EXHIBIT 10.1(b)(v)
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AMENDMENT NO. 5
TO CREDIT AGREEMENT
AMENDMENT NO. 5 (this "Amendment No. 5"), dated as of July 31, 2000,
under the Credit Agreement dated as of June 30, 1997, by and among OGDEN
CORPORATION, a Delaware corporation (the "Company"), the Signatory Lenders party
thereto (the "Lenders") and THE BANK OF NEW YORK, as Agent (the "Agent"), as
amended by Amendment No. 1 to Credit Agreement, dated as of August 18, 1999,
Amendment No. 2 to Credit Agreement, dated as of December 20, 1999, Amendment
No. 3 to Credit Agreement, dated as of March 31, 2000, and Amendment No. 4 to
Credit Agreement, dated as of June 30, 2000 (the "Credit Agreement").
RECITALS
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I. Capitalized terms used herein which are not herein defined shall
have the respective meanings ascribed thereto in the Credit Agreement.
II. The Company has requested that the Agent and the Lenders amend the
Credit Agreement in certain respects and the Agent and the Lenders have advised
the Company that they are willing to agree to the Company's request, subject to
the terms and conditions set forth herein.
Accordingly, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT
1.1 Additional Definitions. Section 1.1 of the Credit Agreement is
hereby amended by adding the following defined terms in the appropriate
alphabetical order:
"Amendment No. 5": Amendment No. 5 to Credit Agreement, dated as of
July 31, 2000, among the Company, the Lenders party thereto and the
Agent.
"Amendment No. 5 Effective Date": the date on which the conditions set
forth in Section 2.1 of Amendment No. 5 are satisfied.
"Goldman Sachs Fund": the Goldman Sachs Financial Square Funds Prime
Obligation Fund Institutional Shares.
1.2 Section 1.1 of the Credit Agreement is amended by deleting in its
entirety the text of the defined term "Operating Income" and substituting
therefor the following:
"Operating Income" net income before income taxes and minority
interests of the Company and its Subsidiaries from continuing operations
and for the purpose and only for the purpose of testing and determining
compliance with Section 8.9 of this Agreement (a) including income from the
1999 Discontinued Operations, (b) excluding actual gains and losses
resulting from the disposition of Property made pursuant to Section
8.6(iv), (c) excluding amounts not to exceed (1) for each 1999 Write-Off
Event, the corresponding amount, pre-tax, set forth in the second column of
Schedule 2 to Amendment No. 2 to the Credit Agreement, (2) $100,000,000 in
the aggregate for all 1999 Write-Offs Events, (d) excluding write-offs
associated with the Richard Ablon litigation not to exceed $23,000,000 in
the aggregate, (e) excluding gains or losses arising from the 1999
Discontinued Operations and (f) excluding, without duplication, the
write-offs and losses listed under "Corp. and Other" in Schedule D to
Amendment No. 5.
1.3 Section 1.1 of the Credit Agreement is amended by deleting in its
entirety the text of the defined term "Shareholders' Equity" and substituting
therefor the following:
"Shareholders' Equity" all amounts which would, in conformity with
GAAP, be included under shareholders' equity on a Consolidated balance
sheet, plus, for the purpose and only for the purpose of determining and
testing compliance with Section 8.5 of this Agreement, (a) actual losses
when incurred (according to GAAP) in respect of the 1999 Write-Offs, not to
exceed (i) for each 1999 Write-Off Event, the corresponding amount,
after-tax, set forth in the third column of Schedule 2 to Amendment No. 2
to Credit Agreement and (ii) $70,000,000 after-tax, in the aggregate for
all 1999 Write-Offs, (b) actual write-offs or losses when incurred
(according to GAAP) in respect of the 1999 Discontinued Operations, and (c)
the items listed under "Corp. and Other" in Schedule D to Amendment No. 5.
1.4 Liquidity Subfacility Termination Date. The definition of
"Liquidity Subfacility Termination Date" set forth in Section 1.1 of the Credit
Agreement is hereby amended by deleting the reference therein to "July 31, 2000"
and substituting "September 30, 2000" therefor.
