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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) April 5, 1996
UNIVERSAL OUTDOOR, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
ILLINOIS 33-72710 36-2827496
(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION) FILE NO.)
</TABLE>
321 NORTH CLARK STREET, SUITE 1010, CHICAGO, ILLINOIS 60610
REGISTRANT'S TELEPHONE NUMBER: (312) 644-8673
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
In February 1996, Universal Outdoor, Inc. ("Universal"), a wholly-
owned subsidiary of Universal Outdoor Holdings, Inc. ("Holdings"), entered
into an agreement to acquire the stock of NOA Holding Company, Inc. ("NOA")
in a stock purchase transaction with NOA (the "Naegele Acquisition"). NOA
owned all of the outstanding shares of Naegele Outdoor Advertising Company
("Naegele"). Naegele is actively engaged in the outdoor advertising
business in the Minneapolis/St. Paul and Jacksonville (Florida) markets
and, in connection with acquisition of the stock of NOA, Universal acquired
the operations of Naegele, in these markets. The Naegele Acquisition was
consummated on April 5, 1996, pursuant to which Universal acquired
approximately 2,550 poster faces (of which approximately 1,455 are located
in the Minneapolis/St. Paul market and approximately 1,095 are located in
Jacksonville (Florida) market) and approximately 840 painted bulletin faces
(of which approximately 440 are located in the Minneapolis/St. Paul market
and approximately 400 are located in the Jacksonville (Florida) market).
Such acquired properties were previously used for outdoor advertisements in
the outdoor advertising industry and Universal intends to continue to use
such properties for the same purposes.
The purchase price of the Naegele Acquisition was approximately $85
million.The purchase price was determined by negotiation with the seller in
an auction process and was based on an evaluation by Universal of the
probable cash flow to be generated by the acquired assets, the cost of
duplicating or replacing the acquired assets and other similar factors. The
Company expects fees and expenses associated with the transaction to be
approximately $5 million. In connection therewith, Universal received
commitments from its current lender under its existing secured revolving
credit facility, LaSalle National Bank ("LaSalle"), and an additional bank,
Bankers Trust Company ("Bankers Trust"; together with LaSalle, the
"Lenders"), to (i) refinance such existing credit facility with a revolving
credit facility (the "Revolving Credit Facility") and (ii) provide an
additional extension of credit for purposes of acquisition financing (the
"Acquisition Credit Facility"), and, specifically, the financing, in part,
of the Naegele Acquisition. The Lenders extended a revolving credit line
in the amount of $12,500,000 under the Revolving Credit Facility and an
acquisition term loan in the amount of $75,000,000, as well as an
acquisition revolving credit line in the amount of $12,500,000 for a total
commitment of $87,500,000 under the Acquisition Credit Facility. No
amounts were drawn under the Revolving Credit Facility to finance the
Naegele Acquisition; the Revolving Credit Facility is available to
Universal for working capital needs. Approximately $84.5 million was drawn
under the Acquisition Credit Facility and was used to finance the Naegele
Acquisition. Each of the Revolving Credit Facility and the Acquisition
Credit Facility are secured by a lien on the assets of Universal and a
pledge of the stock of Holdings, as well as a pledge of the stock of all
wholly-owned subsidiaries of Universal. In addition to the amounts drawn
under the Acquisition Credit Facility, Holdings sold a minority portion of
its capital stock. Approximately $30 million in cash proceeds from such
sale were used to finance the remaining amount of the Naegele Acquisition.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of businesses acquired.
It is impracticable at the time of filing this report to provide the
required financial statements for Naegele, the acquired business. Such required
financial statements will be filed as an amendment to this report as soon as
practicable, but not later than June 19, 1996.
(b) Pro forma financial information.
It is impracticable at the time of filing this report to provide the
required pro forma financial information for Naegele, the acquired business.
Such required pro forma financial information will be filed as an amendment to
this report as soon as practicable, but not later than June 19, 1996.
(c) Exhibits.
2.1 NOA Stock Purchase Agreement
2.2 Amendment to NOA Stock Purchase Agreement
3.1 Second Restated Articles of Incorporation of Universal
3.2 Amended and Restated By-Laws of Universal
10.1 Revolving Credit Agreement
10.2 Acquisition Credit Agreement
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SIGNATURE
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.
Universal Outdoor, Inc.
--------------------------------------
(Registrant)
May 13, 1996 /s/ Brian T. Clingen
--------------------------------------
Brian T. Clingen
Vice President and Chief Financial Officer
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LIST OF EXHIBITS
Exhibit Page
------- ----
2.1 NOA Stock Purchase Agreement
2.2 Amendment to NOA Stock Purchase Agreement
3.1 Second Restated Articles of Incorporation of Universal
3.2 By-Laws of Universal
10.1 Revolving Credit Agreement
10.2 Acquisition Credit Agreement
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<PAGE>
STOCK PURCHASE AGREEMENT
BETWEEN
WIND POINT PARTNERS II, L.P.
MARQUETTE VENTURE PARTNERS, L.P.
CHEMICAL EQUITY ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP
BANC ONE VENTURE CORPORATION and
MANAGEMENT SHAREHOLDERS
AND
UNIVERSAL OUTDOOR, INC.
RELATING TO THE
CAPITAL STOCK OF
NOA HOLDING COMPANY
DATED FEBRUARY 27, 1996
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TABLE OF CONTENTS
Page
----
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Sale of Shares; Purchase Price . . . . . . . . . . . . . . . . . . . . . 6
3. Representations and Warranties of Sellers as to Themselves . . . . . . . 10
(a) Organization and Authority of Each Seller. . . . . . . . . . . . . 11
(b) Due Execution and Absence of Breach. . . . . . . . . . . . . . . . 11
(c) Good Title to the Shares . . . . . . . . . . . . . . . . . . . . . 12
4. Representations and Warranties of the Sellers as to Holding and the
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(a) Organization and Good Standing . . . . . . . . . . . . . . . . . . 12
(b) Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(c) Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(d) Financial Statements . . . . . . . . . . . . . . . . . . . . . . . 13
(e) No Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . 14
(f) No Material Adverse Change; Business Conducted in the Ordinary
Course; No Dividends . . . . . . . . . . . . . . . . . . . . . . . 14
(g) Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(h) Patents, Trademarks and Copyrights . . . . . . . . . . . . . . . . 15
(i) Real Property; Leases of Real Property . . . . . . . . . . . . . . 15
(j) Sign Location Leases . . . . . . . . . . . . . . . . . . . . . . . 16
(k) Permits; Compliance with Laws. . . . . . . . . . . . . . . . . . . 16
(l) Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(m) Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . 17
(n) Title to Properties; Absence of Encumbrances . . . . . . . . . . . 18
(o) Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(p) Litigation; Consents . . . . . . . . . . . . . . . . . . . . . . . 19
(q) Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . 20
(r) Labor Agreements . . . . . . . . . . . . . . . . . . . . . . . . . 20
(s) ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(t) Affiliate Transactions . . . . . . . . . . . . . . . . . . . . . . 22
5. Representations and Warranties of Purchaser. . . . . . . . . . . . . . . 22
(a) Organization and Good Standing . . . . . . . . . . . . . . . . . . 22
(b) Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(c) Litigation; Consents . . . . . . . . . . . . . . . . . . . . . . . 22
(d) Execution and Effect of Agreement. . . . . . . . . . . . . . . . . 23
(e) Investment Representation. . . . . . . . . . . . . . . . . . . . . 23
(f) Sources of Information . . . . . . . . . . . . . . . . . . . . . . 23
(g) Financing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6. Covenants of Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Access to Documents; Opportunity to Ask Questions. . . . . . . . . 23
(b) Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . 24
(c) Conduct of Business. . . . . . . . . . . . . . . . . . . . . . . . 24
(d) Consents; Conditions Precedent . . . . . . . . . . . . . . . . . . 25
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(e) Hart-Scott-Rodino Filings. . . . . . . . . . . . . . . . . . . . . 25
(f) Discharge of Indebtedness. . . . . . . . . . . . . . . . . . . . . 26
(g) Share Certificates . . . . . . . . . . . . . . . . . . . . . . . . 26
(h) Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(i) No Shop. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7. Covenants of Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . 27
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . 27
(b) Consents; Conditions Precedent . . . . . . . . . . . . . . . . . . 27
(c) Hart-Scott-Rodino Filings. . . . . . . . . . . . . . . . . . . . . 27
(d) Employee and Employee Plans. . . . . . . . . . . . . . . . . . . . 27
8. Conditions Precedent to Purchaser's Obligation . . . . . . . . . . . . . 27
9. Conditions Precedent to Sellers' Obligation. . . . . . . . . . . . . . . 29
10. Closing Date; Closing . . . . . . . . . . . . . . . . . . . . . . . . . 31
11. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(a) Agreement by the Sellers to Indemnify. . . . . . . . . . . . . . . 32
(b) Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(c) Limitation on Claims . . . . . . . . . . . . . . . . . . . . . . . 33
(d) Losses Defined . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(e) Notice and Opportunity to Defend . . . . . . . . . . . . . . . . . 34
(f) Escrow Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(g) Material Adverse Effect Definition . . . . . . . . . . . . . . . . 35
12. No Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
13. Specific Performance. . . . . . . . . . . . . . . . . . . . . . . . . . 35
14. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
15. Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
16. Confidentiality, Press Releases . . . . . . . . . . . . . . . . . . . . 36
17. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
18. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
19. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
20. Section Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
21. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
22. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
23. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
24. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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25. Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 39
26. Sellers' Representative . . . . . . . . . . . . . . . . . . . . . . . . 39
LIST OF SCHEDULES AND EXHIBITS
Schedules
1 Management Shareholders
2(d) Capital Leases
3(c) Shares Owned
4(b) Options, Warrants, Other Securities
4(e) Undisclosed Liabilities
4(f) Ordinary Course of Business
4(g) Tax Matters
4(h) Patents, Trademarks and Copyrights
4(i) Real Property and Material Leases
4(k) Compliance with Law
4(l) Insurance Policies
4(m) Material Contracts
4(n) Encumbrances
4(o) Restrictions
4(p) Litigation
4(q) Environmental Matters
4(r) Labor Agreements
4(s) ERISA
4(t) Affiliate Transactions
5(c) Consents
Exhibits
A Escrow Agreement
A-1 Terms of Escrow Arrangement
B Form of Opinion of Counsel to Sellers
C Form of Opinion of Counsel to Purchaser
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<PAGE>
STOCK PURCHASE AGREEMENT
AGREEMENT made this 27th day of February, 1996, by and between
UNIVERSAL OUTDOOR, INC., an Illinois corporation (hereinafter referred to as
"Purchaser"), and WIND POINT PARTNERS II, L.P., a Delaware limited partnership
("Wind Point"); MARQUETTE VENTURE PARTNERS, L.P., a Delaware limited partnership
("Marquette"); CHEMICAL EQUITY ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP
("Chemical"); BANC ONE VENTURE CORPORATION, a Wisconsin corporation ("Banc
One"); and the MANAGEMENT SHAREHOLDERS (as hereinafter defined) (Wind Point,
Marquette, Chemical and Banc One being sometimes hereinafter referred to
collectively as the "Institutional Sellers" and, together with the Management
Shareholders, the "Sellers").
W I T N E S S E T H:
WHEREAS, Sellers are the owners of all of the issued and outstanding
shares of common stock of NOA HOLDING COMPANY, a Delaware corporation
("Holding"); and
WHEREAS, Holding is the owner of all of the issued and outstanding
shares of common stock of NAEGELE OUTDOOR ADVERTISING COMPANY, a Delaware
corporation (the "Company"); and
WHEREAS, the Company is in the business of owning and operating
outdoor advertising businesses in the Minneapolis/St. Paul, Minnesota
metropolitan area (the "Twin City Market") and in the Jacksonville, Florida
metropolitan area (the "Jacksonville Market"); and
WHEREAS, Sellers desire to sell all of the issued and outstanding
common stock of Holding to Purchaser, and Purchaser desires to purchase such
stock from Sellers, for the purchase price and upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the indicated meanings, which meanings shall be applicable, except to the
extent otherwise indicated in a definition of a particular term, both to the
singular and plural forms of such terms. Any agreement referred to below shall
mean such agreement as amended, supplemented and modified from time to time to
the extent permitted by the applicable provisions thereof and by this Agreement.
"ADJUSTED CASH PURCHASE PRICE" has the meaning specified in Section
2(a) of this Agreement.
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"AFFILIATED GROUP" means any group of corporations with respect to
which a Consolidated Tax Return was, or was required to have been, filed.
"BALANCE SHEET" shall mean the unaudited consolidated balance sheet of
Holding and the Company as of November 30, 1995.
"BALANCE SHEET DATE" shall mean November 30, 1995.
"BEST EFFORTS" shall mean reasonable good faith efforts but shall in
no event require the commencement of litigation against any third party or the
payment of any fees to any third party.
"BUSINESS DAY" shall mean any weekday on which commercial banks in
Minneapolis, Minnesota are open. Any action, notice or right which is to be
exercised or lapses on or by a given date which is not a Business Day may be
taken, given or exercised, and shall not lapse, until the end of the next
Business Day.
"CASH PURCHASE PRICE" has the meaning specified in Section 2(a) of
this Agreement.
"CLOSING" has the meaning specified in Section 10 of this Agreement.
"CLOSING DATE" has the meaning specified in Section 10 of this
Agreement.
"CLOSING DATE BALANCE SHEET" has the meaning specified in Section 2(e)
of this Agreement.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning specified in the second recital of this
Agreement.
"COMPANY COMMON STOCK" has the meaning specified in Section 4(b) of
this Agreement.
"COMPANY PLAN" has the meaning specified in section 4(s) of this
Agreement.
"CONFIDENTIALITY AGREEMENT" shall mean that certain letter agreement
dated as of November 20, 1995 between Holding and Purchaser with respect to,
among other things, the treatment of confidential information regarding the
Company.
"CONSOLIDATED NET WORKING CAPITAL" has the meaning specified in
Section 2(c) of this Agreement.
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"CONSOLIDATED TAX RETURN" means any Tax Return that was, or should
have been, filed on a consolidated, combined or unitary basis for the purpose of
any type of Tax.
"CUSTODIAN" has the meaning specified in Section 3 of this Agreement.
"DETERMINATION" has the meaning specified in Exhibit A-1.
"ENCUMBRANCES" shall mean any lien, security interest, mortgage,
pledge, hypothecation, easement or conditional sale or other title retention
agreement; provided, however, that Encumbrances shall not include any Permitted
Encumbrance.
"ENVIRONMENTAL LAWS" shall mean any federal, state, or local law,
ordinance, regulation, order or permit pertaining to the environment, natural
resources or public health or safety as presently in effect.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ESCROW AGENT" has the meaning specified in Section 2(a) of this
Agreement.
"ESCROW FUND" has the meaning specified in Section 2(a) of this
Agreement.
"ESCROW AGREEMENT" has the meaning specified in Section 2(a) of this
Agreement.
"ESCROW ARRANGEMENT" has the meaning specified in Section 2(a) of this
Agreement.
"FINANCIAL STATEMENTS" shall mean the audited Consolidated Financial
Statements of Holding and the Company as at May 31, 1994 and 1995 and the
related audited Consolidated Statements of Operations, Stockholders' Equity and
Cash Flows of Holding and the Company for the years then ended, and the
accompanying notes thereto, certified by Ernst & Young LLP and the unaudited
consolidated financial statements of Holding and the Company for the month and
year to date ending November 30, 1995.
"HALLAS LITIGATION" has the meaning specified in Section 4(p) of this
Agreement.
"HART-SCOTT-RODINO ACT" has the meaning specified in Section 6(e) of
this Agreement.
"HAZARDOUS MATERIALS" shall mean hazardous wastes as presently defined
by the Resource Conservation and Recovery Act
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of 1976, 42 U.S.C. Section 609 et. seq., as amended, and regulations promulgated
thereunder, hazardous substances as presently defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section9601 et. seq., as amended ("CERCLA" or "Superfund") and regulations
promulgated thereunder and any pollutants, hazardous wastes, substances or
constituents, toxic or dangerous substances, or related materials defined as
such or any other similar designation in, or otherwise subject to regulation
under, Environmental Laws.
"INDEBTEDNESS" has the meaning specified in Section 2(d) of this
Agreement.
"INDEMNIFIED PARTIES" has the meaning specified in Section 11(a) of
this Agreement.
"LEASE SCHEDULE" has the meaning specified in Section 4(j) of this
Agreement.
"LOSSES" has the meaning specified in Section 11(d) of this Agreement.
"MAJORITY SELLERS" has the meaning specified in section 9 of this
Agreement.
"MANAGEMENT SHAREHOLDERS" shall mean the individuals listed on
Schedule 1 hereto.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
business, operations, assets or financial condition of Holding or the Company.
"MATERIAL LEASE" or "MATERIAL LEASES" has the meaning specified in
Section 4(i) of this Agreement.
"MEMPHIS SALE" shall mean the transactions contemplated in connection
with the Asset Purchase Agreement, dated as of August 1, 1995, between Tanner
Peck, LLC and the Company.
"MULTIEMPLOYER PLAN" has the meaning specified in Section 4(s) of this
Agreement.
"NOTICE" has the meaning specified in Section 11(e) of this Agreement.
"PERMITTED ENCUMBRANCE" shall mean: (a) Encumbrances imposed by any
governmental authority for Taxes, assessments or charges not yet due and payable
or which are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of Holding or
the Company in accordance with generally accepted accounting principles; (b)
carriers, warehousemen's, mechanics', material-
4
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men's, repairmen's or other like Encumbrances arising in the ordinary course of
business which are not overdue for a period of more than 30 days or which are
being contested in good faith and by appropriate proceedings, if adequate
reserves with respect thereto are maintained on the books of Holding or the
Company, in accordance with generally accepted accounting principles; (c)
pledges or deposits in connection with worker's compensation, unemployment
insurance and other social security legislation; (d) deposits to secure the
performance of any or all of the following: 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; and (e) easements, rights-of-way, restrictions and
other similar encumbrances on real property incurred in the ordinary course of
business and encroachments (whether or not 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
interfere with the ordinary conduct of the business thereon.
"PONY PANEL SALE" shall mean the transactions contemplated in
connection with the Asset Purchase Agreement, dated as of July 22, 1994, between
The McCarty Company and the Company.
"PURCHASE PRICE" has the meaning specified in Section 2(a) of this
Agreement.
"PURCHASER" has the meaning specified in the first paragraph of this
Agreement.
"SELECTED ACCOUNTING FIRM" has the meaning specified in Section 2(e)
of this Agreement.
"SELLERS" has the meaning specified in the first paragraph of this
Agreement.
"SELLERS' DISTRIBUTION SCHEDULE" has the meaning specified in Section
2(f) of this Agreement.
"SELLERS' REPRESENTATIVE" has the meaning specified in Section 2(e) of
this Agreement.
"SHARES" shall mean 72,747.22 shares of Holding's Class A Common
Stock, $0.01 par value, and 4829.81 shares of Holding's Class B Common Stock,
$0.01 par value.
"SIGN LOCATION LEASE" shall mean any lease, license or other agreement
between the Company and any person pursuant to which the Company has obtained
the right to erect, place and maintain outdoor advertising sign structures on
any ground space, roof or wall space or upon any other improvement to real
estate.
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"STOCK REDEMPTION AGREEMENTS" has the meaning specified in Section
2(d) of this Agreement.
"TAX" or "TAXES" means all taxes, charges, fees, imposts, levies or
other assessments, including, without limitation, all net income, gross income,
franchise, profits, gross receipts, capital, sales, use, ad valorem, value
added, transfer, transfer gains, inventory, capital stock, license, withholding,
payroll, employment, social security, unemployment, excise, severance, stamp,
recording, occupation, real or personal property, and estimated taxes, water,
rent and sewer service charges, customs duties, fees, assessments and charges of
any kind whatsoever, together with any interest and any penalties, fines,
additions to tax or additional amounts thereon, imposed by any taxing authority
(federal, state, local or foreign) and shall include any transferee liability in
respect of Taxes.
"TAX RETURN" means all returns, declarations, reports, estimates,
information returns and statements required to be filed in respect of any Taxes.
"THRESHOLD AMOUNT" has the meaning specified in Section 11(c)(ii) of
this Agreement.
"WARN ACT" shall mean the Workers Adjustment and Retraining
Notification Act of 1988 and any similar state or local plant closing law.
"WARRANTS" shall mean the warrants to purchase Common Stock issued
pursuant to the Warrant Agreement, dated May 22, 1991, between Chase Manhattan
Bank, N.A. and Holding.
"WORKING CAPITAL ESCROW FUND" has the meaning specified in Section
2(a) of this Agreement.
"YOUNGSTOWN SALE" shall mean the transactions contemplated in
connection with the Asset Purchase Agreement, dated as of July 19, 1995, between
FKM Advertising Co., Inc. and the Company.
2. SALE OF SHARES; PURCHASE PRICE.
(a) On the terms and subject to the conditions set forth in this
Agreement, Sellers hereby agree to sell, assign and transfer to Purchaser, and
Purchaser hereby agrees to purchase from Sellers, on the Closing Date, the
Shares. In consideration of the sale of the Shares, Purchaser shall pay to
Sellers on the Closing Date, an aggregate purchase price of $85 million, subject
to increase or decrease as clause (i) below increases or decreases by reason of
subsection (b) below, by wire transfer in U.S. dollars in immediately available
funds, by transferring (i) to a single account specified by Sellers on or prior
to the Closing Date, $82.6 million in cash (the "Cash Purchase Price") plus
(or minus) the adjustment set forth in subsection (b) hereof (as so adjusted,
the "Adjusted Cash Purchase Price"),
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(ii) to a single account specified by Chemical Bank (the "Escrow Agent") prior
to the Closing Date, $2,000,000 in cash (the "Escrow Fund"), pursuant to the
terms of an Escrow Agreement (the "Escrow Agreement") substantially in the form
attached hereto as Exhibit A, with such changes thereto as shall be approved by
the Purchaser and the Sellers' Representative, to be held by the Escrow Agent in
accordance with the terms of the Escrow Agreement and (iii) to a single account
at Chemical Bank, specified by the Sellers' Representative prior to the Closing
Date, $400,000 plus any amounts in excess of $85,000,000 that are, or would
otherwise be, payable pursuant to the terms of this Agreement on the Closing
Date to the Sellers or the holders of any Indebtedness, in cash (the "Working
Capital Escrow Fund," and together with the Cash Purchase Price and the Escrow
Fund, the "Purchase Price") pursuant to the terms of an escrow arrangement (the
"Escrow Arrangement") described in Section 2(f) hereof and Exhibit A-1 hereto.
(b) The Cash Purchase Price shall be adjusted as follows:
(i) The Cash Purchase Price shall be increased or decreased, as
the case may be, by an amount equal to the increase or decrease in the
Consolidated Net Working Capital (as herein defined) determined as of the
Closing Date as compared to the Consolidated Net Working Capital shown on the
Balance Sheet; and
(ii) The Cash Purchase Price shall be decreased by an amount
equal to the Indebtedness (as herein defined) determined as of the Closing Date.
The Purchaser may at Closing pay directly to the holders of
Indebtedness (including amounts payable pursuant to Warrants, Stock Redemption
Agreements and Preferred Stock) any amounts deducted from the Cash Purchase
Price pursuant to Section 2(b)(ii). Any amounts so paid shall be deemed (except
for purposes of calculating Consolidated Net Working Capital) to have been paid
at Closing to the Company or Holding by the Purchaser and simultaneously paid by
the Company or Holding to the holders thereof.
(c) As used herein, the term "Consolidated Net Working Capital" shall
mean, as at any date of determination thereof, (i) the sum of the following
items of Holding and the Company determined on a consolidated basis: (A) cash
and cash equivalents, including escrow for Youngstown Sale, (B) accounts
receivable (less the allowance for bad debts), (C) other receivables, (D)
inventories, and (E) the current portion of prepaid expenses and leases and
other current assets, MINUS (ii) the sum of the following items of Holding and
the Company determined on a consolidated basis (exclusive of the current portion
of long term debt, including the current portion of capitalized lease
obligations, if any, and accrued and unpaid dividends on Holding's issued and
outstanding Preferred Stock): (A) accounts payable, (B) accrued interest and
other accrued expenses, (C) deferred
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income, (D) income taxes payable including accruals for income tax assessments,
(E) deferred gain on Youngstown Sale, (F) current deferred tax liabilities, and
(G) any other current liabilities. All such items shall be determined in
accordance with generally accepted accounting principles applied in a manner
consistent with those used in the preparation of the Balance Sheet and the
Financial Statements, except that, with respect to the Hallas Litigation (as
defined herein), no reserve shall be taken except by reason of an adverse
monetary judgment therein or an agreement or agreement in principle to settle
such litigation. For purposes of this Section 2(e) ONLY, the Balance Sheet
shall be deemed to have been prepared in accordance with generally accepted
accounting principles; PROVIDED, THAT, this sentence shall in no way limit the
Purchaser's right to indemnification pursuant to Section 11 hereof.
(d) As used herein, the term "Indebtedness" shall mean, as at any date
of determination, the sum of the following items of Holding and the Company
determined on a consolidated basis: (i) amounts required to pay obligations
created, issued or incurred for borrowed money, (ii) obligations to pay the
deferred purchase or acquisition price of property or services (other than trade
or accounts payable arising, and accrued expenses incurred, in the ordinary
course of business to the extent reflected as a current liability on the Closing
Balance Sheet), (iii) capital lease obligations, if any, except those set forth
on Schedule 2(d) attached hereto, (iv) the cost to Holding or the Company to
redeem any interest rate protection agreement, (v) amounts which may be owed
pursuant to the Stock Redemption Agreements dated November 29, 1995 between
Holding and William Austin and David Hogue and any other such redemption
agreements which provide for a price protection mechanism in the event of a
subsequent sale of stock (together, the "Stock Redemption Agreements"), (vi) the
Liquidation Value (as defined in Holding's Certificate of Incorporation) of,
plus all accrued and unpaid dividends on, Holding's issued and outstanding
Preferred Stock, (vii) amounts payable to the holders of all Warrants
outstanding at the time of Closing in cancellation thereof, (viii) any amounts
due or owing under the employment contract of Bruce Davies, and (ix) amounts due
or owing to Leonard, Street and Deinard or Furman Selz LLC.
For the purposes of estimating the amount of Indebtedness to be
deducted in the calculation of the Adjusted Cash Purchase Price payable at the
time of the Closing (but not for purposes of the final determination of
Indebtedness pursuant to Section 2(e) (other than the first paragraph thereof)),
amounts invoiced, billed or claimed to be due by any holder of Indebtedness
shall, unless the Purchaser agrees otherwise, be conclusive evidence of the
amount owed to such holder of Indebtedness.
(e) For the purpose of estimating the Consolidated Net Working Capital
and Indebtedness as of the Closing Date, the Company will prepare and deliver to
the Purchaser not less than five (5) calendar days prior to the Closing Date a
detailed
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estimate of the Consolidated Net Working Capital and Indebtedness as of the
Closing Date and the adjustment to the Cash Purchase Price based thereon. At
the Closing, the Purchaser shall pay such Adjusted Cash Purchase Price based
upon such estimate as set forth in Section 2(a) above.
Within thirty (30) Business Days following the Closing Date, the
Purchaser shall prepare and deliver to Sellers and the Sellers shall prepare and
deliver to the Purchaser unaudited consolidated balance sheets of Holding and
the Company (the "Closing Date Balance Sheets"), including a determination of
the actual Consolidated Net Working Capital and Indebtedness as of the Closing
Date and shall specify any increase or decrease to the Adjusted Cash Purchase
Price based upon such actual Consolidated Net Working Capital and Indebtedness
as of the Closing Date.
Within twenty (20) calendar days after the delivery by the Purchaser
and the Sellers (who shall act through the Sellers' Representative as a single
party based upon the position of the Majority Sellers (as hereinafter defined))
of the Closing Date Balance Sheets, which include the Purchaser's and the
Sellers' respective determinations of the actual Consolidated Net Working
Capital and Indebtedness as of the Closing Date, each party will deliver a
detailed statement describing their objections, if any, to the other party's
determination of the actual Consolidated Net Working Capital and Indebtedness as
of the Closing Date. If either party shall fail to raise any such objection
within such twenty (20) day period, the other party's determination of the
actual Consolidated Net Working Capital and Indebtedness as of the Closing Date
shall be final and binding upon the parties hereto. If any such objection is
raised, a representative of the Sellers (the "Sellers' Representative") chosen
at least three (3) business days prior to the Closing Date (and identified to
the Purchaser by the Institutional Sellers promptly thereafter) by the Majority
Sellers (as hereinafter defined) and the Purchaser will use reasonable efforts
to resolve any disputes regarding the determination of the actual Consolidated
Net Working Capital and Indebtedness as of the Closing Date, but if a final
resolution is not obtained within five (5) calendar days after the end of such
twenty (20) day period, any remaining disputes will be resolved by an
independent accounting firm mutually agreeable to the Sellers' Representative
and the Purchaser. If the Sellers' Representative and the Purchaser are unable
to mutually agree upon such an accounting firm within five (5) calendar days
after the end of such five (5) day period, the Chicago office of "big six"
accounting firm will be selected by lot within three (3) calendar days
thereafter after eliminating one firm designated as objectionable by Sellers'
Representative and one firm designated as objectionable by the Purchaser (any
accounting firm so selected or agreed upon shall be referred to herein as the
"Selected Accounting Firm"). The Selected Accounting Firm shall determine the
actual Consolidated Net Working Capital and Indebtedness as of the Closing Date
within twenty (20) calendar days after its selection. The determination of the
actual Consolidated Net
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Working Capital and Indebtedness as of the Closing Date by the Selected
Accounting Firm will be conclusive and binding upon the parties. The Purchaser
shall allow, and shall cause Holding and the Company to allow, the Sellers'
Representative, its attorneys, accountants and agents and the Selected
Accounting Firm complete access to Holding's and the Company's books, records,
computer systems, and personnel during the normal business hours in order to
prepare their draft Closing Date Balance Sheets. The fees and expenses of the
Selected Accounting Firm, if utilized, shall be split equally between the
Sellers and the Purchaser. Within five (5) calendar days of the resolution of
the objections by the Sellers' Representatives and the Purchaser, or of the
determination of the actual Consolidated Net Working Capital and Indebtedness as
of the Closing Date by the Selected Accounting Firm, the Sellers shall repay to
the Purchaser any excess of the estimated Adjusted Cash Purchase Price over the
Adjusted Cash Purchase Price or the Purchaser shall pay to the Sellers any
additional Adjusted Cash Purchase Price over the estimate thereof previously
paid to the Sellers in the manner provided in Section 2(a) hereof. The
liability of the Sellers with respect to the foregoing shall be several and not
joint calculated in accordance with the Sellers' Distribution Schedule (as
defined herein). To the extent possible, any such payment shall be paid out of
the Working Capital Escrow Fund as provided in the following paragraph.
(f) The Working Capital Escrow Fund shall be disbursed as follows:
(i) the Working Capital Escrow Fund shall be distributed to the Purchaser to
repay to the Purchaser any portion of the excess of the estimate of the Adjusted
Cash Purchase Price paid at Closing over the Adjusted Cash Purchase Price as
calculated pursuant to Section 2(e) and (ii) any funds remaining in the Working
Capital Escrow Fund following resolution of actual Consolidated Net Working
Capital and Indebtedness pursuant to Section 2(e) hereof shall be distributed to
the Sellers pro rata in accordance with the distribution schedule prepared by
the Sellers and provided to the Purchaser as promptly as practicable after the
date hereof (the "Sellers' Distribution Schedule"). To the extent that the
Working Capital Escrow Fund is not sufficient to repay to the Purchaser any
portion of the excess of the estimate of the Adjusted Cash Purchase Price paid
at Closing over the Adjusted Cash Purchase Price, the Purchaser may, at its
option, receive a disbursement from the Escrow Fund as provided in the Escrow
Agreement. The Working Capital Escrow Fund shall survive until a final
resolution of and payment, if any, in respect of, the matters contemplated by
Section 2(e) hereof.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS AS TO THEMSELVES. Each
Seller hereby represents and warrants (solely as to itself, himself, or herself)
to Purchaser that, except as set forth in the Schedules attached hereto (it
being understood that the inclusion of an item on a Schedule hereto shall not be
deemed an acknowledgement that such item is material or would be reasonably
likely to result in a Material Adverse Effect and, in addition, and without
limiting the foregoing, each Management
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Shareholder makes the following representations and warranties as to any Shares
held by any custodian of an individual retirement account for the benefit of
such Management Shareholder or his or her spouse (a "Custodian") as if such
shares were held directly by such Management Shareholder:
(a) ORGANIZATION AND AUTHORITY OF EACH SELLER. Each of Wind Point and
Marquette is a limited partnership duly organized under the laws of the State of
Delaware. Chemical is a limited partnership duly organized under the laws of
the State of California. Each of Wind Point, Marquette and Chemical has full
authority to own the Shares owned by it and to sell such Shares to the Purchaser
pursuant to this Agreement and otherwise perform its obligations under the
Escrow Agreement and hereunder, and such delivery will convey to the Purchaser
good and marketable title to such Shares free and clear of all liens, claims,
restrictions, limitations, security interests and encumbrances of any kind.
Banc One is a corporation duly organized, validly existing and in good standing
under the laws of the State of Wisconsin and has full corporate power and
authority to own the Shares owned by it and to sell such Shares to the Purchaser
pursuant to this Agreement and otherwise perform its obligations under the
Escrow Agreement and hereunder, and such delivery will convey to the Purchaser
good and marketable title to such Shares free and clear of all liens, claims,
restrictions, limitations, security interests and encumbrances of any kind.
Each of the Management Shareholders has full authority to own the Shares owned
by him and to sell such Shares to the Purchaser pursuant to this Agreement and
otherwise perform his obligations under the Escrow Agreement and hereunder, and
such delivery will convey to the Purchaser good and marketable title to such
Shares free and clear of all liens, claims, restrictions, limitations, security
interests and encumbrances of any kind.
(b) DUE EXECUTION AND ABSENCE OF BREACH. This Agreement and the
Escrow Agreement have been duly authorized by all necessary action, executed and
delivered by such Seller and constitute the valid and legally binding obligation
of such Seller, enforceable against such Seller in accordance with their terms.
Except as set forth in Schedule 4(o), the execution, delivery and performance by
such Seller of this Agreement and the Escrow Agreement and the transactions
contemplated hereby and thereby will not: (i) violate or conflict with any
provision of the Certificate of Incorporation, Bylaws, Agreement or Articles or
Certificate of Limited Partnership or similar organizational document of such
Seller; (ii) result in the breach of, or constitute a default (with or without
notice or lapse of time, or both) under, any provision of (a) any debt
instrument, indenture, mortgage agreement or other instrument or arrangement to
which such Seller is a party or by which any of the Shares owned by such Seller
is bound or (b) any judgment, order or decree by which such Seller is bound or
by which any of the Shares owned by such Seller is bound or affected, or (iii)
result in the imposition of any lien or security interest in any of the Shares
owned
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<PAGE>
by such Seller (c) or impair such Seller's ability to perform its or his
obligations under this Agreement and the Escrow Agreement.
(c) GOOD TITLE TO THE SHARES. Such Seller is and as of the Closing
Date will be the lawful owner of that number of Shares set forth next to its,
his or her name on Schedule 3(c) hereto and such Seller has and as of the
Closing Date will have good title thereto, free and clear of all liens, claims,
restrictions, limitations, security interests and encumbrances of any kind.
Except for this Agreement, there are no outstanding warrants, options, rights or
agreements of any kind to acquire from such Seller any Shares owned by such
Seller. All of such Shares are fully paid and nonassessable.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLERS AS TO HOLDING AND THE
COMPANY. In order to induce the Purchaser to enter into this Agreement and to
consummate the transactions contemplated herein, the Sellers represent and
warrant to the Purchaser that, except as set forth in the Schedules attached
hereto (it being understood that the inclusion of any item on a Schedule hereto
shall not be deemed an acknowledgement that such item is material or would be
reasonably likely to result in a Material Adverse Effect):
(a) ORGANIZATION AND GOOD STANDING. Each of the Company and Holding
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has full corporate power and authority to
own, lease and operate its properties and carry on its business as it is now
being conducted. Each of the Company and Holding is duly qualified as a foreign
corporation and is in good standing under the laws of (i) each jurisdiction in
which it owns, leases and operates real property and (ii) each other
jurisdiction in which the conduct of its business or the ownership of its assets
requires such qualification and where a failure to be so qualified would have a
Material Adverse Effect. The copies of the Company's and Holding's Certificate
of Incorporation and By-Laws (together with all amendments thereto) which have
been previously delivered or made available to Purchaser are correct and
complete. Holding has conducted no business other than the ownership of the
Company Common Stock (as defined herein).
(b) CAPITALIZATION. The authorized capital stock of Holding consists
of (i) 200,000 shares of Class A Common Stock, par value $.01 per share, of
which 72,747.22 shares are outstanding, (ii) 25,000 shares of Class B Common
Stock, par value $.01 per share, of which 4,829.81 shares are outstanding, and
(iii) 1,000 shares of Preferred Stock, par value $0.10 per share (the "Preferred
Stock"), of which 1,000 shares are outstanding as of the date hereof. As of the
Closing Date, (i) each of the shares of Preferred Stock issued and outstanding
as of the date hereof shall have been redeemed or canceled pursuant to the terms
thereof, and all accrued and unpaid dividends on such shares of Preferred Stock
shall have been paid, otherwise satisfied or canceled, and (ii) each of the
Warrants issued and outstanding as
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of the date hereof shall have been exercised, redeemed, canceled or otherwise
terminated. The Preferred Stock may be redeemed at any time at the option of
Holding for an amount equal to the Liquidation Value of the Preferred Stock (as
defined in Holding's Certificate of Incorporation) plus all accrued and unpaid
dividends on the Preferred Stock. The Sellers have previously delivered copies
to or made available true and correct copies of any agreements in respect of the
Preferred Stock, the Warrants or any redemption agreement containing a price
protection mechanism in the case of a subsequent sale of stock. The authorized
capital stock of the Company consists of 1,000 shares of common stock, par value
$0.01 per share (the "Company Common Stock"), of which 1,000 shares are
outstanding. All of the outstanding shares of the Company and Holding have been
validly issued and are fully paid and non-assessable and have not been issued in
violation of any preemptive rights. All of the issued and outstanding shares of
capital stock of the Company are owned beneficially and of record by Holding,
and Holding has and as of the Closing Date will have good title thereto, free
and clear of all liens, claims, restrictions, limitations, security interests
and encumbrances of any kind. Holding has acquired and retired 9,084.65 shares
of its previously issued Class A Common Stock and 12,314.52 shares of its
previously issued Class B Common Stock. Except as shown on Schedule 4(b)
hereto, there is no existing option, warrant, call, commitment or other security
or agreement of any kind to which Sellers, the Company or Holding is a party
requiring, and there are no convertible securities of Sellers, the Company or
Holding outstanding which upon conversion would require, the issuance of any
additional shares of capital stock of the Company or Holding or other securities
convertible into shares of capital stock or any debt or equity security of the
Company or Holding of any kind.
(c) SUBSIDIARIES. The Company is Holding's sole subsidiary. The
Company has no subsidiaries. Neither Holding nor the Company has ever held any
interest in a partnership.
(d) FINANCIAL STATEMENTS. Sellers have delivered to Purchaser copies
of the Financial Statements. Each of the Financial Statements is in accordance
with the books and records of the Company and Holding as of the dates and for
the periods indicated, has been prepared in accordance with generally accepted
accounting principles and in conformity with the practices consistently applied
by the Company and Holding in the immediately preceding fiscal periods, and,
with respect to the unaudited interim financial statements, subject to normal
year-end audit adjustments and the absence of footnotes, presents fairly in all
material respects the financial position, results of operations and cash flows
of the Company and Holding as at the dates and for the periods indicated.
(e) NO UNDISCLOSED LIABILITIES. To the knowledge of the Sellers,
neither the Company nor Holding had, as at the Balance Sheet Date, any
indebtedness or liabilities (whether accrued, absolute, contingent or otherwise,
and whether due or to
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become due, nor have any facts arisen or occurred which could form a basis
therefor) which is not shown on the Balance Sheet, the notes to the Financial
Statements or disclosed on Schedule 3(e) hereto, except for those in the
aggregate which are not reasonably likely to have a Material Adverse Effect.
Except as set forth in the Balance Sheet, neither the Company nor Holding has
outstanding on the date hereof any material indebtedness or liability other than
those incurred since the Balance Sheet Date in the ordinary course of business
or disclosed on Schedule 3(e) hereto. Except as set forth in Schedule 4(e), to
the knowledge of the Sellers, there is no breach or alleged breach of any
covenant or agreement or any misrepresentation contained in any of the
agreements relating to the Memphis Sale, the Youngstown Sale or the Pony Panel
Sale.
(f) NO MATERIAL ADVERSE CHANGE; BUSINESS CONDUCTED IN THE ORDINARY
COURSE; NO DIVIDENDS. Since the Balance Sheet Date there has been no, and no
event has occurred which may reasonably be expected to result in a, material
adverse change in the business, operations, assets or financial condition of the
Company or Holding, taken individually or as a whole. Since the Balance Sheet
Date (i) the Company and Holding have conducted their business in the ordinary
course, consistent with past practice and, except as disclosed on Schedule 4(f),
have taken no actions of the type described in the second sentence of Section
6(c) hereof, and (ii) no dividends or distributions have been declared or paid
on or made with respect to the shares of capital stock or other equity interests
of the Company or Holding nor have any such shares been repurchased or redeemed,
other than dividends or distributions paid to Holding.
(g) TAXES. Except as set forth on Schedule 4(g) hereto, (A) all Tax
Returns required to be filed by or on behalf of the Company or Holding or any
Affiliated Group of which the Company or Holding is or was a member (other than
those in respect of which the liability for Taxes would not exceed $10,000 in
the aggregate) (i) are true, accurate and complete in all material respects, and
(ii) have been timely filed with the appropriate taxing authorities in all
jurisdictions in which such Tax Returns are required to be filed; and all
amounts of Taxes whether or not so shown on such Tax Returns (including interest
and penalties), due from the Company or Holding either directly, as part of a
Consolidated Tax Return, or otherwise, have been fully and timely paid or are
adequately provided for on the Balance Sheet; and (B) no waivers of statutes of
limitation have been given or requested with respect to the Company or Holding
in connection with any Taxes or Tax Returns with respect to the Company or
Holding. Neither Holding nor the Company has been a member of any Affiliated
Group other than the Affiliated Group of which Holding is the common parent
corporation. Except as set forth on Schedule 4(g) hereto, all deficiencies
asserted or assessments made with respect to Taxes or Tax Returns of the Company
or Holding have been fully paid, and there are no unpaid deficiencies asserted
or assessments made by any taxing authority against the Company or Holding.
There is no Indebtedness of the
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Company or Holding owed to or held by any Seller (other than amounts due or
owing under the employment contract of Bruce Davies). Neither Holding nor the
Company is subject to liability for Taxes of any other person, including,
without limitation, liability arising from the application of U.S. Treasury
Regulation Section 1.1502-6 or any analogous provision of the Tax law. There
are no tax sharing agreements between the Company and/or Holding and any other
party.
(h) PATENTS, TRADEMARKS AND COPYRIGHTS. Schedule 4(h) hereto contains
a complete and correct list of each material patent, trademark, trade name,
service mark and copyright owned or used by the Company or Holding and pending
applications therefor, and each license or other agreement relating thereto.
Except as set forth on Schedule 4(h) or Schedule 4(n) hereto, each of the
foregoing is owned by the party shown on such Schedule as owning the same, free
and clear of all Encumbrances. To the best of Seller's knowledge, there have
been no claims asserted in writing, which are still pending, or otherwise
threatened, that any of the foregoing is invalid or conflicts with the asserted
rights of others, or otherwise challenging Holding's or the Company's ownership
or use thereof, which would reasonably be likely to result in a Material Adverse
Effect. The Company and Holding possess all patents, patent licenses, trade
names, trademarks, service marks, brand marks, brand names, copyrights, know-
how, formulas and other proprietary and trade rights necessary for the conduct
of their respective business as now conducted, except for those the absence of
which would not be reasonably likely to result in a Material Adverse Effect.
The use by Holding or the Company of such rights in the conduct of its
respective business as now conducted does not violate the rights of any third
party, except for such violations as would not have a Material Adverse Effect.
(i) REAL PROPERTY; LEASES OF REAL PROPERTY. Except as set forth on
Schedule 4(i) hereto, neither the Company nor Holding owns any real property.
Except for Sign Location Leases, Schedule 4(i) hereto contains a complete and
correct list in all material respects of all leases, subleases, license
agreements or other rights of possession or occupancy of real property to which
the Company or Holding is a party (as tenant, occupier or possessor) pursuant to
which the current net annual rent payable by the Company or Holding currently
exceeds $50,000 (each such lease or agreement, a "Material Lease" and
collectively the "Material Leases"). All of the Material Leases are in full
force and effect. Complete and correct copies of each Material Lease have been
furnished or made available to Purchaser. Except as disclosed on Schedule 4(i)
or Schedule 4(p), to the knowledge of any of the Seller, Holding and the
Company, no condemnation or eminent domain proceeding against any of the owned
real property or any leases is pending or threatened (it being agreed that for
purposes of this sentence any party shall be deemed to have knowledge of any
proceeding with respect to which it has been personally served (including by
mail) with process or notice of a proceeding). Except as disclosed on Schedule
4(i) hereto, no
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consent is required of any landlord or other third party to any Material Lease
to consummate the transactions contemplated hereby, and upon consummation of the
transactions contemplated hereby, each Material Lease will continue to entitle
the Company or Holding, as the case may be, to the use and possession of the
real property specified in such Material Leases and for the purposes for which
such real property is now being used by the Company or Holding, respectively.
Except as set forth in such Schedule, neither the Company nor Holding is in
default beyond any applicable notice or grace period or has received written
notice of default still outstanding on the date hereof under any such Material
Lease, and to the best of Seller's knowledge, there exists no uncured default
thereunder by any third party, except for such third party defaults or notices
of default which in either case, individually or in the aggregate, would not be
reasonably likely to result in a Material Adverse Effect.
(j) SIGN LOCATION LEASES. Sellers have delivered to Purchaser a
schedule of Sign Location Leases (the "Lease Schedule") for each of the Twin
City and the Jacksonville Markets. The description of the terms of each Sign
Location Lease on each Lease Schedule is correct, except for such minor
irregularities, errors or omissions which would not be reasonably likely to
result in a Material Adverse Effect.
(k) PERMITS; COMPLIANCE WITH LAWS. The Company and Holding have all
necessary permits, licenses and governmental authorizations required for the
ownership or occupancy of their respective properties and assets and the
carrying on of their respective business, except where the failure to have any
such permit, license or governmental authorization would not be reasonably
likely to result in a Material Adverse Effect. Except as set forth on Schedule
4(k), Holding and the Company are not in violation of, or, to Seller's
knowledge, are under investigation with respect to or have been threatened to be
charged with or given notice that the continued operation of any assets does or
will violate, any applicable laws, ordinances, rules and regulations of any
federal, state, local or foreign governmental authority (it being agreed that
"legal non-conforming" signs shall not be in violation of this sentence because
they are "legal non-conforming") except for such violations which, individually
or in the aggregate, would not be reasonably likely to result in a Material
Adverse Effect; provided, that, in determining whether the loss of any sign or
signs would be reasonably likely to result in a Material Adverse Effect, any
rights arising therefrom to obtain or erect replacement signs shall be taken
into account.
(l) INSURANCE. Schedule 4(l) hereto contains a materially complete
and correct list of all policies of insurance and fidelity bonds (including
their respective expiration dates) of any kind or nature covering the Company or
Holding, including, without limitation, policies of life, fire, theft, employee
fidelity and other casualty and liability insurance, and such policies are in
full force and effect. Except as set forth on
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Schedule 4(l), there is no claim pending nor has there been a claim made since
January 1, 1994 under any of such policies or bonds as to which coverage has
been questioned, denied or disputed by the underwriters of such policies or
bonds or in respect of which such underwriters have reserved their rights.
Sellers, Holding and the Company, to Sellers' knowledge, have complied with the
terms and conditions of all such policies and bonds. Such policies will remain
in effect immediately following Closing. All workers compensation insurance is
in full force and effect and no notice of any cancellation with respect to such
insurance has been received. Complete and correct copies of each such policy
have been furnished or made available to Purchaser.
(m) MATERIAL CONTRACTS. Except as listed in Schedule 4(m) hereto or
any other Schedule hereto, neither the Company nor Holding is a party to any (i)
material contract or any other contract involving aggregate annual payments in
excess of $100,000 (a) paid to the Company (excluding advertising contracts) or
(b) paid by the Company that is not terminable by the Company at will or upon
three (3) months or less notice, without payment of any penalty or fee; (ii)
contract for the employment of any officer or employee; (iii) contract for the
future purchase of materials, supplies, services, merchandise or equipment not
capable of being fully performed or not terminable without penalty or payment
within a period of one year from the date hereof or in excess of normal
operating requirements; (iv) agreement for the sale or lease of any of its
assets other than in the ordinary course of business; (v) each contract or
commitment for capital expenditures in excess of $100,000; (vi) lease of
machinery or equipment involving annual payments in excess of $100,000, either
existing or pending; (vii) loan agreement, promissory note issued by it,
guarantee, subordination or similar type of agreement; (viii) stock option,
retirement, severance, pension, bonus, profit sharing, group insurance, medical
or other benefit plan, policy or program providing employee benefits; (ix)
consulting agreement; (x) municipal or other governmental franchise agreements;
(xi) agreement with a labor union or labor association; (xii) agreement (other
than any agreement entered into in the ordinary course of business consistent
with past practice) providing for indemnification of any other parties; or
(xiii) agreement restricting Holding's or the Company's ability to conduct
business generally (or any type of business) in any location. Complete and
correct copies of each such agreement have been furnished or made available to
Purchaser. Except as set forth in Schedule 4(m) hereto, the Company and Holding
have performed all of the obligations required to be performed by them to date
and are not in default under any of the agreements, leases, contracts or other
documents to which they are a party listed on Schedule 4(m) or Schedule 4(p),
other than for those failures to perform and defaults which, individually or in
the aggregate, would not be reasonably likely to result in a Material Adverse
Effect; all of such agreements, leases, contracts or other documents are valid,
binding and in full force and effect except for such failures to be so valid,
binding and in full force and effect which, in the aggregate, would not be
reasonably
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likely to result in a Material Adverse Effect. The Company and Holding have
fully performed each of their obligations under and are in compliance with the
provisions of (i) the Settlement Agreement, dated as of March 22, 1995, among
the City of Jacksonville, Capsigns, Inc., the Company, Sam E. Newey and Les
Loggins Advertising & Public Relations, Inc., (ii) the Settlement Agreement and
Release regarding John H. Keltgen vs. the Company, and (iii) the Supplemental
Agreement, dated as of March 21, 1995, between Capsigns, Inc. and the Company,
except for failures to perform or be in compliance with such agreements which
neither (X) would have a Material Adverse Effect nor (Y) gives any party other
than the Company the right to accelerate the obligation of the Company to remove
signs. Except as set forth in Schedule 4(m) hereto, to the best of Seller's
knowledge, no party with whom the Company or Holding has such a scheduled
agreement is in default thereunder, which default, individually or in the
aggregate, would be reasonably likely to result in a Material Adverse Effect.
Except as disclosed herein or in Schedule 4(m) or Schedule 4(p) hereto, neither
the Company nor Holding is a party to any non-compete or similar agreement which
restricts in any material way the current operation of their businesses taken as
a whole.
(n) TITLE TO PROPERTIES; ABSENCE OF ENCUMBRANCES. The Company and
Holding have good and marketable title to all of their respective properties and
assets shown as owned on the Balance Sheet and as acquired since the Balance
Sheet Date (except for assets disposed of since the Balance Sheet Date
(including signs as listed on Schedule 4(n))), free and clear of any and all
Encumbrances, except as set forth in Schedule 4(n) hereto or except for
Permitted Encumbrances.
(o) RESTRICTIONS. Except as set forth in Schedule 4(n) or 4(o)
hereto, neither the execution or delivery of this Agreement or the Escrow
Agreement nor the consummation of the transactions contemplated hereby or
thereby, will (after the giving of notice, the passage of time, or both) (i)
conflict with or result in a breach of, or give rise to a right of termination
of, or accelerate the performance required by, any terms of any agreement to
which the Company or Holding is a party, or constitute a default thereunder, or
result in the creation of any Encumbrance upon any of their respective assets,
except for such conflicts, breaches, rights of termination or acceleration,
defaults and Encumbrances that in the aggregate, would not be reasonably likely
to result in a Material Adverse Effect, (ii) violate any of the provisions of
their respective Certificates of Incorporation or By-Laws or (iii) violate any
judgment, decree, law, rule, ordinance or regulation by which they are subject
to or bound other than violations of provisions in local ordinances (not of
state-wide application) prohibiting, or requiring approval of, a change of
control of the Company.
(p) LITIGATION; CONSENTS. Except as disclosed in Schedule 4(p)
hereto, there is no action, suit, proceeding or formal governmental inquiry or
investigation pending against the
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Company or Holding which seeks to restrain or prohibit or otherwise challenges
the consummation, legality or validity of the transactions contemplated hereby
or by the Escrow Agreement. Except as disclosed in Schedule 4(p) hereto, there
is no action, charge, claim, suit, proceeding or formal governmental inquiry or
investigation pending or, to Sellers' knowledge, threatened against the Company
or Holding which is reasonably likely to result in a Material Adverse Effect.
Except as set forth in Section 6(e) hereof or in Schedule 4(i) or Schedule 4(p)
hereto, and except with respect to local governmental permits or licenses, no
consent, filing, approval or authorization of any governmental authority on the
part of the Company or Holding (or, by reason of facts pertaining to Sellers,
Holding or the Company, on the part of either the Purchaser or any affiliate
thereof (except for such as required by reason of facts pertaining specifically
to the Purchaser) is required in connection with the execution and delivery of
this Agreement or the Escrow Agreement or the consummation of any of the
transactions contemplated hereby or thereby. Holding and the Company have
adequate existing insurance coverage, except as to deductibles, if any, to pay
any liability, (except as to punitive damages), costs and expenses (including
reasonable attorney's fees except in the event punitive damages were awarded) of
Holding and the Company, including in connection with that certain lawsuit filed
pursuant to a complaint in the District Court of Hennepin County, Fourth
Judicial District, State of Minnesota by David Hallas captioned HALLAS V.
NAEGELE, ET AL (the "Hallas Litigation").
(q) ENVIRONMENTAL MATTERS. Except as disclosed in Schedule 4(q)
hereto, to Sellers' knowledge (i) the operations of the Company and Holding are
in compliance with applicable Environmental Laws, except for such noncompliance
which is not reasonably likely to result in a Material Adverse Effect, (ii)
neither the Company nor Holding is subject to any judicial or administrative
proceeding alleging the violation of any Environmental Law or regarding any
Hazardous Materials on any real property owned or leased by the Company or
Holding (which, in the case of real property leased by the Company or Holding
for the sole purpose of having a sign thereon, arises from the Company's
activities or from the sign, including its construction or maintenance), which
proceeding is reasonably likely to result in a Material Adverse Effect, (iii)
neither the Company nor Holding has received any written notice from any
governmental authority that it is a potentially responsible party at any
Superfund site; and (iv) neither the Company nor Holding has caused or permitted
its operations (X) to be used to generate, manufacture, transport, treat, store,
handle, dispose or process Hazardous Materials or other dangerous or toxic
substances, or solid wastes except in compliance with Environmental Laws, or (Y)
to release, spill, leak, emit, discharge, dispose or dump any Hazardous Material
that has gone onto or offsite of any real property owned or leased by the
Company or Holding, in any quantity which is reasonably likely to result in a
Material Adverse Effect and (v) the Company and Holding have no knowledge that
any person or entity has in the past utilized any real property owned or leased
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by the Company or Holding in a manner which has created any Hazardous Material
on or offsite of such property.
(r) LABOR AGREEMENTS. (i) Except as set forth in Schedule 4(r),
Schedule 4(m) or Schedule 4(s) hereto, neither the Company or Holding is a party
to any labor or collective bargaining agreement and there are no labor or
collective bargaining agreements which pertain to employees of the Company or
Holding.
(ii) Except as set forth in Schedule 4(r) hereto, there are
no pending or, to Sellers' knowledge, threatened strikes, work stoppages,
slowdowns, lockouts, grievances, arbitrations or other labor disputes against
the Company or Holding which individually would be reasonably likely to result
in a Material Adverse Effect.
(iii) Except as set forth in Schedules 4(p) or 4(r) hereto,
there are no pending or, to Sellers' knowledge, threatened complaints, charges
or claims against the Company or Holding filed with any public or governmental
authority, arbitrator or court based upon the employment or termination of
employment by the Company or Holding of any individual, except for those which
would not be reasonably likely to result in a Material Adverse Effect.
(iv) Except as set forth in Schedules 4(p) or 4(r) hereto,
the Company and Holding (X) are in compliance with all laws, regulations and
orders relating to the employment of labor, including all such laws, regulations
and orders relating to wages, hours, WARN Act, collective bargaining,
discrimination, civil rights, safety and health, workers' compensation and the
collection and payment of withholding and/or social security taxes and any
similar tax, except for such non-compliance as would not be reasonably likely to
result in a Material Adverse Effect and (Y) are not and have not been for the
past two (2) years engaged in any unfair labor practice.
(v) Except as set forth in Schedule 4(r) hereto, none of
Holding or the Company has any written personnel policy applicable to employees.
(vi) Except as set forth in Schedule 4(r) hereto, with
respect to employees in Minneapolis or Jacksonville, no union organization
campaign is presently in progress or has occurred in the past three (3) years
and no representation question exists with respect to the employees of Holding
or the Company.
(s) ERISA. (i) Schedule 4(s) hereto sets forth all material stock
purchase, stock option, deferred compensation, incentive compensation, severance
or termination pay plans, agreements and arrangements and all "employee benefit
plans", as defined in Section 3(3) of ERISA, sponsored or maintained by the
Company or Holding or to which the Company or Holding contributed or are
obligated to contribute thereunder for current or former
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employees of the Company or Holding (the "Company Plans"). Schedule 4(s) hereto
separately identifies each Company Plan which is a multiemployer plan, as
defined in Section 3(37) of ERISA ("Multiemployer Plan").
(ii) True, correct and complete copies of the following
documents, with respect to each of the Company Plans (other than the
Multiemployer Plans), have been made available or delivered to Purchaser by
Sellers, (i) any plans and related trust documents, and amendments thereto; (ii)
the most recent Forms 5500; (ii) the last Internal Revenue Service determination
letter, if applicable; and (iv) summary plan descriptions.
(iii) The Company Plans intended to qualify under Section 401
of the Code and the trusts maintained pursuant thereto are exempt from federal
income taxation under Section 501 of the Code, and nothing has occurred with
respect to the operation of the Company Plans which could cause the loss of such
qualification or exemption or the imposition of any liability, penalty or tax
under ERISA or the Code which is reasonably likely to result in a Material
Adverse Effect.
(iv) The Company Plans have been maintained in accordance
with their terms and with all provisions of the Code and ERISA (including rules
and regulations thereunder) and other applicable federal and state laws and
regulations, except where the failure to so maintain would not be reasonably
likely to result in a Material Adverse Effect.
(v) Except for (i) the Stock Redemption Agreements with
Hogue and Austin and (ii) the employment agreement with Bruce Davies referred to
in clause (viii) of Section 2(d) hereof, no plan or employment arrangement
exists that could result in the payment by the Company or Holding to any
current, former, or future director or employee of Holding or the Company of any
money or other property rights or accelerate or provide any other rights or
benefits to any such employee or director as a result of transactions
contemplated by this Agreement, whether or not such payment, acceleration, or
provision would constitute a "parachute payment" (within the meaning of Section
280G of the Code) or whether or not some other subsequent action or event would
be required to cause such payment, acceleration or provision to be triggered.
(t) AFFILIATE TRANSACTIONS. Schedule 4(t) sets forth all contracts,
agreements and arrangements in effect on or after January 1, 1995 between
Holding and the Company, on the one hand, and Sellers or any affiliate of
Sellers (excluding Holding and the Company), on the other. All such contracts
have been entered into on an arms-length basis and are commercially reasonable.
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5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to Sellers as follows:
(a) ORGANIZATION AND GOOD STANDING. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Illinois, and has full corporate power and authority to own its properties and
carry on its business as it is now being conducted.
(b) RESTRICTIONS. The execution and delivery of this Agreement and
the Escrow Agreement and the consummation of the transactions contemplated
hereby and thereby will not conflict with or result in a breach of any terms of
any agreement to which Purchaser is a party, except for such conflicts and
breaches that in the aggregate would not have a material adverse effect on the
Purchaser's ability to consummate the transactions contemplated by this
Agreement, nor will it violate any of the provisions of Purchaser's Certificate
of Incorporation or By-Laws.
(c) LITIGATION; CONSENTS. There is no action, suit, proceeding or
formal governmental inquiry or investigation pending against Purchaser which
seeks to restrain or prohibit or otherwise challenges the consummation, legality
or validity of the transactions contemplated hereby or by the Escrow Agreement,
and, except as set forth in Schedule 5(c) hereto and Section 7(c) hereof, no
consent, approval or authorization of any governmental authority on the part of
Purchaser is required in connection with the execution and delivery of this
Agreement or the Escrow Agreement or the consummation of any of the transactions
contemplated hereby or thereby.
(d) EXECUTION AND EFFECT OF AGREEMENT. Purchaser has the corporate
power and authority to enter into this Agreement and the Escrow Agreement, and
the execution and delivery of this Agreement and the Escrow Agreement and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of Purchaser. This
Agreement and the Escrow Agreement have been duly executed and delivered by
Purchaser and constitute the legal, valid and binding obligation of Purchaser,
enforceable against it in accordance with their terms.
(e) INVESTMENT REPRESENTATION. Purchaser possesses such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of its investment hereunder. Purchaser is acquiring the
Shares for its own account, for investment purposes only and not with a view to
the distribution thereof. Purchaser is an "accredited investor" as defined in
Regulation D under the Securities Act of 1933, as amended.
(f) SOURCES OF INFORMATION. Purchaser acknowledges that it has
conducted its own investigation of the business and affairs of the Company and
Holding; that the Shares have not been
22
<PAGE>
registered under the Securities Act of 1933 as amended, or any state securities
or "Blue Sky" laws.
(g) FINANCING. Purchaser has, or has access to, sufficient funds and
financing to pay the Purchase Price on the Closing Date.
6. COVENANTS OF SELLERS. Sellers hereby covenant and agree that:
(a) ACCESS TO DOCUMENTS; OPPORTUNITY TO ASK QUESTIONS. From and after
the date hereof and until the Closing Date, Sellers shall cause the Company and
Holding to give reasonable access to offices and other facilities and properties
of Holding and the Company and to make available for inspection by Purchaser or
its representatives, upon reasonable advance notice and during normal business
hours, the Company's and Holding's corporate or comparable records, books of
account, contracts and all other documents reasonably requested by Purchaser,
its managerial employees, counsel and auditors in order to permit Purchaser and
such representatives to make reasonable inspection and examination of the
business and affairs of the Company and Holding, including, but not limited to,
a review of the estimation of Consolidated Net Working Capital and Indebtedness
contemplated by the first paragraph of Section 2(e) hereof. Sellers shall
further cause the managerial employees, counsel and regular independent
certified public accountants of the Company and Holding to be available upon
reasonable advance notice to answer questions of Purchaser's representatives
concerning the business and affairs of the Company and Holding and shall further
cause them to make available all relevant books and records in connection with
such inspection and examination.
