Exhibit 10.1
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FORM OF
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
among
UNIVERSAL OUTDOOR, INC.,
VARIOUS LENDING INSTITUTIONS,
LA SALLE NATIONAL BANK,
AS CO-AGENT
and
BANKERS TRUST COMPANY,
AS AGENT
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$12,500,000
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TABLE OF CONTENTS
PAGE
SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . . . 1
1.01 Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Borrowing Amounts, etc. . . . . . . . . . . . . . . . . . 3
1.03 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . 3
1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . 4
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . 6
1.08 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.09 Interest Periods. . . . . . . . . . . . . . . . . . . . . . . . . 7
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . . . 8
1.11 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.12 Change of Lending Office. . . . . . . . . . . . . . . . . . . . . 10
1.13 Replacement of Banks. . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2. Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . 12
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 12
2.02 Minimum Stated Amount . . . . . . . . . . . . . . . . . . . . . . 12
2.03 Letter of Credit Requests; Notices of Issuance. . . . . . . . . . 13
2.04 Agreement to Repay Letter of Credit Drawings. . . . . . . . . . . 13
2.05 Letter of Credit Participations . . . . . . . . . . . . . . . . . 14
2.06 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3. Fees; Commitments. . . . . . . . . . . . . . . . . . . . . . . . 17
3.01 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.02 Voluntary Reduction of Commitments. . . . . . . . . . . . . . . . 18
3.03 Mandatory Adjustments of Commitments, etc.. . . . . . . . . . . . 18
SECTION 4. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . 18
4.02 Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . 19
4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . . . 20
4.04 Net Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 5. Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.01 Restatement Effective Date. . . . . . . . . . . . . . . . . . . . 22
5.02 Credit Events . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6. Representations, Warranties and Agreements . . . . . . . . . . . 26
6.01 Corporate Status. . . . . . . . . . . . . . . . . . . . . . . . . 26
6.02 Corporate Power and Authority . . . . . . . . . . . . . . . . . . 26
6.03 No Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.04 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.05 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . 27
6.06 Governmental Approvals. . . . . . . . . . . . . . . . . . . . . . 27
6.07 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 28
6.08 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 28
6.09 True and Complete Disclosure. . . . . . . . . . . . . . . . . . . 28
6.10 Financial Condition; Financial Statements . . . . . . . . . . . . 28
6.11 Security Interests. . . . . . . . . . . . . . . . . . . . . . . . 29
6.12 Representations and Warranties in Transaction Documents . . . . . 30
6.13 Consummation of Transaction . . . . . . . . . . . . . . . . . . . 30
6.14 Tax Returns and Payments. . . . . . . . . . . . . . . . . . . . . 30
6.15 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . 30
6.16 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.17 Patents, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.18 Pollution and Other Regulations . . . . . . . . . . . . . . . . . 32
6.19 Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.20 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.21 Existing Indebtedness . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . 33
7.01 Information Covenants . . . . . . . . . . . . . . . . . . . . . . 34
7.02 Books, Records and Inspections. . . . . . . . . . . . . . . . . . 36
7.03 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.04 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 37
7.05 Consolidated Corporate Franchises . . . . . . . . . . . . . . . . 37
7.06 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . . . 37
7.07 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.08 Good Repair . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.09 End of Fiscal Years; Fiscal Quarters. . . . . . . . . . . . . . . 39
7.10 Additional Security; Further Assurances . . . . . . . . . . . . . 39
7.11 Corporate Separateness. . . . . . . . . . . . . . . . . . . . . . 40
7.12 Compliance with Environmental Laws. . . . . . . . . . . . . . . . 41
SECTION 8. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . 41
8.01 Changes in Business . . . . . . . . . . . . . . . . . . . . . . . 41
(ii)
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc. . . . . . 42
8.03 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.04 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.05 Capital Expenditures. . . . . . . . . . . . . . . . . . . . . . . 46
8.06 Investments and Loans . . . . . . . . . . . . . . . . . . . . . . 47
8.07 Subsidiaries; etc.. . . . . . . . . . . . . . . . . . . . . . . . 47
8.08 Prepayments of Indebtedness, etc. . . . . . . . . . . . . . . . . 47
8.09 Dividends, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.10 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . 49
8.11 Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . . . 50
8.12 Minimum Adjusted EBITDA . . . . . . . . . . . . . . . . . . . . . 50
8.13 Borrower Leverage Ratio . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 51
9.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . . . 52
9.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.04 Default Under Other Agreements. . . . . . . . . . . . . . . . . . 52
9.05 Bankruptcy, etc.. . . . . . . . . . . . . . . . . . . . . . . . . 52
9.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.07 Credit Documents. . . . . . . . . . . . . . . . . . . . . . . . . 53
9.08 Holdings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.10 AF Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.01 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . 81
11.03 Lack of Reliance on the Agent. . . . . . . . . . . . . . . . . . 81
11.04 Certain Rights of the Agent. . . . . . . . . . . . . . . . . . . 82
11.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.06 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 82
11.07 The Agent in Its Individual Capacity . . . . . . . . . . . . . . 82
11.08 Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.09 Resignation by the Agent . . . . . . . . . . . . . . . . . . . . 83
SECTION 12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 84
12.01 Payment of Expenses, etc.. . . . . . . . . . . . . . . . . . . . 84
12.02 Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . . . 84
(iii)
12.03 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
12.04 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . 85
12.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . 87
12.06 Payments Pro Rata. . . . . . . . . . . . . . . . . . . . . . . . 87
12.07 Calculations; Computations . . . . . . . . . . . . . . . . . . . 88
12.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of
Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
12.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 89
12.10 Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
12.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . . . 89
12.12 Amendment or Waiver. . . . . . . . . . . . . . . . . . . . . . . 90
12.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
12.14 Domicile of Loans. . . . . . . . . . . . . . . . . . . . . . . . 90
12.15 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 90
12.16 Special Amendments . . . . . . . . . . . . . . . . . . . . . . . 91
ANNEX I -- Commitments
ANNEX II -- Bank Addresses
ANNEX III -- Government Approvals
ANNEX IV -- Subsidiaries
ANNEX V -- Properties
ANNEX VI -- Existing Indebtedness
ANNEX VII -- Insurance Policies
ANNEX VIII -- Existing Liens
ANNEX IX -- Management Fees
EXHIBIT A-1 -- Form of Notice of Borrowing
EXHIBIT A-2 -- Form of Letter of Credit Request
EXHIBIT B-1 -- Form of Revolving Note
EXHIBIT B-2 -- Form of Swingline Note
EXHIBIT C -- Form of Assignment Agreement
(iv)
AMENDMENT AND RESTATEMENT dated as of October __, 1996 to REVOLVING
CREDIT AGREEMENT dated as March 29, 1996, among UNIVERSAL OUTDOOR, INC., an
Illinois corporation, the lending institutions listed from time to time on Annex
I hereto (each a "Bank" and, collectively, the "Banks"), LA SALLE NATIONAL BANK,
as Co-Agent and BANKERS TRUST COMPANY, as agent (the "Agent"). Unless otherwise
defined herein, all capitalized terms used herein and defined in Section 10 are
used herein as so defined.
W I T N E S S E T H :
WHEREAS, the Borrower and certain financial institutions are parties
to a Revolving Credit Agreement, dated as of March 29, 1996 (as the same has
been amended, modified or supplemented prior to the date hereof, the "Original
Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Original
Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree that the Original Credit
Agreement shall be and hereby is amended and restated in its entirety as
follows, provided that if the Restatement Effective Date has not occurred on or
prior to November 30, 1996 this amendment and restatement shall be void and of
no further effect, with the Original Credit Agreement to remain in effect;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 COMMITMENT. (a) Subject to and upon the terms and conditions
herein set forth, each Bank severally agrees to make a loan or loans (each a
"Revolving Loan" and, collectively, the "Revolving Loans"), which Revolving
Loans (i) shall be made at any time and from time to time on and after the
Restatement Effective Date and prior to the Expiry Date, (ii) except as
hereinafter provided, may, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
provided that (x) all Revolving Loans made as part of the same Borrowing shall,
unless otherwise specifically provided herein, consist of Loans of the same Type
and (y) Revolving Loans maintained as Eurodollar Loans may not be incurred prior
to the Syndication Date, (iii) may be repaid and be reborrowed in accordance
with the provisions hereof and (iv) shall not exceed for any Bank at any time
outstanding that aggregate
principal amount which, when combined with the
aggregate outstanding principal amount of all other Revolving Loans of such Bank
and with such Bank's Adjusted Percentage of the sum of (x) the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (y) the outstanding principal amount of
Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time, equals (1) if such Bank is a Non-Defaulting Bank,
the Adjusted Revolving Commitment of such Bank at such time and (2) if such Bank
is a Defaulting Bank, the Revolving Commitment of such Bank at such time.
(b) Subject to and upon the terms and conditions herein set forth,
BTCo in its individual capacity agrees to make at any time and from time to time
on or after the Initial Borrowing Date and prior to the Swingline Expiry Date, a
loan or loans to the Borrower (each a "Swingline Loan," and, collectively, the
"Swingline Loans"), which Swingline Loans (i) shall be made and maintained as
Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed in aggregate principal amount at any
time outstanding, when combined with the aggregate principal amount of all
Revolving Loans made by Non-Defaulting Banks then outstanding and the Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Swingline Loans) at such time, an amount equal to the Adjusted
Total Revolving Commitment then in effect and (iv) shall not exceed in aggregate
principal amount at any time outstanding the Maximum Swingline Amount. BTCo
will not make a Swingline Loan after it has received written notice from the
Required Banks that one or more of the applicable conditions to Credit Events
specified in Section 5.02 are not then satisfied.
(c) On any Business Day, BTCo may, in its sole discretion, give
notice to the Banks that its outstanding Swingline Loans shall be funded with a
Borrowing of Revolving Loans (PROVIDED that each such notice shall be deemed to
have been automatically given upon the occurrence of an Event of Default under
Section 9.05 or upon the exercise of any of the remedies provided in the last
paragraph of Section 9), in which case a Borrowing of Revolving Loans
constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing")
shall be made on the immediately succeeding Business Day by all Banks PRO RATA
based on each Bank's Adjusted Percentage, and the proceeds thereof shall be
applied directly to repay BTCo for such outstanding Swingline Loans. Each Bank
hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by BTCo
notwithstanding (i) that the amount of the Mandatory Borrowing may not comply
with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any
conditions specified in Section 5 are then satisfied, (iii) whether a Default or
an Event of Default has occurred and is contin-
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uing, (iv) the date of such Mandatory Borrowing and (v) any reduction in the
Total Revolving Commitment or the Adjusted Total Revolving Commitment after
any such Swingline Loans were made. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code in respect of the Borrower), each Bank
(other than BTCo) hereby agrees that it shall forthwith purchase from BTCo
(without recourse or warranty) such assignment of the outstanding Swingline
Loans as shall be necessary to cause the Banks to share in such Swingline
Loans ratably based upon their respective Adjusted Percentages, provided that
all interest payable on the Swingline Loans shall be for the account of BTCo
until the date the respective assignment is purchased and, to the extent
attributable to the purchased assignment, shall be payable to the Bank
purchasing same from and after such date of purchase.
1.02 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal amount
of each Borrowing shall not be less than the Minimum Borrowing Amount. More
than one Borrowing may be incurred on any day, provided that at no time shall
there be outstanding more than seven Borrowings of Eurodollar Loans hereunder
and under the AF Credit Agreement.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to
incur Revolving Loans, it shall give the Agent at its Notice Office, prior to
11:00 A.M. (New York time), at least three Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of each Borrowing of
Eurodollar Loans and at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of Base Rate
Loans to be made hereunder. Each such notice (each a "Notice of Borrowing")
shall be in the form of Exhibit A-1 and shall be irrevocable and shall specify
(i) the aggregate principal amount of the Revolving Loans to be made pursuant to
such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and
(iii) whether the respective Borrowing shall consist of Base Rate Loans or (to
the extent permitted) Eurodollar Loans and, if Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Agent shall promptly give each
Bank written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing, of such Bank's proportionate share thereof and of the other
matters covered by the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give BTCo, prior to 11:00 A.M. (New York
time) on the day such Swingline Loan is to be made, written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Loan to be
made hereunder. Each such notice shall be irrevocable and shall specify in each
case (x) the date of such Borrowing (which shall be a Business Day) and (y) the
aggregate principal amount of the Swingline Loan to be made pursuant to such
Borrowing.
-3-
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(c), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section.
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Agent, BTCo (in the case of Swingline Loans) and the Letter of Credit Issuer (in
the case of Letters of Credit), as the case may be, may prior to receipt of
written confirmation act without liability upon the basis of such telephonic
notice, believed by the Agent, BTCo or the Letter of Credit Issuer 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, BTCo's or the Letter of
Credit Issuer's record of the terms of such telephonic notice.
1.04 DISBURSEMENT OF FUNDS. (a) No later than 1:00 P.M. (New York
time) on the date specified in each Notice of Borrowing, each Bank will make
available its PRO RATA share of each Borrowing requested to be made on such date
in the manner provided below, provided that all Swingline Loans shall be made
available by BTCo no later than 2:00 P.M. on the date requested. All such
amounts shall be made available to the Agent in U.S. dollars and immediately
available funds at the Payment Office and the Agent promptly will make available
to the Borrower by depositing to its account at the Payment Office the aggregate
of the amounts so made available in the type of funds received. Unless the
Agent shall have been notified by any Bank prior to the date of Borrowing that
such Bank does not intend to make available to the Agent its portion of the
Borrowing or Borrowings to be made on such date, the Agent may assume that such
Bank has made such amount available to the Agent on such date of Borrowing, and
the Agent, in reliance upon such assumption, may (in its sole discretion and
without any obligation to do so) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the Agent
by such Bank and the Agent has made available same to the Borrower, the Agent
shall be entitled to recover such corresponding amount from such Bank. If such
Bank does not pay such corresponding amount forthwith upon the Agent's demand
therefor, the Agent shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Agent. 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.
-4-
(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.
1.05 NOTES. (a) The Borrower's obligation to pay the principal of,
and interest on, the Loans made to it by each Bank shall be evidenced (i) if
Revolving Loans, by a promissory note substantially in the form of Exhibit B-1
with blanks appropriately completed in conformity herewith (each a "Revolving
Note" and, collectively, the "Revolving Notes") and (ii) if Swingline Loans, by
a promissory note substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(b) The Revolving Note issued to each Bank shall (i) be executed by
the Borrower, (ii) be payable to the order of such Bank and be dated the
Restatement Effective Date, (iii) be in a stated principal amount equal to the
Revolving Commitment of such Bank and be payable in the principal amount of the
Revolving Loans evidenced thereby, (iv) mature on the Expiry Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) The Swingline Note issued to BTCo shall (i) be executed by the
Borrower, (ii) be payable to the order of BTCo and be dated the Restatement
Effective Date, (iii) be in a stated principal amount equal to the Maximum
Swingline Amount and be payable in the principal amount of Swingline Loans
evidenced thereby, (iv) mature on the Swingline Expiry Date, (v) bear interest
as provided in Section 1.08 in respect of the Base Rate Loans evidenced thereby
and (vi) be entitled to the benefits of this Agreement and the other Credit
Documents.
(d) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect the Borrower's obligations in respect of such
Loans.
1.06 CONVERSIONS. The Borrower shall have the option to convert on
any Business Day occurring on and after the Syndication Date all or a portion at
least equal to the applicable Minimum Borrowing Amount of the outstanding
principal amount of the Revolving Loans (with Swingline Loans at all times to be
maintained as Base Rate 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
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of a Borrowing of Eurodollar Loans shall reduce the outstanding principal amount
of the Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may not be converted
into Eurodollar Loans if any violation of Section 9.01 or any Event of Default
is then in existence to the extent that the Agent or the Required Banks have
determined that any such conversion at such time would be disadvantageous to the
Banks and (iii) Borrowings of Eurodollar Loans resulting from this Section 1.06
shall be limited in number as provided in Section 1.02. Each such conversion
shall be effected by the Borrower giving the Agent at its Notice Office, prior
to 11:00 A.M. (New York time), at least three Business Days' (or two Business
Days', in the case of a conversion into Base Rate Loans) prior written notice
(or telephonic notice promptly confirmed in writing) (each a "Notice of
Conversion") specifying the Loans to be so converted, the Type of Loans to be
converted into and, if to be converted into a Borrowing of Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Agent shall give each
Bank prompt notice of any such proposed conversion affecting any of its Loans.
1.07 PRO RATA BORROWINGS. All Revolving Loans under this Agreement
shall be made by the Banks PRO RATA on the basis of their Adjusted Percentages.
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.
1.08 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
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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 Revolving Loans that are
Base Rate Loans) (on the amount prepaid or converted), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Agent, upon determining the interest rate for any Borrowing
of Eurodollar Loans for any Interest Period, shall promptly notify the Borrower
and the Banks thereof.
1.09 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
the option of the Borrower, be a one, two, three or six month period.
Notwithstanding anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of Eurodollar Loans
shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of Base Rate Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iii) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
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(iv) no Interest Period shall extend beyond the Expiry Date; and
(v) no Interest Period may be elected at any time when a violation of
Section 9.01 or an Event of Default is then in existence if the Agent or
the Required Banks have determined that such an election at such time would
be disadvantageous to the Banks.
