<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996
or
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission file number 33-64638
OUTDOOR SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 86-0736400
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation)
2502 N. BLACK CANYON HIGHWAY, PHOENIX, ARIZONA 85009
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (602) 246-9569
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
Number of Common Shares outstanding at November 13, 1996: 26,770,404 SHARES.
<PAGE> 2
CONTENTS
<TABLE>
<CAPTION>
PAGE
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<S> <C>
Condensed Consolidated Balance Sheets September 30, 1996 (unaudited) and
December 31, 1995.......................................................... 1
Condensed Unaudited Consolidated Statements of Operations for the Three
and Nine Months ended September 30, 1996 and 1995.......................... 2
Condensed Unaudited Consolidated Statements of Cash Flows for the Nine
Months ended September 30, 1996 and 1995................................... 3
Notes to Condensed Consolidated Financial Statements............................. 4
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS........................................ 6
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K........................................... 9
SIGNATURES ......................................................................... 10
</TABLE>
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PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
OUTDOOR SYSTEMS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
SEPTEMBER DECEMBER
30, 31,
1996 1995
--------- ---------
(Unaudited)
ASSETS
Current Assets:
<S> <C> <C>
Cash and cash equivalents $ 12,655 $ 1,739
Accounts receivable, net 50,420 10,971
Prepaid lease rents 17,760 1,691
Prepaid expenses and other 10,571 1,028
-------- ---------
Total current assets 91,406 15,429
-------- ---------
Property and Equipment, net 731,932 111,729
Perpetual Land Easement 23,710
Note receivable, Prepaid Land Leases and Other 7,173 981
Deferred Financing Costs 22,704 4,275
Deferred Income Taxes 9,002 5,255
Intangibles 61,544 544
-------- ---------
$947,471 $ 138,213
======== =========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY)
Current Liabilities:
Accounts payable $ 7,412 $ 642
Accrued interest 1,477 4,843
Accrued expenses and other liabilities 10,303 1,173
Current maturities of long-term debt 20,925 550
-------- ---------
Total current liabilities 40,117 7,208
Long-term Debt 581,698 141,719
Deferred Income Taxes 35,295
Other Long-term Obligations 3,358 984
-------- ---------
Total liabilities 660,468 149,911
-------- ---------
Common Stock - Subject to Put Option 3,420
---------
Redeemable Preferred Stock 13,649
Common Stockholders' Equity (Deficiency) 287,003 (28,767)
-------- ---------
$947,471 $ 138,213
======== =========
</TABLE>
See notes to condensed consolidated financial statements.
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OUTDOOR SYSTEMS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
--------------------- ---------------------
1996 1995 1996 1995
---- ---- ---- ----
REVENUES:
<S> <C> <C> <C> <C>
Outdoor advertising $ 46,645 $ 19,787 $ 88,575 $ 53,996
Manufacturing and license fees 1,656 1,953
------------ ------------ ------------ ------------
Gross Revenues 48,301 19,787 90,528 53,996
Less agency commissions and discounts 6,532 2,901 12,232 7,372
------------ ------------ ------------ ------------
Net Revenues 41,769 16,886 78,296 46,624
------------ ------------ ------------ ------------
OPERATING EXPENSES:
Direct advertising 22,285 7,798 38,436 22,394
General and administrative 2,787 982 5,000 2,990
Depreciation and amortization 5,888 2,520 11,147 7,478
------------ ------------ ------------ ------------
30,960 11,300 54,583 32,862
------------ ------------ ------------ ------------
Gain on 1996 Sale 7,344 7,344
------------ ------------ ------------ ------------
Operating income 18,153 5,586 31,057 13,762
INTEREST EXPENSE 9,340 4,019 17,269 13,036
------------ ------------ ------------ ------------
Income before items set forth below 8,813 1,567 13,788 726
INCOME TAX PROVISION 3,646 167 5,636 167
------------ ------------ ------------ ------------
Income before extraordinary loss 5,167 1,400 8,152 559
EXTRAORDINARY LOSS - EARLY
REDEMPTION OF DEBT (12,387) (13,230)
------------ ------------ ------------ ------------
Net income (loss) $ (7,220) $ 1,400 $ (5,078) $ 559
============ ============ ============ ============
LESS STOCK DIVIDENDS,
ACCRETIONS AND DISCOUNTS
ON REDEMPTIONS 675 3,461 1,870
------------ ------------ ------------ ------------
NET INCOME (LOSS) ATTRIBUTABLE TO
COMMON SHAREHOLDERS $ (7,220) $ 725 $ (8,539) $ (1,311)
============ ============ ============ ============
NET INCOME (LOSS) PER COMMON
AND EQUIVALENT SHARE:
Income (loss) before extraordinary loss $ .23 $ .04 $ .26 $ (.08)
Extraordinary loss (.56) (.74)
------------ ------------ ------------ ------------
Net income (loss) per common share $ (.33) $ .04 $ (.48) $ (.08)
============ ============ ============ ============
Weighted average number of shares 22,142,027 16,834,464 17,786,816 16,834,464
============ ============ ============ ============
</TABLE>
See notes to condensed consolidated financial statements.
2
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OUTDOOR SYSTEMS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30,
----------------------
1996 1995
--------- --------
OPERATING ACTIVITIES:
<S> <C> <C>
Net loss $ (5,078) $ 559
Extraordinary loss 13,230
Gain on 1996 Sale (7,344)
Increase in deferred taxes (3,747)
Amortization of discounts on notes payable 1,639 268
Depreciation and amortization 11,147 7,478
Changes in assets and liabilities:
Decrease in accounts receivable 8,742 4,658
Decrease in prepaid expenses and other 1,625 962
Increase in note receivable (6,440)
Decrease in deferred financing costs 963 1,021
Increase (decrease) in accrued interest (3,384) (3,135)
Increase (decrease) in accounts payable and other liabilities 3,041 (982)
--------- --------
Net Cash Provided by Operating Activities 14,394 10,829
--------- --------
INVESTING ACTIVITIES:
Capital expenditures (5,336) (6,847)
Investment in Bus Benches (1,817)
1996 Sale 9,290
Acquisition of Gannett Outdoor (712,987)
Acquisition of perpetual easements (21,525)
--------- --------
Net Cash Used in Investing Activities (732,375) (6,847)
--------- --------
FINANCING ACTIVITIES:
Proceeds from long-term debt 696,655 10,668
Principal payments on long-term debt and capital leases (133,340) (15,902)
Cash dividends paid on preferred stock (293) (634)
Redemption of preferred and exchangeable preferred stock (16,369)
Redemption of 10 3/4% Senior Notes (137,851)
Issuance of common stock 320,120
Exchange rate adjustment (25)
--------- --------
Net Cash Provided by (Used in) Financing Activities 728,897 (5,868)
--------- --------
NET (DECREASE) INCREASE IN CASH AND CASH
EQUIVALENTS 10,916 (1,886)
CASH AND CASH EQUIVALENTS - BEGINNING 1,739 3,658
--------- --------
CASH AND CASH EQUIVALENTS - ENDING $ 12,655 $ 1,772
========= ========
</TABLE>
See notes to condensed consolidated financial statements.
3
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OUTDOOR SYSTEMS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have
been prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and Rule
10-01 of Regulation S-X. Accordingly, they do not include all of the information
and notes required by generally accepted accounting principles for complete
financial statements. In the opinion of Management, all adjustments and
reclassifications considered necessary for a fair and comparable presentation
have been included and are of a normal recurring nature. Operating results for
the three and nine months ended September 30, 1996, are not necessarily
indicative of the results that may be expected for the year ending December 31,
1996. The enclosed financial statements should be read in conjunction with the
consolidated financial statements and notes thereto included in the Company's
Form 10- K/A2 filed with the Securities Exchange Commission on March 31, 1996.
NOTE 2 - INITIAL PUBLIC OFFERING
On April 24, 1996, the Company completed an initial public offering ("IPO")
of its common stock. The holders of the Common Stock Subject to Put Option sold
their shares in the IPO, resulting in the liability representing the Common
Stock Subject to Put Option being credited to stockholders' equity. The Company
utilized a portion of the net proceeds from the IPO to redeem at par or face
value all of the outstanding Class A Preferred Stock and the 1990 Subordinated
Notes which are also held by these shareholders. The Company utilized the
remaining portion of the net proceeds to redeem at par value all of the
outstanding Class B Preferred Stock, the Junior Subordinated Exchange Notes, and
repay $17.0 million of the Senior Credit Facility.
In connection with the IPO, the Company's Board of Directors adopted a
resolution which on April 17, 1996, increased the authorized number of common
shares to 60,000,000 and split the common stock 36.4535 for 1. In addition, the
Board of Directors authorized the issuance of 12,000,000 shares of preferred
stock, the terms of which will be designated at the time of issuance. All per
share information in these financial statements has been adjusted to give effect
to this split.
Upon completion of the IPO, the Company issued options for 807,516 common
shares to key employees at an exercise price equal to the IPO price. Such
options will vest over a four year period.
NOTE 3 - ACQUISITIONS AND SALE
Gannett Outdoor Acquisition - On August 22, 1996, the Company purchased (the
"Gannett Outdoor Acquisition") substantially all of the assets of Gannett
Outdoor, including the stock of certain indirect subsidiaries of Gannett Co.,
Inc. for approximately $640 million in cash, plus the net book value of working
capital and certain other specified assets of the Division (which net book value
is approximately $60 million). This acquisition has been accounted for using the
purchase method of accounting. Based on information available at this time, the
Company has allocated approximately $550 million to assets with depreciation a
life of 20 years, approximately $60 million to excess purchase price with an
amortization life of 30 years, and approximately $30 million to assets with
depreciation lives ranging from 3 to 7 years. The Company intends to continue to
review the allocation of the purchase price of the acquired assets and
operations. Adjustments to the allocation of the purchase price, if any, will be
made by December 31, 1996.
In connection with the acquisition, Gannett agreed to cause Gannett Outdoor
Co. of Texas, Inc. ("Gannett of Texas") to grant an option (the "Houston
Option") to purchase, within 120 days after the closing of the Acquisition,
Gannett of Texas' outdoor operations in Houston, Texas, for a purchase price of
$10 million, plus the net book value of working capital and certain other
specified assets of Gannett of Texas. The Company exercised the Houston Option
on August 22, 1996, with the intention of completing the acquisition of Gannett
of Texas as soon as practicable following the expiration or early termination of
the applicable waiting period under the Hart-Scott-Rodino Act.
The Company financed the purchase price of the Gannett Outdoor Acquisition,
the fees and expenses associated with the Gannett Outdoor Acquisition and the
related financing, and the retirement of certain
4
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existing indebtedness through (i) revolving credit and term loans of $462
million under a senior credit facility, (ii) a bridge loan of $180 million under
a senior subordinated facility, and (iii) $284 million in proceeds from the sale
of an additional 8,590,000 shares of the Company's common stock; which sale was
completed August 22, 1996.
In connection with the acquisition, the Company purchased, pursuant to a
tender offer and consent solicitation, all but $15,000 aggregate principal
amount of its outstanding 10 3/4% Senior Notes due 2003 (the "Existing Notes")
and obtained the consent of the holders to modify or eliminate certain
provisions of the indenture governing the Existing Notes to permit the
consummation of the acquisition financing.
On August 8, 1996, in connection with the Gannett Outdoor Acquisition, the
Company sold substantially all of its existing billboard assets in Denver (the
"1996 Sale") to an unrelated party for $9.2 million consisting of $2.8 million
in cash paid at closing and a ten-year promissory note for the balance of the
purchase price. The promissory note bears interest at a rate of 9% per annum and
will be payable in quarterly installments. The promissory note is secured by a
first lien on the assets sold. The promissory note and all security instruments
in connection therewith are pledged to secure the Company's obligations under
its senior credit facility.
Perpetual Easements - On May 22, 1996, the Company completed the acquisition
of perpetual easements from CSX Realty Development Corporation for $21.6 million
in cash and certain future payments in an aggregate amount not to exceed $10.0
million payable over a period of ten years beginning no later than the year 2006
with the exact amount and timing to be determined based upon the results of the
Company's operations of the easements. The perpetual easements are located on
real property interests of CSX for the purpose of licensing rights to operate
outdoor advertising displays which are leased to independent outdoor advertising
companies and will be amortized on a straight line basis over 40 years.
NOTE 4 - NET LOSS PER SHARE
Primary loss per common and common equivalent share is computed on the
weighted average number of common shares outstanding during each year and
includes shares issuable upon exercise of stock options when the effect of such
issuance is dilutive. Such amounts have been adjusted to reflect the
36.4535-for-1 stock split as discussed in Note 2 and the 3-for-2 stock split as
discussed in Note 5.
NOTE 5 - STOCKHOLDERS' EQUITY (DEFICIENCY)
<TABLE>
<CAPTION>
SEPTEMBER DECEMBER
30, 31,
1996 1995
(Dollars in thousands)
<S> <C> <C>
Common stock, $.01 par value - authorized, 60,000,000 shares; issued,
34,420,773 and 21,714,566 shares; outstanding, 26,770,404
and 14,064,197 shares $ 207 $ 4
Additional paid in capital 317,436
Accumulated deficit (26,587) (24,718)
Treasury stock at cost, 7,650,369 shares (4,053) (4,053)
--------- ---------
$ 287,003 $ (28,767)
========= =========
</TABLE>
On June 27, 1996, the Board of Directors authorized a three-for-two stock
split in the form of a stock dividend payable on July 22, 1996 to holders of
record July 8, 1996.
NOTE 6 - SUBSEQUENT EVENTS
On October 15, 1996, the Company completed a public offering of $240.0
million 9 3/8% Senior Subordinated Notes due 2006 (the "Notes"). The net
proceeds of the Notes offering were used to repay amounts outstanding under a
subordinated credit facility incurred to finance a portion of the Gannett
Outdoor Acquisition and reduce amounts borrowed under the Company's senior
credit facility.
On October 31, 1996, the Company completed the sale of $10.0 million
principal amount of additional Notes upon the exercise of the underwriters'
over-allotment option granted by the Company in connection with the Notes
offering. The net proceeds received by the Company upon the sale of such Notes
were used to repay amounts borrowed under the Company's senior credit facility.
On November 1, 1996, the Board of Directors authorized a three-for-two stock
split in the form of a stock dividend payable on November 22, 1996 to holders of
record November 11, 1996.
On November 14, 1996, the Company completed the acquisition of Gannett of
Texas.
5
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
RESULTS OF OPERATIONS
COMPARISON OF THREE MONTHS ENDED SEPTEMBER 30, 1996 AND
SEPTEMBER 30, 1995
Gross revenues increased 144.1% to $48.3 million during the third
quarter of 1996 compared to $19.8 million in the third quarter of 1995. This
increase includes approximately $24.9 million attributable to the Gannett
Outdoor Acquisition. The remaining increase was attributable to a general
increase in revenues from the Company's continuing operations and to license
fees from perpetual easements.
Agency commissions decreased to 13.5% of gross revenues in the third
quarter of 1996 compared to 14.7% in the third quarter of 1995,
respectively, primarily as a result of a slightly lower proportion of
revenues generated through advertising agencies.
Net revenues increased by 147.4% for the third quarter of 1996 to
approximately $41.8 million compared to approximately $16.9 million for the
third quarter of 1995. This increase includes approximately $22.6 million
attributable to the Gannett Outdoor Acquisition, with the balance of the
increase in revenues attributable to increased revenues in all markets.
Direct advertising expenses increased as a percentage of net revenues to
53.4% in the third quarter of 1996 compared to 46.2% in the third quarter of
1995. This increase was primarily a result of the Gannett Outdoor
Acquisition.
General and administrative expenses increased to 6.7% compared to 5.8%
as a percentage of net revenues for the third quarter of 1996 as compared to
the third quarter of 1995. This increase was due primarily to the Gannett
Outdoor Acquisition.
As a result of the above factors, EBITDA increased by 196.6% (106.0%
before the gain from the 1996 Sale) for the third quarter of 1996 to
approximately $24.0 million ($16.7 million before the gain from the 1996
Sale) compared to approximately $8.1 million for the third quarter of 1995.
Depreciation and amortization expense for the third quarter of 1996 was
approximately $5.9 million compared to approximately $2.5 million for the
third quarter of 1995, an increase of approximately $3.4 million. This
increase was due primarily to the Gannett Outdoor Acquisition.
Interest expense increased to $9.3 million for the third quarter of 1996
compared to approximately $4.0 million for the third quarter of 1995. This
increase was due primarily to additional borrowings incurred in connection
with the Gannett Outdoor Acquisition.
Income before income taxes and extraordinary loss increased to $8.8
million in the third quarter of 1996 compared to $1.6 million in the third
quarter of 1995, primarily due to increased revenues and the gain from the
1996 Sale offset by increased interest expense.
The Company recorded an income tax provision of approximately $3.6
million in the third quarter of 1996 compared to $0.2 million for the third
quarter of 1995. The Company reported a write-off of deferred financing
costs of approximately $4.4 million (net of tax) associated with the
financing of the Gannett Outdoor Acquisition and a premium of approximately
$8.0 million (net of tax) associated with the early redemption of 10 3/4%
Senior Notes due 2003 offset by a gain of approximately $7.3 million from
the 1996 Sale in the third quarter of 1996.
The foregoing factors contributed to the Company's $7.2 million net loss
in the third quarter of 1996 compared to net income of $1.4 million in the
third quarter of 1995.
COMPARISON OF NINE MONTHS ENDED SEPTEMBER 30, 1996 AND
SEPTEMBER 30, 1995
Gross revenues increased 67.7% to $90.5 million during the first nine
months of 1996 compared to $54.0 million in the first nine months of 1995.
This increase includes approximately $24.9 million attributable to the
Gannett Outdoor Acquisition. The remaining increase was attributable to a
general increase in revenues from the Company's continuing operations and to
license fees from perpetual easements.
Agency commissions were 13.5% and 13.7% of gross revenues in the first
nine months of 1996 and the first nine months of 1995, respectively,
primarily as a result of a slightly lower proportion of revenues
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generated through advertising agencies.
Net revenues increased by 67.9% for the first nine months of 1996 to
approximately $78.3 million compared to approximately $46.6 million for the
first nine months of 1995. This increase includes approximately $22.6
million attributable to the Gannett Outdoor Acquisition, with the balance of
the increase in revenues attributable to increased revenues in all markets.
Direct advertising expenses increased as a percentage of net revenues to
49.1% compared to 48.0% in the first nine months of 1996 compared to the
first nine months of 1995. This was primarily a result of the Gannett
Outdoor Acquisition.
General and administrative expenses were 6.4% as a percentage of net
revenues for the first nine months of 1996 and 1995.
As a result of the above factors, EBITDA increased by 98.7% (64.1%
before the gain from the 1996 Sale) for the first nine months of 1996 to
approximately $42.2 million ($34.9 million before the gain from the 1996
Sale) compared to approximately $21.2 million for the first nine months of
1995.
Depreciation and amortization expense for the first nine months of 1996
was approximately $11.1 million compared to approximately $7.5 million for
the first nine months of 1995, an increase of approximately $3.6 million.
This increase was due primarily to the Gannett Outdoor Acquisition.
Interest expense increased to $17.3 million for the first nine months of
1996 compared to approximately $13.0 million for the first nine months of
1995. This increase was due primarily to additional borrowings incurred in
connection with the Gannett Outdoor Acquisition.
Income before income taxes and extraordinary loss increased to $13.8
million in the first nine months of 1996 compared to $0.7 million in the
first nine months of 1995, primarily due to increased revenues and the gain
from the 1996 Sale offset by increased interest expense.
The Company recorded an income tax provision of approximately $5.6
million in the first nine months of 1996 compared to approximately $0.2
million for the first nine months of 1995. The Company reported write-offs
for to the redemption of debentures of approximately $0.8 million, for
deferred financing costs of approximately $4.4 million (net of tax)
associated with the financing of the Gannett Outdoor Acquisition and a
premium of approximately $8.0 million (net of tax) associated with the early
redemption of 10 3/4% Senior Notes due 2003 offset by a gain of
approximately $7.3 million from the 1996 Sale in the third quarter of 1996.
The foregoing factors contributed to the Company's $5.1 million net loss
in the first nine months of 1996 compared to net income of $0.6 million in
the first nine months of 1995.
LIQUIDITY AND CAPITAL RESOURCES
The Company's senior credit facility, as amended and restated as of October
22, 1996 (the "Senior Credit Facility"), provides for revolving credit loans to
the Company of up to $125.0 million and to a Canadian subsidiary of the Company
of up to cdn$35.0 million. The revolving credit loan commitment applicable to
the Company automatically reduces in each year commencing in 1998, and
continuing through 2002, and the revolving credit loan commitment applicable to
the Canadian subsidiary automatically reduces in each year commencing in 1999
and continuing through 2002.
The Senior Credit Facility provides for a total term loan commitment of
$390.0 million and cdn$48.0 million. The term loans are payable in quarterly
installments commencing in 1997, with the final installment due in 2003. The
revolving credit loans and term loans bear interest at various rates tied to
base rates.
During the third quarter of 1996, the Company obtained a subordinated credit
facility which provided for bridge loans of $180.0 million. The proceeds from
the subordinated credit facility were used to finance a portion of the Gannett
Outdoor Acquisition.
On October 15, 1996, the Company completed a public offering of $240.0
million 9 3/8% Senior Subordinated Notes due 2006 (the "Notes"). The net
proceeds of the Notes offering were used to repay amounts outstanding under a
subordinated credit facility incurred to finance a portion of the Gannett
Outdoor Acquisition and reduce amounts borrowed under the Company's Senior
Credit Facility.
The Company's working capital increased to $51.3 million at September 30,
1996 compared to $8.2 million at December 31, 1995. This increase resulted
primarily from approximately $49.2 million of working
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capital purchased in the Gannett Outdoor Acquisition, offset by a reduction in
accounts receivable as a result of improved collection efforts, the proceeds of
which were used to reduce the amount outstanding under the Senior Credit
Facility.
Net cash provided by operating activities increased by $3.6 million to $14.4
million for the nine months ended September 30, 1996, compared to $10.8 million
for the nine months ended September 30, 1995, primarily due to the gain from the
1996 Sale and to higher income in the first nine months of 1996. Net cash used
in investing activities increased to $732.4 million in the first nine months of
1996 from $6.8 million in the first nine months of 1995, primarily because of
the Gannett Outdoor Acquisition, the investment in bus benches in Denver and the
acquisition of perpetual easements in 1996. Net cash provided by financing
activities was $728.9 million for the first nine months of 1996 compared to net
cash used in financing activities of $5.9 million for the first nine months of
1995, primarily because of proceeds from the completion of an initial public
offering in April 1996 followed by a secondary public offering in August, 1996
and because of borrowings under the Senior Credit Facility and a bridge loan
facility used to finance the Gannett Outdoor Acquisition and the acquisition of
perpetual easements.
The Company made approximately $5.3 million of capital expenditures during
the first nine months of 1996, an decrease from approximately $6.8 million
during the first nine months of 1995. Currently, the Company has no material
commitments for capital expenditures, although it expects ongoing capital
expenditures in the ordinary course of business to continue in amounts not
materially greater than the amounts of such capital expenditures in prior
periods.
The Company completed its initial public offering ("IPO") of 4,016,088
shares of its common stock on April 24, 1996, resulting in net proceeds to the
Company of $37.4 million. The holders of the Common Stock Subject to Put Option
sold their shares with the completion of the IPO, resulting in the liability
representing the Common Stock Subject to Put Option being credited to
stockholders' equity. The Company utilized a portion of the net proceeds from
the IPO to redeem at par or face value all of the outstanding Class A Preferred
Stock and the 1990 Subordinated Notes which were also held by these
shareholders. The Company utilized the remaining portion of the net proceeds to
redeem at par value all of the outstanding Class B Preferred Stock, the Junior
Subordinated Exchange Notes, and repay $17.0 million of the Senior Credit
Facility.
On August 22, 1996, the Company completed the sale of an additional
8,590,000 shares of its common stock, resulting in net proceeds to the Company
of $284.2 million. The net proceeds from this offering were used to finance a
portion of the purchase price payable in the Gannett Outdoor Acquisition.
The Company believes that internally generated funds and available
borrowings under the Senior Credit Facility will be sufficient to satisfy its
operating cash requirements and make required interest and principal payments
under the Senior Credit Facility and the Notes for at least the next twelve to
twenty-four months. The Company may, however, require additional capital
in-order-to consummate significant acquisitions in the future and there can be
no assurance that such capital will be available.
SPECIAL NOTE REGARDING "FORWARD-LOOKING STATEMENTS"
This report contains certain statements that are "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934, as amended.
Those statements include, among other things, the discussions of expectations
concerning the Company's future capital expenditures, availability of funds to
satisfy operating cash requirements and interest and principal payments on
indebtedness and liquidity and capital resources. The Company cautions that
reliance on any forward-looking statement involves risks and uncertainties and
that, although the Company believes that the assumptions on which the
forward-looking statements contained herein are based are reasonable, any of
those assumptions could prove to be inaccurate and, as a result, the
forward-looking statements based on those assumptions also could be incorrect.
The uncertainties in this regard include, but are not limited to, risk factors
such as advertising trends, competition, government regulation of outdoor
advertising, interest rate trends, and the Company's ability to integrate
successfully the businesses acquired in the Gannett Outdoor Acquisition and
other acquisitions. In addition, investors are directed to consider the other
risk factors and uncertainties discussed in documents filed by the Company with
the Securities and Exchange Commission. In light of these and other
uncertainties, the inclusion of a forward-looking statement herein should no be
regarded as a representation by the Company that the Company's plans and
objectives will be achieved.
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PART II
OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are filed herewith:
Exhibit No. Document
----------- --------
10.1 Fourth Amended and Restated Credit Agreement among
Outdoor Systems, Inc., Mediacom, Inc., The Several
Lenders from Time to Time Parties Hereto and Canadian
Imperial Bank of Commerce, as US Administrative Agent
and Canadian Administrative Agent, dated as of
October 22, 1996, and Global Affirmation and
Restatement
27. Financial Data Schedule
(b) Reports on Form 8-K.
The Company filed a Form 8-K dated July 16, 1996, reporting the signing
of the agreement to purchase substantially all of the assets of the
Outdoor Division of Gannett Co., Inc. and certain of its subsidiaries,
and agreements relating to the financing thereof.
The Company filed a Form 8-K/A (Amendment No. 1) dated July 18, 1996,
reporting the commencement of a tender offer for the purchase of the
Company's outstanding 10-3/4% Senior Notes due 2003 and containing the
Unaudited Consolidated Financial Statements of the Outdoor Division of
Gannett Co., Inc.
The Company filed a Form 8-K/A (Amendment No. 2) dated July 30, 1996,
reporting the amendments to the terms of the debt tender offer and
containing the Pro Forma Combined Condensed Financial Data of the
Company and the Outdoor Division of Gannett Co., Inc.
The Company filed a Form 8-K dated August 27, 1996, reporting the
consummation of the acquisition of the Outdoor Division of Gannett Co.,
Inc., the tender offer and the financing thereof.
10
<PAGE> 12
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
OUTDOOR SYSTEMS, INC.
DATED: November 14, 1996 By /S/ Bill Beverage
-------------------------------------------
Bill Beverage,Chief Financial Officer/
Secretary/Treasurer
(Principal Accounting Officer)
11
<PAGE> 1
EXHIBIT 10.1
CONFORMED COPY
================================================================================
FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
among
OUTDOOR SYSTEMS, INC.,
MEDIACOM, INC.,
The Several Lenders
from Time to Time Parties Hereto
and
CANADIAN IMPERIAL BANK OF COMMERCE,
as US Administrative Agent and
Canadian Administrative Agent
Dated as of October 22, 1996
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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SECTION 1. DEFINITIONS ................................................... 1
1.1 Defined Terms ............................................... 1
1.2 Other Definitional Provisions ............................... 31
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS ............................... 31
2.1 US Revolving Credit Commitments ............................. 31
2.2 Canadian Revolving Credit Commitments ....................... 32
2.3 US Revolving Credit Notes ................................... 32
2.4 Procedure for US Revolving Credit Borrowing ................. 33
2.5 Procedure for C$ Prime Loan Revolving Credit
Borrowing ............................................ 33
2.6 Fees ........................................................ 34
2.7 Termination or Reduction of Revolving Credit
Commitments .......................................... 34
2.8 US Term Loans ............................................... 36
2.9 Canadian Term Loans ........................................ 36
2.10 US Tranche A Term Notes and Repayment ...................... 36
2.11 US Tranche B Term Notes and Repayment ...................... 37
2.12 Canadian Tranche A Term Repayment .......................... 38
2.13 Canadian Tranche B Term Notes .............................. 38
2.14 Procedure for Term Loan Borrowing .......................... 39
2.15 Repayment of Loans ......................................... 40
2.16 Bankers' Acceptances ....................................... 41
2.17 Circumstances Making Bankers' Acceptances
Unavailable .......................................... 44
SECTION 3. LETTERS OF CREDIT ............................................. 45
3.1 L/C Commitments ............................................. 45
3.2 Procedure for Issuance of Letters of Credit ................. 46
3.3 Fees, Commissions and Other Charges ......................... 47
3.4 L/C Participations .......................................... 48
3.5 L/C Reimbursement Obligations of the Borrower ............... 49
3.6 Obligations Absolute ........................................ 50
3.7 Letter of Credit Payments ................................... 50
3.8 Application ................................................. 51
SECTION 4. GENERAL PROVISIONS ............................................ 51
4.1 Interest Rates and Payment Dates ............................ 51
4.2 Optional Prepayments ........................................ 52
4.3 Mandatory Prepayments and Reduction of Revolving
Credit Commitments ................................... 53
4.4 Conversion and Continuation Options ......................... 58
4.5 Minimum Amounts and Maximum Number of Tranches .............. 59
4.6 Computation of Interest and Fees ............................ 60
4.7 Inability to Determine Interest Rate ........................ 60
4.8 Pro Rata Treatment and Payments ............................. 61
4.9 Illegality .................................................. 62
4.10 Requirements of Law ........................................ 62
4.11 Taxes ...................................................... 64
4.12 Indemnity .................................................. 66
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SECTION 5. REPRESENTATIONS AND WARRANTIES ................................ 66
5.1 Financial Condition ......................................... 66
5.2 No Change ................................................... 68
5.3 Corporate Existence; Compliance with Law .................... 68
5.4 Corporate Power; Authorization; Enforceable
Obligations .......................................... 68
5.5 No Legal Bar ................................................ 69
5.6 No Material Litigation ...................................... 69
5.7 No Default .................................................. 69
5.8 Ownership of Property; Liens ................................ 69
5.9 Advertising Displays ........................................ 69
5.10 No Burdensome Restrictions ................................. 69
5.11 Taxes ...................................................... 69
5.12 Federal Regulations ........................................ 70
5.13 ERISA ...................................................... 70
5.14 Investment Company Act; Other Regulations .................. 71
5.15 Subsidiaries ............................................... 71
5.16 Purpose of Loans ........................................... 72
5.17 Environmental Matters ...................................... 72
5.18 Regulation H ............................................... 73
5.19 Solvency ................................................... 73
5.20 Material Agreements ........................................ 73
5.21 Purchase Agreement ......................................... 73
5.22 Intellectual Property ...................................... 74
5.23 No Material Misstatements .................................. 74
SECTION 6. CONDITIONS PRECEDENT .......................................... 74
6.1 Conditions to Effectiveness ................................. 74
6.2 Conditions to Each Extension of Credit ...................... 76
SECTION 7. AFFIRMATIVE COVENANTS ......................................... 76
7.1 Financial Statements ........................................ 77
7.2 Certificates; Other Information ............................. 77
7.3 Payment of Obligations ...................................... 78
7.4 Conduct of Business and Maintenance of Existence ............ 78
7.5 Maintenance of Property; Insurance .......................... 79
7.6 Inspection of Property; Books and Records;
Discussions .......................................... 79
7.7 Notices ..................................................... 79
7.8 Environmental Laws .......................................... 81
7.9 Lease Renewals .............................................. 81
7.10 Additional Collateral ...................................... 81
7.11 Key Man Life Insurance ..................................... 82
7.12 Interest Rate Protection ................................... 82
7.13 Canadian Pension Plans ..................................... 83
SECTION 8. NEGATIVE COVENANTS ............................................ 83
8.1 Financial Condition Covenants ............................... 83
8.2 Limitation on Indebtedness .................................. 85
8.3 Limitation on Liens ......................................... 86
8.4 Limitation on Guarantee Obligations ......................... 87
8.5 Limitation on Fundamental Changes ........................... 87
8.6 Limitation on Sale of Assets ................................ 88
8.7 Limitation on Leases ........................................ 89
8.8 Limitation on Dividends ..................................... 89
8.9 Limitation on Capital Expenditures .......................... 89
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8.10 Limitation on Investments, Loans and Advances .............. 90
8.11 Limitation on Optional Payments and Modifications
of Debt Instruments .................................. 90
8.12 Limitation on Transactions with Affiliates ................. 91
8.13 Limitation on Sales and Leasebacks ......................... 91
8.14 Limitation on Changes in Fiscal Year ....................... 91
8.15 Limitation on Negative Pledge Clauses ...................... 91
8.16 Limitation on Lines of Business ............................ 91
SECTION 9. EVENTS OF DEFAULT ............................................. 92
SECTION 10. THE ADMINISTRATIVE AGENTS .................................... 96
10.1 Appointment ................................................ 96
10.2 Delegation of Duties ....................................... 96
10.3 Exculpatory Provisions ..................................... 96
10.4 Reliance by Administrative Agent ........................... 97
10.5 Notice of Default .......................................... 97
10.6 Non-Reliance on Administrative Agents and Other
Lenders .............................................. 97
10.7 Indemnification ............................................ 98
10.8 Administrative Agents in Their Individual
Capacities ........................................... 98
10.9 Successor Administrative Agent ............................. 98
10.10 Releases of Guarantees and Collateral ..................... 99
SECTION 11. MISCELLANEOUS ................................................ 99
11.1 Amendments and Waivers ..................................... 99
11.2 Notices .................................................... 101
11.3 No Waiver; Cumulative Remedies ............................. 102
11.4 Survival of Representations and Warranties ................. 102
11.5 Payment of Expenses and Taxes .............................. 102
11.6 Successors and Assigns; Participations and
Assignments .......................................... 103
11.7 Adjustments; Set-off ....................................... 105
11.8 Counterparts ............................................... 107
11.9 Severability ............................................... 107
11.10 Integration ............................................... 107
11.11 GOVERNING LAW ............................................. 107
11.12 Submission To Jurisdiction; Waivers ....................... 107
11.13 Acknowledgements .......................................... 108
11.14 WAIVERS OF JURY TRIAL ..................................... 108
11.15 Confidentiality ........................................... 108
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<PAGE> 5
SCHEDULES
SCHEDULE 1.1A Commitments; Lending Offices;
Addresses for Notice
SCHEDULE 1.1B Pricing Grid
SCHEDULE 1.1C Mortgage Locations (incorporated by reference
to the Existing Credit Agreement)
SCHEDULE 5.2 Dividends, etc. (incorporated by reference to the
Existing Credit Agreement)
SCHEDULE 5.3 Foreign Jurisdictions(incorporated by reference
to the Existing Credit Agreement)
SCHEDULE 5.9 Advertising Displays(incorporated by reference to
the Existing Credit Agreement)
SCHEDULE 5.15 Subsidiaries (incorporated by reference to the
Existing Credit Agreement)
SCHEDULE 5.20 Material Agreements(incorporated by reference
to the Existing Credit Agreement)
SCHEDULE 8.2 Indebtedness (incorporated by reference to the
Existing Credit Agreement)
SCHEDULE 8.3 Liens (incorporated by reference to the Existing
Credit Agreement)
SCHEDULE 8.12 Affiliated Transactions (incorporated by
reference to the Existing Credit Agreement)
EXHIBITS
EXHIBIT G Form of Global Affirmation and Restatement
EXHIBIT H Form of Hypothec
- iv -
<PAGE> 6
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
October 22, 1996, among OUTDOOR SYSTEMS, INC., a Delaware corporation (the
"Company"), MEDIACOM, INC., a Canadian corporation (the "Canadian Borrower";
together with the Company, the "Borrowers"), the several banks and other
financial institutions (collectively, the "Lenders") from time to time parties
hereto, and CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, as US
Administrative Agent (as defined below), and CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Administrative Agent (as defined below).