(b) MAINTENANCE OF INSURANCE. From and after the date hereof and
until the Closing Date, Sellers shall cause the Company and Holding to use their
Best Efforts to maintain in full force and effect all of their presently
existing insurance coverage or insurance comparable to such existing coverage.
(c) CONDUCT OF BUSINESS. From and after the date hereof and until the
Closing Date, Sellers shall cause the business of the Company and Holding to be
conducted in the ordinary course, consistent with past practice. During such
period of time, except upon the prior written consent of Purchaser, Sellers
shall not permit the Company or Holding to: (a) amend its Certificate of
Incorporation or By-Laws or comparable organizational documents, (b) issue any
additional shares of capital stock or securities convertible into capital stock
or issue, sell or grant any option or right to acquire or otherwise dispose of
or commit to dispose of any of its authorized but unissued capital stock or
other corporate securities or securities convertible into capital stock, (c)
declare or pay any dividends or make any other distribution in cash or property
on its capital stock or other equity interests, except to Holding (d) except as
contemplated by this Agreement, repurchase or
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redeem any shares of its stock or other equity interests, (e) voluntarily incur
any obligation or liability, except current obligations and except liabilities
incurred in the ordinary course of business, (f) enter into any employment
agreement or become liable for any bonus, profit-sharing or incentive payment to
any of its employees, officers or directors, except pursuant to presently
existing plans, arrangements or agreements disclosed herein or in a schedule
hereto, (g) mortgage, pledge, or otherwise encumber any part of its assets,
tangible or intangible, except Permitted Encumbrances or liens arising under the
Company's loan agreement with Chase Manhattan Bank, (h) sell, transfer, dispose
of or acquire any (1) signs (other than as a result of completing work-in-
progress) and (2) other properties or assets, tangible or intangible, other
than, in the case of clause (2), in the ordinary course of business consistent
with past practice, (i) make any material changes in its customary method of
operations, including marketing and pricing policies and maintenance of business
premises, fixtures, furniture and equipment and its accounting policies, (j)
except for Sign Location Leases, modify, amend or cancel any of its existing
leases or enter into any contracts, agreements, leases or understandings, other
than in the ordinary course of business, (k) enter into any collective
bargaining agreement, (l) merge or consolidate with any corporation, acquire
control or acquire any capital stock or other securities of any other
corporation or business entity, or take any steps incident to or in furtherance
of any such actions whether by entering into an agreement providing therefor or
otherwise, (m)(1) pay, discharge or otherwise satisfy any claim, liability or
obligation (including to Sellers) except in the ordinary course of business and
consistent with past practice, or (2) pay or otherwise satisfy any Indebtedness
(including Indebtedness owing to Sellers or any affiliate of Sellers (except as
contemplated by Section 6(f) hereof), but excluding any payments under the loan
agreement with Chase Manhattan Bank or any payments made to the holders of the
Preferred Stock, the Warrants or the Stock Redemption Agreements), (n) make any
Tax election or settle or compromise any income tax liability or file any
federal income tax return prior to the last day (including extensions)
prescribed by law (except for the federal income tax payment made on or about
February 15, 1996), in the case of any of the foregoing, material to the
business, financial condition or results of operations of Holding or the
Company, (o) enter into any transaction, arrangement or agreement with any
affiliate (other than those in existence on the date hereof), (p) factor or sell
any accounts receivable of the Company, (q) extend the average life of accounts
payable beyond the average life in effect at the Balance Sheet Date, (r) enter
into any agreement to do any of the foregoing (except with respect to any
arrangement with Chase Manhattan Bank in respect of the Warrants, to the extent
such arrangement will be fully reflected on the Closing Balance Sheet to the
extent not paid at or prior to Closing), or (s) take any other action which
would cause any of the representations and warranties made by Sellers in this
Agreement not to be true and correct in all material respects on and as of the
Closing Date
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<PAGE>
with the same force and effect as if such representations and warranties had
been made on and as of the Closing Date.
(d) CONSENTS; CONDITIONS PRECEDENT. From and after the date hereof
and until the Closing Date, Sellers shall cause the Company and Holding to use
their Best Efforts to obtain the consents of those parties indicated on Schedule
4(i), 4(p) and 5(c) in connection with the transactions contemplated hereby and
to cause the Company and Holding to use their Best Efforts to cause the
conditions precedent to the consummation of the transactions contemplated hereby
to be satisfied.
(e) HART-SCOTT-RODINO FILINGS. Sellers shall, and shall cause the
Company and Holding to, make all required filings as promptly as possible with
the Federal Trade Commission and the U.S. Department of Justice-Antitrust
Division pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(the "Hart-Scott-Rodino Act"), and shall, and shall cause the Company and
Holding to, cooperate with Purchaser in connection with such filings.
(f) DISCHARGE OF INDEBTEDNESS. Subject to Section 6(c) hereof, during
the period between the date hereof and the Closing Date, the Company and/or
Holding may incur Indebtedness from Sellers and pay Indebtedness owing to
Sellers and interest thereon. On the Closing Date and prior to the Closing, (i)
Sellers shall contribute to the capital of Holding any Indebtedness of Holding
or the Company then owing to Sellers; (ii) any obligations owed by Sellers to,
or owed to Sellers by, the Company or Holding shall be cancelled, and (iii) any
amounts owed to Sellers by the Company or Holding relating to Sellers' prior
ownership of equity of the Company or Holding shall be cancelled.
(g) SHARE CERTIFICATES. The Management Shareholders shall cause the
Custodian of any individual retirement account holding any Shares in such
account for the benefit of any Management Shareholder or his or her spouse to
deliver to the Purchaser on the Closing Date certificates duly endorsed in blank
or, in lieu thereof, affixed with stock powers duly executed by such Custodian
in blank, and in proper form for transfer.
(h) RESIGNATIONS. On or prior to the Closing Date, the Management
Shareholders and the directors of the Company and Holding shall, if and to the
extent requested by the Purchaser, resign from their positions as officers,
directors and employees of Holding and/or the Company; PROVIDED, THAT, if any
Management Shareholder refuses to resign from any such positions, the Sellers
may cause the Company or Holding, as the case may be, to terminate such
Management Shareholder from such position. The Purchaser may, in its sole
discretion, make offers of employment to Management Shareholders it wishes to
retain.
(i) NO SHOP. The Sellers shall not and shall cause Holding and the
Company (and each of their respective directors, officers, employees, advisors,
representatives, agents or affili-
25
<PAGE>
ates) not to, directly or indirectly, encourage, engage in, solicit or initiate
any discussions or negotiations with, or provide any information to (except,
that in the event the Purchaser shall be obligated by law to publicly disclose
(and does so disclose) that this Agreement exists, the Sellers may provide
information to other persons for the sole purposes of advising them of the
existence of this Agreement), or negotiate or enter into any agreement or
agreement in principle with, any other person, entity or group, with respect to
a sale of Holding, the Company or any subsidiary of Holding or the Company,
their assets or capital stock or any similar transaction.
7. COVENANTS OF PURCHASER. Purchaser hereby covenants and agrees
that:
(a) REPRESENTATIONS AND WARRANTIES. From and after the date hereof
and until the Closing Date, Purchaser will not take any action which would cause
any of the representations and warranties made by it in this Agreement not to be
true and correct in all material respects on and as of the Closing Date with the
same force and effect as if such representations and warranties had been made on
and as of the Closing Date.
(b) CONSENTS; CONDITIONS PRECEDENT. From and after the date hereof
and until the Closing Date, Purchaser shall use its Best Efforts to obtain any
consents required pursuant to Schedules 4(i), 4(p) and 5(c) hereto in connection
with the transactions contemplated hereby and to cause the conditions precedent
to the consummation of the transactions contemplated hereby to be satisfied.
(c) HART-SCOTT-RODINO FILINGS. Purchaser shall make all required
filings as promptly as possible with the Federal Trade Commission and the U.S.
Department of Justice-Antitrust Division pursuant to the Hart-Scott-Rodino Act,
and it shall cooperate with Sellers, the Company and Holding in connection with
such filings.
(d) EMPLOYEE AND EMPLOYEE PLANS. As of the Closing Date, any employee
(other than Management Shareholders) of the Company or Holding shall remain an
employee of the Company or Holding, as the case may be, upon the same terms and
conditions of employment as applied to such employees immediately prior to the
Closing Date, and Purchaser shall cause the Company and Holding to continue to
be bound by any collective bargaining or other employment or consulting
agreement or arrangement to which it is a party with respect to any such
employee in accordance with and subject to the terms thereof. From and after
the Closing, Purchaser shall cause the Company and Holding to continue in effect
each Company Plan (other than with respect to Management Shareholders) for a
period of at least six (6) months following the Closing.
8. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION. The obligation of
Purchaser to consummate the purchase of the
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<PAGE>
Shares on the Closing Date is, at the option of Purchaser, subject to the
satisfaction or waiver of the following conditions:
(a) Each of the representations and warranties of Sellers (i)
contained in Sections 3 and 4(b) hereof shall be true and correct in all
respects as of the Closing Date, and (ii) contained in Section 4 (other than
Section 4(b)) shall be true and correct in all respects (except that any
qualifications, limitations or exceptions in any such representation or warranty
as to materiality or Material Adverse Effect shall be of no force and effect) as
of the Closing Date, in each case, with the same force and effect as though the
same had been made on and as of the Closing Date, except for (X) those given as
of a particular specified date (it being agreed that representations herein with
respect to the "date hereof" are not given as of a particular specified date),
which shall be true and correct in all respects as of such date, (Y) changes
therein permitted or contemplated hereby, and (Z) in the case of clause (ii)
above, for breaches of representations and warranties which when taken together
would not have a Material Adverse Effect or which relate to the environmental
condition of the Youngstown Property (as defined in Section 14(c)(i)).
(b) Sellers shall have performed and complied in all material respects
with the covenants and provisions in this Agreement required herein to be
performed or complied with by Sellers between the date of this Agreement and the
Closing Date, and Purchaser shall have received evidence reasonably satisfactory
to that any Indebtedness of the Company or Holding owing to Sellers shall have
been discharged and released in the manner described in Section 6(f) hereof.
(c) No action or proceeding shall have been instituted against
Purchaser, any Seller, the Company or Holding before any court or other
governmental body seeking to restrain or prohibit the consummation of the
transactions contemplated hereby, which in the reasonable opinion of Purchaser
makes it inadvisable to consummate such transactions. No governmental action or
proceeding shall have been instituted or threatened against Purchaser, any
Seller, the Company or Holding seeking to restrain or prohibit the consummation
of the transactions contemplated hereby, which in the reasonable opinion of
Purchaser makes it inadvisable to consummate such transactions.
(d) Purchaser shall have received an opinion of Leonard, Street and
Deinard, counsel for Sellers, dated the Closing Date and in form and substance
reasonably satisfactory to Purchaser and its counsel, as set forth in Exhibit B
hereto.
(e) Purchaser shall have received a certificate, dated the Closing
Date, signed by a duly authorized officer of each Institutional Seller and by
each Management Shareholder, certifying that the representations and warranties
of each such Seller contained in Section 3 hereof are true and correct in all
materi-
27
<PAGE>
al respects as of the Closing Date with the same force and effect as though the
same had been made on the Closing Date. The Purchaser shall have received a
certificate, dated the Closing Date, signed by the Chief Executive Officer and
the Chief Financial Officer of the Company, in their capacity as such (and
without personal liability to such persons except in the case of knowing
misstatements) certifying that the conditions set forth in Section 8(a) and
Section 8(b) hereof as they relate to Holding or the Company have been
satisfied.
(f) Purchaser shall have received a certificate of a duly authorized
officer of each Institutional Seller, dated the Closing Date, setting forth
resolutions of the Board of Directors or of the General Partner of each such
Seller generally authorizing the signing and performance of this Agreement and
the Escrow Agreement and the transactions contemplated hereby and thereby and
certifying that such resolutions were duly adopted and have not been rescinded
or amended as of the Closing Date.
(g) The consents of all persons who are parties to the agreements with
the Company or Holding identified on Schedules 4(i) or 4(p) with an asterisk (*)
shall have been obtained, and signed copies thereof shall have been delivered to
Purchaser.
(h) The waiting periods under the Hart-Scott-Rodino Act shall have
expired.
(i) Sellers shall have delivered to the Purchaser certificates
representing the Shares held by such Seller, which certificates shall be duly
endorsed in blank or, in lieu thereof, shall have affixed thereto stock powers
duly executed by a Custodian in blank, and in proper form for transfer.
(j) The Company shall have provided to Purchaser the detailed estimate
of the Closing Date Consolidated Net Working Capital and Indebtedness specified
in Section 2(e) of this Agreement.
(k) Holding shall have delivered to the Purchaser an affidavit, dated
as of the Closing Date, that is reasonably satisfactory to the Purchaser and
which satisfies the requirements of Section 1445(b)(3) of the Code and U.S.
Treasury Regulation Section1.1445-2(c)(3)(i).
(l) Sellers shall have executed and delivered to the Purchaser the
Escrow Agreement.
(m) At or prior to the Closing, (i) the Preferred Stock shall have
been redeemed, (ii) all Indebtedness owing to lenders of the Company shall have
been repaid and (iii) all Warrants shall have been cancelled or arrangements
with respect thereto which are satisfactory to the Purchaser shall have been
made.
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9. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION. The obligation of
Sellers to consummate the sale, transfer and assignment to Purchaser of the
Shares on the Closing Date is, at the option of Sellers holding sixty-six
percent (66%) or more of the Shares (the "Majority Sellers"), subject to the
satisfaction or waiver of the following conditions:
(a) Each of the representations and warranties of Purchaser contained
in Section 5 hereof shall be true and correct in all material respects as of the
Closing Date with the same force and effect as though the same had been made on
and as of the Closing Date, except for changes therein permitted or contemplated
hereby.
(b) Purchaser shall have performed and complied in all material
respects with the covenants and provisions in this Agreement required herein to
be performed or complied with by Purchaser between the date hereof and the
Closing Date.
(c) No action or proceeding, shall have been instituted against
Purchaser, any Seller, the Company or Holding before any court or other
governmental body, seeking to restrain or prohibit the consummation of the
transactions contemplated hereby, which in the reasonable opinion of the
Majority Sellers makes it inadvisable to consummate such transactions. No
governmental action or proceeding shall have been instituted or threatened
against Purchaser, any Seller, the Company, or Holding seeking to restrain or
prohibit the consummation of the transactions contemplated hereby, which in the
reasonable opinion of the Majority Seller makes it inadvisable to consummate
such transactions.
(d) Sellers shall have received an opinion of either Winston & Strawn
or Skadden, Arps, Slate, Meagher & Flom, counsel for Purchaser, dated the
Closing Date, in form and substance reasonably satisfactory to the Majority
Sellers and their counsel, as set forth in Exhibit C hereto.
(e) Sellers shall have received a certificate to the effect set forth
in subsections (a) and (b) above, dated the Closing Date, signed by a duly
authorized officer of Purchaser, in his capacity as such (and without personal
liability to such person except in the case of knowing misstatements).
(f) Sellers shall have received a certificate of a duly authorized
officer of Purchaser, dated the Closing Date, setting forth the resolutions of
the Board of Directors of Purchaser authorizing the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby, and
certifying that such resolutions were duly adopted and have not been rescinded
or amended as of the Closing Date.
(g) The waiting periods under the Hart-Scott-Rodino Act shall have
expired.
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(h) The Purchaser shall have executed and delivered to Sellers the
Escrow Agreement.
10. CLOSING DATE; CLOSING.
(a) Except as hereinafter provided, the closing hereunder (herein
called the "Closing") shall, subject to the provisions of Sections 8 and 9
hereof, take place at the offices of Skadden, Arps, Slate, Meagher & Flom, 919
Third Avenue, New York, New York 10021, at 10:00 A.M. on the date that is five
(5) Business Days after each of the conditions precedent to the Closing set
forth in Sections 8(c), (g), (h) and (j) and 9(c) and (g) shall have been
satisfied or waived, but in no event prior to April 15, 1996 or later than July
15, 1996, unless otherwise mutually agreed to in writing by Purchaser and the
Majority Sellers. The date of the closing is referred to in this Agreement as
the Closing Date.
(b) All proceedings to be taken and all documents to be executed and
delivered by Sellers in connection with the consummation of the transactions
contemplated hereby shall be reasonably satisfactory in form and substance to
Purchaser and its counsel. All proceedings to be taken and all documents to be
executed and delivered by Purchaser in connection with the consummation of the
transactions contemplated hereby shall be reasonably satisfactory in form and
substance to the Majority Sellers and their counsel. All proceedings to be
taken and all documents to be executed and delivered by all parties at the
Closing shall be deemed to have been taken and executed simultaneously and no
proceedings shall be deemed taken nor any documents executed or delivered until
all have been taken, executed and delivered.
(c) At the Closing, Sellers shall deliver, or shall cause to be
delivered, to Purchaser the following:
(i) Certificates representing the Shares, which certificates
shall be duly endorsed in blank or, in lieu thereof, shall have affixed thereto
stock powers executed in blank, and in proper form for transfer.
(ii) An opinion of Leonard, Street and Deinard, counsel for
Sellers, dated the Closing Date, setting forth the matters required pursuant to
Section 8(d) hereof.
(iii) The certificates referred to in Section 8(e) hereof.
(iv) The certified resolutions of the Board of Directors or
General Partner of each Seller referred to in Section 8(f) hereof.
(v) An incumbency certificate setting forth the names of
officers of each Institutional Seller who are authorized to execute this
Agreement and all documents executed by such
30
<PAGE>
Seller pursuant hereto, together with their respective signatures, signed by a
duly authorized officer of each such Seller.
(d) At the Closing, Purchaser shall deliver to Sellers the following:
(i) Immediately available funds in the aggregate amount of the
Purchase Price, as provided in Section 2 hereof.
(ii) An opinion of counsel for Purchaser, dated the Closing
Date, setting forth the matters required pursuant to Section 9(d) hereof.
(iii) The certificate signed by a duly authorized officer of
Purchaser referred to in Section 9(e) hereof.
(iv) The certified resolutions of the Board of Directors of
Purchaser referred to in Section 9(f) hereof.
(v) An incumbency certificate setting forth the names of
officers of Purchaser who are authorized to execute this Agreement and all
documents executed by Purchaser pursuant hereto, together with their respective
signatures, signed by a duly authorized officer of Purchaser.
11. INDEMNIFICATION.
(a) AGREEMENT BY THE SELLERS TO INDEMNIFY. Subject to the limitations
set forth in this Section 11, each Seller shall (i) severally but not jointly
indemnify the Purchaser, its officers, directors, affiliates, employees and
agents, Holding and the Company (the "Indemnified Parties") and hold the
Indemnified Parties harmless from and against any and all Losses (as hereinafter
defined) incurred by the Indemnified Parties by reason of, or relating to any
misrepresentation or breach of any representation or warranty of such Seller
contained in Section 3 of this Agreement; and (ii) indemnify the Indemnified
Parties and hold the Indemnified Parties harmless from and against any and all
Losses incurred by the Indemnified Parties by reason of, or relating to, (W) any
Losses, not covered by insurance, arising out of or relating to the Hallas
Litigation; (X) the failure of any representation or warranty contained in
Section 4 to be true and correct at Closing, or any breach of any covenant of
the Sellers contained herein; (Y) any facts, circumstances, conditions, events
or actions existing or occurring at any time with respect to any of (1) the
Memphis Sale, (2) the Youngstown Sale, (3) the Pony Panel Sale, or (4) the
operations and business which are the subject of any of the foregoing; and (Z)
any payments made out of the escrow account established in connection with the
Youngstown Sale. The obligations of each Management Shareholder to so indemnify
the Indemnified Parties shall include any Losses relating to any Shares held by
a Custodian as if such Shares were held directly by such Management Shareholder.
No claim based upon a breach of any representation or warranty may be asserted
by an Indemnified Party after such representation or warranty has
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<PAGE>
been extinguished, except that claims first asserted in writing prior to the
extinguishment thereof shall not thereafter be barred.
(b) SURVIVAL. The parties hereto agree that none of the
representations, warranties or covenants contained in this Agreement or in any
certificate, document or instrument delivered in connection herewith, shall
survive the Closing hereunder or the consummation of the transactions
contemplated hereby except that (i) those contained in Section 3, Section 4(b),
Section 11 and Section 12 shall survive without limitation, (ii) those contained
in Section 4 (other than Section 4(b)) and Section 6 shall expire on the date
that the Escrow Agreement terminates in accordance with the terms set forth in
the Escrow Agreement, and that none of the parties hereto shall have any rights
or obligations arising out of any of such representations, warranties or
covenants after the Closing hereunder or the termination of this Agreement
pursuant to Section 14 hereof, except for those contained in Section 3, Section
4, Section 6, Section 11 and Section 12 hereof.
(c) LIMITATION ON CLAIMS. (i) No Seller shall have any liability with
respect to the breach of any representation or warranty contained in Section 3
of this Agreement, or in any schedule, assignment, exhibit, or instrument
delivered relating thereto, in excess of the consideration received by such
Seller and the Custodian, if any, for the sale of such Seller's Shares.
(ii) No Seller shall have any liability with respect to the
indemnification provisions contained in clause (ii) of Section 11(a) hereof, (x)
unless and until the aggregate amount of all such claims against the Sellers
exceeds $250,000 (the "Threshold Amount") and then only to the extent that such
claims exceed the Threshold Amount and (y) in excess of the pro rata portion in
accordance with the Sellers' Distribution Schedule of the Escrow Fund
attributable to such Seller and the Custodian, if any.
(d) LOSSES DEFINED. As used in this Section 11, "Losses" means any
liability, loss, claim, deficiency, damage, payment (including, without
limitation, those arising out of any demand, settlement or judgment relating to
any legal, equitable or arbitration action or proceeding), cost or expense
(including reasonable attorney's fees incurred in the investigation or defense
thereof or the enforcement of rights hereunder) incurred by a party entitled to
indemnification under Section 11(a) of this Agreement. For purposes of
indemnification with respect to breaches of the second sentence of Section 4(k)
resulting from the actual loss of a sign or the use thereof, "Losses" shall be
limited to out of pocket costs and expenses (including fines, penalties and
attorneys' fees) incurred and to the present value of the revenue stream
anticipated to be derived therefrom.
(e) NOTICE AND OPPORTUNITY TO DEFEND. If an event occurs that
entitles an Indemnified Party, or that an Indemnified
32
<PAGE>
Party believes entitles it, to indemnification pursuant to this Section 11, the
Indemnified Party shall promptly notify the Seller or Sellers obligated or
believed to be obligated to provide indemnification therefor. If the claim for
indemnification arises out of a claim by a third party, such notice (the
"Notice") shall occur within 15 days of the Indemnified Party's receipt of
written notice of such claim; provided, however, that the failure to so notify
the Seller(s) shall not relieve the Seller(s) of their obligations hereunder,
except to the extent that they are actually prejudiced by such failure. The
Seller(s) shall have the right to undertake, conduct and control the defense
thereof by so notifying the Indemnified Party in writing, provided that the
Sellers' Representative (i) states that the settlement or defense of the claim
will be conducted at all times in good faith and in a reasonable manner (and so
conducts it), (ii) acknowledges in writing the obligation to indemnify the
Indemnified Party in accordance with the terms contained in this Agreement, and
(iii) promptly reimburses the Indemnified Party for all out-of-pocket expenses
incurred as a result of the assumption by the Sellers of control of such
settlement or defense. If the Sellers' Representative provides written notice
to the Indemnified Party that it elects to defend such claim, such Sellers'
Representative shall be obligated to defend such claim, at its own expense and
by counsel chosen by it and reasonably satisfactory to the Indemnified Party.
In the event the Sellers' Representative elects to provide the defense of such
claim pursuant to this Section ii(e), the Indemnified Party shall cooperate
fully with the Sellers' Representatives and its counsel in the defense of such
claim and shall be entitled to full access to information with respect thereto
and to participate in the defense thereof at its own cost and expense. Any
compromise, settlement or offer of settlement of such claim by the Sellers'
Representative shall require the prior written consent of the Indemnified Party,
which consent shall not be unreasonably withheld and unless such consent is
obtained, the Sellers' Representative shall continue the defense of such claim;
provided, however, that if the Indemnified Party refuses its consent to a bona
fide offer of settlement that the Sellers' Representative wishes to accept and
that involves no payment by the Indemnified Party not paid by the Seller(s) and
further involves no limitation on the future conduct of the business of Holding
or the Company, the Sellers' Representative may reassign the defense of such
claim to the Indemnified Party, who may then continue to pursue the defense of
such matter, free of any participation by the Sellers, at the sole cost and
expense of the Indemnified Party. In such event, the obligation of the
Seller(s) with respect thereto shall not exceed the amount of the offer of
settlement that the Indemnified Party refused to accept plus the costs and
expenses of the Indemnified Party prior to the date the Sellers' Representative
notified the Indemnified Party of the offer of settlement. If the Sellers'
Representative does not elect to defend any such claim, it shall nevertheless
have the right of full access to information with respect thereto and to
participate in such defense at its sole cost and expense and
33
<PAGE>
shall remain liable for any indemnification obligations pursuant to this
Agreement.
(f) ESCROW FUND. The Escrow Fund shall be disbursed pursuant to the
terms and conditions set forth in the Escrow Agreement.
(g) MATERIAL ADVERSE EFFECT DEFINITION. "Material Adverse Effect"
(as such term is used in any representation or warranty contained in Section 3
or Section 4) shall, for purposes of Section 11(a) of this Agreement, be deemed
to have occurred if the aggregate of all Losses related to any such
representation or warranty shall exceed $100,000.
12. NO BROKERS. Sellers represent to Purchaser, and Purchaser
represents to Sellers, that they respectively have had no dealings with any
broker or finder in connection with the transactions contemplated by this
Agreement, other than, with respect to Sellers, Furman Selz LLC and with respect
to Purchaser, Bear, Stearns & Co. Inc. Sellers agree to indemnify and hold
Purchaser harmless from and against any and all liability to which Purchaser may
be subjected by reason of any broker's, finder's or similar fee with respect to
the transactions contemplated by this Agreement to the extent such fee is
attributable to any action undertaken by or on behalf of Sellers. Purchaser
agrees to indemnify and hold each Seller harmless from and against any and all
liability to which such Seller may be subjected by reason of any broker's,
finder's or similar fee with respect to the transactions contemplated by this
Agreement to the extent such fee is attributable to any action undertaken by or
on behalf of Purchaser.
13. SPECIFIC PERFORMANCE. The parties hereto acknowledge that
irreparable damage would result if this Agreement is not specifically enforced.
Therefore, the rights and obligations of the parties under the Agreement,
including, without limitation, their respective rights and obligations to sell
and to purchase the Shares, shall be enforceable by a decree of specific
performance issued by any court of competent jurisdiction, and appropriate
injunctive relief may be applied for and granted in connection therewith. Such
remedies shall, however, be cumulative and not exclusive and shall be in
addition to any other remedies which any party may have under this Agreement or
otherwise.
14. TERMINATION. Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated:
(a) At any time on or prior to the Closing Date, by the mutual consent
in writing of Purchaser and Sellers;
(b) By either Purchaser or Sellers if the Closing shall not have
occurred on or before July 15, 1996 (or such later date as may be agreed upon in
writing by the parties hereto); or
34
<PAGE>
(c) By the Purchaser, by notice to the Sellers as provided in Section
17 hereof:
(i) in its sole discretion, at any time on March 1, 1996,
if the Sellers shall not have delivered after the execution hereof and prior to
12:01 a.m. on March 1, 1996, a report (the "Youngstown Report") containing
information as to the environmental condition of the property located at 1355
Logan Avenue, Youngstown, Ohio (the "Youngstown Property"); or
(ii) at any time on or prior to March 8, 1996, if a
Youngstown Report shall have been received by the Purchaser prior to 12:01 a.m.
on March 1, 1996, unless the Purchaser shall have determined in good faith that
the net Losses (including clean-up and remedial costs) associated with the
Youngstown Property would not equal or exceed $2 million.
In the event that this Agreement shall be terminated pursuant to this
Section 14, all further obligations of the parties under this Agreement (other
than Sections 12, 16 and 22) shall terminate without further liability of either
party to the other.
15. FURTHER ASSURANCES. The parties hereto each agree to execute such
other documents or agreements as may be necessary or desirable for the
implementation of this Agreement and the consummation of the transactions
contemplated hereby.
16. CONFIDENTIALITY, PRESS RELEASES.
(a) As more specifically set forth in the Confidentiality Agreement,
Purchaser agrees to keep proprietary information regarding the Company and
Holding confidential and agrees that it will only use such information in
connection with the transactions contemplated by this Agreement and that it will
not disclose any of such information other than (i) to Purchaser's directors,
officers, employees, representatives, financing sources and agents who are or
may be involved with the transactions contemplated by this Agreement, (ii) to
the extent such information presently is or hereafter becomes available on a
non-confidential basis from a source other than Sellers, the Company or Holding,
and (iii) to the extent disclosure is required by law, regulation or judicial
order by any governmental authority.
(b) Each Seller severally agrees to keep proprietary information
regarding Purchaser confidential and following the Closing will keep proprietary
information about Holding and the Company confidential and agrees that it, he or
she will only use such information in connection with the transactions
contemplated by this Agreement and not disclose any of such information other
than (i) to other Sellers or to the Company's and Holding's directors, officers,
employees, representatives and agents who are involved with the transactions
contemplated by this Agreement, (ii) to the extent such information presently is
or hereafter becomes available on a non-confidential basis from a source
35
<PAGE>
other than Purchaser, and (iii) to the extent disclosure is required by law,
regulation or judicial order by any governmental authority.
(c) Prior to any disclosure required by law, regulation or judicial
order Purchaser or each Seller, as the case may be, shall advise the other of
such requirement so that it, he or she may seek a protective order.
(d) Prior to Closing, neither Purchaser nor any Seller shall make any
press release or public announcement in connection with the transactions
contemplated hereby without the prior written consent of the other party or, if
required by law, without prior consultation with the other party.
17. NOTICES. Any notices or other communications required or
permitted hereunder, shall be sufficiently given and effective when sent if in
writing and personally delivered or sent by registered or certified mail,
postage prepaid, return receipt requested, or sent by facsimile, addressed as
follows or to such other address as the parties shall have given notice of
pursuant hereto:
In the case of Purchaser:
Universal Outdoor Holdings, Inc.
321 North Clark Street
Suite 1010
Chicago, Illinois, 60610
Attention: Daniel L. Simon
Telecopy: (312) 664-8371
Kelso & Company
350 Park Avenue
21st Floor
New York, New York 10022
Attention: James Connors
Telecopy: (212) 223-2379
With a copy to:
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attention: Leland E. Hutchinson, Esq.
Telecopy: (312) 558-5700
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Attention: Lou R. Kling, Esq.
Telecopy: 212-735-2000
36
<PAGE>
In the case of Sellers:
Marquette Venture Partners
520 Lake Cook Road
Suite 450
Deerfield, IL 60015
Attention: Jim Simons
Telecopy:
- -----------------
- -----------------
- -----------------
- -----------------
- -----------------
- -----------------
708-940-1724
With copies to:
Leonard, Street and Deinard
150 South Fifth Street
Suite 2300
Minneapolis, Minnesota 55402
Attention:
- -----------------
- -----------------
- -----------------
- -----------------
- -----------------
Morris M. Sherman, Esq.
Telecopy: 612-335-1657
18. ENTIRE AGREEMENT. This Agreement (including the schedules
hereto), the Escrow Agreement and the Confidentiality Agreement represent the
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter. This Agreement can be amended, supplemented or
changed, and any provision hereof can be waived, only by written instrument
making specific reference to this Agreement signed by the parties against whom
enforcement of any such amendment, supplement, modification or waiver is sought.
19. SUCCESSORS. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, successors and
assigns; provided, however, that this Agreement and all rights and obligations
hereunder may not be assigned or transferred by the Purchaser (other than to
Daniel L. Simon, Kelso & Company or any of their or the Purchaser's affiliates),
without the prior written consent of the Sellers, or by the Sellers without the
prior written consent of the Purchaser.
20. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not
37
<PAGE>
affect in any way the meaning or interpretation of this Agreement.
21. APPLICABLE LAW. This Agreement shall be governed by, construed
and enforced in accordance with the laws of the State of Delaware, without
regard to the principles thereof relating to conflict of laws, and the parties
hereto hereby consent to the jurisdiction of the courts of the State of Delaware
over such parties.
22. EXPENSES. Whether or not the transactions contemplated hereby are
consummated, the parties hereto shall pay their own respective expenses, except
that Purchaser and Seller shall share the costs of the applicable filing fee in
connection with the filings referred to in Sections 6(e) and 7(c) hereof.
23. SEVERABILITY. If at any time subsequent to the date hereof, any
provision of this Agreement shall be held by any court of competent jurisdiction
to be illegal, void or unenforceable, such provision shall be of no force and
effect, but the illegality or unenforceability of such provision shall have no
effect upon and shall not impair the enforceability of any other provision of
this Agreement.
24. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
25. PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its affiliates and nothing
in this Agreement, express or implied, is intended by or shall confer upon any
other person any rights, benefits or remedies of any nature whatsoever under or
by reason of this Agreement.
26. SELLERS' REPRESENTATIVE. The Purchaser shall be entitled to rely
(i) upon the identity of the Sellers' Representative as provided in Section 2(c)
hereof and (ii) upon the authority of the Sellers' Representative to act on
behalf of and bind all of the Sellers, both before and after the Closing, as to
those matters delegated to the Sellers' Representative by the terms of this
Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
UNIVERSAL OUTDOOR, INC.
By
-------------------------------------
Name:
Title:
INSTITUTIONAL SELLERS
WIND POINT PARTNERS II, L.P.
By
-------------------------------------
Name:
Title:
MARQUETTE VENTURE PARTNERS, L.P.
By Marquette Venture Associates, L.P.
Its General Partner
By Marquette Management Partners
By
-------------------------------------
-------------------------------------
A General Partner
CHEMICAL EQUITY ASSOCIATES,
A CALIFORNIA LIMITED PARTNERSHIP
By Chemical Venture Partners
Its General Partner
By
-------------------------------------
-------------------------------------
A General Partner
<PAGE>
BANC ONE VENTURE CORPORATION
By
-------------------------------------
Name:
Title:
MANAGEMENT SHAREHOLDERS
JEFF EVRARD
-------------------------------------
LON BINDER
-------------------------------------
ROY SCHROEDER
-------------------------------------
ESTATE OF PAUL F. BARKER
By
-------------------------------------
Name:
Title:
BRUCE DAVIES
-------------------------------------
LEE ANN MULLER
-------------------------------------
R. JAMES SCHWARZ
-------------------------------------
<PAGE>
EXHIBIT A-1
TERMS OF ESCROW ARRANGEMENT
1. In accordance with Section 2(a) of the Stock Purchase Agreement, the
Purchaser shall deposit in immediately available funds to a single interest
bearing account at Chemical Bank, $400,000 plus any amounts in excess of
$85,000,000 that are, or would otherwise be, payable pursuant to the terms of
the Stock Purchase Agreement on the Closing Date to the Sellers or the holders
of any Indebtedness.
2. The Working Capital Escrow Fund shall be established for the benefit
of the Sellers and the Purchaser, and shall remain on deposit with Chemical Bank
until such time as funds from the Working Capital Escrow Fund shall be
distributed to the Sellers and/or the Purchaser pursuant to paragraph 3 below.
3. Upon delivery of either (i) a joint notice from Sellers'
Representative and the Purchaser or (ii) a determination by the Independent
Accountants (the "Determination"), in each case, to distribute funds in the
Working Capital Escrow Fund as follows: (i) the Working Capital Escrow Fund
shall be distributed to the Purchaser to repay to the Purchaser any portion of
the excess of the estimate of the Adjusted Cash Purchase Price paid at Closing
over the Adjusted Cash Purchase Price as calculated pursuant to Section 2(e) of
the Stock Purchase Agreement, and (ii) any funds remaining in the Working
Capital Escrow Fund following the distribution pursuant to subclause (i) of this
paragraph 3 shall be distributed to the Sellers pro rata in accordance with the
Sellers' Distribution Schedule. The Selected Accounting Firm is hereby
authorized by the parties to deliver the Determination in accordance with the
provisions of Section 2(e) of the Stock Purchase Agreement.
4. The Working Capital Escrow Fund shall survive until the final
resolution of and payment, if any, in respect of, the matters contemplated by
Section 2(e) of the Stock Purchase Agreement.
<PAGE>
EXHIBIT B
, 1996
---------------
FORM OF OPINION OF COUNSEL TO SELLER:
Gentlemen:
We have acted as counsel to Wind Point Partners II, L.P., Marquette
Venture Partners, L.P., Chemical Equity Associates, Banc One Venture
Corporation, and certain Management Shareholders (as such term and other
capitalized terms used but not defined herein are defined in that certain Stock
Purchase Agreement described herein) ("Sellers") in connection with the
preparation, authorization, execution and delivery of, and the consummation of
the transactions contemplated by, the Stock Purchase Agreement between Universal
Outdoor, Inc. ("Purchaser") and Sellers relating to the capital stock of NOA
Holding, Inc. dated February 26, 1996 (the "Stock Purchase Agreement").
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Stock Purchase Agreement and
such corporate records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of Sellers, and have made such inquiries of such officers and
representatives as we have deemed relevant and necessary as a basis for the
opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Sellers and upon the representations and warranties of
the Sellers contained in the Agreement. In rendering this opinion we have
relied on the opinion(s) of [ ](1), which shall be reasonably acceptable
to the Purchaser, with respect to (i) the due incorporation or organization and
valid existence of each Institutional Seller, (ii) that each Institutional
Seller has the requisite corporate
- ----------
(1) The opinion of such counsels may be delivered directly to the
Purchaser.
<PAGE>
or partnership power and authority to enter into and perform its obligations
under the Stock Purchase Agreement, (iii) the due authorization of the Stock
Purchase Agreement by each Institutional Seller and the due execution and
delivery of the Stock Purchase Agreement by each Seller and (iv) the execution
and delivery of the Stock Purchase Agreement and the Escrow Agreement does not
conflict with any of the Institutional Sellers' organizational documents, or
with any judgment or decree to which any Seller is bound.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. Each of the Company and Holding is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware.
Each of the Company and Holding has the requisite corporate power and authority
to own, lease and operate its properties and carry on its business as presently
conducted.
2. The authorized capital stock of Holding consists of (i) 200,000
shares of Class A Common Stock, par value $.01 per share, of which 72,747.22
shares are outstanding, (ii) 25,000 shares of Class B Common Stock, par value
$.01 per share, of which 4,829.81 shares are outstanding, and (iii) 1,000 shares
of Preferred Stock, par value $.10 per share, of which no shares are
outstanding. The authorized capital stock of the Company consists of 1,000
shares of Common Stock, par value $.01 per share, of which 1,000 shares are
outstanding. All of such issued and outstanding shares of the Company and
Holding have been validly issued and are fully paid and non-assessable and have
not been issued in violation of any preemptive rights. All of the issued and
outstanding shares of the Company's Common Stock have been validly issued and
are fully paid and non-assessable, and are owned of record and beneficially by
Holding, and Holding has good title thereto, free and clear of all liens,
claims, restrictions, limitations, security interests and encumbrances of any
kind. To the best of our knowledge, there is no other capital stock, option,
warrant, call, commitment or other security or agreement of any kind of Holding
or the Company outstanding other than as set forth in the first two sentences of
this paragraph 2.
3. Each Seller is the record owner of that number of Shares set forth
on Schedule 3(c) to the Stock Purchase Agreement, and delivery of the Shares to
Purchaser in accordance with the terms hereof will convey to Purchaser good
title to the Shares, free and clear of any and all Encumbrances, assuming that
Purchaser acquires the Shares without notice of any adverse claim, as that term
is used in the uniform commercial code as adopted in the State of Delaware.
2
<PAGE>
4. Each of Wind Point and Marquette is a limited partnership duly
organized under the laws of the State of Delaware. Chemical is a limited
partnership duly organized under the laws of the State of California. Each of
Wind Point, Marquette and Chemical has full authority to own the Shares owned by
it and to sell such Shares to the Purchaser pursuant to the Stock Purchase
Agreement and otherwise perform its obligations under the Escrow Agreement and
the Stock Purchase Agreement. Banc One is a corporation duly organized, validly
existing and in good standing under the laws of the State of Wisconsin and has
full corporate power and authority to own the Shares owned by it and to sell
such Shares to the Purchaser pursuant to the Stock Purchase Agreement and
otherwise perform its obligations under the Escrow Agreement and the Stock
Purchase Agreement. Each of the Management Shareholders has full authority to
own the Shares owned by him and to sell such Shares to the Purchaser pursuant to
the Stock Purchase Agreement and otherwise perform its obligations under the
Escrow Agreement and the Stock Purchase Agreement.
5. Sellers have the requisite corporate or other power and authority
to enter into the Stock Purchase Agreement and the Escrow Agreement and to
perform its obligations thereunder. The execution and delivery of the Stock
Purchase Agreement and the Escrow Agreement and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
corporate or other action on the part of Sellers, and does not conflict with any
of the Institutional Sellers' organizational documents, or with any judgment or
decree to which any Seller is bound.
6. The execution and delivery of the Stock Purchase Agreement and the
Escrow Agreement and the consummation of the transactions contemplated thereby
does not violate any of the provisions of Holding's or the Company's Certificate
of Incorporation or By-Laws or any judgment or decree to which the Company or
Holding is a party.
7. The Stock Purchase Agreement and the Escrow Agreement (assuming the
due authorization, execution and delivery thereof by Purchaser) constitute the
legal, valid and binding obligations of each Seller, enforceable against it, him
or her in accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing, regardless of whether
enforcement is sought in a proceeding at law or in equity.
The opinions expressed herein are limited to the laws of the State of
Minnesota, the laws of the State of Delaware and
3
<PAGE>
the federal laws of the United States, and in the case of paragraphs 4 and 5,
the laws of California and Wisconsin but solely in reliance on the opinions of
[local counsel reasonably acceptable to Purchaser] and we express no opinion as
to the effect on the matters covered by this letter of the laws of any other
jurisdiction.
The use of the phrase "to the best of our knowledge" or "known to us"
or similar phrases to qualify a statement made herein is intended to indicate
that during the course of our representation of Holding and the Company in this
matter no information has come to our attention that has given us current,
actual knowledge that the statement made is not correct. Except as otherwise
expressly set forth herein, we have not undertaken any independent investigation
with respect to the opinions expressed herein which are "to the best of our
knowledge".
The opinions expressed herein are rendered solely for your benefit in
connection with the transactions described herein. Those opinions may not be
used or relied upon by any other person, nor may this letter or any copies
thereof be furnished to a third party, filed with a governmental agency, quoted,
cited or otherwise referred to without our prior written consent, except that
your financing sources may rely on this as if it were addressed to them.
Very truly yours,
4
<PAGE>
EXHIBIT C
FORM OF OPINION OF COUNSEL TO PURCHASER
1. Purchaser is a corporation incorporated, existing and in good
standing under the laws of the State of Illinois, and has the requisite
corporate power and corporate authority to own, lease and operate its properties
and carry on its business as presently conducted.
2. Purchaser has the requisite corporate power and corporate authority
to enter into the Stock Purchase Agreement and the Escrow Agreement and to
perform its obligations thereunder. The execution and delivery of the Stock
Purchase Agreement and the Escrow Agreement and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action on the part of Purchaser, and does not conflict with any of the
provisions of Purchaser's Certificate of Incorporation or By-Laws or any
judgment or decree to which Purchaser is bound.
3. The Stock Purchase Agreement and the Escrow Agreement has been duly
executed and delivered by Purchaser and constitutes the legal, valid and binding
obligation of Purchaser, enforceable against it in accordance with its terms,
except that enforcement thereof may be subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing, regardless of whether
enforcement is sought in a proceeding at law or in equity.
<PAGE>
AMENDMENT NO. 1 TO THE
STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1 TO THE STOCK PURCHASE AGREEMENT, dated as of April 5,
1996 (this "Amendment No. 1"), by and among UNIVERSAL OUTDOOR, INC., an Illinois
corporation (hereinafter referred to as "Purchaser"), and WIND POINT PARTNERS
II, L.P., a Delaware limited partnership ("Wind Point"); MARQUETTE VENTURE
PARTNERS, L.P., a Delaware limited partnership ("Marquette"); CHASE EQUITY
ASSOCIATES, L.P. (formerly known as CHEMICAL EQUITY ASSOCIATES, A CALIFORNIA
LIMITED PARTNERSHIP) ("CEA"); BANC ONE VENTURE CORPORATION, a Wisconsin
corporation ("Banc One"); the MANAGEMENT SHAREHOLDERS who are signatories hereto
(the "Management Shareholders"); and CHASE MANHATTAN INVESTMENT HOLDINGS, INC.,
a Delaware corporation ("Chase Investment").
WHEREAS, Purchaser, Wind Point, Marquette, CEA, Banc One and the
Management Shareholders have entered into the Stock Purchase Agreement, dated as
of February 27, 1996 (the "Stock Purchase Agreement"); and
WHEREAS, Chase Investment has received by assignment from The Chase
Manhattan Bank, N.A., a national banking association ("Chase Bank"), Warrants
(the "Warrants") to purchase 5,000 shares of Class A Common Stock, subject to
certain adjustments, of NOA Holding Company, a Delaware corporation ("Holding")
is the owner of the Warrants and, prior to the Closing, wishes to exercise such
Warrants;
WHEREAS, following such exercise, Chase Investment wishes to sell such
shares to the Purchaser and the Purchaser wishes to purchase such shares
pursuant to the terms and subject to the conditions of the Stock Purchase
Agreement;
WHEREAS, in order to effect the foregoing, Purchaser, Wind Point,
Marquette, CEA, Banc One and the Management Shareholders desire to amend and
modify the Stock Purchase Agreement to add Chase Investment as a party to the
Stock Purchase Agreement, to provide for the sale of such shares of Class A
Common Stock owned by Chase Investment to the Purchaser, to make Chase
Investment a "Seller" for all purposes of the Stock Purchase Agreement and to
further amend and modify certain provi-
<PAGE>
sions of the Stock Purchase Agreement as set forth herein. Capitalized terms
used but not otherwise defined herein shall have the meaning ascribed to them
in the Stock Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser, Wind Point, Marquette,
CEA, Banc One, the Management Shareholders and Chase Investment hereby agree
that the Stock Purchase Agreement shall be, and hereby is, amended and modified
as follows:
1. AMENDMENT TO PREAMBLE. The preamble of the Stock Purchase
Agreement is hereby amended by deleting the preamble in its entirety and
substituting in lieu thereof the following:
"AGREEMENT made as of this 27th day of February, 1996, by and among
UNIVERSAL OUTDOOR, INC., an Illinois corporation (hereinafter referred to
as "Purchaser"), and WIND POINT PARTNERS II, L.P., a Delaware limited
partnership ("Wind Point"); MARQUETTE VENTURE PARTNERS, L.P., a Delaware
limited partnership ("Marquette"); CHASE EQUITY ASSOCIATES, L.P. (formerly
known as CHEMICAL EQUITY ASSOCIATES, A CALIFORNIA LIMITED PARTNERSHIP)
("Chemical"); BANC ONE VENTURE CORPORATION, a Wisconsin corporation ("Banc
One"); CHASE MANHATTAN INVESTMENT HOLDINGS, INC., a Delaware corporation
("Chase Investment"); and the MANAGEMENT SHAREHOLDERS (as hereinafter
defined)(Wind Point, Marquette, Chemical, Banc One and Chase Investment
being sometimes hereinafter referred to collectively as the "Institutional
Sellers" and, together with the Management Shareholders, the "Sellers")."
2. AMENDMENT TO CERTAIN DEFINITIONS.
(a) The definition of "SHARES" set forth in Section 1 of the Stock
Purchase Agreement is hereby amended by deleting the number "72,747.22" in the
first line of the definition of "SHARES" and substituting the number "77,747.22"
in lieu thereof.
(b) Section 1 of the Stock Purchase Agreement is hereby amended by
adding the following definition of "MARCH 31 BALANCE SHEET" after the definition
of "MANAGEMENT SHAREHOLDERS":
2
<PAGE>
""MARCH 31 BALANCE SHEET" shall have the meaning specified in Section
2(e) of this Agreement."
(c) Section 1 of the Stock Purchase Agreement is hereby amended by
adding the following definition of "WARRANT AGREEMENT" after the definition of
"WARN ACT":
""WARRANT AGREEMENT" shall mean the Warrant Agreement, dated May 22,
1991, between Chase Bank and Holding."
3. AMENDMENT TO SECTION 2(A). Section 2(a) of the Stock Purchase
Agreement is hereby amended by:
(a) deleting the words "Chemical Bank" in the fourteenth line of
Section 2(a) and substituting in lieu thereof:
"Bankers Trust Company, (PROVIDED, HOWEVER, that Sellers may
subsequently, at their sole discretion, upon written notice to the
Purchaser, replace Bankers Trust Company with Chemical Bank as Escrow
Agent)";
(b) deleting the words "Chemical Bank" in the twenty-first line of
Section 2(a) and substituting in lieu thereof the words "Bankers Trust
Company";
(c) adding the following phrase after the word "Date" in the twenty-
third line of Section 2(a):
"(PROVIDED, HOWEVER, that Sellers may subsequently, at their sole
discretion, upon written notice to the Purchaser, direct Bankers Trust
Company to deposit such funds in a single account at Chemical Bank)";
(d) deleting the phrase "plus any amounts in excess of $85,000,000
that are, or would otherwise be, payable pursuant to the terms of this
Agreement on the Closing Date to the Sellers or the holders of any
Indebtedness" after the number "$400,000" in clause (iii) of the second
sentence thereof; and
(e) adding the following sentence to the end of Section 2(a):
3
<PAGE>
"As additional consideration and as an adjustment to the Cash Purchase
Price, on the Closing Date, Purchaser shall pay to Sellers, to the
single account specified by Sellers in clause (i) of the preceding
sentence, an amount equal to the product of (X) $5,000 and (Y) the
number of calendar days from and including April 1, 1996 to and
including the date immediately preceding to the Closing Date."
4. AMENDMENT TO SECTION 2(B). Section 2(b) of the Stock Purchase
Agreement is hereby amended by:
(a) deleting the words "Closing Date" in the fourth line of clause
(i) of the first paragraph of Section 2(b) and substituting the words
"close of business on March 31, 1996" in lieu thereof; and
(b) deleting the words "Closing Date" in the third line of clause
(ii) of the first paragraph of Section 2(b) and substituting the words
"close of business on March 31, 1996" in lieu thereof.
5. AMENDMENT TO SECTION 2(E). Section 2(e) of the Stock Purchase
Agreement is hereby amended by:
(a) deleting the words "Closing Date" in each of the second and sixth
lines of the first paragraph of Section 2(e) and substituting the words
"close of business on March 31, 1996" in each case in lieu thereof;
(b) adding the following sentence to the end of the first paragraph
of Section 2(e):
"The proceeds from the exercise of the Warrants by Chase Investment in
the amount of $723,750 shall upon receipt by Holding (and prior to the
Closing) immediately be transferred by Holding to Chase Bank to reduce
the Indebtedness owed by Holding to Chase Bank. For purposes of (i)
estimating the Consolidated Net Working Capital as of March 31, 1996,
and (ii) calculating the Consolidated Net Working Capital as of March
31, 1996 to determine the Closing Date Balance Sheets, in each case in
accordance with Section 2(e), the proceeds from the exercise of the
Warrants by Chase Investment in the amount of
4
<PAGE>
$723,750 shall for all
purposes be excluded from the calculation of Consolidated Net Working
Capital and shall not be treated as cash or cash equivalents or any
other asset for purposes of calculating Consolidated Net Working
Capital. For purposes of (i) estimating Indebtedness as of March 31,
1996, and (ii) calculating Indebtedness as of March 31, 1996 to
determine the Closing Date Balance Sheets, in each case in accordance
with Section 2(e), Indebtedness shall be reduced by the proceeds from
the exercise of the Warrants by Chase Investment in the amount of
$723,750.";
(c) adding the following sentences to the end of the first paragraph
of Section 2(e) (after giving effect to clause (b) above):
"Except as may be required to give effect to the provisions of
paragraph 5(b) of this Amendment No. 1, Purchaser and Sellers agree
that for purposes of this Section 2(e), the unaudited consolidated
balance sheet of Holding and the Company as of March 31, 1996 (the
"March 31 Balance Sheet") attached hereto as Annex I shall be deemed
to be the detailed estimate of the Consolidated Net Working Capital
and Indebtedness as of March 31, 1996 referenced in the first sentence
of this Section 2(e). The March 31 Balance Sheet shall be prepared in
accordance with and otherwise consistent with the provisions of
Section 2 of this Agreement.";
(d) deleting the words "Closing Date" in each of the seventh and
ninth lines of the second paragraph of Section 2(e) and substituting the
words "close of business on March 31, 1996" in each case in lieu thereof;
and
(e) deleting the words "Closing Date" in each of the seventh, tenth,
fourteenth, twenty-second, thirty-seventh, thirty-ninth and fifty-second
lines of the third paragraph of Section 2(e) and substituting the words
"close of business on March 31, 1996" in each case in lieu thereof.
5
<PAGE>
6. AMENDMENT TO SECTION 3(A). Section 3(a) of the Stock Purchase
Agreement is hereby amended by adding the following sentence to the end of
Section 3(a):
"Chase Investment is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has full
corporate power and authority, following the exercise of the Warrants
pursuant to Section 6(j), to own the Shares owned by it and to sell such
Shares to the Purchaser pursuant to this Agreement and otherwise perform
its obligations under the Escrow Agreement and hereunder, and such delivery
will convey to the Purchaser good and marketable title to such Shares free
and clear of all liens, claims, restrictions, limitations, security
interests and encumbrances of any kind."
7. AMENDMENT TO SCHEDULE 3(C). Schedule 3(c) of the Stock Purchase
Agreement is hereby amended by deleting Schedule 3(c) in its entirety and
substituting Amended Schedule 3(c) attached hereto.
8. AMENDMENT TO SECTION 4(B). Section 4(b) of the Stock Purchase
Agreement is hereby amended by:
(a) adding the words "as of the date hereof and 77,747.22 shares of
Class A Common Stock will be outstanding as of the Closing Date" at the end
of clause (i) of the first sentence thereof; and
(b) deleting clause (ii) of the second sentence thereof and replacing
such clause in its entirety with the following:
"(ii) the Warrants shall have been exercised for 5,000 validly issued,
fully paid and non-assessable shares of Class A Common Stock (at an
exercise price of $144.75 per share, or an aggregate of $723,750) and
the Warrants and the Warrant Agreement and all rights thereunder shall
have been terminated or cancelled in their entirety."
9. AMENDMENT TO SECTION 6(C). Section 6(c) of the Stock Purchase
Agreement is hereby amended by adding the following sentence at the end of
Section 6(c):
6
<PAGE>
"Notwithstanding the foregoing or any other provisions of this Agreement
(including Section 6(f) hereof but excluding Section 24 of Amendment No. 1
to the Stock Purchase Agreement), from and after March 31, 1996 and until
the Closing Date, (X) Sellers shall not permit the Company or Holding to
(1) pay, discharge or otherwise satisfy any claim, liability or obligation
(including to Sellers) other than payment of any corporate or operating
bonuses accrued and reflected on the March 31 Balance Sheet, or (2) pay or
otherwise satisfy any Indebtedness (including Indebtedness owing to Sellers
or any affiliate of Sellers, but excluding (a) any payments made to Chase
Bank (as reflected in the March 31 Balance Sheet) in connection with the
Interest Rate Swap Agreement, dated July 12, 1991, between the Company and
Chase Bank and the Interest Rate Swap Confirmation, dated March 18, 1994,
between the Company and Chase Bank, and (b) the repayment of Indebtedness
owed to Chase Bank solely from the proceeds of the exercise of the Warrants
by Chase Investment), in the case of each of clauses (1) and (2), except
for payments on accounts payable made in the ordinary course of business
and consistent with past practice, and (Y) Sellers have not permitted and
shall not permit the Company or Holding to incur any additional
Indebtedness (other than interest and fees accruing in respect of
Indebtedness under the above-referenced Amended and Restated Credit
Agreement)."
10. AMENDMENT TO SECTION 6(F). Section 6(f) of the Stock Purchase
Agreement is hereby amended by adding the following phrase at the end of the
second sentence thereof:
"; PROVIDED, HOWEVER, that the foregoing clauses (i), (ii) and (iii) shall
not be applicable with respect to the Amended and Restated Credit
Agreement, dated August 31, 1994, between the Company and Chase Bank; the
Interest Rate Swap Agreement, dated July 12, 1991, between the Company and
Chase Bank; and the Interest Rate Swap Confirmation, dated March 18, 1994,
between the Company and Chase Bank."
11. AMENDMENT TO SECTION 6. Section 6 of the Stock Purchase
Agreement is hereby amended by adding a new Section 6(j) as follows:
7
<PAGE>
"(j) EXERCISE OF THE WARRANTS. On or prior to the Closing Date, Chase
Investment shall exercise the Warrants in compliance with the terms thereof
(including the payment by Chase Investment (or an affiliate thereof) to
Holding of the exercise price specified in the Warrants, or $723,750 in the
aggregate), and pursuant to the terms of the Warrants, upon exercise by
Chase Investment, Holding shall issue to Chase Investment share
certificates for 5,000 shares of non-voting Class A Common Stock (Class
A-2). The Warrants and the Warrant Agreement shall thereupon be terminated
or cancelled in their entirety and Chase Investment shall waive any and all
rights it may have in respect thereof."
12. AMENDMENT TO SECTION 8(D). Section 8(d) of the Stock Purchase
Agreement is hereby amended by:
(a) adding the words "(other than Chase Investment)" after the word
"Sellers" in the second line thereof; and
(b) adding the following sentence at the end of Section 8(d):
"Purchaser shall have received an opinion of Milbank Tweed Hadley & McCloy,
counsel for Chase Investment, dated the Closing Date and in form and
substance reasonably satisfactory to Purchaser and its counsel, as set
forth in Exhibit B-1 hereto."
13. AMENDMENT TO SECTION 8(M). Section 8(m) of the Stock Purchase
Agreement is hereby amended by deleting clause (iii) thereof in its entirety and
substituting in lieu thereof the following:
"(iii) all Warrants shall have been exercised in compliance with the terms
thereof, and, upon exercise of the Warrants, Holding shall have issued to
Chase Investment share certificates for 5,000 shares of Class A Common
Stock."
14. AMENDMENT TO SECTION 10(A). Section 10(a) of the Stock Purchase
Agreement is hereby amended by deleting the phrase "and (j)" in the seventh line
thereof and substituting the phrase "(j) and (m)" in lieu thereof.
8
<PAGE>
15. AMENDMENT TO SECTION 10(C)(II). Section 10(c)(ii) of the Stock
Purchase Agreement is hereby amended by:
(a) adding the words "(other than Chase Investment)" after the word
"Sellers" in the second line thereof; and
(b) adding the following sentence at the end of Section 10(c)(ii):
"An opinion of Milbank Tweed Hadley & McCloy, counsel for Chase
Investment, dated the Closing Date, setting forth the matters required
pursuant to Section 8(d) hereof."
16. AMENDMENT TO PREAMBLE OF EXHIBIT A. The preamble of Exhibit A to
the Stock Purchase Agreement is hereby amended by deleting the preamble to
Exhibit A in its entirety and substituting in lieu thereof the following:
"ESCROW AGREEMENT made as of this [ ] day of [ ], 1996 (the
"Escrow Agreement"), by and among UNIVERSAL OUTDOOR, INC., an Illinois
corporation (hereinafter referred to as the "Purchaser"), and WIND POINT
PARTNERS II, L.P., a Delaware limited partnership ("Wind Point"); MARQUETTE
VENTURE PARTNERS, L.P., a Delaware limited partnership ("Marquette"); CHASE
EQUITY ASSOCIATES, L.P. (formerly known as CHEMICAL EQUITY ASSOCIATES, A
CALIFORNIA LIMITED PARTNERSHIP) ("Chemical"); BANC ONE VENTURE CORPORATION,
a Wisconsin corporation ("Banc One"); CHASE MANHATTAN INVESTMENT HOLDINGS,
INC., a Delaware corporation ("Chase Investment"); and the MANAGEMENT
SHAREHOLDERS set forth on Schedule 1 hereto (the "Management Shareholders")
(Wind Point, Marquette, Chemical, Banc One and Chase Investment being
sometimes hereinafter referred to collectively as the "Institutional
Sellers" and, together with the Management Shareholders, the "Sellers") and
Bankers Trust Company (the "Escrow Agent"), which term shall include any
successor escrow agent appointed in accordance with Section 7(b) hereof."
17. AMENDMENT TO EXHIBIT A-1. Exhibit A-1 to the Stock Purchase
Agreement is hereby amended by:
9
<PAGE>
(a) deleting the words "Chemical Bank," in the third line of
paragraph 1 of Exhibit A-1 and substituting in lieu thereof:
"Bankers Trust Company, PROVIDED, HOWEVER, that Sellers may
subsequently, at their sole discretion, upon written notice to the
Purchaser, replace Bankers Trust Company with Chemical Bank as Escrow
Agent";
(b) deleting the phrase "plus any amounts in excess of $85,000,000
that are, or would otherwise be, payable pursuant to the terms of the Stock
Purchase Agreement on the Closing Date to the Sellers or the holders of any
Indebtedness" after the number "$400,000" in paragraph 1 of Exhibit A-1;
and
(c) deleting the words "Chemical Bank" in the third line of
paragraph 2 of Exhibit A-1 and substituting in lieu thereof the words
"Bankers Trust Company PROVIDED, HOWEVER, that Sellers may subsequently, at
their sole discretion, upon written notice to the Purchaser, direct Bankers
Trust Company to deposit such funds in a single account at Chemical Bank,".
18. AMENDMENT TO EXHIBIT B. Exhibit B to the Stock Purchase
Agreement is hereby amended by:
(a) deleting the word "Seller" in the heading of Exhibit B and
substituting the words "Certain of the Sellers" in lieu thereof;
(b) adding the words ", Chase Manhattan Investment Holdings,
Inc. ("Chase Investment")" after the word "("Purchaser")" in the ninth line
of the first paragraph of Exhibit B;
(c) deleting the number "72,747.22" in the third line of the
second opinion contained therein and substituting the number "77,747.22" in
lieu thereof;
(d) deleting the word "the" before the word "Shares" in each of
the third, fifth and sixth lines of the third opinion contained therein and
substituting the word "such" in each case in lieu thereof; and
10
<PAGE>
(e) adding the words "Chase Investment and" before the word
"Purchaser" in the third line of the seventh opinion contained therein.
19. AMENDMENT TO EXHIBITS. The Exhibits to the Stock Purchase
Agreement are hereby amended by adding Exhibit B-1 attached hereto.
20. Following the execution and delivery of the Stock Purchase
Agreement, Chemical changed its name to "Chase Equity Associates, L.P.", and
Chemical's general partner changed its name to "Chase Capital Partners". In the
Stock Purchase Agreement, this Amendment No. 1 and any other agreement,
certificate, opinion or other instrument delivered in connection herewith or in
connection with the closing of the transactions contemplated herein, all
references to "Chemical Equity Associates, a California Limited Partnership" or
"Chase Equity Associates, L.P." are understood by the parties to refer to the
entity now known as "Chase Equity Associates, L.P." and formerly known as
"Chemical Equity Associates, a California Limited Partnership", and all
references to "Chemical Venture Partners" or "Chase Capital Partners" are
understood by the parties to refer to the entity now known as "Chase Capital
Partners" and formerly known as "Chemical Venture Partners".
21. Attached hereto as Annex II is the Sellers' Distribution
Schedule.