(b) If upon the expiration of any Interest Period, the Borrower has
failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the Borrower shall
be deemed to have elected to convert such Borrowing into a Borrowing of Base
Rate Loans effective as of the expiration date of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in
the case of clause (i) below, the Agent or (y) in the case of clauses (ii) and
(iii) below, any Bank shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest
Period that, by reason of any changes arising after the Restatement
Effective Date affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a change
in the rate of taxes or similar charges) because of (x) any change since
the Restatement Effective Date in any applicable law, governmental rule,
regulation, guideline or order (or in the interpretation or administration
thereof and including the introduction of any new law or governmental rule,
regulation, guideline or order) (such as, for example, but not limited to,
a change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate) and/or (y) other circumstances
affecting such Bank, the interbank Eurodollar market or the position of
such Bank in such market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan
has become unlawful by compliance by such Bank in good faith with any law,
governmental rule, regulation, guideline (or would conflict with any such
governmental rule, regulation, guideline or order not having the force of
law but with which such Bank customarily complies even though the failure
to comply therewith would not be
-8-
unlawful), or has become impracticable as a result of a contingency
occurring after the Restatement Effective Date which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Agent in the case of clause (i)
above) shall (x) on such date and (y) within ten Business Days of the date on
which such event no longer exists give notice (by telephone confirmed in
writing) to the Borrower and to the Agent of such determination (which notice
the Agent shall promptly transmit to each of the other Banks). Thereafter (x)
in the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion given by the Borrower with respect
to Eurodollar Loans which have not yet been incurred shall be deemed rescinded
by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to
such Bank, upon written demand therefor, such additional amounts (in the form of
an increased rate of, or a different method of calculating, interest or
otherwise as such Bank in its sole discretion shall determine) as shall be
required to compensate such Bank for such increased costs or reductions in
amounts receivable hereunder (a written notice as to the additional amounts owed
to such Bank, showing the basis for the calculation thereof, submitted to the
Borrower by such Bank shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) and (z) in the case of clause (iii) above, the
Borrower shall take one of the actions specified in Section 1.10(b) as promptly
as possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii) the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or (iii), or
(ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' notice to the Agent, require the affected Bank to convert each
such Eurodollar Loan into a Base Rate Loan, provided that if more than one Bank
is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the Restatement
Effective Date, the adoption or effectiveness of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
-9-
reducing the rate of return on such Bank's capital or assets as a consequence of
its commitments or obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, effectiveness, change or compliance
(taking into consideration such Bank's policies with respect to capital
adequacy), then from time to time, within 15 days after demand by such Bank
(with a copy to the Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction. Each Bank,
upon determining in good faith that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall set forth the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish any of the Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(c) upon the subsequent receipt of such notice.
1.11 COMPENSATION. (a) The Borrower shall compensate each Bank,
upon its written request (which request shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Bank to fund its Eurodollar Loans but excluding in any event the loss of
anticipated profits) which such Bank may sustain: (i) if for any reason (other
than a default by such Bank or the Agent) a Borrowing of Eurodollar Loans does
not occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion (whether or not withdrawn by the Borrower or deemed withdrawn
pursuant to Section 1.10(a)); (ii) if any prepayment, repayment or conversion of
any of its Eurodollar Loans occurs on a date which is not the last day of an
Interest Period applicable thereto; (iii) if any prepayment of any of its
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the
Borrower to repay its Eurodollar Loans when required by the terms of this
Agreement or (y) an election made pursuant to Section 1.10(b).
(b) Notwithstanding anything in this Agreement to the contrary, to
the extent any notice required by Section 1.10, 2.06 or 4.04 is given by any
Bank more than 180 days after such Bank obtained, or reasonably should have
obtained, knowledge of the occurrence of the event giving rise to the additional
costs of the type described in such Section, such Bank shall not be entitled to
compensation under Section 1.10, 2.06 or 4.04 for any amounts incurred or
accruing prior to the giving of such notice to the Borrower.
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.06 or 4.04 with respect to such Bank, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office for any Loans affected by such
event, provided that such designation is made on such terms that such Bank and
its lending office suffer no economic, legal or
-10-
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section. Nothing in this Section
1.12 shall affect or postpone any of the obligations of the Borrower or the
right of any Bank provided in Section 1.10, 2.06 or 4.04.
1.13 REPLACEMENT OF BANKS. (w) Upon any AF Bank being replaced under
Section 2.01 of the AF Credit Agreement, (x) upon the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
Section 2.06 or Section 4.04 with respect to any Bank which results in such Bank
charging to the Borrower increased costs in excess of those being generally
charged by the other Banks, (y) if a Bank becomes a Defaulting Bank and/or (z)
in the case of a refusal by a Bank to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been approved
by the Required Banks or Super Majority Banks, as the case may be, as provided
in Section 12.12, the Borrower shall have the right, if no Default or Event of
Default then exists, to replace (and, in the case of clause (w) above, shall
replace) such Bank (the "Replaced Bank") with one or more other transferee or
transferees who shall be acceptable to the Agent and none of whom shall
constitute a Defaulting Bank at the time of such replacement (collectively, the
"Replacement Bank") reasonably acceptable to the Agent, provided that (i) any
Bank replaced pursuant to this Section 1.13 must also be replaced as an AF Bank
at the same time under Section 2.01 of the AF Credit Agreement by the same
Replacement Bank (and in the same pro rata amounts if more than one Replacement
Bank), (ii) any Bank that is replaced as an AF Bank pursuant to Section 2.01 of
the AF Credit Agreement must also be replaced at the same time as a Bank
hereunder by the same Replacement Bank (and in the same pro rata amounts if more
than one Replacement Bank), (iii) 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 12.04(b) (and with all fees payable pursuant to
said Section 12.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire all of the Revolving Commitment and outstanding
Revolving Loans of the Replaced Bank and, in connection therewith, shall pay to
the Replaced Bank in respect thereof an amount equal to the sum of (A) an amount
equal to the principal of, and all accrued interest on, all outstanding Loans of
the Replaced Bank and (B) an amount equal to all accrued, but theretofore
unpaid, Fees owing to the Replaced Bank pursuant to Section 3.01 and (iv) 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 Agreements, the payment of amounts referred to in
clauses (iii) and (iv) 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. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that a Letter of Credit
Issuer at any time and from time to time on or after the Initial Borrowing Date
and prior to the Expiry Date to issue, for the account of the Borrower and in
support of such standby obligations of the Borrower that are acceptable to the
Agent (each such letter of credit a "Letter of Credit" and, collectively, the
"Letters of Credit"), and subject to and upon the terms and conditions herein
set forth the Letter of Credit Issuer agrees to issue from time to time,
irrevocable letters of credit denominated in U.S. dollars in such form as may be
approved by the Letter of Credit Issuer and the Agent. Each letter of credit
issued under the Original Credit Agreement by an institution that is a Bank
hereunder on the Restatement Effective Date and that remains outstanding on the
Restatement Effective Date (each an "Existing Letter of Credit") shall
constitute a "Letter of Credit" for all purposes of this Agreement and shall be
deemed issued, for purposes of Section 2.05(a), 3.01(b) and 3.01(c), on the
Restatement Effective Date.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued, the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $5,000,000 or (y) when added to the aggregate principal amount
of all Revolving Loans made by Non-Defaulting Banks and Swingline Loans then
outstanding, the Adjusted Total Revolving Commitment at such time; and (ii) each
Letter of Credit shall have an expiry date occurring not later than one year
after such Letter of Credit's date of issuance (other than Existing Letters of
Credit) although any Letter of Credit may be extendable for successive periods
of up to 12 months, but not beyond the Business Day next preceding the Expiry
Date, on terms acceptable to the Letter of Credit Issuer and in no event shall
any Letter of Credit have an expiry date occurring later than the Business Day
next preceding the Expiry Date.
(c) Notwithstanding the foregoing, in the event a Bank Default
exists, the Letter of Credit Issuer shall not be required to issue any Letter of
Credit unless the Letter of Credit Issuer has entered into arrangements
satisfactory to it and the Borrower to eliminate the Letter of Credit Issuer's
risk with respect to the participation in Letters of Credit of the Defaulting
Bank or Banks, including by cash collateralizing such Defaulting Bank's or
Banks' Percentage of the Letter of Credit Outstandings.
2.02 MINIMUM STATED AMOUNT. The initial Stated Amount of each Letter
of Credit shall be not less than $25,000 or such lesser amount acceptable to the
Letter of Credit Issuer.
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2.03 LETTER OF CREDIT REQUESTS; NOTICES OF ISSUANCE. (a) Whenever
it desires that a Letter of Credit be issued after the Initial Borrowing Date,
the Borrower shall give the Agent and the Letter of Credit Issuer written notice
(including by way of telecopier) in the form of Exhibit A-2 thereof prior to
1:00 P.M. (New York time) at least three Business Days (or such shorter period
as may be acceptable to the Letter of Credit Issuer) prior to the proposed date
of issuance (which shall be a Business Day) (each a "Letter of Credit Request"),
which Letter of Credit Request shall include any other documents that the Letter
of Credit Issuer customarily requires in connection therewith.
(b) The Letter of Credit Issuer shall, promptly after each issuance
of a Letter of Credit by it, give the Agent, each Bank and the Borrower written
notice of the issuance of such Letter of Credit, accompanied by a copy to the
Agent of the Letter of Credit or Letters of Credit issued by it.
2.04 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
hereby agrees to reimburse the Letter of Credit Issuer, by making payment to the
Agent at the Payment Office, for any payment or disbursement made by the Letter
of Credit Issuer under any Letter of Credit (each such amount so paid or
disbursed until reimbursed, an "Unpaid Drawing") immediately after, and in any
event on the date on which the Borrower is notified by the Letter of Credit
Issuer of such payment or disbursement with interest on the amount so paid or
disbursed by the Letter of Credit Issuer, to the extent not reimbursed prior to
1:00 P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but not including the date the Letter of
Credit Issuer is reimbursed therefor at a rate per annum which shall be the
Applicable Margin in excess of the Base Rate as in effect from time to time
(plus an additional 2% per annum if not reimbursed by the third Business Day
after the date of such notice of payment or disbursement), such interest also to
be payable on demand.
(b) The Borrower's obligation under this Section 2.04 to reimburse
the Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Letter of Credit Issuer, the
Agent or any Bank, including, without limitation, any defense based upon the
failure of any drawing under a Letter of Credit to conform to the terms of the
Letter of Credit or any non-application or misapplication by the beneficiary of
the proceeds of such drawing; PROVIDED, HOWEVER, that the Borrower shall not be
obligated to reimburse the Letter of Credit Issuer for any wrongful payment made
by the Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Letter of Credit Issuer.
-13-
2.05 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, (and on the
Restatement Effective Date with respect to any Existing Letter of Credit), the
Letter of Credit Issuer shall be deemed to have sold and transferred to each
other Bank, and each such Bank (each a "Participant") shall be deemed
irrevocably and unconditionally to have purchased and received from such Letter
of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Bank's Adjusted Percentage, in such Letter
of Credit, each substitute letter of credit, each drawing made thereunder and
the obligations of the Borrower under this Agreement with respect thereto
(although the Letter of Credit Fee shall be payable directly to the Agent for
the account of the Banks as provided in Section 3.01(b) and the Participants
shall have no right to receive any portion of any Facing Fees) and any security
therefor or guaranty pertaining thereto. Upon any change in the Revolving
Commitments or Adjusted Percentages of the Banks pursuant to Section 12.04(b) or
upon a Bank Default, it is hereby agreed that, with respect to all outstanding
Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to
the participations pursuant to this Section 2.05 to reflect the new Adjusted
Percentages of the assigning and assignee Bank or of all Banks, as the case may
be.
(b) In determining whether to pay under any Letter of Credit, the
Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by the Letter of Credit Issuer under or in
connection with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct, shall not create for the Letter of Credit
Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to the Letter of Credit Issuer pursuant to Section 2.04(a), the
Letter of Credit Issuer shall promptly notify the Agent, and the Agent shall
promptly notify each Participant of such failure, and each Participant shall
promptly and unconditionally pay to the Agent for the account of the Letter of
Credit Issuer, the amount of such Participant's Adjusted Percentage of such
payment in U.S. dollars and in same day funds; PROVIDED, HOWEVER, that no
Participant shall be obligated to pay to the Agent its Adjusted Percentage of
such unreimbursed amount for any wrongful payment made by the Letter of Credit
Issuer under a Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of the Letter of Credit
Issuer. If the Agent so notifies any Participant required to fund an Unpaid
Drawing under a Letter of Credit prior to 11:00 A.M. (New York time) on any
Business Day, such Participant shall make available to the Agent for the account
of the Letter of Credit Issuer such Participant's Adjusted Percentage of the
amount of such payment on such Business Day in same day funds. If and to the
extent such Participant
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shall not have so made its Adjusted Percentage of the amount of such Unpaid
Drawing available to the Agent for the account of the Letter of Credit Issuer,
such Participant agrees to pay to the Agent for the account of the Letter of
Credit Issuer, forthwith on demand such amount, together with interest thereon,
for each day from such date until the date such amount is paid to the Agent for
the account of the Letter of Credit Issuer at the overnight Federal Funds
Effective Rate. The failure of any Participant to make available to the Agent
for the account of the Letter of Credit Issuer its Adjusted Percentage of any
Unpaid Drawing under any Letter of Credit shall not relieve any other
Participant of its obligation hereunder to make available to the Agent for the
account of the Letter of Credit Issuer its Adjusted Percentage of any payment
under any Letter of Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other
Participant to make available to the Agent for the account of the Letter of
Credit Issuer such other Participant's Adjusted Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Agent has received for the account of
the Letter of Credit Issuer any payments from the Participants pursuant to
clause (c) above, the Letter of Credit Issuer shall pay to the Agent and the
Agent shall promptly pay to each Participant which has paid its Adjusted
Percentage thereof, in U.S. dollars and in same day funds, an amount equal to
such Participant's Adjusted Percentage of the principal amount thereof and
interest thereon accruing at the overnight Federal Funds Effective Rate after
the purchase of the respective participations.
(e) The obligations of the Participants to make payments to the Agent
for the account of the Letter of Credit Issuer with respect to Letters of Credit
shall be irrevocable and not subject to counterclaim, set-off or other defense
or any other qualification or exception whatsoever (provided that no Participant
shall be required to make payments resulting from the Agent's gross negligence
or willful misconduct) and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which
the Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any Person for whom
any such transferee may be acting), the Agent, the Letter of Credit Issuer,
any Bank or other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower and
the beneficiary named in any such Letter of Credit);
-15-
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by
the Borrower, the Participants will reimburse and indemnify the Letter of Credit
Issuer, in proportion to their respective Adjusted Percentages, for and against
any and all liabilities, obligations, losses, damages, penalties, claims,
actions, judgments, costs, expenses or disbursements of whatsoever kind or
nature which may be imposed on, asserted against or incurred by the Letter of
Credit Issuer in performing its respective duties in any way relating to or
arising out of its issuance of Letters of Credit; PROVIDED that no Participants
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Letter of Credit Issuer's gross negligence or willful
misconduct.
2.06 INCREASED COSTS. If at any time after the Restatement Effective
Date, the adoption or effectiveness of any applicable law, rule or regulation,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the Letter
of Credit Issuer or any Bank with any request or directive (whether or not
having the force of law) by any such authority, central bank or comparable
agency shall either (i) impose, modify or make applicable any reserve, deposit,
capital adequacy or similar requirement against Letters of Credit issued by the
Letter of Credit Issuer or such Bank's participation therein, or (ii) shall
impose on the Letter of Credit Issuer or any Bank any other conditions affecting
this Agreement, any Letter of Credit or such Bank's participation therein; and
the result of any of the foregoing is to increase the cost to the Letter of
Credit Issuer or such Bank of issuing, maintaining or participating in any
Letter of Credit, or to reduce the amount of any sum received or receivable by
the Letter of Credit Issuer or such Bank hereunder (other than any increased
cost or reduction in the amount received or receivable resulting from the
imposition of or a change in the rate of taxes or similar charges), then, upon
demand to the Borrower by the Letter of Credit Issuer or such Bank (a copy of
which notice shall be sent by the Letter of Credit Issuer or such Bank to the
Agent), the Borrower shall pay to the Letter of Credit Issuer or such Bank such
additional amount or amounts as will compensate the Letter of Credit Issuer or
such Bank for such increased cost or reduction. A certificate submitted to the
Borrower by the Letter of Credit Issuer or such Bank, as the case may be (a copy
of which certificate shall be sent by the Letter of Credit Issuer or such Bank
to the Agent),
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setting forth the basis for the determination of such additional
amount or amounts necessary to compensate the Letter of Credit Issuer or such
Bank as aforesaid shall be conclusive and binding on the Borrower absent
manifest error, although the failure to deliver any such certificate shall not
release or diminish any of the Borrower's obligations to pay additional amounts
pursuant to this Section 2.06 upon the subsequent receipt thereof.
SECTION 3. FEES; COMMITMENTS.
3.01 FEES. (a) The Borrower agrees to pay to the Agent a commitment
commission ("Commitment Commission") for the account of each Non-Defaulting Bank
for the period from and including the Restatement Effective Date to, but not
including, the Expiry Date, or, if earlier, the date upon which the Total
Revolving Commitment has been terminated, computed at a rate for each day equal
to 1/2 of 1% per annum on such Bank's Unutilized Revolving Commitment on such
day. Such Commitment Commission shall be due and payable in arrears on the last
Business Day of each February, May, August and November and on the Expiry Date,
or, if earlier, the date upon which the Total Revolving Commitment is
terminated.
