Exhibit 4(G)
FIFTH AMENDMENT
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT ("Amendment") is entered into as of July 24,
1997, by and among UNITEL VIDEO, INC., a Delaware corporation having its
principal place of business at 555 West 57th Street, New York, New York 10019
("Borrower"), R SQUARED, INC., a California Corporation having its principal
place of business at 3330 Cahuenga Boulevard West, Los Angeles, California 90068
("Corporate Guarantor") and HELLER FINANCIAL, INC., a Delaware corporation
having an office at 500 West Monroe Street, Chicago, Illinois 60661, as agent
("Agent") for Lender (as hereafter defined).
BACKGROUND
Borrower, Corporate Guarantor, Agent and Heller Financial, Inc.
("Lender") are parties to an Amended and Restated Loan and Security Agreement
dated as of December 12, 1995 (as amended, supplemented or otherwise modified
from time to time, the "Loan Agreement") pursuant to which Lender provides
Borrower with certain financial accommodations.
Borrower has requested that Agent cause the issuance of an
irrevocable letter of credit in favor of PNC Bank, National Association, as
trustee, in connection with the issuance by the Allegheny County Industrial
Development Authority of Variable Rate Demand Revenue Bonds, Series 1997 (Unitel
Mobile Video Project) to finance Borrower's costs of constructing up to two
mobile video television production units to be based at Borrower's Allegheny
County office. Agent is willing to do so on the terms and conditions hereafter
set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrower by Lender,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 3 below, the Loan Agreement is hereby
amended as follows:
(a) Section 1.1 of the Loan Agreement is hereby amended by:
(i) adding the following defined terms in their appropriate
alphabetical order:
"Bond Amortizing Availability Amount" means $5,080,547.95 less
$178,571 per quarter commencing on August 5, 1998 and on the fifth
day of each quarter thereafter.
"Bond Documentation" means the Bond Loan Agreement, the Bond Pledge
Agreement, the Bond Trust Indenture, the Reimbursement Agreement,
the Remarketing Agreement and the Purchase Contract.
"Bond Letter of Credit" means Irrevocable Letter of Credit No.
____________, dated July 24, 1997, in the original face amount of
$5,080,547.95 issued by Bank of America National Trust and Savings
Association in favor of the Trustee and any Bond Letter of Credit
caused to be issued by Agent in replacement thereof.
"Bond Letter of Credit Loans" means advances made pursuant to
subsection 2.1(A)(4).
"Bond Letter of Credit Note" means the promissory note of Borrower
in substantially the form of Exhibit 2.1(A)(4).
"Bond Letter of Credit Reimbursement Obligations" means all amounts
due and owing by Borrower to Agent, from time to time, under and in
accordance with the provisions of the Reimbursement Agreement.
"Bond Loan Agreement" means the Loan Agreement dated as of July 1,
1997 by and between Borrower and the Issuer, as amended, modified or
supplemented from time to time with the prior written consent of
Agent.
"Bond Loan Commitment" means (a) as to any Lender, the commitment of
such Lender to make a portion of the Bond Letter of Credit Loans in
an amount equal to such Lender's Pro Rata Share of the aggregate
commitment of all Lenders to make Bond Letter of Credit Loans and
(b) as to all Lenders, the aggregate commitment of all Lenders to
make Bond Letter of Credit Loans.
"Bonds" means the Issuer's Variable Rate Demand Revenue Bonds,
Series 1997 (Unitel Mobile Video Project) in the original principal
amount of Five Million Dollars ($5,000,000).
"Bond Pledge Agreement" means the Pledge Agreement dated as of the
Fifth Amendment Effective Date, as amended, modified and
supplemented from time to time, among Borrower, the Trustee, as
escrow agent, and Agent.
"Bond Trust Indenture" means the Trust Indenture dated as of July 1,
1997 between the Issuer and the Trustee, as amended, modified or
supplemented from time to time with the prior written consent of
Agent.
"Fifth Amendment Effective Date" means July 24, 1997.
"Issuer" means the Allegheny County Industrial Development
Authority.
