CONSOLIDATION AND AMENDMENT
CONSOLIDATION AND AMENDMENT (this "Agreement"), dated as of October 31,
1996, among Universal Outdoor, Inc., an Illinois corporation, and the lending
institutions party to the Restated Credit Agreements referred to below
immediately before giving effect to this agreement (the "Existing Banks")
and each of the lenders listed on Schedule I hereto that executes a counterpart
of this Agreement (the "New Banks"). All capitalized terms used herein and not
otherwise defined shall have the respective meanings provided such terms in
the Consolidated Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrower, the Existing Banks and LaSalle National Bank,
as Co-Agent, and Bankers Trust Company, as Agent, are parties to a
Restatement and Amendment dated as of October 8, 1996 to Acquisition Credit
Agreement dated as of March 29, 1996 (as amended, modified or supplemented to
the date hereof, the "Restated Acquisition Credit Agreement");
WHEREAS, the Borrower, the Existing Banks, LaSalle National Bank, as
Co-Agent, and Bankers Trust Company, as Agent, are parties to a Restatement
and Amendment dated as of October 8, 1996 to Revolving Credit Agreement dated
as of March 29, 1996 (as amended, modified or supplemented to the date
hereof, the "Restated Revolving Credit Agreement" and together with the
Restated Acquisition Credit Agreement, the "Restated Credit Agreements"); and
WHEREAS, the parties hereto desire to consolidate the Total Revolving
Commitment established under the Restated Revolving Credit Agreement into the
Restated Acquisition Credit Agreement, to otherwise amend the Restated
Acquisition Credit Agreement as contemplated by Section 12.16 thereof and to
include the New Banks as Banks thereunder;
NOW THEREFORE, it is agreed:
1. On the Consolidation Date (as defined below), the Restated
Acquisition Credit Agreement shall be restated in its entirety to read as set
forth as
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Schedule II to this Agreement, such restatement to (x) incorporate therein
the Total Revolving Commitment heretofore provided for under the Restated
Revolving Credit Agreement and (y) effect the other amendments contemplated
by Section 12.16 thereof. Upon such restatement and consolidation, the
Restated Acquisition Credit Agreement shall be renamed, and shall be
hereinafter referred to herein as, the "Consolidated Credit Agreement."
2. On the Consolidation Date, the Restated Revolving Credit
Agreement shall terminate.
3. The Existing Banks hereby sell and assign to the New Banks
without recourse and without representation or warranty (other than as
expressly provided herein), and the New Banks hereby purchase and assume from
the Existing Banks such interests in and to the respective Existing Banks'
rights and obligations under the Consolidated Credit Agreement with respect
to all periods on or after the Consolidation Date so that after giving effect
thereto each Existing Bank and each New Bank (collectively, the "Banks")
shall have the AR Commitment, if any, and Revolving Commitment, if any, set
forth opposite its name on Annex I to the Consolidated Credit Agreement
attached hereto as Schedule II.
4. Each Existing Bank (i) represents and warrants that it is the
legal and beneficial owner of the interests being sold and assigned by it
hereunder and that such interests are free and clear of any adverse claim, it
is not aware of the existence of an Event of Default and it is not in breach
of any funding obligation under the Consolidated Credit Agreement as of the
date hereof; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Consolidated Credit Agreement or the other
Credit Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Consolidated Credit Agreement or the
other Credit Documents or any other instrument or document furnished pursuant
thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Holdings, the
Borrower or any of its Subsidiaries or the performance or observance by the
Credit Parties of any of their obligations under the Credit Agreement or the
other Credit Documents to or any other instrument or document furnished
pursuant thereto.
5. Each of the New Banks (i) confirms that it has received a copy of
the Consolidated Credit Agreement and the other Credit Documents, together
with copies of the financial statements referred to therein and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Amendment; (ii) agrees that it will,
independently and without reliance
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upon the Agent or any other Bank and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Consolidated Credit
Agreement; (iii) confirms that it is an eligible transferee under
Section 12.04(b) of the Consolidated Credit Agreement; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Consolidated Credit Agreement and the other Credit
Documents as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations arising on or
after the Consolidation Date which by the terms of the Consolidated Credit
Agreement are required to be performed by it as a Bank and (vi) agrees that it
will promptly submit all applicable tax forms required by Section 12.04(b).
6. Each of the Banks hereby agrees that all amounts accrued with
respect to the Revolving Commitment, the AR Commitment and the Loans of each
Existing Bank and to each Existing Bank's participation in Letters of Credit
prior to the Consolidation Date shall be for the account of the respective
Existing Banks and that all such amounts accrued on and after the
Consolidation Date shall be for the account of all the Banks to the extent of
their respective Revolving Commitments, AR Commitments, Loans (if any) and/or
participations in Letters of Credit.
7. As of the Consolidation Date, each of the New Banks shall become
a "Bank" under, and for all purposes of, the Consolidated Credit Agreement
and the other Credit Documents.
8. If for any reason, any lender listed on Schedule I hereto shall
not have signed a counterpart hereof and delivered the same to the Agent at
its Notice Office on or prior to 5:00 p.m. (New York time) on the
Consolidation Date, then (x) Annex I to the Consolidated Credit Agreement
shall be modified to delete any such lender, with such lender's share being
reallocated back to the Existing Banks on the same basis as their respective
interests are being sold pursuant to Section 3 above and (y) the signature
pages of this Agreement shall be deemed revised to delete such lender's name
therefrom.
9. In order to induce the Banks to enter into this Agreement, the
Borrower hereby represents and warrants that (x) no Default or Event of
Default exists on the Consolidation Date, after giving effect to this
Agreement, and (y) all of the representations and warranties contained in the
Credit Documents shall be true and correct in all material respects on the
Consolidation Date after giving effect to this Agreement, with the same
effect as though such representations and warranties had been made on and as
of the Consolidation Date (it being understood that any
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representation or warranty made as of a specific date shall be true and
correct in all material respects as of such specific date).
10. Each of the parties hereto agree that the Borrower Pledge
Agreement and the Security Agreement shall be amended and restated as of the
Consolidation Date to read as set forth in Exhibit C and Exhibit E,
respectively, to the Consolidated Credit Agreement attached hereto as
Schedule II.
11. This Agreement is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Restated
Credit Agreements or any other Credit Document.
12. This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Agent.
13. This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the laws of
the State of New York.
14. This Agreement shall become effective as of the date (the
"Consolidation Date") when the following conditions have been met to the
satisfaction of the Agent:
(i) Each of the Borrower, each Existing Bank and (except as provided
in Section 8 above) each New Bank shall have duly executed a copy hereof
(whether the same or different copies) and shall have delivered (including
by way of facsimile transmission) the same to the Agent at its Notice
Office.
(ii) There shall have been delivered to the Agent for the account of
each Bank the appropriate AR Note and 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 in the Consolidated Credit
Agreement.
(iii) The Agent shall have received an opinion, addressed to the
Agent, and each of the Banks and dated the Consolidation Date, from
Winston & Xxxxxx, counsel to Holdings and the Borrower, which opinion shall
cover such matters relating to the Agreement as reasonably requested by,
and shall be reasonably satisfactory to, the Agent; and
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(iv) (a) Holdings shall have duly authorized, executed and delivered
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 to the extent not previously
delivered to the Collateral Agent, accompanied by executed and undated stock
powers, and such Pledge Agreement shall be in full force and effect.
(b) Holdings shall have duly authorized, executed and delivered the
Holdings Guaranty and the Holdings Guaranty shall be in full force and
effect.
-6-
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.
UNIVERSAL OUTDOOR, INC.
By /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Title:
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ Xxxx Xxxxx
----------------------------------------
Title: Vice President
LA SALLE NATIONAL BANK,
Individually and as a Co-Agent
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Title: Senior Vice President
BANK OF AMERICA ILLINOIS
By /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------
Title: Senior Vice President
FIRST NATIONAL BANK OF BOSTON
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxx Xxxxx
----------------------------------------
Title: Vice President
THE BANK OF NEW YORK
By /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Title: Vice President
BANQUE PARIBAS
By /s/ Xxxxx X. Xxxxxx
----------------------------------------
Title: Group Vice President
BANQUE PARIBAS
By /s/ Phillippe Vuarchex
----------------------------------------
Title: Vice President
CREDIT LYONNAIS
By /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Title: Senior Vice President
THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ Xxxx Xxxxxxx
----------------------------------------
Title: Vice President
FLEET BANK, N.A.
By /s/ Xxxxx Xxxxxxxx
----------------------------------------
Title: Vice President
XXXXXX FINANCIAL, INC.
By /s/ Xxxxx X. Xxxx
----------------------------------------
Title: Senior Vice President
STATE STREET BANK AND TRUST
COMPANY
By /s/ Xxxx X. Xxxxx
----------------------------------------
Title: Vice President
SUN TRUST BANK
By /s/ Xxxxxx X. Reuve
----------------------------------------
Title: Vice President
XXX XXXXXX CAPITAL PRIME RATE
INCOME FUND
By /s/ Xxxxx X. Good
----------------------------------------
Title: Vice President
SCHEDULE I
NEW BANKS
Bank of America Illinois
Union Bank of California, N.A.
The Bank of New York
Banque Paribas
Credit Lyonnais
The First National Bank of Chicago
Fleet Bank, X.X.
Xxxxxx Financial, Inc.
State Street Bank and Trust Company
Sun Trust Bank
Xxx Xxxxxx American Capital Prime Rate Income Trust
SCHEDULE II
-----------
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CONSOLIDATED
CREDIT AGREEMENT
among
UNIVERSAL OUTDOOR, INC.
VARIOUS LENDING INSTITUTIONS,
LA SALLE NATIONAL BANK,
AS CO-AGENT
and
BANKERS TRUST COMPANY,
AS AGENT
____________________________________
Dated as of October 31, 1996
____________________________________
$225,000,000
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . . . 1
1.01 Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Borrowing Amounts, etc. . . . . . . . . . . . . . . . . . 3
1.03 Notice of Borrowing, etc. . . . . . . . . . . . . . . . . . . . . 3
1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . 4
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . 6
1.08 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.09 Interest Periods. . . . . . . . . . . . . . . . . . . . . . . . . 7
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . . . 9
1.11 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.12 Change of Lending Office. . . . . . . . . . . . . . . . . . . . 11
1.13 Replacement of Banks. . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2. Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . 12
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 12
2.02 Minimum Stated Amount . . . . . . . . . . . . . . . . . . . . . . 13
2.03 Letter of Credit Requests; Notices of Issuance. . . . . . . . . . 13
2.04 Agreement to Repay Letter of Credit Drawings. . . . . . . . . . . 13
2.05 Letter of Credit Participations . . . . . . . . . . . . . . . . . 14
2.06 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3. Fees; Commitments. . . . . . . . . . . . . . . . . . . . . . . . 17
3.01 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.02 Voluntary Reduction of Commitments. . . . . . . . . . . . . . . . 18
3.03 Mandatory Adjustments of Commitments, etc.. . . . . . . . . . . . 19
SECTION 4. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . 19
4.02 Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . 20
4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . . . 23
(i)
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4.04 Net Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 25
5.01 Conditions Precedent to All 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. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.04 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.05 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . 27
6.06 Governmental Approvals. . . . . . . . . . . . . . . . . . . . . . 27
6.07 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 27
6.08 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 27
6.09 True and Complete Disclosure. . . . . . . . . . . . . . . . . . . 27
6.10 Financial Condition; Financial Statements . . . . . . . . . . . . 28
6.11 Security Interests. . . . . . . . . . . . . . . . . . . . . . . . 29
6.12 Representations and Warranties in Transaction Documents . . . . . 29
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. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.18 Pollution and Other Regulations . . . . . . . . . . . . . . . . . 31
6.19 Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.20 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.21 Existing Indebtedness . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . 33
7.01 Information Covenants . . . . . . . . . . . . . . . . . . . . . . 33
7.02 Books, Records and Inspections. . . . . . . . . . . . . . . . . . 36
7.03 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.04 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 36
7.05 Consolidated Corporate Franchises . . . . . . . . . . . . . . . . 37
7.06 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . . . 37
7.07 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.08 Good Repair . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.09 End of Fiscal Years; Fiscal Quarters. . . . . . . . . . . . . . . 38
7.10 Additional Security; Further Assurances . . . . . . . . . . . . . 38
7.11 Corporate Separateness. . . . . . . . . . . . . . . . . . . . . . 39
7.12 Compliance with Environmental Laws. . . . . . . . . . . . . . . . 40
(ii)
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SECTION 8. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . 40
8.01 Changes in Business . . . . . . . . . . . . . . . . . . . . . . . 40
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc. . . . . . 41
8.03 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.04 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8.05 Capital Expenditures. . . . . . . . . . . . . . . . . . . . . . . 45
8.06 Investments and Loans . . . . . . . . . . . . . . . . . . . . . . 46
8.07 Subsidiaries; etc.. . . . . . . . . . . . . . . . . . . . . . . . 46
8.08 Prepayments of Indebtedness, etc. . . . . . . . . . . . . . . . . 46
8.09 Dividends, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 47
8.10 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . 48
8.11 Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . . . 48
8.12 Minimum Adjusted EBITDA . . . . . . . . . . . . . . . . . . . . . 49
8.13 Senior Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 49
9.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . . . 49
9.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.04 Default Under Other Agreements. . . . . . . . . . . . . . . . . . 50
9.05 Bankruptcy, etc.. . . . . . . . . . . . . . . . . . . . . . . . . 50
9.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.07 Credit Documents. . . . . . . . . . . . . . . . . . . . . . . . . 51
9.08 Holdings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 11. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.01 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . 81
11.03 Lack of Reliance on the Agent. . . . . . . . . . . . . . . . . . 81
11.04 Certain Rights of the Agent. . . . . . . . . . . . . . . . . . . 81
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 . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.01 Payment of Expenses, etc.. . . . . . . . . . . . . . . . . . . . 83
(iii)
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12.02 Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . . . 84
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. . . . . . . . . . . . . . . . . . . . . . . 89
12.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
12.14 Domicile of Loans. . . . . . . . . . . . . . . . . . . . . . . . 90
12.15 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 90
ANNEX I -- Commitments
ANNEX II -- Bank Addresses
ANNEX III -- Government Approvals
ANNEX IV -- Subsidiaries
ANNEX V -- Properties
ANNEX VI -- Existing Indebtedness
ANNEX VII -- Insurance Policies
ANNEX VIII -- Existing Liens
ANNEX IX -- Management Fees
EXHIBIT A-1 -- Form of Notice of Borrowing
EXHIBIT A-2 -- Form of Letter of Credit Request
EXHIBIT B-1 -- Form of AR Note
EXHIBIT B-2 -- Form of Revolving Note
EXHIBIT B-3 -- Form of Swingline Note
EXHIBIT C -- Form of Borrower Pledge Agreement
EXHIBIT D -- Form of Holdings Pledge Agreement
EXHIBIT E -- Form of Security Agreement
EXHIBIT F -- Form of Holdings Guaranty
EXHIBIT G -- Adjusted EBITDA
EXHIBIT H -- Form of Assignment Agreement
(iv)
CONSOLIDATED CREDIT AGREEMENT dated as of October 31, 1996, among
UNIVERSAL OUTDOOR, INC., an Illinois corporation, the lending institutions
listed from time to time on Annex I hereto (each a "Bank" and, collectively,
the "Banks"), LA SALLE NATIONAL BANK, as Co-Agent and BANKERS TRUST COMPANY,
as agent (the "Agent"). Unless otherwise defined herein, all capitalized
terms used herein and defined in Section 10 are used herein as so defined.
W I T N E S S E T H:
-------------------
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Banks are willing to make available to the Borrower the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.011 COMMITMENT. (A) Subject to and upon the terms and conditions
herein set forth, each Bank severally agrees to make or continue loans
(together with the Swingline Loans referred to below, each a "Loan" and,
collectively, the "Loans") to the Borrower, which Loans shall be drawn or
continued, as the case may be, to the extent such Bank has a commitment under
such Facility, under the AR Facility and the Revolving Facility, as set forth
below:
(a) Loans under the AR Facility (each an "AR Loan" and, collectively,
the "AR Loans") (i) may be made at any time and from time to time on and
after the Consolidation Date and prior to the AR Termination Date, (ii)
except as hereinafter provided, may, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans, provided that all AR Loans made as part of the same
Borrowing shall, unless otherwise specifically provided herein, consist of
Loans of the same Type, (iii) may be repaid and, prior to the AR
Termination Date, be reborrowed in accordance with the provisions hereof
and (iv) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which, when combined with the aggregate
outstanding principal amount of all other AR Loans of such Bank, equals the
AR Commitment, if any, of such Bank at such time.