W I T N E S S E T H :
WHEREAS, pursuant to the Third Amended and Restated Credit
Agreement, dated as of August 22, 1996 (as amended prior to the date hereof, the
"Existing Credit Agreement"), among the several banks and other financial
institutions parties thereto, Canadian Imperial Bank of Commerce, New York
Agency, as US Administrative Agent, and Canadian Imperial Bank of Commerce, as
Canadian Administrative Agent, such lenders have agreed to make, and have made,
certain loans and other extensions of credit to the Company;
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agents enter into this Fourth Amended and Restated Credit
Agreement to modify the Existing Credit Agreement in certain respects;
NOW THEREFORE, the parties hereto hereby agree that the
Existing Credit Agreement is amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": on any particular date, a rate of interest per annum
equal to the highest of:
(a) the rate of interest most recently announced by CIBC
as its Base Rate (the "CIBC Base Rate");
(b) the Federal Funds Rate for such date plus 1%; and
(c) the C/D Published Moving Rate most recently
determined by CIBC plus 1%.
The CIBC Base Rate is not necessarily intended to be the lowest rate of
interest charged by CIBC in connection with extensions of credit.
<PAGE> 7
2
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Acceptance Fee": the fee payable in C$ to each C$ Lender in
respect of Bankers' Acceptances computed in accordance with subsection
2.16(e).
"Acquisition": the acquisition by the Company of certain
assets of the Sellers used in connection with the Sellers' outdoor
advertising, transit and shelter operations (with exceptions as set
forth in the Purchase Agreement) and all the shares of the issued and
outstanding Capital Stock of New York Subways Advertising Co., Inc. and
the Seller-owned predecessor of the Canadian Borrower, all pursuant to
the Purchase Agreement.
"Adjustment Date": each date after December 31, 1996 that is
the second Business Day following receipt by the Lenders of both (i)
the financial statements required to be delivered pursuant to
subsection 7.1(a) or 7.1(b), as applicable, for the most recently
completed fiscal period and (ii) the related Compliance Certificate
required to be delivered pursuant to subsection 7.2(b) with respect to
such fiscal period.
"Administrative Agents": the collective reference to the US
Administrative Agent and the Canadian Administrative Agent.
"Advertising Displays": all posters, signs, billboards and
other outdoor advertising displays and related sites therefor owned or
leased (as lessee) by the Company and its Subsidiaries.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Agreement": this Fourth Amended and Restated Credit
Agreement, as amended, supplemented or otherwise modified from time to
time.
"Aggregate Outstanding Canadian Revolving Extensions of
Credit": as to any Canadian Revolving Credit Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all
Canadian Revolving Credit Loans made or, in the case of Bankers'
Acceptances, purchased or accepted, by such Canadian Revolving Credit
Lender then outstanding and (b) such Lender's Canadian Revolving Credit
Commitment Percentage of the Canadian L/C Obligations then outstanding.
<PAGE> 8
3
"Aggregate Outstanding US Revolving Extensions of Credit": as
to any US Revolving Credit Lender at any time, an amount equal to the
sum of (a) the aggregate principal amount of all US Revolving Credit
Loans made by such US Revolving Credit Lender then outstanding and (b)
such Lender's US Revolving Credit Commitment Percentage of the US L/C
Obligations then outstanding.
"Applicable BA Discount Rate": with respect to any C$ Lender,
as applicable to a Bankers' Acceptance being purchased by such C$
Lender on any day, the CDOR Rate in effect on such day with respect to
such Bankers' Acceptance.
"Applicable Margin": (a) as applied to a given Type of
Revolving Credit Loan or Tranche A Term Loan, the rate per annum
determined as follows: during the period from the Closing Date until
the first Adjustment Date, the Applicable Margin in respect of (1)
Revolving Credit Loans and Tranche A Term Loans shall equal (i) with
respect to ABR Loans and C$ Prime Loans, 1.75% per annum and (ii) with
respect to Eurodollar Loans and Bankers' Acceptance borrowings, 2.75%
per annum or (2) Tranche B Term Loans shall equal (i) with respect to
ABR Loans and C$ Prime Loans, 2.00% per annum and (ii) with respect to
Eurodollar Loans and Bankers' Acceptance borrowings, 3.00% per annum;
provided such Applicable Margins will be adjusted on each Adjustment
Date to the applicable rate per annum set forth under the heading "ABR
Loans/C$ Prime Loans Applicable Margin" or "Eurodollar Loans/Bankers'
Acceptance Applicable Margin" on Schedule 1.1B which corresponds to the
Total Leverage Ratio determined from the financial statements and
Compliance Certificate relating to the end of the fiscal quarter
immediately preceding such Adjustment Date; provided, further that in
the event that the financial statements required to be delivered
pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the related
Compliance Certificate required to be delivered pursuant to subsection
7.2(b), are not delivered when due, then
(a) if such financial statements and Compliance
Certificate are delivered after the date such financial
statements and Compliance Certificate were required to be
delivered (without giving effect to any applicable cure
period) and the Applicable Margin increases from that
previously in effect as a result of the delivery of such
financial statements and Compliance Certificate, then the
Applicable Margins in respect of Revolving Credit Loans,
Tranche A Term Loans and Tranche B Term Loans during the
period from the date upon which such financial statements and
Compliance Certificate were required to be delivered (without
giving effect to any applicable cure period) until the date
upon which they actually are delivered shall, except as
otherwise provided in clause (c) below, be the Applicable
Margin as so increased;
(b) if such financial statements and Compliance
Certificate are delivered after the date such financial
statements and Compliance Certificate were required to be
delivered and the Applicable Margin decreases from that
<PAGE> 9
4
previously in effect as a result of the delivery of such
financial statements and Compliance Certificate, then such
decrease in the Applicable Margin shall not become applicable
until the date upon which such financial statements and
Compliance Certificate actually are delivered; and
(c) if such financial statements and Compliance
Certificate are not delivered prior to the expiration of the
applicable cure period, then, effective upon such expiration,
for the period from the date upon which such financial
statements and Compliance Certificate were required to be
delivered (after the expiration of the applicable cure period)
until two Business Days following the date upon which such
financial statements and Compliance Certificate actually are
delivered, the Applicable Margin in respect of (i) Revolving
Credit Loans and Tranche A Term Loans shall be 1.75% per
annum, in the case of ABR Loans and C$ Prime Loans, and 2.75%
per annum, in the case of Eurodollar Loans and Bankers'
Acceptance borrowings, and (ii) Tranche B Term Loans shall be
2.00% per annum, in the case of ABR Loans and C$ Prime Loans,
and 3.00% per annum, in the case of Eurodollar Loans and
Bankers' Acceptance borrowings.
"Application": an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing
Lender to open a Letter of Credit.
"Assignee": as defined in subsection 11.6(c).
"Available Canadian Revolving Credit Commitment": as to any
Canadian Revolving Credit Lender, at any time, an amount equal to the
excess, if any, of (a) such Canadian Revolving Credit Lender's Canadian
Revolving Credit Commitment over (b) the sum of (i) the aggregate
principal amount of all Canadian Revolving Credit Loans made by such
Lender then outstanding and (ii) such Lender's Canadian Revolving
Credit Commitment Percentage of the Canadian L/C Obligations then
outstanding.
Available US Revolving Credit Commitment": as to any US
Revolving Credit Lender, at any time, an amount equal to the excess, if
any, of (a) such US Revolving Credit Lender's US Revolving Credit
Commitment over (b) the sum of (i) the aggregate principal amount of
all US Revolving Credit Loans made by such Lender then outstanding and
(ii) such Lender's US Revolving Credit Commitment Percentage of the US
L/C Obligations then outstanding.
"BA Discount Proceeds": in respect of any Bankers' Acceptance
to be purchased by a C$ Lender on any day under subsection 2.16, an
amount (rounded to the nearest whole Canadian cent, and with one-half
of one Canadian cent being rounded up) calculated on such day by
dividing:
(a) the face amount of such Bankers' Acceptance; by
<PAGE> 10
5
(b) the sum of one plus the product of:
(i) the Applicable BA Discount Rate (expressed
as a decimal) applicable to such Bankers'
Acceptance; and
(ii) a fraction, the numerator of which is the
number of days remaining in the term of such
Bankers' Acceptance and the denominator of
which is 365;
with such product being rounded up or down
to the fifth decimal place and .000005 being
rounded up.
"Bankers' Acceptance": a bill of exchange denominated in C$
drawn by the Canadian Borrower and accepted by a C$ Lender pursuant to
subsection 2.16.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.4, 2.5, 2.14, 2.16 or 3.2 as a date on which a
Borrower requests certain of the Lenders to make Loans hereunder or the
applicable Issuing Lender to issue Letters of Credit hereunder.
"Business": as defined in subsection 5.17(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City and Toronto are
authorized or required by law to close, except that, when used in
connection with a Eurodollar Loan, "Business Day" shall mean any
Business Day on which dealings in Dollars between banks may be carried
on in London, Toronto and New York City.
"Canadian Administrative Agent": Canadian Imperial Bank of
Commerce, together with its affiliates, as the administrative agent for
the C$ Lenders and the Canadian Tranche B Lenders under this Agreement
and the other Loan Documents.
"Canadian Demand Debenture": the Demand Debenture executed and
delivered under the Existing Credit Agreement by the Canadian Borrower
on the Closing Date in substantially the form of Exhibit B-2 to the
Existing Credit Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
"Canadian Debenture Pledge Agreement": the Debenture Pledge
Agreement executed and delivered under the Existing Credit Agreement by
the Canadian Borrower on the Closing Date in substantially the form of
Exhibit B-2 to the Existing Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Canadian Dollars" or "C$": lawful currency of Canada.
<PAGE> 11
6
"Canadian Exchange Rate": on a particular date, the rate at
which C$ may be exchanged into US Dollars, determined by reference to
the Bank of Canada noon rate as published on the Reuters Screen page
BOFC. In the event that such rate does not appear on such Reuters page,
the "Canadian Exchange Rate" shall be determined by reference to any
other means (as selected by the Canadian Administrative Agent) by which
such rate is quoted or published from time to time by the Bank of
Canada (in each case as in effect at or about 12:00 Noon, Local Time,
on the Business Day immediately preceding the relevant date of
determination); provided, that if at the time of any such
determination, for any reason, no such exchange rate is being quoted or
published, the Canadian Administrative Agent may use any reasonable
method as it deems applicable to determine such rate, and such
determination shall be prima facie evidence of the accuracy thereof.
"Canadian Issuing Lender": CIBC, in its capacity as issuer of
any Canadian Letter of Credit.
"Canadian L/C Commitment": C$7,000,000.
"Canadian L/C Obligations": at any time, an amount equal to
the sum of (a) the aggregate then undrawn and unexpired amount of the
then outstanding Canadian Letters of Credit and (b) the aggregate
amount of drawings under Canadian Letters of Credit which have not then
been reimbursed pursuant to subsection .
"Canadian L/C Participants": the collective reference to all
the Canadian Revolving Credit Lenders other than the Canadian Issuing
Lender.
"Canadian L/C Reimbursement Obligation": the obligation of the
Canadian Borrower to reimburse the Canadian Issuing Lender pursuant to
subsection for amounts drawn under Canadian Letters of Credit.
"Canadian Lending Office": as to each C$ Lender, the office in
Canada specified as the "Canadian Lending Office" of such Lender on
Schedule 1.1A or in an Assignment and Acceptance or such other office
in Canada as may be designated by such Lender by written notice to the
Company and the Canadian Administrative Agent.
"Canadian Letters of Credit": as defined in subsection 3.1(b).
"Canadian Pension Plan": any plan, program, arrangement or
understanding that is a pension plan for the purposes of any applicable
pension benefits or tax laws of Canada (whether or not registered under
any such laws) which is maintained or contributed to by (or to which
there is or may be an obligation to contribute of), any Borrower or any
Subsidiary of the Company in respect of any person's employment in
Canada or a province or territory thereof with the Company or any
Subsidiary of the Company and all related agreements, arrangements and
understandings in respect
<PAGE> 12
7
of, or related to, any benefits to be provided thereunder or the effect
thereof on any other compensation or remuneration of any employee.
"Canadian Revolving Credit Commitment": as to any Canadian
Revolving Credit Lender, its obligation to make C$ Loans to, to
purchase Bankers' Acceptances from, and/or issue or participate in
Canadian Letters of Credit issued on behalf of, the Canadian Borrower
in an aggregate amount not to exceed at any one time outstanding the
amount set forth under such Canadian Revolving Credit Lender's name on
Schedule 1.1A opposite the heading "Canadian Revolving Credit
Commitment" or, in the case of any Lender that is an Assignee, the
amount of the assigning Lender's Canadian Revolving Credit Commitment
assigned to such Assignee pursuant to subsection 11.6 (in each case as
such amount may be adjusted from time to time as provided herein).
"Canadian Revolving Credit Commitment Percentage": as to any
Canadian Revolving Credit Lender, the percentage of the aggregate
Canadian Revolving Credit Commitments constituted by its Canadian
Revolving Credit Commitment (or, if the Canadian Revolving Credit
Commitments have terminated or expired, the percentage which (i) the
sum of (a) the aggregate principal amount of such Lender's then
outstanding Canadian Revolving Credit Loans plus (b) such Lender's
interests in the aggregate Canadian L/C Obligations then outstanding
then constitutes of (ii) the sum of (a) the aggregate Canadian
Revolving Credit Loans made, purchased or accepted by the Canadian
Revolving Credit Lenders then outstanding plus (b) the aggregate
Canadian L/C Reimbursement Obligations then outstanding).
"Canadian Revolving Credit Commitment Period": the period from
and including the Closing Date to but not including the Canadian
Revolving Credit Commitment Termination Date.
"Canadian Revolving Credit Commitment Termination Date": the
earlier of (a) December 31, 2002 or, if such date is not a Business
Day, the Business Day next preceding such date and (b) the date upon
which the Canadian Revolving Credit Commitments shall be terminated
pursuant hereto.
"Canadian Revolving Credit Lender": any Lender having a
Canadian Revolving Credit Commitment or that holds outstanding Canadian
Revolving Credit Loans or Canadian L/C Obligations hereunder.
"Canadian Revolving Credit Loans": as defined in subsection
2.2.
"Canadian Security Documents": the collective reference to the
Canadian Demand Debenture, Canadian Debenture Pledge Agreement and the
Hypothec, and all other security documents hereafter delivered to the
Canadian Administrative Agent granting a Lien on any asset or assets of
the Canadian Borrower or any Canadian Subsidiary to secure the
obligations and liabilities of the Canadian
<PAGE> 13
8
Borrower hereunder and under any of the other Loan Documents or to
secure any guarantee, if any, by any Canadian Subsidiary of any such
obligations and liabilities.
"Canadian Subsidiary": any Subsidiary of the Canadian Borrower
that is incorporated or organized under the laws of Canada or any
province thereof.
"Canadian Term Loan": as defined in subsection 2.9.
"Canadian Term Loan Lenders": the collective reference to the
Canadian Tranche A Term Loan Lenders and the Canadian Tranche B Term
Loan Lenders.
"Canadian Tranche A Maturity Date": December 31, 2002.
"Canadian Tranche A Term Loan Commitment": as to any Canadian
Tranche A Term Loan Lender, its obligation to make a C$ Loan to, or
purchase Bankers' Acceptances from, the Canadian Borrower on the
Closing Date pursuant to subsection 2.9 in an amount equal to the
amount set forth under such Canadian Tranche A Term Loan Lender's name
in Schedule 1.1A opposite the heading "Canadian Tranche A Term Loan
Commitment"; collectively, the "Canadian Tranche A Term Loan
Commitments".
"Canadian Tranche A Term Loan Commitment Percentage": as to
any Canadian Tranche A Term Loan Lender, the percentage of the
aggregate Canadian Tranche A Term Loan Commitments constituted by its
Canadian Tranche A Term Loan Commitment or, following the Closing Date,
the percentage of the aggregate outstanding Canadian Tranche A Term
Loans constituted by its Canadian Tranche A Term Loan.
"Canadian Tranche A Term Loan Lender": any Lender having a
Canadian Tranche A Term Loan Commitment hereunder or that holds
outstanding Canadian Tranche A Term Loans.
"Canadian Tranche A Term Loan": as defined in subsection 2.9.
"Canadian Tranche B Maturity Date": December 31, 2003.
"Canadian Tranche B Term Loan Commitment": as to any Canadian
Tranche B Term Loan Lender, its obligation to make a US$ Loan to the
Canadian Borrower on the Closing Date pursuant to subsection 2.9 in an
amount equal to the amount set forth under such Canadian Tranche B Term
Loan Lender's name in Schedule 1.1A opposite the heading "Canadian
Tranche B Term Loan Commitment"; collectively, the "Canadian Tranche B
Term Loan Commitments".
"Canadian Tranche B Term Loan Commitment Percentage": as to
any Canadian Tranche B Term Loan Lender, the percentage of the
aggregate Canadian Tranche B Term Loan Commitments constituted by its
Canadian Tranche B Term
<PAGE> 14
9
Loan Commitment or, following the Closing Date, the percentage of the
aggregate outstanding Canadian Tranche B Term Loans constituted by its
Canadian Tranche B Term Loan.
"Canadian Tranche B Term Loan Lender": any Lender having a
Canadian Tranche B Term Loan Commitment hereunder or that holds
outstanding Canadian Tranche B Term Loans.
"Canadian Tranche B Term Loan": as defined in subsection 2.9.
"Canadian Tranche B Term Note": as defined in subsection
2.13(a).
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Cash Equivalents": (i) securities issued or directly and
fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof or by Canada or any province thereof
(provided that the full faith and credit of the United States or Canada
or any province thereof is pledged in support thereof) having
maturities of not more than 30 days from the date of acquisition, (ii)
time deposits and certificates of deposit having maturities of not more
than 30 days from the date of acquisition of any Lender or of any
commercial bank incorporated in the United States or Canada of
recognized standing the senior unsecured long-term debt of which is
rated at least A or the equivalent thereof by Standard & Poor's Ratings
Services ("S&P") or A2 or the equivalent thereof by Moody's Investors
Service, Inc. ("Moody's") or at least A or the equivalent thereof by
Canadian Bond Rating Service Limited or at least A Middle or the
equivalent thereof by Dominion Bond Rating Service Limited, and having
capital and surplus in excess of $500,000,000, (iii) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (i) and (ii) entered into
with any bank meeting the qualifications specified in clause (ii)
above, and (iv) commercial paper rated at least A-1 or the equivalent
thereof by S&P or P-1 or the equivalent thereof by Moody's or the
equivalent thereof by Canadian Bond Rating Service Limited or at least
R-I (Middle or High) or the equivalent thereof by Dominion Bond Rating
Service Limited, and in any case maturing within 30 days after the date
of acquisition.
"C$ Equivalent": on any date of determination, with respect to
any amount in US$, the equivalent in C$ of such amount determined by
the Canadian Administrative Agent using the US$ Exchange Rate then in
effect.
"C$ Lender": each Canadian Revolving Credit Lender and
Canadian Tranche A Lender.
<PAGE> 15
10
"C$ Loans": the collective reference to Canadian Revolving
Credit Loans and Canadian Tranche A Term Loans; for the purposes of
this Agreement, the principal amount of any C$ Loan constituting a
Bankers' Acceptance shall be deemed to be the undiscounted face amount
of such Bankers' Acceptance.
"C$ Prime Loans": C$ Loans at such time as they bear interest
at a rate based upon the C$ Prime Rate.
"C$ Prime Rate": with respect to a C$ Prime Loan, on any day,
the greater of (a) the annual rate of interest announced from time to
time by CIBC as its reference rate then in effect for determining
interest rates on C$ denominated commercial loans in Canada and (b) the
annual rate of interest equal to the sum of (i) the CDOR Rate for such
day and (ii) 0.50% per annum.
"CDOR Rate": on any date, the per annum rate of interest which
is the rate based on the rate applicable to C$ bankers' acceptances for
a term of 30 days (in the case of the definition of "C$ Prime Rate") or
for a term equivalent to the term of the relevant Bankers' Acceptances
(in the case of the definition of "Applicable BA Discount Rate")
appearing on the "Reuters Screen CDOR Page" (as defined in the
International Swap Dealer Association, Inc. definitions, as modified
and amended from time to time) for acceptances of Schedule I banks
under the Bank Act (Canada) as of 10:00 A.M., Local Time, on such date,
or if such date is not a Business Day, then on the immediately
preceding Business Day; provided, however, that if no such rate appears
on the Reuters Screen CDOR Page as contemplated, then the CDOR Rate on
any date shall be calculated as the arithmetic mean of the rates for
the term and amount referred to above applicable to C$ bankers'
acceptances quoted by CIBC as of 10:00 A.M., Local Time, on such date
or, if such date is not a Business Day, then on the immediately
preceding Business Day.
"C/D Published Moving Rate": on any particular date, the
latest three-week moving average of daily secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money market lenders, such three-week
moving average (adjusted to the basis of a year of 360 days) being
determined weekly for the three-week period ending on the previous
Friday by the US Administrative Agent on the basis of:
(a) such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New
York (as adjusted for reserves and assessments in the same
manner as the C/D Quoted Rate); or
(b) if such publication shall be suspended or
terminated, the C/D Quoted Rate determined by the US
Administrative Agent on the basis of quotations for such rates
by the US Administrative Agent.
"C/D Quoted Rate": relative to any determination of the C/D
Published Moving Rate in circumstances when publication of the rates
referred to in clause (a)
<PAGE> 16
11
of the definition thereof has been suspended or terminated, the rate of interest
per annum determined by the US Administrative Agent to be the sum (rounded
upward to the nearest 1/16th of 1%) of:
(a) the rate obtained by dividing (i) the average
(rounded upward to the nearest 1/16th of 1%) of the bid rates
quoted to the US Administrative Agent, in CIBC's domestic
secondary market at approximately 10:00 A.M., New York City
time (or as soon thereafter as practicable), from time to time
by three certificate of deposit dealers of recognized standing
selected by the US Administrative Agent in its reasonable
discretion for the purchase at face value of three-month
certificates of deposit of CIBC in an amount approximately
equal or comparable to the amount of CIBC's portion of the US$
Loans outstanding hereunder with respect to which the C/D
Quoted Rate is being determined by (ii) a percentage equal to
100% minus the average of the daily percentages specified
during such period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
marginal reserve requirement) for a member bank of the Federal
Reserve System in respect of liabilities consisting of or
including (among other liabilities) three-month Dollar
nonpersonal time deposits in the United States; and
(b) the daily average during such period of the net
annual assessment rates estimated by the US Administrative
Agent for determining the then current annual assessment
payable by CIBC to the FDIC for FDIC's insuring Dollar
deposits of CIBC in the United States.
"CIBC": Canadian Imperial Bank of Commerce, a Canadian
chartered bank, or one or more of its agencies, branches or affiliates
in its or their respective capacity or capacities, as the case may be,
as a Lender or Lenders hereunder.
"Class": when used with respect to any Loans, refers to
whether such Loans constitute US Revolving Credit Loans, US Tranche A
Term Loans, US Tranche B Term Loans, Canadian Revolving Credit Loans,
Canadian Tranche A Loans or Canadian Tranche B Loans, and, for purposes
of this definition, the US L/C Reimbursement Obligations shall be
deemed to be part of the Class which includes the US Revolving Credit
Loans, and the Canadian L/C Reimbursement Obligations shall be deemed
to be part of the Class which includes the Canadian Revolving Credit
Loans.
"Closing Date": the date on which the conditions precedent set
forth in subsection 6.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Security Document.
<PAGE> 17
12
"Commitments": the collective reference to the Revolving
Credit Commitments, the Term Loan Commitments and the L/C Commitments;
individually, a "Commitment".
"Commitment Percentage": as to any Lender, the percentage of
the aggregate Revolving Credit Commitments and Term Loan Commitments
constituted by such Lender's Revolving Credit Commitment and Term Loan
Commitment, or, following the Closing Date, the percentage representing
a fraction the numerator of which is the sum of (i) the aggregate
principal amount of such Lender's Term Loans then outstanding plus (ii)
the US Revolving Credit Commitment of such Lender (or, following the
termination or expiration of the US Revolving Credit Commitments, the
sum of (x) the aggregate principal amount of such Lender's US Revolving
Credit Loans then outstanding plus (y) such Lender's US Revolving
Commitment Percentage of all US L/C Obligations then outstanding) plus
(iii) the Canadian Revolving Credit Commitment of such Lender (or,
following the termination or expiration of the Canadian Revolving
Credit Commitments, the sum of (x) the aggregate principal amount of
such Lender's Canadian Revolving Credit Loans then outstanding plus (y)
such Lender's Canadian Revolving Commitment Percentage of all Canadian
L/C Obligations then outstanding), and the denominator of which is the
sum of (i) the aggregate principal amount of Term Loans of all Lenders
then outstanding plus (ii) the aggregate Revolving Credit Commitments
of all Lenders (or, following the termination or expiration of the
Revolving Credit Commitments, the sum of (x) the aggregate principal
amount of all Revolving Credit Loans then outstanding plus (y) the
aggregate principal amount of all L/C Obligations then outstanding);
all amounts denominated in C$ shall be included in any computations
pursuant to this definition at the US$ Equivalent thereof.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Company and which is treated as a single employer under Section
414(b) or (c) of the Code.
"Compliance Certificate": as defined in subsection 7.2(b).
"Consolidated Current Assets": on any date, with respect to
the Company and its Subsidiaries on a consolidated basis, all assets of
the Company and its Subsidiaries on such date which would, in
accordance with GAAP, be classified on a consolidated balance sheet of
the Company as "current assets".
"Consolidated Current Liabilities": on any date, with respect
to the Company and its Subsidiaries on a consolidated basis, all
liabilities of the Company and its Subsidiaries on such date which, in
accordance with GAAP, would be classified on a consolidated balance
sheet of the Company as "current liabilities".
"Consolidated Fixed Charges": for any period, an amount equal
to the sum of (a) scheduled payments of principal of the Term Loans
during such period, (b)
<PAGE> 18
13
the excess, if any, of the aggregate principal amount of Revolving
Credit Loans outstanding on the first day of such period over the
maximum aggregate amount of the Revolving Credit Commitments on the
last day of such period, giving effect to the reductions required under
subsection 2.7(b) but not to any reductions thereof made during such
period pursuant to subsection 2.7(a) or subsection 4.3, (c)
Consolidated Interest Expense for such period, (d) capital expenditures
made by the Company and its Subsidiaries during such period as
permitted by subsection 8.9, (e) taxes based upon income deducted in
determining Consolidated Net Income for such period and (f) the amount
paid in respect of repurchases by the Company of its Capital Stock
pursuant to the proviso to subsection 8.8 during such period.
"Consolidated Interest Expense": for any period, the amount
paid in cash during such period in respect of interest expense of the
Company and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Lease Expense": for any period, the aggregate
amount of fixed and contingent rentals payable by the Company and its
Subsidiaries, determined on a consolidated basis in accordance with
GAAP, for such period with respect to leases of real and personal
property (net of income from sub-leases thereof, but including taxes,
insurance, maintenance and similar expenses which the lessee is
obligated to pay under the terms of such leases), excluding, however,
obligations under Financing Leases and leases in respect of Advertising
Displays.
"Consolidated Net Income": for any period, the net income (or
deficit) of the Company and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Operating Cash Flow": for any period, an amount
equal to the sum of (a) the Consolidated Net Income for such period,
disregarding all items (other than actual cash losses) which should be
classified as extraordinary, unusual or non-recurring and proceeds from
the sale of assets, all determined on a consolidated basis in
accordance with GAAP, plus (b) all amounts deducted in computing such
Consolidated Net Income in respect of (i) Consolidated Interest Expense
(after giving effect to all Hedging Agreements and payments and
receipts thereunder), (ii) non-cash amortization expense (including
amortization of noncurrent assets and non-cash charges relating to
billboard removal), (iii) depreciation and (iv) income taxes.
"Consolidated Working Capital": on any date, with respect to
the Company and its Subsidiaries on a consolidated basis, the
Consolidated Current Assets (other than cash and Cash Equivalents) of
the Company and its Subsidiaries on such date, minus the Consolidated
Current Liabilities (other than the current portion of long term
Indebtedness) of the Company and its Subsidiaries on such date.
<PAGE> 19
14
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Default": any of the events specified in Section 9, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Denver Disposition": the sale by the Company prior to the
Closing Date of all or substantially all of the outdoor advertising
assets of the Company that, prior to the Original Closing Date and
without giving effect to the Acquisition, served the Denver, Colorado
advertising market.
"Designated Holder": each of (i) William S. Levine, any trust
solely for the benefit of Mr. Levine or his immediate family members,
or any partnership all the ownership interests in which are
beneficially owned or controlled by any of the foregoing, and (ii)
Arthur R. Moreno, any trust solely for the benefit of Mr. Moreno or his
immediate family members, or any partnership all the ownership
interests in which are beneficially owned or controlled by any of the
foregoing; provided that with respect to any such trust or partnership
either Mr. Levine or Mr. Moreno, as the case may be, shall at all times
directly or indirectly have the exclusive power to direct the voting of
the shares of Capital Stock of the Company held by such trust or
partnership.
"Division": the collective reference to the business and
assets of the Sellers transferred pursuant to the Purchase Agreement.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Draft": a blank bill of exchange, within the meaning of the
Bills of Exchange Act (Canada), in substantially the form set forth in
Exhibit F to the Existing Credit Agreement, drawn by the Canadian
Borrower on a C$ Lender, denominated in C$ and bearing such
distinguishing letters and numbers as such C$ Lender may determine, but
which at such time, except as otherwise provided herein, has not been
completed or accepted by such C$ Lender.
"Drawing": the creation and purchase of Bankers' Acceptances
and/or the purchase of completed Drafts, by the C$ Lenders pursuant to
subsection 2.16.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect, including, without limitation, CERCLA;
RCRA; the Hazardous
<PAGE> 20
15
Materials Transportation Act, as amended, 49 U.S.C. Section 1801 et
seq.; 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 2601 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.; the
Emergency Planning and Community Right-To-Know-Act of 1986, 42 U.S.C.
