EXHIBIT 10.16
EXECUTION COPY
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SERIES A INCREMENTAL LOAN AGREEMENT
dated as of
February 8, 2006
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QMC MEDIA II, INC.
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JPMORGAN SECURITIES INC.
as Sole Lead Arranger and Sole Bookrunner
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JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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SERIES A INCREMENTAL LOAN AGREEMENT
SERIES A INCREMENTAL LOAN AGREEMENT dated as of February 8, 2006
between QMC MEDIA II, INC. (the "Subsidiary Borrower"), Xxxxx Media Corp. (the
"Company"), the Subsidiary Guarantors party hereto (the "Subsidiary Guarantors"
and together with the Company, the "Guarantors"), the SERIES A INCREMENTAL
LENDERS party hereto and JPMorgan Chase Bank, N.A., as Administrative Agent for
the lenders (in such capacity, together with its successors in such capacity,
the "Administrative Agent").
The Company, the Subsidiary Guarantors party thereto, the lenders
party thereto and JPMorgan Chase Bank, N.A., as the Administrative Agent, are
parties to a Credit Agreement dated as of September 30, 2005 (as heretofore
amended, the "Credit Agreement").
Concurrently with the execution and delivery hereof and pursuant to
Section 5.02(b) of the Credit Agreement, the Company is designating QMC Media
II, Inc., a Wholly Owned Subsidiary (as defined in the Credit Agreement) of the
Company organized under the laws of Puerto Rico, as the "Subsidiary Borrower"
under the Credit Agreement. Section 2.01(c) of the Credit Agreement contemplates
that the Subsidiary Borrower may request that one or more persons (which may
include the Lenders under the Credit Agreement) offer to enter into commitments
to make "Incremental Loans" under and as defined in said Section 2.01(c),
subject to the conditions specified in said Section 2.01(c). The Subsidiary
Borrower accordingly has requested that $37,000,000 in aggregate principal
amount of Incremental Loans under said Section 2.01(c) be made available to it
in a single series of term loans to be designated the "Series A Incremental
Loans". The Series A Incremental 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:
"Acquisition" means the acquisition by the Subsidiary Borrower of
all of the equity interests of QMC Media and QMC Real Estate pursuant to
the Acquisition Agreement.
Series A Incremental Loan Agreement
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"Acquisition Agreement" means the Agreement and Plan of Merger dated
January 24, 2006 by and among the Subsidiary Borrower, QMC Media II Merger
Sub, Inc., QMC Media, QMC Real Estate and the Principal Shareholders (as
defined therein).
"QMC Media" means QMC Media, Inc., a corporation organized under the
laws of Puerto Rico.
"QMC Real Estate" means QMC Real Estate Corp., a corporation
organized under the laws of Puerto Rico.
"QMC Transit" means QMC Transit, Inc., a corporation organized under
the laws of Puerto Rico.
"Required Series A Incremental Lenders" means Series A Incremental
Lenders having Series A Incremental Loans and unused Series A Incremental
Commitments representing at least a majority of the sum of the total
Series A Incremental Loans and unused Series A Incremental Commitments at
such time.
"Series A Incremental Commitment" means, with respect to each Series
A Incremental Lender, the commitment of such Lender to make Series A
Incremental Loans hereunder. The amount of each Series A Incremental
Lender's Series A Incremental Commitment is set forth on Schedule I
hereto. The aggregate original amount of the Series A Incremental
Commitments is $37,000,000.
"Series A Incremental Lender" means (a) on the date hereof, the
Persons listed on Schedule I hereto under the caption "Series A
Incremental Lenders" and (b) thereafter, any other Person from time to
time holding Series A Incremental Commitments or Series A Incremental
Loans after giving effect to any assignments thereof pursuant to Section
10.04 of the Credit Agreement.
"Series A Incremental Loan Effective Date" means the date on which
the conditions specified in Article IV are satisfied (or waived by the
Required Series A Incremental Lenders).
"Series A Incremental Loans" means the Loans made to the Subsidiary
Borrower pursuant to this Agreement which shall constitute a single Series
of Incremental Loans under Section 2.01(c) of the Credit Agreement.
Series A Incremental Loan Agreement
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ARTICLE II
SERIES A INCREMENTAL LOANS
Section 2.01. Series A Incremental Commitments. Subject to the terms
and conditions set forth herein and in the Credit Agreement, each Series A
Incremental Lender agrees to make Series A Incremental Loans to the Subsidiary
Borrower, in an aggregate principal amount equal to such Series A Incremental
Lender's Series A Incremental Commitment. Proceeds of Series A Incremental Loans
shall be used to finance a portion of the purchase price of the Acquisition.
Section 2.02. Termination of Series A Incremental Commitments.
Unless previously terminated, the Series A Incremental Commitments shall
terminate after the Borrowing of the Series A Incremental Loans on the Series A
Incremental Loan Effective Date.
Section 2.03. Repayment of Series A Incremental Loans. The
Subsidiary Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of the Series A Incremental Lenders the outstanding
principal amount of the Series A Incremental 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
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December 31, 2007 $ 462,500
March 31, 2008 $ 462,500
June 30, 2008 $ 462,500
September 30, 2008 $ 462,500
December 31, 2008 $ 462,500
March 31, 2009 $ 462,500
June 30, 2009 $ 462,500
September 30, 2009 $ 462,500
December 31, 2009 $ 1,387,500
March 31, 2010 $ 1,387,500
June 30, 2010 $ 1,387,500
September 30, 2010 $ 1,387,500
December 31, 2010 $ 1,387,500
Series A Incremental Loan Agreement
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March 31, 2011 $ 1,387,500
June 30, 2011 $ 1,387,500
September 30, 2011 $ 1,387,500
December 31, 2011 $ 5,550,000
March 31, 2012 $ 5,550,000
June 30, 2012 $ 5,550,000
September 30, 2012 $ 5,550,000
To the extent not previously paid, all Series A Incremental Loans shall be due
and payable on the Term Loan Maturity Date.
