP.
"Consolidated EBITDA" of any Person shall mean, for any period, the
sum of the amounts for such period for such Person of (i) Consolidated EBIT,
(ii) depreciation expense and (iii) amortization expense, all as determined on a
consolidated basis for such Person and its Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charges" of any Person shall mean, for any period,
the sum, without duplication, for such Person of the amounts for such period of
(i) Consolidated Cash Interest Expense, (ii) Dividends paid to Holdings, (iii)
Consolidated Capital Expenditures (x) made other than pursuant to Section
8.05(c) and (y) paid in cash, (iv) taxes paid or payable in cash and (v)
scheduled payments on the Loans and Existing Indebtedness, all as determined on
a consolidated basis for such Person and its Subsidiaries in accordance with
GAAP.
"Consolidated Interest Expense" of any Person shall mean, for any
period, total interest expense (including that attributable to Capital Leases in
accordance with GAAP) of such Person and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of such Person and its
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Agreements.
"Consolidated Net Income" of any Person (a "Designated Person") shall
mean for any period, the net income (or loss) of such Designated Person and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP, provided that there shall
be (A) deducted, in the case of the Borrower, any Dividends paid to Holdings and
(B) excluded (i) the income (or loss) of any Person (other than Subsidiaries of
the Designated Person) in which any other Person (other than the Designated
Person or any of its Subsidiaries) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to the Designated
Person or any of its Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of the Designated Person or is merged into or consolidated with the Designated
Person or any of its Subsidiaries or that Person's assets are acquired by the
Designated Person or any of its Subsidiaries, (iii) the income of any Subsidiary
of the Designated Person to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) Transaction Expenses, (v) barter revenues
and barter expenses, in each case other than those relating to goods reasonably
expected to be used in the ordinary course of business and (vi) compensation
expense resulting from the issuance of capital stock, stock
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options or stock appreciation rights issued to employees, including officers, of
the Designated Person or any Subsidiary, or the exercise of such options or
rights, in each case to the extent the obligation (if any) associated therewith
is not expected to be settled by the payment of cash by the Designated Person or
any Affiliate of the Designated Person and compensation expense resulting from
the repurchase of any such capital stock, options and rights.
"Consolidated Senior Debt" of any Person shall mean, as of any date of
determination, (x) the Consolidated Debt of such Person less (y) all Permitted
Subordinated Debt included in determining such Consolidated Debt.
"Consolidation Date" shall have the meaning provided in the
Consolidated Credit Agreement.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intending to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof, provided however, that
the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Notes, the Security
Documents, any documents executed in connection therewith and the Guaranties.
"Credit Event" shall mean the making or continuance of a Loan or the
issuance of a Letter of Credit.
"Credit Party" shall mean the Borrower and each Guarantor.
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"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Designated UOH Stockholders" shall mean the Management Investors,
Xxxxx Investment Associates V, L.P. and Xxxxx Equity Partners V, L.P.
"Dividends" shall have the meaning provided in Section 8.09.
"Domestic Subsidiary" shall mean a Subsidiary of the Borrower that is
organized under the laws of the United States or any state thereof.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demand letters, claims, liens, notices of noncompliance
or violation, investigations (other than internal reports prepared by the
Borrower or any of its Subsidiaries solely in the ordinary course of such
Person's business and not in response to any third party action or request of
any kind) or proceedings relating to any Environmental Law or any permit issued,
or any written approval given, under any such Environmental Law (hereafter,
"Claims"), including, without limitation, (a) any and all Claims by governmental
or regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guide, policy and rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or Hazardous Materials, including, without limitation, CERCLA;
RCRA; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section
1251 ET SEQ.; the Toxic Substances Control Act, 15 U.S.C. Section 7401 ET SEQ.;
the Clean Air Act, 42 U.S.C. Section 7401 ET SEQ.; the Safe Drinking Water Act,
42 U.S.C. Section 3808 ET SEQ.; the Oil Pollution Act of 1990, 33 U.S.C.
Section 2701 ET SEQ. and any applicable state and local or foreign counterparts
or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the Initial Borrowing
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Date and any subsequent provisions of ERISA, amendatory thereof, supplemental
thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Holdings, the Borrower or a Subsidiary would be
deemed to be a "single employer" within the meaning of Sections 414(b), (c), (m)
and (o) of the Code.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period for
a Eurodollar Loan, (i) the offered quotation to first-class banks in the
interbank Eurodollar market by the Agent for dollar deposits of amounts in same
day funds comparable to the outstanding principal amount of the Eurodollar Loan
of the Agent for which an interest rate is then being determined with maturities
comparable to the Interest Period to be applicable to such Eurodollar Loan,
determined as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period divided (and rounded
upward to the next whole multiple of 1/16 of 1%) by (ii) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in respect
of Eurocurrency liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any fiscal year, the remainder of
(i) the sum of (x) Adjusted Cash Flow for such fiscal year and (y) the decrease,
if any, in Working Capital from the first day to the last day of such fiscal
year, plus (ii) to the extent not included in (i) above, any amounts received by
the Borrower and its Subsidiaries in settlement of, or in payment of any
judgments resulting from, actions, suits or proceedings with respect to the
Borrower and/or its Subsidiaries from the first day to the last day of such
fiscal year, plus (iii) to the extent not included in (i) above, any amounts
received by the Borrower and/or its Subsidiaries in connection with the
repayment or redemption of any long-term promissory notes and/or preferred stock
of other Persons held by them, minus (iv) the sum of (x) the amount of
Consolidated Capital Expenditures (except to the extent (x) financed through the
incurrence of Indebtedness other than Revolving Loans or (y) made pursuant to
Section 8.05(c)) made during such fiscal year and (y) the increase, if any, in
Working Capital from the first day to the last day of such fiscal year and (z)
any repayments or prepayments of the principal amount of (I) Existing
Indebtedness, (II) AR Loans on and after the AR Termination Date pursuant to
Section 4.01 or 4.02(A)(b) hereof and/or (III) Term Loans pursuant to Section
3.01 or 3.02(A)(a) of the Term Loan Agreement.
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"Existing Indebtedness" shall have the meaning provided in Section
6.21.
"Existing Letters of Credit" shall mean each Letter of Credit under
the Original Credit Agreement that continued as a Letter of Credit under the
Restated Revolving Credit Agreement.
"Expiry Date" shall mean September 30, 2003.
"Facility" shall mean any of the credit facilities established under
this Agreement, I.E., the AR Facility and the Revolving Facility.
"Facing Fee" shall have the meaning provided in Section 3.01(d).
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next 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 for such day
on such transactions received by the Agent from three Federal Funds brokers of
recognized standing selected by the Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 8, including defined terms as used therein, are subject (to the
extent provided therein) to Section 12.07(a).
