Exhibit 4.2
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TRANCHE C TERM LOAN AGREEMENT
dated as of
February 6, 2004
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XXXXX MEDIA CORP.
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JPMORGAN SECURITIES INC.
as Lead Arranger and Bookrunner
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JPMORGAN CHASE BANK,
as Administrative Agent
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TRANCHE C TERM LOAN AGREEMENT
TRANCHE C TERM LOAN AGREEMENT dated as of February 6, 2004 between
XXXXX MEDIA CORP. (the "Borrower"), the SUBSIDIARY GUARANTORS party hereto (the
"Subsidiary Guarantors"), the TRANCHE C TERM LOAN LENDERS party hereto
(including each Tranche C Lender as defined below that becomes a party hereto
pursuant to a Lender Addendum as defined below and JPMORGAN CHASE BANK, as
Administrative Agent for the lenders (in such capacity, together with its
successors in such capacity, the "Administrative Agent").
The Borrower, the Subsidiary Guarantors party thereto, the lenders
party thereto and JPMorgan Chase Bank, as the Administrative Agent, are parties
to a Credit Agreement dated as of March 7, 2003 (as amended pursuant to
Amendment No. 1 thereto being executed concurrently with this Agreement, the
"Credit Agreement").
Section 2.01(d) of the Credit Agreement (as amended by Amendment No.
1 thereto) contemplates that at any time and from time to time, the Borrower may
request that one or more persons (which may include the Lenders under and as
defined in the Credit Agreement) offer to enter into commitments to make (or, as
provided herein, to convert Tranche B Term Loans into) Incremental Loans under
and as defined in said Section 2.01(d), subject to the conditions specified in
said Section 2.01(d). The Borrower has now requested that $550,000,000 in
aggregate principal amount of Incremental Loans under said Section 2.01(d) be
made available to it in a single series of term loans. The Tranche C Lenders (as
defined below) are willing to make (or to convert Tranche B Term Loans into)
such loans on the terms and conditions set forth below and in accordance with
the applicable provisions of the Credit Agreement, and accordingly, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS
Terms defined in the Credit Agreement are used herein as defined
therein. In addition, the following terms have the meanings specified below:
"Lender Addendum" means, with respect to any Tranche C Lender, a
Lender Addendum substantially in form of Annex 1 hereto, dated as of the
date hereof and executed and delivered by such Tranche C Lender as
provided in Section 2.05.
"Tranche C Term Loan" means a Loan made (or, as provided herein,
converted from Tranche B Term Loans) pursuant to this Agreement which
shall constitute a single Series of Incremental Loans under Section
2.01(d) of the Credit Agreement.
Tranche C Term Loan Agreement
- 2 -
"Tranche C Commitment" means, with respect to each Tranche C Lender,
the commitment of such Lender to make Tranche C Term Loans hereunder (or,
as provided herein, to convert Tranche B Term Loans into Tranche C Terms
Loans hereunder). The amount of each Tranche C Lender's Tranche C
Commitment is set forth in the Lender Addendum executed and delivered by
such Tranche C Lender. The aggregate original amount of the Tranche C
Commitments is $550,000,000.
"Tranche C Term Loan Effective Date" means the date on which the
conditions specified in Article IV are satisfied (or waived by the
Required Tranche C Lenders).
"Tranche C Lender" means (a) on the date hereof, a Lender that has
executed and delivered a Lender Addendum and (b) thereafter, the Lenders
from time to time holding Tranche C Commitments or Tranche C Term Loans
after giving effect to any assignments thereof pursuant to Section 10.04
of the Credit Agreement.
ARTICLE II
TRANCHE C TERM LOANS
Section 2.01. Commitments. Subject to the terms and conditions set
forth herein and in the Credit Agreement, each Tranche C Lender agrees to make
Tranche C Term Loans to the Borrower (or, as provided below, to convert Tranche
B Term Loans), in an aggregate principal amount equal to such Tranche C Lender's
Tranche C Commitment. Proceeds of Tranche C Term Loans shall be available solely
for application to the prepayment of the outstanding principal of and accrued
and unpaid interest on the Tranche B Term Loans.