Section 11001 et seq.; any applicable state and local or foreign
counterparts or equivalents; and any Canadian federal, provincial,
municipal or local counterparts or equivalents thereof, including the
Canadian Environmental Protection Act, as amended, the Environmental
Protection Act (Ontario), as amended, and the Ontario Water Resources
Act and any foreign counterparts or equivalents thereof; and the terms
and conditions of any environmental permit issued pursuant to any
Environmental Law to either Borrower or its Subsidiaries or any
facility owned or operated by such Borrower or its Subsidiaries.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by
a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined by the US Administrative Agent to be the arithmetic mean
(rounded to the nearest 1/100th of 1%) of the offered rates for
deposits in Dollars with a term comparable to such Interest Period that
appears on the Telerate British Bankers Assoc. Interest Settlement
Rates Page (as defined below) at approximately 11:00 A.M., London time,
on the second full Business Day preceding the first day of such
Interest Period; provided, however, that if there shall at any time no
longer exist a Telerate British Bankers Assoc. Interest Settlement
Rates Page, "Eurodollar Base Rate" shall mean, with respect to each day
during each Interest Period pertaining to a Eurodollar Loan, the rate
per annum equal to the rate at which CIBC is offered Dollar deposits at
or about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery
on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"Telerate British Bankers Assoc. Interest Settlement Rates Page" shall
mean the display designated as
<PAGE> 21
16
Page 3750 on the Telerate System Incorporated Service (or such other
page as may replace such page on such service for the purpose of
displaying the rates at which Dollar deposits are offered by leading
banks in the London interbank deposit market).
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": with respect to any fiscal year of the
Company, an amount equal to (a) Consolidated Net Income for such fiscal
year, plus (b) amortization and depreciation for such fiscal year, plus
(c) extraordinary, unusual or non-recurring losses for such fiscal
year, minus (d) extraordinary, unusual or non-recurring gains for such
fiscal year, minus (e) capital expenditures made in accordance with
subsection 8.9 during such fiscal year, minus (f) payments of principal
on Indebtedness resulting in a permanent reduction of such Indebtedness
during such fiscal year (other than mandatory prepayments pursuant to
subsection 4.3), minus (g) amounts arising from sales of assets
permitted by subsection 8.6 during such fiscal year to the extent
included in Consolidated Net Income and paid to the Lenders as a
mandatory prepayment pursuant to subsection 4.3(c), minus (h) increases
in Consolidated Working Capital for such fiscal year, plus (i)
decreases in Consolidated Working Capital for such fiscal year.
"Existing Credit Agreement": as defined in the recitals
hereto.
"Fee Mortgages": the Fee Mortgages executed and delivered by
the Company and certain Subsidiaries of the Company under the Existing
Credit Agreement, as affirmed, amended and restated as of the Closing
Date pursuant to the Global Affirmation and Restatement, covering the
assets listed on Schedule 1.1C under the heading "Fee Mortgage
Properties", in substantially the form of Exhibit C-1 to the Existing
Credit Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Federal Funds Rate": for any particular date, an interest
rate per annum equal to the interest rate (rounded upward to the
nearest 1/16th of 1%) offered in the
<PAGE> 22
17
interbank market to the US Administrative Agent as the overnight
Federal Funds Rate at or about 10:00 A.M., New York City time, on such
day (or, if such day is not a Business Day, for the next preceding
Business Day).
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"GAAP": generally accepted accounting principles in the United
States of America on the date hereof, except that, for purposes of
subsection 7.1, such term shall mean such principles in effect from
time to time.
"Global Affirmation and Restatement": the Global Affirmation
and Restatement to be executed and delivered by each Loan Party on the
Closing Date, substantially in the form of Exhibit G.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, including the
National Association of Insurance Commissioners.
"Guarantee": each of (a) the US Guarantee and Collateral
Agreement and (b) any other guarantee hereafter delivered to either
Administrative Agent guaranteeing the obligations and liabilities of
each of the Loan Parties hereunder or under any other Loan Documents,
including, without limitation, any guarantee delivered pursuant to
subsection 7.10.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), without duplication, any obligation of (a) the guaranteeing
person or (b) another Person (including, without limitation, any bank
under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "primary
obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether
or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) 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 (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in
respect thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection
in the ordinary course of business or
<PAGE> 23
18
indemnities issued in the ordinary course of business not to exceed
$150,000 in the aggregate for all such indemnities. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Guarantee Obligation
is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Company in good
faith.
"Guarantor": any Person which is now or hereafter a party to a
Guarantee.
"Hazardous Materials": any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances,
petroleum products (including crude oil or any fraction thereof),
defined or regulated as such in or under any Environmental Law,
including, without limitation, (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated
biphenyls, and radon gas in excess of four picocuries per liter; (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 applicable
Environmental Law; and (c) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any
governmental authority.
"Hedging Agreements": (a) any interest rate protection
agreement, interest rate future, interest rate option, interest rate
swap, interest rate cap or other interest rate hedge or arrangement
under which the Company or any of its Subsidiaries is a party or a
beneficiary and (b) any agreement or arrangement designed to limit or
eliminate the risk and/or exposure of either of the Company or any of
its Subsidiaries to fluctuations in currency exchange rates.
"Hedging Lender": any Lender, or any Affiliate of any Lender,
which from time to time enters into a Hedging Agreement with either of
the Company or any of its Subsidiaries.
"Houston Acquisition": the consummation of the acquisition of
the outdoor advertising assets serving the Houston, Texas, market
contemplated by the Option in respect thereof referred to in the
Purchase Agreement in accordance with the terms thereof and receipt by
the Administrative Agent of evidence satisfactory to it that all
conditions precedent set forth in subsection 6.1 applicable to the
assets subject to such acquisition and the transactions contemplated
thereby have been satisfied to the
<PAGE> 24
19
same extent as if such assets and such transactions had been included
in the Acquisition consummated on the Original Closing Date and covered
by subsection 6.1 for the purposes thereof.
"Houston Disposition": the sale by the Company of either (i)
all or a portion of the assets representing outdoor advertising assets
serving the Houston, Texas, market or (ii) the sale by the Company of
the option in respect thereof described in and in accordance with the
Purchase Agreement.
"Hypothec": that certain agreement creating an immoveable and
movable hypothec in respect of the immovable and movable property
described therein, made by the Canadian Borrower hereunder in favor of
the Canadian Administrative Agent on its behalf and as agent for the
other Lenders named therein, substantially in the form thereof attached
hereto as part of Exhibit H.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of acceptances issued or
created for the account of such Person and in respect of unpaid
reimbursement obligations with respect to drawings made under any
letter of credit issued for the account of such Person, (e) all
liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable for
the payment thereof and (f) for purposes of subsection 8.2 and Section
9(e), all obligations of such Person in respect of Hedging Agreements.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, and (c) as
to any Eurodollar Loan having an Interest Period longer than three
months, each day which is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such
Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan
<PAGE> 25
20
and ending one, two, three, six or, if acceptable to each of
the Lenders, twelve months thereafter, as selected by the
relevant Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto;
and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three, six or, if
acceptable to each of the Lenders, twelve months thereafter,
as selected by the relevant Borrower by irrevocable notice to
the applicable Administrative Agent not less than three
Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period that would otherwise extend
beyond (a) the US Revolving Credit Commitment Termination Date
or the Canadian Revolving Credit Commitment Termination Date,
as the case may be, (in the case of Revolving Credit Loans)
shall end on the U.S. Revolving Credit Commitment Termination
Date or Canadian Revolving Credit Commitment Termination Date,
as the case may be, (b) the U.S. Tranche A Maturity Date or
the Canadian Tranche A Maturity Date, as the case may be (in
the case of the U.S. Tranche A Term Loans or the Canadian
Tranche A Term Loans, as the case may be) shall end on the
U.S. Tranche A Maturity Date or the Canadian Tranche A
Maturity Date, as the case may be, or (c) the U.S. Tranche B
Maturity Date or the Canadian Tranche B Maturity Date, as the
case may be (in the case of the U.S. Tranche B Term Loans or
the Canadian Tranche B Term Loans, as the case may be) shall
end on the U.S. Tranche B Maturity Date or the Canadian
Tranche B Maturity Date, as the case may be;
(3) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month; and
(4) each Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan.
<PAGE> 26
21
"Interim Adjustments": for the first three full fiscal
quarters of the Company following the Original Closing Date, the Total
Leverage Ratio and the Senior Leverage Ratio shall be calculated by
including in Consolidated Operating Cash Flow for the applicable
four-quarter period the actual Consolidated Operating Cash Flow for the
portion of such period of the Company and its Subsidiaries occurring
prior to the Original Closing Date, on a pro forma basis assuming (i)
that the Acquisition had been consummated on the first day of such
period and (ii) adjustments to such pro forma Consolidated Operating
Cash Flow for such pre-closing period attributable to the Company's
projected cost savings resulting from the Acquisition as determined by
Deloitte & Touche LLP and reasonably acceptable to the US
Administrative Agent.
"Issuing Lenders": the collective reference to the US Issuing
Lender and the Canadian Issuing Lender.
"Leasehold Mortgages": the Leasehold Mortgages executed and
delivered by the Company and certain Subsidiaries of the Company under
the Existing Credit Agreement, as affirmed, amended and restated on the
Closing Date pursuant to the Global Affirmation and Restatement, with
respect to the assets listed on Schedule 1.1C under the heading
"Leasehold Mortgage Properties", in substantially the form of Exhibit
C-2 to the Existing Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"L/C Commitments": the collective reference to the US L/C
Commitments and the Canadian L/C Commitments.
"L/C Fee Payment Date": the last day of each March, June,
September and December.
"L/C Obligations": the collective reference to the US L/C
Obligations and the Canadian L/C Obligations.
"L/C Participants": the collective reference the US L/C
Participants and the Canadian L/C Participants.
"L/C Participating Interest": with respect to any Letter of
Credit (a) in the case of the Issuing Lender with respect thereto, its
interest in such Letter of Credit and any Application relating thereto
after giving effect to the granting of participating interests therein,
if any, pursuant hereto and (b) in the case of each L/C Participant,
its undivided participating interest in such Letter of Credit and any
Application relating thereto.
"L/C Reimbursement Obligations": the collective reference to
the US L/C Reimbursement Obligations and the Canadian L/C Reimbursement
Obligations.
<PAGE> 27
22
"Letters of Credit": the collective reference to the US
Letters of Credit and the Canadian Letters of Credit.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement (other than those provisions of
the Company's Certificate of Incorporation in effect on the date hereof
which provide for preferential rights of any class of the Company's
preferred or common stock over any other class of the Company's
preferred or common stock) of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing).
"Loan": any loan made, including, in the case of C$ Loans, any
Bankers' Acceptance purchased or accepted, by any Lender pursuant to
this Agreement.
"Loan Documents": this Agreement, any Notes, the Applications,
each Bankers' Acceptance, the Security Documents, each Guarantee and
the Global Affirmation and Restatement.
"Loan Parties": the Company and each Subsidiary of the Company
which is a party to a Loan Document.
"Majority Lenders": at any time, Lenders the Commitment
Percentages of which aggregate more than 50%.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise)
or prospects of the Company and its Subsidiaries taken as a whole or
(b) the validity or enforceability of this Agreement, any of the Notes
or any Application or any of the other Loan Documents or the rights or
remedies of the Administrative Agents or the Lenders hereunder or
thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Mortgages": the collective reference to each of the Fee
Mortgages and Leasehold Mortgages executed and delivered by the Company
pursuant to the Existing Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Mortgage Supplement": each mortgage supplement (or equivalent
document, as each jurisdiction may require) amending each Mortgage (as
defined in
<PAGE> 28
23
the Existing Credit Agreement) under the Existing Credit Agreement,
executed and delivered by the Company on the Original Closing Date, in
substantially the form of Exhibit C-1 or C-2, as the case may be, to
the Existing Credit Agreement.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) with respect to any sale or other
disposition of assets by the Company or any of its Subsidiaries, the
net amount equal to the aggregate amount received in cash (including
any cash received by way of deferred payment pursuant to a note
receivable, other non-cash consideration or otherwise, but only as and
when such cash is so received) in connection with such sale or other
disposition minus the sum of (i) the reasonable fees (including,
without limitation, reasonable attorneys' fees), commissions and other
out-of-pocket expenses (as evidenced by supporting documentation
reasonably satisfactory to the Administrative Agent) incurred or paid
for by the Company or such Subsidiary in connection with such sale or
other disposition and (ii) federal, state and local taxes incurred in
connection with such sale or other disposition, whether payable at such
time or thereafter; and
(b) with respect to any issuance, sale or other disposition of
any Capital Stock or debt security by the Company or any of its
Subsidiaries (other than to the Company or any of its Subsidiaries),
the net amount equal to the aggregate amount received in cash in
connection with such issuance, sale or other disposition minus the sum
of (i) the reasonable fees, commissions and other out-of-pocket
expenses incurred by the Company or such Subsidiary in connection with
such issuance, sale or other disposition and (ii) federal, state and
local taxes incurred in connection with such issuance, sale or other
disposition, whether payable at such time or thereafter.
"Non-Excluded Taxes": as defined in subsection 4.11.
"Notes": the collective reference to the U.S. Revolving Credit
Notes and the Term Notes, if any.
"Obligations": the collective reference to the unpaid
principal of and interest (including, without limitation, interest
accruing after the maturity of the Loans and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to either
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) on the Loans and all other
obligations and liabilities of the Borrowers to the Administrative
Agents and the Lenders and their respective Affiliates, including,
without limitation, the L/C Reimbursement Obligations, Bankers'
Acceptances purchased or accepted and then outstanding and any
obligation of the Company under any Hedging Agreement entered into with
any Hedging Lender, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this
<PAGE> 29
24
Agreement, the Notes, the other Loan Documents or any Hedging Agreement
entered into with any Hedging Lender or any other document made,
delivered or given in connection herewith or therewith, in each case
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees and disbursements of counsel to the
Administrative Agents or to the Lenders that are required to be paid by
either Borrower pursuant to the terms hereof or any other Loan
Document).
"Original Closing Date": the Closing Date under and as defined
in the Existing Credit Agreement prior to its amendment and restatment
hereunder; the Original Closing Date shall mean August 22, 1996.
"Participant": as defined in subsection 11.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisitions": any acquisition made by the Company
or any of its Subsidiaries, whether through a purchase of Capital Stock
or assets or through a merger, consolidation or amalgamation, of
another Person or the assets constituting an operating business unit of
another Person, provided that (a)(i) in the case of any such
acquisition consummated on or prior to December 31, 1996, such
acquisition shall not be permitted to the extent that the aggregate
amount of consideration (other than consideration consisting of shares
of common stock of the Company) given by the Company and its
Subsidiaries for all such acquisitions during the period from the
Original Closing Date through December 31, 1996 would exceed
$50,000,000, and (ii) in the case of any such acquisition consummated
during the 1997 calendar year, such acquisition shall not be permitted
to the extent that the aggregate amount of consideration (other than
consideration consisting of shares of common stock of the Company)
given by the Company and its Subsidiaries for all such acquisitions
during the period from the Original Closing Date through December 31,
1997 would exceed $150,000,000, (b)(i) at the time of such acquisition
and after giving effect thereto no Default or Event of Default shall
have occurred and be continuing and (ii) the business so acquired
operates within markets in which the Company and its Subsidiaries are
operating at the time of such acquisition, and (c) in the case of any
acquisition the aggregate consideration for which exceeds $25,000,000
(other than consideration consisting of shares of common stock of the
Company), the Company shall have provided to each Lender reasonably
prior to the date of consummation of such acquisition (x) all then
available information relating to such business, including, without
limitation, historical and projected revenue and cash flow information
and information regarding Advertising Displays such as type, number,
location and occupancy and (y) pro forma projections showing compliance
with this Agreement after giving effect to such acquisition.
"Permitted Liens": Liens permitted under subsection 8.3.
<PAGE> 30
25
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Properties": as defined in subsection 5.17.
"Purchase Agreement": the Asset Purchase Agreement, dated as
of July 9, 1996, as amended, among the Company and the Sellers.
"Refunding Bankers' Acceptance": as defined in subsection
2.16(c).
"Register": as defined in subsection 11.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chairman of the Board of Directors
or the chief executive officer of the relevant Borrower or, with
respect to financial matters, the chief financial officer of the
relevant Borrower.
"Revolving Credit Commitments": the collective reference to
the US Revolving Credit Commitments and the Canadian Revolving Credit
Commitments.
"Revolving Credit Loans": the collective reference to the US
Revolving Credit Loans and the Canadian Revolving Credit Loans.
"SEC": United States Securities and Exchange Commission.
<PAGE> 31
26
"Securities Act": the Securities Act of 1933, as amended.
"Security Documents": the collective reference to the Canadian
Security Documents, the US Guarantee and Collateral Agreement, the
Mortgages, the Mortgage Supplements and all other security documents
hereafter delivered to either Administrative Agent granting a Lien on
any asset or assets of any Person to secure the obligations and
liabilities of either or both of the Borrowers hereunder or under any
of the other Loan Documents or to secure any guarantee of any such
obligations and liabilities, including, without limitation, any
security document delivered pursuant to subsection 7.10.
"Sellers" Gannett Co., Inc., Combined Communications
Corporation, Gannett Transit, Inc., Gannett Outdoor Co. of Texas,
Shelter Media Communications, Inc., and Gannett International
Communications, Inc.
"Senior Leverage Ratio": as of any date of determination, the
ratio of (a) the sum (on a consolidated basis without duplication) of
(i) all Indebtedness of the Company and its Subsidiaries outstanding on
such date other than any Subordinated Indebtedness and (ii) all
Guarantee Obligations of the Company and its Subsidiaries outstanding
on such date in respect of Indebtedness of any third Person other than
any subordinated Guarantee Obligations in respect of Subordinated
Indebtedness to (b) Consolidated Operating Cash Flow for the then most
recently ended period of four consecutive calendar quarters for which
financial statements shall have been delivered to the Lenders pursuant
to subsection 7.1, provided that, for any such period that includes
periods prior to the Original Closing Date, Consolidated Operating Cash
Flow shall be adjusted by giving effect to the Interim Adjustments with
respect thereto.
"Senior Notes": those 10-3/4% Senior Notes due 2003 issued by
the Company pursuant to the Senior Note Indenture that remain
outstanding as of the Closing Date.
"Senior Note Indenture": the Indenture dated as of August 15,
1993, between the Company and United States Trust Company of New York,
relating to the Senior Notes.
"Senior Subordinated Indenture": the Indenture, dated as of
October 15, 1996, among the Company, certain of its Subsidiaries and
The Bank of New York, as Trustee, relating to the Senior Subordinated
Notes.
"Senior Subordinated Notes": those 9-3/8% Senior Subordinated
Notes due 2006 issued by the Company pursuant to the Senior
Subordinated Indenture.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
<PAGE> 32
27
"Solvent" and "Solvency": with respect to any Person on a
particular date, the condition that on such date, (a) the fair value of
the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of
such Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's ability
to pay as such debts and liabilities mature, and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small amount of capital.
"Subordinated Bridge Agreement": the Senior Subordinated
Credit Agreement, dated as of July 9, 1996, among the Company, the
Guarantors parties thereto and Canadian Imperial Bank of Commerce.
"Subordinated Indebtedness": the Indebtedness of the Company
evidenced by the Senior Subordinated Notes.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company in existence on the date of
this Agreement.
"Subsidiary Guarantor": each Subsidiary of the Company that is
a party to the US Guarantee and Collateral Agreement or any other
Guarantee as a guarantor thereunder.
"Term Loans": the collective reference to the US Tranche A
Term Loans, the US Tranche B Term Loans, the Canadian Tranche A Term
Loans and the Canadian Tranche B Term Loans.
"Term Loan Commitments": the collective reference to the US
Tranche A Term Loan Commitments, the Canadian Tranche A Term Loan
Commitments, the US Tranche B Term Loan Commitments and the Canadian
Tranche B Term Loan Commitments; collectively, as to all the Term Loan
Lenders, the "Term Commitments."
"Term Loan Lenders": the collective reference to the Tranche A
Term Loan Lenders and the Tranche B Term Loan Lenders.
<PAGE> 33
28
"Term Notes": the collective reference to the US Tranche A
Term Notes, the US Tranche B Term Notes and the Canadian Tranche B Term
Notes.
"Tobacco Advertising Revenue": the gross revenue the Company
and its Subsidiaries derive from posting tobacco advertisements on
Advertising Displays.
"Total Leverage Ratio": as of any date of determination, the
ratio of (a) the sum (on a consolidated basis without duplication) of
(i) all Indebtedness of the Company and its Subsidiaries outstanding on
such date and (ii) all Guarantee Obligations of the Company and its
Subsidiaries outstanding on such date in respect of Indebtedness of any
third Person to (b) Consolidated Operating Cash Flow for the then most
recently ended period of four consecutive calendar quarters for which
financial statements shall have been delivered to the Lenders pursuant
to subsection 7.1, provided that for any such period that includes
periods prior to the Original Closing Date, Consolidated Operating Cash
Flow shall be adjusted by giving effect to the Interim Adjustments with
respect thereto.
"Tranche": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
"Tranche A Term Loan Lenders": at any time, the collective
reference to Lenders that have made any Tranche A Term Loans that are
then outstanding.
"Tranche A Term Loans": the collective reference to the US
Tranche A Term Loans and the Canadian Tranche A Term Loans.
"Tranche B Term Loan Lenders": at any time, the collective
reference to Lenders that have made any Tranche B Term Loans that are
then outstanding.
"Tranche B Term Loans": the collective reference to the US
Tranche B Term Loans and the Canadian Tranche B Term Loans.
"Transferee": as defined in subsection 11.6(f).
"Type": (a) as to any US$ Loan, its nature as an ABR Loan or a
Eurodollar Loan and (b) as to any C$ Loan, its nature as a C$ Prime
Loan or a Bankers' Acceptance.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"US Administrative Agent": Canadian Imperial Bank of Commerce,
New York Agency, together with its affiliates, as the arranger of the
Commitments and as
<PAGE> 34
29
the administrative agent for the US$ Lenders under this Agreement and
the other Loan Documents.
"US Dollars" and "US$": dollars in lawful currency of the
United States of America.
"US$ Equivalent": on any date of determination, with respect
to any amount in C$, the equivalent in US Dollars of such amount,
determined by the US Administrative Agent using the Canadian Exchange
Rate then in effect.
"US$ Exchange Rate": on a particular date, the rate at which
US$ may be exchanged into C$, determined by reference to the Bank of
Canada noon rate as published on the Reuters Screen page BOFC on the
immediately preceding Business Day. In the event that such rate does
not appear on such Reuters page, the "US$ Exchange Rate" shall be
determined by reference to any other means (as selected by the relevant
Administrative Agent) by which such rate is quoted or published from
time to time by the Bank of Canada (in each case as in effect at or
about 12:00 Noon, Local Time, on the Business Day immediately preceding
the relevant date of determination); provided, that if at the time of
any such determination, for any reason, no such exchange rate is being
quoted or published, the relevant Administrative Agent may use any
reasonable method as it deems applicable to determine such rate, and
such determination shall be conclusive absent manifest error.
"US$ Lender": each US Revolving Credit Lender, US Tranche A
Term Loan Lender, US Tranche B Term Loan Lender and Canadian Tranche B
Term Loan Lender.
"US$ Loans": the collective reference to the US Revolving
Credit Loans, US Tranche A Term Loans, US Tranche B Term Loans and
Canadian Tranche B Term Loans.
"US Guarantee and Collateral Agreement": the US Guarantee and
Collateral Agreement executed and delivered under the Existing Credit
Agreement by the Company and each of its Subsidiaries other than
Subsidiaries of the Canadian Borrower existing on the Closing Date (it
being understood that the Canadian Borrower is a party thereto in
respect of its acknowledgement of the pledge therein of its Capital
Stock and not as guarantor or grantor of Collateral), as affirmed,
amended and restated on the Closing Date pursuant to the Global
Affirmation and Restatement, in substantially the form of Exhibit B to
the Existing Credit Agreement, as the same may be amended, supplemented
or otherwise modified from time to time.
"US Issuing Lender": CIBC, in its capacity as issuer of any US
Letter of Credit.
"US L/C Commitment": US$35,000,000.
<PAGE> 35
30
"US L/C Obligations": at any time, an amount equal to the sum
of (a) the aggregate then undrawn and unexpired amount of the then
outstanding US Letters of Credit and (b) the aggregate amount of
drawings under US Letters of Credit which have not then been reimbursed
pursuant to subsection .
"US L/C Participants": the collective reference to all the US
Revolving Credit Lenders other than the US Issuing Lender.
"US L/C Reimbursement Obligation": the obligation of the
Company to reimburse the US Issuing Lender pursuant to subsection for
amounts drawn under US Letters of Credit.
"US Letters of Credit": as defined in subsection 3.1(a).
"US Revolving Credit Commitment": as to any US Revolving
Credit Lender, its obligation to make US Revolving Credit Loans to,
and/or issue or participate in US Letters of Credit issued on behalf
of, the US Borrower in an aggregate amount not to exceed at any one
time outstanding the amount set forth under such US Revolving Credit
Lender's name on Schedule 1.1A opposite the heading "US Revolving
Credit Commitment" or, in the case of any Lender that is an Assignee,
the amount of the assigning Lender's US Revolving Credit Commitment
assigned to such Assignee pursuant to subsection 11.6 (in each case as
such amount may be adjusted from time to time as provided herein).
"US Revolving Credit Commitment Percentage": as to any US
Revolving Credit Lender, the percentage of the aggregate US Revolving
Credit Commitments constituted by its US Revolving Credit Commitment
(or, if the US Revolving Credit Commitments have terminated or expired,
the percentage which (i) the sum of (a) such Lender's then outstanding
US Revolving Credit Loans plus (b) such Lender's interests in the
aggregate US L/C Obligations then outstanding then constitutes of (ii)
the sum of (a) the aggregate US Revolving Credit Loans of all the US
Revolving Credit Lenders then outstanding plus (b) the aggregate US L/C
Obligations then outstanding).
"US Revolving Credit Commitment Period": the period from and
including the Closing Date to but not including the US Revolving Credit
Commitment Termination Date.
"US Revolving Credit Commitment Termination Date": the earlier
of (a) December 31, 2002 or, if such date is not a Business Day, the
Business Day next preceding such date and (b) the date upon which the
US Revolving Credit Commitments shall be terminated pursuant hereto.
"US Revolving Credit Lender": any Lender having a US Revolving
Credit Commitment or that holds outstanding US Revolving Credit Loans
or US L/C Participating Interests hereunder.
<PAGE> 36
31
"US Revolving Credit Loans": as defined in subsection 2.1.
"US Revolving Credit Notes": as defined in subsection 2.3.
"US Term Loan Lenders": the collective reference to the US
Tranche A Term Loan Lenders and the US Tranche B Term Loan Lenders.
"US Term Loans": as defined in subsection 2.8.
"US Tranche A Maturity Date": December 31, 2002.
"US Tranche A Term Loan Commitment": as to any US Tranche A
Term Loan Lender, its obligation to make a US Tranche A Term Loan to
the Company pursuant to subsection 2.9 in an amount equal to the amount
set forth under such US Tranche A Term Loan Lender's name in Schedule
1.1A opposite the heading "US Tranche A Term Loan Commitment";
collectively, the "US Tranche A Term Loan Commitments".
"US Tranche A Term Loan Commitment Percentage": as to any US
Tranche A Term Loan Lender, the percentage of the aggregate US Tranche
A Term Loan Commitments constituted by its US Tranche A Term Loan
Commitment or, following the Closing Date, the percentage of the
aggregate outstanding US Tranche A Term Loans constituted by its US
Tranche A Term Loan.
"US Tranche A Term Loan Lender": any Lender having a US
Tranche A Term Loan Commitment hereunder or that holds outstanding US
Tranche A Term Loans.
"US Tranche A Term Loan": as defined in subsection 2.8.
"US Tranche A Term Note": as defined in subsection 2.10(a).
"US Tranche B Maturity Date": December 31, 2003.
"US Tranche B Term Loan Commitment": as to any US Tranche B
Term Loan Lender, its obligation to make a US Tranche B Term Loan to
the Company pursuant to subsection 2.9 in an amount equal to the amount
set forth under such US Tranche B Term Loan Lender's name in Schedule
1.1A opposite the heading "US Tranche B Term Loan Commitment";
collectively, the "US Tranche B Term Loan Commitments".
"US Tranche B Term Loan Commitment Percentage": as to any US
Tranche B Term Loan Lender, the percentage of the aggregate US Tranche
B Term Loan Commitments constituted by its US Tranche B Term Loan
Commitment or, following the Closing Date, the percentage of the
aggregate outstanding US Tranche B Term Loans constituted by its US
Tranche B Term Loan.
<PAGE> 37
32
"US Tranche B Term Loan Lender": any Lender having a US
Tranche B Term Loan Commitment hereunder or that holds outstanding US
Tranche B Term Loans.
"US Tranche B Term Loan": as defined in subsection 2.8.
"US Tranche B Term Note": as defined in subsection 2.11(a).
"Wholly Owned Subsidiary": means any Subsidiary, all of the
outstanding voting securities of which are owned, directly or
indirectly, by the Company.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Company and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section ,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 US Revolving Credit Commitments. (a) Subject to the terms
and conditions hereof, each US Revolving Credit Lender severally agrees to make
revolving credit loans ("US Revolving Credit Loans") to the Company from time to
time during the US Revolving Credit Commitment Period in an aggregate principal
amount (the "Maximum Borrowing Amount") at any one time outstanding which, when
added to such US Revolving Credit Lender's US Revolving Credit Commitment
Percentage of the then outstanding US L/C Obligations, does not exceed such
Lender's US Revolving Credit Commitment; provided, however, that prior to the
consummation of the Houston Acquisition, the Maximum Borrowing Amount shall be
reduced by such Lender's US Revolving Credit Commitment Percentage of
$10,000,000. During the US Revolving Credit Commitment Period the Company may
use the US Revolving Credit Commitments by borrowing, prepaying the US Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof.
<PAGE> 38
33
(b) The US Revolving Credit Loans shall be denominated in US$
and may from time to time be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a
combination thereof, as determined by the Company and notified to the US
Administrative Agent in accordance with subsections 2.3 and 2.7, provided that
no US Revolving Credit Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the US Revolving Credit Commitment Termination Date.
2.2 Canadian Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Canadian Revolving Credit Lender severally
agrees to make revolving credit loans to, and to accept and, at the option of
the Canadian Borrower, purchase Bankers' Acceptances from, the Canadian Borrower
(such loans and acceptances and/or purchases of Bankers' Acceptances, the
"Canadian Revolving Credit Loans") from time to time during the Canadian
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding, when added to such Canadian Revolving Credit Lender's Canadian
Revolving Credit Commitment Percentage of the then outstanding Canadian L/C
Obligations, not to exceed such Canadian Revolving Credit Lender's Canadian
Revolving Credit Commitment. During the Commitment Period, the Canadian Borrower
may use the Canadian Revolving Credit Commitments by borrowing, prepaying or
repaying, in whole or in part, and reborrowing, the C$ Prime Loans, and by
requesting the Canadian Revolving Credit Lenders to accept or purchase Bankers'
Acceptances, all in accordance with the terms and conditions hereof.
(b) The Canadian Revolving Credit Loans shall be denominated
in C$ and may from time to time be (i) C$ Prime Loans, (ii) Bankers' Acceptances
or (iii) a combination thereof, as determined by the Company and notified to the
Canadian Administrative Agent in accordance with subsections 2.5 and 2.16.
2.3 US Revolving Credit Notes. The Company agrees that, upon
the request to the US Administrative Agent by any US Revolving Credit Lender
made on or prior to the Closing Date or in connection with any assignment
pursuant to subsection 11.6, to evidence such Lender's US Revolving Credit Loans
the Company will execute and deliver to such Lender a promissory note
substantially in the form of Exhibit A-1 to the Existing Credit Agreement, with
appropriate insertions as to payee, date and principal amount (each, as amended,
supplemented, replaced or otherwise modified from time to time, a "US Revolving
Credit Note"), payable to the order of such Lender and in a principal amount
equal to (i) the amount of the initial US Revolving Credit Commitment of such US
Revolving Credit Lender or, if less, (ii) the aggregate unpaid principal amount
of all US Revolving Credit Loans made by such US Revolving Credit Lender. Each
US Revolving Credit Lender is hereby authorized to record the date, Type and
amount of each US Revolving Credit Loan made by such US Revolving Credit Lender,
each continuation thereof, each conversion of all or a portion thereof to
another Type, the date and amount of each payment or prepayment of principal
thereof and, in the case of Eurodollar Loans, the length of each Interest Period
with respect thereto, on the schedule annexed to and constituting a part of its
US Revolving Credit Note, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded; provided, however, that
the failure to make any such recordation shall not affect the obligations of the
<PAGE> 39
34
Company hereunder or under any US Revolving Credit Note. Each US Revolving
Credit Note shall (x) be dated the Closing Date, (y) be stated to mature on the
US Revolving Credit Commitment Termination Date and (z) provide for the payment
of interest in accordance with subsection 4.1.