1.5 Proceeds Disbursement Request. The definition of "Proceeds
Disbursement Request" set forth in Section 1.1 of the Credit Agreement is hereby
deleted in its entirety and the following substituted therefor:
"Proceeds Disbursement Request": a notice of the Company in the form
of Exhibit A to Amendment No. 4, specifying (i) the aggregate amount of Net
Cash Proceeds requested to be disbursed from the Disbursement Account, (ii)
the requested disbursement date, (iii) the intended use of such Net Cash
Proceeds (including, without limitation, if such Net Cash Proceeds are
intended to be used in connection with the Balaji Project or the Haripur
Project) and (iv) the amount of the Balaji Reserve and the Haripur Reserve,
in each case as of the date of such Proceeds Disbursement Request, and
certifying, representing and warranting that (w) no Default or Event of
Default has occurred and is continuing, (x) such Net Cash Proceeds shall be
used in accordance with Paragraph 2.25(c) (or if such Net Cash Proceeds are
to be used in connection with (1) the Balaji Project, that such Net Cash
Proceeds shall be used to fund obligations of the Company or any of its
Subsidiaries under the instruments, documents and agreements governing the
Balaji Investment as in effect on the Amendment No. 4 Effective Date or to
pay or secure reimbursement obligations of the Company in respect of the
Balaji L/C or (2) the Haripur Project, that such Net Cash Proceeds shall be
used to fund obligations of the Company or any of its Subsidiaries under
the Merita Facility Agreement or the Haripur L/C), and (y) if such Net Cash
Proceeds are to be used in connection with (1) the Balaji Project, after
giving effect to the application of the requested disbursement the
aggregate amount of Investments, Acquisitions and Capital Expenditures made
or committed to be made by the Company and its Subsidiaries in the Balaji
Project does not exceed $37,500,000 or (2) the Haripur Project, after
giving effect to the application of the requested disbursement the
aggregate amount of funds disbursed from the Disbursement Account applied
in connection with the Haripur Project does not exceed $20,346,639.50.
1.6 Projections. The definition of "Projections" set forth in Section
1.1 of the Credit Agreement is hereby deleted in its entirety and the following
substituted therefor:
"Projections": the projections of the Company dated July 18, 2000,
delivered to the Agent and the Lenders and annexed to Amendment No. 5 as
Schedule A.
1.7 Release of Net Cash Proceeds from Disbursement Account. Section
2.25(c) of the Credit Agreement is hereby amended by adding the following at the
end thereof:
All Net Cash Proceeds released from the Disbursement Account shall be
used by the Company in accordance with and for the purposes and in the
amounts set forth in the Projections for each division of the Company
(i.e., Corporate, Services, Aviation, Entertainment or Energy) for the
two month period from August 1, 2000 through September 30, 2000 and
for each month thereafter set forth in the Projections; provided,
however, (i) except as otherwise set forth in this proviso or
permitted by paragraph 8.14 of this Agreement, all Net Cash Proceeds
released from the Disbursement Account used to make Investments and
Acquisitions shall be used for the purposes and in the amounts set
forth in each line item for the two month period from August 1, 2000
through September 30, 2000 and for each month thereafter set forth in
the Projections, (ii) if such Net Cash Proceeds are to be used in
connection with the Balaji Project, such Net Cash Proceeds shall be
used to fund obligations of the Company or any of its Subsidiaries
under the instruments, documents and agreements governing the Balaji
Investment as in effect on the Amendment No. 4 Effective Date or to
pay or secure reimbursement obligations of the Company in respect of
the Balaji L/C, and (iii) if such Net Cash Proceeds are to be used in
connection with the Haripur Project, such Net Cash Proceeds shall be
used to fund obligations of the Company or any of its Subsidiaries
under the Merita Facility Agreement or the Haripur L/C.
1.8 Balaji Reserve. Section 2.25(g) of the Credit Agreement is hereby
amended by deleting the first reference to "$30,000,000" in the first sentence
thereof and substituting "$31,000,000" therefor.
1.9 Disbursement Account and Reserve Account. Section 2.25 of the
Credit Agreement is hereby amended by adding a new paragraph 2.25(i) at the end
thereof to read in its entirety as follows:
"(i) Investment of Disbursement and Reserve Account. At the request of
the Company, any or all amounts from time to time deposited in or credited
to the Disbursement Account and any or all amounts in excess of
$102,000,000 from time to time deposited in or credited to the Reserve
Account may be invested by the Agent in the Goldman Sachs Fund, provided
that such investment shall remain subject to the provisions of this
Agreement. Except as specifically set forth in paragraph 2.25(f), the Agent
shall not be liable for any action taken or omitted or for any loss or
injury resulting from investment in the Goldman Sachs Fund (or any other
investment of any amounts deposited in or credited to the Disbursement
Account or the Reserve Account), including, without limitation, any
liability for any losses or diminution in the value of any amounts invested
in, or for any amounts earned on the amounts invested in, the Goldman Sachs
Fund. The funds retained in the Disbursement Account and in the Reserve
Account will earn interest at the rates payable under the BNY Cash Reserve
Account pursuant to the Money Fund Direct Agreement between the Agent and
the Company. The funds invested in the Goldman Sachs Fund will earn
interest at the rates payable by the Goldman Sachs Fund (Institutional
Share Class).