Notwithstanding the foregoing, it is understood and agreed that any
Tranche C Lender that also holds any Tranche B Term Loans may elect, by notice
to the Administrative Agent, that the Tranche C Term Loans required to be made
by such Lender on the Amendment No. 1 Effective Date shall, to the extent of the
portion of such Tranche C Term Loans not exceeding the aggregate principal
amount of the Tranche B Term Loans of such Lender (net of any Tranche B Term
Loans being concurrently prepaid or concurrently converted into Additional
Tranche A Term Loans of such Lender), be made through such Tranche B Term Loans
being converted into Tranche C Term Loans (and each reference in this Agreement
or the Credit Agreement to the "making" of any Tranche C Term Loan, or words of
similar import, shall in the case of such Lender be deemed to include such
conversion). Without limiting the generality of the foregoing, it is understood
that the Tranche C Term Loans into which the Tranche B Term Loans are so
converted shall be treated identically to the Tranche C Terms Loans being funded
(and not being converted from Tranche B Term Loans) on the Tranche C Term Loan
Effective Date and shall have identical Interest Periods in identical
proportions and durations as all other Tranche C Loans (and, for these purposes,
any Interest Periods for Tranche B Term Loans that are Eurodollar Loans in
effect on the Tranche C Term Loan Effective Date shall be terminated on the
Tranche C Term Loan Effective Date, and any such converting Lender shall be paid
Tranche C Term Loan Agreement
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accrued interest on its Tranche B Term Loans being so converted, together with
any amounts payable under Section 2.14 of the Credit Agreement, as if the
Tranche B Term Loans were being prepaid in full on the Tranche C Term Loan
Effective Date).
Section 2.02. Termination of Commitments. Unless previously
terminated, the Tranche C Commitments shall terminate after the Borrowing of the
Tranche C Term Loans on the Tranche C Term Loan Effective Date.
Section 2.03. Repayment of Loans. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the Tranche C Lenders the principal of the Tranche C Term Loans in twenty-two
installments payable on the Principal Payment Dates as follows:
Principal Payment Date: Amount of Installment:
----------------------- ----------------------
March 31, 2005 $ 1,375,000
June 30, 2005 $ 1,375,000
September 30, 2005 $ 1,375,000
December 31, 2005 $ 1,375,000
March 31, 2006 $ 1,375,000
June 30, 2006 $ 1,375,000
September 30, 2006 $ 1,375,000
December 31, 2006 $ 1,375,000
March 31, 2007 $ 1,375,000
June 30, 2007 $ 1,375,000
September 30, 2007 $ 1,375,000
December 31, 2007 $ 1,375,000
March 31, 2008 $ 1,375,000
June 30, 2008 $ 1,375,000
September 30, 2008 $ 1,375,000
December 31, 2008 $ 1,375,000
March 31, 2009 $ 1,375,000
June 30, 2009 $ 1,375,000
September 30, 2009 $ 1,375,000
December 31, 2009 $ 1,375,000
March 31, 2010 $261,250,000
June 30, 2010 $261,250,000
Tranche C Term Loan Agreement
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Notwithstanding the foregoing, if on any date (the "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 (other than the Senior
Secured Notes) shall fall within six months of the Test Date then the Tranche C
Term 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 Tranche C
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 Tranche C Term Loans, for any day, 1.00% with respect to any Base Rate
Loan and 2.00% with respect to any Eurodollar Loan.
Section 2.05. Delivery of Lender Addenda. Each Tranche C Lender
shall become a party to this Agreement by delivering to the Administrative Agent
a Lender Addendum duly executed by such Tranche C Lender, the Borrower and the
Administrative Agent.
Section 2.06. Status of Agreement. Tranche C Commitments of each
Tranche C Lender constitute Incremental Loan Commitments and each Tranche C
Lender constitutes an Incremental Loan Lender, in each case under and for all
purposes of the Credit Agreement. The Tranche C Term Loans constitute a single
"Series" of Incremental Loans under Section 2.01(d) of the Credit Agreement.
ARTICLE III
REPRESENTATION AND WARRANTIES; NO DEFAULTS
The Borrower and each Subsidiary Guarantor represents and warrants
to the Lenders and the Administrative Agent as to itself and each of its
subsidiaries that, after giving effect to the provisions hereof, (i) each of the
representations and warranties set forth in Article IV of the Credit Agreement
is true and correct on and as of the date hereof as if made on and as of the
date hereof (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, such representation or warranty is true
and correct as of such specific date) and as if each reference therein to the
Credit Agreement or Loan Documents included reference to this Agreement and (ii)
no Default or Event of Default has occurred and is continuing.
Tranche C Term Loan Agreement
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ARTICLE IV
CONDITIONS
The obligations of the Tranche C Lenders to make (or, as provided
herein, to convert Tranche B Term Loans into) the Tranche C Term Loans is
subject to the conditions precedent that each of the following conditions shall
have been satisfied (or waived by the Required Tranche C Lenders):
(a) Counterparts of Agreement. The Administrative Agent (or Special
Counsel) shall have received from each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(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 Tranche C Lenders and dated
the Tranche C Term Loan Effective Date) of Kean, Miller, Hawthorne,
X'Xxxxxx, XxXxxxx & Xxxxxx, L.L.P., counsel to the Credit Parties,
substantially in the form of Annex 2 (and each Credit Party hereby
requests such counsel to deliver such opinion).