2.4 Procedure for US Revolving Credit Borrowing. The Company
may borrow under the US Revolving Credit Commitments during the US Revolving
Credit Commitment Period on any Business Day, provided that the Company shall
give the US Administrative Agent irrevocable notice (which notice must be
received by the US Administrative Agent prior to 10:00 A.M., New York City time,
(a) three Business Days prior to the requested Borrowing Date, if all or any
part of the requested US Revolving Credit Loans are to be initially Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date,
otherwise), specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR
Loans or a combination thereof and (iv) if the borrowing is to be entirely or
partly of Eurodollar Loans, the respective amounts of each such Type of Loan and
the respective lengths of the initial Interest Periods therefor. Each borrowing
under the US Revolving Credit Commitments shall be in an amount equal to (x) in
the case of ABR Loans, $250,000 or a whole multiple of $100,000 in excess
thereof (or, if the then Available US Revolving Credit Commitments are less than
$250,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$2,500,000 or a whole multiple of $100,000 in excess thereof. Upon receipt of
any such notice from the Company, the US Administrative Agent shall promptly
notify each US Revolving Credit Lender thereof. Each US Revolving Credit Lender
will make the amount of its pro rata share of each borrowing available to the US
Administrative Agent for the account of the Company at the office of the US
Administrative Agent specified in subsection 11.2 prior to 11:00 A.M., New York
City time, on the Borrowing Date requested by the Company in funds immediately
available to the US Administrative Agent. Such borrowing will then be made
available to the Company by the US Administrative Agent crediting the account of
the Company on the books of such office with the aggregate of the amounts made
available to the US Administrative Agent by the US Revolving Credit Lenders and
in like funds as received by the US Administrative Agent.
2.5 Procedure for C$ Prime Loan Revolving Credit Borrowing.
The Canadian Borrower may borrow C$ Prime Loans during the Canadian Revolving
Credit Commitment Period on any Business Day, provided that the Canadian
Borrower shall give the Canadian Administrative Agent irrevocable notice (which
notice must be received by the Canadian Administrative Agent prior to 10:00
A.M., Toronto Time, one Business Day prior to the requested Borrowing Date),
specifying (a) the amount to be borrowed and (b) the requested Borrowing Date.
Each borrowing of C$ Prime Loans shall be in an amount equal to C$4,000,000, or
a whole multiple of C$100,000 in excess thereof (or, if the then Available
Canadian Revolving Credit Commitments are less than C$4,000,000, such lesser
amount). Upon receipt of any such irrevocable notice from the Canadian Borrower,
the Canadian Administrative Agent shall promptly notify each Canadian Revolving
Credit Lender thereof. Each Canadian Revolving Credit Lender will make the
amount of its pro rata share of each such borrowing available to the Canadian
Administrative Agent for the
<PAGE> 40
35
account of the Canadian Borrower at the Canadian Administrative Office prior to
11:00 A.M., Toronto Time, on the Borrowing Date requested by the Canadian
Borrower in funds immediately available to the Canadian Administrative Agent.
Such borrowing will then be made available, on such Borrowing Date to the
Canadian Borrower by the Canadian Administrative Agent crediting the account of
the Canadian Borrower on the books of the Canadian Administrative Office with
the aggregate of the amounts made available to the Canadian Administrative Agent
by the C$ Lenders and in like funds as received by the Canadian Administrative
Agent. The Canadian Borrower may make Bankers' Acceptance borrowings during the
Canadian Commitment Period on any Business Day, in accordance with and pursuant
to the procedures set forth in subsection 2.16.
2.6 Fees. (a) The Company agrees to pay to the US
Administrative Agent for the account of each US Revolving Credit Lender a
commitment fee for the period from and including the first day of the US
Revolving Credit Commitment Period to the US Revolving Credit Commitment
Termination Date, computed at the rate of 1/2 of 1% per annum on the average
daily amount of the Available US Revolving Credit Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December and on the US Revolving
Credit Commitment Termination Date or such earlier date as the US Revolving
Credit Commitments shall terminate as provided herein, commencing on the first
of such dates to occur after the Closing Date.
(b) The Canadian Borrower agrees to pay to the Canadian
Administrative Agent for the account of each Canadian Revolving Credit Lender a
commitment fee for the period from and including the first day of the Canadian
Revolving Credit Commitment Period to the Canadian Revolving Credit Commitment
Termination Date, computed at the rate of 1/2 of 1% per annum on the average
daily amount of the Available Canadian Revolving Credit Commitment of such
Lender during the period for which payment is made, payable quarterly in arrears
on the first business day in Toronto following the last day of each March, June,
September and December (for the quarter ending on such last day) and on the
Canadian Revolving Credit Commitment Termination Date or such earlier date as
the Canadian Revolving Credit Commitments shall terminate as provided herein
(for the period since the end of the last period for which payment shall have
been made), commencing on the first of such dates to occur after the Closing
Date.
(c) The Company agrees to pay to the US Administrative Agent
the fees agreed to by the US Administrative Agent and the Company.
2.7 Termination or Reduction of Revolving Credit Commitments.
(a) The Company shall have the right, upon not less than five Business Days'
notice to the US Administrative Agent, to terminate the US Revolving Credit
Commitments or, from time to time, to reduce the amount of the US Revolving
Credit Commitments, and the Canadian Borrower shall have the right, upon not
less than five Business Days' notice to the Canadian Administrative Agent, to
terminate the Canadian Revolving Credit Commitments or, from time to time, to
reduce the amount of the Canadian Revolving Credit Commitments; provided that no
such termination or reduction shall be permitted if, after
<PAGE> 41
36
giving effect thereto and to any prepayments of the Revolving Credit Loans made
on the effective date thereof, (i) the aggregate principal amount of the US
Revolving Credit Loans then outstanding, when added to the then outstanding US
L/C Obligations, would exceed the US Revolving Credit Commitments then in effect
or (ii) the aggregate principal amount of the Canadian Revolving Credit Loans
then outstanding, when added to the then outstanding Canadian L/C Obligations,
would exceed the Canadian Revolving Credit Commitments then in effect. Any such
reduction shall be in an amount equal to $2,500,000 or a whole multiple of
$100,000 in excess thereof, in the case of the US Revolving Credit Commitments,
or C$2,500,000 or a whole multiple of C$100,000 in excess thereof, in the case
of the Canadian Revolving Credit Commitments, and shall reduce permanently the
US Revolving Credit Commitments or the Canadian Revolving Credit Commitments, as
the case may be, then in effect.
(b) The US Revolving Credit Commitments shall automatically be
permanently reduced on December 31 of each year, commencing on December 31,
1998, by the aggregate amount of US Revolving Credit Commitments set forth below
opposite each such date:
<TABLE>
<S> <C>
December 31, 1998 $20,000,000
December 31, 1999 $20,000,000
December 31, 2000 $25,000,000
December 31, 2001 $30,000,000
December 31, 2002 $30,000,000
</TABLE>
Each such reduction shall be accompanied by prepayment of the US Revolving
Credit Loans (together with fees and interest accrued thereon to the date of
such prepayment and any additional amounts owing under subsection 4.12) to the
extent, if any, that the US Revolving Credit Loans then outstanding, when added
to the US L/C Obligations then outstanding, exceed the amount of the US
Revolving Credit Commitments as so reduced. If, after giving effect to such
prepayment of the US Revolving Credit Loans, the US L/C Obligations then
outstanding exceed the US Revolving Credit Commitments as so reduced, the
Company shall deposit in a cash collateral account with the US Administrative
Agent an amount equal to the amount by which the US L/C Obligations then
outstanding exceed the US Revolving Credit Commitments as so reduced.
(c) The Canadian Revolving Credit Commitments shall
automatically be permanently reduced on December 31 of each year, commencing on
December 31, 1999, by the aggregate amount of Canadian Revolving Credit
Commitments set forth below opposite each such date:
<TABLE>
<S> <C>
December 31, 1999 C$ 5,000,000
December 31, 2000 C$ 5,000,000
December 31, 2001 C$ 5,000,000
December 31, 2002 C$20,000,000
</TABLE>
<PAGE> 42
37
Each such reduction shall be accompanied by prepayment of the Canadian Revolving
Credit Loans that are C$ Prime Loans (together with fees and interest accrued
thereon to the date of such prepayment and any additional amounts owing under
subsection 4.12) or, in the case of Canadian Revolving Credit Loans that are
Bankers' Acceptances, cash collateralization of such Bankers' Acceptances as set
forth below to the extent, if any, that the Canadian Revolving Credit Loans then
outstanding, when added to the Canadian L/C Obligations then outstanding, exceed
the amount of the Canadian Revolving Credit Commitments as so reduced. If, after
giving effect to such prepayment of the Canadian Revolving Credit Loans that are
C$ Prime Loans, the sum of the aggregate face amount of Canadian Revolving
Credit Loans that are Bankers' Acceptances and the aggregate amount of Canadian
L/C Obligations then outstanding exceed the Canadian Revolving Credit
Commitments as so reduced, the Canadian Borrower shall deposit in a cash
collateral account with the Canadian Administrative Agent an amount equal to the
amount by which such sum exceeds the Canadian Revolving Credit Commitments as so
reduced.
2.8 US Term Loans. Subject to the terms and conditions hereof,
(a) each US Tranche A Term Loan Lender severally agrees to make a term loan (a
"US Tranche A Term Loan") to the Company on the Closing Date in the principal
amount set forth under such Lender's name in Schedule 1.1A opposite the heading
"US Tranche A Term Loan Commitment", and (b) each US Tranche B Term Loan Lender
severally agrees to make a term loan (a "US Tranche B Term Loan", and together
with the US Tranche A Term Loans, the "US Term Loans") to the Company on the
Closing Date in the principal amount set forth under such Lender's name in
Schedule 1.1A opposite the heading "US Tranche B Term Loan Commitment". The US
Term Loans shall be denominated in US$ and may from time to time be (a)
Eurodollar Loans, (b) ABR Loans or (c) a combination thereof, as determined by
the Company and notified to the US Administrative Agent in accordance with
subsection 4.4.
2.9 Canadian Term Loans. Subject to the terms and conditions
hereof, (a) each Canadian Tranche A Term Loan Lender severally agrees to make
loans (which shall be C$ Prime Loans) to, and to accept or purchase Bankers'
Acceptances from, the Canadian Borrower (such loans and acceptances and/or
purchases of Bankers' Acceptances, "Canadian Tranche A Term Loan") to the
Canadian Borrower on the Closing Date in the principal amount set forth under
such Lender's name in Schedule 1.1A opposite the heading "Canadian Tranche A
Term Loan Commitment" and (b) each Canadian Tranche B Term Loan Lender severally
agrees to make a term loan (a "Canadian Tranche B Term Loan", and together with
the Canadian Tranche A Term Loans, the "Canadian Term Loans") to the Canadian
Borrower on the Closing Date in the principal amount set forth under such
Lender's name in Schedule 1.1A opposite the heading "Canadian Tranche B Term
Loan Commitment". The Canadian Tranche A Term Loans shall be denominated in C$
and may from time to time be (a) C$ Prime Loans, (b) Bankers' Acceptances or (c)
a combination thereof, and the Canadian Tranche B Term Loans shall be
denominated in US$ and may from time to time be (a) Eurodollar Loans, (b) ABR
Loans or (c) a combination thereof, as determined by the Canadian Borrower and
notified to the Canadian Administrative Agent in accordance with subsection 4.4.
<PAGE> 43
38
2.10 US Tranche A Term Notes and Repayment. (a) The Company
agrees that, upon the request to the US Administrative Agent by any US Tranche A
Term Loan Lender made on or prior to the Closing Date or in connection with any
assignment pursuant to subsection 11.6, to evidence such Lender's US Tranche A
Term Loan the Company will execute and deliver to such Lender a promissory note
substantially in the form of Exhibit A-2 to the Existing Credit Agreement (each,
as amended, supplemented, replaced or otherwise modified from time to time, a
"US Tranche A Term Note"), with appropriate insertions therein as to payee, date
and principal amount, payable to the order of such US Tranche A Term Loan Lender
and in a principal amount equal to the amount set forth under such US Tranche A
Term Loan Lender's name on Schedule 1.1A opposite the heading "US Tranche A Term
Loan Commitment." Any US Tranche A Term Note shall (i) be dated the Closing
Date, (ii) be payable as provided in subsection 2.10(b) and (iii) provide for
the payment of interest in accordance with subsection 4.1.
(b) The US Tranche A Term Loans shall be payable in
consecutive quarterly installments, payable during each calendar year in four
equal installments on each March 31, June 30, September 30 and December 31 in
the aggregate principal amounts for such year set forth opposite such year
below, commencing on March 31, 1997 (or, if less, the aggregate amount of the US
Tranche A Term Loans then outstanding):
<TABLE>
<CAPTION>
Year Amount
---- ------
<S> <C>
1997 $24,000,000
1998 $36,000,000
1999 $45,000,000
2000 $55,000,000
2001 $50,000,000
2002 $30,000,000
</TABLE>
2.11 US Tranche B Term Notes and Repayment. (a) The Company
agrees that, upon the request to the US Administrative Agent by any US Tranche B
Term Loan Lender made on or prior to the Closing Date or in connection with any
assignment pursuant to subsection 11.6, to evidence such Lender's US Tranche B
Term Loan the Company will execute and deliver to such Lender a promissory note
substantially in the form of Exhibit A-3 to the Existing Credit Agreement (each,
as amended, supplemented, replaced or otherwise modified from time to time, a
"US Tranche B Term Note"; and together with the US Tranche A Term Notes, the "US
Term Notes"), with appropriate insertions therein as to payee, date and
principal amount, payable to the order of such US Tranche B Term Loan Lender and
in a principal amount equal to the amount set forth under such US Tranche B Term
Loan Lender's name on Schedule 1.1A opposite the heading "US Tranche B Term Loan
Commitment." Any US Tranche B Term Note shall (i) be dated the Closing Date,
(ii) be payable as provided in subsection 2.11(b) and (iii) provide for the
payment of interest in accordance with subsection 4.1.
(b) The US Tranche B Term Loans shall be payable in
consecutive quarterly installments, payable during each calendar year in four
equal installments on each March
<PAGE> 44
39
31, June 30, September 30 and December 31 in the aggregate principal amounts for
such year set forth opposite such year below, commencing on March 31, 1997 (or,
if less, the aggregate amount of the US Tranche B Term Loans then outstanding):
<TABLE>
<CAPTION>
Year Amount
---- ------
<S> <C>
1997 $ 1,100,000
1998 $ 1,100,000
1999 $ 1,100,000
2000 $ 1,100,000
2001 $11,100,000
2002 $34,000,000
2003 $60,500,000
</TABLE>
2.12 Canadian Tranche A Term Repayment. The Canadian Tranche A
Term Loans shall be payable in consecutive quarterly installments, payable
during each calendar year in four equal installments on each March 31, June 30,
September 30 and December 31 in the aggregate principal amounts for such year
set forth opposite such year below, commencing on March 31, 1997 (or, if less,
the aggregate amount of the Canadian Tranche A Term Loans then outstanding):
<TABLE>
<CAPTION>
Year Amount
---- ------
<S> <C>
1997 C$ 4,800,000
1998 C$ 7,200,000
1999 C$ 9,000,000
2000 C$11,000,000
2001 C$10,000,000
2002 C$ 6,000,000
</TABLE>
2.13 Canadian Tranche B Term Notes. (a) The Canadian Borrower
agrees that, upon the request to the Canadian Administrative Agent by any
Canadian Tranche B Term Loan Lender made on or prior to the Closing Date or in
connection with any assignment pursuant to subsection 11.6, to evidence such
Lender's Canadian Tranche B Term Loan the Canadian Borrower will execute and
deliver to such Lender a promissory note substantially in the form of Exhibit
A-5 to the Existing Credit Agreement (each, as amended, supplemented, replaced
or otherwise modified from time to time, a "Canadian Tranche B Term Note"), with
appropriate insertions therein as to payee, date and principal amount, payable
to the order of such Canadian Tranche B Term Loan Lender and in a principal
amount equal to the amount set forth under such Canadian Tranche B Term Loan
Lender's name on Schedule 1.1A opposite the heading "Canadian Tranche B Term
Loan Commitment." Any Canadian Tranche B Term Note shall (i) be dated the
Closing Date, (ii) be payable as provided in subsection 2.13(b) and (iii)
provide for the payment of interest in accordance with subsection 4.1.
<PAGE> 45
40
(b) The Canadian Tranche B Term Loans shall be payable in
consecutive quarterly installments, payable during each calendar year in four
equal installments on each March 31, June 30, September 30 and December 31 in
the aggregate principal amounts for such year set forth opposite such year
below, commencing on March 31, 1997 (or, if less, the aggregate amount of the
Canadian Tranche B Term Loans then outstanding):
<TABLE>
<CAPTION>
Year Amount
---- ------
<S> <C>
1997 $ 400,000
1998 $ 400,000
1999 $ 400,000
2000 $ 400,000
2001 $ 4,400,000
2002 $12,000,000
2003 $22,000,000
</TABLE>
2.14 Procedure for Closing Date Borrowing. The funding of Term
Loans on the Closing Date will be effectuated in accordance with the following
procedure, in each case so that, after giving effect thereto, the Term Loans and
Revolving Credit Commitments of each Lender are as set forth under the relevant
heading in Schedule 1.1A:
(i) the US Revolving Credit Commitments will be adjusted so as
to give effect to the amounts thereof for each Lender set forth on Schedule
1.1A.
(ii) each US Tranche B Term Loan under the Existing Credit
Agreement will be continued as, and deemed to be, a US Tranche A Term Loan
hereunder;
(iii) US Tranche A Term Loans under the Existing Credit
Agreement in an aggregate principal amount of $90,000,000 will be continued as,
and deemed to be, US Tranche A Term Loans hereunder, and US Tranche A Term Loans
under the Existing Credit Agreement in an aggregate principal amount of
$30,000,000 will be continued as, and deemed to be, US Revolving Credit Loans
hereunder, allocated so that after giving effect thereto and to clause (i) and
(ii) above, the US Revolving Credit Loans and US Tranche A Term Loans held by
each Lender are consistent with their respective US Revolving Credit Commitment
Percentages and US Tranche A Term Loan Commitment Percentages based on Schedule
1.1A hereto;
(iv) each Canadian Tranche A Term Loan under the Existing
Agreement and each Canadian Revolving Credit Commitment will be continued as,
and deemed to be, a Canadian Tranche A Term Loan or Canadian Revolving Credit
Commitment hereunder, as the case may be; and
(v) each Canadian Tranche C Term Loan under the Existing
Credit Agreement will be continued as, and deemed to be, a Canadian Tranche B
Term Loan hereunder, and each US Tranche C Term Loan under the Existing Credit
Agreement will be continued as, and deemed to be, a US Tranche B Term Loan
hereunder.
<PAGE> 46
41
2.15 Repayment of Loans. (a) Each Borrower (as specified in
the succeeding sentence) hereby unconditionally and severally promises to pay to
the applicable Administrative Agent for the account of: (i) in the case of each
Borrower, each Revolving Credit Lender, the then unpaid principal amount of each
Revolving Credit Loan of such Lender made to such Borrower, on the US Revolving
Credit Commitment Termination Date, in the case of US Revolving Credit Loans,
and on the Canadian Revolving Credit Commitment Termination Date, in the case of
Canadian Revolving Credit Loans (or, in each case, such earlier date on which
the Revolving Credit Loans become due and payable pursuant to Section 9); (ii)
each US Tranche A Term Loan Lender, the amounts specified in subsection 2.10(b)
on the dates specified in subsection 2.10(b) (or such earlier date on which the
US Tranche A Term Loans become due and payable pursuant to Section 9); (iii)
each US Tranche B Term Loan Lender, the amounts specified in subsection 2.11(b)
on the dates specified in subsection 2.11(b) (or such earlier date on which the
US Tranche B Term Loans become due and payable pursuant to Section 9); (iv) each
Canadian Tranche A Term Loan Lender, the amounts specified in subsection 2.12 on
the dates specified in subsection 2.12 (or such earlier date on which the
Canadian Tranche A Term Loans become due and payable pursuant to Section 9); and
(v) each Canadian Tranche B Term Loan Lender, the amounts specified in
subsection 2.13(b) on the dates specified in subsection 2.13(b) (or such earlier
date on which the Canadian Tranche B Term Loans become due and payable pursuant
to Section 9). The amounts described in clause (i) of the preceding sentence
shall be payable by the applicable Borrower; the amounts described in clauses
(ii) and (iii) of the preceding sentence shall be payable by the Company; and
the amounts described in clauses (iv) and (v) of the preceding sentence shall be
payable by the Canadian Borrower. Each Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans made to it from time to
time outstanding from the Closing Date until payment in full thereof at the
rates per annum, and on the dates, set forth in subsection 4.1.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of each Borrower to such
Lender resulting from each Loan of such Lender from time to time, including,
without limitation, the amounts of principal and interest payable and paid to
such Lender from time to time under this Agreement.
(c) The US Administrative Agent shall maintain the Register
pursuant to subsection 11.6(d), and a subaccount therein for each US$ Lender, in
which shall be recorded (i) the amount of each US Loan made hereunder, the Type
thereof and each Interest Period, if any, applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Company to each US$ Lender hereunder and (iii) both the amount of any sum
received by the US Administrative Agent hereunder from the Company and each US$
Lender's share thereof.
(d) The Canadian Administrative Agent shall maintain the
Register pursuant to subsection 11.6(d), and a subaccount therein for each C$
Lender, in which shall be recorded (i) the amount of each C$ Loan made hereunder
and whether such C$ Loan is, as applicable, a C$ Prime Loan or a Bankers'
Acceptance, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Canadian Borrower to
<PAGE> 47
42
each C$ Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each C$ Lender's share
thereof.
(e) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.15(c) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Borrower therein recorded; provided, however, that the
failure of any Lender or either Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of either Borrower to repay (with applicable interest) the Loans made
to such Borrower by such Lender in accordance with the terms of this Agreement.
2.16 Bankers' Acceptances. (a) The Canadian Borrower may issue
Bankers' Acceptances denominated in C$, for acceptance and, at the Canadian
Borrower's option, purchase by the C$ Lenders, each in accordance with the
provisions of this subsection 2.16.
(b) Procedures.
(1) Notice. The Canadian Borrower shall notify the Canadian
Administrative Agent by irrevocable written notice by 10:00 A.M.,
Toronto time, one Business Day prior to the Borrowing Date in respect
of any borrowing by way of Bankers' Acceptances.
(2) Minimum Borrowing Amount. Each borrowing by way of
Bankers' Acceptances shall be in a minimum aggregate face amount of
C$4,000,000 or a whole multiple of C$100,000 in excess thereof.
(3) Face Amounts. The face amount of each Bankers' Acceptance
shall be C$100,000 or any whole multiple thereof.
(4) Term. Bankers' Acceptances shall be issued and shall
mature on a Business Day. Each Bankers' Acceptance shall have a term of
30, 60, 90 or 180 days (or such shorter or longer term as shall be
agreed to by all of the C$ Lenders), shall mature on or before the
Canadian Revolving Credit Termination Date and shall be in form and
substance reasonably satisfactory to each C$ Lender.
(5) Bankers' Acceptances in Blank. To facilitate the
acceptance of Bankers' Acceptances under this Agreement, the Canadian
Borrower shall, from time to time as required, provide to each C$
Lender Drafts in form satisfactory to the C$ Lenders, duly executed and
endorsed in blank by the Canadian Borrower in quantities sufficient for
each C$ Lender to fulfill its obligations hereunder. Each C$ Lender is
hereby authorized to accept such Drafts endorsed in blank in such face
amounts as may be determined by such C$ Lender in accordance with the
provisions of this Agreement, provided that the aggregate amount
thereof is equal to the aggregate amount of Bankers' Acceptances
required to be accepted by such C$ Lender. No C$ Lender shall be
responsible or liable for its failure to accept a
<PAGE> 48
43
Bankers' Acceptance if the cause of such failure is, in whole or in
part, due to the failure of the Canadian Borrower to provide duly
executed and endorsed Drafts to the Canadian Administrative Agent on a
timely basis, nor shall any C$ Lender be liable for any damage, loss or
other claim arising by reason of any loss or improper use of any such
instrument except loss or improper use arising by reason of the gross
negligence or willful misconduct of such C$ Lender, its officers,
employees, agents or representatives. Each C$ Lender shall exercise
such care in the custody and safekeeping of Drafts as it would exercise
in the custody and safekeeping of similar property owned by it. Each C$
Lender will, upon the request of the Canadian Borrower, promptly advise
the Canadian Borrower of the number and designation, if any, of Drafts
then held by it for the Canadian Borrower. Each C$ Lender shall
maintain a record with respect to Drafts and Bankers' Acceptances (i)
received by it from the Canadian Borrower in blank hereunder, (ii)
voided by it for any reason, (iii) accepted by it hereunder, (iv)
purchased by it hereunder and (v) cancelled at their respective
maturities. Each C$ Lender further agrees to retain such records in the
manner and for the statutory periods provided in the various Canadian
provincial or federal statutes and regulations which apply to such C$
Lender.
(6) Execution of Bankers' Acceptances. Drafts of the Canadian
Borrower to be accepted as Bankers' Acceptances hereunder shall be duly
executed on behalf of the Canadian Borrower. Notwithstanding that any
person whose signature appears on any Bankers' Acceptance as a
signatory for the Canadian Borrower may no longer be an authorized
signatory for the Canadian Borrower at the date of issuance of a
Bankers' Acceptance, such signature shall nevertheless be valid and
sufficient for all purposes as if such authority had remained in force
at the time of such issuance, and any such Bankers' Acceptance so
signed shall be binding on the Canadian Borrower.
(7) Issuance of Bankers' Acceptances. Promptly following
receipt of a notice of borrowing by way of Bankers' Acceptances, the
Canadian Administrative Agent shall so advise the C$ Lenders and shall
advise each C$ Lender of the face amount of each Draft to be accepted
by it and the term thereof. The aggregate face amount of Draft to be
accepted by a C$ Lender shall be determined by the Canadian
Administrative Agent on a pro rata basis by reference to the respective
Canadian Revolving Credit Commitments or, in the case of the initial
borrowing of Canadian Tranche A Term Loans, the Canadian Tranche A Term
Loan Commitments, of the C$ Lenders, except that, if the face amount of
a Bankers' Acceptance, which would otherwise be accepted by a C$
Lender, would not be C$100,000 or a whole multiple thereof, such face
amount shall be increased or reduced by the Canadian Administrative
Agent in its sole and unfettered discretion to the nearest whole
multiple of C$100,000.
(8) Acceptance of Bankers' Acceptances. Each Draft to be
accepted by a C$ Lender shall be accepted at such C$ Lender's Canadian
Lending Office.
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44
(9) Purchase of Bankers' Acceptances. Each C$ Lender shall be
required to purchase (subject to the commercial availability of a
resale market in the case of Bankers' Acceptances with a term of
approximately 30, 60, 90 or 180 days, as the case may be) from the
Canadian Borrower on such Borrowing Date, at the Applicable BA Discount
Rate, the Bankers' Acceptances accepted by it on such Borrowing Date
and to provide to the Canadian Administrative Agent the BA Discount
Proceeds thereof not later than 12:00 Noon, Toronto time, on such
Borrowing Date for the account of the Canadian Borrower. The Acceptance
Fee payable by the Canadian Borrower to such C$ Lender under subsection
2.16(e) in respect of each Bankers' Acceptance accepted and purchased
by such C$ Lender from the Canadian Borrower shall be set off against
the BA Discount Proceeds payable by such C$ Lender under this
subsection 2.16(b)(9). Not later than 2:00 P.M., Toronto time, on such
Borrowing Date the Canadian Administrative Agent shall make such BA
Discount Proceeds available to the Canadian Borrower by crediting the
account of the Canadian Borrower on the books of the Canadian
Administrative Office with the aggregate of the amounts made available
to the Canadian Administrative Agent by the C$ Lenders and in like
funds as received by the Canadian Administrative Agent.
(10) Sale of Bankers' Acceptances. Each C$ Lender may at any
time and from time to time hold, sell, rediscount or otherwise dispose
of any or all Bankers' Acceptances accepted and purchased by it.
(11) Waiver of Presentment and Other Conditions. To the extent
permitted by applicable law, the Canadian Borrower waives presentment
for payment and any other defense to payment of any amounts due to a C$
Lender in respect of a Bankers' Acceptance accepted by it pursuant to
this Agreement which might exist solely by reason of such Bankers'
Acceptance being held, at the maturity thereof, by such C$ Lender in
its own right, and the Canadian Borrower agrees not to claim any days
of grace if such C$ Lender as holder sues the Canadian Borrower on the
Bankers' Acceptances for payment of the amount payable by the Canadian
Borrower thereunder.
(c) The Canadian Borrower shall reimburse the C$ Lender for,
and there shall become due and payable at 10:00 a.m., Toronto time, on the
maturity date for each Bankers' Acceptance, an amount in Canadian Dollars in
same day funds equal to the face amount of such Bankers' Acceptance. The
Canadian Borrower shall make each such reimbursement payment (i) by causing any
proceeds of Refunding Bankers' Acceptances issued in accordance with subsection
2.16(d) or conversion of such Bankers' Acceptance effected in accordance with
subsection 4.4(c) to be applied in reduction of such reimbursement payment; and
(ii) by depositing the amount of such reimbursement payment (or any portion
thereof remaining unpaid after any application referred to in clause (i)) to the
relevant payment account. The Canadian Borrower's payment in accordance with
this subsection shall satisfy its obligations under any Bankers' Acceptance to
which it relates, and the C$ Lender which has accepted such Bankers' Acceptance
shall thereafter be solely responsible for the payment of such Bankers'
Acceptance.
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45
(d) The Canadian Borrower shall give irrevocable written
notice (or such other method of notification as may be agreed upon between the
Canadian Administrative Agent and the Canadian Borrower) to the Canadian
Administrative Agent at or before 10:00 A.M., Toronto time, one Business Day
prior to the maturity date of each Bankers' Acceptance followed by written
confirmation electronically transmitted to the Canadian Administrative Agent on
the same day, of the Canadian Borrower's intention to issue a Bankers'
Acceptance on such maturity date (a "Refunding Bankers' Acceptance") to provide
for the payment of such maturing Bankers' Acceptance (it being understood that
payments by the Canadian Borrower and fundings by the C$ Lenders in respect of
each maturing Bankers' Acceptance and the related Refunding Bankers' Acceptance
shall be made on a net basis reflecting the difference between the face amount
of such maturing Bankers' Acceptance and the BA Discount Proceeds (net of the
applicable Acceptance Fee) of such Refunding Bankers' Acceptance). If the
Canadian Borrower fails to give such notice or does not deposit the amount of
reimbursement payment in accordance with subsection 2.16(c)(ii), the Canadian
Borrower shall be deemed to have requested that such maturing Bankers'
Acceptances be repaid with the proceeds of C$ Prime Loans (without any
requirement to give notice with respect thereto), commencing on the maturity
date of such maturing Bankers' Acceptances.
(e) An Acceptance Fee shall be payable by the Canadian
Borrower to each C$ Lender in advance (in the manner specified in subsection
2.16(b)(9)) upon the issuance of a Bankers' Acceptance to be accepted by such C$
Lender calculated at the rate per annum equal to the Applicable Margin, such
Acceptance Fee to be calculated on the face amount of such Bankers' Acceptance
and to be computed on the basis of the number of days in the term of such
Bankers' Acceptance.
(f) Upon the occurrence of any Event of Default which is
continuing, and in addition to any other rights or remedies of any C$ Lender and
the Canadian Administrative Agent hereunder, any C$ Lender or the Canadian
Administrative Agent (or such alternate arrangement as may be agreed upon by the
Canadian Borrower and such C$ Lender or the Canadian Administrative Agent, as
applicable) shall be entitled to deposit and retain in an account to be
maintained by the Canadian Administrative Agent (bearing interest at the
Canadian Administrative Agent's rates as may be applicable in respect of other
deposits of similar amounts for similar terms), for the ratable benefit of the
C$ Lenders, amounts which are received by such C$ Lender or the Canadian
Administrative Agent from the Canadian Borrower hereunder or as proceeds of the
exercise of any rights or remedies of any C$ Lender or the Canadian
Administrative Agent hereunder against the Canadian Borrower, to the extent such
amounts may be required to satisfy any contingent or unmatured obligations or
liabilities of the Canadian Borrower to the C$ Lenders or the Canadian
Administrative Agent, or any of them hereunder.
2.17 Circumstances Making Bankers' Acceptances Unavailable.
(a) If the Canadian Administrative Agent determines in good faith, which
determination shall be final, conclusive and binding upon the Canadian Borrower
absent manifest error, and notifies the Canadian Borrower that, by reason of
circumstances affecting the money market, there is no market for Bankers'
Acceptances, then
<PAGE> 51
46
(i) the right of the Canadian Borrower to request a borrowing
by way of Bankers' Acceptance shall be suspended until the Canadian
Administrative Agent determines that the circumstances causing such
suspension no longer exist and the Canadian Administrative Agent so
notifies the Canadian Borrower; and
(ii) any notice relating to a borrowing by way of Bankers'
Acceptance which is outstanding at such time shall be deemed to be a
notice requesting a borrowing by way of C$ Prime Loan (all as if it
were a notice given pursuant to subsection 2.5).