Notwithstanding the foregoing, if on any Test Date, the maturity
date for any then-outstanding Senior Subordinated Notes, New Senior Subordinated
Notes or New Senior Notes, or of any other convertible notes or notes offered
and sold publicly or under Rule 144A shall fall within six months after the Test
Date then the Series A Incremental Loans shall be paid in full on the date that
is three months after the Test Date, provided that the foregoing shall not apply
if the Required Series A Incremental Lenders shall elect otherwise at any time
prior to the Test Date.
Section 2.04. Applicable Rate. The "Applicable Rate" means, in the
case of any Type of Series A Incremental Loans, the respective rates indicated
below for Series A Incremental Loans of such Type based upon the Total Debt
Ratio as at the last day of the fiscal quarter most recently ended as to which
the Company has delivered financial statements pursuant to Section 6.01 of the
Credit Agreement:
RANGE
OF BASE RATE SERIES A INCREMENTAL EURODOLLAR SERIES A INCREMENTAL
TOTAL DEBT RATIO LOANS LOANS
------------------------------------ ------------------------------ -------------------------------
Greater than or equal to 5.00 to 1 0.250% 1.250%
Less than 5.00 to 1 and greater than
or equal to 3.00 to 1 0.000% 1.000%
Less than 3.00 to 1 and greater than
or equal to 2.50 to 1 0.000% 0.875%
Less than 2.50 0.000% 0.750%
Series A Incremental Loan Agreement
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Each change in the "Applicable Rate" based upon any change in the
Total Debt Ratio shall become effective for purposes of the accrual of interest
(including in respect of all then-outstanding Series A Incremental Loans)
hereunder on the date three Business Days after the delivery to the
Administrative Agent of the financial statements of the Company for the most
recently ended fiscal quarter pursuant to Section 6.01 of the Credit Agreement
(provided, that any change in the Applicable Rate occurring on the date six
months after the Effective Date shall become effective on such date and shall be
based upon the financial statements of the Company for the most recently ended
fiscal quarter pursuant to Section 6.01 of the Credit Agreement), and shall
remain effective for such purpose until three Business Days after the next
delivery of such financial statements to the Administrative Agent hereunder.
Notwithstanding the foregoing, (i) the Applicable Rate for the
Series A Incremental Loans until the date six months after the Effective Date,
shall be the rates set forth above for a Total Debt Ratio of less than 5.00 to 1
and greater than or equal to 3.00 to 1 and (ii) in the event the Company
consummates any Acquisition or Disposition for aggregate consideration of
$75,000,000 or more, the Company shall forthwith deliver to the Administrative
Agent a certificate of a Financial Officer, in form and detail satisfactory to
the Administrative Agent, setting forth a redetermination of the Total Debt
Ratio reflecting such Acquisition or Disposition, and on the date three Business
Days after the delivery of such certificate, the Applicable Rate shall be
adjusted to give effect to such redetermination of the Total Debt Ratio.
Anything in this Agreement to the contrary notwithstanding, the
Applicable Rate shall be the highest rates provided for above if the certificate
of a Financial Officer shall not be delivered by the times provided in Section
6.01 of the Credit Agreement or within three Business Days after the occurrence
of any Acquisition or Disposition described above (but only, in the case of this
paragraph, with respect to periods prior to the delivery of such certificate).
Section 2.05. Status of Agreement. Series A Incremental Commitments
of each Series A Incremental Lender constitute Incremental Loan Commitments and
each Series A Incremental Lender constitutes an Incremental Loan Lender, in each
case under and for all purposes of the Credit Agreement. The Series A
Incremental Loans constitute a single "Series" of Incremental Loans under
Section 2.01(c) of the Credit Agreement.
ARTICLE III
REPRESENTATION AND WARRANTIES; NO DEFAULTS
Each Credit Party 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 the Credit Agreement and the other Loan Documents is true
and correct on and as of the date hereof as if made on and as of the date hereof
Series A Incremental Loan Agreement
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(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 has occurred and is continuing. The Company represents and warrants to
the Lenders and the Administrative Agent that the Acquisition is permitted under
Section 7.04(e) of the Credit Agreement.
ARTICLE IV
CONDITIONS
The obligation of the Series A Incremental Lenders to make the
Series A Incremental Loans is subject to the conditions precedent that each of
the following conditions shall have been satisfied (or waived by the Required
Series A Incremental Lenders) on or prior to March 15, 2006:
(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.
(b) Opinions of Counsel to Subsidiary Borrower and the Credit
Parties. The Administrative Agent (or Special Counsel) shall have received
a favorable written opinion (addressed to the Administrative Agent and the
Series A Incremental Lenders and dated the Series A Incremental Loan
Effective Date) of (i) Adsuar Xxxxx Xxxxx & Xxxxxx, P.S.C., special Puerto
Rico counsel to the Subsidiary Borrower, substantially in the form of
Annex 1, and (ii) Kean, Miller, Hawthorne, X'Xxxxxx, XxXxxxx & Xxxxxx,
L.L.P., counsel to the Credit Parties, substantially in the form of Annex
2; and the Subsidiary Borrower and each of the Credit Parties hereby
requests such counsel to deliver such opinions.