(b) The Borrower agrees to pay to the Agent for the account of each
Non-Defaulting Bank pro rata on the basis of their respective Adjusted
Percentages, a fee in respect of each Letter of Credit (the "Letter of Credit
Fee") computed for each day at the rate equal to the Applicable Eurodollar
Margin then in effect on the Stated Amount of such Letter of Credit on such day.
Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on
the last Business Day of each February, May, August and November of each year
and on the date upon which the Total Revolving Commitment is terminated.
(c) The Borrower agrees to pay to pay directly to the Letter of
Credit Issuer a fee in respect of each Letter of Credit (the "Facing Fee")
computed for each day at the rate of 1/4 of 1% per annum on the Stated Amount
of such Letter of Credit on such day provided that in no event shall the annual
Facing Fee be less than $500. Accrued Facing Fees shall be due and payable
quarterly in arrears on the last Business Day of each February, May, August and
November of each year and on the date upon which the Total Revolving Commitment
is terminated.
(d) The Borrower agrees to pay directly to the Letter of Credit
Issuer upon each issuance of, payment under, and/or amendment of, a Letter of
Credit such amount as shall at the time of such issuance, payment or amendment
be the administrative charge which the Letter of Credit Issuer is customarily
charging for issuances of, payments under or amendments of, letters of credit
issued by it.
(e) The Borrower shall pay to the Agent (x) on the Effective Date for
its own account and/or for distribution to the Banks such fees as heretofore
agreed by the
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Borrower and the Agent and (y) for its own account such other fees as agreed to
between the Borrower and the Agent, when and as due.
(f) All computations of Fees shall be made in accordance with Section
12.07(b).
3.02 VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three
Business Days' prior written notice (or telephonic notice confirmed in writing)
to the Agent at its Notice Office (which notice the Agent shall promptly
transmit to each of the Banks), the Borrower shall have the right, without
premium or penalty, to terminate or partially reduce the Unutilized Total
Revolving Commitment, provided that (x) any such termination shall apply to
proportionately and permanently reduce the Revolving Commitment of each Bank,
(y) no such reduction shall reduce any Non-Defaulting Bank's Revolving
Commitment to an amount that is less than the sum of (A) the outstanding
Revolving Loans of such Bank and (B) such Bank's Adjusted Percentage of
outstanding Swingline Loans and of Letter of Credit Outstandings and (z) any
partial reduction pursuant to this Section 3.02 shall be in the amount of at
least $1,000,000.
3.03 MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. The Total Revolving
Commitment shall terminate on the earlier of (x) the Expiry Date, (y) the
Acquisition Facility Termination Date and (z) the date on which any Change of
Control occurs.
SECTION 4. PAYMENTS.
4.01 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 (other than
Swingline Loans, with respect to which notice may be given prior to 1:00 P.M. on
the date of prepayment) and two Business Days prior to the date of such
prepayment with respect to Eurodollar Loans, which notice shall promptly be
transmitted by the Agent to each of the Banks; (ii) each partial prepayment of
any Borrowing shall be in an aggregate principal amount of at least $500,000
and, if greater in an integral multiple of $100,000, provided that (x) Swingline
Loans may be prepaid in an aggregate amount of at least $250,000 and (y) no
partial prepayment of Eurodollar Loans made pursuant to a Borrowing shall reduce
the aggregate principal amount of the Eurodollar Loans outstanding pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto; (iii) at the time of any prepayment of Eurodollar Loans pursuant to
this Section 4.01 on any date other than the last day of the Interest Period
applicable thereto, the
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Borrower shall pay the amounts required pursuant to Section 1.11; and (iv) each
prepayment in respect of any Loans made pursuant to a Borrowing shall be applied
PRO RATA among such Loans, provided, that at the Borrower's election in
connection with any prepayment of Revolving Loans pursuant to this Section 4.01,
such prepayment shall not be applied to any Revolving Loans of a Defaulting
Bank.
4.02 MANDATORY PREPAYMENTS.
(A) REQUIREMENTS:
(i) If on any date the sum of the aggregate outstanding principal
amount of Revolving Loans made by Non-Defaulting Banks, Swingline Loans and the
Letter of Credit Outstandings exceeds the Adjusted Total Revolving Commitment as
then in effect, the Borrower shall repay on such date the principal of Swingline
Loans, and if no Swingline Loans are or remain outstanding, Revolving Loans of
Non-Defaulting Banks, in an aggregate amount equal to such excess. If, after
giving effect to the repayment of all outstanding Swingline Loans and Revolving
Loans of Non-Defaulting Banks, the aggregate amount of Letter of Credit
Outstandings exceeds the Adjusted Total Revolving Commitment then in effect, the
Borrower shall pay to the Agent an amount in cash and/or Cash Equivalents equal
to such excess and the Agent shall hold such payment as security for the
obligations of the Borrower hereunder pursuant to a cash collateral agreement to
be entered into in form and substance satisfactory to the Agent (which shall
permit certain investments in Cash Equivalents satisfactory to the Agent, until
the proceeds are applied to the secured obligations).
(ii) If on any date the aggregate outstanding principal amount of the
Revolving Loans made by a Defaulting Bank exceeds the Revolving Commitment of
such Defaulting Bank, the Borrower shall repay principal of the Revolving Loans
of such Defaulting Bank in an amount equal to such excess.
(B) APPLICATION:
(a) With respect to each prepayment of Loans required by Section
4.02, the Borrower may designate the Types of Loans which are to be prepaid and
the specific Borrowing(s) pursuant to which made, provided that (i) Eurodollar
Loans may so be designated for prepayment pursuant to this Section 4.02 only on
the last day of an Interest Period applicable thereto unless all Eurodollar
Loans with Interest Periods ending on such date of required prepayment and all
Base Rate Loans 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, such Borrowing shall be immediately converted into Base Rate Loans;
(iii) each prepayment of any Revolving Loans made by Non-Defaulting Banks
pursuant to a Bor-
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rowing shall be applied PRO RATA among such Revolving Loans; and (iv) each
prepayment of any Revolving Loans made by Defaulting Banks pursuant to a
Borrowing shall be applied PRO RATA among such Revolving 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.
4.03 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.
4.04 NET PAYMENTS. (a) All payments made by the Borrower hereunder,
under any Note or any other Credit Document, will be made without setoff,
counterclaim or other defense. Except as provided for in Section 4.04(b), all
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein (but excluding, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income (or any franchise tax) of a
Bank pursuant to the laws of the jurisdiction in which the principal office or
applicable lending office of such Bank is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which the
principal office or applicable lending office of such Bank is located) and all
interest, penalties or similar liabilities with respect thereto (collectively,
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to pay the
full amount of such Taxes and such additional amounts as may be necessary so
that every payment of all amounts due hereunder, under any Note or under any
other Credit Document, after withholding or 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 juris-
-20-
diction 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 Initial Borrowing Date
two original signed copies of Internal Revenue Service Form 4224 or Form 1001
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement, under
any Note and under any other Credit Document and (ii) that, (x) to the extent
legally entitled to do so, with respect to a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 12.04 hereof
(unless the respective Bank was already a Bank hereunder immediately prior to
such assignment or transfer), upon the date of such assignment or transfer to
such Bank, and (y) with respect to any Bank which is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes (including, without limitation, any assignee or transferee),
from time to time, upon the reasonable request by the Borrower or the Agent
after the 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 4.04(a), the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or other
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, fees or other amounts
payable hereunder (without any obligation under Section 4.04(a) to pay the
respective Bank such taxes or any additional amounts with respect thereto) for
the account of any Bank which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for United States federal income tax
purposes and which has not provided to the Borrower such forms required to be
provided to the Borrower by a Bank pursuant to the first sentence of this
Section 4.04(b), provided that if the Borrower shall so deduct or withhold any
such taxes, it shall provide a statement to the Agent and such Bank, setting
forth the amount of such taxes so deducted or withheld, the applicable rate and
any other information or documenta-
-21-
tion which such Bank may reasonably request for assisting such Bank in obtaining
any allowable credits or deductions for the taxes so deducted or withheld in the
jurisdiction or jurisdictions in which such Bank is subject to tax.
Notwithstanding anything to the contrary contained in the preceding sentence,
the Borrower agrees to indemnify each Bank in the manner set forth in Section
4.04(a) in respect of any amounts deducted or withheld by it as described in the
previous sentence as a result of any changes after the Restatement Effective
Date in any applicable law, treaty, governmental rule, regulation, guideline or
order, or in the interpretation thereof, relating to the deducting or
withholding of income or similar Taxes.
SECTION 5. CONDITIONS.
5.01 RESTATEMENT EFFECTIVE DATE. This Agreement shall become
effective on the date (the "Restatement Effective Date") on which all the
following conditions are first satisfied:
(A) EXECUTION OF AGREEMENT. (i) This Agreement shall have been
executed as provided in Section 12.10 and (ii) there shall have been delivered
to the Agent for the account of each Bank the appropriate Revolving Note and, in
the case of BTCo, Swingline Note, in each case, executed by the Borrower, and in
the amount, maturity and as otherwise provided herein.
(B) OFFICER'S CERTIFICATE. On the Restatement Effective Date, the
Agent shall have received a certificate dated such date signed by the President
or any Vice President of the Borrower stating that all of the applicable
conditions set forth in Sections 5.01(G) and (H) and 5.02 exist as of such date.
(C) OPINIONS OF COUNSEL. On the Restatement Effective Date, the
Agent shall have received opinions, addressed to the Agent, and each of the
Banks and dated the Restatement Effective Date, from (i) Winston & ▇▇▇▇▇▇,
counsel to the Borrower, which opinion shall cover the matters contained in
Exhibit C-1 to the AF Credit Agreement, (ii) White & Case, special counsel to
the Agent, which opinion shall cover the matters contained in Exhibit C-2 to the
AF Credit Agreement 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. (a) On the Restatement Effective Date,
the Agent shall have received from the Borrower a certificate, dated the
Restatement Effective Date, signed by the President or any Vice-President of the
Borrower in the form of Exhibit D to the AF Credit Agreement with appropriate
insertions and deletions, together
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with copies of the certificate of formation, the by-laws, or other
organizational documents of the Borrower and the resolutions, or such other
administrative approval, of the Borrower 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.
(b) On the Restatement Effective Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other 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 August 21, 1996 to the Restatement
Effective 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.
(F) LITIGATION. On the Restatement Effective Date, there shall be no
actions, suits or proceedings pending or threatened (a) with respect to this
Agreement or any other Document or the transactions contemplated hereby or
thereby (including the Transaction) 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 or upon the ability of the parties to consummate the Transaction.
(G) APPROVALS. On the Restatement Effective Date, all material
necessary governmental and third party approvals in connection with the
transactions contemplated by the Credit Documents and the other Transaction
Documents and otherwise referred to herein or therein shall have been obtained
and remain in effect, and all applicable waiting periods shall have expired
without any action being taken by any competent authority which restrains or
prevents such transactions or imposes, in the reasonable judgment of the
Required Banks or the Agent, materially adverse conditions upon the consummation
of such transactions. In addition, the Agent shall have received evidence
satisfactory to it that all permits, leases, licenses and consents material to
the operations of OAH and its Subsidiaries and of the Borrower and its
Subsidiaries shall remain in effect after giving effect to the Transaction
and/or shall have been obtained.
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(H) ACQUISITION. On or prior to the Restatement Effective Date,
there shall have been delivered to the Banks true and complete copies of the
Acquisition Documents and all terms of the Acquisition Agreement and of the
other Acquisition Documents shall be reasonably satisfactory to the Agent. Each
of the conditions precedent to the obligation of the Borrower to consummate the
Acquisition shall have been satisfied, or waived, all to the reasonable
satisfaction of the Agent and the Borrower shall have consummated the
Acquisition in accordance with the Acquisition Agreement and all applicable
laws, rules and regulations and all Indebtedness of OAH and its Subsidiaries
pursuant to their existing credit arrangement shall have been repaid in full.
(I) SECURITY DOCUMENTS. (a) On the Restatement Effective Date, the
Borrower shall have duly authorized, executed and delivered the Borrower Pledge
Agreement, and shall have delivered to the Collateral Agent, as pledgee
thereunder, 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.
(b) On the Restatement Effective Date, the Borrower and shall have
duly authorized, executed and delivered the Security Agreement covering all of
the Borrower's present and future Security Agreement Collateral.
(c) On the Restatement Effective Date, each of the Designated UOH
Stockholders shall have each duly authorized, executed and delivered the UOH
Pledge Agreement (which shall terminate on the Guaranty Commencement Date and
the execution and delivery of the Holdings Guaranty and the Holdings Pledge
Agreement) and shall have delivered to the Collateral Agent, as pledgee
thereunder, all of the certificates representing the Pledged Securities referred
to therein, accompanied by executed and undated stock powers, and each of the
UOH Pledge Agreement shall be in full force and effect.
(d) On the Restatement Effective Date, the Agent shall have received
(x) such executed amendments (in form and substance reasonably satisfactory to
the Agent) to the Mortgages created pursuant to the Original Credit Agreement
(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
Restatement Effective Date or within one Business Day thereafter in all places
where the original Mortgages were filed and (y) such endorsements, if any, to
the Mortgage Policies delivered under the Original Credit Agreement with respect
to the Mortgages as the Agent deems appropriate.
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(J) SOLVENCY. On the Restatement Effective Date, the Borrower shall
have delivered, or shall cause to be delivered to the Agent a solvency letter in
the form of Exhibit H to the AF Credit Agreement from the Chief Financial
Officer of the Borrower and acceptable in form and substance to the Agent.
(K) FEES. On the Restatement Effective 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.
(L) ENVIRONMENTAL REPORTS. On or prior to the Restatement Effective
Date, the Agent shall have received environmental reports from Persons
reasonably satisfactory to the Agent covering the properties of OAH and its
Subsidiaries (other than properties that are solely sign locations), which
reports shall be reasonably satisfactory to the Agent.
(M) AF CREDIT AGREEMENT. On the Restatement Effective Date, the
Restatement Effective Date under and as defined in the AF Credit Agreement shall
have occurred (or would be required to occur in the absence of the condition
specified in Section 5.01(m) of the AF Credit Agreement) and the Acquisition
Facility Termination Date shall not have occurred.
(N) ADJUSTED EBITDA. On or prior to the Restatement Effective Date,
the Agent shall have received evidence satisfactory to it that Holdings and its
Subsidiaries plus OAH and its Subsidiaries shall have attained on a combined
basis an Adjusted EBITDA of at least $57 million for the 12 months ended August
31, 1996.
(O) ORIGINAL CREDIT AGREEMENT. On the Restatement Effective Date and
concurrently with any borrowing hereunder, on such date, the Borrower shall have
(i) repaid all Loans outstanding thereunder, (ii) terminated all letters of
credit issued thereunder (other than the Existing Letters of Credit) and (iii)
paid all accrued but unpaid interest, costs (including pursuant to Section 1.11
thereof) and fees under the Original Credit Agreement, whether or not otherwise
then due and payable.
5.02 CREDIT EVENTS. The obligations of the Banks to make each Loan
and of the Letter of Credit Issuers to issue each Letter of Credit is subject,
at the time thereof, to the satisfaction of the following conditions:
(A) NOTICE. The appropriate Notice of Borrowing, other borrowing
notice or Letter of Credit Request shall have been received by the Agent.
(B) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of each
Credit Event and also after giving effect thereto, (i) there shall exist no
Default or Event of
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Default and (ii) all representations and warranties contained herein or in the
other Credit Documents in effect at such time shall be true and correct in all
material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Credit Event, except to
the extent that such representations and warranties expressly relate to an
earlier date.
(C) TESTED BORROWINGS. At the time of incurring any Tested
Borrowing, each of the covenants set forth in Sections 8.11 through 8.15 shall
have been satisfied as of, and no Event of Default under Section 9.08(B) or (C)
shall exist as of, the Measurement Date relating to such Tested Borrowing
determined on a PRO FORMA basis as if such Tested Borrowing occurred on such
Measurement Date, and in the case of a Tested Borrowing financing a Permitted
Acquisition, such Permitted Acquisition was consummated on the first day of the
12-month period ending on such Measurement Date.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to the Agent and each of the Banks
that all of the applicable conditions specified above exist as of that time.
All of the certificates, legal opinions and other documents and papers referred
to in Section 5.01, 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 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Banks to enter into this Agreement and to make the Loans, the
Borrower makes the following representations and warranties to, and agreements
with, the Banks, all of which shall survive the execution and delivery of this
Agreement and the making of the Loans (with all representations and warranties
made as of the Restatement Effective Date to be made giving effect to the
Transaction).
6.01 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.
6.02 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 Transaction Documents to which it is a party. Each Credit Party has duly
executed and delivered each Transaction
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Document to which it is a party and each such Transaction Document constitutes
the legal, valid and binding obligation of such Credit Party enforceable in
accordance with its terms.
6.03 NO VIOLATION. Neither the execution, delivery and performance
by any Credit Party of the Transaction 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.
6.04 LITIGATION. There are no actions, suits or proceedings pending
or, to the Borrower's knowledge, threatened with respect to the Borrower or any
of its Subsidiaries (i) that are likely to have a Material Adverse Effect or
(ii) that could reasonably be expected to have a material adverse effect on the
rights or remedies of the Banks or on the ability of the Borrower to perform its
obligations to them hereunder and under the other Credit Documents.