"Guarantor" shall mean and include Holdings and, once created, each
Subsidiary Guarantor.
"Guaranties" shall mean and include the Holdings Guaranty and, once
executed, the Subsidiary Guaranty.
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that
contained, electric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous waste," "restricted
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hazardous waste," "toxic substances," "toxic pollutants," "contaminants," or
"pollutants," or words of similar import, under any Environmental Law.
"Holdings" shall mean Universal Outdoor Holdings, Inc., a Delaware
corporation.
"Holdings Guaranty" shall mean the Guaranty executed by Holdings in
the form of Exhibit F hereto.
"Holdings Leverage Ratio" shall mean, at any Measurement Date, the
ratio of (x) Consolidated Debt of Holdings on such date to (y) Modified Adjusted
EBITDA of Holdings for the 12-month period (taken as one accounting period)
ending on such date.
"Holdings Pledge Agreement" shall mean the Pledge Agreement in the
form of Exhibit D-1 hereto, as amended by the Amendment in the form of Exhibit
D-2 hereto and as the same may be subsequently amended, modified or supplemented
from time to time.
"Indebtedness" of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (iii) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such indebtedness has been assumed, (v) all Capitalized Lease Obligations
of such Person, (vi) all obligations of such Person to pay a specified purchase
price for goods or services whether or not delivered or accepted, I.E.,
take-or-pay and similar obligations, (vii) all net obligations of such Person
under Interest Rate Agreements and (viii) all Contingent Obligations of such
Person, (other than Contingent Obligations arising from the guaranty by such
Person of the obligations of the Borrower and/or its Subsidiaries to the extent
such guaranteed obligations do not constitute Indebtedness and are otherwise
permitted hereunder) provided that Indebtedness shall not include trade payables
and accrued expenses, in each case arising in the ordinary course of business.
"Interest Period" with respect to any Loan shall mean the interest
period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap agreement,
any interest rate cap agreement, any interest rate collar agreement or other
similar agreement or arrangement designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates.
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"Investment" shall mean, with respect to any Person, all investments
by such Person in other Persons (including Affiliates and Subsidiaries) in the
forms of loans, guarantees, advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Capital Stock or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"Xxxxx" shall mean Xxxxx & Company, L.P., a Delaware limited
partnership doing business as Xxxxx & Company.
"Xxxxx Designees" shall mean Xxxxxxx X. Xxxxxxxx, Xxxx X.
XxXxxxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxx Xxxxxxxx XXX, Xxxxxxx Xxxxxxxx, Xxxxxxxx
Xxxxxx Xxxxx and Xxxxxx X. Xxxxx.
"LaSalle" shall mean LaSalle National Bank.
"Leasehold" of any Person means all of the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(c).
"Letter of Credit Issuer" shall mean BTCo, LaSalle with respect to the
Existing Letters of Credit and/or any Bank which at the request of the Borrower
and with the consent of the Agent agrees, in such Bank's sole discretion, to
become a Letter of Credit Issuer for purposes of issuing Letters of Credit
pursuant to Section 2.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.03(a).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"Loan" shall have the meaning provided in Section 1.01.
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"Management Agreements" shall mean those agreements with members of,
or with respect to, the management of Holdings, the Borrower or any Subsidiary
that were made available to the Agent pursuant to Section 5.06 of the Original
Credit Agreement.
"Management Investors" shall mean Xxxxxx Xxxxx and Xxxxx Xxxxxxx.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(B)(b).
"Margin Reduction Discount" shall mean zero, provided that the Margin
Reduction Discount shall be increased to 1/4 of 1%, 3/4 of 1%, 1-1/4% or 1-3/4%,
as the case may be, as specified in clauses (i), (ii), (iii) or (iv) below, at
any time on or after the Operative Date, when, and for so long as, the ratio set
forth in such clause has been satisfied as at the Relevant Determination Date:
(i) the Margin Reduction Discount shall be 1/4 of 1% in the event
that at the Relevant Determination Date the Modified Holdings Leverage
Ratio is equal to or greater than 5.0 to 1 but less than 6.0 to 1;
(ii) the Margin Reduction Discount shall be 3/4 of 1% in the event
that as at the Relevant Determination Date the Modified Holdings Leverage
Ratio is equal to or greater than 4.0 to 1 but less than 5.0 to 1;
(iii) the Margin Reduction Discount shall be 1-1/4% in the event that
as at the Relevant Determination Date the Modified Holdings Leverage Ratio
is equal to or greater than 3.0 to 1 but less than 4.0 to 1; or
(iv) the Margin Reduction Discount shall be 1-3/4% in the event that
as at the Relevant Determination Date the Modified Holdings Leverage Ratio
is less than 3.0 to 1.
The Modified Holdings Leverage Ratio shall be determined (x) for the last day of
a fiscal month, quarter or year, by delivery of an officer's certificate of the
Borrower to the Banks pursuant to Section 7.01(e)(i) and (y) for the date of the
incurrence of Consolidated Debt after delivery of the officer's certificate
referred to in clause (x), by delivery of an officer's certificate of the
Borrower to the Banks pursuant to Section 7.01(e)(ii), each of which
certificates shall set forth the calculation of the Modified Holdings Leverage
Ratio. The Margin Reduction Discount so determined shall apply, except as set
forth below, from five Business Days after the date on which such officer's
certificate is delivered to the Agent to the earlier of (x) the date on which
the next certificate is delivered to the Agent pursuant to Section 7.01(e)(i) or
(ii) and (y) the 30th day following the end of the fiscal month in which such
first certificate was delivered to the Agent pursuant to Section 7.01(e)(i).
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Notwithstanding anything to the contrary contained above, the Margin Reduction
Discount shall be zero (x) if no officer's certificate has been delivered to the
Banks pursuant to Section 7.01(e) (i) which sets forth the Modified Holdings
Leverage Ratio for the Relevant Determination Date or the financial statements
upon which any such calculations are based have not been delivered, until such a
certificate and/or financial statements are delivered and (y) at all times when
there shall exist a violation of Section 9.01 or an Event of Default. It is
understood and agreed that the Margin Reduction Discount as provided above shall
in no event be cumulative and only the Margin Reduction Discount applicable
under either clause (i), (ii), (iii) or (iv), if any, contained in this
definition shall be applicable.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on the
business, property, assets, liabilities, operations, condition (financial or
otherwise) or prospects of (x) Holdings and its Subsidiaries taken as a whole
and/or (y) the Borrower and its Subsidiaries taken as a whole.
"Maximum Swingline Amount" shall mean $5,000,000.
"Measurement Date" shall mean (x) the last day of each fiscal quarter
of the Borrower and (y) the last day of the last month ended prior to the date
of a Tested Borrowing.