(c) Opinion of Special Counsel. The Administrative Agent shall have
received a favorable written legal opinion (addressed to the
Administrative Agent and the Series A Incremental Lenders and dated the
Series A Incremental Loan Effective Date) of Special Counsel,
substantially in the form of Annex 3 (and the Administrative Agent hereby
requests Special Counsel to deliver such opinion).
(d) Corporate Matters. The Administrative Agent (or Special Counsel)
shall have received such documents and certificates as the Administrative
Agent or Special Counsel may reasonably request relating to the
organization, existence and good standing
Series A Incremental Loan Agreement
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of the Subsidiary Borrower, the authorization of the Borrowings hereunder
and any other legal matters relating to the Subsidiary Borrower or this
Agreement, all in form and substance reasonably satisfactory to the
Administrative Agent.
(e) Notes. The Administrative Agent (or Special Counsel) shall have
received for each Series A Incremental Lender that shall have requested a
promissory note at least one Business Day prior to the Series A
Incremental Loan Effective Date, a duly completed and executed promissory
note for such Lender.
(f) Fees and Expenses. JPMorgan Securities Inc. shall have received
all fees and other amounts due and payable on or prior to the Series A
Incremental Loan Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Company hereunder.
(g) Subsidiary Borrower Designation Letter. The Administrative Agent
(or Special Counsel) shall have received from the Company and the
Subsidiary Borrower a duly executed copy of the Subsidiary Borrower
Designation Letter dated the date hereof.
(h) Compliance with Financial Covenants. The Administrative Agent
(or Special Counsel) shall have received from the Financial Officer of the
Company, evidence satisfactory to the Administrative Agent that after
giving effect to the Series A Incremental Loans and the other transactions
that are to occur on the Series A Incremental Loan Effective Date, the
Company is in compliance with the applicable provisions of Section 7.09 of
the Credit Agreement.
(i) Consummation of Acquisition. Prior to or simultaneously with the
Series A Incremental Loan Effective Date, the Acquisition shall have been
consummated in all material respects in accordance with the Acquisition
Agreement.
(j) Additional Conditions. Each of the conditions precedent set
forth in Sections 5.02(b) and 5.03 of the Credit Agreement to the making
of Series A Incremental Loans on the Series A Incremental Loan Effective
Date shall have been satisfied, and the Administrative Agent (or Special
Counsel) shall have received a certificate to such effect, dated the
Series A Incremental Loan Effective Date and signed by the President, Vice
President or a Financial Officer of the Company.
ARTICLE V
NON-GUARANTOR RESTRICTED FOREIGN SUBSIDIARY
Series A Incremental Loan Agreement
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The Company hereby designates each of the Subsidiary Borrower, on
the date hereof, and QMC Transit, on the Series A Incremental Loan Effective
Date, as a Non-Guarantor Restricted Foreign Subsidiary under the Credit
Agreement. In that connection, the Company hereby represents and warrants as of
the date hereof and as of the Series A Incremental Loan Effective Date that (i)
the aggregate EBITDA attributable to all Non-Guarantor Restricted Foreign
Subsidiaries (taking into account the Subsidiary Borrower) represents in the
aggregate no more than 5% of the aggregate EBITDA of the Company and its
Restricted Subsidiaries, (ii) the free cash flow of such Subsidiaries has been
distributed, or is available for distribution, to the Company at its election at
any time and (iii) neither the Subsidiary Borrower nor QMC Transit is a
guarantor in respect of any Senior Subordinated Notes, New Senior Subordinated
Notes or New Senior Notes (or in respect of any Refunding Indebtedness).
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Expenses. The Credit Parties jointly and severally
agree to pay, or reimburse JPMorgan Securities Inc. for paying, all reasonable
out-of-pocket expenses incurred by JPMorgan Securities Inc. and its Affiliates,
including the reasonable fees, charges and disbursements of Special Counsel, in
connection with the syndication of the Series A 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 which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 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.
SECTION 6.05. USA Patriot Act. Each Series A Incremental Lender
hereby notifies the Company that pursuant to the requirements of the USA PATRIOT
Act (Title III of
Series A Incremental Loan Agreement
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Pub. L. 107-56 (signed into law October 26, 2001)), such Series A Incremental
Lender may be required to obtain, verify and record information that identifies
the Borrowers, which information includes the name and address of the Borrowers
and other information that will allow such Series A Incremental Lender to
identify the Borrowers in accordance with said Act.
Series A 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.
QMC MEDIA II, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Vice-President
and Treasurer
XXXXX MEDIA CORP.
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
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SUBSIDIARY GUARANTORS
INTERSTATE LOGOS, L.L.C.
THE XXXXX COMPANY, L.L.C.
LAMAR CENTRAL OUTDOOR, LLC
By: Xxxxx Media Corp.,
Their Managing Member
By: /s/ Xxxxx Xxxxx
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Title: Executive Vice-President/
Chief Financial Officer
XXXXX ADVERTISING SOUTHWEST, INC.
LAMAR OKLAHOMA HOLDING COMPANY, INC.
LAMAR DOA TENNESSEE HOLDINGS, INC.
XXXXX XXXX CORPORATION
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
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INTERSTATE LOGOS, L.L.C. ENTITIES:
MISSOURI LOGOS, LLC
KENTUCKY LOGOS, LLC
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.
