1
Exhibit 10.5
SERIES A-2 AND SERIES B-1 INCREMENTAL LOAN AGREEMENT
SERIES A-2 AND SERIES B-1 INCREMENTAL LOAN AGREEMENT dated as of June
22, 2000 between XXXXX ADVERTISING COMPANY ("Holdings"), XXXXX MEDIA CORP. (the
"Borrower"), the SUBSIDIARY GUARANTORS party hereto, the SERIES A-2 AND SERIES
B-1 LENDERS party hereto (including each Series A-2 and each Series B-1 Lender,
each as defined below, that becomes a party hereto pursuant to a Lender
Addendum as defined below) and THE CHASE MANHATTAN BANK, as Administrative
Agent.
The Borrower, the Subsidiary Guarantors party thereto, the lenders
party thereto and The Chase Manhattan Bank, as Administrative Agent, are
parties to a Credit Agreement dated as of August 13, 1999 (the "Credit
Agreement") providing for extensions of credit (by means of loans and letters
of credit) in an aggregate principal amount up to but not exceeding
$1,000,000,000 (which, in the circumstances contemplated by Section 2.01(d)
thereof, may be increased to $1,400,000,000).
Section 2.01(d) of the Credit Agreement contemplates that at any time
and from time to time prior to December 31, 2001, the Borrower may request that
the Lenders (as defined therein) offer to enter into commitments to make
Incremental Loans under and as defined in said Section 2.01(d), which
Incremental Loans may be made in one or more separate "series" of term loans
but which in the aggregate may not exceed $400,000,000. Series A-1 Loans in an
aggregate amount of $20,000,000 have been previously established. The Borrower
has now requested that $230,000,000 of Incremental Loans under said Section
2.01(d) be made available to it in two series of term loans (the "Series A-2
Loans" and the "Series B-1 Loans"). The Series A-2 and Series B-1 Lenders (as
defined below) are willing to make such loans on the terms and conditions set
forth below and in accordance with the applicable provisions of the Credit
Agreement and, accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS
Terms defined in the Credit Agreement are used herein as defined
therein. In addition, the following terms have the meanings specified below:
"Lender Addendum" means, with respect to any Series A-2 and
Series B-1 Lender, a Lender Addendum substantially in form of Annex 1
hereto, dated as of the date hereof and executed and delivered by such
Series A-2 and Series B-1 Lender as provided in Section 2.05.
"Series A-2 and Series B-1 Effective Date" means the date on
which the conditions specified in Article IV are satisfied (or waived
by the Required Series A-2 and Series B-1 Lenders).
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"Series A-2 Commitment" means, with respect to each Series
A-2 Lender, the commitment of such Lender to make Series A-2 Loans
hereunder. The amount of each Series A-2 Lender's Series A-2
Commitment is set forth in the Lender Addendum executed and delivered
by such Series A-2 Lender. The aggregate original amount of the Series
A-2 Commitments is $130,000,000.
"Series B-1 Commitment" means, with respect to each Series
B-1 Lender, the commitment of such Lender to make Series B-1 Loans
hereunder. The amount of each Series B-1 Lender's Series B-1
Commitment is set forth in the Lender Addendum executed and delivered
by such Series B-1 Lender. The aggregate original amount of the Series
B-1 Commitments is $100,000,000.
"Series A-2 Lender" means (a) on the date hereof, a Lender
that has executed and delivered a Lender Addendum that sets forth a
Series A-2 Commitment for such Lender and (b) thereafter, the Lenders
from time to time holding Series A-2 Commitments or Series A-2 Loans
after giving effect to any assignments thereof pursuant to Section
10.04 of the Credit Agreement.
"Series B-1 Lender" means (a) on the date hereof, a Lender
that has executed and delivered a Lender Addendum that sets forth a
Series B-1 Commitment for such Lender and (b) thereafter, the Lenders
from time to time holding Series B-1 Commitments or Series B-1 Loans
after giving effect to any assignments thereof pursuant to Section
10.04 of the Credit Agreement.
