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EXHIBIT 10.1
[Execution copy]
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LAMAR ADVERTISING COMPANY
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 16, 1998
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THE CHASE MANHATTAN BANK
as Administrative Agent
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms. . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Classification of Loans and Borrowings. . . . . . . . 23
SECTION 1.03. Terms Generally. . . . . . . . . . . . . . . . . . . . 23
SECTION 1.04. Accounting Terms; GAAP. . . . . . . . . . . . . . . . 24
SECTION 1.05. Subsidiaries; Designation of Unrestricted
Subsidiaries. . . . . . . . . . . . . . . . . . . . . 24
ARTICLE II
The Credits
SECTION 2.01. Commitments. . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.02. Loans and Borrowings. . . . . . . . . . . . . . . . . 27
SECTION 2.03. Requests for Borrowings. . . . . . . . . . . . . . . . 27
SECTION 2.04. Letters of Credit. . . . . . . . . . . . . . . . . . . 28
SECTION 2.05. Funding of Borrowings. . . . . . . . . . . . . . . . . 32
SECTION 2.06. Interest Elections. . . . . . . . . . . . . . . . . . 33
SECTION 2.07. Termination and Reduction of Commitments. . . . . . . 34
SECTION 2.08. Repayment of Loans; Evidence of Debt. . . . . . . . . 36
SECTION 2.09. Prepayment of Loans. . . . . . . . . . . . . . . . . . 39
SECTION 2.10. Fees. . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 2.11. Interest. . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 2.12. Alternate Rate of Interest. . . . . . . . . . . . . . 46
SECTION 2.13. Increased Costs. . . . . . . . . . . . . . . . . . . . 46
SECTION 2.14. Break Funding Payments. . . . . . . . . . . . . . . . 47
SECTION 2.15. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing Of
Set-Offs. . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. . . . 51
ARTICLE III
Guarantee by Subsidiary Guarantors
SECTION 3.01. The Guarantee. . . . . . . . . . . . . . . . . . . . . 52
SECTION 3.02. Obligations Unconditional. . . . . . . . . . . . . . . 52
SECTION 3.03. Reinstatement. . . . . . . . . . . . . . . . . . . . . 53
(i)
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SECTION 3.04. Subrogation. . . . . . . . . . . . . . . . . . . . . . 53
SECTION 3.05. Remedies. . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 3.06. Instrument for the Payment of Money. . . . . . . . . . 54
SECTION 3.07. Continuing Guarantee. . . . . . . . . . . . . . . . . 54
SECTION 3.08. Rights of Contribution. . . . . . . . . . . . . . . . 54
SECTION 3.09. General Limitation on Guarantee Obligations. . . . . . 55
ARTICLE IV
Representations and Warranties
SECTION 4.01. Organization; Powers. . . . . . . . . . . . . . . . . 55
SECTION 4.02. Authorization; Enforceability. . . . . . . . . . . . . 55
SECTION 4.03. Governmental Approvals; No Conflicts. . . . . . . . . 56
SECTION 4.04. Financial Condition; No Material Adverse Change. . . . 56
SECTION 4.05. Properties. . . . . . . . . . . . . . . . . . . . . . 57
SECTION 4.06. Litigation and Environmental Matters. . . . . . . . . 57
SECTION 4.07. Compliance with Laws and Agreements. . . . . . . . . . 58
SECTION 4.08. Investment and Holding Company Status. . . . . . . . . 58
SECTION 4.09. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.10. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.11. Disclosure. . . . . . . . . . . . . . . . . . . . . . 58
SECTION 4.12. Capitalization. . . . . . . . . . . . . . . . . . . . 59
SECTION 4.13. Material Agreements and Liens. . . . . . . . . . . . . 59
SECTION 4.14. Subsidiaries. . . . . . . . . . . . . . . . . . . . . 60
ARTICLE V
Conditions
SECTION 5.01. Effective Date. . . . . . . . . . . . . . . . . . . . 60
SECTION 5.02. Incremental Loan Borrowings. . . . . . . . . . . . . . 63
SECTION 5.03. Each Extension of Credit. . . . . . . . . . . . . . . 63
ARTICLE VI
Affirmative Covenants
SECTION 6.01. Financial Statements and Other Information. . . . . . 64
SECTION 6.02. Notices of Material Events. . . . . . . . . . . . . . 66
SECTION 6.03. Existence; Conduct of Business. . . . . . . . . . . . 67
SECTION 6.04. Payment of Obligations. . . . . . . . . . . . . . . . 67
SECTION 6.05. Maintenance of Properties; Insurance. . . . . . . . . 67
SECTION 6.06. Books and Records; Inspection Rights. . . . . . . . . 67
SECTION 6.07. Fiscal Year. . . . . . . . . . . . . . . . . . . . . . 67
(ii)
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SECTION 6.08. Compliance with Laws. . . . . . . . . . . . . . . . . 67
SECTION 6.09. Use of Proceeds. . . . . . . . . . . . . . . . . . . . 68
SECTION 6.10. Certain Obligations Respecting Restricted
Subsidiaries and Collateral Security. . . . . . . . . 68
ARTICLE VII
Negative Covenants
SECTION 7.01. Indebtedness. . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.02. Liens. . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 7.03. Contingent Liabilities. . . . . . . . . . . . . . . . 72
SECTION 7.04. Fundamental Changes. . . . . . . . . . . . . . . . . . 72
SECTION 7.05. Investments, Loans, Advances, Guarantees and
Acquisitions; Hedging Agreements. . . . . . . . . . . 75
SECTION 7.06. Dividend Payments. . . . . . . . . . . . . . . . . . . 75
SECTION 7.07. Transactions with Affiliates. . . . . . . . . . . . . 76
SECTION 7.08. Restrictive Agreements. . . . . . . . . . . . . . . . 78
SECTION 7.09. Certain Financial Covenants. . . . . . . . . . . . . . 78
SECTION 7.10. Lines of Business. . . . . . . . . . . . . . . . . . . 79
SECTION 7.11. Subordinated Indebtedness. . . . . . . . . . . . . . . 79
SECTION 7.12. Modifications of Certain Documents. . . . . . . . . . 80
ARTICLE VIII
Events of Default . . . . . . . . . . . . . . 80
ARTICLE IX
The Administrative Agent . . . . . . . . . . . . 83
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 10.02. Waivers; Amendments. . . . . . . . . . . . . . . . . 86
SECTION 10.03. Expenses; Indemnity; Damage Waiver. . . . . . . . . . 88
SECTION 10.04. Successors and Assigns. . . . . . . . . . . . . . . . 90
SECTION 10.05. Survival. . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 10.06. Counterparts; Integration; Effectiveness. . . . . . . 93
SECTION 10.07. Severability. . . . . . . . . . . . . . . . . . . . . 93
SECTION 10.08. Right of Setoff. . . . . . . . . . . . . . . . . . . 93
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service
of Process. . . . . . . . . . . . . . . . . . . . . . 94
(iii)
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SECTION 10.10. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . 94
SECTION 10.11. Headings. . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 10.12. Release of Collateral and Guarantees. . . . . . . . . 95
SECTION 10.13. Successor Facility. . . . . . . . . . . . . . . . . . 95
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 4.06 -- Disclosed Matters
Schedule 4.12 -- Certain Equity Rights
Schedule 4.13 -- Material Agreements and Liens
Schedule 4.14 -- Subsidiaries
Schedule 7.01 -- Existing Indebtedness
Schedule 7.02 -- Existing Liens
Schedule 7.03 -- Existing Guarantees
Schedule 7.07 -- Certain Existing Affiliate Transactions
Schedule 7.08 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Counsel to the Credit Parties
Exhibit C -- Form of Opinion of Special Counsel
Exhibit D -- Form of Pledge Agreement
Exhibit E -- Form of Joinder Agreement
(iv)
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 16, 1998
between LAMAR ADVERTISING COMPANY, the SUBSIDIARY GUARANTORS party hereto, the
LENDERS party hereto and THE CHASE MANHATTAN BANK, as Administrative Agent.
The Borrower, the Subsidiary Guarantors, the lenders named
therein (including certain of the Lenders hereunder) and The Chase Manhattan
Bank, as Administrative Agent, are party to a Credit Agreement dated as of
December 18, 1996 (as heretofore modified and supplemented and in effect on the
date hereof immediately before giving effect to the amendment and restatement
contemplated hereby, the "Existing Credit Agreement"). The Borrower has
requested that the Lenders (which include all of the "Lenders" on the date
hereof under the Existing Credit Agreement) and the Administrative Agent agree
to amend and restate the Existing Credit Agreement to provide, inter alia, for
extensions of credit, by means of loans and letters of credit, in an aggregate
amount up to but not exceeding $400,000,000 (which amount may, in the
circumstances hereinafter provided, be increased to $500,000,000). The Lenders
are willing to so agree, and accordingly, the parties hereto hereby agree that
the Existing Credit Agreement shall be amended and restated as of the date
hereof (but subject to Section 5.01) in its entirety as follows:
ARTICLE I
Definitions
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date hereof, by which (i) the Borrower
and/or any of its Subsidiaries acquires the business of, or all or
substantially all of the assets of, any firm, corporation or division thereof
located in a specific geographic area or areas, whether through purchase of
assets, purchase of stock, merger or otherwise or (ii) any Person that was not
theretofore a Subsidiary of the Borrower becomes a Subsidiary of the Borrower.
For purposes of the definition of "Capital Expenditures", the term
"Acquisition" shall also include Logo Acquisition Expenditures, whether or not
such Logo Acquisition Expenditures would otherwise constitute an "Acquisition"
hereunder.
"Adjusted Base Rate" means, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. Any change in the Adjusted Base Rate due to
a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, Base CD Rate or the Federal Funds Effective Rate, respectively.
Amended and Restated Credit Agreement
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"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified. Notwithstanding the foregoing, (a) no individual shall be an
Affiliate solely by reason of his or her being a director, officer or employee
of the Borrower or any of its Restricted Subsidiaries and (b) none of the
Subsidiary Guarantors shall be Affiliates.
"Applicable Percentage" means (a) with respect to any Revolving
Credit Lender for purposes of Section 2.04, the percentage of the total
Revolving Credit Commitments represented by such Lender's Revolving Credit
Commitment, (b) with respect to any Lender in respect of any indemnity claim
under Section 10.03(c) arising out of an action or omission of the
Administrative Agent under this Agreement, the percentage of the total
Commitments or Loans of all Classes hereunder represented by the aggregate
amount of such Lender's Commitment or Loans of all Classes hereunder.
"Applicable Margin" means, (a) for any Type of Revolving Credit
Loans or Term Loans for any Payment Period (as defined below), the respective
rates indicated below for Loans of such Type opposite the applicable Total Debt
Ratio indicated below for such Payment Period and (b) for any Type of
Incremental Loans for any Payment Period, 1/4 of 1% plus the respective rates
indicated below for Loans of such Type opposite the applicable Total Debt Ratio
indicated below for such Payment Period:
Amended and Restated Credit Agreement
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Range Applicable Margin (% p.a.)
of --------------------------
Total Debt Ratio Base Rate Loans Eurodollar Loans
---------------- --------------- ----------------
Greater than or equal .75% 2.00%
to 6.00 to 1
Greater than or equal to .50% 1.75%
5.50 to 1 but less than
6.00 to 1
Greater than or equal to .25% 1.50%
5.00 to 1 but less than
5.50 to 1
Greater than or equal to .00% 1.25%
4.50 to 1 but less than
5.00 to 1
Greater than or equal to .00% 1.00%
4.00 to 1 but less than
4.50 to 1
Less than 4.00 .00% .75%
For purposes hereof, a "Payment Period" means (i) initially, the
period commencing on the Effective Date to but not including the Quarterly Date
falling on or nearest to September 30, 1998 and (ii) thereafter, the period
commencing on a Quarterly Date to but not including the immediately following
Quarterly Date.
The Total Debt Ratio for any Payment Period shall be determined
on the basis of a certificate of a Financial Officer setting forth a
calculation of the Total Debt Ratio as at the last day of the fiscal quarter
immediately preceding such Payment Period (i.e. the Total Debt Ratio for the
Payment Period commencing September 30, 1998 shall be determined on the basis
of the Total Debt Ratio as at June 30, 1998, the Total Debt Ratio for the
Payment Period commencing December 31, 1998 shall be determined on the basis of
the Total Debt Ratio as at September 30, 1998, and so forth), each of which
certificates shall be delivered together with the financial statements for the
fiscal quarter on which such calculation is based, provided that the Total Debt
Ratio for the initial Payment Period shall be based upon the certificate of a
Financial Officer delivered pursuant to Section 5.01(j).
Notwithstanding the foregoing, in the event the Borrower
consummates any Acquisition or Disposition for aggregate consideration of
$25,000,000 or more, or makes a Borrowing or prepayment of Loans of $25,000,000
or more, the Borrower shall forthwith deliver
Amended and Restated Credit Agreement
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to the Administrative Agent a certificate of a Financial Officer, in form and
detail satisfactory to the Administrative Agent, setting forth a
redetermination of the Total Debt Ratio reflecting such Acquisition,
Disposition, Borrowing or prepayment (as the case may be) on a pro forma basis,
and on the date three Business Days after the delivery of such certificate, the
Applicable Margin shall be adjusted to give effect to such redetermination of
the Total Debt Ratio.
Anything in this Agreement to the contrary notwithstanding, the
Applicable Margin shall be the highest rates provided for above (i) during any
period when an Event of Default shall have occurred and be continuing, or (ii)
if the certificate of a Financial Officer shall not be delivered as provided
above prior to the beginning of any Payment Period or within three Business
Days after the occurrence of any Acquisition, Disposition, Borrowing or
prepayment described above (but only, in the case of this clause (ii), with
respect to the portion of such Payment Period prior to the delivery of such
certificate).
"Approved Fund" means, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
"Assessment Rate" means, for any day, the annual assessment rate
in effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the
Administrative Agent.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Base Rate", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted Base Rate.
"Basic Documents" means the Loan Documents, the Senior
Subordinated Notes Indenture and the New Senior Subordinated Notes Indenture
(or any applicable governing agreement for any Refunding Indebtedness) and the
Senior Secured Notes (and any related agreement).
Amended and Restated Credit Agreement
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"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Lamar Advertising Company, a Delaware
corporation.
"Borrowing" means Loans of a particular Class of the same Type,
made, converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in U.S. dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, the sum for the
Borrower or any of its Restricted Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP) of the aggregate amount of
expenditures (including the aggregate amount of Capital Lease Obligations
incurred during such period) made to acquire or construct fixed assets, plant
and equipment (including renewals, improvements and replacements, but excluding
repairs) during such period computed in accordance with GAAP; provided that
such term shall not include any such expenditures in connection with any
Acquisition or any replacement or repair of Property affected by a Casualty
Event.
"Capital Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty Event" means, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Lender (or, for purposes of Section 2.13(b), by any lending office
of such Lender or by such Lender's or the Issuing Lender's holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.
Amended and Restated Credit Agreement
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"Chase" means The Chase Manhattan Bank, a New York banking
corporation.
"Class", when used in reference to any Loan, Borrowing or
Commitment, refers to whether such Loan, the Loans comprising such Borrowing or
the Loans that a Lender holding such Commitment is obligated to make, are
Revolving Credit Loans, Term Loans or Incremental Loans.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Commitments" means the Revolving Credit Commitments, Term Loan
Commitments and Incremental Loan Commitments, as applicable.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Confidential Information Memorandum" means the Confidential
Information Memorandum dated June 1998 with respect to the syndication of the
credit facilities provided herein.
"Credit Parties" means the Borrower and the Subsidiary
Guarantors.
"Debt Service" means, for any period, the sum, for the Borrower
and its Restricted Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) the amount, if
any, by which the aggregate principal amount of Revolving Credit Loans
outstanding hereunder at the beginning of such period shall exceed the
aggregate amount of the Revolving Credit Commitments scheduled to be in effect
at the end of such period after giving effect to any reductions of such
Commitments scheduled to occur during such period pursuant to Section 2.07 plus
(b) all regularly scheduled payments or regularly scheduled mandatory
prepayments of principal of any other Indebtedness (including the Term Loans
and the Incremental Loans and the principal component of any payments in
respect of Capital Lease Obligations, but excluding any prepayments pursuant to
Section 2.09) made during such period plus (c) all Interest Expense for such
period.
"Default" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and
the environmental matters disclosed in Schedule 4.06.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by the
Borrower or any of its Restricted Subsidiaries to any other Person excluding
any sale, assignment, transfer or other disposition of (i) any property sold or
disposed of in the ordinary course of business and on ordinary business
Amended and Restated Credit Agreement
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terms, (ii) any obsolete or worn-out tools and equipment no longer used or
useful in the business of the Borrower and its Restricted Subsidiaries and
(iii) any Collateral under and as defined in the Pledge Agreement pursuant to
an exercise of remedies by the Administrative Agent under Section 5.05 thereof.
"Disposition Investment" means, with respect to any Disposition,
any promissory notes or other evidences of indebtedness or Investments received
by the Borrower or any of its Restricted Subsidiaries in connection with such
Disposition.
"Dividend Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of the Borrower, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such shares of capital stock of the Borrower (and
including also any payments to any Person, such as "phantom stock" payments,
where the amount thereof is calculated with reference to the fair market or
equity value of the Borrower or any of its Subsidiaries), but excluding
dividends payable solely in shares of common stock of the Borrower.
"EBITDA" means, for any period, operating income for the Borrower
and its Restricted Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) for such period (calculated before taxes,
Interest Expense, depreciation, amortization and any other non-cash income or
charges accrued for such period and (except to the extent received or paid in
cash by the Borrower or any of its Restricted Subsidiaries) income or loss
attributable to equity in Affiliates for such period) excluding any
extraordinary and unusual gains or losses during such period and excluding the
proceeds of any Casualty Events and Dispositions.
Notwithstanding the foregoing, except as otherwise provided in
Section 7.04(g), if during any period for which EBITDA is being determined the
Borrower shall have consummated any Acquisition or Disposition then, for all
purposes of this Agreement (other than for purposes of the definition of Excess
Cash Flow), EBITDA shall be determined on a pro forma basis as if such
Acquisition or Disposition had been made or consummated on the first day of
such period.
"Effective Date" means the date on which the conditions specified
in Section 5.01 are satisfied (or waived in accordance with Section 10.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) violation
Amended and Restated Credit Agreement
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of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Hedging Arrangement" means any agreement or other
arrangement pursuant to which the Borrower or any of its Restricted
Subsidiaries shall agree to purchase shares of capital stock of the Borrower
from another Person at a fixed price or formula (or to make payments to another
Person calculated with reference to the price of any such shares), whether such
agreement or other arrangement arises in connection with an acquisition of a
business or property, an employee benefit plan, a hedging transaction or
otherwise.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any stockholders' or voting trust agreements) for the
issuance or sale of, or securities convertible into, any additional shares of
capital stock of any class, or partnership or other ownership interests of any
type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived), (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived, (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan, (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan, or (g) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Borrower or
any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
Amended and Restated Credit Agreement
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"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VIII.
"Excess Cash Flow" means, for any period, the excess of (a)
EBITDA for such period over (b) the sum of (i) Debt Service for such period
plus (ii) the aggregate amount of all Capital Expenditures and Logo Acquisition
Expenditures made during such period plus (iii) the aggregate amount paid, or
required to be paid, in cash in respect of income, franchise, real estate and
other like taxes for such period (to the extent not deducted in determining
EBITDA for such period).
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, the Issuing Lender or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, (a) income, net
worth or franchise taxes imposed on (or measured by) its net income or net
worth by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located or in which it is taxable solely on account of some connection other
than the execution, delivery or performance of this Agreement or the receipt of
income hereunder, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the
Borrower is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.17(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement or is
attributable to such Foreign Lender's failure or inability to comply with
Section 2.15(e), except to the extent that such Foreign Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional amounts
from the Borrower with respect to such withholding tax pursuant to Section
2.15(a).
"Existing Credit Agreement" has the meaning assigned to such term
in the preamble to this Agreement.
"Existing Lenders" means any Lender hereunder that is also a
"Lender" under the Existing Credit Agreement.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of l%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
Amended and Restated Credit Agreement
15
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"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower, as the case may
be.
"Fixed Charges Ratio" means, as at any date, the ratio of (a)
EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) the sum for the Borrower and its
Restricted Subsidiaries (determined on a consolidated basis without duplication
in accordance with GAAP), of the following: (i) all Debt Service for such
period plus (ii) the aggregate amount of all Capital Expenditures made during
such period plus (iii) the aggregate amount paid, or required to be paid, in
cash in respect of income, franchise, real estate and other like taxes for such
period (to the extent not deducted in determining EBITDA for such period).
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary of the Borrower
organized in a jurisdiction other than the United States of America, any State
thereof, or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" means a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as a verb
shall have a correlative meaning.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon
Amended and Restated Credit Agreement
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gas, infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"Inactive Subsidiary" means, as at any date, any Subsidiary of
the Borrower that, as at the end of and for the quarterly accounting period
ending on or most recently ended prior to such date, shall have less than
$1,000 in assets.
"Incremental Loan" has the meaning assigned to such term in
Section 2.01(c).
"Incremental Loan Commitment" means, with respect to each Lender,
the amount of the offer of such Lender to make Incremental Loans of any Series
that is accepted by the Borrower in accordance with the provisions of Section
2.01(c), as such amount may be (a) reduced from time to time pursuant to
Sections 2.07 and 2.09 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The aggregate
amount of the Incremental Loan Commitments of all Series shall not exceed
$100,000,000.
"Incremental Loan Commitment Termination Date" means the
Quarterly Date falling on or nearest to December 31, 2000.
"Incremental Loan Lenders" means, in respect of any Series of
Incremental Loans, (a) initially, the Lenders whose offers to make Incremental
Loans of such Series shall have been accepted by the Borrower in accordance
with the provisions of Section 2.01(c) and (b) thereafter, the Lenders from
time to time holding Incremental Loans of such Series and/or Incremental Loan
Commitments of such Series after giving effect to any assignments thereof
permitted by Section 10.04.
"Incremental Loan Maturity Date" means the Quarterly Date falling
on or nearest to June 30, 2006.
"Indebtedness" means, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of Property or services, other
than trade accounts payable (other than for borrowed money) arising, and
accrued expenses incurred, in the ordinary course of business so long as such
trade accounts are payable within 120 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of
such Person in respect of letters of credit or similar instruments issued or
accepted by banks and other financial institutions for account of such Person;
(e) Capital Lease Obligations of such Person; (f) Indebtedness of others
Amended and Restated Credit Agreement
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Guaranteed by such Person; and (g) obligations under Equity Hedging
Arrangements (and, for purposes hereof, the amount of Indebtedness under an
Equity Hedging Arrangement shall be deemed to be equal to the aggregate maximum
contingent or potential liability under such Equity Hedging Arrangement). The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
Notwithstanding the foregoing, the following items shall not be
deemed "Indebtedness" for purposes hereof: (i) obligations under Hedging
Agreements; (ii) obligations in respect of Surety Bonds (other than letters of
credit supporting obligations in respect of Surety Bonds, as to which clause
(iii) below shall apply, and other than Surety Bonds supporting obligations
that would otherwise constitute Indebtedness under this definition) to the
extent that the aggregate amount of all such obligations does not exceed
$20,000,000; and (iii) obligations in respect of the undrawn face amount of
letters of credit (other than letters of credit supporting obligations that
would otherwise constitute Indebtedness under this definition) to the extent
that the aggregate amount of all such obligations does not exceed $5,000,000.
"Indemnified Taxes" means all Taxes other than (a) Excluded Taxes
and Other Taxes and (b) amounts constituting penalties or interest imposed with
respect to Excluded Taxes or Other Taxes.
"Interest Coverage Ratio" means, as at any date, the ratio of (a)
EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Interest Expense for such period.
"Interest Expense" means, for any period, the sum, for the
Borrower and its Restricted Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all
interest in respect of Indebtedness accrued or capitalized during such period
(whether or not actually paid during such period) plus (b) the net amounts
payable (or minus the net amounts receivable) under Hedging Agreements accrued
during such period (whether or not actually paid or received during such
period) including, without limitation, fees, but excluding reimbursement of
legal fees and other similar transaction costs and excluding payments required
by reason of the early termination of Hedging Agreements in effect on the date
hereof plus (c) all fees, including letter of credit fees and expenses,
incurred hereunder after the Effective Date.
Notwithstanding the foregoing, if during any period for which
Interest Expense is being determined the Borrower shall have consummated any
Acquisition or Disposition then, for all purposes of this Agreement (other than
for purposes of the definition of Excess Cash Flow), Interest Expense shall be
determined on a pro forma basis as if such Acquisition or Disposition (and any
Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in
connection with such Acquisition or repaid as a result of such Disposition) had
been made or consummated (and such Indebtedness incurred or repaid) on the
first day of such period.
Amended and Restated Credit Agreement
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"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any Base Rate
Loan, each Quarterly Date and (b) with respect to any Eurodollar Loan, the last
Business Day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each Business Day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, with the consent of each Lender of the relevant Class, nine or
twelve months) thereafter, as the Borrower may elect; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing. Notwithstanding the foregoing,
(v) if any Interest Period for any Revolving Credit Borrowing
would otherwise end after the Revolving Credit Maturity Date, such
Interest Period shall end on the Revolving Credit Maturity Date,
(w) no Interest Period for any Revolving Credit Borrowing may
commence before and end after any Revolving Credit Commitment Reduction
Date unless, after giving effect thereto (and taking into account any
then-outstanding Letters of Credit), the aggregate principal amount of
Revolving Credit Loans having Interest Periods that end after such
Revolving Credit Commitment Reduction Date shall be equal to or less
than the aggregate principal amount of Revolving Credit Loans scheduled
to be outstanding after giving effect to the payments of principal
required to be made on such Revolving Credit Commitment Reduction Date,
(x) no Interest Period for any Term Loan Borrowing may commence
before and end after any Principal Payment Date unless, after giving
effect thereto, the aggregate principal amount of Term Loans having
Interest Periods that end after such Principal Payment Date shall be
equal to or less than the aggregate principal amount of Term Loans
scheduled to be outstanding after giving effect to the payments of
principal required to be made on such Principal Payment Date,
(y) no Interest Period for any Incremental Loan Borrowing of any
Series may commence before and end after any Principal Payment Date
unless, after giving effect
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thereto, the aggregate principal amount of the Incremental Loans of such
Series having Interest Periods that end after such Principal Payment
Date shall be equal to or less than the aggregate principal amount of
the Incremental Loans of such Series scheduled to be outstanding after
giving effect to the payments of principal required to be made on such
Principal Payment Date, and
(z) notwithstanding the foregoing clauses (v), (w), (x) and (y),
no Interest Period shall have a duration of less than one month and, if
the Interest Period for any Eurodollar Loan would otherwise be a shorter
period, such Loan shall not be available hereunder as a Eurodollar Loan
for such period.
"Investment" means, for any Person: (a) the acquisition (whether
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of, or capital contribution to, any other Person or any agreement to
make any such acquisition or capital contribution (including, without
limitation, any "short sale" or any sale of any securities at a time when such
securities are not owned by the Person entering into such short sale); (b) the
making of any deposit with, or advance, loan or other extension of credit to,
any other Person (including the purchase of Property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such Property to such Person, but excluding any such advance, loan or extension
of credit having a term not exceeding 180 days representing the purchase price
of inventory or supplies sold by such Person in the ordinary course of
business); or (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended
to such Person.
Notwithstanding the foregoing, the following items shall not be
deemed "Investments" for purposes hereof: (i) Capital Expenditures, (ii)
Acquisitions, (iii) Logo Acquisition Expenditures and (iv) obligations
(including, without limitation, deposits) in connection with Surety Bonds.
"Issuing Lender" means The Chase Manhattan Bank, in its capacity
as the issuer of Letters of Credit hereunder.
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit E.
"LC Disbursement" means a payment made by the Issuing Lender
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by
or on behalf of the Borrower at such time. The LC Exposure of any Revolving
Credit Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.
Amended and Restated Credit Agreement
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"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Dow Jones Markets
Telerate Service (or on any successor or substitute page of such Service, or
any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to U.S. dollar deposits in
the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate
for U.S. dollar deposits with a maturity comparable to such Interest Period.
In the event that such rate is not available at such time for any reason, then
the "LIBO Rate" with respect to such Eurodollar Borrowing for such Interest
Period shall be the rate at which U.S. dollar deposits of $5,000,000, and for a
maturity comparable to such Interest Period, are offered by the principal
London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (other
than an operating lease) (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset and (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities.