VIRGINIA LOGOS, LLC
MAINE LOGOS, L.L.C.
WASHINGTON LOGOS, L.L.C.
By: Interstate Logos, L.L.C.
Their Managing Member
By: Xxxxx Media Corp.
Its: Managing Member
By: /s/ Xxxxx Xxxxx
-----------------------
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
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INTERSTATE LOGOS, L.L.C. ENTITIES CONTINUED:
NEBRASKA LOGOS, INC.
OHIO LOGOS, INC.
UTAH LOGOS, INC.
SOUTH CAROLINA LOGOS, INC.
MINNESOTA LOGOS, INC.
MICHIGAN LOGOS, INC.
FLORIDA LOGOS, INC.
NEVADA LOGOS, INC.
TENNESSEE LOGOS, INC.
KANSAS LOGOS, INC.
COLORADO LOGOS, INC.
NEW MEXICO LOGOS, INC.
By: /s/ Xxxxx Xxxxx
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Title: Executive Vice-President/
Chief Financial Officer
TEXAS LOGOS, L.P.
By: Oklahoma Logos, L.L.C.
Its: General Partner
By: Interstate Logos, L.L.C.
Its: Managing Member
By: Xxxxx Media Corp.
Its: Managing Member
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
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THE XXXXX COMPANY, L.L.C. ENTITIES:
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.
XXXXX ADVERTISING OF MICHIGAN, INC.
LAMAR ELECTRICAL, INC.
AMERICAN SIGNS, INC.
LAMAR OCI NORTH CORPORATION
LAMAR OCI SOUTH CORPORATION
XXXXX ADVERTISING OF KENTUCKY, INC.
LAMAR FLORIDA, INC.
LAMAR ADVAN, INC.
XXXXX ADVERTISING OF SOUTH DAKOTA, INC.
LAMAR OHIO OUTDOOR HOLDING CORP.
OUTDOOR MARKETING SYSTEMS, INC.
By: /s/ Xxxxx Xxxxx
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Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
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THE XXXXX COMPANY, L.L.C. ENTITIES CONTINUED:
XXXXX ADVERTISING OF PENN, LLC
XXXXX ADVERTISING OF LOUISIANA, L.L.C.
LAMAR TENNESSEE, L.L.C.
LC BILLBOARD, L.L.C.
LAMAR AIR, L.L.C.
ADVANTAGE ADVERTISING, LLC
By: The Xxxxx Company, L.L.C.
Their Managing Member
By: Xxxxx Media Corp.
Its: Managing Member
By: /s/ Xxxxx Xxxxx
---------------------------
Title: Executive Vice-President/
Chief Financial Officer
LAMAR TEXAS LIMITED PARTNERSHIP
By: Lamar Texas General Partner, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxx
-----------------------------
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
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THE XXXXX COMPANY, L.L.C. ENTITIES CONTINUED:
TLC PROPERTIES, L.L.C.
TLC FARMS, L.L.C.
By: TLC Properties, Inc.
Their Managing Member
By: /s/ Xxxxx Xxxxx
-----------------------------
Title: Executive Vice-President/
Chief Financial Officer
LAMAR T.T.R., L.L.C.
By: Xxxxx Advertising of Youngstown, Inc.
Its: Managing Member
By: /s/ Xxxxx Xxxxx
-------------------------------
Title: Executive Vice-President/
Chief Financial Officer
OUTDOOR MARKETING SYSTEMS, L.L.C.
By: Outdoor Marketing Systems, Inc.
Its: Managing Member
By: /s/ Xxxxx Xxxxx
-------------------------------
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
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XXXXX XXXXXXX XXXXXXX, LLC ENTITIES:
LAMAR ADVANTAGE HOLDING COMPANY
PREMERE OUTDOOR, INC.
HAM DEVELOPMENT CORPORATION
10 OUTDOOR ADVERTISING, INC.
LAMAR CALIFORNIA ACQUISITION
CORPORATION
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Executive Vice-President/
Chief Financial Officer
OUTDOOR PROMOTIONS WEST, LLC
TRIUMPH OUTDOOR RHODE ISLAND, LLC
By: Triumph Outdoor Holdings, LLC
Their Managing Member
By: Xxxxx Central Outdoor, LLC
Its: Managing Member
By: Xxxxx Media Corp.
Its: Managing Member
By: /s/ Xxxxx Xxxxx
---------------------------------
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
-00-
XXXXX XXXXXXX XXXXXXX, LLC ENTITIES CONTINUED:
TRIUMPH OUTDOOR HOLDINGS, LLC LAMAR
ADVANTAGE GP COMPANY, LLC XXXXX
ADVANTAGE LP COMPANY, LLC XXXXXXX AD
AGENCY, L.L.C.
By: Xxxxx Central Outdoor, LLC
Their Managing Member
By: Xxxxx Media Corp.
Its: Managing Member
By: /s/ Xxxxx Xxxxx
---------------------------------
Title: Executive Vice-President/
Chief Financial Officer
XXXXX ADVANTAGE OUTDOOR
COMPANY, L.P.
By: Xxxxx Advantage GP Company, LLC
Its: General Partner
By: Xxxxx Central Outdoor, LLC
Its: Managing Member
By: Xxxxx Media Corp.
Its: Managing Member
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
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LAMAR OKLAHOMA HOLDING COMPANY, INC. ENTITIES:
LAMAR BENCHES, INC.
LAMAR I-40 WEST, INC.
