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TERM LOAN 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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$75,000,000
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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.................................... 1
1.03 Notice of Borrowing, etc.......................................... 1
1.04 Disbursement of Funds............................................. 2
1.05 Notes............................................................. 2
1.06 Conversions....................................................... 3
1.07 Pro Rata Borrowings............................................... 3
1.08 Interest.......................................................... 4
1.09 Interest Periods.................................................. 4
1.10 Increased Costs, Illegality, etc.................................. 5
1.11 Compensation...................................................... 7
1.12 Change of Lending Office.......................................... 8
1.13 Replacement of Banks.............................................. 8
SECTION 2. Fees; Commitments................................................ 9
2.01 Fees.............................................................. 9
2.02 Mandatory Termination of Commitments, etc......................... 9
SECTION 3. Payments......................................................... 9
3.01 Voluntary Prepayments............................................. 9
3.02 Mandatory Prepayments............................................. 10
3.03 Method and Place of Payment....................................... 11
3.04 Net Payments...................................................... 12
SECTION 4. Conditions Precedent............................................. 13
4.01 Conditions Precedent to Loans..................................... 13
SECTION 5. Representations, Warranties and Agreements....................... 17
5.01 Corporate Status.................................................. 17
5.02 Corporate Power and Authority..................................... 17
(i)
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5.03 No Violation...................................................... 17
5.04 Litigation........................................................ 18
5.05 Use of Proceeds; Margin Regulations............................... 18
5.06 Governmental Approvals............................................ 18
5.07 Investment Company Act............................................ 18
5.08 Public Utility Holding Company Act................................ 18
5.09 True and Complete Disclosure...................................... 18
5.10 Financial Condition; Financial Statements......................... 19
5.11 Security Interests................................................ 20
5.12 Tax Returns and Payments.......................................... 20
5.13 Compliance with ERISA............................................. 20
5.14 Subsidiaries...................................................... 21
5.15 Patents, etc...................................................... 21
5.16 Pollution and Other Regulations................................... 22
5.17 Properties........................................................ 23
5.18 Labor Relations................................................... 23
5.19 Existing Indebtedness............................................. 23
SECTION 6. Affirmative Covenants............................................ 23
6.01 Information Covenants............................................. 23
6.02 Books, Records and Inspections.................................... 26
6.03 Insurance......................................................... 26
6.04 Payment of Taxes.................................................. 27
6.05 Consolidated Corporate Franchises................................. 27
6.06 Compliance with Statutes, etc..................................... 27
6.07 ERISA............................................................. 27
6.08 Good Repair....................................................... 28
6.09 End of Fiscal Years; Fiscal Quarters.............................. 28
6.10 Additional Security; Further Assurances........................... 28
6.11 Corporate Separateness............................................ 30
6.12 Compliance with Environmental s................................... 30
SECTION 7. Negative Covenants............................................... 31
7.01 Changes in Business............................................... 31
7.02 Consolidation, Merger, Sale or Purchase of Assets, etc............ 31
7.03 Liens............................................................. 33
7.04 Indebtedness...................................................... 35
7.05 Capital Expenditures.............................................. 36
7.06 Investments and Loans............................................. 36
7.07 Subsidiaries; etc................................................. 37
(ii)
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7.08 Prepayments of Indebtedness, etc.................................. 37
7.09 Dividends, etc.................................................... 38
7.10 Transactions with Affiliates...................................... 39
7.11 Fixed Charge Coverage Ratio....................................... 39
7.12 Minimum Modified Adjusted EBITDA.................................. 40
7.13 Senior Leverage Ratio............................................. 40
SECTION 8. Events of Default................................................ 40
8.01 Payments.......................................................... 40
8.02 Representations, etc.............................................. 41
8.03 Covenants......................................................... 41
8.04 Default Under Other Agreements.................................... 41
8.05 Bankruptcy, etc................................................... 41
8.06 ERISA............................................................. 42
8.07 Credit Documents.................................................. 42
8.08 Holdings.......................................................... 42
8.09 Judgments......................................................... 44
SECTION 9. Definitions...................................................... 44
SECTION 10. The Agent....................................................... 68
10.01 Appointment...................................................... 68
10.02 Nature of Duties................................................. 68
10.03 Lack of Reliance on the Agent.................................... 68
10.04 Certain Rights of the Agent...................................... 69
10.05 Reliance......................................................... 69
10.06 Indemnification.................................................. 69
10.07 The Agent in Its Individual Capacity............................. 69
10.08 Holders.......................................................... 70
10.09 Resignation by the Agent......................................... 70
SECTION 11. Miscellaneous................................................... 71
11.01 Payment of Expenses, etc......................................... 71
11.02 Right of Setoff.................................................. 71