(c) Opinion of Special Counsel. The Administrative Agent shall have
received a favorable written legal opinion (addressed to the
Administrative Agent and the Tranche C Lenders and dated the Tranche C
Term 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 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 the Administrative
Agent.
(e) Notes. The Administrative Agent (or Special Counsel) shall have
received for each Tranche C Lender that shall have requested a promissory
note at least one Business Day prior to the Tranche C Term 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 Tranche C
Term Loan Effective Date,
Tranche C Term Loan Agreement
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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) Prepayment of Tranche B Term Loans. The principal of and
interest on and all other amounts (including any amounts payable under
Section 2.14 of the Credit Agreement) owing in respect of the Tranche B
Term Loans shall have been (or shall be concurrently) prepaid in full from
funds available to the Borrower and the proceeds of the Tranche C Term
Loans and Additional Tranche A Term Loans.
(h) Additional Conditions. Each of the conditions precedent set
forth in Sections 5.02 and 5.03 of the Credit Agreement to the making of
(or, as provided herein, to converting Tranche B Term Loans into) Tranche
C Term Loans on the Tranche C Term Loan Effective Date shall have been
satisfied, and the Administrative Agent (or Special Counsel) shall have
received a certificate to such effect, dated the Tranche C Term Loan
Effective Date and signed by the President, Vice President or a Financial
Officer of the Borrower.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. 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 Incremental Loans provided for herein and
the preparation of this Agreement.
SECTION 5.02. 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 5.03. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the law of the State of New York.
Tranche C Term Loan Agreement
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SECTION 5.04. 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.
Tranche C Term 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.
XXXXX MEDIA CORP.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Title: Chief Financial Officer
SUBSIDIARY GUARANTORS
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.
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.
CANADIAN TODS LIMITED
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.
XXXXX CENTRAL OUTDOOR, INC.
LAMAR ADVANTAGE HOLDING COMPANY
Tranche C Term Loan Agreement
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LAMAR OHIO OUTDOOR HOLDING CORP.
LAMAR BENCHES, INC.
LAMAR I-40 WEST, INC.
XXXXX ADVERTISING OF OKLAHOMA, INC.
LAMAR OKLAHOMA HOLDING COMPANY, INC.
XXXXXX DEVELOPMENT CORPORATION
XXXXXXX DEVELOPMENT COMPANY
REVOLUTION OUTDOOR ADVERTISING, INC.
OUTDOOR MARKETING SYSTEMS, INC.
XXXXX ADVERTISING SOUTHWEST, INC.
LAMAR DOA TENNESSEE HOLDINGS, INC.
LAMAR DOA TENNESSEE, INC.
TRANS WEST OUTDOOR ADVERTISING, INC.
PREMERE OUTDOOR, INC.
HAM DEVELOPMENT CORPORATION
10 OUTDOOR ADVERTISING, INC.
LAMAR CALIFORNIA ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President -Finance and
Chief Financial Officer
Tranche C Term Loan Agreement
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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.
Its: Managing Member
By: Xxxxx Media Corp., Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
INTERSTATE LOGOS, L.L.C.
By: Xxxxx Media Corp.,
Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
Tranche C Term Loan Agreement
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XXXXX ADVERTISING OF PENN, LLC
XXXXX ADVERTISING OF LOUISIANA, L.L.C.
LAMAR TENNESSEE, L.L.C.
LAMAR AIR, L.L.C.
LC BILLBOARD, L.L.C.
ADVANTAGE ADVERTISING, LLC
By: The Xxxxx Company, L.L.C.
Its: Managing Member
By: Xxxxx Media Corp.
Its: 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: Managing Member
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
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Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
Tranche C Term Loan Agreement
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TLC PROPERTIES, L.L.C.
TLC FARMS, L.L.C.
By: TLC Properties, Inc.
Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
OUTDOOR PROMOTIONS WEST, LLC
TRANSIT AMERICA LAS VEGAS, L.L.C.
XXXXX TRANSIT ADVERTISING OF NEW
ORLEANS, LLC
TRIUMPH OUTDOOR RHODE ISLAND, LLC
By: Triumph Outdoor Holdings, LLC
Its: Managing Member
By: Lamar Central Outdoor, Inc.
Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
TRIUMPH OUTDOOR HOLDINGS, LLC
LAMAR ADVANTAGE GP COMPANY, LLC
LAMAR ADVANTAGE LP COMPANY, LLC
By: Lamar Central Outdoor, Inc.
Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President - Finance and
Chief Financial Officer
Tranche C Term Loan Agreement
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LAMAR ADVANTAGE OUTDOOR
COMPANY, L.P.
By: Lamar Advantage GP Company, LLC
Its: General Partner
By: Lamar Central Outdoor, Inc.
Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President-Finance and
Chief Financial Officer
LAMAR T.T.R., L.L.C.
By: Xxxxx Advertising of Youngstown, Inc.
Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President-Finance and
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 X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President-Finance and
Chief Financial Officer
Tranche C Term Loan Agreement
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OUTDOOR MARKETING SYSTEMS, L.L.C.
By: Outdoor Marketing Systems, Inc.
Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President-Finance and
Chief Financial Officer
XXXXXXX AD AGENCY, L.L.C.
By: Xxxxx Central Outdoor, Inc.
Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President-Finance and
Chief Financial Officer
Tranche C Term Loan Agreement
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JPMORGAN CHASE BANK,
as Administrative Agent
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
By its signature below, the undersigned hereby consents to the
foregoing Tranche C Term Loan Agreement and confirms that the Tranche C Term
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 X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
Tranche C Term Loan Agreement
ANNEX 1
[Form Of Lender Addendum]
LENDER ADDENDUM
Reference is made to the Tranche C Term Loan Agreement dated as of
February 6, 2004 (the "Tranche C Term Loan Agreement") between Xxxxx Media Corp.
(the "Borrower"), the Subsidiary Guarantors named therein, the Tranche C Lenders
named therein (the "Tranche C Lenders"), and JPMorgan Chase Bank, formerly known
as The Chase Manhattan Bank, as Administrative Agent (the "Administrative
Agent"), which Tranche C Term Loan Agreement is being entered into pursuant to
Section 2.01(d) of the Credit Agreement dated as of March 7, 2003 (as amended by
Amendment No. 1 dated as of January 28, 2004, the "Credit Agreement") between
the Borrower, the Subsidiary Guarantors party thereto, the lenders party thereto
and the Administrative Agent. Terms used but not defined in this Lender Addendum
have the meanings assigned to such terms in the Tranche C Term Loan Agreement
and the Credit Agreement.
By its signature below, and subject to the acceptance hereof by the
Borrower and the Administrative Agent as provided below, the undersigned hereby
becomes a Tranche C Lender under the Tranche C Term Loan Agreement, having the
Tranche C Term Loan Commitment set forth below opposite its name.
It is understood and agreed that if the undersigned also holds any
Tranche B Term Loans under the Credit Agreement, the undersigned may elect, by
notice to the Administrative Agent, that the Tranche C Term Loans required to be
made by the undersigned on the Amendment No. 1 Effective Date shall, to the
extent of the portion of such Tranche C Term Loans not exceeding the aggregate
principal amount of the Tranche B Term Loans of the undersigned (net of any
Tranche B Term Loans being concurrently prepaid or concurrently converted into
Additional Tranche A Term Loans of the undersigned), be made through such
Tranche B Term Loans being converted into Tranche C Term Loans (and each
reference in the Tranche C Term Loan Agreement or the Credit Agreement to the
"making" of any Tranche C Term Loan, or words of similar import, shall in the
case of the undersigned be deemed to include such conversion).
This Lender Addendum shall be governed by, and construed in
accordance with, the law of the State of New York.
This Lender Addendum may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract.
Lender Addendum
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IN WITNESS WHEREOF, the parties hereto have caused this Lender
Addendum to be duly executed and delivered by their proper and duly authorized
officers as of this __ day of __________, 2004.
Amount of Tranche C _____________________________________
Commitment: [Name of Tranche C Lender]
$ _________________
By: _________________________________
Name:
Title:
Accepted and agreed:
JPMORGAN CHASE BANK, formerly
known as THE CHASE MANHATTAN BANK,
as Administrative Agent
By: _________________________________
Name:
Title:
XXXXX MEDIA CORP.