ARTICLE II
SERIES A-2 AND SERIES B-1 LOANS
Section 2.01. Commitments. Subject to the terms and conditions set
forth herein and in the Credit Agreement, each (i) Series A-2 Lender agrees to
make Series A-2 Loans to the Borrower on the Series A-2 and Series B-1
Effective Date in an aggregate principal amount equal to such Series A-2
Lender's Series A-2 Commitment and (ii) Series B-1 Lender agrees to make Series
B-1 Loans to the Borrower on the Series A-2 and Series B-1 Effective Date in an
aggregate principal amount equal to such Series B-1 Lender's Series B-1
Commitment. Proceeds of the Series A-2 Loans and Series B-1 Loans shall be
available for any use permitted under Section 6.09 of the Credit Agreement.
Section 2.02. Termination of Commitments. Unless previously
terminated, the Series A-2 Commitments and the Series B-1 Commitments shall
terminate after the Borrowing of the Series A-2 Loans and Series B-1 Loans on
the Series A-2 and Series B-1 Effective Date.
Series A-2 and Series B-1 Incremental Loan Agreement
3
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Section 2.03. Repayment of Loans.
(a) Series A-2 Loans. The Borrower hereby unconditionally promises to
pay to the Administrative Agent for the account of the Series A-2 Lenders the
outstanding principal amount of the Series A-2 Loans on each Principal Payment
Date set forth below in the aggregate principal amount set forth opposite such
Principal Payment Date:
Principal Payment Date Principal Amount
---------------------- ----------------
September 30, 2001 $6,500,000
December 31, 2001 $6,500,000
March 31, 2002 $3,250,000
June 30, 2002 $3,250,000
September 30, 2002 $3,250,000
December 31, 2002 $3,250,000
March 31, 2003 $6,500,000
June 30, 2003 $6,500,000
September 30, 2003 $6,500,000
December 31, 2003 $6,500,000
March 31, 2004 $8,125,000
June 30, 2004 $8,125,000
September 30, 2004 $8,125,000
December 31, 2004 $8,125,000
March 31, 2005 $9,100,000
June 30, 2005 $9,100,000
September 30, 2005 $9,100,000
December 31, 2005 $9,100,000
March 1, 2006 $9,100,000
To the extent not previously paid, all Series A-2 Loans shall be due and
payable on the Tranche A Maturity Date.
Series A-2 and Series B-1 Incremental Loan Agreement
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(b) Series B-1 Loans. The Borrower hereby unconditionally promises to
pay to the Administrative Agent for the account of the Series B-1 Lenders the
outstanding principal amount of the Series B-1 Loans on each Principal Payment
Date set forth below in the aggregate principal amount set forth opposite such
Principal Payment Date:
Principal Payment Date Principal Amount
---------------------- ----------------
September 30, 2001 $250,000
December 31, 2001 $250,000
March 31, 2002 $250,000
June 30, 2002 $250,000
September 30, 2002 $250,000
December 31, 2002 $250,000
March 31, 2003 $250,000
June 30, 2003 $250,000
September 30, 2003 $250,000
December 31, 2003 $250,000
March 31, 2004 $250,000
June 30, 2004 $250,000
September 30, 2004 $250,000
December 31, 2004 $250,000
March 31, 2005 $250,000
June 30, 2005 $250,000
September 30, 2005 $250,000
December 31, 2005 $250,000
March 31, 2006 $250,000
June 30, 2006 $250,000
August 1, 2006 $95,000,000
To the extent not previously paid, all Series B-1 Loans shall be due and
payable on the Tranche B Maturity Date.
Section 2.04. Applicable Margin. The Applicable Margin for Series A-2
Loans shall be the respective rates provided for the Tranche A Term Loans in
Section 1.01 of the Credit Agreement. The Applicable Margin for Series B-1
Loans shall be the respective rates provided for the Tranche B Term Loans in
Section 1.01 of the Credit Agreement.
Series A-2 and Series B-1 Incremental Loan Agreement
5
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Section 2.05. Delivery of Lender Addenda. Each Series A-2 Lender and
Series B-1 Lender shall become a party to this Agreement by delivering to each
Agent a Lender Addendum duly executed by such Series A-2 Lender and Series B-1
Lender, the Borrower and the Administrative Agent.