11.03 Notices.......................................................... 72
11.04 Benefit of Agreement............................................. 72
11.05 No Waiver; Remedies Cumulative................................... 74
11.06 Payments Pro Rata................................................ 74
11.07 Calculations; Computations....................................... 75
(iii)
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11.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of
Jury Trial..................................................... 75
11.09 Counterparts..................................................... 76
11.10 Execution........................................................ 76
11.11 Headings Descriptive............................................. 76
11.12 Amendment or Waiver.............................................. 76
11.13 Survival......................................................... 77
11.14 Domicile of Loans................................................ 77
11.15 Confidentiality.................................................. 77
11.16 Lender Register.................................................. 77
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 -- Form of Notice of Borrowing
EXHIBIT B -- Form of Note
EXHIBIT C-1 -- Form of Winston & ▇▇▇▇▇▇ Opinion
EXHIBIT C-2 -- Form of White & Case Opinion
EXHIBIT D -- Form of Officers Certificate
EXHIBIT E -- Form of Holdings TL Guaranty
EXHIBIT F -- Form of Amendment To Borrower Pledge Agreement
EXHIBIT G -- Form of Amendment to Security Agreement
EXHIBIT H -- Form of Amendment to Holdings Pledge Agreement
EXHIBIT I -- Solvency Letter
EXHIBIT J -- Adjusted EBITDA
EXHIBIT K -- Assignment Agreement
(iv)
TERM LOAN AGREEMENT dated as of May 21, 1997, 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 9 are used herein as so defined.
W I T N E S S E T H :
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WHEREAS, subject to and upon the terms and conditions set forth
herein, the Banks are willing to make available to the Borrower the credit
facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
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 a loan (each a "Loan" and,
collectively, the "Loans") to the Borrower, which Loans shall (i) be made
pursuant to a single drawing on the Closing Date, (ii) be made and initially
maintained as a single Borrowing of Base Rate Loans (subject to the option to
convert Loans pursuant to Section 1.06) and (iii) not exceed in principal amount
for any Bank at the time of the incurrence thereof the Commitment of such Bank.
Once repaid, Loans may not be reborrowed.
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 five Borrowings of Eurodollar Loans hereunder.
1.013 NOTICE OF BORROWING, ETC. (a) The Borrower shall give the
Agent at its Notice Office, prior to 11:00 A.M. (New York time), at least two
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) of its request to incur Loans hereunder. Such notice (a "Notice of
Borrowing") shall be in the form of Exhibit A and shall be irrevocable and shall
specify (i) the aggregate principal amount of the Loans to be incurred and (ii)
the date of incurrence (which shall be a Business Day). The Agent shall
promptly give each Bank written notice (or telephonic notice promptly confirmed
in writing)
of the proposed incurrence of such Bank's proportionate share thereof and of
the other matters covered by the Notice of Borrowing.
(b) 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 Closing Date, each Bank will make available its PRO RATA share of
the Loans requested to be made on such date in the manner provided below. 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
Closing Date that such Bank does not intend to make available to the Agent its
portion of the Loans to be made on such date, the Agent may assume that such
Bank has made such amount available to the Agent on such date, 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. 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 by a
promissory note substantially in the form of Exhibit B with blanks appropriately
completed in conformity herewith (each a "Note" and, collectively, the "Notes").
The Note issued to each Bank shall
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(i) be executed by the Borrower, (ii) be payable to the order of such Bank and
be dated the Closing Date, (iii) be in a stated principal amount equal to the
Loan made by such Bank (or in the case of a Note issued pursuant to Section
11.04, the Loans purchased by such Bank) and be payable in the principal amount
of the Loans evidenced thereby, (iv) mature on the 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 3.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(b) 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 its Note, 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 into a
Borrowing or Borrowings of another Type of Loan, 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 8.01 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 Loans shall be made by the Banks PRO
RATA on the basis of their respective Commitments. 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 11.07(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
into, 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
Loansw 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 the Maturity Date;
(v) no Interest Period 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 Loans maintained as Eurodollar Loans with Interest
Periods ending after such date would exceed the aggregate principal amount
of 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 8.01 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 Closing 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 Closing 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
Closing 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 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 calculating, interest or otherwise
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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).
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 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 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 or 3.04 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 or 3.04 for any amounts incurred or accruing
prior to the giving of such notice to the Borrower.
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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) or 3.04 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 or 3.04.
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) or Section 3.04
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,
and/or (y) 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 11.12, 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
(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 Agreements pursuant
to Section 11.04(b) (and with all fees payable pursuant to said Section 11.04(b)
to be paid by the Replacement Bank) pursuant to which the Replacement Bank shall
acquire all of the 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 2.01 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
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.
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SECTION 2. FEES; COMMITMENTS.