"Loan Documents" means this Agreement, any promissory notes
evidencing Loans hereunder and the Security Documents.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Logo Acquisition Expenditures" means expenditures made by the
Borrower and its Restricted Subsidiaries in connection with the logo signage
business, including, without limitation, the purchase price of franchises, the
payment of franchise fees and expenditures made in connection with the build-
out of signage for any such franchise, in each case to the extent incurred
during the twenty-four month period commencing on the date of the initial
granting of a contract for logo signage business (or the date of a modification
or extension of a contract requiring additional expenditures in respect of such
contract or business).
"Logo Joint Ventures" means the Missouri Partnership and each
other Subsidiary of the Borrower designated by the Borrower with the consent of
the Required Lenders whose
Amended and Restated Credit Agreement
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principal business is logo signage and a portion of whose equity is owned by
one or more Persons other than the Borrower, its Subsidiaries and its
Affiliates.
"Material Adverse Effect" means a material adverse effect on (a)
the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Restricted Subsidiaries (or of the Borrower
and all of its Restricted Subsidiaries) taken as a whole, (b) the ability of
any Credit Party to perform any of their respective obligations under this
Agreement or the other Loan Documents or (c) the rights of or benefits
available to the Lenders under this Agreement and the other Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans
or Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower or any of its Restricted
Subsidiaries in an aggregate principal amount exceeding $5,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of any Person in respect of any Hedging Agreement at any time shall
be the maximum aggregate amount (giving effect to any netting agreements) that
such Person would be required to pay if such Hedging Agreement were terminated
at such time.
"Missouri Partnership" means Missouri Logos, a Missouri general
partnership, in which MIL is a general partner.
"MIL" means Missouri Logos, Inc., a Wholly Owned Subsidiary of
Interstate Logos, Inc., a Wholly Owned Subsidiary of the Borrower.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Available Proceeds" means:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition; and
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received by the Borrower and its Restricted Subsidiaries in respect of
such Casualty Event net of (A) reasonable expenses incurred by the
Borrower and its Restricted Subsidiaries in connection therewith and (B)
contractually required repayments of Indebtedness to the extent secured
by a Lien on such property and any income and transfer taxes payable by
the Borrower or any of its Restricted Subsidiaries in respect of such
Casualty Event.
"Net Cash Payments" means, with respect to any Disposition, the
aggregate amount of all cash payments received by the Borrower and its
Restricted Subsidiaries directly or indirectly in connection with such
Disposition, whether at the time of such Disposition or after such Disposition
under deferred payment arrangements or Investments entered into or received in
connection with such Disposition (including, without limitation, Disposition
Investments); provided that
Amended and Restated Credit Agreement
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(a) Net Cash Payments shall be net of (i) the amount of any
legal, title, transfer and recording tax expenses, commissions and other
fees and expenses payable by the Borrower and its Restricted
Subsidiaries in connection with such Disposition and (ii) any Federal,
state and local income or other taxes estimated to be payable by the
Borrower and its Restricted Subsidiaries as a result of such
Disposition, but only to the extent that such estimated taxes are in
fact paid to the relevant Federal, state or local governmental authority
within twelve months of the date of such Disposition; and
(b) Net Cash Payments shall be net of any repayments by the
Borrower or any of its Restricted Subsidiaries of Indebtedness to the
extent that (i) such Indebtedness is secured by a Lien on the property
that is the subject of such Disposition and (ii) the transferee of (or
holder of a Lien on) such property requires that such Indebtedness be
repaid as a condition to the purchase of such property.
"New Senior Subordinated Notes" means the notes issued after the
date hereof in accordance with the requirements of Section 7.01(b).
"New Senior Subordinated Notes Indentures" means the Indentures
pursuant to which New Senior Subordinated Notes are issued.
"1998 Equity Offering" means the offering by the Borrower of
6,375,000 shares of its Class A Common Stock, $0.001 par value per share,
pursuant to a Prospectus dated June 5, 1998.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement and the other
Loan Documents, provided that there shall be excluded from "Other Taxes" all
Excluded Taxes.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard and
Poor's Ratings Service or from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America
Amended and Restated Credit Agreement
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or any State thereof which has a combined capital and surplus and
undivided profits of not less than $250,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pledge Agreement" means an Amended and Restated Pledge Agreement
substantially in the form of Exhibit D between the Credit Parties and the
Administrative Agent.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank, as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly
announced as being effective.
"Principal Payment Dates" means the Quarterly Dates falling on or
nearest to March 31, June 30, September 31 and December 31 of each year,
commencing with September 30, 2000 through and including June 30, 2006.
"Qualified Reilly Partnership" means any general or limited
partnership, all of the partnership interests of which are owned by (a) Kevin
P. Reilly, Sr., (b) his wife, (c) his children, (d) his grandchildren, or (e)
trusts of which he, his wife, his children and his grandchildren are the sole
beneficiaries and for which one or more of such individuals are the sole
trustee(s).
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date of this Agreement.
"Refunding Indebtedness" has the meaning assigned to such term in
Section 7.01(c).
"Register" has the meaning assigned to such term in Section
10.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
Amended and Restated Credit Agreement
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"Required Incremental Loan Lenders" means, with respect to any
Series of Incremental Loans at any time, Lenders having Incremental Loans of
such Series and unused Incremental Loan Commitments of such Series representing
a majority of the sum of the total Incremental Loans of such Series and unused
Incremental Loan Commitments of such Series at such time.
"Required Lenders" means, at any time, Lenders having Loans, LC
Exposure and unused Commitments representing at least a majority of the sum of
the total Loans, LC Exposure and unused Commitments at such time.
"Required Revolving Credit Lenders" means, at any time, Lenders
having Revolving Credit Loans, LC Exposure and unused Revolving Credit
Commitments representing at least a majority of the sum of the total Revolving
Credit Loans, LC Exposure and unused Revolving Credit Commitments at such time.
"Required Term Loan Lenders" means, Lenders having Term Loans and
unused Term Loan Commitments representing a majority of the sum of the total
Term Loans and unused Term Loan Commitments at such time.
"Restricted Subsidiary" means any Subsidiary of the Borrower
other than an Unrestricted Subsidiary.
"Reserved Commitment Amount" has the meaning assigned to such
term in Section 2.01(a).
"Revolving Credit Availability Period" means the period from and
including the Effective Date to but excluding the earlier of (a) the Revolving
Credit Maturity Date and (b) the date of termination of the Revolving Credit
Commitments.
"Revolving Credit Commitment" means, with respect to each Lender,
the commitment of such Lender to make Revolving Credit Loans and to acquire
participations in Letters of Credit hereunder, as such commitment may be (a)
reduced from time to time pursuant to Sections 2.07 and 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each Lender's Revolving
Credit Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Revolving
Credit Commitment, as applicable. The aggregate original amount of the
Revolving Credit Commitments is $250,000,000.
"Revolving Credit Commitment Reduction Dates" means the Quarterly
Dates falling on or nearest to March 31, June 30, September 30 and December 31
of each year, commencing with March 31, 2000 through and including December 31,
2005.
"Revolving Credit Exposure" means, with respect to any Revolving
Credit Lender at any time, the sum of the outstanding principal amount of such
Lender's Revolving Credit Loans and its LC Exposure at such time.
Amended and Restated Credit Agreement
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"Revolving Credit Lender" means (a) initially, a Lender that has
a Revolving Credit Commitment set forth opposite its name on Schedule 2.01 and
(b) thereafter, the Lenders from time to time holding Revolving Credit Loans
and Revolving Credit Commitments, after giving effect to any assignments
thereof permitted by Section 10.04.
"Revolving Credit Loan" means a Loan made pursuant to Section
2.01(a) that utilizes the Revolving Credit Commitment.
"Revolving Credit Maturity Date" means the last Business Day in
December 2005.
"Security Documents" means the Pledge Agreement and all Uniform
Commercial Code financing statements required by the Pledge Agreement to be
filed with respect to the security interests created pursuant thereto.
"Senior Debt Ratio" means, as at any date, the ratio of (a) all
Indebtedness (other than Subordinated Indebtedness) of the Borrower and its
Restricted Subsidiaries (determined on a consolidated basis without duplication
in accordance with GAAP) on such date to (b) EBITDA for the period of four
consecutive quarters ending on or most recently ended prior to such date.
"Senior Secured Notes" means the Borrower's 11% Senior Notes
issued pursuant to a Second Supplemental Indenture in the form of an Amended
and Restated Indenture dated as of November 8, 1996, amending and restating in
its entirety the Borrower's 11% Senior Secured Notes due May 15, 2003 issued on
the Closing Date under and as defined in the Existing Credit Agreements in an
original aggregate face amount equal to $100,000,000 (of which not more than
$1,173,000 are outstanding on the date hereof).
"Senior Subordinated Notes" means, collectively, (a) the 9-5/8%
Senior Subordinated Notes due 2006 of the Borrower in the original principal
amount of $255,000,000 and (b) the 8-5/8% Senior Subordinated Notes due 2007 of
the Borrower in the original principal amount of $200,000,000.
"Senior Subordinated Notes Indenture" means the Indentures
pursuant to which the Senior Subordinated Notes have been issued.
"Series" has the meaning assigned to such term in Section
2.01(c).
"Significant Subsidiary Guarantor" means, as at any date, any
Subsidiary Guarantor having assets with a fair market value of $20,000,000 or
more.
"Special Counsel" means Milbank, Tweed, Hadley & McCloy, in its
capacity as special counsel to The Chase Manhattan Bank, as Administrative
Agent of the credit facilities contemplated hereby.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus
Amended and Restated Credit Agreement
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the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Board to which the Administrative Agent is subject (a) with respect to
the Base CD Rate, for new negotiable nonpersonal time deposits in dollars of
over $100,000 with maturities approximately equal to three months and (b) with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Subordinated Indebtedness" means, collectively, (i) Indebtedness
in respect of the Senior Subordinated Notes and the New Senior Subordinated
Notes (and, effective upon any extension, renewal, refunding or replacement of
any of the Senior Subordinated Notes as contemplated in Section 7.01(c), any
Refunding Indebtedness), (ii) the 8% Series A Unsecured Subordinated Discount
Debentures of the Borrower due 2001 (of which $1,626,204 are outstanding on the
date hereof) and (iii) the 8% unsecured Subordinated Notes of the Borrower due
2006 (of which $16,333,337 are outstanding on the date hereof).
"Subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, limited liability company, partnership, association or
other entity (a) of which securities or other ownership interests representing
more than 50% of the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise Controlled, by
the parent or one or more subsidiaries of the parent or by the parent and one
or more subsidiaries of the parent. References herein to "Subsidiaries" shall,
unless the context requires otherwise, be deemed to be references to
Subsidiaries of the Borrower.
"Subsidiary Guarantors" means the Persons listed under the
caption "SUBSIDIARY GUARANTORS" on the signature pages hereto.
"Surety Bonds" means surety or other similar bonds required to be
posted by the Borrower and its Restricted Subsidiaries in the ordinary course
of their respective businesses or posted on behalf of Affiliates in the
ordinary course of their respective businesses.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Term Loan Availability Period" means the period from and
including the Effective Date to but excluding the earlier of (a) the Term Loan
Commitment Termination Date and (b) the date of termination of the Term Loan
Commitments.
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"Term Loan Commitment" means, with respect to each Lender, the
commitment of such Lender to make Term Loans during the Term Loan Availability
Period, expressed as an amount representing the maximum aggregate principal
amount of the Term Loans to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Sections 2.07 and
2.09 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 10.04. The initial amount of each
Lender's Term Loan Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Term Loan Commitment, as applicable. The aggregate original amount of the Term
Loan Commitments is $150,000,000.
"Term Loan Lender" means (a) initially, a Lender that has a Term
Loan Commitment set forth opposite its name on Schedule 2.01 and (b)
thereafter, the Lenders from time to time holding Term Loan Loans and Term Loan
Commitments, after giving effect to any assignments thereof permitted by
Section 10.04.
"Term Loan" means a Loan made pursuant to Section 2.01(b) that
utilizes the Term Loan Commitment.
"Term Loan Commitment Termination Date" means the last Business
Day in June 1999.
"Term Loan Maturity Date" means the Quarterly Date falling on or
nearest to December 31, 2005.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate is not so reported on such day or
such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Total Debt Ratio" means, as at any date, the ratio of (a) all
Indebtedness of the Borrower and its Restricted Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP) on such date to
(b) EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date.
"Transactions" means (a) with respect to the Borrower, the
execution, delivery and performance by the Borrower of the Loan Documents to
which it is a party, the borrowing of Loans and the use of the proceeds
thereof, and the issuance of Letters of Credit hereunder and (b) with respect
to any Credit Party (other than the Borrower), the execution, delivery and
performance by such Credit Party of the Loan Documents to which it is a party.
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"Type", when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Adjusted
Base Rate.
"Unrestricted Subsidiaries" means any Subsidiary of the Borrower
that (a) shall have been designated as an "Unrestricted Subsidiary" in
accordance with the provisions of Section 1.05 and (b) any Subsidiary of an
Unrestricted Subsidiary.
"U.S. dollars" or "$" refers to lawful money of the United States
of America.
"Wholly Owned Subsidiary" means, with respect to any Person at
any date, any corporation, limited liability company, partnership, association
or other entity of which securities or other ownership interests representing
100% of the equity or ordinary voting power (other than directors' qualifying
shares) or, in the case of a partnership, 100% of the general partnership
interests are, as of such date, directly or indirectly owned, controlled or
held by such Person or one or more Wholly Owned Subsidiaries of such Person or
by such Person and one or more Wholly Owned Subsidiaries of such Person. The
term "Wholly Owned Restricted Subsidiary" shall refer to any Restricted
Subsidiary that is also a Wholly Owned Subsidiary.
"Withdrawal Liability" means liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Credit Loan", "Term Loan" or "Incremental Loan") or by Type
(e.g., a "Base Rate Loan", or a "Eurodollar Loan") or by Class and Type (e.g.,
a "Eurodollar Revolving Credit Loan" or a "Base Rate Revolving Credit Loan");
each Series of Incremental Loans shall be deemed a separate Class of Loans
hereunder. In similar fashion, (i) Borrowings may be classified and referred
to by Class, by Type and by Class and Type, and (ii) Commitments may be
classified and referred to by Class; each Series of Incremental Loan Borrowings
and Incremental Loan Commitments shall be deemed a separate Borrowing and
Commitment hereunder.
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and
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Schedules to, this Agreement and (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
SECTION 1.05. SUBSIDIARIES; DESIGNATION OF UNRESTRICTED
SUBSIDIARIES. The Borrower may at any time designate any of its Subsidiaries
(including any newly acquired or newly formed Subsidiary) to be an
"Unrestricted Subsidiary" for purposes of this Agreement, by delivering to the
Administrative Agent a certificate of a Financial Officer (and the
Administrative Agent shall promptly forward a copy of such certificate to each
Lender) attaching a copy of a resolution of its Board of Directors (or
authorized subcommittee thereof) setting forth such designation and stating
that the conditions set forth in this Section 1.05 have been satisfied with
respect to such designation, provided that no such designation shall be
effective unless (x) at the time of such designation and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing
and (y) at the time of such designation and at all times thereafter:
(a) except as permitted under Section 7.03, no portion of the
Indebtedness or any other obligation (contingent or otherwise) of such
Unrestricted Subsidiary (other than obligations in respect of
performance and surety bonds and in respect of reimbursement obligations
for undrawn letters of credit supporting insurance arrangement and
performance and surety bonds, each incurred in the ordinary course of
business and not as part of a financing transaction (collectively,
"Permitted Unrestricted Subsidiary Obligations")) (A) is guaranteed by
the Borrower or any Restricted Subsidiary or (B) is recourse to or
obligates the Borrower or any Restricted Subsidiary of the Borrower,
directly or indirectly, contingently or otherwise, to satisfaction
thereof,
(b) such Unrestricted Subsidiary has no Indebtedness or any
other obligation (other than Permitted Unrestricted Subsidiary
Obligations) that, if in default in any respect (including a payment
default), would permit (upon notice, lapse of time or both) any holder
of any other Indebtedness of the Borrower or its Restricted subsidiaries
to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity and
Amended and Restated Credit Agreement
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(c) such Subsidiary is an "Unrestricted Subsidiary" under the
Senior Subordinated Notes Indentures and New Senior Subordinated Notes
Indentures.
Any designation of a Subsidiary as an Unrestricted Subsidiary shall be deemed
an Investment in an amount equal to the fair market value of such Subsidiary
(as determined in good faith by the board of directors of the Borrower) and any
such designation shall be permitted only if it complies with the provisions of
Section 7.05. Any designation of an Unrestricted Subsidiary as a Restricted
Subsidiary shall be deemed an Acquisition of such Unrestricted Subsidiary and
shall be permitted only to the extent permitted as an Acquisition under Section
7.04(e). The Borrower shall give the Administrative Agent and each Lender
prompt notice of each resolution adopted by the Board of Directors (or
authorized subcommittee thereof) of the Borrower under this Section 1.05
designating any Subsidiary as an Unrestricted Subsidiary (and notice of each
designation of an Unrestricted Subsidiary as a Restricted Subsidiary), together
with a copy of each such resolution adopted.
ARTICLE II
The Credits
SECTION 2.01. COMMITMENTS.
(a) Revolving Credit Loans. Subject to the terms and conditions
set forth herein, each Revolving Credit Lender agrees to make Revolving Credit
Loans to the Borrower from time to time during the Revolving Credit
Availability Period in an aggregate principal amount that will not result in
such Lender's Revolving Credit Loans exceeding such Lender's Revolving Credit
Commitment, provided that the total Revolving Credit Exposure shall not at any
time exceed the total Revolving Credit Commitments. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Credit Loans.
Proceeds of Revolving Credit Loans shall be available for any use
permitted under the applicable provisions of Section 6.09, provided that, in
the event that, as contemplated by Section 2.09(b)(ii), the Borrower shall
prepay Revolving Credit Loans from the proceeds of a Disposition hereunder,
then an amount of Revolving Credit Commitments, as specified by the Borrower
pursuant to the next sentence, equal to the amount of such prepayment (herein
the "Reserved Commitment Amount") shall be reserved and shall not be available
for borrowings hereunder except and to the extent that the proceeds of such
borrowings are to be applied to make Capital Expenditures, Logo Acquisition
Expenditures or Acquisitions permitted hereunder, or to make prepayments of
Loans under Section 2.09(b)(ii)(z)(B). The Borrower agrees, upon the occasion
of any Borrowing of Revolving Credit Loans hereunder that is to constitute a
utilization of any Reserved Commitment Amount, to advise the Administrative
Agent in writing of such fact at the time of such Borrowing, identifying the
amount of such Borrowing that is to constitute such utilization, the Capital
Expenditure, Logo Acquisition Expenditure or Acquisition in respect of which
the proceeds of such Borrowing are to be applied and the reduced Reserved
Commitment Amount to be in effect after giving effect to such Borrowing.
Amended and Restated Credit Agreement
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(b) Term Loans. Subject to the terms and conditions set forth
herein, each Term Loan Lender agrees to make Term Loans to the Borrower during
the Term Loan Availability Period, in an aggregate principal amount up to but
not exceeding its Term Loan Commitment. Term Loans that are prepaid may not be
reborrowed.
(c) Incremental Loans. In addition to Borrowings of Revolving
Credit Loans and Term Loans pursuant to paragraphs (a) and (b) above, at any
time and from time to time prior to the Incremental Loan Commitment Termination
Date, the Borrower may request that the Lenders offer to enter into commitments
to make additional term loans (each such loan being herein called an
"Incremental Loan") under this paragraph (c). In the event that one or more of
the Lenders offer, in their sole discretion, to enter into such commitments,
and such Lenders and the Borrower agree as to the amount of such commitments
that shall be allocated to the respective Lenders making such offers and the
fees (if any) to be payable by the Borrower in connection therewith, such
Lenders shall become obligated to make Incremental Loans under this Agreement
in an amount equal to the amount of their respective Incremental Loan
Commitments. The Incremental Loans to be made pursuant to any such agreement
between the Borrower and one or more Lenders in response to any such request by
the Borrower shall be deemed to be a separate "Series" of Incremental Loans for
all purposes of this Agreement. Anything herein to the contrary
notwithstanding, (i) the minimum aggregate principal amount of Incremental Loan
Commitments entered into pursuant to any such request (and, accordingly, the
minimum aggregate principal amount of any Series of Incremental Loans) shall be
$5,000,000 and (ii) the aggregate principal amount of all Incremental Loan
Commitments and Incremental Loans shall not exceed $100,000,000.
Following the acceptance by the Borrower of the offers made by
any one or more Lenders to make any Series of Incremental Loans pursuant to the
foregoing provisions of this Section 2.01(c), each Incremental Loan Lender in
respect of such Series of Incremental Loans severally agrees, on the terms and
conditions of this Agreement, to make such Incremental Loans to the Borrower in
Dollars during the period from and including the date of such acceptance to but
excluding the Incremental Loan Commitment Termination Date in an aggregate
principal amount up to but not exceeding the amount of the Incremental Loan
Commitment of such Incremental Loan Lender in respect of such Series as in
effect from time to time. Thereafter, subject to the terms and conditions of
this Agreement, the Borrower may convert Incremental Loans of such Series of
one Type into Incremental Loans of such Series of another Type (as provided in
Section 2.06) or continue Incremental Loans of such Series of one Type as
Incremental Loans of such Series of the same Type (as provided in Section
2.06). Incremental Loans of any Series that are prepaid may not be reborrowed
as Incremental Loans of the same Series.
Proceeds of Incremental Loans shall be available for any use
permitted under the applicable provisions of Section 6.09.
(d) Treatment of Loans Outstanding under Existing Credit
Agreement. In the event that any loans under the Existing Credit Agreement
shall remain outstanding on the Effective Date, then such loans shall be
continued as Revolving Credit Loans or Term Loans
Amended and Restated Credit Agreement
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hereunder, as the Borrower shall specify at the time of the initial Borrowing
hereunder, and the Lenders hereunder shall, on the Effective Date, take such
actions, and make such adjustments among themselves, as shall be necessary so
that such loans are held hereunder pro rata in accordance with their respective
Revolving Credit Commitments and Term Loan Commitments, including by purchasing
the loans under the Existing Credit Agreement of any "Lenders" under the
Existing Credit Agreement that are not becoming Lenders hereunder. On the
Effective Date, the Borrower shall cause to be paid to each "Lender" party to
the Existing Credit Agreement, all amounts that would be owing to such Lender
under Section 2.14 of the Existing Credit Agreement as if the "Loans" of such
Lender under the Existing Credit Agreement were being repaid on the Effective
Date, whether or not any such loans are actually repaid on the Effective Date.
SECTION 2.02. LOANS AND BORROWINGS.
(a) Each Loan of a particular Class (and, in the case of
Incremental Loans, of a particular Series) shall be made as part of a Borrowing
consisting of Loans of such Class (and, if applicable, of such Series) made by
the Lenders ratably in accordance with their respective Commitments of such
Class (and, if applicable, of such Series). The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are several
and no Lender shall be responsible for any other Lender's failure to make Loans
as required.
(b) Subject to Section 2.12, each Borrowing shall be comprised
entirely of Base Rate Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for a Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount at least equal to
$2,000,000 or any greater multiple of $1,000,000. At the time that each Base
Rate Borrowing is made, such Borrowing shall be in an aggregate amount that is
at least equal to $500,000 or any greater multiple of $500,000; provided that
(i) a Base Rate Borrowing of Loans of any Class may be in an aggregate amount
that is equal to the entire unused balance of the total Commitments of such
Class (or, in the case of an Incremental Loan Commitment of any Series, in an
aggregate amount that is equal to the entire unused balance of the total
Commitments of such Series) and (ii) a Revolving Credit Base Rate Borrowing may
be in an amount that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.04(e). Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall
not at any time be more than a total of ten Eurodollar Borrowings outstanding.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, three Business Days
Amended and Restated Credit Agreement
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before the date of the proposed Borrowing or (b) in the case of a Base Rate
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that any such notice of a
Revolving Credit Base Rate Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.04(e) may be given not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Credit
Borrowing, a Term Loan Borrowing or an Incremental Loan Borrowing
(including, if applicable, the respective Series of Incremental Loans to
which such Borrowing relates);
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be a Base Rate Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be a Base Rate Borrowing. If no Interest Period is specified
with respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section 2.03,
the Administrative Agent shall advise each Lender of the details thereof and of
the amount of such Lender's Loan to be made as part of the requested Borrowing.
Anything herein to the contrary notwithstanding, the initial
Borrowing hereunder shall be a Base Rate Borrowing.
SECTION 2.04. LETTERS OF CREDIT.
(a) General. Subject to the terms and conditions set forth
herein, in addition to the Revolving Credit Loans provided for in Section
2.01(a), the Borrower may request the issuance of Letters of Credit for its own
account by the Issuing Lender, in a form reasonably acceptable to the Issuing
Lender, at any time and from time to time during the Revolving Credit
Availability Period. Letters of Credit issued hereunder shall constitute
utilization of the
Amended and Restated Credit Agreement
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Revolving Credit Commitments. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower
to, or entered into by the Borrower with, the Issuing Lender relating to any
Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Lender) to the
Issuing Lender and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section 2.04), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the Issuing Lender, the Borrower also shall
submit a letter of credit application on the Issuing Lender's standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall
be issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the aggregate LC Exposure of the Issuing Lender
(determined for these purposes without giving effect to the participations
therein of the Revolving Credit Lenders pursuant to paragraph (d) of this
Section 2.04) shall not exceed $50,000,000 and (ii) the total Revolving Credit
Exposure shall not exceed the total Revolving Credit Commitments.
(c) Expiration Date. Each Letter of Credit shall expire
(without giving effect to any extension thereof by reason of an interruption of
business) at or prior to the close of business on the earlier of (i) the date
two years after the date of the issuance of such Letter of Credit (or, in the
case of any renewal or extension thereof, two years after such renewal or
extension) and (ii) the date that is five Business Days prior to the Revolving
Credit Maturity Date, provided that any such Letter of Credit may provide for
automatic extensions thereof to a date not later than one year beyond the
current expiration date, so long as such extended expiration date is not later
than the date five Business Days prior to the Revolving Credit Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) by the
Issuing Lender, and without any further action on the part of the Issuing
Lender, the Issuing Lender hereby grants to each Revolving Credit Lender, and
each Revolving Lender hereby acquires from the Issuing Lender, a participation
in such Letter of Credit equal to such Revolving Credit Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Lender, such Revolving
Credit Lender's Applicable Percentage of each LC Disbursement
Amended and Restated Credit Agreement
35
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made by the Issuing Lender and not reimbursed by the Borrower on the date due
as provided in paragraph (e) of this Section 2.04, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Revolving
Credit Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the
Issuing Lender in respect of such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on (i) the Business Day that the Borrower
receives notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., New York City time, or (ii) the Business Day immediately following
the day that the Borrower receives such notice, if such notice is not received
prior to such time, provided that, if such LC Disbursement is not less than
$500,000, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 that such payment be financed
with a Revolving Credit Base Rate Borrowing in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting Revolving Credit Base Rate Borrowing.
If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Credit Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Revolving Credit Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Revolving Credit Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from the Borrower, in the same manner as provided in Section 2.05 with
respect to Revolving Credit Loans made by such Lender (and Section 2.05 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Credit
Lenders), and the Administrative Agent shall promptly pay to the Issuing Lender
the amounts so received by it from the Revolving Credit Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Lender or, to the extent that the Revolving Credit
Lenders have made payments pursuant to this paragraph to reimburse the Issuing
Lender, then to such Lenders and the Issuing Lender as their interests may
appear. Any payment made by a Revolving Credit Lender pursuant to this
paragraph to reimburse the Issuing Lender for any LC Disbursement shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section 2.04
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any
Amended and Restated Credit Agreement
36
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respect or any statement therein being untrue or inaccurate in any respect,
(iii) payment by the Issuing Lender under a Letter of Credit against
presentation of a draft or other document that does not comply strictly with
the terms of such Letter of Credit and (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section 2.04, constitute a legal or equitable discharge
of the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing
Lender, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit by the Issuing Lender or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances referred to in
the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Lender;
provided that the foregoing shall not be construed to excuse the Issuing Lender
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Lender's gross negligence or willful misconduct
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that:
(i) the Issuing Lender may accept documents that appear on their
face to be in substantial compliance with the terms of a Letter of
Credit without responsibility for further investigation, regardless of
any notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit;
(ii) the Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such payment
if such documents are not in strict compliance with the terms of such
Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lender when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof (and the parties hereto hereby waive, to the extent permitted by
applicable law, any standard of care inconsistent with the foregoing).
(g) Disbursement Procedures. The Issuing Lender shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under any Letter of Credit. The Issuing Lender shall
promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing
Lender has made or will make an LC Disbursement thereunder; provided that any
failure to give or delay in giving such notice shall not relieve the Borrower
of its obligation to reimburse the Issuing Lender and the Revolving Credit
Lenders with respect to any such LC Disbursement.