"Minimum Borrowing Amount" shall mean (i) for AR Loans and Revolving
Loans maintained as Base Rate Loans, $500,000, (ii) for Loans maintained as
Eurodollar Loans, $1,000,000 and (iii) for Swingline Loans, $250,000.
"Modified Additional Cap Ex" shall mean for any fiscal year the sum of
(i) the Additional Cap Ex for such fiscal year plus (ii) the Adjusted Additional
Cap Ex for the preceding fiscal year.
"Modified Adjusted EBITDA" of any Person shall mean, for any period
(i) the Adjusted EBITDA of such Person for such period plus (ii) with respect to
any business or assets acquired during such period pursuant to a Permitted
Acquisition consummated after the Closing Date, but only to the extent of
businesses or assets acquired directly by the Borrower or owned by a Person that
becomes a Subsidiary Guarantor, the Consolidated EBITDA attributable to such
business, assets or Person for the portion of such period prior to the
consummation of such Permitted Acquisition.
"Modified Holdings Leverage Ratio" shall mean, with respect to any
Relevant Measurement Date, the Holdings Leverage Ratio determined as of such
date, modified by the inclusion in the computation thereof of any incremental
Consolidated Debt of Holdings
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incurred after such Relevant Measurement Date and prior to the delivery of an
officer's certificate pursuant to Section 7.01(e)(i) in respect of the next
Relevant Measurement Date.
"Mortgage" shall mean the mortgages, deeds and trust and similar
documents in respect of the Real Property of the Credit Parties as in effect
under the Consolidated Credit Agreement.
"Mortgaged Properties" shall mean the Real Properties subject to the
Mortgages.
"Net Cash Proceeds" shall mean, with respect to any Asset Sale, the
Cash Proceeds resulting therefrom net of expenses of sale or recovery (including
payment of principal, premium and interest of Indebtedness secured by the assets
which are the subject of the Asset Sale and required to be, and which is, repaid
under the terms thereof as a result of such Asset Sale), and incremental taxes
paid or payable as a result thereof.
"New Mortgage" shall have the meaning provided in Section 7.10(b).
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Note" shall mean and include each AR Note, each Revolving Note and
the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Agent at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the Agent may designate to
the Borrower from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
the Agent, the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Operative Date" shall have the meaning provided in Section 5.01.
"Original Credit Agreements" shall have the meaning provided in the
Consolidated Credit Agreement.
"Participant" shall have the meaning provided in Section 2.05(a).
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"Payment Office" shall mean the office of the Agent at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the Agent may designate to
the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall mean any acquisition (including through
a stock acquisition) of property or assets of a nature or type, or which will be
used in a business, permitted to be held or engaged in by Section 8.01 provided
that (x) the Holdings Leverage Ratio as of the last Measurement Date prior to
the consummation of such acquisition was less than 5.50 to 1.0 determined on a
pro forma basis as if the Permitted Acquisition and the related borrowings were
consummated on the first day of the 12-month period ending on such Measurement
Date and giving effect to pro forma adjustments to the Consolidated EBITDA of
the Person being acquired to give effect to contemplated cost savings as
estimated in good faith by the Borrower and agreed to by the Agent, or (y)
aggregate amount expended for all such acquisitions after the Restatement
Effective Date to the extent not effected in compliance with clause (x) above or
clause (z) below does not exceed $50,000,000 or (z) consented to in writing by
the Super-Majority Banks.
"Permitted Asset Sale" shall mean an Asset Sale (x) permitted by the
expressed language of Section 8.02 (and not by the parenthetical in the lead in
paragraph of Section 8) and (y) resulting from a casualty or taking of assets of
the Borrower or any Subsidiary.
"Permitted Encumbrances" shall mean, with respect to the Mortgaged
Property, such exceptions to title as are set forth in the title insurance
policy or title commitment delivered with respect thereto, all of which
exceptions must be reasonably acceptable to the Agent.
"Permitted Holders" means Xxxxx and its Affiliates, the Xxxxx
Designees, the Management Investors, any employee stock ownership plan
established by the Borrower for the benefit of the employees of the Borrower or
any Subsidiary and their Permitted Transferees.
"Permitted Holdings Debt" shall mean debt of Holdings, subordinated to
Holdings' obligations under the Holdings Guaranty, issued by Holdings after the
Consolidation Date provided that (i) all proceeds of such debt shall be
contributed as common capital to the Borrower, (ii) the terms and conditions
(other than the issuer, pricing (including whether cash pay or pay-in-kind) and
maturities, provided that no scheduled payment of principal or any one-time cash
payment of all accreted interest under a pay-in-kind issue, shall be due and
payable prior to the Final Maturity Date) are (in the reasonable opinion of
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the Agent) substantially the same as, or no more adverse to the interests of the
Banks than, those contained in the Permitted Subordinated Debt or are consented
to by the Required Banks, (iii) such debt shall not be guaranteed by the
Borrower or any of its Subsidiaries and (iv) the Permitted Holdings Debt shall
not exceed in the aggregate (x) $50 million less (y) the aggregate principal
amount of Additional Subordinated Debt.
"Permitted Investments" shall mean (a) cash and Cash Equivalents, (b)
Investments in Subsidiary Guarantors, (c) (x) Investments in Specified
Subsidiaries to the extent made in connection with the acquisition thereof as
permitted by clause (B) of the second sentence of Section 8.06 and (y) all other
Investments not permitted by clause (b) and (c)(x) in an amount up to $7,500,000
in the aggregate, including Investments in a Person that becomes a Subsidiary of
the Borrower immediately after such Investment, provided (i) an Event of Default
has not occurred and is continuing and will not occur as a result of, in
connection with or after giving effect to such Investment and (ii) such Person,
at the time of such Investment or at the time such Person becomes a Subsidiary,
engages exclusively in the business permitted to be engaged in by Borrower and
its Subsidiaries pursuant to Section 8.01, (d) loans and advances of money in
the ordinary course of business and consistent with past practice to officers
and employees of Borrower or any of its Subsidiaries, (e) investments in
receivables owing to the Borrower and/or any Subsidiary, if created or acquired
in the ordinary course of business and payable or dischargeable in accordance
with customary trade terms, and (f) investments (including debt obligations)
received in connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of business.
"Permitted Liens" shall mean Liens described in clauses (a), (b) and
(d) of Section 8.03.
"Permitted Subordinated Debt" shall mean the $325 million principal
amount of Senior Subordinated Notes, due 2006, issued by the Borrower on October
11, 1996 and December 11, 1996.
"Permitted Subordinated Debt Documents" shall mean all indentures,
agreements, notes and other instruments governing or evidencing Permitted
Subordinated Debt as in effect on the Operative Date.