22. Sections 1, 2(a), 2(c), 5(b), 6, 7, 8, 10, 11, 12, 13, 14, 15,
16, 18 and 19 of this Amendment No. 1 shall become effective if and when the
Warrants have been exercised by Chase Investment in compliance with the terms
thereof (including the payment by Chase Investment (or an affiliate thereof) to
Holding of the payment specified in the Warrants) on or prior the Closing Date;
PROVIDED, HOWEVER, that Purchaser may, at its sole discretion, waive this
condition to the effectiveness of any such sections at which time such sections
of this Amendment No. 1 shall immediately become effective. Except as set forth
in the preceding sentence, this Amendment No. 1 shall be effective when executed
and delivered by the parties hereto.
23. Except as amended and modified by this Amendment No. 1, all other
terms of the Stock Purchase Agreement shall remain unchanged.
11
<PAGE>
24. Nothing in this Agreement (or in the Stock Purchase Agreement as
amended hereby) shall affect the obligations of the Company under the Amended
and Restated Credit Agreement, dated as of August 31, 1994 between the Company,
the lenders named therein, Chase Bank, as agent, and ABN Amro, as co-agent, to
have all indebtedness thereunder paid in full (or, in the case of letter of
credit liabilities, cash collateralized) on the Closing Date.
25. By executing this Amendment No. 1, Chase Investment agrees to be
bound by the terms of the Stock Purchase Agreement, as amended hereby, in its
entirety, as if Chase Investment were party to the Stock Purchase Agreement on
the date of its execution.
26. This Amendment No. 1 may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same instrument.
27. This Amendment No. 1 shall be governed by, construed and enforced
in accordance with the laws of the State of Delaware, without regard to the
principles thereof relating to conflict of laws, and the parties hereto hereby
consent to the jurisdiction of the courts of the State of Delaware over such
parties.
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
UNIVERSAL OUTDOOR, INC.
By_____________________________
Name:
Title:
INSTITUTIONAL SELLERS
WIND POINT PARTNERS II, L.P.
By_____________________________
Name:
Title:
MARQUETTE VENTURE PARTNERS, L.P.
By Marquette Venture Associates, L.P.
Its General Partner
By Marquette Management Partners
By_____________________________
_____________________________
A General Partner
CHASE EQUITY ASSOCIATES, L.P.
By Chase Capital Partners
Its General Partner
By_____________________________
A General Partner
<PAGE>
BANC ONE VENTURE CORPORATION
By_____________________________
Name:
Title:
CHASE MANHATTAN INVESTMENT
HOLDINGS, INC.
By_____________________________
Name:
Title:
MANAGEMENT SHAREHOLDERS
___________________________
JEFF EVRARD
___________________________
LON BINDER
___________________________
ROY SCHROEDER
ESTATE OF PAUL F. BARKER
By_____________________________
Name:
Title:
___________________________
BRUCE DAVIES
___________________________
LEE ANN MULLER
___________________________
R. JAMES SCHWARZ
<PAGE>
AMENDED SCHEDULE 3(c)
SHARES OWNED
CLASS A-1 CLASS A-2 CLASS B
SELLER COMMON COMMON COMMON
Wind Point
Partners II, LP 20,726
Marquette Venture
Partners LP 19,344
Chase Equity
Associates, L.P. 3,900 15,444
Banc One Venture
Corporation 12,090
Chase Manhattan
Investment Holdings,
Inc.1 5,000
MANAGEMENT
SHAREHOLDERS
Jeff Evrard 411.74 3,084.16
Mahoning National Bank as
Custodian of the John Evrard
Individual Retirement Account 244.56
Lon Binder 103.63 700.00
Mahoning National Bank as
Custodian of the Lon Binder
Individual Retirement Account 68.78
Roy Schroeder 103.63 196.43
Paul F. Barker 91.88
----------
5,000 shares of Class A Common Stock will be acquired on or prior to the
Closing Date by Chase through the exercise of the Warrants pursuant to
Section 6(j) of the Stock Purchase Agreement, and the representations
contained in Section 3(c) made by Chase with respect to such shares are
made as of the date upon which the Warrants are exercised and such shares
of Class A Common Stock are obtained by Chase and as of the Closing Date.
<PAGE>
CLASS A-1 CLASS A-2 CLASS B
SELLER COMMON COMMON COMMON
Mahoning National Bank as
Custodian of the Paul F.
Barker Individual Retirement
Account 138.17
Bruce Davies 150.99 57.34
Mahoning National Bank as
Custodian of the Bruce Davies
Individual Retirement Account 10.86
Mahoning National Bank as
Custodian of the Allison
Davies Individual Retirement
Account 10.86
Lee Ann Muller 600.00
R. James Schwarz 100.00
TOTAL 57,303.22 20,444 4,829.81
<PAGE>
EXHIBIT B-1
Form of Opinion of Counsel to Chase Investment
1. Chase Investment is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to own the Shares owned by it and to sell
such Shares to the Purchaser pursuant to the Stock Purchase Agreement and
otherwise perform its obligations under the Escrow Agreement and the Stock
Purchase Agreement.
2. Chase Investment has the requisite corporate or other power and
authority to enter into the Stock Purchase Agreement and the Escrow Agreement
and to perform its obligations thereunder. The execution and delivery of the
Stock Purchase Agreement and the Escrow Agreement and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
corporate or other action on the part of Chase Investment, and does not conflict
with any of Chase Investment's organizational documents, or with any judgment or
decree to which Chase Investment is bound.
3. The Stock Purchase Agreement and the Escrow Agreement (assuming
the due authorization, execution and delivery thereof by the parties thereto
other than Chase Investment) constitute the legal, valid and binding obligations
of Chase Investment, enforceable against it in accordance with their terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing, regardless of whether enforcement is sought in a proceeding at law or
in equity.
<PAGE>
Annex II
Sellers' Distribution Schedule
<PAGE>
SECOND RESTATED ARTICLES OF INCORPORATION
OF
UNIVERSAL OUTDOOR, INC.
ARTICLE ONE: The name of the Corporation is UNIVERSAL OUTDOOR, INC. (the
"Corporation") incorporated on June 12, 1975.
ARTICLE TWO: The name and address of the registered agent and its registered
office are:
Paul G. Simon
321 North Clark Street
Suite 1010
Chicago, Illinois 60610
Cook County
AMENDED
ARTICLE THREE: The purpose or purposes for which the Corporation is organized
are:
To engage in the selling and placing of space for all forms of
billboard, sign and display advertising; to act as agent, broker,
representative, or in any other capacity, for others in the sale
of space for advertising purposes; and to do a general
advertising business in all its branches.
To manufacture, install, supply, maintain, lease and operate
billboard sign boards and all other types of signs; and to
acquire businesses of one or more so engaged.
To manufacture, buy, sell, job, trade in or otherwise deal in
goods, wares and merchandise of every kind, nature and
description.
To do all things proper, incidental and conducive to the
attainment of such purposes.
To engage in the transaction of any or all lawful business for
which the Corporation may be incorporated under the Illinois
Business Corporation Act.
<PAGE>
ARTICLE FOUR: The authorized shares shall be:
<TABLE>
<CAPTION>
CLASS PAR VALUE NUMBER OF SHARES
----- PER SHARE AUTHORIZED
--------- ----------------
<S> <C> <C>
Common $0.01 1,000,000
</TABLE>
ARTICLE FIVE: The number of shares issued as of the date hereof, and the amount
of paid-in capital of the Corporation are:
<TABLE>
<CAPTION>
NUMBER OF AMOUNT OF
PAR VALUE SHARES PAID-IN
CLASS PER SHARE ISSUED CAPITAL
----- --------- --------- ---------
<S> <C> <C> <C>
Common $0.01 10,000 $3,193,794
</TABLE>
AMENDED
ARTICLE SIX: Paragraph 1: The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors
except as otherwise required by law. The number of directors
constituting the entire Board of Directors of the Corporation
shall be not less than four nor no more than seven, as set forth
in the By-Laws.
Paragraph 2: In all elections for directors, every Common
shareholder shall have the right to vote the number of shares
owned by such shareholders for as many persons as there are
directors to be elected. Shareholders shall have no right to
cumulate such votes.
Paragraph 3: Subject to paragraph 4 of this ARTICLE SIXTH or as
otherwise required by law, the board of Directors shall take
action in the manner provided for in the By-Laws of the
Corporation.
Paragraph 4: Except as otherwise provided by law, any Material
Event (as defined herein) shall require the unanimous approval of
the members of the Board of Directors of the Corporation present
at a duly called meeting (or to the extent permitted in the By-
Laws, by the unanimous written consent of all of the directors)
of the Board of directors at which a
<PAGE>
quorum is present.
Paragraph 5: For purposes of these Articles, a "Material Event"
shall mean (i) any amendment to any provision of these Articles
or to the By-Laws of the Corporation, (ii) the approval of the
annual budget (or revision thereto) of the Corporation, (iii) any
sale, merger, restructuring, liquidation, or other fundamental
transaction of the Corporation or a sale or disposition of a
substantial portion of its assets (including a sale of any
subsidiary of the Corporation or a sale or disposition of a
substantial portion of the assets of any subsidiary of the
Corporation), (iv) the filing of any bankruptcy petition by or on
behalf of the Corporation or any of its subsidiaries, (v) the
payments of dividends or distributions to holders of capital
stock of the Corporation, (vi) a public offering of securities of
the Corporation, (vii) any acquisition, capital expenditure or
incurrence of indebtedness, including guarantees, or other
obligation, in excess of $2,000,000, (viii) the replacement of
the Corporation's or any of its subsidiaries' outside
accountants, (ix) any transactions with affiliates of the
Corporation (other than with any of its subsidiaries or Universal
Outdoor Holdings, Inc. ("Holdings"), (x) the nomination of any
director to the Board of Directors, (xi) any increase or decrease
in the number of members of the Board of Directors, (xii) the
removal of a director, with or without cause, from the Board of
Directors, and (xii) the filling of any vacancies on the Board of
Directors.
Paragraph 6: The Board of Directors shall use its best efforts to
cause the Board of Directors of the Corporation to be comprised
at all times of the directors as are the directors of Holdings at
such time.
ARTICLE SEVEN: Dividends may be declared and paid upon the Common Stock out of
the assets of the Corporation legally available therefor, when
and as determined by the Board of Directors, in its discretion.
ARTICLE EIGHT: The holders of the Common Stock shall be entitled to receive, in
the event of any liquidation, dissolution or winding up of the
Corporation, all of the assets of the Corporation available for
distribution to shareholders. In such event, each holder of the
Common Stock shall receive such fraction of such assets as shall
be equal the total number of shares of Common Stock held by
such holder divided by the total number of shares of
<PAGE>
Common Stock then issued and outstanding.
AMENDED
ARTICLE NINE: Any action by the Board of Directors of the Corporation or by the
Corporation with respect to the appointment, removal or
replacement of each of the chief executive officers of the
Corporation who shall be the Chairman of the Board and the
President, respectively, of the Corporation shall require the
approval of the holders of a majority of the outstanding shares
of Common Stock. At all times, the Chairman of the Board and the
President of the Corporation, respectively, shall be the persons
who are the Chairman of the Board and the President of Holdings,
respectively. In the event that the Chairman of the Board or the
President of Holdings is removed or replaced, the Chairman of the
Board or President of the Corporation, as the case may be, shall
be replaced pursuant to the provisions of the first sentence of
this Article Ninth.
ARTICLE TEN: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make,
alter or repeal the By-Laws of the Corporation; PROVIDED, THAT no
by-law shall at any time be inconsistent with any provision of
these Articles.
<PAGE>
AMENDED AND RESTATED
BY-LAWS
OF
UNIVERSAL OUTDOOR, INC.
ARTICLE I.
OFFICES
The corporation shall continuously maintain in the State of Illinois a
registered office and a registered agent whose office is identical with such
registered office, and may have other offices within or without the state.
ARTICLE II.
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. An annual meeting of the shareholders
shall be held on the second Monday in January of each year for the purpose of
electing directors and for the transaction of such other business as may come
before the meeting. In the absence of a determination to the contrary, the
annual meeting shall be held at the offices of the corporation.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders
may be called either by the chairman of the board, president, by the board of
directors or by the holders of not less than one-fifth of all the outstanding
shares of the corporation entitled to vote on the matter for which the meeting
is called, for the purpose or purposes stated in the call of the meeting. A
special meeting shall be held at such place as may be determined by resolution
of the board of directors or, in the absence of such a determination, at the
offices of the corporation.
SECTION 3. NOTICE OF MEETINGS. Written notice stating the place,
date, and hour of the meeting, and in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered not less than
ten nor more than forty days before the date of
<PAGE>
the meeting, or in the case of a merger, consolidation, share exchange,
dissolution or sale, lease or exchange of assets not less than twenty nor more
than forty days before the date of the meeting, either personally or by mail, by
or at the direction of the chairman of the board, president, or the secretary,
or the officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, addressed to the shareholder
at his or her address as it appears on the records of the corporation, with
postage thereon prepaid. When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken.
SECTION 4. FIXING OF RECORD DATE. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or to receive payment of any dividend, or other distribution
or allotment of any rights, or to exercise any rights in respect of any change,
conversion or exchange of shares or for the purpose of any other lawful action,
the board of directors of the corporation may fix in advance a record date which
shall not be more than forty days and, for a meeting of shareholders, not less
than ten days, or in the case of a merger, consolidation, share exchange,
dissolution or sale, lease or exchange of assets not less than twenty days,
before the date of such meeting. If no record date is fixed, the record date
for the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders shall be the date on which notice of the meeting is
mailed, and the record date for the determination of shareholders for any other
purpose shall be the date on which the board of directors adopts the resolution
relating thereto. A determination of shareholders of record entitled to notice
of or to vote at a meeting of shareholders shall apply to any adjournment of the
meeting.
SECTION 5. VOTING LISTS. The officer or agent having charge of the
transfer books for shares of the corporation shall make, within ten days after
the record date for a meeting of shareholders or ten days before such meeting,
whichever is earlier, a complete list of the shareholders entitled to vote at
such meeting, arranged in alphabetical order, showing the address of and the
number of shares registered in the name of each shareholder, which list, for a
period of ten days prior
2
<PAGE>
to such meeting, shall be kept on file at the registered office of the
corporation and shall be open to inspection by any shareholder, and to copying
at the shareholder's expense, at any time during usual business hours. Such
list shall also be produced and kept open at the time and place of the meeting
and may be inspected by any shareholder during the whole time of the meeting.
The original share ledger or transfer book, or a duplicate thereof kept in the
State of Illinois, shall be prima facie evidence as to who are the shareholders
entitled to examine such list or share ledger or transfer book or to vote at any
meeting of shareholders.
SECTION 6. QUORUM. The holders of a majority of the outstanding
shares of the corporation entitled to vote on a matter, present in person or
represented by proxy, shall constitute a quorum at any meeting of shareholders;
provided that if less than a majority of the outstanding shares are represented
at said meeting, a majority of the shares so represented may adjourn the meeting
at any time without further notice. If a quorum is present, the affirmative
vote of the majority of the shares represented at the meeting shall be the act
of the shareholders, unless the vote of a greater number of voting by classes is
required by the Illinois Business Corporation Act of 1983, the articles of
incorporation or these by-laws. At any adjourned meeting at which a quorum
shall be present, any business may be transacted which might have been
transacted at the original meeting. Withdrawal of shareholders from any meeting
shall not cause failure of a duly constituted quorum at that meeting.
SECTION 7. PROXIES. A shareholder may appoint a proxy to vote or
otherwise act for him or her by signing an appointment form and delivering it to
the person so appointed.
No proxy shall be valid after the expiration of 11 months from the
date thereof unless otherwise provided in the proxy. Every proxy continues in
full force and effect until revoked by the person executing it prior to the vote
pursuant thereto, except as otherwise provided herein. Such revocation may be
effected by a writing delivered to the corporation stating that the proxy is
revoked or by a subsequent proxy executed by, or by attendance at the meeting
and voting in person by, the person executing the proxy. The dates contained on
the forms of proxy presumptively determine the order of execution, regardless of
the postmark dates on the envelopes in which they are mailed.
3
<PAGE>
An appointment of the proxy is revocable by the shareholder unless the
appointment form conspicuously stated that it is irrevocable and the appointment
is coupled with an interest in the shares or in the corporation generally. An
appointment made irrevocable as provided herein becomes revocable when the
interest in the proxy terminates. A transferee for value of shares subject to
an irrevocable appointment may revoke the appointment if the transferee was
ignorant of its existence when the share were acquired and both the existence of
the appointment and its revocability were not noted conspicuously on the
certificate (or information statement for shares without certificates)
representing the shares.
The death or incapacity of the shareholder appointing a proxy does not
revoke the proxy's authority unless notice of the death or incapacity is
received by the officer or agent who maintains the corporation's share transfer
book before the proxy exercises his or her authority under the appointment.
Unless the appointment of a proxy contains an express limitation on
the proxy's authority, a corporation may accept the proxy's vote or other action
as that of the shareholder making the appointment. If the proxy appointed fails
to vote or otherwise act in accordance with the appointment, the shareholder is
entitled to such legal or equitable relief as is appropriate in the
circumstances.
SECTION 8. VOTING OF SHARES. Except as otherwise provided in the
articles of incorporation or the Illinois Business Corporation Act of 1983, each
outstanding voting share, regardless of class, shall be entitled to one vote
upon each matter submitted to vote at a meeting of shareholders.
SECTION 9. VOTING OF SHARES BY CERTAIN HOLDERS. Shares of the
corporation's own shares held by the corporation in fiduciary capacity may be
voted and shall be counted in determining the total number of outstanding shares
entitled to vote at any given time.
Shares registered in the name of another corporation, domestic or
foreign, may be voted by any officer agent, proxy or other legal representative
authorized to vote such shares under the law of incorporation of such
corporation. The chairman of the board or president or other person holding the
position of chief executive officer of such other corporation may be treated as
authorized to vote such shares, together with any other
4
<PAGE>
person indicated and any other holder of an office indicated by the corporate
shareholder to the corporation as a person or an officer authorized to vote such
shares. Such persons and offices indicated shall be registered on the transfer
books for shares and included in any voting list prepared in accordance with
Section 5 of this Article.
Shares registered in the name of a deceased person, a minor ward or a
person under legal disability may be voted by his or her administrator,
executor, or court appointed guardian, either in person or by proxy without a
transfer of such shares into the name of such administrator, executor, or court
appointed guardian. Shares registered in the name of a trustee may be voted by
him or her, either in person or by proxy.
Shares registered in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his or her name if authority so
to do is contained in an appropriate order of the court by which such receiver
was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Any number of shareholders may create a voting trust for the purpose
of conferring upon a trustee or trustees the right to vote or otherwise
represent their share, for a period not to exceed ten years, by entering into a
written voting trust agreement specifying the terms and conditions of the voting
trust, and by transferring their shares to such trustee or trustees for the
purpose of the agreement. Any such trust agreement shall not become effective
until a counterpart of the agreement is deposited with the corporation at its
registered office. The counterpart of the voting trust agreement so deposited
with the corporation shall be subject to the same right of examination by a
shareholder of the corporation, in person or by agent or attorney, as is the
record of the shareholders of the corporation, and shall be subject to
examination by any holder of a beneficial interest in the voting trust, either
in person or by agent or attorney, at any reasonable time for any proper
purpose.
5
<PAGE>
SECTION 10. INSPECTORS. At any meeting of shareholders, the
presiding officer may, or upon the request of any shareholder shall, appoint one
or more persons as inspectors for such meeting.
Such inspectors shall ascertain and report the number of shares
represented at the meeting, based upon their determination of the validity and
effect of proxies; count all votes and report the results; and do such other
acts as are proper to conduct the election and voting with impartiality and
fairness to all the shareholders.
Each report of an inspector shall be in writing and signed by him or
her or by a majority of them if there be more than one inspector acting at such
meeting. If there is more than one inspector, the report of a majority shall be
the report of the inspectors. The report of the inspector or inspectors on the
number of shares represented at the meeting and the results of the voting shall
be prima facie evidence thereof.
SECTION 11. INFORMAL ACTION BY SHAREHOLDERS. Any action required to
be taken at any annual or special meeting of the shareholders of the
corporation, or any other action which may be taken at a meeting of the
shareholders, may be taken without a meeting and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed (i) if 5 days prior
notice of the proposed action is given in writing to all of the shareholders
entitled to vote with respect to the subject matter thereof, by the holders of
outstanding shares having not less then the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voting or (ii) by all of the
shareholders entitled to vote with respect to the subject matter thereof.
Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given in writing to
those shareholders who have not consented in writing. In the event that the
action which is consented to is such as would have required the filing of a
certificate under any section of the Illinois Business Corporation Act of
1983 if such action had been voted on by the shareholders at a meeting
thereof, the certificate filed under such section shall state, in lieu of any
statement required by such section concerning any vote of shareholders, that
written consent has been given in accordance with the provisions of Section
7.10 of the Illinois Business Corporation Act of
6
<PAGE>
1983 and that written notice has been given as provided in such Section 7.10.
SECTION 12. VOTING BY BALLOT. Voting on any question or in any
election may be by voice unless the presiding officer shall order or any
shareholder shall demand that voting be by ballot.
ARTICLE III.
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the
corporation shall be managed by or under the direction of its board of directors
except as otherwise required by law.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of
directors of the corporation shall be four (4). Except as provided in Section
13 of this Article, each director shall hold office until the next annual
meeting of shareholder or until his successor shall have been elected and
qualified. Directors need not be residents of the State of Illinois or
shareholders of the corporation. The number of directors may be increased or
decreased from time to time, pursuant to the provisions of the articles of
incorporation, by the amendment of this section; but no decrease shall have the
effect of shortening the term of any incumbent director.
SECTION 3. REGULAR MEETINGS. A regular meeting of the board of
directors shall be held without other notice than these by-laws, immediately
after the annual meeting of shareholders. The board of directors may provide,
by resolution, the time and place for the holding of additional regular meetings
without other notice than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board of
directors may be called by or at the request of the chairman of the board,
president or any two directors. The person or persons authorized to call
special meetings of the board of directors may fix any place as the place for
holding any special meeting of the board of directors called by them.
SECTION 5. NOTICE. Notice of any special meeting shall be given at
least ten (10) days previous thereto by written notice to each director at his
business address as it appears in records of the corporation. If mailed, such
notice shall be deemed to be delivered
7
<PAGE>
when deposited in the United States mail so addressed, with postage thereon
prepaid. If notice be given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegram company. The
attendance of a director at any meeting shall constitute a waiver of notice
of such meeting, except where a director attends a meeting for the express
purpose of objecting to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the board of
directors need be specified in the notice or waiver of notice of such meeting.
SECTION 6. QUORUM. At all meetings of the board one-half of the
directors shall constitute a quorum for the transaction of business, but in the
event that a Material Event (as defined in the Second Amended and Restated
Certificate of Incorporation of Universal Outdoor Holdings, Inc. ("Holdings"))
comes before the directors of the corporation for approval, one of the directors
present at such meeting must be the director who is also a Class B Common Stock
Director (as such term is defined in the Second Amended and Restated Certificate
of Incorporation of Holdings) of Holdings in order to constitute a quorum. In
the event that no director of the corporation is also the Class B Common Stock
Director of Holdings, then at all meetings of the board of directors where a
Material Event comes before the directors of the corporation for approval, the
entire board of directors shall be required to constitute a quorum for the
transaction of business. In each of the foregoing cases, if a quorum is not
present at said meeting, a majority of the directors present may adjourn the
meeting at any time without further notice. Unless specifically prohibited by
the articles of incorporation or these by-laws, members of the board of
directors or of any committee of the board of directors may participate in and
act at any meeting of such board or committee through the use of a conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in such meeting
shall constitute attendance and presence in person at the meeting of the person
or persons so participating.
SECTION 7. MANNER OF ACTING. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the board of directors, unless the act of a greater number is required by
statute or these by-laws PROVIDED, HOWEVER, that certain specified actions shall
require the unanimous approval of
8
<PAGE>
the directors present at a meeting at which a quorum is present as set forth in
the articles of incorporation.
SECTION 8. VACANCIES. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by the unanimous approval of the directors present at a meeting at which there
is a quorum, and each director so chosen shall hold office until his successor
is elected and qualified, or until his earlier resignation or removal. If there
are no directors in office, then an election of directors may be held in the
manner provided by statute.
SECTION 9. ACTION WITH A MEETING. Unless specifically prohibited by
the articles of incorporation or these by-laws, any action required to be taken
at a meeting of the board of directors, or any other action which may be taken
at a meeting of the board of directors, or of any committee thereof may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all the directors entitled to vote with respect to the
subject matter thereof, or by all the members of such committee, as the case may
be. Any such consent signed by all directors or all the members of the
committee shall have the same effect as a unanimous vote, and may be stated as
such in any document filed with the Secretary of State or with anyone else.
SECTION 10. COMPENSATION. The board of directors, by the affirmative
vote of a majority of directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers, or otherwise. By resolution of the board of directors, the directors
may be paid their expenses, if any, of attendance at each meeting of the board.
No such payment previously mentioned in this section shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
SECTION 11. PRESUMPTION OF ASSENT. A director of the corporation who
is present at a meeting of the board of directors at which action on any
corporate matter is taken shall be conclusively presumed to have assented to the
action taken unless his dissent shall be entered in the minutes of the meeting
or unless he shall file his written dissent to such action with the person
acting as the secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered mail to the secretary of the corporation
immediately after the adjournment of the meeting. Such right to
9
<PAGE>
dissent shall not apply to a director who voted in favor of such action.
SECTION 12. COMMITTEES. A majority of the directors may create one
or more committees and appoint members of the board of directors to serve on the
committee or committees. Each committee shall have two or more members, who
serve at the pleasure of the board.
(a) Unless the appointment by the board of directors requires a
greater number, a majority of any committee shall constitute a quorum and a
majority of a quorum is necessary for committee action. A committee may act by
unanimous consent in writing without a meeting, and subject to the provisions of
the by-laws or action by the board of directors, the committee by majority vote
of its members shall determine the time and place of meetings and the notice
required therefor.
(b) To the extent specified by the board of directors or in the
articles of incorporation or these by-laws, each committee may exercise the
authority of the board of directors under Section 8.05 of the Illinois Business
Corporation Act of 1983; provided, however, a committee may not:
(1) authorize distributions;
(2) approve or recommend to shareholders any act required by law
to be approved by shareholders;
(3) fill vacancies on the board or on any of its committees;
(4) elect or remove officers or fix the compensation of any
member of the committee;
(5) adopt, amend or repeal these by-laws;
(6) approve a plan of merger not requiring shareholder approval;
(7) authorize or approve reacquisition of shares, except
according to a general formula or method prescribed by the board;
(8) authorize or approve the issuance or sale, or contract for
sale, of shares or determine the designation and relative rights, preferences,
and limitations of a series of shares, except that the board may direct a
committee to fix the specific terms of the issuance or sale or contract for sale
of the number of shares
10
<PAGE>
to be allocated to particular employees under an employee benefit plan; or
(9) amend, alter, repeal, or take action inconsistent with any
resolution or action of the board of directors when the resolution or action of
the board of directors provides by its terms that it shall not be amended,
altered or repealed by action of a committee.
Vacancies in the membership of the committee shall be filled by the board of
directors at a regular or special meeting of the board of directors. The
executive committee shall keep regular minute of its proceedings and report the
same to the board when required.
SECTION 13. REMOVAL OF DIRECTORS. Any director may be removed, with
or without cause, (i) by unanimous approval of the directors present at a
meeting at which a quorum is present as set forth in the articles of
incorporation, or (ii) at a meeting of shareholders by the affirmative vote of
the holders of a majority of the outstanding shares then entitled to vote at an
election of directors, except as follows:
(1) No director shall be removed at a meeting of shareholders
unless the notice of such meeting shall state that a purpose of the meeting is
to vote upon the removal of one or more directors named in the notice. Only the
named director or directors may be removed at such meeting.
(2) In the case the corporation provides for cumulative voting,
if less than the entire board is to be removed, no director may be removed at a
meeting of shareholders, with or without cause, if the votes cast against his or
her removal would be sufficient to elect him or her if then cumulatively voted
at an election of the entire board of directors.
(3) If a director is elected by a class or series of shares, he
or she may be removed only by the shareholders of that class or series.
The above provisions shall not preclude the circuit court of the
county in which the corporation's registered office is located from removing a
director of the corporation from office in a proceeding commenced either by the
corporation or by shareholders of the corporation holding at least 10 percent of
the outstanding shares of any class if the court finds (1) the director is
engaged in fraudulent or dishonest conduct or has grossly abused his or her
position to the detriment of
11
<PAGE>
the corporation, and (2) removal is in the best interest of the corporation. If
the court removes a director, it may bar the director from reelection for a
period prescribed by the court. If such a proceeding is commenced by the
shareholders, they shall make the corporation a party defendant.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER. The officers of the corporation shall be a
chairman of the board, president, a treasurer, a secretary, and such vice
presidents, assistant treasurers, assistant secretaries or other officers as may
be elected by the board of directors. Any two or more offices may be held by
the same person.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the
corporation shall be elected annually by the board of directors at the first
meeting of the board of directors held after each annual meeting of
shareholders, PROVIDED, HOWEVER, that any action by the board of directors or by
the corporation with respect to the appointment of the executive officers of the
corporation shall require the approval of the holders of a majority of the
outstanding voting shares of the corporation. At all times, the Chairman of the
Board and the President of the corporation, respectively, shall be the persons
who are the chairman of the board and president of Holdings, respectively. In
the event that the chairman of the board or president of Holdings is removed or
replaced, the Chairman of the Board or President of the corporation, as the case
may be, shall be replaced pursuant to the provisions of Article NINTH of the
articles of incorporation of the corporation. If the election of officers shall
not be held at such meeting, such election shall be held as soon thereafter as
conveniently may be. Vacancies may be filled or new offices created and filled
at any meeting of the board of directors, subject to the first sentence of this
section. Each officer shall hold office until his or her successor shall have
been duly elected and shall have qualified or until his or her death or until he
or she shall resign or shall have been removed in the manner hereinafter
provided. Election of an officer shall not of itself create contract rights.
SECTION 3. REMOVAL. Any officer elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interests of the corporation would be served thereby, but
12
<PAGE>
such removal shall be without prejudice to the contract rights, if any, of the
person so removed, PROVIDED, HOWEVER, that any action by the board of directors
or by the corporation with respect to the removal or replacement of the
executive officers of the corporation shall require the approval of the holders
of a majority of the outstanding voting shares of the corporation.
SECTION 4. EXECUTIVE OFFICERS. The executive officers of the
Corporation shall be two in number and shall be granted the powers as stated
herein.
4(a) CHAIRMAN OF THE BOARD. The chairman of the board shall be
one of the principal executive officers of this corporation. Subject
to the direction and control of the board of directors, the chairman
shall have the authority to manage the business of the corporation;
see that the resolutions and directions of the board of directors are
carried into effect in all instances except where such responsibility
is specifically designated to some other officer by the board of
directors; enforce the by-laws of this corporation and discharge all
duties incident to his office which are required by law and such other
duties as may be specifically prescribed from time to time by the
board of directors. He shall cause to be called regular and special
meetings of the shareholders and directors. Except in those instances
in which the authority to execute is expressly delegated to another
officer or agent of the corporation, the chairman of the board may
execute for the corporation certificates for its shares and any
contracts, deeds, mortgages, bonds, or other instruments which the
board of directors has authorized to be executed and he may accomplish
such execution either under or without the seal of the corporation and
either individually or with the secretary, any assistant secretary, or
other officers authorized by the Board of directors.
4(b) PRESIDENT. The president shall be one of the principal
executive officers of this corporation. Subject to the direction and
control of the board of directors, the president shall have the
authority to manage the business of the corporation; see that the
resolutions and directions of the board of directors are carried into
effect in all instances except where such responsibility is
specifical-
13
<PAGE>
ly designated to some other officer by the board of directors; enforce
the by-laws of this corporation and discharge all duties incident to
his office which are required by law and such other duties as may be
specifically prescribed from time to time by the board of directors.
He shall cause to be called regular and special meetings of the
shareholders and directors. Except in these instances in which the
authority to execute is expressly delegated to another officer or
agent of the corporation, the chairman of the board may execute for
the corporation certificates for its shares and any contracts, deeds,
mortgages, bonds, or other instruments which the board of directors
has authorized to be executed and he may accomplish such execution
either under or without the seal of the corporation and either
individually or with the secretary, any assistant secretary, or other
officers authorized by the board of directors.
SECTION 5. THE VICE-PRESIDENT(S). The vice-president(s), if any,
shall assist the president in the discharge of his or her duties as the
president may direct and shall perform such other duties as from time to time
may be assigned to him by the president or by the board of directors. In the
absence of the president or in the event of his inability or refusal to act, the
vice-president (or in the event there be more than one vice-president, the vice-
presidents in the order designated by the board of directors, or by the
president if the board of directors has not made such designation, or in the
absence of any designation, then in the order of seniority of tenure as vice-
president) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. Except in those instances in which the authority to execute is
expressly delegated to another officer or agent of the corporation or a
different mode of execution is expressly prescribed by the board of directors or
these by-laws, the vice-president (or each of them if there are more than one)
may execute for the corporation certificates for its shares and any contracts,
deeds, mortgages, bonds or other instruments which the board of directors has
authorized to be executed, and he or she may accomplish such execution either
under or without the seal of the corporation and either individually or with the
secretary, any assistant secretary, or any other officer thereunto authorized by
the board of directors, according to the requirements of the form of the
instrument.
14
<PAGE>
SECTION 6. THE TREASURER. The treasurer shall be the principal
accounting and financial officer of the corporation. He or she shall: (a) have
charge of and be responsible for the maintenance of adequate books of account
for the corporation; (b) have charge and custody of all funds and securities of
the corporation, and be responsible therefor and for the receipt and
disbursement thereof; and (c) perform all the duties incident to the office of
treasurer and such other duties as from time to time may be assigned to him or
her by the president or by the board of directors. If required by the board of
directors, the treasurer shall give a bond for the faithful discharge of his or
her duties in such sum and with such surety or sureties as the board of
directors may determine.
SECTION 7. THE SECRETARY. The secretary shall: (a) record the
minutes of the shareholders' and of the board of directors' meetings in one or
more books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these by-laws or as required by law; (c) be
custodian of the corporate records and of the seal of the corporation; (d) keep
a register of the post-office address of each shareholder which shall be
furnished to the secretary by such shareholder; (e) sign with the president, or
a vicepresident, or any other officer thereunto authorized by the board of
directors, certificates for shares of the corporation, the issue of which shall
have been authorized by the board of directors, and any contracts, deeds,
mortgages, bonds, or other instruments which the board of directors has
authorized to be executed, according to the requirements of the form of the
instrument; except when a different mode of execution is expressly prescribed by
the board of directors or these by-laws; (f) have general charge of the stock
transfer books of the corporation; (g) have authority to certify the by-laws,
resolutions of the shareholders and board of directors and committees thereof,
and other documents of the corporation as true and correct copies thereof, and
(h) perform all duties incident to the office of secretary and such other duties
as from time to time may be assigned to him or her by the president or by the
board of directors.
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The
assistant treasurers and assistant secretaries shall perform such duties as
shall be assigned to them by the treasurer or the secretary, respectively, or by
the president or the board of directors. The assistant secretaries may sign
with the president, or a vice-president, or any other officer thereunto autho-
15
<PAGE>
rized by the board of directors, certificates for shares of the corporation, the
issue of which shall have been authorized by the board of directors, and any
contracts, deeds, mortgages, bonds, or other instruments which the board of
directors has authorized to be executed, according to the requirements of the
form of the instrument, except when a different mode of execution is expressly
prescribed by the board of directors or these by-laws. The assistant treasurers
shall respectively, if required by the board of directors, give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
board of directors shall determine.
SECTION 9. SALARIES. The salaries of the officers shall be fixed from
time to time by the board of directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The board of directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for the payment of money, notes, or other evidences of indebtedness issued in
the name of the corporation, shall be signed by such officer or officers, agent
or agents of the corporation and in such manner as shall from time to time be
determined by resolution of the board of directors.
SECTION 4. DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the board of directors
may select.
16
<PAGE>
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. The issued shares of the
corporation shall be represented by certificates or shall be uncertified shares.
Certificates representing shares of the corporation shall be signed by the
appropriate corporate officers and may be sealed with the seal, or a facsimile
of the seal, of the corporation, if the corporation uses a seal. In case the
seal of the corporation is changed after the certificate is sealed with the seal
or a facsimile of the seal of the corporation, but before it is issued, the
certificate may be issued by the corporation with the same effect as if the seal
had not been changed. If a certificate is countersigned by a transfer agent or
registrar, other than the corporation itself or its employee, any other
signatures or countersignature on the certificate may be facsimiles, In case any
officer of the corporation, or any officer or employee of the transfer agent or
registrar who has signed or whose facsimile signature has been placed upon such
certificate ceases to be an officer of the corporation, or an officer or
employee of the transfer agent or registrar before such certificate is issued,
the certificate may be issued by the corporation with the same effect as if the
officer of the corporation, or the officer or employee of the transfer agent or
registrar had not ceased to be such at the date of its issue.
In the event the corporation authorizes more than one class of stock
every certificate representing shares issued by a corporation shall set forth
upon the face or back of the certificate a full summary or statement of all of
the designations, preferences, qualifications, limitations, restrictions, and
special or relative rights of the shares of each class authorized to be issued,
and, if the corporation is authorized to issue any preferred or special class in
series, the variations in the relative rights and preferences between the shares
of each such series so far as the same have been fixed and determined and the
authority of the board of directors to fix and determine the relative rights and
preferences of subsequent series. Such statement may be omitted from the
certificate if it shall be set forth upon the face or back of the certificate
that such statement, in full, will be furnished by the corporation to any
shareholder upon request and without charge.
17
<PAGE>
Each certificate representing shares shall also state:
(a) That the corporation is organized under the laws of the State of
Illinois.
(b) The name of the person to whom issued.
(c) The number and class of shares, and the designation of the
series, if any, which such certificate represents.
No certificate shall be issued for any share until such share is fully
paid.
Unless otherwise provided by the articles of incorporation or by-laws,
the board of directors of a corporation may provide by resolution that some or
all of any or all classes and series of its shares shall be uncertificated
shares, provided that such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the corporation. Within a
reasonable time after the issuance or transfer of uncertificated shares, the
corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to Section 6.35 of the Illinois Business Corporation Act of 1983.
Except as otherwise expressly provided by law, the rights and obligations of the
holders of uncertificated shared and rights and obligations of the holders of
certificates representing shares of the same class and series shall be
identical.
The name and address of each shareholder, the number and class of
shares held and the date on which the certificates for the shares were issued
shall be entered on the books of the corporation. The person in whose name
shares stand on the books of the corporation shall be deemed the owner thereof
for all purposes as regards the corporation.
SECTION 2. LOST CERTIFICATES. If a certificate representing shares
has allegedly been lost or destroyed the board of directors may in its
discretion, except as may be required by law, direct that a new certificate be
issued upon such indemnification and other reasonable requirements as it may
impose.
SECTION 3. TRANSFERS OF SHARES. Transfers of shares of the
corporation shall be recorded on the books of the corporation and, except in the
case of a lost or destroyed certificate, on surrender for cancellation of
18
<PAGE>
the certificate for such shares. A certificate presented for transfer must be
duly endorsed and accompanied by proper guaranty of signature and other
appropriate assurances that the endorsement is effective. Transfer of an
uncertificated share shall be made on receipt by the corporation of an
instruction from the registered owner or other appropriate person. The
instruction shall be in writing or a communication in such form as may be agreed
upon in writing by the corporation.
ARTICLE VII
FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
board of directors.
ARTICLE VIII
DIVIDENDS
The board of directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law and its articles of incorporation.
ARTICLE IX
SEAL
The corporate seal shall have inscribed thereon the name of the
corporation and the words "Corporate Seal, Illinois." The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any manner
reproduced, provided that the affixing of the corporate seal to an instrument
shall not give the instrument additional force or effect, or change the
construction thereof, and the use of the corporate seal is not mandatory.
ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required to be given under the provisions of
these by-laws or under the provisions of the articles of incorporation or under
the
19
<PAGE>
provisions of the Illinois Business Corporation Act of 1983, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Attendance at any meeting shall constitute waiver of notice
thereof unless the person at the meeting objects to the holding of the meeting
because proper notice was act given.
ARTICLE XI
AMENDMENTS
Unless the power to make, alter, amend or repeal by-laws is reserved
to the shareholders by the articles of incorporation, the by-laws of the
corporation may be made, altered, amended or repealed by the board of directors.
ARTICLE XII
INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
SECTION 1. The corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or who is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment or settlement,
conviction or upon a plea of nolo contenders or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interest of the corporation, and with respect
20
<PAGE>
to any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
SECTION 2. The corporation shall have the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
SECTION 3. To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 1 and 2, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
SECTION 4. Any indemnification under Sections 1 and 2 (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Sections 1 and 2. Such determination shall be
made (a) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (b) if
such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by inde-
21
<PAGE>
pendent legal counsel in a written opinion, or (c) by the shareholders.
SECTION 5. The indemnification provided by this article shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any contract, agreement, vote of shareholders or disinterested directors
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
SECTION 6. The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of
his or her status as such, whether or not the corporation would have the power
to indemnify him or her against such liability under the provisions of this
article.
SECTION 7. Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to repay such amount, unless it
shall ultimately be determined that he or she is entitled to be indemnified by
the corporation as authorized in this Section.
SECTION 8. If the Corporation pays an indemnity or advances expenses
to a director, officer, employee or agent, the corporation shall report the
indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders meeting.
22
<PAGE>
ARTICLE XIII
AMENDMENT TO BY-LAWS
These By-Laws may only be amended, altered, changed or repealed as
provided in the articles of incorporation of the corporation.
<PAGE>
[CONFORMED COPY OF REVOLVING
CREDIT AGREEMENT]
- --------------------------------------------------------------------------------
REVOLVING CREDIT AGREEMENT
among
UNIVERSAL OUTDOOR, INC.,
VARIOUS LENDING INSTITUTIONS,
LA SALLE NATIONAL BANK,
AS CO-AGENT
and
BANKERS TRUST COMPANY,
AS AGENT
----------------------------------
Dated as of March 29, 1996
----------------------------------
$12,500,000
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. Amount and Terms of Credit....................................... 1
1.01 Commitment......................................................... 1
1.02 Minimum Borrowing Amounts, etc..................................... 3
1.03 Notice of Borrowing................................................ 3
1.04 Disbursement of Funds.............................................. 4
1.05 Notes.............................................................. 4
1.06 Conversions........................................................ 5
1.07 Pro Rata Borrowings................................................ 6
1.08 Interest........................................................... 6
1.09 Interest Periods................................................... 7
1.10 Increased Costs, Illegality, etc................................... 8
1.11 Compensation....................................................... 10
1.12 Change of Lending Office........................................... 10
1.13 Replacement of Banks............................................... 10
SECTION 2. Letters of Credit................................................ 11
2.01 Letters of Credit.................................................. 11
2.02 Minimum Stated Amount.............................................. 12
2.03 Letter of Credit Requests; Notices of Issuance..................... 12
2.04 Agreement to Repay Letter of Credit Drawings....................... 13
2.05 Letter of Credit Participations.................................... 13
2.06 Increased Costs.................................................... 16
SECTION 3. Fees; Commitments................................................ 17
3.01 Fees............................................................... 17
3.02 Voluntary Reduction of Commitments................................. 18
3.03 Mandatory Adjustments of Commitments, etc.......................... 18
SECTION 4.
Payments................................................................ 18
4.01 Voluntary Prepayments.............................................. 18
4.02 Mandatory Prepayments.............................................. 19
4.03 Method and Place of Payment........................................ 20
4.04 Net Payments....................................................... 20
(i)
<PAGE>
Page
----
SECTION 5. Conditions....................................................... 22
5.01 Effectiveness...................................................... 22
5.02 Credit Events...................................................... 27
SECTION 6. Representations, Warranties and Agreements....................... 27
6.01 Corporate Status................................................... 28
6.02 Corporate Power and Authority...................................... 28
6.03 No Violation....................................................... 28
6.04 Litigation......................................................... 28
6.05 Use of Proceeds; Margin Regulations................................ 28
6.06 Governmental Approvals............................................. 29
6.07 Investment Company Act............................................. 29
6.08 Public Utility Holding Company Act................................. 29
6.09 True and Complete Disclosure....................................... 29
6.10 Financial Condition; Financial Statements.......................... 30
6.11 Security Interests................................................. 31
6.12 Representations and Warranties in Transaction Documents............ 31
6.13 Consummation of Transaction........................................ 31
6.14 Tax Returns and Payments........................................... 31
6.15 Compliance with ERISA.............................................. 32
6.16 Subsidiaries....................................................... 32
6.17 Patents, etc....................................................... 33
6.18 Pollution and Other Regulations.................................... 33
6.19 Properties......................................................... 34
6.20 Labor Relations.................................................... 34
6.21 Existing Indebtedness.............................................. 35
SECTION 7. Affirmative Covenants............................................ 35
7.01 Information Covenants.............................................. 35
7.02 Books, Records and Inspections..................................... 38
7.03 Insurance.......................................................... 38
7.04 Payment of Taxes................................................... 38
7.05 Consolidated Corporate Franchises.................................. 38
7.06 Compliance with Statutes, etc...................................... 39
7.07 ERISA.............................................................. 39
7.08 Good Repair........................................................ 40
7.09 End of Fiscal Years; Fiscal Quarters............................... 40
7.10 Additional Security; Further Assurances............................ 40
7.11 Corporate Separateness............................................. 41
7.12 Compliance with Environmental Laws................................. 41
(ii)
<PAGE>
Page
----
SECTION 8. Negative Covenants............................................... 42
8.01 Changes in Business................................................ 42
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc............. 42
8.03 Liens.............................................................. 44
8.04 Indebtedness....................................................... 46
8.05 Capital Expenditures............................................... 47
8.06 Investments and Loans.............................................. 47
8.07 Subsidiaries; etc.................................................. 47
8.08 Prepayments of Indebtedness, etc................................... 48
8.09 Dividends, etc..................................................... 48
8.10 Transactions with Affiliates....................................... 49
8.11 Fixed Charge Coverage Ratio........................................ 50
8.12 Minimum Adjusted EBITDA............................................ 50
8.13 Borrower Leverage Ratio............................................ 50
SECTION 9. Events of Default................................................ 51
9.01 Payments........................................................... 51
9.02 Representations, etc............................................... 51
9.03 Covenants.......................................................... 51
9.04 Default Under Other Agreements..................................... 51
9.05 Bankruptcy, etc.................................................... 51
9.06 ERISA.............................................................. 52
9.07 Security Documents................................................. 52
9.08 Holdings........................................................... 53
9.09 Judgments.......................................................... 54
9.10 AF Credit Agreement................................................ 54
SECTION 10. Definitions..................................................... 54
SECTION 11. The Agent....................................................... 77
11.01 Appointment....................................................... 77
11.02 Nature of Duties.................................................. 77
11.03 Lack of Reliance on the Agent..................................... 78
11.04 Certain Rights of the Agent....................................... 78
11.05 Reliance.......................................................... 79
11.06 Indemnification................................................... 79
11.07 The Agent in Its Individual Capacity.............................. 79
11.08 Holders........................................................... 79
11.09 Resignation by the Agent.......................................... 80
(iii)
<PAGE>
Page
----
SECTION 12. Miscellaneous................................................... 80
12.01 Payment of Expenses, etc.......................................... 80
12.02 Right of Setoff................................................... 81
12.03 Notices........................................................... 81
12.04 Benefit of Agreement.............................................. 82
12.05 No Waiver; Remedies Cumulative.................................... 84
12.06 Payments Pro Rata................................................. 84
12.07 Calculations; Computations........................................ 85
12.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of
Jury Trial...................................................... 85
12.09 Counterparts...................................................... 86
12.10 Execution......................................................... 86
12.11 Headings Descriptive.............................................. 86
12.12 Amendment or Waiver............................................... 86
12.13 Survival.......................................................... 87
12.14 Domicile of Loans................................................. 87
12.15 Confidentiality................................................... 87
ANNEX I -- Commitments
ANNEX II -- Bank Addresses
ANNEX III -- Government Approvals
ANNEX IV -- Subsidiaries
ANNEX V -- Properties
ANNEX VI -- Existing Indebtedness
ANNEX VII -- Insurance Policies
ANNEX VIII -- Existing Liens
ANNEX IX -- Management Fees
EXHIBIT A-1 -- Form of Notice of Borrowing
EXHIBIT A-2 -- Form of Letter of Credit Request
EXHIBIT B-1 -- Form of Revolving Note
EXHIBIT B-2 -- Form of Swingline Note
EXHIBIT C -- Pro Forma Calculation for Tested Borrowings
EXHIBIT D -- Adjusted EBITDA
EXHIBIT E -- Form of Assignment Agreement
(iv)
<PAGE>
REVOLVING CREDIT AGREEMENT, dated as March 29, 1996, among UNIVERSAL
OUTDOOR, INC. (the "Borrower"), an Illinois corporation, the lending
institutions listed from time to time on Annex I hereto (each a "Bank" and,
collectively, the "Banks"), LA SALLE NATIONAL BANK, as Co-Agent and BANKERS
TRUST COMPANY, as agent (the "Agent"). Unless otherwise defined herein, all
capitalized terms used herein and defined in Section 10 are used herein as so
defined.
WITNESSETH
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Banks are willing to make available to the Borrower the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.011 COMMITMENT. (a)Subject to and upon the terms and conditions
herein set forth, each Bank severally agrees to make a loan or loans (each a
"Revolving Loan" and, collectively, the "Revolving Loans"), which Revolving
Loans (i) shall be made at any time and from time to time on and after the
Effective Date and prior to the Expiry Date, (ii) except as hereinafter
provided, may, at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or Eurodollar Loans, provided that (x)
all Revolving Loans made as part of the same Borrowing shall, unless otherwise
specifically provided herein, consist of Loans of the same Type and (y)
Revolving Loans maintained as Eurodollar Loans may not be incurred prior to the
Syndication Date, (iii) may be repaid and be reborrowed in accordance with the
provisions hereof and (iv) shall not exceed for any Bank at any time outstanding
that aggregate principal amount which, when combined with the aggregate
outstanding principal amount of all other Revolving Loans of such Bank and with
such Bank's Adjusted Percentage of the sum of (x) the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (y) the outstanding principal amount of
Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time, equals (1) if such Bank is a Non-Defaulting Bank,
the Adjusted Revolving Commitment of such Bank at such time and (2) if such Bank
is a Defaulting Bank, the Revolving Commitment of such Bank at such time.
(b) Subject to and upon the terms and conditions herein set forth,
BTCo in its individual capacity agrees to make at any time and from time to time
on or after the Initial
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Borrowing Date and prior to the Swingline Expiry Date, a loan or loans to the
Borrower (each a "Swingline Loan," and, collectively, the "Swingline Loans"),
which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii)
may be repaid and reborrowed in accordance with the provisions hereof, (iii)
shall not exceed in aggregate principal amount at any time outstanding, when
combined with the aggregate principal amount of all Revolving Loans made by Non-
Defaulting Banks then outstanding and the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Swingline
Loans) at such time, an amount equal to the Adjusted Total Revolving Commitment
then in effect and (iv) shall not exceed in aggregate principal amount at any
time outstanding the Maximum Swingline Amount. BTCo will not make a Swingline
Loan after it has received written notice from the Required Banks that one or
more of the applicable conditions to Credit Events specified in Section 5.02 are
not then satisfied.
(c) On any Business Day, BTCo may, in its sole discretion, give
notice to the Banks that its outstanding Swingline Loans shall be funded with a
Borrowing of Revolving Loans (PROVIDED that each such notice shall be deemed to
have been automatically given upon the occurrence of an Event of Default under
Section 9.05 or upon the exercise of any of the remedies provided in the last
paragraph of Section 9), in which case a Borrowing of Revolving Loans
constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing")
shall be made on the immediately succeeding Business Day by all Banks PRO RATA
based on each Bank's Adjusted Percentage, and the proceeds thereof shall be
applied directly to repay BTCo for such outstanding Swingline Loans. Each Bank
hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by BTCo
notwithstanding (i) that the amount of the Mandatory Borrowing may not comply
with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any
conditions specified in Section 5 are then satisfied, (iii) whether a Default or
an Event of Default has occurred and is continuing, (iv) the date of such
Mandatory Borrowing and (v) any reduction in the Total Revolving Commitment or
the Adjusted Total Revolving Commitment after any such Swingline Loans were
made. In the event that any Mandatory Borrowing cannot for any reason be made
on the date otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under the Bankruptcy Code in respect of the
Borrower), each Bank (other than BTCo) hereby agrees that it shall forthwith
purchase from BTCo (without recourse or warranty) such assignment of the
outstanding Swingline Loans as shall be necessary to cause the Banks to share in
such Swingline Loans ratably based upon their respective Adjusted Percentages,
provided that all interest payable on the Swingline Loans shall be for the
account of BTCo until the date the respective assignment is purchased and, to
the extent attributable to the purchased assignment, shall be payable to the
Bank purchasing same from and after such date of purchase.
1.012 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal amount
of each Borrowing shall not be less than the Minimum Borrowing Amount. More
than one
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Borrowing may be incurred on any day, provided that at no time shall there be
outstanding more than seven Borrowings of Eurodollar Loans hereunder and under
the AF Credit Agreement.
1.013 NOTICE OF BORROWING. (a) Whenever the Borrower desires to incur
Revolving Loans, it shall give the Agent at its Notice Office, prior to 11:00
A.M. (New York time), at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of Eurodollar
Loans and at least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of Base Rate Loans to be made
hereunder. Each such notice (each a "Notice of Borrowing") shall be in the form
of Exhibit A-1 and shall be irrevocable and shall specify (i) the aggregate
principal amount of the Revolving Loans to be made pursuant to such Borrowing,
(ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the
respective Borrowing shall consist of Base Rate Loans or (to the extent
permitted) Eurodollar Loans and, if Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Agent shall promptly give each Bank written
notice (or telephonic notice promptly confirmed in writing) of each proposed
Borrowing, of such Bank's proportionate share thereof and of the other matters
covered by the Notice of Borrowing.
(b)(i) Whenever the Borrower desires to make a Borrowing of Swingline
Loans hereunder, it shall give BTCo, prior to 11:00 A.M. (New York time) on the
day such Swingline Loan is to be made, written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Loan to be made hereunder.
Each such notice shall be irrevocable and shall specify in each case (x) the
date of such Borrowing (which shall be a Business Day) and (y) the aggregate
principal amount of the Swingline Loan to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(c), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section.
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Agent, BTCo (in the case of Swingline Loans) and the Letter of Credit Issuer (in
the case of Letters of Credit), as the case may be, may prior to receipt of
written confirmation act without liability upon the basis of such telephonic
notice, believed by the Agent, BTCo or the Letter of Credit Issuer in good faith
to be from an Authorized Officer of the Borrower. In each such case, the
Borrower hereby waives the right to dispute the Agent's, BTCo's or the Letter of
Credit Issuer's record of the terms of such telephonic notice.
1.014 DISBURSEMENT OF FUNDS. (a) No later than 1:00 P.M. (New York
time) on the date specified in each Notice of Borrowing, each Bank will make
available its PRO RATA share of each Borrowing requested to be made on such date
in the manner provided below,
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provided that all Swingline Loans shall be made available by BTCo no later than
2:00 P.M. on the date requested. All such amounts shall be made available to
the Agent in U.S. dollars and immediately available funds at the Payment Office
and the Agent promptly will make available to the Borrower by depositing to its
account at the Payment Office the aggregate of the amounts so made available in
the type of funds received. Unless the Agent shall have been notified by any
Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Agent its portion of the Borrowing or Borrowings to be made on
such date, the Agent may assume that such Bank has made such amount available to
the Agent on such date of Borrowing, and the Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so)
make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Agent by such Bank and the Agent has
made available same to the Borrower, the Agent shall be entitled to recover such
corresponding amount from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Agent's demand therefor, the Agent shall
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Agent. The Agent shall also be entitled to recover
on demand from such Bank or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Agent to the Borrower to the date such
corresponding amount is recovered by the Agent, at a rate per annum equal to (x)
if paid by such Bank, the overnight Federal Funds Effective Rate or (y) if paid
by the Borrower, the then applicable rate of interest, calculated in accordance
with Section 1.08, for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
the Borrower may have against any Bank as a result of any default by such Bank
hereunder.
1.015 NOTES. (a) The Borrower's obligation to pay the principal of,
and interest on, the Loans made to it by each Bank shall be evidenced (i) if
Revolving Loans, by a promissory note substantially in the form of Exhibit B-1
with blanks appropriately completed in conformity herewith (each a "Revolving
Note" and, collectively, the "Revolving Notes") and (ii) if Swingline Loans, by
a promissory note substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(b) The Revolving Note issued to each Bank shall (i) be executed by
the Borrower, (ii) be payable to the order of such Bank and be dated the
Effective Date, (iii) be in a stated principal amount equal to the Revolving
Commitment of such Bank and be payable in the principal amount of the Revolving
Loans evidenced thereby, (iv) mature on the Expiry Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to mandatory repayment as provided in Section 4.02 and (vii) be entitled
to the benefits of this Agreement and the other Credit Documents.
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(c) The Swingline Note issued to BTCo shall (i) be executed by the
Borrower, (ii) be payable to the order of BTCo and be dated the Effective Date,
(iii) be in a stated principal amount equal to the Maximum Swingline Amount and
be payable in the principal amount of Swingline Loans evidenced thereby, (iv)
mature on the Swingline Expiry Date, (v) bear interest as provided in Section
1.08 in respect of the Base Rate Loans evidenced thereby and (vi) be entitled to
the benefits of this Agreement and the other Credit Documents.
(d) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect the Borrower's obligations in respect of such
Loans.
1.016 CONVERSIONS. The Borrower shall have the option to convert on
any Business Day occurring on and after the Syndication Date all or a portion at
least equal to the applicable Minimum Borrowing Amount of the outstanding
principal amount of the Revolving Loans (with Swingline Loans at all times to be
maintained as Base Rate Loans) into a Borrowing or Borrowings of another Type of
Loan, provided that (i) except as otherwise provided in Section 1.10(b),
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
an Interest Period applicable thereto and no partial conversion of a Borrowing
of Eurodollar Loans shall reduce the outstanding principal amount of the
Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may not be converted
into Eurodollar Loans if any violation of Section 9.01 or any Event of Default
is then in existence to the extent that the Agent or the Required Banks have
determined that any such conversion at such time would be disadvantageous to the
Banks and (iii) Borrowings of Eurodollar Loans resulting from this Section 1.06
shall be limited in number as provided in Section 1.02. Each such conversion
shall be effected by the Borrower giving the Agent at its Notice Office, prior
to 11:00 A.M. (New York time), at least three Business Days' (or two Business
Days', in the case of a conversion into Base Rate Loans) prior written notice
(or telephonic notice promptly confirmed in writing) (each a "Notice of
Conversion") specifying the Loans to be so converted, the Type of Loans to be
converted into and, if to be converted into a Borrowing of Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Agent shall give each
Bank prompt notice of any such proposed conversion affecting any of its Loans.
1.017 PRO RATA BORROWINGS. All Revolving Loans under this Agreement
shall be made by the Banks PRO RATA on the basis of their Adjusted Percentages.
It is understood that no Bank shall be responsible for any default by any other
Bank in its obligation to make Loans hereunder and that each Bank shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Bank to fulfill its commitments hereunder.
1.018 INTEREST. (a) The unpaid principal amount of each Base Rate
Loan shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or
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otherwise) at a rate per annum which shall at all times be the Applicable Base
Rate Margin plus the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the
Applicable Eurodollar Margin plus the relevant Eurodollar Rate.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall bear interest at a rate per annum equal to the Base Rate in
effect from time to time plus the sum of (i) 2% and (ii) the Applicable Base
Rate Margin, provided that no Loan shall bear interest after maturity (whether
by acceleration or otherwise) at a rate per annum less than 2% plus the rate of
interest applicable thereto at maturity.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on the last
Business Day of each February, May, August and November, (ii) in respect of each
Eurodollar Loan, on the last day of each Interest Period applicable thereto and,
in the case of an Interest Period of six months, on the date occurring three
months after the first day of such Interest Period and (iii) in respect of each
Loan, on any prepayment or conversion (other than the prepayment and conversion
of Base Rate Revolving Loans) (on the amount prepaid or converted), at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Agent, upon determining the interest rate for any Borrowing
of Eurodollar Loans for any Interest Period, shall promptly notify the Borrower
and the Banks thereof.
1.019 INTEREST PERIODS. (a) At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 10:00 A.M. (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Agent written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the Borrower, be a one, two, three or six month period.
Notwithstanding anything to the contrary contained above:
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(i) the initial Interest Period for any Borrowing of Eurodollar Loans
shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of Base Rate Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iii) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) no Interest Period shall extend beyond the Expiry Date; and
(v) no Interest Period may be elected at any time when a violation of
Section 9.01 or an Event of Default is then in existence if the Agent or
the Required Banks have determined that such an election at such time would
be disadvantageous to the Banks.
(b) If upon the expiration of any Interest Period, the Borrower has
failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the Borrower shall
be deemed to have elected to convert such Borrowing into a Borrowing of Base
Rate Loans effective as of the expiration date of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in
the case of clause (i) below, the Agent or (y) in the case of clauses (ii) and
(iii) below, any Bank shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period that, by reason of any changes arising after the date of
this Agreement affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the
amount received or receivable resulting from
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the imposition of or a change in the rate of taxes or similar charges)
because of (x) any change since the Effective Date in any applicable law,
governmental rule, regulation, guideline or order (or in the interpretation
or administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline or order) (such as, for example,
but not limited to, a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate) and/or (y) other
circumstances affecting such Bank, the interbank Eurodollar market or the
position of such Bank in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has become unlawful by compliance by such Bank in good faith with any
law, governmental rule, regulation, guideline (or would conflict with any
such governmental rule, regulation, guideline or order not having the force
of law but with which such Bank customarily complies even though the
failure to comply therewith would not be unlawful), or has become
impracticable as a result of a contingency occurring after the Effective
Date which materially and adversely affects the interbank Eurodollar
market;
then, and in any such event, such Bank (or the Agent in the case of clause (i)
above) shall (x) on such date and (y) within ten Business Days of the date on
which such event no longer exists give notice (by telephone confirmed in
writing) to the Borrower and to the Agent of such determination (which notice
the Agent shall promptly transmit to each of the other Banks). Thereafter (x)
in the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion given by the Borrower with respect
to Eurodollar Loans which have not yet been incurred shall be deemed rescinded
by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to
such Bank, upon written demand therefor, such additional amounts (in the form of
an increased rate of, or a different method of calculating, interest or
otherwise as such Bank in its sole discretion shall determine) as shall be
required to compensate such Bank for such increased costs or reductions in
amounts receivable hereunder (a written notice as to the additional amounts owed
to such Bank, showing the basis for the calculation thereof, submitted to the
Borrower by such Bank shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) and (z) in the case of clause (iii) above, the
Borrower shall take one of the actions specified in Section 1.10(b) as promptly
as possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii) the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or (iii), or
(ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' notice to the Agent, require the
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affected Bank to convert each such Eurodollar Loan into a Base Rate Loan,
provided that if more than one Bank is affected at any time, then all affected
Banks must be treated the same pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the Effective Date,
the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Bank could
have achieved but for such adoption, effectiveness, change or compliance (taking
into consideration such Bank's policies with respect to capital adequacy), then
from time to time, within 15 days after demand by such Bank (with a copy to the
Agent), the Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such reduction. Each Bank, upon determining in
good faith that any additional amounts will be payable pursuant to this Section
1.10(c), will give prompt written notice thereof to the Borrower, which notice
shall set forth the basis of the calculation of such additional amounts,
although the failure to give any such notice shall not release or diminish any
of the Borrower's obligations to pay additional amounts pursuant to this Section
1.10(c) upon the subsequent receipt of such notice.