Section 2.06. Status of Agreement. The Series A-2 Commitments of each
Series A-2 Lender and the Series B-1 Commitments of each Series B-1 Lender
constitute Incremental Loan Commitments, the Series A-2 Lenders and Series B-1
Lenders constitute Incremental Loan Lenders and the Series A-2 Loans and the
Series B-1 Loans each constitute a single Series of Incremental Loans under
Section 2.01(d) of the Credit Agreement.
ARTICLE III
REPRESENTATION AND WARRANTIES; NO DEFAULTS
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, after giving effect to the provisions hereof, (i) each of
the representations and warranties set forth in Article IV of the Credit
Agreement is true and correct on and as of the date hereof as if made on and as
of the date hereof (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, such representation or warranty
is true and correct as of such specific date) and as if each reference therein
to the Credit Agreement or Loan Documents included reference to this Agreement
and (ii) no Default or Event of Default has occurred and is continuing.
ARTICLE IV
CONDITIONS
The obligations of the Series A-2 Lenders and Series B-1 Lenders to
make Series A-2 Loans and Series B-1 Loans is subject to the conditions
precedent that each of the following conditions shall have been satisfied (or
waived by the Required Series A-2 Lenders and Required Series B-1 Lenders):
(a) Counterparts of Agreement. The Administrative Agent (or
Special Counsel) shall have received from each party hereto either (i)
a counterpart of this Agreement 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.
Series A-2 and Series B-1 Incremental Loan Agreement
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(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 Series A-2
Lenders and Series B-1 Lenders and dated the Series A-2 and Series B-1
Effective Date) of Kean, Miller, Hawthorne, X'Xxxxxx, XxXxxxx &
Xxxxxx, L.L.P., counsel to the Credit Parties, substantially in the
form of Annex 2, and covering such matters relating to the Credit
Parties or this Agreement as the Administrative Agent 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
Administrative Agent, the Series A-2 Lenders and Series B-1 Lenders
and dated the Series A-2 and Series B-1 Effective Date) of Special
Counsel, substantially in the form of Annex 3 (and the Administrative
Agent hereby requests such counsel to deliver such opinion).
(d) Corporate Matters. The Administrative Agent (or Special
Counsel) shall have received such documents and certificates as either
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 Borrowings hereunder and any
other legal matters relating to the Credit Parties, the Credit
Agreement or this Agreement, all in form and substance reasonably
satisfactory to each Agent.
(e) Notes. The Administrative Agent (or Special Counsel)
shall have received for each Series A-2 Lender and Series B-1 Lender
that shall have requested a promissory note at least one Business Day
prior to the Series A-2 and Series B-1 Effective Date, a duly
completed and executed promissory note for such Series A-2 Lender and
Series B-1 Lender.
(f) Fees and Expenses. The Administrative Agent shall have
received all fees and other amounts due and payable on or prior to the
Series A-2 and Series B-1 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.
(g) Additional Conditions. The Administrative Agent (or
Special Counsel) shall have received a certificate, dated the Series
A-2 and Series B-1 Effective Date and signed by a Financial Officer
confirming that (i) after giving effect to the Borrowing hereunder
(under the assumption that such Borrowing had been consummated on the
first day of the respective periods for which calculations are to be
made under the covenants in Section 7.09 of the Credit Agreement), the
Borrower would have been in compliance with the applicable provisions
of Section 7.09 of the Credit Agreement and (ii) each of the
applicable conditions precedent set forth in Section 5.03 of the
Credit Agreement to the making of Series A-2 Loans and Series B-1
Loans on the Series A-2 and Series B-1 Effective Date shall have been
satisfied.
Series A-2 and Series B-1 Incremental Loan Agreement
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ARTICLE V
GUARANTY AND PLEDGE BY HOLDINGS
By its signature hereto, Holdings confirms that the obligations of the
Borrower under this Agreement and in respect of the Series A-2 Loans and
Series B-1 Loans are entitled to the benefits of the guarantee and pledge set
forth in the Holdings Guaranty and Pledge Agreement and constitute Guaranteed
Obligations and Secured Obligations (in each case, as defined therein).