XXXXX ADVERTISING OF OKLAHOMA, INC.
By: /s/ Xxxxx Xxxxx
---------------------------
Title: Executive Vice-President/
Chief Financial Officer
LAMAR DOA TENNESSEE HOLDINGS, INC. ENTITIES:
LAMAR DOA TENNESSEE, INC.
By: /s/ Xxxxx Xxxxx
------------------------------
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
-20-
XXXXX XXXX CORPORATION ENTITIES:
SELECT MEDIA, INC.
O.B. WALLS, INC.
By: /s/ Xxxxx Xxxxx
-----------------------------
Title: Executive Vice-President/
Chief Financial Officer
XXXX BILLBOARD, LLC
By: Xxxxx Xxxx Corporation
Its: Managing Member
By: /s/ Xxxxx Xxxxx
------------------------------
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
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ADMINISTRATIVE AGENT
JPMORGAN CHASE BANK, N.A.
as Administrative Agent and as a
Series A Incremental Lender
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
Series A Incremental Loan Agreement
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SERIES A INCREMENTAL LENDERS
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Managing Director
SunTrust Bank, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BNP PARIBAS
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
CALYON NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Series A Incremental Loan Agreement
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By its signature below, the undersigned hereby consents to the
foregoing Series A Incremental Loan Agreement and confirms that the Series A
Incremental Loans shall constitute "Guaranteed Obligations" under and as defined
in the Holdings Guaranty and Pledge Agreement and shall be entitled to the
benefits of the Guarantee and security provided under the Holdings Guaranty and
Pledge Agreement.
XXXXX ADVERTISING COMPANY
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice-President/
Chief Financial Officer
Series A Incremental Loan Agreement
SCHEDULE I
Series A Incremental Commitments
Name of Series A Incremental Lender Series A Incremental Commitments
----------------------------------- --------------------------------
JPMorgan Chase Bank, N.A. $ 7,400,000
Wachovia Bank, National Association $ 7,400,000
SunTrust Bank, Inc. $ 7,400,000
BNP Paribas $ 7,400,000
Calyon New York Branch $ 7,400,000
Schedule I
ANNEX 1
[Form of Opinion of Special Puerto Rican Counsel to the Subsidiary Borrower]
[______], 2006
To the Series A Incremental Lenders
and the Administrative Agent
party to the Subsidiary Term Loan
Agreement and Credit Agreement
referred to below
Ladies and Gentlemen:
We have acted as special counsel to QMC Media II, Inc. (the "Subsidiary
Borrower") in connection with the Series A Incremental Loan Agreement dated as
of February 8, 2006 (the "Series A Incremental Loan Agreement") between Xxxxx
Media Corp. (the "Company" and, together with the Subsidiary Borrower, the
"Borrowers"), the Subsidiary Borrower, the Subsidiary Guarantors named therein,
the Series A Incremental Lenders party thereto (the "Series A Incremental
Lenders") and JPMorgan Chase Bank, N.A. (the "Administrative Agent"), which
Series A Incremental Loan Agreement is being entered into pursuant to Section
2.01(c) of the Credit Agreement dated as of September 30, 2005 (as amended, the
"Credit Agreement") between the Borrowers, the Subsidiary Guarantors party
thereto, the lenders party thereto and the Administrative Agent. Terms defined
in the Series A Incremental Loan Agreement and in the Credit Agreement are used
herein as defined therein. This opinion is being delivered pursuant to clause
(b)(i) of Article IV of the Series A Incremental Loan Agreement.
In rendering the opinions expressed below, we have examined the following
agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Subsidiary Borrower Designation Letter dated as of February 8,
2006 executed between the Company, the Subsidiary Borrower and the
Administrative Agent (the "Subsidiary Borrower Designation Letter");
Form of Opinion of Special Puerto Rico Counsel to Subsidiary Borrower
-2-
(c) the Series A Incremental Loan Agreement (together with the Credit
Agreement and the Subsidiary Borrower Designation Letter, the
"Credit Documents"); and
(d) such records of the Subsidiary Borrower and such other documents as
we have deemed necessary as a basis for the opinions expressed
below.
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 or
certificates of governmental officials and upon representations made
in or pursuant to the Credit Documents and certificates and/or
opinions of appropriate representatives of the Subsidiary Borrower.
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 Subsidiary
Borrower):
(i) such documents have been duly authorized by, have been duly executed
and delivered by, and constitute legal, valid, binding and
enforceable obligations of, all of the parties to such documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and validly
existing and have the power and authority (corporate or other) to
execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the comments
and qualifications set forth below, and having considered such questions of law
as we have deemed necessary as a basis for the opinions expressed below, we are
of the opinion that:
1. The Subsidiary Borrower is a corporation duly organized, validly
existing and in good standing under the laws of Puerto Rico.
2. The Subsidiary Borrower has all requisite corporate or other power
to execute and deliver, and to perform its obligations under, the
Subsidiary Borrower Designation Letter and the Series A Incremental
Loan Agreement.
3. The execution, delivery and performance by the Subsidiary Borrower
of the Subsidiary Borrower Designation Letter and the Series A
Incremental Loan
Form of Opinion of Special Puerto Rico Counsel to Subsidiary Borrower
-3-
Agreement have been duly authorized by all necessary corporate or
other action on the part of the Subsidiary Borrower.
4. The Subsidiary Borrower Designation Letter and the Series A
Incremental Loan Agreement have each been duly executed and
delivered by the Subsidiary Borrower.