1.021 FEES. (a) The Borrower agrees to pay to the Agent on the
Closing Date a facility fee for the account of each Bank equal to 1/4 of 1% of
such Bank's Commitment as in effect immediately prior to the making of the Loans
on such date.
(b) 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.
1.022 MANDATORY TERMINATION OF COMMITMENTS, ETC. (a) The Total
Commitment shall terminate in its entirety on May 22, 1997 if the Loans have not
yet been made.
(b) The Total Commitment shall terminate on the Closing Date after
giving effect to the making of the Loans.
SECTION 3. PAYMENTS.
1.031 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, 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 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 $1,000,000 and, if greater, in an integral multiple
of $500,000, provided that no partial prepayment of Eurodollar Loans made
pursuant to a Borrowing shall reduce the 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 3.01 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; and (v) each prepayment pursuant to this Section 3.01 shall
reduce the remaining Scheduled Repayments on a PRO RATA basis (based upon the
then remaining principal amount of each such Scheduled Repayment); and (vi) any
prepayment made after the AR Termination Date shall be accompanied by a
prepayment of AR Loans in a principal amount equal to the AR Percentage times
the principal amount of the Loans being prepaid.
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1.032 MANDATORY PREPAYMENTS.
(A) REQUIREMENTS:
(a) On the last day of each calendar quarter, commencing September
30, 1997, the Borrower shall be required to repay $3,000,000 of the principal
amount of Loans (each such repayment, a "Scheduled Repayment").
(b) 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 TL Percentage of the Net Cash Proceeds
from such Asset Sale shall be applied as a mandatory repayment of the principal
of the then outstanding 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 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.
(c) On the date of the receipt thereof by Holdings or the Borrower,
as the case may be, an amount equal to 75% of the TL 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 Restatement Effective 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 Loans provided that the first $5,000,000 of
such proceeds in the aggregate do not have to be so applied to repay Loans or AR
Loans.
(d) 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 TL 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 Loans.
(e) On the Reinvestment Prepayment Date with respect to a
Reinvestment Election, an amount equal to the TL Percentage of the Reinvestment
Prepayment Amount,
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if any, for such Reinvestment Election shall be applied as a repayment of the
principal of the then outstanding Loans.
(f) 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 of Loans pursuant to Section 3.02(A)
(other than pursuant to clause (a) 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
3.02, the Borrower may designate the Types of Loans which are to be prepaid and
the specific Borrowing(s) pursuant to which made, provided that (i) Eurodollar
Loans may so be designated for prepayment pursuant to this Section 3.02 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 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;
and (iii) each prepayment of any Loans made pursuant to a Borrowing shall be
applied PRO RATA among such Loans. 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.
1.033 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.
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1.034 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
3.04(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 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 Closing 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 11.04 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
-▇▇-
▇.▇. ▇▇▇▇▇▇▇ 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 Restatement Effective 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 3.04(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 3.04(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 Borrower by a Bank pursuant to the first sentence of this
Section 3.04(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 3.04(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
Closing 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 4. CONDITIONS PRECEDENT.
1.041 CONDITIONS PRECEDENT TO LOANS. The obligation of each Bank to
make its Loan on the Closing Date is subject, at the time thereof, to the
satisfaction of the following conditions:
(a)EFFECTIVENESS; NOTES. On or prior to the Closing Date,
(i) this Agreement shall have been executed as provided in Section 11.10
and (ii) there shall have been delivered to the Agent for the account of
each Bank a Note executed by the Borrower in the amount, maturity and as
otherwise provided herein.
(b) OFFICER'S CERTIFICATE. On the Closing Date, the Agent shall
have received a certificate dated such date signed by the President or any
Vice President
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of the Borrower stating that all of the applicable conditions set forth in
Sections 4.01(l) and (m) exist as of such date.
(c) OPINIONS OF COUNSEL. On the Closing Date, the Agent shall
have received opinions, addressed to the Agent, and each of the Banks and
dated the Closing Date, from (i) Winston & ▇▇▇▇▇▇, counsel to the Borrower,
which opinion shall cover the matters contained in Exhibit C-1 hereto, (ii)
White & Case, special counsel to the Agent, which opinion shall cover the
matters contained in Exhibit C-2 hereto and (iii) such local counsel, if
any, satisfactory to the Agent as the Agent may request, which opinions
shall cover the perfection of the security interests granted pursuant to
the Security Documents and such other matters incident to the transactions
contemplated herein as the Agent may reasonably request and shall be in
form and substance satisfactory to the Agent.
(d) CORPORATE PROCEEDINGS. (I) On the Closing Date, the Agent
shall have received from the Borrower a certificate, dated the Closing
Date, signed by the President or any Vice-President of the Borrower in the
form of Exhibit D with appropriate insertions and deletions, together with
copies of the certificate of formation, the by-laws, or other
organizational documents of the Borrower and Holdings and the resolutions,
or such other administrative approval, of the Borrower and Holdings
referred to in such certificate and all of the foregoing (including each
such certificate of formation, certificate of incorporation and by-laws)
shall be satisfactory to the Agent.