"Permitted Transferees" means (i) in the case of Xxxxx, (A) any
Affiliate thereof (other than any corporation or other Person (except for any
corporation or other Person engaged in a business similar, complementary or
related to the nature or type of the business of Holdings and its Subsidiaries)
controlled by, or any investment fund (other than Xxxxx Investment Associates V,
L.P. or any investment fund that is solely comprised of current and former
professionals of Xxxxx) managed by, Xxxxx), (B) any managing director,
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general partner, limited partner, director, officer or employee of Xxxxx or
any Affiliate thereof (collectively, "Xxxxx Associates"), (C) the heirs,
executors, administrators, testamentary trustees, legatees or beneficiaries
of any Xxxxx Associate or Xxxxx Designee and (D) any trust, the beneficiaries
of which, or a corporation or partnership, the stockholders or partners of
which, include only a Xxxxx Associate or Xxxxx Designee, his spouse, parents,
siblings, or direct lineal descendants, and (ii) in the case of any
Management Investors, (A) his executor, administrator, testamentary trustee,
legatee or beneficiaries, (B) his spouse, parents, siblings, members of his
or her immediate family (including adopted children) and/or direct lineal
descendants or (C) a trust, the beneficiaries of which, or a corporation or
partnership, the stockholders or partners of which, include only the
Management Investor, as the case may be, and his spouse, parents, siblings,
members of his or her immediate family (including adopted children) and/or
direct lineal descendants.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multi-employer or single-employer plan as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of) Holdings, the Borrower, a
Subsidiary or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which Holdings, the Borrower, a
Subsidiary, or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"Pledge Agreements" shall mean the Borrower Pledge Agreement, the
Holdings Pledge Agreement and, once executed, the Subsidiary Pledge Agreement.
"Pledged Securities" shall mean all the Pledged Securities as defined
in the relevant Pledge Agreement.
"Prime Lending Rate" shall mean the rate which Bankers Trust Company
announces from time to time as its prime lending rate, the Prime Lending Rate to
change when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Bankers Trust Company may make commercial
loans or other loans at rates of interest at, above or below the Prime Lending
Rate.
"RC Commitment Commission" shall have the meaning provided in Section
3.01(b).
"RC Percentage" shall mean at any time for each Bank with a Revolving
Commitment the percentage obtained by dividing such Bank's Revolving Commitment
by the
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Total Revolving Commitment, PROVIDED that if the Total Revolving Commitment has
been terminated, the RC Percentage of each Bank shall be determined by dividing
such Bank's Revolving Commitment immediately prior to such termination by the
Total Revolving Commitment immediately prior to such termination.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 ET SEQ.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Register" shall have the meaning provided in Section 12.16.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Reinvestment Assets" shall mean any assets to be employed in the
business of the Borrower and its Subsidiaries as permitted by Section 8.01.
"Reinvestment Election" shall have the meaning provided in Section
4.02(A)(c).
"Reinvestment Notice" shall mean a written notice signed by an
Authorized Officer of the Borrower stating that the Borrower, in good faith,
intends and expects to use all or a specified portion of the Net Cash Proceeds
of a Permitted Asset Sale to purchase, construct or otherwise acquire
Reinvestment Assets.
"Reinvestment Prepayment Amount" shall mean, with respect to any
Reinvestment Election, the amount, if any, on the Reinvestment Prepayment Date
relating thereto by which (a) the Anticipated Reinvestment Amount in respect of
such Reinvestment Election exceeds (b) the aggregate amount thereof expended by
the Borrower and its Subsidiaries to acquire Reinvestment Assets.
"Reinvestment Prepayment Date" shall mean, with respect to any
Reinvestment Election, the earliest of (i) the date, if any, upon which the
Agent, on behalf of the Required Banks or the Required Banks (TL), shall have
delivered a written termination notice to the Borrower, provided that such
notice may only be given while an Event of
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Default exists, (ii) the date occurring 180 days after such Reinvestment
Election and (iii) the date on which the Borrower shall have determined not to,
or shall have otherwise ceased to, proceed with the purchase, construction or
other acquisition of Reinvestment Assets with the related Anticipated
Reinvestment Amount.
"Relevant Determination Date" shall mean, at any time, (x) the last
day of the then most recently ended fiscal month, quarter or year of Holdings
with respect to which an officer's certificate has been, or is required to be,
delivered to the Banks pursuant to Section 7.01(e)(i) or (y) if the Margin
Reduction Discount is then greater than zero, the last date subsequent to the
date specified in clause (x) on which any Consolidated Debt of Holdings and its
Subsidiaries has been incurred.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Banks" shall mean Non-Defaulting Banks whose AR Commitments
(or, if after the AR Termination Date, outstanding AR Loans) and Revolving
Commitments (or if terminated, as in effect immediately prior to such
termination) constitute greater than 50% of the sum of (i) the Adjusted Total AR
Commitment (or, if after the AR Termination Date, the total outstanding AR Loans
of Non-Defaulting Banks) and (ii) the Revolving Commitments (or if terminated,
as in effect immediately prior to such termination) of all Non-Defaulting Banks.
"Required Banks (TL)" shall mean the Required Banks as defined in the
Term Loan Agreement.
"Restatement Effective Date" shall mean October 8, 1996.
"Revolving Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I hereto directly below the
column entitled "Revolving Commitment," as the same may be (x) reduced from time
to time pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to
time as a result of assignments to or from such Bank pursuant to Section 12.04.
"Revolving Facility" shall mean the Facility evidenced by the Total
Revolving Commitments.
"Revolving Loan" shall have the meaning provided in Section
1.01(A)(b).
"Revolving Note" has the meaning provided in Section 1.05(a).
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"Scheduled Repayment" shall have the meaning provided in Section
4.02(A)(b).
"SEC" shall have the meaning provided in Section 7.01(h).
"SEC Regulation D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"Secured Creditors" shall mean the Banks hereunder and the Banks party
to the Term Loan Agreement.
"Security Agreement" shall mean the Security Agreement in the form of
Exhibit E-1 hereto, as amended by the Amendment in the form of Exhibit E-2
hereto and as the same may be subsequently amended, modified or supplemented
from time to time.
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Documents" shall mean each Pledge Agreement, the Security
Agreement, each Mortgage and, once executed, each Additional Mortgage, each New
Mortgage and the Subsidiary Security Agreement.
"Senior Leverage Ratio" shall mean, at any Measurement Date, the ratio
of (x) Consolidated Senior Debt of the Borrower on such date to (y) Modified
Adjusted EBITDA of the Borrower for the 12-month period (taken as one accounting
period) ending on such date.
"Shareholders' Agreements" shall mean the agreements entered into by
Holdings or any Subsidiary governing its capital stock and/or by shareholders
relating to any such entity or its capital stock that were made available to the
Agent pursuant to Section 5.06 of the Original Credit Agreements.