(b) Loans under the Revolving Facility (each a "Revolving Loan" and,
collectively, the "Revolving Loans") (i) may be made at any time and from
time to time on and after the Consolidation Date and prior to the Expiry
Date, (ii) except as hereinafter provided, may, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided that all Revolving Loans made as part
of the same Borrowing shall, unless otherwise specifically provided
herein, consist of Loans of the same Type, (iii) may be repaid and be
reborrowed in accordance with the provisions hereof and (iv) shall not
exceed for any Bank at any time outstanding that aggregate principal
amount which, when combined with the aggregate outstanding principal amount
of all other Revolving Loans of such Bank and with such Bank's Adjusted
RC Percentage of the sum of (x) the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (y) the outstanding principal amount of
Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time, equals (1) if such Bank is a
Non-Defaulting Bank, the Adjusted Revolving Commitment of such Bank at
such time and (2) if such Bank is a Defaulting Bank, the Revolving
Commitment of such Bank at such time.
(B) (a) Subject to and upon the terms and conditions herein set
forth, BTCo in its individual capacity agrees to make at any time and from
time to time on or after the Consolidation Date and prior to the Swingline
Expiry Date, a loan or loans to the Borrower (each a "Swingline Loan," and,
collectively, the "Swingline Loans"), which Swingline Loans (i) shall be made
and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in
accordance with the provisions hereof, (iii) shall not exceed in aggregate
principal amount at any time outstanding, when combined with the aggregate
principal amount of all Revolving Loans made by Non-Defaulting Banks then
outstanding and the Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Swingline Loans) at such time, an
amount equal to the Adjusted Total Revolving Commitment then in effect and
(iv) shall not exceed in aggregate principal amount at any time outstanding
the Maximum Swingline Amount. BTCo will not make a Swingline Loan after it
has received written notice from the Required Banks that one or more of the
applicable conditions to Credit Events specified in Section 5.01 are not then
satisfied.
(b) On any Business Day, BTCo may, in its sole discretion, give
notice to the Banks that its outstanding Swingline Loans shall be funded with
a Borrowing of Revolving Loans (PROVIDED that each such notice shall be
deemed to have been automatically 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
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case a Borrowing of Revolving Loans constituting Base Rate Loans (each such
Borrowing, a "Mandatory Borrowing") shall be made on the immediately
succeeding Business Day by all Banks PRO RATA based on each Bank's Adjusted
RC Percentage, and the proceeds thereof shall be applied directly to repay
BTCo for such outstanding Swingline Loans. Each Bank hereby irrevocably
agrees to make Base Rate Loans upon one Business Day's notice pursuant to
each Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the date specified in writing by BTCo
notwithstanding (i) that the amount of the Mandatory Borrowing may not comply
with the Minimum Borrowing Amount otherwise required hereunder, (ii) that any
conditions specified in Section 5 may not be then satisfied, (iii) that a
Default or an Event of Default has occurred and is continuing, (iv) the date
of such Mandatory Borrowing and (v) any reduction in the Total Revolving
Commitment or the Adjusted Total Revolving Commitment after any such
Swingline Loans were made. In the event that any Mandatory Borrowing cannot
for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code in respect of the Borrower), each Bank (other than BTCo)
hereby agrees that it shall forthwith purchase from BTCo (without recourse or
warranty) such assignment of the outstanding Swingline Loans as shall be
necessary to cause the Banks to share in such Swingline Loans ratably based
upon their respective Adjusted RC Percentages, provided that all interest
payable on the Swingline Loans shall be for the account of BTCo until the
date the respective assignment is purchased and, to the extent attributable
to the purchased assignment, shall be payable to the Bank purchasing same
from and after such date of purchase.
1.012 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal
amount of each Borrowing shall not be less than the Minimum Borrowing Amount.
More than one Borrowing may be incurred on any day, provided that at no time
shall there be outstanding more than seven Borrowings of Eurodollar Loans
hereunder.
1.013 NOTICE OF BORROWING, ETC. (a) Whenever the Borrower
desires to incur AR Loans or Revolving Loans, it shall give the Agent at its
Notice Office, prior to 11:00 A.M. (New York time), at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Eurodollar Loans and at least one Business
Day's prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Base Rate Loans to be made hereunder. Each
such notice (each a "Notice of Borrowing") shall be in the form of Exhibit
A-1 and shall be irrevocable and shall specify (i) the Facility pursuant to
which each Borrowing is being made, (ii) the aggregate principal amount of
the Loans to be made pursuant to each Borrowing, (iii) the date of Borrowing
(which shall be a Business Day) and (iv) whether any respective Borrowing
shall consist of Base Rate Loans or Eurodollar Loans and, if Eurodollar
Loans, the Interest Period to be initially applicable thereto. The Agent
shall promptly give each Bank written notice (or telephonic notice promptly
confirmed in writing)
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of each proposed Borrowing, of such Bank's proportionate share thereof and of
the other matters covered by the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give BTCo, prior to 11:00 A.M. (New York
time) on the day such Swingline Loan is to be made, written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Loan to be
made hereunder. Each such notice shall be irrevocable and shall specify in
each case (x) the date of such Borrowing (which shall be a Business Day) and
(y) the aggregate principal amount of the Swingline Loan to be made pursuant
to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified
in Section 1.01(B)(b), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of Mandatory Borrowings as
set forth in such Section.
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Agent may prior to receipt of written confirmation act without liability upon
the basis of such telephonic notice, believed by the Agent in good faith to
be from an Authorized Officer of the Borrower. In each such case, the
Borrower hereby waives the right to dispute the Agent's record of the terms
of such telephonic notice.
1.014 DISBURSEMENT OF FUNDS. (a) No later than 1:00 P.M. (New
York time) on the date specified in a Notice of Borrowing, each Bank with a
Commitment under the respective Facility will make available its PRO RATA
share of each Borrowing requested to be made on such date in the manner
provided below, provided that Swingline Loans shall be made available by BTCo
no later than 2:00 P.M. (New York time) on the date requested. All such
amounts shall be made available to the Agent in U.S. dollars and immediately
available funds at the Payment Office and the Agent promptly will make
available to the Borrower by depositing to its account at the Payment Office
the aggregate of the amounts so made available in the type of funds received.
Unless the Agent shall have been notified by any Bank prior to the date of
Borrowing that such Bank does not intend to make available to the Agent its
portion of the Borrowing or Borrowings to be made on such date, the Agent may
assume that such Bank has made such amount available to the Agent on such
date of Borrowing, and the Agent, in reliance upon such assumption, may (in
its sole discretion and without any obligation to do so) make available to
the Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Agent by such Bank and the Agent has made
available same to the Borrower, the Agent shall be entitled to recover such
corresponding amount from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Agent's demand therefor, the Agent
shall promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Agent. The Agent shall also be entitled to
recover on demand from
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such Bank or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was
made available by the Agent to the Borrower to the date such corresponding
amount is recovered by the Agent, at a rate per annum equal to (x) if paid by
such Bank, the overnight Federal Funds Effective Rate or (y) if paid by the
Borrower, the then applicable rate of interest, calculated in accordance with
Section 1.08, for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights
which the Borrower may have against any Bank as a result of any default by
such Bank hereunder.
1.015 NOTES. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made to it by each Bank shall be evidenced (i)
if AR Loans, by a promissory note substantially in the form of Exhibit B-1
with blanks appropriately completed in conformity herewith (each an "AR Note"
and, collectively, the "AR Notes"), (ii) if Revolving Loans, by a promissory
note substantially in the form of Exhibit B-2 with blanks appropriately
completed in conformity herewith (each a "Revolving Note" and, collectively,
the "Revolving Notes") and (iii) if Swingline Loans, by a promissory note
substantially in the form of Exhibit B-3 with blanks appropriately completed
in conformity herewith (the "Swingline Note").
(b) The AR Note issued to each Bank with an AR Commitment shall
(i) be executed by the Borrower, (ii) be payable to the order of such Bank
and be dated the Consolidation Date, (iii) be in a stated principal amount
equal to the AR Commitment of such Bank and be payable in the principal
amount of the AR Loans evidenced thereby, (iv) mature on the AR Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to mandatory repayment as provided in
Section 4.02 and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.
(c) The Revolving Note issued to each Bank shall (i) be executed
by the Borrower, (ii) be payable to the order of such Bank and be dated the
Consolidation Date, (iii) be in a stated principal amount equal to the
Revolving Commitment of such Bank and be payable in the principal amount of
the Revolving Loans evidenced thereby, (iv) mature on the Expiry Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to mandatory repayment as provided in
Section 4.02 and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.
(d) The Swingline Note issued to BTCo shall (i) be
executed by the Borrower, (ii) be payable to the order of BTCo
and be dated the Consolidation Date, (iii) be in a stated
principal amount equal to the Maximum Swingline Amount and be
payable
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in the principal amount of Swingline Loans evidenced thereby, (iv) mature on
the Swingline Expiry Date, (v) bear interest as provided in Section 1.08 in
respect of the Base Rate Loans evidenced thereby and (vi) be entitled to the
benefits of this Agreement and the other Credit Documents.
(e) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect the Borrower's obligations in respect of such
Loans.
1.016 CONVERSIONS. The Borrower shall have the option to convert
on any Business Day all or a portion at least equal to the applicable Minimum
Borrowing Amount of the outstanding principal amount of the Loans owing
pursuant to a single Facility into a Borrowing or Borrowings pursuant to such
Facility of another Type of Loan (with Swingline Loans at all times to be
maintained as Base Rate Loans), provided that (i) except as otherwise
provided in Section 1.10(b), Eurodollar Loans may be converted into Base Rate
Loans only on the last day of an Interest Period applicable thereto and no
partial conversion of a Borrowing of Eurodollar Loans shall reduce the
outstanding principal amount of the Eurodollar Loans made pursuant to such
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii)
Base Rate Loans may not be converted into Eurodollar Loans if any violation
of Section 9.01 or any Event of Default is then in existence to the extent
that the Agent or the Required Banks have determined that any such conversion
at such time would be disadvantageous to the Banks and (iii) Borrowings of
Eurodollar Loans resulting from this Section 1.06 shall be limited in number
as provided in Section 1.02. Each such conversion shall be effected by the
Borrower giving the Agent at its Notice Office, prior to 11:00 A.M. (New York
time), at least three Business Days' (or two Business Days', in the case of a
conversion into Base Rate Loans) prior written notice (or telephonic notice
promptly confirmed in writing) (each a "Notice of Conversion") specifying the
Loans to be so converted, the Type of Loans to be converted into and, if to
be converted into a Borrowing of Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Agent shall give each Bank prompt notice
of any such proposed conversion affecting any of its Loans.
1.017 PRO RATA BORROWINGS. All AR Loans and all Revolving Loans
shall be made by the Banks PRO RATA on the basis of their respective Adjusted
AR Percentages and Adjusted RC Percentages, as the case may be. It is
understood that no Bank shall be responsible for any default by any other
Bank in its obligation to make Loans hereunder and that each Bank shall be
obligated to make the Loans provided to be made by it hereunder, regardless
of the failure of any other Bank to fulfill its commitments hereunder.
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1.08 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 Base Rate Loan, quarterly in arrears on the
last Business Day of each February, May, August and November, (ii) in respect
of each Eurodollar Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period of six months, on the date
occurring three months after the first day of such Interest Period and (iii)
in respect of each Loan, on any prepayment or conversion (other than the
prepayment and conversion of Loans that are Base Rate Loans) (on the amount
prepaid or converted), at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Agent, upon determining the interest rate for any
Borrowing of Eurodollar Loans for any Interest Period, shall promptly notify
the Borrower and the Banks thereof.
1.09 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,
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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;
(iv) no Interest Period shall extend beyond (x) in the case of AR
Loans, the AR Maturity Date and (y) in the case of Revolving Loans, the
Expiry Date;
(v) no Interest Period with respect to any Borrowing of AR Loans may
be elected that would extend beyond any date upon which a Scheduled
Repayment is required to be made if, after giving effect to the selection
of such Interest Period, the aggregate principal amount of AR Loans
maintained as Eurodollar Loans with Interest Periods ending after such date
would exceed the aggregate principal amount of AR Loans permitted to be
outstanding after such Scheduled Repayment; and
(vi) no Interest Period may be elected at any time when a violation
of Section 9.01 or an Event of Default is then in existence if the Agent
or the Required Banks have determined that such an election at such time
would be disadvantageous to the Banks.
(b) If upon the expiration of any Interest Period, the Borrower
has failed to (or may not) elect a new Interest Period to be applicable to
the respective Borrowing of Eurodollar Loans as provided above, the Borrower
shall be deemed to have elected to convert such Borrowing into a Borrowing of
Base Rate Loans effective as of the expiration date of such current Interest
Period.
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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 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)
-9-
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 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.
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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 Sections 1.10(b) and 1.13.
(b) Notwithstanding anything in this Agreement to the contrary, to
the extent any notice required by Section 1.10, 2.06 or 4.04 is given by any
Bank more than 180 days after such Bank obtained, or reasonably should have
obtained, knowledge of the occurrence of the event giving rise to the
additional costs of the type described in such Section, such Bank shall not
be entitled to compensation under Section 1.10, 2.06 or 4.04 for any amounts
incurred or accruing prior to the giving of such notice to the Borrower.
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii)
or (iii), 1.10(c), 2.06 or 4.04 with respect to such Bank, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office for any
Loans affected by such event, provided that such designation is made on such
terms that such Bank and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section. Nothing in this
Section 1.12 shall affect or postpone any of the obligations of the Borrower
or the right of any Bank provided in Section 1.10, 2.06 or 4.04.
1.13 REPLACEMENT OF BANKS. (x) Upon the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c), 2.06 or Section 4.04 with respect to any Bank which results in such
Bank charging to the Borrower increased costs in excess of those being
generally charged by the other Banks, (y) if a Bank becomes a Defaulting Bank
and/or (z) in the case of a refusal by a Bank to consent to a proposed
change, waiver, discharge or termination with respect to this Agreement which
has been approved by the Required Banks or Super Majority Banks, as the case
may be, as provided in Section 12.12, the Borrower shall have the right, if
no Default or Event of Default then
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exists, to replace such Bank (the "Replaced Bank") with one or more other
transferee or transferees who shall be acceptable to the Agent and none of
whom shall constitute a Defaulting Bank at the time of such replacement
(collectively, the "Replacement Bank") reasonably acceptable to the Agent,
provided that (i) at the time of any replacement pursuant to this Section
1.13, the Replacement Bank shall enter into one or more Assignment Agreements
pursuant to Section 12.04(b) (and with all fees payable pursuant to said
Section 12.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire all of the Commitments and outstanding Loans
of the Replaced Bank and, in connection therewith, shall pay to the Replaced
Bank in respect thereof an amount equal to the sum of (A) an amount equal to
the principal of, and all accrued interest on, all outstanding Loans of the
Replaced Bank and (B) an amount equal to all accrued, but theretofore unpaid,
Fees owing to the Replaced Bank pursuant to Section 3.01 and (ii) all
obligations of the Borrower owing to the Replaced Bank (other than those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid) shall be paid in
full to such Replaced Bank concurrently with such replacement. Upon the
execution of the respective Assignment Agreement, the payment of amounts
referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Bank, delivery to the Replacement Bank of the appropriate Note or
Notes executed by the Borrower, the Replacement Bank shall become a Bank
hereunder and the Replaced Bank shall cease to constitute a Bank hereunder,
except with respect to indemnification provisions applicable to the Replaced
Bank under this Agreement, which shall survive as to such Replaced Bank.
SECTION 2. LETTERS OF CREDIT.
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 Restatement
Effective Date and prior to the Expiry Date to issue, for the account of the
Borrower and in support of such standby obligations of the Borrower that are
acceptable to the Agent (each such letter of credit a "Letter of Credit" and,
collectively, the "Letters of Credit"), and subject to and upon the terms and
conditions herein set forth the Letter of Credit Issuer agrees to issue from
time to time, irrevocable letters of credit denominated in U.S. dollars in
such form as may be approved by the Letter of Credit Issuer and the Agent.
Letters of Credit shall include the Existing Letters of Credit, which shall
be deemed issued, for purposes of Sections 2.05(a), 3.01(b) and 3.01(c), on
the 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
-12-
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.
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
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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.