(b) The Canadian Administrative Agent shall promptly notify
the Canadian Borrower and the C$ Lenders of the suspension of the Canadian
Borrower's right to request a borrowing by way of Bankers' Acceptance and of the
termination of such suspension.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitments. (a) Subject to the terms and conditions
hereof, the US Issuing Lender, in reliance on the agreements of the other US$
Lenders set forth in subsection 3.4(a), agrees to issue letters of credit ("US
Letters of Credit") for the account of the Company on any Business Day during
the US Revolving Credit Commitment Period in such form as may be approved from
time to time by the US Issuing Lender; provided that the US Issuing Lender shall
have no obligation to issue any US Letter of Credit if, after giving effect to
such issuance, (i) the US L/C Obligations would exceed the US L/C Commitment or
(ii) the Available US Revolving Credit Commitment would be less than zero. On
the Closing Date all US Letters of Credit (as defined in the Existing Credit
Agreement) then outstanding on such date under the Existing Credit Agreement
shall automatically be deemed to be US Letters of Credit hereunder.
(b) Subject to the terms and conditions hereof, the Canadian
Issuing Lender, in reliance on the agreements of the other C$ Lenders set forth
in subsection 3.4(b), agrees to issue letters of credit ("Canadian Letters of
Credit"; together with the US Letters of Credit, the "Letters of Credit") for
the account of the Canadian Borrower on any Business Day during the Canadian
Revolving Credit Commitment Period in such form as may be approved from time to
time by the Canadian Issuing Lender; provided that the Canadian Issuing Lender
shall have no obligation to issue any Canadian Letter of Credit if, after giving
effect to such issuance, (i) the Canadian L/C Obligations would exceed the
Canadian L/C Commitment or (ii) the Available Canadian Revolving Credit
Commitment would be less than zero. On the Closing Date all Canadian Letters of
Credit (as defined in the Existing Credit Agreement) then outstanding on such
date under the Existing Credit Agreement shall automatically be deemed to be
Canadian Letters of Credit hereunder.
(c) Each Letter of Credit shall (i) in the case of the
Company, be denominated in US Dollars and shall be a stand-by letter of credit
issued to finance the working capital and
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47
business needs of the Company and its Subsidiaries (if any) in the ordinary
course of business, and, in the case of the Canadian Borrower, be denominated in
C$ and shall be a stand-by letter of credit issued to finance the working
capital and business needs of the Canadian Borrower and its Subsidiaries in the
ordinary course of business and (ii) expire no later than the earlier of (x) the
one year anniversary of its issuance and (y) the US Revolving Credit Commitment
Termination Date, in the case of US Letters of Credit, or the Canadian Revolving
Credit Commitment Termination Date, in the case of Canadian Letters of Credit;
provided that so long as no Event of Default has occurred and is continuing, any
Letter of Credit that expires prior to the US Revolving Credit Commitment
Termination Date or the Canadian Revolving Credit Commitment Termination Date,
as applicable, may be renewed at the request of the applicable Borrower for a
term of up to one year (or, if shorter, for a term expiring on the US Revolving
Credit Commitment Termination Date, in the case of US Letters of Credit, or the
Canadian Revolving Credit Commitment Termination Date, in the case of Canadian
Letters of Credit).
(d) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York, in the case of US Letters of Credit, and the laws of the Province of
Ontario and the laws of Canada applicable thereto, in the case of Canadian
Letters of Credit.
(e) Neither Issuing Lender shall at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause such Issuing Lender or any L/C Participant to exceed any limits imposed
by, any applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. (a) The
Company may from time to time request that the US Issuing Lender issue a US
Letter of Credit by delivering to the US Issuing Lender at its address for
notices specified herein an Application therefor, completed to the reasonable
satisfaction of the US Issuing Lender, and such other certificates, documents
and other papers and information as the US Issuing Lender may reasonably
request. Upon receipt of any Application, the US Issuing Lender will process
such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the US Letter of Credit requested
thereby (but in no event shall the US Issuing Lender be required to issue any US
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such US Letter of
Credit to the beneficiary thereof or as otherwise may be agreed by the US
Issuing Lender and the Company. The US Issuing Lender shall furnish a copy of
such US Letter of Credit to the Company promptly following the issuance thereof.
(b) The Canadian Borrower may from time to time request that
the Canadian Issuing Lender issue a Canadian Letter of Credit by delivering to
the Canadian Issuing Lender at its address for notices specified herein an
Application therefor, completed to the reasonable satisfaction of the Canadian
Issuing Lender, and such other certificates, documents and other papers and
information as the Canadian Issuing Lender may reasonably request. Upon receipt
of any Application, the Canadian Issuing Lender will process such Application
and the certificates, documents and other papers and information delivered to it
in connection therewith in accordance with its customary procedures and
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48
shall promptly issue the Canadian Letter of Credit requested thereby (but in no
event shall the Canadian Issuing Lender be required to issue any Canadian Letter
of Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Canadian Letter of
Credit to the beneficiary thereof or as otherwise may be agreed by the Canadian
Issuing Lender and the Canadian Borrower. The Canadian Issuing Lender shall
furnish a copy of such Canadian Letter of Credit to the Canadian Borrower
promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Company shall
pay to the US Administrative Agent, for the account of the US Issuing Lender and
the US L/C Participants, a letter of credit fee with respect to each US Letter
of Credit, computed for the period from and including the date of issuance of
such US Letter of Credit to the expiration date of such US Letter of Credit,
computed at a rate per annum equal to the Applicable Margin then in effect for
Eurodollar Loans that are US Revolving Credit Loans calculated on the basis of
the actual number of days elapsed over a 360-day year, of the aggregate face
amount of US Letters of Credit outstanding, payable in arrears on each L/C Fee
Payment Date and on the US Revolving Credit Commitment Termination Date. Such
fee shall be payable to the US Administrative Agent to be shared ratably among
the US Revolving Credit Lenders in accordance with their respective US Revolving
Credit Commitment Percentages. In addition, the Company shall pay to the US
Issuing Lender, for its own account a fee equal to 0.25% per annum of the
aggregate face amount of outstanding US Letters of Credit, payable quarterly in
arrears on each L/C Fee Payment Date and on the US Revolving Credit Commitment
Termination Date and calculated on the basis of the actual number of days
elapsed over a 360-day year.
(b) The Canadian Borrower shall pay to the Canadian
Administrative Agent, for the account of the Canadian Issuing Lender and the
Canadian L/C Participants, a letter of credit fee with respect to each Canadian
Letter of Credit, computed for the period from and including the date of
issuance of such Canadian Letter of Credit to the expiration date of such
Canadian Letter of Credit, computed at a rate per annum equal to the Applicable
Margin then in effect for Bankers' Acceptances that are Canadian Revolving
Credit Loans calculated on the basis of the actual number of days elapsed over a
365-day year, of the aggregate face amount of Canadian Letters of Credit
outstanding, payable annually in advance on the date of issuance of each
Canadian Letter of Credit and on each anniversary thereof to occur thereafter on
which a Canadian Letter of Credit shall remain outstanding. Such fee shall be
payable to the Canadian Administrative Agent to be shared ratably among the
Canadian Revolving Credit Lenders in accordance with their respective Canadian
Revolving Credit Commitment Percentages. In addition, the Canadian Borrower
shall pay to the Canadian Issuing Lender, for its own account, a fee equal to
0.25% per annum of the aggregate face amount of outstanding Canadian Letters of
Credit, payable quarterly in advance on the date of issuance of each Canadian
Letter of Credit and on each L/C Fee Payment Date to occur thereafter on which a
Canadian Letter of Credit shall remain outstanding and calculated on the basis
of the actual number of days elapsed over a 365-day year.
<PAGE> 54
49
(c) In addition to the foregoing fees and commissions, each
Borrower shall pay or reimburse the US Issuing Lender, in the case of the
Company, and the Canadian Issuing Lender, in the case of the Canadian Borrower,
for such normal and customary costs and expenses as are incurred or charged by
such Issuing Lender in issuing, effecting payment under, amending or otherwise
administering any Letter of Credit.
(d) Each Administrative Agent shall, promptly following its
receipt thereof, distribute to the applicable Issuing Lender and the applicable
L/C Participants all fees and commissions received by such Administrative Agent
for their respective accounts pursuant to this subsection.
3.4 L/C Participations. (a) The US Issuing Lender irrevocably
agrees to grant and hereby grants to each US L/C Participant, and, to induce the
US Issuing Lender to issue US Letters of Credit hereunder, each US L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from the US Issuing Lender, on the terms and conditions hereinafter
stated, for such US L/C Participant's own account and risk an undivided interest
equal to such US L/C Participant's US Revolving Credit Commitment Percentage in
the US Issuing Lender's obligations and rights under each US Letter of Credit
issued hereunder and the amount of each draft paid by the US Issuing Lender
thereunder. Each US L/C Participant unconditionally and irrevocably agrees with
the US Issuing Lender that, if a draft is paid under any US Letter of Credit for
which the US Issuing Lender is not reimbursed in full by the Company in
accordance with the terms of this Agreement, such US L/C Participant shall pay
to the US Issuing Lender upon demand at the US Issuing Lender's address for
notices specified herein an amount equal to such US L/C Participant's US
Revolving Credit Commitment Percentage of the amount of such draft, or any part
thereof, which is not so reimbursed; provided that, if such demand is made prior
to 12:00 Noon, New York City time, on a Business Day, such US L/C Participant
shall make such payment to the US Issuing Lender prior to the end of such
Business Day and otherwise such US L/C Participant shall make such payment on
the next succeeding Business Day.
(b) The Canadian Issuing Lender irrevocably agrees to grant
and hereby grants to each Canadian L/C Participant, and, to induce the Canadian
Issuing Lender to issue Canadian Letters of Credit hereunder, each Canadian L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from the Canadian Issuing Lender, on the terms and conditions
hereinafter stated, for such Canadian L/C Participant's own account and risk an
undivided interest equal to such Canadian L/C Participant's Canadian Revolving
Credit Commitment Percentage in the Canadian Issuing Lender's obligations and
rights under each Canadian Letter of Credit issued hereunder and the amount of
each draft paid by the Canadian Issuing Lender thereunder. Each Canadian L/C
Participant unconditionally and irrevocably agrees with the Canadian Issuing
Lender that, if a draft is paid under any Canadian Letter of Credit for which
the Canadian Issuing Lender is not reimbursed in full by the Canadian Borrower
in accordance with the terms of this Agreement, such Canadian L/C Participant
shall pay to the Canadian Issuing Lender upon demand at the Canadian Issuing
Lender's address for notices specified herein an amount equal to such Canadian
L/C Participant's Canadian Revolving Credit Commitment
<PAGE> 55
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Percentage of the amount of such draft, or any part thereof, which is not so
reimbursed; provided that, if such demand is made prior to 12:00 Noon, Toronto
time, on a Business Day, such Canadian L/C Participant shall make such payment
to the Canadian Issuing Lender prior to the end of such Business Day and
otherwise such Canadian L/C Participant shall make such payment on the next
succeeding Business Day.
(c) If any amount required to be paid by any L/C Participant
to any Issuing Lender pursuant to subsection 3.4(a) or 3.4(b) in respect of any
unreimbursed portion of any payment made by such Issuing Lender under any Letter
of Credit is paid to such Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to such Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal Funds Rate, in the case of US Letters of Credit, and the
then effective CDOR Rate, in the case of Canadian Letters of Credit, as quoted
by such Issuing Lender, during the period from and including the date such
payment is required to the date on which such payment is immediately available
to such Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
subsection 3.4(a) or 3.4(b) is not in fact made available to such Issuing Lender
by such L/C Participant within three Business Days after the date such payment
is due, such Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to ABR Loans, in the case of the US
Issuing Lender, or C$ Prime Loans, in the case of the Canadian Issuing Lender,
hereunder. A certificate of an Issuing Lender submitted to any L/C Participant
with respect to any amounts owing under this subsection shall be conclusive in
the absence of manifest error.
(d) Whenever, at any time after any Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 3.4(a) or 3.4(b),
such Issuing Lender receives any payment related to such Letter of Credit
(whether directly from the applicable Borrower or otherwise, including proceeds
of collateral applied thereto by such Issuing Lender), or any payment of
interest on account thereof, such Issuing Lender will distribute to such L/C
Participant its pro rata share thereof; provided, however, that in the event
that any such payment received by such Issuing Lender shall be required to be
returned by such Issuing Lender, such L/C Participant shall return to such
Issuing Lender the portion thereof previously distributed by such Issuing Lender
to it.
3.5 L/C Reimbursement Obligations of the Borrower. (a) The
Company agrees to reimburse the US Issuing Lender, and the Canadian Borrower
agrees to reimburse the Canadian Issuing Lender, on each date on which such
Issuing Lender notifies such Borrower of the date and amount of a draft
presented under any Letter of Credit and paid by such Issuing Lender for the
amount of (i) such draft so paid and (ii) any taxes, fees, charges or other
costs or expenses incurred by such Issuing Lender in connection with such
payment. Each such payment shall be made to such Issuing Lender at its address
for notices specified herein in US$, in the case of the US Issuing Lender, and
in C$, in the case of the Canadian Issuing Lender, and in immediately available
funds.
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(b) Interest shall be payable by each Borrower on any and all
amounts remaining unpaid by such Borrower under this subsection from the date
such amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate which would be payable on any
outstanding ABR Loans, in the case of the Company, and C$ Prime Loans, in the
case of the Canadian Borrower, in each case which were then overdue.
(c) Each drawing under any Letter of Credit shall constitute a
request by the Borrower that is the account party in respect thereof to the
applicable Administrative Agent for a borrowing pursuant to subsection 2.4 of
ABR Loans, in the case of US Letters of Credit, or a borrowing pursuant to
subsection 2.5 of C$ Prime Loans, in the case of Canadian Letters of Credit, in
the amount of such drawing. The Borrowing Date with respect to such borrowing
shall be the date of such drawing.
3.6 Obligations Absolute. (a) Each Borrower's obligations
under this Section shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which such Borrower may have or have had against any Issuing Lender or
any beneficiary of a Letter of Credit.
(b) The Company also agrees with the US Issuing Lender, and
the Canadian Borrower agrees with the Canadian Issuing Lender, that such Issuing
Lender shall not be responsible for, and such Borrower's L/C Reimbursement
Obligations under subsection shall not be affected by, among other things, (i)
subject to subsection 3.7, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or (ii) any dispute between or among such
Borrower and any beneficiary of any Letter of Credit or any other party to which
such Letter of Credit may be transferred or (iii) any claims whatsoever of such
Borrower against any beneficiary of such Letter of Credit or any such
transferee.
(c) No Issuing Lender shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions caused by such Issuing Lender's gross negligence or willful
misconduct.
(d) Each Borrower agrees that any action taken or omitted by
either Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York and the Uniform Customs, in the
case of US Letters of Credit, or the laws of the Province of Ontario and the
Uniform Customs, in the case of Canadian Letters of Credit, shall be binding on
such Borrower and shall not result in any liability of such Issuing Lender to
such Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender in respect thereof
shall promptly notify the Borrower that is the account party in respect thereof
of the date and amount thereof. The
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52
responsibility of such Issuing Lender to such Borrower in connection with any
draft presented for payment under any such Letter of Credit shall, in addition
to any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered under
such Letter of Credit in connection with such presentment are in conformity with
such Letter of Credit.
3.8 Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section , the provisions of this Section shall apply.
SECTION 4. GENERAL PROVISIONS
4.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest for each day on the
unpaid principal amount thereof at a rate per annum equal to the ABR determined
for such day plus the Applicable Margin.
(c) Each C$ Prime Loan shall bear interest for each day on the
unpaid principal amount thereof at a rate per annum equal to the C$ Prime Rate
determined for such day plus the Applicable Margin.
(d) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or (y) in the case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest,
commitment fee or other amount is paid in full (as well after as before
judgment).
(e) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (d) of this
subsection shall be payable from time to time on demand. Interest in respect of
US$ Loans (and all other amounts denominated in US$) shall be payable in US$,
and interest in respect of C$ Loans (and all other amounts denominated in C$)
shall be payable in C$.
(f) (i) If any provision of this Agreement would obligate any
Loan Party to make any payment of interest or other amount payable to any Lender
in an amount or calculated at a rate which would be prohibited by law or would
result in a receipt by such Lender of interest at a criminal rate (as such terms
are construed under the Criminal Code
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53
(Canada)), then notwithstanding such provision, such amount or rate shall be
deemed to have been adjusted with retroactive effect to the maximum amount or
rate of interest, as the case may be, as would not be so prohibited by law or so
result in a receipt by such Lender of interest at a criminal rate, such
adjustment to be effected, to the extent necessary, as follows:
(x) first, by reducing the amount or rates of interest required to
be paid under this subsection 4.1; and
(y) thereafter, by reducing any fees, commissions, premiums and
other amounts which would constitute interest for purposes of
Section 347 of the Criminal Code (Canada).
(ii) If, notwithstanding the provisions of clause (i) of this
subsection 4.1(f), and after giving effect to all adjustments contemplated
thereby, any Lender shall have received an amount in excess of the maximum
permitted by such clause, then the applicable Loan Party shall be entitled, by
notice in writing to such Lender, to obtain reimbursement from such Lender of an
amount equal to such excess, and, pending such reimbursement, such amount shall
be deemed to be an amount payable by such Lender to such Loan Party.
(iii) Any amount or rate of interest referred to in this
subsection 4.1(f) shall be determined in accordance with generally accepted
actuarial practices and principles as an effective annual rate of interest over
the term of any Loan on the assumption that any charges, fees or expenses that
fall within the meaning of "interest" (as defined in the Criminal Code (Canada))
shall, if they relate to a specific period of time, be prorated over that period
of time and otherwise be prorated over the period from the Closing Date to the
Canadian Revolving Credit Termination Date or the scheduled final maturity of
the Canadian Tranche A Term Loans or Canadian Tranche B Term Loans, as
applicable, and, in the event of dispute, a certificate of a Fellow of the
Canadian Institute of Actuaries appointed by the Canadian Administrative Agent
shall be conclusive for the purposes of such determination absent manifest
error.
4.2 Optional Prepayments. (a) Each Borrower may at any time
and from time to time prepay the Loans made to it in whole or in part, without
premium or penalty on any Business Day, provided that (i) the Borrower shall
have given (x) at least three Business Days' irrevocable notice to the relevant
Administrative Agent (in the case of Eurodollar Loans) or (y) one Business Day's
irrevocable notice to the relevant Administrative Agent (otherwise), (ii) such
notice specifies, in the case of any prepayment of Loans, the date and amount of
prepayment and whether the prepayment is (x) of Term Loans or Revolving Credit
Loans, or a combination thereof, and in each case if a combination thereof, the
amount allocable to each, (y) the Type of Loan to be prepaid, and if a
combination thereof, the principal amount allocable to each and (iii) each
prepayment is in a minimum principal amount of US$1,000,000 or C$1,000,000, as
the case may be, and a multiple of US$100,000 or C$100,000, as the case may be,
in excess thereof. Upon the receipt of any such notice the relevant
Administrative Agent shall promptly notify each of the relevant Lenders thereof.
If any such notice is given, the amount specified in such
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notice shall be due and payable on the date specified therein, together with any
amounts payable pursuant to subsection 4.12, if any, and, in the case of
prepayments of the US Term Loans only, accrued interest to such date on the
amount prepaid.
(b) Partial prepayments of (i) the US Term Loans pursuant to
this subsection shall be applied (x) pro rata (based on outstanding principal
amount) to the US Tranche A Term Loans and the US Tranche B Term Loans and (y)
to the respective installments of principal of such Term Loans in the inverse
order of the respective maturity dates thereof, (ii) the Canadian Term Loans
pursuant to this subsection shall be applied (x) pro rata (based on outstanding
principal amount, with all amounts denominated in C$ included in any
computations pursuant to this clause at the US$ Equivalent thereof) to the
Canadian Tranche A Term Loans and the Canadian Tranche B Term Loans and (y) to
the respective installments of principal of such Term Loans in the inverse order
of the respective maturity dates thereof (subject to the proviso to clause
(c)(iii) below), (iii) the US Revolving Credit Loans and the US Letters of
Credit pursuant to this subsection shall be applied on a pro rata basis, first,
to payment of the US Revolving Credit Loans then outstanding and, then, to cash
collateralize any outstanding US L/C Obligations upon terms reasonably
satisfactory to the US Administrative Agent and (iv) the Canadian Revolving
Credit Loans and the Canadian Letters of Credit pursuant to this subsection
shall be applied on a pro rata basis, first, to payment of the Canadian
Revolving Credit Loans then outstanding and, then, to cash collateralize any
outstanding Canadian L/C Obligations and Bankers' Acceptances upon terms
reasonably satisfactory to the Canadian Administrative Agent.
(c) Notwithstanding the foregoing, (i) subject to clause (iii)
below, so long as any US Tranche A Term Loans remain outstanding, any Lender
having a US Tranche B Term Loan outstanding may decline receipt of its share of
any such prepayment, and, if such Lender so declines, such share shall be
applied as an additional prepayment of the US Tranche A Term Loans in accordance
with the preceding clause (b)(i)(y), (ii) subject to clause (iii) below, so long
as any Canadian Tranche A Term Loans remain outstanding, any Lender having a
Canadian Tranche B Term Loan outstanding may decline receipt of its share of any
such prepayment, and, if such Lender so declines, such share shall be applied as
an additional prepayment of the Canadian Tranche A Term Loans in accordance with
the preceding clause (b)(ii)(y), and (iii) during the period from the Closing
Date to and including December 31, 1996, the Company may make partial
prepayments of US Tranche B Term Loans in an aggregate amount not to exceed the
lesser of (x) $100,000,000 and (y) the excess over $150,000,000 of the gross
cash proceeds to the Company of the issuance of the Subordinated Indebtedness
without making corresponding pro rata prepayments of Tranche A Loans, and
Lenders having US Tranche B Term Loans outstanding at the time of any such
prepayment shall not have the option to decline such prepayment as described in
clause (i) above, provided that all such prepayments of US Tranche B Term Loans
with such gross cash proceeds shall be applied pro rata to the remaining
installments thereof. Any such Lender that wishes to decline receipt of its
share of any such prepayment in accordance with the preceding clauses (c)(i) and
(c)(ii) shall promptly, and in any event no later than the date specified for
such prepayment, notify the Administrative Agent. Notwithstanding anything to
the contrary above, C$ Loans consisting of Bankers'
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55
Acceptances may not be prepaid pursuant to this subsection. Term Loans prepaid
pursuant to this subsection may not be reborrowed.
4.3 Mandatory Prepayments and Reduction of Revolving Credit
Commitments. (a) If there shall be Excess Cash Flow with respect to any fiscal
year, commencing with the fiscal year ending December 31, 1997, and the Total
Leverage Ratio on the last day of such fiscal year is not less than 4.00:1.00,
then on the date that is the earlier of (i) the date on which the audited
financial statements for such fiscal year are required to be delivered pursuant
to subsection 7.1(a) and (ii) the date two Business Days after the delivery of
such financial statements, an amount equal to 50% of such Excess Cash Flow shall
be applied toward the prepayment of the Loans and the permanent reduction of the
Revolving Credit Commitments first, by the Company in accordance with subsection
4.3(f)(i) and then, by the Canadian Borrower in accordance with subsection
4.3(f)(ii).
(b) If, subsequent to the Closing Date, the Company shall
issue any Capital Stock, then an amount equal to 100% of the Net Cash Proceeds
thereof shall, on the first Business Day after receipt thereof, be applied
toward the prepayment of the Loans and the permanent reduction of the Revolving
Credit Commitments first, by the Company in accordance with subsection 4.3(f)(i)
and then, by the Canadian Borrower in accordance with subsection 4.3(f)(ii),
provided that (A) in the case of any such issuance occurring (i) at a time when
no Default or Event of Default has occurred and is continuing and (ii) at a time
when the Total Leverage Ratio as at the end of the most recently ended fiscal
quarter of the Company for which financial statements have been delivered
pursuant to subsection 7.1 is less than 5.00:1.00, the such prepayment shall not
be required in respect of such issuance and (B) in the case of any such issuance
occurring (i) at a time when no Default or Event of Default has occurred and is
continuing and (ii) at a time when the Total Leverage Ratio as at the end of the
two consecutive fiscal quarters of the Company for which financial statements
have been delivered pursuant to subsection 7.1 most recently ended prior to such
time is less than 5.00:1.00, the Company may apply a portion of the Net Cash
Proceeds thereof to repurchase Subordinated Indebtedness permitted to be so
repurchased under the Senior Subordinated Indenture at a premium of not greater
than 1% so long as an amount of such Net Cash Proceeds equal to the amount of
such portion so applied is simultaneously applied toward the prepayment of the
Loans and the permanent reduction of the Revolving Credit Commitments in
accordance with subsection 4.3(f).
(c) If, subsequent to the Closing Date, either Borrower or any
of its Subsidiaries shall receive Net Cash Proceeds from any asset sale or other
disposition permitted by subsection 8.6(d), then an amount equal to 100% of such
Net Cash Proceeds shall on the first Business Day after receipt thereof, be
applied toward the prepayment of the Loans and the permanent reduction of the
Revolving Credit Commitments in accordance with subsection 4.3(f); provided that
(i) such Net Cash Proceeds from any such asset sales or other dispositions shall
not be required to be so applied until the aggregate amount of such unapplied
Net Cash Proceeds exceeds $2,000,000 in the aggregate, at which time an amount
equal to 100% of such unapplied Net Cash Proceeds shall be applied immediately
toward the prepayment of the Loans and the permanent reduction of the Revolving
Credit Commitments in accordance with subsection 4.3(f), and (ii) such Borrower
may notify the relevant Administrative Agent in writing that it intends to use
the Net Cash Proceeds from any such asset sale or other disposition to acquire
fixed or capital assets within 269 days of receipt of such Net Cash Proceeds, in
which case the prepayment and reduction otherwise required by this paragraph
need not be made, but if such Net Cash Proceeds are not so used within such
269-day period, an amount equal to such Net Cash Proceeds shall be applied
toward the repayment of the Loans and the permanent reduction of the Revolving
Credit
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56
Commitments in accordance with subsection 4.3(f) on the earlier of (x) the 269th
day after receipt of such Net Cash Proceeds and (y) the date on which such
Borrower has reasonably determined that such Net Cash proceeds shall not be so
used; provided, further, that such Net Cash Proceeds from any such asset sales
or other disposition to the extent that they may be used for the purposes
described in clause (ii) of the immediately preceding proviso within 269 days of
receipt thereof shall, if requested by the relevant Administrative Agent, be
deposited with such Administrative Agent which shall hold such Net Cash Proceeds
in a cash collateral account upon terms reasonably satisfactory for the period
beginning on the date of receipt thereof and ending on the date on which such
Net Cash Proceeds are used for the purposes described in clause (ii) of the
immediately preceding proviso or are applied toward the repayment of the Loans
and the permanent reduction of the Revolving Credit Commitments pursuant to such
clause.
(d) If, subsequent to the Closing Date, either Borrower or any
of its Subsidiaries shall receive any cash proceeds of any casualty or
condemnation with respect to any of its property or assets, then an amount equal
to 100% of such proceeds shall on the first Business Day after receipt thereof
be deposited with the relevant Administrative Agent which shall hold such
proceeds in a cash collateral account upon terms reasonably satisfactory to it.
From time to time upon the request of such Borrower, such Administrative Agent
shall (in accordance, in the case of any such proceeds related to property that
is covered by a Mortgage, with the applicable terms and conditions of such
Mortgage) release such proceeds to such Borrower or such Subsidiary, as
necessary, to pay for replacement or rebuilding of the property lost or
condemned. If such property is not replaced or rebuilt within 179 days following
the condemnation or casualty or if such Borrower fails to notify such
Administrative Agent in writing on or before 179 days after such casualty or
condemnation that such Borrower has commenced the replacement or rebuilding of
such property, then, in either case, such Administrative Agent shall apply any
amounts in the cash collateral account toward the prepayment of the Loans and
the permanent reduction of the Revolving Credit Commitments in accordance with
subsection 4.3(f).
(e) If (i) at any time during the US Revolving Credit
Commitment Period, the Aggregate Outstanding US Revolving Extensions of Credit
with respect to all US Revolving Credit Lenders exceeds the aggregate US
Revolving Credit Commitments then in effect, the Company shall, without notice
or demand, immediately repay the US Revolving Credit Loans in an aggregate
principal amount equal to such excess, or (ii)) at any time during the Canadian
Revolving Credit Commitment Period, the Aggregate Outstanding Canadian Revolving
Extensions of Credit with respect to all Canadian Revolving Credit Lenders
exceeds the aggregate Canadian Revolving Credit Commitments then in effect, the
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57
Canadian Borrower shall, without notice or demand, immediately repay the
Canadian Revolving Credit Loans that are C$ Prime Loans (or, in the case of
Bankers' Acceptances, cash collateralize such Bankers' Acceptances as set forth
below) in an aggregate principal amount equal to such excess, in each case
together with interest accrued to the date of such payment or prepayment and any
amounts payable under subsection 4.12, if any. To the extent that after giving
effect to any prepayment of the US Revolving Credit Loans required by the
preceding sentence, the Aggregate Outstanding US Revolving Extensions of Credit
with respect to all US Revolving Credit Lenders exceeds the aggregate US
Revolving Credit Commitments then in effect, the Company shall, without notice
or demand, immediately cash collateralize the then outstanding US L/C
Obligations in an amount equal to such excess upon terms reasonably satisfactory
to the relevant Administrative Agent. To the extent that after giving effect to
any prepayment of the Canadian Revolving Credit Loans required by the preceding
sentence, the Aggregate Outstanding Canadian Revolving Extensions of Credit with
respect to all Canadian Revolving Credit Lenders exceeds the aggregate Canadian
Revolving Credit Commitments then in effect, the Canadian Borrower shall,
without notice or demand, immediately cash collateralize the then outstanding
Bankers' Acceptances and/or Canadian L/C Obligations in an amount equal to such
excess upon terms reasonably satisfactory to the relevant Administrative Agent.
On the Business Day next succeeding the date on which a payment has caused such
Aggregate Outstanding US Revolving Extensions of Credit with respect to all such
US Revolving Credit Lenders to be equal to or less than the US Revolving Credit
Commitments then in effect, the US Administrative Agent shall return to the US
Borrower the cash used to cash collateralize such then outstanding L/C
Obligations pursuant to the second preceding sentence; on the Business Day next
succeeding the date on which a payment has caused such Aggregate Outstanding
Canadian Revolving Extensions of Credit with respect to all such Canadian
Revolving Credit Lenders to be equal to or less than the Canadian Revolving
Credit Commitments then in effect, the Canadian Administrative Agent shall
return to the Canadian Borrower the cash used to cash collateralize such
respective then outstanding Bankers' Acceptances and Canadian L/C Obligations
pursuant to the preceding sentence.
(f) (i) Prepayments of the Loans and permanent reductions of
the Revolving Credit Commitments by the Company pursuant to subsections 4.3(a),
(b), (c), (d) and (f)(ii) shall be applied, first, to payment of the US Term
Loans then outstanding, second, (to the extent that there are no US Term Loans
then outstanding) to permanent reduction of the US Revolving Credit Commitments
then in effect, and, if any such amount remains unapplied, the Canadian Borrower
shall, to the extent of such unapplied amount, be obligated to make a prepayment
of the C$ Loans and a permanent reduction of the Canadian Revolving Credit
Commitments in accordance with subsection 4.3(f)(ii). Such prepayments of the
Term Loans pursuant to subsections 4.3(a), (b), (c), (d) and (f)(ii) shall be
applied (x) pro rata (based on outstanding principal amount) to the US Tranche A
Term Loans and the US Tranche B Term Loans and (y) to the respective
installments of principal of such respective Term Loans in the inverse order of
the respective maturity dates thereof.
(ii) Prepayments of the Loans and permanent reductions of the
Revolving Credit Commitments by the Canadian Borrower pursuant to subsections
4.3 (a), (b), (c), (d) and (f)(i) shall be applied, first, to payment of the
Canadian Term Loans then outstanding,
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second, (to the extent that there are no Term Loans then outstanding) to
permanent reduction of the Canadian Revolving Credit Commitments then in effect,
and, if any such amount remains unapplied, the Company shall, to the extent of
such unapplied amount, be obligated to make a prepayment of the US Term Loans
and a permanent reduction of the US Revolving Credit Commitments in accordance
with subsection 4.3(f)(i). Such prepayments of the Canadian Term Loans pursuant
to subsections 4.3(a), (b), (c), (d) and (f)(i) shall be applied (x) pro rata
(based on outstanding principal amount) to the Canadian Tranche A Term Loans
and, subject to the limitations set forth in clause (f)(iii) below, the Canadian
Tranche B Term Loans and (y) to the respective installments of principal of such
respective Term Loans in the inverse order of the respective maturity dates
thereof.