Amended and Restated Credit Agreement
37
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(h) Interim Interest. If the Issuing Lender shall make any LC
Disbursement in respect of any Letter of Credit, then, unless the Borrower
shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that
the Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to Revolving Credit Base Rate Loans; provided that, if the Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section 2.04, then Section 2.11(c) shall apply. Interest accrued pursuant
to this paragraph shall be for the account of the Issuing Lender, except that
interest accrued on and after the date of payment by any Revolving Credit
Lender pursuant to paragraph (e) of this Section 2.04 to reimburse the Issuing
Lender shall be for the account of such Lender to the extent of such payment.
(i) Cash Collateralization. If either (i) an Event of Default
shall occur and be continuing and the Borrower receives notice from the
Administrative Agent or the Required Revolving Credit Lenders demanding the
deposit of cash collateral pursuant to this paragraph, or (ii) the Borrower
shall be required to provide cover for LC Exposure pursuant to Section 2.08 or
2.09(b), the Borrower shall immediately deposit into the Collateral Account
under and as defined in the Pledge Agreement an amount in cash equal to, in the
case of an Event of Default, the LC Exposure as of such date plus any accrued
and unpaid interest thereon and, in the case of cover pursuant to Section 2.08
or 2.09(b), the amount required under Section 2.08 or 2.09(b), as the case may
be; provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to any Credit Party described in clause (g) or
(h) of Article VIII. Such deposit shall be held by the Administrative Agent as
collateral in the first instance for the LC Exposure under this Agreement and
thereafter for the payment of any other obligations of the Credit Parties
hereunder.
(j) Existing Letters of Credit. There is outstanding on the
date hereof pursuant to the Existing Credit Agreement one or more letters of
credit issued by Chase (as the "Issuing Bank" thereunder) for the account of
the Borrower. Upon the Effective Date each of such letters of credit is hereby
designated a "Letter of Credit" under and for all purposes of this Agreement.
In that connection, the Borrower hereby represents and warrants to the Issuing
Lender, each Revolving Credit Lender and the Administrative Agent that each
such letter of credit satisfies the requirements of this Section 2.04
(including paragraph (c) above).
SECTION 2.05. FUNDING OF BORROWINGS.
(a) Each Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request; provided that Revolving Credit
Base Rate Loans
Amended and Restated Credit Agreement
38
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made to finance the reimbursement of an LC Disbursement under any Letter of
Credit as provided in Section 2.04(e) shall be remitted by the Administrative
Agent to the Issuing Lender.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
2.05 and may, in reliance upon such assumption, make available to the Borrower
a corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.06. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different
Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section 2.06. The
Borrower may elect different options for continuations and conversions with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.
(b) To make an election pursuant to this Section 2.06, the
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies (including, if applicable, the respective Series of Incremental
Loans to which such Interest Election Request relates) and, if different
options for continuations or conversions are being elected with respect
to different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
Amended and Restated Credit Agreement
39
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(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be a Base Rate
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each affected Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
a Base Rate Borrowing. Notwithstanding any contrary provision hereof, if an
Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Borrowing shall be converted to a Base Rate Borrowing at the
end of the Interest Period applicable thereto.
SECTION 2.07. TERMINATION AND REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, (i) the Revolving Credit
Commitments shall terminate at the close of business on the Revolving Credit
Maturity Date, (ii) the Term Loan Commitments shall terminate on the last day
of the Term Loan Availability Period and (iii) the Incremental Loan Commitments
shall terminate on the Incremental Loan Commitment Termination Date.
(b) The aggregate amount of the Revolving Credit Commitments
shall be automatically reduced at the close of business on each Revolving
Credit Commitment Reduction Date set forth in column (A) below to the amount
set forth in column (B) below opposite such Revolving Credit Commitment
Reduction Date:
Amended and Restated Credit Agreement
40
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(A) (B)
Revolving Credit Revolving Credit
Commitment Reduction Commitment Reduced
Date Falling on or to the Following
Nearest to: Amounts
------------------------- ---------------------
March 31, 2000 $243,750,000
June 30, 2000 $237,500,000
September 30, 2000 $231,250,000
December 31, 2000 $225,000,000
March 31, 2001 $218,750,000
June 30, 2001 $212,500,000
September 30, 2001 $206,250,000
December 31, 2001 $200,000,000
March 31, 2002 $190,625,000
June 30, 2002 $181,250,000
September 30, 2002 $171,875,000
December 31, 2002 $162,500,000
March 31, 2003 $153,125,000
June 30, 2003 $143,750,000
September 30, 2003 $134,375,000
December 31, 2003 $125,000,000
March 31, 2004 $112,500,000
June 30, 2004 $100,000,000
September 30, 2004 $ 87,500,000
December 31, 2004 $ 75,000,000
March 31, 2005 $ 56,250,000
June 30, 2005 $ 37,500,000
September 30, 2005 $ 18,750,000
December 31, 2005 $ 0
(c) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class (including the Commitments of any Series
of Incremental Loans); provided that (i) each reduction of the Commitments of
such Class shall be in an amount that is at least equal to $3,000,000 or any
greater multiple of $1,000,000, (ii) the Borrower shall not terminate or reduce
the Commitments of such Class if, after giving effect to any concurrent
prepayment of Loans in accordance with Section 2.09, the outstanding Loans of
such Class would exceed the total Commitments of such Class and (iii) the
Borrower shall not terminate or reduce the Revolving Credit Commitments if,
after giving effect to any concurrent prepayment
Amended and Restated Credit Agreement
41
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of the Loans in accordance with Section 2.09, the total Revolving Credit
Exposures would exceed the total Revolving Credit Commitments.
(d) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce Commitments under paragraph (c) of this Section
2.07 at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section 2.07 shall be irrevocable; provided that a
notice of termination of Commitments delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other credit facilities,
in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of Commitments shall
be permanent. Each reduction of Commitments of any Class shall be made ratably
among the Lenders in accordance with their respective Commitments of such
Class.
SECTION 2.08. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Revolving Credit Lender the then
unpaid principal amount of such Lender's Revolving Credit Loans on the
Revolving Credit Maturity Date. In addition, if following any Revolving Credit
Commitment Reduction Date the aggregate principal amount of the Revolving
Credit Exposure shall exceed the Revolving Credit Commitments, the Borrower
shall pay Revolving Credit Loans (and/or provide cover for LC Exposure as
specified in Section 2.04(i)) in an aggregate amount equal to such excess.
(b) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Term Loan Lenders the outstanding
principal amount of the Term Loans on each Principal Payment Date set forth
below in the aggregate principal amount set forth opposite such Principal
Payment Date:
Amended and Restated Credit Agreement
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Principal Payment Date Principal Amount
---------------------- ----------------
September 30, 2000 $7,500,000
December 31, 2000 $7,500,000
March 31, 2001 $3,750,000
June 30, 2001 $3,750,000
September 30, 2001 $3,750,000
December 31, 2001 $3,750,000
March 31, 2002 $7,500,000
June 30, 2002 $7,500,000
September 30, 2002 $7,500,000
December 31, 2002 $7,500,000
March 31, 2003 $7,500,000
June 30, 2003 $7,500,000
September 30, 2003 $7,500,000
December 31, 2003 $7,500,000
March 31, 2004 $7,500,000
June 30, 2004 $7,500,000
September 30, 2004 $7,500,000
December 31, 2004 $7,500,000
March 31, 2005 $7,500,000
June 30, 2005 $7,500,000
September 30, 2005 $7,500,000
December 31, 2005 $7,500,000
If the initial aggregate amount of the Term Loan Commitments exceeds the
aggregate principal amount of Term Loans that are outstanding at the end of the
Term Loan Availability Period, then the scheduled repayments of Borrowings to
be made pursuant to this Section shall be reduced ratably by an aggregate
amount equal to such excess. To the extent not previously paid, all Term Loans
shall be due and payable on the Term Loan Maturity Date.
(c) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Incremental Loan Lenders the
principal (if any) of the Incremental Loans of each Series outstanding on the
Incremental Loan Commitment Termination Date on the Principal Payment Dates set
forth below in installments equal to the percentage of such principal set forth
opposite such Principal Payment Date:
Amended and Restated Credit Agreement
43
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Principal Payment Date Percentage of Applicable
Falling on or Nearest to: Incremental Loan Balance
------------------------ ------------------------
March 31, 2001 1.0000000%
June 30, 2001 1.0000000%
September 30, 2001 1.0000000%
December 31, 2001 1.0000000%
March 31, 2002 1.5000000%
June 30, 2002 1.5000000%
September 30, 2002 1.5000000%
December 31, 2002 1.5000000%
March 31, 2003 1.5000000%
June 30, 2003 1.5000000%
September 30, 2003 1.5000000%
December 31, 2003 1.5000000%
March 31, 2004 2.0000000%
June 30, 2004 2.0000000%
September 30, 2004 2.0000000%
December 31, 2004 2.0000000%
March 31, 2005 2.0000000%
June 30, 2005 2.0000000%
September 30, 2005 2.0000000%
December 31, 2005 2.0000000%
March 31, 2006 0.0000000%
June 30, 2006 Remaining Balance
To the extent not previously paid, all Incremental Loans shall be due and
payable on the Incremental Loan Maturity Date.
(d) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(e) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof (and, in the case of Incremental Loans, the respective Series thereof)
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
Amended and Restated Credit Agreement
44
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(f) The entries made in the accounts maintained pursuant to
paragraph (c) or (d) of this Section 2.08 shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(g) Any Lender may request that Loans made by it be evidenced by
a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns)
and in a form approved by the Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its registered assigns).
SECTION 2.09. PREPAYMENT OF LOANS.
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part,
subject to prior notice in accordance with paragraph (d) of this Section 2.09.
Each prepayment of Term Loans or Incremental Loans shall be applied to the Term
Loans and Incremental Loans ratably in accordance with the respective
outstanding principal amounts of such Term Loans and Incremental Loans (and, in
the case of Incremental Loans, to all Series thereof ratably in accordance with
the respective outstanding principal amounts of such Series), and to the
installments thereof due on the two Quarterly Dates immediately following the
date of such prepayment, in direct order of maturity, and, thereafter, pro rata
in accordance with the respective aggregate principal amounts of the Term Loans
and Incremental Loans outstanding on the date of such prepayment.
(b) Mandatory Prepayments. The Borrower shall make prepayments
of the Loans hereunder (and reduce the Commitments hereunder) as follows:
(i) Casualty Events. Upon the date 270 days following the
receipt by the Borrower or any of its Subsidiaries of the proceeds of
insurance, condemnation award or other compensation in respect of any
Casualty Event affecting any property of the Borrower or any of its
Restricted Subsidiaries (or upon such earlier date as the Borrower or
such Restricted Subsidiary, as the case may be, shall have determined
not to repair or replace the property affected by such Casualty Event),
the Borrower shall prepay the Loans (and/or provide cover for LC
Exposure as specified in Section 2.04(i)), and the Commitments shall be
subject to automatic reduction, in an aggregate amount, if any, equal to
100% of the Net Available Proceeds of such Casualty Event not
theretofore applied or committed to be applied to the repair or
replacement of such property (it being understood that if Net Available
Proceeds committed to be applied are not in fact applied within twelve
months of the respective Casualty Event, then such Proceeds shall be
applied to the prepayment of Loans, cover for LC Exposure and reduction
of
Amended and Restated Credit Agreement
45
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Commitments as provided in this clause (i) at the expiration of such
twelve-month period), such prepayment and reduction to be effected in
each case in the manner and to the extent specified in clause (v) of
this Section 2.09(b).
(ii) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Required Lenders to any
Disposition not otherwise permitted hereunder, the Borrower agrees, on
or prior to the occurrence of any Disposition, to deliver to the
Administrative Agent a statement certified by a Financial Officer, in
form and detail reasonably satisfactory to the Administrative Agent, of
the estimated amount of the Net Cash Payments of such Disposition that
will (on the date of such Disposition) be received by the Borrower or
any of its Subsidiaries in cash and, unless the Borrower shall elect to
reinvest such Net Cash Payments as provided below, the Borrower will
prepay the Loans hereunder (and provide cover for LC Exposure as
specified in Section 2.04(i)), and the Commitments hereunder shall be
subject to automatic reduction, as follows:
(w) upon the date of such Disposition, in an aggregate
amount equal to 100% of such estimated amount of the Net Cash
Payments of such Disposition, to the extent received by the
Borrower or any of its Subsidiaries in cash on the date of such
Disposition; and
(x) thereafter, quarterly, on the date of the delivery by
the Borrower to the Administrative Agent pursuant to Section 6.01
of the financial statements for any quarterly fiscal period or
fiscal year, to the extent the Borrower or any of its
Subsidiaries shall receive Net Cash Payments during the quarterly
fiscal period ending on the date of such financial statements in
cash under deferred payment arrangements or Disposition
Investments entered into or received in connection with any
Disposition, an amount equal to (A) 100% of the aggregate amount
of such Net Cash Payments minus (B) any transaction expenses
associated with Dispositions and not previously deducted in the
determination of Net Cash Payments plus (or minus, as the case
may be) (C) any other adjustment received or paid by the Borrower
or any of its Subsidiaries pursuant to the respective agreements
giving rise to Dispositions and not previously taken into account
in the determination of the Net Cash Payments of Dispositions,
provided that if prior to the date upon which the Borrower would
otherwise be required to make a prepayment under this clause (x)
with respect to any quarterly fiscal period the aggregate amount
of such Net Cash Payments (after giving effect to the adjustments
provided for in this clause (x)) shall exceed $5,000,000, then
the Borrower shall within three Business Days make a prepayment
under this clause (x) in an amount equal to such required
prepayment.
Prepayments of Loans (and cover for LC Exposure) and reductions of
Commitments shall be effected in each case in the manner and to the
extent specified in clause (v) of this Section 2.09(b).
Notwithstanding the foregoing, the Borrower shall not be required
to make a prepayment (or provide cover) pursuant to this Section
2.09(b)(ii) with respect to the Net
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Cash Payments from any Disposition in the event that the Borrower
advises the Administrative Agent at the time a prepayment is required to
be made under the foregoing clauses (w) or (x) that it intends to
reinvest such Net Cash Payments into replacement assets pursuant to one
or more Capital Expenditures, Logo Acquisition Expenditures or
Acquisitions permitted hereunder, so long as:
(y) such Net Cash Payments are either (A) placed by the
Borrower into a segregated deposit account pending such
reinvestment or (B) applied by the Borrower to the prepayment of
Revolving Credit Loans hereunder (in which event the Borrower
agrees to advise the Administrative Agent in writing at the time
of such prepayment of Revolving Credit Loans that such prepayment
is being made from the proceeds of a Disposition and that, as
contemplated by the second paragraph of Section 2.01(a), a
portion of the Revolving Credit Commitments equal to the amount
of such prepayment gives rise to a Reserved Commitment Amount
that shall be available hereunder only for purposes of making
Capital Expenditures, Logo Acquisition Expenditures or
Acquisitions permitted hereunder or to make prepayments of Loans
under clause (z)(B) below), and
(z) the Net Cash Payments from any Disposition are in
fact so reinvested within twelve months of such Disposition (it
being understood that, in the event Net Cash Payments from more
than one Disposition are deposited into a segregated deposit
account or applied to the prepayment of Revolving Credit Loans as
provided in clause (y) above, such Net Cash Payments shall be
deemed to be applied (or, as the case may be, Revolving Credit
Loans utilizing the Reserved Commitment Amount shall be deemed to
be made) in the same order in which such Dispositions occurred
and, accordingly, (A) any such Net Cash Payments so held for more
than twelve months shall be forthwith applied to the prepayment
of Loans (and cover for LC Exposure) and reductions of
Commitments as provided in clause (v) of this Section 2.09(b) and
(B) any Reserved Commitment Amount that remains so unutilized for
twelve months shall be utilized through the borrowing by the
Borrower of Revolving Credit Loans the proceeds of which shall be
applied to the prepayment of Loans (and cover for LC Exposure)
and reductions of Commitments as provided in clause (v) of this
Section 2.09(b)).
In the event that any Reserved Commitment Amount with respect to
any Disposition shall remain unutilized for twelve months and the
Borrower shall for any reason not borrow Revolving Credit Loans the
proceeds of which are applied to the prepayment of Loans (and cover for
LC Exposure) and reductions of Commitments as provided above in this
clause (ii), the Revolving Credit Lenders agree (which agreement shall
be absolute and unconditional, regardless of whether or not the
conditions to a borrowing of Revolving Credit Loans hereunder shall have
been satisfied and regardless of the occurrence or continuance of any
Event of Default, including any Event of Default described in paragraphs
(g) or (h) of Article VIII) to purchase participations in the Loans of
the Term Loan Lenders and Incremental Loan Lenders in amounts equivalent
to the
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amount of the respective prepayments that each of such Lenders would
have received had such borrowing of Revolving Credit Loans occurred as
provided above.
Anything herein to the contrary notwithstanding, the Borrower
shall not be required to make any prepayment pursuant to this clause
(ii) with respect to the first $20,000,000 of Net Cash Payments.
(iii) Excess Cash Flow. Not later than the date 100 days after
the end of each fiscal year of the Borrower beginning with Excess Cash
Flow for the fiscal year ending December 31, 2000, the Borrower shall
prepay the Loans (and/or provide cover for LC Exposure as specified in
Section 2.04(i)), and the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to the excess of (A) 50% of
Excess Cash Flow for such fiscal year over (B) the aggregate amount of
prepayments of Term Loans and Incremental Loans made during such fiscal
year pursuant to Section 2.09(a) (other than that portion, if any, of
such prepayments applied to installments of the Term Loans and
Incremental Loans falling due in such fiscal year) and, after the
payment in full of the Term Loans and Incremental Loans, the aggregate
amount of voluntary reductions of Revolving Credit Commitments made
during such fiscal year pursuant to Section 2.07(c), such prepayment and
reduction to be effected in each case in the manner and to the extent
specified in clause (v) of this Section 2.09(b); provided that if the
Total Debt Ratio as of the last day of such fiscal year is less than
5.00 to 1, the Borrower shall not be required to make a prepayment under
this clause (iii) for such fiscal year.
(iv) Change of Control. Upon the occurrence of any "Change of
Control" under and as defined in the Senior Subordinated Notes Indenture
or New Senior Subordinated Notes Indenture (or any similar provision in
the applicable governing agreement for any Refunding Indebtedness), the
Borrower shall prepay the Loans hereunder (and provide cover for LC
Exposure as specified in Section 2.04(i)), and the Commitments hereunder
shall be automatically terminated.
(v) Application. Upon the occurrence of any of the events
described in the above paragraphs of this Section 2.09(b), the amount of
the required prepayment of Loans and reduction of Commitments shall be
allocated between the different Classes of Loans and Commitments
hereunder by first determining the sum of the outstanding amount of the
Term Loans and unutilized Term Loan Commitments (such sum being herein
called the "Relevant Term Loan Amount"), and, for each Series of
Incremental Loans, the outstanding amount of the Incremental Loans of
such Series and the unutilized Incremental Term Loan Commitments of such
Series (such sum, for any Series of Incremental Loans, being herein
called the "Relevant Incremental Loan Amount" for such Series), and,
following such determination, prepaying Loans and reducing Commitments
in the following order:
(A) first, the unutilized Term Loan Commitments and
unutilized Incremental Loan Commitments of each Series shall be
reduced ratably in accordance with the Relevant Term Loan Amount
and Relevant Incremental Loan Amounts of each Series, and the
Term Loans, and Incremental Loans of each
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Series, shall be concurrently prepaid in an amount equal to such
reduction, provided that if the amount of such prepayment of any
Class of Loans shall exceed the aggregate amount of such Class of
Loans outstanding on the date of such required prepayment, the
excess thereof shall be applied first, ratably to the prepayment
(without reduction of Commitments, if any) of the Loans of each
other Class of Term Loans and Incremental Loans of any Series, as
applicable, outstanding on such date and second, after the
prepayment in full of all Term Loans and Incremental Loans, to
the prepayment (without reduction of Commitments) of Revolving
Credit Loans; and
(B) second, after prepayment in full of the outstanding
Term Loans and Incremental Loans of each Series (and the
reduction in full of all outstanding Term Loan and Incremental
Loan Commitments of each Series), to the reduction of Revolving
Credit Commitments (and to the extent that, after giving effect
to such reduction, the aggregate principal amount of Revolving
Credit Loans, together with LC Exposure, exceeds the Revolving
Credit Commitments, to the simultaneous prepayment of, first,
Revolving Credit Loans, and, second, cover for LC Exposure, in an
amount equal to such required reduction of Revolving Credit
Commitments).
Each prepayment of Term Loans and Incremental Loans of any Series shall
be applied to the installments of principal thereof ratably in
accordance with the respective principal amounts of such installments.
(c) Notification of Prepayments. The Borrower shall notify the
Administrative Agent by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of
prepayment or (ii) in the case of prepayment of a Base Rate Borrowing, not
later than 11:00 a.m., New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof
to be prepaid; provided that, if a notice of prepayment is given in connection
with a conditional notice of termination of Commitments as contemplated by
Section 2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such notice relating to a Borrowing of a particular Class, the
Administrative Agent shall advise the Lenders holding Loans of such Class of
the contents thereof. Each partial prepayment of any Borrowing under paragraph
(a) of this Section 2.09 shall be in an amount that would be permitted in the
case of an advance of a Borrowing of the same Type as provided in Section 2.02.
(d) Prepayments Accompanied by Interest. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.11.
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SECTION 2.10. FEES.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at a rate per
annum equal to 1/2 of 1% on the daily average unused amount of the Revolving
Credit Commitments and Term Loan Commitments of such Lender during the period
from and including the date hereof to but excluding the date on which such
Revolving Credit Commitment or Term Loan Commitment terminates; provided that
if the sum of the Revolving Credit Loans and Term Loans is greater than 50% of
the initial Revolving Credit Commitments and Term Loan Commitments hereunder,
the commitment fee shall accrue at a rate per annum equal to 3/8 of 1%.
Accrued commitment fees shall be payable in arrears on each Quarterly Date and,
in respect of any Revolving Credit Commitments or Term Loan Commitments, on the
date such Revolving Credit Commitments or Term Loan Commitments terminate,
commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Borrower agrees to pay with respect to Letters of Credit
outstanding hereunder the following fees:
(i) to the Administrative Agent for the account of each
Revolving Credit Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate per
annum equal to the Applicable Margin used in determining interest on
Revolving Credit Eurodollar Loans on the average daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such
Lender's Revolving Credit Commitment terminates and the date on which
there shall no longer be any Letters of Credit outstanding hereunder,
and
(ii) to the Issuing Lender (x) a fronting fee, which shall
accrue at the rate of 3/16 of 1% per annum on the average daily amount
of the LC Exposure of the Issuing Lender (determined for these purposes
without giving effect to the participations therein of the Revolving
Credit Lenders pursuant to paragraph (d) of Section 2.04, and excluding
any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding
the later of the date of termination of the Revolving Credit Commitments
and the date on which there shall no longer be any Letters of Credit of
the Issuing Lender outstanding hereunder, and (y) the Issuing Lender's
standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.
Accrued participation fees and fronting fees shall be payable in arrears on
each Quarterly Date and on the date the Revolving Credit Commitments terminate,
commencing on the first such date to occur after the date hereof, provided that
any such fees accruing after the date on which the Revolving Credit Commitments
terminate shall be payable on demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
Amended and Restated Credit Agreement
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(c) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
in writing between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution to
the Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances, absent manifest error in the determination thereof.
SECTION 2.11. INTEREST.
(a) The Loans comprising each Base Rate Borrowing shall bear
interest at a rate per annum equal to the Adjusted Base Rate plus the
Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, (i) except as otherwise
provided in clause (ii) below, during the period when any Default shall have
occurred and be continuing for a period of 90 or more days (and the
Administrative Agent, acting on the instructions of the Required Lenders, shall
have notified the Borrower that the Post-Default Rate shall apply), the
principal of all Loans hereunder shall bear interest, after as well as before
judgment, at a rate per annum equal to 2% plus the Applicable Margin for Base
Rate Loans (the "Post-Default Rate") and (ii) if any principal on any Loan
payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, the principal of all Loans hereunder
shall bear interest, after as well as before judgment, at a rate per annum
equal to the Post-Default Rate plus 1%.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (c) of this Section 2.11 shall be payable on demand, (ii)
in the event of any repayment or prepayment of any Eurodollar Loan (or the
repayment or prepayment in full of the Term Loans or Incremental Loans),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment, (iii) in the event of any conversion
of any Eurodollar Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion, (iv) all accrued interest on Revolving Credit Loans shall
be payable upon termination of the Revolving Credit Commitments.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Adjusted
Base Rate at times when the Adjusted Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year),
and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Adjusted
Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent
manifest error.
Amended and Restated Credit Agreement
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SECTION 2.12. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(b) if such Borrowing is of a particular Class of Loans
(including of a particular Series of Incremental Loans), the
Administrative Agent is advised by the Required Revolving Credit
Lenders, the Required Term Loan Lenders or the Required Incremental Loan
Lenders of such Series, as the case may be, that the Adjusted LIBO Rate
or the LIBO Rate, as applicable, for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans of such Class included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
affected Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and such Lenders that
the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any such Borrowing to, or
continuation of any such Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.13. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Lender; or
(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise), then
the Borrower will pay to such Lender or the Issuing Lender, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
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(b) If any Lender or the Issuing Lender reasonably determines
that any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's or the Issuing Lender's
capital or on the capital of such Lender's or the Issuing Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued the Issuing Lender, to a level below that which such Lender or
the Issuing Lender or such Lender's or the Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Lender's policies and the policies of such Lender's or
the Issuing Lender's holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender or the Issuing Lender,
as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Lender, or such Lender's or the Issuing Lender's holding
company, for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Lender setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Lender or its holding company, as the case may be, as specified in paragraph
(a) or (b) of this Section 2.13 shall be delivered to the Borrower and shall be
conclusive so long as it reflects a reasonable basis for the calculation of the
amounts set forth therein and does not contain any manifest error. The
Borrower shall pay such Lender or the Issuing Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Lender to demand compensation pursuant to this Section 2.13 shall not
constitute a waiver of such Lender's or the Issuing Lender's right to demand
such compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Lender pursuant to this Section 2.13 for any
increased costs or reductions incurred more than six months prior to the date
that such Lender or the Issuing Lender, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender's or the Issuing Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.14. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
and is revoked in accordance herewith) or (d) the assignment of any Eurodollar
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.17, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event.
Amended and Restated Credit Agreement
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In the case of a Eurodollar Loan, the loss to any Lender
attributable to any such event shall be deemed to include an amount determined
by such Lender to be equal to the excess, if any, of
(i) the amount of interest that such Lender would pay for a
deposit equal to the principal amount of such Loan for the period from
the date of such payment, conversion, failure or assignment to the last
day of the then current Interest Period for such Loan (or, in the case
of a failure to borrow, convert or continue, the duration of the
Interest Period that would have resulted from such borrowing, conversion
or continuation) if the interest rate payable on such deposit were equal
to the Adjusted LIBO Rate for such Interest Period,
over
(ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid
by such Lender (or an affiliate of such Lender) for U.S. dollar deposits
from other banks in the eurodollar market at the commencement of such
period.
A certificate of any Lender setting forth any amount or amounts that such
Lender is entitled to receive pursuant to this Section 2.14 shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.15. TAXES
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided that if the Borrower shall
be required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.15) the Administrative Agent, Lender or the
Issuing Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) In addition the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Lender, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.15) paid by the Administrative Agent, such
Lender or the Issuing Lender, as the case may be (and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto during the
period prior
Amended and Restated Credit Agreement
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to the Borrower making the payment demanded under this paragraph (c)), whether
or not such Indemnified Taxes or Other Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender or the Issuing Lender, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
SECTION 2.16. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or under Section 2.13, 2.14 or 2.15, or otherwise) prior to
12:00 noon, New York City time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to
have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at such of its offices in New York City as shall be
notified to the relevant parties from time to time, except payments to be made
directly to the Issuing Lender as expressly provided herein and except that
payments pursuant to Sections 2.13, 2.14, 2.15 and 10.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof, and the Borrower
shall have no liability in the event timely or correct distribution of such
payments is not so made. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All
payments hereunder shall be made in U.S. dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
Amended and Restated Credit Agreement
55
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interest and fees then due to such parties, and (ii) second, to pay principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed
LC Disbursements then due to such parties.