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 RC Percentage, in
such Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the Borrower under this Agreement with
respect thereto (although the Letter of Credit Fee shall be payable directly
to the Agent for the account of the Banks as provided in Section 3.01(b) and
the Participants shall have no right to receive any portion of any Facing
Fees) and any security therefor or guaranty pertaining thereto. Upon any
change in the Revolving Commitments or Adjusted RC Percentages of the Banks
pursuant to Section 12.04(b) or upon a Bank Default, it is hereby agreed
that, with respect to all outstanding Letters of Credit and Unpaid Drawings,
there shall be an automatic adjustment to the participations pursuant to this
Section 2.05 to reflect the new Adjusted RC Percentages of the assigning and
assignee Bank or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the
Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be
delivered under such Letter of Credit have been delivered and that they
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by the Letter of Credit
Issuer under or in connection with any Letter of Credit if taken or omitted
in the absence of gross
-14-
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 RC Percentage of such payment in U.S. dollars and in same day funds;
PROVIDED, HOWEVER, that no Participant shall be obligated to pay to the Agent
its Adjusted RC Percentage of such unreimbursed amount for any wrongful
payment made by the Letter of Credit Issuer under a Letter of Credit as a
result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer. If the Agent so
notifies any Participant required to fund an Unpaid Drawing under a Letter of
Credit prior to 11:00 A.M. (New York time) on any Business Day, such
Participant shall make available to the Agent for the account of the Letter
of Credit Issuer such Participant's Adjusted RC Percentage of the amount of
such payment on such Business Day in same day funds. If and to the extent
such Participant shall not have so made its Adjusted RC Percentage of the
amount of such Unpaid Drawing available to the Agent for the account of the
Letter of Credit Issuer, such Participant agrees to pay to the Agent for the
account of the Letter of Credit Issuer, forthwith on demand such amount,
together with interest thereon, for each day from such date until the date
such amount is paid to the Agent for the account of the Letter of Credit
Issuer at the overnight Federal Funds Effective Rate. The failure of any
Participant to make available to the Agent for the account of the Letter of
Credit Issuer its Adjusted RC Percentage of any Unpaid Drawing under any
Letter of Credit shall not relieve any other Participant of its obligation
hereunder to make available to the Agent for the account of the Letter of
Credit Issuer its Adjusted RC Percentage of any payment under any Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to the
Agent for the account of the Letter of Credit Issuer such other Participant's
Adjusted RC Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Agent has received for the account
of the Letter of Credit Issuer any payments from the Participants pursuant to
clause (c) above, the Letter of Credit Issuer shall pay to the Agent and the
Agent shall promptly pay to each Participant which has paid its Adjusted RC
Percentage thereof, in U.S. dollars and in same day funds, an amount equal to
such Participant's Adjusted RC Percentage of the principal amount thereof and
interest thereon accruing at the overnight Federal Funds Effective Rate after
the purchase of the respective participations.
-15-
(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);
(iii) any draft, certificate or other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified
by the Borrower, the Participants will reimburse and indemnify the Letter of
Credit Issuer, in proportion to their respective Adjusted RC Percentages, for
and against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever
kind or nature which may be imposed on, asserted against or incurred by the
Letter of Credit Issuer in performing its respective duties in any way
relating to or arising out of its issuance of Letters of Credit; PROVIDED
that no Participants shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Letter of Credit Issuer's gross
negligence or willful misconduct.
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
-16-
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),
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 ("AR Commitment Commission") for the account of each
Non-Defaulting Bank with an AR Commitment for the period from and including
the Restatement Effective Date to, but not including, the AR Termination
Date, or, if earlier, the date upon which the Total AR Commitment has been
terminated, computed at a rate for each day equal to 1/2 of 1% per annum on
such Bank's unutilized AR Commitment on such day. Such AR Commitment
Commission shall be due and payable in arrears on the last Business Day of
each February, May, August and November and on the AR Termination Date.
(b) The Borrower agrees to pay to the Agent a commitment
commission ("RC Commitment Commission") for the account of each
Non-Defaulting Bank with a Revolving Commitment for the period from and
including the 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
-17-
of 1% per annum on such Bank's Unutilized Revolving Commitment on such day.
Such RC Commitment Commission shall be due and payable in arrears on the last
Business Day of each February, May, August and November and on the Expiry
Date, or, if earlier, the date upon which the Total Revolving Commitment is
terminated.
(c) The Borrower agrees to pay to the Agent for the account of
each Non-Defaulting Bank with a Revolving Commitment PRO RATA on the basis of
their respective Adjusted RC Percentages, a fee in respect of each Letter of
Credit (the "Letter of Credit Fee") computed for each day at the rate equal
to the Applicable Eurodollar Margin then in effect on the Stated Amount of
such Letter of Credit on such day. Accrued Letter of Credit Fees shall be
due and payable quarterly in arrears on the last Business Day of each
February, May, August and November of each year and on the date upon which
the Total Revolving Commitment is terminated.
(d) The Borrower agrees to pay directly to the Letter of Credit
Issuer a fee in respect of each Letter of Credit (the "Facing Fee") computed
for each day at the rate of 1/4 of 1% per annum on the Stated Amount of such
Letter of Credit on such day provided that 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.
(e) The Borrower agrees to pay directly to the Letter of Credit
Issuer upon each issuance of, payment under, and/or amendment of, a Letter of
Credit such amount as shall at the time of such issuance, payment or
amendment be the administrative charge which the Letter of Credit Issuer is
customarily charging for issuances of, payments under or amendments of,
letters of credit issued by it.
(f) The Borrower shall pay to the Agent for its own account such
other fees as agreed to between the Borrower and the Agent, when and as due.
(g) All computations of Fees shall be made in accordance with
Section 12.07(b).
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 AR Commitment and/or the Unutilized Total Revolving Commitment,
provided that (w) any such termination shall apply to proportionately and
permanently reduce the AR Commitment and/or Revolving Commitment, as the case
may be, of each Bank, (x) no such reduction shall reduce any Non-Defaulting
Bank's AR Commitment to
-18-
an amount that is less than the outstanding AR Loans of such Bank, (y) no
such reduction shall reduce any Non-Defaulting Bank's Revolving Commitment to
an amount that is less than the sum of (A) the outstanding Revolving Loans of
such Bank and (B) such Bank's Adjusted RC Percentage of outstanding Swingline
Loans and of Letter of Credit Outstandings and (z) any partial reduction
pursuant to this Section 3.02 of either the Total AR Commitment or the Total
Revolving Commitment shall be in the amount of at least $1,000,000.
3.03 MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total AR
Commitment shall terminate on the earlier of (x) the AR Termination Date and
(y) the date on which any Change of Control occurs.
(b) The Total Revolving Commitment shall terminate on the earlier
of (x) the Expiry Date and (y) the date on which any Change of Control occurs.
(c) The Total AR Commitment shall be reduced, at the time that any
required mandatory repayment of AR Loans would be made prior to the AR
Termination Date pursuant to Section 4.02(A)(c), (e) or (f) if AR Loans were
then outstanding, in the amount of such required repayment (determined as if
an unlimited amount of AR Loans were then outstanding).
(d) Each partial reduction of the Total AR Commitment pursuant to
this Section 3.03 shall apply proportionately to the AR Commitment, if any,
of each Bank.
SECTION 4. PAYMENTS.
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, whether such Loans
are AR Loans, Revolving Loans or Swingline Loans, the amount of such
prepayment and (in the case of Eurodollar Loans) the specific Borrowing(s)
pursuant to which made, which notice shall be given by the Borrower at least
one Business Day prior to the date of such prepayment with respect to Base
Rate Loans (except that any such notice with respect to Swingline Loans may
be given prior to 1:00 P.M. (New York time) on the date of prepayment) and
two Business Days prior to the date of such prepayment with respect to
Eurodollar Loans, which notice shall promptly be transmitted by the Agent to
each of the Banks; (ii) each partial prepayment of any Borrowing shall be in
an aggregate principal amount of at least $500,000 and, if greater, in an
integral multiple of $100,000, provided that (x) Swingline Loans may be
prepaid in an aggregate amount of at least $250,000 and (y) no partial
prepayment of Eurodollar Loans made pursuant to a Borrowing shall reduce the
aggregate principal amount of the Eurodollar Loans outstanding
-19-
pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount applicable thereto; (iii) at the time of any prepayment of Eurodollar
Loans pursuant to this Section 4.01 on any date other than the last day of
the Interest Period applicable thereto, the Borrower shall pay the amounts
required pursuant to Section 1.11; (iv) each prepayment in respect of any
Loans made pursuant to a Borrowing shall be applied PRO RATA among such
Loans, provided, that at the Borrower's election in connection with any
prepayment pursuant to this Section 4.01 of (x) AR Loans prior to the AR
Termination Date or (y) Revolving Loans, such prepayment shall not be applied
to any AR Loans or Revolving Loans, as the case may be, of a Defaulting Bank;
and (v) each prepayment made after the AR Termination Date of AR Loans
pursuant to this Section 4.01 shall reduce the remaining Scheduled Repayments
on a PRO RATA basis (based upon the then remaining principal amount of each
such Scheduled Repayment).
4.02 MANDATORY PREPAYMENTS.
(A) REQUIREMENTS:
(a) (i) If on any date prior to the AR Termination Date the
aggregate outstanding principal amount of AR Loans made by Non-Defaulting
Banks exceeds the Adjusted Total AR Commitment as then in effect, the
Borrower shall repay on such date the principal of AR Loans of
Non-Defaulting Banks in an aggregate amount equal to such excess.
(ii) If on any date prior to the AR Termination Date the aggregate
outstanding principal amount of the AR Loans made by a Defaulting Bank
exceeds the AR Commitment of such Defaulting Bank, the Borrower shall repay
principal of the AR Loans of such Defaulting Bank in an amount equal to such
excess.
(iii) If on any date the sum of the aggregate outstanding
principal amount of Revolving Loans made by Non-Defaulting Banks, Swingline
Loans and the Letter of Credit Outstandings exceeds the Adjusted Total
Revolving Commitment as then in effect, the Borrower shall repay on such date
the principal of Swingline Loans, and if no Swingline Loans are or remain
outstanding, Revolving Loans of Non-Defaulting Banks, in an aggregate amount
equal to such excess. If, after giving effect to the repayment of all
outstanding Swingline Loans and Revolving Loans of Non-Defaulting Banks, the
aggregate amount of Letter of Credit Outstandings exceeds the Adjusted Total
Revolving Commitment then in effect, the Borrower shall pay to the Agent an
amount in cash and/or Cash Equivalents equal to such excess and the Agent
shall hold such payment as security for the obligations of the Borrower
hereunder pursuant to a cash collateral agreement to be entered into in form
and substance satisfactory to the Agent (which shall permit certain
investments in Cash Equivalents satisfactory to the Agent, until the proceeds
are applied to the secured obligations).
-20-
(iv) If on any date the aggregate outstanding principal amount of
the Revolving Loans made by a Defaulting Bank exceeds the Revolving
Commitment of such Defaulting Bank, the Borrower shall repay principal of the
Revolving Loans of such Defaulting Bank in an amount equal to such excess.
(b) On each date set forth below, the Borrower shall be required
to repay the AR Repayment Percentage of the principal amount of AR Loans set
forth opposite such date (each such repayment, a "Scheduled Repayment").
Date AMOUNT
---- -----------
December 31, 1999 $10,625,000
March 31, 2000 $10,625,000
June 30, 2000 $10,625,000
September 30, 2000 $10,625,000
December 31, 2000 $13,281,250
March 31, 2001 $13,281,250
June 30, 2001 $13,281,250
September 30, 2001 $13,281,250
December 31, 2001 $14,609,375
March 31, 2002 $14,609,375
June 30, 2003 $14,609,375
September 30, 2002 $14,609,375
December 31, 2002 $14,609,375
March 31, 2003 $14,609,375
June 30, 2003 $14,609,375
AR Maturity Date $14,609,375
(c) On the Business Day following the date of receipt thereof by
Holdings, the Borrower and/or any of its Subsidiaries of the Cash Proceeds
from any Asset Sale, an amount equal to 100% of the Net Cash Proceeds from
such Asset Sale shall be applied as a mandatory repayment of the principal of
the then outstanding AR Loans, provided that such Net Cash Proceeds from
Permitted Asset Sales shall not be required to be used to so repay Loans to
the extent the Borrower elects, as hereinafter provided, to cause such Net
Cash Proceeds to be reinvested in Reinvestment Assets (a "Reinvestment
Election"). The Borrower may exercise its Reinvestment Election (within the
parameters specified in the preceding sentence) with respect to an Asset Sale
if (x) no Default or Event of Default exists and (y) the Borrower delivers a
Reinvestment Notice to the Agent on the Business Day following the date of
the consummation of the respective Asset Sale, with such Reinvestment
Election being effective with respect to the Net Cash Proceeds of such Asset
Sale equal to the Anticipated Reinvestment Amount specified in such
Reinvestment Notice.
-21-
(d) On the date of the receipt thereof by Holdings or the
Borrower, as the case may be, an amount equal to 75% of the cash proceeds
(net of underwriting discounts and commissions and other reasonable costs
associated therewith) of any sale or issuance of equity by Holdings or the
Borrower, respectively (other than equity issued to management and other
employees of Holdings, the Borrower or its Subsidiaries, the exercise of any
warrants outstanding on the Restatement Effective Date and/or any amount of
cash received by Holdings or the Borrower in connection with any capital
contributions made by any of the Designated UOH Stockholders or, in the case
of the Borrower, by Holdings) shall be applied as a mandatory repayment of
the principal of the then outstanding AR Loans provided that the first
$5,000,000 of such proceeds in the aggregate do not have to be so applied to
repay Loans.
(e) On each date which is 90 days after the last day of each
fiscal year of the Borrower (commencing with the fiscal year ending on
December 31, 1999), 50% of Excess Cash Flow for the fiscal year then last
ended shall be applied as a mandatory repayment of the principal of the then
outstanding AR Loans.
(f) On the Reinvestment Prepayment Date with respect to a
Reinvestment Election, an amount equal to the Reinvestment Prepayment Amount,
if any, for such Reinvestment Election shall be applied as a repayment of the
principal of the then outstanding AR Loans.
(g) On the date on which any Change of Control occurs, the
outstanding principal amount of all Loans shall become due and payable in
full.
(B) APPLICATION:
(a) Each mandatory repayment made after the AR Termination Date of
AR Loans pursuant to Section 4.02(A) (other than pursuant to clause (a) or
(b) thereof) shall be applied to reduce the Scheduled Repayments on a PRO
RATA basis (based upon the then remaining outstanding principal amount of
each such Scheduled Repayment).
(b) With respect to each prepayment of Loans required by Section
4.02, the Borrower may designate the Types of Loans which are to be prepaid
and the specific Borrowing(s) under the affected Facility pursuant to which
made, provided that (i) Eurodollar Loans may so be designated for prepayment
pursuant to this Section 4.02 only on the last day of an Interest Period
applicable thereto unless all Eurodollar Loans made pursuant to such Facility
with Interest Periods ending on such date of required prepayment and all Base
Rate Loans made pursuant to such Facility have been paid in full; (ii) if any
prepayment of Eurodollar Loans made pursuant to a single Borrowing shall
reduce the outstanding Loans made pursuant to such Borrowing to an amount
less than the Minimum Borrowing Amount for such Borrowing, such Borrowing
shall be immediately converted into Base Rate
-22-
Loans; (iii) each prepayment of any AR Loans or Revolving Loans made by
Non-Defaulting Banks pursuant to a Borrowing shall be applied PRO RATA among
such AR Loans or Revolving Loans, as the case may be; and (iv) each
prepayment of any AR Loans or Revolving Loans made by Defaulting Banks
pursuant to a Borrowing shall be applied PRO RATA among such AR Loans or
Revolving Loans, as the case may be. In the absence of a designation by the
Borrower as described in the preceding sentence, the Agent shall, subject to
the above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under Section 1.11.
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
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Borrower shall also reimburse each Bank, upon the written request of such
Bank, for taxes imposed on or measured by the net income of such Bank
pursuant to the laws of the jurisdiction in which the principal office or
applicable lending office of such Bank is located or of any political
subdivision or taxing authority of any such jurisdiction and for any
withholding of income or similar taxes imposed by the United States of
America as such Bank shall determine are payable by, or withheld from, such
Bank in respect of Taxes paid to or on behalf of such Bank pursuant to this
or the preceding sentence. The Borrower will furnish to the Agent within 45
days after the date the payment of any Taxes, or any withholding or deduction
on account thereof, is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by the Borrower. The Borrower will indemnify
and hold harmless the Agent and each Bank, and reimburse the Agent or such
Bank upon its written request, for the amount of any Taxes so levied or
imposed and paid or withheld by such Bank.