5. Under Puerto Rican conflict of laws principles, the stated choice of
New York law to govern the Credit Documents will be honored by the
courts of Puerto Rico 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
Puerto Rico, or if a Puerto Rican court were to apply the law of
Puerto Rico to the Credit Documents, each Credit Document would
nevertheless constitute the legal, valid and binding obligation of
the Subsidiary Borrower, enforceable against the Subsidiary Borrower
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) and the corresponding discretion of the court
before which the proceedings may be brought, 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 Puerto Rico for the due execution, delivery or performance
by the Subsidiary Borrower of any of the Credit Documents or for the
borrowings by the Subsidiary Borrower under the Series A Incremental
Loan Agreement.
7. The execution, delivery and performance by the Subsidiary Borrower
of, and the consummation by the Subsidiary Borrower of the
transactions contemplated by, the Credit Documents do not and will
not (a) violate any provision of the charter or by-laws of the
Subsidiary Borrower, (b) violate any applicable Puerto Rican 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 Subsidiary Borrower or any of its
Subsidiaries of which we have knowledge or (d) 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
Form of Opinion of Special Puerto Rico Counsel to Subsidiary Borrower
-4-
the terms of, any agreement or instrument of which we have knowledge
and to which the Subsidiary Borrower or any of its 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 the Subsidiary Borrower pursuant to, the terms of
any such agreement or instrument.
8. We have no knowledge 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 Subsidiary
Borrower or any of its Subsidiaries or any of their respective
properties that, if adversely determined, could have a Material
Adverse Effect.
9. Each of the Credit Agreement and the other Credit Documents to which
the Subsidiary Borrower is a party is in proper legal form under the
laws of Puerto Rico for the enforcement thereof against it, and all
formalities required in Puerto Rico for the validity and
enforceability of each Credit Document (including any necessary
registration, recording or filing with any court or other authority
in such jurisdiction) have been accomplished, and no Indemnified
Taxes or Other Taxes are required to be paid to Puerto Rico, or any
political subdivision thereof or therein, and no notarization is
required, for the validity and enforceability thereof.
In basing the opinions and other matters set forth herein on "our
knowledge" or facts "known to us", the words "our knowledge" and "known to us"
signify that, in the course of our representation of the Subsidiary Borrower in
matters with respect to which we have been engaged by the Subsidiary Borrower,
as counsel, and within the scope of such engagement, no information has come to
our attention which would give us actual knowledge or actual notice or would
otherwise lead us to believe that any such opinions, certificates, statements or
other matters are not accurate or that any of the foregoing documents,
certificates, reports and information on which we have relied are not accurate
and complete.
The foregoing opinions are subject to the following comments and
qualifications:
(i) we express no opinion in this letter as to any provision in the Credit
Documents: (a) which relates to the subject matter jurisdiction of any Federal
court of the United States of America, or any Federal appellate court, to
adjudicate any controversy related to the Agreements and (b) which contains a
waiver of an inconvenient forum;
(ii) we also note that any provision in the Credit Documents which
provides for liquidated damages may not be enforceable if such provision is
punitive, unreasonable or if actual damages are not uncertain and can be
established without difficulty;
Form of Opinion of Special Puerto Rico Counsel to Subsidiary Borrower
-5-
(iii) we express no opinion as to the validity or enforceability of any
provision in the Credit Documents waiving, expressly or by implication, stated
rights, defenses or rights granted by laws, where such waivers are or may be
deemed to be against public policy or prohibited by law;
(iv) we express no opinion as to the effect on the opinions expressed
herein of the compliance or non-compliance of any party (other than the
Subsidiary Borrower) to the Credit Documents with any state, Puerto Rico,
federal or other laws or regulations applicable to it;
(v) we express no opinion as to the validity or enforceability of any
rights to indemnification provided for in the Credit Documents which may be
limited by (a) laws rendering indemnification unenforceable or contrary to
federal or state securities laws and the public policy underlying such laws, and
(b) laws limiting the enforceability of provisions exculpating or exempting a
party from liability, or requiring indemnification of a party, for its own
action or inaction, to the extent such action or inaction involves gross
negligence, recklessness or willful or unlawful conduct;
(vi) we express no opinion as to the validity or enforceability of any
power of attorney or attorney-in-fact provisions contained in any of the Credit
Documents;
(vii) we express no opinion as to the validity or enforceability of any
provision in the Credit Documents that provides that the terms of the Credit
Documents may not be waived or modified except in writing;
(viii) we express no opinion as to any provision of the Credit Documents
insofar as the same authorizes any Person to set-off and apply to or for its
account any deposit or property of any other Person at any time held thereby, on
any indebtedness at any time owing by any Person thereto, to the extent that (x)
the funds to be applied are not then due and payable, (y) the respective Persons
have been opportunely notified of an attachment or claim by a third party
against the funds to be applied, or (z) any such right to set-off is exercised
with respect to escrow deposits, payroll accounts or other special deposit
accounts which, by the express terms on which the same are created, are made
subject to the legal rights of a third party;
(ix) we express no opinion as to the validity or enforceability of the
waivers by any Person in the Credit Documents of the right to a trial by jury.
The foregoing opinions are limited to matters involving the laws of the
Commonwealth of Puerto Rico, and we do not express any opinion as to the law of
any other jurisdiction.