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Expenses. The Obligors jointly and severally agree to
pay, or reimburse the Administrative Agent, Series A-2 Lenders or Series B-1
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
Series A-2 Loans and Series B-1 Loans provided for herein and the preparation
of this Agreement.
SECTION 6.02. 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 shall
become effective when this Agreement shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof and thereof which, when taken together, bear the signatures
of each of the other parties hereto and thereto, 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 6.03. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 6.04. 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.
Series A-2 and Series B-1 Incremental Loan Agreement
8
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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.
HOLDINGS
XXXXX ADVERTISING COMPANY
By /s/ XXXXX X. XXXXX
----------------------
Title:
BORROWER
XXXXX MEDIA CORP.
By /s/ XXXXX X. XXXXX
----------------------
Title:
SUBSIDIARY GUARANTORS
INTERSTATE LOGOS, INC.
XXXXX ADVERTISING OF COLORADO SPRINGS, INC.
LAMAR TEXAS GENERAL PARTNER, INC.
TLC PROPERTIES, INC.
TLC PROPERTIES II, INC.
LAMAR PENSACOLA TRANSIT, INC.
XXXXX ADVERTISING OF YOUNGSTOWN, INC.
NEBRASKA LOGOS, INC.
MISSOURI LOGOS, INC.
OHIO LOGOS, INC.
UTAH LOGOS, INC.
TEXAS LOGOS, INC.
SOUTH CAROLINA LOGOS, INC.
VIRGINIA LOGOS, INC
MINNESOTA LOGOS, INC.
MICHIGAN LOGOS, INC.
Series A-2 and Series B-1 Incremental Loan Agreement
9
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FLORIDA LOGOS, INC.
KENTUCKY LOGOS, INC.
NEVADA LOGOS, INC.
TENNESSEE LOGOS, INC.
KANSAS LOGOS, INC.
COLORADO LOGOS, INC.
NEW MEXICO LOGOS, INC.
CANADIAN TODS LIMITED
XXXXX ADVERTISING OF MICHIGAN, INC.
LAMAR ELECTRICAL, INC.
XXXXX ADVERTISING OF WEST VIRGINIA, INC.
XXXXX ADVERTISING OF ASHLAND, INC.
AMERICAN SIGNS, INC.
LAMAR OCI NORTH CORPORATION
LAMAR OCI SOUTH CORPORATION
XXXXX XXXXXXXX, INC.
XXXXX ADVERTISING OF KENTUCKY, INC.
XXXXX FLORIDA, INC.
XXXXX ADVERTISING OF IOWA, INC.
LAMAR ADVAN, INC.
XXXXX ADVERTISING OF SOUTH DAKOTA, INC.
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
OKLAHOMA LOGOS, L.L.C.
MISSISSIPPI LOGOS, X.XX.
DELAWARE LOGOS, L.L.C.
NEW JERSEY LOGOS, L.L.C.
GEORGIA LOGOS, L.L.C.
By: Interstate Logos, Inc.
Its: Sole and Managing Member
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
Series A-2 and Series B-1 Incremental Loan Agreement
10
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INTERSTATE LOGOS, L.L.C.
By: Xxxxx Media Corp.,
Its Sole and Managing Member
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
XXXXX ADVERTISING OF MACON, L.L.C.
By: The Xxxxx Company, L.L.C., Its Manager
By: Xxxxx Media Corp., Its Manager
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
THE XXXXX COMPANY, L.L.C.
By: Xxxxx Media Corp.,
Its Sole and Managing Member
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
Series A-2 and Series B-1 Incremental Loan Agreement
11
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XXXXX ADVERTISING OF PENN, LLC
By: The Xxxxx Company, L.L.C., Its Manager
By: Xxxxx Media Corp., Its Manager
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
XXXXX ADVERTISING OF LOUISIANA, L.L.C.