1.10 Liquidity Loans. Section 2.26 of the Credit Agreement is hereby
amended by adding a new paragraph 2.26(d) at the end thereof to read in its
entirety as follows:
(d) The Company and each Lender agree that, notwithstanding any other
provision of this Agreement, during the period from the Amendment No. 5
Effective Date to and including the date on which all of the Lenders, each
in its sole discretion, agree to reinstate the ability of the Company to
borrow Liquidity Loans under the Liquidity Subfacility, the Company shall
not be entitled to request, and the Lenders shall not be obligated to make,
any Liquidity Loans.
1.11 Shareholders' Equity. Section 7.11 of the Credit Agreement is
hereby deleted in its entirety and the following substituted therefor:
7.11 Shareholder's Equity.
Maintain at all times for each period set forth below its
Shareholders' Equity in an amount not less than the amount set forth
opposite such period:
Period Minimum Shareholders' Equity
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Effective Date to and including $440,000,000
December 31, 1999
January 1, 2000 to and including $400,000,000
March 31, 2000
April 1, 2000 to and including $375,000,000
June 30, 2000
July 1, 2000 to and including $375,000,000
October 2, 2000
October 3, 2000 and thereafter $440,000,000
1.12 Certain Amendments. Section 7.12 of the Credit Agreement is hereby
(i) renumbered Section 7.12(a) and (ii) amended by adding a new paragraph
7.12(b) at the end thereof to read in its entirety as follows:
(b) Use its best efforts to replace the $95,000,000 Deutsche Bank
Palladium Letter of Credit and to extend the maturity date or expiry
date of any other Indebtedness or other Credit Facility Indebtedness
which matures or expires, as the case may be, prior to September 30,
2000 (including, without limitation, the Indebtedness and Credit
Facility Indebtedness set forth on Schedule C to Amendment No. 5) to a
date that is not earlier than September 30, 2000.
1.13 Leverage Ratio. Section 8.5 of the Credit Agreement is hereby
deleted in its entirety and the following substituted therefor:
8.5 Leverage Ratio.
Permit at any time during each period set forth below its ratio
of (i) the sum of (a) Consolidated Indebtedness plus (b) Consolidated
Contingent Obligations to (ii) the sum of (x) Consolidated
Indebtedness plus (y) Consolidated Contingent Obligations plus (z) the
Company's Shareholders' Equity to be greater than the ratio set forth
opposite such period:
Period Leverage Ratio
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Effective Date to and including 0.650:1.0
March 31, 2000
April 1, 2000 to and including 0.675:1.0
June 30, 2000
July 1, 2000 to and including 0.675:1.0
October 2, 2000
October 3, 2000 and thereafter 0.625:1.0
1.14 Fixed Charge Coverage Ratio. Section 8.9 of the Credit Agreement
is hereby deleted in its entirety and the following substituted therefor:
8.9 Fixed Charge Coverage Ratio.
Permit the Fixed Charge Coverage Ratio to be less than:
(i) 1.25 to 1.00 for the four fiscal quarters (taken as a whole)
ending on December 31, 1999,
(ii) 1.10 to 1.00 for the four fiscal quarters (taken as a whole)
ending on March 31, 2000,
(iii) 0.70 to 1.00 for the four fiscal quarters (taken as a
whole) ending on June 30, 2000, and
(iv) 1.00 to 1.00 for the four fiscal quarters (taken as a whole)
ending on December 31, 2000, and for each four fiscal quarters (taken
as a whole) ending on the last day of each March, June, September and
December thereafter.
1.15 Permitted Dispositions. Schedule B-1 to Amendment No. 3 is hereby
amended by deleting the reference therein to the "Aviation" Property (and
Minimum Net Cash Proceeds related thereto) and substituting the following
therefor:
Asset Minimum Net Cash Proceeds
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Aviation - Ground $115,000,000
Aviation - Fueling $ 40,000,000
Aviation - FBOs $ 27,000,000
2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT.