6.05 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of all
Loans may be used (i) to refinance on the Restatement Effective Date any
outstandings under the Original Credit Agreement and (ii) for the general
corporate and working capital purposes of the Borrower and its Subsidiaries.
(b) Neither the making 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.
6.06 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
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any Transaction Document or (ii) the legality, validity, binding effect or
enforceability of any Credit Document.
6.07 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.
6.08 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.
6.09 TRUE AND COMPLETE DISCLOSURE. All factual information (taken as
a whole) heretofore or contemporaneously furnished by or on behalf of Holdings,
the Borrower or any of its Subsidiaries in writing to the Agent or any Bank for
purposes of or in connection with this Agreement or any transaction contemplated
herein is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of any such Person in writing to any Bank will be,
true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
material fact necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which such
information was provided. The projections and PRO FORMA financial information
contained in such materials are based on good faith estimates and assumptions
believed by such Persons to be reasonable at the time made, it being recognized
by the Banks that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ from the projected results. There is no fact known to
the Borrower which would have a Material Adverse Effect, which has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Banks for use in connection with the transactions contemplated
hereby.
6.10 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as of
the Restatement Effective Date, on a PRO FORMA basis after giving effect to the
Transaction and to all Indebtedness incurred, and to be incurred, and Liens
created, and to be created, in connection therewith, (x) the sum of the assets,
at a fair valuation, of the Borrower and its Subsidiaries, and of Holdings and
is Subsidiaries, taken as a whole will exceed their debts, (y) the Borrower and
its Subsidiaries, and Holdings and its Subsidiaries, taken as a whole will not
have incurred or intended to, or believe that they will, incur debts beyond
their ability to pay such debts as such debts mature and (z) the Borrower and
its Subsidiaries, and Holdings and its Subsidiaries, taken as a whole will not
have unreasonably small capital with which to conduct their business. For
purposes of this Section 6.10, "debt" means any
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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) (i) The consolidated balance sheet of Holdings and of the
Borrower at December 31, 1994 and December 31, 1995 and at June 30, 1996 and the
related consolidated statements of operations and cash flows of Holdings and of
the Borrower for the fiscal years or six months ended as of said dates, which,
in the case of the annual financial statements, have been examined by Price
Waterhouse LLP, independent certified public accountants, who delivered an
unqualified opinion in respect therewith, (ii) the Financial Statements (as
defined in the Acquisition Agreement) of OAH and its Subsidiaries and (iii) the
PRO FORMA consolidated balance sheet of the Borrower as of June 30, 1996, 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 period covered thereby (or, in the case of the PRO FORMA balance
sheet, presents a good faith estimate of the consolidated PRO FORMA financial
condition of the Borrower (after giving effect to the Transaction and the
related financing thereof) at the date thereof) in accordance with GAAP, except
to the extent provided in the notes to said financial statements. All such
financial statements (other than the aforesaid PRO FORMA balance sheets) 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. Except for the incurrence of Indebtedness to finance
the Acquisition, nothing has occurred since December 31, 1995 that has had or
could reasonably be expected to have a Material Adverse Effect.
(c) Except as reflected in the financial statements and the notes
thereto described in Section 6.10(b), there were as of the Effective Date no
liabilities or obligations with respect to Holdings, the Borrower or any of its
Subsidiaries of a nature (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, would be
material to the Borrower and its Subsidiaries, and to Holdings and its
Subsidiaries, taken as a whole, except as incurred in the ordinary course of
business consistent with past practices subsequent to December 31, 1995 and
except for the Indebtedness incurred pursuant to the AF Credit Agreement
(including prior to the amendment and restatement thereof) or to finance the
Acquisition.
6.11 SECURITY INTERESTS. On and after the Restatement Effective Date
(or the date of the execution and delivery thereof, in the case of all
Additional Security Documents), 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
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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.
6.12 REPRESENTATIONS AND WARRANTIES IN TRANSACTION DOCUMENTS. All
representations and warranties set forth in the Transaction Documents were true
and correct in all material respects as of the time such representations and
warranties were made and shall be true and correct in all material respects as
of the Restatement Effective Date as if such representations and warranties were
made on and as of such date, unless stated to relate to a specific earlier date,
in which case such representations and warranties shall be true and correct in
all material respects as of such earlier date.
6.13 CONSUMMATION OF TRANSACTION. As of the Restatement Effective
Date, the Transaction shall have been consummated in accordance with the terms
and conditions of the Transaction Documents and all applicable laws. All
applicable waiting periods with respect thereto have or, prior to the time when
required, will have, expired without, in all such cases, any action being taken
by any competent authority which restrains, prevents, or imposes material
adverse conditions upon the consummation of the Transaction. As of the
Restatement Effective Date, there does not exist any judgment, order, or
injunction prohibiting the consummation of the Transaction, or the making of
Loans or the performance by the Borrower of its obligations under the Documents.
6.14 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.
6.15 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
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account or has applied for an extension of any amortization period within the
meaning of Section 412 of the Code; neither the Borrower, nor any Subsidiary
nor any ERISA Affiliate has incurred any material liability to or on account
of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980
of the Code or expects to incur any liability (including any indirect,
contingent or secondary liability) under any of the foregoing Sections with
respect to any Plan; no proceedings have been instituted to terminate or
appoint a trustee to administer any Plan; no condition exists which presents
a material risk to the Borrower or any Subsidiary or any ERISA Affiliate of
incurring a liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA, the
aggregate liabilities of the Borrower and its Subsidiaries and its ERISA
Affiliates to all Plans which are multiemployer plans (as defined in Section
4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom, as of
the close of the most recent fiscal year of each such Plan ended prior to the
date of the most recent Credit Event, would not exceed $150,000; no lien
imposed under the Code or ERISA on the assets of the Borrower or any
Subsidiary or any ERISA Affiliate exists or is likely to arise on account of
any Plan; and Holdings, the Borrower and its Subsidiaries do not maintain or
contribute to any employee welfare benefit plan (as defined in Section 3(1)
of ERISA) which provides benefits to retired employees (other than as
required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA), except to the extent that all events
described in the preceding clauses of this Section 6.15 and then in existence
would not, in the aggregate, have or be likely to have a Material Adverse
Effect. With respect to Plans that are multiemployer plans (within the
meaning of Section 4001(a)(3) of ERISA) the representations and warranties in
this Section 6.15 are made to the best knowledge of the Borrower.
6.16 SUBSIDIARIES. (a) Annex IV hereto lists each Subsidiary of the
Borrower existing on the Restatement Effective Date. The Borrower owns 100% of
the outstanding capital stock of each such Subsidiary. The Borrower will at all
times own directly 100% of the outstanding capital stock of all of said entities
except to the extent otherwise permitted pursuant to Section 8.02.
(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 AF Credit Agreement, the Senior Notes and the
Discount Notes, (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
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disposition is permitted under this Agreement, and (v) any documents or
instruments governing the terms of any Indebtedness or other obligations secured
by Liens permitted by Section 8.03, provided that such prohibitions or
restrictions apply only to the assets subject to such Liens.
6.17 PATENTS, ETC. The Borrower and each of its Subsidiaries have
obtained all material patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their businesses taken as a whole as
presently conducted and as proposed to be conducted.
6.18 POLLUTION AND OTHER REGULATIONS. (a) Each of Holdings, the
Borrower and its Subsidiaries is in compliance with all Environmental Laws
governing its business for which failure to comply is reasonably likely to have
a Material Adverse Effect, and neither Holdings, the Borrower nor any of its
Subsidiaries is liable for any material penalties, fines or forfeitures for
failure to comply with any of the foregoing in the manner set forth above. All
licenses, permits, registrations or approvals required for the business of the
Borrower and each of its Subsidiaries, as conducted as of the Restatement
Effective Date, under any Environmental Law have been secured and the Borrower
and each of its Subsidiaries is in substantial compliance therewith, except such
licenses, permits, registrations or approvals the failure to secure or to comply
therewith is not likely to have a Material Adverse Effect. Neither Holdings,
the Borrower nor any of its Subsidiaries is in noncompliance with, breach of or
default under any applicable writ, order, judgment, injunction, or decree to
which Holdings, the Borrower or such Subsidiary is a party or which would affect
the ability of the Borrower or such Subsidiary to operate any real property and
no event has occurred and is continuing which, with the passage of time or the
giving of notice or both, would constitute noncompliance, breach of or default
thereunder, except in each such case, such noncompliance, breaches or defaults
as are not likely to, in the aggregate, have a Material Adverse Effect. There
are as of the Restatement Effective Date no Environmental Claims pending or, to
the best knowledge of the Borrower, threatened, which (a) challenge the
validity, term or entitlement of the Borrower or any of its Subsidiaries for any
permit, license, order or registration required for the operation of any
facility under the Environmental Laws which the Borrower or any of its
Subsidiaries operates and (b) wherein an unfavorable decision, ruling or finding
would be reasonably likely to have a Material Adverse Effect. There are no
facts, circumstances, conditions or occurrences concerning Holdings, the
Borrower or any of its 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
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case, such Environmental Claims or restrictions that individually or
in the aggregate are not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated,
used, treated or stored on, or transported to or from, any Real Property of the
Borrower or any of its Subsidiaries or (ii) released on any Real Property, in
each case where such occurrence or event individually or in the aggregate is
reasonably likely to have a Material Adverse Effect.
6.19 PROPERTIES. The Borrower and each of its Subsidiaries have good
and marketable title to all properties owned by them, including all property
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries, and the Financial Statements, referred to in Section 6.10(b), free
and clear of all Liens, other than (i) as referred to in the consolidated
balance sheet, or the Financial Statements, or, in either case, in the notes
thereto or (ii) otherwise permitted by Section 8.03. Annex V contains a true
and complete list of each Real Property owned or leased by the Borrower or any
of its Subsidiaries on the Restatement Effective Date (other than properties
that are purely sign locations) and the type of interest therein held by the
Borrower or the respective Subsidiary. Holdings owns no properties or assets
(other than the Tax Sharing Agreement) other than all of the capital stock of
the Borrower.
6.20 LABOR RELATIONS. Holdings, the Borrower and its Subsidiaries
are not engaged in any unfair labor practice that could reasonably be expected
to have a Material Adverse Effect. There is (i) no unfair labor practice
complaint pending against Holdings, the Borrower or any of its Subsidiaries or
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against any of them or threatened against any
of them, (ii) no strike, labor dispute, slowdown or stoppage pending against
Holdings, the Borrower or any of its Subsidiaries or threatened against any of
them and (iii) no union representation question existing with respect to the
employees of Holdings, the Borrower or any of its Subsidiaries and no union
organizing activities are taking place, except with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate, such as is not reasonably likely to have a Material Adverse Effect.
6.21 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 Effective Date that is in excess of $5,000 for any one issue and is to
remain outstanding after giving effect to the Transaction (all such
Indebtedness, of whatever size, but excluding Indebtedness hereunder and under
the AF Credit Agreement, 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.
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SECTION 7. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees
that on the Restatement Effective Date and thereafter for so long as this
Agreement is in effect and until the Commitments have terminated, no Notes or
Letters of Credit are outstanding and the Loans and Unpaid Drawings, together
with interest, Fees and all other Obligations incurred hereunder, are paid in
full:
7.01 INFORMATION COVENANTS. The Borrower will furnish to each Bank:
(a) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close of
each fiscal year of the Borrower, the consolidated balance sheet of the
Borrower and its Subsidiaries and of Holdings and its Subsidiaries, as at
the end of such fiscal year and the related consolidated statements of
income and retained earnings and of cash flows for such fiscal year, in
each case setting forth comparative consolidated figures for the preceding
fiscal year, and examined by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to the
scope of audit and as to the status of Holdings, the Borrower or any of its
Subsidiaries as a going concern, together with a certificate of such
accounting firm stating that in the course of its regular audit of the
business of Holdings and of the Borrower, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge of any Default or Event of Default which has
occurred and is continuing or, if in the opinion of such accounting firm
such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year, the consolidated balance sheet of
the Borrower and its Subsidiaries and of Holdings and its Subsidiaries, as
at the end of such quarterly period and the related consolidated statements
of income and retained earnings and of cash flows for such quarterly period
and for the elapsed portion of the fiscal year ended with the last day of
such quarterly period, and in each case setting forth comparative
consolidated figures for the related periods in the prior fiscal year, all
of which shall be certified by the chief financial officer or controller of
the Borrower or Holdings, as appropriate, subject to changes resulting from
audit and normal year-end audit adjustments.
(c) MONTHLY REPORTS. As soon as practicable, and in any event within
30 days, after the end of each monthly accounting period of each fiscal
year the consolidated balance sheet of the Borrower and its Subsidiaries
and of Holdings and its Subsidiaries, as at the end of such period, and the
related consolidated statements of income and retained earnings for such
period, setting forth comparative figures for the corresponding period of
the previous year, all of which shall be certified by
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the chief financial officer or controller of the Borrower or Holdings, as
appropriate, subject to changes resulting from audit and normal year-end
audit adjustments.
(d) BUDGETS; ETC. Not more than 60 days after the commencement of
each fiscal year of the Borrower, a budget of the Borrower and its
Subsidiaries in reasonable detail for each of the twelve months of such
fiscal year. Together with each delivery of consolidated financial
statements pursuant to Sections 7.01(a), (b) and (c), a comparison of the
current year to date financial results against the budgets required to be
submitted pursuant to this clause (d) shall be presented.
(e) OFFICER'S CERTIFICATES. (i) At the time of the delivery of the
financial statements provided for in Sections 7.01(a), (b) and (c), a
certificate of the chief financial officer, controller or other Authorized
Officer of the Borrower to the effect that no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying the
nature and extent thereof, which certificate shall set forth the
calculations required to establish (I) the Modified Holdings Leverage Ratio
for the Relevant Determination Date occurring on the last day of such
fiscal year, quarter or month, (II) whether the Borrower and its
Subsidiaries were in compliance with the provisions of Sections 8.11, 8.12,
8.13, 8.14 and 8.15, as applicable, as at the end of such fiscal period and
(III) whether there was any Event of Default under Section 9.08(B) and/or
9.08(C) as at the end of such fiscal period.
(ii) At the time of any incurrence of Consolidated Debt of Holdings
and its Subsidiaries at a time when the Margin Reduction Discount is (or
based on the last officer's certificate delivered pursuant to clause (i)
above will be) greater than zero, a certificate of any of the persons
specified in clause (i) above setting forth the calculations establishing
the Modified Holdings Leverage Ratio after giving effect to the incurrence
of such Consolidated Debt.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any event
within three Business Days after the Borrower obtains knowledge thereof,
notice of (x) the occurrence of any event which constitutes a Default or
Event of Default which notice shall specify the nature thereof, the period
of existence thereof and what action the Borrower proposes to take with
respect thereto and (y) the commencement of or any significant development
in any litigation or governmental proceeding pending against Holdings, the
Borrower or any of its Subsidiaries which is likely to have a Material
Adverse Effect or is likely to have a material adverse effect on the
ability of the Borrower to perform its obligations hereunder or under any
other Credit Document.
(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
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independent accountants in connection with any annual, interim or special
audit made by it of the books of Holdings and/or the Borrower.
(h) ENVIRONMENTAL MATTERS. Promptly upon, and in any event within 20
Business Days after an officer of Holdings, the Borrower or any Subsidiary
obtains knowledge thereof, notice of one or more of the following
environmental matters: (i) any pending or threatened (in writing) material
Environmental Claim against, or for which liability would attach to, the
Borrower or any of its Subsidiaries or any Real Property owned or operated
by the Borrower or any of its Subsidiaries; (ii) any condition or
occurrence on or arising from any Real Property owned or operated by the
Borrower or any of its Subsidiaries that (a) results in material
noncompliance by Holdings, the Borrower or any of its Subsidiaries with any
applicable material Environmental Law or (b) would reasonably be expected
to form the basis of a material Environmental Claim against, or for which
liability would attach to, the Borrower or any of its Subsidiaries or any
such Real Property; (iii) any condition or occurrence on any Real Property
owned or operated by the Borrower or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject to any
material restrictions on the ownership, occupancy, use or transferability
by the Borrower or any of its Subsidiaries of such Real Property under any
Environmental Law; and (iv) the taking of any material removal or remedial
action in response to the actual or alleged presence of any Hazardous
Material on any Real Property owned or operated by the Borrower or any of
its Subsidiaries as required by any Environmental Law or any governmental
or other administrative agency, and all such notices shall describe in
reasonable detail the nature of the claim, investigation, condition,
occurrence or removal or remedial action and the Borrower's or such
Subsidiary's response thereto.
(i) OTHER INFORMATION. Promptly upon transmission thereof, (i)
copies of any filings and registrations with, and reports to, the
Securities and Exchange Commission or any successor thereto (the "SEC") by
Holdings, the Borrower or any of its Subsidiaries and (ii) with reasonable
promptness, such other information or documents (financial or otherwise) as
the Agent on its own behalf or on behalf of the Required Banks may
reasonably request from time to time.
7.02 BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will
cause its Subsidiaries to, permit, upon reasonable notice to the chief financial
officer, controller or any other Authorized Officer of the Borrower officers and
designated representatives of the Agent or the Required Banks to visit and
inspect any of the properties or assets of the Borrower and any of its
Subsidiaries in whomsoever's possession, and to examine the books of account of
Holdings, the Borrower and any of its Subsidiaries and discuss the affairs,
finances and accounts of Holdings, the Borrower and of any of its Subsidiaries
with, and be advised as to the same by, its and their officers and independent
accountants, all at such
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reasonable times and intervals and to such reasonable extent as the Agent or the
Required Banks may desire.