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"Purchase Contract" means the Private Placement Agreement dated as
of July 1, 1997 among the Issuer, Borrower and RRZ Public Markets,
Inc. as underwriter for the Bonds, as amended, modified or
supplemented from time to time with the prior written consent of
Agent.
"Reimbursement Agreement" means the Reimbursement Agreement dated as
of the Fifth Amendment Effective Date between Borrower and Agent, as
amended, modified and supplemented from time to time.
"Remarketing Agent" means RRZ Public Markets, Inc. and any successor
Remarketing Agent under the Bond Trust Indenture.
"Remarketing Agreement" means the Remarketing Agreement dated as of
July 1, 1997 among the Issuer, the Borrower, the Trustee and the
Remarketing Agent, as the same may be amended, modified or
supplemented from time to time with the prior written consent of
Agent.
"Tender Advance" has the meaning set forth in Section 2(c) of the
Reimbursement Agreement.
"Tender Drawing" means a drawing under the Bond Letter of Credit to
pay the purchase price of Bonds in the amount set forth in Sections
501 through 505 of the Bond Trust Indenture and not remarketed by
the Remarketing Agent on the date such Bonds are to be purchased.
"Trustee" means PNC Bank, National Association, or any successor
trustee under the Bond Trust Indenture.
(ii) amending the following defined terms in their entirety to
provide as follows:
"Loan Documents" means this Agreement, the Notes, the Corporate
Guaranty, the Subordinated Notes, the Reimbursement Agreement, the
Bond Pledge Agreement and all other instruments, documents and
agreements executed by or on behalf of Borrower or any Loan Party
and delivered concurrently herewith or at any time hereafter to or
for the benefit of Agent or any Lender in connection with the Loans
and other transactions contemplated by this Agreement, all as
amended, restated, supplemented or modified from time to time.
"Loan" or "Loans" means an advance or advances under the Term Loan
Commitment, the Revolving Loan Commitment or the Bond Loan
Commitment, as applicable.
"Notes" means the Amended and Restated Revolving Note, the Amended
and Restated Term Notes and the Bond Letter of Credit Note.
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"Obligations" means all obligations, liabilities and indebtedness of
every nature of each Loan Party from time to time owed to Agent or
to any Lender under the Loan Documents including, without
limitation, all Bond Letter of Credit Reimbursement Obligations, the
principal amount of all debts, claims and indebtedness (whether
incurred before or after the Termination Date), accrued and unpaid
interest and all fees, costs and expenses, whether primary,
secondary, direct, contingent, fixed or otherwise, heretofore, now
and/or from time to time hereafter owing, due or payable.
"Total Loan Commitment" means the aggregate commitments of any
Lender with respect to the Revolving Loan Commitment, the Term Loan
Commitment and the Bond Loan Commitment.
(b) A new Section 2.1(A)(4) is hereby added to the Loan Agreement to
provide as follows:
"(A)(4) Bond Letter of Credit Loans. Simultaneously with the
execution of the Fifth Amendment to this Agreement, Borrower and
Agent entered into a Reimbursement Agreement pursuant to which,
among other things, Agent agreed to cause the issuance of the Bond
Letter of Credit and Borrower agreed to reimburse Agent for all Bond
Letter of Credit Reimbursement Obligations. Subject to the terms and
conditions of this Agreement, in reliance upon the representations
and warranties of Borrower herein set forth and for the sole purpose
of enabling Borrower to reimburse Agent for all Bond Letter of
Credit Reimbursement Obligations, each Lender, severally, agrees to
lend to Borrower, on the date each Bond Letter of Credit
Reimbursement Obligation becomes due, its Pro Rata Share of the
lesser of (i) the Bond Letter of Credit Reimbursement Obligation
then due and (ii) the Bond Amortizing Availability Amount as of such
date ("Bond Letter of Credit Loans"). Borrower acknowledges that on
the date each Bond Letter of Credit Reimbursement Obligation becomes
due (i) Agent shall charge Borrower's loan account as a Bond Letter
of Credit Loan an amount equal to such Bond Letter of Credit
Reimbursement Obligation and (ii) Borrower shall be deemed to have
irrevocably requested a Bond Letter of Credit Loan in an amount
equal to such Bond Letter of Credit Reimbursement Obligation. The
outstanding balance of all Bond Letter of Credit Loans together with
accrued interest thereon shall be due and payable on the earlier to
occur of (i) the Termination Date or (ii) acceleration of the
Obligations in accordance with the provisions of subsection 8.3;
provided, however, the outstanding balance of all Bond Letter of
Credit Loans constituting Tender Advances together with accrued
interest thereon shall be due and payable on the earlier to occur of
(i) the remarketing, pursuant to Section 507 of the Bond Trust
Indenture, of the Bonds purchased with the proceeds of the related
Tender Drawing, (ii) the Termination Date or (iii) acceleration of
the Obligations in accordance with the provisions of subsection 8.3.