(b) Each Bank which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes
agrees (i) to provide to the Borrower on or prior to the 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,
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it shall provide a statement to the Agent and such Bank, setting forth the
amount of such taxes so deducted or withheld, the applicable rate and any
other information or documentation which such Bank may reasonably request for
assisting such Bank in obtaining any allowable credits or deductions for the
taxes so deducted or withheld in the jurisdiction or jurisdictions in which
such Bank is subject to tax. Notwithstanding anything to the contrary
contained in the preceding sentence, the Borrower agrees to indemnify each
Bank in the manner set forth in Section 4.04(a) in respect of any amounts
deducted or withheld by it as described in the previous sentence as a result
of any changes after the 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 PRECEDENT.
5.01 CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligation of
the Banks to make each Loan and of the Letter of Credit Issuer to issue each
Letter of Credit is subject, at the time thereof, to the satisfaction of the
following conditions:
(a) NOTICE OF BORROWING. The Agent shall have received a Notice
of Borrowing meeting the requirements of Section 1.02 or a Letter of Credit
Request meeting the requirements of Section 2.03.
(b) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
each Credit Event and also after giving effect thereto, (i) there shall exist
no Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents shall be true and correct
in all material respects with the same effect as though such representations
and warranties had been made on and as of the date of such Credit Event,
except to the extent that such representations and warranties expressly
relate to an earlier date.
(c) TESTED BORROWINGS. At the time of incurring any Tested
Borrowing, each of the covenants set forth in Sections 8.11 through 8.14
shall have been satisfied as of, and no Event of Default under Section
9.08(B) or (C) shall exist as of, the Measurement Date relating to such
Tested Borrowing determined on a PRO FORMA basis as if such Tested Borrowing
occurred on such Measurement Date and, in the case of a Tested Borrowing
financing a Permitted Acquisition, such Permitted Acquisition was consummated
on the first day of the 12-month period ending on such Measurement Date.
The acceptance of the benefits of each Credit Event shall
constitute a representation and warranty by the Borrower to the Agent and
each of the Banks that all of the applicable conditions specified above exist
as of that time.
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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.
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 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 Holdings,
the Borrower or any of its Subsidiaries (i) that are likely to have a
Material Adverse Effect or (ii) that could reasonably be expected to have a
material adverse effect on the rights or remedies of the
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Banks or on the ability of the Credit Parties to perform their obligations to
them under the Credit Documents.
6.05 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of AR
Loans may be used to finance Permitted Acquisitions.
(b) The proceeds of Revolving Loans and Swingline Loans may be
used for the general corporate and working capital purposes of the Borrower
and its Subsidiaries.
(c) Neither the making or continuance of any Loan hereunder, nor
the use of the proceeds thereof, will violate or be inconsistent with the
provisions of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System and no part of the proceeds of any Loan will be used
to purchase or carry any Margin Stock in violation of Regulation U or to
extend credit for the purpose of purchasing or carrying any Margin Stock.
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
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
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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
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
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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 Restatement
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
Original Credit Agreements 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
Security Documents first executed after such date), each of the Security
Documents create, as security for the Obligations purported to be secured
thereby, a valid and enforceable perfected security interest in and Lien on
all of the Collateral subject thereto, superior to and prior to the rights of
all third Persons and subject to no other Liens (except (x) that the Security
Agreement Collateral may be subject to the security interests evidenced by
Permitted Liens relating thereto and (y) the Mortgaged Properties may be
subject to Permitted Encumbrances relating thereto), in favor of the
Collateral Agent for the benefit of the Banks. No filings or recordings are
required in order to perfect the security interests created under any
Security Document except for filings or recordings required in connection
with any such Security Document (other than the Pledge Agreements) which
shall have been made upon or prior to (or are the subject of arrangements,
satisfactory to the Agent, for filing on or promptly after the date of) the
execution and delivery thereof.
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.
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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 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
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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 or any Subordinated Debt Indenture,
(ii) applicable law, (iii) customary non-assignment provisions entered into
in the ordinary course of business and consistent with past practices, (iv)
any restriction or encumbrance with respect to a Subsidiary of the Borrower
imposed pursuant to an agreement which has been entered into for the sale or
disposition of all or substantially all of the capital stock or assets of
such Subsidiary, so long as such sale or disposition is permitted under this
Agreement, and (v) any documents or instruments governing the terms of any
Indebtedness or other obligations secured by Liens permitted by Section 8.03,
provided that such prohibitions or restrictions apply only to the assets
subject to such Liens.
6.17 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
-31-
Material Adverse Effect. Neither Holdings, the Borrower nor any of its
Subsidiaries is in noncompliance with, breach of or default under any
applicable writ, order, judgment, injunction, or decree to which Holdings,
the Borrower or such Subsidiary is a party or which would affect the ability
of the Borrower or such Subsidiary to operate any real property and no event
has occurred and is continuing which, with the passage of time or the giving
of notice or both, would constitute noncompliance, breach of or default
thereunder, except in each such case, such noncompliance, breaches or
defaults as are not likely to, in the aggregate, have a Material Adverse
Effect. There are as of the Restatement Effective Date no Environmental
Claims pending or, to the best knowledge of the Borrower, threatened, which
(a) challenge the validity, term or entitlement of the Borrower or any of its
Subsidiaries for any permit, license, order or registration required for the
operation of any facility under the Environmental Laws which the Borrower or
any of its Subsidiaries operates and (b) wherein an unfavorable decision,
ruling or finding would be reasonably likely to have a Material Adverse
Effect. There are no facts, circumstances, conditions or occurrences
concerning Holdings, the Borrower or any of its Subsidiaries, any of their
operations or on any Real Property or, to the knowledge of the Borrower, on
any property adjacent to any such Real Property that could reasonably be
expected (i) to form the basis of an Environmental Claim against the
Borrower, any of its Subsidiaries or any Real Property of the Borrower or any
of its Subsidiaries, or (ii) to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such Real
Property under any Environmental Law, except in each such case, such
Environmental Claims or restrictions that individually or in the aggregate
are not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated,
used, treated or stored on, or transported to or from, any Real Property of
the Borrower or any of its Subsidiaries or (ii) released on any Real
Property, in each case where such occurrence or event individually or in the
aggregate is reasonably likely to have a Material Adverse Effect.
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 solely sign locations) and the type of
interest therein held by the Borrower or the respective Subsidiary. Holdings
owns no properties or assets (other than the Tax Sharing Agreement) other
than all of the capital stock of the Borrower.
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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 Consolidation Date that is in excess of $5,000 for any
one issue and is to remain outstanding thereafter (all such Indebtedness, of
whatever size, but excluding Indebtedness hereunder, the "Existing
Indebtedness"), in each case showing the aggregate principal amount thereof
and the name of the respective borrower (or issuer) and any other entity
which directly or indirectly guaranteed such debt.
SECTION 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 are outstanding and the Loans, 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
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of such accounting firm such a Default or Event of Default has occurred and
is continuing, a statement as to the nature thereof.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in
any event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year, the consolidated balance sheet of the
Borrower and its Subsidiaries and of Holdings and its Subsidiaries, as at the
end of such quarterly period and the related consolidated statements of
income and retained earnings and of cash flows for such quarterly period and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly period, and in each case setting forth comparative consolidated
figures for the related periods in the prior fiscal year, all of which shall
be certified by the chief financial officer or controller of the Borrower or
Holdings, as appropriate, subject to changes resulting from audit and normal
year-end audit adjustments.
(c) MONTHLY REPORTS. As soon as practicable, and in any event
within 30 days, after the end of each monthly accounting period of each
fiscal year the consolidated balance sheet of the Borrower and its
Subsidiaries and of Holdings and its Subsidiaries, as at the end of such
period, and the related consolidated statements of income and retained
earnings for such period, setting forth comparative figures for the
corresponding period of the previous year, all of which shall be certified by
the chief financial officer or controller of the Borrower or Holdings, as
appropriate, subject to changes resulting from audit and normal year-end
audit adjustments.
(d) BUDGETS; ETC. Not more than 60 days after the commencement of
each fiscal year of the Borrower, a budget of the Borrower and its
Subsidiaries in reasonable detail for each of the twelve months of such
fiscal year. Together with each delivery of consolidated financial
statements pursuant to Sections 7.01(a), (b) and (c), a comparison of the
current year to date financial results against the budgets required to be
submitted pursuant to this clause (d) shall be presented.
(e) OFFICER'S CERTIFICATES. (i) At the time of the delivery of
the financial statements provided for in Sections 7.01(a), (b) and (c), a
certificate of the chief financial officer, controller or other Authorized
Officer of the Borrower to the effect that no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying the
nature and extent thereof, which certificate, shall set forth the
calculations required to establish (I) the Modified Holdings Leverage Ratio
for the Relevant Determination Date occurring on the last day of such fiscal
year, quarter or month, (II) whether the Borrower and its Subsidiaries were
in compliance with the provisions of Sections 8.11, 8.12 and 8.13, as
applicable, as at the end of such fiscal period or year, as the case may be
and (III) whether there was any Event of Default under Section 9.08(B) and/or
9.08(C) as at the end of such fiscal period.
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(ii) At the time of any incurrence of Consolidated Debt of Holdings
and its Subsidiaries at a time when the Margin Reduction Discount is (or
based on the last officer's certificate delivered pursuant to clause (i)
above will be) greater than zero, a certificate of any of the persons
specified in clause (i) above setting forth the calculations establishing the
Modified Holdings Leverage Ratio after giving effect to the incurrence of
such Consolidated Debt.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any event
within three Business Days after the Borrower obtains knowledge thereof,
notice of (x) the occurrence of any event which constitutes a Default or
Event of Default which notice shall specify the nature thereof, the period of
existence thereof and what action the Borrower proposes to take with respect
thereto and (y) the commencement of or any significant development in any
litigation or governmental proceeding pending against Holdings, the Borrower
or any of its Subsidiaries which is likely to have a Material Adverse Effect
or is likely to have a material adverse effect on the ability of the Borrower
to perform its obligations hereunder or under any other Credit Document.
(g) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy of
each other final report or "management letter" submitted to Holdings or the
Borrower by its independent accountants in connection with any annual,
interim or special audit made by it of the books of Holdings and/or the
Borrower.
(h) ENVIRONMENTAL MATTERS. Promptly upon, and in any event within
20 Business Days after an officer of Holdings, the Borrower or any Subsidiary
obtains knowledge thereof, notice of one or more of the following
environmental matters: (i) any pending or threatened (in writing) material
Environmental Claim against, or for which liability would attach to, the
Borrower or any of its Subsidiaries or any Real Property owned or operated by
the Borrower or any of its Subsidiaries; (ii) any condition or occurrence on
or arising from any Real Property owned or operated by the Borrower or any of
its Subsidiaries that (a) results in material noncompliance by Holdings, the
Borrower or any of its Subsidiaries with any applicable material
Environmental Law or (b) would reasonably be expected to form the basis of a
material Environmental Claim against, or for which liability would attach to,
the Borrower or any of its Subsidiaries or any such Real Property; (iii) any
condition or occurrence on any Real Property owned or operated by the
Borrower or any of its Subsidiaries that could reasonably be expected to
cause such Real Property to be subject to any material restrictions on the
ownership, occupancy, use or transferability by the Borrower or any of its
Subsidiaries of such Real Property under any Environmental Law; and (iv) the
taking of any material removal or remedial action in response to the actual
or alleged presence of any Hazardous Material on any Real Property owned or
operated by the Borrower or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative agency, and all
such notices shall describe in reasonable detail the nature of the claim,
investigation, condition,
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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 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
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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 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,
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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 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 Consolidation Date, the Borrower shall deliver to the
Agent a duly authorized and executed counterpart or counterparts of deeds of
trust, mortgages and similar documents in form and substance reasonably
satisfactory to the Agent (the "Additional Mortgages") covering all of the
Real Property owned by the Borrower not subject to Mortgages on the
Consolidation Date (x) which Additional Mortgages shall constitute valid and
enforceable Liens superior to and prior to the rights of all third Persons
and subject to no other Liens except as permitted by Section 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.
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(b) The Borrower will, and will cause the Subsidiary Guarantors
to, grant to the Collateral Agent security interests and mortgages (each a
"New Mortgage") in such owned Real Property (x) of the Borrower acquired
(including as a result of the merger of one or more Subsidiaries with the
Borrower) after the Consolidation Date or (y) of a Subsidiary Guarantor owned
on the date it first becomes a Subsidiary Guarantor or thereafter acquired,
in each case as may be requested from time to time by the Agent. Such New
Mortgages shall be granted pursuant to documentation reasonably satisfactory
in form and substance to the Agent and shall constitute valid and enforceable
Liens superior to and prior to the rights of all third Persons and subject to
no other Liens except as are permitted by Section 8.03. The New Mortgages or
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish, perfect,
preserve and protect the Liens in favor of the Collateral Agent required to
be granted pursuant to the New Mortgages and all taxes, fees and other
charges payable in connection therewith shall have been paid in full, with
each New Mortgage to be accompanied by mortgage policies related thereto
reasonably satisfactory to the Agent.
(c) The Borrower will, and will cause its Subsidiaries to, at the
expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements,
transfer endorsements, powers of attorney, certificates, real property
surveys, reports and other assurances or instruments and take such further
steps relating to the collateral covered by any of the Security Documents as
the Collateral Agent may reasonably require. Furthermore, the Borrower shall
cause to be delivered to the Collateral Agent such opinions of counsel, title
insurance and other related documents as may be requested by the Agent to
assure themselves that this Section 7.10 has been complied with.
(d) The Borrower agrees that each action required above by Section
7.10(b) or (c) shall be completed as soon as possible, but in no event later
than 60 days after such action is requested to be taken by the Agent or the
Required Banks, provided that in no event shall the Borrower be required to
take any action, other than using its reasonable commercial efforts without
any material expenditure, to obtain consents from third parties with respect
to its compliance with this Section 7.10.
7.11 CORPORATE SEPARATENESS. The Borrower will take, and will
cause each of its Subsidiaries to take, all such action as is necessary to
keep the operations of the Borrower and its Subsidiaries separate and apart
from those of Holdings, including, without limitation, ensuring that all
customary formalities regarding corporate existence, including holding
regular board of directors' meetings and maintenance of corporate records,
are followed. All financial statements of the Borrower and its Subsidiaries
provided to creditors will clearly evidence the corporate separateness of the
Borrower and its Subsidiaries from Holdings. Finally, neither the Borrower
nor any of its Subsidiaries will
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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 or
the other Credit Documents will breach this covenant.
7.12 COMPLIANCE WITH ENVIRONMENTAL LAWS. (i) The Borrower will
comply, and the Borrower will cause each of its Subsidiaries to comply, with
all Environmental Laws applicable to the ownership, lease or use of all Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, will promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance, and will keep or cause
to be kept all such Real Property free and clear of any Liens imposed
pursuant to such Environmental Laws and (ii) neither the Borrower nor any of
its Subsidiaries will generate, use, treat, store, release or dispose of, or
permit the generation, use, treatment, storage, release or disposal of
Hazardous Materials on any Real Property now or hereafter owned, leased or
operated by the Borrower or any of its Subsidiaries, or transport or permit
the transportation of Hazardous Materials to or from any such Real Property,
except to the extent that the failure to comply with the requirements
specified in clause (i) or (ii) above, either 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 Restatement Effective Date and thereafter for so long as
this Agreement is in effect and until the Commitments have terminated, no
Notes are outstanding and the Loans, together with interest, Fees and all
other Obligations incurred hereunder, are paid in full, that:
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.