1.11 COMPENSATION. (a) The Borrower shall compensate each Bank, upon
its written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans but excluding in any event the loss of anticipated
profits) which such Bank may sustain: (i) if for any reason (other than a
default by such Bank or the Agent) a Borrowing of Eurodollar Loans does not
occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion (whether or not withdrawn by the Borrower or deemed withdrawn
pursuant to Section 1.10(a)); (ii) if any prepayment, repayment or conversion of
any of its Eurodollar Loans occurs on a date which is not the last day of an
Interest Period applicable thereto; (iii) if any prepayment of any of its
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the
Borrower to repay its Eurodollar Loans when required by the terms of this
Agreement or (y) an election made pursuant to Section 1.10(b).
(b) Notwithstanding anything in this Agreement to the contrary, to
the extent any notice required by Section 1.10, 2.06 or 4.04 is given by any
Bank more than 180 days after such Bank obtained, or reasonably should have
obtained, knowledge of the occurrence of the event giving rise to the additional
costs of the type described in such Section, such Bank
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shall not be entitled to compensation under Section 1.10, 2.06 or 4.04 for any
amounts incurred or accruing prior to the giving of such notice to the Borrower.
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.06 or 4.04 with respect to such Bank, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office for any Loans affected by such
event, provided that such designation is made on such terms that such Bank and
its lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving rise to the operation
of any such Section. Nothing in this Section 1.12 shall affect or postpone any
of the obligations of the Borrower or the right of any Bank provided in Section
1.10, 2.06 or 4.04.
1.13 REPLACEMENT OF BANKS. (w) Upon any AF Bank being replaced under
Section 2.01 of the AF Credit Agreement, (x) upon the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
Section 2.06 or Section 4.04 with respect to any Bank which results in such Bank
charging to the Borrower increased costs in excess of those being generally
charged by the other Banks, (y) if a Bank becomes a Defaulting Bank and/or (z)
in the case of a refusal by a Bank to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been approved
by the Required Banks or Super Majority Banks, as the case may be, as provided
in Section 12.12, the Borrower shall have the right, if no Default or Event of
Default then exists, to replace (and, in the case of clause (w) above, shall
replace) such Bank (the "Replaced Bank") with one or more other transferee or
transferees who shall be acceptable to the Agent and none of whom shall
constitute a Defaulting Bank at the time of such replacement (collectively, the
"Replacement Bank") reasonably acceptable to the Agent, provided that (i) any
Bank replaced pursuant to this Section 1.13 must also be replaced as an AF Bank
at the same time under Section 2.01 of the AF Credit Agreement by the same
Replacement Bank (and in the same pro rata amounts if more than one Replacement
Bank), (ii) any Bank that is replaced as an AF Bank pursuant to Section 2.01 of
the AF Credit Agreement must also be replaced at the same time as a Bank
hereunder by the same Replacement Bank (and in the same pro rata amounts if more
than one Replacement Bank), (iii) at the time of any replacement pursuant to
this Section 1.13, the Replacement Bank shall enter into one or more Assignment
Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to
said Section 12.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire all of the Revolving Commitment and outstanding
Revolving Loans of the Replaced Bank and, in connection therewith, shall pay to
the Replaced Bank in respect thereof an amount equal to the sum of (A) an amount
equal to the principal of, and all accrued interest on, all outstanding Loans of
the Replaced Bank and (B) an amount equal to all accrued, but theretofore
unpaid, Fees owing to the Replaced Bank pursuant to Section 3.01 and (iv) all
obligations of the Borrower owing to the Replaced Bank (other than those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid) shall be paid in full
to such Replaced Bank concurrently with such replacement. Upon the execution of
the
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respective Assignment and Assumption Agreements, the payment of amounts referred
to in clauses (iii) and (iv) above and, if so requested by the Replacement Bank,
delivery to the Replacement Bank of the appropriate Note executed by the
Borrower, the Replacement Bank shall become a Bank hereunder and the Replaced
Bank shall cease to constitute a Bank hereunder, except with respect to
indemnification provisions applicable to the Replaced Bank under this Agreement,
which shall survive as to such Replaced Bank.
SECTION 2. LETTERS OF CREDIT.
1.021 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that a Letter of Credit
Issuer at any time and from time to time on or after the Initial Borrowing Date
and prior to the Expiry Date to issue, for the account of the Borrower and in
support of such standby obligations of the Borrower that are acceptable to the
Agent (each such letter of credit a "Letter of Credit" and, collectively, the
"Letters of Credit"), and subject to and upon the terms and conditions herein
set forth the Letter of Credit Issuer agrees to issue from time to time,
irrevocable letters of credit denominated in U.S. dollars in such form as may be
approved by the Letter of Credit Issuer and the Agent. The letter of credit,
including any extension thereof (the "Existing Letter of Credit") issued by
LaSalle pursuant to the LaSalle Loan Agreement shall constitute a "Letter of
Credit" for all purposes of this Agreement and shall be deemed issued for
purposes of Section 2.05(a), 3.01(b) and 3.01(c) on the Effective Date.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued, the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $5,000,000 or (y) when added to the aggregate principal amount
of all Revolving Loans made by Non-Defaulting Banks and Swingline Loans then
outstanding, the Adjusted Total Revolving Commitment at such time; and (ii) each
Letter of Credit shall have an expiry date occurring not later than one year
after such Letter of Credit's date of issuance (other than the Existing Letter
of Credit) although any Letter of Credit may be extendable for successive
periods of up to 12 months, but not beyond the Business Day next preceding the
Expiry Date, on terms acceptable to the Letter of Credit Issuer and in no event
shall any Letter of Credit have an expiry date occurring later than the Business
Day next preceding the Expiry Date.
(c) Notwithstanding the foregoing, in the event a Bank Default
exists, the Letter of Credit Issuer shall not be required to issue any Letter of
Credit unless the Letter of Credit Issuer has entered into arrangements
satisfactory to it and the Borrower to eliminate the Letter of Credit Issuer's
risk with respect to the participation in Letters of Credit of the Defaulting
Bank or Banks, including by cash collateralizing such Defaulting Bank's or
Banks' Percentage of the Letter of Credit Outstandings.
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(d) On the Effective Date, the Existing Letter of Credit shall become
a Letter of Credit hereunder for all purposes, with LaSalle being the Letter of
Credit Issuer of such Letter of Credit.
1.022 MINIMUM STATED AMOUNT. The initial Stated Amount of each
Letter of Credit shall be not less than $25,000 or such lesser amount acceptable
to the Letter of Credit Issuer.
1.023 LETTER OF CREDIT REQUESTS; NOTICES OF ISSUANCE. (a) Whenever it
desires that a Letter of Credit be issued after the Initial Borrowing Date, the
Borrower shall give the Agent and the Letter of Credit Issuer written notice
(including by way of telecopier) in the form of Exhibit A-2 thereof prior to
1:00 P.M. (New York time) at least three Business Days (or such shorter period
as may be acceptable to the Letter of Credit Issuer) prior to the proposed date
of issuance (which shall be a Business Day) (each a "Letter of Credit Request"),
which Letter of Credit Request shall include any other documents that the Letter
of Credit Issuer customarily requires in connection therewith.
(b) The Letter of Credit Issuer shall, promptly after each issuance
of a Letter of Credit by it, give the Agent, each Bank and the Borrower written
notice of the issuance of such Letter of Credit, accompanied by a copy to the
Agent of the Letter of Credit or Letters of Credit issued by it.
1.024 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
hereby agrees to reimburse the Letter of Credit Issuer, by making payment to the
Agent at the Payment Office, for any payment or disbursement made by the Letter
of Credit Issuer under any Letter of Credit (each such amount so paid or
disbursed until reimbursed, an "Unpaid Drawing") immediately after, and in any
event on the date on which the Borrower is notified by the Letter of Credit
Issuer of such payment or disbursement with interest on the amount so paid or
disbursed by the Letter of Credit Issuer, to the extent not reimbursed prior to
1:00 P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but not including the date the Letter of
Credit Issuer is reimbursed therefor at a rate per annum which shall be the
Applicable Margin in excess of the Base Rate as in effect from time to time
(plus an additional 2% per annum if not reimbursed by the third Business Day
after the date of such notice of payment or disbursement), such interest also to
be payable on demand.
(b) The Borrower's obligation under this Section 2.04 to reimburse
the Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Letter of Credit Issuer, the
Agent or any Bank, including, without limitation, any defense based upon the
failure of any drawing under a Letter of Credit to conform to the terms of the
Letter of Credit or any non-application or misapplication by the beneficiary of
the proceeds of
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such drawing; PROVIDED, HOWEVER, that the Borrower shall not be obligated to
reimburse the Letter of Credit Issuer for any wrongful payment made by the
Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Letter of Credit Issuer.
1.025 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, (and on the
Effective Date with respect to the Existing Letter of Credit), the Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Bank,
and each such Bank (each a "Participant") shall be deemed irrevocably and
unconditionally to have purchased and received from such Letter of Credit
Issuer, without recourse or warranty, an undivided interest and participation,
to the extent of such Bank's Adjusted Percentage, in such Letter of Credit, each
substitute letter of credit, each drawing made thereunder and the obligations of
the Borrower under this Agreement with respect thereto (although the Letter of
Credit Fee shall be payable directly to the Agent for the account of the Banks
as provided in Section 3.01(b) and the Participants shall have no right to
receive any portion of any Facing Fees) and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Commitments or Adjusted
Percentages of the Banks pursuant to Section 12.04(b) or upon a Bank Default, it
is hereby agreed that, with respect to all outstanding Letters of Credit and
Unpaid Drawings, there shall be an automatic adjustment to the participations
pursuant to this Section 2.05 to reflect the new Adjusted Percentages of the
assigning and assignee Bank or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the
Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by the Letter of Credit Issuer under or in
connection with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct, shall not create for the Letter of Credit
Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to the Letter of Credit Issuer pursuant to Section 2.04(a), the
Letter of Credit Issuer shall promptly notify the Agent, and the Agent shall
promptly notify each Participant of such failure, and each Participant shall
promptly and unconditionally pay to the Agent for the account of the Letter of
Credit Issuer, the amount of such Participant's Adjusted Percentage of such
payment in U.S. dollars and in same day funds; PROVIDED, HOWEVER, that no
Participant shall be obligated to pay to the Agent its Adjusted Percentage of
such unreimbursed amount for any wrongful payment made by the Letter of Credit
Issuer under a Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of the Letter of Credit
Issuer. If the Agent so notifies any Participant required to fund an Unpaid
Drawing under a Letter of Credit prior to 11:00 A.M. (New York time) on any
Business Day, such Participant shall make available to the Agent for the account
of the Letter of Credit Issuer such Participant's Adjusted
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Percentage of the amount of such payment on such Business Day in same day funds.
If and to the extent such Participant shall not have so made its Adjusted
Percentage of the amount of such Unpaid Drawing available to the Agent for the
account of the Letter of Credit Issuer, such Participant agrees to pay to the
Agent for the account of the Letter of Credit Issuer, forthwith on demand such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to the Agent for the account of the Letter of Credit
Issuer at the overnight Federal Funds Effective Rate. The failure of any
Participant to make available to the Agent for the account of the Letter of
Credit Issuer its Adjusted Percentage of any Unpaid Drawing under any Letter of
Credit shall not relieve any other Participant of its obligation hereunder to
make available to the Agent for the account of the Letter of Credit Issuer its
Adjusted Percentage of any payment under any Letter of Credit on the date
required, as specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to the Agent for the account
of the Letter of Credit Issuer such other Participant's Adjusted Percentage of
any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Agent has received for the account of
the Letter of Credit Issuer any payments from the Participants pursuant to
clause (c) above, the Letter of Credit Issuer shall pay to the Agent and the
Agent shall promptly pay to each Participant which has paid its Adjusted
Percentage thereof, in U.S. dollars and in same day funds, an amount equal to
such Participant's Adjusted Percentage of the principal amount thereof and
interest thereon accruing at the overnight Federal Funds Effective Rate after
the purchase of the respective participations.
(e) The obligations of the Participants to make payments to the Agent
for the account of the Letter of Credit Issuer with respect to Letters of Credit
shall be irrevocable and not subject to counterclaim, set-off or other defense
or any other qualification or exception whatsoever (provided that no Participant
shall be required to make payments resulting from the Agent's gross negligence
or willful misconduct) and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which
the Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any Person for whom
any such transferee may be acting), the Agent, the Letter of Credit Issuer,
any Bank or other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower and
the beneficiary named in any such Letter of Credit);
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(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by
the Borrower, the Participants will reimburse and indemnify the Letter of Credit
Issuer, in proportion to their respective Adjusted Percentages, for and against
any and all liabilities, obligations, losses, damages, penalties, claims,
actions, judgments, costs, expenses or disbursements of whatsoever kind or
nature which may be imposed on, asserted against or incurred by the Letter of
Credit Issuer in performing its respective duties in any way relating to or
arising out of its issuance of Letters of Credit; PROVIDED that no Participants
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Letter of Credit Issuer's gross negligence or willful
misconduct.
1.026 INCREASED COSTS. If at any time after the Effective Date, the
adoption or effectiveness of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Letter of Credit
Issuer or any Bank with any request or directive (whether or not having the
force of law) by any such authority, central bank or comparable agency shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by the Letter
of Credit Issuer or such Bank's participation therein, or (ii) shall impose on
the Letter of Credit Issuer or any Bank any other conditions affecting this
Agreement, any Letter of Credit or such Bank's participation therein; and the
result of any of the foregoing is to increase the cost to the Letter of Credit
Issuer or such Bank of issuing, maintaining or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by the Letter
of Credit Issuer or such Bank hereunder (other than any increased cost or
reduction in the amount received or receivable resulting from the imposition of
or a change in the rate of taxes or similar charges), then, upon demand to the
Borrower by the Letter of Credit Issuer or such Bank (a copy of which notice
shall be sent by the Letter of Credit Issuer or such Bank to the Agent), the
Borrower shall pay to the Letter of Credit Issuer or such Bank such additional
amount or amounts as will compensate the Letter of Credit Issuer or such Bank
for such increased cost or reduction. A certificate submitted to the Borrower
by the Letter of Credit Issuer or such Bank, as the case may be (a copy of which
certificate shall be sent by the Letter of Credit Issuer or such Bank to the
Agent), setting forth the basis for the determination of such additional amount
or amounts necessary to compensate the Letter of Credit Issuer or such Bank as
aforesaid shall be conclusive and binding on the Borrower absent
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manifest error, although the failure to deliver any such certificate shall not
release or diminish any of the Borrower's obligations to pay additional amounts
pursuant to this Section 2.06 upon the subsequent receipt thereof.
SECTION 3. FEES; COMMITMENTS.
1.031 FEES. (a) The Borrower agrees to pay to the Agent a commitment
commission ("Commitment Commission") for the account of each Non-Defaulting Bank
for the period from and including the Effective Date to, but not including, the
Expiry Date, or, if earlier, the date upon which the Total Revolving Commitment
has been terminated, computed at a rate for each day equal to 1/2 of 1% per
annum on such Bank's Unutilized Revolving Commitment on such day. Such
Commitment Commission shall be due and payable in arrears on the last Business
Day of each February, May, August and November and on the Expiry Date, or, if
earlier, the date upon which the Total Revolving Commitment is terminated.
(b) The Borrower agrees to pay to the Agent for the account of each
Non-Defaulting Bank pro rata on the basis of their respective Adjusted
Percentages, a fee in respect of each Letter of Credit (the "Letter of Credit
Fee") computed for each day at the rate equal to the Applicable Eurodollar
Margin then in effect on the Stated Amount of such Letter of Credit on such day.
Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on
the last Business Day of each February, May, August and November of each year
and on the date upon which the Total Revolving Commitment is terminated.
(c) The Borrower agrees to pay to the Agent for the account of the
Letter of Credit Issuer a fee in respect of each Letter of Credit (the "Facing
Fee") computed for each day at the rate of 1/4 of 1% per annum on the Stated
Amount of such Letter of Credit on such day provided that in no event shall the
annual Facing Fee be less than $500. Accrued Facing Fees shall be due and
payable quarterly in arrears on the last Business Day of each February, May,
August and November of each year and on the date upon which the Total Revolving
Commitment is terminated.
(d) The Borrower agrees to pay directly to the Letter of Credit
Issuer upon each issuance of, payment under, and/or amendment of, a Letter of
Credit such amount as shall at the time of such issuance, payment or amendment
be the administrative charge which the Letter of Credit Issuer is customarily
charging for issuances of, payments under or amendments of, letters of credit
issued by it.
(e) The Borrower shall pay to the Agent (x) on the Effective Date for
its own account and/or for distribution to the Banks such fees as heretofore
agreed by the Borrower and the Agent and (y) for its own account such other fees
as agreed to between the Borrower and the Agent, when and as due.
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(f) All computations of Fees shall be made in accordance with Section
12.07(b).
1.032 VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three
Business Days' prior written notice (or telephonic notice confirmed in writing)
to the Agent at its Notice Office (which notice the Agent shall promptly
transmit to each of the Banks), the Borrower shall have the right, without
premium or penalty, to terminate or partially reduce the Unutilized Total
Revolving Commitment, provided that (x) any such termination shall apply to
proportionately and permanently reduce the Revolving Commitment of each Bank,
(y) no such reduction shall reduce any Non-Defaulting Bank's Revolving
Commitment to an amount that is less than the sum of (A) the outstanding
Revolving Loans of such Bank and (B) such Bank's Adjusted Percentage of
outstanding Swingline Loans and of Letter of Credit Outstandings and (z) any
partial reduction pursuant to this Section 3.02 shall be in the amount of at
least $1,000,000.
1.033 MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total
Revolving Commitment (and the Revolving Commitment of each Bank) shall terminate
on the Expiration Date unless the Effective Date has occurred on or before such
date.
(b) The Total Revolving Commitment (and the Revolving Commitment of
each Bank) shall terminate on the earlier of (x) the Expiry Date, (y) the
Acquisition Facility Termination Date and (z) the date on which any Change of
Control occurs.
SECTION 4. PAYMENTS.
1.041 VOLUNTARY PREPAYMENTS. The Borrower shall have the right to
prepay Loans in whole or in part, without premium or penalty, from time to time
on the following terms and conditions: (i) the Borrower shall give the Agent at
the Payment Office written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay the Loans, the amount of such prepayment and
(in the case of Eurodollar Loans) the specific Borrowing(s) pursuant to which
made, which notice shall be given by the Borrower at least one Business Day
prior to the date of such prepayment with respect to Base Rate Loans (other than
Swingline Loans, with respect to which notice may be given prior to 1:00 P.M. on
the date of prepayment) and two Business Days prior to the date of such
prepayment with respect to Eurodollar Loans, which notice shall promptly be
transmitted by the Agent to each of the Banks; (ii) each partial prepayment of
any Borrowing shall be in an aggregate principal amount of at least $500,000
and, if greater in an integral multiple of $100,000, provided that (x) Swingline
Loans may be prepaid in an aggregate amount of at least $250,000 and (y) no
partial prepayment of Eurodollar Loans made pursuant to a Borrowing shall reduce
the aggregate principal amount of the Eurodollar Loans outstanding pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto; (iii) at the time of any prepayment of Eurodollar Loans pursuant to
this Section 4.01 on any date other than the last day of the Interest Period
applicable thereto, the Borrower shall pay the amounts required
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pursuant to Section 1.11; and (iv) each prepayment in respect of any Loans made
pursuant to a Borrowing shall be applied PRO RATA among such Loans, provided,
that at the Borrower's election in connection with any prepayment of Revolving
Loans pursuant to this Section 4.01, such prepayment shall not be applied to any
Revolving Loans of a Defaulting Bank.
1.042 MANDATORY PREPAYMENTS.
(A) REQUIREMENTS:
(a)(i) If on any date the sum of the aggregate outstanding principal
amount of Revolving Loans made by Non-Defaulting Banks, Swingline Loans and the
Letter of Credit Outstandings exceeds the Adjusted Total Revolving Commitment as
then in effect, the Borrower shall repay on such date the principal of Swingline
Loans, and if no Swingline Loans are or remain outstanding, Revolving Loans of
Non-Defaulting Banks, in an aggregate amount equal to such excess. If, after
giving effect to the repayment of all outstanding Swingline Loans and Revolving
Loans of Non-Defaulting Banks, the aggregate amount of Letter of Credit
Outstandings exceeds the Adjusted Total Revolving Commitment then in effect, the
Borrower shall pay to the Agent an amount in cash and/or Cash Equivalents equal
to such excess and the Agent shall hold such payment as security for the
obligations of the Borrower hereunder pursuant to a cash collateral agreement to
be entered into in form and substance satisfactory to the Agent (which shall
permit certain investments in Cash Equivalents satisfactory to the Agent, until
the proceeds are applied to the secured obligations).
(ii) If on any date the aggregate outstanding principal amount of the
Revolving Loans made by a Defaulting Bank exceeds the Revolving Commitment of
such Defaulting Bank, the Borrower shall repay principal of the Revolving Loans
of such Defaulting Bank in an amount equal to such excess.
(B) APPLICATION:
(a) With respect to each prepayment of Loans required by Section
4.02, the Borrower may designate the Types of Loans which are to be prepaid and
the specific Borrowing(s) pursuant to which made, provided that (i) Eurodollar
Loans may so be designated for prepayment pursuant to this Section 4.02 only on
the last day of an Interest Period applicable thereto unless all Eurodollar
Loans with Interest Periods ending on such date of required prepayment and all
Base Rate Loans have been paid in full; (ii) if any prepayment of Eurodollar
Loans made pursuant to a single Borrowing shall reduce the outstanding Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount, such Borrowing shall be immediately converted into Base Rate Loans;
(iii) each prepayment of any Revolving Loans made by Non-Defaulting Banks
pursuant to a Borrowing shall be applied PRO RATA among such Revolving Loans;
and (iv) each prepayment of any Revolving Loans made by Defaulting Banks
pursuant to a Borrowing shall be applied PRO RATA among such Revolving Loans.
In the absence of a designation by the Borrower as described in the preceding
sentence, the Agent
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shall, subject to the above, make such designation in its sole discretion with a
view, but no obligation, to minimize breakage costs owing under Section 1.11.
1.043 METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the Agent
for the ratable (based on its PRO RATA share) account of the Banks entitled
thereto, not later than 1:00 P.M. (New York time) on the date when due and shall
be made in immediately available funds and in lawful money of the United States
of America at the Payment Office, it being understood that written notice by the
Borrower to the Agent to make a payment from the funds in the Borrower's account
at the Payment Office shall constitute the making of such payment to the extent
of such funds held in such account. Any payments under this Agreement which are
made later than 1:00 P.M. (New York time) shall be deemed to have been made on
the next succeeding Business Day. Whenever any payment to be made hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension.
1.044 NET PAYMENTS.(a) All payments made by the Borrower hereunder,
under any Note or any other Credit Document, will be made without setoff,
counterclaim or other defense. Except as provided for in Section 4.04(b), all
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein (but excluding, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income (or any franchise tax) of a
Bank pursuant to the laws of the jurisdiction in which the principal office or
applicable lending office of such Bank is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which the
principal office or applicable lending office of such Bank is located) and all
interest, penalties or similar liabilities with respect thereto (collectively,
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to pay the
full amount of such Taxes and such additional amounts as may be necessary so
that every payment of all amounts due hereunder, under any Note or under any
other Credit Document, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein or in such Note or
in such other Credit Document. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, then the Borrower shall also reimburse each
Bank, upon the written request of such Bank, for taxes imposed on or measured by
the net income of such Bank pursuant to the laws of the jurisdiction in which
the principal office or applicable lending office of such Bank is located or of
any political subdivision or taxing authority of any such jurisdiction and for
any withholding of income or similar taxes imposed by the United States of
America as such Bank shall determine are payable by, or withheld from, such Bank
in respect of Taxes paid to or on behalf of such Bank pursuant to this or the
preceding sentence. The Borrower will furnish to the Agent within 45 days after
the date the payment of any Taxes, or any withholding or deduction on account
thereof, is due pursuant to applicable law certified copies of tax receipts
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evidencing such payment by the Borrower. The Borrower will indemnify and hold
harmless the Agent and each Bank, and reimburse the Agent or such Bank upon its
written request, for the amount of any Taxes so levied or imposed and paid or
withheld by such Bank.
(b) Each Bank which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes
agrees (i) to provide to the Borrower on or prior to the Initial Borrowing Date
two original signed copies of Internal Revenue Service Form 4224 or Form 1001
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement, under
any Note and under any other Credit Document and (ii) that, (x) to the extent
legally entitled to do so, with respect to a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 12.04 hereof
(unless the respective Bank was already a Bank hereunder immediately prior to
such assignment or transfer), upon the date of such assignment or transfer to
such Bank, and (y) with respect to any Bank which is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes (including, without limitation, any assignee or transferee),
from time to time, upon the reasonable request by the Borrower or the Agent
after the Initial Borrowing Date, such Bank will provide to each of the Borrower
and the Agent two original signed copies of Internal Revenue Service Form 4224
or Form 1001 (or any successor forms) certifying to such Bank's entitlement to a
complete exemption from, or reduction in, United States withholding tax with
respect to payments to be made under this Agreement, under any Note and under
any other Credit Document. Notwithstanding anything to the contrary contained
in Section 4.04(a), the Borrower shall be entitled, to the extent it is required
to do so by law, to deduct or withhold income or other similar taxes imposed by
the United States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder (without any
obligation under Section 4.04(a) to pay the respective Bank such taxes or any
additional amounts with respect thereto) for the account of any Bank which is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for United States federal income tax purposes and which has not
provided to the Borrower such forms required to be provided to the Borrower by a
Bank pursuant to the first sentence of this Section 4.04(b), provided that if
the Borrower shall so deduct or withhold any such taxes, it shall provide a
statement to the Agent and such Bank, setting forth the amount of such taxes so
deducted or withheld, the applicable rate and any other information or
documentation which such Bank may reasonably request for assisting such Bank in
obtaining any allowable credits or deductions for the taxes so deducted or
withheld in the jurisdiction or jurisdictions in which such Bank is subject to
tax. Notwithstanding anything to the contrary contained in the preceding
sentence, the Borrower agrees to indemnify each Bank in the manner set forth in
Section 4.04(a) in respect of any amounts deducted or withheld by it as
described in the previous sentence as a result of any changes after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of income or similar Taxes.
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SECTION 5. CONDITIONS.
1.051 EFFECTIVENESS. This Agreement shall become effective on the
date (the "Effective Date") on which all the following conditions first have
been satisfied:
(A) EXECUTION OF AGREEMENT. (i) This Agreement shall have been
executed as provided in Section 12.10 and (ii) there shall have been delivered
to the Agent for the account of each Bank the appropriate Revolving Note and, in
the case of BTCo, Swingline Note, in each case, executed by the Borrower, and in
the amount, maturity and as otherwise provided herein.
(B) OFFICER'S CERTIFICATE. On the Effective Date, the Agent shall
have received a certificate dated such date signed by the President or any Vice
President of the Borrower stating that all of the applicable conditions set
forth in Sections 5.01(H), (I) and (J) exist as of such date.
(C) OPINIONS OF COUNSEL. On the Effective Date, the Agent shall have
received opinions, addressed to the Agent, and each of the Banks and dated the
Initial Borrowing Date, from (i) Winston & Strawn, counsel to the Borrower,
which opinion shall cover the matters contained in Exhibit C-1 to the AF Credit
Agreement, (ii) White & Case, special counsel to the Agent, which opinion shall
cover the matters contained in Exhibit C-2 to the AF Credit Agreement and (iii)
from local counsel satisfactory to the Agent as the Agent may request, which
opinions shall cover the perfection of the security interests granted pursuant
to the Security Documents and such other matters incident to the transactions
contemplated herein as the Agent may reasonably request and shall be in form and
substance satisfactory to the Agent.
(D) CORPORATE PROCEEDINGS. (a) On the Effective Date, the Agent shall
have received from the Borrower a certificate, dated the Initial Borrowing Date,
signed by the President or any Vice-President of the Borrower in the form of
Exhibit D to the AF Credit Agreement with appropriate insertions and deletions,
together with copies of the certificate of formation, the by-laws, or other
organizational documents of the Borrower and the resolutions, or such other
administrative approval, of the Borrower referred to in such certificate and all
of the foregoing (including each such certificate of formation, certificate of
incorporation and by-laws) shall be satisfactory to the Agent.
(b) On the Effective Date, all corporate and legal proceedings and
all instruments and agreements in connection with the transactions contemplated
by this Agreement and the other Documents shall be satisfactory in form and
substance to the Agent, and the Agent shall have received all information and
copies of all certificates, documents and papers, including good standing
certificates and any other records of corporate proceedings and governmental
approvals, if any, which the Agent may have requested in connection therewith,
such documents and papers, where appropriate, to be certified by proper
corporate or governmental authorities.
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(E) PLANS; ETC. On or prior to the Effective Date, there shall have
been made available to the Agent, copies, certified as true and correct by an
appropriate officer of the Borrower of:
(i) any Plans, and for each Plan (x) that is a "single-employer plan"
(as defined in Section 4001(a)(15) of ERISA) the most recently completed
actuarial valuation prepared therefor by such Plan's regular enrolled
actuary and the Schedule B, "Actuarial Information" to the Internal Revenue
Service Form 5500 (Annual Report) most recently filed with the Internal
Revenue Service and (y) that is a "multiemployer plan" (as defined in
Section 4001(a)(3) of ERISA), each of the documents referred to in clause
(x) either in the possession of Holdings, the Borrower or any of its
Subsidiaries, or any ERISA Affiliate or reasonably available thereto from
the sponsor or trustees of such Plan;
(ii) all agreements evidencing or relating to Existing Indebtedness
(the "Existing Indebtedness Agreements");
(iii) all agreements entered into by Holdings, the Borrower or any of
its Subsidiaries governing the terms and relative rights of its capital
stock, and any agreements entered into by members or shareholders relating
to any such entity with respect to their capital stock (collectively, the
"Shareholders' Agreements");
(iv) any agreement with members of, or with respect to, the management
of Holdings, the Borrower or any of its Subsidiaries (collectively, the
"Management Agreements"); and
(v) any employment agreements entered into by Holdings, the Borrower
or any of its Subsidiaries (collectively, the "Employment Agreements");
all of which Plans, Existing Indebtedness Agreements, Shareholders' Agreements,
Management Agreements and Employment Agreements shall be in form and substance
satisfactory to the Agent.
(F) ADVERSE CHANGE, ETC. From December 31, 1995 (May 31, 1995 in the
case of NOA and its Subsidiaries) to the Effective Date, nothing shall have
occurred (and neither the Banks nor the Agent shall have become aware of any
facts or conditions not previously known) which the Agent or the Required Banks
shall determine (a) has, or is reasonably likely to have, a material adverse
effect on the rights or remedies of the Banks or the Agent, or on the ability of
the Borrower to perform its obligations to them, or (b) has, or is reasonably
likely to have, a Material Adverse Effect.
(G) LITIGATION. On the Effective Date, there shall be no actions,
suits or proceedings pending or threatened (a) with respect to this Agreement or
any other Document
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or the transactions contemplated hereby or thereby (including the Transaction)
or (b) which the Agent or the Required Banks shall determine has, or is
reasonably likely to have (i) a Material Adverse Effect or (ii) a material
adverse effect on the rights or remedies of the Banks hereunder or under any
other Credit Document or on the ability of the Borrower to perform its
obligations to the Banks hereunder or under any other Credit Document or upon
the ability of the parties to consummate the Transaction.
(H) APPROVALS. On the Effective Date, all material necessary
governmental and third party approvals in connection with the transactions
contemplated by the Credit Documents and the other Transaction Documents and
otherwise referred to herein or therein shall have been obtained and remain in
effect, and all applicable waiting periods shall have expired without any action
being taken by any competent authority which restrains or prevents such
transactions or imposes, in the reasonable judgment of the Required Banks or the
Agent, materially adverse conditions upon the consummation of such transactions.
In addition, the Agent shall have received evidence satisfactory to it that all
permits, leases, licenses and consents material to the operations of Naegele and
its Subsidiaries and of the Borrower and its Subsidiaries shall remain in effect
after giving effect to the Transaction and/or shall have been obtained.
(I) HOLDINGS RESTRUCTURING. On or prior to the Effective Date, there
shall have been delivered to the Banks true and correct copies of the UOH-Kelso
Agreements, and all terms of the UOH-Kelso Agreements and all other related
documents shall be reasonably satisfactory to the Agent. The UOH-Kelso
Agreements (and the transactions contemplated thereby) shall have been duly
approved by the board of directors and the stockholders of Holdings, and the
UOH-Kelso Agreements shall have been duly executed and delivered by the parties
thereto and shall be in full force and effect. Each of the conditions precedent
to the obligation of Kelso to purchase Holdings capital stock as set forth in
the UOH-Kelso Agreements shall have been satisfied, or waived, all to the
reasonable satisfaction of the Agent, and Kelso shall have consummated its
purchase of Holdings' capital stock for at least $30 million in cash in
accordance with the Kelso-UOH Agreements and all applicable laws, rules and
regulations.
(J) ACQUISITION. On or prior to the Effective Date, there shall have
been delivered to the Banks true and complete copies of the Acquisition
Documents and all terms of the Acquisition Agreement and of the other
Acquisition Documents shall be reasonably satisfactory to the Agent. Each of
the conditions precedent to the obligation of the Borrower to consummate the
Acquisition shall have been satisfied, or waived, all to the reasonable
satisfaction of the Agent and the Borrower shall have consummated the
Acquisition in accordance with the Acquisition Agreement and all applicable
laws, rules and regulations.
(K) SECURITY DOCUMENTS. (a) On the Effective Date, the Borrower shall
have duly authorized, executed and delivered the Borrower Pledge Agreement, and
shall have delivered to the Collateral Agent, as pledgee thereunder, all of the
certificates representing the
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Pledged Securities referred to therein, accompanied by executed and undated
stock powers, and the Borrower's Pledge Agreement shall be in full force and
effect.
(b) On the Effective Date, the Borrower and shall have duly
authorized, executed and delivered the Security Agreement covering all of the
Borrower's present and future Security Agreement Collateral, in each case
together with:
(i) executed copies of Financing Statements (Form UCC-1) in
appropriate form for filing under the UCC of each jurisdiction as may be
necessary to perfect the security interests purported to be created by the
Security Agreement;
(ii) certified copies of Requests for Information or Copies (Form UCC-
11), or equivalent reports, each of recent date listing all effective
financing statements that name the Borrower as debtor and that are filed in
the jurisdictions referred to in clause (i), together with copies of such
financing statements (none of which shall cover the Collateral except (x)
those with respect to which appropriate termination statements executed by
the secured lender thereunder have been delivered to the Agent and (y) to
the extent evidencing liens permitted pursuant to Section 8.03);
(iii) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created by the Security Agreement; and
(iv) evidence that all other actions necessary or, in the opinion of
the Collateral Agent, desirable to perfect and protect the security
interests purported to be created by the Security Agreement have been
taken.
(c) On the Effective Date, each of the Existing UOH Stockholders
shall have each duly authorized, executed and delivered the UOH Pledge Agreement
and shall have delivered to the Collateral Agent, as pledgee thereunder, all of
the certificates representing the Pledged Securities referred to therein,
accompanied by executed and undated stock powers, and each of the UOH Pledge
Agreement shall be in full force and effect.
(d) On the Effective Date, the Agent shall have received fully
executed counterparts of deeds of trust, mortgages and similar documents in each
case in form and substance satisfactory to the Agent (each a "Mortgage" and
collectively, the "Mortgages") covering all the Mortgaged Properties, and
arrangements reasonably satisfactory to the Collateral Agent shall be in place
to provide that counterparts of such Mortgages shall be recorded on the
Effective Date or within one Business Day thereafter in all places to the extent
necessary or desirable, in the judgment of the Collateral Agent, effectively to
create a valid and enforceable first priority Lien, subject only to Permitted
Encumbrances, on each Mortgaged
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Property in favor of the Collateral Agent (or such other trustee as may be
required or desired under local law) for the benefit of the Banks.
(L) SOLVENCY. On the Effective Date, the Borrower shall have
delivered, or shall cause to be delivered to the Agent a solvency letter in the
form of Exhibit H to the AF Credit Agreement from the Chief Financial Officer of
the Borrower and acceptable in form and substance to the Agent.
(M) INSURANCE POLICIES. On the Effective Date, the Collateral Agent
shall have received evidence of insurance complying with the requirements of
Section 7.03 for the business and properties of the Borrower and its
Subsidiaries, in form and substance satisfactory to the Agent and, with respect
to all casualty insurance, naming the Collateral Agent as an additional insured
and loss payee.
(N) FEES. On the Effective Date, the Borrower shall have paid to the
Agent and the Banks all Fees and expenses agreed upon by such parties to be paid
on or prior to such date.
(O) ENVIRONMENTAL REPORTS. On or prior to the Effective Date, the
Agent shall have received environmental reports from Persons reasonably
satisfactory to the Agent covering the properties of NOA and its Subsidiaries,
which reports shall be reasonably satisfactory to the Agent.
(P) CONSENT LETTER. On the Effective Date, the Agent shall have
received a letter from CT Corporation System, presently located at 1633
Broadway, New York, New York, substantially in the form of Exhibit I to the AF
Credit Agreement indicating its consent to its appointment by the Borrower's
agent to receive service of process as specified in Section 12.08.
(Q) AF CREDIT AGREEMENT. On the Effective Date, the Initial
Borrowing Date under and as defined in the AF Credit Agreement shall have
occurred (or would be required to occur in the absence of the condition
specified in Section 5.18 of the AF Credit Agreement) and the Acquisition
Facility Termination Date shall not have occurred.
(R) ADJUSTED EBITDA. On or prior to the Effective Date, the Agent
shall have received evidence satisfactory to it that Holdings and its
Subsidiaries plus NOA and its Subsidiaries shall have attained on a combined
basis an Adjusted EBITDA of at least $30 million for the last 12 months ended
prior to the Effective Date for which financial statements are reasonably
available.
(S) TESTED BORROWINGS. At the time of incurring any Tested
Borrowing, each of the covenants set forth in Sections 8.11 through 8.13 shall
have been satisfied as of, and no
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Event of Default under Section 9.08(B) or (C) shall exist as of, the Measurement
Date relating to such Tested Borrowing determined on a PRO FORMA basis as set
forth in Exhibit G.
1.052 CREDIT EVENTS. At the time of each Credit Event and also after
giving effect thereto, (i) there shall exist no Default or Event of Default and
(ii) all representations and warranties contained herein or in the other Credit
Documents in effect at such time shall be true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date of such Credit Event, except to the extent that
such representations and warranties expressly relate to an earlier date.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to the Agent and each of the Banks
that all of the applicable conditions specified above exist as of that time.
All of the certificates, legal opinions and other documents and papers referred
to in Section 5.01, unless otherwise specified, shall be delivered to the Agent
at its Notice Office for the account of each of the Banks and, except for the
Notes, in sufficient counterparts for each of the Banks and shall be
satisfactory in form and substance to the Agent.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Banks to enter into this Agreement and to make the Loans, the
Borrower makes the following representations and warranties to, and agreements
with, the Banks, all of which shall survive the execution and delivery of this
Agreement and the making of the Loans (with all representations and warranties
made as of the Initial Borrowing Date to be made giving effect to the
Transaction).
1.061 CORPORATE STATUS. Each of Holdings, the Borrower and its
Subsidiaries (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its organization and has the
corporate power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (ii) has
duly qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified and where the failure to
be so qualified would have a Material Adverse Effect.
1.062 CORPORATE POWER AND AUTHORITY. The Borrower has the corporate
power and authority to execute, deliver and carry out the terms and provisions
of the Transaction Documents to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Transaction Documents to which it is a party. The Borrower has duly executed
and delivered each Transaction Document to which it is a party and each such
Transaction Document constitutes the legal, valid and binding obligation of the
Borrower enforceable in accordance with its terms.
1.063 NO VIOLATION. Neither the execution, delivery and performance
by the Borrower of the Transaction Documents to which it is a party nor
compliance with the terms
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and provisions thereof, nor the consummation of the transactions contemplated
therein (i) will contravene any applicable provision of any law, statute, rule,
regulation, order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent with or result in any
breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or (other than pursuant to the Security Documents)
result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of the Borrower or any of its
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust,
agreement or other instrument to which Holdings, the Borrower or any of its
Subsidiaries is a party or by which it or any of its property or assets are
bound or to which it may be subject or (iii) will violate any provision of the
Charter or By-Laws of the Borrower or any of its Subsidiaries.
1.064 LITIGATION. There are no actions, suits or proceedings pending
or, to the Borrower's knowledge, threatened with respect to the Borrower or any
of its Subsidiaries (i) that are likely to have a Material Adverse Effect or
(ii) that could reasonably be expected to have a material adverse effect on the
rights or remedies of the Banks or on the ability of the Borrower to perform its
obligations to them hereunder and under the other Credit Documents.
1.065 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of all
Loans may be used (i) to refinance on the Effective Date in part existing
indebtedness of the Borrower other than Existing Indebtedness and (ii) for the
general corporate and working capital purposes of the Borrower and its
Subsidiaries.
(b) Neither the making of any Loan hereunder, nor the use of the
proceeds thereof, will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System
and no part of the proceeds of any Loan will be used to purchase or carry any
Margin Stock in violation of Regulation U or to extend credit for the purpose of
purchasing or carrying any Margin Stock.
1.066 GOVERNMENTAL APPROVALS. Except for filings and recordings in
connection with the Security Documents, [and those items listed on Annex III],
no order, consent, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, any foreign or domestic
governmental or public body or authority, or any subdivision thereof, that has
not been obtained or made is required to authorize or is required in connection
with (i) the execution, delivery and performance of any Transaction Document or
(ii) the legality, validity, binding effect or enforceability of any Credit
Document.
1.067 INVESTMENT COMPANY ACT. None of Holdings, the Borrower nor any
of its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
1.068 PUBLIC UTILITY HOLDING COMPANY ACT. None of Holdings, the
Borrower or any of its Subsidiaries is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company," or of
a "subsidiary company" of a
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<PAGE>
"holding company," within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
1.069 TRUE AND COMPLETE DISCLOSURE. All factual information (taken
as a whole) heretofore or contemporaneously furnished by or on behalf of
Holdings, the Borrower or any of its Subsidiaries in writing to the Agent or any
Bank for purposes of or in connection with this Agreement or any transaction
contemplated herein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of any such Person in writing to any
Bank will be, true and accurate in all material respects on the date as of which
such information is dated or certified and not incomplete by omitting to state
any material fact necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which such
information was provided. The projections and PRO FORMA financial information
contained in such materials are based on good faith estimates and assumptions
believed by such Persons to be reasonable at the time made, it being recognized
by the Banks that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ from the projected results. There is no fact known to
the Borrower which would have a Material Adverse Effect, which has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Banks for use in connection with the transactions contemplated
hereby.
6.10 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as of the
Effective Date, on a PRO FORMA basis after giving effect to the Transaction and
to all Indebtedness incurred, and to be incurred, and Liens created, and to be
created, in connection therewith, (x) the sum of the assets, at a fair
valuation, of the Borrower and its Subsidiaries, and of Holdings and is
Subsidiaries, taken as a whole will exceed their debts, (y) the Borrower and its
Subsidiaries, and Holdings and its Subsidiaries, taken as a whole will not have
incurred or intended to, or believe that they will, incur debts beyond their
ability to pay such debts as such debts mature and (z) the Borrower and its
Subsidiaries, and Holdings and its Subsidiaries, taken as a whole will not have
unreasonably small capital with which to conduct their business. For purposes
of this Section 6.10, "debt" means any liability on a claim, and "claim" means
(i) right to payment whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured; or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b)(i) The consolidated balance sheet of Holdings and of the Borrower
at December 31, 1994 and December 31, 1995 and the related consolidated
statements of operations and cash flows of Holdings and of the Borrower for the
fiscal years ended as of said dates, which have been examined by Price
Waterhouse LLP, independent certified public accountants, who delivered an
unqualified opinion in respect therewith, (ii) the Financial Statements (as
defined in the Acquisition Agreement) and (iii) the PRO FORMA consolidated
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balance sheet of the Borrower as of February 28, 1996, copies of which have
heretofore been furnished to each Bank, present fairly the financial position of
such entities at the dates of said statements and the results for the period
covered thereby (or, in the case of the PRO FORMA balance sheet, presents a good
faith estimate of the consolidated PRO FORMA financial condition of the Borrower
(after giving effect to the Transaction and the related financing thereof) at
the date thereof) in accordance with GAAP, except to the extent provided in the
notes to said financial statements. All such financial statements (other than
the aforesaid PRO FORMA balance sheets) have been prepared in accordance with
generally accepted accounting principles and practices consistently applied
except to the extent provided in the notes to said financial statements. Except
for the incurrence of Indebtedness to finance the Acquisition, nothing has
occurred since December 31, 1995 that has had or could reasonably be expected to
have a Material Adverse Effect.
(c) Except as reflected in the financial statements and the notes
thereto described in Section 6.10(b), there were as of the Effective Date no
liabilities or obligations with respect to Holdings, the Borrower or any of its
Subsidiaries of a nature (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, would be
material to the Borrower and its Subsidiaries, and to Holdings and its
Subsidiaries, taken as a whole, except as incurred in the ordinary course of
business consistent with past practices subsequent to December 31, 1995 and
except for the Indebtedness incurred to finance the Acquisition.
6.11 SECURITY INTERESTS. On and after the Effective Date, each of
the Security Documents create, as security for the Obligations purported to be
secured thereby, a valid and enforceable perfected security interest in and Lien
on all of the Collateral subject thereto, superior to and prior to the rights of
all third Persons and subject to no other Liens (except (x) that the Security
Agreement Collateral may be subject to the security interests evidenced by
Permitted Liens relating thereto and (y) the Mortgaged Properties may be subject
to Permitted Encumbrances relating thereto), in favor of the Collateral Agent
for the benefit of the Banks. No filings or recordings are required in order to
perfect the security interests created under any Security Document except for
filings or recordings required in connection with any such Security Document
(other than the Pledge Agreements) which shall have been made upon or prior to
(or are the subject of arrangements, satisfactory to the Agent, for filing on or
promptly after the date of) the execution and delivery thereof.
6.12 REPRESENTATIONS AND WARRANTIES IN TRANSACTION DOCUMENTS. All
representations and warranties (other than of the Sellers under and as defined
in the Acquisition Agreement) set forth in the Transaction Documents were true
and correct in all material respects as of the time such representations and
warranties were made and shall be true and correct in all material respects as
of the Effective Date as if such representations and warranties were made on and
as of such date, unless stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date.
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6.13 CONSUMMATION OF TRANSACTION. As of the Effective Date, the
Transaction shall have been consummated in accordance with the terms and
conditions of the Transaction Documents and all applicable laws. All applicable
waiting periods with respect thereto have or, prior to the time when required,
will have, expired without, in all such cases, any action being taken by any
competent authority which restrains, prevents, or imposes material adverse
conditions upon the consummation of the Transaction. As of the Effective Date,
there does not exist any judgment, order, or injunction prohibiting the
consummation of the Transaction, or the making of Loans or the performance by
the Borrower of its obligations under the Documents.
6.14 TAX RETURNS AND PAYMENTS. Each of Holdings, the Borrower and
its Subsidiaries has filed all federal income tax returns and all other material
tax returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith.
Holdings, the Borrower and its Subsidiaries have paid, or have provided adequate
reserves (in the good faith judgment of the management of the Borrower) for the
payment of, all federal, state and foreign income taxes applicable for all prior
fiscal years and for the current fiscal year to the date hereof.
6.15 COMPLIANCE WITH ERISA. Each Plan is in substantial compliance
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an Unfunded Current
Liability; no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; neither the Borrower, nor any Subsidiary nor any ERISA Affiliate has
incurred any material liability to or on account of a Plan pursuant to Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971, 4975 or 4980 of the Code or expects to incur any
liability (including any indirect, contingent or secondary liability) under any
of the foregoing Sections with respect to any Plan; no proceedings have been
instituted to terminate or appoint a trustee to administer any Plan; no
condition exists which presents a material risk to the Borrower or any
Subsidiary or any ERISA Affiliate of incurring a liability to or on account of a
Plan pursuant to the foregoing provisions of ERISA and the Code; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of the Borrower and its
Subsidiaries and its ERISA Affiliates to all Plans which are multiemployer plans
(as defined in Section 4001(a)(3) of ERISA) in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ended prior to the date of the most recent Credit Event, would not
exceed $150,000; no lien imposed under the Code or ERISA on the assets of the
Borrower or any Subsidiary or any ERISA Affiliate exists or is likely to arise
on account of any Plan; and Holdings, the Borrower and its Subsidiaries do not
maintain or contribute to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) which provides benefits to retired employees (other than
as required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA), except to the extent that
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all events described in the preceding clauses of this Section 6.15 and then in
existence would not, in the aggregate, have or be likely to have a Material
Adverse Effect. With respect to Plans that are multiemployer plans (within the
meaning of Section 4001(a)(3) of ERISA) the representations and warranties in
this Section 6.15 are made to the best knowledge of the Borrower.
6.16 SUBSIDIARIES. (a) Annex IV hereto lists each Subsidiary of the
Borrower existing on the Effective Date. The Borrower owns 100% of the
outstanding capital stock of each such Subsidiary. The Borrower will at all
times own directly 100% of the outstanding capital stock of all of said entities
except to the extent otherwise permitted pursuant to Section 8.02.
(b) There are no restrictions on the Borrower or any of its
Subsidiaries which prohibit or otherwise restrict the transfer of cash or other
assets from any Subsidiary of the Borrower to the Borrower, other than
prohibitions or restrictions existing under or by reason of (i) this Agreement,
the other Credit Documents, the AF Credit Agreement, the Senior Notes and the
Discount Notes, (ii) applicable law, (iii) customary non-assignment provisions
entered into in the ordinary course of business and consistent with past
practices, (iv) any restriction or encumbrance with respect to a Subsidiary of
the Borrower imposed pursuant to an agreement which has been entered into for
the sale or disposition of all or substantially all of the capital stock or
assets of such Subsidiary, so long as such sale or disposition is permitted
under this Agreement, and (v) any documents or instruments governing the terms
of any Indebtedness or other obligations secured by Liens permitted by Section
8.03, provided that such prohibitions or restrictions apply only to the assets
subject to such Liens.
6.17 PATENTS, ETC. The Borrower and each of its Subsidiaries have
obtained all material patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their businesses taken as a whole as
presently conducted and as proposed to be conducted.
6.18 POLLUTION AND OTHER REGULATIONS. (a) Each of Holdings, the
Borrower and its Subsidiaries is in compliance with all Environmental Laws
governing its business for which failure to comply is reasonably likely to have
a Material Adverse Effect, and neither Holdings, the Borrower nor any of its
Subsidiaries is liable for any material penalties, fines or forfeitures for
failure to comply with any of the foregoing in the manner set forth above. All
licenses, permits, registrations or approvals required for the business of the
Borrower and each of its Subsidiaries, as conducted as of the Initial Borrowing
Date, under any Environmental Law have been secured and the Borrower and each of
its Subsidiaries is in substantial compliance therewith, except such licenses,
permits, registrations or approvals the failure to secure or to comply therewith
is not likely to have a Material Adverse Effect. Neither Holdings, the Borrower
nor any of its Subsidiaries is in noncompliance with, breach of or default under
any applicable writ, order, judgment, injunction, or decree to which Holdings,
the Borrower or such Subsidiary is a party or which would affect the ability of
the Borrower
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or such Subsidiary to operate any real property and no event has occurred and is
continuing which, with the passage of time or the giving of notice or both,
would constitute noncompliance, breach of or default thereunder, except in each
such case, such noncompliance, breaches or defaults as are not likely to, in the
aggregate, have a Material Adverse Effect. There are as of the Initial
Borrowing Date no Environmental Claims pending or, to the best knowledge of the
Borrower, threatened, which (a) challenge the validity, term or entitlement of
the Borrower or any of its Subsidiaries for any permit, license, order or
registration required for the operation of any facility under the Environmental
Laws which the Borrower or any of its Subsidiaries operates and (b) wherein an
unfavorable decision, ruling or finding would be reasonably likely to have a
Material Adverse Effect. There are no facts, circumstances, conditions or
occurrences concerning Holdings, the Borrower or any of its Subsidiaries, any of
their operations or on any Real Property or, to the knowledge of the Borrower,
on any property adjacent to any such Real Property that could reasonably be
expected (i) to form the basis of an Environmental Claim against the Borrower,
any of its Subsidiaries or any Real Property of the Borrower or any of its
Subsidiaries, or (ii) to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such Real
Property under any Environmental Law, except in each such case, such
Environmental Claims or restrictions that individually or in the aggregate are
not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated,
used, treated or stored on, or transported to or from, any Real Property of the
Borrower or any of its Subsidiaries or (ii) released on any Real Property, in
each case where such occurrence or event individually or in the aggregate is
reasonably likely to have a Material Adverse Effect.
6.19 PROPERTIES. The Borrower and each of its Subsidiaries have good
and marketable title to all properties owned by them, including all property
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries, and the Financial Statements, referred to in Section 6.10(b), free
and clear of all Liens, other than (i) as referred to in the consolidated
balance sheet, or the Financial Statements, or, in either case, in the notes
thereto or (ii) otherwise permitted by Section 8.03. Annex V contains a true
and complete list of each Real Property owned or leased by the Borrower or any
of its Subsidiaries on the Effective Date (other than properties that are purely
sign locations) and the type of interest therein held by the Borrower or the
respective Subsidiary. Holdings owns no properties or assets (other than the
Tax Sharing Agreement) other than all of the capital stock of the Borrower.
6.20 LABOR RELATIONS. Holdings, the Borrower and its Subsidiaries
are not engaged in any unfair labor practice that could reasonably be expected
to have a Material Adverse Effect. There is (i) no unfair labor practice
complaint pending against Holdings, the Borrower or any of its Subsidiaries or
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against any of them or threatened against any
of them, (ii) no strike, labor dispute, slowdown or stoppage pending against
Holdings, the
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Borrower or any of its Subsidiaries or threatened against any of them and (iii)
no union representation question existing with respect to the employees of
Holdings, the Borrower or any of its Subsidiaries and no union organizing
activities are taking place, except with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the aggregate, such
as is not reasonably likely to have a Material Adverse Effect.
6.21 EXISTING INDEBTEDNESS. Annex VI sets forth a true and complete
list of all Indebtedness of Holdings, the Borrower and each of its Subsidiaries
as of the Effective Date that is in excess of $5,000 for any one issue and is to
remain outstanding after giving effect to the Transaction (all such
Indebtedness, of whatever size, but excluding Indebtedness hereunder and under
the AF Credit Agreement, the "Existing Indebtedness"), in each case showing the
aggregate principal amount thereof and the name of the respective borrower (or
issuer) and any other entity which directly or indirectly guaranteed such debt.
SECTION 7. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees
that on the Effective Date and thereafter for so long as this Agreement is in
effect and until the Commitments have terminated, no Notes or Letters of Credit
are outstanding and the Loans and Unpaid Drawings, together with interest, Fees
and all other Obligations incurred hereunder, are paid in full:
1.071 INFORMATION COVENANTS. The Borrower will furnish to each Bank:
(a) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close of
each fiscal year of the Borrower, the consolidated balance sheet of the
Borrower and its Subsidiaries and of Holdings and its Subsidiaries, as at
the end of such fiscal year and the related consolidated statements of
income and retained earnings and of cash flows for such fiscal year, in
each case setting forth comparative consolidated figures for the preceding
fiscal year, and examined by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to the
scope of audit and as to the status of Holdings, the Borrower or any of its
Subsidiaries as a going concern, together with a certificate of such
accounting firm stating that in the course of its regular audit of the
business of Holdings and of the Borrower, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge of any Default or Event of Default which has
occurred and is continuing or, if in the opinion of such accounting firm
such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year, the consolidated balance sheet of
the Borrower and its Subsidiaries and of Holdings and its Subsidiaries, as
at the end of such quarterly period and the related consolidated statements
of income and retained earnings and of cash flows for such quarterly period
and for the elapsed portion of the fiscal year ended with the last day
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of such quarterly period, and in each case setting forth comparative
consolidated figures for the related periods in the prior fiscal year, all
of which shall be certified by the chief financial officer or controller of
the Borrower or Holdings, as appropriate, subject to changes resulting from
audit and normal year-end audit adjustments.
(c) MONTHLY REPORTS. As soon as practicable, and in any event within
30 days, after the end of each monthly accounting period of each fiscal
year the consolidated balance sheet of the Borrower and its Subsidiaries
and of Holdings and its Subsidiaries, as at the end of such period, and the
related consolidated statements of income and retained earnings for such
period, setting forth comparative figures for the corresponding period of
the previous year, all of which shall be certified by the chief financial
officer or controller of the Borrower or Holdings, as appropriate, subject
to changes resulting from audit and normal year-end audit adjustments.
(d) BUDGETS; ETC. Not more than 60 days after the commencement of
each fiscal year of the Borrower, a budget of the Borrower and its
Subsidiaries in reasonable detail for each of the twelve months of such
fiscal year. Together with each delivery of consolidated financial
statements pursuant to Sections 7.01(a), (b) and (c), a comparison of the
current year to date financial results against the budgets required to be
submitted pursuant to this clause (d) shall be presented.
(e) OFFICER'S CERTIFICATES. (i) At the time of the delivery of the
financial statements provided for in Sections 7.01(a), (b) and (c), a
certificate of the chief financial officer, controller or other Authorized
Officer of the Borrower to the effect that no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying the
nature and extent thereof, which certificate shall set forth the
calculations required to establish (I) the Modified Holdings Leverage Ratio
for the Relevant Determination Date occurring on the last day of such
fiscal year, quarter or month, (II) whether the Borrower and its
Subsidiaries were in compliance with the provisions of Sections 8.11, 8.12
and 8.13 as at the end of such fiscal period and (III) whether there was
any Event of Default under Section 9.08(B) and/or 9.08(C) as at the end of
such fiscal period.
(ii) At the time of any incurrence of Consolidated Debt of Holdings
and its Subsidiaries at a time when the Margin Reduction Discount is (or
based on the last officer's certificate delivered pursuant to clause (i)
above will be) greater than zero, a certificate of any of the persons
specified in clause (i) above setting forth the calculations establishing
the Modified Holdings Leverage Ratio after giving effect to the incurrence
of such Consolidated Debt.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any event
within three Business Days after the Borrower obtains knowledge thereof,
notice of (x) the occurrence of any event which constitutes a Default or
Event of Default which notice
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shall specify the nature thereof, the period of existence thereof and what
action the Borrower proposes to take with respect thereto and (y) the
commencement of or any significant development in any litigation or
governmental proceeding pending against Holdings, the Borrower or any of
its Subsidiaries which is likely to have a Material Adverse Effect or is
likely to have a material adverse effect on the ability of the Borrower to
perform its obligations hereunder or under any other Credit Document.
(g) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy of each
other final report or "management letter" submitted to Holdings or the
Borrower by its independent accountants in connection with any annual,
interim or special audit made by it of the books of Holdings and/or the
Borrower.
(h) ENVIRONMENTAL MATTERS. Promptly upon, and in any event within 20
Business Days after an officer of Holdings, the Borrower or any Subsidiary
obtains knowledge thereof, notice of one or more of the following
environmental matters: (i) any pending or threatened (in writing) material
Environmental Claim against, or for which liability would attach to, the
Borrower or any of its Subsidiaries or any Real Property owned or operated
by the Borrower or any of its Subsidiaries; (ii) any condition or
occurrence on or arising from any Real Property owned or operated by the
Borrower or any of its Subsidiaries that (a) results in material
noncompliance by Holdings, the Borrower or any of its Subsidiaries with any
applicable material Environmental Law or (b) would reasonably be expected
to form the basis of a material Environmental Claim against, or for which
liability would attach to, the Borrower or any of its Subsidiaries or any
such Real Property; (iii) any condition or occurrence on any Real Property
owned or operated by the Borrower or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject to any
material restrictions on the ownership, occupancy, use or transferability
by the Borrower or any of its Subsidiaries of such Real Property under any
Environmental Law; and (iv) the taking of any material removal or remedial
action in response to the actual or alleged presence of any Hazardous
Material on any Real Property owned or operated by the Borrower or any of
its Subsidiaries as required by any Environmental Law or any governmental
or other administrative agency, and all such notices shall describe in
reasonable detail the nature of the claim, investigation, condition,
occurrence or removal or remedial action and the Borrower's or such
Subsidiary's response thereto.
(i) OTHER INFORMATION. Promptly upon transmission thereof, (i)
copies of any filings and registrations with, and reports to, the
Securities and Exchange Commission or any successor thereto (the "SEC") by
Holdings, the Borrower or any of its Subsidiaries and (ii) with reasonable
promptness, such other information or documents (financial or otherwise) as
the Agent on its own behalf or on behalf of the Required Banks may
reasonably request from time to time.
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1.072 BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will
cause its Subsidiaries to, permit, upon reasonable notice to the chief financial
officer, controller or any other Authorized Officer of the Borrower officers and
designated representatives of the Agent or the Required Banks to visit and
inspect any of the properties or assets of the Borrower and any of its
Subsidiaries in whomsoever's possession, and to examine the books of account of
Holdings, the Borrower and any of its Subsidiaries and discuss the affairs,
finances and accounts of Holdings, the Borrower and of any of its Subsidiaries
with, and be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as the Agent or the Required Banks may desire.
1.073 INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect insurance in
such amounts, covering such risks and liabilities and with such deductibles or
self-insured retentions as are in accordance with normal industry practice,
provided that in no event will any such deductible or self-insured retention in
respect of liability claims or in respect of casualty damage, exceed, in each
such case, (i) $250,000 per occurrence or (ii) $1,000,000 in the aggregate per
fiscal year. At any time that insurance at the levels described in Annex VII is
not being maintained by the Borrower and its Subsidiaries, the Borrower will
notify the Banks in writing thereof and, if thereafter notified by the Agent to
do so, the Borrower will, and will cause its Subsidiaries to, obtain insurance
at such levels at least equal to those set forth in Annex VII to the extent then
generally available (but in any event within the deductible or self-insured
retention limitations set forth in the preceding sentence) or otherwise as are
acceptable to the Agent. The Borrower will, and will cause each of its
Subsidiaries to, furnish on the Initial Borrowing Date and annually thereafter
to the Agent a summary of the insurance carried together with certificates of
insurance and other evidence of such insurance, if any, naming the Collateral
Agent as an additional insured and/or loss payee.
1.074 PAYMENT OF TAXES. The Borrower will pay and discharge, and
will cause each Subsidiary to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims which, if unpaid, might become a Lien or charge
upon any properties of Holdings, the Borrower or any of its Subsidiaries,
provided that neither Holdings, the Borrower nor any Subsidiary shall be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves (in the good faith judgment of the management of the Borrower) with
respect thereto in accordance with GAAP.
1.075 CONSOLIDATED CORPORATE FRANCHISES. The Borrower will do, and
will cause each Subsidiary to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its existence, material rights and
authority, provided that any transaction permitted by Section 8.02 will not
constitute a breach of this Section 7.05.
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1.076 COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will
cause each Subsidiary to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property other than those the non-compliance with which would not have a
Material Adverse Effect or would not have a material adverse effect on the
ability of the Borrower to perform its obligations under any Credit Document.