Borrower shall be permitted to prepay the Bond Letter of Credit
Loans at any time, in whole or in part, subject to the provisions of
subsection 2.3(C). Notwithstanding anything to the contrary
contained in this Agreement,
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no references in this Agreement to "Lender Letters of Credit" shall
include or be deemed to include Bond Letters of Credit."
(c) Subsection 2.1(B) of the Loan Agreement is hereby amended by
deleting the reference to "$11,000,000" and replacing the same with "8,500,000".
(d) A new sentence is hereby added after the first sentence of
subsection 2.1(E) of the Loan Agreement to provide as follows:
"Borrower shall execute and deliver to each Lender a Bond Letter of
Credit Note to evidence such Lender's portion of the Bond Letter of
Credit Loans, such Bond Letter of Credit Note to be in the principal
amount of the respective Bond Loan Commitment of such Lender and
with other appropriate insertions."
(e) Subsection 2.1(F) of the Loan Agreement is hereby amended in its
entirety to provide as follows:
"(F) Evidence of Revolving Loan and Bond Letter of Credit Loan
Obligations. The advances constituting Revolving Loans and Bond
Letter of Credit Loans shall be evidenced by this Agreement, the
Amended and Restated Revolving Note, the Bond Letter of Credit Note
and notations made from time to time by Agent in its books and
records, including computer records. Agent shall record in its books
and records, including computer records, the principal amount of the
Revolving Loans and Bond Letter of Credit Loans owing to each Lender
from time to time. Agent's books and records shall constitute
presumptive evidence, absent manifest error, of the accuracy of the
information contained therein. Failure by Agent to make any such
notation or record shall not affect the obligations of Borrower to
Lenders with respect to the Revolving Loans and the Bond Letter of
Credit Loans."
(f) A new sentence is hereby added to the end of subsection
2.2(A)(i) of the Loan Agreement to provide as follows:
"Bond Letter of Credit Loans shall bear interest from the date such
Loan is made to the date paid in full at a rate per annum equal to
the interest rate set forth in this subsection 2.2(A) applicable to
Term Loan A."
(g) Subsection 2.3(C) of the Loan Agreement is hereby amended by
adding the words "plus the amount of the then outstanding Bond Letter of Credit
Loans" to the end of clause "(1)" thereof.
(h) A new sentence is hereby added to the end of subsection
2.4(B)(1) of the Loan Agreement to provide as follows:
"At any time that the principal balance of the Bond Letter of Credit
Loan exceeds the Bond Amortizing Availability Amount, Borrower
shall, upon demand by
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Agent, immediately repay the Bond Letter of Credit Loan to the
extent necessary to reduce the principal balance to an amount that
is equal to or less than the Bond Amortizing Availability Amount."
(i) A new sentence is hereby added at the end of subsection 2.4(C)
of the Loan Agreement to provide as follows:
"Borrower shall be permitted to prepay the Bond Letter of Credit
Loans at any time, in whole or in part, subject to the provisions of
subsection 2.3(C)."
(j) A new sentence is hereby added at the end of subsection 5.12 of
the Loan Agreement to provide as follows:
"Within five (5) days after the issuance thereof, Borrower shall (a)
deliver to Agent the original certificate of title relating to each
mobile video unit constructed by Borrower utilizing the proceeds of
the Bonds and based at Borrower's Allegheny County office and (b)
take all such other action and execute all such documentation as
Agent shall reasonably request to evidence Agent's perfected first
priority lien in each such mobile video unit."