(c) Except to the extent otherwise provided herein: (i) each
borrowing of Loans of a particular Class (including of a particular Series of
Incremental Loans) from the Lenders under Section 2.01 shall be made from the
relevant Lenders, each payment of commitment fee under Section 2.10 in respect
of Commitments of a particular Class (including of a particular Series of
Incremental Loans) shall be made for account of the relevant Lenders, and each
termination or reduction of the amount of the Commitments of a particular Class
(including of a particular Series of Incremental Loans) under Section 2.03
shall be applied to the respective Commitments of such Class of the relevant
Lenders, pro rata according to the amounts of their respective Commitments of
such Class; (ii) Eurodollar Loans of any Class (including of a particular
Series of Incremental Loans) having the same Interest Period shall be allocated
pro rata among the relevant Lenders according to the amounts of their
Commitments or such Class (in the case of the making of Loans) or their
respective Loans of such Class (in the case of conversions and continuations of
Loans); (iii) each payment or prepayment by the Borrower of principal of Loans
of a particular Class (including of a particular Series of Incremental Loans)
shall be made for account of the relevant Lenders pro rata in accordance with
the respective unpaid principal amounts of the Loans of such Class held by
them; (iv) each payment by the Borrower of interest on Loans of a particular
Class (including of a particular Series of Incremental Loans) shall be made for
account of the relevant Lenders pro rata in accordance with the amounts of
interest on such Loans then due and payable to the respective Lenders; and (v)
each payment by the Borrower of participation fees in respect of Letters of
Credit shall be made for the account of the Revolving Credit Lenders pro rata
in accordance with the amount of participation fees then due and payable to the
Revolving Credit Lenders.
(d) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans (or participations in LC Disbursements) of any
Class resulting in such Lender receiving payment of a greater proportion of the
aggregate principal amount of its Loans (and participations in LC
Disbursements) of such Class and accrued interest thereon than the proportion
of such amounts received by any other Lender of any other Class, then the
Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans (and LC Disbursements) of the other Lenders
to the extent necessary so that the benefit of such payments shall be shared by
all the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans (and participations in LC
Disbursements); provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans (or participations in LC Disbursements) to any assignee or participant,
other than to any Credit Party or any subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law,
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that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Lender
entitled thereto (the "Applicable Recipient") hereunder that the Borrower will
not make such payment, the Administrative Agent may assume that the Borrower
has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Applicable Recipient the amount due.
In such event, if the Borrower has not in fact made such payment, then each
Applicable Recipient severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Applicable Recipient with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the Federal Funds Effective Rate.
(f) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(d), 2.04(e), 2.05(b) or 2.16(e), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Section until all such unsatisfied obligations are fully paid.
SECTION 2.17. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations, hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative
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Agent (and, if a Revolving Credit Commitment is being assigned, the Issuing
Lender), which consents shall not unreasonably be withheld or delayed, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans (and participations in LC Disbursements), accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation
under Section 2.13 or payments required to be made pursuant to Section 2.15,
such assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
ARTICLE III
Guarantee by Subsidiary Guarantors
SECTION 3.01. THE GUARANTEE. Each Subsidiary Guarantor hereby
jointly and severally guarantees to each Lender, the Issuing Lender and the
Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by the Lenders to
the Borrower, all LC Disbursements and all other amounts from time to time
owing to the Lenders, the Issuing Lender or the Administrative Agent by the
Borrower hereunder or under any other Loan Document, and all obligations of the
Borrower to any Lender under any Hedging Agreement, in each case strictly in
accordance with the terms thereof (such obligations being herein collectively
called the "Guaranteed Obligations"). Each Subsidiary Guarantor hereby further
agrees that if the Borrower shall fail to pay in full when due (whether at
stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, each Subsidiary Guarantor will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration
or otherwise) in accordance with the terms of such extension or renewal.
SECTION 3.02. OBLIGATIONS UNCONDITIONAL. The obligations of
each Subsidiary Guarantor under Section 3.01 are absolute and unconditional
irrespective of the value, genuineness, validity, regularity or enforceability
of this Agreement, the other Loan Documents or any other agreement or
instrument referred to herein or therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 3.02 that the obligations of the Subsidiary
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Subsidiary Guarantors hereunder which shall remain
absolute and unconditional as described above:
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(i) at any time or from time to time, without notice to such
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions hereof
or of the other Loan Documents or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right hereunder or under
the other Loan Documents or any other agreement or instrument referred
to herein or therein shall be waived or any other guarantee of any of
the Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Administrative Agent, the Issuing Lender or any Lender or Lenders as
security for any of the Guaranteed Obligations shall fail to be
perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent, the Issuing Lender or any Lender exhaust any right, power
or remedy or proceed against the Borrower hereunder or under the other Loan
Documents or any other agreement or instrument referred to herein or therein,
or against any other Person under any other guarantee of, or security for, any
of the Guaranteed Obligations.
SECTION 3.03. REINSTATEMENT. The obligations of each Subsidiary
Guarantor under this Article III shall be automatically reinstated if and to
the extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of the Guaranteed Obligations, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise, and
each of the Subsidiary Guarantors agrees that it will indemnify the
Administrative Agent, the Issuing Lender and each Lender on demand for all
reasonable costs and expenses (including fees of counsel) incurred by the
Administrative Agent, any Lender or the Issuing Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
SECTION 3.04. SUBROGATION. Each Subsidiary Guarantor hereby
waives all rights of subrogation or contribution, whether arising by contract
or operation of law (including, without limitation, any such right arising
under the Federal Bankruptcy Code of 1978, as amended) or otherwise by reason
of any payment by it pursuant to the provisions of this Article III and further
agrees with the Borrower for the benefit of each of its creditors (including,
without limitation, the Issuing Lender, each Lender and the Administrative
Agent) that any such payment by it shall constitute a contribution of capital
by such Subsidiary Guarantor to the Borrower.
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SECTION 3.05. REMEDIES. Each Subsidiary Guarantor agrees that,
as between such Subsidiary Guarantor and the Lenders, the obligations of the
Borrower hereunder may be declared to be forthwith due and payable as provided
in Article VIII or Section 2.04(i), as applicable (and shall be deemed to have
become automatically due and payable in the circumstances provided in Article
VIII or Section 2.04(i), as applicable) for purposes of Section 3.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable)
as against the Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by such Subsidiary Guarantor for purposes of Section
3.01.
SECTION 3.06. INSTRUMENT FOR THE PAYMENT OF MONEY. Each
Subsidiary Guarantor hereby acknowledges that the guarantee in this Article III
constitutes an instrument for the payment of money, and consents and agrees
that the Issuing Lender, any Lender or the Administrative Agent, at its sole
option, in the event of a dispute by the Subsidiary Guarantors in the payment
of any moneys due hereunder, shall have the right to bring motion-action under
New York CPLR Section 3213.
SECTION 3.07. CONTINUING GUARANTEE. The guarantee in this
Article III is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.
SECTION 3.08. RIGHTS OF CONTRIBUTION. The Subsidiary Guarantors
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an Excess Funding Guarantor (as defined below) by reason of the payment
by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section 3.08
shall be subordinate and subject in right of payment to the prior payment in
full of the obligations of such Subsidiary Guarantor under the other provisions
of this Article III and such Excess Funding Guarantor shall not exercise any
right or remedy with respect to such excess until payment and satisfaction in
full of all of such obligations.
For purposes of this Section 3.08, (i) "Excess Funding Guarantor"
means, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that
has paid an amount in excess of its Pro Rata Share of such Guaranteed
Obligations, (ii) "Excess Payment" means, in respect of any Guaranteed
Obligations, the amount paid by an Excess Funding Guarantor in excess of its
Pro Rata Share of such Guaranteed Obligations and (iii) "Pro Rata Share" means,
for any Subsidiary Guarantor, the ratio (expressed as a percentage) of (x) the
amount by which the aggregate present fair saleable value of all properties of
such Subsidiary Guarantor (excluding any shares of stock of, or ownership
interest in, any other Subsidiary Guarantor) exceeds the amount of all the
debts and liabilities of such Subsidiary Guarantor (including contingent,
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subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Subsidiary Guarantor hereunder and any obligations of any
other Subsidiary Guarantor that have been Guaranteed by such Subsidiary
Guarantor) to (y) the amount by which the aggregate fair saleable value of all
properties of all of the Credit Parties exceeds the amount of all the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of the Borrower and the Subsidiary
Guarantors hereunder and under the other Loan Documents) of all of the Credit
Parties, determined (A) with respect to any Subsidiary Guarantor that is a
party hereto on the Effective Date, as of the Effective Date, and (B) with
respect to any other Subsidiary Guarantor, as of the date such Subsidiary
Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In
any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the
rights of creditors generally, if the obligations of any Subsidiary Guarantor
under Section 3.01 would otherwise, taking into account the provisions of
Section 3.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 3.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or
any other Person, be automatically limited and reduced to the highest amount
that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
ARTICLE IV
Representations and Warranties
The Borrower and each Subsidiary Guarantor represents and
warrants to the Lenders and the Administrative Agent, as to itself and each of
its Subsidiaries, that:
SECTION 4.01. ORGANIZATION; POWERS. The Borrower and each of
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of its organization. The Borrower and each of its Subsidiaries has
all requisite power and authority under its organizational documents to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 4.02. AUTHORIZATION; ENFORCEABILITY. The Transactions
are within the corporate power of each Credit Party and have been duly
authorized by all necessary corporate and, if required, stockholder action on
the part of such Credit Party. This Agreement has been duly executed and
delivered by each Credit Party and constitutes a legal, valid and binding
obligation of such Credit Party, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting
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creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 4.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, (b) will not
violate any applicable law, policy or regulation or the charter, by-laws or
other organizational documents of any Credit Party or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon any Credit Party, or any
of its assets, or give rise to a right thereunder to require any payment to be
made by any Credit Party, and (d) except for the Liens created by the Security
Documents, will not result in the creation or imposition of any Lien on any
asset of the Credit Parties.
SECTION 4.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) The Borrower has heretofore delivered to the Lenders the
following financial statements:
(i) the audited consolidated balance sheet and statements of
earnings (loss), stockholders' deficit and cash flows of the Borrower
and its Subsidiaries (and, separately stated, of the Borrower and its
Restricted Subsidiaries) as of and for the fiscal year ended December
31,1997, reported on by KPMG Peat Marwick LLP, independent public
accountants; and
(ii) the unaudited consolidated balance sheet and statements of
earnings (loss), stockholders' deficit and cash flows of the Borrower
and its Subsidiaries (and, separately stated, of the Borrower and its
Restricted Subsidiaries) as of and for the fiscal quarter ended March
31, 1998, certified by a Financial Officer of the Borrower.
Such financial statements present fairly, in all material respects, the
respective consolidated financial position and results of operations and cash
flows of the respective entities as of such respective dates and for such
periods in accordance with generally accepted accounting principles, subject to
year-end audit adjustments and the absence of footnotes in the case of such
unaudited statements.
(b) Since December 31, 1997, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial
or otherwise, of the Borrower and its Restricted Subsidiaries taken as a whole
from that set forth in said consolidated financial statements referred to in
clause (i) of paragraph (a) above.
(c) None of the Borrowers nor any of its Subsidiaries has on the
date hereof any contingent liabilities, liabilities for taxes, unusual forward
or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments in each case that are material, except as referred to
or reflected or provided for in the balance sheets as at December 31, 1997
referred to above.
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(d) Any reprogramming required to permit the proper functioning,
in and following the year 2000, of (i) the computer systems of the Borrower and
its Subsidiaries and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the systems of the
Borrower and its Subsidiaries interface) and the testing of all such systems
and equipment, as so reprogrammed, will be completed by January 1, 1999. The
cost to the Borrower and its Subsidiaries of such reprogramming and testing and
of the reasonably foreseeable consequences of year 2000 to the Borrower and its
Subsidiaries (including reprogramming errors and the failure of others' systems
or equipment) will not result in a Default or a Material Adverse Effect.
Except for such of the reprogramming referred to in the preceding sentence as
may be necessary, the computer and management information systems of the
Borrower and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient to
permit the Borrower and its Subsidiaries to conduct its business without a
Material Adverse Effect.
SECTION 4.05. PROPERTIES.
(a) Each of the Borrower and its Restricted Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do
not interfere with its ability to conduct its business as currently conducted
or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Restricted Subsidiaries owns,
or is licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, and the use thereof by
the Borrower and its Subsidiaries does not infringe upon the rights of any
other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.06. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of
any of the Credit Parties, threatened against or affecting the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve any of the Basic
Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect, none of the Borrower nor
any of its Subsidiaries (i) has failed to comply with any Environmental Law or
to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or any inquiry, allegation, notice or other
communication from any Governmental Authority
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concerning its compliance with any Environmental Law or (iv) knows of any basis
for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 4.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations,
policies and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it
or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.08. INVESTMENT AND HOLDING COMPANY STATUS. No Credit
Party nor any of their respective subsidiaries is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940, as amended, or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as amended.
SECTION 4.09. TAXES. Each of the Credit Parties and their
respective Subsidiaries has timely filed or caused to be filed all Tax returns
and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which such Credit
Party has set aside on its books adequate reserves with respect thereto in
accordance with GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $1,000,000 the fair market value
of the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts,
exceed by more than $1,000,000 the fair market value of the assets of all such
underfunded Plans.
SECTION 4.11. DISCLOSURE. The Credit Parties have disclosed to
the Lenders all agreements, instruments and corporate or other restrictions to
which any Credit Party is subject, and all other matters known to any Credit
Party, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Credit
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Parties to the Administrative Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement and the other Basic
Documents (including, without limitation, the information (other than
information in respect of the Martin Acquisition, which is not going to occur)
set forth in the Confidential Information Memorandum) or included herein or
therein or delivered pursuant hereto or thereto, when taken as a whole do not
contain any untrue statement of material fact or omit to state any material
fact necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Borrower and its
Subsidiaries to the Administrative Agent and the Lenders in connection with
this Agreement and the other Basic Documents and the transactions contemplated
hereby and thereby will be true, complete and accurate in every material
respect, or (in the case of projections) based on reasonable estimates, on the
date as of which such information is stated or certified. There is no fact
known to the Borrower that could reasonably be expected to have a Material
Adverse Effect that has not been disclosed herein, in the other Basic Documents
or in a report, financial statement, exhibit, schedule, disclosure letter or
other writing furnished to the Lenders for use in connection with the
transactions contemplated hereby or thereby.
SECTION 4.12. CAPITALIZATION. The authorized capital stock of
the Borrower consists, on the date hereof, of an aggregate of 113,510,000
shares consisting of (i) 75,000,000 shares of Class A common stock, with par
value of $.001 per share, of which, as of the date hereof, 35,750,028 shares
are duly and validly issued and outstanding, each of which shares is fully paid
and nonassessable, (ii) 37,500,000 shares of Class B common stock, with par
value of $.001 per share, of which, as of the date hereof, 18,117,443 shares
are duly and validly issued and outstanding, each of which shares is fully paid
and nonassessable, (iii) 10,000 shares of Class A preferred stock, with par
value of $638.00 per share, of which, as of the date hereof, 5,719 shares are
duly and validly issued and outstanding, each of which shares is fully paid and
nonassessable and (iv) 1,000,000 shares of undesignated preferred stock, with
par value of $.001 per share, of which, as of the date hereof, no shares are
issued and outstanding, provided that none of the foregoing figures takes into
account any exercise of employee stock options after June 29, 1998. Except as
set forth in Schedule 4.12, as of the date hereof, (x) there are no outstanding
Equity Rights with respect to the Borrower and (y) there are no outstanding
obligations of the Borrower or any of its Subsidiaries to repurchase, redeem,
or otherwise acquire any shares of capital stock of the Borrower nor are there
any outstanding obligations of the Borrower or any of its Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value
of the Borrower or any of its Subsidiaries.
SECTION 4.13. MATERIAL AGREEMENTS AND LIENS.
(a) Schedule 4.13 hereto is a complete and correct list, as of
the date of this Agreement, of each credit agreement, loan agreement,
indenture, guarantee, letter of credit or other arrangement (other than this
Agreement or the Existing Credit Agreement) providing for or otherwise relating
to any Indebtedness or any extension of credit (or commitment for any extension
of credit) to, or guarantee by, the Borrower or any of its Subsidiaries the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $1,000,000, and
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the aggregate principal or face amount outstanding or that may become
outstanding under each such arrangement is correctly described in Schedule
4.13.
(b) Schedule 4.13 hereto is a complete and correct list, as of
the date of this Agreement, of each Lien securing Indebtedness of any Person
the aggregate principal or face amount of which equals or exceeds (or may equal
or exceed) $1,000,000 and covering any property of the Borrower or any of its
Subsidiaries, and the aggregate Indebtedness secured (or which may be secured)
by each such Lien and the Property covered by each such Lien is correctly
described in Schedule 4.13.
SECTION 4.14. SUBSIDIARIES.
(a) Set forth in Schedule 4.14 is a complete and correct list of
all of the Subsidiaries of the Credit Parties as of the date hereof together
with, for each such Subsidiary, (i) the jurisdiction of organization of such
Subsidiary, (ii) each Person holding ownership interests in such Subsidiary,
(iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests and (iv) whether such Subsidiary is a Restricted Subsidiary or
Unrestricted Subsidiary. Except as disclosed in Schedule 4.14, (i) each Credit
Party and its respective Subsidiaries owns, free and clear of Liens (other than
Liens created pursuant to the Security Documents), and has the unencumbered
right to vote, all outstanding ownership interests in each Person shown to be
held by it in Schedule 4.14, (y) all of the issued and outstanding capital
stock of each such Person organized as a corporation is validly issued, fully
paid and nonassessable and (z) there are no outstanding Equity Rights with
respect to such Person. Each Subsidiary identified on said Schedule 4.14 as an
"Unrestricted Subsidiary" qualifies as an Unrestricted Subsidiary under the
criteria therefor set forth in Section 1.05.
(b) Except as set forth in Schedule 4.14, as of the date of this
Agreement, none of the Restricted Subsidiaries of the Borrower is subject to
any indenture, agreement, instrument or other arrangement containing any
provision of the type described in Section 7.08, other than any such provision
the effect of which has been unconditionally, irrevocably and permanently
waived and other than the prohibition on the sale, transfer, assignment,
mortgage, pledge, encumbrance or other disposition by MIL of its interest in
the Missouri Partnership.
ARTICLE V
Conditions
SECTION 5.01. EFFECTIVE DATE. The obligations of the Lenders to
make Loans, and of the Issuing Lender to issue Letters of Credit, hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.02):
(a) Counterparts of Agreement. The Administrative Agent (or
Special Counsel) shall have received from each party hereto either (i) a
counterpart of this Agreement
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signed on behalf of such party or (ii) written evidence satisfactory to
the Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
(b) Opinion of Counsel to Credit Parties. The Administrative
Agent (or Special Counsel) shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Kean, Miller, Hawthorne, D'Armond, McCowan &
Jarman, L.L.P., counsel to the Credit Parties, substantially in the form
of Exhibit B, and covering such matters relating to the Credit Parties,
this Agreement, the other Loan Documents or the Transactions as the
Required Lenders shall request (and each Credit Party hereby requests
such counsel to deliver such opinion).
(c) Opinion of Special Counsel. The Administrative Agent shall
have received a favorable written legal opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of
Special Counsel, substantially in the form of Exhibit C (and the
Administrative Agent requests Special Counsel to deliver such opinion).
(d) Corporate Matters. The Administrative Agent (or Special
Counsel) shall have received such documents and certificates as the
Administrative Agent or Special Counsel may reasonably request relating
to the organization, existence and good standing of each Credit Party,
the authorization of the Transactions and any other legal matters
relating to the Credit Parties, this Agreement, the other Loan Documents
or the Transactions, all in form and substance reasonably satisfactory
to the Administrative Agent and its counsel.
(e) Financial Officer Certificate. The Administrative Agent (or
Special Counsel) shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 5.03.
(f) Notes. The Administrative Agent (or Special Counsel) shall
have received for each Lender that shall have requested a promissory
note, a duly completed and executed promissory note for such Lender.
(g) Pledge Agreement. The Administrative Agent (or Special
Counsel) shall have received (i) from each Credit Party a counterpart of
the Pledge Agreement signed on behalf of such Credit Party and (ii) to
the extent not previously delivered under the Existing Credit Agreement,
the stock certificates identified under the name of such Credit Party in
Annex 1 thereto, accompanied by undated stock powers executed in blank.
In addition, each Credit Party shall have taken such other action
(including delivering to the Administrative Agent (i) for filing,
appropriately completed and duly executed copies of Uniform Commercial
Code financing statements and (ii) Uniform Commercial Code Searches) as
the Administrative Agent shall have requested in order to perfect the
security interests created pursuant to the Pledge Agreement.
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(h) Solvency Certificate. The Administrative Agent shall have
received a certificate from a Financial Officer of the Borrower to the
effect that, as of the Effective Date and after giving effect to the
initial Loans hereunder and to the other Transactions:
(i) the aggregate value of all properties of the Borrower
and its Subsidiaries at their present fair saleable value (i.e.,
the amount that may be realized within a reasonable time,
considered to be six months to one year, either through
collection or sale at the regular market value, conceiving the
latter as the amount that could be obtained for the property in
question within such period by a capable and diligent businessman
from an interested buyer who is willing to purchase under
ordinary selling conditions), exceed the amount of all the debts
and liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities) of the Borrower and its
Subsidiaries,
(ii) the Borrower and its Subsidiaries will not, on a
consolidated basis, have an unreasonably small capital with which
to conduct their business operations as heretofore conducted and
(iii) the Borrower and its Subsidiaries will have, on a
consolidated basis, sufficient cash flow to enable them to pay
their debts as they mature.
Such certificate shall include a statement to the effect that the
financial projections and underlying assumptions contained in such
analysis are, fair and reasonable and accurately computed.
(i) Insurance. The Administrative Agent shall have received a
certificate of a Financial Officer setting forth the insurance obtained
by the Borrower in accordance with the requirements of Section 6.05 and
stating that such insurance is in full force and effect and that all
premiums then due and payable thereon have been paid.
(j) Total Debt Ratio. The Administrative Agent shall have
received a certificate of a Financial Officer, in form and detail
satisfactory to the Administrative Agent, setting forth the Total Debt
Ratio as at the Effective Date (which shall in any event be less than
6.25 to 1).
(k) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent or any Lender
or Special Counsel shall have reasonably requested.
(l) Fees and Expenses. The Administrative Agent shall have
received all fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid
by the Borrower hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing,
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the obligations of the Lenders to make Loans, and of the Issuing Lender
to issue Letters of Credit, hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to
Section 10.02) at or prior to 12:00 p.m., New York City time, on July
31, 1998 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 5.02. INCREMENTAL LOAN BORROWINGS. The obligation of
each Incremental Loan Lender to make an Incremental Loan on the occasion of any
Borrowing is subject to the receipt by the Administrative Agent of evidence
satisfactory to it that after giving effect to such Borrowing and the other
transactions that are to occur on the date of such Borrowing (under the
assumption that such Borrowing and such other transactions had been consummated
on the first day of the respective periods for which calculations are to be
made under the covenants set forth in Section 7.09), the Borrower would have
been in compliance with the applicable provisions of Section 7.09, and a
Financial Officer shall have delivered a certificate to the foregoing effect to
the Administrative Agent.
SECTION 5.03. EACH EXTENSION OF CREDIT. The obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of the Issuing
Lender to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties. The representations and
warranties of each Credit Party set forth in this Agreement and the
other Loan Documents shall be true and correct on and as of the date of
such Borrowing, or (as applicable) the date of issuance, amendment,
renewal or extension of such Letter of Credit, both before and after
giving effect thereto and to the use of the proceeds thereof (or, if any
such representation or warranty is expressly stated to have been made as
of a specific date, such representation or warranty shall be true and
correct as of such specific date).
(b) No Defaults. At the time of and immediately after giving
effect to such Borrowing, or (as applicable) the date of issuance,
amendment, renewal or extension of such Letter of Credit, no Default
shall have occurred and be continuing.
(c) Consummation of Acquisition. To the extent that the
proceeds of such Loans are being applied to finance in whole or in party
any Acquisition that is not permitted under Section 7.04(e) (and that,
therefore, is being consummated with the consent of the Required
Lenders), evidence that such Acquisition shall have been (or shall be
simultaneously) consummated in all material respects in accordance with
the terms of the respective acquisition agreement (it being understood
that any modifications, supplements or waivers thereof, or written
consents or determinations made by the parties thereto, that shall
affect in any material respect the provisions of such acquisition shall
have been consented to by the Required Lenders), and the Administrative
Agent shall have received a certificate of a Financial Officer to such
effect and to the effect that attached thereto are true and complete
copies of the documents delivered in connection with the closing of such
Acquisition. In addition, the Administrative Agent shall have
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received copies of the legal opinions delivered to the Borrower pursuant
to such acquisition agreement in connection with such Acquisition.
Each Borrowing Request, or request for issuance, amendment, renewal or
extension of a Letter of Credit, shall be deemed to constitute a representation
and warranty by the Borrower (both as of the date of such Borrowing Request, or
request for issuance, amendment, renewal or extension, and as of the date of
the related Borrowing or issuance, amendment, renewal or extension) as to the
matters specified in paragraphs (a) and (b) of this Section 5.03.
ARTICLE VI
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, each of the
Credit Parties covenants and agrees with the Lenders that:
SECTION 6.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower:
(i) consolidated and consolidating statements of income,
retained earnings and cash flows of the Borrower and its
Subsidiaries (and, separately stated, of the Borrower and its
Restricted Subsidiaries) for such fiscal year and the related
consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries (and, separately stated, of the Borrower and its
Restricted Subsidiaries) as at the end of such fiscal year,
setting forth in each case in comparative form the corresponding
consolidated and consolidating figures for the preceding fiscal
year,
(ii) an opinion of independent certified public
accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) stating
that said consolidated financial statements referred to in the
preceding clause (i) fairly present the consolidated financial
condition and results of operations of the Borrower and its
Subsidiaries (and of the Borrower and its Restricted
Subsidiaries, as the case may be) as at the end of, and for, such
fiscal year in accordance with generally accepted accounting
principles, and a statement of such accountants to the effect
that, in making the examination necessary for their opinion,
nothing came to their attention that caused them to believe that
the Borrower was not in compliance with Section 7.09, insofar as
such Section relates to accounting matters, and
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(iii) a certificate of a Financial Officer stating that
said consolidating financial statements referred to in the
preceding clause (i) fairly present the respective individual
unconsolidated financial condition and results of operations of
the Borrower and of each of its Subsidiaries, in each case in
accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such fiscal
year;
(b) as soon as available and in any event within 60 days after
the end of each of the first three quarterly fiscal periods of each
fiscal year of the Borrower (other than the fiscal year ending December
31, 1996):
(i) consolidated and consolidating statements of income,
retained earnings and cash flows of the Borrower and its
Subsidiaries (and, separately stated, of the Borrower and its
Restricted Subsidiaries) for such period and for the period from
the beginning of the respective fiscal year to the end of such
period, and the related consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries (and, separately
stated, of the Borrower and its Restricted Subsidiaries) as at
the end of such period, setting forth in each case in comparative
form the corresponding consolidated and consolidating figures for
the corresponding period in the preceding fiscal year (except
that, in the case of balance sheets, such comparison shall be to
the last day of the prior fiscal year),
(ii) a certificate of a Financial Officer, which
certificate shall state that said consolidated financial
statements referred to in the preceding clause (i) fairly present
the consolidated financial condition and results of operations of
the Borrower and its Subsidiaries (and of the Borrower and its
Restricted Subsidiaries, as the case may be) and that said
consolidating financial statements referred to in the preceding
clause (i) fairly present the respective individual
unconsolidated financial condition and results of operations of
the Borrower and of each of its Subsidiaries, in each case in
accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments);
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer (i)
certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 7.09 and
(iii) stating whether any change in GAAP or in the application thereof
has occurred since the date of the audited financial statements referred
to in Section 4.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial
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statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of
all registration statements, regular periodic reports and press releases
filed by the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities
exchange;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally or to the holders of the Senior Subordinated Notes or
the New Senior Subordinated Notes (or any Refunding Indebtedness) or
Senior Secured Notes generally, copies of all financial statements,
reports and proxy statements so mailed; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
In addition, the Borrower will arrange a meeting with the Lenders at a site
reasonably convenient to the parties and acceptable to the Administrative
Agent, at least once during each fiscal year (but in any event with a period of
no more than fifteen months between meetings), at which the Borrower will
report upon its financial condition, business and operations and have senior
officers available to answer questions of the Lenders regarding such financial
condition, business and operations.
SECTION 6.02. NOTICES OF MATERIAL EVENTS. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of
the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $1,000,000; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.02 shall be accompanied by a
statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or
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development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 6.03. EXISTENCE; CONDUCT OF BUSINESS. The Borrower
will, and will cause each of its Restricted Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 7.04.
SECTION 6.04. PAYMENT OF OBLIGATIONS. The Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 6.05. MAINTENANCE OF PROPERTIES; INSURANCE. The
Borrower will, and will cause each of its Restricted Subsidiaries to, (a) keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations.