"Xxxxx Note" shall have the meaning provided in Section 8.04(g).
"Specified Subsidiaries" shall have the meaning provided in Section
8.06.
"Stated Amount" of each Letter of Credit shall mean the maximum
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Subordinated Debt" shall mean and include the Permitted Subordinated
Debt, the Additional Subordinated Debt and the Permitted Holdings Debt, in each
case once issued.
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"Subordinated Debt Documents" shall mean and include the Permitted
Subordinated Debt Documents and the execution version of all indentures,
agreements, notes and instruments governing, or evidencing, Additional
Subordinated Debt and/or Permitted Holdings Debt.
"Subordinated Debt Indentures" shall mean the indentures governing
Permitted Subordinated Debt, Additional Subordinated Debt and/or Permitted
Holdings Debt.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean each Domestic Subsidiary, if any,
party to the Subsidiary Guaranty on the Operative Date and each Domestic
Subsidiary created thereafter that executes and delivers a counterpart of the
Subsidiary Guaranty, provided that at such time such Subsidiary also executes
and delivers a Subsidiary Pledge Agreement and a Subsidiary Security Agreement,
and takes such actions with respect thereto as the Administrative Agent
reasonably requests to perfect the Liens granted thereunder.
"Subsidiary Guaranty" shall mean a guaranty agreement in form and
substance satisfactory to the Agent guaranteeing the Obligations.
"Subsidiary Pledge Agreement" shall mean a pledge agreement in form
substantially the same as the Borrower Pledge Agreement and otherwise reasonably
satisfactory to the Agent.
"Subsidiary Security Agreement" shall mean a security agreement in
form substantially the same as the Security Agreement and otherwise reasonably
satisfactory to the Agent.
"Super-Majority Banks" shall mean the Non-Defaulting Banks which would
constitute the Required Banks if the reference to "50%" in the definition of
Required Banks were to read "66 2/3%."
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Expiry Date.
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"Swingline Loan" shall have the meaning provided in Section
1.01(B)(a).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement dated as
of November 18, 1993 between the Borrower and Holdings in the form delivered to
the Banks prior to the Restatement Effective Date and as the same may be
modified with the consent of the Required Banks.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall mean the Loans under and as defined in the Term Loan
Agreement.
"Term Loan Agreement" shall mean the Term Loan Agreement, dated as of
May 21, 1997, among the Borrower and the Banks party thereto as in effect on the
Operative Date and as the same may be subsequently amended, modified or
supplemented in accordance with the terms thereof and hereof.
"Term Loan Documents" shall mean all the Credit Documents as defined
in the Term Loan Agreement.
"Tested Borrowing" shall mean any incurrence of AR Loans or Revolving
Loans after the Consolidation Date in which the aggregate amount of AR Loans or
Revolving Loans incurred, when added to the aggregate amount of AR Loans and
Revolving Loans incurred during the immediately preceding 30 day period (to the
extent (x) incurred after the Consolidation Date, (y) still outstanding and (z)
not included in establishing an earlier Tested Borrowing), equal or exceed
$1,000,000.
"TL Percentage" shall mean at any time that percentage obtained by
dividing (i) the outstanding principal amount of Term Loans by (ii) the
outstanding principal amount of AR Loans.
"Total AR Commitment" shall mean the sum of the AR Commitments of each
of the Banks.
"Total Commitment" shall mean the sum of the Total AR Commitment and
the Total Revolving Commitment.
"Total Revolving Commitment" shall mean the sum of the Revolving
Commitments of each of the Banks.
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"Transaction Expenses" shall mean all fees and expenses incurred in
connection with, and payable prior to or substantially concurrently with the
closing of, the Transaction (as defined in the Consolidated Credit Agreement)
and including all fees paid to any of the Banks and the Agent hereunder, fees
paid to Xxxxx or its Affiliates permitted hereunder; attorney's fees,
accountants' fees, placement agents' fees, discounts and commissions and
brokerage, and consultant fees. Transaction Expenses shall include the
amortization of any such fees and expenses that are capitalized and not
classified as an expense on the date incurred.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, I.E., a Base Rate Loan or Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year determined in accordance
with Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets thereof,
determined in accordance with Section 412 of the Code.
"Unpaid Drawings" shall have the meaning provided in Section 2.04(a).
"Unutilized Revolving Commitment" for any Bank at any time shall mean
the excess of (i) the Revolving Commitment of such Bank over (ii) the sum of (x)
the aggregate outstanding principal amount of Revolving Loans made by such Bank
plus (y) an amount equal to such Bank's Adjusted RC Percentage of the Letter of
Credit Outstandings at such time.
"Unutilized Total Revolving Commitment" shall mean, at any time, (i)
the Total Revolving Commitment at such time less (ii) the sum of the aggregate
principal amount of all Revolving Loans and Swingline Loans at such time plus
the Letter of Credit Outstandings at such time.
"Working Capital" shall mean the excess of Consolidated Current Assets
over Consolidated Current Liabilities.
"Written" or "in writing" shall mean any form of written communication
or a communication by means of telex, facsimile transmission, telegraph or
cable.
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SECTION 11. THE AGENT.
1.111 APPOINTMENT. The Banks hereby designate Bankers Trust Company
as Agent (for purposes of this Section 11, the term "Agent" shall include BTCo
in its capacity as Collateral Agent for the Secured Creditors pursuant to the
Security Documents) to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any Note
by the acceptance of such Note shall be deemed irrevocably to authorize, the
Agent to take such action on its behalf under the provisions of this Agreement,
the other Credit Documents and any other instruments and agreements referred to
herein or therein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Agent may perform any of its duties hereunder by or
through its respective officers, directors, agents, employees or affiliates.
The Co-Agent shall have no duties or liabilities in acting in such capacity
hereunder.
1.112 NATURE OF DUTIES. The Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and the
Security Documents. Neither the Agent nor any of its respective officers,
directors, agents, employees or affiliates shall be liable for any action taken
or omitted by it or them hereunder or under any other Credit Document or in
connection herewith or therewith, unless caused by its or their gross negligence
or willful misconduct. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Agreement
or any other Credit Document a fiduciary relationship in respect of any Bank or
the holder of any Note; and nothing in this Agreement or any other Credit
Document, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement or any other
Credit Document except as expressly set forth herein or therein.