(k) Subsection 7.1 of the Loan Agreement is hereby amended by:
(i) adding after clause (a)(iii) thereof a new clause (a)(iv) to
provide as follows:
"and (iv) Indebtedness incurred under the Bond Loan Agreement,
the Bond Indenture and the Loan and Security Agreement dated
May 1, 1997 between Borrower and Charter Financial, Inc. which
Indebtedness may be paid only in accordance with the terms of
such agreements as originally executed or modified with the
prior written consent of Agent".
(ii) adding after clause (b)(v) thereof a new clause (b)(vi) to
provide as follows:
"and (vi) Indebtedness incurred under the Bond Loan Agreement
and the Bond Indenture and the Loan and Security Agreement
dated May 1, 1997 between Borrower and Charter Financial, Inc.
which Indebtedness may be paid only in accordance with the
terms of such agreements as originally executed or modified
with the prior written consent of Agent".
(l) A new subsection 8.1(V) is hereby added to provide as follows:
"(V) Cross Default to Bond Documentation. An event of default shall
occur and be continuing under any Bond Documentation which is not
cured within any applicable grace period.
(m) Exhibit 2.1(A)(4) to this Amendment is hereby added to the Loan
Agreement as Exhibit 2.1(A)(4).
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3. Conditions of Effectiveness. This Amendment shall become
effective when and only when Agent shall have received (a) four (4) copies of
this Amendment executed by Borrower and Corporate Guarantor; (b) a fully
executed copy of each of the following documents: (i) the Reimbursement
Agreement, (ii) the Bond Pledge Agreement, (iii) the Bond Trust Indenture, (iv)
the Remarketing Agreement, (iv) the Bond Letter of Credit Note, (v) the Bond
Loan Agreement, (vi) the Purchase Contract and (vii) the Bond Loan Agreement;
(c) all documents set forth in Section 3(b) of the Reimbursement Agreement and
(d) such other certificates, instruments, documents, agreements and opinions of
counsel as may be required by Agent or its counsel, each of which shall be in
form and substance satisfactory to Agent and its counsel.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their respective
terms.
(b) Upon the effectiveness of this Amendment, Borrower hereby
reaffirms that all covenants, representations and warranties made in
the Loan Agreement to the extent the same are not specifically
amended hereby or otherwise notified to Lender in writing, are
correct in all material respects and agrees that all covenants,
representations and warranties shall be deemed to have been remade
as of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) Borrower has no defense, counterclaim or offset with
respect to the Loan Agreement or the Obligations thereunder.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended herein, the Loan Agreement,
and all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of Agent
or Lender, nor constitute a waiver of any provision of the Loan Agreement, or
any other documents, instruments or agreements executed and/or delivered under
or in connection therewith.
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(d) Notwithstanding anything to the contrary in this
Amendment, at such time as the Bond Letter of Credit shall be of no further
force and effect and all Bond Letter of Credit Reimbursement Obligations shall
have been paid in full, the provisions of this Amendment which require the
consent of Agent or any other action by Agent with respect to the Bond
Documentation or the Bonds shall be of no force and effect.
6. Governing Law. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the State
of New York.
7. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed an original
and all of which taken together shall be deemed to constitute one and the same
agreement. Any signature received by facsimile transmission shall be deemed an
original signature hereto.
[SIGNATURES LINES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first written above.
UNITEL VIDEO, INC., as Borrower
By: /s/ Barry Knepper
--------------------------------
Name: Barry Knepper
Title: CEO
R SQUARED, INC., as Corporate Guarantor
By: /s/ Karen Lapidus
--------------------------------
Name: Karen Lapidus
Title: Vice President
HELLER FINANCIAL, INC., as Agent and
Lender
By:
--------------------------------
Name:
Title:
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first written above.