SECTION 6.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The
Borrower will, and will cause each of its Restricted Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Restricted
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
The Borrower, in consultation with the Administrative Agent, will arrange for a
meeting to be held at least once every year with the Lenders hereunder at which
the business and operations of the Borrower and its Restricted Subsidiaries are
discussed.
SECTION 6.07. FISCAL YEAR. To enable the ready and consistent
determination of compliance with the covenants set forth in Section 7 hereof,
the Credit Parties will not change the last day of their fiscal year from
December 31 of each year, or the last day of the first three fiscal quarters in
each of its fiscal years from March 31, June 30 and September 30, respectively.
SECTION 6.08. COMPLIANCE WITH LAWS. The Borrower will, and will
cause each of its Restricted Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so,
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individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 6.09. USE OF PROCEEDS. The proceeds of the Revolving
Credit Loans will be used only for the refinancing of existing Indebtedness,
for Capital Expenditures, Logo Acquisition Expenditures and Acquisitions
permitted hereunder, for expenses incurred in connection with the foregoing
transactions and for general corporate purposes. The proceeds of the Term
Loans not applied to the continuation on the Effective Date of Loans under the
Existing Credit Agreement (as contemplated by Section 2.01(d)) shall be applied
to the payment of expenses incurred in connection with this Agreement and for
general corporate purposes. The proceeds of the Incremental Loans will be used
only for Logo Acquisition Expenditures and Acquisitions permitted hereunder and
for general corporate purposes. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations G, U and X.
SECTION 6.10. CERTAIN OBLIGATIONS RESPECTING RESTRICTED
SUBSIDIARIES AND COLLATERAL SECURITY.
(a) Subsidiary Guarantors. In the event that the Borrower shall
form or acquire any new Subsidiary (other than an Unrestricted Subsidiary or an
Inactive Subsidiary) after the date hereof, the Borrower will, and will cause
each of its Restricted Subsidiaries to, cause such new Subsidiary within five
Business Days of such formation or acquisition:
(i) to execute and deliver to the Administrative Agent a Joinder
Agreement (and thereby to become a party to this Agreement, as a
"Subsidiary Guarantor" hereunder, and to the Pledge Agreement, as a
"Securing Party" thereunder) and to pledge and grant to the
Administrative Agent for the benefit of the Lenders hereunder a security
interest in any property owned by it that is of the type included in the
definition of "Collateral" under the Pledge Agreement;
(ii) to take such action (including delivering such shares of
stock and executing and delivering such Uniform Commercial Code
financing statements) as shall be necessary to create and perfect valid
and enforceable first priority Liens consistent with the provisions of
the Pledge Agreement on such Collateral under the Pledge Agreement; and
(iii) to deliver such proof of corporate action, incumbency of
officers and other documents as is consistent with those delivered by
each Subsidiary Guarantor pursuant to Section 5.01 upon the Effective
Date or as the Administrative Agent shall have reasonably requested.
Without limiting the generality of the foregoing, (x) the
Borrower shall cause any Subsidiary that becomes a guarantor in respect of any
Senior Subordinated Notes or New Senior Subordinated Notes (or in respect of
any Refunding Indebtedness), to immediately become a Subsidiary Guarantor
hereunder in compliance with the provisions of the preceding paragraph, whether
or not such Subsidiary is otherwise required to be a Subsidiary Guarantor
hereunder and
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(y) in the event that the Borrower intends to request of the trustees under the
Senior Subordinated Notes Indentures or the New Senior Subordinated Notes
Indentures that any Restricted Subsidiary be released from its Guarantees of
the Senior Subordinated Notes and the New Senior Subordinated Notes pursuant to
the Senior Subordinated Notes Indentures and the New Senior Subordinated Notes
Indentures then, so long as at the time of such request no Default shall have
occurred and be continuing, the Administrative Agent is hereby authorized to
(and, at the request of the Borrower, shall) release such Relevant Subsidiary
from its obligations as a Guarantor hereunder and from its obligations (if any)
as a "Securing Party" under the Security Documents (it being understood that
the Administrative Agent may condition the effectiveness of such release upon
the delivery to the trustee under the Senior Secured Notes Indentures of the
documents required pursuant to Section 10.05 thereof to effect the release of
such Restricted Subsidiary from its Guarantee thereunder).
(b) Ownership of Restricted Subsidiaries. The Borrower will,
and will cause each of its Restricted Subsidiaries to, take such action from
time to time as shall be necessary to ensure that the percentage of the equity
capital of any class or character owned by it in any Restricted Subsidiary on
the date hereof (or, in the case of any newly formed or newly acquired
Subsidiary, on the date of formation or acquisition) is not at any time
decreased, other than by reason of transfers to the Borrower or another
Restricted Subsidiary. In the event that any additional shares of stock shall
be issued by any Restricted Subsidiary, the respective holder of such shares of
stock shall forthwith deliver to the Administrative Agent pursuant to the
Pledge Agreement the certificates evidencing such shares of stock, accompanied
by undated stock powers executed in blank and to take such other action as the
Administrative Agent shall request to perfect the security interest created
therein pursuant to the Pledge Agreement.
ARTICLE VII
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit shall have expired or terminated and all
LC Disbursements shall have been reimbursed, the Credit Parties covenant and
agree with the Lenders that:
SECTION 7.01. INDEBTEDNESS. The Borrower will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness in respect of notes issued by the Borrower
after the date hereof so long as (i) no Default exists at the time of
such issuance or would result therefrom, (ii) such Indebtedness (and any
Guarantees of Subsidiaries in respect of such Indebtedness) is
subordinated upon terms no less favorable (from the standpoint of the
holders of "Senior Indebtedness" under and as defined in the Senior
Subordinated Notes Indentures) than the terms of subordination set forth
in the Senior Subordinated Notes Indentures, (iii) the scheduled
amortization of such notes (whether by sinking fund payments, mandatory
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redemptions or repurchases or otherwise) shall not be earlier than the
later of six months after the Incremental Term Loan Maturity Date and
the maturity date of the then latest-maturing Senior Subordinated Notes
or any other New Senior Subordinated Notes, (iv) the covenants, events
of default and mandatory prepayment requirements (whether by sinking
fund payments, mandatory redemptions or repurchases or otherwise) of the
Refunding Indebtedness are not more restrictive than the corresponding
provisions of the Senior Subordinated Notes Indentures, (v) after giving
effect to the issuance of such notes the Borrower shall be in compliance
with Section 7.09 (the determination of such compliance to be calculated
on a pro forma basis as if such notes had been issued as of the first
day of the period of four fiscal quarters most recently ended prior to
the date of such issuance) and (vi) the Borrower furnishes to the
Administrative Agent on the date of such issuance a certificate of a
Financial Officer demonstrating in reasonable detail compliance with the
foregoing conditions;
(c) Indebtedness existing on the date hereof and set forth in
Schedule 7.01 and (x) in the case of any such Indebtedness (other than
the Senior Subordinated Notes), any extension, renewal, refunding or
replacement of such Indebtedness that does not increase the principal
amount of such Indebtedness outstanding on the date hereof and (y) in
the case of the Senior Subordinated Notes, (A) any extension or renewal
thereof so long as such Senior Subordinated Notes, as so extended or
renewed, would have been permitted to be issued on the date of such
extension or renewal under paragraph (b) above and (B) any refunding or
replacement thereof from the proceeds of New Senior Subordinated Notes
issued in accordance with paragraph (b) above that does not increase the
principal amount of such Indebtedness outstanding on the date of such
refunding or replacement;
(d) Indebtedness of the Borrower to any Restricted Subsidiary
and of any Restricted Subsidiary to the Borrower or any other Restricted
Subsidiary;
(e) Guarantees permitted under Section 7.03;
(f) Indebtedness of the Borrower under Equity Hedging
Arrangements, so long as the aggregate maximum contingent or potential
liability thereunder shall not on any date exceed $12,000,000 minus the
aggregate amount in fact paid by the Borrower under all Equity Hedging
Arrangements during the period commencing on the date hereof and ending
on such date; and
(g) additional Indebtedness of the Borrower or any Restricted
Subsidiary (determined on a consolidated basis without duplication in
accordance with GAAP) in an aggregate principal amount up to but not
exceeding $25,000,000 at any one time outstanding.
SECTION 7.02. LIENS. The Borrower will not, and will not permit
any Restricted Subsidiary to, create, incur, assume or permit to exist any Lien
on any Property or asset now owned or hereafter acquired by it, or assign or
sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:
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(a) Liens created under the Security Documents;
(b) any Lien on any property or asset of the Borrower or any
Restricted Subsidiary existing on the date hereof and set forth in
Schedule 7.02, provided that (i) such Lien shall not apply to any other
property or asset of the Borrower or any Restricted Subsidiary and (ii)
such Lien shall secure only those obligations which it secures on the
date hereof and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(c) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or (in the case of property taxes and
assessments not exceeding $250,000 in the aggregate more than 90 days
overdue) or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on
the books of the Borrower or the affected Restricted Subsidiaries, as
the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens, and vendors' Liens imposed by statute
or common law not securing the repayment of Indebtedness, arising in the
ordinary course of business which are not overdue for a period of more
than 60 days or which are being contested in good faith and by
appropriate proceedings and Liens securing judgments (including, without
limitation, pre-judgment attachments) but only to the extent for an
amount and for a period not resulting in an Event of Default under
Section 8(j) hereof;
(e) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, tenders, trade
contracts (other than for borrowed money), leases (other than capital
leases), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not, in the aggregate, materially detract from the value of the
Property of the Borrower and its Restricted Subsidiaries or interfere
with the ordinary conduct of the business of the Borrower or any of its
Restricted Subsidiaries;
(h) additional Liens upon real and/or personal Property created
after the date hereof provided that the aggregate amount of obligations
secured thereby shall not exceed $20,000,000;
(i) Liens consisting of bankers' liens and rights of setoff, in
each case, arising by operation of law, and Liens on documents presented
in letters of credit drawings; and
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(j) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Restricted Subsidiary, provided that (i)
such Liens secure Indebtedness permitted by Section 7.01(g), (ii) such
Liens and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does
not exceed the cost of acquiring, constructing or improving such fixed
or capital assets and (iv) such security interests shall not apply to
any other property or assets of the Borrower or any Restricted
Subsidiary.
SECTION 7.03. CONTINGENT LIABILITIES.
(a) The Borrower will not, and will not permit any Restricted
Subsidiary to, Guarantee the Indebtedness or other obligations of any Person,
or Guarantee the payment of dividends or other distributions upon the stock of,
or the earnings of, any Person, except:
(i) endorsements of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business,
(ii) Guarantees by the Borrower of Indebtedness of any
Subsidiary and by any Restricted Subsidiary of Indebtedness of the
Borrower or any other Subsidiary, provided that the aggregate amount of
such Guarantees by the Borrower and its Restricted Subsidiaries of
obligations of Unrestricted Subsidiaries, together with any Investments
permitted under Section 7.05(a)(i), shall not exceed $25,000,000;
(iii) Guarantees in effect on the date hereof which are
disclosed in Schedule 7.03, any replacements thereof in amounts not
exceeding such Guarantees and any additions thereto, provided the
additions thereto do not exceed $7,500,000 outstanding in the aggregate;
(iv) Surety Bonds, subject, however, to the limits set forth in
Section 7.03(b);
(v) all transactions with or for the benefit of Affiliates that
are expressly permitted under the proviso in Section 7.07; and
(vi) obligations in respect of Letters of Credit.
(b) The Borrower shall not, and shall not permit any Restricted
Subsidiary to, create, incur or suffer to exist any obligations (contingent or
otherwise) with respect to any Surety Bonds on behalf of Affiliates in an
aggregate face amount (as to the Borrower and the Restricted Subsidiaries taken
together) exceeding $10,000,000 at any time outstanding.
SECTION 7.04. FUNDAMENTAL CHANGES. The Borrower will not, nor
will it permit any of its Restricted Subsidiaries to, enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution). The Borrower
will not, nor will it permit any of its Restricted Subsidiaries to, acquire any
business or property from, or capital stock of, or be a party to any
acquisition of, any
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person except for purchases of inventory and other property to be sold or used
in the ordinary course of business, Investments permitted under Section 7.05
and Capital Expenditures permitted under Section 7.09(e). The Borrower will
not, nor will it permit any of its Restricted Subsidiaries to, convey, sell,
lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, any part of its business or property, whether now owned or
hereafter acquired (including, without limitation, receivables and leasehold
interests, but excluding (x) obsolete or worn-out property, tools or equipment
no longer used or useful in its business and (y) any inventory or other
property sold or disposed of in the ordinary course of business and on ordinary
business terms).
Notwithstanding the foregoing provisions of this Section 7.04:
(a) any Restricted Subsidiary may be merged or consolidated with
or into any other Restricted Subsidiary; provided that if any such
transaction shall be between a Restricted Subsidiary and a Wholly Owned
Restricted Subsidiary of the Borrower, the Wholly Owned Restricted
Subsidiary shall be the continuing or surviving corporation;
(b) any Restricted Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its property (upon voluntary
liquidation or otherwise) to any Wholly Owned Restricted Subsidiary of
the Borrower;
(c) the capital stock of any Restricted Subsidiary may be sold,
transferred or otherwise disposed of to the Borrower or any Wholly Owned
Restricted Subsidiary of the Borrower;
(d) the Borrower or any of its Restricted Subsidiaries may sell
assets (including, without limitation, capital stock issued by any of
their respective Subsidiaries) for fair market value provided that (i)
the aggregate amount of Disposition Investments and other non-cash
proceeds (valued at the fair market value thereof determined in good
faith by the Board of Directors of the Borrower) received by the seller
in the sale of any asset shall not exceed 15% of the total sales price
for such asset (including (A) the amount of liabilities, if any, assumed
as a portion of the sales price and (B) the amount of any repayment by
the seller of the principal of Indebtedness to the extent that (X) such
Indebtedness is secured by a Lien on such asset and (Y) the seller is
required by the transferee of (or holder of a Lien on) such assets to
repay such principal as a condition to the purchase of such asset) and
(ii) no more than 10% of EBITDA for any fiscal year of the Borrower
shall be attributable to all such assets so sold in the following fiscal
year of the Borrower;
(e) the Borrower or any Wholly Owned Restricted Subsidiary of
the Borrower may acquire any business, and the related assets, of any
other Person including of an Unrestricted Subsidiary (whether by way of
purchase of assets or stock, by merger or consolidation or otherwise),
so long as:
(i) such Acquisition (if by purchase of assets, merger or
consolidation) shall be effected in such manner so that the
acquired business, and the related
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assets, are owned either by the Borrower or a Wholly Owned
Restricted Subsidiary of the Borrower and, if effected by merger
or consolidation involving the Borrower, the Borrower shall be
the continuing or surviving entity and, if effected by merger or
consolidation involving a Wholly Owned Restricted Subsidiary of
the Borrower, such Wholly Owned Restricted Subsidiary shall be
the continuing or surviving entity;
(ii) such Acquisition (if by purchase of stock) shall be
effected in such manner so that the acquired entity becomes a
Wholly Owned Restricted Subsidiary of the Borrower;
(iii) after giving effect to such Acquisition the
Borrower shall be in compliance with Section 7.09 (the
determination of such compliance to be calculated on a pro forma
basis, as at the end of and for the period of four fiscal
quarters most recently ended prior to the date of such
Acquisition for which financial statements of the Borrower and
its Restricted Subsidiaries are available, under the assumption
that such Acquisition shall have occurred, and any Indebtedness
in connection therewith shall have been incurred, at the
beginning of the applicable period, and under the assumption that
interest for such period had been equal to the actual weighted
average interest rate in effect for the Loans hereunder on the
date of such Acquisition) and, in the event that the aggregate
amount of expenditures in respect of such Acquisition and of all
prior Acquisitions not covered by a certificate delivered under
this subclause (iii) shall exceed $20,000,000, the Borrower shall
have delivered to the Administrative Agent a certificate of a
Financial Officer showing calculations in reasonable detail to
demonstrate compliance with this subclause (iii); and
(iv) immediately prior to such Acquisition and after
giving effect thereto, no Default shall have occurred and be
continuing;
(f) the Borrower or any Restricted Subsidiary of the Borrower
may effect any Logo Acquisition Expenditure with respect to a logo
franchise, so long as the aggregate amount of such expenditures
(determined in good faith by the Board of Directors of the Borrower at
the time such expenditures commence) shall not exceed $50,000,000; and
(g) the Borrower and its Restricted Subsidiaries may dispose of
any one or more outdoor properties in exchange for one or more other
outdoor properties (including logo signage businesses), so long as the
percentage of the aggregate EBITDA attributable to the properties so
disposed of during any single fiscal year does not exceed 10% of the
aggregate EBITDA of the Borrower and its Restricted Subsidiaries for the
most recently-ended fiscal year (such EBITDA to be determined for these
purposes without giving effect to the last paragraph of the definition
of such term in Section 1.01).
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SECTION 7.05. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS; HEDGING AGREEMENTS.
(a) The Borrower will not, and will not permit any of its
Restricted Subsidiaries to, make or permit to remain outstanding any
Investment, except:
(i) Investments by the Borrower and its Restricted Subsidiaries
in Subsidiaries (including Guarantees by the Borrower of Indebtedness of
any Subsidiary and by any Restricted Subsidiary of Indebtedness of the
Borrower or any other Subsidiary), provided that the aggregate amount of
any such Investments (including Guarantees) by the Borrower and its
Restricted Subsidiaries in Unrestricted Subsidiaries after the date
hereof (net of returns on such Investments after the date hereof) shall
not exceed $100,000,000 and no such Investment may be made at any time
that a Default exists or if a Default would result therefrom;
(ii) Permitted Investments;
(iii) operating deposit accounts with banks;
(iv) Disposition Investments received in connection with any
Disposition permitted under Section 7.04(d) or any Disposition to which
the Lenders shall have consented in accordance with Section 10.02;
(v) Investments in Affiliates not exceeding $5,000,000 at any
one time outstanding;
(vi) Investments in Affiliates described in, and permitted by,
Section 7.07 (other than clause (iii) of the proviso to Section 7.07);
and
(vii) additional Investments in Persons that are not Affiliates
up to but not exceeding $75,000,000 in the aggregate at any one time
outstanding, provided that no such Investment may be made at any time
that a Default exists or if a Default would result therefrom.
(b) The Borrower will not, and will not permit any of its
Restricted Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Restricted Subsidiary is exposed in
the conduct of its business or the management of its liabilities.
SECTION 7.06. DIVIDEND PAYMENTS. The Borrower will not, nor
will it permit any of its Restricted Subsidiaries to, declare or make any
Dividend Payment at any time; provided, however, that the Borrower may declare
and make Dividend Payments in cash (including, without limitation, Dividend
Payments to Affiliates), subject to the satisfaction of each of the following
conditions on the date of such Dividend Payment and after giving effect
thereto:
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(i) no Default shall have occurred and be continuing (except
that to the extent the Dividend Payments made during any single fiscal
year do not exceed $500,000, such Dividend Payments may be made
notwithstanding that a Default under Section 8(c) or 8(d) exists, so
long as no other Default shall have occurred and be continuing);
(ii) the aggregate amount of Dividend Payments made during any
fiscal year shall not exceed the greater of (A) $500,000 and (B) the
lesser of (x) the portion of Excess Cash Flow for the immediately
preceding fiscal year not required to be applied to the prepayment of
Loans, cover for LC Exposure and reductions of Commitments hereunder
pursuant to Section 2.09(b)(iii) and (y) $10,000,000 minus the amount of
any Dividend Payments made during such fiscal year pursuant to the next
paragraph;
(iii) prior to declaring or making any such Dividend Payment
during any fiscal year, the Borrower shall have prepaid the Loans and
provided cover for LC Exposure to the extent required pursuant to
Section 2.09(b)(iii) with respect to Excess Cash Flow for the
immediately preceding fiscal year; and
(iv) the Borrower shall have delivered to each Lender, at least
10 Business Days (but not more than 20 Business Days) prior to the date
of the proposed Dividend Payment, a certificate of the chief financial
officer of the Borrower setting forth computations in reasonable detail
demonstrating satisfaction of the foregoing conditions as at the date of
such certificate.
Notwithstanding the foregoing, (x) the Borrower may make Dividend
Payments consisting of the retirement of employee stock options and other
Equity Rights upon the death, retirement or termination of employment of
officers and employees in an aggregate amount in any fiscal year not exceeding
$1,000,000, so long as at the time thereof and after giving effect thereto, no
Default shall have occurred and be continuing and (y) the Borrower may enter
into Equity Hedging Arrangements, so long as the aggregate maximum contingent
or potential liability thereunder shall not on any date exceed $12,000,000
minus the aggregate amount in fact paid by the Borrower under all Equity
Hedging Arrangements during the period commencing on the date hereof and ending
on such date.
Nothing herein shall be deemed to prohibit the payment of any
dividend or distribution by any Subsidiary of the Borrower so long as such
dividends or distributions are declared and paid ratably to the shareholders,
partners and other equity holders of such Subsidiary.
SECTION 7.07. TRANSACTIONS WITH AFFILIATES. Except as expressly
permitted by this Agreement, the Borrower will not, nor will it permit any of
its Restricted Subsidiaries to, directly or indirectly (a) make any Investment
in an Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
property to an Affiliate unless such transaction is effected in the ordinary
course of business and the fair market value of such property transferred,
sold, leased, assigned or otherwise disposed of in any transaction or series of
related transactions is less than or equal to $250,000; (c) merge into or
consolidate with an Affiliate, or purchase or acquire property from an
Affiliate unless such purchase or acquisition is effected in the ordinary
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course of business, the fair market value of such property purchased or
acquired in any transaction or series of related transactions is less than or
equal to $250,000 and the consideration paid in connection therewith does not
exceed fair market value; or (d) enter into any other transaction directly or
indirectly with or for the benefit of an Affiliate (including, without
limitation, guarantees and assumptions of obligations of an Affiliate) unless
such transaction is effected in the ordinary course of business, the goods,
services, obligations or other consideration that is the subject of such
transaction has a fair market value (or other appropriate value determined by
reference to similar transactions conducted on an arms' length basis) less than
or equal to $250,000 and the consideration received (or paid) by the Borrower
or the relevant Restricted Subsidiary, as the case may be, is not less than (if
received) or more than (if paid) the consideration that would be received or
paid, as the case may be, in a comparable transaction effected on an arms'
length basis with a Person that is not an Affiliate; provided that:
(i) any Affiliate who is an individual may serve as a director,
officer, employee or consultant of the Borrower or any of its Restricted
Subsidiaries and receive reasonable compensation for his or her services
in such capacity;
(ii) the Borrower and its Restricted Subsidiaries may engage in
and continue the transactions with or for the benefit of Affiliates
which are described in Schedule 7.07;
(iii) the Borrower and its Restricted Subsidiaries may make
Acquisitions of Affiliates so long as (x) the consideration paid in
connection therewith does not exceed fair market value, as determined by
the disinterested members of the board of directors of the Borrower, (y)
in the case of Acquisitions involving consideration valued in excess of
$1,000,000, the Borrower or Restricted Subsidiary, as the case may be,
shall have delivered a certificate of an independent appraiser to such
effect and (z) the aggregate amount of consideration for all such
Acquisitions after the date hereof does not exceed $5,000,000;
(iv) the Borrower and its Restricted Subsidiaries may enter into
and be obligated with respect to site leases (and renewals and
extensions thereof) entered into in the ordinary course of business, so
long as the Affiliates benefiting from such site leases pay (or
reimburse the Borrower or the Restricted Subsidiaries for) their fair
share of the expenses thereunder and such site leases are otherwise no
less favorable to the Borrower and its Restricted Subsidiaries than a
comparable transaction effected on an arms' length basis with a Person
that is not an Affiliate; and
(v) the Borrower and its Restricted Subsidiaries may enter into
and continue agreements to provide management services to Affiliates,
warehouse leases and contracts for the sale of outdoor advertising
services, in the form customarily entered into, and Surety Bond and
insurance programs, in each case referred to in this clause (v) in the
ordinary course of business and in which Affiliates are co-obligors and
co-beneficiaries, provided that all such Affiliates agree to reimburse
the Borrower and each Restricted Subsidiary for their fair share of
rent, premiums, deposits and other payments required to be made under
any such agreement or program.
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SECTION 7.08. RESTRICTIVE AGREEMENTS. The Borrower will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any Restricted Subsidiary to create, incur or permit
to exist any Lien upon any of its property or assets, or (b) the ability of any
Restricted Subsidiary to pay dividends or other distributions with respect to
any shares of its capital stock or to make or repay loans or advances to the
Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the
Borrower or any other Restricted Subsidiary; provided that (i) the foregoing
shall not apply to restrictions and conditions imposed by law or by this
Agreement, (ii) the foregoing shall not apply to restrictions and conditions
existing on the date hereof identified on Schedule 7.08 (but shall apply to any
extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition), (iii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Restricted Subsidiary pending such sale, provided such restrictions
and conditions apply only to the Restricted Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and
(v) clause (a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof.
SECTION 7.09. CERTAIN FINANCIAL COVENANTS.
(a) Total Debt Ratio. The Borrower will not permit the Total
Debt Ratio at any time during any period below to exceed the ratio set opposite
such period below:
Period Ratio
------ -----
From the Effective Date 6.50 to 1
through November 30, 1999
From December 01, 1999 6.25 to 1
through December 30, 2000
From December 31, 2000 6.00 to 1
through December 30, 2001
From December 31, 2001 5.75 to 1
and at all times thereafter
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(b) Senior Debt Ratio. The Borrower will not permit the Senior
Debt Ratio at any time during the period below to exceed the ratio set opposite
such period below:
Period Ratio
------ -----
From the Effective Date 4.50 to 1
through November 30, 1999
From December 01, 1999 4.00 to 1
through December 30, 2000
From December 31, 2000 3.50 to 1
through December 30, 2001
From December 31, 2001 3.00 to 1
and at all times thereafter
(c) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio at any time during the period below to be less than the
ratio set opposite such period below:
Period Ratio
------ -----
From the Effective Date 1.70 to 1
through November 30, 1998
From December 01, 1998 1.80 to 1
through December 30, 1999
From December 31, 1999 2.00 to 1
through December 30, 2000
From December 31, 2000 2.10 to 1
and at all times thereafter
(d) Fixed Charges Ratio. The Borrower will not permit the Fixed
Charges Ratio as at the last day of any fiscal quarter to be less than 1.05 to
1.
SECTION 7.10. LINES OF BUSINESS. Neither the Borrower nor any
of its Subsidiaries shall engage to any substantial extent in any line or lines
of business activity which would cause earnings from outdoor advertising,
out-of-home media, logo signage and other activities reasonably ancillary
thereto to constitute less than 80% of EBITDA for any period.
SECTION 7.11. SUBORDINATED INDEBTEDNESS. Except as permitted by
Section 7.01(c), the Borrower will not, nor will it permit any of its
Restricted Subsidiaries to, purchase, redeem, retire or otherwise acquire for
value, or set apart any money for a sinking, defeasance or other analogous fund
for the purchase, redemption, retirement or other acquisition of, or make any
voluntary payment or prepayment of the principal of or interest on, or any
other
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amount owing in respect of, any Subordinated Indebtedness, except for regularly
scheduled payments or prepayments of principal and interest in respect thereof
required pursuant to the instruments evidencing such Subordinated Indebtedness.
SECTION 7.12. MODIFICATIONS OF CERTAIN DOCUMENTS. The Borrower
will not, and will not permit any of its Restricted Subsidiaries to, consent to
any modification, supplement or waiver of any of the provisions of any
documents or agreements evidencing or governing any Senior Subordinated Notes
or (after the issuance thereof in accordance with the requirements of Section
7.01(b)) any New Senior Subordinated Notes (or any Refunding Indebtedness)
without the prior consent of the Required Lenders, provided that, subject to
the last paragraph of Section 6.10(a), the Borrower may supplement the Senior
Subordinated Notes Indentures or the New Senior Subordinated Notes Indentures
in order to add or delete Subsidiaries as guarantors thereunder as required or
permitted by the terms thereof without the prior consent of the Required
Lenders. Without limiting the generality of the foregoing, except for
Guarantees by Restricted Subsidiaries of the Borrower required by the Senior
Subordinated Notes Indentures or the New Senior Subordinated Notes Indentures,
as the case may be, the Borrower will not permit any Restricted Subsidiary to
Guarantee any other Subordinated Indebtedness without the prior consent of the
Required Lenders.