1.077 ERISA. As soon as possible and, in any event, within 10 days
after the Borrower or and of its Subsidiaries or ERISA Affiliates knows or has
reason to know of the occurrence of any of the following, the Borrower will
deliver to each of the Banks a certificate of the chief financial officer of the
Borrower setting forth details as to such occurrence and such action, if any,
which the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC,
a Plan participant (other than notices relating to an individual participant's
benefits) or the Plan administrator with respect thereto: that a Reportable
Event has occurred; that an accumulated funding deficiency has been incurred or
an application is reasonably likely to be or has been made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that a
Plan which has an Unfunded Current Liability has been or may be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA; that a
Plan has an Unfunded Current Liability and there is a failure to make a required
contribution, which gives rise to a lien under ERISA or the Code; that
proceedings are reasonably likely to be or have been instituted to terminate a
Plan which has an Unfunded Current Liability; that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent contribution
to a Plan; that the Borrower, any Subsidiary or any ERISA Affiliate will or may
incur any liability (including, any contingent or secondary liability) to or on
account of the termination of or withdrawal from a Plan under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under
Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409, 502(l) or
502(l) of ERISA or that the Borrower or any Subsidiary or Holdings may incur any
material liability pursuant to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA). Upon
request of a Bank, the Borrower will deliver to such Bank a complete copy of the
annual report (Form 5500) of each Plan required to be filed with the Internal
Revenue Service. In addition to any certificates or notices delivered to the
Banks pursuant to the first sentence hereof, copies of any annual reports and
any other material notices received by Holdings, the Borrower or any Subsidiary
with respect to a Plan shall be delivered to the Banks no later than 10 days
after the later of the date such notice has been filed with the Internal Revenue
Service or the PBGC, given to Plan participants (other than notices relating to
an individual participant's benefits) or received by Holdings, the Borrower or
such Subsidiary.
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1.078 GOOD REPAIR. The Borrower will, and will cause each of its
Subsidiaries to, ensure that its properties and equipment used or useful in its
business in whomsoever's possession they may be, are kept in good repair,
working order and condition, normal wear and tear excepted, and, subject to
Section 8.05, that from time to time there are made in such properties and
equipment all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner
useful or customary for companies in similar businesses.
1.079 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries' fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries' fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
7.10 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) The Borrower will,
and will cause its Subsidiaries to, grant to the Collateral Agent security
interests and mortgages (each an "Additional Mortgage") in such owned Real
Property of the Borrower and its Subsidiaries acquired after the Initial
Borrowing Date as may be requested from time to time by the Agent. Such
Mortgages shall be granted pursuant to documentation reasonably satisfactory in
form and substance to the Agent and shall constitute valid and enforceable Liens
superior to and prior to the rights of all third Persons and subject to no other
Liens except as are permitted by Section 8.03. The Additional Mortgages or
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish, perfect, preserve
and protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Additional Mortgages and all taxes, fees and other charges
payable in connection therewith shall have been paid in full.
(b) The Borrower will, and will cause its Subsidiaries to, at the
expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, real property surveys, reports
and other assurances or instruments and take such further steps relating to the
collateral covered by any of the Security Documents as the Collateral Agent may
reasonably require. Furthermore, the Borrower shall cause to be delivered to
the Collateral Agent such opinions of counsel, title insurance and other related
documents as may be requested by the Agent to assure themselves that this
Section 7.10 has been complied with.
(c) The Borrower agrees that each action required above by this
Section 7.10 shall be completed as soon as possible, but in no event later than
60 days after such action is requested to be taken by the Agent or the Required
Banks, provided that in no event shall the Borrower be required to take any
action, other than using its reasonable commercial efforts without any material
expenditure, to obtain consents from third parties with respect to its
compliance with this Section 7.10.
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(d) Within 30 days after the Effective Date, the Borrower shall have
delivered to the Agent environmental Phase I reviews from Persons reasonably
satisfactory to the Agent covering the properties of the Borrower and its
Subsidiaries, the scope and results of which shall be reasonably satisfactory to
the Agent.
(e) Within 30 days after the Effective Date, the Borrower shall
deliver to the Agent mortgagee title insurance policies issued by title insurers
reasonably satisfactory to the Collateral Agent (the "Mortgage Policies") in
amounts reasonably satisfactory to the Collateral Agent and assuring the
Collateral Agent that the Mortgages in respect of the Mortgaged Properties are
valid and enforceable first priority mortgage Liens on the respective Mortgaged
Properties, free and clear of all defects and encumbrances except Permitted
Encumbrances. Such Mortgage Policies shall be in form and substance reasonably
satisfactory to the Collateral Agent and shall include an endorsement for future
advances under this Agreement, the Notes and the Mortgages, for mechanics liens
and for any other matter that the Collateral Agent in its discretion may
reasonably request.
7.11 CORPORATE SEPARATENESS. The Borrower will take, and will cause
each of its Subsidiaries to take, all such action as is necessary to keep the
operations of the Borrower and its Subsidiaries separate and apart from those of
Holdings, including, without limitation, ensuring that all customary formalities
regarding corporate existence, including holding regular board of directors'
meetings and maintenance of corporate records, are followed. All financial
statements of the Borrower and its Subsidiaries provided to creditors will
clearly evidence the corporate separateness of the Borrower and its Subsidiaries
from Holdings. Finally, neither the Borrower nor any of its Subsidiaries will
take any action, or conduct its affairs in a manner which is likely to result in
the corporate existence of Holdings on the one hand, and the Borrower and its
Subsidiaries on the other, being ignored, or in the assets and liabilities of
the Borrower or any of its Subsidiaries being substantively consolidated with
those of Holdings in a bankruptcy, reorganization or other insolvency
proceeding. No action expressly provided for in this Agreement, the other
Credit Documents, the AF Credit Agreement, the Senior Notes and/or the Discount
Notes will breach this covenant.
7.12 COMPLIANCE WITH ENVIRONMENTAL LAWS.(i) The Borrower will
comply, and the Borrower will cause each of its Subsidiaries to comply, with all
Environmental Laws applicable to the ownership, lease or use of all Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (ii) neither the Borrower nor any of its Subsidiaries
will generate, use, treat, store, release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of Hazardous Materials
on any Real Property now or hereafter owned, leased or operated by the Borrower
or any of its Subsidiaries, or transport or permit the transportation of
Hazardous Materials to or from any such Real Property, except to the extent that
the failure to comply with the requirements specified in clause (i) or (ii)
above, either individually or in
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the aggregate, would not reasonably be expected to have a Material Adverse
Effect. If required to do so under any applicable directive or order of any
governmental agency, the Borrower agrees to undertake, and cause each of its
Subsidiaries to undertake, any clean up, removal, remedial or other action
necessary to remove and clean up any Hazardous Materials from any Real Property
owned, leased or operated by the Borrower or any of its Subsidiaries in
accordance with, in all material respects, the requirements of all applicable
Environmental Laws and in accordance with, in all material respects, such orders
and directives of all governmental authorities, except to the extent that the
Borrower or such Subsidiary is contesting such order or directive in good faith
and by appropriate proceedings and for which adequate reserves have been
established to the extent required by generally accepted accounting principles.
SECTION 8. NEGATIVE COVENANTS. The Borrower hereby covenants and
agrees, as of the Effective Date and thereafter for so long as this Agreement is
in effect and until the Commitments have terminated, no Notes or Letters of
Credit are outstanding and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full,
that (it being agreed that no provision of Section 8.02, 8.03, 8.04, 8.06, 8.08,
8.09 or 8.10 shall at any time be defaulted by, or shall be interpreted to
prohibit, any action by the Borrower or any of its Subsidiaries to the extent
(x) such action was not prohibited by the LaSalle Loan Agreement and (y) a
restriction on any such action is prohibited by Section 3.12 of the Senior Note
Indenture and/or Section 3.13 of the Discount Note Indenture, in each case as in
effect on the Effective Date, to the extent the Senior Notes and the Discount
Notes, respectively, are then outstanding:
1.081 CHANGES IN BUSINESS. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any line of business other than the
business of outdoor advertising, including transit and bus shelter, stadium,
transport terminal and other similar out-of-home advertising services and any
administrative or similar activities reasonably related thereto.
1.082 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC. The
Borrower will not, and will not permit any Subsidiary to, wind up, liquidate or
dissolve its affairs, or enter into any transaction of merger or consolidation,
sell or otherwise dispose of all or any part of its property or assets (other
than inventory or obsolete equipment or excess equipment no longer needed in the
conduct of the business in the ordinary course of business) or purchase, lease
or otherwise acquire all or any part of the property or assets of any Person
(other than purchases or other acquisitions of inventory, leases, materials and
equipment in the ordinary course of business) or agree to do any of the
foregoing at any future time, except that the following shall be permitted:
(a) any Subsidiary of the Borrower other than Naegele may be merged
or consolidated with or into, or be liquidated into, the Borrower (so long
as the Borrower is the surviving corporation) or any other Subsidiary (so
long as Naegele is the
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surviving corporation if it is such other Subsidiary), or all or any part
of its business, properties and assets may be conveyed, leased, sold or
transferred to the Borrower or any other Subsidiary;
(b) capital expenditures to the extent within the limitations set
forth in Section 8.05 hereof;
(c) the investments, acquisitions and transfers or dispositions of
properties permitted pursuant to Section 8.06;
(d) each of the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
such lease does not create a Capitalized Lease Obligation not otherwise
permitted by Section 8.04(d));
(e) licenses or sublicenses by the Borrower and its Subsidiary of
software, customer lists, trademarks and other intellectual property in the
ordinary course of business, provided, that such licenses or sublicenses
shall not interfere with the business of the Borrower or any Subsidiary;
(f) other sales or dispositions of assets (I) for cash in an amount
equal to the fair market value thereof as determined by the Borrower and/or
(II) in exchange for other assets permitted to be held under Section 8.01
provided that, in each case, (i) the assets so sold or disposed of,
together with all other assets, previously sold or disposed of pursuant to
this clause (f) after or during the Calculation Period applicable to such
sale or disposition, shall not have generated Adjusted EBITDA of the
Borrower during such Calculation Period (taken as one accounting period)
equal to 15% or more of the aggregate Adjusted EBITDA of the Borrower
during such Calculation Period (taken as one accounting period) and (ii)
the assets so sold or disposed of, together with all other assets
previously sold or disposed of pursuant to this clause(f) after the
Effective Date, shall not have generated Adjusted EBITDA of the Borrower
during the period (taken as one accounting period) commencing on the
Effective Date and ending on the last day of the last month for which
financial statements of the Borrower are reasonably available equal to 25%
or more of the aggregate Adjusted EBITDA of the Borrower during such period
(taken as one accounting period), and, provided further, that (x) the sale
or disposition of the capital stock of any Subsidiary of the Borrower shall
be prohibited unless it is for all of the outstanding capital stock of such
Subsidiary owned by the Borrower and (y) Naegele may not be sold or
disposed of pursuant to this clause (f);
(g) other sales or dispositions of assets in each case to the extent
the Required Banks have consented in writing thereto and subject to such
conditions as may be set forth in such consent;
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(h) any Subsidiary other than Naegele may be liquidated into the
Borrower; and
(i) Permitted Acquisitions.
1.083 LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any such Subsidiary whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to the
Borrower or any of its Subsidiaries) or assign any right to receive income, or
file or permit the filing of any financing statement under the UCC or any other
similar notice of Lien under any similar recording or notice statute, except:
(a) Liens for taxes not yet due or Liens for taxes being contested in
good faith and by appropriate proceedings for which adequate reserves (in
the good faith judgment of the management of the Borrower) have been
established;
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business, such as carriers', warehousemen's and mechanics' Liens,
statutory landlord's Liens, and other similar Liens arising in the ordinary
course of business, and (x) which do not in the aggregate materially
detract from the value of such property or assets or materially impair the
use thereof in the operation of the business of the Borrower or any
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement or the other
Credit Documents;
(d)(x) Liens on assets of the Borrower and each Subsidiary existing
on the Effective Date and listed on Part A of Annex VIII hereto, without
giving effect to any subsequent extensions or renewals thereof, (y) Liens
on assets of the Borrower and each Subsidiary existing on the Effective
Date and added to Part B of Annex VIII by the Borrower and the Agent within
30 days after the Effective Date so long as such Liens are deemed
immaterial by the Agent and (z) immaterial Liens on assets of the Borrower
and each Subsidiary existing on the Effective Date at the locations listed
on Part B of Annex VIII;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09
provided, that no cash or property
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is deposited or delivered to secure any respective judgment or award (or
any appeal bond in respect thereof, except as permitted by the following
clause (f));
(f) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the
ordinary course of business (exclusive of obligations in respect of the
payment for borrowed money) provided, that the aggregate amount of deposits
at any time pursuant to this clause (f) shall not exceed $500,000;
(g) Leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any of its
Subsidiaries;
(h) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(i) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(j) Purchase money Liens securing payables arising from the purchase
by the Borrower of any equipment or goods in the normal course of business,
provided that such payables shall not constitute Indebtedness;
(k) Any interest or title of a lessor or any Lien on the interest or
title of a lessor under any lease permitted by this Agreement;
(l) Liens arising pursuant to purchase money mortgages relating to,
or security interests securing Indebtedness representing the purchase price
of, assets acquired by the Borrower and/or Naegele after the Initial
Borrowing Date, provided that any such Liens attach only to the assets so
acquired and that all Indebtedness secured by Liens created pursuant to
this clause (l) shall not exceed $1,000,000 at any time outstanding;
(m) Liens created pursuant to Capital Leases permitted pursuant to
Section 8.04(d);
(n) Liens on assets of Subsidiaries of the Borrower in favor of the
Borrower; and
(o) Liens on assets of the Borrower securing Indebtedness not in
excess of $1,000,000 at any time outstanding.
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1.084 INDEBTEDNESS. The Borrower will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement, the other
Credit Documents and the AF Credit Agreement;
(b) Indebtedness owing by (i) any Subsidiary to the Borrower or
another Subsidiary and (ii) the Borrower to any Subsidiary;
(c) Indebtedness of the Borrower evidenced by the Senior Notes, in an
aggregate principal amount not to exceed $65,000,000;
(d) Capitalized Lease Obligations of the Borrower and/or Naegele,
provided that the aggregate Capitalized Lease Obligations under all Capital
Leases entered into after Initial Borrowing Date shall not exceed
$5,000,000;
(e) Existing Indebtedness, without giving effect to any subsequent
extension, renewal or refinancing thereof;
(f) Indebtedness under Interest Rate Agreements to the extent entered
into on or after the Effective Date in compliance with Section 7.11 of the
AF Credit Agreement;
(g) Indebtedness incurred pursuant to purchase money mortgages
permitted by Section 8.03(l); and
(h) additional Indebtedness of the Borrower not to exceed an
aggregate outstanding principal amount of $5,000,000 at any time.
1.085 CAPITAL EXPENDITURES. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, incur Consolidated Capital Expenditures,
provided that the Borrower and Naegele may make Consolidated Capital
Expenditures (x) during the fiscal year of the Borrower ended December 31, 1996
(but only for the portion thereof commencing on the Effective Date in the case
of Naegele) (taken as one accounting period) in an aggregate amount not in
excess of $6,000,000 and (y) during each successive fiscal year of the Borrower
in an aggregate amount not in excess of 105% of the maximum amount for the
immediately prior 12-month period.
(b) In the event that the maximum amount which is permitted to be
expended in respect of Consolidated Capital Expenditures during any fiscal year
pursuant to Section 8.05(a) (without giving effect to this clause (b)) is not
fully expended during such fiscal year, the maximum amount which may be expended
during the immediately succeeding fiscal year
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pursuant to Section 8.05(a) shall be increased by such unutilized amount
provided that such increase shall not exceed $3,000,000 in any fiscal year.
(c) In addition to the foregoing, the Borrower and Naegele may make
Consolidated Capital Expenditures in amounts in excess of those permitted under
Sections 8.05(a) and (b) provided that the amount of such additional
Consolidated Capital Expenditures shall not exceed the sum of (x) the Available
ECF Amount and (y) the Available Equity Amount, in each case as determined at
the time of, but immediately prior to, the making thereof.
1.086 INVESTMENTS AND LOANS. The Borrower will not make or permit to
exist any Investments or Loans in or to any other Person or acquire or establish
any Subsidiary, except for Permitted Investments or as permitted by the next
sentence. Notwithstanding anything contained in this Section 8.06 to the
contrary, Borrower may acquire 100% of the Capital Stock of (x) Quantum
Structure & Design, Inc. and (y) any other Person if, in the case of clause (y),
the following conditions are satisfied: (i) an Event of Default has not
occurred and is continuing under this Agreement and will not occur as a result
of, in connection with or after giving effect to such acquisition; (ii) the
Person being acquired engages exclusively in the business permitted to be
engaged in by Borrower and its Subsidiaries pursuant to Section 8.01; (iii)
title to all of the assets acquired in such acquisition is transferred by
operation of law, assignment, sale or otherwise, to Borrower within 60 days of
the consummation of such acquisition; and (iv) such acquired assets are
expressly made subject to the Liens created by the Security Documents.
1.087 SUBSIDIARIES; ETC. The Borrower will not (x) sell, assign or
otherwise encumber or dispose of, and will not permit any of its Subsidiaries
directly or indirectly to issue, sell, assign, pledge or otherwise encumber or
dispose of, any shares of a Subsidiary's capital stock or other securities (or
warrants, rights or options to acquire shares or other equity securities) of
such Subsidiary, except to the Borrower (to the extent otherwise permitted
hereunder) and except for dispositions permitted by Section 8.02, (y) after the
Initial Borrowing Date, create or permit to be created any new Subsidiary except
to the extent created in compliance with the second sentence of Section 8.06 and
(z) violate or breach the provisions of Section 3.11(a) of the Senior Note
Indenture as in effect on the Effective Date.
1.088 PREPAYMENTS OF INDEBTEDNESS, ETC. The Borrower will not, and
will not permit any of its Subsidiaries to:
(a) make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying
when due) or exchange of the Senior Notes or any other Existing
Indebtedness provided that the Borrower may Purchase Senior Notes (x) in an
amount at the time of any such Purchase equal to the Available
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ECF Amount at the time of, but immediately prior to, such Purchase provided
that at such time (i.e., immediately prior to such Purchase) the Holdings
Leverage Ratio is less than 5.00 to 1.00, (y) in an amount at the time of
any such Purchase equal to the Available Equity Amount at the time of, but
immediately prior to, such Purchase and (z) as otherwise consented to by
the Required Banks;
(b) amend or modify, or permit the amendment or modification of, any
provisions of (x) any Senior Note Documents or (y) the AF Credit Agreement;
and/or
(c) amend, modify or change in any manner adverse to the interests of
the Banks the Certificate of Incorporation (including, without limitation,
by the filing of any certificate of designation) or By-Laws of the Borrower
or Naegele or any agreement entered into by the Borrower, with respect to
its capital stock, or the Acquisition Documents or enter into any new
agreement in any manner adverse to the interests of the Banks with respect
to the capital stock of the Borrower or Naegele.
1.089 DIVIDENDS, ETC. (a) The Borrower will not redeem, retire,
purchase or otherwise acquire, directly or indirectly, any Capital Stock of
Borrower or other evidence of ownership interest, or declare or pay dividends
upon any Capital Stock of Borrower or make any distribution of Borrower's
property or assets, provided that this Section 8.09 will not prohibit, so long
as no Event of Default shall have occurred and is continuing or would occur as a
consequence thereof, (i) the repurchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of the Borrower from the
estate of Daniel L. Simon solely out of the proceeds of any policy of insurance
maintained to provide funds for such purpose, (ii) the payment of dividends to
Holdings in an annual amount not to exceed $120,000 to fund payments of interest
on the promissory note of Holdings held by William H. Smith (or his successors
in interest), (iii) the payment of cash Dividends to Holdings to the extent the
proceeds are promptly used to pay administrative costs arising in the ordinary
course of business, (iv) the payment of cash Dividends to Holdings to be
promptly utilized by Holdings to Purchase its Common Stock (or options or
warrants to purchase such Common Stock) from officers, employees and directors
(or their estates) upon the death, permanent disability, retirement or
termination of employment of any such Person or otherwise in accordance with any
stock option plan or any employee stock ownership plan or warrant plan and (v)
the payment of cash Dividends to Holdings to the extent that the proceeds are
used on the date of receipt to Purchase Discount Notes provided that any such
Dividend will not exceed the Modified Available Amount at the time of, but
immediately prior to, the making of such Dividend.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or
restriction which prohibits or otherwise restricts (A) the ability of any
Subsidiary to (a) pay dividends or make other distributions or pay any
Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or advances
to the Borrower or any Subsidiary, (c) transfer any of its properties or assets
to the
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Borrower or any Subsidiary or (B) the ability of the Borrower or any other
Subsidiary of the Borrower to create, incur, assume or suffer to exist any Lien
upon its property or assets to secure the Obligations, other than prohibitions
or restrictions existing under or by reason of: (i)this Agreement, the other
Credit Documents, the AF Credit Agreement, the Senior Note Documents and the
Discount Notes;(ii) applicable law;(iii) customary non-assignment provisions
entered into in the ordinary course of business and consistent with past
practices; (iv)any restriction or encumbrance with respect to a Subsidiary of
the Borrower imposed pursuant to an agreement which has been entered into for
the sale or disposition of all or substantially all of the capital stock or
assets of such Subsidiary, so long as such sale or disposition is permitted
under this Agreement; and (v) Liens permitted under Section 8.03 and any
documents or instruments governing the terms of any Indebtedness or other
obligations secured by any such Liens, provided that such prohibitions or
restrictions apply only to the assets subject to such Liens.
8.10 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any Subsidiary to, sell, lease, license, transfer, exchange, or
otherwise dispose of any of its properties, assets or services to, or purchase,
lease, or license the use of any property, assets or services from, or transfer
funds to, or enter into any contract, agreement, understanding, loan, advance or
guarantee with, to or for the benefit of, any Affiliate (each of the foregoing,
an "Affiliate Transaction," whether constituting one transaction or a series of
related transactions), unless (a) such Affiliate Transaction is on terms that
are no less favorable to the Borrower or the relevant Subsidiary than those that
would have been obtained in a comparable transaction by the Borrower or such
Subsidiary with an unrelated person and (b) Borrower delivers to the Agent (i)
with respect to any Affiliate Transaction involving aggregate payments in excess
of $250,000, an officers' certificate setting forth a resolution of the Board of
Directors of the Borrower approved by a majority of the members of the Board of
Directors (and a majority of the disinterested members of the Board of
Directors, if any) certifying that such Affiliate Transaction complies with
clause(a) above and (ii) with respect to any Affiliate Transaction involving
aggregate payments in excess of $3.0 million, an opinion as to the fairness,
from a financial point of view, of such Affiliate Transaction to the Borrower or
such Subsidiary issued by an independent investment banking firm of national
standing with total assets in excess of $1.0 billion. The foregoing limitation
does not limit, and shall not apply to, (i) the payment of reasonable annual
compensation to directors or executive officers of the Borrower or any
Subsidiary thereof, (ii) transactions described in Annex IX hereto, provided
that the fees described in Annex IX shall accrue and not be paid at any time
that a Default or an Event of Default specified in Section 9.01 shall occur and
be continuing or (iii) payments by the Borrower to Holdings under the Tax
Sharing Agreement.
8.11 FIXED CHARGE COVERAGE RATIO. The Borrower will not permit the
ratio of (i) Adjusted EBITDA of the Borrower to (ii) Consolidated Fixed Charges
of the Borrower for any 12 month period (taken as one accounting period) ending
on a Measurement Date (or if less the period from the Initial Borrowing Date to
such Measurement Date) to be less than 1.00 to 1.
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8.12 MINIMUM ADJUSTED EBITDA. The Borrower will not permit Adjusted
EBITDA of the Borrower for any 12 month period (taken as one accounting period)
ending on a Measurement Date occurring in a period set forth below to be less
than the amount set forth opposite such period:
Period Amount
------ ------
Effective Date through March 30, 1997 $30,000,000
March 31, 1997 through March 30, 1998 $32,000,000
March 31, 1998 through March 30, 1999 $33,500,000
Thereafter $35,000,000
8.13 BORROWER LEVERAGE RATIO. The Borrower will not permit the
Borrower Leverage Ratio as of any Measurement Date occurring in a period set
forth below to be more than the ratio set forth opposite such period:
Period Ratio
------ -----
Effective Date through March 30, 1997 5.25 to 1.0
March 31, 1997 through March 30, 1998 4.75 to 1.0
March 31, 1998 through March 30, 1999 4.00 to 1.0
Thereafter 3.50 to 1.0
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
1.091 PAYMENTS. The Borrower shall (i) default in the payment when
due of any principal of the Loans or (ii) default, and such default shall
continue for five or more days, in the payment when due of any interest on the
Loans or any Fees or any other amounts owing hereunder or under any other Credit
Document; or
1.092 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by the Borrower herein or in any other Credit Document or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto shall prove to be untrue in any material respect on the date as of
which made or deemed made; or
1.093 COVENANTS. The Borrower shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 7.10, 7.11 or 8, or (b) default in the due performance or observance by
it of any term, covenant or agreement (other than those referred to in Section
9.01, 9.02 or clause (a) of this Section 9.03) contained in this Agreement and
such default shall continue unremedied for a period of at least 30 days after
notice to the defaulting party by the Agent or the Required Banks; or
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1.094 DEFAULT UNDER OTHER AGREEMENTS. (a) Holdings, the Borrower or
any of its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
applicable thereto or (ii) default in the observance or performance of any
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause any such Indebtedness to become due prior to its stated maturity; or (b)
any such Indebtedness of Holdings, the Borrower or any of its Subsidiaries shall
be declared to be due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof,
provided that it shall not constitute an Event of Default pursuant to this
Section 9.04 unless the principal amount of any one issue of such Indebtedness
exceeds $2,500,000 individually or in the aggregate at any one time; or
1.095 BANKRUPTCY, ETC. Holdings, the Borrower or any of its
Subsidiaries shall commence a voluntary case concerning itself under Title 11 of
the United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against Holdings, the Borrower or any of its Subsidiaries and the
petition is not controverted within 10 days, or is not dismissed within 60 days,
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of Holdings, the Borrower or any of its Subsidiaries; or Holdings, the
Borrower or any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to Holdings, the Borrower or any of its
Subsidiaries; or there is commenced against Holdings, the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or Holdings, the Borrower or any of its Subsidiaries is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; Holdings, the Borrower or any of its Subsidiaries
suffers any appointment of any custodian or the like for it or any substantial
part of its property to continue undischarged or unstayed for a period of 60
days; or Holdings, the Borrower or any of its Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate action is taken by
Holdings, the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
1.096 ERISA. (a) A single-employer plan (as defined in Section 4001
of ERISA) established by the Borrower, any of its Subsidiaries or any ERISA
Affiliate shall fail to maintain the minimum funding standard required by
Section 412 of the Code for any plan year or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code or shall provide security to induce the issuance of such waiver or
extension, (b) any Plan is or shall have been or is likely to be terminated or
the subject of termination proceedings under ERISA or an event has occurred
entitling the PBGC to terminate
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a Plan under Section 4042(a) of ERISA, (c) any Plan shall have an Unfunded
Current Liability or (d) the Borrower or a Subsidiary or any ERISA Affiliate has
incurred or is likely to incur a material liability to or on account of a
termination of or a withdrawal from a Plan under Section 515, 4062, 4063, 4064,
4201 or 4204 of ERISA; and there shall result from any such event or events
described in the preceding clauses of this Section 9.06 the imposition of a Lien
upon the assets of Holdings, the Borrower or any Subsidiary, the granting of a
security interest, or a liability or a material risk of incurring a liability to
the PBGC or a Plan or a trustee appointed under ERISA or a penalty under Section
4971 of the Code, in each case which would have, in the opinion of the Required
Banks a Material Adverse Effect; or
1.097 SECURITY DOCUMENTS. Any Security Document shall cease to be in
full force and effect, or shall cease to give the Collateral Agent any Lien
encumbering assets with an aggregate fair market value in excess of $2,500,000
(and, if encumbering assets with a fair market value of less than $2,500,000,
for a period greater than thirty or more days), or any material rights, powers
and privileges purported to be created thereby in favor of the Collateral Agent
or the Borrower shall default in any material respect in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any such Security Document; or
1.098 HOLDINGS. (A) Holdings shall after the Initial Borrowing Date
(i) incur any Indebtedness, (ii) grant or create any Lien on any of its assets
that secures Indebtedness, (iii) modify or amend the Discount Note Indenture or
Discount Notes or (except with the proceeds of equity contributions from
Existing UOH Stockholders) prepay any of the Discount Notes, (iv) engage in any
business or activity other than the ownership of all of the capital stock of the
Borrower and administrative activities directly related thereto, (v) sell or
dispose of any of, or otherwise cease to own all of, the capital stock of the
Borrower, (vi) change its fiscal quarters or fiscal year from those applicable
also to the Borrower, (vii) fail to maintain its own payroll and separate books
of account and bank accounts separate from those of the Borrower and its
Subsidiaries, (viii) fail to pay its liabilities, including all administrative
expenses, from its own separate assets, (ix) fail to separately identify and
segregated its assets from the assets of the Borrower and its Subsidiaries,
except in each case (a) as expressly required by any of the Shareholders'
Agreements, Management Agreements, Tax Sharing Agreements, subscription
agreements with members of management and the Discount Notes, all as in effect
on the Effective Date, (b) as expressly required by law, (c) Holdings issuing
Capital Stock in any initial or subsequent public offering to the extent the
proceeds thereof are used to repay the Loans as required by Section 4.02(A)(d)
hereof and (d) Holdings Purchasing Discount Notes (x) in an amount at the time
of any such Purchase equal to the Available ECF Amount at the time of, but
immediately prior to, such Purchase provided that at such time (i.e.,
immediately prior to such Purchase) the Holdings Leverage Ratio is less than
5.00 to 1.00 or (y) in an amount at the time of any such Purchase equal to the
Available Equity Amount at the time of, but immediately prior to, such Purchase
and/or (x) amend, modify or change in any way adverse to the interests of the
Banks, its Certificate of Incorporation (including, without
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limitation, by the filing or modification of any certificate of designation) or
By-Laws or any agreement entered into by Holdings with respect to its capital
stock; and/or
(B) The Holdings Leverage Ratio as of any Measurement Date occurring
in a period set forth below is more than the ratio set forth opposite such
period:
Period Ratio
------ -----
Effective Date through March 30, 1997 6.25 to 1.0
March 31, 1997 through March 30, 1998 5.75 to 1.0
Thereafter 5.00 to 1.0; and/or
(C) The ratio of (i) Adjusted EBITDA of Holdings to (ii) Consolidated
Cash Interest Expense of Holdings for any 12 month period (taken as one
accounting period) ending on a Measurement Date (or if less the period from the
Effective Date to such Measurement Date) occurring in a period set forth below
is less than the ratio set forth opposite such period.
Period Ratio
------ -----
Effective Date through March 30, 1997 1.75 to 1.0
March 31, 1997 through March 30, 1998 2.00 to 1.0
March 31, 1998 through March 30, 1999 2.25 to 1.0
March 31, 1999 through March 30, 2000 2.25 to 1.0
March 31, 2000 through March 30, 2001 2.00 to 1.0
Thereafter 2.25 to 1.0; or
1.099 JUDGMENTS. One or more judgments or decrees shall be entered
against Holdings, the Borrower or any of its Subsidiaries involving a liability
of $2,500,000 or more individually or in the aggregate for all such judgments
and decrees for Holdings, the Borrower and its Subsidiaries (not paid or to the
extent not covered by insurance) and any such judgments or decrees shall not
have been vacated, discharged or stayed or bonded pending appeal within 60 days
from the entry thereof; or
9.10 AF CREDIT AGREEMENT. An Event of Default under and as defined
in the AF Credit Agreement shall have occurred and be continuing;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Agent shall, upon the written request of the
Required Banks, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Agent or any Bank to
enforce its claims against the Borrower, except as otherwise specifically
provided for in this Agreement (provided that, if an Event of Default specified
in Section 9.05 shall occur with respect to the Borrower, the result which would
occur upon the giving of written notice by the Agent as specified in clauses (i)
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Commitment terminated, whereupon the Commitment of each
Bank shall forthwith terminate immediately and any
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Commitment Commission shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and all obligations owing hereunder to be, whereupon the
same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; and/or (iii) enforce, as Collateral Agent (or direct the Collateral
Agent to enforce), any or all of the Liens and security interests created
pursuant to the Security Documents.
SECTION 10. DEFINITIONS. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acquisition" shall mean the acquisition by the Borrower of 100% of
the outstanding capital stock of NOA pursuant to the Acquisition Documents,
followed immediately by the merger of NOA with and into the Borrower.
"Acquisition Agreement" shall mean the Stock Purchase Agreement, dated
February 27, 1996, among the Borrower and the Sellers listed therein as
delivered to the Banks pursuant to Section 5.01(J), as the same may be amended
or modified in accordance with the provisions thereof and hereof.
"Acquisition Documents" shall mean the Acquisition Agreement and all
other documents entered into to effectuate the Acquisition.
"Acquisition Facility Termination Date" shall mean the first date
occurring on or after the AR Termination Date under and as defined in the AF
Credit Agreement on which all Acquisition Loans have been repaid in full.
"Acquisition Loans" shall mean and include the AR Loans and the Term
Loans as defined in the AF Credit Agreement.
"Additional Mortgage" shall have the meaning provided in Section 7.10.
"Adjusted EBITDA" of any Person shall mean, for any period (x) the
Consolidated EBITDA of such Person for such period plus or minus (y) the
adjustments thereto provided for in Exhibit H.
"Adjusted Percentage" shall mean (x) at a time when no Bank Default
exists, for each Bank such Bank's Percentage and (y) at a time when a Bank
Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii) for
each Bank that is a Non-Defaulting Bank, the percentage determined by dividing
such Bank's Revolving Commitment at such time by the Adjusted Total Revolving
Commitment at such time, it being understood that all references herein to
Revolving Commitments and the Adjusted Total Revolving Commitment at a time
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when the Total Revolving Commitment or Adjusted Total Revolving Commitment, as
the case may be, has been terminated shall be references to the Revolving Loan
Commitments or Adjusted Total Revolving Commitment, as the case may be, in
effect immediately prior to such termination, PROVIDED that (A) no Bank's
Adjusted Percentage shall change upon the occurrence of a Bank Default from that
in effect immediately prior to such Bank Default if, after giving effect to such
Bank Default and any repayment of Revolving Loans and Swingline Loans at such
time pursuant to Section 4.02(A)(a) or otherwise, the sum of (i) the aggregate
outstanding principal amount of Revolving Loans of all Non-Defaulting Banks plus
(ii) the aggregate outstanding principal amount of Swingline Loans plus (iii)
the Letter of Credit Outstandings, exceeds the Adjusted Total Revolving Loan
Commitment; (B) the changes to the Adjusted Percentage that would have become
effective upon the occurrence of a Bank Default but that did not become
effective as a result of the preceding clause (A) shall become effective on the
first date after the occurrence of the relevant Bank Default on which the sum of
(i) the aggregate outstanding principal amount of the Revolving Loans of all
Non-Defaulting Banks plus (ii) the aggregate outstanding principal amount of the
Swingline Loans plus (iii) the Letter of Credit Outstandings is equal to or less
than the Adjusted Total Revolving Commitment; and (C) if (i) a Non-Defaulting
Bank's Adjusted Percentage is changed pursuant to the preceding clause (B) and
(ii) any repayment of such Bank's Revolving Loans, or of Unpaid Drawings or of
Swingline Loans, that were made during the period commencing after the date of
the relevant Bank Default and ending on the date of such change to its Adjusted
Percentage must be returned to the Borrower as a preferential or similar payment
in any bankruptcy or similar proceeding of the Borrower, then the change to such
Non-Defaulting Bank's Adjusted Percentage effected pursuant to said clause (B)
shall be reduced to that positive change, if any, as would have been made to its
Adjusted Percentage if (x) such repayments had not been made and (y) the maximum
change to its Adjusted Percentage would have resulted in the sum of the
outstanding principal of Revolving Loans made by such Bank plus such Bank's new
Adjusted Percentage of the outstanding principal amount of Swingline Loans and
of Letter of Credit Outstandings equalling such Bank's Revolving Commitment at
such time.
"Adjusted Revolving Commitment" for each Non-Defaulting Bank shall
mean at any time the product of such Bank's Adjusted Percentage and the Adjusted
Total Revolving Commitment.
"Adjusted Total Revolving Commitment" shall mean at any time the Total
Revolving Commitment less the aggregate Revolving Commitments of all Defaulting
Banks.
"AF Bank" shall mean at any time a financial institution that is then
a Bank under and as defined in the AF Credit Agreement.
"AF Credit Agreement" shall mean the Acquisition Credit Agreement
dated as of the date hereof among the Borrower, the Banks, LaSalle as Co-Agent
and BTCo as Agent providing for the credits specified therein, as in effect on
the Effective Date hereunder and as
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the same may be modified, amended or supplemented in accordance with the terms
thereof to the extent permitted hereunder.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Agent appointed pursuant to
Section 11.09.
"Agreement" shall mean this Revolving Credit Agreement, as the same
may be from time to time further modified, amended and/or supplemented.
"Applicable Base Rate Margin" shall mean 1.50% less the Margin
Reduction Discount, if any.
"Applicable Eurodollar Margin" shall mean 2.50% less the Margin
Reduction Discount, if any.
"AR Loans" shall mean AR Loans under and as defined in the AF Credit
Agreement.
"Authorized Officer" shall mean any senior officer of the Borrower
designated as such in writing to the Agent by the Borrower in each case to the
extent acceptable to the Agent.
"Available ECF Amount" shall have the meaning provided in the AF
Credit Agreement.
"Available Equity Amount" shall have the meaning provided in the AF
Credit Agreement.
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of Loans or
to fund its portion of any unreimbursed payments under Section 2.05(c) or (ii) a
Bank having notified the Agent and/or
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the Borrower that it does not intend to comply with the obligations under
Section 1.01 or under Section 2.05(c), in the case of either (i) or (ii) as a
result of the appointment of a receiver or conservator with respect to such Bank
at the direction or request of any regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher, (i) the rate which is
1/2 of 1% in excess of the Federal Funds Effective Rate and (ii) the Prime
Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower Leverage Ratio" shall mean, at any Measurement Date, the
ratio of (x) Consolidated Debt of the Borrower on such date to (y) Adjusted
EBITDA of the Borrower for the 12 month period (taken as one accounting period)
ending on such date.
"Borrower Pledge Agreement" shall mean a Pledge Agreement in the form
of Exhibit E to the AF Credit Agreement, as in effect on the Effective Date and
as the sum may be modified, amended or supplemented from time to time in
accordance with the terms hereof and thereof.
"Borrowing" shall mean the incurrence of (i) Swingline Loans by the
Borrower from BTCo on a given date and (ii) one Type of Revolving Loan by the
Borrower from all of the Banks on a PRO RATA basis on a given date (or resulting
from conversions on a given date), having in the case of Eurodollar Loans the
same Interest Period; provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of any related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in U.S. dollar deposits in the interbank Eurodollar market.
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"Calculation Period" shall mean, with respect to any sale or
disposition of assets made pursuant to Section 8.02(f), the last 12 month period
for which financial statements of the Borrower are reasonably available.
"Capital Lease" as applied to any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock, whether or not voting, including but not limited to common stock,
preferred stock, convertible debentures, warrants, options or similar rights to
acquire such capital stock, and all agreements, instruments and documents
convertible, in whole or in part, into any one or more or all of the foregoing.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Bank, (y)
any domestic commercial bank of recognized standing having capital and surplus
in excess of $500,000,000 or (z) any bank (or the parent company of such bank)
whose short-term commercial paper rating from Standard & Poor's Corporation
("S&P") is at least A-1 or the equivalent thereof or from Moody's Investors
Service, Inc. ("Moody's") is at least P-1 or the equivalent thereof (any such
bank, an "Approved Bank"), in each case with maturities of not more than six
months from the date of acquisition, (iii) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications specified
in clause (ii) above, (iv) commercial paper issued by any Bank or Approved Bank
or by the parent company of any Bank or Approved Bank and commercial paper
issued by, or guaranteed by, any industrial or financial company with a
short-term commercial paper rating of at least A-1 or the equivalent thereof by
S&P or at least P-1 or the equivalent thereof by Moody's (any such company, an
"Approved Company"), or guaranteed by any industrial company with a long term
unsecured debt rating of at least A or A2, or the equivalent of each thereof,
from S&P or Moody's, as the case may be, and in each case maturing within six
months after the date of acquisition and (v) investments in money market funds
substantially all of whose assets are comprised of securities of the type
described in clauses (i) through (iv) above.
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"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 ET
SEQ.
"Change of Control" shall mean (i) Holdings shall cease to own legally
and beneficially 100% of the outstanding capital stock of the Borrower, (ii)
prior to Holdings' initial public offering of common stock, the Permitted
Holders cease to be the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of 66-2/3% in the aggregate of
the total voting and economic ownership interests of Holdings, whether as a
result of the issuance of securities of Holdings, any merger, consolidation,
liquidation or dissolution of Holdings, any direct or indirect transfer of
securities or otherwise, (iii) Kelso Investment Associates V, L.P. and Kelso
Equity Partners V, L.P. shall cease to be the beneficial owner (as defined in
clause (ii) above) of at least 50% of the economic ownership interest of
Holdings they hold on the Initial Borrowing Date (after the consummation of the
Transaction), (iv) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined in clause (ii) above, except that a
person shall be deemed to have "beneficial ownership" of all shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 30% of the total voting and economic ownership interests of Holdings;
PROVIDED, HOWEVER, that the Permitted Holders "beneficially own" (as defined in
clause (ii) above), directly or indirectly, in the aggregate a lesser percentage
of the total voting and economic ownership interests of Holdings than such other
person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors of Holdings, or (v) during any period of two consecutive years
individuals who at the beginning of such period constituted the Board of
Directors of Holdings (together with any new directors whose election by such
Board of Directors or whose nomination for election by the stockholders of
Holdings was approved by either (i) the Permitted Holders or (ii) a vote of a
majority of the directors of Holdings then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of Holdings then in office.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents.
"Collateral Agent" shall mean the Agent acting as collateral agent for
the Banks.
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"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Common Stock" shall mean the common stock of Holdings.
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events all amounts expended or capitalized under Capital
Leases but excluding any amount representing capitalized interest) by the
Borrower and its Subsidiaries during that period that, in conformity with GAAP,
are or are required to be included in the property, plant or equipment reflected
in the consolidated balance sheet of the Borrower and its Subsidiaries, provided
that Consolidated Capital Expenditures shall in any event exclude the purchase
price paid in connection with any Permitted Acquisition (whether or not
allocable to property, plant and equipment).
"Consolidated Cash Interest Expense" of any Person shall mean, for any
period, Consolidated Interest Expense of such Person, but excluding, however,
interest expense not payable in cash and amortization of discount and deferred
issuance and financing costs.
"Consolidated Current Assets" shall mean, as to any Person at any
time, the current assets (other than cash and Cash Equivalents) of such Person
and its Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, as to any Person at any
time, the current liabilities of such Person and its Subsidiaries determined on
a consolidated basis in accordance with GAAP, but excluding all short-term
Indebtedness for borrowed money and the current portion of any long-term
Indebtedness of such Person or its Subsidiaries, in each case to the extent
otherwise included therein.
"Consolidated Debt" of any Person shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness of
such Person and its Subsidiaries on a consolidated basis as determined in
accordance with GAAP.
"Consolidated EBIT" of any Person shall mean, for any period, (A) the
sum of the amounts for such period for such Person of (i) Consolidated Net
Income, (ii) provisions for taxes based on income, (iii) Consolidated Interest
Expense and (iv) losses on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary losses LESS (B) the amount for such
period of gains on sales of assets (excluding sales in the ordinary course of
business) and other extraordinary gains, all as determined on a consolidated
basis for such Person and its Subsidiaries in accordance with GAAP.
"Consolidated EBITDA" of any Person shall mean, for any period, the
sum of the amounts for such period for such Person of (i) Consolidated EBIT,
(ii) depreciation expense
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and (iii) amortization expense, all as determined on a consolidated basis for
such Person and its Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charges" of any Person shall mean, for any period,
the sum, without duplication, for such Person of the amounts for such period of
(i) Consolidated Cash Interest Expense, (ii) Dividends paid to Holdings, (iii)
Consolidated Capital Expenditures (x) made other than pursuant to Section
8.05(c) and (y) paid in cash, (iv) taxes paid or payable in cash and (v)
scheduled payments on the Acquisition Loans and Existing Indebtedness, all as
determined on a consolidated basis for such Person and its Subsidiaries in
accordance with GAAP.
"Consolidated Interest Expense" of any Person shall mean, for any
period, total interest expense (including that attributable to Capital Leases in
accordance with GAAP) of such Person and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of such Person and its
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Agreements.
"Consolidated Net Income" of any Person (a "Designated Person") shall
mean for any period, the net income (or loss) of such Designated Person and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP, provided that there shall
be (A) deducted, in the case of the Borrower, any Dividends paid to Holdings and
(B) excluded (i) the income (or loss) of any Person (other than Subsidiaries of
the Designated Person) in which any other Person (other than the Designated
Person or any of its Subsidiaries) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to the Designated
Person or any of its Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of the Designated Person or is merged into or consolidated with the Designated
Person or any of its Subsidiaries or that Person's assets are acquired by the
Designated Person or any of its Subsidiaries, (iii) the income of any Subsidiary
of the Designated Person to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) Transaction Expenses and (v) compensation
expense resulting from the issuance of capital stock, stock options or stock
appreciation rights issued to employees, including officers, of the Designated
Person or any Subsidiary, or the exercise of such options or rights, in each
case to the extent the obligation (if any) associated therewith is not expected
to be settled by the payment of cash by the Designated Person or any Affiliate
of the Designated Person and compensation expense resulting from the repurchase
of any such capital stock, options and rights.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intending to guarantee any Indebtedness, leases,
dividends or other
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obligations ("primary obligations") of any other Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent, (a) to purchase any
such primary obligation or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation or (d)
otherwise to assure or hold harmless the owner of such primary obligation
against loss in respect thereof, provided however, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Notes, the Security
Documents and any documents executed in connection therewith.
"Credit Event" shall mean and include the making of a Loan or the
issuance of a Letter of Credit.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Discount Note Indenture" shall mean the Indenture entered into by and
between Holdings and United States Trust Company of New York, as trustee
thereunder, with respect to the Discount Notes as in effect on the Effective
Date and as the same may be modified, amended or supplemented from time to time
in accordance with the terms hereof and thereof.
"Discount Notes" shall mean the 14% Series A and Series B Senior
Secured Discount Notes due 2004 issued by Holdings under the Discount Note
Indenture and as the same may be supplemented, amended or modified from time to
time in accordance with the terms hereof and thereof.
"Dividends" shall have the meaning provided in Section 8.09.
"Effective Date" shall have the meaning provided in Section 5.01.
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"Employment Agreements" shall have the meaning provided in Section
5.01(E).
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demand letters, claims, liens, notices of noncompliance
or violation, investigations (other than internal reports prepared by the
Borrower or any of its Subsidiaries solely in the ordinary course of such
Person's business and not in response to any third party action or request of
any kind) or proceedings relating to any Environmental Law or any permit issued,
or any written approval given, under any such Environmental Law (hereafter,
"Claims"), including, without limitation, (a) any and all Claims by governmental
or regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guide, policy and rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or Hazardous Materials, including, without limitation, CERCLA;
RCRA; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
Section 1251 ET SEQ.; the Toxic Substances Control Act, 15 U.S.C. Section 7401
ET SEQ.; the Clean Air Act, 42 U.S.C. Section 7401 ET SEQ.; the Safe Drinking
Water Act, 42 U.S.C. Section 3808 ET SEQ.; the Oil Pollution Act of 1990, 33
U.S.C. Section 2701 ET SEQ. and any applicable state and local or foreign
counterparts or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the Initial Borrowing Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Holdings, the Borrower or a Subsidiary would be
deemed to be a "single employer" within the meaning of Sections 414(b), (c), (m)
and (o) of the Code.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period for
a Eurodollar Loan, (i) the offered quotation to first-class banks in the
interbank Eurodollar market by the Agent for dollar deposits of amounts in same
day funds comparable to the outstanding principal amount of the Eurodollar Loan
of the Agent for which an interest rate is
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then being determined with maturities comparable to the Interest Period to be
applicable to such Eurodollar Loan, determined as of 10:00 A.M. (New York time)
on the date which is two Business Days prior to the commencement of such
Interest Period divided (and rounded upward to the next whole multiple of 1/16
of 1%) by (ii) a percentage equal to 100% minus the then stated maximum rate of
all reserve requirements (including without limitation any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
"Existing Indebtedness" shall have the meaning provided in Section
6.21.
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.01(E)(ii).
"Existing Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Existing UOH Stockholders" shall mean the stockholders of Holdings on
the Initial Borrowing Date after giving effect to the purchase by Kelso of
Holdings' capital stock as contemplated by Section 5.01(I).
"Expiration Date" shall mean July 15, 1996.
"Expiry Date" shall mean March 31, 2003.
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three Federal Funds brokers of
recognized standing selected by the Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement; it being
understood and agreed
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that determinations in accordance with GAAP for purposes of Section 8, including
defined terms as used therein, are subject (to the extent provided therein) to
Section 12.07(a).
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that
contained, electric fluid containing levels of polychlorinated biphenyls, and
radon gas and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous waste," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any Environmental Law.
"Holdings" shall mean Universal Outdoor Holdings, Inc., a Delaware
corporation.
"Holdings Leverage Ratio" shall mean, at any Measurement Date, the
ratio of (x) Consolidated Debt of Holdings on such date to (y) Adjusted EBITDA
of Holdings for the 12 month period (taken as one accounting period) ending on
such date.
"Indebtedness" of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (iii) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such indebtedness has been assumed, (v) all Capitalized Lease Obligations
of such Person, (vi) all obligations of such Person to pay a specified purchase
price for goods or services whether or not delivered or accepted, I.E.,
take-or-pay and similar obligations, (vii) all net obligations of such Person
under Interest Rate Agreements and (viii) all Contingent Obligations of such
Person, (other than Contingent Obligations arising from the guaranty by such
Person of the obligations of the Borrower and/or its Subsidiaries to the extent
such guaranteed obligations do not constitute Indebtedness and are otherwise
permitted hereunder) provided that Indebtedness shall not include trade payables
and accrued expenses, in each case arising in the ordinary course of business.
"Initial Borrowing Date" shall mean the date upon which the initial
incurrence of Revolving Loans occurs.
"Interest Period" with respect to any Loan shall mean the interest
period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap agreement,
any interest rate cap agreement, any interest rate collar agreement or other
similar agreement or
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arrangement designed to protect the Borrower or any Subsidiary against
fluctuations in interest rates.
"Investment" shall mean, with respect to any Person, all investments
by such Person in other Persons (including Affiliates and Subsidiaries) in the
forms of loans, guarantees, advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Capital Stock or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"Kelso" shall mean Kelso & Company, L.P., a Delaware limited
partnership doing business as Kelso & Company, Inc.
"Kelso Designees" shall mean William A. Marquard, John F.
McGillicuddy, David M. Roderick, John Rutledge IRA, Michael Rapoport, Patricia
Hetter Kelso and and George L. Shinn.
"LaSalle" shall mean LaSalle National Bank.
"LaSalle Loan Agreement" shall mean the Amended and Restated Loan and
Security Agreement dated March 22, 1995 between the Borrower and LaSalle
National Bank, as in effect on the Effective Date immediately prior to the
termination thereof.
"Leasehold" of any Person means all of the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean BTCo, LaSalle with respect to the
Existing Letter of Credit and/or any Bank which at the request of the Borrower
and with the consent of the Agent agrees, in such Bank's sole discretion, to
become a Letter of Credit Issuer for purposes of issuing Letters of Credit
pursuant to Section 2.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.03(a).
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"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"Loan" means and includes each Revolving Loan and each Swingline Loan.
"Management Agreements" shall have the meaning provided in Section
5.01(E)(iv).
"Management Investors" means the "Management Investors" party to the
Stock Purchase Agreement.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(c).
"Margin Reduction Discount" shall mean zero, provided that the Margin
Reduction Discount shall be increased to 1/2 of 1%, 1% or 1 1/2%, as the case
may be, as specified in clauses (i), (ii) or (iii) below, at any time after the
Initial Borrowing Date, when, and for so long as, the ratio set forth in such
clause has been satisfied as at the Relevant Determination Date:
(i) the Margin Reduction Discount shall be 1/2 of 1% in the event
that as at the Relevant Determination Date the Modified Holdings
Leverage Ratio is equal to or greater than 4.0 to 1 but less than
5.0 to 1;
(ii) the Margin Reduction Discount shall be 1% in the event that as at
the Relevant Determination Date the Modified Holdings Leverage
Ratio is equal to or greater than 3.0 to 1 but less than 4.0 to
1; or
(iii) the Margin Reduction Discount shall be 1 1/2% in the event that
as the Relevant Determination Date the Modified Holdings Leverage
Ratio is less than 3.0 to 1.
The Modified Holdings Leverage Ratio shall be determined (x) for the last day of
a fiscal month, quarter or year, by delivery of an officer's certificate of the
Borrower to the Banks pursuant to Section 7.01(e)(i) and (y) for the date of the
incurrence of Consolidated Debt after delivery of the officer's certificate
referred to in clause (x), by delivery of an officer's certificate of the
Borrower to the Banks pursuant to Section 7.01(e)(ii), each of which
certificates shall set forth the calculation of the Modified Holdings Leverage
Ratio. The Margin Reduction Discount so determined shall apply, except as set
forth below, from five Business Days after the date on which such officer's
certificate is delivered to the Agent to the earlier of (x) the date on which
the next certificate is delivered to the Agent pursuant to Section 7.01(e)(i) or
(ii) and (y) the 30th day following the end of the fiscal month in which such
first certificate was delivered to the Agent pursuant to Section 7.01(e)(i).
Notwithstanding anything
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to the contrary contained above, the Margin Reduction Discount shall be zero (x)
if no officer's certificate has been delivered to the Banks pursuant to Section
7.01(e) (i) which sets forth the Modified Holdings Leverage Ratio for the
Relevant Determination Date or the financial statements upon which any such
calculations are based have not been delivered, until such a certificate and/or
financial statements are delivered and (y) at all times when there shall exist a
violation of Section 9.01 or an Event of Default. It is understood and agreed
that the Margin Reduction Discount as provided above shall in no event be
cumulative and only the Margin Reduction Discount available pursuant to either
clause (i), (ii) or (iii), if any, contained in this definition shall be
applicable.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on the
business, property, assets, liabilities, operations, condition (financial or
otherwise) or prospects of (x) Holdings and its Subsidiaries taken as a whole,
(y) the Borrower and its Subsidiaries taken as a whole and/or (z) with respect
to any reference to such term in Section 5, NOA and its Subsidiaries taken as a
whole.
"Maximum Swingline Amount" shall mean $5,000,000.
"Measurement Date" shall mean (x) the last day of each fiscal quarter
of the Borrower and (y) the last day of the last month ended prior to the date
of a Tested Borrowing.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans
maintained as Base Rate Loans, $500,000, (ii) for Loans maintained as Eurodollar
Loans, $1,000,000 and (iii) for Swingline Loans, $250,000.
"Modified Available Amount" shall have the meaning provided in the AF
Credit Agreement.
"Modified Holdings Leverage Ratio" shall mean, with respect to any
Relevant Measurement Date, the Holdings Leverage Ratio determined as of such
date, modified by the inclusion in the computation thereof of any incremental
Consolidated Debt of Holdings incurred after such Relevant Measurement Date and
prior to the delivery of an officer's certificate pursuant to Section 7.01(e)(i)
in respect of the next Relevant Measurement Date.
"Mortgage" shall have the meaning provided in Section 5.01(K)(d)(i).
"Mortgage Policies" shall have the meaning provided in Section
7.10(e).
"Mortgaged Properties" shall mean and include the Real Properties
owned by the Borrower and listed on Annex V.
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"Naegele" shall mean Naegele Outdoor Advertising Company, a Delaware
corporation.
"NOA" shall mean NOA Holding Company, a Delaware corporation.
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Note" shall mean and include each Revolving Note and each Swingline
Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Agent at 130 Liberty
Street, New York, New York or such other office as the Agent may designate to
the Borrower from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
the Agent, the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Participant" shall have the meaning provided in Section 2.05(a).
"Payment Office" shall mean the office of the Agent at 130 Liberty
Street, New York, New York or such other office as the Agent may designate to
the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" shall mean at any time for each Bank the percentage
obtained by dividing such Bank's Revolving Commitment by the Total Revolving
Commitment, PROVIDED that if the Total Revolving Commitment has been terminated,
the Percentage of each Bank shall be determined by dividing such Bank's
Revolving Commitment immediately prior to such termination by the Total
Revolving Commitment immediately prior to such termination.
"Permitted Acquisition" shall mean any acquisition (including through
a stock acquisition) of property or assets of a nature or type, or which will be
used in a business, permitted to be held or engaged in by Section 8.01 (x) to
the extent that the aggregate amount expended for all such acquisitions after
the Effective Date does not exceed $5,000,000 or (y) consented to in writing by
the Super-Majority Banks.
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"Permitted Encumbrances" shall mean, with respect to the Mortgaged
Property, such exceptions to title as are set forth in the title insurance
policy or title commitment delivered with respect thereto, all of which
exceptions must be reasonably acceptable to the Agent.
"Permitted Holders" means Kelso and its Affiliates, the Kelso
Designees, the Management Investors, any employee stock ownership plan
established by the Borrower for the benefit of the employees of the Borrower or
any Subsidiary and their Permitted Transferees.
"Permitted Investments" shall mean (a) Cash and Cash Equivalents, (b)
Investments in Naegele, (c) Investments in all other Subsidiaries up to
$1,000,000 in the aggregate, including Investments in a Person that becomes a
Subsidiary of the Borrower immediately after such Investment, provided (i) an
Event of Default has not occurred and is continuing and will not occur as a
result of, in connection with or after giving effect to such Investment and (ii)
such Person, at the time of such Investment or at the time such Person becomes a
Subsidiary, engages exclusively in the business permitted to be engaged in by
Borrower and its Subsidiaries pursuant to Section 8.01, (c) loans and advances
of money in the ordinary course of business and consistent with past practice to
officers and employees of Borrower or any of its Subsidiaries, (d) investments
in receivables owing to the borrower and/or any Subsidiary, if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms, and (e) investments (including debt
obligations) received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations of, and
other disputes with, customers and suppliers owing in the ordinary course of
business.
"Permitted Liens" shall mean Liens described in clauses (a), (b) and
(d) of Section 8.03.
"Permitted Transferees" means (i) in the case of Kelso, (A) any
Affiliate thereof (other than any corporation or other Person (except for any
corporation or other Person engaged in a business similar, complementary or
related to the nature or type of the business of Holdings and its Subsidiaries)
controlled by, or any investment fund (other than Kelso Investment Associates V,
L.P. or any investment fund that is solely comprised of current and former
professionals of Kelso) managed by, Kelso), (B) any managing director, general
partner, limited partner, director, officer or employee of Kelso or any
Affiliate thereof (collectively, "Kelso Associates"), (C) the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any Kelso
Associate or Kelso Designee and (D) any trust, the beneficiaries of which, or a
corporation or partnership, the stockholders or partners of which, include only
a Kelso Associate or Kelso Designee, his spouse, parents, siblings, or direct
lineal descendants, and (ii) in the case of any Management Investors, (A) his
executor, administrator, testamentary trustee, legatee or beneficiaries, (B)
his spouse, parents, siblings, members of his or her immediate family
(including adopted children) and/or direct lineal
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descendants or (C) a trust, the beneficiaries of which, or a corporation or
partnership, the stockholders or partners of which, include only the Management
Investor, as the case may be, and his spouse, parents, siblings, members of his
or her immediate family (including adopted children) and/or direct lineal
descendants.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multi-employer or single-employer plan as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of) Holdings, the Borrower, a
Subsidiary or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which Holdings, the Borrower, a
Subsidiary, or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"Pledge Agreements" shall mean the Borrower Pledge Agreement and the
UOH Pledge Agreement.
"Pledged Securities" shall mean all the Pledged Securities as defined
in the relevant Pledge Agreement.
"Prime Lending Rate" shall mean the rate which Bankers Trust Company
announces from time to time as its prime lending rate, the Prime Lending Rate to
change when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Bankers Trust Company may make commercial
loans or other loans at rates of interest at, above or below the Prime Lending
Rate.
"Purchase" shall mean repay, redeem, purchase, repurchased or
otherwise acquire for value.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 ET SEQ.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
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"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Relevant Determination Date" shall mean, at any time, (x) the last
day of the then most recently ended fiscal month, quarter or year of Holdings
with respect to which an officer's certificate has been, or is required to be,
delivered to the Banks pursuant to Section 7.01(e)(i) or (y) if the Margin
Reduction Discount is then greater than zero, the last date subsequent to the
date specified in clause (x) on which any Consolidated Debt of Holdings and its
Subsidiaries has been incurred.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Banks" shall mean Non-Defaulting Banks whose Adjusted
Percentages exceed 50% or, if the Total Revolving Commitment has been
terminated, whose outstanding Revolving Loans constitute greater than 50% of the
total outstanding Revolving Loans of Non-Defaulting Banks.
"Revolving Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I hereto directly below the
column entitled "Revolving Commitment," as the same may be reduced from time to
time pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to time
as a result of assignments to or from such Bank pursuant to Section 12.04.
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"Revolving Note" has the meaning provided in Section 1.05(a).
"SEC" shall have the meaning provided in Section 7.01(h).
"SEC Regulation D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"Security Agreement" shall mean a Security Agreement in the form of
Exhibit F to the AF Credit Agreement, as in effect on the Effective Date and as
the same may be modified, amended or supplemented from time to time in
accordance with the terms hereof and thereof.
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
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"Security Documents" shall mean each Pledge Agreement, the Security
Agreement, each Mortgage and each Additional Mortgage, if any.
"Senior Note Documents" shall mean and include each of the documents,
instruments (including the Senior Notes) and other agreements entered into by
the Borrower (including, without limitation, the Senior Note Indenture) relating
to the issuance by the Borrower of the Senior Notes, as in effect on the
Effective Date and as the same may be supplemented, amended or modified from
time to time in accordance with the terms hereof and thereof.
"Senior Note Indenture" shall mean the Indenture entered into by and
between the Borrower and United States Trust Company of New York, as trustee
thereunder, with respect to the Senior Notes as in effect on the Effective Date
and as the same may be modified, amended or supplemented from time to time in
accordance with the terms hereof and thereof.
"Senior Notes" shall mean the 11% Senior Notes due 2003 issued by the
Borrower under the Senior Note Indenture, as in effect on the Effective Date and
as the same may be supplemented, amended or modified from time to time in
accordance with the terms thereof and hereof.
"Shareholders' Agreements" shall have the meaning provided in Section
5.01(E)iii.
"Stated Amount" of each Letter of Credit shall mean the maximum
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Stock Purchase Agreement" shall mean the Stock Purchase Agreement,
dated as of April 5, 1996, between Holdings, Kelso Investment Associates V, L.P.
and Kelso Equity Partners V, L.P., as in effect on the Effective Date as the
same may be amended, modified or supplemented from time to time pursuant to the
terms hereof and thereof.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
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"Super-Majority Banks" shall mean the Non-Defaulting Banks which would
constitute the Required Banks if each reference to "50%" in the definition of
Required Banks were to read "66 2/3%."
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Expiry Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(b).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Date" shall mean the earlier of (x) the date which is 90
days after the Effective Date and (y) the date upon which the Agent determines
in its sole discretion (and notifies the Borrower) that the primary syndication
(and the resulting addition of institutions as Banks pursuant to Section 12.04)
has been completed.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement dated as
of November 18, 1993 between the Borrower and Holdings in the form delivered to
the Banks prior to the Initial Borrowing Date and as the same may be modified
with the consent of the Required Banks.