7.03 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 Restatement Effective 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.
7.04 PAYMENT OF TAXES. The Borrower will pay and discharge, and will
cause each Subsidiary to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims which, if unpaid, might become a Lien or charge
upon any properties of Holdings, the Borrower or any of its Subsidiaries,
provided that neither Holdings, the Borrower nor any Subsidiary shall be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves (in the good faith judgment of the management of the Borrower) with
respect thereto in accordance with GAAP.
7.05 CONSOLIDATED CORPORATE FRANCHISES. The Borrower will do, and
will cause each Subsidiary to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its existence, material rights and
authority, provided that any transaction permitted by Section 8.02 will not
constitute a breach of this Section 7.05.
7.06 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
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a material adverse effect on the ability of the Borrower to perform its
obligations under any Credit Document.
7.07 ERISA. As soon as possible and, in any event, within 10 days
after the Borrower or any of its Subsidiaries or ERISA Affiliates knows or has
reason to know of the occurrence of any of the following, the Borrower will
deliver to each of the Banks a certificate of the chief financial officer of the
Borrower setting forth details as to such occurrence and such action, if any,
which the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC,
a Plan participant (other than notices relating to an individual participant's
benefits) or the Plan administrator with respect thereto: that a Reportable
Event has occurred; that an accumulated funding deficiency has been incurred or
an application is reasonably likely to be or has been made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that a
Plan which has an Unfunded Current Liability has been or may be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA; that a
Plan has an Unfunded Current Liability and there is a failure to make a required
contribution, which gives rise to a lien under ERISA or the Code; that
proceedings are reasonably likely to be or have been instituted to terminate a
Plan which has an Unfunded Current Liability; that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent contribution
to a Plan; that the Borrower, any Subsidiary or any ERISA Affiliate will or may
incur any liability (including, any contingent or secondary liability) to or on
account of the termination of or withdrawal from a Plan under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under
Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409, 502(l) or
502(l) of ERISA or that the Borrower or any Subsidiary or Holdings may incur any
material liability pursuant to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA). Upon
request of a Bank, the Borrower will deliver to such Bank a complete copy of the
annual report (Form 5500) of each Plan required to be filed with the Internal
Revenue Service. In addition to any certificates or notices delivered to the
Banks pursuant to the first sentence hereof, copies of any annual reports and
any other material notices received by Holdings, the Borrower or any Subsidiary
with respect to a Plan shall be delivered to the Banks no later than 10 days
after the later of the date such notice has been filed with the Internal Revenue
Service or the PBGC, given to Plan participants (other than notices relating to
an individual participant's benefits) or received by Holdings, the Borrower or
such Subsidiary.
7.08 GOOD REPAIR. The Borrower will, and will cause each of its
Subsidiaries to, ensure that its properties and equipment used or useful in its
business in
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whomsoever's possession they may be, are kept in good repair, working order and
condition, normal wear and tear excepted, and, subject to Section 8.05, that
from time to time there are made in such properties and equipment all needful
and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements thereto, to the extent and in the manner useful or customary
for companies in similar businesses.
7.09 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries' fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries' fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
7.10 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) No later than 30
days following the Guaranty Commencement Date, the Borrower shall deliver to the
Agent a duly authorized and executed counterpart or counterparts of: (i) a
guaranty agreement in form and substance reasonably satisfactory to the Agent
(as modified, supplemented or amended from time to time in accordance with the
terms thereof and hereof, the "Subsidiary Guaranty") executed by each Domestic
Subsidiary (except as otherwise agreed by the Agent) guaranteeing the
Obligations; (ii) a pledge agreement executed by each Subsidiary Guarantor in
form substantially the same as the Borrower Pledge Agreement and otherwise
reasonably satisfactory to the Agent (the "Additional Pledge Agreement"),
accompanied by the delivery thereunder of the certificates representing the
Pledged Securities referred to therein and executed and undated stock powers;
(iii) a security agreement executed by each Subsidiary Guarantor in a form
substantially the same as the Security Agreement and otherwise reasonably
satisfactory to the Agent (the "Additional Security Agreement") covering all of
such Subsidiary Guarantor's present and future Security Agreement Collateral,
together with the filings and reports referred to in Section 5.01(K)(b) (i)
through (iv) of the Original Credit Agreement relating thereto; and (iv) 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 each of the Subsidiary Guarantors (except as otherwise agreed
by the Agent) (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 8.03 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, it being understood that nothing in this
Section 7.10 shall prevent any Domestic Subsidiary from merging with the
Borrower to the extent permitted by Section 8.02.
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(b) The Borrower will, and after the Guaranty Commencement Date, will
cause the Subsidiary Guarantors to, grant to the Collateral Agent security
interests and mortgages (each a "New Mortgage") in such owned Real Property of
the Borrower and the Subsidiary Guarantors acquired (including as a result of
the merger of one or more Subsidiaries with the Borrower) after the Restatement
Effective Date (or in the case of such Subsidiary Guarantors, the date it became
a Subsidiary Guarantor) as may be requested from time to time by the Agent.
Such 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 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.
(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 7.10 has been complied with.
(d) The Borrower agrees that each action required above by this
Section 7.10 shall be completed as soon as possible, but in no event later than
60 days after such action is requested to be taken by the Agent or the Required
Banks, provided that in no event shall the Borrower be required to take any
action, other than using its reasonable commercial efforts without any material
expenditure, to obtain consents from third parties with respect to its
compliance with this Section 7.10.
7.11 CORPORATE SEPARATENESS. The Borrower will take, and will cause
each of its Subsidiaries to take, all such action as is necessary to keep the
operations of the Borrower and its Subsidiaries separate and apart from those of
Holdings, including, without limitation, ensuring that all customary formalities
regarding corporate existence, including holding regular board of directors'
meetings and maintenance of corporate records, are followed. All financial
statements of the Borrower and its Subsidiaries provided to creditors will
clearly evidence the corporate separateness of the Borrower and its Subsidiaries
from Holdings. Finally, neither the Borrower nor any of its Subsidiaries will
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take any action, or conduct its affairs in a manner which is likely to result in
the corporate existence of Holdings on the one hand, and the Borrower and its
Subsidiaries on the other, being ignored, or in the assets and liabilities of
the Borrower or any of its Subsidiaries being substantively consolidated with
those of Holdings in a bankruptcy, reorganization or other insolvency
proceeding. No action expressly provided for in this Agreement, the other
Credit Documents, the AF Credit Agreement, the Senior Notes and/or the Discount
Notes will breach this covenant, and this covenant shall cease to be of any
force and effect once (x) the Discount Notes substantially have been paid in
full and (y) Holdings shall have delivered the Holdings Guaranty and the
Holdings Pledge Agreement.
7.12 COMPLIANCE WITH ENVIRONMENTAL LAWS. (i) The Borrower will
comply, and the Borrower will cause each of its Subsidiaries to comply, with all
Environmental Laws applicable to the ownership, lease or use of all Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (ii) neither the Borrower nor any of its Subsidiaries
will generate, use, treat, store, release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of Hazardous Materials
on any Real Property now or hereafter owned, leased or operated by the Borrower
or any of its Subsidiaries, or transport or permit the transportation of
Hazardous Materials to or from any such Real Property, except to the extent that
the failure to comply with the requirements specified in clause (i) or (ii)
above, either individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect. If required to do so under any applicable
directive or order of any governmental agency, the Borrower agrees to undertake,
and cause each of its Subsidiaries to undertake, any clean up, removal, remedial
or other action necessary to remove and clean up any Hazardous Materials from
any Real Property owned, leased or operated by the Borrower or any of its
Subsidiaries in accordance with, in all material respects, the requirements of
all applicable Environmental Laws and in accordance with, in all material
respects, such orders and directives of all governmental authorities, except to
the extent that the Borrower or such Subsidiary is contesting such order or
directive in good faith and by appropriate proceedings and for which adequate
reserves have been established to the extent required by generally accepted
accounting principles.
SECTION 8. NEGATIVE COVENANTS. The Borrower hereby covenants and
agrees, as of the Effective Date and thereafter for so long as this Agreement is
in effect and until the Commitments have terminated, no Notes or Letters of
Credit are outstanding and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full,
that (it being agreed that no provision of Section 8.02, 8.03, 8.04, 8.06, 8.08,
8.09 or 8.10 shall at any time be defaulted by, or shall be interpreted to
prohibit, any action by the Borrower or any of its Subsidiaries to the extent
(x) such action was not prohibited by the LaSalle Loan Agreement and (y) a
restriction on
-41-
any such action is prohibited by Section 3.12 of the Senior Note Indenture
and/or Section 3.13 of the Discount Note Indenture, in each case as in effect on
the Restatement Effective Date, to the extent the Senior Notes and the Discount
Notes, respectively, are then outstanding or have not been amended pursuant to a
Permitted Exit Amendment):
8.01 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.
8.02 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 (other than, prior to the Guaranty
Commencement Date, ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇) 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 ▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇▇, as the case may be, is the surviving corporation if it is such
other Subsidiary), 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;
(b) capital expenditures to the extent within the limitations set
forth in Section 8.05 hereof;
(c) the investments, acquisitions and transfers or dispositions of
properties permitted pursuant to Section 8.06;
(d) each of the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
such lease does not create a Capitalized Lease Obligation not otherwise
permitted by Section 8.04(d));
(e) licenses or sublicenses by the Borrower and its Subsidiary of
software, customer lists, trademarks and other intellectual property in the
ordinary course of
-42-
business, provided, that such licenses or sublicenses shall not interfere
with the business of the Borrower or any Subsidiary;
(f) other sales or dispositions of assets (I) for cash in an amount
equal to the fair market value thereof as determined by the Borrower and/or
(II) in exchange for other assets permitted to be held under Section 8.01
provided that, in each case, (i) the assets so sold or disposed of,
together with all other assets, previously sold or disposed of pursuant to
this clause (f) after or during the Calculation Period applicable to such
sale or disposition, shall not have generated Adjusted EBITDA of the
Borrower during such Calculation Period (taken as one accounting period)
equal to 15% or more of the aggregate Adjusted EBITDA of the Borrower
during such Calculation Period (taken as one accounting period) and (ii)
the assets so sold or disposed of, together with all other assets
previously sold or disposed of pursuant to this clause (f) after the
Restatement Effective Date, shall not have generated Adjusted EBITDA of the
Borrower during the period (taken as one accounting period) commencing on
the Restatement Effective Date and ending on the last day of the last month
for which financial statements of the Borrower are reasonably available
equal to 25% or more of the aggregate Adjusted EBITDA of the Borrower
during such period (taken as one accounting period), and, provided further,
that (x) 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 and (y) neither
▇▇▇▇▇▇▇ nor ▇▇▇▇▇▇▇▇ may not be sold or disposed of pursuant to this clause
(f);
(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 other than, prior to the Guaranty Commencement
Date, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ may be liquidated into the Borrower; and
(i) Permitted Acquisitions provided that after giving effect thereto
and the related borrowings to finance same there would be no default under
Sections 8.11 through 8.15 or 9.08(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.
8.03 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
-43-
such property or assets (including sales of accounts receivable or notes with
recourse to the Borrower or any of its Subsidiaries) or assign any right to
receive income, or file or permit the filing of any financing statement under
the UCC or any other similar notice of Lien under any similar recording or
notice statute, except:
(a) Liens for taxes not yet due or Liens for taxes being contested in
good faith and by appropriate proceedings for which adequate reserves (in
the good faith judgment of the management of the Borrower) have been
established;
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business, such as carriers', warehousemen's and mechanics' Liens,
statutory landlord's Liens, and other similar Liens arising in the ordinary
course of business, and (x) which do not in the aggregate materially
detract from the value of such property or assets or materially impair the
use thereof in the operation of the business of the Borrower or any
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement or the other
Credit Documents;
(d) (x) Liens on assets of the Borrower and each Subsidiary existing
on the Restatement Effective Date and listed on Part A of Annex VIII
hereto, without giving effect to any subsequent extensions or renewals
thereof, (y) Liens on assets of ▇▇▇▇▇▇▇▇ existing on the Restatement
Effective Date and added to Part B of Annex VIII by the Borrower and the
Agent within 30 days after the Restatement Effective Date so long as such
Liens are deemed immaterial by the Agent and (z) immaterial Liens on assets
of the Borrower and each Subsidiary existing on the Restatement Effective
Date at the locations listed on Part B of Annex VIII;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09
provided, that no cash or property is deposited or delivered to secure any
respective judgment or award (or any appeal bond in respect thereof, except
as permitted by the following clause (f));
(f) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the
ordinary course of business (exclusive of obligations in
-44-
respect of the payment for borrowed money) provided, that the aggregate
amount of deposits at any time pursuant to this clause (f) shall not
exceed $500,000;
(g) Leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any of its
Subsidiaries;
(h) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(i) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(j) Purchase money Liens securing payables arising from the purchase
by the Borrower of any equipment or goods in the normal course of business,
provided that such payables shall not constitute Indebtedness;
(k) Any interest or title of a lessor or any Lien on the interest or
title of a lessor under any lease permitted by this Agreement;
(l) Liens arising pursuant to purchase money mortgages relating to,
or security interests securing Indebtedness representing the purchase price
of, assets acquired by the Borrower, ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇▇ or any
Subsidiary Guarantor after the Restatement Effective Date, provided that
any such Liens attach only to the assets so acquired and that all
Indebtedness secured by Liens created pursuant to this clause (l) shall not
exceed $5,000,000 at any time outstanding;
(m) Liens created pursuant to Capital Leases permitted pursuant to
Section 8.04(d);
(n) Liens on assets of Subsidiaries of the Borrower in favor of the
Borrower;
(o) Liens securing Indebtedness permitted by Section 8.04(i) provided
that such Liens attach only to the assets (or to the assets of the Person
whose stock is being) acquired; and
(p) Liens on assets of the Borrower securing Indebtedness not in
excess of $1,000,000 at any time outstanding.
-45-
8.04 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 AF Credit Agreement;
(b) Indebtedness owing by (i) any Subsidiary to the Borrower or
another Subsidiary and (ii) the Borrower to any Subsidiary;
(c) Indebtedness of the Borrower evidenced by the Senior Notes, in an
aggregate principal amount not to exceed $65,000,000;
(d) Capitalized Lease Obligations of the Borrower, ▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇▇, provided that the aggregate Capitalized Lease Obligations under
all Capital Leases entered into after the Restatement Effective Date shall
not exceed $10,000,000;
(e) Existing Indebtedness, without giving effect to any subsequent
extension, renewal or refinancing thereof;
(f) Permitted Subordinated Debt and the Additional Subordinated Debt;
(g) to the extent same has been assumed by the Borrower, the
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)
$5,000,000 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.
-46-
8.05 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, (y) during the
fiscal year of the Borrower ended December 31, 1997, $12,000,000 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 immediately prior 12-month period.
(b) In the event that the maximum amount which is permitted to be
expended in respect of Consolidated Capital Expenditures during any fiscal year
pursuant to Section 8.05(a) (without giving effect to this clause (b)) is not
fully expended during such fiscal year, the maximum amount which may be expended
during the immediately succeeding fiscal year pursuant to Section 8.05(a) shall
be increased by such unutilized amount provided that such increase shall not
exceed $5,000,000 in any fiscal year.
(c) In addition to the foregoing, the Borrower, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and
any Subsidiary Guarantor may make Consolidated Capital Expenditures in amounts
in excess of those permitted under Sections 8.05(a) and (b) provided that the
amount of such additional Consolidated Capital Expenditures shall not exceed the
sum of (x) the Available ECF Amount and (y) the Available Equity Amount, in each
case as determined at the time of, but immediately prior to, the making thereof.
8.06 INVESTMENTS AND LOANS. The Borrower will not make or permit to
exist any Investments or Loans in or to any other Person or acquire or establish
any Subsidiary, except for Permitted Investments or as permitted by the next
sentence. Notwithstanding anything contained in this Section 8.06 to the
contrary, Borrower may acquire 100% of the Capital Stock of (x) Quantum
Structure & Design, Inc. and (y)] any [other] Person if [, in the case of clause
(y), the following conditions are satisfied: (i) an Event of Default has not
occurred and is continuing under this Agreement and will not occur as a result
of, in connection with or after giving effect to such acquisition; (ii) the
Person being acquired engages exclusively in the business permitted to be
engaged in by Borrower and its Subsidiaries pursuant to Section 8.01; (iii)
title to all of the assets acquired in such acquisition is transferred by
operation of law, assignment, sale or otherwise, to Borrower within 60 days of
the consummation of such acquisition provided that such transfer shall not be
required after the Guaranty Commencement Date if the assets are held by a
Subsidiary Guarantor; and (iv) such acquired assets are expressly made subject
to the Liens created by the Security Documents.
8.07 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
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issue, sell, assign, pledge or otherwise encumber or dispose of, any shares of a
Subsidiary's capital stock or other securities (or warrants, rights or options
to acquire shares or other equity securities) of such Subsidiary, except to the
Borrower (to the extent otherwise permitted hereunder) and except for
dispositions permitted by Section 8.02, (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 8.06 and (z) violate
or breach the provisions of Section 3.11(a) of the Senior Note Indenture as in
effect on the Restatement Effective Date (to the extent such Section is then in
effect).