(iii) Notwithstanding any other provision of this subsection
4.3, at no time during the period from the Original Closing Date through the
first day following the fifth anniversary of the Closing Date (unless the
Canadian Tranche B Term Loans shall have become due and payable by acceleration
under this Agreement following the occurrence of an Event of Default) shall any
prepayments of the Canadian Tranche B Term Loans be required to be made by the
Canadian Borrower pursuant to this subsection 4.3 to the extent that, after
giving effect to such prepayment, the sum of (A) the aggregate amount of
prepayments of Canadian Tranche B Term Loans made pursuant to subsection 4.3 at
or prior to such first day and (B) the aggregate amount of repayments of
Canadian Tranche B Term Loans scheduled to be made pursuant to subsections 2.13
at or prior to such first day would exceed an amount equal to 25% of the
aggregate amount originally advanced under the Canadian Tranche B Term Loan
Commitments to the Canadian Borrower.
(iv) Notwithstanding the foregoing clauses (f)(i) and (f)(ii),
(A) so long as any US Tranche A Term Loans remain outstanding, any Lender having
a US Tranche B Term Loan outstanding may decline receipt of its share of any
such prepayment otherwise required to be made by it pursuant to this subsection
4.3 to the extent that the aggregate amount so declined does not exceed the
aggregate amount of US Tranche A Loans outstanding at such time, and, if such
Lender so declines, such share shall be applied as an additional prepayment of
the US Tranche A Term Loans in accordance with clause (f)(i)(y) of this
subsection, and (B) so long as any Canadian Tranche A Term Loans remain
outstanding, any Lender having a Canadian Tranche B Term Loan outstanding may
decline receipt of its share of any such prepayment otherwise required to be
made by it pursuant to this subsection 4.3 (including, without limitation, the
provisions of paragraph (f)(iii) of this subsection) to the extent that the
aggregate amount so declined does not exceed the aggregate amount of Canadian
Tranche A Loans outstanding at such time, and, if such Lender so declines, such
share shall be applied as an additional prepayment of the Canadian Tranche A
Term Loans in accordance with the foregoing clause (f)(ii)(y) of this
subsection. Any such Lender that wishes to decline receipt of its share of any
such prepayment shall promptly, and in any event no later than the date
specified for such prepayment, notify the relevant Administrative Agent.
(v) Notwithstanding foregoing provisions of this subsection
4.3(f) (but subject, nevertheless, to subsection 4.3(f)(iii)), if at the time
any prepayment of the Loans and permanent reductions of the Revolving Credit
Commitments shall be required to be
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made pursuant to the provisions of subsection 4.3(a), (b), (c), (d), (f)(i) or
(f)(ii) an Event of Default shall have occurred and be continuing, such
prepayment shall be applied to the payment of all the Loans and L/C Obligations
then outstanding pro rata according to the respective amounts thereof, and each
of the Revolving Credit Commitments shall be automatically reduced by an amount
equal to that portion of such prepayments as shall have been allocated to the
Revolving Credit Loans and L/C Obligations then outstanding under such Revolving
Credit Commitment. For purposes of calculations pursuant to this clause (v) all
amounts denominated in Canadian Dollars shall be converted to US Dollars at the
US$ Equivalent amount thereof. Prepayments, pursuant to this clause (v) in
respect of the US Term Loans US and Revolving Credit Loans shall be made by the
Company, and prepayments pursuant to this clause (v) in respect of the Canadian
Term Loans and Canadian Revolving Credit Loans shall be made by the Canadian
Borrower.
(g) Notwithstanding anything to the contrary contained above,
all prepayments of each Loan shall be made in the currency in which such Loans
were made, all cash collateralization of Canadian L/C Obligations and Bankers'
Acceptances shall be made in Canadian Dollars and all cash collateralization of
US L/C Obligations shall be made in US Dollars. For purposes of determining the
amounts required to be applied, conversions of one currency to another are
assumed to be made by using the C$ Equivalent or US$ Equivalent, as the case may
be, of amounts received in the other currency. However, it shall remain the
responsibility of the respective Borrower to convert amounts received in one
currency into the other to the extent needed to repay, or cash collateralize,
Loans, L/C Obligations or Bankers' Acceptances maintained in the other such
currency.
(h) Amounts prepaid on account of Term Loans pursuant to this
subsection may not be reborrowed. Each prepayment pursuant to this subsection
shall be accompanied by payment of accrued interest on the amount prepaid.
4.4 Conversion and Continuation Options. (a) Each Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
US Administrative Agent at least two Business Days, or the Canadian
Administrative Agent, as applicable, at least three Business Days,' prior
irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. Each Borrower may elect from time to time to convert ABR Loans
to Eurodollar Loans by giving the US Administrative Agent or the Canadian
Administrative Agent, as applicable, at least three Business Days, prior
irrevocable notice of such election. Any such notice of conversion to Eurodollar
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice, such Administrative Agent
shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans and ABR Loans may be converted as provided herein, provided
that (i) no Loan may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the US Administrative Agent has or
the Majority Lenders have determined that such a conversion is not appropriate
and (ii) no Loan may be converted into a Eurodollar Loan after the date that is
one month prior to the US Revolving Credit Termination Date (in the case of
conversions of US Revolving Credit
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Loans) or the date of the final installment of principal of the tranche of Term
Loans of which such Loan is a part.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
applicable Borrower giving notice to the applicable Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period" set
forth in subsection 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan may be continued as
such (i) when any Event of Default has occurred and is continuing and either
Administrative Agent has or the Majority Lenders have determined that such a
continuation is not appropriate or (ii) after the date that is one month prior
to the US Revolving Credit Commitment Termination Date (in the case of
conversions of US Revolving Credit Loans) or the date of the final installment
of principal of the tranche of Term Loans of which such Loan is a part, and
provided, further, that if either Borrower shall fail to give any required
notice as described above in this paragraph or if such continuation is not
permitted pursuant to the preceding proviso such Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest Period.
(c) Subject to the provisions of this Agreement, the Canadian
Borrower may, prior to the Canadian Revolving Credit Termination Date or, as the
case may be, the final maturity date of the Canadian Tranche A Term Loans,
effective on any Business Day, convert, in whole or in part, C$ Prime Loans into
Bankers' Acceptances or vice versa upon giving to the Canadian Administrative
Agent prior irrevocable telephone or written notice within the notice period and
in the form which would be required to be given to the Canadian Administrative
Agent in respect of the category of C$ Loan into which the outstanding C$ Loan
is to be converted in accordance with the provisions of subsection 2.5 or 2.16,
as applicable, followed, in the case of telephone notice, by written
confirmation on the same day, provided that:
(a) no C$ Prime Loan may be converted into a Bankers' Acceptance
when any Event of Default has occurred and is continuing and
the Canadian Administrative Agent has or the Majority Lenders
have determined that such conversion is not appropriate;
(b) each conversion to Bankers' Acceptances shall be for an
aggregate amount of C$4,000,000 (and whole multiples of
C$100,000 in excess thereof), and each conversion to C$ Prime
Loans shall be in a minimum aggregate amount of C$4,000,000;
and
(c) Bankers' Acceptances may be converted only on the maturity
date of such Bankers' Acceptances and, provided that, if less
than all Bankers' Acceptances are converted, then after such
conversion not less than C$4,000,000 (and whole multiples of
C$100,000 in excess thereof) shall remain as Bankers'
Acceptances.
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61
4.5 Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of US Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the aggregate
principal amount of the Loans comprising (i) each Tranche shall be equal to
US$2,500,000 or a whole multiple of US$100,000 in excess thereof, in the case of
US$ Loans, and C$4,000,000 or a whole multiple of C$100,000 in excess thereof,
in the case of C$ Loans. In no event shall there be more than (a) 20 Tranches
outstanding at any time or (b) 10 Tranches in respect of US Revolving Credit
Loans, 10 Tranches in respect of Canadian Revolving Credit Loans, 7 Tranches in
respect of US Tranche A Term Loans, 10 Tranches in respect of Canadian Tranche A
Term Loans, 10 Tranches in respect of US Tranche B Term Loans or 10 Tranches in
respect of Canadian Tranche B Term Loans outstanding at any time.
Notwithstanding the foregoing and regardless of the number of Tranches
outstanding, all Term Loans shall be advanced only once, and all amounts repaid
thereunder may not be reborrowed.
4.6 Computation of Interest and Fees. (a) Interest (except as
provided in the following two sentences) and commitment and letter of credit
fees and commissions shall be calculated on the basis of a 360-day year for the
actual days elapsed. Interest on ABR Loans (when it is based upon the CIBC Base
Rate) shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. Acceptance fees and commitment fees and
interest calculated on the basis of the CDOR Rate shall be calculated on the
basis of a 365-day year for the actual days elapsed. The relevant Administrative
Agent shall as soon as practicable notify the relevant Borrower and the Lenders
of each determination of a Eurodollar Rate or the Applicable BA Discount Rate.
Any change in the interest rate on a Loan resulting from a change in the ABR,
the C$ Prime Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The relevant Administrative Agent shall as soon as practicable notify
the relevant Borrower and the relevant Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by an
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the relevant Borrower and the Lenders in the absence
of manifest error. The relevant Administrative Agent shall, at the request of
the relevant Borrower, deliver to such Borrower a statement showing the
quotations used by the such Administrative Agent in determining any interest
rate pursuant to subsection 4.1.
(c) For the purposes of the Interest Act (Canada), in any case
in which an interest rate is stated in this Agreement to be calculated on the
basis of a year of 360 days or 365 days, as the case may be, the yearly rate of
interest to which such interest rate is equivalent is equal to such interest
rate multiplied by the number of days in the year in which the relevant interest
payment accrues and divided by 360 or 365, respectively. In addition, the
principle of deemed reinvestment of interest does not apply to any interest
calculations under this Agreement and the rates of interest stipulated in this
Agreement are intended to be nominal rates and not effective rates or yields.
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4.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the US Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower in the
absence of manifest error) that, by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
(b) the US Administrative Agent shall have received notice
from the Majority Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such US$ Lenders (as conclusively certified by such
US$ Lenders) of making or maintaining their affected Loans during such
Interest Period,
the US Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrowers and the US$ Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as ABR Loans, (y) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be converted to or continued as ABR Loans and (z) any outstanding
Eurodollar Loans shall be converted, on the first day of such Interest Period,
to ABR Loans. Until such notice has been withdrawn by the US Administrative
Agent, no further Eurodollar Loans shall be made or continued as such, nor shall
either Borrower have the right to convert Loans to Eurodollar Loans.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of
Revolving Credit Loans by each Borrower hereunder shall be made, each payment by
each Borrower on account of any commitment fee or acceptance fee hereunder, and
any reduction of the Revolving Credit Commitments shall be allocated by the
relevant Administrative Agent, pro rata according to the US Revolving Credit
Commitment Percentages of the US Revolving Credit Lenders, in the case of US
Revolving Credit Commitments and US Revolving Credit Loans, and according to the
Canadian Revolving Credit Commitment Percentages of the Canadian Revolving
Credit Lenders, in the case of Canadian Revolving Credit Commitments and
Canadian Revolving Credit Loans. Each payment (including each prepayment
pursuant to subsection 4.3, but subject to the limitations set forth in
subsection 4.3(f)(iii) and subject to the provisions of subsection 4.3(f)(iv)
and (v)) by each Borrower on account of principal of and interest on any Class
of Loans shall be made pro rata according to the respective outstanding
principal amounts of such Class of Loans then held by the relevant Lenders.
Notwithstanding the foregoing provisions of this subsection, if at the time of
the making of any payment hereunder of interest, principal or fees such payment
shall be insufficient to pay in full all such amounts then due and unpaid
hereunder, such amount shall be applied first to pay all fees then due and
unpaid, second to pay all interest then due and unpaid and third to pay all
principal then due and unpaid in each case described above, ratably among the
Lenders in accordance with the respective amounts of each category of obligation
then due and unpaid to it, provided that, unless all the Loans
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shall have become due and payable (whether at the stated maturity thereof, by
acceleration or otherwise), in no event shall any amount paid by either Borrower
under or pursuant to this Agreement be applied to the obligations of any Class
of Loans in respect of which the obligor is the other Borrower. All payments
(including prepayments) to be made by the Borrowers hereunder and under any
Notes, whether on account of principal, interest, fees, L/C Obligations or
otherwise, shall be made without set-off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the relevant
Administrative Agent, for the account of the Lenders holding the relevant Loans
or the L/C Participants, as the case may be, at the Administrative Agent's
office specified in subsection 11.2, in US Dollars or C$, as the case may be,
and in immediately available funds. Payments received by the relevant
Administrative Agent after such time shall be deemed to have been received on
the next Business Day. If any payment hereunder (other than payments on
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
the maturity of such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity of such payment shall be extended to the next succeeding Business Day
(and, with respect to payments of principal, interest thereon shall be payable
at the then applicable rate during such extension) unless the result of such
extension would be to extend such payment into another calendar month, in which
event, subject to subsection 4.3(f)(iii), such payment shall be made on the
immediately preceding Business Day.
(b) Unless the relevant Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its Commitment Percentage of such
borrowing available to such Administrative Agent, such Administrative Agent may
assume that such Lender is making such amount available to such Administrative
Agent, and such Administrative Agent may, in reliance upon such assumption, make
available to the relevant Borrower a corresponding amount. If such amount is not
made available to such Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to such Administrative Agent, on
demand, such amount with interest thereon at a rate equal to the daily average
Federal Funds Rate (in the case of US$ Loans) or at the then effective CDOR Rate
(in the case of C$ Loans) for the period until such Lender makes such amount
immediately available to such Administrative Agent. A certificate of the
relevant Administrative Agent submitted to any Lender with respect to any
amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Lender's Commitment Percentage of such borrowing is not
made available to the relevant Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the relevant Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per
annum applicable to ABR Loans or C$ Prime Loans, as the case may be, hereunder,
on demand, from the relevant Borrower.
4.9 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or any change in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as
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contemplated by this Agreement, (a) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert ABR Loans
to Eurodollar Loans shall forthwith be cancelled and (b) such Lender's Loans
then outstanding as Eurodollar Loans, if any, shall be converted automatically
to ABR Loans on the respective last days of the then current Interest Periods
with respect to such Loans or within such earlier period as required by law. If
any such conversion of a Eurodollar Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the relevant
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 4.12.
4.10 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or any change in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of
Credit, any Application or any Eurodollar Loan made by it, or any
Bankers' Acceptance purchased or accepted by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 4.11 and changes in the rate
of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate or the
BA Discount Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, or issuing or participating in
Letters of Credit, or purchasing or accepting Bankers' Acceptances, or to reduce
any amount receivable hereunder in respect thereof then, in any such case, the
relevant Borrower shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender, on an after-tax basis,
for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or any change
in the interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's
<PAGE> 70
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capital as a consequence of its obligations hereunder or under any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the relevant Borrower (with a copy to the US
Administrative Agent) of a written request therefore, such Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender, on
an after-tax basis, for such reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the relevant
Borrower, through the relevant Administrative Agent, of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the
relevant Administrative Agent, to the relevant Borrower shall be conclusive in
the absence of manifest error. This covenant shall survive the termination of
this Agreement and the payment of the Notes and all other amounts payable
hereunder.
4.11 Taxes. (a) All payments made by either Borrower under
this Agreement, any Note or any Application shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on either Administrative
Agent or any Lender as a result of a present or former connection between such
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
relevant Administrative Agent or such Lender having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement, any Notes or any Application). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
either Administrative Agent or any Lender hereunder or under any Note or any
Application, the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to such Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in this
Agreement, the Notes and the Applications, provided, however, that neither
Borrower shall be required to increase any such amounts payable to any Lender if
such increased amount arises as a result of (i) in the case of amounts payable
by the Company with respect to US$ Loans, such Lender's failure to comply with
any applicable requirements of subsection 4.11(b), including a material failure
of any statement or certification given pursuant to subsection 4.11(b) to be
true for any reason other than a change in United States federal income tax law
or an amendment, modification or revocation of an applicable double tax treaty
or (ii) in the case of amounts payable by the Canadian Borrower with respect to
C$ Loans, such Lender's status as a non-resident of Canada for the purposes of
the Income Tax Act (Canada). Each Borrower shall also indemnify each
Administrative Agent and each Lender on an after-tax basis for any
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additional taxes on net income which such Administrative Agent or such Lender,
as the case may be, may be obligated to pay as a result of the receipt of
additional amounts under this subsection 4.11(a). Whenever any Non-Excluded
Taxes are payable by either Borrower, as promptly as possible thereafter such
Borrower shall send to the relevant Administrative Agent for its own account or
for the account of such Lender, as the case may be, a certified copy of an
original official receipt received by such Borrower showing payment thereof. If
either Borrower fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the relevant Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify each Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by such Administrative Agent or
any Lender as a result of any such failure. The agreements in this subsection
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) in the case of a Lender or a Transferee
that is a "bank" under Section 881(c)(3)(A) of the Code;
(A) deliver to Company and the US Administrative Agent
(A) two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be,
and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
(B) deliver to the Company and the US Administrative
Agent two further copies of any such form or certification on or before
the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Company; and
(C) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested by
the Company or the US Administrative Agent;
(ii) in the case of a Lender or a Transferee
that is not a "bank" under Section 881(c)(3)(A) of the Code:
(A) on or before the date it becomes a party to this
Agreement (or, in the case of a Loan Participant, on or the date such
Loan Participant becomes a Loan Participant hereunder) deliver to the
Company and the US Administrative Agent (I) a statement under penalties
of perjury that such Lender (x) is not a "bank" under Section
881(c)(3)(A) of the Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated as
a bank for purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any application made to
a rating agency or qualification for
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any exemption from tax, securities law or other legal requirements, (y)
is not a 10-percent shareholder within the meaning of Section
881(c)(3)(B) of the Code and (z) is not a controlled foreign
corporation receiving interest from a related person within the meaning
of Section 881(c)(3)(C) of the Code and (II) a properly completed and
duly executed Internal Revenue Service Form W-8 or applicable successor
form;
(B) deliver to the Company and the US Administrative
Agent two further properly completed and duly executed copies of said
Form W-8, or any successor applicable form on or before the date that
any such Form W-8 expires or becomes obsolete or after the occurrence
of any event requiring a change in the most recent form previously
delivered by it to the Company or upon the request of the Company; and
(C) obtain such extensions of time for filing and
completing such forms or certifications as may be reasonably requested
by the Company or the US Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Company and the US
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
4.12 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after such
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by such Borrower in making any
prepayment after such Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included
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therein, if any) over (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, the Company hereby
represents and warrants to each Administrative Agent and each Lender that:
5.1 Financial Condition. (a) The consolidated balance sheet of
the Company and its consolidated Subsidiaries as at December 31, 1995 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Deloitte & Touche, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheet of the Company and its consolidated Subsidiaries as
at March 31, 1996 and the related unaudited consolidated statements of income
and of cash flows for the three-month period ended on such date, certified by a
Responsible Officer, copies of which have heretofore been furnished to each
Lender, are complete and correct and present fairly the consolidated financial
condition of the Company and its consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
for the three-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein). Neither the
Company nor any of its consolidated Subsidiaries had, at the date of the most
recent balance sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without limitation, any interest
rate or foreign currency swap or exchange transaction, which is not reflected in
the foregoing statements or in the notes thereto. During the period from
December 31, 1995 to and including the Closing Date there has been no sale,
transfer or other disposition by the Company or any of its consolidated
Subsidiaries of any material part of its business or property and, except for
the Acquisition, no purchase or other acquisition of any business or property
(including any capital stock of any other Person) material in relation to the
consolidated financial condition of the Company and its consolidated
Subsidiaries at December 31, 1995.
(b) The Division financial statements referred to in Section
3.3 of the Purchase Agreement, copies of which have heretofore been furnished to
each Lender, present fairly the consolidated financial condition of the
business, operations and assets of
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the Division as at the respective dates thereof, and the consolidated results of
operations and consolidated cash flows thereof for the fiscal periods then
ended.
(c) The pro forma balance sheet of the Company and its
consolidated Subsidiaries (the "Pro Forma Balance Sheet"), copies of which have
heretofore been furnished to each Lender, is the balance sheet of the Company
and its consolidated Subsidiaries as of June 30, 1996 (the "Pro Forma Date"),
adjusted to give effect (as if such events had occurred on such date) to (i) the
consummation of the Acquisition, (ii) the repayment in full of all loans under,
and all other amounts due in respect of, the Second Amended and Restated Credit
Agreement of the Company repaid on the Original Closing Date, (iii) the making
of the loans and other extensions of credit under the Existing Credit Agreement
made on the Original Closing Date and the application of the proceeds thereof as
contemplated hereby, (iv) the incurrence of the bridge indebtedness under the
Subordinated Bridge Agreement contemplated by subsection 6.1(j)(i) of the
Existing Credit Agreement, (v) the repayment of the Senior Notes and any other
Indebtedness required to be repaid on the Original Closing Date and (vi) the
payment of the fees and expenses payable in connection with the consummation of
the Acquisition and the financing thereof.
5.2 No Change. Since May 31, 1996 (in the case of the
Division) or March 31, 1996 (in the case of the Company and its Subsidiaries)
(a) there has been no development or event which has had or could reasonably be
expected to have a Material Adverse Effect and (b) other than as disclosed on
Schedule 5.2, no dividends or other distributions have been declared, paid or
made upon the Capital Stock of the Company nor has any of the Capital Stock of
the Company been redeemed, retired, purchased or otherwise acquired for value by
the Company or any of its Subsidiaries.
5.3 Corporate Existence; Compliance with Law. Each of the
Company and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction set forth
on Schedule 5.3 on the date hereof, which includes each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except to the extent that the failure to be so
qualified or in good standing could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations.
(a) Each of the Company and the other Loan Parties has the corporate power and
authority, and the legal right, to make, deliver and perform those Loan
Documents to which it is a party and, in the case of each Borrower, to borrow
hereunder, and each of the Borrowers and the other Loan Parties has taken all
necessary corporate action to authorize (in the case of each Borrower) the
borrowings on the terms and conditions of this Agreement and to authorize the
execution, delivery and performance of each Loan Document to which it is a
party.
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(b) No consent or authorization of, approval by, notice to,
filing with or other act by or in respect of, any Governmental Authority or any
other Person is required to be obtained or made by either Borrower or any other
Loan Party in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or any other
Loan Document to which it is a party.
(c) This Agreement has been, and other Loan Document to which
it is a party will be, duly executed and delivered on behalf of each Borrower
and each other Loan Party which is a party thereto.
(d) This Agreement constitutes, and each other Loan Document
to which it is a party when executed and delivered will constitute, a legal,
valid and binding obligation of each Borrower or each Loan Party, as the case
may be, enforceable against each Borrower or such Loan Party in accordance with
its terms, except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to the enforcement of
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
5.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the borrowings hereunder and the
use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of either Borrower or of any of their respective
Subsidiaries and will not result in, or require, the creation or imposition of
any Lien on any of its or their respective properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation.
5.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or any of
its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
5.7 No Default. Neither the Company nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of the Company and its
Subsidiaries has good record and valid title in fee simple to, or a leasehold
interest enforceable in accordance with outdoor advertising industry standards
in, all its real property, and good title to, or a leasehold interest
enforceable in accordance with outdoor advertising industry standards in, all
its other property, and none of such property is subject to any Lien except as
permitted by subsection 8.3, and except to the extent, in the case of such real
property other than that required to be subject to a Mortgage hereunder, that
the
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failure to have such good title or leasehold interest, as the case may be, could
not reasonably be expected to have a Material Adverse Effect.
5.9 Advertising Displays. Schedule 5.9 sets forth, under the
heading "Locations and Leases", on the date hereof, (i) the location by street
of each Advertising Display of the Company or any of its Subsidiaries, (ii) the
location and legal description of all real property owned by the Company or any
of its Subsidiaries and (iii) each lease to which the Company or any of its
Subsidiaries is a party as lessee. Schedule 5.9 sets forth under the heading
"Jurisdictions", on the date hereof, the county and state where each Advertising
Display of the Company and its Subsidiaries is located.
5.10 No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Company or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
5.11 Taxes. Each of the Company and its Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the Company,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Company or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Company, no claim is being asserted,
with respect to any such tax, fee or other charge.
5.12 Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of such Board of Governors. If requested by any Lender or the
Administrative Agent, the Company will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
5.13 ERISA. (a) Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code where failure to comply could
reasonably be expected to result in a liability to the Company or any Commonly
Controlled Entity. No termination of a Single Employer Plan has occurred, and no
Lien on the property, assets or revenues of the Company or any Commonly
Controlled Entity in favor of the PBGC or a Plan has arisen, during such
five-year period. The present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Plans) did not, as
of the last annual valuation date prior to the date on
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which this representation is made or deemed made, exceed the value of the assets
of such Plan allocable to such accrued benefits. Neither the Company nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Company nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization, Insolvent or terminating where any liability could result from
any such event. Notwithstanding the foregoing, there shall be no breach of the
representations set forth in this subsection hereof unless the amount of any
liability of the Company or any Commonly Controlled Entity which arises or which
could be reasonably expected to arise in connection with such representation,
individually or in the aggregate, exceeds $500,000.
(b) Each Canadian Pension Plan is in compliance with all
applicable pension benefits and tax laws except to the extent that
non-compliance could not reasonably be expected to have a Material Adverse
Effect; no Canadian Pension Plan has any unfunded liabilities (either on a
"going concern" or on a "winding up" basis and determined in accordance with all
applicable laws and using assumptions and methods that are appropriate in the
circumstances and in accordance with generally accepted actuarial principles and
practices in Canada), all contributions (including any special payments to
amortize any unfunded liabilities) required to be made in accordance with all
applicable laws and the terms of each Canadian Pension Plan have been made; no
event has occurred and no condition exists with respect to any Canadian Pension
Plan that has resulted or could reasonably be expected to result in any Canadian
Pension Plan being ordered or required to be wound up in whole or in part
pursuant to any applicable pension benefits laws or having its registration
revoked or refused for the purposes of any applicable pension benefits or tax
laws or being placed under the administration of any relevant pension benefits
regulatory authority or being required to pay any taxes or penalties under any
applicable pension benefits or tax laws, other than events or conditions that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; no order has been made and no notice has been given
pursuant to any applicable pension benefits or tax laws in respect of any
Canadian Pension Plan requiring (or proposing to require) any Person to take or
to refrain from taking any action in respect thereof or that there has (or there
are circumstances that indicate that there has) been a contravention of any such
applicable laws, other than in respect of matters that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;
no event has occurred and no condition exists which has resulted or could
reasonably be expected to result in the Company or any Subsidiary of the Company
being required to pay, repay or refund any material amount (other than
contributions required to be made or expenses required to be paid in the
ordinary course) to or on account of any Canadian Pension Plan or a current or
former member thereof, other than events or conditions that, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect; and no event has occurred and no condition exists that has resulted or
could result in a material payment being made out of a guarantee fund
established under any applicable pension benefits laws in respect of a Canadian
Pension Plan.
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(c) With respect to any pension, retirement or other deferred
compensation plan maintained by the Canadian Borrower or any of its Subsidiaries
which is not a Canadian Pension Plan, all required contributions have been made,
and there are no unfunded liabilities in respect of such plans (either on a
"going concern" or on a "winding up'" basis and determined in accordance with
all applicable laws and using assumptions and methods that are appropriate in
the circumstances and in accordance with generally accepted actuarial principles
and practices in Canada).
5.14 Investment Company Act; Other Regulations. Neither
Borrower is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
Neither Borrower is subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
5.15 Subsidiaries. Schedule 5.15 sets forth each of the
Subsidiaries of the Company on the Closing Date. Each Subsidiary of the Canadian
Borrower is inactive, and conducts no business or operations, and no such
Subsidiary owns any assets or has or is subject to any liabilities or
Contractual Obligations, except for any of the foregoing that are immaterial and
of negligible significance to the assets, business, operations, liabilities or
interests of Company or any of its Subsidiaries.
5.16 Purpose of Loans. The proceeds of the Loans shall be used
by the Borrowers for:
(a) working capital purposes in the ordinary course of
business;
(b) repayments made on the Original Closing Date and the
refunding and/or continuation of the Loans made in respect thereof; and
(c) Permitted Acquisitions.
5.17 Environmental Matters. (a) The facilities and properties
owned, leased or operated by the Company or any of its Subsidiaries (the
"Properties") do not contain, and have not previously contained, any Materials
of Environmental Concern in amounts or concentrations which (i) constitute or
constituted a violation of, or (ii) could reasonably be expected to give rise to
liability under, any Environmental Law except in either case insofar as such
violation or liability, or any aggregation thereof, could not reasonably be
expected to have a Material Adverse Effect.
(b) The Properties and all operations at the Properties are in
compliance, and have been in compliance, in all material respects with all
applicable Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Company or any of its Subsidiaries
(the "Business") which could materially interfere with the continued operation
of the Properties or materially impair the fair saleable value thereof.
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(c) Neither the Company nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Company have knowledge or reason to believe that any such notice will
be received or is being threatened except insofar as such notice or threatened
notice, or any aggregation thereof, does not involve a matter or matters that is
or could reasonably be expected to have a Material Adverse Effect.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location which could reasonably be expected to give rise to liability
under, any Environmental Law, nor have any Materials of Environmental Concern
been generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be expected to
give rise to liability under, any applicable Environmental Law except insofar as
any such violation or liability referred to in this paragraph, or any
aggregation thereof, could not reasonably be expected to have Material Adverse
Effect.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Company, threatened, under any
Environmental Law to which the Company or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business except insofar
as such proceeding, action, decree, order or other requirement, or any
aggregation thereof, could not reasonably be expected to have a Material Adverse
Effect.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or arising from or
related to the operations of the Company or any Subsidiary in connection with
the Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably give rise to liability under
Environmental Laws except insofar as any such violation or liability referred to
in this paragraph, or any aggregation thereof, could not reasonably be expected
to have Material Adverse Effect.
5.18 Regulation H. No Mortgage encumbers improved real
property which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968.
5.19 Solvency. On and as of the Closing Date, before and after
giving effect to the Acquisition and the other transactions contemplated hereby
and thereby, each of the Borrowers will be Solvent.
5.20 Material Agreements. Set forth on Schedule 5.20 are all
the indentures, loan or credit agreements, leases, guarantees, mortgages,
security agreements, bonds, notes and other agreements or instruments, and
orders, writs, judgments, awards, injunctions and
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decrees, which affect or purport to affect either Borrower's right to borrow
money or to undertake and perform such Borrower's obligations under the Loan
Documents.
5.21 Purchase Agreement. Each of the Lenders and the US
Administrative Agent has received a complete copy of the Purchase Agreement
(including, in the case of the US Administrative Agent, all exhibits, schedules
and disclosure letters referred to therein or delivered pursuant thereto, if
any) and all amendments thereto, waivers relating thereto and other side letters
or agreements affecting the terms thereof. Except for revised schedules and
other agreements supplementing the Purchase Agreement that are expressly
contemplated by the terms thereof, none of such documents and agreements has
been amended or supplemented, nor have any of the provisions thereof been
waived, in any case in any material respect. The Purchase Agreement has been
duly executed and delivered by the parties thereto and is in full force and
effect. The representations and warranties of the Company and the other parties
to the Purchase Agreement are true and correct in all material respects on the
Closing Date as if made on and as of such date (disregarding, for purposes of
this Agreement, any references in such representations to the phrases "to
Seller's knowledge" and "of which we are aware" (or words of similar purport)).
Such representations and warranties, together with the definitions of all
defined terms used therein, are by this reference deemed incorporated herein
mutatis mutandis, and each Lender is entitled to rely on the accuracy of such
representations and warranties.
5.22 Intellectual Property. The Company and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, except for such
claims which, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, nor does the Company know of any valid basis for any
such claim. The use of such Intellectual Property by the Company and its
Subsidiaries does not infringe on the rights of any Person, except for such
infringements that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.23 No Material Misstatements. The information, reports,
financial statements, exhibits and schedules furnished by or on behalf of the
Company and each other Loan Party to the Administrative Agent and the Lenders in
connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto do not contain, and will not contain as of the
Closing Date, any material misstatement of fact and do not, taken as a whole,
omit, and will not, taken as a whole, omit as of the Closing Date, to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not materially misleading. It is
understood that no representation or warranty is made concerning the forecasts,
estimates, pro forma information, projections and statements as to anticipated
future performance or conditions, and the assumptions on which they were based,
contained in any such information, reports, financial statements, exhibits or
schedules, except that as of the date such forecasts,
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estimates, pro forma information, projections and statements were generated,
(a) such forecasts, estimates, pro forma information, projections and
statements were based on the good faith assumptions of the management of the
Company, as the case may be, and (b) such assumptions were believed by such
management to be reasonable.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness. The effectiveness of this
Agreement, and the agreement of each Lender to make any extension of credit
hereunder (if any) on the Closing Date, shall be subject to the satisfaction of
the following conditions precedent:
(a) Documentation. The US Administrative Agent shall have
received (i) this Agreement, executed and delivered by each of the
Borrowers, the Administrative Agents and the Lenders and (ii) for the
account of each Lender, which has requested a Note pursuant to any of
subsections 2.3, 2.10, 2.11 and 2.13, such Note, each conforming to the
requirements hereof and executed and delivered by a duly authorized
officer of the relevant Borrower, and (iii) the Global Affirmation and
Restatement, executed and delivered by a duly authorized officer of
each Loan Party, with a counterpart or a conformed copy for each
Lender.
(b) Liens. The US Administrative Agent shall have received
evidence satisfactory to it that all filings, amendments and other
actions with respect to the Liens under the Security Documents
requested by it in connection with this Agreement shall have been made,
filed or taken, as the case may be.