"Tested Borrowing" shall mean any incurrence of Revolving Loans after
the Initial Borrowing Date in which the aggregate amount of Revolving Loans
incurred, when added to the aggregate amount of AR Loans and Revolving Loans
incurred during the immediately preceding 30 day period (to the extent (x)
incurred after the Effective Date, (y) still outstanding and (z) not included in
establishing an earlier Tested Borrowing), equal or exceed $1,000,000.
"Total Revolving Commitment" shall mean the sum of the Revolving
Commitments of each of the Banks.
"Transaction" shall mean and include (i) the Acquisition, (ii) the
purchase by Kelso of the capital stock of Holdings pursuant to the UOH-Kelso
Agreements, (iii) the entering into and borrowing under the AF Credit Agreement
and (iv) the entering into and borrowing under this Agreement.
"Transaction Documents" shall mean the Acquisition Documents, the UOH-
Kelso Agreements, the Credit Documents and the AF Credit Agreement.
"Transaction Expenses" shall mean all fees and expenses incurred in
connection with, and payable prior to or substantially concurrently with the
closing of, the Transaction and
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including all fees paid to any of the Banks and the Agent hereunder, fees paid
to Kelso or its Affiliates permitted hereunder; attorney's fees, accountants'
fees, placement agents' fees, discounts and commissions and brokerage, and
consultant fees. Transaction Expenses shall include the amortization of any
such fees and expenses that are capitalized and not classified as an expense on
the date incurred.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, I.E., a Base Rate Loan or Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year determined in accordance
with Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets thereof,
determined in accordance with Section 412 of the Code.
"Unpaid Drawings" shall have the meaning provided in Section 2.04(a).
"Unutilized Revolving Commitment" for any Bank at any time shall mean
the excess of (i) the Revolving Commitment of such Bank over (ii) the sum of (x)
the aggregate outstanding principal amount of Revolving Loans made by such Bank
plus (y) an amount equal to such Bank's Adjusted Percentage of the Letter of
Credit Outstandings at such time.
"Unutilized Total Revolving Commitment" shall mean, at any time, (i)
the Total Revolving Commitment at such time less (ii) the sum of the aggregate
principal amount of all Revolving Loans and Swingline Loans at such time plus
the Letter of Credit Outstandings at such time.
"UOH-Kelso Agreements" shall mean the Stock Purchase Agreement and all
other documents entered into or delivered in connection with the Stock Purchase
Agreement.
"UOH Pledge Agreement" shall mean a Pledge Agreement in the form of
Exhibit G to the AF Credit Agreement, as in effect on the Effective Date and as
the same may be modified, amended or supplemented from time to time in
accordance with the terms hereof and thereof.
"Working Capital" shall mean the excess of Consolidated Current Assets
over Consolidated Current Liabilities.
"Written" or "in writing" shall mean any form of written communication
or a communication by means of telex, facsimile transmission, telegraph or
cable.
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SECTION 11. THE AGENT.
1.111 APPOINTMENT. The Banks hereby designate Bankers Trust Company
as Agent (for purposes of this Section 11, the term "Agent" shall include BTCo
in its capacity as Collateral Agent pursuant to the Security Documents) to act
as specified herein and in the other Credit Documents. Each Bank hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the Agent to take such action on
its behalf under the provisions of this Agreement, the other Credit Documents
and any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The Agent
may perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates. The Co-Agent shall have no duties
or liabilities in acting in such capacity.
1.112 NATURE OF DUTIES. The Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and the
Security Documents. Neither the Agent nor any of its respective officers,
directors, agents, employees or affiliates shall be liable for any action taken
or omitted by it or them hereunder or under any other Credit Document or in
connection herewith or therewith, unless caused by its or their gross negligence
or willful misconduct. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Agreement
or any other Credit Document a fiduciary relationship in respect of any Bank or
the holder of any Note; and nothing in this Agreement or any other Credit
Document, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement or any other
Credit Document except as expressly set forth herein or therein.
1.113 LACK OF RELIANCE ON THE AGENT. Independently and without
reliance upon the Agent, each Bank and the holder of each Note, to the extent it
deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of Holdings, the Borrower
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and (ii)
its own appraisal of the creditworthiness of Holdings, the Borrower and its
Subsidiaries and, except as expressly provided in this Agreement, the Agent
shall not have any duty or responsibility, either initially or on a continuing
basis, to provide any Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. The Agent shall not be
responsible to any Bank or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower and its Subsidiaries or be
required to make any inquiry concerning either the performance or observance of
any of the terms,
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provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of Holdings, the Borrower and its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
1.114 CERTAIN RIGHTS OF THE AGENT. If the Agent shall request
instructions from the Required Banks (or, where applicable, the Super-Majority
Banks) with respect to any act or action (including failure to act) in
connection with this Agreement or any other Credit Document, the Agent shall be
entitled to refrain from such act or taking such action unless and until the
Agent shall have received instructions from the Required Banks (or, where
applicable, the Super-Majority Banks); and the Agent shall not incur liability
to any Person by reason of so refraining. Without limiting the foregoing,
neither any Bank nor the holder of any Note shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder or under any other Credit Document in accordance with the
instructions of the Required Banks (or, where appropriate, the Super-Majority
Banks).
1.115 RELIANCE. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Agent believed to be the proper Person, and, with respect to
all legal matters pertaining to this Agreement and any other Credit Document and
its duties hereunder and thereunder, upon advice of counsel selected by the
Agent.
1.116 INDEMNIFICATION. To the extent the Agent is not reimbursed and
indemnified by the Borrower, the Banks will reimburse and indemnify the Agent,
in proportion to their respective Loans and Commitments as used in determining
the Required Banks, for and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Agent in performing its respective duties hereunder
or under any other Credit Document, in any way relating to or arising out of
this Agreement or any other Credit Document; provided that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct.
1.117 THE AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its
obligation to make Loans under this Agreement, the Agent shall have the rights
and powers specified herein for a "Bank" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Banks," "Letter of Credit Issuer," "Required Banks," "Super-Majority
Banks," "holders of Notes" or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual capacity. The
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust or other business with the Borrower or any Affiliate of the
Borrower as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Borrower for ser-
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vices in connection with this Agreement and otherwise without having to account
for the same to the Banks.
1.118 HOLDERS. The Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a written notice of
the assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or indorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.
1.119 RESIGNATION BY THE AGENT. (a) The Agent may resign from the
performance of all its functions and duties hereunder and/or under the other
Credit Documents at any time by giving 15 Business Days' prior written notice to
the Borrower and the Banks. Such resignation shall take effect upon the
appointment of a successor Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall appoint a
successor Agent hereunder or thereunder who shall be the Co-Agent or such other
commercial bank or trust company as is reasonably acceptable to the Borrower.
(c) If a successor Agent shall not have been so appointed within such
15 Business Day period, the Agent, with the consent of the Borrower, shall then
appoint a successor Agent who shall serve as Agent hereunder or thereunder until
such time, if any, as the Banks appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to clause (b)
or (c) above by the 20th Business Day after the date such notice of resignation
was given by the Agent, the Agent's resignation shall become effective and the
Required Banks shall thereafter perform all the duties of the Agent hereunder
and/or under any other Credit Document until such time, if any, as the Banks
appoint a successor Agent as provided above.
SECTION 12. MISCELLANEOUS.
1.121 PAYMENT OF EXPENSES, ETC. The Borrower agrees to: (i) whether
or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agent, the Co-Agent in connection with
the negotiation, preparation, execution and delivery of the Credit Documents and
the documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and
disbursements of their respective counsel) and of the Agent, the Co-Agent and
each of the Banks in connection with the enforcement of the Credit Documents and
the documents and instruments referred to therein (including, without
limitation, the reasonable fees and disbursements of counsel for the Agent, the
Co-Agent and for each of the Banks); (ii)
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pay and hold each of the Banks harmless from and against any and all present and
future stamp and other similar taxes with respect to the foregoing matters and
save each of the Banks harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Bank) to pay such taxes; and (iii) indemnify each Bank
(including in its capacity as the Agent, Co-Agent or a Letter of Credit Issuer),
its officers, directors, employees, representatives and agents from and hold
each of them harmless against any and all losses, liabilities, claims, damages
or expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, (a) any investigation, litigation or other
proceeding (whether or not any Bank is a party thereto) related to the entering
into and/or performance of any Transaction Document or the use of the proceeds
of any Loans hereunder or the Transaction or the consummation of any
transactions contemplated in any Credit Document, or (b) the actual or alleged
presence of Hazardous Materials in the air, surface water or groundwater or on
the surface or subsurface of any Real Property owned or at any time operated by
the Borrower or any of its Subsidiaries, the release, generation, storage,
transportation, handling or disposal of Hazardous Materials at any location,
whether or not owned or operated by the Borrower or any of its Subsidiaries, the
non-compliance of any Real Property with foreign, federal, state and local laws,
regulations, and ordinances (including applicable permits thereunder) applicable
to any Real Property, or any Environmental Claim asserted against the Borrower,
any of its Subsidiaries or any Real Property owned or at any time operated by
the Borrower or any of its Subsidiaries, including, in each case, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified).
1.122 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, if an Event of Default then exists, each Bank is hereby authorized
at any time or from time to time, without presentment, demand, protest or other
notice of any kind to the Borrower or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by such Bank (including without limitation by branches and agencies of
such Bank wherever located) to or for the credit or the account of the Borrower
against and on account of the Obligations and liabilities of the Borrower to
such Bank under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations purchased by such
Bank pursuant to Section 12.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Bank shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
1.123 NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or
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delivered, if to the Borrower, at the address specified opposite its signature
below; if to any Bank, at its address specified for such Bank on Annex II
hereto; or, at such other address as shall be designated by any party in a
written notice to the other parties hereto. All such notices and communications
shall be mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, and shall be effective when received.
1.124 BENEFIT OF AGREEMENT. (a) This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto, provided that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Banks. Each Bank may at any time grant participations in any of
its rights hereunder or under any of the Notes to another financial institution,
provided that in the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation, except that
the participant shall be entitled to the benefits of Sections 1.10 and 4.04 of
this Agreement to the extent that such Bank would be entitled to such benefits
if the participation had not been entered into or sold, and, provided further
that no Bank shall transfer, grant or assign any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating (it being understood that any waiver of
the application of any prepayment or the method of any application of any
prepayment to, the amortization of the Loans shall not constitute an extension
of the final maturity date), or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating interest
in any Revolving Commitment over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Revolving Commitment, or a mandatory prepayment, shall
not constitute a change in the terms of any Revolving Commitment), (ii) release
all or substantially all of the Collateral or (iii) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement or any other Credit Document.
(b) Notwithstanding the foregoing, (x) any Bank may assign all or a
portion of its outstanding Revolving Loans and Revolving Commitment and its
rights and obligations hereunder to another Bank, and (y) with the consent of
the Agent and, to the extent such consent shall not be unreasonably withheld,
the Borrower, any Bank may assign all or a portion of its outstanding Revolving
Loans and Revolving Commitment and its rights and obligations hereunder to one
or more commercial banks or other financial institutions (including one or more
Banks). No assignment pursuant to the immediately preceding sentence shall to
the extent such assignment represents an assignment to an institution other than
one or more Banks
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hereunder, be in an aggregate amount less than $5,000,000 unless the entire
Revolving Loans and Revolving Commitment of the assigning Bank are so assigned.
If any Bank so sells or assigns all or a part of its rights hereunder or under
the Notes, any reference in this Agreement or the Notes to such assigning Bank
shall thereafter refer to such Bank and to the respective assignee to the extent
of their respective interests and the respective assignee shall have, to the
extent of such assignment (unless otherwise provided therein), the same rights
and benefits as it would if it were such assigning Bank. Each assignment
pursuant to this Section 12.04(b) shall be effected by the assigning Bank and
the assignee Bank executing an Assignment Agreement substantially in the form of
Exhibit E (appropriately completed). In the event of any such assignment (x) to
a commercial bank or other financial institution not previously a Bank
hereunder, either the assigning or the assignee Bank shall pay to the Agent a
nonrefundable assignment fee of $3,500 (PROVIDED, that in the event of
simultaneous assignments relating to this Agreement and the AF Credit Agreement,
the fees for such assignments shall total $3,500) and (y) to a Bank, either the
assigning or assignee Bank shall pay to Agent a nonrefundable assignment fee of
$2,000 (PROVIDED, that in the event of simultaneous assignments relating to this
Agreement and the AF Credit Agreement, the fees for such assignments shall total
$2,000), and at the time of any assignment pursuant to this Section 12.04(b),
(i) Annex I shall be deemed to be amended to reflect the Revolving Commitment of
the respective assignee (which shall result in a direct reduction to the
Revolving Commitment of the assigning Bank) and of the other Banks, and (ii) if
any such assignment occurs after the Effective Date, the Borrower will issue new
Notes to the respective assignee and to the assigning Bank in conformity with
the requirements of Section 1.05. Each Bank and the Borrower agree to execute
such documents (including without limitation amendments to this Agreement and
the other Credit Documents) as shall be necessary to effect the foregoing.
Nothing in this clause (b) shall prevent or prohibit any Bank from pledging its
Revolving Note or Revolving Loans to a Federal Reserve Bank in support of
borrowings made by such Bank from such Federal Reserve Bank. Notwithstanding
any of the foregoing provisions of this Section 12.04, no assignment may be made
hereunder unless a concurrent assignment is made by the assigning Bank under the
AF Credit Agreement of a percentage of its Acquisition Loans and Commitments
thereunder equal to the percentage of its Revolving Loans and Revolving
Commitment being assigned by it hereunder.
(c) Notwithstanding any other provisions of this Section 12.04, no
transfer or assignment of the interests or obligations of any Bank hereunder or
any grant of participation therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration statement
with the SEC or to qualify the Loans under the "Blue Sky" laws of any State.
(d) Each Bank initially party to this Agreement hereby represents,
and each Person that becomes a Bank pursuant to an assignment permitted by this
Section 12 will, upon its becoming party to this Agreement, represent that it is
a commercial lender, other financial institution or other "accredited" investor
(as defined in SEC Regulation D) which makes loans in the ordinary course of its
business and that it will make or acquire Loans for its own account
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in the ordinary course of such business, provided that subject to the preceding
clauses (a) and (b), the disposition of any promissory notes or other evidences
of or interests in Indebtedness held by such Bank shall at all times be within
its exclusive control.
1.125 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Borrower and the Agent or any Bank shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which the Agent or any Bank would
otherwise have. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Agent or the
Banks to any other or further action in any circumstances without notice or
demand.
1.126 PAYMENTS PRO RATA. (a) The Agent agrees that promptly after
its receipt of each payment from or on behalf of the Borrower in respect of any
Obligations hereunder, it shall distribute such payment to the Banks (other than
any Bank that has expressly waived its right to receive its pro rata share
thereof) PRO RATA based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such Obligation
then owed and due to all of the Banks immediately prior to such receipt, then
such Bank receiving such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the Obligations to such Banks in
such amount as shall result in a proportional participation by all of the Banks
in such amount, provided that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 12.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
1.127 CALCULATIONS; COMPUTATIONS. (a) The financial statements to
be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP
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consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrower to the
Banks), provided that (x) except as otherwise specifically provided herein, all
computations determining compliance with Section 8, including definitions used
therein, shall utilize accounting principles and policies in effect at the time
of the preparation of, and in conformity with those used to prepare, the
December 31, 1995 historical financial statements of the Borrower delivered to
the Banks pursuant to Section 6.10(b) and (y) that if at any time the
computations determining compliance with Section 8 utilize accounting principles
different from those utilized in the financial statements furnished to the
Banks, such financial statements shall be accompanied by reconciliation work-
sheets.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
1.128 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) This Agreement and the other Credit Documents and the rights
and obligations of the parties hereunder and thereunder shall be construed in
accordance with and be governed by the law of the state of New York. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, the Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Borrower further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower located outside New York City and by hand delivery to the Borrower
located within New York City, at its address for notices pursuant to Section
12.03, such service to become effective 30 days after such mailing. The
Borrower hereby irrevocably designates appoints and empowers CT Corporation
System, with offices on the date hereof located at 1633 Broadway, New York, New
York 10019, as its agent for service of process in respect of any such action or
proceeding. Nothing herein shall affect the right of the Agent or any Bank to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
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(c) Each of the parties to this agreement hereby irrevocably waives
all right to a trial by jury in any action, proceeding or counterclaim arising
out of or relating to this agreement, the other Credit Documents or the
transactions contemplated hereby or thereby.
1.129 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Agent.
12.10 EXECUTION. This Agreement shall be deemed executed by all
parties when the Borrower and each of the Banks shall have signed a copy hereof
(whether the same or different copies) and shall have delivered the same to the
Agent at the Payment Office of the Agent or, in the case of the Banks, shall
have given to the Agent telephonic (confirmed in writing), written telex or
facsimile transmission notice (actually received) at such office that the same
has been signed and mailed to it.
12.11 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 AMENDMENT OR WAIVER. Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Required Banks, provided that no such
change, waiver, discharge or termination shall, without the consent of each Bank
(other than a Defaulting Bank) affected thereby, (i) extend the Expiry Date (it
being understood that any waiver of the application of any prepayment of or the
method of application of any prepayment to the amortization of, the Loans shall
not constitute any such extension), or reduce the rate or extend the time of
payment of interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) or Fees thereon, or reduce the
principal amount thereof, or increase the Revolving Commitment of any Bank over
the amount thereof then in effect (it being understood that a waiver of any
Default or Event of Default or of a mandatory reduction in the Total Revolving
Commitment shall not constitute a change in the terms of any Revolving
Commitment of any Bank), (ii) release or permit the release of all or
substantially all of the Collateral except as expressly provided in the Credit
Documents, (iii) amend, modify or waive any provision of this Section 12.12,
(iv) reduce the percentage specified in, or otherwise modify, the definition of
Required Banks or (v) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement provided further that no
such change, waiver, discharge or termination shall without the consent of the
Super-Majority Banks change directly or indirectly the definition of Permitted
Acquisition or Super-Majority Banks. No provision of Section 11 may be amended
without the consent of the Agent and to the extent any such amendment would
affect the Co-Agent solely in its capacity as such, the Co-Agent, no provision
of Section 2 may
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be amended without the consent of the Letter of Credit Issuer affected thereby
and no provision of Section 1.01(b) or (c) or any other provision applicable to
Swingline Loans may be amended without the consent of BTCo.
12.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 2.06, 4.04, 11.06 or 12.01 shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 DOMICILE OF LOANS. Each Bank may transfer and carry its Loans
at, to or for the account of any branch office, subsidiary or affiliate of such
Bank, provided that the Borrower shall not be responsible for costs arising
under Section 1.10, 2.06 or 4.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.12) to the extent not otherwise applicable to
such Bank prior to such transfer.
12.15 CONFIDENTIALITY. Subject to Section 12.04, the Banks shall
hold all non-public information obtained pursuant to the requirements of this
Agreement which has been identified as such by the Borrower in accordance with
its customary procedure for handling confidential information of this nature and
in accordance with safe and sound banking practices and in any event may make
disclosure reasonably required by any BONA FIDE transferee or participant in
connection with the contemplated transfer of any Loans or participation therein
(so long as such transferee or participant agrees to abide by the provisions of
this Section 12.15) or as required or requested by any governmental agency or
representative thereof or pursuant to legal process, provided that, unless
specifically prohibited by applicable law or court order, each Bank shall notify
the Borrower of any request by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Bank by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information, and provided
further that in no event shall any Bank be obligated or required to return any
materials furnished by the Borrower or any Subsidiary.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
Address
321 N. Clark Street UNIVERSAL OUTDOOR, INC.
Suite 1010 as Borrower
Chicago, Illinois
Attention: Brian T. Clingen
Tel. No.: (312) 644-8673 By: /S/ BRIAN T. CLINGEN
-----------------------
Fax No.: (312) 644-8071 Name: Brian T. Clingen
Title: Vice President
LA SALLE NATIONAL BANK,
Individually and as Co-Agent
By: /S/ JEFFREY D. STEELE
-----------------------
Name: Jeffrey D. Steele
Title: Senior Vice President
BANKERS TRUST COMPANY,
Individually and as Agent
By: /S/ DANA KLEIN
----------------------
Name: Dana Klein
Title: Vice President
<PAGE>
ANNEX I
COMMITMENTS
Revolving
Bank Commitment
----- ----------
Bankers Trust Company $6,562,500
La Salle National Bank $5,937,500
-----------
Total: $12,500,000
-----------
-----------
<PAGE>
ANNEX II
BANK ADDRESSES
Bankers Trust Company 130 Liberty Street
New York, New York 10006
Attention: Dana Klein
Tel. No.: 212-250-1724
Fax No.: 212-250-7218
La Salle National Bank 120 South LaSalle Street
Chicago, Illinois 60603
Attention: Jeffrey D. Steele
Tel. No.: (312) 904-2721
Fax No.: (312) 904-4364
<PAGE>
ANNEX III
GOVERNMENT APPROVALS
<PAGE>
ANNEX IV
SUBSIDIARIES
<PAGE>
ANNEX V
PROPERTIES
<PAGE>
ANNEX VI
EXISTING INDEBTEDNESS
<PAGE>
ANNEX VII
INSURANCE POLICIES
<PAGE>
ANNEX VIII
EXISTING LIENS
<PAGE>
ANNEX IX
MANAGEMENT FEES
<PAGE>
<PAGE>
[CONFORMED COPY WITH EXHIBITS E,F and G
CONFORMED AS EXECUTED]
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
ACQUISITION CREDIT AGREEMENT
among
UNIVERSAL OUTDOOR, INC.
VARIOUS LENDING INSTITUTIONS,
LA SALLE NATIONAL BANK,
AS CO-AGENT
and
BANKERS TRUST COMPANY,
AS AGENT
---------------------------
Dated as of March 29, 1996
---------------------------
$87,500,000
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
PAGE
SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . 1
1.01 Commitment . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Borrowing Amounts, etc.. . . . . . . . . . . . . 2
1.03 Notice of Borrowing. . . . . . . . . . . . . . . . . . . 2
1.04 Disbursement of Funds. . . . . . . . . . . . . . . . . . 2
1.05 Note . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.06 Conversions. . . . . . . . . . . . . . . . . . . . . . . 4
1.07 Pro Rata Borrowings. . . . . . . . . . . . . . . . . . . 4
1.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . 5
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . 5
1.10 Increased Costs, Illegality, etc.. . . . . . . . . . . . 7
1.11 Compensation . . . . . . . . . . . . . . . . . . . . . . 9
1.12 Change of Lending Office . . . . . . . . . . . . . . . . 9
SECTION 2. Replacement Banks. . . . . . . . . . . . . . . . . . . 9
2.01 Replacement of Banks . . . . . . . . . . . . . . . . . . 9
SECTION 3. Fees; Commitments. . . . . . . . . . . . . . . . . . . 10
3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.02 Voluntary Reduction of Commitments . . . . . . . . . . . 11
3.03 Mandatory Adjustments of Commitments, etc. . . . . . . . 11
SECTION 4. Payments . . . . . . . . . . . . . . . . . . . . . . . 12
4.01 Voluntary Prepayments. . . . . . . . . . . . . . . . . . 12
4.02 Mandatory Prepayments. . . . . . . . . . . . . . . . . . 12
4.03 Method and Place of Payment. . . . . . . . . . . . . . . 16
4.04 Net Payments . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5. Conditions Precedent . . . . . . . . . . . . . . . . . 18
5.01 Execution of Agreement . . . . . . . . . . . . . . . . . 18
5.02 No Default; Representations and Warranties . . . . . . . 18
5.03 Officer's Certificate. . . . . . . . . . . . . . . . . . 18
(i)
<PAGE>
5.04 Opinions of Counsel. . . . . . . . . . . . . . . . . . . . . 18
5.05 Corporate Proceedings. . . . . . . . . . . . . . . . . . . . 19
5.06 Plans; etc . . . . . . . . . . . . . . . . . . . . . . . . 19
5.07 Adverse Change, etc. . . . . . . . . . . . . . . . . . . . . 20
5.08 Litigation . . . . . . . . . . . . . . . . . . . . . . . . 20
5.09 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.10 Holdings Restructuring . . . . . . . . . . . . . . . . . . 21
5.11 Acquisition. . . . . . . . . . . . . . . . . . . . . . . . . 21
5.12 Security Documents . . . . . . . . . . . . . . . . . . . . 21
5.13 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.14 Insurance Policies . . . . . . . . . . . . . . . . . . . . 23
5.15 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.16 Environmental Reports. . . . . . . . . . . . . . . . . . . . 23
5.17 Consent Letter . . . . . . . . . . . . . . . . . . . . . . 23
5.18 RF Credit Agreement. . . . . . . . . . . . . . . . . . . . . 23
5.19 Adjusted EBITDA. . . . . . . . . . . . . . . . . . . . . . . 23
5.20 Tested Borrowings. . . . . . . . . . . . . . . . . . . . . . 23
SECTION 6. Representations, Warranties and Agreements . . . . . . . 24
6.01 Corporate Status . . . . . . . . . . . . . . . . . . . . . 24
6.02 Corporate Power and Authority. . . . . . . . . . . . . . . . 24
6.03 No Violation . . . . . . . . . . . . . . . . . . . . . . . 24
6.04 Litigation . . . . . . . . . . . . . . . . . . . . . . . . 25
6.05 Use of Proceeds; Margin Regulations. . . . . . . . . . . . . 25
6.06 Governmental Approvals . . . . . . . . . . . . . . . . . . 25
6.07 Investment Company Act . . . . . . . . . . . . . . . . . . 25
6.08 Public Utility Holding Company Act . . . . . . . . . . . . 25
6.09 True and Complete Disclosure . . . . . . . . . . . . . . . 26
6.10 Financial Condition; Financial Statements. . . . . . . . . . 26
6.11 Security Interests . . . . . . . . . . . . . . . . . . . . 27
6.12 Representations and Warranties in Transaction Documents. . . 27
6.13 Consummation of Transaction. . . . . . . . . . . . . . . . . 28
6.14 Tax Returns and Payments . . . . . . . . . . . . . . . . . 28
6.15 Compliance with ERISA. . . . . . . . . . . . . . . . . . . . 28
6.16 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 29
6.17 Patents, etc.. . . . . . . . . . . . . . . . . . . . . . . . 29
6.18 Pollution and Other Regulations. . . . . . . . . . . . . . . 29
6.19 Properties . . . . . . . . . . . . . . . . . . . . . . . . 30
6.20 Labor Relations. . . . . . . . . . . . . . . . . . . . . . . 31
6.21 Existing Indebtedness. . . . . . . . . . . . . . . . . . . . 31
(ii)
<PAGE>
SECTION 7. Affirmative Covenants. . . . . . . . . . . . . . . . . . . 31
7.01 Information Covenants. . . . . . . . . . . . . . . . . . . . 31
7.02 Books, Records and Inspections . . . . . . . . . . . . . . 34
7.03 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.04 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 35
7.05 Consolidated Corporate Franchises. . . . . . . . . . . . . . 35
7.06 Compliance with Statutes, etc. . . . . . . . . . . . . . . 35
7.07 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.08 Good Repair. . . . . . . . . . . . . . . . . . . . . . . . . 36
7.09 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . 36
7.10 Additional Security; Further Assurances. . . . . . . . . . . 36
7.11 Corporate Separateness . . . . . . . . . . . . . . . . . . 38
7.12 Interest Rate Agreement. . . . . . . . . . . . . . . . . . . 38
7.13 Compliance with Environmental Laws . . . . . . . . . . . . 38
SECTION 8. Negative Covenants . . . . . . . . . . . . . . . . . . . 39
8.01 Changes in Business. . . . . . . . . . . . . . . . . . . . . 39
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc.. . . 39
8.03 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.04 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 43
8.05 Capital Expenditures . . . . . . . . . . . . . . . . . . . 43
8.06 Investments and Loans. . . . . . . . . . . . . . . . . . . . 44
8.07 Subsidiaries; etc. . . . . . . . . . . . . . . . . . . . . 44
8.08 Prepayments of Indebtedness, etc.. . . . . . . . . . . . . . 44
8.09 Dividends, etc.. . . . . . . . . . . . . . . . . . . . . . . 45
8.10 Transactions with Affiliates . . . . . . . . . . . . . . . 46
8.11 Fixed Charge Coverage Ratio. . . . . . . . . . . . . . . . . 47
8.12 Minimum Adjusted EBITDA. . . . . . . . . . . . . . . . . . . 47
8.13 Borrower Leverage Ratio. . . . . . . . . . . . . . . . . . . 47
SECTION 9. Events of Default. . . . . . . . . . . . . . . . . . . . . 47
9.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.02 Representations, etc.. . . . . . . . . . . . . . . . . . . . 47
9.03 Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.04 Default Under Other Agreements . . . . . . . . . . . . . . 48
9.05 Bankruptcy, etc. . . . . . . . . . . . . . . . . . . . . . 48
9.06 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.07 Security Documents . . . . . . . . . . . . . . . . . . . . 49
9.08 Holdings . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.09 Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.10 RF Credit Agreement. . . . . . . . . . . . . . . . . . . . . 51
(iii)
<PAGE>
SECTION 10. Definitions . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 11. The Agent . . . . . . . . . . . . . . . . . . . . . . . 75
11.01 Appointment . . . . . . . . . . . . . . . . . . . . . . . 75
11.02 Nature of Duties. . . . . . . . . . . . . . . . . . . . . . 75
11.03 Lack of Reliance on the Agent . . . . . . . . . . . . . . 75
11.04 Certain Rights of the Agent . . . . . . . . . . . . . . . 76
11.05 Reliance. . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.06 Indemnification . . . . . . . . . . . . . . . . . . . . . 76
11.07 The Agent in Its Individual Capacity. . . . . . . . . . . . 77
11.08 Holders . . . . . . . . . . . . . . . . . . . . . . . . . 77
11.09 Resignation by the Agent. . . . . . . . . . . . . . . . . . 77
SECTION 12. Miscellaneous 78
12.01 Payment of Expenses, etc. . . . . . . . . . . . . . . . . 78
12.02 Right of Setoff . . . . . . . . . . . . . . . . . . . . . 78
12.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 79
12.04 Benefit of Agreement. . . . . . . . . . . . . . . . . . . . 79
12.05 No Waiver; Remedies Cumulative. . . . . . . . . . . . . . . 81
12.06 Payments Pro Rata . . . . . . . . . . . . . . . . . . . . 81
12.07 Calculations; Computations. . . . . . . . . . . . . . . . . 82
12.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of
Jury Trial. . . . . . . . . . . . . . . . . . . . . . . . 82
12.09 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 83
12.10 Effectiveness . . . . . . . . . . . . . . . . . . . . . . 83
12.11 Headings Descriptive. . . . . . . . . . . . . . . . . . . . 84
12.12 Amendment or Waiver . . . . . . . . . . . . . . . . . . . 84
12.13 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . 84
12.14 Domicile of Loans . . . . . . . . . . . . . . . . . . . . 84
12.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . 84
ANNEX I -- Commitments
ANNEX II -- Bank Addresses
ANNEX III -- Government Approvals
ANNEX IV -- Subsidiaries
ANNEX V -- Properties
ANNEX VI -- Existing Indebtedness
ANNEX VII -- Insurance Policies
ANNEX VIII -- Existing Liens
ANNEX IX -- Management Fees
(iv)
<PAGE>
EXHIBIT A -- Form of Notice of Borrowing
EXHIBIT B-1 -- Form of Term Note
EXHIBIT B-2 -- Form of AR Note
EXHIBIT C-1 -- Form of Opinion of Counsel for the Borrower
EXHIBIT C-2 -- Form of Opinion of White & Case
EXHIBIT D -- Form of Officers' Certificate
EXHIBIT E -- Form of Borrower Pledge Agreement
EXHIBIT F -- Form of Security Agreement
EXHIBIT G -- Form of UOH Pledge Agreement
EXHIBIT H -- Form of Solvency Opinion
EXHIBIT I -- Form of Consent Letter
EXHIBIT J -- Pro Forma Calculation for Tested Borrowings
EXHIBIT K -- Adjusted EBITDA
EXHIBIT L -- Form of Assignment Agreement
(v)
<PAGE>
ACQUISITION CREDIT AGREEMENT, dated as March 29, 1996, among
UNIVERSAL OUTDOOR, INC. (the "Borrower"), an Illinois corporation, the lending
institutions listed from time to time on Annex I hereto (each a "Bank" and,
collectively, the "Banks"), LA SALLE NATIONAL BANK, as Co-Agent and BANKERS
TRUST COMPANY, as agent (the "Agent"). Unless otherwise defined herein, all
capitalized terms used herein and defined in Section 10 are used herein as so
defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Banks are willing to make available to the Borrower the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.011 COMMITMENT. Subject to and upon the terms and conditions
herein set forth, each Bank severally agrees to make a loan or loans (each a
"Loan" and, collectively, the "Loans") to the Borrower, which Loans shall be
drawn, to the extent such Bank has a commitment under such Facility, under the
Term Facility and the AR Facility, as set forth below:
(a) Loans under the Term Facility (each a "Term Loan" and,
collectively, the "Term Loans") (i) shall be made pursuant to a single
drawing which shall be on the Initial Borrowing Date, (ii) shall be made
and initially maintained as a single Borrowing of Base Rate Loans
(subject to the option to convert such Term Loans pursuant to Section
1.06) and (iii) shall not exceed in aggregate principal amount for any
Bank at the time of occurrence thereof the Term Commitment, if any, of
such Bank. Once repaid, Term Loans may not be reborrowed.
(b) Loans under the AR Facility (each an "AR Loan" and,
collectively, the "AR Loans") (i) shall be made at any time and from
time to time on and after the Initial Borrowing Date and prior to the AR
Termination Date, (ii) except as hereinafter provided, may, at the
option of the Borrower, be incurred and maintained as, and/or converted
into, Base Rate Loans or Eurodollar Loans, provided that (x) all AR
Loans made as part of the same Borrowing shall, unless otherwise
specifically provided herein, consist of Loans of the same Type and (y)
AR Loans maintained as Eurodollar Loans may not be incurred prior to the
Syndication Date, (iii) may be repaid and, prior to the AR Termination
Date, be reborrowed in accordance with the provisions hereof
<PAGE>
and (iv) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which, when combined with the aggregate
outstanding principal amount of all other AR Loans of such Bank, equals the
AR Commitment, if any, of such Bank at such time.
1.012 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal
amount of each Borrowing shall not be less than the Minimum Borrowing Amount.
More than one Borrowing may be incurred on any day, provided that at no time
shall there be outstanding more than seven Borrowings of Eurodollar Loans
hereunder and under the RF Credit Agreement.
1.013 NOTICE OF BORROWING. (a) Whenever the Borrower desires
to incur Loans under any Facility, it shall give the Agent at its Notice Office,
prior to 11:00 A.M. (New York time), at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of
Eurodollar Loans and at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of Base Rate
Loans to be made hereunder. Each such notice (each a "Notice of Borrowing")
shall be in the form of Exhibit A and shall be irrevocable and shall specify (i)
the Facility pursuant to which such Borrowing is being made, (ii) the aggregate
principal amount of the Loans to be made pursuant to such Borrowing, (iii) the
date of Borrowing (which shall be a Business Day) and (iv) whether the
respective Borrowing shall consist of Base Rate Loans or (to the extent
permitted) Eurodollar Loans and, if Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Agent shall promptly give each Bank written
notice (or telephonic notice promptly confirmed in writing) of each proposed
Borrowing, of such Bank's proportionate share thereof and of the other matters
covered by the Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice permitted to be given hereunder, the
Agent may prior to receipt of written confirmation act without liability upon
the basis of such telephonic notice, believed by the Agent in good faith to be
from an Authorized Officer of the Borrower. In each such case, the Borrower
hereby waives the right to dispute the Agent's record of the terms of such
telephonic notice.
1.014 DISBURSEMENT OF FUNDS. (a) No later than 1:00 P.M. (New
York time) on the date specified in each Notice of Borrowing, each Bank with a
Commitment under the respective Facility will make available its PRO RATA share
(as provided in Section 1.07) of each Borrowing requested to be made on such
date in the manner provided below. All such amounts shall be made available to
the Agent in U.S. dollars and immediately available funds at the Payment Office
and the Agent promptly will make available to the Borrower by depositing to its
account at the Payment Office the aggregate of the amounts so made available in
the type of funds received. Unless the Agent shall have been notified by any
Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Agent its portion of the
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<PAGE>
Borrowing or Borrowings to be made on such date, the Agent may assume that such
Bank has made such amount available to the Agent on such date of Borrowing, and
the Agent, in reliance upon such assumption, may (in its sole discretion and
without any obligation to do so) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the Agent
by such Bank and the Agent has made available same to the Borrower, the Agent
shall be entitled to recover such corresponding amount from such Bank. If such
Bank does not pay such corresponding amount forthwith upon the Agent's demand
therefor, the Agent shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Agent. The Agent shall also be
entitled to recover on demand from such Bank or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Agent to the Borrower to the
date such corresponding amount is recovered by the Agent, at a rate per annum
equal to (x) if paid by such Bank, the overnight Federal Funds Effective Rate or
(y) if paid by the Borrower, the then applicable rate of interest, calculated in
accordance with Section 1.08, for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
the Borrower may have against any Bank as a result of any default by such Bank
hereunder.
1.015 NOTES. (a) The Borrower's obligation to pay the
principal of, and interest on, the Loans made to it by each Bank shall be
evidenced (i) if Term Loans, by a promissory note substantially in the form of
Exhibit B-1 with blanks appropriately completed in conformity herewith (each a
"Term Note" and, collectively, the "Term Notes") and (ii) if AR Loans, by a
promissory note substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (each an "AR Note" and,
collectively, the "AR Notes").
(b) The Term Note issued to each Bank that makes a Term Loan
shall (i) be executed by the Borrower, (ii) be payable to the order of such Bank
and be dated the Initial Borrowing Date, (iii) be in a stated principal amount
equal to the Term Loans made by such Bank on the Initial Borrowing Date (or
subsequently purchased by such Bank) and be payable in the principal amount of
Term Loans evidenced thereby, (iv) mature on the Final Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) The AR Note issued to each Bank with an AR Commitment shall
(i) be executed by the Borrower, (ii) be payable to the order of such Bank and
be dated the Initial Borrowing Date, (iii) be in a stated principal amount equal
to the AR Commitment of such Bank and be payable in the principal amount of the
AR Loans evidenced thereby, (iv) mature on the Final Maturity Date, (v) bear
interest as provided in the appropriate clause of Section
-3-
<PAGE>
1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to mandatory repayment as provided in Section
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(d) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect the Borrower's obligations in respect of such
Loans.
1.016 CONVERSIONS. The Borrower shall have the option to
convert on any Business Day occurring on and after the Syndication Date all or a
portion at least equal to the applicable Minimum Borrowing Amount of the
outstanding principal amount of the Loans owing pursuant to a single Facility
into a Borrowing or Borrowings pursuant to such Facility of another Type of
Loan, provided that (i) except as otherwise provided in Section 1.10(b),
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
an Interest Period applicable thereto and no partial conversion of a Borrowing
of Eurodollar Loans shall reduce the outstanding principal amount of the
Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may not be converted
into Eurodollar Loans if any violation of Section 9.01 or any Event of Default
is then in existence to the extent that the Agent or the Required Banks have
determined that any such conversion at such time would be disadvantageous to the
Banks and (iii) Borrowings of Eurodollar Loans resulting from this Section 1.06
shall be limited in number as provided in Section 1.02. Each such conversion
shall be effected by the Borrower giving the Agent at its Notice Office, prior
to 11:00 A.M. (New York time), at least three Business Days' (or two Business
Days', in the case of a conversion into Base Rate Loans) prior written notice
(or telephonic notice promptly confirmed in writing) (each a "Notice of
Conversion") specifying the Loans to be so converted, the Type of Loans to be
converted into and, if to be converted into a Borrowing of Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Agent shall give each
Bank prompt notice of any such proposed conversion affecting any of its Loans.
1.017 PRO RATA BORROWINGS. All Loans under this Agreement shall
be made by the Banks PRO RATA on the basis of their Term Commitments or AR
Commitments, as the case may be, provided at any time that a Bank with an AR
Commitment is a Defaulting Bank, AR Loans will be incurred from the Banks with
AR Commitments that are Non-Defaulting Banks PRO RATA on the basis of their AR
Commitments. It is understood that no Bank shall be responsible for any default
by any other Bank in its obligation to make Loans hereunder and that each Bank
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Bank to fulfill its commitments
hereunder.
1.018 INTEREST. (a) The unpaid principal amount of each Base
Rate Loan shall bear interest from the date of the Borrowing thereof until
maturity (whether by acceleration or
-4-
<PAGE>
otherwise) at a rate per annum which shall at all times be the Applicable Base
Rate Margin plus the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the
Applicable Eurodollar Margin plus the relevant Eurodollar Rate.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall bear interest at a rate per annum equal to the Base Rate in
effect from time to time plus the sum of (i) 2% and (ii) the Applicable Base
Rate Margin, provided that no Loan shall bear interest after maturity (whether
by acceleration or otherwise) at a rate per annum less than 2% plus the rate of
interest applicable thereto at maturity.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on the last
Business Day of each February, May, August and November, (ii) in respect of each
Eurodollar Loan, on the last day of each Interest Period applicable thereto and,
in the case of an Interest Period of six months, on the date occurring three
months after the first day of such Interest Period and (iii) in respect of each
Loan, on any prepayment or conversion (other than the prepayment and conversion
of Base Rate AR Loans) (on the amount prepaid or converted), at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Agent, upon determining the interest rate for any
Borrowing of Eurodollar Loans for any Interest Period, shall promptly notify the
Borrower and the Banks thereof.
1.019 INTEREST PERIODS. (a) At the time the Borrower gives a
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, a Borrowing of Eurodollar Loans (in the case of the initial
Interest Period applicable thereto) or prior to 10:00 A.M. (New York time) on
the third Business Day prior to the expiration of an Interest Period applicable
to a Borrowing of Eurodollar Loans, it shall have the right to elect by giving
the Agent written notice (or telephonic notice promptly confirmed in writing) of
the Interest Period applicable to such Borrowing, which Interest Period shall,
at the option of the Borrower, be a one, two, three or six month period.
Notwithstanding anything to the contrary contained above:
-5-
<PAGE>
(i) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) no Interest Period shall extend beyond the Final Maturity
Date;
(v) no Interest Period with respect to any Borrowing of Term
Loans or AR Loans, respectively, may be elected that would extend beyond
any date upon which a Scheduled Repayment is required to be made in respect
of such Loans if, after giving effect to the selection of such Interest
Period, the aggregate principal amount of Term Loans or AR Loans, as the
case may be, maintained as Eurodollar Loans with Interest Periods ending
after such date would exceed the aggregate principal amount of Term Loans
or AR Loans, as the case may be, permitted to be outstanding after such
Scheduled Repayment; and
(vi) no Interest Period may be elected at any time when a
violation of Section 9.01 or an Event of Default is then in existence if
the Agent or the Required Banks have determined that such an election at
such time would be disadvantageous to the Banks.
(b) If upon the expiration of any Interest Period, the Borrower
has failed to (or may not) elect a new Interest Period to be applicable to
the respective Borrowing of Eurodollar Loans as provided above, the
Borrower shall be deemed to have elected to convert such Borrowing into a
Borrowing of Base Rate Loans effective as of the expiration date of such
current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x)
in the case of clause (i) below, the Agent or (y) in the case of clauses
(ii) and (iii) below, any Bank shall have determined (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto):
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<PAGE>
(i) on any date for determining the Eurodollar Rate for any
Interest Period that, by reason of any changes arising after the date of
this Agreement affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a change
in the rate of taxes or similar charges) because of (x) any change since
the Effective Date in any applicable law, governmental rule, regulation,
guideline or order (or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
guideline or order) (such as, for example, but not limited to, a change in
official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurodollar Rate) and/or (y) other circumstances affecting such Bank,
the interbank Eurodollar market or the position of such Bank in such
market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has become unlawful by compliance by such Bank in good
faith with any law, governmental rule, regulation, guideline (or would
conflict with any such governmental rule, regulation, guideline or order
not having the force of law but with which such Bank customarily
complies even though the failure to comply therewith would not be
unlawful), or has become impracticable as a result of a contingency
occurring after the Effective Date which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Agent in the case of clause (i)
above) shall (x) on such date and (y) within ten Business Days of the date on
which such event no longer exists give notice (by telephone confirmed in
writing) to the Borrower and to the Agent of such determination (which notice
the Agent shall promptly transmit to each of the other Banks). Thereafter (x)
in the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion given by the Borrower with respect
to Eurodollar Loans which have not yet been incurred shall be deemed rescinded
by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to
such Bank, upon written demand therefor, such additional amounts (in the form of
an increased rate of, or a different method of calculating, interest or
otherwise as such Bank in its sole discretion shall determine) as shall be
required to compensate such Bank for such increased costs or reductions in
amounts receivable hereunder (a written notice as to the additional amounts owed
to such Bank, showing the basis for the calculation thereof, submitted to the
Borrower by such Bank shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) and (z) in the case of clause (iii) above, the
Borrower shall
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take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii) the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or (iii), or
(ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' notice to the Agent, require the affected Bank to convert each
such Eurodollar Loan into a Base Rate Loan, provided that if more than one Bank
is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the Effective
Date, the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Bank could
have achieved but for such adoption, effectiveness, change or compliance (taking
into consideration such Bank's policies with respect to capital adequacy), then
from time to time, within 15 days after demand by such Bank (with a copy to the
Agent), the Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such reduction. Each Bank, upon determining in
good faith that any additional amounts will be payable pursuant to this Section
1.10(c), will give prompt written notice thereof to the Borrower, which notice
shall set forth the basis of the calculation of such additional amounts,
although the failure to give any such notice shall not release or diminish any
of the Borrower's obligations to pay additional amounts pursuant to this Section
1.10(c) upon the subsequent receipt of such notice.
1.11 COMPENSATION. (a) The Borrower shall compensate each
Bank, upon its written request (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Bank to fund its Eurodollar Loans but excluding in any event
the loss of anticipated profits) which such Bank may sustain: (i) if for any
reason (other than a default by such Bank or the Agent) a Borrowing of
Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not withdrawn by the Borrower or
deemed withdrawn pursuant to Section 1.10(a)); (ii) if any prepayment, repayment
or conversion of any of its Eurodollar Loans occurs on a date which is not the
last day of an
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Interest Period applicable thereto; (iii) if any prepayment of any of its
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the
Borrower to repay its Eurodollar Loans when required by the terms of this
Agreement or (y) an election made pursuant to Section 1.10(b).
(b) Notwithstanding anything in this Agreement to the contrary,
to the extent any notice required by Section 1.10 or 4.04 is given by any Bank
more than 180 days after such Bank obtained, or reasonably should have obtained,
knowledge of the occurrence of the event giving rise to the additional costs of
the type described in such Section, such Bank shall not be entitled to
compensation under Section 1.10 or 4.04 for any amounts incurred or accruing
prior to the giving of such notice to the Borrower.
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c) or 4.04 with respect to such Bank, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Bank) to designate another lending office for any Loans affected by such
event, provided that such designation is made on such terms that such Bank and
its lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving rise to the operation
of any such Section. Nothing in this Section 1.12 shall affect or postpone any
of the obligations of the Borrower or the right of any Bank provided in Section
1.10 or 4.04.
SECTION 2. REPLACEMENT BANKS.
1.021 REPLACEMENT OF BANKS. (w) Upon any RF Bank being replaced
under Section 1.13 of the RF Credit Agreement, (x) upon the occurrence of any
event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c) or Section 4.04 with respect to any Bank which results in such Bank
charging to the Borrower increased costs in excess of those being generally
charged by the other Banks, (y) if a Bank becomes a Defaulting Bank and/or (z)
in the case of a refusal by a Bank to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been approved
by the Required Banks or Super Majority Banks, as the case may be, as provided
in Section 12.12, the Borrower shall have the right, if no Default or Event of
Default then exists, to replace (and, in the case of clause (w) above, shall
replace) such Bank (the "Replaced Bank") with one or more other transferee or
transferees who shall be acceptable to the Agent and none of whom shall
constitute a Defaulting Bank at the time of such replacement (collectively, the
"Replacement Bank") reasonably acceptable to the Agent, provided that (i) any
Bank replaced pursuant to this Section 2.01 must also be replaced as an RF Bank
at the same time under Section 1.13 of the RF Credit Agreement by the same
Replacement Bank (and in the same pro rata amounts if more than one Replacement
Bank), (ii) any Bank that is replaced as an RF Bank pursuant to Section 1.13 of
the RF Credit Agreement must also be replaced at the same time as a Bank
hereunder by the same Replacement Bank (and in the same pro rata amounts if more
than one Replacement Bank), (iii) at the time of any replacement pursuant to
this Section 2.01, the
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Replacement Bank shall enter into one or more Assignment Agreements pursuant to
Section 12.04(b) (and with all fees payable pursuant to said Section 12.04(b) to
be paid by the Replacement Bank) pursuant to which the Replacement Bank shall
acquire all of the Commitments and outstanding Loans of the Replaced Bank and,
in connection therewith, shall pay to the Replaced Bank in respect thereof an
amount equal to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Bank and (B) an
amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced
Bank pursuant to Section 3.01 and (iv) all obligations of the Borrower owing to
the Replaced Bank (other than those specifically described in clause (iii) above
in respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Bank concurrently with such
replacement. Upon the execution of the respective Assignment and Assumption
Agreements, the payment of amounts referred to in clauses (iii) and (iv) above
and, if so requested by the Replacement Bank, delivery to the Replacement Bank
of the appropriate Note or Notes executed by the Borrower, the Replacement Bank
shall become a Bank hereunder and the Replaced Bank shall cease to constitute a
Bank hereunder, except with respect to indemnification provisions applicable to
the Replaced Bank under this Agreement, which shall survive as to such Replaced
Bank.
SECTION 3. FEES; COMMITMENTS.
1.031 FEES. (a) The Borrower agrees to pay to the Agent a
commitment commission ("Commitment Commission") for the account of each Non-
Defaulting Bank with an AR Commitment for the period from and including the
Initial Borrowing Date to, but not including, the AR Termination Date, or, if
earlier, the date upon which the Total AR Commitment has been terminated,
computed at a rate for each day equal to 1/2 of 1% per annum on such Bank's
unutilized AR Commitment on such day. Such Commitment Commission shall be due
and payable in arrears on the last Business Day of each February, May, August
and November and on the AR Termination Date.
(b) The Borrower shall pay to the Agent (x) on the Initial
Borrowing Date for its own account and/or for distribution to the Banks such
fees as heretofore agreed by the Borrower and the Agent and (y) for its own
account such other fees as agreed to between the Borrower and the Agent, when
and as due.
(c) All computations of Fees shall be made in accordance with
Section 12.07(b).
1.032 VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three
Business Days' prior written notice (or telephonic notice confirmed in writing)
to the Agent at its Notice Office (which notice the Agent shall promptly
transmit to each of the Banks), the Borrower shall have the right, without
premium or penalty, to terminate or partially reduce the unutilized Total AR
Commitment, provided that (x) any such termination shall apply to
proportionately and permanently reduce the AR Commitment of each Bank, (y) no
such reduction shall reduce
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any Non-Defaulting Bank's AR Commitment to an amount that is less than the
outstanding AR Loans of such Bank and (z) any partial reduction pursuant to this
Section 3.02 shall be in the amount of at least $1,000,000.
1.033 MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total
Commitment (and the Term Commitment and AR Commitment of each Bank) shall
terminate on the Expiration Date unless the Initial Borrowing Date has occurred
on or before such date.
(b) The Total Term Commitment shall terminate in its entirety on
the Initial Borrowing Date (after giving effect to the making of the Term Loans
on such date).
(c) The Total AR Commitment (and the AR Commitment of each Bank)
shall terminate on the earliest of (x) the AR Termination Date, (y) the
Revolving Facility Termination Date and (z) the date on which any Change of
Control occurs.
(d) The Total AR Commitment shall be reduced at the time that
any required mandatory repayment of Term Loans would be made prior to the AR
Termination Date pursuant to Section 4.02(A)(c), (d), (e) or (f) if Term Loans
were then outstanding in an amount, if any, by which the amount of such required
repayment (determined as if an unlimited amount of Term Loans were then
outstanding) exceeds the aggregate amount of Term Loans then outstanding.
(e) Each partial reduction of the Total AR Commitment pursuant
to this Section 3.03 shall apply proportionately to the AR Commitment, if any,
of each Bank.
SECTION 4. PAYMENTS.
1.041 VOLUNTARY PREPAYMENTS. The Borrower shall have the right
to prepay Loans in whole or in part, without premium or penalty, from time to
time on the following terms and conditions: (i) the Borrower shall give the
Agent at the Payment Office written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay the Loans, whether such Loans are
Term Loans or AR Loans, the amount of such prepayment and (in the case of
Eurodollar Loans) the specific Borrowing(s) pursuant to which made, which notice
shall be given by the Borrower at least one Business Day prior to the date of
such prepayment with respect to Base Rate Loans and two Business Days prior to
the date of such prepayment with respect to Eurodollar Loans, which notice shall
promptly be transmitted by the Agent to each of the Banks; (ii) each partial
prepayment of any Borrowing shall be in an aggregate principal amount of at
least $500,000 and, if greater in an integral multiple of $100,000, provided
that no partial prepayment of Eurodollar Loans made pursuant to a Borrowing
shall reduce the aggregate principal amount of the Eurodollar Loans outstanding
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto; (iii) at the time of any prepayment of Eurodollar Loans
pursuant to this Section 4.01 on any date other than the last day of the
Interest Period applicable thereto, the Borrower shall pay the amounts required
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pursuant to Section 1.11; (iv) each prepayment in respect of any Loans made
pursuant to a Borrowing shall be applied PRO RATA among such Loans, provided,
that at the Borrower's election in connection with any prepayment of AR Loans
pursuant to this Section 4.01 prior to the AR Termination Date, such prepayment
shall not be applied to any AR Loans of a Defaulting Bank; and (v) each
prepayment of Term Loans or, to the extent made after the AR Termination Date,
AR Loans pursuant to this Section 4.01 shall reduce the remaining Scheduled
Repayments of the Term Loans or AR Loans, as the case may be, on a PRO RATA
basis (based upon the then remaining principal amount of each such Scheduled
Repayment).
1.042 MANDATORY PREPAYMENTS.
(A) REQUIREMENTS:
(a) (i) If on any date prior to the AR Termination Date the
aggregate outstanding principal amount of AR Loans made by Non-Defaulting Banks
exceeds the Adjusted Total AR Commitment as then in effect, the Borrower shall
repay on such date the principal of AR Loans of Non-Defaulting Banks in an
aggregate amount equal to such excess.
(ii) If on any date prior to the AR Termination Date the
aggregate outstanding principal amount of the AR Loans made by a Defaulting Bank
exceeds the AR Commitment of such Defaulting Bank, the Borrower shall repay
principal of the AR Loans of such Defaulting Bank in an amount equal to such
excess.
(b) (I) On each date set forth below, the Borrower shall be
required to repay the principal amount of Term Loans set forth opposite such
date (each such repayment, together with each repayment of AR Loans required by
clause (b)(II) below, a "Scheduled Repayment"):
Date Amount
- ---- ------
September 30, 1996 $2,666,000
December 31, 1996 $2,666,000
March 31, 1997 $2,668,000
June 30, 1997 $2,250,000
September 30, 1997 $2,250,000
December 31, 1997 $2,250,000
March 31, 1998 $2,250,000
June 30, 1998 $2,500,000
September 30, 1998 $2,500,000
December 31, 1998 $2,500,000
March 31, 1999 $2,500,000
June 30, 1999 $2,750,000
September 30, 1999 $2,750,000
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Date Amount
- ---- ------
December 31, 1999 $2,750,000
March 31, 2000 $2,750,000
June 30, 2000 $3,000,000
September 30, 2000 $3,000,000
December 31, 2000 $3,000,000
March 30, 2001 $3,000,000
June 30, 2001 $3,000,000
September 30, 2001 $3,000,000
December 31, 2001 $3,000,000
March 31, 2002 $3,000,000
June 30, 2002 $3,250,000
September 30, 2002 $3,250,000
December 31, 2002 $3,250,000
Final Maturity Date $3,250,000
(II) On each date set forth below, the Borrower shall be required to
repay the AR Repayment Percentage of the principal amount of AR Loans set forth
opposite such date:
Repayment Date Amount
-------------- -----
June 30, 1999 $625,000
September 30, 1999 $625,000
December 31, 1999 $625,000
March 31, 2000 $625,000
June 30, 2000 $750,000
September 30, 2000 $750,000
December 31, 2000 $750,000
March 31, 2001 $750,000
June 30, 2001 $750,000
September 30, 2001 $750,000
December 31, 2001 $750,000
March 31, 2002 $750,000
June 30, 2002 $1,000,000
September 30, 2002 $1,000,000
December 31, 2002 $1,000,000
Final Maturity Date $1,000,000
(c) On the Business Day following the date of receipt thereof by
Holdings, the Borrower and/or any of its Subsidiaries of the Cash Proceeds from
any Asset Sale, an amount equal to 100% of the Net Cash Proceeds from such Asset
Sale shall be applied as a mandatory repayment of FIRST, the principal of the
then outstanding Term Loans and SECOND, if no Term Loans are outstanding and the
AR Termination Date has occurred, the principal of the then
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outstanding AR Loans, provided that such Net Cash Proceeds from Permitted Asset
Sales shall not be required to be used to so repay Loans to the extent the
Borrower elects, as hereinafter provided, to cause such Net Cash Proceeds to be
reinvested in Reinvestment Assets (a "Reinvestment Election"). The Borrower may
exercise its Reinvestment Election (within the parameters specified in the
preceding sentence) with respect to an Asset Sale if (x) no Default or Event of
Default exists and (y) the Borrower delivers a Reinvestment Notice to the Agent
on the Business Day following the date of the consummation of the respective
Asset Sale, with such Reinvestment Election being effective with respect to the
Net Cash Proceeds of such Asset Sale equal to the Anticipated Reinvestment
Amount specified in such Reinvestment Notice.
(d) On the date of the receipt thereof by Holdings or the Borrower,
as the case may be, an amount equal to 75% of the proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith) of
any sale or issuance of equity by Holdings or the Borrower, respectively (other
than equity issued to management and other employees of Holdings, the Borrower
or its Subsidiaries, the exercise of any warrants outstanding on the Initial
Borrowing Date and/or any amount of cash received by Holdings or the Borrower in
connection with any capital contributions made by the Existing UOH Stockholders)
shall be applied as a mandatory repayment of FIRST, the principal of the then
outstanding Term Loans and SECOND, if no Term Loans are outstanding and the AR
Termination Date has occurred, the principal of the then outstanding AR Loans
provided that the first $5,000,000 of such proceeds in the aggregate do not have
to be so applied to repay Loans.
(e) On each date which is 90 days after the last day of each fiscal
year of the Borrower (commencing with the fiscal year ending on December 31,
1997), 50% of Excess Cash Flow for the fiscal year then last ended shall be
applied as a mandatory repayment of FIRST, the principal of the then outstanding
Term Loans and SECOND, if no Term Loans are outstanding and the AR Termination
Date has occurred, the principal of the then outstanding AR Loans.
(f) On the Reinvestment Prepayment Date with respect to a
Reinvestment Election, an amount equal to the Reinvestment Prepayment Amount, if
any, for such Reinvestment Election shall be applied as a repayment of FIRST,
the principal of the then outstanding Term Loans and SECOND, if no Term Loans
are outstanding and the AR Termination Date has occurred, the principal of the
then outstanding AR Loans.
(g) On the date on which any Change of Control occurs, the
outstanding principal amount of all Loans shall become due and payable in full.
(h) On the Revolving Facility Termination Date, the outstanding
principal amount of all Loans shall become due and payable in full.
(B) APPLICATION:
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(a) Each mandatory repayment of Term Loans and AR Loans required to
be made pursuant to Sections 4.02(A) (other than pursuant to clause (a) or (b)
thereof) shall be applied to reduce the Scheduled Repayments of Term Loans and
AR Loans, respectively, on a PRO RATA basis (based upon the then remaining
outstanding principal amount of each such Scheduled Repayment of Term Loans and
AR Loans, respectively).
(b) With respect to each prepayment of Loans required by Section
4.02, the Borrower may designate the Types of Loans which are to be prepaid and
the specific Borrowing(s) under the affected Facility pursuant to which made,
provided that (i) Eurodollar Loans may so be designated for prepayment pursuant
to this Section 4.02 only on the last day of an Interest Period applicable
thereto unless all Eurodollar Loans made pursuant to such Facility with Interest
Periods ending on such date of required prepayment and all Base Rate Loans made
pursuant to such Facility have been paid in full; (ii) if any prepayment of
Eurodollar Loans made pursuant to a single Borrowing shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount for such Borrowing, such Borrowing shall be immediately
converted into Base Rate Loans; (iii) each prepayment of any AR Loans made by
Non-Defaulting Banks pursuant to a Borrowing shall be applied PRO RATA among
such AR Loans; and (iv) each prepayment of any AR Loans made by Defaulting Banks
pursuant to a Borrowing shall be applied PRO RATA among such AR Loans. In the
absence of a designation by the Borrower as described in the preceding sentence,
the Agent shall, subject to the above, make such designation in its sole
discretion with a view, but no obligation, to minimize breakage costs owing
under Section 1.11.
1.043 METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the Agent
for the ratable (based on its PRO RATA share) account of the Banks entitled
thereto, not later than 1:00 P.M. (New York time) on the date when due and shall
be made in immediately available funds and in lawful money of the United States
of America at the Payment Office, it being understood that written notice by the
Borrower to the Agent to make a payment from the funds in the Borrower's account
at the Payment Office shall constitute the making of such payment to the extent
of such funds held in such account. Any payments under this Agreement which are
made later than 1:00 P.M. (New York time) shall be deemed to have been made on
the next succeeding Business Day. Whenever any payment to be made hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension.
1.044 NET PAYMENTS. (a) All payments made by the Borrower
hereunder, under any Note or any other Credit Document, will be made without
setoff, counterclaim or other defense. Except as provided for in Section
4.04(b), all such payments will be made free and clear of, and without deduction
or withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein
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(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income (or any franchise tax) of a Bank
pursuant to the laws of the jurisdiction in which the principal office or
applicable lending office of such Bank is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which the
principal office or applicable lending office of such Bank is located) and all
interest, penalties or similar liabilities with respect thereto (collectively,
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to pay the
full amount of such Taxes and such additional amounts as may be necessary so
that every payment of all amounts due hereunder, under any Note or under any
other Credit Document, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein or in such Note or
in such other Credit Document. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, then the Borrower shall also reimburse each
Bank, upon the written request of such Bank, for taxes imposed on or measured by
the net income of such Bank pursuant to the laws of the jurisdiction in which
the principal office or applicable lending office of such Bank is located or of
any political subdivision or taxing authority of any such jurisdiction and for
any withholding of income or similar taxes imposed by the United States of
America as such Bank shall determine are payable by, or withheld from, such Bank
in respect of Taxes paid to or on behalf of such Bank pursuant to this or the
preceding sentence. The Borrower will furnish to the Agent within 45 days after
the date the payment of any Taxes, or any withholding or deduction on account
thereof, is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by the Borrower. The Borrower will indemnify and hold
harmless the Agent and each Bank, and reimburse the Agent or such Bank upon its
written request, for the amount of any Taxes so levied or imposed and paid or
withheld by such Bank.