ARTICLE VIII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of, or interest
on, any Loan or any reimbursement obligation in respect of any LC
Disbursement, or any fee or other amount payable under this Agreement,
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any representation or warranty made or deemed made by or on
behalf any Credit Party in or in connection with this Agreement, any of
the other Basic Documents or any amendment or modification hereof or
thereof, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement, any
of the other Basic Documents or any amendment or modification hereof or
thereof, shall prove to have been incorrect when made or deemed made in
any material respect;
(c) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.02, 6.03 (with respect to
the Borrower's existence), 6.09 or 6.10 or in Article VII (other than
Section 7.07 or 7.10);
(d) the Borrower or any of its Subsidiaries shall fail to
observe or perform any covenant, condition or agreement contained in
this Agreement (other than those specified in clause (b) or (c) of this
Article) or any other Loan Document, and such failure shall
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continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent (given at the request of any Lender) to the
Borrower;
(e) the Borrower or any of its Restricted Subsidiaries shall
fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and
as the same shall become due and payable;
(f) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (f) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any of its
Restricted Subsidiaries or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any of its Restricted
Subsidiaries or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60 days
or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) the Borrower or any of its Restricted Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (g) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its
Restricted Subsidiaries or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(i) the Borrower or any of its Restricted Subsidiaries shall
become unable, admit in writing or fail generally to pay its debts as
they become due;
(j) a final judgment or judgments for the payment of money in
excess of $2,000,000 in the aggregate (exclusive of judgment amounts
fully covered by insurance where the insurer has admitted liability in
respect of such judgment) or in excess of $20,000,000 in the aggregate
(regardless of insurance coverage) shall be rendered by a one or more
courts, administrative tribunals or other bodies having jurisdiction
against
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the Borrower or any of its Restricted Subsidiaries and the same shall
not be discharged (or provision shall not be made for such discharge),
or a stay of execution thereof shall not be procured, within 60 days
from the date of entry thereof and the Borrower or the relevant
Restricted Subsidiary shall not, within said period of 60 days, or such
longer period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during
such appeal;
(k) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(l) A reasonable basis shall exist for the assertion against the
Borrower or any of its Subsidiaries of (or there shall have been
asserted against the Borrower or any of its Subsidiaries) claims or
liabilities, whether accrued, absolute or contingent, based on or
arising from the generation, storage, transport, handling or disposal of
Hazardous Materials by the Borrower or any of its Subsidiaries or
Affiliates, or any predecessor in interest of the Borrower or any of its
Subsidiaries or Affiliates, or relating to any site or facility owned,
operated or leased by the Borrower or any of its Subsidiaries or
Affiliates, which claims or liabilities (insofar as they are payable by
the Borrower or any of its Subsidiaries but after deducting any portion
thereof which is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor), in the judgment of the
Required Lenders are reasonably likely to be determined adversely to the
Borrower or any of its Subsidiaries, and the amount thereof is, singly
or in the aggregate, reasonably likely to have a Material Adverse
Effect;
(m) any of the following events shall occur and be continuing:
(i) the capital stock of the Borrower owned directly or
indirectly by Kevin P. Reilly, Sr., his wife, his children, his
grandchildren, trusts of which he, his wife, his children and his
grandchildren are the sole beneficiaries and for which one or
more of such individuals are the sole trustee(s) and any
Qualified Reilly Partnership shall (on a fully diluted basis
after giving effect to the exercise of any outstanding rights or
options to acquire capital stock of the Borrower) cease to
constitute either (x) at least 20% of the aggregate equity
capital of the Borrower or (y) at least such percentage of the
aggregate voting stock of the Borrower as is sufficient at all to
times elect a majority of the Board of Directors of the Borrower;
(ii) any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date
hereof) other than Kevin P. Reilly, Sr. and any of the other
permitted holders referred to in clause (i) above shall (x)
acquire or own, directly or indirectly, beneficially or of
record, shares representing more than 20% of the aggregate equity
capital of the Borrower, or more than 20% of the ordinary voting
power represented by the issued and outstanding voting capital
stock of the Borrower, or (y) acquire direct or indirect Control
of the Borrower; or
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(iii) a majority of the seats (other than vacant seats)
on the board of directors of the Borrower shall be occupied by
Persons who were neither (x) nominated by the board of directors
of the Borrower nor (y) appointed by directors so nominated;
(n) Any of the following shall occur: (i) the Liens created by
the Pledge Agreement shall at any time (other than by reason of the
Administrative Agent relinquishing possession of certificates evidencing
shares of stock of Subsidiaries pledged thereunder) cease to constitute
valid and perfected Liens on the Collateral (as defined therein)
intended to be covered thereby; (ii) except for expiration in accordance
with its terms, the Pledge Agreement shall for whatever reason be
terminated, or shall cease to be in full force and effect; or (iii) the
enforceability of the Pledge Agreement shall be contested by any Credit
Party; or
(o) Any Subsidiary Guarantor shall assert that its obligations
hereunder or under the Security Documents shall be invalid or
unenforceable;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower;
and in case of any event with respect to the Borrower described in clause (g)
or (h) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE IX
The Administrative Agent
Each of the Lenders and the Issuing Lender hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such actions and powers
as are reasonably incidental thereto.
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Chase shall have the same rights and powers in its capacity as a
Lender hereunder as any other Lender and may exercise the same as though Chase
were not the Administrative Agent, and Chase and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
any Credit Party or any Subsidiary or other Affiliate of any thereof as if it
were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in this Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by this Agreement and the other Loan Documents that the
Administrative Agent is required to exercise in writing by the Required
Lenders, and (c) except as expressly set forth herein and in the other Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
any Credit Party or any of their respective Subsidiaries that is communicated
to or obtained by Chase or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders or, if provided
herein, with the consent or at the request of the Required Revolving Credit
Lenders, the Required Term Loan Lenders or the Required Incremental Loan
Lenders, or in the absence of its own gross negligence or willful misconduct.
The Administrative Agent shall not be deemed to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by
the Borrower or a Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement or the other
Loan Documents, (ii) the contents of any certificate, report or other document
delivered hereunder or under any of the other Loan Documents or in connection
herewith of therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or in any
other Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, the other Loan Documents or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article V or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall not, except to the extent
expressly instructed by the Required Lenders with respect to collateral
security under the Security Documents, be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan
Document.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be
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counsel for the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all of its duties,
and exercise its rights and powers, by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through its Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to its activities
in connection with the syndication of the credit facilities provided for herein
as well as activities as the Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent, as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Lender and the
Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor Administrative
Agent. If no successor shall have been so appointed and shall have accepted
such appointment within 30 days after such retiring Administrative Agent gives
notice of its resignation, then such retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Lender, appoint a successor
Administrative Agent, which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointment
as Administrative Agent, by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After an Administrative
Agent's resignation hereunder, the provisions of this Article and Section 10.03
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, the Issuing Lender or any other Lender
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Issuing Lender or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement and the other Loan Documents, any related agreement
or any document furnished hereunder or thereunder.
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ARTICLE X
Miscellaneous
SECTION 10.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 5551 Corporate Boulevard, Baton
Rouge, Louisiana, 70896, Attention of Keith Istre (Telecopy No. (504)
923-0658);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Loan and Agency Services Group, One Chase Manhattan Plaza, New York, New
York 10081, Attention of Janet Belden (Telecopy No. (212) 552-5658),
with a copy to The Chase Manhattan Bank, 270 Park Avenue, New York, New
York 10017, Attention of John Haltmaier (Telecopy No. 212-270-4584); and
(c) if to any Lender (including to Chase in its capacity as the
Issuing Lender), to it at its address (or telecopy number) set forth in
its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 10.02. WAIVERS; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the Issuing
Lender or any Lender in exercising any right or power hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent, the
Issuing Lender and the Lenders hereunder are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by any Credit Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section 10.02, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Lender may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower
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and the Required Lenders or by the Borrower and the Administrative Agent with
the consent of the Required Lenders; provided that no such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of such Lender;
(ii) reduce the principal amount of any Loan or LC Disbursement
or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby;
(iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any
Commitment, or postpone the ultimate expiration date of any Letter of
Credit beyond the Revolving Credit Maturity Date, without the written
consent of each Lender affected thereby;
(iv) change Section 2.09 in a manner that would alter the
application of prepayments thereunder, or change Section 2.16(b), (c) or
(d) in a manner that would alter the pro rata sharing of payments
required thereby, without in each case the written consent of each
Lender;
(v) alter the rights or obligations of the Borrower to prepay
Loans without the written consent of each Lender;
(vi) change any of the provisions of this Section 10.02 or the
definition of "Required Lenders", "Required Revolving Credit Lenders",
"Required Term Loan Lenders", "Required Incremental Loan Lenders", or
any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or under
any other Loan Document or make any determination or grant any consent
hereunder or thereunder, without the written consent of each Lender;
(vii) release any Significant Subsidiary Guarantor from its
obligations in respect of its Guarantee under Article III, without the
written consent of each Lender except in connection with the disposition
of all of the shares of capital stock of a Subsidiary Guarantor in a
transaction permitted hereunder or as to which the Required Lenders have
consented; or
(viii) waive any of the condition precedent specified in Section
5.01;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or the Issuing Lender
hereunder without the prior written consent of the Administrative Agent or the
Issuing Lender, as the case may be.
Anything in this Agreement to the contrary notwithstanding, no
waiver or modification of any provision of this Agreement that has the effect
(either immediately or at
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some later time) of enabling the Borrower to satisfy a condition precedent to
the making of Revolving Credit Loans, Term Loans or Incremental Loans of any
Series shall be effective against the Revolving Credit Lenders, Term Loan
Lenders or Incremental Loan Lenders of such Series, respectively, unless the
Required Revolving Credit Lenders, Required Term Loan Lenders or Required
Incremental Loan Lenders of such Series, respectively, shall have concurred
with such waiver or modification.
(c) Neither the Pledge Agreement nor any provision thereof may
be waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Credit Parties party thereto, and by the
Administrative Agent with the consent of the Required Lenders, provided that,
without the prior consent of each Lender, the Administrative Agent shall not
(except as provided herein or in the Pledge Agreement) release all or any
substantial part of the collateral or otherwise terminate all or any
substantial part of the Liens under the Pledge Agreement, agree to additional
obligations being secured by such collateral (unless the Lien for such
additional obligations shall be junior to the Lien in favor of the other
obligations secured by the Pledge Agreement, in which event the Administrative
Agent may consent to such junior Lien provided that it obtains the consent of
the Required Lenders thereto), alter the relative priorities of the obligations
entitled to the benefits of the Liens created under the Pledge Agreement,
except that no such consent shall be required, and the Administrative Agent is
hereby authorized, to release any Lien covering property that is the subject of
either a disposition of property permitted hereunder or a disposition to which
the Required Lenders have consented.
SECTION 10.03. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) The Credit Parties jointly and severally agree to pay, or
reimburse the Administrative Agent or Lenders for paying, (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of Special Counsel, in
connection with the syndication of the credit facilities provided for herein,
the preparation of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all out-of-pocket expenses incurred by the Issuing Lender in
connection with the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder, (iii) all out-of-pocket expenses
incurred by the Administrative Agent, the Issuing Lender or any Lender,
including the fees, charges and disbursements of any counsel for such
Administrative Agent, Issuing Lender or Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents, including its rights under this Section 10.03, or in
connection with the Loans made or Letters of Credit issued hereunder, including
in connection with any workout, restructuring or negotiations in respect
thereof, and (iv) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Loan Documents or any other
document referred to herein or therein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any
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security interest contemplated by any Security Document or any other document
referred to therein.
(b) The Credit Parties jointly and severally agree to indemnify
the Administrative Agent, the Issuing Lender and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, the other Loan
Documents or any agreement or instrument contemplated hereby, the performance
by the parties hereto and thereto of their respective obligations hereunder or
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use of
the proceeds therefrom (including any refusal by the Issuing Lender to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by any Credit Party or any
of their subsidiaries, or any Environmental Liability related in any way to any
Credit Party or any of their subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless
of whether any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (are determined by a court of
competent jurisdiction by final and nonappealable judgment to have) resulted
from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Credit Parties fail to pay any amount
required to be paid by them to the Administrative Agent under paragraph (a) or
(b) of this Section 10.03, each Lender severally agrees to pay to the
Administrative Agent such Lender's Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent in its capacity as
such. To the extent that the Credit Parties fail to pay any amount required to
be paid by them to the Issuing Lender under paragraph (a) or (b) of this
Section 10.03, each Revolving Credit Lender severally agrees to pay to the
Issuing Lender such Lender's Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, none of the
Credit Parties shall assert, and each Credit Party hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, the
other Loan
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Documents or any agreement or instrument contemplated hereby or thereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section 10.03 shall be payable
promptly after written demand therefor.
SECTION 10.04. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Credit Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by any Credit
Party without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent, the Issuing Lender and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an
Affiliate (or Approved Fund) of a Lender, the Administrative Agent (and,
in the case of an assignment of all or a portion of a Commitment or any
Lender's obligations in respect of its LC Exposure, the Issuing Lender)
and the Borrower must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld);
(ii) except in the case of an assignment to a Lender or an
Affiliate (or Approved Fund) of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent,
(iii) each partial assignment of any Class of Commitments or
Loans shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations of such Class of Commitments
or Loans under this Agreement,
(iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, provided that (x) no such fee
shall be payable in the case of an assignment to another Lender or an
Affiliate (or Approved Fund) of a Lender and (y) in the case of
contemporaneous assignments by a Lender to more than one fund managed by
the same
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investment advisor (which funds are not then Lenders), only a single
$3,500 fee shall be payable for all such contemporaneous assignments,
and
(v) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire;
provided further that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event of Default under clause (h) or (i)
of Article VIII has occurred and is continuing.
Upon acceptance and recording pursuant to paragraph (d) of this
Section 10.04, from and after the effective date specified in each Assignment
and Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.13, 2.14, 2.15 and 10.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this paragraph (b) shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Lender and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Lender and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section 10.04 and any written consent to such assignment required
by paragraph (b) of this Section 10.04, the Administrative Agent shall accept
such Assignment and Acceptance and record the information contained therein in
the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Lender, sell participations to one or more
banks or other entities (a
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"Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Issuing Lender and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.02(b), or the first provision to Section 10.02(c), that affects such
Participant. Subject to paragraph (f) of this Section 10.04, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section 10.04.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.15
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any such pledge or assignment to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such assignee for such Lender as a party hereto.
(h) Anything in this Section 10.04 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan
held by it hereunder to the Borrower or any Affiliates or Subsidiaries of the
Borrower without the prior consent of each Lender.
SECTION 10.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Credit Parties herein and in the
other Loan Documents, and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement and the other Loan Documents,
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, the Issuing Lender or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder,
Amended and Restated Credit Agreement
98
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and shall continue in full force and effect so long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement or the other Loan Documents is outstanding and unpaid or any Letter
of Credit is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.13, 2.14, 2.15 and 10.03 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any other Loan Document or
any provision hereof or thereof.
SECTION 10.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.01, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 10.07. SEVERABILITY. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 10.08. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured.
The rights of each Lender under this Section 10.08 are in addition to any other
rights and remedies (including other rights of setoff) which such Lender may
have.
Amended and Restated Credit Agreement
99
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SECTION 10.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court (or, to the
extent permitted by law, in such Federal court). Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall affect
any right that the Administrative Agent, the Issuing Lender or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against any Credit Party or its properties in the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or the
other Loan Documents in any court referred to in paragraph (b) of this Section
10.09. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 10.01. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 10.10.
Amended and Restated Credit Agreement
100
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SECTION 10.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. RELEASE OF COLLATERAL AND GUARANTEES. The
Administrative Agent and the Lenders agree that if all of the capital stock of
any Subsidiary that is owned by the Borrower and its Subsidiaries is sold to
any Person as permitted by the terms of this Agreement and the Pledge
Agreement, or if any Subsidiary is merged or consolidated with or into any
other Person as permitted by the terms of this Agreement and such Subsidiary is
not the continuing or surviving corporation, the Administrative Agent shall,
upon request of the Borrower (and upon the receipt by the Administrative Agent
of such evidence as the Administrative Agent or any Lender may reasonably
request to establish that such sale, designation, merger or consolidation is
permitted by the terms of this Agreement), terminate the Guarantee of such
Subsidiary under Article III and authorize the Administrative Agent to release
the Lien created by the Pledge Agreement on any capital stock of such
Subsidiary.
SECTION 10.13. SUCCESSOR FACILITY. This Agreement is intended
to be a successor to the Existing Credit Agreement and to constitute the
"Senior Credit Facility" under and for all purposes of each of the Senior
Subordinated Notes Indentures.
Amended and Restated Credit Agreement
101
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
LAMAR ADVERTISING COMPANY
By:/s/ Keith Istre
-----------------------------------------
Title: Chief Financial Officer
SUBSIDIARY GUARANTORS
INTERSTATE LOGOS, INC.
THE LAMAR CORPORATION
LAMAR ADVERTISING OF MOBILE, INC.
LAMAR ADVERTISING OF COLORADO
SPRINGS, INC.
LAMAR ADVERTISING OF SOUTH
MISSISSIPPI, INC.
LAMAR ADVERTISING OF JACKSON, INC.
LAMAR TEXAS GENERAL PARTNER, INC.
LAMAR ADVERTISING OF SOUTH
GEORGIA, INC.
LAMAR TENNESSEE LIMITED PARTNER, INC.
TLC PROPERTIES, INC.
TLC PROPERTIES II, INC.
LAMAR PENSACOLA TRANSIT, INC.
LAMAR ADVERTISING OF
YOUNGSTOWN, INC.
NEBRASKA LOGOS, INC.
OKLAHOMA LOGO SIGNS, INC.
MISSOURI LOGOS, INC.
OHIO LOGOS, INC.
UTAH LOGOS, INC.
TEXAS LOGOS, INC.
MISSISSIPPI LOGOS, INC.
GEORGIA LOGOS, INC.
SOUTH CAROLINA LOGOS, INC.
VIRGINIA LOGOS, INC.
MINNESOTA LOGOS, INC.
MICHIGAN LOGOS, INC.
NEW JERSEY LOGOS, INC.
FLORIDA LOGOS, INC.
KENTUCKY LOGOS, INC.
NEVADA LOGOS, INC.
Amended and Restated Credit Agreement
102
- 97 -
TENNESSEE LOGOS, INC.
KANSAS LOGOS, INC.
LAMAR ADVERTISING OF
HUNTINGTON - BRIDGEPORT, INC.
LAMAR ADVERTISING OF PENN, INC.
LAMAR ADVERTISING OF MISSOURI, INC.
LAMAR ADVERTISING OF MICHIGAN, INC.
LAMAR ELECTRICAL, INC.
LAMAR ADVERTISING OF SOUTH
DAKOTA, INC.
By:/s/ Keith Istre
----------------------------------------------
Title: Chief Financial Officer
LAMAR TEXAS LIMITED PARTNERSHIP
By: Lamar Texas General Partner, Inc.,
its general partner
By: /s/ Keith Istre
----------------------------------------------
Title: Chief Financial Officer
LAMAR TENNESSEE LIMITED PARTNERSHIP
LAMAR TENNESSEE LIMITED
PARTNERSHIP II
By: The Lamar Corporation, their general partner
By: /s/ Keith Istre
----------------------------------------------
Title: Chief Financial Officer
LAMAR AIR, L.L.C.
By: The Lamar Corporation, its manager
By: /s/ Keith Istre
----------------------------------------------
Title: Chief Financial Officer
Amended and Restated Credit Agreement
103
- 98 -
TLC PROPERTIES, L.L.C.
By: TLC Properties, Inc., its manager
By: /s/ Keith Istre
----------------------------------------------
Title: Chief Financial Officer
Amended and Restated Credit Agreement
104
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LENDERS
THE CHASE MANHATTAN BANK,
as Lender and Administrative Agent
By /s/ John P. Haltmaier
----------------------------------
Title: Vice President
ABN AMRO BANK N.V. BANKBOSTON, N.A.
By /s/ Laurie C. Tuzo By /s/ Lenny Mason
------------------------------------ ----------------------------------
Title: Group Vice President Title: Vice President
By /s/ Eric R. Hollingsworth
------------------------------------
Title: Assistant Vice President
BANK OF MONTREAL, CHICAGO THE BANK OF NEW YORK
BRANCH
By /s/ Karen Klapper By /s/ John R. Ciulla
------------------------------------ ----------------------------------
Title: Director Title: Assistant Vice President
Amended and Restated Credit Agreement
105
- 100 -
LENDERS
THE BANK OF NOVA SCOTIA BANK OF TOKYO MITSUBISHI
TRUST COMPANY
By /s/ Vincent J. Fitzgerald By /s/ Glenn B. Eckert
------------------------------------ ----------------------------------
Title: Authorized Signatory Title: Vice President
BANK ONE, LOUISIANA, CIBC INC.
NATIONAL ASSOCIATION
By /s/ Robert Schneckenberger By /s/ Tefta Ghilaga
------------------------------------ ----------------------------------
Title: Vice President Title: Executive Director
CIBC Oppenheimer Corp.,
As Agent
COMPAGNIE FINANCIERE DE CIC CITY NATIONAL BANK
ET DE L'UNION EUROPEENNE
By /s/ Marcus Edward By /s/ David C. Burdge
------------------------------------ ----------------------------------
Title: Vice President Title: Senior Vice President
By /s/ Sean Mounier
------------------------------------
Title: First Vice President
Amended and Restated Credit Agreement
106
- 101 -
LENDERS
CREDITANSTALT CORPORATE CRESTAR BANK
FINANCE, INC.
By /s/ Stephen W. Hipp By /s/ J. Eric Millham
------------------------------------ ----------------------------------
Title: Associate Title: Vice President
By /s/ Robert M. Biringer
----------------------------------------
Title: Executive Vice President
FIRST UNION NATIONAL BANK FLEET NATIONAL BANK
By /s/ Bruce W. Lofton By /s/ Tanya M. Crossley
------------------------------------ ----------------------------------
Title: Senior Vice President Title: Vice President
THE FUJI BANK, LIMITED HIBERNIA NATIONAL BANK
By /s/ Teiji Teramoto By /s/ Janet Olson Rack
------------------------------------ ----------------------------------
Title: Vice President & Manager Title: Senior Vice President
Amended and Restated Credit Agreement
107
- 102 -
LENDERS
THE LONG - TERM CREDIT BANK MERITA BANK PLC, NEW YORK
OF JAPAN, LIMITED BRANCH
By /s/ Sadao Muraoka By /s/ Clifford Abramsky
------------------------------------ ----------------------------------
Title: Head of Southwest Region Title: Vice President
By /s/ Paul Brooks
----------------------------------
Title: Vice President
MERCANTILE BANK MICHIGAN NATIONAL BANK
By /s/ Gail F. Scannell By /s/ Jeffery W. Billig
------------------------------------ ----------------------------------
Title: Vice President Title: Relationship Manager
THE MITSUBISHI TRUST &
BANKING CORPORATION PARIBAS
By /s/ Beatrice E. Kossodo By /s/ Lynne S. Randall
------------------------------------ ----------------------------------
Title: Senior Vice President Title: Director
By /s/ William B. Schink
----------------------------------
Title: Director
Amended and Restated Credit Agreement
108
- 103 -
LENDERS
STATE STREET BANK AND TRUST SUNTRUST BANK, CENTRAL
COMPANY FLORIDA N.A.
By /s/ John Tyler By /s/ Janet P. Sammons
---------------------------------- ----------------------------------
Title: Vice President Title: Vice President
UNION BANK OF CALIFORNIA, U.S. BANK NATIONAL
N.A. ASSOCIATION
By /s/ Christine P. Ball By /s/ Matthew S. Thoreson
---------------------------------- ----------------------------------
Title: Vice President Title: Vice President
Amended and Restated Credit Agreement
109
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement, dated
as of July 16, 1998 (as modified and supplemented and in effect from time to
time, the "Credit Agreement"), between Lamar Advertising Company, a Delaware
corporation (the "Borrower"), the Subsidiary Guarantors party thereto, the
lenders party thereto, and The Chase Manhattan Bank, as administrative agent for
such lenders. Terms defined in the Credit Agreement are used herein as defined
therein.
____________________ (the "Assignor") and ____________________ (the
"Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date as set forth in Schedule 1 hereto (the "Effective Date"), an
interest (the "Assigned Interest") in and to the Assignor's rights and
obligations under the Credit Agreement with respect to the credit facility
contained in the Credit Agreement set forth on Schedule 1 (the "Assigned
Facility"), in a principal amount and percentage as set forth on Schedule 1.
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, any other Loan Document or
any other instrument or document furnished pursuant thereto, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto, other than that it has not created any adverse claim
upon the interest being assigned by it hereunder and that such interest is free
and clear of any such adverse claim; [and] (ii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower, any of its Subsidiaries or any other obligation or the
performance or observance by the Borrower, any of its Subsidiaries or any other
obligor of any of their respective obligations under the Credit Agreement, any
other Loan Document or any other instrument or document furnished pursuant
hereto or thereto[; and (iii) attaches the promissory note held by it evidencing
the Assigned Facility and requests that the Administrative Agent exchange such
promissory note for a new promissory note payable to the Assignor (if the
Assignor has retained any interest in the Assigned Facility) and a new
promissory note payable to the Assignee in the respective amounts which reflect
the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date)].
Assignment and Acceptance
110
-2-
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.04 thereof, the financial
statements delivered pursuant to Section 6.01 thereof, if any, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, any
other Loan Document or any other instrument or document furnished pursuant
hereto or thereto; (iv) appoints and authorizes the Administrative Agent to take
such action as administrative agent on its behalf and to exercise such powers
and discretion under the Credit Agreement, the promissory note or any other
instrument or document furnished pursuant hereto or thereto as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (v) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States of America, its obligation pursuant to
Section 2.15(e) of the Credit Agreement to deliver the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement, or such other documents as
are necessary to indicate that all such payments are subject to such tax at a
rate reduced by an applicable tax treaty.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent pursuant to Section 10.04 of the Credit Agreement,
effective as of the Effective Date (which date shall not, unless otherwise
agreed to by the Administrative Agent, be earlier than five Business Days after
the date of such acceptance and recording by the Administrative Agent [and shall
in no event be earlier than the date the information contained herein is
recorded in the Register pursuant to Section 10.04 of the Credit Agreement]).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee which accrue subsequent to the Effective Date.
6. From and after the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder [and under
its Note(s)] and shall be bound by the provisions thereof and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement except as
provided in Section 10.05 of the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and construed
in accordance with the law of the State of New York.
Assignment and Acceptance
111
- 3 -
8. This Assignment and Acceptance may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Assignment and
Acceptance by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Assignment and Acceptance
112
- 4 -
Schedule 1 to Assignment and Acceptance
relating to the Amended and Restated Credit Agreement,
dated as of July 16, 1998, between Lamar Advertising
Company, the Subsidiary Guarantors party thereto, the
Lenders party thereto and The Chase Manhattan Bank, as
administrative agent for the Lenders(in such capacity, the
"Administrative Agent")
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Percentage
Amount Assigned Assigned
[ASSIGNEE] [ASSIGNOR]
By: By:
----------------------------- ------------------------------
Title: Title:
[Consented to and] Accepted:
THE CHASE MANHATTAN
BANK, as Administrative Agent
By:
------------------------------
Title:
[Consented to:
THE CHASE MANHATTAN
BANK, as Issuing Lender
By:
------------------------------
Title:
Assignment and Acceptance
113
EXHIBIT B
[Form of Opinion of Counsel to the Credit Parties]
July 16, 1998
To the Lenders party to the
Amended and Restated Credit
Agreement referred to below
and The Chase Manhattan Bank,
as Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to LAMAR ADVERTISING COMPANY (the "Borrower")
and the Subsidiary Guarantors, in connection with (i) the Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of July 16, 1998, between the
Borrower, the Subsidiary Guarantors party thereto, the lenders party thereto,
and The Chase Manhattan Bank, as Administrative Agent, providing for loans to be
made by said lenders to the Borrower in an aggregate principal amount not
exceeding $400,000,000 (which, in the circumstances contemplated by Section
2.01(c) of the Credit Agreement, may be increased to $500,000,000) and (ii) the
various other agreements, instruments and other documents referred to in the
next following paragraph. Terms used but not defined herein have the respective
meanings given to such terms in the Credit Agreement or, if not defined in the
Credit Agreement, in Annex 1 hereto. This opinion letter is being delivered
pursuant to Section 5.01(b) of the Credit Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Pledge Agreement; and
(c) such records of the Credit Parties and such other documents
as we have deemed necessary as a basis for the opinions
expressed below.
The Credit Agreement and the Pledge Agreement are collectively referred to as
the "Credit Documents".
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity with authentic original documents of all documents submitted to us as
copies. When relevant facts were not independently established, we have relied
upon statements of governmental officials and upon
Opinion of Counsel to the Credit Parties
114
- 2 -
representations made in or pursuant to the Credit Documents and certificates of
appropriate representatives of the Credit Parties.