1.113 LACK OF RELIANCE ON THE AGENT. Independently and without
reliance upon the Agent, each Bank and the holder of each Note, to the extent it
deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of Holdings, the Borrower
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and (ii)
its own appraisal of the creditworthiness of Holdings, the Borrower and its
Subsidiaries and, except as expressly provided in this Agreement, the Agent
shall not have any duty or responsibility, either initially or on a continuing
basis, to provide any Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. The Agent shall not be
responsible to any Bank or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuine-
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ness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of the Borrower and its Subsidiaries or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of Holdings, the Borrower and its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
1.114 CERTAIN RIGHTS OF THE AGENT. If the Agent shall request
instructions from the Required Banks (or, where applicable, the Super-Majority
Banks) with respect to any act or action (including failure to act) in
connection with this Agreement or any other Credit Document, the Agent shall be
entitled to refrain from such act or taking such action unless and until the
Agent shall have received instructions from the Required Banks (or, where
applicable, the Super-Majority Banks); and the Agent shall not incur liability
to any Person by reason of so refraining. Without limiting the foregoing,
neither any Bank nor the holder of any Note shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder or under any other Credit Document in accordance with the
instructions of the Required Banks (or, where applicable, the Super-Majority
Banks).
1.115 RELIANCE. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Agent believed to be the proper Person, and, with respect to
all legal matters pertaining to this Agreement and any other Credit Document and
its duties hereunder and thereunder, upon advice of counsel selected by the
Agent.
1.116 INDEMNIFICATION. To the extent the Agent is not reimbursed and
indemnified by the Borrower, the Banks will reimburse and indemnify the Agent,
in proportion to their respective Loans and Commitments as used in determining
the Required Banks, for and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Agent in performing its respective duties hereunder
or under any other Credit Document, in any way relating to or arising out of
this Agreement or any other Credit Document; provided that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct.
1.117 THE AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its
obligation to make Loans under this Agreement, the Agent shall have the rights
and powers specified herein for a "Bank" and may exercise the same rights and
powers as though it were not
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performing the duties specified herein; and the term "Banks," "Required Banks,"
"Letter of Credit Issuer", "Super-Majority Banks," "holders of Notes" or any
similar terms shall, unless the context clearly otherwise indicates, include the
Agent in its individual capacity. The Agent may accept deposits from, lend
money to, and generally engage in any kind of banking, trust or other business
with the Borrower or any Affiliate of the Borrower as if it were not performing
the duties specified herein, and may accept fees and other consideration from
the Borrower for services in connection with this Agreement and otherwise
without having to account for the same to the Banks.
1.118 HOLDERS. The Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a written notice of
the assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Agent. 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, assignee or indorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.
1.119 RESIGNATION BY THE AGENT. (a) The Agent may resign from the
performance of all its functions and duties hereunder and/or under the other
Credit Documents at any time by giving 15 Business Days' prior written notice to
the Borrower and the Banks. Such resignation shall take effect upon the
appointment of a successor Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall appoint a
successor Agent hereunder or thereunder who shall be the Co-Agent or such other
commercial bank or trust company as is reasonably acceptable to the Borrower.
(c) If a successor Agent shall not have been so appointed within such
15 Business Day period, the Agent, with the consent of the Borrower, shall then
appoint a successor Agent who shall serve as Agent hereunder or thereunder until
such time, if any, as the Banks appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to clause (b)
or (c) above by the 20th Business Day after the date such notice of resignation
was given by the Agent, the Agent's resignation shall become effective and the
Required Banks shall thereafter perform all the duties of the Agent hereunder
and/or under any other Credit Document until such time, if any, as the Banks
appoint a successor Agent as provided above.
SECTION 12. MISCELLANEOUS.
1.121 PAYMENT OF EXPENSES, ETC. The Borrower agrees to: (i) whether
or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket
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costs and expenses of the Agent and the Co-Agent in connection with the
negotiation, preparation, execution and delivery of the Credit Documents and the
documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and
disbursements of their respective counsel) and of the Agent, the Co-Agent and
each of the Banks in connection with the enforcement of the Credit Documents and
the documents and instruments referred to therein (including, without
limitation, the reasonable fees and disbursements of counsel for the Agent, the
Co-Agent and for each of the Banks); (ii) pay and hold each of the Banks
harmless from and against any and all present and future stamp and other similar
taxes with respect to the foregoing matters and save each of the Banks harmless
from and against any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to such Bank) to pay
such taxes; and (iii) indemnify each Bank (including in its capacity as the
Agent or Co-Agent), its officers, directors, employees, representatives and
agents from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result of,
or arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not any Bank is a
party thereto) related to the entering into and/or performance of any
Transaction Document or the use of the proceeds of any Loans hereunder or the
Transaction or the consummation of any transactions contemplated in any Credit
Document, or (b) the actual or alleged presence of Hazardous Materials in the
air, surface water or groundwater or on the surface or subsurface of any Real
Property owned or at any time operated by the Borrower or any of its
Subsidiaries, the release, generation, storage, transportation, handling or
disposal of Hazardous Materials at any location, whether or not owned or
operated by the Borrower or any of its Subsidiaries, the non-compliance of any
Real Property with foreign, federal, state and local laws, regulations, and
ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim asserted against the Borrower, any of its
Subsidiaries or any Real Property owned or at any time operated by the Borrower
or any of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
1.122 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, if an Event of Default then exists, each Bank is hereby authorized
at any time or from time to time, without presentment, demand, protest or other
notice of any kind to the Borrower or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by such Bank (including without limitation by branches and agencies of
such Bank wherever located) to or for the credit or the account of the Borrower
against and on account of the Obligations and liabilities of the Borrower to
such Bank under
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this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Bank pursuant to
Section 12.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Bank shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
1.123 NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to the Borrower, at
the address specified opposite its signature below; if to any Bank, at its
address specified for such Bank on Annex II hereto; or, at such other address as
shall be designated by any party in a written notice to the other parties
hereto. All such notices and communications shall be mailed, telegraphed,
telexed, telecopied, or cabled or sent by overnight courier, and shall be
effective when received.
1.124 BENEFIT OF AGREEMENT. (a) This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto, provided that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Banks. Each Bank may at any time grant participations in any of
its rights hereunder or under any of the Notes to another financial institution,
provided that in the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation, except that
the participant shall be entitled to the benefits of Sections 1.10 and 4.04 of
this Agreement to the extent that such Bank would be entitled to such benefits
if the participation had not been entered into or sold, and, provided further
that no Bank shall transfer, grant or assign any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating (it being understood that any waiver of
the application of any prepayment or the method of any application of any
prepayment to, the amortization of the Loans shall not constitute an extension
of the final maturity date), or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating interest
in any Commitment over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default or of a mandatory reduction in
the Total Commitment, or a mandatory prepayment, shall not constitute a change
in the terms of any Commitment), (ii) release all or substantially all of the
Collateral or (iii) consent to the assignment or
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transfer by the Borrower of any of its rights and obligations under this
Agreement or any other Credit Document.