(II) On the Closing Date, all corporate and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Credit Documents shall be
satisfactory in form and substance to the Agent, and the Agent shall have
received all information and copies of all certificates, documents and
papers, including good standing certificates and any other records of
corporate proceedings and governmental approvals, if any, which the Agent
may have requested in connection therewith, such documents and papers,
where appropriate, to be certified by proper corporate or governmental
authorities.
(e) ADVERSE CHANGE, ETC. From December 31, 1996 to the Closing
Date, nothing shall have occurred (and neither the Banks nor the Agent
shall have become aware of any facts or conditions not previously known)
which the Agent or the Required Banks shall determine (a) has, or is
reasonably likely to have, a material adverse effect on the rights or
remedies of the Banks or the Agent, or on the ability of the Borrower to
perform its obligations to them, or (b) has, or is reasonably likely to
have, a Material Adverse Effect.
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(f) LITIGATION. On the Closing Date, there shall be no actions,
suits or proceedings pending or threatened (a) with respect to this
Agreement or any other Credit Document or the transactions contemplated
hereby or thereby or (b) which the Agent or the Required Banks shall
determine has, or is reasonably likely to have (i) a Material Adverse
Effect or (ii) a material adverse effect on the rights or remedies of the
Banks hereunder or under any other Credit Document or on the ability of the
Borrower to perform its obligations to the Banks hereunder or under any
other Credit Document.
(g) HOLDINGS TL GUARANTY. On the Closing Date, Holdings shall
have duly authorized, executed and delivered a guaranty substantially in
the form of Exhibit E (as modified, amended or supplemented from time to
time, the "Holdings TL Guaranty"), which guaranty shall be in full force
and effect.
(h) SECURITY DOCUMENTS. (I) On the Closing Date, the Borrower
shall have duly authorized, executed and delivered an Amendment to Pledge
Agreement in the form of Exhibit F (the Existing Borrower Pledge Agreement
as so amended and as subsequently modified, amended or supplemented from
time to time in accordance with the terms thereof and hereof, the "Borrower
Pledge Agreement"), and the Collateral Agent, as pledgee thereunder, shall
hold all of the certificates representing the Pledged Securities referred
to therein, accompanied by executed and undated stock powers, and the
Borrower's Pledge Agreement shall be in full force and effect.
(II) On the Closing Date, the Borrower shall have duly
authorized, executed and delivered an Amendment to Security Agreement
substantially in the form of Exhibit G (the Existing Security Agreement as
so amended and as subsequently modified, supplemented or amended from time
to time in accordance with the terms thereof and hereof, the "Security
Agreement") covering all of the Borrower's present and future Security
Agreement Collateral.
(III) On the Closing Date, Holdings shall have each duly
authorized, executed and delivered an Amendment to Pledge Agreement in the
form of Exhibit H (the Existing Holdings Pledge Agreement as so amended and
as subsequently modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, the "Holdings Pledge
Agreement") and the Collateral Agent, as pledgee thereunder, shall hold all
of the certificates representing the Pledged Securities referred to
therein, accompanied by executed and undated stock powers, and the Holdings
Pledge Agreement shall be in full force and effect.
(IV) On the Closing Date, the Agent shall have received (x)
such executed amendments (in form and substance reasonably satisfactory to
the Agent)
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to the Existing Mortgages (the Existing Mortgages as so amended, if at all,
each a "Mortgage" and collectively the "Mortgages") covering all the
Mortgaged Properties as the Agent deems necessary or appropriate to give
effect to the transactions contemplated by this Agreement and arrangements
reasonably satisfactory to the Collateral Agent shall be in place to
provide that counterparts of such amendments shall be recorded on the
Closing Date or within one Business Day thereafter in all places where the
original Existing Mortgages were filed and (y) such endorsements, if any,
to the Existing Mortgage Policies as the Agent deems appropriate.
(i) SOLVENCY. On the Closing Date, the Borrower shall have
delivered, or shall cause to be delivered, to the Agent a solvency letter
in the form of Exhibit I hereto from the Chief Financial Officer of the
Borrower and acceptable in form and substance to the Agent.
(j) FEES. On the Closing Date, the Borrower shall have paid to
the Agent and the Banks all Fees and expenses agreed upon by such parties
to be paid on or prior to such date.
(k) NOTICE OF BORROWING. The Agent shall have received the
Notice of Borrowing meeting the requirements of Section 1.02.
(l) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
the making of the Loans 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 Closing Date,
except to the extent that such representations and warranties expressly
relate to an earlier date.