8.08 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 the Senior Notes, Subordinated Debt (once
issued)[, the ▇▇▇▇▇ Note] or any other Existing Indebtedness provided that
(I) the Borrower may Purchase Senior Notes (w) in an aggregate amount, at
any time, equal to the Holdback Proceeds at such time, (x) in an amount at
the time of any such Purchase equal to the Available ECF Amount at the time
of, but immediately prior to, such Purchase provided that at such time
(i.e., immediately prior to such Purchase) the Holdings Leverage Ratio is
less than 5.00 to 1.00, (y) in an amount at the time of any such Purchase
equal to the Available Equity Amount at the time of, but immediately prior
to, such Purchase and (z) as otherwise consented to by the Required Banks
and (II) the Borrower may pay Dividends to Holdings to permit it to
purchase Discount Notes as provided for in Section 8.09(a);
(b) amend or modify, or permit the amendment or modification of, any
provisions of (x) any Senior Note Documents (except for Permitted Exit
Amendments), (y) any Subordinated Debt Documents and (z) the AF Credit
Agreement; and/or
(c) amend, modify or change in any manner adverse to the interests of
the Banks the Certificate of Incorporation (including, without limitation,
by the filing of any certificate of designation) or By-Laws of the
Borrower, ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ or any agreement entered into by the
Borrower, with respect to its capital stock, or the Acquisition Documents
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, ▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇▇.
-48-
8.09 DIVIDENDS, ETC. (a) The Borrower will not redeem, retire,
purchase or otherwise acquire, directly or indirectly, any Capital Stock of
Borrower or other evidence of ownership interest, or declare or pay dividends
upon any Capital Stock of Borrower or make any distribution of Borrower's
property or assets (any of the foregoing, a "Dividend"), provided that this
Section 8.09 will not prohibit, so long as no Event of Default shall have
occurred and is continuing or would occur as a consequence thereof, (i) the
repurchase, redemption or other acquisition or retirement for value of any
shares of Capital Stock of the Borrower from the estate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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 the
▇▇▇▇▇ 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, (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 warrant plan and (v)
the payment of cash Dividends to Holdings to the extent that the proceeds are
used on the date of receipt to Purchase Discount Notes provided that any such
Dividend will not exceed the Modified Available Amount at the time of, but
immediately prior to, the making of such Dividend.
(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, (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, the AF Credit Agreement, the Senior Note
Documents, the Discount Note Indenture and the Subordinated Debt Documents (once
executed); (ii) applicable law; (iii) customary non-assignment provisions
entered into in the ordinary course of business and consistent with past
practices; (iv) any restriction or encumbrance with respect to a Subsidiary of
the Borrower imposed pursuant to an agreement which has been entered into for
the sale or disposition of all or substantially all of the capital stock or
assets of such Subsidiary, so long as such sale or disposition is permitted
under this Agreement; and (v) Liens permitted under Section 8.03 and any
documents or instruments governing the terms of any Indebtedness or other
obligations secured by any such Liens, provided that such prohibitions or
restrictions apply only to the assets subject to such Liens.
-49-
8.10 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any Subsidiary to, sell, lease, license, transfer, exchange, or
otherwise dispose of any of its properties, assets or services to, or purchase,
lease, or license the use of any property, assets or services from, or transfer
funds to, or enter into any contract, agreement, understanding, loan, advance or
guarantee with, to or for the benefit of, any Affiliate (each of the foregoing,
an "Affiliate Transaction," whether constituting one transaction or a series of
related transactions), unless (a) such Affiliate Transaction is on terms that
are no less favorable to the Borrower or the relevant Subsidiary than those that
would have been obtained in a comparable transaction by the Borrower or such
Subsidiary with an unrelated person and (b) Borrower delivers to the Agent (i)
with respect to any Affiliate Transaction involving aggregate payments in excess
of $250,000, an officers' certificate setting forth a resolution of the Board of
Directors of the Borrower approved by a majority of the members of the Board of
Directors (and a majority of the disinterested members of the Board of
Directors, if any) certifying that such Affiliate Transaction complies with
clause(a) above and (ii) with respect to any Affiliate Transaction involving
aggregate payments in excess of $3.0 million, an opinion as to the fairness,
from a financial point of view, of such Affiliate Transaction to the Borrower or
such Subsidiary issued by an independent investment banking firm of national
standing with total assets in excess of $1.0 billion. The foregoing limitation
does not limit, and shall not apply to, (i) the payment of reasonable annual
compensation to directors or executive officers of the Borrower or any
Subsidiary thereof, (ii) transactions described in Annex IX hereto, provided
that the fees described in Annex IX shall accrue and not be paid at any time
that a Default or an Event of Default specified in Section 9.01 shall occur and
be continuing or (iii) payments by the Borrower to Holdings under the Tax
Sharing Agreement.
8.11 FIXED CHARGE COVERAGE RATIO. The Borrower will not permit the
ratio of (i) Adjusted EBITDA of the Borrower to (ii) Consolidated Fixed Charges
of the Borrower for any 12 month period (taken as one accounting period) ending
on a Measurement Date (or if less the period from the Initial Borrowing Date to
such Measurement Date) to be less than 1.00 to 1.
8.12 MINIMUM ADJUSTED EBITDA. The Borrower will not permit 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 the amount set forth opposite such period [plus (B) the Aggregate Acquired
EBITDA as of such Measurement Date]:
Period Amount
------ -------
Restatement Effective Date through
December 30, 1997 $57,000,000
December 31, 1997 through
December 30, 1998 $58,400,000
-50-
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
8.13 BORROWER LEVERAGE RATIO. The Borrower will not permit the
Borrower Leverage Ratio as of any Measurement Date occurring in a period set
forth below to be more than the ratio set forth opposite such period:
Period Ration
------ ------
Period Ratio Restatement Effective Date through
December 30, 1997 6.00 to 1.0
December 31, 1997 and
thereafter 5.00 to 1.0
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8.14 SENIOR LEVERAGE RATIO. On and after the Guaranty Commencement
Date, the Borrower will not permit the Senior Leverage Ratio as of any
Measurement Date occurring in a period set forth below to be more than the ratio
set forth opposite such period:
PERIOD RATIO
------ -----
Restatement Effective 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
8.15 INTEREST RATIO. On and after the Guaranty Commencement Date,
the Borrower will not permit the ratio of (i) Adjusted EBITDA of the Borrower to
(ii) Consolidated Interest Expense of the Borrower for any twelve month period
(taken as one accounting period) ending on a Measurement Date occurring in a
period set forth below to be less than the ratio set forth opposite such period:
PERIOD RATIO
------ -----
Restatement Effective 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
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01 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
-52-
9.02 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
9.03 COVENANTS. The Borrower shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 7.10, 7.11 or 8, or (b) default in the due performance or observance by
it of any term, covenant or agreement (other than those referred to in Section
9.01, 9.02 or clause (a) of this Section 9.03) contained in this Agreement and
such default shall continue unremedied for a period of at least 30 days after
notice to the defaulting party by the Agent or the Required Banks; or
9.04 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 9.04 unless the principal amount of any one issue of such Indebtedness
exceeds $2,500,000 individually or in the aggregate at any one time; or
9.05 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
-53-
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
9.06 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
9.07 CREDIT DOCUMENTS. Any Credit Document or Guaranty (once
executed) shall cease to be in full force and effect (except as provided for
therein), or shall cease to give the Collateral Agent any Lien encumbering
assets with an aggregate fair market value in excess of $2,500,000 (and, if
encumbering assets with a fair market value of less than $2,500,000, for a
period greater than thirty or more days), or any material rights, powers and
privileges purported to be created thereby in favor of the Collateral Agent or
any Credit Party shall default in any material respect in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any such Security Document or Guaranty or shall disaffirm
or seek to disaffirm any Guaranty; or
9.08 HOLDINGS. (A) Holdings shall after the Restatement Effective
Date [(i) incur any Indebtedness,] (ii) grant or create any Lien on any of its
assets that secures Indebtedness, (iii) modify or amend the Discount Note
Indenture or Discount Notes (except, in each case, for Permitted Exit
Amendments) or (except with the proceeds of equity contributions from Existing
UOH Stockholders) prepay any of the Discount Notes, (iv)
-54-
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 separate 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 segregated its assets from the assets of the Borrower
and its Subsidiaries, except in each case (a) as expressly required by any of
the Shareholders' Agreements, Management Agreements, Tax Sharing Agreements,
subscription agreements with members of management and the Discount Notes, all
as in effect on the Restatement Effective Date, (b) as expressly required by
law, (c) Holdings issuing Capital Stock in any initial or subsequent public
offering to the extent the proceeds thereof are used to repay the Loans as
required by Section 4.02(A)(d) hereof and (d) Holdings Purchasing Discount Notes
(w) in an aggregate amount, at any time, equal to the Holdback Proceeds at such
time, (x) in an amount at the time of any such Purchase equal to the Available
ECF Amount at the time of, but immediately prior to, such Purchase provided that
at such time (i.e., immediately prior to such Purchase) the Holdings Leverage
Ratio is less than 5.00 to 1.00 or (y) in an amount at the time of any such
Purchase equal to the Available Equity Amount at the time of, but immediately
prior to, such Purchase 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; and/or
(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
------ -----
Restatement Effective 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) At any time prior to the Guaranty Commencement Date, the ratio of
(i) Adjusted EBITDA of Holdings to (ii) Consolidated Cash Interest Expense of
Holdings for any 12 month period (taken as one accounting period) ending on a
Measurement Date
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occurring in a period set forth below is less than the ratio set forth opposite
such period:
Period Ratio
------ ------
Restatement Date through
December 30,1997 1.50 to 1.0
December 31, 1997 through
December 30, 19981. 75 to 1.0
December 31, 1998 through
Deccember 30, 1999 1.85 to 1.0
December 31, 1999 through
Dececember 30, 2001 2.00 to 1.0
December 31, 2001 and
thereafter 2.50 to 1.0;
(D) Holdings shall have failed, for more than 15 days following the
Guaranty Commencement Date, to authorize and execute a guaranty agreement (as
modified, amended or supplemented in accordance with the terms thereof or
hereof, the "Holdings Guaranty") in respect of the Obligations hereunder and a
pledge agreement (as modified, amended or supplemented in accordance with the
terms thereof or hereof, the "Holdings Pledge Agreement") pledging all the
capital stock of the Borrower, all in such form as is acceptable to the Agent
and/or to deliver same to the Agent and Collateral Agent, as the case may be,
together with, in pledge under, the Holdings Pledge Agreement, the certificates
representing all the shares of the capital stock of the Borrower, accompanied by
executed and undated stock powers and such opinions of counsel relating thereto
as reasonably requested by the Agent; or
9.09 JUDGMENTS. One or more judgments or decrees shall be entered
against Holdings, the Borrower or any of its Subsidiaries involving a liability
of $2,500,000 or more individually or in the aggregate for all such judgments
and decrees for Holdings, the Borrower and its Subsidiaries (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; or
9.10 AF CREDIT AGREEMENT. An Event of Default under and as defined
in the AF Credit Agreement shall have occurred and be continuing;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Agent shall, upon the written request of the
Required Banks, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Agent or any Bank to
enforce its claims against the Borrower, except as otherwise specifically
provided for in this Agreement (provided that, if an Event of Default specified
in Section 9.05 shall occur with respect to the Borrower, the result which would
-56-
occur upon the giving of written notice by the Agent as specified in clauses (i)
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Commitment terminated, whereupon the Commitment of each
Bank shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
all obligations owing hereunder to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; and/or (iii)
enforce, as Collateral Agent (or direct the Collateral Agent to enforce), any or
all of the Liens and security interests created pursuant to the Security
Documents.
SECTION 10. DEFINITIONS. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acquisition" shall mean the acquisition by the Borrower of 100% of
the outstanding capital stock of ▇▇▇▇▇▇▇▇ pursuant to the Acquisition Documents
provided that after giving effect to the merger contemplated by the Acquisition
Agreement and the additional mergers consummated on the Restatement Effective
Date, ▇▇▇▇▇▇▇▇ shall be a direct wholly-owned subsidiary of the Borrower.
"Acquisition Agreement" shall mean the Agreement and Plan of Merger,
dated August __, 1996, among the Borrower, Universal Acquisition Corp., OAH and
the stockholders listed therein as delivered to the Banks pursuant to Section
5.01(H), as the same may be amended or modified in accordance with the
provisions thereof and hereof.
"Acquisition Documents" shall mean the Acquisition Agreement and all
other documents entered into to effectuate the Acquisition.
"Acquisition Facility Termination Date" shall mean the first date
occurring on or after the AR Termination Date under and as defined in the AF
Credit Agreement on which all Acquisition Loans have been repaid in full.
"Acquisition Loans" shall mean and include the AR Loans and the A Term
Loans as defined in the AF Credit Agreement.
"Additional Mortgages", "Additional Pledge Agreement" and "Additional
Security Agreement" shall each have the meaning provided in Section 7.10.
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"Additional Security Documents" shall mean and include the Additional
Pledge Agreement, Additional Security Agreement, Additional Mortgages, New
Mortgages and the Holdings Pledge Agreement.
"Additional Subordinated Debt" shall mean subordinated debt issued by
the Borrower after it has issued $200,000,000 of Permitted Subordinated Debt,
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 $100 million.]
"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 I to AF Credit Agreement.
"Adjusted Percentage" shall mean (x) at a time when no Bank Default
exists, for each Bank such Bank's Percentage and (y) at a time when a Bank
Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii) for
each Bank that is a Non-Defaulting Bank, the percentage determined by dividing
such Bank's Revolving Commitment at such time by the Adjusted Total Revolving
Commitment at such time, it being understood that all references herein to
Revolving Commitments and the Adjusted Total Revolving Commitment at a time when
the Total Revolving Commitment or Adjusted Total Revolving Commitment, as the
case may be, has been terminated shall be references to the Revolving Loan
Commitments or Adjusted Total Revolving Commitment, as the case may be, in
effect immediately prior to such termination, PROVIDED that (A) no Bank's
Adjusted Percentage shall change upon the occurrence of a Bank Default from that
in effect immediately prior to such Bank Default if, after giving effect to such
Bank Default and any repayment of Revolving Loans and Swingline Loans at such
time pursuant to Section 4.02(A)(a) or otherwise, the sum of (i) the aggregate
outstanding principal amount of Revolving Loans of all Non-Defaulting Banks plus
(ii) the aggregate outstanding principal amount of Swingline Loans plus (iii)
the Letter of Credit Outstandings, exceeds the Adjusted Total Revolving Loan
Commitment; (B) the changes to the Adjusted Percentage that would have become
effective upon the occurrence of a Bank Default but that did not become
effective as a result of the preceding clause (A) shall become effective on the
first date after the occurrence of the relevant Bank Default on which the sum of
(i) the aggregate outstanding principal amount of the Revolving Loans of all
Non-Defaulting Banks plus (ii) the aggregate outstanding principal amount of the
Swingline Loans plus (iii) the Letter of Credit Outstandings is equal to or less
than the Adjusted Total Revolving Commitment; and (C) if (i) a Non-Defaulting
Bank's Adjusted Percentage is changed pursuant to the preceding clause (B) and
(ii) any repayment of such Bank's Revolving Loans, or of Unpaid Drawings or of
Swingline Loans, that were made during the period commencing after the date of
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the relevant Bank Default and ending on the date of such change to its Adjusted
Percentage must be returned to the Borrower as a preferential or similar payment
in any bankruptcy or similar proceeding of the Borrower, then the change to such
Non-Defaulting Bank's Adjusted Percentage effected pursuant to said clause (B)
shall be reduced to that positive change, if any, as would have been made to its
Adjusted Percentage if (x) such repayments had not been made and (y) the maximum
change to its Adjusted Percentage would have resulted in the sum of the
outstanding principal of Revolving Loans made by such Bank plus such Bank's new
Adjusted Percentage of the outstanding principal amount of Swingline Loans and
of Letter of Credit Outstandings equalling such Bank's Revolving Commitment at
such time.
"Adjusted Revolving Commitment" for each Non-Defaulting Bank shall
mean at any time the product of such Bank's Adjusted Percentage and the Adjusted
Total Revolving Commitment.
"Adjusted Total Revolving Commitment" shall mean at any time the Total
Revolving Commitment less the aggregate Revolving Commitments of all Defaulting
Banks.
"AF Bank" shall mean at any time a financial institution that is then
an AR Bank under and as defined in the AF Credit Agreement.
"AF Credit Agreement" shall mean the Amendment and Restatement dated
as of the date hereof to the Acquisition Credit Agreement among the Borrower,
the Banks, LaSalle as Co-Agent and BTCo as Agent providing for the credits
specified therein, as in effect on the Restatement Effective Date hereunder and
as the same may be modified, amended or supplemented in accordance with the
terms thereof to the extent permitted hereunder.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Agent appointed pursuant to
Section 11.09.
-▇▇-
["▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇" 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.]
"Agreement" shall mean this Amendment and Restatement to Revolving
Credit Agreement, as the same may be from time to time further modified, amended
and/or supplemented.
"Applicable Base Rate Margin" shall mean 1.75% less the Margin
Reduction Amount, if any, provided that if the Guaranty Commencement Date has
not occurred prior to March 31, 1997 then the Applicable Base Rate Margin for
all Loans shall increase by .25% on March 31, 1997, which increase shall
continue in effect until such time, if any, as the Guaranty Commencement Date
occurs.