Form of Opinion of Special Puerto Rico Counsel to Subsidiary Borrower
-6-
This opinion letter is provided to you by us as special Puerto Rican
counsel to the Subsidiary Borrower pursuant to pursuant to clause (b)(i) of
Article IV of the Series A Incremental Loan Agreement and may not be relied upon
by any other person or for any purpose other than in connection with the
transactions contemplated by the Credit Documents without our prior written
consent in each instance.
Very truly yours,
Form of Opinion of Special Puerto Rico Counsel to Subsidiary Borrower
ANNEX 2
[Form of Opinion of Counsel to the Credit Parties]
[______], 2006
To the Series A Incremental Lenders
and the Administrative Agent
party to the Subsidiary Term Loan
Agreement and Credit Agreement
referred to below
Ladies and Gentlemen:
We have acted as counsel to QMC Media II, Inc. (the "Subsidiary
Borrower"), Xxxxx Advertising Company ("Holdings"), Xxxxx Media Corp. (herein
the "Company") and the Subsidiary Guarantors, in connection with the Series A
Incremental Loan Agreement dated as of February 8, 2006 (the "Series A
Incremental Loan Agreement") between Xxxxx Media Corp. (the "Company" and,
together with the Subsidiary Borrower, the "Borrowers"), the Subsidiary
Guarantors named therein, the Series A Incremental Lenders party thereto (the
"Series A Incremental Lenders") and JPMorgan Chase Bank, N.A. (the
"Administrative Agent"), which Series A Incremental Loan Agreement is being
entered into pursuant to Section 2.01(c) of the Credit Agreement dated as of
September 30, 2005 (as amended, the "Credit Agreement") between the Borrowers,
the Subsidiary Guarantors party thereto, the lenders party thereto and the
Administrative Agent. Terms defined in the Series A Incremental Loan Agreement
and in the Credit Agreement are used herein as defined therein. This opinion is
being delivered pursuant to Article (b)(ii) of the Series A Incremental Loan
Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Subsidiary Borrower Designation Letter dated as of
February 8, 2006 executed between the Company, the Subsidiary
Borrower and the Administrative Agent (the "Subsidiary
Borrower Designation Letter");
Form of Opinion of Counsel to Credit Parties
-2-
(c) the Series A Incremental Loan Agreement (together with the
Credit Agreement and the Subsidiary Borrower Designation
Letter, the "Credit Documents"); and
(d) such records of the Credit Parties and such other documents as
we have deemed necessary as a basis for the opinions expressed
below.
The Credit Parties other than the Subsidiary Borrower and the subsidiaries
listed on Schedule A attached hereto are collectively referred to as the
"Domestic Credit Parties".
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 or certificates of governmental officials and upon
representations made in or pursuant to the Credit Documents and certificates
and/or opinions 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
Domestic 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.
References to "our knowledge" or equivalent words means the actual
knowledge of the lawyers in this firm responsible for preparing this opinion
after such inquiry as they deemed appropriate, including inquiry of such other
lawyers in the firm and review of such files of the firm as they have identified
as being reasonably likely to have or contain information not otherwise known to
them needed to support the opinions set forth below. References to "after due
inquiry" or equivalent words means after inquiry of the Chief Financial Officer
and General Counsel of Holdings, and of lawyers in the firm reasonably likely to
have knowledge of the matter to which such reference relates.
Form of Opinion of Counsel to Credit Parties
-3-
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 Company is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware. Each Subsidiary of the Company that is
a Domestic Credit Party is a corporation, partnership or other entity duly
organized, validly existing and, to our knowledge, in good standing under
the laws of the state indicated opposite its name in Schedule 4.14 to the
Credit Agreement.
2. Each Domestic 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.
3. The execution, delivery and performance by each Domestic Credit
Party of each Credit Document to which it is a party have been duly
authorized by all necessary corporate or other action on the part of such
Domestic Credit Party.
4. Each Credit Document has been duly executed and delivered by each
Domestic 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, except to the extent the result obtained from applying
New York law would be contrary to the public policy of the State of
Louisiana, provided, however, that we have no knowledge of any Louisiana
public policy interest which could reasonably be expected to result in the
application of Louisiana law to the Credit Documents. 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) and the
corresponding discretion of the court before which the proceedings may be
brought, including, without limitation,
Form of Opinion of Counsel to Credit Parties
-4-
(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
Subsidiary Borrower under the Credit Agreement.
7. The execution, delivery and performance by each Domestic Credit
Party of, and the consummation by each Domestic Credit Party of the
transactions contemplated by, the Credit Documents to which such Domestic
Credit Party is a party do not and will not (a) violate any provision of
the charter or by-laws of any Domestic Credit Party, (b) violate any
applicable Louisiana or federal 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 Domestic 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
Company, 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) and to which the Domestic
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
Domestic Credit Party pursuant to, the terms of any such agreement or
instrument.
8. Except as set forth in Schedule 4.06 to the Credit Agreement, we
have no knowledge (after due inquiry) of any legal or arbitral
proceedings, or any proceedings by or before any governmental or
regulatory authority or agency, pending or threatened against or affecting
the Credit Parties or any of their respective Subsidiaries or any of their
respective properties that, if adversely determined, could have a Material
Adverse Effect.
9. The obligations of the Credit Parties under the Credit Documents
constitute Senior Indebtedness (as defined in the Senior Subordinated
Notes Indentures) for all purposes of the Senior Subordinated Notes
Indentures.
10. The Credit Agreement and the Series A Incremental Loan Agreement
will constitute the "Senior Credit Facility" under and for all purposes of
each of the Senior Subordinated Notes Indentures.