(m) PRO FORMA COMPLIANCE. At the time of the making of the
Loans, each of the covenants set forth in Sections 7.11 through 7.13 shall
have been satisfied as of, and no Event of Default under Section 8.08(B) or
(C) shall exist as of, the TL Measurement Date determined on a PRO FORMA
basis as if the Loans were incurred on the TL Measurement Date.
(n) EXISTING CREDIT AGREEMENT. Concurrently with the
effectiveness of this Agreement, the Existing Credit Agreement shall have
become effective in accordance with its terms.
The acceptance of the benefits of the Loans 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.
All of the certificates, legal opinions and
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other documents and papers referred to in Section 4.01, unless otherwise
specified, shall be delivered to the Agent at its Notice Office for the account
of each of the Banks and, except for the Notes, in sufficient counterparts for
each of the Banks and shall be satisfactory in form and substance to the Agent.
SECTION 5. 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.
1.051 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.
1.052 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 Transaction 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.
1.053 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.
1.054 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
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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.
1.055 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of the
Loans will be used to repay AR Loans.
(b) 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.
1.056 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.
1.057 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.
1.058 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.
1.059 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
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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.
5.10 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as of the
Closing 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
5.10, "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 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) 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, 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 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 5.10(b), there were as of the Closing 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
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its Subsidiaries, taken as a whole, except as incurred in the ordinary course of
business consistent with past practices subsequent to December 31, 1996.
5.11 SECURITY INTERESTS. On and after the Closing 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 or 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.
5.12 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, 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.
5.13 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
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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 5.13 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 5.13 are made to the best knowledge of the Borrower.
5.14 SUBSIDIARIES. (a) Annex IV hereto lists each Subsidiary of the
Borrower existing on the Closing Date. Except as set forth in such Annex, the
Borrower owns 100% of the outstanding capital stock of each such Subsidiary.
(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 Existing Credit Agreement 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.
5.15 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.
5.16 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
-21-
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 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.
5.17 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 5.10(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 7.03. 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 Closing Date (other than properties that are solely
sign locations) and the type of interest therein held
-22-
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.
5.18 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.
5.19 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 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 6. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees
that on the Closing Date and thereafter for so long as this Agreement is in
effect and until no Notes are outstanding and the Loans, together with interest,
Fees and all other Obligations incurred hereunder, are paid in full:
1.061 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
-23-
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 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 6.01(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 6.01(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 7.11, 7.12 and 7.13, 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 8.08(B) and/or 8.08(C) as at the end of such
fiscal period.
-24-
(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.
(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
-25-
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.
1.062 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 reasonable times and intervals and to such reasonable
extent as the Agent or the Required Banks may desire.
1.063 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 Closing 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.
1.064 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,
-26-
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.
1.065 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 7.02 will not
constitute a breach of this Section 6.05.
1.066 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 material adverse effect on the
ability of the Borrower to perform its obligations under any Credit Document.
1.067 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
-27-
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.
1.068 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 whomsoever's possession they may be, are kept in good repair,
working order and condition, normal wear and tear excepted, and, subject to
Section 7.05, 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.
1.069 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.
6.10 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) No later than 60
days following the Closing 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 Closing 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.
-28-
(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 Closing 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 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 6.10 has been complied with.
(d) The Borrower agrees that each action required above by Section
6.10(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 6.10.
6.11 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
-29-
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.
6.12 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 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 7. NEGATIVE COVENANTS. The Borrower hereby covenants and
agrees, as of the Closing Date and thereafter for so long as this Agreement is
in effect and until no Notes are outstanding and the Loans, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full,
that:
1.071 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.
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1.072 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 7.05 hereof;
(c) the investments, acquisitions and transfers or dispositions of
properties permitted pursuant to Section 7.06;
(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 7.04(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 7.01
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
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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 3.02(A)(b),
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 7.11 through 7.13 or 8.08(B) or (C) determined on a PRO FORMA
basis as if such Permitted 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.
1.073 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,
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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 Existing Credit Agreement 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 assets of the Borrower and each Subsidiary existing
on the Closing Date at the location listed on Part C of Annex VIII which
Annex is to be provided to the Agent within 30 days following the Closing
Date and to be satisfactory to the Agent;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 8.09
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;
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(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 7.04(d);
(n) Liens on assets of Subsidiaries of the Borrower in favor of the
Borrower;
(o) Liens securing Indebtedness permitted by Section 7.04(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.
1.074 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 Existing Credit Agreement 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
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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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "▇▇▇▇▇ 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 (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.
1.075 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
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7.05(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 7.05(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 7.05(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.
1.077 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 7.02 and (y) after
the Restatement Effective Date, create or permit to be created any new
Subsidiary except to the extent created in compliance with the second sentence
of Section 7.06.