(b) Each Bank which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes
agrees (i) to provide to the Borrower on or prior to the Initial Borrowing Date
two original signed copies of Internal Revenue Service Form 4224 or Form 1001
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement, under
any Note and under any other Credit Document and (ii) that, (x) to the extent
legally entitled to do so, with respect to a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 12.04 hereof
(unless the respective Bank was already a Bank hereunder immediately prior to
such assignment or transfer), upon the date of such assignment or transfer to
such Bank, and (y) with respect to any Bank which is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes (including, without limi-tation, any assignee or
transferee), from time to time, upon the reasonable request by the Borrower or
the Agent after the Initial Borrowing Date, such Bank will provide to each of
the Borrower and the Agent two original signed copies of Internal Revenue
Service Form 4224 or Form 1001 (or any successor forms) certifying to such
Bank's entitlement to a complete exemption from, or reduction in, United States
withholding tax with respect to payments to be made under this Agreement, under
any Note and under any other Credit Document. Notwithstanding anything to the
contrary contained in Section 4.04(a), the Borrower shall be entitled, to the
extent it is required to do
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so by law, to deduct or withhold income or other similar taxes imposed by the
United States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder (without any
obligation under Section 4.04(a) to pay the respective Bank such taxes or any
additional amounts with respect thereto) for the account of any Bank which is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for United States federal income tax purposes and which has not
provided to the Borrower such forms required to be provided to the Borrower by a
Bank pursuant to the first sentence of this Section 4.04(b), provided that if
the Borrower shall so deduct or withhold any such taxes, it shall provide a
statement to the Agent and such Bank, setting forth the amount of such taxes so
deducted or withheld, the applicable rate and any other information or
documentation which such Bank may reasonably request for assisting such Bank in
obtaining any allowable credits or deductions for the taxes so deducted or
withheld in the jurisdiction or jurisdictions in which such Bank is subject to
tax. Notwithstanding anything to the contrary contained in the preceding
sentence, the Borrower agrees to indemnify each Bank in the manner set forth in
Section 4.04(a) in respect of any amounts deducted or withheld by it as
described in the previous sentence as a result of any changes after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of income or similar Taxes.
SECTION 5. CONDITIONS PRECEDENT. The obligation of the Banks to make
each Loan hereunder is subject, at the time of each such Credit Event (except as
otherwise hereinafter indicated), to the satisfaction of each of the following
conditions:
1.051 EXECUTION OF AGREEMENT. On or prior to the Initial Borrowing
Date, (i) this Agreement shall have become effective as provided in Section
12.10 and (ii) there shall have been delivered to the Agent for the account of
each Bank the appropriate Term Note and/or AR Note, in each case, executed by
the Borrower, and in the amount, maturity and as otherwise provided herein.
1.052 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
each Credit Event and also after giving effect thereto, (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents in effect at such time shall
be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Credit Event, except to the extent that such representations and warranties
expressly relate to an earlier date.
1.053 OFFICER'S CERTIFICATE. On the Initial Borrowing Date, the
Agent shall have received a certificate dated such date signed by the President
or any Vice President of the Borrower stating that all of the applicable
conditions set forth in Sections 5.02, 5.09, 5.10 and 5.11 exist as of such
date.
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1.054 OPINIONS OF COUNSEL. On the Initial Borrowing Date, the Agent
shall have received opinions, addressed to the Agent, and each of the Banks and
dated the Initial Borrowing Date, from (i) Winston & Strawn, counsel to the
Borrower, which opinion shall cover the matters contained in Exhibit C-1 hereto,
(ii) White & Case, special counsel to the Agent, which opinion shall cover the
matters contained in Exhibit C-2 hereto and (iii) from local counsel
satisfactory to the Agent as the Agent may request, which opinions shall cover
the perfection of the security interests granted pursuant to the Security
Documents and such other matters incident to the transactions contemplated
herein as the Agent may reasonably request and shall be in form and substance
satisfactory to the Agent.
1.055 CORPORATE PROCEEDINGS. (a) On the Initial Borrowing Date, the
Agent shall have received from the Borrower a certificate, dated the Initial
Borrowing Date, signed by the President or any Vice-President of the Borrower in
the form of Exhibit D with appropriate insertions and deletions, together with
copies of the certificate of formation, the by-laws, or other organizational
documents of the Borrower and the resolutions, or such other administrative
approval, of the Borrower referred to in such certificate and all of the
foregoing (including each such certificate of formation, certificate of
incorporation and by-laws) shall be satisfactory to the Agent.
(b) On the Initial Borrowing Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
satisfactory in form and substance to the Agent, and the Agent shall have
received all information and copies of all certificates, documents and papers,
including good standing certificates and any other records of corporate
proceedings and governmental approvals, if any, which the Agent may have
requested in connection therewith, such documents and papers, where appropriate,
to be certified by proper corporate or governmental authorities.
1.056 PLANS; ETC. On or prior to the Initial Borrowing Date, there
shall have been made available to the Agent, copies, certified as true and
correct by an appropriate officer of the Borrower of:
(i) any Plans, and for each Plan (x) that is a "single-employer plan"
(as defined in Section 4001(a)(15) of ERISA) the most recently completed
actuarial valuation prepared therefor by such Plan's regular enrolled
actuary and the Schedule B, "Actuarial Information" to the Internal Revenue
Service Form 5500 (Annual Report) most recently filed with the Internal
Revenue Service and (y) that is a "multiemployer plan" (as defined in
Section 4001(a)(3) of ERISA), each of the documents referred to in clause
(x) either in the possession of Holdings, the Borrower or any of its
Subsidiaries, or any ERISA Affiliate or reasonably available thereto from
the sponsor or trustees of such Plan;
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(ii) all agreements evidencing or relating to Existing Indebtedness
(the "Existing Indebtedness Agreements");
(iii) all agreements entered into by Holdings, the Borrower or any of
its Subsidiaries governing the terms and relative rights of its capital
stock, and any agreements entered into by members or shareholders relating
to any such entity with respect to their capital stock (collectively, the
"Shareholders' Agreements");
(iv) any agreement with members of, or with respect to, the management
of Holdings, the Borrower or any of its Subsidiaries (collectively, the
"Management Agreements"); and
(v) any employment agreements entered into by Holdings, the Borrower
or any of its Subsidiaries (collectively, the "Employment Agreements");
all of which Plans, Existing Indebtedness Agreements, Shareholders' Agreements,
Management Agreements and Employment Agreements shall be in form and substance
satisfactory to the Agent.
1.057 ADVERSE CHANGE, ETC. From December 31, 1995 (May 31, 1995 in
the case of NOA and its Subsidiaries) to the Initial Borrowing Date, nothing
shall have occurred (and neither the Banks nor the Agent shall have become aware
of any facts or conditions not previously known) which the Agent or the Required
Banks shall determine (a) has, or is reasonably likely to have, a material
adverse effect on the rights or remedies of the Banks or the Agent, or on the
ability of the Borrower to perform its obligations to them, or (b) has, or is
reasonably likely to have, a Material Adverse Effect.
1.058 LITIGATION. On the Initial Borrowing Date, there shall be no
actions, suits or proceedings pending or threatened (a) with respect to this
Agreement or any other Document or the transactions contemplated hereby or
thereby (including the Transaction) or (b) which the Agent or the Required Banks
shall determine has, or is reasonably likely to have (i) a Material Adverse
Effect or (ii) a material adverse effect on the rights or remedies of the Banks
hereunder or under any other Credit Document or on the ability of the Borrower
to perform its obligations to the Banks hereunder or under any other Credit
Document or upon the ability of the parties to consummate the Transaction.
1.059 APPROVALS. On the Initial Borrowing Date, all material
necessary governmental and third party approvals in connection with the
transactions contemplated by the Credit Documents and the other Transaction
Documents and otherwise referred to herein or therein shall have been obtained
and remain in effect, and all applicable waiting periods shall have expired
without any action being taken by any competent authority which restrains or
prevents such transactions or imposes, in the reasonable judgment of the
Required Banks or the Agent, materially adverse conditions upon the consummation
of such transactions. In addition,
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the Agent shall have received evidence satisfactory to it that all permits,
leases, licenses and consents material to the operations of Naegele and its
Subsidiaries and of the Borrower and its Subsidiaries shall remain in effect
after giving effect to the Transaction and/or shall have been obtained.
5.10 HOLDINGS RESTRUCTURING. On or prior to the Initial Borrowing
Date, there shall have been delivered to the Banks true and correct copies of
the UOH-Kelso Agreements, and all terms of the UOH-Kelso Agreements and all
other related documents shall be reasonably satisfactory to the Agent. The
UOH-Kelso Agreements (and the transactions contemplated thereby) shall have been
duly approved by the board of directors and the stockholders of Holdings, and
the UOH-Kelso Agreements shall have been duly executed and delivered by the
parties thereto and shall be in full force and effect. Each of the conditions
precedent to the obligation of Kelso to purchase Holdings capital stock as set
forth in the UOH-Kelso Agreements shall have been satisfied, or waived, all to
the reasonable satisfaction of the Agent, and concurrently with the making of
the Term Loans, Kelso shall have consummated its purchase of Holdings' capital
stock for at least $30 million in cash in accordance with the Kelso-UOH
Agreements and all applicable laws, rules and regulations.
5.11 ACQUISITION. On or prior to the Initial Borrowing Date, there
shall have been delivered to the Banks true and complete copies of the
Acquisition Documents and all terms of the Acquisition Agreement and of the
other Acquisition Documents shall be reasonably satisfactory to the Agent. Each
of the conditions precedent to the obligation of the Borrower to consummate the
Acquisition shall have been satisfied, or waived, all to the reasonable
satisfaction of the Agent and, concurrently with the making of the Term Loans,
the Borrower shall have consummated the Acquisition in accordance with the
Acquisition Agreement and all applicable laws, rules and regulations.
5.12 SECURITY DOCUMENTS. (a) On the Initial Borrowing Date, the
Borrower shall have duly authorized, executed and delivered a Pledge Agreement
in the form of Exhibit E (as modified, amended or supplemented from time to time
in accordance with the terms thereof and hereof, the "Borrower Pledge
Agreement"), and shall have delivered to the Collateral Agent, as pledgee
thereunder, all of the certificates representing the Pledged Securities referred
to therein, accompanied by executed and undated stock powers, and the Borrower's
Pledge Agreement shall be in full force and effect.
(b) On the Initial Borrowing Date, the Borrower and shall have duly
authorized, executed and delivered a Security Agreement substantially in the
form of Exhibit F (as modified, supplemented or amended from time to time in
accordance with the terms thereof and hereof, the "Security Agreement") covering
all of the Borrower's present and future Security Agreement Collateral, in each
case together with:
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(i) executed copies of Financing Statements (Form UCC-1) in
appropriate form for filing under the UCC of each jurisdiction as may be
necessary to perfect the security interests purported to be created by
the Security Agreement;
(ii) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of recent date listing all effective
financing statements that name the Borrower as debtor and that are filed in
the jurisdictions referred to in clause (i), together with copies of such
financing statements (none of which shall cover the Collateral except (x)
those with respect to which appropriate termination statements executed by
the secured lender thereunder have been delivered to the Agent and (y) to
the extent evidencing liens permitted pursuant to Section 8.03);
(iii) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created by the Security Agreement; and
(iv) evidence that all other actions necessary or, in the opinion of
the Collateral Agent, desirable to perfect and protect the security
interests purported to be created by the Security Agreement have been
taken.
(c) On the Initial Borrowing Date, each of the Existing UOH
Stockholders shall have each duly authorized, executed and delivered a Pledge
Agreement in the form of Exhibit G (as modified, amended or supplemented from
time to time in accordance with the terms thereof and hereof, the "UOH Pledge
Agreement") and shall have delivered to the Collateral Agent, as pledgee
thereunder, all of the certificates representing the Pledged Securities referred
to therein, accompanied by executed and undated stock powers, and each of the
UOH Pledge Agreement shall be in full force and effect.
(d) On the Initial Borrowing Date, the Agent shall have received
fully executed counterparts of deeds of trust, mortgages and similar documents
in each case in form and substance satisfactory to the Agent (each a "Mortgage"
and collectively, the "Mortgages") covering all the Mortgaged Properties, and
arrangements reasonably satisfactory to the Collateral Agent shall be in place
to provide that counterparts of such Mortgages shall be recorded on the Initial
Borrowing Date or within one Business Day thereafter in all places to the extent
necessary or desirable, in the judgment of the Collateral Agent, effectively to
create a valid and enforceable first priority Lien, subject only to Permitted
Encumbrances, on each Mortgaged Property in favor of the Collateral Agent (or
such other trustee as may be required or desired under local law) for the
benefit of the Banks.
5.13 SOLVENCY. On the Initial Borrowing Date, the Borrower shall
have delivered, or shall cause to be delivered to the Agent a solvency letter in
the form of Exhibit
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H hereto from the Chief Financial Officer of the Borrower and acceptable in form
and substance to the Agent.
5.14 INSURANCE POLICIES. On the Initial Borrowing Date, the
Collateral Agent shall have received evidence of insurance complying with the
requirements of Section 7.03 for the business and properties of the Borrower and
its Subsidiaries, in form and substance satisfactory to the Agent and, with
respect to all casualty insurance, naming the Collateral Agent as an additional
insured and loss payee.
5.15 FEES. On the Initial Borrowing Date, the Borrower shall have
paid to the Agent and the Banks all Fees and expenses agreed upon by such
parties to be paid on or prior to such date.
5.16 ENVIRONMENTAL REPORTS. On or prior to the Initial Borrowing
Date, the Agent shall have received environmental reports from Persons
reasonably satisfactory to the Agent covering the properties of NOA and its
Subsidiaries, which reports shall be reasonably satisfactory to the Agent.
5.17 CONSENT LETTER. On the Initial Borrowing Date, the Agent shall
have received a letter from CT Corporation System, presently located at 1633
Broadway, New York, New York, substantially in the form of Exhibit I, indicating
its consent to its appointment by the Borrower as its agent to receive service
of process as specified in Section 12.08.
5.18 RF CREDIT AGREEMENT. On the Initial Borrowing Date, the
Effective Date under and as defined in the RF Credit Agreement shall have
occurred (or would be required to occur in the absence of the condition
specified in Section 5.01(Q) of the RF Credit Agreement) and the Revolving
Facility Termination Date shall not have occurred.
5.19 ADJUSTED EBITDA. On or prior to the Initial Borrowing Date, the
Agent shall have received evidence satisfactory to it that Holdings and its
Subsidiaries plus NOA and its Subsidiaries shall have attained on a combined
basis an Adjusted EBITDA of at least $30 million for the last 12 months ended
prior to the Initial Borrowing Date for which financial statements are
reasonably available.
5.20 TESTED BORROWINGS. At the time of incurring any Tested
Borrowing, each of the covenants set forth in Sections 8.11 through 8.13 shall
have been satisfied as of, and no Event of Default under Section 9.08(B) or (C)
shall exist as of, the Measurement Date relating to such Tested Borrowing
determined on a PRO FORMA basis as set forth in Exhibit J.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to the Agent and each of the Banks
that all of the applicable conditions specified above exist as of that time.
All of the certificates, legal opinions and other documents and papers referred
to in this Section 5, unless otherwise
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specified, shall be delivered to the Agent at its Notice Office for the account
of each of the Banks and, except for the Notes, in sufficient counterparts for
each of the Banks and shall be satisfactory in form and substance to the Agent.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Banks to enter into this Agreement and to make the Loans, the
Borrower makes the following representations and warranties to, and agreements
with, the Banks, all of which shall survive the execution and delivery of this
Agreement and the making of the Loans (with all representations and warranties
made as of the Initial Borrowing Date to be made giving effect to the
Transaction).
1.061 CORPORATE STATUS. Each of Holdings, the Borrower and its
Subsidiaries (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its organization and has the
corporate power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (ii) has
duly qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified and where the failure to
be so qualified would have a Material Adverse Effect.
1.062 CORPORATE POWER AND AUTHORITY. The Borrower has the corporate
power and authority to execute, deliver and carry out the terms and provisions
of the Transaction Documents to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Transaction Documents to which it is a party. The Borrower has duly executed
and delivered each Transaction Document to which it is a party and each such
Transaction Document constitutes the legal, valid and binding obligation of the
Borrower enforceable in accordance with its terms.
1.063 NO VIOLATION. Neither the execution, delivery and performance
by the Borrower of the Transaction Documents to which it is a party nor
compliance with the terms and provisions thereof, nor the consummation of the
transactions contemplated therein (i) will contravene any applicable provision
of any law, statute, rule, regulation, order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or (other than pursuant to the
Security Documents) result in the creation or imposition of (or the obligation
to create or impose) any Lien upon any of the property or assets of the Borrower
or any of its Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, agreement or other instrument to which Holdings, the Borrower or
any of its Subsidiaries is a party or by which it or any of its property or
assets are bound or to which it may be subject or (iii) will violate any
provision of the Charter or By-Laws of the Borrower or any of its Subsidiaries.
1.064 LITIGATION. There are no actions, suits or proceedings pending
or, to the Borrower's knowledge, threatened with respect to the Borrower or any
of its Subsidiaries (i) that are likely to have a Material Adverse Effect or
(ii) that could reasonably be expected to
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have a material adverse effect on the rights or remedies of the Banks or on the
ability of the Borrower to perform its obligations to them hereunder and under
the other Credit Documents.
1.065 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of all
Term Loans shall be utilized (i) to finance, in part, the Acquisition and (ii)
to pay certain fees and expenses relating to the Acquisition.
(b) The proceeds of all AR Loans may be used (i) on the Initial
Borrowing Date for the purposes described in Section 6.05(a) and/or to refinance
in part existing indebtedness of the Borrower other than Existing Indebtedness
and (ii) to finance Permitted Acquisitions.
(c) Neither the making of any Loan hereunder, nor the use of the
proceeds thereof, will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System
and no part of the proceeds of any Loan will be used to purchase or carry any
Margin Stock in violation of Regulation U or to extend credit for the purpose of
purchasing or carrying any Margin Stock.
1.066 GOVERNMENTAL APPROVALS. Except for filings and recordings in
connection with the Security Documents, and those items listed on Annex III, no
order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any foreign or domestic
governmental or public body or authority, or any subdivision thereof, that has
not been obtained or made is required to authorize or is required in connection
with (i) the execution, delivery and performance of any Transaction Document or
(ii) the legality, validity, binding effect or enforceability of any Credit
Document.
1.067 INVESTMENT COMPANY ACT. None of Holdings, the Borrower nor any
of its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
1.068 PUBLIC UTILITY HOLDING COMPANY ACT. None of Holdings, the
Borrower or any of its Subsidiaries is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company," or of
a "subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
1.069 TRUE AND COMPLETE DISCLOSURE. All factual information (taken
as a whole) heretofore or contemporaneously furnished by or on behalf of
Holdings, the Borrower or any of its Subsidiaries in writing to the Agent or any
Bank for purposes of or in connection with this Agreement or any transaction
contemplated herein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of any such Person in writing to any
Bank will be, true and accurate in all material respects on the date as of which
such information is dated or certified and not incomplete by omitting to state
any material fact
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necessary to make such information (taken as a whole) not misleading at such
time in light of the circumstances under which such information was provided.
The projections and PRO FORMA financial information contained in such materials
are based on good faith estimates and assumptions believed by such Persons to be
reasonable at the time made, it being recognized by the Banks that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results. There is no fact known to the Borrower which would
have a Material Adverse Effect, which has not been disclosed herein or in such
other documents, certificates and statements furnished to the Banks for use in
connection with the transactions contemplated hereby.
6.10 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as of the
Initial Borrowing Date, on a PRO FORMA basis after giving effect to the
Transaction and to all Indebtedness incurred, and to be incurred, and Liens
created, and to be created, in connection therewith, (x) the sum of the assets,
at a fair valuation, of the Borrower and its Subsidiaries, and of Holdings and
is Subsidiaries, taken as a whole will exceed their debts, (y) the Borrower and
its Subsidiaries, and Holdings and its Subsidiaries, taken as a whole will not
have incurred or intended to, or believe that they will, incur debts beyond
their ability to pay such debts as such debts mature and (z) the Borrower and
its Subsidiaries, and Holdings and its Subsidiaries, taken as a whole will not
have unreasonably small capital with which to conduct their business. For
purposes of this Section 6.10, "debt" means any liability on a claim, and
"claim" means (i) right to payment whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured; or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b)(i) The consolidated balance sheet of Holdings and of the Borrower
at December 31, 1994 and December 31, 1995 and the related consolidated
statements of operations and cash flows of Holdings and of the Borrower for the
fiscal years ended as of said dates, which have been examined by Price
Waterhouse LLP, independent certified public accountants, who delivered an
unqualified opinion in respect therewith, (ii) the Financial Statements (as
defined in the Acquisition Agreement) and (iii) the PRO FORMA consolidated
balance sheet of the Borrower as of February 28, 1996, copies of which have
heretofore been furnished to each Bank, present fairly the financial position of
such entities at the dates of said statements and the results for the period
covered thereby (or, in the case of the PRO FORMA balance sheet, presents a good
faith estimate of the consolidated PRO FORMA financial condition of the Borrower
(after giving effect to the Transaction and the related financing thereof) at
the date thereof) in accordance with GAAP, except to the extent provided in the
notes to said financial statements. All such financial statements (other than
the aforesaid PRO FORMA balance sheets) have been prepared in accordance with
generally accepted accounting principles and practices consistently applied
except to the extent provided in the notes to said financial statements. Except
for the incurrence of Indebtedness to finance the Acquisition, nothing has
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occurred since December 31, 1995 that has had or could reasonably be expected to
have a Material Adverse Effect.
(c) Except as reflected in the financial statements and the notes
thereto described in Section 6.10(b), there were as of the Initial Borrowing
Date no liabilities or obligations with respect to Holdings, the Borrower or any
of its Subsidiaries of a nature (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
would be material to the Borrower and its Subsidiaries, and to Holdings and its
Subsidiaries, taken as a whole, except as incurred in the ordinary course of
business consistent with past practices subsequent to December 31, 1995 and
except for the Indebtedness incurred to finance the Acquisition.
6.11 SECURITY INTERESTS. On and after the Initial Borrowing Date,
each of the Security Documents create, as security for the Obligations purported
to be secured thereby, a valid and enforceable perfected security interest in
and Lien on all of the Collateral subject thereto, superior to and prior to the
rights of all third Persons and subject to no other Liens (except (x) that the
Security Agreement Collateral may be subject to the security interests evidenced
by Permitted Liens relating thereto and (y) the Mortgaged Properties may be
subject to Permitted Encumbrances relating thereto), in favor of the Collateral
Agent for the benefit of the Banks. No filings or recordings are required in
order to perfect the security interests created under any Security Document
except for filings or recordings required in connection with any such Security
Document (other than the Pledge Agreements) which shall have been made upon or
prior to (or are the subject of arrangements, satisfactory to the Agent, for
filing on or promptly after the date of) the execution and delivery thereof.
6.12 REPRESENTATIONS AND WARRANTIES IN TRANSACTION DOCUMENTS. All
representations and warranties (other than of the Sellers under and as defined
in the Acquisition Agreement) set forth in the Transaction Documents were true
and correct in all material respects as of the time such representations and
warranties were made and shall be true and correct in all material respects as
of the Initial Borrowing Date as if such representations and warranties were
made on and as of such date, unless stated to relate to a specific earlier date,
in which case such representations and warranties shall be true and correct in
all material respects as of such earlier date.
6.13 CONSUMMATION OF TRANSACTION. As of the Initial Borrowing Date,
the Transaction shall have been consummated in accordance with the terms and
conditions of the Transaction Documents and all applicable laws. All applicable
waiting periods with respect thereto have or, prior to the time when required,
will have, expired without, in all such cases, any action being taken by any
competent authority which restrains, prevents, or imposes material adverse
conditions upon the consummation of the Transaction. As of the Initial
Borrowing Date, there does not exist any judgment, order, or injunction
prohibiting the consummation of the Transaction, or the making of Loans or the
performance by the Borrower of its obligations under the Documents.
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6.14 TAX RETURNS AND PAYMENTS. Each of Holdings, the Borrower and
its Subsidiaries has filed all federal income tax returns and all other material
tax returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith.
Holdings, the Borrower and its Subsidiaries have paid, or have provided adequate
reserves (in the good faith judgment of the management of the Borrower) for the
payment of, all federal, state and foreign income taxes applicable for all prior
fiscal years and for the current fiscal year to the date hereof.
6.15 COMPLIANCE WITH ERISA. Each Plan is in substantial compliance
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an Unfunded Current
Liability; no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; neither the Borrower, nor any Subsidiary nor any ERISA Affiliate has
incurred any material liability to or on account of a Plan pursuant to Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971, 4975 or 4980 of the Code or expects to incur any
liability (including any indirect, contingent or secondary liability) under any
of the foregoing Sections with respect to any Plan; no proceedings have been
instituted to terminate or appoint a trustee to administer any Plan; no
condition exists which presents a material risk to the Borrower or any
Subsidiary or any ERISA Affiliate of incurring a liability to or on account of a
Plan pursuant to the foregoing provisions of ERISA and the Code; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of the Borrower and its
Subsidiaries and its ERISA Affiliates to all Plans which are multiemployer plans
(as defined in Section 4001(a)(3) of ERISA) in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ended prior to the date of the most recent Credit Event, would not
exceed $150,000; no lien imposed under the Code or ERISA on the assets of the
Borrower or any Subsidiary or any ERISA Affiliate exists or is likely to arise
on account of any Plan; and Holdings, the Borrower and its Subsidiaries do not
maintain or contribute to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) which provides benefits to retired employees (other than
as required by Section 601 of ERISA) or any employee pension benefit plan (as
defined in Section 3(2) of ERISA), except to the extent that all events
described in the preceding clauses of this Section 6.15 and then in existence
would not, in the aggregate, have or be likely to have a Material Adverse
Effect. With respect to Plans that are multiemployer plans (within the meaning
of Section 4001(a)(3) of ERISA) the representations and warranties in this
Section 6.15 are made to the best knowledge of the Borrower.
6.16 SUBSIDIARIES. (a) Annex IV hereto lists each Subsidiary of the
Borrower existing on the Initial Borrowing Date. The Borrower owns 100% of the
outstanding capital stock of each such Subsidiary. The Borrower will at all
times own directly 100% of the
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outstanding capital stock of all of said entities except to the extent otherwise
permitted pursuant to Section 8.02.
(b) There are no restrictions on the Borrower or any of its
Subsidiaries which prohibit or otherwise restrict the transfer of cash or other
assets from any Subsidiary of the Borrower to the Borrower, other than
prohibitions or restrictions existing under or by reason of (i) this Agreement,
the other Credit Documents, the RF Credit Agreement, the Senior Notes and the
Discount Notes, (ii) applicable law, (iii) customary non-assignment provisions
entered into in the ordinary course of business and consistent with past
practices, (iv) any restriction or encumbrance with respect to a Subsidiary of
the Borrower imposed pursuant to an agreement which has been entered into for
the sale or disposition of all or substantially all of the capital stock or
assets of such Subsidiary, so long as such sale or disposition is permitted
under this Agreement, and (v) any documents or instruments governing the terms
of any Indebtedness or other obligations secured by Liens permitted by Section
8.03, provided that such prohibitions or restrictions apply only to the assets
subject to such Liens.
6.17 PATENTS, ETC. The Borrower and each of its Subsidiaries have
obtained all material patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their businesses taken as a whole as
presently conducted and as proposed to be conducted.
6.18 POLLUTION AND OTHER REGULATIONS. (a) Each of Holdings, the
Borrower and its Subsidiaries is in compliance with all Environmental Laws
governing its business for which failure to comply is reasonably likely to have
a Material Adverse Effect, and neither Holdings, the Borrower nor any of its
Subsidiaries is liable for any material penalties, fines or forfeitures for
failure to comply with any of the foregoing in the manner set forth above. All
licenses, permits, registrations or approvals required for the business of the
Borrower and each of its Subsidiaries, as conducted as of the Initial Borrowing
Date, under any Environmental Law have been secured and the Borrower and each of
its Subsidiaries is in substantial compliance therewith, except such licenses,
permits, registrations or approvals the failure to secure or to comply therewith
is not likely to have a Material Adverse Effect. Neither Holdings, the Borrower
nor any of its Subsidiaries is in noncompliance with, breach of or default under
any applicable writ, order, judgment, injunction, or decree to which Holdings,
the Borrower or such Subsidiary is a party or which would affect the ability of
the Borrower or such Subsidiary to operate any real property and no event has
occurred and is continuing which, with the passage of time or the giving of
notice or both, would constitute noncompliance, breach of or default thereunder,
except in each such case, such noncompliance, breaches or defaults as are not
likely to, in the aggregate, have a Material Adverse Effect. There are as of
the Initial Borrowing Date no Environmental Claims pending or, to the best
knowledge of the Borrower, threatened, which (a) challenge the validity, term or
entitlement of the Borrower or any of its Subsidiaries for any permit, license,
order or registration required for the operation of any facility under the
Environmental Laws which the Borrower or any of its Subsidiaries operates and
(b) wherein an unfavorable decision, ruling or finding would be
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reasonably likely to have a Material Adverse Effect. There are no facts,
circumstances, conditions or occurrences concerning Holdings, the Borrower or
any of its Subsidiaries, any of their operations or on any Real Property or, to
the knowledge of the Borrower, on any property adjacent to any such Real
Property that could reasonably be expected (i) to form the basis of an
Environmental Claim against the Borrower, any of its Subsidiaries or any Real
Property of the Borrower or any of its Subsidiaries, or (ii) to cause such Real
Property to be subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property under any Environmental Law, except in
each such case, such Environmental Claims or restrictions that individually or
in the aggregate are not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated,
used, treated or stored on, or transported to or from, any Real Property of the
Borrower or any of its Subsidiaries or (ii) released on any Real Property, in
each case where such occurrence or event individually or in the aggregate is
reasonably likely to have a Material Adverse Effect.
6.19 PROPERTIES. The Borrower and each of its Subsidiaries have good
and marketable title to all properties owned by them, including all property
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries, and the Financial Statements, referred to in Section 6.10(b), free
and clear of all Liens, other than (i) as referred to in the consolidated
balance sheet, or the Financial Statements, or, in either case, in the notes
thereto or (ii) otherwise permitted by Section 8.03. Annex V contains a true
and complete list of each Real Property owned or leased by the Borrower or any
of its Subsidiaries on the Effective Date (other than properties that are purely
sign locations) and the type of interest therein held by the Borrower or the
respective Subsidiary. Holdings owns no properties or assets (other than the
Tax Sharing Agreement) other than all of the capital stock of the Borrower.
6.20 LABOR RELATIONS. Holdings, the Borrower and its Subsidiaries
are not engaged in any unfair labor practice that could reasonably be expected
to have a Material Adverse Effect. There is (i) no unfair labor practice
complaint pending against Holdings, the Borrower or any of its Subsidiaries or
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against any of them or threatened against any
of them, (ii) no strike, labor dispute, slowdown or stoppage pending against
Holdings, the Borrower or any of its Subsidiaries or threatened against any of
them and (iii) no union representation question existing with respect to the
employees of Holdings, the Borrower or any of its Subsidiaries and no union
organizing activities are taking place, except with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate, such as is not reasonably likely to have a Material Adverse Effect.
6.21 EXISTING INDEBTEDNESS. Annex VI sets forth a true and complete
list of all Indebtedness of Holdings, the Borrower and each of its Subsidiaries
as of the Initial Borrowing Date that is in excess of $5,000 for any one issue
and is to remain outstanding after
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giving effect to the Transaction (all such Indebtedness, of whatever size, but
excluding Indebtedness hereunder and under the RF Credit Agreement, the
"Existing Indebtedness"), in each case showing the aggregate principal amount
thereof and the name of the respective borrower (or issuer) and any other entity
which directly or indirectly guaranteed such debt.
SECTION 7. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees
that on the Initial Borrowing Date and thereafter for so long as this Agreement
is in effect and until the Commitments have terminated, no Notes are outstanding
and the Loans, together with interest, Fees and all other Obligations incurred
hereunder, are paid in full:
1.071 INFORMATION COVENANTS. The Borrower will furnish to each Bank:
(a) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close of
each fiscal year of the Borrower, the consolidated balance sheet of the
Borrower and its Subsidiaries and of Holdings and its Subsidiaries, as at
the end of such fiscal year and the related consolidated statements of
income and retained earnings and of cash flows for such fiscal year, in
each case setting forth comparative consolidated figures for the preceding
fiscal year, and examined by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to the
scope of audit and as to the status of Holdings, the Borrower or any of its
Subsidiaries as a going concern, together with a certificate of such
accounting firm stating that in the course of its regular audit of the
business of Holdings and of the Borrower, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge of any Default or Event of Default which has
occurred and is continuing or, if in the opinion of such accounting firm
such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year, the consolidated balance sheet of
the Borrower and its Subsidiaries and of Holdings and its Subsidiaries, as
at the end of such quarterly period and the related consolidated statements
of income and retained earnings and of cash flows for such quarterly period
and for the elapsed portion of the fiscal year ended with the last day of
such quarterly period, and in each case setting forth comparative
consolidated figures for the related periods in the prior fiscal year, all
of which shall be certified by the chief financial officer or controller of
the Borrower or Holdings, as appropriate, subject to changes resulting from
audit and normal year-end audit adjustments.
(c) MONTHLY REPORTS. As soon as practicable, and in any event within
30 days, after the end of each monthly accounting period of each fiscal
year the consolidated balance sheet of the Borrower and its Subsidiaries
and of Holdings and its Subsidiaries, as at the end of such period, and the
related consolidated statements of income and retained earnings for such
period, setting forth comparative figures for the
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corresponding period of the previous year, all of which shall be
certified by the chief financial officer or controller of the Borrower or
Holdings, as appropriate, subject to changes resulting from audit and
normal year-end audit adjustments.
(d) BUDGETS; ETC. Not more than 60 days after the commencement of
each fiscal year of the Borrower, a budget of the Borrower and its
Subsidiaries in reasonable detail for each of the twelve months of such
fiscal year. Together with each delivery of consolidated financial
statements pursuant to Sections 7.01(a), (b) and (c), a comparison of the
current year to date financial results against the budgets required to be
submitted pursuant to this clause (d) shall be presented.
(e) OFFICER'S CERTIFICATES. (i) At the time of the delivery of the
financial statements provided for in Sections 7.01(a), (b) and (c), a
certificate of the chief financial officer, controller or other Authorized
Officer of the Borrower to the effect that no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying the
nature and extent thereof, which certificate, shall set forth the
calculations required to establish (I) the Modified Holdings Leverage Ratio
for the Relevant Determination Date occurring on the last day of such
fiscal year, quarter or month, (II) whether the Borrower and its
Subsidiaries were in compliance with the provisions of Sections 8.11, 8.12
and 8.13 as at the end of such fiscal period or year, as the case may be
and (III) whether there was any Event of Default under Section 9.08(B)
and/or 9.08(C) as at the end of such fiscal period.
(ii) At the time of any incurrence of Consolidated Debt of Holdings
and its Subsidiaries at a time when the Margin Reduction Discount is (or
based on the last officer's certificate delivered pursuant to clause (i)
above will be) greater than zero, a certificate of any of the persons
specified in clause (i) above setting forth the calculations establishing
the Modified Holdings Leverage Ratio after giving effect to the incurrence
of such Consolidated Debt.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any event
within three Business Days after the Borrower obtains knowledge thereof,
notice of (x) the occurrence of any event which constitutes a Default or
Event of Default which notice shall specify the nature thereof, the period
of existence thereof and what action the Borrower proposes to take with
respect thereto and (y) the commencement of or any significant development
in any litigation or governmental proceeding pending against Holdings, the
Borrower or any of its Subsidiaries which is likely to have a Material
Adverse Effect or is likely to have a material adverse effect on the
ability of the Borrower to perform its obligations hereunder or under any
other Credit Document.
(g) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy of each
other final report or "management letter" submitted to Holdings or the
Borrower by its
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independent accountants in connection with any annual, interim or special
audit made by it of the books of Holdings and/or the Borrower.
(h) ENVIRONMENTAL MATTERS. Promptly upon, and in any event within 20
Business Days after an officer of Holdings, the Borrower or any Subsidiary
obtains knowledge thereof, notice of one or more of the following
environmental matters: (i) any pending or threatened (in writing) material
Environmental Claim against, or for which liability would attach to, the
Borrower or any of its Subsidiaries or any Real Property owned or operated
by the Borrower or any of its Subsidiaries; (ii) any condition or
occurrence on or arising from any Real Property owned or operated by the
Borrower or any of its Subsidiaries that (a) results in material
noncompliance by Holdings, the Borrower or any of its Subsidiaries with any
applicable material Environmental Law or (b) would reasonably be expected
to form the basis of a material Environmental Claim against, or for which
liability would attach to, the Borrower or any of its Subsidiaries or any
such Real Property; (iii) any condition or occurrence on any Real Property
owned or operated by the Borrower or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject to any
material restrictions on the ownership, occupancy, use or transferability
by the Borrower or any of its Subsidiaries of such Real Property under any
Environmental Law; and (iv) the taking of any material removal or remedial
action in response to the actual or alleged presence of any Hazardous
Material on any Real Property owned or operated by the Borrower or any of
its Subsidiaries as required by any Environmental Law or any governmental
or other administrative agency, and all such notices shall describe in
reasonable detail the nature of the claim, investigation, condition,
occurrence or removal or remedial action and the Borrower's or such
Subsidiary's response thereto.
(i) OTHER INFORMATION. Promptly upon transmission thereof, (i)
copies of any filings and registrations with, and reports to, the
Securities and Exchange Commission or any successor thereto (the "SEC") by
Holdings, the Borrower or any of its Subsidiaries and (ii) with reasonable
promptness, such other information or documents (financial or otherwise) as
the Agent on its own behalf or on behalf of the Required Banks may
reasonably request from time to time.
1.072 BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will
cause its Subsidiaries to, permit, upon reasonable notice to the chief financial
officer, controller or any other Authorized Officer of the Borrower officers and
designated representatives of the Agent or the Required Banks to visit and
inspect any of the properties or assets of the Borrower and any of its
Subsidiaries in whomsoever's possession, and to examine the books of account of
Holdings, the Borrower and any of its Subsidiaries and discuss the affairs,
finances and accounts of Holdings, the Borrower and of any of its Subsidiaries
with, and be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as the Agent or the Required Banks may desire.
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1.073 INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect insurance in
such amounts, covering such risks and liabilities and with such deductibles or
self-insured retentions as are in accordance with normal industry practice,
provided that in no event will any such deductible or self-insured retention in
respect of liability claims or in respect of casualty damage, exceed, in each
such case, (i) $250,000 per occurrence or (ii) $1,000,000 in the aggregate per
fiscal year. At any time that insurance at the levels described in Annex VII is
not being maintained by the Borrower and its Subsidiaries, the Borrower will
notify the Banks in writing thereof and, if thereafter notified by the Agent to
do so, the Borrower will, and will cause its Subsidiaries to, obtain insurance
at such levels at least equal to those set forth in Annex VII to the extent then
generally available (but in any event within the deductible or self-insured
retention limitations set forth in the preceding sentence) or otherwise as are
acceptable to the Agent. The Borrower will, and will cause each of its
Subsidiaries to, furnish on the Initial Borrowing Date and annually thereafter
to the Agent a summary of the insurance carried together with certificates of
insurance and other evidence of such insurance, if any, naming the Collateral
Agent as an additional insured and/or loss payee.
1.074 PAYMENT OF TAXES. The Borrower will pay and discharge, and
will cause each Subsidiary to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims which, if unpaid, might become a Lien or charge
upon any properties of Holdings, the Borrower or any of its Subsidiaries,
provided that neither Holdings, the Borrower nor any Subsidiary shall be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves (in the good faith judgment of the management of the Borrower) with
respect thereto in accordance with GAAP.
1.075 CONSOLIDATED CORPORATE FRANCHISES. The Borrower will do, and
will cause each Subsidiary to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its existence, material rights and
authority, provided that any transaction permitted by Section 8.02 will not
constitute a breach of this Section 7.05.
1.076 COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will
cause each Subsidiary to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property other than those the non-compliance with which would not have a
Material Adverse Effect or would not have a material adverse effect on the
ability of the Borrower to perform its obligations under any Credit Document.
1.077 ERISA. As soon as possible and, in any event, within 10 days
after the Borrower or any of its Subsidiaries or ERISA Affiliates knows or has
reason to know of the occurrence of any of the following, the Borrower will
deliver to each of the Banks a certificate of the chief financial officer of the
Borrower setting forth details as to such occurrence and
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such action, if any, which the Borrower, such Subsidiary or such ERISA Affiliate
is required or proposes to take, together with any notices required or proposed
to be given to or filed with or by the Borrower, the Subsidiary, the ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to an
individual participant's benefits) or the Plan administrator with respect
thereto: that a Reportable Event has occurred; that an accumulated funding
deficiency has been incurred or an application is reasonably likely to be or has
been made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code with respect
to a Plan; that a Plan which has an Unfunded Current Liability has been or may
be terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability and there is a failure to
make a required contribution, which gives rise to a lien under ERISA or the
Code; that proceedings are reasonably likely to be or have been instituted to
terminate a Plan which has an Unfunded Current Liability; that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that the Borrower, any Subsidiary or any ERISA Affiliate
will or may incur any liability (including, any contingent or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409, 502(l) or 502(l) of ERISA or that the Borrower or any Subsidiary or
Holdings may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any employee pension benefit plan (as defined in Section 3(2)
of ERISA). Upon request of a Bank, the Borrower will deliver to such Bank a
complete copy of the annual report (Form 5500) of each Plan required to be filed
with the Internal Revenue Service. In addition to any certificates or notices
delivered to the Banks pursuant to the first sentence hereof, copies of any
annual reports and any other material notices received by Holdings, the Borrower
or any Subsidiary with respect to a Plan shall be delivered to the Banks no
later than 10 days after the later of the date such notice has been filed with
the Internal Revenue Service or the PBGC, given to Plan participants (other than
notices relating to an individual participant's benefits) or received by
Holdings, the Borrower or such Subsidiary.
1.078 GOOD REPAIR. The Borrower will, and will cause each of its
Subsidiaries to, ensure that its properties and equipment used or useful in its
business in whomsoever's possession they may be, are kept in good repair,
working order and condition, normal wear and tear excepted, and, subject to
Section 8.05, that from time to time there are made in such properties and
equipment all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner
useful or customary for companies in similar businesses.
1.079 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries' fiscal years to end on
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December 31 of each year and (ii) each of its, and each of its Subsidiaries'
fiscal quarters to end on March 31, June 30, September 30 and December 31 of
each year.
7.10 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) The Borrower
will, and will cause its Subsidiaries to, grant to the Collateral Agent security
interests and mortgages (each an "Additional Mortgage") in such owned Real
Property of the Borrower and its Subsidiaries acquired after the Initial
Borrowing Date as may be requested from time to time by the Agent. Such
Mortgages shall be granted pursuant to documentation reasonably satisfactory in
form and substance to the Agent and shall constitute valid and enforceable Liens
superior to and prior to the rights of all third Persons and subject to no other
Liens except as are permitted by Section 8.03. The Additional Mortgages or
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish, perfect, preserve
and protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Additional Mortgages and all taxes, fees and other charges
payable in connection therewith shall have been paid in full.
(b) The Borrower will, and will cause its Subsidiaries to, at the
expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, real property surveys, reports
and other assurances or instruments and take such further steps relating to the
collateral covered by any of the Security Documents as the Collateral Agent may
reasonably require. Furthermore, the Borrower shall cause to be delivered to
the Collateral Agent such opinions of counsel, title insurance and other related
documents as may be requested by the Agent to assure themselves that this
Section 7.10 has been complied with.
(c) The Borrower agrees that each action required above by this
Section 7.10 shall be completed as soon as possible, but in no event later than
60 days after such action is requested to be taken by the Agent or the Required
Banks, provided that in no event shall the Borrower be required to take any
action, other than using its reasonable commercial efforts without any material
expenditure, to obtain consents from third parties with respect to its
compliance with this Section 7.10.
(d) Within 30 days after the Initial Borrowing Date, the Borrower
shall deliver to the Agent environmental Phase I reviews from Persons reasonably
satisfactory to the Agent covering the properties of the Borrower and its
Subsidiaries the scope and results of which shall be in form and substance
reasonably satisfactory to the Agent.
(e) Within 30 days after the Initial Borrowing Date, the Borrower
shall deliver to the Agent mortgagee title insurance policies issued by title
insurers reasonably satisfactory to the Collateral Agent (the "Mortgage
Policies") in amounts reasonably satisfactory to the Collateral Agent and
assuring the Collateral Agent that the Mortgages in respect of the Mortgaged
Properties are valid and enforceable first priority mortgage Liens on
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the respective Mortgaged Properties, free and clear of all defects and
encumbrances except Permitted Encumbrances. Such Mortgage Policies shall be in
form and substance reasonably satisfactory to the Collateral Agent and shall
include an endorsement for future advances under this Agreement, the Notes and
the Mortgages, for mechanics liens and for any other matter that the Collateral
Agent in its discretion may reasonably request.
7.11 CORPORATE SEPARATENESS. The Borrower will take, and will cause
each of its Subsidiaries to take, all such action as is necessary to keep the
operations of the Borrower and its Subsidiaries separate and apart from those of
Holdings, including, without limitation, ensuring that all customary formalities
regarding corporate existence, including holding regular board of directors'
meetings and maintenance of corporate records, are followed. All financial
statements of the Borrower and its Subsidiaries provided to creditors will
clearly evidence the corporate separateness of the Borrower and its Subsidiaries
from Holdings. Finally, neither the Borrower nor any of its Subsidiaries will
take any action, or conduct its affairs in a manner which is likely to result in
the corporate existence of Holdings on the one hand, and the Borrower and its
Subsidiaries on the other, being ignored, or in the assets and liabilities of
the Borrower or any of its Subsidiaries being substantively consolidated with
those of Holdings in a bankruptcy, reorganization or other insolvency
proceeding. No action expressly provided for in this Agreement, the other
Credit Documents, the RF Credit Agreement, the Senior Notes and/or the Discount
Notes will breach this covenant.
7.12 INTEREST RATE AGREEMENT. The Borrower will, no later than the
date occurring 180 days after the Initial Borrowing Date, enter into an Interest
Rate Agreement with a term of at least three years in respect of amounts equal
to or greater than $37.5 million of the outstanding Term Loans on such date on
terms satisfactory to the Agent and the Co-Agent, plus, at the Borrower's
election, additional interest rate caps acceptable to the Agent and the
Co-Agent.
7.13 COMPLIANCE WITH ENVIRONMENTAL LAWS. (i) The Borrower will
comply, and the Borrower will cause each of its Subsidiaries to comply, with all
Environmental Laws applicable to the ownership, lease or use of all Real
Property now or hereafter owned, leased or operated by the Borrower or any of
its Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (ii) neither the Borrower nor any of its Subsidiaries
will generate, use, treat, store, release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of Hazardous Materials
on any Real Property now or hereafter owned, leased or operated by the Borrower
or any of its Subsidiaries, or transport or permit the transportation of
Hazardous Materials to or from any such Real Property, except to the extent that
the failure to comply with the requirements specified in clause (i) or (ii)
above, either individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect. If required to do so under any applicable
directive or order of any governmental agency, the Borrower agrees to undertake,
and cause each of its Subsidiaries to undertake, any clean up, removal,
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remedial or other action necessary to remove and clean up any Hazardous
Materials from any Real Property owned, leased or operated by the Borrower or
any of its Subsidiaries in accordance with, in all material respects, the
requirements of all applicable Environmental Laws and in accordance with, in all
material respects, such orders and directives of all governmental authorities,
except to the extent that the Borrower or such Subsidiary is contesting such
order or directive in good faith and by appropriate proceedings and for which
adequate reserves have been established to the extent required by generally
accepted accounting principles.
SECTION 8. NEGATIVE COVENANTS. The Borrower hereby covenants and
agrees, as of the Initial Borrowing Date and thereafter for so long as this
Agreement is in effect and until the Commitments have terminated, no Notes are
outstanding and the Loans, together with interest, Fees and all other
Obligations incurred hereunder, are paid in full, that (it being agreed that no
provision of Section 8.02, 8.03, 8.04, 8.06, 8.08, 8.09 or 8.10 shall at any
time be defaulted by, or shall be interpreted to prohibit, any action by the
Borrower or any of its Subsidiaries (other than Naegele) to the extent (x) such
action was not prohibited by the LaSalle Loan Agreement and (y) a restriction on
any such action is prohibited by Section 3.12 of the Senior Note Indenture
and/or Section 3.13 of the Discount Note Indenture, in each case as in effect on
the Initial Borrowing Date, to the extent the Senior Notes and the Discount
Notes, respectively, are then outstanding):
1.081 CHANGES IN BUSINESS. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any line of business other than the
business of outdoor advertising, including transit and bus shelter, stadium,
transport terminal and other similar out-of-home advertising services and any
administrative or similar activities reasonably related thereto.
1.082 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC. The
Borrower will not, and will not permit any Subsidiary to, wind up, liquidate or
dissolve its affairs, or enter into any transaction of merger or consolidation,
sell or otherwise dispose of all or any part of its property or assets (other
than inventory or obsolete equipment or excess equipment no longer needed in the
conduct of the business in the ordinary course of business) or purchase, lease
or otherwise acquire all or any part of the property or assets of any Person
(other than purchases or other acquisitions of inventory, leases, materials and
equipment in the ordinary course of business) or agree to do any of the
foregoing at any future time, except that the following shall be permitted:
(a) any Subsidiary of the Borrower other than Naegele may be merged
or consolidated with or into, or be liquidated into, the Borrower (so long
as the Borrower is the surviving corporation) or any other Subsidiary (so
long as Naegele is the surviving corporation if it is such other
Subsidiary), or all or any part of its business, properties and assets may
be conveyed, leased, sold or transferred to the Borrower or any other
Subsidiary;
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(b) capital expenditures to the extent within the limitations set
forth in Section 8.05 hereof;
(c) the investments, acquisitions and transfers or dispositions of
properties permitted pursuant to Section 8.06;
(d) each of the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
such lease does not create a Capitalized Lease Obligation not otherwise
permitted by Section 8.04(d));
(e) licenses or sublicenses by the Borrower and its Subsidiary of
software, customer lists, trademarks and other intellectual property in the
ordinary course of business, provided, that such licenses or sublicenses
shall not interfere with the business of the Borrower or any Subsidiary;
(f) other sales or dispositions of assets (I) for cash in an amount
equal to the fair market value thereof as determined by the Borrower and/or
(II) in exchange for other assets permitted to be held under Section 8.01
provided that, in each case, (i) the assets so sold or disposed of,
together with all other assets, previously sold or disposed of pursuant to
this clause (f) after or during the Calculation Period applicable to such
sale or disposition, shall not have generated Adjusted EBITDA of the
Borrower during such Calculation Period (taken as one accounting period)
equal to 15% or more of the aggregate Adjusted EBITDA of the Borrower
during such Calculation Period (taken as one accounting period), (ii) the
assets so sold or disposed of, together with all other assets previously
sold or disposed of pursuant to this clause (f) after the Initial Borrowing
Date, shall not have generated Adjusted EBITDA of the Borrower during the
period (taken as one accounting period) commencing on the Initial Borrowing
Date and ending on the last day of the last month for which financial
statements of the Borrower are reasonably available equal to 25% or more of
the aggregate Adjusted EBITDA of the Borrower during such period (taken as
one accounting period) and (iii) the Net Cash Proceeds, if any, of any such
sale are applied to repay the Loans to the extent required by Section
4.02(A)(c), and, provided further, that (x) the sale or disposition of the
capital stock of any Subsidiary of the Borrower shall be prohibited unless
it is for all of the outstanding capital stock of such Subsidiary owned by
the Borrower and (y) Naegele may not be sold or disposed of pursuant to
this clause (f);
(g) other sales or dispositions of assets in each case to the extent
the Required Banks have consented in writing thereto and subject to such
conditions as may be set forth in such consent;
(h) any Subsidiary other than Naegele may be liquidated into the
Borrower; and
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(i) Permitted Acquisitions.
1.083 LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any such Subsidiary whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to the
Borrower or any of its Subsidiaries) or assign any right to receive income, or
file or permit the filing of any financing statement under the UCC or any other
similar notice of Lien under any similar recording or notice statute, except:
(a) Liens for taxes not yet due or Liens for taxes being contested in
good faith and by appropriate proceedings for which adequate reserves (in
the good faith judgment of the management of the Borrower) have been
established;
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business, such as carriers', warehousemen's and mechanics' Liens,
statutory landlord's Liens, and other similar Liens arising in the ordinary
course of business, and (x) which do not in the aggregate materially
detract from the value of such property or assets or materially impair the
use thereof in the operation of the business of the Borrower or any
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement or the other
Credit Documents;
(d) (x) Liens on assets of the Borrower and each Subsidiary existing
on the Initial Borrowing Date and listed on Part A of Annex VIII hereto,
without giving effect to any subsequent extensions or renewals thereof, (y)
Liens on assets of the Borrower and each Subsidiary existing on the Initial
Borrowing Date and added to Part B of Annex VIII by the Borrower and the
Agent within 30 days after the Initial Borrowing Date so long as such Liens
are deemed immaterial by the Agent and (z) immaterial Liens on assets of
the Borrower and each Subsidiary existing on the Initial Borrowing Date at
the locations listed on Part B of Annex VIII;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09
provided, that no cash or property is deposited or delivered to secure any
respective judgment or award (or any appeal bond in respect thereof, except
as permitted by the following clause (f));
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(f) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the
ordinary course of business (exclusive of obligations in respect of the
payment for borrowed money) provided, that the aggregate amount of deposits
at any time pursuant to this clause (f) shall not exceed $500,000;
(g) Leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any of its
Subsidiaries;
(h) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(i) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(j) Purchase money Liens securing payables arising from the purchase
by the Borrower of any equipment or goods in the normal course of business,
provided that such payables shall not constitute Indebtedness;
(k) Any interest or title of a lessor or any lien on the interest or
title of a lessor under any lease permitted by this Agreement;
(l) Liens arising pursuant to purchase money mortgages relating to,
or security interests securing Indebtedness representing the purchase price
of, assets acquired by the Borrower and/or Naegele after the Initial
Borrowing Date, provided that any such Liens attach only to the assets so
acquired and that all Indebtedness secured by Liens created pursuant to
this clause (l) shall not exceed $1,000,000 at any time outstanding;
(m) Liens created pursuant to Capital Leases permitted pursuant to
Section 8.04(d);
(n) Liens on assets of Subsidiaries of the Borrower other than
Naegele in favor of the Borrower; and
(o) Liens on assets of the Borrower securing Indebtedness not in
excess of $1,000,000 at any time outstanding.
1.084 INDEBTEDNESS. The Borrower will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
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(a) Indebtedness incurred pursuant to this Agreement, the other
Credit Documents and the RF Credit Agreement;
(b) Indebtedness owing by (i) any Subsidiary other than Naegele to
the Borrower or another Subsidiary other than Naegele, (ii) Naegele to the
Borrower to the extent not in excess of $1,000,000 at any time outstanding
and (iii) the Borrower to any Subsidiary (provided that no such
Indebtedness owing to Naegele may be incurred while an Event of Default
exists);
(c) Indebtedness of the Borrower evidenced by the Senior Notes, in an
aggregate principal amount not to exceed $65,000,000;
(d) Capitalized Lease Obligations of the Borrower and/or Naegele,
provided that the aggregate Capitalized Lease Obligations under all Capital
Leases entered into after Initial Borrowing Date shall not exceed
$5,000,000;
(e) Existing Indebtedness, without giving effect to any subsequent
extension, renewal or refinancing thereof;
(f) Indebtedness under Interest Rate Agreements to the extent entered
into on or after the Initial Borrowing Date in compliance with Section
7.12;
(g) Indebtedness incurred pursuant to purchase money mortgages
permitted by Section 8.03(l); and
(h) additional Indebtedness of the Borrower not to exceed an
aggregate outstanding principal amount of $5,000,000 at any time.
1.085 CAPITAL EXPENDITURES. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, incur Consolidated Capital Expenditures,
provided that the Borrower and Naegele may make Consolidated Capital
Expenditures (x) during the fiscal year of the Borrower ended December 31, 1996
(but only for the portion thereof commencing on the Initial Borrowing Date in
the case of Naegele) (taken as one accounting period) in an aggregate amount not
in excess of $6,000,000 and (y) during each successive fiscal year of the
Borrower in an aggregate amount not in excess of 105% of the maximum amount for
the prior 12-month period.
(b) In the event that the maximum amount which is permitted to be
expended in respect of Consolidated Capital Expenditures during any fiscal year
pursuant to Section 8.05(a) (without giving effect to this clause (b)) is not
fully expended during such fiscal year, the maximum amount which may be expended
during the immediately succeeding fiscal year pursuant to Section 8.05(a) shall
be increased by such unutilized amount provided that such increase shall not
exceed $3,000,000 in any fiscal year.
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(c) In addition to the foregoing, the Borrower and Naegele may make
Consolidated Capital Expenditures in amounts in excess of those permitted under
Sections 8.05(a) and (b) provided that the amount of such additional
Consolidated Capital Expenditures shall not exceed the sum of (x) the Available
ECF Amount and (y) the Available Equity Amount in each case as determined at the
time of, but immediately prior to, the making thereof.
1.086 INVESTMENTS AND LOANS. The Borrower will not make or permit to
exist any Investments or Loans in or to any other Person or acquire or establish
any Subsidiary, except for Permitted Investments or as permitted by the next
sentence. Notwithstanding anything contained in this Section 8.06 to the
contrary, Borrower may acquire 100% of the Capital Stock of (x) Quantum
Structure & Design, Inc. and (y) any other Person if, in the case of clause (y),
the following conditions are satisfied: (i) an Event of Default has not
occurred and is continuing under this Agreement and will not occur as a result
of, in connection with or after giving effect to such acquisition; (ii) the
Person being acquired engages exclusively in the business permitted to be
engaged in by Borrower and its Subsidiaries pursuant to Section 8.01; (iii)
title to all of the assets acquired in such acquisition is transferred by
operation of law, assignment, sale or otherwise, to Borrower within 60 days of
the consummation of such acquisition; and (iv) such acquired assets are
expressly made subject to the Liens created by the Security Documents.
1.087 SUBSIDIARIES; ETC. The Borrower will not (x) sell, assign or
otherwise encumber or dispose of, and will not permit any of its Subsidiaries
directly or indirectly to issue, sell, assign, pledge or otherwise encumber or
dispose of, any shares of a Subsidiary's capital stock or other securities (or
warrants, rights or options to acquire shares or other equity securities) of
such Subsidiary, except to the Borrower (to the extent otherwise permitted
hereunder) and except for dispositions permitted by Section 8.02, (y) after the
Initial Borrowing Date, create or permit to be created any new Subsidiary except
to the extent created in compliance with the second sentence of Section 8.06 and
(z) violate or breach the provisions of Section 3.11(a) of the Senior Note
Indenture as in effect on the Effective Date.
1.088 PREPAYMENTS OF INDEBTEDNESS, ETC. The Borrower will not, and
will not permit any of its Subsidiaries to:
(a) make (or give any notice in respect thereof) any voluntary or
optional payment or prepayment or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying
when due) or exchange of the Senior Notes or any other Existing
Indebtedness provided that the Borrower may Purchase Senior Notes (x) in an
amount at the time of any such Purchase equal to the Available ECF Amount
at the time of, but immediately prior to, such Purchase provided that at
such time (i.e., immediately prior to such Purchase) the Holding Leverage
Ratio is less than 5.00 to 1.0, (y) in an amount at the time of any such
Purchase equal to the
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Available Equity Amount at the time of, but immediately prior to, such
Purchase and (z) as otherwise consented to by the Required Banks;
(b) amend or modify, or permit the amendment or modification of, any
provisions of (x) any Senior Note Documents or (y) the RF Credit Agreement;
and/or
(c) amend, modify or change in any manner adverse to the interests of
the Banks the Certificate of Incorporation (including, without limitation,
by the filing of any certificate of designation) or By-Laws of the Borrower
or Naegele or any agreement entered into by the Borrower, with respect to
its capital stock, or the Acquisition Documents or enter into any new
agreement in any manner adverse to the interests of the Banks with respect
to the capital stock of the Borrower or Naegele.
1.089 DIVIDENDS, ETC. (a) The Borrower will not redeem, retire,
purchase or otherwise acquire, directly or indirectly, any Capital Stock of
Borrower or other evidence of ownership interest, or declare or pay dividends
upon any Capital Stock of Borrower or make any distribution of Borrower's
property or assets, provided that this Section 8.09 will not prohibit, so long
as no Event of Default shall have occurred and is continuing or would occur as a
consequence thereof, (i) the repurchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of the Borrower from the
estate of Daniel L. Simon solely out of the proceeds of any policy of insurance
maintained to provide funds for such purpose, (ii) the payment of dividends to
Holdings in an annual amount not to exceed $120,000 to fund payments of interest
on the promissory note of Holdings held by William H. Smith (or his successors
in interest), (iii) the payment of cash Dividends to Holdings to the extent the
proceeds are promptly used to pay administrative costs arising in the ordinary
course of business, (iv) the payment of cash Dividends to Holdings to be
promptly utilized by Holdings to purchase its Common Stock (or options or
warrants to purchase such Common Stock) from officers, employees and directors
(or their estates) upon the death, permanent disability, retirement or
termination of employment of any such Person or otherwise in accordance with any
stock option plan or any employee stock ownership plan or any warrant plan and
(v) the payment of cash Dividends to Holdings to the extent that the proceeds
are used on the date of receipt to Purchase Discount Notes provided that any
such Dividend will not exceed the Modified Available Amount at the time of, but
immediately prior to, the making of such Dividend.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or
restriction which prohibits or otherwise restricts (A) the ability of any
Subsidiary to (a) pay dividends or make other distributions or pay any
Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or advances
to the Borrower or any Subsidiary, (c) transfer any of its properties or assets
to the Borrower or any Subsidiary or (B) the ability of the Borrower or any
other Subsidiary of the Borrower to create, incur, assume or suffer to exist any
Lien upon its property or assets to secure the Obligations, other than
prohibitions or restrictions existing under or by reason of:
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(i) this Agreement, the other Credit Documents, the RF Credit Agreement, the
Senior Note Documents and the Discount Notes;(ii) applicable law;(iii) customary
non-assignment provisions entered into in the ordinary course of business and
consistent with past practices;(iv) any restriction or encumbrance with respect
to a Subsidiary of the Borrower imposed pursuant to an agreement which has been
entered into for the sale or disposition of all or substantially all of the
capital stock or assets of such Subsidiary, so long as such sale or disposition
is permitted under this Agreement; and (v) Liens permitted under Section 8.03
and any documents or instruments governing the terms of any Indebtedness or
other obligations secured by any such Liens, provided that such prohibitions or
restrictions apply only to the assets subject to such Liens.
8.10 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any Subsidiary to, sell, lease, license, transfer, exchange, or
otherwise dispose of any of its properties, assets or services to, or purchase,
lease, or license the use of any property, assets or services from, or transfer
funds to, or enter into any contract, agreement, understanding, loan, advance or
guarantee with, to or for the benefit of, any Affiliate (each of the foregoing,
an "Affiliate Transaction", whether constituting one transaction or a series of
related transactions), unless (a) such Affiliate Transaction is on terms that
are no less favorable to the Borrower or the relevant Subsidiary than those that
would have been obtained in a comparable transaction by the Borrower or such
Subsidiary with an unrelated person and (b) Borrower delivers to the Agent (i)
with respect to any Affiliate Transaction involving aggregate payments in excess
of $250,000, an officers' certificate setting forth a resolution of the Board of
Directors of the Borrower approved by a majority of the members of the Board of
Directors (and a majority of the disinterested members of the Board of
Directors, if any) certifying that such Affiliate Transaction complies with
clause(a) above and (ii) with respect to any Affiliate Transaction involving
aggregate payments in excess of $3.0 million, an opinion as to the fairness,
from a financial point of view, of such Affiliate Transaction to the Borrower or
such Subsidiary issued by an independent investment banking firm of national
standing with total assets in excess of $1.0 billion. The foregoing limitation
does not limit, and shall not apply to, (i) the payment of reasonable annual
compensation to directors or executive officers of the Borrower or any
Subsidiary thereof, (ii) transactions described in Annex IX hereto, provided
that the fees described in Annex IX shall accrue and not be paid at any time
that a Default or an Event of Default specified in Section 9.01 shall occur and
be continuing or (iii) payments by the Borrower to Holdings under the Tax
Sharing Agreement.