By: _________________________________
Name:
Title:
Lender Addendum
ANNEX 2
[Form of Opinion of Counsel to the Credit Parties]
February 6, 2004
To the Tranche C Lenders
and the Administrative Agent
party to the Tranche C
Term Loan Agreement and
Credit Agreement referred to below
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 Tranche C Term Loan Agreement dated as of February 6, 2004
(the "Tranche C Term Loan Agreement") between Xxxxx Media Corp. (the
"Borrower"), the Subsidiary Guarantors named therein, the Tranche C Lenders
party thereto (the "Tranche C Lenders") and JPMorgan Chase Bank (the
"Administrative Agent"), which Tranche C Term Loan Agreement is being entered
into pursuant to Section 2.01(d) of the Credit Agreement dated as of March 7,
2003 (as amended by Amendment No. 1 dated as of January 28, 2004, the "Credit
Agreement") between the Borrower, the Subsidiary Guarantors party thereto, the
lenders party thereto and the Administrative Agent. Terms defined in the Tranche
C Term Loan Agreement and in the Credit Agreement are used herein as defined
therein. This opinion is being delivered pursuant to clause (b) of Article IV of
the Tranche C Term Loan Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Tranche C Term Loan Agreement;
(b) the Credit Agreement;
(c) Amendment No. 1 to the Credit Agreement; 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.
Form of Opinion of Counsel to Credit Parties
- 2 -
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 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
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;
(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 Tranche C Term Loan Agreement has become effective in
accordance with the provisions of Section 5.02 thereof.
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.
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,
Form of Opinion of Counsel to Credit Parties
- 3 -
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 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.
3. The execution, delivery and performance by each 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 Credit Party.
4. Each Credit Document has been duly executed and delivered by each
Credit Party party thereto.
5. Under Louisiana conflict of laws principles, the stated choice of
New York law to govern the Credit Documents will be honored by the courts
of the State of Louisiana and the Credit Documents will be construed in
accordance with, and will be treated as being governed by, the law of the
State of New York, 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, (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.
Form of Opinion of Counsel to Credit Parties
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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 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 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) and
to which the Credit Parties or any of their respective Subsidiaries is a
party or by which any of them is bound or to which any of them is subject,
or result in the creation or imposition of any Lien upon any property of
any Credit Party pursuant to, the terms of any such agreement or
instrument.
8. Except as set forth in Schedule 4.06 to the Credit Agreement, we
have no knowledge (after due inquiry) of any legal or arbitral
proceedings, or any proceedings by or before any governmental or
regulatory authority or agency, pending or threatened against or affecting
the Credit Parties or any of their respective Subsidiaries or any of their
respective properties that, if adversely determined, could have a Material
Adverse Effect.
9. The obligations of the Credit Parties under the Loan 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 Tranche C Term Loan Agreement will
constitute the "Senior Credit Facility" under and for all purposes of each
of the Senior Subordinated Notes Indentures.
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.
Form of Opinion of Counsel to Credit Parties
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(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 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) 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 Loan 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 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) of Article IV of the Tranche C Term 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
ANNEX 3
[Form of Opinion of Special Counsel to the Administrative Agent]
[Date]
To the Tranche C Lenders
and the Administrative Agent
party to the Tranche C
Term Loan Agreement and
Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as special New York counsel to the Administrative
Agent under the Tranche C Term Loan Agreement dated as of February 6, 2004 (the
"Tranche C Term Loan Agreement") between Xxxxx Media Corp. (the "Borrower"), the
Subsidiary Guarantors named therein, the Tranche C Lenders party thereto (the
"Tranche C Lenders") and JPMorgan Chase Bank, as Administrative Agent (the
"Administrative Agent"), which Tranche C Term Loan Agreement is being entered
into pursuant to Section 2.01(d) of the Credit Agreement dated as of March 7,
2003 (as amended by Amendment No. 1 dated as of January 28, 2004, the "Credit
Agreement") between Borrower, the Subsidiary Guarantors party thereto, the
lenders party thereto and the Administrative Agent. Terms defined in the Tranche
C Term 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 Tranche C Term Loan Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Tranche C Term Loan Agreement;
(b) the Credit Agreement;
(c) Amendment No. 1 to the Credit 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.
Form of Opinion of Special Counsel
- 2 -
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 Tranche C Term Loan 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 of the Credit Agreement may
be limited by (i) laws rendering unenforceable indemnification contrary to
Federal or state securities laws and the public policy underlying such
laws and (ii) laws limiting the enforceability of provisions exculpating
or exempting a party, or requiring indemnification of a party for,
liability for its own action or inaction, to the extent the action or
inaction involves gross negligence, recklessness, willful misconduct or
unlawful conduct.
(B) Clause (iii) of the second sentence of Section 3.02 of the
Credit Agreement may not be enforceable to the extent that the Guaranteed
Obligations (as defined in the Credit Agreement) are materially modified.
(C) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
Form of Opinion of Special Counsel
- 3 -
(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) Section 3.06 or
3.09 of the Credit Agreement, (iv) 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 Loan
Documents and (v) 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.
(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 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,
Form of Opinion of Special Counsel