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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 may be merged or consolidated
with or into, or be liquidated into, the Borrower (so long as the Borrower
is the surviving corporation) or any other Subsidiary (so long as a
Subsidiary Guarantor, if a party thereto, is the surviving corporation), or
all or any part of its business, properties and assets may be conveyed,
leased, sold or transferred to the Borrower or any other Subsidiary
Guarantor;
(b) capital expenditures to the extent within the limitations set
forth in Section 8.05 hereof;
(c) the investments, acquisitions and transfers or dispositions of
properties permitted pursuant to Section 8.06;
(d) each of the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
such lease does not create a Capitalized Lease Obligation not otherwise
permitted by Section 8.04(d));
(e) licenses or sublicenses by the Borrower and its Subsidiary of
software, customer lists, trademarks and other intellectual property in
the ordinary course of business, provided, that such licenses or
sublicenses shall not interfere with the business of the Borrower or
any Subsidiary;
(f) other sales or dispositions of assets (I) for cash in an amount
equal to the fair market value thereof as determined by the Borrower and/or
(II) in exchange for other assets permitted to be held under Section 8.01
provided that, in each case, (i) the assets so sold or disposed of,
together with all other assets, previously sold or disposed of pursuant to
this clause (f) after or during the Calculation Period applicable to such
sale or disposition, shall not have generated Adjusted EBITDA of the
Borrower during such Calculation Period (taken as one accounting period)
equal to 15% or more of the aggregate Adjusted EBITDA of the Borrower
during such Calculation Period (taken as one accounting period), (ii) the
assets so sold or disposed of, together with all other assets previously
sold or disposed of pursuant
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to this clause (f) after the Restatement Effective Date, shall not have
generated Adjusted EBITDA of the Borrower during the period (taken as one
accounting period) commencing on the Restatement Effective Date and ending
on the last day of the last month for which financial statements of the
Borrower are reasonably available equal to 25% or more of the aggregate
Adjusted EBITDA of the Borrower during such period (taken as one accounting
period) and (iii) the Net Cash Proceeds, if any, of any such sale are
applied to repay the Loans to the extent required by Section 4.02(A)(c),
and, provided further, that the sale or disposition of the capital stock of
any Subsidiary of the Borrower shall be prohibited unless it is for all of
the outstanding capital stock of such Subsidiary owned by the Borrower;
(g) other sales or dispositions of assets in each case to the extent
the Required Banks have consented in writing thereto and subject to such
conditions as may be set forth in such consent;
(h) any Subsidiary may be liquidated into the Borrower; and
(i) Permitted Acquisitions provided that after giving effect thereto
and the related borrowings to finance same there would be no default under
Sections 8.11 through 8.14 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 and with pro forma adjustments to the
Consolidated EBITDA of the Person being acquired to give effect to
contemplated cost savings as estimated in good faith by the Borrower and
agreed to by the Agent.
8.03 LIENS. The Borrower will not, and will notpermit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets of any kind (real or personal,
tangible or intangible) of the Borrower or any such Subsidiary whether now
owned or hereafter acquired, or sell any such property or assets subject to
an understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with
recourse to the Borrower or any of its Subsidiaries) or assign any right to
receive income, or file or permit the filing of any financing statement under
the UCC or any other similar notice of Lien under any similar recording or
notice statute, except:
(a) Liens for taxes not yet due or Liens for taxes being contested
in good faith and by appropriate proceedings for which adequate reserves
(in the good faith judgment of the management of the Borrower) have been
established;
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(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 Consolidation Date and listed on Part A of Annex VIII hereto,
without giving effect to any subsequent extensions or renewals thereof and
(y) immaterial Liens on assets of the Borrower and each Subsidiary existing
on the Consolidation Date at the locations listed on Part B of Annex VIII;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09
provided, that no cash or property is deposited or delivered to secure any
respective judgment or award (or any appeal bond in respect thereof,
except as permitted by the following clause (f));
(f) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the
ordinary course of business (exclusive of obligations in respect of the
payment for borrowed money) provided, that the aggregate amount of
deposits at any time pursuant to this clause (f) shall not exceed
$500,000;
(g) Leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any of its
Subsidiaries;
(h) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
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(i) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(j) Purchase money Liens securing payables arising from the purchase
by the Borrower of any equipment or goods in the normal course of business,
provided that such payables shall not constitute Indebtedness;
(k) Any interest or title of a lessor or any lien on the interest or
title of a lessor under any lease permitted by this Agreement;
(l) Liens arising pursuant to purchase money mortgages relating to,
or security interests securing Indebtedness representing the purchase
price of, assets acquired by the Borrower or any Subsidiary Guarantor after
the Restatement Effective Date, provided that any such Liens attach only to
the assets so acquired and that all Indebtedness secured by Liens created
pursuant to this clause (l) shall not exceed $5,000,000 at any time
outstanding;
(m) Liens created pursuant to Capital Leases permitted pursuant to
Section 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.
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 and the other
Credit Documents;
(b) Indebtedness owing by (i) any Subsidiary to the Borrower or
another Subsidiary and (ii) the Borrower to any Subsidiary;
(c) Permitted Subordinated Debt;
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(d) Capitalized Lease Obligations of the Borrower or
any Subsidiary Guarantor, provided that the aggregate
Capitalized Lease Obligations under all Capital Leases
entered into after the Restatement Effective Date shall not
exceed $10,000,000;
(e) Existing Indebtedness, without giving effect to
any subsequent extension, renewal or refinancing thereof;
(f) Additional Subordinated Debt;
(g) to the extent same has been assumed by the
Borrower, Indebtedness evidenced by the promissory note
originally executed by Holdings in favor of Xxxxxxx X. Xxxxx
(the "Xxxxx Note");
(h) Indebtedness incurred pursuant to purchase money
mortgages permitted by Section 8.03(l);
(i) Indebtedness of a Person, or secured by assets,
acquired after the Restatement Effective Date pursuant to a
Permitted Acquisition provided that such Indebtedness (x)
existed at the time of such Permitted Acquisition and was
not created in connection therewith or in anticipation
thereof, (y) is not guaranteed in any respect by the
Borrower or any of its Subsidiaries, except to the extent
such Person merges into, or such assets are directly
acquired by, the Borrower or such Subsidiary and (z) shall
not exceed in the aggregate for all Indebtedness permitted
by this clause (i) $10,000,000 at any time outstanding,
without giving effect to any subsequent extension, renewal
or refinancing thereof; and
(j) additional Indebtedness of the Borrower not to
exceed an aggregate outstanding principal amount of
$5,000,000 at any time.
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 plus the
Additional Cap Ex for such period, (y) during the fiscal year of the Borrower
ended December 31, 1997, $12,000,000 plus the Additional Cap Ex for such
fiscal year and (z) during each successive fiscal year of the Borrower, in an
aggregate amount not in excess of 105% of the maximum amount for the prior
fiscal year, determined by excluding the Additional Cap Ex for such prior
fiscal year, plus the Modified Additional Cap Ex for each such fiscal year.
-45-
(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 any other
Person if 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 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 issue, sell, assign, pledge or
otherwise encumber or dispose of, any shares of a Subsidiary's capital stock
or other securities (or warrants, rights or options to acquire shares or
other equity securities) of such Subsidiary, except to the Borrower (to the
extent otherwise permitted hereunder) and except for dispositions permitted
by Section 8.02 and (y) after the 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.
8.08 PREPAYMENTS OF INDEBTEDNESS, ETC. The Borrower will not,
and will not permit any of its Subsidiaries to:
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(a) make (or give any notice in respect thereof) any
voluntary or optional payment or prepayment or redemption or
acquisition for value of (including, without limitation, by
way of depositing with the trustee with respect thereto
money or securities before due for the purpose of paying
when due) or exchange of any Subordinated Debt, the Xxxxx
Note or any other Existing Indebtedness;
(b) amend or modify, or permit the amendment or
modification of, any provisions of any Subordinated Debt
Documents; and/or
(c) amend, modify or change in any manner adverse to
the interests of the Banks the Certificate of Incorporation
(including, without limitation, by the filing of any
certificate of designation) or By-Laws of the Borrower or
any agreement entered into by the Borrower, with respect to
its capital stock, or 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.
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 Xxxxxx X. Xxxxx
solely out of the proceeds of any policy of insurance maintained to provide
funds for such purpose, (ii) to the extent the Indebtedness evidenced by such
Note has not been assumed by the Borrower, the payment of dividends to
Holdings in an annual amount not to exceed $120,000 to fund payments of
interest on the Xxxxx Note, (iii) the payment of cash Dividends to Holdings
to the extent the proceeds are promptly used to pay administrative costs
arising in the ordinary course of business and cash interest when due on the
Permitted Holdings Debt and (iv) the payment of cash Dividends to Holdings to
be promptly utilized by Holdings to purchase its Common Stock (or options or
warrants to purchase such Common Stock) from officers, employees and
directors (or their estates) upon the death, permanent disability, retirement
or termination of employment of any such Person or otherwise in accordance
with any stock option plan or any employee stock ownership plan or any
warrant plan.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance
or restriction which prohibits or otherwise restricts (A) the ability of any
Subsidiary to (a) pay dividends or make other distributions or pay any
Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or
advances to the Borrower or any Subsidiary or (c) transfer any of its
properties or assets to the Borrower or any Subsidiary or (B) the ability of
the Borrower or any other
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Subsidiary of the Borrower to create, incur, assume or suffer to exist any
Lien upon its property or assets to secure the Obligations, other than
prohibitions or restrictions existing under or by reason of: (i) this
Agreement, the other Credit Documents and any Subordinated Debt Indenture
(once executed);(ii) applicable law;(iii) customary non-assignment provisions
entered into in the ordinary course of business and consistent with past
practices;(iv) any restriction or encumbrance with respect to a Subsidiary of
the Borrower imposed pursuant to an agreement which has been entered into for
the sale or disposition of all or substantially all of the capital stock or
assets of such Subsidiary, so long as such sale or disposition is permitted
under this Agreement; and (v) Liens permitted under Section 8.03 and any
documents or instruments governing the terms of any Indebtedness or other
obligations secured by any such Liens, provided that such prohibitions or
restrictions apply only to the assets subject to such Liens.
8.10 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any Subsidiary to, sell, lease, license, transfer, exchange,
or otherwise dispose of any of its properties, assets or services to, or
purchase, lease, or license the use of any property, 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
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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 (A) 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
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 SENIOR LEVERAGE RATIO. On and after the Consolidation Date
the Borrower will not permit the Senior Leverage Ratio as of any Measurement
Date occurring in a period set forth below to be more than the ratio set
forth opposite such period:
Period Ratio
------ -----
Consolidation Date through
December 30, 1997 5.50 to 1.0
December 31, 1997 through
December 30, 1998 5.00 to 1.0
December 31, 1998 and
thereafter 4.50 to 1.0
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
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
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
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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 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
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is adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; Holdings, the Borrower or
any of its Subsidiaries suffers any appointment of any custodian or the like
for it or any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or Holdings, the Borrower or any of its
Subsidiaries makes a general assignment for the benefit of creditors; or any
corporate action is taken by Holdings, the Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
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 Security Document or Guaranty (once
executed) shall cease to be in full force and effect (except as provided for
therein), or any Security Document shall cease to give the Collateral Agent
any Lien encumbering assets with an aggregate fair market value in excess of
$2,500,000 (and, if encumbering assets with a fair market value of less than
$2,500,000, for a period greater than thirty or more days), or any material
rights, powers and privileges purported to be created thereby in favor of the
Collateral Agent or any Credit Party shall default in any material respect in
the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to any such Security Document or
Guaranty or shall disaffirm or seek to disaffirm any Guaranty; or
9.08 HOLDINGS. (A) Holdings shall after the Restatement
Effective Date (i) incur any Indebtedness except for Permitted Holdings Debt
and the Holdings Guaranty, (ii) grant or create any Lien on any of its assets
that secures Indebtedness other than pursuant to the Holdings Pledge
Agreement, (iii) modify or amend, or prepay, any Permitted Holdings Debt,
(iv) engage in any business or activity other than the ownership of all of
the capital stock of the Borrower and administrative activities directly
related thereto, (v) sell or dispose of any of, or otherwise cease to own all
of, the capital stock of the Borrower, (vi) change its fiscal quarters or
fiscal year from those applicable also to the Borrower, (vii) fail to
maintain its own payroll and books of account and bank accounts
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separate from those of the Borrower and its Subsidiaries, (viii) fail to pay
its liabilities, including all administrative expenses, from its own separate
assets, (ix) fail to separately identify and segregate its assets from the
assets of the Borrower and its Subsidiaries and/or (x) amend, modify or
change in any way adverse to the interests of the Banks, its Certificate of
Incorporation (including, without limitation, by the filing or modification
of any certificate of designation) or By-Laws or any agreement entered into
by Holdings with respect to its capital stock, except in each case (a) as
expressly required by any of the Shareholders' Agreements, Management
Agreements, Tax Sharing Agreements and subscription agreements with members
of management, all as in effect on the Restatement Effective Date, (b) as
expressly required by law and (c) Holdings issuing Capital Stock in any
public offering to the extent the proceeds thereof are used to repay the
Loans as required by Section 4.02(A)(d) hereof;
(B) The Holdings Leverage Ratio as of any Measurement Date
occurring in a period set forth below is more than the ratio set forth
opposite such period:
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) The ratio of (i) Adjusted EBITDA of Holdings to (ii)
Consolidated Interest Expense of Holdings for any 12 month period (taken as
one accounting period) ending on a Measurement Date occurring in a period
set forth below is less than the ratio set forth opposite such period:
Period Ratio
------ -----
Restatement 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
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9.09 JUDGMENTS. One or more judgments or decrees shall be
entered against Holdings, the Borrower and/or any of its Subsidiaries
involving a liability of $2,500,000 or more or in the aggregate (not paid or
to the extent not covered by insurance) and any such judgments or decrees
shall not have been vacated, discharged or stayed or bonded pending appeal
within 60 days from the entry thereof;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Agent shall, upon the written request
of the Required Banks, by written notice to the Borrower, take any or all of
the following actions, without prejudice to the rights of the Agent or any
Bank to enforce its claims against the Borrower, except as otherwise
specifically provided for in this Agreement (provided that, if an Event of
Default specified in Section 9.05 shall occur with respect to the Borrower,
the result which would occur upon the giving of written notice by the Agent
as specified in clauses (i) and (ii) below shall occur automatically without
the giving of any such notice): (i) declare the Total Commitment terminated,
whereupon the Commitment of each Bank shall forthwith terminate immediately
and any Commitment Commission shall forthwith become due and payable 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" and "Acquisition Documents" shall each have the
meaning provided in the Restated Acquisition Credit Agreement.
"Additional Cap Ex" for any fiscal year (or portion thereof) shall
mean an amount equal to the aggregate of (x) the "Prior Year Cap Ex" of each
Person acquired by the Borrower and its Subsidiaries during such fiscal year
(or portion thereof) pursuant to a Permitted Acquisition times (y) the
"Remaining Percentage" applicable to such acquisition, with the "Prior Year
Cap Ex" for each such Person to be 105% of the consolidated capital
expenditures for such Person for the fiscal year of such Person last ended
prior to such acquisition and "Remaining Percentage" for an acquisition shall
mean the percentage determined by dividing the days remaining in such fiscal
year after such acquisition by the total number of days in such fiscal year.
"Additional Mortgages" shall have the meaning provided in Section 7.10.
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"Additional Subordinated Debt" shall mean subordinated debt issued
by the Borrower after the Consolidation Date, provided that (i) the terms and
conditions (other than pricing and maturities, provided that no scheduled
payment of principal shall be due and payable prior to the Final Maturity
Date) are (in the reasonable opinion of the Agent) substantially the same as
those contained in the Permitted Subordinated Debt or are consented to by the
Required Banks and (ii) the Additional Subordinated Debt shall not exceed in
the aggregate (x) $150 million less (y) the aggregate principal amount of
Permitted Holdings Debt.
"Adjusted Additional Cap Ex" for any fiscal year shall mean the
Additional Cap Ex for such year determined in each case as if the Remaining
Percentage for such year were equal to 100%.
"Adjusted AR Percentage" shall mean (x) for each Bank that is a
Defaulting Bank, zero and (y) for each other Bank the percentage obtained by
dividing such Bank's AR Commitment at such time by the Adjusted Total AR
Commitment at such time.
"Adjusted Cash Flow" for any fiscal year shall mean Consolidated
Net Income of the Borrower for such fiscal year (after provision for taxes)
plus the amount of all net non-cash charges (including, without limitation,
depreciation, deferred tax expense, non-cash interest expense, amortization
and other non-cash charges) that were deducted in arriving at such
Consolidated Net Income for such fiscal year, minus the amount of all
non-cash gains and gains from sales of assets (other than sales of inventory
and equipment in the normal course of business) that were added in arriving
at such Consolidated Net Income for such fiscal year.
"Adjusted EBITDA" of any Person shall mean, for any period (x) the
Consolidated EBITDA of such Person for such period plus or minus (y) the
adjustments thereto provided for in Exhibit G.