UNITEL VIDEO, INC., as Borrower
By:
--------------------------------
Name:
Title:
R SQUARED, INC., as Corporate Guarantor
By:
--------------------------------
Name:
Title:
HELLER FINANCIAL, INC., as Agent and
Lender
By: /s/ Jerome P. Sepich
--------------------------------
Name: Jerome P. Sepich
Title: Vice President
EXHIBIT 2.1(A)(4)
BOND LETTER OF CREDIT NOTE
$5,080,547.95 New York, New York
July __, 1997
This Bond Letter of Credit Note is executed and delivered under and
pursuant to the terms of that certain Amended and Restated Loan and Security
Agreement dated December 12, 1995 (as amended, supplemented or modified from
time to time, the "Loan Agreement") by and among UNITEL VIDEO, INC., a Delaware
corporation with its principal place of business at 555 West 57th Street, New
York, New York 10019 ("Borrower"), R Squared, Inc., a California corporation
with its principal place of business at 3300 Cahuenga Boulevard West, Los
Angeles, California 90068, Heller Financial, Inc. ("Heller"), each of the
financial institutions named in or which hereafter became a party to the Loan
Agreement (Heller and such financial institutions, collectively "Lenders") and
Heller as agent for Lenders (Heller, in such capacity, "Agent"). Capitalized
terms not otherwise defined herein shall have the meanings given them in the
Loan Agreement.
FOR VALUE RECEIVED, Borrower hereby promises to pay to the order of
Heller at its offices located at 500 West Monroe Street, 10th Floor, Chicago,
Illinois 60661 or at such other place as holder may from time to time designate
to Borrower in writing:
(i) the principal sum of FIVE MILLION EIGHTY THOUSAND FIVE HUNDRED
FORTY-SEVEN and 95/100 DOLLARS $5,080,547.95 or, if different, such amount of
Bond Letter of Credit Loans as may be due and owing under the Loan Agreement,
payable in full on the Termination Date, subject to acceleration upon the
occurrence of an Event of Default under the Loan Agreement or earlier repayment
as permitted or required by the Loan Agreement; and
(ii) interest on the principal amount of this Note from time to time
outstanding at the Interest Rate with respect to Bond Letter of Credit Loans in
accordance with the provisions of the Loan Agreement. Upon the occurrence and
during the continuance of an Event of Default and notice thereof by Agent to
Borrower (except that no notice shall be required upon the occurrence of an
Event of Default under subsection 8.1(G) or 8.1(H) of the Loan Agreement),
interest may at Agent's election be payable at the Default Rate. In no event,
however, shall interest hereunder exceed the maximum interest rate permitted by
law.
This Note is the Bond Letter of Credit Note referred to in the Loan
Agreement and is secured by the Liens granted pursuant to the Loan Agreement and
the Loan Documents, is entitled to the benefits of the Loan Agreement and the
Loan Documents and is subject to all of the agreements, terms and conditions
therein contained.
This Note may be voluntarily prepared, in whole or in part, on the
terms and conditions set forth in the Loan Agreement.
If an Event of Default under Section 8.1 (G) or (H) of the Loan
Agreement shall occur, then this Note shall immediately become due and payable,
without notice, together with reasonable attorneys' fees if the collection
hereof is placed in the hands of an attorney to obtain or enforce payment
hereof. If any other Event of Default shall occur and be continuing under the
Loan Agreement or any of the Loan Documents, which is not cured within any
applicable grace period, then this Note may, as provided in the Loan Agreement,
be declared to be immediately due and payable, with notice to the extent
provided in the Loan Agreement, together with reasonable attorneys' fees, if the
collection hereof is placed in the hands of an attorney to obtain or enforce
payment hereof.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
Borrower expressly waives any presentment, demand, protest, notice
of protest, or notice of any kind except as expressly provided in the Loan
Agreement.
UNITEL VIDEO, INC.
By:______________________________
Its:_____________________________
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ day of July, 1997, before me personally came
__________________ to me known, who being by me duly sworn, did depose and say
that he/she is a _______________ of UNITEL VIDEO, INC., the corporation
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by order of the board of directors of said corporation.
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Notary Public