1
EXHIBIT 10.4
SERIES A-1 INCREMENTAL LOAN AGREEMENT
SERIES A-1 INCREMENTAL LOAN AGREEMENT dated as of May 31, 2000
between XXXXX ADVERTISING COMPANY ("Holdings"), XXXXX MEDIA CORP. (the
"Borrower"), the SUBSIDIARY GUARANTORS party hereto, the SERIES A-1 LENDERS
party hereto 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. The Borrower has now
requested that $20,000,000 of Incremental Loans under said Section 2.01(d) be
made available to it in a single series of term loans (the "Series A-1 Loans").
The Series A-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:
"Series A-1 Commitment" means, with respect to each Series A-1
Lender, the commitment of such Lender to make Series A-1 Loans
hereunder. The amount of each Series A-1 Lender's Series A-1 Commitment
is (i) set forth opposite such Series A-1 Lender's signature hereto or
(ii) evidenced by an assignment of such Series A-1 Commitment pursuant
to Section 10.04 of the Credit Agreement. The aggregate original amount
of the Series A-1 Commitments is $20,000,000.
"Series A-1 Effective Date" means the date on which the
conditions specified in Article IV are satisfied (or waived by the
Required Series A-1 Lenders).
Series A-1 Incremental Loan Agreement
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"Series A-1 Lender" means (a) on the date hereof, a Lender
that has executed and delivered this Agreement and (b) thereafter, the
Lenders from time to time holding Series A-1 Commitments or Series A-1
Loans after giving effect to any assignments thereof pursuant to
Section 10.04 of the Credit Agreement.
ARTICLE II
SERIES A-1 LOANS
Section 2.01. Commitments. Subject to the terms and conditions
set forth herein and in the Credit Agreement, each Series A-1 Lender agrees to
make Series A-1 Loans to the Borrower on the Series A-1 Effective Date in an
aggregate principal amount equal to such Series A-1 Lender's Series A-1
Commitment. Proceeds of Series A-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-1 Commitments shall terminate after the borrowing of
the Series A-1 Loans on the Series A-1 Effective Date.
Section 2.03. Repayment of Loans. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the Series A-1 Lenders the outstanding principal amount of the Series A-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 $1,000,000
December 31, 2001 $1,000,000
March 31, 2002 $ 500,000
June 30, 2002 $ 500,000
September 30, 2002 $ 500,000
December 31, 2002 $ 500,000
March 31, 2003 $1,000,000
June 30, 2003 $1,000,000
September 30, 2003 $1,000,000
December 31, 2003 $1,000,000
March 31, 2004 $1,250,000
June 30, 2004 $1,250,000
September 30, 2004 $1,250,000
December 31, 2004 $1,250,000
March 31, 2005 $1,400,000
June 30, 2005 $1,400,000
September 30, 2005 $1,400,000
December 31, 2005 $1,400,000
March 1, 2006 $1,400,000
Series A-1 Incremental Loan Agreement
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To the extent not previously paid, all Series A-1 Loans shall be due and payable
on the Tranche A Maturity Date.
Section 2.04. Applicable Margin. The Applicable Margin for
Series A-1 Loans shall be the respective rates provided for the Tranche A Term
Loans in Section 1.01 of the Credit Agreement.
Section 2.05. Status of Agreement. The Series A-1 Commitments
of each Series A-1 Lender constitute Incremental Loan Commitments, the Series
A-1 Lenders constitute Incremental Loan Lenders and the Series A-1 Loans
constitutes 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-1 Lenders to make the Series
A-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-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
Series A-1 Incremental Loan 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 Series A-1
Lenders and dated the Series A-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 1, 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 and the Series A-1 Lenders and dated the Series
A-1 Effective Date) of Special Counsel, substantially in the form of
Annex 2 (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-1 Lender that shall have requested a
promissory note at least one Business Day prior to the Series A-1
Effective Date, a duly completed and executed promissory note for such
Series A-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-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-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-1 Loans on the Series A-1 Effective Date shall have
been satisfied.
Series A-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-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 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 Incremental 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-1 Incremental Loan Agreement
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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.
FLORIDA LOGOS, INC.
KENTUCKY LOGOS, INC.
Series A-1 Incremental Loan Agreement
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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
By: /s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
OKLAHOMA LOGOS, L.L.C.
MISSISSIPPI LOGOS, L.L.C.
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-1 Incremental Loan Agreement
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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: Xxxxx Advertising Company
Its: Sole and Managing Member
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
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
Series A-1 Incremental Loan Agreement
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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: 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
MISSOURI LOGOS, A PARTNERSHIP
By: Missouri Logos, Inc.,
Its General Partner
By: /s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
Series A-1 Incremental Loan Agreement
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LAMAR AIR, 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
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-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, L.L.C.
TRANSIT AMERICA LAS VEGAS, L.L.C.
TRIUMPH OUTDOOR LOUISIANA, L.L.C.
TRIUMPH OUTDOOR RHODE ISLAND, L.L.C.
By: Triumph Outdoor Holdings, L.L.C.,
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, L.L.C.
By: Xxxxx Outdoor Corporation, Its
Manager
By: /s/ XXXXX X. XXXXX
------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ XXXXXXX XXXXXXX
----------------------
Series A-1 Incremental Loan Agreement
12
SERIES A-1 LENDERS
$20,000,000 THE CHASE MANHATTAN BANK
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Title:
Series A-1 Incremental Loan Agreement
13
ANNEX 1
[Form of Opinion of Counsel to Credit Parties]
May [__], 2000
To the Lenders party to the
Series A-1 Incremental 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-1 Incremental Loan Agreement dated
as of May __, 2000 (the "Series A-1 Agreement") between Xxxxx Advertising
Company ("Holdings") Xxxxx Media Corp. (the "Borrower"), the Subsidiary
Guarantors party thereto, the Series A-1 Lenders party thereto (the "Series A-1
Lenders") and The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent"), which Series A-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-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-1 Agreement.
In rendering the opinions expressed below, we have examined
the following agreements, instruments and other documents:
(a) the Series A-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 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
Form of Opinion of Counsel to Credit Parties
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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.
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.
Form of Opinion of Counsel to Credit Parties
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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.
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
Form of Opinion of Counsel to Credit Parties
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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 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.
Form of Opinion of Counsel to Credit Parties
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At the request of our clients, this opinion letter is,
pursuant to clause (b) of Article IV of the Series A-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-1 Agreement without, in each instance,
our prior written consent.
Very truly yours,
Form of Opinion of Counsel to Credit Parties
18
ANNEX 2
[Form of Opinion of Special Counsel]
[Date]
To the Series A-1 Lenders
and the Administrative Agent party
to the Series A-1 Incremental 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-1 Incremental Loan
Agreement dated as of May __, 2000 (the "Series A-1 Agreement") between Xxxxx
Advertising Company ("Holdings"), Xxxxx Media Corp. (the "Borrower"), the
Subsidiary Guarantors party thereto, the Series A-1 Lenders party thereto (the
"Series A-1 Lenders") and The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent"), which Series A-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-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-1 Agreement.
In rendering the opinions expressed below, we have examined
the following agreements, instruments and other documents:
(a) the Series A-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 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.
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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-1 Agreement has become effective in accordance
with the provisions of Section 5.02 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.
(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.
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(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).
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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