"Adjusted RC Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank such Bank's RC Percentage and (y) at a time
when a Bank Default exists (i) for each Bank that is a Defaulting Bank, zero
and (ii) for each Bank that is a Non-Defaulting Bank, the percentage
determined by dividing such Bank's Revolving Commitment at such time by the
Adjusted Total Revolving Commitment at such time, it being understood that
all references herein to Revolving Commitments and the Adjusted Total
Revolving Commitment at a time when the Total Revolving Commitment or
Adjusted Total Revolving Commitment, as the case may be, has been terminated
shall be references to the Revolving Loan Commitments or Adjusted Total
Revolving Commitment, as the case may be, in effect immediately prior to such
termination, PROVIDED that (A) no Bank's Adjusted RC Percentage shall change
upon the occurrence of a Bank Default from that in effect immediately prior
to such Bank Default if, after giving effect to such Bank Default
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and any repayment of Revolving Loans and Swingline Loans at such time
pursuant to Section 4.02(A)(a) or otherwise, the sum of (i) the aggregate
outstanding principal amount of Revolving Loans of all Non-Defaulting Banks
plus (ii) the aggregate outstanding principal amount of Swingline Loans plus
(iii) the Letter of Credit Outstandings, exceeds the Adjusted Total Revolving
Loan Commitment; (B) the changes to the Adjusted RC Percentage that would
have become effective upon the occurrence of a Bank Default but that did not
become effective as a result of the preceding clause (A) shall become
effective on the first date after the occurrence of the relevant Bank Default
on which the sum of (i) the aggregate outstanding principal amount of the
Revolving Loans of all Non-Defaulting Banks plus (ii) the aggregate
outstanding principal amount of the Swingline Loans plus (iii) the Letter of
Credit Outstandings is equal to or less than the Adjusted Total Revolving
Commitment; and (C) if (i) a Non-Defaulting Bank's Adjusted RC Percentage is
changed pursuant to the preceding clause (B) and (ii) any repayment of such
Bank's Revolving Loans, or of Unpaid Drawings or of Swingline Loans, that
were made during the period commencing after the date of the relevant Bank
Default and ending on the date of such change to its Adjusted RC Percentage
must be returned to the Borrower as a preferential or similar payment in any
bankruptcy or similar proceeding of the Borrower, then the change to such
Non-Defaulting Bank's Adjusted RC Percentage effected pursuant to said clause
(B) shall be reduced to that positive change, if any, as would have been made
to its Adjusted RC Percentage if (x) such repayments had not been made and
(y) the maximum change to its Adjusted RC Percentage would have resulted in
the sum of the outstanding principal of Revolving Loans made by such Bank
plus such Bank's new Adjusted RC Percentage of the outstanding principal
amount of Swingline Loans and of Letter of Credit Outstandings equalling such
Bank's Revolving Commitment at such time.
"Adjusted Revolving Commitment" for each Non-Defaulting Bank shall
mean at any time the product of such Bank's Adjusted RC Percentage and the
Adjusted Total Revolving Commitment.
"Adjusted Total AR Commitment" shall mean at any time the Total AR
Commitment less the aggregate AR Commitments of all Defaulting Banks.
"Adjusted Total Revolving Commitment" shall mean at any time the
Total Revolving Commitment less the aggregate Revolving Commitments of all
Defaulting Banks.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly, the
power (i) to vote 10% or more of the securities having ordinary voting power
for the election of directors of such corporation or (ii) to direct or cause
the direction
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of the management and policies of such corporation, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" shall have the meaning provided in the first paragraph of
this Agreement and shall include any successor to the Agent appointed
pursuant to Section 11.09.
"Aggregate Acquired EBITDA" shall mean, as at any Measurement Date,
an amount equal to the aggregate of 85% of the "12-month Consolidated EBITDA"
of each Person acquired by the Borrower and its Subsidiaries after the
Restatement Effective Date, with the "12-month Consolidated EBITDA" of each
such Person to be the Consolidated EBITDA of such Person for the 12 months
last ended prior to the acquisition of such Person with a pro forma
adjustment thereto to give effect to contemplated cost savings as estimated
in good faith by the Borrower and agreed to by the Agent.
"Agreement" shall mean this Consolidated Credit Agreement, as the
same may be from time to time further modified, amended and/or supplemented.
"Anticipated Reinvestment Amount" shall mean, with respect to any
Reinvestment Election, the amount specified in the Reinvestment Notice
delivered by the Borrower in connection therewith as the amount of the Net
Cash Proceeds from the related Permitted Asset Sale that the Borrower intends
to use to purchase, construct or otherwise acquire Reinvestment Assets.
"Applicable Base Rate Margin" shall mean 1.75% less the Margin
Reduction Discount, if any.
"Applicable Eurodollar Margin" shall mean 2.75% less the Margin
Reduction Discount, if any.
"AR Commitment" shall mean, with respect to each Bank, the amount
set forth opposite such Bank's name in Annex I hereto directly below the
column entitled "AR Commitment," as the same may be reduced from time to time
pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to time as
a result of assignments to or from such Bank pursuant to Section 12.04.
"AR Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"AR Facility" shall mean the Facility evidenced by the Total AR
Commitment.
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"AR Loan" shall have the meaning provided in Section 1.01(A)(a).
"AR Maturity Date" shall mean September 30, 2003.
"AR Note" shall have the meaning provided in Section 1.05(a).
"AR Repayment Percentage" shall mean the percentage obtained by
dividing (x) the aggregate principal amount of AR Loans outstanding on the AR
Termination Date by (y) $212,500,000.
"AR Termination Date" shall mean September 30, 1999 or if earlier
the date on which the Total AR Commitment is terminated.
"Asset Sale" shall mean and include (x) the sale, transfer or other
disposition by the Borrower or any Subsidiary to any Person other than the
Borrower or any Subsidiary of any asset of the Borrower or such Subsidiary
(other than sales, transfers or other dispositions in the ordinary course of
business of inventory and/or obsolete or excess equipment and other than
sales in which the Net Cash Proceeds are $50,000 or less) and/or (y) the
receipt by the Borrower or any Subsidiary of any insurance, condemnation or
similar proceeds in connection with a casualty or taking of any of its assets.
"Authorized Officer" shall mean any senior officer of the Borrower
designated as such in writing to the Agent by the Borrower in each case to
the extent acceptable to the Agent.
"Available ECF Amount" shall mean at any time, an amount equal to
(A) 50% of Excess Cash Flow determined for the fiscal year of the Borrower
(commencing with the fiscal year ending on December 31, 1999) then last ended
less (B) the aggregate Consolidated Capital Expenditures theretofore made
during the then current fiscal year pursuant to Section 8.05(c)(x).
"Available Equity Amount" shall mean at any time (A) an amount
equal to the aggregate net cash proceeds at such time from the sale or
issuance of equity by Holdings or the Borrower after the Consolidation Date
not required to be utilized to repay AR Loans under Section 4.02(A)(d)
(whether or not AR Loans are then outstanding) less (B) the aggregate of any
amounts theretofore expended after the Restatement Effective Date pursuant to
Section 8.05(c)(y) of this Agreement to the extent in excess of the Available
ECF Amount at such time.
"Bank" shall have the meaning provided in the first paragraph of
this Agreement.
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"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of Loans
or to fund its portion of any unreimbursed payments under Section 2.05(c) or
(ii) a Bank having notified the Agent and/or the Borrower that it does not
intend to comply with the obligations under Section 1.01 or under Section
2.05(c), in the case of either (i) or (ii) as a result of the appointment of
a receiver or conservator with respect to such Bank at the direction or
request of any regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher, (i) the rate which
is 1/2 of 1% in excess of the Federal Funds Effective Rate and (ii) the Prime
Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall mean Universal Outdoor, Inc., an Illinois
corporation.
"Borrower Pledge Agreement" shall mean the Pledge Agreement
executed and delivered by the Borrower in the form of Exhibit C hereto.
"Borrowing" shall mean the incurrence of (i) Swingline Loans by the
Borrower from BTCo on a given date and (ii) one Type of Loan pursuant to a
single Facility by the Borrower from all of the Banks having Commitments with
respect to such Facility on a PRo RATA basis on a given date (or resulting
from conversions on a given date), having in the case of Eurodollar Loans the
same Interest Period; provided that Base Rate Loans incurred pursuant to
Section 1.10(b) shall be considered part of any related Borrowing of
Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which
banking institutions are authorized by law or other governmental actions to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) and which is also a day for
trading by and between banks in U.S. dollar deposits in the interbank
Eurodollar market.
"Calculation Period" shall mean, with respect to any sale or
disposition of assets made pursuant to Section 8.02(f), the last 12 month
period for which financial statements of the Borrower are reasonably
available.
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"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 Xxxxx'x Investors Service, Inc. ("Xxxxx'x") is at least P-1
or the equivalent thereof (any such bank, an "Approved Bank"), in each case
with maturities of not more than six months from the date of acquisition,
(iii) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper issued by any Bank or Approved Bank or by the parent company
of any Bank or Approved Bank and commercial paper issued by, or guaranteed
by, any industrial or financial company with a short-term commercial paper
rating of at least A-1 or the equivalent thereof by S&P or at least P-1 or
the equivalent thereof by Moody's (any such company, an "Approved Company"),
or guaranteed by any industrial company with a long term unsecured debt
rating of at least A or A2, or the equivalent of each thereof, from S&P or
Moody's, as the case may be, and in each case maturing within six months
after the date of acquisition and (v) investments in money market funds
substantially all of whose assets are comprised of securities of the type
described in clauses (i) through (iv) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such Asset
Sale, other than the portion of such
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deferred payment constituting interest, but only as and when so received)
and/or insurance or condemnation proceeds received by the Borrower and/or any
Subsidiary from such Asset Sale.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601
et seq.
"Change of Control" shall mean (i) Holdings shall cease to own
legally and beneficially 100% of the outstanding capital stock of the
Borrower, (ii) Management Investors or their Permitted Transferees shall
cease to be the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act) of 75% or more (on a fully diluted basis) of (x) the Common
Stock so beneficially owned by the Management Investors on the Restatement
Effective Date less (y) the Common Stock (not exceeding 750,000 shares) sold
by Management Investors 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 any Subordinated Debt Documents.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time and the regulations promulgated and the rulings issued
thereunder. Section references to the Code are to the Code, as in effect at
the Effective Date and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents.
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"Collateral Agent" shall mean the Agent acting as collateral agent
for the Banks.
"Commitment" shall mean, with respect to each Bank, such Bank's AR
Commitment and Revolving Commitment, if any.
"Commitment Commission" shall mean and include AR Commitment
Commission and RC Commitment Commission.
"Common Stock" shall mean the common stock of Holdings.
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events all amounts expended or capitalized under Capital
Leases but excluding any amount representing capitalized interest) by the
Borrower and its Subsidiaries during that period that, in conformity with
GAAP, are or are required to be included in the property, plant or equipment
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries, provided that Consolidated Capital Expenditures shall in any
event exclude the purchase price paid in connection with any Permitted
Acquisition (whether or not allocable to property, plant and equipment).
"Consolidated Cash Interest Expense" of any Person shall mean, for
any period, Consolidated Interest Expense of such Person, but excluding,
however, interest expense not payable in cash and amortization of discount
and deferred issuance and financing costs.
"Consolidated 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 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, (v) barter revenues
and barter expenses, in each case other than those relating to goods
reasonably expected to be used in the ordinary course of business and (vi)
compensation expense resulting from the issuance of capital stock, stock
options or stock appreciation rights issued to employees, including officers,
of the Designated Person or any Subsidiary, or the exercise of such options
or rights, in each case to the extent the obligation (if any) associated
therewith is not expected to be settled by the payment of cash by the
Designated Person or any Affiliate of the Designated Person and compensation
expense resulting from the repurchase of any such capital stock, options and
rights.
"Consolidated Senior Debt" of any Person shall mean, as of any date
of determination, (x) the Consolidated Debt of such Person less (y) all
Permitted Subordinated Debt included in determining such Consolidated Debt.
"Consolidation Agreement" shall mean the Consolidation and
Amendment, dated as of October 31, 1996, among Holdings, the Borrower and the
Banks.
"Consolidation Date" shall have the meaning provided in the
Consolidation Agreement.
"Contingent Obligations" shall mean as to any Person any obligation
of such Person guaranteeing or intending to guarantee any Indebtedness,
leases, dividends or other obligations ("primary obligations") of any other
Person (the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d) otherwise
to assure or hold harmless the owner of such primary obligation against loss
in respect thereof, provided however, that the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Notes, the
Security Documents, any documents executed in connection therewith and the
Guaranties.
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"Credit Event" shall mean the making or continuance of a Loan or
the issuance of a Letter of Credit.
"Credit Party" shall mean the Borrower and each Guarantor.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Designated UOH Stockholders" shall mean the Management Investors,
Xxxxx Investment Associates V, L.P. and Xxxxx Equity Partners V, L.P.
"Dividends" shall have the meaning provided in Section 8.09.
"Domestic Subsidiary" shall mean a Subsidiary of the Borrower that
is organized under the laws of the United States or any state thereof.
"Environmental Claims" means any and all administrative, regulatory
or judicial actions, suits, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports
prepared by the Borrower or any of its Subsidiaries solely in the ordinary
course of such Person's business and not in response to any third party
action or request of any kind) or proceedings relating to any Environmental
Law or any permit issued, or any written approval given, under any such
Environmental Law (hereafter, "Claims"), including, without limitation, (a)
any and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to
any applicable Environmental Law, and (b) any and all Claims by any third
party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials arising
from alleged injury or threat of injury to health, safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guide, policy and rule
of common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the
environment, health, safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251 ET SEQ.; the Toxic Substances Control Act, 15
U.S.C. Section 7401 ET SEQ.; the Clean Air Act, 42 U.S.C. Section 7401 ET
SEQ.; the Safe Drinking Water Act, 42 U.S.C. Section 3808 ET SEQ.; the Oil
Pollution Act of 1990, 33 U.S.C. Section 2701 ET SEQ. and any applicable
state and local or foreign counterparts or equivalents.
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"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.
"Excess Cash Flow" shall mean, for any fiscal year, the remainder
of (i) the sum of (x) Adjusted Cash Flow for such fiscal year and (y) the
decrease, if any, in Working Capital from the first day to the last day of
such fiscal year, plus (ii) to the extent not included in (i) above, any
amounts received by the Borrower and its Subsidiaries in settlement of, or in
payment of any judgments resulting from, actions, suits or proceedings with
respect to the Borrower and/or its Subsidiaries from the first day to the
last day of such fiscal year, plus (iii) to the extent not included in (i)
above, any amounts received by the Borrower and/or its Subsidiaries in
connection with the repayment or redemption of any long-term promissory notes
and/or preferred stock of other Persons held by them, minus (iv) the sum of
(x) the amount of Consolidated Capital Expenditures (except to the extent (x)
financed through the incurrence of Indebtedness other than Revolving Loans or
(y) made pursuant to Section 8.05(c)) made during such fiscal year and (y)
the increase, if any, in Working Capital from the first day to the last day
of such fiscal year and (z) any
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repayments or prepayments of the principal amount of (I) Existing
Indebtedness or (II) AR Loans on and after the AR Termination Date pursuant
to Section 4.01 or 4.02(A)(b).
"Existing Indebtedness" shall have the meaning provided in Section
6.21.
"Existing Letters of Credit" shall mean each Letter of Credit under
the Original Credit Agreement that continued as a Letter of Credit under the
Restated Revolving Credit Agreement.
"Expiry Date" shall mean September 30, 2003.
"Facility" shall mean any of the credit facilities established
under this Agreement, I.E., the AR Facility and the Revolving Facility.
"Facing Fee" shall have the meaning provided in Section 3.01(d).
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the
weighted average of the rates on overnight Federal Funds transactions with
members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the Agent from
three Federal Funds brokers of recognized standing selected by the Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to
in, Section 3.01.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement; it being
understood and agreed that determinations in accordance with GAAP for
purposes of Section 8, including defined terms as used therein, are subject
(to the extent provided therein) to Section 12.07(a).
"Guarantor" shall mean and include Holdings and, once created, each
Subsidiary Guarantor.
"Guaranties" shall mean and include the Holdings Guaranty and, once
executed, the Subsidiary Guaranty.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
that contained, electric fluid
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containing levels of polychlorinated biphenyls, and radon gas; and (b) any
chemicals, materials or substances defined as or included in the definition
of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous waste," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any Environmental Law.
"Holdings" shall mean Universal Outdoor Holdings, Inc., a Delaware
corporation.
"Holdings Guaranty" shall mean the Guaranty executed by Holdings in
the form of Exhibit F hereto.
"Holdings Leverage Ratio" shall mean, at any Measurement Date, the
ratio of (x) Consolidated Debt of Holdings on such date to (y) Adjusted
EBITDA of Holdings for the 12-month period (taken as one accounting period)
ending on such date.
"Holdings Pledge Agreement" shall mean the Pledge Agreement
executed by Holdings in the form of Exhibit D hereto.