"Applicable Eurodollar Margin" shall mean 2.75% less the Margin
Reduction Discount, if any, provided that if the Guaranty Commencement Date has
not occurred prior to March 31, 1997, then the Applicable Eurodollar Margin for
all Loans shall increase by .25% on March 31, 1997, which increase shall
continue in effect until such time, if any, as the Guaranty Commencement Date
occurs.
"AR Loans" shall mean AR Loans under and as defined in the AF Credit
Agreement.
"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 have the meaning provided in the AF
Credit Agreement.
"Available Equity Amount" shall have the meaning provided in the AF
Credit Agreement.
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of Loans or
to fund its portion of any unreimbursed payments under Section 2.05(c) or (ii) a
Bank having notified the Agent
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and/or the Borrower that it does not intend to comply with the obligations under
Section 1.01 or under Section 2.05(c), in the case of either (i) or (ii) as a
result of the appointment of a receiver or conservator with respect to such Bank
at the direction or request of any regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher, (i) the rate which is
1/2 of 1% in excess of the Federal Funds Effective Rate and (ii) the Prime
Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall mean Universal Outdoor, Inc.
"Borrower Leverage Ratio" shall mean, at any Measurement Date, the
ratio of (x) Consolidated Debt of the Borrower on such date to (y) Adjusted
EBITDA of the Borrower for the 12 month period (taken as one accounting period)
ending on such date.
"Borrower Pledge Agreement" shall mean an Amendment and Restatement to
Pledge Agreement in the form of Exhibit E to the AF Credit Agreement, as in
effect on the Effective Date and as the same may be modified, amended or
supplemented from time to time in accordance with the terms hereof and thereof.
"Borrowing" shall mean the incurrence of (i) Swingline Loans by the
Borrower from BTCo on a given date and (ii) one Type of Revolving Loan by the
Borrower 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.
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"Calculation Period" shall mean, with respect to any sale or
disposition of assets made pursuant to Section 8.02(f), the last 12 month period
for which financial statements of the Borrower are reasonably available.
"Capital Lease" as applied to any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock, whether or not voting, including but not limited to common stock,
preferred stock, convertible debentures, warrants, options or similar rights to
acquire such capital stock, and all agreements, instruments and documents
convertible, in whole or in part, into any one or more or all of the foregoing.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Bank, (y)
any domestic commercial bank of recognized standing having capital and surplus
in excess of $500,000,000 or (z) any bank (or the parent company of such bank)
whose short-term commercial paper rating from Standard & Poor's Corporation
("S&P") is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ 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
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(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.
"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 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 (x) the Common Stock beneficially owned by the Management Investors on
the Restatement Effective Date, less (y) the Common Stock (not exceeding 750,000
shares) sold by Management Investor pursuant to the Proposed Equity Offering,
(iii) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in clause (ii) above, except that a person shall be
deemed to have "beneficial ownership" of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 30% of the total
voting and economic ownership interests of Holdings; PROVIDED, HOWEVER, that the
Permitted Holders "beneficially own" (as defined in clause (ii) above), directly
or indirectly, in the aggregate a lesser percentage of the total voting and
economic ownership interests of Holdings than such other person and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of Holdings, (iv)
during any period of two consecutive years individuals who at the beginning of
such period constituted the Board of Directors of Holdings (together with any
new directors whose election by such Board of Directors or whose nomination for
election by the stockholders of Holdings was approved by either (i) the
Permitted Holders or (ii) a vote of a majority of the directors of Holdings then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors of Holdings then
in office or (v) any "Change of Control" or similar term as defined in (I) prior
to the repayment in full of the Discount Notes or Senior Notes, respectively,
the Discount Note Indenture or the Senior Note Indenture except for any such
Change of Control arising from the Proposed Equity Issuance and/or (II) any
Permitted Subordinated Debt Documents.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
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"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 Commission" shall have the meaning provided in
Section 3.01(a).
"Common Stock" shall mean the common stock of Holdings.
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events all amounts expended or capitalized under Capital
Leases but excluding any amount representing capitalized interest) by the
Borrower and its Subsidiaries during that period that, in conformity with GAAP,
are or are required to be included in the property, plant or equipment reflected
in the consolidated balance sheet of the Borrower and its Subsidiaries, provided
that Consolidated Capital Expenditures shall in any event exclude the purchase
price paid in connection with any Permitted Acquisition (whether or not
allocable to property, plant and equipment).
"Consolidated Cash Interest Expense" of any Person shall mean, for any
period, Consolidated Interest Expense of such Person, but excluding, however,
interest expense not payable in cash and amortization of discount and deferred
issuance and financing costs.
"Consolidated 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)
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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
8.05(c) and (y) paid in cash, (iv) taxes paid or payable in cash and (v)
scheduled payments on the Acquisition Loans and Existing Indebtedness, all as
determined on a consolidated basis for such Person and its Subsidiaries in
accordance with GAAP.
"Consolidated Interest Expense" of any Person shall mean, for any
period, total interest expense (including that attributable to Capital Leases in
accordance with GAAP) of such Person and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of such Person and its
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Agreements.
"Consolidated Net Income" of any Person (a "Designated Person") shall
mean for any period, the net income (or loss) of such Designated Person and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP, provided that there shall
be (A) deducted, in the case of the Borrower, any Dividends paid to Holdings and
(B) excluded (i) the income (or loss) of any Person (other than Subsidiaries of
the Designated Person) in which any other Person (other than the Designated
Person or any of its Subsidiaries) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to the Designated
Person or any of its Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of the Designated Person or is merged into or consolidated with the Designated
Person or any of its Subsidiaries or that Person's assets are acquired by the
Designated Person or any of its Subsidiaries, (iii) the income of any Subsidiary
of the Designated Person to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
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applicable to that Subsidiary, (iv) Transaction Expenses and (v) 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.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intending to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof, provided however, that
the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Notes, the Security
Documents, any documents executed in connection therewith and (once executed)
the Guaranties.
"Credit Event" shall mean and include the making of a Loan or the
issuance of a Letter of Credit.
"Credit Party" shall mean the Borrower and, upon compliance with the
provisions of Section 7.10(a), each Guarantor.
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"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Designated UOH Stockholders" shall mean the Management Investors,
▇▇▇▇▇ Investment Associates V, L.P. and ▇▇▇▇▇ Equity Partners V, L.P.
"Discount Note Indenture" shall mean the Indenture entered into by and
between Holdings and United States Trust Company of New York, as trustee
thereunder, with respect to the Discount Notes as in effect on the Effective
Date and as the same may be modified, amended or supplemented from time to time
in accordance with the terms hereof and thereof.
"Discount Notes" shall mean the 14% Series A and Series B Senior
Secured Discount Notes due 2004 issued by Holdings under the Discount Note
Indenture and as the same may be supplemented, amended or modified from time to
time in accordance with the terms hereof and thereof.
"Dividends" shall have the meaning provided in Section 8.09.
"Domestic Subsidiary" shall mean a Subsidiary of the Borrower that is
organized under the laws of the United States or any state thereof.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demand letters, claims, liens, notices of noncompliance
or violation, investigations (other than internal reports prepared by the
Borrower or any of its Subsidiaries solely in the ordinary course of such
Person's business and not in response to any third party action or request of
any kind) or proceedings relating to any Environmental Law or any permit issued,
or any written approval given, under any such Environmental Law (hereafter,
"Claims"), including, without limitation, (a) any and all Claims by governmental
or regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guide, policy and rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or
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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 9.
"Existing Indebtedness" shall have the meaning provided in Section
6.21.
"Existing Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Expiry Date" shall mean September 30, 2004.
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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 3.01.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"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 each Subsidiary Guarantor and
Holdings upon their execution of a Guaranty.
"Guaranties" shall mean and include the Subsidiary Guaranty and the
Holdings Guaranty.
"Guaranty Commencement Date" shall mean the earlier of (x) the date on
which the Senior Notes and the Discount Notes are repaid in full and (y) the
date on which the covenants contained in the Senior Notes and the Discount Notes
are amended, modified or waived to the satisfaction of (and pursuant to a debt
tender offer and exit consent satisfactory to) the Agent so as to permit the
execution of the Guaranties and the Additional Security Documents.
"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.
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"Holdback Proceeds" shall have the meaning provided in the AF Credit
Agreement.
"Holdings" shall mean Universal Outdoor Holdings, Inc., a Delaware
corporation.
"Holdings Guaranty" shall have the meaning provided in Section
9.08(D).
"Holdings Leverage Ratio" shall mean, at any Measurement Date, the
ratio of (x) Consolidated Debt of Holdings on such date to (y) 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
9.08(D).
"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.
"Initial Borrowing Date" shall mean the date upon which the initial
incurrence of Revolving Loans occurs.
"Interest Period" with respect to any Loan shall mean the interest
period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap agreement,
any interest rate cap agreement, any interest rate collar agreement or other
similar agreement or arrangement designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates.
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"Investment" shall mean, with respect to any Person, all investments
by such Person in other Persons (including Affiliates and Subsidiaries) in the
forms of loans, guarantees, advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Capital Stock or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"▇▇▇▇▇" shall mean ▇▇▇▇▇ & Company, L.P., a Delaware limited
partnership doing business as ▇▇▇▇▇ & Company, Inc.
"▇▇▇▇▇ Designees" shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
"LaSalle" shall mean LaSalle National Bank.
"LaSalle Loan Agreement" shall mean the Amended and Restated Loan and
Security Agreement dated March 22, 1995 between the Borrower and LaSalle
National Bank, as in effect on the Effective Date immediately prior to the
termination thereof.
"Leasehold" of any Person means all of the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean BTCo, LaSalle with respect to the
Existing Letter of Credit and/or any Bank which at the request of the Borrower
and with the consent of the Agent agrees, in such Bank's sole discretion, to
become a Letter of Credit Issuer for purposes of issuing Letters of Credit
pursuant to Section 2.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.03(a).
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"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" means and includes each Revolving Loan and each Swingline Loan.
"Management Agreements" shall have the meaning provided in the
Original Credit Agreement.
"Management Investors" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(c).
"Margin Reduction Discount" shall mean zero, provided that the Margin
Reduction Discount shall be increased to 1/4 of 1%, 1/2 of 1%, 1% or 1-1/2%, as
the case may be, as specified in clauses (i), (ii), (iii) or (iv) below, at any
time after the Restatement Effective Date, when, and for so long as, the ratio
set forth in such clause has been satisfied as at the Relevant Determination
Date:
(i) the Margin Reduction Discount shall be 1/4 of 1% in the event that
at the Relevant Determination Date the Modified Holdings Leverage
Ratio is equal to or greater than 5.0 to 1 but less than 6.0 to 1;
(ii) the Margin Reduction Discount shall be 3/4 of 1% in the event that
as at the Relevant Determination Date the Modified Holdings
Leverage Ratio is equal to or greater than 4.0 to 1 but less than
5.0 to 1;
(iii) the Margin Reduction Discount shall be 1 1/4% in the event that as
at the Relevant Determination Date the Modified Holdings Leverage
Ratio is equal to or greater than 3.0 to 1 but less than 4.0 to 1;
or
(iv) the Margin Reduction Discount shall be 1 3/4% in the event that as
the Relevant Determination Date the Modified Holdings Leverage
Ratio is less than 3.0 to 1.
The Modified Holdings Leverage Ratio shall be determined (x) for the last day of
a fiscal month, quarter or year, by delivery of an officer's certificate of the
Borrower to the Banks pursuant to Section 7.01(e)(i) and (y) for the date of the
incurrence of Consolidated Debt after delivery of the officer's certificate
referred to in clause (x), by delivery of an officer's certificate of the
Borrower to the Banks pursuant to Section 7.01(e)(ii), each of which
certificates shall set forth the calculation of the Modified Holdings Leverage
Ratio. The Margin Reduction Discount so determined shall apply, except as set
forth below, from five
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Business Days after the date on which such officer's certificate is delivered to
the Agent to the earlier of (x) the date on which the next certificate is
delivered to the Agent pursuant to Section 7.01(e)(i) or (ii) and (y) the 30th
day following the end of the fiscal month in which such first certificate was
delivered to the Agent pursuant to Section 7.01(e)(i). Notwithstanding anything
to the contrary contained above, the Margin Reduction Discount shall be zero (x)
if no officer's certificate has been delivered to the Banks pursuant to Section
7.01(e) (i) which sets forth the Modified Holdings Leverage Ratio for the
Relevant Determination Date or the financial statements upon which any such
calculations are based have not been delivered, until such a certificate and/or
financial statements are delivered and (y) at all times when there shall exist a
violation of Section 9.01 or an Event of Default. It is understood and agreed
that the Margin Reduction Discount as provided above shall in no event be
cumulative and only the Margin Reduction Discount applicable under either clause
(i), (ii), (iii) or (iv), if any, contained in this definition shall be
applicable.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on the
business, property, assets, liabilities, operations, condition (financial or
otherwise) or prospects of (x) Holdings and its Subsidiaries taken as a whole,
(y) the Borrower and its Subsidiaries taken as a whole and/or (z) with respect
to any reference to such term in Section 5, OAH and its Subsidiaries taken as a
whole.
"Maximum Swingline Amount" shall mean $5,000,000.
"Measurement Date" shall mean (x) the last day of each fiscal quarter
of the Borrower and (y) the last day of the last month ended prior to the date
of a Tested Borrowing.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans
maintained as Base Rate Loans, $500,000, (ii) for Loans maintained as Eurodollar
Loans, $1,000,000 and (iii) for Swingline Loans, $250,000.
"Modified Available Amount" shall have the meaning provided in the AF
Credit Agreement.
"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 7.01(e)(i)
in respect of the next Relevant Measurement Date.
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"Mortgage" shall have the meaning provided in Section 5.01(I)(d)(i).
"Mortgage Policies" shall have the meaning provided in the Original
Credit Agreement.
"Mortgaged Properties" shall mean the Real Properties subject to the
Mortgages.
"▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ Outdoor Advertising Company, a Delaware
corporation.
"New Mortgage" shall have the meaning provided in Section 7.10.
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Note" shall mean and include each Revolving Note and each Swingline
Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Agent at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or such other office as the Agent may designate to
the Borrower from time to time.
"OAH" shall mean Outdoor Advertising Holdings, Inc., a Delaware
corporation.
"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 Agreement" shall have the meaning referred to in the
first recital to this Agreement.
"Original Effective Date" shall mean the Effective Date as defined in
the Original Credit Agreement.
"Participant" shall have the meaning provided in Section 2.05(a).
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"Payment Office" shall mean the office of the Agent at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or such other office as the Agent may designate to
the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" shall mean at any time for each Bank the percentage
obtained by dividing such Bank's Revolving Commitment by the Total Revolving
Commitment, PROVIDED that if the Total Revolving Commitment has been terminated,
the Percentage of each Bank shall be determined by dividing such Bank's
Revolving Commitment immediately prior to such termination by the Total
Revolving Commitment immediately prior to such termination.
"Permitted Acquisition" shall mean any acquisition (including through
a stock acquisition) of property or assets of a nature or type, or which will be
used in a business, permitted to be held or engaged in by Section 8.01 provided
that (x) the Holdings Leverage Ratio as of the last Measurement Date prior to
the consummation of such acquisition was less than 5.50 to 1.0 or (y) the
aggregate amount expended for all such acquisitions after the Restatement
Effective Date not effected in compliance with clause (x) above or clause (z)
below does not exceed $50,000,000 or (z) such acquisition has been consented to
in writing by the Super-Majority Banks.
"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 Exit Amendments" shall mean the exit amendments referred to
in clause (y) of the definition of Guaranty Commencement Date.
"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 Investments" shall mean (a) Cash and Cash Equivalents, (b)
Investments in ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇▇, (c) Investments in all other
Subsidiaries up to $1,000,000 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
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the time such Person becomes a Subsidiary, engages exclusively in the business
permitted to be engaged in by Borrower and its Subsidiaries pursuant to Section
8.01, (c) 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, (d) 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 (e)
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
owing in the ordinary course of business.
"Permitted Liens" shall mean Liens described in clauses (a), (b) and
(d) of Section 8.03.
"Permitted Subordinated Debt" shall mean up to $200 million of
subordinated debt of the Borrower as contemplated by the "red ▇▇▇▇▇▇▇"
prospectus dated September 25, 1996 relating to subordinated debt of the
Borrower and issued on the terms and conditions described in such prospectus or
otherwise on terms and conditions reasonably satisfactory to the Required Banks.
"Permitted Subordinated Debt Documents" shall mean all indentures,
agreements, notes and other instruments governing or evidencing Permitted
Subordinated Debt, all of which shall be reasonably satisfactory to the Agent.
"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 (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,
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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.
"▇▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇▇ Outdoor Advertising Corp., a Delaware
corporation, and shall include the surviving corporation of a merger between OAH
(as the survivor of the Merger referred to in the Acquisition Agreement) and
▇▇▇▇▇▇▇▇ to be effected on or prior to the Restatement Effective Date.
"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 and the
UOH Pledge Agreement and once executed the Additional Pledge Agreement and the
Holdings 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.
"Purchase" shall mean repay, redeem, purchase, repurchased or
otherwise acquire for value.
"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.
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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.
"Relevant Determination Date" shall mean, at any time, (x) the last
day of the then most recently ended fiscal month, quarter or year of Holdings
with respect to which an officer's certificate has been, or is required to be,
delivered to the Banks pursuant to Section 7.01(e)(i) or (y) if the Margin
Reduction Discount is greater than zero, the last date subsequent to the date
specified in clause (x) on which any Consolidated Debt of Holdings and its
Subsidiaries has been incurred.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Banks" shall mean Non-Defaulting Banks whose Adjusted
Percentages exceed 50%.