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1.078 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 ▇▇▇▇▇ Note or any other
Existing Indebtedness;
(b) amend or modify, or permit the amendment or modification of, any
provisions of any Subordinated Debt Documents;
(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 Existing Credit Agreement without the consent of
the Required Banks hereunder.
1.079 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 7.09 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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
▇▇▇▇▇ 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.
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(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 7.03 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.
7.10 TRANSACTIONS WITH AFFILIATES. (a) No later than 60 days
following the Closing 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 Closing 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 no other Liens except as
permitted by Section 7.03 and (y) which Additional 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 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 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, 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
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(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 8.01 shall occur and
be continuing or (iii) payments by the Borrower to Holdings under the Tax
Sharing Agreement.
7.11 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.
7.12 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
------ ------
Closing 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
December 31, 1999 through
December 30, 2000 $65,750,000
December 31, 2000 and
thereafter $70,500,000
7.13 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:
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Period Ratio
------ -----
Closing 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 8. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
1.081 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
1.082 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
1.083 COVENANTS. The Borrower shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 6.10, 6.11 or 7, or (b) default in the due performance or observance by
it of any term, covenant or agreement (other than those referred to in Section
8.01, 8.02 or clause (a) of this Section 8.03) 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
1.084 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 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 8.04 unless the principal amount of such Indebtedness exceeds $2,500,000
individually or in the aggregate at any one time; or
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1.085 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
1.086 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 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
1.087 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
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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
1.088 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 3.02(A)(c) 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:
Period Ratio
------ -----
Closing 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)
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ending on a Measurement Date occurring in a period set forth below is less than
the ratio set forth opposite such period:
Period Ratio
------ -----
Closing 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
1.089 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 8.05 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 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 (ii)
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 9. 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:
"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
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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 meaning provided in Section
6.10(a).
"Additional Subordinated Debt" shall mean subordinated debt issued by
the Borrower after the Closing 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 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 J.
"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
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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 10.09.
"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 Term Loan Agreement, as the same may be
from time to time further modified, amended and/or supplemented.
"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.
"AR Loan" shall have the meaning provided in the Existing Credit
Agreement.
"AR Percentage" shall mean at any time that percentage obtained by
dividing (i) the outstanding principal amount of AR Loans by (ii) the
outstanding principal amount of the Loans.
"AR Termination Date" shall have the meaning provided in the Existing
Credit Agreement.
"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
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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 form of Exhibit K 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 7.05(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) the Loans under Section 3.02(A)(c) and (y) AR Loans
under Section 4.02(A)(d) of the Existing Credit Agreement (whether or not AR
Loans are then outstanding) less (B) the aggregate of any amounts theretofore
expended after the Restatement Effective Date as permitted by Section 7.05(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.
"Bankruptcy Code" shall have the meaning provided in Section 8.05.
"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 have the meaning provided in Section
4.01(h)(I).
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"Borrowing" shall mean the incurrence of one Type of Loan from all of
the Banks 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 7.02(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.
"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)
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whose short-term commercial paper rating from Standard & Poor's Corporation
("S&P") is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ Investors
Service, Inc. ("▇▇▇▇▇'▇") 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 Moody's (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 Moody's, 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.
"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 Closing 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
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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.
"Closing Date" shall mean the date on which the Loans are incurred
upon satisfaction of the conditions set forth in Section 4.01.
"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, the amount set
forth opposite such Bank's name in Annex I hereto directly below the column
entitled "Commitment," as the same may be terminated pursuant to Section 2.02.
"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
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expense not payable in cash and amortization of discount and deferred issuance
and financing costs.
"Consolidated Credit Agreement" shall mean the Consolidated Credit
Agreement dated as of October 31, 1996 among the Borrower and the banks party
thereto as in effect immediately prior to the Closing Date.
"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 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
7.05(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.
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"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 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
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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 Party" shall mean the Borrower and each Guarantor.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Designated UOH Stockholders" shall mean the Management Investors,
▇▇▇▇▇ Investment Associates V, L.P. and ▇▇▇▇▇ 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
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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 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 8.
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"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 7.05(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) of the Existing Credit Agreement and/or (III) Loans
pursuant to Section 3.01 or 3.02(A)(a).
"Existing Borrower Pledge Agreement" shall mean the Borrower Pledge
Agreement as defined in the Consolidated Credit Agreement.
"Existing Credit Agreement" shall mean the Amendment and Restatement
dated as of May 21, 1997 to the Consolidated Credit Agreement dated as of
October 31, 1996 among the Borrower and the Banks party thereto as in effect on
the Closing Date and as the same may be subsequently amended, modified or
supplemented in accordance with the terms thereof and hereof.
"Existing Credit Agreement Documents" shall mean all the Credit
Documents as defined in the Existing Credit Agreement.