By: The Xxxxx Company, L.L.C., Its Manager
By: Xxxxx Media Corp., Its Manager
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
LAMAR TENNESSEE, L.L.C.
By: The Xxxxx Company, L.L.C., Its Manager
By: Xxxxx Media Corp., Its Manager
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
LAMAR TEXAS LIMITED PARTNERSHIP
By: Lamar Texas General Partner, Inc.
Its General Partner
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
Series A-2 and Series B-1 Incremental Loan Agreement
12
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LAMAR AIR, L.L.C.
By: The Lamar Company, L.L.C., Its Manager
By: Xxxxx Media Corp., Its Manager
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
TLC PROPERTIES, L.L.C.
By: TLC Properties, Inc.
Its Manager
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
XXXXX XX SIGN CORPORATION
XXXXX XXXXXX CORPORATION
LAMAR NEVADA SIGN CORPORATION
XXXXX OUTDOOR CORPORATION
XXXXX XXXXXXX OUTDOOR CORPORATION
XXXXXXX COMPANY, INCORPORATED
XXXXXX DEVELOPMENT CORPORATION
LINDSAY OUTDOOR ADVERTISING INC
XXXXXXX DEVELOPMENT COMPANY
REVOLUTION OUTDOOR ADVERTISING, INC.
SCENIC OUTDOOR MARKETING &
CONSULTING, INC.
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
Series A-2 and Series B-1 Incremental Loan Agreement
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XXXXX XXXX, L.P.
By: Xxxxx XX Sign Corporation,
Its General Partner
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
OUTDOOR PROMOTIONS WEST, LLC
TRANSIT AMERICA LAS VEGAS, L.L.C.
TRIUMPH OUTDOOR LOUISIANA, LLC
TRIUMPH OUTDOOR RHODE ISLAND, LLC
By: Triumph Outdoor Holdings, LLC,
Its Manager
By: Xxxxx Outdoor Corporation, Its Manager
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
TRIUMPH OUTDOOR HOLDINGS, LLC
By: Xxxxx Outdoor Corporation, Its Manager
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
OUTDOOR WEST, INC. OF TENNESSEE
OUTDOOR WEST, INC. OF XXXXXXX
XXXXX ADVERTISING OF TEXAS, INC.
LAMAR ADVANTAGE HOLDING COMPANY
By: /s/ XXXXX X. XXXXX
-----------------------------------------
Xxxxx X. Xxxxx
Vice President-Finance and
Chief Financial Officer
Series A-2 and Series B-1 Incremental Loan Agreement
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LAMAR ADVANTAGE GP COMPANY, L.L.C.
XXXXX ADVANTAGE LP COMPANY, L.L.C.
By: Xxxxx Advertising of Texas, Inc.
Its: Sole and Managing Member
By: /s/ XXXXX X. XXXXX
---------------------------------------
Xxxxx X. Xxxxx
Vice President-Finance and
Chief Financial Officer
XXXXX ADVANTAGE OUTDOOR COMPANY, L.P.
By: Xxxxx Advantage GP Company, L.L.C.
Its: General Partner
By: Xxxxx Advertising of Texas, Inc.
Its: Sole and Managing Member
By: /s/ XXXXX X. XXXXX
---------------------------------------
Xxxxx X. Xxxxx
Vice President-Finance and
Chief Financial Officer
XXXXX T.T.R., L.L.C.
By: Xxxxx Advertising of Youngstown, Inc.
Its: Sole and Managing Member
By: /s/ XXXXX X. XXXXX
---------------------------------------
Xxxxx X. Xxxxx
Vice President-Finance and
Chief Financial Officer
AZTEC GROUP, INC.
SUNSHINE SIGN CORP.