(c) Opinions. The US Administrative Agent shall have received,
with a copy for each Lender, the following executed legal opinions
dated the Closing Date:
(i) the executed legal opinion of Powell,
Goldstein, Frazer & Murphy, counsel to the Company and the
other Loan Parties, in form and substance satisfactory to the
US Administrative Agent; and
(ii) the executed legal opinion of Blake,
Cassels & Graydon, counsel to the Canadian Borrower and the
other Loan Parties, in form and substance satisfactory to the
US Administrative Agent.
(d) Authorizing Actions. The US Administrative Agent shall
have received, with a copy for each Lender, a copy of the resolutions,
in form and substance reasonably satisfactory to the US Administrative
Agent, of the Boards of Directors or shareholders (as applicable) of
each Borrower and each other Loan Party authorizing the (i) execution,
delivery and performance of the Loan Documents to which it is a party
and the creation and perfection of any Liens contemplated thereby and
(ii) in the case of the Company, the execution, delivery and
performance of the Purchase Agreement and all closing documents
delivered in connection therewith, certified by the Secretary or an
Assistant Secretary of the Borrower or such Loan
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Party, as the case may be, as of the Closing Date, which certificate
shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded as of the date of such
certificate.
(e) Incumbency Certificates. The US Administrative Agent shall
have received, with a copy for each Lender, a certificate of the
Secretary or Assistant Secretary of each of the Company and each other
Loan Party dated the Closing Date, as to the incumbency and signature
of each of the officers signing the Loan Documents to which it is a
party and any other instrument or document to which it is a party,
together with evidence of the incumbency of such Secretary or Assistant
Secretary.
(f) Closing Certificates. The US Administrative Agent shall
have received, with a copy for each Lender, a closing certificate of
the Company and each other Loan Party, in form and substance reasonably
satisfactory to the US Administrative Agent and dated the Closing Date,
to which shall be attached, among other things, true and complete
copies of the certificate of incorporation and by-laws of the Company
and each other Loan Party.
(g) Proceeds of Senior Subordinated Notes. The Company shall
have received not less than $150,000,000 in gross cash proceeds of the
issuance of the Senior Subordinated Notes.
(h) Subordinated Bridge Agreement. The US Administrative Agent
shall have received evidence satisfactory to it that all amounts owing
or payable under the Subordinated Bridge Agreement shall have been paid
in full and terminated.
(i) Fees. The US Administrative Agent shall have received the
fees to be received on the Closing Date referred to in subsection
2.6(c).
(j) Existing Credit Agreement. All loans outstanding under the
Existing Credit Agreement on the Closing Date shall have been refunded
and/or continued concurrently with the making of the initial Loans
hereunder and all Commitments under the Existing Credit Agreement shall
have been terminated, assigned or continued, as the case may be, all in
accordance with subsection 2.14.
6.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including, without limitation, its initial extension of credit) is subject
to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Company and each other Loan
Party in or pursuant to the Loan Documents shall be true and correct in
all material respects on and as of such date as if made on and as of
such date except to the extent such representations and warranties
relate solely to an earlier date.
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(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
Each borrowing by and Letter of Credit issued on behalf of either Borrower
hereunder shall constitute a representation and warranty by the Company as of
the date of such borrowing or issuance that the conditions contained in this
subsection have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Company hereby agrees that, on and after the Closing Date
and so long thereafter as the Commitments remain in effect, any Loan or any
Letter of Credit remains outstanding and unpaid or any other amount is owing to
any Lender or either Administrative Agent hereunder, the Company shall and
(except in the case of delivery of financial information, reports and notices)
shall cause each of its Subsidiaries to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by Deloitte & Touche or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of the Company, the unaudited consolidated balance sheet of
the Company and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and
retained earnings and of cash flows of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
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7.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a certificate of a
Responsible Officer (a "Compliance Certificate") (i) stating that, to
the best of such Officer's knowledge, the Company during such period
has observed or performed all of its covenants and other agreements,
and satisfied every condition, contained in this Agreement and in other
Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate,
(ii) setting forth in reasonable detail calculations required to
determine compliance with the covenants set forth in subsections 8.1,
8.5(c), 8.6(b), 8.6(d), 8.7, 8.9, 8.10(c) and 8.10(d) (x) for the most
recently completed fiscal quarter, (y) for the corresponding fiscal
quarter during the preceding fiscal year and (z) as budgeted pursuant
to subsection 7.2(c)(i) for the most recently completed fiscal quarter
and (iii) setting forth in reasonable detail the Company's consolidated
gross revenues, net revenues and cash flow (x) for the most recently
completed fiscal quarter, (y) for the corresponding fiscal quarter
during the preceding fiscal year and (z) as budgeted pursuant to
subsection 7.2(c)(i) for the most recently completed fiscal quarter;
(c) not later than thirty days prior to the end of each fiscal
year of the Company, a copy of the projections by the Company setting
forth in reasonable detail the (i) quarterly and annual operating
budget and cash flow budget of the Company and its Subsidiaries for the
succeeding fiscal year, including, without limitation, the Company's
projected consolidated gross revenues, net revenues and cash flow for
the succeeding fiscal year and (ii) quarterly and annual calculations
required to determine compliance by the Company and its Subsidiaries,
based on the projections provided pursuant to subsection 7.2(c)(i),
with the covenants set forth in subsections 8.1, 8.5(c), 8.6(b),
8.6(d), 8.7, 8.9, 8.10(c) and 8.10(d), such projections and
calculations to be accompanied by a certificate of a Responsible
Officer to the effect that such projections and calculations have been
prepared on the basis of sound financial planning practice and that
such Officer believes, in good faith, that such projections and
calculations are based on reasonable assumptions;
(c) within five days after the same are sent, copies of all
financial statements and reports which the Company sends to its
stockholders, and within five days after the same are filed, copies of
all financial statements and reports which the Company may make to, or
file with, the SEC or any successor or analogous Governmental
Authority; and
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(d) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Company or its Subsidiaries and except to the extent that the
failure to so pay such obligations could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, as the case may be; provided,
however, that any failure to comply with the provisions of this subsection with
respect to Indebtedness or Guarantee Obligations shall not constitute a Default
under Section 9(d) unless and until such failure to comply herewith with respect
to Indebtedness or Guarantee Obligations would constitute a Default under
Section 9(e).
7.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except as otherwise
permitted pursuant to subsection 8.5; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, be reasonably expected to have a Material Adverse
Effect.
7.5 Maintenance of Property; Insurance. Maintain the condition
of all property useful and necessary in its business in accordance with
standards existing in the outdoor advertising business; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the same or a
similar business; and furnish to each Lender, upon written request, full
information as to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Company and its
Subsidiaries with officers and employees of the Company and its Subsidiaries and
with its independent certified public accountants.
7.7 Notices. Promptly give notice to the US Administrative
Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
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(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Company or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any
of its Subsidiaries in which the amount involved is $500,000 or more
and not covered by insurance or in which injunctive or similar relief
is sought against the Company or any of its Subsidiaries;
(d) the following events, as soon as possible and in any event
within 30 days after the Company knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Single Employer Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC
or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the
Company or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the terminating, Reorganization
or Insolvency of, any Plan, provided, however, that no such notice
shall be required if individually or in the aggregate the foregoing
events could not be reasonably expected to result in the imposition of
a Lien on the property, assets or revenues of the Company or any
Commonly Controlled Entity or liability to the Company or any Commonly
Controlled Entity in excess of $500,000; and
(e) the following, as soon as possible and, in any event,
within 10 days after the Company or any Subsidiary of the Company knows
of any of the following, along with delivery by the Company to the US
Administrative Agent of a certificate setting forth the details of any
such occurrence or condition and such action, if any, which is required
or proposed to be taken, together with any notices required or proposed
to be given to or filed with or by the Company or such Subsidiary, the
relevant pension or tax regulatory authority, a current or former
member of a Canadian Pension Plan, an administrator or member of an
advisory committee of a Canadian Pension Plan or a union representing
current or former members of a Canadian Pension Plan with respect
thereto: that a Canadian Pension Plan is not in substantial compliance
with any applicable pension benefits and tax laws; that a Canadian
Pension Plan has an unfunded liability (either on a "going concern" or
on a "winding up" basis and determined in accordance with all
applicable laws and using assumptions and methods that are appropriate
in the circumstances and in accordance with generally accepted
actuarial principles and practices in Canada); that any contribution
(including any special payment to amortize any unfunded liability)
required to be made in accordance with any applicable law or the terms
of a Canadian Pension Plan has not been made; that an event has
occurred or a condition exists with respect to a Canadian Pension Plan
that has resulted or could result in the
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Canadian Pension Plan being ordered or required to be wound up in whole
or in part pursuant to any applicable pension benefits laws or having
its registration revoked or refused for the purposes of any applicable
pension benefits and tax laws or being placed under the administration
of any relevant pension benefits regulatory authority or being required
to pay any taxes or penalties under any applicable pension benefits and
tax laws; that an order has been made or notice has been given pursuant
to any applicable pension benefits and tax laws in respect of any
Canadian Pension Plan requiring (or proposing to require) any person to
take or refrain from taking any action in respect thereof or that there
has (or there are circumstances that indicate that there has) been a
contravention of any such applicable laws; or that an event has
occurred or a condition exists that has resulted or could result in the
Company or any Subsidiary of the Company being required to pay, repay
or refund any material amount (other than contributions required to be
made or expenses required to be paid in the ordinary course) to or on
account of any Canadian Pension Plan or a current or former member
thereof; or that an event has occurred or a condition exists that has
resulted or could result in a material payment being made out of a
guarantee fund established under the applicable pension benefits laws
in respect of a Canadian Pension Plan; and
(e) any development or event which could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company proposes to take with respect thereto.
7.8 Environmental Laws. (a) Comply in all material respects
with, and require compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply in all material respects with and maintain, and require that all tenants
and subtenants obtain and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except to the extent that failure to do so could
not be reasonably expected to have a Material Adverse Effect.
(b) Promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect.
7.9 Lease Renewals. Use its best efforts upon expiry of all
existing leases that do not automatically renew and consistent with industry
practice to become, as soon as practicable following the Closing Date, the
tenant under all leases that are part of the assets acquired pursuant to the
Acquisition with respect to which the Company or any Subsidiary shall not have
become the tenant on the Closing Date.
<PAGE> 88
83
7.10 Additional Collateral. (a) With respect to (i) the real
property owned by the Company and located at 1016 North Mission Road, Los
Angeles, California, and (ii) any assets (or any interest therein) acquired
after the Closing Date by the Company or any of its Subsidiaries that are of the
type and, in the case of real property or leasehold interests, of substantially
similar value to any of the properties or interests covered by any Security
Documents, prior to December 31, 1996, in the case of clause (i) above (unless
such property has been sold prior to such date), and promptly (and in any event
within 30 days after the acquisition thereof), in the case of clause (ii) above:
(A) execute and deliver to the applicable Administrative Agent such amendments
to the relevant Security Documents or such other documents as such
Administrative Agent shall deem necessary or advisable to grant to such
Administrative Agent, for the benefit of the Lenders, if the assets are located
in a jurisdiction other than Canada, or the C$ Lenders, if the assets are
located in Canada, a Lien on such assets (or such interest therein), (B) take
all actions necessary or advisable to cause such Lien to be duly perfected in
accordance with all applicable Requirements of Law, including, without
limitation, the filing of financing statements and the recording of Mortgages in
such jurisdictions as may be requested by such Administrative Agent, (C) if
requested by such Administrative Agent, deliver to such Administrative Agent
legal opinions relating to the matters described in clauses (B) and (C)
immediately preceding, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to such Administrative Agent, and (D) if
requested by such Administrative Agent, deliver to such Administrative Agent
such surveys, title insurance and flood insurance as such Administrative Agent
shall reasonably request. In addition, in the event that any assignment to an
Assignee by any C$ Lender or any Canadian Tranche B Term Lender is effected
pursuant to subsection 11.6(b), the Canadian Borrower shall promptly cause to be
executed and delivered such amendments to any Security Documents relating to
Liens evidenced by filings or registrations in the Province of Quebec as such
Transferee shall request to comply with any requirement of Quebec law that the
names of all secured parties be listed on security documents covering property
in Quebec.
(b) With respect to (i) New York Subways Advertising Co.,
Inc., upon the acquisition of ownership of the capital stock thereof by the
Company or any of its Subsidiaries, whether on the Closing Date or subsequent
thereto, and (ii) any other Person that, subsequent to the Closing Date, becomes
a Subsidiary, promptly upon the request of the applicable Administrative Agent:
(i) execute and deliver to such Administrative Agent, for the benefit of the
Lenders, if such Person is organized under the laws of a jurisdiction other than
Canada, or the C$ Lenders, if such Person is organized under the laws of Canada,
such amendments to the applicable Security Documents as such Administrative
Agent shall deem necessary or advisable to grant to such Administrative Agent,
for the benefit of the Lenders or the C$ Lenders, as the case may be, a Lien on
the all of the Capital Stock, in the case of a domestic Subsidiary, or 66% of
the Capital Stock, in the case of a foreign Subsidiary, of such Subsidiary which
is owned by the Company or any of its Subsidiaries, (ii) deliver to such
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers executed and delivered in blank by a duly authorized
officer of the Company or such Subsidiary, as the case may be, (iii) in the case
of any such domestic Subsidiary, cause such new Subsidiary (A) to become a party
to the US
<PAGE> 89
84
Guarantee and Collateral Agreement, in each case pursuant to an annex to the US
Guarantee and Collateral Agreement or otherwise pursuant to documentation which
is in form and substance satisfactory to such Administrative Agent, and (B) to
take all actions necessary or advisable to cause the Lien created by the US
Guarantee and Collateral Agreement or such other documentation to be duly
perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of financing statements in such jurisdictions as
may be requested by such Administrative Agent and (iv) if requested by such
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i), (ii) and (iii) immediately
preceding, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to such Administrative Agent.
7.11 Key Man Life Insurance. Maintain in full force and effect
a "key man" life insurance policy covering Arthur R. Moreno in an amount not
less than $5,000,000, the proceeds of which are assigned to US Administrative
Agent, for the benefit of the Lenders, on terms satisfactory to US
Administrative Agent.
7.12 Interest Rate Protection. No later than 90 days following
the Closing Date, enter into Hedging Agreements that shall provide interest rate
protection at all times (i) in respect of an amount of Indebtedness of the
Borrowers which, when added to the aggregate principal amount of the
Subordinated Indebtedness outstanding at the time of any calculation for the
purposes hereof, is equal at at such time to at least 50% of the total
Indebtedness of the Borrowers at such time, (ii) has an original term of at
least two years and (iii) that is otherwise in form and substance reasonably
satisfactory to the US Administrative Agent, provided that for the purposes of
calculating such total Indebtedness at any time under this subsection 7.12, an
amount equal to the sum of the aggregate Available US Revolving Credit
Commitments at such time and the aggregate Available Canadian Revolving Credit
Commitments at such time shall be included in the calculation of such total
Indebtedness at such time.
7.13 Canadian Pension Plans. The Company will, and will cause
each of its Subsidiaries, to make all contributions (including any special
payments to amortize any unfunded liabilities) required to be made in accordance
with all applicable laws and the terms of each Canadian Pension Plan in a timely
manner.
SECTION 8. NEGATIVE COVENANTS
The Company hereby agrees that, on and after the Closing Date
and so long thereafter as the Commitments remain in effect, any Loan or any
Letter of Credit remains outstanding and unpaid or any other amount is owing to
any Lender or either Administrative Agent hereunder, the Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly:
<PAGE> 90
85
8.1 Financial Condition Covenants.
(a) Maintenance of Total Leverage Ratio. Permit the Total
Leverage Ratio as at the last day of any fiscal quarter ending during
any period set forth below to be more than the ratio set forth opposite
such period below:
<TABLE>
<CAPTION>
Period Total Leverage Ratio
------ --------------------
<S> <C>
Closing Date - 6/29/97 6.50 to 1.0
6/30/97 - 12/30/97 6.00 to 1.0
12/31/97 - 6/29/98 5.75 to 1.0
6/30/98 - 12/30/98 5.25 to 1.0
12/31/98 - 6/29/99 4.75 to 1.0
6/30/99 - 12/30/99 4.25 to 1.0
12/31/99 - 6/29/00 4.00 to 1.0
6/30/00 and thereafter 3.50 to 1.0
</TABLE>
(b) Maintenance of Senior Leverage Ratio. Permit the Senior
Leverage Ratio as at the last day of any fiscal quarter ending during
any period set forth below to be more than the ratio set forth opposite
such period below:
<TABLE>
<CAPTION>
Period Senior Leverage Ratio
------ ---------------------
<S> <C>
Closing Date - 6/29/97 4.50 to 1.0
6/30/97 - 12/30/97 4.25 to 1.0
12/31/97 - 6/29/98 4.00 to 1.0
6/30/98 - 12/30/98 3.75 to 1.0
12/31/98 - 6/29/99 3.50 to 1.0
6/30/99 - 12/30/99 3.25 to 1.0
12/31/99 and thereafter 3.00 to 1.0
</TABLE>
(c) Interest Coverage. Permit, as at the last day of (i) the
first quarter ending after the Closing Date, (ii) the first two
consecutive quarters ending after the Closing Date, (iii) the first
three consecutive quarters ending after the Closing Date and (iv) any
period of four consecutive fiscal quarters ending thereafter, the ratio
of (x) Consolidated Operating Cash Flow for such period to (y)
Consolidated Interest Expense for such period to be less than the ratio
set forth below opposite the period which includes the last day of such
period:
<TABLE>
<CAPTION>
Period Interest Coverage Ratio
------ -----------------------
<S> <C>
Closing Date - 12/30/98 2.00 to 1.0
12/31/98 - 12/30/99 2.25 to 1.0
12/31/99 and thereafter 2.50 to 1.0
</TABLE>
<PAGE> 91
86
(d) Fixed Charge Coverage. Permit, as at the last day of (i)
the first two consecutive quarters ending after the Closing Date, (iii)
the first three consecutive quarters ending after the Closing Date and
(iv) any period of four consecutive fiscal quarters ending thereafter,
the ratio of (x) Consolidated Operating Cash Flow for such period to
(y) Consolidated Fixed Charges for such period to be less than
1.05:1.0.
(e) Tobacco Revenues Ratio. Permit for any twelve-month period
ending on the Closing Date or on the last day of any fiscal quarter of
the Company ending thereafter (on a pro forma basis assuming the
Acquisition had occurred on the first day of such period in the case of
any such period including periods prior to the Closing Date), the
percentage represented by (i) the Tobacco Advertising Revenues of the
Company and its Subsidiaries for such fiscal year of (ii) the
consolidated gross revenues derived from all Advertising Displays by
the Borrower and its Subsidiaries for such fiscal year to exceed 15%.
8.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of each Borrower under this Agreement;
(b) Indebtedness of (i) either Borrower to any Subsidiary
Guarantor which is a Subsidiary of such Borrower, (ii) any Subsidiary
of either Borrower to such Borrower or to any Subsidiary Guarantor
which is a Subsidiary of such Borrower and (iii) Indebtedness of the
Company to the Canadian Borrower;
(c) Indebtedness of a corporation which becomes a Subsidiary
after the Closing Date, provided that (i) such Indebtedness existed at
the time such corporation became a Subsidiary and was not created in
anticipation thereof and (ii) immediately after giving effect to the
acquisition of such corporation no Default or Event of Default shall
have occurred and be continuing, and any refinancings, refundings,
renewals or extensions thereof;
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 8.2 and any refinancings, refundings, renewals or extensions
thereof, in aggregate principal amounts not to exceed the amounts set
forth thereon in respect thereof;
(e) Indebtedness under Hedging Agreements entered into (i) in
accordance with the requirements of subsection 7.12 or (ii) in the
ordinary course of business;
(f) the Subordinated Indebtedness, in an aggregate principal
amount not to exceed $250,000,000 at any time outstanding; and
(g) (i) Indebtedness of the Company and any of its
Subsidiaries incurred to finance the acquisition of fixed or capital
assets (whether pursuant to a loan, a Financing Lease or otherwise) and
(ii) additional Indebtedness of the Company and
<PAGE> 92
87
any of its Subsidiaries, in an aggregate principal amount for both
clauses (i) and (ii) not exceeding $6,000,000 at any time outstanding.
8.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes, assessments or other governmental charges
(i) not yet due or which are being contested in good faith by
appropriate proceedings, or (ii) which are assumed under the Purchase
Agreement, provided that adequate reserves with respect thereto are
maintained on the books of the Company or its Subsidiaries, as the case
may be, in conformity with GAAP and that, in the case of such Liens
described in clause (ii), such Liens are discharged within 90 days
after the Closing Date;
(b) landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than 60
days or which are being contested in good faith by appropriate
proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, servitudes, rights-of-way, zoning or
restrictions and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value
of the property subject thereto or materially interfere with the
ordinary conduct of the business of the Company or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
8.3, securing Indebtedness permitted by subsection 8.2(e), provided
that no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is not
increased;
(g) Liens on the property or assets of a corporation which
becomes a Subsidiary after the Closing Date securing Indebtedness
permitted by subsection 8.2(d), provided that (i) such Liens existed at
the time such corporation became a Subsidiary and were not created in
anticipation thereof, (ii) any such Lien is not spread to cover any
property or assets of such corporation after the time such corporation
becomes a Subsidiary, and (iii) the amount of Indebtedness secured
thereby is not increased;
<PAGE> 93
88
(h) Liens created pursuant to the Security Documents;
(i) Liens securing Indebtedness of the Company and its
Subsidiaries permitted by clause (i) of subsection 8.2(g) incurred to
finance the acquisition of fixed or capital assets, provided that (i)
such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at
any time encumber any property other than the property financed by such
Indebtedness, (iii) the amount of Indebtedness secured thereby is not
increased and (iv) the principal amount of Indebtedness secured by any
such Lien shall at no time exceed 100% of the original purchase price
of such property at the time it was acquired;
(j) Liens incurred or created in the ordinary course of
business of the Canadian Borrower or any Subsidiary thereof and in
accordance with sound industry practice and incidental to construction
or operations which have not at such time been filed pursuant to law or
which relate to obligations not due or delinquent;
(k) Liens given to a public utility or any Governmental
Authority or other authority when required by such public utility or
Governmental Authority in connection with the operations of the
Canadian Borrower or any Subsidiary thereof;
(l) undetermined or inchoate Liens incidental to operations in
the ordinary course of business of the Canadian Borrower or any
Subsidiary thereof which have not been filed pursuant to law against
title to such properties or assets and which relate to obligations not
due or delinquent;
(m) the reservations, limitations, provisos and conditions in
any original grants from the Crown of any land or interests therein
located in Canada and statutory exceptions, qualifications and
reservations in respect of title thereto; and
(n) the unexercised rights reserved or vested in any
municipality or Governmental Authority of Canada by the terms of any
title documents, or by any statutory provisions, to terminate any such
title documents, or other interests in land, or to require annual or
other periodic payments as a condition of the continuance thereof.
8.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation.
8.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
<PAGE> 94
89
(a) any Subsidiary of the Company may be merged or
consolidated with or into the Company (provided that the Company shall
be the continuing or surviving corporation) or with or into any one or
more Wholly Owned Subsidiaries of the Company (provided that the Wholly
Owned Subsidiary or Subsidiaries shall be the continuing or surviving
corporation);
(b) any Wholly Owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company or any other Wholly Owned
Subsidiary of the Company; and
(c) the Company or any of its Subsidiaries may enter into any
merger, consolidation or amalgamation necessary to effect or in
connection with a Permitted Acquisition (provided that the Company or
such Subsidiary, as the case may be, shall be the continuing or
surviving corporation).
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Company or any Wholly Owned Subsidiary, except:
(a) the sale or other disposition of property in the ordinary
course of business;
(b) the exchange, in the ordinary course of the outdoor
advertising business, of any interest of the Company or any of its
Subsidiaries in any Advertising Display or Displays for a similar
interest in an Advertising Display or Displays of a Person other than
the Company or such Subsidiary; provided that (i) the aggregate fair
market value (as determined in good faith by the Board of Directors of
the Company) of the Advertising Display or Displays being transferred
by the Company or such Subsidiary is not greater than the aggregate
fair market value (as determined in good faith by the Board of
Directors of the Company) of the Advertising Display or Displays
received by the Company or such Subsidiary in such exchange and (ii)
the aggregate fair market value (as determined in good faith by the
Board of Directors of the Company) of all Advertising Displays
transferred by the Company and its Subsidiaries in connection with
exchanges in any period of twelve consecutive months shall not exceed
$250,000;
(c) as permitted by subsection 8.5(b); and
(d) any other sale or other disposition of assets, provided
that (i) consideration in an amount not less than the fair market value
thereof shall be received in connection therewith, (ii) 100% of such
consideration shall consist of cash, (iii) the requirements of
subsection 4.3(c) (and, to the extent applicable, subsection
4.3(f)(iii)) shall be complied with in connection therewith and (iv)
the aggregate fair market value of the assets sold or otherwise
disposed of during any
<PAGE> 95
90
fiscal year of the Company shall not exceed 5% of the consolidated
total assets of the Company set forth on the audited balance sheet of
the Company then most recently delivered to the Lenders pursuant to
subsection 5.1(a) or 7.1(a) and (v) the portion of Consolidated
Operating Cash Flow attributable to the assets so sold or otherwise
disposed of during any fiscal year of the Company shall not exceed 10%
of Consolidated Operating Cash Flow of the Company for the then most
recently ended fiscal year of the Company for which audited financial
statements shall have been delivered to the Lenders pursuant to
subsection 5.1(a) or 7.1(a), provided that in the event that the
Houston Disposition is consummated prior to December 31, 1996, (i) up
to 60% of the consideration therefor may consist of consideration other
than cash if all of such non-cash consideration is pledged to the US
Administrative Agent, for the benefit of the Lenders, on terms
satisfactory to the US Administrative Agent, and (ii) the fair market
value thereof and the portion of Consolidated Operating Cash Flow
attributable thereto shall not be included in determining compliance
with the limits set forth in clauses (iv) and (v), respectively, of the
first proviso to this clause (d).
8.7 Limitation on Leases. Permit the aggregate Consolidated
Lease Expense of the Company to exceed $4,000,000 for any fiscal year.
8.8 Limitation on Dividends. Declare or pay any dividend
(other than dividends payable solely in common stock of the Company) on, or make
any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of (other than for payment solely in common stock of the Company), any shares of
any class of Capital Stock of the Company or any warrants or options to purchase
any such Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Company or any Subsidiary, provided that at
any time that (i) no Default or Event of Default has occurred and is continuing
or would result therefrom and (ii) the Total Leverage Ratio as at the end of the
then most recently ended two consecutive fiscal quarters of the Company for
which financial statements have been delivered pursuant to subsection 7.1 is
less than 5.00:1.00, the Company may repurchase common stock of the Company held
by shareholders other than that held by any employee, officer or director of the
Company or any Subsdiary so long as (A) the aggregate amount applied to such
repurchases does not exceed $25,000,000 in any calendar year, (B) the Total
Leverage Ratio immediately upon giving effect to any such repurchase is less
than 5.00:1.00 on a pro forma basis, using for the purposes of such
determination Consolidated Operating Cash Flow for the four-quarter period ended
on the last day of the second fiscal quarter referred to in clause (ii) above
and Indebtedness on the date of such determination after giving effect to such
repurchase and any borrowings made concurrently therewith, and (C) the Company
shall have provided to each Lender reasonably prior to the date of each such
repurchase pro forma projections showing compliance with this Agreement after
giving effect to such repurchase.
8.9 Limitation on Capital Expenditures. Make any expenditure
in respect of the purchase or other acquisition of, or improvement to, any
assets which are characterized
<PAGE> 96
91
as fixed or capital assets in accordance with GAAP (excluding any such asset
acquired in connection with normal replacement and maintenance programs properly
charged to current operations) except for expenditures in the ordinary course of
business not exceeding, in the aggregate for the Company and its Subsidiaries
during any of the fiscal years of the Company set forth below, the amount set
forth opposite such fiscal year below:
<TABLE>
<CAPTION>
Fiscal Year Amount
----------- ------
<S> <C>
1996 $14,000,000
1997 $20,000,000
1998 $21,000,000
Each year thereafter $22,000,000;
</TABLE>
provided that any portion of any amount of capital expenditures set forth above
for any fiscal year that are not made during such fiscal year may be carried
over and expended during the next succeeding fiscal year.
8.10 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Permitted Acquisitions;
(d) loans and advances to employees of the Company or any of
its Subsidiaries for travel and relocation expenses in the ordinary
course of business and consistent with past practice in an aggregate
amount for the Company and its Subsidiaries not to exceed $750,000 at
any one time outstanding;
(e) investments constituting the non-cash proceeds of the
Denver Disposition, in an aggregate amount not to exceed $7,000,000 in
principal amount thereof; and
(f) cash investments or loans by the Company in or to the
Canadian Borrower.
8.11 Limitation on Optional Payments and Modifications of Debt
Instruments. (a) Make any optional payment or prepayment on or redemption or
defeasance of any Indebtedness (other than the Loans), or (b) amend, modify or
change, or consent or agree to any amendment, modification or change to any of
the terms relating to the payment or prepayment or principal of or interest on,
any Indebtedness (other than any such amendment, modification or change which
would extend the maturity or reduce the
<PAGE> 97
92
amount of any payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon), or (c) designate or permit to
be designated any "Designated Senior Indebtedness" under and as defined in the
Senior Subordinated Indenture, other than the Indebtedness under this Agreement
provided that in the event that the Company issues any Capital Stock (i) at a
time when no Default or Event of Default has occurred and is continuing or would
result therefrom, (ii) at a time when the Total Leverage Ratio as at the end of
the then most recently ended two consecutive fiscal quarters of the Company for
which financial statements have been delivered pursuant to subsection 7.1 is
less than 5.00:1.00, and (iii) at a time when the Company has applied a portion
(the "Portion") of such Net Cash Proceeds thereof toward the prepayment of the
Loans and the permanent reduction of the Revolving Credit Commitments in
accordance with subsections 4.3(b) and 4.3(f), the Company may apply a portion
of the Net Cash Proceeds equal to such Portion thereof to repurchase
Subordinated Indebtedness permitted to be so repurchased under the Senior
Subordinated Indenture at a premium of not greater than 1%.
8.12 Limitation on Transactions with Affiliates. Except as set
forth on Schedule 8.12, enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of property or the rendering
of any service, with any Affiliate unless such transaction is (a) otherwise
permitted under this Agreement, (b) in the ordinary course of the Company's or
such Subsidiary's business and (c) upon fair and reasonable terms no less
favorable to the Company or such Subsidiary, as the case may be, than it would
obtain in a comparable arm's length transaction with a Person which is not an
Affiliate.
8.13 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Company or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Company or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Company or such
Subsidiary.
8.14 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Company to end on a day other than December 31.
8.15 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement, other than any industrial revenue bonds, purchase
money mortgages, liens or security interests or Financing Leases permitted by
this Agreement (in which cases, any prohibition or limitation shall only be
effective against the assets financed thereby), which prohibits or limits the
ability of the Company or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, to secure the Obligations.
8.16 Limitation on Lines of Business. Enter into any line of
business, either directly or through any Subsidiary, except for those lines of
businesses in which the Company and its Subsidiaries are engaged on the date of
this Agreement or which are directly related thereto.