"Indebtedness" of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase
price of assets or services which in accordance with GAAP would be shown on
the liability side of the balance sheet of such Person, (iii) the face amount
of all letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person,
whether or not such indebtedness has been assumed, (v) all Capitalized Lease
Obligations of such Person, (vi) all obligations of such Person to pay a
specified purchase price for goods or services whether or not delivered or
accepted, I.E., take-or-pay and similar obligations, (vii) all net
obligations of such Person under Interest Rate Agreements and (viii) all
Contingent Obligations of such Person, (other than Contingent Obligations
arising from the guaranty by such Person of the obligations of the Borrower
and/or its Subsidiaries to the extent such guaranteed obligations do not
constitute Indebtedness and are otherwise permitted hereunder) provided that
Indebtedness shall not include trade payables and accrued expenses, in each
case arising in the ordinary course of business.
"Interest Period" with respect to any Loan shall mean the interest
period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, any interest rate cap agreement, any interest rate collar
agreement or other similar agreement or arrangement designed to protect the
Borrower or any Subsidiary against fluctuations in interest rates.
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"Investment" shall mean, with respect to any Person, all
investments by such Person in other Persons (including Affiliates and
Subsidiaries) in the forms of loans, guarantees, advances or capital
contributions (excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Capital Stock or other
securities and all other items that are or would be classified as investments
on a balance sheet prepared in accordance with GAAP.
"Xxxxx" shall mean Xxxxx & Company, L.P., a Delaware limited
partnership doing business as Xxxxx & Company.
"Xxxxx Designees" shall mean Xxxxxxx X. Xxxxxxxx, Xxxx X.
XxXxxxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxx Xxxxxxxx XXX, Xxxxxxx Xxxxxxxx,
Xxxxxxxx Xxxxxx Xxxxx and Xxxxxx X. Xxxxx.
"LaSalle" shall mean LaSalle National Bank.
"Leasehold" of any Person means all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(c).
"Letter of Credit Issuer" shall mean BTCo, LaSalle with respect to
the Existing Letters of Credit and/or any Bank which at the request of the
Borrower and with the consent of the Agent agrees, in such Bank's sole
discretion, to become a Letter of Credit Issuer for purposes of issuing
Letters of Credit pursuant to Section 2.
"Letter of Credit Outstandings" shall mean, at any time, the sum
of, without duplication, (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings in
respect of all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title retention agreement or
any lease in the nature thereof).
"Loan" shall have the meaning provided in Section 1.01.
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"Management Agreements" shall mean those agreements with members
of, or with respect to, the management of Holdings, the Borrower or any
Subsidiary that were made available to the Agent pursuant to Section 5.06 of
the Original Credit Agreement.
"Management Investors" shall mean Xxxxxx Xxxxx and Xxxxx Xxxxxxx.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(B)(b).
"Margin Reduction Discount" shall mean zero, provided that the
Margin Reduction Discount shall be increased to 1/4 of 1%, 3/4 of 1%, 1-1/4%
or 1-3/4%, as the case may be, as specified in clauses (i), (ii), (iii) or
(iv) below, at any time 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 at the Relevant Determination Date the Modified Holdings Leverage Ratio
is less than 3.0 to 1.
The Modified Holdings Leverage Ratio shall be determined (x) for the last day
of a fiscal month, quarter or year, by delivery of an officer's certificate
of the Borrower to the Banks pursuant to Section 7.01(e)(i) and (y) for the
date of the incurrence of Consolidated Debt after delivery of the officer's
certificate referred to in clause (x), by delivery of an officer's
certificate of the Borrower to the Banks pursuant to Section 7.01(e)(ii),
each of which certificates shall set forth the calculation of the Modified
Holdings Leverage Ratio. The Margin Reduction Discount so determined shall
apply, except as set forth below, from five Business Days after the date on
which such officer's certificate is delivered to the Agent to the earlier of
(x) the date on which the next certificate is delivered to the Agent pursuant
to Section 7.01(e)(i) or (ii) and (y) the 30th day following the end of the
fiscal month in which such first certificate was delivered to the Agent
pursuant to Section 7.01(e)(i).
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Notwithstanding anything to the contrary contained above, the Margin
Reduction Discount shall be zero (x) if no officer's certificate has been
delivered to the Banks pursuant to Section 7.01(e) (i) which sets forth the
Modified Holdings Leverage Ratio for the Relevant Determination Date or the
financial statements upon which any such calculations are based have not been
delivered, until such a certificate and/or financial statements are delivered
and (y) at all times when there shall exist a violation of Section 9.01 or an
Event of Default. It is understood and agreed that the Margin Reduction
Discount as provided above shall in no event be cumulative and only the
Margin Reduction Discount applicable under either clause (i), (ii), (iii) or
(iv), if any, contained in this definition shall be applicable.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on
the business, property, assets, liabilities, operations, condition (financial
or otherwise) or prospects of (x) Holdings and its Subsidiaries taken as a
whole and/or (y) the Borrower and its Subsidiaries taken as a whole.
"Maximum Swingline Amount" shall mean $5,000,000.
"Measurement Date" shall mean (x) the last day of each fiscal
quarter of the Borrower and (y) the last day of the last month ended prior to
the date of a Tested Borrowing.
"Minimum Borrowing Amount" shall mean (i) for AR Loans and
Revolving Loans maintained as Base Rate Loans, $500,000, (ii) for Loans
maintained as Eurodollar Loans, $1,000,000 and (iii) for Swingline Loans,
$250,000.
"Modified Additional Cap Ex" shall mean for any fiscal year the sum
of (i) the Additional Cap Ex for such fiscal year plus (ii) the Adjusted
Additional Cap Ex for the preceding fiscal year.
"Modified 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.
"Mortgage" shall mean the mortgages, deeds and trust and similar
documents executed and delivered pursuant to the Original Credit Agreements
and amended as provided in the Restated Acquisition Credit Agreement.
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"Mortgaged Properties" shall mean the Real Properties subject to
the Mortgages.
"Net Cash Proceeds" shall mean, with respect to any Asset Sale, the
Cash Proceeds resulting therefrom net of expenses of sale or recovery
(including payment of principal, premium and interest of Indebtedness secured
by the assets which are the subject of the Asset Sale and required to be, and
which is, repaid under the terms thereof as a result of such Asset Sale), and
incremental taxes paid or payable as a result thereof.
"New Mortgage" shall have the meaning provided in Section 7.10.
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Note" shall mean and include each AR Note, each Revolving Note and
the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Agent at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the Agent may designate to
the Borrower from time to time.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time
existing, owing to the Agent, the Collateral Agent or any Bank pursuant to
the terms of this Agreement or any other Credit Document.
"Original Credit Agreements" shall mean and include each of the
Acquisition Credit Agreement and the Revolving Credit Agreement, each dated
as of March 29, 1996, and as in effect immediately prior to the effectiveness
of the Restated Credit Agreements.
"Participant" shall have the meaning provided in Section 2.05(a).
"Payment Office" shall mean the office of the Agent at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the Agent may designate to
the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
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"Permitted Acquisition" shall mean any acquisition (including
through a stock acquisition) of property or assets of a nature or type, or
which will be used in a business, permitted to be held or engaged in by
Section 8.01 provided that (x) the Holdings Leverage Ratio as of the last
Measurement Date prior to the consummation of such acquisition was less than
5.50 to 1.0 determined on a pro forma basis as if the Permitted Acquisition
and the related borrowings were consummated on the first day of the 12-month
period ending on such Measurement Date and giving effect to pro forma
adjustments to the Consolidated EBITDA of the Person being acquired to give
effect to contemplated cost savings as estimated in good faith by the
Borrower and agreed to by the Agent, or (y) aggregate amount expended for all
such acquisitions after the Restatement Effective Date to the extent not
effected in compliance with clause (x) above or clause (z) below does not
exceed $50,000,000 or (z) consented to in writing by the Super-Majority Banks.
"Permitted Asset Sale" shall mean an Asset Sale (x) permitted by
the expressed language of Section 8.02 (and not by the parenthetical in the
lead in paragraph of Section 8) and (y) resulting from a casualty or taking
of assets of the Borrower or any Subsidiary.
"Permitted Encumbrances" shall mean, with respect to the Mortgaged
Property, such exceptions to title as are set forth in the title insurance
policy or title commitment delivered with respect thereto, all of which
exceptions must be reasonably acceptable to the Agent.
"Permitted Holders" means Xxxxx and its Affiliates, the Xxxxx
Designees, the Management Investors, any employee stock ownership plan
established by the Borrower for the benefit of the employees of the Borrower
or any Subsidiary and their Permitted Transferees.
"Permitted Holdings Debt" shall mean debt of Holdings, subordinated
to Holdings' obligations under the Holdings Guaranty, issued by Holdings
after the Consolidation Date provided that (i) all proceeds of such debt
shall be contributed as common capital to the Borrower, (ii) the terms and
conditions (other than the issuer, pricing (including whether cash pay or
pay-in-kind) and maturities, provided that no scheduled payment of principal
or any one-time cash payment of all accreted interest under a pay-in-kind
issue, shall be due and payable prior to the Final Maturity Date) are (in the
reasonable opinion of the Agent) substantially the same as, or no more
adverse to the interests of the Banks than, those contained in the Permitted
Subordinated Debt or are consented to by the Required Banks, (iii) such debt
shall not be guaranteed by the Borrower or any of its Subsidiaries and (iv)
the Permitted Holdings Debt shall not exceed in the aggregate (x) $150
million less (y) the aggregate principal amount of Additional Subordinated
Debt.
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"Permitted Investments" shall mean (a) cash and Cash Equivalents,
(b) Investments in Subsidiary Guarantors, (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 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 arising in the ordinary course
of business.
"Permitted Liens" shall mean Liens described in clauses (a), (b)
and (d) of Section 8.03.
"Permitted Subordinated Debt" shall mean the $225 million principal
amount of Senior Subordinated Notes, due 2006, issued by the Borrower on
October 11, 1996.
"Permitted Subordinated Debt Documents" shall mean all indentures,
agreements, notes and other instruments governing or evidencing Permitted
Subordinated Debt as in effect on the Consolidation Date.
"Permitted Transferees" means (i) in the case of Xxxxx, (A) any
Affiliate thereof (other than any corporation or other Person (except for any
corporation or other Person engaged in a business similar, complementary or
related to the nature or type of the business of Holdings and its
Subsidiaries) controlled by, or any investment fund (other than Xxxxx
Investment Associates V, L.P. or any investment fund that is solely comprised
of current and former professionals of Xxxxx) managed by, Xxxxx), (B) any
managing director, general partner, limited partner, director, officer or
employee of Xxxxx or any Affiliate thereof (collectively, "Xxxxx
Associates"), (C) the heirs, executors, administrators, testamentary
trustees, legatees or beneficiaries of any Xxxxx Associate or Xxxxx Designee
and (D) any trust, the beneficiaries of which, or a corporation or
partnership, the stockholders or partners of which, include only a Xxxxx
Associate or Xxxxx Designee, his spouse, parents, siblings, or direct lineal
descendants, and (ii) in the case of any Management Investors, (A) his
executor, administrator, testamentary trustee, legatee or beneficiaries, (B)
his spouse, parents, siblings, members of his or her immediate family
(including adopted children) and/or direct lineal descendants or (C) a trust,
the beneficiaries
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of which, or a corporation or partnership, the stockholders or partners of
which, include only the Management Investor, as the case may be, and his
spouse, parents, siblings, members of his or her immediate family (including
adopted children) and/or direct lineal descendants.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise or any government
or political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multi-employer or single-employer plan as
defined in Section 4001 of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of) Holdings, the Borrower,
a Subsidiary or an ERISA Affiliate, and each such plan for the five year
period immediately following the latest date on which Holdings, the Borrower,
a Subsidiary, or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"Pledge Agreements" shall mean the Borrower Pledge Agreement, the
Holdings Pledge Agreement and, once executed, the Subsidiary Pledge
Agreement.
"Pledged Securities" shall mean all the Pledged Securities as
defined in the relevant Pledge Agreement.
"Prime Lending Rate" shall mean the rate which Bankers Trust
Company announces from time to time as its prime lending rate, the Prime
Lending Rate to change when and as such prime lending rate changes. The
Prime Lending Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. Bankers Trust Company
may make commercial loans or other loans at rates of interest at, above or
below the Prime Lending Rate.
"RC Commitment Commission" shall have the meaning provided in
Section 3.01(b).
"RC Percentage" shall mean at any time for each Bank with a
Revolving Commitment the percentage obtained by dividing such Bank's
Revolving Commitment by the Total Revolving Commitment, PROVIDED that if the
Total Revolving Commitment has been terminated, the RC Percentage of each
Bank shall be determined by dividing such Bank's Revolving Commitment
immediately prior to such termination by the Total Revolving Commitment
immediately prior to such termination.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C.
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"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.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof establishing margin requirements.
"Reinvestment Assets" shall mean any assets to be employed in the
business of the Borrower and its Subsidiaries as permitted by Section 8.01.
"Reinvestment Election" shall have the meaning provided in Section
4.02(A)(c).
"Reinvestment Notice" shall mean a written notice signed by an
Authorized Officer of the Borrower stating that the Borrower, in good faith,
intends and expects to use all or a specified portion of the Net Cash
Proceeds of a Permitted Asset Sale to purchase, construct or otherwise
acquire Reinvestment Assets.
"Reinvestment Prepayment Amount" shall mean, with respect to any
Reinvestment Election, the amount, if any, on the Reinvestment Prepayment
Date relating thereto by which (a) the Anticipated Reinvestment Amount in
respect of such Reinvestment Election exceeds (b) the aggregate amount
thereof expended by the Borrower and its Subsidiaries to acquire Reinvestment
Assets.
"Reinvestment Prepayment Date" shall mean, with respect to any
Reinvestment Election, the earliest of (i) the date, if any, upon which the
Agent, on behalf of the Required Banks, shall have delivered a written
termination notice to the Borrower, provided that such notice may only be
given while an Event of Default exists, (ii) the date occurring 180 days
after such Reinvestment Election and (iii) the date on which the Borrower
shall have determined not to, or shall have otherwise ceased to, proceed with
the purchase, construction or other acquisition of Reinvestment Assets with
the related Anticipated Reinvestment Amount.
"Relevant Determination Date" shall mean, at any time, (x) the last
day of the then most recently ended fiscal month, quarter or year of Holdings
with respect to which an officer's certificate has been, or is required to
be, delivered to the Banks pursuant to Section 7.01(e)(i) or (y) if the
Margin Reduction Discount is then greater than zero, the
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last date subsequent to the date specified in clause (x) on which any
Consolidated Debt of Holdings and its Subsidiaries has been incurred.
"Reportable Event" shall mean an event described in Section 4043(c)
of ERISA with respect to a Plan as to which the 30-day notice requirement has
not been waived by the PBGC.
"Required Banks" shall mean Non-Defaulting Banks whose AR
Commitments (or, if after the AR Termination Date, outstanding AR Loans) and
Revolving Commitments (or if terminated, as in effect immediately prior to
such termination) constitute greater than 50% of the sum of (i) the Adjusted
Total AR Commitment (or, if after the AR Termination Date, the total
outstanding AR Loans of Non-Defaulting Banks) and (ii) the Revolving
Commitments (or if terminated, as in effect immediately prior to such
termination) of all Non-Defaulting Banks.
"Restated Acquisition Credit Agreement" shall mean the Amendment
and Restatement dated as of October 8, 1996 to Acquisition Credit Agreement
dated as of March 29, 1996 among the Borrowers and the Banks party thereto,
as in effect immediately prior to the Consolidation Date.
"Restated Credit Agreements" shall mean and include the Restated
Acquisition Credit Agreement and the Restated Revolving Credit Agreement.
"Restated Revolving Credit Agreement" shall mean the Amendment and
Restatement dated as of October 8, 1996 to Revolving Credit Agreement dated
as of March 29, 1996 among the Borrower and the Banks party thereto, as in
effect immediately prior to the Consolidation Date.
"Restatement Effective Date" shall have the meaning provided in the
Restated Acquisition Credit Agreement (i.e., October 8, 1996).
"Revolving Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I hereto directly below
the column entitled "Revolving Commitment," as the same may be (x) reduced
from time to time pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted
from time to time as a result of assignments to or from such Bank pursuant to
Section 12.04.
"Revolving Facility" shall mean the Facility evidenced by the Total
Revolving Commitments.
"Revolving Loan" shall have the meaning provided in Section
1.01(A)(b).
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"Revolving Note" has the meaning provided in Section 1.05(a).
"Scheduled Repayment" shall have the meaning provided in Section
4.02(A)(b).
"SEC" shall have the meaning provided in Section 7.01(h).
"SEC Regulation D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"Security Agreement" shall mean the Security Agreement executed and
delivered by the Borrower in the form of Exhibit E hereto.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Documents" shall mean each Pledge Agreement, the Security
Agreement, each Mortgage and, once executed, each Additional Mortgage, each
New Mortgage and the Subsidiary Security Agreement.