In rendering the opinions expressed below, we have assumed, with
respect to all of the documents referred to in this opinion letter, that
(except, to the extent set forth in the opinions expressed below, as to the
Credit Parties):
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and constitute legal, valid,
binding and enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly authorized;
and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate
or other) to execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. Each Subsidiary
of the Borrower is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
respective state indicated opposite its name in Schedule 4.14 to the Credit
Agreement.
2. Each Credit Party has all requisite corporate or other power to
execute and deliver, and to perform its obligations under, the Credit
Documents to which it is a party. The Borrower has all requisite corporate
power to borrow under the Credit Agreement and to incur liability in
respect of Letters of Credit under the Credit Agreement.
3. The execution, delivery and performance by each Credit Party of
each Credit Document to which it is a party, and the borrowings and the
incurrence of liability in respect of Letters of Credit by the Borrower
under the Credit Agreement, have been duly authorized by all necessary
corporate or other action on the part of such Credit Party.
4. Each Credit Document has been duly executed and delivered by each
Credit Party party thereto.
5. Under Louisiana conflict of laws principles, the stated choice of
New York law to govern the Credit Documents will be honored by the courts
of the State of Louisiana and the Credit Documents will be construed in
accordance with, and will be treated as being governed by, the law of the
State of New York. However, if the Credit Documents were stated to be
governed by and construed in accordance with the law of the State of
Louisiana, or if a Louisiana court were to apply the law of the State of
Louisiana to the
Opinion of Counsel to the Credit Parties
115
- 3 -
Credit Documents, each Credit Document would nevertheless constitute the
legal, valid and binding obligation of each Credit Party party thereto,
enforceable against such Credit Party in accordance with its terms, except
as may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
the rights of creditors generally and except as the enforceability of the
Credit Documents is subject to the application of general principles of
equity (regardless of whether considered in a proceeding in equity or at
law), including, without limitation, (a) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and
(b) concepts of materiality, reasonableness, good faith and fair dealing.
6. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency of
the United States of America or the State of Louisiana is required on the
part of any Credit Party for the execution, delivery or performance by any
Credit Party of any of the Credit Documents or for the borrowings by the
Borrower under the Credit Agreement.
7. The execution, delivery and performance by each Credit Party of,
and the consummation by each Credit Party of the transactions contemplated
by, the Credit Documents to which such Credit Party is a party do not and
will not (a) violate any provision of the charter or by-laws of any Credit
Party, (b) violate any applicable law, rule or regulation, (c) violate any
order, writ, injunction or decree of any court or governmental authority or
agency or any arbitral award applicable to the Credit Parties or any of
their respective Subsidiaries of which we have knowledge (after due
inquiry) or (d) based on an opinion of the General Counsel of the Borrower,
result in a breach of, constitute a default under, require any consent
under, or result in the acceleration or required prepayment of any
indebtedness pursuant to the terms of, any agreement or instrument of which
we have knowledge (after due inquiry) to which the Credit Parties or any of
their respective Subsidiaries is a party or by which any of them is bound
or to which any of them is subject, or result in the creation or imposition
of any Lien upon any property of any Credit Party pursuant to, the terms of
any such agreement or instrument.
8. Except as set forth in Schedule 4.06 to the Credit Agreement, we
have no knowledge (after due inquiry) of any legal or arbitral proceedings,
or any proceedings by or before any governmental or regulatory authority or
agency, pending or threatened against or affecting the Credit Parties or
any of their respective Subsidiaries or any of their respective properties
that, if adversely determined, could have a Material Adverse Effect.
9. The issued and outstanding shares of capital stock or other
ownership interests of each Issuer (as defined in the Pledge Agreement)
consists of the type and number of shares or percentage ownership interest
described in Annex 1 to the Pledge Agreement. All of said shares of stock
of any corporation that is an Issuer have been duly and validly issued and
are fully paid and nonassessable.
Opinion of Counsel to the Credit Parties
116
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10. If the Pledge Agreement was stated to be governed by and construed
in accordance with the law of the State of Louisiana, or if a Louisiana
court were to apply the law of the State of Louisiana to the Pledge
Agreement, the Pledge Agreement would be effective to create, in favor of
the Administrative Agent for the benefit of the Administrative Agent and
the Secured Parties (as defined in the Pledge Agreement), a valid security
interest under the Uniform Commercial Code as in effect in the State of
Louisiana (the "UCC") in all of the right, title and interest of the
Securing Parties (as defined in the Pledge Agreement) in, to and under the
Pledged Equity (as defined in the Pledge Agreement) as collateral security
for the payment when due of the Secured Obligations (as defined in the
Pledge Agreement), except that (a) such security interest will continue in
Collateral after its sale, exchange or other disposition and in any
Proceeds thereof only to the extent provided in Section 9-306 of the UCC
and (b) such security interest in any portion of the Collateral in which a
Credit party acquires rights after the commencement of a case under the
Bankruptcy Code in respect of such Credit Party may be limited by Section
552 of the Bankruptcy Code.
11. The security interest referred to in paragraph 10 above in the
types of Collateral described below will be perfected as described below:
(a) such security interest in that portion of the Collateral
consisting of General Intangibles will, upon the creation of such
security interest, be perfected by filing the Financing Statements in
the filing offices listed in Annex 2 hereto for the jurisdictions
listed in Annex 2 hereto; provided that, if a Credit Party moves its
chief executive office to another jurisdiction, the effectiveness of
the Financing Statements naming such Credit Party as debtor will cease
on the expiration of four months after such change or, if earlier,
when perfection would have otherwise ceased, unless such security
interest becomes perfected under the law of such other jurisdiction
prior to such expiration; and
(b) such security interest in that portion of the Collateral
consisting of an Certificated Security represented by a Security
Certificate in bearer form or in registered form Indorsed to the
Administrative Agent or in blank by an effective Indorsement or
registered in the name of the Administrative Agent will, upon the
creation of such security interest, be perfected by the Administrative
Agent taking possession in the State of New York of such Security
Certificate, and such perfected security interest will remain
perfected thereafter so long as such Security Certificate is retained
by the Administrative Agent in its possession in the State of New
York.
12. With respect to the security interest referred to in paragraph 10
above in any Collateral perfected as described in paragraph 11 above, if
such Collateral consists of a Certificated Security and such security
interest therein is perfected by the Administrative Agent in the manner
specified in subparagraph (b) of paragraph 11 above for value without
notice (within the meaning of Section 8-105 of the UCC) of any Adverse
Claim to the Certificated Security, then the Administrative Agent will
acquire such security interest free of any Adverse Claim (as so defined).
Opinion of Counsel to the Credit Parties
117
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13. The obligations of the Credit Parties under the Loan Documents
constitute Senior Indebtedness (as defined in the Senior Subordinated Notes
Indenture) for all purposes of the Senior Subordinated Notes Indenture.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 10.03 of the Credit Agreement (and
any similar provisions in any of the other Credit Documents) may be limited
by (i) laws rendering unenforceable indemnification contrary to Federal or
state securities laws and the public policy underlying such laws and (ii)
laws limiting the enforceability of provisions exculpating or exempting a
party, or requiring indemnification of a party for, liability for its own
action or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) Clause (iii) of the second sentence of Section 3.02 of the Credit
Agreement may not be enforceable to the extent that the Guaranteed
Obligations (as defined in the Credit Agreement) are materially modified.
(C) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(D) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of
Louisiana) that limit the interest, fees or other charges such Lender may
impose for the loan or use of money or other credit, (ii) the next to the
last sentence of Section 2.16(d) of the Credit Agreement, (iii) the first
sentence of Section 10.09 of the Credit Agreement, insofar as such sentence
relates to the subject matter jurisdiction of the United States District
Court for the Southern District of New York to adjudicate any controversy
related to the Credit Documents and (iv) Section 3.06 of the Credit
Agreement.
(E) We express no opinion as to the applicability to the obligations
of any Subsidiary Guarantor (or the enforceability of such obligations) of
Section 548 of the Bankruptcy Code or any other provision of law relating
to fraudulent conveyances, transfers or obligations or of the provisions of
the law of the jurisdiction of incorporation of any Subsidiary Guarantor
restricting dividends, loans or other distributions by a corporation for
the benefit of its stockholders.
(F) We wish to point out that the obligations of the Securing Parties
(as defined in the Pledge Agreement), and the rights and remedies of the
Administrative Agent, under Sections 5.05 through 5.10 (inclusive) of the
Pledge Agreement may be subject to possible limitations upon the exercise
of remedial or procedural provisions contained in the Pledge Agreement,
provided that such limitations do not, in our opinion (but subject to the
other comments and qualifications set forth in this opinion letter), make
the remedies and procedures that will be afforded to the Administrative
Agent and the Secured Parties (as defined therein) inadequate for the
practical realization of the
Opinion of Counsel to the Credit Parties
118
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substantive benefits purported to be provided to the Administrative Agent
and such Secured Parties by the Pledge Agreement.
(G) With respect to our opinions in paragraphs 10, 11 and 12 above, we
express no opinion as to the creation, perfection or priority of any
security interest in (or other lien on) any Collateral (i) to the extent
that, pursuant to Section 9-104 of the Uniform Commercial Code, Article 9
of the Uniform Commercial Code does not apply thereto, (ii) consisting of
uncertificated securities (as defined in Section 8-102(a)(18) of the
Uniform Commercial Code), (iii) consisting of fixtures, timber to be cut or
minerals (including oil and gas), (iv) covered by a certificate of title or
(v) constituting proceeds of a letter of credit.
(H) We express no opinion as to the existence of, or the right, title
or interest of any Pledgor in, to or under, any of the Pledged Equity.
(I) In respect of our opinions set forth in paragraph 11 above, we
call your attention to each of La. R.S. 10:9-103(3)(b), which provides
that the law of the jurisdiction in which the debtor is located governs the
perfection and effect of perfection or nonperfection of a security interest
in, among other things, general intangibles; La. R.S. 10:9-103(3)(d), which
provides that a debtor shall be deemed located at its place of business if
it has one, at its chief executive office if it has more than one place of
business, otherwise at its principal residence; and La. R.S.
10:9-103(6)(b), which provides that during the time that a security
certificate is located in a jurisdiction, perfection of a security
interest, the effect of perfection or non-perfection, and the priority of a
security interest in the certificated security represented thereby are
governed by the local law of that jurisdiction. Accordingly, in respect of
the opinions set forth in paragraph 11, where the perfection and the effect
of perfection or non-perfection of a security interest is governed by the
law of state(s) other than Louisiana, we have assumed that the law of each
such state are identical to the law of Louisiana. In addition, we have
relied as to factual matters exclusively upon the certification of Borrower
as to the location of the Chief Executive Office of each Pledgor.
Partners or Associates of this Firm are members of the Bar of the
State of Louisiana and we do not hold ourselves out as being conversant with the
laws of any jurisdiction other than those of the United States of America and
the State of Louisiana, and we express no opinion as to the laws of any
jurisdiction other than those of the United States of America, the State of
Louisiana and the General Corporation Law of the State of Delaware.
At the request of our clients, this opinion letter is, pursuant to
Section 5.01(b) of the Credit Agreement, provided to you by us in our capacity
as counsel to the Credit Parties and may not be relied upon by any Person for
any purpose other than in connection with the transactions contemplated by the
Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
Opinion of Counsel to the Credit Parties
119
Annex 1
DEFINED TERMS
"bearer form", when used with respect to a Certificated Security, means a
form in which the Security is payable to the bearer of the Security Certificate
according to its terms but not by reason of an Indorsement.
"Certificated Security" means a Security that is represented by a
certificate.
"Collateral" has the meaning given to such term in the Pledge Agreement.
"General Intangibles" has the meaning given to such term in Section 9-106
of the UCC.
"Indorsement" has the meaning given to such term in Section 8-102(a)(11) of
the UCC.
"Proceeds" has the meaning given to such term in Section 9-306(1) of the
UCC.
"registered form", when used with respect to a Certificated Security, means
a form in which: (a) the Security Certificate specifies a Person entitled to the
Security; and (b) a transfer of the Security may be registered upon books
maintained for that purpose by or on behalf of the issuer of such Security, or
the Security Certificate so states.
"Security Certificate" means a certificate representing a Security.
"Security", except as otherwise provided in Section 8-103 of the UCC, means
an obligation of an issuer or a share, participation or other interest in an
issuer or in property or an enterprise of an issuer: (a) which is represented by
a Security Certificate in bearer or registered form, or the transfer of which
may be registered upon books maintained for that purpose by or on behalf of the
issuer; (b) which is one of a class or series or by its terms is divisible into
a class or series of shares, participations, interests or obligations; and (c)
which either (i) is, or is of a type, dealt in or traded on securities exchanges
or securities markets; or (ii) is a medium for investment and by its terms
expressly provides that it is a security governed by Article 8 of the UCC.
"Uncertificated Security" means a Security that is not represented by a
certificate.
Annex 1
120
Annex 2
LIST OF FILING OFFICES
Annex 2
121
EXHIBIT C
[Form of Opinion of Special Counsel]
July 16, 1998
To the Lenders party to the Amended
and Restated Credit Agreement
referred to below and The Chase
Manhattan Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan Bank
("Chase") in connection with the Amended and Restated Credit Agreement dated as
of July 16, 1998 (the "Credit Agreement") between Lamar Advertising Company (the
"Borrower"), the Subsidiary Guarantors party thereto, the Lenders party thereto,
and The Chase Manhattan Bank, as Administrative Agent. All capitalized terms
used but not defined herein have the respective meanings given to such terms in
the Credit Agreement or, if not defined in the Credit Agreement, in Annex 1
hereto. This opinion is being delivered pursuant to Section 5.01(c) of the
Credit Agreement.
In rendering the opinions expressed below, we have examined the
following agreements:
(a) the Credit Agreement; and
(b) the Pledge Agreement.
The Credit Agreement and the Pledge Agreement are collectively referred to as
the "Credit Documents".
In our examination, we have assumed the authenticity of all documents
submitted to us as originals and the conformity with authentic original
documents of all documents submitted to us as copies. When relevant facts were
not independently established, we have relied upon representations made in or
pursuant to the Credit Documents.
Opinion of Special Counsel
122
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In rendering the opinions expressed below, we have assumed that:
(i) the Credit Documents have been duly authorized by, have been
duly executed and delivered by, and (except to the extent
set forth in the opinions below as to the Credit Parties)
constitute legal, valid, binding and enforceable obligations
of, all of the parties to the Credit Documents;
(ii) all signatories to the Credit Documents have been duly
authorized; and
(iii) all of the parties to the Credit Documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver and
perform the Credit Documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
1. Each of the Credit Documents constitutes the legal, valid and
binding obligation of each Credit Party party thereto, enforceable against
such Credit Party in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or transfer or other similar laws relating to or affecting the rights of
creditors generally and except as the enforceability of the Credit
Documents is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b)
concepts of materiality, reasonableness, good faith and fair dealing.
2. The Pledge Agreement is effective to create, in favor of the
Administrative Agent for the benefit of the Administrative Agent and the
Secured Parties (as defined in the Pledge Agreement), a valid security
interest under the Uniform Commercial Code as in effect in the State of New
York (the "UCC") in all of the right, title and interest of the Securing
Parties (as defined in the Pledge Agreement) in, to and under the Pledged
Equity (as defined in the Pledge Agreement) as collateral security for the
payment when due of the Secured Obligations (as defined in the Pledge
Agreement) except that (a) such security interest will continue in the
Pledged Equity after its sale, exchange or other disposition only to the
extent provided in Section 9-306 of the UCC and (b) such security interest
in any portion of the Pledged Equity in which a Credit Party acquires
rights after the commencement of a case under the Bankruptcy Code in
respect of such Credit Party may be limited by Section 552 of the
Bankruptcy Code.
3. The security interest referred to in paragraph 2 above in that
portion of the Pledged Equity consisting of a Certificated Security
represented by a Security Certificate will, upon the creation of such
security interest, be perfected by the Administrative Agent taking
possession in the State of New York of such Security Certificate, and such
perfected security interest will remain perfected thereafter so long as
such Security
Opinion of Special Counsel
123
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Certificate is retained by the Administrative Agent in its possession in
the State of New York.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 10.03 of the Credit Agreement (and
any similar provisions in any of the other Credit Documents) may be limited
by laws limiting the enforceability of provisions exculpating or exempting
a party, or requiring indemnification of a party for, liability for its own
action or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) Clause (iii) of the second sentence of Section 3.02 of the Credit
Agreement may not be enforceable to the extent that the Guaranteed
Obligations (as defined in the Credit Agreement) are materially modified.
(C) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(D) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest, fees or other charges such Lender may impose
for the loan or use of money or other credit, (ii) the next to the last
sentence of Section 2.16(d) of the Credit Agreement, (iii) the first
sentence of Section 10.09 of the Credit Agreement, insofar as such sentence
relates to the subject matter jurisdiction of the United States District
Court for the Southern District of New York to adjudicate any controversy
related to the Credit Documents and (iv) Section 3.06 or 3.09 of the Credit
Agreement.
(E) We express no opinion as to the applicability to the obligations
of any Subsidiary Guarantor (or the enforceability of such obligations) of
Section 548 of the Bankruptcy Code, Article 10 of the New York Debtor and
Creditor Law or any other provision of law relating to fraudulent
conveyances, transfers or obligations or of the provisions of the law of
the jurisdiction of incorporation of any Subsidiary Guarantor restricting
dividends, loans or other distributions by a corporation for the benefit of
its stockholders.
(F) We wish to point out that the obligations of the Securing Parties
(as defined in the Pledge Agreement), and the rights and remedies of the
Administrative Agent, under Sections 5.05 through 5.10 (inclusive) of the
Pledge Agreement may be subject to possible limitations upon the exercise
of remedial or procedural provisions contained in the Pledge Agreement,
provided that such limitations do not, in our opinion (but subject to the
other comments and qualifications set forth in this opinion letter), make
the remedies and procedures that will be afforded to the Administrative
Agent and the Secured Parties (as defined therein) inadequate for the
practical realization of the
Opinion of Special Counsel
124
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substantive benefits purported to be provided to the Administrative Agent
and such Secured Parties by the Pledge Agreement.
(G) With respect to our opinions in paragraph 2 above, we express no
opinion as to the creation of any security interest in (or other lien on)
any Collateral other than the Pledged Equity.
(H) Except as provided in paragraph 3 above, we express no opinion as
to the perfection of any security interest in any Pledged Equity.
(I) We express no opinion as to the priority of any security interest
in any Pledged Equity.
(J) We express no opinion as to the existence of, or the right, title
or interest of any Pledgor in, to or under, any of the Pledged Equity.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction. At the
request of our clients, this opinion is rendered solely to you in connection
with the above matter. This opinion may not be relied upon by you for any other
purpose or relied upon by any other Person (other than your successors and
assigns as Lenders and Persons that acquire participations in your extensions of
credit under the Credit Agreement) without our prior written consent.
Very truly yours,
RJW/CDP
Opinion of Special Counsel
125
Annex 1
DEFINED TERMS
"Certificated Security" has the meaning given to such term in Section
8-102(a)(4) of the UCC.
"Collateral" has the meaning given to such term in the Pledge Agreement.
"Security Certificate" has the meaning given to such term in Section
8-102(a)(16) of the UCC.
Annex 1 to Opinion of Special Counsel
126
EXHIBIT D
[Form of Amended and Restated Pledge Agreement]
AMENDED AND RESTATED PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT dated as of July 16, 1998
between LAMAR ADVERTISING COMPANY, a corporation duly organized and validly
existing under the laws of the State of Delaware (the "Borrower"); each of the
subsidiaries of the Borrower listed on the signature pages hereto under the
caption "INITIAL SUBSIDIARY GUARANTORS" (the "Initial Subsidiary Guarantors");
each of the additional entities, if any, that becomes a "Subsidiary Guarantor"
hereunder as contemplated by Section 6.10 (each an "Additional Subsidiary
Guarantor" and together with the Initial Subsidiary Guarantors, the "Subsidiary
Guarantors"; the Subsidiary Guarantors together with the Borrower, being herein
called the "Securing Parties"); and The Chase Manhattan Bank, as administrative
agent for the Lenders party to the Credit Agreement referred to below (in such
capacity, together with its successors in such capacity, the "Administrative
Agent").
The Securing Parties are parties to a Credit Agreement dated as of
December 18, 1996 (the "Existing Credit Agreement") which is being amended and
restated pursuant to an Amended and Restated Credit Agreement dated as of July
16, 1998 (as modified and supplemented and in effect from time to time, the
"Credit Agreement") providing, subject to the terms and conditions thereof, for
extensions of credit (by means of loans and letters of credit) to be made by the
Lenders named therein (collectively, together with any entity that becomes a
"Lender" party to the Credit Agreement after the date hereof as provided
therein, the "Lenders" and, together with Administrative Agent and any
successors or assigns of any of the foregoing, the "Secured Parties") to the
Borrower in an aggregate principal or face amount not exceeding $400,000,000
(which, in the circumstances contemplated by Section 2.01(c) thereof, may be
increased to $500,000,000). In addition, the Borrower may from time to time be
obligated to one or more of the Lenders under the Credit Agreement in respect of
Hedging Agreements under and as defined in the Credit Agreement (collectively,
the "Hedging Agreements").
The Securing Parties and the Administrative Agent are parties to a
Pledge Agreement dated as of December 18, 1996 (the "Existing Pledge
Agreement"), pursuant to which the Securing Parties pledged and granted a
security interest in the Collateral (as defined therein) as security for the
Secured Obligations (as defined therein).
To induce the Secured Parties to amend and restate the Existing Credit
Agreement and to extend credit thereunder, and to induce the Lenders to extend
credit to the Borrower under Hedging Agreements, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Securing Parties have agreed to pledge and grant a security interest in the
Collateral (as so defined) as security for the Secured Obligations (as so
defined) and to confirm the prior pledge and grant of a security interest in the
Collateral
Amended and Restated Pledge Agreement
127
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pursuant to the Existing Pledge Agreement and, in that connection to amend and
restate in its entirety the Existing Pledge Agreement. Accordingly, the
parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. Terms defined in the Credit Agreement are
used herein as defined therein. In addition, as used herein:
"Collateral" has the meaning assigned to such term in Article III.
"Collateral Account" has the meaning assigned to such term in Section
5.01(a).
"Equity Collateral" means, collectively, the Collateral described in
clauses (a) through (c) of Article III and the proceeds of and to any such
property and, to the extent related to any such property or such proceeds, all
books, correspondence, credit files, records, invoices and other papers.
"Issuers" means, collectively, (a) the respective corporations,
partnerships or other entities identified next to the names of the Securing
Parties on Annex 1 under the caption "Issuer" and (b) any other entity that
shall at any time be a subsidiary of any of the Securing Parties.
"Pledged Equity" has the meaning assigned to such term in paragraph
(a) of Article III.
"Secured Obligations" means, collectively, (a) in the case of the
Borrower, the principal of and interest on the Loans made by the Lenders to the
Borrower, all LC Disbursements and all other amounts from time to time owing to
the Secured Parties by the Borrower under the Credit Agreement or any Hedging
Agreement, (b) in the case of each Subsidiary Guarantor, all obligations of such
Subsidiary Guarantor under the Credit Agreement (including, without limitation,
in respect of its Guarantee under Article III of the Credit Agreement) and (c)
in the case of each Securing Party, all other obligations of such Securing Party
to the Secured Parties and the Administrative Agent hereunder.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
SECTION 1.02. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
Amended and Restated Pledge Agreement
128
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agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not
to any particular provision hereof, (d) all references herein to Articles,
Sections and Exhibits shall be construed to refer to Articles and Sections of,
and Exhibits to, this Agreement and (e) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
ARTICLE II
Representations and Warranties
Each Securing Party represents and warrants to each Secured Party
that:
(a) Such Securing Party is the sole beneficial owner of the Collateral
in which it purports to grant a security interest pursuant to Article III and no
Lien exists or will exist upon such Collateral at any time (and no right or
option to acquire the same exists in favor of any other Person), except for
Liens permitted under Section 7.02 of the Credit Agreement and except for the
pledge and security interest in favor of the Administrative Agent for the
benefit of the Secured Parties created or provided for herein, which pledge and
security interest will, upon perfection under the applicable provisions of the
Uniform Commercial Code (but subject in any event to such Liens permitted under
said Section 7.02) constitute a first priority perfected pledge and security
interest in and to all of such Collateral, to the extent such pledge and
security interest can be perfected under the Uniform Commercial Code.
(b) The Pledged Equity identified under the name of such Securing
Party in Annex 1 is, and all other Pledged Equity in which such Securing Party
shall hereafter grant a security interest pursuant to Article III will be, duly
authorized, validly existing, fully paid and non-assessable (in the case of any
equity interest in a corporation) and duly issued and outstanding (in the case
of any equity interest in any other entity), and none of such Pledged Equity is
or will be subject to any contractual restriction, or any restriction under the
charter, by-laws, partnership agreement or other organizational document of the
respective Issuer of such Pledged Equity, upon the transfer of such Pledged
Equity (except for any such restriction contained herein or identified in Annex
1).
(c) The Pledged Equity identified under the name of such Securing
Party in Annex 1 constitutes all of the issued and outstanding shares of capital
stock, partnership or other ownership interest of any class or character of the
Issuers (and, in the case of Foreign Subsidiaries, 65% of the voting common
stock thereof and 100% of any other capital stock thereof) beneficially owned by
such Securing Party on the date hereof (whether or not registered in the name of
the such Securing Party) and Annex 1 correctly identifies, as at the date
hereof,
Amended and Restated Pledge Agreement
129
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the respective Issuers of such Pledged Equity and (in the case of any corporate
Issuer) the respective class and par value of the shares comprising such
Pledged Equity and the respective number of shares (and registered owners
thereof) represented by each such certificate.
ARTICLE III
Collateral
As collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the Secured
Obligations, each Securing Party hereby pledges and grants to the Administrative
Agent (and hereby confirms the prior pledge and grant to the Administrative
Agent under the Existing Pledge Agreement), for the benefit of the Secured
Parties as hereinafter provided, a security interest in all of such Securing
Party's right, title and interest in the following property, whether now owned
by such Securing Party or hereafter acquired and whether now existing or
hereafter coming into existence (all being collectively referred to herein as
"Collateral"):
(a) the shares of common and preferred stock of, or partnership and
other ownership interest in, the Issuers identified in Annex 1 next to the
name of such Securing Party (as the same shall be supplemented from time to
time under a Joinder Agreement executed pursuant to Section 6.10) and all
other shares of capital stock, or partnership or other ownership interest,
of whatever class or character of the Issuers, now or hereafter owned by
such Securing Party, in each case together with the certificates evidencing
the same (collectively, the "Pledged Equity");
(b) all shares, securities, moneys or property representing a dividend
on any of the Pledged Equity, or representing a distribution or return of
capital upon or in respect of the Pledged Equity, or resulting from a
split-up, revision, reclassification or other like change of the Pledged
Equity or otherwise received in exchange therefor, and any subscription
warrants, rights or options issued to the holders of, or otherwise in
respect of, the Pledged Equity; and
(c) without affecting the obligations of such Securing Party under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which an Issuer is not the
surviving entity, all ownership interests of any class or character of the
successor entity (unless such successor entity is such Securing Party
itself) formed by or resulting from such consolidation or merger (the
Pledged Equity, together with all other certificates, shares, securities,
properties or moneys as may from time to time be pledged hereunder pursuant
to clause (a) or (b) above and this clause (c) being herein collectively
called the "Equity Collateral"),
(d) the balance from time to time in the Collateral Account; and
(e) all proceeds of and to any of the property of such Securing Party
described in the preceding clauses of this Article III (including, without
limitation, all causes of
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action, claims and warranties now or hereafter held by any Securing Party
in respect of any of the items listed above) and, to the extent related to
any property described in said clauses or such proceeds, all books,
correspondence, credit files, records, invoices and other papers,
provided that (i) in the case of any of the foregoing that consists of general
or limited partnership interests in a general or limited partnership, the
security interest hereunder shall be deemed to be created only to the maximum
extent permitted under the applicable organizational instrument pursuant to
which such partnership is formed, and (ii) in the case of any of the foregoing
that consists of capital stock in any Foreign Subsidiary, shall be limited to
65% of the voting common stock of such Subsidiary and 100% of any other capital
stock of such Subsidiary).
ARTICLE IV
Collateral Account
SECTION 4.01. Establishment of Collateral Account. Each of the
Securing Parties hereby establishes with the Administrative Agent a cash
collateral account (the "Collateral Account") in the name and under the control
of the Administrative Agent into which there shall be deposited from time to
time such amounts as are required to be paid to the Administrative Agent under
Section 2.04(i) of the Credit Agreement. As collateral security for the prompt
payment in full when due of the Securing Parties' obligations in the first
instance in respect of LC Exposure and, after the payment in full of all LC
Exposure and the termination or expiration of all Letters of Credit, for all
other Secured Obligations, each of the Securing Parties hereby pledges and
grants to the Administrative Agent, for the benefit of the Secured Parties as
provided herein, a security interest in all of its right, title and interest in
and to the Collateral Account and the balance from time to time in the
Collateral Account (including the investments and reinvestments therein provided
for below). The balance from time to time in the Collateral Account shall not
constitute payment of any Secured Obligations until applied by the
Administrative Agent as provided herein. Anything in this Agreement to the
contrary notwithstanding, funds held in the Collateral Account shall be subject
to withdrawal only as provided in this Article IV.