"Existing Holdings Pledge Agreement" shall mean the Holdings Pledge
Agreement as defined in the Consolidated Credit Agreement.
"Existing Indebtedness" shall have the meaning provided in Section
5.19.
"Existing Mortgages" and "Existing Mortgage Policies" shall mean the
Mortgages and Mortgages Policies as defined in the Consolidated Credit Agreement
and shall include any Additional Mortgage (as defined in the Consolidated Credit
Agreement) and all Mortgage Policies delivered in connection therewith.
"Existing Security Agreement" shall mean the Security Agreement as
defined in the Existing Credit Agreement as in effect immediately prior to the
Closing Date.
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"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 2.01.
"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 TL 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 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 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 have the meaning provided in Section
4.01(h)(III).
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"Holdings TL Guaranty" shall have the meaning provided in Section
4.01(g).
"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.
"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.
"▇▇▇▇▇" shall mean ▇▇▇▇▇ & Company, L.P., a Delaware limited
partnership doing business as ▇▇▇▇▇ & Company.
"▇▇▇▇▇ Designees" shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
"LaSalle" shall mean LaSalle National Bank.
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"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.
"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.
"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 ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
"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 Closing 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 Determin
ation 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 6.01(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
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certificate of the Borrower to the Banks pursuant to Section 6.01(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
6.01(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
6.01(e)(i). 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 6.01(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 8.01 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.
"Maturity Date" shall mean September 30, 2003.
"Measurement Date" shall mean the last day of each fiscal quarter of
the Borrower.
"Minimum Borrowing Amount" shall mean (i) for Loans maintained as Base
Rate Loans, $500,000 and (ii) for Loans maintained as Eurodollar Loans,
$1,000,000.
"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
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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 incurred after such Relevant Measurement Date and
prior to the delivery of an officer's certificate pursuant to Section 6.01(e)(i)
in respect of the next Relevant Measurement Date.
"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 6.10(b).
"Note" shall have the meaning provided in Section 1.05.
"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 ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 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.
"Original Credit Agreements" shall have the meaning provided in the
Existing Credit Agreement.
"Payment Office" shall mean the office of the Agent at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or such other office as the Agent may designate to
the Borrower from time to time.
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"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 7.01 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 7.02 (and not by the parenthetical in the lead in
paragraph of Section 7) 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 ▇▇▇▇▇ and its Affiliates, the ▇▇▇▇▇
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 Maturity Date) are (in the reasonable opinion of 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
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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 7.06 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 7.01, (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 7.03.
"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 Closing Date.
"Permitted Transferees" means (i) in the case of ▇▇▇▇▇, (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 ▇▇▇▇▇ Investment Associates V,
L.P. or any investment fund that is solely comprised of current and former
professionals of ▇▇▇▇▇) managed by, ▇▇▇▇▇), (B) any managing director, general
partner, limited partner, director, officer or employee of ▇▇▇▇▇ or any
Affiliate thereof (collectively, "▇▇▇▇▇ Associates"), (C) the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any ▇▇▇▇▇
Associate or ▇▇▇▇▇ Designee and
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(D) any trust, the beneficiaries of which, or a corporation or partnership, the
stockholders or partners of which, include only a ▇▇▇▇▇ Associate or ▇▇▇▇▇
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.
"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 11.16.
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"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 7.01.
"Reinvestment Election" shall have the meaning provided in Section
3.02(A)(b).
"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 (ECA), shall have
delivered a written termination notice to the Borrower, provided that such
notice may only be given while an Event of 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 6.01(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.
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"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 Banks holding more than 50% of the
aggregate principal amount of the Loans (or, if prior to the Closing Date, of
the aggregate Commitments).
"Required Banks (ECA)" shall mean the Required Banks as defined in the
Existing Credit Agreement.
"Restatement Effective Date" shall mean October 8, 1996.
"Scheduled Repayment" shall have the meaning provided in Section
3.02(A)(a).
"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 Existing Credit Agreement.
"Security Agreement" shall have the meaning provided in Section
4.01(h)(II).
"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 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.
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"▇▇▇▇▇ Note" shall have the meaning provided in Section 7.04(g).
"Specified Subsidiaries" shall have the meaning provided in Section
7.06.
"Subordinated Debt" shall mean and include the Permitted Subordinated
Debt, the Additional Subordinated Debt and the Permitted Holdings Debt, in each
case once issued.
"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 Closing 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.
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"Super-Majority Banks" shall mean the Banks which would constitute the
Required Banks if the reference to "50%" in the definition of Required Banks
were to read "66 2/3%."
"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).
"TL Measurement Date" shall mean the last day of the last month ended
prior to the Closing Date.