Form of Opinion of Counsel to Credit Parties
-5-
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 10.03 of the Credit Agreement (and
any similar provisions in any of the other Credit Documents) may be
limited by (i) laws rendering unenforceable indemnification contrary to
Federal or state securities laws and the public policy underlying such
laws and (ii) laws limiting the enforceability of provisions exculpating
or exempting a party, or requiring indemnification of a party for,
liability for its own action or inaction, to the extent the action or
inaction involves gross negligence, recklessness, willful misconduct or
unlawful conduct.
(B) 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.
(C) 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 limits 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) Section 3.06 or
3.09 of the Credit Agreement (and any similar provisions in any of the
other Credit Documents) and (iv) 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.
(D) 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.
(E) The opinions expressed herein as of the date hereof, and except
as may otherwise be provided herein, we have no obligation to advise you
as to any change in the matters, factual, legal or otherwise, set forth
herein after the date of this letter. Without limitation of the foregoing,
our opinions in paragraphs 9 and 10 are limited to the Credit Documents
and Senior Subordinated Notes Indentures as in effect as of the date
hereof.
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
-6-
other than those of the United States of America and the State of Louisiana, and
we express no opinion as to the laws of any jurisdiction other than those of the
United States of America, the State of Louisiana and the General Corporation Law
of the State of Delaware.
At the request of our clients, this opinion letter is, pursuant to
Section (b)(ii) of Article IV of the Series A Incremental Loan Agreement,
provided to you by us in our capacity as counsel to the Credit Parties and may
not be relied upon by any Person for any purpose other than in connection with
the transactions contemplated by the Credit Agreement without, in each instance,
our prior written consent.
Very truly yours,
Form of Opinion of Counsel to Credit Parties
-7-
SCHEDULE A
Subsidiary Name Merged/Consolidated into:
Transit America Las Vegas, L.L.C. merged into Triumph Outdoor Holdings, LLC
Xxxxx Advertising of New Orleans, LLC merged into Triumph Outdoor Holdings, LLC
Trans West Outdoor Advertising, Inc. merged into Xxxxx California Acquisition Corporation
Form of Opinion of Counsel to Credit Parties
ANNEX 3
[Form of Opinion of Special Counsel]
[Date]
To the Series A Incremental Lenders
and the Administrative Agent
party to the Subsidiary Term Loan
Agreement and Credit Agreement
referred to below
Ladies and Gentlemen:
We have acted as special New York counsel to JPMorgan Chase Bank,
N.A., as Administrative Agent, under the Series A Incremental Loan Agreement
dated as of February 8, 2006 (the "Series A Incremental Loan Agreement") between
Xxxxx Advertising of Puerto Rico (the "Subsidiary Borrower"), Xxxxx Media Corp.
(the "Company" and, together with the Subsidiary Borrower, the "Borrowers"), the
Subsidiary Guarantors named therein, the Series A Incremental Lenders party
thereto (the "Series A Incremental Lenders") and JPMorgan Chase Bank, N.A., as
Administrative Agent (the "Administrative Agent"), which Series A Incremental
Loan Agreement is being entered into pursuant to Section 2.01(c) of the Credit
Agreement dated as of September 30, 2005 (as amended, the "Credit Agreement")
between the Borrowers, the Subsidiary Guarantors party thereto, the lenders
party thereto and the Administrative Agent. Terms defined in the Series A
Incremental Loan Agreement and in the Credit Agreement are used herein as
defined therein. This opinion is being delivered pursuant to clause (c) of
Article IV of the Series A Incremental Loan Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Subsidiary Borrower Designation Letter dated as of
February 8, 2006 executed between the Company, the Subsidiary
Borrower and the Administrative Agent (the "Subsidiary
Borrower Designation Letter"); and
(c) the Series A Incremental Loan Agreement (together with the
Credit Agreement and the Subsidiary Borrower Designation
Letter, the "Credit Documents").
Form of Opinion of Special Counsel
-2-
The Credit Parties, other than the Subsidiary Borrower, are collectively
referred to as the "Domestic Credit Parties".
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.
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;
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 each of the Credit Documents
constitutes the legal, valid and binding obligation of each Credit Party party
thereto, enforceable against such Credit Party in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or other similar laws relating to or affecting
the rights of creditors generally and except as the enforceability of the Credit
Documents is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b) concepts of
materiality, reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 10.03 of the Credit Agreement (and
any similar provisions in any of the other Credit Documents) may be
limited by laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent the action or inaction
involves gross negligence, recklessness, willful misconduct or unlawful
conduct.
(B) Clause (iii) of the second sentence of Section 3.02 of the
Credit Agreement (and any similar provisions in any of the other Credit
Documents) may not be
Form of Opinion of Special Counsel
-3-
enforceable to the extent that the Guaranteed Obligations (as defined in
the Credit Agreement) are materially modified.
(C) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(D) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest, fees or other charges such Lender may
impose for the loan or use of money or other credit, (ii) the 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, (iv) the waiver of inconvenient forum set
forth in the last sentence of Section 10.09(c) of the Credit Agreement,
and any similar provision in any of the other Credit Documents, 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 (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
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.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction.
At the request of our clients, this opinion is rendered solely to
you in connection with the above matter. This opinion may not be relied upon by
you for any other purpose or relied upon by any other Person (other than your
successors and assigns as Lenders and Persons that acquire participations in
your extensions of credit under the Credit Agreement) without our prior written
consent.
Very truly yours,
RJW/WFC
Form of Opinion of Special Counsel