2.1 The effectiveness of the amendments set forth in this Amendment No.
5 is subject to the prior or simultaneous fulfillment of the following
conditions:
(a) The Agent shall have received this Amendment No. 5 executed by (i)
a duly authorized officer or officers of the Company and (ii) each of the
Lenders;
(b) The Agent shall have received such other documents as it shall have
reasonably requested consistent with the terms hereof;
(c) The representations and warranties set forth in Section 3 hereof
shall be true and correct on and as of the Amendment No. 5 Effective Date;
(d) Holders of Indebtedness under each Covenant Credit Facility
(including without limitation, the Covenant Credit Facilities set forth on
Schedule B hereto) shall have executed, to the extent required by each such
Covenant Credit Facility, waivers or amendments to such credit facilities
satisfactory to the Agent and the Required Lenders containing amendments to the
covenants and related definitions in such credit facilities identical to those
set forth in this Amendment No. 5;
(e) The Agent shall have received a non-refundable amendment fee, for
the pro-rata benefit of the Lenders, equal to $125,000;
(f) The Agent shall have received payment of all of its out-of-pocket
expenses, including the reasonable fees and expenses of its counsel Emmet,
Marvin & Martin, LLP incurred in connection with this Amendment No. 5;
(g) The Agent shall have received the Projections;
2.2 The date on which the conditions set forth in Section 2.1 are
satisfied is the "Amendment No. 5 Effective Date".
3. ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES AND AGREEMENTS.
3.1 The Company hereby (a) reaffirms and admits the validity and
enforceability of the Credit Agreement and the other Loan Documents and all of
its obligations thereunder, and (b) represents and warrants to the Agent and
each Lender:
(i) As of the date hereof, there exists no Default or Event of
Default.
(ii) The Company has full corporate power and authority to enter
into, execute, deliver and carry out the terms of this Amendment No.
5, which has been duly authorized by all proper and necessary
corporate action, and is not in violation of its Restated Certificate
of Incorporation or By-Laws.
(iii) No consent, authorization or approval of, filing with,
notice to, or exemption by, stockholders, any Governmental Body or any
other Person (except for those which have been obtained, made or
given) is required to authorize, or is required in connection with the
execution, delivery and performance of this Amendment No. 5, the
Credit Agreement as amended hereby or any Loan Document, or is
required as a condition to the validity or enforceability of this
Amendment No. 5, the Credit Agreement as amended hereby or any Loan
Document. No provision of any applicable statute, law (including
without limitation, any applicable usury or similar law), rule or
regulation of any Governmental Body will prevent the execution,
delivery or performance of, or affect the validity of, this Amendment
No. 5, the Credit Agreement as amended hereby or any Loan Document.
(iv) This Amendment No. 5 constitutes the valid and legally
binding obligation of the Company enforceable in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting
enforcement of creditors' rights generally or by general principles of
equity.
(v) The execution, delivery, carrying out of the terms of this
Amendment No. 5, the Credit Agreement as amended hereby and the Loan
Documents will not constitute a default under, conflict with, require
any consent under (other than consents which have been obtained), or
result in the creation or imposition of, or obligation to create, any
Lien upon the Property or assets of the Company of any of its
Subsidiaries pursuant to the terms of any mortgage, indenture
(including, without limitation, the 1992 Senior Note Indenture),
contract, agreement, judgment, decree or order.
3.2 All references to "this Agreement" in the Credit Agreement and to
"the Credit Agreement" in the other Loan Documents shall be deemed to refer to
the Credit Agreement as amended by this Amendment No. 5.
3.3 Except as specifically set forth herein, the Credit Agreement and
the other Loan Documents shall remain in full force and effect in accordance
with their terms.
3.4 The Company acknowledges that in the event that there is a
restructuring of the Credit Facility Indebtedness and the Indebtedness of the
Company under the Credit Agreement and the Covenant Credit Facilities, it is
anticipated that the Liquidity Subfacility shall be amended and restated as a
tranche or portion of a new revolving credit facility and the obligations of the
Company in respect of the Liquidity Subfacility shall not be treated as funded
or unfunded obligations for purposes of allocating payments, commitments and
obligations in any "pooled" credit facility established in connection with such
restructuring.
4. DISBURSEMENT AND RESERVE ACCOUNTS
4.1 Each of the Company and each Lender hereby consents to the transfer
by the Agent of the sum of $67,750,000 from the Reserve Account to the
Disbursement Account (the "Amendment No. 5 Transfer"), (i) of which $1,000,000
shall be added to the Balaji Reserve, (ii) of which $9,500,000 shall be
available for the payment of Restructuring Costs (in addition to the $15,000,000
allocated to the payment of Restructuring Costs pursuant to Amendment No. 4 and
through the Amendment No. 4 Effective Date) and (iii) all of which may be
released from the Disbursement Account in accordance with Section 2.25 of the
Credit Agreement.