"TL 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 Loans and the denominator of which is the sum of (i) the
outstanding principal amount of the Loans and (ii) the outstanding principal
amount of AR Loans provided that for the purposes of any determination made
under Section 3.02(A)(c) during the period from the Closing Date to the date 180
days after the Closing Date "TL Percentage" shall equal 0%.
"Total Commitment" shall mean the sum of the Commitments of each of
the Banks.
"Transaction Expenses" shall have the meaning provided in the Existing
Credit Agreement.
"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.
"Working Capital" shall mean the excess of Consolidated Current Assets
over Consolidated Current Liabilities.
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"Written" or "in writing" shall mean any form of written communication
or a communication by means of telex, facsimile transmission, telegraph or
cable.
SECTION 10. THE AGENT.
1.101 APPOINTMENT. The Banks hereby designate Bankers Trust Company
as Agent (for purposes of this Section 10, 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.
1.102 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.
1.103 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.
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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, genuineness, 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.
1.104 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).
1.105 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.
1.106 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 (or, if prior to the Closing Date,
Commitments), 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.
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1.107 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 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.
1.108 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.
1.109 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.
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SECTION 11. MISCELLANEOUS.
1.111 PAYMENT OF EXPENSES, ETC. The Borrower agrees to: (i) whether
or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket 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).
1.112 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
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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 this Agreement or under any
of the other Credit Documents, including, without limitation, all interests in
Obligations purchased by such Bank pursuant to Section 11.06(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.
1.113 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.
1.114 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
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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 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 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 and its rights and obligations hereunder to one
or more commercial banks or other financial institutions (including one or more
Banks). 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 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 11.04(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 11.04(b), (i) Annex I
shall be deemed to be amended to reflect the Loans of the respective assignee
(which shall result in a direct reduction to the Loans 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 11.04, 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.
1.115 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.
1.116 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
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thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
1.117 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 7 and 8, 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
5.10(b) and (y) that if at any time the computations determining compliance with
Sections 7 and 8 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.
1.118 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
11.03, 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, 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 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
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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.
1.119 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.
11.10 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.
11.11 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.
11.12 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
affected thereby, (i) extend the Maturity Date (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 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
11.12, (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
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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 10
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.
11.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 3.04, 10.06 or 11.01 shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
11.14 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 or 3.04 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.
11.15 CONFIDENTIALITY. Subject to Section 11.04, 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 11.15) 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 provided
further that in no event shall any Bank be obligated or required to return any
materials furnished by the Borrower or any Subsidiary.
11.16 LENDER REGISTER. The Borrower hereby designates the Agent to
serve as its agent, solely for purposes of this Section 11.16, 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
-76-
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 11.04(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 11.16 other than those
resulting from the Agent's willful misconduct or gross negligence.
-77-
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:
-------
321 ▇. ▇▇▇▇▇ Street UNIVERSAL OUTDOOR, INC.,
Suite 1010 as Borrower
Chicago, Illinois
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇ By:
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇ --------------------------
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:
▇▇▇▇▇▇ FINANCIAL, INC.
By:
--------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY
By:
--------------------------
Name:
Title:
SUN TRUST BANK
By:
--------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME FUND
By:
--------------------------
Name:
Title:
SOUTHERN PACIFIC THRIFT AND LOAN
By:
--------------------------
Name:
Title:
ANNEX I
COMMITMENTS
BANK COMMITMENT
---- ----------
Bankers Trust $ 6,333,334
Company
La Salle National 8,500,000
Bank
Bank of America 8,333,332
Illinois
BankBoston 8,333,332
(formerly known as First
National Bank of Boston)
Union Bank of 8,333,332
California, N.A.
The Bank of New 3,666,667
York
Banque Paribas 3,666,667
Credit Lyonnais 3,666,667
The First National 3,666,667
Bank of Chicago
Fleet Bank, N.A. 3,666,667
▇▇▇▇▇▇ Financial, Inc. 3,666,667
State Street Bank and 3,666,667
Trust Company
ANNEX I
Page 2
BANK COMMITMENT
---- ----------
Sun Trust Bank 3,666,667
▇▇▇ ▇▇▇▇▇▇ American 3,666,667
Capital Prime Rate
Southern Pacific 2,166,667
Thrift and Loan
------------
Total: $ 75,000,000
------------
------------
ANNEX II
BANK ADDRESSES
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
La Salle National Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America Illinois ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
BankBoston
Mail Stop 01-08-08
(formerly known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
First National Bank ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
of Boston) Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
Union Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
Banque Paribas ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Vuarchex
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
Credit Lyonnais ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
The First National One First National Plaza
Bank of Chicago ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
Fleet Bank, N.A. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Financial, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
State Street Bank and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Trust Company ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Sun Trust Bank Mail Code ▇▇-▇▇▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ American ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
Southern Pacific Thrift ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and Loan ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
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