(b) Notwithstanding the foregoing, (x) any Bank may assign all or a
portion of its outstanding Loans, AR Commitment and/or Revolving Commitment and
its rights and obligations hereunder to another Bank, and (y) with the consent
of the Agent and the Borrower (which consents shall not be unreasonably
withheld), any Bank may assign all or a portion of its outstanding Loans, AR
Commitment and/or Revolving Commitment and its rights and obligations hereunder
to one or more commercial banks or other financial institutions (including one
or more Banks), provided that all assignments hereunder must be PRo RATA between
the Revolving Commitments and Revolving Loans, on one hand and the AR
Commitments and AR Loans on the other hand. No assignment pursuant to the
immediately preceding sentence shall to the extent such assignment represents an
assignment to an institution other than one or more Banks hereunder, be in an
aggregate amount less than $5,000,000 unless the entire Loans and Commitment of
the assigning Bank are so assigned. If any Bank so sells or assigns all or a
part of its rights hereunder or under the Notes, any reference in this Agreement
or the Notes to such assigning Bank shall thereafter refer to such Bank and to
the respective assignee to the extent of their respective interests and the
respective assignee shall have, to the extent of such assignment (unless
otherwise provided therein), the same rights and benefits as it would if it were
such assigning Bank. Each assignment pursuant to this Section 12.04(b) shall be
effected by the assigning Bank and the assignee Bank executing an Assignment
Agreement substantially in the form of Exhibit H (appropriately completed). In
the event of any such assignment (x) to a commercial bank or other financial
institution not previously a Bank hereunder, either the assigning or the
assignee Bank shall pay to the Agent a nonrefundable assignment fee of $3,500
and (y) to a Bank, either the assigning or assignee Bank shall pay to Agent a
nonrefundable assignment fee of $2,000, and at the time of any assignment
pursuant to this Section 12.04(b), (i) Annex I shall be deemed to be amended to
reflect the Commitment of the respective assignee (which shall result in a
direct reduction to the Commitment of the assigning Bank) and of the other
Banks, and (ii) the Borrower will issue new Notes to the respective assignee and
to the assigning Bank in conformity with the requirements of Section 1.05. Each
Bank and the Borrower agree to execute such documents (including without
limitation amendments to this Agreement and the other Credit Documents) as shall
be necessary to effect the foregoing. Nothing in this clause (b) shall prevent
or prohibit any Bank from pledging its Notes or Loans to a Federal Reserve Bank
in support of borrowings made by such Bank from such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section 12.04, no
transfer or assignment of the interests or obligations of any Bank hereunder or
any grant of participation therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration statement
with the SEC or to qualify the Loans under the "Blue Sky" laws of any State.
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(d) Each Bank initially party to this Agreement hereby represents,
and each Person that becomes a Bank pursuant to an assignment permitted by this
Section 12 will, upon its becoming party to this Agreement, represent that it is
a commercial lender, other financial institution or other "accredited" investor
(as defined in SEC Regulation D) which makes loans in the ordinary course of its
business and that it will make or acquire Loans for its own account in the
ordinary course of such business, provided that subject to the preceding clauses
(a) and (b), the disposition of any promissory notes or other evidences of or
interests in Indebtedness held by such Bank shall at all times be within its
exclusive control.
1.125 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Borrower and the Agent or any Bank shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which the Agent or any Bank would
otherwise have. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Agent or the
Banks to any other or further action in any circumstances without notice or
demand.
1.126 PAYMENTS PRO RATA. (a) The Agent agrees that promptly after
its receipt of each payment from or on behalf of the Borrower in respect of any
Obligations hereunder, it shall distribute such payment to the Banks (other than
any Bank that has expressly waived its right to receive its PRO RATA share
thereof) PRO RATA based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such Obligation
then owed and due to all of the Banks immediately prior to such receipt, then
such Bank receiving such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the Obligations to such Banks in
such amount as shall result in a proportional participation by all of the Banks
in such amount, provided that if all or any portion of such excess amount is
-87-
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 12.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
1.127 CALCULATIONS; COMPUTATIONS. (a) The financial statements to
be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Banks), provided that (x) except as otherwise
specifically provided herein, all computations determining compliance with
Sections 8 and 9, including definitions used therein, shall utilize accounting
principles and policies in effect at the time of the preparation of, and in
conformity with those used to prepare, the December 31, 1995 historical
financial statements of the Borrower delivered to the Banks pursuant to Section
6.10(b) and (y) that if at any time the computations determining compliance with
Sections 8 and 9 utilize accounting principles different from those utilized in
the financial statements furnished to the Banks, such financial statements shall
be accompanied by reconciliation work-sheets.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
1.128 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) This Agreement and the other Credit Documents and the rights
and obligations of the parties hereunder and thereunder shall be construed in
accordance with and be governed by the law of the state of New York. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, the Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Borrower further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower located outside New York City and by hand delivery to the Borrower
located within New York City, at its address for notices pursuant to Section
12.03, such service to become effective 30 days after such mailing. The
Borrower hereby irrevocably designates appoints and empowers CT Corporation
System, with offices on the date hereof located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as its agent for service of process in respect of any such action or
proceeding. Nothing herein shall affect the right of the Agent or any Bank to
serve process
-88-
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
(c) Each of the parties to this agreement hereby irrevocably waives
all right to a trial by jury in any action, proceeding or counterclaim arising
out of or relating to this Agreement, the other Credit Documents or the
transactions contemplated hereby or thereby.
1.129 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Agent.
12.10 EXECUTION. This Agreement shall be deemed executed by all
parties when the Borrower and each of the Banks shall have signed a copy hereof
(whether the same or different copies) and shall have delivered the same to the
Agent at the Payment Office of the Agent or, in the case of the Banks, shall
have given to the Agent telephonic (confirmed in writing), written telex or
facsimile transmission notice (actually received) at such office that the same
has been signed and mailed to it.
12.11 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 AMENDMENT OR WAIVER. Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Required Banks, provided that no such
change, waiver, discharge or termination shall, without the consent of each Bank
(other than a Defaulting Bank) affected thereby, (i) extend the AR Maturity
Date, the AR Termination Date or the Expiry Date, as the case may be (it being
understood that any waiver of the application of any prepayment of or the method
of application of any prepayment to the amortization of, the Loans shall not
constitute any such extension), or reduce the rate or extend the time of payment
of interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) or Fees thereon, or reduce the
principal amount thereof, or increase the Commitment of any Bank
-89-
over the amount thereof then in effect (it being understood that a waiver of any
Default or Event of Default, or of a mandatory reduction in the Total
Commitment, shall not constitute a change in the terms of any Commitment of any
Bank), (ii) release or permit the release of all or substantially all of the
Collateral except as expressly provided in the Credit Documents, (iii) amend,
modify or waive any provision of this Section 12.12, (iv) reduce the percentage
specified in, or otherwise modify, the definition of Required Banks or (v)
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement provided further that no such change, waiver,
discharge or termination shall without the consent of the Super-Majority Banks
change directly or indirectly the definition of Permitted Acquisition or
Super-Majority Banks, extend the date of payment of, or reduce the amount of,
any Scheduled Repayment, or release Holdings from the Holdings Guaranty and/or
release the Borrower's stock pledged under the Holdings Pledge Agreement. No
provision of Section 11 may be amended without the consent of the Agent and to
the extent any such amendment would affect the Co-Agent solely in its capacity
as such, the Co-Agent, no provision of Section 2 may be amended without the
consent of the Letter of Credit Issuer affected thereby and no provision of
Section 1.01(B)(a) or (b) or any other provision applicable to Swingline Loans
may be amended without the consent of BTCo.