4.2 The Company represents, warrants and agrees that, as of the
Amendment No. 5 Effective Date and after giving effect to the Amendment No. 5
Transfer, (i) the amount available for disbursement from the Disbursement
Account is $67,750,000 (after giving effect to the Balaji Reserve and the
Haripur Reserve); (ii) the amount on deposit in the Reserve Account is
$109,798,000; and (iii) no additional funds shall be deposited in the
Disbursement Account and no funds shall be transferred from the Reserve Account
to the Disbursement Account (and the Company is not entitled to have any
additional funds deposited in the Disbursement Account or have any funds
transferred from the Reserve Account to the Disbursement Account), subject to
(i) adjustment in accordance with the definition of "Restructuring Costs" set
forth in Amendment No. 3 or (ii) the prior written consent of the Required
Lenders and the requisite creditors under the Credit Facility Indebtedness.
5. MISCELLANEOUS.
5.1 This Amendment No. 5 may be executed by facsimile and in any number
of counterparts, each of which shall be an original and all of which shall
constitute one agreement. It shall not be necessary in making proof of this
Amendment No. 5 to produce or account for more than one counterpart signed by
the party to be charged.
5.2 This Amendment No. 5 is being delivered in and is intended to be
performed in the State of New York and shall be construed and enforceable in
accordance with, and be governed by, the internal laws of the State of New York
without regard to principles of conflict of laws.
5.3 The Company acknowledges and agrees that if and to the extent it
maintains any defenses to its obligations under the Credit Agreement and the
other Loan Documents arising through and including the date hereof, such
defenses are hereby waived and released as a specific condition to the
agreements of the Agent and the Lenders set forth herein, which waiver and
release are unconditional and without limitation.
5.4 The Lenders waive for the purpose, and only for the purpose, of
permitting the Company to obtain disbursements from the Disbursement Account,
any Default or Event of Default arising from the failure of the Company to pay
the Pacific Energy Note due on August 1, 2000, provided that, and only so long
as, Pacific Energy does not take any action (by legal proceeding or otherwise)
to enforce, to compel or to obtain payment of such Note.
The parties hereto have caused this Amendment No. 5 to be duly executed and
delivered by their proper and duly authorized officers as of the day and year
first above written.
OGDEN CORPORATION
By:
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Title:
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AMENDMENT NO. 5 - REVOLVING CREDIT AGREEMENT
THE BANK OF NEW YORK,
Individually and as Agent
By:
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Title:
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BANK OF AMERICA, N.A.
By:
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Title:
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THE CHASE MANHATTAN
BANK
DEUTSCHE BANK AG
New York and/or Cayman
Islands Branches
By:
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Title:
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By:
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Title:
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AMENDMENT NO. 5 - REVOLVING CREDIT AGREEMENT
UBS AG
Stamford Branch
By:
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Title:
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By:
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Title:
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WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:
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Title:
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By:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Title:
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AMENDMENT NO. 5 - REVOLVING CREDIT AGREEMENT
CREDIT LYONNAIS NEW YORK
BRANCH
By:
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Title:
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By:
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Title:
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FLEET NATIONAL BANK
By:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Title:
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SCHEDULE A
TO AMENDMENT NO. 5 TO CREDIT AGREEMENT
Projections
SCHEDULE B
TO AMENDMENT NO. 5 TO CREDIT AGREEMENT
1. Bank of America - Iguazu - $25,000,000 promissory note maturing on
July 31, 2000
SCHEDULE C
TO AMENDMENT NO. 5 TO CREDIT AGREEMENT
1. Dai-Ichi Kangyo Bank - workers compensation - $15,000,000 and
$7,500,000 letters of credit expiring on August 31, 2000
2. Crestar Bank - Fairfax - $900,000 letter of credit expiring on
September 1, 2000
3. Deutsche Bank - Palladium $95,000,000 letter of credit expiring on
October 1, 2000.
4. Huntington - workers compensation - $7,500,000 letter of credit
expiring on August 31, 2000.
5. Chase - Greenway - $1,275,000 letter of credit expiring on September
12, 2000.
SCHEDULE D
TO AMENDMENT NO. 5 TO CREDIT AGREEMENT