"Restatement Effective Date" shall have the meaning provided in
Section 5.01.
"Revolving Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I hereto directly below the
column entitled "Revolving Commitment," as the same may be reduced from time to
time pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to time
as a result of assignments to or from such Bank pursuant to Section 12.04.
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"Revolving Note" has the meaning provided in Section 1.05(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.
"Security Agreement" shall mean an Amendment and Restatement to
Security Agreement in the form of Exhibit F to the AF Credit Agreement, as in
effect
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on the Restatement Effective Date and as the same may be modified, amended or
supplemented from time to time in accordance with the terms hereof
and thereof.
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Documents" shall mean each Pledge Agreement, the Security
Agreement, each Mortgage and, once executed, each Additional Security Document,
if any.
"Senior Leverage Ratio" shall mean, at any Measurement Date, the ratio
of (x) Consolidated Senior Debt of the Borrower on such date to (y) Adjusted
EBITDA of the Borrower for the 12-month period (taken as one accounting period)
ending on such date.
"Senior Note Documents" shall mean and include each of the documents,
instruments (including the Senior Notes) and other agreements entered into by
the Borrower (including, without limitation, the Senior Note Indenture) relating
to the issuance by the Borrower of the Senior Notes, as in effect on the
Restatement Effective Date and as the same may be supplemented, amended or
modified from time to time in accordance with the terms hereof and thereof.
"Senior Note Indenture" shall mean the Indenture entered into by and
between the Borrower and United States Trust Company of New York, as trustee
thereunder, with respect to the Senior Notes as in effect on the Restatement
Effective Date and as the same may be modified, amended or supplemented from
time to time in accordance with the terms hereof and thereof.
"Senior Notes" shall mean the 11% Senior Notes due 2003 issued by the
Borrower under the Senior Note Indenture, as in effect on the Restatement
Effective Date and as the same may be supplemented, amended or modified from
time to time in accordance with the terms thereof and hereof.
"Shareholders' Agreements" shall have the meaning provided in the
Original Credit Agreement.
"▇▇▇▇▇ Note" shall have the meaning provided in Section 8.04(g).
"Stated Amount" of each Letter of Credit shall mean the maximum
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Subordinated Debt" shall mean and include the Permitted Subordinated
Debt and the Additional Subordinated Debt, in each case once issued.
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"Subordinated Debt Documents" shall mean and include the Permitted
Subordinated Debt Documents and the execution versions of all indentures,
agreements, notes and instruments governing or evidencing Additional
Subordinated 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 Subsidiary (x) that executes
and delivers a Subsidiary Guaranty pursuant to Section 7.10(a) and (y) each
Domestic Subsidiary created after the Section 7.10(a) actions are taken that
executes and delivers a counterpart of the Subsidiary Guaranty, provided that at
such time such Subsidiary also takes the other actions that it would have been
required to take under Section 7.10(a) if it were a Subsidiary on the Guaranty
Commencement Date.
"Subsidiary Guaranty" shall have the meaning provided in Section
7.10(a).
"Super-Majority Banks" shall mean the Non-Defaulting Banks which would
constitute the Required Banks if each reference to "50%" in the definition of
Required Banks were to read "66 2/3%."
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Expiry Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(b).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Date" shall mean the earlier of (x) the date which is 90
days after the Restatement Effective Date and (y) the date upon which the Agent
determines in its sole discretion (and notifies the Borrower) that the primary
syndication (and the resulting addition of institutions as Banks pursuant to
Section 12.04) has been completed.
"Taxes" shall have the meaning provided in Section 4.04(a).
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"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.
"Tested Borrowing" shall mean any incurrence of Revolving Loans after
the Restatement Effective Date in which the aggregate amount of Revolving Loans
incurred, when added to the aggregate amount of AR Loans and Revolving Loans
incurred during the immediately preceding 30 day period (to the extent (x)
incurred after the Restatement Effective Date, (y) still outstanding and (z) not
included in establishing an earlier Tested Borrowing), equal or exceed
$1,000,000.
"Total Revolving Commitment" shall mean the sum of the Revolving
Commitments of each of the Banks.
"Transaction" shall mean and include (i) the Acquisition, (ii) the
entering into and borrowing under the AF Credit Agreement and (iii) the entering
into and borrowing under this Agreement.
"Transaction Documents" shall mean the Acquisition Documents, the UOH-
▇▇▇▇▇ Agreements, the Credit Documents and the AF Credit Agreement.
"Transaction Expenses" shall mean all fees and expenses incurred in
connection with, and payable prior to or substantially concurrently with the
closing of, the Transaction and including all fees paid to any of the Banks and
the Agent hereunder, fees paid to ▇▇▇▇▇ or its Affiliates permitted hereunder;
attorney's fees, accountants' fees, placement agents' fees, discounts and
commissions and brokerage, and consultant fees. Transaction Expenses shall
include the amortization of any such fees and expenses that are capitalized and
not classified as an expense on the date incurred.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, I.E., a Base Rate Loan or Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year determined in accordance
with Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets thereof,
determined in accordance with Section 412 of the Code.
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"Unpaid Drawings" shall have the meaning provided in Section 2.04(a).
"Unutilized Revolving Commitment" for any Bank at any time shall mean
the excess of (i) the Revolving Commitment of such Bank over (ii) the sum of (x)
the aggregate outstanding principal amount of Revolving Loans made by such Bank
plus (y) an amount equal to such Bank's Adjusted Percentage of the Letter of
Credit Outstandings at such time.
"Unutilized Total Revolving Commitment" shall mean, at any time, (i)
the Total Revolving Commitment at such time less (ii) the sum of the aggregate
principal amount of all Revolving Loans and Swingline Loans at such time plus
the Letter of Credit Outstandings at such time.
"UOH Pledge Agreement" shall mean a Pledge Agreement in the form of
Exhibit G to the AF Credit Agreement, as in effect on the Effective Date and as
the same may be modified, amended or supplemented from time to time in
accordance with the terms hereof and thereof.
"Working Capital" shall mean the excess of Consolidated Current Assets
over Consolidated Current Liabilities.
"Written" or "in writing" shall mean any form of written communication
or a communication by means of telex, facsimile transmission, telegraph or
cable.
SECTION 11. THE AGENT.
11.01 APPOINTMENT. The Banks hereby designate Bankers Trust Company
as Agent (for purposes of this Section 11, the term "Agent" shall include BTCo
in its capacity as Collateral Agent 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.
11.02 NATURE OF DUTIES. The Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and the
Security
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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.
11.03 LACK OF RELIANCE ON THE AGENT. Independently and without
reliance upon the Agent, each Bank and the holder of each Note, to the extent it
deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of Holdings, the Borrower
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and (ii)
its own appraisal of the creditworthiness of Holdings, the Borrower and its
Subsidiaries and, except as expressly provided in this Agreement, the Agent
shall not have any duty or responsibility, either initially or on a continuing
basis, to provide any Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. The Agent shall not be
responsible to any Bank or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, 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.
11.04 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
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Document in accordance with the instructions of the Required Banks (or, where
appropriate, the Super-Majority Banks).
11.05 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.
11.06 INDEMNIFICATION. To the extent the Agent is not reimbursed and
indemnified by the Borrower, the Banks will reimburse and indemnify the Agent,
in proportion to their respective Loans and Commitments as used in determining
the Required Banks, for and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Agent in performing its respective duties hereunder
or under any other Credit Document, in any way relating to or arising out of
this Agreement or any other Credit Document; provided that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct.
11.07 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," "Letter of Credit Issuer," "Required Banks," "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.
11.08 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.
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11.09 RESIGNATION BY THE AGENT. (a) The Agent may resign from the
performance of all its functions and duties hereunder and/or under the other
Credit Documents at any time by giving 15 Business Days' prior written notice to
the Borrower and the Banks. Such resignation shall take effect upon the
appointment of a successor Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall appoint a
successor Agent hereunder or thereunder who shall be the Co-Agent or such other
commercial bank or trust company as is reasonably acceptable to the Borrower.
(c) If a successor Agent shall not have been so appointed within such
15 Business Day period, the Agent, with the consent of the Borrower, shall then
appoint a successor Agent who shall serve as Agent hereunder or thereunder until
such time, if any, as the Banks appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to clause (b)
or (c) above by the 20th Business Day after the date such notice of resignation
was given by the Agent, the Agent's resignation shall become effective and the
Required Banks shall thereafter perform all the duties of the Agent hereunder
and/or under any other Credit Document until such time, if any, as the Banks
appoint a successor Agent as provided above.
SECTION 12. MISCELLANEOUS.
12.01 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, 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, Co-Agent or a Letter of Credit Issuer), 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
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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).
12.02 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, if an Event of Default then exists, each Bank is hereby authorized
at any time or from time to time, without presentment, demand, protest or other
notice of any kind to the Borrower or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by such Bank (including without limitation by branches and agencies of
such Bank wherever located) to or for the credit or the account of the Borrower
against and on account of the Obligations and liabilities of the Borrower to
such Bank under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations purchased by such
Bank pursuant to Section 12.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Bank shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
12.03 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.
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12.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto, provided that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Banks. Each Bank may at any time grant participations in any of
its rights hereunder or under any of the Notes to another financial institution,
provided that in the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation, except that
the participant shall be entitled to the benefits of Sections 1.10 and 4.04 of
this Agreement to the extent that such Bank would be entitled to such benefits
if the participation had not been entered into or sold, and, provided further
that no Bank shall transfer, grant or assign any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating (it being understood that any waiver of
the application of any prepayment or the method of any application of any
prepayment to, the amortization of the Loans shall not constitute an extension
of the final maturity date), or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating interest
in any Revolving 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 Revolving Commitment, or a mandatory prepayment, shall
not constitute a change in the terms of any Revolving 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 Revolving Loans and Revolving Commitment and its
rights and obligations hereunder to another Bank, and (y) with the consent of
the Agent and, to the extent such consent shall not be unreasonably withheld,
the Borrower, any Bank may assign all or a portion of its outstanding Revolving
Loans and Revolving Commitment 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 Revolving Loans and Revolving Commitment of the assigning Bank
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are so assigned. If any Bank so sells or assigns all or a part of its rights
hereunder or under the Notes, any reference in this Agreement or the Notes to
such assigning Bank shall thereafter refer to such Bank and to the respective
assignee to the extent of their respective interests and the respective assignee
shall have, to the extent of such assignment (unless otherwise provided
therein), the same rights and benefits as it would if it were such assigning
Bank. Each assignment pursuant to this Section 12.04(b) shall be effected by
the assigning Bank and the assignee Bank executing an Assignment Agreement
substantially in the form of Exhibit C (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 (PROVIDED, that in the
event of simultaneous assignments relating to this Agreement and the AF Credit
Agreement, the fees for such assignments shall total $3,500) and (y) to a Bank,
either the assigning or assignee Bank shall pay to Agent a nonrefundable
assignment fee of $2,000 (PROVIDED, that in the event of simultaneous
assignments relating to this Agreement and the AF Credit Agreement, the fees for
such assignments shall total $2,000), and at the time of any assignment pursuant
to this Section 12.04(b), (i) Annex I shall be deemed to be amended to reflect
the Revolving Commitment of the respective assignee (which shall result in a
direct reduction to the Revolving Commitment of the assigning Bank) and of the
other Banks, and (ii) the Borrower will issue new Notes to the respective
assignee and to the assigning Bank in conformity with the requirements of
Section 1.05. Each Bank and the Borrower agree to execute such documents
(including without limitation amendments to this Agreement and the other Credit
Documents) as shall be necessary to effect the foregoing. Nothing in this
clause (b) shall prevent or prohibit any Bank from pledging its Revolving Note
or Revolving Loans to a Federal Reserve Bank in support of borrowings made by
such Bank from such Federal Reserve Bank. Notwithstanding any of the foregoing
provisions of this Section 12.04, no assignment may be made hereunder unless a
concurrent assignment is made by the assigning Bank under the AF Credit
Agreement of a percentage of its Acquisition Loans, A Term Loans (as defined in
the AF Credit Agreement) and Commitments thereunder equal to the percentage of
its Revolving Loans and Revolving Commitment being assigned by it hereunder.
(c) Notwithstanding any other provisions of this Section 12.04, no
transfer or assignment of the interests or obligations of any Bank hereunder or
any grant of participation therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration statement
with the SEC or to qualify the Loans under the "Blue Sky" laws of any State.
(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
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of or interests in Indebtedness held by such Bank shall at all times be within
its exclusive control.
12.05 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.
12.06 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
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 12.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
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12.07 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
Section 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
6.10(b) and (y) that if at any time the computations determining compliance with
Section 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.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) This Agreement and the other Credit Documents and the rights
and obligations of the parties hereunder and thereunder shall be construed in
accordance with and be governed by the law of the state of New York. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, the Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Borrower further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower located outside New York City and by hand delivery to the Borrower
located within New York City, at its address for notices pursuant to Section
12.03, such service to become effective 30 days after such mailing. The
Borrower hereby irrevocably designates appoints and empowers CT Corporation
System, with offices on the date hereof located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, 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 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.
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(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.
12.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Agent.
12.10 EXECUTION. This Agreement shall be deemed executed by all
parties when the Borrower and each of the Banks shall have signed a copy hereof
(whether the same or different copies) and shall have delivered the same to the
Agent at the Payment Office of the Agent or, in the case of the Banks, shall
have given to the Agent telephonic (confirmed in writing), written telex or
facsimile transmission notice (actually received) at such office that the same
has been signed and mailed to it.
12.11 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12 AMENDMENT OR WAIVER. Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Required Banks, provided that no such
change, waiver, discharge or termination shall, without the consent of each Bank
(other than a Defaulting Bank) affected thereby, (i) extend the Expiry 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 Revolving 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 Revolving
Commitment shall not constitute a change in the terms of any Revolving
Commitment of any Bank), (ii) release or permit the release of all or
substantially all of the Collateral except as expressly provided in the Credit
Documents, (iii) amend, modify or waive any provision of this Section 12.12,
(iv) reduce the percentage specified in, or otherwise modify, the definition of
Required Banks or (v) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement provided further that no
such change, waiver, discharge or termination shall without the consent of the
Super-Majority Banks change directly or indirectly the definition of Permitted
Acquisition or Super-Majority Banks. No provision of Section 11 may be
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amended without the consent of the Agent and to the extent any such amendment
would affect the Co-Agent solely in its capacity as such, the Co-Agent, no
provision of Section 2 may be amended without the consent of the Letter of
Credit Issuer affected thereby and no provision of Section 1.01(b) or (c) or any
other provision applicable to Swingline Loans may be amended without the consent
of BTCo.
12.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 2.06, 4.04, 11.06 or 12.01 shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 DOMICILE OF LOANS. Each Bank may transfer and carry its Loans
at, to or for the account of any branch office, subsidiary or affiliate of such
Bank, provided that the Borrower shall not be responsible for costs arising
under Section 1.10, 2.06 or 4.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.12) to the extent not otherwise applicable to
such Bank prior to such transfer.
12.15 CONFIDENTIALITY. Subject to Section 12.04, the Banks shall
hold all non-public information obtained pursuant to the requirements of this
Agreement which has been identified as such by the Borrower in accordance with
its customary procedure for handling confidential information of this nature and
in accordance with safe and sound banking practices and in any event may make
disclosure reasonably required by any BONA FIDE transferee or participant in
connection with the contemplated transfer of any Loans or participation therein
(so long as such transferee or participant agrees to abide by the provisions of
this Section 12.15) or as required or requested by any governmental agency or
representative thereof or pursuant to legal process, provided that, unless
specifically prohibited by applicable law or court order, each Bank shall notify
the Borrower of any request by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Bank by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information, and provided
further that in no event shall any Bank be obligated or required to return any
materials furnished by the Borrower or any Subsidiary.
12.16 SPECIAL AMENDMENTS. The parties hereto agree that, upon the
occur-rence of the Guaranty Commencement Date and the execution and delivery of
the Holdings Guaranty and the Holdings Pledge Agreement, the AF Credit Agreement
will be modified with the consent of the Borrower, the Required Banks under and
as defined in the AF Credit Agreement and the Required Banks hereunder to (x)
incorporate therein the Total Revolving Commitment, (y) incorporate therein any
representation, covenant or event of default contained herein and not contained
therein and (z) otherwise make such changes as appropriate to reflect the
incorporation of the Total Revolving Commitment therein (e.g., to the definition
of Required Banks therein to reflect same) and to eliminate the restrictions
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imposed on the Borrower and its Subsidiaries by the Senior Notes and/or Discount
Notes and upon such amendment this Agreement will terminate.
* * *
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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
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ 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:
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LA SALLE NATIONAL BANK,
Individually and as Co-Agent
By:
------------------------------------
Name:
Title:
-▇▇-
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:
------------------------------------
Name:
Title:
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By:
------------------------------------
Name:
Title:
UNION BANK
By:
--------------------------------
Name:
Title:
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ANNEX I
COMMITMENTS
Revolving
Bank Commitment
---- -----------
Bankers Trust Company
La Salle National Bank
------------
Total: $12,500,000
------------
------------
ANNEX II
BANK ADDRESSES
Bankers Trust Company ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Tel. No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
La Salle National Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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