12.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 2.06, 4.04, 11.06 or 12.01 shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 DOMICILE OF LOANS. Each Bank may transfer and carry its Loans
at, to or for the account of any branch office, subsidiary or affiliate of such
Bank, provided that the Borrower shall not be responsible for costs arising
under Section 1.10, 2.06 or 4.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.12) to the extent not otherwise applicable to
such Bank prior to such transfer.
12.15 CONFIDENTIALITY. Subject to Section 12.04, the Banks shall
hold all non-public information obtained pursuant to the requirements of this
Agreement which has been identified as such by the Borrower in accordance with
its customary procedure for handling confidential information of this nature and
in accordance with safe and sound banking practices and in any event may make
disclosure reasonably required by any bona fide transferee or participant in
connection with the contemplated transfer of any Loans or participation therein
(so long as such transferee or participant agrees to abide by the provisions of
this Section 12.15) or as required or requested by any governmental agency or
representative thereof or pursuant to legal process, provided that, unless
specifically prohibited by applicable law or court order, each Bank shall notify
the Borrower of any request by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Bank by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information, and
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provided further that in no event shall any Bank be obligated or required to
return any materials furnished by the Borrower or any Subsidiary.
12.16 LENDER REGISTER. The Borrower hereby designates the Agent to
serve as its agent, solely for purposes of this Section 12.16, to maintain a
register (the "Register") on which it will record the Commitment, if any, from
time to time of each of the Banks, the Loans made by each of the Banks and each
repayment in respect of the principal amount of the Loans of each Bank. Failure
to make any such recordation, or any error in such recordation, shall not affect
the Borrower's obligations in respect of such Loans. With respect to any Bank,
the transfer of the rights to the principal of, and interest on, any Loans shall
not be effective until such transfer is recorded on the Register maintained by
the Agent with respect to ownership of such Loans and prior to such recordation
all amounts owing to the transferor with respect to such Loans shall remain
owing to the transferor. The registration of assignment or transfer of all or
part of any Loans shall be recorded by the Agent on the Register only upon the
acceptance by the Agent of a properly executed and delivered Assignment
Agreement pursuant to Section 12.04(b). The Borrower agrees to indemnify the
Agent from and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by the
Agent in performing its duties under this Section 12.16 other than those
resulting from the Agent's willful misconduct or gross negligence.
-91-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
ADDRESS:
000 X. Xxxxx Xxxxxx UNIVERSAL OUTDOOR, INC.,
Suite 1010 as Borrower
Chicago, Illinois
Attention: Xxxxx X. Xxxxxxx
Tel. No.: (000) 000-0000 By
Fax No.: (000) 000-0000 ---------------------------
Name:
Title:
BANKERS TRUST COMPANY,
Individually and as Agent
By
--------------------------
Name:
Title:
LA SALLE NATIONAL BANK,
Individually and as Co-Agent
By
--------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS
By
--------------------------
Name:
Title:
BANKBOSTON, N.A.
By
--------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By
--------------------------
Name:
Title:
THE BANK OF NEW YORK
By
--------------------------
Name:
Title:
BANQUE PARIBAS
By
--------------------------
Name:
Title:
CREDIT LYONNAIS, Chicago Branch
By
--------------------------
Name:
Title:
THE FIRST NATIONAL BANK
OF CHICAGO
By
--------------------------
Name:
Title:
FLEET BANK, N.A.
By
--------------------------
Name:
Title:
XXXXXX FINANCIAL, INC.
By
--------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY
By
--------------------------
Name:
Title:
SUN TRUST BANK
By
--------------------------
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME FUND
By
--------------------------
Name:
Title:
ANNEX I
COMMITMENTS
AR Revolving
Bank Commitment Commitment
---- ---------- ----------
Bankers Trust $24,083,333 $1,416,667
Company
La Salle National 24,083,333 1,416,667
Bank
Bank of America 23,611,111 1,388,889
Illinois
BankBoston 23,611,111 1,388,889
(formerly known as
First National Bank
of Boston)
Union Bank of 23,611,111 1,388,889
California, N.A.
The Bank of New 10,388,889 611,111
York
Banque Paribas 10,388,889 611,111
Credit Lyonnais 10,388,889 611,111
The First National 10,388,889 611,111
Bank of Chicago
Fleet Bank, N.A. 10,388,889 611,111
Xxxxxx Financial, Inc. 10,388,889 611,111
ANNEX I
Page 2
AR Revolving
Bank Commitment Commitment
---- ---------- ----------
State Street Bank and 10,388,889 611,111
Trust Company
Sun Trust Bank 10,388,889 611,111
Xxx Xxxxxx American 10,388,889 611,111
Capital Prime Rate
------------ -----------
Total: $212,500,000 $12,500,000
------------ -----------
------------ -----------
ANNEX II
BANK ADDRESSES
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx XxXxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
La Salle National Bank 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Bank of America Illinois 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
BankBoston Mail Stop 01-08-08
(formerly known as First 000 Xxxxxxx Xxxxxx
National Bank of Boston) Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Union Bank 000 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
ANNEX II
Page 2
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
The Bank of New York Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Banque Paribas 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Vuarchex
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Credit Lyonnais 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
The First National Bank of Chicago Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Fleet Bank, N.A. 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Xxxxxx Financial, Inc. 000 Xxxx Xxxxxx Xxxxxx
ANNEX II
Page 3
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
State Street Bank and Trust Company 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Tel. No.: (000) 000-0000
Sun Trust Bank Mail Code XX-Xxxxxxx-0000
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Xxx Xxxxxx American Capital One Parkview Plaza
Prime Rate Income Trust Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
ANNEX III
GOVERNMENT APPROVALS
ANNEX IV
SUBSIDIARIES
ANNEX V
PROPERTIES
ANNEX VI
EXISTING INDEBTEDNESS
ANNEX VII
INSURANCE POLICIES
ANNEX VIII
EXISTING LIENS
ANNEX IX
MANAGEMENT FEES
None