8.11 FIXED CHARGE COVERAGE RATIO. The Borrower will not permit the
ratio of (i) Adjusted EBITDA of the Borrower to (ii) Consolidated Fixed Charges
of the Borrower for any 12 month period (taken as one accounting period) ending
on a Measurement Date (or if less the period from the Initial Borrowing Date to
such Measurement Date) to be less than 1.00 to 1.
8.12 MINIMUM ADJUSTED EBITDA. The Borrower will not permit Adjusted
EBITDA of the Borrower for any 12 month period (taken as one accounting period)
ending on
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a Measurement Date occurring in a period set forth below to be less than the
amount set forth opposite such period:
Period Amount
------ ------
Effective Date through March 30, 1997 $30,000,000
March 31, 1997 through March 30, 1998 $32,000,000
March 31, 1998 through March 30, 1999 $33,500,000
Thereafter $35,000,000
8.13 BORROWER LEVERAGE RATIO. The Borrower will not permit the
Borrower Leverage Ratio as of any Measurement Date occurring in a period set
forth below to be more than the ratio set forth opposite such period:
Period Ratio
------- -----
Effective Date through March 30, 1997 5.25 to 1.0
March 31, 1997 through March 30, 1998 4.75 to 1.0
March 31, 1998 through March 30, 1999 4.00 to 1.0
Thereafter 3.50 to 1.0
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
1.091 PAYMENTS. The Borrower shall (i) default in the payment when
due of any principal of the Loans or (ii) default, and such default shall
continue for five or more days, in the payment when due of any interest on the
Loans or any Fees or any other amounts owing hereunder or under any other Credit
Document; or
1.092 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by the Borrower herein or in any other Credit Document or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto shall prove to be untrue in any material respect on the date as of
which made or deemed made; or
1.093 COVENANTS. The Borrower shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 7.10, 7.11 or 8, or (b) default in the due performance or observance by
it of any term, covenant or agreement (other than those referred to in Section
9.01, 9.02 or clause (a) of this Section 9.03) contained in this Agreement and
such default shall continue unremedied for a period of at least 30 days after
notice to the defaulting party by the Agent or the Required Banks; or
1.094 DEFAULT UNDER OTHER AGREEMENTS. (a) Holdings, the Borrower or
any of its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
applicable thereto or (ii) default in the
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observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause any such Indebtedness to become due prior to its
stated maturity; or (b) any such Indebtedness of Holdings, the Borrower or any
of its Subsidiaries shall be declared to be due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to the
stated maturity thereof, provided that it shall not constitute an Event of
Default pursuant to this Section 9.04 unless the principal amount of such
Indebtedness exceeds $2,500,000 individually or in the aggregate at any one
time; or
1.095 BANKRUPTCY, ETC. Holdings, the Borrower or any of its
Subsidiaries shall commence a voluntary case concerning itself under Title 11 of
the United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against Holdings, the Borrower or any of its Subsidiaries and the
petition is not controverted within 10 days, or is not dismissed within 60 days,
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of Holdings, the Borrower or any of its Subsidiaries; or Holdings, the
Borrower or any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to Holdings, the Borrower or any of its
Subsidiaries; or there is commenced against Holdings, the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or Holdings, the Borrower or any of its Subsidiaries is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; Holdings, the Borrower or any of its Subsidiaries
suffers any appointment of any custodian or the like for it or any substantial
part of its property to continue undischarged or unstayed for a period of 60
days; or Holdings, the Borrower or any of its Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate action is taken by
Holdings, the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
1.096 ERISA. (a) A single-employer plan (as defined in Section 4001
of ERISA) established by the Borrower, any of its Subsidiaries or any ERISA
Affiliate shall fail to maintain the minimum funding standard required by
Section 412 of the Code for any plan year or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code or shall provide security to induce the issuance of such waiver or
extension, (b) any Plan is or shall have been or is likely to be terminated or
the subject of termination proceedings under ERISA or an event has occurred
entitling the PBGC to terminate a Plan under Section 4042(a) of ERISA, (c) any
Plan shall have an Unfunded Current Liability or (d) the Borrower or a
Subsidiary or any ERISA Affiliate has incurred or is likely to incur a material
liability to or on account of a termination of or a withdrawal from a Plan under
Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA; and there shall result
from any such
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event or events described in the preceding clauses of this Section 9.06 the
imposition of a Lien upon the assets of Holdings, the Borrower or any
Subsidiary, the granting of a security interest, or a liability or a material
risk of incurring a liability to the PBGC or a Plan or a trustee appointed under
ERISA or a penalty under Section 4971 of the Code, in each case which would
have, in the opinion of the Required Banks a Material Adverse Effect; or
1.097 SECURITY DOCUMENTS. Any Security Document shall cease to be in
full force and effect, or shall cease to give the Collateral Agent any Lien
encumbering assets with an aggregate fair market value in excess of $2,500,000
(and, if encumbering assets with a fair market value of less than $2,500,000,
for a period greater than thirty or more days), or any material rights, powers
and privileges purported to be created thereby in favor of the Collateral Agent
or the Borrower shall default in any material respect in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any such Security Document; or
1.098 HOLDINGS. (A) Holdings shall after the Initial Borrowing Date
(i) incur any Indebtedness, (ii) grant or create any Lien on any of its assets
that secures Indebtedness, (iii) modify or amend the Discount Note Indenture or
Discount Notes or (except with the proceeds of equity contributions from
Existing UOH Stockholders) prepay any of the Discount Notes, (iv) engage in any
business or activity other than the ownership of all of the capital stock of the
Borrower and administrative activities directly related thereto, (v) sell or
dispose of any of, or otherwise cease to own all of, the capital stock of the
Borrower, (vi) change its fiscal quarters or fiscal year from those applicable
also to the Borrower, (vii) fail to maintain its own payroll and books of
account and bank accounts separate from those of the Borrower and its
Subsidiaries, (viii) fail to pay its liabilities, including all administrative
expenses, from its own separate assets, (ix) fail to separately identify and
segregated its assets from the assets of the Borrower and its Subsidiaries,
except in each case (a) as expressly required by any of the Shareholders'
Agreements, Management Agreements, Tax Sharing Agreements, subscription
agreements with members of management and the Discount Notes, all as in effect
on the Effective Date, (b) as expressly required by law, (c) Holdings issuing
Capital Stock in any initial or subsequent public offering to the extent the
proceeds thereof are used to repay the Loans as required by Section 4.02(A)(d)
hereof and (d) Holdings Purchasing Discount Notes (x) in an amount at the time
of any such Purchase equal to the Available ECF Amount at the time of, but
immediately prior to, such Purchase provided that at such time (i.e.,
immediately prior to such Purchase) the Holdings Leverage Ratio is less than
5.00 to 1.0 or (y) in an amount at the time of any such Purchase equal to the
Available Equity Amount at the time of, but immediately prior to, such Purchase
and/or (x) amend, modify or change in any way adverse to the interests of the
Banks, its Certificate of Incorporation (including, without limitation, by the
filing or modification of any certificate of designation) or By-Laws or any
agreement entered into by Holdings with respect to its capital stock; and/or
(B) The Holdings Leverage Ratio as of any Measurement Date occurring
in a period set forth below is more than the ratio set forth opposite such
period:
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Period Ratio
------ -----
Effective Date through March 30, 1997 6.25 to 1.0
March 31, 1997 through March 30, 1998 5.75 to 1.0
Thereafter 5.00 to 1.0; and/or
(C) The ratio of (i) Adjusted EBITDA of Holdings to (ii) Consolidated
Cash Interest Expense of Holdings for any 12 month period (taken as one
accounting period) ending on a Measurement Date (or if less the period from the
Initial Borrowing Date to such Measurement Date) occurring in a period set forth
below is less than the ratio set forth opposite such period.
Period Ratio
------ -----
Effective Date through March 30, 1997 1.75 to 1.0
March 31, 1997 through March 30, 1998 2.00 to 1.0
March 31, 1998 through March 30, 1999 2.25 to 1.0
March 31, 1999 through March 30, 2000 2.25 to 1.0
March 31, 2000 through March 30, 2001 2.00 to 1.0
Thereafter 2.25 to 1.0; or
1.099 JUDGMENTS. One or more judgments or decrees shall be entered
against Holdings, the Borrower and/or any of its Subsidiaries involving a
liability of $2,500,000 or more or in the aggregate (not paid or to the extent
not covered by insurance) and any such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal within 60 days from the
entry thereof; or
9.10 RF CREDIT AGREEMENT. An Event of Default under and as defined
in the RF Credit Agreement shall have occurred and be continuing;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Agent shall, upon the written request of the
Required Banks, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Agent or any Bank to
enforce its claims against the Borrower, except as otherwise specifically
provided for in this Agreement (provided that, if an Event of Default specified
in Section 9.05 shall occur with respect to the Borrower, the result which would
occur upon the giving of written notice by the Agent as specified in clauses (i)
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Commitment terminated, whereupon the Commitment of each
Bank shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
all obligations owing hereunder to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are
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hereby waived by the Borrower; and/or (iii) enforce, as Collateral Agent (or
direct the Collateral Agent to enforce), any or all of the Liens and security
interests created pursuant to the Security Documents.
SECTION 10. DEFINITIONS. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acquisition" shall mean the acquisition by the Borrower of 100% of
the outstanding capital stock of NOA pursuant to the Acquisition Documents,
followed immediately by the merger of NOA with and into the Borrower.
"Acquisition Agreement" shall mean the Stock Purchase Agreement, dated
February 27, 1996, among the Borrower and the Sellers listed therein as
delivered to the Banks pursuant to Section 5.11, as the same may be amended or
modified in accordance with the provisions thereof and hereof.
"Acquisition Documents" shall mean the Acquisition Agreement and all
other documents entered into to effectuate the Acquisition.
"Additional Mortgage" shall have the meaning provided in Section 7.10.
"Adjusted Cash Flow" for any fiscal year shall mean Consolidated Net
Income of the Borrower for such fiscal year (after provision for taxes) plus the
amount of all net non-cash charges (including, without limitation, depreciation,
deferred tax expense, non-cash interest expense, amortization and other non-cash
charges) that were deducted in arriving at such Consolidated Net Income for such
fiscal year, minus the amount of all non-cash gains and gains from sales of
assets (other than sales of inventory and equipment in the normal course of
business) that were added in arriving at such Consolidated Net Income for such
fiscal year.
"Adjusted EBITDA" of any Person shall mean, for any period (x) the
Consolidated EBITDA of such Person for such period plus or minus (y) the
adjustments thereto provided for in Exhibit K.
"Adjusted Total AR Commitment" shall mean at any time the Total AR
Commitment less the aggregate AR Commitments of all Defaulting Banks.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies
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of such corporation, whether through the ownership of voting securities, by
contract or otherwise.
"Agent" shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Agent appointed pursuant to
Section 11.09.
"Agreement" shall mean this Acquisition Credit Agreement, as the same
may be from time to time further modified, amended and/or supplemented.
"Anticipated Reinvestment Amount" shall mean, with respect to any
Reinvestment Election, the amount specified in the Reinvestment Notice delivered
by the Borrower in connection therewith as the amount of the Net Cash Proceeds
from the related Permitted Asset Sale that the Borrower intends to use to
purchase, construct or otherwise acquire Reinvestment Assets.
"Applicable Base Rate Margin" shall mean 1.50% less the Margin
Reduction Discount, if any.
"Applicable Eurodollar Margin" shall mean 2.50% less the Margin
Reduction Discount, if any.
"AR Commitment" shall mean, with respect to each Bank, the amount set
forth opposite such Bank's name in Annex I hereto directly below the column
entitled "AR Commitment," as the same may be reduced from time to time pursuant
to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to time as a result of
assignments to or from such Bank pursuant to Section 12.04.
"AR Facility" shall mean the Facility evidenced by the Total AR
Commitment.
"AR Loan" shall have the meaning provided in Section 1.01(b).
"AR Note" shall have the meaning provided in Section 1.05(a).
"AR Repayment Percentage" shall mean the percentage obtained by
dividing (x) the aggregate principal amount of AR Loans outstanding on the AR
Termination Date by (y) $12,500,000.
"AR Termination Date" shall mean the third anniversary of the Initial
Borrowing Date or if earlier the date on which the Total AR Commitment is
terminated.
"Asset Sale" shall mean and include (x) the sale, transfer or other
disposition by the Borrower or any Subsidiary to any Person other than the
Borrower or any Subsidiary of any asset of the Borrower or such Subsidiary
(other than sales, transfers or other dispositions
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in the ordinary course of business of inventory and/or obsolete or excess
equipment and other than sales in which the Net Cash Proceeds are $50,000 or
less) and/or (y) the receipt by the Borrower or any Subsidiary of any insurance,
condemnation or similar proceeds in connection with a casualty or taking of any
of its assets.
"Authorized Officer" shall mean any senior officer of the Borrower
designated as such in writing to the Agent by the Borrower in each case to the
extent acceptable to the Agent.
"Available ECF Amount" shall mean at any time, an amount equal to (A)
50% of Excess Cash Flow determined for the fiscal year of the Borrower
(commencing with the fiscal year ending on December 31, 1997) then last ended
less (B) the sum of (i) the aggregate Consolidated Capital Expenditures
theretofore made during the then current fiscal year pursuant to Section 8.05(c)
and (ii) the aggregate amount theretofore expended, as permitted by Section
8.08(a)(x) or 9.08(A)(ix)(d)(x), as the case may be, during the then current
fiscal year to Purchase Senior Notes or Discount Notes, as the case may be.
"Available Equity Amount" shall mean at any time (A) an amount equal
to the aggregate proceeds at such time from the sale or issuance of equity by
Holdings or the Borrower after the Initial Borrowing Date not required to be
utilized to repay Loans under Section 4.02(A)(ii)(d) less (B) the sum of (x) the
aggregate amounts theretofore expended after the Initial Borrowing Date to
Purchase Senior Notes and/or Discount Notes pursuant to Section 8.08(a)(y) or
9.08(A)(ix)(d)(y), as the case may be, plus (y) the aggregate of any amounts
theretofore expended pursuant to Section 8.05(c) to the extent in excess of the
Available ECF Amount at such time.
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of AR Loans
or (ii) a Bank having notified the Agent and/or the Borrower that it does not
intend to comply with the obligations under Section 1.01, in the case of either
(i) or (ii) as a result of the appointment of a receiver or conservator with
respect to such Bank at the direction or request of any regulatory agency or
authority.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher, (i) the rate which is
1/2 of 1% in excess of the Federal Funds Effective Rate and (ii) the Prime
Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
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"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower Leverage Ratio" shall mean, at any Measurement Date, the
ratio of (x) Consolidated Debt of the Borrower on such date to (y) Adjusted
EBITDA of the Borrower for the 12 month period (taken as one accounting period)
ending on such date.
"Borrower Pledge Agreement" shall have the meaning provided in Section
5.12(a).
"Borrowing" shall mean the incurrence of one Type of Loan pursuant to
a single Facility by the Borrower from all of the Banks having Commitments with
respect to such Facility on a PRO RATA basis on a given date (or resulting from
conversions on a given date), having in the case of Eurodollar Loans the same
Interest Period; provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of any related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in U.S. dollar deposits in the interbank Eurodollar market.
"Calculation Period" shall mean, with respect to any sale or
disposition of assets made pursuant to Section 8.02(f), the last 12 month period
for which financial statements of the Borrower are reasonably available.
"Capital Lease" as applied to any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock, whether or not voting, including but not limited to common stock,
preferred stock, convertible debentures, warrants,
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options or similar rights to acquire such capital stock, and all agreements,
instruments and documents convertible, in whole or in part, into any one or more
or all of the foregoing.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Bank, (y)
any domestic commercial bank of recognized standing having capital and surplus
in excess of $500,000,000 or (z) any bank (or the parent company of such bank)
whose short-term commercial paper rating from Standard & Poor's Corporation
("S&P") is at least A-1 or the equivalent thereof or from Moody's Investors
Service, Inc. ("Moody's") is at least P-1 or the equivalent thereof (any such
bank, an "Approved Bank"), in each case with maturities of not more than six
months from the date of acquisition, (iii) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications specified
in clause (ii) above, (iv) commercial paper issued by any Bank or Approved Bank
or by the parent company of any Bank or Approved Bank and commercial paper
issued by, or guaranteed by, any industrial or financial company with a
short-term commercial paper rating of at least A-1 or the equivalent thereof by
S&P or at least P-1 or the equivalent thereof by Moody's (any such company, an
"Approved Company"), or guaranteed by any industrial company with a long term
unsecured debt rating of at least A or A2, or the equivalent of each thereof,
from S&P or Moody's, as the case may be, and in each case maturing within six
months after the date of acquisition and (v) investments in money market funds
substantially all of whose assets are comprised of securities of the type
described in clauses (i) through (iv) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection with such Asset Sale, other
than the portion of such deferred payment constituting interest, but only as and
when so received) and/or insurance or condemnation proceeds received by the
Borrower and/or any Subsidiary from such Asset Sale.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 ET
SEQ.
"Change of Control" shall mean (i) Holdings shall cease to own legally
and beneficially 100% of the outstanding capital stock of the Borrower, (ii)
prior to Holdings' initial public offering of common stock, the Permitted
Holders cease to be the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of 66-2/3% in the aggregate of
the total voting and economic ownership interests of Holdings, whether as a
result of the issuance of securities of Holdings, any merger, consolidation,
liquidation or dissolution of Holdings, any direct or indirect transfer of
securities or otherwise, (iii) Kelso Investment Associates V, L.P. and Kelso
Equity Partners V, L.P. shall cease to be
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the beneficial owner (as defined in clause (ii) above) of at least 50% of the
economic ownership interest of Holdings they hold on the Initial Borrowing Date
(after the consummation of the Transaction), (iv) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more
Permitted Holders, is or becomes the beneficial owner (as defined in clause (ii)
above, except that a person shall be deemed to have "beneficial ownership" of
all shares that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 30% of the total voting and economic ownership
interests of Holdings; PROVIDED, HOWEVER, that the Permitted Holders
"beneficially own" (as defined in clause (ii) above), directly or indirectly, in
the aggregate a lesser percentage of the total voting and economic ownership
interests of Holdings than such other person and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of Holdings, or (v) during any
period of two consecutive years individuals who at the beginning of such period
constituted the Board of Directors of Holdings (together with any new directors
whose election by such Board of Directors or whose nomination for election by
the stockholders of Holdings was approved by either (i) the Permitted Holders or
(ii) a vote of a majority of the directors of Holdings then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of Holdings then in office.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents.
"Collateral Agent" shall mean the Agent acting as collateral agent for
the Banks.
"Commitment" shall mean, with respect to each Bank, such Bank's Term
Commitment and AR Commitment.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Common Stock" shall mean the common stock of Holdings.
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events all amounts expended or capitalized under Capital
Leases but excluding any amount representing capitalized interest) by the
Borrower and its Subsidiaries during that period that, in conformity
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with GAAP, are or are required to be included in the property, plant or
equipment reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries, provided that Consolidated Capital Expenditures shall in any event
exclude the purchase price paid in connection with any Permitted Acquisition
(whether or not allocable to property, plant and equipment).
"Consolidated Cash Interest Expense" of any Person shall mean, for any
period, Consolidated Interest Expense of such Person, but excluding, however,
interest expense not payable in cash and amortization of discount and deferred
issuance and financing costs.
"Consolidated Current Assets" shall mean, as to any Person at any
time, the current assets (other than cash and Cash Equivalents) of such Person
and its Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, as to any Person at any
time, the current liabilities of such Person and its Subsidiaries determined on
a consolidated basis in accordance with GAAP, but excluding all short-term
Indebtedness for borrowed money and the current portion of any long-term
Indebtedness of such Person or its Subsidiaries, in each case to the extent
otherwise included therein.
"Consolidated Debt" of any Person shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness of
such Person and its Subsidiaries on a consolidated basis as determined in
accordance with GAAP.
"Consolidated EBIT" of any Person shall mean, for any period, (A) the
sum of the amounts for such period for such Person of (i) Consolidated Net
Income, (ii) provisions for taxes based on income, (iii) Consolidated Interest
Expense and (iv) losses on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary losses LESS (B) the amount for such
period of gains on sales of assets (excluding sales in the ordinary course of
business) and other extraordinary gains, all as determined on a consolidated
basis for such Person and its Subsidiaries in accordance with GAAP.
"Consolidated EBITDA" of any Person shall mean, for any period, the
sum of the amounts for such period for such Person of (i) Consolidated EBIT,
(ii) depreciation expense and (iii) amortization expense, all as determined on a
consolidated basis for such Person and its Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charges" of any Person shall mean, for any period,
the sum, without duplication, for such Person of the amounts for such period of
(i) Consolidated Cash Interest Expense, (ii) Dividends paid to Holdings, (iii)
Consolidated Capital Expenditures (x) made other than pursuant to Section
8.05(c) and (y) paid in cash, (iv) taxes paid or payable in cash and (v)
scheduled payments on the Loans and Existing Indebtedness, all as determined on
a consolidated basis for such Person and its Subsidiaries in accordance with
GAAP.
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"Consolidated Interest Expense" of any Person shall mean, for any
period, total interest expense (including that attributable to Capital Leases in
accordance with GAAP) of such Person and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of such Person and its
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Agreements.
"Consolidated Net Income" of any Person (a "Designated Person") shall
mean for any period, the net income (or loss) of such Designated Person and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP, provided that there shall
be (A) deducted, in the case of the Borrower, any Dividends paid to Holdings and
(B) excluded (i) the income (or loss) of any Person (other than Subsidiaries of
the Designated Person) in which any other Person (other than the Designated
Person or any of its Subsidiaries) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to the Designated
Person or any of its Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of the Designated Person or is merged into or consolidated with the Designated
Person or any of its Subsidiaries or that Person's assets are acquired by the
Designated Person or any of its Subsidiaries, (iii) the income of any Subsidiary
of the Designated Person to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) Transaction Expenses and (v) compensation
expense resulting from the issuance of capital stock, stock options or stock
appreciation rights issued to employees, including officers, of the Designated
Person or any Subsidiary, or the exercise of such options or rights, in each
case to the extent the obligation (if any) associated therewith is not expected
to be settled by the payment of cash by the Designated Person or any Affiliate
of the Designated Person and compensation expense resulting from the repurchase
of any such capital stock, options and rights.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intending to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof, provided however, that
the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection
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in the ordinary course of business. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Notes, the Security
Documents and any documents executed in connection therewith.
"Credit Event" shall mean the making of a Loan.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Discount Note Indenture" shall mean the Indenture entered into by and
between Holdings and United States Trust Company of New York, as trustee
thereunder, with respect to the Discount Notes as in effect on the Effective
Date and as the same may be modified, amended or supplemented from time to time
in accordance with the terms hereof and thereof.
"Discount Notes" shall mean the 14% Series A and Series B Senior
Secured Discount Notes due 2004 issued by Holdings under the Discount Note
Indenture and as the same may be supplemented, amended or modified from time to
time in accordance with the terms hereof and thereof.
"Dividends" shall have the meaning provided in Section 8.09.
"Effective Date" shall have the meaning provided in Section 12.10.
"Employment Agreements" shall have the meaning provided in Section
5.06(v).
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demand letters, claims, liens, notices of noncompliance
or violation, investigations (other than internal reports prepared by the
Borrower or any of its Subsidiaries solely in the ordinary course of such
Person's business and not in response to any third party action or request of
any kind) or proceedings relating to any Environmental Law or any permit issued,
or any written approval given, under any such Environmental Law (hereafter,
"Claims"), including, without limitation, (a) any and all Claims by governmental
or regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party
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seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged injury
or threat of injury to health, safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guide, policy and rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or Hazardous Materials, including, without limitation, CERCLA;
RCRA; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section
1251 ET SEQ.; the Toxic Substances Control Act, 15 U.S.C. Section 7401 ET SEQ.;
the Clean Air Act, 42 U.S.C. Section 7401 ET SEQ.; the Safe Drinking Water Act,
42 U.S.C. Section 3808 ET SEQ.; the Oil Pollution Act of 1990, 33 U.S.C. Section
2701 ET SEQ. and any applicable state and local or foreign counterparts or
equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the Initial Borrowing Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Holdings, the Borrower or a Subsidiary would be
deemed to be a "single employer" within the meaning of Sections 414(b), (c), (m)
and (o) of the Code.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period for
a Eurodollar Loan, (i) the offered quotation to first-class banks in the
interbank Eurodollar market by the Agent for dollar deposits of amounts in same
day funds comparable to the outstanding principal amount of the Eurodollar Loan
of the Agent for which an interest rate is then being determined with maturities
comparable to the Interest Period to be applicable to such Eurodollar Loan,
determined as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period divided (and rounded
upward to the next whole multiple of 1/16 of 1%) by (ii) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements (including
without limitation any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in respect
of Eurocurrency liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
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"Excess Cash Flow" shall mean, for any fiscal year, the remainder of
(i) the sum of (x) Adjusted Cash Flow for such fiscal year and (y) the decrease,
if any, in Working Capital from the first day to the last day of such fiscal
year, plus (ii) to the extent not included in (i) above, any amounts received by
the Borrower and its Subsidiaries in settlement of, or in payment of any
judgments resulting from, actions, suits or proceedings with respect to the
Borrower and/or its Subsidiaries from the first day to the last day of such
fiscal year, plus (iii) to the extent not included in (i) above, any amounts
received by the Borrower and/or its Subsidiaries in connection with the
repayment or redemption of any long-term promissory notes and/or preferred stock
of other Persons held by them, minus (iv) the sum of (x) the amount of
Consolidated Capital Expenditures (except to the extent (x) financed through the
incurrence of Indebtedness other than Revolving Loans or (y) made pursuant to
Section 8.05(c)) made during such fiscal year and (y) the increase, if any, in
Working Capital from the first day to the last day of such fiscal year and (z)
any repayments or prepayments of the principal amount of (I) Existing
Indebtedness (other than Purchases of Senior Notes made as provided by Section
8.08(a)) or (II) Term Loans and, if after the AR Termination Date, AR Loans,
except prepayments of the principal amount of Loans made pursuant to Sections
4.02(A)(c), (d) or (e).
"Existing Indebtedness" shall have the meaning provided in Section
6.21.
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.06(ii).
"Existing UOH Stockholders" shall mean the stockholders of Holdings on
the Initial Borrowing Date after giving effect to the purchase by Kelso of
Holdings' capital stock as contemplated by Section 5.10.
"Expiration Date" shall mean July 15, 1996.
"Facility" shall mean any of the credit facilities established under
this Agreement, I.E., the Term Facility or the AR Facility.
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three Federal Funds brokers of
recognized standing selected by the Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
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"Final Maturity Date" shall mean March 31, 2003.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 8, including defined terms as used therein, are subject (to the
extent provided therein) to Section 12.07(a).
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that
contained, electric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous waste," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any Environmental Law.
"Holdings" shall mean Universal Outdoor Holdings, Inc., a Delaware
corporation.
"Holdings Leverage Ratio" shall mean, at any Measurement Date, the
ratio of (x) Consolidated Debt of Holdings on such date to (y) Adjusted EBITDA
of Holdings for the 12 month period (taken as one accounting period) ending on
such date.
"Indebtedness" of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (iii) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such indebtedness has been assumed, (v) all Capitalized Lease Obligations
of such Person, (vi) all obligations of such Person to pay a specified purchase
price for goods or services whether or not delivered or accepted, I.E.,
take-or-pay and similar obligations, (vii) all net obligations of such Person
under Interest Rate Agreements and (viii) all Contingent Obligations of such
Person, (other than Contingent Obligations arising from the guaranty by such
Person of the obligations of the Borrower and/or its Subsidiaries to the extent
such guaranteed obligations do not constitute Indebtedness and are otherwise
permitted hereunder) provided that Indebtedness shall not include trade payables
and accrued expenses, in each case arising in the ordinary course of business.
"Initial Borrowing Date" shall mean the date upon which the initial
incurrence of Loans occurs.
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"Interest Period" with respect to any Loan shall mean the interest
period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap agreement,
any interest rate cap agreement, any interest rate collar agreement or other
similar agreement or arrangement designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates.
"Investment" shall mean, with respect to any Person, all investments
by such Person in other Persons (including Affiliates and Subsidiaries) in the
forms of loans, guarantees, advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Capital Stock or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"Kelso" shall mean Kelso & Company, L.P., a Delaware limited
partnership doing business as Kelso & Company.
"Kelso Designees" shall mean William A. Marquard, John F.
McGillicuddy, David M. Roderick, John Rutledge IRA, Michael Rapoport, Patricia
Hetter Kelso and George L. Shinn.
"LaSalle" shall mean LaSalle National Bank.
"LaSalle Loan Agreement" shall mean the Amended and Restated Loan and
Security Agreement made as of March 22, 1995 by and between the Borrower and
LaSalle, as in effect on the Initial Borrowing Date immediately prior to
termination thereof.
"Leasehold" of any Person means all of the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"Loan" shall have the meaning provided in Section 1.01.
"Management Agreements" shall have the meaning provided in Section
5.06 (iv).
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"Management Investors" means the "Management Investors" party to the
Stock Purchase Agreement.
"Margin Reduction Discount" shall mean zero, provided that the Margin
Reduction Discount shall be increased to 1/2 of 1%, 1% or 1 1/2%, as the case
may be, as specified in clauses (i), (ii) or (iii) below, at any time after the
Initial Borrowing Date, when, and for so long as, the ratio set forth in such
clause has been satisfied as at the Relevant Determination Date:
(i) the Margin Reduction Discount shall be 1/2 of 1% in the event
that as at the Relevant Determination Date the Modified Holdings
Leverage Ratio is equal to or greater than 4.0 to 1 but less than
5.0 to 1;
(ii) the Margin Reduction Discount shall be 1% in the event that as at
the Relevant Determination Date the Modified Holdings Leverage
Ratio is equal to or greater than 3.0 to 1 but less than 4.0 to
1; or
(iii)the Margin Reduction Discount shall be 1 1/2% in the event that
as the Relevant Determination Date the Modified Holdings Leverage
Ratio is less than 3.0 to 1.
The Modified Holdings Leverage Ratio shall be determined (x) for the last day of
a fiscal month, quarter or year, by delivery of an officer's certificate of the
Borrower to the Banks pursuant to Section 7.01(e)(i) and (y) for the date of the
incurrence of Consolidated Debt after delivery of the officer's certificate
referred to in clause (x), by delivery of an officer's certificate of the
Borrower to the Banks pursuant to Section 7.01(e)(ii), each of which
certificates shall set forth the calculation of the Modified Holdings Leverage
Ratio. The Margin Reduction Discount so determined shall apply, except as set
forth below, from five Business Days after the date on which such officer's
certificate is delivered to the Agent to the earlier of (x) the date on which
the next certificate is delivered to the Agent pursuant to Section 7.01(e)(i) or
(ii) and (y) the 30th day following the end of the fiscal month in which such
first certificate was delivered to the Agent pursuant to Section 7.01(e)(i).
Notwithstanding anything to the contrary contained above, the Margin Reduction
Discount shall be zero (x) if no officer's certificate has been delivered to the
Banks pursuant to Section 7.01(e) (i) which sets forth the Modified Holdings
Leverage Ratio for the Relevant Determination Date or the financial statements
upon which any such calculations are based have not been delivered, until such a
certificate and/or financial statements are delivered and (y) at all times when
there shall exist a violation of Section 9.01 or an Event of Default. It is
understood and agreed that the Margin Reduction Discount as provided above shall
in no event be cumulative and only the Margin Reduction Discount available
pursuant to either clause (i), (ii) or (iii), if any, contained in this
definition shall be applicable.
"Margin Stock" shall have the meaning provided in Regulation U.
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"Material Adverse Effect" shall mean a material adverse effect on the
business, property, assets, liabilities, operations, condition (financial or
otherwise) or prospects of (x) Holdings and its Subsidiaries taken as a whole,
(y) the Borrower and its Subsidiaries taken as a whole and/or (z) with respect
to any reference to such term in Section 5, NOA and its Subsidiaries taken as a
whole.
"Measurement Date" shall mean (x) the last day of each fiscal quarter
of the Borrower and (y) the last day of the last month ended prior to the date
of a Tested Borrowing.
"Minimum Borrowing Amount" shall mean (i) for Loans maintained as Base
Rate Loans, $500,000 and (ii) for Loans maintained as Eurodollar Loans,
$1,000,000.
"Modified Available Amount" shall mean, with respect to any Dividend
to be paid under Section 8.09(a)(v) (and as determined prior to Holdings making
any Purchase of Discount Notes with the proceeds of such Dividend), (x) if the
Holdings Leverage Ratio is less than 5.00 to 1.0 at the time, the Available ECF
Amount at such time plus (y) the Available Equity Amount at such time less the
portion thereof attributable to proceeds of equity issued by Holdings.
"Modified Holdings Leverage Ratio" shall mean, with respect to any
Relevant Measurement Date, the Holdings Leverage Ratio determined as of such
date, modified by the inclusion in the computation thereof of any incremental
Consolidated Debt of Holdings incurred after such Relevant Measurement Date and
prior to the delivery of an officer's certificate pursuant to Section 7.01(e)(i)
in respect of the next Relevant Measurement Date.
"Mortgage" shall have the meaning provided in Section 5.12(d)(i).
"Mortgage Policies" shall have the meaning provided in Section
7.10(e).
"Mortgaged Properties" shall mean and include the Real Properties
owned by the Borrower and listed on Annex V.
"Naegele" shall mean Naegele Outdoor Advertising Company, a Delaware
corporation.
"Net Cash Proceeds" shall mean, with respect to any Asset Sale, the
Cash Proceeds resulting therefrom net of expenses of sale or recovery (including
payment of principal, premium and interest of Indebtedness secured by the assets
which are the subject of the Asset Sale and required to be, and which is, repaid
under the terms thereof as a result of such Asset Sale), and incremental taxes
paid or payable as a result thereof.
"NOA" shall mean NOA Holding Company, a Delaware corporation.
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"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Note" shall mean and include each Term Note and each AR Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Agent at 130 Liberty
Street, New York, New York or such other office as the Agent may designate to
the Borrower from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
the Agent, the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Payment Office" shall mean the office of the Agent at 130 Liberty
Street, New York, New York or such other office as the Agent may designate to
the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall mean any acquisition (including through
a stock acquisition) of property or assets of a nature or type, or which will be
used in a business, permitted to be held or engaged in by Section 8.01 (x) to
the extent that the aggregate amount expended for all such acquisitions after
the Initial Borrowing Date does not exceed $5,000,000 or (y) consented to in
writing by the Super-Majority Banks.
"Permitted Asset Sale" shall mean an Asset Sale (x) permitted by the
expressed language of Section 8.02 (and not by the parenthetical in the lead in
paragraph of Section 8) and (y) resulting from a casualty or taking of assets of
the Borrower or any Subsidiary.
"Permitted Encumbrances" shall mean, with respect to the Mortgaged
Property, such exceptions to title as are set forth in the title insurance
policy or title commitment delivered with respect thereto, all of which
exceptions must be reasonably acceptable to the Agent.
"Permitted Holders" means Kelso and its Affiliates, the Kelso
Designees, the Management Investors, any employee stock ownership plan
established by the Borrower for the benefit of the employees of the Borrower or
any Subsidiary and their Permitted Transferees.
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"Permitted Investments" shall mean (a) cash and Cash Equivalents, (b)
Investments in Naegele, (c) Investments in all other Subsidiaries up to
$1,000,000 in the aggregate, including Investments in a Person that becomes a
Subsidiary of the Borrower immediately after such Investment, provided (i) an
Event of Default has not occurred and is continuing and will not occur as a
result of, in connection with or after giving effect to such Investment and (ii)
such Person, at the time of such Investment or at the time such Person becomes a
Subsidiary, engages exclusively in the business permitted to be engaged in by
Borrower and its Subsidiaries pursuant to Section 8.01, (c) loans and advances
of money in the ordinary course of business and consistent with past practice to
officers and employees of Borrower or any of its Subsidiaries, (d) investments
in receivables owing to the Borrower and/or any Subsidiary, if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms, and (e) investments (including debt
obligations) received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations of, and
other disputes with, customers and suppliers arising in the ordinary course of
business.
"Permitted Liens" shall mean Liens described in clauses (a), (b) and
(d) of Section 8.03.
"Permitted Transferees" means (i) in the case of Kelso, (A) any
Affiliate thereof (other than any corporation or other Person (except for any
corporation or other Person engaged in a business similar, complementary or
related to the nature or type of the business of Holdings and its Subsidiaries)
controlled by, or any investment fund (other than Kelso Investment Associates V,
L.P. or any investment fund that is solely comprised of current and former
professionals of Kelso) managed by, Kelso), (B) any managing director, general
partner, limited partner, director, officer or employee of Kelso or any
Affiliate thereof (collectively, "Kelso Associates"), (C) the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any Kelso
Associate or Kelso Designee and (D) any trust, the beneficiaries of which, or a
corporation or partnership, the stockholders or partners of which, include only
a Kelso Associate or Kelso Designee, his spouse, parents, siblings, or direct
lineal descendants, and (ii) in the case of any Management Investors, (A) his
executor, administrator, testamentary trustee, legatee or beneficiaries, (B) his
spouse, parents, siblings, members of his or her immediate family (including
adopted children) and/or direct lineal descendants or (C) a trust, the
beneficiaries of which, or a corporation or partnership, the stockholders or
partners of which, include only the Management Investor, as the case may be, and
his spouse, parents, siblings, members of his or her immediate family (including
adopted children) and/or direct lineal descendants.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
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"Plan" shall mean any multi-employer or single-employer plan as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of) Holdings, the Borrower, a
Subsidiary or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which Holdings, the Borrower, a
Subsidiary, or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"Pledge Agreements" shall mean the Borrower Pledge Agreement and the
UOH Pledge Agreement.
"Pledged Securities" shall mean all the Pledged Securities as defined
in the relevant Pledge Agreement.
"Prime Lending Rate" shall mean the rate which Bankers Trust Company
announces from time to time as its prime lending rate, the Prime Lending Rate to
change when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Bankers Trust Company may make commercial
loans or other loans at rates of interest at, above or below the Prime Lending
Rate.
"Purchase" shall mean repay, redeem, purchase, repurchase or otherwise
acquire for value.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 ET SEQ.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Reinvestment Assets" shall mean any assets to be employed in the
business of the Borrower and its Subsidiaries as permitted by Section 8.01.
"Reinvestment Election" shall have the meaning provided in Section
4.02(A)(c).
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"Reinvestment Notice" shall mean a written notice signed by an
Authorized Officer of the Borrower stating that the Borrower, in good faith,
intends and expects to use all or a specified portion of the Net Cash Proceeds
of a Permitted Asset Sale to purchase, construct or otherwise acquire
Reinvestment Assets.
"Reinvestment Prepayment Amount" shall mean, with respect to any
Reinvestment Election, the amount, if any, on the Reinvestment Prepayment Date
relating thereto by which (a) the Anticipated Reinvestment Amount in respect of
such Reinvestment Election exceeds (b) the aggregate amount thereof expended by
the Borrower and its Subsidiaries to acquire Reinvestment Assets.
"Reinvestment Prepayment Date" shall mean, with respect to any
Reinvestment Election, the earliest of (i) the date, if any, upon which the
Agent, on behalf of the Required Banks, shall have delivered a written
termination notice to the Borrower, provided that such notice may only be given
while an Event of Default exists, (ii) the date occurring 270 days after such
Reinvestment Election and (iii) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to, proceed with the purchase,
construction or other acquisition of Reinvestment Assets with the related
Anticipated Reinvestment Amount.
"Relevant Determination Date" shall mean, at any time, (x) the last
day of the then most recently ended fiscal month, quarter or year of Holdings
with respect to which an officer's certificate has been, or is required to be,
delivered to the Banks pursuant to Section 7.01(e)(i) or (y) if the Margin
Reduction Discount is then greater than zero, the last date subsequent to the
date specified in clause (x) on which any Consolidated Debt of Holdings and its
Subsidiaries has been incurred.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Banks" shall mean Non-Defaulting Banks whose outstanding
Term Loans and AR Commitments (or, if after the AR Termination Date, outstanding
AR Loans) constitute greater than 50% of the sum of (i) the total outstanding
Term Loans of Non-Defaulting Banks and (ii) the Adjusted Total AR Commitment
(or, if after the AR Termination Date, the total outstanding AR Loans of
Non-Defaulting Banks).
"Revolving Facility Termination Date" shall mean the date on which the
Total Revolving Commitment under and as defined in the RF Credit Agreement has
been terminated, whether by action of the Borrower, the Agent, in accordance
with the expressed terms of the RF Credit Agreement or otherwise.
"Revolving Loans" shall mean the Revolving Loans under and as defined
in the RF Credit Agreement.
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"RF Bank" shall mean at any time a financial institution that is then
a Bank under and as defined in the RF Credit Agreement.
"RF Credit Agreement" shall mean the Revolving Credit Agreement dated
as of the date hereof among the Borrower, the Banks, LaSalle as Co-Agent BTCo as
Agent providing for the revolving credit specified therein, as in effect on the
Initial Borrowing Date hereunder and as the same may be modified, amended or
supplemented in accordance with the terms thereof to the extent such amendment
is permitted hereunder.
"Scheduled Repayment" shall have the meaning provided in Section
4.02(A)(b).
"SEC" shall have the meaning provided in Section 7.01(h).
"SEC Regulation D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"Security Agreement" shall have the meaning provided in Section
5.12(b).
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Documents" shall mean each Pledge Agreement, the Security
Agreement, each Mortgage and each Additional Mortgage, if any.
"Senior Note Documents" shall mean and include each of the documents,
instruments (including the Senior Notes) and other agreements entered into by
the Borrower (including, without limitation, the Senior Note Indenture) relating
to the issuance by the Borrower of the Senior Notes, as in effect on the
Effective Date and as the same may be supplemented, amended or modified from
time to time in accordance with the terms hereof and thereof.
"Senior Note Indenture" shall mean the Indenture entered into by and
between the Borrower and United States Trust Company of New York, as trustee
thereunder, with respect to the Senior Notes as in effect on the Effective Date
and as the same may be modified, amended or supplemented from time to time in
accordance with the terms hereof and thereof.
"Senior Notes" shall mean the 11% Senior Notes due 2003 issued by the
Borrower under the Senior Note Indenture, as in effect on the Effective Date and
as the same may be supplemented, amended or modified from time to time in
accordance with the terms thereof and hereof.
"Shareholders' Agreements" shall have the meaning provided in Section
5.06(iii).
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"Stock Purchase Agreement" shall mean the Stock Purchase Agreement,
dated as of April 5, 1996, between Holdings, Kelso Investment Associates V, L.P.
and Kelso Equity Partners V, L.P., as in effect on the Initial Borrowing Date as
the same may be amended, modified or supplemented from time to time pursuant to
the terms hereof and thereof.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Super-Majority Banks" shall mean the Non-Defaulting Banks which would
constitute the Required Banks if the reference to "50%" in the definition of
Required Banks were to read "66 2/3%."
"Syndication Date" shall mean the earlier of (x) the date which is 90
days after the Effective Date and (y) the date upon which the Agent determines
in its sole discretion (and notifies the Borrower) that the primary syndication
(and the resulting addition of institutions as Banks pursuant to Section 12.04)
has been completed.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement dated as
of November 18, 1993 between the Borrower and Holdings in the form delivered to
the Banks prior to the Initial Borrowing Date and as the same may be modified
with the consent of the Required Banks.
"Term Commitment" shall mean, with respect to each Bank, the amount,
if any, set forth opposite such Bank's name on Annex I hereto directly below the
column entitled "Term Commitment" as the same may be reduced or terminated
pursuant to Section 3.03.
"Term Facility" shall mean the Facility evidenced by the Total Term
Commitment.
"Term Loan" shall have the meaning provided in Section 1.01(a).
"Term Note" shall have the meaning provided in Section 1.05(a)(i).
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"Tested Borrowing" shall mean any incurrence of AR Loans after the
Initial Borrowing Date in which the aggregate amount of AR Loans incurred, when
added to the aggregate amount of AR Loans and Revolving Loans incurred during
the immediately preceding 30 day period (to the extent (x) incurred after the
Initial Borrowing Date, (y) still outstanding and (z) not included in
establishing an earlier Tested Borrowing), equal or exceed $1,000,000.
"Total AR Commitment" shall mean the sum of the AR Commitments of each
of the Banks.
"Total Commitment" shall mean the sum of the Total Term Commitment and
the Total AR Commitment.
"Total Term Commitment" shall mean the sum of the Term Commitments of
each of the Banks.
"Transaction" shall mean and include (i) the Acquisition, (ii) the
purchase by Kelso of the capital stock of Holdings pursuant to the UOH-Kelso
Agreements, (iii) the entering into and borrowing under the RF Credit Agreement
and (iv) the entering into and borrowing under this Agreement.
"Transaction Documents" shall mean the Acquisition Documents, the
UOH-Kelso Agreements, the Credit Documents and the RF Credit Agreement.
"Transaction Expenses" shall mean all fees and expenses incurred in
connection with, and payable prior to or substantially concurrently with the
closing of, the Transaction and including all fees paid to any of the Banks and
the Agent hereunder, fees paid to Kelso or its Affiliates permitted hereunder;
attorney's fees, accountants' fees, placement agents' fees, discounts and
commissions and brokerage, and consultant fees. Transaction Expenses shall
include the amortization of any such fees and expenses that are capitalized and
not classified as an expense on the date incurred.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, I.E., a Base Rate Loan or Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year determined in accordance
with Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets thereof,
determined in accordance with Section 412 of the Code.
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"UOH-Kelso Agreements" shall mean the Stock Purchase Agreement and all
other documents entered into or delivered in connection with the Stock Purchase
Agreement.
"UOH Pledge Agreement" shall have the meaning provided in Section
5.12(c).
"Working Capital" shall mean the excess of Consolidated Current Assets
over Consolidated Current Liabilities.
"Written" or "in writing" shall mean any form of written communication
or a communication by means of telex, facsimile transmission, telegraph or
cable.
SECTION 11. THE AGENT.
1.111 APPOINTMENT. The Banks hereby designate Bankers Trust Company
as Agent (for purposes of this Section 11, the term "Agent" shall include BTCo
in its capacity as Collateral Agent pursuant to the Security Documents) to act
as specified herein and in the other Credit Documents. Each Bank hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the Agent to take such action on
its behalf under the provisions of this Agreement, the other Credit Documents
and any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The Agent
may perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates. The Co-Agent shall have no duties
or liabilities in acting in such capacity hereunder.
1.112 NATURE OF DUTIES. The Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement and the
Security Documents. Neither the Agent nor any of its respective officers,
directors, agents, employees or affiliates shall be liable for any action taken
or omitted by it or them hereunder or under any other Credit Document or in
connection herewith or therewith, unless caused by its or their gross negligence
or willful misconduct. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Agreement
or any other Credit Document a fiduciary relationship in respect of any Bank or
the holder of any Note; and nothing in this Agreement or any other Credit
Document, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement or any other
Credit Document except as expressly set forth herein or therein.
1.113 LACK OF RELIANCE ON THE AGENT. Independently and without
reliance upon the Agent, each Bank and the holder of each Note, to the extent it
deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of Holdings, the Borrower
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and
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(ii) its own appraisal of the creditworthiness of Holdings, the Borrower and its
Subsidiaries and, except as expressly provided in this Agreement, the Agent
shall not have any duty or responsibility, either initially or on a continuing
basis, to provide any Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. The Agent shall not be
responsible to any Bank or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower and its Subsidiaries or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any other Credit
Document, or the financial condition of Holdings, the Borrower and its
Subsidiaries or the existence or possible existence of any Default or Event of
Default.
1.114 CERTAIN RIGHTS OF THE AGENT. If the Agent shall request
instructions from the Required Banks (or, where applicable, the Super-Majority
Banks) with respect to any act or action (including failure to act) in
connection with this Agreement or any other Credit Document, the Agent shall be
entitled to refrain from such act or taking such action unless and until the
Agent shall have received instructions from the Required Banks (or, where
applicable, the Super-Majority Banks); and the Agent shall not incur liability
to any Person by reason of so refraining. Without limiting the foregoing,
neither any Bank nor the holder of any Note shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder or under any other Credit Document in accordance with the
instructions of the Required Banks (or, where applicable, the Super-Majority
Banks).
1.115 RELIANCE. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Agent believed to be the proper Person, and, with respect to
all legal matters pertaining to this Agreement and any other Credit Document and
its duties hereunder and thereunder, upon advice of counsel selected by the
Agent.
1.116 INDEMNIFICATION. To the extent the Agent is not reimbursed and
indemnified by the Borrower, the Banks will reimburse and indemnify the Agent,
in proportion to their respective Loans and Commitments as used in determining
the Required Banks, for and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Agent in performing its respective duties hereunder
or under any other Credit Document, in any way relating to or arising out of
this Agreement or any other Credit Document; provided that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct.
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1.117 THE AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its
obligation to make Loans under this Agreement, the Agent shall have the rights
and powers specified herein for a "Bank" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Banks," "Required Banks," "Super-Majority Banks," "holders of Notes" or
any similar terms shall, unless the context clearly otherwise indicates, include
the Agent in its individual capacity. The Agent may accept deposits from, lend
money to, and generally engage in any kind of banking, trust or other business
with the Borrower or any Affiliate of the Borrower as if it were not performing
the duties specified herein, and may accept fees and other consideration from
the Borrower for services in connection with this Agreement and otherwise
without having to account for the same to the Banks.
1.118 HOLDERS. The Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a written notice of
the assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or indorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.
1.119 RESIGNATION BY THE AGENT. (a) The Agent may resign from the
performance of all its functions and duties hereunder and/or under the other
Credit Documents at any time by giving 15 Business Days' prior written notice to
the Borrower and the Banks. Such resignation shall take effect upon the
appointment of a successor Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall appoint a
successor Agent hereunder or thereunder who shall be the Co-Agent or such other
commercial bank or trust company as is reasonably acceptable to the Borrower.
(c) If a successor Agent shall not have been so appointed within such
15 Business Day period, the Agent, with the consent of the Borrower, shall then
appoint a successor Agent who shall serve as Agent hereunder or thereunder until
such time, if any, as the Banks appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant to clause (b)
or (c) above by the 20th Business Day after the date such notice of resignation
was given by the Agent, the Agent's resignation shall become effective and the
Required Banks shall thereafter perform all the duties of the Agent hereunder
and/or under any other Credit Document until such time, if any, as the Banks
appoint a successor Agent as provided above.
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SECTION 12. MISCELLANEOUS.
1.121 PAYMENT OF EXPENSES, ETC. The Borrower agrees to: (i) whether
or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agent and the Co-Agent in connection
with the negotiation, preparation, execution and delivery of the Credit
Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees and disbursements of their respective counsel) and of the
Agent, the Co-Agent and each of the Banks in connection with the enforcement of
the Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and disbursements of counsel
for the Agent, the Co-Agent and for each of the Banks); (ii) pay and hold each
of the Banks harmless from and against any and all present and future stamp and
other similar taxes with respect to the foregoing matters and save each of the
Banks harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Bank) to pay such taxes; and (iii) indemnify each Bank (including in its
capacity as the Agent or Co-Agent), its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of, (a)
any investigation, litigation or other proceeding (whether or not any Bank is a
party thereto) related to the entering into and/or performance of any
Transaction Document or the use of the proceeds of any Loans hereunder or the
Transaction or the consummation of any transactions contemplated in any Credit
Document, or (b) the actual or alleged presence of Hazardous Materials in the
air, surface water or groundwater or on the surface or subsurface of any Real
Property owned or at any time operated by the Borrower or any of its
Subsidiaries, the release, generation, storage, transportation, handling or
disposal of Hazardous Materials at any location, whether or not owned or
operated by the Borrower or any of its Subsidiaries, the non-compliance of any
Real Property with foreign, federal, state and local laws, regulations, and
ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim asserted against the Borrower, any of its
Subsidiaries or any Real Property owned or at any time operated by the Borrower
or any of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
1.122 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, if an Event of Default then exists, each Bank is hereby authorized
at any time or from time to time, without presentment, demand, protest or other
notice of any kind to the Borrower or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by such Bank (including without limitation by branches and agencies of
such Bank wherever
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located) to or for the credit or the account of the Borrower against and on
account of the Obligations and liabilities of the Borrower to such Bank under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Bank pursuant to
Section 12.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Bank shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
1.123 NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to the Borrower, at
the address specified opposite its signature below; if to any Bank, at its
address specified for such Bank on Annex II hereto; or, at such other address as
shall be designated by any party in a written notice to the other parties
hereto. All such notices and communications shall be mailed, telegraphed,
telexed, telecopied, or cabled or sent by overnight courier, and shall be
effective when received.
1.124 BENEFIT OF AGREEMENT. (a) This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto, provided that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Banks. Each Bank may at any time grant participations in any of
its rights hereunder or under any of the Notes to another financial institution,
provided that in the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation, except that
the participant shall be entitled to the benefits of Sections 1.10 and 4.04 of
this Agreement to the extent that such Bank would be entitled to such benefits
if the participation had not been entered into or sold, and, provided further
that no Bank shall transfer, grant or assign any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating (it being understood that any waiver of
the application of any prepayment or the method of any application of any
prepayment to, the amortization of the Loans shall not constitute an extension
of the final maturity date), or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating interest
in any Commitment over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default or of a mandatory reduction in
the Total Commitment, or a mandatory prepayment, shall not constitute a change
in the terms of any Commitment), (ii) release all or substantially all of the
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Collateral or (iii) consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement or any other Credit Document.
(b) Notwithstanding the foregoing, (x) any Bank may assign all or a
portion of its outstanding Term Loans and/or AR Loans and/or AR Commitment (or,
if prior to the Initial Borrowing Date, its Term Commitment) and its rights and
obligations hereunder to another Bank, and (y) with the consent of the Agent
and, to the extent such consent shall not be unreasonably withheld, the
Borrower, any Bank may assign all or a portion of its outstanding Term Loans
and/or AR Loans and/or AR Commitment and its rights and obligations hereunder to
one or more commercial banks or other financial institutions (including one or
more Banks), provided that all assignments hereunder must be pro rata between
the Term Loans on one hand and the AR Loans and AR Commitments on the other
hand. No assignment pursuant to the immediately preceding sentence shall to the
extent such assignment represents an assignment to an institution other than one
or more Banks hereunder, be in an aggregate amount less than $5,000,000 unless
the entire Loans and Commitment of the assigning Bank are so assigned. If any
Bank so sells or assigns all or a part of its rights hereunder or under the
Notes, any reference in this Agreement or the Notes to such assigning Bank shall
thereafter refer to such Bank and to the respective assignee to the extent of
their respective interests and the respective assignee shall have, to the extent
of such assignment (unless otherwise provided therein), the same rights and
benefits as it would if it were such assigning Bank. Each assignment pursuant
to this Section 12.04(b) shall be effected by the assigning Bank and the
assignee Bank executing an Assignment Agreement substantially in the form of
Exhibit L (appropriately completed). In the event of any such assignment (x) to
a commercial bank or other financial institution not previously a Bank
hereunder, either the assigning or the assignee Bank shall pay to the Agent a
nonrefundable assignment fee of $3,500 (PROVIDED, that in the event of
simultaneous assignments relating to this Agreement and the RF Credit Agreement,
the fees for such assignments shall total $3,500) and (y) to a Bank, either the
assigning or assignee Bank shall pay to Agent a nonrefundable assignment fee of
$2,000 (PROVIDED, that in the event of simultaneous assignments relating to this
Agreement and the RF Credit Agreement, the fees for such assignments shall total
$2,000), and at the time of any assignment pursuant to this Section 12.04(b),
(i) Annex I shall be deemed to be amended to reflect the Commitment of the
respective assignee (which shall result in a direct reduction to the Commitment
of the assigning Bank) and of the other Banks, and (ii) if any such assignment
occurs after the Initial Borrowing Date, the Borrower will issue new Notes to
the respective assignee and to the assigning Bank in conformity with the
requirements of Section 1.05. Each Bank and the Borrower agree to execute such
documents (including without limitation amendments to this Agreement and the
other Credit Documents) as shall be necessary to effect the foregoing. Nothing
in this clause (b) shall prevent or prohibit any Bank from pledging its Notes or
Loans to a Federal Reserve Bank in support of borrowings made by such Bank from
such Federal Reserve Bank. Notwithstanding any of the foregoing provisions of
this Section 12.04, no assignment may be made hereunder unless a concurrent
assignment is made by the assigning Bank under the RF Credit Agreement of a
percentage of its Revolving Commitment thereunder equal to the percentage of its
Loans and Commitment being assigned by it hereunder.
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(c) Notwithstanding any other provisions of this Section 12.04, no
transfer or assignment of the interests or obligations of any Bank hereunder or
any grant of participation therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration statement
with the SEC or to qualify the Loans under the "Blue Sky" laws of any State.
(d) Each Bank initially party to this Agreement hereby represents,
and each Person that becomes a Bank pursuant to an assignment permitted by this
Section 12 will, upon its becoming party to this Agreement, represent that it is
a commercial lender, other financial institution or other "accredited" investor
(as defined in SEC Regulation D) which makes loans in the ordinary course of its
business and that it will make or acquire Loans for its own account in the
ordinary course of such business, provided that subject to the preceding clauses
(a) and (b), the disposition of any promissory notes or other evidences of or
interests in Indebtedness held by such Bank shall at all times be within its
exclusive control.
1.125 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Borrower and the Agent or any Bank shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which the Agent or any Bank would
otherwise have. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Agent or the
Banks to any other or further action in any circumstances without notice or
demand.
1.126 PAYMENTS PRO RATA. (a) The Agent agrees that promptly after
its receipt of each payment from or on behalf of the Borrower in respect of any
Obligations hereunder, it shall distribute such payment to the Banks (other than
any Bank that has expressly waived its right to receive its pro rata share
thereof) PRO RATA based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such Obligation
then owed and due to all of the Banks immediately prior to such receipt, then
such Bank receiving such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the Obligations to such Banks in
such amount as shall result in a proportional participation by all of the Banks
in
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such amount, provided that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 12.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
1.127 CALCULATIONS; COMPUTATIONS. (a) The financial statements to
be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Banks), provided that (x) except as otherwise
specifically provided herein, all computations determining compliance with
Section 8, including definitions used therein, shall utilize accounting
principles and policies in effect at the time of the preparation of, and in
conformity with those used to prepare, the December 31, 1995 historical
financial statements of the Borrower delivered to the Banks pursuant to Section
6.10(b) and (y) that if at any time the computations determining compliance with
Section 8 utilize accounting principles different from those utilized in the
financial statements furnished to the Banks, such financial statements shall be
accompanied by reconciliation work-sheets.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
1.128 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) This Agreement and the other Credit Documents and the rights
and obligations of the parties hereunder and thereunder shall be construed in
accordance with and be governed by the law of the state of New York. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, the Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Borrower further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower located outside New York City and by hand delivery to the Borrower
located within New York City, at its address for notices pursuant to Section
12.03, such service to become effective 30 days after such mailing. The
Borrower hereby irrevocably designates appoints and empowers CT Corporation
System, with offices on the date hereof located at 1633 Broadway, New York, New
York 10019, as its agent for service of process in respect of any such action or
proceeding. Nothing herein shall affect the right of the Agent or any Bank to
serve process in any other manner permitted by law or
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to commence legal proceedings or otherwise proceed against the Borrower in any
other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
(c) Each of the parties to this agreement hereby irrevocably waives
all right to a trial by jury in any action, proceeding or counterclaim arising
out of or relating to this Agreement, the other Credit Documents or the
transactions contemplated hereby or thereby.
1.129 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Agent.
12.10 EFFECTIVENESS. This Agreement shall become effective on the
date (the "Effective Date") on which the Borrower and each of the Banks shall
have signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Agent at the Payment Office of the Agent or, in the
case of the Banks, shall have given to the Agent telephonic (confirmed in
writing), written telex or facsimile transmission notice (actually received) at
such office that the same has been signed and mailed to it.
12.11 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 AMENDMENT OR WAIVER. Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Required Banks, provided that no such
change, waiver, discharge or termination shall, without the consent of each Bank
(other than a Defaulting Bank) affected thereby, (i) extend the Final Maturity
Date or AR Termination Date, as the case may be (it being understood that any
waiver of the application of any prepayment of or the method of application of
any prepayment to the amortization of, the Loans shall not constitute any such
extension), or reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any post-default increase in
interest rates) or Fees thereon, or reduce the principal amount thereof, or
increase the Commitment of any Bank over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
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mandatory reduction in the Total Commitment shall not constitute a change in
the terms of any Commitment of any Bank), (ii) release or permit the release
of all or substantially all of the Collateral except as expressly provided in
the Credit Documents, (iii) amend, modify or waive any provision of this
Section 12.12, (iv) reduce the percentage specified in, or otherwise modify,
the definition of Required Banks or (v) consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Agreement
provided further that no such change, waiver, discharge or termination shall
without the consent of the Super-Majority Banks change directly or indirectly
the definition of Permitted Acquisition or Super-Majority Banks. No
provision of Section 11 may be amended without the consent of the Agent and
to the extent any such amendment would affect the Co-Agent solely in its
capacity as such, the Co-Agent.
12.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 4.04, 11.06 or 12.01 shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 DOMICILE OF LOANS. Each Bank may transfer and carry its Loans
at, to or for the account of any branch office, subsidiary or affiliate of such
Bank, provided that the Borrower shall not be responsible for costs arising
under Section 1.10 or 4.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.12) to the extent not otherwise applicable to
such Bank prior to such transfer.
12.15 CONFIDENTIALITY. Subject to Section 12.04, the Banks shall
hold all non-public information obtained pursuant to the requirements of this
Agreement which has been identified as such by the Borrower in accordance with
its customary procedure for handling confidential information of this nature and
in accordance with safe and sound banking practices and in any event may make
disclosure reasonably required by any BONA FIDE transferee or participant in
connection with the contemplated transfer of any Loans or participation therein
(so long as such transferee or participant agrees to abide by the provisions of
this Section 12.15) or as required or requested by any governmental agency or
representative thereof or pursuant to legal process, provided that, unless
specifically prohibited by applicable law or court order, each Bank shall notify
the Borrower of any request by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Bank by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information, and provided
further that in no event shall any Bank be obligated or required to return any
materials furnished by the Borrower or any Subsidiary.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
Address
- -------
321 N. Clark Street UNIVERSAL OUTDOOR, INC.
Suite 1010 as Borrower
Chicago, Illinois
Attention: Brian T. Clingen
Tel. No.: (312) 644-8673 By: /s/ Brian T. Clingen
--------------------
Fax No.: (312) 644-8071 Name: Brian T. Clingen
Title: Vice President
LA SALLE NATIONAL BANK,
Individually and as Co-Agent
By: /s/ Jeffrey D.Steele
---------------------
Name: Jeffrey D. Steele
Title: Senior Vice President
BANKERS TRUST COMPANY,
Individually and as Agent
By: /s/ Jeff Bennett
------------------
Name: Jeff Bennett
Title: Vice President