By: /s/ XXXXX X. XXXXX
---------------------------------------
Xxxxx X. Xxxxx
Vice President-Finance and
Chief Financial Officer
Series A-2 and Series B-1 Incremental Loan Agreement
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ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ XXXXXXX ROTTIRO
-------------------------------------
Title:
Series A-2 and Series B-1 Incremental Loan Agreement
16
ANNEX 1
[Form Of Lender Addendum]
LENDER ADDENDUM
Reference is made to the Series A-2 and Series B-1 Incremental Loan
Agreement dated as of June 22, 2000 (the "Series A-2 and Series B-1 Agreement")
between Xxxxx Advertising Company, Xxxxx Media Corp. (the "Borrower"), the
Subsidiary Guarantors party thereto, the Series A-2 and Series B-1 Lenders
named therein (the "Series A-2 and Series B-1 Lenders") and The Chase Manhattan
Bank, as Administrative Agent (the "Administrative Agent"), which Series A-2
and Series B-1 Agreement is being entered into pursuant to Section 2.01(d) of
the Credit Agreement dated as of August 13, 1999 (the "Credit Agreement") among
the Borrower, the Subsidiary Guarantors party thereto, the lenders party
thereto and the Administrative Agent. Terms used but not defined in this Lender
Addendum have the meanings assigned to such terms in the Series A-2 and Series
B-1 Agreement and the Credit Agreement.
By its signature below, and subject to the acceptance hereof by the
Borrower and the Administrative Agent as provided below, the undersigned hereby
becomes a Series A-2 Lender and/or Series B-1 Lender under the Series A-2 and
Series B-1 Agreement, having the Series A-2 Commitment and the Series B-1
Commitment, as applicable, set forth below opposite its name.
This Lender Addendum shall be governed by, and construed in accordance
with, the law of the State of New York.
This Lender Addendum 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.
Lender Addendum
17
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IN WITNESS WHEREOF, the parties hereto have caused this Lender
Addendum to be duly executed and delivered by their proper and duly authorized
officers as of this ___ day of June, 2000.
Amount of Series A-2 ------------------------------------------
Commitment: [Name of Series A-2 and Series B-1 Lender]
$
---------------
Amount of Series B-1
Commitment By:
--------------------------------------
Name:
$ Title:
---------------
Lender Addendum
18
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Accepted and agreed:
THE CHASE MANHATTAN BANK,
As Administrative Agent
By:
--------------------------
Name:
Title:
XXXXX MEDIA CORP.
By:
--------------------------
Name:
Title:
Lender Addendum
19
ANNEX 2
[Form of Opinion of Counsel to Credit Parties]
June 22, 2000
To the Series A-2 Lenders and Series B-1 Lenders
party to the Series A-2 and Series B-1 Loan
Agreement referred to below and The Chase Manhattan
Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to XXXXX ADVERTISING COMPANY ("Holdings"),
XXXXX MEDIA CORP. (herein the "Borrower") and the SUBSIDIARY GUARANTORS, in
connection with the Series A-2 and Series B-1 Incremental Loan Agreement dated
as of June 22, 2000 (the "Series A-2 and Series B-1 Agreement") between Xxxxx
Advertising Company ("Holdings") Xxxxx Media Corp. (the "Borrower"), the
Subsidiary Guarantors party thereto, the Series A-2 Lenders and Series B-1
Lenders party thereto (the "Series A-2 Lenders" and "Series B-1 Lenders",
respectively) and The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent"), which Series A-2 and Series B-1 Agreement is being
entered into pursuant to Section 2.01(d) of the Credit Agreement dated as of
August 13, 1999 (the "Credit Agreement") between the Borrower, the Subsidiary
Guarantors party thereto, the lenders party thereto and the Administrative
Agent. Terms defined in the Series A-2 and Series B-1 Agreement and Credit
Agreement are used herein as defined therein. This opinion is being delivered
pursuant to clause (b) of Article IV of the Series A-2 and Series B-1
Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Series A-2 and Series B-1 Agreement;
(b) the Credit Agreement; and
(c) the Holdings Guaranty and Pledge Agreement.
The agreements, instruments and other documents referred to in the foregoing
lettered clauses 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
Form of Opinion of Counsel to Credit Parties
20
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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 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. Holdings is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. 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 or pursuant to a Joinder Agreement as required by
Section 6.10 of 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.
Form of Opinion of Counsel to Credit Parties
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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 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.