SECTION 4.02. Investments. Amounts on deposit in the Collateral
Account shall be invested and reinvested by the Administrative Agent in such
Permitted Investments as the Securing Parties shall determine in their sole
discretion, provided that (i) failing receipt by the Administrative Agent of
instructions from the Securing Parties, the Administrative Agent may invest and
reinvest such amounts in such Permitted Investments as the Administrative Agent
shall determine in its sole discretion and (ii) the approval of the
Administrative Agent shall be required for the investments and reinvestments to
be made during any period while a Default has occurred and is continuing. All
such investments and reinvestments shall be held in the name and be under the
control of the Administrative Agent.
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SECTION 4.03. Application. If an Event of Default shall have occurred
and be continuing, the Administrative Agent may (and, if instructed by the
Required Lenders, shall) in its (or their) discretion at any time and from time
to time elect to liquidate any such investments and reinvestments and credit the
proceeds thereof to the Collateral Account and apply or cause to be applied such
proceeds and any other balances in the Collateral Account to the payment of any
of the Secured Obligations due and payable. If (i) no Event of Default has
occurred and is continuing and (ii) all of the Secured Obligations have been
paid in full, the Administrative Agent shall, from time to time, at the request
of the Securing Parties, deliver to the Securing Parties, against receipt but
without any recourse, warranty or representation whatsoever, such of the
balances in the Collateral Account as exceed the then-outstanding LC Exposure,
provided that, in any event, when all of the Secured Obligations shall have been
paid in full and all Letters of Credit have expired or been terminated, the
Administrative Agent shall promptly deliver to the Securing Parties, against
receipt but without any recourse, warranty or representation whatsoever, the
balance remaining in the Collateral Account.
SECTION 4.04. Fees. Each of the Securing Parties shall pay to the
Administrative Agent from time to time such fees as the Administrative Agent
normally charges for similar services in connection with the Administrative
Agent's administration of the Collateral Account and investments and
reinvestments of funds therein.
ARTICLE V
Further Assurances; Remedies
In furtherance of the grant of the pledge and security interest
pursuant to Article III, each Securing Party hereby agrees with each Secured
Party as follows:
SECTION 5.01. Delivery and Other Perfection. Such Securing Party
shall:
(a) if any of the shares, securities, moneys or property required to
be pledged by such Securing Party under clauses (a), (b) or (c) of Article
III are received by such Securing Party, forthwith either (x) transfer and
deliver to the Administrative Agent such shares or securities so received
by such Securing Party (together with the certificates for any such shares
and securities duly endorsed in blank or accompanied by undated stock
powers duly executed in blank), all of which thereafter shall be held by
the Administrative Agent, pursuant to the terms of this Agreement, as part
of the Collateral or (y) take such other action as the Administrative Agent
reasonably shall deem necessary or appropriate to duly record the Lien
created hereunder in such shares, securities, moneys or property in said
clauses (a), (b) and (c);
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in the reasonable judgment of the Administrative
Agent) to create, preserve, perfect or validate the security interest
granted pursuant hereto or to enable the Administrative Agent to exercise
and enforce its rights hereunder with respect to such pledge and
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security interest, including causing any or all of the Equity Collateral to
be transferred of record into the name of the Administrative Agent or its
nominee (and the Administrative Agent agrees that if any Equity Collateral
is transferred into its name or the name of its nominee, the Administrative
Agent will thereafter promptly give to such Securing Party copies of any
notices and communications received by it with respect to the Equity
Collateral);
(c) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such
manner as the Administrative Agent may reasonably require in order to
reflect the security interests granted by this Agreement; and
(d) permit representatives of the Administrative Agent, upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Administrative Agent to be present at such
Securing Party's place of business to receive copies of all communications
and remittances relating to the Collateral, and forward copies of any
notices or communications received by such Securing Party with respect to
the Collateral, all in such manner as the Administrative Agent may
reasonably require.
SECTION 5.02. Other Financing Statements and Liens. Except as
otherwise permitted under Section 7.02 of the Credit Agreement, without the
prior written consent of the Administrative Agent (granted with the
authorization of the Required Lenders), no Securing Party shall file or suffer
to be on file, or authorize or permit to be filed or to be on file, in any
jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Administrative Agent is not named as the sole secured
party for the benefit of the Secured Parties.
SECTION 5.03. Preservation of Rights. The Administrative Agent shall
not be required to take steps necessary to preserve any rights against prior
parties to any of the Collateral.
SECTION 5.04. Special Provisions Relating to Equity Collateral.
(a) So long as no Event of Default shall have occurred and be
continuing, each Securing Party shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Equity Collateral for
all purposes not inconsistent with the terms of this Agreement, the other Loan
Documents or any other instrument or agreement referred to herein or therein,
provided that such Securing Party agrees that it will not vote the Equity
Collateral in any manner that is inconsistent with the terms of this Agreement,
the other Loan Documents or any such other instrument or agreement; and the
Administrative Agent shall execute and deliver to such Securing Party or cause
to be executed and delivered to such Securing Party all such proxies, powers of
attorney, dividend and other orders, and all such instruments, without recourse,
as such Securing Party may reasonably request for the purpose of enabling such
Securing Party to exercise the rights and powers that it is entitled to exercise
pursuant to this Section 5.04(a).
Amended and Restated Pledge Agreement
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(b) Unless and until an Event of Default has occurred and is
continuing, such Securing Party shall, subject to Article V, be entitled to
receive and retain any dividends, distributions or proceeds in respect of the
Equity Collateral.
SECTION 5.05. Events of Default, Etc. During the period during which
an Event of Default shall have occurred and be continuing:
(a) each Securing Party shall, at the request of the Administrative
Agent, assemble the Collateral owned by it at such place or places,
reasonably convenient to both the Administrative Agent and such Securing
Party, designated in its request;
(b) the Administrative Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Administrative Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted,
including the right, to the maximum extent permitted by law, to exercise
all voting, consensual and other powers of ownership pertaining to the
Collateral as if the Administrative Agent were the sole and absolute owner
thereof (and each Securing Party agrees to take all such action as may be
appropriate to give effect to such right);
(d) the Administrative Agent in its discretion may, in its name or in
the name of the Securing Parties or otherwise, demand, sue for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(e) the Administrative Agent may, upon ten business days' prior
written notice to the Securing Parties of the time and place, with respect
to the Collateral or any part thereof that shall then be or shall
thereafter come into the possession, custody or control of the Secured
Parties or any of their respective agents, sell, lease, assign or otherwise
dispose of all or any part of such Collateral, at such place or places as
the Administrative Agent deems best, and for cash or for credit or for
future delivery (without thereby assuming any credit risk), at public or
private sale, without demand of performance or notice of intention to
effect any such disposition or of the time or place thereof (except such
notice as is required above or by applicable statute and cannot be waived),
and any Secured Party or anyone else may be the purchaser, lessee, assignee
or recipient of any or all of the Collateral so disposed of at any public
sale (or, to the extent permitted by law, at any private sale) and
thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory or
otherwise), of the Securing Parties, any such demand, notice and right or
equity being hereby
Amended and Restated Pledge Agreement
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expressly waived and released. The Administrative Agent may, without notice
or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
the sale, and such sale may be made at any time or place to which the sale
may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
5.05 shall be applied in accordance with Section 5.09.
The Securing Parties recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Administrative Agent may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Securing Parties acknowledge that any such private sales may be at prices and on
terms less favorable to the Administrative Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Administrative Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit the respective Issuer or
issuer thereof to register it for public sale.
SECTION 5.06. Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05 are insufficient
to cover the costs and expenses of such realization and the payment in full of
the Secured Obligations, the Securing Parties shall remain liable for any
deficiency.
SECTION 5.07. Removals, Etc. Without at least 30 days' prior written
notice to the Administrative Agent, no Securing Party shall (i) maintain any of
its books and records with respect to the Collateral at any office or maintain
its principal place of business other than at the address for notices to the
Borrower specified in Section 10.01 of the Credit Agreement or (ii) change its
name, or the name under which it does business, from the name shown on the
signature pages hereto.
SECTION 5.08. Private Sale. No Secured Party shall incur any liability
as a result of the sale of the Collateral, or any part thereof, at any private
sale pursuant to Section 5.05 conducted in a commercially reasonable manner. So
long as such sale is conducted in a commercially reasonable manner, each
Securing Party hereby waives any claims against the Secured Parties arising by
reason of the fact that the price at which the Collateral may have been sold at
such a private sale was less than the price that might have been obtained at a
public sale or was less than the aggregate amount of the Secured Obligations,
even if the Administrative Agent accepts the first offer received and does not
offer the Collateral to more than one offeree.
SECTION 5.09. Application of Proceeds. Except as otherwise herein
expressly provided, the proceeds of any collection, sale or other realization of
all or any part of the Collateral pursuant hereto, and any other cash at the
time held by the Administrative Agent under Article IV or this Article V, shall
be applied by the Administrative Agent:
Amended and Restated Pledge Agreement
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First, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Administrative Agent and the fees and expenses of its
agents and counsel, and all expenses incurred and advances made by the
Administrative Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each case
equally and ratably in accordance with the respective amounts thereof then
due and owing or as the Secured Parties holding the same may otherwise
agree, provided that such proceeds (to the extent representing the balance
in the Collateral Account) shall be applied first to the payment of LC
Disbursements and second, after the payment in full of all LC Exposure, and
the termination or expiration of all Letters of Credit, to the other
Secured Obligations; and
Finally, to the payment to the respective Securing Party, or their
respective successors or assigns, or as a court of competent jurisdiction
may direct, of any surplus then remaining.
As used in this Article V, "proceeds" of Collateral shall mean cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Securing Parties or any issuer of or
obligor on any of the Collateral.
SECTION 5.10. Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Administrative Agent while no Event of Default
has occurred and is continuing, upon the occurrence and during the continuance
of any Event of Default the Administrative Agent is hereby appointed the
attorney-in-fact of the Securing Parties for the purpose of carrying out the
provisions of this Article and taking any action and executing any instruments
that the Administrative Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing, so
long as the Administrative Agent shall be entitled under this Article to make
collections in respect of the Collateral, the Administrative Agent shall have
the right and power to receive, endorse and collect all checks made payable to
the order of any Securing Party representing any dividend, payment or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
SECTION 5.11. Perfection. Prior to or concurrently with the execution
and delivery of this Agreement, each Securing Party shall (i) file such
financing statements and other documents in such offices as the Administrative
Agent may request to perfect the security interests granted by Article III and
(ii) deliver to the Administrative Agent all certificates identified in Annex 1
hereto, accompanied by undated stock powers duly executed in blank.
SECTION 5.12. Termination. When all Secured Obligations shall have
been paid in full and the Commitments of the Lenders under the Credit Agreement
shall have expired or been terminated, this Agreement shall terminate, and the
Administrative Agent shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse,
Amended and Restated Pledge Agreement
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warranty or representation whatsoever, any remaining Collateral and money
received in respect thereof, to or on the order of the respective Securing
Party. The Administrative Agent shall also execute and deliver to each
Securing Party upon such termination such Uniform Commercial Code termination
statements and such other documentation as shall be reasonably requested by the
such Securing Party to effect the termination and release of the Liens on the
Collateral.
SECTION 5.13. Further Assurances. Each Securing Party agrees that,
from time to time upon the written request of the Administrative Agent, such
Securing Party will execute and deliver such further documents and do such other
acts and things as the Administrative Agent may reasonably request in order
fully to effect the purposes of this Agreement.
ARTICLE VI
Miscellaneous
SECTION 6.01. Notices. All notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy, as
follows:
(a) if to the Borrower, to it at 5551 Corporate Boulevard, Baton
Rouge, Louisiana, 70896, Attention of Keith Istre (Telecopy No. (504)
923-0658);
(b) if to any Securing Party other than the Borrower, to such Securing
Party care of the Borrower at the address for notices indicated in clause
(a) above; and
(c) if to the Administrative Agent, to The Chase Manhattan Bank, Agent
Bank Services Group, Grand Central Tower, 140 East 45th Street, New York,
New York 10017, Attention of Janet Belden (Telecopy No. (212) 270-0002),
with a copy to The Chase Manhattan Bank, 270 Park Avenue, New York, New
York 10081, Attention of John Haltmaier (Telecopy No. 212- 270-0848).
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 6.02. Waivers; Amendments.
(a) No failure or delay by any Secured Party in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Secured Parties hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure by the Securing
Parties therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 6.02, and then such
Amended and Restated Pledge Agreement
137
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waiver or consent shall be effective only in the specific instance and for the
purpose for which given.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Securing Parties party thereto, and by the Administrative
Agent with the consent of the appropriate Secured Parties as more particularly
provided in Section 10.02(c) of the Credit Agreement.
SECTION 6.03. Expenses.
(a) The Securing Parties jointly and severally agree to reimburse each
of the Secured Parties for all reasonable costs and expenses of the Secured
Parties (including, without limitation, the reasonable fees and expenses of
legal counsel) in connection with (i) any Default and any enforcement or
collection proceeding resulting therefrom, including, without limitation, all
manner of participation in or other involvement with (w) performance by the
Administrative Agent of any obligations of the Securing Parties in respect of
the Collateral that the Securing Parties have failed or refused to perform, (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the Collateral, and
for the care of the Collateral and defending or asserting rights and claims of
the Administrative Agent in respect thereof, by litigation or otherwise, (y)
judicial or regulatory proceedings and (z) workout, restructuring or other
negotiations or proceedings (whether or not the workout, restructuring or
transaction contemplated thereby is consummated) and (ii) the enforcement of
this Section 6.03, and all such costs and expenses shall be Secured Obligations
entitled to the benefits of the collateral security provided pursuant to Article
III hereof.
(b) All amounts due under this Section 6.03 shall be payable promptly
after written demand therefor.
SECTION 6.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the Securing Parties, the Secured Parties and each holder of the
Secured Obligations, except that no Securing Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent (and any attempted assignment or transfer by
any Securing Party without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the Securing Parties and the respective successors and assigns of
the Securing Parties, the Secured Parties and each holder of the Secured
Obligations) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
SECTION 6.05. Counterparts. This Agreement may be executed in
counterparts (and by the parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract.
SECTION 6.06. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality
Amended and Restated Pledge Agreement
138
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and enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
SECTION 6.07. Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
SECTION 6.08. Headings. Article and Section headings used herein are
for convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION 6.09. Agents and Attorneys-in-Fact. The Administrative Agent
may employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
SECTION 6.10. Additional Subsidiary Guarantors. As contemplated by
Section 6.11(a) of the Credit Agreement, in the event that any Securing Party
shall form or acquire any new Subsidiary after the date hereof, such Securing
Party will cause such new Subsidiary to execute and deliver to the
Administrative Agent a Joinder Agreement in the form of Exhibit E to the Credit
Agreement (and, thereby, to become a party to the Credit Agreement as a
"Subsidiary Guarantor" thereunder, and under this Agreement, and to pledge and
grant a security interest in any of its property of the type included in
"Collateral" under this Agreement to the Administrative Agent for the benefit of
the Secured Parties). Accordingly, upon the execution and delivery of any such
Joinder Agreement by any such new Subsidiary, such new Subsidiary shall
automatically and immediately, and without any further action on the part of any
Person, become a "Securing Party" under and for all purposes of this Agreement,
and Annex 1 hereto shall be deemed to be supplemented in the manner specified in
said Joinder Agreement.
Amended and Restated Pledge Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Pledge Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
LAMAR ADVERTISING COMPANY
By:
----------------------------------
Name:
Title:
INITIAL SUBSIDIARY GUARANTORS
INTERSTATE LOGOS, INC.
THE LAMAR CORPORATION
LAMAR ADVERTISING OF MOBILE, INC.
LAMAR ADVERTISING OF COLORADO SPRINGS,
INC.
LAMAR ADVERTISING OF SOUTH MISSISSIPPI,
INC.
LAMAR ADVERTISING OF JACKSON, INC.
LAMAR TEXAS GENERAL PARTNER, INC.
LAMAR ADVERTISING OF SOUTH GEORGIA, INC.
LAMAR TENNESSEE LIMITED PARTNER, INC.
TLC PROPERTIES, INC.
TLC PROPERTIES II, INC.
LAMAR PENSACOLA TRANSIT, INC.
LAMAR ADVERTISING OF YOUNGSTOWN, INC.
NEBRASKA LOGOS, INC.
OKLAHOMA LOGO SIGNS, INC.
MISSOURI LOGOS, INC.
OHIO LOGOS, INC.
UTAH LOGOS, INC.
TEXAS LOGOS, INC.
MISSISSIPPI LOGOS, INC.
GEORGIA LOGOS, INC.
SOUTH CAROLINA LOGOS, INC.
VIRGINIA LOGOS, INC.
MINNESOTA LOGOS, INC.
MICHIGAN LOGOS, INC.
NEW JERSEY LOGOS, INC.
FLORIDA LOGOS, INC.
KENTUCKY LOGOS, INC.
NEVADA LOGOS, INC.
TENNESSEE LOGOS, INC.
KANSAS LOGOS, INC.
Amended and Restated Pledge Agreement
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LAMAR ADVERTISING OF HUNTINGTON
BRIDGEPORT, INC.
LAMAR ADVERTISING OF PENN, INC.
LAMAR ADVERTISING OF MISSOURI, INC.
LAMAR ADVERTISING OF MICHIGAN, INC.
LAMAR ELECTRICAL, INC.
LAMAR ADVERTISING OF SOUTH DAKOTA, INC.
By:
-----------------------------------
Title:
LAMAR TEXAS LIMITED PARTNERSHIP
By: Lamar Texas General Partner, Inc.,
its general partner
By:
-----------------------------------
Title:
LAMAR TENNESSEE LIMITED PARTNERSHIP
LAMAR TENNESSEE LIMITED PARTNERSHIP II
By: The Lamar Corporation, their
general partner
By:
-----------------------------------
Title:
LAMAR AIR, L.L.C.
By: The Lamar Corporation, its manager
By:
-----------------------------------
Title:
TLC PROPERTIES, L.L.C.
By: TLC Properties, Inc., its manager
By:
-----------------------------------
Title:
Amended and Restated Pledge Agreement
141
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ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
-----------------------------------
Name:
Title:
Amended and Restated Pledge Agreement
142
ANNEX 1
Pledged Equity
Securing Class and par No. Cert. Percent
Party Issuer Value Shares No. Ownership
----- ------ ----- ------ --- ---------
Lamar Interstate Common/ 667 4 66 2/3%
Advertising Company Logos, Inc. No Par Value
The Lamar Corporation Interstate Logos, Inc. Common/ 333 3 33 1/3%
No Par Value
Lamar Advertising The Lamar Corporation Class A 1,000 549 100%
Company Common/
No Par Value
Interstate Logos, Inc. Canadian TODS Limited Common/ 65 3 65%
No Par Value
Interstate Logos, Inc. Florida Logos, Inc. Common/ 100 1 20%
No Par Value
Interstate Logos, Inc. Georgia Logos, Inc. Common/ 100 1 100%
No Par Value
Interstate Logos, Inc. Kansas Logos, Inc. Common/ 100 1 100%
No Par Value
Interstate Logos, Inc. Kentucky Logos, Inc. Common/ 100 1 100%
No Par Value
Interstate Logos, Inc. Lamar Air, LLC Membership Interest 10 2 10%
Interstate Logos, Inc. Michigan Logos, Inc. Common/ 100 2 100%
No Par Value
143
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Interstate Logos, Inc. Minnesota Common/ 100 1 100%
Logos, Inc. No Par Value
Interstate Logos, Inc. Mississippi Common/ 1,000 1 100%
Logos, Inc. No Par Value
Interstate Logos, Inc. Missouri Logos, Inc. Common/ 100 2 100%
No Par Value
Interstate Logos, Inc. Nebraska Logos, Inc. Common/ 100 2 100%
$1 Par Value
Interstate Logos, Inc. Nevada Logos, Inc. Common/ 100 1 100%
No Par Value
Interstate Logos, Inc. New Jersey Logos, Inc. Common/ 100 1 100%
No Par Value
Interstate Logos, Inc. Ohio Logos, Inc. Common/ 100 2 100%
No Par Value
Interstate Logos, Inc. Oklahoma Logo Signs, Common/ 100 2 100%
Inc. No Par Value
Interstate Logos, Inc. South Carolina Logos, Common/ 100 1 100%
Inc. No Par Value
Interstate Logos, Inc. Tennessee Common/ 100 1 100%
Logos, Inc. No Par Value
Interstate Logos, Inc. Texas Logos, Common/ 1,000 3 100%
Inc. No Par Value
Interstate Logos, Inc. Utah Logos, Inc Common/ 100 2 100%
No Par Value
Interstate Logos, Inc. Virginia Logos, Inc. Common/ 100 1 100%
No Par Value
Annex 1 to Amended and Restated Pledge Agreement
144
- 3 -
The Lamar Corporation Lamar Advertising of Common/ 1,600 11 100%
Colorado No Par Value
Springs, Inc.
The Lamar Corporation Lamar Advertising of Common/ 1,000 1 100%
Jackson, Inc. $1 Par Value
The Lamar Corporation Lamar Advertising of Common/ 5,130 85 100%
Mobile, Inc. $10 Par Value 650 86
4,550 88
50 90
The Lamar Corporation Lamar Advertising of Common/ 1,000 1 100%
South Georgia, Inc. $1 Par Value
The Lamar Corporation Lamar Advertising Common/ 1,000 1 100%
of South Mississippi, $1 Par Value
Inc.
The Lamar Corporation Lamar Advertising Class A 1,000 25 100%
of Youngstown, Inc. Common/
No Par Value
The Lamar Corporation Lamar Air, Membership Interest 90 3 90%
L.L.C.
The Lamar Corporation Lamar Common/ 100 1 100%
Pensacola No Par Value
Transit, Inc.
The Lamar Corporation Lamar Common/ 1,000 1 100%
Tennessee Limited No Par Value
Partner, Inc.
Annex 1 to Amended and Restated Pledge Agreement
145
- 4 -
The Lamar Corporation Lamar Partnership Interest N/A 2 1%
Tennessee
Limited Partnership
Lamar Tennessee Limited Lamar Partnership Interest N/A 1 99%
Partner, Inc. Tennessee Limited
Partnership
The Lamar Corporation Lamar Partnership Interest N/A 2 1%
Tennessee Limited
Partnership II
Lamar Tennessee Limited Lamar Partnership Interest N/A 1 99%
Partner, Inc. Tennessee Limited
Partnership II
The Lamar Corporation Lamar Texas General Common/ 1,000 1 100%
Partner, Inc. No Par Value
The Lamar Corporation Lamar Texas Limited Partnership Interest N/A 2 99%
Partnership
Lamar Texas General Lamar Texas Limited Partnership Interest N/A 1 1%
Partner, Inc. Partnership
The Lamar Corporation TLC Properties Inc. Common/ 100 1 100%
No Par Value 285 7
The Lamar Corporation TLC Properties II, Inc. Common/ 100 1 100%
$0.01 Par Value
Annex 1 to Amended and Restated Pledge Agreement
146
- 5 -
Lamar Lamar Advertising Common/ 1000 86 100%
Advertising Company of Huntington- No Par Value
Bridgeport, Inc.
The Lamar Corporation Lamar Advertising of Common/ 1000 A-7 100%
Penn, Inc. No Par Value
The Lamar Corporation Lamar Advertising of Common/ 1000 1 100%
Missouri, Inc. No Par Value
The Lamar Lamar Advertising Common/ 1000 1 100%
Corporation of Michigan, Inc. No Par Value
The Lamar Lamar Common/ 1000 1 100%
Corporation Electrical, Inc. $.01 Par
The Lamar Lamar Advertising of Common/ 1000 1 100%
Corporation South Dakota, Inc. $.01 Par
TLC Properties, Inc. TLC Properties, L.L.C. Membership Interest 1000 1 100%
Lamar Advertising of Florida Logos, Inc. Common/ 400 2 80%
Penn. Inc. $.01 Par
Annex 1 to Amended and Restated Pledge Agreement
147
EXHIBIT E
[Form of Joinder Agreement]
JOINDER AGREEMENT
JOINDER AGREEMENT dated as of ____________, 19__ by ____________, a
___________ corporation (the "Additional Subsidiary Guarantor"), in favor of The
Chase Manhattan Bank, as administrative agent for the Lenders party to the
Credit Agreement referred to below (in such capacity, together with its
successors in such capacity, the "Administrative Agent").
Lamar Advertising Company, a Delaware corporation (the "Borrower"),
and certain of its subsidiaries (collectively, the "Existing Subsidiary
Guarantors" and, together with the Borrower, the "Securing Parties") are parties
to an Amended and Restated Credit Agreement dated as of July 16, 1998 (as
modified and supplemented and in effect from time to time, the "Credit
Agreement", providing, subject to the terms and conditions thereof, for
extensions of credit (by means of loans and letters of credit) to be made by the
Lenders named therein (collectively, together with any entity that becomes a
"Lender" party to the Credit Agreement after the date hereof as provided
therein, the "Lenders" and, together with Administrative Agent and any
successors or assigns of any of the foregoing, the "Secured Parties") to the
Borrower in an aggregate principal or face amount not exceeding $400,000,000
(which, in the circumstances contemplated by Section 2.01(c) thereof, may be
increased to $500,000,000). In addition, the Borrower may from time to time be
obligated to one or more of the Lenders under the Credit Agreement in respect of
Hedging Agreements under and as defined in the Credit Agreement (collectively,
the "Hedging Agreements").
In connection with the Credit Agreement, the Borrower, the Existing
Subsidiary Guarantors and the Administrative Agent are parties to an Amended and
Restated Pledge Agreement dated as of July 16, 1998 (the "Pledge Agreement")
pursuant to which the Securing Parties have, inter alia, granted a security
interest in the Collateral (as defined in the Pledge Agreement) as collateral
security for the Secured Obligations (as so defined). Terms defined in the
Pledge Agreement are used herein as defined therein.
To induce the Secured Parties to enter into the Credit Agreement, and
to extend credit thereunder and to extend credit to the Borrower under Hedging
Agreements, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Additional Subsidiary
Guarantor has agreed to become a party to the Credit Agreement and the Pledge
Agreement as a "Subsidiary Guarantor" thereunder, and to pledge and grant a
security interest in the Collateral (as defined in the Pledge Agreement).
148
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Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are used
herein as defined therein.
Section 2. Joinder to Agreements. Effective upon the execution and
delivery hereof, the Additional Subsidiary Guarantor hereby agrees that it shall
become a "Subsidiary Guarantor" under and for all purposes of the Credit
Agreement and the Pledge Agreement with all the rights and obligations of a
Subsidiary Guarantor thereunder. Without limiting the generality of the
foregoing, the Additional Subsidiary Guarantor hereby:
(i) jointly and severally with the other Subsidiary Guarantors party
to the Credit Agreement guarantees to each Secured Party and their
respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of all
Guaranteed Obligations in the same manner and to the same extent as is
provided in Article III of the Credit Agreement;
(ii) pledges and grants the security interests in all right, title and
interest of the Additional Subsidiary Guarantor in all Collateral (as
defined in the Pledge Agreement) now owned or hereafter acquired by the
Additional Subsidiary Guarantor and whether now existing or hereafter
coming into existence provided for by Article III of the Pledge Agreement
as collateral security for the Secured Obligations and agrees that Annex 1
thereof shall be supplemented as provided in Appendix A hereto;
(iii) makes the representations and warranties set forth in Article IV
of the Credit Agreement and in Article II of the Pledge Agreement, to the
extent relating to the Additional Subsidiary Guarantor or to the Pledged
Equity evidenced by the certificates, if any, identified in Appendix A
hereto; and
(iv) submits to the jurisdiction of the courts, and waives jury trial,
as provided in Sections 10.09 and 10.10 of the Credit Agreement.
The Additional Subsidiary Guarantor hereby instructs its counsel to
deliver the opinions referred to in Section 6.11(a)(iii) of the Credit Agreement
to the Secured Parties.
Joinder Agreement
149
- 3 -
IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused
this Joinder Agreement to be duly executed and delivered as of the day and year
first above written.
[ADDITIONAL SUBSIDIARY GUARANTOR]
By:
------------------------------------
Title:
Accepted and agreed:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
--------------------------------------
Title:
Joinder Agreement
150
Appendix A to Joinder Agreement
Supplement to Annex 1:
Appendix A to Joinder Agreement