"Senior Leverage Ratio" shall mean, at any Measurement Date, the
ratio of (x) Consolidated Senior Debt of the Borrower on such date to (y)
Adjusted EBITDA of the Borrower for the 12-month period (taken as one
accounting period) ending on such date.
"Shareholders' Agreements" shall mean the agreements entered into
by Holdings or any Subsidiary governing its capital stock and/or by
shareholders relating to any such entity or its capital stock that were made
available to the Agent pursuant to Section 5.06 of the Original Credit
Agreements.
"Xxxxx Note" shall have the meaning provided in Section 8.04(g).
"Stated Amount" of each Letter of Credit shall mean the maximum
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Subordinated Debt" shall mean and include the Permitted
Subordinated Debt, the Additional Subordinated Debt and the Permitted
Holdings Debt, in each case once issued.
"Subordinated Debt Documents" shall mean and include the Permitted
Subordinated Debt Documents and the execution version of all indentures,
agreements,
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notes and instruments governing, or evidencing, Additional Subordinated Debt
and/or Permitted Holdings Debt.
"Subordinated Debt Indentures" shall mean the indentures governing
Permitted Subordinated Debt, Additional Subordinated Debt and/or Permitted
Holdings Debt.
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having by
the terms thereof ordinary voting power to elect a majority of the directors
of such corporation (irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such
Person directly or indirectly through Subsidiaries and (ii) any partnership,
association, joint venture or other entity in which such Person directly or
indirectly through Subsidiaries, has more than a 50% equity interest at the
time. Unless otherwise expressly provided, all references herein to
"Subsidiary" shall mean a Subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean each Domestic Subsidiary created
after the Consolidation Date that executes and delivers a counterpart of the
Subsidiary Guaranty, provided that at such time such Subsidiary also executes
and delivers a Subsidiary Pledge Agreement and a Subsidiary Security
Agreement, and takes such actions with respect thereto as the Administrative
Agent reasonably requests to perfect the Liens granted thereunder.
"Subsidiary Guaranty" shall mean a guaranty agreement in form and
substance satisfactory to the Agent guaranteeing the obligations.
"Subsidiary Pledge Agreement" shall mean a pledge agreement in form
substantially the same as the Borrower Pledge Agreement and otherwise
reasonably satisfactory to the Agent.
"Subsidiary Security Agreement" shall mean a security agreement in
form substantially the same as the Security Agreement and otherwise
reasonably satisfactory to the Agent.
"Super-Majority Banks" shall mean the Non-Defaulting Banks which
would constitute the Required Banks if the reference to "50%" in the
definition of Required Banks were to read "66 2/3%."
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Expiry Date.
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"Swingline Loan" shall have the meaning provided in Section
1.01(B)(a).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement dated
as of November 18, 1993 between the Borrower and Holdings in the form
delivered to the Banks prior to the Restatement Effective Date and as the
same may be modified with the consent of the Required Banks.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tested Borrowing" shall mean any incurrence of AR Loans or
Revolving Loans after the Consolidation Date in which the aggregate amount of
AR Loans or Revolving Loans incurred, when added to the aggregate amount of
AR Loans and Revolving Loans incurred during the immediately preceding 30 day
period (to the extent (x) incurred after the Consolidation Date, (y) still
outstanding and (z) not included in establishing an earlier Tested
Borrowing), equal or exceed $1,000,000.
"Total AR Commitment" shall mean the sum of the AR Commitments of
each of the Banks.
"Total Commitment" shall mean the sum of the Total AR Commitment
and the Total Revolving Commitment.
"Total Revolving Commitment" shall mean the sum of the Revolving
Commitments of each of the Banks.
"Transaction" shall mean (i) the Acquisition and (ii) the entering
into and borrowing under the Restated Credit Agreements.
"Transaction Documents" shall mean the Acquisition Documents and
the Credit Documents.
"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 Xxxxx or its Affiliates permitted
hereunder; attorney's fees, accountants' fees, placement agents' fees,
discounts and commissions and brokerage, and consultant fees. Transaction
Expenses shall include the amortization of any such fees and expenses that
are capitalized and not classified as an expense on the date incurred.
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"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, I.E., a Base Rate Loan or Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits
under the Plan as of the close of its most recent plan year determined in
accordance with Statement of Financial Accounting Standards No. 35, based
upon the actuarial assumptions used by the Plan's actuary in the most recent
annual valuation of the Plan, exceeds the fair market value of the assets
thereof, determined in accordance with Section 412 of the Code.
"Unpaid Drawings" shall have the meaning provided in Section 2.04(a).
"Unutilized Revolving Commitment" for any Bank at any time shall
mean the excess of (i) the Revolving Commitment of such Bank over (ii) the
sum of (x) the aggregate outstanding principal amount of Revolving Loans made
by such Bank plus (y) an amount equal to such Bank's Adjusted RC Percentage
of the Letter of Credit Outstandings at such time.
"Unutilized Total Revolving Commitment" shall mean, at any time,
(i) the Total Revolving Commitment at such time less (ii) the sum of the
aggregate principal amount of all Revolving Loans and Swingline Loans at such
time plus the Letter of Credit Outstandings at such time.
"Working Capital" shall mean the excess of Consolidated Current
Assets over Consolidated Current Liabilities.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
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
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thereof and such other powers as are reasonably incidental thereto. The
Agent may perform any of its duties hereunder by or through its respective
officers, directors, agents, employees or affiliates. The Co-Agent shall
have no duties or liabilities in acting in such capacity hereunder.
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 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
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Credit Document, the Agent shall be entitled to refrain from such act or
taking such action unless and until the Agent shall have received
instructions from the Required Banks (or, where applicable, the
Super-Majority Banks); and the Agent shall not incur liability to any Person
by reason of so refraining. Without limiting the foregoing, neither any Bank
nor the holder of any Note shall have any right of action whatsoever against
the Agent as a result of the Agent acting or refraining from acting hereunder
or under any other Credit Document in accordance with the instructions of the
Required Banks (or, where applicable, the Super-Majority Banks).
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," "Required Banks," "Letter of Credit Issuer",
"Super-Majority Banks," "holders of Notes" or any similar terms shall, unless
the context clearly otherwise indicates, include the Agent in its individual
capacity. The Agent may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with the Borrower or
any Affiliate of the Borrower as if it were not performing the duties
specified herein, and may accept fees and other consideration from the
Borrower for services in connection with this Agreement and otherwise without
having to account for the same to the Banks.
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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.
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 and the Co-Agent in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and
any amendment, waiver or consent relating thereto (including, without
limitation, the reasonable fees and disbursements of their respective
counsel) and of the Agent, the Co-Agent and each of the Banks in connection
with the enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, the
reasonable fees and disbursements of counsel for the Agent, the Co-Agent and
for each of the Banks); (ii) pay and hold each of the Banks
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harmless from and against any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save each of the
Banks harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable
to such Bank) to pay such taxes; and (iii) indemnify each Bank (including in
its capacity as the Agent or Co-Agent), its officers, directors, employees,
representatives and agents from and hold each of them harmless against any
and all losses, liabilities, claims, damages or expenses incurred by any of
them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or
not any Bank is a party thereto) related to the entering into and/or
performance of any Transaction Document or the use of the proceeds of any
Loans hereunder or the Transaction or the consummation of any transactions
contemplated in any Credit Document, or (b) the actual or alleged presence of
Hazardous Materials in the air, surface water or groundwater or on the
surface or subsurface of any Real Property owned or at any time operated by
the Borrower or any of its Subsidiaries, the release, generation, storage,
transportation, handling or disposal of Hazardous Materials at any location,
whether or not owned or operated by the Borrower or any of its Subsidiaries,
the non-compliance of any Real Property with foreign, federal, state and
local laws, regulations, and ordinances (including applicable permits
thereunder) applicable to any Real Property, or any Environmental Claim
asserted against the Borrower, any of its Subsidiaries or any Real Property
owned or at any time operated by the Borrower or any of its Subsidiaries,
including, in each case, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified).
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.
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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.
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 Commitment over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Commitment, or a mandatory prepayment, shall not
constitute a change in the terms of any Commitment), (ii) release all or
substantially all of the Collateral or (iii) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement or any other Credit Document.
(b) Notwithstanding the foregoing, (x) any Bank may assign all or
a portion of its outstanding Loans, AR Commitment and/or Revolving Commitment
and its rights and obligations hereunder to another Bank, and (y) with the
consent of the Agent and the Borrower (which consents shall not be
unreasonably withheld), any Bank may assign all or
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a portion of its outstanding Loans, AR Commitment and/or Revolving Commitment
and its rights and obligations hereunder to one or more commercial banks or
other financial institutions (including one or more Banks), provided that all
assignments hereunder must be PRo RATA between the Revolving Commitments and
Revolving Loans, on one hand and the AR Commitments and AR Loans on the other
hand. No assignment pursuant to the immediately preceding sentence shall to
the extent such assignment represents an assignment to an institution other
than one or more Banks hereunder, be in an aggregate amount less than
$5,000,000 unless the entire Loans and Commitment of the assigning Bank are
so assigned. If any Bank so sells or assigns all or a part of its rights
hereunder or under the Notes, any reference in this Agreement or the Notes to
such assigning Bank shall thereafter refer to such Bank and to the respective
assignee to the extent of their respective interests and the respective
assignee shall have, to the extent of such assignment (unless otherwise
provided therein), the same rights and benefits as it would if it were such
assigning Bank. Each assignment pursuant to this Section 12.04(b) shall be
effected by the assigning Bank and the assignee Bank executing an Assignment
Agreement substantially in the form of Exhibit H (appropriately completed).
In the event of any such assignment (x) to a commercial bank or other
financial institution not previously a Bank hereunder, either the assigning
or the assignee Bank shall pay to the Agent a nonrefundable assignment fee of
$3,500 and (y) to a Bank, either the assigning or assignee Bank shall pay to
Agent a nonrefundable assignment fee of $2,000, and at the time of any
assignment pursuant to this Section 12.04(b), (i) Annex I shall be deemed to
be amended to reflect the Commitment of the respective assignee (which shall
result in a direct reduction to the Commitment of the assigning Bank) and of
the other Banks, and (ii) the Borrower will issue new Notes to the respective
assignee and to the assigning Bank in conformity with the requirements of
Section 1.05. Each Bank and the Borrower agree to execute such documents
(including without limitation amendments to this Agreement and the other
Credit Documents) as shall be necessary to effect the foregoing. Nothing in
this clause (b) shall prevent or prohibit any Bank from pledging its Notes or
Loans to a Federal Reserve Bank in support of borrowings made by such Bank
from such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section 12.04, no
transfer or assignment of the interests or obligations of any Bank hereunder
or any grant of participation therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration
statement with the SEC or to qualify the Loans under the "Blue Sky" laws of
any State.
(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
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preceding clauses (a) and (b), the disposition of any promissory notes or
other evidences of or interests in Indebtedness held by such Bank shall at
all times be within its exclusive control.
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 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as its agent for service of process in respect of any such
action or proceeding. Nothing herein shall affect the right of the Agent or
any Bank to serve process 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.
12.12 AMENDMENT OR WAIVER. Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the Borrower and the Required Banks, provided that no
such change, waiver, discharge or termination shall, without the consent of
each Bank (other than a Defaulting Bank) affected thereby, (i) extend the AR
Maturity Date, the AR Termination Date or the Expiry Date, as the case may be
(it being understood that any waiver of the application of any prepayment of
or the method of application of any prepayment to the amortization of, the
Loans shall not constitute any such extension), or reduce the rate or extend
the time of payment of interest (other than as a result of waiving the
applicability of any post-default increase in interest rates) or Fees
thereon, or reduce the principal amount thereof, or increase the Commitment
of any Bank over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of Default, or of a mandatory reduction in
the Total Commitment, shall not constitute a change in the terms of any
Commitment of any Bank), (ii) release or permit the release of all or
substantially all of the Collateral except as expressly provided in the
Credit Documents, (iii) amend, modify or waive any provision of this Section
12.12, (iv) reduce the percentage specified in, or otherwise modify, the
definition of Required Banks or (v) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement
provided further that no such change, waiver, discharge or termination shall
without the consent of the Super-Majority Banks change directly or indirectly
the definition of Permitted Acquisition or
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Super-Majority Banks, extend the date of payment of, or reduce the amount of,
any Scheduled Repayment, or release Holdings from the Holdings Guaranty
and/or release the Borrower's stock pledged under the Holdings Pledge
Agreement. No provision of Section 11 may be amended without the consent of
the Agent and to the extent any such amendment would affect the Co-Agent
solely in its capacity as such, the Co-Agent, no provision of Section 2 may
be amended without the consent of the Letter of Credit Issuer affected
thereby and no provision of Section 1.01(B)(a) or (b) or any other provision
applicable to Swingline Loans may be amended without the consent of BTCo.
12.13 SURVIVAL. All indemnities set forth herein including,
without limitation, in Section 1.10, 1.11, 2.06, 4.04, 11.06 or 12.01 shall
survive the execution and delivery of this Agreement and the making and
repayment of the Loans.
12.14 DOMICILE OF LOANS. Each Bank may transfer and carry its
Loans at, to or for the account of any branch office, subsidiary or affiliate
of such Bank, provided that the Borrower shall not be responsible for costs
arising under Section 1.10, 2.06 or 4.04 resulting from any such transfer
(other than a transfer pursuant to Section 1.12) to the extent not otherwise
applicable to such Bank prior to such transfer.
12.15 CONFIDENTIALITY. Subject to Section 12.04, the Banks shall
hold all non-public information obtained pursuant to the requirements of this
Agreement which has been identified as such by the Borrower in accordance
with its customary procedure for handling confidential information of this
nature and in accordance with safe and sound banking practices and in any
event may make disclosure reasonably required by any bona fide transferee or
participant in connection with the contemplated transfer of any Loans or
participation therein (so long as such transferee or participant agrees to
abide by the provisions of this Section 12.15) or as required or requested by
any governmental agency or representative thereof or pursuant to legal
process, provided that, unless specifically prohibited by applicable law or
court order, each Bank shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Bank by
such governmental agency) for disclosure of any such non-public information
prior to disclosure of such information, and provided further that in no
event shall any Bank be obligated or required to return any materials
furnished by the Borrower or any Subsidiary.
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ANNEX I
-------
COMMITMENTS
-----------
AR Revolving
Bank Commitment Commitment
---- ---------- ----------
Bankers Trust $24,083,333 $1,416,667
Company
La Salle National 24,083,333 1,416,667
Bank
Bank of America 23,611,111 1,388,889
Illinois
First National 23,611,111 1,388,889
Bank of Boston
Union Bank of 23,611,111 1,388,889
California, N.A.
The Bank of New 10,388,889 611,111
York
Banque Paribas 10,388,889 611,111
Credit Lyonnais 10,388,889 611,111
The First National 10,388,889 611,111
Bank of Chicago
Fleet Bank, N.A. 10,388,889 611,111
Xxxxxx Financial, Inc. 10,388,889 000,000
Xxxxx Xxxxxx Bank and 10,388,889 611,111
Trust Company
ANNEX I
Page 2
AR Revolving
Bank Commitment Commitment
---- ---------- ----------
Sun Trust Bank 10,388,889 611,111
Xxx Xxxxxx American 10,388,889 611,111
Capital Prime Rate
------------ -----------
Total: $212,500,000 $12,500,000
------------ -----------
------------ -----------
ANNEX II
--------
BANK ADDRESSES
--------------
Bankers Trust Company 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
La Salle National Bank 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Bank of America Illinois 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
First National Bank of Boston Mail Stop 01-08-08
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Union Bank 000 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
The Bank of New York Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Banque Paribas 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Vuarchex
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Credit Lyonnais 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
The First National Bank of Chicago Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Fleet Bank, N.A. 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Xxxxxx Financial, Inc. 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
State Street Bank and Trust Company 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Tel. No.: (000) 000-0000
Sun Trust Bank Mail Code XX-Xxxxxxx-0000
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Xxx Xxxxxx American Capital One Parkview Plaza
Prime Rate Income Trust Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
ANNEX III
---------
GOVERNMENT APPROVALS
--------------------
ANNEX IV
--------
SUBSIDIARIES
------------
ANNEX V
-------
PROPERTIES
----------
ANNEX VI
--------
EXISTING INDEBTEDNESS
---------------------
ANNEX VII
---------
INSURANCE POLICIES
------------------
ANNEX VIII
----------
EXISTING LIENS
--------------
ANNEX IX
--------
MANAGEMENT FEES
---------------
None