Form of Opinion of Counsel to Credit Parties
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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.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 10.03 of the Credit
Agreement 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 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 last sentence of Section 2.16(d) of the Credit Agreement, (iii)
the first sentence of Section 10.09(b) of the Credit Agreement (and
any similar provisions in any of the other Credit Documents), 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 (and any similar
provisions in any of the other Credit Documents).
(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.
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
Form of Opinion of Counsel to Credit Parties
00
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xxxxx xxxx xxxxx xx xxx Xxxxxx Xxxxxx 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
clause (b) of Article IV of the Series A-2 and Series B-1 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 Series A-2 and Series B-1 Agreement without,
in each instance, our prior written consent.
Very truly yours,
Form of Opinion of Counsel to Credit Parties
24
ANNEX 3
[Form of Opinion of Special Counsel]
[Date]
To the Series A-2 Lenders and Series B-1
Lenders and the Administrative Agent party
to the Series A-2 and Series B-1 Loan
Agreement and Credit Agreement referred to
below
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan Bank
("Chase") in connection with the Series A-2 and Series B-1 Incremental Loan
Agreement dated as of June 22, 2000 (the "Series A-2 and Series B-1 Agreement")
between Xxxxx Advertising Company ("Holdings"), Xxxxx Media Corp. (the
"Borrower"), the Subsidiary Guarantors party thereto, the Series A-2 and Series
B-1 Lenders party thereto (the "Series A-2 Lenders" and "Series B-1 Lenders",
respectively) and The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent"), which Series A-2 and Series B-1 Agreement is being
entered into pursuant to Section 2.01(d) of the Credit Agreement dated as of
August 13, 1999 (the "Credit Agreement") between the Borrower, the Subsidiary
Guarantors party thereto, the lenders party thereto and the Administrative
Agent. Terms defined in the Series A-2 and Series B-1 Agreement and Credit
Agreement are used herein as defined therein. This opinion is being delivered
pursuant to clause (c) of Article IV of the Series A-2 and Series B-1
Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Series A-2 and Series B-1 Agreement;
(b) the Credit Agreement; and
(c) the Holdings Guaranty and Pledge Agreement.
The agreements, instruments and other documents referred to in the foregoing
lettered clauses 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
Form of Opinion of Special Counsel
25
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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.
In rendering the opinions expressed below, we have assumed, with
respect to all of the documents referred to in this opinion letter, that:
(i) such 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 such documents;
(ii) all signatories to such documents have been duly authorized;
(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; and
(iv) the Series A-2 and Series B-1 Agreement has become effective
in accordance with the provisions of Section 6.02 thereof.
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 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 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.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 10.03(b) of the Credit
Agreement 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.
Form of Opinion of Special Counsel
26
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(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 last sentence of Section 2.16(d) of the Credit Agreement, (iii)
the first sentence of Section 10.09(b) 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, (iv)
the waiver of inconvenient forum set forth in Section 10.09(c) with
respect to proceedings in the United States District Court for the
Southern District of New York and (v) 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 Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx 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 Holdings
under the Holdings Guaranty and Pledge Agreement, and the rights and
remedies of the Administrative Agent under Sections 6.05 through 6.09
(inclusive) of the Holdings Guaranty and Pledge Agreement, may be
subject to possible limitations upon the exercise of remedial or
procedural provisions contained in the Holdings Guaranty and 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 in the Holdings Guarantee and Pledge Agreement) inadequate for
the practical realization of the substantive benefits purported to be
provided to the Administrative Agent and such Secured Parities by the
Holdings Guaranty and Pledge Agreement.
(G) We express no opinion as to the existence of, or the
right, title or interest of Holdings in, to or under any of the
Pledged Stock (as defined in the Holdings Guaranty and Pledge
Agreement).
(H) We express no opinion as to the creation, perfection or
priority of any security interest in any Collateral (as defined in the
Holdings Guaranty and Pledge Agreement).
Form of Opinion of Special Counsel
27
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The foregoing opinions are limited to matters involving the Federal
laws of the United States 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 client, 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/WFC
Form of Opinion of Special Counsel