<PAGE> 98
93
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Either Borrower shall fail to pay any principal of any
Loan, or L/C Reimbursement Obligations or any reimbursement obligation
in respect of Bankers' Acceptances when due in accordance with the
terms thereof or hereof; or either Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder, within
five days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Company or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any such other Loan Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed
made; or
(c) The Company or any other Loan Party shall default in the
observance or performance of any agreement contained in subsection 2.4
or Section 8 or in any negative covenant contained in any Security
Document; or
(d) The Company or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section ), and such default shall
continue unremedied for a period of 30 days; or
(e) The Company or any of its Subsidiaries shall (i) default
in any payment of principal of or interest of any Indebtedness (other
than the Loans) in the aggregate principal amount of $7,500,000 or more
or in the payment of any Guarantee Obligation in the aggregate
principal amount of $7,500,000 or more, beyond the period of grace (not
to exceed 30 days), if any, provided in the instrument or agreement
under which such Indebtedness or Guarantee Obligation was created; or
(ii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation 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 beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, all such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation to
become payable; or
(f) (i) The Company or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of
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debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or the Company or any of its
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Company or any
of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof;
or (iv) the Company or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) the Company or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Company or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Majority
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Company or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Majority
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $7,500,000 or
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
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(i) (i) Any of the Security Documents shall cease, for any
reason, to be in full force and effect, or the Company or any other
Loan Party which is a party to any of the Security Documents or any
Guarantee shall so assert or (ii) the Lien created by any of the
Security Documents shall cease to be enforceable and of the same effect
and priority purported to be created thereby; or
(j) (i) Except for the Designated Holders, any Person or
"group" (within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended) (A) shall have acquired beneficial
ownership of 20% or more of any outstanding class of Capital Stock
having ordinary voting power in the election of directors of the
Company or (B) shall obtain the power (whether or not exercised) to
elect a majority of the Company's directors, or (ii) the aggregate
amount of Capital Stock having ordinary voting power in the election of
directors of the Company held the Designated Holders (on a fully
diluted basis) shall not constitute at least 40% (or, at any time that
the Total Leverage Ratio as of the last day of the two most recently
completed fiscal quarters of the Company for which financial statements
have been delivered pursuant to subsection 7.1 is less than 3.50 to
1.00, 25%) of the issued and outstanding Capital Stock having such
voting power, or (iii) either of the Designated Holders shall own fewer
than 60% of the number of shares of Capital Stock of the Company of any
class held by them on the Closing Date (without giving effect to any
stock split or distribution of additional shares in respect thereof),
or (iv) a "Change of Control" (as defined in the Senior Subordinated
Indenture ) shall have occurred, or (v) the Board of Directors of the
Company shall not consist of a majority of Continuing Directors; as
used in this paragraph "Continuing Directors" shall mean the directors
of the Company on the Closing Date and each other director, if such
other director's nomination for election to the Board of Directors of
the Company is recommended by a majority of the then Continuing
Directors; or
(k) If the aggregate number of signs owned by the Company or
any of its Subsidiaries at the beginning of any period of twelve
consecutive months that are destroyed or otherwise lost to the Company
or such Subsidiary during such period (whether as a result of a
casualty loss, a governmental condemnation, a termination or expiration
of a lease or otherwise (but excluding as a result of a sale of assets
permitted hereunder)) and that shall not have been replaced by the end
of such period (whether with the proceeds of insurance, condemnation
awards or otherwise) shall exceed, in the case of the signs in all the
Company's markets, 5% of the signs in such markets at the beginning of
such period, on a pro forma basis assuming the Acquisition had occurred
at or prior to the commencement of such fiscal year;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of Section 9(f) above with respect to either Borrower,
automatically the Commitments shall immediately terminate and the Loans
(including the face amount of all Bankers' Acceptances accepted by any C$
Lender), with accrued interest thereon, and all other amounts owing under this
Agreement (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit
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shall have presented the documents required thereunder) and any Notes shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Majority Lenders, the US Administrative Agent and the Canadian
Administrative Agent may, or upon the request of the Majority Lenders, the US
Administrative Agent and the Canadian Administrative Agent shall, by notice to
the Borrowers declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the US Administrative Agent and the Canadian Administrative
Agent may, or upon the request of the Majority Lenders, the US Administrative
Agent and the Canadian Administrative Agent shall, by notice of default to the
Borrowers, declare the Loans hereunder (including the face amount of all
Bankers' Acceptances accepted by any C$ Lender), with accrued interest thereon,
and all other amounts owing under this Agreement (including, without limitation,
all amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and any Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable.
With respect to all Refunding of Bankers' Acceptances which
are outstanding at the time the Administrative Agents take any action pursuant
to this paragraph, the Canadian Borrower shall at such time deposit in a cash
collateral account opened by Canadian Administrative Agent an amount of cash
equal to the aggregate undiscounted face amount of all unmatured Bankers'
Acceptances. Amounts held in such cash collateral account shall be applied by
the Canadian Administrative Agent to the payment of maturing Bankers'
Acceptances, and the unused portion thereof after all such Bankers' Acceptances
shall have matured, if any, shall be applied to repay other obligations of the
Canadian Borrower hereunder. After all Bankers' Acceptances shall have been
satisfied and all other obligations of the Canadian Borrower hereunder shall
have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Canadian Borrower.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower that is the account party in
respect thereof shall at such time deposit in a cash collateral account opened
by the relevant Administrative Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Each Borrower hereby
grants to the relevant Administrative Agent, for the benefit of the relevant
Issuing Lender and the relevant L/C Participants, a security interest in such
cash collateral to secure all obligations of such Borrower under this Agreement
and the other Loan Documents. Amounts held in such cash collateral account shall
be applied by the relevant Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other Obligations. After all such Letters of Credit shall have
expired or been fully drawn upon, all L/C Reimbursement Obligations shall have
been satisfied and all other Obligations shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
relevant Borrower. Each Borrower shall execute and deliver to the relevant
Administrative Agent, for the account of the relevant Issuing Lender and the
relevant L/C Participants, such further documents and
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97
instruments as such Administrative Agent may request to evidence the creation
and perfection of the within security interest in such cash collateral account.
Except as expressly provided above in this Section ,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENTS
10.1 Appointment. (a) Each US$ Lender hereby irrevocably
designates and appoints Canadian Imperial Bank of Commerce, New York Agency, as
the US Administrative Agent of such US$ Lender, and each C$ Lender hereby
irrevocably designates and appoints CIBC as the Canadian Administrative Agent of
such C$ Lender, under this Agreement and the other Loan Documents, and each such
Lender irrevocably authorizes Canadian Imperial Bank of Commerce, New York
Agency, as the US Administrative Agent and CIBC, as the Canadian Administrative
Agent, for such Lender, to take such action on its behalf under the provisions
of this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agents by
the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Administrative Agents shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against either
Administrative Agent.
(b) For greater certainty and without limiting the powers of
the Canadian Administrative Agent herein and for the purposes of constituting
security on the Canadian Borrower's property in the Province of Quebec pursuant
to the Hypothec as security for the due payment of all obligations of the
Canadian Borrower under the Canadian Demand Debenture and the performance by the
Canadian Borrower of all of its obligations contained in the Canadian Demand
Debenture, the Lenders hereby irrevocably grant to the Canadian Administrative
Agent, for the purposes of holding, on behalf and for the benefit of all present
and future Lenders, the security constituted by the Canadian Borrower under the
Hypothec, a power of attorney (within the meaning of the Civil Code of Quebec)
for the present and future Lenders. The Canadian Administrative Agent hereby
accepts such power of attorney for the purposes of holding the security created
under the Hypothec on behalf of and for the benefit of all present and future
Lenders. To the extent that any Person becomes a Lender under this Agreement
after the date hereof, then such Person by becoming bound by the terms and
conditions of this Agreement, whether by assignment or otherwise, shall be
automatically deemed to have ratified the irrevocable granting by the Lenders to
the Canadian Administrative Agent of the power of attorney constituted
hereunder.
(c) Notwithstanding the provisions of Section 32 of the
Special Corporate Powers Act (Quebec), the Canadian Administrative Agent may, as
the Person holding the
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power of attorney of the present and future Lenders constituted hereunder,
acquire, in whole or in part, any rights to any title to indebtedness issued by
the Canadian Borrower and which is secured by the Hypothec, including without
limitation, the Canadian Demand Debenture.
10.2 Delegation of Duties. Each Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. Neither Administrative
Agent shall be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by either Administrative Agent under or in connection with,
this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the Notes or any other Loan Document or for any failure of any Loan Party to
perform its obligations hereunder or thereunder. Neither Administrative Agent
shall be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower.
10.4 Reliance by Administrative Agents. Each Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Company),
independent accountants and other experts selected by either Administrative
Agent. Each Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. Each Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Majority Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction (subject
to provisions in any such indemnification reflecting the exception for gross
negligence or willful misconduct set forth in the proviso in subsection 10.7) by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. Each
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes and the other Loan
Documents in accordance with a request of the Majority Lenders, and such request
and any
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action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
10.5 Notice of Default. Neither Administrative Agent shall be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless such Administrative Agent has received notice from a
Lender or the Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that either Administrative Agent receives such a notice, such
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agents shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Majority Lenders;
provided that unless and until the Administrative Agents shall have received
such directions, the Administrative Agents may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as they shall deem advisable in the best interests
of the Lenders.
10.6 Non-Reliance on Administrative Agents and Other Lenders.
Each Lender expressly acknowledges that neither Administrative Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by either
Administrative Agent hereinafter taken, including any review of the affairs of
the Company, shall be deemed to constitute any representation or warranty by
either Administrative Agent to any Lender. Each Lender represents to the
Administrative Agents that it has, independently and without reliance upon
either Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agents or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agents hereunder, neither Administrative Agent
shall have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrowers which
may come into the possession of either Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify each
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought under this subsection (or, if
indemnification is sought after the date upon which the Commitments
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shall have terminated and the Obligations shall have been paid in full, ratably
in accordance with their Commitment Percentages immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes) be imposed on, incurred by or asserted
against such Administrative Agent in any way relating to or arising out of this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by either Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from such Administrative Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
10.8 Administrative Agents in Their Individual Capacities. The
Administrative Agents and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrowers as though the
Administrative Agents were not the Administrative Agents hereunder and under the
other Loan Documents. With respect to its Loans made or renewed by it and any
Note issued to it and with respect to any Letter of Credit issued or
participated in by it, each Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agents in its individual
capacity.
10.9 Successor Administrative Agent. Each Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders. If
either Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Majority Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
shall be approved by the Company (which approval shall not be unreasonably
withheld), whereupon such successor agent shall succeed to the rights, powers
and duties of such Administrative Agent, and the term "US Administrative Agent"
or "Canadian Administrative Agent", as the case may be, shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as such Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Notes. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
10.10 Releases of Guarantees and Collateral. In connection
with the sale or other disposition of all of the Capital Stock of any Guarantor
or the sale or other disposition of Collateral (as defined in each of the
Security Documents) permitted under
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subsection 8.6, the Administrative Agents shall, and are hereby authorized by
the Lenders to, promptly, upon the request of the Borrowers and at the sole
expense of the Borrowers, take all actions reasonably necessary to release such
Guarantor from its guarantee contained in the US Guarantee and Collateral
Agreement or its Guarantee or to release the Collateral subject to such sale or
other disposition, as the case may be, and shall take any other actions
reasonably requested by the Borrowers to effect the transactions permitted under
subsection 8.6.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement, any Note
or any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the US Administrative Agent may, from time to time, (a) enter
into with the Borrowers written amendments, supplements or modifications hereto
and to any Notes and the other Loan Documents for the purpose of adding any
provisions to this Agreement, any Notes or the other Loan Documents or changing
in any manner the rights of the Lenders or of the Borrowers hereunder or
thereunder or (b) waive, on such terms and conditions as the Majority Lenders or
the US Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement, any Notes or the other Loan Documents
or any Default or Event of Default and its consequences; provided, however, that
no such waiver and no such amendment, supplement or modification shall:
(i) reduce the amount or extend the scheduled date of
maturity of any Loan or any installment thereof or any L/C Obligation
or reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof or increase the amount
or extend the expiration date of any Lender's Commitments, in each case
without the consent of each Lender affected thereby; or
(ii) amend, modify or waive any provision of this
subsection 11.1 or reduce the percentage specified in the definition of
Majority Lenders, or consent to the assignment or transfer by either
Borrower of any of its rights and obligations under this Agreement and
the other Loan Documents or release any guarantee obligation contained
in the US Guarantee and Collateral Document or any of the other
Guarantees or release all or a substantial part of the Collateral
(other than in connection with any release permitted by subsection
10.10), in each case without the written consent of all the Lenders; or
(iii) amend, modify or waive any provision of Section 10
without the written consent of the then Administrative Agents; or
(iv) amend, modify or waive any provision of this
Agreement regarding (x) the allocation of prepayment amounts among the
Term Loans or the application of such prepayment amounts to the
respective installments of principal under the
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respective Term Loans, without the written consent of (A) the US
Tranche A Term Loan Lenders the US Tranche A Term Loan Commitment
Percentages of which aggregate more than 50%, (B) the Canadian Tranche
A Term Loan Lenders the Canadian Tranche A Term Loan Commitment
Percentages of which aggregate more than 50%, (C) the US Tranche B Term
Loan Lenders the US Tranche B Term Loan Commitment Percentages of which
aggregate more than 50% and (D) the Canadian Tranche B Term Loan
Lenders the Canadian Tranche B Term Loan Commitment Percentages of
which aggregate more than 50%, or (y) the right to decline mandatory
prepayments set forth in subsection 4.3(f)(iv) without the written
consent of (A) the US Tranche B Term Loan Lenders the US Tranche B Term
Loan Commitment Percentages of which aggregate more than 50%, in the
case of such right of US Tranche B Term Loan Lenders, and (B) the
Canadian Tranche B Term Loan Lenders the Canadian Tranche B Term Loan
Commitment Percentages of which aggregate more than 50%, in the case of
such right of Canadian Tranche B Term Loan Lenders; or
(v) subject to clause (i) above as it relates to
reducing the amount or extending the scheduled date of maturity of any
Loan or any installment thereof, amend, modify or waive any provision
of (A) subsection 2.8 (to the extent subsection 2.8 relates to the US
Tranche A Term Loans) or subsection 2.10 without the written consent of
US Tranche A Term Loan Lenders the US Tranche A Term Loan Commitment
Percentages of which aggregate more than 50%, (B) subsection 2.8 (to
the extent subsection 2.8 relates to the US Tranche B Term Loans) or
subsection 2.11 without the written consent of US Tranche B Term Loan
Lenders the US Tranche B Term Loan Percentages of which aggregate more
than 50%, (C) subsection 2.9 (to the extent subsection 2.9 relates to
the Canadian Tranche A Term Loans) or subsection 2.12 without the
written consent of Canadian Tranche A Term Loan Lenders the Canadian
Tranche A Term Loan Commitment Percentages of which aggregate more than
50%, or (D) subsection 2.9 (to the extent subsection 2.9 relates to the
Canadian Tranche B Term Loans) or subsection 2.13 without the written
consent of Canadian Tranche B Term Loan Lenders the Canadian Tranche B
Term Loan Commitment Percentages of which aggregate more than 50%; or
(vi) amend, modify or waive any provision of subsection
2.1, 2.3, 2.4 or 2.7 or, subject to paragraph (i) above as it relates
to reducing the amount or extending the scheduled date of maturity of
any L/C Obligation, Section 3 without the written consent of the US
Revolving Credit Lenders the US Revolving Credit Commitment Percentages
of which aggregate more than 50%; or
(vii) amend, modify or waive any provision of subsection
2.2, 2.4, 2.5 or 2.7 or, subject to paragraph (i) above as it relates
to reducing the amount or extending the scheduled date of maturity of
any L/C Obligation, Section 3 without the written consent of the
Canadian Revolving Credit Lenders the Canadian Revolving Credit
Commitment Percentages of which aggregate more than 50%; or
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(viii) amend, modify or waive the provisions of any
Letter of Credit or any L/C Obligation without the written consent of
the Issuing Lender; or
(ix) amend, modify or waive any provision of any
Security Document that provides for the ratable sharing by the Lenders
under such Security Document of the proceeds of any realization on the
Collateral to provide for a non-ratable sharing thereof, without the
consent of (w) the Revolving Credit Lenders the Revolving Credit
Commitment Percentages of which aggregate more than 50%, (x) Tranche A
Term Loan Lenders the Tranche A Term Loan Commitment Percentages of
which aggregate more than 50% and (y) Tranche B Term Loan Lenders the
Tranche B Term Loan Commitment Percentages of which aggregate more than
50%.
In the case of any waiver, the Borrowers, the Lenders and the Administrative
Agents shall be restored to their former position and rights hereunder and under
any outstanding Notes and any other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or five days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrowers and the
Administrative Agents, and as set forth in Schedule 1.1A in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future Lenders:
The Borrowers: Outdoor Systems, Inc.
2502 North Black Canyon Highway
Phoenix, Arizona 85009
Attention: William S. Levine
Telecopy: (602) 433-2482
The US Administrative Canadian Imperial Bank of Commerce
Agent: 425 Lexington Avenue
New York, New York 10017
Attention: Matthew Jones
Telecopy: (212) 856-3558
The Canadian Canadian Imperial Bank of Commerce
Administrative Agent: Commerce Court West, 50th Floor
Toronto, Ontario, Canada M5L1A2
Attention:
Telecopy:
<PAGE> 109
104
provided that any notice, request or demand to or upon the Administrative Agents
or the Lenders pursuant to subsection 2.4, 2.5, 2.7, 2.14, 2.15, 2.16, 3.2, 4.2,
4.4 or 4.8 shall not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of either Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and any Notes and the making of the Loans hereunder.
11.5 Payment of Expenses and Taxes. Each Borrower agrees (a)
to pay or reimburse each Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement, any Notes and the other Loan Documents and any other documents
prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agents, (b) to pay or reimburse each Lender and each
Administrative Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, any Notes,
the other Loan Documents and any such other documents, including, without
limitation, the fees and disbursements of counsel to the Administrative Agents
and to the several Lenders, and (c) to pay, indemnify, and hold each Lender and
each Administrative Agent harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, any Notes, the other Loan Documents and any such
other documents, and (d) to pay, indemnify, and hold each Lender and each
Administrative Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, any Notes, the other Loan Documents and any such other documents,
including, without limitation, any of the foregoing relating to the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Company, any of its Subsidiaries or any of the Properties
(all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided, that the Borrowers shall have no obligation hereunder
to either
<PAGE> 110
105
Administrative Agent or any Lender with respect to indemnified liabilities
arising from (i) the gross negligence or willful misconduct of such
Administrative Agent or any such Lender or (ii) legal proceedings commenced
against such Administrative Agent or any such Lender by any security holder or
creditor thereof arising out of and based upon rights afforded any such security
holder or creditor solely in its capacity as such. The agreements in this
subsection shall survive repayment of the Loans and all other amounts payable
hereunder and, in the case of any Lender that may assign any interest under
subsection 11.6(b), shall survive the making of such assignment, notwithstanding
that such Lender may cease to be a party hereto.
11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Administrative Agents, all future holders of any
Notes and their respective successors and assigns, except that the Borrowers may
not assign or transfer any of their rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Note for all purposes under this Agreement and the other Loan
Documents, and the Borrowers and the Administrative Agents shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan Documents. The
Borrowers agree that if amounts outstanding under this Agreement and any Notes
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Note to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement or any Note, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 11.7(a) as fully as if it
were a Lender hereunder. The Borrowers also agree that each Participant shall be
entitled to the benefits of subsections 4.10, 4.11 and 4.12 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of subsection 4.11, such
Participant shall have complied with the requirements of said subsection and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
<PAGE> 111
106
(c) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time and from time to time assign to
any Lender or any affiliate thereof or, with the consent of the Company (except
in the case of assignments made by CIBC Inc. in connection with its initial
syndication of the Loans) and the Administrative Agents (which in each case
shall not be unreasonably withheld), to any additional bank or financial
institution ("an Assignee") all or any part of its rights and obligations under
this Agreement and any Notes pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit E to the Existing Credit Agreement,
executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an affiliate thereof, by the Company
(except in connection with the initial syndication by CIBC Inc. referred to
above) and the Administrative Agents) and delivered to the Administrative Agents
for acceptance and recording in the relevant Register, provided that the
aggregate amount of Term Loans and Revolving Credit Commitments assigned
pursuant to any such assignment, and the amount retained by the assigning Lender
(unless such Lender is assigning all of its Loans and Commitments), must be in
an amount not less than $5,000,000. Upon such execution, delivery, acceptance
and recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment as set forth therein,
and (y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto, except that it shall
remain entitled to the benefit of any indemnity stated to survive the
termination hereof). Notwithstanding any provision of this paragraph (c) and
paragraph (e) of this subsection, the consent of the Company shall not be
required, and, unless requested by the Assignee and/or the assigning Lender, new
Notes shall not be required to be executed and delivered by either Borrower, for
any assignment which occurs at any time when any of the events described in
Section 9(f) shall have occurred and be continuing. Notwithstanding any
provision of this paragraph (c) and paragraph (e) of this subsection, no
Assignment and Acceptance shall be effective unless and until it shall have been
accepted by the applicable Administrative Agent and recorded in the Register as
provided in paragraph (d) of this subsection.
(d) Each Administrative Agent shall, on behalf of the
respective Borrowers, with respect to the Loans relevant to such Administrative
Agent, maintain at its address referred to in subsection 11.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitments
of, and principal amount of the Loans owing to, each relevant Lender from time
to time. The entries in the Registers shall be conclusive, in the absence of
manifest error, and the Borrowers, the Administrative Agents and the Lenders may
(and, in the case of any Loan or other obligation hereunder not evidenced by a
Note, shall) treat each Person whose name is recorded in Registers as the owner
of the Loan recorded therein for all purposes of this Agreement. Any assignment
of any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
relevant Register. The Registers shall be available for
<PAGE> 112
107
inspection by the relevant Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Company (except in connection
with the initial syndication by CIBC Inc. referred to above) and the
Administrative Agents), together (except as may be waived by the applicable
Administrative Agent in the case of assignments contemplated to occur
substantially concurrently with the Closing Date) with payment to the relevant
Administrative Agent of a registration and processing fee of $3,500, the
relevant Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record the
information contained therein in the relevant Register and give notice of such
acceptance and recordation to the Lenders and the Company.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
subject to the provisions of subsection 11.15, any and all information in such
Lender's possession concerning the Borrowers and their Affiliates which has been
delivered to such Lender by or on behalf of either Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of either
Borrower in connection with such Lender's credit evaluation of the Borrowers and
their Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
11.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") at any time shall receive from either Borrower or any Guarantor any
payment of all or part of any Class of Loans or L/C Reimbursement Obligations,
or interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 9(f) or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans or L/C Reimbursement Obligations of such
Class, or interest thereon, such benefitted Lender shall purchase for cash from
the other Lenders which hold Loans or L/C Reimbursement Obligations of such
Class such portion of each such other Lender's Loans or L/C Reimbursement
Obligations of such Class, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of such other Lenders; provided,
however, that if at the time of the receipt by the benefitted Lender of such
payment or collateral amounts shall be then due and unpaid in respect of more
than one Class, the sharing described in this subsection shall include all
Classes with respect to which amounts are then due and unpaid (provided that in
no event shall any such sharing which shall occur
<PAGE> 113
108
prior to the date upon which the Loans shall have become due and payable
(whether at the stated maturity, by acceleration or otherwise) be effected (i)
among Classes in respect of which the obligors are not the same Borrower ,(ii)
by the Canadian Tranche B Lenders with any other Class in respect of which the
obligor is the Canadian Borrower or (iii) which would result in any Canadian
Tranche B Lender receiving amounts in excess of the limits imposed by subsection
4.3(f)(iii)); and provided, further, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. Each Borrower agrees that
each Lender so purchasing a portion of another Lender's Loan may exercise all
rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
(b) If, as a result of the operation of the second sentence of
subsection 2.16(b)(7), any Canadian Revolving Credit Lender shall, on any date
upon which all the Loans shall be accelerated in accordance with the last
paragraph of Section 9, be the issuer Bankers' Acceptances in an aggregate
amount which is less than such Canadian Revolving Credit Lender's Canadian
Revolving Credit Commitment Percentage of the aggregate amount of all the then
outstanding Bankers' Acceptances, such Canadian Revolving Credit Lender shall
purchase for cash from each of the other Canadian Revolving Credit Lenders such
portion of each such other Canadian Revolving Credit Lender's obligations with
respect to then outstanding Bankers' Acceptances as shall be necessary to cause
all such obligations with respect to Bankers' Acceptances to be held ratably
among the Canadian Revolving Credit Lenders according to their respective
Canadian Revolving Credit Commitment Percentages. The Canadian Borrower agrees
that each Canadian Revolving Credit Lender so purchasing a portion of another
Canadian Revolving Credit Lender's obligations with respect to Bankers'
Acceptances may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
(c) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to
either Borrower, any such notice being expressly waived by each Borrower to the
extent permitted by applicable law, upon any amount becoming due and payable by
either Borrower hereunder or under any Notes (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of such Borrower. Each Lender
agrees promptly to notify the Company and the US Administrative Agent after any
such set-off and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy),
<PAGE> 114
109
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the US Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agents and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by either Administrative Agent or
any Lender relative to subject matter hereof not expressly set forth or referred
to herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE NOTES
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. Each Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address set forth in subsection 11.2
or at such other address of which the Administrative Agents shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
<PAGE> 115
110
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
11.13 Acknowledgements. Each Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement, the Notes and the other Loan
Documents;
(b) neither Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and such Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrowers and the
Lenders.
11.14 WAIVERS OF JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.15 Confidentiality. Each Lender agrees to keep confidential
all non-public information provided to it by the Company pursuant to this
Agreement that is designated by the Company in writing as confidential; provided
that nothing herein shall prevent any Lender from disclosing any such
information (i) to the Administrative Agents or any other Lender, (ii) to any
Transferee which agrees to comply with the provisions of this subsection, (iii)
to its employees, directors, agents, attorneys, accountants and other
professional advisors, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (vi) which has been publicly disclosed other
than in breach of this Agreement, or (vii) in connection with the exercise of
any remedy hereunder.
<PAGE> 116
111
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
OUTDOOR SYSTEMS, INC.
By:/s/ William S. Levine
-------------------------------------
Title: Chairman
MEDIACOM, INC.
By:/s/ William S. Levine
-------------------------------------
Title: Chairman
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY, as
US Administrative Agent
By:/s/ Matthew B. Jones
-------------------------------------
Title: Authorized Signatory
CANADIAN IMPERIAL BANK OF
COMMERCE, as Canadian Administrative
Agent and as a Lender
By:/s/ Matthew B. Jones
-------------------------------------
Title: Authorized Signatory
CIBC INC., as a Lender
By:/s/ Matthew B. Jones
-------------------------------------
Title: Authorized Signatory
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY, as a
Lender
<PAGE> 117
112
By:/s/ Matthew B. Jones
-------------------------------------
Title: Authorized Signatory
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By: /s/ Shannon T. Ward
-------------------------------------
Title: Vice President
BANK OF AMERICA CANADA
By:/s/ Derrek R. Wong
-------------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON
By:/s/ Mark S. Denomme
-------------------------------------
Title: Director
BANQUE PARIBAS
By: /s/ Thomas G. Brandt
-------------------------------------
Title: Vice President
BANQUE PARIBAS
By: /s/ Harry Collyns
-------------------------------------
Title: Vice President
PARIBAS BANK OF CANADA
By: /s/ Michael Gosselin
-------------------------------------
Title: Vice President
CHL HIGH YIELD LOAN PORTFOLIO
(A UNIT OF THE CHASE
MANHATTAN BANK)
<PAGE> 118
2
By: /s/ Andrew D. Gordon
-------------------------------------
Title: Managing Director
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ Jim Redman
-------------------------------------
Title: Senior Vice President
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By: /s/ Joan M. Chiappe
-------------------------------------
Title: Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Mary Ann McCarthy
-------------------------------------
Title: Managing Director
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By: /s/ Gilles Marchand
-------------------------------------
Title: Authorized Signatory
SENIOR HIGH INCOME PORTFOLIO,
INC.
By: /s/ Gilles Marchand
-------------------------------------
Title: Authorized Signatory
PILGRIM AMERICA PRIME RATE
TRUST
By: /s/ Michael Bacevich
-------------------------------------
Title: Vice President
<PAGE> 119
3
PRIME INCOME TRUST
By: /s/ Rafael Scolari
-------------------------------------
Title: Vice President
PROTECTIVE LIFE INSURANCE
COMPANY
By: /s/ Mark K. Okada, CFA
-------------------------------------
Title: Principal, Protective Asset
Management Co.
THE TRAVELERS INSURANCE
COMPANY
By: /s/ Allen R. Cantrell
-------------------------------------
Title: Investment Officer
PUTNAM HIGH YIELD TRUST
By: /s/ Paul M. O'Neil
-------------------------------------
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.
BY TCW ASSET MANAGEMENT, ITS
INVESTMENT MANAGER
By: /s/ Mark L. Gold
-------------------------------------
Title: Vice President
INTEGON LIFE INSURANCE
CORPORATION BY TCW ASSET
MANAGEMENT COMPANY, ITS
ATTORNEY IN FACT
By: /s/ Mark L. Gold
-------------------------------------
Title: Vice President
OCCIDENTAL LIFE INSURANCE
COMPANY OF NORTH CAROLINA BY
TCW ASSET MANAGEMENT
COMPANY, ITS ATTORNEY IN FACT
By: /s/ Mark L. Gold
-------------------------------------
Title: Vice President
<PAGE> 120
4
CONTINENTAL CASUALTY
COMPANY
By: /s/ Richard W. Dubberke
-------------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA NA
By: /s/ J. Kevin Sampson
-------------------------------------------
Title: Vice President
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: /s/ Jeffrey W. Maillet
-------------------------------------------
Title: Senior Vice President -
Portfolio Manager
MERRILL LYNCH PRIME RATE
PORTFOLIO
By: MERRILL LYNCH ASSET
MANAGEMENT, L.P., AS
INVESTMENT ADVISOR
By: /s/ Gilles Marchand
-------------------------------------------
Title: Authorized Signatory
OAK HILL SECURITIES FUND, L.P.
BY: Oak Hill Securities GenPar, L.P., its
General Partner
BY: Oak Hill Securities MGP, Inc., its
General Partner
By: /s/ Scott Krase
Name: Scott Krase
-------------------------------------------
Title: Vice President
<PAGE> 121
INDOSUEZ CAPITAL FUNDING II,
LIMITED
By: INDOSUEZ CAPITAL, AS
PORTFOLIO ADVISOR
By: /s/ Francoise Berthelot
-------------------------------------
Title: Vice President
<PAGE> 122
3
Schedule 1.1B
APPLICABLE MARGIN GRID
APPLICABLE MARGIN FOR EURODOLLAR LOANS AND BANKERS' ACCEPTANCES:
<TABLE>
<CAPTION>
Revolving Credit
Loans and Tranche Tranche B
Total Leverage Ratio A Term Loans Term Loans
-------------------- ------------ ----------
<S> <C> <C>
Greater than or equal to 6.00:1.00 2.750% 3.000%
Greater than or equal to 5.50:1.00
and less than 6.00:1.00 2.375% 3.000%
Greater than or equal to 5.00:1.00
and less than 5.50:1.00 2.125% 3.000%
Greater than or equal to 4.50:1.00
and less than 5.00:1.00 1.875% 3.000%
Greater than or equal to 4.00:1.00
and less than 4.50:1.00 1.625% 3.000%
Greater than or equal to 3.50:1.00
and less than 4.00:1.00 1.375% 2.750%
Less than 3.50:1.00 1.125% 2.750%
</TABLE>
APPLICABLE MARGIN FOR ABR AND C$ PRIME LOANS: For each applicable Total
Leverage Ratio, a margin
that is 1.00% per annum less
than the Applicable Margin
for Eurodollar
Loans/Bankers' Acceptances
set forth above
<PAGE> 123
GLOBAL AFFIRMATION AND RESTATEMENT
Reference is made to the (i) Third Amended and Restated Credit
Agreement, dated as of August 22, 1996 (the "Existing Credit Agreement"), among
Outdoor Systems, Inc., a Delaware corporation (the "Company"), 3284085 Canada
Inc., a Canadian corporation (such corporation and the corporation resulting
from the amalgamation of 3284085 Canada Inc. and Mediacom Inc., the "Canadian
Borrower"), the several banks and other financial institutions parties thereto,
Canadian Imperial Bank of Commerce, New York Agency, as US Administrative Agent
(the "US Administrative Agent") and Canadian Imperial Bank of Commerce, as
Canadian Administrative Agent (the "Canadian Administrative Agent") and (ii) the
Fourth Amended and Restated Credit agreement, dated as of October __, 1996 (the
"Amended and Restated Credit Agreement"), among the Company, the Canadian
Borrower, the several banks and other financial institutions parties thereto
(the "Lenders"), the US Administrative Agent and the Canadian Administrative
Agent. All capitalized terms used herein that are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Existing Credit
Agreement or the Amended and Restated Credit Agreement as the context may
require.
In connection with the Amended and Restated Credit Agreement,
each of the undersigned Loan parties thereunder hereby acknowledges receipt
thereof and hereby (i) affirms its obligations under each Loan Document to which
it is a party, and affirms and agrees that each such Loan Document is and shall
remain in full force and effect, in each case upon and after giving effect to
the Amended and Restated Credit Agreement and (ii) represents and warrants to
the Lenders that all representations and warranties made by it under each Loan
Document to which it is a party are true and correct as if made on the date
hereof, in each case upon and after giving effect to the Amended and Restated
Credit Agreement and to the affirmations and agreements set forth herein.
Each of the undersigned Loan Parties further agrees that (i)
each reference in each Loan Document to the "Credit Agreement" shall hereafter
include reference to the Amended and Restated Credit Agreement, (ii) each
guarantee, grant of security interest and other obligation and agreement made,
granted, undertaken or agreed to by it in respect of or by reference to the
"Credit Agreement", any term defined therein or any obligations thereunder shall
be deemed to have been, and hereby is, made, granted, undertaken and agreed to,
as the case may be, in respect of the Amended and Restated Credit Agreement, the
terms defined therein and the obligations thereunder, as applicable, and (iii)
each Loan Document is hereby affirmed, amended and restated to the extent
necessary to effectuate the foregoing.
<PAGE> 124
2
Dated as of: October __, 1996
OUTDOOR SYSTEMS, INC.
By:
-------------------------------------
Title:
OUTDOOR SYSTEMS PAINTING, INC.
By:
-------------------------------------
Title:
OS ADVERTISING OF TEXAS
PAINTING, INC.
By:
-------------------------------------
Title:
OS BASELINE, INC.
By:
-------------------------------------
Title:
DECADE COMMUNICATIONS
GROUP, INC.
By:
-------------------------------------
Title:
<PAGE> 125
3
BENCH ADVERTISING COMPANY OF
COLORADO, INC.
By:
-------------------------------------
Title:
NEW YORK SUBWAYS
ADVERTISING, CO. INC.
By:
-------------------------------------
Title:
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